Voters of ‘unsound mind’ deserve a fair go

Democracy is continually being shaped by the power of people. But do all Australians really have a democratic ‘fair go’? Brooke Murphy discusses the plight of ‘unsound mind’ and the right to vote.

Women and Aboriginal people were only given the right to vote in the last century. In both instances, this only occurred after hard-fought battles by both groups. Unbelievably, there is still another group that is denied voting rights in Australia; people of ‘unsound mind.’ According to the Australian Electoral Commission, at any time, 6,000 – 16,000 people are considered to be of ‘unsound mind’ for voting purposes.

The denial of this basic democratic right is not just a problem in terms of participation in political processes. Rejecting a citizen’s right to vote indicates that the state does not view them as a human with autonomy, and a whole citizen.

How are people of ‘unsound mind’ denied voting rights in Australia?

Subsection 93(8) of the Commonwealth Electoral Act 1918 (Cth) states that people of unsound mind are not entitled to vote or have their name on the electoral roll:

(8) A person who:

(a) by reason of being of unsound mind, is incapable of understanding the nature and significance of enrolment and voting; or

(b) has been convicted of treason or treachery and has not been pardoned;

is not entitled to have his or her name placed or retained on any Roll or to vote at any Senate election or House of Representatives election.

Subsection 118(4) allows a person’s name of the removed from the electoral roll if they are found to be of unsound mind:

(4) The Electoral Commissioner shall not remove an elector’s name from the Roll on the ground specified in paragraph 93(8)(a) unless the objection is accompanied by a certificate of a medical practitioner stating that, in the opinion of the medical practitioner, the elector, because of unsoundness of mind, is incapable of understanding the nature and significance of enrolment and voting.

Similar provisions also exist in State legislation.

Why are these provisions so problematic?

Firstly, these laws are an outright denial of basic human rights. Contrary to the United Nations Convention on the Rights of Persons with Disabilities, these provisions discriminate against disabled people with mental conditions. However, in Roach v Electoral Commission [2007], the High Court found that these provisions are consistent with Article 29 of the treaty. This decision seems to be at odds with the purpose of Article 29, which focuses on equality of participation in political and public life. This interpretation of Article 29 also contradicts the position of the United Nations Committee on the Rights of Persons with Disabilities:

[A] person’s decision-making ability cannot be a justification for any exclusion of persons with disability from exercising their political rights, including the right to vote, the right to stand for election and to serve as a member of a jury.

Secondly, these provisions use the term ‘unsound mind’ as a vague, stigmatizing descriptor. Essentially, the ‘unsound mind’ requirement slaps a label on individuals without any reference to specific criteria. This means that the term is subject to the application of stereotypes, prejudices, and wide discretion. The term ‘unsound mind’ has been applied to mentally ill and disabled people in legal discourse since the 1950s. It is just as oppressive and discriminatory as other terms that have been used to deny neurodivergent people legal autonomy, such as ‘insane’ and ‘lunatic’. The Australian Human Rights Centre has pointed out the derogatory nature of ‘unsound mind’, stating that the term “[perpetuates]prejudicial and stigmatising attitudes towards persons with disabilities”. The wording of subsection 93(8) further stigmatises these individuals by placing them on par with those who have committed the serious crimes of treason or treachery.

In contrast to a criterion based approach, stereotypes are more likely to reinforce prejudices, and are extremely difficult to control. This allows the provisions to be used to deny legal autonomy rather than efficient democracy. As the Australian Human Rights Centre has argued:

Frequently, this is due to a conflated understanding of legal capacity with mental capacity. For example, provisions which make exception for people with ‘unsound mind’, ‘disability’, ‘mental incapacity’ or ‘incompetence’ are expressing the view that the existence of a cognitive impairment permits a limitation on the exercise of legal agency and thus recognition of legal capacity as a whole.

These provisions also disregard the circumstantial nature of capacity. For example, someone could lose capacity to understand a legal document (such as a will), but still have capacity to vote for a political candidate or party. A person’s mental condition should not automatically delegitimise their political views. Deference to the ‘unsound mind’ label allows the true capacity of disabled, mentally ill or neurodivergent people to be ignored.

It seems that the denial of voting rights for people of ‘unsound mind’ may have been maintained as a matter of convenience. If the offending provisions were repealed, the government would need to develop accommodations to assist these individuals with voting.

Why do these laws exist in 21st century Australia?

As discussed in a previous article, the dominant model of mental conditions is medical. It is easy to deny a person of ‘unsound mind’ the right to vote if we view their mental condition as an incurable illness. Western liberal thinking places people on one side of the sane/insane dichotomy. This categorisation determines the privileges that a person is provided, and whether their voice will be heard in society.

Considering how the knowledge of mentally ‘ill’ people is stigmatised by society, it is unsurprising that they have been politically silenced.

In Roach v Electoral Commission, the High Court defended the ‘unsound mind’ provisions, finding that they are necessary to “protect the integrity of the electoral process”. In other words, the political views of people of ‘unsound mind’ are viewed as dangerous and illegitimate – something that Australian democracy needs to be protected from.

It is difficult to reconcile the court’s statement that these laws are “consistent and compatible with the maintenance of the system of representative government” when people of ‘unsound mind’ are not adequately represented in politics, and are being denied basic democratic rights. The provisions also ignore the fact that many people of ‘sound mind’ are allowed to vote, regardless of whether they understand the Australian political and voting system.

Have there been any calls for reform?

The Australian Law Reform Commission has called for the repeal of all legislative provisions preventing people of ‘unsound mind’ from voting in Commonwealth or State elections, or enrolling to vote. Not-for-profit groups such as the Australian Disability Centre for Disability Law, Disability Australia and the Australian Human Rights Centre have also criticised these provisions.

Unfortunately, it seems that the voting rights of neurodivergent people are not a political priority. The fight for their political rights is only just beginning. Considering the rampant stigmatisation of mental conditions in Australian society, it is likely that this will be an uphill battle for many years to come.

By Brooke Murphy.

This article was first published in New Matilda.

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