The Electoral Act 1956 imposed a complete ban on voting on those detained [9] in a penal institution as a result of a conviction.12 The position changed for a brief period with the Electoral Amendment Act [10] 1975.13 Section 18(2) of that Act removed the disenfranchisement of prisoners completely. That position remained only until 1977 when the prohibition on serving prisoners voting was re-introduced.14 [11] The situation altered again with the enactment of the 1993 Act. As originally enacted, s 80(1)(d) disqualified serving prisoners detained under a sentence of life imprisonment, preventive detention, or a term of imprisonment of three years or more.15 The 2010 Amendment extended the prohibition to all prisoners. Under the current regime, only remand prisoners retain the right to vote. The Attorney-General, in his report to the House of Representatives under s 7 of the Bill of Rights, said that “the blanket disenfranchisement of prisoners appears to be inconsistent with s 12 of the Bill of Rights Act and … it cannot be justified under s 5 of that Act”.16 [12] Against this background the respondents, all serving prisoners, brought an action in the High Court seeking a declaration of inconsistency. The approach in the Courts below [13] In the High Court, after a review of the authorities, Heath J said the “general principle” was that “where there has been a breach of the Bill of Rights there is a need for a Court to fashion public law remedies to respond to the wrong inherent in any breach of a fundamental right”.17 There was no reason for a different position in 12 13 14 15 16 17 Section 42(1)(b). Remand prisoners retained the right to vote. The Electoral Amendment Act 1969 lowered the voting age to 20: s 2. The age was lowered again, to 18: Electoral Amendment Act 1974, s 2. Electoral Amendment Act 1977, s 5. The Royal Commission on the Electoral System Report of the Royal Commission on the Electoral System: Towards a Better Democracy (Government Printer, Wellington, December 1986) at [9.21] and recommendation 42, recommended the prisoner voting prohibition be limited to prisoners serving sentences of three years or more; and see Letter from J J McGrath (Solicitor-General) to W A Moore (Secretary for Justice) entitled “Rights of Prisoners to Vote: Bill of Rights” (17 November 1992) which also favoured a three-year threshold. Christopher Finlayson Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Electoral (Disqualification of Convicted Prisoners) Amendment Bill (17 March 2010) at [16]. Taylor (HC), above n 3, at [61].