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Prisoner’s Right to Vote in New Zealand – For And Against

In New Zealand there are approximately 3 million citizens who are eligible to vote. However it must be noted that more than 2500 adult prisoners in New Zealand are disenfranchised because of their status as being a long term prisoner. The provisions provided under the electoral act of 1993 had curtailed the power and right to vote which conflicts with the New Zealand bill of rights act 1990. In New Zealand all the adult prisoners who are serving the sentence of life imprisonment or are being subjected to detention for more than a period of 3 years are barred to vote. This essay will deal with the arguments that are in favour as well as against the right of voting from the end of the prisoners in New Zealand.

According to the New Zealand bill of rights act 1990, the provision of universal suffrage must be truly universal in its entire sense and must be extended to the prisoners irrespective of the period of their detention. However on the other hand it is the discretion of the parliament to limit the right of vote and the same can be analysed and examined based on various overseas laws. Australia is a country that had witnessed the removal of the right to vote for the prisoners. The history of prisoners' disenfranchisement has evolved from the concept which is very ancient and also known as a forfeiture of rights. Disenfranchisement is usually applied towards the offense of perjury as this is treated as a direct attack upon the integrity of the entirely legal system. The forfeiture act 1870 had abolished various penalties applied for treason and the offense of felony. This Act has retained to those persons whose sentence or imprisonment is exceeding 12 months. However, New Zealand had started disenfranchisement of all the prisoners irrespective of their offense under the New Zealand Constitution Act 1852. Universal suffrage conflicts with the disenfranchisement. According to the qualification of Electoral Act 1879, the disenfranchisement can be retained for the prisoners who had committed serious offenses in the territory of New Zealand.

So therefore according to this Act when the right to vote was restored, restricting the universal suffrage for any particular sector in the society will be against the intention of the Act. Curtailing of prisoner's right to vote is against The Universal Declaration of Human Rights which focuses on providing equality and avoid discrimination on any grounds such as race or imprisonment in the society. Taking part in a periodic and general election is an important essence of equal suffrage which gives the opportunity of right to vote. Therefore according to the International Covenant on Civil and Political Rights, curtailing the right to vote conflicts with the universal rights provided at the international platform without any justiciable reasons.

Any unreasonable restrictions on the right to vote are directly in conflict with the United Nations Centre for Human Rights, the commission had referred to the fact that no excessive limitations can be imposed upon the voting rights of the prisoners. According to article 25 of ICCPR, only convicted persons may have a right to vote and can only be suspended based on reasonable grounds and such suspension must be proportionate with the sentence awarded to the prisoner. It is important to check the concentration of reasonability with section 80 (1) (d) of the Electoral Act 19938. The New Zealand bill of rights act is obligated under the ICCPR. Therefore every citizen in the territory of New Zealand who is above the age of 18 years has a right to vote.

There is a conflict between providing universal suffrage to all the sections of the society and the process of disenfranchisement of the convicts as the clash can easily be noticed between section 80(1)(d) of the electoral act 1993 which talks about giving equal opportunity to vote and between section 12 (a) of the NZBORA which talks about providing disenfranchisement on reasonable grounds. The major limitations that can be identified from the acts governing under New Zealand fail to provide a justified limitation for NZBORA.

On the other hand there are various scholars like Paul Quin who had argued that providing restrictions upon the right to vote for the prisoners is correct according to the social contract theory. The major contention behind this statement was that the prisoners and breaches the contract between them and the state and therefore some of their rights are restricted on the grounds of betraying with the state. The legislation made for the disqualification of sentence prisoners is not in retrospective effect so if any convicted person who had not been sentenced for more than three years will be eligible to vote. According to this theory of social contract the stability of society underlines the balance between the responsibilities of the human and the rights provided to them. Therefore it is very important than humans must not break the law and curtailing the prisoners from voting is another form of punishment for the lawbreakers.

It can be concluded that section 7 of NZBORA is inconsistent with the voting rights provided under the bill. As time changes it is the requirement from the end of the state to modify an immense already existing provision under various acts to maintain rationality and proportionality between the objective of the act and its purpose. The complete blanket ban upon the offenders of serious crimes can be justified but this ban cannot be imposed upon every nature of the offense. There are various arguments for and against providing voting rights to the prisoners in New Zealand. However there can be no justification for limiting the basic human rights and universal suffrage for all the sections of the society. The uneven consideration application of the bill in New Zealand will create a disparity between the intentions of the legislature. This is the reason why in the year 2019, the ministry of justice has announced the amendment in the electoral amendment Bill which had allowed the prisoners who hanged not been sentenced for more than 3 years to vote in New Zealand for the general elections.

Bibliography

Cases

Taylor v Attorney-General[2014] NZHC 2225

Ministry of Transport v Noort [1992] 3 NZLR 260 (CA).

Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 (CA) [Moonen].

Acts/legislation

Forfeiture Act 1870 (UK), 33 & 34 Vict, c 23, s 2.

Electoral Amendment Act 1975, s 18(2)

Qualification of Electors Act 1879, s 2(4).

Journals/online sources

Paul Harris and Stephen Levine (eds) The New Zealand Politics Source Book (3 ed, Dunmore Press, Palmerston North, 1999) 516.

Neill Atkinson Adventures in Democracy: A History of the Vote in New Zealand (University of Otago Press, Dunedin, 2003) 50.

Carlo Calisse A History of Italian Law (Little, Brown, & Co, Boston, 1928) 511.

Sarah Anne McClelland The Significance of the Franchise: Democratic Choices and the New Zealand Electoral System (LLM Research Paper, Victoria University of Wellington, 1996) 109 and 112.

Mirjan R Damaska "Adverse Legal Consequences of Conviction and Their Removal: A Comparative Study" (1968) 59 J Crim L C & P S 347, 351.

J McGrath QC, SolicitorGeneral, to W A Moore the Secretary for Justice "Rights of Prisoners to Vote: Bill of Rights" (17 November 1992) Letter, para 26.

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