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.