Waitangi Tribunal's Extraordinary Ruling Discussed in TVNZ Exclusive

Barrister, Richard Francois, interviewed by John Campbell about the Waitangi Tribunal's Report with prisoner right's advocate and former inmate Arthur Taylor.


1. On 10 July 2014, a group of Maori prisoners led by Maori women’s advocate, Hinemanu Ngaronoa, filed a case in the Waitangi Tribunal claiming the 2010 Amendment of the Electoral Act (the Act) breaches the articles and principle of the Treaty of Waitangi (te Tiriti o Waitangi).

2. The claimants were supported by jailhouse lawyer, Arthur Taylor, who provided expert evidence on prisoner voting rights and the disproportionate representation of Maori in the prison population. (Refer Wai 2472; The Electoral (Disqualification of Sentenced Prisoners) Amendment Act Claim (the Claim).

3. We argued on behalf of the claimants that s 80(1) (d) of the Electoral Act breaches the obligations of the Crown to comply with domestic human rights legislation through good governance under Article 1 of te Tiriti. (Refer Wai 2417 Whāia te Mana Motuhake at 2.4.2(2), page 25). We further submitted that the law qualifies Maori autonomy (or self determination) in such an unreasonable way it breaches the concept of tino rangatiratanga under Article 2. And in terms of Article 3, we claimed that Maori political representation is a guaranteed Maori citizenship right, and therefore it must be actively protected.

4. As part of the Crown's kawanatanga obligations to affirm and promote human rights under Article 1, my clients claimed that the effects of the Act are discriminatory because Maori have a disproportionate number of people in the prison population compared to non-Maori. Obviously, a law that intentionally targets Maori as stated in Parliamentary debates on the proposed legislation raises the issue of whether the MPs who voted in favour of it are racist, too.

5. It is important to remember that on 09 November 2018, the Supreme Court issued a momentous declaration that the Act breaches the right to vote and is inconsistent with the Bill of Rights. This is commonly known as the DOI case. But instead of changing the law which would have been a responsible step to follow in terms of this country's commitment to international human rights law, the government could not even commit to amending the Act in order to remedy the breach, and stated it was "not a matter of priority".

6. However, to do nothing now in the face of such damning findings by the Waitangi Tribunal would raise a serious constitutional issue about our principal law making institution, and what its real contemporary function and purpose is in a free and democratic society.

Section 80(1) (d) of the Electoral Act Breaches the Principles and Articles of the Treaty.

7. The Waitangi Tribunal released its report on 12 August 2019, and it can be read here entitled HE AHA I PĒRĀ AI. John Campbell above states that it is an "extraordinary" report, and the Tribunal treats "with disdain" the Act banning all prisoners from voting.

8. The Tribunal released the full transcript of the hearing on 26 September 2019. During the hearing between 20 - 22 May 2019, the Crown's witnesses made several crucial admissions in relation to the discriminatory effects of the blanket ban. One expert analyst employed by Statistics New Zealand, Eriko Kamikubo-Gould conceded that if prisoners were entitled to vote it could as a mathematical probability result in the creation of one more Maori electorate. (Transcript at pp. 280-281). Conversely, it follows that prisoner disenfranchisement has in all probability reduced the number of Maori electorates at present by at least one seat.

9. Evidence adduced by our witnesses in the Tribunal shows that in 2018 Maori were 11.4 times more likely to be removed from the electoral roll than non-Māori because they are decidedly over represented in the prison system. The Tribunal found therefore that the concomitant reductions in the Maori electoral population, the Maori ratio and the Maori electorates is "prejudicial".

10. The Tribunal relied on Parliamentary debates and other reliable material to support the conclusion that disenfranchising prisoners under s 80(1)(d) has no clear and genuine purpose. It was also clear that the Treaty implications were not considered before the legislation was passed evidenced by the fact Māori were not consulted at all during the select committee process.

11. In November 2018, the Supreme Court ruled that the Act was in breach of the right to vote under s 12 of the Bill of Rights. Attorney-General v Taylor [2018] NZSC 104. http://www.nzlii.org/nz/cases/NZSC/2018/104.html. At the Tribunal hearing, the Crown conceded that the law disproportionately impacts upon Māori. A failure to consider Treaty implications was properly conceded by Crown counsel, too. This raises a question why the Supreme Court refused to hear the appellants' discrimination claim in the first place. Human rights violations do not come much more serious than discrimination on the basis of race and indeed indigeneity.

12. Evidence at the Tribunal also showed that voting is a learned habit, so once it is acquired it's likely to be repeated. Therefore, the Tribunal found that there is an opportunity to inculcate prisoners into the democratic process rather than isolating them from it, which the Act continues to do at present. The Tribunal also accepted expert opinion that a person who votes once or twice he or she is likely to continue voting, which has a "ripple effect" into his or her whanau and wider community. The Tribunal stated that “in this sense, voting could be used as an educational tool having a positive effect”.


13. The Tribunal made the following recommendations:

  1. Current legislation amended urgently to remove the disqualification of all prisoners from voting, irrespective of sentence.

  2. The Crown to start a process immediately to enable and encourage all sentenced prisoners and all released prisoners to be enrolled in time for the next general election in 2020.

  3. A process implemented to ensure Crown officials provide properly informed advice on the likely impact that any bill, including members' bills, will have on the Crown's Treaty of Waitangi obligations.

The Impact of the Tribunal's Findings on the Supremacy of Parliament

14. It is well known that the Treaty of Waitangi Act 1975 precludes the Tribunal from making binding recommendations on Parliament. Like the Bill of Rights, the Treaty is neither entrenched nor supreme law in this country. However, the supremacy of Parliament is also no longer absolute in the traditional sense. The Supreme Court of the United Kingdom has stated that Parliament cannot do whatever it likes simply by virtue of the democratic mandate for its actions. R (Chester) v Secretary of State for Justice [2014] AC 271 at para [112]. See also the judgment of the Supreme Court in the decision of Boris Johnson to prorogue parliament. R (on the application of Miller) v The Prime Minister [2019] UKSC 41 at para [41]. And a modern democracy is about more than respecting the views of the majority. It is also about "safeguarding the rights of minorities, including unpopular minorities". (Chester at para [88] as per Lady Hale).

15. The landmark judgment of the Supreme Court of New Zealand in relation to the DOI in 2018 has forced Members of Parliament to think a lot more before passing legislation that is inconsistent with the Bill of the Rights. Members of Parliament are directly accountable for voting in support of legislation that the superior courts decide is in breach of human rights and freedoms.

16, Similarly, the intersection of the Bill of Rights and the rights of Maori under te Tiriti o Waitangi is illustrated well in this case. The discriminatory effect 0f the Act on indigenous people who already experience social, economic and political disadvantage, places a great responsibility on legislators to think very carefully before voting in favour of treaty infringing legislation.