Repeal of the ‘unsound mind’ provisions

9.5          Under the Electoral Act, persons of ‘unsound mind’ are not entitled to have their names on the electoral roll or to vote in elections, and may be removed from electoral roll following objection. The ALRC recommends that these provisions be repealed.

9.6          Section 93(8)(a) and pt IX of the Electoral Act provide for a person’s entitlement to enrolment, their right to vote and objections to enrolment. Section 93(8)(a) provides that a person is not entitled to have their name placed or retained on the electoral roll, or to vote at any Senate or House of Representatives election, where they are a person ‘who by reason of being of unsound mind, is incapable of understanding the nature and significance of enrolment and voting’.

9.7          There are several steps involved in removing a person from the electoral roll:

• a written objection must be lodged by an enrolled elector;^[3]
• the objection must be supported by a medical certificate;^[4]
• the AEC must give the individual an opportunity to respond to the written objection;^[5] and
• the Electoral Commissioner determines the objection after making necessary inquiries.^[6]

9.8          In 2012, the AEC submitted evidence to the Joint Standing Committee on Electoral Matters that 28,603 people were removed from the electoral roll on the basis of the unsound mind provision from 2008–2012.^[7] People with Disability Australia (PWDA), the Australian Centre for Disability Law (ACDL) and the Australian Human Rights Centre (AHR Centre) criticised provisions of this type, which ‘all too often’ seek to remove or limit a person’s legal agency to exercise their rights:

Frequently, this is due to a conflated understanding of legal capacity with mental capacity. For example, provisions which make exception for people with ‘unsound mind’, ‘disability’, ‘mental incapacity’ or ‘incompetence’ are expressing the view that the existence of a cognitive impairment permits a limitation on the exercise of legal agency and thus recognition of legal capacity as a whole.^[8]

9.9          The policy objective of the provision is protective, to allow some persons with disability to be excused from the compulsory duty to vote. The Australian Government has stated that ‘these arrangements and review rights ensure that the rights of people with disability are not encroached’ and that the provisions are ‘considered to be consistent with Article 29 of the Convention [CRPD]’.^[9] Most democratic countries have some capacity-related qualification for voting.^[10]

9.10       In Roach v Electoral Commission, the High Court found s 93(8)(a) of the Electoral Act to be constitutionally valid and stated that:

It limits the exercise of the franchise, but does so for an end apt to protect the integrity of the electoral process. That end, plainly enough, is consistent and compatible with the maintenance of the system of representative government.^[11]

9.11       The Joint Standing Committee on Electoral Matters reviewed the unsound mind provision in s 93(8)(a) and concluded that, given Australia’s system of compulsory enrolment and voting, it provides a useful mechanism ‘to protect the integrity of elections and assist those who might otherwise have to deal repeatedly with the AEC as to why they are not complying with their enrolment and voting obligations’.^[12]

9.12       Stakeholders pointed to recent commentary on art 29 of the CRPD, indicating that a person’s capacity should not affect their right to vote. In particular, in April 2014, the UNCRPD stated that, in order to realise the legal capacities of persons to participate in public and political life:

a person’s decision-making ability cannot be a justification for any exclusion of persons with disability from exercising their political rights, including the right to vote, the right to stand for election and to serve as a member of a jury.^[13]

9.13       The Human Rights Law Centre suggested that this statement is a consolidation of the movement ‘away from a medical and protectionist view of disability towards a social and rights based approach in which people with disability have a right to enjoy equal legal capacity’.^[14]

9.14       This move towards a social theory of disability is illustrated by a 2013 decision of the UNCRPD. In Zsolt Bujdosó v Hungary, the UNCRPD held discriminatory and invalid a Hungarian law which sought to comply with the CRPD by assessing the capacity to vote of individuals with intellectual disabilities who were previously automatically disenfranchised as subjects of guardianship. In doing so, the UNCRPD reiterated that:

Article 29 does not provide for any reasonable restriction or exception for any group of persons with disabilities. Therefore, an exclusion of the right to vote on the basis of a perceived or actual psychosocial or intellectual disability, including a restriction pursuant to an individualized assessment, constitutes discrimination on the basis of disability, within the meaning of article 2 of the Convention.^[15]

Entitlement to enrol and vote

9.15       Section 93(8)(a) of the Electoral Act has attracted criticism.^[16] The Human Rights Law Centre stated that the exclusion of persons of ‘unsound mind’ from the franchise ‘is vague, stigmatising and overly broad, and does not reflect the true capacity of people with disabilities to make decisions about voting’.^[17] Other stakeholders considered the provision to be ambiguous.^[18]

9.16       Stakeholders supported removing the unsound mind provision on the basis that it is not consistent with Australia’s international law obligations.^[19] For example, the National Association of Community Legal Centres (NACLC) argued that the ‘most appropriate approach, and one consistent with international law, is to repeal s 93(8)(a) in its entirety and remove any restriction on eligibility for enrolment connected to capability’.^[20]

9.17       The ALRC concludes the unsound mind provision in s 93(8)(a) of the Electoral Act should be repealed. The phrase ‘unsound mind’ is considered ‘derogatory, judgemental and stigmatising’.^[21] As discussed in Chapter 2, words and terms should not be used that tend to lower the dignity of people with disabilities. Arguably, repeal would also be consistent with Australia’s obligations under art 8 of the CRPD.^[22]

9.18       In upholding universal suffrage for persons with disability, the ALRC recognises concerns about maintaining the integrity of the electoral system, especially in the context of compulsory voting. That is, there may be concern about the ‘harm that may be caused by votes cast by persons who are not able to understand the nature and significance of voting’.^[23] However, in practice, no test is conducted when a person seeks to enrol or vote.

In practice the provision is ‘used’ when a person raises a concern with the AEC about another person, initiating a formal process which may result in the removal of the second person from the electoral roll. These concerns are generally raised by persons close to the elector in question, and motivated by what they see as the best interests of the person concerned, for example protecting them from having to respond to repeated penalty notices for failure to vote at successive elections.^[24]

9.19       There is no evidence that reform to remove the unsound mind provisions would cause any new problems with regard to the integrity of the electoral system, undue influence or fraud. If the concern is protecting persons with disability from having to respond to penalty notices, there are solutions that do not involve removing the person from the electoral roll.^[25]

No new threshold test

9.20       Stakeholders were uniformly against adopting any new ‘capacity test’ of the kind proposed by the ALRC in the Discussion Paper.^[26] The Human Rights Law Centre argued that the proposed threshold was both too high and made false assumptions about the decision-making ability required to vote:

Many people with dementia, for example, may have impaired decision-making ability regarding day to day decisions, but nonetheless maintain long-held firm views on which person or parties should be in government.^[27]

9.21       The Public Interest Advocacy Centre (PIAC) highlighted that, in some circumstances, people of ‘sound mind’ do not understand the ‘nature and significance of enrolment and voting’,^[28] but are still entitled to vote.^[29] This perspective was echoed by the Human Rights Law Centre:

Regardless of disability, not all voters cast their vote by understanding, retaining and weighing information relevant to an election (as required by the ALRC’s proposed decision-making test). Requiring individuals with impaired decision-making ability to vote in this way imposes a burden upon people with a disability that is not imposed upon the general population.^[30]

9.22       Trevor Ryan favoured repeal of s 93(8)(a), but argued that the ALRC should ‘focus instead on strengthened regulation of voter fraud and coercion, and greater flexibility in the enforcement of compulsory voting’:

While the proposed amendments (including the criteria, the machinery, and the persons involved in assessing capacity) adopt some of the more progressive elements of the modern, de-medicalised adult guardianship regime, this seems to be premised upon (and entrenches) a problematic conflation of the civil guardianship system and the exercise of political rights.^[31]

9.23       The Australian Government Electoral Reform Green Paper acknowledged there are some concerns about the provision, but considered it as necessary to protect the integrity of the electoral system. It emphasised that

in practice however, no test for ‘soundness of mind’ is conducted when a person seeks to enrol or approaches a polling booth on election day. In practice the provision is ‘used’ when a person raises a concern with the AEC … These concerns are generally raised by persons close to the elector in question.^[32]

9.24       There has been some parliamentary consideration of the unsound mind provision.^[33] The Electoral and Referendum Amendment (Improving Electoral Procedure) Bill 2012 (Cth) presented amendments which would have removed the term ‘unsound mind’ and broadened the range of qualified persons to provide a statement (and not a medical certificate by a doctor) about the elector’s capacity to understand the nature and significance of voting. However, the Australian Government accepted the recommendation of the Joint Standing Committee on Electoral Matters, which was not satisfied that there was any ‘pressing need to remove or substitute the phrase “unsound mind” or that it breaches any international obligations in relation to rights to electoral participation’.^[34]

Removal from the electoral roll

9.25       A person may only be removed from the electoral roll based on an objection supported by a certificate from a medical practitioner.^[35] The medical certificate must state that, in the opinion of the medical practitioner, the elector, because of ‘unsoundness of mind’, is incapable of understanding the nature and significance of enrolment and voting.^[36]

9.26       The ALRC recommends that this provision of the Electoral Act should also be repealed. However, while there should be no new threshold test for enrolment or voting, there should be a new exemption from compulsory voting for those who lack decision-making ability relating to voting.

9.27       State and territory governments should consider repealing comparable provisions in their electoral legislation,^[37] consistently with recommendations relating to the review of state and territory laws.^[38]