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The (restricted) right of people in prison to vote

People sentenced to prison are deprived of their liberty, but they shouldn’t be deprived of their right to have a voice as part of a society. We must ensure that all people in prison retain the right to vote, writes Jesuit Social Services’ Policy, Research and Advocacy Officer DAVID HOPKINS.

A record 96.8 per cent of eligible Australians are enrolled to vote in this weekend’s Federal Election – the most complete electoral roll in the country’s history, according to the Australian Electoral Commission. The fact that more Australians than ever will be able to vote on May 18 is heartening. However, not all citizens of voting age are afforded this democratic right.

2016 Federal Election, various sites, Canberra, ACT for SRH and AEC, 2nd July, 2016

People serving a prison sentence of three years or longer in Australia, regardless of jurisdiction, are not eligible to vote in federal elections or referendums until they are released. This means that, this year, more than 10,000 people sentenced to prison are precluded from casting a ballot, according to the most recent government data. For those serving a prison sentence of less than three years, they are entitled to vote by registering as a general postal voter and voting by post.

People sentenced to prison are deprived of their liberty, but they shouldn’t be deprived of their right to have a voice as part of a society that, in the vast majority of cases, they will re-join.

To this end, we believe that all people in prison should retain the right to vote.

The right of people in prison to vote has long been a source of debate, both here and overseas. In Australia, Indigenous Yuin woman Vickie Roach became the public face of prisoners’ voting rights as part of a High Court challenge to legislation introduced by the Federal Coalition government in 2006 that sought to ban all people in prison from voting in federal polls. The High Court ruled the blanket ban invalid the following year and the current three-year threshold has since stood.

In State and Territory elections, however, the right to vote varies across jurisdictions (see Table 1). While in the ACT and South Australia, all people in prison can vote in their elections, in Western Australia and New South Wales only those serving a sentence of under one year are entitled to vote in state polls.

In Queensland, at the state level, people in prison are disenfranchised altogether. This has led to the incongruous situation where people in prison are able to vote in federal elections and referendums (provided their sentence is under three years) but not in state polls. Earlier this month, the Queensland Government introduced proposed legislation that would bring prisoners’ voting eligibility in line with the federal three-year threshold.

However, even for people in prison who remain eligible to vote, challenges to their participation remain. In past federal elections, the full realisation of their voting rights has been hampered by the failure of relevant correctional services to facilitate enrolment, provide electoral information and register ballots. Documents obtained under freedom of information laws by the ABC showed that less than 1 per cent of an estimated 10,600 enrolment packs provided to New South Wales prisons for people ahead of the 2013 federal election were actually completed and returned.

It must also be recognised that given the significant overrepresentation of Aboriginal and Torres Strait Islander people in prison, any disenfranchisement of the detained population disproportionately affects this group. For a country where Aboriginal and Torres Strait Islander people have only had the right to vote federally since 1962, this should be a matter of foremost concern.

Around the world, the right of people in prison to vote presents a mixed picture. In Canada and Israel, for example, people in prison are entitled to vote. In New Zealand and the United Kingdom, most are not. In some jurisdictions of the United States, people convicted of a crime are banned from voting for life.

In Norway, which was among several countries visited as part of Jesuit Social Services’ #JusticeSolutions tour in 2017, the “principle of normality” guides all levels of the justice system. This approach holds that the punishment is the restriction of liberty — no other rights have been removed by the sentencing court. Life inside prison is intended to resemble life outside prison as much as possible.

Once a person is sentenced to prison, our focus should be on their effective rehabilitation. Stripping people of their right to vote may be seen as an additional punishment and reinforce negative perceptions of disempowerment, seclusion and stigma.

The rehabilitation of people sentenced to prison must include working with them to address underlying issues, offer education, avoid institutionalisation, and maintain connection with family and support networks as much as possible. As part of this, people in prison should be encouraged to exercise their civil and political obligations.

The denial of any persons’ voting rights while in prison is at odds with this rehabilitative vision.