All prisoners jailed for an offence forfeit their entitlement to vote in federal elections.  How reasonable is this stance, when one of the tenets of our democracy is universal suffrage?  Does the practice of other democracies offer useful guidance?

1          INTRODUCTION

The right of citizens to vote in their countries’ elections is axiomatic to western democracy.  In many ways, Australian electoral law stresses the importance of the franchise as an expression of citizens’ choice in the governance of the nation, with provision for compulsory voting,[1] discouragement of informal voting,[2] and the creation of the Australian Electoral Commission to educate voters about the electoral process.[3]  Paradoxically, the same importance has not been placed upon the universality of the franchise.

Prior to an amendment of the Commonwealth Electoral Act 1918 (Cth) (“Commonwealth Electoral Act”) in 2006, convicted prisoners serving a sentence of three years or more were disentitled from enrolment to vote at any Senate election or House of Representatives election.  On 22 June 2006, the Commonwealth Electoral Act was amended to increase the level of prisoner disenfranchisement by providing that all convicted prisoners were disentitled from voting, regardless of the length of their sentence.[4]

In Roach v Electoral Commissioner and Commonwealth of Australia (“Roach”),[5] the High Court considered the constitutional validity of the 2006 amendments to the Commonwealth Electoral Act.  On 30 August 2007, the High Court decided by majority 4/2,[6] that the Commonwealth Electoral Act provisions effecting prisoners’ disenfranchisement, namely sections 93(8AA), 208(2)(c) and 221(3), were invalid because they were contrary to sections 7 and 24 of the Commonwealth Constitution.  The Court further held that the pre-2006 legislation remained in force and is valid.

This paper is divided into three sections.  First, the paper considers the historical development of the Australian franchise and the extent to which universal suffrage is constitutionally entrenched.  Second, the paper assesses the reasonableness of policy justifications of prisoner disenfranchisement by reference to Roach.  Third, the paper considers the relevance to Australia of findings in Canada, Europe, and South Africa that laws excluding prisoners from the vote are contrary to their respective constitutional protections of the franchise.  The paper ultimately argues that because the Commonwealth Parliament retains some ability to regulate the scope of the federal franchise, and the High Court has left the constitutional protection of the franchise vulnerable to attack, there is a pressing need for Australia to follow the lead of other democracies in protecting the universal franchise in a constitutional Bill of Rights.

2          CONSTITUTIONAL GUARANTEE OF UNIVERSAL SUFFRAGE

The Constitution does not explicitly guarantee a right to vote.  However, the High Court has established that sections 7 and 24 of the Constitution, by requiring the members of the Senate and the House of Representatives to be “directly chosen by the people” of the States and of the Commonwealth respectively, establish a system of representative democracy.[7]  In Roach, Gleeson CJ held that the words “directly chosen by the people” have “because of changed historical circumstances including legislative history … come to be a constitutional protection of the right to vote”.[8]

The franchise to elect the inaugural members of the House of Representatives and the Senate in 1901 rested on section 41 of the Constitution, which gave adult persons who had acquired a right to vote at elections for the more numerous House of the Parliament of a State the right to vote at Commonwealth elections.  State franchises were considerably less liberal than they are today.[9]

In R v Pearson; Ex parte Sipka the High Court held that the enactment of a uniform franchise in the Commonwealth Franchise Act 1902 (Cth) meant that the effect of section 41 was spent.[10]  The Commonwealth Franchise Act was more liberal than the State regimes.[11]  Since 1902, the Commonwealth franchise has expanded considerably.  The right to vote was given to non-European migrants in 1961,[12] and to indigenous Australians in 1962.[13]  In 1973, the minimum voting age was reduced from 21 to 18.[14]

In contrast, the franchise, as it applies to prisoners, has fluctuated since 1902.  Section 4 of the Commonwealth Franchise Act disqualified those persons convicted and under sentence for any offence punishable by imprisonment for one year or longer.  Amendments to the Commonwealth Electoral Act[15] in 1983 reduced the disenfranchisement of prisoners by disqualifying only those under sentence for an offence punishable by imprisonment for five years or longer.[16]  In 1995, this provision was amended to make the disqualification dependent on the actual length of the sentence and not the maximum penalty applicable.[17]  However, an amendment to the Commonwealth Electoral Act in 2004 restricted the franchise by disqualifying persons serving a sentence of three years or longer.  In 2006, a blanket ban on voting at Commonwealth elections was imposed on all persons serving a sentence of imprisonment.

Subject to exceptions,[18] it is clear that the Commonwealth franchise, and the interpretation of the words “the people” in sections 7 and 24, has expanded since 1901 towards a position of near universal adult suffrage.[19]  Prior to Roach, prisoners were the most significant[20] adult group of citizens[21] excluded from voting, except those who were incapable of understanding the nature and the significance of the franchise.[22]   Is this anomaly reasonable?

3          THE REASONABLENESS OF PRISONER DISENFRANCHISEMENT

3.1       Social contract theory

Most attempts to justify prisoner disenfranchisement rely on some variation of social contract theory.[23]  The crux of social contract theory is that in a liberal democracy citizens trade their freedom for protection by the laws of a government.  Accordingly, any person who breaches those laws dishonours their contract with society, and the government is entitled to strip that person of the right to participate in the political process.

In Roach, Gleeson CJ saw the relationship between the citizen and the community as “common bond, involving reciprocal rights and obligations”.  He found that a citizen’s breach of an obligation, in the form of the commission of a serious offence, may sever the bond between the citizen and the community.  He held, therefore, that it would be “appropriate for Parliament to mark such behaviour as anti-social and to direct that physical separation from the community will be accompanied by symbolic separation in the form of a loss of a fundamental right”.[24]

Despite the superficial appeal of Gleeson CJ’s reasoning, it breaks down under closer examination.  First, if an individual’s commission of a serious offence breaks the bond between themselves and society, resulting in their “civil death”, it is inconsistent that the individual remains subject to the laws of society whilst incarcerated.  Second, it is unlikely than an individual living in a democratic society can freely bargain away their fundamental right to vote to the whim of the law makers.   Third, if the goal of the social contract is not only to “suppress individuals’ ugliest impulses” but also to “promote human freedom and development”, then it would actually be consistent with the social contract theory to give prisoners the franchise.[25]   It may assist in the rehabilitation of offenders by using their participation in the political process to forge their integration into society, or at least into societal norms of acceptable conduct.[26]

3.2       Importance of the vote

Any exclusion of any group of persons from voting at federal elections must be examined in light of the desirability of universal suffrage.  As recognised by the joint majority in Roach, “[v]oting in elections for the Parliament lies at the very heart of the system of government for which the Constitution provides”.[27]  In their view, the existence and exercise of the franchise reflects notions of citizenship and membership of the Australian body politic in two key ways.[28]  Firstly, voting for members of Parliament secures a minimum form of participation in the democratic process.  Secondly, voting gives electors a voice with which to bring their concerns to the attention of the legislators, and, through the selection of representatives, to direct their legislative activities.  In addition, through the selection of the legislators, voting indirectly involves a selection of the executive government.[29]  Any derogation from universal suffrage will therefore be unreasonable unless it is justified by a “substantial” reason.[30]

3.3       Arbitrary disentitlement

The joint majority in Roach said a reason will be “substantial” if it is “reasonably appropriate and adapted to serve an end which is consistent or compatible with the maintenance of the constitutionally prescribed system of representative government.[31]  In finding that the 2006 amendments were not “reasonable appropriate and adapted”, the majority noted that they operated to exclude all prisoners from voting with regard to the nature or seriousness of the offence committed or the length of the term of imprisonment of the individual prisoner.[32]  This is of particular significance because of the substantial number of prisoners serving short term sentences for minor offences[33] and the greater likelihood for a short term sentence to be imposed on an offender who is affected by poverty, homelessness or mental health problems, or geographical circumstances, and who therefore does not qualify for a non-custodial sentence. 

The 2006 amendments also had the potential for inconsistent outcomes across the States and Territories, among which sentences for the same or comparable offences vary significantly, with some States or Territories imposing a higher maximum sentence than others, and some not providing for a sentence of imprisonment at all.[34]  Factors to be taken into account in sentencing and parole criteria are also not uniform between the various states and territories.

While the majority in Roach found that the blanket disenfranchisement of prisoners was arbitrary and unconstitutional, they considered that the exclusion of persons serving sentences of three years or more was constitutionally valid.  The majority considered that because the three year limit distinguished between serious unlawfulness, and less serious but still reprehensible conduct, it avoided the difficulties that primarily gave rise to their conclusion that the blanket disenfranchisement was arbitrary.[35]

The reasoning behind the distinction between, one the one hand, the invalidity of the blanket disenfranchisement of prisoners, and on the other hand, the validity of the disenfranchisement of prisoners serving sentences of three years or longer, is  troublesome.   While, the Parliament still retains some power to regulate the scope of the franchise, their legislative boundaries remain unclear.  By implementing a “reasonably appropriate and adapted” test, the High Court explicitly refrained from identifying the maximum level of constitutionally permissible prisoner disenfranchisement[36] and made this level dependent upon the circumstances of any particular case.  For example, if States and Territories were to adopt mandatory sentencing laws requiring a judicial officer to sentence a repeat offender of minor crimes to a sentence of three years, then it may be that the disenfranchisement of prisoners serving sentences of three years or more is unconstitutional.  Since the right to vote is the touchstone of western democracy, it is inappropriate that its scope and limits are left to be determined by the courts on what seems like a case-by-case basis.

1. JURISPRUDENCE OF OTHER JURISDICTIONS

The constitutional right of prisoners to vote has been the subject of litigation in other jurisdictions.  The Canadian Supreme Court,[37] the European Court of Human Rights,[38] and Constitutional Court of South Africa[39] have each held prisoner disenfranchisement provisions[40] invalid on the basis that they contravened the provisions of the respective jurisdictions’ constitutional documents that guarantee certain standards of voting entitlement.[41]  In light of these decisions, the Australian position seems out of step with western democracy.

In each jurisdiction, the constitutionally protected right to vote was not absolute;[42] rather, legislation impairing citizens’ rights to vote may be valid if the legislation bore some proportionality to a legitimate government objective.[43]  Despite similarities to the Australian position, all members of the Court in Roach found these decisions unpersuasive.  The Court reasoned that the decisions involved the application of a different legal test than in Australia,[44] that the decisions were based on provisions dissimilar to the provisions of the Australian Constitution,[45] and that the legislative power of the Commonwealth is not affected by developments in international law.[46]

The legal relevance of these decisions to Australia is further questionable given that each decision was based on the interpretation of a human rights statute.  In contrast, the Constitution, which was designed for the purpose of giving effect to a federal union, lacks a Bill of Rights, and only contains a few express rights.[47]  The High Court of Australia has been reluctant to find constitutional implications of rights and freedoms.  As explained by Mason CJ in Australian Capital Television v Commonwealth:

The framers of the Constitution accepted, in accordance with prevailing English thinking, that the citizen’s rights were best left to the protection of the common law in association with the doctrine of parliamentary supremacy.[48]

This reasoning founded Gleeson CJ’s view in Roach that where a right is contained in a human rights instrument, that instruments confers on courts a wider power of judicial review to determine whether a particular derogation is permissible than ordinarily applied under our Constitution.[49]  This greater degree of deference accorded to Parliament, and the uncertain scope and limits of the constitutional protection of the franchise, lay the groundwork for the Parliament to erode the fundamental right of citizens to vote in elections.

4          CONCLUSION

There is little doubt that the decision in Roach represents a significant milestone in Australian constitutional law.  The right of a significant proportion of Australia’s prison population to vote is now regarded as being constitutionally protected.

However, Roach should not be used to advance the proposition that our Constitution adequately protects citizens’ rights.  While the High Court found the blanket prisoner disenfranchisement unconstitutional, they failed to find that prisoners serving sentences of three years or more had a constitutional right to vote.   Furthermore, by affirming that the Parliament retains power to legislate with respect to the scope of the franchise, and simultaneously failing to define the boundaries of that power, the High Court has left the constitutional protection of the franchise uncertain.

It is therefore desirable that Australia follow the lead of Canada, Europe and South Africa and enshrine the right of all capable, adult persons to vote in a Bill of Rights.  It is only then that Australia’s journey to universal suffrage will truly be complete.