20.05.2014

Summary

9.1 Australia has obligations under the United Nations Convention on the Rights of Persons with Disabilities (CRPD) to guarantee that people 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.^[1]

9.2 This chapter discusses issues which arise in relation to Commonwealth electoral law for people who may require decision-making support. It has three parts. The first part focuses on the sections of the Commonwealth Electoral Act 1918 (Cth) which relate to entitlements to enrol and vote and objections to enrolment. The ALRC proposes amendment to s 93(8)(a), commonly referred to as the ‘unsound mind’ provision, to provide that the relevant threshold is whether a person has decision-making ability with respect to enrolment and voting at the relevant election. The ALRC also proposes the introduction of a statutory test for determining whether a person meets the relevant threshold, focusing on the decision-making supports available; the development of additional guidance in relation to the determination; and that the Australian Electoral Commission (AEC) collect and make publicly available information about the new provisions. The ALRC asks a question about the evidence required to support an objection to enrolment.

9.3 The second part of the chapter relates to supported decision-making and voting. The ALRC proposes amendment to s 234(1) of the Commonwealth Electoral Act which provides a form of supported decision-making, and asks what further changes, if any, are required to the Act or relevant legal frameworks to facilitate the provision of support to people who may require decision-making support, including by secret ballot.

9.4 The third part of the chapter discusses compulsory voting and fines for failure to vote. There is a concern that people with disability who are on the electoral roll may be fined disproportionately for failing to vote. An elector may avoid a fine if they had a ‘valid and sufficient reason’ for failing to vote. The ALRC proposes that the Australian Electoral Commission develop guidance material to assist Divisional Returning Officers to determine whether a person with disability has a valid and sufficient reason for failing to vote.

[1]
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 Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) arts 2, 25, 26; International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976); Universal Declaration of Human Rights 1948 art 21.