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Compulsory Voting, Failure to Vote and Your Options – What You Need to Know for the Upcoming Federal Election

By Natalie Lenwood – Trainee Solicitor at Kingston Lawyers 06.05.2022

Compulsory Voting – what is it?
Compulsory voting has long been considered an important, and durable feature of Australian democracy. Introduced in 1924, compulsory voting aimed to improve the low rates of voter turnout, which have not fallen below 90% since its introduction. In addition to its tangible effects on voter turnout, compulsory voting arguably endeavors to encourage citizens to actively engage with, and acquire a greater understanding of the Australian political system and contentious public matters. Despite around 15% of democratic countries implementing mandatory voting, Australia is one of only two democracies to enforce compulsory voting with fines, with the other country being Belgium.

What happens if you fail to vote?
Failure to vote is prescribed as an offence under subsection 245(15) of the Commonwealth Electoral Act (1918), and applies to any Federal, State or Council elections. Failure to vote will firstly result in an Apparent Failure to Vote Notice. This notice gives opportunity to provide an explanation as to why there was a failure to vote, and must be responded to within 28 days. If this notice is not responded to, or the excuse given is not considered ‘valid and sufficient’ an Infringement Notice and fine will be issued. For this federal election, the fine amounts to $91.00. This fine must be paid, or other action must be taken, within 28 days. If this does not occur, a Penalty Reminder Notice will be issued, requiring payment of an additional fee of $26.20 within 28 days, or other action.

What action can be taken?
If issued with an Infringement Notice, or Penalty Reminder Notice, options include paying the fine, requesting a payment plan or extension, requesting an internal review, or electing to go to court. To request a payment plan or extension, a request in writing must be made to the Victorian Electoral Commission, including details such as the infringement number, address and contact number, and the reason for request. Applications are assessed on a case-by-case basis, with consideration to outstanding fine amount, financial status and income, payment history, and any hardship. An internal review can be requested if it is believed there has been a mistake of identity or belief that the decision is contrary to the law. Additionally, an internal review may be requested if the individual was unaware of the notice and it was not personally delivered, or if affected by special or exceptional circumstances. Finally, the matter can be taken to the Magistrates’ Court, to be determined at a formal hearing. If a court hearing is elected, a magistrate will decide the case, and appropriate penalty.

What will constitute a ‘valid and sufficient reason’ – an examination of the cases:
In Judd v Mckeon, the High Court set a powerful precedent regarding the limited scope of what will constitute a ‘valid and sufficient reason’. Mr Judd argued he should be excused from voting in a Senate election, as voting did not align with his political ideology. As a member of the Socialist Labour Party, he argued political parties participating in elections do ‘all in their power to perpetuate capitalism’, and rather, his party stands for the ‘ending of capitalism and the inauguration of socialism’. However, the High Court found that this failed to amount to a valid and sufficient reason. Despite this, the High Court at 386 did expound upon some practical examples of when reasons would be regarded as ‘valid and sufficient’:

Physical obstruction, whether of sickness or outside prevention, or of natural events, or accident of any kind, would certainly be recognised by law in such a case. One might also imagine cases where an intending voter on his way to the poll was diverted to save life, or to prevent crime, or to assist at some great disaster, such as a fire: in all of which cases, in my opinion, the law would recognise the competitive claims of public duty.

Additionally, in Lubcke v Little, Mr Little attempted to argue that he had no preference among the electoral candidates. However, this was again found to be neither valid nor sufficient. This was affirmed by the High Court in Faserson v Bridger.

In O’Brien v Warden, Mr Warden attempted to argue he had a valid and sufficient reason for failing to vote, arriving in Canberra a little over a week before the Territory election. As such, he contended that he had insufficient information to enable him to decide on an order of preference. Overturning the first instance decision, Chief Justice Blackburn of the ACT Supreme Court found this to be invalid and insufficient, affirming Judd v McKcKeon.

Without limiting what may constitute a ‘valid and sufficient reason’, subsection 245(14) of the Electoral Act provides that ‘the fact that an elector believes it to be part of his or her religious duty to abstain from voting constitutes a valid and sufficient reason for failing to vote’. This provision was bought before the courts for the first time in CDPP v Easton, whereby Mr Easton argued that voting in the 2016 federal election would have made him feel ‘morally corrupt’. A self-declared agnostic, Mr Easton described he believed in an ideology of ‘freedom’, with a ‘moral code’ requiring him not to vote. Despite being successful on first instance, the court rejected Mr Easton’s argument that the ‘religious duty’ exception extended to subjectively-based moral objections to voting. As such, the ‘religious duty’ exception remains narrowly construed.

Cases cited:
Judd v McKeon (1926) 38 CLR 380
Lubcke v Little [1970] VR 807
Faderson v Bridger (1971) 126 CLR 271
O’Brien v Warden (1981) 37 ACTR 13
CDPP v Easton [2018] NSWSC 1516

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