Breaking the Silence: New Zealand's Courts and Parliament after Attorney-General v Taylor
(2019) 30 Public Law Review 13
5 Pages Posted: 16 Sep 2019
Date Written: May 31, 2019
This short comment discusses two decisions of the New Zealand Supreme Court, Ngaronoa v Attorney-General and Attorney-General v Taylor, arising out of the disenfranchisement in 2010 of convicted prisoners serving sentences of less than three years. The legislation was said to infringe both the entrenchment of provision of the Electoral Act 1993 (considered in Ngaronoa) and the New Zealand Bill of Rights Act 1990 (considered in Taylor). Both statutes were silent on what remedies, if any, courts might grant if they were infringed.
The comment suggests that although the legislative silence on remedies was deliberate, the embodiment in positive law of what purport to be limits on legislative power seems ineluctably to lead to demands for judicial policing of these limits. However, even in the absence of an express prohibition in a constitutional or statutory text, a court may conclude that granting a particular remedy would be inconsistent with implicit constitutional limits on its powers and role.
While it did not reach the issue of such limits in Ngaronoa, in Taylor the Supreme Court held that, despite the Bill of Rights Act's silence, it was not precluded from formally declaring the disenfranchisement legislation inconsistent with the right to vote. For the majority, the declaration is an effective remedy for the violation of the Bill of Rights Act, and ― in contrast to the position in Australia―granting such a remedy is not inconsistent with the judicial role. Legislative silence can and is likely to be understood as allowing, and indeed requiring, the judiciary to speak out.
Keywords: New Zealand, election law, declarations of inconsistency, NZBORA, entrenchment, remedies
Suggested Citation: Suggested Citation