Roach v Electoral Commissioner (2007) 233 CLR 162 Topic: Implied Right to Vote

Gleeson CJ

Gummow, Kirby and Crennan JJ The right to vote is extinguished and returned to them following their sentence. S93(8AA) does not consider the subjective nature of the offence.

Used Sue v Hill to demonstrate social progress over the perception of the Constitution. Since the UK was originally not deemed as a foreign power and because of Sue v Hill, it was declared a foreign power, therefore directing focus onto the progress of voting.

Hayne J Focused on the meaning of directly chosen by the people. What are the actual limitations on these words? These words may change over time.

Legislative history = there is a constitutional protection to vote in regards to S7 and 24 of the Constitution. Parliament has the discretion to define those exceptions, but its power to do so is not unconstrained.

Significance of Judgment Upheld the validity of S93(8AA) of the Commonwealth Electoral Act 1918 (Cth). Gummow, Kirby and Crennan JJ applied the purpose and proportionality test.

Since Parliament has this power to define those exception, this leads onto the issue of the Commonwealth prohibiting franchise from certain people including those of unsound mind and those convicted of

treason. Stated that prisoners do have a right to vote because: No correlation between voting and conviction of a crime. Prisoners are under state law, therefore the duty of state administration has no bearing upon federal franchise. Prohibition of voting for prisoners is a deprivation of their right to citizenship. Purpose

Purpose and Proportionality Purpose of the restriction must be clearly identified and appropriate. The limitation also must be proportionate.

Purpose in this case = came from a rationale that the offence and their imprisonment is related to their right to participate in political membership of the community.

Proportionality The net of disqualification was seen to wide by s93(8AA).