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This article was published on NewMatilda.com by Patrick Wright.

Prisoners Voted In the Dark

Inmates in NSW were denied information about party policies and the state's voting system in the lead up to last weekend's election, writes Patrick Wright

Prisoners’ right advocates have slammed two NSW government departments for policies that show "contempt" for prisoners. The departments of Justice Health and Corrective Services both refused to hand out voting information or party policy brochures to prisoners or patients before last weekend’s election because they wanted to remain apolitical.

As a result, New Matilda understands prisoners eligible to vote were not given any information at all about any of the parties’ policies, or about the NSW optional preferential voting system. 

"It’s an act of contempt for the citizens who are held in these hospitals and prisons," said Brett Collins, co-ordinator of Justice Action, an independent and non-government prisoner advocacy group. "Prisoners see the one right that they thought they had and … they see it being trampled over and not being defended." In New South Wales, prisoners serving a sentence of 12 months or less are still able to vote.

Constitutional lawyers have also expressed dismay. "It’s arguable as a matter of law that prisoners and others in detention who can vote have a right to access information about the election and the policies of parties," George Williams, foundation director of the Gilbert + Tobin Centre of Public Law, told New Matilda.

 "When you talk about democratic rights, we understand those as something that everyone’s entitled to. It’s a right of citizenship. And it’s something that even a prisoner should be able to exercise.

"

To inform prisoners and detainees about party policies, Justice Action created the four-page newsletter JUST US in advance of the NSW election. It included reports on computers in prison, results from a forum held by the Community Justice Coalition, and other voting-related material.

 They planned to distribute the newsletter to NSW prisoners and patients at the Forensic Hospital near Long Bay correctional facility, but were denied access on 17 March by both Justice Health and Corrective Services.

The newsletter was sent on 10 March to both the commissioner of Corrective Services, Ron Woodham, and Justice Health chief executive Julie Babineau. Neither departments agreed to distribute it.

 Spokesperson for Corrective Services, Bec Sallit, said in an email that the department already had "adequate sources of information about the election to distribute to offenders" and that Corrective Services "ensures that each offender has the information on political parties campaigning for the up-coming election and the processes involved to vote."

But another spokesperson for Corrective Services told New Matilda this last statement was "incorrect", and that Sallit "was misinformed". "Our policy is that we deal directly with the electoral commission to ensure inmates can fulfil their right to vote. Corrective Services NSW does not distribute political material or promote any political view to inmates [as] … it is our role to remain independent," said the spokesperson, who asked not to be named.

Justice Health chief executive Julie Babineau told Brett Collins in an email that the JUST US newsletter was "not suitable for distribution within the Forensic Hospital" because the "document contains language and content that is political in nature and as such would not be deemed suitable for distribution within any NSW health facilities."

 (The newsletter can be viewed here)

"Any distribution of such material by Justice Health could be viewed as being endorsed by Justice Health," she stated.

Babineau added that "patients in the Forensic Hospital have access to television and print media comparable to access available to people in the community." New Matilda understands that Corrective Services also permits prisoners and detainees to purchase newspapers with their own money.

 Justice Health did not return NM’s phone calls or emails.

Prisoners’ rights advocate and lawyer, Kat Armstrong, said she’d spoken with women from Emu Plains Correctional Centre, Dillwynia Correctional Centre and Parramatta Transitional Centre who told her no material was provided about the state election.

According to Armstrong, one woman at the Emu Plains Centre was told by prison officials that she would need to complete a postal vote for the election.

"[But] she was just fobbed from one person to another and wasn’t given any forms, so she didn’t end up voting," said Armstrong.

"She was extremely frustrated, extremely indignant, at the fact she couldn’t do it."

While the refusal to hand out political information may be Justice Health and Corrective Services policy, according to legal experts, it isn’t in line with implied constitutional freedoms in this country. Executive director of the Human Rights Law Centre, Philip Lynch, says refusing "the distribution of electoral material may interfere with the right to vote, which includes the right to cast an informed vote" and also breach the implied freedom of political communication. 

"That freedom has been implied in the constitution as being central to, or essential to, representative democracy," Lynch explains.

And Lynch has form in this area.

 He was solicitor for Vicky Roach, an Aboriginal prisoner who in 2007 successfully challenged the constitutionality of a Howard government law to ban all prisoners from voting at elections. He flat out rejects suggestions by either department that distributing the JUST US newsletter would amount to an endorsement of its content. "[They’re] in no different a position here than Australia Post," he told New Matilda. "Australia Post by delivering political materials to our letter boxes isn’t being partisan or is not politicised, it’s fulfilling its core role of distribution of information."

"Prisoners shouldn’t be subject to any deprivation of liberty or freedom other than the deprivation of liberty itself. And that means they shouldn’t be deprived of the right to vote, and should have the same capacity as any person not imprisoned to material and information which enables them to make an informed choice."

But others see the problem both Justice Health and Corrective Services face.

 "If you’re given stuff by some people and not by other people. Then you’re [potentially] seen to be biased in some way. I’d imagine they’d be in some trouble if that happened," said associate professor Anne Twomey, a constitutional expert from the University of Sydney.

According to Twomey, it "may not necessarily be a case of everybody having a right to stick their brochures" in the prisons. But she said she understood the troubles people face receiving information in prison.

 "If all prisoners were denied all information so that they didn’t know what policies existed or what candidates are running then you’d have a strong argument [for unconstitutionality]," she said.

The right to vote and the freedom of political communication were found by the High Court from within the text of the Australian Constitution. And because the NSW Constitution doesn’t have the same text as the federal one, there’s no guarantee that either apply at the state level.

 The debate though may soon be settled. Justice Action will take the matter to court with Legal Aid. David Bennett AC QC, former Commonwealth Solicitor General and legal advisor to the Howard government, will also be advising.

 

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