Human Rights

Human Rights

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.

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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.

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2016 Enrolment To Vote Report

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


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.

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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.

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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

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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.

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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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