Her Majesty’s pleasure

On my list of concerns about the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006, the removal of the vote from prisoners serving full-time detention ranked pretty low. Nonetheless, the measure’s disproportionate impact on the Aboriginal population gave it an unpleasant edge, so there is good reason to be pleased with the High Court’s decision to strike it down (Brian Costar of the Swinburne University of Technology offers a more sophisticated critique of its jurisprudential shortcomings). The case was brought by Vickie Lee Roach, an Aboriginal woman serving a six-year sentence in Victoria for burglary and recklessly causing serious injury, with the support of former Federal Court judge Ron Merkel. The reasons for the court’s decision will not be published for several months, but are known to revolve around the constitution’s requirement that MPs be “chosen directly by the people”, and to have been influenced by similar rulings in Canada and South Africa.

Women inmates debate the merits of the single transferable vote

For most of the federal parliament’s history, prisoners were disqualified from voting if serving an offence punishable by imprisonment for one year or longer. This was eventually relaxed to five years or longer in 1983, then to apply only to prisoners serving terms of five years or longer in 1995. The Howard government first attempted to introduce a blanket ban before the 2004 election, but were only able to persuade the Senate to reduce the required sentence from five years to three years. A few years earlier, Poll Bludger regular Graeme Orr calculated that the government’s proposal would have increased the number of prisoners affected from around 11,000 to 17,875; my own back-of-an-envelope calculation suggests the Senate’s amendment reduced this to about 14,500 (Graeme will no doubt correct me if I am wrong). Then came what Nationals Senator Ron Boswell unwisely but accurately described as “open slather” following the Coalition’s Senate election triumph in 2004. The effect of the High Court ruling is to restore the previously existing three-year sentence limit.

UPDATE: A good assessment of the judgement and the whole “chosen directly by the people” thorny potato from Ken Parish at Club Troppo.

Author: William Bowe

William Bowe is a Perth-based election analyst and occasional teacher of political science. His blog, The Poll Bludger, has existed in one form or another since 2004, and is one of the most heavily trafficked websites on Australian politics.

69 comments on “Her Majesty’s pleasure”

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  1. [I have a problem with sudden large dips and rises as though a group of the public are acting like a flock of birds switching directions with no discernable reason. I don’t buy the economic concern reason considering the other polls recently.]

    I was wrong, this isn’t a big change at all. Drop By correctly points out that the PREVIOUS Morgan Face to Face taken 2 weeks ago must’ve been a rogue. The reseult of this poll is basically the same as the F2F 4 weeks ago.

  2. Pretty much the same as Newspoll 17-19 August.

    “This latest face-to-face Morgan Poll on Federal voting intention was conducted on the weekends of August 18/19 & 25/26, 2007”

    91 seats to Labor 🙂

  3. gusface (46)


    More seriously, just how over the top hysterical was the ‘drug pack’?

    And thanks to Ollie (2) for that detailed info.

  4. Morgan is all over the shop.
    One week ago he had 60/40 and today he has 54.5/44.5.
    One week ago was a phone poll with a sample of 500
    Today it is a face to face poll of about 1300.

    So what explains the change from the same polling company from within a week? Last week was a rogue poll and this week is not?
    If last week was rogue than Galaxy was rogue as well. Maybe all polls since January have been rogue?

    Whathever the explanation, it is certainly is not the subprime financial problems because this has been feeding through for nearly a month now. It has probably more to do with sample sizes and methodology used which actually question the credility of Morgan polling.

    Roy Morgan might or might not be a credible pollster but certainly his conclusions are totally speculative and pulled out of hot air!

  5. Interesting.
    We had a sudden drop in Morgan F2F on a consistent year for no discernable reason for two polls running, then a return to the yearly average then a sudden drop again. All the while the Morgan phone polls confirm the higher yearly average.

    Appears to me that all the polls have been consistent within themselves this year on the Govt’s TPP. So I dont understand the sudden dip in the Morgan F2F trend which is not reflected anywhere else unless they have changed something.

    Morgan Govt TPP
    Phone…….F2F……..Appr dt……….Newspoll….. ACN…………Glxy
    40…………41.5………June 13/14……40………….43
    41…………41…………July 4/5………..44 ………………………….41
    42.5………45…………July 11/12……………………42
    41…………45.5………July 25/26…….45…………………………..41
    41.5………41.5………Aug 8/9………44
    40…………46…………Aug 18/26……45…………………………..39

  6. Two other polls have shown Labor improving on economic credentials. We have a poll showing Austsralians confident about the future.

    I’m looking for a reason for a sudden dip and can’t find one unless a big group all decided at the same time to change their vote because they simply felt like it.

  7. Patrick #38
    a)It is a little hard to point to fraud if you don’t have a system that allows its detection. There were allegations by Ehrmann after her conviction. She was found guilty of fraudulent enrolment in order to branch stack but made accusations that their was a widespread malpractice with regard to elections.

    b)It is human nature to leave things to the last minute, not human nature to wait until an election is called. Tax returns, bills and school shoes all fall into this category. If the school term starts in the last week of January instead of the first week of February we don’t see masses of barefoot children.

    c)If the majority excluded are those turning 18, then they are more likely to be labor voters. If the majority excluded are aspirational voters who have bought into a north shore suburb then they are likely to be coalition.

    Crispy #42
    It does not follow that if on average people move every seven years …… they are disenfranchised because they didn’t update their residential status.

    The last few elections I have had the details checked. A nice AEC officer comes around and verifies that those who are claiming to live at my address do actually live here. I’m sure I was required to provide proof of identity when first enrolling. So fraud requires a number of people working in concert.

    Regrettably the AEC does not publish figures on
    -how many people are identified as incorrectly enrolled from this process
    -how many of those were never resident at the address

  8. ( I have a problem with sudden large dips and rises )

    I’ve got to agree. Either the last one was rogue or this one is. The public doesn’t swap votes in huge numbers just for the hell of it. There has to be a cause. One of these polls is wrong.

    Either way Labor still looks strong but this has got to give encouragement to the Libs. They are desperate for good news.

  9. Some comments:

    1. Not to in any way to excuse the disgraceful practice of eliminating from the Florida roll those who shared names with prison inmates, but of the 100,000 odd Florida voters who voted for Ralph Nader in the 2000 presidential election, you’d think there’d be a good proportion who would be regretting it by now… Shows the importance of applying your vote sensibly and within the confines of the electoral system…

    2. The challenge to the legislation in Roach v Electoral Commissioner was to the amendments to that Act in 2006 – see quite early in the oral submissions of Ron Merkel QC – the challenge was to ss 93 (8AA), 208(2)(c) and 221(3).


    The amending 2006 Act in question is here:


    3. Given that the challenge was to the amendments to the Commonwealth Electoral Act, a successful challenge would render those amendments invalid. It would not usually affect the “underlying” legislation.

    4. Even if the principle the High Court ultimately distills may be applicable to all prisoners, the High Court would usually not decide the issue unless it arose on the facts before it.

    5. The traditional common “declaratory” law theory is that a statute found to be unconstitutional was always unconstitutional. There has been some movement away from this. Revenue statutes are in any event a special case!

    6. The major difference between the US Supreme Court and our High Court is the scope that the US Bill of Rights gives to the US Court to consider the most hot of hot potatoes, like flag burning, abortion and fertility rights, stem cells, etc, seemingly every year or so. In that environment the political and philosophical outlook of the members of the court are significant. Whatever you think of the judges of our High Court, their political and philosophical outlook (as opposed to their “black letter” legal outlook) is thankfully less obviously relevant than in the US.

  10. In 1977 as a reporter on a WA country newspaper, I covered the story of a local guy who had not voted at the previous State election. He was fined, but refused to pay and the local Stipendiary Magistrate sent him to gaol for a weekend -the weekend of the Federal election! My understanding is that at that time, no prisoners were allowed the vote, so this electoral rebel made his point twice.

  11. Of the 400 odd thousand that changed their enrolments between the issuing of the writs and the close of rolls about 70,000 were new enrolments and this is the estimate of how many will lose their chance to vote this year.

    The argument that the changes are being made to increase the integrity of the rolls is like the Bear Patrol from that old Simpsons episode, it is an expensive and dramatic solution to a problem that doesn’t exist.

    The reason that the coalition is doing it though is because the coalition have for a very long time supported voluntary voting, they believe that if you are so apathetic about the government that you have to be forced to vote then you are unlikely to make a reasoned decision or add to Australia’s democratic process.

    By changing the close of the rolls the government is saying if you are too lazy to enrol before the election is called, you don’t care enough to deserve a vote.

    Its not so much that the government want to disenfranchise young people as much as it is the Lib’s can’t stand the idea of losing because of people who don’t really care.

  12. One of the many points in the constitution that I find confusing is the issue of the senate writs.These can be issued by the state governors, I believe, any time after the 30 June preceeding the expiry of the term of the retiring senators except in the case of a dd when they must be issued within 10 days of the Governor-general’s proclamation.

    This was of importance in 1974 when the Queensland Governor (on the advice of Joh) issued the writ for the due 1/2 senate election earlier than expected and before Senator Gair’s resignation took effect. Gair’s seat was therefore not up for election and Joh could have nominated a conservative to fill the seat which Whitlam expected to gain at the election. If my memory is correct, Billy Sneddon was “so enraged by the Gair affair” that he threatened to hold up supply and Gough called his bluff by calling a double dissolution. In his words “the Governor-General’s writ overcomes all others”

    My point is that with ALP governments in place in all states, it is theoretically possibly for them to issue the writs for the senate election in their state at a time of political advantage without any reference to the Federal government. I don’t know how the AEC would respond.

    I can’t see any state doing this but as the Australian people have at least twice rejected referendums to ensure the joint holding of senate and house elections, it remains an anomoly in the system.

  13. 65 Snow “By changing the close of the rolls the government is saying if you are too lazy to enrol before the election is called, you don’t care enough to deserve a vote.”

    So if I don’t try to book a beach house before December it means I don’t really want to go on holidays? I don’t think so. Some allowance has to be made for human nature – we leave all sorts of stuff until the last minute.

  14. re AEC Deadlines and Enrolment Conditions

    Please understand ONLY in context of all of the conditions for enrolment and with reference to the official AEC information. Direct quotes are attributed, otherwise I paraphrase only.

    As gleaned from AEC Fact Sheet and Enrolment Form June 2007

    Deadlines occur after the issue of the writs.

    ‘For recent federal elections, the writs have been issued between one and four days after the PM announces the election date’.

    ‘..enrolment form must be ..received by the AEC before the close of thelectoral rolls’.

    Enrolling for first time or re-enrolling – 8pm on same day writs are issued

    On the roll, but out of date address or name – 8pm three working days after the day the writs are issued

    Two excepted groups ‘turning 18’ ‘gaining citizenship’ 8pm three working days after the day the writs are issued.

    The excepted groups are for those who will experience this event between the writs and the election.

    NOTE: 17 year olds may still enrol before the election is called.

    Non possession of an Australian Driver’s License (inter alia) requires other ID, to be sighted and form witnessed by authorised person.

    Form must be a signed original.

    Obviously, this means posting lag time must be taken into account.

    Hope this helps posters.

  15. I await the ALP’s statement on prisoner voting… Simple matter of past principle. You’d think.

    As for this being a sign of a conservative, parliament-can-do-what-it-likes court turning soft. I doubt it.

    Whilst the decision was unexpected, the Abetz legislation put the court in a pincer. Could they really say ‘there’s no right to vote in the Constitution – politicians can play with it as they like’ ? The next option was to say ‘any period in gaol, however minor, excludes you from ‘the people”. They could have done that, but it seems they’ve simply followed the European courts in a kind of compromise.

  16. Thanks for the positive feedback on PORK BARRELS EPISODE FIVE people.

    That Morgan poll result pulling back to 54.5 for Labor is a sober reminder that this election aint over yet and no surprises there for the more balanced thinkers here { I DONT wanna be balanced: damn it , lol}

  17. Oakeshott Country,

    Joh nominated Jim Judge of the DLP to fill Vince Gair’s seat in 1974, bu the double dissolution election prevented his taking it up.

  18. OLLIE

    I am from Mayo and splashed on the front cover of the local rag is a huge picture of downer authorising some new infrestructure. He might feel threatened?

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