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 Justin Maloney on October 20, 2010
Justin Maloney

I missed the good bit of the debate from what I saw the Bill passed its second reading with the SC amendments included. Not surprisingly only Nat & ACT voted for it. Be interesting to see if any SOPs are put in during the committee stage.

by Liam Williams on October 26, 2011
Liam Williams

Pity about the spam!

I couldn't agree with your line of reasoning more, Andrew. Quinn's move to introduce a blanket ban on prisoner franchise is an appeal to the ugliest side of penal populism. Surely any restriction on a group's ability to cast a ballot must be done on the basis of some unequivocal justification. Of course, in this particular case, such a justification is wholly absent.

The most unfortunate thing is that it will be decades (if not more) before we will see a repeal of this amendment. Prisoners are a obviously a pretty difficult group to rally behind. The ECtHR's attempt to bring the UK into line over its disenfranchising legislation hasn't exactly met with a roaring success, that's for sure.

I think the Parliamentary Debates over the three readings of the Bill reflect a disappointingly simple and ignorant approach by National to this issue. Considering that it is a matter of franchise, I admit to being a little bit frightened about the kind of precedent this sets.

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