Monday, August 12, 2019

National's prisoner voting ban breaches the Treaty

National's prisoner voting ban has gone down as one of the worst laws in New Zealand history. Passed after a farcical debate (including this farcial speech from ACT MP Hilary Calvert), it has subsequently been found to be inconsistent with the Bill of Rights Act by the High Court, Court of Appeal, and Supreme Court. And now the Waitangi Tribunal has weighed in, with a formal finding that the law and how it was passed breaches the Treaty of Waitangi:

The Tribunal found that the manner in which Crown officials offered support and advice to the Law and Order Select Committee before the 2010 law change failed to provide sufficient information about the specific effect the legislation would have on Māori, as well as on Crown rights and obligations under the Treaty.

By failing to provide adequate advice, the tribunal said the Crown had failed to actively protect Māori rights.

Additionally, they found that being unable to vote had the potential to affect Māori prisoners beyond their time in prison, impacting their whanau and their community.

The law has a hugely disproportionate impact on Māori, with 11.4 times more Māori than Pakeha disenfranchised in 2018. Effectively its a magnifier for racism in the justice system - and one that is completely without justification. The government could identify no purpose whatsoever for the policy, and none was identified by Parliament when they shamefully passed it.

The Tribunal has asked the government to urgently repeal the law and allow prisoners to vote in 2020, and to their credit, they're actually looking at it (having previously said it was "not a priority". Which tells you what they think of the courts and Bill of Rights Act). But they've also recommended that the government establish a system to provide a proper Treaty impact analysis of all bills before the House. That is something worth doing in and of itself, and it needs to be an independent statutory reporting function, similar to that of the Attorney-General under the BORA, so that the House cannot pretend that it has not been informed. That would be a worthwhile reform in and of itself, to ensure that Parliament upholds its Treaty obligations. Sadly, I think they'll be as eager for it as they are for any other constraint on their power.