Prisoners - Legal Information Access Centre - NSW Government

cAse sTudy – rOAcH v AusTrAliAn elecTOrAl cOmmissiOn
the 2004 and 2006 prisoner disenfranchisement legislation was challenged in the australian high court in June 2007
by Vickie Lee Roach an indigenous woman prisoner in Victoria. 89 Vickie Roach has completed a Masters degree in
prison, is hoping to start a phD and is active in prison based education programs and in mentoring other prisoners
over political and governmental issues affecting them. in an open letter read on aBc Radio national’s The Law Report
she wrote:
the one inescapable fact is that at any given time there are approximately 20,000 prisoners in this country,
and 99% of these will be released eventually. For most of us, re-entry to society will come sooner rather than
later. For many, during the term of whichever government will be elected later this year. excluding us from the
democratic process while we are in prison, however short our stay might be, implies we have forfeited our right to
political participation, not just for the duration of our term of imprisonment, but for however long it might be until
any subsequent election. i believe this serves only to further alienate us from society and ensures that the exiting
prisoner feels no connection, commitment, or loyalty to his or her community, and may therefore not feel bound to
respect its laws or social mores.
the human Rights Resource centre based in Melbourne organised a team of pro bono lawyers to work on the case. 90
the two key arguments were:
1. that the 2006 amendments disenfranchising all serving prisoners were incompatible with sections 7 and 24
of the australian constitution which provides that the senate and house of Representatives shall be directly
chosen ‘by the people’; and
2. that the disenfranchising provisions were invalid as contrary to either the implied freedom of political
communication, or the freedom of participation, association and communication implied in the constitution.
the high court by majority upheld Vickie Roach’s case on the first argument, without deciding the second. the court
held that the 2004 act, with its prisoner voting disqualification limited to prisoners serving sentences of three years
or more, was valid.
chief Justice gleeson argued 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. that, however, leaves open for
debate the nature and extent of the exceptions. the constitution leaves it to parliament to define those exceptions,
but its power to do so is not unconstrained.’ section 44 of the constitution, which deals with the disqualification of
senators and members of the house of Representatives, disqualifies a person convicted and under sentence for ‘one
year or longer’. the prisoner disenfranchisement legislation attempted to impose stricter standards on the eligibility
to be a voter than the constitution imposes upon eligibility to be a politician.
in nsW, short term sentences account for some 65% of all prison sentences in one year. also, other options such as
non-custodial sentences are limited in rural and regional areas. so, according to chief Justice gleeson, using the fact
of imprisonment as the criterion for disqualification from voting, ‘becomes arbitrary’. (para 23)
While the Roach case was an important victory for prisoners and their supporters, the decision is limited.
the argument based on the implied freedom of participation, association and communication was not decided 91
and the 2004 legislation disenfranchising those serving sentences of three years or more was upheld. this meant
that the plaintiff, Vickie Lee Roach, whose sentence was five years, was still unable to vote at the october 2007
federal election.
89. Roach v Electoral Commission [2007] HCA 43, 26 September 2007; available at http://www.austlii.edu.au/au/cases/cth/HCA/2007/43.html
90. For an account of the hearing see D Brown, ‘The Disenfranchisement of Prisoners: Roach v Electoral Commission & Anor – modernity v
feudalism’ 32:3 Alternative Law Journal September 2007,132-7.
91. On the importance more generally of listening to the voices of prisoners see D Brown, ‘Giving Voice: The Prisoner and Discursive Citizenship’
in The Critical Criminology Companion, T Anthony and C Cunneen (eds) Hawkins Press: Sydney 2008, pp 228-239.
prisoners as citizens 21