Views of the Committee on the Rights of Persons with Disabilities dated February 16, 2018 in the case of Fiona Given v. Australia (communication No. 19/2014).
In 2014, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Australia.
Subject of the message: the right to participate in the secret ballot.
Substantive issues: general obligations under the Convention; equality and non-discrimination; accessibility and participation in political and public life.
The Committee's legal position: article 29 of the Convention on the Rights of Persons with Disabilities requires States parties to ensure that persons with disabilities can participate effectively and comprehensively in political and public life on an equal basis with others, including guaranteeing their right to vote. The Committee also recalls that, in accordance with article 29 of the Convention, the State party needs to adapt its voting procedures by ensuring that they are appropriate, accessible and easy to understand and use. Regarding the accessibility of voting procedures, the Committee recalls that the concept of accessibility concerns groups, while the concept of reasonable accommodation concerns individuals. This means that the obligation to provide accessibility is an ex ante obligation. States Parties are therefore obliged to provide access before receiving individual requests to enter a place or use a service (paragraph 8.5 of the Considerations).
The Committee... Recalls that, in accordance with article 9, paragraph 1, of the Convention, States parties shall take appropriate measures to ensure that persons with disabilities have access, on an equal basis with others, to information and communication, including information and communication technologies and systems. In addition, the Committee recalls that, in accordance with article 9, paragraph 2 (g), of the Convention, States parties should also take appropriate measures to promote access by persons with disabilities to new information and communication technologies and systems. The Committee... Recalls that the importance of information and communication technologies lies in their ability to create opportunities for the provision of a wide variety of services, modify existing services and increase the demand for access to information and knowledge, especially in relation to underserved or socially excluded groups of the population, such as the disabled. In this regard, new technologies can be used to promote the full and equal participation of persons with disabilities in society, but only if they are designed and physically implemented in such a way as to ensure their accessibility. New investments, research and goods should help eliminate inequality, not create new barriers. The Committee... Recalls that, in accordance with article 5, paragraph 2, of the Convention, States parties are obliged to prohibit any discrimination on the basis of disability and to guarantee persons with disabilities equal and effective legal protection against discrimination on any ground and that denial of access to the physical environment, transport, information and communications, as well as services open to the public, must be explicitly defined as a prohibited act of discrimination (paragraph 8.6 of the Considerations).
The Committee recalls that the obligation to implement accessibility is unconditional. An entity obliged to ensure accessibility cannot justify non-fulfillment of this task by referring to the burden of providing access to persons with disabilities (paragraph 8.8 of the Considerations).
The Committee recalls that article 5 [of the Convention on the Rights of Persons with Disabilities] enshrines the principle of equal protection of all persons before and under the law. States parties should prohibit any discrimination on the basis of disability and guarantee persons with disabilities equal and effective legal protection against discrimination on any ground. This obligation implies that States parties must ensure the realization of the rights enshrined in the Convention for all persons with disabilities and refrain from creating discriminatory legislation and practices that may result in factors of discrimination depending on the type of disability (paragraph 8.9 of the Considerations).
The Committee's assessment of the factual circumstances of the case: The Committee takes note of the State party's argument that the author had the opportunity to choose a person to assist her in voting. However, it also notes that none of the options available to the author during the 2013 federal elections would have allowed her to exercise her right to vote in the way she would have liked, in particular without having to inform the person accompanying her about her political choice. The Committee... Notes that gaining access to the electronic voting system would allow the author to participate in an independent secret ballot without disclosing his political choice to anyone and on an equal basis with others (paragraph 8.7 of the Considerations).
The author suffers from cerebral palsy and, as a result, has poor control of his muscles, has limited motor abilities and cannot speak. She uses an electric wheelchair, and uses an electronic voice-generating device to communicate.
During the elections, the author wanted to exercise her right to participate in the secret ballot on an equal basis with other voters. However, due to her limited motor abilities, she could not fill out the ballot, fold it and place it in the ballot box without assistance, which would violate the secrecy of her voting. The author claims that in order to be able to participate in an independent secret ballot, she should have been given access to an electronic voting system, for example, to a special interface on a computer. She notes that she regularly uses adaptive technologies, thanks to which she can use the keyboard and computer screen without assistance. Before the voting day, the author studied the documents of the Election Commission on the available voting options. She concluded that, in accordance with the Election Law, the auxiliary electronic voting system is available only to persons registered as having "visual impairments".
The Committee recalls... that the electronic voting procedure is widely used for visually impaired people in the State party and that the "iVote" electronic voting procedure has been used during elections in the State of New South Wales since 2011. He... Notes that the State party has not provided any information that could justify the claim that the use of such an electronic voting procedure would constitute a disproportionate burden, which prevented its use during the 2013 federal elections for the author and for all persons in need of such an adjustment (paragraph 8.9 of the Views).
The Committee's conclusion: the State party has not fulfilled its obligations under subparagraphs (i) and (ii) of paragraph (a) of article 29, considered separately and in conjunction with paragraph 2 of article 5, subparagraphs (a), (b), (d), (e) and (g) of paragraph 1 of article 4 and paragraph 1 and subparagraph (g) Article 9, paragraph 2, of the Convention (paragraph 9 of the Views).