Background
[6]
Before discussing the approach taken in the Courts below, it is useful to say a
little about the history of disenfranchisement of prisoners in New Zealand.6 We
essentially adopt the description of this aspect in the judgment of Heath J.7
Prisoner voting
[7]
The first point of reference is the New Zealand Constitution Act 1852 (Imp)
(the 1852 Act).8 Under that Act, the franchise was restricted to males over 21 years of
age who owned property.9 Relevantly, for present purposes, s 8 of the 1852 Act
provided that prisoners incarcerated for “any treason, felony, or infamous offence,
within any part of Her Majesty’s dominions” were prohibited from voting. The
Qualification of Electors Act 1879 extended the prohibition for a period of 12 months
after the prisoner’s sentence was completed.10
[8]
The scope of the prohibition changed under the Electoral Act 1905.11
Section 29(1) of that Act removed the extension of the period of post-conviction
disqualification but the class of offences to which the prohibition applied was widened.
Prisoners sentenced to death or to a sentence of one or more years of imprisonment,
amongst others, were added to the class of disenfranchised prisoners.
6
7
8
9
10
11
Jaqueline Hodgson and Kent Roach “Disenfranchisement as Punishment: European Court of
Human Rights, UK and Canadian Responses to Prisoner Voting” [2017] PL 450 at 450 note that
“Whether or not prisoners should enjoy the right to vote is a controversial subject in many
democracies”.
Taylor (HC), above n 3, at [16]–[26].
At [18], citing New Zealand Constitution Act 1852 (Imp) 15 & 16 Vict c 72 [the 1852 Act]. Of
the provisions in the United Kingdom dealing with prisoner disenfranchisement, the European
Court of Human Rights noted they “reflected earlier rules of law relating to the forfeiture of certain
rights by a convicted ‘felon’ (the so-called ‘civic death’ of the times of King Edward III)”: Hirst v
United Kingdom (No 2) (2006) 42 EHRR 41 (Grand Chamber, ECHR) at [22] and see [53]. See
also Greg Robins “The Rights of Prisoners to Vote: A Review of Prisoner Disenfranchisement in
New Zealand” (2006) 4 NZJPIL 165 at 166–167; and Andrew Geddis “Prisoner Voting and Rights
Deliberation: How New Zealand’s Parliament Failed” [2011] NZ L Rev 443 at 445–447.
The 1852 Act, s 7. The franchise was extended to Māori men by s 6 of the Maori Representation
Act 1867.
Section 2(4). At that point, the franchise was extended to all adult men, including those without
property: ss 2(1) and 2(2).
By this time the franchise had extended to women via the Electoral Act 1893.