Roach v Electoral Commissioner & Anor
[2007] HCATrans 276
•13 June 2007
[2007] HCATrans 276
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M19 of 2007
B e t w e e n -
VICKIE LEE ROACH
Plaintiff
and
ELECTORAL COMMISSIONER
First Defendant
and
COMMONWEALTH OF AUSTRALIA
Second Defendant
GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J
CRENNAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 13 JUNE 2007, AT 10.08 AM
(Continued from 12/6/07)
Copyright in the High Court of Australia
GLEESON CJ: Yes, Mr Merkel.
MR MERKEL: Your Honour, the question of the summons of the Commonwealth was left over for discussion last night and we have reached an agreed position, subject to what the Court is disposed to permit. Can I hand up to your Honours the amendment to the special case which is agreed, which I need to explain.
GLEESON CJ: Thank you.
KIRBY J: This is your special case. It is not Justice Hayne’s, I think, is that correct?
MR MERKEL: Yes, that is correct, your Honour.
KIRBY J: It is not stated by the Court.
MR MERKEL: That is correct. I should say we are agreed on a regime to enable the additional questions to be determined, but the questions look a little more complicated than they are and there is a substantial degree of common ground as to what I might call as an agreed position. I believe I accurately state as an agreed position between us and the Commonwealth. I do not think the Electoral Commissioner has a different position.
Question 3A only arises if we fail on the submissions we put to the Court yesterday on the repeal, so that if the repeal is of the new regime in relation to prisoners and if we succeed on our main arguments but the repeal falls with the impugned provisions, one goes back to the three‑year regime which is in question 3A. Question 3B is an intruder in the sense that there was an act in force for six days which has been repealed which raised the same question in substance as the three‑year regime. All it did was ensure that the prisoner lost the right to vote if in prison under the three‑year regime. It was repealed but the only reason it is there is because as a matter of consistency one needs to get to that provision to get down to the third question and the third question is, is the five regime in place if the three regime is invalid?
Can I indicate to the Court what I understand is a common ground. I believe it is common ground between ourselves and the Commonwealth that if the Commonwealth succeeds on its repeal arguments so that the three regime – if we succeed on our primary argument, but the three‑year regime is reinstated – if the three‑year regime is invalid, which is an issue we do raise, then the reasoning that would lead to the repeal in respect of that regime would necessarily result in the repeal itself being invalid, or the amendment, and therefore one would go to the five‑year regime.
No different question arises in questions 3A and 3B, but 3B is there for conformity because that Act was repealed in any event and no one challenges the repeal, so no separate question arises on 3A and 3B, but the question of substance that arises on 3A is we would challenge the validity of the three‑year regime. On question 3C we do not raise an issue of validity of the five‑year regime. We say that we do not have an interest in raising it because we are entitled to vote under that regime, but we say that is not a matter the Court need determine.
KIRBY J: Why are you entitled if your client is subject to a six‑year imprisonment?
MR MERKEL: Because she is not serving a sentence in respect of any offence for more than five years. So her punishment for an offence, the largest period of time for punishment for an offence was three years.
KIRBY J: But surely one would read that distributively and just look to what – is not the object of the section to look at the total time served?
MR MERKEL: No, your Honour, we say the object of the section is to look at the culpability for an offence, not a cumulative culpability for a number of offences, but we say that the Court need not be troubled by that. I understand the Electoral Commissioner does not have a position on that. It depends on whether the singular includes the plural and the answer to that depends on whether the intent was to go to culpability for an offence.
KIRBY J: Anyway, if the net result of the snakes and ladders is that the five‑year stands, you do not want to argue against it, whether it protects you or not?
MR MERKEL: No, we do not want to argue against that. No, we do not want to raise an issue of validity of the five‑year regime. That is a matter which we say will be dealt with between ourselves and the Electoral Commissioner and we will obviously have to stand or fall on how that arises, but we do not say the Court need to get into that issue. So the only additional question will go to the validity of the three‑year regime. What we are proposing is, if the Court is disposed to allow the amendment, we would seek that amendment by consent to raise those three questions and we would also seek leave, again by agreement, that any consequential amendments to the order to show cause would follow from that amendment of the special case.
We have agreed on a regime which, again subject to the Court, would enable all outstanding matters concerning the amendments to be resolved by 8 July. By “resolved” I say that what the orders are we would be seeking by consent is that the plaintiff file and serve an amended special case in respect of additional facts necessary to determine those three questions and we again emphasise that would relate to any statistical material and it may be that it is all before the Court anyway, but we do that within 10 days.
We also file and serve any further submission in relation to those questions, again within the same period which is within 10 days which is 23 June, that we also by 23 June file any responses to matters raised by your Honours yesterday. Then the defendants and the interveners would file any further submissions in relation to those questions within a further 10 days that would take them to 3 July and we would file any response by 8 July.
GLEESON CJ: Does that mean that the parties contemplate that the issue of the validity of the three-year regime, to the extent to which is different from the issue of the validity of the current regime, is an issue that would be dealt with by written argument?
MR MERKEL: Yes, your Honour, subject to anything the Court may require, but it is anticipated that it would be written argument because it basically stands or falls largely on what is argued already so the answer is yes. Can I indicate the other matter that we would ask to have stood over until after judgment is the questions of costs. Because the number of issues that are raised are somewhat complex we would ask for submissions on costs to be dealt with by the parties after judgment in the matter.
GLEESON CJ: If the parties are going to have to make written submissions on the validity of the three-year regime anyway why should they not deal, in those written submissions, with anything they want to say about costs on the alternative possibilities?
MR MERKEL: We can do that, yes, your Honour. We can embrace costs in the written submissions.
GLEESON CJ: That would at least give us an opportunity to make a decision that decides the matter, all aspects of the matter.
MR MERKEL: Yes, your Honour, we have no difficulty with including costs in the written submissions. They are the orders that we would seek to have the Court make.
HAYNE J: Can I just raise one thing. Can I just point out to you, Mr Merkel, that apparently these written submissions will involve what would seem to me to be a radical departure from the position adopted by the plaintiff in paragraphs 71 and 88 of the principal written submissions filed in support. I read paragraphs 71 and 88 as denying that any disqualification of prisoners serving a sentence can be valid. That is to say, I understood from the written submissions and from the whole of the course of oral argument yesterday, that there was no middle ground staked out. The arguments advanced by the plaintiff were absolute. What now is sought to be injected into this is a middle ground which is to proceed wholly on the papers without benefit of any oral argument. That is not to my mind a satisfactory means of determining constitutional litigation.
MR MERKEL: Your Honour, in those circumstances we do not wish to resile from our position, we only limit the questions to the extent of our interest, but if the Court regarded it as more appropriate that that second question be at large then we would not resist the validity of the five‑year regime also being stated in question 3C. What we have sought to do as a practical matter, given the time constraints and given the way in which this matter has been brought on for hearing, is to limit the relief that we seek and the questions that we ask to the plaintiff’s direct interest. For the same reason we did not wish to challenge treason and treachery because it has nothing really to do with the plaintiff. We say her interest stops at the three‑year regime, but again if the Court felt that it was necessary to determine the validity of the five-year regime, we will accept that position.
GLEESON CJ: I may have misunderstood something you said earlier. I thought that your argument was and is that the present regime is invalid and if the invalidity of the present regime were otherwise to result in the resurrection of the three-year regime, the three-year regime also is invalid. Is that your argument?
MR MERKEL: Yes, your Honour.
GLEESON CJ: What middle ground does that involve?
MR MERKEL: None. That does not involve middle ground, your Honour. The only point about the three-year regime is some of the arguments on arbitrariness on the blanket disenfranchisement will not have the same strength or may not be able to be put in the three‑year regime, but there is no middle ground there.
The same issues could translate to the five-year regime, but we do not have an interest in challenging it. We do not resile from our submissions but if the Court regarded it as inappropriate that question 3C not raise validity of the five-year regime, we would have no difficulty in putting our submissions to extend to it. Obviously the longer the regime, the arguments that have to be put may differ, but we are in the Court’s hands entirely as to the extent to which we take the questions beyond that which we say is our direct interest.
The reason for stopping at three years is that we believe that the issue between us and the Electoral Commissioner will decide the issue of the five‑year regime. We believe we are entitled to a vote under it but if that be something that be contentious, then we do not have difficulty in raising it. We are trying to keep it as narrow as possible rather than as wide as possible.
GLEESON CJ: The middle ground is being occupied by the Commonwealth Solicitor‑General who says that even if the present regime is invalid, he can sustain a three‑year regime.
MR MERKEL: Yes, your Honour.
GLEESON CJ: Your answer to that is that no, you cannot.
MR MERKEL: That is correct, your Honour.
KIRBY J: But I rather detect, reading between the lines, that you would not be all that upset with a five-year regime. There is your middle ground.
MR MERKEL: When one says “upset”, your Honour, some of our arguments would accommodate a five-year regime. Other of our arguments would say, for example, if it were punishment, that is invalid.
KIRBY J: I remain to be convinced that you do not look at the total punishment because that would be the rational way to deal with it rather than looking at what each individual – I mean, you can have a multitude of offences arising out of the one act. Then you say you just look at each one individually. That does not seem a very rational way to construe the Constitution.
MR MERKEL: Your Honour, it is a question of whether the Acts Interpretation Act applies to this provision rather than the Constitution that would arise. I only emphasise that we will accommodate a validity of the five‑year regime if the Court regarded that as a necessary question arising out of the special case. Our primary position is that as between ourselves and the Electoral Commissioner, we believe that such issue as might arise on the five‑year regime should be resolved between the Electoral Commissioner and the plaintiff.
GLEESON CJ: All right. Then we will allow the amendment and make consequential orders as indicated by Mr Merkel to have been agreed between the parties.
MR MERKEL: Thank you, your Honour. The last matter is that I need to correct one matter I identified at page 84 of the transcript yesterday. At lines 3780 to 3785 I had indicated that section 93(8)(b) of the previous regime was retrospective. I was wrong. The section that was retrospective in respect of the three‑year regime was 93(8AA) and 93(8)(b) was the regime that effectively prevented enrolment and voting. The consequence of that – and I believe this will become common ground when my learned friend the Solicitor deals with this question – is that one cannot look at repeal by reference to any particular aspect of the amending Act in relation to prisoners. The whole regime on enrolment and voting and the role of the Controller‑General of Prisons under section 109 would all have to be repealed in a totality, and we say that is what…..would not permit. If the Court pleases.
GLEESON CJ: Thank you, Mr Merkel. Yes, Mr Hanks.
MR HANKS: Your Honours, the second defendant is cast with the responsibility essentially of administering this Act. He is the Chief Executive Officer of the Electoral Commission and has substantial powers of direction over officers who discharge responsibilities, such as State electoral officers and divisional returning officers. His interest in this litigation is, of course, as the person responsible for the administration of the Act and he does not wish to be heard on any of the constitutional arguments as to the validity of the disqualification.
KIRBY J: Why does he support the Commonwealth’s submission in that respect in the answers?
MR HANKS: I understand that, your Honour.
KIRBY J: I must say that I took the view that the Commissioner is a neutral officer and, indeed, one of the most important, if not the most important, in the Executive.
MR HANKS: On this basis, your Honour, that there is a presumption of validity and the answers would go to that presumption, only on that basis, your Honour. We do not wish to engage in any of the argument.
KIRBY J: I just want to know what interest the Electoral Commissioner has to disenfranchise many citizens of this country.
MR HANKS: His interest, your Honour, is to administer the law as enacted by the Parliament and to proceed on the assumption that that law is valid. For that reason we support the answers that are proposed by the Commonwealth and for no other reason.
KIRBY J: If a tribunal or a court came here and said that they supported the position of the Executive Government they would be given the rounds of the kitchen. I ask myself is it different in the case of the Electoral Commission? I would have thought with the Auditor‑General, the Electoral Commissioner, perhaps the Ombudsman and a few others they are in a position analogous to courts. Anyway, that is just my opinion.
MR HANKS: I appreciate what you say, your Honour, and we will take that on board, if I might be allowed to do that. I did wish to say just a few words if it would assist the Court as to how the first defendant currently goes about implementing the disqualification. Your Honours have been taken through the provisions that affect the disqualification and your Honours were taken yesterday to section 109 which imposes an obligation on State prison authorities to make regular returns. Justice Gummow described this as, as it were, an imperfect obligation, a duty of imperfect obligation and that may well be the case. That information, as your Honours can see, is then used, according to section 110, to take action to effect such alterations of the roles as are necessary.
Your Honours will see that subsection (2) prevents any such alteration being effected by the removal of the name of an elector from the roll except according to a very elaborate procedure. But the action which the first defendant and those accountable to the first defendant takes is to mark the roll, that is, to place a mark on the roll against the name of the person who is disqualified under section 93(8AA) and that mark is then used when the next document is to be prepared, the next document being the certified list of electors. There is an obligation cast by section 208 on the first defendant to arrange for the preparation of lists of voters and that is a certified list of voters for each division.
Your Honours will know from one of the questions posed in this case that subsection (2)(c) excludes from that list a person who is covered by section 93(8AA). So the certified list of voters will not include those persons who are currently disqualified by that subsection and that certified list of voters is then delivered, according to section 208(3) “to the presiding officer at each polling place” and it is used by the presiding officer to determine who will be given a ballot paper. That is the effect of section 231(1). Unless the name of the elector appears on the certified list, no ballot paper will be handed to that elector.
GLEESON CJ: We were told that there are a number of people who are in prison who are not subject to this disqualification or disability, for example, people on remand, people who have been convicted but not yet sentenced.
MR HANKS: Yes.
GLEESON CJ: What is the procedure by which they vote?
MR HANKS: There are two procedures, your Honour. One, they may exercise a right for a postal vote. The alternative is that the first defendant will make arrangements for mobile polling booths to visit those places where persons on remand are in custody and they will cast a vote in that way. That is the procedure that has been used in the past, the use of mobile polling booths, when there was a limited disqualification of prisoners serving sentences, and my instructions are that that system will continue in order to allow the qualified persons in custody to cast a vote.
KIRBY J: So at all custodial institutions there will be some facility made available, all of them where it is believed there are people in the “in custody but still entitled to vote” class?
MR HANKS: Arrangements will be made for that purpose, yes, your Honour.
KIRBY J: What used to happen in the old days of the five-year or the three-year or the one-year regime? What would happen in, say, Goulburn Prison? Would there be a returning officer there?
MR HANKS: A mobile polling booth would visit with a returning officer.
KIRBY J: So nothing has changed really? A mobile polling booth is made available; it was, is and will be?
MR HANKS: I think it would be fair to say that it will be applied more selectively, your Honour, in the sense that it will only be applied where it is understood that there are persons who are qualified to vote under the much more sweeping disqualification provision that we now have.
GLEESON CJ: I suppose that is the way people in hospitals vote and other institutions?
MR HANKS: That is so, your Honour, yes. It is simply an extension of that system. The other matter that I wished to raise with the Court was that that being the system which the Act currently prescribes and imposes on the first defendant for administering the disqualification, if the Court were to answer the questions posed in the special case so as to invalidate, let us say, the current disqualification, then steps would have to be taken.
As I think your Honour the Chief Justice adverted to, we pointed out in our written submissions that steps would have to be taken quite promptly in order to ensure that those who we understood were disqualified would be permitted to vote. There will be a mechanism that can achieve that so long as my client understands what the position is prior to the preparation of the certified lists. The certified lists are to be prepared – we infer this from the Act – as soon as practicable after the issue of the writs.
The provision of section 208 which imposes the obligation to prepare the certified lists has no time in it but an earlier provision which entitles certain persons to have access to the certified lists in effect fixes a time, and that provision is section 90B(1). That subsection has a table which runs for several pages incorporated in the subsection and item 1 on the table says that:
a candidate in a House of Representatives election –
is entitled to -
a copy of the certified list of voters . . . as soon as practicable after the close of the Rolls –
The rolls close three days after the issue of the writs.
One can anticipate that when the writs are issued the rolls are closed three days later, the preparation of the certified lists of voters – we are of course talking of some 13.25 million voters - for each division will commence and will be concluded promptly. Once the certified lists are concluded there will be some difficulties in allowing those who are not on the certified list to cast a vote.
KIRBY J: No doubt within the counsels of your client there would be some consideration even now being given to contingencies. I mean the achievements of the Australian Electoral Commission and the Commissioner are really one of the prides of the country and it would be, I would think, prudent to just start thinking now, not leave it until the writs are issued.
MR HANKS: There has been some contingency planning, your Honour, but we are constrained by the provisions of the Act. All the planning has to take place within what the Act authorises and permits, remembering, of course, that my client, and the Commission as a whole, has an overriding obligation to ensure that the election takes place. If it be the fact that some person who is entitled to vote may not be able to cast a vote because of the timing issue, because that entitlement is only established after the certified lists have been prepared after the writs have been issued for the election, that may be a consequence that is unavoidable, may be. If it is a consequence that has an effect on any particular election, of course, that can
be resolved by a challenge to the result of that election, as your Honours would know, in the Court of Disputed Returns.
KIRBY J: I am only referring you to the statements by the Solicitor for the Commonwealth that the numbers, he says, that are involved are very small.
MR HANKS: They are, your Honour, yes. That is what the Solicitor says. We understand it is something less than 20,000 persons, that is our understanding, but actually identifying them and incorporating them into the appropriate rolls for the purpose of voting in the appropriate divisions, there may be some complications. I only raise those matters, and I appreciate that your Honours are fully cognisant of these issues and that there is some degree of urgency about the resolution of this matter. If your Honours please.
GLEESON CJ: Thank you, Mr Hanks. Yes, Mr Solicitor.
MR BENNETT: May it please the Court. My submissions will be divided into five sections, four of which correspond to my learned friend’s pathways, although I will deal with them in a slightly different order. The matters I will deal with will be, first, sections 7 and 24 of the Constitution; second, the distinction between qualification and disqualification; third, the question of punishment; fourth, the implied freedom; and, fifth, I will make some short general submissions about the topic of repeal but, of course, our principal submissions on that will be in response to our learned friend’s written submissions and I will be very brief on that topic.
In relation to sections 7 and 24, and this is in a sense the principal issue before your Honours, the question for the Court, we submit, is to reconcile two pairs of provisions and it is simple as that.
Sections 7 and 24 both the use the words “directly chosen by the people of the Commonwealth” or “the State”, as the case may be. So we have in those two provisions the words “directly chosen by the people”. They have to be given a meaning. On the other side one has section 30 which provides that:
Until the Parliament otherwise provides, the qualification of electors –
will be certain things. Then section 51(xxxvi) picks that up and gives power to the Parliament to deal with the qualification of electors.
So one has in those two pairs of provisions, one, a provision that the Houses must be directly chosen by the people and, two, that Parliament can provide for the qualification of electors. The problem is to read those together. One can start by rejecting the two extreme views which would have the one pair totally override the other pair. One can reject a view which says Parliament could exclude anyone in laying down qualifications, including, for example, residents of the whole of one State or, to take another extreme example, members of a major political party or a minor political party. I will come to individual examples later on.
KIRBY J: The latter was not always thought to be outside the power of the Federal Parliament. Were there not provisions we were shown yesterday excluding people who are members of prohibited organisations?
MR BENNETT: Yes, your Honour, they are not ‑ ‑ ‑
KIRBY J: I think that was intended, and maybe it is still on the books, to extend to probably communists and other such people.
MR BENNETT: Your Honour, I will deal with that when I come to it. Perhaps there are political parties and things that are ‑ ‑ ‑
KIRBY J: Just taking you at your word, Mr Solicitor.
MR BENNETT: Yes. At the moment I am simply pointing out that obviously one does not take that extreme view, nor does one take the extreme view that one has to include absolutely everyone, including, as was suggested in this Court on one occasion, small babies and people with mental incapacity unable to understand the nature of the right to vote and so on. Clearly both extreme views can be rejected. So one says, what is the reconciliation? The only reconciliation that is available, we would submit, is the one that has effectively been said by this Court in earlier cases but which one would come to even if it had not been said and that is to say that Parliament can fix the qualification but must not do so in such a way that it prevents the result being members who are directly chosen by the people. Of course, to utter those words does not answer the question in individual cases. One still has to look at individual cases and decide them.
One can look to a number of factors which would determine whether the exclusions of particular groups are valid or invalid. I accept that your Honours are going to put to me in the course of argument various groups and say, could you disenfranchise them, and I am going to have to deal with those. But before I get to the stage of doing that, what I propose to do is to indicate some of the criteria which assist one in determining it.
Now, the cases where the resolution of the conflict has been referred to are McKinlay 135 CLR 1. It will probably be of assistance to your Honours to have both McKinlay and McGinty 186 CLR 140 on the table for your Honours. I will be referring to various passages in these cases. In McKinlay at page 38 point 5 ‑ ‑ ‑
KIRBY J: I see, and I am not questioning the use of the joint reasons of Justices McTiernan and Jacobs because they are very helpful for the problem we are on, but I see that in the first holding in that case their Honours were in dissent.
MR BENNETT: That is so.
KIRBY J: Is the difference between them and, say, Chief Justice Barwick relevant to the way the case was decided or is it just that the caravan has moved on since McKinlay? I just want to understand in terms of strict authority where they stand in relation to the decision in the case.
MR BENNETT: Your Honour, there is not a short answer to your Honour’s question because, as your Honour says, they were partially in dissent and partially not in dissent. I simply cite the passage I am citing to your Honour at the moment as an example of how Justices have referred to the problem and have not given a more detailed test. My learned friend criticises us for not providing to the Court a neat, sharp, simple test which would enable one to say one can disenfranchise X and one cannot disenfranchise Y. I cannot do that, your Honour, and Justices of this Court have not been able to do it. They have basically said what I have just said. Your Honours see at page 36 at point 7:
The words “chosen by the people of the Commonwealth” fall to be applied to different circumstances at different times and at any particular time the facts and circumstances may show that some or all members are not, or would not in the event of an election, be chosen by the people within the meaning of these words in s. 24. At some point choice by electors could cease to be able to be described as a choice by the people of the Commonwealth. It is a question of degree. It cannot be determined in the abstract. It depends in part upon the common understanding of the time on those who must be eligible to vote before a member can be described as chosen by the people of the Commonwealth.
The example of women is then given.
GLEESON CJ: That assumes there is a common understanding.
MR BENNETT: Your Honour, that is a criteria, one of the factors one takes into account, yes. They say it again at 38 point 7 in slightly different words where they say at the beginning of the last paragraph:
We therefore conclude that none of the impugned sections of the Commonwealth Electoral Act is invalid but that no provision of that Act can validly operate in so far as by such an operation members of the House of Representatives would not on a general election be chosen by the people of the Commonwealth.
In one sense that restates the question but we say the answer can only be in terms of such a restatement. Your Honour Justice Gummow in McGinty at page 285, in the context of one vote, one value rather than who was entitled to vote, said at the bottom of the page at point 8 in the last full paragraph on page 285:
Looked at in this way, the task of the plaintiffs then becomes to demonstrate that the voting system of which they complain is so distorted as not to answer the broad identification . . . of ultimate control by periodic popular election.
That is where the word “distort” comes from and our learned friends criticised us for using the word on the basis that it implied a purely quantitative test. I hasten to plead not guilty to that charge. We do not suggest that the test is purely quantitative. One could have the exclusion of a group. The clearest example would be a small area within the Commonwealth, other than in a Territory. The exclusion of the people off such an area, even though very small, would clearly be something which qualitatively would be outside the scheme laid down by the Constitution which carefully defines the relative positions of the States and the provisions in relation to constituencies in the States.
KIRBY J: Similarly, the exclusion of the Aboriginal people of any particular area or the Aboriginal people, period.
MR BENNETT: That is an example, your Honour, which would clearly be unacceptable today for a number of reasons. One is the effect of the repeal of the former provision which contemplated the taking into account – I think it is 127. Another is this, that Australia is a multicultural and multiracial society and in that context to exclude from the franchise people by reference to their race would be qualitatively such as to prevent the choice being by the people of Australia. So there are various reasons why that one would almost certainly fail.
GUMMOW J: At some stage, was the second paragraph of section 4 of the Commonwealth Franchise Act 1902 which said that no Aboriginals were to be on the roll unless they had entitlement under section 41, you remember, at some stage that went out of the law.
MR BENNETT: Yes.
GUMMOW J: Do you know when that – I think your junior will.
MR BENNETT: I will have that checked, your Honour.
KIRBY J: You say Australia is a multicultural society, would you agree that it also a robust and tolerant society, I mean “multicultural” is rather vague?
MR BENNETT: Yes, your Honour, but, with respect, the words your Honour has used are even vaguer. They are generalisations no one could dispute. It is like a proving of goodness, it becomes so general as to cease to have helpful meaning. We stress that the test ultimately is multifactorial and what I am doing at the moment is indicating to your Honours the clues which one can find. I have now been told the answer to your Honour’s question about the removal of that provision is 1962.
GUMMOW J: Thank you.
MR BENNETT: The one helpful clue to what would be regarded as qualitatively within the discretion left to Parliament is found by looking at section 44 where the Constitution turned to deal with certain disqualifications in relation to members of Parliament and Senators. When one adds to that the exclusions existing at the time, it becomes fairly clear what are some of the types of matters which would have been left to the Parliament. Aliens is under (i), a taint of treason and a degree of criminality and sentencing in (ii) and it is of interest that (iv) and (v) are concerned with the conflict of interest issue in relation to offices of profit and interests in agreement with the Crown and so on.
GLEESON CJ: What is (iii) concerned with?
MR BENNETT: I will deal with the question of bankrupts later, your Honour. Section 44(iii) is in a slightly different category. It reflects the far greater stigma of bankruptcy which existed at the time than exists today. It may have been felt that a person who was bankrupt was likely to be more susceptible to a bribe than another person and therefore should be excluded. It would be inconceivable today that bankrupts as a whole would be excluded on a qualitative basis and perhaps on a quantitative basis.
GUMMOW J: Why would it be inconceivable? Is it because the status of bankruptcy is no longer seen as having any connection with one’s position in the general body politic?
MR BENNETT: Largely for that sort of reason, your Honour, yes.
GUMMOW J: You can see why traitors would be outside it and why aliens would be outside it. Does the criterion for exclusion have to be in some way connected with the functioning of the electoral system, what it is trying to achieve?
MR BENNETT: In a broad sense that is one of the factors which would operate against something being within the parliamentary discretion if it were something having no possible relationship.
GUMMOW J: Is that not why we say, for example, Aborigines would be – how could you exclude them? What would the possession of their racial characteristics have anything to do with why they should or should not be treated the same as everyone else?
MR BENNETT: I have accepted that, your Honour.
GUMMOW J: But that has happened at some stage since 1902.
MR BENNETT: Yes. In 1902 we were a very bigoted, racist and sexist society – there is no doubt of that – by modern standards.
KIRBY J: You think we have improved?
MR BENNETT: Your Honour, it is not what I think that is - but I would submit we have improved. Clearly we have. The concept of racial discrimination or sexual discrimination legislation in 1900 would probably have been laughed at. Today it is regarded as an essential aspect of society. Attitudes have changed and our attitudes to racial and sexual equality are perhaps the most extreme example of how we have changed since 1900. There are others, many others.
GLEESON CJ: The disqualification in 44(ii) is narrower than the disqualification in the current Electoral Act, is it not?
MR BENNETT: Yes, your Honour, although I will demonstrate that the current restraint does nevertheless apply to election to Parliament. I will come to that in a few minutes.
KIRBY J: You say we had an absolute bar on bankrupts being elected and we had the one about foreign powers because that probably would involve a lot of black people and Aboriginals did not vote because they were black and we would not want to have them around in Parliament. You say all of that has improved and I would accept that, but now we get suddenly in the second century of the Commonwealth an Act which goes in the opposite direction and narrows the citizens who can vote.
MR BENNETT: Yes, your Honour, but the mere fact ‑ ‑ ‑
KIRBY J: The general drift, you are suggesting, is towards more comprehensive voting.
MR BENNETT: That is not what I said, with respect, your Honour. The particular aspects of the franchise may go up or down. I will come to that when I get to the submissions on my friend’s argument about qualification and disqualification.
KIRBY J: On that theory we can go down again and exclude black people and people of minority religions and bankrupts from voting.
MR BENNETT: No. Your Honour, the test I am propounding for what is meant by “chosen by the people” involves multifactorial analysis which would almost certainly prevent an exclusion of those groups today.
KIRBY J: You accept that the Parliament could not enact a law excluding undischarged bankrupts or insolvents from voting?
MR BENNETT: Your Honour, that is the first of the questions.
KIRBY J: There are more to come.
MR BENNETT: I know there are, your Honour, and may I use that opportunity to indicate a general caveat in relation to the answering of such questions. The first is that while they may be useful as indicating the nature of the test I am propounding, they are essentially matters to be determined when and if they arise. Most of the examples, certainly including that, are examples of cases where it is inconceivable in the 21st century that a Parliament would enact a law excluding such groups.
KIRBY J: Some might say it is inconceivable that in the 21st century when the Supreme Court of Canada, the Constitutional Court of South Africa, the European Court of Human Rights, that it is inconceivable that our Parliament would enact a law disqualifying all prisoners, whatever the triviality of their imprisonment.
MR BENNETT: I am going to come to that, your Honour. That is the major issue in the case and that is something I am going to ‑ ‑ ‑
KIRBY J: If the test is inconceivability, if that is what you are testing ‑ ‑ ‑
MR BENNETT: No, it is not my test, your Honour.
KIRBY J: - - - if that is what you are propounding, then different people will react to different ideas of what is conceivable.
MR BENNETT: Yes, they may, your Honour, but I submit that what has been done is by no means inconceivable but that the examples put to me are. The examples of Aboriginals, of particular racial groups and perhaps bankrupts are inconceivable.
KIRBY J: It depends on your imagination, I suppose.
MR BENNETT: Maybe it does, your Honour. It has been said on a number of occasions, and specifically in WorkChoices, but repeating a large number of previous cases, that the Court does not test constitutional principle by reference to extreme examples.
KIRBY J: So you accept that exclusion of all undischarged bankrupts or insolvents from voting is an extreme example?
MR BENNETT: Yes, your Honour.
KIRBY J: Why do you accept that?
MR BENNETT: Because, your Honour, modern social attitudes are such that it is inconceivable that it would occur and the ‑ ‑ ‑
KIRBY J: So modern social attitudes have gone a distance in our acceptance of the variability of bankruptcy and insolvency, but not of the variability of the reasons that lie behind a particular imprisonment?
MR BENNETT: Well, your Honour, yes. I will be submitting there is a very big distinction between a bankrupt and a criminal.
HAYNE J: You assume that bankruptcy has a constant content. Bankruptcy and insolvency is a head of power which may lead to different forms of administration of the affairs of persons in financial difficulty. The bankruptcy administration that now applies may perhaps itself reflect different social mores and I think there is difficulty about drawing comparisons of this kind until one knows the content of both sides of the comparison.
MR BENNETT: Yes. Your Honour, that is why I submit that asking the question about bankruptcy, with respect, really does not assist in answering the problem that faces your Honours. May I go on about the clues in section 44. The conflict of interest clue is another one. One example of something that clearly could be done by Parliament would be to disenfranchise all returning officers who are given casting votes. That was done by a previous provision of the Act under which returning officers had casting votes and they were disqualified from having a primary vote.
GLEESON CJ: Are there some societies in which judges are disqualified from voting?
MR BENNETT: Yes, including Canada, your Honour.
GLEESON CJ: Yes.
MR BENNETT: I will come to that. That, perhaps, is an extreme manifestation of a view concerning the separation of powers.
HAYNE J: I thought the Canadian exclusion of judges ultimately did not pass muster.
MR BENNETT: I am not aware of that, your Honour, but your Honour may be correct.
HAYNE J: I thought in Sauvé there was a reference. I may be wrong.
MR BENNETT: Your Honours have been given these provisions. Section 164 provided that the returning officers in the event of inequality of votes had a casting vote but were otherwise excluded from voting. In the volumes of opinions of the law officers there are two opinions, one by Mr Garran and one by Mr Glynn which express the view that that provision is valid and give the explanations of it. It is opinion No 165 at page 203 of the 1901-1914 volume. That is Mr Garran’s opinion. Mr Glynn’s opinion - he, of course, was one of the persons present at the constitutional debates and later an Attorney-General - is opinion No 356 at page 461.
GLEESON CJ: But your use of section 44 seems to suggest that the test is whether there is a good reason for disqualification and you go through section 44 and with varying degrees of success advance what might be regarded as good reasons for not extending the vote to people, but is that the test that we apply? Do we ask ourselves whether Parliament has a good reason for disqualifying prisoners?
MR BENNETT: No, your Honour, that is not the test I am propounding. I am propounding a much more multifactorial test in which section 44 simply provides a clue to the type of disqualification which was contemplated.
GLEESON CJ: For all we know, and it seems to me far from a fanciful possibility, exclusion of prisoners from voting might be hugely popular in the general electorate. Is that a sufficient reason for excluding people from voting, that it would have the overwhelming approval of the electors?
MR BENNETT: Your Honour, it is not a question of sufficient reason, with respect. It is not a matter of adding up is this a good thing and is this a bad thing and second guessing Parliament. The question is whether qualitatively or quantitatively the nature of the exclusion is such that it means that in a broad general sense members are not elected by the people. That is the ultimate question.
In determining that and reading that provision against a provision which gives the legislature the ability to determine the qualifications of electors, one has to then say, “What sorts of qualifications was it contemplated that the legislature could impose without detracting from the members being chosen by the people?” That is why one then goes to section 44 and says here is one clue to the type of thing that was clearly regarded in the structure of the Constitution as the sort of thing that might give rise to a disqualification.
CRENNAN J: But the Chief Justice’s question can raise the common understanding issue. In the 1995 debates in relation to the change, the original plan as I understood it from the debates was for the then government to bring in precisely the type of legislation which Mr Merkel is now urging and they decided against doing that, ultimately, because there was, it seems from the second reading speeches, such a public outcry about that proposal so that the three years was a compromise against that background. I am just raising the common understanding issue.
MR BENNETT: Your Honour, that, we submit, is not of assistance in determining what Parliament is entitled to do in determining what are the qualifications of electors. The reasons why it may make a particular determination are matters for Parliament and like all matters for Parliament they will involve political questions and questions of public opinion and matters of that sort. What this Court is concerned with is something broader than that.
GUMMOW J: One would not hope, in a way, that the consideration of who was or was not to be disqualified was a party political question.
MR BENNETT: No, your Honour, one would hope not and that is why I have accepted that one of the factors which would make the selection of a group invalid ‑ ‑ ‑
GUMMOW J: Because, if I can just complete, because once that is the way to look at it you are in the sort of territory that so agitated Professor Tribe in that passage which I quoted in one of the judgments.
MR BENNETT: That is why, your Honour, I had no trouble accepting that it would be almost inevitable that the Court would hold to be invalid a provision which disenfranchised all members of the Democrats or all members of One Nation or all members of the Greens or Family First. That might be a very small number of people in relation to party members, but it would be the type of exclusion which qualitatively would militate against the words “chosen by the people” which, of course, have all sorts of implications in relation to political organisations.
GLEESON CJ: This is the problem about using common understanding or public attitudes as the test. It might be very, very popular electorally to exclude certain classes of people from the vote. In that sense it would accord with public attitudes or with common understanding as a matter of fact but that is not the test that we can apply, is it?
MR BENNETT: No, your Honour, it is not the test I am propounding.
GLEESON CJ: You can assume Parliament would not be very likely to pass a law that was electorally unpopular.
MR BENNETT: When I have talked about things being inconceivable, I have been talking about probabilities, not about what the law is in this Court. Your Honour, I accept that it is not a matter of popularity with the public. That clearly is not the test.
KIRBY J: It may be the test though for politicians. I mean, I do not know much about this but I read in the press about so‑called wedge issues, identifying unpopular groups acting against them. That is said to be popular electorally.
MR BENNETT: Yes. Your Honour, Parliament may make laws for reasons which appear desirable to the majority in the House at the time but that is not ‑ ‑ ‑
KIRBY J: They very rarely do anything that is not affected by politics and if we think otherwise we are being very naïve, I think. Take, for example, the United States where there are two million people in prisons. The disqualification of such a very large cohort of the population, very large sections of which are African Americans or Hispanics, would have a distinct political complexion, distinct, and even, it might be suggested, in Florida where there is the biggest population in prison, a decisive significance politically.
MR BENNETT: Yes, it may, your Honour.
KIRBY J: When you get into elections and the Electoral Act this Court must be specially vigilant because this is where, as was said in Mulholland, there are self‑interested decisions that are being made. We have to hold the balance neutrally.
MR BENNETT: But the Court must do so in the context where the Constitution confers upon the legislature the power to determine the qualifications of electors. Those words have to be given a meaning. They have to be read side by side with the words “chosen by the people” and one has to reconcile them. One does not just look to the one side of that equation and say that any attempt to determine the qualifications of electors is going to be invalid if one disagrees with it, if it is populist, if it is political or anything like that.
GLEESON CJ: Part of the problem is that those words were written into the Constitution. Words like “chosen by the people”, words like “disqualification”, words like “qualification” were written into the Constitution at a time when huge numbers of people did not have the right to vote.
MR BENNETT: That is certainly true, women did not have the right to vote, Aboriginals did not have the right to vote, and there were property qualifications in relation to Upper Houses and States but not in relation to Lower Houses at the relevant times. What your Honour says is, of course, correct. It is also true that if there is one thing that was virtually universal at that time and, indeed, since, it is some exclusion in relation to prisoners and I will come to the detail of that in due course. It is of significance that section 30 commences by accepting the qualifications prescribed for the State Lower Houses which, as I say, did not include property qualifications but which did include some form of prisoner disqualification in every State at the time.
KIRBY J: Nowhere a total exclusion or maybe in Tasmania? Do not interrupt yourself now, you will be on to that in due course. I have a feeling that section 44 and the various heads of disqualification there probably came from an imperial template because in the Law Reform Commission once before we looked at this issue and I think it has a long history and is regularly repeated in 19th century imperial and colonial legislation. I may be wrong.
MR BENNETT: It appears in many places, your Honour. I think I am correct in saying – I should check this but I am fairly certain – that in the Law Officers Act I am disqualified if I become bankrupt.
KIRBY J: I think it was in that connection that the Law Reform Commission was looking at it, the general disqualification for bankruptcy.
MR BENNETT: I say that subject to correction, I have not checked that.
KIRBY J: It is not likely in your case.
MR BENNETT: One never knows.
HAYNE J: It was a problem that became acute in immediately transitional colonial times because often the person who was most likely to lead the new government was then under sentence for an offence of sedition or some other offence which would otherwise have disqualified him from assuming the office to which he would be resoundingly elected popularly.
KIRBY J: Mr Mandela might have had some difficulties on such a provision.
HAYNE J: I had in mind Mr Kanyatta.
MR BENNETT: There may also have been in colonial days many debtors who absquatulated to the colonies.
GLEESON CJ: Especially in the 1890s.
MR BENNETT: Yes.
GLEESON CJ: But the question still is, what is our task? If you look at the Canadian Charter, their task is to search for a justification. Section 3 says everybody has the right to vote or something to that effect, and then section 1 says that Parliament can limit these rights to the least extent reasonably necessary in a free and just society, whatever the expression is. But is that our task, to see how you justify, that is, to see whether you can show a good reason for not permitting these people to vote?
MR BENNETT: No, your Honour. We will be submitting in due course that the type of test which arises under the Canadian Charter or the Bills of Rights in other places is a very different question. While your Honour asks about Canada – I think your Honours have this case - it is of interest if your Honours glance at Belczowski v The Queen (1992) 90 DLR (4th) 330. This is the case that was affirmed in a very short judgment by the Supreme Court of Canada. All I want to use it for at this stage ‑ ‑ ‑
GUMMOW J: It is [1992] 2 FC, is it not?
MR BENNETT: Yes, it is also there, your Honour, but I only want to refer to it as a convenient place to find some information. I am not using it at the moment for the decision. Your Honours will see two significant things on page 332, the second page of the judgment of Justice of Appeal Hugessen. Your Honours see first the terms of the Charter which stand in stark contrast to sections 7 and 24. They say, “Every citizen of Canada has the right to vote in an election”, et cetera. So it is a very different structure from our Constitution. Then what involves the questions which agitated the court in these cases is section 1:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
We do not have anything ‑ ‑ ‑
KIRBY J: Given the nature of our representative democracy, why did we not too start from a proposition that every citizen or every national, every subject of the Queen in Australia, has the right to vote? That is the nature of our polity.
MR BENNETT: It is not what our Constitution says, your Honour.
KIRBY J: It is a question of what it says between the lines. It sets up a democratic Constitution, a democratic Commonwealth, and goes to all this trouble, all those provisions of the first chapter dealing with how we elect Parliament. It is not a charade; it is there to elect a democratic Parliament.
MR BENNETT: It is, your Honour, and I am going to come to that aspect when I get to the implied freedom.
KIRBY J: Why would we not start from the same proposition that it is part of citizenship in Australia that you have a right and a duty in this country to participate in the political governance of the nation?
MR BENNETT: The duty came later. Because section 30 provides the contrary, and section 30 has to be read with sections 7 and 24.
KIRBY J: Section 30 appears in a Constitution whose whole point is to create an electorally accountable democracy.
MR BENNETT: Your Honour, that would read section 30 down to almost nothing except perhaps ‑ ‑ ‑
KIRBY J: No, there are still babies and young people and the mentally ill and people who fraud on the electoral process, but just selecting an unpopular minority, that is the matter that is of concern, at least to me.
MR BENNETT: If the sole criterion for selection of a group was that, then that might well fall on the wrong side because of the qualitative aspect of the words “chosen by the people” but there is a lot more to this group than that and I will come to that when I get to that part of the argument. Of course, section 122 is another example of an area where the principle your Honour refers to is simply overwritten, as is section 121, I think, in relation to people of new states where it can be done on such terms as to their franchises.
KIRBY J: Yes, but that also has to fit into the Constitution. Certainly, four members of the Court said that in Newcrest. You cannot just regard the Territories as something cut off, having nothing to do with the Commonwealth.
MR BENNETT: No, one cannot, your Honour. That is an argument for another day but the point about those references is that there is a very wide discretion given to the Parliament in relation to those areas. Just returning to the case I was taking your Honours to, Belczowski. The same page, page 322, conveniently sets out what was then section 51 of the Canada Elections Act and it is interesting to see what the exclusions were there:
The following persons are not qualified to vote at an election and shall not vote at an election:
(a)the Chief Electoral Officer;
(b)the Assistant Chief Electoral Officer;
(c) the returning officer for each electoral district during his term of office –
except when he has a casting vote –
(d)every judge appointed by the Governor in Council –
with an exception –
(e) every person undergoing punishment as an inmate at any penal institution for the commission of any offence –
which is similar to our provision –
(f) every person who is restrained of his liberty of movement or deprived of the management of his property by reason of mental disease –
that is perhaps a narrower restriction than ours in some respects, wider in others, and:
(g) every person who is disqualified from voting under any law relating to the disqualification of electors for corrupt or illegal practices.
That brings to mind that one of the American authorities refers to Alabama having a disenfranchisement provision in relation to people convicted of betting on elections.
KIRBY J: Well, miscegenation is still in the statute in one – I think it is Alabama – in the schedule we were given. It is still there. It being typical to have unpopular ‑ ‑ ‑
MR BENNETT: I do not think that is still an offence, your Honour, even in Alabama. It may have remained in the electoral provision by accident but it is ‑ ‑ ‑
KIRBY J: It shows the need for vigilant scrutiny of the exclusion classes.
MR BENNETT: If it is no longer an offence it is fairly meaningless.
KIRBY J: It is in the schedule. I read it myself with my own two eyes.
MR BENNETT: If there were such an offence it would be inconsistent with federal legislation and there would be other problems. It is not a provision which could possibly have any meaning or operation today. That is, as I say, an interesting list showing the types of things which have been accepted. I should say a little bit about the age of majority for this purpose. We would submit that is clearly within the area where Parliament can determine the franchise as to who is an adult.
The age has, of course, been reduced to 18. It has been slightly increased since then by one day and I will show your Honours that in a moment.
KIRBY J: What, you say that a future Parliament could exclude all persons over the age of 70 from voting, just in case they might not really understand what it is all about or not be in tune with the modern society?
MR BENNETT: Your Honour, that is another example of something which would be inconceivable that Parliament would do it.
KIRBY J: But do you disclaim it as a matter of power or not?
MR BENNETT: Your Honour, as a matter of power it would be strongly arguable that such a provision would be both qualitatively and quantitatively such as to preclude choice by the people of Australia. That would be a matter to be decided then. If Alzheimer’s was so prevalent in the population at the time that there was virtually no one over the age of 70 who was able to understand the nature of the right to vote, then perhaps one could make an argument for such a law, but it is not before the Court at the moment.
KIRBY J: But we have to test your propositions, you see.
MR BENNETT: Yes, I understand the proposition has to be tested, your Honour, and certainly today there would be a large number of the factors that I have referred to that would militate against such a limitation. But it is in the category of extreme examples which do not really helpfully, I would respectfully submit ‑ ‑ ‑
KIRBY J: Are not the Parliament moved from one year to three years and then to five years? There would have been a few in our nation who would have thought it is an extreme example that the Parliament would enact a law that goes back to even a provision that was not in existence in 1901 to a total exclusion, every prisoner, no matter how trivial or insignificant in the picture of their life the imprisonment was.
MR BENNETT: Your Honour, in 1901 it was wider in some respects and narrower in others. I will come to that. For example, it included offences anywhere in the British Empire at the time, which it does not today and the period at that time related to the maximum which could be given for the offence rather than to the particular offence given to the person. So it is not, with respect, correct to say that we have gone back to something stricter than what existed in 1902.
KIRBY J: We have. In 1901 it was not all prisoners, now it is.
MR BENNETT: But there are other respects in which in 1901 it was wider. It is not all prisoners. It is all prisoners who are actually incarcerated for offences punishable under State or federal law. The prohibition in the Commonwealth Franchise Act 1902 was:
No person who is of unsound mind and no person attainted of treason, or who has been convicted and is under sentence –
“under sentence” is wider than the current provision, “or subject to be sentenced” is certainly wider than the current provision. “Under sentence” would cover parole situations.
GUMMOW J: It is following section 44 of the Constitution.
MR BENNETT: Yes, your Honour.
GUMMOW J: That is where the words come from.
MR BENNETT: Yes, they do.
GUMMOW J: You see that by looking at the speeches in the Parliament.
MR BENNETT: Yes –
under the law of any part of the King’s dominions by imprisonment for one year or longer ‑ ‑ ‑
GUMMOW J: Yes, now, what were they getting at there? Why would somebody be imprisoned in Australia for something that they have done and been convicted in New Zealand? Now, how is that going to work? Did it ever work?
MR BENNETT: No, your Honour. It would apply to a person in New Zealand who had been convicted, had not yet been sentenced and who had fled to Australia before being imprisoned. Such a person would be caught by this.
GUMMOW J: They would have had to have lived in Australia for six months.
MR BENNETT: Yes.
HAYNE J: What is the construction you place upon, first, “under sentence” and, secondly, upon “subject to be sentenced” in section 4?
MR BENNETT: “Subject to be sentenced” presumably relates to someone who has been convicted and not yet sentenced. The jury has come in and said “Guilty” and the judge has said “I remand you for two weeks for sentence”. The words “under sentence” would apply to a person who is either incarcerated or possibly, while released on parole, within the term of the sentence.
HAYNE J: It would include the person at liberty on licence, would it not? Was not that the bite of the provision?
MR BENNETT: Yes, and I rely on that as demonstrating that this was in some respects stricter than the current rule.
HAYNE J: In particular, the life prisoner who was released on licence.
MR BENNETT: Yes, precisely.
KIRBY J: The important phrase is “in some respects”. It at least had the redeeming value of being a little nuanced. The present provision is not nuanced at all.
MR BENNETT: It is nuanced, your Honour. It is nuanced to the period of one’s incarceration. If one compares it with American provisions, many of which result in one being disqualified for life or for some years after one is released, if one compares it with provisions such as the one I just took your Honour to where someone may be released on licence but still subject to the disqualification, it is nuanced. It is nuanced to the precise sentence which the court thought appropriate in relation to the particular prisoner. That is, we would respectfully submit, about as nuanced as it could be.
Having put the sort of general considerations, I turn to the particular matter here, the question of prisoners. We say this is an easy case. This is not a case in the category of the hard examples which have been and no doubt will be put to me during the course of the day. It is easier because of section 44(ii) which provides, as I have said, a strong clue. It is easier because of the practice of the colonies in 1900 and the States since then and we have demonstrated in various schedules that some sort of exclusion of this type is virtually universal.
HAYNE J: Can I just understand what the clue is you say comes from 44(ii). If we begin from the proposition that account must be taken of “chosen by the people” we go at least to the next step of saying that that is an expression of generality, do we not?
MR BENNETT: Yes, your Honour.
HAYNE J: The immediate question is whether it is universal or is it subject to any exception. Your next step, I think, is to say that it is not universal, it is general but is subject to exception, see section 30. That is step 2.
MR BENNETT: Yes, your Honour.
HAYNE J: But it is step 3 which I do not yet understand, in your submission. Your submission is you get a clue about the exceptions from 44(ii). What exactly is the content of the clue that you are thus given?
MR BENNETT: The clue one is given is that one of the areas which was regarded as a matter of possible qualification or disqualification is the area of criminality.
HAYNE J: It is as broad as that?
MR BENNETT: Yes, your Honour.
HAYNE J: Or is it that “chosen by the people” not only carries with it generality but also concepts of participation?
MR BENNETT: That, your Honour, is another factor that one would, we would submit, regard as a useful clue in the multifactorial approach.
HAYNE J: “Multifactorial” is a lovely expression but may mask more than it illuminates, Mr Solicitor. If we look at questions of 44(ii), what do you say “under sentence” means in 44(ii)? Does it include the person who is at liberty in the community on licence or on parole?
MR BENNETT: Your Honour, I have not checked whether there is any authority on that question. Uninstructed by such authority, I would have said yes.
HAYNE J: What, if anything, does that observation say about the content of section 30? If section 30 permits, as I understand must be the premise for your argument, legislative prescription that differs in its detail from 44(ii) while dealing with the same general subject of persons subject to the sanction of imprisonment, what exactly is the clue we are said to derive from 44(ii)?
MR BENNETT: Solely, your Honour, the reference to “subject matter”, as one does from 44(iv) and (v) which would justify the disqualification of returning officers and possibly - my learned friend Mr Hanks’ client may not like this example – the disqualification of senior officers of the Electoral Commission or indeed all officers of the Electoral Commission on the basis of some sort of perceived conflict. I am not suggesting that ever would happen but I give it as an example of the sort of area where it was left to the Parliament. One gets the clue from section 44 that the area of possible conflict of that type is one which they had in mind. Obviously in general any elector is entitled to vote in accordance with his or her interests, but where the Electoral Commission is in a particular position in relation to the running of an election, one could imagine such an exclusion, as your Honours saw existed in Canada where certain officers were excluded.
GUMMOW J: I think it is worth looking at the history of 44(ii) in the Conventions because, as it was originally framed in 1891, I think it was to be a total exclusion.
MR BENNETT: I have to check that, your Honour, but there is a reference at page 1853 of the Convention Debates in the course of a discussion, in the 1898 Debates.
GUMMOW J: No, I am talking about 1891 and then it eventually pops out in the form it now is but it was rejected in a more stringent form. Another clue is 34(i). That seems, initially, to attach as a qualification for membership of the House, entitlement to vote, so section 30 could be used indirectly to deny qualification of membership.
MR BENNETT: Yes, your Honour, and that is the current structure, as I will show your Honour in a moment. There is a provision of the Electoral Act which requires one to be qualified as an elector in order to stand for either House. I will take your Honour to that in a moment.
GUMMOW J: It is not only a question of representative democracy, it is a question of participation under section 128, is it not, because participation in questions as to alteration of constitution are linked to qualification to vote in the House, are they not?
MR BENNETT: Yes, there are some aspects - section 128 has been relied on in relation to the dicta concerning the inability of the Parliament to take away the right to vote from women.
GUMMOW J: Yes.
MR BENNETT: It is a useful – I use the word “clue” again.
GUMMOW J: The third paragraph at 128 contains the expression “adult suffrage”. What did they mean by that, I wonder, by “adult suffrage”?
MR BENNETT: Your Honour, it had a denotation and a connotation, we would say, or a concept and a conception.
GUMMOW J: It was designed to preserve the situation where there were some States which already had female franchise, but only one half of the electors were going to be counted.
MR BENNETT: Yes. Adult suffrage was a sort of code word for men and women voting, as I understand it, at the time.
CRENNAN J: And one man, one vote, that is to say, no plural voting.
MR BENNETT: Yes.
GUMMOW J: No property.
CRENNAN J: And no property.
MR BENNETT: Yes.
CRENNAN J: It was code for all those things.
GUMMOW J: Yes.
MR BENNETT: Yes.
KIRBY J: One man, one vote came a bit of a cropper in McKinlay.
MR BENNETT: Yes. One vote, one value became a bit of a cropper in McKinlay.
KIRBY J: I think the same idea is in both expressions, politically – in political science.
MR BENNETT: Yes. Your Honour, there is a technical difference but, of course, this Court in McKinlay took a view of that.
KIRBY J: But would one not say that in a rational constitutional scheme a provision having a more rigorous set of requirements for those who have the august responsibility of sitting in the national Parliament would not necessarily flow on to those who, as citizens, simply take their part once every three years in voting for the Parliament? I mean, one could understand that in a rational constitutional scheme, and I would have thought ours, that you would expect and have a more rigorous set of requirements to be elected to Parliament than to be simply a voter taking that occasional part in the governance of your country that is involved in a triennial visit to the ballot box.
MR BENNETT: That is what we do have, your Honour, because section 163 of the Electoral Act provides that, “Qualifications for nomination” is:
(1) A person who:
(a) has reached the age of 18 years;
(b) is an Australian citizen; and
(c) is either:(i)an elector entitled to vote at a House of Representatives election; or
(ii) a person qualified to become such an elector ‑ ‑ ‑
KIRBY J: No, but I am just calling to attention the paradox that Justice Gummow noted yesterday that at least on the face of the Constitution it is not every imprisonment that puts you out of being elected as a Member of Parliament, but on the Electoral Act, as it now is enacted, it is every offence that puts you out of the much more transient, less significant participation by being an elector.
MR BENNETT: Your Honour, it is a different provision which is both broader and narrower.
KIRBY J: It is a disharmony.
MR BENNETT: But, your Honour, there is no requirement that there be a harmony.
KIRBY J: But you are not put out for bankruptcy from voting and it is not relevant to put you out for a contract with the Crown and yet you are put out from any offence of imprisonment except in the person on parole and so on, or remand.
MR BENNETT: You are not put out for bankruptcy. Bankruptcy is only a disqualification for sitting in the House and being elected to it.
KIRBY J: But you are not disqualified from voting by being bankrupt.
MR BENNETT: No, your Honour.
KIRBY J: Or ever having been bankrupt.
MR BENNETT: No.
KIRBY J: I am just saying that one would expect a more rigorous set of requirements for being elected to Parliament and when you look at them, they are more rigorous in certain respects. Bankruptcy is the most obvious. But then you look at the imprisonment and you have this disharmony between the disqualification from being elected and the disqualification which is broad and universal for the lesser function of voting.
MR BENNETT: Section 163 removes the disharmony.
KIRBY J: That is a question too as to whether the Parliament is envisaged as having the absolutism that the Constitution denies. I mean, just as one might say that one looks again at the disqualification of the Solicitor‑General of Australia for bankruptcy, there is a view abroad, you know, that you look to living it down, criminal offences and criminal convictions.
MR BENNETT: Yes, and one is discharged from bankruptcy. Your Honour, section 34 of the Constitution is another of the “until the Parliament otherwise provides” and deals with qualifications for membership of the House of Representatives. Pursuant to that provision, section 163 of the Electoral Act lays down those qualifications and one of them is ‑ ‑ ‑
GUMMOW J: It does not require residence, does it?
MR BENNETT: You have to be an elector or a person qualified to become such an elector and that picks up all the requirements of that.
KIRBY J: We do not have to deal with it in this case. All I am saying to you is, where the Constitution on its face expressly disqualifies any person from being chosen as a Senator or a member of the House of Representatives for a limited class of criminal offences, it is a question in my mind as to whether Parliament can expand that category of disqualification and it is an expressio unius question.
MR BENNETT: Yes.
KIRBY J: You do not have to solve it now, but I am just a little surprised that Parliament has seen fit to attempt to override the Constitution, which in this respect at least was a little bit more enlightened.
MR BENNETT: Your Honour, that is a matter of reading sections 34 and 44 together. Again, one gives certain powers to the Parliament and the other sets out, in effect, a default position and a position that otherwise prevails. Section 34 cannot mean that the qualification can never exclude anyone who is not disqualified by section 44. If it had that meaning, it would be meaningless. It would be a totally ineffective provision. One has to give meaning to section 34 and that is what these provisions do. The suggested anomaly that the exclusion from voting is wider than the exclusion from membership is removed by section 163.
All that may be wider is the exclusion from voting may be wider than the limited disqualification for members of the House at the time of the Constitution, but it is not a current problem. I should also remind your Honours of section 166 which provides for a nomination being in Form C and Form C which is on pages 417 and 418 of the reprint I have, but the candidate has to declare:
I am qualified under the Constitution and the laws of the Commonwealth to be elected as a Senator -
It is hardly necessary for the Act to do it but it does pick up the constitutional limitations.
I have referred your Honours to the practice in the States at the time – I will not take your Honours to the details of that, it is in the schedules your Honours have. If your Honours look at annexure B to our submissions your Honours see that in the United Kingdom there was a disqualification of:
[A]ny . . . person hereafter convicted of treason or felony [for anything] exceeding twelve months, . . . shall become, and (until he shall have suffered the punishment to which he had been sentenced . . . or shall receive a free pardon from Her Majesty), shall continue thenceforth incapable of . . . being elected, or sitting, or voting as a member of either House of Parliament, or of exercising any right of suffrage or other parliamentary or municipal franchise whatever within England, Wales or Ireland.
The schedule then goes through the position in the various colonies and your Honours see – I will not take your Honours to it – there are disqualifications in each of the colonies of slightly different degrees. The history of that is set out in annexure D where we go through the ‑ ‑ ‑
KIRBY J: Of course, all that was written at a time when the theory of the corruption of the blood of convicted felons existed.
MR BENNETT: It remained in every State and in the ACT right up to date and that is annexure D which shows that there have been some sort ‑ ‑ ‑
KIRBY J: Yes, but following the decision of this Court in Dugan v Mirror Newspapers there was a general shock and revulsion at such a theory and I think most of the States moved to amend and repeal that consequence of conviction of felonies.
MR BENNETT: Not the consequence of disenfranchisement, your Honour, but the history is set out in Annexure D. It is very detailed and it states ‑ ‑ ‑
KIRBY J: Do you stand before this Court and support the theory of the corruption of the blood of convicted felons?
MR BENNETT: No, your Honour, I do not need to support or reject it.
KIRBY J: There are some similarities, you know.
MR BENNETT: I will come to the question of that type of factor in relation to it but it is not a corruption of the blood in relation to it; it is a disqualification which at the moment I am simply demonstrating has been virtually universal in Australia.
KIRBY J: I think Tasmania had a general exclusion of anyone serving a sentence, did it not? I thought I read that in the documentation, but that was exceptional. The usual Australian provision was similar to the provision in the Federal Constitution.
MR BENNETT: I think that is so, your Honour, but one would have to go to the detail and see the specific ones. My point at the moment is not that one place may have a stricter rule, one may have a more lenient rule. My point is that some type of disqualification of this general character is something which is virtually universal.
KIRBY J: It is just that I repeat – and you can say what you want – that it is surprising that in our modern, multicultural, diverse society, which has included women, which has included Aboriginals, which has welcomed people from all parts of the world, that we have now gone in a different direction in respect of prisoners. It seems to be uncongenial to the design of the Constitution and how it has developed.
MR BENNETT: Your Honour, it is a type of disqualification the desirability of which is left to Parliament. It is within a category where, in my respectful submission, it falls within sections 30 and 51(xxxvi) rather than the very general words of 7 and 24.
CRENNAN J: But even accepting it is left to Parliament, Mr Bennett, as you put it, would there not be the need, having regard to other parts of the Constitution like 128 and the notion of representative democracy, to ask the question whether or not it is rationally based, whether or not it is arbitrary, which is to pick up an adjective Mr Merkel kept repeating? Would not that question need to be asked of this kind of temporary electoral disqualification?
MR BENNETT: No, your Honour, it does not except to the extent that in what I have called the multifactorial analysis, one might look more strictly at something that did not have the exclusion of a group without apparent rational basis, but this clearly is not in that category. My friend’s attack on rationality is largely based on the fact that someone could be serving a short sentence for a minor offence and that a person might serve a longer sentence but not be in prison over an election or a short sentence and be in prison over an election.
Our answer to that is that when one legislates in relation to anything, really, one needs to draw lines and one could always criticise the legislation by saying this case is very close to the line and therefore it is arbitrary which side of the line it falls on.
CRENNAN J: But should you be drawing arbitrary lines when you are talking about representative democracy?
MR BENNETT: One draws lines with age, for example. One might find one person of 18 and one day who is very immature and has no understanding of the significance of voting and someone who is 17 and 364 days who is a student of political science, but that is the result of drawing a line. That does not make the line invalid.
CRENNAN J: This is a line in relation to people who are otherwise qualified. In a sense, they have the franchise because they are on the roll but they have a temporary disqualification from exercising the franchise.
MR BENNETT: Your Honour, that is the second section of my submissions, the distinction between qualification and disqualification and I will come to that. The general point we make is that this is a category in which some persons have been almost universally disqualified from franchises. May I just take your Honours to the international parallels which are ‑ ‑ ‑
GUMMOW J: Before we go to them, can I just interrupt you a minute, Mr Solicitor. Can we just go back to 34 and 44 of the Constitution which I am a bit puzzled about. Am I right in thinking that one looks at 44 and sees those categories set out there, am I correct in thinking that your submission is that the power of the Parliament under 34 is a power to supplement 44, for example, to make it wider, in effect? Look at 44(iii), “is an undischarged bankrupt or insolvent”. Now there are schemes of arrangement under the later species of legislation so that under 34 you could achieve the result that it was an undischarged bankrupt or insolvent or person whose affairs are under a scheme of administration.
MR BENNETT: One could, your Honour. One is not restricted by the limits of section 44. If one were, section 34 would have no operation.
GUMMOW J: No, 34 is about qualification of members and 44 is about disqualification which goes back to the point Justice Crennan was putting to you.
MR BENNETT: Yes, but nevertheless, your Honour, we would submit that 44 simply lays down a number of fixed disqualifications but it does not prevent there being others, whether similar or different. One cannot remove the disqualifications in section 44 but one can have more limited qualification. That is the effect of reading 34 and 44 together because some of the provisions of section 44 are absolutes, some have a quantitative element or a qualitative element.
For example, one could under section 34 have excluded people of the category of Senator Webster, your Honour may recall, who had a family company which had a direct or indirect pecuniary interest. Your Honours recall the case and the Court of Disputed Returns, consisting of the Chief Justice, held that that was not caught by section 44(v). It would be open to have legislation under section 34 which catches that or, in the case of the Senate, section 8.
It is of interest that the intervening qualification laid down by section 44 picked up the requirement that one “be an elector entitled to vote” so what is now done by section 163 was then done, until that, by section 34(i).
HAYNE J: But a critical step in your argument is, is it not, to read section 30 as empowering legislation which prescribes who may vote – I avoid the words “qualification” and “disqualification” for the moment – but prescribes who may vote in terms that differ in this respect from identification of those who may be chosen and sit, in particular, under 44(ii). A subset of that argument is that section 34 may pick up what is done under section 30 to alter – I leave aside enlarge or diminish – the consequences that would flow from 44.
MR BENNETT: No, your Honour, not alter the consequences but provide ‑ ‑ ‑
HAYNE J: The expression is poor, but alter the result of those who may be chosen and sit.
MR BENNETT: We would simply say, “go further than section 44 but not do less than section 44”.
HAYNE J: A part of that argument seems to me to be – correct me if I am wrong – fastening upon “Until the Parliament otherwise provides” where it appears both in 30 and in 34 and seems to be an argument that, unless read in this fashion, 30 and 34 what, are given no work to do, reduced work to do. How far do you put this point, Mr Solicitor?
MR BENNETT: It would be very much reduced work depending on how far one took the principle. Section 44 simply lays down certain disqualifications. It does not prevent other disqualifications or extensions of those disqualifications to the extent that they are permitted by section 30. That is the result simply of reading the two provisions together.
HAYNE J: But the outer limit of 30 and 34 is provided by 7 and 24 “chosen by the people” and that outer limit involves generality, it involves participation, does it not? “Chosen by the people” is an expression of generality, “chosen by the people” connotes participation in the process and to leap ahead it seems to me that the bottom line to your argument must come down eventually to the proposition that State imposed impediments on participation constituted by imprisonment do not deny either generality or participation. That seems to me to be the absolute bottom line of where you have to go, but you will take a little while to get there, I suspect, Mr Solicitor.
MR BENNETT: Your Honour, that is one way of putting one aspect of the test. The test is more open than that, but it is ‑ ‑ ‑
HAYNE J: More room to move.
MR BENNETT: Yes.
HAYNE J: I am trying to find out where the wriggle room is, Mr Solicitor.
MR BENNETT: Your Honour, there is a great deal of it, we would submit. It is of significance, of course, that to the extent that 34 picks up 30 in part by its reference to being qualified to be an elector and 30 in turn initially picked up the State provisions, there would have been – and we know there were – State provisions which went further than section 44. So the Constitution itself contemplated that under section 30, and we would say also section 34, it was possible that there would be disqualifications for membership beyond those imposed on being chosen or sitting in section 44. So that was something which was not seen as involving any inconsistency.
Section 44 really is only a set of minimum disqualifications. What other disqualifications there are to be is left to the interlocutory provisions until Parliament otherwise provides and the discretion of the legislature after it otherwise provides, or when it otherwise provides.
GUMMOW J: Are there any restraints on the power under 34?
MR BENNETT: I am sorry, your Honour?
GUMMOW J: Sections 7 and 24 do not speak to section 34.
MR BENNETT: No, they do not, your Honour.
GUMMOW J: So is there any limit around 34?
MR BENNETT: They flow into it, your Honour. If a group cannot be excluded from being electors, then they are not excluded by section 34, although there may be some other form of exclusion. There may be a question as to what implication one gets in relation to the width of people who can be members from sections 7 and 24. That has never been looked at by this Court and that is something for another day, but I simply refer to the possibility that one could read something into that. If one had a law which restricted members to people who were already members and their nominees, the result would be that the legislatures would not be chosen by the people. So to that extent there has to be a partial yes in answer to your Honour’s question.
There is a reference in one of the judgments to the fact that the members would not be chosen by the people if the selection was solely from a list of candidates nominated by the government and that is obviously ‑ ‑ ‑
GUMMOW J: Justice Gaudron considered that, I think. I think Justice Gaudron gave an example of that at one stage.
MR BENNETT: Yes, and that must be right, your Honour. Section 44, of course, also has an operation after one has become elected. It operates at different times to the other provisions.
GUMMOW J: Yes.
MR BENNETT: I was about to show your Honours the ‑ ‑ ‑
GUMMOW J: But you are not saying that you could use 34 to speak after the person has sat, are you?
MR BENNETT: “The qualifications of a member”, your Honour, at first sight one would have thought that may involve continuing qualification. But, again, I say that in the absence if knowing if the question has ever been looked at. I do not think it has.
CRENNAN J: Section 45(i), of course, refers back to “disabilities” in the “preceding section” and becoming subject to one of them.
MR BENNETT: Yes. Section 45(i) seems to be a machinery provision in relation to 44 because 44 says, “Any person who” ‑ ‑ ‑
GUMMOW J: That is what I am asking you. Are you saying 34 can be used to bring about a supplementary cause for there to be a vacancy?
MR BENNETT: Probably yes, your Honour, but there might be an argument that there is an expressio unius because of section 45 suggesting that qualification in section 34 merely means qualification for election, but probably the better view would be that it is a continuing qualification, although section 45 seems to be limited to section 44 and not to relate back to section 34. In Sauvé No 2 which is reported in ‑ ‑ ‑
KIRBY J: Are you still on your first item or have you moved on to ‑ ‑ ‑
MR BENNETT: Yes, I am still on the first item, your Honour. What I am using Sauvé for at the moment is it is a convenient place that lists the situation in the United States and in Europe and around the world and it is a convenient place to go to to get that information. It is reported in 218 D.L.R. (4th) at page 577 and the dissenting judgment conveniently sets out the position elsewhere. Starting at paragraph [119] at page 635 Justice Gonthier, at the very bottom of the page, cites Professor Tribe as saying:
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 –
et cetera. It goes on on the next page ‑ ‑ ‑
GUMMOW J: The sting is in the last sentence of Professor Tribe, is it not:
a community should be empowered to exclude from its elections persons with no real nexus to the community as such.
MR BENNETT: Yes, that is one example following the words “If nothing else”.
GUMMOW J: Yes.
MR BENNETT: It is not intended to be exhaustive, we would submit, your Honour. He goes on in paragraph [122] ‑ ‑ ‑
KIRBY J: That would not apply here because all the prisoners are going to come out, or most of them are, and be back in society and be governed by the government that has been elected without their participation.
MR BENNETT: Yes, that on its own would not – but it is not a test.
KIRBY J: We are still looking for your test. I am beginning to think Mr Merkel might have had a point when he said you were very vague about – except for the word “multifactorial”, which I rather like, but it has not yet got down to something concrete.
MR BENNETT: Your Honour, and it will not. I have conceded that.
KIRBY J: I live in hope.
MR BENNETT: Yes. The judgment goes on at paragraph [122] to deal with the situation in the diverse range of balances which exist in Canada. I will not take your Honours through that. Paragraph [124] returns to the United States and at the bottom of the page in paragraph [125] he says:
A general overview yields the conclusion that nearly all states (48 of 50 plus the District of Columbia) disqualify inmates incarcerated for felony offences for both state and federal elections, while some disenfranchise offenders permanently. Only two states do not disqualify at all: Maine and Vermont. In November 2000, the Massachusetts electorate voted in favour of a State constitutional amendment limiting prisoners’ voting rights.
A majority of the states which deprive inmates of the right to vote do so for the entirety of their sentences, including parole –
which goes further than us but not further than the constitutional prohibition –
32 states prohibit felons from voting while they are on parole and 28 of those 32 also exclude felony probationers. Other states allow a convicted felon to vote once incarceration ends. Some states only remove the vote if the criminal has committed certain crimes. A felon automatically regains the right to vote in most states upon completion of his or her sentence. In a small number of states, a felon must apply for a pardon to be permitted to vote. As mentioned above, some states even remove the vote from convicted felons even after they have completed their sentences and paroles. This practice was upheld as constitutional by the U.S. Supreme Court in Richardson v. Ramirez, 418 U.S. 24 (1974).
Looking now to Europe –
and it refers to the First Protocol to the European Convention on Human Rights ‑ ‑ ‑
KIRBY J: There apparently have been three cases from the Netherlands. What is the situation there?
MR BENNETT: That is then described, your Honour.
In H. v Netherlands, supra, the Commission established that Art. 3 of the First Protocol to the ECHR recognizes the principle of universal suffrage, but it also noted that the right to vote is not absolute and noted that “a large number of State Parties to the Convention have adopted legislation whereby the right to vote of a prisoner serving a term of imprisonment of a specific duration is suspended in certain cases, even beyond the duration of the sentence”. The general principle . . . was addressed as follows –
This is by the European Court of Human Rights:
Such restrictions can be explained by the notion of dishonour that certain convictions carry with them for a specific period, which may be taken into consideration by legislation in respect of the exercise of political rights. Although, at first glance, it may seem inflexible that a prison sentence of more than one year should always result in the suspension of the exercise of the right to vote for three years, the Commission does not feel that such a measure goes beyond the restrictions justifiable in the context of Article 3 of the Protocol.
There is a more recent case where the Commission said:
. . . its constant case-law to the effect that, although Article 3 of the Protocol No 1 implies a recognition of the principle of universal suffrage . . . this right is neither absolute nor without limitations but subject to such restrictions which are not arbitrary and which do not affect the expression of the opinion of the people in the choice of the legislature.
That is rather like the generality that I have been expressing. In the same case, the Commission noted ‑ ‑ ‑
KIRBY J: Non‑arbitrariness is a little more concrete than not affecting the overall outcome?
MR BENNETT: Yes. But he then goes on to say in relation to that, your Honour, that:
In that same case, the Commission noted that it did not consider the disenfranchisement of prisoners for the duration of their incarceration to affect the expression of the opinion of the people in their choice of the legislature.
That is fairly close to what we are talking about here. Then there is another case of Mathieu‑Mohin v Belgium referred to.
KIRBY J: All of these are before Haig, of course?
MR BENNETT: Yes, but what I was reading the case for is the next paragraph, paragraph [130] which says:
European countries demonstrate a broad range of practices. Eighteen European countries have no form of electoral ban –
and they are listed:
In Greece, prisoners serving life sentences or indefinite sentences are disqualified; otherwise the matter is left to the discretion of the court. In some other European countries, electoral disqualification depends on the crime committed or the length of the sentence: Austria, Malta and San Marino ban all prisoners serving more than one year from voting; Belgium disqualifies all offenders serving sentences of four months or more; Italy disenfranchises based on the crime committed and/or the sentence length; Norway removes the vote for prisoners sentenced for specific offences; and in France and Germany, the disqualification of a prisoner is dependent upon the sentence handed down by the court . . . Armenia, Bulgaria, the Czech Republic, Estonia, Hungary, Luxembourg, Romania and Russia all have complete bans for sentenced offenders.
Australia, New Zealand and the United Kingdom all disenfranchise at least some of the inmate population.
They go on to talk about us. I will not take your Honours through that. At paragraph [134] – this is the dissenting judgment, I do stress – he says:
Therefore, when one looks to the range of balances selected by Canadian provinces, other countries, and as reflected in international instruments, it becomes clear that in theory there is not a single response to the question at hand. The overview presents a range of reasonable and rational balances which have been struck. On the spectrum which is the result of the above overview, Canada’s line appears quite moderate.
Your Honours, I do not propose to take your Honours through the whole of the reasoning in the dissenting judgment, but may I simply say this that my learned friend has taken your Honours to the majority judgment. It was a 5:4 decision and we would submit that as a matter of weight the minority decision is entitled to respect and should be read at least to the extent that one reads the majority judgment as showing the other point of view.
HAYNE J: Paragraph [93] of Justice Gonthier’s reasons identifies what were seen as the competing philosophies in play. Neither of them is, I think, articulated quite in those terms on either side of the record. Perhaps Mr Merkel embraces one of them.
MR BENNETT: Yes. There are various justifications put forward. The clearest, of course, is what was put forward by the Chief Justice of India in ‑ ‑ ‑
KIRBY J: We were told there is a provision in the Indian Constitution that specifically contemplates disqualification.
MR BENNETT: There is, your Honour, and for that reason I can only cite India as an example of the general international acceptance that this is a reasonable criterion in a liberal democracy for exclusion. What I did want to cite to your Honours was one passage from the judgment of the Chief Justice in ‑ ‑ ‑
GUMMOW J: It is all about the police force, is it not?
MR BENNETT: Yes.
HAYNE J: The premise at paragraph 5 is a premise that reads a little oddly to our eyes perhaps:
It is well known that for the conduct of free, fair and orderly elections, there is need to deploy considerable police force.
MR BENNETT: No, but there is a further basis he puts it on, your Honours. It is Anukul Chandra Pradhan v Union of India AIR 1997 Supreme Court 2814. In paragraph 5 Chief Justice Verma said this:
Criminalisation of politics is the bane of society and negation of democracy. It is subversive of free and fair elections which is a basic feature of the Constitution. Thus, a provision made in the election law to promote the object of free and fair elections and facilitate maintenance of law and order which are the essence of democracy must, therefore, be so viewed. More elbow room to the legislature for classification has to be available to achieve the professed object.
KIRBY J: But it does seem to overstate things, with respect to Chief Justice Verma, to say that the people who are locked up in prison are going somehow by their participation in the vote to criminalise politics and destroy the probity of elections. The probity of elections is assured by the Commission which, as in India, has a very fine record in that respect and the criminalisation of politics, you really cannot do much about that if you are inside.
MR BENNETT: If you vote for people who have views or attitudes associated with criminality, but ‑ ‑ ‑
KIRBY J: They might just have different views about lengths of imprisonment or things of that kind, legitimate different views.
MR BENNETT: They might, your Honour. I simply cite it to counterbalance the generalisations that my learned friend has cited from the majority judgment in Sauvé to show that there are philosophical arguments, and they are only philosophical, that can be put in favour of both positions, but that is not, we submit, the decision this Court has to make.
Now, it is important to note that four Justices of this Court in McKinlay 135 CLR specifically referred to the validity of the exclusion of this category. I will just remind your Honours of those passages. The first is Justice Gibbs at page 44. In saying that the word “people” cannot mean all the people, he says at point 5 of the page:
To give it that meaning would, however, lead to a manifest absurdity – it would mean that babes in arms, lunatics and criminals were entitled to vote.
The importance of the passage is the throwaway reference to criminals indicates that his Honour regarded it as an obvious category for possible exclusion. Justice Stephen at page 56 ‑ ‑ ‑
KIRBY J: One of the points Mr Merkel made was that this does not attack criminals as such; it attacks only those people who are in prison who are a very small proportion of criminals.
MR BENNETT: I am sorry, your Honour?
KIRBY J: I say that Mr Merkel’s point relevant to arbitrariness is that it is not attacking criminals as such. “Babes in arms” is really not a way of describing someone who is 17.
MR BENNETT: No, your Honour, it is not. The point his Honour is making is that if one treated the word “people” as being absolutely universal, babies are people.
KIRBY J: Does this mean that you would support a provision that said, as some States of the United States have said, that even a person who has served his imprisonment will, because a criminal, a member of the criminal classes, be disqualified forever from voting as an elector of the Commonwealth?
MR BENNETT: Your Honour, the answer to that is that it is obviously highly unlikely that would occur, but Parliament has considerable ‑ ‑ ‑
KIRBY J: I would not be so sure about that.
MR BENNETT: - - - latitude in this area and that is a matter the Court would have to determine then. It is not something which one can really answer without a good deal more material and a good deal more information about various matters.
KIRBY J: I only ask it because you put up a proposition that criminals as such can be ‑ ‑ ‑
MR BENNETT: I am not citing it for that purpose, your Honour. The way I cite that passage is that the word “criminals” is used in a loose and general sense. What it means there is that class of criminals which is excluded by the legislation. That is what the word means in that context. In one sense, I suppose, a person who commits a parking offence is a criminal, but clearly the word is not used in any specific sense as a term of art. The same sort of reference appears in the judgment of Justice Stephen at page 56 point 8. He says that:
The extent of the franchise; whether it extends to all residents or to all residents over a given age or is restricted, perhaps, to male British subjects over twenty-one, maybe with superadded property qualification and whether more or less replete with disqualifications on grounds of incapacity or criminality or the like, it will none the less constitute an enfranchisement of electors.
KIRBY J: That is a very passive view of what the Constitution is all about, with respect to his Honour.
MR BENNETT: Your Honour, the point I get from it is that in listing the sort of disqualification that is permissible, this category of disqualification is regarded as an obvious one. One finds the same in the judgment of Justices McTiernan and Jacobs at page 37 at point 4 just before the end of the long paragraph. Six lines before the end of it their Honours say:
The exceptions in s 39(4) and (5) and the specification of a minimum age of eighteen years do not take from those electors the quality whereby their choice can be described as a choice by the people regarded collectively.
Section 4 at the time provided:
No person who is of unsound mind and no person attainted of treason, or who has been convicted and is under sentence or subject to be sentenced for any offence punishable under the law of any part of the King’s dominions by imprisonment for one year or longer –
is entitled to have his name placed on the roll. So it was an offence punishable by one year or longer and the person had to be convicted and under sentence for.
Their Honours regarded that as within the permissible area. So that is four of the seven Justices in that case who specifically refer to prisoners. The same result is implicit in the judgments of the Chief Justice and Justice Mason. I will just show your Honour very quickly those passages. They do not expressly refer to the matter but the Chief Justice at page 18, just above his Honour’s name at point 2 on the page says:
The expression that section –
section 7 –
refers to the people of the State. This cannot mean that all the people of the States are to have a vote in a Senate election. If the people of the State is equated with the population, it would be both an unreasonable and impractical interpretation of the expression to read it as securing the franchise to every child and teenager in the population. If, on the other hand, the word “people” is read as referring to the electors of the State, it is quite evident from other provisions of Pt III that adult suffrage in each State was not intended or required by the expression “directly chosen by the people”.
While we do not put his Honour’s position as the established position I simply say that that passage shows that his Honour would support the proposition in relation to prisoners.
GUMMOW J: The last paragraph on page 18 is odd, is it not, the second paragraph on page 18 of McKinlay, “Section 30 is not made subject to the Constitution.”
MR BENNETT: Yes.
GUMMOW J: Section 51(xxxvi) is, though.
MR BENNETT: Yes. There is a question as to when the words “subject to this Constitution” appear in section 51 and apply to section 51(xxxvi), how you apply them when you are picking up a section which is not said to be subject to the Constitution. But that is a very technical piece of Constitution.
GUMMOW J: There may be a moral in that because it was argued on November 3 and it was decided on December 1, 1975, remember?
MR BENNETT: Yes. Your Honours, I have got myself into trouble in this Court before for referring contemptuously to ex tempore judgments, but there is an analogy.
KIRBY J: Chief Justice Barwick on 19 tells us where we came from, about the:
exception in the case of aboriginal natives of Australia, India, China and the South Sea Islands, unless they satisfied the property qualification.
MR BENNETT: Yes. That was in Queensland, your Honour. He is referring to Queensland there. He is not referring to a general provision. In Queensland in the 19th century. Now, Justice Mason, before I leave this, at page 62 also takes a position which necessarily…..the result. At the second‑last line on page 61 his Honour says:
By commencing with the words “Until Parliament otherwise provides” it enables the Parliament under s. 51(xxxvi.) to “make laws for determining the divisions in each State . . . This grant of power should be construed with “all the generality which the words used admit”: it should be applied “without making implications or imposing limitations which are not found in the express words” . . .
Next, it is to be noted that the Constitution does not guarantee or insist upon universal adult suffrage. Sections 25 and 30 recognize that people may be denied the right to vote by State law until Parliament otherwise provides or by a law of the Commonwealth Parliament, subject only to the prohibition contained in s. 41 –
which, as we know is spent:
It is not to be supposed that contemporaneously with these provisions, acknowledging as they did that people could be disqualified as electors in Federal elections, s. 24 insists upon a practical equality in electoral divisions –
That was, of course, the question in the case, but it is clear that his Honour did not regard the provisions as guaranteeing or insisting ‑ ‑ ‑
GUMMOW J: He did not regard them in 1975 that way, at any rate.
MR BENNETT: Your Honour, yes, but ‑ ‑ ‑
KIRBY J: Do you advance in 2007 that universal suffrage, as a general principle, of adult citizens can be taken away?
MR BENNETT: Your Honour, if that question is intended to exclude the possibility of removal of the franchise from a group or from certain people ‑ ‑ ‑
KIRBY J: We have got you so far. You do not say it for women, you do not say it for Aboriginals, you do not say it for people coming from other countries because of their race or skin colour.
MR BENNETT: I do say it for people under an age which may be varied up or down. I do say it for a more liberal or more restrictive definition of mental incapacity. I do say it for the degree of criminality or service of a sentence which is regarded as appropriate as a disqualification. I do say it in relation to disqualifications of the narrow type of divisional returning officers and so on which I have referred to.
KIRBY J: You do not say it for bankruptcy and so far you have not been pushed to say it for people over the age of 70, a class with whom I am becoming much more interested.
GUMMOW J: Does it matter, Mr Solicitor, that the adult suffrage that appears in the Constitution is now more than that, there is compulsion and has been for 80 years.
MR BENNETT: Your Honour, that is one of the background ‑ ‑ ‑
GUMMOW J: That was Mr Langer’s great complaint, you will remember.
MR BENNETT: Yes. The fact that it is compulsory may have an effect in determining whether the exclusion of particular groups is acceptable or not in relation to ‑ ‑ ‑
HAYNE J: “Acceptable” masks it, Mr Solicitor. Compulsion may perhaps bear upon the significance to be attached to a State‑imposed impediment to freedom. If you are compelled to vote, yet at the same time the State constrains your freedom, in particular, constrains your freedom to participate in any aspect of the electoral process except by hypothesis the possibility of casting a ballot at the mobile polling station that comes within the walls ‑ ‑ ‑
MR BENNETT: Or by personal vote.
HAYNE J: ‑ ‑ ‑ that may bear upon the significance that is to be attached to State‑imposed impediments. But, acceptable? What is the content of this proposition that you advance?
MR BENNETT: Your Honour, I was not using the word as suggesting the test, I was using it as a shorthand expression for constitutionally permissible. I did not intend it. It is not put as part of the test in any sense, it is a shorthand word.
GUMMOW J: But is voting compulsory in Canada? I do not think so.
MR BENNETT: No, your Honour, no.
KIRBY J: I think in the Canadian case it said only Belgium. Justice Hayne’s question is something that has been troubling me, that it is one thing in a country which leaves it up to you to vote or not to vote but in a nation which, since 1923 I think it is, has had this principle that we all have the right and the duty to vote and we have very, very high returns of our electors, that it is a different thing then to disqualify a citizen from voting in a country with that electoral ethos and culture.
MR BENNETT: Your Honour, it cannot help my learned friend’s argument because the removal of the right to vote necessarily removes the obligation to vote.
KIRBY J: That is a legal and technical answer and I accept that, but what I am saying is, you have to weigh the removal of the prisoner vote from a society where the culture is that of everyone votes and everyone takes responsibility for the government that is elected. No one can say, “I didn’t vote for them, I’m not responsible” as some people say in other countries. We cannot say that. All of us have to say, including judges and everyone “We voted and that’s” ‑ ‑ ‑
MR BENNETT: Anyone can say one voted for the opposition and therefore is not responsible for what the government does.
HAYNE J: But half the populace usually did.
MR BENNETT: Yes, but the other side of that coin is that one is taking away both the right and an obligation. There are, no doubt, people who would regard the taking away of the obligation as a benefit.
GUMMOW J: But this common understanding idea, I think you would have to say, includes this notion of compulsory exercise of franchise.
MR BENNETT: Yes, you have to accept that.
GLEESON CJ: Is that a convenient time, Mr Solicitor?
MR BENNETT: Yes, your Honour.
GLEESON CJ: We will adjourn until 2.15 pm.
AT 12.44 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.17 PM:
GLEESON CJ: Yes, Mr Solicitor.
MR BENNETT: If the Court pleases. Your Honours, in relation to the orders made by consent this morning, might I ask your Honours by consent to make a minor amendment to them. I apologise for this.
KIRBY J: It slipped under the radar, did it?
MR BENNETT: Yes, your Honour. In paragraph 5, after “Questions 3A, 3B and 3C”, could your Honours add “, order 4”. Your Honours do not have it?
GLEESON CJ: The document that was handed up to us was headed “Amendment of special case pursuant to ‑ ‑ ‑
MR BENNETT: No, I am sorry, your Honours. I thought my friend had handed it up. These are the orders which I thought your Honours made.
GLEESON CJ: He just read them onto the record.
MR BENNETT: This is a typed-out version.
KIRBY J: What you are handing us now are the correct orders, are they?
MR BENNETT: Before the amendment I am just making, your Honour, yes. It is only two words and a comma. It is just to enable us to reply if my friend puts anything in his submissions pursuant to order 4.
GLEESON CJ: What is the change?
MR BENNETT: That in paragraph 5, after “3C” there should be inserted “, order 4”.
KIRBY J: I did not hear the words.
MR BENNETT: A comma, your Honour - that is a punctuation mark.
KIRBY J: Yes, I heard the “comma”. I do know what a comma is.
MR BENNETT: Then “order 4”, your Honour.
GLEESON CJ: Yes, we have that.
MR BENNETT: I was asked this morning at one stage about the Convention Debates. There is one very oblique and very casual reference in an aside. I will not take your Honours to it, I will just tell your Honours where it is. At page 1853 of the debates of 3 March 1898 there is some discussion about the word “qualification” and Mr Kingston interjects, “An elector would be liable to be disqualified for crime”. The only point is that it was obviously an example which was present to the minds of the founders. Nothing specific turns on it.
I said I would check the Law Officers Act and I regret to inform your Honours that I am liable to be removed in the event of bankruptcy. The provision about judges in Canada being disqualified from voting I am told has been repealed. I am not aware of any case in which it was ever discussed.
GLEESON CJ: What was the response of the Canadian legislature to the decision in Sauvé?
MR BENNETT: I do not know the answer to that, your Honour. Yes, I am told that it was left where it lay, your Honour.
KIRBY J: In Canada there is no disqualification for prisoners?
MR BENNETT: That is the position, yes. In relation to Hirst, I simply remind your Honours that, of course, the English courts had reached the opposite result before the matter went to the Grand Chamber. There is a reference to that in the report. The decision of the Grand Chamber of course, was, by majority, 12 to five, that the law had a legitimate aim but was not proportionate and proportionate in the European sense means that there is no lesser way in which the result could have been achieved.
GLEESON CJ: That is also what it means in the Canadian sense.
MR BENNETT: Yes, your Honour, it is not something of great relevance to us.
KIRBY J: You say it is not much relevance to us but we have three parliamentary democracies which have had the same tradition which have ended up in the situation for which the plaintiff principally argues. I mean, the United Kingdom, Canada and South Africa.
MR BENNETT: In each case, your Honour, under the control or influence of overriding bill of rights provisions, which we do not have.
KIRBY J: Yes, but, as this Court has said, our Constitution has certain inherent rights in it. I mean, that is the whole point of the implied freedom of expression as incidental to elections. How much closer to the substance of elections is the right to vote?
MR BENNETT: The subject matter, your Honour, is analogous. The legal principles are quite different.
KIRBY J: Anyway, you agree that Parliament cannot take away the rights of women, of Aboriginals and of other classes. The only question is, is this one of the classes that Parliament cannot take away, according to your own theories?
MR BENNETT: Your Honour, we have been submitting that this case is a long way to the other side of that line. In relation to the European decision, I remind your Honours of what Justice Dawson said – your Honours need not go to this – in Leask v The Commonwealth 187 CLR 579 at page 601 where he discussed the test in relation to the European Court of Justice and indicated its inappropriateness under our Constitution. It is the paragraph at point 3 on page 601. Your Honours have received an issues papers in relation to the United Kingdom. I am told the matter is still under debate in the United Kingdom since Hirst.
KIRBY J: If that changes, whilst the matter stands for judgment, it might be helpful if the Court were informed of that.
MR BENNETT: If your Honour pleases. I remind your Honours of the discussion by Justices Gummow and Hayne in Mulholland 220 CLR 181 about the significance of section 51(xxxvi). At page 237, paragraph 155 your Honours say:
The recurrent phrase in the Constitution “until the Parliament otherwise provides” accommodates the notion that representative government is not a static institution and allows for its development by changes such as those with respect to the involvement of political parties, electoral funding and “voting above the line”. Some of these changes would not have been foreseen at the time of federation or, if foreseen by some, would not have been generally accepted for constitutional entrenchment.
Thus, care is called for in elevating a “direct choice” principle to a broad restraint upon legislative development of the federal system of representative government.
We, with respect, adopt that passage.
KIRBY J: What paragraph was that?
MR BENNETT: Paragraphs 155 and 156 on page 237. I do not want to take time dealing with my learned friend’s many statistical matters which are designed, as I understand it, to prove to your Honours that it is simply an accident that someone happens to be in gaol and has no relation to criminality or anything else.
KIRBY J: I think you trivialise what is being put. What is being put is that if we are looking at proportionality or at non-arbitrariness, that a whole range of circumstances are wrapped up in being factually imprisoned and that, therefore, within that range there are a whole series of categories which make simply choosing that class arbitrary and other judges have taken that view in other jurisdictions.
MR BENNETT: My friend supports that with the example of a serious criminal who is released at the end of a term but able to vote the next day and indeed bound to do so. He seems to suggest that we should have gone further than we have gone ‑ ‑ ‑
KIRBY J: You have not disclaimed going further. You have not disclaimed that Parliament could disqualify a person who has been imprisoned for even not being able to pay a begging fine, for life.
MR BENNETT: Your Honour, not being able to pay a begging fine would not qualify because such a person would not be serving a sentence for an offence. There is a case we have cited, I think it is in South Australia, saying that the words do not apply in that situation. If a person commits an offence punishable by fine, and is punished by fine and does not pay the fine, any resulting imprisonment is not serving a sentence for the original offence. That is fairly clear. There may be a difference if one is sentenced to a fine in default so many days, that may be a different case but in the case of the fine and the imprisonment for non-payment, that is not so.
KIRBY J: What is the case that says that?
MR BENNETT: It is referred to in our submissions, your Honour.
KIRBY J: Anyway, you can tell me that later on.
MR BENNETT: I will just have it turned up, your Honour. Many of the statistics, of course, are raw figures which do not tell one very much. It does not say anything meaningful or helpful to say, for example, that a higher proportion of men are in prison than women. That may be a reflection of the fact that men have traditionally been the breadwinners, it may be a reflection of some different personality characteristics, but either way it is totally irrelevant to the present issue.
KIRBY J: What about the fact that a quarter of the prisoners in Australia are Aboriginal?
MR BENNETT: Your Honour, our answer to that is the same answer that is given at some length, and therefore I will not go through it, by the four dissentients in Sauvé No 2. In distinguishing Hunter v Underwood they go to great lengths to demonstrate why that is not a relevant consideration, even under their criteria where, of course, there are different criteria in relation to the prohibition of certain types of legislation.
KIRBY J: I am not suggesting that this is a criterion for constitutionality but it does not look very good in the international community that the result of the enactment is that such a high proportion of indigenous people are disqualified, grossly disproportionate to the rest of the population.
MR BENNETT: What they say in Sauvé is that that is a matter of concern, it is a matter calling for social actions of various kinds and long‑term solutions of various kinds.
KIRBY J: It has been very long-term.
MR BENNETT: Yes, your Honour, but it is not a matter which affects or should affect the consequences of incarceration. It is discussed, as I say, in that judgment and I simply commend it to your Honours. It is a very detailed and helpful discussion of that issue. The case your Honour has just asked me about is the decision of Justice Dean in R v Governor of Her Majesty’s Gaol, Coburg; Ex parte Coman [1962] VR 375. I erroneously said South Australia. There is a discussion there about the meaning of “term of imprisonment”.
KIRBY J: That presumably was for parole purposes. It may not be the same.
MR BENNETT: No, it was not parole. It was the question of whether a person was dealt with for two offences consecutively. He was dealt with for the first and sentenced to a term of imprisonment, then while he is still in court the court starts dealing with the second one. There was a rule which applied if the person was serving a sentence of imprisonment and the question was: was he serving a sentence of imprisonment when he had not yet been taken away but had been sentenced and was still in court? It was held that it was not.
I am sorry, I am thinking of a different case. Might I take back what I just said. There is another case that says what I just said. This case discussed the question of a fine and in default a term of imprisonment, which was distinguished from the situation where there was a fine. What was said was a period of imprisonment served in default of payment of a fine is not a term of imprisonment within the meaning of the Crimes Act under the crimes and parole legislation. It is a peripheral matter, your Honours, but that is the case. Those are my submissions on the first of the four matters. The other three are each very much shorter.
In relation to qualification and disqualification, may I start by saying there are two things one could mean by that. One could mean some positive/negative distinction or one could mean some distinction depending on taking away from a group for the future some right that group has or it can have a third meaning of taking away from a person who has a right that right. My friend rather used the three possible categories in different parts of his submissions but we submit none of those go to the relevant validity here.
In relation to the first, the grammatical one, the linguistic one, we submit that is a mere matter of form. One could say that all people who are free can vote or one could say that people in gaols cannot vote. As a matter of grammar the first might be a qualification and the second a disqualification but clearly it makes no difference.
Almost any class one thinks of one can define by reference to words that make the distinction positive or words that make it negative. Clearly, nothing can turn on that. We are concerned in the Constitution with substance not with form. In the Constitution we submit that the reference to qualification includes disqualification and therefore there is no need for us to rely on the incidental power, as my learned friend suggests, to make section 30 apply to disqualification.
KIRBY J: Would that be how one would read it, given that the Constitution has specific provisions for disqualification, as against qualification?
MR BENNETT: That is true, your Honour, although those provisions do not use the word “disqualification” except in the sidenote, but that might be a factor that might – a very minor – a formal factor that might point in the other direction, but much more significantly, section 30 clearly picked up the disqualifications existing under State law. That is an illustration of how the word “qualification” can include disqualification. It can be a qualification that one is not serving a prison sentence or is not a bankrupt.
KIRBY J: In this particular section it was clearly intended that there would be a federal law soon after the establishment of the Commonwealth. One would think that the Federal Parliament would take into its own control the question of the qualification for its voters and therefore this was truly intended to be a very temporary provision simply to allow the first election to take place and the matter to proceed.
MR BENNETT: Yes, and that Parliament could then deal with qualifications and disqualifications subject only to the fact that it could not remove the minimum disqualifications laid down by section 44 and subject, in the broad way that I have discussed, to the effects of sections 7 and 24.
KIRBY J: But 44 is, of course, for election to Parliament which is a much more prestigious and intimately involved role in lawmaking than that of simply going to the local school hall once every three years.
MR BENNETT: Of course, your Honour.
KIRBY J: I repeat, one would expect a much more rigorous requirement for election to Parliament than one would for an elector who is of the nature of part of the whole general community and all of its variety.
MR BENNETT: At all times that has been so, your Honour, because the requirements for electors have also applied to parliamentarians, with the addition of the disqualifications in section 44. That has always been the case. But section 30 is not a purposive power, we would submit, and the incidental power simply does not arise. I simply remind your Honours of the passage in Re Pacific Coal (2000) 203 CLR at paragraphs 204 to 205. Your Honours need not go to it.
KIRBY J: This is not Justice Gaudron’s passage, is it?
MR BENNETT: I think it may be, your Honour. No, I am sorry, your Honour, it is Justices Gummow and Hayne. We also remind your Honours of what was said in Sue v Hill (1999) 199 CLR 462 at 473 - again, your Honours need not go to it – where in relation to the phrase, “Until the Parliament otherwise provides” the Chief Justice and Justices Gummow and Hayne discussed the significance of those words in section 51(xxxvi) of the Constitution.
If my learned friend is submitting that one cannot move backwards, one cannot reduce the franchise, his submission is, in effect, that there is some type of ratchet - every time one expands the franchise that expansion becomes fixed and immutable, one can go forward but not ‑ ‑ ‑
KIRBY J: Hang on, I thought you told us that you could not move backwards and disqualify women, now, you could not move backwards and disqualify Aboriginals?
MR BENNETT: That is for different reasons, your Honour. It is not because one cannot go backwards. One can, within the powers of the Parliament where one extends the franchise, one can reduce it. That is Kartinyeri and the basic principles that what Parliament does Parliament can undo and that Parliament cannot make a law which it cannot repeal.
KIRBY J: So Parliament could enact disenfranchisement for all women in Australia?
MR BENNETT: No, your Honour, it could not.
KIRBY J: Why? Kartinyeri says what you can make you can amend and you can repeal.
MR BENNETT: Yes, your Honour, but there are other reasons why such a law could not be made. It would both qualitatively and quantitatively in modern society mean that the Parliament was not chosen by the people.
KIRBY J: So modern society is the criterion?
MR BENNETT: It is one of the criteria, your Honour, and it would be an operative one in that one could you use various words or phrases in relation to it, and this Court has said it in relation to juries in Cheatle and we accept what the Court said in Cheatle about juries would apply here.
GLEESON CJ: I thought the Court said the opposite in relation to juries in Cheatle. I thought the Court said that you could not have majority verdicts in relation to federal offences, although you now have them in relation to all State offences, because the concept of a jury and jury verdict was fixed at the time of the Constitution.
MR BENNETT: Yes, your Honour. I was referring to the dictum in Cheatle which said that one could not today go back to the original laws which said that women could not serve on juries, I was referring to that aspect of Cheatle.
KIRBY J: Why would one not by analogy say that in a modern society, never having had until now a total disqualification of all prisoners, that one cannot go backwards?
MR BENNETT: Because, your Honour, the rule is not that one cannot go backwards, the rule is, in the multifactorial approach I have put, that there are certain ‑ ‑ ‑
KIRBY J: I must make a note of this “multifactorial”.
MR BENNETT: Your Honour, it is the best one can do. The ultimate test is, would this result, if the Constitution is read in 2007, in the legislature not being chosen by the people of Australia? Many cases have said that rules in relation to prisoners do not have that effect. A provision disenfranchising women would have that effect for some of the reasons I have given. A good example is age. It would be within the powers of the Parliament to raise the voting age to 19 or 20 or back to 21 if it were thought desirable to do so by some future Parliament. That is something to which classically, perhaps, it is within the fixing of the franchise to adjust the age. It has, in fact, been reversed by about one thousandth, it was reversed by one day.
Your Honours recall the decision in Prowse v McIntyre (1961) 111 CLR 264 – your Honours need not go to it – which held that at common law one attains an age 24 hours before the commencement of one’s birthday. So if one’s birthday is 13 June, one attains a given age on the midnight between 11 June and 12 June. That was the common law rule. It has a number of effects. It was reversed by a provision inserted in the Interpretation Act which became section 25E in the 1970s which said that one now is deemed, for the purposes of the Commonwealth Acts, to attain an age on the anniversary of the birth, which, of course, is what most people would have thought before Prowse v McIntyre.
The effect of that is that after Prowse v McIntyre and before the amendment, a person in relation to whom an election occurred one day before his or her 18th birthday could vote. The effect of the amendment to the Interpretation Act was to remove that right. So, in fact, of the 1,000‑odd days by which the franchise was increased by reducing the age to 21, we have gone back one day since then. Of course, for constitutional purposes the Prowse v McIntyre would remain.
GLEESON CJ: Yes, we are conscious of that.
MR BENNETT: I will not give your Honours now the example I was about to give. Most States, or I think probably all States, have passed legislation to a similar effect. One wonders how much effect Prowse v McIntyre ever actually had in practice. I would have thought a person attending at a motor vehicle registry one day before his or her 17th birthday and demanding a driver’s test and licence might have some difficulty in persuading the clerk that Prowse v McIntyre entitled the person to that relief, but of course theoretically the person would have been entitled to it.
In relation to soldiers, there have been specific provisions at various times in relation to soldiers who are under 21. During both World Wars members of the armed forces who were under 21 were given the right to vote and the same was done during the Vietnam War. The provision in 1918 was section 39(2) of the Commonwealth Electoral Act. There was the Commonwealth Electoral (War‑Time) Act 1940 amended in 1943. That of course ceased at the end of the various wars.
There is a passage in McGinty which my learned friends seem to suggest says the opposite, but we submit it does not. That is the passage in the judgment of your Honour Justice Gummow where your Honour at the bottom of page 286 says this:
I would accept that the variations in numbers of electors or people in single-member divisions could be so grossly disproportionate as to deny ultimate control by popular election. I would, with respect, also agree with the point made by McTiernan and Jacobs JJ in McKinlay that, when it arises, such a question is to be determined by reference to the particular stage which then has been reached in the evolution of representative government. By way of example, for both Commonwealth and State elections, provision has been made for more than 20 years for 18 as the minimum age for voters. An even plainer example is the now long‑established universal adult suffrage. This has become a characteristic of popular election . . . which could not be abrogated by reversion to the system which operated in one or more colonies at the time of federation.
We accept that, but we would submit that your Honour is not referring to the 18 and 21 in that last sentence. It is referring rather to the universal adult suffrage and specifically so far as it affects women.
GLEESON CJ: You could not by legislation reverse the emancipation of Catholics.
MR BENNETT: No, your Honour, certainly not.
KIRBY J: I thought Kartinyeri suggested you could.
MR BENNETT: Your Honour, it is the same problem as with women. It is a group which both qualitatively and quantitatively, if disenfranchised, would mean that the election was not by the people of Australia.
KIRBY J: So that is another category that Parliament cannot disqualify, but once was disqualified – Roman Catholics.
MR BENNETT: Well, your Honour, religious or racial groups. That was why I made the submission about modern multiracial and multicultural and multi‑religious society where to disenfranchise one group so defined would be in a modern context to mean that it was not election by the people of Australia, but that is not the case with the group in the present case.
KIRBY J: That is the question to be answered.
MR BENNETT: That is the question to be answered. That brings me to the end of the second section of my submissions. The third section deals with punishment. The first point about punishment is to remind your Honours of the rejection by this Court in a number of more recent cases of the very short passage which appears in Chu to the effect that imprisonment necessarily involves the punishment and that involves problems with Chapter III when it is not done by a court. That has been overruled effectively in a number of cases and some of those cases are discussed in Woolley 225 CLR 1. In the course of that case your Honour the Chief Justice at paragraph 17 said something that we submit is very useful about punishment. Your Honour said:
The proposition that, ordinarily, the involuntary detention of a citizen by the State is penal or punitive in character was not based upon the idea that all hardship or distress inflicted upon a citizen by the State constitutes a form of punishment, although colloquially that is how it may sometimes be described. Taxes are sometimes said, in political rhetoric, to be punitive. That is a loose use of the term. Punishment, in the sense of the inflicting of involuntary hardship or detriment by the State, is not an exclusively judicial function. On the other hand, the particular form of detriment constituted by the deprivation of liberty usually (although not always) follows ajudgment of criminal guilt, and the circumstances in which deprivation of liberty may be imposed . . . are limited.
So the word “punishment” has to be used with some care. It is of significance that in Ziems’ Case 97 CLR 279 – your Honours recall the facts of this case. This was a barrister who was injured in a fight at a hotel and then drove while concussed and an accident resulted in the death of someone else and he was convicted of manslaughter and the question was whether he should be disbarred. A number of the Judges, for reasons we are not presently concerned with, took the opportunity to examine the conviction and say, in effect, that the conviction was quite wrong. What is interesting, what the judgment for present purposes is, that the Judges who found that the conviction was unjustified and therefore could not be used itself as a basis for disciplinary action were content for him to be suspended from practice while actually in gaol.
That is discussed by each of them. It is Chief Justice Dixon at 286 point 5, Justice Fullagar at 289 point 8 and Justice Taylor at page 308. Justice Taylor is the clearest. I will just read your Honours the very short passage. Having held that the conviction was wrong, in effect, for a number of reasons, he says:
For the reasons I have given it is, I think, possible to say, firstly, that the mere fact of the appellant’s conviction . . . did not justify the removal of his name from the roll of barristers. Secondly, it may be said that, when the whole of the evidence now available is examined, the fact of the appellant’s conviction, as a factor for consideration, loses a great deal of its weight and, finally, that it is impossible, upon the evidence, to conclude that the appellant’s conduct on the occasion in question was such as to make it appear that he was unfit to remain a member of the Bar.
There remains the question as to what order should be made in the circumstances. Clearly enough the order that his name should be removed from the roll of barristers should be set aside; the only difficulty as I see the case is to determine what order should be substituted. For my own part –
and the others substantially were too –
I am of opinion that where a member of the bar is serving a term of imprisonment for a serious offence he should not, during the term of his imprisonment, be permitted to hold himself out – however ineffectually that may be done – as a person entitled to practise as a barrister.
Now, the point of that is that that was a consequence of the imprisonment in a situation where the High Court had held that the imprisonment should not even have occurred.
GLEESON CJ: I think I asked Mr Merkel yesterday, and he was going to provide this information later, what other examples there are of disabilities suffered by a person in prison other than, of course, those that inevitably result from the lack of mobility that is involved?
MR BENNETT: Yes. Your Honour, there are a few examples. Juries is one. In all States prisoners serving a sentence on conviction of offence are disqualified from serving on a jury. In the ACT a person convicted of an offence punishable by imprisonment for one year or longer is disqualified. In most jurisdictions, some convicted persons remain disqualified for a period after the sentence. For example, in Victoria a person who in the last 10 years has been sentenced to imprisonment for a term or terms in the aggregate of three months or more or in the last five years for terms in the aggregate of less than three months is disqualified.
There are other examples, your Honour, in the Income Tax Assessment Act dealing with the registration of tax agents and in the registration of migration agents and in appointment as a Commissioner of ASIC.
GLEESON CJ: That is reassuring.
MR BENNETT: Formerly, your Honour, there was – in fact I think in the Aboriginal and Torres Strait Islander Commission Act there was a disqualification which was the subject of discussion in Re Yanner. That is not the Yanner in this case, that is a case in the Full Federal Court. So there are a number of other exclusions and we have not trawled the legislation to find them, but we understand that there are probably many statutory quangos where is a provision in the Act setting them up, just like the one in ASIC disqualifying people from being in it.
There was analogous discussion in the United States Supreme Court case called Trop v Dulles 356 US 88. That was a case about a different subject. It was about the imposition of removal of citizenship of a person who was convicted of being a deserter and one of the arguments was that this was an additional punishment which had some constitutional significance and the court said, no, it is not imposed as a punishment. It is imposed for other reasons. That appears at pages 96 to 97 in the majority judgment and the same thing is said by the dissenters at page 124.
In Albarran there are numerous passages, both in the majority judgment and in the judgment of your Honour Justice Kirby, making it clear that what was done by way of professional discipline in that case was not punishment or penal and this is, of course, the old cliché that is always said when one appears in a disciplinary tribunal for the professional organisation, “It’s penal, not punitive”. I am sorry ‑ ‑ ‑
GLEESON CJ: It is protective.
MR BENNETT: I am sorry, an unfortunate slip of the tongue, “It is protective, not punitive”.
KIRBY J: A Freudian slip.
MR BENNETT: A Freudian slip. That is said, of course, although the criminal law is partially protective and many of the factors taken into account in relation to professional discipline are factors similar to those taken into account by sentencing courts.
GLEESON CJ: Mr Solicitor, a lot of the judgments that you have referred us to use the expression “serious offence” and in both the Canadian jurisprudence and the European jurisprudence significance seems to be attached to whether or not an attempt is made to distinguish between people who are in prison for a serious offence and a disqualification of people who are imprisoned, full stop. It seems to be generally accepted that, for example, if a person is serving a sentence of imprisonment for life a law that disqualified that person from voting would be regarded consistently with the reasoning of the Canadian courts or consistently with the reasoning of the European court as a justifiable derogation from the right of every citizen to vote.
MR BENNETT: Yes.
GLEESON CJ: Subject to the possibility that by hypothesis you would only be sent to prison for a serious offence, once you get into the area of accepting that there is some kind of offence that can legitimately result in disqualification from voting, how do you go about measuring the seriousness?
MR BENNETT: Your Honour, “serious offence” is not a term of art.
GLEESON CJ: No.
MR BENNETT: It is a general phrase and it is a phrase that is used in this context on our side of the record in the way your Honour suggested by the last part of your Honour’s question that if it is serious enough to involve imprisonment that involves the requisite degree of seriousness.
GUMMOW J: Take the “three strike and you are out” theory of punishment, which applies in some States or Territories in the country - petty crime by adolescents.
GLEESON CJ: Or any form of mandatory sentencing.
MR BENNETT: Your Honour, that is a criticism of the fact that people are sentenced to that length of imprisonment for that conduct rather than a criticism of the consequence. What the Electoral Act does, in effect, is to say that in a measured way if the criminal justice system has determined that you should be imprisoned for X period that period is the precise period for which you are disqualified from voting. My learned friend takes the next step from that and says, “But there may or may not be an election if you are in gaol for a short period” and you could be in gaol for two years and not be there during an election. You could be there for three days and be there for an election.
But the answer to that is that that sort of consequence is a consequence whenever one is imprisoned for anything. One person may be imprisoned over Christmas, another may not. One person may be in prison during the last three months of the life of a dying relative and be denied the association, another may not. One person may be imprisoned over a birthday, one may not. One person may be imprisoned in a gaol that is not airconditioned during a heatwave, another may not. There are all sorts of ways in which the timing of one’s imprisonment may produce adverse consequences of greater or lesser seriousness.
What is measured is that the period during which one is disenfranchised is the exact period that a court has determined is the appropriate period of incarceration and denial of freedom as a result of what the person has done.
GUMMOW J: No, but a legislature may have determined it.
MR BENNETT: The legislature may have determined it in the case of minimum sentences.
KIRBY J: These are not really analogous. This is all really a red herring. If you take no airconditioning, that is just a feature of the way the administration of prisons operates in a particular case. If you take Albarran, the debate is about whether professional discipline is punishment. It is beside the point. We are talking here – you start with a person who is imprisoned and then to that imprisonment you add a consequence of their civil rights as a citizen voting and, therefore, it is by definition, and is only by definition in the Electoral Act, a person who is imprisoned, and therefore by definition it is something you add by reason of imprisonment and therefore the suggestion is that you are adding to the burden of imprisonment in a way that has not been imposed by the trial court and is having effect, not only on federal crimes but on State crimes.
MR BENNETT: The High Court did not take the view in Ziems. They took the view that the person should not be there at all but the fact that he was there was what led to the consequence. There are many things that one cannot do while in - a federal law denying a prisoner a pilot’s licence while in prison would no doubt be regarded as consequential rather than penal.
KIRBY J: But we are not talking about depriving a person of something special extra like a pilot’s licence or to be registered or licensed or admitted as a barrister. We are talking about something common to all persons as citizens and the definition of the disqualification is “prisonership”.
MR BENNETT: Yes, all prisoners suffer deprivation of freedom and, as I have said, it may affect some more than others. What I am answering at the moment is the suggestion that this is irrational because there may or may not be an election during the time you are in gaol. That is my friend’s submission as to one of the things that makes this irrational and I am answering that.
GUMMOW J: “Irrational” is a strong word; “capricious” might be another one.
MR BENNETT: But no more so than any of the other examples I have given. The point about the airconditioning one was that it was a mere accident that it was summer and not winter when the prisoner was in the particular non‑airconditioned gaol and a hot summer.
KIRBY J: I think you have been reading too much of the local media.
MR BENNETT: The media do not report that Baxter is airconditioned so I suppose the same applies in relation to some prisons. I should correct something I said a moment ago in relation to Trop v Dulles. The court did find that deprivation of citizenship was punishment but distinguished disenfranchisement in the course of the passages I have cited.
KIRBY J: But that is against the background of the United States Constitution which specifically envisages it. Ours was a more enlightened Constitution coming 110 years later.
MR BENNETT: But, your Honour, all I am dealing with is this question of punishment and whether this is something that can only be imposed by a Chapter III court after a trial. Albarran really discusses this very fully. I will not take your Honours to all the passages. The passages in your Honour’s judgment are at paragraphs 83 to 86 and, more importantly, at 96 to 97.
HAYNE J: Have you said all you wish to say about what, if any, significance is to be attached to fixing the disqualification by reference to some quality of the offence for which a person is convicted and sentenced?
MR BENNETT: Yes, except for this sentence, your Honour, perhaps to make it clearer. This is all, we would submit, within the area left to the legislature.
HAYNE J: This is a respect in which the current legislation departs from the historical stream that could be observed up to the point of Federation, is it not?
MR BENNETT: It departs in a number of ways. There is the reference ‑ ‑ ‑
HAYNE J: I understand that. That stream is traced by Anne Twomey in her book The Constitution of New South Wales at pages 324 and 325 back to the Australian Constitutions Act 1842 Reprint No 1 where in sections 5 to 7, I think it is, of that legislation a man was disqualified if attainted or convicted of treason, felony or infamous offence within any part of Her Majesty’s dominions. Those expressions, “treason, felony or any infamous offence”, are reflected in the law of Western Australia, Tasmania, South Australia and Queensland as at Federation. Those were disqualifications geared to not only service of sentence but quality of the offence for which you were serving a sentence. What significance, if any, do we attach to the nature of the offence?
MR BENNETT: None, your Honour. In my respectful submission, the area of what one might loosely call crime disqualification or prisoner disqualification is one within which the Parliament was given the power to fix the qualification. It was a matter for Parliament which of the various possible models it adopted or modified from time to time. As I submitted, many of the early models involved offences anywhere in the empire, many involved being on licence or on parole as an inclusion, many involved periods after one was released. This is a more precisely defined provision where the disqualification is coextensive with the period which the law has regarded as appropriate for the incarceration for the particular person.
HAYNE J: The earlier forms of law could be understood as speaking about the character of the person who was to be disqualified from voting. Treason, felony, infamous offence, which was a limited class, identified in Wrixon’s work may be understood as bespeaking character or lack of it. As I say, here it seems to me ultimately you are driven to the point of saying that at the time of voting the imposition of a State‑imposed impediment on freedom is itself sufficient.
MR BENNETT: Yes, your Honour.
HAYNE J: Regardless of whether it is for driving a motorcar while disqualified with imposition of mandatory sentence or the third time you have stolen a bottle of Coca-Cola from the local convenience store in some jurisdictions in this country.
MR BENNETT: Your Honour, that is a criticism of the sentencing laws of that area. It is not a criticism of the consequence. I remind your Honour, in Ziems, he should not have been there at all but was, nevertheless, disqualified or suspended from practice. It is a consequence of the incarceration.
KIRBY J: It is a consequence you pick up in the federal law.
MR BENNETT: Yes, your Honour.
GLEESON CJ: It may be no coincidence that quite a number of these challenges to electoral disqualification seem to be brought by people who have been convicted of manslaughter because manslaughter is the classic example of an offence that involves a huge range of personal culpability down to little more than negligence. When these cases refer to serious offences, they seem to be talking about more than offences which may attract a custodial sentence.
MR BENNETT: Your Honour, the difficulty with that is that there would be huge practical considerations in having a system which determined in a precise way the degree of criminality. What this legislation does is to get as precise as it can by saying there is only a disqualification for co‑extensive with the period which the law of the land regards as appropriate for your removal from society, for your incarceration, your loss of freedom, whatever phrase one wishes to use. It is made co‑extensive with that. That is a pretty good attempt, we would submit, at getting as close as one can to achieving that result short of the German system where every trial judge has to say whether the offence justifies disenfranchisement or not. We do not have that system and that cannot be the only permissible system.
If one looks at the earlier prohibitions which were based on the maximum that could have been imposed for the offence, that would produce far greater disparity than the present system because that would mean that a person who is the least example of criminality for the relevant offence would be disqualified because the offence itself carried a possible longer term which that person did not get. Now, we do not do that. We are more precise than that. But short of having a Chapter III court adjudicate on the franchise rights of every person convicted of a State or federal offence – it probably would be quite a detailed hearing into degrees of criminality – it is hard to see how a solution other than the present one would be preferable.
GLEESON CJ: People who are serving time on parole are often said to be serving part of their sentence in the community.
MR BENNETT: Yes.
GLEESON CJ: Is the discrimen that is applied in this legislation the fact that the disqualified people have been taken out of the community by court order?
MR BENNETT: Yes, your Honour. That is done by the definition in the Commonwealth Electoral Act of serving a sentence of imprisonment in section 4(1A) which applies only “in detention on a full‑time basis” and it is attributable to the sentence. So we eliminate people on parole, people in weekend detention or home detention, people who are fine defaulters and so on.
GLEESON CJ: This may have some relevance to Mr Merkel’s argument about punishment, but it fastens on the fact that there is a court order that removes you from the community and says that is what disqualifies you from voting.
MR BENNETT: Yes, your Honour, just like the suspension in Ziems.
HAYNE J: It not only removes you from the community but subjects you to a particular regime confining your liberty in particular ways.
MR BENNETT: Yes, it does, and produces, as I have indicated earlier, many disqualifications; you cannot be an ASIC Commissioner and various other things.
HAYNE J: Lots of applications for that job coming out of Darwin at the moment.
MR BENNETT: As I say, I will try and have a list prepared but I am sure we will find that there are numerous Commonwealth quangos which have similar provisions in their legislation. I am reminded that in the Parliamentary Electorates and Elections Act 1893 (NSW) there was a prohibition – and the person who during six months had been imprisoned without the option of a fine for an aggregate of three months. It also covered, specifically, being:
convicted of being a habitual drunkard, an idle and disorderly person or incorrigible rogue or a rogue and a vagabond
5. against whom there is an unsatisfied order of any court for the maintenance of his wife and children
who has been convicted of having committed an aggravated assault against his wife within one year.
KIRBY J: You seem to be warming to a new category of disqualification.
MR BENNETT: No, your Honour, what I am indicating is there are provisions where people have attempted to list provisions and they have listed some which some people might have thought were in one category and some might have thought were in the other as the most serious ones. The Parliamentary Electorates and Elections Act 1902 (NSW), section 4C said, “every person who is in prison under any conviction”. Again, there was a series of details in relation to bribery, intimidation, impersonation or any similar offence to election and so on.
Many of the Acts did have attempts to define particular offences but when one reads them one has to say, but that did not include offence X or, but that did not include offence Y and people might differ on what should or should not be included. Ours is much more precisely targeted, we would respectfully submit.
Finally, in relation to punishment, my learned friend makes a rather surprising submission. He says insofar as State offences are concerned there is no power to impose any sanction in relation to a State offence. Now, of course, I repeat what I have submitted, this is not imposing punishment. It is merely using the fact of conviction of the State offence and imprisonment as a criterion for some other form of action. State offence is merely a prerequisite to a criterion. It is nothing more than that. It certainly is not something outside power for that reason. The power is clearly there in the Constitution.
That brings me to the fourth area, the implied freedom, and I simply remind your Honours of the rejection in McGinty of the approach of saying the Constitution requires a percentage of democracy. This does not measure up to a percentage of democracy, therefore it is invalid.
KIRBY J: Of course, McGinty was decided before the evolution of the doctrine here in the implied freedoms of communication cases, so that we have to look back at McGinty in the light of the evolution of the doctrine of implications from representative democracy that followed later.
MR BENNETT: Your Honour, that was precisely what was argued in McGinty 186 CLR 140. If your Honours go to the argument at page 143 ‑ ‑ ‑
KIRBY J: I was thinking of McKinlay. It was 1975.
MR BENNETT: Yes, that was on a different question.
KIRBY J: All these Scottish challenges here.
MR BENNETT: Yes, but your Honour sees the argument in McGinty at page 143 in the paragraph commencing at point 2 of that page in relation to the “Federal constitutional implication of representative democracy” which was the main basis on which the case was argued and that said:
The issue is not whether the Court should depart from Attorney‑General (Cth); Ex rel McKinlay v The Commonwealth but whether the defendant persuades it to depart from Nationwide News Pty Ltd v Wills, Australia Capital Television Pty Ltd v The Commonwealth, Theophanous v Herald & Weekly Times Ltd and Stephens v Western Australian Newspapers Ltd -
So the argument in that case very largely turned on the issue of representative democracy and what was put was that the implied freedom of political communication involved two steps: one, Constitution prescribes representative democracy; two, in order to enable that to work you need political communication to be free. In McGinty’s Case it was put that one could stop at the first step. One did not even need the second step because the disproportion in the electorates was such that it denied representative democracy. That the Court completely rejected.
If one looks at, without going through it in detail – I will give your Honours the references, I will not take you to them – Chief Justice Brennan at 169 point 7, Justice Dawson at 188 point 7, Justice McHugh at 229 to 230 and 245 and most clearly your Honour Justice Gummow at page 269 point 9 rejected that approach. Your Honour Justice Gummow said this at the bottom of 269:
To adopt as a norm of constitutional law the conclusion that a constitution embodies a principle or a doctrine of representative democracy or representative government . . . is to adopt a category of indeterminate reference. This will allow from time to time a wide range of variable judgment in interpretation and application. That, of itself, may not be open to objection. However, difficulty can arise where the wide range for variable judgment depends upon, or at least includes as a significant element, matters primarily or significantly of political weight and estimation.
Your Honour, the whole Court, as I say, rejected the approach of saying…..representative democracy and if you violate it, that is it. The implied freedom was something which was more deeply based than that.
KIRBY J: Did Justice Toohey and Justice Gaudron dissent in that case, did they?
MR BENNETT: Yes, they did, your Honour. The other case where that is said is a judgment of the whole of the Court in Lange (1997) 189 CLR 520 at pages 566 to 567 where the whole Court at the bottom of page 566 said this:
Since McGinty it has been clear, if it was not clear before, that the Constitution gives effect to the institution of “representative government” only to the extent that the text and structure of the Constitution establish it. In other words, to say that the Constitution gives effect to representative government is a shorthand way of saying that the Constitution provides for that form of representative government which is to be found in the relevant sections. Under the Constitution, the relevant question is not, “What is required by representative and responsible government?” It is, “What do the terms and structure of the Constitution prohibit, authorise or require?”
KIRBY J: But was not the main point of that line culminating in Lange to get away from the notion that there was a freestanding right and to say you had to find the prohibition in the text and structure of the Constitution?
MR BENNETT: Yes.
KIRBY J: I did not take the plaintiff to be saying anything different from that.
MR BENNETT: Yes. That is why what we say is that what my friend calls his third or fourth pathway does not add anything to the first. The task of the Court is very simply to reconcile sections 7 and 24 on the one hand with sections 30 and 51(xxxvi) on the other. That is all. One does not get there by talking about implied freedoms. One gets there by looking at those two sections, looking at the other two sections and saying, how can we read these together? That is the task. These passages that I have indicated show that one does not simply start from a Bill of Rights style approach of saying here is this ideal behind the Constitution; you cannot depart from that.
One matter before I get to the final point. When I was talking about ratchets, if my friend’s submission is intended to mean that one cannot take away from a person a right that person once had, that, with respect, cannot be the meaning of the provision. It would mean that one could not take it away for treason, one could not take it away for ceasing to be an Australian citizen or becoming mentally incapacitated.
KIRBY J: I think he simply tries to build on your acceptance that you cannot take away from women the right to vote because they are women and you cannot take away from Aboriginals the right to vote because they are Aboriginals, that you cannot take away from maybe young people just because they are not 21, and from that he says you cannot take those away. Similarly, because we are a multicultural and confident community and we have moved on, you cannot take away the right to vote absolutely of all prisoners because it was never thus.
MR BENNETT: Your Honour, all I can say is to deem myself to have repeated what I have said in the last three or four hours answering that part of the submission. One cannot get from the concession about women to a concession that any going back is prohibited.
We submit there is simply no basis for saying that there is some distinction between taking away a right a person has to vote and not giving it in the first place. My learned friend’s distinction would mean that it would be permissible to disenfranchise people who turn 18 in gaol because they never had the vote but not to disenfranchise someone who goes to gaol after he or she turns 18. That is not a rational basis for our constitutionality and, in my respectful submission, there is simply no relevant difference whatsoever between taking away a right a person has and not giving it to the person in the first place and those examples illustrate that.
Finally, in relation to repeal and reviver, this is going to be dealt with in written submissions, so I do not propose to spend more than a minute or two referring to it, but may I just make two general points about it and the rest will be done in reply to my learned friend’s submissions. The first general point is that when one has a provision which repeals and then enacts something else, so the legislature says “We repeal section 20 and substitute a new section 20”, if the effect of that change is to intensify the provision by, for example, increasing a fine, increasing a grant by government, increasing a period of disqualification or a period one is imprisoned for, if it is an intensification or increase and the amending Act is for some reason invalid, one would normally say clearly, the intention is that the repeal should not be severable from the enactment because, clearly if Parliament increases a $500 provision to a $1,000 provision, it did not intend, if the increase was invalid, there to be a zero provision.
It might be the opposite if one moved in the reverse direction. If one reduced a $500 provision to $200 and the amendment were invalid, one might well have difficulty saying, “Did Parliament really intend the $500 provision to stand if the new one is taken away?” but that is a problem your Honours do not face in this case.
GUMMOW J: It is simpler than that maybe, Mr Solicitor. If you look at the 2006 Act, which is what we are being tormented with, Schedule 1, item 15, it says “Repeal the subsection, substitute”. It looks to me as if your opponent wants to leave the word, he wants half the loaf but not the rest of it. They were only substituting because they were repealing.
MR BENNETT: Yes, precisely, your Honour. It is an “intensification”, that is my word, but it is a convenient word to describe the principle I am suggesting, that where one increases or intensifies something and the amendment is invalid one would not expect the repeal to stand. Putting it a little differently, the repeal would not be severable from the substitution.
KIRBY J: Is there authority which talks of “intensification”?
MR BENNETT: No, your Honour.
KIRBY J: This is a new hypothesis that you are propounding.
MR BENNETT: Yes, your Honour, based on common sense.
HAYNE J: Just to go back to the point Justice Gummow was putting to you, that I understood to be the effect of the passage that appears from lines 3881 through to 3906, of the transcript, pages 86 to 87.
MR BENNETT: I do not have that, I am sorry, your Honour.
HAYNE J: No, that is something to which we can go back and connect the dots.
KIRBY J: One would have thought there would be a lot of authority on the consequence of repealing provisions that fail in constitutional democracies like Australia or the United States or Canada.
MR BENNETT: There is very little, your Honour. There is a discussion of it in the Australian National Airways Case (1945) 71 CLR 29 at pages 95 to 96 and I think there is a discussion in a case called Silk Brothers, but the discussions are not – they are in situations where it has been more difficult than the situation we have here. In my respectful submission, the intensification principle I have referred to is so clearly based on common sense that it must be right.
KIRBY J: As against that, it is put that Parliament intended a repeal and therefore the Court as a Chapter III Court should not, as it were, then elevate itself into a legislature and decide that it would do something which Parliament specifically has said it wanted to undo.
MR BENNETT: It is not doing that, your Honour. In deciding whether item 15 is invalid, in deciding that it is, it is going to have to decide is it severable. That is the other way of putting it. We would submit that where there is an intensification, the repeal is not severable from the substitution because it would completely alter the meaning of what Parliament is doing. It would have Parliament doing the exact opposite of what it set out to do, which is not what the invalidation of legislation is designed to achieve. The invalidation for constitutional reasons of legislation is designed to obliterate what is invalidated and then to leave untouched so far as possible what remains. Where what is enacted and held to be invalid includes a consequential repeal and you have the application of the intensification principle, then, in my respectful submission, it is clear that any rule of severance would say one cannot sever it.
GLEESON CJ: Mr Solicitor, we only get to this argument, do we not, if we hold that the current regime is invalid?
MR BENNETT: Yes, your Honour.
GLEESON CJ: Do I understand that the agreement between you and Mr Merkel is that you are going to deal in writing with the question whether, assuming the current regime is invalid, the previous regime was nevertheless valid?
MR BENNETT: Yes, your Honour. That is why I am doing this so briefly.
GLEESON CJ: That sounds like the most difficult question of all. It is easy to understand, whether you agree with it or not, your main argument and it is easy to understand, whether you agree with it or not, Mr Merkel’s main argument, but the more difficult argument seems to be that which you come to if the current regime is invalid and you are then seeking to uphold the validity of the previous regime. Another way of asking the same question is; if it is right that Parliament cannot impose this disqualification upon all prisoners of the kind we are dealing with, how do you then decide whether it can impose a disqualification on prisoners serving three years or five years or life?
MR BENNETT: That is what we will put in our written submissions and in my friend’s written submissions, no doubt.
GLEESON CJ: According to the passage in the joint judgment of Justice McTiernan and Justice Jacobs, they say it is a question of degree but how do you answer the question of degree, by reference to what?
MR BENNETT: The sort of criteria I have referred to, your Honour. I am ultimately asking the question, is this a disqualification which prevents the choice being a choice by the people? That is the ultimate question. One has to ask that in relation to the Act we are dealing with and then if that is invalid, if that goes too far, one then says, what would the court have said if it had been in fact the five years and then the three years? There is very little extra reasoning or discussion. It is a question of degree. Would the more moderate provision have been valid? We have both addressed that in the written submissions, but it will not involve very many words that have not been said to your Honours already.
The only other thing I wanted to say about this topic, and this really, again, is very short, is that my learned friend says you cannot apply that sort of intensification principle here – he does not use that word – because there was also a change in structure in relation to whether the disqualification was from enrolment or voting. We say that is simply letting the tail wag the dog. That is letting that minor procedural adjustment determine rather than the substantive change. There was a substantive change enacted and that was what I have called the intensification. If that fails one goes back with whatever minor procedural adjustments need to be made and the effect of it would be, we would say, that the old procedural question of whether it was enrolment or voting would come back in relation to prisoners if the repeal fails on the basis of non‑severability.
All that will be in our written submissions. I do not propose to say more about it now. Those, your Honours, are our submissions.
GLEESON CJ: Thank you, Mr Solicitor. Mr Solicitor for Western Australia.
MR MEADOWS: May it please the Court, my learned friend, Mr Mitchell, will present the Attorney’s submissions.
GLEESON CJ: Yes, Mr Mitchell.
MR MITCHELL: If it please the Court, we adopt our written submissions and seek to address oral submissions as to two matters, firstly, the interrelationship between any implied limitation on legislative power and the express conferral of power made by sections 8, 30 and 51(xxxvi) of the Constitution and, secondly, as to what is involved in the express requirements of sections 7 and 24 of the Constitution that the Senate and House of Representatives be composed of members directly chosen by the people.
GLEESON CJ: What is your regime in Western Australia?
MR MITCHELL: It reflects that of the Commonwealth following the Commonwealth amendment.
GLEESON CJ: Thank you.
KIRBY J: Could you just help me. What is the interest of Western Australia to support the federal legislation, except insofar as it might one day in some sort of indirect way impinge on the Western Australian law? I know that in the second part of your submissions you defend the Western Australian position but why would Western Australia want to come here to disenfranchise citizens of the Commonwealth from voting?
MR MITCHELL: We certainly make the submission that even if the Court were to conclude that the Commonwealth provisions were invalid it would not necessarily follow that the State were invalid.
KIRBY J: Yes, I understand that submission.
MR MITCHELL: We do have a provision in the Western Australian Constitution, section 73, which is an entrenched provision that requires absolute majorities in referenda for a law which provides that Parliament be composed of other than members chosen directly by the people. It is not beyond conception that if the Court were to find the Commonwealth provisions infringed the provisions of the Commonwealth Constitution that somebody might wish to argue that the same Western Australian provisions were invalid by reason of the Western Australian Constitution.
KIRBY J: It is just that I am curious having read McGinty and having sat here during…..and heard the submissions that were so strongly urged by Western Australia about the integrity and the voting entitlements of people in elections and how important it was to democracy to see Western Australia come along putting what seems to be a different submission.
MR MITCHELL: I do not think that our submission is radically different from that which the State put in McGinty in Western Australia.
KIRBY J: It is not different from what the State put but it is certainly different from what Mr McGinty would put.
MR MITCHELL: The views of Mr McGinty and the State may have ‑ ‑ ‑
KIRBY J: They have coalesced with office, have they?
MR MITCHELL: ‑ ‑ ‑ coalesced somewhat, perhaps assisted by the ‑ ‑ ‑
KIRBY J: Amazing what office does to you.
MR MITCHELL: Perhaps assisted by the wisdom of the Court in McGinty and the result which flowed ‑ ‑ ‑
KIRBY J: I see, it is the wisdom of the Court, thank you. You have answered my question.
MR MITCHELL: Your Honours, in relation to implied limitations, and this is perhaps, given that the implied limitation derived from the Commonwealth Constitution is seen to be a limitation also on State legislative power, a matter which is more broadly in the State’s interests, can I say that in relation to the plaintiff’s path 3 which contends that the express provisions of sections 30 and 51(xxxvi) of the Constitution are to be read as subject to an implied freedom of political communication, participation and association for which my learned friend, Mr Merkel, sought to rely on the views of Justice McHugh in the ACTV and later cases.
My submission is that at least, as the views of Justice McHugh had developed by the time of McGinty v Western Australia (1996) 186 CLR 140 they were indeed inconsistent with that proposition. If I can take your Honours to page 234 of the decision in that case where his Honour, having criticised the idea of a freestanding principle of representative democracy which was either an overarching or an underlying of constitutional doctrine, his Honour said at about point 5 on page 234 that even if there was a freestanding principle that:
Because the principle arises by implication, it must be subject to the express terms of the Constitution and be weighed in appropriate cases against other implications drawn from the text and structure of the Constitution.
Of course, the rejection of the existence of a freestanding doctrine was affected by the judgment of the whole of the Court in Lange.
We say it follows that any implied limitation on legislative power must be subject to the express provisions of the Constitution such as sections 8, 30 and 51(xxxvi) and not the other way round. Indeed, in this case it is both unnecessary and inappropriate to turn to any implied limitation when the relevant limitation is to be found in the express words of sections 7 and 24 of the Constitution to which the power contained in section 51(xxxvi) is expressly made subject.
In my submission, the relevant question is that which was posed by their Honours Justices Toohey and Gaudron, neither of whom adopted an unduly narrow view of either a section 7 and 24 of the Constitution or the extent of the implied limitation. In Langer v The Commonwealth (1996) 186 CLR 302 where they say at page 332 in the last paragraph of that page that:
When regard is had to the absence of any reference in ss 7 and 24 to electors, elections or persons being elected, the limited nature of the franchise which existed at the time of federation, the separate constitutional provisions concerned with the franchise and the numbers of senators and members of the House of Representatives, the requirement that senators and members of the House of Representatives be “chosen by the people” must be taken as primarily mandating a democratic electoral system and as bearing on the features of that system only in the sense that it prohibits any feature that prevents it being said that the Senate or the House of Representatives is, or would, in the event of an election, be composed of persons “chosen by the people”.
Your Honours, we say that those words engaged the concept ‑ ‑ ‑
KIRBY J: The problem with that theory, and I understand it and I have seen it in the cases, is that it looks at an aggregate and courts do not tend to get the aggregate. They get it drip by drip by drip. Therefore the nature of a court like this is that it tends to get the opportunities when the drips come rather than looking at the aggregate position because it may be that these steps taken one by one important to different groups, Aboriginals, women, old people, young people and now prisoners, may only in the aggregate in due course be seen to have contained the flaw which an application is made to nip in the bud.
MR MITCHELL: Your Honours, in my submission, the relevant assessment at each point at which the court makes it is of the whole electoral system and the question of whether that system taken as a whole meets the constitutional criteria of providing for Members of Parliament to be ‑ ‑ ‑
KIRBY J: It tends to smack of the view that once was held that it merely means you do not elect them by indirect ballot as in the United States. That is the whole system. But gradually the evolution of the doctrine of the court appears to say, well, you look at each category as it comes up.
MR MITCHELL: Your Honour, we certainly do not contend that the limitation is limited to requiring a direct as opposed to an indirect election. It does require what some members of the Court have referred to as a popular election. We would refer also in Langer to the approach which his Honour Justice McHugh took at pages 342 to 343. Without reading all of what his Honour there says, if I can take your Honours to the conclusion at page 343, where his Honour says at about point 2 of the page:
Whether or not a member has been “chosen by the people” depends on a judgment, based on the common understanding of the time, as to whether the people as a class have elected the member.
That, we say, is the relevant constitutional test which perhaps is not the multifaceted approach but identifies the criterion which the Court will be asked to apply or is to apply.
The question then is whether there is established any common understanding of the relevant time and, if so, in the case of franchise cases, whether the exclusion of the group is incompatible with the common understanding of what is required for there to be a popular election.
KIRBY J: Do you still have the three strikes and you are out in Western Australia?
MR MITCHELL: In relation to burglary offences I understand we do, yes, your Honour.
KIRBY J: So that for a relatively minor but consecutive series the federal law will pick up your legislation and for three relatively minor matters require the person to be imprisoned?
MR MITCHELL: Yes, I understand that to be the case.
KIRBY J: The result of that is that they lose their citizenship right to vote, though what has put them in prison is this special type of law? If you ask about the common understanding of at least informed society that might respond to that by saying, well, the common understanding is that was not even the law at 1901 and surely we have come a long way since then.
MR MITCHELL: Your Honour, I certainly understand what I am posing – or we trying to identify the relevant question at this point rather than giving an answer and if your Honour were to ‑ ‑ ‑
KIRBY J: I am just testing it by your laws in Western Australia.
MR MITCHELL: One would have primary regard to the general pattern of legislation throughout Australia and take account also of international ‑ ‑ ‑
KIRBY J: No, no, it picks it up. It says, State or federal law and picks it up and, if that is so, then in Western Australia that person is in prison and loses the right to vote?
MR MITCHELL: I understand that that is the consequence of identifying the fact that a person is serving a sentence of imprisonment as a criteria for disqualification. My submission is that the question for the Court will be whether one can identify a common contemporary understanding that the exclusion ‑ ‑ ‑
GLEESON CJ: This becomes a very hypothetical notion, does it not? You mean common understanding of what enlightened people, that is, people like us, common understanding of nice people ‑ ‑ ‑
MR MITCHELL: No, your Honour.
GLEESON CJ: Common understanding of people who have ever thought about this problem. How many members of the Australian community would ever have thought about the question of whether disenfranchising prisoners interferes with whether you can describe an election as a popular election?
MR MITCHELL: I doubt that the answer would be very many, your Honour.
KIRBY J: That is why you have the Court.
MR MITCHELL: But perhaps again ‑ ‑ ‑
GLEESON CJ: That means the common understanding of members of the High Court.
MR MITCHELL: I do not submit that. It is an external standard. It will be a question of fact, in any case, as to whether one can identify a common understanding in the sense that Justices McTiernan and Jacobs refer to in McKinlay, and Justice McHugh refers to it in Langer. It would, as Justice McHugh said in McGinty – and I need not take your Honour to this passage, but at page 250 notes in relation to the division of opinion in relation to mal‑apportionment that:
When such a division of opinion occurs about what is essentially a political question, this Court should be slow to substitute its views for that of the Parliaments as to what representative democracy requires.
So to then perhaps answer the question that I have attempted to identify, we would say it has not been established when one has regard to the range of provisions made since Federation both in Australia and overseas as to disqualification of prisoners, that there is any common contemporary understanding of the concept of a popular election which is incompatible with the impugned provisions.
GLEESON CJ: Is there any contemporary common understanding on the question of disenfranchisement of prisoners at all and, if so, how do we know what it is?
MR MITCHELL: It would be for a person challenging the validity of the law to establish such a common understanding. It may well be that in this case there is no common understanding established to the extent that in the Australian context there is a common approach of parliaments, perhaps reflective of a common understanding. All parliaments but South Australia currently have some provision for disenfranchisement of prisoners.
KIRBY J: They point to the federal law for a century and more and say there was no common understanding if you just disqualify everyone because they are a prisoner for more than a century in the light of this country, and if now you then start looking around the world, the trend of the world albeit under different constitutional regimes, but a clear trend, is when the great courts of the world, the final courts equivalent to this in other countries, come to the question, the one thing they will not tolerate is total disqualification of all prisoners because, as your law in Western Australia demonstrates, it is arbitrary. Three cans of Coca-Cola for an Aboriginal youth in Kalgoorlie and they lose their citizenship rights to vote.
MR MITCHELL: I think in relation to the law in Western Australia it would be three burglary offences for an adult person, but putting that aside ‑ ‑ ‑
KIRBY J: Let it be a 19 year old or an 18 and a half year old.
MR MITCHELL: As I said, the approach taken in Western Australia is to focus on the offences of burglary rather than simply theft. But how one defines what a serious offence is, we would say, is a matter for legislative judgment. Your Honour Justice Hayne referred to the concept of a felony or an infamous crime which was used in some of the pre-Federation legislation. That was the form in which section 44(ii)’s equivalent was first drafted at the 1891 Convention. I need not take your Honours to it, but there is a useful historical note in Quick and Garran referring to the relevant Convention debates and there being at pages 490 and 491 at a suggestion by Mr Barton in Sydney in 1897 to substitute more precise terms for felony or other infamous crimes, which then produced the provision in its current form under which a person to whom section 44(ii) applies need never see the inside of a prison.
Section 44(ii) identifies an offence for which the maximum penalty is imprisonment for a year or more. Now, whether that is a better or a worse general definition of a serious offence than the approach taken by the Commonwealth in Western Australia currently to identify offences of sufficient seriousness to warrant actual imprisonment, we would say is a matter of legislative choice.
If one were to take, finally, the general practice in Australia and other countries, one would need also to take account of the general US practice which is in all but two states, according to the 115 Harvard Law Review article at page 1942 which I need not take your Honours to. Only two states grant serving prisoners the vote.
KIRBY J: But that is against the background of a special constitutional provision of a 1776-1790 Constitution.
MR MITCHELL: Yes, I certainly accept that the US constitutional position is different and that reduces the value of cases such as Richardson v Ramirez and Hunter v Underwood in answering the present question. Equally, we would say the Canadian and European decisions show simply that provisions disenfranchising prisoners may be inconsistent with constitutional provisions which confer a personal right to vote on individuals subject to an exception under the broad heading of proportionality.
We would say what is relevant, though, is the actual practice in the United States which is reflective of one version of democracy which accommodates the exclusion of prisoners, not only when they are serving sentences but beyond, from voting in elections. If it please the Court, those are our submissions.
GLEESON CJ: Thank you, Mr Mitchell. Yes, Mr Solicitor for New South Wales.
MR SEXTON: If the Court pleases, three short matters. The first relates to the implied freedom of communication on which the plaintiff relies. In our submission, what the freedom does is to invalidate Commonwealth and perhaps also arguably State legislation that impedes the exercise of choice by electors, that is, legislation that prevents the elector being exposed to information relevant to the exercise of his or her choice. We would say that the legislation in this case, which is about the entitlement to vote, is simply not in that category. There was some division in Mulholland on the question of the information in that case, which was information on the ballot paper itself, but that was still a case about information and not about the exercise of the vote.
KIRBY J: At the very moment that you are voting you get the ballot paper and the question was, was that communicating information?
MR SEXTON: Yes.
KIRBY J: I think the Chief Justice and I thought it was and the rest of the Court thought not.
MR SEXTON: Yes. Some did not quite consider the question in that way, your Honour, but that is why I say there was some division but we say that it is not relevant to this particular case. That is the first matter, your Honours. The second matter is the interrelation between section 30 of the Constitution on the one hand and sections 7 and 24 on the other. The term “qualification” is used in section 30 and we would say that that embodies a number of notions. One is the entitlement to be on the electoral roll, another is the entitlement to vote in an election, and also it embodies, we would say, the factors that prevent the exercise of either of those entitlements.
Under section 30 the Commonwealth Parliament, with section 51(xxxvi), can legislate on those subjects but not so as to be inconsistent with sections 7 and 24. In our submission, sections 7 and 24 do not impose a test of rationality, they impose a requirement only of being chosen by the people. I appreciate, as Justice Hayne has remarked, this is a notion of some generality but there is an important distinction, we would say, between a test of rationality and the test that is imposed by sections 7 and 24. We would say that in their historical context, because they have been in existence since Federation and in the colonies prior to Federation, that restrictions on the voting rights of prisoners are not in contravention of sections 7 and 24.
There may be a question as to what other restrictions there might be in that same category except for the historic, again, treason category and the notion of restrictions on those of unsound mind which is perhaps itself a separate category. In other words, it is not easy to think of other restrictions that might now be placed on the entitlement to enrolment or to voting that would fit within the notions of sections 7 and 24. We do not say that the categories are necessarily closed but, in our submission, it is not easy to think of examples. There may, of course, be some overlap between the ideas of rationality and the requirement chosen by the people in sections 7 and 24 in the sense that, for example, under neither notion would it be legitimate to exclude persons with red hair or green eyes but we think it is important to draw a distinction between those two notions because in many ways that is at the heart of this particular case.
Your Honours, the third matter is that yesterday the Chief Justice raised the question of whether it is still possible to imprison persons for the non-payment of fines. In New South Wales that is governed by the Fines Act 1996 and the answer is that it is still possible that persons might be imprisoned for the non-payment of fines, although, initially a community service order would be made and there would need to be a breach of compliance with that order and even then, when the warrant committed the person to prison, the sentence would be carried out by periodic detention. But it seems to us that in that situation a person would not be serving a sentence of imprisonment for an offence against the law of the State in terms of the Commonwealth legislation so that that person ‑ ‑ ‑
GLEESON CJ: You can always get out by paying the money, can you not?
MR SEXTON: You can. That is right.
GLEESON CJ: As I understand it, most of them do fairly promptly.
MR SEXTON: Yes, but assuming that someone did not take that option, your Honour, we would say that they would not be ‑ ‑ ‑
KIRBY J: Maybe not if you were an indigent Aboriginal.
MR SEXTON: But you still would not be disqualified.
KIRBY J: Well, that is a question.
MR SEXTON: Your Honour, we would say that pretty clearly ‑ ‑ ‑
KIRBY J: I have heard your submission and I am not presently convinced.
MR SEXTON: I can only say, your Honour, that it seems to us that situation. If one looks at the New South Wales legislation we would say that it simply does not fall within the terms of the Commonwealth Electoral Act so that that person would be entitled to be enrolled.
GLEESON CJ: Is that right though? Imprisonment is sometimes expressed as a default penalty, is it not? As it were, you are fined “X” dollars in default certain number of days imprisonment and that is for an offence.
MR SEXTON: I suppose there may be some question, your Honour, as to the way in which the fine was imposed but the majority of the cases one might imagine are, for example, unpaid traffic offences and so on that – there is an argument there about terminology, but the ‑ ‑ ‑
KIRBY J: Do you have at your fingertips the key sections of the Fines Act 1996?
MR SEXTON: Yes, section 87 is really – it says that:
After a community service order is revoked . . . the State Debt Recovery Office may by warrant commit the fine defaulter to a correctional centre –
and it goes on. The question of whether it is ‑ ‑ ‑
KIRBY J: So it is a statutory provision of the New South Wales Parliament contemplating and providing for imprisonment as a final resort for a non‑payment of a fine?
MR SEXTON: Yes, but what the Commonwealth legislation…..is being sentenced for an offence. Now, there may be arguably an original offence under the law of New South Wales but whether someone has been sentenced for that offence and that has resulted in their imprisonment seems to us to ‑ ‑ ‑
HAYNE J: Is there a curial determination of whether you have breached the community service order or is that administrative?
MR SEXTON: No, it is done by the Debt Recovery Office as well. So that is section 86.
HAYNE J: Bad luck if you say you have done it.
MR SEXTON: Well, as I say, that is the Fines Act 1996.
GLEESON CJ: Does that legislation deal with what are sometimes called administrative penalties, that is, fines that are imposed for speeding tickets rather than by curial order? I just had in the back of my mind that it certainly used to be the case many years ago that if a magistrate, for example, imposed a fine, it would commonly take the form of a fine of a certain amount of money and in default thereof a certain amount of time in prison.
MR SEXTON: I am just looking at the contents of the legislation. There is fines imposed by courts, which is Part II, and then penalty notices, which is Part III, which I assume are traffic‑type offences. It may be that there is some distinction between those, depending on the terms of the order that is made, as your Honour noted.
GLEESON CJ: It could be an interesting question for the Electoral Commissioner.
MR SEXTON: Yes, that is right.
KIRBY J: I will have to check this, but my understanding is that Mr Solicitor for the Commonwealth accepted that an order of the kind the Chief Justice has suggested would be picked up by the Electoral Act of the Commonwealth and the question was whether something that applies in default administratively is nonetheless to be traced back to the original offence that led to the fine in the first place. Prudence might suggest that one acts on an assumption that it is, but I do not know what the practice of the Electoral Commissioner or what the law provides ‑ ‑ ‑
MR SEXTON: I only say that, your Honour, that if in fact the majority of these traffic fines result in traffic offences it seems to us that they would not fall within the disqualification category, but it may depend upon precisely how those orders are phrased.
KIRBY J: There is so much enlightened legislation like the Fines Act 1996. I hope you will not mind answering the question I asked the Solicitor for Western Australia, what is the interest of the government and State of New South Wales to support the federal law for the removal of the rights of citizens in this country to vote?
MR SEXTON: Your Honour, we do not support, necessarily, this precise piece of legislation, we support the Commonwealth power to legislate on this subject.
KIRBY J: Normally, you are coming along here to oppose the Commonwealth power.
MR SEXTON: No, that is not so, your Honour. That is very seldom so. Some of the plaintiff’s arguments, your Honour, directly ‑ ‑ ‑
KIRBY J: It is an important matter for you and for your government to come here to support this.
MR SEXTON: No, your Honour, some of the plaintiff’s arguments do and others may affect the legislation, for example, on this subject that exists in New South Wales. The freedom of communication, for example, is a limitation, arguably, on State power as well as Commonwealth. I am not sure it has been precisely concluded but certainly that is an argument that could readily be made. That is our interest in the ‑ ‑ ‑
KIRBY J: You want to disqualify prisoners, too?
MR SEXTON: We do disqualify them in some circumstances. Not precisely the same as the Commonwealth.
KIRBY J: No, yours is basically the same as the federal law was at Federation, I think, or similar?
MR SEXTON: It is a sentence to a term for 12 months or more and being in prison at the time.
KIRBY J: You have held back from total disqualification?
MR SEXTON: Yes.
KIRBY J: Do you know why? Is that revealed in the Minister’s speech?
MR SEXTON: There was a total disqualification up until I think 1928 in New South Wales, your Honour, but the current legislation has been in these terms, now, I think since then. There is an annexure to our submissions which sets all this out. Unless there is anything else, your Honours, those are our submissions.
GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr Merkel.
MR MERKEL: If the Court pleases. The Commonwealth position has changed somewhat in that my learned friend, the Solicitor, accepted both a qualitative and a quantitative limitation on the power in respect of disqualification and he then identified in his submissions a number of permissible and a number of impermissible disqualifications. He then would not descend to offering the Court some criteria by which that question could be resolved.
GLEESON CJ: How long do you expect to require for your ‑ ‑ ‑
MR MERKEL: No more than about 10 to 15 minutes. No more than 15 minutes, your Honour. Your Honour, I will not be here in the morning but if there is a difficulty we could put in a written submission. My learned junior could do it at 10, your Honour.
GLEESON CJ: Do you think you will finish in 10 minutes?
MR MERKEL: I will finish in 10 minutes, your Honour.
GLEESON CJ: All right, yes.
MR MERKEL: With respect to our learned friend, what we say is each of his examples can be applied against the criteria that we have put forward and give the answers that he gave and he has not put forward a proper basis for rejecting that criteria. The second point we would wish to make relates to the question of participation your Honour Justice Hayne raised with my learned friend and we indicate that as your Honours have heard, there are mobile booths at the prisons and in paragraph 50(a) of the special case book something of the order of 5,500 of the prisoners are qualified to vote. They are there on remand or awaiting sentence.
We say there is simply nothing in the nature of the confinement that would give rise to any problem in respect of any prisoner exercising an informed choice, and indeed all of the evidence would suggest to the contrary. We also would say that the question of confinement, particularly in respect of short term prisoners, of which there is a significant number, of itself could not result in their non‑participation. The very essence of the Lange freedom of communication was not to say it was restricted to federal election periods so the participation would certainly both pre‑date and post‑date citizens.
GLEESON CJ: Mr Merkel, is there not some policy, at least in some States, that people should not be sent to prison at all for terms less than six months?
MR MERKEL: Yes, your Honour. I would have to go to the legislation to see how that works in practice, your Honour, but many people are sent there ‑ ‑ ‑
GLEESON CJ: Perhaps you could deal with that in the written material that you are going to add?
MR MERKEL: Yes, if we may, your Honour. Also, in respect of a test of participation of course that could lead to citizens not resident in the country also being excluded, which would not be the case and would not be consistent with the requirements of sections 7 and 24. Finally on this question, in Belczowski, the argument put in favour of participation or confinement restricting the ability of a prisoner to exercise a choice was firmly rejected by the court.
Could I move next to McKinlay. In McKinlay much has been relied upon, but we say two matters of importance arise in McKinlay. One is, it pre‑dated the ACTV, Lange implications and therefore must be approached with some caution and McKinlay did not consider the issue of disqualification.
Could I next go to Sauvé No 2. Our learned friend dismissed the applicability of Sauvé No 2 on the basis that it did not consider any proportionality test. We say that it did and in Chief Justice McLachlin’s judgment at pages 542 to 543 one sees a proportionate effect discussed and we say that they are a three‑leg test of rational connection, minimum impairment and proportionate effect. The first and the third are directly relevant to the criteria that we have put forward and the second would be relevant to a compelling justification criterion.
The question of common understanding has arisen and been commented upon. The way we have put it is that what Justices McTiernan and Jacobs drew attention to and directed attention towards in that passage that their Honours relied on was the common understanding involved a contemporary approach not a historical or frozen in point of time approach. What we have put is that the common understanding observations that are to be understood in the light of the understanding that has led to an adult suffrage throughout the Commonwealth when it comes to the issue of disqualification we say that is not a question of common understanding, that is a question of the proper operation of the Constitution, the relevant provisions and application of criteria relevant to disqualification which we have put forward in our submissions.
Can I next indicate to your Honours that the indigenous exclusion in Canada was referred to at paragraph 60 of the majority judgment in Sauvé No 2. There is a reference to the indigenous exclusion in Canada as being unacceptable under the heading of proportionality, not under the heading of minimum impairment. We say it does bear direct relevance to the 24 per cent of indigenous persons excluded from voting by reason of being part of the prison population.
My learned friend, under the heading of “punishment” made the point that Ziems could somehow be relied upon. We say Ziems is a good example of the point we made on punishment. Where there is another legitimate purpose which is served by the disability imposed then that takes it outside the realm of punishment. Put simply, imprisonment was found to be incompatible with the professional status in that case and in most other cases the disability that is imposed is based on incompatibility to serve a different object.
We say that it is not punishment alone. If the purpose of punishment is established and there is not a proportionate and legitimate other purpose then it falls afoul of the principles that we have put forward. Trop v Dulles is a good example, the American case in the Supreme Court at page 96 there was found to be a non‑punitive purpose for the law and therefore the question of punishment simply did not arise.
Also, can I remind your Honours, the question arose of serious offence. At paragraph 10 of our reply we cited section 3C of the Crimes Act (Cth) which defines “serious offence” as involving imprisonment of two years or more. The second‑last matter I would seek to mention is the question ‑ ‑ ‑
GUMMOW J: Just before you do that, on this question of serious offences, am I right in thinking that the present Commonwealth legislation has a relationship with State and Territory law which is ambulatory, in other words, takes a situation of who is entitled to vote when there is an election? It then asks, who then is serving a sentence of imprisonment under what is then, which may be 20 years from now, the relevant State or Territory structure as to offences?
MR MERKEL: Yes, your Honour, that appears to be the ‑ ‑ ‑
GUMMOW J: So you do not necessarily answer its validity by looking, I would have thought, at what today is the provision in State or Territory law. It leaves the States and Territories to swing from one sentencing policy to another.
MR MERKEL: Yes, your Honour.
KIRBY J: To disqualify people from the federal vote.
MR MERKEL: Yes, your Honour.
KIRBY J: Could you add to the list of things giving us a reference to the “three strikes and you are out”? My recollection is that it was enacted in the Western Australia and the Northern Territory though it may have been repealed in the Northern Territory, but it may be in other States as well?
MR MERKEL: Yes, your Honour. Thank you for that. We will add that to our list. The last matter relates to the correction I made this morning. I had indicated to your Honours that item 15 and item 14 I had got round the wrong the way and we will clarify that in our written submissions, but item 14 repealed the previous three‑year regime, the section that imposed it. Item 15 put in a replacement provision.
Just on that, and we will have to amplify this upon this in our submissions, my learned friend says enrolment is really a machinery matter. We say it is much more. As will become apparent from the submissions, the repeal point raises a substitute statutory regime conferring benefits on prisoners which my learned friend would take away as a side wind, but it does not work by looking at repeal and substitute because what is, in fact, repealed is the old regime simpliciter. What is imposed is a repeal of the retrospective provision in the previous Act and the imposition of the new section 93(8AA) which moves it to a blanket disenfranchisement. So I apologise for having made that error yesterday.
They are the matters that we would seek to put in reply and I am indebted to your Honours for having sat on. I understood Mr Hanks wants to say something very briefly. Thank you, your Honours.
GLEESON CJ: Thank you, Mr Merkel. Yes, Mr Hanks.
MR HANKS: Your Honour, while we are dealing with mea culpa, we fear that we may have misstated the practical effect a judgment of this Court invalidating the disqualifications so far as it is to be implemented by our client. It is rather complex. We seek leave to file a note, which we will provide to our friends, which will deal with those complexities within seven days, if that be appropriate.
GLEESON CJ: Yes, thank you, Mr Hanks. Subject to the further material that is to come in, we will reserve our decision in this matter and we will adjourn until 10.15 tomorrow.
AT 4.25 PM THE MATTER WAS ADJOURNED
Key Legal Topics
Areas of Law
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Constitutional Law
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Administrative Law
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Standing
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Judicial Review
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Procedural Fairness
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Statutory Construction
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