Thursday, 12 June 2014

The Prisoner’s Right to Vote – enter Rumpole of the Bailey

 by Kim Workman

I have a great deal of sympathy for senior Corrections managers in their efforts to run a  complex and large organisation and at the same time deal fairly with the many complaints from prisoners.  Amongst that group are a small number of ‘prison lawyers ‘ and vexatious  litigants, who occupied an inordinate amount of management time, usually with no productive or positive outcome.  In my time as Head of Prisons, I was sorely tested at times, to discharge that responsibility in a fair and patient way. 

It must be a great more difficult now.  None of the people I recall would have come anywhere close to Arthur William Taylor, once described by Commissioner Mike Bush, as a “criminal with no social ormoral conscience who is an absolute burden on the country".   Those people that know Taylor absolutely agree.  
Taylor, in his role self- appointed role as ‘prison lawyer’ brings to mind the TV character of years gone by – Rumpole of the Bailey .   Rumple loved the courtroom, and the simple pleasure of defending judicial principle, or his clients, most of whom were minor villains.  Taylor stands apart from other  ‘prison lawyers’ that I have known, in that he is frequently  successful.  He is an absolute thorn in the establishment’s side.

Arthur Taylor  seems to have an unerring ability to select issues for which there is compelling argument.  In his latest foray, he has once again, chosen well.  Taylor recently appeared via video at the High Court, in Auckland to argue that the legislation which prevents prisoners from voting is a breach of human rights legislation and the Treaty of Waitangi.  The Attorney-General and the chief executive of the Department of Corrections are seeking to have the application struck out, saying it's an abuse of process.  The Attorney General’s lawyer  says that the court does not have the jurisdiction to say Parliament acted unlawfully when it created the act.

The Legal Argument Against Refusing Prisoners the Right to Vote 

Cast your minds back to 2010.  Paul Quinn, a new MP , introduced a private member’s bill,  the  Electoral (Disqualification of Convicted Prisoners) Amendment Bill to stop prisoners from exercising their right to vote while in prison.  The Attorney General, in a report to the House of Representatives, considered that the Bill was unjustifiably inconsistent with the electoral rights affirmed by s 12 of the Bill of Rights Act, which  affirms article 25 of the International Covenant on Civil and Political Rights, to which New Zealand is a signatory.  Article 25 recognises the right of citizens to vote in genuine periodic elections without unreasonable restrictions.
The Attorney General cited a 1993 High Court decision R v Bennett (1) which found that there was a clear conflict between the blanket ban on prisoner voting in place at the time and the Bill of Rights Act. He also pointed out that both the Supreme Court of Canada(2) and the European Court of Human Rights, (3) have held that a blanket ban on prisoner voting is inconsistent with electoral rights. Fifty three submitters objected to the Bill, including the NZ Law Society, and the Human Rights Commission.

Most social commentators were convinced that the Bill would die at the Select Committee.  The Select Committee however, recommended adoption of the Bill with some minor changes.  Nevertheless, its report to the House of Representatives, included very strong minority objections from both Labour and the Greens.  They noted that there was no public demand for the Bill, no public debate, and no evidence that it would reduce crime or recidivism.  It was described as overly punitive and irrational, with the potential to further marginalise those who already constitute an underclass. 

What was the Purpose  of the Legislation?

The Bill was introduced as a measure to prevent serious offenders from voting.  The existing legislation at the time, prevented  prisoners serving more than three years, a life sentence, or preventive detention from voting – this bill introduced a blanket ban, based on the argument that all people who go to prison are serious recidivist offenders.  As the Attorney General pointed out in his report, not all those in prison are serious offenders.  Around 70% of all people in prison today, will be released within the next six months – most of them are in prison for property offences, drug and alcohol related offences, and low level crime – and most will stop offending by the time they are thirty years of age. 

The idea that it prevents serious criminals from voting, is a blatant overstatement, and cannot be justified by the evidence.  What then is its purpose?  It was simply a ‘get tough’ exercise – an expression  of hatred, exclusion and stigmatisation toward  those who offend against the law.  It was about the government’s intention to purchase punishment in yet another form.  It had nothing at all to do with 
reducing crime. 

Response to the Legislation

The renamed Electoral (Disqualification of Sentenced Prisoners)Amendment Act 2010 was subsequently passed.  The social media commentator and legal expert Andrew Geddis  blogged twice on the issue, setting out the issues well in “Ghosts of the Civil Dead”.  He returned to the issue in a later blog,  “J’accuse”, and summed up his view in one sentence;

This proposal is downright wrong in its intent, outright stupid in its design and (if finally enacted) would be such an indelible stain on the parliamentary law-making process as to call into question that institution’s legitimacy to act as supreme lawmaker for our society.
The Attorney General’s Office, a major opponent to the legislation, now have the unenviable task of arguing in the High Court, that Arthur Taylor’s case should not proceed, not because he is wrong, but because it is “an abuse of process”.  The lawyer for the Attorney General says there is  uncertainty as to whether the court had the power to say Parliament acted unlawfully when it passed the law, and that judges can comment on laws, but making a declaration would create a conflict between the courts and Parliament.

And so it should.  As Andrew Geddis comments, there comes a time when the quality of parliamentary lawmaking needs to be vigourously challenged.

A Breach of the Treaty of Waitangi? 

All the debate of the day however, failed to consider the second leg of Taylor’s case i.e. that the legislation breaches the Treaty of Waitangi.  I do not have access to the detail of his argument, but I assume that he is referring to Article Three, which extends to Māori  all the rights and privileges of British Subjects.

The argument would I think, take the line that  by denying prisoners the right to vote, Māori   are not only denied the right to vote, but are disproportionately disadvantaged.  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.  The graph below tells us two things.  First, that  a significant number or people stop going to prison by the time they turn 30.  Second, that  New Zealand’s imprisonment rate is very high compared to similar western nations – around 194 per 100,000.  However, Maori are imprisoned at a rate of around 700 per 100,000, just under the imprisonment rate in the USA.  When imprisonment rates of an ethnic group reach that level, then the law operates  to shift inequality into the political process, causing the disproportionate denial of the right to vote to Maori, and to a lesser extent Pacific peoples. 

The US of course, has taken disenfranchisement against prisoners and people of colour to its extreme.  Only the States of Maine and Utah allow prisoners the vote. 

This issue has been the subject of litigation in the United States.  In the case Farrakhan v. Gregoire evidence was produced to show that the disenfranchisement of sentenced prisoners in Washington State, resulted in an astonishing 24% of all black men in Washington State and 15% of the entire Black population, being denied their voting rights.

What is the Impact of Disenfranchising Māori Prisoners?

What is the potential Impact of denying the 4,300  Māori prisoners a vote at election time?  While most would argue that the impact will be negligible – New Zealand has an unique parliamentary arrangement.  There are seven Māori electorates, which are the preserve of Māori voters, and two political parties, Māori Party and Mana-Internet Party, which attract the Māori voter.  Potentially, there could be a close contest for the Taitokerau Maori seat, (which covers Northland and West  Auckland), between Mana’s Hone Harawira and  the Labour Party ‘s  Kelvin Davis.  Around 22% of Māori in prison identify as coming from Ngapuhi and Te Taitokerau, and a one quarter of all Maori come from the Auckland region. It is possible that the government’s decision to deny Māori prisoners voting rights, could swing the result in either direction.  If that happens, is there a case for claiming that the result is unlawful because Māori voters in the area have been denied a basic human right? 
Will the  Denial of Prisoner’s Rights Reduce Crime?  
Finally, let's consider whether this legislation will reduce crime.  The Smart on Crime ‘brand’ is ‘based on two simple ideas.  First, it is a given that all criminal justice policies and strategies  should  observe the basic human rights guaranteed under the NZ Bill of Rights and international covenants.

Second, it's about supporting policies, strategies, practices and processes which reduce crime victims and social harm in the community. The Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010 absolutely fails on both accounts.  It breaches the Bill of Rights, and will have absolutely no impact on crime reduction.  

Connecting Prisoners to Society

In a recent article recently, the Australian Business Insider   commented on a Vera Institute report  comparing European and American prisons. The Vera report gave six reasons why European prisons were more effective.  One of the reasons was described as promoting ‘A Connection To Society’.  In Northern Europe and Scandinavia, prisoners are expected to work toward their reintegration from the first day they enter prison.  In Germany and the Netherlands, prisoners get to keep many of their rights while they’re behind bars — like the right to vote and to receive some welfare benefits.

Prisoners regularly get a chance to spend time away from prison. Some prisoners in the Netherlands “report” to prison during the week and then go home and spend the weekends with their families so they can maintain those relationships.  In the U.S. as in New Zealand,   family visits usually happen within the confines of a visiting room.

If we are serious about prisoner reintegration, and reducing crime, we need policies and legislation which encourages inclusion in society, rather than legislation which aims to stigmatise and stereotype.  

In the meantime, let's wait to see what Rumpole of the Bailey comes up with.  


(1)  (1993) 2 HRNZ 358 (HC)
(2) Sauvé v. Canada (Attorney General) [1993] 2 SCR 438
(3) Hirst v the United Kingdom (No 2) (6 October 2005) ECHR 74025/01.

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