Cross-Examination: Locked out of the Conversation – The Consequences of Depriving Prisoners of Voting Rights

Jade Du Preez, content contributor

The New Zealand prison system has come under criticism with the recent release of a UN Report from the Committee against Torture.[1] The report comes from a body of independent experts monitoring compliance with the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Highlighted were concerns over Māori over-representation at every stage of the criminal justice system.

“The State party should increase its efforts to address the overrepresentation of indigenous people in prisons and to reduce recidivism, in particular its underlying causes, by fully implementing the “Turning of the Tide” prevention strategy through the overall judicial system and by intensifying and strengthening community-based approaches with the involvement of all stakeholders and the increased participation of Maori civil society organizations.”[2]

This isn’t a new problem. At 30 June 2012, Māori made up 51 percent of the 8,618 prison population despite making up only 14.9 per cent of the general population.[3][4] Turning of the Tide and the overarching Creating Lasting Change 2011–2015 Strategy are current attempts from the Department of Corrections that involve efforts to address Māori over-representation. But what are the results for lives already affected, and how has the law played a part?

Voting Rights Legislation

The controversial Electoral (Disqualification of Sentenced Prisoners) Amendment Act passed in 2010 and received considerable response from groups including the Equal Justice Project and JustSpeak.[5] The Act removed the right to be registered to vote in the general election for prisoners serving a term less than three years, those in remand and those in police custody. It also required the Electoral Registrar to remove the names of those prisoners from the electoral roll.

Criticism from opposition MPs included the content being illogical, in breach of section 12 of NZBORA,[6] and essentially a political tool to underline a “tough on crime” stance.[7] The private member’s bill introduced by former National MP Wayne Mapp was defended as being in line with the position of the two largest democracies in denying the right of prisoners to vote.[8] A further argument raised was that prisoners serving sentences of longer than 3 years were already barred from voting, so it was a levelling of the law.[9]

At the Equal Justice Symposium on Prisoners’ Rights to Vote in 2013, speakers from the University of Auckland, the media and Just Speak raised issues including the breach of NZBORA and the clash with principles of democracy. Additional rights concerns included the dehumanisation of offenders via the creation of a lesser status of person. History would seem to agree. Disenfranchisement of this kind has precedent in the ancient Greek concept of civil death – the mark of infamy having been a significant punishment affecting an individual’s participation in public life.[10] Such a “them and us” approach seems unlikely to aid in rehabilitation and reintegration with society.

There has been significant opposition not only to the new legislation, but to the ban on any prisoner accessing the right to vote. Statistically, the change is significant. Of the sentenced population in the last calendar year, 88% were serving sentences of less than 3 years; of Māori prisoners 91% are serving a sentence of less than 3 years and 58% for less than 6 months.[11] While a sentence may not coincide with an election, the problem of removal from the electoral roll is concerning. In the 3rd reading before legislation was passed Labour MP Carmel Sepuloni raised her concerns as follows:[12]

“It is hard enough to keep people enrolled in the best of circumstances. This bill will basically result in the mass disenfranchisement of many of the people who go to prison, because they are unlikely to re-enrol on release. They will be even less engaged than perhaps they were before they went in.”

Voting rights in litigation

Prior to the 2014 general election a group of prisoners, including the prominent “bush lawyer” Arthur Taylor, sought a court declaration that the 2010 amendment was inconsistent with the right to vote as protected by NZBORA.[13] While the initial hearing survived the Crown’s bid to strike out the application, the court was reluctant to make such a declaration. As the Attorney-General had already made a section 7 report pointing to the inconsistency to the House, the courts saw it as unnecessary to raise the issue again for reasons of comity.[14]

The second case of the same parties arose in September in 2013.[15] Arguments covered the inconsistency with NZBORA, the potential breach of a manner and form restriction by amending the Electoral Act and  the breach of Treaty principles. The appeal was dismissed as “s80(1)(d) was clear on its face and could not bear an alternate meaning, so did not permit a reading consistent with the NZBORA or relevant international obligations”. The manner and form restriction was not connected to the Electoral Act in its entirety so could not be used as a basis for challenge. Justice Ellis said “Parliament had spoken for now,” though she followed up with an outline of the criticisms the Act had received.[16]

In the latest news of 24 July, a formal declaration has been issued by Heath J in Auckland’s High court.[17]

“Section 80(1)(d) of the Electoral Act 1993 (as amended by the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010) is inconsistent with the right to vote affirmed and guaranteed in s 12(a) of the New Zealand Bill of Rights Act 1990, and cannot be justified under s 5 of that Act.”

Though this declaration does not change the position of the law, it is a significant step in raising public awareness and drawing the issue to Parliament’s attention once more.

As news develops regarding the NZBORA challenge, the appellants have continued with a Waitangi Tribunal hearing expected in the future. The claimants seek, among other things, a finding that the amendment act is inconsistent with the principles of the Treaty of Waitangi. While no date has been set at present, the Tribunal ‘s initial response from the Judge P J Savage was as follows:

“I am aware that the same issue for prisoners in general is a live one in a number of western democracies. Maori form a large proportion of the New Zealand prison population. It is important that consideration be given to the Treaty implications of the present legislation.”[18]

The point has been addressed by Kim Workman of Rethinking Crime.[19] He suggests that it is likely to be Article 3 of the Treaty requiring consideration; that which extends the rights and privileges of British citizens to Māori. “Māori are six times more likely than non-Māori  to end up in prison, and therefore six times more likely to be deprived of the right to vote.” He further explains that with New Zealand’s voting system incorporating Māori seats, the impact of denying votes may well have a significant influence on election outcomes.

If Māori are being denied a voice to society from behind prison gates, which voices are being heard within? Such issues were raised in an Al Jazeera documentary “Locked up Warriors”.[20] The programme sought answers to the problem of New Zealand having one of the highest rates of incarceration in the developed world. Some emphasis was placed on gang affiliation having a role in the lives of incarcerated young Māori men. Specifically, it was suggested that gangs provided a form of community that had been weakened over time. Forces of colonisation and urbanisation were attributed to the present situation. It is important, however to consider that statistics on gang membership are understandably uncertain and have been criticised as over-inflated in media-representation.[21]

The same programme introduced measures taken to reduce recidivism and aid reintegration with community life. Cultural activity programmes and Māori Focus Units were used as examples of progress in this area. Māori Focus Units, generally standalone 60-bed units, are intended to incorporate tikanga Māori values to reduce criminal motivation and re-offending rates.[22] Positive reviews from the Department of Corrections have cited the benefits of connection with local iwi and improved whānau relationships. “Participants reported development in tikanga Māori and strengthened cultural identity, and psychometric testing showed positive progressions in offenders’ thinking patterns.” If ‘psychometric testing’ sounds a little out of step in the series of measures, it probably should. The use of scientific methodology to assess individual progress cannot be said to truly align with a Whanau-centric approach. While there is a general positive response to the units, it is also considered that there is much work to be done. Stability can be threatened with short-term stays and the number of available spaces are limited

Henare O’Keefe, Hastings District Councillor voiced his hesitation that “a Māori concept cannot work within a European Infrastructure.”[23] Similarly, a strengthened cultural identity inside, may not be as supported on the outside. Former prisoner “Cookie” put it in his own words:

“You can sort of like brainwash yourself in there, but that’s got nothing to do with the world out here…I mean it’s alright to teach someone the words of a song and the actions of a song, but how long does that last? Just till the song’s finished, then what?”

It is with interest that we await the Waitangi Tribunal’s consideration of the current voting legislation. If New Zealand is to be tough on crime, it is the social determinants of crime that may make the biggest impact: addressing poverty, inequality and structural discrimination. Legislation that is tough on criminals is yet to demonstrate a marked difference on offending rates. For the most part prisoners are serving short term sentences, the importance of community connection and wider support for cultural identity cannot be overlooked.

[1] Concluding observations on the sixth periodic report of New Zealand CAT/C/NZL/CO/6 (2015).

[2] At 14.

[3] Statistics New Zealand “New Zealand’s prison population” <http://www.stats.govt.nz/browse_for_stats/snapshots-of-nz/yearbook/society/crime/corrections.aspx>.

[4] Statistics New Zealand 2013 Census Quickstats About Maori (2013) available from www.stats.govt.nz.

[5] The Equal Justice Project “Imprisoned and Disenfranchised” (13 May 2013) <http://equaljusticeproject.co.nz/2013/05/15/imprisoned-disenfranchised/>

[6] New Zealand Bill of Rights Act 1990, s 12.

[7] Parliament TV on Demand “Electoral (Disqualification of Sentenced Prisoners) Amendment Bill – Third Reading – Part 6” (7 December 2010) Youtube <https://www.youtube.com/watch?v=DPdTb4cUwXA>

[8] (8 December 2010) 669 NZPD 15961.

[9] (8 December 2010) 669 NZPD 15961.

[10]Andrew Geddis “Prisoner Voting and Rights Deliberation: How New Zealand’s Parliament Failed” (2011) 443 NZ L Rev 165.

[11] Statistics New Zealand “Annual Sentenced Prisoner Population for the latest Calendar Years (ANZSOC)” <http://nzdotstat.stats.govt.nz>.

[12] (8 December 2010) 669 NZPD 15961.

[13] Taylor v Attorney-General [2014] NZHC 1630.

[14] The New Zealand Centre for Human Rights Law, Policy and Practice “Prisoners Voting Rights and the future of the Bill of Rights” <http://www.humanrights.auckland.ac.nz/en/about/e-bulletins/recent-cases.html>.

[15] Taylor v Attorney-General [2014] NZHC 2225.

[16]Peter Calder “A bad man’s good idea on voting rights” The New Zealand Herald (online ed, 4 February 2015) <http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11396039>.

[17] Taylor v Attorney General [2015] NZHC 1706.

[18] Rachael Jones “Waitangi Tribunal to inquire in mid-2015 into prohibition on prisoner voting” (7 August 2014) Māori Law Review < http://maorilawreview.co.nz.ezproxy.auckland.ac.nz/2014/09/waitangi-tribunal-to-inquire-in-mid-2015-into-prohibition-on-prisoner-voting/>.

[19] Kim Workman “The Prisoner’s Right to Vote – enter Rumpole of the Bailey” (12 June 2014) Smart on Crime <http://blog.rethinking.org.nz/2014/06/the-prisoners-right-to-vote-enter.html>.

[20] Al Jazeera  “Locked Up Warriors” (8 November 2013) <http://www.aljazeera.com/programmes/101east/2013/11/locked-up-warriors-201311481133704146.html>.

[21] Jarrod Gilbert “Tolley’s gang figures way off” The New Zealand Herald (online ed, 5 August 2015) <http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11304251>.

[22] Human Rights Commission “Māori Focus Units” <https://www.hrc.co.nz/your-rights/social-equality/our-work/fair-go-all/maori-focus-units/>.

[23] Al Jazeera  above.

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