Roach v Electoral Commissioner

26 September 2007

The Australian Constitution requires that members of Parliament be ‘directly chosen by the people.’ It does not say who can vote or how elections should be run. Parliament decides these details by making laws about federal elections. In 2006, the Australian Parliament passed a law that banned all prisoners from voting in federal elections.

This law was challenged in the High Court of Australia by Vickie Lee Roach, a Yuin woman who was serving a prison sentence at the time. Roach argued that the ban excluded prisoners from the democratic process and had a particularly significant impact on Aboriginal and Torres Strait Islander peoples.

The Court considered whether the law made by Parliament was consistent with the principles of representative democracy in the Constitution. The High Court found that the Constitution implies a right to vote, and that this right can only be removed for a substantial reason. Because the law banned all prisoners from voting, the Court found it was unconstitutional. However, it upheld an earlier law that prevented prisoners serving sentences of 3 years or more from voting, as this was considered a reasonable limit.

This case confirmed that the right to vote has constitutional protection, but Parliament can place reasonable limits on that right.