Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Hansard source

I wanted to make a contribution to this second reading debate because the legislation raises a couple of really interesting issues, particularly when you examine the issue of prisoner disenfranchisement which is part of it. Hirst is a notable English case that is relevant to this and I think it makes the position clear. There are three cases that I want to talk about. The first is Hirst v the United Kingdom (No. 2) of March 2004. One of the issues raised there is that the UK had a similar position to what is being proposed here. Although it was different in kind, it was effectively a blanket disenfranchisement of prisoners in the voting process.

That case was concerned with the interpretation of article 3 of the first protocol of the European Convention on Human Rights, which, granted, does not apply here, because of course we do not have a similar protocol. But it is unusual for this government not to take cognisance of international arrangements and protocols that apply. I am curious as to why the government is ignoring this position that seems to have been accepted more broadly than just in the United Kingdom, and I will go to that shortly. Article 3 states:

The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.

The UK had asserted two aims in the legislation. The first was to prevent crime and punish offenders and the second was to enhance civil responsibility and respect for the rule of law by depriving those who had seriously breached the basic rules of society of the right to have a say in the way such rules are made for the duration of their sentence. That seems to be in accordance with what this bill might be trying to achieve. This point was also borne out in Sauve v Canada (Chief Electoral Officer), which I am sure your officers, Minister, would also be familiar with, along with the case I just mentioned. But with regard to the second of those objects, the court followed the reasoning of the Supreme Court of Canada, as I just mentioned. They said:

To deny prisoners the right to vote is to lose an important means of teaching them democratic values and social responsibility.

It is interesting that you have not taken due cognisance of the cases that I have mentioned. Surprisingly, you have not followed the dicta in those; you have chosen instead to follow a separate course. As to the object of punishment and deterrence, the court again favoured the Sauve judgment insofar as it found no evidence in support of the proposition that disenfranchisement deterred crime and it found that a blanket removal of the vote from prisoners per se disclosed no rational link between the punishment and the offender.

This is an interesting proposition. If the matter is relevant to the removal of the right, it might be a legitimate purpose or aim or object. But where there is no rational link then you really have to question whether the blanket removal is rational or legitimate. The course you are adopting stands in stark contrast to those two cases, the UK direction and the Canadian direction as well, which is surprising. I am happy for the coalition to substantiate their position. There could be the unique circumstances where you remove the right of a person who has offended the roll, and you remove their right to vote because they have not exercised their right to vote. It is an offence. Therefore it is not considered a double punishment; it might be that the punishment fits the crime in the sense that you are punishing them for not voting by removing their right to vote.