Roach v Electoral Commissioner

In *Roach v Electoral Commissioner*, the High Court of Australia considered the validity of amendments to the *Commonwealth Electoral Act 1918* (Cth) that prohibited persons serving any sentence of imprisonment from voting in federal elections. The plaintiff, a prisoner, challenged the constitutional validity of these provisions, arguing they were inconsistent with the representative government principles enshrined in the Constitution. The Electoral Commissioner defended the amendments, asserting Parliament's power to prescribe electoral qualifications.

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.