Australia,‘the most voter-friendly country in the world’? Examining voting rights for people with physical disabilities

Abstract

Despite Australia’s reputation as a jurisdiction with enviable voter enfranchisement and participation procedures, people with physical disabilities are inadequately catered for by federal and state/territory electoral processes. While alternative voting schemes seek to address this issue, they are either too narrowly constructed, carry election integrity risks, or otherwise provide a voting experience lacking independence. This article examines adequate enfranchisement for people with physical disabilities in the context of Australia’s international human rights law obligations, including the case study of Given v Australia. Barriers to full enfranchisement of people with physical disabilities are considered, including cost, logistics and political will.

Australia is regularly celebrated for its robust electoral processes. It utilises weekend elections, long pre-polling periods, independent electoral commissions, and a range of voting methods to ensure broad and genuine enfranchisement. It is also compulsory for adults to vote in Australia and has been for nearly a century, meaning that voting is not only a right but a responsibility. ¹ We identify fondly with scenes typical of Australian elections – cardboard polling stations and pencils, bustling primary schools and community halls, and of course ‘democracy sausage’ sizzles. Australia’s electoral inclusivity measures have led some political scientists to label Australia ‘the most voter-friendly country in the world’. ²

If any jurisdiction is likely to have thorough measures to enfranchise voters with disabilities, then Australia seems a strong candidate. Yet in 2018, the outcome of an individual communication brought against Australia ³ found that electoral processes and practices in place at the 2013 federal election failed in multiple ways to comply with Australia’s relevant obligations under international human rights law, ⁴ including failure to provide adequate independence or secrecy measures in the casting of votes for a voter with a disability. The Committee on the Rights of Persons with Disabilities (‘Committee’), which administers the Convention on the Rights of Persons with Disabilities (‘CRPD’), ⁵ indicated that active steps were required by Australia to rectify the lack of ‘equal basis’ access to voting for people with disabilities. ⁶ Despite significant subsequent discourse and proposals for alternative or augmented voting procedures which would bring Australia into compliance with its obligations, as at 2023 no such change has yet been made.

A 2022 report estimates that around 4.4 million Australians have a disability, equivalent to approximately one in every six people. ⁷ Disabilities are diverse and, as the report indicates, ‘[p]eople [with disabilities] experience different degrees of impairment, activity limitation and participation restriction’. While this article focuses on shortcomings in electoral procedures as they apply to people with physical and motor disabilities, impediments also exist for people with intellectual and other disabilities, particularly an archaic provision in the Commonwealth Electoral Act 1918 (Cth) (‘Electoral Act’) that people of ‘unsound mind’ are not entitled to vote at elections. ⁸ The Australian Law Reform Commission recognised that the provision in question was derogatory and recommended its repeal, ⁹ but – nearly a decade later – the law still remains.

International law and equal basis voting

To understand the meaning of according the right to vote on an equal basis, it is necessary to examine Australia’s obligations under the CRPD. The CRPD came into force in 2008, ensuring the relevant application of many pre-existing rights and duties to the circumstances of people with disabilities, for example through the right to ‘personal mobility with the greatest possible independence’, ¹⁰ and the duty for States to ensure equal access to information for people with disabilities. ¹¹ Australia is party to the CRPD as well as its Optional Protocol, ¹² which creates an avenue for individuals to bring an individual communication against the State if they believe that their rights under the CRPD have been breached.

Article 29 of the CRPD creates certain duties for States to ensure that people with disabilities are not discriminated against in their ability to be involved in voting and other areas of public life, saying, inter alia:

State Parties … shall undertake:

a) To ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others … including the right and opportunity for persons with disabilities to vote … by:

(i) Ensuring that voting procedures, facilities and materials are appropriate, accessible and easy to understand and use;

(ii) Protecting the right of persons with disabilities to vote by secret ballot in elections and public referendums … [and] facilitating the use of assistive and new technologies where appropriate ¹³

This right is not new. Article 29 echoes the right of every person to participate in government and vote in genuine secret ballot elections, first established in Article 21 of the Universal Declaration of Human Rights. ¹⁴ The right is also similarly understood in Article 25 of the International Covenant on Civil and Political Rights (‘ICCPR’) which places voting under the umbrella of ‘conduct of public affairs’. ¹⁵ In 1996, General Comment 25 of the Human Rights Committee stated both that ‘[i]t is unreasonable to restrict the right to vote on the ground of physical disability’ ¹⁶ and that ‘States must take effective measures to ensure that all persons entitled to vote are able to exercise that right’. ¹⁷

In light of these international human rights law obligations, the following statements hold. First, Australia must not discriminate against people with physical disabilities in granting voting rights. Secondly, people with physical disabilities must be provided the opportunity to cast a secret ballot, and that may mean the necessary adoption of specifically adapted processes to ensure that a secret ballot can be cast on an equal basis with other voters. Thirdly, voters in Australia are entitled to cast a ballot without the assistance of another person, and people with a disability are therefore entitled to the same.

People with physical disabilities and voting: the Australian experience

Current voting procedures in Australian federal elections

The Electoral Act sets out the processes and procedures to be used in federal elections in Australia. It is mandatory for every Australian citizen aged 18 years and older, who has lived at a fixed address for more than a month, to have their name on the electoral roll. ¹⁸ The ‘ordinary’ or ‘default’ voting procedure in Australia sees electors attending a polling booth on a designated election day, and casting their vote by marking their preference on a ballot paper and placing it in a ballot box, to be opened and counted by electoral staff following the closing of the voting period. ¹⁹ It is also possible to attend a polling site to vote ahead of time in an election using the same method, ²⁰ or to apply to receive a postal ballot which a voter then marks and posts back to the electoral commission to be counted. ²¹ Voters who attend a polling place in person are required to mark their ballot in private, fold it and place it in the ballot box. ²²

There are some procedures in place for voters who are not able to mark a ballot paper and place it in the ballot box in the manner ordinarily prescribed. A presiding officer (an electoral staffer present at the polling place) may be satisfied that a voter is unable to cast a ballot without assistance and can therefore grant that voter permission to appoint another person to accompany them into a booth to mark, fold and deposit a ballot paper on their behalf. ²³ This option cannot be viewed as carrying the requisite independence or secrecy of providing ‘equal basis’ voting. Where polling places are physically inaccessible to voters with disabilities, there is also a provision which allows a ballot paper to be taken from inside a polling place to a nearby place outside, to be completed there by the voter. ²⁴ Beyond being undignified, this option does not cater to any people whose physical or motor disabilities limit their ability to independently mark a ballot paper under the existing ordinary voting procedure.

An electronic voting process also exists, and the Electoral Act specifies that regulations for elections can stipulate the type of ‘electronically assisted voting system’ to be used. ²⁵ In the past four federal elections, the selected method of electronically assisted voting has been a telephone voting system, where electors pass through multiple phases of identity authentication, culminating in casting a vote by speaking to an operator who records a person’s vote by marking a ballot paper in accordance with the person’s instructions. The electronically assisted voting system is only open to a limited class of electors: Antarctic voters must be offered the option to vote using the system, and it may also be offered to people who are vision impaired. ²⁶ Voters with physical or motor disabilities but who are not vision impaired cannot access electronically assisted voting.

Case study: Given v Australia

In November 2013, an individual communication was brought before the Committee by Australian woman Fiona Given, alleging that Australia had not complied with its Article 29 obligation to provide her with access to secret and independent balloting on an equal basis with others at the 2013 federal election. ²⁷ Ms Given has cerebral palsy, which affects her speech and mobility. She uses a motorised wheelchair for mobility, and an augmentative and alternative communication (‘AAC’) device to speak. She cannot mark, fold and deposit a ballot paper independently in accordance with the procedure set out in s 233 of the Electoral Act. ²⁸ Ms Given is not vision impaired, so was not eligible to use the electronically assisted voting system in operation at that election. However, Ms Given informed the authors of a recent submission that, even if she had been eligible, she would not have been able to use the telephone voting system offered under s 202AB of the Electoral Act as the delays inherent in the use of her AAC device would not be comprehended by that system. ²⁹ Ms Given voted in the 2013 federal election with the assistance of her personal carer, but she was not comfortable with this arrangement as she did not wish to share her voting intention with her carer, and thereby undermine the secrecy of her ballot. ³⁰

In its final views in Given v Australia, the Committee found that Australia had breached Ms Given’s right to an equal basis vote by failing to ensure that voting procedures were adequately accessible, and indicated that Australia needed to use assistive technologies to protect the right to vote for all people with disabilities – not only those with impaired vision. ³¹ In response to Ms Given’s observation that the assisted voting process she used at the 2013 federal election was not sufficiently secret, ³² the Committee indicated a need to keep confidential the contents of the person’s vote through new legal obligations applicable to people who assist a person with a disability in the casting of their vote. ³³

Other evidence of insufficient electoral procedures for people with disabilities

Beyond its views in Given v Australia, the Committee delivered a response in 2019 to Australia’s second and third period report on CRPD compliance in Australia, reiterating that Australia needed to ‘develop measures, with adequate resources, to ensure the full accessibility of electoral processes and guaranteeing secret voting rights’. ³⁴ Disability advocacy group Blind Citizens Australia shared the view that, even for vision impaired voters eligible to use electronically assisted voting at federal elections, the system inherently requires the disclosure of one’s voting intention to an operator on the telephone, rendering it ‘not anonymous and not completely independent’. ³⁵

State, territory and local electoral systems and people with disabilities

While it is Australia’s federal government that accedes to international human rights treaties, state, territory and local governments are also bound by these obligations. In Australia, each state and territory sets its own electoral procedures for elections within that jurisdiction, which must comply with Australia’s CRPD and other treaty obligations. All states and territories have schemes in place creating some form of electronically assisted voting scheme for people with disabilities. With the exception of Victoria, all of these schemes are discretionary – an authorised figure (usually the Electoral Commissioner) may choose to use electronically assisted voting at an election, and select the method of electronic voting used. ³⁶ In Victoria, the use of an electronically assisted voting system is compulsory at each election but, similar to schemes operating federally and in many other Australian jurisdictions, the group of voters eligible to use the scheme is restricted to those with vision impairments. ³⁷

New South Wales (NSW) has in recent years adapted a method for accessible voting by people with disabilities, acknowledged by various disability advocacy groups (and by Ms Given herself) as sufficiently independent for CRPD purposes. ³⁸ The system, known as iVote, provides an entirely online voting platform available to all NSW electors with disabilities. ³⁹ However, while iVote may satisfy some independence requirements, election security experts have noted that its design makes it inherently insecure and therein does not guarantee the secrecy of ballots cast using the system. ⁴⁰ Cryptographer Vanessa Teague argues that the risk of undetected errors and the reality that electronic voting is unverifiable (that is, the voter cannot confirm with absolute certainty that the vote preferences they provided were submitted verbatim to be counted) render both iVote and telephone voting systems insufficiently secret. ⁴¹ Moreover, the NSW Electoral Commissioner determined in March 2022 that iVote would not be used at the 2023 state election, following cited ‘irregularities’ in the system at three local government elections. ⁴²

Barriers to proper enfranchisement for people with disabilities

When considering the lack of progress to date in advancing equal basis enfranchisement for people with disabilities, two barriers to meaningful change are apparent: cost and political will.

Costs and logistical issues

Running elections is expensive. The 2019 Australian federal election cost over AU$372 million. ⁴³ At that election a little over 14 million valid votes were cast, with total election expenses running at roughly $26.13 per valid vote. While data is not released on the cost of the electronic voting systems currently in use, a 2007 trial of in-person electronic voting for blind and low-vision voters had that technology costing around $2597 per vote. ⁴⁴ The trial was limited to 30 pre-poll voting centres, ⁴⁵ and thus its costs are not indicative of a full-scale adoption of such a system. Nonetheless, federal parliament’s Joint Standing Committee on Electoral Matters (‘JSCEM’) dismissed spending of the 2007 trial’s magnitude – even with prospective scalable reductions in cost per unit – as unfeasible. ⁴⁶ The iVote system had a much lower cost per vote, ⁴⁷ but its secrecy and security shortcomings mean it cannot provide an appropriate solution.

Lack of political appetite

Perhaps the most significant barrier to proper enfranchisement is a lack of political will in Australia to comprehensively reform the electoral system so that people with disabilities are equally able to vote in elections. The complexity of the task is certainly a contributing factor – JSCEM considers numerous conflicting submissions on the efficacy of different proposed voting systems and on their requirements each time it reviews an election. Perhaps unsurprisingly, JSCEM has to date provided neither detailed recommendations to Parliament to guide further exploration of any specific electronically assisted voting method, nor translated its considerations into legislative or regulatory action.

Further, the non-binding nature of Committee findings like those in Given v Australia or in its periodic review of Australia’s compliance with the CPRD mean there is no enforceable burden on the government to act, and accordingly such findings are not given great weight. In its published response to the Given v Australia final Views, Australia disagreed with the conclusions of the Committee on its failure to provide a secret ballot to Ms Given and argued that it would consider making changes at a more expedient time in the political cycle (an election was months away at the time). ⁴⁸ However, no changes were made in the following three-year political cycle, as other issues emerged as priorities.

Conclusion

Australia, despite its voter-friendly reputation, does not extend voting franchise to people with physical disabilities on an equal basis with others. Although there is growing awareness of the problem, and formal findings of breaches of Australia’s CRPD obligations have been made, to date Australia has not taken action to amend this situation. Notwithstanding the country’s undertaking to be bound both by the CRPD and its Optional Protocol, a lack of political will in Australia remains to amending systemic electoral shortcomings. By its ongoing inaction, Australia deprives an identifiable group of people the right to vote on the same terms as other Australians and compromises the right to secret and independent voting that sits at the cornerstone of Australian democracy.