9.1 Australia is obliged, under the United Nations Convention on the Rights of Persons with Disabilities (CRPD), to guarantee that persons with disability can ‘effectively and fully participate in political and public life on an equal basis with others, directly or through freely chosen representatives’, including the right and opportunity to vote and be elected.
9.2 The ALRC recommends that the ‘unsound mind’ provisions of the Commonwealth Electoral Act 1918 (Cth) (the Electoral Act), which relate to disqualification for enrolment and voting, be repealed. The removal of the unsound mind provisions is consistent with the recommendation by the United Nations Committee on the Rights of Persons with Disabilities (UNCRPD) that Australia ‘enact legislation restoring the presumption of the capacity of persons with disabilities to vote and exercise choice; and to ensure that all aspects of voting in an election are made accessible to all citizens with a disability’.
9.3 The ALRC recommends a new exemption to compulsory voting based on a functional test consistent with the National Decision-Making Principles. A person without decision-making ability in relation to voting should be exempt from the penalties arising from failure to vote. The Australian Electoral Commission (AEC) should provide guidance material, consistent with the National Decision-Making Principles, to assist Divisional Returning Officers (DROs) to determine whether or not a person with disability had a valid and sufficient reason for not voting at an election. A person should be able to claim an exemption, or an exemption should be granted by a DRO.
9.4 Where a person with disability requires assistance to vote, they should be supported by all available means. The ALRC recommends that current provisions of the Electoral Act concerning permissible support be broadened, and that the AEC provide its officers with guidance and training to improve support in enrolment and voting for persons with disability. As the right to a secret vote is fundamental to the right to vote, but may be compromised by some forms of support, the AEC should also investigate methods of maintaining the secrecy of voting.
UN Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 999 UNTS 3 (entered into force 3 May 2008) art 29. See also Ibid arts 4, 12; International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 25; Universal Declaration of Human Rights 1948 art 21.
Committee on the Rights of Persons with Disabilities, ‘Concluding Observations on the Initial Report of Australia, Adopted by the Committee at Its 10th Session (2–13 September 2013)’ (United Nations, 4 October 2013).