LLW1000 Public Law: Non-Citizen Voting Rights & Disenfranchisement

This essay delves into the complex issue of voting rights in Australian public law, specifically focusing on the disenfranchisement of citizens and the debate surrounding extending voting rights to non-citizens. It examines the constitutional basis of voting rights, the impact of residency requirements, and the arguments for and against disenfranchisement based on factors such as residence abroad and lack of connection to the political realities of the nation. The essay also addresses the unique context of Australia as a nation with a significant immigrant population and a strong tradition of democratic participation, considering the rights and responsibilities of permanent residents and the legal interpretations of constitutional provisions related to voting. Furthermore, it explores five major debates regarding disenfranchised citizens in Australia, including the requirement for foreigners to earn the right to vote, the asymmetry dilemma between citizens living abroad and permanent residents, and the potential for non-citizens to be treated as second-class citizens. The document is available on Desklib, a platform offering a wide array of study tools and solved assignments for students.

Running head: QUESTION 0
Australian public law
AUGUST 31, 2018
STUDENT DETAILS:

QUESTION 1
Contents
Introduction................................................................................................................................2
Right to vote, nationality and residence-....................................................................................2
When an individual disenfranchised due to residence abroad?.................................................3
Influences of disenfranchisement-.............................................................................................4
Five major debate regarding disenfranchised citizens in Australia-..........................................7
Conclusion-................................................................................................................................9
Bibliography.............................................................................................................................10

QUESTION 2
Introduction
In many countries, the right to vote is regarded as basic right of the citizens. The voting is
most critical way that an individual may affect governmental decision making every citizen
must have the right and opportunity without any limitation or without any dissimilarity.
Voting takes place in respect of national or local election at large scale every person should
have right to vote and to be voted at honest and open periodic elections. In most the states,
the eligible voters can vote in the elections. However, the only few countries allow the non-
citizens to vote in the election. The non-citizen is regarded in relation to elections for the
representative. Australia also permits some foreign citizens to give their vote in federal
elections1.
In this essay, the question of whether voting rights should extend to all the persons including
non-citizen and disenfranchised citizens in Australia.
Right to vote, nationality and residence-
In the constitutional tradition of the Australia, the voting right is identified as basic right.
Every citizen of Australia should have right to take participation in the self-governing life of
the Union. The voting right in the election is connected to the right of participation of the
politicians. The voting right is conferred upon the citizens of the polity with valid limitations
including due to age, mental condition and some criminal sentences2.
1 Arrighi Jean-Thomas and Rainer Baubock ,‘A multilevel puzzle: Migrants’ voting rights in
national and local elections’ (2017) 56 European journal of political research 619, 639 .
2 Shawn Bowler , David Denemark, Donovan Todd and McDonnell Duncan, ‘ Right‐wing
populist party supporters: Dissatisfied but not direct democrats’ (2016) 56 European Journal
of Political Research 70,91 .

QUESTION 3
The voting right is a general rule, connected to the nationality of the country. Some nations
place the additional situation on the eligibility to give vote such as residence in the nation of
the election. The requirement related to residence replies to concerns over the capacity of
permanent citizens residing out of country to give the significant vote as they are supposed
not to be adequately related to political reality in nation of origin.
When an individual disenfranchised due to residence abroad?
3The disenfranchisement refers to the loss of the democratic rights. The absence of
permissible provisions for the voting from out of country is not disenfranchisement as it only
provides the implementation of the active electoral right more problematic when not
removing it. The disenfranchisement because of residence out of country can take the formula
of positive necessity such as minimum time of living in the nation or the bad one, loss of
democratic rights after some time in out of the country. Some democratic law of country
involve minimum time of residence in the region where the voters may get the registration.
However, this is not the subject of minimum necessities for the house in their nation .
The necessary requirements are required to get understand for the fulfilment of object of the
qualifications of citizens as voters. The loss of democratic rights because of time spent out of
country should also be considered as lawmakers. The voting rights are dispossessed of the
chances to give vote in the national elections. The host nations do not deliberate the
democratic rights in national elections to non-national. When place has been taken by the
disenfranchisement even if the citizens live in other state, the loss of democratic rights can
trespass on the freedom of movement and residence within the state in Australia4 .
3 Daniele Caramani and Florian Grotz, ‘Beyond citizenship and residence? Exploring the
extension of voting rights in the age of globalization’ (2015) 22 Democratization 799,819.
4 De Schutter, Helder and Ypi Lea,’ The British Academy Brian Barry Prize Essay:
Mandatory Citizenship for Immigrants’ (2015) 45 British Journal of Political Science
235,251.

QUESTION 4
Influences of disenfranchisement-
Most of the countries do not oblige their citizens out of country to register with the national
authorities. Not all countries have process to render the notice to the authorities of the
movement of disenfranchisement out of country. The less number of the citizens living out of
country registering to give vote in the elections of the nation has been used to validate the
disenfranchisement because of the far-ranging indifference of the citizens abroad in taking
participation in the administrative life at the home5.
The Disenfranchisement of nationals residing out of country is founded on the statement that
they lack the information of the administrative authenticity in their nation of nationality, in
that way divesting them of the capability to cast a well versed and the significant vote. It is
argued that non-citizens are not directly influenced by the actions of the government. They do
not pay income taxes in the nation of origin. As per this, some point to the charges of giving
vote from out of country and the chances of scam.
The destabilised connection between the expatriates and their nation of origin does not
however lead to a loss of citizenship. The citizenship is the temporary connection between a
public and its nationals. In respect of the rights of the citizens and duties of the citizens, the
major factor is nationality connection with the state. The people lived out of country still have
duties originating from their race so that they must also be deliberated the conforming
powers. The appropriate legacy rule for example depends in the majority of the nations on the
nationality of the deceased. Moreover, even long-term people out of country might and often
come back to the nation of origin and will then be unrestrictedly in by national legislature 6.
5 Brian Galligan and Ted FL Morton, ‘Australian exceptionalism: Rights protection without
a bill of rights’ (2017) 25 In Protecting Rights Without a Bill of Rights 27,50.
6Luis E. Guarnizo ‘The fluid, multi-scalar, and contradictory construction of citizenship’
(2017) 35 In Remaking urban citizenship 19, 44.

QUESTION 5
The judgement to give voting rights to the non-citizens is the consideration of the
constitutional culture of the country. The Australia is refugee country. Australia allowed the
people to come in the country and live as permanent residents. Australia also allowed the
people to enter and work in the country without any restriction. This permission of the
Australia creates the little distinction between the public rights and the public rights of the
people of Australia or the citizens. The permanent residents have most permissible
responsibilities and the powers or privileges. Here is exception that they will accept the
nationality of the Australia after the duration of habitation. The naturalisation rates in the
Australia are stated to be about seventy to eighty per cent7.
There is a solid culture of democratic participation in the government system of Australia. It
was held by the high court that rich jurisprudence around the legal obligation that the
parliament be selected by an individual on the direct basis as per the section 7 of the
constitution and section 24 of the Constitution. The section 7 and section 24 are the
foundations for the limits on the power of parliaments to make law around the procedure of
voting. These sections also use to make limitations on the powers of parliament of the
authorise the powers to limits the voting powers of the criminals and stop parliament limiting
the option of registration in the central election. The court also ensures that the franchise is as
extensive as possible. Many cases have been suggested by the many magistrates,
notwithstanding the lack of express term to this effect that constitution leads to the least
Franchise that cannot be eliminated from the parliament 8.
7 Adrian Favell, Philosophies of integration: Immigration and the idea of citizenship in
France and Britain(Palgrave Macmillan UK,1998) 1.
8 Paul Hamer ‘Maori in Australia: voting rights and behaviour’ (2018) 4 Policy Quarterly
22,29.

QUESTION 6
Further, the terms mentioned in the section 7 of the constitution and section 24 of the
constitution is the base of the legal independence of political announcement. There is
different opinion of the different judges in the high court on the question whether the
independence of the political interaction is restricted to the people of Australia or citizens. In
the case of Cunliffe v Commonwealth [1994] HCA 44- 182 CLR 272, it is stated by the
Mason CJ that Non-citizens who are exist in the nation such as citizens are permitted to the
security gave by the constitution, Australian law, rules and regulations9. It monitors that Non-
citizens actually in the nation are permitted to invoke the implied independence of the
interaction, especially when they are performing that independence for the object or in order
to develop the status as applicants and refugees or proclaiming the claim in against the
government or taking the security of the government. Similarly, it was also stated that when
an alien in this nation is takes the security of the common law involving the security of
guarantee of constitution, commands, and exclusions, they stand outside the persons of the
commonwealth whose independence of the political communication is the necessary10 .
The independence makes focus on the procedure off voting. If the non-citizens take the
participation in the democratic government, then their capacity to involve in the
communication in respect of the voting process will garner the similar security in the implied
independence as is afforded citizens. It is obvious by the construction of the freedom of the
high court is that communication matters a lot. Speakers do not matter. In this way, it is the
communication, which has influence over the voting procedure11. It is not so easy to consider
9 Lisa Hill ‘Does compulsory voting violate a right not to vote?’ (2015) 50 Australian
Journal of Political Science 61,72.
10 Florian Justwan ‘Disenfranchised minorities: trust, definitions of citizenship, and
noncitizen voting rights in developed democracies’ (2015) 36 International Political Science
Review 373,392.
11 Turner Byan S. ‘We are all denizens now: on the erosion of citizenship’ (2016) 20
Citizenship studies 679,692.

QUESTION 7
the reverse of the extension. The encompassing the franchise to permanent citizen in the
national election or state election is constant with long-term tendency. It will motivate the
commitment and the contribution in self-governing procedure in the Australian values .
Five major debate regarding disenfranchised citizens in Australia-
Five major debate in respect of right to vote of non-citizens or disenfranchised citizens in
Australia-
1. The foreigners are required to earn their right to vote- it is argued that migrants
require to prove important devoted effort in respect of the right to vote, which is why
voting is limited to the citizens. The migrants have left their home. It is not the
mistake of the foreign residents that a government has established obstacles to the
citizenship. In many cases, the permanent people have made more promises and
assurances to Australia than Australia born people12 .
2. The asymmetry dilemma- there are many cases, where Australian citizens living out
of country, notwithstanding living in the nation for possibly years on end, are still
eligible to vote. However, the permanent people may survive in Australia for the
years on end, but not eligible to give vote. The problem points the issue of relating
citizenship with rights of voting13 .
3. Second class citizens- it is argued by many supporters that it is a feeling of second
citizen for foreign residents, when to exclude them from the voting. Non-citizens are
at the risk of partiality. The interest of non-citizens can be ignored by the politicians.
12 Ruud Koopmans and Ines Michalowski, ‘Why do states extend rights to immigrants?
Institutional settings and historical legacies across 44 countries worldwide’ (2016) 50
Comparative Political Studies 41,74.
13 Jean –Michel Lafleur ‘The enfranchisement of citizens abroad: variations and
explanations’ (2015) 22 Democratization 840,860.

QUESTION 8
The reason is that politicians know that this community cannot go in their against.
They know that these members cannot vote in their against14.
4. The dual citizenship problem- in some countries, the dual citizenship is not permitted.
If permanent residents became the citizens of Australia, then they have to reject
citizenship of the nation where they took born. It is argued by the supporters that
permanent people must basically become the citizens. It is not reasonable to expect
the people to lose the connection with their family and the homeland even though they
have dedicated their new life to Australia15 .
5. The non-citizens will influence the political landscape- it is also argued that including
the many new people to give vote, may alter the political land. This idea and opinion
should be considered by the lawmakers at the time of creation of law. Thus, the voting
rights must extend to all person of the community because they are members of the
community16 .
Conclusion-
As per the above analysis, it is concluded that the voting powers should be necessarily extend
to the non-citizens. There are two grounds of the case for extending the voting rights to the
non-citizen in the national elections and state elections. Firstly, it is found that there are
principle reasons in self-governing theory to encourage an addition of the rights to vote to the
14 Nunn Caitlin, McMichael Celia, Gifford Sandra M. and Correa-Velez Ignacio, ‘Mobility
and security: the perceived benefits of citizenship for resettled young people from refugee
backgrounds’ (2015) 42 Journal of Ethnic and Migration Studies 382,399.
15 Hammar Tomas, Democracy and the nation state ( Routledge New York ,2017)120.
16 McNair Brain, An introduction to political communication (Routledge New York, 2017)
100.

QUESTION 9
non-citizens. Secondly, the effects of the disenfranchised citizens are also discussed in the
context of Australia’s democratic system. In a world, where the movement of persons is
enhancing and people’s commitments are not limited to their nation of citizenship, the case
for expansion of the non-citizen to permanent residents is a convincing one.

QUESTION 10
Bibliography
Jean-Thomas Arrighi and Baubock Rainer ,‘A multilevel puzzle: Migrants’ voting rights in
national and local elections’ (2017) 56 European journal of political research 619.
Bowler Shawn , Denemark David , Donovan Todd and McDonnell Duncan, ‘ Right‐wing
populist party supporters: Dissatisfied but not direct democrats’ (2016) 56 European Journal
of Political Research 70.
Caramani Daniele and Grotz Florian ,‘ Beyond citizenship and residence? Exploring the
extension of voting rights in the age of globalization’ (2015) 22 Democratization 799.
Schutter De, Helder and Lea Ypi,’ The British Academy Brian Barry Prize Essay:
Mandatory Citizenship for Immigrants’ (2015) 45 British Journal of Political Science 235.
Galligan Brian and Morton FL Ted, ‘Australian exceptionalism: Rights protection without a
bill of rights’ (2017) 25 In Protecting Rights Without a Bill of Rights 27.
Guarnizo Luis E. ‘The fluid, multi-scalar, and contradictory construction of citizenship’
(2017) 35 In Remaking urban citizenship 19.
Favell Adrian , Philosophies of integration: Immigration and the idea of citizenship in
France and Britain(Palgrave Macmillan UK,1998) .
Hamer Paul ‘Maori in Australia: voting rights and behaviour’(2018) 4 Policy Quarterly 22.
Hill Lisa ‘Does compulsory voting violate a right not to vote?’ (2015) 50 Australian Journal
of Political Science 61.

QUESTION 11
Justwan Florian ‘Disenfranchised minorities: trust, definitions of citizenship, and noncitizen
voting rights in developed democracies’ (2015) 36 International Political Science Review
373.
Turner Byan S ‘We are all denizens now: on the erosion of citizenship’ (2016) 20
Citizenship studies 679.
Koopmans Ruud and Michalowski Ines, ‘Why do states extend rights to immigrants?
Institutional settings and historical legacies across 44 countries worldwide’ (2016) 50
Comparative Political Studies 41.
Lafleur Jean –Michel ‘The enfranchisement of citizens abroad: variations and
explanations’ (2015) 22 Democratization 840.
Nunn Caitlin, McMichael Celia, Gifford Sandra M. and Correa-Velez Ignacio, ‘ Mobility
and security: the perceived benefits of citizenship for resettled young people from refugee
backgrounds’ (2015) 42 Journal of Ethnic and Migration Studies 382.
Hammar Tomas , Democracy and the nation state( Routledge New York ,2017).
McNair Brain ,An introduction to political communication(Routledge New York ,2017) .