The National and Act Party members of the Law and Order select committee not only have no regard for basic individual rights, but they want to give William Bell, Graeme Burton and Clayton Weatherston the vote. They are not only moral pygmies, but they are really, really dumb.

I have long been a big fan of New Zealand's commitment to parliamentary sovereignty, whereby we as a society leave the last word on our laws to the elected representatives of the people. Students in my Public Law class roll their eyes with the frequency and enthusiasm with which I refer to this basic principle of our constitution.

But events of the past week have me seriously reconsidering my position. There's the debacle of the Canterbury Earthquake Response and Recovery Act, which I already have written about here and here. (I'll also be speaking about it on this week's edition of TVNZ 7's "The Court Report" - tune in on Thursday at 9:35!)

Now Parliament's Law and Order committee has, by a majority consisting of National and Act members, recommended the enactment of Paul Quinn's Electoral (Disqualification of Convicted Prisoners) Amendment Bill - although they would change its name to the Electoral (Disqualification of Sentenced Prisoners) Amendment Bill.

I've posted before about this matter. That post was fairly moderate in tone, principally because I thought the proposal was so manifestly wrongheaded that, while National MPs obviously felt they had to support their colleague's proposal through its first reading, it quietly would get canned in the select committee process. Turns out I was wrong, so now let me say what I really think.

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 lawmaking process as to call into question that institution's legitimacy to act as supreme lawmaker for our society.

I understand this is a pretty major accusation to level and needs a great deal of substance to back it up, so this post is going to be pretty lengthy. No apologies for that - the issue deserves serious attention and analysis ... as opposed to the less than 2 - less than 2! - pages devoted to it by the majority members of the select committee in their report back to the House.

Paul Quinn's proposal is pretty simple. At the moment, prisoners who are sentenced to jail terms of more than 3 years cannot vote. This has been the case since 1993. Before then, the rule was that no imprisoned person at all could vote. Paul Quinn wants to turn the clock back to those good old days, on the basis that anyone who has done something bad enough to get put in jail does not (for some indeterminate reason) deserve to vote

The majority of the Law and Order select committee obviously agrees with him. Why? I have no idea, because the majority says nothing at all about why the basic principle behind Mr Quinn's proposal is the right one to adopt.

Let me reiterate that. National and Act members of the Committee want to strip literally thousands of people of one of the most basic rights New Zealanders' - every adult New Zealander - possess, and they say nothing at all about the reasons for doing so.

What is more, their endorsement flies in the face of the Attorney-General's advice that this measure is inconsistent with the New Zealand Bill of Rights Act, which guarantees all New Zealand citizens the right to vote.  It flies in the face of rulings by the UN Human Rights Committee, the Supreme Court of Canada, the European Court of Human Rights, the High Court of South Africa, and the High Court of Australia; all of which have decided that disenfranchising all prisoners is an unjustifiable breach of individual rights. And it flies in the face of 50-odd submissions - including ones from the Law Society and Human Rights Commission - saying it is a terrible, terrible idea; as opposed to only two submitters supporting it ... one of whom was from Paul Quinn himself.

(As an aside, last semester I required students in my Law and the Democratic Process class to write a submission on this bill, which I then forwarded on to the Committee. All of the 21 students who analysed the proposal independently recommended that it not proceed. Yet the majority members of the Law and Order committee don't even have the basic courtesy to say why they have completely ignored the hard work and considered views shown by these submitters. And then MPs wonder why it is that members of the public - especially younger members - are so apathetic about the lawmaking process!)

I suspect the reason why the Committee majority have nothing to say is that there really isn't any sort of reasoned answer to the case against Mr Quinn's proposal. The most that those who support it can come up with is that it is somehow "less arbitrary" to disqualify all prisoners than just those sentenced to more than 3 years in jail, it will make life easier for electoral and prison officials, and that prisoners are bad people who just shouldn't get the same say as you and me.

Let's put to one side the question of exactly how it is "less arbitrary" to disenfranchise a criminal who doesn't have a suitable place to serve home detention in or the resources to pay a fine, thus gets sentenced to imprisonment instead, while continuing to allow a criminal who does have these resources to vote. And let's also pass over the somewhat cavalier attitude to individual rights demonstrated by the claim that mere administrative ease justifies taking them away. What about the idea that criminals are bad people who shouldn't get a say on who governs our society?

Obviously, I think this is a flawed argument - one that flows out of knee-jerk "get tough on crime" rhetoric rather than any sort of reasoned view of penal policy or proper democratic process. But lets say you are the kind of person who takes it seriously. Clearly, three people who you believe shouldn't get to have a vote are William Bell, Graeme Burton and Clayton Weatherston.

Well, guess what? If the Law and Order committee's recommendations to the House get passed into law, these three guys - as well as any other murderer, rapist or violent criminal currently serving a sentence of more than 3 years - will get to vote at the next election.

That's because the committee suggests completely repealing the current disqualification provision in the Electoral Act 1993, s.81(1)(d) and replacing it with this provision:

"a person who is detained in a prison pursuant to a sentence of imprisonment imposed after the commencement of the Electoral (Disqualification of Sentenced 15 Prisoners) Amendment Act 2010:”

See the problem? It removes the legislative provision that disqualifies people presently serving lengthy prison sentences and instead only disqualifies people sentenced to prison after the bill is enacted into law. So, there would be nothing in law to stop anyone imprisoned at the time the bill is enacted from applying to be registered to vote, and consequently casting a vote at the 2011 election.

That's why I called the majority members of the Law and Order committee "dumb". They obviously don't understand what the effect of their recommended amendments would be. How could they have got it so wrong?

Well, the answer lies in yet another abuse of parliamentary process. You might think that a proposed piece of legislation that will amend New Zealand's electoral laws naturally would get considered by Parliament's all-party Electoral Legislation Committee, rather than its Law and Order committee. And you'd think that whatever committee considers the matter would receive support from the Ministry of Justice, which has oversight of New Zealand's electoral laws, rather than the Department of Corrections, which deals with keeping prisoners in jail.

But if you did think that, then you fail to understand how a government can completely undermine the way lawmaking takes place in Parliament. Rather than ask a committee where parties likely to be hostile to the measure have a majority membership to examine its merits, or a government department likely to draw attention to the measure's myriad flaws to advise the committee, the National Government chose the easier path.

Completely cynical, but I guess that's politics. However, the net result is that the Law and Order committee has just produced a completely nonsensical report, largely because didn't get any help from anyone who knows how our electoral laws actually work. So now, if the Government really wants to pass this measure into law, it will have to use a supplementary order paper to undo the total mess its own MPs have created.

If the matter wasn't so important, it would be funny. But we're dealing with fundamental democratic rights here, so the fact this sort of complete cock-up happened reveals a disgraceful lack of care on the part of our lawmakers.

Given the past bahaviour of Sandra Goudie, the Law and Order committee's chair, it perhaps isn't so surprising that this happened under her watch. She just doesn't seem to understand what Parliament is for. But here's my personal challenge to National's MPs who do have some understanding of and commitment to good lawmaking values - and in particular to Minister of Justice Simon Power and Attorney-General Chris Finlayson.

You know that this bill is a really, really bad idea. You know that a properly deliberative legislative body should not make it a part of our nation's laws, no matter the level of public disquiet about crime and criminals. You know that the right thing to do is stop it in its tracks.

Now - will you do the right thing? Because if you won't, you will be critically undermining the basic claim of Parliament to be trusted as our nation's final determinor of what the law should be.

Oh - one last thing to note. The Act Party member of the Law and Order committee and a part of its majority recommendation to the House was one David Garrett, MP. Had Mr Garrett not been the recipient of a fair amount of judicial leniency in 2005 and instead been sentenced to 17 months imprisonment for his passport fraud, and had this bill been law at the time, he would have not been able to vote at the 2006 election.

Just sayin'.

[Update: I've heard through the grapevine that Corrections are claiming I am wrong in my analysis, and that the disqualification would continue to apply to presently disqualified prisoners by virtue of the Acts Interpretation Act 1999, s.19(1): "The repeal of an enactment does not affect a liability to a penalty for an offence or for a breach of an enactment committed before the repeal." I think they are wrong about this.

For one thing, the disqualification from voting is not itself a "penalty" - it's the consequence of a penalty being imposed. So, if you receive a sentence of 3 or more years in jail, the collateral consequence is that you cannot enrol to vote. But that collateral consequence can be removed from existing prisoners simply by repealing the disqualification - otherwise Parliament, if it wanted to enfranchise all prisoners, would not only have to repeal s80(1)(d), but replace it with a section saying "all prisoners can vote".

And that makes no sense when you consider how the Electoral Act 1993 is structured. Under it, all adult NZers (and permanent residents) are eligible to be enrolled. Section 80 then disqualifies some of these people. But provided section 80 does not apply, and provided the right paperwork is filled out, then if the registrar for electors of each electoral district "is satisfied that any applicant for registration as an elector ... is qualified to be registered, he or she shall forthwith enter the name of the applicant on the roll."

So here's my question. If the Bill as recommended by the Committee is enacted and (say) Clayton Weatherston applies to register as an elector - which he can do from his prison cell - on what basis can a registrar of electors refuse to enrol him? Can't be s.80(1)(d), as repealed and replaced. So what legal basis is there for saying there is a residual disqualification that continues to apply ... especially once you factor in the NZBORA ss.12(a) and 6!]

Comments (52)

by Will de Cleene on September 19, 2010
Will de Cleene

as opposed to only two submitters supporting it ... one of whom was from Paul Quinn himself.

Oh, don't tell me who the other one was from. Let me guess. What is the Sensible Sentencing Trust?

by Andrew Geddis on September 19, 2010
Andrew Geddis

No. David Farrar, of Kiwiblog fame/infamy. A man whose views I respect, but this isn't his best work.

by David Farrar on September 19, 2010
David Farrar

I'm the guilty other party. In my defence my posiion is that the law should be either all prisoners vote, or no prisoners vote, as any diiding line after x years is extremely arbitrary. I go for the latter position.

Anyway wanted to congratulate Andrew on his post, especially exposing the flaw in the bill which would restore the vote to all current prisoners. I will highlight this tomorrow, and also agree with him that not stating any reasons in favour is also bad.

by Phil Sage on September 19, 2010
Phil Sage

You obviously believe the right to vote is more important than the right to liberty.  Why?

by Andrew Geddis on September 19, 2010
Andrew Geddis

Phil,

I'm actually not much of a fan of the present approach to prisoners' right to liberty, in that I think NZ incarcerates too many people. But accepting that there will always be some people put in jail, the removal of a prisoner's right to liberty is justified on the basis of community protection (some people are such a danger to the community that they need removed from it for a period) as well as punative reasons (some acts require a person go to jail so that society's thirst for vengence is sated and the guilty party suffer a consequence for their wrongdoing).

There is no equivalent "community protection" rationale for taking the right to vote away, and the "punish wrongdoers" justification is weak (does doing this on top of the deprivation of physical liberty really disincentivise criminal behaviour or appreciably add to the burden of imprisonment) as well as over-inclusive (if this right can be taken away to additionally "punish wrongdoers", why not the right to practice religion, or the right to be free from torture?)

In a nutshell, then, it's not a matter of whether the right to vote is "more important" than the right to liberty - rather, it's a matter of whether there are justifications to limit one that do not apply to the other. Remember - no adult NZ citizen has to argue why they should be allowed to vote. Instead, the State must demonstrably justify in a free and democratic society why the citizen should not be allowed to vote.

by Will de Cleene on September 19, 2010
Will de Cleene

So, not even the SST was concerned enough to write in support of Quinn's bill.

A 3 year limit makes sense as it is the equivalent of one electoral cycle. Removing the right to vote for shorter sentences, the majority of the prison muster, makes much less sense. Unless you're trying to interrupt their enrolment hoping that they won't rejoin the roll after the clink, that is. It's the only motive I can see from this criminal bill.

If it's such a clear cut thing, David, why not remove the right to vote from those under arrest as well?

by Andrew Geddis on September 19, 2010
Andrew Geddis

"So, not even the SST was concerned enough to write in support of Quinn's bill."

A more cynical man than myself might wonder if a submission was  thought necessary, what with them effectively having a member on the Committee. Perhaps now David Garrett has moved on, they'll feel the need to put pen to paper ...

by Graeme Edgeler on September 19, 2010
Graeme Edgeler

how it is "less arbitrary" to disenfranchise a criminal who doesn't have a suitable place to serve home detention in or the resources to pay a fine, thus gets sentenced to imprisonment instead, while continuing to allow a criminal who does have these resources to vote?

Are you able to point me to an instance of a person being unable to pay a fine so being sentenced to a prison term instead? Because that seems incredibly unlikely. Receiving a community-based sentence in lieu of a (considered less severe) fine? Sure. But imprisonment?

I don't suppose I can rule it out under some form of sentencing law we had a few decades ago, but it seems incredibly unlikely under our current laws.

by Phil Sage on September 20, 2010
Phil Sage

Andrew - I view prison as removing a citizen from the right to participate in society.  For society's protection and for punishment.  Lets not go off thread by embarking on a discussion of what level is right or wrong.

The vote should not be available to anyone sentenced to and in prison. IIRC they are also not entitled to state benefits.

Their basic human rights have not changed so your reference to torture is unwarranted.

So eliminating the right to vote while in prison gives voting a value and is entirely consistent with the point of prison.

Will - Those under arrest have not been found guilty under a court of law.  They remain innocent until proven guilty so it is quite consistent not to take away a right to vote for those merely under arrest

 

by stuart munro on September 20, 2010
stuart munro

@Phil, Voting is not a state benefit. Voting is the act that legitimises states. A state that disenfrachises is choosing to be less legitimate.

Removing the vote from prisoners is removing their capacity to assent to the judicial authority under which they reside. It obliges them to demonstrate dissent by other means.

by Christiaan on September 20, 2010
Christiaan

The New Zealand Bill of Rights Act protects every NZ citizen's right to vote. Why are we even having this discussion unless someone is proposing to amend the Bill of Rights?

The question we should be asking is, why is any NZ citizen being disenfranchised in the first place? NZ citizens who haven't been in New Zealand in the past three years? NZ citizens who have been sentenced to more than 3 years in jail?

These are violations of the NZ Bill of Rights, article 12a.

The whole purpose of a Bill of rights is to protect our most important rights against infringement by the government and yet here they are infringing them and debating further infringements.

by Andrew Geddis on September 20, 2010
Andrew Geddis

Graeme,

Have a look at the Crimes Act 1961, s.19D and 19E.

Phil,

I think viewing prisoners as being "the civil dead" - placed completely outside of the society in which they are incarcerated - is a terrible idea. Putting aside the fact that prisoners remain human beings, and that there are some things human beings can claim just by virtue of being human, there's the small matter of what results we will see from taking our worst behaved members, shoving them into boxes, then telling them "you aren't a part of us, and we want nothing to do with you". Isn't this just a recipe for creating future victims?

I also wonder how far you'd take your own view. Should prisoners be permitted to write letters to the editor? Should prisoners be permitted to watch the news? Should prisoners be permitted to discuss politics amongst each other? Or would it be legitimate to make prison rules proscribing all of these activities?

Christiaan,

Yes, there is a prima facie breach of s.12(a). The question is whether this can be "demonstrably justified in a free and democratic society", as per s.5. Note that the onus of showing this is on those who would remove the right - such as the majority on the Law and Order committee. They utterly failed to do so.

by Kyle Matthews on September 20, 2010
Kyle Matthews

Nicely slammed Andrew.

A further cynic would suggest that people in prison are less likely than the general population to vote Nationa/Act, so there are minor electoral benefits to be gained from denying several thousand of them the right to vote. I'm not sure what the voting turnout is in prison, but given that they're all stuck there with nothing to do, it might be quite high.

by Andrew Geddis on September 20, 2010
Andrew Geddis

Kyle,

The more pertinent result is that once a prisoner is knocked off the electoral roll, they must re-enrol upon their release from prison in order to be eligible to vote in future elections. Given prison demographics (over-representation of the poor, Maori and Pacifica peoples), and the fact that these groups are notoriously hard to enroll in the first place, this measure may have cumulative effects over time.

However, I suspect this was just a happy extra cherry on the top for the Committee majority, rather than a primary motivation for the policy.

by Mr Magoo on September 20, 2010
Mr Magoo

Phil:

Then your view on what prisoners are and how they should be treated is a completely different one from the way it works or is even proposed to work in the future.

What next? A chain gang?

by Phil Sage on September 20, 2010
Phil Sage

Stuart - by your logic everyone in New Zealand at the time of an election should be entitled to vote.  Perhaps we should even give people in other states the right to vote on what is best for New Zealand.  Either that or only citizens should be able to vote in any election, thereby disenfranchising permanent residents.  Or perhaps not.

New arrivals in the country are not entitled to vote but may certainly be "entitled" to go to prison.

You make the best argument so far but it does not stand up.

Andrew - Not dead, just temporarily excluded from society through a court of law.  I say again to you and those who disagree, do you view liberty as less important than a vote.  I view liberty as more serious and thus see it as consistent that the removal of the right to liberty to vote for your rulers should consistently be constrained.

The right to free speech is not and never should be constrained.  The letter to the  editor may be a plea for mercy or may be a plea to change the law to right a moral injustice.  That right, like the right not to be tortured should not be constrained.  The purpose of prison is to remove the individual from society, not to stop them being able to communicate.

Kyle - you belong on kiwiblog or the standard.

by Mark Wilson on September 20, 2010
Mark Wilson

Sure Mr Geddis - you are smarter than John Key ("really really dumb") despite the overwhelming evidence to the contrary - yeah right!

And because the Government disagrees with you on the rights of criminals that destroys the Goverment's right to govern?

You really need to get over yourself.

by Andrew Geddis on September 20, 2010
Andrew Geddis

Phil,

All due respect, but you seem not to be understanding my responses to your comments. It is not - not - a question of whether liberty or voting is a "more important" right. It is a question of whether there exist good reasons to restrain the liberty of some criminals by imprisoning them, versus whether there are good reasons to remove the right of imprisoned persons to vote. I have given reasons why we imprison. I have yet to hear your reasons for removing the vote, other than "they're in jail so don't deserve it". Bottom line - it's up to you to show why prisoners should have this fundamental human right (see NZBORA, s.12(a)) stripped from them, not up to me to say why they should have it.

Mark,

Answering in kind, you are a moron. John Key was not a member of the Law and Order committee, nor is the bill official National policy - it's a members bill. So your invocation of his name is completely irrelevant to this topic. Second, if you really think that the amended bill's consequence of allowing William Bell et al to vote, but not allow any future prisoners to vote, is not a "really, really dumb" one - the context in which I made that comment - well, like I said, you are a moron.

by Mark Wilson on September 20, 2010
Mark Wilson

Andrew,

Dear oh dear.

Beauty of being the author of a blog is the power to exercise editorial control over all aspects of it ... so you're buying into a battle you can't win, Mark.

John Key has said the government will support the bill. Really? Where? Thought not. So according to you that makes him "really really dumb". Yes. If he really supports the bill in this form, he is "really, really dumb". But he won't. So end of this little tale.

You would be the first to complain if the government introduced retrospective legislation which better academics than you have always held is very poor law and unfair. Because it is. Your point being ... that the only way to disenfranchise future prisoners is to enfranchise all present prisoners? Oh dear, indeed!

No wonder Otago University keeps falling down the world rankings if you are an example of it's intellectual firepower. And that's Mark's sign off ... we won't be hearing from him again on this thread.

 

by Greg Dawson on September 20, 2010
Greg Dawson

That was a beautiful thing.

 

by Justin Maloney on September 20, 2010
Justin Maloney

If prison is removal from society, effectively a modern form of banishment, then removing the right to vote is arguably reasonable. How can someone who is not part of the society vote? Can a foreign national who does not live here vote?

So what we are saying is if you go to prison, for any length of time, you are no longer a citizen on New Zealand. You are not part of our society. You are not entitled to the rights, protections or freedoms citizens are entitled to. We will house you and feed you but you are not ours. This is quite a jump from the normal thinking that prison is the removal of certain liberties, either as a deterrence or means of correction.

When you think about it like this you see how torture could suddenly becomes 'justified'. Its not that far removed from rationale in Guantanamo Bay. Perhaps this removal of all rights for anyone in prison is what is being pushed for here. Some within the SST would like this I am sure, others are much more moderate.

However, even if you agree with this for the rapists and murderers, the fact you go to prison is not a good marker for whether you have committed a serious enough a crime to be removed from society. Prison is, in many cases, only one option open to the sentencing judge. How is it fair the guy who does a one month stint for dodging taxes loses the right to vote, yet a guy who embezzles $250k from his employer and gets a community sentence doesn't? (these are two real examples using people I know of)

In particular short sentences are often given to the poorer and less educated, where the judge has no other reasonable option. All of a sudden this Bill starts looking quite discriminatory. This is why the 3 year limit was there. It was to catch the worst offenders and 'remove' them from society.

If you take the approach that punishment is justified in terms of correction then this Bill doesn't make any sense at all.

Removing the right to vote from any citizen, a prerequisite of legitimacy of Government, has to be very strongly justified. Just because someone disagrees with, or breaks, a law it does not mean you should not have a right to vote to have it changed.

None of this addresses the injustice that occurs due to the fact that when you are sentenced has a direct bearing on the size of your punishment. Someone who gets a 3 month stint 2 months before the election loses the right to have a say in who will govern them. Someone who gets a 3 months stint the day after the election continues to keep their right to have a say.

I could perhaps sit here and argue for the current law (3 years minimum sentence), not very well I admit, but I could argue it. I cannot see how removing any threshold makes sense on any level other than administrative ease. That's a pretty poor justification to remove a citizens right in my book.

by Graeme Edgeler on September 20, 2010
Graeme Edgeler

The more pertinent result is that once a prisoner is knocked off the electoral roll, they must re-enrol upon their release from prison in order to be eligible to vote.

For many prisoners - even short-term ones, this will already be the case. The EEC will send them one of their periodic letters to their address of enrolment and it will be returned as the person no-longer lives there.

The solution, of course, is to get prisoners to sign an enrolment form as they are leaving prison, and as many prisoners will be leaving prison to live at a different address from the one they were living at when they went in (probation may even require it), this would be a good idea irrespective of this bill.

Have a look at the Crimes Act 1961, s.19D and 19E.

I am aware that there is a power, but:

1. It cannot be used in respect of fine only offences.

2. In respect of imprisonable offences, the Sentencing Act (at least by analogy) would require community-based sentences to be imposed first.

In essence, I dispute that this power is used to imprison fine-defaulters all that often. But we shouldn't keep discussing it in ignorance, as we should have a definitive answer some time in the next 20 working days.

by Mark Wilson on September 20, 2010
Mark Wilson

Like I say Mark - your commentating privileges are revoked. Think of it as "the will of the people", if it makes you feel better.

by James Francis on September 20, 2010
James Francis

Oh, fuck it.

Mark, you're a moron AND a bullying idiot.

'Nuff said on this matter ... let's try and raise the tone back up to the usual Pundit standards, thanks.

by stuart munro on September 20, 2010
stuart munro

@ Phil

Stuart - by your logic everyone in New Zealand at the time of an election should be entitled to vote.

By no means - the representatives are acountable to their polity, and the state is the unit of political accountability - so that transients and temporary residents must not vote. A greyish area develops for longterm temporary and intending permanents, but this need not be problematic - given the trivial numbers concerned almost any simple set of rules will handle it.

New arrivals in the country are not entitled to vote but may certainly be "entitled" to go to prison.

Or be deported. But this has no relevance to disenfranchising.

Intruding foreigners into the argument about disenfranchising prisoners does not strengthen your position. You may need to consider the declining level of democratic participation worldwide - practically all states are rapidly losing legitimacy.

The only good argument for disenfranchising prisoners is the natural law argument for murder. Traditionally, capital punishment was considered the only equivalent response to murder, the only thing that might redress the balance. Equally, killing stifles the victim's political voice, and so a murder might appropriately lose their voice in turn - in this case without the problematic encounter with Rousseau's argument about states conspiring against the lives of their citizens.

I am not sure I would advocate disenfranchising murderers however. Criminality marks a lack of mature social and political interaction. Although our current representatives are predominantly scoundrels, exemplifying none of the human virtues and far too many of the vices, in principle, following and participating in political discourse should constitute part of the criminal's path to reengaging with society.

Moreover, residing as they do at the bottom of the social cliff, their perspective is valuable: they are acutely aware of the political failings of our self-styled elites. The guy you want fixing your car is not the flash salesman, but the bloke who has, one way or another, had a look underneath.

by Claire Browning on September 20, 2010
Claire Browning

But some of us like to watch bloodsports ... and James' contribution, I felt, was particularly fine ...

by Andrew Geddis on September 20, 2010
Andrew Geddis

Claire,

Plenty of other places to witness that sort of malarky ... some of which I visit myself. It's all about context.

by Will de Cleene on September 20, 2010
Will de Cleene

Please leave shoes and taniwhas outside the pundit wharenui.

by Nick S on September 20, 2010
Nick S

While I don't endorse the move to disenfranchise all prisoners, I can at least understand the emotions behind the move.

But the process used to get the bill through the select committee, ie sending it to the inappropriate one, but which is conveniently chaired by the govt's staunchest yes-(wo)man, surely undermines the legitimacy of the govt more than the end result.

Further, that the govt saw necessary to send it that committee rather than the Justice and Electoral Committee suggests that the govt realised it would run into opposition. If, as you suggest Andrew, the govt (or John Key at least) will bury the bill, wouldn't it have been easier, and better politics, to send it to the right committee and blame the opposition for stopping it, rather than having to move against your own allies?

Maybe Key and co won't stop it, but just amend it to allow the existing rule to apply to all existing prisoners.

by dave on September 20, 2010
dave

Great post - but I think you`ll find the relevant section is 80(1) d - as opposed to 81(d). Even the select commitee got that one right. :-).

by Andrew Geddis on September 20, 2010
Andrew Geddis

dave,

Details, man! Details!

I'm a big picture guy.

Point noted, change made.

by donna on September 20, 2010
donna

Bravo Andrew!

My legal training, although largely forgotten, did instil a certain constitutional fundamentalism, and here I find myself agreeing with this post pretty much as it stands. Unfortunately, the idiocy of the Select Committee seems to have plenty of echoes elsewhere, not least in handing unbridled power to His Gerryness.

As if the lawmakers didn't have enough credibility problems already...

by donna on September 20, 2010
donna

Bravo Andrew!

My legal training, although largely forgotten, did instil a certain constitutional fundamentalism, and here I find myself agreeing with this post pretty much as it stands. Unfortunately, the idiocy of this Select Committee seems to have plenty of echoes elsewhere, not least in handing unbridled power to His Gerryness.

While prisoners are easy prey for law and order populists, the bigger question here is who's next?

by BeShakey on September 20, 2010
BeShakey

"While prisoners are easy prey for law and order populists, the bigger question here is who's next?"

Easy - people who have been on an unemployment/sickness benefit for more than three years have voluntarily excluded themselves from society and don't deserve to vote.

by Julienne Molineaux on September 20, 2010
Julienne Molineaux

They’ve done a similar thing with the State Sector Management Bill: taken a Bill with constitutional implications and sent it to the wrong select committee (which the government is lawfully entitled to do).

The SSM Bill allows two groups of state sector mergers to go ahead; the uncontentious MORST and FORST merger (Labour is agnostic on this and won’t oppose it), and the more controversial merging of Archives NZ, the National Library and the Department of Internal Affairs.

Instead of sending the SSM Bill to the Government Administration Committee, which deals with the state sector, and hears reports from Archives NZ, the Library and Internal Affairs, it has been sent off to the Education and Science Select Committee. Why? Because one of the mergers (MORST + FORST) is to do with science. But as I said, that merger isn’t being contested and there probably won’t be a lot of submissions on it.

The real reason? To bury the contentious merger, which with its demolition of the powers of the Chief Archivist, is a constituional abuse. I wrote about the merger in general terms here:
http://www.pundit.co.nz/content/neutering-an-agent-of-our-constitution

by Julienne Molineaux on September 20, 2010
Julienne Molineaux

Sorry for the thread hijack Andrew!

by Andrew Geddis on September 20, 2010
Andrew Geddis

Julienne,

No worries ... we still have to put up your post on this. Apologies.

by Julienne Molineaux on September 20, 2010
Julienne Molineaux

Oh, I haven't submitted a new post on it yet. Busy writing my select committee submission and battling the 'flu!

by Phil Sage on September 20, 2010
Phil Sage

sorry - that seemed to be a double post.

Andrew - I was not being obtuse, simply pointing out that I thought if you take the important step of removing liberty then removing the right to vote is consistently part of the lost parcel of rights

by Kate Smith on September 20, 2010
Kate Smith

Graeme:

Have a look at the Crimes Act 1961, s.19D and 19E.

I am aware that there is a power, but:

1. It cannot be used in respect of fine only offences.

2. In respect of imprisonable offences, the Sentencing Act (at least by analogy) would require community-based sentences to be imposed first.

In essence, I dispute that this power is used to imprison fine-defaulters all that often. But we shouldn't keep discussing it in ignorance, as we should have a definitive answer some time in the next 20 working days.

You can also look to section 88 of the Summary Proceedings Act.  A bit of a meal to read but it is there.  See in particular 88(5) which says imprisonment can be imposed even if the defendant was not liable to imprisonment in respect of the original offence.

And, it happens.  Whether it happens to one person or to hundreds, the principle remains the same.  I'm actually surprised that you would even raise that in discussion as though it's valid to say "well, it doesn't happen that often, so it doesn't matter."  It does matter.  Perhaps that wasn't your intent, but that's how it read.

by Andrew Geddis on September 21, 2010
Andrew Geddis

I'm posting the following comments from a colleague's email:

"Have just read your update.  I think you're right and Corrections (per grapevine hearsay) are wrong, very wrong.  Liability to a penalty for an offence is liability to a sentence - fine, imprisonment, etc.  The point of the Interpretation Act savings provision, per the earlier law it affirms, is to maintain continuing criminal liability for acts that were criminal at the time, and to preserve the legal effect of the machinery needed to proceed against person who committed such acts, hence one is liable to arrest/trial/sentence notwithstanding the repeal of the offence (or the provision governing how one tries offenders).  Having just read s 19(1) and (2) this is blindingly clear.  As you point out, the disenfranchisement per the Electoral Act is not a penalty that attaches to an offence - one could have structured it as such, if it had been included in the Crimes Act and was imposed by the sentencing judge let's say ('5yrs in prison and no voting!').  But Parliament instead chose, in an entirely separate Act to attach a consequence to persons serving sentences of a certain length.  Section 19 concerns, inter alia, provisions that authorise the imposition of a penalty on an offender - a sentencing judge imposes a penalty, whereas a statutory bar that attaches when one has committed an offence (say a bar on acting as a director in a company, or being admitted as a barrister and solicitor) does not involve the imposition of a penalty.  It trades on the imposition of a penalty - making the past fact of said imposition a condition for the operation of the statutory bar - but isn't itself the imposition of a penalty.  Your discussion of s 80 Electoral Act itself makes this clear.  You might make it slightly more complete by pointing out that s 80(1) disqualifies five different classes of person, of whom one class is offenders of the relevant description.  Only the fourth and fifth disqualification turn on the actions of the disqualified person (being an offender or being on the 'Corrupt Practices List'); the other classes relate to presence in the jurisdiction, length of residency and mental health.  Yet it is the same disqualification in all cases, which means it is absurd to say this is a penalty imposed for breach of an enactment.  The rule disqualifying persons (including some offenders) takes as one condition for its operation the breach of an enactment, but this enactment (the relevant provisions of the Crimes Act, etc) isn't being repealed by the Quinn Bill.  But for this provision - s80(1)(d) - offenders of the relevant kind are required by law (s82...) to register as voters.  Their duty to register arises because they are qualified under s74 (most are anyway, there are some non-citizens in the mix) and are not disqualified under s80 (if the Quinn Bill is enacted).  In short, I'd reject out of hand any argument an offender attempted to make that he did not have to register to vote ('no duty for me your honour') because his disqualification was a penalty imposed on him by s80, the repeal of which did not remove his continuing ineligibility to vote.  So I'm not sure we should take the argument any more seriously when it is (if it is...) Corrections attempting to cover their tracks for shoddy drafting.  (If they intended to preserve the ineligibility of the relevant class of offender, it'd obviousy be best to say precisely this; it is poor drafting practice at best to rely on this defeasible proposition in the Interpretation Act, especially given the relevance of NZBORA, which might undermine their intended end [if one charitably believes they were remotely aware of this before you showed them up].)"

by Lucy Telfar Barnard on September 21, 2010
Lucy Telfar Barnard

On the radio this morning someone (possibly Paul Quinn, but I caught it between the usual morning tasks so didn't catch the name) said it couldn't be sent to the Electoral Legislation Committee because that committee had been established solely to consider and report on (from Brownlee in Hansard) "legislation concerning the referendum on the electoral system and reform to the electoral finance regime." Would someone care to comment on whether this is the case, or just a convenient excuse?

by Phil Lyth on September 21, 2010
Phil Lyth

Lucy, it's a smoke and mirrors answer, trying to distract attention.  True as far as it goes, but totally ignores the fact that the Justice and Electoral Select Committee is established in every Parliament to deal with these matters.

by Lucy Telfar Barnard on September 21, 2010
Lucy Telfar Barnard

Thanks Phil. Didn't help that Andrew also linked to the Electoral Legislation Committee - though I can see the attraction, in that its membership is broader than Justice and Electoral.

 

by Phil Lyth on September 21, 2010
Phil Lyth

Easy to confuse the two committees.

In the arcane processes post-election (I could write a post on those),  Justice and Electoral ended up with only National Labour and Green members.  For consideration of the weighty electoral bills, rather than add other parties MPs as non-voting members,  the Electoral Legislation committee was set up with limited scope but MPs from all seven Parliamentary parties.

by John Hutchins on September 22, 2010
John Hutchins

Andrew,

I find it interesting how this "voting" issue has stirred up commentators ethical leanings surrounding the "Rights" of prisoners. Or certain prisoners anyway.

In reality Andrew, this is but a sideshow to the much wider and somewhat emotional debate on crime and punishment, that appears to feaster away on peoples consciousness.

For this issue though, perhaps people are being just alittle bit too precious about "their" rights versus a prisoners rights.? I also get the distinct impression that any right a prisoner may currently have , is a right to many!

Personally, giving or taking away a prisoners eligibility to vote won't in anyway influence the balance of power. Nor will it duelly concern the prisoners one way or the other. It only really matters to those protaganists that champion causes like harsher penalties where enough is not enough. And enough is too much!!

In my experience, whilst imprisoned, a "right" is generally equated to a privilege, that derives some form of benefit. In this being the case I would certainly be interested in knowing "what" the benefit or benefits would in fact be, should "those" effected prisoners be eligible to vote??

On the flip side, what can be gained by denying prisoners the vote??

Quite frankly, I struggle to see "what" benefit  would be gained by a prisoners eligibility to vote, other than the benefit of being able to vote in itself!!!

there are from allowing eligible of allowing, those prisoners already excluded by law, the "benefit" of voting??

 

 

by Tim Watkin on September 22, 2010
Tim Watkin

First up, thanks to thosen protecting the level of debate here on Pundit. Onya. We love lots of comment, but as we alays say around here, "play the ball, not the person".

It's funny that when I was growing up, the ethos I learnt as a kid was similiar to that outlined by Justin. Get convicted of a crime and you get banished for civil society and all the privileges thereof.

So at first I thought Quinn had a point. But you've won me over Andrew, and then some.

by Matthew Whitehead on September 22, 2010
Matthew Whitehead

I've long thought that making the Bill of Rights sovereign over parliament would be a far better way of dealing with our laws in general and raise the standard of debate in Parliament in addition to protecting citizens better, and you've just bolstered that opinion considerably.

I think it's about time we started working on a publicity campaign for something like this rather than just supporting it. My initial reaction is to go for a petition, but you still have to convince a government at some point to implement it, which presents its own problems.

Thinking of prison as banishment is definitely problematic for all sorts of reasons. It does have some things in common in terms of disrupting your social access, but it's incredibly important to understand that that's a side-effect of the reason we imprison people.

by David Bearstow on September 22, 2010
David Bearstow

I sat public law in 08 and Andrew is definitely very enthusiastic about Parliamentary Sovereignty. A lot of the enthusiasm rubs onto students.

I definitely reckon Ive seen Andrew Geddis smash back a jug of speights in under 4 seconds at pint night as well. What a good sort.

 

by Sean on September 22, 2010
Sean

I don't see how refusing the vote to prisoners can be consistent with:


Electoral rights

Every New Zealand citizen who is of or over the age of 18 years—

(a)Has the right to vote in genuine periodic elections of members of the House of Representatives, which elections shall be by equal suffrage and by secret ballot; and

(just pasted from the 'bill of rights')

Why do the NZ government always seem like a group who heard of the concept of rule of law a while ago then decided not to have anything to do with it.

It is no wonder that the OECD despairs of NZ, some of the basics are just missing.

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