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Abstract
Drawing on and combining political science and legal frameworks, this article explores the validity of disenfranchising Australian prisoners. The authors examine and critically assess the various arguments used in Australia by both legislators and High Court Justices to defend the practice of disenfranchisement. Such arguments are assessed against liberal democratic principles as well as jurisprudence arising from cases in settings that provide protection for electoral rights in formal charters of rights. The authors show that in settings that entrench voting rights in the Constitution, any infringement attracts strict scrutiny from the courts. Courts insist that any abridgement of voting rights should serve a legitimate government purpose and be proportionate to that purpose. The arguments made for prisoner disenfranchisement by legislators in the Australian context invariably fail both parts of this test.
Notes
Lisa Hill is Professor of Politics in the School of History and Politics at the University of Adelaide. She is a political theorist and intellectual historian with an additional interest in electoral studies. Her electoral studies work has appeared in Political Studies, Journal of Theoretical Politics, and British Journal of Political Science. Cornelia Koch is a Senior Lecturer at the Adelaide Law School, the University of Adelaide. Her research interests are in the areas of human rights, constitutional law, comparative constitutional law, comparative law, and European Union law. She is the co-author of a book on Australian constitutional law and her work has been published in Australia and abroad.
1 Evans v Cornman (1970) 398 US 419, 422. See also Reynolds v Sims (1964) 377 US 533; Wesberry v Sanders (1964) 376 US 1, 17; Bush v Gore (2000) 531 US 98, 104.
2 McLaughlin v City of Canton (1995) 947 F. Supp. 954, 971 (S.S. Miss).
3 August v The Electoral Commission 1999 (3) SA 1 (CC) [17].
4The Constitution is not entirely devoid of references to voting entitlements. Section 41 contains an express but limited form of protection in providing that: ‘No adult person who has or acquires the right to vote at elections for the … House of the Parliament of a State shall … be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth.’
5A remedy exists at the international level, in that citizens can submit a complaint to the United Nations' Human Rights Committee against Australia if they believe that the ICCPR has been infringed. Even if the Committee finds that an infringement has occurred, however, it cannot enforce the Covenant. This international remedy is therefore rather weak.
6This term is used in Canadian constitutional law, see, for example, Sauvé v Canada (Chief Electoral Officer) 2002 3 SCR 519 [7].
7This is why prisoner disenfranchisement measures in Australian courts only fail both tests on rare occasions. In Roach the majority would most likely have upheld disenfranchisement for prisoners serving sentences of six months or one year, and clearly upheld the three-year rule. Similarly, in Rowe, the pre-2006 regime (of having a grace period of seven days after the issuing of the writs to enrol/change enrolment) was also upheld. These regimes are regarded as meeting both tests by the Australian courts, while they would have difficulty meeting them under charters of rights.
8For an explanation of this difference see Gleeson CJ in Roach v Electoral Commissioner (2007) 239 ALR 1 at 7–8. It is interesting to note, however, that Justice Kiefel, the most recent appointee to the High Court, seems inclined to scrutinise Parliament more strongly and perhaps to adopt something akin to a minimal impairment requirement in Australia. See Rowe v Electoral Commissioner 2010 HCA 46 (15 December 2010), [424]–[489] (per Kiefel J).
9(2007) 239 ALR 1.
10 Roach v Electoral Commissioner (2007) 239 ALR 1.
11[2010] HCA 204–07.
12See, for example, Attorney-General (Cth); Ex Rel McKinlay v Commonwealth (1975) 135 CLR 1, 36 (per McTiernan and Jacobs JJ), at 69 (per Murphy J); Nationwide News v Wills (1992) 177 CLR 1, 72 (per Deane and Toohey JJ); McGinty v Western Australia (1996) 186 CLR 140, 166 (per Brennan CJ), 201 (per Toohey J), 221–2 (per Gaudron J), 286–7 (per Gummow J); Langer v Commonwealth (1996) 186 CLR 302, 342.
13 Roach v Electoral Commissioner (2007) 239 ALR 1, 4–5.
14 Roach v Electoral Commissioner (2007) 239 ALR 1, 24–5.
15For a detailed discussion of the Roach case see Orr and Williams (Citation2009, 130–3). The principles developed in Roach were confirmed by a majority in the most recent High Court case on electoral matters, Rowe v Electoral Commissioner 2010 HCA 46 (15 December 2010), in which a majority of the High Court struck down legislation permitting the closure of the electoral roll on the day after election writs are issued. Notably, like Gleeson CJ in Roach, Crennan J accepted in Rowe that the Constitution protects an implied right to vote, [368] (per Crennan J).
16 Sauvé v Canada (Chief Electoral Officer) 2002 3 SCR 519.
17 Sauvé v Canada (Chief Electoral Officer) 2002 3 SCR 519 [20]–[53].
18 Sauvé v Canada (Chief Electoral Officer) 2002 3 SCR 519 [54]–[59].
19 Minister of Home Affairs v National Institute for Crime Prevention and the Re-Integration of Offenders (NICRO) 2005 (3) SA 280 (CC).
20Application no. 74025/01, ECHR 2005–IX (Grand Chamber, 2nd instance).
21Orr (Citation1998) has previously explored some of the arguments addressed below, although not in relation to how they would fare in comparable settings that provide more secure rights protection.
22 Minister of Home Affairs v National Institute for Crime Prevention and the Re-Integration of Offenders (NICRO) 2005 (3) SA 280 (CC).
23 Minister of Home Affairs v National Institute for Crime Prevention and the Re-Integration of Offenders (NICRO) 2005 (3) SA 280 (CC) [55].
24 Minister of Home Affairs v National Institute for Crime Prevention and the Re-Integration of Offenders (NICRO) 2005 (3) SA 280 (CC) [56].
25No figures are available for Australian attitudes towards this issue but a recent survey of British voters found that 76% are against and only 17% are for granting prisoners rights (Kettle Citation2011).
26Commonwealth, Parliamentary Debates, House of Representatives, 10 August 2004, 32 606 (Donald Randall).
27 Sauvé v Canada (Chief Electoral Officer) 2002 3 SCR 519.
28 Sauvé v Canada (Chief Electoral Officer) 2002 3 SCR 519 [29].
29 Sauvé v Canada (Chief Electoral Officer) 2002 3 SCR 519 [21].
30 Harvard Law Review (Citation1989, 1300, 1307–8), citing Washington v State, 75, Ala, 582, 585 (1984).
31Commonwealth, Parliamentary Debates, Senate, 6 October 2005, 64 (Eric Abetz).
32‘Because felons are drawn disproportionately from the ranks of racial minorities and the poor … felon disenfranchisements played a decisive role’ in some US elections (Uggen and Manza Citation2002, 777). This is why the majority of voting rights litigation in the last 40 years or so has invoked arguments about ‘group-based dilution’ (Karlan Citation2004, 1156–62).
33Put simply, the ‘all affected interests’ principle holds that ‘everyone who is affected by the decisions of a government should have the right to participate in that government’ (Dahl Citation1970, 64).
34This argument still holds even when the votes of prisoners do not decisively affect outcomes.
35United Nations High Commissioner for Refugees, General Comment 25.
36United Nations Human Rights Committee, General Comment 25, paragraphs 4, 10; AHRC 2010.
37See Dunn v Blumstein (1972) 405 US 330, 343; Karlan Citation2004, 1152 and 1155.
38See Rep. No. 94–295 (1975) at 23–4, reprinted in 1975 USCCAN 774 and cited in Karlan Citation2004, 1152.
39See 42 USC 1973aa (1994), cited in Karlan Citation2004, 1152.
40 Sauvé v Canada (Chief Electoral Officer) 2002 3 SCR 519.
41 Sauvé v Canada (Chief Electoral Officer) 2002 3 SCR 519 [43].
42As Justice Michael Kirby noted in the context of defending the rights of terrorism suspects (Kirby Citation2001, 263).
43For example, in the US ‘most disenfranchised felons have not been convicted of a major crime. Murderers and rapists make up about 4% of the felons convicted in recent years. One third have been convicted of drug offences’ (Manza and Uggen Citation2006, 8).
44Arguably though, it could point to a ‘lack of a sense of justice’ (Beckman Citation2009, 144–5). By the same token, we should not assume that such a lack is permanent since it denies the possibility for rehabilitation. Vicki Lee Roach has earned an MA in writing and is currently enrolled as a PhD student at Swinburne University of Technology while Rick Sauvé earned a degree in psychology and BA and Masters degrees in criminology while incarcerated. Thanks to Brian Costar for suggesting this point.
45Senator Nick Minchin cited in the Report on the Provisions of the Electoral and Referendum Amendment Bill (No. 2) 1998 (1998). Emphasis added.
46Commonwealth, Parliamentary Debates, Senate, 19 June 2006, 89 (Eric Abetz, emphasis added). See also Commonwealth, Parliamentary Debates, Senate, 12 August 2004, 26 575 (Helen Coonan) and Commonwealth, Parliamentary Debates, Senate, 12 August 2004, 26 328 (Judith Troeth).
47 Roach (2007) 239 ALR 1, 6–7 [12].
48 Roach (2007) 239 ALR 1, 9 [19].
49 Sauvé v Canada (Chief Electoral Officer) 2002 3 SCR 519 [47].
50For example, many ‘ex-prisoners are reluctant to enrol because the electoral roll can be used to locate them or their families’. Further, ‘[e]videntiary requirements or dependence upon witnesses who may be in positions of power’ in order to re-enrol are other likely obstacles (Fitzgerald Citation2005, 6–7).
51The term ‘privilege’ is used here in the vernacular rather than legal, Hohfeldian sense.
52Senate Hansard, 19 June 2006, 103. Emphasis added.
53Senator Nick Minchin cited in the Report on the Provisions of the Electoral and Referendum Amendment Bill (No. 2) 1998 (1998). Emphasis added.
54It should be noted that courts, particularly Australian ones, are averse to the notion of civil death. For a useful discussion of the concept of ‘civil death’ see Orr Citation1998, 66–68.
55 Hirst v United Kingdom (No. 2) [GC], no. 74025/01, ECHR 2005-IX (Grand Chamber, 2nd instance).
56The Grand Chamber concluded that section 3(1) of the 1983 Act is incompatible with Article 3 of the First Protocol to the European Convention on Human Rights. It affirmed that Article 3 guarantees the right to vote as an individual right (at [56]–[58]) and that, although limitations may be imposed on Article 3, they should not impair the ‘very essence’ of those rights, should pursue a legitimate aim, and must be proportionate to that aim (at [62]). The Grand Chamber determined that blanket disenfranchisement was disproportionate.
57 Hirst v United Kingdom (No. 2) [GC], no. 74025/01, ECHR 2005-IX (Grand Chamber, 2nd instance) [43], [59]. For the text of the Secretary of State's letter, see Hirst v United Kingdom (No 2), App. No. 74025/01, 38 Eur. H.R. Rep. 40 (2004) (Chamber Opinion) [20] at URL: <http://www.echr.ce.int/eng>.
58 Hirst v United Kingdom (No. 2) [GC], no. 74025/01, ECHR 2005-IX (Grand Chamber, 2nd instance) [69].
59Transcript of Proceedings, Committee Hearing on the Conduct of the 1996 Federal Election (Parliament of Australia, Joint Standing Committee on Electoral Matters, 4 October 1996), 192.
60 Minister of Home Affairs v National Institute for Crime Prevention and the Re-Integration of Offenders (NICRO) 2005 (3) SA 280 (CC) [116], following the dissenting judgment in Sauvé v Canada (Chief Electoral Officer) 2002 3 SCR 519 [103], [119]–[121] (Gonthier J).
61 Hirst v United Kingdom (No. 2) [GC], no. 74025/01, ECHR 2005-IX, [77] (Grand Chamber, 2nd instance).
62 Hirst v United Kingdom (No. 2), no. 74025/01, [45] (Chamber, 1st instance).
63See, for example, Chin and Holmes (Citation2002, 700); Goodall v United States, 759, A.2d 1077, 1081 (DC 2000).
64 Sauvé v Canada (Chief Electoral Officer) 2002 3 SCR 519 [32].
65 Sauvé v Canada (Chief Electoral Officer) 2002 3 SCR 519 [30].
66 Sauvé v Canada (Chief Electoral Officer) 2002 3 SCR 519 [38].
67 Hirst v United Kingdom (No. 2), no. 74025/01, [42], [45]–[47] (Chamber, 1st instance). The Grand Chamber of the Court, on appeal, did not go as far as the Chamber at first instance, but said that ‘whatever doubt there may be as to the efficacy of achieving these aims through a bar on voting, the Court finds no reason … to exclude these aims as untenable or incompatible per se with the right [to vote]’. Hirst v United Kingdom (No. 2) [GC], no. 74025/01, ECHR 2005-IX, [75] (Grand Chamber, 2nd instance).
68Commonwealth, Parliamentary Debates, House of Representatives, 10 August 2004, 32 614, (Wilson Tuckey). The government of the United Kingdom also identified the aim of the law challenged in Hirst as the conferral of additional punishment when introducing the legislation into Parliament; see Hirst v United Kingdom (No. 2) [GC], no. 74025/01, ECHR 2005-IX, [74] (Grand Chamber, 2nd instance).
69Human Rights Committee, 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, (2001), [10].
70 Hirst v United Kingdom (No. 2), no. 74025/01, [44] (Chamber, 1st instance).
71Orr and Williams (Citation2009) also defend a ‘strict scrutiny’ approach to prisoner's voting rights.
72As Powers (Citation2006, 251) has argued with respect to the UK legislature whose actions may be called to account in the European Court of Human Rights. A further advantage of charters of rights is that they are more accessible to the average citizen than other types of law. Rick Sauvé had only limited knowledge of Canadian law but it was relatively easy for him to secure a copy of – and understand the principles laid down in – the Canadian Charter of Rights and Freedoms. According to Sauvé, he noted that section 3 guaranteed ‘every citizen’ the right to vote. Reasoning correctly that he was ‘still a citizen’ he decided to pursue the case (Sauvé Citation2002) and was ultimately successful in securing suffrage rights, not only for himself, but for every other incarcerated Canadian.