Voting Rights of Prisoners in Australia

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Voting rights as a human right

The International Covenant on Civil and Political Rights (ICCPR hereafter) provides protections for civil and political rights. For the purpose of this piece, more specifically, Article 25 sets out the right to vote without discrimination.[1] Australia, as a party of the treaty, has a duty to oblige to the terms in treaties.

It should be noted that the ICCPR does allow restrictions on who can vote, as long as those restrictions are based on objective and reasonable criteria.

Discrimination towards prisoners in Australia

The Commonwealth Franchise Act 1902[2] excludes voting of persons who are serving a sentence punishable by imprisonment of one year or above. The requirement for the duration of imprisonment was extended to three years.

In 2006, Australia introduced a blanket ban on prisoner’s right to vote. This legislation was challenged in the High Court case Roach v Electoral Commissioner.[3] While the right to vote was acknowledged to be constitutionally protected, the legislation was deemed as not “appropriate and adapted” because it failed to differentiate between serious crimes. So while the blanket ban was struck down, the old law remained valid.

The United Nations Human Rights Committee (UNHRC hereafter) has stated that withholding the right to vote for individuals serving a term longer than 3 years does not meet the obligations set out in the ICCPR.[4] The UNHRC pointed out that the law does not meet the “objective and reasonable criteria.” (UNHRC, General Comment 25)

A Comparative Approach

United Kingdom

The United Kingdom had a similar statute that bans any one in imprisonment from voting. This law was firstly challenged in domestic courts.

The case of Hirst v United Kingdom (No 2)[5] the defendant, a prisoner was serving a manslaughter sentence and thus was prevented by section 3 of the Representation of the People Act 1983.[6] Section 3 sets out the punishment that convicts were prohibited from voting during their incarceration. Hirst then furthered the case to the High Court but was dismissed. Thus, an appeal to the European Court of Human Rights (ECHR hereafter) was sent.

The ECHR ruled that Article 3 of the First Protocol was violated from prohibiting Hirst from voting. The British government attempted to introduce legislation in order to give prisoners the vote but this was rejected by British parliament.

It is argued that denying voting rights undermines respect for the law and democracy rather than enhancing those values. The ECHR did agree that the legislature could legitimately deprive voting rights for certain offences but a blanket ban without differentiation is a violation to Article 3.

United States

The US courts in comparison to the UK took a different approach.

Richardson v. Ramirez concerned individuals who had completed their prison sentences but were refused the right to vote in their state of California. The defendants challenged a constitutional provision that prohibited anyone who had committed an “infamous crime” unless the courts restored voting rights.[7]

The US Supreme Court looked to Article 2, Fourteenth Amendment of the US Constitution to decide that a state has the right to restrict voting rights to those persons who had participated in rebellion or other crime.[8]

Canada

Canada’s legislation regarding voting rights, on its face, follows the rights set out in the ICCPR. Every citizen in Canada has the right to vote in an election, subject to section 1 of the Canadian Charter of Rights and Freedoms, which provides that these freedoms are subject to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Section 3 of the Canadian Charter of Rights and Freedoms states that “every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly.”[9] In 1968, a prisoner serving a life sentence was not given the opportunity to exercise the right to vote. [10]In Sauvé v. Attorney-General of Canada it was declared that the legislation limiting prisoner voting rights directly infringed section 3. However, it was accepted that this action could be taken in as a reasonable limit in line with section 1 of the Charter.[11]

Shortly after, a similar case was seen again. Another prisoner serving a life sentence brought a similar case to the Court. In Belczowski v. The Queen the court came to an agreement that stripping all prisoners of the right to vote was not a reasonable limitation of the legislation and thus it was declared invalid.[12]

After Belczowski, the decision in Sauvé was reversed. The courts agreed that withholding the right to vote from prisoners was unconstitutional thus of no force or effect.

Conclusion

International covenants such as the ICCPR clearly state the law concerning voting rights of prisoners. States who are party to the obligations set out in these covenants have chosen to go about implementing such law in controversial ways. Countries such as Australia are clearly going against their obligations with current laws regarding prisoner voting. When looking at other states such as the UK, it is noticed that the European Court of Human Rights demanded action, however change is still yet to be seen. The US upheld such restrictions because the Constitution includes an express term about “rebellion and other crimes” which does not exist in the Australian Constitution. Whilst Canada’s approach seems the most developed in that no blanket ban (without considering crimes on a case by case basis) would be a more progressive way to move forward.

References

[1] 1966 International Covenant on Civil and Political Rights (ICCPR), Art 25.

[2] Section 4, Commonwealth Franchise Act 1902

[3] Roach v Electoral Commissioner [2007] HCA 43

[4] Australian Human Rights Commission, Prisoners and Human Rights, https://www.humanrights.gov.au/our-work/rights-and-freedoms/projects/prisoners-rights accessed March 2016.

[5] HIRST v. THE UNITED KINGDOM (No. 2) - 74025/01 [2005] ECHR 681 (6 October 2005)

[6] Section 3, Representation of the People Act 1983

[7] Richardson v. Ramirez, 418 U.S. 24 (1974)

[8] U.S. Const. amend. XIV, Section 22.

[9] The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, Section 3

[10] Sauvé v. Attorney-General of Canada (1988), 53 D.L.R. (4th) 595.

[11] The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, Section 1 (for further information)

[12] Belczowski v. The Queen [1991] 5 C.R. (4th) 218 at para. 37.