Home > The Body Politic > Democracy denied – Labour’s saddest failing

Democracy denied – Labour’s saddest failing

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Labour’s most tragic failing to date has largely flown under the media radar: to reinstate the right of prisoners to vote. Labour’s inaction is made worse in the knowledge that it would have taken little effort and very little cost to undertake.

In 2010, as part of it’s get-tough-on-crime rhetoric, National passed the Electoral (Disqualification of Sentenced Prisoners) Amendment Act. It’s intention was clear enough:

The bill proposes to remove the right of a person serving a term of imprisonment of less than three years to register as an elector.

Previously, the Electoral Act 1993 had disqualified prisoners from voting those “detained in a prison under a sentence of imprisonment for life, preventive detention or for a term of three years or more“.

The Act was first proposed by National MP, Paul Quinn. Mr Quinn was one of National’s few Maori MPs at the time, and was struggling to make a name for himself in Parliament. In both the 2008 and 2011 general elections he finished second in the Hutt Electorate to Labour’s Trevor Mallard. By 2011 he had dropped seven places on National’s Party List and did not make it back to Parliament as a List MP.

The irony of Mr Quinn’s sponsoring of the Electoral (Disqualification of Sentenced Prisoners) Amendment Bill should not be lost on anyone. As a Maori MP and Treaty negotiator for Ngati Awa, his Bill would target and disenfranchise a predominantly Maori prison population;

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Attorney General Chris Finlayson – one of National’s well-respected moderates and an uncommonly insightful member of Parliament – was scathing of Quinn’s Bill. In a report presented to the House, he attacked the Bill as “unjustifiably inconsistent”, “not rationally linked”, having “irrational inconsistencies”, “irrational and irregular”, and creating “irrational effects of the Bill … disproportionate to its objective”.

He pointed out several examples of irrational inconsistencies;

“The blanket ban on prisoner voting is both under and over inclusive. It is under inclusive because a prisoner convicted of a serious violent offence who serves a two and a half year sentence in prison between general elections will be able to vote. It is over inclusive because someone convicted and given a one-week sentence that coincided with a general election would be unable to vote. The provision does not impair the right to vote as minimally as reasonably possible as it disenfranchises in an irrational and irregular manner.”

Minister Finlayson concluded that “the blanket disenfranchisement of prisoners appears to be inconsistent with s 12 of the Bill of Rights Act and that it cannot be justified under s 5 of that Act“.

Writing in his regular on-line column, Gordon Campbell also pointed out bizarre contradictions inherent in Quinn’s Bill;

Hidden in the majority verdict though, is this gem of illogic : “The Electoral Enrolment Centre has proposed working with the Department of Corrections to develop a national procedure to encourage prisoners to re-enrol upon release from prison.” Got that? The centre-right faction on the select committee wants officialdom to devise a new bureaucratic programme to re-register prisoners all over again, once they’re out of jail. First, they want to treat prisoners as non-persons and deny them the vote – and then want to set up a nationwide programme to re-ignite the same motivation that they’ve just gratuitously chosen to dampen. If there was a prize for political stupidity and bureaucratic proliferation in the first term of the current government, this Bill would have to be a prime contender. Prime Minister John Key clearly needs to take heed of the verdict of his Attorney – General, and advise the National caucus to vote against this measure.

Quinn may have vanished from Parliament (and from most people’s memories), but the chilling legacy he left behind in that one piece of ill-considered legislation has caused on-going social harm.

Despite Minister Finlayson’s warning, National and ACT passed the legislation 63 votes to 58 against. The Maori Party and Peter Dunne – National’s coalition partners – voted with Labour, the Greens, and the Progressive Party (Jim Anderton).

Labour MPs were vociferous in their opposition to Quinn’s Bill.

Lianne Dalziel:

“We know why this bill is being introduced: it is called dog-whistle politics. There is nothing worse in this House than to see matters of substance raised in a debate such as this. I take the strongest possible exception to using an amendment to electoral law to argue this dog-whistle position to attack people who are in prison at a particular time.

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I say that getting marginalised people in our society on to the electoral roll is one of the hardest things that we have to confront when we try to sign up people during the election campaign. Every member of this House will know how much resource we put into the Electoral Commission to make sure that people are on the roll in the lead-up to both the local-body elections, which take place this year, and the general election, which takes place next year.”

Charles Chauvel:

“The Electoral (Disqualification of Convicted Prisoners) Amendment Bill is nothing more than the latest in a long line of dog-whistle attempts to make the Government, the National Party, and its ACT Party fellow traveller over there seem tough on crime. This House should be gravely concerned that some of its members can come in here and propose legislation for those reasons, without any regard for its practical implications. Those members would place political image above fairness, above the value our society places on the civic duty of voting, above the effectiveness of our electoral roll, and above prisoners’ reintegration into society upon release…

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This bill has no intention other than to make the Government look tough on crime.”

Chris Hipkins:

“This bill will disenfranchise them from society even further.

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We spend so much time getting people on to the electoral roll in the first place, and some of the people who are the most difficult to get on to the roll in the first place are the people who are disenfranchised from our community. We struggle to get the people who are more likely to go to prison on to the electoral roll in the first place, yet this bill removes them from the electoral roll. It is not justified. It will further marginalise them from our community.

Tough on crime rhetoric is the easy part. Dealing with the underlying social causes of criminal offending, the disenfranchisement from society, and the total feeling of anger that exists within many of the people in our prisons is something we have to think long and hard about. We do not do a good job of this, because the political rhetoric is too hard on any side of this political debate. It is very difficult to deal with this issue in a way that will look good on the news and will make people likely to vote for us. Yes, there are votes in being seen to be hard on criminals. There are very few votes, unfortunately, in dealing with the root causes of crime and criminal offending, because they are not easy and they do not fit on a bumper sticker.”

Clayton Cosgrove:

“… The truth about this bill, which every person who came before the select committee—including David Farrar, although he supported it—agreed on, is that it will do nothing to help victims. This bill will do nothing to stop recidivism. It will do nothing to stop reoffending, and there is no evidence that it will. This bill will do nothing to change prisoner behaviour. Every submitter bar the member Paul Quinn admitted that this bill was simply a political pamphlet.”

Grant Robertson:

“This kind of legislation is the simple stuff, the meaningless stuff. The hard work of the criminal justice area in trying to make sure that we rehabilitate people and reintegrate them into society is not what we hear from National. 

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The true test of being committed to democracy is to say that even if people have committed some of these crimes, we still fundamentally believe that they have a human right to vote. If we want people to rehabilitate and reintegrate into society, we need to give them a chance to be involved in society. Virtually every person who is covered by the extension of this law, the 2,000 or 3,000 people who are sentenced each year to less than 3 years in prison, will end up back in society. We are not talking here—though with the mistake that National has made, it almost is—about people sentenced to life imprisonment. That is already in the law. Every single one of the people to whom this extension applies will be back in society. What we should be doing is working out how we reintegrate those people into society and how we contribute to rehabilitation. Instead, we have petty, spiteful legislation that does nothing to make our communities safer.”

Carmel Sepuloni:

“I look at the Electoral (Disqualification of Convicted Prisoners) Amendment Bill and think that it is so incredibly trivial and insignificant. The bill will bring about no change, and no positive repercussions, for New Zealand society.

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The one question that I have to ask when I look at this bill, given that it is a law and order bill, which has gone through the Law and Order Committee, is whether this bill will act as a deterrent to crime. I think the answer is actually no. I cannot envisage any person who is incarcerated, or any person who is on the verge of committing a crime, thinking: “Oh, I had better not commit this burglary; otherwise I will go to prison and lose my right to vote!”. The reality is that for all of us in this House to vote is a right, and for many other people around the world it is an absolute privilege to have the right to vote. But I assume that many of the people who are incarcerated may not actually see voting as being one of the priorities in their lives. In fact, I wonder how many of those people who are incarcerated who actually exercise the right to vote have actually felt a sense of loss when they have been incarcerated and lost that right to vote. This bill seems rather insignificant and almost a complete waste of time in regard to what that member, Paul Quinn, was attempting to do.

When we look at whether it could act as a deterrent to crime, we see that obvious common-sense dictates that actually, no, it probably will not.”

Then-Maori Party MP,  Hone Harawira, was no less scathing of the Bill;

“Tēnā koe, Mr Assistant Speaker. Huri rauna kia ora tātou katoa e te Whare. This bill, the Electoral (Disqualification of Convicted Prisoners) Amendment Bill, to remove the right of anyone in jail to vote is a direct attack on the democratic freedoms of people we should be trying to help. It is an assault on the intelligence of ordinary New Zealanders. It is another in a raft of misbegotten, panicked pieces of legislation that are driving this country over the precipice into the mindless depths of right-wing insanity.”

Green MP, David Clendon, seemingly had to remind our elected representatives – especially those in government – that voting was core and fundamental to democracy;

“The right to vote, the commission said, is considered fundamental to representative democracies… It [the Electoral (Disqualification of Convicted Prisoners) Amendment Bill] is at odds with the concept of democracy.”

In 2014, “jailhouse lawyer”, Arthur Taylor, challenged the National government’s law in a Court of Law.

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In July 2015, the High Court found in Taylor’s favour. Justice Heath reasserted Attorney General Finlayson’s determination that banning prisoners from voting was  inconsistent with the Bill of Rights and unjustified;

“The purpose of a formal declaration is to draw to the attention of the New Zealand public that Parliament has enacted legislation inconsistent with a fundamental right.”

In 2017, the Court of Appeal also determined that the law was unfair, unjustified, and inconsistent with the Bill of Rights.

National refused point blank to repeal the law. Said Bill English;

“If they raise significant policy issues we’d look at them, but up until now we haven’t seen a reason to change the law.”

Then came the election last year and the National government was swept away. A Labour-led Coalition could finally undo a bad law.

Or so you would think.

On 9 November, after another victory by Arthur Taylor in the Supreme Court, Coalition Justice Minister, Andrew Little issued a response;

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Minister Little said;

“It’s not that much of a priority.”

It’s. Not. That. Much. Of. A. Priority.

Think about that for a moment: “It’s not that much of a priority.”

According to Minister Little, the very foundation of democracy – voting – is “not that much of a priority.”

Attempting to re-engage a marginalised sector of our society by encouraging civic responsibility is “not that much of a priority.”

In the year that is the 125th anniversary of women’s suffrage in New Zealand –

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– voting by a disenfranchised, disengaged section of our society is “not that much of a priority.”

Overturning a bad law “not that much of a priority.”

I sincerely hope that Minister Little did not understand the full implications and that he mis-spoke. Because when an elected representative declares that righting a wrong – such as citizens stripped of their vote – is “not that much of a priority”, they are demonstrating a callous disregard for our democratic traditions that defies understanding.

Clendon, Harawira, and others were correct to describe Quinn’s Bill as a direct attack on the democratic freedoms of people. The right to vote is the most basic cornerstone of a true, participatory democracy. Nothing else comes close to the critical importance of the universal franchise.

Only in countries where a notional facade of democracy exists in name only, is the right to vote regarded with similar cavalier disregard. In both Russia and the United States, vested interests have actively undermined participatory democracy. In China, voting is limited to one party. Britain is still locked in a feudal-era First Past the Post system.

When the National government’s own Attorney General – Chris Finlayson – described the removal of the right for prisoners to vote as “unjustifiably inconsistent with the electoral rights affirmed by s12 of the Bill of Rights Act“, then we are left with only one conclusion: it was bad law from the start.

Minister Little was completely and utterly wrong when he said it was “not that much of a priority.”

It should be the highest priority for any nation professing to be a participatory democracy.

If the former National government could abrogate workers rights by changing their status from employees to “contractors”, with an odious piece of legislation passed in just 48 hour from First Reading to Royal Assent – then it should not be an insurmountable task to abolish the Electoral (Disqualification of Sentenced Prisoners) Amendment Act before the house rises this year.

In fact, by next Friday would be good.

Minister Little, tear down this bad law.

Minister Little, do it now.

Make it a priority.

 

 

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References

Legislation: Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010

Ministry of Justice: Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Electoral (Disqualification of Convicted Prisoners) Amendment Bill

Parliament: Electoral (Disqualification of Sentenced Prisoners) Amendment Bill

Wikipedia: Paul Quinn

NZ Herald: Cross-claim endangers settlement

Department of Corrections: Prison facts and statistics – September 2011

Parliament: Electoral (Disqualification of Sentenced Prisoners) Amendment Bill — Third Reading

Parliament: Electoral (Disqualification of Convicted Prisoners) Amendment Bill — First Reading

Parliament: Parliament: Electoral (Disqualification of Convicted Prisoners) Amendment Bill — Second Reading

TVNZ: Jailed bush lawyer asks High Court for right to vote

Radio NZ: Prison vote law breaches human rights – judge

Mediaworks/Newshub:  No voting in prison ‘unfair’ – Court of Appeal

Radio NZ: Prisoners’ right to vote currently not a priority for Parliament – Little

Ministry for Culture & Heritage: Suffrage 125

Legislation: Employment Relations (Film Production Work) Amendment Act 2010 (aka “Hobbit Law”)

Acknowledgement

Scoop media: Martin Doyle Cartoon – Voting sucks

Additional

Radio NZ: Protest over prison voting ban

Other Blogs

The Daily Blog: Prisoner Rights Blogger wins for Human Rights

Green:  Prisoner voting ban needs to be repealed

The Green Blog: Prisoner voting disqualification and the Bill of Rights Act

Public Address: Fact-checking Parliament – more prisoners can vote than they think

Werewolf: Robbing the Vote

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It’s a measure of the times we live in that neither the media nor New Zealanders in general seem worried that parliament can ‘remove’ rights supposedly guaranteed under our Bill of Rights. Prisoners are themselves victims of a serious constitutional crime. Given our noble history of women’s suffrage, it’s amazing no women have spoken up on behalf of women prisoners.” – Martin Doyle, cartoonist, 29 January 2015

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This blogpost was first published on The Daily Blog on 25 November 2018.

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