Roach v Electoral Commissioner

Facts

The plaintiff, Vicki Roach, was a prisoner serving a sentence of imprisonment and challenged amendments made by the Commonwealth Electoral Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth) to the Commonwealth Electoral Act 1918 (Cth), which disenfranchised all sentenced prisoners from voting in federal elections. The previous law had disenfranchised only prisoners serving sentences of three years or more. Roach argued the blanket disenfranchisement was constitutionally invalid.

Issues

1. Whether ss 7 and 24 of the Constitution protect an implied right to vote in federal elections. 2. Whether the complete disenfranchisement of all sentenced prisoners from federal elections exceeded the constitutional limitations on the Commonwealth Parliament's power to prescribe the qualification of electors.

Holding

By majority (Gleeson CJ, Gummow, Kirby and Crennan JJ; Hayne and Heydon JJ dissenting in part), the High Court held that the blanket disenfranchisement of all sentenced prisoners was constitutionally invalid, while the previous threshold of disenfranchising prisoners serving sentences of three years or more was valid.

Ratio decidendi

Sections 7 and 24 of the Constitution, which require senators and members of the House of Representatives to be 'directly chosen by the people', protect a constitutional right to vote that constrains Parliament's power to disqualify electors; Parliament may impose proportionate limitations on that franchise (such as disenfranchising serious offenders serving substantial sentences) but may not extinguish the franchise of all sentenced prisoners by abandoning the connection between the disqualification and the seriousness of the offending.

Obiter dicta

Gleeson CJ observed that the constitutional concept of 'the people' as electors had evolved since federation and could not now be substantially diminished below the broad franchise that had come to be entrenched by practice; the Chief Justice also noted that the right to vote is not absolute but any curtailment must be reasonably appropriate and adapted to a legitimate end consistent with the constitutional mandate of direct choice.

Significance

Roach v Electoral Commissioner is the leading Australian authority for the proposition that ss 7 and 24 of the Constitution imply a qualified but enforceable right to vote in federal elections, thereby imposing a constitutional limit on legislative prisoner disenfranchisement and affirming that entrenched democratic participation is a structural feature of the Commonwealth Constitution.

Key authorities

• Australian Capital Television Pty Ltd v Commonwealth Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106applied
• Lange v Australian Broadcasting Corporation Lange v Australian Broadcasting Corporation (1997) 189 CLR 520applied
• McGinty v Western Australia McGinty v Western Australia (1996) 186 CLR 140considered
• Nationwide News Pty Ltd v Wills Nationwide News Pty Ltd v Wills (1992) 177 CLR 1considered
• Attorney-General (Cth); Ex rel McKinlay v Commonwealth Attorney-General (Cth); Ex rel McKinlay v Commonwealth (1975) 135 CLR 1considered
• Mulholland v Australian Electoral Commission Mulholland v Australian Electoral Commission (2004) 220 CLR 181considered
• Hirst v United Kingdom (No 2) Hirst v United Kingdom (No 2) (2005) 42 EHRR 849cited