Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Hansard source

I am taking it quite seriously. This is your proposal and I am curious as to how you are going to deal with it. If it is linked to punishment and deterrence, how do you justify the latter position? I am sure you will be able to reflect on it and provide an answer to the Senate for those reasons. As is said in the Current issues brief, ‘such punishment is for imprisonment rather than for the commission of an offence’.

The other case I am sure you are familiar with is the Grand Chamber judgment of Hirst v the United Kingdom. It is really instructive because of the general principles enunciated there. What I want to understand is how you say this legislation fits in with those general principles if you are really upholding democracy in a broad sense and if you say it is an improved position. The judgment states:

The Court stressed that the rights guaranteed under Article 3 of Protocol No. 1 were crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law and also that the right to vote was a right and not a privilege.

Granted, under the Constitution it is not a right; perhaps it is an implied right, although it has not been tested recently. They went on to say in that judgment:

However, any limitations on the right to vote had to be imposed in pursuit of a legitimate aim and be proportionate.

I would like to hear from the coalition how the blanket removal of the right of prisoners to vote was both a legitimate aim and proportionate. There are circumstances, granted, in which you might be able to justify that removal. But what I am keen to understand from the coalition is how, in this instance of the blanket removal, it was both a legitimate aim and proportionate.

Of course, ‘the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage’ is very important. It is extraordinarily important to ensure that you do in fact achieve that. To destroy rights, to take away rights, is a severe measure; there is no argument about that. It should not be undertaken lightly. The principle of proportionality requires ‘a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned’. So this is the other question that I pose to you. I am sure that in your reply you are going to be able to explain how your measure, given that it is a disfranchisement, has a discernible and sufficient link between the sanction and the conduct. It would be helpful to understand both the legitimate aim that you intend to use and the proportionality. In other words, is it proportional to the offence?

As I said in the earlier example, you can have a situation where, for a minor offence, a person loses the right to vote. They may end up in prison for two or three months for an unfortunate driving incident or something like that. That might fall during an election period and, as a consequence, they lose the right to vote. You might have a situation where someone has committed a more serious offence and is imprisoned for 2½ years but no election falls within that period, so they do not lose the right. I would not mind you explaining how you say that in those circumstances the measure is proportionate to the offence. You have one person who, because of the electoral cycle, unfortunately finds themself in prison for two months and loses their right to vote. You might have an argument with regard to the person who is imprisoned for 2½ years, but if that does not fall within the period of an election they do not lose their right to vote. They then come out and exercise that right accordingly.

If you say that the only reason for the losing of the right is the detention then how is that proportionate? How is it a legitimate aim directed at the type of offence? I am not making the case. I would like you to answer it so that it is clear how you can say that it is both legitimate and proportionate to the offence. It would be very helpful to understand that. What they said in relation to the UK provision was that it remained a ‘blunt instrument’. The judgment said:

It stripped of their Convention right to vote a significant category of people and it did so in a way which was indiscriminate.

What I want to find out from you is how you can say that it is not an indiscriminate use of disfranchisement, of removal of the right to vote. How do you argue that it is both a legitimate aim and proportionate if it is a blunt instrument? I thought it was helpful to at least lay out the argument so that you could work through some of these matters before us. The UK judgment went on to say:

Such a general, automatic and indiscriminate restriction on a vitally important Convention right had to be seen as falling outside any acceptable margin of appreciation, however wide that margin might be ...

They argue that there is a margin of appreciation. You can have legislation that removes the right. It seems clear that they found that a blanket right could potentially fall outside any acceptable margin of appreciation. I want the coalition to answer and perhaps provide a cogent argument as to—