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Norberry, Jennifer --- "Selective Democracy: Race, Gender and the Australian Vote" [2004] FedLawRw 23; (2004) 32 Federal Law Review 499

BOOK REVIEW

JOHN CHESTERMAN AND DAVID PHILIPS (EDS), SELECTIVE DEMOCRACY: RACE, GENDER AND THE AUSTRALIAN VOTE (Circa Books, 2003)

Jennifer Norberry[*]

Selective Democracy is largely the product of a conference held at the University of Melbourne in May 2002 to mark the centenary of the Commonwealth Franchise Act 1902 (Cth).

As originally introduced,[1] the Commonwealth Franchise Bill disenfranchised anyone who was attainted of treason or who had been convicted and was under sentence for an offence punishable by at least one year's imprisonment. Apart from this, any adult inhabitant of Australia with at least six months' continuous residence and who was natural born or a naturalised British subject could enrol to vote.

During the passage of the Bill, Indigenous Australians and Aboriginal natives of Asia, Africa and the Pacific (with the exception of Maori) were disenfranchised unless their vote was protected by section 41 of the Constitution. And an attempt was made to deny women the vote.[2]

Selective Democracy subjects the Commonwealth Franchise Act to interdisciplinary scrutiny — from historical, sociological, political science and legal perspectives. Race and gender underlie most of the contributions but they can also be divided thematically in other ways. In general terms, my reading revealed four strands.

The first strand relates to the making of the Commonwealth Franchise Act. Patricia Grimshaw documents the first Commonwealth Parliament's reaction to the idea that Indigenous men and women should be given the vote and argues that Australian suffragists' involvement in the colonial project meant that they did not protest against the disenfranchisement of Aboriginal women.[3] John Chesterman analyses the reasons why the Senate resiled from its early support of an Indigenous franchise and voted to disenfranchise Aboriginal natives of Australia.[4]

Of the chapters dealing with the making of the Commonwealth Franchise Act, Joy Damousi's 'Disorder, Invasion and "Irrationality" in the Federal Franchise of 1902'[5] is one of the most interesting. She identifies two themes in the parliamentary debates that preceded the passage of the Act. The first is the idea that neither women nor Indigenous people could be entrusted with the vote because, unlike white men, they were not rational actors. The second is the idea of swamping; the fear an Indigenous franchise would overwhelm white votes in certain electorates — despite the fact that Indigenous Australians were regarded by many politicians as a dying race.

Another strand in the book considers the importance of the right to vote to those who were disenfranchised by the Commonwealth Franchise Act. Wayne Atkinson argues that for the Yorta Yorta People, the right to vote was less significant than matters such as land justice, equity in the administration of Indigenous affairs and social security entitlements.[6]

Tracey Banivanua Mar's chapter places the disenfranchisement of South Sea Islanders in the context of their much wider social, economic and political exclusion.[7] At the turn of the century, some 10 000 South Sea Islanders lived in Queensland in settled communities. One of the earliest pieces of legislation enacted by the Commonwealth Parliament was the Pacific Island Labourers Act 1901 (Cth). This statute made it illegal to employ Pacific Islanders and provided for their deportation. Those who stayed could not be naturalised, suffered restricted property rights, had difficulty securing legal employment and lived in poverty.

Mar regards the Commonwealth Franchise Act as relatively insignificant for South Sea Islanders and reminds us of the 'wider social and economic impact of White Australia and the fact that formal exclusion from voting rights was merely symptomatic or symbolic of a far more thorough social disenfranchisement and imposed invisibility.'[8]

Yet another focus of the book is the vote in other British colonies — Canada and South Africa. As Shurlee Swain points out, debates preceding the introduction of a national franchise in Canada displayed similar concerns to those voiced in the first Commonwealth Parliament.[9] In particular, it was argued that an Indigenous franchise (even the limited one proposed for propertied Indigenous men in Canada) would threaten security, overwhelm the votes of white men in some electorates and might eventually result in Indigenous people being elected to Parliament. While outcomes differed in Canada and Australia,[10] democratic contradictions are evident in the debates in both nations. And, Swain argues, the eventual exclusion of Indigenous people from the vote helped to fuel the First Nations movement.

The year 2002 was also the centenary of the Treaty of Vereeniging, which ended the Boer War and, David Philips argues, laid the ground for the establishment of South Africa's apartheid regime.[11] Debates about voting rights for Black Africans and Coloured people (some of whom had had the franchise in the Cape Colony and were politically well-organised) also took place against fears of 'swamping' — with these fears being amplified because white South Africans were clearly outnumbered by Black and Coloured South Africans.

The aim of the book is to scrutinise the Commonwealth Franchise Act and its ongoing legacy. However, an examination of Commonwealth electoral laws would not be complete without some discussion of their constitutional context and this forms the fourth strand of the book. Two chapters examine the Constitution. Does it create or protect a right to vote? Could it be used to support a racially discriminatory franchise?[12] Brian Costar discusses s 25 of the Constitution and suggests that, despite its ambiguous meaning, it should be retained until Australians gain an entrenched right to vote.[13] Kim Rubenstein finds no solace in s 41 and argues that it is unclear whether there is an implied constitutional right to vote.[14]

Costar and Rubenstein also provide examples of modern exclusions from the federal vote. Costar points to the disenfranchisement of offenders.[15] And, in discussing R v Pearson; Ex parte Sipka,[16] Rubenstein recalls that election writs were issued the day after the Fraser Government called the 1983 federal election, thus closing off the rolls on that day. Many thousands of people were said to have been disenfranchised by this action — in particular, young Australians, new citizens, people whose addresses had changed, and itinerant Australians.

Costar and Rubenstein provide us with timely reminders.

Since 1995, the Commonwealth Electoral Act 1918 (Cth) has disenfranchised anyone serving a sentence of five years or longer for a Commonwealth, State or Territory offence. However, on 13 July 2004 the Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Act 2004 (Cth) received Royal Assent. As originally introduced into the Parliament this legislation represented the latest attempt of the Howard Government to disenfranchise all prisoners: irrespective of the seriousness of their crime and despite the disproportionate effect such a measure was likely to have on Indigenous Australians.

The proposed amendments did not survive Senate scrutiny. Changes made in the Senate and accepted by the House of Representatives disenfranchised any person serving a sentence of imprisonment spanning the period from the return of writs for one federal election and the issuing of writs for the next.[17] On the one hand, the amendments repealed the previous law, which arguably disenfranchised not only prisoners but convicted offenders who were not serving full-time custodial sentences.[18] At the same time, the likely effect of the amendments would have been that increased numbers of prisoners were denied the vote.

But the story of offenders and the vote does not end there. On 5 August 2004, the Electoral and Referendum Amendment (Prisoner Voting and Other Measures) Bill 2004 was introduced into the House of Representatives. The purpose of the Bill was to address operational problems relating to the prisoner voting provisions in the Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Act 2004 (Cth).[19] The Electoral and Referendum Amendment (Prisoner Voting and Other Measures) Bill 2004 received Royal Assent on 16 August 2004.[20] As a result of its amendments, anyone who is 'serving a sentence of 3 years or longer' for an offence against Australian law is unable to vote. These words suggest that, once again, Commonwealth law may reach beyond offenders serving sentences of imprisonment to disenfranchise other sentenced offenders, such as parolees.[21]

Additionally, the earlier Bill — the Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Bill 2004 provided for early closure of the rolls. These amendments would have changed the period from seven days after writs are issued to a much shorter period — 6pm on the day the writs were issued in the case of new electors and three working days after the writs were issued for changes of enrolment details.

Many thousands of Australians enrol during the seven day period between the issue of the writs and the close of the rolls. In its report on the 2001 federal election the Joint Standing Committee on Electoral Matters observed that:

In 2001, a total of 373,732 enrolments were processed in the close of rolls period. This figure, an increase of 18,543 from the 1998 election, includes new enrolments, re-enrolments and transfers of enrolment.[22]

Fortunately Senate amendments, which were agreed to by the House of Representatives, saw the close of roll provisions omitted from the Bill.

The aim of Selective Democracy is to place the Commonwealth Franchise Act 'in its historical, social, political and legal contexts, and to question the legislation's ongoing legacy.'[23] It emphasises the democratic contradiction involved in granting the vote to white women at the same time that Indigenous peoples of Australia, Asia, Africa and the Pacific were denied it. However, despite the shortcomings of the Commonwealth Franchise Act, its achievements should not be overlooked. The franchise was not based on property qualifications. And Australia was the first nation to give white women the right not only to vote but to sit in Parliament.[24] This said, Australian democracy has, indeed, been selective. As the book shows, Commonwealth franchise laws have been constructed in a framework that is also exclusionist and lacks a rights-base.

Perhaps because of its origins, not all the chapters in Selective Democracy contain in-depth analysis and some are truncated. However, the value of the book lies in its discussion of the democratic contradiction, its interdisciplinary perspectives, the international context it provides, its generally accessible language, the questions it raises about Australia's national franchise, and the attention it draws to the uncertain legal foundation which underpins universal suffrage in this country.


[*] A Canberra Lawyer.

[1] A Commonwealth Franchise Bill 1901 was introduced into the House of Representatives on 5 June 1901 and withdrawn on 3 April 1902. A virtually identical Bill, the Commonwealth Franchise Bill 1902, was introduced into the Senate on 4 April 1902.

[2] The first Parliament spent some time debating women's suffrage and speculating how women would vote. In the final chapter of the book, Jennifer Curtin scrutinises conventional wisdom that women vote conservatively. Her analysis of federal elections from 1910 to 1949 leads her to conclude that women's votes were shared between the major political parties.

[3] Patricia Grimshaw, 'White Women as "Nation Builders": Gender, Colonialism and the Federal Vote' in John Chesterman and David Philips (eds), Selective Democracy (2003) 1.

[4] John Chesterman, 'An Unheard of Piece of Savagery: Indigenous Australians and the Federal Vote' in John Chesterman and David Philips (eds), Selective Democracy (2003) 21.

[5] In John Chesterman and David Philips (eds), Selective Democracy (2003) 60.

[6] Wayne Atkinson, 'What did the vote mean to Yorta Yorta Peoples?' in John Chesterman and David Philips (eds), Selective Democracy (2003) 32.

[7] Tracey Banivanua Mar, 'No Aboriginal Native of … the Islands of the Pacific: South Sea Islanders and the Distant Vote of the Commonwealth' in John Chesterman and David Philips (eds), Selective Democracy (2003) 82.

[8] Ibid.

[9] Shurlee Swain, 'Numerous Enough to Swamp the Votes of Honest Whites: The Indigenous Franchise in Canada' in John Chesterman and David Philips (eds), Selective Democracy (2003) 50.

[10] In Canada, women were not granted the vote and universal manhood suffrage was not introduced but some propertied Indigenous men were enfranchised: ibid.

[11] David Philips, 'Towards a White Man's Union: The Denial of the Indigenous Franchise in South Africa 1902–1910' in John Chesterman and David Philips (eds), Selective Democracy (2003) 38.

[12] The races power in section 51(xxvi) of the Constitution might also be employed to support such a law.

[13] Brian Costar, 'Odious and Outmoded?: Race and Section 25 of the Constitution' in John Chesterman and David Philips (eds), Selective Democracy (2003) 89.

[14] Kim Rubenstein, 'Can the Right to Vote be taken Away?: The Constitution, Citizens and Voting Rights in 1902 and 2002' in John Chesterman and David Philips (eds), Selective Democracy (2003) 100.

[15] The disenfranchisement of offenders provision, which appeared in the Commonwealth Franchise Act 1902 (Cth) was not amended until 1983. It was next amended in 1995 and then in 2004.

[16] [1983] HCA 6; (1983) 152 CLR 254.

[17] These amendments commenced on 10 August 2004.

[18] Such as offenders on parole or on community service orders: see Graeme Orr, 'Ballotless and Behind Bars: the Denial of the Franchise to Prisoners' [1998] FedLawRw 3; (1998) 26 Federal Law Review 55.

[19] Details are provided in the Bill's Explanatory Memorandum.

[20] The relevant provisions are backdated to commence on 10 August 2004 and apply irrespective of whether the offender started serving their sentence before or after the commencement of the relevant provisions in the Electoral and Referendum Amendment (Prisoner Voting and Other Measures) Act 2004 (Cth).

[21] See, eg, Orr, above n 9 and also Jerome Davidson, 'Electoral and Referendum Amendment (Prisoner Voting and Other Measures) Bill 2004', Bills Digest No 28 (2004).

[22] The Parliament of the Commonwealth of Australia, Joint Standing Committee on Electoral Matters, Report of the Inquiry into the Conduct of the 2001 Federal Election, and Matters Related Thereto (2003) 56. The Committee's report indicates that most of the enrolments in the close of rolls period are re-enrolments, although about 10 per cent of eligible 18-year olds enrol during this time.

[23] John Chesterman and David Philips (eds), Selective Democracy (2003) x.

[24] New Zealand gave women the right to vote in 1893 but they did not gain the right to sit in Parliament until 1919. Canada did not give women the right to vote (and sit in Parliament) until 1918 (effective in 1919). In South Africa, as David Philips points out, white women were not enfranchised until 1930: Philips, above n 11, 38.

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