HIGH COURT OF AUSTRALIA
GLEESON CJ
GUMMOW, KIRBY, HAYNE, HEYDON AND CRENNAN JJVICKIE LEE ROACH PLAINTIFF
AND
ELECTORAL COMMISSIONER & ANOR DEFENDANTS
Roach v Electoral Commissioner
[2007] HCA 43
Date of Order: 30 August 2007
Date of Publication of Reasons: 26 September 2007
M19/2007ORDER
The questions stated in the Amended Special Case filed on 9 July 2007 be answered as follows:
(1)
Q.Are ss 93(8AA) and 208(2)(c) of the Act, and s 221(3) of the Act to the extent that it gives effect to these provisions, invalid because they are contrary to ss 7 and 24 of the Commonwealth Constitution?
A.Sections 93(8AA) and 208(2)(c) of the Act are invalid.
(2)
Q.Are ss 93(8AA) and 208(2)(c) of the Act, and s 221(3) of the Act to the extent that it gives effect to these provisions, invalid because they are beyond the legislative power of the Commonwealth conferred by ss 51(xxxvi) and 30 of the Constitution and any other head of legislative power?
A. Unnecessary to answer.
(3)
Q.Are ss 93(8AA) and 208(2)(c) of the Act, and s 221(3) of the Act to the extent that it gives effect to these provisions, invalid because they are contrary to:
(i) The freedom of political communication implied in the Constitution; or
(ii)A freedom of participation, association and communication in relation to federal elections implied in the Constitution?
A.Unnecessary to answer.
(3A)
Q.If the answer to question 1, 2 or 3, is "yes", are ss 93, 109, 208 and 221(3) of the Act as in force prior to the amendments (including repeals and substitutions) made to those and related provisions by the Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Act 2006 (Cth), s 3 and Sched 1, items 3, 4, 13, 14, 15, 50, 61 and 62 in force and valid?
A. The provisions listed in the question are in force and valid.
(3B)
Q.If the answer to question 3A is "no", are ss 93 and 109 of the Act as in force prior to the amendments (including repeals and substitutions) made to those and related provisions by the Electoral and Referendum Amendment (Prisoner Voting and Other Measures) Act 2004 (Cth), s 3 and Sched 1, items 1-5 in force and valid?
A. Question 3B postulates a relevant distinction between the text of the Electoral and Referendum Amendment (Prisoner Voting and Other Measures) Act 2004 (Cth) and the Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Act 2004 (Cth), but, given the answer to question 3A, unnecessary to answer.
(3C)
Q.If the answer to question 3B is “no”, are ss 93 and 109 of the Act as in force prior to the amendments (including repeals and substitutions) made to those and related provisions by the Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Act 2004 (Cth), s 3 and Sched 1, items 6, 7, 46, 71 and 95 in force?
A.Question 3C postulates a relevant distinction between the text of the Electoral and Referendum Amendment (Prisoner Voting and Other…
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- AGLC
- Roach v Electoral Commissioner [2007] HCA 43
- Case
- [2007] HCA 43
- Decision Date
CaseChat Overview and Summary
The central legal issue before the High Court was whether sections 93(8AA) and 208(2)(c) of the *Electoral Act*, as amended, were invalid. This required the Court to determine if a law disenfranchising all prisoners serving a sentence of imprisonment was a law with respect to the "qualification of electors" within the meaning of sections 8, 30, and 51(xxxvi) of the Constitution. Furthermore, the Court had to consider whether such disenfranchisement was compatible with the system of representative government established by sections 7 and 24 of the Constitution, and whether it unduly burdened the implied freedom of political communication.
A majority of the High Court (Gleeson CJ, Gummow, Kirby, and Crennan JJ) held that sections 93(8AA) and 208(2)(c) of the *Electoral Act* were invalid because they were contrary to sections 7 and 24 of the Constitution. The majority reasoned that the constitutional framework for representative government, which requires that the members of the House of Representatives be "directly chosen by the people," implies a universal adult franchise. While Parliament has the power to prescribe qualifications and disqualifications for electors, any such law must be reasonably appropriate and adapted to serve a purpose consistent with the system of representative government. The blanket disenfranchisement of all prisoners, regardless of the nature of their offence or sentence, was found to be disproportionate and incompatible with this fundamental constitutional principle. Heydon J dissented, finding the provisions valid.
The Court answered the first question in the Special Case in the affirmative, declaring sections 93(8AA) and 208(2)(c) of the *Electoral Act* invalid. The Court also ordered that the plaintiff receive one half of her costs of the amended special case. The majority's decision meant that the previous provisions, which disenfranchised only prisoners serving sentences of three years or longer, were revived and remained in force.
Orders
Orders of the court
The questions stated in the Amended Special Case filed on 9 July 2007 be answered as follows:
Q (1). Are ss 93(8AA) and 208(2)(c) of the Act, and s 221(3) of the Act to the extent that it gives effect to these provisions, invalid because they are contrary to ss 7 and 24 of the Commonwealth Constitution?
A. Sections 93(8AA) and 208(2)(c) of the Act are invalid.
Q (2). Are ss 93(8AA) and 208(2)(c) of the Act, and s 221(3) of the Act to the extent that it gives effect to these provisions, invalid because they are beyond the legislative power of the Commonwealth conferred by ss 51(xxxvi) and 30 of the Constitution and any other head of legislative power?
A. Unnecessary to answer.
Q (3) Are ss 93(8AA) and 208(2)(c) of the Act, and s 221(3) of the Act to the extent that it gives effect to these provisions, invalid because they are contrary to:
(i) The freedom of political communication implied in the Constitution; or
(ii) A freedom of participation, association and communication in relation to federal elections implied in the Constitution?
A. Unnecessary to answer.
Q (3A) If the answer to question 1, 2 or 3, is "yes", are ss 93, 109, 208 and 221(3) of the Act as in force prior to the amendments (including repeals and substitutions) made to those and related provisions by the Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Act 2006 (Cth), s 3 and Sched 1, items 3, 4, 13, 14, 15, 50, 61 and 62 in force and valid?
A. The provisions listed in the question are in force and valid.
Q (3B) If the answer to question 3A is "no", are ss 93 and 109 of the Act as in force prior to the amendments (including repeals and substitutions) made to those and related provisions by the Electoral and Referendum Amendment (Prisoner Voting and Other Measures) Act 2004 (Cth), s 3 and Sched 1, items 1-5 in force and valid?
A. Question 3B postulates a relevant distinction between the text of the Electoral and Referendum Amendment (Prisoner Voting and Other Measures) Act 2004 (Cth) and the Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Act 2004 (Cth), but, given the answer to question 3A, unnecessary to answer.
Q (3C) If the answer to question 3B is "no", are ss 93 and 109 of the Act as in force prior to the amendments (including repeals and substitutions) made to those and related provisions by the Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Act 2004 (Cth), s 3 and Sched 1, items 6, 7, 46, 71 and 95 in force?
A. Question 3C postulates a relevant distinction between the text of the Electoral and Referendum Amendment (Prisoner Voting and Other Measures) Act 2004 (Cth) and the Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Act 2004 (Cth), but, given the answer to question 3A, unnecessary to answer.
Q (4) Who should pay the costs of the special case?
A. The plaintiff should have one half of her costs of the amended special case.
Q (5) Should the Court grant the plaintiff the relief claimed in paragraph 1 of the application for an order to show cause, namely a declaration that ss 93(8AA) and 208(2)(c) of the Act are invalid and of no effect?
A. Unnecessary to answer, given the answer to question 1.
(Joint judgment of Gummow, Kirby and Crennan JJ; Gleeson CJ, delivering a separate Judgment and joining in the majority's orders; Heyne J, rather than answering a series of questions would have answered the fifth question stated as:
"Q. Should the Court grant the Plaintiff the relief claimed in paragraph 1 of the application for an order to show cause, namely a declaration that ss 93(8AA) and 208(2)(c) of the Act are invalid and of no effect?
A. No. None of ss 93(8AA), 208(2)(c) or 221(3) is invalid." and would find it unnecessary to answer any of the other questions stated in the Amended Special Case except question 4 and would have answered that question: "The plaintiff".; Heydon J agreed with the reasons and responses of Hayne J, with additional reasons)
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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