Australians have constitutionally guaranteed voting rights

Well, the speculation in my previous post was essentially spot-on. The High Court has ruled in Roach v Electoral Commissioner (reasons for decision published late yesterday) that Australians have a constitutionally guaranteed right to vote in federal elections, flowing from sections 7 and 24 of the Constitution which both provide for direct election by “the people” for the Senate and House of Representatives respectively.

The reasoning is very similar to that in the “political communication” decisions of 1992, namely that popular election by “the people” requires not only that “the people” have a right to free communication concerning issues that may affect their vote but also that “the people” actually have a constitutionally assured right to vote. Moreover, the expression “the people” doesn’t just mean whoever the government of the day deems to be the people from time to time to suit its own political purposes. However, clearly some segments of “the people” may lawfully be disqualified by Parliament from voting. Children and people with serious mental illnesses are obvious examples. By contrast, the majority in Roach accepted that women, bankrupts and Australians from particular religious minorities could not lawfully be excluded from the right to vote.

Where does the Court draw the dividing line and by what criteria? How did the majority conclude that a law disqualifying prisoners serving sentences of 3 years or more is constitutionally valid but one disqualifying ALL prisoners including those serving very short term sentences is not? Chief Justice Gleeson explains it most clearly and succinctly (the other members of the majority, Justices Gummow, Kirby and Crennan were similarly minded)(long-ish extract from Gleeson CJ’s judgment follows):

In McKinlay, McTiernan and Jacobs JJ said that “the long established universal adult suffrage may now be recognized as a fact”. I take “fact” to refer to an historical development of constitutional significance of the same kind as the developments considered in Sue v Hill. Just as the concept of a foreign power is one that is to be applied to different circumstances at different times, McTiernan and Jacobs JJ said that the words “chosen by the people of the Commonwealth” were to be applied to different circumstances at different times. Questions of degree may be involved. They concluded that universal adult suffrage was a long established fact, and that anything less could not now be described as a choice by the people. I respectfully agree. As Gummow J said in McGinty v Western Australia, we have reached a stage in the evolution of representative government which produces that consequence. I see no reason to deny that, in this respect, and to this extent, the words of ss 7 and 24, because of changed historical circumstances including legislative history, have come to be a constitutional protection of the right to vote. That, however, leaves open for debate the nature and extent of the exceptions. The Constitution leaves it to Parliament to define those exceptions, but its power to do so is not unconstrained. Because the franchise is critical to representative government, and lies at the centre of our concept of participation in the life of the community, and of citizenship, disenfranchisement of any group of adult citizens on a basis that does not constitute a substantial reason for exclusion from such participation would not be consistent with choice by the people. To say that, of course, raises questions as to what constitutes a substantial reason, and what, if any, limits there are to Parliament’s capacity to decide that matter.

It is difficult to accept that Parliament could now disenfranchise people on the ground of adherence to a particular religion. It could not, as it were, reverse Catholic emancipation. Ordinarily there would be no rational connection between religious faith and exclusion from that aspect of community membership involved in participation, by voting, in the electoral process. It is easy to multiply examples of possible forms of disenfranchisement that would be identified readily as inconsistent with choice by the people, but other possible examples might be more doubtful. An arbitrary exception would be inconsistent with choice by the people. There would need to be some rationale for the exception; the definition of the excluded class or group would need to have a rational connection with the identification of community membership or with the capacity to exercise free choice. Citizenship, itself, could be a basis for discriminating between those who will and those who will not be permitted to vote. Citizens, being people who have been recognised as formal members of the community, would, if deprived temporarily of the right to vote, be excluded from the right to participate in the political life of the community in a most basic way. The rational connection between such exclusion and the identification of community membership for the purpose of the franchise might be found in conduct which manifests such a rejection of civic responsibility as to warrant temporary withdrawal of a civic right.

This brings me to the issue in the present case. The facts, the legislation, and the historical background appear from the reasons of Gummow, Kirby and Crennan JJ (“the joint reasons”). Since 1902, when the Commonwealth Parliament first legislated with respect to the franchise, the legislation always provided that, along with persons of unsound mind and persons attainted of treason, prisoners of certain kinds were not entitled to vote. The rationale for excluding persons of unsound mind is obvious, although the application of the criterion of exclusion may be imprecise, and could be contentious in some cases. The rationale is related to the capacity to exercise choice. People who engage in acts of treason may be regarded as having no just claim to participate in the community’s self-governance. It will be necessary to return to the rationale for excluding prisoners. …

It is consistent with our constitutional concept of choice by the people for Parliament to treat those who have been imprisoned for serious criminal offences as having suffered a temporary suspension of their connection with the community, reflected at the physical level in incarceration, and reflected also in temporary deprivation of the right to participate by voting in the political life of the community. It is also for Parliament, consistently with the rationale for exclusion, to decide the basis upon which to identify incarcerated offenders whose serious criminal wrongdoing warrants temporary suspension of a right of citizenship. I have no doubt that the disenfranchisement of prisoners serving three-year sentences was valid, and I do not suggest that disenfranchisement of prisoners serving sentences of some specified lesser term would necessarily be invalid. The specification of a term reflects a judgment by Parliament which marks off serious criminal offending, and reflects the melancholy fact that not all sentences of imprisonment necessarily result from conduct that falls into that category. …

As a matter of sentencing practicality, in the case of short-term sentences the availability of realistic alternatives to custody is of particular importance. If an offence is serious enough to warrant a sentence of imprisonment for a year or more, the likelihood is that the sentencing judicial officer will have formed the view that there was no serious alternative to a custodial sentence. In most Australian jurisdictions, there is a legislative requirement to treat imprisonment as a last resort when imposing a penalty. More than 95 per cent of short-term sentences are imposed by magistrates. The availability, in all the circumstances of a particular case, of other sentencing options such as fines, community service, home detention, or periodic detention may be critical. Relevant circumstances may include the personal situation of the offender, or the locality. In the case of offenders who are indigent, or homeless, or mentally unstable, the range of practical options may be limited. In rural and regional areas, the facilities and resources available to support other options also may be limited. In its June 2004 Report, made pursuant to ss 100J(1)(a) and (d) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the New South Wales Sentencing Council recorded that the Chief Magistrate “acknowledged the unavailability of uniform sentencing options throughout NSW” and “clearly demonstrated that alternatives to sentences of full-time imprisonment are not equally distributed across the State.” Practical considerations of this kind give particular meaning to “disadvantaged”. I do not suggest these problems are peculiar to New South Wales. I refer to it because it is the largest jurisdiction. A study published in 2002 examined the types of offence for which people were serving short terms of imprisonment in New South Wales. Theft (excluding robbery) was the most common offence. Then followed breaches of court orders, assault, and driving or traffic offences.

The adoption of the criterion of serving a sentence of imprisonment as the method of identifying serious criminal conduct for the purpose of satisfying the rationale for treating serious offenders as having severed their link with the community, a severance reflected in temporary disenfranchisement, breaks down at the level of short-term prisoners. They include a not insubstantial number of people who, by reason of their personal characteristics (such as poverty, homelessness, or mental problems), or geographical circumstances, do not qualify for, or, do not qualify for a full range of, non-custodial sentencing options. At this level, the method of discriminating between offences, for the purpose of deciding which are so serious as to warrant disenfranchisement and which are not, becomes arbitrary.

The step that was taken by Parliament in 2006 of abandoning any attempt to identify prisoners who have committed serious crimes by reference to either the term of imprisonment imposed or the maximum penalty for the offence broke the rational connection necessary to reconcile the disenfranchisement with the constitutional imperative of choice by the people. …

With a majority of 4/2 (Hayne and Heydon JJ dissenting) including the Chief Justice and the 2 most senior puisne Justices, this is a stronger and more authoritative decision than I was expecting. Since Justice Heydon was on record prior to his appointment to the Court as havng jaundiced views about the implied freedom of political communication, his dissent is hardly surprising. It seems that it is now conservative orthodoxy that Australia’s Constitution shoud now be seen as entrenching representative government/democracy, including a right to vote, to discuss political issues freely and to enjoy sufficient freedom of movement and association to exercise those democratic rights. That may seem a fairly mundane proposition to modern readers, but it is certainly not the way the Constitution was understood by the vast majority in 1901 nor for many years thereafter.

We can now say, at least at federal level, that Australia has a constitutionally entrenched bill of rights almost as extensive as that in the US Constitution. Our Constitution lacks only guarantees of due process and legal equality (and some very limited aspects of those freedoms have also been held to be enshrined in the concept of federal judicial power in Chapter III of the Constitution – albeit nowhere near as wide or comprehensive as the express provisions of the US 5th and 14th Amendments). The combined effect of the express and implied freedoms in the Australian Constitution and the increasing number of legislative bills of rights at state level (Victoria, ACT and Western Australia now in process) means that we can no longer accurately say that Australians don’t enjoy the protection of a bill of rights.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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17 Responses to Australians have constitutionally guaranteed voting rights

  1. Patrick says:

    If only we didn’t enjoy the protection of the various State attempts.

  2. ctd says:

    It will be interesting to see whether judges will take into account the loss of voting when considering sentences of around 3 years (I am sure defence lawyers will raise it as being an ‘additional’ penalty).

  3. Jc says:

    Ken

    The rights you speak about are of course are terrific thing. However I am a little concerned that these rights were derived through judicial process/ over reach meaning that its not their job.

    How do we know they stop there? If the court is reading these rights into the constitution where does it stop the court reading even more things we didn’t know were there?

    I’m thinking about such things as the right to a “living wage” , or the right to have our teeth fixed etc.

    Recently I read somewhere (it may have been you) how the court found our constitutional right to free speech as being an assumptive right by the existence of the constitution itself. Well the fact it is that it didn’t. I’m more than a little concerned that a short dozen robed geezers are finding rights etc. all over the place.

    I don’t see it as their job. In fact it would be better in some ways to rule that we don’t have say free speech as a constitutional right in the hope that it would put a match to our backsides to go out and do something in the proper way.

  4. Patrick says:

    Relax, Jc, in the case of our High Court there ain’t no crazy Roe nonsense about to happen no time.

    The rights that the High Court construes are essentially those that are required if the Constitution is not to be traduced or actively subverted. I tend to be very conservative indeed on rights – I regard Britain’s accession to the EU as a disaster for reasons of rights alone – but I am very comfortable with the ‘rights’ jurisprudence of the High Court of Australia.

    In the case of free speech, that is a misnomer. The constitutionally protected right is the right to communicate openly and broadly on issues relevant to the election of parliamentarians – ie, nothing more than is required for the Constitution, which proposes a system of elected government, to operate as intended.

  5. “Our Constitution lacks only guarantees of due process.”

    Pardon me if I don’t break out the champers just yet.

  6. Ken Parish says:

    Patrick is quite right. I think it’s now true to say that Australia’s Constitution DOES contain a bill of rights, but it’s a very conservative and tightly confined one. Essentially the only implied freedoms countenanced or likely to be countenanced on current jurisprudence are:

    (1) federal right to vote and freedom to discuss political issues (and associated freedom of movement and association) flowing from the provisions of Constitution sections 7 and 24 for the Houses of Parliament to be directly chosen by the people. Those provisions would be devoid of any real meaning if Parliament was free to prohibit discussion about political issues and/or decide without restriction who was allowed to vote.

    (2) rights to a fair trial, procedural fairness and equality before the law flowing from the posited inherent nature of the judicial power conferred on federal courts under Chapter III of the Constitution.

    There is no suggestion in current High Court jurisprudence (except occasionally from Kirby J) for a broad judicially fashioned right to due process or equal protection. It is those express rights in the US Constitution that have mainly been used to manufacture wide-ranging constitutionalised civil rights guarantees of abortion, gay rights etc. That won’t happen in Australia unless a majority of Kirby clones are appointed, which is highly unlikely given Rudd’s conservatism and the relative slowness of judicial turnover caused by retirements. Nor is there any scope whatever for manufacture of substantive economic rights (living wage , or the right to have our teeth fixed). So, as Patrick said, you can relax.

  7. Ken Parish says:

    That isn’t to deny that things like due process, equal opportunity or gay rights should be strongy legally protected. But I think they’re better protected by strengthening the role of the Senate, and making it more difficult for governments to get sole control of it, so that ordinary legislation protecting basic freedoms can’t easily be abrogated by a authoritarian government with a transient Senate majority, than by countenancing broadly worded bill of rights provisions (constitutionally entrenched or otherwise) that give unelected judges a blank cheque. I would argue that increasing the size of the Senate would be one of the simplest ways of strengthening its role and effectiveness in safeguarding human rights legislation. This would reduce the quota for election to the Senate under PR,and therefore increase the probability (at least under some scenarios) of minor party and independent candidates being elected and holding the balance of power.

  8. Jc says:

    Patrick, Ken.

    I’m not lawyer, however in my humble opinion I see Marbo as a form of judicial over reach. I am not arguing for or against the benefits or otherwise of the outcome, however I am concerned that decision was made in the court and not in the political arena where it belonged.

    Patrick, Marbo to me was our Roe to some extent.

    Also Patrick, if rights are fashioned by the courts they in a sense have the momentum and a sort of authority to do what they like in terms of trimming the edges or adding to them in such a way as to make themselves both the arbiters and the initiators. I have no problem with the court arbitrating these rights, however there is a problem when they initiate these rights too.

  9. Damien Eldridge says:

    More to the point, there is a fundamental difference between an implied bill of rights and an explicit bill of rights. As Ken indicated, the current interpretation of the Australian constitution is not the one that has always been held. As such, it is not obvious that we should be confident that it always will hold from here on in. Courts can and do revisit precedents from time to time. On the other hand, an explicit bill of rights would require a constitutional ammendment to change it. I suspect that constitutional ammendments are less likely to occur against minority opinions than are changes in judicial opinions.

  10. Patrick says:

    To be fair, MaboQ was indeed something of a stretch, and was an area probably best left to elected representatives – somewhat like Roe in that regard. In fact there were a few stretches at that time. But such periods are fairly rare in Australia – there has only really been one in hundred years.

    And Mabo can be overstated. It is certainly far far less inopportune a decision than Roe which was a farce. And its precedential value is far far less – it almost doesn’t have to be overturned, even if you don’t agree with it, because it doesn’t really mean much for 99% of Australians.

    So whilst Mabo was a judicial creation of rights from penumbras or some other obscure source, it has very little momentum (if any) and it probably shouldn’t keep you up at night. To wit, I’ll bet you can’t name a right that came out of Mabo (ignoring Toohey J’s reasons).

    As for the actual rights Ken has enumerated, they also have a very confined momentum. It is not like there are a shortage of plaintiffs trying to extend them, but there is deep judicial reluctance to do so. You would be reassured to know that I think the majority of senior Australian judges (and no matter what Sir Anthony Mason figures), and certainly those on the High Court, largely share your concerns.

  11. David Rubie says:

    Ken Parish wrote:

    (2) rights to a fair trial, procedural fairness and equality before the law flowing from the posited inherent nature of the judicial power conferred on federal courts under Chapter III of the Constitution.

    Where does this leave the anti-terror legislation (or more specifically the provisions which allow detention without charge and the other abominations). Is this an acknowledgment that the laws breach the constitutional guarantees of procedural fairness?

  12. Jc says:

    Ken

    Instead of strenghtrening the senate, why not go the prez route and give the office veto power over legislation. I always thought the previous attempt to have a prez was basically flawed in the fact that it didn’t allow for a directly elected Prez. It also showed the good horse sense of the public at large in that they expressed the opinion through the vote that THEY would like to be the ones deciding on the Prez. than very much.

    elect the prez and he immediately assumes a popular mandate to insinuate himself in the politcal process. Have the parliament choose and he/she become their stooge.

  13. Jc says:

    Great points Patrick.

    I appreciate the fact that Marbo does not effect most of us that directly but it does give those guys the momentuum for interventionism. If they choose to legislate from the court, how can stop them?

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