Law making meets technology

The meeting was called with experts from England, the Netherlands, the US and Australia. We looked at the concern in many countries about the loss of national control over law. It is fed by the Internet and the supply of so much data about law and what other people are doing. How other people are tackling very similar problems. Because of that, it is just impossible to put up your hand up and say like Canute “We’ll just deal with this problem in our own special ‘democratic’ way.”

We saw such a division just a few months back in the High Court of Australia. It was in a case which concerned the rights of prisoners to vote in the late Federal election. The case concerned an amendment to the Commonwealth Electoral Act, enacted by the Federal Parliament with the full power of the Federal Parliament.

Before the amendment, under a law which had effectively existed for the most part of the Federation a prisoner could vote in our elections unless the prisoner was in prison for more than three years, which is the ordinary federal electoral cycle.

In one of the measures in the last Parliament, that voting right was taken away. Anyone in prison was deprived of the right to vote. No exceptions.

That amendment was challenged in the High Court. Now our Constitution has no great ringing Bill of Rights and no clear specific provision on this. And so the question was presented to the High Court of Australia - to the only power that could decide whether prisoners of less than three years could vote.

Four of the Justices reached the view that Parliament did not have the power to deprive such prisoners of the vote if otherwise entitled. Two of the Justices reached the view that Parliament did have the power.

We all expressed our point of view. And then the order was made which restored those prisoners to the electoral list. And they voted in the last election.

The point of my last parable is this: In reasoning to our various conclusions, each and every one of us, called attention to the reasoning of courts in other countries, under other constitutions, according to other provisions dealing with the same matter.

Legislatures in several countries had imposed big or short or long or no restrictions on prisoner’s voting in the general elections. The questions arose as to whether the amending law was compatible with the Australian Constitution and its guarantees of political freedom. In Chief Justice Gleeson’s reasons, he referred to matters of history.

In the reasons of Justice Gummow, Crennan and myself, we like Chief Justice Gleeson, referred to the decisions of the European Court of Human Rights, which had declared how important it was that restrictions on the right to vote should be strictly proportional to a demonstrated need to limit the entitlement of a citizen to take part in the political life of their country.

Justices Hayne and Heydon were fiercely critical of the opinions of the majority. They said that it was impermissible to look at what other courts in other countries, with different constitutions and different circumstances say on such a matter - and that it was immaterial to study what they had held.

But the difficulty of today for judges of the minority view is this: By this technology, by the Net, we are constantly bombarded with information about what is happening elsewhere and with information about how other clever people address, consider and solve analogous questions.