Symposium: Protecting Human Rights in Australia: Challenges and Strategies

Prisoner voting rights

Lisa Hill, University of Adelaide

Unlike other comparable political systems, Australia lacks a bill of rights. Australia never had a strong rights culture understood in the classical liberal sense but it seems to have compensated for this by focusing on ‘electoral fairness’ (Galligan 1994, p. 59). We have long been respected as a leader in democratic practice and a pioneer of highly successful strategies to maximise electoral inclusion with the result that Australia now enjoys one of the highest and most socially even levels of voter turnout in the world. Nevertheless, despite the fact that most of its members are legal citizens, one of the most marginalised and powerless groups in Australia continues to be excluded from the franchise: prisoners. This exclusion—and attempts here and elsewhere to address it—underline the power and value of entrenched political rights.

THE EXCLUSION OF PRISONERS

Australia flouts its commitments by legally preventing prisoners from voting.

Australia is a signatory to the International Covenant on Civil and Political Rights, which, among other things, stipulates that ‘every adult citizen shall have the right to vote without distinction and regardless of their circumstances’. Yet we flout this commitment by legally preventing prisoners from voting. This exclusion is a longstanding one although the extent of the exclusion has varied over time. At federation, the Commonwealth Franchise Act, 1902 denied the franchise to vote to anyone ‘attainted of treason, or who had been convicted and is under sentence or subject to be sentenced for any offence … punishable by imprisonment for one year or longer’ (Commonwealth Franchise Act 1902, 44.II.4). In 1983 this disqualification was relaxed and prisoners serving sentences of between one and five years were no longer disentitled. A further softening occurred in 1995 when the disenfranchisement was limited to those serving a sentence of five years or longer. In 2004 restrictions were tightened so that prisoners serving a sentence of three years or more were disqualified. In 2006 restrictions were tightened still further so that all prisoners serving a sentence were disentitled to vote in Senate and House of Representative elections. This legislation rendered prisoners’ entitlement to vote even more restrictive than it had been in 1902. Unexpectedly, in August 2007 the High Court invalidated this blanket ban on prisoner voting in Roach v. Electoral Commissioner. Although a majority of the High Court overturned the complete ban, significantly, it upheld the 2004 law that restricted voting to those prisoners serving a sentence of three or more years. In effect, it accepted that the Constitution permits the exclusion of prisoners from the franchise (for a fuller discussion see Koch & Hill 2008; Orr & Williams 2009).

Table 1: Length of sentence that disqualifies
prisoners from voting by jurisdiction
Jurisdiction Length of sentence
Commonwealth 3 years or more
New South Wales 1 year or more
Victoria 5 years or more
Queensland Any prison sentence
Western Australia 1 year or more
South Australia No restriction
Tasmania 3 years or more
ACT No restriction
NT 3 years or more

Currently, the following disqualifications apply Australia-wide: for voting in federal elections, the threshold for exclusion is a prison sentence of three years or more; for voting in State and Territory elections, in South Australia and the Australian Capital Territory there is no disqualification, whereas in Queensland any period of imprisonment attracts disqualification. For Tasmania and the Northern Territory, a three year sentence is the threshold, in Victoria a five year sentence, while in New South Wales and Western Australia it is one year (see table 1). This means, for example, that whereas a prisoner serving a sentence of over three years in South Australia may vote in state elections, s/he will not be able to vote in Federal elections; on the other hand, a New South Wales prisoner serving a sentence of, say, two years will be allowed to vote in federal but not state elections.

It is worth nothing that voting disqualification can endure even after sentences have been completed and voting rights restored. Once prisoners are struck off the roll there are a number of obstacles to their re-enrolment which renders their transitory legal disqualification effectively permanent. For example, ‘many ex-prisoners are homeless and cannot establish a stable address for the minimum one month required’ (Fitzgerald 2005, p. 6). It is also often the case that ex-prisoners avoid enrolling to prevent themselves and their families from being located. Another obstacle to re-enrolment lies in the fact that ‘[e]videntiary requirements … or the dependence upon witnesses who may be in positions of power’ (Fitzgerald 2005, p. 7) provide a powerful disincentive to those whose experiences with authority figures have been less than positive. Also worth noting is the fact that disenfranchisement affects disproportionately arguably the most powerless subset of Australian citizens: Aboriginal prisoners (the incarceration rate of Aboriginal people is sixteen times the national average).

JUSTIFICATIONS?

Although human rights law allows some restrictions on the right to vote, such restrictions must be reasonable (Human Rights and Equal Opportunity Commission 2007). A number of rationales have been advanced by Australian parliamentarians to justify stripping prisoners of the right to vote. As we shall see, these sorts justifications do not hold up well when tested in courts, especially in jurisdictions armed with charters of codified rights. They also fail to square with our international treaty obligations. This suggests that Australia’s historical faith in parliament to provide adequate protection for rights might be misplaced.

Legislators say
that prisoner disenfranchisement is popular among voters.

One of the most common justifications offered by legislators is that prisoner disenfranchisement is popular among voters. For example, in 2000 the Joint Standing Committee on Electoral Matters (2000, p. 169) declined to recommend a softening of franchise restrictions because ‘such a move would not receive wide community support’. For Nick Minchin any ‘pub test’ would find that the average law-abiding citizen resents the voting rights of prisoners’ (Hughes and Costar 2005, p. 3). While this may be true, it does not constitute ‘reasonable’ grounds for disenfranchisement. Such was the reasoning of the South African Constitutional Court in Minister of Home Affairs v NICRO and Others 2005 (NICRO stands for the National Institute for Crime Prevention and the Re-Integration of Offenders). In defending voting restrictions the South African government told the Court that such a policy was necessary to avoid any public perception that the government might be soft on crime. The majority of the Court responded that ‘[i]t could hardly be suggested that the government is entitled to disenfranchise prisoners in order to enhance its image’ (cited in Koch & Hill 2008, p. 221). As Orr and Williams (2009, p. 137) rightly note, depriving citizens of their status as ‘people’ ‘for a purpose as fundamental as representative elections requires more than just an appeal to popular sentiment’ (Orr & Williams 2009, p. 137).

Another common rationale for prisoner disenfranchisement is the belief that crime represents a tainting of the political process. Senator Eric Abetz (2005, p. 64) suggests that people who have ‘so offended against society’s laws’ should not have a ‘voice in the future direction of that society’. A similar argument was made by the Canadian government in the case of Sauvé v Canada (Chief Electoral Officer) 2002 which concerned the constitutionality of the Canadian law disenfranchising prisoners serving sentences of two years or more. The government argued that permitting inmates to vote ‘demeans’ the political system. The Court pointed out that ‘prisoners have long voted, [in Canada] and abroad … without apparent adverse effect to the political process, the prison population or society as a whole’. Chief Justice McLachlin dismissed the ‘idea that certain classes of people are not morally fit or morally worthy to vote’ as ‘ancient and obsolete’, stemming from the concept of ‘civil death’ (Koch & Hill 2008, p. 221).

‘Civil death’ is a concept that stretches back to antiquity. It was associated with extremely arbitrary forms of rule whereby loss of citizenship was punitive, personally, economically and socially devastating and expressly intended as a form of humiliation and degradation (Hill 2000, p. 205). In contemporary Australia—a modern liberal democratic state—disenfranchisement is still used to humiliate and stigmatise prisoners. This was acknowledged by Justices Gummow, Kirby and Crennan in Roach v Electoral Commissioner, 2007 which challenged the 2006 legislation that excluded all prisoners from voting (Koch & Hill 2008, p. 222). Though it may be possible to defend loss of citizenship for the crimes of ‘treason’, ‘treachery’ or electoral fraud within a modern, liberal democratic framework, it is more difficult to justify the loss of citizenship for the kinds of crimes that usually land people in jail (for example, property crimes and drug offences). It is hard to see how the deprivation of a legal status that is intrinsic to liberal-democratic personhood is proportionate to the severity of these kinds of crimes. Does the commission of a property crime, for example, disqualify a person from making rational choices at election time? Unlike other categories of persons who are prevented from voting—for example mentally disabled people—prisoners are, by definition, mentally fit to vote; if they weren’t they couldn’t have been convicted in the first place (Fitzgerald & Zdenowski 1987, p. 39).

‘Civil death’ is a concept that stretches back to antiquity.

Relatedly, justification for prisoner disenfranchisement is often framed in terms of an alleged social contract: on this view, committing a crime serious enough to attract a prison sentence automatically triggers the forfeiture of a person’s right to be considered part of ‘the people’ (see, for example, Abetz 2006, p. 89). The Canadian Supreme Court in Sauvé v Canada disagreed with this kind of reasoning. Although it accepted that the social contract required citizens to obey the law, failure to do so does not nullify a citizen’s continued membership of the political community. It also emphasised that ‘the right of the state to punish and the obligation of the criminal to accept punishment’ implies an acceptance of the criminal as a bearer of ‘rights and responsibilities’ (Koch & Hill 2008, p. 223). If prisoners are both persons (that is, rights-bearers) and citizens, how reasonable is their disenfranchisement (assuming that their crimes do not include treason, treachery or electoral fraud)? After all, it is loss of liberty that is ‘the essential punishment’; prisoners still retain all their other rights, save for those whose limitation is required in order to maintain security (New South Wales 1978).

Another common rationale for prisoner disenfranchisement is that the deprivation of the right to vote is part of the punishment for crimes. Wilson Tuckey MP (2004, p. 32614) has decreed that: ‘Of course we put people in jail to punish them. And of course if someone has beaten up some old lady they have forgone their right to vote’. This conception of both the purpose of incarceration and the acceptability of disenfranchisement conflicts with Australia’s international treaty obligations. Article 10(3) of the International Covenant on Civil and Political Rights —which Australia ratified in 1980—rules out punishment as the primary purpose of imprisonment and stipulates that the ‘essential aim’ is ‘reformation and social rehabilitation’. The United Nations Human Rights Committee has said that it ‘fails to discern the justification’ for blanket prisoner disenfranchisement and considers it an unwarranted and additional punishment that contributes nothing ‘towards the prisoner’s reformation and rehabilitation, contrary to article 10(3) in conjunction with article 25 of the Covenant’ (Human Rights Committee 2001).

Politicians are also fond of asserting that disenfranchisement acts as a ‘disincentive to crime’ (see for example, Joint Standing Committee on Electoral Matters 1997, p. 48; Nairn 1996, p. 192). This seems doubtful given that the much harsher penalty of imprisonment fails to prevent recidivism (Orr 1998, p. 69). Aside from its negligible deterrence value, it is highly unlikely that disenfranchisement has any rehabilitative value; quite the opposite. According to the majority judgment of the Canadian Supreme Court in Sauvé v Canada the government was misguided if it thought it was conveying an ‘educative message’ to prisoners by depriving them of a voice in self-government and a means by which to learn ‘democratic values and social responsibility’ (Koch & Hill 2008, p. 222). Similarly, in Hirst v United Kingdom (No. 2), 2005 (concerning whether the disenfranchisement of UK prisoners violated Article 3 of the European Convention on Human Rights) the European Court of Human Rights held that there was no evidence that disenfranchisement had a deterrent effect and that it was ‘more likely to undermine the authority of the law than enhance it’ (Koch & Hill 2008, p. 223).

CONCLUSION

It is curious that many legislators advocate blanket disenfranchisement when the standards that apply to legislators themselves are much lower. To my knowledge, no parliamentarian has ever sought to toughen section 44(ii) of the Australian Constitution that expressly allows a person sentenced to imprisonment of less than a year to stand for Parliament.

The standards that apply to legislators themselves are much lower.

Being able to vote is effectively the right to have rights; it is the sovereign right that protects all other rights and its enjoyment signifies a person’s membership of the socio-political community. Whether those categories of prisoners currently disqualified in Australia will ever be enfranchised is debatable considering that, Australia—unlike Canada, South Africa and Britain—offers no solid guarantee of the franchise from which to mount a case. Australia lacks a Constitutional guarantee of voting rights beyond what has been implied in sections 7 and 24 (the High Court has found an implied right to vote in the provision contained in both sections that parliament be ‘chosen by the people’), therefore the right of prisoners to vote largely falls to the discretion of parliaments who are generally far from sympathetic to their cause.

Some might see the recent Roach decision as a sign that reform is possible without codified rights. Any such optimism is probably unjustified. While the High Court’s decision in Roach is a welcome one, the case still ‘left the door open for the legislature to restrict the prisoner franchise drastically’ (Koch & Hill 2008, p. 224). The decision provided no clarity on the constitutionality of further restrictions on prisoners’ voting rights; neither did it ‘establish a free standing right’ to vote but only ‘a partial shield’ against further infringements of the federal franchise (Orr & Williams 2009, pp. 132–133, 138).

The best means for guaranteed voting rights is their entrenchment in a bill of rights so as to ensure that any new legislation is compatible with existing rights and to protect such rights from erosion (Norberry 2003, p. 99). Charters of rights are not cure-alls but they clearly have benefits. Australian electoral rights reformers need more codified text with which to work; at present, sections 7 and 24 are being made to carry far too heavy a burden. Cases like Sauvé v Canada, Minister of Home Affairs v NICRO and Others and Hirst v United Kingdom (No. 2) show just how far prisoner enfranchisers can get when they have entrenched rights with which to work.

REFERENCES

Abetz, E. 2005, Commonwealth, Parliamentary Debates, Senate, 6 October 2005.

Abetz, E. 2006, Commonwealth, Parliamentary Debates, Senate, 19 June 2006.

Fitzgerald J. & Zdenkowski, G. 1987, ‘Voting rights of convicted persons’, Criminal Law Journal, vol. 11, no. 1, pp. 11–39.

Fitzgerald, S. 2005, Ending felon disenfranchisement, paper published by the Democratic Audit of Australia, Australian National University [Online], Available: http://arts.anu.edu.au/democraticaudit/categories/felon_disenfrm.htm [2009, Oct 28].

Galligan, B. 1994, ‘Australia’s political culture and institutional design’, in Towards and Australian Bill of Rights, ed. P. Alston, Centre for International and Public Law, Canberra.

Hill, L. 2000, ‘Precarious persons: Disenfranchising Australian prisoners’, Australian Journal of Social Issues, vol. 35, no. 3, pp. 203–213.

Hughes C. & Costar, B. 2005, ‘Proposed changes could deny hundreds of thousands of Australians a vote’, The Age, 3 November.

Human Rights and Equal Opportunity Commission 2000, The Right to Vote Is Not Enjoyed Equally by All Australians [Online], Available: http://www.humanrights.gov.au/human_rights/vote/index.html [2009, Oct 28].

Human Rights Committee 2001, International Covenant on Civil and Political Rights, United Nations, Concluding Observations of the Human Rights Committee: United Kingdom of Great Britain and Northern Ireland, CCPR/CO/73/UK; CCPR/CO/73/UKOT [Online], Available: http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CCPR.CO.73.UK%3BCCPR.CO.73.UKOT.En [2009, Oct 28].

Joint Standing Committee on Electoral Matters 1997, Report of the Inquiry into the Conduct of the 1996 Federal Election and Matters Related Thereto, Parliament of Australia, Canberra [Online], Available: http://www.aph.gov.au/House/committee/em/elec/elec.pdf [2009, Oct 28].

Joint Standing Committee on Electoral Matters 2000, Report of the Inquiry into the Conduct of the 1998 Federal Election and Matters Related Thereto, Parliament of Australia, Canberra [Online], Available: http://www.aph.gov.au/House/committee/em/elect98/wholereport.pdf [2009, Oct 27]

Koch, C. & Hill, L. 2008, ‘The ballot behind bars after Roach: Why disenfranchise prisoners?’, Alternative Law Review, vol. 33, no. 4, pp. 220–224.

Nairn, G. 1996, Transcript of proceedings, Committee Hearing on the Conduct of the 1996 Federal Election, Joint Standing Committee on Electoral Matters, Parliament of Australia, Canberra, 4 October.

New South Wales 1978, Report of the Royal Commission into New South Wales Prisons, Justice J.F. Nagle, Royal Commissioner, Government Printer, Sydney.

Norberry, J. 2003, ‘The evolution of the commonwealth franchise: Tales of inclusion and exclusion’, in Realising Democracy. Electoral Law in Australia, eds G. Orr, B. Mercurio and G. Williams, Federation Press, Sydney.

Orr, G. 1999, ‘“Ballotless and behind bars”: The denial of the franchise to prisoners’, Federal Law Review, vol. 26, no. 1, pp. 56–82.

Orr, G. & Williams, G. 2009, ‘The people’s choice: The prisoner franchise and the constitutional protection of voting rights in Australia’, Election Law Journal, vol. 8, no. 2, pp. 123–139.

Tuckey, W. 2004, Hansard, House of Representatives, Parliament of Australia, 10 August.

Twomey, A. 2000, ‘The federal constitutional right to vote in Australia’, Federal Law Review, vol. 28, no. 1, pp. 125–153.

Lisa Hill is Professor of Politics at the University of Adelaide. Her most recent publications include: The Politics of Human Rights in Australia (with Louise Chappell and John Chesterman, Cambridge University Press 2009) and British International Thinkers from Hobbes to Namier (with Ian Hall, Palgrave-Macmillan 2009).