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Wednesday, 2 March 2011
Page: 2090

Mr MELHAM (1:39 PM) —I rise to support the Electoral and Referendum Amendment (Enrolment and Prisoner Voting) Bill 2010. The bill will update the text of the Commonwealth Electoral Act 1918 to reflect the current constitutional position as declared by the High Court to (1) reinstate the previous disqualification for prisoners serving a sentence of imprisonment of three years or longer from voting in a federal election and (2) restore the close of rolls period to seven days after the date of the writ for a federal election.

The previous speaker, the member for Bradfield, talked about good faith. What more good faith can there be than to bring forward legislation that reflects a High Court decision—a majority decision—in two cases that is about enfranchising electors? In all my time here, the Labor Party, this side of the parliament, has been about enfranchising people. In all my 21 years here and in my involvement in the parliamentary Joint Committee on Electoral Matters it is the other side of parliament that is about disenfranchising. That is what this debate is about.

I will quote from the High Court decision of Roach. It was a 4-2 majority with Chief Justice Gleeson in the majority. Justices Gummow, Kirby and Crennan gave a joint judgment with Justices Hayne and Heydon in the minority. It is worth reflecting what they say on the matter. Chief Justice Gleeson said, at paragraph 10:

What is the rationale for the exclusion of prisoners? Two possibilities may be dismissed. First, the mere fact of imprisonment is not of itself the basis of exclusion.

At paragraph 11, he said:

The rationale for the exclusion from the franchise of some prisoners, that is, those who have been convicted and are serving sentences, either of a certain duration or of no particular minimum duration, must lie in the significance of the combined facts of offending and imprisonment, as related to the right to participate in political membership of the community.

In effect, he finished his judgment by saying, at paragraph 24:

The step that was taken by Parliament in 2006 of abandoning any attempt to identify prisoners who have committed serious crimes by reference to either the term of imprisonment imposed or the maximum penalty for the offence broke the rational connection necessary to reconcile the disenfranchisement with the constitutional imperative of choice by the people.

Justices Gummow, Kirby and Crennan had this to say in their judgment, at paragraph 85:

Is the disqualification for a ‘substantial’ reason? A reason will answer that description if it be reasonably appropriate and adapted to serve an end which is consistent or compatible with the maintenance of the constitutionally prescribed system of representative government.

When used here, the phrase ‘reasonably appropriate and adapted’ does not mean essential or unavoidable. Further on it says:

… in this context there is little difference between what is conveyed by that phrase and the notion of “proportionality”. What upon close scrutiny is disproportionate or arbitrary may not answer to the description reasonably appropriate and adapted for an end consistent or compatible with observance of the relevant constitutional restraint upon legislative power.

And then this is what they say at paragraph 95:

The legislative pursuit of an end which stigmatises offenders by imposing a civil disability during any term of imprisonment takes s 93(8AA) beyond what is reasonably appropriate and adapted (or “proportionate”) to the maintenance of representative government. The net of disqualification is cast too wide by s 93(8AA) ….

The result is that sections 93(8AA) and 208(2C) are invalid and question 1 in the amended special case should be answered accordingly.

That is why we are here today debating this piece of legislation. The High Court basically said that the former government went too far. They did the same thing when they cut back seven days as being the day when you can get on the roll from the time at which an election is called. The High Court in that case, which is known as Rowe’s case, had Chief Justice French in the majority, with Justices Gummow and Bell doing a joint judgment, and Justice Crennan, and in the minority Justices Hayne, Heydon and Kiefel. Again, it is about enfranchising. At paragraph 166:

In particular, the requirement in Roach of any disqualification be for a substantial reason cannot be answered simply by what may appear to have been legislative purpose. A legislative purpose of preventing such fraud before it is able to occur, where there has not been previous systemic fraud associated with the operation of the seven-day period before the changes are made by the 2006 act, does not supply a substantial reason for the practical operation of the 2006 act in disqualifying large numbers of electors. That practical operation goes beyond any advantage of preserving the integrity of the electoral process from a hazard which so far has not materialised to any significant degree.

Debate interrupted.