The Voting Rights of Incarcerated Australian Citizens

Abstract

Drawing on and combining political science and legal frameworks, this article explores the validity of disenfranchising Australian prisoners. The authors examine and critically assess the various arguments used in Australia by both legislators and High Court Justices to defend the practice of disenfranchisement. Such arguments are assessed against liberal democratic principles as well as jurisprudence arising from cases in settings that provide protection for electoral rights in formal charters of rights. The authors show that in settings that entrench voting rights in the Constitution, any infringement attracts strict scrutiny from the courts. Courts insist that any abridgement of voting rights should serve a legitimate government purpose and be proportionate to that purpose. The arguments made for prisoner disenfranchisement by legislators in the Australian context invariably fail both parts of this test.