Poll Increases Pressure on Parliament to Change the Law on Prisoner Voting

1. A Colmar Brunton poll conducted this month shows a majority of people would like to see prisoners serving sentences of less than three years imprisonment voting at general elections.

2. Mike Hosking eat your cake. In a previous post, I published a recording of my interview on Newstalk ZB with Mike Hosking The Untruths of Prisoner Voting. He wagered that a referendum on prisoner voting would favour a blanket ban. I was not so sure, and referred to Arthur Taylor's report from people up and down the country, which indicated a much different view. 3. The data from the poll increases the pressure on Parliament to change the law following the Supreme Court's ruling that the blanket ban on prisoner voting is inconsistent with the Bill of Rights. The climate of change in public support of prisoner voting rights is an indication that the anticipated repeal of the law following the first declaration of inconsistency (DOI) by the Supreme Court is not far away. This may prove to be the most compelling justification for the first new remedy under the Bill of Rights in twenty years.

4. Arthur Taylor and I argued for five years at every level of the superior courts that a DOI would serve a valid purpose of bringing the government to account for a law that breaches the Bill of Rights. However, the two dissenting judgments in the Supreme Court did not agree that a DOI would make the government change the law.

5. The poll found that 53% of people agree that the law should be changed to allow prisoners the right to vote while 44% disagree. Most prisoners serve sentences less than three years imprisonment so it is crucial for them as it is for all prisoners in the process of rehabilitation that they have a voice at an election in relation to decisions that will affect their lives when they are released such as housing, education, health and family.

6. All political parties in Parliament in 2010 voted against the disenfranchisement of prisoners except for the National Party and ACT New Zealand. The current parties in the coalition government voted against the blanket ban but New Zealand First was not elected to Parliament at the time.

7. The views of current Members of Parliament, Winston Peters and Tracey Martin in the 6 o'clock news item above, indicates they may have voted in favour of the blanket ban in 2010. Therefore, New Zealand First may well oppose a bill to repeal the law introduced to Parliament by another coalition party.

8. One of the problems for New Zealand First is that the Waitangi Tribunal found the prohibition on prisoner voting to be discriminatory in relation to Maori citizens because of their disproportionate representation in the prison system. Indigenous people in other countries around the world experience the same problem. Many Maori prisoners say they feel like refugees in their own country because they cannot exercise their right to vote, which is meant to be guaranteed by the Bill of Rights if you are a New Zealand citizen over the age of 18 years. Refer to Hinemanu Ngaronoa's afftidavit in a previous post.

9. Winston Peters says he is against changing the law because it would mean prisoners are "making" the law when they are responsible for breaking the law. As Winston knows there are three branches of government that have the power to make the laws of this land and none of them are situated in a penitentiary. While the judiciary does not like to be accused of law-making, it was in fact a common law process that established the jurisdiction to make a DOI under the Bill of Rights.

10. Prisoners are responsible and rightly credited with making the first application for a DOI in a common law country in the absence of express statutory authority for the courts to make one, but they did not make or create the jurisdiction. That was a function of the courts following the rule of law.

11. Any other group or individual could have taken the initiative to apply for a DOI in relation to another right or freedom. Only weeks after the first DOI was issued by Heath J in the High Court, I filed a a DOI under the anti-discrimination provisions of the Bill of Rights. This was on behalf of a parent whose daughter attended religious instruction classes at Red Beach primary school. We sought a declaration that the Education Act authorising religious practice in a secular school discriminates on the basis of religion.

12. Another problem is that breaking the law does not go hand in hand with the removal of the right to vote. Criminals are punished by serving custodial sentences that deny them their freedom. This means other rights simply cannot be observed because of the security and management of the prison. For example, the right to be free from unreasonable search and seizure and other privacy based rights. These are all rights that are incidental to a person's incarceration, but the right to vote at general elections is not. That is a matter that has nothing to do with imprisonment like the right to practise one's religion or speak one's language.

13. New Zealand First's position seems to invoke a social contract theory of justification for the status quo. As mentioned in a previous post, punishing all criminals exactly the same does not fit conceptually with the implied social pact that exists between us and the State. It fails to accommodate the overarching principle of sentencing that people should be punished in accordance with the gravity of their offending. Therefore a “fine defaulter” should not be punished the same as a homicidal maniac.