Last week, the Court of Appeal upheld a High Court decision that the ban on prisoner voting does not align with the principles of the Bill of Rights. Another decision is pending – the decision of whether or not the law behind the ban was passed lawfully.
If the Court confirms this, it could mean that many of those in prison will be immediately eligible to vote. What is yet to be seen is whether or not they will be able to vote in this year’s General Election.
The New Zealand Bill of Rights protects the rights of its citizens to vote (over the age of 18) regardless of age, sex, class, or beliefs to be able to participate in our democratic society. However, in 2010, New Zealand saw the introduction of Electoral (disqualification of sentenced prisoners) Amendment Act which took away the rights of prisoners to vote in any elections or referendums.
Arguments in favour of the ban on prisoner voting include the measure being a deterrent of committing more crime and that a benefit of being a law-abiding citizen gives you the right to vote. Though, as the author points out, the ban on prisoner voting is founded on the belief that voting is a privilege, rather than a right.
While the Bill of Rights also allows reasonable limitations on rights – this needs to be justifiable. We believe in this case, it is not. This Government has an opportunity to make it right and lift the ban to allow those eligible to vote in this years General Election by repealing the Act.
A JustSpeak volunteer sums up some of the history in this case, the motivations for the law, and how the Act is a breach of the Bill of Rights and further marginalises those who are already marginalised.
Voting is a right, not a privilege
On Friday, 26 May 2017, the Court of Appeal released the first decision in the two-part appeal of the prisoner voting rights case. This decision is of fundamental importance because the Court of Appeal confirmed New Zealand courts have the power to formally declare that a law passed by Parliament is inconsistent with the fundamental rights and freedoms guaranteed by the New Zealand Bill of Rights Act and the Court of Appeal confirmed that the High Court was right to make such a declaration of inconsistency in relation to the blanket prisoner voting ban passed by Parliament in 2010.
In 2015 the High Court heard an application by a number of prisoners for a formal declaration from the Court that the law banning all prisoners from voting is inconsistent with the Bill of Rights. The High Court agreed with the prisoners and made the declaration that the ban was unjustifiably, inconsistent with s 12 of the Bill of Rights, which protects the right to vote. In both the High Court and the Court of Appeal the Crown disputed the Court had the power to make such a declaration.
But they were not challenging the fact that the ban is inconsistent with the right to vote. The Crown accepts that the ban is inconsistent with this fundamental human right. Even when the Bill proposing the ban was being considered by Parliament in 2010, before it became law, the Attorney-General reported to Parliament “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”. Section 5 of the Bill of Rights Act allows reasonable limitations on rights that can be justified in a free and democratic society.
Section 12 of the Bill of Rights reflects and affirms article 25 of the International Convention on Civil and Political Rights. The commentary on this article provides that the right to vote is not an absolute right and prisoners’ voting rights may be restricted on objective and reasonable grounds that are proportionate to the offence and the sentence. But after Parliament amended the law in 2010 the Electoral Act 1993 disqualified all sentenced prisoners from voting, no matter how long their prison sentence or what they are in prison for. Because of this the ban acts in an irrational way that is not proportionate to the offence or sentence. A prisoner serving a very short sentence who happens to be in prison on an election day will be disqualified from voting, but a prisoner who is in for longer but not on an election day will not be prevented from voting.
Also, similar crimes can result in different sentences (such as home detention or imprisonment) for reasons unconnected to the seriousness of the offence, but the offender on home detention will be able to vote, while the prisoner will not. Further, not everyone sentenced to prison has committed serious or numerous crimes.
Shortly before the Bill came into force, 24 per cent of prisoners serving less than three years were imprisoned for offences of a non-violent and non-sexual nature.
What's more disenfranchisement is what’s referred to as a “collateral consequence” of receiving a sentence of imprisonment, meaning a prisoner is automatically disenfranchised upon receiving a sentence of imprisonment, without the judge turning their mind to whether disenfranchisement meets the purposes and principles of sentencing, let alone the fact that they are depriving the prisoner of this fundamental human right.
One of the arguments in favour of disenfranchisement is that by committing a crime the prisoner has broken the “social contract” to obey the law, and should therefore be deprived of one of the benefits of the contract. But the ban impacts disproportionately on those in society who are already marginalised. In fact, many prisoners are not enrolled when they are sentenced anyway. The corrections system is meant to be guided by principles of rehabilitation and reintegration, but the disenfranchisement of prisoners suggest they are not a part of society. If the justice and corrections systems encouraged prisoners to enrol to vote, that could engender a sense that they are a valued part of our society and promote a greater sense of social responsibility.
Another argument in favour of prisoner voting bans is that it acts as a deterrent to committing further crime. Putting aside the lack of evidence to support this contention, any deterrent effect is likely to be outweighed by the influence of other drivers of crime, such as substance addiction, mental health issues, and socio-economic disadvantage. Addressing these matters would be much more effective deterrence than removing the right to vote.
The disqualification of prisoners from voting is founded in a belief that voting is a privilege, rather than a right, and in regulating the right to vote in this way it undermines the fundamental democratic principle of universal suffrage – the principle that everyone (over the age of 18) regardless of race, sex, class, or beliefs has the right to vote. It is the universality of the suffrage the underpins representative democracies (like New Zealand) and gives legitimacy to the laws made by our representatives. Given the mass incarceration of Māori, prisoner disenfranchisement in New Zealand is racialised disenfranchisement. Although the expansion of the franchise (e.g. to women) should rightly be considered one of the major triumphs of democracy over the last century, the persistence of prisoner disenfranchisement, and the disproportionate disenfranchisement of Māori undermines the universality of the franchise and the legitimacy of representative democracy in New Zealand.
Courts in places that New Zealand tends to compare itself to (such as Canada and Europe) have struck down blanket prisoner voting bans as being a breach of the fundamental human right to vote. Even though the Court has now declared the blanket prisoner voting ban to be inconsistent with out Bill of Rights, the New Zealand Courts do not have the power to strike down legislation – that means the ban is still the law in New Zealand. So it is up to our democratically elected representatives to address this human rights breach. If human rights are not enough of an imperative there are other reasons why the Government could enfranchise prisoners: the legislation was introduced as a Members Bill (rather than a National Party Bill), and the responsible member is no longer a National Party MP, and repealing the ban would have no significant resource implications. In these circumstances it is politically tenable for the current Government to distance itself from the ban, and demonstrate its commitment to the human rights of all New Zealanders by repealing the ban.
The second of the Court of Appeal’s decision, which is yet to be released, is about whether the 2010 amendment to the law extending the ban on prisoners voting to all prisoners was actually not lawfully made. If the Court finds that the decision was not lawfully made then the 2010 law will immediately be of no effect, and prisoners serving sentences of less than three years will be able to enrol to vote.
But there is no guarantee of that outcome, and with less than four months till the next General Election we should all be calling for Parliament to urgently (re)enfranchise prisoners, if we don't it undermines the legitimacy of the vote itself.