- In 2004, the Commonwealth passed the Electoral and Referendum Amendment (Prisoner Voting and Other Measures) Act 2004 (Cth) (“the Act“) that prevented any prisoners from voting.
- This was an amendment to the Act which had previously restricted prisoners serving sentences of 3 years or more from voting.
- Vicki Roach was a Victorian of Aboriginal descent who was serving a 6-year sentence of imprisonment in Deer Park. Roach and her partner had robbed a milk bar in 2002 and was convicted on five counts for offences of burglary, theft, conduct endangering persons, and negligently causing serious injury.
- Roach was unable to vote in the 2007 election due to being imprisoned at the time. Roach challenged the validity of the Act, claiming it infringed on her Constitutional right to vote in elections.
- Was the Act invalid due to infringing on the Constitutional right to vote?
- The Court held that the 2006 amendments were inconsistent with the system of representative democracy established by the Constitution.
- Gleeson CJ held that voting in elections lies at the heart of that system of representative government, and disenfranchisement of a group of adult citizens without a substantial reason would be inconsistent with it.
- Justices Gummow, Kirby, and Crennan decided on the invalidity of the Act by applying an “appropriate and adapted” test similar to the second limb of the Lange test respecting freedom of political communication.
- Sections 7 and 24 of the Constitution require that Senators and Members of the House of Representatives are “directly chosen by the people” and are applied to different circumstances and times, and imply a degree of legislative choice.
- The phrase “chosen by the people” demonstrates a requirement that all adult citizens can vote unless there is a substantial reason for excluding them.
- A reason for exclusion will only be valid if it is “reasonably appropriate and adapted” to serve a purpose which is consistent with maintaining representative government.
- The 3-year criterion in the 2004 amendments was held to be valid as it sufficiently distinguished between serious lawlessness and less serious but still reprehensible conduct
“Could Parliament now legislate to remove universal suffrage? If the answer to that question is in the negative (as I believe it to be), then the reason must be in the terms of ss 7 and 24 of the Constitution, which require that the senators and members of the House of Representatives be ‘directly chosen by the people’ of the State or the Commonwealth respectively. In 1901, those words did not mandate universal suffrage … the words of ss 7 and 24, because of changed historical circumstances including legislative history, have come to be a constitutional protection of the right to vote. Because the franchise is critical to representative government, and lies at the centre of our concept of participation in the life of the community, and of citizenship, disenfranchisement of any group of adult citizens on a basis that does not constitute a substantial reason for exclusion from such participation would not be consistent with choice by the people.”
(Gleeson CJ at paragraph )
The full text is available here: http://eresources.hcourt.gov.au/showCase/2007/HCA/43
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