Roach v Electoral Commissioner (2007): Protecting prisoners’ right to vote | VCE Legal Studies case study
Task: Write about a case relating to the preservation of human rights in the form of a news article.
On the 26th of September 2007, the High Court released its decision to overrule the Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Act 2006, in favour of the plaintiff, Vicki Lee Roach. The 2006 act aimed to stop prisoners serving any length of a sentence in jail from voting while incarcerated and was deemed ‘unconstitutional’ by the court as it opposed the implied freedoms of political communication, participation, association, and communication in the Australian Constitution. Roach also challenged the Electoral and Referendum Amendment (Prisoner Voting and Other Measures) Act 2004, which prevents prisoners serving sentences of three or more years from voting in elections; however, this was unsuccessful, and the Act still stands.
The plaintiff, Roach, challenged the 2006 Act on the basis that it was incompatible with sections 7 and 24 in the Australian Constitution.
Section 7: The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate.
Section 24 (extract): The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of the senators.
Roach’s legal team contended that the phrase, ‘the people,’ while undefined, was intended to be as broad and encompassing as possible, and the only valid reason for limiting voting rights was due to lack of mental capacity, which does not apply to most prisoners. Roach’s legal team stated that the ‘government had acted unlawfully and unconstitutionally when it imposed the blanket ban on prisoners voting.’ Both Sections 7 and 24 of the Australian Constitution were found to contain an implied right to political participation and voting. Therefore, the Act contravened the prisoners’ process of participation as an elector of government. In this case, the High Court had to determine who ‘the people’ includes, and if it is valid to exclude certain people.
Roach’s legal team also argued that people serving three years or less in jail are unlikely to have committed serious crimes, so there is no valid reason to disqualify them from voting. In addition, some people may be imprisoned because they are not eligible for noncustodial sentences due to personal characteristics such as poverty, homelessness, location, or mental problems. This means that mere imprisonment does not indicate serious crimes to the point where the individual should be excluded from voting.
Speaking about the case, Human Rights Law Resource Centre (HRLRC) director Philip Lynch said “we say that the… only rational and legitimate basis upon which the franchise (voting rights) can be limited under the constitution is based on the person’s (mental) capacity. Prisoners, generally speaking, have that capacity.”
In a 4–2 decision, the 2006 amendment was deemed unconstitutional by the High Court. However, Roach was unsuccessful in overturning the 2004 Act. It was upheld as the Australian Constitution allows a voter’s right to be limited for a ‘substantial reason,’ and that the limitation must be ‘appropriate and adapted.’ As a result, half of Roach’s legal costs were paid for.
The landmark case played a significant precedent role in future cases as it solidified the validity of amendments to the Commonwealth Electoral Act 1918 (Cth) concerning the Constitution by establishing the fundamental human right to a vote, as a freedom given to all, with few exceptions.
“The decision of the High Court is a victory for representative democracy, accountable government, the rule of law and fundamental human rights,” said Mr Lynch.
“With Aboriginal Australians incarcerated at a rate of almost 13 times that of their fellow Australians, it is also a vindication of Aboriginal rights.”
Plaintiff profile
Vickie Lee Roach is a 49-year-old Indigenous woman and the plaintiff in the High Court challenge. Removed from her mother at the age of two and placed into foster care, Roach engaged in illegal activities as a teenager and adult and amassed 125 convictions in twenty-three court appearances. In 2004, she crashed her car into another vehicle during a police pursuit, causing severe burns and trauma to the other driver, and was sentenced to a six-year prison term. During her time in prison, Roach turned her life around, becoming a model prisoner and earning a Master’s degree in professional writing. She was considered a “peer educator” at the Dame Phyllis Frost Centre, where she served her sentence. She has written a novel and poetry and is currently studying for a PhD. Due to the length of her sentence, she was still unable to vote in the 2007 federal election. Her senior counsel, Ron Merkel, likened Roach to Eddie Mabo in this aspect because she has helped establish the right to vote for other prisoners but could not reap the reward.
Mr Lynch described Roach as “very interested and committed to prisoners’ rights and political participation, and particularly the rights of Indigenous people,” and “a woman of great courage, integrity and intellect.”.
Roach’s story brings to light the possible flaws in the legal system that disproportionately incarcerates Indigenous people. Indigenous Australians make up only 1 per cent of the population but constitute 30% of all inmates (ABS, 2021). Therefore, the electoral change resulted in the disproportionate silencing of Australia’s Indigenous people and reduced their overall political participation. Roach’s turbulent childhood and adolescence that lead to her being in and out of prison highlight the lack of support received by the Aboriginal community, and how the prison system punishes more than rehabilitates people. This is encapsulated by Roach’s statement to the public via her lawyer:
“This case stands for the principle that Aboriginal people and prisoners are human beings, that they don’t lose their humanity because of their imprisonment, and that they should not be excluded from the community or denied the ability to have their say.”
References
- Australian Constitution Centre n.d., Democracy — The Right to vote survives incarceration, Australian Constitution Centre.
- High Court of Australia, Cj, G, Gummow, Kirby, C & Jj 2007, ROACH V ELECTORAL COMMISSIONER.
- Human Rights Law Centre 2010, High Court Recognises that Constitution ‘Embeds’ a Right to Vote and a ‘Fully Inclusive Franchise’ in Landmark Constitutional Case, Human Rights Law Centre.
- Jade n.d., BarNet Jade, jade.io, viewed 9 November 2022, <https://jade.io/j/?a=outline&id=204286 >.
- Lawgovpol 2014, Case study: Vickie Lee Roach, lawgovpol.com.
- Nguyen, K. (2007). Prisoner goes to High Court to win right to vote. [online] The Age. Available at: https://www.theage.com.au/national/prisoner-goes-to-high-court-to-win-right-to-vote-20070425-ge4qo8.html.
- Nicol, E. (2022). How an incarcerated Yuin woman took on the Electoral Commission and won. [online] NITV. Available at: https://www.sbs.com.au/nitv/article/how-an-incarcerated-yuin-woman-took-on-the-electoral-commission-and-won/1uzzy625f.
