From small acorns, large trees may grow. At the post Cabinet press conference last Monday, the government announced its intention to underline the current ability of our courts to declare legislation to be in breach of the Bill of Rights (BORA). This might sound like a minor administrative matter. The fact that PM Jacinda Ardern brought along two Cabinet heavyweights – Attorney-General David Parker and Justice Minister Andrew Little – to field questions about the change, suggested otherwise.
What it signaled first and foremost, was that prisoners in the New Zealand could be about to win back the right to vote. All inmates of New Zealand jails were disenfranchised by the Key government back in 2010, a move that even Chris Finlayson (then National’s Attorney-General) found at the time to be a serious violation of prisoners’ rights under BORA. Finlayson’s formal evaluation was simply ignored by the Key government. At the time, National was more interested in pandering to the redneck law’n’order lobby.
Well, the Supreme Court is about to rule afresh on this matter, thanks to a case brought by career criminal and jailhouse lawyer, Arthur Taylor. Taylor lost in the Court of Appeal last year after arguing that the current ban on prisoner voting is particularly discriminatory to Maori, given that Maori are disproportionately represented in the prison population. On appeal, the Taylor case has now moved up to the Supreme Court. Now that National’s new leader has self identified as Maori, it would be interesting to know if Simon Bridges shares Taylor’s view that Maori are disproportionately affected by the current blanket ban on prisoner voting.
If Taylor should win his case, this leave the government in the embarrassing position of having to play catch-up to a court ruling which – given our uniquely thin constitutional framework – might raise a few ticklish questions about the relationship between the courts and Parliament. Therefore, Monday’s announcement went some way to safeguarding the primacy of Parliament, by signaling to the Supremes that it is definitely OK with the current government at least, for the courts to assert the importance of BORA, whenever existing legislation is in breach of it.
The politics of Monday’s move were also an attempt to checkmate any future attempt by National to paint prisoners winning back the right to vote as being symptomatic of a centre-left government going soft on criminals. If they regained the franchise, would most criminals vote centre-left? National would probably claim that Labour was only trawling for votes, among convicts.
Moreover, the main credibility problem for National running those sort of arguments would be Finlayson’s convincing opinion – as Attorney-General – that stripping all prisoners of the right to vote had been (a) a serious violation of BORA and (b) bad law to boot, on several counts. Once again though, National would probably ignore Finlayson, and play to the redneck vote.
Why should prisoners be allowed to vote? Arthur Taylor has had plenty of precedents to draw upon because currently, New Zealand is the outlier here. In recent years Canada, Australia and the United Kingdom have all recognized (in varying degrees) the right of prisoners to vote. Arguably, losing that right is neither a logical nor a desirable consequence of imprisonment, which is the actual punishment for the crime committed. Moreover, those other countries have recognised that the vast majority of prisoners will at some time in future, be returning to the community. Therefore, retaining the right to vote should be considered as helpful to the process of social re-integration.
At the time National’s law was passed in 2010, Werewolf did a long interview with convicted murderer and former prison inmate Rick Sauve – Arthur Taylor’s Canadian counterpart – who brought the successful case in Canada’s Supreme Court that restored the franchise to that country’s prison inmates. The Sauve interview can be found here.
Sauve provided a useful summary of the arguments for prisoners being entitled to this right, and the advantages to society of them being encouraged to exercise it. IMO, this was a key part of the Werewolf interview:
….Getting sent to prison means that people lose their right to a whole range of rights and freedoms. Why should the right to vote be held up as being something sacrosanct? “You go to prison for a punishment,” Sauve replies. “That is your punishment: the loss of freedom of movement. It really is severe. When you’re locked in your cell at night and you are all alone, that’s when you realize you’re really doing time. That’s also when you think about how you want to fit back into the community. I wanted to be able to fit back in. I wanted to show that I could make it, that I could be something other than my crime…”
By contrast, the removal of the right to vote is – he agrees – a way of saying to the prisoner that he or she is literally, a non-person. Given that most prisoners will one day be returning to society, how could it possibly be in society’s self interest to promote such an attitude? “I don’t think it is,” Sauve replies. “I know that a lot of people want revenge. They don’t necessarily want justice.”
Sauve continued: ‘I think that many people don’t seem to realize though, that prisons are a community. It is a small community but it is one, all the same. A lot of people do charity work while they are in prison. Does it mean that people in prison shouldn’t be allowed to help other people? That they shouldn’t be entitled to healthcare? Or that someone in prison shouldn’t be allowed to have contact with their family, who are out in the community? No, we don’t isolate people like that. Not any more. What we hope for as a society is that people – when they are inside prison – are going to start to embrace the norms of the free world. But if instead, you continuously tell people: we don’t want you; you’re not one of us; you shouldn’t have this, you shouldn’t have that…. Well, people constantly hearing that message are likely to act out. They really are.”
The options for reform
In 1993, prisoners in New Zealand were denied the right to vote if they had been incarcerated for sentences of three years or more. (Since a court ruling in 2007 his has also been the situation in Australia – after the High Court in Australia overturned 2006 legislation passed by the federal Parliament that was almost identical to what still currently exists in NZ.) In New Zealand, the Quinn Bill of 2010 extended that ban to encompass all prisoners in jail at the time of an election. So why did Chris Finlayson find so comprehensively against a Bill that his own government passed into law, regardless?
In his formal evaluation, Finlayson indicated that a blanket ban on prisoner voting would be inconsistent with section 12 of our Bill of Rights legislation. This section says that every citizen over the age of 18 has the right to vote and to stand for parliamentary office – apart from a fairly limited set of reasons set out in section 5 of the same Act, which the Quinn Bill failed to meet, according to Finlayson.
In fact, Finlayson argued, the supposed objective of the Bill – to deter serious offending – was ‘not rationally linked’ to the Bill’s own provisions to impose a blanket ban on prisoner voting. Reason being, serious offenders are already banned from voting by the existing law. As for everyone else: “It is questionable that every person sentenced to any period of punishment is a serious offender. People who are not serious offenders will be disenfranchised…” The blanket ban, Finlayson concluded, cannot be justified.
Having pointed out the irrationality of the Quinn Bill, Finlayson then went further, to show how unjust it would play out in practice. The avowed purpose of the Bill is to deter serious offending. Yet under its provisions someone sentenced to home detention would still be able to vote, but someone sentenced to jail for the very same offence would be disenfranchised. Moreover, a serious violent offender sentenced to two and half years in jail would not lose their right to vote if their sentence fell – purely by chance – into the period between elections. Yet by the same token, someone sentenced to a week in jail for not paying their parking fines would lose their right to vote, if they were unlucky enough to be sentenced at the wrong point in the electoral cycle. Justice, to state the bleedingly obvious, should not be reduced to such games of chance.
What will be the likely outcome if and when Arthur Taylor wins his case? Depending on the wording of the Supreme Court ruling, the Ardern government might prefer to embrace the safer political option of reverting to the situation created by National in 1993, which would still disenfranchise serious offenders. As mentioned above, this would bring us into line with the Australian position.
It isn’t enough. That same distinction is what happened at first in Canada, too. Initially, Rick Sauve won back the vote for all but serious offenders, and then had to go back to court to establish that the right to vote is an absolute right, and akin to citizenship. Similarly, if political timidity here meant that Taylor should win only a halfway house kind of victory, he might well have to go back to court to complete the task. Let’s hope that won’t be necessary. Ultimately, whether Arthur Taylor wins or loses in the Supreme Court, the current blanket ban on prisoner voting is an injustice that Justice Minister Andrew Little needs to address.
Footnote : As argued above, being allowed to vote should be regarded as being an absolute right, for those 18 or over. Eventually, if some prisoners choose not to exercise it, well… some people out in the community don’t vote, either. That’s hardly a reason for denying them the option.
Brexit: avoiding the NZ option
Terrific article here by British professor Vernon Bogdanor, who has become an influential part of the Brexit coverage. While Labour under Corbyn has advocated retaining membership of a customs union as part of a ‘soft’ Brexit option ( and/or as a softening up of British voters for the moment when Jeremy Corbyn calls for a second Brexit referendum) Bogdanor usefully explains just why the whole customs union idea is a fantasy.
One can see the attraction. Keeping the custom union offers Britain hope of retaining its current system of frictionless trade with the EU, while simultaneously evading the EU stuff that Britain doesn’t like (free movement of people, EU regulations etc) In detail, Bogdanor shows why this cherry picking won’t work – and offers how the EU manages its trade with Turkey as a chilling example of why not. Then out of the blue, Bogdanor also says this:
A hard Brexit – in which the UK retains complete freedom to diverge as much as it likes from the EU – would work only if we were to follow the example of New Zealand and seek to become a global hub by adopting a free-market policy of radical deregulation, drastic cuts in personal and company taxation, the ditching of agricultural subsidies, and the unilateral removal of tariffs. It is, however, difficult to believe the British public would be prepared for so drastic a dose of renewed Thatcherism.
Imagine that… ending up like New Zealand, which is still struggling with the social legacy from its 1980s experiment in self-imposed Thatcherism. Apparently, the rest of the world still regards us as a cautionary horror show, that no other sane developed country would want to emulate.
I know, discussing musicians via ‘sounds-like’ comparisons is a pretty lazy shorthand for avoiding the real work of music criticism. Still… at 20, Sidney Gish has tended to be inescapably pigeon-holed as Boston’s answer to NYC’s Frankie Cosmos, and/or likened to a young Regina Spektor. (Think jazz-influenced chords, sharp lyric writing, extensive vocal range.) Yet when pressed on her “influences” in this interview, Gish chose to cite Carrie Brownstein (and Brownstein’s great autobiography Hunger Makes Me A Modern Girl) as her chief inspiration, and as the culmination of the whole 90s riot grrrl period which – given her age – Gish has experienced only via historical research and projected passion. I’ve linked before to Gish’s endearing single/video for “Midnight Jingle” but today… it’s back to the source, for her cover version as a smitten 18 year old, of “Modern Girl” – one of Brownstein’s many works of genius for Sleater Kinney.
While we’re on the subject of cover versions, here’s one good track that isn’t. A couple of years ago, the LA singer/writer Colleen Green wrote and released a spookily intense EDM track called “Deeper Than Love” that dealt (lyrically) with romantic insecurity in the most direct fashion imaginable:
And the only best friends
I ever made
Were people I knew I didn’t have to see every day
The closest to true love
I ever came
Was with someone I kept many miles away
Cos I’m wary of eliminating distance
This could surely be the death of any romance
Cos I’m shitty and I’m lame and I’m dumb and I’m a bore
And once you get to know me you won’t love me anymore
And that possibility worries me the most
Not harm or abuse or becoming a ghost
It’s the closeness, the intimacy
I’m afraid, it might kill me…
In 2017, Green also went through a nightmare tour experience in Australia, which landed her in an Aussie detention centre.
Finally though – and from Spanish TV – here’s Green’s very personal take on the old 1960s hit by Little Peggy March called “I Will Follow Him.” In stark contrast to Little Peggy’s fevered excitement, this version conveys the disconnected state to which romantic obsession can take you…