A constitutionally guaranteed right to vote?

Commenting meaningfully on a High Court decision in which the Justices are yet to explain their reasons presents a distinct challenge for legal bloggers:

THE High Court has ruled that a federal law banning all prisoners from voting is unconstitutional, after an Aboriginal inmate charged it was undemocratic.

The court has yet to release its reasons but ruled that previous laws, which barred anyone serving a jail sentence of three years or longer from voting, remain valid. It is understood the ruling, which was not unanimous, was published yesterday to ensure that short-term prisoners can vote in the coming election. An estimated 8000 prisoners could be affected.

The case was brought by Vickie Lee Roach, 49, who is in prison in Melbourne for causing injury while negligently driving. Her lawyer, Philip Lynch, said yesterday she had called the decision “a great victory for human rights and Aboriginal rights and representative democracy”. …

The court ruled yesterday that the pre-2006 laws, which deny the vote to prisoners serving three years or more, remain valid. Before 2004 the sentence had to be at least five years.

However, we can gain a fairly strong hint about the Court’s likely reasoning from the fact that Roach’s lawyers “argued that the blanket ban was inconsistent with the constitutional requirement that the government be “directly chosen by the people“.”

Although Australia’s Constitution does not contain a bill of rights, and in particular does not contain an express guarantee of the right to vote, section 7 and section 24 both require that the Senate and House of Representatives respectively be “directly chosen by the people”. It was predominantly on the basis of those provisions that the High Court ruled rather controversially for the first time in 1992 that the Constitution impliedly required freedom of political discussion. How (so the argument goes) could Federal Parliament be “directly chosen by the people” in any meaningful sense if Parliament is completely free to enact whatever laws it likes restricting the manner or content of discussion about the political issues on which they cast their votes?

However, that reasoning also logically raises another obvious argument that has not been resolved by the High Court until now (possibly because no government until that of John Howard has had the arrogance or audacity to pass laws denying the vote to people who had previously enjoyed it). How could Federal Parliament be “directly chosen by the people” in any meaningful sense if Parliament is completely free to enact whatever laws it likes defining which of “the people” are allowed to vote and which of them aren’t? And who are “the people”? Is it merely an indeterminate post-modern expression including whoever it suits the government of the day to enfranchise from time to time, for its own political advantage?

As long ago as 1975, there were judicial hints that Constitution sections 7 and 24 might necessitate some sort of implication of a constitutionalised right to vote.

In Attorney-General (Cth); Ex Rel McKinlay v Commonwealth Justices McTiernan and Jacobs suggested that the words “chosen by the people” should be interpreted in the context of the particular facts and circumstances of the time. They observed:

At some point choice by electors could cease to be able to be described as a choice by the people of the Commonwealth. It is a question of degree. It cannot be determined in the abstract. It depends in part upon the common understanding of the time on those who must be eligible to vote before a member can be described as chosen by the people of the Commonwealth. For instance, the long established universal adult suffrage may now be recognized as a fact and as a result it is doubtful whether, subject to the particular provision in s. 30, anything less than this could now be described as a choice by the people.

The challenge in McKinlay concerned electoral gerrymanders and the argument was as to whether the Constitution necessitated “one vote one value”. The Court rejected that proposition, but Justices Jacobs and McTiernan at least believed that the Constitution might properly be seen as enshrining a more general guarantee of the right to vote in federal elections. More recently, in McGinty v Western Australia (1996), the Court again considered and rejected an argument that electoral gerrymanders were unconstitutional, but on that occasion a clear majority of Justices seemed to accept the more general proposition that the Constitution guaranteed “the people” the right to vote.
Chief Justice Sir Gerard Brennan CJ observed:

In this century, the age of legal adulthood has been reduced from 21 to 18 and the legal incapacity of women to vote has been removed. Aborigines, who were once constitutionally disqualified from the franchise, are no longer so disqualified. But age, sex and race are not the only qualifications that have governed an adult’s right to vote. Other qualifications have related to ownership of property and education or a period of residence within the electoral district. Disqualifications still include the status of convicted criminal and mental infirmity or absence from registered address. In view of the fact that the franchise has historically expanded in scope, it is at least arguable that the qualifications of age, sex, race and property which limited the franchise in earlier times could not now be reimposed so as to deprive a citizen of the right to vote.

Justice Toohey said:

¹he essential feature of representative democracy is government by the people through their representatives…In 1900, the popular perception of what this entailed was certainly different to current perceptions. For instance, the franchise did not include all, or even a majority of the population. But according to today’s standards, a system which denied universal adult franchise would fall short of a basic requirement of representative democracy. The point is that, while the essence of representative democracy remains unchanged, the method of giving expression to the concept varies over time and according to changes in society.

Justice Gaudron said:

It follows from what has been said that there may be some feature of the electoral system or, as Stephen J acknowledged in McKinlay, “there may be absent some quality which is regarded as so essential to representative democracy” that it cannot be said that persons elected pursuant to it are “chosen by the people”. The problem is to identify the process by which it may be determined whether or not that is so.

As already indicated, the words “chosen by the people” mandate a democratic electoral system. In that sense, they, like Art I, s 2 of the Constitution of the United States, are a “guarantee of democracy”. It has long been accepted that the Australian Constitution is “broad and general in its terms, intended to apply to the varying conditions which the development of our community must involve”. The words “chosen by the people” are as broad and general as any in the Constitution and, as with other words which are necessarily general, they are to be approached on the basis that, although their essential meaning is unchanged, “their full import and true meaning can often only be appreciated when considered, as the years go on, in relation to the vicissitudes of fact which from time to time emerge”. They must also be interpreted bearing in mind that democracy was not a perfectly developed concept at the time of federation and, perhaps, is not yet so. These considerations necessitate that the content and application of the words “chosen by the people” be determined in the light of developments in democratic standards and not by reference to circumstances as they existed at federation, with the consequence, as McTiernan and Jacobs JJ acknowledged in McKinlay, that what was permitted by s 24 at one time may not be permitted at another.

Notwithstanding the limited nature of the franchise in 1901, present circumstances would not, in my view, permit senators and members of the House of Representatives to be described as “chosen by the people” within the meaning of those words in ss 7 and 24 of the Constitution if the franchise were to be denied to women or to members of a racial minority or to be made subject to a property or educational qualification.

Justice Gummow said:

An even plainer example is the now long-established universal adult suffrage. This has become a characteristic of popular election of senators and members of the House of Representatives which could not be abrogated by reversion to the system which operated in one or more colonies at the time of federation. In my opinion, this is so notwithstanding that ss 8 and 30 of the Constitution, subject to the prevention of plural voting, permitted the qualification of electors to be ascertained in that way, until the federal Parliament otherwise provided.

Although Justice McHugh did not support that line of argument in McGinty, in Langer v Commonwealth (decided only a little later in 1996) he said:

That purpose ² is to ensure representative government by insisting that the Parliament be truly chosen in a democratic election by that vague but emotionally powerful abstraction known as “the people”, a term whose content will change from time to time. In the light of the extension of the franchise during this century, for example, it would not now be possible to find that the members of the House of Representatives were “chosen by the people” if women were excluded from voting or if electors had to have property qualifications before they could vote.

Presumably a majority of the current High Court has now decisively adopted one or other of these lines of reasoning in the Vicki Roach case. Accordingly, it may well be that the significance of the decision is much wider than just invalidating a law denying the vote to a few thousand short-term prisoners. It seems likely that the Court has recognised for the first time that Australia’s Constitution actually guarantees “the people” the right to vote in federal elections.

Moreover, depending on the majority’s detailed reasoning and how they managed to distinguish between short-term and long-term prisoners, the Roach decision might also throw in doubt the Howard government’s other recent and even more outrageously undemocratic legislative disenfranchisement gambit, whereby electoral rolls are now to be closed on the day an election is announced. To understand why, you need to know that, according to the High Court’s current jurisprudence, no constitutional right or freedom is absolute (hardly an unreasonable proposition). The implied constitutional freedom of political speech, for example, does not prevent legislation making it unlawful to defame political candidates or to advocate political terrorism, even though both are clearly forms of political speech. Parliaments may enact laws for ends within power, even though they may incidentally infringe or “burden” a constitutionally protected right or freedom, as long as the law is reasonably capable of being seen as “appropriate and adapted” or “proportionate” to that end within power. It is likely that the Court has concluded that a law disenfranchising short-term prisoners who have committed relatively minor crimes is not “appropriate and adapted” to any legitimate end within power, whereas denying the vote to prisoners convicted of more serious crimes is “appropriate and adapted”.

If that is the reasoning the Court has followed, it may well now be possible to mount a strong argument that closing the rolls on the day an election is announced is also not capable of being seen as appropriate and adapted to an end within power. That is especially so given that I understand that the Australian Electoral Commission has indicated that the Howard government’s move was not necessitated by any inability or inconvenience it had experienced in processing enrolments lodged after the announcement of an election. The AEC has coped perfectly adequately with that task for many years, indeed it provides it with an invaluable opportunity to bring the rolls up to date, a task which at non-election times mostly meets with public indifference and non-cooperation. The Howard government’s sudden death roll closure electoral “reform” is motivated solely by cynical calculation of its own immediate political advantage, and not for any reason connected with effective or democratic administration of Australia’s electoral laws.

PS – A little gamble for High Court watchers. Who do you reckon are the majority Justices in the Vicki Lee Roach case? My guess? Gleeson CJ and Gummow, Kirby and Hayne JJ. I can’t see either Callinan or Heydon JJ signing onto any extension whatever of implied constitutional rights, and I don’t know enough about Crennan J to make an informed guess on which way she would be likely to jump (so it could conceivably be her rather than, or as well as, Ken Hayne). (Update – having checked the transcript, you can scratch Callinan J because he didn’t sit).

PPS – Here is an extract from the transcript in Roach which suggests that my speculation above about the likely majority reasoning is probably on the money:

MR MERKEL: Your Honour, our answer is that if section 30 were looked at alone and interpreted by reference to the transitional role, there could be that conclusion that qualification in that transitional sense was to import disqualification at the time, but we say when the function of section 30 is looked at in the context of sections 7 and 24, to give the same power to qualify and disqualify without reference to sections 7 and 24 is to fundamentally give Parliament a power which is inconsistent with what this Court has said would be the prescription of representative government and responsible government.

In particular, it would give, on our learned friends approach which would adopt what is being suggested, an untrammelled power for Parliament to manipulate the elective system by the process of qualification and disqualification. We say that the Constitution needs to have sturdier protection of the representative democracy than a power of Parliament to undermine it in that way. We say you have to go to sections 7 and 24 and the role those sections play in looking at what section 30 was intended to do, not at Federation but subsequently.

GLEESON CJ: But you do not question Parliaments power to disqualify people from voting if they become of unsound mind, do you?

MR MERKEL: No, your Honour. We accept that is probably at the heart of the power of choosing the representative but to disqualify for reasons I think the most obvious example would be manipulation of the age maximum that your Honour had mentioned in Mulholland, or minimum, for the purpose of entrenching power according to the Commonwealths untrammelled view of section 30 that is entirely permissible as long as the chunk that you have taken out of the population is not so great that it is no longer an election by the people. We say that is precisely the kind of limitation which should be and is necessary to be imported to give effect to the constitutional role of sections 7 and 24.

KIRBY J: So the challenge is to have a theory of the constitutional sections that reconciles the acceptance that you give that you cannot qualify if you are under 18, or some other age, that you can be disqualified for treason and treachery, but that you cannot be disqualified because you are a woman or because you are an Aboriginal or of another race and to find something in the sections that supports the lines that you are drawing and then say, Well, prisoners fall on the side of the line with women and Aboriginals and other citizens who are just part of the generality of citizenship.

MR MERKEL: Yes, your Honour.

GLEESON CJ: It is slightly more complicated because I think your argument is that you cannot now disqualify people because they are Aboriginals or women?

MR MERKEL: Yes, your Honour.

GLEESON CJ: Although you could once.

MR MERKEL: Yes. Our argument is premised on the acceptance by a number of members of the Court that one cannot wind the clock back in terms of the disqualification power that Parliament has on the same basis as one may have been able to wind the clock forward on the qualification power. They are not reverse sides in terms of power of the same coin. If it were otherwise then plainly one could disqualify any groups, subject only to the Commonwealths criterion of some quantitative question that if the group is so large it is no longer a popular election or a choice by the people. We say that that would be fundamentally inconsistent with the whole reasoning that this Court has undertaken in terms of the political communication cases.

1. T[↩]
2. of Constitution s24[↩]