3.3.11 Electoral and Referendum Amendment (Enrolment and Prisoner Voting) Bill 2010

Wednesday, 04 May 2011

 Mr HAWKE (9:59 AM) —I rise to speak on the government’s Electoral and Referendum Amendment (Enrolment and Prisoner Voting) Bill 2010. It is quite instructive to follow the member for Banks in this debate. He made some pertinent points. The legislation before us is a result of a High Court decision. The High Court has interpreted the Constitution in a certain way. I think the member for Banks is correct in saying that we do not always have to do what the High Court says in relation to this. We have a separation of powers in our society. We have a legislative branch and a judicial branch and often they may disagree on points. In my view, this is not the end of this debate. Many of the issues contained in the legislation will be revisited in the future.


While the government may have the numbers to get this legislation up, it is not unusual with the passage of time for the High Court to alter its decisions or for matters to be revisited. With the nature of the dissenting reports and the 4-3 split decisions in particular in some of the High Court verdicts, I think what we see is a genuine division in terms of how we should proceed.


As the legislative branch, we should not be afraid of legislating—of setting what we believe are the fundamental principles for the integrity of the electoral roll and who can and cannot vote based on sound principles. It is a sound principle to say that people serving prison sentences should have their rights suspended. We suspend their right to liberty anyway by putting them in prison. I do not understand the argument that somehow they have a ‘super-right’ to vote above and beyond the right to liberty and their pursuit of happiness after committing a crime that leads to a custodial sentence. Society has already taken the decision to suspend most of their rights, but to say that somehow they have this ‘uber-right’—they have this absolute right to vote regardless of any other right or any act they have committed or anything that has happened—is an odd contention.


So I do not find it unreasonable that the coalition amended the legislation to provide that prisoners serving custodial sentences of longer than three years ought not to choose the legislators that make the laws that put them in the prison they are in. I do not find that unreasonable. I do not think the average person in our community would find that unreasonable. Often the judicial branch is regarded as out of step and out of touch with community attitudes in relation to these sorts of matters. I think custodial sentences and prisoners voting in elections are a fine example of where the judicial branch has not got the right tenor of the public view.


The coalition, of course, has acknowledged the High Court’s decision. I think it is important to note that this was a narrow decision in relation to a blanket exclusion. It did not—and I think this is where the Labor Party is being a little cute—seek to invalidate the general principle that the franchise may be removed from certain prisoners. That is why we will be moving an amendment to provide that this be reinstated for custodial sentences of one year or more. I think this is a valid way to proceed considering that the Constitution, at section 44(ii), says that any person who:


… 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.


To clarify this for anybody listening today: you are incapable of serving as a member of the House of Representatives or sitting in the Senate if you are serving a custodial sentence of one year or more. Yet you are capable of voting on who can be a member or senator in this place. It seems odd; that that would be the case seems not the intention of the founding fathers of the Constitution.


I do not think it is unreasonable for us to propose that, if you are serving a custodial sentence that prevents you from serving in this place—from holding office as a member or senator—you are not to have the right to select a member or senator or have influence over what laws are made. It is not an unreasonable proposition. I think the coalition is entirely reasonable and within its rights. I think it is also reasonable to suggest to the judicial wing: you may have a view about a particular court case that had a particularly impact on a particular group of people, but the parliament may disagree.


I note the member for Maribyrnong, who is at the table, is laughing. What is funny about this? We are talking about a very small group of people who are in prison for offences. We are not talking about a major impact on the electoral roll; we are not talking about altering the outcome of elections; we are talking about a general principle in our society that says you cannot serve in this place if you have been sentenced. And it therefore follows that you ought not to be able to vote. This is not a political manoeuvre. There is no real value in this for anybody. It is simply a matter of setting these principles and standards and making them consistent across the board.


This bill has another serious aspect to it, in relation to enrolment. This has been the subject of much discussion over the past few years, including in the lead-up to the 2007 election. The bill seeks to return the law to the situation where the close of rolls would occur seven days after the issue of the writ. In relation to this issue, the first point I would make is that the contention was that the coalition’s changes in 2006 somehow disenfranchised people. The member for Banks was keen to talk about disenfranchisement several times in his speech: ‘People were disenfranchised. People lost the vote—it is outrageous.’ The idea was that the current law—that you must be on the electoral roll and must maintain the correct enrolment address according to the provisions of the Electoral Act—would not apply to those people who could all of a sudden enrol once an election is called. Those who do the right thing make up the bulk of voters in our society today. The situation was that people who did not meet the well-outlined deadlines and rushed to vote at the last minute were in the same category as people who had maintained the correct enrolment all through the year, in accordance with the law of the land. Somehow there was something wrong in us asking people to comply with the law and be on the electoral roll.


Again, I find this an odd argument. It is undermined by the fact that the submission of the AEC to the Senate inquiry noted that under the new rules in 2007 the number of people missing from the close of rolls in 2007 was 100,370 and in 2004 this was 168,394. So during just a three-year cycle 68,000 people were added to the roll, with the new legislation under the Howard government. That is a reduction of 40 per cent. The member for Banks said that people have been disenfranchised. The facts are very different. Actually, 40 per cent more people were franchised as a result of the legislation and campaign to ensure that people enrolled by the correct time and date and there was a consequence if you did not. It is no different from any other form of government activity that we set up. This is the question that the Labor Party has to answer: why should we treat the electoral roll, which is such an important and fundamental plank of our democratic society, as anything less than our other instrumentalities?


We have punitive and enforceable measures in the Income Tax Assessment Act, for example. When the government wants revenue it will have what it wants you to do by the date it wants you to do it by or it will hunt you down until it gets that revenue. But with the electoral roll the attitude is: ‘Let’s relax. We can have people come on after the writs are issued. We don’t really mind if we get a lot of people coming on. What’s to worry about; we just want to enfranchise everybody.’ That is not the way to proceed with something so important. If it is good enough in all our other forms of legislation that we ensure there are deadlines, constraints and principles, it is only common sense to say on the closure of the electoral roll that there ought to be a deadline and that people have to meet that deadline.


We have heard a lot about the court case involving GetUp! The issue was comprehensively dealt with by the High Court, which ruled in favour of GetUp! 4-3 in a split decision. There were plenty of dissenting judgments, including one by Justice Heydon, which is particularly damning of what we would regard as the hypocrisy of the plaintiffs and the poor nature of their arguments. Justice Heydon said:


The plaintiffs were prevented from exercising their entitlement because they failed to comply with simple obligations and procedures …


All other voters outside the three exceptional classes who fail to enrol or transfer enrolment are the authors of their own misfortunes. They have not taken steps to enable them to vote which were not only available to them, but required of them by s.101. They are simple steps. It would have been very easy to take them. There was ample time to take them.


It is they who disqualify, disenfranchise, exclude or disentitle themselves, not the legislature.


The legislation placed no “burden” and no “disproportionate” burden. If there were any burden on anyone, it was a burden which those who bore it placed on their own shoulders.


There is a statutory command to claim or transfer enrolment. That command is backed by a criminal sanction. The plaintiffs did not dispute the constitutional validity of either the command or the sanction. What they demand is an entitlement to continue disobeying the command and ignoring the sanction for longer periods than the impugned provisions allow.


This is a very sound dissenting judgment. What you hear from Justice Heydon goes to the heart of everything we do in this place and to what I regard as the biggest difference between the Labor Party and Liberal Party. What kind of society is it that we seek to set up? Is it one where responsibility is a key word, the responsibility of the individual to do the right thing, to look after themselves and to conduct themselves in accordance with the law or do we seek to make exemptions and allow people to get away with breaking the law? Justice Heydon is very clear in this regard. This is a law. It has a criminal sanction. It is required of people to be on the electoral roll. There was plenty of opportunity for people to access the electoral roll. Nobody is denying people the opportunity to enrol to vote. It has never been contended that anyone ought to have the right to deny someone the right to vote, but they have to comply with the simple, as Justice Heydon puts it, procedures. It is very simple: all you have to do is get a form, fill it out and lodge it.


There are very few other requirements today to get on the electoral roll, yet we have this contention that people are somehow being disenfranchised. It is a completely odd and bizarre contention, in my mind. We ought to pause and be very careful about this because, while the High Court might have by a 4-3 judgment made a decision in that particular case, it is not outside the realms of possibility this will be revisited in the future. That very valid dissenting judgment by Justice Heydon may end up becoming the law and may end up becoming the majority view of the High Court. To simply say that this has happened and it is all over is wrong. It is a reasonable and plausible contention for the legislature of this country to say that people ought to comply with the law. There was no challenge to this part of the law that says you must be on the roll or you will face a sanction.


This legislation before us today, as the member for Banks says, is reacting to the High Court, but there is a tension in democratic society between the judiciary and the legislature, and the legislature has a strong role to play. I am an advocate for the supremacy of the legislature. We are the people’s house. We get voted here to put in place laws to govern society and ensure the smooth running of the Commonwealth, and the electoral roll is a fundamental tenet of what we do here. It is well within our rights as a parliament to pause and say that there are two very important parts of this legislation where we need to think about what we are doing. We need to be consistent with the Constitution on prisoner voting. On enrolments, we can validly say that people ought to comply with the existing law of the land—that is, comply with the requirements of the Electoral Act.

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