Prisoners and the Right to Vote: Roach v AEC and Commonwealth of Australia

On 5 March 2007, the Centre commenced legal action in the High Court to challenge the constitutionality of legislation which removed the right of all sentenced prisoners to vote in federal elections. The plaintiff in the matter was Vickie Roach, an Aboriginal prsioner at the Dame Phyllis Frost Centre in Deer Park.  The defendants were the Commonwealth of Australia and the Australian Electoral Commission.

The matter was heard by a Full Court of the High Court in Canberra on 12-13 June 2007.

The Centre was being provided with very substantial pro bono assistance in this case by Allens Arthur Robinson, Ron Merkel QC, Michael Pearce SC and Fiona Forsyth and Kristen Walker of Counsel.

The prisoner disenfranchisement provisions of the Commonwealth Electoral Act 1918 were challenged on the grounds that they are:

  • contrary to ss 7 and 24 of the Constitution, which require that the Senate and the House of Representatives be ‘directly chosen by the people’;
  • beyond the legislative powers of the Commonwealth;
  • inconsistent with the implied rights to freedom of political participation and communication and not reasonably appropriate or adapted to a legitimate end; and
  • incompatible with Chapter III of the Constitution in that they amount to punishment.

The case raised major issues as to prisoners’ rights, Indigenous rights, the right to vote, representative democracy and responsible government.

On 30 August 2007, in a landmark decision, the High Court upheld the fundamental human right to vote, finding that the Howard Government had acted unlawfully and unconstitutionally in imposing a blanket ban denying prisoners the vote.  The Court upheld the validity, however, of the law providing that prisoners serving a sentence of three years or longer are not entitled to vote.

On 26 September 2007, the High Court delivered its reasons for judgment.  By majority, the Court held that sections 7 and 24 of the Constitution, which require that the Houses of Parliament be 'directly chosen by the people', enshrine the right to vote and that this right may only be limited for a 'substantial reason'.  Furthermore, the limitation must be 'appropriate and adapted' (or 'proportionate') to that reason.

The decision of the High Court is a victory for representative democracy, accountable government, the rule of law and fundamental human rights.  With Aboriginal Australians incarcerated at a rate of almost 13 times that of their fellow Australians, it is also a vindication of Aboriginal rights.

The following key documents are available for download:

  1. Summons dated 5 March 2007;
  2. Application for an Order to Show Cause;
  3. Outline of Plaintiff's Submission on Application to Show Cause;
  4. Affidavit of Vickie Lee Roach dated 5 March 2007;
  5. Exhibit to Affidavit of Vickie Lee Roach dated 5 March 2007;
  6. Written Submissions of the Plaintiff dated 9 May 2007;
  7. Plaintiff's Written Submissions in Reply dated 4 June 2007;
  8. Transcript of 12 June 2007;
  9. Transcript of 13 June 2007;
  10. Orders of the High Court dated 30 August 2007; and
  11. Reasons of the High Court dated 26 September 2007.

Below are hyperlinks to a selection of media articles on the case:

  1. Michael Kirby, 'Prisoners' Vote is the Australian Way', Australian Financial Review, 5 October 2007
  2. Laura McIntyre and Ben Schokman, 'Prisoners Win Right to Vote' (2007) 81(1) Law Institute Journal 80
  3. Karen Kissane, 'Court Reverses Prisoner Vote Ban', The Age (Melbourne), 31 August 2007
  4. Karen Kissane, 'Former Delinquent Takes on Federal Government and Wins', The Age (Melbourne), 31 August 2007
  5. Editorial, 'The Right Decision for Democracy', The Age (Melbourne), 31 August 2007
  6. Jonathan Pearlman, 'Court Gives Vote Back to Some Inmates', Sydney Morning Herald (Sydney), 31 August 2007
  7. Michael Pelly and Paul Maley, 'Prisoners Regain Right to Have a Say', The Australian, 31 August 2007
  8. ‘Prisoner Goes to High Court to Win Right to Vote’, The Age (Melbourne), 24 April 2007
  9. ‘Woman to Challenge Prisoner Vote Ban’, The Age (Melbourne), 12 June 2007
  10. ‘Prisoners Call for Voting Rights’, ABC Radio PM, 11 June 2007
  11. ‘Should Prisoners Be Allowed to Vote?’, ABC Radio National Law Report, 12 June 2007
  12. ‘Jail No Bar to Rights’, Courier-Mail (Brisbane), 3 May 2007
  13. ‘Prisoner Challenges Jail Vote Ban’, News.com.au, 25 April 2007
  14. ‘Prisoner Mounts High Court Challenge Over Voting Rights’, ABC News, 12 June 2007

There have been a number of academic articles written about the decision, including:

  1. David Brown, 'The Disenfranchisement of Prisoners: Roach v Electoral Commissioner & Anor - Modernity v Feudalism' (2007) 32 Alternative Law Journal 132
  2. David Guttman, 'Roach v Commonwealth: Is the Blanket Disenfranchisement of Convicted Prisoners Unconstitutional?' (2007) 29 Sydney Law Review 297
  3. Peter O'Donahoo and Peter Haig, 'High Court Strikes Down Commonwealth Legislation Disqualifying Prisoners from Voting', Focus (October 2007)