Since 2010, there has been a blanket ban on all prisoner voting. On Wednesday night, Parliament passed a bill that gives prisoners who are serving a sentence of less than three years back the vote. Here’s what you need to know.
As of March this year, there were almost 10,000 people in prison, 52% of whom are Māori. None of them are allowed to vote.
The ban on prisoner voting has been described by the Waitangi Tribunal as a breach of the Treaty, and as a key factor in lowering the number of Māori from the Electoral Roll.
Justice Minister Andrew Little introduced the Electoral (Registration of Sentenced Prisoners) Amendment Bill in February this year hoping it would give certain prisoners the right to vote – starting at this year’s election.
On Wednesday 24 June the bill passed its third and final reading, with 63 votes for and 56 votes against. This means 1900 prisoners will be able to vote in September.
What was the situation before this change?
No prisoners were allowed to vote. All prisoners were removed from the electoral roll completely and needed to re-enrol once they left prison if they wished to vote.
The removal of prisoners’ right to vote came into effect in 2010 when National introduced the Electoral (Disqualification of Sentenced Prisoners) Amendment Bill. They argued that people sent to prison have breached a social contract with the state and should forfeit some of their rights because in order to reap the social benefits of a government, you must respect the authority of a government. As National MP Jonathan Young said at the time:
“This bill is essentially saying that for a person to participate in the election of lawmakers, that person cannot be a lawbreaker.”
The current Electoral (Registration of Sentenced Prisoners) Amendment BIll will overhaul this and return prisoner voting rights back to what they were in 1993, where certain prisoners will be allowed to vote, others will not.
But this isn’t the first time this law has been changed. As far back as 1852 it has volleyed back and forth between full disqualification of prisoner voting rights, full reinstatement of prisoner voting rights and partial reinstatement of prisoner voting rights.
What is the impact of prisoners not being able to vote?
Advocates say the law disproportionately affected Māori voters because they make up 52% of the New Zealand prison system.
A report by the Ministry of Justice shows a dramatic number of Māori have been removed from the electoral roll since 2010 as a result of incarceration.
If the 2010 ban remained, the report predicted by December this year 32,000 people would have been removed from the electoral roll in the last 10 years, 60% of them Māori.
A further report by the Waitangi Tribunal found that no matter how much people tried to engage with former prisoners once they were back in the community, it had little to no effect on re-enrolment.
This means “the legislation operates as a de facto permanent disqualification due to low rates of re-enrolment amongst released prisoners,” the report said.
In the year before the law was changed, 54 Māori were removed from the electoral roll. In the year after, 559 Māori were removed. That’s a tenfold increase.
For non-Māori, the number only doubled - from 26 people before the law changed, to 60 people after.
The new bill has given prisoners back the vote - but only if their sentence is less than three years
It’s an amendment to an existing law (Electoral Act 1993) and has been divided into two parts:
Part one: Disqualifications for registration
This amendment will give the right to vote to prisoners who are serving a sentence of less than three years.
But a ban on voting will remain on prisoners who are:
- Serving a life sentence
- In preventative detention
- Serving a term of more than three years (even if they have less than three years left to go)
Part two: Registration of sentenced prisoners as electors
This makes prison managers responsible for getting inmates enrolled to vote.
Prisoners who are serving a sentence of less than three years and are qualified to vote:
- Must be advised by the prison manager about the conditions that qualify a person to register as an elector (such as being over 18, having lived in New Zealand for more than one year continuously at some point in your life and being a NZ citizen or permanent resident)
- The prisoner manager must apply to the Electoral Commission for the prisoner’s registration as an elector
Prisoners who are being released after a sentence of three years or more and are qualified to vote:
- Must be advised by the prison manager that they have one month after release to apply to the Electoral Commission for registration (It’s illegal not to be registered to vote if you meet the conditions of registration)
The prisoner voting ban was found to be a breach of both the Treaty of Waitangi and the Bill of Rights
The Waitangi Tribunal found the prisoner voting ban was a violation of the Treaty.
“By failing to consult Māori and providing inadequate advice,” the report said, “the Crown failed to actively protect Māori rights under the Treaty.”
The Tribunal argued:
- Māori are incarcerated for less serious crimes than non-Māori
- Young Māori are more likely to be imprisoned than young non-Māori which does not give them a chance to develop good voting habits
- Removing the right to vote disenfranchises Māori which has a flow-on effect to whānau and community
- As a result of disenfranchisement, rates of re-enrolment among prisoners remain low
As a solution, the Tribunal recommended all prisoners should be able to vote, irrespective of how long their sentence was.
The current government’s bill does not extend that far.
The Supreme Court had also found the voter ban to be inconsistent with the New Zealand Bill of Rights, which says:
“Every New Zealand citizen who is of or over the age of 18 years - has the right to vote in genuine periodic elections of members of the House of Representatives, which elections shall be by equal suffrage and by secret ballot.”
In 2015 five serving prisoners including prisoner Arthur Taylor took to court to argue the inconsistency between the Bill of Rights Act and their disqualification from voting. They won, triggering a declaration of inconsistency and the need for parliament to respond.
What do the political parties think about giving the vote back?
Minister Andrew Little introduced the bill based on the inconsistencies with the New Zealand Bill of Rights Act.
He argued that the 2010 ban enacted by National took the removal of rights too far. Prisoners who had a sentence of three years or less were on the lower-risk end of offending, he said, and should have the opportunity to have a say on who would be in leadership once they were released.
“This is about the right to vote,” he said at the final reading of the bill. “Restoring the right to vote to a bunch of people who had it unceremoniously taken off them by the National Party in 2010. This is the right thing to do.”
National accused Labour of rushing the legislation through Parliament in the middle of a pandemic as a way to get more votes for the 2020 election. Normally a bill will spend six months in select committee, whereas this one spent about three months.
National argue that if you’ve committed a crime serious enough to land you in prison, then for the time you are there, your rights should be suspended.
MP Dr Nick Smith said “This is simply a bill being rushed through under urgency, shortened select committee process so that Labour thinks they can bag a few more votes on 19 September and save their bacon on election day. That's wrong, and that's why we oppose this.”
The Greens agreed with the recommendations made by the Waitangi Tribunal and say the law hasn’t gone far enough. They argue that all prisoners deserve the right to vote, not just those with less than three years on their sentence.
“Prisoners are already carrying out their punishment by being in prison,” Green Party MP Golriz Ghahraman said in a press release.
“Denying them basic human rights to access democracy only serves to further ostracise them from their community and weakens the integrity of our justice system.”
What happens now?
The last step in the process is to get Royal Assent which means the Governor-General signs it and it will become law.
The Electoral Commission will work with the Department of Corrections to have enrolment and voting services in place for the election and referendums in September.
CORRECTION: We had mistakenly reported prisoners who have three years or less left on sentences longer than three years would be able to vote. This is wrong. Only prisoners whose original sentence was for less than three years will be able to vote. Those serving sentences of longer than three years will not be able to vote, even if they have less than three years left on their term. They will only be able to vote once they are released from prison.
Words by Cass Marrett
Infographics by Liam van Eeden