Roach v Electoral Commissioner & Anor

[2007] HCATrans 273

[2007] HCATrans 273

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M19 of 2007

B e t w e e n -

VICKIE LEE ROACH

Plaintiff

and

ELECTORAL COMMISSIONER

First Defendant

and

COMMONWEALTH OF AUSTRALIA

Second Defendant

Summons for direction

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO CANBERRA

ON TUESDAY, 5 JUNE 2007, AT 11.31 AM

Copyright in the High Court of Australia

MR R. MERKEL, QC:   If your Honour pleases, I appear with MS F.K. FORSYTH for the plaintiff.  (instructed by Allens Arthur Robinson)

MR P.R.D. GRAY:   May it please the Court, I appear the first defendant.  (instructed by Australian Government Solicitor - Melbourne)

MS L.G. DE FERRARI:   May it please the Court, I appear for the second defendant.  (instructed by Australian Government Solicitor – Canberra (Barton) Office)

MS K.M. RICHARDSON:   If the Court pleases, I mention the matter on behalf of Western Australia and I also appear on behalf of the Attorney‑General for New South Wales, intervening.  (instructed by State Solicitor’s Office (WA) and Crown Solicitor’s Office (NSW))

HIS HONOUR:   Yes.  The reason I have entered the matter for this hearing is limited.  It is my wish to raise three matters with the parties.  None of them is a matter in which it would seem to me necessary, perhaps not even appropriate, that the parties make any response immediately but it is better that these matters which are provoked by a reading of the written submissions are dealt with at this stage before the matter hits the Full Court rather than have the parties’ attention drawn to them at some later point.

The first is a matter that might conveniently be regarded as touched upon, perhaps raised by paragraph 38 of the plaintiff’s principal written submission where there is set out the successive provisions that have been made, first in the 1902 Act and then by subsequent legislation, dealing with the franchise for persons who are convicted and under sentence for certain forms of offence.

It provokes two related questions. As I say, it would be neither necessary, nor, I think, appropriate to make any response to the question immediately, but if the plaintiff were to succeed in the challenges which she makes to the validity of the provisions now standing in the Act what is the immediate consequence? Is the consequence that there is then said by the plaintiff to be no provision of the electoral legislation which deals with franchise for persons who are under imprisonment? Is it that the former law, or the law as it formerly stood, would survive? That is perhaps a particular set of questions which in turn would yield this question. Under some versions of the federal law relating to disqualification from enrolment – I may be right or may be wrong – I think you might have got to a position where a person could be eligible to stand for election under section 44(i) but be ineligible to vote.

That may, that may not present a set of questions which concern the place to be given to section 44(i) of the Constitution and the relationship between the place thus identified and whatever legislative provision is made about disqualification of prisoners. Those are questions which, I think, may not be addressed certainly at any length in the written submissions but they are questions that the parties may at least wish to turn over in their minds against the possibility that when the matter comes to a Full Court somebody wants to understand what the parties’ submissions are about the significance to be attached to 44(i). That is one set of questions.

The second set of questions is provoked by what is said in paragraph 30 of the Electoral Commissioner’s submissions.  So, the written submissions of the first defendant of 23 May 2007, paragraph 30 says, amongst other things that:

An elector is entitled to vote only for Senators in the State or Territory in which the elector is enrolled.

It then goes on to discuss the way in which those provisions are said to be engaged and concludes in this way that:

Apart from -

certain persons whom the paragraph identifies -

the electoral rolls in force at the time of an election are conclusive evidence of the right to vote of each person enrolled:  s 221.  The Special Case raises no question as to the validity of s 221(3).

Again, my first impression is that that proposition, namely, that the special case raises no question as to the validity of 221(3) is right, but at least the manner of expression adopted in paragraph 30 of the written submissions of the first defendant provoked in the mind of at least some who read it that we would not wish there to emerge some question about validity of 221(3) in the course of running.

So, the plaintiff may wish to give some thought to whether anything follows from the way in which paragraph 30 of the Electoral Commissioner’s submissions read and are presented, in particular, whether there is any occasion to give further thought to some wider question of validity.  I am not to be taken as saying that there is, all I am taken to be saying is I would rather people thought about it now rather than later when the matter is running in the Full Court.

The final set of matters I would raise concerns United States authority.  I see what is said, particularly in the plaintiff’s submissions, about the utility of United States authority.  I have in mind particularly footnote 9 to the principal submissions of the plaintiff with its reference to Richardson v Ramirez 418 US 24. In that regard, I note it that issues not unconnected with those considered in Ramirez were considered in Hunter v Underwood 471 US 222.

I notice, also, that there is a deal of writing on the subject of the disenfranchisement of felons or ex‑felons – to adopt the American expressions – including analysis of what the position is in the states of the United States.  Two of those references - no doubt there are many others – include 115 Harvard Law Review at 1939, which is part of an extended note on developments in the law of prisons.  There is an earlier article entitled “The Disenfranchisement of Ex‑Felons:  Citizenship, Criminality, and ‘the Purity of the Ballot Box’” (1989) 102 Harvard Law Review 1300 and there is reference in particularly the article in 115 Harvard Law Review to other experience in other jurisdictions.  So, for example, apparently in 84 Minnesota Law Review 753 there is to be found an article entitled “Continuing payment on One’s Debt to Society:  The German Model of Disenfranchisement as an Alternative”.  Germany, of course, as a federal state, may in some respects offer learning that may – it may not – be of utility in consideration of our federal law.

Now, as I say, my purpose in raising these matters is so that the parties may be on notice of them before the hearing commences.  I do not expect the parties to make any submission or any comment in response to what I have said.  All I have done is attempt to give some notice in order that the hearing next Tuesday might proceed perhaps a little more smoothly than otherwise would have been the case.  All that said, Mr Merkel, do you want to say anything?

MR MERKEL:   Just two things, your Honour.  Your Honour, I hope will have seen in the papers a proposed amendment to the special case.

HIS HONOUR:   Yes.

MR MERKEL:   If it is convenient for your Honour to deal with that now or whether the Full Court needs to deal with it - it is by consent, your Honour.

HIS HONOUR:   I understand that.  I thought that having referred it into the Full Court it was probably better that I leave it over to the Full Court.  It is not my case, it is the parties’ case, and I have referred it into the Full Court. so I thought probably leave it there.

MR MERKEL:   Thank you, your Honour.  The second matter is that we have considered this question of what would be the situation with prisoners if we succeed and we did not – we awaited the Commonwealth’s response, in a sense, to see whether they wished to say the matter would have to go back to Parliament or whether the repeal of the earlier provisions would fall with the impugned provisions and we did not get any indication that the Commonwealth was contending for a fallback position, your Honour.  All I can say is we would be assisted if – and I am not expecting that to happen now, but if I can state that it would be of assistance to us and no doubt to the Court - the Commonwealth’s position on that were clarified because there are difficulties.

HIS HONOUR:   I think it may also be a matter for the plaintiff to nail her colours to one mast, may it not, Mr Merkel, about what she says the consequence is, but that is simply a possible point of view.

MR MERKEL:   Yes.  I can understand it could apply both ways, your Honour, but thank you for the indications, your Honour.  They will exercise our mind between now and Tuesday.

HIS HONOUR:   Does anybody at the other end of the video link wish to say anything in response to what I have said?

MR GRAY:   Not at this point on behalf of the first defendant, your Honour.

HIS HONOUR:   Yes, thank you, Mr Gray.

MS DE FERRARI:   No, your Honour.

HIS HONOUR:   Thank you, Ms de Ferrari.

MS RICHARDSON:   There is a general chorus of naysaying from the other end, then.

MR MERKEL:   Your Honour, there is one point just of clarification for the transcript. I think your Honour had mentioned 44(i). I take it your Honour meant 44(ii) of the Constitution, a provision about eligibility for prisoners – for people convicted of offences.

HIS HONOUR:   Eligibility, yes.

MR MERKEL:   Yes, thank you, your Honour.

HIS HONOUR:   Yes, very well.  I will adjourn.

AT 11.45 AM THE MATTER WAS ADJOURNED