'The people' no longer means all Australians

This piece was first published in The Age

The quality of a democracy can be gauged by the extent to which its electoral process is inclusive of maligned sectors of society. Democracy may be inherently majoritarian in nature, but if its core concept is that government derives legitimacy from the consent of its people, that legitimacy depends on every constituent, however peripheral or unsavoury, having the opportunity to speak through the ballot box. A democracy with iniquitous electoral laws is unworthy of the name.

That is why the bill amending our electoral laws warrants serious scrutiny. It does substantial philosophical damage to our conceptions of democracy, particularly in its proposal that all prisoners be stripped of the right to vote.

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

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

This fact is not avoided by the argument, put forward in recent parliamentary debates by Liberal backbencher Michael Johnson, that "people who commit serious offences against society, against the community, should forfeit their right to vote". Their transgressions do not render such people devoid of all rights. If we care about human rights - and the right to vote is one - then any derogation must be demonstrably necessary. Thus the state may deprive criminals of their liberty, but it cannot torture them. Similarly, the state may deprive us of a right to vote, but, according to the UN High Commissioner, only to the extent "necessary in a democratic society" for a public purpose.

Nothing about this amendment is necessary. Influential courts across three continents have said as much when considering similar legislation.

It will not, as some have suggested, deter the commission of crime, as though the prospect of imprisonment is less threatening. Nor is it necessary to prevent prisoners from becoming a lobby group as the Festival of Light argued before a Senate committee.

There is no evidence to support any of these rationalisations, which probably explains why, apart from those of the Festival of Light and the Liberal Party itself, every submission to the Senate vehemently opposed the bill. One of the few things it will achieve is to violate Australia's human rights obligations.

But then, Abetz emphatically doesn't care. "The reliance on international treaties is usually the last resort of those that can't argue their case domestically," he retorts. Apparently we live in a nation where the idea of democracy is a rhetorical hook, yet lamentably, human rights are not. In that case, Abetz might consider how comfortably this proposal sits with our own constitutional requirement that the government is elected by "the people". True, once upon a time "the people" did not include women, or Aborigines, but constitutional lawyers have long accepted that the concept would evolve with community standards. Are we prepared to concede those standards hold that prisoners are not people? How democratic are we?

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

Waleed Aly is a secondee solicitor at the Human Rights Law Resource Centre.