The right to vote (also called suffrage or the franchise) is considered a fundamental right in democratic societies. The right to vote is not completely universal, however, because some individuals are denied it, including minors, some prisoners and the intellectually disabled. When governments legislate to change voting rights, whether to expand or restrict them, there is always intense scrutiny of this change and its potential impact. In 2006 the Australian Federal government, then led by prime minister John Howard and the Coalition, legislated to change the franchise by passing the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act. One of its changes was to remove the right to vote from anyone serving a prison term of any length. Those on remand, parole or periodic detention were not affected, only prisoners serving a prison sentence. Before this law reform, only prisoners serving a prison term of three or more years were excluded from voting. According to some experts, this change to electoral laws disenfranchised up to 8,000 Australians.
Vickie Lee Roach was a prisoner when the Electoral and Referendum Amendment Act passed Federal Parliament. An indigenous woman, Roach was removed from her mother at age two and placed in foster care. She became a delinquent in her teenage years then in adulthood a career criminal, receiving 125 convictions in 23 court appearances. The most recent of these was in 2004, after Roach crashed her car into another vehicle during a police pursuit. The driver of the other car suffered severe burns and trauma. Roach was later convicted and sentenced to a five year prison term. Roach overcame her checkered past and became a model prisoner, earning a Masters degree in professional writing. While there was little doubt that Roach was intelligent and intellectually equipped to vote, she was denied the opportunity to do so because of her status as a prison inmate.
With help from the Human Rights Law Resource Centre (HRLRC) Roach became the subject of a High Court challenge. This challenge contended that both the Howard government’s amendment and the original electoral act were invalid. Among the arguments put forward by Roach’s legal team were that:
The constitutional phrase ‘the people’ was intended to be as broad and encompassing as possible, not something to be defined by the government of the day. Four High Court Justices agreed that the Constitution contains implied universal suffrage, as well as implied freedoms of political communication and participation. HRLRC director Phillip Lynch, said that “…the only rational and legitimate basis upon which the franchise can be limited under the constitution is on the basis of the person’s [mental] capacity. Prisoners, generally speaking, have that capacity.”
Underpinning this was an argument that the Constitution contains an implied right to political participation and voting. Roach’s lawyers claimed the legislation breached Sections 7 and 24 of the Constitution; these sections outline the composition of the Senate and the House of Representatives respectively, stating that each must be “directly chosen by the people”. Indigenous Australians are disproportionately represented in prisons: they constitute just one per cent of the population but make up 22 per cent of inmates. The electoral change therefore resulted in disproportionate disenfranchisement Australia’s indigenous people, silencing their political voice. This was itself not a constitutional argument but a clear example of how a potentially unconstitutional law may impact on both the population and the formulation of government.
In a 4-2 decision the High Court ruled that the Howard government’s 2006 amendment was unconstitutional. This returned electoral legislation to its previous state and restored the voting rights of prisoners who were serving terms of three years or less. The court did not invalidate the original act, however, determining that the act of removing an individual’s voting rights for serious misconduct was constitutionally valid. So while Roach’s case was partly successful it did not restore her own right to vote, since her original term was greater than three years. As a consequence Vickie Lee Roach was not eligible to vote in the 2007 federal election that removed John Howard and his government from office.