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Wednesday, 2 March 2011
Page: 2061

Mrs BRONWYN BISHOP (11:23 AM) —The Electoral and Referendum Amendment (Enrolment and Prisoner Voting) Bill 2010 makes a number of undesirable changes to the electoral laws following the High Court judgments in relation to the timing of the closing of rolls and prisoner voting.

There are two minor non-controversial amendments which deal, firstly, with a prisoner being able to remain on the electoral roll, even if they are prevented from voting and, secondly, there is merely an insertion in the interpretive provision to ensure that references in the Electoral Act to an election for a division or similar expressions can operate in the event of a half-Senate election held independently from an election for the House of Representatives. The opposition has no problem with those two non-controversial amendments, but it certainly does have concerns with the two issues dealing with prisoner voting and with the closure of the rolls.

I will begin by talking about the closure of the rolls and how the assertions that are being made—that somehow people were excluded from voting to a worse extent than under the previous legislation—is simply not true. In 2006 the then government enacted legislation saying that the rolls would close for new enrolments at 8 pm on the day that the writs were issued, and, for changes in existing enrolments, three days after the issue of the writs. It did so because, notwithstanding the concerns regarding potential disenfranchisement with an early close of rolls, the government was concerned about the potential for electoral fraud associated with high levels of enrolment activity during the existing seven-day period.

The facts were these: in 2004 the number of transactions that the AEC had to deal with concerning enrolment and changing of addresses was 520,000. In 2007, after the change to close the electoral roll earlier, that number dropped to 263,000. This enabled the AEC to deal with those in a more efficient and accurate fashion. But it is important to note that together with the change in the legislation the government made money available so that the AEC could conduct a much more aggressive campaign to get people to enrol early and in a timely way. It is well to remember that under the existing legislation it is the obligation of an individual to enrol once they attain the age of 18 or become a citizen. That is an imperative, and it is thought of sufficiently seriously that it is a criminal offence not to do so.

So it is most important when we are talking about this issue to realise that it is not about the rush to try to get people on the roll at the last moment—where you can have integrity issues and you can have stacking out in marginal seats with people putting themselves onto the roll at the last minute—but about the fact that you have a prolonged campaign to see that people enrol in a proper time. When the number of transactions dropped to 263,000 that was the result of a 12-month campaign conducted by the Australian Electoral Office.

Even more important is this: in 2004, when there were an extra seven days for enrolling as a new enrollee, and an additional three days to get your address transferred, 168,394 people missed the deadline with that longer period. But with the shorter deadline—that is, when the writs are issued you have got to be on by eight o’clock that day if you are a new enrollee or you have got three days to change your address—we only had 100,370 people who missed the deadline. Not only did we see fewer transactions we actually saw a drop in the number of people who tried to enrol and were unsuccessful because they had missed the deadline. This is clearly because there was a strong campaign to get people back on the roll, and to get them enrolled in a timely fashion. In 2010—

Mr Danby —It is done in every election!

Mrs BRONWYN BISHOP —I hear an interjection from Mr Danby, who is one of those who said, ‘If we could just change the rules we would have won four more seats.’

The DEPUTY SPEAKER (Ms AE Burke)—Order! The member for Mackellar will refer to members by their appropriate titles.

Mrs BRONWYN BISHOP —If we look at the history of the Labor Party manipulating the methods of voting, then we see that there is a very political purpose in changing the rolls.

Mr Danby —In the 2004 election, that was right!

Mrs BRONWYN BISHOP —The easiest one to cite is when Neville Wran changed to optional preferential voting in New South Wales because he saw that by conducting three-cornered contests with compulsory preferences the Liberal and National parties were able to defeat Labor candidates. So Labor introduced optional preferential voting to prevent those three-cornered contests and, indeed, they were very successful—so much so that Queensland followed that model, and it worked for them. But now that the coalition in Queensland has become a single entity, Ms Bligh, who finds that the Green preferences are now working against her, is looking to change the legislation to go back to compulsory preferential because it will assist her politically. So when Mr Danby likes to interject and write his articles—

The DEPUTY SPEAKER —Order! The member for Mackellar will refer to individuals by their appropriate title.

Mrs BRONWYN BISHOP —The member for Melbourne Ports is in fact espousing a very political agenda, one that is well known. He is quite a good numbers man at that too. But if I go back to the point, the changes that were made in fact gave the roll more integrity. It enabled the AEC to deal more effectively with a reduced number of last-minute changes and therefore they were able to scrutinise them more thoroughly. And of course the number of people who were cut off was fewer than when there was a longer period. It is a bit like the deadline theory. When people are writing articles, as perhaps the member for Melbourne Ports and others do, if they have got a decent deadline they usually meet it but, if it is prolonged, they put it off and put it off. So the message that we sent out was one that was acceptable.

When we look at the High Court decisions that related to the question of the difference in the time made available and at the case of Rowe and the Commonwealth, we see that there were some strong decisions given by the dissenting judges. In the Rowe case, it was interesting that although there were seven judges sitting, there were only six judgments written. Three judgments were written that supported the plaintiff and the 2006 provisions were struck down, and there were three separate judgments written saying that they were valid enactments and should stand. Interestingly, the two prevailing judgments that were very strong dissenting judgments in the Roach case were also very strong judgments in the Rowe case as well. The judges were Justice Hayne and Justice Heydon.

The arguments put forth as to why the time available was no longer satisfactory, in the case of the four judges who decided that way, were effectively answered by the dissenting judges. I might say that very often we do see, particularly in the High Court where the court is not bound by previous decisions, that the dissenting point of view can ultimately become the prevailing point of view. So I think that in the question of arguing the legal case, it has got some way to go.

I turn now to the question of prisoners and the situation where prisoners have been excluded from the vote both at the state level and at the Commonwealth level. If you look at the state situation, each state is different. In New South Wales, if you have a custodial sentence of one year or more, you are excluded. In Victoria, it is five years or more. In Queensland, any prison sentence will exclude you. In Western Australia, it is one year or more. South Australia has no restriction and, indeed, your address for voting can be the prison itself, and in Tasmania it is three years or more.

In the Commonwealth, it began as one year or more. It then rose to five years when the Labor Party changed it in 1983—presumably, they thought more prisoners would vote for them. In 1995 the language was changed slightly but it was still five years, and then in 2004 we went back to three years. In 2006, we said that anyone with a custodial sentence—and that does not mean anyone who has got a suspended sentence—should be excluded from the roll.

If you then look at the logic of the government wanting to return to the three-year period, it really does not have any strong constitutional connection to do so. I will certainly argue, and the opposition would certainly argue, that if you look at section 44 of the Constitution, which states that if one of us were to be convicted of a crime which had a one-year imprisonment attached to it, we would be out. It would seem to me that we should be making a connection and should be following that one-year period and, accordingly, when we get to the question of consideration in detail I will be moving some amendments to that effect.

I would like to return again to the question for a moment of the change in the closing of the rolls and what our attitude to it will be on this bill. We are not moving an amendment to this part of the bill but are reserving the right to look at it again when in government. In support of that, I would like to quote Justice Heydon’s judgment. I said that very often a dissenting judgment can become the prevailing point of view because judgments in the High Court are not binding. In answer to the question of an unconvincing distinction between the allegedly invalid and admittedly valid sections—that is: why is the 2004 provision for a number of days you have to enrol valid and the 2006 amendment not valid?—Justice Heydon said:

The first plaintiff’s argument was that the provisions in force before the 2006 Act that gave her five more working days to enrol than the impugned provisions introduced in 2006 were constitutionally valid … the second plaintiff’s argument was that the provisions in force before the 2006 Act giving him two more working days to transfer his enrolment than the impugned provisions … were constitutionally valid—

but argued that the 2006 ones were not. Heydon said:

It is not possible to infer from the requirement in ss 7 and 24 of the Constitution that the Houses of Parliament be “chosen by the people” that these temporal differences are of such crucial decisiveness as to mark the difference between validity and invalidity. Differences of this type are in a sense arbitrary, but they are characteristic of the choices which legislators make, and have to make. It is unlikely that the fundamental norms underlying the Constitution and reflected in its language would require the conclusion that one regime was constitutionally valid while the other was invalid.

He went on to say that the plaintiffs’ arguments do not remedy the problems that they said that the 2006 provisions caused. He said:

… they did not demonstrate that the difficulties of all or any of these classes would be overcome to any significant degree by extending for five working days the period of enrolment and for two working days the period for transferring enrolment.

That indeed is borne out by those figures I gave earlier that showed that fewer people were in fact denied enrolment under the 2006 provisions than under the 2004 provisions. Heydon said:

The plaintiffs say that the impugned provisions are void because they fix periods which cause a “substantial” number of persons to be disenfranchised.

Again, I would quote those figures: 186,000 in 2004 and only 100,000 in 2007. Heydon went on to say:

On the plaintiffs’ arguments, the disenfranchised only arises because a “substantial” number of people choose to disobey laws compelling them to claim or transfer enrolment, laws which the plaintiffs concede are valid.

The plaintiffs’ arguments could not work if it were only they who had disobeyed the laws, because two is not a sufficiently substantial number. The laws alleged to be invalid and the laws conceded to be valid are, however, part of a single integrated scheme. The constitutional validity of some laws in that scheme cannot turn on the number of people who choose to disobey other concededly valid laws enacted as part of that scheme. The validity of the impugned provisions cannot wane or wax as the number of persons who fail to comply with their statutory duties rises or falls. Substantial disobedience to laws validly enacted under a power to do so in the Constitution (in this instance s 51(xxxvi)) cannot render invalid other laws enacted under that power. So to hold would subvert not only the validly enacted laws, but also the Constitution under which they were validly enacted.

It is a pretty solid and persuasive judgment that Heydon has given. As I said, although the decision was seven judges and a 4-3 split, there were in fact only three judgments written in favour and three judgments written as dissenting judgments.

When we come to consideration in detail, I will be looking at the number of prisoners who were serving a sentence in June 2006 and at the question of just the sort of persons who would be entitled to vote under the changes that will be made by this legislation. I can say, to foreshadow the sorts of arguments I will be putting to support my amendments, that in 2006 there were 20,209 prisoners in Australian prisons who were serving a sentence and that 35 per cent of prisoners were serving a sentence of two years or less.

The sorts of people the government wants to vote include one person who has a two-year jail sentence for aggravated burglary, false imprisonment, armed robbery and theft. The victim of the attack was tied to a chair with an electrical cord, doused with kerosene, forced to eat dog food and hit over the head with a broom handle. The attacker stole a number of items from the man and forced him to disclose his ATM PIN before robbing his bank account of $300. Under the provisions introduced by the government in 2006 that man would be denied a vote. Under the amendments by the Labor Party that this bill brings in, that person is entitled to vote. Equally, a person who has a two-year sentence for possessing, accessing and transmitting child pornography will be entitled to vote. This particular person was among 19 men arrested in Australia by the Australian Federal Police as part of a 12-month global child abuse investigation. The charges related to more than 10,000 images and 250 videos. Another is a man who was given a 2½-year sentence for indecent dealings with children under 14 years of age, a teacher who sexually abused three young boys at school on camping trips in Western Australia. A child was lured into an office block where they were physically and very badly abused. Another boy was assaulted in a tent on a camping trip during which the offender was the only adult. This is the sort of person who will be allowed to vote under the government’s legislation but would be deprived of a vote under the legislation that was passed in 2006.

It is important to note, I think, that when we go back to the High Court judgments, and we look at the sorts of arguments in both the majority judgments and the dissenting judgments, again and again the question comes up of whether or not there is an ability to make the case that a person who is entitled to be part of the community has committed an offence which marks them out as being, rightly, deprived of part of that community involvement—that is, having the right to vote. It was clearly marked out that taking away the right to vote was not an additional punishment imposed by federal law on top of the breach of a state law but rather a question of whether or not the offence that was committed was sufficient to justify a person losing that community involvement, being the right to vote.

In this entire question of changing the laws—and I note that there is a new bill being introduced this morning that will again change the rules with regard to provisional votes—one cannot help but see that at every move there is a political motive behind it rather than one which is concerned with the integrity of the roll. There are other questions that are coming up that are being discussed, with the New South Wales and Victorian governments moving to the position of having automatic enrolment. That will come from sources such as the RTA and other bodies of data which are held but not gathered together for the purpose of enrolment. The practice in New South Wales will be that the person or people will be automatically added to the roll and then they will be sent a letter. It will be the case not that if they respond, they will remain on the roll but that if they fail to respond, they will remain on the roll opening up, again, the question of the integrity of the roll and its abuse to a great extent.

I must say that this very morning we were having a hearing relating to these points and there was no satisfactory answer given as to why data collected for one purpose—and full of errors, which can be easily demonstrated—should be transferred and used to add people to the roll without them ever having to apply. Surely the right to vote is sufficiently important and sufficiently sacrosanct in the sense that it cannot be treated as a commodity; it must be treated as an individual applying to vote and complying with the laws as they are set out. So, as we move on this path, as I said, I will be moving amendments in the consideration in detail stage to the question of the term of imprisonment that should apply to mean that a prisoner is not able to vote. But we agree that the prisoner should remain on the roll.

With regard to the question of the earlier closure of the rolls, which was brought in in the 2006 legislation, I would simply say that the strong arguments put forward by Justices Hayne and Heydon in particular, which very distinctively counter the judgment that is put forward in the majority judgment of the court on the issue of Rowe, will make us able to consider our position in government about that question.

I will conclude on the point regarding the one-year period. Even the majority judgment contained a statement on that. I go to the judgment of Gummow, Kirby and Crennan, dealing with section 44. They say:

The Commonwealth submits that whatever implication or principle may be evident in the grounds in s 44(ii) for disqualification of senators and members, and of candidates for election, s 44(ii) is disconnected from consideration of the validity of the denial by s 93(8AA) of the exercise of the franchise.

They then say:

That submission should be rejected as being too wide.

Not only must the Constitution be read as a whole, but an understanding of its text and structure may be assisted by reference to the systems of representative government with which the framers were most familiar as colonial politicians. These do not necessarily limit or control the evolution of the constitutional requirements to which reference has been made.

In other words, that says that we should be looking at constitutional issues as a whole. Therefore, it is perfectly reasonable for the opposition to say, as it does, that exclusion from the right to vote does have a connection to the exclusion of a candidate from being able to be elected or, once elected, sit. The provision of one year would be consistent and, in the eye of a reasonable man, would be an amendment that I would hope the government would look at in a favourable light because it does bring about a more holistic approach to when someone can or cannot be a member of this House, when someone can be elected to this House and when someone is entitled to vote for a member to come to this House—and the Senate.