In 2010, the National-led government banned prisoners from voting in a decision that has been repeatedly condemned by New Zealand’s Courts, academics and activists alike. Only after a decade and a continuous stream of evidence that the ban is undemocratic has the current Labour-led government decided to propose a change.
If passed, the new law will substantially improve prisoner voting rights by removing suspension for prisoners serving three years or less imprisonment (this was the pre-2010 law). Interestingly, however, current lawmakers have not treated this as a fundamental human rights issue and it was pushed back on the agenda for more than a year because, according to Justice Minister Andrew Little, it was “not that much of a priority.” Even if the law is passed, the National Party has indicated they would again reverse the law if victorious in the 2020 General Election. This suggests the battle for this fundamental right is far from over.
Banning prisoners from voting is a surprisingly common practice globally. It also does not generally spark the controversy it deserves because voting bans are viewed by many as a reasonable punishment for committing a crime worthy of imprisonment.
However, unlike other restrictions that prisoners face such as freedom of movement, voting bans are particularly significant because they remove the ability to participate in the democratic process. This perpetuates disenfranchisement between prisoners and the rest of society in a manner that is illogical, often racist and inconsistent with human rights.
The New Zealand experience has shown all three of these things to be true. In 2018, the Supreme Court upheld a “declaration of inconsistency” that a ban on prisoner voting breaches the Bill of Rights Act.
This decision came shortly after a scathing report by the Waitangi Tribunal, a permanent commission of inquiry which investigates claims by New Zealand’s indigenous Māori against Crown injustices, found Māori were 11.4 times more likely to be removed from the electoral roll under a blanket ban than non-Māori due to a staggering over-representation in the prison system.
Not only then are prisoner rights supposed to be protected by the democratic and civil rights clauses in New Zealand’s Bill of Rights, but the overwhelming number of Māori losing these rights compared to non-Māori compounds the problem significantly because it shows severe inequity of prison system outcomes. While the Courts nor the Tribunal have the power to overturn legislation, they have laid out the absurdity of the prisoner voting ban clearly.
It is now on the government to confront the underlying issues of the ban while implementing the new law, rather than simply stating that unsuspending a majority of prisoners is better than the status quo in an election year.
At the very least there needs to be recognition that the ban is at direct odds with fundamental democratic principles and human rights. It is only when all members of society are equal and free to participate in a democracy can deeper issues in the justice system be addressed. If there is nobody to speak for prisoners’ rights we risk encouraging a fragmented political system and a fragmented society.