The People's Choice: The Prisoner Franchise and the Constitutional Protection of Voting Rights in Australia

Election Law Journal, 8 2: 123-139, 2009

Posted: 20 Jun 2015

See all articles by Graeme D. Orr

Graeme D. Orr

The University of Queensland - T.C. Beirne School of Law

George Williams

University of New South Wales (UNSW) - Faculty of Law

Date Written: 2009

Abstract

The Prisoner Franchise is a perennial issue in Western democracies. This is particularly so in Australia, where for over two decades there has been considerable debate, both legislative and public, on whether and which prisoners should be able to vote. The absence of any express right to vote in the Australian federal or state constitutions has often led the debate to be couched on the assumption that Australian parliaments have an unfettered power to disenfranchise prisoners. The correctness of this assumption was tested in the recent decision of the High Court of Australia in Roach v. Electoral Commissioner.

In 2006, the Federal Parliament passed legislation introduced by the Howard conservative government that denied the vote in federal elections to anyone who, on polling day, was serving time for an offense. Prior to this, only prisoners serving three years or more - or any unpardoned of treason - were disenfranchised. In 2007, the High Court, Australia's "top" court, struck down the blanket ban on prisoner voting in a suit brought by Vicki Roach, an indigenous woman serving a six year sentence, who claimed that the ban was inconsistent with the Australian Constitution. The Court agreed by a majority of 4-2, and instead upheld the prior three year rule.

This article examines this decision, both in its implications for prisoner voting rights and its broader implications for electoral democracy. For the first time, a majority of the Australian High Court has held that the requirement in sections 7 and 24 of the Australian Constitution that the Houses of Federal Parliament be "directly chosen by the people" imposes meaningful limitations on Parliament's ability to delimit the franchise.

JEL Classification: K00

Suggested Citation

Orr, Graeme and Williams, George, The People's Choice: The Prisoner Franchise and the Constitutional Protection of Voting Rights in Australia (2009). Election Law Journal, 8 2: 123-139, 2009, Available at SSRN: https://ssrn.com/abstract=2620487

Graeme Orr (Contact Author)

The University of Queensland - T.C. Beirne School of Law ( email )

The University of Queensland
St Lucia
4072 Brisbane, Queensland 4072
Australia

George Williams

University of New South Wales (UNSW) - Faculty of Law ( email )

Kensington, New South Wales 2052
Australia

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