Over the years since federation, the High Court has been called on to interpret many sections of the Constitution and to determine how they apply in practical situations. There have been a number of cases where the Court has had to determine whether or not the founding fathers might have intended that particular rights be protected, while not expressly including them in the wording of the Constitution. 1

 Widely/Broadly interpretation The High Court on occasions attempts to read between the lines in order to ascertain the intent of a particular passage of the constitution. The court has examined records regarding deliberations of constitution conventions (meetings to create the constitution) in a hope to uncover conversations/intent.  Narrow interpretation Taken a more literal approach regarding interpretation of the actual words written The court has made no attempt in this circumstance to look deeper into the intentions of the founding fathers. 2

 An implied right is a right that is not specifically stated in the Constitution (like the 5 express rights are)  The Constitution has to be read between the lines to interpret what the Founding Fathers meant when they wrote the Constitution  At times they have had to interpret broadly /widely and other times narrowly  There is only ONE implied right that the majority of the High Court has accepted as an implied right 3

 The High Court has established the Implied right of: Freedom of political communication  To date the High Court has only firmly established one implied right.  The High Court has considered the issue of an implied right to vote, but has stopped short of a definitive ruling on this matter 4

 According to the High Court if we have the structural right to vote for members of parliament, there is an implied right that Australians are entitled to the freedom to speak about political matters 5

 The right to be governed by a parliament that is both representative and responsible to the voters is recognised as one of the structural rights of Australian citizens. While this implies that there must be some right to vote by at least some of the citizens of the Commonwealth, it does not guarantee any clear rights to all citizens 6

 The constitution does not guarantee a right to vote, but rather provides that the Senate and the House of Representatives will be directly chosen by the people (sections 7 and 24). At the time of federation, ‘the people’ did not include women, Aborigines or men under 21. Exactly who can vote is determined by Commonwealth legislation, not the Constitution (for example, whether prisoners can vote and the age at which people can vote). Nevertheless, by providing that the two houses must be directly ‘chosen by the people’ the Constitution does imply that a substantial proportion of the population must be able to participate in the electoral process, or the houses could not be described as being chosen by the people. 7

 This case questioned the validity of the Commonwealth to restrict prisoners from voting at elections.  This case was significant because it considered the right to vote 8 Roach has completed a master's degree in professional writing and is studying for a PhD in creative writing

 Vickie Lee Roach is an Aboriginal woman  Removed from her mother at 2  One of the Stolen Generation  Rebelled against her foster family  Had a heroin habit by 14  Consequently became a teenage prostitute  guilty verdicts 9

 2007 she was serving 6 years for recklessly causing serious injury in a car crash after robbing a milk bar, and other offences  She mounted a High Court challenge against some amendments to the Electoral Act (2006) which banned all prisoners from voting at Commonwealth, state or territory elections at the time of their imprisonment 10

 Majority 4-2 High Court decision found that the 2006 amendments to ban all prisoners voting rights was unconstitutional.  It was inconsistent with the principle of representative government which structurally protects rights  It recognised that the right to vote can be restricted to ensure representative government. (Unsound mind, treason, serving sentence of more than 3 years)  The High Court found that only those who committed ‘serious criminal conduct’ should not be entitled to vote  Thus the 2006 amendment was invalid but the right to vote can be removed for serious offenders only. Vickie Roach did not convince the court that all prisoners should have this entitlement 11

 The right to vote is protected by the structure of representative government  It is limited to those serving less than 3 years prison term  The High Court did not go as far as declaring the right to vote as an implied right  It believed the Parliament does have the power to disqualify some people from voting in the interest of the wider community  Vickie Roach won this right for prisoners but did not get to vote, she was serving a 6 year sentence 12

 Answer Q 7 – Roach Case (P.104) – Discuss Answers  Questions 1 – 6 Page 104  Extend and Apply your knowledge P.105 & 106 – Answer Questions 1 & 2 13