Electoral (Registration of Sentenced Prisoners) Amendment Bill (No 2)

Madam Chair, thank you. I have a succession of questions which, in the spirit of committee stage debates as we run them these days, I’ll address in short order on each occasion. My first question to the Minister is whether a report was produced by the Attorney-General in relation to the question of consistency with the New Zealand Bill of Rights Act, first; whether any of the issues in the bill engaged such rights; and, if so, whether such consistency is achieved?

Oh, the Hon—

💬 Hon Andrew Little: Andrew Little.

CHAIRPERSON (Hon Anne Tolley): —Andrew Little—yes.

Thank you, Madam Chair—that’s all right.

CHAIRPERSON (Hon Anne Tolley): I was taking a breath—I was taking a breath.

Madam Chair, this is an answer that will possibly apply to many questions that the members opposite wish to ask tonight, if the second reading debate speeches are anything to go by, and that is this: the provisions of this bill have been before a select committee. The provisions of this bill were in the bill that was in the House last week, that bill was subject to examination and scrutiny by the Justice Committee, and so, in answer to that member’s question: the Attorney-General has provided advice in relation to identically equivalent positions in this bill that happened to be in a different bill—the bill passed last week. And that member can be reassured that these provisions are consistent with the New Zealand Bill of Rights Act, which is nothing less than the High Court, the Court of Appeal, the Supreme Court and the Waitangi Tribunal asked for.

To the Minister, is it not the case that the law requires that a bill that is introduced to the House be subject to consideration, at least, by the New Zealand Attorney-General as to whether its issues engage the New Zealand Bill of Rights Act?

Well, I suppose for those of us who live in the common-sense world, in the world of practicality, we don’t sort of do things over and over again if we can possibly avoid it. I can’t speak for this House of course, or members opposite, but we don’t want the Crown Law Office or the Ministry of Justice having to provide identical advice for a bill which is there trying to reinstate what was in a previous bill but for the fact that there was a little bit of, shall we say, bobsy-die at the committee stages thanks to members opposite. So I understand the point the member is making, but the reality is that member has recourse to advice from the Attorney-General that certifies that this bill is consistent with the New Zealand Bill of Rights Act.

Thank you, Madam Chair. So do I understand the Minister correctly that his view of a common-sense approach to lawmaking is more important than the law itself, in terms of the procedure that is to be followed with legislation being introduced in this House?

I can, in fact, assist the member, and indeed possibly even correct myself, that the Attorney-General has indeed provided advice. I have it in my hands—in relation to this very specific bill; that is, the No. 2 bill—and it confirms that it is consistent with the New Zealand Bill of Rights Act. It is dated 26 June.

Thank you, Madam Chair. To the Minister: is that publicly available?

It can be made available very shortly. We’ve just got to crank up the photocopier.

Thank you, Madam Chair. Does the Minister believe it would be helpful for that to be available to members of Parliament prior to the passage of legislation, or indeed its introduction more particularly?

I think it would be helpful if all members of the House could proceed on the basis that all members of the House vote in a consistent and principled fashion, but we’ve got past that part. So, look, the reality is that when events happen like the ones last week and we’re called upon in very short order to remediate them, processes don’t go as smoothly as they might otherwise do. But, with all due respect, particularly to that member, who commands an enormous amount of respect on the other side of the House because of the thoughtful approach to lawmaking that he takes, the reality is that whatever that member and his colleagues might say about members on this side of the House—whether members from the Green Party, whether me—the truth is that members on that side of the House bear responsibility for what happened last week, too. Do not demand of members on this side of the House perfection that that member and his colleagues have shown they’re incapable of demonstrating.

Thank you, Madam Chair. I am grateful to the Minister for his comments. Taking the Minister at his word, that that will be made available, can I ask, without having had the benefit of reading it, does the advice or the report of the Attorney-General state that the net effect of this legislation will be that the Electoral Act is consistent with the New Zealand Bill of Rights Act?

Yes, that is precisely what it does.

Thank you, Madam Chair. How can that be the case when the New Zealand Bill of Rights Act has been said to be inconsistent not only by our previous Attorney-General but also senior courts, as the Minister of Justice has referred to, in that it does not afford to all prisoners the right to vote and the net effect of this bill, including in conjunction with the previous bill, tabled last week, was such that some prisoners remain unable to vote.

Well, the member will know that what this bill does—this bill does not change the rules about qualification, or, for that matter, disqualification for voting or enrolling. That was last week’s bill. What this bill does is deal with the administrative end of it, which, because of the shenanigans that happened last week, means that the administrative provisions—that is to say, the duty or obligation or role of prison officers to give advice to prisoners who might otherwise be eligible to vote, and, indeed, the collection of information that is then forwarded to the Electoral Commission—are what we are correcting.

The other thing that is corrected is the removal in last week’s legislation of the power of the Electoral Commission to remove disqualified voters from the electoral roll. To the extent that this bill does those things, it upholds their right to vote in the New Zealand Bill of Rights Act, it is consistent with the New Zealand Bill of Rights Act.

Thank you, Madam Chair—in anticipation—and thank you to the Minister for that answer. But is it not true, then, that this bill fails to fix the problem that has been advertised to which it was supposedly the solution—namely, inconsistency with the New Zealand Bill of Rights Act?

No, that wasn’t the advertised objective. I’m not sure where that member and his colleague Mr Falloon are getting their advice from. They’re watching a different channel or something—I don’t know. But the stated objective of this bill was to correct the errors or the oversights or the inconsistencies of last week’s legislation.

So this bill is focused on two principal things, and one is the duties or obligations on prison officers to give advice to prisoners. So whereas last week’s legislation required prison officers to give advice to prisoners—all prisoners—regardless of length of sentence, that they were entitled to be on the roll when demonstrably they’re not, and to collect information and pass it to the Electoral Commission, that is fixed in this bill. The other thing that is fixed is whereas before—and, indeed, in the legislation passed by the National Government in 1993—the Electoral Commission had the right to remove from the roll disqualified voters, that power is being reinstated in this bill.

Those are the things that are happening in this bill. Whatever else that member thinks was advertised, he’s got the wrong advertisement or the wrong product, or he is watching the wrong channel. But what I said about this bill is what is happening.

Thank you, Madam Chair, and, again, thank you to the Minister. If it is not relevant to the passage of this particular piece of legislation that prisoners should have the right to vote as determined by various senior courts, why have the Minister and other Government MPs been referring to that numerous times throughout the legislation—throughout the passage of this bill tonight?

Well, I think it is a matter, ultimately, for the Chair but it has been correct for members on all sides of the Chamber to put some context around the legislation. Most members, I think, have spoken to the legislation, but I can’t account for it and it’s not my responsibility, particularly for members opposite and the contributions they make. If the member is concerned about what some of his colleagues have said—and I agree with him; he should be concerned about them—that is a matter for him and his caucus.

Is the Electoral Act, which this amendment bill seeks to amend, going to be consistent with the Treaty of Waitangi—as in, I suppose if I were to rephrase the question: does the Minister expect that the Waitangi Tribunal would consider that the Electoral Act, which this bill amends, will not represent a breach of Te Tiriti o Waitangi following the passage of this bill?

I thank the member for his question about Te Tiriti o Waitangi. The truth is the Waitangi Tribunal recommended that the disqualification on any prisoner be removed. That was the Waitangi Tribunal, and it laid out a case for that, and it said that Māori who are deregistered, if you like, or dis-enrolled from the electoral roll are nearly 12 times more likely not to re-enrol, and therefore to vote, than Pākehā who were affected by the legislation. In any event, as the member knows—as, indeed, the Government of the day did in 1993—a judgment gets made about what fits a modern democratic principle. A principle that can be easily defended, because I think New Zealanders understand—which might explain why 78 percent of submitters to the original bill supported it—is that those who were in prison in one election and who, by dint of the fact they were on a sentence of less than three years, are guaranteed to be out of prison by the next election must have a right to have a say on who is leading the country that they are going to be released free into. That is the underlying principle of this bill.

Thank you, Madam Chair. I’ve listened very carefully to the Minister’s answers to those questions from my colleague Chris Penk, and the Minister of Justice tried to assert some sort of shambolic behaviour on behalf of the National Party in his comments. I’d like to ask the Minister: why did he not support the motion by the Hon Nick Smith to put the bill back to select committee after the committee of the whole House last week?

The member asked a very good question, and the member may or may not know that when the original bill—the one that was passed last week, in its deformed state—went to the select committee, because the select committee was split, was equally divided, it could not make a decision on the bill, including an obvious improvement to it that actually members opposite wanted, and so the bill was returned unchanged. Of course, there was no guarantee or indication that were that bill to be returned to the select committee, the select committee was in any better position to do anything other than what it did before, which was not make a decision and refer the bill back to the House unchanged. On that basis, given the track record of that committee in its handling of this legislation, there was no merit at all in returning the bill to that select committee.

So why did the Minister then pass the bill and vote for it in the third reading, knowing that it was a flawed bill?

Well, any number of members could take responsibility for the flaws in the bill, but actually a lot of it sits on that side of the Chamber. In any event, the bill was passed and it was very clear that it could be fixed. That undertaking was given that night, because all parties in Government accepted that it needed to be fixed. That was the commitment we made to each other and we have done that. There are no Supplementary Order Papers to pollute or contaminate this process and we are in the process of correcting the flaws in the bill.

I’d like to ask a question around clause 7(5), where it says “If, at any time after a prison manager sends a prisoner’s information to the Electoral Commission, the overall length of a prisoner’s sentence or sentences of imprisonment changes in a way that results in the prisoner becoming disqualified for registration as an elector under section 80(1)(d), the prison manager must advise the Electoral Commission.” I’d like to ask the Minister whether that in effect means that if someone commits an offence whilst they are in prison and they are then given an additional sentence, which puts them above a three-year sentence, which means they would be technically disqualified—does this actually disqualify them from voting or does this provision just simply mean the prison manager must advise the Electoral Commission of that and then the Electoral Commission must do the disqualification?

I invite the member to read the clause very carefully. There could be any number of reasons why a prisoner’s sentence changes, and, therefore, pushes them into disqualification territory. It might be that previous charges, not previously tried or considered by the court and, therefore, not the subject of the sentence that landed that prisoner in prison in the first place, may have been processed and an additional sentence added. It may well be that the Crown appealed the sentence because it considered that the sentence was too short and the prisoner got a longer sentence. So any of those things could apply.

In any event, the clause is very clear: it is the prison manager who must do that at such point that the prisoner’s sentence, as amended, pushes them into disqualification territory, and for the benefit of all members of the committee of the whole House, can I just record that. I understand the Attorney-General’s advice has now been put on the Table.

Thank you for the answer to the question. So when the prison manager advises the Electoral Commission, what action does the Electoral Commissioner have to do?

Well, I would have thought it stands to reason that because the change in sentence, in accordance with the clause, results in the prisoner becoming disqualified for registration, then upon advice from the prison manager, the Electoral Commission—assuming this bill passes and the Electoral Commission wins back the power to remove disqualified voters from the roll—then that prisoner will be removed from the roll. That would have been the case last week, but the National Party voted against that.

I’d like to turn the attention to the issue of prisoners running for Parliament, and I know that was an issue which has been discussed earlier, because it’s a serious issue. It’s an issue, and I’d like to ask around whether—and I guess my question is not so much around—

CHAIRPERSON (Hon Anne Tolley): It’s not in the bill.

I know it’s not in this part, but the question I would like to ask is whether anything in this part precludes prisoners from standing for Parliament and their registration. So it’s an issue which I think is very important, because we’re talking about serious offenders.

CHAIRPERSON (Hon Anne Tolley): It’s not relevant to this bill.

I’m asking the question whether anything in this part precludes a prisoner from being able to stand for Parliament, because I think that’s a question that people would like to—

CHAIRPERSON (Hon Anne Tolley): Well, it may well be a question that people would like to know, but it isn’t relevant to this—

Well, does anything in this part preclude—

CHAIRPERSON (Hon Anne Tolley): Sorry, it isn’t relevant to the bill before the House. It might be a question of interest, but, actually, the Minister is not required to address issues that are not before the House. This bill has a particular purpose, and it doesn’t include that.

I’d just like to record, first of all, that I’m grateful for the circulation of the report from the Crown Law Office in relation to the Electoral (Registration of Sentenced Prisoners) Amendment Bill. The good news is that I have that in my hand; the bad news is that it seems to be a previous version thereof. The more substantive point is that—as the Minister has said, the issues engaged are the same as the bill that was passed last week, so I don’t intend to be painful on that point. Although, I do just note for the committee that the date of the letter is 14 February 2020. I note that’s St Valentine’s Day, so I hope that I’m not embarrassing myself and the Attorney-General by bringing to the public attention that he’s perhaps deliberately sent me a note along those lines. Either that, or it’s a mere issue of photocopying that the wrong one’s gone through.

But, in any case, I think the Minister makes a fair point that, indeed, the issues were canvassed in this document. Alternatively, of course, someone is very prescient, knowing that all this time later there would be an error such as we witnessed last week, such that this would be required. But in any case, obviously it’s essentially the same report, so I don’t intend to engage further on that. I would just note, however, moving to one further point in relation to Part 1, I wonder if the Minister would confirm whether the enrolment information to go to the Electoral Commission would affect the position, with regards to prisoners under three years of incarceration voting in DHB elections and alcohol licensing trust elections.

Thank you, Madam Chair. Yes, as I understand it, it will apply to local body elections, such for DHBs and councils.