An inmate at Waikeria Prison. Photograph: Toby Manhire

The Waitangi Tribunal just ripped to shreds a populist, pointless, pernicious law

A new ruling on the ban on prisoner voting delivers a fierce reminder of the need for urgent change. Now it’s over to the government: put up or shut up, writes Andrew Geddis.

In some ways, it tells us nothing we didn’t already know: the legislative ban on prisoners voting enacted in 2010 by National and Act Party MPs is a terrible law that shouldn’t ever have been passed. But in laying out how poorly conceived this law was and just how negatively it affects Māori in particular, He Aha Perā Ai? The Māori Prisoners’ Voting Report, which has just been released by the Waitangi Tribunal, presents us with a fierce reminder of the need for change.

The tribunal’s report makes (at least) four important findings. First of all, the government’s complete failure to pay any real attention to how a ban on prisoner voting would affect Māori (because of shameful overrepresentation in the prison system) breached the crown’s duty to be fully informed as a treaty partner. By the end of the tribunal hearing the crown gave up even trying to argue to the contrary; it accepted the way the legislation was created and enacted failed to consider the treaty implications of the change at any point.

Second, the legislation has had a grossly disproportionate effect on Māori. Under the old law in 2010 – under which only prisoners serving sentences of three years or more could not vote –  Māori were 2.1 times more likely than non-Māori to be removed from the electoral roll due to incarceration. That disparity was not good in itself.

However, when the new law was introduced in 2010, this disparity immediately leapt to 9.3 times more likely. And in 2018, Māori were 11.4 times more likely than non-Māori to be removed from the electoral roll due to incarceration.

In the tribunal’s view, introducing a law that has this degree of disproportionate impact on Māori electoral participation breached the crown’s duty to actively protect Māori interests under the treaty.

Third, the impact of disenfranchisement extends beyond a prisoner’s release from jail. The 2010 law has the effect of knocking a previously enrolled prisoner off the electoral roll, requiring them to re-enrol after release before being able to vote again. And many prisoners will never do so, meaning that they effectively become disenfranchised for life.

That fact also breaches the crown’s duty to actively protect Māori interests under the treaty.

Finally, the Tribunal considered and rejected the crown’s assertion that its decision to remove prisoners from the electoral roll was a reasonable exercise under its right of Kāwanatanga. The tribunal wasn’t having a bar of that claim:

Since its amendment, the legislation has indeed disproportionately disenfranchised Māori. In doing so, it has created an arbitrary distinction between otherwise equal citizens; in particular between Māori and non-Māori but also between Māori prisoners and the wider Māori population. The legislation is punitive and breaches Māori citizenship rights. It undermines the crown’s good government obligations to reduce inequality.

In other words, when the crown obtained the right of kāwanatanga under the treaty, the expectation was that it would use this in a responsible and equitable fashion. When it took the right to vote from prisoners, it fundamentally failed in that obligation.

So far, so measured. A formal report from the tribunal is not a place for editorialising; the impact of the tribunal’s recommendations lie almost entirely in the evidence it presents and the quality of its reasoning from that evidence.

Instead, it is in his cover letter presenting the tribunal’s report to the government that the chair of the tribunal panel, Judge Savage, really lets fly. First of all, he addresses the question of what is the point and purpose of a ban on prisoner voting.

During the course of the hearing we tried to understand what this legislation hoped to achieve. Could it really be thought that this would deter those contemplating crime? Perhaps it was thought that this would further chasten prisoners and so render them less likely to further offend. We asked the parties, including the crown, to address this question but to no avail.

Well, if the individuals appearing before the tribunal weren’t able to help it out, surely looking back to what the MPs who passed the legislation said could clear matters up. Given that they were considering a law intended to strip the right to vote from thousands of (predominantly Māori) New Zealanders, MPs must have been careful to spell out the really, really good reasons for doing so. I mean, they’d want to take their job as legislators seriously, wouldn’t they?

Apparently not.

The question of what the bill was intended to achieve at a practical level was not addressed [in parliamentary debates]. It seems unusual that an issue that would impact on such important matters as penal policy and electoral population could be decided on this basis. We wondered how a bill that had, it was said, popularity but no purpose and that had obvious treaty implications was progressed without those implications being examined and Māori being consulted.

I suppose “unusual” is one word for this state of affairs. “Pretty fucking dismal” is another, more apt summary. And the phrase “popularity but no purpose” is about as good a definition of “virtue signalling” as I think I’ve heard. This law was intended to scratch a particular populist itch without even trying to pretend that it would deliver any actual societal benefit whatsoever.

Which goes to explain the tribunal’s overall view about what should happen now.

We can see no utility whatsoever in any restriction on prisoner voting and recommend legislative change accordingly. In the knowledge that the Justice Select Committee will be considering electoral matters soon, this report is forwarded to [the government] urgently.

So, let’s recap where we are. In the near-decade since its passage, the legislation banning prisoner voting has been called “constitutionally outrageous” by a High Court judge, formally declared to be inconsistent with the New Zealand Bill of Rights Act by the Supreme Court, and now held to be in breach of Treaty principles by the Waitangi Tribunal. And that’s without considering what less impressive people like mere legal academics have said about it. 

The law has the formal effect of barring thousands of New Zealanders (disproportionately Māori) from voting at each election, and the practical effect of knocking hundreds from the electoral roll, which they then are highly unlikely to rejoin in the future. This despite the government’s stated aim of making voting as easy and accessible as possible.

It is manifestly bad law. The only reason it exists is that many New Zealanders might like it because they think prisoners are bad people and so don’t want them voting alongside “proper Kiwis” at an election. Which is a really, really terrible basis for deciding who should lose their right to vote.

Here, then, is a challenge to politicians on both sides of the aisle. Nick Smith, National’s spokesperson on electoral issues, has been very vocal of late about the current government’s allegedly constitutionally dubious actions in respect of electoral law. 

An admission that his party got this issue wrong, that the prisoner voting law should never have been passed, and an offer to join the current government in repealing it could demonstrate that his words represent more than convenient attack lines. Principles should matter, irrespective of whether it was your party or your opponents who made the law in question.

And for the government, it’s time to put up or shut up. Shortly after being elected, the attorney general, David Parker, and the justice minister, Andrew Little, made a public commitment to do things differently. Issues like the rule of law and individual rights would get given far greater priority under their watch.

Well, here’s where those fine words need to cash out into action. An Electoral Amendment Act has recently been introduced into the House. A provision to repeal s 80(1)(d) of the Electoral Act could be added to this bill, either through the Justice Committee’s report or a supplementary order paper at the committee stage. Doing so would remove the current stain from our statute books.

So, government (and National opposition responsible for creating this problem in the first place), the Tribunal has put the ball firmly back into your court.

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