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Lead Author: Oliver Ellis | Publish date: 07/9/2024
Problem Identification:
In Australia, incarcerated people serving a sentence of 3 years or more are not entitled to vote in federal elections or referendums.
In the 2019 federal election, over 10,000 people in prison were excluded from voting due to this provision.
This means that a significant portion of people in prison are denied the fundamental right to universal and equal suffrage as enshrined in the International Covenant on Civil and Political Rights (ICCPR). This may limit their ability to contribute to decisions that may affect them upon release, particularly for those communities that are more likely to be affected by higher rates of incarceration.
Context:
Part VII of the Commonwealth Electoral Act 1918 stipulates that a person serving a sentence of imprisonment of 3 years or longer is not entitled to vote in any federal election or referendum. This means people in prison are the only substantial demographic of the adult Australian citizenry (aside from those deemed ‘mentally unsound’) not entitled to enrol or vote in federal ballots.
State and Territory restrictions on the right to vote in state or territory elections whilst serving a prison sentence vary.
In jurisdictions where incarcerated people are not allowed to vote, the overrepresentation of certain groups in the prison system can lead to their underrepresentation in voting. Overrepresented groups in prison include Aboriginal and Torres Strait Islander people, people with disability, and younger people.
The Joint Standing Committee on Electoral Matters is currently conducting an inquiry into civics education, engagement, and participation.
In their submission to said inquiry, Run For It called for all incarcerated people to have the right to vote. Similarly, Jesuit Social Services (JSS) advocates for full franchise for people in the prison system. They highlight that, given the overrepresentation of Aboriginal and Torres Strait Islander people in prison, disenfranchisement also disproportionately affects this group. They say that unrestricted voting rights could allow highly incarcerated communities to more effectively participate in the policymaking areas that may affect them upon release.
There are precedents for people in prison exercising their full voting rights both nationally and internationally. Incarcerated people in the ACT and South Australia have no restrictions on voting within their respective electoral systems, and all imprisoned people in countries such as Canada, Norway, and Kenya are entitled to vote.
Solution Identification:
Amend section 93, Part VII of the Commonwealth Electoral Act 1918 (Cth) to omit '8AA' which states that a person who is serving a sentence of imprisonment of 3 years or longer is not entitled to vote at any federal Senate or House of Representatives election.
This could give people in prison serving sentences of 3 years or longer the right to enrol and vote in Commonwealth elections and referendums. This could allow incarcerated people to use their vote to influence policy decisions that may affect them upon release.
Advice:
The Special Minister of State should amend Section 93 of Part VII of the Commonwealth Electoral Act 1918 to remove (8AA) at the earliest opportunity.
Public Support:
Justice Action: https://justiceaction.org.au/prisoners-right-to-vote/
Where to go to learn more:
Jesuit Social Services, The (restricted) right of people in prison to vote:
Voting Rights in Prison: Issues Paper: https://law.uq.edu.au/files/60196/REP_PBC_MsP_Voting_Rights_Australian_Prisons_FIN_20200715.pdf
Human Perspective:
In 2023, David was serving a 4-year sentence at Beechworth Correctional Centre in Victoria. He was confused because, even though he could vote in Victorian state elections, he was not allowed to vote in any federal election or referendum. He expressed that the rules seemed inconsistent and unfair. He felt that he was already being punished by being in prison, and that any further restrictions on his rights were unnecessary. He’s upset when he reflects on the fact that, as an Aboriginal man, he was not able to vote in the 2023 Australian Indigenous Voice referendum. David was concerned that he and his fellow prisoners were not able to express their opinions and needs through voting.
Conflict of interest/acknowledgment statement:
N/a.
Support
If your organisation would like to add your support to this paper, or suggest amendments, please email Info@foreaustralia.com.
Reference list:
Australian Government. (2023). Commonwealth Electoral Act 1918.
https://www.legislation.gov.au/C1918A00027/latest/text
Australian Institute of Health and Welfare. (2023). Adults in Prison. Australian Institute of Health and Welfare website.https://www.aihw.gov.au/reports/australias-welfare/adults-in-prison
Churchill, M. (2020). Voting Rights in Prison: Issues Paper. University of Queensland. https://law.uq.edu.au/files/60196/REP_PBC_MsP_Voting_Rights_Australian_Prisons_FIN_20200715.pdf
Davidson, J. (2004). Inside outcasts: prisoners and the right to vote in
Australia. Information and Research Services Parliamentary Library, Current Issues Brief No.12 2003-04.https://parlinfo.aph.gov.au/parlInfo/download/library/prspub/06MC6/upload_binary/06mc63.pdf;fileType=application%2Fpdf#search=%22library/prspub/06MC6%22
Hopkins, D. (2019). The (restricted) right of people in prison to vote. Jesuit Social Services. https://jss.org.au/news-and-media/our-thinking/the-restricted-right-of-people-in-prison-to-vote/
Human Rights Law Centre. (2022). Submission to the Inquiry into the 2022 federal election, sub 418.https://www.hrlc.org.au/submissions/2022/11/22/federal-government-must-pursue-ambitious-reforms-to-secure-a-healthier-democracy-2022-election-review
Orr, G. (1998). Ballotless and behind Bars: The Denial of the Franchise to Prisoners. Federal Law Review, 26(1), 55-82.https://doi.org/10.22145/flr.26.1.3
Prisoner’s Right to Vote. (n.d). Justice Action.https://justiceaction.org.au/prisoners-right-to-vote/
The right of prisoners to vote: a global overview. (2016). Penal Reform International.https://www.penalreform.org/resource/right-prisoners-vote-global-overview/
Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. (2020). People with disability overrepresented at all stages of the criminal justice system. Disability Royal Commission website.https://disability.royalcommission.gov.au/news-and-media/media-releases/people-disability-over-represented-all-stages-criminal-justice-system
Run For It. (2024). Submission to the Inquiry into civics education, engagement, and participation in Australia. https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Electoral_Matters/Civicseducation/Submissions
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