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The right to vote is not enjoyed equally by all Australians

October 2007


A healthy democracy makes sure that all members of the community have equal access to the political process. Australia is a democratic nation where governments are elected by popular vote. However, even though almost all Australians over 18 years old have the right – and the obligation – to vote, not all Australians enjoy that right as a practical matter.

If you are young, live in a rural or remote area, have a disability, are Indigenous, homeless or a prisoner serving a sentence of more than 3 years, your right to vote in a federal election may be restricted as a legal or practical matter.

1. What does it mean to have the human right to vote?


Political participation is the basis of democracy and a vital part of the enjoyment of all human rights. The right of all people to vote in elections, without any discrimination, is one of the most fundamental of all human rights and civil liberties.

The right to vote, without discrimination, is set out in the International Covenant on Civil and Political Rights (article 25) and the International Covenant on the Elimination of Racial Discrimination (article 5(c)). Both of those human rights treaties bind the Australian government. The right to vote is also set out in the Universal Declaration on Human Rights (article 21).

Human rights law says that, in order to make sure that everyone can practically exercise this right to vote, the Australian government must:

... take effective measures to ensure that all persons entitled to vote are able to exercise that right. Where registration of voters is required, it should be facilitated and obstacles to such registration should not be imposed. If residence requirements apply to registration, they must be reasonable, and should not be imposed in such a way as to exclude the homeless from the right to vote. ... Voter education and registration campaigns are necessary to ensure the effective exercise of article 25 rights by an informed community.[1]

2. Can certain people be denied the right to vote?


Human rights law says that there can be restrictions on who can vote in an election, as long as those restrictions are based on objective and reasonable criteria.[2]

For example, it is reasonable to restrict the right to vote to the citizens of a country. It is also reasonable to restrict the right to vote to people who are over 18 years old.

On the other hand it would be unreasonable to restrict the right to vote ‘on the ground of physical disability, literacy standards, educational standards or property requirements.[3]

It may also be unreasonable to exclude convicted criminals from the right to vote in certain circumstances. Human rights law suggests that any exclusion of prisoners must be ‘objective’, ‘reasonable’ and ‘proportionate’ to the offence and the sentence.[4]

3. Who has the right to vote in federal elections under Australian electoral laws?


Every Australian citizen who is aged 18 years or more can vote in a federal election if validly enrolled and not disqualified from voting.

You will be validly enrolled if you are on the electoral roll at your current address (where you have lived for a month or more). You may be removed from the electoral roll if the Australian Electoral Commission becomes aware that your enrolment is at an old address.[5]

You will be disqualified from voting in an election if:

4. What has changed since the 2004 federal election?


(a) Changes to the enrolment deadlines

The deadlines to enrol to vote and update voting details have changed since the last election.

It used to be the case that voters had a 7 day ‘grace period’ after the official election announcement (when the ‘election writ’ is issued) to make sure that they were validly enrolled.

There were more than 520,000 transactions during the 7 day period before the 2004 election.[7]

For the 2007 election, a new voter must enrol by 8pm on the same day as the election writ is issued and a person must update their address within 3 working days.

These changes are contained in the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006.

(b) An aborted attempt at changing prisoner voting rights

There was to be a change to the rights of prisoners to vote, but a recent High Court decision invalidated that change.

When it was passed by federal parliament, the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 said that anyone in prison when the election writ is issued would be disqualified from voting.

However, on 30 August 2007, the High Court of Australia said that these provisions violated the Australian Constitution and were therefore invalid.[8] This means that prisoners serving a sentence which is less than three years can vote at the next federal election. This is the same situation as at the last federal election.

(c) New trials for electronic voting

During the 2007 election, electronically assisted voting will be trialled to enable electors who are blind or vision impaired to vote independently. Remote electronic voting will also be trialled for members of the Australian Defence Force who are posted overseas.[9]

5. How do the electoral laws impact on the right of people with vision impairment to vote?


The introduction of the electronic voting trials for people with vision impairment will benefit about 300,000 people, by giving them a secret ballot for the first time.[10]

Before the introduction of electronic voting trials, people with vision impairment had to ask someone else to fill out their ballot form for them. This meant that people with print disability could not enjoy the right to a secret ballot like everyone else in Australia.

6. How do the electoral laws impact on the right of young people to vote?


At the last election, 62,583 people joined the electoral roll during the 7 day grace period. This made up about 16% of the total growth of enrolments since the previous election.[11]

In the upcoming election, a new voter must enrol on or before the day the election writ is issued to be eligible to vote.

The only exception to this is for people who turn 18 after the election writ is issued, but before the election day – then you have 3 days to enrol.

These restrictions may impact on the number of young people who can exercise their right to vote in the next election.

7. How do the electoral laws impact on people who have changed address since the last election?


At the last election, 17.5% of electoral enrolment transactions, including people updating their residential address, occurred during the 7 day grace period.[12]

In this election, a change of address must occur within 3 days.

The shorter grace period may impact on the number of people who can exercise their right to vote in the next election, just because they have changed address.

8. How do the electoral laws impact on the right of homeless people to vote?

Homeless people face significant difficulties in enrolling to vote, including a difficulty in proving their identity. They are also more likely to experience frequent address changes.

The shorter enrolment deadlines will make it more difficult for homeless people to make sure they are validly enrolled.[13]

9. How do the electoral laws impact on rural and remote voters?

Rural and remote voters face extra difficulties in enrolling to vote and registering changes of address. Due to greater physical distances and potential difficulties in accessing the internet in remote areas, it may take rural and remote voters more time to obtain the necessary forms, complete the requirements and submit the forms.

The shorter deadlines will exacerbate these problems and may impact on the number of rural and remote residents who can exercise their right to vote in the next election.

10. How do the electoral laws impact on the right of prisoners to vote?

People in prison serving a sentence of 3 years or more cannot vote, even if they are on the electoral roll.

On 20 June 2004, there were 9,861 prisoners serving a sentence of 3 years or more.[14] Thus, approximately 10,000 people will be disqualified from voting at the next election.

Some argue that it may be reasonable to punish prisoners who have committed serious crimes by depriving them of the right to vote. However, HREOC believes that enfranchisement is a powerful and positive tool to assist with social reintegration and rehabilitation of prisoners.[15] Giving prisoners the right to vote would be consistent with Australia’s obligation to ensure that:

The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.[16]

HREOC believes that denying prisoners of the right to vote, just because they have been sentenced for 3 or more years does not satisfy the ‘reasonableness’ test at international law. This approach is consistent with judicial decisions in Canada and the United Kingdom.[17]

11. How do the electoral laws impact on the right of Indigenous Peoples to vote?

By restricting the right of prisoners to vote and by closing the rolls early, the electoral laws will exclude a disproportionate number of Indigenous Australians from voting.

In 2003, The Australian Bureau of Statistics estimated that Indigenous persons were 16 times more likely to be in prison than non-Indigenous persons.[18] As at 30 June 2005 there were 5,656 Indigenous people in Australian prisons or 22% of the total prison population.[19]

The early closure of the electoral roll may also have a disproportionate impact on Indigenous peoples because many live in rural and remote areas and a proportionally greater number may be homeless or change address frequently.

This disproportionate impact of the prisoner voting restrictions and early closure of the rolls on Indigenous peoples may amount to racial discrimination under international human rights law.

12. How do the electoral laws impact on the right of people with mental illness to vote?


By restricting the right of prisoners to vote and by closing the rolls early, the electoral laws may exclude a disproportionate number of Australians with mental illness from voting.

A disproportionate number of people in prison have a mental illness. For example, a 2001 study by the Schizophrenia Fellowship of NSW suggests that 60% of people admitted to prisons have an active mental illness.[20] The NSW Corrections Health Service also conducted a survey which revealed that 54% of women and 41% of men reported that they had received some form of psychiatric treatment or assessment for an emotional or mental health problem at some point in their lives. Approximately one third of these people had been previously admitted to hospital as a psychiatric inpatient.[21]

Further, people with mental illness may require assistance to enrol to vote or change address – this may take more than the three days allowed.

13. How do the electoral laws impact on the right of people with intellectual disability to vote?


By restricting the right of prisoners to vote and by closing the rolls early, the electoral laws may exclude a disproportionate number of Australians with intellectual disability from voting.

A disproportionate number of people in prison have an intellectual disability. According to the NSW Law Reform Commission people with intellectual disability are detained at a rate 4 times greater than that of the general population.[22]

Further, people with an intellectual disability may require assistance to enrol to vote or change address – this may take more than the three days allowed.

14. Want more information?


For more information about enrolling and voting in the upcoming federal election go to the Australian Electoral Commission’s website at: http://www.aec.gov.au

For a full copy of the Human Rights and Equal Opportunity Commission’s submission regarding the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 see: http://www.humanrights.gov.au/legal/submissions/electoral20060309.html

[1] General Comment 25, paragraph 11.
[2] United Nations Human Rights Committee, General Comment 25,
[3] General Comment 25, paragraphs 4, 10.
[4] General Comment 25, paragraph 14.
[5] http://www.aec.gov.au/About_AEC/Publications/
Fact_Sheets/Close_of_Rolls.htm
[6] http://www.aec.gov.au/Enrolling_to_vote/Eligibility.htm; http://www.aec.gov.au/Enrolling_to_vote/Special_Category/Prisoners.htm
[7] AEC, submission to the Joint Standing Committee on Electoral Matters (JSCEM) in 2002: (page 3 of the bills digest) AEC, Supplementary Submission, Inquiry into the 2001 federal election, p. 10 http://www.aph.gov.au/house/committee/em/elect01/subs/sub174.pdf
[8] Vicki Lee Roach v Electoral Commissioner and Commonwealth of Australia, 30 August 2007, High Court of Australia.
[9] Media Release, The Hon Gary Nairn MP, 14 August 2006, http://www.smos.gov.au/media/2006/mr_142006.html
[10] Media Release, Human Rights Commissioner, 23 August 2006, http://www.humanrights.gov.au/about/media/
media_releases/2006/67_06.htm
[11] JSCEM, The 2004 Federal Election: Report of the Inquiry into the Conduct of the 2004 Federal Election and Matters Related Thereto, para 2.93, http://www.aph.gov.au/house/committee/em/elect04/report/chapter2.pdf
[12] JSCEM, The 2004 Federal Election: Report of the Inquiry into the Conduct of the 2004 Federal Election and Matters Related Thereto, para 2.96, http://www.aph.gov.au/house/committee/em/elect04/report/chapter2.pdf
[13] AEC, submission to the Joint Standing Committee on Electoral Matters (JSCEM) in 2002: (page 3 of the bills digest) AEC, Supplementary Submission, Inquiry into the 2001 federal election, pp. 28, 45, http://www.aph.gov.au/house/committee/em/elect01/subs/sub174.pdf
[14] Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Bill 2005, Jerome Davidson, 8 February 2006, no. 95, 2005–06
[15] Dhami MK (2005) Prisoner disenfranchisement policy: A threat to democracy? Analyses of Social Issues and Public Policy, 5(1) 235-247.
[16] Article 10(3), International Covenant on Civil and Political Rights.
[17] See HREOC’s submission at: http://www.humanrights.gov.au/legal/submissions/electoral20060309.html
[18] ABS, Prisoners in Australia, Series cat. no. 4517.0, Commonwealth of Australia, Canberra, 2003 p.5.
[19] ABS, Prisoners in Australia, 2005. Series cat. no. 4517.0, Commonwealth of Australia, Canberra, 2005. http://www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/4517.
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[20] Schizophrenia Fellowship of NSW Inc. (2001) Report on the criminal justice system in Australia.
[21] Butler T, Milner L. (2003) The 2001 New South Wales Inmate health Survey. Corrections Health Service, Sydney.
[22] NSW Law Reform Commission (1996). Report 80: People with intellectual disability and the Criminal Justice System. Available at http://www.lawlink.nsw.gov.au/lrc.nsf/pages/R80TOC