Participating in Political and Public Life

Ron McCallum

A challenge for we persons with sensory disabilities

Unanimous JuryArticle 29 of the United Nations Convention on the Rights of Persons with Disabilities (‘CRPD’) provides that ratifying countries like Australia must ‘guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others’. The range of disabilities is broad, however. In this short piece, my comments will be confined to the right of we persons with sensory disabilities to vote in federal, territory and state elections, and the right to sit as members of juries. Put briefly, my focus will be on persons like myself who are blind, or who are significantly vision impaired, and persons who are deaf or who are significantly hard of hearing.

The right to vote

Article 29 paragraph A of the CRPD deals with the right to vote in the following manner. It provides that ratifying nations must:

Ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others, directly or through freely chosen representatives, including the right and opportunity for persons with disabilities to vote and be elected, inter alia, by:
i. Ensuring that voting procedures, facilities and materials are appropriate, accessible and easy to understand and use;
ii. Protecting the right of persons with disabilities to vote by secret ballot in elections and public referendums without intimidation, and to stand for elections, to effectively hold office and perform all public functions at all levels of government, facilitating the use of assistive and new technologies where appropriate;
iii. Guaranteeing the free expression of the will of persons with disabilities as electors and to this end, where necessary, at their request, allowing assistance in voting by a person of their own choice.

The Commonwealth Electoral Act 1918 has always provided that polling officers may assist blind and vision impaired persons like myself by filling in ballot papers in accordance with our instructions,1 or allowing us to nominate a person to assist us in filling in the ballot papers.2 On past occasions I have been assisted by my wife or daughter, however, while this type of voting is private voting, it is not true voting via a secret ballot.3 In order to enable persons who are blind or who have significant loss of vision to vote secretly, since 2001, commencing in the Australian Capital Territory, various forms of accessible voting have been tried. These methods have included braille ballot papers in municipal elections; as well as voting using the telephone keypad or by phoning a call centre, or by using computer machines with synthetic speech, usually at special voting centres.4

At the 26 March 2011 New South Wales State election, a new iVote system was tried.5 I used iVote which enables blind or vision impaired persons to vote using either a telephone keypad or the internet. I lodged my votes via an ordinary telephone where I used the telephone key pad to select the candidates for whom I cast my votes. This was done electronically without the need to instruct a call centre person.

iVote is a mainstream service because as well as enabling we persons with disabilities to vote, it can be used by persons who live more than twenty kilometres from a polling station, or persons who would be interstate on the day of the election. The figures available to me show that, of those who registered to use iVote, there were 781 persons with a reading disability, as well as 1452 persons with other disabilities. 1829 persons who lived more than twenty kilometres from a polling station, and 47 041 people who would be outside New South Wales on election day also registered. In relation to actual voting, 46 893 persons cast votes, with 2260 persons voting by phone and 44 633 people voting on the internet.6 While the facility to vote using the telephone is a little more expensive than using the internet, for most blind persons the telephone is much easier than is the web. It is my hope that iVote will soon be used throughout Australia for all elections. iVote is pretty much like telephone or internet banking in its simplicity.

In fact, the technology has advanced to a stage where, if our politicians wished it, all of us could vote referenda-style on important issues. For example, if everyone with access to a telephone or to the internet was given opportunities to vote referendastyle, would we have a democracy more in tune with public opinion? At the present time, a referendum on whether we should permit gay marriage would likely gain majority support. The outcome on a referendum on an emissions trading scheme is less certain, but why not use this modern technology to lessen the disconnect between the people and our politicians. In this electronic age we should no longer be inhibited by the limitations of paper voting.

unanimous-juryJury service

Article 29 of the CRPD does not mention jury service, possibly because in many countries juries are unknown. However, paragraph B of Article 29 says in part that countries must:

Promote actively an environment in which persons with disabilities can effectively and fully participate in the conduct of public affairs, without discrimination and on an equal basis with others, and encourage their participation in public affairs.

In Australia, the practice in all jurisdictions appears to be that blind and deaf persons are automatically excluded from jury service.7 In New South Wales, for example, section 14 of the Jury Act 1977 requires the Sheriff to delete from the supplementary jury roll persons who the Sheriff determines are ineligible to serve. Item 12 of schedule 2 of the Act provides that the following classes of persons are ineligible for jury service: ‘A person who is unable, because of sickness, infirmity or disability, to discharge the duties of a juror.’ Pursuant to this item, the practice is to automatically exclude blind and deaf persons from jury service.

In March 2002, the NSW Attorney-General referred to the NSW Law Reform Commission the question whether blind or deaf persons should be enabled to sit on juries. In its 2006 report, the Law Reform Commission recommended that we should be enabled to sit, provided that trial judges are given a discretion to exclude persons in appropriate situations.8 Furthermore, it was recommended that interpreters and stenographers who assist blind or deaf jurors, after swearing an appropriate oath, could go into the jury room to render further assistance. In relation to the judicial discretion to dismiss a juror, it would be confined to situations where even with reasonable accommodation the person cannot perform the functions of a juror in the circumstances of the trial. For example, in my view it would be appropriate to exclude a blind person from a jury in a murder trial where the primary evidence related specifically to eyesight identification of the accused.

So far, the NSW Parliament has not amended the Jury Act. Hopefully, the new government of Premier O’Farrell will speedily amend this statute.

Voting by secret ballot and sitting on juries are hallmarks of Australian citizenship. iVote has shown a cost-effective and mainstream way for we blind and vision impaired citizens to vote by secret ballot, and it is my hope that iVote will soon operate in all elections for state, territory and our Australian Parliament. In relation to sitting on juries, it is also my hope that all governments will speedily adopt the recommendations of the New South Wales Law Reform Commission to enable we blind and deaf citizens to sit as jurors in our courts.

RON McCALLUM AO is Professor Emeritus at the University of Sydney, Senior Australian of the Year, and Chair of the first monitoring committee of the UN Convention on the Rights of Persons with Disabilities.

© 2011 Ron McCallum

 

REFERENCES

1. Commonwealth Electoral Act 1918 (Cth) s 234(2)&(3).
2. Commonwealth Electoral Act 1918 (Cth) s 234(1).
3. See Fittler v New South Wales Electoral Commission and Anor (No 2) [2008] NSW ADT116.
4. I am grateful to Mr Michael Simpson of Vision Australia for assisting me with the history of accessible voting.
5. For further details, see Jennifer Foreshew, ‘Logica tie boosts Electoral Commission: $40m project puts organisers in poll position’, The Australian (Sydney), IT Business, 5 April 2011, 32.
6. I am grateful to Mr Tim Noonan for drawing these figures to my attention.
7. See NSW Law Reform Commission, Blind or Deaf Jurors, Report 114 (2006) [1.2]. I was a member of its reference group and also wrote a submission in favour of blind and deaf persons serving on juries.
8. Ibid [4.10].

(2011) 36(2) AltLJ 80
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