By Ethan Katz
Australian electoral practices are often thought to be an almost best-practice example of democracy in action. Voters are granted a secret ballot, so that only they know who they voted for. The nation holds its elections on Saturdays, provides an ample pre-polling window and postal voting for people who may not be able to vote in person on election day, and has all of its redistricting and election counts conducted by a genuinely independent electoral commission. It is also mandatory for Australian adults to vote. Malcolm Mackerras and Ian McAllister believe that this set of circumstances makes Australia ‘the most voter-friendly country in the world’.
This may well be the case for people who are physically able use one of Australia’s prescribed voting methods. But people who do not have the physical or motor ability to mark a piece of paper in accordance with their preferences and submit it for counting without assistance are routinely extended a different ‘quality’ of vote, or a vote on a different basis. By this, I mean that the genuinely secret ballot which many people are granted is not granted in the same way to those who cannot independently use the standard ballot marking procedure. This is a significant problem.
Attempts have been made to create alternative voting options for some electors in this category. For instance, people with impaired vision have, for over a decade, had access to a telephone voting service, where they can recite their vote to an operator who records it and deposits it in a ballot box on the voter’s behalf. Anybody who does not have impaired vision cannot use this method.
Alternately, a provision exists which allows an election staff member or carer to assist with filling in a ballot when someone cannot do so themselves, and there is always the option for someone casting a postal vote to have another person assist to mark and post their ballot on their behalf.
States and territories largely utilise similar systems. Until recently, New South Wales used a system called iVote, which allowed people to cast votes online using their own computer hardware. Fiona Given – a researcher and disability advocate – has cerebral palsy and uses an augmentative and alternative communication device to speak. She is unable to mark a ballot paper in the proscribed manner at elections, and therefore must rely on the assistance of another person. Whilst Ms Given reported that the iVote system functioned well for her needs, concerns around the software’s performance led the electoral commission to terminate its use prior to the 2023 state election.
Setting aside iVote’s performance concerns, there is a larger issue: none of these alternate forms of voting are truly secret and secure. When using telephone voting, at least one other person becomes aware a voter’s intention, therein removing the option for that voter to keep their voting intention a secret to the world. When using iVote, the susceptibility of the software to hacking meant that a voter could not be genuinely certain that their vote had been received exactly as they submitted it.
In a recently published research article, I explore these issues, and Australia’s obligations under international human rights law as they pertain to the right to vote for people with disabilities. Principally amongst these obligations is the political participation guarantee found in art 29 of the Convention on the Rights of Persons with Disabilities (‘CRPD’), which provides that Australia must ensure people with disabilities are able to participate ‘on an equal basis with others…including the right and opportunity…to vote by secret ballot in elections’ by ‘ensuring that voting procedures, facilities and materials are appropriate, accessible and easy to understand and use’.
Challenging the status quo
Following the 2013 federal election, Ms Given brought an individual communication against Australia, alleging that her right to a vote on an equal basis had been infringed. In its views, the UN committee tasked with deciding the matter determined that Australia had indeed breached its obligations under a number of articles, including article 29. Australia refuted the findings of the committee at the time, and has not actioned them since.
What about referenda?
In a matter of weeks, Australians will be asked to vote in our first referendum in a quarter of a century. Alternative forms of voting are also available at referenda as they are for federal elections, including a telephone voting service provided to people with vision impairments only. Anybody else who cannot independently mark a YES or a NO in the box on the paper will need to seek assistance from another person, compromising the secrecy of their vote.
Fixing the problem
A remedy to this fundamental human rights issue is long overdue. The Joint Standing Committee on Electoral Matters (‘JSCEM’), a bipartisan parliamentary committee, is due to report soon on the conduct of the 2022 federal election, including specifically on the ‘accessibility of…voting for persons with disabilities’. Submissions to JSCEM, such as cryptographer Vanessa Teague’s proposal advocating the use of ballot marking machines, should be given strong consideration. As proposed, these machines would allow voters to digitally input their voting preferences using a computer (ideally with their own compatible hardware) and then print out and sight their physical ballot before it is placed in a ballot box by the machine.
When JSCEM makes its final report recommendations, they ought to include an endorsement of a suite of new voting options which would grant long overdue equal basis voting to people with physical and motor disabilities.
Ethan Katz is a recent Monash University law graduate with interests in electoral law, discrimination law and international human rights.
This article is adapted from Ethan Katz, ‘Australia, “the Most Voter-Friendly Country in the World”? Examining Voting Rights for People with Physical Disabilities‘ (2023) 48(3) Alternative Law Journal 216.
This post was originally published on Castan Centre for Human Rights Law .
