Roach v Electoral Commission 2007

Question 1

Court:

Answer 1

High Court of Australia

Question 2

Relevant Legislation:

Answer 2

Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Act 2006

Question 3

Citation and full judgement:

Answer 3

Roach v Electoral Commissioner [2007] HCA 43

Question 4

what happened in this case?

Answer 4

• The case challenged the constitutional validity of the Howard government’s 2006 prisoner voting ban.
• The ban prohibited all prisoners from voting regardless of the crime or length of the sentence.
• The court upheld that the Australian government is chosen ‘by the people,’ including those who are incarcerated.

Question 5

historical background

Answer 5

• Early Legislation: In 1901, the first electoral legislation barred anyone convicted of an offence punishable by one year or more from voting.
• Changes Over Time:
  
  • 1938: Laws changed to exclude those convicted of offences punishable by five years or more.
  • 1995: Law revised to exclude only those serving actual sentences.
• International Standards: These changes aimed to support Australia’s reputation for electoral fairness and democratic practice.
• Hawke-Keating Government (1989-1995): The ALP proposed giving all prisoners the right to vote, but faced strong opposition.
• Howard Government Changes:
  
  • 2004: Law tightened to exclude prisoners serving three years or more from voting.
  • 2006: Implemented a blanket ban on prisoner voting, challenged by Vicki Lee Roach.

Question 6

the issue

Answer 6

• Case Focus: The case sought to gain equal voting rights for prisoners by challenging the Howard government’s Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Act 2006.
• Legislation Impact: Sections 93(8AA) and 221(3) of the Act prohibited all prisoners from voting, regardless of sentence length or crime severity.
• 2006 Prisoner Statistics: In Australia, 20,209 prisoners would have been disenfranchised by these amendments.
• Plaintiff: The case was brought by Vicki Lee Roach, a Yuin woman, represented by Ron Merkel QC with FK Forsyth and KL Walker (instructed by Allens Arthur Robinson).
• Background of Roach: At the time, Roach was 48 years old, serving a four-year minimum sentence at Dame Phyllis Frost Women’s Prison in Victoria. She achieved a master’s degree while incarcerated and became politically active in prisoner rights.

Question 7

relevant legislation

Answer 7

• Act Overview: The Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Act 2006 amended various laws related to elections and referendums.
• Relevant Changes:
  
  • Section 93(8AA): Repealed and replaced to state that individuals serving a sentence of imprisonment for any offence (Commonwealth, State, or Territory) are not entitled to vote in Senate or House of Representatives elections.
  • Sections 208(2)(c) and 221(3): Ensured that no other part of the Act contradicted the new provisions in Section 93(8AA).
• Definition: A person serving a sentence of imprisonment is defined as someone in full-time detention for an offence against any law, with detention attributable to the sentence.

Question 8

arguments - plaintiff - Vicki Lee Roach

Answer 8

Arguments Against the Act:
1. Constitutional Inconsistency:
- Sections 93(8AA) and 208(2)(c) are inconsistent with sections 7 and 24 of the Constitution, which require that the Senate and House of Representatives be “directly chosen” by the people, thus granting a right to vote in Commonwealth elections.

2. Exceeding Legislative Power:
   
   • Sections 93(8AA), 208(2)(c), and 221(3) exceed the Commonwealth’s legislative power as defined by section 51(xxxvi) of the Constitution, which outlines the areas in which the Commonwealth can legislate.
3. Implied Political Freedom:
   
   • These sections infringe upon the implied political freedoms of participation, association, and communication protected by the Constitution.
4. Undermining Representative Government:
   
   • The blanket disenfranchisement of all prisoners undermines the concept of representative government by excluding individuals without considering the severity of their crime or length of sentence.

Additional Requests:
- If successful, request the court to reconsider the validity of the 2004 Act.
- Determine which party should bear the costs.

Question 9

arguments - defendants - Australian Electoral Commissioner, Commonwealth of Australia, and Solicitors General of WA and NSW (as intervenors)

Answer 9

Arguments for the Act:
1. Parliamentary Authority:
- Parliament can restrict voting as long as it does not prevent the government from being ‘chosen by the people’. The defendants argued that disenfranchisement does not violate this principle.

2. Social Contract:
   
   • Prisoners have forfeited their social responsibilities, thus should not be entitled to vote. Voting is seen as a privilege for ‘law-abiding’ citizens, with disenfranchisement serving as a form of punishment.
3. Encouragement of Law Respect:
   
   • Disenfranchisement promotes respect for the law and supports voting integrity by limiting voting rights to those who fulfill their social responsibilities.

Question 10

outcome - judgment

Answer 10

High Court Decision

Outcome:
- The High Court found in favor of Ms. Roach.

Key Findings:
1. Right to Vote:
- The Constitution does confer a right to vote, and the House of Representatives and Senate must be ‘directly chosen’ by the people. Therefore, restrictions on voting must not result in disproportionate discrimination.

2. Arbitrary Disenfranchisement:
   
   • Disenfranchising all prisoners was deemed arbitrary as it did not consider the severity of their crimes. Imprisonment alone does not necessarily indicate serious criminal activity.
3. Scope of Commonwealth Power:
   
   • The Court did not find that the Act was beyond the Commonwealth’s legislative power.
4. Implied Freedom of Political Communication:
   
   • The Court dismissed the claim that the Act infringed the implied freedom of political communication.
5. Validity of the 2004 Act:
   
   • The 2004 Act remained valid despite the invalidity of the 2006 Act.

Question 11

Responses - From Vickie Lee Roach

Answer 11

• Impact on Roach:
  
  • Although the case did not change Roach’s ability to vote (as she was serving a sentence over three years), she remained positive about the outcome.
  • She described feeling that a ‘dark cloud’ began to lift, revealing a ‘silver lining’ in her life.
  • The case led to increased interest in her views and activism.
• Broader Impact:
  
  • Thanks to Roach and her legal team, 10,000 prisoners regained the right to vote in the 2007 Federal election.