Senate against Mandatory Minimum Sentence for Open Voting


The Senate on Friday (June 15) proposed an amendment to the Representation of the People Act 2007, to remove the imposition of a mandatory minimum sentence for breach of Clause 4, with the punishment to be instead, left to the discretion of a judge.
Clause 4 of the Act, which has already been passed in the House of Representatives, makes it an offence for persons to intentionally display a marked ballot and, upon summary conviction before a resident magistrate, the offending person “shall be liable to a fine of not less than $20,000 nor more than $80,000, and/or including imprisonment for a period of not less than three years nor more than five years, with or without labour, or liable to both the fine and imprisonment”.
Leader of Government Business in the Upper House, Senator A. J. Nicholson, acknowledged that the provision is aimed at preventing the intimidation of potential voters, “who may feel compelled to display their ballots in circumstances where the failure to do so may result in violence being perpetrated against that person or others”.
He noted however that the imposition of a mandatory sentence was not in keeping with established judicial practice. “The trend across the Commonwealth certainly in Canada and in the Caribbean, is that the trend of mandatory sentencing is frowned upon; that is the Alpha and Omega of the entire thing,” he stated.
Senator Nicholson suggested that the Bill should instead state that persons who breach Clause 4, should be subject to a fine not exceeding $80,000 or to imprisonment to a term not exceeding five years or to both such fine or imprisonment.
Opposition Senator Dorothy Lightbourne agreed, stating that “the view and the continuing trend around the world is that mandatory sentences constrain the discretion of our judges. We are here to pass laws and the judges carry out the effect of the laws.”
“In carrying out their responsibilities, the judges should be left to determine sentences based on the peculiar circumstances before them. Perhaps the person who committed the offence might be someone who is not even mentally sound,” argued Senator Lightbourne.
Leader of Opposition Business in the Senate, Senator Anthony Johnson in the meantime, noted that voting against the clause, was a departure from the long held tradition of abiding by the recommendations of the Electoral Commission and its predecessor, the Electoral Advisory Committee.
Senator Nicholson maintained however, that this is the correct path to take in the circumstances.
The Bill, which includes provisions to ensure secrecy safeguards for physically challenged voters and to increase from 250 to 400, the average number of electors in each polling division, was passed with the proposed amendment and will now be returned to the House of Representatives for confirmation by that body.

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