The voting rights of incarcerated Australian citizens

Abstract

This paper is about the voting rights of incarcerated Australian citizens. It begins by providing some background to prisoner disenfranchisement in Australia and surveys prevailing laws at both state and federal levels. It then explores the implications of Roach v Commonwealth 2007 in which the High Court struck down the (former) Federal Government’s 2006 blanket ban on prisoner voting. Although the High Court agreed to overturn the ban it nevertheless upheld the 2004 laws that restricted voting to those prisoners serving a sentence of three or more years. By unpacking and critically assessing the various arguments used by both legislators and High Court Justices, the paper considers the validity of upholding the 2004 amendment in light of liberal democratic principles and jurisprudence arising from cases in settings that provide protection for electoral rights in formal charters of rights. We show that in bill of rights settings, any infringement on voting rights attracts strict scrutiny because formal charters generally frame voting as a fundamental right rather than a state-endowed privilege. Although we find that Charter-supported Courts rarely go so far as to say that the alienation of voting rights is inacceptable under any conditions, they do insist that any abridgement of the right to vote should be either proportionate or serve a legitimate government purpose. As we show in the following discussion, the types of arguments made in the Australian setting invariably fail both tests.