Bob Edlin: Yet more discrimination from the Waitangi Tribunal

We are wondering – here at Point of Order – which politician will go out to bat for the idea that all citizens of this country be accorded exactly the same voting rights they were given at the time of the signing of the Treaty of Waitangi. 

To ensure nobody was denied those rights, all prisoners of all races in our prisons should be included in this entitlement.

We would like to think the Waitangi Tribunal might consider endorsing this idea because today it has released He Aha i Pērā Ai? The Māori Prisoners’ Voting Rights Report in pre-publication format.

The tribunal says the urgency report addresses three claims that seek repeal of section 80(1)(d) of the Electoral Act 1993. It looks at the level of advice provided to Parliament and the Law and Order Select Committee and the consequent ongoing effects of the legislation on Māori, including the individual and collective exercise of tino rangatiratanga.

In other words, its approach is proudly discriminatory. It is concerned not with the rights of all prisoners but with the rights of around half of them.

The tribunal has found that the manner in which Crown officials offered support and advice to the Law and Order Select Committee failed to provide sufficient information about the specific effect the legislation would have on Māori and Crown rights and obligations under the Treaty.

By failing to provide adequate advice, the Crown failed to actively protect Māori rights under the Treaty and failed in its duty of informed decision-making under the principle of partnership, which contributed to the Act being in breach of the Treaty.

This principle of partnership is a comparatively recent construct.

A New Zealand Herald report in 2004 referenced Ministry of Justice information that there were 22 laws which imposed duties or responsibilities in relation to the Treaty of Waitangi and its principles; there were four statutory appointment processes involving Treaty of Waitangi considerations; and 13 laws in which there was general reference and recognition of the Treaty of Waitangi.

The Crown Minerals Act 1991 said “all persons exercising functions and powers under the Act are required to have regard to the principles of the Treaty of Waitangi” whereas the Conservation Act 1987 said “The Act is to be so interpreted and administered as to give effect to the principles of the Treaty of Waitangi” and the State Owned Enterprises Act 1986 said “Nothing in this Act permits the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.”

What principles?

As is evident further down the Herald report, they are still being gathered.

Other principles are identified in various court decisions and Waitangi Tribunal reports and will continue to be identified, but the 1987 case produced the mother of all treaty principles – partnership.

This landmark principle was established by the Court of Appeal in 1987 in a case over disposal of state-owned land brought by the Maori Council.

It is evident our legislators – including former Attorney General Sir Geoffrey Palmer – did not anticipate this interpretation.

The Herald report goes on:

Even Sir Geoffrey said he had been surprised at the judgment. He told the Herald this week that the clause had had “unexpected consequences”

“It did come as somewhat of a surprise to me that the Court of Appeal read that phrase up rather than read it down,” he said, explaining that the court had given the clause “a very wide and generous interpretation”.

Sir Geoffrey by then was advocating that Parliament be as precise as it can be over such references.

“A vague reference to treaty principles is not as good as a specific reference to what it is you want done.”

And so we come to the latest interpretation of treaty principles and their discriminatory effects in today’s report from the Waitangi Tribunal.

By failing to ensure any potential consequences for Māori were recognised and taken into account during the select committee process and/or by failing to propose the repeal of the provision once those effects were recognised, the Crown has failed in its duty to actively protect the right of Māori to equitably participate in the electoral process and exercise their tino rangatiratanga individually and collectively. The Tribunal finds this to be a breach of the principles of active protection and equity.

The Tribunal also found that disenfranchising Māori prisoners has continued to impact on the individual following their release from prison and that impact extends beyond the individual to their whānau and their community. The Crown, therefore, has failed in its duty to actively protect the right of Māori to equitably participate in the electoral process and exercise their tino rangatiratanga individually and collectively. By failing to take sufficient action to enable and encourage released prisoners to re-enrol, the Crown has further breached its duty of active protection.

A further finding was that section 80(1)(d) of the Electoral Act 1993 was inconsistent with, and partly undermined, the purpose of the corrections system under section 5 of the Corrections Act 2004. Therefore it prejudices the rehabilitation and reintegration of Māori prisoners, “a further breach of the principle of active protection”.

Having ruled that the Crown has acted inconsistently with the Treaty principles, the Tribunal has recommended: 

• the legislation is amended urgently to remove the disqualification of all prisoners from voting, irrespective of sentence;
• the Crown start a process immediately to enable and encourage all sentenced prisoners and all released prisoners to be enrolled in time for the next general election in 2020; and
• a process is implemented to ensure Crown officials provide properly informed advice on the likely impact that any Bill, including members’ Bills, will have on the Crown’s Treaty of Waitangi obligations.

Obviously there are many strong arguments against depriving prisoners of their right to vote.

Otago University law professor Andrew Geddis is among the champions of an urgent change. He writes

“ … the legislative ban on prisoners voting enacted in 2010 by National and Act Party MPs is a terrible law that shouldn’t ever have been passed. But in laying out how poorly conceived this law was and just how negatively it affects Māori in particular, He Aha Perā Ai? The Māori Prisoners’ Voting Report, which has just been released by the Waitangi Tribunal, presents us with a fierce reminder of the need for change.”

He references the tribunal’s data showing the legislation has had a grossly disproportionate effect on Māori. Under the old law in 2010 – under which only prisoners serving sentences of three years or more could not vote – Māori were 2.1 times more likely than non-Māori to be removed from the electoral roll due to incarceration.

When the new electoral law was introduced in 2010, this disparity surged to 9.3 times more likely and in 2018, Māori were 11.4 times more likely than non-Māori to be removed from the electoral roll due to incarceration.

Geddis highlights the tribunal’s rejection of the Crown’s assertion that its decision to remove prisoners from the electoral roll was a reasonable exercise under its right of Kāwanatanga.

The tribunal wasn’t having a bar of that claim:

“Since its amendment, the legislation has indeed disproportionately disenfranchised Māori. In doing so, it has created an arbitrary distinction between otherwise equal citizens; in particular between Māori and non-Māori but also between Māori prisoners and the wider Māori population. The legislation is punitive and breaches Māori citizenship rights. It undermines the crown’s good government obligations to reduce inequality.”

In other words, Geddis concurs, when the Crown took the right to vote from prisoners, it fundamentally failed in its treaty obligations.

But the tribunal is not alone in denouncing the denial of prisoners’ voting rights, he points out.

In the near-decade since its passage, the legislation banning prisoner voting has been called “constitutionally outrageous” by a High Court judge, formally declared to be inconsistent with the New Zealand Bill of Rights Act by the Supreme Court, and now held to be in breach of Treaty principles by the Waitangi Tribunal. And that’s without considering what less impressive people like mere legal academics have said about it.

The law has the formal effect of barring thousands of New Zealanders (disproportionately Māori) from voting at each election, and the practical effect of knocking hundreds from the electoral roll, which they then are highly unlikely to rejoin in the future. This despite the government’s stated aim of making voting as easy and accessible as possible.

It is manifestly bad law. The only reason it exists is that many New Zealanders might like it because they think prisoners are bad people and so don’t want them voting alongside “proper Kiwis” at an election. Which is a really, really terrible basis for deciding who should lose their right to vote.

Geddis accordingly challenges politicians on both sides of the aisle to join in repealing the law.

So, government (and National opposition responsible for creating this problem in the first place), the Tribunal has put the ball firmly back into your court.

But should the law be repealed because it is bad for all prisoners – or because it is bad for just half of them and accordingly breaches treaty principles?

If the treaty is the over-riding consideration, then why not go the full hog and apply the treaty as it was signed in 1840 to the constitutional arrangements at that time.

Want a refresher course? Try this:

In the years after New Zealand became a British colony, New Zealand was ruled by a governor. The New Zealand Constitution Act was not passed until 1852 and the first parliamentary elections were held in 1853.

Bob Edlin is a veteran journalist and editor for the Point of Order blog HERE.