Roach v Australian Electoral Commissioner and the Commonwealth
On 26 September 2007, the High Court published reasons for its orders of 30 August 2007 in the matter of Roach v Australian Electoral Commissioner and the Commonwealth which invalidated amendments to the Electoral Act made in 2006. The amendments operated such that all prisoners serving a full-time sentence of detention were not entitled to vote at federal elections. By a 4-2 majority, the Court held that the amendments were unconstitutional.
The majority comprised Gummow, Kirby and Crennan JJ, with Gleeson CJ concurring in a separate judgment. Justices Hayne and Heydon dissented in separate judgments.
Gummow, Kirby and Crennan JJ
For the majority, the key issue was whether the 2006 amendments were inconsistent with the ‘system of representative and responsible government mandated by the Constitution’ ( and ), in particular by the requirements of ss 7 and 24 that the houses of parliament be ‘directly chosen by the people’. Discussing the relevance of voting to ‘representative government’, the majority stated at  –  that:
Voting in elections for the Parliament lies at the very heart of the system of government for which the Constitution provides…
Representative government as that notion is understood in the Australian constitutional context comprehends not only the bringing of concerns and grievances to the attention of legislators but also the presence of a voice in the selection of those legislators…[T]he existence and exercise of the franchise reflects notions of citizenship and membership of the Australian federal body politic. [Citations omitted]
The majority then considered the relevance and importance of representative government and the franchise to prisoners, concluding at  that:
Such notions are not extinguished by the mere fact of imprisonment. Prisoners who are citizens and members of the Australian community remain so. Their interest in, and duty to, their society and its governance survives incarceration.
The majority accepted that the right to vote, however, is not unlimited and stated that the test as to whether a legislative disqualification from adult suffrage is constitutionally permissible is whether the disqualification is for a ‘substantial reason’ . A reason will be ‘substantial’ if it is ‘reasonably appropriate and adapted to serve an end which is consistent or compatible with…representative government’ . According to the majority, the phrase ‘reasonably appropriate and adapted’, in this context, is very similar to the notion of ‘proportionate’, stating, ‘What upon close scrutiny is disproportionate or arbitrary may not answer to the description reasonably appropriate and adapted for an end consistent or compatible with observance of the relevant constitutional restraint upon legislative power.’ 
The majority then turned to consider whether the blanket disenfranchisement of prisoners was for a ‘substantial reason’ stating at :
The end served by the denial in s 93(8AA) of the exercise of the franchise by electors then serving a sentence of imprisonment…is further to stigmatise this particular class of prisoner by denying them during the period of imprisonment the exercise of the civic right and responsibility entailed in the franchise.
As to whether the disenfranchisement was ‘reasonably appropriate and adapted’ to that end, Gummow, Kirby and Crennan JJ concluded at  – :
Section 93(8AA) operates without regard to the nature of the offence committed, the length of the term of imprisonment imposed, or the personal circumstances of the offender…[T]here is long established law and custom, stemming from the terms of the institution in the Australasian colonies of representative government, whereby disqualification of electors (and candidates) was based upon a view that conviction for certain descriptions of offence evinced an incompatible culpability which rendered those electors unfit (at least until the sentence had been served or a pardon granted) to participate in the electoral process. That tradition is broken by a law in the terms of s 93(8AA) as such a law has no regard to culpability…
Having regard to these matters, the majority concluded at  that:
The legislative pursuit of an end which stigmatises offenders by imposing a civil disability during any term of imprisonment takes s 93(8AA) beyond what is reasonably appropriate and adapted (or ‘proportionate’) to the maintenance of representative government.
Having invalidated the 2006 amendments, the majority then considered the constitutionality of the thereby reinstated prior regime, pursuant to which prisoners serving sentences of three or more years were disqualified from voting. Upholding the validity of this regime, the majority stated at  that:
The three year provisions…of the 2004 Act differ in their nature from the 2006 Act. They operate to deny the exercise of the franchise during one normal electoral cycle but do not operate without regard to the seriousness of the offence committed as an indicium of culpability and temporary unfitness to participate in the electoral process. In that way the three year provisions are reflective of long established law and custom, preceding the adoption of the Constitution, whereby legislative disqualification of electors has been made on the basis of such culpability beyond the bare fact of imprisonment.
The Chief Justice concurred with the majority judgment for substantially similar reasons. Notably, his Honour held that ‘the words of ss 7 and 24, because of changed historical circumstances including legislative history, have come to be a constitutional protection of the right to vote’ . Similarly to the majority, he stated at  that:
Because the franchise is critical to representative government, and lies at the centre of our concept of participation in the life of the community, and of citizenship, disenfranchisement of any group of adult citizens on a basis that does not constitute a substantial reason for exclusion from such participation would not be consistent with choice by the people.
Turning to the issue as to what constitutes a ‘substantial reason’, the Chief Justice stated at  that:
An arbitrary exception would be inconsistent with choice by the people. There would need to be some rationale for the exception; the definition of the excluded class or group would need to have a rational connection with the identification of community membership or with the capacity to exercise free choice.
The Chief Justice then identified the rationale for excluding prisoners, stating at  that:
…since deprivation of the franchise takes away a right associated with citizenship, that is, with full membership of the community, the rationale for the exclusion must be that serious offending represents such a form of civic irresponsibility that it is appropriate for Parliament to mark such behaviour as anti-social and to direct that physical separation from the community will be accompanied by symbolic separation in the form of loss of a fundamental political right…Serious offending may warrant temporary suspension of one of the rights of membership, that is, the right to vote. Emphasis upon civic responsibilities as the corollary of political rights and freedoms, and upon society’s legitimate interest in promoting recognition of responsibilities as well as acknowledgment of rights, has been influential in contemporary legal explanation of exclusions from the franchise as consistent with the idea of universal adult suffrage.
Having regard to this, the Chief Justice accepted that the disenfranchisement of prisoners serving three or more years is valid because, overwhelmingly, such people have been convicted of serious offences. His Honour considered, however, that this rationale ‘breaks down at the level of short-term prisoners’, stating at  –  that:
They include a not insubstantial number of people who, by reason of their personal characteristics (such as poverty, homelessness, or mental problems), or geographical circumstances, do not qualify for, or, do not qualify for a full range of, non-custodial sentencing options. At this level, the method of discriminating between offences, for the purpose of deciding which are so serious as to warrant disenfranchisement and which are not, becomes arbitrary.
The step that was taken by Parliament in 2006 of abandoning any attempt to identify prisoners who have committed serious crimes by reference to either the term of imprisonment imposed or the maximum penalty for the offence broke the rational connection necessary to reconcile the disenfranchisement with the constitutional imperative of choice by the people.
Accordingly, the Chief Justice upheld the challenge to the validity of s 93(8AA), but affirmed the validity of the three year provisions (at  – ).
Hayne and Heydon JJ
In upholding the validity of the impugned legislation, Hayne J (with whom Heydon J agreed) interpreted s 30 of the Constitution, which permits the Commonwealth to legislate for the qualification of electors, as conferring upon the Commonwealth a broad power to determine which persons should be afforded the vote.
Justice Hayne considered that the drafting history of s 30, along with other textual indications, require that the expression ‘directly chosen by the people’ in ss 7 and 24 be seen as an expression of ‘generality’ that was ‘not intended to convey a requirement for universal adult suffrage’. Whereas the majority considered that social, political and legislative developments in the area of representative government since federation affected the scope of the Commonwealth’s power to set the franchise, Hayne and Heydon JJ considered that the drafting history ‘provides the only certain guide’. Accordingly, their Honours focused on various pieces of state legislation which, at federation, prescribed the qualification of electors for state parliaments. Justices Hayne and Heydon considered that this legislation, all of which excluded some prisoners from voting, as indicating the content that is to be given to the expression ‘directly chosen by the people’.
Their Honours rejected the notion that the content to be afforded to the expression ‘directly chosen by the people’ might be informed either by reference to ‘common understanding’ or ‘generally accepted Australian standards’. They also firmly rejected the notion that international human rights may be in any way relevant to constitutional interpretation, stating in response to the issue as to ‘whether it would be possible now to narrow the franchise on the basis of race, age, gender, religion, educational standards or political beliefs’ that ‘narrowing the franchise in any of these ways may be highly undesirable; it does not follow that it is unconstitutional’.
The High Court's decision not only has important consequences for those prisoners now able to vote in the upcoming federal election, but also provides a significant addition to the jurisprudence concerning the system of representative government mandated by the Constitution. The Commonwealth’s power to make laws affecting the extent of the franchise, as with laws affecting other fundamentals of our system of representative government, are subject to limitations. The majority decision in this case supports a view that these limitations, though derived from the text and structure of the Constitution, are themselves capable of evolution, including by reference to international and comparative human rights standards and jurisprudence.
The decision is available at http://www.austlii.edu.au/au/cases/cth/HCA/2007/43.html.
Philip Lynch is Director of the Human Rights Law Resource Centre. Peter O’Donahoo is a Partner and Peter Haig is a Lawyer with Allens Arthur Robinson. For a detailed analysis of the decision prepared by Allens Arthur Robinson, see http://www.aar.com.au/pubs/ldr/focloct07.htm.