Symposium: Attorney-General v Taylor: An Example of the Cautious, Incremental and ‘Common Law’ Approach to Constitutional Change in New Zealand

Janet McLean

University of Auckland

In the case of Attorney-General v Taylor [2018] NZSC 104 the New Zealand Supreme Court confirmed by a 3:2 majority that it has the power to issue a declaration that legislation is inconsistent with provisions of the New Zealand Bill of Rights Act 1990 (“NZ Bill of Rights Act”) and proceeded to grant such a declaration in respect of the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010 which disqualified all serving convicted prisoners from voting. The effect of such a declaration is hortatory given that s 4 of the NZ Bill of Rights Act prohibits the disapplication or invalidation of legislation “by reason only … of this Bill of Rights” and given the absence of any express remedial provisions in the Act requiring the legislature to respond to such a declaration. Prior to the decision, the Labour Party, having newly formed a centre-left government in coalition with New Zealand First and with support from the Greens, announced a proposal in principle to amend the NZ Bill of Rights Act to include an express power to grant a declaration of inconsistency. The Labour Minister for Justice said:

“Declarations of inconsistency can perform an important function by informing Parliament that the senior courts consider an Act of Parliament to be inconsistent with the fundamental human rights affirmed in the Bill of Rights Act.”

Over 29 years the courts and other institutions of government have been engaged in developing a meaningful role for the NZ Bill of Rights – despite its beginnings in compromise following the rejection of a proposal for a supreme law bill of rights.  One strand which emerged almost from the beginning was the judicial development of “effective remedies” for breaches of rights – initially in the form of a special category of bill of rights damages, and of a prima facie exclusion rule in respect of evidence unreasonably obtained. Successive governments deliberately engaged with these judicial developments and either let them run their course (as in the case of damages) or codified them (in the case of exclusion of evidence rules).  The possibility that a declaration of inconsistency could be included in the range of remedies has long been mooted, first in academic writing and later in a series of cases. McGrath J in R v Hansen [2007] NZSC 7 at [253] considered that “normally” it would be sufficient for a court to indicate by way of its ordinary reasoning that legislation falls short of the standards set in the Bill of Rights and that, when the case requires it, the courts have a responsibility to make such an indication.  The view that giving declarations of consistency more formal status would have the effect of strengthening the Bill of Rights appears to have prevailed – though whether and how a formal declaration would strengthen the Bill remains to be seen.

There was no prospect in the Taylor case of an interpretative remedy. This was, then, the first case to bring a claim for a stand-alone declaratory remedy. The majority judges in the Supreme Court (in contrast to the Court of Appeal below) played down the constitutional novelty of the claim and emphasised the ordinariness of declaratory remedies despite the urgings of the Attorney-General that a declaration of inconsistency is distinct from ordinary declarations of legal right with legal consequences. (Elias CJ in particular took a similarly robust approach to declaratory relief in another ground-breaking case decided around the same time in Ngati Whatua Orakei v Attorney-General [2018] NZSC 84).  The majority’s invocation of the well-known proposition “where there is a right there is a remedy” rather begged the question. Whether a declaration is properly to be regarded as a remedy, let alone an effective remedy, was a contentious question over which the Supreme Court split. This was because of the absence (at least as yet) of any mandatory legislative or executive process to reconsider legislation following a declaration. The right-remedy rhetoric was further undermined by the fact that the plaintiff Mr Taylor, serving a sentence of over 3 years, would have been disqualified from voting even before the enactment of the 2010 legislation. His individual rights were not affected by the impugned legislation at stake. The Court of Appeal’s decision not to grant him standing was reversed by the Supreme Court on the cross-appeal. The majority in the Supreme Court took the ordinary, generous, approach to standing which applies in the usual run of public law cases.

What emerges from the majority’s judgment is not a legal right or a remedy as we would usually conceive of it, but the idea that judges ought to be able to evaluate legislation against the rights standard set out in the NZ Bill of Rights Act.  Whether this standard is of the rights as they are stated in Part II of the Act, or of reasonable rights as moderated by s 5 (reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society) contained in Part I of the Act, remains a matter of contention.  The Court was able to avoid that controversy because the lawyers representing the Attorney-General in the litigation chose not to resile from earlier advice to the Attorney-General of the time to the effect that the absolute prohibition on prisoner voting rights was rights infringing and unjustified in a free and democratic society. In a report required by s 7 of the NZ Bill of Rights Act (and Standing Orders) when a bill is inconsistent with rights, the earlier Attorney-General drew attention to the irrationality and disproportionality of the measure (though he supported the passing of the bill without change).

Elias CJ (who has since retired from the Court) has been repeatedly of the view that it is not the proper function of a judge to moderate or dilute rights by reference to reasonable limits or to subject rights to any kind of utilitarian calculus contained in s 5. That calculation, she has said, is for the legislature. Rather, she understands her role as articulating what rights are and require. This is for the benefit of the litigant rather than to inform or assist Parliament. The absence of the power to invalidate legislation liberates judges from unprincipled and pragmatic reasoning. In a case in which the Crown has acknowledged rights inconsistency, Elias CJ suggests that a declaration must be granted – though the other two majority judges leave open the question of how the discretion to grant a declaration is to be exercised. Much else is left unsettled.

The case received little initial response from Ministers – the Minister of Justice saying that prisoners’ voting rights were not a priority on the government’s legislative programme in its first term. Pressure has been maintained, however, after an inquiry into prisoners’ voting rights undertaken by the Waitangi Tribunal which hears grievances against the Crown by Maori people. The Waitangi Tribunal reported on the dramatic overrepresentation of Maori men and women among the prison population and recommended urgent reform giving all prisoners the right to vote. Minister Little described that report as “compelling”. Subsequently the Green Party (support partner of the Labour-New Zealand First coalition) tabled an amendment to the Electoral Amendment Act which has recently passed its first reading. The Minister of Justice has since announced his support for repeal of the 2010 Act in time for prisoners serving less than 3 years to vote at the next General Election. The Opposition leader has vowed to remove completely prisoners’ voting rights if he forms the next government. 

This case illustrates a cautious incremental and “common law” approach to New Zealand constitutional change. There are few constitutional moments, and even when there are they may not be characterised as such in the moment. A variety of institutions are engaged in rights appraisal, protection, consolidation and reform. Alongside the courts there is the Royal Commission on the Electoral Reform who originally justified a three year period of disqualification (comparable with the disqualification period for New Zealanders living overseas), the lawyers in government who vigilantly inform the Attorney-General’s s 7 reports, the Human Rights Commission (which appeared as intervener in Taylor), the lawyers representing the Crown in the litigation who maintained a consistent view that the 2010 legislation breached rights, and the Waitangi Tribunal.

The international influences are numerous and in tension. The litigation follows a series of successful challenges to prisoner voting laws in the UK, ECtHR, Canada and South Africa. But it is also likely that the proposal to reduce prisoner voting rights in 2010 was inspired by that litigation. No doubt the UK Human Rights Act 1998 was a model for declarations of inconsistency. Equally the High Court of Australia’s contention that declaration is not an appropriate judicial function lent heft to the Attorney-General’s argument in the Supreme Court.   

The engagement by politicians with rights is complex in this example and more generally. A strong independent Crown law office advising the Attorney-General and Minister of Justice, a strong party system (which lead to the Attorney-General voting in support of 2010 Bill which he had said was irrational) and a coalition government which at least initially constrained Ministerial reactions but allowed the support party to act, all contribute to the dynamic.

Janet McLean is a Professor of Law at the University of Auckland.

Suggested citation: Janet McLean, “Attorney-General v Taylor: An Example of the Cautious, Incremental and ‘Common Law’ Approach to Constitutional Change in New Zealand” IACL-AIDC Blog (5 December 2019), https://blog-iacl-aidc.org/constitutional-landmark-judgments-in-the-commonwealth/2019/12/5/attorney-general-v-taylor-an-example-of-the-cautious-incremental-and-common-law-approach-to-constitutional-change-in-new-zealand