Kate Hawkesby Interview; Members' Bill Proposes to Amend the Law on Prisoner Voting

The Electoral (Strengthening Democracy) Amendment Bill seeks to repeal sentenced prisoner disenfranchisement. This action supports the Majority View of the Supreme Court in the Declaration of Inconsistency (DOI) case, but will the Minority have the final say in terms of it actually changing the law?

1. On 06 March 2019, the Green Party placed a private member's bill in the ballot before the House of Representatives. Part 2 of the Bill has a clear purpose of repealing the blanket ban on prisoner voting. On 09 November 2018, the Supreme Court ruled that disqualifying all prisoners from voting breaches the Bill of Rights because all New Zealand citizens over the age of 18 years are guaranteed the right to vote. Golriz Ghahraman introduced the private member's bill having previously questioned the Minister of Justice whether the government would commit to overturning the ban on prisoner voting to reflect the majority decision of the Supreme Court. The House was subsequently informed by the Hon. Stuart Nash on behalf of the Minister of Justice that it "is not a priority for the time being". (Refer Hansard NZPD; Wednesday, 28 November 2018 - Volume 735. Question 8 - Golriz Ghahraman).

2. One of the major arguments of the prisoners throughout the legal proceedings was the importance of a DOI to bring about changes to the law to vindicate the claimants' rights. The minority in the Supreme Court stated that there was no guarantee that a DOI would persuade the majority of the House to vote in favour of amending the law in question. It was stated at para [134] that:

Rather, a declaration would simply hang in the air and possibly create some sort of moral obligation on the part of the legislature to reconsider. That in turn carries the risk that a formal order of the court may be simply ignored, with the consequential danger of the erosion of respect for the integrity of the law and the institutional standing of the judiciary. (Footnotes omitted).

3. I have argued that a DOI from the highest court in the country would have serious repercussions for a government that ignores it. It is important not to overlook the impact of the United Nations once claimants have exhausted all their domestic remedies. The reports of the Office of the High Commissioner of Human Rights (OHCHR) and/or the United Nations Human Rights Committee (UNHRC) etc., will inevitably highlight the actions or inactions of the rights infringing government. Depending on the extent of incriminating findings, the government in receipt of a damaging report may face enforcement measures up to and including expulsion from the General Assembly. This would be humiliating for a government like New Zealand that claims to be a champion of rights and freedoms and treats all forms of racial discrimination with disdain.

4. On 04 March 2019, I was interviewed by Kate Hawkesby on her Early Edition show on Newstalk ZB. (Refer video above). A segment was replayed on radio at the news at 7:00 a.m. It demonstrates the kind of pressure a government can face following a DOI issued by the Supreme Court. In this case all the political parties in the current coalition government, with the exception of New Zealand First,[1] voted against the 2010 Amendment and spoke critically about its purpose and effects. However, the same coalition parties are now doing nothing about it, or state that amending the law is "not a priority". As a result, they are the new human rights violators because their legislative inertia in the House perpetuates the breach of the Bill of Rights that began in 2010 by the National Party and Act New Zealand. The superior courts have held that the breach of the right to vote (regardless of which political party is responsible for it) cannot be justified in a free and democratic society. And the Attorney-General agrees.

5. As time passes, however, with no changes to the law notwithstanding a DOI by the highest court in the country, suggests that the minority view of the Supreme Court in its landmark judgment may yet have primacy.


[1] New Zealand First was not elected to Parliament at the time the blanket ban of prisoner voting was passed in 2010.