Voting rights of criminally convicted or sentenced persons in New Zealand

Facts

The Committee’s views on voting rights of prisoners in New Zealand that a blanket ban violates the Covenant shows the potential of a profound impact by reaffirming the importance of the principle of inclusivity in democratic processes. The Committee’s views on disenfranchisement of prisoners to be undertaken in a manner where clear legal standards and assessments are applied in order to specifically determine the reasonableness is an important guiding factor for countries which have similar laws on voting rights of prisoners. It is also noteworthy that the Committee found that disenfranchisement should relate to the nature of the offence in order to ensure equal opportunity for all to participate in a democratic electoral process.

Voting rights of prisoners in New Zealand have been modified several times over the past 50 years. In 2010 New Zealand passed the Electoral (Disqualification of Sentenced Prisoners) Amendment Act (2010 Act) where persons detained in a prison pursuant to a sentence of imprisonment imposed after the commencement of the 2010 Act were disqualified from registration as electors. In 2020 New Zealand passed a legislative bill (2020 Act) which removed the blanket ban on electoral registration imposed on sentenced prisoners since 2010, and the position under the 2020 Act was that prisoners serving sentences of three years or more, sentences for life or preventive detention were disqualified from registering to vote.

The three authors, Mr. Taylor (19 years prison sentence), Sandra Hinemanu Ngaronoa (7 years 2 months prison sentence) and Sandra Wilde (2 years 9 months prison sentence) -the latter authors are Māori individuals- are nationals of New Zealand who were imprisoned due to criminal sentences at different times, and their present communication arises from domestic challenges to the 2010 Act. In 2014, the authors filed for judicial review before the High Court and sought for interim measures to preserve their right to vote in a general election that was scheduled and challenged the lawfulness of the 2010 Act. The Court held that the 2010 Act could not be invalidated. An appeal was filed which was rejected on the ground of undue delay. Another appeal for review by a full bench was also rejected on the grounds that there was insufficient time to review it before a general election that had been scheduled on 20 September 2014.

In 2013, the authors had filed a claim seeking a declaration that the 2010 Act was inconsistent with the provision of the New Zealand Bill of Rights Act and Human Rights Act, and a declaration of inconsistency in favour of the authors was made which was also confirmed by the Supreme Court. In 2016, the authors filed separate claims against the Attorney General before the High Court arguing the inconsistency of the 2010 Act. In 2016, the High Court dismissed the authors’ claims.

The authors appealed to the Court of Appeal claims that given the disproportionately high number of Māori in prisons, there would be a reduction in their representation in the electoral polls. The Court of Appeals dismissed the appeal, and the authors requested leave to appeal to the Supreme Court which dismissed the authors’ appeal with respect to entrenchment. In 2014, two of the Māori authors filed a claim before the Waitangi Tribunal, a standing commission of enquiry, alleging that the 2010 Act violated the rights of the Māori to political representation and self-determination which did not address the discrimination but held that Māori had been disproportionately affected.

The authors claim that the enactment of the 2010 Act has violated their right to respect, right against cruel or degrading treatment, liberty, to participate in public affairs and equality before the law under articles 2 (1) - (3), 5, 7, 10, 25 and 26 of the Covenant

Admissibility

The Committee noted the State party’s submission that the authors have not exhausted domestic remedies with respect to their claims under articles 7, 10, and 26, and the authors’ acknowledgement that they did not invoke the substance of claims under articles 7 and 10 before domestic authorities. The Committee held that it is precluded by article 5 (2) (b) of the Optional Protocol from examining the authors’ claims under articles 7 and 10, and aspects of the 2010 Act being motivated by racially discriminatory legislative intent under article 26.

Two of the authors, Mr. Taylor and Ms. Ngaronoa, claimed that although the subject of the domestic proceedings at issue was the legitimacy of the 2010 Act, their rights under article 25 have not been restored because they remain unable to vote under the 2020 Act. The Committee held that this claim was unfounded as they had not demonstrated that they exhausted all domestic remedies to contest the 2020 Act; and held the claims under article 25 (b) as inadmissible under article 5 (2) (b) of the Optional Protocol.

Recalling its jurisprudence that articles 2 and 5 of the Covenant lay down general obligations and do not give rise, when invoked separately, to claims under the Optional Protocol, the Committee considered these claims as inadmissible ratione materiae under article 3 of the Optional Protocol. Contrary to the State party’s argument that the communication was entirely inadmissible with respect to Mr. Taylor and Ms. Ngaronoa, the Committee noted that while Mr. Taylor and Ms. Ngaronoa were disqualified from registering to vote under the Electoral Act 1993 (law to the 2010 Act), they remained disqualified under the 2010 Act. The Committee held that Mr. Taylor and Ms. Ngaronoa were affected by the 2010 Act for the purpose of article 1 of the Optional Protocol.

Contrary to the State party’s argument that the claim under article 25 of the Covenant was inadmissible as the State party had already provided remedy from the same through enactment of the 2020 Act by removing the blanket ban on voting by prisoners, the Committee held that when the communication was submitted, none of the authors enjoyed the right to vote and hence, for the purposes of admissibility, the authors have victim status with respect to their claims of denial of the right to vote under article 25 of the Covenant. Furthermore, the Committee noted Mr. Taylor’s claim under article 26 is inadmissible as he is not Māori and does not explain his claim of discrimination. However, the Committee held that Ms. Ngaronoa and Ms. Wilde, as Māori prisoners, have sufficiently substantiated the allegedly racially discriminatory effects of the 2010 Act on them under article 26. For these reasons, the Committee declared the authors’ claims under article 25 and 26 (for Ms. Ngaronoa and Ms. Wilde) as admissible.

Merits

In its assessment as to whether the 2010 Act violated the authors’ rights under article 25 (b) of the Covenant, the Committee noted that there was nothing to indicate that automatic disenfranchisement of prisoners convicted of serious offences deterred further offending, and thus raised questions regarding the proportionality of the disenfranchisement to the objective of deterrence. While agreeing that corollary deprivations to imprisonment were justifiable as punishments for serious criminal offences, disenfranchisement represented a realm of separate and additional punishment. Committee referred to para. 14 of its General Comment No. 25 which stated that if the disenfranchisement of prisoners was considered as a form of punishment, then clear legal standards and assessments should be applied in order to specifically determine the reasonableness of the same. The Committee noted that in the absence of certain circumstances, deprivation of the right to vote is unrelated to the nature of the offence and that as citizens of the State party, they should have an equal opportunity to participate in democratic electoral processes.

The Committee considered that the automatic disenfranchisement owing to a criminal conviction in the absence of a reasonable connection between the nature of the offence and the stripping of voting rights violates article 25 (b) of the Covenant. And since the 2010 Act did not meet this standard of a reasonable connection, it was held to be incompatible and had violated the authors’ rights under article 25 (b) of the Covenant. In pursuance of evaluating such reasonable connection, the Committee noted that Mr. Taylor and Ms. Ngaronoa had been convicted of serious drug offences and there was no indication about the offences committed by Ms. Wilde, thus giving no assessment whatsoever of a reasonable connection between the specific nature of their offences and the disenfranchisement, thus violating article 25 (b) of the Covenant. Having found a violation of article 25 (b), the Committee did not deem it necessary to examine the claims under article 26.

Recommendations

Taking into account that in the present communication the authors did not request for any pecuniary compensation, the Committee held that its views on the merits of the claim constitute sufficient remedy for the violation found. However, the State party is under an obligation to:

a) Prevent similar violations from occurring in the future;

b) Review its legislation on voting restrictions for prisoners and align it with the State party’s obligations under article 25 (b) of the Covenant.

Implementation

Deadline for implementation: 5 January 2024