Introduction and First Reading

Mr VAN HOLST PELLEKAAN ( Stuart ) ( 10:33 :38 ): Obtained leave and introduced a bill for an act to amend the Electoral Act 1985. Read a first time.

Second Reading

Mr VAN HOLST PELLEKAAN ( Stuart ) ( 10:34 :04 ): I move:

That this bill be now read a second time.

What I propose is actually fairly simple and straightforward. The essence of it is that a person who is in custody serving a sentence of imprisonment of three years or longer for an offence against the law of the commonwealth or of a state or territory is not entitled to vote at an election in South Australia. There is a bit of detail to understand about this, which I will go through for the house, but essentially it is really that simple.

In straightforward terms, if a person commits a crime so serious that he or she is imprisoned for three or more years, then one of the many rights that should be taken away is the right to vote at elections. Someone who breaks our laws so seriously surrenders the right to participate in the election of lawmakers. Prisoners in South Australia are already prevented from voting in federal elections, and it should be the same in state elections. South Australia is the only state that does not have a similar restriction, and it is time that we caught up. Very importantly, rehabilitation should be every prisoner’s highest priority, and upon completion of their sentence the right to vote would be immediately restored.

It is already the case that prisoners all over the nation, including in South Australia, are not allowed to vote in commonwealth elections if they are sentenced to three or more years in custody. In New South Wales, they have a similar rule for prisoners who are sentenced to one year or more, so obviously that is much lighter than the commonwealth elections or what I propose; in Victoria, it is if you commit a crime that leads to you being convicted and sentenced for five years or more—so that is clearly a much more serious crime.

In Queensland, they take the strictest view. In Queensland, any prisoner sentenced to any term in custody is prevented from voting for the time that they are serving that sentence. Tasmania is the same as the commonwealth and the same as I propose for South Australia: three years. The ACT has no restriction, and in the Northern Territory it is three years, just like us. Right now, South Australia and the ACT are the only state and territory that do not have any sort of rule like this, and I think it would be very appropriate to bring something like this into force in South Australia.

With regard to how long the custodial sentence should be, I have determined to propose three years for many reasons; firstly, because it is what is already in place with regard to commonwealth elections, so then it would be very straightforward and consistent. Prisoners would not then have to wonder and the Electoral Commission would not then have to wonder whether a person could vote in a federal election or a state election, or one or the other. It is also very much in the middle of what other states and territories have proposed, so it seems to be reasonably fair and consistent in that regard, but I think the consistency with the commonwealth rule is probably the most important issue.

I turn to how this would be applied in a bit more detail. Let me be very clear: of course, we all understand that if a person is convicted of a crime that leads to a custodial sentence and, let’s say, they are sentenced to five years in prison, they might be out after four. Let’s say they are sentenced to a custodial sentence of three years—so they would be caught by this bill if it was passed here and became law—we know that they could actually be out of prison after two or 2½ years; if they have done everything that has been asked of them, they are offered early release through parole.

My view is that when they go into prison, sentenced to three years or more, this would apply to them and it would apply to any state elections that might come up while they were in prison. If they happened to get out in less than three years, good luck to them, but as soon as they have finished their custodial sentence their right to vote would be reinstated to them immediately. It is about the crime they have committed and about the sentence that they are given by a court, not the sentence that they fulfil, if that makes sense, understanding that most prisoners actually get out of prison earlier than the full term.

That raises another important question that is necessary for the house to understand. A custodial sentence is not only about prison; it is usually considered that way, and it occurs in the overwhelming majority of cases. It is what we all hear most often: sentenced to prison for so many years with a nonparole period of something less, being typical.

The corrections department and the CE of Corrections has the right, towards the end of a person’s sentence, to allow that person to leave prison and go into home detention. They are still fulfilling their custodial sentence, but they would not be in prison. In that situation, this bill would still apply, if it is accepted and became law. So, the person, while they have left prison, has not yet completed their custodial sentence if they are allowed to go from prison to home detention.

We also have a bill that is before our parliament at the moment (and I need to be very careful here) with regard to the right for courts to offer home detention instead of imprisonment at the front end. I will not comment on the pros and cons of that bill, other than to say that if my bill is accepted and becomes law and the other bill passes both houses of parliament and becomes law, then a prisoner who is sentenced to a custodial sentence but who goes immediately into home detention and not into prison (because of the other home detention bill that is being debated at the moment) would be captured by this bill. I hope that makes sense.

I have taken advice from parliamentary counsel, and I appreciate the support that they have given me in trying to get this right. I will read what I hope will very clearly encapsulate what I have tried to outline in my comments leading up to this. The bill states:

(5) For the purposes of this section, a reference to a person in custody serving a sentence of imprisonment includes—

(a) a prisoner (within the meaning of the Correctional Services Act 1982); and

(b) a prisoner who is on home detention under the Correctional Services Act 1982; and

(c) a person who is detained in a training centre within the meaning of the Young Offenders Act 1993; and

I will go off on a short tangent here. You would think it would be an unusual crossover for somebody detained within the meaning of the Youth Offenders Act because you would typically think of a person under 18, and when it comes to voting in state elections that is a person over 18. Nonetheless, I accept the advice of parliamentary counsel that paragraph (c) should be there to cover all possibilities, which is the possibility that somebody over 18 might still be detained under the Young Offenders Act. To get back to the meaning of custody and, in a sense, imprisonment:

(d) a person who is subject to detention of a kind that is—

(i) imposed by or under an Act or law; and

(ii) prescribed by the regulations for the purposes of this subsection.

Hopefully, initially in some pretty straightforward words and then by subsequently reading that section of the bill, that makes it really clear to people the difference between the sentence that is imposed and how that sentence might be carried out, and what the person might end up doing over time subsequent to that sentence being imposed.

It might interest members of this house to have a small bit of information with regard to sentences that are handed down. I will provide a small amount of information from the Australian Bureau of Statistics on aggregate sentence length for the years 2005-15 in South Australia, and any member who wants more detailed information can go to the ABS. The mean, or average, years of sentence handed down in South Australia is 9½ years over the 10-year period from 2005-15.

What is probably more important with regard to this bill is that the median sentence is 3.5 years—the median being the number that actually helps you figure out how many people would be captured by this bill if it were passed. The median sentence is 3.5 years, meaning that half the sentences have been less than 3.5 years and half the sentences have been more than 3.5 years. I am sorry I cannot tell the house how many would have been exactly 3.5 years, but I am sure there were quite a lot.

What that means is that slightly less than half of the prisoner population, based on statistics of the previous 10 years, would not be captured by this bill and that slightly more of the prisoner population, based on these statistics, would be captured by this bill. I think it is important for people to have that in mind. One of the foundations for me bringing this to the parliament is that it is meant to apply only to people who have committed very serious crimes. If you are sentenced to prison for three or more years, you have committed a very serious crime. This is not the low end of the scale. These are serious criminals who have committed serious crimes. It is very much my intention that it is only those people in that category who would be captured by this bill.

There is a very important issue to consider with regard to human rights and civil liberties in relation to what I am proposing, and I do not shy away from that discussion at all. It is important that members, when considering how they choose to vote on this bill, have a little bit of history. Again, they can go and get as much as they want but, for the purpose of this contribution, back in 2007, after the federal government brought in their very similar rule on 5 March 2007, legal action in the High Court to challenge the constitutionality of that legislation and the removal of the right of sentenced prisoners to vote in elections was commenced.

The matter was heard by the Full Court of the High Court in Canberra on 12 and 13 June 2007, and the short version of what they determined was handed down on 30 August 2007. The High Court upheld the fundamental human right to vote, finding that the government had acted unlawfully and unconstitutionally in imposing a blanket ban denying prisoners the vote. However, the court upheld the validity of the law providing that prisoners serving a sentence of three years or longer are not entitled to vote.

To a layperson not legally trained, as most of us are not, that is a fairly confusing ruling, but the long and the short of it is that they supported the principle but said, nonetheless, that they would allow that law to stay in place. So, if this law were to be brought into South Australia, we should not expect it to be removed on any similar basis. I accept that members of the public, prisoners and members of parliament will have some concerns in that area, and I acknowledge that within our own opposition team there were certainly one or two people who spoke on that very important aspect. I expect that one or two of them might even contribute along those lines when they have their opportunity to speak here in parliament.

I know that on the Labor side there will be people who have concerns about what I propose on that basis, but the overwhelming majority of my colleagues support this bill. The Liberal Party supports the bill here in this place, and I ask that the government thoroughly debate every aspect of the bill and work out its position. I ask the government to support this bill. I think it makes good sense. I think it is what the people of South Australia would want for a law in our state.

Debate adjourned on motion of Hon. T.R. Kenyon.