I. Introduction
The right to vote is widely regarded as a fundamental aspect of citizenship, offering every individual an equal opportunity to participate in decision-making about public affairs and governance.Footnote 1 Yet, thousands of Australians with intellectual disabilities are deprived of this fundamental right as a result of restrictive electoral disqualification practices.Footnote 2 The disenfranchisement of persons with intellectual disabilities has been widely condemned in academic literature,Footnote 3 media,Footnote 4 activism,Footnote 5 and parliamentary inquiries.Footnote 6 Yet, there has been little focus on the supports and services which would be required to assist these persons in exercising their right to vote in the event that it is granted. It is in this context that ‘supported decision-making’ has emerged as a viable avenue for reform, offering an alternative to Australia’s historically exclusionary electoral practices whilst maintaining compliance with the Australian Constitution. The article seeks to explore the different categories of voting supports tailored to persons with intellectual disabilities and assess whether they comply with the constitutional prohibition on plural voting expressed by ss 8 and 30.Footnote 7
Supported decision-making has been the subject of renewed academic and political interest following the publication of the final report by the Royal Commission into Violence, Abuse, Neglect, and Exploitation of People with Disability.Footnote 8 The Commissioners endorsed the adoption of a ‘principled approach’ to supported decision-making by the State, Territory and Australian Governments.Footnote 9 Under this principled approach, it is accepted that persons with intellectual disabilities may occasionally be assisted in a decision-making process by a ‘representative’ decision-maker, so long as the representative acts in accordance with the will and preferences of a supported person, or, in limited circumstances, the representative’s ‘best interpretation’ of the supported person’s will and preferences.Footnote 10 In its response to the Royal Commission, the Australian Government committed to identifying federal laws that may require review for the purpose of integrating supported decision-making.Footnote 11 Thus, as has been done in previous government inquiries,Footnote 12 the federal electoral framework should be examined to identify its amenability to the integration of supported decision-making principles.
There exist two different voting models through which the principles of supported decision-making may be implemented: ‘assisted voting’, where a third party assists a voter in the ballot booth at the voter’s request, and ‘proxy voting’, where a designated third party, the proxyholder, votes on behalf of a supported voter. Proxy voting is only consistent with the principles of supported decision-making if the proxyholder is limited to carrying out the directives by the principal voter. The introduction of either model at the federal level necessarily prompts consideration of the prohibition of plural voting in the Australian Constitution,Footnote 13 as each model incorporates a third party into the election process. This article concludes that this constitutional proscription prohibits any voting practice in which a supporter may exercise discretion or use their own electoral judgement. The constitutionality of arrangements in which supporters may exercise their own electoral judgement in support of electors with profound intellectual disabilities whose electoral judgement is incommunicable is considered in depth. The object of this article is to outline the methods of enfranchisement currently operational in New South Wales, and in foreign jurisdictions, as well as those considered in academic discourse, and consider their compatibility with Australia’s constitutional prohibition on plural voting. Ultimately, this article argues, based on academic discourse, that proxy voting is inconsistent with sections 8 and 30 of the Australian Constitution when the principal voter’s electoral judgement cannot be communicated. In such cases, the vote cast reflects the proxyholder’s judgement rather than that of the supported voter.
The next section introduces the various models of supported decision-making, setting the stage for discussion about providing support in the voting process. It challenges long-held beliefs that disenfranchising individuals with intellectual disabilities is necessary to maintain a functioning democracy and the integrity of the electoral process, a notion rooted in historical attitudes and reflected in electoral legislation. The section also traces Australia’s history of disenfranchisement to challenge the assumption that a functioning democracy requires the exclusion of individuals with intellectual disabilities. It concludes by outlining different enfranchisement models, focusing on proxy and assisted voting approaches from political philosophy. This political philosophy underpins the central argument that when a proxy vote is cast on behalf of a voter whose electoral judgement cannot be communicated, it represents the will of the proxyholder, not the principal voter.
This article then introduces the prohibition on plural voting outlined in ss 8 and 30 of the Australian Constitution and examines its impact on the introduction of assisted and proxy voting models. It is argued that, while proxy voting may first appear incompatible with the constitutional prohibition, there exists an important distinction between proxyholders with wide discretion and those bound by specific directives. However, even if directive-based proxy voting is constitutionally valid, it cannot be used when a person is unable to communicate their electoral judgement. Consequently, this article argues that assisted voting is favoured as the preferrable model of voting support, while proxy voting is seen as complex, impractical, and likely to continue the disenfranchisement of individuals with intellectual disabilities.
II. Supported decision-making and the right to vote
The understanding of individuals with intellectual disabilities as autonomous decision-makers has evolved significantly. Historically, these individuals were often excluded from making decisions about their own lives due to assumptions about their competency.Footnote 14 This paternalistic approach led to their exclusion from the electoral process. However, the international movement towards equality, particularly through the UN Convention on the Rights of Persons with Disabilities (‘the Convention’),Footnote 15 has catalysed a growing legal trend toward universal enfranchisement for persons with intellectual disabilities. Both the scholarly discourse and the comparative legal frameworks are divided over the level of supports required to promote the legal capacity of persons with disabilities whilst maintaining the integrity of the electoral process. This section explores the principles of supported decision-making, the implications for legal capacity and voting rights, and the evolving legal frameworks that aim to include individuals with intellectual disabilities as equal participants in society.
A. Supported decision-making in Australia
The conceptualisation of ‘capacity’ has undergone an epistemological transformation over the last century. Historically, capacity was considered a status that a person with an intellectual disability inherently lacked due to their impairment. This style of thinking has been retrospectively defined as the medical model of disability which presents disability as an internalised issue, focusing on the individual’s limitations.Footnote 16 In contrast, contemporary understandings of capacity are increasingly shaped by the social model of disability which reframes disability as a challenge arising from external factors rather than intrinsic deficits.Footnote 17 Within this framework, capacity is no longer viewed as something an individual inherently lacks but rather as a potential that can be realised through the provision of appropriate supports and accommodations.Footnote 18
In the context of decision-making capabilities legally bestowed to persons with intellectual disabilities, this epistemic shift has catalysed a policy pivot away from paternalistic practices which subvert and delegate decision-making rights, toward assistive approaches that focus on the appropriate supports and accommodations to provide to persons with intellectual disabilities. For centuries, the decision-making capabilities of persons deemed incapable of managing their own affairs has been subordinated in favour of substitute decision-makers.Footnote 19 In decisions concerning broader societal affairs, as is the case with voting and jury service,Footnote 20 the person deemed incapable, or incompetent, is often disqualified and excluded entirely.Footnote 21 This paternalistic practice of ‘substituted decision-making’ lacks a standardised definition. The United Nations Committee on the Rights of Persons with Disabilities (‘UNCRPD’) asserts that this practice exists in systems that remove a person of their legal capacity, allows another person to be appointed as a substitute decision-maker against the principal’s will and for the substitute to make decisions according to the ‘best interests’, distinct from the ‘will and preferences’, of the person concerned.Footnote 22 The practice of subordinating the decisions of the person deemed incapable through substitutive or disqualification processes is contrasted with the practice of assisting and supporting such persons in the realisation of their legal capacity, often referred to as ‘supported decision-making’.
The global push to promote equality for persons with disabilities has endorsed and popularised the practice of supported decision-making.Footnote 23 Unlike substituted decision-making, supported decision-making involves providing persons with disabilities with the necessary supports to enable them to exercise their legal capacity in a way that respects their rights, will and preferences.Footnote 24 This recognition of autonomy is why supported decision-making is preferred over substituted decision-making. The formation of the Convention, the first international, legally binding instrument setting standards for persons with disabilities, marked a significant shift in the approach of law, policy, and society toward the legal capacity of persons with disabilities. Article 12(2) of the Convention enshrines the principle that individuals with intellectual disabilities shall enjoy legal capacity on an equal basis with others in all aspects of life.Footnote 25 The UNCRPD asserts that this provision clarifies that ‘unsoundness of mind’ and other discriminatory labels are not legitimate reasons for the denial of legal capacity.Footnote 26 Articles 12(3) and 12(4) complement this right by requiring States Parties to take appropriate steps to provide the necessary supports to exercise this legal capacity and to enact safeguards ensuring that decisions are free from undue influence.Footnote 27 While there is no uniform approach to supported decision-making practices in Australia,Footnote 28 the prevailing approach is a binary one, recognising substituted decision-making and supported decision-making as mutually exclusive alternatives.Footnote 29
A clear limitation and critique of the binary conceptualisation of supported and substituted decision-making is its failure to accommodate persons with severe and profound intellectual disabilities.Footnote 30 To address this limitation, the UNCRPD clarified that if all reasonable efforts to determine an individual’s will and preferences have been unsuccessful, the supporter should then provide their ‘best interpretation’ of that individual’s will and preferences.Footnote 31 This framing of decision-making by the UNCRPD rejects the binary conception of substituted decision-making and supported decision-making. Instead, it acknowledges that in certain situations, a supported decision-maker may need to be appointed to make decisions when the person receiving support is unable to actively participate.Footnote 32 Whilst this approach may possess substitutive elements, it remains a supported decision-making practice because it practically respects the rights, will and preferences of persons with severe and profound intellectual disabilities.Footnote 33 The key distinction between substituted decision-making and this approach to supported decision-making is the shift from making decisions based on a person’s ‘best interests’ to focusing on their ‘will and preferences.’Footnote 34
The recent Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability thoroughly considered the integration of supported decision-making in State, Territory and Commonwealth laws. The Commissioners made the recommendation that States and Territories should review and reform their guardianship and administration legislation to include a ‘principled approach’ to supported decision-making.Footnote 35 This approach recognises a presumption of decision-making ability but allows for the appointment of a ‘representative’ decision-maker as a last resort.Footnote 36 However, in line with the approach endorsed by the UNCRPD,Footnote 37 a person’s will and preferences, or the best interpretation of a person’s will and preferences,Footnote 38 must remain central and be reflected in the representative’s decision.Footnote 39
The Commissioners made a further recommendation that the Australian Government should take steps to review and reform other laws concerning individual decision-making for the purpose of giving legislative effect to the supported decision-making principles.Footnote 40 In response, the Australian Government committed to taking steps to identify other relevant laws concerning decision-making that may require review regarding approaches to supported decision-making.Footnote 41 As both submissions to the Royal Commission and an earlier analogous Australian Law Reform Commission report demonstrate,Footnote 42 such a review is likely to include consideration of the federal electoral framework. This article consequently considers the supported voting methods available in the voting process and contemplates whether these methods conflict with the constitutional prohibition on plural voting.
B. Capacity and the federal franchise
To understand supported decision-making in elections, it is essential to first examine the justifications for disenfranchisement, the history of the disenfranchisement of individuals with intellectual disabilities in Australia, and the various scholarly perspectives on supported decision-making in electoral contexts. This exploration helps clarify why the exclusion of such individuals has been seen as an inherent aspect of democracy and whether contemporary principles of autonomy and representation challenge this view.
1. Reasons for disenfranchisement
Disenfranchising individuals with intellectual disabilities has long been an assumed feature of a functioning democracy. This exclusion is often embedded in electoral laws, both explicitly and implicitly. When the Australian Constitutions Act 1850 (UK) (‘Imperial Statute’) declared that ‘every man’ be ‘entitled to vote’, it was assumed that this did not include persons deemed non compos mentis (‘of unsound mind’).Footnote 43 When forming the federal franchise in 1901, Parliament’s failure to include an express ‘unsound mind’ disqualification was determined to be ‘undoubtedly’ an ‘omission’.Footnote 44 When interpreting the constitutional and democratic imperative that Senators and Members of the House be ‘chosen by the people’, Murphy J stated that the literal common sense meaning of this included all persons of the Commonwealth except children and those of unsound mind.Footnote 45 This consistent treatment of disability raises the question: why is the disenfranchisement of individuals with intellectual disabilities considered so integral to democracy that it is viewed as an inherent feature?
An examination of the rationales for extending the franchise demonstrates how persons with intellectual disabilities have historically been systematically disenfranchised. Linda Barclay identifies two main approaches: that the right to vote is justified by the value of personal autonomy, and that those whose interests are affected by the political system should have a say in its decision-making.Footnote 46 Barclay suggests that these principles are crucial in questioning the long-held belief that individuals with intellectual disabilities can be rightfully excluded from voting.Footnote 47
First, the argument that the right to vote is justified by personal autonomy dictates that autonomous individuals should ‘be authors of laws they are subject to’.Footnote 48 This notion of democratic participation has been used to justify extending the franchise to all persons residing within particular jurisdictions, as opposed to limiting the vote to citizens.Footnote 49 However, persons with intellectual disabilities are presumed to lack the requisite personal autonomy that underpins this justification.Footnote 50 Therefore, it has been argued that there is ‘no point’ in extending the franchise due to the want for personal autonomy.Footnote 51
Second, the affected interests principle ‘holds that individuals whose interests are affected by the polity’s decisions should have the right to be included in the decision-making of that polity’.Footnote 52 Robert Goodin believes that any attempt to delimit the demos beyond this would be ‘fatally underinclusive’.Footnote 53 Despite this, many scholars of this principle couple it with an ‘unspecified competency’ requirement.Footnote 54 According to Barclay,Footnote 55 this competency element is often ‘offered as a basis for denying the franchise to young children and people with intellectual disabilities’ — an argument that echoes Murphy J’s interpretation of ‘chosen by the people’ in Attorney-General (Cth) (Ex rel McKinlay) v Commonwealth (‘McKinlay’).Footnote 56 As a result, individuals with intellectual disabilities are frequently excluded from the philosophical foundations that inform the expansion of voting rights and suffrage movements. This exclusion leaves these individuals in a state of continued disenfranchisement.
The continued disenfranchisement of persons with intellectual disabilities is often justified by concerns around preserving the integrity of the electoral process. It is clear that this preservation does not require that individuals vote only for candidates with the best policies, as this is not achieved with the existing franchise.Footnote 57 Rather, the principal concern is that enfranchising such persons will invite undue influence and fraud into elections.Footnote 58 This concern was reflected in Roach v Electoral Commissioner (‘Roach’).Footnote 59 In that case, the dictum of the High Court asserted that s 93(8)(a) of the Commonwealth Electoral Act 1918 (Cth) (‘Commonwealth Electoral Act’) ‘plainly is valid’ because it limits the exercise of the franchise for a purpose that is ‘apt to protect the integrity of the electoral process’.Footnote 60 The ‘integrity’ being protected is the exclusion of ‘groups of voters sharing some characteristic considered to affect capacity to vote responsibly and independently’.Footnote 61 It follows that disenfranchisement continues to be justified in Australia by anxieties regarding the independence of the votes cast by persons with intellectual disabilities.
Therefore, the key reasons for disenfranchising persons with intellectual disabilities are the lack of personal autonomy, insufficient competency and potential burdens on the integrity of the electoral system. These concerns have informed historic narratives about the voting rights of persons with intellectual disabilities that continue to this day. This article will now provide an overview of the history of such voting rights in Australia.
2. History of disenfranchisement in Australia
The assumption of competency as a prerequisite for democratic participation is evidenced in Australia’s earliest electoral legislation. The doctrine of non compos mentis, Latin for ‘unsound mind’, prevailed as the core conceptualisation of legal incapacity during the formation of Australian democracy.Footnote 62 The contemporaneous language distinctly classified individuals considered non compos mentis into two specific categories: ‘idiots’ and ‘lunatics.’Footnote 63 This delineation dates back to the work of William Blackstone in 1765, who provided a clear distinction between the two. According to Blackstone, ‘an idiot, or natural fool, is one that hath had no understanding from his nativity,’ indicating a congenital lack of cognitive ability.Footnote 64 In contrast, ‘a lunatic, or non compos mentis, is one who hath had understanding, but by disease, grief, or other accident hath lost the use of his reason,’ suggesting a loss of cognitive function due to external factors.Footnote 65
In 1850, the Imperial Statute came into force to liberalise the franchise in New South Wales and Victoria by reducing restrictive pre-existing voting qualifications, though it preserved a property qualification.Footnote 66 It stipulated that ‘every man of the age of twenty-one years, being a natural-born or naturalised Subject of Her Majesty … shall be entitled to vote at the election of a member of the Legislative Council’.Footnote 67 The statute explicitly disenfranchised those who ‘attainted or convicted of Treason, Felony, or other infamous Offence’ and those who had failed to pay rates or taxes.Footnote 68 However, Arthur Wrixon opined that the Imperial Statute’s reference to ‘every man’ impliedly excludes those deemed to be non compos mentis.Footnote 69 Interestingly, Wrixon asserts that this implied disqualification does not extend to individuals classified as ‘lunatics’ experiencing ‘lucid intervals’ or those described as ‘childish’, the contemporaneous term for degenerative disabilities, when they are capable of exercising electoral judgement.Footnote 70
Following federation, the introduction of the Commonwealth Franchise Bill in April 1902 signified a foundational moment in the legislative history of Australia. Under the stewardship of Senator Richard O’Connor, who oversaw the Bill’s passage through the Senate, the legislation aimed to establish a democratic franchise based solely on the criterion of residency within the Commonwealth for six months or more by any adult individual. Senator O’Connor articulated the essence of the Bill with eloquence, asserting that it championed an inclusive franchise unparalleled in its breadth, thereby excluding no segment of society.Footnote 71 He expressed confidence that the enactment of this Bill would position the Commonwealth as a beacon of representative democracy, unparalleled globally.Footnote 72
However, the initial idealism encapsulated by O’Connor was tempered by subsequent amendments that introduced exclusions in this broad franchise. Notably, by the time the Bill received Royal Assent on 12 June 1902, it had been modified to exclude certain groups. A contentious amendment explicitly disqualified ‘aboriginal natives of Australia, Asia, Africa, or the Islands of the Pacific, except New Zealand,’ from enrolling to vote unless they met specific conditions outlined in s 41 of the Constitution.Footnote 73 This inclusion followed extensive debates and marked a significant departure from the Bill’s initially inclusive vision.
Furthermore, the Bill was amended to incorporate a provision regarding individuals of unsound mind, addressing what was considered ‘undoubtedly’ a significant ‘omission’ in the original draft.Footnote 74 Senator O’Connor justified the disqualification by emphasising:
I do not think there can be any doubt as to the necessity of the [‘unsound mind’ disqualification], if we do not provide that persons of unsound mind shall not have a vote, there is no reason why lunatics should not be put upon the electoral roll and they might claim the right.Footnote 75
Despite the gravity of this amendment, it sparked minimal debate within the Senate, with discussions primarily focused on the separate aspect of ‘charitable relief.’Footnote 76 The sole substantive critique emerged from Senator Ewing of Western Australia, who questioned the criteria for determining unsoundness of mind and advocated for a judicial determination rather than leaving such decisions to electoral officers.Footnote 77 He asserted that ‘any number of persons of unsound mind go to the ballot-box’.Footnote 78 This critique highlighted concerns over the provision’s practical effect and want for due process. Nevertheless, the provision was codified under what is now s 93(8)(a) of the Commonwealth Electoral Act.
Section 93(8)(a) has experienced only two meaningful alterations since 1902. The first alteration occurred through the Commonwealth Electoral Legislation Amendment Act 1983 (Cth).Footnote 79 This amendment was prompted by the findings of the Joint Select Committee on Electoral Reform (‘JSCER’), which released a report critiquing the term ‘unsound mind’ as ‘legally most imprecise’.Footnote 80 The JSCER recommended a nuanced re-evaluation of the language used, advocating for a criterion that would only exclude ‘those persons who are incapable of making any meaningful vote’.Footnote 81 In response to these recommendations, the provision was refined to exclude individuals specifically on the basis that, due to their being of unsound mind, they are ‘incapable of understanding the nature and significance of enrolment and voting’.Footnote 82 Second, the Electoral and Referendum Amendment Act 1989 (Cth) amended the Commonwealth Electoral Act to mandate that Divisional Returning Officers could only disqualify an individual following an objection if it was supported by a medical certificate.Footnote 83 This amendment was the consequence of debate concerning the fundamental difference between the unsound mind disqualification which requires a judgement call and those concerning age, citizenship, or criminal convictions.Footnote 84
Additionally, the Electoral and Referendum Amendment (Improving Electoral Procedure) Bill 2012 was introduced in 2012 with the aim of modernising the language used to determine electoral eligibility by substituting the antiquated and stigmatising phrase ‘by reason of being of unsound mind’ with ‘in the opinion of a qualified person’.Footnote 85 The term ‘qualified person’ is defined broadly to include professionals whose occupation involves providing care for individuals’ physical or mental health or overall well-being. This encompasses a broader spectrum of practitioners including, medical practitioners, psychiatrists, psychologists, and social workers.Footnote 86 This amendment aimed to mitigate the considerable unease within the community regarding the potentially discriminatory and outdated language of the current criterion.Footnote 87 It also sought to respond to the apprehensions of general practitioners who have expressed their unease with being tasked to determine someone’s mental capacity under the label of ‘unsound mind’, a concept they expressed feeling unqualified to assess.Footnote 88 In agreement with the Democratic Audit of Australia, the JSCEM articulated concerns that excising the term ‘unsound mind’ could inadvertently widen the criteria for disqualification, thus risking the disenfranchisement of certain voters.Footnote 89 The committee, upon reviewing the submitted evidence, found no compelling justification for the elimination or replacement of the ‘unsound mind’ terminology.Footnote 90 This amendment was not adopted as a result.
On 24 November 2014, the final report of the Australian Law Reform Commission (‘ALRC’) entitled ‘Equality, Capacity and Disability in Commonwealth Laws’ (‘ALRC Report’) was tabled. This inquiry examined laws and legal frameworks within the Commonwealth jurisdiction that deny or diminish the equal recognition of people with disability as persons before the law and their ability to exercise legal capacity.Footnote 91 In this report, the ALRC examined supported decision-making in Commonwealth laws and proposed a set of National Decision-Making Principles.Footnote 92 These principles comprised of the: equal right to make decisions; availability and provision of necessary supports in making those decisions; centralisation of a person’s will, preferences and rights in the decision-making process; and the enactment of appropriate and effective safeguards in relation to persons who may require decision-making support.Footnote 93 This framework, which initially inspired the principled decision-making model recently endorsed by the Commissioners,Footnote 94 was to be reflected throughout all objects or provisions in relevant Commonwealth legislation.Footnote 95
The ALRC Report inquired into the treatment of disability within Commonwealth electoral law and made three critical recommendations. First, s 93(8)(a) must be repealed and there should be no disqualification of persons deemed to be incapable of understanding the nature and significance of voting simply by virtue of being of unsound mind.Footnote 96 Second, an ‘excuse not exclude’ approach should instead be codified to exempt persons who otherwise cannot vote by virtue of their disability from receiving a financial penalty for failing to vote.Footnote 97 This is critical given the threat of financial penalties is often cited as a justification for the continued disenfranchisement of persons of ‘unsound mind’.Footnote 98 The ALRC’s proposed amendment would exempt a person from financial penalties for failing to vote if they cannot understand information relevant to voting at the particular election; retain that information for a sufficient period to make a voting decision; use or weigh that information as part of the process of voting; or communicate their vote in some way.Footnote 99 Third, the ALRC recommended that the Commonwealth Electoral Act should include supported-decision making practices.Footnote 100 Section 234(1) currently allows a voter who satisfies a presiding officer that his or her sight is so impaired or that the voter is so physically incapacitated or illiterate that he or she is unable to vote without assistance to appoint a person to enter the voting booth with the voter and mark, fold, and deposit the voter’s ballot paper.Footnote 101 The ALRC recommended that this should be broadened to any person who is ‘unable to vote without assistance’ and allow the supporter to ‘assist them with voting’, thereby extending this support to persons with intellectual disabilities.Footnote 102 Further, it was recommended that the Australian Electoral Commission (‘AEC’) provide training to its officers that is consistent with the National Decision-Making Principles to improve support in enrolment and voting for persons who require support to vote.Footnote 103 These recommendations were qualified by the recommendation to the AEC to further investigate methods of maintaining the secrecy of votes for persons who require support.Footnote 104 Therefore, the ALRC Report envisaged a Commonwealth Electoral Act that enfranchises persons with disabilities whilst supporting them in their decision-making.
Despite these recommendations not being implemented at the federal level, the New South Wales Government implemented a new voting regime that largely reflected the ALRC’s model. The Parliamentary Electorates and Elections Act 1912 (NSW) disqualified individuals deemed ‘of unsound mind’ and thereby ‘incapable of understanding the nature and significance of enrolment and voting’ from being added to the electoral roll.Footnote 105 The NSW Electoral Commission clarified that, in practice, no explicit assessment of mental soundness was conducted upon enrolment or voting.Footnote 106 Removal from the electoral roll on these grounds necessitated a medical certificate by a professional, confirming the individual’s inability to comprehend the enrolment and voting process, as per s 25(a).Footnote 107
Following a thorough re-evaluation of existing NSW electoral law, the Electoral Act 2017 (NSW) was enacted and abolished the ‘unsound mind’ criterion entirely,Footnote 108 implemented supported voting, and exempted persons with legal incapacities from financial penalties for failure to vote.Footnote 109 Much like the recommendations of the ALRC Report, s 134 of the Electoral Act 2017 (NSW) allows an elector to appoint another person to assist them with their vote if an election official is satisfied that the elector is unable to vote without assistance.Footnote 110 Election officials may also assist in marking ballot papers according to a voter’s instructions and placing the ballot paper in the ballot box. Further, s 259(9)(d) of the Electoral Act 2017 (NSW) exempts an elector from receiving a financial penalty if they had a lack of mental capacity as certified by a registered medical practitioner during a state election.Footnote 111 The NSW Government also partners with the Council for Intellectual Disability to produce an Easy Read guide for state and local elections to assist with voting.Footnote 112 Since the electoral reform, the federal government has not codified assisted voting in the Commonwealth Electoral Act but has trained AEC staff to recognise appointments of supporters.Footnote 113
3. Models of enfranchisement: Proxy voting and assisted voting
Repealing s 93(8)(a) of the Commonwealth Electoral Act to facilitate the enfranchisement of persons with intellectual disabilities in Australian federal elections would be consistent with a growing global consensus. The amendments to NSW electoral law are reflective of an international legal trend of removing competency and capacity disqualifications.Footnote 114 The rise of litigation and pressure from international bodies concerning the right to vote for persons with intellectual disabilities has resulted in universal enfranchisement of persons with intellectual disabilities across various jurisdictions including, but not limited to, Japan,Footnote 115 Spain,Footnote 116 the United Kingdom,Footnote 117 and Canada.Footnote 118 For European Parliament elections, there are now 13 member states that legally uphold the right to vote without restrictions and several more that are initiating reviews to identify such restrictions with the aim of eliminating or reducing them.Footnote 119 In the United States, Idaho, Illinois, Indiana, Kansas, Michigan, New Hampshire, Oregon, Pennsylvania, Tennessee and Vermont impose no constitutional or statutory disqualification on voting.Footnote 120 The universal enfranchisement of persons with intellectual disabilities is therefore not unique or novel.
Enfranchisement is often coupled with the adoption of assisted voting or proxy voting models. It is common that electoral laws or regulations contain provisions on assisted voting for persons with physical, visual or intellectual disabilities.Footnote 121 Assisted voting is a form of supported voting that developed with the introduction of the secret ballot, allowing illiterate or voters with disabilities to receive help in marking their ballots.Footnote 122 The assistance is typically provided by a trusted individual or a polling official, and the voter remains present, communicating their choice directly to the person assisting them.Footnote 123 Unlike proxy voting, where the voter is absent and the proxy fully assumes their role, assisted voting only involves intervention when necessary, ensuring the voter’s autonomy is respected as much as possible.Footnote 124 New South Wales provides assisted voting to persons with intellectual disabilities through s 134 of the Electoral Act 2017 (NSW). As discussed, the ALRC has recommended such voting methods be adopted at the Commonwealth level.
Proxy voting allows an eligible voter to appoint a third party, known as the proxy, to cast a vote on their behalf.Footnote 125 There are two types of proxy voting found in both electoral and corporate law: limited proxy voting,Footnote 126 where the principal directs the proxy on how to vote, and unrestrained proxy voting, where the proxy has broad discretion to vote on the person’s behalf.Footnote 127 Thirty-two countries allow proxy voting in their elections, including the United Kingdom,Footnote 128 China,Footnote 129 Belgium,Footnote 130 Algeria,Footnote 131 France,Footnote 132 Japan,Footnote 133 Netherlands,Footnote 134 and Vanuatu.Footnote 135 The reasons for allowing proxy voting vary significantly among these countries. Some laws provide an exhaustive list of reasons, others publish the permissible reasons as the election approaches, and some take a broad approach by allowing eligible voters who cannot vote in person for any reason to appoint a proxy.Footnote 136 Of the laws that provide an exhaustive list of reasons, eleven specifically mention intellectual disability as a valid reason.Footnote 137 It is important to note that proxy voting is not necessarily a form of substituted decision-making, though it may be the method through which substituted decision-making is facilitated. A proxy engaging in limited proxy voting merely serves as a vessel through which a directed vote is cast. The process therefore involves no element of substitution and better reflects the ‘principled approach’ to supported decision-making. However, substituted decision-making may occur where an unrestrained proxy votes according to what they believe is in the principal elector’s best interests. This practice is also referred to as ‘surrogate voting’.Footnote 138 The justifiability of these differing approaches has been thoroughly debated at an academic level, largely in response to a model of enfranchisement offered by Martha Nussbaum which incorporates assisted voting, instructed proxy voting and surrogate voting.
Nussbaum introduced a model of enfranchisement that establishes three subcategories: Case A, Case B and Case C. Case A includes persons who are both cognitively and physically capable of voting but require special efforts and expenses to execute that function.Footnote 139 For example, a person may find large volumes of text difficult to process quickly and therefore requires an Easy English guide to voting. Case B includes a person who cannot exercise the functions required to vote without direct assistance but is capable of communicating his or her preferences to a person who can then exercise these functions on his or her behalf.Footnote 140 Such persons are recognised as having views, but communication of these views requires support, concessions or specialised knowledge of the person to facilitate the vote.Footnote 141 For example, an individual with a moderate intellectual disability who finds it difficult to navigate the voting process independently but can still communicate their electoral judgement to a trusted family member or carer would fall into Case B. In both Case A and Case B, Nussbaum advocates for assisted voting to ensure that individuals can effectively communicate their electoral decisions through the voting process.Footnote 142 The third and final subcategory, Case C, concerns individuals with a disability that is ‘so profound that he or she is unable to perform the function’ of voting.Footnote 143 Nussbaum argues that guardians should be empowered to exercise a vote on behalf of such voters in his or her interests.Footnote 144 In essence, the approach to individuals in Case C acknowledges the limitations of persons with incommunicable political will and opts for a substituted decision-making approach to be executed through proxy voting. Although she concedes that such an approach may be open to corruption, it is argued that this approach is preferable to the alternative of not weighing this group’s interests in the political balance and denying them the status of fully equal citizens.Footnote 145 Nussbaum’s approach, therefore, maximises political representation by employing a hybrid model of assisted and proxy voting based on the severity of an individual’s disability in the electoral context.
Attila Mráz analyses the UNCRPD’s endorsement of supporting individuals with severe and profound intellectual disabilities in the electoral process by offering their ‘best interpretation’ of the individual’s will and preferences.Footnote 146 He concludes that when a person’s electoral judgement is incommunicable, it becomes impossible for a supporter to determine their true electoral judgementFootnote 147. Unlike a person’s will, preferences are capable of being ascertained through non-volitional and non-cognitivist factors, such as care and attention.Footnote 148 For example, a supporter might infer that an elector prefers the outdoors after several years of observing their behaviour.Footnote 149 Mráz contends that this does not automatically mean that the elector would vote for a policy position or candidate supporting well-kept parks, over one of community centres, due to other determinative preferences, such as the benefits disadvantaged groups would derive from community centres.Footnote 150 Will and ‘judgements are outputs of one’s practical agency whilst preferences are mere inputs into that process’.Footnote 151 We cannot enact a person’s agency through a surrogate when the principal elector is unable to communicate their will or judgement.Footnote 152
Applying Mráz’s argument to both Nussbaum’s model and the UNCRPD’s ‘will and preferences’ approach to supported decision-making, it is not possible for a supporter to effect the electoral judgement of persons in Case C as this would be an exercise of the will of the supporter, not the principal elector. As a result, Mráz contends that the will and preferences framework may not be equipped to accommodate individuals whose electoral judgement is incommunicable, such as those described in Nussbaum’s Case C. The argument advanced in this article, that the prohibition of plural voting under ss 8 and 30 of the Australian Constitution precludes proxy voting for principal voters whose electoral judgement is incommunicable, aligns with Mráz’s conclusion.
Nussbaum’s approach has been significantly criticised on both a theoretical and practical level. János Fiala-Butora, Michael Ashley Stein and Janet E Lord argue that the use of substituted decision-making through proxy voting arrangements in Case C falls short of the mandate to empower persons with disabilities to exercise their agency across a wide array of legal transactions and social encounters under Article 12 of the CRPD.Footnote 153 Whilst they acknowledge that there may be room for substituted decision-making in extreme circumstances, voting does not invoke the requisite extremeness.Footnote 154 Rather, the authors argue that we are not equally empowered because we vote, we are equally empowered because we can vote.Footnote 155 Voting by proxy is not the same as voting alone or voting with assistance when it comes to expressing equal respect for voting by persons in Case C, neither does it promote their dignity.Footnote 156 While substitute decision-makers may take into account the preferences of the person they are voting on behalf of, the decision ultimately remains that of the guardian.Footnote 157 Proxy voting consequently subordinates the voting-incapable.Footnote 158 Notably, Fiala-Butora et al did not consider the UNCRPD’s acknowledgement that supporters may employ the best interpretation of a person’s will and preferences. Nevertheless, they argued that the optimal position of electoral policy concerning persons in Case C is universal enfranchisement with access to assisted voting, but in no scenario is proxy voting justified on a theoretical level.Footnote 159
Likewise, Fiala-Butora et al also reject proxy voting due to practical issues and constraints, such as the reality that the State is unable to precisely determine who is incapable of voting.Footnote 160 This is evidenced in Australia’s disenfranchisement of persons who are deemed ‘incapable of understanding the nature and significance of voting’ because they are of ‘unsound mind’.Footnote 161 Whilst the legislative objective and terms of the disqualification are obvious,Footnote 162 its application may be imprecise, as Gleeson CJ conceded in Roach.Footnote 163 This concern has been confirmed by general practitioners, those applying the disqualification.Footnote 164 Consequently, applying a law that codifies the models proposed by Nussbaum for Cases A, B and C is likely to result in an encroachment of proxy voting on persons in Cases A and B,Footnote 165 which would be reserved for persons in Case C. This is because states are incentivised to subject more persons to proxy voting because they consider guardians more qualified than voters with disabilities.Footnote 166 Therefore, whilst Fiala-Butora et al acknowledge assisted voting as a legitimate exercise of Article 12 of the CRPD, they contend that proxy voting is not justified in any circumstance due to both theoretical and practical factors.Footnote 167
Linda Barclay argues that it is implausible to suggest that voting on an individual’s behalf without explicit direction constitutes an exercise of that person’s own political participation, as this denies the significance of individual agency and practical reason in defining and securing the capability for political engagement.Footnote 168 Barclay emphasises the unjustifiability of proxy voting under Nussbaum’s proposed framework by explaining that a law which gives a husband the right to vote on a wife’s behalf is not the same as the wife being able to vote for herself.Footnote 169 This analogy has actualised into a political reality for voters around the world.Footnote 170 Therefore, there is a legitimate concern that proxy voting without specific directions allows the rights-holder to cast a vote according to their own will rather than the will of the individual they represent, thereby subordinating the intention of the person on whose behalf the vote is cast.
Barclay further argues that removing competency requirements and granting voting rights to persons with disabilities is justifiable only if proxy voting and assisted voting are prohibited. According to Jeremy Waldron, voting is not insignificant and can be understood as the entitlement of each person, as part of their dignity as an equal peer of the realm, to be consulted in public affairs.Footnote 171 Agreeing with Waldron’s proposition, Barclay asserts that we should universally enfranchise persons with disabilities but simultaneously reject practices that assist people in casting their votes, including assisted voting and proxy voting.Footnote 172 This approach acknowledges concerns about the integrity of the vote, particularly focusing on the independence of voting by individuals with intellectual disabilities.Footnote 173 These exact concerns have been used to justify disenfranchisement of persons of ‘unsound mind’ according to the High Court.Footnote 174 Given this, Barclay asserts:
We should deny people assistance when casting their vote. A person with cognitive impairments, like everyone else, will be legally entitled to vote. They should enjoy proper opportunities to discuss the election with others, to ask questions, and to receive accessible information about the election and how to vote. They should be able to see a copy of the ballot paper or voting device beforehand, and to ask any questions they may have about how to cast the vote. But when it comes to actually casting a vote, all people should be required to do so on their own. This would mean that those individuals who are unable to cast a valid vote (by marking the paper correctly for example) will in effect not end up voting.Footnote 175
Barclay argues that criticisms which claim that her approach would still prevent individuals who need assistance in the polling booth are misdirected.Footnote 176 She states that a person does not possess the capacity to vote if they have received ample assistance before casting their vote, including being shown how to mark their choice on the ballot paper, and are still unable to cast a valid vote.Footnote 177 She further asserts that those who object to the lack of assistance must argue that the value of the secret vote is overrated, a position she strongly rejects.Footnote 178 This position may be contrasted with those of disability rights activists, such as a representative of Inclusion Australia in Parliament who advocates for Easy Read information, more time provided to persons with intellectual disabilities to stand to vote, and to have someone support you when you’re voting by explaining the process in a better format.Footnote 179 While Barclay’s approach to voting would not reject an Easy Read provided before people enter the voting centre, nor would it necessarily reject providing people with intellectual disabilities more time to stand, it would not accept the provision of assistance by a supporter during voting. Existing laws in states that permit supporters, such as those provided by s 134 of the Electoral Act 2017 (NSW), thus conflict with Barclay’s model. Therefore, to ensure the integrity of the electoral process is not compromised when persons with disabilities are universally enfranchised, Barclay argues that both proxy voting and assisted voting at the polling booth should be prohibited.
Thus, the repeal of s 93(8)(a) of the Constitution would align Australia with the international trend toward universal enfranchisement, affirming the voting rights of persons with intellectual disabilities. The discourse primarily points to two voting methods that may be used to support these individuals in participating in elections: assisted voting and proxy voting. While assisted voting is generally supported as an effective means to enabling voters with intellectual disabilities cast their vote, proxy voting remains controversial due to concerns about undermining individual agency. The debates surrounding these models of enfranchisement highlight the need for careful consideration of how best to balance inclusivity with the integrity of the electoral process. This article will now outline the constitutional prohibition on plural voting and assess how it interacts with these two voting methods.
III. Supported decision-making and the prohibition on plural voting
This section will explore and outline the prohibition on plural voting in the Australian Constitution. It will then inquire into whether the incorporation of supported decision-making through assisted voting and proxy voting breaches this provision, placing particular emphasis on the historic misunderstanding that proxy voting is automatically unconstitutional. Furthermore, it will examine whether supported decision-making in federal elections is unconstitutional, exploring circumstances where a person’s electoral judgement is communicable or incommunicable.
A. Constitutional prohibition on plural voting
The delineation of electoral rights emerged as a central concern during the framing of the Constitution, reflecting deep divisions among the colonies over the extension of civic privileges. The progressive introduction of universal male suffrage, commencing with South Australia in 1855 and concluding with Tasmania in 1896,Footnote 180 set a precedent for democratic participation. Yet, at the federation’s inception, only South Australia and Western Australia had extended voting rights to women, highlighting the divergent and contentious nature of the franchise at the federal level.Footnote 181 Moreover, the disenfranchisement of Indigenous Australians, specifically legislated against in Western Australia and Queensland, along with further exclusions amongst the states, such as ‘unsound mind’ disqualifications, highlighted the disparate approaches to electoral eligibility. While certain constitutional framers advocated for restrictive civic rights, aiming to preserve a dominantly white male electorate, others championed a vision for Australia to embody the most liberal franchise globally, with efforts to enshrine such principles in the Constitution.
The necessity for consensus among the colonies, some of which had already recognised voting rights for marginalised groups, fuelled intense debates. This led to the inclusion of modest limitations upon the Commonwealth’s otherwise unconstrained power to regulate the franchise. These limitations include the prohibition of plural voting in ss 8 and 30 through the concluding clauses ‘each elector shall vote only once’; the mandate under s 30 that the qualifications of voters be uniform between the House of Representatives and the Senate; and the inclusion of s 41 in the Constitution, a provision initially intended to safeguard state-granted voting rights at the federal level for existing voters.
The framers of the Constitution vested Parliament with a purposive power under s 51(xxxvi) to legislate on ‘matters in respect of which this Constitution makes provision until the Parliament otherwise provides’.Footnote 182 This provision grants Parliament with a broad legislative competence, encompassing, among others, the qualifications of electors for both the House of Representatives and the Senate under ss 8 and 30. When these provisions are construed in conjunction with s 51(xxxvi), they collectively empower Parliament to legislate its own electoral franchise, provided such legislation does not contravene the aforementioned limitations. The result was, instead of affixing a franchise in the Constitution, Parliament would be given the power to legislate the franchise insofar as it didn’t enable plural voting, discriminate between the lower and upper house of Parliament, or disenfranchise those already franchised in the States at the point of federation. As put by Forrest and Reid:
The architects of the Constitution placed great faith in the capacity of the elected senators and members to design state law for a system of representative self-government, notwithstanding that they would be legislating in their own interests.Footnote 183
This article strictly concerns the prohibition on voting more than once by electors under ss 8 and 30, one of the few express limitations imposed on the Parliament’s ability to regulate the franchise.Footnote 184 The framers unequivocally viewed the clause that ‘no person shall vote more than once’ as a ‘declaration that the principle of one man one vote should be embodied in [the] Constitution, so as to do away with plural voting’.Footnote 185 Framers quashed concerns that this did not prevent a particular elector from being enrolled multiple times and negatived the insertion of a further limitation that ‘the parliament may not enact that any elector shall have more than one vote’.Footnote 186 Whilst agreeing with the sentiment, the framers believed that the existing clause already ensured that each elector would vote only once, making the proposed amendment redundant. Consequently, the phrase that, following revision, became ‘shall only vote once’ is an explicit prohibition on plural voting and a declaration of the ‘one person, one vote’ principle.
B. One person, one vote
The integration of supported decision-making into the voting process through assisted or proxy voting requires careful consideration of the constitutionally enshrined ‘one person, one vote’ principle. The role of this democratic principle in the supported voting context has been considered by several scholars, including Nussbaum, who argue that supported voting is required to avoid the risk that individuals who are close to a disenfranchised person with an intellectual disability will exercise their vote in favour of the interests of that person, possibly subordinating their own interests and thereby violating the ‘one person, one vote’ principle.Footnote 187 On the other hand, Barclay argues that ‘one person, one vote’ mandates the prohibition of proxy and assisted voting to ensure that no one person expresses too much influence over another and causes the overrepresentation of their political will.Footnote 188 The legal definition of the constitutional prohibition on plural voting departs somewhat from these opposing theories by focusing exclusively on whether an elector’s will is conveyed through a single expression.
Though there is limited case law on the subject,Footnote 189 the most persuasive definition of the constitutional prohibition on plural voting is that set out by Hayne J in Ditchburn v Divisional Returning Officer for Herbert (1999).Footnote 190 In that case, his Honour held that the requirement that each elector vote only once did not preclude parliament from providing for a compulsory preferential voting system.Footnote 191 While a voter’s choice of member is expressed in a complex way in a preferential voting system, it remains a single expression of the will of that voter.Footnote 192 It follows that each redistribution of a person’s preference in a preferential voting system cannot be broadly understood as a unique vote, nor can a vote be narrowly construed as the physical act of placing a ballot paper in the ballot box. Instead, a vote must be understood as a singular expression of electoral will exercised in accordance with the method prescribed by Parliament.Footnote 193
The adoption of a purposive interpretation, which places greater emphasis on the contextual history of plural voting in Australia, particularly its use to grant landowners additional votes in electoral districts where their land was situated, could lead to a narrower understanding of the prohibition.Footnote 194 Such a narrower interpretation may acknowledge the inherent differences between measures designed to assist voters with disabilities and laws that allocate additional votes to landowners across various electorates. Although a textual interpretation of the prohibition is adopted by this article, the significance of purposive interpretation is not to be minimised.
The integration of supported decision-making into the voting process via assisted voting or limited proxy voting is not necessarily inconsistent with the constitutional prohibition on plural voting. During the assisted voting process, the supported elector remains central to the act of voting, with the supporter invited to assist where needed. Regardless of the assistance provided, the power to make the final decision always remains with the supported elector. As a result, votes cast through assisted voting remain a single expression of the supported elector’s will and therefore consistent with the constitutional prohibition.
The same is true for proxy voting, though only in circumstances where the proxyholder is prohibited from exercising their own discretion and electoral judgement and must vote in accordance with the explicit instructions of the principal. Since it was first proposed as a way to allow members of the armed services to vote during World War II,Footnote 195 proxy voting has been dismissed by government agencies, including the AEC,Footnote 196 on the basis that it contravenes ss 8 and 30 of the Constitution.Footnote 197 This argument has been equally applied to the analogous s 23 prohibition of plural voting in the Senate,Footnote 198 barring requests for proxy voting by nursing parents or serving members in the Senate.Footnote 199 While parliamentary practice does not hold authoritative weight in constitutional interpretation, it illustrates how this largely unexplored provision has been approached over time in the absence of decisive guidance from the High Court. The interpretation employed by Parliament nevertheless fails to recognise the important distinction between ‘limited’ proxy voting and ‘unrestrained’ proxy voting. By limiting proxyholders to acting on directives by eligible electors in need of support, limited proxy voting is consistent with the constitutional mandate that each elector vote no more than once. This is because these directives merely communicate the electoral judgement of the principal, meaning the vote cast by a proxy remains a single expression of the will of the principal elector. Conversely, unrestrained proxy voting grants the proxyholder discretion to exercise their own electoral judgement. While the proponents of proxy voting argue that the act of delegating one’s voting power is an exercise of electoral judgement in itself,Footnote 200 by exercising discretion, proxyholders are exercising their electoral will more than once. Such a practice would result in unconstitutional plural voting unless all proxyholders were ineligible to vote themselves, which would be impractical to implement.Footnote 201 Therefore, while the Australian Constitution prohibits unrestrained proxy voting, where the proxyholder exercises their own judgement, it does not necessarily prevent limited proxy voting, so long as the proxyholder solely acts as an intermediary to convey the principal elector’s will without discretion.
C. Incommunicable electoral judgement and plural voting prohibitions
Supported decision-making is a valuable tool that enables more persons with disabilities to have their individual electoral judgements recorded in compliance with the Australian Constitution. However, this section will explore whether casting a vote on behalf of individuals who are unable to communicate their electoral preferences, based on an interpretation of their will, alters this constitutional standing. While both limited proxy voting and assisted voting are constitutionally valid, or at least capable of operating within constitutional bounds, assisted voting is the more practical and viable option.
The prohibitions under ss 8 and 30 of the Australian Constitution prevent proxyholders from voting on behalf of electors who are unable to communicate their own electoral judgement. Supported decision-making typically enables supporters to interpret and express a person’s will by providing their best interpretation of it. However, as Attila Mráz argues, this approach is inherently incompatible with the concept of electoral judgement.Footnote 202 Electoral judgement, by its nature, must originate from the voter and be communicated in some form. Consequently, when a supporter casts a vote based on their own interpretation of an elector’s judgement, rather than a judgement intelligibly communicated, the vote ceases to represent the will of the voter. Instead, it becomes an expression of the supporter’s judgement. It is irrelevant to ask whether the vote cast is reflective of the proxyholder’s own political preferences, it remains their determination of what ascertained preferences to prioritise or disregard. To borrow Mráz’s terminology, while the inputs of the judgement originate with the principal, the output – being the judgement underpinning the vote – is attributable to the proxyholder.Footnote 203
As discussed above, Attila Mráz contends that the will of a voter cannot be ascertained by a supporter without communication.Footnote 204 Where all reasonable efforts to discover the electoral judgement of a person in need of support have been exhausted, the UNCRPD’s broad approach to supported decision-making requires a supporter to provide their best interpretation of the person’s will and preferences.Footnote 205 As Mráz explains, preferences can be identified and communicated through a wide array of non-verbal mediums.Footnote 206 For example, a caretaker may infer from the supported elector’s behaviour over several years that they prefer spending time outdoors, favour kind and soft-spoken figures of authority such as teachers, doctors, and bureaucrats, or gravitate towards loud and confident ones. Additionally, they might even prefer female politicians seen on TV over male politicians.Footnote 207
However, this caretaker remains unqualified to enact a person’s practical judgement because judgement is more than just a mere sum of a person’s preferences. Judgement may involve a selective combination of preferences, a combination that cannot be determined without direct communication, or it may not align with any of the person’s preferences at all. To access someone’s judgement, we need to understand the supported elector’s first-person perspective. It is the agent who can discern which preferences influence the supported elector’s voting judgements, which ones they disregard, and how they weigh them if they conflict. This discernment is impossible without direct communication of judgement. A supporter cannot, therefore, effect a person’s electoral will when their judgement is incommunicable due to the severity and profoundness of their disability. Instead, the supporter is provided discretion to assign a weight to the principal’s preferences, thereby inaccurately representing the principal’s electoral will by exercising their own judgement.
Consider an election between Candidate A and Candidate B. Candidate A supports increased investment in local parks and opposes a new policy aimed at expanding open employment opportunities for persons with disabilities. Candidate B, in contrast, supports the new policy but advocates for decreasing funding to independent living programs for persons with disabilities. Now, consider an elector with a severe disability whose electoral judgement is incommunicable. Their parent, acting as a proxy, has learned through years of observation that the elector enjoys local parks, values independent living, and dislikes their current employment in a segregated disability enterprise.
Both candidates support one policy that aligns with the elector’s preferences and one that conflicts with them. The elector’s parent must now decide whether the elector would prioritise the preferrable employment conditions of open employment over the preservation of their independent living arrangements, while also considering the value of local parks. Applying Attila Mráz’s argument,Footnote 208 discerning an elector’s preferences in such circumstances cannot reflect the will of the elector in the absence of any direct communication. The elector’s true electoral judgement may not even align with the candidates’ policies and may rather be driven by irrational or unknown factors instead. Ultimately, the proxy vote cast reflects the parent’s judgement about how to prioritise these factors and any extraneous considerations. Thus, irrespective of whether the parent’s decision aligns with their own political beliefs, the proxy vote inherently embodies the parent’s judgement rather than that of the elector.
A supporter is equally not entitled to, nor are they truly capable of, casting a vote solely according to the ascertained preferences of the person in need of support. There is no obligation imposed on electors to make informed choices in elections. Quite the contrary, electors are still required to vote because of compulsory voting when they have not had sufficient opportunity to familiarise and inform themselves on the candidates and their policies.Footnote 209 A seemingly reductive definition of electoral ‘choice’ was even delivered in Judd v McKeon (1926) (‘Judd’) where Knox CJ and Gavan, Duffy and Starke JJ stated that the act of ‘choosing’ Senators by eligible electors under s 9 of the Australian Constitution is ‘no more than to make a selection between different things or alternatives submitted, to take by preference out of all that are available’.Footnote 210 While this demonstrates that there is no specific standard for how informed a voter must be, it does not imply that supporters can vote solely based on a principal’s preferences. The simple definition of ‘choice’ was only employed by the plurality in Judd to reject the argument that compulsory voting was beyond the power of s 9 and that an expression of objection to the social order under which the elector chooses to live was neither a valid nor sufficient reason not to vote.Footnote 211 In a separate judgment, Isaacs J stated that s 9 empowers Parliament to implement voting methods designed to ensure that elections accurately reflect the will of the community, the aim that compulsory voting sought to achieve.Footnote 212 The Court’s conceptualisation of choice in Judd was cited by Brennan CJ in Langer v Commonwealth (1996) to demonstrate that the Constitution requires the method of voting prescribed by the Government to leave the voter free to make a choice.Footnote 213 The eventual development of the implied freedom of political communication elevated the meaning of ‘choice’ to an ‘informed choice’, restricting the government’s ability to constrain the extent to which the people can ‘convey and receive opinions, arguments and information concerning matter intended or likely to affect voting’.Footnote 214 Implicit in this jurisprudence is the acceptance that a vote is ultimately a judgement that requires freely accessible information for people to inform that electoral judgement. An elector does not need to act on that information and may rely on other preferential inputs, or no such inputs at all; the act of voting is still inherently a judgement. It consequently remains impossible for a supporter to vote on preferences alone. This becomes particularly true when the preferences inevitably conflict.Footnote 215 The same plural voting problem will arise as a vote requires judgement, even if the act is illegitimately or ignorantly exercised. Without communication, the properties that underpin the ultimate judgement such as assignment of particular weights to the ascertained preferences and the management of conflicts between the preferences are functions of the proxyholder. Granting supporters the authority to vote on behalf of individuals who possess incommunicable electoral judgement would, therefore, bestow those supporters more than one vote.
In light of this limitation imposed by the constitutional prohibition on multiple voting, a valid proxy voting scheme requires a device to distinguish between persons with communicable and incommunicable electoral judgement. Administrators of this device must determine whether to grant or deny a proxy voting arrangement between two people by assessing the ability of an elector to communicate their electoral judgement and the comprehensibility of that electoral judgement from the perspective of the proposed proxyholder. Such a device is difficult to administer and likely to yield imprecise and inefficient outcomes. Just as János Fiala-Butora, Michael Ashley Stein and Janet E Lord argue that a society which attempts to achieve equality through proxy voting is likely to subject otherwise capable persons to proxy arrangements,Footnote 216 a society which attempts to preserve the integrity of the electoral process from the proliferation of unconstitutional plural voting is likely to result in less people who are eligible for this support being unable to access it due to conservative applications of the distinguishing device. On the other hand, if the device was administered in a lenient manner and liberally allowed proxy arrangements for persons with incommunicable electoral judgement, the proxy voting scheme may be so structurally flawed that it operates unconstitutionally. The inherent difficulty of administering a constitutionally-compliant proxy voting scheme makes it less favourable, especially when contrasted with assisted voting.
Assisted voting does not face the same structural challenges and does not require such a device. By placing electors with disabilities at the centre of the voting process and involving them in the physical act of voting, they retain control over the process. That is not to say that exploitation of the assisted voting system is not possible in isolated instances. However, distinct from proxy voting, unconstitutional multiple voting in the assisted voting model arises only out of opportunistic fraud by a few bad actors. This distinction is important because it relegates acts of multiple voting to idiosyncratic contraventions of the constitutional prohibition on plural voting. This is contrasted with inherent structural failings of the proxy voting system. Opportunistic and circumstantial electoral fraud is often tolerated and managed through the electoral commission, law enforcement, and the designated elector regime,Footnote 217 whereas widespread and systemic fraud is not tolerated. In the interests of practical plausibility and constitutional compliance, assisted voting prevails as the most effective support.
Assisted voting allows for the preservation of caretakers’ electoral will as advocated for by Nussbaum, whilst avoiding the constitutional practical issues of proxy voting. As discussed, Nussbaum argues that the disenfranchisement of Case C individuals violates the ‘one person, one vote’ principle as the political interests of two people is currently represented by one vote.Footnote 218 Nussbaum proposed Case C to ensure that concerned caretakers did not have to sacrifice their own electoral judgement in order to promote the interests of persons with profound intellectual disabilities by sharing their voting power with them.Footnote 219 This article dismisses this argument in the Australian legal context. Nussbaum’s approach has not been adopted to remedy similar instances of caretakers having to consider the interests of disenfranchised groups, including parents who represent the interests of their children by voting on intergenerational threats.Footnote 220 Granting parents proxy votes to represent the interests of their children has been debated but,Footnote 221 except for some isolated historical instances,Footnote 222 has not been embraced. While the reasons for disenfranchising adults with intellectual disabilities and children are inherently distinct, with the latter being classified as future members of the electorate, the rationale underpinning the opposition to parental proxy voting relevantly focuses on the empowerment of parents with additional voting power rather than the intention to enfranchise children. Much like the argument promoted by this article, this primary oppositional argument cautioned that the ultimate empowerment of third-parties with proxy votes effectively reintroduces a form of plural voting—a system that modern democracies deliberately abandoned in the 20th century, albeit through different criteria.Footnote 223
On the other hand, assisted voting respects the personal autonomy of electors with intellectual disabilities and places them at the centre of the voting process. Assisted voting only involves intervention when necessary and with the person’s consent. To provide some perspective, a representative from Inclusion Australia shared their lived experience of assisted voting as a person with a disability:
I know people will tell you there are some instructions, but it is still confusing for me. When I go voting I am always with family. They help me slightly and make sure that I am okay. But when my family have voted, I am taking up the time. My mum comes up and gives me some help.Footnote 224
As Brooke’s experience demonstrates, the focus and control remain with the elector in need of support, but they are assisted when it becomes necessary and on their own accord – they are supported not subordinated. Therefore, assisted voting serves to aid the elector with the disability rather than promoting the interests of the caretakers.
Therefore, the prohibition on plural voting in the Australian Constitution aims to ensure that each elector has a single expression of their electoral will. While proxy voting may risk violating this principle by allowing proxyholders to exercise their own judgement in practice, assisted voting, when conducted appropriately, aligns more closely with constitutional requirements by keeping the focus on the elector’s own will. Assisted voting is subsequently the preferred method, as it respects the autonomy of the elector and minimises risks associated with proxy voting.
IV. Conclusion
The integration of supported decision-making mechanisms into the electoral process for persons with intellectual disabilities raises important questions about the balance between enfranchisement and the constitutional prohibition on plural voting. While proxy voting offers a potential means of supporting individuals who may otherwise struggle to engage in the electoral process, its inherent risk of allowing proxyholders to exercise their own judgement presents significant constitutional consequences in the absence of an amendment through a referendum and practical concerns. Unrestrained proxy voting, in particular, directly conflicts with the ‘one person, one vote’ principle enshrined in ss 8 and 30 of the Australian Constitution. Even in case of limited proxy voting, proxyholders are still prohibited from voting on behalf of persons with incommunicable electoral judgement. The practical limitations of administering a system to identify individuals with incommunicable electoral judgement renders proxy voting an inefficient support.
In contrast, assisted voting, which centres around the supported elector and provides intervention only when necessary, presents a more viable and constitutionally sound model. This method maintains the elector’s autonomy while addressing the practical need for assistance in the voting process, ensuring that the final decision remains that of the supported individual. Assisted voting overcomes the structural issues of proxy voting by ensuring that supported electors remain in control of the voting process, thereby reducing the risk of plural voting.
Ultimately, as Australia moves towards greater inclusion of persons with intellectual disabilities in its democratic processes, assisted voting offers a pathway that balances the need for support with the preservation of constitutional principles. This model not only respects the autonomy of electors with disabilities but also ensures compliance with the foundational tenets of Australian electoral law, making it the preferred approach for future reforms.
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