Mr Phil Lynch

Director, Human Rights Law Resource Centre

'Vickie Roach v The Commonwealth: Human Rights and Representative Democracy'

Well, thank you very much, Sue, for the kind introduction and thank you also, Judy, for your very powerful presentation.  It actually gives me a lot more, insight into and respect for what I’m just going to speak about, which is Vicki’s case because Vicki herself experienced many of the things that you talked about which makes her stand for human rights and justice all the more important and courageous, I think.  I’m going to start by telling you about Vicki before I turn to talk about the case itself because it is Vicki who is at the centre of this case, as is so often the case with the promotion and protection of fundamental human rights and courageous stands against erosion of those rights.  It is small people taking small steps in the way that Vicki did which can have remarkable ramifications. 

Vicki is currently 49 years of age.  She is an Aboriginal woman.  She is currently an inmate of the Dame Phyllis Frost Centre in Melbourne.  She is serving a minimum five year sentence for the offence of causing serious injury by negligence in a car accident.  One of the reasons that Vicki is in prison is because at the age of two she was removed from her family.  She regards herself as a member of the stolen generations.  She was removed into a variety of foster care settings and for the next 10, 15 years she was subject to various forms of abuse herself.  Unsurprisingly she turned to drugs and alcohol as a way of coping with that and again unsurprisingly developed quite an extensive criminal record.  And it was that that led to her being in the situation she is in, being incarcerated in the Dame Phyllis Frost Centre. 

In 2006 the Howard government having finally attained a majority in the Senate did what they had been ideologically disposed to doing for a very long time, which was disenfranchise prisoners entirely.  The treatment between 1901 and 1996 was towards expansion of the franchise.(i)  We saw over that 96 and 95 year period women being conferred with the right to vote, with Aboriginal and Torres Strait Islander people being conferred with the right to vote, and progressively more and more prisoners being conferred with the right to vote until the Howard government came to power in 1996.  At least in relation to prisoners, the Government started to restrict the franchise again, such that only prisoners serving sentences of less than five years were entitled to vote(ii), then an amendment was made in about 2001 such that only prisoners serving less than three years were entitled to vote(iii) and in 2006 with a Senate majority the final nail in the coffin - a blanket disenfranchisement of prisoners regardless of the offence that they committed, regardless of the term of imprisonment.(iv)

Vicki, having been alienated and disenfranchised in many ways throughout her life, saw this as a fundamental human rights issue.  Whilst in prison she completed not only her secondary education but also her masters degree.  She now has a masters in creative writing and has just started undertaking her PHD through Swinburne University in creative writing where she is writing about Aboriginal oral history and in particular the history of her own family.  Whilst in prison, she is also become very, I guess, politically aware and active.  In prison she is become a peer educator, providing guidance and mentoring, support, and healing to her fellow inmates, in particular her fellow indigenous inmates.  When the call came for someone to stand up for the rights of approximately ten thousand prisoners across Australia who were disenfranchised by this further restriction of the franchise in respect of prisoners, it was Vicki who courageously put up her hand.

And in what I think is an extremely eloquent and probably indicative of why she has been conferred with her masters of writing, she wrote a letter to ABC radio national, through which she articulated her reasons for taking this case.(v)   You will see from the slide she talks about the fact that prisoner disenfranchisement serves only to alienate us from society and ensure that upon exiting prison, a former prisoner feels no connection, commitment or loyalty to his or her community and may therefore not feel bound in respect of its laws or social morays.  She went on to say in that ABC radio national report that if we exclude prisoners from society by taking away their basic rights to political communication and condemn them as undesirables, how many other sections of society could become similarly marginalised and how many other rights could then be eroded on the same precept?

So that is why the right to vote is important to Vicki.  It is also important to Vicki because as an indigenous inmate, she is one of the many people disproportionately impacted by prison disenfranchisement.  Of the total Australian prison population of 25,000 about 25 per cent nationally are indigenous, which means that depending on the state you’re in you’re between 12 and 18 times more likely to be in custody if you’re an indigenous person and 30 times more likely to be in custody if you’re an indigenous child or young person.(vi)  Prison disenfranchisements have a very significantly disproportionate and discriminatory impact on the indigenous population.  In terms of the reasons why our centre saw that this was an important right to litigate, our broad mandate is the promotion and protection of human rights through law and this seemed to us to be a clear and blatant violation of the fundamental human right to vote and participate in public affairs, which is articulated as you will see in article 25 of the International Covenant on Civil and Political Rights.(vii)

Every citizen shall have the right to vote without discrimination and without having any unreasonable restrictions placed upon that right.  They will have that right to vote.  What also made this an important case is that not only human rights but common sense tells us for exactly the reasons that Judy is articulated, that our penitentiary system should be directed towards rehabilitation, social re-integration, healing, and restoration and not towards punishment and further exclusion and marginalisation.  It seemed to us that that is precisely what this kind of disenfranchisement did.  The challenge for us was, I guess, how do we enforce these rights that are clearly articulated under international human rights law in the Australian domestic system where we have no comprehensive constitutional or legislative protection of human rights.

The hooks that we found, ultimately, were sections 7 and 24 of the Constitution which required that the Houses of Parliament, the Senate and the House of Representatives, be directly chosen by the people.  Before I go on to talk about some of the legal argumentation and what the High Court found and what I think the case establishes, it is worthwhile I think understanding the rationale for which prisoners were disenfranchised, the reasons that the commonwealth articulated publicly and the reasons the commonwealth articulated in court because it was these arguments that we had to counter.  So what did the commonwealth say about why this legislation was necessary?  Well, the very first thing they said, certainly in the court of public opinion, was that prisoner disenfranchisement will be an additional disincentive to crime.  It will deter the commission of crime where imprisonment will not.

They could not argue that in court because it is unconstitutional.  That would involve the legislature in punishment contrary to chapter 3 of the Constitution so it was an argument they did not run in court, but certainly ran in the court of public opinion.  The primary argument they ran in the High Court was that there is in Australia a social contract.(viii)  It raises interesting issues in relation to the indigenous population who have never really bought into that contract and never had an opportunity to negotiate that contract which is a point that Ron Merkel very eloquently made to the High Court.  But on the commonwealth is account part of this social contract is that you conferred with certain rights.  Well, they’re not even really rights, they’re privileges or benefits.  The realisation of which or the enjoyment of which is conditional upon discharging certain civic responsibilities.  As a prisoner, by definition, you have not discharged your civic responsibilities, and therefore should not be conferred with the benefits of citizenship. 

The next argument that the commonwealth ran, the very circular argument that prisoner disenfranchisement is necessary to enhance and to maintain the integrity of the electoral process.  They said that for two reasons.  The first argument was that prisoners, by consequence of their incarceration, do not have access to adequate information to be able to exercise a meaningful choice, and therefore we should not demean the electoral process by conferring them with the opportunity to have an uneducated or uninformed say.(ix)  The second argument that they ran was that prisoner enfranchisement results in prisoners being a constituency, being a special interest group and that creates a political imperative to be soft on crime and to be soft on prisoners and we want to remove that dangerous imperative because that will criminalise democracy.(x) 

Nick Minchin did not see that there was any necessity to articulate a reason for prisoner disenfranchisement other than to say it passed the pub test.(xi)  Go straight down to your local pub, ask them if prisoners should vote, they’ll say no—always a good test of public policy.  Ultimately in the High Court the Solicitor General for the Commonwealth articulated or sought to defend prisoner disenfranchisement on the basis of what he called a multi-factorial test.  When pressed on what this multi-factorial test consisted of, what were the factors, he said there were a range of qualitative and quantitative factors.  At the end of the day, it is necessary to ensure that the way you construct the franchise does not distort things to the extent that parliament could no longer be said to be directly chosen by the people.  The High Court said but yes, what are the factors?(xii)  He could not really articulate the factors.  So the High Court took him through a range of examples and said well okay, under this multi-factorial test could you disenfranchise women now and the Solicitor General said no, no, qualitatively impermissible, that would be over 50 per cent, that would distort the franchise.

What about Aboriginal people?  No, no, two per cent is still too high.  Well, what about if you just disenfranchise Torres Strait Islanders and the solicitor general had to pause for a bit about this and said, well, it just would not happen.  Well, it has happened.  What made the judges really uncomfortable, and I think was the turning point for us, is they said well, what about age restrictions?  Could you increase the voting age from 18 to 21 and the solicitor general said yes, well you could.  And they said well, could you impose a cap on the voting age so that people over 70 could not vote?  They’re all approaching 70 as you know.  Some of them are about, you know, six months away.  The Solicitor General very uncomfortably said well yes you could, which I think was a substantial turning point for us.  In terms of the argument that we ran, we had to be reasonably creative and innovative in the arguments because you can not, unlike in other jurisdictions, simply say we have a right to vote and that the legislation impaired the right to vote, because under the Australian Constitution, there is no explicit right to vote.  In fact, there are very few explicit rights contained within it.

The arguments we ran were four fold.  The first was a textual argument.  We said that prisoner disenfranchisement is incompatible with sections 7 and 24 of the Constitution and in particular the requirements that the Houses of Parliament be directly chosen by the people.  We said that the use of the word “chosen” imported notions of capacity.  It was really capacity that was the only rational factor upon which disenfranchisement could be based.  It is on that basis that you could disenfranchise minors, you could disenfranchise people with a sever intellectual or psychiatric disability and so on.  But beyond that, any restriction would have to be demonstrably justifiable, rational, based in evidence and so on.  Our second argument was that disenfranchisement of prisoners was beyond the constitutional power of the Commonwealth.  The Constitution in a range of provisions talks about qualification of electors, but nowhere does it provide for disqualification of electors and we said it was therefore beyond power of the commonwealth to remove the right to vote for all prisoners.

We also based this argument on some of the statements that had been made in the court of public opinion by the Howard government—that disenfranchisement is in effect an additional punishment, and is also a punishment by the Commonwealth for violations of state law which is prohibited by chapter 3 of the Constitution.  Our final argument, which ties into the first argument, was that there is in Australia a recognised implied right to freedom of political communication, we said the right to vote is an exercise of political communication, it is the ultimate form of political communication. We also sought to further argue that there should be implied in the Constitution rights of political participation and political association and that disenfranchisement would further impair those rights.

Because this is the human rights law conference it is probably worth making a brief reference to the explicit human rights arguments we ran.  I should say there was quite a discussion amongst the team that ran the case, a very significant and committed team from Allens Arthur Robinson and a number of exceptional barristers from the Victorian bar led by Ron Merkel.  We had a lot of strategic discussion about how much we would make this a human rights case and ultimately decided that this was not the court before which to run an argument which drew substantially on international and comparative human rights law.  Certainly not the kind of court where you would run an argument that human rights, or international human rights is directly relevant to constitutional interpretation.  We did, however, run the argument that international human rights and comparative norms around human rights is relevant to identifying and articulating contemporary circumstances, values and contexts within which constitutional interpretation should occur and that is a reasonably well accepted, by most judges at least, doctrine of constitutional interpretation.

On of the sources upon which we drew was the jurisprudence of the UN Human Rights Committee under the International Covenant on Civil and Political Rights.  We drew both on the Committee’s general comment on article 25, right to public participation, and also on a number of their, concluding observations on State Parties that had themselves engaged in prisoner disenfranchisement.  We also drew on comparative jurisprudence from the European Court of Human Rights, the Supreme Court of Canada and the Constitutional Court of South Africa, all of which had struck down prisoner disenfranchisement provisions; albeit that they were able to do so in a much more straight forward way because in all of those jurisdictions there is, of course, a constitutionally enshrined right to vote and there is a well articulated test around permissible limitations on human rights, including the right to vote.

Well, as you probably know the decision ultimately was a four/two decision, the majority comprising Justices Gummow, Kirby and Crennan with the Chief Justice concurring and Justices Hayne and Heydon in descent.  The majority found that blanket disenfranchisement of prisoners was unconstitutional, therefore invalid and accordingly struck down the legislation(.xiii)  They did, however, uphold the validity of the thereby reinstated previous regime, such that prisoners serving sentences of three or more years remain disentitled to vote at the last election.(xiv)  I'll come back to the majority and the minority reasons shortly.  The practical impact of this was that of the Australian prison population of around 25,000 people there was around an additional 10,000 persons entitled to vote on November 24.  I hazard to say that there would not have been a whole lot of sympathy for the incumbent among that population, so I think Vicki can take some responsibility for some marginal seats for the outcome.  And of course she was not winning the right to vote back for herself because she is serving a term of more than three years, a minimum five year term.

She did win the right to vote back for about two and a half thousand of her fellow indigenous inmates.  As I said, the previous regime which provided that prisoners serving three or more years were disentitled to vote was upheld basically on the basis that that disenfranchisement was proportionate response to the commission of a serious crime.(xv)  But where you’ve got a blanket disenfranchisement there is absolutely not correlation between moral culpability and disenfranchisement, unlike in the case where a person is being convicted and sentenced for a serious crime.  I'll just talk through some of the reasons of the majority and the minority opinions and what the implications may be for human rights in Australia and in particular constitutional protection of human rights.

The reasons of the majority are very, I think, substantial and significant.  Ron Merkel calls Vicki the Eddie Mabo of electoral law.  The majority said that contemporary standards and values and historical legislative developments are relevant to constitutional interpretation and the impact of those developments, standards, values and all the norms is that the notions or the provisions that provide for direct choice of the people either according to Kirby, Crennan and Gummow, enshrine universal adult suffrage or alternatively the Chief Justices’ view they constitute constitutional protection of the right to vote.(xvi)  I do not really know what the difference is, either way they say that direct choice by the people is basically protection of the fundamental human right to vote.

They then go on to say that this is not an absolute right.(xvii)  It is a right that may be subject to limitation.(xviii)  And they articulated the test for the permissibility of those limitations—if you are going to disenfranchise people it must be for a substantial reason and the limitation must be appropriate and adapted, or alternatively proportionate to that substantial reason.(xix) The overriding test is compatibility and consistency with notions of representative government and democracy.  I’ve just extracted from the reasons of the majority, I think probably the essence of the judgment, where they talk about the existence and exercise of the franchise reflecting notions of citizenship and membership of the Australian federal body politic.  They also, whilst not explicitly acknowledging article 10 of the ICCPR, then talk about the fact that such notions are not extinguished by the mere fact of imprisonment.(xx)  Prisoners who are citizens and members of the Australian community remain so.  Their interest in and duty to their society and its governance survives incarceration. 

There are very few prisoners in Australia serving genuine life terms.(xxi)  Overwhelmingly prisoners at one stage or another will re-enter the community.  Therefore if for no other reason, we have a strong self interest in ensuring that re-emerging prisoners have a sense of engagement with their community, a sense of responsibility to the community and a capacity to discharge their responsibilities to the community and that is certainly not going to be achieved through policies which promote exclusion, marginalisation and disenfranchisement.  The reason that the minority make for depressing reading is due to the fact that they’re the minority.  Just to give you a flavour, Justice Heydon’s judgment starts off by saying that he agreed with the reasons of Justice Hayne, and as the other minority judge, “His reasons for giving these responses are incontrovertible”(xxii), well apart from the fact that four of the fellow judges have controverted them.  But anyway, that kind of sets the tone that resonates throughout the judgments of both Hayne and Heydon.

They talk about sections 7 and 24 of the Constitution and this notion of direct choice by the people as being an expression of generality.(xxiii)  It is not intended to convey a requirement for universal adult suffrage and they draw that conclusion by reference to drafting history.(xxiv)  Their words are that history, and in particular the drafting history predominantly the convention debates of 1891, provide the only certain guide to constitutional interpretation.(xxv)  So it is an incredibly historicist, originalist position.  It is quite remarkable.  It puts Australia way out of whack in terms of constitutional interpretation with the rest of the developed world, certainly the common law world.  The minority also absolutely repudiates and rejects any notion that international or comparative human rights may in any way be relevant to constitutional interpretation or even to the identification and the articulation of contemporary standards and values.(xxvi)  They’re quite scathing of our use of comparative jurisprudence and sometimes in a highly uneducated way.  It says no great amount for Justice Heydon’s lawyering skills that he really gets the boot into the U in Human Rights Committee in his judgment, but he confuses it with the UN that now largely discredited the U in the Human Rights Commission.  The U in Human Rights Committee of course is a body of independent experts, not comprised on member states.  He gets stuck into our reference to human rights committee jurisprudence by saying well, who are the member states that comprise this? Was Australia a member?(xxvii)  How did Australia vote? Well, for anyone who has done international law 101 they know that you’re asking all of the wrong questions, which is highly concerning when you’re talking about a High Court judge.

Justice Heydon also based his decision on the fact that the legislative drafting history is the only accurate guide to constitutional interpretation.  He states in response to the question as to whether it would be now possible to narrow the franchise on the basis of race, age, gender, religion, educational standards or political franchise that whilst it may be undesirable it does not follow that it is unconstitutional.(xxviii)  He also goes on to say, and it is ridiculous that the plaintiffs made these submissions because of course disenfranchisement on those kinds of grounds would never occur.(xxix)  Well, I think they probably all occurred at one stage or another.  Some of them until very recently.  In terms of what the judgement means for the future constitutional protection of human rights in Australia, I think the most substantial implication is for the very first time in Australian constitutional history, it has established the effective constitutional protection of the right to vote and I think that is a very substantial step forward. 

It has also established that the Commonwealth’s power to make laws with respect to the franchise, and more broadly to our system of representative government, is not an unfettered power.(xxx)  It is subject to limitations and that those limitations must be for a substantial reason.(xxxi)  They must be appropriate, adapted, proportionate and so on,(xxxii) which is not inconsistent with international human rights jurisprudence around limitations on rights pertaining to public participation and voting.(xxxiii)  Also I think significantly, certainly for the majority at least, we can derive the precedent that while the limitations on the Commonwealth’s constitutional power cannot be limited by direct reference to international human rights,  international human rights may, however, be relevant to the articulation of the standards and values by reference to which the Constitution itself shall be interpreted and thereby may indirectly act as a federal limitation on commonwealth constitutional and legislative powers.  So international human rights norms and jurisprudence can be relevant in that way.

I would just like to close again by acknowledging, I think, the contributions that Allens made to this case and the Victoria bar as well, all pro bono.  The lawyers in the case put in well over 2000 hours worth of pro bono work which is an incredibly significant contribution and says a huge amount for the legal and professional obligations of the Victorian profession.  I would also really like to acknowledge again Vicki’s courage and integrity.  She stood up not only for her rights but more broadly for the rights of fellow prisoners, of her indigenous inmates and more broadly for all people of good will who are interested in representative and accountable government and she did so with great courage and integrity.  She did so at significant risk of a substantial adverse costs order and that takes great courage, particularly when you think of the trauma that she has previously experienced.  And very, very appropriately I think that courage and integrity and commitment was recognised recently by her being conferred with the Tim McCoy Award which is an award conferred in relation to community lawyers and legal aid for a person or organisation who has made a substantial commitment to human rights and access to administration and justice, so a very appropriate acknowledgement of her contribution to all of our fundamental human rights in Australia.

i Jerome Davidson, ‘Inside outcasts: prisoners and the right to vote in Australia’ (2004).Information and Research Services, Parliamentary Library, Current Issues Brief No. 12 2003-04.
ii Commonwealth Electoral Act 1918(Cth) 
iii Electoral and Referendum Amendment Regulations (No. 2) 2001 (Cth)   
iv Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth).
v ‘Should Prisoners Be Allowed to Vote?’, ABC Radio National Law Report, 12 June 2007.
vi Roach v Electoral Commissioner [2007] HCA 43, 36.
vii International Covenant on Civil and Political Rights (16 December 1966) 999 UNTS 171, entered into force 23 March 1976 article 25.
viii Transcript of Proceedings, Roach v Electoral Commissioner (High Court of Australia, 13 June 2007).
ix Ibid.
x Ibid.
xiVictoria, Parliamentary Debates, Legislative Assembly, 24/06/04, Senator Nick Minchin.
xii Transcript of Proceedings, Roach v Electoral Commissioner  (High Court of Australia, 13 June 2007).
xiii Roach v Electoral Commissioner [2007] HCA 43, 104.
xiv Ibid.
xv Roach v Electoral Commissioner [2007] HCA 43, 101-02.
xvi Ibid 24.
xvii Ibid 155.
xviii Ibid.
xix Ibid 101.
xx Roach v Electoral Commissioner [2007] HCA 43, 10.
xxi ABS, Prisoners in Australia (2003) Australian Bureau of Statistics, Canberra.
xxii Roach v Electoral Commissioner [2007] HCA 43, 177.
xxiii Ibid 112.
xxiv Ibid 113.
xxv Ibid 122-127.
xxvi Ibid 164-166.
xxvii Roach v Electoral Commissioner [2007] HCA 43, 181.
xxviii Ibid 179.
xxix Ibid.
xxx Roach v Electoral Commissioner [2007] HCA 43, 49.
xxxi Roach v Electoral Commissioner [2007] HCA 43, 102.
xxxiii International Covenant on Civil and Political Rights (16 December 1966) 999 UNTS 171, entered into force 23 March 1976 article 25; Human Rights Committee, General Comment 25: The Right to Participate in Public Affairs, Voting Rights and the Right of Equal Access to Public Service (Article 25), [4 and 10] CCPR General Comment No. 25 (1996) UN Doc CCPR/C/21/Rev.1/Add.7.