Submission: Electoral (Registration of Sentenced Prisoners) Amendment Bill

Introduction

JustSpeak is a youth-powered movement of people across Aotearoa who advocate for evidence-based policy in New Zealand’s criminal justice system. We develop tools, resources, spaces and support to facilitate a public conversation on criminal justice informed by evidence and lived experience.

JustSpeak has reviewed the changes proposed by the Electoral (Registration of Sentenced Prisoners) Amendment Bill (the Bill). JustSpeak broadly supports the intent of the Bill, which is to remove the voting disqualification in respect of people serving a sentence of imprisonment of less than three years, and provide enrolment and access support for people in prison who are eligible to vote. However, Aotearoa New Zealand will not be truly democratic or human rights respecting if we continue to deny the right and responsibility of voting to New Zealanders sentenced to prison for three years or longer.

General comments on the Bill

• JustSpeak supports the Bill to the extent it allows prisoners who are serving a sentence of imprisonment for a term of less than three years to enrol to vote at elections and referendums if, under section 74 of the Act, they are qualified to be registered.

• However, we do not support the continued disqualification of people who are imprisoned for three years or more, from being able to enrol to vote.  In 2018 the Supreme Court declared that a blanket ban on prisoner voting rights is inconsistent with the NZBORA.  Additionally, the Ministry of Justice Regulatory Impact Statement recommended full enfranchisement, stating a core commitment of representative democracy is that all members of a society have an equal right to take part in selecting those who will make the laws for them.  We believe that all prisoners, regardless of the length of their sentence, should have the right to vote.

• The exclusion of people imprisoned for three years or more is not a logical distinction. People in prison are even more subject to the decisions and extraordinary powers of the state than the general population, as the COVID-19 crisis has aptly demonstrated and therefore ought to have a say in those decisions through the democratic process. The longer they spend in prison, the more subject they are to those decisions.

• The continued disqualification of people who are imprisoned for three years or more will have a disproportionate impact on Māori enfranchisement.  The Waitangi Tribunal found in its recent report He Aha I Pērā Ai? The Maori Prisoners’ Voting Report that the disqualification has a disproportionate effect on Māori and that failing to recognise, consider or respond to those consequences resulted in a serious breach of Te Tiriti O Waitangi. These unaddressed breaches will continue to affect Māori disproportionately: Māori were 11.4 times more likely to have been removed from the electoral roll than non-Māori in 2018. 

• The disqualification was also shown by the Tribunal to act like a de facto permanent disenfranchisement, as many people affected are not re-enrolling once leaving prison. By failing to take sufficient action to enable and encourage released prisoners to re-enrol, the Crown has further breached its duty of active protection.Given many people are not enrolled when they enter prison it would be consistent with Corrections’ rehabilitative and reintegrative duties to require them to enrol anyone entering a prison who is not already enrolled and provide civil education.

•  It is vital these issues are considered and addressed by the Select Committee.  The Tribunal found in the Select Committee process in respect of the 2010 amendment was a breach of Te Tiriti, by failing to consider the huge impact this would have on Māori voting and the Māori electoral option. 

Recommendations for specific changes to the Bill:

• We note the Bill does not address the ability of the New Zealand Electoral Commission to supply election education documents, or Corrections' obligation to allow election material into prison. It also does not address how the Electoral Commission would oversee the physical voting process for eligible incarcerated voters. While this is current practice for remand prisoners we recommend this is explicitly set out in the legislation, either under amendments to this Bill or to the Corrections Act.

• Corrections Prisons Operational manual states that people in prison are only able to see or hear party broadcasts if they fall during each prison’s normal radio or television listening or viewing hours. This seems insufficient to ensure that everyone in prison has appropriate access to relevant election materials, not just printed materials. 

• We therefore recommend the Bill creates a provision for the  Electoral Commission to have access to prisons and people in prison to oversee the appropriate provision of, and access to, all relevant election and political party materials. This ought to include relevant online materials which people in prison are less readily able to access. 

• We also recommend an express obligation is placed on Corrections officers and/or prison managers to allow election material into prison through additions to the Corrections Act.

•  We note that in clauses 86A(1) and 86C(2) the timeframes allocated to the prison manager to fulfil their enrolment duties are listed as "as soon as reasonably practicable". We are concerned at the ambiguity of this timeframe. It is also inconsistent with the Tribunal’s recommendation that “the Crown start a process immediately to enable and encourage all sentenced prisoners and all released prisoners to be enrolled in time for the next general election in 2020”.  

• We therefore recommend this is replaced with a concrete timeframe such as ‘within 10 working days of arrival’ to avoid ambiguity in these duties. 

• We note that clauses 86A(1) and 86C(2) do not specify how the prison manager must communicate the information on voting eligibility and the voting enrolment process.  Section 164(2) of the Corrections Act 2004 requires, in respect of information provided under the Corrections Act, to be presented “in such a way that the person under control or supervision can reasonably be expected to understand it”.  We recommend that clauses 86A(1) and 86C(2) contain a similar obligation.