BILL: Prisoners voting in SA elections

Today Mark opposed the Government's legislation to remove the right for South Australian prisoners to vote in state elections.

Electoral (Prisoner Voting) Amendment Bill 2018

The Greens' position on this bill is very simple: we do not support removing the right to vote from prisoners. That is what this bill does and we do not support it. This is not a position that we have come to recently. It has been a long-held Greens' policy. In fact, as I was researching this issue, I came across a 20-year-old press release from Senator Bob Brown, and it included the following:

Australia is likely to be acting counter to our obligations under the United Nations International Covenant on Civil and Political Rights 1991 Article 25(b) and the United Nations Universal Declaration on Human Rights 1948 Article 21(1) which was just re-signed by the Howard Government…

Moves 20 years ago to take away from prisoners the right to vote was identified back then as breaching these international instruments. That has not changed. Interestingly, it was a prescient of Dr Brown. I note that the Labor Party has an amendment on file. This is what Dr Bob Brown said 20 years ago:

The ALP have not gone far enough in their recommendations. The Greens propose ensuring all prisoners have the right to vote.

Having said that, the Greens will absolutely be supporting the Labor amendment. We did hear some disturbing news yesterday that perhaps negotiations are still underway, but I am hoping that Labor do hold their ground because removing the right to vote only from life-term prisoners is certainly far better than the government's proposal, which will remove the right to vote from many, many more prisoners.

It is not just the Greens' position. If you look at the Australian Human Rights Commission, they have looked into this issue over the years. I think their most recent report was from 2010 and it addresses precisely the issue that is before us in relation to prisoners who are serving sentences of three years or more not being able to vote even if they are on the electoral roll. The Human Rights Commission back then pointed out that nearly 10,000 people were disqualified from voting in federal elections under that federal law. The Human Rights Commission states:

Some argue that it may be reasonable to punish prisoners who have committed serious crimes by depriving them of the right to vote. However, the Australian Human Rights Commission believes that enfranchisement is a powerful and positive tool to assist with social reintegration and rehabilitation of prisoners…Giving prisoners the right to vote would be consistent with Australia’s obligation to ensure that:

And it goes on to quote the International Covenant on Civil and Political Rights. The quote is:

The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.

That is the object of the prison system according to international law: reformation and social rehabilitation. The question that we have to ask ourselves is: how does disenfranchising prisoners achieve either of those ends? The short answer is that it does not. Again, the Human Rights Commission goes on to say:

The Australian Human Rights Commission believes that denying prisoners of the right to vote, just because they have been sentenced to imprisonment for 3 or more years does not satisfy the ‘reasonableness’ test at international law. This approach is consistent with judicial decisions in Canada and the United Kingdom.

I have been around long enough to understand that the way the politics of this thing works is that, whenever it is suggested that prisoners should be able to vote, opponents of that position will identify the worst of the worst and say, 'What about them?' The usual examples that are trotted out are Martin Bryant, the perpetrator of the Port Arthur massacre, or perhaps in South Australia Bevan Spencer von Einem, convicted sex offender and murderer, usually gets raised. They are pretty hard to reconcile but, in my view, a better way forward would be to leave the matter to a separate judicial process to decide whether voting should be removed, and the clearest cases are those prisoners who are never going to be released.

I cannot see Martin Bryant in Tasmania ever being released. I am more than happy for him not to vote. However, as a general rule, we are going to see these people back in the community. Unless we lock people up until they die, which we do not do very often, they are coming back to us, and I would like them to come back to us with some shred of connection to the world and the community that has incarcerated them. We have not written them off completely.

As I have said, this is the position that Dr Bob Brown took 20 years ago back in 1998. It is the position that my Greens' colleagues have taken in other states, such as Tasmania, where the Greens went to the last state election with a policy allowing prisoners to vote whilst also giving judges the discretion to withdraw that right in the most serious or heinous cases. I think that is a better approach: leaving it to the judiciary to decide whether some element of punishment includes taking away the right to vote. I think that is a sensible compromise and it would deal with the hardest cases.

I draw attention briefly to one—I think the word is probably 'irony' in this. Under clause 6 of the bill, a reference to a person in custody does not include a person detained under part 8A of the Criminal Law Consolidation Act. That part relates to mental impairment and it deals with people who are determined to be incapable of being found guilty of an offence.

They can still vote. So the person who is mentally unable to know the difference between right and wrong can vote, but the person who well knew the difference, or should have known the difference between right and wrong and has been convicted, cannot. What we are trying to reconcile here is the quality of a vote that might be cast with the right of the person to cast that vote, and I can see that that is a dilemma.

I point out generally that a question for the minister to answer when we get into committee is whether the minister can explain why persons who have been found incapable of determining right from wrong and therefore cannot be found guilty of a criminal offence are able to vote, but those with full mental capacities who are in a regular gaol are not allowed to. I want to point out at this point that, whilst I have raised that irony in terms of mental capacity, I want to make it clear that I am not advocating that we should remove the right to vote from forensic prisoners; I am not making that point at all.

In fact, I have been enlightened by the submission of John Brayley, South Australian public advocate in 2015, who made a submission to the Senate Community Affairs Legislation Committee regarding the Social Services Legislation Amendment Bill 2015. He addressed exactly that point. He said the following:

Denunciation and the stripping away of rights is part of the process of removing the full status of people who are convicted of a crime and sent to prison.

He was not justifying that position, he was just explaining what it was. He went on:

The same process of denunciation and rights removal should not be applied to a patient who is hospitalised having been found not guilty by reason of mental impairment, who retains their civic status; the most immediate manifestations of this are the right to vote, and to receive Social Security payments. It is not uncommon for patients who recover and regain insight into events, to experience remorse and distress at their actions when unwell. It is neither relevant nor appropriate to diminish the status of people caught in these tragic situations further.

The position that the Greens will be taking is one that we have taken many times before: our first preference is the status quo to enable prisoners to vote; our second preference is to support an opposition amendment that only takes the right to vote away from prisoners serving life sentences. I am hoping, despite these discussions that are apparently underway, that Labor does not weaken that position further, but we certainly reserve the right to vote against the entire bill at the third reading as well.


27 November 2018 -  the Bill was passed with amendments in the Legislative Council and was sent back to the House of Assembly for consideration. 

4 December 2018 - the House of Assembly disagreed with the amendments passed by the Legislative Council and sent the Bill back to the Legislative Council requesting that they not insist on the amendments.

6 December 2018 - the Legislative Council resolved to insist on its amendments, so the House of Assembly requested that a Deadlock Conference be established, which was granted.

The Deadlock Conference met a number of times but was unable to resolve the deadlock. 

27 February 2019 - the Bill was again returned to the Legislative Council and the Treasurer moved a motion that the Legislative Council do not further insist on its amendment.

The Greens opposed the motion. The following is a transcript of Mark's contribution to the debate.

The choice the Treasurer is effectively putting to us is that we need to do one of two things: one is that we need to add to the punishment already meted out by the courts to those serving terms of imprisonment; we need to add to their punishment so that their abandonment by society is complete for the term of their incarceration.

The other side, the flip side of the coin, is that regardless of the crimes that people have committed—the seriousness of those crimes—we do leave the door a little ajar to their eventual rehabilitation back into society. We are talking about people, unless they die in gaol, all of whom, every one of them, is coming back into society. When it comes, as the honourable Leader of the Opposition has been saying, to whether we are safer or not, I for one would feel safer about people coming back into society who have been rehabilitated, reformed and are able to re-enter society. Adding to their punishment by effectively denying all interaction with the electoral process I do not think adds to our safety.

I think it is all very well and good for the Treasurer to reel off a list of heinous crimes—abhorrent crimes, things that he has got no argument with anyone in this room that they are not serious crimes that are not deserving of punishment; but he is somehow suggesting that unless we toe the government's line we are not being serious enough, we are not punishing these people enough, because we have not yet stripped them of all their civic rights.

The Treasurer made a comment which—I can't speak for other parties—somehow suggested that unless people are on the government side we are somehow courting the paedophile vote. I for one have never stood outside a gaol on election day with how-to-vote cards. It probably would be pretty slow traffic unless they let the prisoners out to take the card. I am not aware of any parties that are actively courting the prisoner vote. So I think to try to paint it as some sort of a partisan exercise—that prisoners are more inclined to vote for one area of politics rather than the other—is just a silly argument.

The Greens position always was that we did not support this bill at all: we did not support any part of it. But when the Labor opposition came and said, 'Look, we are prepared to strip voting rights from people serving life terms,' we accepted that, and I think that should still be the position that the Legislative Council retains.

Following the contribution of other MPs, the Legislative Council voted then divided on the motion: 

Ayes 9
Noes 12
Majority 3

Darley, J.A.
Dawkins, J.S.L.
Hood, D.G.E.
Lee, J.S.
Lensink, J.M.A.
Lucas, R.I. (teller)
Ridgway, D.W.
Stephens, T.J.
Wade, S.G.

Bonaros, C.
Bourke, E.S.
Franks, T.A.
Hanson, J.E.
Hunter, I.K.
Maher, K.J. (teller)
Ngo, T.T.
Pangallo, F.
Parnell, M.C.
Pnevmatikos, I.
Scriven, C.M.
Wortley, R.P.

The motion did not pass and the bill was laid aside.