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Electoral (Registration of Sentenced Prisoners) Amendment Bill - Submission to the Justice Committee [2020] NZHRCSub 8 (24 April 2020)

Last Updated: 20 January 2021

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Submission of the New Zealand Human Rights Commission on the Electoral (Registration of Sentenced Prisoners) Amendment Bill

Introduction

1. The Human Rights Commission (“Commission”) welcomes the opportunity to make this submission to the Justice Committee (“Committee”) on the Electoral (Registration of Sentenced Prisoners) Amendment Bill (the “Bill”).

2. The Commission supports the overall intention of the Bill to improve prisoners’ access to the fundamental democratic right to vote. However, in order to fulfil New Zealand’s domestic and international human rights obligations concerning the right to vote and enfranchisement of voters, s 80(1)(d) of the Electoral Act should be repealed and voting rights reinstated for all prisoners.

3. The Commission previously submitted¹ to the Committee on the Electoral Amendment Bill in September 2019. This current submission should be read in conjunction with that 2019 submission.

4. The submission focus’ on some of the human rights impacts of this legislation, the importance of restoring the right to all prisoners and practical amendments to improve prisoners’ access to voting.

5. The Commission is available to appear before the Committee to speak to this submission and is also happy to provide any further information on the matters raised within it.

Human Rights Impact Assessment

6. In the Commission’s 2019 submission to the Electoral Amendment Bill, we detailed the importance of the right to vote and recommended the repeal of s80(1)(d) of the Electoral Act in its entirety.

7. The Commission agrees with the Ministry of Justice’s conclusion, in its detailed Regulatory Impact Statement prepared in relation to this Bill, that removing prisoner

1. Human Rights Commission, Submission on the Electoral Amendment Bill, September 2020, publicly available https://www.parliament.nz/resource/en- NZ/52SCJU_EVI_89712_JU68329/518d9cd3804929d28e2cc0a95cb0baefd4a947ce

disenfranchisement is the option most consistent with domestic and international human rights obligations and with Te Tiriti o Waitangi.²

8. This section of the submission will focus on the human rights impact this legislation will have on particular groups. Identifying human rights impacts and responding to these impacts in a way that best respects and protects the enjoyment of rights is an important component of the legislative decision-making process.

Human rights of prisoners

9. The Bill’s most immediate impact is on the rights of those serving sentences of imprisonment. It would reinstate a fundamental democratic right to one of the largest disenfranchised populations of qualified voters in New Zealand.

10. Re-enfranchising a large proportion³ of the prison population is a position that is supported by domestic and international human rights law and guidance.⁴

11. While the Bill itself does not further impinge on the rights of prisoners, it does not go as far as it could in terms of respecting or protecting the fundamental right to vote for otherwise qualified voters.

12. The right to vote is particularly important to prisoners because while detained, they are highly susceptible to the exercise of government power and have limited ability to engage with changes that impact them directly. Voting while in prison is also a pro-social engagement and can be used as a tool to encourage positive reintegration into society, which has benefits for the wider community.⁵

13. For these reasons, reinstating the right to vote for all prisoners would better reflect respect for and protection of the enjoyment of rights.

2. See Regulatory Impact Statement page 3 summary content “The Ministry’s preferred option, a removal of any disqualification of prisoners from voting, is compatible with the Government’s ‘Expectations for the design of regulatory systems’. The other options are mostly consistent with the expectations however, they do not support compliance with the Crown’s Treaty of Waitangi obligations and New Zealand’s international human rights obligations” at https://treasury.govt.nz/sites/default/files/2020-02/ria-justice-prtv- feb20.pdf
3. In the year ending 30 June 2019, 89% of sentences of imprisonment started were less than 3 years. See StatsNZ Prison and Community-Sentence Population: Annual Sentenced Prisoner Throughput for the latest Fiscal Years YE June 2019, publicly available on http://nzdotstat.stats.govt.nz/WBOS/Index.aspx?DataSetCode=TABLECODE7322.
4. See paragraphs [25] – [55] in the Opening Legal Submissions [to the Waitangi Tribunal] on behalf of the Human Rights Commission, attached to this submission.

⁵ See section 4.5 “Rehabilitation: A ‘Missed Opportunity’?” in WAI 2870 He Aha i Pērā Ai?.

Human rights of Māori

14. Data from the Ministry of Justice produced in the Waitangi Tribunal (WAI 2870) shows that Māori are not only disproportionately represented in the overall prison population, but they are also significantly more likely to be removed from the electoral roll.⁶

15. In the year ending June 2019, Māori made up 62% of people sentenced to imprisonment and 48% of people sentenced to terms of imprisonment over 3 years.⁷

16. Both the current prisoner voting prohibition, and the proposed amendment in this Bill will disproportionately impact Māori. This disproportionately was considered not only indirectly discriminatory by the Waitangi Tribunal, but also a significant breach of Te Tiriti.

17. In addition, the Waitangi Tribunal found that disenfranchisement of prisoners has a flow- on effect on the enjoyment of the right to vote in broader Māori communities.⁸

Victims’ rights

18. All members of the public, including those who have been victims of crimes, have the opportunity to submit on the Bill. However, there is no indication that removal of prisoner voting rights reduces crime or improves the position of victims. In fact, as discussed in the Waitangi Tribunal report on prisoner voting and recognised in the Ministry of Justice regulatory impact statement, voting in prison is suggested to be a responsible and pro- social behaviour, more likely to support rehabilitation and reduce future offending.⁹

19. Furthermore, by its very definition, a sentence of imprisonment deprives a prisoner of their physical liberty. This consequence, in itself, is the most severe type of punishment available and our sentencing laws have evolved to ensure that such sentences respond to varying degrees of offending. However, our sentencing laws do not directly contemplate, in terms of punishment and accountability, the removal of the right to vote, a civil right that can be exercised irrespective of whether a person is imprisoned or not. In this respect, the disenfranchisement of prisoners under the present Act does not align

⁶ See section 4.3 “Immediate Impact of the Legislation” in WAI 2870 He Aha i Pērā Ai?.

7. See StatsNZ Prison and Community-Sentence Population: Annual Sentenced Prisoner Throughput for the latest Fiscal Years YE June 2019, publicly available on http://nzdotstat.stats.govt.nz/WBOS/Index.aspx?DataSetCode=TABLECODE7322.

⁸ See section 4.4 “Ongoing and Wider Impacts of the Legislation” in WAI 2870 He Aha i Pērā Ai?.

9. See section 4.5 “Rehabilitation: A ‘Missed Opportunity’?” in WAI 2870 He Aha i Pērā Ai? and Ministry of Justice Section 4: Impact Analysis (page 19) regarding consistency with criminal justice principles of rehabilitation and reintegration.

with the purpose of sentencing under the Sentencing Act, which includes rehabilitation and reintegration alongside protection of the community.

Restoration of the right to vote

20. The advice from the Crown Law Office¹⁰ acknowledges that the right to vote is foundational to our democracy and weighty reasons must be given if its restriction is to be justified. The advice further states that the 3 years or more sentence threshold “serves the aims of deterring and denouncing serious criminality, and enhancing civic responsibility and respect for the rule of law”. ¹¹

21. The Crown produced no evidence in the Waitangi Tribunal to support the assumption that disenfranchisement deters offending or enhances respect for the rules of law. The Waitangi Tribunal “struggled to see any practical benefit to Māori, or the nation, from disenfranchising the prison population. [The Tribunal] discussed this with all counsel and were no better advised.”¹² As already noted, the Waitangi Tribunal found that prisoner voting in can encourages civic responsibility.¹³

22. In light of evidence to the contrary, the existence of any rational connection between disenfranchisement and reoffending rates is highly questionable.

23. In terms of denunciation, this principle in itself seems inadequate to justify such a significant limitation on a fundamental right. In the absence of compelling reasons otherwise, a rights affirming approach should be preferred and a universal prisoner enfranchisement policy adopted.

24. As indicated in the Commission’s submissions to the Waitangi Tribunal:¹⁴

1. A sentence of imprisonment should not deprive a person of their civil rights beyond those inherent in the sentence, namely freedom of movement and association;

2. Depriving someone of the right to vote under the Corrections Act undermines the purpose of the prison system;

10. See Corwn Law Advice on Electoral (Registration of Sentences Prisoners) Amendment Bill (22565/5.0) – Consitency with New Zealand Bill of Rights Act 1990.

¹¹ At paragraph 4.

¹² See section 4.7.1 “Kāwanatanga and good government?” in WAI 2870 He Aha i Pērā Ai?

¹³ See section 4.5 “Rehabilitation: A ‘Missed Opportunity’?” in WAI 2870 He Aha i Pērā Ai?

14. Opening Legal Submissions to the Waitangi Tribunal in WAI 2870 in 2019 on behalf of the Human Rights Commission, at paragraph 103, attached to this submission.
    100. There is no credible reason for denying a fundamental democratic right in the interests of further punishment; and

4. Ultimately, disenfranchisement has not proven to serve a valid purpose.

25. The former Attorney-General, the higher courts of New Zealand and the Waitangi Tribunal have found that the current disenfranchisement of prisoners is inconsistent with international and domestic human rights obligations and Te Tiriti o Waitangi.

Recommendation 1: Repeal s 80(1)(d) of the Electoral Act 1993 and amend the Bill to reflect the enfranchisement of all prisoners.

Improving access to the right to vote

26. In the event that Recommendation 1 above is not accepted, the following practical changes to the Bill would improve access to the right to vote.

27. The Commission has previously recommended that the Electoral Act be amended to ensure the Electoral Commission is notified by the Department of Corrections when a person is released from prison and that people are automatically re-enrolled following release.

28. We commend the amendments proposed in clause 7 requiring prison managers to facilitate the registration of prisoners as electors, particularly the consultation detailed in proposed new section 86C.

29. While consultation with prisoners about their registration as electors is important, we suggest further consideration of the approach detailed in subsections 86A(1)(b) and 86B(1)(b) which facilitate prisoner registration only after the prisoner has consented to have their details forwarded to the Electoral Commission.

30. This approach seems inconsistent with s 82 of the Electoral Act which makes registration as an elector compulsory. Registration of prisoners by Corrections should be opt-out, not opt-in. The Commission assumes that the Committee will have received detailed advice from the Electoral Commission about options for prisoners who (for example) are currently enrolled and options in relation to which electorate a prisoner can enrol in. Unless there are exceptional circumstances which are not overcome by s 86C(1)(c), we suggest the default position in ss 86A and 86B could be that prison managers provide a prisoner’s enrolment details to the Electoral Commission following the proposed consultations under ss 86A, 86B and 86C.
31. We also recommend reconsideration of the timing of registration conversations. Proposed new section 86B states that a prison manager must engage with a prisoner (serving a sentence of more than 3 years) about their voting rights before the person is released on parole or after serving their full sentence.

32. Evidence from former prisoners before the Waitangi Tribunal raised concerns around the current practice of prison staff who inform prisoners of their voting rights at the time of release.¹⁵ This same evidence also suggested that at the time of release, voting rights may not be top of mind for people re-entering society and who instead may be more concerned with reconnecting with their whānau, obtaining appropriate accommodation and employment, and ensuring they have the necessary support systems to reintegrate back into society.

33. In order to ensure prisoners are properly informed and cognisant of their voting rights, consultation should occur when prisoners have adequate time before release to engage meaningfully with the decision.

Recommendation 2: Amend proposed sections 86A and 86B to reflect the compulsory nature of s 82 of the Electoral Act 1993.

Recommendation3: Amend proposed section 86B (1) to ensure prisoners serving sentences of more than 3 years are informed of their voting rights at a reasonable time prior to release.

¹⁵ See footnote 34 and discussion in section 4.4.1 “A permanent disqualification?” in WAI 2870 He Aha i

Pērā Ai?.