Thu Oct 20

Why permanent residents and long-term temporary visa holders should be able to vote in federal elections

Written by Joo-Cheong Tham, Professor, Melbourne Law School, The University of Melbourne

Who should have the right to vote?

A common answer is adult citizens of a country. Indeed, the national electoral laws of most countries – including Australia ^[1] – adopt this approach.

But what about the approximately 3.4 million permanent residents ^[2] and temporary visa holders ^[3]? Many of them call Australia home, having lived and worked in this country for years, and together they amount to more than 13% of the Australian population ^[4].

Should they be denied the right to vote because they don’t have citizenship, despite the strong connections they have to the country?

I argue “no”. Not having citizenship shouldn’t mean automatic disqualification from being able to vote.

Permanent residents and long-term holders of temporary visas should be able to vote in federal elections (as they can in most local government elections) because of their social membership of the Australian community.

Citizenship as a floor but not a ceiling

Citizenship is a compelling basis for voting rights. Article 25 of the International Covenant on Civil and Political Rights ^[5] stipulates “every citizen” shall have rights of political participation including the right to vote.

It is, however, a grave mistake to treat non-citizenship as a basis of exclusion from voting rights. Article 25 guarantees particular political rights to citizens, but it does not deny these rights to non-citizens. Citizenship is a floor not a ceiling for voting rights.

As the United Nations Human Rights Committee recognised ^[6], permanent residents may be provided political rights compatibly with Article 25. Indeed, Article 21(3) of the Universal Declaration of Human Rights ^[7] states that

the will of the people shall be the basis of the authority of government.

The Australian Constitution, which doesn’t expressly mention citizenship ^[8], similarly requires members of parliament be “directly chosen by the people ^[9]”. Both documents clearly point to an understanding of political community broader than one based on citizenship.

Such a broader understanding is evident in many countries where non-citizens are entitled to vote in sub-national elections ^[10]. In Australia, resident non-citizens are entitled to vote at local government elections in New South Wales ^[11], Victoria ^[12], South Australia ^[13] and Tasmania ^[14].

In several countries, non-citizens are also entitled to vote in national elections including:

South Korea ^[15] where “a non-Korean citizen registered in the relevant local constituency and who has had a resident visa for at least three years has the right to vote” in presidential and National Assembly elections
New Zealand ^[16] where permanent residents who have “lived in New Zealand continuously for 12 months or more at some time” can vote in national elections.

‘Social membership’ as a basis for the right to vote

Alongside citizenship, the deep connections one has to a country through family, friends, work and a sense of belonging are also a basis of membership of a political community. These connections and belonging provide both commitment and consequence: they signify caring for the country of residence and being profoundly affected by its laws.

In his book, The Ethics of Immigration ^[17], political scientist Joseph Carens captured this insight through his principle of “social membership”. This is where membership arises from “the relationships, interests, and identities that connect people to the place where they live”. As a proxy for these dense connections, Carens proposed length of residence.

This principle of social membership is reflected in countries where non-citizens are entitled to vote (including most Australian local government elections).

This concept is also suggested in various international documents. The Declaration of the High-level Dialogue on International Migration and Development ^[19], a resolution unanimously adopted by the United Nations General Assembly, acknowledges “the important role that migrants play as partners in the development of countries of origin, transit and destination”.

The General Assembly’s Global Compact for Safe, Orderly and Regular Migration ^[20] lays down a commitment to “foster inclusive and cohesive societies by empowering migrants to become active members of society”.

History provides surprising support. At the heart of the original Commonwealth Franchise bills was a highly progressive principle of inclusion – even by today’s standards. In the words ^[21] of Senator Richard O’Connor, who had their carriage, they recognised

one ground only, as giving a right to vote, and that is residence in the Commonwealth for six months or over by any person of adult age. That franchise is the broadest possible one. There is no class of the community left out.

Racist opposition, however, resulted in the eventual Commonwealth Franchise Act of 1902 denying Indigenous Australians, Asians, Africans and Pacific Islanders the right to vote.

Reflecting the Australian community

The principle of social membership explains why permanent residents should have the vote in federal elections (perhaps after a brief period of continuous residence, as in New Zealand).

It also provides a strong argument for long-term holders of temporary visas to have the vote in these elections. Long-term can be based on a minimum of three years’ residence, as in South Korea.

Expanding the vote in these ways will make Australia a leader as a democratic and inclusive migrant nation.

This article draws upon a longer submission ^[22] to the inquiry of the Joint Standing Committee on Electoral Matters into the 2022 federal election.