(Mar. 6, 2020) On February 25, 2020, the New Zealand government introduced the Electoral (Registration of Sentenced Prisoners) Amendment Bill in the Parliament. The bill amends the Electoral Act 1993 to enable people sentenced to terms of imprisonment of less than three years to vote in the country’s general elections. This would reinstate the rule that applied prior to late 2010, when a bill was passed prohibiting all prisoners from being registered to vote. Since that time, the ban on prisoner voting has been found by the courts to be inconsistent with the New Zealand Bill of Rights Act 1990, and the Waitangi Tribunal has found that it breaches the government’s Treaty of Waitangi obligations to Māori.
Background
Te Ara – The Encyclopedia of New Zealand explains that
[p]risoners were denied the right to vote until the Electoral Act was amended by the Labour government in 1975. Their enfranchisement was brief – the National government reverted to the previous situation in 1977. The Electoral Act 1993 allowed for a limited prisoner franchise, though those serving a life sentence, preventative detention or a sentence of three years or more could not vote. From 2010 no prisoner imprisoned after 16 December of that year could vote.
The 2010 bill, which became the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010, was a private member’s bill that was supported by the National Party, the party that led the government at the time.
In 2015, the High Court declared, in Taylor v Attorney-General [2015] HC 1706, a case brought by five serving prisoners, that
Section 80(1)(d) of the Electoral Act 1993 (as amended by the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010) is inconsistent with the right to vote affirmed and guaranteed in s 12(a) of the New Zealand Bill of Rights Act 1990, and cannot be justified under s 5 of that Act.
Section 12(a) of the Bill of Rights Act provides that “[e]very New Zealand citizen who is of or over the age of 18 years … has the right to vote in genuine periodic elections of members of the House of Representatives, which elections shall be by equal suffrage and by secret ballot.” Section 5 provides that “the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
The Bill of Rights Act is not supreme law, and the courts are not empowered to “strike down” laws that they find to be in breach of its provisions. Therefore, despite the above declaration being subsequently upheld by the Court of Appeal (Attorney General v Taylor [2017] NZCA 215), and the Supreme Court also holding that the courts have the power to make such “declarations of inconsistency” (Attorney-General v Taylor [2018] NZSC 104), the ban on prisoner voting remained in effect. The Parliament is also not currently required to review legislation declared to be inconsistent with the Act, although the current Labour Party-led government has announced that the cabinet agreed in principal to introduce amendments to “provide a statutory power for the senior courts to make declarations of inconsistency under the Bill of Rights Act, and to require Parliament to respond.”
Separate from the above proceedings, the Waitangi Tribunal conducted an urgent inquiry into three claims that sought the repeal of section 80(1)(d) of the Electoral Act 1993. It released a prepublication version of its report, He Aha i Pērā Ai? The Māori Prisoners’ Voting Report, in August 2019. The Tribunal found that, in passing the 2010 law banning prisoners from voting, “the Crown has acted inconsistently with the Treaty principles of partnership, kāwanatanga [“governorship”], tino rangatiratanga [“self-determination”; “sovereignty”], active protection and equity, and prejudicially affected Māori,” who are disproportionately affected by the relevant provision (pp. 33–34).
Following the above developments, the current government announced in November 2019 that it would introduce legislation to restore the voting rights of prisoners sentenced to less than three years of imprisonment. The law changes would also “address the concern that prisoners are not re-enrolling [to vote] once they leave prison,” which had been raised by the Waitangi Tribunal.
Voting Rights and Registration of Prisoners Under the Bill
As indicated above, the new bill “amends the [Electoral] Act [1993] to allow prisoners who are serving a sentence of imprisonment for a term of less than 3 years to enrol to vote at elections and referendums if, under section 74 of the Act, they are qualified to be registered.” Those people “in prison for a sentence of imprisonment for 3 years or more, or a sentence of preventive detention, or a sentence of imprisonment for life, continue to be disqualified from being able to enrol.” In addition, the bill proposes changes aimed at assisting eligible prisoners, and those being released from prison, to register to vote:
When a prisoner is received into prison to serve a sentence of imprisonment of less than 3 years, if that prisoner is qualified to vote, a prison manager must, as soon as is reasonably practicable, engage with the prisoner and ask them if they want to enrol. If that prisoner consents, the prisoner must provide their enrolment details to the prison manager and the prison manager must forward those details to the Electoral Commission for processing. Enrolment information will be used by the Department of Corrections only for the purposes of transmission to the Electoral Commission.
When a prisoner sentenced to imprisonment for a term of 3 years or more is due to be released from prison, if that prisoner is qualified to vote, a prison manager must, as soon as is reasonably practicable, engage with the prisoner and ask them if they want to enrol. If that prisoner consents, the prisoner must provide their enrolment details to the prison manager and the prison manager must forward those details to the Electoral Commission for processing. Enrolment information will be used by the Department of Corrections only for the purposes of transmission to the Electoral Commission.
Ministry of Justice and Crown Law Advice
When the bill was introduced, the Regulatory Impact Assessment (RIA) prepared by the Ministry of Justice in November 2019 was released. In the RIA, the Ministry assessed four options for changing the law, including removing any disqualification from voting for sentenced prisoners (option 1) and returning to the pre-2010 law (option 2). The RIA states that
[t]he Ministry of Justice’s preferred option is to repeal section 80(d) of the Electoral Act 1993 and allow all sentenced prisoners to vote (option 1). This option would be the most consistent with the Treaty of Waitangi and the Bill of Rights Act 1993 and the most consistent with fundamental democratic values. This change would be consistent with the objective of maximising participation in the electoral system.
The approach chosen by the government, reflecting option 2 plus providing mechanisms to assist prisoners to register to vote, was analyzed by the Crown Law Office for consistency with the Bill of Rights Act. It concluded that the bill does not appear to be inconsistent with either “the right to vote affirmed by s 12 of the Bill of Rights Act, and the right to be free from discrimination (including on the ground of race) affirmed by s 19(1).” It considered that, while the bill limits the right to vote, “the limitation serves the aims of deterring and denouncing serious criminality, and enhancing civic responsibility and respect for the rule of law.” Furthermore, provisions in the bill that restrict the limitation to prisoners convicted of serious criminal conduct and only for the duration of their imprisonment, and the measures to assist prisoners to register to vote upon release, “means the limitation goes no further than necessary to fulfil those aims.”