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Ballotless and behind Bars: The Denial of the Franchise to Prisoners

Published online by Cambridge University Press:  24 January 2025

Graeme Orr
Graeme Orr*
Affiliation:
Griffith University
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Extract

This article argues against the disenfranchisement of prisoners and explores the terrain of possible political and legal reform in this area. After a brief introduction defending the importance of the franchise, the article falls into several parts. First, there is an examination of the definition of the franchise by Australian electoral law, in the context of international norms. The second part explores arguments for and against prisoner enfranchisement, and draws on overseas jurisprudence, and historical and political theory. The practical effect of the disenfranchisement is then assessed statistically, and also in terms of realpolitik. Finally, the possibility of using anti-discrimination law to challenge these laws is considered.

Type
Research Article
Information
Federal Law Review , Volume 26 , Issue 1 , March 1998 , pp. 55 - 82
Copyright
Copyright © 1998 The Australian National University

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Footnotes

This article builds on a paper given to the Australian Society of Legal Philosophy conference, University of Queensland, July 1996. I gratefully acknowledge Brian Fitzgerald's encouragement, and the Federal Law Review referee's kind and considered comments.

References

1 Developments in some parts of the middle east and continental Asia may qualify,but not deny,this statement.

2 A single example may suffice: the Bosnian Serb Prime Minister of the self-styled “Republika Srpska” described indicted war criminal and former Bosnian Serb President Radovan Karadzic as “a democrat in his soul” (Guardian Weekly 23 June 1996 at 4).Karadzic's party is the SDS, the “Serbian Democratic Party”.This is not to suggest nationalist movements are incapable of being truly democratic, especially in post-communist states (perhaps Karadzic et al are democrats - as long as one is a BosnianSerb).Rather,it is to suggest the power and cachet of the term “democratic”as a brand name.

3 This phenomenon is not uncommon.Compare the tendency,identified by Finer,for French political groups to incorporate words like “Republican”and “Popular”into their titles, in inverse proportion to their actual revolutionary or populist base.Finer explains this in terms of the historical glissement a gauche (or drift to the left) in French politics between the war and the 1970s (S Finer, Comparative Government (1970) at 276-279).The same logic could be applied to our age: a drift to liberalism, at least as a rhetorical paradigm post-cold war, leads to a situation where new forces either want to align themselves with “democratic” values as a form of sales-pitch, or take on such appellations precisely to mask their absence in the hope of conforming to a discourse which takes them for granted.

4 I do not mean to imply that representative elections and referenda are the apogee of democracy:Hannah Arendt's work on isonomy,political equality and the imperative for genuine,active participation is enough to debunk such a claim.However even Arendt would not doubtthe ultimate necessity of some forms of plebiscite,as well as balloting to generate some mix of representative institutions, and perhaps an ultimate representative tribunal,given the nature of mass,specialised society:M Gottsegen, The Political Thought of Hannah Arendt (1994).

5 Not even freedom of speech is so valuable, since its power ultimately resides in its ability to sway the opinion of the franchised: whether they be other citizens as voters, or indirectly through representatives who are accountable to voters. Perhaps equality of opportunity, in its formal guise, comes close. Unfortunately, in this age, more substantive notions of equality are far from universally accepted.

6 I am not necessarily endorsing the particular age qualification currently employed (18 years) - some,such as the Greens,suggest it be lowered.At a minimum though, no-one contests the fairness of enforcing some minimum voting age,because of the social and intellectual maturity required to vote.

7 Once women and indigenous people suffered - and still today most resident non-citizens suffer - blanket exclusions. Such exclusions deny political citizenship to those they affect.

8 Commonwealth Electoral Act 1918 (Cth),s 93(1)(a).Minors can,federally and in some States,pre-enrol at 17 in order to be eligible to vote if an election is called after their 18th birthday without having to rush through an enrolment prior to the close of the rolls shortly after the issuing of the writs:s 100(1) of the Act.

9 Section 93(1)(b) of the Act.An exception in s 93(1)(b)(ii) preserves the right to vote of British subjects who were enrolled to vote before 26 January 1984.Again,this is a contestable place to drawn the line,yet few would argue that some minimum residency and attachmentto the political community in question is a necessary pre-requisite to possessing the right to vote.

10 Section 93(8)(a) of the Act.Typically such voters are disenrolled only if the Australian Electoral Commission(the AEC)is notified by a relative or carer concerned to avoid the potential fine for failure to vote.

11 Where “equal” refers to formal equality - one person,one vote,without any discrimination as to race,gender,or property qualifications, nor plural voting for some - as opposed to more substantive issues of one vote,one value or proportional representation.

12 Brooks, A, “A Paragon of Democratic Virtues? The Development of the Commonwealth Franchise”(1993)12 U Tas LR 208Google Scholar,in a lawyerly,historical account of the evolution of the franchise in Australia, argues that this “cherished myth” of Australia as a paragon of electoral democracy is blemished,particularly as regards indigenous Australians,but also more generally in pusillanimous court decisions on voting rights and one-vote one-value,such as R v Pearson ex parte Sipka (1983) 152 CLR 254; Attorney-General (Cth) ex rel McKinlay v Commonwealth (1975)135 CLR 1; and McGinty v Western Australia (1996)186 CLR 140.

13 Section 93(8)(b).

14 See figures in,and immediately following,Table Two,below,text at n 96.

15 We may not technically perpetuate infamy,ostracism,banishment and outlawry (in the old Germanic sense of ousting from the tribe,rather than the common law sense of sentencing in absentia). However many features of modern incarceration,social and media stigmatisation, and the denial of certain civil rights, are but contemporary versions of these ancient practices.

16 Commonwealth Parliament,Joint Standing Committee on Electoral Matters,The 1996 Federal Election (1997) Recommendation 24 at 48-49.

17 This field was previously surveyed by Fitzgerald, J and Zdenkowski, G, “Voting Rights of Convicted Persons”(1987)11 Crim LJ 11Google Scholar.

18 Now in fact known as the Directors of the various State correctional departments.

19 Section 109 of the Act.

20 Commonwealth Franchise Act 1902 (Cth),s 4.

21 Section 93(8)(c)of the Act.

22 Crimes Act 1914 (Cth), s 30FD.This disqualification was introduced in 1932,having not been present in the original UnlawfulAssociations Act 1916(Cth).

23 Compulsion is provided by ss 101(enrolment)and 245(voting)of the Act.The only significant exception is for Norfolk Islanders,for whom enrolment and hence voting is voluntary under s 101(5A) of the Act.

24 At least 40 were imprisoned after the 1993 election:see sources quoted in M Healy and J Warden, Compulsory Voting (Parliamentary Research Service Paper No 24/95)at 18.

25 According to a survey taken prior to the 1996 Federal election:a remarkable finding given that election was notable for a lack of polarisation or enthusiasm in the electorate,and a perception that the major parties'platforms were indistinguishable.Compulsory voting would appear to have reinforced the value of the ballot,rather than encouraging cynicism towards or devaluation of it.

26 Remandees are serviced by a mobile polling booth under Electoral Act 1992 (ACT),s 150.

27 Electoral Act 1992 (ACT),s 71(2).

28 Far from being a conservative outpost, the Northern Territory thus followed South Australia in being the second Australian jurisdiction to allow the full prisoner franchise. The NT has Australia's highest incarceration rate: 2.64% of Australia's prisoners were in NT gaols as of 30 June 1994, whereas the NT population at that time accounted for just 0.95% of the nation's population: National Correctional Services Statistics Unit, Australian Bureau of Statistics, Prisoners in Australia, 1994 (1996) and Australian Bureau of Statistics, Year Book Australia (1995) at 93.

29 Mr Perron, then Chief Minister, explained this act of disenfranchisement thus: “While there is always likely to be debate in the community as to what,if any,rights should be retained by those serving prison terms, the priority of my government is to simplify the rules surrounding those rights …”(emphasis added), NT Parl Rec 1995 No 11 at 3813.

30 Criminal Law and Penal Methods Reform Committee of South Australia, Sentencing and Corrections (Report No 1,1973)at 130.

31 On the development and theoretical context of article 25 see Steiner, H, “Political Participation as a Human Right”(1988) 1 Haro Hum Rts Yrbk 77Google Scholar.

32 “Citizens”in international human rights law does not encompass children.

33 The Seventh International Congress of Criminal Law 1957's finding that the loss of civil rights is a specific form of “degradation [which] should be abolished” (in Damaska, below n 49 at 354);the Report of the Mitchell Committee in South Australia, above n 30; and Nagle J's recommendation in the Report of the Royal Commission into New South Wales Prisons (1978)that “lossof liberty is the essential punishment,with prisoners retaining all other rights except those necessarily limited by the need to maintain security”.

34 As reported by Damaska in 1968, below n 49 at 358.

35 Many female prisoners in New South Wales,through the new Parramatta Transitional Centre,can engage in community work,have access to bank accounts, and are allowed to care for their children.It is ironic that some of those prisoners will have access to such practical freedoms in a bid to restore their links with the community,but still be denied the vote.Perhaps even odder is the widespread practice in the United States of disenfranchising prisoners,but allowing them extensive communication and even media access rights,under first amendment free speech principles:A Fowles, Prisoner's Rights in England and the United States (1987)at 127-129.

36 Section 226A of the Act provides for mobile polling booths at prisons,including procedures for the distribution of candidates' electoral material to prisoners.Under Schedule 2 of the Act,enrolled voters in detention are eligible to apply for either a pre-poll ora postal vote.Section 184A(2)(d) of the Act further entitles those in custody who are entitled to enrolment,to register as general postal voters - so they automatically receive postal vote application forms once an election is called.Prisoners generally are targeted as supplies of postal vote applications are sent to the officer in charge of each prison for distribution: AEC, Divisional Office Procedures Manual Volume One,part 14(2)at 8.

37 AEC, Divisional Office Procedures Manual Volume One, part 13(4) at 2.

38 Aboven29.

39 25 Am Jur 2d atA§ 94.

40 149 ALR 1067 (1943) at 1069 per Hyde J for the Court.To similar effect was the North Dakotan Supreme Court in State ex rel Olson v Langer 256 NW 377 (1934) at 387 per Burke J (“purpose … is the protection of the state by denying [the vote]to those whose unfitness is evidenced by conviction of felony. This disqualification is not a penalty”).See also Application of Marino 42 A2d 409.

41 356 US 86 (1958) at 96-97, in obiter from the plurality opinion. Of course whilst the legislature in a representative democracy can only claim the mandate of the enfranchised and hence has an incentive to keep the franchise as broad as possible to maximise its mandate, legislators of various political backgrounds may have an incentive to exclude from the franchise particular groups who are unlikely to support them.

42 American Jurisprudence 2d at § 53-54.Exceptions to this are instances where State constitutions explicitly enshrine the right to vote.

43 380 F2d 445 (1967).Certiorari application to the United States Supreme Court was denied,with Douglas and Brennan JJ dissenting:389 US 1048(1968).

44 418 us 24 (1974).

45 Ibid at 74 per Marshall J. Section 25 of the Australian Constitution is based on the fourteenth amendment.

46 Aboven36.

47 Currently the number of prisoners and other convicted persons denied the vote under Commonwealth electoral law is,at a rough estimate, between 6 000 and 9 000: Table Two,below,text at n 96.This represents less than 0.07% of total electoral enrolments.

48 Such arguments probably also lay beneath the war-time disenfranchisement of citizens born in an enemy country,as occurred under the Commonwealth Electoral (War-time) Act 1917 (Cth), ss 10-12.

49 Even Damaska used the phrase “collateral consequences”in compiling an extensive and detailed two part article: Damaska, M, “Adverse Legal Consequences of Conviction and their Removal:A Comparative Study”(1968) 59Google Scholar Journal of Criminal Law, Criminology and Police Science 347 (Part One) and 542 (Part Two).

50 Thus documents such as the UN Standard Minimum Rules for the Treatment of Prisoners outline minima for conditions of imprisonment,without touching on broader civil rights.In tum,this emphasis leads researchers to focus solely on direct forms of treatment: eg, T Birtles, “Prisoners' Rights in Australia” (1989) ANZJ Crim 203.An exception to this is the collection of pieces on“The Status of Prisoners”,in L Radzinowicz and M Wolfgang (eds), Crime and Justice (Vol 3):the Criminal in Confinement (1971).

51 Foucault, M, Discipline and Punish:the Birth of the Prison (1991)Google Scholar.Ignatieff notes that before 1775, major crimes were punished with banishment,pillory,corporal or capital punishments,with incarceration a short term measure for minor infringements: Ignatieff, M, A Just Measure of Pain:the Penitentiary in the Industrial Revolution 1780-1850 (1978) at 24-25CrossRefGoogle Scholar.

52 Generally,in instances of high treason, all property,both real and personal,was forfeited to the Crown.In cases of petit treason and felony, all personal property was forfeited absolutely, but real property interests were ceded to the Crown for a short period,which became known as “the king's year,day and waste”,since the Crown could take control of,and waste,such real estate,for a year and a day,although the right to waste (ie,destroy fixtures, raze the land) became a right to take the profits of such land: Blackstone, Commentaries on the Laws of England,ch 29,Book IV at 380 -385.

53 Loss of rights by corruption of blood went as far as to deny issue the right to inherit any property.This doctrine was abolished by 54 Geo III (Imp) c 145.

54 33&34 Viet (Imp)c 23.

55 The current UK provision is in some ways harsher.Anyone in prison serving a sentence is legally incapable of voting:Representation of the People Act 1983 (UK),s 3.

56 The Forfeiture Act (Imp),s 8.

57 Ibid, s 9.

58 Ibid,s 10.

59 Blackstone noted that in cases analogous to treason,the forfeiture of property to the Crown could be found in Anglo-Saxon law:Blackstone, Commentaries, above n 52 at 383.

60 For instance, soldiers who were dishonourably discharged - an example of infamia immediata as opposed to infamia mediata, which followed as a consequence of a judicial decision. Burdick, W, The Principles of Roman law and their Relationship to Modem Law (1938) at 209Google Scholar. Technically, once the list of infamous crimes and breaches of obligations became settled, there was little judicial discretion and hence little difference in the types of infamia.

61 S Amos, The History and Principles of the Civil Law of Rome (1989) at 112-113.Damaska also lists the abridgment of the right to marry:above n 49 at 351.

62 A point developed by the French scholar Michel Villey: B Tierney, “Villey, Ockham and the Origin of Individual Rights” in J Witte and F Alexander (eds), The Weightier Matters of the Law: Essays on Law and Religion (1988).

63 Although as one writer observes,by Justinian's time,infamy's consequences regarding public rights and privileges had faded, as suffragium and honores were by then of little value: Burdick,above n 60 at 210.

64 Todd, S, The Shape of Athenian Law (1993)at 142-143 and 182Google Scholar.

65 At least in Christian doctrine,it is the convict whose spirit,reputation and legal personality is forever besmirched, rather than the society and people with whom the convict may come into contact who may be “tainted”(allowing that a more magical understanding —that the wrongdoer taints the whole community and even the physical world,well documented in Frazer, J, The Golden Bough:a Study in Magic and Religion (1922)CrossRefGoogle Scholar —obviously lives on in contemporary fears and ostracism).

66 One textbook categorised the loss of civil rights under the heading “social degradation”:E Sutherland and Cressey, D, Criminology (9th ed 1974)at 308-309Google Scholar.Damaska concurred “[there is]little doubt that the motive behind [inflicting a loss of civil rights] is that of degrading the offender”:above n 49 at 354.

67 Some legislation retains explicit classical links:for example the Californian Constitution denies electoral rights to those convicted of “infamous”crimes:discussed in Otsuka v Hite Cal 2d 596(1966).A common,classical ancestry helps explain why such practices are so widespread and often similarly framed. As to their frequency, see the survey in Damaska,above n 49.For an overview of the Canadian position in the context of prisoner's civil rights generally,see Kaiser, G, “The Inmate as Citizen: Imprisonment and the Loss of Civil Rights in Canada”(1971) 2 Queen's LJ 208 at 213-215Google Scholar.

68 They used pebbles known as psephoi, whence our term “psephology”for the study of elections.

69 The United States Court of Appeals explicitly invoked Locke's social contract theory in Green v Board of Elections of theCity of New York 380 F2d 445 (1967)at 451.

70 Such as freedom of movement,sexual freedom,and the right to work.

71 One can understand the basis on which a Director of the Queensland Corrective Services Commission might claim that “the majority[of prisoners]do not overly concern themselves with this aspect[ie,voting]of civil responsibility”:letter to author,1 July 1996.

72 Unless it be thought that the sense of shame a convict might feel at losing the vote or other civil rights might work in some small way to encourage him to feel,and redemptively work through,his guilt.

73 Aristotle's zoon politikon.

74 A point stressed in S Rubin, “The Status of Prisoners:1 Loss and Curtailment of Rights”in L Radzinowicz and M Wolfgang (eds),above n 50 at 25.

75 Holmes, O W Jr, The Common Law (1881)at 40Google Scholar.

76 Ibid at 41-42.

77 In recent attempts to enfranchise prisoners in Australia,retributive urges,invoked and fed by self-serving media and political appeals,were central to thwarting reform in this area.

78 J Feinberg,“The Expressive Function of Punishment”(1965) 49 The Monist 397.

79 [1993]2 SCR 438(Sup Ct).

80 (1996)132 DLR (4th)136(Fed Ct).

81 Sauve v Canada(Chief Electoral Officer) (1996)132 DLR (4th)136 at 160-178.section 1 of the Canadian Charter of Rights and Freedoms allows for reasonable restrictions on some substantive charter rights.

82 J Hampton,“Should Prisoners have the Right to Vote? A Case Study in the Expressive Nature of Law”University of Toronto Faculty of Law,Workshop Series 1995-96 (3) at 42.Professor Hampton's feminism is important to her argument,since she pictures long term prisoners generally as male perpetrators of serious acts of violence,and hence as violators of fundamental community values.

83 Belczowski v Canada (1992)90 DLR(4th)330 at 340-341 per Hugessen JA.The Federal Court of Appeal in that casefound a provision suspending voting rights of all prison inmates to contravene the Canadian Charter. Belczowski was affirmed inSauve v Canada (Attomeya-General) [1993]2 SCR 438.

84 The Sunday-Mail (Brisbane),9 July 1995 at 1.

85 P Slipper,MHR(Lib),H Reps Deb 1995, No 203 at 694.Mr Slipper also asserted,without pausing to give it,that there was “avery strong argument … that people who are incarcerated … ought not to be able to vote at all while they are in prison”:ibid.

86 R Katter,MHR(Nat),H Reps Deb 1995, No 203 at 731.

87 Hon.F Walker,MHR (ALP),Minister for Administrative Services,H Reps Deb 1995, No 203at737.

88 Correctional departments found it impossible to supply the AEC with accurate information on prisoners by potential sentence, but could easily supply information based on actual sentence.

89 Aboven20.

90 Commonwealth Constitution,s 44(ii).

91 For example,a member must be over 21,and a resident of Australia for at least three years:Commonwealth Constitution,ss 16,34.

92 Aboven 16.

93 Prisoners in Australia, above n 29.

94 Conversely,there may be a few long term prisoners who are not Australian citizens and hence not eligible to enrol or vote anyway.

95 Prisoners on parole might,if they tried,be able to re-enrol,provided they did not disclose their status to the AEC.

96 It is difficult to obtain current and accurate statistics by length of incarceration from all State and Territory correctional authorities.However figures supplied by all States and Territories bar Victoria in May/June 1996 indicate a 22% rise,much of this attributableto growth in Queensland.

97 Based on figures supplied to the author by Queensland and South Australian correctional authorities in May/June 1996.

98 Aboriginal and Torres Strait Islanders form approximately 1.6% of Australia's population.

99 Again, the number affected by the disenfranchisement may be greater since these figures do not include those convicted but on parole or similar community orders. However the purpose of considering these figures – to gauge the relative discrimination against indigenous people – is not affected by this.

100 AIS v Banovic (1989)168 CLR 165.Similar words were held to be “plain,clear words of wide import”in the United Kingdom case Holmes v Home Office (1984)1 BEQ 801 at 805.The CCH Australian and New Zealand Equal Opportunity Law and Practice states at,¶4-600 that a “requirement or condition may take an infinite variety of forms,but generally includes policies,practices, rules or stipulations which on their face appear neutral,but have a discriminatory effect in practice”(emphasis added).

101 (1985)159 CLR 70.

102 Ibid at 80-81 per Gibbs CJ,at 92-93 per Mason J,at 131 per Brennan J and at 146 per DeaneJ.

103 Ellenbogen v FCT (1988)19 ATR 736 at 741 per Einfeld J (“respondent agreed that if anything, this was as 10 and not as 9 case”) suggests a dichotomy under which s 10 is the proper resort where a statutory provision is the subject of the complaint. However Zhang Fu Qui v Minister for Immigration and Ethnic Affairs (1995)37 ALD 443 decided against as 9 challenge to a migration regulation on the grounds that no relevant human right was involved, without adverting to the question of whether s 9,rather than s 10,could apply to statutory instruments.

104 (1997)149 ALR 309,a single judge decision of Branson J.

105 Human Rights and Equal Opportunity Act 1986 (Cth),ss 3 and 31.

106 (1995) EOC ¶92-730.Although the AMC succeeded in an appeal to the Federal Court in AMC v HREOC (1996) EOC ¶92-830, nothing in the appeal judgments contradicts the finding that statutory authority does not necessarily preclude a claim.

107 (1995)EOC 78,455.The claim under consideration was that a statutory provision was discriminatory in breach of s 9 read in light of s 9(1A).The provision,in the Medical Practice Act 1994 (Vic),required certain overseas doctors to sit an examination.Note that the statute was a State rather than a Federal one.

108 (1995)EOC 78,456-78,457.

109 (1995)129 ALR 455 at 480.

110 Which is being demonstrated in recent electoral law cases such a_s Langer v Cth (1996)186 CLR 302; Muldowney v SA (1996) 186 CLR 352 and McGinty v WA (1996) 186 CLR 140.

111 It was argued that given the over-representation of blacks in the prison population in that State,disenfranchisement caused illegitimate dilution of black voting power,in contravention of the United States Constitution and the Voting Rights Amendment Acts 1982 (US) provisions against statutes which denied minorities an equal chance to participate in the political process.

112 Wesley v Collins 605 FSupp 802 (1985);affd 791 F2d 1255 (1986).

113 Harvey, A,“Ex-Felon Disenfranchisement and its Influence on the Black Vote:the Need for a Second Look”(1994)142 Uni of Penn LR 1145CrossRefGoogle Scholar.

114 Oddly,whilst no United States indirect discrimination case has succeeded in this field,a direct discrimination case has.The Supreme Court in Hunter v Underwood 471 US 222(1985)ruled unconstitutional a provision in the Alabama Constitution which disenfranchised those convicted, inter alia, of any crime “involving moral turpitude”since as a matter of historical fact the provision was motivated by a discrimatory intent against blacks and poor whites.

115 For such arguments in the United States context,see A Harvey,above n 113 at 1162-1164.

116 McCorrister v Attorney-General of Canada, heard and reported with Sauve v Canada (Chief Electoral Officer) (1996)132 DLR (4th) 136.

117 SDA,s3(b).

118 (1983)57 ALJR 205(Murphy Jin lone dissent).

119 Above n 17 at 38-39.

120 Similar obligations justified the sexual privacy legislation enacted primarily to override Tasmania's laws criminalisinghomosexual acts.