The case of Roach v Electoral Commissioner [2007] HCA 43 established that the Constitution of Australia guarantees its citizens a right to vote, because it is implied in the principle of representative government.

Facts

Before 2006, prisoners serving three or more years in prison were banned from voting. However, in 2006, the Howard government passed the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act. This Act stated that any person serving a prison term would not be allowed to vote. Vickie Lee Roach, who was serving a prison sentence, challenged this law, arguing that it was unconstitutional.

Issues

Did the Constitution guarantee a right to vote?

Decision and impact

The High Court held that the structural protection of representative government, outlined in the Constitution, does guarantee a right to vote. Sections 7 and 24 state that governments will be chosen by the people. Chief Justice Gleeson stated that, if some people did not have the right to vote, the government would not be chosen by the people.¹

Therefore, this structural protection implied a right to vote.

However, the judges also agreed that removing the right to vote for prisoners serving more than three years was acceptable, as those prisoners forfeited their rights.²

See also:

Representative Government (structural protection)

Structural protections

1. Peter O’Donahoo and Peter Haig, ‘High Court Strikes Down Commonwealth Legislation Disqualifying Prisoners from Voting’, Focus (October 2007)  ↩

2. David Guttman, ‘Roach v Commonwealth: Is the Blanket Disenfranchisement of Convicted Prisoners Unconstitutional?’ (2007) 29 Sydney Law Review 297 ↩