Roach v Electoral Commissioner & Anor [2007] HCATrans 275 (12 June 2007)

Last Updated: 12 June 2007

[2007] HCATrans 275

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 TUESDAY, 12 JUNE 2007, AT 10.16 AM

Copyright in the High Court of Australia

MR R. MERKEL, QC: If the Court pleases, I appear with my learned friends, MS F.K. FORSYTH and MS K.L. WALKER, for the plaintiff. instructed by Allens Arthur Robinson)

MR P.J. HANKS, QC: If the Court pleases, I appear with my learned friend, MR P.R.D. GRAY, for the first defendant. (instructed by Australian Government Solicitor)

MR D.M.J. BENNETT, QC, Solicitor-General of the Court of Australia: If the Court pleases, I appear with my learned friend, MS L.G. DE FERRARI, for the second defendant. (instructed by Australian Government Solicitor Canberra (Barton) Office)

MR R.J. MEADOWS, QC, Solicitor-General for the State of Western Australia: May it please the Court, I appear with my learned friend, MR R.M. MITCHELL, on behalf of the Attorney-General for Western Australia intervening. (instructed by State Solicitor’s Office (WA))

MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales: If the Court pleases, I appear with my learned friends, MS K.M. RICHARDSON and MS J.S. CALDWELL, for the Attorney-General for New South Wales who intervenes in the proceedings. (instructed by Crown Solicitor’s Office (NSW))

GLEESON CJ: Yes, Mr Merkel. Mr Merkel, have you made an agreement with the other parties and interveners about dividing the time?

MR MERKEL: In a general sense, yes, your Honour.

GLEESON CJ: All right.

MR MERKEL: The time does depend on one matter which I would seek to raise at the outset. There are two summonses for amendment to the special case before the Court - if I can just explain the situation in respect of each of the summonses. The first, which is the plaintiff’s summonses, are orders that we would seek, by consent, to amend the special case in order to show cause.

GLEESON CJ: Yes, you have those orders.

MR MERKEL: Yes, thank you, your Honour. The second summons of the Commonwealth is one that my learned friend, the Solicitor, and myself are in agreement on in principle but we would ask if the Court could defer over the giving of the summons so that we could agree on the framework for it after Court today so we will not be troubling your Honours with it during the day, but can I explain briefly what the position is.

The agreement is that both parties accept that the case raises the question of what regime will apply under the Electoral Act at the next election in respect of prisoners. There are four possibilities. The first is that the current regime falls and there is no restriction in respect of prisoners. The second is that if the current regime falls and the repeal falls with it, that would reinstate the three-year regime. But we also raise the point that if the three-year regime were to come into place, its validity on some of our arguments would also go and that would leave the question of the five-year regime.

What is sought is the special case, based upon essentially all the arguments we will be putting in support of our primary case, will raise the question of the validity of those regimes which we are in agreement needs to be determined as part of the plaintiff’s case because those questions inevitably arise if the plaintiff succeeds. If the plaintiff fails, of course the other questions do not arise.

So the proposed agreement between myself and the Solicitor - and the Electoral Commissioner I think is neutral on this but agrees to the process – would have the argument proceed as planned, would have an amendment to the special case agreed upon but, because the three-year and five-year questions were not addressed in the facts by us or in argument by us, we would be seeking an opportunity within a short period of time to put in such further material in the special case which would be statistical material of the kind we have put in already but directed to a three and five-year regime and any extrinsic material and the opportunity to put in written submissions on those matters but only to have any further hearing if the Court required it so that this hearing would, in effect, be able to deal with all those matters.

That is how we were hoping to move forward and resolve the issues raised by the Commonwealth’s amendment and we would ask if we could do that after Court today rather than deal with it before the Court today.

GLEESON CJ: Yes.

MR MERKEL: Thank you, your Honour. The last matter, going back to the question your Honour the Chief Justice raised with me, is that because that amendment raises substantive issues which were new and not anticipated but which we would hope to be able to deal with today, we were going to ask if there was any possible extension of time. What we had hoped is if we could take up such time as the Court is able to give us today for putting all of our submissions, including the submissions on the question of repeal and initial submissions on the three and five-year issues, and that our learned friends would have tomorrow and we would then either have such time as is left tomorrow for reply or have to put in a written reply or, if the Court were able to hear us, my learned junior would put in an oral reply on Thursday, but we are in the Court’s hands as to how - - -

GLEESON CJ: We have a case listed for Thursday.

MR MERKEL: That is how we were hoping to proceed, so if need be, if we do not have time for an oral reply tomorrow, if we could put in a written reply so that that did not take up the time of the Court.

GLEESON CJ: We will see how we go but, as I say, we need to start Thursday’s case at the beginning of Thursday.

MR MERKEL: Yes, thank you, your Honour.

KIRBY J: Would you lift your voice, Mr Merkel? I am not hearing you.

MR MERKEL: Sorry, your Honour. The plaintiff is challenging the constitutional validity of three sections: sections 93(8AA), 208(2)(c) of the Commonwealth Electoral Act and section 221(3) to the extent it gives effect to those provisions. The order to show cause is in the special case book at pages 1 to 4 and the questions are at page 42. Can I just briefly take the Court to the circumstances of the plaintiff that the questions at page 42 raise the validity of what I will call the three provisions, which are the impugned provisions? The second question is whether:

they are beyond the legislative power of the Commonwealth conferred by ss 51(xxxvi) and 30 of the Constitution –

and the third relates to:

the freedom of political communication –

or participation. The fourth relates to the question of costs and the fifth relates to declaratory relief. The plaintiff’s circumstances are set out at pages 18 to 20. The plaintiff is an adult Australian citizen who is in gaol serving a cumulative sentence of four years. The largest sentence for any single offence is three years. She has been, as is set out, a person who has been very politically active in a number of ways whilst in prison and has undertaken and passed a Masters course and is in the process of applying to undertake a PhD whilst in prison. In paragraph 21 her position is set out where she has been appointed as a “peer educator.” At the end of paragraph 21 she:

has a particular focus on educating other prisoners about their opportunities for further education within the prison -

system. Her enrolment as an elector is set out at page 23 of the book in paragraphs 42 to 44. She is presently on the electoral roll for the federal division of Kooyong and is not disentitled of having her name retained on a roll under the Act but is deprived of the right to vote at the election by reason of section 93(8AA), and if not legally prevented from doing so intends to vote at the election.

KIRBY J: With an effective six-year imprisonment - - -

MR MERKEL: I think it is four years, your Honour.

KIRBY J: I am sorry?

MR MERKEL: Sorry, six. Six, yes.

KIRBY J: I am referring to page 20.

MR MERKEL: Yes, sorry. That is correct, your Honour.

KIRBY J: She would have been disqualified under all of the previous disqualifications that applied under the Commonwealth Electoral Act.

MR MERKEL: Not so, your Honour. She would have been disqualified under the three-year provision. The five-year provision only has disqualification if sentenced for five years or more for an offence. She was not sentenced for five years or more for an offence and we would contend -although it is not a matter we need to contend, I would hope, before your Honours – that not having been sentenced for an offence for more than five years she would not be disqualified, because a cumulative sentence for five years is not caught by the Act.

To the extent it was suggested that the singular includes the plural, we would say that the intent, properly understood in respect of that legislative regime, is to look at culpability for an offence, not culpability of a person in respect of other offences. So the cumulative provisions that applied to her sentence would not disqualify her under that regime.

KIRBY J: I can understand why you chose this particular plaintiff or why she chose herself to bring the proceedings, but it might have been helpful to have had prisoners subject to differential sentences so that there was a person with standing before the court in the event that a view were taken that a six-year imprisonment would, on any view, fall outside any argument that you advance.

MR MERKEL: As I said, your Honour, we were not expecting the cascading consequence to follow and it may never follow, your Honour. If we succeed on our primary contention, there is no regime in place for prisoners. That is our primary case and that would entitle her to vote. But if we fail - - -

KIRBY J: It is usual when people come here on great constitutional issues that they have got a few cascades behind them though.

MR MERKEL: Yes. In the events that have transpired, that is right, your Honour, although I should add, the same provision applies in Victoria. She has been entered on the role in Victoria, but there is an issue about whether the five-year disqualification would disqualify her in Victoria, administratively not judicially. It has been accepted it does not because she is enrolled in Victoria with effectively the same provision, but we would say that she is entitled to vote on the five-year legislation. But no challenge has been made as far as we understand it to her standing to bring the proceeding and to seek the relief that she is seeking.

Before turning to the Electoral Act, it may be helpful if I could briefly outline the general expansion of the electoral franchise since Federation. We have dealt with that in our original written submissions at paragraphs 35 to 37. We have dealt with it in two categories; one the general expansion and the second is the particular provisions in relation to prisoners. Of course, the Electoral Act was passed in 1902. The particular expansions since that period were the expansion in 1961 to non-European migrants, the expansion to indigenous Australians in 1962, the minimum voting age being reduced from 21 to 18 in 1973 and the voting rights in respect of prisoners in 1983.

In relation to prisoners, if I can just explain briefly to your Honours what has occurred. In the original Act prisoners under a sentence punishable by imprisonment to one year or longer were not entitled to vote or participate in the electoral process. That disqualification remained until 1983. The extrinsic material which I will take your Honours to later showed that the view was taken that that was no longer applicable and that the offence should be only for serious offences and that led to Parliament in 1983 expanding the franchise to those punishable by imprisonment for five years or longer being disqualified. In 1995 the Act was further amended.

KIRBY J: Is it quite correct to say “expand the franchise”? The question before the Court, as I understand it, is not expanding the franchise. Your client as a citizen is entitled ordinarily to vote. It is a question of disqualification rather than qualification.

MR MERKEL: That is right, your Honour, although our case moves in two steps. The first is to recognise the expansion of the franchise that has occurred since Federation. We rely on that to show that both by law and as a matter of fact that expansion has resulted in something approximating universal adult citizen suffrage as a matter of fact under the Act.

The point we make on that is – and this has been recognised and accepted by a number of members of the Court – that the consequence of that is that the people are in effect defined for the purposes of sections 7 and 24 by that expansion and there are problems, using a neutral term, about winding the clock back to exclude those who have become qualified. It is the exclusion or deprivation of the right to vote that takes one then into disqualification.

So when we talk of the expansion, we say that in respect of categories or classes particularly addressing prisoners, there was always, if you want, a qualification of less than one year, then in 1983 it moved to being in prison for an offence punishable by less than five years. An important step was taken in 1995. The extrinsic material shows there were two reasons for it. One is the problem of identification of whether a person was serving an offence punishable by five years, because that was not readily apparent on the material, so that led to logistical problems, but more importantly for present purposes, the view was taken that the punishable criterion did not reflect the culpability or the gravity of the offence committed by the particular person.

So that someone may be in for six months on an offence punishable for five years. Someone may be in for four years for an offence less punishable by only four years. The former person who had less culpability would be disqualified, the latter would not. So the move put forward based on the inequity of that was to move away from potential sentence to actual sentence, and that was the major move made in 1995 so that the disqualification reflected culpability of the offender rather than the nature of the offence which may have been unrelated to the offender’s culpability.

GUMMOW J: You refer to the 1902 Act, section 4, I think in your paragraph 38.1.

MR MERKEL: Yes, your Honour.

GUMMOW J: At that time the language of section 4 matched that of section 44(ii) of the Constitution. Is there any discussion of that linkage at the time of the enactment of the 1902 Act? That linkage lasted until 1983.

MR MERKEL: That is correct, your Honour. I cannot answer your Honour whether there was a discussion in 1902 of that linkage.

GUMMOW J: At first blush it is odd if you cannot vote but you can be elected.

MR MERKEL: Yes, your Honour, we accept that and we make a significant point of it, but that is in fact the regime that was - - -

GUMMOW J: Has anyone looked at the Hansard relating to the 1902 Act?

MR MERKEL: We have looked at it, I am told, your Honour, but I cannot assist your Honour now but if I can come back to that question.

GUMMOW J: These were very great topics at the time.

MR MERKEL: Yes. I will come back to that if I may, your Honour. The question since, of course, is that the expansion of the franchise removed the problem. The problem then started to go in a different direction in 2004. The committee reports are very divided between those that would want to remove the franchise altogether and those that would wish to have all prisoners disenfranchised. Then in 2004, I think I can safely say for no apparent reason, the franchise was then reduced from five to three years. I say no apparent reason because it seemed to be able to be put no higher than it was part of a law and order debate and it was thought logically connected to an additional form of punishment.

Then in 2006 the impugned provisions were enacted so as to disqualify all prisoners serving a sentence regardless of the term of their sentence. But the 2006 amendments were quite significant because they changed the whole of the legislative regime. Until 2006 prisoners were prohibited from being enrolled and from voting. Under the 2006 amendments prisoners were both entitled and obliged to enrol as electors if they qualified, which they did because being in prison was no longer a disqualification from enrolment, but were prohibited from, or more accurately deprived of, their right to vote as enrolled electors. The current legislative regimes in the States - - -

KIRBY J: I think we looked at some of these reports in the Mulholland Case. They may be different reports but are they available on the Internet or are they available to us?

MR MERKEL: We will be handing them up, your Honours, although I do hand them up under the heading of saying save in one or two instances they are not very helpful because what appears to have occurred is a debate between an enlightenment approach to prisoners which gives them the franchise or a law and order vote, they have offended and therefore they should be punished by being deprived of the franchise. The compromise appears to have emerged in Parliament without much assistance in second reading speeches or explanatory memoranda, that one has this ongoing dialogue in the parliamentary committees with, in effect, a compromise position reached and that is what the three-year regime seemed to come out as, without explanation, with two diametrically opposed sides with three years then emerging in Parliament.

KIRBY J: Of course, the Solicitor for Western Australia uses that against you and says that there were strong arguments put on both sides of the issue in Parliament and it is in Parliament that the matter was resolved and has been from time to time.

MR MERKEL: That is correct, your Honour, but ultimately the question becomes not whether Parliament exercised a discretion it had rightly or wrongly, but what are the constitutional limits, if any, on Parliament’s discretion in that regard. We will be developing it in some detail, but fundamentally we say that there is a huge difference in Parliament’s discretion between its discretion to qualify and if one wants to expand the category of people entitled to vote a different regime and a different area of limitation arises when Parliament disqualifies those who were otherwise entitled to vote from voting.

HAYNE J: Are you able to state at this point of the argument what the principle is that you say is engaged?

MR MERKEL: Yes, your Honour. If I can come to it very shortly because I propose to hand up a series of propositions which are fundamental to how we say the principles are engaged, but I wanted to make this point - I will come to it very shortly, your Honour, as part of my opening but I wanted to go to the Electoral Act first, if I might, just to explain how the provisions in fact operate, go to the Constitution and then outline the propositions that we put in support of our case.

What I wanted to say is that the regime that was enacted in 2006 had two quite dramatic effects in terms of the franchise. It effectively wound the clock back to pre-1902 and earlier for electors. It went back more than 104 years because it was the harshest regime imposed since Federation and harsher than that imposed in the uniform legislation anticipated by section 128. The second was that it, for the first time since Federation, made the disqualification of electors lower than that provided for in section 44(ii) of the Constitution for members and senators.

We say that is anomalous, using as neutral expression as one could, but, thirdly, as I pointed out, the amendments also fundamentally changed the structure of the Act by providing for qualification for enrolment and obligation for enrolment but disqualification from voting. Can I now take your Honours to the Act and how it operates in its present form. I think your Honours have the version prepared by the Attorney-General’s Department. Can I start by taking your Honours to Part VI which deals with electoral rolls. At page 81, section 81 provides for:

a Roll of the electors for each State and for each Territory.

“Elector” is defined at page 3 of the Act in section 4 as a person:

whose names appears on a Roll as an elector.

Can I go then next to Part VII which starts at page 100. Section 93 is the critical section. Part VII deals with qualification and disqualification for enrolment and for voting. The qualification in (1) is “Subject to subsections (7) and (8)”. Essentially everyone over the age of 18 who are Australian citizens or fall in the British subject category before 26 January 1984 are entitled to enrolment. Then in subsection (2):

Subject to subsections (3), (4), (5) and (8AA), an elector whose name is on the Roll for a Division is entitled to vote –

Then we go to subsection (8) which - - -

KIRBY J: Just before you do that, subsection (7) which is a repeated provision about being a “holder of a temporary visa”, that presumably relates to the British subject who is not an Australian citizen in that residual class.

MR MERKEL: That must be so, your Honour.

KIRBY J: Because there would be no other way that an Australian citizen would be subject to a temporary visa, having a right to return.

MR MERKEL: That is so, your Honour, or be an unlawful non-citizen.

KIRBY J: I am just trying to work out what it provided for, but I assume it must be that residual category.

MR MERKEL: That must be so, your Honour.

KIRBY J: Yes, anyway, you were going to take us to (8).

MR MERKEL: Subsection (8) goes to the “unsound mind” and “convicted of treason or treachery and has not been pardoned”. They are not entitled to have their name on or retained on any electoral roll. Subsection (8AA) is the critical one which we say is the impugned provision for our purposes, or an impugned provision:

A person who is serving a sentence of imprisonment for an offence against the law of the Commonwealth or of a State or Territory is not entitled to vote at any Senate election or House of Representatives election.

A “sentence of imprisonment” is defined in section 4(1A).

KIRBY J: Just before you leave 93, you in your arguments do not contest the constitutional validity of the exception for treason and treachery?

MR MERKEL: No, your Honour.

KIRBY J: What is the theory behind your accepting that exception?

MR MERKEL: Two reasons, one theoretical and one practical, your Honour. The theoretical is that it has generally been accepted in this area of discourse that offences that may be related to the electoral process – the most classical one would be electoral fraud, but treason and treachery is another category relating to the overthrow of the government – has at least a logical connection with deprivation of the right to vote. In other words, if you are seeking to overthrow the established order or the State by unlawful means or by violence, there is a logical connection between that conviction and disqualification of the right to vote. No such logical connection appears in respect of almost all of the offences for which people are serving sentences in prison at the present time but, arguably, there might be. So that is the theoretical reason.

KIRBY J: Was the argument that is put against that which was explored in the Canadian Supreme Court was the social contract that even minor crimes are instances of people’s not, as it were, playing their part in the bargain of citizenship.

MR MERKEL: Your Honour, subject to one qualification, that is correct, but the qualification is important for present purposes. When the counterpart of our law came before the Canadian Supreme Court in Sauvé No 1, the Supreme Court was 9:0 in rejecting the validity of that law. It was only when Sauvé came up No 2 before the Supreme Court that there was a 5:4 division and the four minority was primarily founded upon the seriousness of the offence which did not exist in respect of the current ban that we had and the Sauvé No 1 ban, so that the seriousness of the offence was a fundamental element amongst others in the reasoning of the minority and the social contract reasoning.

On the social contract point, the Supreme Court of Canada, the Grand Chamber of European Court of Human Rights and the South African Supreme Court have rejected laws that would fall short of what I might call the serious offence category and no one other than the Commonwealth, as far as we are aware, has contended that just being in prison necessarily equates to a serious offence. That is certainly not something we have been able to find anywhere in the discourse on this subject in other countries.

GUMMOW J: What about the United States?

MR MERKEL: The United States comes up under a constitutional provision which itself captures any offence for all crimes so that the question of justification or not of that does not arise or no longer can arise in the context with which we are concerned or with which Canada, Europe and South Africa are concerned. So we say that the seriousness of the offence is prescribed by the Constitution rather than a matter of argument.

We have taken the Court through in our material to the range of offences that are caught and we say it is simply not possible to rationally equate the fact of being in prison with the commission of a serious offence of the kind in this area of discourse that has been accepted as at least properly raising the question of disqualification.

KIRBY J: You said you had a practical as well as a theoretical - - -

MR MERKEL: I am sorry, two practical reasons. One, your Honour, is the plaintiff did not really need to take on more than was necessary in respect of succeeding in her case, but the second, and probably more important, we believe no one in Australia has ever been convicted of treason or treachery. So as a practical matter it is more in the area of theory than actual reality.

KIRBY J: I thought recently there was a case in the Australian Capital Territory where somebody was convicted of a statutory offence of treason, but anyway, it is not very common in this country.

MR MERKEL: That may be right - if that was, I understand it might be the first time if it falls into that definition, but that is our response to that subsection. I was going to say under section 93(8AA) the amending legislation defines “sentence of imprisonment”. That is at page 7. This was also a significant amendment because prior to this amendment there was a question about whether home detention or parole would be caught by the disqualification. So this amendment made it clear that you had to be in detention on a full-time basis. So that is in the extrinsic materials. So there was no question if someone on parole or on home detention would not be caught by the disqualification and that comes out as a result of that definition.

Can I take your Honours next to Part VIII of the Act starting at page 122 dealing with - - -

KIRBY J: So Paris Hilton would now be disqualified, but last week for a short time she would have been entitled to vote?

MR MERKEL: Yes, your Honour, and she would have been entitled if she were in Australia and an Australian citizen to be standing here unburdened by the five-year point at least.

KIRBY J: I just wanted you to know that I follow these things.

MR MERKEL: Enrolment is at Part VIII and the key section is section 101, which provides for compulsory enrolment. This is an important part of the amending Act, or consequence of the Amending Act:

every person who is entitled to be enrolled for any Subdivision, otherwise than by virtue of –

particular sections with which we are not concerned –

whether by way of enrolment or transfer of enrolment, and whose name is not on the Roll, shall forthwith fill in and sign a claim and send or deliver the claim to any Divisional Returning Officer or Australian Electoral Officer.

Section 101(6) provides that:

A person who fails to comply with subsection (1), (4) or (5) is guilty of an offence –

and (6AA) makes it:

an offence of strict liability.

Section 109, which came in with the amending legislation, was the provision by which the roll was able to be certified and enabled certification of prisoners who would appear to be unqualified or disqualified from voting.

That required the Controller-General of Prisons to forward lists of persons convicted and serving sentences, then in subsection (2):

Within 4 days of the date of the writ for an election for a Division in a State, the Controller-General of Prisons must forward to the Australian Electoral Officer a list –

and bring that list up to date as at the date of the writ. Then if I could go to - - -

GUMMOW J: So the Controller-General of Prisons is a State or Territory officer?

MR MERKEL: Yes, your Honour.

GUMMOW J: So section 109 conscripts the State Executive, so it seems.

MR MERKEL: Yes, your Honour. It is a gentler form of conscription, no doubt, your Honour, but it does impose an obligation on the Controller-General by federal statute to do that.

GUMMOW J: If Mr Justice Selway was still with us, he would not say it was a generous form of conscription.

MR MERKEL: The next section, your Honours - - -

GUMMOW J: The point is that it is a defined term and it is not a federal officer.

MR MERKEL: Yes, that is correct, your Honour. Part XIV deals with nominations and section 162 at page 176 says:

No person shall be capable of being elected as a Senator or a Member of the House of Representatives unless duly nominated.

The qualifications for nomination bring in the entitlement to vote at a House of Representatives election or being qualified to become such an elector and they are qualified to sit. Subsection (2) says:

A person is not entitled to be nominated . . . unless the person is qualified under subsection (1).

So that is the provision that took - - -

GUMMOW J: I am sorry to go back, but what is the consequence of non-observance of 109? If it says “the State officer must”, what happens if the State officer is lazy, saying they have better things to do? It is a duty of imperfect obligation, is it, or is there some criminal sanction backing this?

MR MERKEL: No, I do not think there is any criminal sanction unless there is some general offence provision which we will have a look at. I will check on that, your Honour, but I suppose it would be an enforceable duty by - - -

GUMMOW J: Not an officer of the Commonwealth.

MR MERKEL: No, that is correct.

GUMMOW J: That is the point. That is what Mr Selway would be saying.

MR MERKEL: The point in subsection (2) is that the effect of lowering the qualification of the member was to be compared with section 44(ii) that operated for one year. Could I next go to Part XVI of the Act which deals with polling. Could I go to section 208(1) and (2) at page 230:

(1) The Electoral Commissioner must arrange for the preparation of a list of voters for each Division and must certify the list.

(2) The list must include the name of each person who:

(a) is on the Roll . . .

(b) will be at least 18 years old on polling day; and

(c) is not covered by subsection 93(8AA) –

and that is the second of the impugned provisions which we challenge in this litigation.

Can I just ask your Honours to note that section 208 ties in with section 231(1)(a) which is at page 257 which provides that the right of an elector to receive a ballot paper arises:

if the name under which the person claims to vote is on the certified list –

So it is through those two provisions that prisoners are excluded from the certified list. Section 226A provides for mobile booths in prisons to enable those not deprived of the vote to vote. That is at page 249. Section 231(a) I have taken your Honours to. At 229 certain questions are able to be put to determine a person’s qualification.

KIRBY J: I just do not quite understand 226A. Is that a residual provision from the time when prisoners did vote? Is that now, as it were, inapplicable?

MR MERKEL: No, your Honour, it would cover persons in prison on remand, persons awaiting sentence, so that there would be people in the prisons who are entitled to vote who are not deprived of it because they are not serving a sentence of imprisonment, so there would be a number of persons in the prisons – I think on our - - -

KIRBY J: Or persons awaiting extradition and things of that kind?

MR MERKEL: That could be another example, your Honour. Remand would be the most obvious example, or persons who have been convicted and have not yet been sentenced.

KIRBY J: Going back to Justice Gummow’s question about 109, this is a much softer provision in 226A. It says “may make arrangements with” the Controllers-General. It is a friendly instance of co-operative federalism.

MR MERKEL: Yes, your Honour. I had jumped over the third of the impugned provisions which is section 221 which is at page 243. Subsection (1) requires a person to be only admitted to vote, as does (2), if they are enrolled, and (3):

For the purposes of this section, the electoral Rolls in force at the time of the election shall be conclusive evidence of the right of each person enrolled thereon (other than a person whose name has been placed on a Roll in pursuance of a claim made under section 100 and who will not have attained 18 –

that is to cover people who are turning 18 by the election -

or a person who is covered by subsection 93(8AA) (sentences of imprisonment)) –

That is the third of the impugned provisions insofar as it extends to a person under section 93(8AA). Then I was going to take your Honours to section 235 which provides for provisional votes and just briefly explain that – we have made a note of this in our submissions - the disqualification from voting because of the provision for provisional votes would probably enable someone who is released from prison between the date of the writ and the date of the election to vote. So, even though the Act is not altogether clear, it looks like disqualification if you are in prison on the date of the election, even though the certified list will be as at the date of the writ, but that is not altogether clear. Section 245 provides for:

It shall be the duty of every elector to vote –

Section 245(2) provides:

The Electoral Commissioner must . . . list of the names and address of the electors who appear to have failed to vote –

And (4) is:

The DRO is not required to send or delivery a penalty notice if he or she is satisfied that the elector –

and the one relevant to prisoners would be (c) and (d):

was ineligible to vote . . . or

(d) had a valid and sufficient reason for failing to vote.

That is how a defence against an offence of compulsory – or failing to exercise the vote would arise in respect of prisoners.

Just by way of assistance to your Honours, we had adverted in our initial submissions at paragraph 40 to section 30FD of the Crimes Act. That is actually set out, or part of it is set out, at page 479. I think it is a provision passed in the 1930s about persons who were members of unlawful organisations not being able to vote for seven years. One of the definitions of an unlawful organisation is overthrow government by unlawful means. There were others that may in this day and age be more contentious, but that is something that on one view, on its narrowest operation, would equate to treason and treachery.

Can I now go to the Constitution and take your Honours briefly through the sections that we say are those that are engaged in respect of what we have described and will describe in our submission, sections 7 and 24 primarily, but the others provisions of the Constitution providing for a system of representative and responsible government. The first is section 7 which picks up the important words of “directly chosen by the people”. Section 8 has:

The qualification of electors . . . as the qualification of electors for members –

Section 24 is the “chosen by the people” provision in respect of the House of Representatives. Section 25 has been referred to on a number of occasions by way of clarification of section 24 so that the right of choice is the exercise of the vote. Section 28 secures to the people their share in government every three years, because it requires the House to be re-elected after three years or earlier dissolution. Section 30 is a key provision in the present case:

Until the Parliament otherwise provides, the qualification of electors of members of the House of Representatives shall be in each State that which is prescribed by the laws of the State as the qualification of electors of the more numerous House of Parliament of the State; but in the choosing of members each elector shall vote only once.

That is another reference to the picking up of the qualification in a right to vote. Section 41 has been referred to on a number of occasions because it speaks in terms of “a right to vote”. That provision in Pearson has now been determined to no longer have operation but in interpreting the Constitution it talks of “a right to vote at elections”.

Section 44 is significant because, as with section 25, it deals with disqualification. So there are two sections of the Constitution that expressly deal with the subject of disqualification and that is to be in contradistinction of sections that deal with qualification. For example, section 34, which I should have taken your Honours to, deals with qualification of members and section 44 deals with disqualification. We will come to the significance of the absence of any power to disqualify electors in a moment, but section 44 sets out the circumstances. Of particular relevance for present purposes is subsection (ii) which disqualifies for conviction and being:

under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer - - -

GUMMOW J: The Electoral Act seems to proceed on the footing that they may be nominated. There is nothing in there that says they cannot be nominated, but that if they are chosen, the question arises.

MR MERKEL: That is right, your Honour. It is not an easy question to reconcile how the Electoral Act has approached qualification and disqualification. A good example would be an undischarged bankrupt. One may become an undischarged bankrupt and therefore become disqualified by reason of section 44(iii) even though qualified to stand and qualified to nominate and qualified to be elected at the time, but the minute bankruptcy bites one becomes disqualified.

So we would say Re Wood in this Court approached the question of qualification and disqualification, in effect, as separate issues. I cannot take that too far, but we say the Constitution does and that would be why the Electoral Act would not necessarily be invalid to the extent it may be inconsistent with section 44, but section 44 would be the primary instrument which would determine disqualification or qualification, as the case may be.

KIRBY J: What do you make of the fact that section 45 provides a disqualification which refers back to 44(ii) of being in the Parliament, but that where it comes to voting there is not such an express provision for disqualification except 25 which relates to races?

MR MERKEL: I will be coming to this in a moment, but we say that the power of disqualification of electors can only come up as an implied incidental power, incidental to the power of qualification and it is fundamental to our argument under this heading that it is therefore a purposive power. We do not say there is no power to disqualify.

GUMMOW J: That was the view of Justice Dawson in one case but I did not think it attracted a majority.

MR MERKEL: That was in respect to section 31, your Honour. The subject matter of elections, laws relating to elections, we say both is qualitatively different from qualification of elector and serves a very different function. It is more readily discerned as a subject matter, but when properly analysed, the role of qualification - - -

GUMMOW J: It was in Langer I think. Anyhow, you will be taking us to that, I guess.

MR MERKEL: Yes, your Honour, but we do say that the distinction between elections and qualification and the role each has is quite different and qualification serves a very limited purpose, in fact, only a limited purpose. That is a third aspect which I will come to in a moment when I outline how we are putting our different pathways to the result that we say - - -

KIRBY J: Is the difference to be an actual lawmaker sitting in the Parliament with other members of Parliament you have to have the dignity and status of a person who is virtually without blemish, whereas an elector is a person in all of the variety of the population of the country and therefore that tolerates a degree of differentiation?

MR MERKEL: We would say, your Honour, there should be a very substantial degree of differentiation because each are performing fundamentally different roles. An elector is exercising what we would say is their entitlement to share in government by voting. The elected carries duties as a representative of the electors and the qualifications for such a person and the disqualifications for such a person should take one into totally different areas of responsibility and discourse. We say that they are quite different.

KIRBY J: The Indian case which you have quoted where Chief Justice Verma of the Supreme Court of India talked about the need to keep the electoral process free entirely from corruption and crime seemed to be more apt for being a candidate than being a voter because there would be lots of people out there voting who may not be without blemish.

MR MERKEL: Your Honour, again, I think our learned friends the Commonwealth relied on that case, but again that is like the American situation where the Constitution actually does deal with the subject of criminality.

KIRBY J: Was there any discussion in the constitutional debates as to following the American provision, whether it is express constitutional disqualification or not?

MR MERKEL: I cannot - - -

KIRBY J: Or express provision for disqualification.

MR MERKEL: If I can take that again on notice. I cannot answer that at the moment, your Honour.

KIRBY J: Yes.

MR MERKEL: There is a lot of debate about a number of things but I am not sure whether that came up, but - - -

KIRBY J: Yes, it came back according to the Commonwealth’s submission. Mr Barton was persistent.

GLEESON CJ: What, if anything, deals with the subject of incapacity of a Member of Parliament? Suppose a Member of Parliament, for example, went into a coma, had a serious operation. What is it that deals with that situation?

MR MERKEL: I am not aware of anything, your Honour, but again I will have a closer look at that.

GUMMOW J: There does not seem to be any reference to incapacity as there is in Chapter III. There does not seem to be any referencing.

KIRBY J: Well, there is a reference to “shall be incapable”, but not in that category.

MR MERKEL: Yes. I suppose, your Honour, that may be a good example of where the power under section 34 might carry the implied incidental power for disqualification. That may be the kind of example that makes good our point in respect of electors that we do not contend that the Constitution is so intransigent that an incapable Member could continue sitting. It would therefore be within the power of Parliament to provide the disqualification in respect of such a circumstance - - -

GLEESON CJ: Could Parliament disqualify people from voting on the ground of lack of mental capacity?

MR MERKEL: That is right, your Honour, and when one gets into the area of discourse of disqualification, we would say that the basis for it, the only proper basis for it, would be the implied incidental power in respect of a power to make laws with respect to qualification. But your Honour’s example of a Member would be one that we would, with respect, say could come under section 34 but only as an implied incidental power.

HAYNE J: Well, the question of capacity of Members might be thought to be more readily dealt with by section 38 and vacancy by absence. If a person is incapable for an extended period, absent permission of the House, that person’s place becomes vacant and that would avoid what otherwise might be quite difficult political issues that would arise were there to be a debate about the capacity of Members opposite.

MR MERKEL: I was thinking more in terms of the Chief Justice’s example of the person who found the seats of Parliament a very happy and pleasant place to have a rest and receive pay or the family thought it was a good idea, but either way, if it is not a vacancy there must be some power somewhere. We do not deny that. It is part of our case that there is. My learned friend, the Solicitor, suggests 49 and 50. We say again one does not need to go straining the Constitution. There is a readily available head of power to give effect to the purpose of the Constitution and that is to have representatives perform their role.

The impugned provisions were enacted in reliance on sections 51(xxxvi) and section 30 of the Constitution. The question in the special case is whether they infringed limitations on the power of the Parliament to be implied primarily from sections 7, 24 and 128. I had not taken your Honours to section 51(xxxvi). That empowers the Parliament to make laws in respect of:

matters in respect of which this Constitution makes provision until the Parliament otherwise provides -

Section 128 is important. I should have gone to that – it is relevant because it is another aspect of the right to vote which, we say, arises in respect of members of the people that become electors, but importantly it anticipates the qualification of electors becoming part of uniform legislation throughout the Commonwealth.

We say that, whilst much discussion has occurred from time to time on the disqualifications, that would now be regarded as unacceptable, but in a historical context applied at Federation, we say nothing could be clearer than the situation in the States was a purely transitional provision intended to operate until uniform legislation applied and cannot be helpfully taken to represent contemporary standards or any other such thing being a basis for the Constitution. Section 128 specifically anticipated the Federal Parliament laying down such a law, which it did, in 1902.

The question that we say as to the limitation of the power of Parliament to be implied from sections 7, 24 and 128 and the other provisions of the Constitution to which we have taken your Honours to which prescribe the system of represented responsible government, directly raise the problem identified by Justice Gaudron in Kruger and adverted to by your Honours Justices Gummow and Hayne in Mulholland [2004] HCA 41; (2004) 220 CLR 181 at 237 point five. I do not need to take your Honours to it, but your Honours said:

there may be some feature of the electoral system which means that it cannot be said that those elected by it are “chosen by the people”, but that “[t]he problem is to identify the process by which it may be determined whether or not that is so”.

We say that this case raises that problem directly for the first time in this Court in relation to legislation disqualifying what we say are persons who have become members of the people, that is, adult citizens capable of choosing their representatives and not only entitled but obliged to enrol as electors. Those persons are disqualified from voting at federal elections to choose their representatives as senators under section 7, members under section 24, and at referenda under section 128.

Can I now hand up a document to your Honours which sets out the pathways which we will be putting to your Honours. Hopefully this addresses the question your Honour Justice Hayne raised with me. What we have endeavoured to do is distil in terms of propositions the four different pathways to which we say we arrive at the point that enables us, if we persuade your Honours to adopt any of these pathways, to invalidate the present legislation. In the first paragraph there are three separate criterions I need to briefly explain - - -

HAYNE J: Three separate criteria and about 27 conclusionary epithets, I would have thought, Mr Merkel, but there we are.

MR MERKEL: Well, these are encapsulating our propositions, your Honour. But can I just say that the first is based on the ultimate question in each of the pathways as to whether there is an arbitrary disqualification of members - - -

GUMMOW J: It is not just section 30, is it? It is section 8, is it not, the Senate?

MR MERKEL: Yes, your Honour. I think that is right, your Honour, although section 8, of course, takes one to section 30 - - -

GUMMOW J: So it should read, “The power to provide for the qualifications of electors is found in sections 8, 30 and 51(xxxvi)”.

MR MERKEL: Yes, your Honour. If I could just briefly explain what we have set as the representative government criteria, and we use that throughout our submission, are three possible approaches. One is the requirement of a rational connection between the law limiting the right to vote to the system of representative and responsible government and the law not being inconsistent with that system. The second relies on the cases or the observations and dicta of a number of members of the Court from time to time that where the restriction is a direct burden on the right to communicate or the constitutionally protected right in respect of what we will be contending is the right to vote, there must be compelling justification. The citations for that appear at paragraph 85(b) of our written submissions.

The third picks up what I might describe as the Lange and Coleman v Power criteria determined by the Court to apply in respect of political communications. We say the rational connection criterion would apply to a limitation directly arising under section 30, but we would say all three criteria equally apply and ultimately on the primary argument about whether or not the impugned provisions are valid, we say that the criteria are not satisfied in the present case.

But the critical question, we say, is the pathways to the criteria. The first is that there is no power to disqualify, save by reference to the criteria, and the pillars of that argument in paragraph 1 is that the power to provide for qualification is found in sections 30 and 51(xxxvi). There is no express power to provide for disqualification of electors and we then distinguish between three distinct concepts which I have already briefly adverted to: qualification, lack of qualification and disqualification.

Qualification involves providing for the basic criteria required in order for a person to vote. Citizenship and age are an example. Lack of qualification is those matters that result in a person failing to satisfy the criteria. Disqualification involves a person who is qualified being disqualified, that is deprived of qualification for some additional reason that is different from the criteria for qualification. Bankruptcy is an example, or in this case because an adult citizen qualified to enrol and vote commences serving a sentence of imprisonment. In the case of disqualification the member still retains the basic criteria for qualification but there is some independent reason why he or she is being disqualified.

What we then say is the qualification power in sections 30 and 51(xxxvi) confers express power on the Commonwealth to provide for the qualification of electors, but any power in respect of disqualification is not express. It must be sourced, we would contend, in the incidental power which is the implied incidental power or in section 51(xxxix). Once it is accepted that the power to disqualify a person from voting is incidental to the main grant of power, then it also follows that the power is purposive in nature. It can be exercised only for the purpose of effectuating the main power.

Further, it is subject to sections 7 and 24 of the Constitution as well as the other sections providing for representative and responsible government which provide for members. Sections 7 and 24 provide for members to be directly chosen by the people. The third basis of arriving at a purposive approach is that which I have already briefly adverted to, namely, section 30 itself is purposive and the result of the analysis is that a disqualification for voting must satisfy what we have earlier defined as the representative government criteria. That is one or other of them.

The second pathway is on the basis of a limitation in sections 7 and 24 and the other provisions referred to in Lange as establishing or prescribing a system of representative and responsible government. What we say in 2 is, if it be accepted the impugned provisions are within power, those powers are nonetheless subject to the Constitution and then subject to the sections to which we have referred. These sections, as has been observed by members of this Court on many occasions, place a limit on the power to provide for the qualification of electors which precludes the Parliament from winding back the franchise and precludes the Parliament for disqualifying those who are otherwise qualified unless such disqualification is not inconsistent with sections 7 and 24. Satisfaction of the representative government criteria is necessary to ensure the requisite consistency.

KIRBY J: Can I just ask you, on the phrase “directly chosen by the people”, there was in some of the early jurisprudence a view expressed that that is merely in contradistinction to “chosen by an electoral college” because of the desire to get away from the American system of electoral college which has bedevilled their system ever since and we do not have. Now, where stands that theory of “directly chosen by the people”?

MR MERKEL: Your Honour, when we come to the cases we will say that the view then expressed of Justices McTiernan and Jacobs in McKinlay has been the one that has prevailed over time and, indeed, has laid a foundation, a very significant foundation, for the freedom of political communication ultimately established in the joint judgment in Lange. So that the earlier observations we say can no longer be said to be applicable because the words “directly chosen by the people” have been given a lot more work than was suggested by a number of the judges in McKinlay, and we will be taking your Honours to it. So we say that the approach of their Honours Justice McTiernan and Jacobs has prevailed and evolved over time and that, I hope, would answer your Honour’s question.

Importantly, on our second pathway, the problem identified by Justice Gaudron in Kruger and her Honour particularly had adverted to disqualifications that would no longer be acceptable, disqualifications of women, people without property, disqualifications based on race, racial minorities, other judges of the Court have commented on whether the minimum age could be increased, those sorts of alterations, we say, are not within the ambit of Parliament in the area of disqualification unless they satisfy criteria of the kind dealt with in Lange or as we have outlined in paragraph 1. We say that our approach gives a conceptual underpinning to those observations and is an answer to the problem which her Honour had raised about the method of determining the line of disqualification.

We wish to make a fundamental point that extreme examples may test the proposition, but every criterion still has to have a middle ground and there must be some defining line between permissible and impermissible disqualification. We say that ultimately the Commonwealth’s approach just ignores that problem and does not seek to provide an answer to it.

GLEESON CJ: But do you draw some distinction between saying that somebody is not entitled to vote and saying that only people who satisfy certain conditions are entitled to vote? Do you draw a distinction between what you call disqualification and absence of qualification?

MR MERKEL: In the present context we do, your Honour. There may be some middle ground where that becomes difficult but we are dealing here with a case of actual deprivation of the right to vote. There can be instances where the qualification may be phrased in such a way that it in fact operates as a disqualification so it is not so much a matter of terminology.

GLEESON CJ: Take section 93(8). Section 93(8)(a) provides that:

A person who:

(a) by reason of being of unsound mind –

cannot understand what he or she is doing, “is not entitled” to vote. Is that what you call a disqualification or an absence of a qualification?

MR MERKEL: Your Honour, that is probably one of the instances which could perform both roles. To be qualified you may have to be of sound mind, but if it transpires that you become of unsound mind that would become disqualification but that is an example, your Honour - - -

GLEESON CJ: Do you mean it all depends on whether you become of unsound mind before or after you are 18?

MR MERKEL: Yes, your Honour. One could understand because capacity to choose is inherent in the choice of the electors and therefore it is probably central to the power of choice that one has that capacity so one can readily understand why in that area one can see capacity as a qualification and a supervening incapacity to become a disqualification. We would have no difficulty with that but we would say the disqualification aspect would fall within the implied incidental heading of section 30.

HAYNE J: All this is to inject a vocabulary that departs from constitutional concepts, is it not? If you go to section 30 which uses the word “qualification” you seek to use the word “qualification” in contradistinction to disqualification. You seek to use the word “qualification” in a sense different, perhaps radically different from the constitutional concept used in section 30, do you not?

MR MERKEL: We say the way we put it on our first pathway is disqualification means deprivation of the right that had been conferred.

HAYNE J: In the last half of section 30 what you describe as the transitional provision obliged reference to the law of the State and in particular what was prescribed by the law of the State as the “Qualification of electors”. Now, relevantly, all States, I think, at Federation dealt with the position of some persons who were convicted and serving sentence. Is that right?

MR MERKEL: Yes, your Honour.

HAYNE J: Thus, when section 30 in its last half spoke of prescription “by the law of the State as the qualification of electors” it is plain, is it not, that section 30 was referring to the whole of the State laws, including those aspects of it which, as you would have it, disqualified prisoners from voting. Is that right?

MR MERKEL: Before answering that I think I would have to look at the way in which those laws operated, but it is certainly open to look at that dichotomy as being encapsulated in State laws.

HAYNE J: But what it leads to, Mr Merkel, and at some point I think you have to confront, is that you are injecting into the debate concepts of qualification and disqualification that are different, apparently radically different from the constitutional conception contained in section 30.

MR MERKEL: Your Honour, I will come to it when we deal with the head of argument under section 30 and the distinction, but we do say that it would be wrong to build too much into what are essentially the transitional provisions.

GUMMOW J: Part of the problem is that section 25 is talking about State laws and it uses the expression “disqualified from voting”. Then the side notes to 25 talk about “disqualified”. The side note in 30 talks about “qualification of electors” and then 34, “qualification of members”, then 44 talks about “disqualification” in the side note and so does the side notes to 45 and 46. I am not quite sure where all this ends up.

MR MERKEL: Your Honour, we will of course have to develop this in argument but we do say that there are fundamentally different characteristics of the nature of qualification and disqualification when you have become a member of the people. We say it is not so much a matter to be answered in terms of looking at section 30 but divorced from sections 7, 8 and 24. But when one actually comes to the functions, that 7, 8 and 24 reform which is the right of the people, we say that the question of disqualification of electors raises a far more fundamental issue of the Constitution than just looking at qualification as such. We ultimately do not have to found our argument solely on that first pathway. That is a pathway built on the distinction between qualification and disqualification. The second pathway, which I have just taken your Honours to, really - - -

GUMMOW J: If you just look for a minute at New South Wales’ submissions which are quite to the point in a way, Annexure A to New South Wales sets out the provisions in the 1893 New South Wales Act and it was in the form – 23(IV):

Although qualified –

all these people –

shall be incapable of voting.

So it postulated a status of qualification but a supervening incapacity imposed.

MR MERKEL: That is correct, your Honour.

GUMMOW J: I do not know if that was replicated in the other States or not.

MR MERKEL: Your Honour, our answer is that if section 30 were looked at alone and interpreted by reference to the transitional role, there could be that conclusion that qualification in that transitional sense was to import disqualification at the time, but we say when the function of section 30 is looked at in the context of sections 7 and 24, to give the same power to qualify and disqualify without reference to sections 7 and 24 is to fundamentally give Parliament a power which is inconsistent with what this Court has said would be the prescription of representative government and responsible government.

In particular, it would give, on our learned friend’s approach which would adopt what is being suggested, an untrammelled power for Parliament to manipulate the elective system by the process of qualification and disqualification. We say that the Constitution needs to have sturdier protection of the representative democracy than a power of Parliament to undermine it in that way. We say you have to go to sections 7 and 24 and the role those sections play in looking at what section 30 was intended to do, not at Federation but subsequently.

GLEESON CJ: But you do not question Parliament’s power to disqualify people from voting if they become of unsound mind, do you?

MR MERKEL: No, your Honour. We accept that is probably at the heart of the power of choosing the representative but to disqualify for reasons – I think the most obvious example would be manipulation of the age maximum that your Honour had mentioned in Mulholland, or minimum, for the purpose of entrenching power according to the Commonwealth’s untrammelled view of section 30 that is entirely permissible as long as the chunk that you have taken out of the population is not so great that it is no longer an election by the people. We say that is precisely the kind of limitation which should be and is necessary to be imported to give effect to the constitutional role of sections 7 and 24.

KIRBY J: So the challenge is to have a theory of the constitutional sections that reconciles the acceptance that you give that you cannot qualify if you are under 18, or some other age, that you can be disqualified for treason and treachery, but that you cannot be disqualified because you are a woman or because you are an Aboriginal or of another race and to find something in the sections that supports the lines that you are drawing and then say, “Well, prisoners fall on the side of the line with women and Aboriginals and other citizens who are just part of the generality of citizenship”.

MR MERKEL: Yes, your Honour.

GLEESON CJ: It is slightly more complicated because I think your argument is that you cannot now disqualify people because they are Aboriginals or women?

MR MERKEL: Yes, your Honour.

GLEESON CJ: Although you could once.

MR MERKEL: Yes. Our argument is premised on the acceptance by a number of members of the Court that one cannot wind the clock back in terms of the disqualification power that Parliament has on the same basis as one may have been able to wind the clock forward on the qualification power. They are not reverse sides in terms of power of the same coin. If it were otherwise then plainly one could disqualify any groups, subject only to the Commonwealth’s criterion of some quantitative question that if the group is so large it is no longer a popular election or a choice by the people. We say that that would be fundamentally inconsistent with the whole reasoning that this Court has undertaken in terms of the political communication cases.

KIRBY J: Does the Commonwealth actually put that? I mean, the Aboriginal population of Australia would be, I suppose, depending on how one defines it, people who identify as Aboriginals, about 2 per cent.

MR MERKEL: That is right, your Honour.

KIRBY J: I am not sure that the Commonwealth would say that you can disqualify Aboriginals again. I do not see that in their submission. In fact, you try to use that – you use that against the Commonwealth. You say if you look at the beginning of Federation then it is true at that time notions of corruption of the blood and so on led to disqualification of prisoners, but just as prisoner’s positions as citizens advanced so did that of Aboriginals and so did that of women.

MR MERKEL: Yes. Can I take maybe an example that may raise two aspects of the question. If Torres Strait Islanders – I cannot give your Honour the percentage, but it would probably be a very small percentage of the population – if they happened to occupy areas where the outcome of the next election might be determined on their vote, the disqualification of that racial minority needs to have some justification in constitutional theory based on these sections. We offer such a justification. The Commonwealth does not.

We say that ultimately, even though the Commonwealth may not accept it, this idea of questions of degree by reference to some kind of quantitative concept, without a qualitative analysis, is putting the right conferred by the Constitution on the people to vote at a very low level of protection. We say that is not the outcome of a proper analysis of the role of sections 7 and 24.

My learned friend says they do not put it, but they say it is all on a case-by-case basis but without offering any coherent theory by which the extreme examples, or many of the extreme examples given by members of the court, can be accommodated. We seek to do it and we do it in a way that is fundamentally consistent with the reasoning of the court that led to political communication getting protection. The paradox, of course, in what the Commonwealth is putting against us here is that the political communication which is an incident of the right to vote enjoys higher protection than the right to vote and we say that must be fundamentally fallacious.

We say, with respect, the analysis of those concepts is to be found not in the fine tuning, if one may have it, of what may have applied at Federation in terms such as qualification and disqualification, but in the concepts that the Constitution has evolved by reference to the development of the franchise as it stood, relevantly for present purposes, in 2006. So the real question is, is there power to wind that clock back in respect of groups for whatever reason the Parliament chooses because we say there is not a rational basis for anyone in prison happening to be in prison on election day being disqualified from the right of vote.

GLEESON CJ: That is not the disqualification. It is not that you happen to be in prison, you have to be serving a sentence of imprisonment.

MR MERKEL: Sorry, yes, I stand corrected. That is right, your Honour, but we say in prison serving a - - -

GLEESON CJ: I think you have already pointed out that there are many people in prison who are not disqualified.

MR MERKEL: Yes, that is right. I am sorry, that is correct, your Honour. When I refer to “prisoners” I intend to refer them solely in that context. They are there serving a sentence. I mean, the anomalies of that have been pointed out in the overseas jurisprudence, but one asks, what is the constitutional basis for saying to a person who is qualified as an elector and, in fact, enrolled as an elector – one can find no greater test for saying, “Well, constitutionally you’ve become a member of the people”. What constitutional power is there to deprive members of the people of the right to vote? We offer a theory for that, the Commonwealth do not. We say that sets at large Parliament’s power, case-by-case basis, is it really a popular election, these, with respect, are not a solution to the problem.

GLEESON CJ: Mr Merkel, is it of any relevance, perhaps it is not, that now, as distinct from at the time of Federation, under the statute the corollary of a right to vote is a duty to vote?

MR MERKEL: Yes, your Honour, and a right to enrol is a duty to enrol, that the system of representative government, responsible government has citizens not only entitled or privileged – or starts off privileged, entitled but obliged to participate in their share of government. So to remove the obligation sets the removal or deprivation at an even higher level and it is that deprivation of your right to share in government that transforms the process into one where the people are not exercising their share of government in the manner expected to be performed by sections 7 and 24 with the evolution of the representative government that has evolved over 100 years, but ultimately there is a power in the representatives to determine who of the represented shall be entitled to elect them.

Nothing can be more antithetical to the system of representative democracy prescribed by this Constitution than that outcome, but yet it is a logical consequence of our learned friends’ arguments and we say it is one that ought to be rejected by the Court.

KIRBY J: The best argument, as it seems to me, good or bad in the end, that is put forward is the social contract theory that women do not break their bond with the nation simply by being women, nor Aboriginals nor Torres Strait Islanders, but people who are convicted of an offence of that seriousness that leads to their being imprisoned for that offence have broken for a time their bond with the nation and are entitled, on Parliament’s view of it, to be deprived of the vote during that period. It is either good or bad but that seems to be at the heart of the best argument against your proposition and it does, at least arguably as the Supreme Court of Canada indicated, provide a theory.

MR MERKEL: Your Honour, that is right, although on proper analysis that needs to be broken down for what it is in a number of ways. The social contract or social compact means no more than breaking the law and ending up in prison, but why should it end there. As had been pointed out in the Supreme Court, it gets close to a number of things. One is it is another substitute word for civil death, an unacceptable notion in today’s society in terms of criminal punishment, yet it seems to be acceptable in terms of electoral punishment. One asks why?

Secondly, I use the word “punishment” advisedly because it is - and in Canada it has been put as one of the legitimate ends to be served by this – punishment. It is an additional punishment, additional to the sentence. Of course the Commonwealth does not put that in this case because it cannot, but it is at heart of the social contract theory. It is just punishment.

The debate then becomes is it proportionate. So is it proportionate that the person in Canada who is in gaol for a petty offence, a public order offence, should be deprived of the right to vote, but the person who is out of gaol after serving 30 years for a serial killing is entitled to vote. Where does proportionality come in?

There is a third reason and it is a very important one, your Honour. It is not to be ignored that 24 per cent of the prison population in this country is indigenous. The indigenous disproportion of 13 times more likely to end up in prison means 24 per cent and 13 times more likely to lose the right to vote. I would like to hear my learned friend enunciate the social contract theory that – apart from recolonising Aboriginal people – that justifies treating the Aboriginal prisoners in this way. Social commentators, the government, sociologists, do not seem to take such a facile view of the indigenous gaol population. Civil death, which is what the Commonwealth are contending for, is what 24 per cent of the indigenous people are told for breaking whose social compact.

KIRBY J: Just on that point, there was a footnote, I think it might have been in the Western Australian submissions, referring to the Constitutional Committee in Britain which traces the history of this disqualification to civil death. If we could have access to that or have the provision of that document that would be helpful to know how this – I mean, the disqualification for felony, which is very common in the statutes, sounds as if that is the civil death theory because a felon, in the eye of the law, had lost all civil rights.

MR MERKEL: Handing up or referring towards the conclusion of our argument are a number of articles on this aspect of civil death which really, we say, lies at the heart of this social compact theory. Punishment is permissible in Canada. It is not in Australia. So our learned friends must look for some other concept but translated down and this is our fourth pathway which I have not got to. This is just punishment by another name.

GLEESON CJ: Do any Australian jurisdictions continue to maintain the distinction between felonies and misdemeanours?

MR MERKEL: Your Honour is asking in terms of electoral - - -

GLEESON CJ: No, no, in terms of their criminal statutes.

MR MERKEL: Yes. Sorry, I cannot answer that.

GLEESON CJ: It has gone, I think, long since in New South Wales.

MR MERKEL: Yes.

HAYNE J: If you are going to look at that, would you also look at whether there is any Australian jurisdiction that does not have a provision equivalent to section 17A of the Crimes Act (Cth) which provides, in effect, that imprisonment is the punishment of last resort for crime.

MR MERKEL: Yes, thank you, your Honour. We will look at that, too.

KIRBY J: If I can add to the request, following Dugan v Mirror Newspapers which upheld the civil death theory, my recollection was that all of the States of Australia enacted laws abolishing that theory, and I would be grateful to have that, because there is a certain tension between that abolition and then the introduction later of provisions disqualifying prisoners from voting.

MR MERKEL: Yes, we will attend to that, too, your Honour. If I go to pathway No 3 which, on one view, may be a path of least resistance because it falls most closely within the orthodoxy in this area in this Court, we say as an alternative and additional pathway, if the provisions are within power, they are nonetheless subject to the implied freedom of political communication:. We put this at two levels. One is, we adopt, with respect, Justice McHugh’s analysis in a number of cases we have referred to in our submissions which treats the vote as an act of political communication. I think something very similar was said by your Honour Justice Kirby, but if for technical - - -

KIRBY J: I thought the Chief Justice also took that view in Mulholland.

MR MERKEL: Yes. We say that one does not need to go to the alternative position. It is a direct burden on political communication which must, we say, necessarily embrace the right to vote but if political communication were given any narrower meaning we say the rationale for the freedom, again as enunciated by Justice McHugh in ACTV is that it is part of a freedom of political communication, association and/or participation, at least in relation to federal elections. Whatever the ambit of that may be it certainly must include the right to vote which protects voting together with the communications required to render the vote an informed choice.

So, whether it be an act, a part of political communication or a logical and necessary aspect or extension of it, we get to the same point and then we say that the cases put forward the compelling justification line, if it is a direct burden, alternatively the Lange criteria, if it not be a direct burden, and we say that that is a direct pathway to the criteria, at least the Lange criteria, which we have put forward as one of the criteria to govern this.

KIRBY J: Where is the best statement that supports your proposition that there is not only an implied right of political communication but of association and participation?

MR MERKEL: I think it is Justice McHugh who enunciated that in ACTV and developed it, I think, further in a number of other cases which I have referred to in my submissions. I will give your Honour the references to those. The fourth pathway I have already adverted to and that is an entirely discrete pathway which is not dependent upon constitutional analysis relating to sections 7 and 24, but it is based entirely on the proposition that the deprivation of the right to vote that we are dealing with in the present case is the imposition of a punishment or penalty and that the accepted authority of this Court is that the test of that is to look at the purpose of the law and if its purpose is punitive then consequences follow.

GUMMOW J: You would have to read it down, would you not? What about a punishment for breach of federal law?

MR MERKEL: Your Honour, a number of things - - -

GUMMOW J: I know that does not touch your client.

MR MERKEL: No, it does not touch – and also it is a minor. I think the number of federal offenders in gaol, of the 20,000 potential citizens, or persons potentially affected by this - I think there is less than a thousand in for federal offences, but we would say if it be punishment that raises - in a federal sense that raises the Chapter III question and whether there is some other purpose, other than punishment, that is being served here, but we would say that for Parliament to impose the punishment, other than by way of the judicial process, would offend Chapter III but we say we need not go that far in this case because we are not here concerned with a federal offence.

GLEESON CJ: Does that apply to deprivation of the right to vote in the case of treason?

MR MERKEL: That appears to be a logical extension of that process, your Honour, although there is one exception. We do not say the punishment, per se, is disqualifying merely because it has that effect. What we adopt, is Justice McHugh’s analysis in – I think it was in Woolley – that if there is a punitive effect that takes one to a rebuttable presumption that if there is another legitimate purpose or object served, and the law is proportionate to that purpose, then that would take one out of the punishment invalidity area, so in respect of treason, your Honour, we would say that would be one of the examples where there is a rational connection, an end to protecting the integrity of the electoral process or the repute of the process that such persons not be permitted to participate in it. There is another end which is proportionately and rationally served by this law so it would not stand in the same category as that which we put in respect of prisoners.

GLEESON CJ: Is there a punitive effect of the deprivation of the right to vote in the case of people of unsound mind?

MR MERKEL: We would say the same, your Honour. There is a punitive effect, but there is a legitimate end served by it being the capacity to choose, and that would be a legitimate end served. It is plainly proportionate, and therefore it would fall within our principle of a valid exclusion.

GLEESON CJ: In the days when women could not vote, was there an element of punishment in that?

MR MERKEL: Women?

GLEESON CJ: Did it have a punitive effect?

MR MERKEL: I think, your Honour, I was told by my learned junior that it was not taken away from it. They never had it and it was given to them progressively.

GLEESON CJ: This is the disqualification theory.

MR MERKEL: Yes, I know. Your Honour, if they were disqualified for being a woman, they were deprived of some right, but because it is not associated with the criminal justice system, one does not get into the area of discourse that we are concerned with. As this Court had pointed out in a different context in Rich, when consequences follow from a criminal adjudication of guilt by a court and then certain consequences applied by statute, the effective is punitive. The women situation takes one outside the justice system.

GLEESON CJ: So it is the association of this disqualification with crime that makes it punitive?

MR MERKEL: In the sense that we are talking about, yes, your Honour, because we go back to Commonwealth power and we say the Commonwealth does not have power to impose punishment for breach of State law.

GLEESON CJ: I understand that. That seems to be inconsistent with your proposition that disqualification for being of unsound mind has a punitive effect.

MR MERKEL: It has a punitive effect in the sense that you are deprived of a right, although, your Honour – I think it does have that punitive effect although it sits uncomfortably because it is so much at the heart of the process. It may be go to the reverse side of lack of qualification. That is in the area of you no longer have a qualification, which was a prerequisite of voting. If you lose that qualification, that may not be so easily equated with disqualification.

The way we have defined “disqualification” in our submissions, your Honour, is that you have the qualifications but you are deprived of it for some extraneous reasons so the unsound mind would not be an extraneous factor. It would be one of the reasons that qualified you so it may be more becoming unqualified than disqualified. If it is unqualified the punitive effect is no longer there.

KIRBY J: Is the reason that in Canada, the government of Canada owned up to the punitive purpose that under the Canadian Constitution the Federal Parliament has the power over criminal punishment, criminal law?

MR MERKEL: Yes. Well, your Honour, I do not think the government used the word “owned up.” I think they proudly proclaimed that it was a justifiable additional imposition. They did not shy away from it. It was put forward as one of the justifications. In Belczowski - - -

KIRBY J: It is probably true to say that we are living in a time where there is a more punitive attitude, as one can see in cases like Fardon and Baker, but this is the result of the parliamentary process.

MR MERKEL: Yes, your Honour. In the extrinsic material, the only justification that we have been able to discern for this current law is punishment and educative. I am not quite sure how educative is explained. The Commonwealth does not seek to rely on that. That just leaves punishment, which of course the Commonwealth also does not rely on, but that is the justification put forward on such extrinsic material as is informative on this subject.

So that is the fourth pathway which we accept can have a reasonably appropriate and adapted analysis to take one to the case of displacing the punitive purpose. We say the consequence of any of those pathways is the impugned provisions fail to satisfy the criteria, but we need to make good that argument as a separate process.

The gravamen of our case really is that the winding back of the clock in terms of taking away the franchise of those who but for that deprivation meet all the qualifications for voting must meet the criteria that are consistent with representative government.

HAYNE J: You speak of winding back the clock. Winding back in what sense?

MR MERKEL: In the present case, your Honour, in the category of prisoners taking the disqualification back to pre-1902 disqualification levels.

HAYNE J: The proposition assumes, does it not, identity of penological methods and principles between the two dates that you choose? In particular, it discounts whatever significance may be attached to the relatively recent introduction of provisions, I think universally in Australia, that imprisonment is to be the punishment of last resort.

MR MERKEL: Last resort in terms of factors that go to rehabilitation go to alternative ways of dealing with culpability, but there are so many inputs into that, your Honour, that culpability which is said to found the disqualification cannot seriously be measured in respect of imprisonment. It may mean not so much culpability of this offence, it may mean lack of a support system outside that person’s life, it may be going to rehabilitation, it may be by reference to such a large number of factors that the one thing one is unable to do at the end of the day is to say that imprisonment is a measure of culpability. It may be a measure of the failure of other resorts, none of which have to do with culpability for the offence. Certainly, your Honour, it is not put against us that anything other than culpability can be the basis for deprivation of the right to vote.

KIRBY J: I have just been handed the second reading speech for the original Commonwealth Franchise Act. If it would be possible to have our attention drawn to any particular matters in the parliamentary debates that would be helpful, otherwise we have to plough through a great mass of material in search of something that we are not sure is actually there.

MR MERKEL: Yes, thank you, your Honour. Could I just conclude the pathways analysis, putting aside the punitive aspect, by saying that the argument against us produces a very substantial tension in relation to the oft cited observations of Harrison Moore referred to in ACTV [1992] HCA 45; 177 CLR 106 in Chief Justice Mason’s judgment at pages 139 to 140 and this is central to our hypothesis. In the passage cited on a number of occasions since, his Honour at 139 point 3 said:

Absent such a freedom of communication, representative government would fail to achieve its purpose, namely, government by the people through their elected representatives; government would cease to be responsive to the needs and wishes of the people and, in that sense, would cease to be truly representative.

Then his Honour made a reference to Archibald Cox down at point 8, the last passage, which is:

Only by freedom of speech, of the press, and of association can people build and assert political power, including the power to change the men who govern them.”

The last sentence in the passage just quoted is a striking comment on Professor Harrison Moore’s statement that “[t]he great underlying principle” of the Constitution was that the rights of individuals were sufficiently secured by ensuring each an equal share in political power.

We say that the absence of a coherent theory protecting that share is a fatal flaw in our learned friend’s submissions. We offer a conceptual basis for protection of that share of government.

We also offer a conceptual basis of the problem adverted to by your Honours Justices Gummow and Hayne in Mulholland [2004] HCA 41; 220 CLR 181. The passage is at page 232 point 8 – I am sorry, I think I have the wrong page. I think your Honour Justice Kirby had referred in Mulholland to the share in government at page 252 but the passage I wanted to take your Honours to is at page 232 where your Honours referred at point 5, after the feature that I had taken your Honours to of Justice Gaudron which required a solution to the problem, your Honours said:

An appreciation of the interests involved with the presence in the Constitution on the one hand of the broad specification of direct choice, and of - - -

GUMMOW J: Where are you reading from?

MR MERKEL: Sorry, at page 232 point 5, your Honour.

GUMMOW J: What paragraph number?

MR MERKEL: In Mulholland it is paragraph 155 but that starts on the previous page, but the sentence I am reading, your Honour, is just below halfway down.

GLEESON CJ: Excuse me, you have a wrong page number. Paragraph 155 is on page 237. You are reading from paragraph 157 on the bottom of 237 over to 238 as far as I can see.

MR MERKEL: I am sorry, on my photocopy, which may be wrong, it has 232 but it must be different.

GLEESON CJ: It is 237, paragraph 157.

KIRBY J: The pages must be so well thumbed that you have obliterated the page number.

MR MERKEL: I am sorry, your Honour, I will have to check this. This is the difference between the downloaded CLR and the authorised copy.

GLEESON CJ: This is why we have media-neutral citations. The paragraph number is the best.

MR MERKEL: Thank you, your Honour. I think my downloaded copy missed that. Yes, it is 157. It starts off:

An appreciation of the interests involved with the presence in the Constitution on the one hand of the broad specification of direct choice, and of the empowerment of successive parliaments to “otherwise provide” with respect to elections on the other, is assisted by reference to Professor Tribe’s discussion of the United States experience. He writes:

“Few prospects are so antithetical to the notion of rule by the people as that of a temporary majority entrenching itself by cleverly manipulating the system through which the voters, in theory, can register their dissatisfaction by choosing new leadership.”

We say, our criteria offer a protection against that. The Commonwealth’s do not.

KIRBY J: The Commonwealth tries to rebut that by saying, “Well, you cannot have that theory in this case because we are talking of less than one per cent of the population”, significantly less than one per cent. It is a miniscule number. It has to be a theory that deals with issues of principle rather than number.

MR MERKEL: That is right, your Honour, and of course the Electoral Act ensures prisoners when registered and voting go back to their geographic origins, therefore cannot be in a cluster and therefore maybe affect a particular electorate. But we say that the principle is not to be tested just against prisoners but it is to be tested against age and it is to be tested against all of the factors that can enable the process to be manipulated for reasons unconnected with the advancement of the democracy these sections are said to protect.

In ACTV at page 150 Justice Brennan had commented on the freedom of political communication being an incident of the right to vote. The Commonwealth’s position in denying that would give the Commonwealth greater protection on the right to vote than it would on political communication. We say that is an example of the river rising higher than the source. We want to briefly take your Honours to - - -

KIRBY J: What page was that citation from Justice Brennan?

MR MERKEL: That is page 150 in ACTV of Justice Brennan.

KIRBY J: Thank you.

MR MERKEL: The higher than the source is our observation on his Honour’s comment, not his Honour’s comment. Could I take your Honours now to the passages in the cases that we say provide a strong conceptual basis - - -

GUMMOW J: Just before you do that, Mr Merkel, this bundle of materials including the parliamentary debates and the Franchise Act, you may want to refer to us later, but at page 11456 Sir Josiah Simon in discussing clause 4, which became section 4, which is the disqualification section, including sentence for an offence punishable under law for one year, refers explicitly to section 44 of the Constitution and explicitly to linking the two. That is what they thought they were doing in 1902, so it seems. There may be other references in that material as well.

MR MERKEL: Yes, thank you for that, your Honour. Can we start our reference to the cases, and we say that the authorities which we will be taking your Honours to, support the first three pathways because they are based on the same underlying jurisprudence, but the first case I want to take your Honours to is McKinlay [1975] HCA 53; 135 CLR 1 and I wanted to take your Honour briefly to the often cited observations of Justices McTiernan and Jacobs at page 36, starting at page 35. In the passage beginning halfway down the page “The primary submission,” their Honours started to address:

the meaning of the words “chosen by the people” –

and halfway down that paragraph their Honours said:

The words express a distinct concept or notion capable of application as a constitutional requirement but they are not words which can be re-written or paraphrased in such an exact manner. The words embrace the notion of equality of numbers in so far as the choice of members must be by the people of the Commonwealth. Inequality of distribution of numbers between districts or divisions in respect of which members are chosen is one factor which may lead to a choice on the basis of such an unequal distribution being unable to be described as a choice by the people of the Commonwealth.

The people is the body of subjects of the Crown inhabiting the Commonwealth regarded collectively as a unity or whole, and the sum of those subjects regarded individually. To say that “people” means “electors” or “enfranchised subjects” is erroneous because it takes account only of the enfranchised subjects regarded individually but no account of the body subjects regarded collectively as a unity.

Can I just interpolate there, the Commonwealth’s approach would enable electors to be equated with the people as and when Parliament decided to do so and that is the consequence of the power of “qualification” and “disqualification” being subject to the same limitations which the Commonwealth say it is which is one that we say ultimately is only a quantitative limitation. Then their Honours say:

It is an accurate description only so long as the franchise is wide enough to satisfy the description “popular” but it would be nonsense to speak of a choice by a few who happened to be enfranchised (the foundation of an oligarchy) as a choice by the people (the foundation of a democracy). Since the substitution of the word “electors” for the word “people” is only valid if certain circumstances exist, there is no point in the substitution.

Then their Honours go on and make the point half way down the page about:

Common sense tells us that babes and young children at least cannot participate . . . that all persons need not participate or be eligible to participate in the choosing. However, to argue from this that “people” merely means “electors” is to subtract an essential feature from the constitutional requirement if thereupon it is argued that s. 24 in its opening words says no more than that choosing of members shall be by direct vote of electors. The section says much more than this.

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.

We say the emphasis on the word “must” is important there.

GLEESON CJ: Pausing with that sentence, how do we know whether there is a common understanding and, if so, what it is about whether or not some prisoners may be disqualified from voting or all prisoners may be disqualified from voting before a member can be described as “chosen by the people of the Commonwealth”?

MR MERKEL: Your Honour cannot discern that understanding. Indeed, if one looks at the Parliamentary Committee’s, discussions one will realise how much controversy there is so there must be something more in the underlying concept of understanding. What we say that means, your Honour, is that one looks to different circumstances at different times which their Honour had referred to. The different circumstances and different times we say, now looking at the evolution of the franchise over 104 years to 2006, looks to its expansion both as a matter of fact and a matter of law.

GLEESON CJ: I would have no difficulty with the proposition that there is a common understanding now about whether you could describe Parliament as “chosen by the people of the Commonwealth” if you did not permit women to vote. I would have a little more difficulty, I would have much more difficulty, about whether there is any common understanding now as to whether you could describe Parliament as “chosen by the people of the Commonwealth” according to whether or not you allowed prisoners, or some prisoners, to vote.

MR MERKEL: That is right, your Honour. “Women” maybe suffers from a quantitative issue. If it be solely quantitative, one could say women constitute half the population therefore denying half the population the right to vote denies it the essential characteristic of being the people.

GLEESON CJ: I was really fastening onto the concept of common understanding. That is a proposition of fact. I would have thought as a matter of fact there is a common understanding now that if you sought to disqualify certain classes of people, who in the past have been disqualified, such as people who do not own sufficient property, from voting you would not say that Parliament was chosen by the people of the Commonwealth but, as a matter of fact, how do you know what common understanding there is or if there is any common understanding about prisoners and the franchise.

MR MERKEL: I think, your Honour, one goes to the next sentence and hopefully might get an answer that I would give anyway and I think their Honours possibly gave. Their Honours said:

For instance, the long established universal adult suffrage may now be recognized as a fact and as a result it is doubtful whether, subject to the particular provision in s. 30, anything less than this could now be described as a choice by the people.

Could I just put to one side section 30, not because it is not important, but what their Honours are saying there is that the – and this has been accepted by a number of members of the Court – “long established universal adult suffrage” effectively means that adult citizens capable of choosing are not to be denied or deprived of the right to vote. That is the suffrage that the common understanding has as those entitled to the vote. Section 30, of course, does not set that in concrete. It gives it some flexibility, but we say it would be inconsistent with their Honours’ observation to treat section 30 as encumbered only by some quantitative analysis or some even qualitative analysis that is disconnected in any rational way with the function of the vote.

So we would say that what their Honours are saying is that universal suffrage must be treated as the rule but section 30 can provide exceptions. Section 30, we say, must be not only encumbered otherwise it puts an internal contradiction in what their Honours are saying; you can have universal suffrage but you can take it away, but that is not what their Honours are saying. I accept your Honour’s example of persons lacking in property, women, but the underlying change has come about, we would say, because over time those persons have been accepted as citizens with the capacity to choose and as adults must be accepted to be entitled to participate in that share of government which is assured to them under the Constitution.

We say the same analysis applies to age categories which may be more analogous to prisoners. The common understanding of who is responsible and what age one should be given the right to vote may be something that is more contentious and one may find many views which do not enable a common understanding to be so easily adopted. So that if we go to the 18-year-old franchise and say could that be taken away, we would raise the question then of by reference to what criteria?

If it were established that 18-year-olds were not capable of choosing for some reason, the choice to give them the right to vote was mistaken, then one would have some basis for saying there may be power, but to take that right away in respect of a minimum age just because there is power under section 30 is not what their Honours would have accepted and they would have said it would be contrary to the common understanding at the time must be eligible linked to universal suffrage.

We say there is not a logical distinction between deprivation of those who are 18 of the right to vote and those who are prisoners. Each have been given the franchise over time as a class or a category and suddenly it would be taken away. By reference to what power is it taken away? A relatively unencumbered power is put against us. Well, we say a power that furthers the advancement of the purpose of the people choosing their representatives.

HAYNE J: What, in a single sentence, is the principle you draw from this judgment in McKinlay?

MR MERKEL: That over time, as the franchise has extended, it cannot be taken away except for a particular provision in section 30 which leaves open the question of the operation of section 30, but if I can have the liberty of the second sentence, your Honour, we say - - -

HAYNE J: I do not understand the first but there we are. Go on.

MR MERKEL: Their Honours have equated universal suffrage with those who must be eligible to vote, subject only to section 30. We say to give the expanded role to section 30 would make their Honours’ propositions entirely circular, which we say they did not intend it to be. Their Honours come back to the point at the middle of page 37 at about point 4 where their Honours say:

There is now universal suffrage of all persons not under eighteen years of age who have lived in Australia for six months continuously and who are British subjects (s. 39). 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.

We have raised the question rhetorically, their Honours cannot be taken as saying that section 30 could take away that description without some proper limitation on the section 30 power, otherwise what their Honours would say would be meaningless and the distinction they draw between electors and the people would be a distinction of form but no substance and that is the very point that their Honours were making. There is a distinction of substance between the two concepts.

HAYNE J: The proposition you seek to derive from McKinlay is one that seems to be that a prescription made under sections 8 and 30 that disqualifies a class of persons can be changed, if at all, only in a way that diminishes the number of persons caught by the disqualification, is that right?

MR MERKEL: No, your Honour. We say it can only be changed in a way that is rationally connected with the function of the sections which is the entitlement of those - - -

HAYNE J: Up or down?

MR MERKEL: Up or down? We do not - - -

HAYNE J: I see, because the proposition you earlier put was that over time as the Franchise extends it cannot be diminished except by section 30.

MR MERKEL: Except by section 30 and subject to the limitation in section 30 that it satisfies the criteria for which we contend. We do not have any problem with expanding the Franchise, nor do we have a problem with shrinking it provided the shrinking meets the criteria, the disqualification notion. People cannot be deprived of the right of the vote because they have become, for want of a better expression, members of that class having the entitlement, being the people. We say otherwise the process has no protection from the very evils that it was designed to prevent, namely, the people having their share in government. I do not come to the people in this context as an abstract notion. The plaintiff was an Australian citizen entitled and obliged to vote. This is not a question of qualification. She has been deprived of that right.

CRENNAN J: Mr Merkel, some people would, historians, for example, I think it is fair to say, would talk about expansion of the Franchise meaning the theoretical idea mid-19th Century in the colonies was one man, one vote and that meant detaching the vote from owning property in the lower house. Then women are included and then indigenous people are included all under this theoretical notion that one man, one vote, detached from property, detached from class, in other words, is what should inform the people in this representative government.

That is one idea, expanding the Franchise under that theoretical umbrella of one man, one vote. It was always quite separate from that the idea that you might have a disqualification for prisoners but, really, that disqualification had nothing to do with the central idea of one man, one vote which is a Franchise that has become extended by the inclusion, subsequently, of women and indigenous people. You seem to be rolling the two ideas together.

MR MERKEL: I certainly do not intend to roll the two ideas together, your Honour. The expansion of the vote on the franchise that your Honour has talked about using the plaintiff as an example has her fall within the franchise both as a person who is indigenous and previously excluded and as a woman who was previously excluded in some areas. As such she became part of the people. The question arising in this case then is, what is the power to deprive her of that right that she has gained as part of the people? We say we are not rolling it up. The first part goes to why she has become part of this collective body called the people. The second part independently is where does Parliament’s power come from to take her out of that category? We say that is the question arising in this case. If it be a power without limitation, then we say that it undermines the very purpose for which the power was created. We say that because disqualification raises that discrete question, we are – and I hope I have made it clear – putting it as two separate categories.

CRENNAN J: This is a disqualification that was always in the same basket as the disqualifications in relation to unsound mind.

MR MERKEL: We say, your Honour, on this aspect of our argument it does not apply on the freedom of political communication, but on this aspect of our argument we say as a class there has been equally an expansion of the franchise in respect of prisoners. Since 1901 it is only prisoners who were serving a five-year sentence who were excluded.

CRENNAN J: There has been a reduction in the disqualification rather than an expansion of the franchise.

MR MERKEL: But we would say, with respect, they are reverse sides of the same coin, your Honour, because the reduction in the disqualification has therefore expanded the franchise to that group in the same way as the minimum age would bring about the same result. The reduction in the qualification has brought in an expansion of the franchise but we would say, even though of course a minimum age is set for a different purpose than disqualification of prisoners, the same underlying principle applies. By reference to what power can the minimum age now be increased?

Can I just take up the question that his Honour the Chief Justice raised in Mulholland. The Court has not considered could there be an imposition of a maximum age. Plainly under section 30 there could be as a qualification or, more accurately, as a disqualification. If you reach 70 you are no longer entitled to be an elector. Provided that does not exclude whatever the percentage might be to make it no longer a choice by the people, that is permissible but we would say it is not the concept that is protected and found by members of this Court to be protected by the relevant constitutional provisions.

CRENNAN J: Can I ask you this. What would be the source of power to disqualify people of unsound mind?

MR MERKEL: We would say, your Honour, the source of the power – that is the classic instance of incapacity to choose and the text itself of sections 7 and 24 bring up the concept of capacity to choose because there must be choice by the people, so inherent in those sections – indeed, in McKinlay his Honour Justice Murphy would suggest that possibly may be the only limitation because capacity to choose is an inherent aspect of the people’s choice. So to prescribe requirements that dictate what capacity to choose is and losing the eligibility because of incapacity inheres in the two sections themselves. His Honour in McKinlay said of the - - -

KIRBY J: What page?

MR MERKEL: Page 68 at the bottom of the page under the heading of “Chosen by the People” his Honour said:

The literal and commonsense construction of this important constitutional provision is a choosing by all people capable of choosing, only excluding those incapable, such as minors and those of unsound mind.

Then his Honour went on to add:

It may have been accepted in 1900 that “chosen by the people” could exclude women and people without certain property. Women were then deprived of the vote in certain States and this was referred to obliquely in s 128 of the Constitution. Because of the silent operation of constitutional principles, this is no longer so. In 1975, any law of the Parliament which deprived persons of a right to representation or to vote on the ground of sex or lack of property would be incompatible with the command that the House of Representatives be directly “chosen by the people”. It would contravene s 24 and be thus unconstitutional.

But again, as Justice Gaudron pointed out, this still raises the question of the process by which it is to be determined that there is or is not an election of representatives chosen by the people. But we do, with respect, say that what we have put forward accommodates the numerous examples put forward by members of the Court and the maximum voting age, with respect, is a very good test of this principle. They are citizens entitled to the right to vote and they will be deprived of it upon meeting a certain age. It should be unacceptable that they are deprived of it other than by reference to an unsoundness of mind. What is the constitutional principle that would permit Parliament to do so? Either none or, we would submit with respect, the kind of principle we would put forward. We are indifferent to which of the three pathways of the first three we put forward gives rise to that limitation. We offer three alternatives towards, in effect, the same result.

KIRBY J: Do you say that it would be invalid for the Parliament to endeavour to go back to 21 as the age for voting?

MR MERKEL: Yes, your Honour. We would say it could not be done save by reference to one or other of the criteria we have put forward. If, for example, it were found that, say, after a short period of time – it is now more difficult with the passage of time, but within a year of the lowering of the voting age to 18 it was found by reference to some reasonable standard that people between the age of 18 and 21 were not responsible in the way in which they exercise their voting rights, it may be within the latitude of power to Parliament to say that the extension was a mistake. It is difficult to perceive of it but we say, technically speaking, it would be within the principles if, for the purpose of reinstating 21, there was a rational basis and connection and so forth because the power was being exercised in a way that was contrary to the purpose of conferring it, but we say one still has to find a principle for it.

Possibly the best answer I can give to approaching this purely textually in terms of the kind of analysis I think your Honour Justice Hayne had put to me in terms of qualification in section 30 having a meaning in the latter part that imports disqualification, I suppose the best answer I can give would be citing the way in which Chief Justice Mason approached this question in terms of the operation of these sections in ACTV [1992] HCA 45; 177 CLR 106. Can I take your Honours to page 135 of that report where his Honour, citing at the top of page 135:

Dixon J in Melbourne Corporation v The Commonwealth where his Honour stated that “the efficacy of the system logically demands” the restriction which has been implied and that “an intention of this sort is . . . to be plainly seen in the very frame of the Constitution”.

Then two-thirds of the way down the next paragraph Chief Justice Mason said:

However, where the implication is structural rather than textual it is no doubt correct to say that the term sought to be implied must be logically or practically necessary for the preservation of the integrity of that structure.

It may be in an awkward way that is precisely the principle that I have been seeking to address by saying that this is the integrity that sections 7 and 24 require. Then his Honour went on to say:

It is essential to keep steadily in mind the critical difference between an implication and an unexpressed assumption upon which the framers proceeded in drafting the Constitution. The former is a term or concept which inheres in the instrument and as such operates as part of the instrument, whereas an assumption stands outside the instrument. Thus, the founders assumed that the Senate would protect the States but in the result it did not do so. On the other hand, the principle of responsible government – the system of government by which the executive is responsible to the legislature – is not merely an assumption upon which the actual provisions are based; it is an integral element in the Constitution. In the words of Isaacs J. in The Commonwealth v Kreglinger & Fernau Ltd. and Bardsley: “It is part of the fabric on which the written words of the Constitution are superimposed.”

Then over the page at page 136 his Honour cited Professor Harrison Moore, which we rely on very strongly in this context:

“The great underlying principle is, that the rights of individuals are sufficiently secured by ensuring, as far as possible, to each a share, and an equal share, in political power.”

Then, at the bottom of the page, his Honour says – and this has been developed, of course, in Lange:

The plaintiffs say that, because such a freedom is an essential concomitant of representative government –

the freedom of communication, an expression –

it is necessarily implied in the prescription of –

the Constitution. At 139 to 40 his Honour said at 139 point 2, halfway down the first paragraph:

Absent such a freedom of communication, representative government would fail to achieve its purpose, namely, government by the people through their elected representatives; government would cease to be responsive to the needs and wishes of the people and, in that sense, would cease to be truly representative.

Then his Honour referred to Archibald Cox, down the page, making a similar point:

Only by freedom of speech, of the press, and of association can people build and assert political power, including the power to change the men who govern them.”

Then there is the reference back to Harrison Moore. We say the fabric necessitates a limitation on the power of the representatives to determine who can change them. We say that the Commonwealth’s submissions and those of the interveners against us try to put text above context and above purpose and in this area of discourse nothing can be clearer than that is not what was found in ACTV and the freedom of political communication cases since. We say that that is the explanation and the answer - - -

KIRBY J: I just have a little difficulty putting the exclusion of a proportion of prisoners, very small in number of the total population, from the franchise as in the same class of stopping all the people of the Commonwealth, or those who are interested, getting the material that is necessary to make informed choices. It seems to me that your principle has to be founded on something a bit different from that. It has to be founded on notions of citizenship and entitlements because you are a member of the polity and you do not cease to be that just because you are imprisoned. Indeed, on the Canadian theory, you remain that and it is important that you do remain a citizen and that you exercise those rights because that is part of the notion of the nation.

MR MERKEL: With respect, I agree with your Honour. If I have not expressed it clearly then I apologise but our central hypothesis is not to show that the expansion of the franchise in respect of prisoners is the focal point of our submission. What we are seeking to say is that prisoners who are disenfranchised are citizens who have the right to vote. They are members of the people. Since 1901 a specific and limited category has been excluded and we have to accept that that was the situation in those times.

Therefore, to that extent, approaching the matter as we would say the people has been approached in this way, all we say is that that exclusion has shrunk considerably so the significance of any prisoner exclusion has diminished. But then, when Parliament comes to, in effect, expand the exclusion back, to take one back to where we were, what it is effectively doing is, properly understood, depriving citizens of the right to vote even though they are fully qualified and have been accepted and are members of the people.

It is in that category, we say, that there must be found to be an implied constitutional limitation on Parliament’s power. Whether it be in respect of prisoners or minimum or maximum voting age, the same principle is attracted. It is taking away by reason of a supervening circumstance unrelated to the electoral process the right that you have had and it is deprivation of that right of a citizen that attracts the principles that we say apply in this case. It is for that reason that Professor Tribe, Professor Harrison Moore, the analysis of Chief Justice Mason, give a very solid underpinning and foundation for our argument.

Then his Honour, Justice Brennan, at page 150, in a passage I briefly referred to earlier, talked of the freedom as an immunity – this is about a third of the way down the page:

an immunity consequent on a limitation of legislative power. The power cannot be exercised to impair unduly the freedom of informed political discussion which is essential to the maintenance of a system of representative government. Whether that freedom is regarded as an incident of the individual right to vote or as inherent in the system of representative and responsible government prescribed by Ch. 1 of the Constitution, it limits the legislative powers otherwise conferred on the Parliament.

We would say that whether as an incident or as inherent in the system is not a problem that the right to vote has. The right to vote is the system, and we say to not give it the protection under the fabric of the Constitution that communication has to get an informed choice would reveal an internal contradiction.

KIRBY J: Justice Brennan’s view ultimately prevailed in Lange, did it not?

MR MERKEL: Yes, your Honour.

KIRBY J: The notion is not of a freestanding right in the American manner, that it is of a limitation on Parliament to deprive citizens of the entitlement to vote.

MR MERKEL: That is right, your Honour, and we say our three pathways fall fairly and squarely within those parameters and do not seek to go outside it.

GLEESON CJ: Is that a convenient time, Mr Merkel.

MR MERKEL: Yes, it is, your Honour.

GLEESON CJ: We will adjourn until 2.15 pm.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

GLEESON CJ: Yes, Mr Merkel.

MR MERKEL: If the Court pleases. Lest the Commonwealth feel I possibly have done them an injustice by suggesting that their test is essentially a quantitative test, can I take your Honours briefly to the Commonwealth’s written submissions. It is at paragraph 12 that the concession, if that is what it is called, is made that sections 7 and 24 have a constraining effect. It is at page 5 of the submissions. The constraining effect conceded by the Commonwealth is expressed as follows:

the voting system as a whole must not be “so distorted as not to answer the broad identification . . . of ultimate control by periodic popular election”.

KIRBY J: What paragraph is this, I am sorry?

MR MERKEL: That is at paragraph 12, your Honour, at the bottom of page 5 over to page 6. At paragraph 14 the distortion is to be answered by identification requiring a question of degree. What we would say is that it identifies the problem that may arise but it does nothing to identify the process by which the outcome is to be determined. In other words, it offers no criteria for how one looks at the electoral process as a whole and asks has it been so distorted as to not answer the broad identification of control by periodic popular election.

So we say, with respect, it really raises the problem but does nothing to answer it save that the only way one can translate that in terms of enfranchisement is one of quantification. There is certainly nothing by reference to a qualitative approach that it would be protective of the kind of misuse or abuse of the power that we say arises. We say it is an essential failure of the Commonwealth’s submissions to grapple with that problem.

Just shortly prior to the adjournment I was taking your Honours to ACTV [1992] HCA 45; 177 CLR 106. I just briefly wanted to go to Justice McHugh because his Honour importantly at pages 227 through to 235 enunciates his Honour’s view of the freedom, particularly at point 3 at 227 where his Honour enunciates the freedom of sections 7 and 24 in terms of:

constitutional rights of freedom of participation, association and communication in relation to federal elections.

His Honour then goes on at 230 to 232 to explain the basis for that freedom, but particularly at the bottom of page 230 his Honour says:

The “share in the government which the Constitution ensures” would be but a pious aspiration unless ss. 7 and 24 carried with them more than the right to cast a vote. The guarantees embodied in ss. 7 and 24 could not be satisfied by the Parliament requiring the people to select their representatives from a list of names drawn up by government officers.

Down at the bottom of page 231 his Honour then discusses the rationale for his Honour’s freedom and refers to the words “directly chosen by the people” to be read:

as referring to a process – the process which commences when an election is called and ends with the declaration of the poll. The process includes all those steps which are directed to the people electing their representatives – nominating, campaigning, advertising, debating, criticizing and voting. In respect of such steps, the people possess the right to participate, the right to associate and the right to communicate.

We would say, with respect, that his Honour’s approach is quite unexceptionable and his Honour concludes at 235, again a third of the way down the page before his Honour gets to section 95B, the last sentence:

While the rights which ss. 7 and 24 confer are not absolute, they are so fundamental to the achievement of a true choice by the electorate that a law enacted pursuant to the powers conferred by s. 51 which seeks to prohibit or regulate the content of electoral communications can only be upheld on grounds of compelling justification.

Of course, “electoral communications” in that context, as later explained and amplified by his Honour, include the right to vote.

In Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1, at page 70 and over at page 72, particularly at page 70 at point 8, their Honours Justices Deane and Toohey make the comment in the last sentence of that main paragraph:

The rational basis of that doctrine [of representative government] is the thesis that all powers of government ultimately belong to, and are derived from, the governed.

It is “the governed” that we say is protected by the franchise and it is “the governed” that cannot have that franchise taken away from them save by reference to criteria of the kind that we have put forward. Then their Honours make the point at the top of page 72:

While one can point to qualifications and exceptions, such as those concerned with the protection of the position of the less populous States, the general effect of the Constitution is, at least since the adoption of full adult suffrage by all the States, that all citizens of the Commonwealth who are not under some special disability are entitled to share equally in the exercise of those ultimate powers of governmental control.

In Langer, and I will not take your Honours to it, but your Honour, Justice Gummow had observed at page 350 the centrality of the role of the vote in the political process. In Lange, and again I will not take your Honours to it, but the exposition of the Court in Lange at 557, 558, 559, 560 and 566 to 567 is an exposition, whilst in the context of political communication, necessarily carries with it the logical extension of protection of the right to vote and we say that protection is enhanced by the modification to the Lange test in Coleman v Power.

If I could next go to Mulholland [2004] HCA 41; (2004) 220 CLR 181, your Honour the Chief Justice in paragraph 10 referred to the “irreducible minimum content” and Justice McHugh at paragraph 63 made the same observation:

the Constitution prescribes only the irreducible minimum requirements for representative government –

His Honour Justice McHugh again explained his Honour’s view of the role of voting and its importance at paragraphs 94 onwards where his Honour said:

the Full Court correctly held that the ballot-paper is a communication on political and government matters -

right through to paragraph 98 where his Honour concluded:

Accordingly, a ballot-paper is a communication on political and government matters.

Your Honour Justice Kirby at paragraph 282 made the point that:

Only the most artificial interpretation of the scope of constitutionally protected political communication could sustain such a submission -

that the vote was outside the protection -

By agreeing to identify themselves with named political parties, candidates communicate with the electors. They do so at the critical moment of electoral “choice”. They thereby signify the alignment of their views, so far as the name of their political party is concerned. As such, the ballot paper represents a communication with the people –

Then your Honour added at paragraph 283 :

It follows that the Full Court was correct to find a burden on free political communication. Unless we are blinded by matters of form, it is not in the letter of the Act that an impermissible constitutional burden is found but in the way the Act operates in practice and in effect.

HAYNE J: This stream of authority you cite in aid of drawing, or what is being seen to be drawn from the Constitution about freedoms of participation, association and communication?

MR MERKEL: Yes, your Honour.

HAYNE J: Why is that not directly antithetical with the giving of a vote to persons who by definition are not at the time at which they are called on to vote free to move, free to associate or free to communicate because they are subject to incarceration?

MR MERKEL: Your Honour, because we say the facts of the case do not sustain the conclusion your Honour has put to me that the facts of the case are that within the prison system they are free to communicate, they are free to engage in the kind of processes that citizens are entitled to engage in concerning informing themselves as to political matters, communicating as to political matters and, of course, the very example of the plaintiff herself is a primary example of how that freedom is exercised in a practical and realistic way in relation to her own activities, but also - - -

HAYNE J: That is a particular example of a particular prisoner under a particular prison regime. It would, for example, I think be radically different if the plaintiff were male and incarcerated at Acacia wing in Barwon Prison, for example, to take a Victorian example.

MR MERKEL: Your Honour, putting aside solitary confinement which might have its own issues, although probably not in relation to some communications, but putting that aside, the facts in the special case, as amplified on by this morning’s acceptance that the Victorian position prevails generally, does not contain any kind of restriction on the freedom of communication and the freedom to form an informed choice in respect of prisoners that would result in them removing or having removed from them the right to vote, but there is a circularity in that - - -

HAYNE J: The very essence of imprisonment is that you are not at liberty, you are subject to direction. That is the very essence of imprisonment.

MR MERKEL: Your Honour, there is a certain circularity in what your Honour is putting to me, with respect, and it was a circularity dealt in Canada in the Court of Appeal in Belczowski where the government initially had put the argument that prisoners could not be informed and it was rejected out of hand, not only on the basis that they could be, but also it was entirely circular saying that if you remove from them the right to be informed and then you rely on that removal and you say they have no right to be informed.

We would say, your Honour, that taking those prisoners who are entitled to participate in the process, on remand or awaiting sentence, they are part of a prison system but yet they are entitled to participate and they are entitled to be informed. Your Honour, we say that if the effect of the system, which we say it is not, is to prevent those prisoners from being informed and participating in the process by exercising a vote, and it is exercising a vote that we are talking of, we are not talking about their qualification to stand as members, then that may itself fall afoul of the political freedom.

So we say that they cannot be denied the vote because they are prevented as a matter of fact from exercising the right of an informed choice. The answer to that problem means that they should have the right of an informed choice, your Honour. We say it becomes circular in that respect, but Belczowski, we say with respect, rejected that kind of hypothesis. The government, in the present case, has put that as one of their legitimate ends, but we say it does not withstand any kind of objective analysis. The problem, if it be a problem, lies in prisoners having that right because it is a constitutional right which should not be taken away from them.

KIRBY J: My recollection from lessons in criminology a long while ago was that the modern theory of imprisonment is that it deprives the individual of liberty, but save for that you do not have to impose bread and dripping regimes, you are still a human being and you are still a citizen and you are still entitled to whatever is left over that is not completely incompatible with the imprisonment.

MR MERKEL: That is right, your Honour, and we say those are the very theories that underline imprisonment in our system and I suppose I cannot point to any more powerful an exposition of the significance of that than the majority judgment in Sauvé No 2 in the Supreme Court of Canada which did not accept that kind of rationale that is being put forward by the Commonwealth as sustainable even in respect of a two-year sentence.

We would, with respect, adopt what their Honours have said with an articulation we could not even pretend to capture that the idea of denial of the vote to persons because they are serving a sentence in prison for two years is the anthesis of what imprisonment should seek to achieve by making them responsible members of society and having them perform a role in society, particularly when government is so integrally connected with every aspect of their lives.

It is something that we say is not a way of approach, or an approach that would be acceptable in this day and age in respect of imprisonment. We say the facts of the present case do not support the kind of harsh and cruel isolation that existed in the past.

KIRBY J: I have a dim recollection that in the British election, a prisoner or some prisoners in the Maze Prison in Northern Ireland were elected to the House of Commons – I may be wrong about that. They may not be able to vote but they still were citizens or subjects of the Queen and were able to stand. It was done for symbolic reasons. One could imagine Mahatma Gandhi might have got a thumping majority if he stood in the time of Indian freedom movement if he had been able to.

MR MERKEL: If he were in prison in Australia in 1902, your Honour, he would have been able to be elected to Parliament as long as his sentence was no more than 364 days. The Constitution itself for the elected does not prescribe something that is unacceptable or antithetical to representative democracy in respect of imprisonment, yet this Parliament has, both in respect of members, with which we are not concerned in this case, but in respect of electors and we say that there is a certain paradox about that.

Before I leave the first three pathways, we say that ultimately there is nothing in the decided cases that would prevent your Honours from finding in respect of the implied freedom of communication an extension or an aspect of it, whichever way it is looked at, along the lines of what your Honours Justice Kirby and Justice McHugh had enunciated in Mulholland, and Justice McHugh consistently since ACTV.

Indeed, we would say that the very fabric that gave rise to the implication must, as a matter of logic, protect ultimately the right to vote because that is what the process of elections comes down to, its centrality and the whole role cannot, in principle, in logic or even on the Commonwealth’s approach, give it a protection less than that afforded to the pathway to the vote.

I now want to move if I might to our submissions on the punitive aspect which is pathway 4 which is an entirely different approach conceptually.

HEYDON J: Which paragraphs of the written submissions deal with that?

MR MERKEL: This is in our reply submissions, your Honour, in paragraphs 16 through to 21.

HEYDON J: Thank you.

MR MERKEL: Could I just briefly take your Honours to how these issues were approached in the Canadian context because the judgment which analysed this question in the Supreme Court on a 5:4 decision was the response to Sauvé No 1 which dealt with the process in Canada which was akin to our present process where prisoners were barred from voting altogether and that went through the Court of Appeals on the way to the Supreme Court.

Can I hand up firstly the first judgment in Sauvé v Canada (Attorney-General) (1992) 89 DLR (4th) 644. The judgment was that of her Honour, Justice of Appeal Arbour, and just to explain, there were two cases that ultimately went to the Supreme Court. One was Belczowski and the other was Sauvé, and if I can refer to it as Sauvé No 1 and can I just take your Honours to the passage at page 651, although I would invite your Honours to read the whole of the - - -

GLEESON CJ: Did this litigation turn on the justification, as it were, for the non-compliance with the Charter?

MR MERKEL: Both, your Honour, on whether there was a legitimate end and whether the end satisfied the Oakes proportionality tests, the steps in Oakes. So it was both on the end and its proportionality and it failed at both, but the general approach in Canada is to not really look at the legitimate end divorced from the proportionality because the proportionality was so intimately bound up with the end that it was broadly approached under one heading. What her Honour did at page 651 is agree with the trial judge in Belczowski:

that the most plausible objective for the disenfranchisement of inmates is to sanction offenders. Like him, however, I ultimately reject that objective. I also agree with Hugessen J.A.’s comments in Belczowski that if s. 51(e) –

which was the dispossession of the voting right –

is meant to impose punishment, it is punishment for imprisonment rather than for the commission of an offence.

Her Honour then quotes Justice Hugessen, referring to the earlier Canadian ancestor which was that a person is not capable if they are:

attainted for Treason or Felony in any Court of Law within any of his Majesty’s Dominions, or who shall be within any Description of Persons disqualified by any Act . . .

A denial of the right to vote for persons convicted of treason or felony can readily be understood as a punishment for those crimes. A similar denial imposed only on those who are actually in prison –

in prison serving a sentence –

looks more like a consequence of that condition than a sanction for the conduct which brought it about in the first place.

GLEESON CJ: As to the question that I just asked you, I am looking at the top of page 648:

the principal issue was whether disenfranchisement could be justified . . . and I approach the matter in that light.

MR MERKEL: As I understood it, your Honour, it is by asking what are the ends sought to be achieved and is there proportionality to those ends?

GLEESON CJ: Is it right that this was a case about justification?

MR MERKEL: Yes, your Honour. I am reminded by my learned friend, the Solicitor, that 647 sets out the provisions and one sees at section 51(e) it captures:

every person undergoing punishment as an inmate in any penal institution for the commission of any offence –

So it is for all intents and purposes the same kind of provision with which we are dealing in the present case.

GUMMOW J: Where do we see the text of section 1 of the Charter?

MR MERKEL: I think on the same page. Section 3 is set out, your Honour, at 647g:

Every citizen of Canada has the right to vote - - -

GUMMOW J: I know, but it is section 1 I am worried about. That is the justification section.

KIRBY J: The headnote says that it cannot be upheld as reasonable limit under section 1 and that is what her Ladyship seems to be dealing with.

MR MERKEL: It is set out in Belczowski, your Honour, but section 1 says:

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.

GLEESON CJ: Yes, so section 3 says, and I am reading from Sauvé No 2, “Every citizen of Canada has the right to vote” and the question in issue in the Canadian proceedings was whether this limitation on the right of every citizen to vote was a reasonable limit prescribed by law such as could be demonstrably justified in a free and democratic society. The Charter said everybody has the right to vote, but the right to vote was limited by this provision about prisoners and the question for the Canadian courts was whether this was a reasonable limit that could be demonstrably justified in a free and democratic society. How does that relate to the issue with which we are concerned?

MR MERKEL: In this way, your Honour, that on the principles which we have expounded upon in the first three pathways, at least at the compelling justification level, if that be accepted as a direct burden on the right to vote, then that is analogous to the Canadian principle. But if the Canadian principle be higher in the sense that our proportionality test as enunciated in Lange applies, which is less demanding than the Canadian principle, the real point and purpose of going to these cases is not to try and look at comparable provisions, but to look at how their Honours examined the same deprivation of the right, namely, a right to vote and looked at its arbitrariness and unfairness by reference to the democratic process.

For example, in Belczowski in the Court of Appeal, Appeal Justice Hugessen concluded that paragraph 51(e) is arbitrary, unfair and based on irrational considerations. That was a conclusion that applies equally to our own regime as a matter of fact and if that was so, it would fail the Lange test, it would fail the compelling justification test. So the benefit from these cases is not so much that we are trying to translate jurisprudence by reference to other constitutional provisions into this Court to our Constitution, but we would seek to obtain the benefit of how judges in other courts have looked at this very kind of prohibition and rejected it out of hand because of its arbitrariness which as a matter of fact I will come to shortly.

That is really the point that we seek to derive from it when the Court of Appeal at two levels in Canada in Belczowski and in Sauvé make those observations and then the matter goes to a nine-justice Supreme Court and their Honours say that that section, 51(e), fails to meet the proportionality test particularly in the minimum impairment component. What this Court has is a process of reasoning which is unexceptionable, which shows how arbitrary this very exclusion is.

GLEESON CJ: In this context, proportionality means the least impairment that you can impose upon the right that is declared in the Charter, does it not?

MR MERKEL: Yes, your Honour, which would be comparable to a compelling justification criterion if the Court adopted that as a direct burden test, would not be comparable with the Lange, Coleman v Powell test. I accept that, but we say that when one looks at the reasoning of Justice Arbour or Justice Hugessen, this case, at that level, did not fail on the niceties of distinction between proportionality at, say, an Australian level or at a Canadian level. It failed at any level.

Then, one got to Sauve No 2 where the contest was the government’s response to Sauve No 1 and there one got an understandable dichotomy between a majority of five that picked up and articulated a reasoning why prisoner disenfranchisement failed to meet the Charter test and a very articulated explanation by the minority of why in the process of dialogue between the courts and Parliament deference should be given to Parliament on that issue, but that was entirely on the basis that there they had a two-year qualification – two-year sentence qualification which their Honours in the minority were prepared to accept came into the serious crime category, therefore did not suffer from the vice of the section 51(e) regime or, analogously to our case, the Australian regime.

We would say, with respect, the Canadian approach is one that is compelling but not by reference to necessarily translating the principle across but how their Honours approached the facts which I will come to very shortly.

KIRBY J: By the way, what happened after Sauvé No 2? Did the Canadian Parliament amend the Electoral Act once again to provide a different criterion?

MR MERKEL: That is another question I can take on notice.

KIRBY J: You can add that to the shopping list, then, Mr Merkel.

MR MERKEL: I have not followed that through, your Honour. I cannot give your Honour an answer to that. I had mentioned and we had referred to it in our reply that the extrinsic material showed that the amending Act in the present case was said to be for two purposes, punitive and educative. What we say in terms of this punitive principle, translating it - - -

GLEESON CJ: They were the justifications that were advanced in terms of section 1 of the Charter.

MR MERKEL: No, the - - -

GLEESON CJ: It is a form of punishment and it is a form of education.

MR MERKEL: That was in the Australian committee reports, your Honour, and now I have moved away from Canada and in the extrinsic material in respect of our 2006 amending legislation all that one can glean by way of explanation for the current regime was punitive and educative. We accept purpose must be determined objectively but against a background of what is said, but the punitive purpose we say is plain. It is, as was stated by their Honours, an additional sanction imposed by the person for being imprisoned as a result of committing an offence.

Your Honour Justice Gummow in Kruger v The Commonwealth [1997] HCA 27; 190 CLR 1 summarised the principle in Lim. At page 162 at the top of the page in the context of detention, and this goes to whether this is an unauthorised punishment and therefore beyond power:

The question whether a power to detain persons or to take them into custody is to be characterised as punitive in nature, so as to attract the operation of Ch III, depends upon whether those activities are reasonably capable of being seen as necessary for a legitimate non-punitive objective.

Your Honour cites a number of passages in Lim.

GUMMOW J: This is not about detention or custody.

MR MERKEL: That was about detention, your Honour, but we say no different principle would apply if the deprivation of the vote was punitive. We are now looking at whether it was for a punitive purpose. In Re Woolley 225 CLR 1, I will just give your Honours the paragraph references. Your Honour the Chief Justice at paragraph 24, Justice McHugh at paragraph 62, your Honour Justice Gummow at paragraphs 165 to 167, your Honour Justice Hayne at 227 and Justice Callinan at 263 had regarded purpose as determinative of whether or not there was punishment and therefore the situation attracted Chapter III. We rely on the test suggested by Justice McHugh at paragraph 82 where his Honour said at the last five lines:

This distinction is a matter of substance, not form. It is not enough that the effect of the law is no different from the infliction of punishment. If the effect of the law is not readily distinguishable from the effect of inflicting punishment, a rebuttable inference will arise that the purpose of the law is to inflict punishment. But, in determining whether a law authorises or requires punishment to be inflicted in breach of Ch III of the Constitution, it is the purpose of the law that is decisive.

Your Honour Justice Kirby at paragraph 184 gave a greater role to effect than his Honour did, although the distinction may not be important for present purposes. Although the Court in Rich v ASIC [2004] HCA 42; 220 CLR 129 was looking at a question of penalties in a different context, there is one paragraph – can I hand up that judgment. It is not on our list of authorities. The paragraph that we say is of assistance in the present context is paragraph 29 of the joint judgment, where your Honour said:

That stream of authority would suggest that for the Commission to seek an order disqualifying a person from acting in the management of a corporation on the ground that the person has contravened the law is to seek a penalty or forfeiture. The order is sought by a regulatory authority; its grant would be founded on demonstration of a contravention of the law; it is an order which leads to the vacation of existing offices in a corporation and imposition of a continuing disability for the duration of the order. What is it that would deny that conclusion?

We would say that is very analogous in a - - -

GUMMOW J: No, it is not, you have to read it with paragraph 26. It is talking about.....of penalties and forfeitures in equity.

MR MERKEL: I accept that arises in that context, your Honour, although in Theophanous at paragraph 59 where we were in the area of consequences flowing from a breach of the criminal law, but in a context not analogous with the present, Rich was cited, where the notion of penalties and forfeiture are dealt with, but the point we make is not really to determine whether this would be called a penalty in equity but we do say that disqualification from a right one otherwise had by reason of a contravention of the law, we say is a classic formulation of a punishment unless, and we accept, unless it be for a legitimate purpose and is not disproportionate to that other purpose which is within power.

GLEESON CJ: What do you mean by “disproportionate” in that context? Specifically, do you mean something of the kind that is referred to in section 1 of the Canadian Charter, that is, do you mean it is the least form of restriction on the right that you can impose in order to achieve the purpose you are seeking to purpose, or do you mean something like capable of being seen as reasonably appropriate?

MR MERKEL: In this context, the latter, your Honour, and that comes directly from what we would say is the Lim test, that detention had the capacity to be for a punitive purpose or for another purpose and the way in which it was cited by Justice Gummow and we, with respect, adopted in this context is whether the disqualification or the penalty is reasonably capable of being seen as necessary for a legitimate non-punitive objective.

GLEESON CJ: In terms of the relationship between Parliament and the courts, that is a very different kind of proportionality from the kind of proportionality identified in section 1 of the Canadian Charter.

MR MERKEL: I accept that, your Honour. We can only rely on a true analogy in principle with Canada if the compelling justification criteria was adopted in respect of deprivation of the right to vote which is one of our alternatives that we have dealt with in our submission, and an alternative based upon a number of observations by a number of members of this Court as to where the burden is direct. If the Court accepts the role of the vote - as we have put it in the freedom of communication then it is a direct burden because it is removal of a citizen’s right - we would say that would attract the compelling justification burden which would find the Canadian jurisprudence would have a far more direct role in principle in application in Australia.

If it be the lower burden, the Lange burden, we accept that the Canadian criterion sets the hurdle at a higher level but that does not remove the utility of the Canadian analysis, particularly on the facts and on the nature of the imprisonment which, we say, is helpful but it does not allow the transfer of it. But we do say that in the punitive area the hurdle is set at the lower level.

GUMMOW J: What do you mean by punishment? That is why.....stayed out of this debate. I understand it when you are talking about detention, but what are we talking about?

MR MERKEL: We are talking about punishment or - - -

GUMMOW J: It has to be something other than an adverse consequence.

MR MERKEL: We would say the removal of a right. The constitutional right to vote has a penal consequence. It is a penalty imposed on a person. The day before their sentence started they had a constitutional right to vote. The day after, it was removed from them. We say that by reference to a consequence of adjudication following directly from the adjudication of criminal guilt and a sentence is classically within the area of punishment for having committed a crime.

I should say, your Honour, that the Canadians do not seem to have any problem in applying that theory and, can I say, in this context we do not have a different constitutional question because in our Australian context the plaintiff had a right and an obligation to vote the moment before she was sentenced and taken to gaol. The moment after, she had that right removed. In the Canadian Supreme Court context and in Belczowski and Sauvé the court had no difficulty in accepting that that was the – the only plausible justification for that in Sauvé No 1 was that it was punishment.

HAYNE J: It was only one of the three justifications advanced by those who were defending validity of the legislation that the court considered plausible, but the ground for debate was set entirely by the way in which the Attorney for Canada framed the asserted justifications.

MR MERKEL: That is so, your Honour, but when one gets to the arbitrariness of a regime that has the loss of the right imposed in a manner totally divorced from culpability or the nature of the offence committed, which is what our present regime has, because, as I said earlier - - -

HAYNE J: That fastens upon the criterion of being in prison. We understand that fact. The rest seems to me to be a jury address, Mr Merkel.

MR MERKEL: Well, your Honour, with the jury address heading before me, can I go, your Honour, to what we say the facts and the special case facts demonstrate in the present case.

GUMMOW J: Just before you do that, trying to grapple and find some principle, is what you are saying, in effect, something like this, that what this legislation does is adversely affect a matter of civil status analogously to the loss of civil status and other aspects involved in Dugan’s Case, for example, the felony rule? Is that the idea? That is coming back into discourse through this particular regime we now have.

MR MERKEL: Yes, your Honour. A particular aspect of civil status which is a right highly valued in the Constitution and highly valued as a matter of law and it is removal of that right.

CRENNAN J: If that is right, disability rather than punishment might be the relevant description.

MR MERKEL: We would say, your Honour, if it were divorced from the criminal process, it could be called a disability but, because it is a consequence of adjudication of criminal guilt and an additional penalty imposed or additional loss imposed of one’s civil rights, we would say in respect of the right to vote that it would not be captured in that context by disability. We would say the loss of the right to vote as a result of being convicted of a crime is not to be equated with an unsound mind. That would take us a long way back in this area of discourse. Can I hand up to your Honours the factual basis for our submission as to arbitrariness.

HEYDON J: Does this add something to your written submissions in-chief?

MR MERKEL: It is to explain them, your Honour, but particularly to explain the statements made at paragraph 97 and to take the Court through this document for the basis for the statement. In the present case, unlike the situation in Canada, we do have statistics before the Court that show in a fairly informative manner how this particular regime will work, but the point we make in paragraph 97 is that under this criterion – it is a point supported, I would, with respect, submit by the approach to the same kind of regime in the European Union, Canada and South Africa. The arbitrariness comes from the fact that the special case evidence shows that only some people who have breached the social compact will go to gaol.

However, much depends on where their crime is committed, whether it is reported, whether it is acted upon, whether they are charged, whether convicted, whether their sentence falls within the acceptable range, whether personal circumstances extraneous to their moral culpability apply, whether the sentencing discretion miscarries, when they are sent to gaol, whether later successful on a conviction or sentence appeal or on retrial, their race and their sex and finally on parole decisions. Such factors which are necessary aspects of the criminal justice system ought not to be relevant to determining the franchise.

The facts that we would wish briefly to take your Honours to make good, we would say, with respect, as a matter of fact each of the elements of those submissions. If I could just briefly address those facts, the first, again a matter taken up in Canada both in Sauvé No 2 and Sauvé No 1, is that it is purely fortuitous as to whether you will in fact lose the right to vote because it depends where your sentence falls in the electoral cycle. We say on average federal elections are held every two years and four months. As at June 2006 35 per cent of the prison population is serving a sentence of two years or less. Then we have an explanation of the aggregate sentencing lengths and then we have the sentencing time on average in New South Wales. The point to be made is it is purely fortuitous as to whether or not this process will deprive you of the right to vote or not, showing one example of the arbitrariness of the criterion.

In the second paragraph we look at the statistics on sentences for the same or comparable offences and the extent to which they vary between States. This goes to the point that so much depends on where you might be convicted. The example is given on the statistics that in 2000-2004 in South Australia 72 per cent of federal fraud convictions resulted in prison; in New South Wales the figure was only 20 per cent. In the Northern Territory the mean maximum term for a conviction for fraud - - -

GLEESON CJ: How did the numbers in South Australia compare with the numbers in New South Wales?

MR MERKEL: I think these are all ABS statistics, your Honour.

GLEESON CJ: Yes, but I am trying to distinguish between support and light.

MR MERKEL: I am sorry?

GLEESON CJ: I am raising the problem with the lamppost. How do the numbers on which those statistics are based compare? Suppose that only a very few people in South Australia were convicted of federal fraud offences and a lot of people in New South Wales were convicted.

MR MERKEL: Yes. Your Honour, that would, of course, take us to the statistical problem of a small enough sample, or too small a sample may not be indicative but the point we really want to make, your Honour, is that of course we cannot invite the Court to take these as statistical facts that we are necessarily comparing like with like, but the evidence to which no response is sought to be put that there is anything misleading or wrong in our reliance on it is compelling about the end result that we say that there is a huge discrepancy in sentencing outcomes in different parts of Australia.

GLEESON CJ: Take paragraph b under number 2, you are comparing the Northern Territory with Victoria. Again, do we know how many people were convicted of fraud in the Northern Territory over that period as compared with how many in Victoria?

MR MERKEL: If I can take that on board, your Honour, because I think the statistics will tell us that but what we are saying is that these are the facts that emerge from the special case. We say that even though - we have picked out the most, if you want, extreme examples, but the examples - - -

GLEESON CJ: That possibility had occurred to me.

MR MERKEL: I am sorry if I had not indicated it more clearly, your Honour. Your Honour, when it comes to paragraph e in a report which is part of the material then the Australian Law Reform Commission talks of Same Crime Same Time it is noted there is compelling evidence of inconsistency in the sentencing of federal offenders across Australia. We are not able to prove the nature or extent of the inconsistency, but we say that when all these figures are looked at it is beyond argument that there is not this inconsistency.

The evidence points only one way, your Honour. I accept the qualifications that your Honour puts on statistical evidence and were it necessary to have to prove the extent of the inconsistency, one may approach it with some caution, but we say with no answering material that this is compelling. What is not statistical, your Honour, is paragraph f in our appendix 3, “Different states have different penalties for the same conduct”.

What is also compelling and does not suffer from that problem, your Honour, is that in different States the penalty of imprisonment is imposed in respect of some offences whilst in others it is not. Again, this is just yet another indication of the arbitrariness of the imposition of imprisonment and also what is not statistical is a fact that can be accepted by all because sentencing and parole criteria vary across the States. Appendix 2 shows that. It must, as a necessary corollary of that, mean that there will be different outcomes for the same conduct, based upon the extent to which weight is given in the criteria to personal factors as opposed to culpability factors.

We say that there is a discrepancy between the States and Territories. This is not a Leeth point, as is put against us. We are not saying there is anything unlawful about the discrepancy. It may be a way in which the Australian criminal justice system operates as a State and Territory-based system, but when it is all picked up by one simple criterion of imprisonment it is not possible to treat imprisonment in the way in which it is put against us, namely, it is a measure of culpability. We say, with respect, it is not a measure of culpability, it is a response to a vast range of factors of which culpability is just but one.

GLEESON CJ: But your argument based on these statistics would be precisely the same if the requirement for disqualification was not imprisonment but imprisonment for 15 years.

MR MERKEL: Your Honour, the argument would diminish in consequence once we are into 15 years. We are not into the range of public order offences and minor matters, we are into the range of 15 years for a limited category of offences where, by reason of the seriousness of the crime and the nature of the offence, one can accept that there will be less likely with appellate review to be the kind of inconsistency which we contend for here. But we say the arbitrariness of simply being in prison is just not comparable to two years, five years or 15 years because it lacks the critical element of serious culpability in respect of a serious offence, people in gaol for such an array of reasons.

Then we have the incarceration rates vary across States. We have the provision in New South Wales for 33 percent of the population but 38 per cent in prison; Victoria follows, 24 per cent and 15 per cent in prison, again indicative that the rate of incarceration as a result of State laws being different has a practical consequence. Then comes the statistic I adverted to this morning about the situation of indigenous Australians and we say, given the 24 per cent of the prison population being indigenous, one has to query how related to culpability, how related to a large range of factors, the indigenous prison population is and what culpability is measured and how it relates to the electoral system, 13 times more likely is the reason for it. Then 5, men are more likely - - -

KIRBY J: On the indigenous population, is that roughly even throughout the country? I imagine in the Northern Territory you would have a much larger proportion of indigenes than, say, in Victoria or Tasmania.

GLEESON CJ: I think the Solicitor-General for Western Australia might be able to answer this question.

MR MERKEL: I will try and find a precise answer to that. I think we have dealt with it in the special case, your Honour. I think it is possibly - - -

KIRBY J: If you have it – you may not have it – it may be in the ALRC Report as to whether or not they are in sort of public order type offences or not inability to pay fines.

MR MERKEL: I will see if I can find it. I think it will be buried in the statistics, your Honour.

GLEESON CJ: Do inability to pay fines reflect themselves in any of this argument that we are having? Are people who are in prison because they have not paid a fine serving sentences within the meaning of the Commonwealth Act that we looked at earlier?

MR MERKEL: Your Honour, we had, in our submission, treated it as yes. The Commonwealth has referred to an authority that says that it is not serving a sentence but that is an authority in a very different context. To give an answer that is precise we would have to look at the actual provisions in each State as to whether or not being in prison for failing to pay a fine was being in prison for an offence. In other words, was the failure to pay a fine an offence and that is a matter I can take on notice, your Honour.

GLEESON CJ: However, it does raise a question in relation to figures such as those in your paragraph 4. There was a great argument erupted in New South Wales about 15 years ago about the fact that a very high number of people were in prison for not paying fines and the Director of the Bureau of Statistics, I think, pointed out that that was true but it was also true that they were there for an average of about five days.

MR MERKEL: Yes, your Honour. If I can take that on board, your Honour, because that is a point at which the Commonwealth have given one answer which in that context may be understandable, but it does come back to whether it is an offence or not to not pay a fine that lands you in prison. I do not think the numbers on the 20,000 in that arena are very high, but again, we will have to look at that. In answer to your Honour - - -

KIRBY J: If the five days coincided with the election, it is just too bad.

MR MERKEL: Well, that shows the arbitrariness, your Honour.

GLEESON CJ: Assuming you are right about that being within the definition of “serving a prison sentence”.

MR MERKEL: Yes, although the public order offences and the number of people in prison for very short periods is quite high. We have just gone to that statistic. We say that it just is not possible on any basis that we say the Court should accept to say that these people disenfranchised are all there for serious criminal conduct. It just cannot follow where the fines are in or out. The nature of the other offences make it quite clear that this cannot be what was intended and what was meant in the Constitution for a one-year punishable level or anything that has transpired since that would make the fact of being in prison of such sufficient moral culpability to result in this kind of deprivation.

KIRBY J: Do any of the begging offences carry imprisonment?

MR MERKEL: Yes, we have that in our examples. In some places, yes, and in some, no, your Honour. That is part of the disparity, I think. It is one of the examples of the disparity between jurisdictions. Your Honour Justice Kirby was right. At footnote 18 at page 26 of volume 1 the indigenous population is a percentage of the resident population. In Victoria it was .6 per cent, Northern Territory 29.8 per cent. Again, using your Honour the Chief Justice’s lamppost, of course, the Territory has a smaller population, but we still come back to 24 per cent of the prison population being indigenous.

GLEESON CJ: I think I may be wrong, but I think I have seen some figures that indicate that Western Australia is a leader in this area. I think Mr Meadows agrees.

MR MERKEL: I think at paragraph 5 I had moved on to an unusual argument around, at least in this arena, of men being discriminated against and in paragraph 6 we have the situation concerning men in not suspended sentences and the percentage in respect of men being more likely to be imprisoned than women for comparable offences is set out in paragraph 5. Paragraph 6 shows how at paragraph 28.6 the concepts of sentencing and sentencing discretion with which your Honours are well aware necessarily results in imprisonment not being a necessary measure of culpability because of other factors that go into determining whether you are there or not.

Then we have the problem of crime unreported in 7. Paragraph 8, the crime not resulting in a conviction. This was taken up very much in the Canadian cases, particularly Belczowski and Sauvé, that if you are looking to exclude from the vote people who are not worthy of it, there are many people out there in other ranges, not necessarily in the prisons, who would fall into that category. So that was the under-inclusive, over-inclusive problem.

Then the amazingly high rate, or I should not comment on that, the very high rate of successful appeals in paragraph 9. We have the New South Wales figures where appeals against conviction were 31.9 per cent successful and against severity of sentence 58.3 per cent successful. Of course, until the successful outcome they are deprived of the vote again showing the extent of arbitrariness in this area. Then in 10 we have the analysis of “crimes that are not serious”. In 2006 there were 183 serving a sentence for public order offences, 1,314 sentenced for road traffic and motor vehicle regulatory offences, including offences relating to vehicles, and most forms of road traffic, including relating to licensing, unroadworthiness, pedestrian offences and licensing offences.

We mention the glossary at 141 in the book, but those items make up 7.4 per cent. Of the remaining categories of offences, putting aside homicide, sexual offences, abduction, robbery and extortion, there is likely to be a range of seriousness within the offence: theft, illicit drug offences, property damage, offences against justice procedures, which are all explained in the glossary. All one can say is that on that whole range there is a vast difference in culpability but with the same result.

Then in paragraph 11, most prisoners are sentenced for breach of a law of a state not the Commonwealth. Then we have in September 2004 out of an average of 23,500-odd prisoners in full-time custody, 21,900 were in custody for State and Territory offences and 682 were federal prisoners - - -

GLEESON CJ: How do those statistics deal with people who are in custody for both?

MR MERKEL: I will have to take that on notice, your Honour. I cannot give your Honour an answer to that. I will have to look at that.

KIRBY J: What is your answer to the suggestion, well, this is true and there are lots of unfairnesses in the criminal justice system, but take it as a whole, which is all one can ever do in a constitutional setting, and applying a broad approach, if you take into account the fact that generally speaking in Australia today judges and magistrates are under parliamentary instruction and common law instruction to use prison as a last resort, then the fact that people go to prison is at least, prima facie, on the whole an indication that what they have done is seriously anti-social?

MR MERKEL: Your Honour, we would say that the criterion of imprisonment per se and nothing else cannot give you the conclusion of culpability of the serious offence. Seriously anti-social would exclude a large swag of the population getting into the Canadian under and over inclusive problem. What really needs to be done is to define what it is that should disentitle you from the vote and it can only be conduct of such serious culpability thus the serious offence criterion that you ought, on the social contract theory, which we do not accept and the majority in Sauvé No 2 did not accept, should result in your loss of the vote. So one can get as good an articulation of the case in favour of losing the vote in the minority judgment of four in Sauvé No 2 and as good articulation as one could put against that in the majority in that same case, but neither - - -

KIRBY J: The majority in Sauvé No 2.

MR MERKEL: In Sauvé No 2 which rejected the two - - -

KIRBY J: Did the majority say that – did they give a hint as to what would be tolerable or acceptable?

MR MERKEL: No, your Honour. The majority grasps with the central point which is criminal culpability unrelated to any electoral system and unrelated to the sentencing discretion would be difficult to justify on any proportionality analysis. Your Honour Justice Hayne mentioned to us an article which I will hand up – I think it is on our authorities – of the German approach which leaves – this is a matter of sentencing discretion to the judge so that the loss of the right can be equated to something rationally connected with the right to vote not just a moral judgment but actually saying this is part of the electoral process that a person guilty of some type of offences or some type of conduct which should result in the loss of the vote loses it.

That is a matter uniquely the role of a sentencing judge rather than an across the board one size fits all analysis. The majority articulates that far better than I could ever expand on in this Court but the minority articulates the contrary view, but central to the minority’s rationale is the notion that there was a dialogue after Sauvé No 1. Parliament took on board the decision in Sauvé No 1, came up with a compromise of two years which the Court should give deference to, having regard to the Canadian constitutional process. It was within the realm of seriousness of an offence sufficient to justify the social compact analysis which was rejected by the minority. But, there is nothing in either judgment, we would say, that our learned friends could find any comfort in that would support the arbitrariness of just being imprisoned.

Three of the four members of the minority in Sauvé No 2 were part of the nine member court in Sauvé No 1 that rejected the appeal peremptorily from Belczowski and Sauvé No 1 from the Court of Appeal in Ontario. We say the arbitrariness has been so well accepted both in – I have not the time to take your Honours to passages but I could not really develop the arguments any better than has been done in Sauvé No 2 by the majority, in Hirst by the large majority in the Grand Chamber of the European Human Rights Court. The South African Constitutional Court itself adopted the analysis in Sauvé No 2 although in that case the argument was put more on cost and practicality that they did not accept the arbitrariness that was imposed in a blanket ban.

KIRBY J: Just on Hirst, could I add to your list of things to do, if you would not mind. Lord Falconer, the Lord Chancellor, in responding to Hirst said that – I think it is in the Commonwealth’s submissions – that there are number of European states which did have exceptions for prisoners convicted. If that is anywhere conveniently available in the British materials that would be useful, and if a decision of the government in the United Kingdom on the question of what to do following Hirst comes up, because they have to reach their decision pretty soon, then I would appreciate knowing what they decide.

MR MERKEL: If we could take that on board as well, your Honour. Can I, before concluding on this aspect of our submissions, indicate to your Honours that the civil death analysis which is picked up by a number of authors provides a very helpful and persuasive answer to why we should not through this process reintroduce the civil death notion by loss of the rights of citizenship which effectively is what is being done.

Civil death is helpfully discussed in Graeme Orr’s article on “Ballotless and Behind Bars: The Denial of the Franchise to Prisoners,” which is in [1998] FedLawRw 3; 26 Federal Law Review 55. I do not want to read it, your Honours, but I will just mention it to your Honours. The civil death problem is discussed in a helpful way in this context at pages 67 and onwards. There is also a useful discussion of civil death in the article “Precarious Persons: Disenfranchising Australian Prisoners,” by Lisa Hill (2000) 35 Australian Journal of Social Issues 203. In the overseas context we would, with respect, rely upon the article your Honour Justice Hayne had referred us to by Nora Demleitner on the German model and the civil death problem is there discussed and the German response to it from page 57 onwards, but in her article there is, in effect, a discussion of a very rational basis in Germany compared to what is suggested is an irrational basis in the United States of trying to equate criminality to loss of the franchise.

GUMMOW J: But the United States system is quite different because it is not limited to the period of the punishment for the offence, is it? You are stamped for life, are you not?

MR MERKEL: It can be, your Honour. It varies from State to State. It is left essentially as a matter of State law, but in her article and also in the other articles - - -

GUMMOW J: No, no. But so far as the United States Constitution is concerned, the States are permitted to do this for life, are they not?

MR MERKEL: Yes, your Honour.

GUMMOW J: Well, our system is quite different, is it not?

MR MERKEL: Yes, it is different, your Honour, but - - -

KIRBY J: They have got a lot of the usual suspects in the list of crimes like misogyny, sodomy and so on.

GUMMOW J: Given the antecedents - - -

KIRBY J: I think there are 2 million people in prison in the United States so it is a very large and significantly black and Hispanic group that are kept out of the franchise.

MR MERKEL: Yes. Your Honour, these articles, again far more eloquently than anything I can do, and particularly the other two – the Demleitner article is very good but there are two other articles we referred to in our authorities; “The Disenfranchisement of Ex-Felons: Citizenship, Criminality and the Purity of the Ballot Box,” which is 102 Harvard Law Review 1300 and also L.H. Tribe. I am not sure whether that is the Professor Tribe your Honours had referred to. It is. The Professor Tribe your Honours had referred to had written, “One person - - -

GUMMOW J: There it is. The first sentence in this article from the Harvard Law Review:

Fifteen American states disenfranchise ex-felons for life.

MR MERKEL: Yes.

HAYNE J:

This practice, although constitutionally permissible - - -

MR MERKEL: I have no problem with that, your Honour. The point of these articles is - - -

GUMMOW J: All I am putting to you is that, given the antecedents of the Australian population in 1900 at any rate, this is a sensitive subject. There was a big debate in 1891 as to whether ex-felons should be permitted to stand for elective office and the Victorians said yes and the rest of them said no.

MR MERKEL: The Constitution allowed it to - - -

GUMMOW J: We have come from different places, as it were, intellectually to some of these other countries.

MR MERKEL: Yes, well, I would hope the antecedents would support somewhat - - -

GUMMOW J: Well, one of the things I want to know is, do you say that section 4 of the 1902 Franchise Act was invalid? Section 4, you will remember, said:

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, shall be entitled to vote –

I am not saying there is anything necessarily wrong with a living tree view of things, but I want to know whether that is central to your argument.

MR MERKEL: No, it is not, your Honour, because central to our argument is the approach that Justices McTiernan and Jacobs had adopted and have been accepted and acted upon since that we are not looking at this in a frozen in time way. We are looking at this in 2006 having regard to the evolution of the franchise since. The easiest explanation I can give of that - - -

GUMMOW J: No, you are talking about evolution.

MR MERKEL: But evolution at 1902, your Honour, was the starting point. Can I take the example by way of - - -

GUMMOW J: It remained the same until 1983, did it not?

MR MERKEL: It did, your Honour, but the starting point, we would say, is that, as members of this Court have commented on it on numerous occasions, the Constitution did not prescribe universal franchise, adult franchise.

GUMMOW J: There is another distinction I wanted to grapple with too. It is the notion between qualification and disqualification. McKinlay, I think, was talking about the expanding range of those who could be qualified. Running beside that at all times has been a notion of disqualification, as far as I can work out, and that seems to be reflected in the actual text of the Constitution.

MR MERKEL: Yes, your Honour.

GUMMOW J: It talks in some sections about disqualification, not entitled, and in others it talks about being qualified. You cannot run all these ideas together, I think.

MR MERKEL: No, your Honour. The answer to your Honour’s first question is that it is not a necessary element of our argument to say that the 1902 legislation was invalid because the franchise had evolved for the first time, that was its birth in terms of the end of the transitional period and historically in terms of that period some degree of disqualification was part of the norm in that area. The best test is that at that stage the universal adult franchise had begun but had evolved over time to a stage where, it has been said by a number of members of the Court, it cannot now be wound back.

Moving ahead, your Honour, we do say it is an element of our argument, certainly on the first pathway, but it is not an element that requires to be determined on the second or third, that disqualification involves removal from a person who is eligible by all other criteria to vote and the deprivation of that right is qualitatively a different concept than qualification.

To apply, as the Commonwealth would suggest, the same criteria to both is undermining the very purpose for which the power to qualify and a power to disqualify exists. The fact that the Constitution itself, subject to the point your Honour Justice Hayne put to me about one may import into the last part of section 30, dealt discreetly with qualification and disqualification, we would submit, takes us into the necessity to have a purposive power in respect of disqualification even if the Court rejects our purposive power approach to qualification.

HAYNE J: The premise now put to you is that the view I put of the second half of section 30 may not be right. Assume for present purposes that qualification and disqualification are treated separately in the Constitution, I understand you to have answered Justice Gummow by saying that section 4 of the 2002 Act, when enacted, was valid. Is that right?

MR MERKEL: Only if it was a qualification provision. If it was a disqualification provision it would have to be justified on the basis that we are putting before the Court at this stage.

GUMMOW J: Look at section 3 which said:

Subject to the disqualifications hereafter set out -

and that takes you to 4 so 4 was conceived as disqualifications right at the beginning.

MR MERKEL: Your Honour, then we would say consistently with our argument here, the validity of that would be tested by the implied incidental power which is the power we say is purposive and whether or not it would survive that test would suffer from a number of challenges, but certainly would be easier to justify in 1901 than in 2006, but certainly easier to justify by being at least a one-year sentence rather than just happening to be in prison on the day of the election.

HEYDON J: Was it valid in 1982?

MR MERKEL: We would have to give the same answer, your Honour, that it would be subjected to the same test 80 years further on and it would depend entirely upon the justification. It is part of our case, I should say, your Honour, picking up the approach in Canada and the approach in the article in the Minnesota Law Review, that divorcing the crime from the electoral process and just punishing a person by imposing an additional punishment, unrelated directly to conduct, would not be an example that satisfies the proportionality test at whatever level it is. That is a primary submission we put, but if one accepts that it is within the realm of deference to Parliament as to whether it is one, two or three years, then the arbitrariness is not so great as the current regime.

HAYNE J: There is a question of construction of section 4 of the 1902 Act implicit in that, and I just want to understand what you say the proper construction of that Act is. Do you have the text of section 4 of the 1902 Act before you, because you cannot answer it without it? Would a person who had been sentenced to seven days imprisonment for the offence of theft, on the assumption, reasonable I think, that theft then carried 7 or 14 years as a maximum, have been disqualified by operation of section 4 of the 1902 Act from voting if the seven days straddled election day?

MR MERKEL: Yes, it would, your Honour, and we would, with respect, say that would be an example of what would have failed the test, the test that we would propose in respect of the “punishable” and the important step made was - - -

HAYNE J: The 1902 Act operated, it seemed to me at least, by reference to classification of offences by reference to maximum sentences and then was engaged if a person was first convicted, and second, either under sentence or subject to being sentenced for an offence of that kind, where the offence was an offence “under the law of any part of the King’s dominions”. But is that right?

MR MERKEL: That is right, your Honour, and I had indicated that until 1995 the “punishable” standard applied and as we indicated, when it moved to actual sentence, at least at that stage one could say there is an arguable proportionality between culpability and loss of the right, but merely “punishable”, we would say, was never a standard that could satisfy the criteria because it was unrelated to the person’s culpability, and your Honour’s seven day example is an example of that.

GLEESON CJ: Mr Merkel, I do not know whether you have had a look at this, but we are concentrating on loss of a right and duty to vote. I suspect, although I have not checked, and I am certainly not sure, there are all sorts of other disqualifications to be found in legislation or in rules of organisations, for example, to which a person currently serving a sentence of imprisonment is subject. The reason I say that is because I have in the back of my mind that there are a whole lot of disqualifications for which a person who is bankrupt is subject. Have you checked what other forms of disqualification under various laws, people serving sentences of imprisonment are subject to?

MR MERKEL: We have not, your Honour, but we would seek that as a matter which we could also address, but one of the reasons we have not sought to embark upon that adventure, if one can take the corporations example where a conviction of an offence of dishonesty involves certain consequences for one’s right to be a director, for example, one can see alternative purposes that are protective of the public that might flow from that and also the bankruptcy example would do that, and that would take us out of the punishment as such, provided the sanction was reasonably capable of being seen to be adapted to the offence and had a purpose that was not punitive, then that would displace the punitive purpose.

GLEESON CJ: I have in mind it is a matter of status. If you think about bankruptcy, for example, if a person’s status is affected by a sequestration order, then that person comes under a whole range of disabilities.

MR MERKEL: But not as a result of conviction of a criminal offence. That is the critical key factor that takes us into punishment in our area, because the disabilities that people fall under by reason of bankruptcy or areas unrelated to the criminal justice system have their own rationale and maybe fall more precisely within what Justice Crennan had put to me as a legal disability following a particular factual situation. But once it is related to the criminal justice process, a different conceptual basis for looking at the process as punitive or penal falls into place.

GLEESON CJ: I would be interested to know, if it can conveniently be done, what other forms of disability at law a person serving a term of imprisonment is subject to?

MR MERKEL: Yes, if we can also take that on board, your Honour. There were two other articles I think, Professor Tribe’s article which is 115 Harvard Law Review 1939 and, lastly, can I hand up an article on “Civil Death” by Ewald which is reported in the Wisconsin Law Review.

KIRBY J: Is Professor Tribe’s article the one called “The Disenfranchisement of Ex-Felons”?

MR MERKEL: No, it is “One Person, No Vote: The Laws of Felon Disenfranchisement”, your Honour.

KIRBY J: Who wrote the article which we have been handed “The Disenfranchisement of Ex-Felons” which is 102 Harvard Law Review, do you know?

MR MERKEL: I will give your Honour the answer to that in a moment.

KIRBY J: It seems to be one of these very modest authors that has not put his name on it.

MR MERKEL: Yes. I am told it is printed by the Harvard Law Review without attribution.

HAYNE J: It is a student note then, is it not?

GUMMOW J: Student note.

MR MERKEL: Yes. Again, if I can give your Honour an answer to that I will. Could I move on to the last part of our submissions which deals with the point raised this morning.

KIRBY J: One element of arbitrariness is that a person might come out of prison on the following Monday and enter the society which will be governed by those in whose selection he or she has had no say and yet will be governed for the next three years or two years nine months by that government.

MR MERKEL: Yes, your Honour. The blanket prohibition is replete with examples of that kind, your Honour, which just happen to be fortuitous as to whether you are there in prison on election day. It is a fundamental vice in any regime that does not straddle elections or is unrelated to the electoral process.

The last part of our submission, your Honours, deals with the point raised by the amendment proposed of the special case involving the question of repeal. Could I hand up three sets of documents. The argument I understand the Commonwealth wishes to put is that if - - -

GLEESON CJ: Is this the matter you were going to talk to the Solicitor-General about?

MR MERKEL: Except for this, your Honour, it is, but on the basis that we would propose to put our substantive argument on it today in the time available, we are proceeding on that basis because we accept that there will be agreement on raising this issue because the issue simply is, does the repeal of the previous regime, if we succeed, fall with – as part of the amending Act falling, and therefore the previous regime is reinstated if we are successful. That is the argument being put by the Commonwealth.

GLEESON CJ: That is a common problem.

MR MERKEL: Yes, although we say there is a fairly plain solution in the present case because the complexity of the present situation was not merely an amendment but it was a true repeal with the replacement of a totally new regime and that is why I had mentioned to your Honours that what had been in place in the new regime was a right and a duty to enrol where previously you were disqualified from both enrolling and voting. This aspect of our argument takes us to analysing why the - - -

GLEESON CJ: It is a question of statutory construction, is it not? You look for an intention as to whether if the new regime was ineffective it was intended to leave the old regime, as it were, blank?

MR MERKEL: That is correct, your Honour, except here the only part of the new regime on the premise that we are now submitting on that would be ineffective is the regime that prevents prisoners from voting. The enrolment of prisoners on no view is invalid, nor are other aspects which are definitional. So, there are a number of aspects to this regime which are not connected to the invalid and severable portions and what the Commonwealth would have to contend is that there was some intention to repeal the regime. We say, no, there are structural changes and this does not fall within any of the principles that would permit the repeal to be unintentional or not an intended consequence.

We say what has happened here - and this is the part I was going to take your Honours to – the amending legislation, unlike previous legislation, for example, when the legislation changed from one year to five years and then when it changed from five years punishable to five years actual sentencing all that happened was the words of the particular section were amended. This was a totally different change. This was a structural change which had numerous amendments and the amending Act operated in three ways. Certain provisions were omitted, certain provisions were amended and certain provisions were repealed.

The repeal provisions are those that the Commonwealth would seek to reinstate but what they would be left with is something that simply cannot work as a statutory scheme because the repeal was intended to be that and it was intended to be replaced by a new regime and that the invalidity of these provisions would require Parliament to go back and restructure its regime in respect of prisoners because it is not the role of the Court to in effect rewrite the whole legislative scheme, which is what, in effect, the Commonwealth would be contending for.

But to make good that submission with three documents I wanted to hand up, one is the explanatory memorandum which helpfully sets out exactly where the amendments were made. The second is a summary of the argument and third is some submissions on the repeal cases.

GLEESON CJ: Thank you.

MR MERKEL: To make sense of this I need to ask your Honours to have before you the amending Act which is the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006. Could I first just go to endeavour to explain the statutory scheme. If your Honours go to page 6 of the explanatory memorandum which sets out Schedule 1 items 3, 4, 13 to 16, 50, 61 and 66. So they are the items in the amending statutory scheme that affected prisoners and give some explanation of the operative effect. Could I ask your Honours to have before you Schedule 1 of the Act which starts at page 5 which outlines each of the items that are amended.

So the purpose of this of course is to explain to your Honours why this case stands outside any of the previous cases where a repeal has been read as an amendment with an intent presumed by the legislature if the amendment failed the whole section would not collapse but the previous regime would stay in place. We say that for good reason that area of discourse is not able to be translated to what happened here. The explanation explains why the items are and paragraph 13 explains the previous regime.

Currently prisoners serving a sentence of three years or longer are not entitled to enrol and vote. These persons are removed from the roll by objection following receipt of information from the prison authorities. Prisoners serving a sentence of less than three years are entitled to remain enrolled or if unenrolled, apply for enrolment.

That was the previous regime.

The proposed amendments will apply such that all prisoners serving a sentence of full-time detention will not be entitled to vote, but may remain on the roll, or if unenrolled apply for enrolment. However, they will not appear on a certified list or be identifiable as prisoners on the public roll. Those serving alternative sentences such as periodic or home detention, as well as those serving a non-custodial sentence or released on parole, will still be eligible to enrol and vote.

Now, that last aspect was a change in the sense that the previous regime made it arguable both ways, that if you were in those categories you were serving a sentence. So that that was itself a change making it clear that it was only those serving a sentence of imprisonment for an offence. Then 15 says:

Item 4 inserts new subsection 4 (1A) and (1B) of the Electoral Act to provide that “sentence of imprisonment” means serving a sentence of full-time detention. Items 13 to 15 repeal paragraph 93(8)(b) and existing subsection 93(8AA) and substitute a new subsection 93(8AA) which provides that prisoners serving a sentence of full-time detention are not entitled to vote. Item 16 is an application provision which provides that the amendment made by item 15 apply to all prisoners serving a sentence of full-time detention on or after the commencement of the item.

16. Item 50 repeals and replaces section 109 of the Electoral Act –

This is the section that your Honour Justice Gummow had pointed out to me this morning –

to require the Controller-General of Prisons to forward to the AEC, at the beginning of each month, a list of:

a. persons who were convicted and began serving a sentence of full time imprisonment for any offence; and

b. persons who were released from full time custody.

17. Item 50 also specifies that within four days of the issue of the writ for an election, the Controller-General of Prisons must forward to the AEC a list of persons in the categories a. and b. above which covers the period from the last supply of such information to the date of the writ.

18. Item 61 amends subsection 208(2) to ensure that enrolled prisoners will be excluded from the certified list.

19. Item 66 is a consequential amendment –

Then going through the amending Act the items are explained, but what is clear when one goes to each of the items, for example, items 3 and 4 at page 5 are inserting new provisions, item 13 omits certain provisions, subsection 93(8AA) is repealed. Subsection 93(8)(b) was the retrospective provision, so 93(8)(b) previously operated retrospectively so that the Act in respect of the three-year sentence applied to anyone even if they were sentenced before the amending Act.

Item 15 is one of the impugned provisions. Again the previous regime was repealed and there was a new regime substituted for it. Item 16, the amendments made by item 14, apply to sentences beginning before, on or after the commencement of this regime. So this was again a retrospectivity but geared to this regime. Item 50 was a repeal of the previous section 109 and for it was substituted a new section 109. Then we go to item 61 through to 66. We have amendments by way of addition, insertions, omissions.

So one sees a very carefully drafted legislative scheme where omissions, amendments and repeals are intended to operate and precisely stipulated as such. What we have endeavoured to do in our submissions, firstly dealing with the summary of the effect of the relevant amended provisions on this question of repeal amendment argument, is to identify the critical change which I have identified to your Honours both in terms of the paragraph 3, changing from a disentitlement of three years down to just being in prison, but the amending Act goes much further because it, in repealing and replacing the prisoner disenfranchisement provisions, the amending Act makes a number of other changes to the regime that are structural and more wide reaching in nature.

The new provisions are different from those that they repealed and address different subject matters. The Act no longer operates as it formally did, which would be a disqualifying principle in terms of that which the Commonwealth contends. The relevant extracts are annexed and I have taken your Honours to it.

Then there is a summary of the significant changes. A definition of “sentence of imprisonment”, there previously was not one and I have explained to your Honours why that is so. Changing the regime from prisoners being disentitled to be enrolled and to vote to one of entitlement to be enrolled and, we would add, obliged to be enrolled, but disentitlement to vote, and we have set out, which I will not bother taking your Honours to, the previous regime.

Then in paragraph iii we have the Controller-General of Prisons’ role which is being inserted. Paragraph iv, section 96A previously entitled prisoners to be enrolled but was subject to 93. Section 96A has, therefore, expanded to deal with all prisoners, rather than those serving a sentence of a certain length. Then in section 163, 163(c)(i) provides that a member must be entitled to vote - this is a member of the House or a Senator - in order to qualify to be elected as a member. Prior to the amending Act, a person could, therefore, be qualified to be elected as a member if they were serving a sentence for an offence of less than three years, subject to section 44(ii) of the Constitution.

Therefore, prior to the amending Act, as a result of the combined effect of the Act as it previously stood and section 44(ii) of the Constitution, a person could qualify to be elected as a member if they were serving a sentence for an offence punishable by less than a year’s imprisonment. The new regime prevents a person serving a sentence of any length from standing as a Member.

Next we have d, “Requiring prisoners to enrol to vote” and that is the consequence of sections 101, 93 and 96A. I have just been reminded that I had said that the previous Act was annexed, but if I can hand that up to your Honours later. It has the Act in its previous form which was intended to be an annexure to this provision. Then at paragraph e we have “Changing the retrospective nature of the provisions”. Prior to the amending Act, section 93(8AA) provided that the prisoner disenfranchisement provision for a sentence of 3 years or more applied whether or not a person started serving a sentence on or before or after the commencement of that section.

Item 15 was a new retrospectivity applying to sentences beginning before or after the commencement of the term, but again, in respect of a different concept. The structural changes to the prisoner voting regime, particularly the provisions entitling prisoners to be enrolled, are not challenged by the plaintiff and, plainly, confer a significant entitlement. Enrolment is a significantly distinguishable feature from just disentitlement to vote. The plaintiff contends they could and should still stand. That valid part of the scheme would not be invalidated by the impugned provisions being “blue-lined”, as prisoners would be entitled to be enrolled if they fulfilled the other requirements.

However, if the impugned provisions were found to be invalid but the old provisions were reinstated, this aspect of the scheme would also be wound back. We say there is no evidence of any kind objectively or elsewhere of such a legislative intent. It was the intent, rather, to create a new prisoner enrolment regime and a new prisoner voting regime. Moreover, to wind the entire prisoner voting regime back would require the removal or amendment to numerous other provisions which are not challenged in this proceeding. These are set out in paragraph 11 and “blue-lining” the impugned provisions simply does not have that effect. Then we have set out those other provisions in paragraph 11 and then we have - - -

HAYNE J: When you speak of “blue-lining the impugned provisions” I understand you to say that 93(8AA) as introduced by Act 65 is invalid, but if you go to Act 65, that is the amendment Act of 2006, on the hypothesis that 93(8AA) is invalid for any of the reasons you have given, is any part of item 14 or item 15 in Schedule 1 left to have valid operation?

MR MERKEL: I think 93(8)(b), your Honour, goes back to the previous regime.

HAYNE J: My question was whether item 14 or item 15 of the 2006 First Schedule is in any part left with valid operation on the hypothesis you advance?

MR MERKEL: Yes, we would say those repeals remain, your Honour.

HAYNE J: So, for example, in item 15, item 15 is valid down to the end of the words “the subsection”?

GUMMOW J: And Item 14, you would say is valid, I think.

HAYNE J: I just want to understand how you say it is working.

MR MERKEL: Basically, your Honour, the invalid provision is item 15, as from the word “substitute”.

HAYNE J: Yes.

MR MERKEL: As from the word “substitute”, yes, your Honour.

HAYNE J: I just want to understand what the submission is.

MR MERKEL: Yes, that is correct, your Honour.

GUMMOW J: What about 13 and 14?

MR MERKEL: Yes, that would be on the basis of just the substituted paragraph (8AA), your Honour. I should say that the example that would be supported by the cases would be if what had occurred was that which had occurred previously, namely, three years sentence had been changed to a sentence of imprisonment and that amendment had fallen within the section then that may have fallen much more in line with the case law on this subject, but here, there is a totally new regime applicable, a regime that simply would not work under the old regime because the old regime was entirely premised upon no enrolment and no voting.

The new regime came forward with a totally different principle and a totally different structure. We say that the impugned provisions, if we are successful, are those solely related to the insertion in the Act of the prisoner disenfranchisement and there is not to be discerned anything in the Act or in the legislative scheme that would suggest a legislative intent that the old regime be reinstated. What we have endeavoured to do in the time available is - - -

GUMMOW J: But is not the practical consequence of that that if you were to succeed and (8AA) is invalid the net result would be that from that moment on – from the moment of that decision onwards and until and unless the Parliament then put in a new regime there would be no disqualification for persons serving sentences.

MR MERKEL: Yes, your Honour. We would say that is the consequence the cases have always accepted as applicable to invalidity, unless one can discern from the amending legislation an amendment that if invalid would leave intact the previous regime.

KIRBY J: Is that what happened after Sauvé No 1 in Canada, do you know, because this sounds to me as though you are trying to get us to do a Sauvé No 1 and a Sauvé No 2 all wrapped up in one. At least one view might be that this is a very serious matter that Parliament would not have imputed to it a purpose of having a gap, that Parliament might not be able to be convened between the time of the Court’s order and an election, that therefore one would infer that Parliament having the purpose to completely disenfranchise prisoners, if that fell by a process worked out in Australia similar to Sauvé No 1, that you would then strike down the legislation and all of it that endeavoured to do that, but on the assumption that Parliament did not intend there to be a gap and that the old regime operates in the meantime and if you do not like that then you have to bring a Sauvé No 2.

MR MERKEL: Your Honour, the answer to the first part of your Honour’s question hopefully is in our distillation of Silk Brothers in paragraph 3 of the submissions on repeal in amendment. We cite Silk Brothers as authority for the proposition. If the language of Parliament is unequivocal, eg, there is a repeal, the provision should be repealed even if the expectation as to the condition of the law after such repeal may be disappointed in whole or in part. To do otherwise would lead to speculation as to the probable but unexpressed condition to the operation of words of repeal that are unambiguous. But what we have sought to do is to - - -

KIRBY J: The problem with that – I mean I do not recall the exact circumstances of that case - it might well be applicable there - but in this case we are dealing with a very important matter going to the very way our polity operates and for that matter you have to have rolls, people on rolls and a whole range of things and the vice that you are putting before us is a vice, at least arguably, that would attack the amending Act. Therefore, there is no repeal because it is – the purpose of the amending Act is to disenfranchise prisoners and Parliament did not have the power to do that.

MR MERKEL: Your Honour, the most obvious example of where, if the Act fell, the repeal would be treated as an amendment, would be, for example, where the five years was reduced to three years. Parliament intended a harsher regime but not no regime of any kind. It did not tamper with the structure of how it was to work and impose a new structure. That would be an example where the cases might authorise, even though the word “repeal”, but re-enactment of the same proposal but with a different aspect to it, an intent that the old regime be replaced if there is invalidity - - -

KIRBY J: I understand that. Courts deal with matters. They deal with the matter that is tendered. Here the matter that is tendered is an attack on the Act in its present form. In Sauvé they had to take two steps and it may be that in this matter you have to take two steps to attack what residue is then left, depending on the way members of the Court decide and reason to their conclusions.

MR MERKEL: That is right, your Honour, but if I can just take your Honour briefly to our submissions on repeal and amendment, what we have tried to deal with is that the starting point is not so much that the courts try and leave intact what might be manageable and impute to Parliament an intent that the court, in effect, do its job which is to rewrite the Act and rewrite the scheme, which is essentially what is being sought here. The starting point is a presumption that where the legislature repeals an Act, subject to the relevant Interpretation Act and to anything specially by necessary implication otherwise provided, the legislature intended for the Act to no longer be operative and we say that is very clear in the present case.

KIRBY J: That is assuming the repeal Act is valid. If it is constitutionally flawed, if it is invalid, if it does not have a source in the Constitution, it is not an Act. It is as if it was not there.

MR MERKEL: No, but if the repeal is invalid we never get to the point because the repeal has no effect, but if the repeal is valid, as it undoubtedly is - - -

KIRBY J: No, the appeal is invalid for the reasons – this is on the hypothesis you succeed on one of your arguments – then the repeal Act is flawed and it never effected the complete disenfranchisement which was the purpose of the repealing Act and therefore you are left with the unrepealed Act in its previous form.

MR MERKEL: That is precisely what we say the cases do not authorise, your Honour. First of all your Honour said the repealed Act. What is made clear by Justice Windeyer in this context in Mathieson v Burton is that this is to be approached on each part of the enactment being itself an enactment for this purpose. So it is not looking at the whole of the amending Act and asking the amending Act to be treated as a whole globally if part of it, therefore it all goes, unless it is all inextricably interlinked or interwoven which this is not.

HEYDON J: Is not item 14 a single enactment on that reasoning?

MR MERKEL: Yes.

HEYDON J: If it is a single enactment, does it not all go down with (8AA)?

MR MERKEL: Only the invalid part does, your Honour. We would say that the repeal does not go down.

GUMMOW J: That is the question.

MR MERKEL: We say that has to be answered by reference to the totality of the scheme, your Honour. The repeal is intended because this was enacted as part of the scheme. If the entirety of the amending Act were item 15, then we would understand the force of the argument that would be put that the amendment was really to impose no more than a harsher regime. But item 15 is part of a total scheme which was to have a new scheme in relation to prisoners replacing the old, not just in respect of the sentencing disqualification but to enfranchise them in terms of enrolment but not voting. A whole process was put into place to give effect to that.

So that if item 15 itself was the totality of the scheme or if taking this whole amending Act, all that related to prisoners in it was item 15, therefore only part of it would be an enactment, then item 15 may go. But because this is interwoven with the totality of the scheme in respect of prisoners, and this is not a case where all of the items relating to prisoners stand or fall on this point, we say running the repeal as ineffective simply does not work and is not met by the principles that we have sought to summarise in that hand-up document that we have given to your Honours, that this is not a situation or an area of discourse in the law where the Court is asked, in effect, to rewrite the legislation, to make it work the way Parliament might have intended had it known that what it was doing was invalid.

GUMMOW J: Am I right in taking your case to be this, that any legislative regime which disentitles voting for those serving a sentence of imprisonment is invalid? It does not matter whether it says a sentence for one year, two years, three years, five years, whatever, it is any period, it is invalid.

MR MERKEL: Yes, your Honour.

GUMMOW J: If you do not succeed in that proposition, what happens? In other words, you do not seem to have an intermediate position and given the situation of your client I can understand that.

MR MERKEL: No, your Honour. That is our ultimate position but we take it in steps. The first step is that the current regime is invalid for the reasons we have postulated. It is no part of our analysis in making good that argument to have to identify what would be the situation under the three or five-year regime because the arbitrariness – and again it depends which pathway one goes on – but the arbitrariness of a blanket disenfranchisement which we have addressed in our submissions stands in a distinct category which fails to meet any of the tests or criteria that we have set out.

Once we get into the three-year and five-year regime, which we have not sought to address because it only comes up, in a sense, in this fallback position, but once we get to the three-year and five-year regime one gets into a different proportionality argument and one gets into a different factual context as to how it works in practice which we have not addressed because our special case has addressed - - -

GUMMOW J: Am I hearing you say, “I’d have to have another case about that because I would have other material”?

MR MERKEL: No. This comes to what we were hoping to deal with overnight.

GUMMOW J: Which gets back to what Justice Kirby was putting to you.

MR MERKEL: Yes.

KIRBY J: You see, it is at least arguable, for some of the reasons Justice Gummow raised earlier, that if you look at the scheme of the Constitution and the provision of a particular disqualification for being elected that it is paradoxical then that you could be elected but that you cannot vote and therefore one might see within the Constitution a one-year provision or you might get into the Canadian situation, well, two years is not enough, but three or five years, maybe, or it cannot be just that, it has to be some other criterion but it is all being served up in this particular case but there are very big questions here and it affects just not your client, your client is in a sense the one who is bringing it, but lots of other people whose fate hangs on the outcome of the matter.

MR MERKEL: Yes. Your Honour, can I put it in this way so there is no misunderstanding of our position. We came here entirely to address the current statutory regime which was blanket disqualification. Our special case was geared to that question, our arguments have been devoted to that question and our whole purposive proportionality punishment approach is geared to that question. We accept that the questions sought to be raised by the Commonwealth, well, if we are successful does that mean we retreat back to the three year regime, is one that is inherent in the questions that are asked in terms of what relief may ultimately follow and for that reason we are agreeable to having that issue before this Court because we see it as essential to have to resolve.

We have not addressed our argument to the three-year regime. What we would be preposing and seeking to agree on is that we would then seek to address such facts, in terms of statistics and other matters that would be relevant to the three-year regime - - -

GLEESON CJ: In this case.

MR MERKEL: In this case, your Honour, but not for a further hearing, although again we are subject to what the Court may do in this regard. But what we want to say is that at this stage we can say that it is a premise that if we fail on our repeal amendment argument and the three-year regime is reinstated, the arguments we have put on disqualification, namely, moving backwards and moving from five years to three years requires some justification in terms of the disqualification power of which there is none, but we would put that argument in writing to the Court. We would then say that the three-year regime is invalid and save for the punishment argument, that may take us back to the five-year regime which would then be - - -

GLEESON CJ: Do not assume that you and the Solicitor-General will be able to agree between yourselves on things that will be dealt with in writing or that there will be anything left uncompleted at the conclusion of the present argument. Have you noticed the second-last paragraph of the submissions of the first defendant, paragraph 36?

MR MERKEL: Yes, your Honour, we are conscious of that matter, your Honour, and we are entirely in the hands of the Court. Unfortunately, as I had noted to your Honour Justice Hayne when this matter came on at the most recent directions hearing, the Commonwealth had never put a position prior, in effect, till Friday that it would be contending that the repeal would fall with invalidity if we were successful.

HAYNE J: I think I made the rather tart response then, Mr Merkel, which I would repeat now, “It is your action”.

MR MERKEL: Yes, I accept that, your Honour and rather than embark upon whether it is a problem we must contend with or not, we agree that it requires resolution but we are in the hands of the Court as to how and when that matter will be resolved. We are conscious of the fact that the Court has accommodated us in every possible way to enable this matter to be brought on, but again we are dealing with a regime that was only recently passed
and we are necessarily subject to the political process and any other processes we have to deal with. We will do the best we can.

GLEESON CJ: Anyway, just do not assume that the question of whether this case is going to end up part-heard is a matter for agreement between you and the second defendant.

MR MERKEL: No, we would never be so rash, your Honour.

GLEESON CJ: We will adjourn until 10.15 tomorrow.

MR BENNETT: Before your Honour does that, it is not clear to me if my learned friend has finished. If he has not - - -

GLEESON CJ: He has not, I think. I have not heard him say he was finished.

MR BENNETT: That is what concerned me, your Honour. In that case, I ask the Court to take one of three steps. One is to withdraw or modify the indication given about Thursday, the second alternative is to put my learned friend under a very strict, say, 10 minute time limit for the morning, the third is to start early in the morning. I would ask your Honour to take one of those three steps, otherwise we will suffer in terms of the proportion of time.

GLEESON CJ: I think I will just ask a question. How long do you expect to require to complete your argument, Mr Merkel?

MR MERKEL: Your Honour, on the case as currently framed, we have completed our argument. That would complete our argument, subject to if there is any short comment – I mean very short – that we would make in the morning as a result of what has occurred today, but we have completed our argument, your Honour.

GLEESON CJ: We will adjourn until 10 o’clock tomorrow morning.

AT 4.24 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 13 JUNE 2007