Roach v Electoral Commissioner [2007] HCA 43

Roach v Electoral Commissioner [2007] HCA 43

Sections 93(8AA) and 208(2)(c) of the Commonwealth Electoral Act 1918, as amended in 2006 to exclude all prisoners serving a sentence of full-time imprisonment from voting, are constitutionally invalid as contrary to ss 7 and 24 of the Constitution. The blanket disenfranchisement is arbitrary and lacks rational connection to the system of representative government, as it does not distinguish between serious criminal offending and minor offences, and is disproportionate. Provisions that disqualify prisoners for a substantial period (such as three years or more) are permissible, as they are not arbitrary but reflect a constitutional ground (serious criminal offending) for temporary loss of...

Parties
Plaintiff: Vickie Lee Roach; First Defendant: Electoral Commissioner; Second Defendant: The Commonwealth of Australia; Intervener: Attorney-General for the State of Western Australia (Intervener); Intervener: Attorney-General for the State of New South Wales (Intervener)
Jurisdiction
Australia
Judgment Date
26 September 2007
Procedural Posture
Constitutional Law Special Case / Test Case / Full Court – Reasons for Judgment After Stated Case and Order
Outcome
Sections 93(8AA) and 208(2)(c) are invalid; prior three-year disqualification regime is revived and valid; Plaintiff awarded half her costs.
Legal Topics
Franchise – Disenfranchisement of Prisoners, Legislative Power Under Ss 7, 8, 24, 30, 44(ii), And 51(xxxvi) of the Constitution, Qualifications and Disqualifications of Electors, Representative Government, Validity of Statutory Amendment, Freedom of Political Communication
Constitutional Law Electoral Law Franchise – Disenfranchisement of Prisoners Legislative Power Under Ss 7, 8, 24, 30, 44(ii), and 51(xxxvi) of the Constitution Qualifications and Disqualifications of Electors Representative Government Validity of Statutory Amendment Freedom of Political Communication

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 13 Party arguments 2 Amounts and remedies 6
Sign in to unlock

Parties

Vickie Lee Roach

Plaintiff

Electoral Commissioner

First Defendant

The Commonwealth of Australia

Second Defendant

Attorney-General for the State of Western Australia (Intervener)

Intervener

Attorney-General for the State of New South Wales (Intervener)

Intervener

Procedural Posture

Constitutional Law Special Case / Test Case / Full Court – Reasons for Judgment After Stated Case and Order

Legal Issues

  1. 1 Whether ss 93(8AA) and 208(2)(c) of the Commonwealth Electoral Act 1918 (Cth), as amended by the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth), are invalid under ss 7 and 24 of the Constitution for disenfranchising all prisoners serving sentences of full-time imprisonment.
  2. 2 Whether Parliament’s power to disqualify electors is subject to substantive limitations by the Constitution beyond the specific words of ss 8 and 30.
  3. 3 Whether the blanket disenfranchisement of prisoners is contrary to the system of representative government mandated by the Constitution.

Ratio Decidendi

Sections 93(8AA) and 208(2)(c) of the Commonwealth Electoral Act 1918, as amended in 2006 to exclude all prisoners serving a sentence of full-time imprisonment from voting, are constitutionally invalid as contrary to ss 7 and 24 of the Constitution. The blanket disenfranchisement is arbitrary and lacks rational connection to the system of representative government, as it does not distinguish between serious criminal offending and minor offences, and is disproportionate. Provisions that disqualify prisoners for a substantial period (such as three years or more) are permissible, as they are not arbitrary but reflect a constitutional ground (serious criminal offending) for temporary loss of...

Court Disposition

Sections 93(8AA) and 208(2)(c) are invalid; prior three-year disqualification regime is revived and valid; Plaintiff awarded half her costs.

Orders

  • Section 93(8AA) and s 208(2)(c) of the Electoral Act are invalid.
  • Unnecessary to answer further questions relating to other grounds of invalidity or prior regimes beyond (3A).