Monday, June 11, 2007

Prisoners and the Right to Vote

Why, I wonder, does no one really object to the fact that prisoners in Australian jails cannot vote? I was talking about this to someone the other day and they could see no problem. Yet it worries me.

The right to vote is the most fundamental democratic right, the building block from which our whole structure grows. If the state can take this away, then (or so it seems to me) we have a problem.

My friend simply said that if someone had committed a crime and had been sent to jail then it was right that they lost the right to vote. But where do we draw the line?

To my mind, if the state can take the right away for reason x, then they can also do so for reason y.

The key thing is the principle. The right to vote is either absolute or it is not. If not, then the only thing we are debating is the circumstances in which the right may be taken away. I am sure that Mr Hitler could define many reasons why the right to vote should be limited.

Postscript 16 June

My thanks to people for their comments on this post. I see that Legal Eagle has put up a post linked to this issue that includes a link to the transcript of the High Court Hearings on the matter. It will be interesting to see how the Court rules.


ninglun said...

Couldn't agree more, Jim. Seems like a hangover from the convict past, doesn't it?

Jim Belshaw said...

You may well be right, Neil. I don't know the history of this one. Has it always been so? I must try to find out at some point.

ninglun said...

No, it is a development brought on by the "Liberal" government: . "Until recently all Australian prisoners serving sentences of less than only three years could vote in federal elections. In Aug 2004 Federal Parliament restricted the right to vote to those serving sentences of three years or less.

Now the coalition has barred all prisoners from voting in federal elections with the introduction late last year of the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act."

stephen clark said...

The ABC's Law report had quite a good coverage of this (Tuesday on Radio National)
I just don't get why we are not trying as hard as possible to encourage people to vote in order to safeguard democracy, rather than discourage those who would actually be most likely to fall off the edge.
Well, in reality, I probably do get it...but I wonder why the Libs (seems mainly to be them) really are so happy to disenfranchise people.

ninglun said...

Reference missing there: Prisoner Voting Rights.

Jim Belshaw said...

Neil and Stephen, thanks for your comments.

Stephen, oddly I did catch part of the program on my way to work this morning. I had completely missed the change to the rules promulgated by Mr Howard.

Without having thought all the issues through, I thought that the radio program in that part I heard did not focus properly on my core concern, the principle established by any restriction outside the core one laid down in the constitution.

Once it is accepted that a Government has the right to limit the franchise, then the only thing we are talking about is where to draw the line. And that line may be drawn by a strong Government in such a way as to suit itself.

I accept that there have been changes in perceptions about who can vote over time, but these have focused on extension of the franchise. To me at least, withdrawal of an existing right to vote once established is a very different issue.

Lexcen said...

Jim I can't agree with you for the following reasons. A person serving a jail (gaol) sentence has committed crimes against society. Whether he/she is in jail for reform and/or punishment (and that is a separate and big issue all on its own) jail implies loss of freedoms. These freedoms are taken away for a very good reason. I can't see how the freedom to vote can be valued above other freedoms whilst in jail.

Jim Belshaw said...

Lexcen, I will respond to your comment, but I have to get to work, so it will be tonight.

Lexcen said...

Just adding a paragraph on this topic from Wikipedia.
Many countries restrict the voting rights of convicted criminals. Some countries, and some U.S. states, also deny the right to vote to those convicted of serious crimes after they are released from prison. In some cases (e.g. the felony disenfranchisement laws found in many U.S. states) the denial of the right to vote is automatic on a felony conviction; in other cases (e.g. provisions found in many parts of continental Europe) the denial of the right to vote is an additional penalty that the court can choose to impose, over and above the penalty of imprisonment, such as in France or Germany. In the Republic of Ireland, prisoners are not specifically denied the right to vote, but are also not provided access to a ballot station, so are effectively disenfranchised. Canada allowed only prisoners serving a term of less than 2 years the right to vote, but this was found unconstitutional in 2002 by the Supreme Court of Canada in Sauvé v. Canada (Chief Electoral Officer), and all prisoners were allowed to vote as of the 2004 Canadian federal election. Some countries also disenfranchize people in psychiatric facilities.

Jim Belshaw said...

That's very interesting, Lexcen. It captures the variety in practice. The High Court transcript brings some of the issues out. I suspect that all this is worth a fuller discussion in due course just to tease out the issues.