Andrew Murray (WA, Australian Democrats) Share this | Hansard source

The Democrats oppose schedule 1 in the following terms:

(1)    Schedule 1, item 14, page 7 (lines 14 and 15), TO BE OPPOSED.

This item in the bill refers to prisoner voting. In motivating our opposition to item 14, I want to make a number of remarks. I am well aware of the difference of opinion on these matters, but I want to put as clearly as I can the principle and policy position which has consistently guided the Australian Democrats and others who support the right of prisoners to vote. We oppose the government’s intention to repeal the existing voting rights of prisoners on civil and human rights grounds and on basic principles of justice. We are informed by our reading of and our support for the International Covenant on Civil and Political Rights, to which Australia is a signatory, by jurisprudence in other parts of the world and by our view as to how the process of judicial punishment should operate.

As I outlined in my speech on the second reading, we Democrats are of the opinion that the removal of prisoner voting rights is an extrajudicial penalty and, over and above that, is an abuse of an inalienable birthright which belongs to every citizen—and that is the fundamental right to vote. We regard terms of imprisonment as having a couple of main planks to them. The first plank is of course that of punishment for a crime which is considered serious enough to deprive a person of their liberty. The second purpose of imprisonment is to encourage rehabilitation. Unfortunately, far too little money and effort is often spent on that particular aspect, but nevertheless it is universally recognised as the second aspect. The third aspect, which in polite circles people tend to conceal a little, is the aspect of vengeance. It is society taking judicial vengeance on someone for hurting or harming one of their members.

Taking liberty away from a person is a major punishment, but we have not said in this country that if you are imprisoned you become a noncitizen or an alien. We leave with prisoners their rights of citizenship in all respects. Obviously, they are not going to be chosen for jury duty, but there is nothing to stop someone who has been a prisoner from defending the country or carrying out any other act of citizenship. I must say that the one virtue of the government’s proposal is that it does not intend to remove the right to vote from persons who have served terms of imprisonment. In that respect at least they do not follow the barbaric practices of the Americans.

During the debate on the second reading we had some discussion about the question of rehabilitation and the question of the human rights of prisoners. I, with a varied and somewhat interesting background, sometimes think of prisoners in that famous framework of, ‘There but for the grace of God go you and I.’ It is a bit difficult to automatically assume that everyone in prison is an evil rogue worthy of the very worst treatment. Whilst evil does find its expression in prisoners, many prisoners, including some I have met after imprisonment, are simply people who made bad mistakes. I will say in passing that I wish our governments poured more serious resources into early intervention strategies which prevented the sorts of circumstances which lead people into crime and into socially harmful behaviour. Then I think our prison population would decline significantly instead of increasing, as it is at present.

I think the government proposal accurately reflects its conservative nature rather than a liberal inheritance. I have long thought that the liberal name should not apply to the Liberal Party because, generally speaking, the individuals that I meet are conservatives and not liberals. This provision of the government not only removes a fundamental right recognised under article 25 of the International Covenant on Civil and Political Rights but also is inconsistent with recognition by influential courts overseas that prisoners should retain the right to vote. Even on constitutional grounds there is also an argument against prisoner disenfranchisement. Constitutionally the requirement is that the government be elected by the people. The only problem with that argument is that I cannot see prisoners banding together to argue that case before the High Court.

Quite apart from these arguments on human rights grounds, there is also a technical complication. There is no uniformity amongst the states or between the states and the Commonwealth as to what constitutes an offence punishable by imprisonment, and so complications will arise. I have heard the former Special Minister of State, the minister in charge of this particular debate, argue that rapists and murderers should not get a vote. Even if you were to accept that argument, not everyone in prison is a rapist or a murderer. For instance, in Western Australia fine defaulters lose their licence rather than go to prison; however, in other states they can go to prison for not paying a fine. Why should somebody who does not pay a fine lose their right to vote? A journalist may refuse to disclose their source and be imprisoned for it. Why should a journalist who refuses to disclose their source, which in my view is an act of honour in their profession, have to go to jail? We could have a situation where a person who defaults on a fine in WA is not jailed and retains the right to vote while a citizen in another jurisdiction is jailed for the same offence and loses the right to vote. That is inequitable and unacceptable. As you will see from our next amendment, which I will talk to later, we believe that if you want the right to vote to be a question attached to imprisonment then that removal should be a judicial penalty. It should be made by a judge and it should not be imposed as a general provision in law.

I am indebted to the Justice Action Group, which have been campaigning on this issue of prisoner voting. I have read many extracts from some of the cases they quote in their pamphlet. They quote a few things that I know to be so. For instance, they have indicated that Commonwealth nations like Canada and South Africa have removed these sorts of discriminatory laws. There is a quote, which I remember, in their pamphlet from Chief Justice McLachlin of the Canadian Supreme Court in the case of Sauve v Canada on 10 December 2002:

Denying penitentiary inmates the right to vote is more likely to send messages that undermine respect for the law and democracy than messages that enhance those values ...

They also quote the European Court of Human Rights, which recently ruled in favour of giving British prisoners the vote:

Prisoners lose their liberty, not their place in the human race nor their position in the society.

That is from Hirst v the United Kingdom No. 2, 6 October 2005. They also say in their pamphlet:

There is no evidence that disenfranchising prisoners deters crime or assists in rehabilitation.

It is more likely to increase alienation and disengagement from mainstream society and any sense of civic responsibility.

This would disenfranchise 25,353 voters of which more than half are expected to serve sentences of less than two years; ie who are likely to be released within a political term.

It is a double disenfranchisement for the 5,656 Indigenous people in jail who lost their ATSIC vote last year.

The pamphlet also says:

Removing prisoners’ political voice means politicians can now officially ignore prisons and prisoners. They have sentenced them to civic death.

Whilst I do not believe that the government is just going to ignore prisons and prisoners—I do not think that should be a consequence of this—this is in a sense a sentencing to civic death, as dramatic as that sounds, despite the fact the minister said—and you did amuse me, as you sometimes do, Minister—he had never had someone in a criminal case plead with him to preserve their vote. I suspect that prisoners value their vote as much as the ordinary Australian does. Of course, I have no way of knowing that and I suspect that you do not either. So, there we are. With those remarks, I oppose this provision.