The duo behind the end of the prisoner voting ban

  • 24/11/2019

By Andrew Geddis for The Spinoff

Many prisoners who had the vote taken away from them will now see their rights restored. Otago University law professor Andrew Geddis outlines how we got here, and why he's so pleased to see the change.

OPINION: Today, the Labour-NZ First (with support from the Greens) Government announced it will repeal the complete ban on prisoner voting, instead returning to the pre-2010 law that disenfranchises only those prisoners serving sentences of more than three years. 

This is good news for New Zealand's democracy, as it (partially) removes a long-standing stain on our commitment to allowing full and equal participation in our elections. The legislative ban on prisoner voting was bad law, made in a terrible way, that only got passed to provide a trophy for the then-National government's "tough on crime" pool room.

But today's news is particularly sweet for a couple of individuals who have been central to the push to have this law reconsidered. I speak, of course, of former "prison lawyer" Arthur Taylor and human rights lawyer Richard Francois.

Together, they have trod a quite remarkable road through our judicial institutions in an effort to highlight the problems with this law and force elected MPs to face up to them. It's not too much of an exaggeration to say that in the process they have changed, or at least significantly clarified, our understanding of how our constitution works. That's not something many toilers in the fields of the law can say.

As such, the main events on their journey are worth revisiting, while recognising that they represent only snapshots from a much more arduous five-year trail. For every substantive decision wrenched from the courts, there were a myriad of procedural and scheduling matters to be navigated.

We can begin before the 2014 election, when Taylor and Francois first sought to have the legislation prohibiting prisoners from voting interpreted in a way that would allow them to do so. Having heard their case, Justice Ellis (in effect) said: "sorry … while I agree that this law is 'constitutionally outrageous', I simply can't do anything else but apply it." And so, the law stayed in effect and prisoners did not vote.

Our intrepid duo were not, however, finished. Following that election, Taylor brought an election petition to have John Key's victory in Helensville declared void on the basis that prisoners had unlawfully been prevented from voting in that electorate. That claim also was lost, and Key stayed on as an MP, and our PM.

Undeterred, Taylor and Francois also sought to have the prisoner voting ban declared void because the legislation had not been enacted in accordance with the Electoral Act 1993's entrenchment provision. This provision, they argued, required that 75 percent of MPs support any change to who is and isn't able to vote. The Supreme Court eventually disagreed with their claim, and so the law remained on the statute books.

So far, so novel … but so unsuccessful. However, one last line of legal challenge proved to be far more fruitful. Taylor and Francois argued that because the ban on prisoner voting was inconsistent with the guaranteed right to vote in the NZ Bill of Rights Act, the courts ought to formally recognise that fact through issuing a "declaration of inconsistency". And, in 2015, the High Court agreed with them.

Arthur Taylor.
Arthur Taylor. Photo credit: Newshub.

That declaration then was upheld first by the Court of Appeal, and finally by the Supreme Court. In a nutshell, the judiciary chose to make it clear that as a matter of law the ban on all prisoners voting imposes an unjustifiable restriction on the right to vote. So, while this ban has to remain in place - the courts having no power to invalidate it - its place in the statute books is decidedly questionable.

And this message was reinforced in August of this year by a report from the Waitangi Tribunal, where Francois had represented the claimants and Taylor had given evidence. It unequivocally stated that the ban on prisoner voting, which disproportionately affects Māori due to New Zealand's structurally racist criminal justice system, is a breach of the principles of the Treaty of Waitangi. 

As such, the gauntlet was cast down. The country's judiciary and Waitangi Tribunal were united in their condemnation of the substantive effects of this legislation, declaring it to be inconsistent both with the fundamental rights of individual New Zealanders and the basic covenant that underpins the governance of Aotearoa-New Zealand.

Today, our elected representatives responded. While not fully remedying the problem - prisoners serving more than three years still will remain disenfranchised - they are going to at least ameliorate it. And by so doing, they are showing that they accept that while Parliament may be "sovereign" in regards the laws it can pass, there are some things that it simply should not make a part of the nation's laws.

Having received that message from both the courts and the Waitangi Tribunal in relation to prisoner voting, it has listened. And so, let's take a moment to recognise the two individuals instrumental to getting that message sent; Taylor and Francois.

Whāia te iti kahurangi ki te tūohu koe me he maunga teitei.

Andrew Geddis is a professor at the University of Otago's Faculty of Law.