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?
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, discouragement of informal voting, and the creation of the Australian Electoral Commission to educate voters about the electoral process. 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.
In Roach v Electoral Commissioner and Commonwealth of Australia (“Roach”), 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, 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. 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”.
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.
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. The Commonwealth Franchise Act was more liberal than the State regimes. Since 1902, the Commonwealth franchise has expanded considerably. The right to vote was given to non-European migrants in 1961, and to indigenous Australians in 1962. In 1973, the minimum voting age was reduced from 21 to 18.
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 in 1983 reduced the disenfranchisement of prisoners by disqualifying only those under sentence for an offence punishable by imprisonment for five years or longer. In 1995, this provision was amended to make the disqualification dependent on the actual length of the sentence and not the maximum penalty applicable. 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, 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. Prior to Roach, prisoners were the most significant adult group of citizens excluded from voting, except those who were incapable of understanding the nature and the significance of the franchise. 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. 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”.
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. 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.
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”. 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. 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. Any derogation from universal suffrage will therefore be unreasonable unless it is justified by a “substantial” reason.
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. 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. This is of particular significance because of the substantial number of prisoners serving short term sentences for minor offences 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. 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.
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 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.
- JURISPRUDENCE OF OTHER JURISDICTIONS
The constitutional right of prisoners to vote has been the subject of litigation in other jurisdictions. The Canadian Supreme Court, the European Court of Human Rights, and Constitutional Court of South Africa have each held prisoner disenfranchisement provisions invalid on the basis that they contravened the provisions of the respective jurisdictions’ constitutional documents that guarantee certain standards of voting entitlement. 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; rather, legislation impairing citizens’ rights to vote may be valid if the legislation bore some proportionality to a legitimate government objective. 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, that the decisions were based on provisions dissimilar to the provisions of the Australian Constitution, and that the legislative power of the Commonwealth is not affected by developments in international law.
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. 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.
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. 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.
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.
 Commonwealth Electoral Act 1918 (Cth) (“Commonwealth Electoral Act”) s 245.
 Commonwealth Electoral Act ss 239 and 240 prescribe the method for marking ballot papers for the Senate and the House of Representatives. In some circumstances, the improper marking of a ballot paper will amount to an informal vote: Commonwealth Electoral Act s 268.
 Commonwealth Electoral Act Part II, Division 2.
 Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth) Schedule 1, items 14 and 15.
 Roach v Electoral Commissioner and Commonwealth of Australia  HCA 43 (“Roach”).
 The majority comprised Gleeson CJ (in a separate judgment), and Gummow, Kirby and Crennan JJ (“joint majority”) in a joint judgment. Hayne and Heydon JJ delivered separate dissenting judgments, although Heydon J substantially agreed with Hayne J’s reasons.
 See for example Attorney-General (Commonwealth); Ex rel McKinlay v Commonwealth (1975) 135 CLR 1 (“McKinlay”); McGinty v Western Australia (1996) 186 CLR 140 (“McGinty”); Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd v Commonwealth (“ACTV”) (1992) 177 CLR 106. An exercise of legislative power under sections 30 and 51(xxxvi) of the Constitution to prescribe the qualifications of the electors of the House of Representatives, and consequently the electors of the Senate (Constitution s 8) is subject to the Constitution, including sections 7 and 24 and their implied system of representative democracy. Sections 7 and 24 also place limits on the territories power in s 122: Queensland v The Commonwealth (1977)139 CLR 585.
 Roach per Gleeson CJ at . Gleeson CJ, by implication, adopted the position of McTiernan and Jacobs JJ in McKinlay (at 36), and Gummow J in McGinty (at 286-287) that the content of the collective “the people” must be interpreted in light of the modern day understanding and perception of that term and the particular stage which has then been reached in the evolution of representative democracy.
 Various restrictions applied to women, indigenous persons, persons failing to satisfy certain age and property requirements, persons in receipt of charitable aid, members of the navy, army and police forces and persons of unsound mind. Disqualifications also applied to prisoners and to persons convicted of specific offences: See Parliamentary Electorates and Elections Act 1893 (NSW) s 23(iv); Elections Act 1885 – 1897 (Qld) s 8(2); Electoral Code 1896 (SA) s 17; Constitutional Act 1855 (Tas) s XXV; Electoral Act 1896 (Tas) ss 145-146; Constitution Act Amendment Act 1890 (Vic) (as amended by the Purification of Rolls Act 1891 (Vic)) s 179; Constitution Act Amendment Act 1893 (WA) ss 13(2) and 22(2).
 R v Pearson; Ex parte Sipka (1983) 152 CLR 254. See also Snowdon v Dondas (1996) 188 CLR 48 at 72 per curiam.
 The disqualifications that remained include (i) persons under 21 years of age; (ii) people of unsound mind; (iii) indigenous people (unless permitted to vote under s 41); (iv) natives of Asia, Africa, or the Islands of the Pacific (except New Zealand) (unless permitted to vote under s 41); (v) people who were not natural born or naturalised subjects of the King who had lived in Australia for 6 months continuously; and (vi) people convicted of treason or treachery: Commonwealth Franchise Act 1902 (Cth) ss 3-4.
 Commonwealth Electoral Act 1961 (Cth) s 4.
 Commonwealth Electoral Act 1962 (Cth) s 2.
 Commonwealth Electoral Act 1973 (Cth) ss 3-7.
 The Commonwealth Electoral Act 1918 replaced the Commonwealth Franchise Act 1902.
 Commonwealth Electoral Legislation Amendment Act 1983 (Cth) s 23(e).
 Electoral and Referendum Amendment Act 1995 (Cth) Schedule 1, item 5.
 Aside from prisoners, there are two examples of the franchise being restricted. First, the Commonwealth Electoral (War-time) Act 1917 (Cth) barred those born in enemy territory from voting. The Act operated only for the duration of the First World War and for 6 months afterwards. Second, in 1932, section 30FD of the Crimes Act 1914 (Cth) was enacted, which banned executives or committee members of declared unlawful associations from enrolling to vote.
 Roach at  per Gleeson CJ, adopting the position of McTiernan and Jacobs JJ in McKinlay at 36.
 At 30 June 2006, there were 25,790 prisoners in Australia prisons, of which 20,209 were serving a sentence: Australian Bureau of Statistics, Prisoners in Australia (Report No 4517.0) dated 14 December 2006, 3. While Commonwealth Electoral Act s 93(8)(c) excluded persons who had been convicted of treason or treachery and had not been pardoned from enrolment and voting, this exclusion had negligible practical importance: Graeme Orr, ‘Ballotless and Behind Bars: The Denial of the Franchise to Prisoners’ (1998) 26 Federal Law Review 55, 59.
 It is accepted that citizenship may be a basis for discriminating between those who will and those who will not be permitted to vote: see Roach at  per Gleeson CJ.
 Commonwealth Electoral Act s 93(8)(a) excludes persons who, by reason of being of unsound mind, are incapable understanding the nature and significance of enrolment and voting, from enrolment and voting.
 Orr, above n 20, 69; Harvard Law Review Association, ‘The Disenfranchisement of Ex-Felons: Citizenship, Criminality and “The Purity of the Ballot Box”’ (1989) 102 Harvard Law Review 1300, 1304; Alec C. Ewald, ‘”Civil Death”: The Ideological Paradox of Criminal Disenfranchisement Law in the United States’ (2002) Wisconsin Law Review 1045, 1073. See the acceptance of the social contract theory in the United States in Green v Board of Elections 380 F. 2d 445 (2d Cir, 1967).
 Roach at  per Gleeson CJ.
 Harvard Law Review Association, above n 23, 1306.
 Orr, above n 20, 69.
 Roach at  per joint majority.
 By convention, the leader of the party with the majority of seats in the House of Representatives is entitled to form a government. The leader of that party (the Prime Minister) may recommend to the Governor-General that certain persons be appointed as Ministers of State. A Minister of State must not hold office for longer than three months unless “he” is or becomes a senator of member of the House of Representatives: Constitution s 64.
 Roach at  per Gleeson CJ;  per joint majority, citing McGinty at 270-271 per Brennan CJ. See the meaning of “substantial reason” at  per joint majority.
 Roach at  per joint majority.
 For example, persons convicted of a serious offences, such as electoral fraud or offences of paedophilia, who serve lengthy sentences but are released from prison immediately before an election, would be entitled to vote, whereas persons who are serving a short term of imprisonment, for offences such as failing to pay a fine or begging, on the day of the election would not be entitled to vote.
 35% of prison populations serve sentences of two years or less: Australian Bureau of Statistics, above n 20, 9.
 For example, possessing an offensive weapon or implement is an offence in all jurisdictions except Tasmania. The penalties in other States and Territories are as follows. VIC: 2 years imprisonment (Summary Offence Act 1966 (Vic) s 49D); NSW: maximum penalty is 50 penalty units or imprisonment for 2 years (Summary Offences Act 1988 (NSW) s 11B); SA: maximum penalty of $2,500 or imprisonment for 6 months (Summary Offences Act 1953 (SA) s 15); WA: 3 years imprisonment or a summary conviction penalty of 2 years imprisonment and a fine of $24,000 (Criminal Code (WA)); QLD: 2 years imprisonment (Criminal Code Act 1899 (Qld) s 69); TAS: fine not exceeding 10 penalty units (Police Offences Act 1935 (Tas) s 15C); ACT: fine of $1,000, imprisonment for 6 months or both (Crimes Act 1900 s 380); NT: 200 penalty units or imprisonment for 12 months (Weapons Control Act s 8).
 Roach at  per Gleeson CJ,  per joint majority.
 However, given the joint majority’s extensive consideration of Constitution s 44(ii), which disqualifies any person who has been convicted and under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State for imprisonment for one year or longer, from being chosen or from sitting as a senator or a member of the House of Representatives, it is possible that any disenfranchisement of prisoners serving sentences of less than one year would be unconstitutional.
 Sauvé v Canada (Chief Electoral Officer)  3 SCR 519 (“Sauvé”) by a majority of 5/4 per McLachlin CJ and Lacobucci, Binnie, Arbour and LeBel JJ (L’Heureux-Dube, Gonthier, Major and Bastarache JJ dissenting).
 Hirst v The United Kingdom (No. 2) (2006) 42 EHRR 41 (Application No. 74025/01) (“Hirst”).
 Minister of Home Affairs v National Institute for Crime Prevention and the Reintegration of Offenders  5 BCLR 445 (“Minister of Home Affairs”).
 Canada Elections Act 1985 (Can) s 51(e); Representation of the People Act 1983 (UK) s 3(1); Electoral Act (No 73/1998)
 Canadian Charter of Rights and Freedoms (contained in Canadian Constitution Act 1982) Article 3; European Convention on Human Rights Protocol No 1, Article 3 and South African Constitution Chapter 2, s 19.
 Section 1 of the Canadian Charter of Rights and Freedoms subjects the right to vote in section 3 to “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. In Mathieu-Mohin and Clerfayt v Belgium  EHCR 1 (“Mathieu-Mohin”) at , the European Court of Human Rights stated that the rights in the European Convention on Human Rights were subject to implied limitations. Section 36 of the South African Constitution subjects the rights in the Bill of Rights to such limitations that are “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”.
 Mathieu-Mohin at ; Hirst at - and Minister of Home Affairs at . In Sauvé at , the majority held that the government must demonstrate that the denial of the vote promotes the stated objectives (the rational connection test); that the denial goes no further than reasonably necessary to achieve its objectives (the minimum impairment test) and that the overall benefits of the measure outweigh its negative impact (the proportionate effect test).
 Roach at  per Gleeson CJ, - per joint majority.
 Roach at - per Hayne J.
 Roach at  per Heydon J.
 Constitution ss 41 (now spent), 51(xxxi), 80, 92, 116, and 117.
 ACTV at 135 per Mason CJ. See also Roach per Gleeson CJ at .
 Roach at  per Gleeson CJ.