Prisoner voting disqualification and the Bill of Rights Act

In 2010, National rammed the Electoral (Disqualification of Sentenced Prisoners) Amendment Bill through Parliament. Paul Quinn’s Member’s Bill existed because Paul Quinn thought anyone who’d been imprisoned was a serious offender, and serious offenders had ‘forfeited’ their right to vote.

National and ACT consistently voted for it because they all thought the same. Since then, if you’re in prison on an election day, you can’t vote.

In the High Court last Friday, Justice Heath declared that this was inconsistent with the New Zealand Bill of Rights Act 1990.

This is the first time any New Zealand Court has declared a piece of legislation inconsistent with the Bill of Rights Act – a big call, with strong (and positive) implications for constitutional law in New Zealand. The High Court has taken the position that it has a responsibility to all New Zealanders to identify when the Government unjustifiably breaches their rights, to draw attention to that breach, and to prompt Parliament to reconsider its action.

But it’s also a well-overdue confirmation that the Bill, now the Act, was a deeply flawed, aggressively punitive piece of law, not by mistake but by design. At the end of his judgment, Justice Heath ruled that –

The inconsistency [with the Bill of Rights Act] arises in the context of the most fundamental aspect of a democracy; namely, the right of all citizens to elect those who will govern on their behalf. Looking at the point solely as one of discretion, if a declaration were not made in this case, it is difficult to conceive of one in which it would.

In reaching this conclusion, Justice Heath drew heavily on the Attorney-General’s Report on the Bill. Justice Heath quoted whole chunks of that Report, which assessed the Bill’s consistency with the Bill of Rights Act and was released prior to the Bill’s first reading in Parliament. While acknowledging the right to vote wasn’t absolute, that Report was scathing, making the following barbed criticisms –

  • The Bill contradicted its own objective by catching people who were in prison but couldn’t plausibly be considered serious offenders, such as fine defaulters;
  • It introduced “irrational inconsistencies in the law” where mentally impaired prisoners detained in hospitals for less than three years could vote, but prisoners serving less than three years in prisons could not;
  • Its application to serious and non-serious offenders depended “entirely on the date of sentencing, which bears no relationship either to the objective of the Bill or to the conduct of the prisoners whose voting rights are taken away”; and
  • It was inconsistent with our obligations under the International Covenant on Civil and Political Rights.

The Attorney-General called it “disproportionate” and “irrational.” The Bill’s core purpose was held up as clearly in breach of the fundamental right to vote. The Bill itself made no argument for why this was justified; gave no indication of what it intended to achieve; and pointed to no evidence to prove that the change was needed.

Given the opportunity to answer to this in the House, Paul Quinn and the National Party indicated that they supported it because they preferred the historical notion of what imprisonment entailed – “temporary exclusion of a person from the community and from the rights associated with membership within that community” – to more modern, evidence-based corrections policy. Their reason for that preference was summarised pretty succinctly by Quinn himself during the Bill’s Second Reading –

What do members think Mrs Vercoe thought when her son Hāwea was killed and the guy who killed him received a sentence of 2 years, 9 months? Do members think that is fair? I do not. He was sent to prison for committing a serious crime, and that is what this argument is about.

National and ACT knew what they were voting for. They knew that they were putting their weight behind a Bill designed purely to punish prisoners, barring them from civil society and telling them their communities had no need for their voices.

As I told the House at the time, the Bill was a craven attempt to curry support with the short-sighted populists who believe that locking people up for longer and beating down on them is more important than trying to reintegrate them into society and preventing re-offending. That much was clear from how they responded to criticism –

David Garrett:

It will offend them. It will offend the communists, all right.

Paul Quinn:

They’re chardonnay socialists…

Let me take a step back and remind members of the House that the cornerstone of our justice system is the fact that we are judged by our peers—that is the cornerstone of our justice system. Let me tell members that I do not see boffins in ivory towers as my peers. I do not see Mandarin socialists as my peers.

National needs to take the High Court’s hint, and reconsider the ban. It needs to stop treating prisoners as political footballs and recognise that this isn’t a question of ‘communists’ and ‘boffins in ivory towers’; this is about a fundamental right arbitrarily taken from people for no other reason than to send the message that they’re second-class citizens. And that’s no ground for breaching someone’s right to vote.

3 Comments Posted

  1. It seems to me that we might fairly draw a broader inference from the Court’s ruling. It is an inference that takes us to another, surely even more important — and festering — Constitutional issue. For as it seems the Court has ruled, in effect, that removal of anyone’s voting rights merely to effect the will of parliament is inconsistent with the Bill of Rights, removal from the people of Canterbury of their voting rights in respect of the Canterbury Regional Council is an undemocratic scandal and is similarly unacceptable. I suggest that this can be inferred from the Court’s judgement.

    We need much more substantial Constitutional law in this country. What we have at present is really just a piecemeal ‘bag’ of bits of legislation which, clearly, the present government in particular considers eminently irrelevant to its fundamental political, environmental, social, and — especially — economic agendas.

  2. I believe that Prisoners should not have the right to vote… They should first behave , get out of prison and then have their rights to vote reinstated.

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