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

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.