The Facts
Registered voter served with penalty notice for failing to vote in federal election
A registered voter failed to attend a polling booth to vote in the 2016 federal election. He was subsequently issued with a penalty notice by the Australian Electoral Commission, inviting him to pay a fine or give reasons why he failed to vote.
Under the Commonwealth Electoral Act 1918, voting is compulsory in Australia unless an elector has a “valid and sufficient reason” for failing to do so.
Man abstains from voting intentionally and refuses to pay fine
The non-voter replied to the penalty notice by letter, informing the commission that his failure to vote was intentional. He also provided several reasons for not voting, including that:
- Australia prides itself on being a democracy and that forcing him to vote was inconsistent with his democratic right to choose.
- None of the candidates were worth voting for, as they were either too radical, could not form a stable government or did not make it clear what they stood for.
- He was less than impressed by the behaviour of politicians and saw abstaining from voting as a tool to encourage politicians to behave better.
- He had a genuinely held moral code that required him not to vote.
He refused to pay the penalty, and the Commonwealth Director of Public Prosecutions charged him, bringing the matter before the court.
The magistrate who heard the matter determined that the man’s reasons were valid and dismissed the charges against him. The DPP had 28 days to appeal the decision but chose not to do so.
Subsequent media coverage of the decision prompted the DPP to reassess the matter and, three months after the initial decision, it filed an appeal.
It was for the Supreme Court of NSW to determine whether leave should be granted to the DPP to bring the appeal out of time and, if granted, whether the man had contravened the Commonwealth Electoral Act 1918.
Expert commentary on the court's decision
Local Court finds in non-voter’s favour and DPP appeals to Supreme Court
When Adam Easton failed to vote in the 2016 federal election, the DPP charged him under section 245 of the Commonwealth Electoral Act. The NSW Local Court dismissed the charges against Mr Easton.
In Commonwealth Director of Public Prosecutions v Easton [2018] NSWSC 1516, the DPP appealed the Local Court’s decision to the Supreme Court of NSW.
The Supreme Court concluded that adherence by a registered voter to a moral but non-religious belief system that requires him to abstain from voting is not a valid and sufficient reason for failing to vote.
Accordingly, the Supreme Court found in favour of the DPP, granted the appeal and referred the matter back to the Local Court for a re-hearing.
Voting compulsory in Australia without valid and sufficient reason for not voting
Since 1924, it has been compulsory for all eligible Australian citizens to vote in federal elections.
Section 245(15) of the Act provides that it is an offence if an elector fails to vote at an election. However, section 245(15B) provides that subsection (15) does not apply if the elector has a “valid and sufficient reason” for the failure.
In 1990, section 245(14) of the Act was introduced. It states that “without limiting the circumstances that may constitute a valid and sufficient reason for not voting, 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 the failure of the elector to vote”.
Local Court rules reason for not voting is valid and sufficient
The NSW Local Court found in favour of Mr Easton, concluding that he had a valid and sufficient reason for not voting.
The magistrate noted that compelling him to vote for someone that he did not want to vote for went to the heart of the agnostic but nevertheless inherent and important moral framework by which he lived.
The magistrate observed that Mr Easton had a deep, philosophical objection. He had a genuinely held moral code that required him not to vote and voting would breach a truly held conscientious life viewpoint. He had a devout (but not religious) objection to voting.
The magistrate concluded that it “would be simply nonsensical that were his deeply held moral objection subjectively connected to a recognised religion or a belief in god, that this would, of itself, be a valid and sufficient reason, but that a conscious agnostic well-developed moral faith as described by the defendant would not”.
Supreme Court grants DPP extension of time to appeal Local Court’s ruling
The magistrate in the Local Court delivered his decision on 26 September 2017.
The DPP decided not to appeal on the basis that it was a Local Court decision that had no precedential value. However, three months later it lodged an appeal, now believing that it was in the public interest to do so.
The Supreme Court Rules 1970 (NSW) require that an appeal to this decision had to be made within 28 days, but that the court could extend this time frame at any time.
Because the DPP’s appeal was made three months after the Local Court’s decision, the Supreme Court had to consider whether an extension of time should be granted.
Media attention to case provides basis for allowing appeal
The court noted that after the magistrate’s decision was published on 20 December 2018, a number of articles began to appear on the internet describing the decision as “spectacularly innovative”, and “ground-breaking” and opining that it “may mean an end to compulsory voting in Australian Federal elections”.
The court pointed out that the reporting was inaccurate, particularly the suggestion that the decision signalled the end of compulsory voting in Australia.
The court did not think that it would be immediately apparent to any non-legally qualified person that the decision had no precedential value. The inaccurate reporting had the capacity to mislead voters. A person might incorrectly conclude that they could abstain from voting on the basis of a conscientious objection.
The court therefore concluded that it was in the public interest to grant the extension of time.
Pre-1990 caselaw establishes what is a valid and sufficient reason to abstain from voting
Mr Easton was not the first to test Australia’s compulsory voting laws, and in its judgement the court reviewed caselaw made prior to the introduction of section 245(14).
In the case of Judd v McKeon (1926) 38 CLR 380, a member of the Socialist Labor Party declined to vote because his party stood for ending capitalism, and its members were prohibited from voting for supporters of capitalism. The voter in that case argued that political parties perpetuate capitalism, exploit the working class and create war and unemployment.
The High Court held that the voter’s reasons for not voting amounted to “no more than an expression of an objection to the social order of the community in which he lives” and that such an objection is not a valid and sufficient reason for refusing to vote.
Another case concerned a voter who told the court that he believed that “Christ is the truth” and that political systems conceived by men are destructive and opposed to truth and freedom. He objected to compulsory voting as it serves the interests of political parties and big business.
Despite the religious connection to that voter’s reasons for abstaining, the court observed that the elector’s objection to compulsion was simply an objection to being obliged to obey the law laid down by parliament. This was not a valid or sufficient reason for not obeying that law.
On the other hand, the courts have held that valid and sufficient reasons for not voting include physical obstruction, sickness, natural events, accident, or a competing public duty – for example, if a voter had to stop to help someone, stop crime or assist in some great disaster on the way to the polling booth.
Court concludes conscientious objection not a valid and sufficient reason to abstain from voting
Although, section 245(15)(B) has been judicially considered on a number of occasions, this case was the first time that section 245(14) was considered by a court.
In considering the operation of section 245(14), the court concluded that it was “not satisfied that by enacting s 245(14) of the Act the Parliament intended to depart from what the High Court held in Judd v McKeon” and the other cases summarised by the court. Such an amendment would require “very clear statutory language”.
The court rejected Mr Easton’s argument that the “religious duty” exception in section 245(14) extended the operation of the Act to allow other subjectively based non-religious objections to voting. If it was intended by parliament to allow any non-political conscientious objection, the question arises as to why the text of the Act would be limited to a “religious duty” in the first place.
The court also found it difficult to see how compulsory voting could continue to be enforced if a non-voter could validly assert that a moral framework led them to believe that it was their duty to abstain from voting. Allowing such a defence would “challenge the fundamental obligation at the heart of compulsory voting”.
This case raised some interesting questions regarding the operation of compulsory voting laws. It is clear that a genuinely held religious objection constitutes a valid exception. A genuinely held philosophical objection does not. Whether the law should operate this way is another question.