On 3 September 2004, in the County Court of Victoria, I, Vickie Lee Roach, Indigenous woman, mother of one child and the daughter of an aging mother, was sentenced to ‘death’. Okay – so I won’t be ‘hanged by the neck until dead’, or strapped to a trolley and fed an intravenous cocktail of lethal drugs. I won’t face the gas chamber, nor blindly await a volley of rifle shots with my back against a wall. The truth is, under the law as it stood that year, I and thousands of other prisoners, faced a death sentence of a different kind; in attracting a prison sentence of 3 years or more, we also incurred the additional penalty of forfeiture of our civil rights, expressly, the right to vote.
Approximately 11,000 Australians thus became non-citizens, invisible to society and excluded from participating in almost every aspect of that society – including the right to participate in the electoral process. We were in effect, sentenced to a kind of ‘civil death’.
Civil death, or ‘civiliter mortuus’, can be traced from ancient Roman and Greek practices, through medieval times in continental Europe, to feudal England and the common law doctrines of ‘attainder’ and ‘corruption of the blood’ whereby, at law, the convicted person was, in effect, pronounced ‘dead’.
From feudal England, to convict settlement of Australia, and surviving in various forums to the present day, this additional punishment twice removes from society those who have breached the ‘social contract’ – in the first instance by their physical removal from the community by their imprisonment, and in the second instance, by the symbolic removal of their right to participate in public life.
Our current Government appears to hold firm to the colonial concept of a convicted person being somehow ‘tainted’. John Howard’s legislation of August 2006 disenfranchising all sentenced prisoners relied on, and was justified by the supposition, that anyone who had breached the social contract was an ‘undesirable element of society’ whose participation in the electoral process would undermine the integrity of the electoral system.
My view, along with that of many civil libertarians, human rights advocates and people of good conscience, is that the disenfranchisement of prisoners has the directly opposite effect. Far from ‘supporting civic responsibility’, denying us this right serves only to exclude us from the democratic process and further alienate us from society. Exclusion of this nature ensures that the exiting prisoner (and we will all be released eventually, some sooner rather than later) feels no connection, commitment or loyalty to his or her community and will therefore not feel bound to respect its laws or social mores.
For Aboriginal people in particular (who are unarguably the most disenfranchised and marginalised people in the country), this legislation had even deeper significance. With Indigenous imprisonment rates continuing to rise and Indigenous people over 15 times more likely to be imprisoned than non-Indigenous people and comprising up to 24% of Australia’s prison population, the Howard Government’s decision to ban prisoners from voting served only to further marginalise an already over marginalised group of society. In doing so, it effectively interfered with the entire group’s ability to participate in Australia’s representative democracy.
In March 2007 I filed a constitutional challenge to the legislation. I wanted to take this argument to the High Court because I believed Howard’s legislation was inherently wrong. Not only was it unconstitutional and undemocratic, it was also unprincipled, ill-considered and nonsensical. It was also a gross erosion of human rights that threatened to reduce democracy to autocracy, and supplant the concept of a representative government elected ‘by the people’ with an unrecognisably undemocratic electoral process that could only result in an unrepresentative government, elected by only those people the government deemed ‘worthy’.
Evidently the full bench of the High Court in Canberra agreed. On 30 August 2007 in a 4-2 majority decision, the High Court of Australia held that the Constitution does indeed enshrine the right to vote and, moreover, that this right may only be limited for a ‘substantial reason’ and in a way that is ‘appropriate and adapted’ to that reason. Their important, landmark decision reversed the Federal Government’s 2006 legislation and returned to its previous position of disenfranchising only those prisoners serving sentences of 3 years or more. For 8,000 prisoners around the country, the right to political communication and participation, and the opportunity to say, ‘I belong, and I matter’, is once again a reality.
Phillip Lynch from the Human Rights Law Resource Centre (part of the legal team led by Ron Merkel QC and Allens Arthur Robinson), said the decision was a ‘victory for representative democracy, accountable government, the rule of law and fundamental human rights’.
Personally, I feel a huge sense of vindication. Even though the decision hasn’t affected my own eligibility to vote as I am serving more than 3 years, I feel privileged to have been able to stand up for something I believe in and had that belief ratified by no less than the highest court in the land.
I remain ineligible to vote, but ‘civiliter mortuus’? – Not me!
Vickie Roach is an Indigenous woman who is imprisoned at the Dame Phyllis Frost Centre in Melbourne. While a prisoner, she has completed a Master of Professional Writing and is now undertaking a PhD on Indigenous history and the Stolen Generations. She is a peer educator in prison, which involves her providing advice, assistance and counselling to other prisoners. On 30 August 2007, the High Court of Australia upheld Vickie’s challenge to the constitutional validity of legislation which prohibited all sentenced prisoners from voting. In challenging the prisoner disenfranchisement legislation, Vickie stood up not just for the human rights of prisoners and Aboriginal Australians (who constitute almost ¼ of the prison population), but the interests of the entire community in representative democracy and fundamental human rights. She did so with courage, integrity and commitment, and at risk of being personally subject to a substantial adverse costs order if unsuccessful.