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Constitutionalising the Franchise and the Status Quo: the High Court on Prisoner Voting Rights

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Democratic Audit of Australia, Discussion Paper 19/07 (October 2007)
Constitutionalising the franchise and the
status quo: The High Court on prisoner
voting rights
Graeme Orr
Law School, University of Queensland
Discussion Paper 19/07 (October 2007)
Democratic Audit of Australia
Australian National University
Canberra, ACT 0200
Australia
http://democratic.audit.anu.edu.au
The views expressed are the authors and do not necessarily reflect those of the Democratic Audit
of Australia.
2
In recent decades, the ability of prisoners to vote alongside other resident citizens has been a
something of a political football, and a much kicked around one at that, in federal politics.1
Academic debate has tended to favour prisoner enfranchisement, on multiple grounds. In
these accounts, the vote is seen as a fundamental, if not inalienable, human right in
international law, whose denial to prisoners is indirectly racially discriminatory.2 Denying the
vote is seen as counter-productive to the purpose of incarceration as social rehabilitation, and
not sensibly understood as a form of punishment. There is more than a whiff of the discredited
idea of ‘civil death’ about prisoner disenfranchisement.3
On the political, and hence legislative front, however, prisoner voting has been fair game.
This has chiefly been a symbolic battle, with conservatives seeing prisoners as having
seriously breached the social contract. They remain part of the governed, but temporarily
forfeit the right to select the governors.
For most of last century, prisoners were disqualified from voting, or nominating or serving as
MPs whilst under sentence for an offence with a maximum of one year’s gaol. In 1983 the
Hawke government expanded the federal franchise to prisoners whose offences carried a
maximum sentence of less than five years. In 1995, the disenfranchisement was eased to an
actual sentence of 5 years or more, largely for administrative convenience
But in 2004 the Howard government reduced this to a three-year rule, in a compromise agreed
by Labor. Then in 2006, this became a blanket ban on any prisoner under full-time sentence,4
at least for an Australian offence. Ironically, the voting rights of David Hicks, despite his US
conviction on terrorism-related charges, were preserved. A further curiosity of the 2006
legislation was that prisoners were not freed of the compulsion to enrol. Rather, the Australian
Electoral Commission (AEC) was to cleanse them from the certified lists for polling day.
1 Graeme Orr, ‘Ballotless and Behind Bars: the Denial of the Franchise to Prisoners’ Federal Law Review
26(1998); Sandey Fitzgerald, 2005, ‘Ending Prisoner Disenfranchisement’ Democratic Audit of Australia
Discussion Paper 7/2005.
2 Ronnit Redman, David Brown and Bryan Mercurio, ‘The Politics and Legality of Prisoner Disenfranchisement
in Australian Federal Elections’ forthcoming in Alec Ewald and Brandon Rottinghaus (eds) Democracy and
Punishment: International Perspectives on Criminal Disenfranchisement, CUP, 2008; Melinda Ridley-Smith
and Ronnit Redman, ‘Prisoners and the Right to Vote’ in David Brown and Meredith Wilkie, Prisoners as
Citizens, The Federation Press, 2002.
3 Lisa Hill, ‘Precarious Persons: Disenfranchising Australian Prisoners’, Australian Journal of Social Issues
35(2000); Graeme Orr, 2003, ‘Ghosts of the Civil Dead: Prisoner Disenfranchisement’, Democratic Audit of
Australia Discussion Paper, 5/2003.
4 Those on periodic detention were to retain the vote.
3
The High Court of Australia was invited into this contentious fray by Vicki Roach.5 An
Aboriginal woman who was sentenced in 2004 to six years for burglary including negligent
injury and endangerment, Ms Roach had since completed a masters degree. Her case was
driven by pro-bono lawyers and run through the Victorian Human Rights Law Resource
Centre.
In late August this year, to the great surprise of most commentators, the High Court struck
down the ban on prisoner voting.6 The surprise was a product of both the conservatism of the
Court in the past decade, and its longstanding deference to parliamentary sovereignty in
electoral matters.7
The case was only a partial victory for Ms Roach, however. The 4-2 majority upheld the prior
ban on voting by those subject to sentences of three years or more, and hence she will miss
voting at the forthcoming federal election.
This note explores the compromise inherent in the Court’s reasoning, and reflects on its wider
ramifications for the constitutionalisation of the right to vote given the absence of any
mention of such a right in the Australian (or State) Constitutions.
The majority reasoning: A blanket ban on prisoner voting is arbitrary
Roach’s lawyers framed her claim in a variety of alternative ways. The central claim was that
the constitutional requirement that federal Parliament be ‘directly chosen by the people’ limits
the Parliament’s power to restrict the franchise. In particular, a guarantee that no class of the
‘people’ who at least are able to comprehend the significance of the vote should be denied it.
It was on this territory that argument was centred, and the judgments concentrated. (Other
claims, such as that restricting the franchise denied an implied right to political
communication or association, were not formally decided, but the Court doubted their
validity.)
5 For a gonzo-journalistic account of the High Court hearing, see David Brown, ‘The Disenfranchisement of
Prisoners: Roach v Electoral Commissioner & Anor’, Alternative Law Journal 32(2007).
6 Roach v Electoral Commissioner [2007] HCA 43 http://www.austlii.edu.au/au/cases/cth/HCA/2007/43.html
7 For a survey of the deferential case law, see Gerard Carney, ‘The High Court and the Constitutionalism of
Electoral Law’ in Graeme Orr, Bryan Mercurio and George Williams, Realising Democracy: Electoral Law in
Australia, The Federation Press, 2003. Prior to Roach’s case, the last successful challenge to an election law was
the Political Broadcasting Case, from whose discovery of an implied right of political communication the Court
has tended to shy ever since.
4
The lead judgment brought together Justices Gummow, Kirby and Crennan. The latter two
make an odd pair: Kirby J, the oldest judge on the bench, is the greatest dissenter in the
Court’s history. Crennan J, then the youngest judge on the bench, has so far distinguished
herself by never dissenting.
On its face, the disenfranchisement of prisoners is formally within the Parliament’s explicit
power over federal elections, including the qualifications of electors.8 However that power is
constrained by the structure and text of the rest of the Constitution, including the statement in
sections 7 and 24 about Parliament being ‘directly chosen by the people’.
The Commonwealth asked the Court to follow its traditional path of deferring to
parliamentary sovereignty, giving Parliament a broad leeway as to the rules of electoral
democracy. The phrase ‘directly chosen by the people’ is vague. Who are ‘the people’ – all
residents, adult citizens only? The only certainties are that ‘directly’ was meant simply to
exclude an indirect, US-style electoral college, and that it permits systems using the
transferable vote, such as preferential voting or Senate ticket voting.9
On the Commonwealth’s side was the fact that historically, and particularly at the time of
Federation, prisoner disenfranchisement was the norm. Whilst in comparable democracies
such as the UK and Canada, constitutional courts have recently and significantly reined in the
scope for prisoner disenfranchisement, this occurred under charters of rights explicitly
guaranteeing a right to vote. Further, many nations – including famously and most
egregiously the United States10 – continue with prisoner disenfranchisement, without losing
the character of being electoral democracies with legislatures ‘chosen by the people’.
Rather than proceeding from a statement of contemporary values, the lead judgment preferred
first to make a detailed survey of the colonial position and federation debates on electoral
qualifications. (A method bearing the hallmark of Justice Gummow’s historicism, rather than
Justice Kirby’s human rights sympathies). The justices were particularly focused on the
incongruity between section 44(ii) of the Constitution, which provides that an MP or
8 Sourced in sections 8, 30 and 51(36) of the Constitution.
9 McKenzie v Commonwealth (1984) 57 Australian Law Reports 747.
10 Rick Hasen, 2004 ‘Ending Felon Disenfranchisement in the United States: Litigation or Legislation?’
Democratic Audit of Australia Discussion Paper 9/2004.
5
candidate is disbarred whilst under a sentence for an offence punishable by one year or more,
and the ban on prisoners merely voting even if their sentence was short.
Their honours then adopted, from related law, the test that a statutory restriction has to be
‘reasonably appropriate and adapted to serve an end which is consistent or compatible with
the maintenance of the constitutionally prescribed system of representative government’. This
is a long-winded way of saying the Court reserves itself the right to second-guess Parliament,
but will only do so in flagrant cases.
Echoing the man-and-woman-in-the-street, the Commonwealth argued that whilst prisoners
were capable of exercising the franchise freely (a requirement justifying not enfranchising
minors or those of ‘unsound mind’), imprisonment was a serious and generally last option in
sentencing. In effect, by their own actions, prisoners absent themselves from ‘the people’ who
form the polity.
The lead judgment characterised the purpose of disenfranchisement as ‘further to stigmatise’
those imprisoned for offences.11 It found however that the net of disenfranchisement was cast
too wide. In agreement with Chief Justice Gleeson, who found solace in a detailed analysis of
contemporary sentencing law and practice, it stressed that whilst imprisonment is meant to be
a last resort, a substantial proportion of prisoners are sentenced for short terms, including
some for token periods. In short, a blanket ban is arbitrary and too crude to take into account
distinctions between levels of culpability.
As ever, Chief Justice Gleeson’s reasons were both shorter and more transparent. He stressed
his preference for parliamentary sovereignty, even in sensitive matters such as electoral law.
However he acknowledged that the Court could not resort to an ‘original intent’ reading of the
Constitution, rooted in 1901 understandings. To do so would involve accepting that women,
racial minorities and even religious groupings could be disenfranchised today.
Instead, the Chief Justice invoked the hoary idea that a phrase like ‘the people’ can have a
fixed connotation, but a denotation that shifts over time. This was by analogy consistent with
the reasoning that Senator-elect Heather Hill was a citizen of ‘a foreign power’ for
maintaining a British passport in 1998, even though in 1901 Britain clearly was not a ‘foreign
11 Roach’s case, above n 6, para 89.
6
power’. In effect, the phrase ‘the people’ has broadened and hardened over the past century.
How a judge is to know the meaning of the phrase at any point in time is unclear: an appeal to
popular conceptions of democracy fails since public opinion appears to favour prisoner
disenfranchisement, whilst an appeal to any legislative consensus is circular.
The Chief Justice suggests that ‘the people’ now means all citizens (at least resident citizens)
because that forms a marker of membership of the political community. That membership can
only be lost due to incapacity, or serious offending ‘conduct which manifests … a rejection of
civic responsibility as to warrant temporary withdrawal of a civic right’.12 After examining
contemporary sentencing policy and practice, his Honour concluded that disenfranchising
‘short-term prisoners’ was arbitrary.
In dissent Justice Hayne, with whom Justice Heydon agreed, rejected as indeterminate and
constitutionally flawed any appeal to ‘common understanding’ or ‘generally accepted
Australian standards’ to give content to the otherwise vague term ‘the people’.13 Similarly
rejecting appeals to overseas jurisprudence, he expresses fear that the broad notion of
‘representative democracy’ is left to be injected with meaning from outside the Constitution.
By default, then, the Constitution leaves the shape of the franchise to Parliament.
Neither dissenter cared to address the obvious hypothetical point about whether a future
Parliament could roll-back the franchise on racial or other lines, nor the paradox inherent in
leaving electoral law purely to parliaments, given the temptation for a parliamentary majority
to rig the rules to entrench itself. Justice Heydon preferred to invert the question, rhetorically
asking whether those who appeal to an ethical broadening of ‘the people’ over the 20th
century would therefore claim that because of earlier prisoner disenfranchisement, every
election since federation was tainted by constitutionally undemocratic electoral laws.
Conclusion: A shield, not a sword
The Court has held that the Government over-reached by imposing a blanket ban on prisoner
voting. Justice Callinan, the seventh justice, did not sit on the case because of retirement. He
would surely have joined the dissenters. This fact is irrelevant, since the reasoning of the four
12 Ibid, para 8
13 Ibid, paras 158-9.
7
majority justices was so similar that the case stands as binding precedent on two points. One
particular, and one general.
Before examining these points, it should be noted that the judgment has ramifications for
some State electoral systems. Both for the practical reason that States often copy the
Commonwealth franchise;14 and for the deeper reason that some State Constitutions contain a
requirement that their Parliaments be ‘directly chosen by the people’.15 Western Australia, for
instance, does so. Its mirroring of the blanket ban on prisoner voting is now
unconstitutional.16 Voters in Territory elections however have no such protection.17
The particular precedent of the case relates to prisoner disenfranchisement. A blanket ban is
clearly unconstitutional. A ban on those serving three-year sentences or more is now clearly
okay. And something in between may well pass muster, though it is unclear which ‘short-
term’ prisoners are protected. The majority’s fixation on the constitutional bar to MPs who are
serving a sentence for an offence of one year or more is salutary. Offences punishable by one
year or more were traditionally known as ‘felonies’. The government can probably return to
the drawing-board and disenfranchise anyone serving imprisonment for a felony – although it
would be administratively easier to set the rule by actual sentence as otherwise the AEC will
have to research the maximum sentence at time of sentencing in each individual case.
Understood this way, Ms Roach’s case is a limited victory for the civil rights of prisoners.
The voting rights of the bulk of prisoners remain in play in the game of political football.
The greater long-term interest in the case is its affirmation, as a general precedent, that the
words ‘directly chosen by the people’ are words of limitation. At a minimum, any gross
attempt to undo universal adult suffrage would be rebuffed by the Court, using Roach’s case
as a shield.
14 Given the efficiency of the joint roll arrangements, administered predominantly by the AEC. Thus when
prisoner disenfranchisement stood at five years, Victoria, Queensland, the ACT and the Northern Territory
followed suit. Most States/Territories, under Labor governments, baulked at following the blanket ban on
prisoners, although Western Australia legislated to mirror the same ban in 2006.
15 Eg Constitution Act 1899 (WA) s 73(2)(c).
16 Electoral Act 1907 (WA) s 18(1)(c) was so amended in 2006. Following Roach’s case, the law reverts to the
former ban on prisoners serving more than one year, a rule which is probably valid following Roach’s reasoning.
17 Bennett v Commonwealth (2007) 235 Australian Law Reports 1, an unsuccessful challenge to the stripping of
traditionally held voting rights from Norfolk Island non-citizen residents. The High Court affirmed that the
Commonwealth’s power over Territory elections is virtually unrestricted.
8
In tempering its traditional deference to parliamentary sovereignty, the High Court has not,
however handed a sword to those who might litigate for a broader franchise. For instance, in
alighting on citizenship as a marker of political community, Chief Justice Gleeson implies
that non-citizen permanent residents are validly excluded. Similarly, in stressing political
community as a bedrock concept, he suggests Parliament can exclude expatriates as well. And
in affirming ‘capacity to vote’ as a pre-requisite, all in the majority seem to be leaving it to
Parliament to exclude minors or people with severe mental impairment.
As Adrian Brooks has observed, it is a conceit that Australia was a paragon of democratic
virtue, even though it was a forerunner of first male, then female, suffrage.18 In the case of
Aboriginal Australians, the federal vote was not fully granted until 1962, and not made
compulsory in line with other Australians until 1983. In short, as students of the suffragette
movement know as well as those who study emerging democracies, the right to vote is not
granted from on high, but won through struggle. In that struggle, litigation is a relatively
minor tool.19
Any battles to further extend the franchise remain matters for the court of public opinion and
parliament. If and only if they are won there – and entrenched over time – may the courts of
law come to shield them.
18 Adrian Brooks, ‘A Paragon of Democratic Virtues: the Development of the Commonwealth Franchise’
Tasmanian University Law Review 12 (1993). See further, John Chesterman and David Philips (eds), Selective
Democracy: Race, Gender and the Australian Vote, Circa Books, 2003).
19 Compare Hasen, ‘Ending Felon Disenfranchisement in the United States: Litigation or Legislation?’.
ResearchGate has not been able to resolve any citations for this publication.
Australian Law Reports 1, an unsuccessful challenge to the stripping of traditionally held voting rights from Norfolk Island non-citizen residents. The High Court affirmed that the Commonwealth's power over Territory elections is virtually unrestricted
  • Bennett V Commonwealth
Bennett v Commonwealth (2007) 235 Australian Law Reports 1, an unsuccessful challenge to the stripping of traditionally held voting rights from Norfolk Island non-citizen residents. The High Court affirmed that the Commonwealth's power over Territory elections is virtually unrestricted.