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Voting Rights and Intellectual Disability

23 January 2018 

RE: Voting Rights and intellectual disability

Dear Senator Reynolds,

I am writing to you in your role as chair of the Senate Joint Standing Committee on Electoral Matters regarding the voting rights of people with an intellectual disability.

As you would be aware, s 93(8)(a) of the Commonwealth Electoral Act 1918 states that a person of ‘unsound mind’ who is ‘incapable of understanding the nature and significance of enrolment or voting’ is not entitled to have their name on the electoral roll or to vote in any Senate or House of Representatives election.

Down Syndrome Australia has a number of concerns about this part of the legislation including:

  • Inappropriate language to describe intellectual or psychosocial disability. The ALRC noted “The phrase ‘unsound mind’ is considered ‘derogatory, judgemental and stigmatising”
  • A lack of a legal definition of “unsound mind”
  • The reliance on medical practioners to make a determination on whether an individual is capable
  • of understanding the nature and significance of voting
  • Taking a medical approach to disability
  • Not being consistent with the UN Convention on the Rights of People with a Disability in terms of supporting the right of people with an intellectual disability to participate in voting.

The recent case of a young woman with Down syndrome who had been taken off the electoral roll, and wanted to be placed back on the roll illustrates that the current legislation is very ambigious and dependent on circumstances. A medical practioner may decide a person is of “unsound mind” where as with support that same person may be able to participate in voting. A medical practictioner has neither the time nor necessarily the skills to assess the capacity of an individual to participate in voting.

In 2014, the Australian Law Reform Commission recommended that the Commonwealth Electoral Act be amended to repeal these provisions. DSA strongly supports the ALRC recommendation that this provision of the Electoral Act should be repealed and replaced with a new exemption from compulsory voting for those who lack decision-making ability relating to voting.

I understand that these issues have been debated on numerous occasions, and in 2012 the members of the Standing Committee considered ammendments to the Act and determined “the committee is not satisfied that there is any pressing need to remove or substitute the phrase ‘unsound mind’, or that professionals other than medical practitioners should be able to make determinations about a person’s capacity to understand the nature and significance of enrolment and voting.”

Given the progress that has been made in Australia in terms of the NDIS and greater community understanding about the rights of people with a disability, it is time for this issue to be revisited.

It is inappropriate for Australia to continue to rely on outdated language and approaches which potentially limit the rights of people with intellectual disability, and provide no guarantee that they have been consulted or involved in the decision as to whether they should remain on the electoral roll.

I appreciate your consideration of this matter as Chair of the Joint Standing Committee on Electoral Matters.

I would welcome an opportunity to meet with you to discuss this further. I can be contacted at ellen.skladzien@downsyndrome.org.au or 0421 237 657.

Kind Regards,

Dr Ellen Skladzien
CEO Down Syndrome Australia

cc: Mr Andrew Giles, MP 

 

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