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Aly, Waleed --- "Mocking Our Democracy" [2006] AltLawJl 14; (2006) 31(2) Alternative Law Journal 61


Electoral law is easy to ignore. It has all the excitement of a sedated accountant. But as a matter of democratic influence, it has teeth. By definition, it concerns democracy’s essence: the mechanism of popular election. A democracy with iniquitous electoral laws doesn’t deserve the name.

That is why a Bill presently in the midst of debate in federal Parliament proposing several amendments to our electoral laws, is so important. It has received little exposure, but most discussion so far surrounds a plan to allow political donations of up to $10,000 (rather than the current $1500) to remain secret. Yet, a largely ignored, but perhaps more philosophically significant amendment proposes to strip prisoners of the right to vote.

It’s a perfectly hideous idea. One that will have a disproportionate impact on the poor and especially the indigenous who make up 20 per cent of the prison population. It will further disenfranchise an already isolated group of people; a fact likely to impede, or even counteract their rehabilitation, and in turn, increase recidivism.

And in case we still care, it violates a raft of international human rights, including most obviously the right to vote under the International Covenant on Civil and Political Rights. According to the UN Office for the High Commissioner for Human Rights, that right may only be restricted legitimately to the extent ‘necessary in a democratic society’ for a public purpose. Nothing about this proposal is necessary. Superior courts in Canada and South Africa have said as much when confronted with similar legislation. So has the European Court of Human Rights.

But then, Senator Eric Abetz, who originally championed the Bill, emphatically doesn’t care. ‘The reliance on international treaties is usually the last resort of those that can’t argue their case domestically’, he retorted last year. So let’s get domestic: the proposal risks violating our own constitutional requirement that the government is elected by ‘the people’. True, once upon a time ‘the people’ did not include women, or Aborigines, but constitutional lawyers have long accepted that the concept would evolve with community standards. Are we prepared to concede those standards hold that prisoners are not people?

But in a nation where the idea of democracy is a rhetorical hook, yet lamentably, human rights are not, perhaps the greatest concern is that this Bill grotesquely subverts our notions of democracy. To see this, we need look no further than the justifications the government has put forth in its defence.

For Senator Abetz, the proposition is simple: ‘If you’re not fit to walk the streets as deemed by the judicial system in this country, then chances are you’re not a fit and proper person to cast a vote in relation to the future of your country’. Democratic pearls should not be cast before civil society’s swine, apparently. Prisoners don’t deserve democracy.

There’s a paradigm shift here. Suddenly, to vote is not a right of the people from which government derives its legitimacy; it is a privilege to be conferred at Canberra’s discretion. That is the very opposite of democracy. When you take the philosophical step of tying voting rights to worthiness, it implies a governmental prerogative to make this judgment. The logical extension of this is to restrict the power to appoint the government to a governmentally authorised elite.

This fact is not avoided by the argument, put forward in recent parliamentary debates by Liberal backbencher Michael Johnson, that ‘people who commit serious offences against society, against the community, should forfeit their right to vote’. Their transgressions may entitle the State to incarcerate them (though not arbitrarily), but they do not render such people devoid of rights.

From here, further arguments become deeply absurd. In the past, some have argued that such an amendment would deter the commission of crime, as though it is more threatening than the prospect of imprisonment. And on this occasion, the Festival of Light argued before a Senate Committee that the Bill was necessary to prevent prisoners acting as a lobby group. The government-dominated Committee adopted that reasoning, too.

There is, of course, no evidence to demonstrate any of these rationalisations. That is probably why, apart from those of the Festival of Light and the Liberal Party itself, every submission to the Senate vehemently opposed the Bill.

In the arena of political argument, democracy is a rhetorical colossus. It permits those who have it a certain smugness at their comparative political enlightenment in the world. It confers moral authority in international affairs. Apparently, it even justifies ill-conceived military invasions. But that only increases the imperative for us to be vigilant about its quality. In that regard, this Bill should sound the alarm. It seems democracy is more a good for export, than for domestic consumption.

WALEED ALY is a Secondee Solicitor with the Human Rights Law Resource Centre Ltd in Victoria.

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