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ABC News
ABC News
Health
national disability affairs reporter Elizabeth Wright and the Specialist Reporting Team's Celina Edmonds

An 'archaic' law has been removing Australians with disability from the electoral roll 'in droves', advocates say

Shea MacDonough, seen here working at her job at JB-HiFi, is voting in her first federal election. (ABC News: Peter Drought)

Melbourne woman Shea MacDonough is 36 years old and excited to be voting in her first federal election.

Ms MacDonough, who lives with Down syndrome, was taken off the electoral roll by her parents in 2012. 

They were concerned she didn't understand the voting process and were worried they could influence her vote. 

But no one realised how hard it would be for Ms MacDonough to get back on the electoral roll when she wanted to.

It was during Australia's same sex marriage referendum in 2017, that Ms MacDonough decided she wanted to have her say.

"My cousin and her partner, they're both gay, and I wanted to be on the same sex marriage vote so I could vote for that," she said.

Shea MacDonough is looking forward to voting in the federal election. (ABC News: Peter Drought)

With her parents' support, Ms MacDonough went onto the electoral roll website to re-register but later received a letter from the Australian Electoral Commission (AEC) saying she'd been rejected.

Quoting a section of the Commonwealth Electoral Act created in 1918, the letter said she'd been removed from the roll "by reason of being of unsound mind" and being "incapable of understanding the nature and significance of enrolment and voting".

That upset Ms MacDonough, as it said she could not be restored to the roll unless she provided "documentary evidence from a medical practitioner" that she was now "capable of understanding".

Shea MacDonough wrote this letter back to the AEC saying she "most certainly" did understand the significance of voting. (Supplied)

Ms MacDonough penned a response to the AEC, which helped kick-start the process of getting her back on the roll.

The re-enrolment process took three months and meant she missed out on voting in the same sex marriage referendum.

Since being re-enrolled later in 2017, Ms MacDonough has participated in the Victorian state election and is looking forward to voting in the federal election on May 21.

'Incredibly archaic'

Natalie Wade, vice president of Australian Lawyers for Human Rights, said the "unsound mind" provisions, which are still in place, "disproportionately" impacts people with disability.

She said they'd been removed in "droves" from the electoral roll compared to people without disability.

"We're really concerned that in 2022, we still have these laws in place," Ms Wade said.

"The current wording... targets people with disabilities, particularly those with intellectual disability and cognitive impairment, who have not been afforded the right to education, who may have low literacy, who have not been afforded the right to social participation or employment."

Natalie Wade says the 'unsound mind' provisions are "incredibly archaic". (ABC News: Fletcher Yeung)

According to a 2014 report by the Australian Law Reform Commission (ALRC), more than 28,000 people were removed from the federal electoral roll between 2008 and 2012.

The AEC did not provide a response to the ABC's request for more current data of the numbers of people removed from the electoral roll.

A campaign by 65 disability and legal rights organisations is calling for reform of the "unsound mind" provisions, as they pertain to people with disability.

An open letter sent to Prime Minister Scott Morrison and Labor leader Anthony Albanese last month calls for "urgent" reform during the next term of government.

"It harks back to a time where we referred to people with disabilities in very grotesque ways -- as lunatics in asylums -- but we absolutely must ensure that our laws reflect our current understanding of disability."

Law 'inconsistent' with human rights

Concern about the law is not new.

In 2014, the ALRC issued a report calling for the electoral act to be amended.

Ms Wade said the laws were "inconsistent" with Australia's obligations under the United Nations Convention on the Rights of Persons with Disabilities, which states "people with disability must be afforded the right and opportunity to vote on an equal basis with others".

The AEC's Evan Ekin-Smyth said it was important a right was not being taken away from someone "without due process".

"However, in a compulsory voting system it is also important that an obligation is not put onto an individual who cannot, or can no longer, understand the nature and significance of enrolment and voting," Mr Ekin-Smyth said.

"The importance of a provision that provides for removal from the roll in these circumstances would be acutely understood by carers and family members of people with advanced dementia for instance."  

Mr Ekin-Smyth said the AEC "regularly" received feedback that the words 'unsound mind' were "not appropriate."

"We endeavour to be sensitive in our communication," he said. 

'We are valuable members of society'

Earlier this year, Tasmanian teenager Caitlin Woolley wrote about the Australia she wanted as a 19-year-old living with Down syndrome. 

It was read to the House of Representatives by independent MP Andrew Wilkie.

May 21 will be the first federal election in which Ms Woolley will be able to vote.

"I am especially interested in issues of disability... about inclusion for people of disability in their community, in health and in work," she said.

Caitlin Woolley is also set to vote in her first federal election. (ABC News: Owain Stia-James)

Ms Woolley is a health ambassador for Down Syndrome Australia and has met with politicians from across the political spectrum, who she said "wanted to learn more" about people with disability.

Ms Woolley said each person with Down syndrome had "their own ideas and opinions".

"We need to speak up for what is important to us and being included in voting helps us do that."

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