Activist Rights

Roach v Electoral Commission 2007

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Court: High Court of Australia

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

Citation and full judgement: Roach v Electoral Commissioner [2007] HCA 43

This case successfully challenged the constitutional validity of the Howard government’s 2006 prisoner voting ban. The ban prohibited all prisoners from voting no matter the severity of the crime they were imprisoned for or length of their sentence. This case upheld the notion that the Australian government is chosen ‘by the people’, which includes people who are incarcerated.

Historical Background:

The right for incarcerated persons to vote in Australia has been long debated in Australian politics. Originally in the first electoral legislation of 1901, anyone convicted of ‘any offence punishable for one year or longer’ was not entitled to vote.[1] This was maintained until 1938 when the laws were softened to offences punishable of five years or longer, and in 1995 was changed to only include actual sentences being served.[2] This was said to support Australia’s international reputation of ‘electoral fairness’ and respect for democratic practice.[3]

During the Hawke-Keating Government (1989-1995) there was a push from the ALP to give all prisoners the right to vote, but this was met with fierce backlash.[4] Eventually the Howard LNP government tightened the laws in 2004 so that no prisoner serving three years or more could vote.[5] In 2006 the Howard government passed a blanket ban 2006 which was challenged by Vicki Lee Roach.

The Issue:

This case fought to gain equal voting rights for prisoners. It challenged the Howard government’s Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Act 2006. This act, by way of ss93(8AA) and 221(3) effectively all prisoners prohibited from voting without consideration of their sentence length or the severity of the crime. In 2006 there were 20,209 prisoners in Australia, all of which would have been disenfranchised by the amendments.[6] 

The case was bought by Yuin woman Vickie Lee Roach, represented by Ron Merkel QC with FK Forsyth and KL Walker (instructed by Allens Arthur Robinson).[7] At the time Roach was 48 years old and serving a four year minimum sentence at Dame Phyllis Frost women’s prison in Victoria.[8] Roach achieved a master’s degree while incarcerated and became politically active in the rights of prisoners.[9] 

To read Roach’s whole story visit: Change The Record.

Relevant Legislation:

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

The Act sought to amend the law of elections and referendums. It was a legislative package that made changes to a number of different Acts. Relevant to this case, it made changes to the Commonwealth Electoral Act 1918 and proposed the following changes (emphases added):

Section 93(8AA)

Repeal the subsection, substitute:

(8AA) a person who is serving a sentence of imprisonment for an offence against the law of the Commonwealth or of a State or Territory is not entitled to vote at any Senate election or House of Representatives election.

Sections 208(2)(c) and 221(3) ensure that no other part of the Act contravene s93(8AA).

For the purpose of the Act, a person serving a sentence of imprisonment is defined as: a person in detention on a full-time basis for an offence against a law of the Commonwealth or a State or Territory, and that detention is attributable to the sentence of imprisonment concerned.[10]

Arguments:

Plaintiff – Vickie Lee Roach

In their arguments, legal counsel for the plaintiff sought to invalidate the Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Act 2006 by testing it against the Australian Constitution. In doing so they made four distinct arguments.

Arguments:

  1. Sections 93(8AA) and 208(2)(c) of the Act are invalid because they are inconsistent with sections 7 and 24 of the Constitution, which say that the Senate and House of Representatives must be “directly chosen” by the people.[11] This confers a right to vote in Commonwealth elections.[12]
  2. Sections 93(8AA), 208(2)(c) and 221(3) of the Act are beyond the legislative power of the Commonwealth, as laid out in s51(xxxvi) of the Constitution[13], which sets out the areas in which the Commonwealth has the power to make law.
  3. Sections 93(8AA), 208(2)(c) and 221(3) of the Act are invalid because they stifle the implied political freedom of participation, associations and communication in the Constitution[14].
  4. To disenfranchise all prisoners undermines the concept of a representative government because it haphazardly excluded all prisoners without accounting for culpability. [15] For example, prisoners serving an arbitrary sentence of a week or so could not reasonably be considered so devious that they had voided all social responsibility.[16]

They also requested that if the court found in their favour, the court re-consider the validity of the 2004 Act and decide which party should pay the costs.

Defendants – Australian Electoral Commissioner, Commonwealth of Australia and, Solicitors General of WA and NSW as intervenors

The Commonwealth of Australia argued for the validity of the act. The majority of their case relied on the grounds that Parliament could legitimately restrict voting as long as it did not prevent the government being ‘chosen by the people’, which they argued disenfranchisement did not.[17]

It was argued that prisoners have voided the ‘social contract’ (social responsibilities) and therefore should no longer be entitled voting.[18] This view sees voting as a privilege given to ‘law abiding’ citizens, and places disenfranchisement as a kind of punishment.

In line with this, the defence argued that disenfranchisement would encourage a respect for the law and support voting integrity by only allowing those who fulfil their social responsibilities to vote.[19] 

Outcome:

Judgement

In a majority, the High Court found in favour of Ms. Roach.

The Court found that the Constitution does confer a right to vote and that House of Representatives and Senate must be ‘directly chosen’ by the people, which means that restrictions on voting must not create disproportionate discrimination.[20]

The Court found that disenfranchising all prisoners was arbitrary as it did not account for the severity of their crimes, taking into account that imprisonment doesn’t necessarily indicate serious criminal activity.[21]

However, the Court did not agree that the Act was beyond the scope of Commonwealth power, they dismissed the claim that the Act infringed the implied freedom of political communication and ruled that the 2004 Act was still valid despite the invalidity of the 2006 Act. [22]

Responses:

From Vickie Lee Roach

Although the result of the case did not change Roach’s ability to vote (she was serving a sentence over three years) she was still positive about the result. She has described that after the case her ‘dark cloud’ began to sink, revealing a silver lining in her life, and how people ‘suddenly [took] an interest in what [she] had to say.’[23] Thanks to Roach and her legal team 10,000 prisoners could vote in the 2007 Federal election.[24]

Notes:

[1] Brown, D 2007, ‘The disenfranchisement of prisoners: Roach v Electoral Commissioner & Anor – modernity v feudalism,’ Alternative Law Journal, vol. 32, no. 3, pp. 132-137.

[2] Ibid.

[3] Koch & Hill 2008.

[4] Ibid.

[5] Ibid.

[6] Roach v Electoral Commissioner 2007, Australian Indigenous Law Review, vol. 11, no. 3, pp. 70-73.

[7] Roach v Electoral Commissioner [2007]

[8] ; Nguyen, K 2007, ‘Prisoner goes to High Court to win right to vote,’ The Age, April 25, viewed 5 June 2019, < https://www.theage.com.au/national/prisoner-goes-to-high-court-to-win-right-to-vote-20070425-ge4qo8.html>.

[9] Ibid/

[10] Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Act 2006 (cwth)

[11] Harris, B 2015, Constitutional law guidebook (2nd ed), Oxford University Press, Victoria. pp. 19-20.

[12] Ibid.

[13] Roach v Electoral Commissioner [2007] HCA 43

[14] Ibid.

[15] Koch, C & Hill, L 2008, ‘The ballot behind bars after Roach,’ Alternative Law Journal, vol. 33, no. 4, pp. 220-224.

[16] Brown 2007.

[17] Ibid.

[18] Koch & Hill 2008.

[19] Brown 2007.

[20] Bede 2015, p. 20.

[21] Ibid; Roach v Electoral Commissioner 2007, Australian Indigenous Law Review, vol. 11, no. 3, pp. 70-73.

[22] Roach v Electoral Commissioner 2007, Australian Indigenous Law Review, vol. 11, no. 3, pp. 70-73.

[23] Roach, V 2008, ‘Judge not – lest ye be judged,’ Alternative Law Journal, vol. 33, no. 1, pp. 2-4.

[24] Topsfield, J 2009, ‘A prisoner no more,’ Sydney Morning Herald, May 22, viewed 18 June 2019, <smh.com.au/national/a-prisoner-no-more-20090522-bico.html>.

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