Parliament corrects prisoner voting law

Time is always tight at Parliament, even tighter when a Parliamentary term is coming to an end, and tighter still when there are law changes that need to be in place before the September election.

Covid-19 has cost Parliament about 50 hours and forced the Government to carefully prioritise its legislative agenda even more than is normal in a lead up to an election. 

One of those pieces of legislation was a bill enabling some prisoners to enrol to vote officially called the Electoral (Registration of Sentenced Prisoners) Amendment Bill. 

In charge of that bill is the Minister of Justice Andrew Little who explained its purpose at its first reading back in March. 

"This is about making sure that we better facilitate participation in the electoral system for people who have been sent to prison for a brief period of time,” he said. 

“It means that those sentenced to a sentence of imprisonment of less than three years—therefore, those whose offending is at the lower end of the scale—and who, at some point between one election and the next, are going to get out of prison have the right to choose the leaders of the country that they're going to be released as a free person into.”

After a first reading a bill is usually referred to a select committee; this is a group of about 10 MPs from various parties who look more closely at legislation and hear the views of experts, officials, lobbyists, and members of the public. They write a report on the bill often with some recommendations for changes which they send back to the rest of the MPs in the House. 

A week after this bill's first reading the country went into lockdown and the Justice Select Committee heard from submitters over videoconference and live streamed its hearings online. 

The committee’s report on the bill is normally the topic of debate at its second reading in the House.

The two final stages of the bill took place under urgency and this is where the need for a second bill was created. 

Only the Government can move for urgency which allows for bills to be passed through more than one stage per sitting day and can extend the sitting day until they’ve got it done - it can reduce a process that often takes months to just hours. 

The use of urgency can be contentious mostly because the sped up process can truncate the House’s ability to hold the Government to account by scrutinising the bill. It can also skip the select committee process which takes about six months. 

The Opposition is more likely to be against the use of urgency as they want as much time as possible to scrutinise the Government’s agenda. 

“National opposes this bill on principle. We oppose it in respect of its impracticalness.” said National MP Nick Smith at the bill’s second reading. 

“We also oppose it in terms of the appalling parliamentary process that the Government has used again, today, in urgency, in ramming this legislation through.”

The bill passed its second reading and a committee of the whole House stage is what comes next. 

It’s normally the longest part of a bill’s journey through the House as it’s when the MPs work through the details of the bill to make sure it’s got everything it needs to do what it’s meant to. 

Sometimes an MP will notice an error or a way their bill can be improved and this is the stage where they can fix it by putting forward a Supplementary Order Paper or SOP. 

Andrew Little said he would do this at the bill’s second reading. 

“I just want to talk about the one issue that did come up in the deliberations by the select committee related to whether or not prisoners going back on the roll should go on the unpublished roll. 

“We have an unpublished roll. It is there for very good reasons, as it is about the safety of some voters. The bill as previously drafted, I accept, actually gave a virtually automatic right for prisoners, if they elected to go on the unpublished roll, to go on. That wasn't the original intention.

“Officials have given advice to the committee that it is possible to correct it. It was unfortunate that the committee could not reach agreement on that correction, but I will be introducing a Supplementary Order Paper that will correct that.”

SOP 512 in the name of Andrew Little was put forward for the House to consider while it was in committee. But any other MP can also put forward an SOP to make changes and this is where things got tangled. 

Green MP Golriz Ghahraman put forward an SOP to change Andrew Little’s SOP so it would allow all prisoners to enrol to vote and also, that they must be told they’re eligible to enrol. 

The first part enfranchising all prisoners was voted down but the second part was supported by the National Party and agreed to. 

The result was a bill that doesn’t allow for all prisoners to enrol to vote but requires all prisoners to be told that they are. It also says that their details should be sent to the Electoral Commission to be put on the electoral roll. 

The rules make it difficult to correct this once it’s been agreed to but MPs can agree to set aside the rules and National MP Nick Smith tried to make this happen during the bill’s third and final reading in the House.

“I seek leave of the House, under Standing Order 74, for a motion to discharge the bill and for it to be referred back to the select committee,” he said. 

“It is unworkable law. It would require our prison officers to act illegally. The correct way for the House to ensure that we're not passing law that puts our prison officers in that impossible position would be for us to discharge the bill and refer it back to the Justice Committee.” 

For this to work, everyone in the House needs to agree and if one person says no, then the request is denied - which is what happened. Going back to select committee would likely have delayed the bill until the following election.

The bill passed its third and final reading as it was and given Royal Assent which means it becomes law. 

So last Tuesday the Minister of Justice Andrew Little brought in another bill to fix the problem: the Electoral (Registration of Sentenced Prisoners) Amendment Bill (No 2). 

 To make sure it is passed in time for this year’s election it was put through all its stages under urgency in just one evening.

The National Party, ACT Party, and Jami-Lee Ross opposed the bill but the Labour Party, New Zealand First, and the Green Party supported it. 

At its first reading Green MP Golriz Ghahraman explained why the Green Party will support the bill despite it removing the bit that was put forward in her name.

“It's very, very usual in an MMP Government that minor parties and members who are outside of Government—as I am—may put up an SOP to further their party's position on a Government bill and have it be voted upon. 

“Those SOPs are, of course, drafted by the parliamentary drafters and, in this case, it was in two parts and the National Party did vote on one part of that bill. Unfortunately, they didn't vote on the substantive part; they voted on an administrative part, which would have had the effect of requiring prison staff to inform prisoners that they have the right to vote who don't and retaining prisoners on the roll who don't have the right to vote, because the substantive part was not voted upon.”

Ms Ghahraman said this was an issue that needed to be corrected because it would create administrative work for the Electoral Commission but still wouldn’t allow the prisoners to vote.

“We do want to tidy it up, but not because we are giving up on the fight to restore universal voting rights to all New Zealanders,” she said.

“But we do support this bill because we do believe in having law that's consistent and effective.”

The bill was passed through all its stages on Tuesday night and becomes law after it receives Royal Assent which is the Governor General’s signature. 

So what are the rules on prisoner voting now? Prisoners sentenced to less than three years can enrol to vote while in prison and prisoners sentenced to three years or more are given the opportunity to be enrolled on release from prison.