Senator FIFIELD (Victoria-Manager of Opposition Business in the Senate) (10:58):
I rise to speak on the Electoral and Referendum Amendment (Enrolment and Prisoner Voting) Bill 2010. This bill seeks to make two changes to electoral law that the coalition finds objectionable.
The bill also makes two uncontroversial amendments to which the coalition is not opposed. The Opposition sees no problem with allowing prisoners to remain enrolled on the electoral roll even if they are not permitted to vote-which is the substance of the first non-controversial amendment. The coalition also has no objections to the second non-controversial amendment, which fixes an anomaly in the Electoral Act to ensure that all provisions of the act apply in the event of a half-Senate election. These two amendments are common-sense changes and the coalition does not seek to oppose them.
However, the other two changes proposed in this bill are neither sensible nor common sense and the opposition cannot support their passage through this chamber.
The first undesirable change proposed in this bill relates to enrolment and the date of the closure of the electoral rolls before an election. The government alleges that this change is designed to make sure that people are not excluded from voting. The government claims that previous amendments to the Electoral Act made in 2006-which changed the time of the closure of the electoral law from seven days after the issue of the writs to 8 pm on the day the writs are issued -prevented many people from voting. This claim is pretty simplistic, to say the least. Certainly, the number of new enrolment or changes of address that the AEC dealt with dropped from 520,000 in 2004 to 263,000 in 2007 after the amendments to the Electoral Act were made in 2006.
However, the amendments were accompanied by a strong advertising campaign funded by the then government to encourage people to enrol earlier. This is reflected in the fact that fewer people missed the enrolment deadline in 2007 than in 2004. In 2004 168,394 people missed the deadline of seven days after the writs were issued. Yet in 2007, when the deadline fell at 8 pm on the day the writs were issued, only 100,370 people missed the deadline. So we actually saw a drop in the number of people who were unsuccessful in their enrolment because of the deadline when it was moved forward under the 2006 laws.
Let us not forget, that it is indeed a criminal offence in this country to not be enrolled to vote once you are over the age of 18 years. What other laws are there that, when we break them, lobby groups like GetUp claim we are victims of some right-wing conspiracy of the Howard government? If we do not pay our taxes, noone goes out on a limb to defend our rights to belatedly get the money to the tax office. If we forget to put on a seatbelt, no-one argues that they were not given enough time to do it up before driving off. In this country we are all bound by legal imperatives. Yet the legal imperative to be enrolled to vote and to have your enrolment record up to date is not sufficient for groups like GetUp. They feel that they need to sort of ride in on a white horse in case anyone has forgotten-
Senator Conroy: They did win the case.
Senator FIFIELD: As I was saying, GetUp have this irresistible urge to ride in like a knight on a white horse ready to right a great wrong. In this case, GetUp sought to do that just in case anyone had forgotten not to break the electoral laws of the land.
Moreover, part of the reason the previous government felt the 2006 amendments to the Electoral Act were necessary was the legitimate concern about the possibility for electoral fraud from high levels of new enrolments after an election has been called. The integrity of the roll can be easily compromised when you have large numbers of people enrolling themselves at the very last minute, after an election has been called, particularly in a marginal seat. That does open the prospect of a compromise of our electoral system.
The decision of the High Court in the case of Rowe v The Electoral Commissioner, which relates to the time of the closure of the electoral rolls, was interesting because the dissenting judges were very strident in their opposition to the decision which declared the 2006 amendments unconstitutional. In particular, Justice Heydon was strongly opposed to the decision. He said of GetUp’s actions, in which they deliberately confected late enrolments in order to appeal to the High Court when their enrolments were rejected, and I quote:
“The plaintiffs were prevented from exercising their entitlement because they failed to comply with simple obligations and procedures.”
He also said:
“All other voters outside the three exceptional classes who fail to enrol or transfer enrolment are the authors of their own misfortune.”
Let me repeat that. Justice Heydon said that they are ‘the authors of their own misfortune’. He continued:
“They have not taken the 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.”
I want to reemphasise what Justice Heydon said there. He said:
“It is they who disqualify, disenfranchise, exclude or disentitle themselves, not the legislature.”
Spot on! They are very strong words and, in my view, they are entirely accurate. It is not the Electoral Act that disenfranchises a person, but rather a person’s unwillingness to take the simple steps required of them by law to maintain an accurate enrolment. It is not the job of the state to be lenient on people who fail to do what is required of them by law and who lose out as a result of their own actions.
The second objectionable change proposed in this bill relates to the eligibility of some prisoners to vote. Prior to 2006, any prisoner serving a custodial sentence of three years or more was prohibited from voting in federal elections. In 2006, the Electoral Act was amended so as to prevent any prisoner serving a custodial sentence of any length of time from voting.
The bill before us today reverts the law on prisoner voting back to the legislation that existed prior to the 2006 amendment, in line with the High Court decision in Roach v the Electoral Commission. The coalition introduced that amendment in 2006 because we believe that people who commit crimes sufficient enough to warrant a prison term should not, while serving that prison term, be entitled to vote and thereby exercise influence on the society whose laws and rules they have disregarded. We believed that in 2006 and we believe that now. People serving prison sentences have committed significant crimes and have proved themselves unwilling to accept the laws that govern this country. As a result, they have forfeited their right to have a say on the governing of this country for the period of their prison sentence.
I trust that I do not need to go through an extensive list of the crimes committed by people currently incarcerated in prisons across the nation. These people have broken laws and many have committed truly heinous crimes. Why on earth should our worst criminals be afforded the same voting rights as Australians who live their lives within the bounds of the law?
This bill is contrary to the principles that form one of the foundation stones of the justice system in Australia. We believe that if you refuse to live by the laws of our community, then you lose your right to participate in our community. That is after all why we send criminals to prison. But a prisoner voting in an election necessarily constitutes participation in the community in which they have forfeited their right to participate by committing a crime. The Labor Party is therefore undermining on a fundamental level one of the principles from which we derive our sense of justice in this country.
There is no compelling reason why this bill should go back to the three-year custodial sentence period as the cut-off point for prisoner voting. It would make much more sense for the cut-off point to be at the one-year mark. Section 44 (ii) of the Constitution states 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.
So you cannot run for office if you are serving or are going to serve a prison sentence of one year or more. Should this rule not apply to voting eligibility as well? We think it should. The coalition believes there is a compelling case to connect this legislation with this section of the Constitution, and I will be moving amendments-which have already been circulated in the chamber-to this bill to that effect.
These amendments have two key justifications. Firstly, the amendments lower the maximum sentence served for which prisoners may still vote from three years to one year. This would bring the electoral law in to line with Section 44 (ii) of the Constitution, as I outlined before. The coalition believes that connecting this section of the Constitution with the Electoral Act is common sense, as the right to vote is very much linked with the right to run for office and serve as a member of parliament. Indeed, the High Court of Australia, in its majority judgment on the case Roach v Electoral Commissioner, rejected the idea that the right to vote and the right to be elected and serve in parliament are not connected.
Secondly, these amendments recognise that many prisoners serving sentences of two or three years have committed significant, often abhorrent crimes. Certainly, removing someone’s ability to vote is significant and should not be done lightly. But some of the crimes committed by people who will serve prison sentences of between one and three years are particularly offensive. Some child sex offenders are sentenced to less than three years in prison. Some perpetrators of extreme physical abuse involving the use of weapons are sentenced to less than three years in prison. Some people who perpetrate horrific violence on other members of our community are sentenced to less than three years in prison. Some people who are convicted of owning and disseminating child pornography are sentenced to less than three years in prison. If this bill goes unamended by the coalition, many of these criminals will be granted the right to vote. I think this is a serious affront to the community’s sense of justice.
People serving prison sentences are doing so because they were unwilling to accept the laws that govern this country. The coalition believes that, as a result of their unwillingness, they forfeit their right to have a say on the governing of this country for the period of their prison sentence. I asked this question previously and I will ask it again: why should some of the worst criminals be afforded the same voting rights as Australians who live their lives within the bounds of the law?
This bill is an insult to some of the principles of justice in our community. The reason we build prisons and lock people up in them is because we believe that if you refuse to live by the laws of our community then you lose your right to participate in our community, and voting for your choice of government is certainly part of participating in your community.
The amendments that the opposition will propose will bring the electoral laws into line with the Constitution in a sensible way. I am sure that most Australians would agree that there are criminals out there whose crimes are so serious that they do not deserve to vote. They do not deserve access to the rights and privileges of Australians who choose to live their lives within the bounds of the laws that govern our society. I will move these amendments in the committee stage. I put these amendments to the Senate and strongly recommend that they be passed.
The Labor Party has an appalling track record when it comes to trying to tweak electoral laws in their favour. That is why we must always be wary of the motives in legislation. It was not that long ago that there was still a state Labor government in New South Wales where we saw the efforts of the Labor Party there, with the support of the Greens, change the electoral laws in that state to the benefit of those two parties. Indeed, the Labor Party has twice now attempted to change the federal electoral laws in their favour. I refer, of course, to the Commonwealth Electoral Amendment (Political Donations and Other Measures) Bill 2010. Despite those opposite constantly complaining about the undue influence of big donations, that bill makes no attempt to regulate the biggest donors in Australian politics-the trade union movement. Why? Because we know where they get their money from.
But back to this bill, the bill in question: this bill makes two entirely unacceptable changes to the electoral laws of this country, and the coalition cannot and will not support either of them. We reject measures that will compromise the integrity of the electoral roll and we reject measures that give criminals the same voting rights as law-abiding Australians. However, I do encourage senators to consider the amendments that the coalition will put forward in the committee stage as a commonsense way to bring electoral laws into line with the Constitution without rubbishing the principles of justice that we hold dear.