ARTICLES CRIMINAL PRIORS & THE RIGHTTO BE ELECTED The salutary tale of Ronald ‘Bunna’ Walsh OSCAR ROOS and BENJAMIN HAYWARD n 30 May 1970 Ronald William ‘Bunna’ Walsh Australian jurisdictions and argues specifically that was popularly elected to the Legislative the Victorian and Western Australian parliamentary REFERENCES Council of Victoria. After the declaration of disqualification provisions are draconian and in breach 1. [1971] VR 33. the polls, however, Walsh’s election was referred byof fundamentalthe human rights. In those two jurisdictions, 2. See Roach v Electoral Commissioner Victorian Legislative Council to the Victorian Supreme in particular, there is urgent need for legislative reform. (2007) 239 ALR 1,17-9 (Gummow, Kirby O and Crennan JJ). Court sitting as the Court of Disputed Returns. The It is worth noting two limitations on the scope of referral was based on Walsh’s criminal record. this article. First, the focus is solely on parliamentary At the time of Walsh’s election, s 73 of the Constitution disqualification based on prior criminality, as opposed Act Amendment Act 1958 (Vic) ‘provided that no person to disqualification based on the commission of a shall be capable of being elected or continuing to be a criminal offence by a parliamentary member while Member of the Legislative Council who ... has been in office. While the policy issues concerning the two convicted of treason or any felony or infamous crime forms of parliamentary disqualification may overlap in any part of Her Majesty’s dominions’ (emphasis slightly, we maintain that the arguments in favour added). Walsh had no adult criminal history, but he did of limiting or eliminating disqualification based on a have several Children’s Court priors for which he, in candidate’s criminal history are much more clear cut the main, had escaped conviction and, therefore, the and compelling. operation of s 73. However, on 14 February 1950, Second, this article focuses exclusively on the when Walsh was aged 16, he had been convicted in the parliamentary disqualification provisions which apply in Children’s Court at South Melbourne of the offence the various states and territories. The Commonwealth of robbery and sentenced to six weeks imprisonment parliamentary disqualification provision is contained in suspended on his entering into a good behaviour bond. s 44(ii) of the Australian Constitution, which disqualifies In R v Walsh1 the Victorian Supreme Court determined those ‘attained of treason’ or currently serving a that Walsh’s conviction for an offence of robbery, sentence of imprisonment of one year or longer from even though it was recorded when Walsh was child, ‘being chosen ... as a senator or a member of the constituted a conviction for felony, hence making him House of Representatives’. As the Commonwealth subject to the disqualification provision contained in the disqualification provision is constitutionally entrenched, Constitution Act Amendment Act Consequently, Walsh’s it can only be amended by a ‘double majority’ election was declared void. referendum procedure (Australian Constitution s 128). This creates an almost insurmountable obstacle to When the Victorian Parliament came to enact its its alteration. By contrast, the state and territory Constitution Act in 1975, the disqualification provisions provisions are contained in ordinary statutes, which, were amended. Children’s Court priors, whether a subject to one possible complication in Victoria, conviction was recorded or not, no longer disqualified a are amenable to alteration through the normal person who was otherwise eligible, from being elected parliamentary process. to either House of Parliament. Walsh was subsequently elected to the Victorian Legislative Assembly in May 1979 and went on to enjoy a distinguished A brief colonial history parliamentary career, during which he held a number of Given Australia’s history as a penal colony, it is Ministerial portfolios. Walsh retired from the Victorian unsurprising that colonial legislation made some Parliament in 1992. provision for parliamentary disqualification based on a person’s criminal history. In summary, colonial A contemporary issue legislation bore the following features: The story of Ron ‘Bunna’ Walsh is worth recounting • disqualification of candidates and sitting members was because it serves as a timely reminder of the valuable linked to disqualification of electors (ie the loss of contribution to public life that can be made by those voting rights) who have a criminal record. It is of contemporary • disqualification was suffered by those ‘attained’ of relevance because most Australian jurisdictions still treason, convicted of felony, or of any ‘infamous provide for some form of parliamentary disqualification crime’ in any part of the ‘Queen’s dominions’ based on a person’s criminal history. This article • the period of disqualification ended for those surveys the various provisions that apply in the several pardoned, or who had served their sentence.2 36 — AltLj Vo I 34:1 2009 ARTICLES The other Australian states either have no provision for parliamentary disqualification based on criminal history, or provisions which are much more narrowly targeted than in Victoria or Western Australia. These disqualifications were justified on the basis that at all: apart from a minority of mostly minor indictable persons attained of treason or convicted of felony offences, nearly all indictable offences are punishable were ‘dead in law’. Additionally, the disqualification 3. A term which is probably synonymous by a term of imprisonment of five years or more, even with the British Commonwealth: see Greg of those convicted of an ‘infamous offence’ (such though the overwhelming majority of people found Taylor, The Constitution of Victoria (2006) as fraud or perjury) reflected their historical guilty of those offences are sentenced to a much lesser 232 fn 159. incompetence as witnesses. term of imprisonment, or (most commonly) escape 4. Constitution Act 1975 (Vic) s 6 1 A. Strikingly, contemporary disqualification provisions in imprisonment entirely. 5. Constitution Act 1975 (Vic) s 6 1 A( I )(c). some jurisdictions are significantly broader than their Fifth, the Victorian disqualification encompasses 6. See also Taylor, above n 3, 233-4. colonial antecedents. offending within the ‘British Commonwealth of nations’.3 Lastly, the disqualification is effectively life long. A survey of the current law in the states Although there is provision in the Constitution Act and territories 1975 (Vic) for the Legislature to relieve a disqualified Victoria person ‘from the consequences of alleged defaults’,4 The current Victorian provisions for parliamentary this provision appears only to make provision for disqualification based on criminal history are contained relief from disqualification on grounds of conflicts in the Constitution Act 1975 (Vic). Section 48(2) provides of interest. To qualify for relief under s 61 A, the that a person who has been convicted of ‘treason disqualifying act must have ‘occurred or arose without or treachery’ under Australian law and has not been the actual knowledge or consent of the [disqualified] pardoned (s 48(2)(a)), or is serving a sentence of person or was accidental or due to inadvertence’.5 five years imprisonment or more (s 48(2)(b)), is not This requirement makes the provision inapplicable entitled to be enrolled as an ‘elector’. Additionally, to disqualification related to criminal history, as s 44(3) disqualifies an elector who has been convicted disqualification related to criminal history is triggered or found guilty of an indictable offence punishable on first by the commission of an indictable offence, and conviction by imprisonment for life or a term of five the commission of an indictable offence normally years or longer while over the age of 18 under the law of requires the establishment of a mental element of Victoria or any of ‘the British Commonwealth of nations’. intent: it cannot be said that an indictable offence was The astonishing breadth of the Victorian disqualification committed ‘accidentally’ or ‘inadvertently’ or ‘without provision needs to be emphasised. the actual knowledge or consent of the offender’.6 First, in contrast to the legislative provisions enacted Two examples will suffice to illustrate the breadth when R v Walsh was decided in 1971, and in contrast to of the Victorian disqualification and its potential to the historical position, the current provision captures result in injustice: both those offenders who are convicted, and also those • shoplifting offenders who escape the recording of a conviction • political offences against tyrannical governments within against them as a reflection of the relative lack of the ‘British Commonwealth of Nations’, compared seriousness of their offending. with offending in non-Commonwealth nations. Second, disqualification is triggered irrespective of Shoplifters who are prosecuted under Victorian law are whether the relevant indictable offence is prosecuted normally charged with the offence of theft. Theft is an on indictment or presentment (as are the more serious indictable offence under s 74 of the Crimes Act 1958 crimes), or summarily in a Magistrates’ Court. (Vic), and is punishable by a term of imprisonment Third, the restriction of the category of indictable of up to ten years. Shoplifting is normally regarded offences to which the disqualification provision applies as a relatively minor offence: it is almost inevitably relates to