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cAse sTudy – rOAcH v AusTrAliAn elecTOrAl cOmmissiOn the 2004 and 2006 prisoner disenfranchisement legislation was challenged in the australian high court in June 2007 by Vickie Lee Roach an indigenous woman prisoner in Victoria. 89 Vickie Roach has completed a Masters degree in prison, is hoping to start a phD and is active in prison based education programs and in mentoring other prisoners over political and governmental issues affecting them. in an open letter read on aBc Radio national’s The Law Report she wrote: the one inescapable fact is that at any given time there are approximately 20,000 prisoners in this country, and 99% of these will be released eventually. For most of us, re-entry to society will come sooner rather than later. For many, during the term of whichever government will be elected later this year. excluding us from the democratic process while we are in prison, however short our stay might be, implies we have forfeited our right to political participation, not just for the duration of our term of imprisonment, but for however long it might be until any subsequent election. i believe this serves only to further alienate us from society and ensures that the exiting prisoner feels no connection, commitment, or loyalty to his or her community, and may therefore not feel bound to respect its laws or social mores. the human Rights Resource centre based in Melbourne organised a team of pro bono lawyers to work on the case. 90 the two key arguments were: 1. that the 2006 amendments disenfranchising all serving prisoners were incompatible with sections 7 and 24 of the australian constitution which provides that the senate and house of Representatives shall be directly chosen ‘by the people’; and 2. that the disenfranchising provisions were invalid as contrary to either the implied freedom of political communication, or the freedom of participation, association and communication implied in the constitution. the high court by majority upheld Vickie Roach’s case on the first argument, without deciding the second. the court held that the 2004 act, with its prisoner voting disqualification limited to prisoners serving sentences of three years or more, was valid. chief Justice gleeson argued that: ‘the words of ss 7 and 24, because of changed historical circumstances including legislative history, have come to be a constitutional protection of the right to vote. that, however, leaves open for debate the nature and extent of the exceptions. the constitution leaves it to parliament to define those exceptions, but its power to do so is not unconstrained.’ section 44 of the constitution, which deals with the disqualification of senators and members of the house of Representatives, disqualifies a person convicted and under sentence for ‘one year or longer’. the prisoner disenfranchisement legislation attempted to impose stricter standards on the eligibility to be a voter than the constitution imposes upon eligibility to be a politician. in nsW, short term sentences account for some 65% of all prison sentences in one year. also, other options such as non-custodial sentences are limited in rural and regional areas. so, according to chief Justice gleeson, using the fact of imprisonment as the criterion for disqualification from voting, ‘becomes arbitrary’. (para 23) While the Roach case was an important victory for prisoners and their supporters, the decision is limited. the argument based on the implied freedom of participation, association and communication was not decided 91 and the 2004 legislation disenfranchising those serving sentences of three years or more was upheld. this meant that the plaintiff, Vickie Lee Roach, whose sentence was five years, was still unable to vote at the october 2007 federal election. 89. Roach v Electoral Commission [2007] HCA 43, 26 September 2007; available at http://www.austlii.edu.au/au/cases/cth/HCA/2007/43.html 90. For an account of the hearing see D Brown, ‘The Disenfranchisement of Prisoners: Roach v Electoral Commission & Anor – modernity v feudalism’ 32:3 Alternative Law Journal September 2007,132-7. 91. On the importance more generally of listening to the voices of prisoners see D Brown, ‘Giving Voice: The Prisoner and Discursive Citizenship’ in The Critical Criminology Companion, T Anthony and C Cunneen (eds) Hawkins Press: Sydney 2008, pp 228-239. prisoners as citizens 21
Imprisonment in NSW 92 lAWs And pOlicies Listed below are some of the main pieces of legislation that currently apply to prisoners and imprisonment in NSW which can be accessed from the NSW Parliamentary Counsel’s Office website at www.legislation.nsw.gov.au Note: For more critical accounts of how some of these various legal regulations apply in practice: see Sydney Morning Herald Special Investigation, ‘Captive State’, SMH, 6-11 December 2008. acts > Crimes (Administration of Sentences) Act 1999 (NSW) – includes general obligations of inmates, circumstances for segregation or protective custody, management of juvenile inmates, circumstances for transfers. > Crimes (Sentencing Procedure) Act 1999 (NSW) – covers areas such as the purposes of sentencing and the types of penalties that may be imposed (custodial and non-custodial), fines, sentencing procedures, victim impact statements, and sentencing guidelines. > Summary Offences Act 1988 (NSW) – sets out many offences which may lead to imprisonment; they are generally considered less serious offences and can be dealt with by a local court. > Crimes Act 1900 (NSW) – deals with the more serious offences including homicide, assault, sexual assault, kidnapping, explosives and firearms offences, theft, fraud, property crimes, blackmail, forgery, terrorism and animal cruelty, as well as defences to criminal responsibility. > Crimes (Serious Sex Offenders) Act 2006 (NSW) – covers extended supervision orders and continuing detention orders for serious sex offenders. > Bail Act 1978 (NSW) covers the circumstances where bail will or will not be considered, which has implications for the numbers on remand (see page 3). > Fines Act 1996 (NSW) – deals with the circumstances under which non-payment of fines can lead to imprisonment. > Crimes (Interstate Transfer of Community Based Sentences) Act 2004 (NSW). > Prisoners (Interstate Transfer) Act 1982 (NSW). > Parole Orders (Transfer) Act 1983 (NSW). > International Transfer of Prisoners Act (New South Wales) 1997. Regulations > Crimes (Administration of Sentences) Regulation 2008 (NSW) – deals with the detail of admission classification, case management, correctional centre routine, searching, food, cleanliness, inmate services, chaplaincy, visits, written communications, discipline, offences, release procedure, periodic detention, home detention, staff obligations and many other matters. > Prisoners (Interstate Transfers) Regulation 2004. > Crimes (Interstate Transfer of Community Based Sentences) Regulation 2004. The Crimes (Administration of Sentences) Act and corresponding Regulation cover many more areas of prison life. In addition, the Department of Corrective Services publishes a Policy and Procedure Manual. prisOns in nsW The NSW Department of Corrective Services, headed by a Commissioner is responsible for: > 31 correctional centres – 8 maximum, 13 medium and 10 minimum security facilities; > 8 periodic detention centres; > 1 transitional centre for female inmates; > 65 probation and parole district offices. Only one NSW prison (Junee) is privately run as at January 2009, however the NSW government has announced plans to privatise prisons at Parklea and Cessnock. The NSW Legislative Council will hold an inquiry into the proposal. 93 Correctional centres are divided into four types, however, some centres cover more than one type of security classification. 92. Most of the information in this section has been drawn from the legislation as accessed in January 2009 from the Parliamentary Counsel’s website www.legislation.nsw.gov.au, from the Department of Corrective Services website www.dcs.nsw.gov.au and from the May 2008 version of the manual. 93. ‘Upper house inquiry into prison privatisation plan’ 15 December 2008 http://www.abc.net.au/news/stories/2008/12/15/2446150.htm 22 HOT TOPICS 67 > Prisoners
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