Roach v. Electoral Commissioner [2010]
Who is the plaintiff in Roach v. Electoral Commissioner [2007]?
Plaintiff = the person bringing the case so Vickie Roach
What law types can protect the right to vote?
All/both - common & statute (plus the constitution)
What is a human right?
A human right is a freedom that should be afforded to all peoples regardless of any factor.
Who is the defendant in this case?
The electoral commissioner
What are the five express rights laid out by the constitution?
Right to fair acquisition of property by the government, right to freedom of thought/religion, right to not to discriminated against based on your state of residency, right to trade freely inter-state and right to a jury trial in federal (commonwealth) indictable offences.
Outline the process Roach went through in this case.
Roach was a person with standing, she sought legal representation to take her case to the high court where she (and her team) argued the unconstitutional nature of the law banning all prisoners to vote. The high court justices then made a decision based on the constitution that saw the blanket ban removed and the previous 3-year limit reinstated.
Who can't vote in Australia? (3 responses needed)
People who are of unsound mind, have committed treason, are under 18, are serving a 3+ prison sentence, not a citizen of Australia.
What is the VCHRR?
A law that outlines processes for members of parliament to consider human rights when creating new laws.
It lays out 20 human rights that the Vic Government believes should be protected within the law
Explain why this case came to the High Court.
Because Vickie's argument was that the law banning all prisoners from voting was unconstitutional - constitutional matters are taken straight to the High Court, they interpret the wording and make a decision.
What is the significance of the Universal declaration of human rights?
This document is agreed upon by the United Nations, its articles clearly outline the human rights that the member countries agreed should be given to all. This document supports a global consistency when it comes to understanding what human rights should look like for all humans.
True or False - The decision in this case meant that Vickie Roach got her right to vote back?
Explain why
False - she was serving a sentence longer than 3 years, making her ineligible to vote still.
How does common law protect the right to vote?
Common Law interprets the constitution (high court only) and makes decisions around the validity of existing laws to uphold the constitution.
Explain what structural rights are.
The systems and structures created by the constitution that indirectly protect human rights - these are the separation of powers and representative government.
What does it mean to be a person with standing? (Hint: Vickie Roach IS one in this case)
A person who has been impacted by the law that a case is seeking to argue is unconstitutional.
or, a person who's rights have been infringed by the outcome of a law being challenged in the High Court
The racial discrimination act 1975 (cth) creates what human rights protection(s)
The right against discrimination based on race, colour or ethnic origin in a number of factors, such as residential accommodation.
Explain why someone would want prisoners to have the right to vote.
- Protects the right for 1st nations people to vote
- protects the principle of representative government
- unconstitutional as it impacts implied right to political communication
- disengages prisoners from society further, leading to more offending
What federal (statute) law establishes the key 'rules' around who is eligible to vote/ and who is not and voting in general.
The Commonwealth Electoral Act [1918]
What does the VCHRR require MPs to do?
When drafting a bill, they must create a statement of compatibility that assessed whether the new bill will align with the 20 human rights outlined in the VCHRR. They also must act in accordance with these 20 human rights.
Explain why someone may have argued against allowing any prisoners to vote.
Prisoners have forfeited their right to vote, it is a deterrence to commit crimes as it loses people the right to vote, maintains civic responsibility, safeguards the integrity of the election system
Describe the development of human rights, provide some examples to support your response.
Human rights have developed and continue to develop over the course of time. For example, prior to the 1815 ruling by the British Parliament, many people of colour were slaves with, in effect, no rights at all. The ruling that abolished slavery gave prior-slaves freedoms they previously didn't have. This process has continued to give women their own bank accounts, queer people the right to marry one another and people with disabilities the right to have children.
Provide one argument for and against banning all prisoners from voting.
(examples)
For - People who commit illegal acts warranting prison time should forfeit their engagement in society's processes, including voting
Against - This ban would be unconstitutional as it limits the right to free political communication (by limiting prisoners ability to speak politically)
Explain how the constitution protects the right to vote.
Not as an express right, but certain sections of the constitution protect ideas and aspects of voting.
ex - sections 7&24 'directly chosen by the people' or section 28/7 dictating how long before governments must re-elect
Explain how both regular courts and the High Court can create common law - make sure to explain the key difference between the two too.
All Courts can interpret the wording and meaning of laws - this is to clarify what the law means.
The High Court still does this interpreting, but focuses on interpreting the constitution not statute laws.
Explain how this case improved the right to vote for first nations people.
First Nations People are, statistically overrepresented in prisons - compared to their regular population percent, they are 10x more prevalent in prison (but serve sentences less than 3 years).
This decision ensured that more first nations people retained their right to vote, even if they were serving short prison sentences - because it upheld the right of prisoners to vote when they are serving shorter sentences.
Outline the process that led to the creation of the implied right to political communication.
Following a ban to political TV ads, news stations took a case to the High Court claiming that this ban was unconstitutional. The justices of the High Court agreed and, though it was not explicitly stated in the constitution, discovered that the constitution's wording and meaning intended for Australian people to have a right to free political communication - which extended to advertising, this then abolished the law banning such ads.