The High Court is currently hearing a challenge to the validity of certain undemocratic provisions of the Commonwealth Electoral Act 1918 — those that prohibit sentenced prisoners from voting.
Part of the transcript of the hearing has been doing the rounds in legal circles since it appeared on the AustLII site. You will see why:
MR MERKEL: … I was going to say under section 93(8AA) the amending legislation defines “sentence of imprisonmentâ€?. That is at page 7. This was also a significant amendment because prior to this amendment there was a question about whether home detention or parole would be caught by the disqualification. So this amendment made it clear that you had to be in detention on a full-time basis. So that is in the extrinsic materials. So there was no question if someone on parole or on home detention would not be caught by the disqualification and that comes out as a result of that definition.
Can I take your Honours next to Part VIII of the Act starting at page 122 dealing with - - -
KIRBY J: So Paris Hilton would now be disqualified, but last week for a short time she would have been entitled to vote?
MR MERKEL: Yes, your Honour, and she would have been entitled if she were in Australia and an Australian citizen to be standing here unburdened by the five-year point at least.
KIRBY J: I just wanted you to know that I follow these things.
Heh. And they say the luvvies are out of touch.
Pardon me for splitting hairs, but that would be the Commonwealth Electoral Act 1918.
That’s not splitting hairs. There is no such Act of 1914! I had the Great War as a referent, and picked the wrong end…
Atticus:
If we are going to reform and rehabilitate offenders then where the hell is the sense in excluding them from citizens’ obligations, like, for instance, voting?.
If, however, we want to follow the noose-and-lash brigade on their path to hell, then depriving prisoners of the vote might make us feel good or something.
I wholeheartedly agree, Graham. I can understand restrictions on certain prisoners (those serving long sentences, for instance, but they’d need to be quite long) but the new rules are bogus.
This is a seriously important case before the High Court, and one which the Howard Government could well lose, given the solid international precedents (and the fact the judges are clearly switched on and interested) and despite the fact that there is no express right to vote in our constitution. And the decision could be delivered around election time. What a hullabaloo to look forward to!
It would be interesting to see how voting prisoners would affect some electoral returns, especially in large prisons located in particular wards for local government elections. Would candidates go door-knocking from cell to cell, given that the prison vote could deliver a decisive bloc?
Or would prisoners stay enrolled in their pre-imprisonment electorates?
Bismarck, I believe prisoners in the past have voted absentee in the electorate where they were registered, care of special booths set up by the Electoral Commission. Similar visits are organised for Defence personnel on deployments and at sea, and for long-term hospital patients.
It may be that only permanent detention disqualifies prisoners from voting, but it will also be difficult for prisoners on periodic detention or doing community service to vote—as those most often happen on weekends.
A couple of other Kirby J comments have come to my attention. First, The Legal Soapbox notes that his Honour wasn’t always so hip.
Second, stoush.net highlights a recent decision of the High Court which upheld the right of an appeal court to overturn a jury’s verdict that a restaurant had not been defamed by a bad review in the Fairfax press. In its summary of the case, the Sydney Morning Herald said:
But that quotation cut the judge’s sentence off, removing the cheeky half (emphasised):
Can I just confirm how much I love Justice Kirby. The man is intelligent, witty, suave, passionate..the list goes on…
Anyway, the right to vote is fundamental, and the Federal Government’s record of attempting to disenfranchise votes has been nothing more than shameful. The most obvious example has been the limitation of time after the calling of the election for people to update their Electoral Roll details.
Everyone:
It is amusing that there is so much concern elsewhere about “criminals” voting and yet no voices are raised about voting by that proportion of nursing home residents who are manifestly demented, bewildered or otherwise incompetent ….. Don’t expect any of the major parties to rectify that situation anytime this century
Aussiesmurf,I agree. Throw in the fact Howard is trying his hardest to not only stop prisoners from voting Labour but stopping “youth” from doing it too by shutting it all down come when the election is called knowing very well most young peeps aren’t usually up to scratch on such matters. Deceitful scumbag tactics.
I still reckon that Kirby and Gleeson doing the “Jesus and Joshua were terrorists” in the “Jihad Jack Thomas” case, and getting the Commonwealth Solicitor to agree with them, (transcript here) takes the cake.