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