Electoral (Registration of Sentenced Prisoners) Amendment Bill

There’s a huge irony that at the time the world is grappling with the crisis of the coronavirus, the Government is wanting to ram through Parliament, only six months out from an election, a bill to give prisoners the vote. Doesn’t that speak volumes about the priorities of the Government? Their preservation, because they think there might be a few more thousand votes from prisoners voting for them, is a priority for them over either respect for conventions around electoral law or, for that matter, the other issues that should be a priority for our Parliament.

Members on this side of the House come from a simple perspective, and that is that when people commit crime serious enough for a judge to imprison them, they lose particular rights in society.

💬 Hon Andrew Little: They’re the same judges that said they should have the rights.

The very basis—well, the member Andrew Little, who is interjecting and wanting to advance this bill, completely loses the plot around the issues of law and order and crime, and that is why it will be a big issue at the upcoming election.

The Minister has attempted to justify this bill on the basis of New Zealand Bill of Rights Act concerns. But his problem is that this bill still does not address the issues that some courts have raised about consistency with that Act. If the Government really wanted to ensure that our electoral law was compliant with the Act, it would go the full hog, and it would be providing for all prisoners to be able to vote, and not just those sentenced to less than three years. That’s a logical inconsistency in this bill.

But I further want to highlight that this is now the fourth bill that this Minister of Justice has advanced to override the conventions of developing electoral law on a cross-party basis. There were nine bills amending our electoral law under the previous Sir John Key - Bill English - led Government. Every one of those Government bills were built with cross-party support and consultation. The dangerous Minister of Justice in our current Parliament believes that electoral law is at the whim of the Government of the day, and if they can screw the rules to make it easier for the current Government to get re-elected, they will do whatever it takes.

This bill has, appropriately, been described by some commentators as Putinesque in the way in which it rides roughshod over those electoral conventions that we have. We are not a country that has a second House of Parliament. We’re not a country that has a constitution. The integrity of our electoral laws has depended on Governments, rightly, showing constraint about any changes in electoral law, and this Minister and members opposite are determined to do just whatever they wish in respect of electoral law. We changed the fundamental principle in this Parliament of only the voters being able to sack MPs, by giving that power to party leaders—something that Winston Peters desperately wanted, to control his own caucus. We passed a bill that took away from this Parliament its prerogative to determine what referendum will be held at general elections, a power that’s been taken away and only involves the executive or Cabinet. And earlier this year, we had the Government rushing through laws to enable people to be able to enrol and vote on the same day.

My next question for the Minister is this: why are you ramming this through in just three months? Why is it that the Government is so afraid of scrutiny? Nobody can reasonably argue that this issue of prisoner voting has suddenly come out of left field. The Minister of Justice made comments about it five years ago. Why is it that just six months before the election, when the polls show it will be a very tight election, Labour and other parties are wanting to screw the scrum and to gain every electoral advantage they can as a consequence of extending the right to vote to those people in prison, who are there because they have breached the laws, and breached the laws quite seriously?

The last part I want to really ask a member of the Government to justify is what is proposed in clause 8 of this bill, replacing section 115, in respect of the unpublished electoral roll. Is there anybody in this Parliament who believes that prisoners should have rights and protection above those of law-abiding citizens?

💬 Hon Willie Jackson: Oh, don’t be stupid.

Well, the member opposite, Mr Willie Jackson, interjects that it’s stupid. Well, that’s what this bill does. Mr Willie Jackson hasn’t read the bill. Let me hear what it says. If you as a citizen of New Zealand want to be on the unpublished roll, you have to satisfy the Electoral Commission that you meet a legal test, where it would be prejudicial to your safety. But if you are a prisoner, under this bill, you do not need to satisfy that test to go on to the unpublished and secret roll.

What sort of madness is it that we put rights in the law that are greater for those people who have offended, committed crimes, and gone to prison than for those law-abiding citizens? Only the warped minds of the current Government would ever introduce a bill to this House that somehow affords legal rights greater for those that have committed crimes and gone to prison than what an average citizen is able to enjoy. If the Government wants to change the law and to say that any person is able to go on to the unpublished roll, that would be fair enough, but to say that that provision is only to apply to those that have previously been in prison makes not an ounce of common sense.

The underlying philosophical problem with this bill is that the current Government does not believe in punishment. It does not believe that when people offend against the laws of the land, offend seriously against the laws of the land, sufficiently for a judge to sentence them to prison, they shouldn’t continue to enjoy all the rights that go with a free society.

My final point is I’d ask this Parliament to compare the British Parliament—

💬 Hon Willie Jackson: Sit down.

—the Australian Parliament. Isn’t it interesting? Willie Jackson says “Sit down.” Isn’t that the intelligence of his contribution—it is simply to silence those that might seriously question the policies of his Government that are failing.

The last thing is—and I’d love Willie Jackson to explain—why is the Government rushing through, against all the conventions, electoral law changes in the middle of an international crisis? Why is it rushing the law through? The honest answer, Mr Jackson, is singly this: you and your colleagues want to do everything possible to screw the rules for the 2020 election so that you might be re-elected. That is a very poor reason for this Parliament to rush such a law change.

What a stupid, idiotic pathetic, ridiculous speech. The reality is the underlying—

💬 Hon Member: Tell us what you really think.

Ha! What a ridiculous, pathetic speech. The—

💬 Alastair Scott: Answer the questions.

No, no, here’s the point, because the underlying philosophical message that we get there is the National Party don’t give a damn about prisoners or Māori—that’s undeniable, they don’t give a damn.

Tim van de Molen: The member’s an embarrassment.

No, the embarrassment is the National Party and the people who want to lock up people for ever and a day. It’s always, “Lock ‘em up. Throw the key away, don’t give a damn about the Māoris.” Well, you see, the tribunal that Nick Smith chooses to ignore—the Waitangi Tribunal—has come out very clearly. Nick Smith’s not interested in that because he’s not interested in Māori rights. It’s come out very clearly that this is a breach of the Treaty of Waitangi, but no one cares in National when they’re in Opposition. In fact, they didn’t even care when they were in Government. But the reality is here is that some of us who’ve had a lot to do with prisoners through the years, who’ve had gang members work for us at different times, believe in one thing, and that’s that they have to be given an opportunity—they have to be given an opportunity.

Now, I get it, Nick Smith, I’m not into supporting murderers, rapists, paedophiles—not at all.

💬 Hon Dr Nick Smith: This includes rapists.

Not at all—no, no. The reality is Minister Little has thought this out, we’ve thought this out, and we’re going down the middle ground. Some of our Māori advocates out there are saying this should be open slather, but no, we’re not doing that. A bit of common sense has come to the table from Minister Little.

💬 Alastair Scott: It’s not about race, Willie. It’s not about race.

It’s all about race, and the National Party don’t give a damn about what’s happening in prisons. Fifty percent of prisoners are Māori—50 percent of prisoners are Māori—and we have a tribunal ruling that’s very clear. We want some of these people to be given an opportunity to come back into society, to come back into New Zealand, to get access, to become normal New Zealand citizens, not just elite National Party members. We care about the people. We care about some of these prisoners who you don’t give a damn about. We care about Māori. Well done, Andrew Little. I congratulate the Minister and absolutely support it.

You just throw away the key; that’s why no one’s going to vote for you come September. Kia ora, Madam Speaker.

Kia ora. I omitted to say that that was a split call—Dan Bidois.

Well, all I can say to that statement is that at least on this side of the House we don’t tell Māori MPs to go back to Italy. So let’s come to the bill that we are here on today. Can I just say, at a time when businesses are going under, at a time when the anxiety is at its highest point in the last 10 to 15 years, at a time when our health workers are stretched, what are the priorities of this Government? To make it easier for people in prison to vote. I just think that is a shocking sense of priorities and reflects the incompetence of this Government that we have here today.

I’ve read the bill, unlike the member opposite, Willie Jackson, and I understand the purpose, of course. There is a sense that under the New Zealand Bill of Rights Act there is a limiting of freedoms to those that are prisoners, there are apparently breaches of the Treaty of Waitangi that have been raised that have a disproportionate impact on our Māori prisoners, and that it disenfranchises prisoners further. But what is not in this bill that I think is a key purpose of this proposed law is what isn’t in there in the first place, which is that this Government wants to make it easier for prisoners to vote at the next election. And it is for those political reasons and those alone that we are here today, shoving away more important priorities, whether it be COVID-19 or dealing with the effects of the economy.

Now, the purposes of prison are clear from where we sit. We suspend the rights of New Zealand citizens who commit a crime. They have broken the laws of our country and we suspend many rights, not just prisoners’ voting rights, because we want to send a signal to them that it is not OK to break the law, and that you are going to have your rights taken away from you to reflect on that, to do the time, as we refer to it, because we believe that that is the way to redemption.

We talk about redemption and rehabilitation, and this side talks a lot about rehabilitation. Of course we want to see prisoners rehabilitate in prison. That is why our prison system offers things like release to work or education and training opportunities for prisoners to, in fact, build up their skills and rehabilitate their way towards a better life. And we would encourage that on the political system. Why not have classes for prisoners around the importance of voting and the political process that we operate in New Zealand? Therefore, when they are released into the public, they will be engaged citizens of this country.

Another aspect of the debate that’s raised is around how we can help Māori. Well, how we can help Māori that are in our prison system is to teach them not to offend in the first place. We’ve got fantastic initiatives throughout the country. One of those is what my brother’s involved with in South Auckland. It’s called the Genesis Youth Trust, and it takes at-risk kids before they’ve offended and tries to provide wraparound services to keep them out of our criminal system. That is what we need to do to keep them out of the prison system to begin with.

We’ve got to keep these Māori in education, training, or employment to give them a sense of a better life, a life without crime, a life without breaking law, and that is the way we will keep these people out of our prison systems. But this Government has a different approach, an approach that says, “We’re soft on crime.”, where they want to let people out of our prison systems even if they’ve done a crime and broken the law, and where they have absolutely no other plan to reduce crime. So, Madam Speaker, we do not commend this bill to the House today.

Thank you, Madam Speaker. I just want to remind the House that this is a bill that means that people who are sentenced to less than three years in prison will have their voting rights restored. Why is that? It’s because the threshold of a three-year jail sentence means that those prisoners will be able to vote on the Government that will be in power when they are released. It undoes what was done by the then National Government in 2010.

💬 Hon Dr Nick Smith: It was a member’s bill.

And it was a member’s bill—and this is an interesting window into the National Party, actually, because it came out of a member’s bill by National MP Paul Quinn, which passed through the House. At the time, the former Attorney-General, Chris Finlayson, warned the House, warned the National Government, that it was likely against the New Zealand Bill of Rights Act. It still went ahead.

It’s really interesting listening to the predictable constitutional outrage of Nick Smith, who predictably gets up and gives the same speech he gives over and over again, while he conveniently forgets and ignores the history of this bill, which was followed by a report from the Waitangi Tribunal that said that the 2010 law disproportionately impacts Māori prisoners, is inconsistent with the Treaty of Waitangi, and also follows the High Court’s declaration, upheld by the Court of Appeal and the Supreme Court, that the current law is inconsistent with the right to vote in the New Zealand Bill of Rights Act 1990. Nick Smith ignores all of that, ignores the advice that was given by his own former Attorney-General. I bet he’s thankful that Chris Finlayson is no longer in this House, because he would be getting up and having a good say about this bill tonight.

Unfortunately, the National Party is now dominated by people that consider a punitive response, a punishing response, and what could even be considered a racist response to this sort of legislation is the right way to go. Thankfully, we don’t. We’ve done what we promised we would do, we’ve turned it around, and we’re going to get rid of it. I absolutely commend this bill to the House.

Thank you, Madam Speaker, for this opportunity to speak on the Electoral (Registration of Sentenced Prisoners) Amendment Bill. The legislation before us does involve a reduction of human rights, and as such, we must take that aspect seriously. The rights in question are, of course, those of prisoners, specifically those serving a sentence of less than three years, to be able to vote in New Zealand elections.

At the risk of stating the obvious, other rights are also curtailed in the fact of incarceration, most obviously, freedom of movement and to some extent those such as freedom of speech, and so on. So the question for the House, in considering the bill, is not whether or not it is appropriate to reduce the rights of those who have been incarcerated under the Crimes Act but whether or not such a reduction of rights is appropriate. I submit that to do that we need to consider both the type and nature of the reduction of the rights, and, of course, also, the extent, to test the reasonableness of what is being proposed.

Turning to the first of those: the nature of the right’s reduction. The right to vote, which sometimes we express as a responsibility to vote for those who are able to do so, is, of course, specifically geared to effecting the election of those who make laws for this country. And so it is that there is an argument around the disregarding of laws already duly made by those already duly elected at previous elections. The disregarding of those laws by those who are now incarcerated reduces the moral claim—if not necessarily the legal claim, which we’ll get to in a moment—of those who are imprisoned, having already opted out, at least to some extent, of a system whereby they contribute as members of the democracy, voting to install into this place people who make laws and then follow those laws.

It would be possible to characterise that in relation to the social contract concept that’s used in other contexts. I don’t pretend that it’s a perfect one, but it’s at least possible to analyse along the lines of mutual obligations—that a citizen obeys the laws of the land and in return has the right to elect those who will continue to make such laws or amend, repeal, and replace them, and so forth.

It’s worth noting in that context, that the laws that a person must have broken to have been imprisoned in the first place are those contained in the Crimes Act. I say that not just because of the seriousness of the nature of the offending but also because the Crimes Act is a codification of law. These are laws that everyone has the ability to know. They are not judge-made laws. They are written as opposed to being merely a matter of convention or being difficult to find by way of existing in different places, and so forth.

Crimes as well, almost by definition and certainly by a matter of good convention, are those which are non-retrospective, so there should be no one to whom this law would apply in relation to prisoner voting rights who is behind bars by reason of an accident such that they have been incarcerated for something that was not illegal at the time that they did it.

The final point about a person being behind bars for an offence that would potentially disqualify them from voting is that by reason of having offended against the Crimes Act they will have been judged along the way to have had the mens rea—that is, the mental intent to have committed that crime. So it’s not a light matter to send someone to jail in the first place, and so it is that the reduction of rights includes not only the freedom of movement but the freedom of speech in the sense that correspondence is limited, and so on. This is the context of the reduction of rights that currently exists in relation to prisoners.

That’s my reflections on the nature of the reduction of rights. As to the extent, well, the bill sets a bright line at the three-year mark. I suppose the justification would be, as Ms Curran has set out, that a person would be able to vote in the election that would install a set of lawmakers that would be in power—half of them, or slightly more than half, the Government of the day—on their release. But it’s also the case that we do have elections sometimes at intervals other than three years. We have by-elections. We have elections in a shorter period of three years. We also have the situation where it might be that a person who is serving a term of four years is only disqualified from voting in one general election. It might be that another prisoner incarcerated for four years misses out on just one. And so it is that the cleanliness of the rule, as is suggested by Government members so far, is at least a technical detail that the select committee should be examining very closely.

I am a member of the Justice Committee. There are a number in this Chamber who are as well. I acknowledge the chair, the Hon Meka Whaitiri. No doubt, these are issues that we will thrash out. But in the meantime, for the purpose of the current debate, setting out the principles involved in this law, I think it is important to note for the record that it is not necessarily the case that there will be one election and one election only for a person who is serving a term of less than three years.

Of course, we also have the other technical detail about the fact that a person who may be sentenced to more than three years may end up serving less than three years, in any case.

Looking at some of the other points that have been made across the House, I think they are serious points to be taken seriously and considered, and worthy of a response. For those of us interested in constitutional aspects, the first is the Supreme Court declaration that the disqualification—as it currently exists—places an unreasonable limit on the electoral rights guaranteed under the New Zealand Bill of Rights Act. The reasonableness, or otherwise, is a judgment call that the Supreme Court has made. Of course, reasonableness is famously subject to subjective evaluations, notwithstanding that it is intended to be viewed as an objective measure. So it is that I will make the general constitutional point that those who are sitting on the bench and not part of Parliament, not duly elected in the way that we 120 privileged members currently do, are making a judgment call in relation to the unreasonable limit that they see, and from a very different basis from this place. So while I would note the judgment of the court in that particular case, I would only place a certain amount of emphasis upon it, given that it is our right but also, again, our responsibility to make such judgment calls for ourselves.

It is also worth having a look at the Māori Prisoners’ Voting Report of the Waitangi Tribunal, as raised by a couple of members previously. The key aspect of that report for me was not only engaging with the disproportionate effect, as the tribunal found, but actually the non-enrolment of such prisoners at the end of their time. But that is actually something that I think we could consider separately very meaningfully. I’m pleased to say that the Justice Committee, in a different item of business—namely the election inquiry that was eventually completed—considered the question of enrolment for those who are in prison and then finish their sentence, having done the crime and then done the time, as the saying goes. We talked about options such as suspended enrolment, or perhaps automatic re-enrolment. Those are a couple of different mechanisms that could usefully be employed, even separately from the current bill before us, which is to say that we could address those shortfalls identified by the Waitangi Tribunal without passing this legislation.

Finally, I would like to highlight one other aspect of the proposed law, which is just in relation to what I would describe as a possible doctrine of equivalence. I don’t think that such a thing exists in the law necessarily at the moment, but the theory would be that—a person who is imprisoned for a breach of a law that impacts upon another person so seriously as to remove that other person’s rights, the victim’s rights. So it is, for example, if a person is murdered, then they don’t have the ability to continue to vote, and, while I wouldn’t advocate equivalence to be exactly any kind of reciprocity necessarily—an eye for an eye, a tooth for a tooth etc., leaving everyone blind, as the famous cliché goes—I think it’s a worthwhile consideration in terms of the overall context of those who have broken the law and those who are affected by it. So on this side of the House, we do not support the bill at this, the first reading.

Tēnā koe e Te Māngai o Te Whare. Ōtira, tēnā tātou katoa e ngā mema o Te Whare nei.

I’m pleased to take a call in support of the first reading of the Electoral (Registration of Sentenced Prisoners) Amendment Bill. I want to acknowledge all members who have spoken to it in the House this evening. Clearly, the bill is around returning the voting rights of prisoners who are serving less than a three-year sentence. This is a bill that’s returning us back to the state that the country was in between 1993 to 2010, and there’s been a few contributions from members that I just want to briefly touch on in reference to supporting this bill.

There have been some discussions around the constitutional rights of prisoners—whether they’re entitled to vote or not—and I just want to draw to the House’s attention that when the former National Government changed voters’ rights in 2013, the Attorney-General at that time, the Hon Chris Finlayson, did present to this Parliament, noting that disqualification was inconsistent with the electoral rights affirmed by section 12 of the New Zealand Bill of Rights Act 1990. It was further upheld by the High Court in the case Taylor v Attorney-General that disqualification was also inconsistent with the New Zealand Bill of Rights Act and issued a declaration of it being inconsistent. This again was appealed and upheld by the Court of Appeal and the Supreme Court, and some members in this House have touched on the further report of the Waitangi Tribunal that found the disqualification is a serious breach of the Treaty of Waitangi. So this bill is an electoral bill aligning itself to the New Zealand Bill of Rights Act and that’s why this side, and particularly myself, are standing in support of it.

In terms of the numbers, I just again touch briefly on the numbers of Māori in prison—over 50 percent of the male population and over 50 percent of the women population in this country are of Māori descent—given that we are only 15 percent of the population. So one area that I am particularly keen on, and this bill is addressing, is to increase Māori participation and to acknowledge that we have a justice system that has too many of our people locked up.

But this bill is in a range of reforms in which this Government particularly is trying to restore democracy in this country, particularly looking at prisoners serving, like I said earlier, the three years or less in their sentence. In the bill and in the address that the Minister of Justice gave, an area I’m particularly keen on as it comes to our select committee that I’m proudly the chair of is the one around the engagement of the Department of Corrections with prisoners about to be released. The Minister alluded to a more hands-on approach by officials in Corrections to ensure that as prisoners are transitioning from their under-three-year term they are fully informed around enrolling so that they can actually participate in the up and coming election, and I find it amazing that members of this House find that problematic.

All I want to say is that the whole purpose of the select committee is to properly scrutinise this bill, based on what the public will say in their submissions. And I do encourage people who may be listening to this debate that they do submit. It’s not something new that the Justice Committee has been considering because we considered prisoners’ voting rights when we did the local body elections and general election 2017 inquiry that we reported to the House. So there are some common themes that this bill has picked up from the earlier piece of work from the Justice Committee. But I’m, like many members, looking forward to this particular bill coming on our agenda and again opening up submissions to the general public so we can hear not only the concerns that some members of this House have raised, but just in general what the public think around retuning prisoner voting rights for those that are serving less than three years. On that note, I commend this bill to the House.