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Professor applauds prisoner voting ruling

NZ Newswire logoNZ Newswire 29/05/2017

The Court of Appeal's unanimous decision to rule that a blanket ban on prisoners' voting is inconsistent with the Bill of Rights has been met with praise from a leading legal professor.

In a decision released on Friday, the appeal court ruled 5-0 against the attorney-general and in favour of long-serving prisoner Arthur Taylor and four others, Hinemanu Ngaronoa, Sandra Wilde, Kirsty Fensom and Claire Thrupp.

The five had won a case in the High Court in 2015, where Justice Paul Heath ruled a 2010 law change put unjustified limits on prisoners' rights with a blanket ban on voting.

Before the law was enacted, only prisoners serving sentences of more than three years were prohibited from voting.

University of Otago Public Law Professor Andrew Geddis says in a blog post that the decision was an "exciting" moment in New Zealand law history, because the court was ruling against a law passed in parliament.

Prof Geddis noted that the Court of Appeal involved five justices, not the normal three.

"It's a measure of the strength of the court's response that it ruled 5-0 against the Crown on (virtually) all matters, as well as rejecting the Speaker of the House's concerns that the ruling in the High Court improperly intruded into parliamentary terrain," he said.

He said the Court of Appeal justices' noting that the decision to blanket ban voting "cannot be demonstrably justified in a free and democratic society" was significant.

While the Crown and Speaker of the House complained that the High Court had done something it did not possess the power to do, the Appeal Court justices supported the lower court to the hilt, Prof Geddis said.

It was important that the Appeal Court didn't become somewhere every piece of Parliamentary legislation can be challenged, he said, but the inconsistency in this case with the Bill of Rights came into play.

Prof Geddis said New Zealand's recent reporting to the UN Human Rights Committee amounted to "the spectacle of the NZ Government going overseas and proudly waving the existence of our commitment to meeting our international human rights obligations, whilst then resolutely fighting in the domestic courts against the remedy's recognition".

In 2010, the attorney-general actually warned parliament the law change contravened the Bill of Rights Act before it was passed.

In his 2015 decision, Justice Heath said there were inconsistencies in the way the law was applied to criminals, for example, keeping low-level offenders from voting if their sentence coincided with the general election.

"Someone who goes to prison because he or she has no suitable home detention address loses the right to vote, whereas someone sentenced to home detention does not," a statement from the court said.

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