Australians’ implied right to vote
The right to vote is universal, but not absolute, according to the UN Committee on Human Rights. The Australian Constitution reflects that understanding, according to a recent decision of the High Court dubbed "the biggest constitutional law case of the year", with a bearing on this month’s federal election.
The Australian Constitution says that parliamentarians must be "directly chosen by the people", but it does not say explicitly that every Australian has the right to vote.
In 2004, the Howard Government, which dominates both Houses of Parliament, amended the Electoral Act to revoke the franchise of prisoners sentenced to 3 years or more. In 2006 parliament passed a further amendment disenfranchising all convicted prisoners — over 20,000 people.
Vickie Lee Roach, a middle-aged indigenous rights activist currently serving a prison sentence (for dangerous driving), brought a test case challenging the constitutionality of a law stripping her of her right to vote.
Voting is compulsory in Australia. Clearly, there are exceptions to this right and obligation: non-citizens, children and Australians "of unsound mind" are not allowed to vote.
The default expectation of the International Covenant on Civil and Political Rights is that prisoners retain their right to vote. Offenders, once incarcerated, ought not to be subjected to "any hardship or constraint other than that resulting from the deprivation of liberty."
The UN Committee (and the Australian Constitution, it seems) allow for suspension of convicted prisoners’ voting rights by law. Canceling prisoners’ right to vote, however, risks implying that human rights are contingent on behaviour. They are not.
Another problem, at least in Australia, is that the racial and socio-economic profile of the prison population does not reflect society at large. Withholding rights on the basis of incarceration discriminates against overrepresented groups such as indigenous Australians who comprise 24% of the prison population, but only 2.4% of all Australians.
So the Electoral Act could amount to racial discrimination, defined by the International Convention on the Elimination of All Forms of Racial Discrimination as:
"any . . . exclusion [or] restriction . . . based on race . . . which has the . . . effect of . . . impairing the . . . exercise, on an equal footing, of human rights . . . in the political . . . or any other field of public life."
In Roach v Electoral Commissioner (2007) the High Court ruled that the 2006 amendment was unconstitutional, meaning Australian prisoners revert to the 3-year rule, deemed by the High Court to be valid.
Chief Justice Murray Gleeson points out the arbitrariness of excluding only those offenders given custodial sentences. But he does accept that committing a serious offence — civic irresponsibility — may be legitimate grounds for temporary suspension of the right to vote.
The difficulty with this approach, however, is that it treats voting not as a right, but as a privilege.
I welcome the High Court’s decision, but bemoan the lack of legal protection of human rights in Australia to which the bench could refer. From a human rights perspective, the 3-year rule to which Australia now reverts is still a problem.
Few rights are absolute. It is necessary and proper that competing rights be balanced and, perhaps, adjudicated, with some holding sway over others in certain circumstances. Depriving a person of their right to liberty can be justified if they have been convicted of a crime that injures the rights of others. It’s hard to maintain, however, that a person thus convicted further infringes another’s rights by voting.
[…] While she was inside, prison authorities refused to allow indigenous activist Vicki Roach to give media interviews about her remarkable 2007 High Court Constitutional challenge. Instead, she wrote a letter to Anita Barraud of the Australian Broadcasting Corporation outlining some of her arguments: […]