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Legislative Council - Fifty-Fourth Parliament, First Session (54-1)
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Bills

Electoral (Prisoner Voting) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 13 November 2018.)

The Hon. K.J. MAHER (Leader of the Opposition) (15:34): I rise today to indicate that Labor has, some time ago, filed an amendment to this bill, and we will obviously be prosecuting that amendment and supporting the amended bill. The intent of the bill, as it stands, is to prevent prisoners who have committed a serious offence and are serving a sentence of three years or more from voting at South Australian elections.

According to the Electoral Commissioner's website, it is currently compulsory for South Australian prisoners to vote in state elections and keep their enrolments up to date. As outlined in the Electoral Commission's prisoner enrolment form, for South Australian elections prisoners must enrol at the address that was their principal place of residence immediately before the commencement of their imprisonment or the address of a new place of residence acquired during their imprisonment by them or a parent, spouse, domestic partner or child who they resided with immediately before the commencement of their imprisonment and at which they intend to reside on release from prison, or, if the two options above do not apply and the prisoner has been in prison for more than two years, the address at which the person is imprisoned.

A similar bill to the one we are facing in the chamber today was introduced, I believe, by the member for Stuart in 2016. At that time, the then member for Colton, the Hon. Paul Caica, pointed out:

…in 1976, the South Australian parliament passed legislation with bipartisan support, I might add, to remove the restrictions on prisoner voting that were in the South Australian Constitution Act 1934. There seems to be no strong policy rationale for shifting from the bipartisan position adopted back then. Introducing restrictions on prisoner voting rights does not correspond with other policy priorities of the Attorney-General's Department which focus on restoring and rebuilding community connections.

They were points well made then and much of that still applies. In their submission on this bill, the Law Society has made similar points. I think there is value in putting on the record some of the comments from the Law Society. They refer to rehabilitation. I will quote from the Law Society's submission:

In 2006, the Federal Government passed an amendment bill that revoked the right to vote for any person serving a sentence of imprisonment at a federal election. However, in 2007 the High Court in Roach v Electoral Commissioner [2007] HCA 43 found the law was unconstitutional.

The submission from the Law Society goes on to note some comments from justices Gummow and Kirby. The Law Society goes on to note that disqualifying a person from voting while serving a sentence of imprisonment may lead to them not holding a proper respect for elected government. It does not promote rehabilitation or their full participation in society on release. The Law Society notes that they question whether a prisoner already punished under the law should have to incur the additional penalty of the loss of the right to vote. Such restrictions amount to additional punishment that does not contribute towards a prisoner's rehabilitation or reintegration into society.

The Law Society goes on to consider various human rights considerations. I know many honourable members have the benefit of the Law Society's views in relation to that, so I will not talk at length about those. One further point the Law Society makes is that removing someone's right to vote for serving a sentence of imprisonment as low as the ones that are being suggested in this bill has no evidence to back it in terms of a deterrent effect to committing a crime. There is no evidence to suggest that someone serving three years or more for a crime would be deterred from committing that crime if they knew that they were going to have their ability to vote removed.

The opposition has lodged an amendment to this bill that in effect limits the operation of this not to those serving three years or more but to prisoners who are serving life sentences. We feel that is a much more sensible limitation than punishing every prisoner who is in prison serving a sentence of three years or more. It confines the punishment to those who are serving life sentences who are, of course, much less likely to be released in the time frames of those serving sentences of much shorter duration, for whom rehabilitation and reintegration into the community is an important part of not reoffending and reducing recidivism. With that, I commend the Labor amendment to this bill to the chamber and look forward to the committee stage.

The Hon. J.A. DARLEY (15:39): I rise to speak on the Electoral (Prisoner Voting) Amendment Bill. Under this bill, a person who is serving a sentence of three years or more will be ineligible to vote. The bill will also capture high-risk offenders and those who are unwilling or unable to control their sexual instincts. It will mirror federal legislation and other states where prisoners are excluded from voting. However, the sentencing periods vary from state to state. South Australia is currently the only state which does not impose restrictions on prisoners voting, with the ACT being the only other jurisdiction in Australia which does not have similar provisions.

I note that the Law Society has objected to the bill, including those serving home detention, and that, federally, those serving a home detention sentence longer than the stipulated period are not excluded from voting. The government has addressed this in their second reading and explained that home detention is a form of incarceration and that if the justification for the bill is accepted, serious offenders who break the law should not be able to decide who makes the laws, and home detention should be included. I understand that there was some concern that the bill would mean that people would need to re-enrol once they are eligible in order to go back onto the roll. However, I understand a person's right to vote is reinstated automatically once they are eligible.

One matter that I raised at my briefing on this bill was the manner in which voting is conducted in prisons. To me, it makes sense that voting would be undertaken by way of utilising postal votes rather than focusing resources into having to have the votes done in person. The briefing was held by the Attorney-General's office, rather than the Electoral Commission, so no answer was forthcoming. However, I am sure there are reasons why postal votes are not used. If it could be done, it would be worthwhile for the government to consider this as a means of streamlining voting in prisons.

The Hon. C. BONAROS (15:41): I rise to speak on the Electoral (Prisoner Voting) Amendment Bill 2018. The current position in South Australia, as we know, is that all prisoners can vote in South Australian state elections. What the bill seeks to do is to disqualify a person who is in custody at the close of rolls and is serving a sentence of imprisonment of three years or more, including a sentence which is ordered to be served on home detention, from voting at a South Australian state election. At the conclusion of a prisoner's sentence, or home detainee's sentence, they would be able to vote again under this bill.

A number of other jurisdictions, including the commonwealth, already have varying restrictions on prisoner voting, and it is true that the passage of this bill would bring South Australia in line with those jurisdictions to an extent. However, it is important to note that the right to vote underpins our democracy. A healthy democracy is one that protects all members of the community having equal access to the political process. The justification proffered by the government for the bill is the approximate alignment with the commonwealth legislation. However, as we know, this bill departs from the commonwealth legislation to include those serving a sentence of home detention of three years or more.

Curiously, the government has stated that the purpose of the bill is to remove the incongruity of being out of step with the commonwealth legislation whereby a prisoner in South Australia serving a three-year or greater sentence can vote in South Australian elections but cannot vote in federal elections. However, by departing from the commonwealth legislation to extend the prohibition on voting to those serving sentences of three years or more on home detention similarly creates an anomaly whereby those serving three years or more on home detention will not be able to vote in South Australian elections but will be able to vote in federal elections.

I am certainly keen to hear from the Treasurer during the committee stage of the bill as to why, in an effort to solve one anomaly, the government has created another with this bill. Taking part in voting is fundamental to civic and community engagement. An increased voter turnout in the United States earlier this month may well have played a significant part in the outcome of the midterm elections. Approximately 114 million votes were cast this year, well above the 83 million votes cast in 2014 and the 91 million ballots cast in 2010. At the same time, voters in Florida approved amendment No. 4 which restored voting rights to 1.5 million felons who previously had to wait at least five years after completing their sentence before they could file a request with the Governor and cabinet. Progress!

The Law Society has provided a submission in relation to the bill, and I thank president Tim Mellor for doing so. That submission touches on the issue of prohibition from voting for those serving a sentence of home detention of three years or more and makes the following salient point, and I quote:

It is relevant to consider the underlying objectives of home detention, which are to promote rehabilitation and prevent exposure to the environment of a correctional institution by allowing the person to maintain ties to the community, enhance opportunities for treatment and counselling, and to reintegrate into society at an earlier stage in their sentence…

I am certainly keen to hear from the government and the Treasurer again as to why the government does not think the proposed amendment to include prisoners serving a sentence of imprisonment does not run contrary to the home detention scheme.

In addition, the Law Society has raised a number of concerns about the disproportionate effect the measures in the bill will have on Indigenous South Australians, who are clearly over-represented in our criminal justice system. It is a sad indictment on the state that we have the ignominy of having the third highest rate of Aboriginal incarceration in Australia. For the record, and certainly from a personal point of view, it is the over-representation of our Indigenous community in the criminal justice system in the context of this bill that I am most concerned about.

In 2017, Aboriginal and Torres Strait Islanders comprised 23 per cent of the adult prisoner population, just under one-quarter of all prisoners. This is despite only comprising, as we know, approximately 2 per cent of the Australian adult population. I am also keen to hear from the government what consultation they undertook in relation to the bill and what consideration was made by the government of the impact the measures in the bill would have on the Aboriginal and Torres Strait Islander peoples.

The Law Society has also raised a number of human rights implications of the bill and has asked that the government consider and address those concerns in the committee stage of the bill, which I think is only fair. It is clear that the bill as drafted raises a number of concerns which the government must address. I think it is also very important to address the perception of voting as a sense of entitlement. Voting is not a luxury, and I do not think it is helpful to explain it in that context in this bill or otherwise. It is a right, a right that millions of people around the world have died trying to attain, a right that we in this country should be particularly grateful for. If that right is to be removed, then it should be done in instances involving the most heinous types of offending and limited to that most heinous type of offending.

I absolutely support the notion that some individuals deserve to be locked away and forgotten about, as harsh as that may seem, because their offending is so reprehensible and they are beyond rehabilitation. However, the vast majority of individuals in gaols do not fall into that basket. Most individuals will, in a relatively short period of time, be released back into the community and be expected to comply with the laws of our state and commonwealth, including these laws that require them to exercise their right to vote.

Removing a person's right to vote does not assist with that process. By disenfranchising those people, I am concerned that we are doing little more than setting them up for further failure. Most of us would agree that our community expects that a term of imprisonment should serve at least four purposes, and these are four that I just picked off the top of my head when I was considering this issue. First and foremost, it should serve to protect the community; secondly, it should act as a punishment; thirdly, it should act as a deterrent; and, finally and importantly, it should afford an opportunity for rehabilitation. It is perhaps this last purpose with which we struggle the most.

I accept that you can lead a horse to water but you cannot make it drink—in a lot of cases. What I struggle with, however, is the complete lack of emphasis we place on the need for adequate rehabilitation, especially when it comes to issues such as drug addiction. It is often the system that is to blame for the lack of appropriate rehabilitation services rather than anything else. I have to question how further marginalising individuals is conducive to their effective rehabilitation.

I think it is fair to say, from SA-Best's point of view, that it has been difficult to come to a middle ground that is perhaps more suitable than what has been proposed by the opposition. We know the opposition has filed amendments to the bill which would seek to restrict the prohibition on voting rights for prisoners to those serving life sentences. Given the issues I have highlighted in my speech and the issues that have been raised by organisations, including the Law Society, I certainly see merit in those amendments and look forward to hearing more from the opposition with respect to those amendments during the committee stage of the debate. With those words, I support the second reading of the bill on behalf of SA-Best.

The Hon. I. PNEVMATIKOS (15:50): Today, I rise to speak on the Electoral (Prisoner Voting) Amendment Bill 2018, which seeks to amend the Electoral Act 1985. The United Nations Standard Minimum Rules for the Treatment of Prisoners, also known as the Nelson Mandela Rules—and I am not going to go through all the rules, but just a snippet—state that, 'The treatment of prisoners should emphasize not their exclusion from the community, but their continuing part in it.' That is from rule 88.

As part of their tough on crime approach, the government's electoral amendment bill wishes to reinforce this by disallowing a person serving three or more years, including those on home detention and youth in training centres, from being able to vote in state elections. Even on a superficial level, as a state that currently does not restrict voting rights of prisoners or persons in custody, it is evident that this bill runs contrary to the UN Minimum Rules for the Treatment of Prisoners.

Sadly, the real implications lie much deeper. The penitentiary system is in place for a number of reasons but also in order to aid reformation and social rehabilitation. Denying a prisoner the right to vote diminishes any social and community responsibility they have as citizens. Further, the exclusion will be an additional penalty that will apply and will be an unintended effect of the sentencing court at the time of sentencing.

We know that in our penitentiary system Indigenous Australians are already disproportionately represented. Whilst they account for 2 per cent of our population in this state, they represent almost 25 per cent of our prison population. It is important that we recognise our Aboriginal and Torres Strait Islanders and highly value their rich history and their role and contribution in our communities and our country. Removing further rights will only act to alienate people and lead to establishing a system of tiers and classes of people when it comes to citizenship. In this situation prisoners would not have a role or say in our society and would be perceived as being outside of our society.

Our prison population numbers are rising. If our system of punishment and gaol is also to play a rehabilitative and reforming role, what benefit will be achieved by removing people's rights to vote? The right to have a say and a vote is an inalienable right of each and every citizen in our society. Denying prisoners the right to vote by introducing this bill can only be under consideration for political pointscoring or because prisoners are somehow perceived as less than human and therefore without a voice or rights. Their internment in gaol is penalty enough for their misdeeds as citizens. Let us not take away their dignity and our humanity also.

If there is to be any denial of citizenship rights, it should only apply to those who have committed the most serious of crimes, which, for example, can be identified based on the degree of their sentence. Prisoners who fall under that category have clearly displayed that they have chosen to opt out of our society and our community.

I remind the council that currently prisoners do not fit the eligible criteria to be able to cast their vote via the post despite clearly being unable to attend a polling booth. There is no appropriation plan for prisoners to invoke their right to vote. It is almost impossible for a prisoner to cast their vote. This bill is not a disincentive for someone to create a crime; rather it facilitates a choice for people to opt out from participating in society. By denying the right to be a part of the community you are stating that the rules will no longer apply.

What does the government hope to achieve other than a potential headline in the daily news cycle? I would like to remind the council that the purpose of a youth centre is to focus on the education and rehabilitation of young men and women aged between 10 and 18 who are on remand and detention warrants. Home detention is a measure which provides an increased opportunity to successfully rehabilitate an offender into the law-abiding community.

Serious consideration needs to be given regarding the impression this bill will portray, especially to those who are in home detention and the youth who are in training centres. As I have stated previously, it is important that all citizens, irrespective of where they may be housed, are recognised members of our society and are afforded their rights as citizens under our legal system and in accordance with international human rights law.

This bill requires all perspectives and issues to be regarded when debating in this chamber. Under no circumstances should we be creating further divisions in society and preventing individuals from participating in our society and community to the fullest. To be selective about which groups of people are and are not supported to vote strikes at the very core of what so many before us have strived tirelessly to change. It is a basic democratic right which we all value in our society. We must carefully consider the harm that can arise from suppressing the voice of over 3,000 South Australians by removing their right to vote. I strongly encourage the council to consider the amendments that we may propose.

The Hon. R.I. LUCAS (Treasurer) (15:56): I thank honourable members for their contribution on this debate. The Electoral (Prisoner Voting) Amendment Bill was an election commitment from the government to ensure that those people who have committed a crime and been sentenced to more than three years in prison are not eligible to vote in state elections. This is not a new policy. The South Australian model proposed here today specifically mirrors that of the commonwealth. I note amendments have been filed by the opposition to limit the group of people who may not vote to those people only serving life sentences. This is a significant shift from what is proposed by the government bill.

In terms of the impact of the bill, the government bill will impact on about 1,400 people, or 45 per cent of the prisoner population. The opposition amendments, if passed, would mean that the bill would only impact on the voting rights of 196 people, or 6 per cent of the total prisoner population, so this is a significant change from what is proposed in the bill. Clearly, the government will not be supporting the opposition amendments.

One of the matters raised in the debate on the bill relates to the fact that the bill will not apply to a person who is detained under part 8A of the Criminal Law Consolidation Act. A person may be detained under part 8A where they are mentally unfit to stand trial or have been found to have been mentally incompetent to commit the relevant offence. The Hon. Mr Parnell noted that the bill will mean that 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.

That may indeed be the outcome. It results from the policy position that this bill is about restricting the voting rights of people who have been found guilty of a criminal offence or offences and sentenced to a term of imprisonment greater than three years. The government wanted to be very clear that the bill does not apply to a person who has not been found guilty of a criminal offence. Whether or not, at a particular election or generally, that person is capable of voting is a different question. There are provisions elsewhere in the Electoral Act that relate to people who are of unsound mind.

The government stands by its position that the bill applies to people who have been found guilty of criminal conduct and sentenced to imprisonment for three years or more. This does not include people who are unfit to stand trial or who have been found to be mentally incompetent to commit the relevant offence. Again, I thank members for their contributions to the second reading of the bill.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. C. BONAROS: During the second reading debate, I raised a couple of points in relation to the inconsistency that this bill was trying to address and the anomaly that was created. Can the Treasurer provide some explanation as to how we have come to this position where we have now created a further anomaly in trying to address the first one that the government says needs to be resolved to bring this in line with commonwealth legislation? This is in relation to the home detention issue.

The Hon. R.I. LUCAS: My advice is that the Hon. Ms Bonaros has accurately reflected the government's position. We have reflected the policy position in relation to the three-year provision of the commonwealth, but the Hon. Ms Bonaros is correct to say that the government's policy decision in relation to home detention is different to the position of the commonwealth. The consistency with the commonwealth essentially refers to the three-year provision. As the Hon. Ms Bonaros has identified, the state government has adopted a different policy position in relation to the application to home detention. The state government's position in this legislation reflects the fact that, if you are under home detention, the legislation will apply to you. That is different, I am advised, to the commonwealth.

The Hon. C. BONAROS: So you confirm then that, in those instances, we will not be able to vote in South Australia but we will be able to vote in federal elections. So that is the inconsistency that we have in fact created.

The Hon. R.I. LUCAS: I think the honourable member has answered her own question, that is, there is a difference and it will be as outlined by the honourable member.

The Hon. M.C. PARNELL: I will raise one issue at clause 1. I do not think I raised this in my second reading contribution. It relates to a report that came out a couple of years ago that was reported on the ABC news site. The issue was the great lengths the Electoral Commission went to in making sure that prisoners were enrolled and able to vote, and the flip side of that story was the great lengths that Corrections went to in making sure that so few of them did. It seems that very few prisoners voted.

Is the minister aware of any particular attitude of the South Australian Electoral Commission and the South Australian department of corrections in relation to prisoner voting? To date, has Corrections facilitated the ability for prisoners to vote? Another supplementary is: does the minister have any statistics on how many prisoners, as a percentage, have actually voted at previous elections? He may have given that already, but I do not recall.

The Hon. R.I. LUCAS: I am not aware whether it was put on the record in the Legislative Council debate, but it was evidentially raised in the House of Assembly debate and I am happy to share the information we have. There are mobile voting booths that apply to prisoner facilities. At the last state election, 41 people voted at the Adelaide Women's Prison, and 199 voted in that bastion of democracy, Mount Gambier Prison, which is run by the private sector—maybe they have a more encouraging view of encouraging people to vote.

In Mobilong Prison, there were 83 voters; Cadel, 80; Port Lincoln Prison, 93; and Adelaide Pre-Release Centre, 22. In total, 518—so around 500. To the obvious question: what about Yatala? Yatala is high security, so evidently postal voting was used. There were 141 postal vote applications received but only 14 were accepted by the Electoral Commission. Only 40 were returned, so the rejection rate was not as high as it might appear. Whilst 141 applications were evidentially received, only 40 were returned; of those, 26 were rejected and 14 were accepted. So it is a relatively small percentage.

In relation to the attitudes of correctional officers, I obviously cannot give the honourable member an answer to that. I am sure there would not be a policy approved by the correctional services department and endorsed by management that says, 'Thou shalt go out and discourage people from voting.' However, I cannot put anything on the public record in relation to the individual attitudes of some correctional services officers.

The Hon. M.C. PARNELL: I thank the minister for his answer; I had not seen the statistics from the lower house. I raise this because of a freedom of information application that the ABC was part of in 2017. It showed that, in New South Wales, 10,600 electoral enrolment packs were provided to prisoners to complete their postal votes ahead of the 2013 election. Apparently, the rate of return was 1 per cent. Questions obviously arise from that.

Obviously, there are issues of illiteracy; that is part of it. There is the issue of people who feel disempowered and believe their vote does not count. It explains a lot, but I do not know whether it explains that 99 per cent. The clear imputation in this article was that in New South Wales—I should emphasise that it was not in South Australia—Corrections are going out of their way to make sure that prisoners do not exercise their right to vote.

I just make the observation that, depending on the final form that this bill takes—if, for example, the opposition's amendment gets up and only lifers are precluded from voting, it would be disappointing to see participation rates drop further, given the relatively small number of those people. But I do thank the minister for his earlier answer.

The Hon. C. BONAROS: In relation to those statistics, in recent years we have seen the Electoral Commission at a state level pursue those people who do not vote, in terms of penalties, more vigorously than they have in the past.

The Hon. R.I. Lucas: Put them in gaol.

The Hon. C. BONAROS: That might be a bit heavy-handed. Do we have any statistics on the number of fines issued to those prisoners who failed to vote?

The Hon. R.I. LUCAS: No, we do not. That question might be addressed to the Electoral Commissioner at some stage. I suspect the answer is probably zero or none, but I do not know. If the fine is automatically generated, it might be the case, but the honest answer is that we do not have any information on it.

The Hon. C. BONAROS: In relation to the over-representation that a number of members have now addressed in relation to Aboriginal and Torres Strait Islander people who are in prison, did the government consult at all with any relevant stakeholder groups in relation to that particular cohort of people serving terms of imprisonment and, if so, can the Treasurer identify who those stakeholders were?

The Hon. R.I. LUCAS: Because this bill was based on a policy commitment given by the government at the election, it was processed on the basis of its being an election commitment and needing to be delivered (I do not think it was one of the 100-day commitments, but an election commitment the government took to the election to be implemented). The formal consultation was only with the Electoral Commission and the Department for Correctional Services. My advice is that there was no formal consultation with groups that represent Aboriginal prisoners or Aboriginal communities generally.

The Hon. C. BONAROS: I appreciate that it is not a high proportion of the population that we are talking about, but were the costs associated with prisoner voting taken into account in formulating this policy position?

The Hon. R.I. LUCAS: No, the policy was essentially a matter of principle; it was adopted by the then opposition, the Liberal Party in opposition. It was a policy position that was adopted. There may have been some discussion in broad terms, but the opposition was not in a position to do a detailed business case analysis of what the costs might or might not have been with the various options. It was essentially a policy position discussed in opposition, which we took as an election commitment and we are now implementing in government.

The Hon. C. BONAROS: In relation to the issues of rehabilitation that have been raised—I know I have raised them, and other members have raised the same concerns, and certainly the Law Society has raised concerns around rehabilitation goals, and also the International Covenant on Civil and Political Rights and how that fits with what the government is proposing in the context of rehabilitation—can the Treasurer provide the position of the government in relation to how this fits with our responsibilities in terms of rehabilitation of people in prison?

The Hon. R.I. LUCAS: The government's advice on this in response to a similar question, 'Is this bill inconsistent with human rights?', which is sort of pretty close to the question that the member is asking—the government's position regarding these concerns raised by the Law Society is that in Roach v Electoral Commissioner [2007] HCA 43 the High Court held that the commonwealth legislation that disqualified prisoners serving a sentence of three years or more was valid. So the issue has been tested and the High Court has held that the commonwealth legislation, upon which our legislation is based, was valid.

The parliament has the power to make laws about elections, who can enrol, who can vote and how that happens. In other jurisdictions, other than the Australian Capital Territory, there are restrictions on prisoner voting. South Australia will now have similar restrictions. The government takes the position that where offending is so serious or so protracted that the person is imprisoned for three years or more, they should not be eligible to vote.

The Hon. M.C. PARNELL: I cannot help myself, Mr Chairman. I make the obvious point: the High Court was not assessing the law against international human rights instruments, they were assessing it against Australian law. So just to make the point that, as we know, international instruments do not become something that an Australian court will take into account until they have been enacted in domestic legislation, and we have not enacted most of our human rights obligations. I am just making that observation.

Clause passed.

Clauses 2 to 5 passed.

Clause 6.

The Hon. K.J. MAHER: I move:

Amendment No 1 [Maher–1]—

Page 3, lines 11 to 41 [clause 6(2), inserted subsection (5)]—

Delete subsection (5) and substitute:

(5) For the purposes of this section, a person is a designated person if the person is in custody serving 1 or more sentences of life imprisonment for 1 or more offences against a law of this State, the Commonwealth or another State or Territory.

As has been characterised by other contributions, this has the effect of limiting the operation of the bill to lifers; that is, prisoners serving a life sentence rather than those imprisoned for three years or more. We do this for a number of reasons, which have been well canvassed in second reading contributions. I will very briefly summarise why we think this is appropriate. Firstly, the bill purports to fix an anomaly to bring us into line with commonwealth legislation. In doing so, it creates further anomalies in relation to how it works in its application to home detention. It does not fix anomalies in the sense that it creates even more anomalies, so that is not a particular justification for this.

Secondly, I note that the Treasurer's contribution did not talk about good policy, did not talk about improved outcomes, did not talk about evidence that it will produce a better or safer community, but talked about the rationale for the introduction of this bill as an election commitment. We do not think that is a particularly good rationale per se. If there were evidence that it would produce a better or safer community that would be a different case but, in fact, some of the submissions that have been made on this bill are to the contrary. I will not go through it again but the Law Society does make points about how this could impact on rehabilitation, which may have the opposite effect of a better or safer community. For those reasons, I commend the opposition amendment to the chamber.

The Hon. C. BONAROS: SA-Best is inclined to support the opposition's amendment and we do so because of the reasons that have been canvassed, particularly in relation to the anomaly that we have created but also in relation to the issue of rehabilitation and what purpose this will be serving in terms of disqualifying a person from voting while they are serving a sentence of imprisonment that is not a substantial sentence.

During my second reading contribution, I made the point that we think there are people who ought to be locked up and the key thrown away because their actions have been reprehensible and they are beyond rehabilitation. But that is certainly not the case for the vast majority of people who are in prison, and the vast majority of people who are in prison could benefit from appropriate and effective rehabilitation programs, which we know are very lacking in our criminal justice system. That remains one of our key concerns.

I would like to note, given the Treasurer pointed to the decision of Roach v Electoral Commissioner, the findings of justices Gummow, Kirby and Crennan, which were highlighted in the Law Society's submission. Those comments are that:

Prisoners who are citizens and members of the Australian community remain so. Their interest in, and duty to, their society and its governance survives incarceration. Indeed, upon one view, the Constitution envisages their ongoing obligations to the body politic to which, in due course, the overwhelming majority of them will be returned following completion of their sentence.

I think that is the key point here, that most of the people we are talking about will have to return to their communities once their sentence is served, and we are not doing anything to assist that process. If anything, we are hindering that process by marginalising and disenfranchising those individuals further, and unnecessarily so.

This is not a decision we have come to lightly. It is one that we have debated within our own party at length. We have had lots of deliberations over this for some time now, but on balance I think there is merit in supporting the position of the opposition in relation to this. If there were a further middle ground that could have been explored, we certainly would have done so, but we could not land on a more suitable middle ground. On balance, we do believe that the opposition's position strikes an appropriate balance, and as such we will be supporting that amendment.

The Hon. R.I. LUCAS: As I indicated in the close to the second reading, the government opposes this amendment and will be opposing it very strongly. If we lose it on the voices, I indicate to members that we will be dividing because we see this as a fundamental difference between the government and the former Labor government, the now opposition.

Put simply, what the Labor Party is asking this parliament to accept is that paedophiles, rapists, drug traffickers, arsonists and a whole variety of other very serious offenders should be entitled to keep their vote. I am stunned that the Hon. Mr Pangallo—and he has not spoken yet—would support a position that would allow paedophiles, drug traffickers, sex offenders, rapists, arsonists, robbers, people committing very serious offences like that, to have the right to vote. That is what the Labor Party is asking this parliament to support.

Can I say on behalf of the government that we trenchantly oppose this particular amendment from the Labor Party. It is symptomatic of everything that was wrong with the former Labor government and the Labor Party. It is a stark difference between the attitude struck by the former government over 16 years and the new government that was elected on a new platform where we made it quite clear. This was not a policy that was hidden away; this was a policy that was quite clearly enunciated prior to the election. We made it quite clear prior to the election, and this bill seeks to implement that particular policy.

I indicate to members that we strongly oppose this. We will publicly campaign against it, and if we lose it on the voices, we will be dividing, so that everybody's vote will be there, self-evident to everybody, as to whether or not they take the view that paedophiles, rapists, drug traffickers, child pornographers, robbers, arsonists and the like should be entitled to continue to vote in South Australia.

This government takes a different view. The former government, the now opposition, sticks to the position they have adopted for 16 years. I urge members of the crossbench to think again in relation to their indication as to whether they are prepared to support the position the Labor Party is asking the parliament to adopt.

The Hon. M.C. PARNELL: I agree with the Treasurer that this amendment undoes the intent of the government's bill, and the Greens say, 'Thank goodness', because the government's bill was unacceptable. We are supporting the opposition amendment because it makes a bad bill more acceptable. We reserve the right to vote against the entire package, even if it looks as if the bill will pass in a much better form than it was before.

The Leader of the Opposition pointed out that none of the government's rationale was based in keeping the community safe, based in rehabilitation or based in any of the recognised purposes of our incarceration system. It is purely to add a further level of punishment, but the primary rationale, as the leader pointed out, was that it was a promise. Well, the Greens are all for holding the government to their good promises, but we are happy to let you off the hook when it comes to the bad ones. We are happy for you not even to move them, not even to bring them to parliament. We are happy to say that they misspoke before the election. We would not have criticised you for not bringing this one to us. You have brought it to us. We are going to vote it down.

I think the Leader of the Government is making a cheap political point when he emphasises the range of things that people have done that see them end up in gaol. It is almost as if by supporting the opposition's amendment we are somehow supporting paedophiles and rapists and arsonists; we are making their life easier, we are rewarding them by keeping some of their rights intact. As we know, the reality is that people who have done things, who are being punished for them, are incarcerated and removed from society. Society is protected from their influence. But unless they die in gaol, they are coming back to us.

Do we want them to come back to us better or do we want them to come back to us worse? Do we want them to come back to us with some semblance of connection with the world that has locked them up for five, 10, 20 years, or whatever it is? I say we want them to come back in some shape that they have every chance of rehabilitating. Keeping that however slim cord or thin bit of cotton between them and society by being able to vote, I think, is an important symbolic statement that we as the community make to these prisoners to say, 'You are in gaol. You have done something very bad but you are eventually going to come out and we want you to come out better than you went in.' I think that is really at the heart of this.

The opposition's amendment, by limiting the application of this bill to those serving a life sentence, as the Treasurer said, will—and I cannot remember the exact number but it is a fraction of those who would have been affected otherwise. We also have to remember, though, and whilst the Greens are going to be supporting this amendment, whilst we are still not entirely happy, we know that people who are sentenced to life sentences do not always serve for the remainder of their natural life. They might do 20 years or 15 years—good behaviour, who knows?—and they are coming back. So we would keep the status quo as our preferred option. The opposition amendment vastly improves this bill and the Greens will be supporting the amendment.

The Hon. J.A. DARLEY: For the record, I will be supporting the government's position on this.

The Hon. C. BONAROS: I think it is only fair that I address some of the comments just made by the Treasurer who says he is stunned by our position and that of the Hon. Frank Pangallo. What stuns me about this is the government's approach to rehabilitation, or lack thereof, the lack of appropriate funding for rehabilitation services for people with drug addictions and the like. I think we have made it abundantly clear in this chamber, I think I have made it abundantly clear in this chamber, what our position is in relation to people who offend in categories of child pornography, sexual assault, rape, murder. I think we have made it abundantly clear that we think those offenders ought to be locked up and ought to be locked up for a long time.

If anything, what else stuns me is that we can let those prisoners off with lighter sentences of incarceration than they perhaps deserve but we are still willing to take away their vote. Perhaps the emphasis ought to be on ensuring that those who are child pornographers, rapists, killers or sexual offenders receive appropriate sentences that are in line with their disgusting and heinous offending rather than suggesting that by protecting a person's vote we are somehow saying that that behaviour is acceptable.

If I can place on the record in the strongest terms, we do not support that behaviour. We do not support those people being free on our streets, in our communities, raping our women, our children, and offending against our communities. So perhaps that is where the attention ought to be rather than this issue of taking away someone's right to vote—not an entitlement to vote but a right to vote.

The Hon. R.I. LUCAS: Let me respond on behalf of the government. Let us make it quite clear that anyone supporting this particular amendment is saying that they are quite happy for paedophiles, child pornographers and others to be making decisions as to who is going to represent them in the parliament. The government's position is that we do not want paedophiles, child pornographers, rapists and people of that ilk making decisions as to who should represent them in the parliament. That is a fundamental policy difference between the government and the opposition.

Sure, everyone accepts the point the Hon. Ms Bonaros makes to punish these people appropriately. However, what we are saying is: should a paedophile, a child pornographer or a rapist, in essence, be making a decision as to who should be in the parliament making laws and making decisions that govern our society? That is a pretty clear distinction. The government says, 'No, if you're a paedophile, if you're a rapist, if you're a child pornographer, if you've committed one of those heinous acts, you have forfeited the right for a period of time until you have served your sentence and you come back into society.'

The Labor government, the former government, and those who might want to be fellow travellers with them say, 'No, whilst paedophiles, rapists, child pornographers and drug traffickers are serving their sentence they are perfectly entitled to have an equal vote with everybody else out in society and to decide who should be their duly elected members of parliament and who should govern the state.' It is a pretty clear policy difference.

We furiously agree with the Hon. Ms Bonaros that there should be appropriate levels of penalty, but in and of itself that is not enough. There is a clear difference, which we took to the election and fought. I acknowledge the cuteness of the Hon. Mr Parnell's position, which is that he will hold us to account for all the policy commitments we have given that he agrees with and he wants us to break all the policy commitments that he disagrees with. Perhaps the Hon. Mr Parnell better give us a list of the ones he has approved and the ones he has disapproved so that we know which ones we can break and which ones we cannot break so that we have a ready reckoner as we come before the parliament.

There is a clear difference. I am not going to prolong the debate. I just urge the Legislative Council to support the government's position.

The Hon. K.J. MAHER: I will address a couple of points that have been made. I suspect there are some people in the category that the Hon. Rob Lucas mentioned who would not be liable to serve three years or more, in all of the different people that he mentioned. There are probably some he has talked about who, even under the Liberal's bill, would still retain a vote.

The suggestion that, in any way, shape or fashion, the people who commit the types of offences the member outlined are being supported by those who vote for this amendment is, quite frankly, outrageous. We have seen a couple of times already the Labor Party introduce private members' bills that will make the community safer in relation to child sex offenders. We saw that with Colin Humphrys. Unfortunately, in that case the Liberal government copied our bill so that those serving indefinite detention who were not willing or able to control their sexual urges had to show that something had changed, that they were willing and able to control their sexual urges. We introduced that bill because we did not think that was appropriate, and we are glad the Liberal Party followed us.

We introduced a private members' bill just in the last couple of weeks to not allow those serving a sentence for child sex offences to be eligible for front-end home detention, when a potential child sex offender was to be released on such front-end home detention in Pasadena. The Liberal government has not supported that bill, so any suggestion that in some way this Labor opposition or any members of this chamber—members who, I might add, passed the laws that stopped Colin Humphrys getting out—are soft on these sorts of things is complete and utter rubbish. If anything, it is the Liberal government that is soft on these sorts of things.

The Hon. F. PANGALLO: The Treasurer has thrown me into the pool with a bunch of assorted criminals—rapists, paedophiles, killers; I find that totally offensive, to be quite honest. It gives me no greater pleasure than to see these worst-of-the-worst offenders being given the sentences they deserve. They go to gaol and pay the penalty. We have often seen how our justice system tends to also give slaps on the wrist to some of these people, and I am probably one of the first that would take to the public forum and oppose and complain about the types of sentences that are handed out.

In saying that, these people are also human beings who deserve an opportunity to be able to rehabilitate themselves. I will give you an example. A few months ago I received a letter from behind bars. It ended up that this bloke was a killer, but he wrote a letter to me asking me for some assistance, because he was a voter and he wanted some help from an elected member of parliament, because the government or Corrections had taken away a basic right from this man. He simply wanted access to magazines that he enjoyed reading. I thought to myself, 'Well, I better first find out what these magazines are, because you don't want him accessing the type of material that wouldn't lead to his rehabilitation but would in fact be a lot worse on his character.'

The Hon. R.I. Lucas: Was it Women's Weekly or something?

The Hon. F. PANGALLO: No, not quite, but close. There were some cooking magazines he wanted, some fishing magazines—nothing that was out of the ordinary or that you, I, the Leader of the Opposition or the Hon. Treasurer would not read. I wrote back to him and said, 'Look, I'll take it up for you,' and he responded with a kind letter back saying, 'Well, thank you very much, because I've written to just about every other member of parliament, and everyone ignored me.'

So that gives you an indication about some members in this parliament in terms of their attitude towards people who are locked behind bars: 'Just ignore them; they do not exist.' The way the Treasurer was talking, one day do you want to bring back the death penalty, perhaps? Is that something that you would want to aspire to—to bring that back?

Quite frankly, I really did not know why we even bothered to bring this bill up, but it is there and I am happy to support the opposition's amendment to it. Probably my sympathies are more with what the Greens are proposing. Nonetheless, I still think that while offenders are behind bars they do deserve some kind of human rights, and to strip them of everything I think can be quite cruel and not lend towards their eventual rehabilitation. In saying that, as my honourable colleague has pointed out, we will be supporting the opposition.

The committee divided on the amendment:

Ayes 11

Noes 8

Majority 3

AYES
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. Wortley, R.P.
NOES
Darley, J.A. Dawkins, J.S.L. Hood, D.G.E.
Lee, J.S. Lucas, R.I. (teller) Ridgway, D.W.
Stephens, T.J. Wade, S.G.
PAIRS
Scriven, C.M. Lensink, J.M.A.

Amendment thus carried; clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (16:44): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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