Legal Beagle by Graeme Edgeler

6

A draft submission on the Electoral (Registration of Sentenced Prisoners) Amendment Bill

There are a few days left to put in a submission on the Electoral (Registration of Sentences Prisoners) Amendment Bill.

The bill would allow prisoners serving sentence of imprisonment under three years to vote, essentially restoring the status quo ante that existed before the members bill advanced by then National MP Paul Quinn was passed by a slim majority

For anyone interested in my views, they're published below. I've been sufficiently organised this time to publish them here a few days before submissions close, so if there are any errors, please let me know. 

The Justice Committee

Electoral (Registration of Sentenced Prisoners) Amendment Bill

Submission of Graeme Edgeler

Overview

My name is Graeme Edgeler. I am a Wellington barrister with a strong interest in electoral law. I thank the Committee for the opportunity to make a submission on the Electoral (Registration of Sentenced Prisoners) Amendment Bill (“the bill”). I look forward to the opportunity to speak to my submission.

I support the overall intention of this bill. Indeed, I believe it should go further. I consider that being sentenced to imprisonment should not, by itself, remove the right to vote. I would welcome any further opening up of the right to vote, including, for example, raising the threshold, and encourage the Committee to recommend this to the House.

I recognise that a policy decision has been made, so while I touch on the arguments for this, I also address some other matters of policy and drafting raised by the bill.

My submission addresses the following matters:

  • Whether denial of electoral rights is ever justified as part of criminal punishment.
  • The need to avoid arbitrariness in the application of law, including around the timing of sentences, and the applicability of bail laws.
  • The inconsistency between the treatment of civil prisoners and service prisoners.
  • The proposed changes around the unpublished roll.

Is Denial of Electoral Rights ever justified as part of a criminal punishment?

I accept there are situations where it may be justifiable to temporarily remove an otherwise qualified voter’s right to vote. But I would limit this to circumstances of offending where that offending has a connection to the electoral process.

One example would be that contained in section 100 of the Electoral Act, which provides for names to be included on the corrupt practices list, where a person is convicted of a corrupt practice, or found to have committed a corrupt practice on the trial of a (civil) election petition.

An alternative to a system whereby imprisonment is the determining factor could include one where upon conviction, a judge has the power to order that someone be entered onto something like the corrupt practices list for a time. With appropriate criteria, this could present a justifiable limitation on the right to vote. This would also avoid some of the arbitrariness I will discuss later: under the current law, placement of the corrupt practices list is for three years, ensuring that everyone on it suffers the same penalty (missing one general election and one local election).

A process of this nature could even apply to some people convicted but not sentenced to prison, where the nature of their conviction was such as to undermine the integrity of the electoral system (for example, offending related to an election, but charged as forgery, as we saw with the conviction of Daljit Singh, who was sentenced to community detention).

Avoiding Arbitrariness

People should not lose their rights on an arbitrary basis, and the law should not provide that two identical sets of offending have different consequences based on matters beyond any person’s control.

This can occur under the law as it stands. And while the bill reduced the possibility of arbitrariness, unfortunately it will not eliminate it.

Home detention

One anomaly the bill will fix is the distinction between short term prison sentences and home detention. A sentence of home detention is only available if a convicted person’s offending was so serious that they would have been sentenced to imprisonment: if the sentence is short enough, and the aims of sentencing can still be met by home detention, it can be imposed.

However, for some convicted people, lacking in financial means, or living in precarious or overcrowded accommodation can mean they are effectively ineligible for home detention, and may be sentenced to imprisonment where a more wealthy person would receive home detention.

The three-year rule removes this anomaly, because home detention is only available for sentences of two years or less.

Arbitrariness in Sentencing Dates

Under the Electoral Act, the determinant of whether a convicted person is eligible to vote is whether they are in prison under a sentence of imprisonment. This can mean that a person sentenced to six years imprisonment, and paroled after serving 40% of their sentence may never actually lose the right to vote in a general election, if their sentence is timed right, but a person sentenced to six months in prison, serving only three months, may lose the right to vote if the sentence is imposed shortly before an election.

The determinant of this timing may not even by the timing of the offending. Two near identical offences committed at the same time might have different outcomes depending on where they occur in the country, which could mean the local policing priorities or resourcing result in quicker charging, or waiting times at different courts may result in different trial and sentencing dates.

Changing the rule to require a three-year sentence does reduce the likelihood for inequity, but it does not eliminate it.

Arbitrariness in Application of Bail Laws

One consequence of the law, diminished but not removed by the bill, is the possibility that it may treat more hardened offenders less severely.

Appropriately, both the current law and this amendment permit remand prisoners to vote. This means that a person who serves a substantial period of their sentence in pre-sentence remand spends less time ineligible to vote than a person who does not.

This could even apply with two co-offenders, charged with the same crime, one denied bail throughout the court processes (perhaps because of a more extensive criminal history), the other bailed early in the process. After 18 months awaiting trial, both are convicted and receive the same sentence: 4 years’ imprisonment. Two people convicted of the offending, and receiving the same sentence, but one serves the entire non-parole period of their sentence eligible to vote, the other serves it while ineligible to vote.

Again, while the bill will reduce the incidence of this arbitrariness, it does not eliminate it.

Service Prisoners

These types of arbitrariness are a consequence of the policy decision taken under both the current law, and as evidenced in the bill, however there are other apparently arbitrary distinctions that the law and bill make, which could be addressed without altering the fundamental policy choices involved.

The Armed Forces Discipline Act provides for different sentences than the civilian courts, including a sentence of detention, and a more serious sentence of imprisonment. The effect of the current law, and the bill as drafted is that a service detainee (that is a person convicted at court martial and sentenced to a sentence of detention) retains the right to vote while serving their sentence. This is appropriate.

However, the effect of both the current law and of the bill is that a service prisoner (that is a person convicted at court martial and sentenced to a sentence of imprisonment) is entitled to vote, even after conviction. However if a service prisoner is transferred from a service prison to a civilian prison, they would lose the right to vote (a service detainee transferred to a civilian prison would retain the right to vote).

There are several aspects to this that are arbitrary. While there are service specific offences, courts martial can also be held in respect of ordinary civil offences. A person’s entitlement to vote after being convicted and sentenced to imprisonment should not turn on whether the conviction was in a military court or a civil one. It especially should not turn on the decision of a military authority to move a prisoner from a service prison to a civil prison or back. Under both the current law, and the amendment, it does.

Unpublished Names

Clause 8 of the bill provides for an automatic right for prisoners eligible to vote, while in prison, and all prisoners upon release, to be placed on the unpublished roll if they wish.

This not a right accorded to non-prisoners. A person must ordinarily make an application to the Electoral Commission, and must satisfy the Commission that their being placed on the unpublished roll is necessary.

While I am of the opinion that being sentenced to imprisonment should not result in a person having fewer electoral rights than other citizens, I cannot accept that it should result in the prisoner having more electoral rights.

Prisoners who have reason to think that the inclusion of their names on the published electoral roll would be prejudicial to the personal safety of themselves or others should have to meet the same requirements as any other person.

If there is a particular need, then, at most, the amended section 115(4) could provide for an additional type of document that might be used to satisfy the test (for example, allowing a statutory declaration from a prison employee/case officer/social worker, etc, in the same manner as paragraph (c) currently provides for police officers.

It may be that the Committee thinks that the current requirements are too stringent. If that is so, they should be relaxed for everyone.

Conclusion

I would prefer that this bill went further than it does. While it removes some of the inequities present under the current law, it does not remove all of them:

  • The Committee should consider whether there are other, less restrictive means of achieving the bill’s aim or ensuring that certain categories of prisoner should not be able to vote, while avoiding the anomalies the bill maintains.
  • The Committee should consider whether the bill should treat service prisoners in the same way as civil prisoners, in particular, it should reconsider the distinction the Electoral Act and Corrections Act make based on where a service prisoner is directed to serve a sentence of imprisonment.
  • If there are changes to the requirements for going on the unpublished roll, these should apply equally to prisoners and non-prisoners.

I look forward to appearing before the Committee in support of my submission.

Graeme Edgeler

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