Mrs Bronwyn Bishop (Mackellar, Liberal Party, Shadow Minister for Seniors) Share this | Link to this | Hansard source

by leave—I move opposition amendments:

(1)    Schedule 2, item 2, page 9 (line 23), omit “3 years”, substitute “1 year”.

(2)    Schedule 2, item 3, page 10 (line 8), omit “3 years”, substitute “1 year”.

(3)    Schedule 2, item 3, page 10 (line 11), omit “3 years”, substitute “1 year”.

(4)    Schedule 2, item 3, page 10 (line 19), omit “3 years”, substitute “1 year”.

(5)    Schedule 2, item 3, page 10 (line 22), omit “3 years”, substitute “1 year”.

I agree with the Special Minister of State that this is an important issue, and the fact that 17 members have chosen to speak on it indicates that it is seen by the members of the House to be important.

I would like to support my amendments on two bases. The import of my amendments are to lower the disqualification period for prisoners from three years to one year, and that would bring it in line with the one-year period that the Constitution provides in section 44(ii) where a person, being a member of parliament or standing as a member of parliament:

Is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer …

               …            …            …

… shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

It seems to me that the argument that the provision of the right to vote and the right to be selected and to sit in the parliament are unconnected is not a good argument. Indeed, the High Court in its majority judgment in Roach v Electoral Commissioner specifically said—and they were Justices Gummow, Kirby and Crennan—that the Commonwealth had argued:

… 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.

The court said:

That submission should be rejected as being too wide.

In other words, the connection does maintain.

If you look at state governments, they have a variety of disqualification periods, from no disqualification, to one year, to three years, to five years and so on. It is important that here at the Commonwealth level we set a true basis for the decision that we as a parliament exercise the right given to us in the Constitution to determine when the franchise can be exercised, and more particularly in what circumstances you can be disqualified from exercising that right to vote, which is seen as being part of what a citizen does when they are part of the community.

But in addition to that I want to point out that, on a practical level, whereas the court in that narrow 4-3 decision said that any person who is subject to a prison sentence should be disqualified for voting was too broad, very often a dissenting judgement in a High Court case subsequently becomes the prevailing decision of the day because the High Court is not bound by its own decisions. I also want to point out, as I did in the course of my speech in the second reading debate, that the nature of the criminality of people who are serving sentences of less than two years is really very significant. I cited three examples, and I will cite them again because it is important that we know just what sort of person we are talking about when we say they should be disqualified while serving that sentence.

One person is serving two years 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. If we pass my amendment, this offender would not be allowed to vote. If the government’s position of three years is maintained, he will be entitled to vote—as indeed will this person with a 2½-year sentence: a teacher who sexually abused three young boys at school and on camping trips in Western Australia. He lured children into his office block, stripped them down—I will not going into further details. A boy was assaulted. Another boy was assaulted in a tent on a camping trip, as were two other boys under 14 and so on. He got 2½ years. Under my amendment as moved, he cannot vote. (Time expired)

Alex Hawke (Mitchell, Liberal Party) Share this | Link to this | Hansard source

I rise to support the member for Mackellar’s fine amendments to this proposed legislation from the government on the basis that we have heard in this debate a number of things that I do not think are valid in relation to prisoner voting. It is important that we take note of some of these arguments as we move forward from this juncture.

I do not think it is right that member for Werriwa comes in and says that people who are in prison are highly illiterate, they are uneducated, they are on the wrong side of society so, therefore, we ought to grant them the vote. I have no doubt that may be the case with many people who are in prison, but surely our responsibility as a society is to deal with those issues and assist those people with their problems, not say, ‘Well here is a great gift of enfranchisement of voting within our society.’ That is why I find this a necessary amendment to the legislation that is proposed to the House today, because the government is seriously proposing to enfranchise people who are serving custodial sentences of one year or longer for really no logical basis. There is no real argument that has been put forward here in this House today, other than the member for Werriwa’s bizarre interpretation that theoretically there could be one day, according to one academic that he read out, a large number of people who were imprisoned who all of a sudden would then need to have the right to vote against the legislators who had imprisoned them—presumably on some sort of false basis. If you are finding that a bizarre argument, Mr Deputy Speaker, I can tell you I found it quite a bizarre academic argument as well.

The reality is, as the member for Mackellar has pointed out, there are people who have committed serious offences serving custodial sentences who will vote on who legislates in this society. I do not understand how that is a better outcome for us. I do not understand why the government wants to pursue this as such a matter of importance, considering that really this has no impact upon the electoral system, other than we must set those foundational principles as a society which says, ‘If you commit these acts, you ought not to have the right to vote.’

We have already heard that the Constitution states that you cannot serve as a member or a senator in this place with a custodial sentence of a year. It is a fine instrument from Federation, in the very foundation of the law of our land, that gives the setting and the message that they wanted to send—that is, prisoners serving a custodial sentence of one year or more could not serve here. If they cannot serve here then it would be odd to extend the vote to ensure that they can vote on who does serve here. It is an odd setting, and that is why I think it is a very worthy amendment.

The member for Mackellar also proposed another amendment, which is also very worthy. In this case, the government has failed to outline the guiding principles that it wants to see as a government in terms of the integrity of the electoral roll. Again, this is this tension between the judicial and legislative branches in our society. It is the role of the legislature to set policy. It is the role of the legislature to spell out its intentions in legislation. We ought not to be afraid of that. When we stand here looking at this fundamental guiding principle for our democracy—who gets the right to vote and when—I do not have a problem with standing on the right side of ensuring that people have an obligation to put themselves on the electoral roll. They have a legal command obligation with a sanction at law to do so—an imperative that forces them to do so. I find the legislation before the House, with these two particular sections, to be reactionary. The legislation is looking at the High Court’s judgements in a very narrow way and not looking at the full implications of where we believe we should head as a society. These two very fine amendments from the member for Mackellar ought to be thoroughly supported by the House.

Mrs Bronwyn Bishop (Mackellar, Liberal Party, Shadow Minister for Seniors) Share this | Link to this | Hansard source

I am making the case out by example to give effect, virtually, to the considerations of the High Court that said that the question of disenfranchising a person—disqualifying them from the right to vote—is a very, very serious issue. It has to be a serious matter that causes that disenfranchisement. I am making the case that three years for people whose disenfranchisement from voting would otherwise be seen to be seriously justified is too long, whereas the one-year period would accommodate the High Court’s decision, because the High Court makes it quite clear that under the Constitution members of parliament are given the right to determine when disenfranchisement may occur.

As of 30 June 2006, when the 2006 legislation was passed, there were 20,209 prisoners in Australia serving a sentence. That is distinct from 5,581 who were either on remand or unsentenced—we are only dealing with prisoners under sentence. Of the 20,209 prisoners, 35 per cent were serving two years or less. That is why I chose to give the two examples of people serving a two-year sentence and a 2½-year sentence, and I will give another example of a person serving a two-year sentence. A man who possessed, accessed and transmitted child pornography was among 19 men arrested in Australia by the AFP as part of a 12-month global child abuse investigation. The charges relate to more than 10,000 images and 250 videos. Many of the people on these types of sex charges do seem to get a sentence which is under three years.

I would like to contrast that with the situation for a member of parliament or somebody who is seeking to be elected to the parliament and section 44 of the Constitution. There are two relatively recent examples of how this applies. One was Keith Wright, who was the Labor member for Capricornia from 1983 to 1993. He was sentenced to eight years jail on 28 October 1993 for child sex offences. He was charged in August 1992 while still a member of parliament but he was not sentenced till after the election. He did attempt to stand for the 1993 election as an Independent, but he was, of course, not elected. Had he been elected he would have been unable to take his place in the parliament because of section 44 of the Constitution. Another example was Andrew Theophanous, the Labor member for Burke, who was charged, found guilty and sentenced to six years jail for bribery, conspiracy and defrauding the Commonwealth in relation to immigration matters. He too attempted to seek election as an Independent and was soundly defeated, but had he been elected he would not have been permitted to take his seat in this place because his sentence was for one year or more.

So I think there is a very sound argument for setting in place a truly sensible situation with regard to disallowing prisoners to vote and make it the same period as operates for members and senators being unable to be chosen or take their place in the parliament or continue to sit in the parliament if they are so sentenced.

In putting this proposition forward, I would point out that over the years there have been a variety of terms. It began in 1902 with one year—I think they got it right. In 1983 the Labor Party government put it up to five years. It went back to three years. When the High Court was giving its deliberations in Roach, it found very simply that three years was still constitutional. In other words, the parliament has the right to determine the matter.

Gary Gray (Brand, Australian Labor Party, Minister for the Public Service and Integrity) Share this | Link to this | Hansard source

The government will not be supporting the amendments proposed by the shadow minister. The reduction of the proposition in the bill from three years to one year is simply not consistent with the decision of the High Court or with decisions of the previous, Howard federal government.

The bill gives effect to two judgments of the High Court that found that amendments to the Electoral Act made by the coalition in 2006 were inconsistent with the Constitution. One of the coalition’s 2006 amendments removed the right to vote from all persons serving a full-time sentence of imprisonment. This was the first time in many decades that the right to vote in federal elections had been completely stripped from full-time prisoners. The bill amends the act to reinstate the situation that existed prior to the coalition’s 2006 amendment. That is to say it reinstates the situation that existed for 10 years of the Howard government. It would provide prisoners serving a full-time sentence of less than three years the right to vote.

The amendments to the bill now proposed by the shadow minister would remove the right to vote from prisoners serving a full-time sentence of one year or longer. The government has received legal advice on the international law aspects of this proposal from the Attorney-General’s Department that states that limiting the right to vote in the way envisaged by the shadow minister’s amendments would ‘not be objective, reasonable or proportionate according to the standards of international law in this area’. The advice concludes: ‘Such a ban would be unlikely to comply with Australia’s human rights obligations.’ The obligations in question are contained in article 25 of the International Covenant on Civil and Political Rights, which was ratified by the coalition government in 1980, a government led by Prime Minister Malcolm Fraser, ably assisted by former Prime Minister John Howard. Of course, a member of that government was Mr Philip Ruddock, the member for Berowra, who is currently a member of this place.

The shadow minister is now proposing to ignore this international legal obligation entered into by a coalition government and supported for over a decade by the former coalition government. She is intent on trashing Australia’s reputation on the world stage in relation to civil and political rights. I do acknowledge that this would be entirely consistent with the long-running assault on the achievements of Prime Minister Malcolm Fraser and that the measures in the bill would be considered far too liberal—truly liberal, indeed—for the member for Mackellar. Not only this but she wants to blindly pursue a political objective which the shadow minister knows has been exposed by the High Court as being contrary to our Constitution.

However, we need to be crystal clear here. The shadow minister is using this amendment as a smokescreen to hide her real intention to attack other key provisions of the bill, namely, the reinstatement of the seven-day close of rolls period. The provision seeks to give effect to the second High Court decision, that of Rowe v Electoral Commissioner, a decision which resulted in 57,732 additional Australians being added to the electoral roll. The bill would update the Electoral Act to reflect the current constitutional position as declared by the High Court in the Rowe decision to restore the close of rolls period to seven days after the date of the writ for a federal election or a referendum.

The opposition’s real motive here is to deprive Australians of their democratic right to elect their political representatives. The opposition’s obsession with this goal has produced an approach that regards ignoring the High Court—ignoring Australia’s Constitution—and our international obligations as simply acceptable collateral damage, even a political tactic. The High Court has made decisions, finding aspects of the coalition government’s 2006 amendments to be unconstitutional. What part of this don’t we get? Our duty is to faithfully reflect those judgments in the electoral law of the Commonwealth.

We now seek to achieve this in the bill before the House today. The government seeks no more than to simply enact the principles determined by the High Court. The government simply does not support the opposition’s irresponsible amendment. Instead, we will continue to follow an approach that is based upon historic precedent, our international obligations, our electoral culture, practices and conventions, decency and proportionality and the consistent and unswerving commitment to the fundamental principles of our democracy, our Constitution and the decisions of the High Court.

Mrs Bronwyn Bishop (Mackellar, Liberal Party, Shadow Minister for Seniors) Share this | Link to this | Hansard source

Let me make the position quite clear. I said with regard to the closing of the rolls that it is something we would readdress in government and I set out all the reasons why that is the case and cited various tranches of the High Court judgments to support that position. We are not attempting to oppose that provision in this bill. But the Special Minister of State is also quite right: I am definitely, absolutely and positively trying to deny the right to vote to the man, a teacher, who got a two-year sentence for sexually abusing three young school boys on camping trips. Yes, I would like to disenfranchise that man from voting; you apparently would not.

Sharon Bird (Cunningham, Australian Labor Party) Share this | Link to this | Hansard source

The member will address her comments through the chair, not at the chair.

Mrs Bronwyn Bishop (Mackellar, Liberal Party, Shadow Minister for Seniors) Share this | Link to this | Hansard source

Through the chair, yes. A man is serving 2½ years in jail. He had gone to his ex-girlfriend’s home at 1.15 in the morning armed with a shortened .22 rifle and thrown furniture aside in the house. He had gone outside the unit, fired several shots into the air and then demanded to be let back in. His ex-girlfriend fled. He then started firing at other people who came to her aid. Yes, I would deny him the right to vote. The Shadow Minister of State seems to think it is proper that he have the right to vote. I do not. Yes, I would deny somebody who has been found to have 10,000 images and 250 videos of children who are being sexually abused the right to vote. Yes, I would deny him the right to vote because he got a two-year sentence.

I ask you, Special Minister of State, whether you are serious about valuing the right to vote in this country and about valuing those decisions given in the High Court. They showed the history of the provision of disenfranchisement for prisoners and showed that from 1902 to 1983 there was no change, and it was one year. It is the same time for members of parliament—for Mr Theophanous and for Mr Wright being disbarred from this parliament, if they had been successful.

The point is that we need to have some consistency and to recognise, as the High Court recognises, that the members of the parliament have the right to decide—given expressly in the Constitution—on what basis a person should be disenfranchised from the vote. All through those judgments, every last one of them, they are concerned that it is in proportionality—that the degree of seriousness that a person has to offend society in order to be disenfranchised must be serious indeed. If we cared to go through the media we would find many more reports of people who are entitled to vote—you say you want to uphold their right to vote—and I say they should be disenfranchised.

By having a one-year period, you could say that a misdemeanour or a lesser crime being committed is not a serious offence against the nation and therefore should not be disenfranchised. That is certainly not the position with the examples that I have put to you as upholding the proposition that we should lessen the period from three years to one year. Any decent Australian who listens to those arguments would be in agreement. It is proper to put a disenfranchisement provision in our law because we have made a decision that certain people have offended against the community to such a degree that they should not be allowed to have a vote counted in an election. By our lowering that period from three years to one year, we would bring about a just position. But to hear the argument that you said I am using this as a shallow false argument—

Ms Anna Burke (Chisholm, Deputy-Speaker) Share this | Link to this | Hansard source

I am sorry, but again would the shadow minister direct comments through the chair.

Mrs Bronwyn Bishop (Mackellar, Liberal Party, Shadow Minister for Seniors) Share this | Link to this | Hansard source

Through the chair, Madam Deputy Speaker. For the Special Minister of State to say that I am using this as a subterfuge, to somehow say that there is a second agenda on this particular point, is false, misleading and just plain wrong. The fact of the matter is that these people deserve not to vote, and by having these provisions that I have moved enacted the rest of your bill will be supported by the opposition. That is our position. I put it strongly to you, Special Minister of State, that you should reconsider and not just read out what is a political position that you should accept the amendment and let the bill pass. (Time expired)

Question put:

That the amendments (Mrs Bronwyn Bishop’s) be agreed to.

Harry Jenkins (Speaker) Share this | Link to this | Hansard source

The question is that the bill be agreed to.

Question put.