24 July 2015
This summary is provided to assist in the understanding of the Court’s judgment. It does not comprise part of the
reasons for that judgment. The full judgment with reasons is the only authoritative document. The full text of the
judgment and reasons can be found at www.courtsofnz.govt.nz.
TAYLOR V ATTORNEY-GENERAL  NZHC 1706
Overview of the case
Five serving prisoners sought a declaration from the High Court that a blanket ban on prisoner voting that has been in
force since the enactment of the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010 breached the
right to vote set out in s 12(a) of the New Zealand Bill of Rights Act 1990. Before the 2010 Amendment Act, only
prisoners serving sentences of three years or more were prohibited from voting. Since 16 December 2010, any prisoner who
is sentenced to imprisonment loses the right to vote. The High Court held in favour of the prisoners, and made a
“declaration of inconsistency” – that is, a formal order that the legislation is both inconsistent with the Bill of
Rights and unable to be justified under that Act.
The law and the issues
The Bill of Rights sets out individual rights guaranteed by the State. Included among them is the right to vote, which
is of fundamental importance in a democracy. Section 5 of the Bill of Rights recognises that rights may be qualified,
but only if the limits are reasonable and can be “demonstrably justified in a free and democratic society”. However,
even if a Court finds that Parliament has placed unjustified limits on rights, it still has to apply the law.
The Bill of Rights does not provide any express remedy when unjustified limits are placed on rights. Instead, the New
Zealand courts have developed remedies – for example, financial compensation – to respond to cases in which the State
breaches individual rights. This is done to recognise the purpose served by the Bill of Rights, namely affirmation of
The issues for the High Court in this case were whether the blanket ban on prisoner voting was an unjustified limit on
rights and, if so, whether a declaration of inconsistency was an available remedy.
The High Court found that the law was an unjustified limit on rights. Indeed, the Attorney-General had already concluded
that in his report to Parliament before the law was passed. One reason is that the law has arbitrary consequences. For
example, a low-level offender given a short prison sentence coinciding with a general election loses the right to vote,
whereas a serious offender imprisoned for two and a half years between elections can still vote. 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.
The High Court also found that a declaration of inconsistency was an available remedy for breaches of the Bill of
Rights. This is the first occasion on which such a declaration has been made. The Court also held that this was an
appropriate case in which to make a declaration, given the special importance of the right to vote and the unjustified
limits placed on that right by the total ban on prisoners voting.