The Right of Prisoners to Vote at General Elections

October 17, 2018

 

Background to the Case

 

  1. On the verge of the 125th anniversary of the world’s first democracy, our Parliament passed an Amendment to the Electoral Act in 2010 which disqualified all prisoners from voting.
     

  2. The 2010 Amendment was clearly inconsistent with the right to vote under s 12 of the Bill of Rights. Even the Crown, through the Attorney-General, conceded it. That was not going to be the problem in litigating the breach of the Bill of Rights by the government. The issue was whether an unentrenched Bill of Rights could provide a remedy even though the Amendment could not be justified in a free and democratic society.
     

  3. In these circumstances, plaintiffs cannot simply ask a court of law to “strike down” the legislation because the judiciary does not have this kind of power, unlike their counterparts in the United States and Canada where rights are entrenched and therefore supreme law.

    The Declaration of Inconsistency (DOI)  
     

  4. Most in legal circles legitimately questioned whether superior courts even have jurisdiction to make a DOI. However, my legal research led me to seek the first DOI in a common law country in which the judiciary has no express statutory power to issue one.
     

  5. But firstly there was a practical problem to deal with before the case could proceed in court. I had to find a plaintiff prepared to stand up against the establishment and endure the uncertainty of litigation and its financial consequences. In a country where access to justice is limited, I knew there would be no legal aid for a civil proceeding on a novel point of law which affected sentenced prisoners. 
     

  6. I thought of a prisoner who was solid and would stand up against the authorities. I had observed jailhouse lawyer, Arthur Taylor, arguing one of his cases in person in the High Court. I was impressed with his knowledge of the legal issues, and his advocacy skills, as well as his professional interaction with the bench.
     

  7. I wrote to Arthur Taylor and arranged a one-on-one interview in prison, which was approved by the Prison Manager. For reasons outlined in Arthur Taylor’s affidavits that followed, he was happy to put his name to the case against the defendant, the Attorney-General.
     

  8. In all human rights cases I deal with that have public and general importance, it is not worth trifling with monetary matters so I was happy to take the case on a pro bono basis.  

      Legal History of Prisoner Voting
     

  9. In a nutshell, this country’s legal history represents a consistent pattern in which centre-right parties favour a blanket ban on prisoner voting regardless of the length of their sentence or the seriousness of their criminal offending. The centre-left parties historically favour voting by prisoners who are sentenced to a short term of imprisonment.(1) Refer Taylor, Ngaronoa &Ors v Attorney-General  [2016] NZHC 355; [2016] 3 NZLR 111 at [119]
     

  10. The 2010 Amendment was no exception. All parties on the right voted in favour of the blanket ban. It was a Private Members Bill introduced by National List MP, Paul Quinn. The MPs who voted in favour of it belonged to the National Party and ACT New Zealand. The members who voted against the Bill belonged to centre-left parties such as Labour, and other parties regarded as more left leaning such as the Greens. 
     

  11. The final vote in the House of the Representatives was 63 to 58, and the only difference was the five ACT New Zealand MPs It is commonly accepted that the ACT party is more right wing than National. .

    Legal Scrutiny by the Attorney-General
     

  12. The 2010 Amendment was scrutinised pursuant to s 7 of the Bill of Rights by the Attorney-General, the Hon. Christopher Finlayson..[2] He concluded that it appeared to be inconsistent with s 12 of the Bill of the Rights (the right to vote), and could not be justified. The Attorney-General stated that:[3]

     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 the Act.
     

  13. In the third reading of the Bill in Parliament, reference was made to the purpose of the legislation to justify the disenfranchisement. However, as it turned out later in the proceedings, the Crown conceded the purpose of the Act was inconsistent with the Bill of Rights because it resulted in arbitrary outcomes. In contrast, the Hon. Wayne Mapp stated in the third reading that:[4]

    One of those purposes is punishment, and another is deterrence. If serial offenders—offenders who regularly go to jail—understand that one of the rights they lose is the right to vote, then that will add a lesson. It will be a lesson not just for those individuals but also for other people who offend that there are consequences for offending.
     

  14. The architect of the 2010 Amendment expressed his views about New Zealand’s obligations to the United Nations and the protections afforded by UN human rights instruments. The Hon. Paul Quinn stated:[5]

    The second area is criticism in terms of United Nations edicts and issues about international law, and of course there were also various submissions from the boffins who hide away in ivory towers, paid for by the Government, and from the Mandarin chardonnay socialists who masquerade as independent advisers. I do not take much notice of UN edicts, and I am more concerned about New Zealand law than I am about international law. (Emphasis added).
     

  15. At the time the legislation was passed, all members of Parliament knew, or should have known, that the majority of prisoners are Maori.[6] In speeches in the House, members stated that the law discriminates against Maori,[7] because they said a disproportionate number of prisoners are Maori.[8] It is clear the House knew who the law was targeting.[9]

    Joining Four Women to the Proceedings
     

  16. It was necessary for the courts and the public to hear the voices of women (in particular, Maori women) in terms of what it means to them to be denied the right to vote.
     

  17. Once again, the problem was finding someone in prison who would not be intimidated by the establishment. Women in prison are more vulnerable than men and there is a perception they are less inclined to challenge the authorities adversarially.
     

  18. Arthur Taylor and I discussed this matter and he provided the name of Hinemanu Ngaronoa. He said she was a strong Maori woman housed in a segregated unit of the Christchurch Women’s Prison, and he had been in correspondence with her over several legal issues facing prisoners including prisoner voting. From what Arthur Taylor told me, I wanted to meet her.
     

  19. I first contacted Hinemanu by telephone and we discussed her potential role in the proceedings and many other aspects of the case. I wondered if there were other women who might be prepared to join her as parties in the proceedings. Within a couple of days, Hinemanu contacted me with a list of three other women who were prepared to speak out in support of the action. They were all short-term prisoners ranging from 3 months to 2 years and 9 months.
     

  20. The range of sentences was very important in terms of the threshold under the previous legislation vis-à-vis the three year term. Under the blanket ban, none of the short-term prisoners can vote if their stay in prison coincides with an election. It is this coincidence that gives a prisoner strict “legal standing” in the case, which became an issue in the High Court and for Arthur Taylor it went all the way to the Superior Court.
     

  21. The process of swearing their affidavits was thwart with difficulty. This included interrupted telephone calls between me and my clients, and refusing a Justice of the Peace access to the prison to swear their affidavits when the interview had already been approved. On the second attempt, the JP (performing a thankless task), managed to accomplish what should have been a simple task if we are serious about equal access to justice. 
     

  22. It was clear from the affidavits filed by all the applicants in the High Court, they sought a remedy for the breach of their right to vote. This is where a formal declaration of inconsistency acts as vindication of a breach of individual rights and freedoms.

    Arguments in the High Court in Favour of a DOI
     

  23. The arguments we made in the High Court in favour of a DOI were inter alia as follows.
     

  24. A DOI is not inconsistent with the primacy of legislation, which is protected by s 4 of the Bill of Rights (the prohibition against courts striking down legislation). However, we submitted the judiciary is entitled to consider the reasonableness and justification of limiting measures imposed by legislation.
     

  25. A strict application of s 4 forecloses any jurisprudential consideration of whether limits on individual rights imposed by the legislature are reasonable and justifiable or not.
     

  26. The benefit of a DOI issued by the superior courts is that the legislature may be persuaded to reconsider or amend the legislation in question. This is consistent with the Long Title of the Bill of Rights, which is to “affirm, protect and promote human rights and fundamental freedoms.”
     

  27. The 2010 Amendment unjustifiably punishes prisoners serving a very short sentence, for example,two weeks imprisonment for failing to pay parking fines, which happens to coincide with the day of a national election. In contrast, a prisoner serving a sentence of 2 years and eleven months for wounding with intent to cause grievous bodily harm, which happens to fall between two elections is not affected by the sanction of disenfranchisement. Therefore, the limiting measure is both over-inclusive and under-inclusive depending on the date of a person’s sentencing and the timing of a general election, which is neither rational nor proportionate to the problem the legislation is trying to remedy. In this respect the measure is entirely arbitrary.
     

  28. A DOI also supplements the Attorney-General’s analytical role of proposed legislation. It’s a statutory requirement of the Attorney General to report to Parliament any inconsistency between a proposed piece of legislation and the Bill of Rights. This was not a cavalier submission since the Court of Appeal indicated a legitimate jurisdiction to make a declaration of inconsistency. (Moonen v Film and Literature Board of Review [2000] 1 NZLR 9 at para [19]).
     

  29. The Human Rights Tribunal has jurisdiction to make declarations of inconsistency under the Human Rights Amendment Act 2001. These cases may proceed to the High Court and the Court of Appeal through the appellate process. The High Court agreed with our argument that it would be surprising if a lower level tribunal could issue a DOI but the superior courts could not. According to the Crown, the distinction is that the legislature expressly allowed the Tribunal but not the superior courts to make a DOI. The prisoners argued that the superior courts have "inherent jurisdiction" to make a DOI and there is a legislative power to issue one, which has its origins in the Judicature Act 1908. 
     

  30. In the United Kingdom, the Human Rights Act 1998 gives Courts the power to declare a statute “incompatible” with the European Convention on Human Rights. If a statute is declared incompatible, it must still be given full force and effect, which would be the same outcome here if a superior court issued one under the Bill of Rights.
     

  31. The Bill of Rights is silent with respect to remedies. The legislature has deliberately left the matter of remedies to the discretion of the judiciary. This has led to the development of remedies by the superior courts, which are consistent with the purpose of the Bill of Rights to promote and affirm individual rights and freedoms. For example, the exclusion of evidence is a remedy to a person in custody denied the right to call a lawyer. (Ministry of Transport v Noort [1992] 3 NZLR 260 (CA)
     

  32. The development of international jurisprudence in the area of prisoner rights represents a major shift away from blanket disenfranchisement. The right to vote is such an important part of a democracy it is regarded as a fundamental right, which is reflected in Article 21 of the Universal Declaration of Human Rights:

    Everyone has the right to take part in the government of his country, directly or through freely chosen representatives…The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal.
     

  33. Article 25 of the International Covenant on Civil and Political Rights ( ICCPR) protects the right of every citizen to vote in public elections:

    Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;(c) To have access, on general terms of equality, to public service in his country.
     

  34. The right to vote without restriction and distinction is set out in Art. 2 of the ICCPR:

    Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
     

  35. In General Comment, the United Nations Human Rights Committee (UNHRC) stated in relation to Article 25 that depriving citizens of the right to vote “should be objective and reasonable.” In terms of denying prisoners the right to vote, the Committee added that the “period of suspension should be proportionate to the offence.” The General Comment No 25 of the Office of the High Commissioner for Human Rights 1996 at para [14] states:

    In their reports, States parties should indicate and explain the legislative provisions which would deprive citizens of their right to vote. The grounds for such deprivation should be objective and reasonable. If conviction for an offence is a basis for suspending the right to vote, the period of such suspension should be proportionate to the offence and the sentence. Persons who are deprived of liberty but who have not been convicted should not be excluded from exercising the right to vote.
     

  36. New Zealand has ratified the ICCPR, and is a party to the UNHRC. These international instruments are incorporated into domestic law through the Long Title of the  New Zealand Bill of Rights Act 1990, which affirms New Zealand’s commitment to the ICCPR.
     

  37. Corrections facilities are required to operate in accordance with the United Nations Standard Minimum Rules (UNSMR) on the Treatment of Prisoners. This includes the need to minimise the differences between prison life and life at liberty when it lessens the responsibility of prisoners and excludes them from legitimately participating in the community.  The UNSMR is incorporated into New Zealand law by way of s 5(1)(b) of the Corrections Act 2004.
     

  38. The courts in several common law countries in comparative jurisdictions have held that total disenfranchisement is unconstitutional and a violation of human rights.
     

  39. In Canada, there is currently no restriction on prisoner voting. In 1992 the Supreme Court struck down federal legislation banning all convicted prisoners serving sentences of imprisonment from voting. (Sauvé v Canada [1993] 2 SCR 438) Among other arguments that favour the plaintiffs' position in this case, the Supreme Court stated in relation to indigenous people at para [60]:

    Aboriginal people in prison have unique perspectives and needs. Yet, s. 51(e) denies them a voice at the ballot box and, by proxy, in Parliament. That these costs are confined to the term of imprisonment does not diminish their reality. The silenced messages cannot be retrieved, and the prospect of someday participating in the political system is cold comfort to those whose rights are denied in the present,
     

  40. In South Africa, its specialist Constitutional  Court held that the "vote of each and every citizen is a badge of dignity and of personhood". Refer: August and Another v. Electoral Commission and Others 1999 (3) SA 1 paras [17] [18].
     

  41. In a decision in 2002, the Supreme Court of Canada held that a ban on voting in relation to prisoners serving sentences of two years or more was not a justified limitation. The Supreme Court stated that the limiting measure did not serve a valid purpose or promote civic responsibility and respect of the law. There was also no evidence that the measure had a deterrent effect. (Sauvé v Canada (No. 2) [2002] 3 SCR 519).
     

  42. In Australia, a person who is serving a sentence of less than three years imprisonment is eligible to vote under federal law. The individual states and territories have various restrictions based on different lengths of imprisonment. 
     

  43. In 2007, the High Court of Australia held that an amendment to the Commonwealth Electoral Act 1918 which barred all prisoners from voting was unconstitutional. In the same judgment, the court upheld another amendment that disenfranchised prisoners sentenced to more than three years imprisonment. This was on the grounds that there was a rational basis for the disenfranchisement.(Roach v Electoral Commissioner [2007] HCA 43).
     

  44. At the time these proceedings commenced, a blanket prohibition on prisoner voting was under review by the British Government with three new proposals made under the Voting Eligibility (Prisoners) Bill 2012. This followed a ruling by the European Court of Human Rights (ECHR) in Greens and M.T. v  United Kingdom (2011) (nos. 60041/08 & 60054/08) that the United Kingdom is required to implement the judgment in Hirst v United Kingdom (No. 2) 2006 42 EHRR 849. The Court held in Hirst (No. 2) that disenfranchisement of prisoners solely on the basis that they are in prison is unenforceable. The Court ruled inter alia that a blanket ban on prisoner voting lacked proportionality between the facts of any individual case and the removal of the right to vote.
     

  45. At present (October 2018), the legal position in the United Kingdom is that prisoners who are sentenced to a term of imprisonment of less than one year are entitled to vote subject to strict conditions such as the eligibility for home detention at the time of the general election. Refer Guardian article entitled "Council of Europe accepts UK compromise on prisoner voting rights 2017". 
     

  46. The right to vote in the European Union is confirmed by Article 3 of Protocol No. 1 of the Convention of Human Rights which states that:

    the High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.
     

  47. In 2011, the issue of prisoner voting in Austria came before the ECHR. The Court held that forfeiting the right of prisoners to vote when they are serving a term of imprisonment of one year or more was in breach of Article 3 of Protocol No. 1. The Court stated that the principle of proportionality required a ‘discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned.’ (Frodl v Austria (2011) 2 EHRR 5).
     

  48. Prisoners in Italy cannot vote if they are serving a term of imprisonment of five years or more. The ECHR found that the disenfranchisement of Italian prisoners sentenced to five years or more served to “pursue the aims of preventing crime and enhancing civic responsibility and respect for the rule of law.” The Court held that the limiting measure served legitimate aims, and the means employed were proportionate because not all prisoners were automatically disenfranchised. (Scoppola v Italy No. 3 (No. 126/05)).
     

  49. France, Germany and the Netherlands are countries that only permit disenfranchisement by special court order. In France, only prisoners convicted of certain crimes lose their right to vote. In Germany, the law requires prisons to encourage prisoners to vote. The only German prisoners who are barred from voting are those convicted of electoral fraud and crimes undermining the "democratic order", such as treason.

    The Strike-Out
     

  50. The prisoners knew the path to democracy wouldn’t be easy.[10] This country has seen its struggles between ideal and reality, but the great ideals of democracy: equal suffrage, inclusiveness, tolerance and openness, have recalled it to its obligations as the longest running democracy in the world.
     

  51. Ironically, the first attack by the State was to strike out the proceedings and end the cause before it began. The Attorney-General argued that there is no inherent jurisdiction of the High Court to make a DOI, and there is no legislation expressly authorising it to issue one.
     

  52. However, Brown J held that there was an arguable case in the circumstances to make a DOI notwithstanding the difficulties we would face in the substantive hearing. Taylor v Attorney-General [2014] NZHC 1630

    The Waitangi Tribunal Proceeding
     

  53. On 10 July 2014, the Maori applicants filed a case in the Waitangi Tribunal, which alleged the 2010 Amendment breached the Maori citizenship right to vote under Article 3 of the Treaty of Waitangi (Te Triti O Waitangi) as well as their right to political representation and self-determination under Article 2 guaranteed by way of tino rangaritanga. (Wai  2472; The Electoral (Disqualification of Sentenced Prisoners) Amendment Act Claim).
     

  54. In a letter dated 16 July 2014, I wrote to the Crown Law Office seeking to resolve all proceedings without any further action. On behalf of the prisoners, I asked the Attorney-General to consider the matters seriously within fourteen days.
     

  55. The Crown Law Office waited until the fourteenth day to reply to the letter, and stated that Parliament had run out of time to make any changes to the law because the House was rising the following day, and since it was the beginning of the election campaign, I knew it wouldn't be sitting again until the end of 2014.[11]
     

  56. However, in anticipation of the Crown’s response, the prisoners applied to the High Court for a priority fixture on 25 July 2014 to hear their case before the election. On 31 July 2014, the High Court declined the application for an urgent hearing on the substantive case following the strike out action because the Court criticised the prisoners for taking a long time to file their claim. The Amendment was passed in December 2010 and the prisoners filed their case on 5 September 2013. However, it has been estimated that 90% of prisoners before the filing date in the High Court did not know they are prohibited from voting [12].
     

  57. On 7 August 2014, the Deputy Chief of the Waitangi Tribunal, Judge Savage, granted a priority fixture deeming it to raise “very important issues that should be inquired into by the Tribunal with some urgency”. Refer para [11] in the ruling below. However, it was not possible for the Tribunal to hear the Treaty claims before the election on 20 September 2014. (Wai 2472 #2.5.3 The Electoral (Disqualification of Sentenced Prisoners) Amendment Act Claim). This was devastating to the Maori prisoners. 
     

  58. The priority status was subsequently rescinded on 13 April 2015 following an application by the Crown that the prisoners file an amended statement of claim. Due to the lack of resources I had at my disposal, and the fact that I was acting pro bono, not to mention my focus on the prisoners' civil proceedings in the High Court, it was not possible to meet the Tribunal's deadline. 
     

  59. However, I applied again on behalf of the Maori prisoners for an urgent hearing in October 2016 to have the claim resolved before the October 2017 election. Despite my telephone calls to the Tribunal, the application was not considered until December 2016 on the eve of the Christmas break. On 16 February 2017, the application was declined again by Judge Savage. (Wai  2472, #2.5.14 ; The Electoral (Disqualification of Sentenced Prisoners) Amendment Act Claim). While acknowledging “this claim concerns a serious constitutional and civil rights matter” (at para [32]), Judge Savage referred to the fact that there was no chance of overcoming certain “hurdles” due in part to a shortage of resources (at para [40]).
     

  60. On 27 August 2018, I was approached by the Manaia Legal group and advised that they intended to file their own prisoner voting claim in the Tribunal. We decided the best way forward would be for the Manaia team to file a separate claim with a memorandum attached seeking a direction that both claims be heard together. We agreed this would help the Tribunal deliver a report in an efficient and expeditious manner with the greatest potential of effecting legislative change before the 2020 general election.

    The Pursuit of Interim Orders in the High Court
     

  61. On 28 August 2014, Arthur Taylor and Hinemanu Ngaronoa filed judicial review proceedings in the High Court challenging the legality and validity of the 2010 Amendment. We sought interim orders to preserve their position to vote at the impending election in October 2014. This was based on the entrenched provisions of the Electoral Act 1993, the Bill of Rights, and the Treaty of Waitangi, as well as the International Covenant on Civil and Political Rights (ICCPR).
     

  62. The High Court ruled against the prisoners in Taylor & Ors v The Attorney-General [2014] NZHC 2225. However, Ellis J stated that:[13]

    notwithstanding the numerous and weighty constitutional criticisms that have been made of s 80(1)(d), I am unable to conclude that it can be read down or otherwise invalidated.
     

  63. The prisoners immediately appealed on the grounds that the High Court did not invoke s 6 of the NZBORA to interpret ss 268(1)(e) and 74 of the Act in a manner consistent with their rights. The appellants relied on paras [78] and [79] of the judgment and footnote 35.
     

  64. On 16 September 2014, the learned President of the Court of Appeal, Justice Ellen France, declined the prisoners’ application. Her Honour stated that the appellants had waited too long to file their proceedings,[14] although none of the appellants knew that there was a potential remedy available to them.
     

  65. The appellants applied to review the decision of the learned President of the Court of Appeal on 19 September 2014. They stated that France P erred in placing the onus on the prisoners to bring the proceedings earlier in time when none of them had formal legal qualifications. The application was declined.  
     

  66. The prisoners were realistic but nonetheless disappointed by the rulings of the Court of Appeal. It was always going to be difficult persuading a court to postpone a national election until the rights of prisoners were decided. The prevailing factor was the balance of convenience, which clearly favoured the State. 

    The Substantive Proceedings following the Strike-out Ruling
     

  67. One year after the successful defence of the strike-out action, the High Court made legal history around the world. Heath J ruled that the superior courts have jurisdiction to issue a DOI, and His Honour made one,[15] which was the first in a common law country where the power was not expressly decreed by legislation. Taylor, Ngaronoa & Ors v The Attorney-General [2015] NZHC 1706; [2015] 3 NZLR 791
     

  68. Heath J stated:[16]

    The inconsistency 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. (Emphasis added, and footnote removed).
     

  69. For an academic analysis of the legal issues in the case, refer Andrew Geddis "Bliss was it in that dawn to be alive".
     

  70. The first DOI in this country was issued as follows:[17]

    Section 80(1)(d) of the Electoral Act 1993 (as amended by the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010) is inconsistent with the right to vote affirmed and guaranteed in s 12(a) of the New Zealand Bill of Rights Act 1990, and cannot be justified under s 5 of that Act. (Footnotes omitted).
     

  71. The Attorney-General appealed the decision of the High Court, which was heard before a Full Bench of the Court of Appeal on 26 October 2016. The Court of Appeal delivered a unanimous judgment in favour of the prisoners and upheld the decision of the High Court. Attorney-General v Taylor, Ngaronoa & Ors  [2017] NZCA 215; [2017] 3 NZLR  124Academic commentators have provided critical analysis of this landmark judgment. Refer Andrew Geddis: Taylor strikes again (but still has no right to take his place in the human race).
     

  72. The Attorney-General applied to the Supreme Court for leave to appeal the unanimous judgment of the Court of Appeal. The Supreme Court subsequently granted leave on 30 August 2017. Attorney-General v Taylor & Ors [2017] NZSC 131. 
     

  73. On 6 – 7 March 2018, the Supreme Court heard the final appeal on the jurisdiction of the High Court to make a DOI, and the decision is pending.

    Substantive Judicial Review in the High Court 
     

  74. Following the attempt to injunct the election by way of interim orders before Ellis J, the prisoners filed substantive judicial review proceedings in the High Court.
     

  75. The review was heard on 27-29 October 2015 before Fogarty J. His Honour read s 268(1)(e) of the Electoral Act to mean that only the age criteria under s 74 was entrenched. (Taylor, Ngaronoa & Ors v The Attorney-General [2016] NZHC 355); [2016] 3 NZLR 111.
     

  76. A ruling that the whole of s 74 was entrenched would have guaranteed the prisoners’ right to vote because the section could only be amended by a 75% majority of the House. Therefore, it could be struck down, not under the Bill of Rights, but by a basic lack of legislative manner and form. 
     

  77.  However, Fogarty J did find that s 6 of the Bill of Rights was activated, which led to a prima facie finding of discrimination against Maori on the basis of race. The Maori prisoners sought a DOI pursuant to the anti-discrimination provisions of the Bill of Rights, but Fogarty J concluded that this was not technically a case of discrimination in respect of the Atkinson test under the Bill of Rights.[18]
     

  78. The Supreme Court of the United Sates has held that if legislators make an effort to disenfranchise prisoners on account of their race, the law may be struck down as unconstitutional. (Hunter v. Underwood  471 U.S. 222 (1985). In Hunter, the provision was facially neutral, but the Court held it was designed by the 1901 Constitutional Convention with the purpose of excluding African Americans from the franchise. (At pp 232 – 233).
     

  79. This left the prisoners with opportunities to test the decision in the Court of Appeal.

    The Court of Appeal on the High Court’s Judicial Review Judgment
     

  80. The appeal of Fogarty J's decision was heard on 10 – 11 May 2017. The Court agreed with Fogarty J that only the age of an elector is entrenched under the Electoral Act 1993, not the whole of s 74. However, the Court did not agree with the Judge on the Bill of Rights issues, and held that s 6 was not activated because the interpretations of the legislation advanced by the prisoners were legally consistent with the right to vote. The Court relied on its own decision in Terranova Homes & Care Ltd v Service and Food Workers Union Nga Ringa Tota Inc.[19]
     

  81. The Court of Appeal did agree, however, that the prisoners’ interpretation of the legislation offered greater protection of the right to vote because it required a 75% majority of the House to amend entrenched provisions of the Electoral Act. Refer Ngaronoa, Wilde, Taylor and Ors [2017] NZCA 351; [2017] 3 NZLR 643 at para [37]
     

  82. Notwithstanding technical points of law, it remained clear to us that the 2010 Amendment removed the fundamental right to recall a government to its obligations, and the power to affirm one's allegiance to the body politic, which are cornerstones of a modern democracy.[20]
     

  83. Decisions of government affect all our lives. Issues of family, health, education, and a home to rear one's children depends upon the will of the people, and all of it can be taken away by a government that doesn’t respect the interests of all of its people..
     

  84. Therefore, it was not surprising, that the prisoners decided to apply for leave to appeal to the Supreme Court, which was granted in a decision dated 6 December 2017. Refer Ngaronoa, Wilde & Taylor v Attorney-General [2017] NZSC 183
     

  85. However, the Supreme Court declined to hear the issues of racial discrimination stating at para [2] that:

    The issues of discrimination and Māori over-representation in prison potentially raise matters of general or public importance. We do not, however, consider this is the right case to consider these issues and, in particular, the intersection between them. We would be considering the issues in a very particular context. Further, a legislative provision is involved and all that is sought is a declaration (Emphasis added)).
     

86. On 26 – 27 March 2018, the Supreme Court heard the final appeal on the entrenchment of s 74, and the decision is pending.

_________________________________________________________

[1] Taylor, Ngaronoa & Ors v Attorney-General [2016] 3 NZLR 111

 

[2] Refer to the report entitled Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Electoral (Disqualification of Convicted Prisoners) Amendment Bill.

 

[3] At p. 4

 

[4] Hansard, Electoral (Disqualification of Sentenced Prisoners) Amendment Bill, Third Reading [Volume 669: Page:15961] 8 December 2010. Hon Wayne Mapp p. 15962.

 

[5] Hansard, Electoral (Disqualification of Convicted Prisoners) Amendment Bill, Second Reading [Volume:667;Page:14679]  20 October 2010. Hon. Paul Quinn. 

 

[6] Hansard, NZPD Electoral (Disqualification of Convicted Prisoners) Amendment Bill, First Reading [Volume:662;Page:10346] 21 April 2010 Hon. Hone Harawira informed the House of the statistics of the prison population.

 

[7] Hansard, NZPD Electoral (Disqualification of Convicted Prisoners) Amendment Bill, Second Reading [Volume:667;Pages 14688 - 1469 20 October 2010.Hon. Hone Harawira.

 

[8] Hansard, NZPD Electoral (Disqualification of Convicted Prisoners) Amendment Bill, Second Reading [Volume:667;Page:14686] 20 October 2010. Hon. David Clendon

 

[9] Hansard, NZPD Electoral (Disqualification of Sentenced Prisoners) Amendment Bill, Third Reading [Volume 669: Page:15969] 8 December 2010. Hon. Rahui Katene

 

[10] This legal struggle began on 5 September 2013 when proceedings were filed in the High Court of Auckland. It will be over five years before there is finality in this country

 

[11] Letter from the Crown Law Office dated 30 July 2014. Case on Appeal Vol 3 p 316 cross ref Vol 2 p 230

 

[12] Refer affidavit of Arthur William Taylor dated 06 October 2014.

 

[13] Taylor and Ors v Attorney-General [2014] NZHC 2225

 

[14] Minute of Her Honour, France P dated 16 September 2014 para [5]

 

[15] Taylor, Ngaronoa & Ors v The Attorney-General [2015] NZHC 1706 at [79]

 

[16] At para [78](a)

 

[17] At para [79]

 

[18] Taylor, Ngaronoa & Ors v The Attorney-General [2015] NZHC 355

 

[19] Terranova Homes & Care Ltd v Service and Food Workers Union Nga Ringa Tota Inc. [2015] 2 NZLR 437

 

[20] Sauve v Canada (Chief Electoral Officer) [2002] 3 SCR 519 at [60]

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