Oral submission to the Law and Order Select Committee in respect of the Electoral (Disqualification of Convicted Prisoners) Amendment Bill

1.0 INTRODUCTION

1.1 The New Zealand Council for Civil Liberties (NZCCL) appreciates the opportunity to appear before this Committee in support of our submission.

1.2 We support the proposal to amend S.80 of the Electoral Act 1993, but rather than substitute two replacement paragraphs we urge the Committee to delete the two existing paragraphs in their entirety.

1.3 At the time of our written submission NZCCL had been unable to obtain specific details of the number of prisoners who were serving a term of imprisonment of less than 3 years, and of the number whose term of imprisonment was 3 years or more. Subsequently we have obtained that information from the Department of Corrections, and we are now able to include those details.

2.0 PRACTICAL DETAILS

2.1 Specifically, as at 9 November 2008, being the date closest to the most recent general election, there were 6,177 sentenced prisoners and 1,759 remand prisoners in New Zealand prisons – a total of 7,936.

2.2 Of those 6.177 sentenced prisoners

• 2,809 were serving sentences of less than 3 years;
• 2,733 were serving sentences of 3 years and above.

2.3 The total number of prisoners eligible to vote as at 9 November 2008 was 4,460.

3.0 COMMENT

3.1 The number of prisoners serving sentences of less than 3 years, being those currently eligible to vote, constitute 45% of sentenced prisoners, and is at 2,809 an extremely small voting population. Even assuming that all of those prisoners were enrolled, and actually voted, the fact that their enrolment was in the electorate where they resided prior to imprisonment meant that the impact of those individual votes was fragmented.

3.2 The practical implications of those votes, and in the event they are no longer prohibited, the votes of all sentenced prisoners, is, on a collective basis, minimal. In terms of exercising a Party Vote the impact, on a collective basis, is also minimal.

3.3 This means that there is no practical justification for seeking to withdraw the current entitlement to vote from those prisoners sentenced to a period of less than 3 years, and the overall significance of the proposal is almost entirely symbolic.

3.4 The nature of the symbolism is open to speculation, but one very persuasive interpretation is that it serves to quench, in part and for a short time, the thirst for vengeance of those who are, or advocate for, victims by seeking to punish further those already sentenced to imprisonment.

3.5 NZCCL recognises the pain of those who are victims, and, without seeking to diminish their anguish, do observe that while victims may indeed feel better at a further punishment being imposed, the strong likelihood is that they will in fact be no better as a result. Moreover, those feelings usually fade over time. The old adage of “an eye for an eye” can only result, metaphorically speaking, in an increasing number of “one-eyed persons”.

4.0 S.7 NEW ZEALAND BILL OF RIGHTS ACT 1990 – CERTIFICATE BY ATTORNEY-GENERAL

4.1 Paragraph 16 of the Report issued in relation to this Bill states “I conclude that the blanket disenfranchisement of prisoners appears to be inconsistent with S.12 of the Bill of Rights Act and that it cannot be justified under S.5 of that Act.”

4.2 “Not consistent” and “not justified” suggests that further progress with this Bill ought to cease forthwith. To continue further on a rational basis requires an explanation of how the Bill is consistent with, and justified under, the respective sections. The General policy statement that, if enacted, the law would revert to what it was prior to the implementation of the current Act suggests that somehow the past 17 years have produced a detrimental outcome that now needs to be rectified. No evidence which might indicate or support such an outcome has been provided.

4.3 NZCCL believes that a more legitimate and detailed justification is essential in these circumstances. The final paragraph of the General policy statement does state that the analysis by the Royal Commission on the Electoral System omitted any consideration as to the level of serious offending most prisoners had been convicted of prior to them eventually receiving a custodial sentence.

4.4 This statement assumes some common agreement as to the understanding and acceptance of the concept of “serious offending” whether or not a custodial sentence is involved. There is no evidence to suggest that this is the reality let alone what that common agreement might be. Further, there are no numbers associated with the example so if, for instance, the sample size or the base line is very small, any change in the number of persons in the particular category automatically means a significant increase in the percentage. The omission of such an explanation also reflects adversely on the proposition that is presented.

5.0 A HUMANITARIAN APPROACH

5.1 The right to vote is a fundamental plank of democracy in New Zealand. S.12 of the New Zealand Bill of Rights Act 1990 states that every New Zealand citizen who is of or over the age of 18 … (a) has the right to vote in genuine periodic elections. Any limitation of that right must be both reasonable and demonstrably justifiable in a free and democratic society. Even so, the ability to vote is of such fundamental importance in a democratic society that any move to weaken further the idea of universal suffrage by removing the vote for a certain class of person is to be strongly resisted.

5.2 In view of the minimal practical impact of the removal of this right, the subjective impact on those who are victims of those serving prison sentences, and particularly the very small number of persons directly affected by the proposed amendment, NZCCL suggests that the consideration of this Bill is a timely opportunity to revisit our approach to this particular form of punishment.

5.3 Rather than simply discontinue progress with this Bill in its present form and miss this opportunity, NZCCL proposes that the Bill be redrafted to repeal S.80 (1) (d) and S.81 of the Electoral Act 1993. Indeed, this is a rare opportunity to take something potentially punitive and turn it into something actively humanitarian. Most of those persons currently in prison are one day going to be released into our society when their sentences are finished, and this particular change can be a signal to them that, regardless of their past offences, they are still members of our society. This is our inescapable common heritage regardless of whether or not we like it.

5.4 While it may well be considered by some to be little more than a lottery in that the ultimate effect either way may never be able to be calculated, NZCCL believes that in general it is preferable to encourage those serving prison sentences rather than discourage them. The repeal of those two sections is one small step in that process of encouragement.

5.5 Finally, NZCCL suggests that whatever decision is made in relation to this particular Bill – whether put forward as is, withdrawn, or amended as suggested – that decision is more a judgment by, and of, the members of this Committee and ultimately by, and of, the legislators in general, than it is of those persons serving current or future prison sentences.

Kevin McCormack Secretary/Treasurer, NZCCL, PO Box 337, WELLINGTON