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Human Rights

Human Rights

2019 Enrolment to Vote Report

ENROLMENT TO VOTE FOR PEOPLE IN CUSTODY

2019 REPORT

Throughout the first two months of 2019, Justice Action has been ensuring that authorities are providing prisoners and mental health patients with the opportunity to enrol and vote in the upcoming election. This includes the Australian Electoral Commission, state mental health authorities and corrective service authorities. The following report outlines this work as at 1/3/2019.

1. AUSTRALIAN ELECTORAL COMMISSION

Justice Action first approached the Australian Electoral Commission in early 2019, after which they were approached 3 additional times. Contact was made with Tom Rogers, the Electoral Commissioner, yet they still have not explained their approach.

2. PRISON AUTHORITIES

All commissioners in the states and territories have acknowledged their responsibility to ensure prisoners in their jurisdiction will be given posters informing them of how to enrol to vote. Examples of this can be found in the responses from Victoria and NSW.

In January 2019, the Deputy Commissioner of Operations from Corrections Victoria replied that:

  • “Corrections Victoria has been working closely over the past two years with the Victorian Electoral Commission on increasing the uptake of prisoners who are eligible to vote. This has included in-person voting opportunities at several of our prisons in the recent Victorian State election, as well as increased information being provided at prisoners where only postal voting was offered.”
  • “Prior to this, the Victorian Electoral Commission funded focus groups with prisoners at several of our prisoners in an effort to understand why prisoners more often than not choose not to vote when they are eligible. I am yet to receive such statistics on the number of prisoners who choose to vote in last years’ state election, however I suspect the proportion will be higher than it has been in previous elections. We have also worked closely in the past with the Australian Electoral Commission in several ways”
  • “Corrections Victoria will continue these efforts and communication with prisoners in the lead up to and during this year’s federal election”

Similarly, the Acting Commissioner of Corrective Services NSW replied:

  • “Corrective Services NSW has arrangements in place to distribute electoral information, signage, envelopes and voting forms provided by the Australian Electoral Commission. CSNSW has informed inmates about postal voting arrangements in the past and will continue to do so for the forthcoming elections.  The AEC has advised it will be providing enrolment information, signage and associated material for inmates in February 2019. CSNSW will distribute that information and support inmates to enrol and vote by post.”

3. MENTAL HEALTH AUTHORITIES

This process has been more difficult with mental health authorities, where the civil rights of prisoners are less recognised. In fact, one state Commissioner asked JA if psychiatric patients retain the right to vote. He didn’t know! Multiple emails and phone calls regarding the insufficient supply of information to patients regarding their right to vote were sent to the relevant mental health authorities in all states and territories, which received a mixed set of responses.

Australian Capital Territory

  • The ACT Local Hospital Network Directorate was emailed but they have yet to reply or acknowledge the email. Nevertheless, we will be following up on these emails with logged phone calls.

New South Wales

  • In NSW, 17 South Eastern Districts have all answered with varying responses. One such response comes from the South Eastern Sydney Local Health District, which stated:

“Coordination with the Australian Electoral Commission for the three SESLHD Mental Health Inpatient Units located on the Prince of Wales Hospital, St George Hospital and the Sutherland Hospital Campuses is undertaken by the management of facilities in which the Services are located. All Mental Health inpatients will have access to postal voting – voter education materials, and will be assisted with the postal voting process by Volunteers and Peer Workers”

Northern Territory

  • In the Northern Territory, 3 primary health networks were contacted, where one responded: “Inpatients who are eligible to vote around the time of an election are encouraged to do so when the Australian Electoral Commission conducts mobile voting at the hospital prior to and on election day.”

Queensland

  • In Queensland, of 16 local health districts that have been contacted, only 3 have acknowledged the email but no responses have been received. However, follow-up emails have been sent with phone calls to follow.

Tasmania

  • In Tasmania, the 2 authorities have acknowledged the email but gave no indication regarding when they would answer it. As a result, follow-up emails and phone calls have been sent.

South Australia

  • In South Australia, none of the 7 health networks contacted have replied or acknowledged the email that was sent. As such, these emails will be followed up together with phone calls.

Victoria

  • In Victoria, 15 health networks have responded, providing a varying degree of responses by giving indications such as:

Our mental health patients are provided with VEC face-to-face voting facility opportunities, along with posters and information regarding the election process inclusive of postal votes.  The process is coordinated by our Corporate and Community Relations team and is managed very well preceding every election.” Given by Peninsula Health.

  • Monash Health on the other hand, detailed their process of providing information for mental health patients, including providing for CALD background patients, such as non-English resources and have support workers to discuss and assist patients with enrolment forms. These resources are made available to patients with communal iPads, or their own devices, and forms from the post office. They then contact relevant electoral offices to arrange staff and polling booths in the ward on Election Day.

Western Australia

  • In WA, of the 12 mental heath districts, 3 have given patchy responses whereas the others have yet to reply, meaning that we will follow up on the emails, together with phone calls.

Prisoners' Right to Vote

The Right to Vote for Prisoners

Voting is a fundamental human right upheld in Australia through legislated compulsory enrolment since 1924. This process of compulsory enrolment demonstrates our nation’s hard fought dedication to achieving a democratic process that accurately reflects public opinion and values. In failing to ensure prisoners are enrolled in the voting system, Electoral Commissions across Australia and New Zealand are significantly obstructing an important democratic process and ignoring their institutional responsibilities. People currently detained in prisons and hospitals are significantly under-represented, disenfranchised, and disproportionately affected by government policy, both while in prison and in hospitals, and following their release. As stated by the General Manager of Silverwater Correctional Centre, Australia’s largest prison, only two people voted in the 2013 Federal Election.

The existing Federal law in Australia allows prisoners on remand or incarcerated for less than three years to vote in Federal elections. In Roach v Electoral Commissioner, the High Court found that the 2006 amendment of the Commonwealth Electoral Act 1919 (Cth), which disqualified prisoners from voting in Federal elections, directly infringed the right to vote under the Australian Constitution. Consequently, the amendment was deemed contradictory to section 7 and section 25 of the Constitution, and the continued application of the previous statute was upheld. These fundamental principles must be upheld by ensuring that those in prisons and locked hospitals are able to exercise their democratic right to vote. 

In New Zealand, the expression of the right to vote as a prisoner is still being reformed. The High Court decision in Taylor v Attorney-General [2015], held that the Electoral (Disqualification of Sentenced Prisoners) Amendment Act (2010), which removed the right of prisoners to vote, was inconsistent with section 12 of the New Zealand Bill of Rights, and a parliamentary committee was established to review current laws. In his judgment, Heath J ruled that the law was "inconsistent with the most fundamental aspect of democracy: the right of all citizens to elect those who govern them."

In the current state, conditions in prisons and mental hospitals are not conducive to ensuring prisoners are enrolled to vote if eligible. Those in prison have limited interaction with the wider community, and it is the responsibility of electoral bodies to support them in their performance of civic duties. Currently, the majority of prisoners are not provided with forms to update their enrolment or the necessary information to be considered an educated voter in an election. This further widens the disconnection of prisoners from society, and may affect their desire to vote. 

In 2010, a report by the Victorian Electoral Commission titled Prisoners and Voting outlined the limited participation record of prisoners who vote. Only 26% of prisoners serving a sentence of 3 years or less were enrolled to vote, despite being eligible and legally obliged to do so. A significant barrier to enrolment was the lack of support afforded by Corrective Services and Electoral authorities to generate an active interest in prisoners, who generally believed that no personal benefits were conferred by voting. This attitude shifted significantly when the prisoners were encouraged to believe that their vote was equally as valuable as any citizen’s in contributing to government policy. 

Citizen Participation

Enrolment to vote is critical to rebuilding the relationship between those in prisons and hospitals, and the broader community. One of Justice Action’s primary goals is to alleviate the limited participation currently in occurrence by educating prisoners about their civil rights and responsibilities. Active citizenship in the prison population can have rehabilitative and normalising effects, and this is also encouraged through compliance with voting responsibilities. In order for prisoners to be supported in their enrolment they require the necessary information, including forms pertaining to their enrolment and voting responsibilities. At present, these fundamental requirements are not being met.

Conclusion

Voting is the bedrock of democracy and grants citizens an active voice to shape the society which most of them will return to. Disenfranchising prisoners and patients ostracises them further from the community, and this disenfranchisement continues to contribute to the feelings of alienation and inadequacy that serve to separate ex-prisoners from the rest of the community even after their release. 

Justice Action is heavily committed to ensuring prisoners and patients in locked hospitals are given the necessary support to exercise their civic duties as a way to normalise their lives as part of their rehabilitation. Ultimately, we believe that the responsibility lies with the Electoral Commissions of each jurisdiction to support and uphold the voting process by ensuring that eligible prisoners satisfy the procedural requirements for enrolment and voting. It is evident that profound lows in prisoner participation in enrolment and voting processes are the result of derogations from the responsibilities of those electoral bodies. In 2016, Justice Action aims to ensure that prisoners are provided with ‘Enrolment to Vote’ forms in order to update their addresses and successfully enrol for elections. Further, we strive to ensure that prisoners who have served their sentence are automatically reinstated to vote upon release. These are the first among many steps towards creating an inclusive and just democratic society.

 

More information on the right to vote

How I won back our voting rights by Vickie Roach p.2
Mental health patients right to vote p.3


The history of the Prisoners Vote p.4


Dawn of the civil dead p.1


Prisoner right to vote - early report/international links

 

Prisoners denied vote

Media release: Wednesday May 25, 2016

"Most people in prisons and locked hospitals across Australia are eligible to vote but won’t be participating in the 2016 Federal Election. Last week in several NSW jails not one person surveyed had been given information about enrolment” said Justice Action Coordinator Brett Collins.

"Their right to vote was attacked and successfully defended in 1997 and 2006, as well as in NZ in 2015. This failure to properly enrol people in prisons and locked hospitals has had the same result for 44,000 people, 78% of whom are likely to be eligible. The General Manager of Australia’s largest prison said that only two people had voted in 2013. Yet enrolment and voting are compulsory. These laws empower powerless people so the authorities ignore them. If other laws were enforced so poorly we would have empty prisons. ” said Mr Collins.

"Since 2004 we have pursued Electoral Commissions in all states and territories, federally and in NZ to ensure that the political status of these otherwise excluded people is respected. The Electoral Commissions have the obligation and powers to maintain the roll, but focus only on removing prisoners and don’t use the same information sources to enrol them. WA and Qsld were open to change, Victoria acknowledged the problem in a 2010 report, and others agreed that locked mental hospitals needed attention. But nothing has happened. Some tried to shift responsibility, misled in explanations, and refused access to MOU’s. Latest full report is here” said Mr Collins.

“All political parties have contributed statements to the newspaper JUST US specifically for those people detained in prisons and hospitals, distributed nationally as a constitutional right to information. The special edition will be launched on June 10th in Trades Hall, Sydney.

2013 Enrolment to Vote Report

Justice Action was recently engaged in a series of nation-wide enquiries with all of the States and Territories of Australia, to ascertain what efforts and structures had been made to guarantee that all eligible prisoners, forensic patients and involuntary patients had been enrolled to vote in the upcoming Federal Election on the 7th September, 2013. The deadline for enrolment was 8pm (EST) on Monday 12th August. The results collected were troubling to say the very least. Voting is a fundamental civil right for any citizen in a democracy like Australia. The research carried out by JA revealed a fundamental lack of consistency and adequate consideration being put into the preparations for ensuring that all these Australians have their fair opportunity to participate on Election Day.

Read more

2016 Enrolment To Vote Report

2016 Report on enrolment to vote: Process in prisons and locked hospitals

Imageforenrolmenttovote

Executive Summary

Justice Action (JA) has developed a set of proposals to improve current processes to ensure that those marginalised in prisons and locked hospitals are enrolled to vote. Ensuring the fulfilment of these enrolment obligations has been a focus of Justice Action since 2004. Of the 44,000 people currently in prison or locked hospitals, approximately 78% are presumed to be eligible to vote. This is a considerable proportion of the population whose civil and political rights are being breached by the responsible authorities obliged to carry out these democratic rights and obligations. The drastic shortcomings and limited respect of the electoral authorities in regards to prisoner enrolment have been revealed in our enquiries and negotiations with all Electoral Commissions in Australia and New Zealand, who have made limited attempts to consider and adopt practical solutions to the current situation.

Read more

Enrolment To Vote

 


Report: Enrolment to Vote
in Prisons and Hospitals 2016

Executive Summary
Justice Action has undertaken a series of enquiries into the processes currently in place to ensure all people in prisons and forensic hospitals are enrolled to vote. From these enquiries, it has been established that Electoral Commissions across all the Australian states and territories, as well as the New Zealand jurisdiction, have made no effective attempts to meet their obligations and enrol eligible persons.

Read more

High Court Upholds Consorting Laws - Tajjour v New South Wales

The High Court recently held that the consorting provisions in sections 93X and 93Y of the Crimes Act 1900 (NSW) were constitutionally valid. This case note analyses the Court's decision.

Building on our submission to the Ombudsman, it argues that the decision of the Court is apt to creat confusion surrounding the offence, and fails to recognise the inappropriateness of consorting as a means of combatting organised crime. It contends that the continued reluctance of the High Court to recognise a free-standing freedom of association is particularly problematic. It also analyses the response to the Attorney-General to the decision, which countenances the use of consorting as a police power.

Click here to read the pdf

Read more

Minorities and Consorting Laws

Justice Action recognises that consorting laws represent a current issue that needs to be highlighted. Recently, the Justice Action team compiled a consorting paper to provide information to the NSW Ombudsman about the impact of the consorting provisions on prisoners, ex-prisoners and the services providing these programs. A case note analysing the High Court's decision can be found here.

Read more

Freedom of Expression

"Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice."
- International Covenant on Civil and Political Rights (ICCPR) - Schedule 2, Human Rights and Equal Opportunity Commission Act 1986

Freedom of expression underpins the very freedom to think.  Despite this fact, Australians currently do not have an explicit constitutional right to freedom of expression like most of their counterparts in the Westernised world.   Australian courts have suggested that freedom of expression is to be found implicitly in world treaties and the Constitution itself.  In Lange v. Australian Broadcasting Corporation (1997) 145 ALR 96, it was suggested that the constitutional implication of freedom of political communication acts as a brake on governmental efforts to limit what may be expressed on political matters.  It does not explicitly establish a personal right to freedom of speech.  The Court also re-affirmed that the implied freedom is not absolute.

For more of a discussion on this topic, please refer to: http://libertus.net/censor/fspeechlaw.html#implied

To see the complete decision of the Lange case, visit: http://www.austlii.edu.au/au/cases/cth/HCA/1997/25.txt

 

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