Roach Case

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Case Name

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Roach v. Electoral Commissioner (2007)

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Case Facts

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The plaintiff, Vicki Lee Roach, was convicted on five counts of offences that included burglary, conduct endangering persons and negligently causing serious injury. She received a total effective sentence of 6 years imprisonment with eligibility for parole on August 2008.

The Roach case questioned the validity of certain amendments to the Electoral Act made by the Electoral and Referendum Amendment (Electoral Integrity and other Measures) Act 2006 (Cwth.) These changes prohibited all prisoners who were serving a sentence of imprisonment for a Commonwealth, state or territory offence from voting in federal elections. Before the 2006 amendment only those prisoners serving a sentence of 3 years or longer were excluded from electoral rolls.

Roach challenged the constitutional validity of the 2006 amendments on 4 grounds: any legislation fro disqualification of electors must satisfy the representative government criteria; the Commonwealth had no power to legislate against people convicted under state laws; the implied freedom of political communication protects voting in federal elections; the act limited the operation of the system of representative and responsible government mandated by the Constitution.

It was the fourth ground on which the High Court based its decision.

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High Court Decision

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In a 4:2 majority decision the High Court held that the 2006 amendment was invalid and unconstitutional, as it was inconsistent with the principles of representative government. Justices Gummow, Kirby and Crennan found that representative government enshrines a right to vote, and that the community must have an equal vote for those who govern it.

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Reasoning

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The High Court relied on a number of sections of the Constitution to support their decision. Chief Justice Gleeson found that S7 and S24 of the Constitution protected a consitutional right to vote, as the senators and members of the House of Representatives must be directly chosen by the people. The court recognised that the right to vote can be restricted, but that this is limited to circumstances necessary to preserve representative government. Restrictions could include unsoundness of mind, conviction for treason or treachery and prisoners serving sentences of more than 3 years. Thus, the 2006 amendment was declared invalid. The right to vote could be removed for serious criminal misconduct, but not for more minor offenders. Roach was still unable to vote in the 2007 general election.

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Significance

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The decision of the court affirmed that there is a constitutional right to vote for adult members of the Australian community, which is protected by the structure of representative government. The High Court did not go so far as to call the right to vote an implied right; instead this right is a reflection of structural protection. Thus, representative government can act as a limit on the powers and sovereignty of the Commonwealth Parliament, which cannot legislate away the right to vote without good reason.

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Summary

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Roach was a Victorian woman serving a term of imprisonment. Roach challenged the validity of amendments made in 2006 to the Electoral Act which prohibited persons who were serving a term of imprisonment from voting in federal elections. The case was heard in the High Court which held that the amendments were inconsistent with the principle of representative government established by the Constitution. The Court held that sections 7 and 24 of the Constitution required the Houses of Parliament to be ‘directly chosen by the people’ and this right may only be limited for a substantial reason. The decision was significant because it upheld the structural protection of the right for parliament to be directly chosen by the people, as well as the right to a representative government.