The Supreme Court of New Zealand has taken the rare step of asking the Attorney-General to amend her s 7 report into the Electoral Matters Legislation Amendment Bill.
Under s 7 of the New Zealand Bill of Rights Act 1990, the Attorney-General has the responsibility to “bring to the attention of the House of Representatives any provision in the Bill that appears to be inconsistent with any of the rights and freedoms contained in this Bill of Rights”. The Attorney-General of the day performs this function independently of political affiliation. In the case of the most recent report, Attorney-General Judith Collins KC identified that aspects of the proposed electoral amendments limited the rights of New Zealanders under s 12 (the right to vote), s 14 (the right to freedom of expression), and s 25(g) (the right to benefit of the lesser penalty). The limitations on those rights could not be demonstrably justified in a free and democratic society, and therefore the Bill appeared inconsistent with rights and freedoms guaranteed to all New Zealanders. The impugned provisions included a large-scale ban on prisoners’ ability to vote and imposing a new registration deadline requiring voters to register no later than 13 days before polling day.
In a letter from the Office of the Chief Justice to the Attorney-General, the Chief Justice of New Zealand Dame Helen Winkelmann asked the Attorney-General to “reflect whether passages of your report risk amounting to spoilers of how the Supreme Court will rule on this in three years time” and to “consider whether the report might be reissued with spoiler tags”.
While noting that the legislation had not yet been passed, nor first-instance proceedings for a declaration of inconsistency issued, the letter made the point that these matters were highly likely to end up before the Court in due course. It continued that “[a]ny acknowledgment by the senior law officer of the Crown at this early stage that the laws infringe rights and cannot be demonstrably justified are highly likely to be cited in any Supreme Court judgment. For that reason the report might be said to unfairly give away the result to anyone wishing to keep as a surprise what we are going to say in, say, Q4 2027 or Q1 2028”.
In comment to the media, the Attorney-General said she would not be reissuing the report with spoiler tags and that “I do not accept the Supreme Court can be concerned about spoilers when the courts of New Zealand have already held that blanket prisoner voting bans are inconsistent with the Bill of Rights Act. The fact that this government’s intended law breaches rights is a matter of long-standing public record”.
A spokesperson for Crown Law said that Crown lawyers were presently booking leave for Q4 2027/Q1 2028.
Strictly obiter 