Prisoner voting ban shows how few parliamentary power checks there are
In short, removing prisoner voting rights will damage a critical but fragile check on Government power — what is known as the 'judicial declaration of inconsistency'.
An 'executive paradise'
New Zealand has been described as an ' executive paradise ' by constitutional lawyer and former Prime Minister Geoffrey Palmer. There is no upper house, no federal structure, and the courts lack the power to strike down unconstitutional legislation.
The constitution itself is a collection of statutes and conventions that, for the most part, can be changed by a simple parliamentary majority. The 1990 Bill of Rights Act is a cornerstone of that constitution, but is an ineffectual check on Government power.
When Parliament considers a bill that is potentially inconsistent with ' the human rights and fundamental freedoms ' set out in the Bill of Rights, the Attorney-General delivers a report explaining the inconsistencies.
This is supposed to be a deterrent, and one might think it would be the end of the matter. Unfortunately, that is not the case. Adverse Attorney-General reports have appeared regularly (there have been 15 since 2021) without blocking legislation.
Parliament's habit of passing legislation that does not comply with the Bill of Rights is why the recently developed judicial declaration of inconsistency is constitutionally important.
The declaration is a 'soft' legal power. It doesn't strike down laws or rewrite them. Rather, it is a ' weak form ' of review that enables affected citizens to petition the court to declare a law inconsistent with the Bill of Rights. This should then spur Parliament to fix the problem.
The declaration aims to start a constitutional dialogue between the two branches of government. Enabling citizens to hold Parliament accountable, it is a vital instrument in a system otherwise heavily dominated by the executive branch.
Constitutional dialogue in action
The High Court issued the first such declaration in the case of Taylor vs Attorney-General in 2015, declaring a total ban on prisoners voting was inconsistent with the Bill of Rights Act. The Government appealed, but the Supreme Court affirmed the declaration in a landmark 2018 decision.
What happened next, however, was just as important. If the declaration was to initiate a constitutional dialogue, it was up to Parliament to respond — which it did. In 2020, it rescinded the ban on voting for prisoners incarcerated for less than three years.
Then, in 2022, it amended the Bill of Rights to require the Attorney-General to notify Parliament when a superior court issues a declaration of inconsistency. And it required a ministerial report to Parliament on the Government's response within six months.
Those measures put in place a framework for constitutional dialogues. And this process played out in the next (and to date only) declaration of inconsistency. This was in 2022, when the Supreme Court declared prohibiting 16-year-olds from voting was inconsistent with the Bill of Rights.
In 2023, the Government tabled its response and introduced a bill to enable 16-year-olds to vote in local elections. The Government initially announced it would do the same for parliamentary elections. But that idea was dropped when it became clear this wouldn't get the necessary super-majority support of 75% of MPs.
An over-powered Parliament
Although modest, Parliament's responses were constitutionally important because they modelled a new framework for accountability. Chief Justice Helen Winkelmann suggested the process illustrated how courts and parliament could work together in the ' gradual and collaborative elaboration ' of New Zealand's constitution.
An evolving constitutional dialogue would enable the courts to pose a modest check on New Zealand's over-powered Parliament. So, those who hoped they were seeing the dawn of a new constitutional convention will be disheartened by the move to ban all prisoners from voting.
The current Government has already terminated the bill enabling 16-year-olds to vote, without mentioning this contradicted the Supreme Court's declaration of inconsistency.
Should Parliament now ban prisoner voting, it will have nullified all substantial responses to declarations of inconsistency. That would be a profound constitutional setback.
Parliament regularly flouts the Bill of Rights. We are now seeing it double down by rolling back its previous responses to judicial declarations.
New Zealanders already have comparatively little constitutional protection from Parliament. Reinstating a total ban on prisoner voting will undermine the practice of constitutional dialogue between the two branches of government. And it will weaken a fragile check on Government power.
Hashtags
Try Our AI Features
Explore what Daily8 AI can do for you:
Comments
No comments yet...
Related Articles
RNZ News
6 hours ago
- RNZ News
US Supreme Court to review death row inmate's intellectual disability ruling
By John Kruzel , Reuters Photo: 123RF The US Supreme Court on Friday agreed to hear an appeal by Alabama officials of a judicial decision that a man convicted of a 1997 murder is intellectually disabled - a finding that spared him from the death penalty - as they press ahead with the Republican-governed state's bid to execute him. A lower court ruled that Joseph Clifton Smith is intellectually disabled based on its analysis of his IQ test scores and expert testimony. Under a 2002 Supreme Court precedent, executing an intellectually disabled person violates the US Constitution's Eighth Amendment bar on cruel and unusual punishment. The justices are due to hear the case in their next term, which starts in October. Smith, now 54, was convicted and sentenced to death for the 1997 murder of a man named Durk Van Dam in Alabama's Mobile County. Smith fatally beat the man with a hammer and saw in order to steal his boots, some tools and $140, according to evidence in the case. The victim's body was found in his mud-bound Ford Ranger truck in an isolated, wooded area. The Supreme Court's 2002 precedent in a case called Atkins vs Virginia barred executing intellectually disabled people. US President Donald Trump's administration backed Alabama's appeal in the case. At issue in Smith's case is whether and how courts may consider the cumulative effect of multiple intelligence quotient (IQ) scores in assessing a death row inmate's intellectual disability. Like many states, conservative-leaning Alabama considers evidence of IQ test scores of 70 or below as part of the standard for determining intellectual disability. Supreme Court rulings in 2014 and 2017 allowed courts to consider IQ score ranges that are close to 70 along with other evidence of intellectual disability, such as testimony of "adaptive deficits." Smith had five IQ test scores, the lowest of which was 72. A federal judge noted that Smith's score could be as low as 69, given the standard of error of plus or minus three points. The judge then found that Smith had significant deficits from an early age in social and interpersonal skills, independent living and academics. The Atlanta-based 11th US Circuit Court of Appeals upheld the judge's conclusions in 2023, setting aside Smith's death sentence. This prompted Alabama officials to file their first of two appeals to the Supreme Court in the case. In November, the justices threw out the 11th Circuit's decision, saying that the lower court's evaluation of Smith's IQ scores can be read two ways, and requires clarification. Ten days later, the 11th Circuit issued an opinion clarifying that its evaluation was based on "a holistic approach to multiple IQ scores" that also considered additional relevant evidence, including expert testimony. This prompted a second appeal by Alabama officials to the Supreme Court. Alabama in its filing to the Supreme Court argued that the lower courts in the case applied the wrong legal standard in establishing Smith's intellectual disability and urged the justices to take up the appeal to provide clarity on the issue. Friday's action by the court was unexpected. The court had planned to release it on Monday along with its other regularly scheduled orders, but a software glitch on Friday prematurely sent email notifications concerning the court's decision in the case. "As a result, the court is issuing that order list now," said court spokesperson Patricia McCabe. It is not the first time the court has inadvertently disclosed action in sensitive cases. Last year, an apparent draft of a ruling in a case involving emergency abortion access in Idaho was briefly uploaded to the court's website before being taken down. That disclosure represented an embarrassment for the top US judicial body, coming two years after the draft of a blockbuster ruling rolling back abortion rights was leaked. - Reuters
Scoop
6 hours ago
- Scoop
Te Pāti Māori Co-Leader Debbie Ngarewa-Packer On The Longest Suspension In Parliament
She says the Privileges Committee process is not equipped to deal with the haka issue. Saturday Morning This week, Parliament took the unprecedented step of suspending both Te Pāti Māori leaders – Debbie Ngarewa-Packer and Rawiri Waititi – for 21 days. Te Pāti Māori MP Hana-Rawhiti Maipi-Clarke was suspended for seven days – but had also been punished with a 24-hour suspension on the day over a haka all three had performed in Parliament, against the Treaty Principles Bill, in November. It is against the rules of the House for members to leave their seats during a debate – which all three did. Ngarewa-Packer told Saturday Morning that the 21-day suspension, which was seven times harsher than any previous sanction an MP has faced, was not proportionate. 'I think the backlash from the public, nationally and internationally, validates that,' she said. Previously, the longest suspension for an MP had been three days, given to the former prime minister Robert Muldoon for criticising the speaker in the 1980s. While New Zealand First leader Winston Peters said the duration of the suspension would have been lessened if the Te Pāti Māori MPs had apologised, Ngarewa-Packer said that was never requested by the Privileges Committee. 'What we have here is a situation where, and some are calling it Trumpism, we've been a lot more specific – we have an Atlas agenda that has not only crept in, it's stormed in on the shores of Aotearoa and some may not understand what that means, but this is just the extension of the attack on the treaty, on the attack on Indigenous voices. 'We made the point the whole way through when we started to see that they weren't going to be able to meet us halfway on anything, even a quarter of the way, on any of the requests for tikanga experts, for legal experts when we knew the bias of the committee.' Ngarewa-Packer added that the Privileges Committee process was not equipped to deal with the issue. 'We hit a nerve and we can call it a colonial nerve, we can call it institutional nerve… 'I think that this will be looked back on at some stage and say how ridiculous we looked back in 2025.' Ngarewa-Packer also added that the language from Peters during the debate on Thursday was 'all very deliberate' – 'and that's what we're contending with in Aotearoa'. 'Everyone should have a view but don't use the might of legislation and the power to be able to assert your racism and assert your anti-Māori, anti-Treaty agenda.' Peters had taken aim at Waititi on Thursday as 'the one in the cowboy hat' and 'scribbles on his face' in reference to his mataora moko. He said countless haka have taken place in Parliament but only after first consulting the Speaker. 'They told the media they were going to do it, but they didn't tell the Speaker did they?' Peters added that Te Pāti Māori were 'a bunch of extremists' and that 'New Zealand has had enough of them'. 'They don't want democracy, they want anarchy,' he said. 'They don't want one country, they don't want one law, they don't want one people.'
Scoop
6 hours ago
- Scoop
The House: Parliamentary Week Achieves Two Out Of Three Goals
Sanctions against Te Pti Mori MPs were historic, but they weren't the only thing that happened in the house. , Editor: The House While Parliament's week was dominated by its final event – Thursday's debate on the report from the Privileges Committee into a haka performed in the chamber – the rest of the week focussed on other business that, while more mundane, was still worthy of note. The Government appeared to have three objectives for this week in the house. Crucial to the administration's continuance, the first goal was to successfully complete the initial debate on the budget. The long initial budget debate could no longer dribble on over weeks, so the house spent six hours of the week completing the second reading debate, which is the first debate a budget gets. The reading was accomplished and so the Government continues. This may sound silly, but a Government cannot survive, if the house votes against its budget. Agreeing to vote for budget and taxation bills are the 'supply' portion of the 'confidence and supply' agreement that is the foundation of any coalition agreement. The budget focus now turns to select committees and what is called 'Scrutiny Week', when ministers appear before various subject committees to defend their budget plans. Scrutiny Week begins on 16 June. Slow seconds A second objective was possibly not in earlier plans for this week – to finally polish off the bills originally slated for completion two weeks ago during budget week urgency. Then, the Leader of the House had asked the house to accord urgency for 12 bills the Government hoped to progress through 30 stages of parliamentary debate. The plan was ambitious and it did not succeed. Despite day-long sittings until midnight Saturday (when urgency must end), only two bills were completed, others were untouched, and 13 stages were unfinished or unstarted. This week's plan for the house had MPs returning to the well for more of the same. Just like last time, progress was at a snail's pace. After quite a few hours, the Government had slugged its way through just a few more stages. The plan was slowed to a crawl by bills' committee stages (formally known as the Committee of the Whole House). Committee stages are a crucial way for MPs to publicly interrogate the minister in charge of a bill. With patience, they can tease out a lot about both a government's development of legislation and its intended real-world impacts. Because the committee stage has no set duration, it is also a way for the opposition to make the Government really work for progress. The Government did achieve progress on the bills left incomplete from budget week, but again, it was probably not what was hoped for. They will need to come back yet again in three weeks to have a third crack. The Opposition is showing itself to be quite effective at the filibuster. The Government's third objective was to have the debate on the recent Privileges Committee Report on three Te Pāti Māori MPs done by the week's end. As Leader of the House Chris Bishop said in re-initiating the debate: 'My encouragement would be for everybody to finish this debate today. 'Have a robust debate, but let's end this issue once and for all, and deal with the issue and get back to the major issues facing this country.' That wish was fulfilled with apparent agreement from across the house. As 6pm neared, the MP who eventually moved that a vote be taken was Te Pāti Māori co-leader Rawiri Waititi. The frankly fascinating debate on the report will be reported separately.
