Give incarcerated people the vote, say the First Peoples’ Assembly of Victoria

Earlier this month, as the toxic national debate on the Indigenous Voice to Parliament raged on, Bangerang and Wiradjuri woman Aunty Geraldine Atkinson cast her vote on the opening day of voting for the second iteration of the First Peoples’ Assembly of Victoria. 

The inaugural co-chair of the Assembly spoke of her pride in being involved in a democratic process that allowed the original peoples of Victoria to have a say on policies that directly impacted them. 

“Aboriginal people are the experts on our own lives. We know what we need to create a better future for our people,” Aunty Geraldine said. 

For Stephen*, an Indigenous man currently incarcerated in Victoria, elections would not be something he would normally be involved in. Like everyone in Australia who is serving a custodial sentence of three years or more, he is not entitled to vote in federal elections (this rises to five years in Victorian state elections). 

This restriction also covers referendums, meaning Stephen will be unable to have a say on whether the oldest continually living peoples on earth will be represented in the constitution later this year. 

An amendment presented to Parliament by the Greens earlier this year to allow more incarcerated people to vote in the referendum was shut down in the Senate.

In not being able to vote, incarcerated people are unable to exercise their right to be involved in the democratic process. In Victoria, despite numbering approximately 1% of the population, First Nations peoples make up 10.5% of the prison population. 

It is this gross over-representation in the carceral system that has led to the First Peoples’ Assembly of Victoria choosing to allow voting to anyone aged 16 or above who identifies as Aboriginal or Torres Strait Islander. 

First Peoples’ Assembly of Victoria head of engagement and communications, Kokatha woman Amy Rust, is adamant that for the Assembly to negotiate Treaty — a pillar of the Assembly’s second electoral term — everyone must be involved. 

“Treaty is about systemic reform — it’s about mob having the freedom and the power over what happens to our community, Country and culture,” she told Crikey.

“Mob in prison have often experienced firsthand the impacts of colonisation and systemic racism, whether that’s through the criminal justice system, unfair policing or not having access to community and support services when they need them most.” 

The Assembly’s election and electoral role are not overseen by the Victorian Electoral Commission, given it was decided the process should be completely separate from the government system. Because the Assembly’s election and enrolment operate separately from a “normal” election (it’s limited to First Nations peoples), it doesn’t follow the same rules laid out in the federal and/or state constitution. It is more like a trade union in that way, or voting for president of your football club.

As Rust told Crikey, “The journey to Treaty needs to be done on our terms. To have faith in the process our community needs to see that our thinking isn’t being constrained by colonial structures and systems. Our electoral roll is exactly that, ours.”

“This is Aboriginal democracy in action. Our approach is inclusive, it’s democratic, and the Assembly’s structure also incorporates our cultural practices with Traditional Owners groups having their seats, the development of an Elders’ Voice or council and things like that.”

Stephen notes that support for people leaving prison is one of the most important things he wants from Treaty.

“When most people are released, they have nowhere to go and nothing to their name, so they can end up reoffending and being locked back up,” he said. 

Another prisoner told Crikey that their desired outcome from Treaty was to “stop Aboriginal children being thrown into prison in the first place”.

Rust was particularly keen to highlight the role Treaty will have in letting First Nations peoples make decisions that impact them directly. 

“We specifically go into prisons and yarn with mob there as they can’t come to our usual community events. When we go into prisons, you can see the excitement of mob. They’re happy to have someone to yarn with and are interested to hear about the process. Like everyone, they have ideas about what Treaty could deliver for our people.”

In a population that experiences high levels of incarceration, going into prisons, explaining Treaty and promoting avenues in which imprisoned people can be involved in the voting process is vital.

“Our team members also get lots of questions from mob ranging from ‘what is Treaty?’ to more in-depth questions about how Treaty will work with Native Title and other established legislation,” Rust said. 

In the past month, the Yoorrook inquiry — an Indigenous truth-telling inquest set up by the Assembly — saw Victoria’s Chief Police Commissioner Shane Patton apologise for the actions of the Victorian police that caused “trauma experienced by so many Aboriginal families”.

This apology doesn’t operate in a void. The people who have suffered at the hands of police overreach, lack of oversight and racial discrimination have — often as a direct result of this “undetected, unchecked and unpunished” behaviour — lost their right to vote due to their incarceration. 

The Victorian government, which has currently stymied calls from Indigenous groups such as the Victorian Aboriginal Legal Service to immediately raise the age of criminal responsibility to 14 — a major factor in Indigenous incarceration — has nonetheless told Crikey it “continues to support” the full independence and negotiating power of the First Peoples’ Assembly. 

In response to a question about whether voting for all prisoners and people over the age of 16 was a positive, Victorian Minister for Treaty and First Peoples Gabrielle Williams reserved judgment, simply noting:

The administration of the election of the new Assembly is decided by the First Peoples’ Assembly of Victoria, in line with the principle of self-determination in Victoria’s Treaty process.

For people like Stephen, and many of the other incarcerated First Nations peoples in Victoria, the second election of the First Peoples’ Assembly of Victoria offers the opportunity to be involved in a process that impacts him directly. 

In no other election, in no other part of Australia, is he currently able to do that. 

* A false name has been used to protect the individual’s identity.