HIGH COURT OF AUSTRALIA
GLEESON CJ
GUMMOW, KIRBY, HAYNE, HEYDON AND CRENNAN JJVICKIE LEE ROACH PLAINTIFF
AND
ELECTORAL COMMISSIONER & ANOR DEFENDANTS
Roach v Electoral Commissioner
[2007] HCA 43
Date of Order: 30 August 2007
Date of Publication of Reasons: 26 September 2007
M19/2007ORDER
The questions stated in the Amended Special Case filed on 9 July 2007 be answered as follows:
(1)
Q.Are ss 93(8AA) and 208(2)(c) of the Act, and s 221(3) of the Act to the extent that it gives effect to these provisions, invalid because they are contrary to ss 7 and 24 of the Commonwealth Constitution?
A.Sections 93(8AA) and 208(2)(c) of the Act are invalid.
(2)
Q.Are ss 93(8AA) and 208(2)(c) of the Act, and s 221(3) of the Act to the extent that it gives effect to these provisions, invalid because they are beyond the legislative power of the Commonwealth conferred by ss 51(xxxvi) and 30 of the Constitution and any other head of legislative power?
A. Unnecessary to answer.
(3)
Q.Are ss 93(8AA) and 208(2)(c) of the Act, and s 221(3) of the Act to the extent that it gives effect to these provisions, invalid because they are contrary to:
(i) The freedom of political communication implied in the Constitution; or
(ii)A freedom of participation, association and communication in relation to federal elections implied in the Constitution?
A.Unnecessary to answer.
(3A)
Q.If the answer to question 1, 2 or 3, is "yes", are ss 93, 109, 208 and 221(3) of the Act as in force prior to the amendments (including repeals and substitutions) made to those and related provisions by the Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Act 2006 (Cth), s 3 and Sched 1, items 3, 4, 13, 14, 15, 50, 61 and 62 in force and valid?
A. The provisions listed in the question are in force and valid.
(3B)
Q.If the answer to question 3A is "no", are ss 93 and 109 of the Act as in force prior to the amendments (including repeals and substitutions) made to those and related provisions by the Electoral and Referendum Amendment (Prisoner Voting and Other Measures) Act 2004 (Cth), s 3 and Sched 1, items 1-5 in force and valid?
A. Question 3B postulates a relevant distinction between the text of the Electoral and Referendum Amendment (Prisoner Voting and Other Measures) Act 2004 (Cth) and the Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Act 2004 (Cth), but, given the answer to question 3A, unnecessary to answer.
(3C)
Q.If the answer to question 3B is “no”, are ss 93 and 109 of the Act as in force prior to the amendments (including repeals and substitutions) made to those and related provisions by the Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Act 2004 (Cth), s 3 and Sched 1, items 6, 7, 46, 71 and 95 in force?
A.Question 3C postulates a relevant distinction between the text of the Electoral and Referendum Amendment (Prisoner Voting and Other Measures) Act 2004 (Cth) and the Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Act 2004 (Cth), but, given the answer to question 3A, unnecessary to answer.
(4)
Q. Who should pay the costs of the special case?A.The plaintiff should have one half of her costs of the amended special case.
(5)
Q.Should the Court grant the plaintiff the relief claimed in paragraph 1 of the application for an order to show cause, namely a declaration that ss 93(8AA) and 208(2)(c) of the Act are invalid and of no effect?
A. Unnecessary to answer, given the answer to question 1.
Representation
R Merkel QC with F K Forsyth and K L Walker for the plaintiff (instructed by Allens Arthur Robinson)
P J Hanks QC with P R D Gray for the first defendant (instructed by Australian Government Solicitor)
D M J Bennett QC, Solicitor-General of the Commonwealth with L G De Ferrari for the second defendant (instructed by Australian Government Solicitor)
R J Meadows QC, Solicitor-General for the State of Western Australia with R M Mitchell intervening on behalf of the Attorney-General for the State of Western Australia (instructed by State Solicitor's Office (WA))
M G Sexton SC, Solicitor-General for the State of New South Wales with K M Richardson and J S Caldwell intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor's Office (NSW))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Roach v Electoral Commissioner
Constitutional law (Cth) – Legislative power – Franchise – Before amendment by the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth) ("the 2006 Act"), the Commonwealth Electoral Act 1918 (Cth) ("the Electoral Act") prohibited a person serving a sentence of imprisonment of three years or longer from voting at an election for a House of the Commonwealth Parliament ("the three-year provisions") – The 2006 Act amended the Electoral Act to prohibit a person serving any sentence of imprisonment from voting – Whether ss 93(8AA) and 208(2)(c) of the Electoral Act, as amended by the 2006 Act, were invalid – Whether a law disenfranchising prisoners was a law with respect to the "qualification of electors" within the meaning of ss 8, 30 and 51(xxxvi) of the Constitution.
Constitutional law (Cth) – Legislative power – Representative government – Constitutional limitations upon the power of Parliament to prescribe the franchise – Whether ss 93(8AA) and 208(2)(c) of the Electoral Act, as amended by the 2006 Act, were compatible with the system of representative government established by ss 7, 24 and 128 of the Constitution – Relevance of s 44(ii) of the Constitution – Relevance of constitutional history – Relevance of the franchise of colonial legislatures.
Constitutional law (Cth) – Legislative power – Representative government – Whether disenfranchisement of persons serving a sentence of imprisonment was appropriate and adapted to serve an end which was consistent or compatible with the constitutionally prescribed system of representative government – Whether the three-year provisions were appropriate and adapted to that end – Relevance of prisoner culpability – Relevance and scope of legislative and political choice concerning the disenfranchisement of all prisoners serving any sentence of imprisonment.
Constitutional law (Cth) – Legislative power – Franchise – Whether a federal law disenfranchising prisoners convicted under State law was invalid – Whether a sentence of imprisonment for an offence against the law of a State was a valid factum for the operation of federal law.
Constitutional law (Cth) – Legislative power – Freedom of political communication – Whether participation as an elector amounted to political communication – Whether ss 93(8AA) and 208(2)(c) of the Electoral Act, as amended by the 2006 Act, burdened the freedom of political communication.
Statutes – Construction – Amendment and repeal – Whether the invalidity of provisions amended by the 2006 Act left intact the repeal of the three-year provisions – Whether the three-year provisions continued in force.
Words and phrases – "directly chosen by the people", "elector", "franchise", "qualification of electors", "reasonably appropriate and adapted", "representative government".
Constitution, ss 7, 8, 24, 30, 44(ii), 51(xxxvi), 122, 128.
Commonwealth Electoral Act 1918 (Cth), ss 93(8), 93(8AA), 208(2)(c).
Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth), Items 14, 15 and 61 of Sched 1.1 GLEESON CJ. The Australian Constitution was not the product of a legal and political culture, or of historical circumstances, that created expectations of extensive limitations upon legislative power for the purpose of protecting the rights of individuals. It was not the outcome of a revolution, or a struggle against oppression. It was designed to give effect to an agreement for a federal union, under the Crown, of the peoples of formerly self-governing British colonies. Although it was drafted mainly in Australia, and in large measure (with a notable exception concerning the Judicature – s 74) approved by a referendum process in the Australian colonies, and by the colonial Parliaments, it took legal effect as an Act of the Imperial Parliament. Most of the framers regarded themselves as British. They admired and respected British institutions, including parliamentary sovereignty. The new Federation was part of the British Empire; a matter important to its security. Although the framers were concerned primarily with the distribution of legislative, executive and judicial power between the central authority and the States, there remained, in their view of governmental authority affecting the lives of Australians, another important centre of power in London.
2 In Mulholland v Australian Electoral Commission[1], for the purpose of noting a partial explanation of what the Constitution says and what it does not say, I referred to Barwick CJ's observations in Attorney-General (Cth); Ex rel McKinlay v The Commonwealth[2]:
"Because [the] Constitution was federal in nature, there was necessarily a distribution of governmental powers as between the Commonwealth and the constituent States with consequential limitation on the sovereignty of the Parliament and of that of the legislatures of the States. All were subject to the Constitution. But otherwise there was no antipathy amongst the colonists to the notion of the sovereignty of Parliament in the scheme of government."
[1](2004) 220 CLR 181 at 189.
[2](1975) 135 CLR 1 at 24.
3 Speaking extra-judicially in 1942, to an audience in the United States, Sir Owen Dixon said[3]:
"The framers of the Australian Constitution were not prepared to place fetters upon legislative action, except and in so far as it might be necessary for the purpose of distributing between the States and the central government the full content of legislative power. The history of their country had not taught them the need of provisions directed to the control of the legislature itself."
[3]Dixon, "Two Constitutions Compared", in Woinarski, Jesting Pilate and Other Papers and Addresses, (1965) 100 at 102.
4 Sir Owen Dixon found a need to explain to American lawyers the scarcity in the Australian Constitution of formal guarantees of rights and freedoms which they associated with the idea of "constitutional rights". That is not to say that the Constitution contains no guarantees or protections of individual rights, express or implied. Yet it reflects a high level of acceptance of what Barwick CJ called "the notion of the sovereignty of Parliament in the scheme of government". Nowhere is this more plainly illustrated than in the extent to which the Constitution left it to Parliament to prescribe the form of our system of representative democracy[4].
[4]Mulholland v Australian Electoral Commission (2004) 220 CLR 181 at 188 [6].
5 Important features of our system of representative democracy, such as compulsory voting, election of members of the House of Representatives by preferential voting, and proportional representation in the Senate, are the consequence of legislation, not constitutional provision. One striking example concerns a matter which the framers deliberately left to be dealt with by Parliament: female suffrage. The Constitution, in s 128, refers to States "in which adult suffrage prevails." In 1901, adult suffrage meant the franchise for women as well as men. Quick and Garran, referring to the Convention Debates, noted "the difficulty as to women's suffrage" which was taken into account in the wording of s 128[5]. Another example is voting by Aboriginal people, which remained an issue not fully resolved until the second half of the twentieth century.
[5]Quick and Garran, The Annotated Constitution of the Australian Commonwealth, reprinted ed (1976) at 987.
6 The combined effect of ss 51(xxxvi), 8 and 30 is that Parliament may make laws providing for the qualification of electors. That Australia came to have universal adult suffrage was the result of legislative action. Universal suffrage does not exclude the possibility of some exceptions. The Oxford English Dictionary says that the term means "the right of all adults (with minor exceptions) to vote in political elections."[6] Among countries which now have universal suffrage there are observable differences in the exceptions that are accepted, but there is also a broad agreement as to the kinds of exception that would not be tolerated. Could Parliament now legislate to remove universal adult suffrage? If the answer to that question is in the negative (as I believe it to be) then the reason must be in the terms of ss 7 and 24 of the Constitution, which require that the senators and members of the House of Representatives be "directly chosen by the people" of the State or the Commonwealth respectively. In 1901, those words did not mandate universal adult suffrage. In 1901, the words "foreign power" in s 44(i) did not include the United Kingdom, yet in Sue v Hill[7] this Court held that, by reason of changes in Australia's relations with the United Kingdom and in national and international circumstances over the intervening period, they had come to include the United Kingdom. The meaning of the words "foreign power" did not change, but the facts relevant to the identification of the United Kingdom as being included in or excluded from that meaning had changed.
[6]Concise Oxford English Dictionary, 11th ed (2004) at 1579.
[7](1999) 199 CLR 462.
7 In McKinlay[8], McTiernan and Jacobs JJ said that "the long established universal adult suffrage may now be recognized as a fact". I take "fact" to refer to an historical development of constitutional significance of the same kind as the developments considered in Sue v Hill. Just as the concept of a foreign power is one that is to be applied to different circumstances at different times, McTiernan and Jacobs JJ said that the words "chosen by the people of the Commonwealth" were to be applied to different circumstances at different times. Questions of degree may be involved. They concluded that universal adult suffrage was a long established fact, and that anything less could not now be described as a choice by the people. I respectfully agree. As Gummow J said in McGinty v Western Australia[9], we have reached a stage in the evolution of representative government which produces that consequence. I see no reason to deny that, in this respect, and to this extent, the words of ss 7 and 24, because of changed historical circumstances including legislative history, have come to be a constitutional protection of the right to vote. That, however, leaves open for debate the nature and extent of the exceptions. The Constitution leaves it to Parliament to define those exceptions, but its power to do so is not unconstrained. Because the franchise is critical to representative government, and lies at the centre of our concept of participation in the life of the community, and of citizenship, disenfranchisement of any group of adult citizens on a basis that does not constitute a substantial reason for exclusion from such participation would not be consistent with choice by the people[10]. To say that, of course, raises questions as to what constitutes a substantial reason, and what, if any, limits there are to Parliament's capacity to decide that matter.
[8](1975) 135 CLR 1 at 36.
[9](1996) 186 CLR 140 at 286-287.
[10]cf McGinty v Western Australia (1996) 186 CLR 140 at 170 per Brennan CJ.
8 It is difficult to accept that Parliament could now disenfranchise people on the ground of adherence to a particular religion. It could not, as it were, reverse Catholic emancipation. Ordinarily there would be no rational connection between religious faith and exclusion from that aspect of community membership involved in participation, by voting, in the electoral process. It is easy to multiply examples of possible forms of disenfranchisement that would be identified readily as inconsistent with choice by the people, but other possible examples might be more doubtful. An arbitrary exception would be inconsistent with choice by the people. There would need to be some rationale for the exception; the definition of the excluded class or group would need to have a rational connection with the identification of community membership or with the capacity to exercise free choice. Citizenship, itself, could be a basis for discriminating between those who will and those who will not be permitted to vote[11]. Citizens, being people who have been recognised as formal members of the community, would, if deprived temporarily of the right to vote, be excluded from the right to participate in the political life of the community in a most basic way. The rational connection between such exclusion and the identification of community membership for the purpose of the franchise might be found in conduct which manifests such a rejection of civic responsibility as to warrant temporary withdrawal of a civic right.
[11]Bennett v Commonwealth (2007) 81 ALJR 971; 235 ALR 1.
9 This brings me to the issue in the present case. The facts, the legislation, and the historical background appear from the reasons of Gummow, Kirby and Crennan JJ ("the joint reasons"). Since 1902, when the Commonwealth Parliament first legislated with respect to the franchise, the legislation always provided that, along with persons of unsound mind and persons attainted of treason, prisoners of certain kinds were not entitled to vote. The rationale for excluding persons of unsound mind is obvious, although the application of the criterion of exclusion may be imprecise, and could be contentious in some cases. The rationale is related to the capacity to exercise choice. People who engage in acts of treason may be regarded as having no just claim to participate in the community's self-governance. It will be necessary to return to the rationale for excluding prisoners. First, however, the changes in the exclusion over the years should be noted. Not all people in prison are serving sentences of imprisonment. Some are awaiting trial. They are not covered by any of the exclusions. There was some discussion in argument concerning fine defaulters. It was suggested that, perhaps depending on the precise terms of the orders made against them, they also would not be excluded. It is unnecessary to pursue that question. From 1902 until 1983, the exclusion was of convicted persons under sentence or subject to be sentenced for an offence punishable by imprisonment for one year or longer. From 1983 until 1995, the reference to one year was replaced by five years. From 1995 to 2004, the reference to imprisonment for an offence punishable by imprisonment for five years or longer was altered to serving a sentence of five years or longer. From 2004 to 2006, the period of five years was altered to three years. In 2006, Parliament enacted s 93(8AA) of the Commonwealth Electoral Act 1918 (Cth) which provides that a person who is serving a sentence of imprisonment for an offence against the law of the Commonwealth or of a State or Territory is not entitled to vote at any Senate election or House of Representatives election. The plaintiff's challenge to the validity of s 93(8AA) gives rise to the primary issue in the present case. If it succeeds, there is a question whether the previous (three-year) regime still validly applies.
10 What is the rationale for the exclusion of prisoners? Two possibilities may be dismissed. First, the mere fact of imprisonment is not of itself the basis of exclusion. According to the Australian Bureau of Statistics, at 30 June 2006 there were 25,790 prisoners (sentenced and unsentenced) in Australian prisons. Unsentenced prisoners (typically persons on remand awaiting trial) comprised 22 per cent (5,581) of the total prisoner population[12]. They have the right to vote. We were informed that they do so either by postal voting or by the visit to prisons of mobile voting booths. Accordingly, there is nothing inherently inconsistent between being in custody and voting; even under the current exclusion, more than one-fifth of prisoners vote. Secondly, exclusion by federal law from voting cannot be justified as an additional punishment. The great majority of prisoners in Australia are people who have been sentenced by State courts for offences against State law. The States bear the principal responsibility for the administration of criminal justice. There would be serious constitutional difficulties involved in seeking to justify a federal law such as s 93(8AA) as an additional punishment upon State offenders; especially upon State offenders who had previously been convicted and sentenced under State law. I do not intend to suggest that there would be no difficulties about treating it as additional punishment for offences against federal or territorial law, but the position of State offenders is sufficient to demonstrate the problem with treating it as punishment at all.
[12]Australian Bureau of Statistics, Prisoners in Australia, 2006, Report No 4517.0.
11 The rationale for the exclusion from the franchise of some prisoners, that is, those who have been convicted and are serving sentences, either of a certain duration or of no particular minimum duration, must lie in the significance of the combined facts of offending and imprisonment, as related to the right to participate in political membership of the community. The combination is important. Just as not all prisoners are excluded, even under s 93(8AA), from voting, not all persons convicted of criminal offences are excluded. Non-custodial sentences do not attract the exclusion. A pecuniary penalty, no matter how heavy, does not lead to loss of the vote. Since it is only offences that attract a custodial sentence that are involved, this must be because of a view that the seriousness of an offence is relevant, and a custodial sentence is at least a method, albeit imperfect, of discriminating between offences for the purpose of marking off those whose offending is so serious as to warrant this form of exclusion from the political rights of citizenship.
12 Since what is involved is not an additional form of punishment, and since deprivation of the franchise takes away a right associated with citizenship, that is, with full membership of the community, the rationale for the exclusion must be that serious offending represents such a form of civic irresponsibility that it is appropriate for Parliament to mark such behaviour as anti-social and to direct that physical separation from the community will be accompanied by symbolic separation in the form of loss of a fundamental political right. The concept of citizenship has itself evolved in Australian law[13]. The preamble to the Australian Citizenship Act 2007 (Cth) declares that Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations. The reference to the reciprocity of rights and obligations is important in the context of membership of the community. Serious offending may warrant temporary suspension of one of the rights of membership, that is, the right to vote. Emphasis upon civic responsibilities as the corollary of political rights and freedoms, and upon society's legitimate interest in promoting recognition of responsibilities as well as acknowledgment of rights, has been influential in contemporary legal explanation of exclusions from the franchise as consistent with the idea of universal adult suffrage.
[13]See Singh v Commonwealth (2004) 222 CLR 322; Hwang v Commonwealth (2005) 80 ALJR 125; 222 ALR 83; Brazil, "Australian Nationality and Immigration" in Ryan, International Law in Australia, 2nd ed (1984) 210; Rubenstein, Australian Citizenship Law in Context, (2002).
13 In Sauvé v Canada (Chief Electoral Officer)[14], Gonthier J cited a passage in a work of the American constitutional law scholar, Professor Tribe[15], who wrote:
"Every state, as well as the federal government, imposes some restrictions on the franchise. Although free and open participation in the electoral process lies at the core of democratic institutions, the need to confer the franchise on all who aspire to it is tempered by the recognition that completely unlimited voting could subvert the ideal of popular rule which democracy so ardently embraces. Moreover, in deciding who may and who may not vote in its elections, a community takes a crucial step in defining its identity."
[14][2002] 3 SCR 519 at 585 [119].
[15]Tribe, American Constitutional Law, 2nd ed (1988) at 1084.
14 Gonthier J made the point[16] that it is legitimate for society to curtail the vote temporarily of people who have demonstrated a great disrespect for the community by committing serious crimes, on the basis that civic responsibility and respect for the rule of law are prerequisites to democratic participation. This, he said, reinforces the significance of the relationship between individuals and their community when it comes to voting.
[16][2002] 3 SCR 519 at 583-584 [116], [117].
15 The litigation in Sauvé concerned an issue similar to the present, but the issue arose under a different legal regime. The Canadian Charter of Rights and Freedoms, in s 3, guarantees every citizen the right to vote. Section 1, however, permits "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." This qualification requires both a rational connection between a constitutionally valid objective and the limitation in question, and also minimum impairment to the guaranteed right[17]. It is this minimum impairment aspect of proportionality that necessitates close attention to the constitutional context in which that term is used. No doubt it is for that reason that the parties in the present case accepted that Sauvé (like the case of Hirst discussed below) turned upon the application of a legal standard that was different from the standard relevant to Australia. The Supreme Court of Canada had previously held that a blanket ban on voting by prisoners, regardless of the length of their sentences, violated the Charter[18]. The legislature changed the law to deny the right to vote to all inmates serving sentences of two years or more. Dividing five-four, the Supreme Court of Canada again held that the legislation violated the Charter. The central issue was whether the s 1 justification (involving the minimum impairment standard) had been made out.
[17]See Mulholland v Australian Electoral Commission (2004) 220 CLR 181 at 197-199 [33]-[38]; Sauvév Canada (Chief Electoral Officer) [2002] 3 SCR 519 at 534-535 [7].
[18]Sauvé v Canada (Attorney General) [1993] 2 SCR 438.
16 The United Kingdom has for many years had legislation which disenfranchises all convicted prisoners. The European Court of Human Rights, in Hirst v United Kingdom (No 2)[19], by majority, held that the automatic blanket ban imposed on all convicted prisoners violated Art 3 of Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms. The majority accepted that the United Kingdom law pursued the legitimate aim of enhancing civic responsibility and respect for the rule of law by depriving those who had breached the basic rules of society of the right to have a say in the way such rules were made for the duration of their sentence. However, they concluded that the measure was arbitrary in applying to all prisoners, and lacked proportionality (which in this context also required not only a rational connection between means and ends but also the use of means that were no more than necessary to accomplish the objective), even allowing for the margin of appreciation to be extended to the legislature[20]. We were informed by counsel that the United Kingdom's response to the decision has not yet been decided.
[19](2006) 42 EHRR 41.
[20]See de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 at 80.
17 There is a danger that uncritical translation of the concept of proportionality from the legal context of cases such as Sauvé or Hirst to the Australian context could lead to the application in this country of a constitutionally inappropriate standard of judicial review of legislative action. Human rights instruments which declare in general terms a right, such as a right to vote, and then permit legislation in derogation of that right, but only in the case of a legitimate objective pursued by means that are no more than necessary to accomplish that objective, and give a court the power to decide whether a certain derogation is permissible, confer a wider power of judicial review than that ordinarily applied under our Constitution. They create a relationship between legislative and judicial power significantly different from that reflected in the Australian Constitution, and explained at the commencement of these reasons. The difference between the majority and minority opinions in both Sauvé and Hirst turned largely upon the margin of appreciation which the courts thought proper to allow the legislature in deciding the question of proportionality. Neither side in the present litigation suggested that this jurisprudence could be applied directly to the Australian Constitution. Even so, aspects of the reasoning are instructive.
18 To return to Sauvé, Gonthier J, with whom L'Heureux-Dubé, Major and Bastarache JJ agreed, and who favoured upholding the legislation disenfranchising prisoners serving sentences of two years or more, related the disqualification to the idea of citizenship. He said[21]:
"The disenfranchisement of serious criminal offenders serves to deliver a message to both the community and the offenders themselves that serious criminal activity will not be tolerated by the community. In making such a choice, Parliament is projecting a view of Canadian society which Canadian society has of itself. The commission of serious crimes gives rise to a temporary suspension of this nexus: on the physical level, this is reflected in incarceration and the deprivation of a range of liberties normally exercised by citizens and, at the symbolic level, this is reflected in temporary disenfranchisement. The symbolic dimension is thus a further manifestation of community disapproval of the serious criminal conduct." (Emphasis added)
[21][2002] 3 SCR 519 at 585 [119].
19 Those observations apply also to Australia. It is consistent with our constitutional concept of choice by the people for Parliament to treat those who have been imprisoned for serious criminal offences as having suffered a temporary suspension of their connection with the community, reflected at the physical level in incarceration, and reflected also in temporary deprivation of the right to participate by voting in the political life of the community. It is also for Parliament, consistently with the rationale for exclusion, to decide the basis upon which to identify incarcerated offenders whose serious criminal wrongdoing warrants temporary suspension of a right of citizenship. I have no doubt that the disenfranchisement of prisoners serving three-year sentences was valid, and I do not suggest that disenfranchisement of prisoners serving sentences of some specified lesser term would necessarily be invalid. The specification of a term reflects a judgment by Parliament which marks off serious criminal offending, and reflects the melancholy fact that not all sentences of imprisonment necessarily result from conduct that falls into that category.
20 That fact is also reflected in one provision of the Constitution itself. Section 44 deals with the disqualification of senators and members of the House of Representatives. The section disqualifies a person who "has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer". I do not suggest that, by implication, this imposes a lower limit on Parliament's capacity to disqualify voters. There is, of course, an incongruity in the fact that the current legislation, in the relevant respect, imposes stricter standards upon eligibility to be a voter than the Constitution imposes upon eligibility to be a senator or a member of the House of Representatives. The point, however, is that s 44 recognises that the mere fact of imprisonment, regardless of the nature of the offence or the length of the term, does not necessarily indicate serious criminal conduct. That was so in 1901, and it remains so today.
21 One of the major problems currently affecting the administration of criminal justice, in Australia and elsewhere, is that of the short-term prison sentence, an expression which is normally used to refer to sentences of six months or less. In a 2001 report, the New South Wales Legislative Council's Select Committee on the Increase in Prisoner Population recommended that the government consider and initiate public consultation in relation to the abolition of sentences of six months or less[22]. The Bureau of Crime Statistics and Research was asked to estimate the impact on the prison system of such abolition. In 2000-2001, offenders sentenced to less than six months accounted for 65 per cent of all persons sentenced to prison by New South Wales adult criminal courts for that year. They are a much lower percentage of the total prison population but, for obvious reasons, the turnover is greater. According to the Bureau, it was estimated that, if all those who currently received sentences of six months or less were instead given non-custodial penalties, the number of new prisoners received in New South Wales prisons would drop from about 150 per week to about 90 per week[23]. In 2004, the New South Wales Sentencing Council reported on the same topic[24]. Short-term sentences were not abolished. In 2007, the Judicial Commission of New South Wales recorded that "sentences of six months or less, usually imposed by lower courts, have a significant impact on the prison population."[25] Section 5(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) reflects a legislative concern to attempt to limit the number of short sentences. Western Australian legislation has gone further[26]. In England, short-term sentences were significantly affected by ss 181-195 of the Criminal Justice Act 2003 (UK)[27].
[22]New South Wales, Legislative Council, Select Committee on the Increase in Prisoner Population, Final Report, (2001) at xvii.
[23]Lind and Eyland, "The impact of abolishing short prison sentences", (2002) 73 Crime and Justice Bulletin 1 at 5.
[24]New South Wales Sentencing Council, Abolishing Prison Sentences of 6 Months or Less, (2004).
[25]Judicial Commission of New South Wales, Full-time imprisonment in New South Wales and other jurisdictions: A national and international comparison, (2007) at 8.
[26]Sentencing Legislation Amendment and Repeal Act 2003 (WA) s 33.
[27]Ashworth, Sentencing and Criminal Justice, 4th ed (2005) at 271.
22 As a matter of sentencing practicality, in the case of short-term sentences the availability of realistic alternatives to custody is of particular importance. If an offence is serious enough to warrant a sentence of imprisonment for a year or more, the likelihood is that the sentencing judicial officer will have formed the view that there was no serious alternative to a custodial sentence. In most Australian jurisdictions, there is a legislative requirement to treat imprisonment as a last resort when imposing a penalty[28]. More than 95 per cent of short-term sentences are imposed by magistrates[29]. The availability, in all the circumstances of a particular case, of other sentencing options such as fines, community service, home detention, or periodic detention may be critical. Relevant circumstances may include the personal situation of the offender, or the locality. In the case of offenders who are indigent, or homeless, or mentally unstable, the range of practical options may be limited. In rural and regional areas, the facilities and resources available to support other options also may be limited. In its June 2004 Report, made pursuant to ss 100J(1)(a) and (d) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the New South Wales Sentencing Council recorded that the Chief Magistrate "acknowledged the unavailability of uniform sentencing options throughout NSW" and "clearly demonstrated that alternatives to sentences of full-time imprisonment are not equally distributed across the State."[30] Practical considerations of this kind give particular meaning to "disadvantaged"[31]. I do not suggest these problems are peculiar to New South Wales. I refer to it because it is the largest jurisdiction. A study published in 2002 examined the types of offence for which people were serving short terms of imprisonment in New South Wales[32]. Theft (excluding robbery) was the most common offence. Then followed breaches of court orders, assault, and driving or traffic offences.
[28]eg Crimes Act 1914 (Cth), s 17A; Crimes (Sentencing Procedure) Act 1999 (NSW), s 5(1); Sentencing Act 1991 (Vic), s 5(4); Criminal Law (Sentencing) Act 1988 (SA), s 11(1)(a)(iv); Sentencing Act 1995 (WA), s 6(4)(a); Penalties and Sentences Act 1992 (Qld), s 9(2)(a).
[29]Keane, Poletti and Donnelly, "Common Offences and the Use of Imprisonment in the District and Supreme Courts in 2002", (2004) 30 Sentencing Trends and Issues 1 at 3.
[30]New South Wales Sentencing Council, How Best to Promote Consistency in Sentencing in the Local Court, (2004) at 59.
[31]See New South Wales, Legislative Council, Standing Committee on Law and Justice, Community based sentencing options for rural and remote areas and disadvantaged populations, (2006).
[32]Lind and Eyland, "The Impact of Abolishing Short Term Prison Sentences", (2002) 73 Crime and Justice Bulletin 1.
23 The adoption of the criterion of serving a sentence of imprisonment as the method of identifying serious criminal conduct for the purpose of satisfying the rationale for treating serious offenders as having severed their link with the community, a severance reflected in temporary disenfranchisement, breaks down at the level of short-term prisoners. They include a not insubstantial number of people who, by reason of their personal characteristics (such as poverty, homelessness, or mental problems), or geographical circumstances, do not qualify for, or, do not qualify for a full range of, non-custodial sentencing options. At this level, the method of discriminating between offences, for the purpose of deciding which are so serious as to warrant disenfranchisement and which are not, becomes arbitrary.
24 The step that was taken by Parliament in 2006 of abandoning any attempt to identify prisoners who have committed serious crimes by reference to either the term of imprisonment imposed or the maximum penalty for the offence broke the rational connection necessary to reconcile the disenfranchisement with the constitutional imperative of choice by the people.
25 I would uphold the challenge to the validity of s 93(8AA). I have already indicated that in my view the previous legislation was valid. For the reasons given in the joint reasons it continues to apply.
26 For these reasons, I joined in the order made on 30 August 2007.
27 GUMMOW, KIRBY AND CRENNAN JJ. Section 28 of the Constitution stipulates that unless sooner dissolved by the Governor-General every House of Representatives shall continue for three years from the first meeting of the House. Part III (with respect to the House) and Part II (with respect to the Senate) make further provision with respect to elections and s 57 deals with double dissolutions.
28 Part VI (ss 81-92) of the Commonwealth Electoral Act 1918 (Cth) ("the Electoral Act") provides for the establishment and maintenance of a roll of electors for each State and Territory and for Division and Subdivision rolls.
29 Part VII (ss 93-97) deals with qualifications and disqualifications for enrolment and for voting. In particular, s 93 specifies those entitled to enrolment (persons who have attained 18 years and are citizens or a member of a closed class of British subjects) and, with certain exceptions, provides that an elector whose name is so enrolled is entitled to vote at Senate and House of Representatives elections. The provisions with respect to entitlement represent the culmination of the movement for universal suffrage. Over time the cry "one man one vote" came to include women, Australians of indigenous descent, and those aged at least 18 years. The provision in s 93 for exceptions reflects the notion of disqualification, to protect the integrity of the electoral result from the exercise of the franchise by groups of voters sharing some characteristic considered to affect capacity to vote responsibly and independently.
30 Two of these groups singled out for exclusion in this way by s 93 are those incapable of understanding the nature and significance of enrolment and voting, by reason of unsoundness of mind, and those convicted of treason and treachery and not pardoned. This litigation concerns a third category, those convicted and serving their sentence, a class which includes the plaintiff.
31 The issues which arise on the Amended Special Case involve constraints which are said by the plaintiff to be derived from the text and structure of the Constitution and to render invalid certain of the amendments to the Electoral Act made by the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth) ("the 2006 Act"). The relevant provisions of the 2006 Act commenced on 22 June 2006. If the plaintiff makes good her principal submission respecting the 2006 Act, consequential issues will arise as to the identification and effect of surviving provisions of the Electoral Act in their unamended form.
32 What follows are our reasons for supporting the order with respect to the Amended Special Case which was made on 30 August 2007.
The facts
33 The plaintiff was born in 1958 and is an Australian citizen of indigenous descent. She is enrolled for the Federal Division of Kooyong in Victoria, is of sound mind and capable of understanding the nature and significance of voting, and has never been convicted of treason or treachery. However, in 2004 the plaintiff was convicted in the County Court of Victoria on five counts of offences under the Crimes Act 1958 (Vic) and is currently serving a total effective sentence of six years imprisonment imposed by that court[33]. She will not be eligible for parole until 22 August 2008. The plaintiff asserts the invalidity of provisions now found in the Electoral Act the effect of which is to deny what otherwise would be her entitlement to vote at any Senate election or House of Representatives election held before 22 August 2008. Subject to one issue considered later in these joint reasons[34] there is no doubt respecting the standing of the plaintiff.
[33]The plaintiff was convicted of the offences of burglary (count 1), theft (count 2), conduct endangering persons (count 3), and causing serious injury negligently (counts 4 and 5). The plaintiff was sentenced to three years imprisonment on count 4, two years on each of counts 1 and 3 and to 12 months on each of counts 2 and 5. Allowances for concurrency and cumulation resulted in the total effective sentence of six years.
[34]At [99].
34 The first defendant, the Electoral Commissioner, is the chief executive officer of the Australian Electoral Commission established by s 6 of the Electoral Act. The first defendant appeared by senior counsel and made submissions respecting the administration of the Electoral Act. The active opposition to the plaintiff's case was provided by the second defendant, the Commonwealth, with the support of the Attorneys-General of New South Wales and of Western Australia as interveners.
The 2006 Act
35 The nature of the relevant changes made to the Electoral Act by the 2006 Act appear from the following passage in the Explanatory Memorandum to the Bill for the 2006 Act:
"Currently prisoners serving a sentence of three years or longer are not entitled to enrol and vote. These persons are removed from the roll by objection following receipt of information from the prison authorities. Prisoners serving a sentence of less than three years are entitled to remain enrolled or if unenrolled, apply for enrolment.
The proposed amendments will apply such that all prisoners serving a sentence of full-time detention will not be entitled to vote, but may remain on the roll, or if unenrolled apply for enrolment. However, they will not appear on a certified list or be identifiable as prisoners on the public roll. Those serving alternative sentences such as periodic or home detention, as well as those serving a non-custodial sentence or who have been released on parole, will still be eligible to enrol and vote."
36 On 30 June 2006 there were 20,209 prisoners in Australian prisons who were serving a sentence; 24 per cent of the prison population was indigenous and the percentage varied across Australia, from 82 per cent in the Northern Territory to six per cent in Victoria. Some 35 per cent of prisoners were serving a term of two years or less.
37 Before the changes made by the 2006 Act, s 93(8) and s 93(8AA) of the Electoral Act stated:
"93(8)A person who:
(a)by reason of being of unsound mind, is incapable of understanding the nature and significance of enrolment and voting; or
(b)is serving a sentence of 3 years or longer for an offence against the law of the Commonwealth or of a State or Territory; or
(c)has been convicted of treason or treachery and has not been pardoned;
is not entitled to have his or her name placed on or retained on any Roll or to vote at any Senate election or House of Representatives election.
(8AA)Paragraph (8)(b) applies whether the person started serving the sentence before, on or after the commencement of Schedule 1 to the Electoral and Referendum Amendment (Prisoner Voting and Other Measures) Act 2004."
38 Item 14 of Sched 1 to the 2006 Act stated of par (b) of s 93(8), "Repeal the paragraph". Item 15 dealt with sub-s (8AA) of s 93 and stated:
"Repeal the subsection, substitute:
(8AA)A person who is serving a sentence of imprisonment for an offence against the law of the Commonwealth or of a State or Territory is not entitled to vote at any Senate election or House of Representatives election."
The phrase "sentence of imprisonment" is defined in s 4(1A) of the Electoral Act[35] as follows:
"(1A)For the purposes of this Act, a person is serving a sentence of imprisonment only if:
(a)the person is in detention on a full-time basis for an offence against a law of the Commonwealth or a State or Territory; and
(b)that detention is attributable to the sentence of imprisonment concerned." (emphasis in original)
[35]Inserted by Item 4 of Sched 1 to the 2006 Act.
39 Section 109 of the Electoral Act now requires the principal officer having control of the prisons and gaols of a State or Territory to provide to the Australian Electoral Officer information respecting persons serving a sentence of imprisonment. Paragraph (c) of s 208(2) excludes from the certified lists of voters prepared by the Electoral Commissioner those voters to whom s 93(8AA) applies. Those voters are also excluded from the operation of s 221(3) which makes the state of the electoral rolls in force at the time of an election conclusive evidence of the right to vote as an elector.
The plaintiff's case
40 The plaintiff challenges the validity of those provisions of the 2006 Act which made the changes to the Electoral Act described above, in particular the inclusion of s 93(8AA). The grounds upon which she asserts invalidity involve the following four alternative propositions: first, whilst ss 8 and 30 of the Constitution speak of the "qualification" of electors they do not speak of provisions for "disqualification" and the consequence of this omission is said to be that any legislation for disqualification must "satisfy the representative government criteria"; secondly, s 93(8AA) punishes persons such as the plaintiff who have been convicted under State laws and the Parliament has no power to legislate in that way; thirdly, it follows from the reasoning in Lange v Australian Broadcasting Corporation[36] that there is an implied freedom of political communication (or of political participation) which protects voting in federal elections, and that this is impermissibly burdened by the 2006 Act; finally, the 2006 Act impermissibly limits the operation of the system of representative (and responsible) government which is mandated by the Constitution.
[36](1997) 189 CLR 520.
41 The first three of these submissions may be considered immediately. As to the first, the distinction between qualification and disqualification, the following is to be said. Section 93 of the Electoral Act deals sequentially with those entitled to enrolment and those entitled to vote, and renders that entitlement to vote subject, among other provisions, to s 93(8AA); the phrase "qualification" when used in ss 8 and 30 of the Constitution is sufficiently broad to allow for reservations or exceptions to a qualification which otherwise is conferred by the law in question.
42 As to the second submission, respecting federal punishment for State offences, two points are to be made. First, the circumstance that the plaintiff is serving a sentence of imprisonment for offences against the law of Victoria supplies the factum upon which the federal law operates. Secondly, if the federal law otherwise be within power, as a law with respect to the qualification of electors, the nature of that factum does not deny to the law that character.
43 As to the third, for the reasons to be developed below, what is at stake on the plaintiff's case is not so much a freedom to communicate about political matters but participation as an elector in the central processes of representative government. It is this consideration which marks out as the appropriate ground for the decision in this case the plaintiff's fourth submission. To consideration of that submission we now turn, beginning with the relevant provisions of the Constitution.
The Constitution
44 Section 1 of the Constitution vests the legislative power of the Commonwealth in the Federal Parliament, which consists of the Queen, the Senate and the House of Representatives. Of s 1, together with ss 7, 8, 13, 24, 25, 28 and 30, the Court said in its joint judgment in Lange[37], and with reference to the description by Isaacs J in Federal Commissioner of Taxation v Munro[38] of the Constitution as concerned to advance representative government, that these provisions give effect to this purpose by "providing for the fundamental features of representative government".
[37](1997) 189 CLR 520 at 557.
[38](1926) 38 CLR 153 at 178.
45 The plaintiff's case proceeds on the footing that questions respecting the extent of the franchise and the manner of its exercise affect the fundamentals of a system of representative government[39]. However, it has been remarked in this Court that in providing for those fundamentals the Constitution makes allowance for the evolutionary nature of representative government as a dynamic rather than purely static institution[40]. Ultimately, the issues in the present case concern the relationship between the constitutionally mandated fundamentals and the scope for legislative evolution.
[39]See further, Mulholland v Australian Electoral Commission (2004) 220 CLR 181 at 190‑191 [14], 205‑207 [61]‑[65], 237‑238 [155]‑[157], 257‑258 [222]‑[223].
[40]McGinty v Western Australia (1996) 186 CLR 140 at 279‑280; Mulholland v Australian Electoral Commission (2004) 220 CLR 181 at 213‑214 [78].
46 On their face, the laws impugned by the plaintiff are supported by s 51(xxxvi) and by ss 8 and 30 of the Constitution; that is to say, as matters in respect of which the "Constitution makes provision until the Parliament otherwise provides". But the power granted the Parliament by s 51(xxxvi) itself is conferred, in accordance with the opening words of s 51, "subject to this Constitution".
47 Section 8 of the Constitution reads:
"The qualification of electors of senators shall be in each State that which is prescribed by this Constitution, or by the Parliament, as the qualification for electors of members of the House of Representatives; but in the choosing of senators each elector shall vote only once."
Section 30 states:
"Until the Parliament otherwise provides, the qualification of electors of members of the House of Representatives shall be in each State that which is prescribed by the law of the State as the qualification of electors of the more numerous House of Parliament of the State; but in the choosing of members each elector shall vote only once."
These provisions contain specific limitations upon the power of the Parliament to prescribe the franchise. There can be no plural voting (for example, by reference to the location of several parcels of real property owned by the elector) and the qualifications of electors cannot differ between the two legislative chambers.
48 Further, it appeared to be common ground (and correctly so) that these provisions were to be read not in isolation but with an appreciation both of the structure and the text of the Constitution. Reference may first be made to s 128. This requires submission of proposed laws for the alteration of the Constitution to be submitted to the electors qualified to vote for the election of members of the House of Representatives. Section 7 requires the Senate to be composed of Senators "directly chosen by the people of the State" and is to be read with the territories power in s 122[41]. Section 24, which also is to be read with s 122, requires that members of the House of Representatives "be composed of members directly chosen by the people of the Commonwealth".
[41]Queensland v The Commonwealth (1977) 139 CLR 585.
49 The Commonwealth correctly accepts that ss 7 and 24 place some limits upon the scope of laws prescribing the exercise of the franchise, and that in addition to the specific insistence upon direct choice by those eligible to vote, laws controlling that eligibility must observe a requirement that the electoral system as a whole provide for ultimate control by periodic popular election. However, the Commonwealth emphasised that whether the voting system has been so distorted as not to meet that requirement is a matter of permissible degree. The Commonwealth submitted that that degree was not exceeded by the 2006 Act, but it did not offer any particular criterion for the determination of such questions. However, in oral submissions, the Solicitor-General of the Commonwealth readily accepted that a law excluding members of a major political party or residents of a particular area of a State would be invalid; so also, despite prevalent attitudes in 1900, would be a law which now purported to exclude from the franchise persons of indigenous descent or bankrupts.
50 For her part, the plaintiff emphasised that a law which stipulates a criterion for disenfranchisement fixing upon service at the election date of any sentence of imprisonment operates in an arbitrary or capricious fashion, with no rational ground for the automatic exclusion from exercise of the popular franchise mandated by the Constitution, and would be invalid. She submitted that the 2006 Act was such a law.
51 Reference also should be made to s 44 of the Constitution. Among those incapable of being chosen or sitting as a senator or member is, as specified in s 44(ii), any person who:
"[i]s attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer".
The force here of the word "and" is to render conjunctive the reference to conviction and sentence[42]. The phrase "under sentence" is apt to include those who although sentenced to penal servitude may be at large under, for example, a licence or on parole[43].
[42]Nile v Wood (1988) 167 CLR 133 at 139.
[43]See Bullock v Dodds (1819) 2 B & Ald 258 [106 ER 361]; Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583 at 588‑589, 603‑605; Baker v The Queen (2004) 223 CLR 513 at 527‑528 [27]‑[29]; Rogers on Elections, 16th ed (1897), vol 1 at 201. In In the Matter of Jones (1835) 2 Ad & E 436 [111 ER 169] the Court of King's Bench held that habeas corpus would not issue to enable a freeholder, in custody upon conviction for a misdemeanor, to vote at an election for a member of the House of Commons to represent his county.
52 The Commonwealth submits that whatever implication or principle may be evident in the grounds in s 44(ii) for disqualification of senators and members, and of candidates for election, s 44(ii) is disconnected from consideration of the validity of the denial by s 93(8AA) of the exercise of the franchise. That submission should be rejected as being too wide.
53 Not only must the Constitution be read as a whole, but an understanding of its text and structure may be assisted by reference to the systems of representative government with which the framers were most familiar as colonial politicians. These do not necessarily limit or control the evolution of the constitutional requirements to which reference has been made. However, they help to explain the common assumptions about the subject to which the chosen words might refer over time. Why was express provision made in s 44(ii) for disqualification of those who might be elected to membership of the Senate or the House, but, as regards the exercise of the franchise such matters left by ss 8 and 30 to later legislation? Had the two subjects been linked in the Australasian colonial constitutions? What was the rationale in those constitutions for the disqualification by provisions of the kind later found in s 44(ii)?
54 The answers to these questions throw light upon the issues in the present case, particularly upon the broader submissions respecting impermissible distortions of the system of representative government established under the Constitution. Accordingly, it is to these questions that we now turn.
Disqualification under colonial constitutions of electors, candidates and members
55 With the development within the British Empire of representative systems of government it became necessary to deal with the matter of disqualification. An illustrative starting point is s 23 of what is known in Canada as the Constitutional Act 1791 (Imp)[44]. This separated Upper and Lower Canada and provided an elected assembly for each province. Section 23 dealt compendiously with disqualification as follows:
"That no Person shall be capable of voting at any Election of a Member to serve in such Assembly, in either of the said Provinces, or of being elected at any such Election, who shall have been attainted for Treason or Felony in any Court of Law within any of His Majesty's Dominions ..."
[44]31 Geo III c 31. See Belczowski v Canada [1992] 2 FC 440 at 458.
56 This criterion of disqualification reflected what was understood at the time to be the rules of the common law respecting both electors and candidates for the House of Commons[45]. With respect to candidates, the rule was put on the footing that persons attainted of treason and felony could not answer the description in the writs of election of knights, citizens and burgesses as being persons of discretion, in the sense of prudence and sound judgment[46]. As Blackstone put it, these persons were "unfit to fit anywhere [in the House of Commons]"[47]. With respect to electors, Blackstone referred to several old statutes which provided that persons convicted of perjury or subornation of perjury were incapable of voting at any election[48].
[45]Rogers on Elections, 16th ed (1897), vol 1 at 200; 17th ed (1895), vol 2 at 30‑31.
[46]Coke, Institutes of the Laws of England (1798), Pt 4, Ch 1 at 48; Comyns, A Digest of the Laws of England, 4th ed (1800), vol 5 at 185-187.
[47]Blackstone, Commentaries on the Laws of England (1769), bk 1, c 2 at 169.
[48]Blackstone, Commentaries on the Laws of England (1769), bk 1, c 2 at 167.
57 For reasons which do not immediately appear, but which may reflect both the law and customs of the British Parliament and some apprehension at Westminster respecting the character of the developing colonial societies, a further head of disqualification was created, first, it seems, in Canada with the Union Act 1840 (Imp)[49]. That union was imposed after the rebellion of 1837 and the subsequent report by Lord Durham and lasted until Confederation in 1867. Section 7 of the 1840 statute provided for the vacation of the seats of Legislative Councillors who were attainted of treason or convicted of felony "or of any infamous crime". Section 31(4) of the British North America Act 1867 (Imp)[50] carried over this provision to the vacation of the places of members of the Canadian Senate and it remains in the Canadian Constitution.
177 HEYDON J. The responses proposed by Hayne J to the questions asked are correct. His reasons for giving these responses are incontrovertible. Only the following additional points are made.
178 In the course of argument the Solicitor-General of the Commonwealth, no doubt understandably, made various concessions which were welcomed by the plaintiff. Some were express[149]. Some were implied[150]. Doubtless some are correct, and perhaps, for a variety of possible reasons, they are all correct, but, since they are concessions, they have not been the subject of contested argument, it is not necessary to decide whether they are correct, and anything said to flow from them is to that extent unsupported.
[149]See, for example, [49] above. Another is a concession that under present conditions persons over the age of 70 could not be excluded from voting.
[150]Thus he conceded the correctness of Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. Even if it is correct and is given full force – and it must be accepted as correct and given full force until a successful application is made for it to be overruled – it says nothing about the present problem, which, unlike the problem it considered, is not a problem about freedom of political communication. But it may serve as a warning about the difficulties of tests turning on whether legislation is "reasonably appropriate and adapted" to the fulfilment of a particular purpose, or equivalent tests, and a warning against too readily detecting tests of that kind in the Constitution.
179 The plaintiff's submissions contained many assumptions as to whether it would be possible now to narrow the franchise on the basis of race, age, gender, religion, educational standards or political beliefs, questions which no Australian legislator has ever dreamed of or is likely to dream of. Resolution of the present case does not call for any of these assumptions to be either made or tested[151]; and certainly none of them were tested. It is enough to say that narrowing the franchise in any of these ways may be highly undesirable; it does not follow that it is unconstitutional.
[151]For some discussion, see Goldsworthy, "Originalism in Constitutional Interpretation", (1997) 25 Federal Law Review 1 at 2-8, 39-47; Goldsworthy, "Interpreting the Constitution in its Second Century", (2000) 24 Melbourne University Law Review 677 at 698-699.
180 The plaintiff's key assumption was that it is a necessary but not sufficient condition for the validity of electoral laws that they maintain or widen the franchise: "one cannot wind the clock back". Thus, it was assumed, if an electoral law contracts the franchise it is invalid. Many think that one of the advantages of having a liberal democratic legislature, particularly when the legislators belong to political parties having different opinions on some issues, is its capacity to experiment, to test what does or does not work, to make up for unsatisfactory "advances" by carrying out prudent "retreats". That capacity stands in contrast to the tendency of totalitarian regimes to become gerontocratic and ossified, faithful to only one technique of government. It would be surprising if the Australian Constitution operated so as to inhibit the capacity of the legislature, having changed the electoral laws in a particular way, to restore them to their earlier form if that change was found wanting in the light of experience.
181 The plaintiff relied on the terms of, and various decisions about and commentaries on, certain foreign and international instruments – the International Covenant on Civil and Political Rights, the First Protocol of the European Convention on Human Rights, the Canadian Charter of Rights and Freedoms and the Constitution of South Africa. The plaintiff's primary arguments were fixed, as they had to be, on ss 7, 8, 24, 30 and 51(xxxvi) of the Constitution, and on implications from these provisions. It is thus surprising that the plaintiff submitted that those arguments were "strongly supported" by decisions under the last three instruments "which found that prisoner disenfranchisement provisions were invalid". It is surprising because these instruments can have nothing whatever to do with the construction of the Australian Constitution. These instruments did not influence the framers of the Constitution, for they all postdate it by many years. It is highly improbable that it had any influence on them. The language they employ is radically different. One of the instruments is a treaty to which Australia is not and could not be a party. Another of the instruments relied on by the plaintiff is a treaty to which Australia is a party, but the plaintiff relied for its construction on comments by the United Nations Human Rights Committee. If Australian law permitted reference to materials of that kind as an aid to construing the Constitution, it might be thought that the process of assessing the significance of what the Committee did would be assisted by knowing which countries were on the Committee at the relevant times, what the names and standing of the representatives of these countries were, what influence (if any) Australia had on the Committee's deliberations, and indeed whether Australia was given any significant opportunity to be heard. The plaintiff's submissions did not deal with these points. But the fact is that our law does not permit recourse to these materials. The proposition that the legislative power of the Commonwealth is affected or limited by developments in international law since 1900 is denied by most[152], though not all[153], of the relevant authorities – that is, denied by 21 of the Justices of this Court who have considered the matter, and affirmed by only one.
[152]Polites v The Commonwealth (1945) 70 CLR 60 at 69 per Latham CJ, 74 per Rich J, 75-76 per Starke J, 78 per Dixon J, 79 per McTiernan J and 81 per Williams J; Fishwick v Cleland (1960) 106 CLR 186 at 196-197 per Dixon CJ, McTiernan, Fullagar, Kitto, Menzies and Windeyer JJ; Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 551 per Brennan J; Horta v The Commonwealth (1994) 181 CLR 183 at 195 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ; Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 383-386 [95]-[101] per Gummow and Hayne JJ; AMS v AIF (1999) 199 CLR 160 at 180 [50] per Gleeson CJ, McHugh and Gummow JJ; The State of Western Australia v Ward (2002) 213 CLR 1 at 390-391 [961] per Callinan J; Al-Kateb v Godwin (2004) 219 CLR 562 at 589-594 [62]-[71] per McHugh J.
[153]Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 657-658 per Kirby J; Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 417-419 [166]-[167] per Kirby J; Al-Kateb v Godwin (2004) 219 CLR 562 at 622-630 [168]-[191] per Kirby J; cf Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365 at 424-426 [169]-[173] per Kirby J.
182 An aspect of the plaintiff's argument about arbitrariness was that a large proportion of prisoners serve a sentence of two years or less, and whether these prisoners lose the vote depends on the length of time they spend in prison and where that period falls in "the three year federal electoral cycle". In practice the cycle is much less than three years. Many federal elections within living memory have been held less than three years after the previous one, and the plaintiff asserted, plausibly, that over the whole history of Federation they have been held on average about every two years and four months. It would be strange if the constitutional validity of a restriction on the franchise rose and fell with executive decisions about the duration of parliaments.
183 Finally, the plaintiff submitted that it was not necessary for her to argue that any of the legislation in force before 2004 was invalid. But, despite the plaintiff's refusal to admit this unconditionally[154], the following conclusions flow if her contention is sound. One is that if legislation in the form of the 1902 Act came up for consideration now, it would be declared void. Another is that if federal legislation was enacted in the form of that which existed in New South Wales and Victoria in 1900 and came up for consideration now, it would be declared void. On the assumption (which it is appreciated not everyone shares) that, leaving aside special circumstances capable of satisfactory explanation[155], legislation which would be declared void in 2007 would also have been declared void in 1902 or at any time between those two dates, it would follow that federal statutes in the two forms just described would also have been declared void in 1902, and in any year since that date in which they were challenged. That in turn would mean that every federal election in our history apart from the first one would have been held under invalid electoral laws. These conclusions are so highly improbable that the contentions of the plaintiff which lead to them must be incorrect.
[154]The plaintiff submitted that her arguments about arbitrariness had less strength in relation to the "three-year regime" in force before 2006 and the "five-year regime" in force before 2004, but did not abandon her position that any regime would have elements of arbitrariness liable to invalidate it.
[155]For example Sue v Hill (1999) 199 CLR 462.