Please note this update replaces Electoral Backgrounder No 17 published in May 2010.
Electoral Backgrounders are published for the general information of AEC staff and people interested in electoral issues. Electoral Backgrounders present and analyse the issues on various topics, but do not promote a particular position or represent legal advice, and should not be relied upon as such. Anyone requiring legal advice should consult their own legal advisers.
1. Electoral Backgrounders are published by the Australian Electoral Commission (AEC) to provide a basic introduction to electoral law, policy and procedures for the information and guidance of all interested parties.
2. The AEC administers the conduct of federal elections and referendums under the provisions of the Commonwealth Electoral Act 1918 (the Electoral Act) and the Referendum (Machinery Provisions) Act 1984 (the Referendum Act).
3. In 1911, the former Electoral Act was amended to make enrolment compulsory. In 1924, to increase voter turnout and reduce party campaign expenditure, the Act was amended to make voting at federal elections compulsory. The provisions relating to the conduct of a referendum were removed from the Electoral Act in 1984 by the introduction of the Referendum Act, following a recommendation in the First Report of the Joint Select Committee on Electoral Reform in 1983.
4. The Electoral Act and the Referendum Act are available on the Office of Parliamentary Counsel’s commonwealth law website. Unless otherwise specified, all references to sections are to sections of these Acts. Also please note, the words ‘voter’ and ‘elector’ are used interchangeably throughout this publication.
5. This Backgrounder provides introductory information in relation to compulsory voting and its contents are a guide only. If you are in doubt about the interpretation of the law in particular circumstances you should seek your own independent legal advice.
6. The interpretation of the law presented here is consistent with advice provided to the AEC by its legal advisers, but in the final analysis it is for the courts to decide upon the interpretation of the law in any particular case. Readers should not rely on the information in this document as a statement of how the law will apply in any particular case.
7. This Backgrounder discusses compulsory voting in practice under the following headings:
8. The AEC itself does not have an official view on whether enrolment and voting should or should not be compulsory. This is a matter for the Parliament of Australia to decide. The AEC conducts all elections according to the law in force at the time.
9. Subsection 245(1) of the Electoral Act provides that: ‘it shall be the duty of every elector to vote at each election’.
10. Similarly subsection 45(1) of the Referendum Act provides that: ‘it is the duty of every elector to vote at a referendum’.
11. Electors who are validly enrolled under the Electoral Act will also be entitled to vote at a referendum (see s 4 the Referendum Act).
12. An ‘elector’ is someone whose name appears on the electoral roll. The Electoral Act requires Australian citizens aged 18 years and over to enrol. The Act also entitles persons enrolled as at 25 January 1984 who were British subjects within the meaning of the relevant citizenship law, to remain on the electoral roll.
13. These enrolment and voting requirements are subject to the following qualifications:
14. Electors should be aware that it is an offence to vote more than once in the same election or referendum (see s. 339(1A) of the Electoral Act; and s 130(1A) of the Referendum Act or the AEC’s Electoral Backgrounder: Enrolment fraud and multiple voting).
15. Electors may fulfil their duty to vote by casting their vote in one of the following ways:
16. Electors will be issued ordinary votes at a polling place on polling day within the division for which they are enrolled. The elector will be issued a ballot paper/s and the polling official will mark the electors name off the electoral roll for the division.
17. When attending a polling place to vote on polling day, s 233 of the Electoral Act and s 35 of the Referendum Act requires an elector, on receiving a ballot paper/s, to retire alone to an unoccupied voting compartment and there, in private, mark his or her vote on the ballot paper/s. The elector must then fold the ballot paper/s so as to conceal his or her vote and deposit it in the ballot box.
18. Certain electors may also be permitted to vote outside a polling place if they are unable to enter, for example because of physical disability, illness, or advanced pregnancy (see s 234A of the Electoral Act and s 36A of the Referendum Act).
19. In general, an elector may cast either a pre-poll or postal vote if on polling day the elector:
20. Electors who have applied to be a postal voter for a federal election will be issued their ballot paper/s along with a reply paid envelope for the division for which they are enrolled.
21. Electors will be issued a pre-poll ordinary vote when attending a pre-poll voting centre within the division for which they are enrolled. The elector will be issued a ballot paper/s and the polling official will mark the elector’s name off the electoral roll for the division.
22. Electors attending a pre-poll voting centre which has not been declared a polling place for that division under s 200BA (1A) of the Electoral Act or s 73AA of the Referendum Act will be required to complete a declaration vote.
23. A declaration vote requires the elector to provide their marked and folded ballot paper/s to the presiding officer, who will then seal the ballot paper/s in a declaration envelope that is signed by the voter and then place the envelope in a ballot box.
24. Provisional (declaration) votes are available where:
25. Provisional voters may need to provide evidence of identity (e.g. a driver’s licence or passport), where the signature on the declaration envelope does not match the elector’s enrolment record. If this is the case, they will be notified in accordance with Schedule 3 to the Electoral Act or Schedule 4 to the Referendum Act and asked to provide evidence of identity by the close of business on the first Friday following polling day.
26. Electors will be issued with an absent (declaration) vote if on polling day they attend a polling place or voting centre outside of the division but in the state or territory for which they are enrolled.
27. More information on the different types of voting.
28. An elector will be guilty of an offence under s 245 of the Electoral Act and s 130 of the Referendum Act if the elector fails to vote at an election or a referendum without a valid and sufficient reason.
29. Under s 245(2) of the Electoral Act and s 45(2) of the Referendum Act the Electoral Commissioner is responsible for preparing a list for each division of the names and addresses of the electors who appear to have failed to vote at an election or referendum. Electors who have been identified as an apparent non-voter will be included on this list.
30. This list is then provided to each Divisional Returning Officer (DRO) so that a penalty notice may be sent by post to every elector whose name and address appears on the list of apparent non-voters within three months of the election or referendum (see s 245(3) of the Electoral Act and s 45(2) of the Referendum Act).
31. Under s 245(4) and s 45(4) the DRO is not required to send a penalty notice to electors who have died, were absent from Australia on election day or polling day, were known to be ineligible to vote at the election or referendum, or who have supplied a valid and sufficient reason for not voting.
32. The penalty notice posted to an elector advises that he or she appears to have failed to vote and that it is an offence to fail to vote at an election or referendum without a valid and sufficient reason. The elector is further advised that if he or she does not wish to have the matter dealt with by a court, the elector may, within a specified time either:
33. If no reply is received to the first penalty notice, a second penalty notice must be sent by the DRO.
34. Under s 245(11) of the Electoral Act or s 45(11) of the Referendum Act, if an elector is unable to respond to correspondence from the DRO because of absence from his or her residential address or because of physical incapacity, then another elector who has personal knowledge of the facts may respond on behalf of the elector who appears to have failed to vote.
35. If the elector pays to the DRO the $20 penalty for failing to vote, then the matter ends there.
36. Where an elector responds to the penalty notice and provides a reason for not voting, the DRO must be satisfied that the reasons provided were valid and sufficient in accordance with s 245(5) or s 45(5). If the DRO is not satisfied that the reason provided is valid and sufficient, then the DRO must, in accordance with s 245(9) or s 45(9), write to the elector advising that:
37. Where an elector fails to pay the penalty of $20, an elector may be prosecuted in accordance with s 245(15) or s 45(15).
38. An elector may be prosecuted for failing to vote at an election or a referendum without a valid and sufficient reason, or for making a false or misleading statement in response to a penalty notice issued by a DRO (see s 245(15) and(15C) of the Electoral Act and s 45(14) and (14C) of the Referendum Act). The court may impose a maximum penalty of $180 in accordance with section 4AB of the Crimes Act 1914. In addition, court costs may also be payable.
39. It should be noted that if a non-voter has been convicted and fined by a court, and the non-voter decides not to pay the fine, then it is for the court to decide what action should be taken or if a further penalty should be imposed. The action taken by the court in relation to fine defaulters may vary depending on the state or territory in which the conviction is recorded, and may involve community service orders, seizure of goods, or a short period in jail. In some jurisdictions the court may have no alternative to ordering a jail sentence for fine defaulters. However, this is a matter for the courts and not for the AEC.
40. The original decision of the DRO as to whether a reason for not voting is valid and sufficient is based on the merits of each individual case, in accordance with the law as previously interpreted by the courts.
41. Under s 245(14) of the Electoral Act or s 45(13A) of the Referendum Act the fact that an elector believes it to be a part of his or her religious duty to abstain from voting constitutes a valid and sufficient reason for not voting.
42. The decisions of the court on the interpretation of the term ‘valid and sufficient reason’ have developed over the years into a substantial body of law that guides DROs in their decision-making in individual cases.
43. In Judd v McKeon (1926) 38 CLR 380, Mr Judd provided the following reason for not voting at a Senate election:
All the political parties and their candidates participating in the election support and do all in their power to perpetuate capitalism with its exploitation of the working class, unemployment, prostitution, etc. The Socialist Labour Party, of which I am a member, stands for the ending of capitalism and the inauguration of socialism – and, consequently, its members are prohibited from voting for the aforementioned supporters of capitalism.
The Socialist Labour Party has paid and lost hundreds of pounds in Federal election deposits for its candidates. The unjust penalty of 25 pounds on each candidate penalizes us if we participate in a Federal election, and your letter suggests that we will be penalized if we don’t. Is this fair?
In the High Court it was decided that this was not a valid and sufficient reason, Chief Justice Knox, and Justices Duffy and Starke, remarked:
These reasons do not purport to express the views of the appellant but those of the party to which he belongs; and in that view his only excuse, which is clearly insufficient, is that his party prohibits him from voting… But if the reasons be taken as representing the individual views of the appellant they amount to no more than the expression of an objection to the social order of the community in which he lives. In our opinion such an objection is not a valid and sufficient reason for refusing to exercise his franchise.
The High Court gave some practical examples of what would be regarded as valid and sufficient reasons for not voting:
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.
However, the Court warned this was not the only class of reason that would be accepted, it will depend on the circumstances in each case.
44. In Lubcke v Little  VR 807, Mr Little testified that he had no preference among the candidates at the election. On appeal, the Supreme Court of Victoria found that the reason given by Mr Little was not valid and sufficient:
In my opinion, the respondent does not, by his possession of a genuinely held inability to form a preference,… thereby gain immunity from the sanction imposed by [the Act] if he fails to vote. The voting is certainly preferential… but it does not follow that a subjective incapacity on the part of the voter to determine that he prefers one candidate in an election to another affords a valid and sufficient reason for failing to vote.
45. In Faderson v Bridger (1971) 126 CLR 271, the High Court on appeal, where all three Justices affirmed the principles laid down in Judd v McKeon. Chief Justice Barwick stated:
… However much the elector may say he has no personal preference for any candidate, that none of them will suit him, he is not asked that question nor required to express by his vote that opinion. He is asked to express a preference amongst those who are available for election. That is to state which of them, if he must have one or more of them as Parliamentary representatives, as he must, to mark down his vote in an order of preference of them.
46. In Krosch v Springell; ex parte Krosch  QdR 107, the Magistrate found that Mr Springell had a valid and sufficient reason for not voting in a Queensland State election. At the polling place Mr Springell had handed to the presiding officer the following note:
I do not consider that any of the candidates standing for the seat of Rockhampton are worthy of my vote. This also applies to the parties they represent. The main problems of the day, such as the environmental crisis, the population explosion and the economic problems associated with these are non-issues. Instead we have been treated to mudslinging, noise pollution, tree desecration and polemical discussions of trivia.
In Krosch v Springell the Supreme Court of Queensland overturned the Magistrate’s decision on appeal, and affirmed the High Court decision in Judd v McKeon.
47. In O’Brien v Warden (1981) 37 ACTR 13, the Magistrate was told by Mr Warden that he had arrived in Canberra a little over a week before the Territory election for the ACT House of Assembly, and at the time he knew nothing about any of the 24 candidates. He said that there was not enough time before the election to find out sufficient information to enable him to decide on an order of preference that, in accordance with the law, he was required to show by his marking of the ballot paper. The Magistrate held that he had shown a valid and sufficient reason for failing to vote and dismissed the charge of failure to vote without a valid and sufficient reason.
Chief Justice Blackburn of the ACT Supreme Court overturned the Magistrate’s decision on appeal, affirming the principles in Judd v McKeon, and concluded as follows:
In my opinion the true basis of this case is that the absence, from the mind of the elector, of any preference for any candidate over any other is not a valid and sufficient reason for failing to vote…
In Lubcke v Little… , it seems to me, if I may say so, that Crockett J took the same view as I do of what Judd v McKeon actually decided. The fine shade of difference between the facts of the two cases is that in Judd v McKeon the elector’s absence of preference was the result of his equal disapproval of all the candidates, whereas in Lubcke v Little the report only shows that in fact the elector had no preference, without showing the reason why he had no preference; for all that the reader can tell, he may have thought all the candidates equally desirable as members of Parliament. At any rate, Crockett J came to the same conclusion, namely that the elector had no valid or sufficient excuse.
Returning to the reasons advanced by Mr Warden, Chief Justice Blackburn went on:
… In my opinion the Act does not oblige the elector to make a true expression of his preference among the candidates. On one view he must make an expression of apparent preference; on another he need not express himself intelligibly or at all.
… The decided cases prevent me from thinking that the legislature intended to spare the consciences of those to whom to vote insincerely is distasteful. A fortiori, there can be no reason to think that it is intended to spare from the inconvenience of a visit to the polling booth those for whom to comply with the Act is a meaningless formality, objectionable only because it is a waste of time.
It seems, therefore, that… the fact that he has – for whatever reason – no preference to express, is not a rational excuse for failing to perform it, and therefore not a ‘valid and sufficient reason’ within the meaning of that phrase in… the Act.
48. The AEC is able to assist organisations and individuals by informing them of the legislative requirements in relation to compulsory voting at federal elections; however the AEC cannot provide legal advice on compulsory voting.
49. Anyone who is in doubt about the interpretation of the law in particular circumstances should consult the exact provisions of the Act and seek their own legal advice.
50. Anyone who believes there is a case for legislative amendment to the Act should lodge a submission to the Joint Standing Committee on Electoral Matters at Parliament House.
51. Court decisions dealing with the subject of compulsory voting may be accessed through public libraries or the Australasian Legal Information Institute website.
The Commonwealth Electoral Act 1918 can be accessed through any major public library, or the ComLaw website.
Further information in relation to compliance with the Act is set out in the AEC's Electoral Backgrounder publications.
The AEC has available a number of publications for people interested in the electoral process including:
Members of the media are asked to contact the Media Liaison. For enquiries call 13 23 26.