Voting with an 'Unsound Mind'? A Comparative Study of the Voting Rights of Persons with Mental Disabilities
Voting with an 'Unsound Mind'? A Comparative Study of the Voting Rights of Persons with Mental Disabilities
复制标题
带着“不健全的头脑”投票？
DOI：
--
复制
发表时间：
2016
期刊：
影响因子：
--
通讯作者：
W. Bonython
中科院分区：
文献类型：
--
作者：
T. Ryan;A. Henderson;W. Bonython
Introduction While Australia has a system of universal franchise, in the sense of a system of voting that is broadly inclusionary, there are some notable exceptions – minors and some convicted criminals are excluded, for example. While the political participation of these excluded groups sometimes attracts attention in the media, there is another group that has been even more marginalised, both within society and within debates over the franchise. This group is persons with mental disability or, more precisely, with actual or assumed impaired decision-making capacity resulting from chronic or acute mental illness, dementia, intellectual disability or brain injury. This appears to be changing as individual nations (including Australia) assess their compliance with the United Nations (‘UN’) Convention on the Rights of Persons with Disabilities (‘CRPD’) on a range of issues and as a greater number of citizens experience dementia in an ageing population. This article seeks to contribute to this reform momentum by comparing the laws relating to this issue across jurisdictions, particularly Japan and Australia, to argue for a political franchise without discrimination against persons with mental disabilities. The article proceeds as follows. Part II provides a broad overview of domestic and international trends in adult guardianship and the political rights of persons with mental disabilities. Part III describes the Japanese legal framework for guardianship, capacity, and voting, and analyses a recent constitutional judgment that resulted in Japan repealing laws that disenfranchised persons with mental disabilities. Part IV describes the Australian position, including the history of provisions that disqualify from voting persons of (in the language of the statute) ‘unsound mind’, to demonstrate that this position is rooted in exclusionary social policies of the late 19th century and that difficulties in describing the nature of the exclusion have dogged the provision since its inception. Part V draws some comparative lessons to argue that Australia should follow Japan’s lead. Australia should adopt an inclusionary approach to voting that gives vulnerable persons the support and protection necessary to vote rather than an exclusionary approach that alienates persons with mental disabilities from the political community and achieving full citizenship. This Part also argues that a comparative methodology has value in analysing this issue, despite differing institutional frameworks. For example, while constitutional restrictions on the Australian Parliament are arguably weaker with regard to regulating the franchise, the fundamental principles are the same and are normative as well as doctrinal. This point is reinforced by the observation in Part V that that the question of how persons with mental disabilities are integrated into the franchise has deeper significance for the role that electoral law has for constituting a more inclusive citizenry. A comparative approach also provides a model for how international obligations can or should be implemented through domestic law. For these reasons, Part VI concludes by broadly concurring with the recommendations of a recent Australian Law Reform Commission (‘ALRC’) inquiry. In particular, the Australian Parliament should repeal the disqualification from voting and enrolment in section 93(8)(a) of the Commonwealth Electoral Act 1918 (Cth) (‘Electoral Act’) of persons of ‘unsound mind’ and institute a system of exemptions from compulsory voting for persons established under the National Decision-Making Principles to be incapable of expressing a voting preference even with comprehensive support measures.
