Roach v Electoral Commissioner
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|Roach v Electoral Commissioner|
|Court||High Court of Australia|
|Full case name||Vickie Lee Roach v Electoral Commissioner & Anor Defendants|
|Decided||26 September 2007|
|Citation(s)|| HCA 43|
|(4:2) Current legislation invalid, previous legislation valid. (per Gleeson CJ, Gummow, Kirby and Crennan JJ)|
|Judge(s) sitting||Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ|
Roach v Electoral Commissioner  HCA 43 is a High Court of Australia case dealing with the validity of Commonwealth legislation that prevented prisoners from voting. Amendments made in 2006 that prevented all prisoners from voting were challenged, as was the previous legislation preventing all prisoners serving a sentence of 3 years or greater from voting.
Two different versions of the legislation were challenged: the Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Act 2006 (Cth), which disenfranchised everybody serving a sentence of imprisonment, and the previous legislation, the Electoral and Referendum Amendment (Prisoner Voting and Other Measures) Act 2004 (Cth), which only disenfranchised those serving a sentence of 3 years or longer.
Gleeson CJ held that the right to vote was constitutionally protected. Universal suffrage was long established; anything less was not a choice by the people as required by ss7 and 24 of the Constitution.
Removing right to vote for serious misconduct was acceptable (hence the previous legislation was valid); however imprisonment failed as a method of identifying serious criminal misconduct when looking at short-term sentences. These sentences tended to be imposed for arbitrary reasons, such as location or homelessness, that were unrelated to the seriousness of the offence.
Gummow, Kirby and Crennan JJ decided the validity of the legislation by applying an "appropriate and adapted" test similar to the second limb of the Lange test respecting freedom of political communication. The arbitrary reasons for imposing, or not imposing, short terms of imprisonment mentioned by Gleeson CJ were used to support this conclusion.
- Roach v Electoral Commissioner  HCA 43 (26 September 2007), AustLII
- Australian Constitutional Law and Theory: Supplement to Chapter 10, §4 (PDF), The Federation Press, archived from the original (PDF) on 27 February 2012
Selected media coverage
- Pearlman, Jonathan (31 August 2007). "Court gives vote back to some inmates". The Sydney Morning Herald. Fairfax Media. Archived from the original on 24 August 2008.
- Topsfield, Jewel (23 May 2009). "Leading the charge". The Sydney Morning Herald. Fairfax Media. Archived from the original on 15 October 2009.
Kirby, Michael (5 October 2007) ‘Prisoners’ Vote is the Australian Way’, Australian Financial Review.