In a landmark decision, the High Court has today upheld the fundamental human right to vote, finding that the Howard Government had acted unlawfully and unconstitutionally in imposing a blanket ban denying prisoners the vote.
Last year’s legislative changes brought in by Howard’s government denied all prisoners the vote. The High Court has ruled this unlawful, while upholding the earlier principle of denying the right to vote to prisoners serving sentences longer than three years.
The court action was brought by Vickie Roach, an Aboriginal woman who is a prisoner at the Dame Phyllis Frost Prison in Melbourne.
Philip Lynch, Director of the Human Rights Law Resource Centre which ran the case, said, ‘In running this case, Vickie has stood up not just for the human rights of prisoners and Aboriginal Australians, but the interests of the entire community. She has done so with courage, integrity and commitment.’
As detailed before, Howard has introduced changes to the Electoral Act which will close the rolls within 24 hours of the poll being called, & only allow 72 hours for people to register change of address details. All of this spuriously argued for on the basis of protecting the integrity of the electoral roll – a claim the Government’s own officials have stated to be false and misleading.
But tonight, raise a glass for Vickie Roach – an Aboriginal woman who fought for a right we seem to have forgotten the importance of.
Cross-posted at Bernice Balconey’s Baloney
The law that JWH introduced was right out of the Karl Rove song book. Rove is history and we have a little longer to wait for JWH to go to. How could a nation built by convicts ever deny prisoners the right to vote.
how chokingly ironic.
Beautiful one, Bernice.
What is special about 3 years?
Exactly why is it in the interest of the community to allow the vote for seriously anti social people? I’m indifferent to the idea myself but why is this so important?
is an oxymoron, is your answer.
Are you a fascist?
Nothing, really.
But by striking down this law the High Court has establishd the principle that a line must be drawn somewhere. By that I mean as a practical matter rather than as a moral imperative.
Once the line is drawn somewhere, it becomes illegal for a government to pass a law to deny the vote to anyone who is deemed to lie on the right side of that line.
It is clear that the High Court has decided that that line should be drawn in such a way as to make it virtually impossible for the government to deny the vote to any sizeable group in the voting population.
In other words, the High Court has established voting as a well nigh inalienable right.
In other words, the High Court has established the principle that Australia is a democracy.
Hallelujah!!
jinmaro – are you suggesting that the vast majority of prisoners aren’t anti social?
And no I’m not a fascist – are you?
Well, three years must have been the previous law, which returns to force now the new law is found unconstitutional. So, you’d have to go trawl Hansard for the original logic.
Someone else could presumably challenge that as well, now, with a fair chance of success.
.
But Katz – why not draw the line at those in prison vs those not. Its still a line. Your argument doesn’t make any sense.
Possibly.
Recognise, however, that the High Court has not established any universalist principle. The High Court has not proclaimed: “The right to vote is inalienable.”
Rather, the High Court has simply established a limitation upon legislation that is deemed to be constitutional.
And the High Court has reserved the right of the government to deny the suffrage to at least one (as yet undetermined) group in the population.
Here’s one: Kids turning 18 during the campaign period.
A possible rationale for setting the line at three years is that there is some merit in allowing those who are set to return to the community a chance to participate in the democracy that will accept them back during the next term (given that a federal parliamentary term is for three years). Also, it’s seen as a safeguard against political imprisonment: someone would have had to do something very serious to be locked up for more than three years, far more serious than can be managed for a trumped-up charge to simply prevent someone from voting.
I haven’t made an argument. I’ve merely attempted to reproduce the argument of the High Court.
Perhaps it can be explained this way.
When Rosa Parks made her protest the US Supreme Court ssued a judgement that it was illegal for any government to enforce segregation on buses by law.
This is a universal principle.
The High Court of Australia would have said: We are not taking the right of goverments to pass segregation laws against some groups. But governments must not pass segregation laws against black folk.
This is a red line to limit any future legislation, but it is not a universal principle.
Why does it matter?
1. Over the last 10 years all major democracies have had their highest courts hand down decisions protecting the electoral rights of each jurisdiction’s citizens from legislative restrictions introduced by conservative governments. Had the High Court challenge failed, Australia would have been significantly out of step with international jurisprudence on this issue.
2. The right of prisoners to vote, during short custodial sentences, and as freed citizens after release, is part of legal philosophy that views trial, conviction & imprisonment not as punitive measures of retribution but the temporary suspension of liberty & privilege, relevant to the sentence handed down. A person shall not become less than a person because of an act they have been found guilty of.
3. Vickie Roach’s challenge highlights the end problem Aboriginal people face as marginalised and disadvantaged citizens, who in common with other groups in other jurisdictions have significantly higher rates of conviction, imprisonment & recidivism, which had Howard’s laws stood, would have resulted in the disenfranchisement of very particular demographics. This law would have impacted highly upon 2 small group in our society, Aboriginal men & and women between 18 and 30.
So at the moment Howard can steal their land, but not their right to vote.
& Katz, my reference to Rosa Parks wasn’t about her eventual Supreme Court challenge – it’s a reference to “from little things, big things grow”. Rosa Parks was already a civil rights activist that day on the bus in Montgomery, but a small gesture of defiance began something that would start her nation on a journey of recognising and engaging with its appetite for racial prejudice.
What a gutsy, gutsy woman!
None of we whiteies have had the wherewith all and/or ‘guts’ to stand up >effectively
. . . I give up!
Every post to this site that I have attempted has been mangled. This is another. I didn’t save a copy, & it’s too late to start again.
My bottom line was ” Vicky Roach for Gov Gen”
Jen, if you’re having problems commenting, please email us.
Please note the comments policy, which has just been posted on the front page.
http://larvatusprodeo.net/2007/08/30/lp-comments-policy-7/
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Thanks for the answers to my question. They make sense.
Is this true? I understand that over the past 10 years several States in the United States have passed laws effectively disenfranchising people with felony convictions which in the United States can include what we would consider to be minor misdemeanour crimes and those laws have not been struck down. The disenfranchisement continues after they have completed their sentences.
Naturally this disenfranchisement disproportionately affects black people who are massively overrepresented in the prison population.
And GregM:
But GregM, as Chief Justice Rehnquist opined when he helped to engineer Chimpo’s victory in 2000, the United States in a republic, not a democracy, or words to that effect.
So Rehnquist and the majority of the US Supreme Court would respond that your objection is irrelevant.
GregM, you are right of course, the USA stands out like a sore thumb. The reason for this particular republican attack on the franchise in US states is not hard to work out. Black prisoners are expected to vote for the democrats, so get them off the electoral rolls at all costs. And that’s the polity that Howard wants us to emulate!
The western democracies that have settled the principle that prisoners should have the right to vote (with some exceptions) include South Africa, the UK and Canada – and now Australia, after Howard’s little excursion along the american way failed. These are all Commonwealth countries that share a similar constitutional history to Australia.
“So at the moment Howard can steal their land, but not their right to vote.”
Well put Bernice.
And as Geoffrey Robertson said the other day, we really do need a Bill of Rights, including the right to vote. Australia now stands all alone, with no constitutional guarantee of our basic rights, allowing the likes of Howard and his cronies the opportunity to abrogate those rights at whim.
Had this case not reached the court in time, and the court not delivered its orders promptly (reasons to follow later), prisoners would have been disenfranchised for the 2007 election. That was all Howard wanted and needed, because his best legal advice would have told him it was likely the court would follow settled international jurisprudence on this issue and strike down his laws.
But stacking the High Court is a worry too, although this time at least the Chief Justice (probably the court’s best informed justice on electoral laws) and three others found the “intestinal fortitude” to do the right thing.
On the related subject(s) of a Bill of Rights and the powers of the High Court – there is a fantastic joke opinion piece by Ruddock of the Dead in today’s SMH.
“Just when it seemed safe to be openly proud of Australia, the cultural cringers are at it again…” he drones.
The world of the undead is obviously another planet.
Interesting discussion of international jurisprudence here -
However Minister Nairn was apparently disappointed:
“The court has not accepted the amendment to the Electoral Act, but it has accepted that the pre-amendment law remains valid,” he said.
“That means that prisoners serving sentences of three years or more still can’t vote, so I’ll be interested to see their rationale for that.”
I’m interested in his government’s rationale for pursuing yet another action to undermine rights, in opposition to international jurisprudence. This government’s actions should have convinced us all that we need a Bill of Rights.
Bernice
Ah, actually this decision has nothing to do with “fundamental human rights,” whatever that means. This decision was based on the AUSTRALIAN Constitution.
Voting is a ‘fundamental human right’ now?
Why?
I am a permanent resident of Australia and pay taxes. Yet i have no ‘right to vote’. My two young children also are denied this ‘right’ despite being Australian citizens. Is it our ‘right’ to be enfranchised?
If people contribute nothing to society or break the law, why should they have a natural right to vote?
I also note this appalling racism from the link,
‘With Aboriginal Australians incarcerated at a rate of almost 13 times that of their fellow Australians, it is also a vindication of Aboriginal rights.’
Are they saying that Aboriginals are a criminal class?
Perhaps we should all remember, that unlike our peers in say, Venezuela or Zimbabwe, we are lucky enough to be able to vote.
Tough shit, pommygranate, become an Australian citizen or stop whinging. And I presume you can exercise your ‘fundamental human right’ in the UK.
Sheesh, it’s whinging pommygranates like you that give the lot of us a bad name.
Adrian
Nice reply.
My point (as you evidently missed it) was that not everyone currently has the right to vote. Democracy is a concept of citizens participating in the running of their society. I fail to see why those citizens hostile to that society should get a say in how it is run.
The only ‘right’ i have is the one to pursue my life the way i want to without being attacked by you.
My point, in case you missed it was you have that right, just not in Australia.
And if you wanted said right in Australia as well, you could probably arrange it by becoming an Australian citizen.
Not a whole lot to complain about.
Rosa Parks should be insulted.
It’s a pity Roach didn’t care about her rights enough to stay out of prison in the first place.
Adrian, pommygranate has a point. Disenfranchisement and various forms of exile are very very old democratic punishments. You and I disagree with him, but he’s got a point.
The question isn’t whether it should be allowable to strip people of the right to vote, but who gets to decide who is part of the voting community of citizens, and who are ‘hostile’ to it.
My own view is that the franchise should be as close to universal as efficiently possible; and in Australia, should certainly include permanent residents. The idea that a sentence in clink for anything other than treason-like crimes should disqualify anyone from the franchise is a contemptible idea, especially in a nation with a convict history.
Craig, her prison sentence has no bearing on her status as a citizen of Australia whatsoever. Voting is a right that should be extended to all citizens.
JG is correct.
Apparently – unless she cops more than three years next time.
Well that’s one argument. I reckon most Australians could happily sleep knowing the likes of Peter Dupas or Ivan Milat can’t vote. We’re depriving them of sundry rights, why not their vote?
I do think people’s rights should be restored once they’ve done their time though. Whether ex-prisoners are comfortable having their names on the electoral roll is another matter.
The ICNN people are saying that this decision is a victory for ‘the rule of law’. WTF? If this legislation had been upheld, would it not remain an application of the rule of law, in that the government had been made answerable in the courts? And does that mean the reverse decision would have been a defeat of the rule of law? Strange logic if you ask me.
Anyway, the notion that depriving prisoners of voting rights will materially change the cost-benefit analysis on criminal activity, is pretty weak. I mean, it’s not as if there are all these potential criminals wandering around going: “If only I’d still be in the franchise, I’d chance prison.”
Cheers
BBB
Bingo, WTF are you banging on about?
You’re making less sense than usual.
Your first paragraph is a classic example of false dichotomy I believe.
And if anyone mentioned ‘cost-benefit analysis’, I must have missed it.
adrian, where is the fale dichotomy? I’ve merely posed a question as to whether a reverse decision would have been seen to be a defeat of the rule of law. If you can’t come up with an answer, that’s fine. But don’t take your frustration about that out on me.
As for the cost-benefit analysis, we haven’t seen the full reasons for judgment, but according to the ICNN one of the angles that was taken was that depriving prisoners of the vote would promote “promote respect for the social contract and the rule of law”. I suspect one of the arguments (whether express or implied) was that it would reduce crime. Get it now?
BBB
Probably incorrect.
Rosa Parks had already received specialist training in peaceful resistance methods at a Communist front training school a few months before the famous Montgomery bus boycott.
I’m reasonable confident that Rosa Parks, as a dedicated left wing agitator, would have applauded the folks who shepherded Roach’s case so skillfully through Australia’s jurisprudential maze.
Ahh you right-wingers, you love banging on about liberty when it comes to taxes and welfare, but when you start talking about criminals, aboriginals, etc. and you can’t wait to break out legislation.
Yeah, I think that’s shit, too. And makes a mockery of the notion of prison being rehabilitative (And yes, I think the notion is a mockery, but I think it’s important to start somewhere).
I feel uncomfortable because it cashes in on the notion of criminals as being less-than citizens somehow. And I think that’s very wrong. Your citizenship, and by extension your humanity, is something that should be inviolable, whether your locked up ten feet underground or roaming the streets.
Depriving people of their right to vote is saying you are not important, you are not as good as we are, etc. I just don’t like it.
Also, it’s all good and dandy to talk about Ivan Milat, etc. But how many Ivan Milats are in prison? One. How many other people are in prison? Thousands. Also, Ivan, evil though he may be, pays taxes, draws benefits from the state etc. Why shouldn’t he have a say in how the country is run? (I have no idea is he’s institutionalised a la Martin Bryant, in which case you could make an argument for it).
I dunno, for me, citizenship is a two-way street. We, all of us, draw a huge amount of benefits from the state, and rocking up every three years to tick a box ain’t such a bad way of paying some of that back.
Craig Mc – Rosa Parks would probably have been more appalled at your assumption. She would get very very annoyed at the nice white comfortable suggestion that she stayed sitting that day in 1955 because she tired:
“People always say that I didn’t give up my seat because I was tired, but that isn’t true. I was not tired physically, or no more tired than I usually was at the end of a working day. I was not old, although some people have an image of me as being old then. I was forty-two. No, the only tired I was, was tired of giving in.”
From Parks’ autobiog My Story
& John G – the fundamental human right quote came from the ICNN article, which might suggest an interesting cultural difference between indigenous & white Australians as to the notion of rights. Does our privilege make us certain we do not have to demand a definition of plebiscite right & see it only as duty? Rhetorically of course.
Which is why Human Rights Act for Australia would be a very very good idea, in the face of government attempts to disenfranchise sections of the populations through all of the 2006 changes to the Electoral Act, not to mention its failure to meet our international obligations regarding refugees & the current NT intervention. The NT intervention being presumably the reason why Howard is so vigorously refusing to ratify the UN’s Declaration on the Rights of Indigenous Peoples, due for ratification by the General Assembly next month.
Liam – I agree that voting should be as universal as possible but draw the line at criminals. Why are we happy to deprive criminals of their right to liberty but not their right to vote? Surely the right to liberty is far more important and hence if we’re all agreed that criminals should be incarcerated, then why not disenfranchised too?
However, once they have served their time, there is no question that their voting rights must be restored.
I would not enfranchise permanent residents like myself as i believe the 2yr (now 4yr) waiting period serves as a sufficient period to determine whether i will make a good citizen (though i would scrap the Citizenship Test and replace it with a basic English test).
Patrickg – ‘citizenship is a two-way street’
As an evil free-trade loving libertarian, you won’t like me for saying it, but i couldn’t agree more.
Is it possible that Howard wanted to stop prisoners from voting because they were Aboriginal, poor, people who had been done over by Centrelink under Howard’s so-called Welfare Reforms {How can a social welfare system that takes us back to pr-1944 be a reform?]or so anti-social they hate any Government? And so likely to vote against the Coalition? Mind you, some of the petty crims I’ve met in my rather chequered life never bother to vote anyway, on the principle of a pox on all your houses.
Pommy, I like anyone for saying it!
(I’m all for free trade too, so we’re not so different…)
So was Vickie Roach convicted for taking a seat on a bus, or was it some less noble crime, you know, maybe with a victim?
Because they’re quite separate things, pommygranate. If you jail someone, they’re not cast outside of society, they’re simply kept within secure bounds inside it; and as patrickg said, the State governs the lives of prisoners to an unimaginably greater extent than it does for those of on the outside.
I mentioned exile before, because it’s a very different punishment to imprisonment used by all kinds of nations against their enemies. Whereas imprisonment tightens the relationship between individual and State, exile is an utter rejection of the individual on the part of society, getting rid of all links. Doing a bit of time for drugs offences shouldn’t entail internal banishment.
Anyway, on imprisonment:
1. We imprison dangerous people for the protection of the community. I’m very glad that Ivan Milat is behind bars. I don’t care if he votes though, his vote threatens nobody, even if he votes for a Party I don’t like.
2. We imprison wrongdoers for punishment. I’m very glad that Ivan Milat has been punished for his crimes. However, free or imprisoned, he’s no less an Australian citizen.
3. Potential rehabilitation. I don’t think Ivan Milat is likely to come out of prison, but almost all of the people now serving custodial sentences will, at some point. We shouldn’t encourage them to feel outsiders in their own society.
This debate aside, Howard deliberately excluding hundreds of thousands of Australian young citizens yet to enrol; or even more culpably, those who through no fault or apathy of their own turn 18 in the 6 week campaign period – is a horrendous assault on Australian democracy.
What a born-to-rule prick!
I would, however, consider restricting the franchise to only those people who can discuss individual politicians without using unfunny epithets.
So… come the time of my Prime Ministership, everyone who’s ever used “Ratty”, “Dolly”, “Kevni”, “Bu$h”, etc. don’t bother turning up to the polling booth, fool. In fact, report immediately to the Department of the Internet for immediate reeducation.
It seems as though the High Court’s very sensible reasoning was based on the ‘temporary’ nature of most incarcarations, and the inequity of one prisoner’s right to vote being denied due to the date s/he committed it.
We distinguish between different types of crimes. Here a crime that carries less than a three year sentence is not sufficient to add the additional ‘sentence’ of having your right 9and indeed legal obligation) to vote denied.
The High Court’s decision, intuitively, sounds perfectly reasonable to me.
Would you make an exception for Crodent?
Makes as much sense as the Australian High Court determining a matter on the application of the Electoral Act on the basis that Australia is a constitutional monarchy, doesn’t it?
Hmm. Or you could consider that imprisonment is removal from society. I’m sure I’ve heard of magistrates using that expression.
‘Rodent’ enjoys bipartisan support, Liam. You fringeist!
Dunno ’bout that GregM.
Where does it say in the US Constitution that the US is a democracy?
Yes, that certainly rings a bell here too CraigMc. To me it refers to the protective function I described—certainly prisoners are not denied access to social services like healthcare, education and retraining, or denied at least basic communication with the ‘outside’, or other rights guaranteed by the Commonwealth, such as minimum safety conditions for prison work. They’re removed *from* a society to which they’ve caused harm, and kept safe *from* a society which might harm them, but they don’t become any less citizens of the country. Their removal from the electoral roll serves no protective, punishing, or social purpose whatsoever.
FDB and Izquierdista: I would make an exception for nonspecific insults and collective categorical epithets. Keating’s frequently used ‘boxhead’, for instance, or Mark Latham’s ‘conga line of suckholes’.
So no Crodent than? CK will have your nuts for a necklace, but it’s your funeral.
No Crodent. And she can take my goolies out of my cold, dead hands.
‘Democracy,’ like ‘Head of State,’ is merely a debating term, not a Constitutional or legal term.
I would have thought that the effects of the 14th, 15th, 16th, 19th, 24th and 26th amendments to the constitution would have been sufficient for the Chief Justice to conclude that the US is a democracy, Katz.
1) The term “anti-social” is effectively meaningless. Human beings are inherently social beings. Therefore humanity, or people, any people, are impossible without society.
2) To the extent that it means anything the term is a convenient catch-all that can refer to anything and everything from burping loudly during the pianissimo part of a chamber music concert to chronic meddling by the US in the internal affairs of sovereign nations.
3) Many people who end up in prison are there not because they are “anti-social”, but quite the reverse. They crave the social because they have never received enough of it.
No. But like everyone else I could be, in conducive circumstances. Perhaps the most important lesson of the 20th century.
On the general issue raised about prisoners’ voting rights – it’s not possible to quarantine classes of non-voting prisoners without anomalies and injustices. In fact this applies to the old 3-year head sentence rule too, since remissions, suspensions and parole are applied differently to different individuals.
For example, why should someone be able to vote because they can afford to pay a fine, rather than go to gaol – doesn’t this effectively reinstate the property franchise? Or should we exempt fine defaulters? Should the prohibition apply to a prisoner on remand, given that they’re supposedly innocent until proven guilty? And if they’re remanded for sentencing? What about periodic detention, community work order, work release, half-way house and home detention prisoners?
Then there are the jurisictional issues. What about someone who is gaoled for an offence in one State that is not an offence in another State, eg stem cell research – why should such a prisoner be denied the vote in federal elections? What about citizens detained without charge under anti-terrorist laws – do you reckon JWH wouldn’t hesitate for a second to use these to detain some lefties in a marginal seat or two if he thought it would affect the result of the election?
In all these, and many more, cases, the corrections authorities in all the States would be required to collect and maintain a whole new class of records simply in order to satisfy the electoral legislation – and the AEC would need to establish a whole new division to adjudicate electoral claims. And on what great principle would the cost of this extra bureaucracy be based?
Prisoners are no longer the civil dead, if ever they were – even in the Moreton Bay penal settlement guards could be punished for beating a convict to death. Priosoners can deal in their property, they have rights of access to courts and they can correspond with free citizens. Citizenship should be the sole qualification for voting rights, with the usual qualifiers regarding age and mental capacity.
One additional issue – in Australia voting is both a right and a duty. Why should prisoners have the privilege denied citizens generally of being relieved of the duty to vote?
How trusting of you GregM.
All of these democratically inspired amendments, however are trumped by this:
These electors elect the president. As you may or may not know, these electors can vote how they like. Democracy has nothing to do with it.
Until that provision is repealed, at least so far as the election of the Chief Executive of the United States is concerned, the road is wide open for any chief Justice to conclude that the US is a republic, not a democracy.
“As you may or may not know, these electors can vote how they like.”
But 99.99% of the time vote for the candidate they are supposed to vote for.
No, they voted for who they said they’d vote for.
Most of the time this doesn’t matter. (Like the reserve powers of the GG in the Australian constitution.) But some times, as in 1975 and 2000, these issues are of shattering importance.
Rehnquest could put his hand on his heart and declare that the US is not a democracy. I’ve got black letter law on my side.
Kerr could put his hand on his heart and declare that Whitlam can prate on as much as he likes about “constitutional conventions”, I’ve got the black letter law on my side.
Just introduce a $10.00 fee for voluntary voting and scrap the compulsory bit. The fee could be split between all candidates for all parties on a “price per vote” quota.
Any one willing to pony up the $10.00 is considered a franchised voter provided they are on the rolls. Might stop a lot of this sill semi-presidential circus going on in Australia now.
In my opinion a line has to be drawn (arbitrary as sentencing times may be) between people who chose to contribute to society and those to damaged/deranged/ or just plain evil to do so.
A broad approach such as sentencing isn’t ideal, Id rather see a recidivist drunk driving Aborigine who got 3 years get the vote than a white-collar professional kiddy fiddler who got 2 years 11 months.
IT does amaze me the lengths some on this board will go to pin any allegation of racism on JH. It may be an argument in some cases but to bring it up in a case like this seems a little obsessive. Not every black person who goes to court is being stuck by “the man”.
BTW, I think the court has made the right decision in this case, a month in the slammer shouldn’t see you stripped of any say in your government until the next election.
Then why do the Chief Justice and the other judges of the High Court, as in here, http://www.austlii.edu.au/au/cases/cth/HCA/2004/41.html keep rabbiting on about it.
Perhaps they have a different view than you do of the effect of sections 7 and 24 of the Constitution.
As you must not, know, most if not all States have laws to punish and remove electors who do not vote for the candidate to whom they are pledged to vote, upheld by the Supreme Court in Ray v Blair. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=343&invol=214
Some look at Ivan Milat and say why not? I look at him and say why? (apologies to Sorensen).
Whether we should give prisoners the vote or not really comes down to an arbitrary opinion. The High Court only compares legislation against the constitution and decides if it’s valid. It doesn’t offer moral judgements – or at least it shouldn’t. Apparently our constitution grants more rights to prisoners (probably more by omission than commission) than the government considered.
I’m sure everybody on the anti-rights side can understand that. However, it doesn’t mean that the constitution can’t be changed such that any future legislation would be valid (it would be interesting to see how a referendum on this would go).
I doubt the government can be bothered when the court has stamped with approval the restrictions on longer sentences – which may have been their intended target all along.
But as you have clearly overlooked, by the time any such law is invoked the elector has already voted and the damage is done.
Murder laws exist to punish murderers, not to prevent murders from happening.
And the more important fact remains that the US Constitution is premised on the proposition that what the majority of voters want is not necessarily what the majority of voters will get. This state of affairs is often an accidental product of electoral laws (like the occasion when Beazley received more TPP votes than Howard but still lost). No this state of affairs is written into the US Constitution.
To acknowledge this phenomenon is not to endorse this phenomenon.
Katz, is your position really that the US is not a democracy because there is no direct election of the executive? If the Electoral College wasn’t there, would the US no longer be a ‘republic’, rather a ‘democracy’? If you are going adopt the purist definition of democracy, I wouldn’t have through a truly popularly elected President is going to get you there. Not with a Congress in the way.
Let’s not get overly cute. The objects of the criminal law clearly include deterrence.
BBB
BBB, I haven’t stipulated what I believe democracy is. I’ve merely pointed out that the previous CJ of the US believes that the US isn’t a democracy.
And then I’ve suggested one of the rationales for his assertion.
BTW, Rehnquist isn’t the first justice of the Supreme Court to make the same observation.
Not that I would venture to argue from authority.
I can name many murderers who have been punished for their crime.
Can you name anyone who was deterred from committing the crime of murder solely because of the punishment she might receive?
Earlier in this thread theres a comment:
Rosa Parks had already received specialist training in peaceful resistance methods at a Communist front training school a few months before the famous Montgomery bus boycott.
I’m reasonable confident that Rosa Parks, as a dedicated left wing agitator, would have applauded the folks who shepherded Roach’s case so skillfully through Australia’s jurisprudential maze.
This is factually wrong:
Rosa Parks was a Christian – Methodist who lead an NAACP group at Trinity Lutheran Church in Montgmery.
The highlander falk School referred to as a Communist Front was nothing of the sort. It was established by Myles Horton – a student of Reinhold Niebuhr. Social
Gospel definitely but Communist? give me break.
Rosa Parks was a dedicated Christian – who refused to be put down simply because whe was a Negro. Who knew she was valued because she understood hweslef to be a child of God.
th line about a communist front was the excuse used by segragationists to try and close the Highlandr school down.
Idiocy.
Are we allowed to nominate ourselves?
Longer GregM: “No I can’t name anyone.”
Certainly! But but for a variety of reasons the term “unreliable narrator” immediately springs to mind.
Doug:
Don West, a Communist, was a co-founder of the Highlander Folk School. Why mention Myles Horton but not Don West?
Of course, segregationists seized on this detail of Rosa Parks’ life.
I never claimed that Rosa Parks was a Communist. It is possible to be both a Christian and left wing, as shocking as that notion might be to some folks.
Katz
My knowledge of Highliander comes from a limited perspctive – my reading on the Civil rights era and Highlander never through up the name of Don West – defer to you on that one.
Agreed Christianity and left wing politics has a long history and some deep resonances.
However on Rosa Parks – where she might be place on that not very helpful right left framework – I don’t know. Iwas simply trying to suggest that the defining framework for her stance was framed by her engagement in the balck church.
Doug,
I believe that you are correct about Rosa Parks’ political orientation.
My interest in Don West and the Communist Party is that it is quite likely that they brought Gandhian methodology to the South. The Highlander School was one place it was taught.
It is also clear that some Christian leaders were prepared to sup with the devil in order to learn methods of resistance and agitation.
The Black churches had been around in the South for a long time, but had achieved scant success in this regard until they learned Gandhian methods.
In all likelihood, the Communist Party perceived their alliance with Black churches as a mean of creating a popular front.
Perhaps Communists saw Christians as useful idiots.
It is also possible that Christians saw skillful agitators like Don West as useful idiots as well.
Desegregationists and Communists shared immediate ambitions. History tells us which side was successful in the long run.
Katz: You are mostly off with the fairies, but this statement breaks new ground!
Looking forward to reading your list of names SATP.
More idiocy.
Some gentle advice for GregM.
Katz on 1 September 2007 at 10:44 pm
Katz, In all seriousness, have a think about your statement and then get back to us before you make a terminal fool of yourself. On second thoughts, never mind. The agony of reading you dig yourself out of another intellectual holes is too much to bear.
Your nonsensical demand requires the verification of counterfactual propositions, which are not testable in our universe. Hence SATP is correct to say that you are “off with the fairies”.
In our universe we confine ourselves to testing factual propositions. Usually with statistical regression equations based as nearly as possible on ceteris paribus assumptions.
So the answer to your question is…drum roll… there is no list of non-murderers who were “deterred from committing the crime of murder solely because of the punishment she might receive” in our jurisdiction of the universe for the time under consideration. Nor could there ever could because non-murderers are not in the habit of confessing to the somewhat nebulous crime of “thwarted conspiracy to murder”.
It is possible to determine a quota of non-murderers deterred by variations in penal and correctional regimes:
– in other jurisdictions at the same time or
– our jurisdiction over different times.
THis is the discipline of the economics of deterrence, and associated game theoretical frameworks eg Prisoners dilemma.
But realisation of this would see you coming back to our earth with a sickening thud. I wonder if you would not be better “off with the fairies”.
Jack Strocchi got my joke!
The rest of you should be ashamed. (Although I guess it’s mitigated by the fact that Strocchers didn’t recognise it as a joke.)
What was she in for?
Get rid of victimless crimes, convert most property crimes to tort law, imprison only the worst property offenders and violent criminals and deny them voting rights as long as they are incarcerated.
Negligent driving, I believe, Mark Hill. Presumably there would, in pommygranate’s scheme, be a line drawn between upright citizens and antisocial non-contributors, arbitrarily, somewhere between accelerator and clutch.
Ludicrous. Police looking to pin any kinds of second-hand charges, like handling stolen goods, would have to identify the owner of the property. The libertarian paradise sounds like a wonderful environment for primitive accumulation!
And I’ve still heard no good argument why those people in prison serving sentences are any less members of ‘the people’ who must directly elect our Parliaments, according to the Australian Constitution.
1. Negligent driving can mean a lot of things. Did she harm anyone else? Could she had not been fined otherwise? The law is already very equitable with respect to inability to pay fines and judgements.
Have a look here and see if you think that in NSW at least if this crime against the person has reasonably long punishments for the various degrees it can be committed:
http://www.rta.nsw.gov.au/rulesregulations/penalties/serioustrafficoffences/otherdrivoffences.html
Roach could have done very little damage to another driver or occupant, or killed them. It is a very broad term and the worst offenders have done somethign close to manslaughter. It is not unreasonable however if this was purely a civil wrong. Maybe an economic analysis would say otherwise, but there is no reason that the deterrent wouldn’t necessarily be high enough. Most people would suffer greatly from this and would suffer simply because of their guilt. If we follow the model fo serious property crime (outlined in 2. below) for manslaughter and serious negligent driving, what would a victim or vcitim’s family prefer, almost guaranteed compensation in lieu of agreeing not to press charges (so making these kinds of offences dependent on the victim’s consent) or a lengthy and unsuccessful criminal trial fiollowed by another civil case? Yes this may throw it’s own problems up but I am very explicitly saying open it up to economic analysis.
2. “most” is the operative word. If you don’t say who owns it or try to compensate them, you get thrown in the clink. If you don’t know, then it gets liquidated and the proceeds go the victims of crime fund *which I know only goes to victims of violent crime).
3. Electors must elect the Parliaments. People who have lost their freedom as punishment shouldn’t have the same set of political liberties as do free people (they shouldn’t be electors or be eligible to stand for Parliament the constition says indictable offences over one year disqualify you for Parliament). There is no petty crimes or short maximum sentences you would be in gaol for under a libertarian regime so there is no real issue raised as by Roach. Or we give them a right (but not an obligation) to vote but they are not free to leave the prison.
4. The current ruling and current electoral laws simply impose compulsury voting on incarcerated people as well. Since when did we say that compelling someone’s conscience was a reasonable punishment for the free and incarcerated?
5. Rosa Parks had not committed any unresolvable property crime or a violent crime, she broke a stupid regulation. You need a new analogy. It’s just better to take most people out of prisons and deny those left in prison the right to vote.
The details of Vickie Roach’s conviction can be read here.
Reasons for the determination that the preexisting law is in force and valid have not yet been given.
The High Court order on the matter can be read here.
That’s utterly non-sequitur, Mark. Why?
We take away the physical liberties of prisoners for a very few reasons, which I’ve listed above: community protection, their own protection, and for their punishment and rehabilitation. Removing their political liberties such as the right to speech, opinion and franchise is an act with an entirely different motive.
The restrictions on candidacy are designed to restrict the pool of potential MPs to ‘reputable’ people (something I happen to disagree with) but there can be no argument in favour of restricting the franchise qualitatively. Good or bad citizen, if you’re born or naturalised an Australian, you’re still a citizen no matter what you do.
No, it definitely says “people” in my copy.
“The people” is undefined, State and Federal Parliament is given a right to define what an elector is or in fact how old you can be to vote or sit in Parlimament. It would be interesting to see if the Fed. Gov. could actually raise the limit, if this would or would not be struck down.
Yes you can conduct business from gaol, so it is reasonable that you might be able to vote.
However,you are not taking the punishment side of things seriously. Unless you confiscate someone’s property or have a reason to do so under fair legal processes, they should be able to conduct business, albeit in a very clunky and rigid way. The accused and incarcerated have an incentive to liquidate their firms as a good going concern or to maintain them in good order, so there is a net social benefit in letting them keep the firm as it will be run well and ensure a fair trial.
Incarceration punishes people by taking away their freedom. You’re going to punish them less because of poor wording of the constitution? You have to remember I am arguing for a lot of people to be released and punished otherwise, while the most dangerous of society would stay in prison – while you don’t think that safety is a reasonable justification for denying votes – the deterrence of such punishments and essence of what incarceration is, both are. Those remaining in gaol shouldn’t have the same rights as the free. The idea that is a non-sequitur is based on a flippancy about the importance of deterrence.
How people are treated in prison by authorities is more important than their right to vote, for most people, both in and out of prison. This isn’t mentioned in the constitution. Should they be treated arbitrarily, but have the obligation to vote?
Of course they shouldn’t, and don’t. The trite statement that prisoners are non-free individuals doesn’t have any bearing on the question of which of their political rights should be removed, and why. The only thing achieved by preventing prisoners’ participation in elections, as I see it, is assuaging the anxieties of non-prisoners about the social makeup of the electorate.
As to punishment, BBB addressed deterrence and punishment way up the thread.
I have no response to your points about doing business from behind bars. Economic transactions are rightly irrelevant to the franchise.
“The only thing achieved by preventing prisoners’ participation in elections, as I see it, is assuaging the anxieties of non-prisoners about the social makeup of the electorate.”
Is this trivial for non-trival offences?
That in fact, is entirely my point, and it flows into, although being a very minor determinant of deterrence.
If violent criminals are often sociopaths, why would you want them to vote?
“The trite statement that prisoners are non-free individuals doesn’t have any bearing on the question of which of their political rights should be removed, and why.”
Sorry, I should have addressed this too.
I think it is perfectly reasonable to deny the worst categories of property offenders and violent criminals the right to vote for as long as they incarcerated. This would exclude a lot of people that the High Court would give the right to vote to, because they would be freed and punished by fines or punitive damages and other alternative punishments. You have to remember my views differ from current law in two ways: who goes to gaol and all prisoners lose voting rights.
This can be easily justified from a starting proposition that only free adults have political civil rights. So it depends on whether or not you agree with this statement. Disenfranchisement is severe enough to add into the impact of incarceration without necessarily inflicting harm onto the prisoner.
The alternative is that prisoners are also “the Governed”, and that Governments require their consent to form. It is entirely appropriate that prisoners (if incarcerated for serious enough offences, something I clearly have a problem with now) to acknowledge that prisoners are not affected in the same way as other citizens by the laws of the land, and that part of their punishement involves removing their cosnent to who form Government or can create laws.
I don’t want to waste your bandwidth LPers, but sorry for that horrid grammar, broken sentences and probably embarrassing misspellings in the above reply. I cringed whilst reading it. I hope the gist is obvious.
Mark, nobody in Australia, not even prisoners, entirely lacks freedom or political civil rights. They cannot be tortured, kept indefinitely or incommunicado, punished for their expressed opinions, or sold.
I’d ask two questions: one, what do you hope to gain by it, and two, what about the impact on the Parliament which is elected by a reduced electorate?
That’s my position exactly. And I argued way up the thread that as the State governs the lives of inmates to a vastly greater extent than it does the rest of us, it makes little sense to disenfranchise them.
I actually have some sympathy with Mark Hill’s position, as long as it is understood that this refers to only a very small fraction of those currently in gaol.
Liam’s opinion better expresses how I feel about the current situation.
I think Martin is 100% correct or bloody close. If people are incarcerated for minor offences or short sentences, I am sympathetic to them retaining their votes.
Liam you seem to be saying even never to be released prisoners should be able to vote, I don’t understand the logic or emotion behind this. It would be very unpopular and assumes that violent criminals have a strong altruistic urge. Is that assumption valid!?
Liam, I think you have misrepresented me to an extent, paticularly in your first para. Children and the incarcerated do not have the same rights as a free adult. That never means that can be tortured. I never said that non-adults aren’t free, their parents or gaurdians exercise decision making for them.
Actually think the cost or benefit either way is very minor.
I don’t agree that prisoner’s fit into the “Governed” category. Free people are Governed, they are imprisoned. They cannot dissent in the same way you and I can. Laws affect them in a different way and they do not and should not get consent in how they are detained or how free people live their lives. Yes they have an interest once freed, but they had this interest before incarceration. Again, more generally, what value should society put on the future interests or altruism of (most of) the incarcerated?
Seems to me you’re all missing the real point here.
Instead of worrying about which convicts can or cannot vote, I think Australia should simply follow its grand national tradition: send all the Oz convicts to some grim, distant overseas colony where, over a period of about a hundred fifty years or so, the penal colony will somehow gradually morph into a jolly, liberal, witty and pleasant, politically and culturally stable, rockin’-and-rollin’ replica of Australia itself. Then that Neo-Australia can send its own convicts off to yet another distant location, and the process will repeat itself until eventually the entire world has turned into Planet Straya, and all problems solved, except what to do about the moon colonies.
I hereby nominate Florida as the site for the first New Australian overseas penal colony. I’d much rather see a mini-Australia in Dade County than what’s there now.
This would most definitely be struck down because by dint of long electoral practice persons between the ages of 18 and 21 have been deemed to be a significant group within the larger category of “the people”.
Let us say, however, that the Libs give the vote to 15 year olds, but after the next election the ALP rescinds it, the absence of any prolonged custom of suffrage for 15 year olds would likely make it legal for the next government to rescind the right.
Believe it or not, j_p_z, it has already been tried in Paraguay!
Can I recommend this story as a case study in doctrinaire self-righteous gone mad?
Jape-easy’s entertaining flippancy aside, there is another way of looking at this.
Until something specific about the particular interests of incarcerated people is an election issue, why does prisoner voting concern anyone. They’re likely to have broadly similar political leanings and issue-based concerns to the rest of us, unless and until a party comes up with a “release/behead all convicts” platform.
Katz, the history of the William Lane utopia thingie in Paraguay is interesting (and if Lefty E’s around, I think he’s been over there and talked to some of the descendants of those who didn’t come back) but it wasn’t a penal colony! A colony, yep. Might have ended up feeling penal for some – but they went there of their own free will.
Partially correct Mark.
The colonists were not convicted and banished by the state.
However.
The NSW government passed legislation banning the emigration of several classes of worker in order to stymie the colony. In that sense many of the emigrants were outlaws.
Several persons were exiled from New Australia. They set up a colony of exiles. In that sense they were declared outlaw by the original colony, along the lines imagined by j_p_z.
finally, the story is entertaining enough to be excused absolute historical parallelism.
Thanks, Katz, I didn’t know that.