OPINION: Arthur Taylor is a not a man to be messed with. He has over 150 convictions, ranging from fraud to armed robbery to kidnapping.
In 1998, he teamed up with murderer Graeme Burton and some others to burst out of Paremoremo prison, made it 200 kilometres, and then hid in a fancy Coromandel holiday home.
But this time, instead of running away from the legal system, he’s tackling it head on. Taylor has been serving his current sentence since 2006, and is imprisoned at Waikeria. Yet he has managed to take two legal cases all the way to the Supreme Court – Taylor v Attorney-General and Ngaronoa v Attorney-General.
What makes these two cases truly fascinating is that they could each set a precedent for undermining Parliament’s dominance in our legal system.
Both Taylor v Attorney-General and Ngaronoa v Attorney-General are attacks on the Electoral (Disqualification of Sentenced Prisoners) Amendment Act – a law passed in 2010 which bans all prisoners from voting. Prior to 2010, prisoners serving a sentence of less than three years could vote.
Taylor v Attorney-General attacks the substance of the ban, alleging that the 2010 law violates the right to vote enshrined in the New Zealand Bill of Rights Act, a law setting out the rights to which every New Zealander is entitled.
This is because New Zealand’s political system is dominated by the concept of ‘Parliamentary supremacy’, which means that Parliament can pass whatever law it wishes to. Hypothetically our Parliament could pass a law requiring the execution of all blue-eyed children, and no court could strike that law down.
Indeed, in the last three years alone Parliament has considered 15 different bills which the Attorney-General believed could violate the rights contained in the New Zealand Bill of Rights Act.
Parliamentary supremacy is a hard idea to get your head around, particularly for those of us used to the pop-culture image of a United States-esque Supreme Court declaring laws to be unconstitutional and invalid.
As a result of the challenge posed by the concept of Parliamentary supremacy, Taylor didn’t challenge Parliament’s ability to pass a law violating the Bill of Rights Act. Instead, Taylor challenged the appropriateness of passing such a law.
If Taylor could get the courts to acknowledge that there was an unjustifiable violation of rights, it would be a sizeable moral victory – strengthening attempts to get Parliament to change the law back to what it was.
So Taylor went to court, alleging that banning prisoners from voting was an unjustifiable limitation of the right – contained in the NZ Bill of Rights Act – of all people over 18 to vote.
And in July 2015 the High Court agreed – shocking the legal community by issuing a ‘declaration of inconsistency’. In essence, the Court said that the law banning prisoners from voting was inconsistent with rights contained in the NZ Bill of Rights Act, and called Parliament’s attention to the inconsistency. It does not invalidate the law banning prisoners from voting, but it is a strong show of solidarity from the courts.
Notably, the NZ Bill of Rights Act (or any other law) does not provide the courts with the formal power to challenge the merit of Parliament’s decisions. A ‘declaration of inconsistency’ has never been made before.
Nonetheless the High Court took the leap, and challenged Parliament’s decision. It was joined by the Court of Appeal, which upheld the High Court’s judgment.
The Supreme Court has heard the arguments from both sides, and is now deciding whether to uphold it once more.
If the Supreme Court sides with Taylor, it would solidify this new power, allowing the higher courts to freely make decisive judicial acknowledgments that Parliament has erred, and demand that it do better.
It would be a strong move from a branch of government long seen as a weaker younger sibling to our overbearing Parliament – and a huge win for Arthur Taylor.
At the same time as he was pursuing Taylor v Attorney-General, Taylor was taking a vastly different approach in the second case he is involved in – Ngaronoa v Attorney-General.
Instead of criticising the substance of the law banning prisoners from voting, Ngaronoa v Attorney-General attacks the method by which the law was passed.
New Zealand has no ‘supreme’ law (a law with which all other laws must be consistent). But we do have ‘entrenched’ law. Section 268 of the Electoral Act declares that in order to repeal or amend certain protected sections of the Electoral Act, 75 per cent of Parliament must vote for the amendment.
One of those protected sections is Section 74, which declares that every adult New Zealand citizen is entitled to vote (with some restrictions regarding residency in NZ).
The existence of the prisoner voting ban, which prohibits roughly 9200 New Zealand adults from voting, might appear like an attack on Section 74.
In Ngaronoa v Attorney-General, Taylor asserts that while the law banning prisoners from voting was not a formal amendment to Section 74, the ban undermines Section 74 so severely that it should be viewed as an amendment to the section.
Only 52 per cent of Parliament supported the law banning prisoners from voting – nowhere near the 75 per cent of Parliament required by Section 268. If the Supreme Court accepted that the prisoner voting ban was essentially an amendment to Section 74, the Supreme Court could strike the ban down as an invalid piece of law.
Predictably, the Solicitor-General Una Jagose (the Government’s top lawyer) doesn’t agree with the idea that the prisoner voting ban is an amendment to Section 74. The entrenchment provision is very specific, and could be interpreted as only protecting certain parts of Section 74.
However even Jagose conceded that if the ban was found to be an amendment to the protected parts of Section 74, the Supreme Court would have the power to strike down the ban as invalid.
In essence, Taylor is asking the Supreme Court to strike down a law passed by Parliament, with the justification that it is upholding the will of Parliament. Smart.
It is far from certain that the Supreme Court will decide in favour of Taylor in either of these cases, and the Court still has months to make its decisions. However, even if Taylor can’t surmount this final hurdle, his campaign has already had a major impact.
Andrew Little (the current Minister of Justice) and David Parker (the current Attorney-General) have promised to change the law so that the High Court, Court of Appeals and Supreme Court have the power to issue declarations of inconsistency when Parliament violates the NZBORA. Further, their proposed law would require Parliament to respond to the concerns of the courts.
Jagose’s concession that the courts have the power to strike down legislation which violates entrenchment provisions is also significant. It is an influential acknowledgement that the judiciary has a role to play in policing the behaviour of Parliament, even if it is within the framework of Parliamentary supremacy.
So whatever you may think of the prisoner voting ban itself, the wider impact of Taylor’s legal campaign is huge. It has helped in slowly shifting the balance of power in our system, adding consistency and constraints to a doctrine of Parliamentary supremacy which has existed unchecked for so long.
– Peter McKenzie is a Law and Politics student at Victoria University.
This story was originally published in Newsroom.co.nz and is republished with permission.
Source : Stuff