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Thursday, 12 August 2004
Page: 26326

Senator MURRAY (1:10 PM) —We are debating the Electoral and Referendum Amendment (Prisoner Voting and Other Measures) Bill 2004 on what is possibly the last sitting week before an election. I say `possibly' because it is not a certainty but, because of that possibility, I reiterate the same sentiments I made in my second reading contribution to the electoral bill in late June. Those remarks were about process. It is my opinion that the next government, of whatever complexion, has to change its approach to the way electoral bills are introduced into and dealt with by the Senate chamber. It is bad form to rush important bills that affect an election process when the deadline of an election is over the horizon, and we have not had the opportunity to debate and to consider many of the very important views of senators from all the various political parties and the Independents around the chamber.

It would seem that, throughout the period of the three-year electoral cycle, electoral bills not only are few and far between but always come at the end of the electoral cycle. That is a perennial problem. It means that significant matters which the Joint Standing Committee on Electoral Matters raise or that individual senators wish to raise do not have or seldom have the opportunity to be aired and debated. Electoral bills are not only matters of passion but matters which go to the heart of our concern to have a well-functioning democracy, not least because every single senator and member of the House of Representatives has a self-interest attached to those bills.

Turning to this bill, we have to debate this issue of prisoner voting all over again due to the unworkability of Labor's amendments, which stated that a person is not entitled to enrol and vote if the person:

(b) is serving a sentence of imprisonment which:

(i) commenced on or before the return of the writs for an election for the House of Representatives or Senate; and

(ii) continues at the issuing of writs for any succeeding election for the House of Representatives or Senate; ...

That amendment was passed in June by the coalition and the Labor Party, with the Democrats opposing. That amendment is now law but has been found to be unworkable. It effectively required the Australian Electoral Commission to strike off the roll prisoners serving a sentence of three years or more. It is interesting that Labor's amendment had the unintended consequence of almost delivering the Democrat policy of allowing all prisoners the vote. Because the section applies only to those who continue to serve a sentence at the issuing of the writs for any succeeding election, and that can only be determined when those writs are issued, it follows that all prisoners are presently entitled to enrolment.

This is the case even if a prisoner is serving a sentence exceeding five years, or even life, because it is conceivable that such a prisoner could be released on parole or even pardoned prior to the issue of the writs for the second election. Under the act, there is a 20-day objection period before someone can be removed from the roll. The writs condition means the AEC will be unable to carry out the new law. If Labor's amendment went unchanged, it appears that, for the reasons outlined in the explanatory memorandum to the bill, prisoners who had enrolled could not be removed from the roll and so would remain on the roll.

This does not automatically re-enfranchise prisoners, because under the act such persons would still not necessarily be entitled to vote. Entitlement to be placed on the roll does not connote an absolute entitlement to vote where there is a qualifying condition. Hence, unfortunately it is not correct to say that prisoners have been re-enfranchised under Labor's amendment. Rather, that amendment creates the anomaly that, whilst all prisoners are able to enrol prior to an election and their names cannot be removed from the roll prior to the election, they are nevertheless not entitled to vote—that is, if the AEC know they are prisoners. It does seem, if Labor's amendment goes uncorrected, that more prisoners are likely to be able to vote than were formerly.

Prisoners who are entitled to vote will not necessarily, and do not usually, vote in the electorate in which the prison is situated. Section 96A of the Commonwealth Electoral Act provides that a person who is serving a sentence of imprisonment is entitled to remain enrolled for the subdivision, if any, for which the person was enrolled when he or she began serving the sentence. The AEC confirm that most prisoners cast postal votes for their pre-prison home electorate and that very few prisoners, if any, are enrolled in the electorate in which their correctional facility is located. I got all excited and thought, `Ooh, this change will really influence the election.' I looked up where all the prisons were based and saw how many marginal seats might be affected, but it does not work out that way.

It is arguable that provisions purporting to disenfranchise prisoners are invalid by reason of an implied right to vote in the Australian Constitution. In fact, similar provisions have been held to infringe constitutional provisions in Canada and in Europe. The voting entitlement of prisoners has always been controversial, and the Joint Standing Committee on Electoral Matters have a somewhat chequered history of dealing with this thorny issue. What that committee have never properly addressed is why this double penalty should come through the Commonwealth Electoral Act. If a government were ever to consider that there should be a penalty of not voting then that should be part of the Criminal Code. It is our view that it is a judge who should decide whether or not you deserve to have your right to vote taken away. If a judge is going to decide that the nature of a crime is such that you deserve to have your right to vote taken away then that should be part of the Criminal Code. It has no place in the Electoral Act because essentially it is a double penalty imposed without regard to the crime itself.

It is important to understand that, although prisoners are deprived of their liberty while in detention, they are not deprived of their citizenry of this nation other than by the measures that are in the Electoral Act. As part of their citizenship, convicted persons in detention should be entitled to vote, although I must point out that the Democrats do agree that someone who has committed treason should lose the right to vote. I think that is a logical continuation of a principle because treason is a denial of citizenship.

There is no logical connection between the commission of an offence and the right to vote. For example, a journalist who is imprisoned for refusing on principle to provide a court with the name of a source might be denied the vote if he were imprisoned. To complicate this further, there is no uniformity amongst the states or between the states and the Commonwealth as to what constitutes an offence punishable by imprisonment. In Western Australia, for example, there is a scheme whereby fine defaulters lose their licence rather than go to prison, yet this has not been introduced uniformly in Australia. Why should an Australian citizen in Western Australia who defaults on a fine but is not jailed retain the right to vote, whilst an Australian citizen in another jurisdiction who is jailed for the same offence loses the right to vote? This would be inequitable and unacceptable, and that is what government policy seeks to do.

Senator McGauran —But you're only talking about parking fines!

Senator MURRAY —No, you're not, Senator McGauran. You need to study the subject a bit. Australia is a signatory to the International Covenant on Civil and Political Rights. Article 25, in combination with article 2, provides that every citizen shall have the right to vote at elections under universal suffrage without a distinction of any kind on the basis of race, sex or other status. The existing law discriminates against convicted persons in detention on the basis of their legal status, and it is discriminatory between types of prisoners. This clearly runs contrary to the letter and the spirit of the covenant. A society should tread carefully in this area. All citizens of Australia are entitled to vote. It is the most fundamental tenet of our society and should not be undermined or restricted.

To summarise: where do the Democrats stand on this matter? We believe that people should not be entitled to vote if they are too young, if they commit treason, if they are not citizens or if they are mentally incapable of exercising a vote. We believe that if the right to vote is to be taken away as a result of a crime that a person has committed then that should be done by determination of a judge. This is a matter for the Criminal Code and not for the Electoral Act. That is our position and remains the reason we are disturbed about this form of legislation and this type of approach.