Here's my case ... what's yours?

In which the author tries to show why he is right ... so nyah, nyah, nyah.

Apparently the way to get noticed in our present political discourse is to loudly use the terms "dumb" and "stupid". Not sure whether to be saddened about this fact about our society, or to feel an element of shame in stooping to meet those standards.

But anyway, my last post regarding Parliament's Law and Order committee's "whoopsie!" moment has jumped from just one man's angry rant on the interweb to a "real media" story. Hence this story on TVNZ last night, as well as this Herald one, and a bunch of others in equally important and prestigious forums (i.e. not other people's blog sites).

One of the good things that happens when the "MSM" starts showing interest is that politicians start having to answer questions about the issue. So John Key was asked about my claims at his post-conference news conference, while Sandra Goudie has had to defend her Committee's work before the TV cameras.

Both of them responded by pointing out that as yet my claims about the Committee's recommended changes to Paul Quinn's bill are just that - claims. And they indicated that they had received contrary advice about the effect of the committee's proposed amendments.

(Sandra Goudie then went a little further by claiming to be "unsure of [my] status as a lawyer or whatever, I understand he's a lecturer." Yes, Sandra ... I am but a poor, humble toiler in the groves of the academy. But even we hopelessly befuddled academic types occasionally can get it right.)

So given that there apparently is some measure of dispute about my analysis, here's the full basis for my claim that what the Law and Order committee proposes would, if finally enacted, let all currently serving prisoners in New Zealand, including the worst rapists, murderers and corrupt MPs, vote at the next election. It repeats my last post a little bit - especially my "update" at its end - but I think it's important to set out my case in full.

In New Zealand, the basic starting point is that every adult citizen has a guaranteed right to vote unless that right either is (1) limited in a manner prescribed by law that is demonstrably justified in a free and democratic society; or (2) is unjustifiably limited through a clear and unambiguously expressed enactment. That's the background context to our discussion - the right to vote exists unless and until the State can show it has (justifiably or otherwise) stripped it away through legislative means.

That general right is then given specific form in the Electoral Act 1993. Under this, "any person whose name lawfully appears" on the electoral roll may vote. So the "right to vote" is predicated upon being able to be enrolled on the electoral roll.

The Electoral Act then says that any New Zealand citizen or permanent resident over 18, who has lived in New Zealand for at least 12 months continuously, may enroll to vote (and thus subsequently cast a vote). The only exceptions to this blanket entitlement lie in s.80: if you fall within one of the classes of persons disqualified by this section, you cannot enroll (and thus cannot legally vote). Included in this section is the existing s.80(1)(d), which disqualifies those prisoners serving jail sentences of 3 years or more.

What is more, any person who is qualified to register to vote must actually do so on pain of receiving a $100 fine! So registration to vote (but not actually voting itself) actually is a legal duty for all adult NZ citizens or permanent residents not expressly disqualified from doing so under s.80. Finally - and this is important - the registrar of electors must register on the electoral roll any qualified person who complies with their legal duty and applies to be registered.

So - remove from this statutory matrix the existing s.80(1)(d) and replace it with a provision that only disqualifies prisoners sentenced after the amendment act is passed. What happens to prisoners who are NZ citizens/permanent residents of more than 18 years of age who already are serving sentences of more than 3 years when the change occurs? Let's work it through.

A previously disqualified prisoner becomes aware of the legal duty to register to vote - just because they are in jail doesn't mean they shouldn't be required to follow the law! So they get a registration form, which cannot be denied to them under prison rules if they are under a legal duty to register. They fill it out correctly, and send it off to the relevant registrar of electors (a moot point which district this would be in, but let's leave that for now). The registrar receives it.

On what grounds could the registrar fail to be "satisfied that [the] applicant for registration as an elector ... is qualified to be registered"?

It is no longer anything expressly stated in the Electoral Act 1993 - which is, remember, the only way that the State can strip the right to vote from a NZ citizen over 18. So the registrar has no other option but to enroll the prisoner, thus entitling him or her to vote.

That, in a nutshell, is my position. I think it's pretty convincing - and every other legally trained person I have discussed this with seems to find it convincing also. So what possible counter-argument is there?

Well, I've heard through the grapevine that officials think the Interpretation Act 1999 might come into play somewhere along the line. In particular, the current disqualification of prisoners may be a "penalty" that continues to apply even after the enactment imposing that penalty is repealed, or it may be an "existing status" that is not affected by the repeal of s.80(1)(d).

At the outset, relying on the Interpretation Act in this way is terrible, terrible lawmaking practice and quite at odds with contemporary standards of best practice for legislative drafting. For another, such reliance at the very least creates a potential ambiguity that screams out for judicial resolution ... in other words, it invites a court case which will cost the tax-payer some tens-of-thousands of dollars. And finally, I don't think it will work.

For one thing, disqualification of prisoners isn't really a "penalty" in the sense used in the Interpretation Act. it's rather a consequence of a particular penalty being applied (i.e. being sentenced to more than 3 years in jail). To regard disqualification per se as being a penalty would mean that NZ citizens who choose to live in another country for three continuous years are thereby "penalised" for their choice through having their right to vote removed (see s.80(1)(a)). And that's just silly - we don't "penalise" people for exercising their choice over where to live, we rather say "your disconnection with present NZ society makes it inappropriate for you to vote". So if disqualification under s.80 isn't a "penalty", then it can't continue once s.80(1)(d) is removed.

And to say that the "existing status" of disqualification lingers even after the provision imposing the disqualification is removed is nonsensical given the legislative matrix I've outlined above - to say nothing of the background NZ Bill of Rights Act issues. The idea that the State can deny the right to vote by implication, or by simply allowing a previous denial to carry on after the express statutory provision imposing it is repealed, is plain silly. For one thing, this argument means that if the State was to decide to allow all prisoners to vote (as it should do), it wouldn't be enough for it to simply repeal s.80(1)(d). Instead, the State would have to repeal s.80(1)(d) and then also expressly say "we are giving the right to vote back to all prisoners". And that just isn't how fundamental rights work ...  you have these rights in full unless and until they are expressly limited or removed, and if there is no such express limit or removal then there is nothing to prevent you enjoying them.

So, the Government may by all means seek legal advice on these issues. Because I'm pretty sure I'm right about what I've been saying.

Anyone think different?