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2:10 pm, May 1st, 2025 - 9 comments
Categories: human rights, national, paul goldsmith, same old national -
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This feels like the movie Groundhog Day.
Yet again National has announced that it will take away voting rights for prisoners.
It has some history in this area and looking at my previous posts I have been writing about this subject for a while. This is an amalgamation of different things I have written.
Up to 2010 the law stated that if a prisoner was serving a sentence of three years or more then they were ineligible to vote. This provision continues. National in 2010 through a Private Member’s bill changed this so that if a person was in jail, for whatever period, they could not vote.
The bill was hotly contested. National was told by the Attorney General that the blanket disenfranchisement could not be justified.
Many anomalies were pointed out, for instance someone in jail for not paying fines was caught, and someone serving a one week sentence during an election date was caught but someone serving a two and a half year term for a serious offence was not. Someone on home detention could vote but a co-offender sentenced to jail because they could not provide a suitable home detention residence could not.
The advice from the Attorney General was that “the blanket disenfranchisement of prisoners appears to be inconsistent with s 12 of the Bill of Rights Act and that it cannot be justified under s 5 of that Act.”
Act’s Hillary Calvert (remember her?) gave one of the more extraordinary Parliamentary speeches and said this:
I cannot pretend this bill is my favourite thing. Trevor Mallard leaving the House earlier, and not being able to vote while he was away, could count as a favourite thing. Perhaps popping a ping-pong ball in the mouth of the honourable member over there who all day keeps turning his head from side to side with his mouth open could count as my favourite thing. This bill is not my favourite thing. However, Act is supporting National on this bill.
Unlike anything else about her career I applaud her honesty at least on this occasion.
Legendary bush lawyer Arthur Taylor and others challenged the law on the basis that it breached their rights.
In the High Court Justice Heath agreed with the Attorney General and ruled that the law change was inconsistent with the New Zealand Bill of Rights Act and could not be justified in a free and democratic society. On the more esoteric point about what can the Court say to Parliament he was prepared to make a declaration of illegality. As to whether the original limitation (three year sentence) contained in the law before it was changed was also justified he said “[t]here are powerful arguments that the limitations on the prohibition contained in the original s 80(1)(d) are justifiable in a free and democratic society.”
The Court of Appeal agreed with Justice Heath as did the Supreme Court. Eleven judges looked at the issue and all agreed that the law change breached fundamental rights and the breach of prisoners rights was that egregious that a declaration of breach should be made.
Labour then did the right thing and repealed the law.
The issue was considered by He Arotake Pōtitanga Motuhake, the Independent Electoral Review which recently reported to the Government.
In 2010, Parliament voted to remove the right to vote for all sentenced prisoners. In 2015, the High Court declared that a blanket ban on prisoner voting was an unjustifiable limitation on the rights protected by the New Zealand Bill of Rights Act 1990. The High Court did not rule on whether the current disqualification, based on a sentence of three years or more, is inconsistent with the New Zealand Bill of Rights Act 1990.
The Waitangi Tribunal also considered the complete restriction of prisoner voting rights in 2020. In its report on Wai 2870, He Aha I Pērā Ai, it found that the ban seriously breached Tiriti / Treaty principles of active protection and equity. The Waitangi Tribunal reached this finding because the ban disproportionately affected Māori, who are overrepresented in the prison system as a result of systemic bias and social and economic disadvantage. It also found that disenfranchisement has a wider impact than its effect on individual prisoners, impacting on their whānau and communities.
The Waitangi Tribunal recommended all restrictions on prisoner voting should be removed as “all Māori have a Treaty right to exercise their individual and collective tino rangatiratanga by being able to exercise their vote in the appointment of their political representatives”.
Of course none of this carried any weight with Goldsmith or the Government and they decided to box ahead with the ban.
Interestingly the policy did not appear in National’s Justice policy from last election. Nor does it appear in either coalition agreement.
And the announcement suggests a head on clash with the courts over the issue will happen in the near future.
Goldsmith’s Beehive announcement contains the following:
“Restoring prisoner voting was typical of the previous government’s soft-on-crime approach; we don’t agree with it.
“Citizenship brings rights and responsibilities. People who breach those responsibilities to the extent that they are sentenced to jail temporarily lose some of their rights, including the right to vote.
“The proposed change will establish a consistent approach to prisoner voting, regardless of the length of sentence.
Having a blanket rule that if you are in prison you cannot vote reeks of arbitrariness and I am pretty sure will be struck down by the Courts. But having defendable principle based policy that the Courts will accept does not appear to be important.
There is a distinct Trumpian feel about this announcement. It seems the Government does not care about the legality of what they are doing. All they appear to be looking for is the chance to offer red meat to the base and look as if they are being tough on crime.
"Having a blanket rule that if you are in prison you cannot vote reeks of arbitrariness and I am pretty sure will be struck down by the Courts."
If the ban is placed in primary legislation can the court still strike it down? I'm thinking about how our system provides for declarations of inconsistency with both the HRA and the NZBORA, and how for example the A-G must report to Parliament any potential breaches, but that this does not extend to striking primary legislation down? I'm no lawyer but I remember following the CPAG case which was all about getting a declaration, which they didn't get, but it was all done in the knowledge the court could not strike the legislation down. I’d like to be wrong about this.
I believe this came up in Ngaronoa v AG in the Supreme Court. Under s 268 of the Electoral Act, there are a number of provisions that can only be changed with a 75% supermajority, or a referendum, one of these being s 74 (Qualification of Electors), and referred to under s 268(1)(e) of the Act.
S 268(e) specifies a supermajority or referendum is required for any amendment so far as those provisions prescribe 18 years as the minimum age for persons qualified to be registered as electors or to vote. The Supreme Court took a narrow reading of this section, meaning only amendments to voting age are entrenched under s 268(2), but groups of people permitted to vote can be amended with a mere simple majority – be it prisoners, or women!
As the nature of bipartisan politics and collective responsibility means any incumbant government has a simple majority on legislative matters, National can quite easily amend with a simple majority, as the courts will only interfere with a DoI where Parliament has breached their obligation to reach a supermajority/referendum under s 268. Prisoner voting is not one of these entrenched provisions.
A government bereft of any new ideas or decency. Another retrogressive step, implemented because they can.
They are a sorry bunch.
Did Labour repeal it so those on under-3-years could vote? or for ALL prisoners to vote?
Before National changed it, the law was that only those serving under 3 years were enfranchised. A repeal reverts to the previous law, the Labour coalition did not replace or rewrite it.
Funny seeing right-wingers on Twitter/X posting how this is a good thing because prisoners probably vote left anyway, as though a government acting to disenfranchise voters it thinks likely to vote for its opponents ain't no thing. The US Republican Party has a lot to answer for in that respect.
I think people are on a hiding to nothing opposing this on the basis it deprives prisoners of human rights. A prison sentence inherently deprives the prisoner of various important human rights, so the government can easily argue this is one of the rights criminal offenders should be deprived of. And if a court finds it breaches the Bill of Rights Act, no-one can force a government to care about that.
This has to be fought as a point of principle, the principle being universal adult suffrage. If governments start taking on themselves the right to decide who "deserves" suffrage and who doesn't, it can't end well. It would be nice if right-wingers could see beyond "But I don't like crims" and have a think about what categories of people a radical left government might think were failing to live up to their social responsibilities.
This is a good thing (it doesn't go far enough but baby steps) because when you choose to break the law (and it is a choice) to such an extent that you are incarcerated (in NZ you can rape and still be sentenced to home d) there needs to be a recognition that you have chosen to live outside the law and that means you don't get to participate in the voting to decide the next government and whatever laws they pass
Instead of thinking of it as punishment think of it as a reward for the prisoners, stay out of prison and you get to vote
Interesting to note that the majority of rapists, murderers, kiddie fiddlers, drug dealers, gang members (repeating myself) etc vote mostly Labour
"there needs to be a recognition that you have chosen to live outside the law and that means you don't get to participate in the voting to decide the next government and whatever laws they pass"
Let's play spot the leap of logic.
national just can't leave this alone. would have thought there are many more important things than this