TOP Submission on Prisoner Voting Rights

Summary

The Opportunities Party supports the Electoral (Registration of Sentenced Prisoners) Amendment Bill.  There are currently insufficient constitutional protections of fundamental rights.  The 2010 voting ban for prisoners serving less than 3 years in prison should never have passed, in circumstances where the Attorney-General advised Parliament that it was an unjustifiable breach of the New Zealand Bill of Rights Act 1990 (Bill of Rights), a position the Supreme Court in 2018 has also confirmed.  It now falls to Parliament to pass this Amendment Bill, as the only legal mechanism to rectify this breach.  The Opportunities Party considers the inconsistent and illogical outcomes of this law undermine any justification presented; the social implications of disenfranchisement do not support rehabilitation or reintegration of offenders back into the community, which risks increasing the rate of re-offending; and finally, the ban effectively locks a group of people out of our democratic system, in which Māori are disproportionately represented.  We must work even harder to ensure all of our citizens meaningfully engage with society and our democratic processes. 

Constitutional failure

The legislative change in 2010, under the Electoral (Disqualification of Convicted Sentenced Prisoners) Amendment Act (Prisoner Voting Ban), that removed the right to vote for prisoners serving less than 3 years imprisonment, is a clear example of how our constitutional framework is inadequate to protect individual rights and freedoms.  

The Bill of Rights forms part of our constitution, however it is no more legally protected than any other piece of legislation.  Not one section has been entrenched.  Although it attempts to confine limitations on rights and freedoms to only those that can be “justified in a free and democratic society” (s 5), there is no legal impediment to prevent Parliament from passing any law that is inconsistent with it, or that unjustifiably limits those rights. 

In practice, this has meant that despite the Attorney-General in February 2010 providing thorough advice that the Prisoner Voting Ban was inconsistent with the Bill of Rights, and was an unjustified limitation of the right to vote, Parliament was free to ignore such advice, as the National government did, and passed the infringing legislation any way.  It then falls to the Courts to interpret all laws consistently with the Bill of Rights, where possible (s 6).  Where a consistent interpretation is not available however, the Courts must nevertheless enforce the inconsistent legislation as Parliament intended (s 4).  The only remedy available in such a case, is that the Courts may issue a declaration of inconsistency.  That is exactly what has happened in relation to the Prisoner Voting Ban, where the Supreme Court in 2018 upheld such a declaration.  

To summarise then, despite both the Attorney-General in 2010, and the Supreme Court in 2018 declaring that the 2010 Prisoner Voting Ban is an unjustified breach of the Bill of Rights, there is no constitutional mechanism to restore the right without Parliament enacting legislative changes.  This is a strong example for why The Opportunities Party supports the adoption of a written constitution, to limit Parliament’s ability to legislate against individual rights and freedoms without robust checks and balances.  

We cannot pick and choose which rights we will fight for.  The right to vote should be as protected as any other right, including the right to free speech, and peaceful assembly.  When even the highest Court in our country has no ability to adequately protect against what it considers to be unjustifiable breaches of fundamental rights, we must change the system.  But that requires universal protection for all rights, for all citizens.  Not just the rights that suit our political or religious persuasion. 

The Prisoner Voting Ban is an unjustified limitation on the right to vote

In practice, the operation of the Prisoner Voting Ban is irrational and illogical, and is therefore not a justified limit on the right to vote.  To justify limiting any right, doing so must first have an important purpose or objective; and second, there must be a rational and proportionate connection between the provision and the objective.  That does not exist here, when we are talking about prisoners serving less than a 3 year prison sentence.

Firstly, the stated purpose of Prisoner Voting Ban was to punish offenders of serious crimes.  It seems the argument there was that all prisoners must have committed a serious crime and that justifies a total loss of enfranchisement.  To define a “serious crime” as any offence that results in a prison sentence is ludicrous.  Minor offences can result in prison sentences for a vast range of reasons (including unpaid fines, or breaches of community work). But that in no way means the crime committed was itself serious, such that disenfranchising them can be in any way justified.  There is simply no logical basis to argue that a person who has been sentenced to a term of 2 weeks, or even 2 months has committed a ‘serious crime’ by community standards.  And yet, disenfranchisement for those people can occur simply because of the randomness of the Court’s timetabling system for sentencing matters. As stated above, this is completely irrational and illogical.  

Even on the crudest notions of fairness, the law allows for a prisoner who has been in prison for 10 years and released on September 18 2020, to vote the next day, yet a person imprisoned for 2 weeks the day before has this right taken away from them.  That does not make any sense.  What of the fact that New Zealanders living overseas retain their right to vote, despite not living under its consequences… compared to a prisoner released a month after the election, had no say in its outcome, and yet will be living under its consequences.  Such inconsistencies completely undermine the credibility of the Prisoner Voting Ban.  It must be revoked.

Social consequences of this ‘punishment’

We acknowledge that there are a number of people who consider that all prisoners deserve to lose their right to vote as punishment for their crime.  But we must ask the question, what purpose does such retribution serve?  Responses from both ends of the political spectrum will echo that what we really want to see, is a decline in our offending and re-offending rates.

To achieve that, we cannot simply impose laws, with no evidential basis, because it feels good to punish people.  The research consistently shows that punitive measures do not work in reducing re-offending.  In particular, there is no evidence that losing the right to vote will reduce the risk of future offending, or in any way promote prosocial behaviour (WAI 2870, HE AHA I PĒRĀ AI? The Māori Prisoners’ Voting Report, 2019).  So what then, is the point?  

What our society needs, is for prisoners to be able to re-enter society, and constructively engage with their community and the law.  When individuals meaningfully engage in shaping society, we can support their rehabilitation and reintegration when they leave prison. Disenfranchising a group of people, who have already turned away from society, engaged in anti-social and criminal behaviour, will only serve to further repeat that pattern of behaviour.  If we truly want to reduce re-offending rates, then there is no room for punishment for punishment’s sake.

Democratic rights

The right to vote is tantamount to a free and fair democracy.  At its most basic level, it is a power of every citizen to have a say in the rules that will govern their life for the following 3 years.  The Prisoner Voting Ban precludes those prisoners from exercising that power, even though they will be out in society, and subject to the same rules and regulations as every other citizen.  The bigger problem we have, is the evidence has shown that the ban is not temporary, and has operated as effectively a permanent disqualification, in many cases, due to the low rates of re-enrolment after release (WAI 2870).  

If the effect of this law has been to permanently obstruct a group of citizens from voting, that is not only inconsistent with other individuals with previous convictions, but who can vote, but also an unjustifiable consequence of this law.  This is particularly important when considering that the ban disproportionately disenfranchises Māori, who are overrepresented in the prison population, and already have lower voter turn-out rates.  We must work even harder to ensure all of our citizens meaningfully engage with society and our democratic processes. 

Shai Navot, Justice Spokesperson for The Opportunities Party (TOP)