Prisoners should be allowed to vote: High Court

The case was taken in 2013 by Arthur Taylor, a self-described 'prison lawyer' and criminal. Photo / Paul Estcourt

The Government has indicated it will not change its mind on a broad-sweeping ban on prisoners' voting despite a High Court ruling it was an unjustified limitation on the right to vote.

The High Court issued a "declaration of inconsistency" today after considering a complaint from five prisoners who argued the extension of the ban on prisoners voting to cover all prisoners sentenced to imprisonment infringed the right to vote in the Bill of Rights Act.

A spokesman for Justice Minister Amy Adams said the government was still considering the judgement the court made, but said Parliament had considered the Bill of Rights implications when it passed the law in 2010.

At that point, the Attorney General had given an opinion that it appeared to breach the Bill of Rights Act which Parliament was aware of when it passed the legislation.

"At this stage we're still considering the judgement but it's worth noting that, as the judge has stated, the finding that a piece of legislation breached the Bill of Rights Act does not invalidate the legislation."

Labour's justice spokesperson Jacinda Ardern said the Government should repeal the ban. The ruling was unprecedented and a "wake-up call" for the government.

"This was an arbitrary law and one that is full of contradictions and inconsistencies." She said the Government had ignored advice from the Attorney-General and rulings by the UN and European Human Rights Committees in voting for the bill.

"Parliament has a responsibility to respect fundamental rights for all. The Government now has a responsibility to assure all New Zealanders it understands that,"

The declaration alone does not mean Parliament must repeal the ban -- the court noted that even where it finds Parliament has placed unjustified limits on rights. it still has to apply that law.

In his decision, Justice Paul Heath said the purpose of the declaration was to "draw to the attention of the New Zealand public that Parliament has enacted legislation consistent inconsistent with a fundamental right".

The case was taken in 2013 by Arthur Taylor, a self-described 'prison lawyer' and criminal, along with four women prisoners from Christchurch Women's Prison.

Taylor also successfully sought rulings in 2012 that a smoking ban on prisons was unlawful.

Until 2010, only prisoners serving terms of more than three years were prohibited from voting. That law changed in 2010 to cover all prisoners after a member's bill by National's Paul Quinn, who is no longer in Parliament.

Justice Heath said his decision related only to the blanket ban and not the earlier ban on prisoners serving more than three years. "There are powerful arguments that the limitations on the prohibition contained in the original [Act] are justifiable in a free and democratic society."

However, he ruled the wider ban was unjustified. While rights could be limited if the limits were reasonable and justified, that was not the case in this instance.

The court said the the blanket ban produced arbitrary results, so that a low-level offender serving a short term which happened to overlap with an election could not vote but a more serious offender who had served more than two years in between elections could.

It also meant someone who was in prison simply because a suitable home detention address was not available could not vote, while others on home detention could.

It is the first time the court has issued a declaration of inconsistency in relation to the Bill of Rights Act.

The Act itself does not contain penalties for breaches but the courts have in the past offered compensation in cases where individual rights were breached, and Justice Heath ruled it could also offer declarations under the Act.