Criminal Priors & the Right to Be Elected

[1971] VR 33.

See Roach v Electoral Commissioner (2007) 239 ALR 1–17 ( Gummow Kirby Crennan JJ ).

A term which is probably synonymous with the British Commonwealth: see Taylor Greg , The Constitution of Victoria (2006) 232 fn 159.

Constitution Act 1975 (Vic) s 61A.

Constitution Act 1975 (Vic) s 61A(1)(c).

See also Taylor , above n 3, 233–4.

Ibid 233.

Constitution Act 1975 (Vic) ss 18(2)(d) [re s 44(3)], 18(2)(e) [re s 48(2)], 18(2)(f) [re s 61A], s 18(1A) [re defining a ‘special majority’ as a 3/5ths majority of both Houses].

At the time of writing Victoria has released a consultation paper inviting comment on a draft model Spent Convictions Bill: Department of Justice, Victoria, Draft Model Spent Convictions Bill — Consultation Paper (November 2008) <http://www.justice.vic.gov.au/wps/wcm/connect/DOJ+Internet/Home/About+Us/Media+Room/News+Archive/JUSTICE+-+Public+Discussion+on+Spent+Convictions+(NEWS)> at 13 February 2009.

The High Court has rejected a necessary connexion between the seriousness of an offence, and whether it is triable summarily, or on indictment in interpreting s 80 of the Australian Constitution: see, eg, Cheng v The Queen (2000) 203 CLR 248, 295 ( McHugh J ).

Treason, sedition and sabotage are offences under Commonwealth law. While the Commonwealth has spent conviction legislation which could technically apply to these offences, we believe it is highly unlikely that such an offence would be punished by 30 months imprisonment or less so as to attract the operation of the Commonwealth's spent conviction legislation: see Crimes Act 1914 (Cth) s 85ZM(2), 85ZV.

Electoral Act 1985 (SA) s 133.

Electoral Act 2004 (Tas) s 239(1)(a).

Constitution Act 1934 (Tas) s 14(1) when read in conjunction with the Electoral Act 2004 (Tas) s 31(2).

Twomey Anne , The Constitution of New South Wales (2004) 427.

Parliamentary Electorates and Elections Act 1912 (NSW) ss 21(b), 79 and 81B.

New South Wales' spent conviction legislation does not extend to sexual offences: see Criminal Records Act 1991 (NSW) s 7(1)(b). However, it should be noted that there are discrepancies between the definitions of ‘sexual offences’ and ‘child sexual offence’ in each Act: Criminal Records Act 1991 (NSW) s 7(4), cf Parliamentary Electorates and Elections Act 1912 (NSW) s 81K(1).

Northern Territory (Self Government) Act 1978 (Cth) s 21(1)(c).

See Electoral Act (NT) ss 21(1)(a), 36(1)(b) and Northern Territory (Self Government) Act 1978 (Cth) s 14.

Commonwealth Electoral Act 1918 (Cth) s 93(8)(c). Re the Commonwealth offences of treason and treachery, see above n11.

Electoral Act 1992 (ACT) s 104(4), (5).

Twomey , above n 15, 397.

Office of the High Commissioner for Human Rights, General Comment No 25: The Right to Participate in Public Affairs, Voting Rights and the Right of Equal Access to Public Service (Art 25), CCPR/C/21/Rev.1/Add.7 (1996) [4].

Ibid [14].

Silva v Uruguay (1981) CCPR/C/12/D/34/1978 [9].

(2007) 239 ALR 1.

Roach v Electoral Commissioner (2007) 239 ALR 1 ( Gleeson CJ Gummow Kirby Crennan JJ Hayne Heydon JJ dissenting).

Ibid 11 [24] ( Gleeson CJ ).

Ibid 11 [23] ( Gleeson CJ ).

Ibid 25 [85] ( Gummow Kirby Crennan JJ ).

Ibid 6–7 [15] ( Gleeson CJ ) (emphasis added).

Ibid 25 [85] ( Gummow Kirby Crennan JJ ).

For a brief reference to this point, see ibid 6 [10] ( Gleeson CJ ).

Tribe LH , American Constitutional Law (2nd ed, 1988) 1084 as extracted in Roach v Electoral Commissioner (2007) 239 ALR 1, 7 [14] ( Gleeson CJ ).

The Victorian Charter contains a provision in similar terms to the International Covenant on Civil and Political Rights, Art 25(b): See Charter of Human Rights and Responsibilities Act 2006 (Vic) s 18(2)(a).

See Consultation Committee for a Proposed WA Human Rights Act— Final Report, November 2007 (aka ‘the Chaney Report’) <http://www.justice.wa.gov.au> at 12 November 2008.