2016 Report on enrolment to vote: Process in prisons and locked hospitals
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.
Voting is a basic constitutional right to which all eligible prisoners and patients are entitled. It grants them a voice, enables them to participate in the democratic process, engage positively with the community, and actively contribute to society. It is paramount to uphold the essential right of enrolment and voting for prisoners, and to support them in their compliance with an important civic duty. This can be done through the provision of ‘Enrolment to Vote’ forms to update their addresses and help them successfully enrol. Furthermore, prisoners who have been removed from the electoral roll should be automatically reinstated upon release. The current system fails to take these basic measures to support prisoners in their enrolment, and consequently many people are segregated with their votes and voices unheard. It becomes manifestly evident that the Electoral Commissions have neglected their responsibilities towards these marginalised groups.
Since Justice Action's 2013 report on the same issue, it seems there has been limited progress in the fight for the voting rights of prisoners and patients. The 2013 report can be found here.
Justice Action has also recently released a media piece 'Prisoners denied vote'. The media release can be found here.
Those who have been incarcerated in prison face a unique situation, where their actual residential address (the prison) is not the address from which they can apply for voting registration. Rather, they are registered to vote in the electoral division of their prior residence. The result is that, under the shortfalls of the current system, individuals in prison are unable to receive the relevant correspondence necessary to exercise their vote. This issue has yet to be properly addressed, and runs parallel with those in locked hospitals who can be removed from the roll if deemed incapable of making decisions by a medical professional. Justice Action proposes that the Department of Health notify the Electoral Commission when an eligible person is detained in a locked mental hospital, to automatically update their address to reflect their new place of residence.
Justice Action has worked extensively on the issue of prisoners’ enrolment to vote since 2004. After the Federal Election in 2013, Justice Action released a report highlighting the poor fulfilment of obligations by Electoral Commissions and other authorities, resultantly failing to ensure accuracy in the maintenance of the electoral roll. Since then, many proposals have been put forward to redress the glaring problem of under-enrolment in the incarcerated.
In May 2015, Justice Action commenced a series of enquiries to the various Electoral Commissions of all the States and Territories of Australia and New Zealand. These enquiries focused on the current measures and educational programs in place to aid enrolment of people in prisons and locked hospitals, as well as the processes in place upon their release. The purpose of these enquiries was to identify and convey awareness of weaknesses in existing measures to ensure the enrolment to vote in prisons and hospitals.
Justice Action proposed several initiatives to all of the Australian States and Territories, as well as New Zealand, voicing our concern regarding their inactivity in ensuring prisoners are enrolled to vote. Accordingly, the specific proposals are outlined below:
- Entry enrolment: That the AEC utilise its Memorandum of Understanding (MOU) with Corrective Services to receive the details of a prisoner upon reception to a prison facility to automatically update eligible prisoners, whether on remand or sentenced, with postal voter status. Currently, Corrective Services is obliged to notify the Electoral Commissions of prisoner details for removal from the roll.
- Direct follow up system: That the AEC directly contact eligible prisoners using the internal prison mail service to request an update of details, where applicable, and ensure compliance in enrolment to vote.
- Encouragement to vote: That the AEC work with Corrective Services to commit to the basic provision of voter forms at facilities and direct informational support to ensure eligible prisoners, who are not on the roll, understand their rights and are notified of their potential breach of their obligation to enrol and encouraged to meet their civic duties.
- Post-release mechanisms: That upon release, information received from Corrective Services should be used to provisionally and automatically restore the original address of those exiting the prison system. If not previously disqualified by the length of their sentence, they should be automatically reinstated as a general voter after a period of one month, and be asked if their previous address on the roll still applies.
- Locked Hospital Patients: That the AEC redresses the current absence of a mechanism to provide locked hospital patients with the capacity to update their records within the usual 21 day time-frame by liaising with the Department to Health to establish a streamlined channel of correspondence or Memorandum of Understanding to update their records and reflect the patient’s current address and automatically restore the original address upon release.
Responses to Proposals
Throughout 2016, we have been liaising with State Electoral Commissions in relation to their channels of communication with Correctional Services, and the processes they currently have in place to ensure that basic democratic rights are upheld and those marginalised in society can continue to be represented. State Electoral Commissions have been reluctant to enact changes, with the Victorian Electoral Commission (VEC) even conceding that they have the power to encourage greater participation. The VEC has formally acknowledged, “It can be challenging [for people in prisons and locked hospitals] to update and maintain their enrolment details”. Despite this, they are unwilling to consider changes to procedure and have “no plans to do so”. This response comes despite the 2010 Victorian Electoral Commission report on Prisoners and Voting, which highlighted that obligations to ensure enrolment are not being met in prisons. Though the AEC has shown no interest in providing the necessary assistance to resolve this issue, Justice Action remains committed to ensuring these organisations uphold their responsibilities towards prisoners.
Australian Electoral Commission
The Commission has stated that their ability to routinely gather to conduct enrolment or follow up on released prisoners in accordance to the Electoral and Referendum Amendment (Protecting Elector Participation) Act 2012 (Cth) is dependent on jurisdictional and institutional factors. State/Territory authorities only have the obligation to provide information of prisoners that are commencing or ceasing a sentence of 3 or more years. Consequently, they reiterated that the AEC has limited capacity to identify every inmate and it remains the obligation of all eligible Australians to enrol, to maintain that enrolment, and to vote at Federal Elections. The AEC has confirmed they have access to details regarding remand prisoners that would allow them to create a system enabling prisoners to update their address details and other enrolment information upon arrival and exit of the prison system. Moreover, the Operations Manual of Corrective Services NSW, at 8.12.4, prohibits the provision of ‘How to Vote’ materials, clearly impeding the already limited access to social and political issues for prisoners. This is a highly unreasonable imposition that contravenes a constitutionally protected right.
Prisoners who receive a sentence of 3 or more years are flagged as being ineligible to vote and thus their enrolment on the roll is removed. As per the powers of s103A and 103B of the Act, the Commissioner needs to be satisfied that the change of address is warranted or that the person is eligible to enrol to vote. The AEC emphasise that this also requires reliable data to which they have limited access, due to jurisdictional and institutional factors mentioned above. However, requiring the nomination of an address following release is routine for parolees and could easily be implemented for prisoners released upon completion of their sentence, allowing the AEC to provide notice to re-enrol.
The AEC has accepted our submissions and will consider them for future activity relating to locked hospital patients. They note the question of eligibility of some of these persons may be in play in these circumstances under s93(8) of the Act. Ultimately, the AEC is responsible for maintaining an accurate roll and to do so, requires the development channels of communication to attain reliable data on prisoners, and to action these proposals to meet their obligation as the body responsible for ensuring eligible voters enrol to vote.
Australian Capital Territory
In their response, the ACT Electoral Commission (ACTEC) indicated an inability to directly enrol detainees, but highlighted methods of investigation into levels of enrolment and indicated a willingness to discuss solutions at an inter-departmental level. We are currently following up with ACTEC in regard to both the outcomes of these discussions and the specifics of services offered to hospital patients.
New South Wales
The NSW Electoral Commission (NSWEC) referred us to the Australian Electoral Commission (AEC), where we received a response detailing the processes of becoming a General Postal Voter. Information regarding the ‘Memorandum of Understanding’ was also provided, detailing transfer of prisoner details and voting materials between NSWEC and the Department of Corrective Services. However, they denied Justice Action’s request to clarify the MOU and uphold transparency. Please refer to the AEC paragraph above.
Following our initial inquiries, we were informed that the Department of Correctional Services NT supplies the AEC with information for the “provision of enrolment” on a monthly basis. We have made several attempts to follow up this claim, specifically in regards to what action the AEC takes with this information. However, we have yet to receive a response.
On the issue of locked hospitals, the Northern Territory Electoral Commission (NTEC) could not provide information regarding any policy or arrangements that would ensure communication with the Department of Health to ensure patients are provided with adequate means to fulfil their right and obligation to vote. The NTEC has now referred us to the AEC for answers to our questions. Please refer to the AEC paragraph earlier in the report.
Following our proposals, the Electoral Commission Queensland (ECQ) acknowledged inefficiencies such as the fact that ECQ does not presently receive information regarding the remanded or sentenced status of prisoners. The ECQ stated that the current official stance is to simply excuse eligible prisoners who fail to vote. However, prisoners would have the ‘Failure to Vote’ notice sent to their previous address and not the prison, and are unable to receive or respond to such notices. Lack of communication between Corrective Services and the ECQ continues to create complications and frustrations for prisoners who may wish to vote, and ignores the grave under-enrolment of prisoners.
The ECQ suggested that they believe the current processes, such as encouraging prisoners to contact the AEC and provision of ‘General Postal Voter Application’ forms, were viewed as satisfactory existing responses to the issue of under-enrolment and participation in voting. Regarding the failure to re-enrol, we were informed that the ECQ did not remove prisoners from the roll, which implied there was no need for re-enrolment or further action.
The reality of low voting participation and enrolment in the prison population clearly establishes the inadequacy of current enrolment mechanisms. We are seeking further response from the ECQ regarding our proposals including the introduction of vital mechanisms and follow-up upon release.
The ECQ does not have the legislative power to require locked hospitals to provide a regular list of new admissions. They have contacted Queensland Health with the request but expect it will be rejected on the basis of privacy laws.
The ECQ have proposed the attainment of a list of all locked hospitals so as to provide them with enrolment forms to give to patients upon admission so patients can update their address. The provision of ‘Objection to Enrolment’ forms for doctors to fill out for patients where appropriate was also suggested. Without actioning these plans and proposals, the inefficiencies in current process will only continue to perpetuate and emphasise the limited responsibility of the ECQ.
The Electoral Commission South Australia (ECSA) also referred us to the AEC, passing on all responsibility for changes to enrolment and voting processes. There were also implications that the ECSA viewed imprisonment as a “valid and sufficient” reason for failing to vote under s 85 of the Electoral Act 1985 (SA). By excusing non-enrolment, the Commission ignores the mandatory nature of voting, and condones the continued exclusion of a highly vulnerable group. We have brought these proposals to the AEC, emphasising their obligations to maintain an accurate roll and ensure all those capable fulfil their civic responsibilities.
In our communications with the Tasmanian state office of the AEC, they submitted that responsibility was on the AEC to grant prisoners automatic postal voter status upon reception into prison. According to the AEC, the legal requirement of a signature on postal voter forms prevents this, and that current practice relies on an agreement between the AEC and the Tasmanian Justice Department. This agreement provides the AEC with information regarding prisoners’ details, and provides the Justice Department with “voting materials”. The AEC claims it undertakes regular follow-up activities to ensure eligible Australians who are not on the electoral role successfully enrol, however the details of this procedure have not been provided and hence simply remains a claim.
The AEC has stated that automatically providing postal voter status to prisoners is not possible under the Electoral Act 1918 (Cth), but prisoners can enrol using the enrolment form tailored for incarcerated persons. They are to indicate at Part 7 of that form if they, as eligible voters, wish to be registered as a General Postal Voter for Federal and Tasmanian state and local government elections.
With both the Tasmanian Justice Department and the AEC effectively disowning responsibility for the enrolment of prisoners, the current system merely accepts the present state of under-enrolment and exclusion.
Victorian Electoral Commission (VEC) continues to evade its obligation of maintaining an accurate roll by placing the onus on prisoners to update their details upon reception into prison despite this initial integration period being a profoundly difficult time for prisoners in which voting is a less prominent weight. In their response, the VEC admitted that they had the power to enrol prisoners to vote, but stated that they would not pursue any proposals due to prisoners having the responsibility to maintain the information themselves. The VEC’s expression of confidence that they are currently meeting their legal obligations comes despite the recent report Prisoners and Voting, which identifies major failures with current processes, particularly in the number of eligible prisoners who do not enrol to vote.
In the VEC’s response to Justice Action’s emails regarding enrolment for patients in locked hospitals, they stated that it is the responsibility of individuals in locked mental health care facilities to update and maintain their enrolment details but the VEC will not prosecute those patients who are unable to do so. The VEC has stated that they are not going to, and do not have the intention to, make a request to the Department of Health and Human Services for information to support enrolment programs.
The Western Australian Electoral Commission (WAEC) has explained that there is currently no mechanism to update enrolment records based on information by other government agencies, and that this was the duty of the elector. We have been informed that communication with the Department of Corrections is underway concerning voting within locked hospitals. We are following up with the Commission regarding the outcomes of these meetings and what, if any, services are currently provided to locked hospital patients. However, if any efforts have been made to ensure the provision of the necessary documents, they have not been made clear.
The NZ Electoral Commission (NZEC) response highlighted the current provision of “re-integration packs” for prisoners upon release, the obligations of the Department of Corrections to ensure remanded prisoners are enrolled and can vote (F.03 Prison Operations Manual), as well as the provision of voting teams to locked hospitals prior to elections to provide “voting services”. Their response included only limited information about the role of the Commission in ongoing challenges to the current exclusionary laws (Electoral (Disqualification of Sentenced Prisoners) Amendment Act (2010)).
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 , 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.
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.
More information on the right to vote
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.