Opinion Number. 1501

Subject

elections disqualification from enrolment: person convicted and under sentence for offence punishable by imprisonment for one year or longer: person sentenced to more than one year and released on probation before expiry of one year: person convicted or discharged conditionally on appearing for conviction and/or sentence if required

Key Legislation

COMMONWEALTH ELECTORAL ACT 1902 s 39(4) : OFFENDERS PROBATION ACT 1913 (SA)

Date
Client
The Chief Electoral Officer

The Chief Electoral Officer has forwarded the following memorandum for advice:

The following communication has been received from the Commonwealth Electoral Officer for South Australia —

  1. A claim for enrolment has been received from A.B.C., who was, on 27th November, 1930, convicted of fraudulent conversion and sentenced to 18 months’ imprisonment. On the 12th August, 1931, C. was released on probation, but his sentence does not expire until the 25th January, 1932. Having regard to section 39(4) of the Commonwealth Electoral Act, I shall be glad to be advised whether, on the facts submitted, C. is now entitled to enrolment.
  2. There are cases in this State where a defendant is sentenced to a term of imprisonment for a period exceeding one year, but the sentence is suspended and the defendant is forthwith released under the provisions of the First Offenders Probation Act. What action, if any, should be taken in respect to the enrolment of such person.

The matter is submitted for favour of advice as to whether such persons are disqualified from enrolment and from voting under the provisions of section 39(4) of the Commonwealth Electoral Act.

Sub-section (4) of section 39 of the Electoral Act reads as follows:

No person who is of unsound mind, and no person attainted of treason, or who has been convicted and is under sentence for any offence punishable under the law of any part of the King’s dominions by imprisonment for one year or longer, shall be entitled to have his name placed on or retained on any roll or to vote at any Senate election or House of Representatives election.

The question to be determined in each case is whether the claimant is a person ‘who has been convicted and is under sentence for an offence punishable under the law of any part of the King’s dominions by imprisonment for one year or longer’.

In the case referred to in paragraph 1 of the Commonwealth Electoral Officer’s communication, the claimant for enrolment has been convicted and has been sentenced to imprisonment for a term longer than one year. His sentence has not yet expired, but he has been released on probation, under the Prisons Regulations, for the unexpired period of his sentence. In my opinion, he is a ‘person who has been convicted and is under sentence for an offence punishable … by imprisonment for one year or longer’, and is therefore not entitled to enrolment.

In regard to the cases referred to in paragraph 2 of the Commonwealth Electoral Officer’s communication, I cannot find any South Australian Act cited as the First Offenders Probation Act, but there is an Offenders Probation Act 1913, and I presume that this is the Act referred to by the Commonwealth Electoral Officer. Under this Act the Court may:

  1. make an order ‘discharging the person charged conditionally on his entering into a recognizance … to appear … for conviction and sentence when called upon during such period, not exceeding three years, as is specified in the Order’; or
  2. convict the person, and make an order ‘discharging such person conditionally on his entering into a recognizance … to appear … for sentence when called upon at any time during such period, not exceeding three years, as is specified in the Order.’

In such cases, as no sentence of imprisonment has been imposed, the person is not a person ‘who has been convicted and is under sentence’, and is therefore not debarred from enrolment by section 39(4) of the Electoral Act.

[Vol. 25, p. 374]