Legal Beagle by Graeme Edgeler


Fact-checking Parliament: more prisoners can vote than they think

Parliament’s Justice and Electoral Committee has released its report on the 2014 general election. There are number of useful observations about the process, and recommendations about possible law changes. Nothing particularly major – work on online voting is not a priority – but hopefully a few changes to make our elections a little bit better will result.

People bring up all sorts of things in submissions on the Inquiry into the General Election: someone will usually ask for photo ID to be required to vote; to which the Committee helpfully responds “We observe that fraud and personation countermeasures are in place: dual votes are extracted through the scrutiny process and not included in the official count, and cases of personation are referred to the police. The number of dual votes is very low, between 0.002 and 0.004 percent of registered voters.”

The Committee wants the ban on partisan twitter use on election day to stay, and looked at the problems with the Broadcasting Act, and recommends further consideration. Perhaps most noteworthy is that the Māori Party (and the Electoral Commission) appear to have won over the Government members, as the Committee unanimously recommended a change to the Māori roll process (allowing people eligible for the Māori Roll to switch roll type once per election cycle, rather than only during the Māori Electoral Option).

And the Committee was also asked by submitters to reconsider the extended ban on prisoner voting. Although “reconsider” might be wrong word: the bill extending the ban on prisoners voting went to the Law and Order Committee, not the Justice and Electoral Committee. This may be part of the reason it passed so incompetently: the expert government advisers on the legislation were not the Ministry of Justice, but the Department of Corrections, who might be experts in running prisons, but they aren't experts in electoral law.

On the prison voting ban, the Justice and Electoral Committee recommended by majority to retain the current ban, noting:

“Prisoners on remand are the only prisoners eligible to enrol and vote.”

Thing is, this isn’t true. Though mostly small, a number of other categories of prisoners are in fact eligible to vote, including a small group of sentenced prisoners, as I discovered here.

My extensive, but probably not exhaustive, list of prisoners who aren’t automatically disqualified from enrolling and voting in New Zealand follows. There are probably some technical issues: although people falling within most of following categories are prisoners, there are technical arguments about whether particular forms of detention are “imprisonment”. People required to go into a booze bus for an evidential breath test are detained, but they are not prisoners (they can vote). And the Government would probably argue people subject to public protection orders ordered to be detained on prison grounds are not prisoners, but are residents. Well, if you’re detained in a building inside the wire at a prison, I’m calling you a prisoner. My list also doesn’t include all people detained. There are all sorts of powers of arrest usually exercised for the purpose of getting someone to court. People under arrest are detained, but they are not prisoners. And forcibly detained in secure care mental health facilities are not prisoners either (some can vote, some cannot).

Assuming a person is otherwise eligible to enrol, the following categories of prisoners are not banned from voting in New Zealand elections:

  • Remand prisoners (people refused bail pending trial; or after conviction but before sentence).
  • Sentenced prisoners serving a life sentence or sentence of preventive detention imposed before 16 December 2010, who were paroled as at that date, but who have subsequently been recalled to prison to continue serving that sentence.
  • Sentenced prisoners on temporary release on the day of the election (if they enrol in time!).
  • Service prisoners subject to a sentence of imprisonment (those convicted at Courts Martial or otherwise under the Armed Forces Discipline Act, unless directed to serve their sentence is a civilian prison).
  • Service prisoners subject to a sentence of detention (even if serving the sentence in a civilian prison)
  • Someone imprisoned for contempt of court (but not contempt in the face of the court, unless they are…).
  • Someone imprisoned for contempt in the face of the District Court if the Court is exercising civil jurisdiction, but not criminal jurisdiction unless in respect of a charge laid before 1 July 2013.
  • Those serving a term of imprisonment for non-payment of fines, but not those serving a sentence of imprisonment in substitution of a community sentence.
  • People subject to a public protection order detained in a residence on the grounds of a prison.
  • People subject to a prison detention order or an interim prison detention order.
  • People subject to an interim detention order ordered to be detained in a prison, or on prison grounds.
  • A person paroled to reside on prison grounds, or subject to an extended supervision order with a condition to reside on prison grounds
  • People detained in prison on an extradition warrant (who are probably technically remand prisoners) or a surrender warrant, including surrender warrants in respect of International War Crimes Tribunals.
  • An Australian citizen who has resided continuously in New Zealand for one year at some point, who is suspected of constituting a threat or risk to security, detained in prison pending the making of a deportation order.
  • Someone imprisoned upon proof of probable cause they were intending to leave New Zealand to the material disadvantage of a person pursuing an action on the High Court for the recovery of a debt exceeding $100.
  • People imprisoned overseas.
  • And even, I think, people who have escaped from prison and are unlawfully at large.

And probably some others I might realise I should have included after reflection. Feel free to suggest possibilities!

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