High Court of Australia

Roach v Electoral Commissioner [2007] HCA 43

233 CLR 162; 81 ALJR 1830; 239 ALR 1

26 Sep 2007

Case Number: M19/2007

Before

Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan JJ

Catchwords

Constitutional law (Cth) – Legislative power - Franchise - Before amendment by the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth) ("the 2006 Act"), the Commonwealth Electoral Act 1918 (Cth) ("the Electoral Act") prohibited a person serving a sentence of imprisonment of three years or longer from voting at an election for a House of the Commonwealth Parliament ("the three-year provisions") - The 2006 Act amended the Electoral Act to prohibit a person serving any sentence of imprisonment from voting - Whether ss 93(8AA) and 208(2)(c) of the Electoral Act, as amended by the 2006 Act, were invalid - Whether a law disenfranchising prisoners was a law with respect to the "qualification of electors" within the meaning of ss 8, 30 and 51(xxxvi) of the Constitution.

Constitutional law (Cth) – Legislative power - Representative government - Constitutional limitations upon the power of Parliament to prescribe the franchise - Whether ss 93(8AA) and 208(2)(c) of the Electoral Act, as amended by the 2006 Act, were compatible with the system of representative government established by ss 7, 24 and 128 of the Constitution - Relevance of s 44(ii) of the Constitution - Relevance of constitutional history - Relevance of the franchise of colonial legislatures.

Constitutional law (Cth) – Legislative power - Representative government - Whether disenfranchisement of persons serving a sentence of imprisonment was appropriate and adapted to serve an end which was consistent or compatible with the constitutionally prescribed system of representative government - Whether the three-year provisions were appropriate and adapted to that end - Relevance of prisoner culpability - Relevance and scope of legislative and political choice concerning the disenfranchisement of all prisoners serving any sentence of imprisonment.

Constitutional law (Cth) – Legislative power - Franchise - Whether a federal law disenfranchising prisoners convicted under State law was invalid - Whether a sentence of imprisonment for an offence against the law of a State was a valid factum for the operation of federal law.

Constitutional law (Cth) – Legislative power - Freedom of political communication - Whether participation as an elector amounted to political communication - Whether ss 93(8AA) and 208(2)(c) of the Electoral Act, as amended by the 2006 Act, burdened the freedom of political communication.

Statutes – Construction – Amendment and repeal – Whether the invalidity of provisions amended by the 2006 Act left intact the repeal of the three-year provisions – Whether the three-year provisions continued in force.

Words and phrases – "directly chosen by the people", "elector", "franchise", "qualification of electors", "reasonably appropriate and adapted", "representative government".

Constitution – ss 7, 8, 24, 30, 44(ii), 51(xxxvi), 122, 128.

Commonwealth Electoral Act 1918 (Cth) – ss 93(8), 93(8AA), 208(2)(c).

Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth) – Items 14, 15 and 61 of Sched 1.
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