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.
The issue of enrolment to vote is a basic human right to which all prisoners and patients are entitled. It grants them a voice, allowing them to participate in the democratic process, engage positively with the community, and actively contribute to society. It is essential to uphold the right of enrolment and voting for prisoners by ensuring the provision of enrolment to vote forms in order to update their addresses and help them successfully enrol for elections. Further, prisoners who have been removed from the electoral roll should be automatically reinstated upon release. The status quo does not reflect this and as a result, many prisoners are falling through the cracks and their votes and voices go unheard. We are currently negotiating with the Electoral Commissions of all jurisdictions to remedy this issue.
The Enrolment Process
Voting is a fundamental human right upheld in Australia through compulsory enrolment since 1924. This demonstrates our nation’s dedication to achieving a democratic process that accurately reflects public opinion. In failing to enrol inmates in the voting system, Electoral Commissions across Australia are obstructing this democratic process. Presently detained people in prison and hospitals are a significantly under-represented and disenfranchised part of society. Further, they are disproportionately affected by government policy, even following their release. The General Manager of Australia’s largest prison, the Metropolitan Remand and Reception Centre in Silverwater NSW, believed ‘only two people’ voted in the 2013 Federal Election.
After the Federal Election in 2013, Justice Action released a report highlighting the inconsistency across organisations in states and territories regarding the recognition of universal suffrage for people in prison and forensic hospitals. Significant concerns were raised that these organisations had not fulfilled their responsibility as state carers to ensure inmates were enrolled to vote.
Justice Action has two primary goals in this area. Firstly, we are committed to ensuring eligible individuals in prisons and forensic hospitals enrol for elections and get a postal vote. Secondly, we aim to ensure those disqualified from voting are reinstated at the end of their sentence.
In 2015, Justice Action began a series of enquiries to the various Electoral Commissions of all the states and territories of Australia and New Zealand to ascertain what measures were put in place to ensure the enrolment to vote in prisons and hospitals.
Voting in Australia and New Zealand requires an individual to enrol to vote first. When a person loses their place of residence upon incarceration or hospitalisation, they are not notified with relevant voting information nor automatically assigned a postal vote.
There is a unique situation for people in prison whereby their residential address (the prison) is distinct from their prior residential address to which their voting registration applies. It means under the current system, these individuals don’t receive the relevant notices. This is a problem that hasn’t been properly resolved, but could be handled very easily because a person under state control in a prison or hospital is clearly identifiable and their voting status should be officially known. Therefore, prisoners should automatically have their addresses updated and be enrolled upon their reception into the facility, in order to qualify them for postal voting. This provides a special opportunity for the various Electoral Commissions to ensure that inmates are fully compliant with mandatory voting.
Further, after completing their sentence, ex-prisoners should automatically have their voting disqualification lifted, and be required like any other citizen to vote in their next election. Unfortunately, due to the skewed proportion of low-socioeconomic persons within our prison and hospital systems, many former inmates are procedurally denied their right to vote and ‘slip through the cracks’ of the current bureaucratic system.
The Right to Vote in Incarceration
The existing law in Australia only allows prisoners incarcerated for less than three years to vote in federal elections, while the law in NZ disallows all prisoners from voting.
In Roach v Electoral Commissioner, the 2006 amendment of the Commonwealth Electoral Act 1919 (Cth) that disqualified prisoners from voting in Federal elections directly abrogated the implied right to vote under the Australian Constitution. Consequently, the amendment was deemed invalid under s7 and s25 of the Constitution resulting in the restoration of the previous statute. It is now time for Australia to uphold these principles they espouse on an international level by ensuring inmates and hospital patients can exercise this democratic right to vote.
In 2015, the Supreme Court in New Zealand found the statute removing the right of prisoners to vote was inconsistent with their Bill of Rights and a parliamentary committee was established to review current laws. In his conclusion, Justice Heath stated the law was inconsistent with the most fundamental aspect of democracy: the right of all citizens to elect those who govern them.
Conditions in prisons and mental hospitals are not conducive for ensuring universal suffrage. These inmates, having limited interaction with the outside world, require support to be properly informed and meet their civic duties. The majority of prisoners are not provided with forms to update their enrolment, or with the necessary information to be an educated participant in the electoral process. Inmates are also frequently disconnected from society, which can remove any personal desire to enrol to vote.
The state of Victoria commissioned a report in 2010 entitled ‘Prisoners in Voting’ outlining the appalling record of voting in prisoners and various methods to increase the number of inmates who are enrolled to vote. The report detailed that only around 26% of prisoners serving a three-year sentence or less were enrolled to vote. A significant barrier was the attitude of prisoners, who largely believed no personal benefits were conferred by voting. This attitude shifted significantly when the inmates were told their vote was equally as valuable as any citizen’s in contributing to government policy. A more positive impression of voting was created immediately within the inmate population.
One of Justice Action’s primary goals is to educate inmates of their civic rights and responsibilities. We believe in conjunction with state Electoral Commissions, we can achieve a higher rate of voting enrolment amongst prisoners.
Enrolment in voting is critical to building a relationship between inmates in prisons and hospitals and the broader Australian and New Zealand communities. Our primary concern is ensuring these individuals gain access to information and forms pertaining to their enrolment and voting responsibilities. Justice Action believes it is an immensely important duty for electoral commissions in each state and territory to maintain the status of prisoners and patients on the electoral roll. The ideal time for state Electoral Commissions to communicate with individual prisons is upon reception, where prisoners should update their enrolment and also receive “how-to-votes” like those received by the general population. Just Us is an informational newsletter that would provide valuable enrolment knowledge to prisoners, and should be distributed in prisons. These would be the most effective methods to ensure maximum enrolment amongst prisoners.
Our secondary concern is to ensure that upon release, prisoners and patients are automatically reinstated on the electoral roll so that they are given the right to vote, just like any other citizen. We believe an inmate who has served their sentence should not have to manually satisfy the procedural requirements of reinstatements, as this important civic role can too easily be forgotten among the many more immediate concerns of a person just released from incarceration.
Response of Each State
In May 2015, Justice Action sent proposals to all of the Australian states and territories, as well as New Zealand, voicing our concern with regards to their inactivity towards ensuring inmates are enrolled to vote. The proposal outlined several ways through which they could rectify the problems of under-registration and failure to re-enrol, including automatically updating prisoner addresses by providing forms upon their reception to the facility, enrolling them if they are eligible, and re-enrolling them upon exit of the facility if they were disqualified.
Throughout 2016, we have been engaging state Electoral Commissions to work with Correctional Facilities Officers to ensure that democratic rights are being upheld. These state Electoral Commissions have been reluctant to enact this change. However, Justice Action is committed to advocating for these organisations to uphold their responsibilities towards prisoners.
More recently, Justice Action has been investigating the enrolment of individuals incarcerated in hospitals. This is a contemporary issue that needs to be addressed and adjusted within the Australian legal system. Mental health patients are vulnerable to disenfranchisement if they are deemed to have an ‘unsound mind’ by a medical specialist.
After a series of interactions, one Electoral Commissioner, agreed that there are problems with enrolment in prisons and will look into the issue with the AEC. He also decided to conduct further investigation into the status of enrolment into locked hospitals.
Another Electoral Commission has stated there was a known loophole that information they receive from Corrective Services cannot be used to enrol prisoners on demand. They have also stated they will use the information to enrol prisoners and notify them if they are eligible but not enrolled.
Justice Action has also been negotiating with several different Electoral Commissions about the distribution of the Just Us newsletter in prisons and locked hospitals. Just Us is a newsletter containing information about the different electoral candidates, as well as the different methods to enrol in prisons.
Voting is the bedrock of democracy and grants citizens an active voice to shape how their nation is governed. Disenfranchising prisoners and patients ostracizes them further from the community and entrenches inequality.
Justice Action is committed to ensuring prisoners and hospital patients exercise their civic duties as a way to normalize their lives as part of their rehabilitation. Ultimately, we believe that the responsibility lies with state Electoral Commissions to support the voting process by ensuring that inmates satisfy the procedural requirements to enroll and vote. 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 upon release.