Maori Prisoners Seek Relief in the Waitangi Tribunal

 

The Electoral Act is Inconsistent with the Principles and Articles of the Treaty.

 

1. On 10 July 2014, a group of Maori prisoner led by a woman, Hinemanu Ngaronoa, filed a case in the Waitangi Tribunal - Wai 2472; The Electoral (Disqualification of Sentenced Prisoners) Amendment Act Claim (the Claim).

 

The Essence of the Claim

2. The claim sets out the legal framework in relation to the case. The exclusion of prisoners from voting is governed by s 80(1) (d) of the Electoral Act 1993 (the Act), which provides that:

The following persons are disqualified for registration as electors…a person who is detained in a prison pursuant to a senntence of imprisonment imposed after the commencement of the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010.

3. The right to vote, however, is a State guaranteed right protected by s 12(a) of the Bill of Rights, which states: Every New Zealand citizen who is of or over the age of 18 years— (a) has the right to vote in genuine periodic elections of members of the House of Representatives, which elections shall be by equal suffrage and by secret ballot…

4. Obviously, all indigenous people are citizens of the country, and all the claimants are over the age of 18 years.Therefore, they all have standing to bring their claims under the jurisdiction of the Waitangi Tribunal.

 5. The first claim alleges that Maori disenfranchisement under the Act breaches the fundamental right of citizenship to vote in general elections. They rely on Article 3 of the Treaty of Waitangi (te Triti o Waitangi)), which guarantees Maori the same rights as British subjects. The Maori Electoral Option Report, states that Maori political representation, which embraces the Maori citizenship right to vote, is one of the most important rights protected under Article 3[1].

6. Ironically, prisoners who are British subjects in that nation are currently entitled to vote at general elections if they are serving a sentence of less than one year imprisonment. Refer “Council of Europe accepts UK compromise on prisoner voting rights 2017".

7. The second argument by the claimants is that the Act breaches their right to political representation and self-determination under Article 2 of te Triti because Maori autonomy is guaranteed by tino rangatiratanga (self determination), and Maori disenfranchisement is inconsistent with the obligation of the Crown to protect rights conferred on Maori under Tiriti.[2]
 

8. The claimants make a further argument that the disqualification of Maori prisoners dilutes the Maori electoral population, and over time results in a reduction in the total number of Maori electorates. The State is required in law to take proactive measures to promote the Maori Electoral Option. Refer, Taiaroa v Minister of Justice (No 2) [1995] 1 NZLR 411 (CA). However, sentenced prisoner disenfranchisement removes thousands of Maori from the Maori electoral roll.

9. The final argument by the complainants encapsulates several principles under te Triti. Maori in society experience pre-existing disadvantages, and the act of disqualifying them from voting under the electoral laws imposes another disadvantage upon an indigenous people that disproportionately and adversely impacts them, which can' be justified in a free and democratic society. This is the basis of the claim of discrimination.

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

11. At the time the Act was passed, all members of Parliament knew, or should have known, that the majority of prisoners were Maori. Hansard, NZPD Electoral (Disqualification of Convicted Prisoners) Amendment Bill, First Reading. Refer Volume 662, 21 April 2010 pp 10346 - 10347. In speeches in the House, members stated that the law discriminates against Maori. Hansard, NZPD Electoral (Disqualification of Convicted Prisoners) Amendment Bill, Second Reading [Volume:667; 20 October 2010. See Hon. Hone Harawira at pp. 14688 - 14689. Members also specifically referred to the disproportionate number of Maori relative to non-Maori currently in prison. Refer Hansard, NZPD Electoral (Disqualification of Convicted Prisoners) Amendment Bill, Second Reading Volume:667; pp. 14686 - 14687, 20 October 2010. Hon. David Clendon. It is clear the House knew who the law was targeting and susbequently voted in favour of it. Refer.Hansard, NZPD Electoral (Disqualification of Sentenced Prisoners) Amendment Bill, Third Reading Volume 669: Page:15961] 8 December 2010. Hon. Rahui Katene at pp 15969 -15970.


Procedural History

12. 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 of Judge Savage in Wai 2472 # 2.5.3 . However, it was not possible for the Tribunal to hear te Tiriti claims before the election on 20 September 2014.[3]. The claimants were devastated.

13. 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, and the fact that I was acting pro bono, as well as my prolonged focus on the prisoners' proceedings in the superior courts, it was not possible to meet the Tribunal's deadline.

14. However, I applied again on behalf of the Maori prisoners for an urgent hearing in October 2016 with the aim to have my clients’ claims resolved by the Waitangi Tribunal before the October 2017 election. I received no communication from the Registry in terms of scheduling the case, so I filed another application for an urgent hearing. The application was not considered until December 2016 on the eve of the extended Christmas break taken by the judiciary and lawyers. As a result, the opposition were granted a deadline in 2017. On 17 February 2017, the application was declined again by Judge Savage. (Wai 2472 # 2.5.14).

15. The judge acknowledged “this claim concerns a serious constitutional and civil rights matter” (at para [32]), but His Honour referred to the fact that there was no chance of overcoming certain “hurdles” due in part to a shortage of resources. ( Judge Savage. (Wai 2472 # 2.5.14) at para [40]).

16. 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.

17. I filed a third application for an urgent hearing in the Tribunal on 24 October 2018. On 30 October 2018, the Chief Judge of the Tribunal, W.W. Isaac, ordered the Crown to file submissions in reply before 13 November 2018. I also have a right of reply on behalf of my clients, to file our own submissions by 27 November 2018. Refer Judge Isaac Wai 2472 # 2.5.15.

What Happens Next?

 

18. The current Minister of Justice, Andrew Little, has floated the idea of amending the Act so that prisoners who are serving less than three years imprisonment shall be entitled to vote. This was the law prior to the 2010 Amendment. The government certainly has the numbers in the House of Representatives to achieve the change. Therefore, some people raise the question why these proceedings are relevant at all. Apart from the vindication of Maori rights under te Tiriti, even if the law is amended, there is a real possibility that a different government could change the law again and revert to absolute sentenced prisoner disenfranchisement. A ruling by the Tribunal that the present law is inconsistent with the principles and articles under Tiriti would be a weighty factor bearing on the minds of Members of Parliament in the future.

19. The claimants rely on reports from the Waitangi Tribunal such as the Maori Electoral Option report and others as well as Maori Treaty jurisprudence. As a result, there is no need for extensive expert evidence on Maori voting rights in this case. It is also unnecessary to collate historical records and prepare surveys and collect extensive data. There are few unresolved issues of fact in relation to their claim, which means it can be dealt with more expeditiously relative to many other claims. 

20. Accordingly, the Tribunal has scheduled the case to be heard in Wellington from 20 May - 23 May 2019, and a decision will be delivered before the 2020 election. The claimants anticipate that the Tribunal will make recommendations that the law be amended so that the blanket restriction can be revoked. However, this is not a forgone conclusion, and the Crown Law Office and the Attorney-General are working very hard to defeat the claims by the plaintiffs (including an application for an extension of time to file opening submissions). Therefore, the applicants will be looking for support in all corners of society to oppose the Crown's resistance to change. 

______________________________________________________________________

 

 

[1] Waitangi Tribunal Maori Electoral Option Report (Wai 413, 1994) at para [3.5].  

 

[2] Waitangi Tribunal Maori Electoral Option Report (Wai 413, 1994) at para [3.5].  

 

[3] Wai 2472 # 2.5.3 at para [11].

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