Unit 2 - Chapter 7 - A Question Of Rights

Question 1

What is a test case?

Answer 1

A case that establishes new legal rights or principles.

Question 2

What must a person do to take a matter to court?

Answer 2

They must have a standing, this means he or she must be able to show that they were personally affected by the action of another person or group, and suffered as a result.

Question 3

What test case did you decide to study?

Answer 3

Roach V. Electoral Commission.

Question 4

Describe the individuals or group that initiated the case and their role in the case. Provide background information about them.

Answer 4

. Vickie Lee Roach initiated a test case as a result of prisoners’ ability to vote being completely taken away.

. She was a prisoner herself and believed her right to vote should not be taken away.

. Roach had a history of crime and drug abuse, with 125 convictions under her belt between 1976 and 2003 from findings of guilt in 23 different court appearances.

. Whilst serving a 6 year sentence after crashing a car into a man the Howard Government decided to change voting laws.

Question 5

What was the event or right violation that led to legal action being taken?

Answer 5

. In 2006 John Howard and the Coalition launched the Electoral Referendum Amendment (Electoral Integrity and Other Measures) Act.

. One of its changes included removing the right to vote for anyone serving a prison term of any length.

. The original voting privileges allowed for prisoners serving a sentence of 3 years or less to vote.

. Although Vickie Lee Roach wasn’t even applicable to the rules preceding the Amendment in 2006 she believed the total removal of any particular group’s right to vote was wrong.

. She therefore went to the high court to bring attention to the fact that she felt thousands of rights had been breached.

Question 6

Explain the facts and issues that were central to this case.

Answer 6

. When Vickie Lee Roach was sentenced in 2004, at the time disenfranchised people included those:

• incapable of understanding the nature and significance of enrolling and voting,
• those serving a sentence of three or more years for an offence
• and those convicted of treachery or treason.

. However, the provision was amended to get rid of the second point, meaning all prisoners no longer had the right to vote.

. Due to the fact that Roach had a 6 year sentence, she would miss out on the late 2007/early 2008 federal election because she was considered ineligible.

. She decided to challenge the constitutional validity of not only the 2006 amendment but also the previous provision.

Question 7

What are the laws that apply to this case?

Answer 7

. The Electoral Referendum Amendment (Electoral Integrity and Other Measures) Act 2006
. The Electoral Referendum Amendment (Electoral Integrity and Other Measures) Act 1998
. The Commonwealth of Australia Constitution Act

Question 8

Explain: The Electoral Referendum Amendment (Electoral Integrity and Other Measures) Act 2006.

Answer 8

. Under this act a person is considered to be serving a prison sentence if they are in detention on a full-time basis for an offence against the law of the Commonwealth, State or Territory.

. Subsection 93(8AA) states that “a person who is serving a sentence of imprisonment for an offence against the law of the Commonwealth, State or Territory is not entitled to vote at any Senate election or House of Representatives election.”

Question 9

Explain: The Electoral Referendum Amendment (Electoral Integrity and Other Measures) Act 1998.

Answer 9

. Due to the fact that Vickie Lee Roach also believed the laws preceding the 2006 amendment were also breaching the constitution information regarding this legal principle is just as important.

. This 1998 Act actually amended the Referendum (Machinery Provisions) 1984 and the Commonwealth Electoral Act of 1918.

. Furthermore it stated the ever important disenfranchisement of prison voters serving a sentence of 3 or more years.

Question 10

Explain: The Commonwealth of Australia Constitution Act.

Answer 10

. Roach made the High Court consider whether the 2006 and 1998 amendments breached the Constitution (therefore making the changes invalid).
. The specific sections of the constitution presented as being breached were sections 7 and 24.

Question 11

What are rights?

Answer 11

An entitlement or permission, usually of a legal or moral nature.

Question 12

Outline the case and the decision.

Answer 12

. Roach challenged the validity of the amendment by analysing the constitution, more specifically sections 7 and 24.
. The statements under each of these sections (regarding how senators/members) are chosen reveals a big flaw to the 2006 amendment, for neither specify any excluded voters.
. Direct quotes include “The House of Representatives shall be composed of members chosen by the people of the Commonwealth” and “The Senate shall be composed of senators from each state, directly chosen by the people in the state.” No where does it say that prisoners must be excluded. So according to the constitution, everyone legally has a voice and a choice in who they want to run the country, everyone has the right to vote. The High Court agreeing that the Constitution most definitely protected citizens rights to vote, therefore the 2006 amendment was considered to have breach the constitution. As a result the original voting restrictions (which are justified in the Constitution) came back, allowing for more than 8000 prisoners to reclaim their right to vote. Although, not every prisoner (including Vickie) got their right to vote back, Vickie was still happy about the fact that she was still able to make such a huge difference.

Question 13

What were the views FOR rights in this case?

Answer 13

. Many people believe that these rights should be entitled to anyone no matter what age, race, religion or background.
. Believes extra punishment is unnecessary and unjustified.
. Prisoners are still human beings who deserve rights.

Question 14

Extra stuff regarding views in this case.

Answer 14

QUESTION
. The question in this case was “should prisoners be entitled to the same rights?”.

SIMILARITIES
. Both sides believe that this is disenfranchisement acts as further punishment, however one side believes there is nothing wrong

FENCE SITTERS
. Believed that some prisoners should lose their right vote, such as those who have committed murder or rape, whilst others should be able to maintain their rights.

Question 15

What were the views AGAINST rights in this case?

Answer 15

. Others believe that this exclusion of prisoners is ‘objective’, ‘reasonable’ and ‘proportionate’ to the offence and the sentence.
. Believes there is nothing wrong with an extra punishment
. Prisoners are seen merely by their mistakes in determining whether they are entitled to the rights of voting.

Question 16

What was the impact of the decision in this case on the human rights of individuals and on the legal system? In what way did the decision empower those whose rights were redressed by the decision?

Answer 16

. Whilst the decision only impacts voting in federal elections and prisoners serving terms of 3 years or less, it has still shown the value of voting rights and its ability to automatically connect someone to society.
. Our ability to vote is often taken for granted because we have it, but those who have lost their right to vote and see it as our voice.
. Even though the result of the case was to revert back to laws preceding the 2006 Act, a step forward for prisoners rights was still able to take place.
. Prisoners aren’t necessarily considered to deserve human rights because they are often considered monsters.
. Whilst they have undeniably done terrible deeds this made them more human.

Question 17

Has this cased paved the way for other cases to be brought before the courts?

Answer 17

. This cases repercussions haven’t filtered through to state elections as of yet.
. This means, whilst prisoners serving a sentence of 3 years or less can vote in Federal Elections they may not necessarily be able to vote in state elections under the same conditions.
. Many judges argue that a right to vote is also implied to exist in states too, as there should be consistent across all three levels of government.

. However, the laws regarding state voting for prisoners differ according to the state.

• VIC - you may vote if you are serving a sentence of 5 years or less
• WA - you must be serving a sentence of less than 3 years
• NSW - you must be serving a sentence of less than 12 months.

. Therefore, whilst it hasn’t happened yet, a prisoner could fight for extended rights regarding voting just like Vickie Lee Roach.