Orr, Graeme --- "Constitutionalising the Franchise and the Status Quo: The High Court on Prisoner Voting Rights" [2011] UNSWLRS 59

Last Updated: 23 December 2011

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

Professor Graeme Orr, Law School, University of Queensland

This paper is available for download at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1976140

Citation

This paper was presented at the 2008 Gilbert and Tobin Centre of Public Law Constitutional Law Conference. This paper may also be referenced as [2011] UNSWLRS 59.

Abstract

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.

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. 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.

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.

The High Court of Australia was invited into this contentious fray by Vicki Roach. 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. 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.

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.