Roach Case Note
...Roach considered the constitutionality of the expansive exception to universal suffrage created by section 93(8AA) of the Commonwealth Electoral Act 1918, as amended in 2006, which banned all prisoners from voting. The High Court, in a 4 to 2 decision1, concluded that section 93(8AA) was invalid because it was inconsistent with a constitutional freedom to vote afforded by ss7 and 24 of the Constitution as interpreted over time. The justices were also persuaded by s93(8AA)’s incongruity with s44 of the Constitution which provides a lesser standard of eligibility for prisoners seeking to be elected as members of parliament than for those banned from voting by section 93(8AA). Although it found s 93(8AA) invalid, the court did affirm the validity of the previous law which disenfranchised prisoners serving sentences of 3 years or more.
Gleeson CJ acknowledged parliament’s authority to legislate on this voting issue:
“The combined effect of ss51 (xxxvi), 8 and 3 is that Parliament may make laws providing for the qualification of electors.”2
He noted that the rule of suffrage was the result of legislation3. However, in deciding that parliament overstepped its authority, he relied on the language “directly chosen by the people” in ss7 and 24 of the Constitution. He found that the meaning of such language can evolve over time:
“the words of ss7 and 24 because of changed historical circumstances including legislative history, have come to be a constitutional protection of the right to vote.”4
The court highlighted the disharmony between s93(AA8) and s44 of the Constitution.5 A prisoner disqualified from voting by s93(AA8) is actually eligible under s 44 to be a senator or member of the House of Representatives provided his crime is punishable by a sentence of less than one year. Gleeson CJ found that s44 supported a...
View Full Essay
