1. Prime Minister, Jacinda Ardern, acknowledges that prisoners serving sentences of three years imprisonment or less are eligible to vote in general elections. However, the current law prohibits all prisoners from exercising this right, which is guaranteed under the Bill of Rights in a free and democratic society. As a result, the call to change the law is becoming louder.
2. A law that prejudices and discriminates against another race is rightly called a racist law. Prisoners' rights advocate, Arthur Taylor, calls it as it is in this video. He says when all the superior courts find that the law cannot be justified in a free and democratic society, and a specialist Tribunal on Maori affairs decides that it prejudices Maori in several ways, it inevitably leads to the conclusion that the Electoral Act is racist.
3. Importantly, we argued that the Electoral Act discriminates against Maori in the High Court in Auckland. Fogarty J found that the law does discriminate against Maori in terms of the disadvantage they face by losing the right to choose to be on the Maori roll. In the end, however, the High Court ruled against the applicants because their claim did not satisfy all the legal requirements pronounced by the Court of Appeal in the case of Atkinson. As a result, the Court was bound to hold that there was no discrimination under s. 19 of the Bill of Rights.
4. Of course, the applicants appealed this decision in the court above. That court found that there were differential effects between Māori voters and non-Māori voters, but these differences did not amount to "material disadvantage" in order to prove discrimination on the basis of race.
5. The prisoners did not accept the Court of Appeal's decision and decided to seek leave of the Supreme Court to appeal the decision. In a detailed application and set of submissions by counsel in the Supreme Court, it held that while certain grounds of review required further consideration, the discrimination claim did not. The Supreme Court stated:
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. (Footnotes omitted).
6. It became a matter of necessity to pursue the vindication of Maori prisoners' rights in a forum more amenable to their rights and concerns, and one that would allow them to adduce overwhelming evidence to prove their claims.