Electoral Amendment Bill - Submission to the Justice Committee [2018] NZHRCSub 7 (20 September 2018)

Last Updated: 19 October 2019

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Submission on the Electoral Amendment Bill

20 September 2018

Contacts:
Janet Anderson-Bidois	Jaimee Paenga
Chief Legal Advisor	Legal Officer
Human Rights Commission	Human Rights Commission
[e-mail]	[e-mail]

Submission of the New Zealand Human Rights Commission on the Electoral Amendment Bill

Introduction

1. The Human Rights Commission (“Commission”) welcomes the opportunity to make this submission to the Justice Committee (“Committee”) on the Electoral Amendment Bill (“the Bill”).

2. The Commission supports the purpose of the Bill particularly the intention to improve enrolment and voting processes to better enfranchise voters. However, in order to fulfil New Zealand’s domestic and international human rights obligations concerning the right to vote and enfranchisement of voters, s 80(1)(d) of the Electoral Act must be repealed and voting rights of prisoners reinstated.

3. The Commission is available to appear before the Committee to speak to this submission and is also happy to provide any further information on the matters raised within it.

The Right to Vote

4. In his 2019 letter of transmittal to the current Government, the Presiding Officer of the Waitangi Tribunal inquiry into prisoner voting stated:¹

It is trite and obvious that the right to vote is a fundamental right in a modern democracy. That right is not to be hampered or diminished except where it is absolutely necessary because of something in the nature of an emergency. It becomes more serious when the restriction or removal falls disproportionately upon a particular group. The wrong is exponentially increased when that group has a Treaty with the Crown that guarantees that a circumstance of this type will not happen.

5. This statement reinforces the findings in the High Court, Court of Appeal and Supreme Court that “the right to vote is arguably the most important civic right in a free and democratic society.”² It is a right affirmed in the New Zealand Bill of Rights Act 1990 (Bill of Rights Act) and the International Covenant on Civil and Political Rights.

1. Waitangit Tribunal, He aha i pērā ai? The Māori Prisoners’ Voting Report, Letter of Transmittal by Presiding Officer, Juge Savage, August 2019.
2. Taylor v Attorney-General [2015] NZHC 1706; [2015] 3 NZLR 791, at [2], left undisturbed by the Court of Appeal and referred to as fundamental in the Supreme Court, Attorney-General v Taylor [2018] NZSC 104; [2019] 1 NZLR 213, at [15].
6. While it has been accepted that the right to vote is not absolute, section 5 of the Bill of Rights Act requires that the right must “be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. Any inquiry under section 5 into whether a right has been reasonably and justifiably limited must consider:³

1. Whether the limitation serves an important and significant objective, and

2. Whether there is a rational and proportionate connection between the limitation and the objective it is trying to achieve.

7. In 2010, when the Electoral (Disqualification of Convicted Prisoners) Amendment Bill was being introduced to Parliament, then Attorney-General considered the Bill inconsistent with s 12 of the Bill of Rights Act and that it cannot be justified under s 5 of that Act.⁴ The Commission came to a similar conclusion in its submission to the Law and Order Committee.

8. The Senior Courts of New Zealand and the Waitangi Tribunal have found unequivocally that the current ban on prisoner voting under s 80(1)(d) of the Electoral Act 1993 is inconsistent with the New Zealand Bill of Rights Act 1990.⁵

9. The Waitangi Tribunal has inquired further and determined that not only is the current prisoner voting ban a breach of the Treaty, but so too would a return to the limited prisoner voting ban in place prior to 2010.

10. In submissions to the Waitangi Tribunal, the Commission took the position that any limitation on the right of prisoners to vote was:

1. Inconsistent with international and domestic human rights obligations;

2. Inconsistent with the rehabilitative purpose of the prison system;

100. Disproportionally impacted Māori; and

3. The Supreme Court developed this test in R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1, (2007) 8 HRNZ 222.
4. Hon Christopher Finlayson, Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Electoral (Disqualification of Convicted Prisoners) Amendment Bill.
5. The Commission appeared as an intervener in the Taylor cases before the Court of Appeal and the Supreme Court as well as The Māori Prisoner’ Voting Inquiry before the Waitangi Tribunal.
   4. Has no rational or proportionate connection to an important objective seeking to be achieved.

Recommendation 1: Repeal s 80(1)(d) of the Electoral Act 1993. Promoting the right to vote

11. In the Waitangi Tribunal, counsel for the Crown accepted that s 80(1)(d) in practice, operates as a de facto permanent disqualification due to low rates of re-enrolment upon release.⁶

12. The Tribunal also accepted that prisoner disenfranchisement had a ripple effect, which not only impacted their personal voting habits but also those of their whānau and community.⁷ For these reasons, the Tribunal recommended the Government immediately initiate a process to enable and encourage all sentenced prisoners and all released prisoners to be enrolled.⁸

13. The Commission notes that potential repeal of s 80(1)(d) is likely to be politically polarising matter, however we urge the committee to make the necessary amendment.

14. In the absence of consensus on the repeal of s 80(1)(d), the Commission encourages the Justice Committee to make the necessary amendments to the Electoral Act to immediately improve and encourage enrolment and voting processes for released prisoners and those currently eligible to vote but residing in prison (the remand population).

Recommendation 2: Amend the Electoral Act 1993 to ensure the Electoral Commission is notified by the Department of Corrections when a prisoner is released from prison.

Recommendation 3: Amend the Electoral Act 1993 to enable automatic reenrolment of prisoners following release from prison.

⁶ Waitangi Tribunal, He aha i perā ai? The Māori Prisoners’ Voting Report, August 2019, at [4.4].

⁷ Waitangi Tribunal, at [4.4.3].

⁸ Waitangi Tribunal, at [5.3].