Analyzing the Majority Decision in Roach v CW Electoral Commission (2007) 233 CLR 162

Option 1 question

Roach v CW Electoral Commission (2007) 233 CLR 162 confirmed the view held by many that there is an implied right to vote in the Constitution (see Joseph and Casten para 13.70 13.75). However, the case primarily concerned who can be excluded from that right.

Gleeson CJ in the majority states at paragraph 7:

Because the franchise is critical to representative government, and lies at the centre of our concept of participation in the life of the community, and of citizenship, disenfranchisement of any group of adult citizens on a basis that does not constitute a substantial reason for exclusion from such participation would not be consistent with choice by the people."

Also in the majority Gummow, Kirby and Crennan JJ state at para 78:

As the Commonwealth submissions respecting the impermissible exclusion of sections of society such as bankrupts and those of indigenous descent demonstrate, there are constitutional restraints necessarily implicit in the otherwise broad legislative mandate conferred by the words "until the Parliament otherwise provides...

Read Roach v CW electoral Commission (2007) 233 CLR 162

On what basis did the majority in Roach decide to disallow an amendment that excluded all prisoners from voting but uphold an amendment that excluded prisoners serving a sentence of three years or greater? Given the majority view that it would be impermissible for the Parliament to exclude sections of society from the franchise on the basis of race what is the significance of the decision's indirect and disproportionate impact on Australia's Indigenous citizens?

General requirements

Please find the essay questions and instructions in the Subject Outline.

Both essay questions require the use of legal research skills to locate and evaluate relevant primary materials (the Constitution, case law, legislation) and secondary materials (scholarly journal articles, books, reports).

Critically assess the strengths and weaknesses of the various claims being made in the literature, and develop a succinct and persuasive argument.

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