By Sam Meyerhoff
“Were punishment made a right, there are two possible ways to formulate it: either as a right to be punished for the choices we make, or a right to punish those who wrong us.”
Earlier this year, the Equal Justice Project had the honour of making a presentation before the Justice Committee regarding the Electoral (Registration of Sentenced Prisoners) Amendment Bill. This landmark bill aimed to restore voting rights to prisoners serving less than three years in prison. However, in parliamentary debate, it received forceful pushback from the opposition party. At one point, the Hon. Dr. Nick Smith alleged that “the current Government does not believe in punishment”.
While it is fair to assume this is an exaggeration, it highlights a flaw in our legal and political system. Members of the legislature often mean different things when talking about punishment. For such a fundamental element of our justice system, the fact that the law lacks specificity with regards to punishment seems a grave oversight. What is punishment? What justifications are there for its existence? How should we treat it? These are all questions that, if answered with any level of precision, would ensure that the debate around the rights of criminals and victims had some common grounding that all sides could agree on.
Currently, New Zealand is uniquely situated to answer these philosophical questions through legal means. Our jurisprudence is well suited to further specificity regarding the nature of punishment and has the perfect vehicle for doing so: the New Zealand Bill of Rights Act 1990 (NZBORA). Quite simply, if punishment were made a right included in one of the most important parts of New Zealand’s constitutional landscape, we may see a philosophical and legislative breakthrough that has hitherto been only theoretical.
A Right to Punishment?
Were punishment made a right, there are two possible ways to formulate it: either as a right to be punished for the choices we make, or a right to punish those who wrong us. The first formulation is the one which best fits into our existing legal framework, but before discussing how to go about incorporating a right to be punished into the NZBORA, it is necessary to defend why it should be such a right at all.
At its most basic, the right to punishment would be aimed at protecting the interests of personal responsibility, autonomy, and dignity of the person. Punishment in a legal context is tied to choices. Legal doctrines like automatism and novus actus interveniens cover a wide range of circumstances but are all centrally concerned with ensuring people are not punished for that which they are not responsible, because punishment is an affirmation that someone is human enough and responsible enough to be held accountable for their actions. The American legal philosopher Herbert Morris has advocated for punishment being viewed as a right, stating that:
We treat a human being as a person provided: first, we permit the person to make the choices that will determine what happens to him and second, when our responses to the person are responses respecting the person’s choices.
This logic — that someone is only treated as a person when they are given the chance to make choices whose consequences they will have to bear — is reflected in New Zealand case law to some extent. Katz J, when writing on causation, has cited with strong approval English case law arguing that criminal law is premised upon notions of free will and autonomy. Additionally, since even before the enactment of the Act, New Zealand has written in United Nations reports that the main goal of our penal system is “the rehabilitation of the prisoner and the encouragement of self-respect and a sense of personal responsibility.”
Therefore, the right to punishment, the right to be justly held accountable, underlies a great deal of our existing law. By codifying this existing right, we would be taking existing jurisprudence and developing it in a way that would advance our country’s political stalemate, while also accomplishing several important goals.
For example, the utilitarian view of punishment would argue that the imprisonment or even execution of an innocent person is justified if such a system would produce the greatest amount of utility. Viewing punishment as a right attached to a person’s individual autonomy shows this view not only endangers the rights of innocent people, but also diminishes the worth of those being justly punished. Systems of punishment designed with utility in mind imply that those bearing the consequences of their actions are not being treated with respect or dignity but are simply unwanted integers whose effect on society can be altered or outweighed by others either through actions, or by being unjustly punished.
Consider a case brought by the cellmate of a prisoner who was mistreated. The case would be brought on the basis that by being punished alongside someone so wronged, the dignity and personal responsibility inherent in the plaintiff’s right to punishment had been disregarded, and their rights violated. By making punishment a right, the burden would be on the government and private prisons to ensure that they provided an appropriate environment for those serving sentences not only in an individual context, but communally.
Finally, by using punishment to affirm people’s autonomy, we would be implicitly rejecting any kind of barbaric treatment that seeks to change aspects of a person over which they have no control. The current government has a troubling record on its approach to conversion therapy, the affront to the rights of LGBTQ New Zealanders that pretends sexual orientation is a choice. This “treatment” simply would not stand in a society that recognised punishment as a right inseparably intertwined with actions that individuals have chosen to do. Because the NZBORA affects government actions, it would have no choice but to cut ties with any kind of process seeking to punish people for that which they did not choose or control. This is one benefit of a right to punishment that Morris seemed somewhat aware of even in 1968.
The New Zealand Bill Of Rights Act
The Normative Argument
What are the specific benefits of including a right to punishment in the NZBORA? From a normative perspective, the NZBORA is appealing as punishment is a function of the state interacting with the individual to uphold certain established values. Scholars have argued that one of the goals of punishment is to better unite the wrongdoer not with their victim per se, but with society as a whole. Therefore, since the NZBORA is concerned with mediating relations between people and bodies serving a public function, any change to how our legal system views punishment should naturally be grounded in it.
This choice is not without consequence. By placing a right to punishment in the New Zealand Bill Of Rights Act as opposed to the Human Rights Act 1993, the interplay between wrongdoers and their individual victims is lessened. The Human Rights Act deals with interactions between people, not people and the state. Therefore, it could conceivably frame a right to punishment as a right to punish those that wrong you, something the NZBORA would struggle to grant. The relationship between people and the state is undoubtedly at the heart of this conversation, but victim rights carry a great deal of pathos in Aotearoa.
While it is true that relying on the NZBORA may take emphasis away from victims, legislation such as the Sentencing Act 2002 ensures that victims’ voices are heard in the process of punishing wrongdoers. Additionally, if victims wish for legal recourse that puts more emphasis on their own relationship with the wrongdoer, the law of torts is a valid option. Torts actions are less focused on punishment per se, and courts are wary of allowing a defendant to be punished for the same act in public and private legal settings. However, they would ensure that victims had a path to find closure in the legal field even if punishment was developed to focus more on the bond between state and wrongdoer.
The Legal Argument
A “right” to punishment will undoubtedly be controversial and should be introduced only into legislation which already has other provisions that clearly show the role such a right would play. The NZBORA has two provisions which deal with punishment. Section 9 grants people the right not to be subjected to “torture or to cruel, degrading, or disproportionately severe treatment or punishment”. This complements s 23(5) which states that those deprived of liberty will be treated with humanity.
The presence of these two sections already lays out the basic shape of what a right to punishment would be. The courts have ruled that s 9 demands that no punishment be inhuman, while s 23(5) demands all punishment be humane. This distinction allows us to infer what the New Zealand courts see as being the definition of appropriate punishment. Developing the law of punishment through the vehicle of the NZBORA would allow for a smoother progression of the law as there would be fewer questions over how such a change would fit into the wider legal landscape.
Moreover, while a right to punishment would further political debate, it would be foolish to consider that society’s perception of punishment would thereafter remain in stasis. The NZBORA, from a legal perspective, manages to straddle the line between being a fiercely important part of our constitutional system, while also being relatively easy to amend. Despite having political significance, the statute is not entrenched, meaning any provision dealing with a right to punishment could be changed to better suit the social needs of the time.
Finally, Section 5 of the NZBORA also provides a necessary qualification on the right to punishment. As discussed, a right to punishment would be based on the value of autonomy, responsibility, and individual dignity. People should have the right to be punished for their actions and decisions. There is, however, one glaring flaw in this logic. Strict liability offences, while rare, undermine all of these values and would be complicated by a right to punishment. However, s 5 states that all the rights in the NZBORA` are subject to reasonable limitations which can be demonstrably justified in a free and democratic society. While it is impossible to know the exact response courts would have to this conundrum, it is conceivable that s 5 would alleviate any potential danger.
The Right in Practice
Legal systems across the globe have become aware of the reality that punishment as it is currently envisioned disproportionally impacts members of certain minority groups. Given that, in New Zealand, Māori and Pasifika people are more likely to bear the burden of legal punishment, be it through imprisonment, disenfranchisement, or a myriad of other forms, it is important to discuss how a right to punishment may impact everyday New Zealanders.
It is entirely understandable that this new view of punishment may be seen as reifying existing inequitable realities, but it is vital to remember that, as discussed above, inclusion in the NZBORA would make the right respected, but also flexible. There is no reason to believe that a right to punishment could only interact with our current Eurocentric view of sentencing. The High Court has ruled in the past that alternative paradigms like Tikanga interact with our legal system best through the lens of sentencing as opposed to through the criminal trial procedure. Legal scholars have remarked that this emphasises how New Zealand’s view of punishment is evolving. A right to punishment would therefore develop alongside the one area of criminal law which is best-suited to evolution over time.
Suffice to say that the right to punishment, if treated with the appropriate level of respect by the judiciary, would be able to move with Aotearoa on its journey to becoming a more equitable society. Indeed, part of the justification for implementing it would be to give future debates a more solid legal grounding, allowing for faster and fuller development.
The discourse around punishment in New Zealand politics has broken down. The major political parties cannot agree on what it means for our society, and without progress, issues like prisoner voting rights will continue to be political footballs, passed between successive governments. The right to punishment is supported by our existing jurisprudence. The law around causation, the New Zealand Bill Of Rights Act, and the way we discuss our penal system already shapes the outline of what this right may entail. Implementing this right would affirm our recognition of the fundamental autonomy, responsibility, and dignity of everyone affected by our legal system. It would open the door to new discussions around how we conceive of justice and the social contract.
 Electoral (Registration of Sentenced Prisoners) Amendment Bill 2020 (223-1).
 (18 March 2020) 745 NZPD 17199.
 Herbert Morris “Persons and Punishment” (1968) 52 Monist 475 at 492.
 R v Leaitua  NZHC 702 at .
 Initial reports of States parties due in 1980: New Zealand UN Doc CCPR/C/10/Add.6 (29 January 1982) at 112 (emphasis added).
 Sarah Robson “Pressure Mounts for Government to Ban Gay Conversion Therapy” RNZ News (online ed, Wellington, 10 July 2018).
 At 487.
 Linda Ross Meyer “Herbert Morris and Punishment” (2003) 22 QLR 109 at 119.
 New Zealand Bill of Rights Act 1990 s 3.
 Sentencing Act 2002 s 7(1).
 Stephen Todd (ed) The Law of Torts in New Zealand (7th ed, Thomas Reuters, Wellington, 2016) at 1.1.02.
 Taunoa v Attorney-General  NZSC 70 per Elias CJ at .
 Waitangi Tribunal He Aha i Pera Ai The Māori Prisoners’ Voting Report (Wai 2870, 2019) at 17.
 R v Mason  NZHC 1361,  2 NZLR 695 at .
Sam Meyerhoff is studying law and drama at the University of Auckland.
Disclaimer: The views expressed in this article reflect the author’s opinion and not necessarily the views of The Big Q.