Electoral Backgrounder: Compulsory voting

Introduction

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. 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).
2. In 1912, the former Electoral Act was amended to make enrolment compulsory. In 1924, to increase voter turnout and reduce party campaign expenditure, the Electoral 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 published in 1983.
3. The Electoral Act and the Referendum Act are available on the Australian Government’s Federal Register of Legislation website. The words ‘voter’ and ‘elector’ are used interchangeably throughout this publication.
4. This Backgrounder provides introductory information in relation to compulsory voting and its contents are a guide only. The interpretation of the law presented here is consistent with advice provided to the AEC by its legal advisers, but the application of the law in any particular case is a matter for the courts. Readers should not rely on the information in this document as a statement of how the law will apply in any particular case. If you are in doubt about the interpretation of the law in particular circumstances, you should seek your own independent legal advice.
5.  The AEC itself does not have a 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.
6. Penalties for criminal offences related to compulsory enrolment and voting are expressed in terms of ‘penalty units.’  The value of a penalty unit automatically increases in line with the consumer price index in accordance with section 4AA of the Crimes Act 1914 (Cth).

Voting is compulsory

7. Failure to vote in an election is an offence under subsection 245(15) of the Electoral Act unless the elector has a valid and sufficient reason for that failure (see subsection 245(15B) of the Electoral Act.
8. Similarly, subsection 45(14) of the Referendum Act provides an offence provision for electors who fail to vote at a referendum.

Enrolment under the Electoral Act

9. An ‘elector’ is someone whose name appears on the electoral Roll. The Electoral Act requires Australian citizens aged 18 years and over to be enrolled. The Electoral 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.
10. These enrolment and voting requirements are subject to the following qualifications:
• Australian citizens who have turned 16, but are under 18 years of age, are able to make a claim to enrol before they turn 18 (see sections 93 and 100 of the Electoral Act). When enrolling for the first time they will need to provide evidence of identity (such as a driver’s licence or passport).
• An elector whose name is on the Roll and has not attained 18 years of age on the date fixed for the polling in an election is not entitled to vote (see subsection 93(3) of the Electoral Act).
• Persons who have a cognitive impairment and who are incapable of understanding the nature and significance of enrolment and voting, and persons who have been convicted of treason or treachery are not entitled to enrol or to vote (see section 93 of the Electoral Act).
• Persons serving a sentence of imprisonment of three years or longer are not entitled to vote (see subsection 93(8AA) of the Electoral Act).
• Antarctic electors, eligible overseas electors and itinerant electors are entitled to vote, however voting is not compulsory for these cohorts of electors (see subsection 245(17) of the Electoral Act and subsection 45(16) of the Referendum Act).
11.  It is an offence to vote more than once in the same election or referendum (see subsection 339(1A) of the Electoral Act; and subsection 130(1A) of the Referendum Act and the AEC’s Electoral Backgrounder: Enrolment fraud and multiple voting).
12. Electors may fulfil their duty to vote by casting their vote in one of several ways.

Ordinary vote

13. Section 233 of the Electoral Act and section 35 of the Referendum Act require an elector, when attending a polling place to vote on polling day and upon 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 deposit it/them in the relevant ballot box.
14. 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 section 234A of the Electoral Act and section 36A of the Referendum Act).
15. Section 234 of the Electoral Act and section 36 of the Referendum Act, allow assistance to be given to voters, who satisfy the presiding officer, that they are so visually impaired, physically incapacitated or illiterate that they are unable to vote without assistance.

Pre-poll or postal vote

16. schedule 2 to the Electoral Act and schedule 3 of the Referendum Act provide the grounds of application for pre-poll or postal vote. In general, an elector may cast either a pre-poll or postal vote if on polling day the elector:
• Is a person (or is caring for a person) with a disability and is unable to attend a polling booth on polling day
• Is outside the State or Territory for which the person is enrolled
• is outside the Division for which they are enrolled to vote
• is more than 8 kilometres from a polling place
• is travelling under conditions that will prevent the person attending a polling booth in the State or Territory for which the person is enrolled
• is unable to leave their workplace to vote
• is seriously ill, infirm or expected shortly to give birth (or caring for someone who is)
• is a patient in hospital and cannot vote at the hospital
• has religious beliefs which prevent them from attending a polling place
• is in prison serving a sentence of less than three years or is otherwise detained
• is a silent elector
• has a reasonable fear for their safety.
17. An elector who has been accepted as a postal voter will be sent ballot paper/s for the division for which that elector is enrolled along with a reply paid envelope.
18. Electors can cast a pre-poll ordinary vote by 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.
19. Electors attending a pre-poll voting centre which has not been declared a polling place for that division under subsection 200BA (1A) of the Electoral Act, or section 73AA of the Referendum Act, will be required to complete a declaration vote.
20. A declaration vote requires the elector to provide their marked 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.

Provisional vote

21. Section 235 of the Electoral Act and 37 of the Referendum Act, provide that a person may cast a provisional (declaration) vote where:
• the person’s name cannot be found on the certified list of voters for the Division for which the person claims to vote
• the person’s name is on the certified list but not the address
• the person’s name on the certified list is already marked, indicating that the voter has already voted
• the person’s identity cannot be confirmed after additional questions have been asked, or
• the person is only provisionally enrolled.
22. Where a person falls into one of these categories, they may cast a provisional vote by first signing a declaration on the declaration envelope, in the presence of a polling official, who will also sign and date the declaration envelope, after which the person will be issued with ballot papers.
23. Provisional voters may need to provide evidence of identity (such as a driver’s licence or passport). This may occur if during the preliminary scrutiny of declaration votes there is doubt that a signature that purports to be the voters signature, is the electors signature, and the signature on the declaration envelope does not match the elector’s enrolment record (see schedule 3 to the Electoral Act and schedule 4 of the Referendum Act).

Absent vote

24. Electors are able to cast an absent (declaration) vote for a general election or referendum if, on polling day they:
• attend a polling place, or voting centre within the state or territory they are enrolled, or
• attend an interstate voting centre if they are outside the state or territory in which they are enrolled.

25. The AEC website provides further information on Voting Options

Non-voters

26. An elector may be guilty of an offence under section 245 of the Electoral Act, or section 45 of the Referendum Act, if the elector fails to vote at an election or a referendum, as the case may be, without a valid and sufficient reason for that failure.
27. Under subsection 245(2) of the Electoral Act and subsection 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. An elector who has been identified as an apparent non-voter will be included on this list.
28. This list is then provided to each Divisional Returning Officer (DRO) so that, within three months of the election or referendum, a penalty notice may be sent by post to every elector whose name and address appears on the list of apparent non-voters (see subsection 245(3) of the Electoral Act and subsection 45(2) of the Referendum Act).
29. Under subsection 245(4) of the Electoral Act and subsection 45(4) of the Referendum Act, the DRO is not required to send a penalty notice to electors who:
• appear to have failed to vote but who have died
• were absent from Australia on 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.
30. The penalty notice sent to an elector advises that they appear 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 they do not wish to have the apparent failure to vote dealt with by a court, the elector may, within the prescribed time either:
• advise the DRO of the particulars of the circumstances of having voted;
• advise the DRO of a valid and sufficient reason for the failure; or
• pay to the DRO an administrative penalty of $20.
31. Under subsection 245(11) of the Electoral Act, and subsection 45(11) of the Referendum Act, if an elector is unable to respond to correspondence from the DRO because of absence from their 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.
32. If no reply is received to the first penalty notice within the prescribed time, the DRO must send a second penalty notice in accordance with subsection 245(6) of the Electoral Act, or subsection 45(6) of the Referendum Act.
33. If the elector pays to the DRO the $20 administrative penalty for failing to vote within the prescribed time, then no further action is taken by the AEC, in accordance with subsection 245(10) of the Electoral Act and subsection 45(10) of the Referendum Act.
34. Where an elector responds to a penalty notice within the prescribed time and provides a reason for not voting, the DRO must be satisfied that the reason(s) provided are valid and sufficient in accordance with subsection 245(5) of the Electoral Act or subsection 45(5) of the Referendum Act. If the DRO is not satisfied that the reason provided is valid and sufficient, then the DRO must, in accordance with subsection 245(9) of the Electoral Act or subsection 45(9) of the Referendum Act, send a notice advising the elector that:

1. the DRO is not satisfied that the elector voted or the reason given for the failure to vote is not a valid and sufficient reason, and
2. if the elector does not wish to have the matter dealt with by a court, the elector may pay an administrative penalty of $20.

35. Where an elector fails to pay the administrative penalty of $20 or fails to satisfy the DRO that they had a valid and sufficient reason for not voting, an elector may be prosecuted in accordance with subsection 245(15) of the Electoral Act or subsection 45(15) of the Referendum Act.
36. If a person is found guilty of the offence of failing to vote in an election, a court may impose a penalty of 1 penalty unit. The court may also order the elector to pay an amount for costs (depending on the jurisdiction where the prosecution is brought).
37. Where an elector who has been convicted for a failure to vote and fined by a court, fails to pay the fine, the court may take further action.  This will 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 then to order a jail sentence for fine defaulters. However, this is a matter for the courts and not for the AEC.
38. It is an offence to knowingly make a false or misleading statement in response to a notice issued under section 245 of the Electoral Act, and section 45 of the Referendum Act, (see subsections 245(15) and (15C) of the Electoral Act and subsections 45(14) and (14C) of the Referendum Act, respectively). If a person is found guilty of this offence, the court may impose a maximum penalty of 1 penalty unit. 

Valid and sufficient reasons

39. What constitutes a ‘valid and sufficient reason’ for failing to vote is, in the first instance, is a matter for the relevant DRO to assess on the merits on each individual case, in accordance with the law as previously interpreted by the courts. 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.
40. 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?

41. 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.

42. 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.

43. 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 [1970] 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 [1974] 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.

47. 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.
48. 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.
49. 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.

50. 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.

51. Without limiting what may constitute a ‘valid and sufficient reason’, subsection 245(14) of the Electoral Act, and section 45(13A) of the Referendum 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.”
52. In CDPP v Easton [2018] NSWSC 1516, the Supreme Court of New South Wales found that that subsection 245(14) of the Electoral Act does not allow for conscientious objection to voting.
53. In doing so, the Court observed that for subsection 245(14) of the Electoral Act to apply, the elector must hold a belief that they have a religious duty to abstain from voting, noting that “it is difficult to see how compulsory voting could continue to be enforced if an elector could rely upon a defence that a moral framework led him or her to believe that it was their duty to abstain from voting.”
54. In considering subsection 245(14) of the Electoral Act, Adams J of the Supreme Court remarked that

    …the question is not whether an elector genuinely holds the beliefs but whether such beliefs, can as a matter of law, amount to a “valid and sufficient” reasons for failing to vote. The fact that Mr Easton may have honestly held these beliefs in not the point.”

Conclusion

55. 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.
56. Anyone who is in doubt about the interpretation of the law in particular circumstances should consult the provisions of the relevant legislation and seek their own legal advice.
57. Anyone who believes there is a case for legislative amendment to the relevant legislation can lodge a submission to the Joint Standing Committee on Electoral Matters at Parliament House.
58. Court decisions dealing with the subject of compulsory voting may be accessed through public libraries or the Australasian Legal Information Institute website.

• Judd v McKeon (1926) 38 CLR 380
• Lubcke v Little [1970] VR 807
• Faderson v Bridger (1971) 126 CLR 271
• Krosch v Springell; ex parte Krosch [1974] QdR 107
• O’Brien v Warden (1981) 37 ACTR 13
• Holmdahl v AEC (No.2) [2012] SASCFC 110
• Horn v Australian Electoral Commission [2013] WASC 72
• CDPP v Easton [2018] NSWSC 1516