2010 legislation The Electoral (Disqualification of Sentenced Prisoners) Amendment Bill was introduced into Parliament as a
private member's bill by
Paul Quinn of the National Party on 10 February 2010. The Bill's first reading occurred on 21 April 2010. It was then referred to the Law and Order Select Committee to review the legislation and make any changes necessary. This is because the Law and Order committee is primarily staffed with members from the Department of Corrections who traditionally deal with "matters relating to corrections, courts, criminal law, police, and serious fraud." It was contended by opposition members that a more appropriate committee would have been the Justice and Electoral Committee. This committee is aided by staff from the Ministry of Justice and deals with "matters relating to Crown legal and drafting services, electoral matters, human rights, and justice." The select committee received a large number of submissions on the Bill, with the majority being opposed to the legislation's passage. There were two submissions made in support of the Bill, one of which was by the legislation's introducer, Paul Quinn. However, some of the submissions made were as part of assessment for an Otago University paper, and this could have skewed the results slightly. Despite the overwhelming number of submissions opposed, the Bill was returned to the House with little changed. The Bill had its second reading on 20 October 2010. Its final reading was on 8 December 2010 and it received
royal assent on 15 December 2010. The legislation took effect from 16 December 2010. Under the legislation, anyone detained in a prison on a sentence of imprisonment was unable to register as an elector. In its original form, the legislation did not include a saving provision of this nature, so it would have had the effect of disenfranchising everyone convicted after the commencement of the Act, but also of re-enfranchising everyone convicted before the Act. This drafting oversight was amended by way of supplementary
order paper, as it would have completely undermined the point of the legislation if enacted in that form. Paul Quinn based his justification for the legislation loosely on
social contract theory. This is the idea that prisoners have breached the contract with the state, and therefore some of their rights can be validly restricted. This was the view advanced by many supporting members in their speeches but perhaps put most clearly by Jonathan Young during the bill’s Third reading. "The social contract that undergirds every stable society must balance human rights with human responsibilities, or said essentially, in order to participate in the process of selecting our lawmakers who shape our society, one ought not to be a serious lawbreaker." Removing the right to vote is essentially another form of punishment for criminals. In reality, there was little substantive argument made in favour of the legislation as it passed through Parliament, something which did not go unnoticed by commentators.
Criticisms of the law Under section 7 of the
New Zealand Bill of Rights Act 1990 (NZBORA) if there is an apparent inconsistency between legislation being introduced and the NZBORA, the Attorney-General must bring this to the attention of the House as soon as possible. There was a section 7 report filed in respect of this legislation by Christopher Finlayson. There was, in the opinion of the Attorney-General, an inconsistency between the Bill and section 12 of NZBORA, which affirms the voting rights of New Zealand citizens. Under section 5 of NZBORA, rights are not absolute, but can be limited so long as those limits are "demonstrably justified in a free and democratic society." There are two questions that the Attorney-General and the courts will look at in determining whether the limit comes under section 5. Firstly, whether the "provision serves an important and significant objective" and secondly whether there is a "rational and proportionate connection between the provision and the objective." The uneven application of the Bill was a concern for the Attorney-General and also opposition members. An example that came up frequently in debates was the disparity between a sentence of home detention and of imprisonment and the effect that would have on offenders. It is possible to have offenders who have committed the same offence in similar circumstances have a disparity between their sentences as one may be eligible for home detention, whereas the other is not because of a difference in personal circumstances. An offender given a sentence of home detention will not be caught by this legislation and as such will not be removed from the
electoral roll. The opposition also noted the position was not changing for prisoners housed in a hospital instead of a prison. Under previous legislation, they were both treated the same, but the new legislation disenfranchises offenders housed in prisons, but those housed in secure hospitals are still allowed to vote if their sentence is less than three years. Another issue that was mentioned by opponents to the legislation and in the submission of the Electoral Enrolment Centre was the fact that prisoners are removed from the electoral roll completely. The concerns revolved around the fact that it is already difficult to get people who are marginalised onto the electoral roll, so their removal could mean that many people simply wouldn't bother to re-enrol after their release, which would mean their disenfranchisement could possibly extend much further than just the length of their sentence. The EEC suggested that the Bill be amended to include a requirement for Prison Superintendents to send the EEC a completed enrolment form when offenders are released. This was considered by the Select Committee but not adopted into the law, preferring to let the departments organise this as between themselves.
Legal challenges to the law In 2014, the law was challenged in the High Court by a number of serving prisoners. The challenge was founded on a number of grounds, including inconsistency with multiple provisions of the New Zealand Bill of Rights Act, inconsistency with the
ICCPR and inconsistency with the
Treaty of Waitangi. It was alleged that not only was the legislation inconsistent with the right to vote in NZBORA, but that it would also disproportionately affect Māori, who make up around 51% of the prison population, thereby becoming a form of discrimination against Māori. The court noted that similar laws in other countries had been struck down by their higher courts, something which New Zealand courts do not have the jurisdiction to do. The court found that there was no way to read the section in a manner consistent with the NZBORA, however, because of s 4 of that Act, the provision must still be applied in full. It was also held that it would be difficult to say that the provision was in line with New Zealand's international law obligations, and that it was likely to be inconsistent with the Treaty of Waitangi, although the court did not have jurisdiction to rule on that matter. The judge said that the criticisms of the provision were "numerous and weighty" nature of the provision, "Parliament has... spoken" The appeal to the finding that the 2010 blanket ban was inconsistent with the section 12(a) of the Bill of Rights was dismissed on 26 May 2017 in Taylor v Attorney General NZCA 215. Additionally, the appellant was made to pay the second to fifth's respondents' costs for a complex appeal on a Band A basis with usual disbursements. On 9 November 2018 the
Supreme Court of New Zealand also agreed with the High Court's decision in favour of Taylor in Taylor v Attorney General NZSC 104. On 9 August 2019 the
Waitangi Tribunal found that "section 80(1)(d) of the Electoral Act 1993 breached the principles of the Treaty. The Tribunal further found that the Crown has failed in its duty to actively protect the right of Māori to equitably participate in the electoral process and exercise their
tino rangatiratanga individually and collectively." ==Re-enfranchisement of short-term prisoners in 2020==