Bills Digest No. 28 2004-05
Referendum Amendment (Prisoner Voting and Other Measures) Bill
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Contact Officer & Copyright Details
Electoral and Referendum
Amendment (Prisoner Voting and Other Measures) Bill
House: House of Representatives
Portfolio: Special Minister of State
Schedule 1 commences
10 August 2004; the remaining provisions commence on the day the
Act receives Royal Assent.
The stated purpose of the Bill is
to amend the Commonwealth Electoral Act 1918 (the
Electoral Act), the Referendum (Machinery Provisions) Act
1984 (the Referendum Act) and the Electoral and Referendum
Amendment (Enrolment Integrity and Other Measures) Act 2004
(the Enrolment Integrity Act) to address operational problems
identified with the amendments made by the Senate during debate on
25 June 2004 of the Enrolment Integrity Act.(1) The
amendments are timed to come into force immediately after
commencement of the amendments made by the Enrolment Integrity Act
so as to correct the perceived anomalies in that Act.
Under the Electoral Act prisoners serving sentences of 5 years
or longer are not entitled to vote in federal
elections.(2) It was originally proposed, by the
Enrolment Integrity Act, to remove the right to vote from all
prisoners serving a sentence of imprisonment. That provision was,
however, amended in the Senate, on the motion of Australian Labor
Party Senator John Faulkner, to remove the right to vote from any
(b) is serving a sentence of imprisonment
(i) commenced on or before the return of the writs
for an election for the House of Representatives or Senate; and
(ii) continues at the issuing of writs for any
succeeding election for the House of Representatives or Senate.
According to the author of the Explanatory Memorandum, this
amendment is unworkable because prisoners affected by it could only
be removed from the roll by the existing objection process, and
there would not be enough time available to conduct that process.
Effectively, the Australian Electoral Commission (AEC) would need
to ascertain at the time of the issue of the writs for an election,
which prisoners come within the specified category, and then
complete the objection process in the 7 day period between the
issue of the writs and the close of the rolls. To rectify this, the
Bill proposes to prevent from voting all prisoners serving a
sentence of 3 years or longer.
Provisions of this nature are controversial. It is arguable that
provisions purporting to disenfranchise prisoners are invalid by
reason of an implied right to vote in the Australian
Constitution.(3) Similar provisions have been held to
infringe constitutional provisions in Canada and in
One question that arises in relation to the proposed provision
is whether or not it applies to prisoners who have been released on
parole or other community based early release schemes, such as home
detention. The proposed provision, like the current one
(pre-Enrolment Integrity Act), refers to serving a sentence . In
some jurisdictions, however, persons released on parole are deemed
to be serving a sentence .(5) For that reason it seems
that at least some prisoners released on parole would be caught by
the proposed disenfranchisement provision, and indeed, by the
current disenfranchisement provision.
The Enrolment Integrity Act addressed this issue by adding to
the Electoral Act a definition of serving a sentence of
imprisonment . The form of that definition is:
(8AA) For the purposes of paragraph (8)(b), a
person is serving a sentence of imprisonment only if:
(a) the person is in detention on a full-time
basis for an offence against a law of the Commonwealth or a State
or Territory; and
(b) that detention is attributable to the sentence
of imprisonment concerned.
The addition of that definition would have had the effect that
prisoners released on parole did not come within the provision.
According to the author of the Explanatory Memorandum, the proposed
provision is not intended to apply to those on parole:
Prisoners released on parole will also be entitled
to re-enrol. The provision will not apply to prisoners serving
sentences of periodic detention or people serving a non-custodial
It is now proposed, however, by this Bill, to remove the
definition of sentence of imprisonment . It is apparently thought
by those responsible for the Bill that the definition is not
necessary with the proposed provision that refers to serving a
sentence of three years or longer .(7) For the reasons
expressed above, however, a definition of serving a sentence is
indeed required if it is to be clear that the section does not
apply to those released on parole or those serving other forms of
The Enrolment Integrity Bill contained provisions directed
toward shortening the closure of the rolls period (the period
between the issue of the writs for an election and the close of the
rolls for new and altered enrolments). Those provisions were not
supported in the Senate, but some provisions that would have
changed the close of the rolls period in respect of referenda were
inadvertently left in the Enrolment Integrity Act. This Bill
proposes to repeal those provisions.
The Enrolment Integrity Act introduces requirements relating to
proof of identity and address for persons seeking to enrol to vote.
Those provisions were agreed to with amendment by the Senate. The
purpose of this Bill is to streamline the commencement provisions
in relation to those provisions and to clarify the provisions
relating to the review by the AEC of the operation of the new
requirements for proof of identity.
Item 1 repeals paragraph 93(8)(b) of the
Electoral Act and substitutes a new paragraph
93(8)(b) that renders ineligible to vote persons serving a
sentence of 3 years or longer.
Item 2 proposes to repeal subsection 93(8AA) of
the Act the definition of serving a sentence of imprisonment and
insert a new subsection 93(8AA) that is an
application provision ensuring that the Act applies whether the
person started serving the sentence before or after the
commencement of this schedule.
Items 3 to 5 make technical amendments to the
Electoral Act associated with the new prisoner voting provision
referred to in item 1.
Item 6 makes a technical amendment to the
Referendum Act associated with the new prisoner voting provision
referred to in item 1.
Items 1 and 2 repeal provisions inadvertently
left in the Enrolment Integrity Act after the Senate rejected other
Item 1 amends the commencement provisions of
the Enrolment Integrity Act to streamline the commencement date of
the provisions relating to proof of identity and address on
Item 2 repeals item 132A of the Enrolment
Integrity Act and inserts two new items 132A and 132B. These new
items clarify the provisions relating to the AEC s review of the
evidentiary requirements for proof of identity and address. Under
the proposed provisions the AEC must start a review two years after
the commencement of the new provisions for identification contained
in the Enrolment Integrity Act. The AEC must consider the effect of
the provisions on enrolment and enrolment procedures and must
report within 6 months of commencing the review.
The Bill is addressed essentially at clarifying and correcting
provisions of the Enrolment Integrity Act. In large part the Bill
achieves those ends but careful scrutiny should be given to the
proposal to dispense with subsection 93(8AA) of the Electoral Act,
which defines serving a sentence . The retention of the definition
or substitution of a similar one would assist in ensuring that the
effect of the Bill is consistent with the intention expressed in
the Explanatory Memorandum that prisoners released on parole and
serving non-custodial sentences or periodic detention are to be
allowed to vote.
Explanatory Memorandum, Electoral and Referendum Amendment
(Prisoner Voting and Other Measures) Bill 2004, p. 2.
Commonwealth Electoral Act 1918, s.93(8)(b).
For an extensive discussion of the issue of prisoner voting
rights see Jerome Davidson, Inside Outcasts: Prisoners and the
right to vote in Australia , Current Issues Brief, no. 12,
; and for a discussion of the Enrolment Integrity Bill see Jerome
Davidson, Electoral and Referendum Amendment (Enrolment Integrity
and other Measures) Bill 2004 , Bills Digest, no. 136,
Inside Outcasts: Prisoners and the right to vote in Australia ,
See for example s. 14 of the Parole of Prisoners Act
Explanatory Memorandum, op cit., p. 4.
10 August 2004
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