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The right to vote is not enjoyed equally by all

Australians

February 2010

A healthy democracy makes sure that all members of the community have equal access to the political process. Australia is a democratic nation where governments are elected by popular vote. However, even though almost all Australians over 18 years old have the right – and the obligation – to vote, not all Australians enjoy that right as a practical matter.

If you are young, live in a rural or remote area, have a disability, are Indigenous, homeless or a prisoner serving a sentence of more than 3 years, your right to vote in a federal election may be restricted as a legal or practical matter.

1. What does it mean to have the human right to vote?

Political participation is the basis of democracy and a vital part of the enjoyment of all human rights. The right of all people to vote in elections, without any discrimination, is one of the most fundamental of all human rights and civil liberties.

The right to vote, without discrimination, is set out in the International Covenant on Civil and Political Rights (article 25) and the International Covenant on the Elimination of Racial Discrimination (article 5(c)). Both of those human rights treaties bind the Australian government. The right to vote is also set out in the Universal Declaration on Human Rights (article 21).

Human rights law says that, in order to make sure that everyone can practically exercise this right to vote, the Australian government must:

... take effective measures to ensure that all persons entitled to vote are able to exercise that right. Where registration of voters is required, it should be facilitated and obstacles to such registration should not be imposed. If residence requirements apply to registration, they must be reasonable, and should not be imposed in such a way as to exclude the homeless from the right to vote. ... Voter education and registration campaigns are necessary to ensure the effective exercise of article 25 rights by an informed community.^[1]

2. Can certain people be denied the right to vote?

Human rights law says that there can be restrictions on who can vote in an election, as long as those restrictions are based on objective and reasonable criteria.^[2]

For example, it is reasonable to restrict the right to vote to the citizens of a country. It is also reasonable to restrict the right to vote to people who are over 18 years old.

On the other hand it would be unreasonable to restrict the right to vote ‘on the ground of physical disability, literacy standards, educational standards or property requirements'.^[3]

It may also be unreasonable to exclude convicted criminals from the right to vote in certain circumstances. Human rights law suggests that any exclusion of prisoners must be ‘objective’, ‘reasonable’ and ‘proportionate’ to the offence and the sentence.^[4]

3. Who has the right to vote in federal elections under Australian electoral laws?

Every Australian citizen who is aged 18 years or more can vote in a federal election if validly enrolled and not disqualified from voting.

You will be validly enrolled if you are on the electoral roll at your current address (where you have lived for a month or more). You may be removed from the electoral roll if the Australian Electoral Commission becomes aware that your enrolment is at an old address.^[5]

You will be disqualified from voting in an election if:

• you are in prison serving a sentence of three years or more
• you are of unsound mind (incapable of understanding the nature and significance of voting);
• you have been convicted of treason or treachery and have not been pardoned.^[6]

4. Recent changes to the Electoral Laws in Australia

(a) Changes to the enrolment deadlines

The deadlines to enrol to vote and update voting details were changed prior to the November 2007 election.

It used to be the case that voters had a 7 day ‘grace period’ after the official election announcement (when the ‘election writ’ is issued) to make sure that they were validly enrolled.

There were more than 520,000 transactions during the 7 day period before the 2004 election.^[7]

For the 2007 election, under changes to theElectoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006, new voters were required to enrol by 8pm on the same day as the election writ was issued.  A person was only given three working days to update their address.

In February 2010, a bill was presented to Parliament following the report of the Joint Standing Committee on Electoral Matters (JSCEM) entitled Report on the conduct of the 2007 federal election and matters related thereto.  The Bill proposes restoring the close of rolls period to 7 days after a federal election is called.^[8] The Government hopes to pass the bill in time for it to have effect for the 2010 federal election.

(b) An unsuccessful attempt to change prisoner voting rights

There was to be a change to the rights of prisoners to vote, but a 2007 High Court decision invalidated that change.

When it was passed by federal parliament, the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 said that anyone in prison when the election writ is issued would be disqualified from voting.

However, on 30 August 2007, the High Court of Australia said that these provisions violated the Australian Constitution and were therefore invalid.^[9] This means that prisoners serving a sentence which is less than three years can vote in a federal election. Prisoners serving a sentence of three years or more are ineligible to vote in federal elections for the duration of their imprisonment.  For more on this issue see Prisoners' Rights.

(c) Electronic voting

During the 2007 election, electronically assisted voting was trialed to enable electors who are blind or vision impaired to vote independently. Remote electronic voting was also trialed for members of the Australian Defence Force who were posted overseas.^[10]

The JSCEM Report on the 2007 federal election electronic voting trials found that the key benefit of electronic voting was the ability to case a secret and independent vote.  Electronic voting also improved the likelihood of a vote cast by ADF personnel serving overseas being included in the count.  However, the report made the recommendation that electronically assisted voting should be not continued because of the high average cost per vote for electronically assisted voting.  Similarly, the report recommended electronic voting for ADF personnel serving overseas not be continued.^[11]

In March 2010, amendments to the Electoral and Referendum (Close of Rolls and Other Measures) Bill 2010 were tabled in the Senate.  If these changes are passed, they will allow the Electoral Commissioner to determine the method of secret ballot.  For the next election, this will mean that electors who are blind or who have low vision will have the option of attending an AEC divisional office where they can be connected to trained call centre operators to complete the ballot papers.

5. How do the electoral laws impact on the right of people with vision impairment to vote?

The electronic voting trial gave around 300,000 people with vision impairment the opportunity of a secret ballot for the first time.^[12] Before they had the option of electronic voting, people with vision impairment had to ask someone else to fill out their ballot form for them. This meant that people with print disability did not enjoy the right to a secret ballot like everyone else in Australia.

Although the electronic voting trials were not continued, the proposed amendments to the Act are another way in which vision impaired Australians could be fully included in the Australian democratic system.

6. How do the electoral laws impact on the right of young people to vote?

During the 2004 election, 62,583 people joined the electoral roll during the 7 day grace period between when the election was officially called and the electoral roll was closed. This made up about 16% of the total growth of enrolments since the previous election.^[13]

In the 2007 election, new voters had to enrol on or before the day the election writ was issued to be eligible to vote.  The only exception to this was for people who turned 18 after the election writ was issued, but before the election day. These people were given 3 days to enrol.

The JSCEM found that the early closure of the rolls 'serve[d] to disenfranchise electors and ... require[d] unsustainable levels of funding to be expended in order to partly mitigate their effect'.^[14]

7. How do the electoral laws impact on the right of homeless people to vote?

Homeless people face significant difficulties in enrolling to vote, including a difficulty in proving their identity. They are also more likely to experience frequent address changes.

Following the 2007 federal election, the JSCEM recommended that the Electoral Act be amended to incorporate a definition of homelessness to facilitate enrolment of homeless persons and persons living in crisis accommodation and transitional accommodation and to allow more flexible mobile polling.  The Committee also recommended that electoral staff are provided with appropriate training on how to communicate effectively and with sensitivity to the needs of electors with special needs.

These recommendations have not yet been incorporated into the law.  

8. How do the electoral laws impact on the right of prisoners to vote?

People in prison serving a sentence of 3 years or more cannot vote, even if they are on the electoral roll.

On 20 June 2004, there were 9,861 prisoners serving a sentence of 3 years or more.^[15] Thus, approximately 10,000 people were disqualified from voting in the 2007 election.

Some argue that it may be reasonable to punish prisoners who have committed serious crimes by depriving them of the right to vote. However, the Australian Human Rights Commission believes that enfranchisement is a powerful and positive tool to assist with social reintegration and rehabilitation of prisoners.^[16] Giving prisoners the right to vote would be consistent with Australia’s obligation to ensure that:

The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.^[17]

The Australian Human Rights Commission believes that denying prisoners of the right to vote, just because they have been sentenced to imprisonment for 3 or more years does not satisfy the ‘reasonableness’ test at international law. This approach is consistent with judicial decisions in Canada and the United Kingdom.^[18]

9. How do the electoral laws impact on the right of Indigenous Peoples to vote?

According to the JSCEM report, data from the 2007 federal election indicates that people in Indigenous Australia are under-represented in terms of voting participation.^[19] Barriers to electoral participation by Indigenous electors include literacy and numeracy levels, cultural activities, school retention rates, health and social conditions, transience and remoteness. ^[20] The Committee recommended increased funding be given to provide ongoing engagement with Indigenous electors and to enable remote mobile polling at town camps. 

Restrictions on the right of prisoners to vote also exclude a disproportionate number of Indigenous Australians from voting. In 2009, there were 7,386 Indigenous prisoners in Australia, representing 25% of the total prison population.^[21] The disproportionate impact of the prisoner voting restrictions on Indigenous peoples may amount to racial discrimination under international human rights law.

10. How do the electoral laws impact on the right of people with mental illness to vote?

Restrictions on the right of prisoners to vote may also exclude a disproportionate number of Australians with mental illness from voting.

A disproportionate number of people in prison have a mental illness. For example, a 2001 study by the Schizophrenia Fellowship of NSW suggests that 60% of people admitted to prisons have an active mental illness.^[22] The NSW Corrections Health Service also conducted a survey which revealed that 54% of women and 41% of men in prison reported that they had received some form of psychiatric treatment or assessment for an emotional or mental health problem at some point in their lives. Approximately one third of these people had been previously admitted to hospital as a psychiatric inpatient.^[23]

11. How do the electoral laws impact on the right of people with intellectual disability to vote?

Restrictions on the right of prisoners to vote may also exclude a disproportionate number of Australians with intellectual disability from voting.

A disproportionate number of people in prison have an intellectual disability. According to the NSW Law Reform Commission people with intellectual disability are detained at a rate 4 times greater than that of the general population.^[24]

12. Want more information?

For more information about enrolling and voting in the upcoming federal election go to the Australian Electoral Commission’s website at: http://www.aec.gov.au

For a full copy of the Australian Human Rights Commission’s submission regarding the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 see: http://www.humanrights.gov.au/legal/submissions/electoral20060309.html

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^[1] General Comment 25, paragraph 11.
^[2] United Nations Human Rights Committee, General Comment 25,
^[3] General Comment 25, paragraphs 4, 10.
^[4] General Comment 25, paragraph 14.
^[5] http://www.aec.gov.au/About_AEC/Publications/
Fact_Sheets/Close_of_Rolls.htm
^[6] http://www.aec.gov.au/Enrolling_to_vote/Eligibility.htm; http://www.aec.gov.au/Enrolling_to_vote/Special_Category/Prisoners.htm^[7] AEC, submission to the Joint Standing Committee on Electoral Matters (JSCEM) in 2002: (page 3 of the bills digest) AEC, Supplementary Submission, Inquiry into the 2001 federal election, p. 10 http://www.aph.gov.au/house/committee/em/elect01/subs/sub174.pdf

^[8] The Electoral Referendum Amendment (Close of Rolls and Other Measures) Bil 2010.
^[9] Vicki Lee Roach v Electoral Commissioner and Commonwealth of Australia, 30 August 2007, High Court of Australia.
^[10] Media Release, The Hon Gary Nairn MP, 14 August 2006, http://www.smos.gov.au/media/2006/mr_142006.html

^[11] www.aph.gov.au/house/committee/em/elect07/report.htm
^[12] Media Release, Human Rights Commissioner, 23 August 2006, http://www.humanrights.gov.au/about/media/
media_releases/2006/67_06.htm
^[13] JSCEM, The 2004 Federal Election: Report of the Inquiry into the Conduct of the 2004 Federal Election and Matters Related Thereto, para 2.93, http://www.aph.gov.au/house/committee/em/elect04/report/chapter2.pdf
^[14] JSCEM, The 2004 Federal Election: Report of the Inquiry into the Conduct of the 2004 Federal Election and Matters Related Theretopara 3.58
^[15] Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Bill 2005, Jerome Davidson, 8 February 2006, no. 95, 2005–06
^[16] Dhami MK (2005) Prisoner disenfranchisement policy: A threat to democracy? Analyses of Social Issues and Public Policy, 5(1) 235-247.
^[17] Article 10(3), International Covenant on Civil and Political Rights.
^[18] See the Australian Human Rights Commission’s submission at: http://www.humanrights.gov.au/legal/submissions/electoral20060309.html^[19] Note that Indigenous electors are not formally identified on the electoral rolle so participation by Indigenous electors is generally assessed by examining statistics from divisions in which Indigenous people make up a significant share of the population.

^[20] Joint Standing Committee on Electoral Matters, Civi and Electoral Education (2007), Commonwealth of Australia, p88

^[21] Australian Bureau of Statistics, Prisoners in Australia, 2009
^[22] Schizophrenia Fellowship of NSW Inc. (2001) Report on the criminal justice system in Australia.
^[23] Butler T, Milner L. (2003) The 2001 New South Wales Inmate health Survey. Corrections Health Service, Sydney.
^[24] NSW Law Reform Commission (1996). Report 80: People with intellectual disability and the Criminal Justice System. Available at http://www.lawlink.nsw.gov.au/lrc.nsf/pages/R80TOC