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.
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
ENROLMENT TO VOTE FOR PEOPLE IN CUSTODY
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 of the 25th March 2019.
1. AUSTRALIAN ELECTORAL COMMISSION
18th March 2019 – Jeff Pope, the Deputy Electoral Commissioner of the AEC, responded to our queries by providing the following statement:
- “Prisoners who have internet access can access the AEC’s Online Enrolment System to easily enrol or update their enrolment details online… There are also forms and directions on how to enrol readily available on the AEC website.”
We responded on the same day with the following statements:
- We noted that prisoners do not have access to the internet and will not be able to enrol or update their enrolment details through online means.
- We noted that the AEC did not respond to the issue of mental health patients in locked hospitals and asked if any arrangements have been made for them.
21st March 2019 – Robyn Legg, the Assistant Commissioner of the AEC, responded to our previous email on behalf of Jeff Pope:
- “While the AEC has enrolment and voting information available on the AEC website, we do appreciate that this is not an option for everyone. The AEC information fact sheets and paper enrolment application forms are also distributed by our Divisional offices to prisoner facilities who will then make them available for the prisoner population.”
- “[In relation to mental health patients in locked hospitals], we use a network of advocacy groups and providers to get information out… Mobile polling occurs in a number of health facilities during the election.”
2. PRISON AUTHORITIES
Most 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. Here are their responses.
Australian Capital Territory
Statement from Jon Peach, the Executive Director of the Australian Capital Territory Corrective Services (ACTCS), on the 13th February 2019:
- “ACTCS is committed to providing detainees with the opportunity and facilities to vote, if they are eligible and enrolled. I can ensure that ACTCS make ever effort to promote enrolment to vote and to provide the appropriate enrolment documentation to detainees.”
New South Wales
Statement from Rosemary Caruana, the Acting Commissioner of Corrective Services NSW, on the 11th February 2019:
- “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.”
As of the 6th February 2019, the Northern Territory Corrective Services is in the process of providing a formal response.
Statement from Andrew Beck, the Deputy Commissioner of Queensland Corrective Services (QCS), on the 12th March 2019:
- “QCS has in place a formal arrangement with the Australian Electoral Commission (AEC) in which QCS provide s information on a monthly basis and as required to assist the AEC to update the electoral roll.”
- “QCS liaises with the relevant electoral commission on key dates to assist in preparing for prisoners voting.”
- “QCS displays posters within all units of correctional centres to provide advice to prisoners about voting, including when a prisoner may enrol or update their enrolment details, eligibility to vote, and key voting dates… Enrolment forms are provided to prisoners on request, and QCS provides assistance to prisoners to confirm their identity in accordance with the requirements of the AEC.”
Statement from David Brown, the Chief Executive of South Australia’s Department for Correctional Services, on the 18th February 2019:
- “The Department for Correctional Services (DCS) has recently confirmed the process for the upcoming 2019 Federal Election with the Australian Electoral Commission (AEC).”
- “Prisoner voting enrolment forms will be made available to those prisoners who are eligible to vote, for return to the AEC by post.”
- “Voting papers will then be addressed directly to each prisoner and sent to their attention at their current institution.”
Statement from Ian Thomas, the Director of Tasmania Prison Service, on the 29th January 2019:
- “I confirm that necessary arrangements exist for those prisoners that are eligible to vote. Voting generally occurs by way of a postal vote. Applications and other relevant information are supplied to the TPS by the Australian Electoral Commission and made available to all prisoners within TPS facilities.”
Statement from Rod Wise, the Deputy Commissioner of Operations from Corrections Victoria, on the 30th January 2019:
- “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”
As of the 5th February 2019, the Western Australia Corrective Services Department, is in the process of providing a formal response.
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 responded by stating that he was unsure if psychiatric patients retain the right to vote. 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
As of the 12th February 2019, the ACT Local Hospital Network Directorate was contacted via email 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
To address this issue in NSW, Justice Action contacted the 16 Local Health Districts (LHD) that have jurisdiction to deal in this matter. 6 LHDs have provided a formal response, 7 LHDs have acknowledged the receipt of our email but have not provided a formal response, while 3 LHDs have not responded to our queries. Justice Action will continue to follow-up on the LHDs that have yet to respond.
- The following LHDs have responded to our emails with these statements:
- Steve Rodwell, Chief Executive of the Far West LHD: “I have brought this issue to the attention of the operational managers to ensure that our mental health patients have the opportunity to vote in any upcoming election.”
- Jill Ludford, Chief Executive of the Murrumbidgee LHD: “Staff will ensure consumers are aware to enrol, if they are not already enrolled, and will assist them to enrol if they wish… The staff will ensure that the posters and relevant information is available to all inpatient consumers.”
- Wayne Jones, the Chief Executive of the Northern NSW LHD: “Northern NSW LHD works in partnership with the Australian Electoral Commission to support the rights of patients to be enrolled to vote, and participate in the electoral process.”
- Angela Karooz, the Director of Operations of the South Eastern Sydney LHD, responding on the Chief Executive’s behalf: “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.”
- Cherie Puckett, Director of Mental Health Drug and Alcohol, Cancer, Renal, Palliative Care and Breast Screen of the Southern NSW LHD: “The AEC has provided an opportunity to support inpatient Mental Health facilities. Those people who are not registered with the electoral commission will be supported and encouraged to enrol and vote through consumer advocate support.”
- Robynne Cooke, the Chief Executive of the Western Sydney LHD: “Mental Health staff are providing support to inpatients who may not be on an electoral role, while assistance will also be provided to patients who require postal vote enrolment applications.”
- The following LHDs have acknowledged the receipt of our email but have not provided a formal response: Central Coast, Hunter New England, Mid North Coast, Northern Sydney, South-Western Sydney, Sydney and Illawarra Shoalhaven.
- The following LHDs have not provided any response to our emails: Justice Health and Forensic Mental Health Network, Nepean Blue Mountains and Western NSW.
Justice Action has contacted all 3 Health Networks (HN) of the Northern Territory but has only received a response from the Central Australia HN so far. Justice Action will continue to follow-up on the HNs that have yet to respond.
- The Northern Territory Primary Health Network has acknowledged the receipt of our email on the 19th February 2019. However, no formal response has been provided.
- The Top End Health Service has acknowledged the receipt of our email on the 12th February 2019 and stated that a formal response will be provided to us shortly.
- The Central Australia Health Service responded to our email with the following statement: “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.”
In Queensland, of the 16 Health Networks (HN) that have been contacted, 1 has responded, 3 have acknowledged the email but has not provided any formal responses, while 12 of the HNs have not responded to our queries at all. Justice Action will continue to follow-up on the HNs that have yet to respond.
- The following HNs have responded to our emails with these statements:
- Dr Thomas John, Delegate Chief Psychiatrist of Queensland’s Department of Health: “Queensland Health, while independent of elections, makes all reasonable efforts to ensure patients are able to vote in elections. Polling booths are set up in the larger public hospitals and staff are encouraged to assist all patients, where possible, to access their entitlement to vote.”
- The following HNs have acknowledged the receipt of our email but have not provided a formal response: Cairns and Hinterland, Central Queensland and Sunshine Coast.
- The following HNs have not provided any response to our emails: Central West, Darling-Downs, Gold Coast, Mackay, Metro North, Metro South, North West, South West, Torres-Strait Northern Peninsula, Townsville, West Moreton and Wide Bay.
In South Australia, of the 6 Health Networks (HN) have been contacted, 1 has responded, 1 has acknowledged the email but has not provided a formal response, while 4 of the HNs have not responded to our queries at all. We also emailed the Chief Psychiatrist of SA, but did not receive any response. Justice Action will continue to follow-up on the HNs that have yet to respond.
- Peta Towner, the executive assistant to the Commissioner of SA Mental Health Commission, has responded to our email with the following statement: “The SA Mental Health Commission has no statutory authority to liaise with the Australian Electoral Commission on behalf of people in psychiatric hospitals.”
- The Department of Health and Wellbeing SA has acknowledged the receipt of our email but has not provided a formal response.
- The following HNs have not provided any response to our emails: Central Adelaide, Country Health SA, Northern Adelaide, Southern Adelaide and SA Mental Health Commission.
In Tasmania, we contacted Dr Aaron Groves, the Chief Psychiatrist of Tasmania and the Department of Health and Human Services. Both have acknowledged the emails. The Chief Psychiatrist referred the issue to the Tasmanian Health Service.
In Victoria, 14 out of 15 Health Networks (HN) were contacted, 2 have responded, 4 have acknowledged the email but has not provided any formal responses, while 8 of the HNs have not responded to our queries at all. Justice Action will continue to follow-up on the HNs that have yet to respond.
- The following HNs have responded to our emails with these statements:
- Felicity Topp, Chief Executive of Peninsula HN: “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 co-ordinated by our Corporate and Community Relations team and is managed very well preceding every election.”
- Paula Hakesley, General Manager Mental Health program of Monash HN: “I am able to provide assurance that our consumers are able to vote and have all necessary documentation and assistance available to them to ensure that they can do so.” They order posters from the AEC, download “easy read” brochures, also in languages other than English that are made available to the units. Consumer Peer Support Workers on impatient units will discuss enrolment forms with consumers, as well as supporting patients to go the website, or providing them with enrolment forms that are obtained from the post office.
- The following HNs have acknowledged the receipt of our email but have not provided a formal response: Albury-Wodonga, Alfred, Eastern, Melbourne, and Northern.
- The following HNs have not provided any response to our emails: Austin, Ballart Health Services, Barwon, Bendigo, Goulburn Valley, The Royal Women’s Hospital, Western.
In Western Australia, 12 of the Health Networks (HN) were contacted, 1 has responded, 3 have acknowledged the email but has not provided any formal responses, while 8 of the HNs have not responded to our queries at all. Justice Action will continue to follow-up on the HNs that have yet to respond.
- The following HNs have responded to our emails with these statements:
- Shauna Rose, Coordinator Executive Services of Great Southern HN: “In the event that a person is a patient during an election, eligible patients are able to cast their vote from the APU. The protocols for voting within the Albany hospital that are used by all patients of the hospital are available to patients in the APU.”
- The following HNs have acknowledged the receipt of our email but have not provided a formal response: East Metropolitan, Kimberly, WA Country.
- The following HNs have not provided any response to our emails: Chief Psychiatrist of WA, Dr Nathan Gibson, Child and Adolescent, Goldfields, Midwest, North Metropolitan, Pilbara, South Metropolitan, South West.
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.
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.
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.
Report: Enrolment to Vote
in Prisons and Hospitals 2016
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.
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.
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.
“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