The issue of whether prisoners should have the right to vote (and, if so, which prisoners) has long troubled a number of democracies. The current position in the United Kingdom is that no prisoner serving a custodial sentence after conviction can vote, albeit that the Scottish and Welsh Assemblies currently are taking steps to allow some prisoners to do so in devolved elections (see Neil Johnston, “Prisoners’ voting rights: developments since May 2015”, Commons Briefing papers CBP-7461, Sept. 30, 2019). New Zealand currently mirrors the UK in barring all sentenced prisoners from voting.

However, New Zealand’s Minister of Justice recently announced that the law will be amended before the next general election in late 2020 to enfranchise prisoners serving sentences of less than three years. This change follows sustained criticism of the complete ban on prisoner voting, including a formal judicial declaration that it is inconsistent with the right to vote guaranteed in the New Zealand Bill of Rights Act 1990 and a finding that it breaches the Crown’s obligations to Māori under the Treaty of Waitangi.

Given the announcement, this post reprises the topic’s recent history to explain why the New Zealand Government felt the need to act. It then considers what the announcement might mean in terms of the constitutional importance that is attached to judicial views of a piece of legislation’s substantive merits. It concludes that the announcement represents an important, albeit tenuous, development in the dialogue that occurs between the judicial and political branches of New Zealand’s government.

Legal challenges to New Zealand’s prisoner voting ban

New Zealand’s ban on any sentenced prisoner voting dates to 2010, when Parliament voted by a 63-58 majority to enact a members’ bill authored by a backbench MP from the governing National Party. That move attracted criticism at the time on both substantive and procedural grounds (see A Geddis, “Prisoner Voting and Rights Deliberation: How New Zealand’s Parliament Failed” [2011] New Zealand Law Review 443). Despite such concerns, the new law appeared to settle matters; no prisoner sentenced after it came into effect could be registered to vote whilst they remained behind bars.

However, a series of actions in the nation’s courts sought to challenge the legislation and its effects. Shortly before the 2014 general election, the High Court was asked to grant an injunction to enable at least some prisoners to participate in that contest. While agreeing that the legislative provision prohibiting all prisoners from voting was “constitutionally objectionable”, the High Court nevertheless held that “Parliament has (for now) spoken” in a way that allowed for only one interpretation (see Taylor v Attorney-General [2014] NZHC 2225 at [80]). As such, the statute had to be applied as apparently intended, which in turn prevented all sentenced prisoners from voting.

A second line of attack then sought to have the legislative provision declared altogether void on the ground that it had not been enacted in accordance with the Electoral Act 1993’s entrenchment provision. This provision, it was argued, requires that at least 75 percent of MPs support any change to voting qualifications. The Supreme Court eventually rejected this claim, leaving the voting ban on the statute books (see T Shiels and A Geddis, “Tracking the Pendulum Swing on Legislative Entrenchment in New Zealand” Statute Law Review, hmz006).

The final legal challenge proved more fruitful. The courts were asked to recognise through a formal “declaration of inconsistency” that the ban on prisoner voting unjustifiably limited the New Zealand Bill of Rights Act 1990, s 12 guarantee of the right to vote. In 2015, the High Court agreed with the claim and issued the first such declaration in New Zealand’s legal history. That declaration then was upheld first by the Court of Appeal, and finally by a majority in the Supreme Court. In doing so, the judiciary chose to create a novel remedy as a “means of vindicating the right in the sense of marking and upholding the value and importance of the right” at issue, due to its “responsibility to declare and maintain the boundaries and protect against erosion of human rights”(Attorney-General v Taylor, [2018] NZSC 104, [56]; [117]; for comment see L Sirota, “Breaking the Silence: New Zealand’s Courts and Parliament after Attorney-General v Taylor” (2019) 30 Public Law Review 13).

A report from the Waitangi Tribunal further reinforced this judicial conclusion on the legislation’s shortcomings. The Waitangi Tribunal is a permanent commission of inquiry that makes recommendations on claims brought by Māori (New Zealand’s indigenous people) relating to Crown actions which breach the promises made in the Treaty of Waitangi (which is regarded as New Zealand’s founding constitutional compact). Its report unequivocally stated that the ban on prisoner voting, which disproportionately affects Māori due to New Zealand’s structurally racist criminal justice system, represents a breach of those promises:

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.

(Waitangi Tribunal, “He Aha Perā Ai? The Māori Prisoners’ Voting Report” (Wai 2870), August 2019, 31.)

Consequently, the Tribunal recommended that the Electoral Act 1993 be amended urgently to remove the disqualification of all prisoners from voting, irrespective of sentence.

The political response to these legal challenges

Neither a judicial declaration of inconsistency nor a Waitangi Tribunal recommendation affects an enactment’s formal status as law. Nor is there any “hard law” obligation on the executive or legislature to respond to either message in any particular way. The Supreme Court has said only that a declaration of inconsistency “may… be of assistance to Parliament ifthe subject arises in that forum” (Attorney-General v Taylor [2018] NZSC 104, [55], quoting Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 (CA), [20]); albeit that an earlier decision spoke of a “reasonable constitutional expectation” that rights inconsistent legislation would be reconsidered (Hansen v R [2007] NZSC 7,[254]). And while the Treaty of Waitangi is considered to be “binding on the honour of the Crown”, so that recommendations of the Waitangi Tribunal ought to carry some mana or authority, the Treaty is not directly enforceable within New Zealand’s legal system (Hoani te Heuheu Tukino v Aotea District Maori Land Board [1941] AC 308).

Therefore, the impact of these assessments of the legislation’s merits ultimately depended upon their reception by New Zealand’s political executive; the ministers in cabinet who ultimately decide on and direct public policy. To adopt Justice Matthew Palmer’s metaphor, to what extent will the “language of law” spoken by the courts and Waitangi Tribunal translate into the “language of politics”— “a language of eclectic pragmatism that is rooted in the present”—spoken by politicians in government? (see M Palmer, “Open the Doors and Where are the People?: Constitutional Dialogue in the Shadow of the People”, in We, The Peoples: Participation in Governance, C Charters and D Knight (eds) (Wellington: Victoria University Press, 2011) 50, 58).

That question perhaps was particularly important in relation to the response to the declaration of inconsistency. As a judicially crafted remedy, the existence of which the Crown had opposed all the way to the Supreme Court, it was conceivable that the political executive may have viewed it as little more than an impertinent irritant. Notably, the Minister of Justice’s immediate response to the Supreme Court’s upholding of the declaration in 2018 was to say that the matter simply was “not that much of a priority” for the government. However, when announcing the change to the law he expressly referenced both the courts’ declaration and the Tribunal’s report. The views of those institutions thus appear to have had the effect of moving the issue up the government’s list of matters requiring legislative reform.

Nevertheless, political concerns still shaped the policy response, in that the government opted only for a return to the pre-2010 status quo rather than a more radical enfranchisement of all prisoners. That decision likely reflects the need to get agreement across the three different political parties that must cooperate in New Zealand’s governing coalition arrangements. It also allows the government to argue that “the worst of the worst” behind bars will remain unable to vote.

Furthermore, the move to amend the law has been strongly criticised by the parliamentary opposition. Its leader has pledged to reintroduce the ban if elected in 2020, on the grounds that it represents “a question of values, not some sort of legal nicety”. Consequently, the legal assessment of the rights and Treaty of Waitangi consistency of a total ban on prisoner voting hardly has finally settled the issue in New Zealand.

Conclusion

The announcement that voting rights will be restored for at least some New Zealand prisoners is notable both as a substantive policy development and also because of how it has come about. The courts’ declaration of inconsistency and Tribunal’s recommendation served as a constitutional prompt to a political executive that ultimately was open to hearing the message that these institutions intended to send. That openness then reveals something important about the current “dialogic” interaction between the different branches of government in New Zealand (see M Palmer, “Constitutional Dialogue and the Rule of Law” (2017) 47 Hong Kong Law Journal 505).

However, the courts’ and Tribunal’s message by no means represents the last word on the matter. The government’s chosen response has been mediated by the political question of what will the various members of its governing coalition accept. And the opposition’s rejection of this response indicates that the policy weight to be attached to such messages is still very much a point of contention in New Zealand’s constitutional context.

Andrew Geddis, Professor, Faculty of Law, University of Otago

(Suggested citation: A. Geddis, ‘Restoring the Voting Rights of (Some) New Zealand Prisoners’, U.K. Const. L. Blog (27th Nov. 2019) (available at https://ukconstitutionallaw.org/))