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 βvalid and sufficient reasonβ for failing to do so.
Man abstains from voting intentionally and refuses to pay fine
TheΒ non-voterΒ replied to the penalty notice by letter,Β informing the commission that his failure to vote wasΒ intentional. HeΒ alsoΒ providedΒ severalΒ reasons for not voting, including that:Β Β
- Australia prides itself on being a democracyΒ andΒ that forcingΒ him to voteΒ was inconsistent with his democratic right toΒ choose.Β Β
- NoneΒ of the candidates were worth voting for,Β as they were either too radical,Β could not form a stable government or didΒ notΒ make it clear what they stoodΒ for.Β
- He wasΒ lessΒ than impressedΒ by theΒ behaviourΒ ofΒ politicians andΒ sawΒ abstaining from votingΒ asΒ a tool toΒ encourage politicians toΒ behave better.Β Β
- He hadΒ a genuinely held moral code that required him not to vote.Β
HeΒ refused to pay the penalty,Β andΒ the Commonwealth Director of Public ProsecutionsΒ chargedΒ him,Β bringing the matterΒ beforeΒ theΒ court.Β Β
TheΒ magistrateΒ who heard the matterΒ determined that theΒ manβs reasons were validΒ andΒ dismissed the charges againstΒ him. The DPPΒ had 28 daysΒ toΒ appealΒ the decisionΒ butΒ chose notΒ to do so.Β
Subsequent media coverage of the decisionΒ promptedΒ the DPP to reassess the matter and,Β threeΒ months after theΒ initialΒ decision, itΒ filed an appeal.Β
It was for the Supreme CourtΒ of NSWΒ to determine whether leave should be granted toΒ the DPP toΒ bring the appeal out of time and, if granted,Β whether the man had contravened theΒ Commonwealth Electoral Act 1918.Β
Expert commentary on the court's decision
Local Court finds in non-voterβs favour and DPP appeals to Supreme Court
When Adam Easton failed to vote in the 2016 federal election,Β theΒ DPPΒ chargedΒ himΒ underΒ section 245Β of theΒ Commonwealth Electoral Act.Β TheΒ NSWΒ Local Court dismissed the chargesΒ against Mr Easton.Β
InΒ Commonwealth Director of Public Prosecutions v EastonΒ [2018] NSWSC 1516,Β the DPP appealed the Local Courtβs decision to the Supreme Court of NSW.Β Β
TheΒ SupremeΒ Court concluded that adherence by aΒ registeredΒ voter to aΒ moral butΒ non-religious belief system that requires himΒ to abstain from votingΒ is not a valid and sufficient reason for failingΒ to vote.Β Β
Accordingly, theΒ Supreme CourtΒ found in favour of the DPP,Β granted the appealΒ and referredΒ the matterΒ back to the Local Court for a re-hearing.
Voting compulsory in Australia without valid and sufficient reason for not voting
Since 1924,Β it has beenΒ compulsory for all eligible Australian citizensβ―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.Β However, sectionΒ 245(15B) provides that subsection (15) does not apply if the electorβ―has a βvalid and sufficient reasonβ for the failure.
In 1990, sectionΒ 245(14) of the ActΒ was introduced.Β It statesΒ thatΒ βwithout 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 voteβ.
Local Court rules reason for not voting is valid and sufficient
The NSW Local CourtΒ found in favour of Mr Easton, concluding that he had a valid and sufficient reason for not voting.Β
TheΒ magistrateΒ noted thatΒ compellingΒ himΒ toΒ vote for someoneΒ that heΒ did notΒ want toΒ vote forΒ wentΒ to the heart ofΒ theΒ agnosticΒ but nevertheless inherent and important moral framework by whichΒ heΒ lived.
TheΒ magistrateΒ observed thatΒ Mr EastonΒ hadΒ a deep,Β philosophical objection.Β HeΒ had aΒ genuinely held moral codeΒ that requiredΒ him not to voteΒ andΒ voting would breach a truly held conscientious life viewpoint.Β HeΒ hadΒ a devout (but not religious) objection to voting.
TheΒ magistrateΒ concluded that itΒ βwould be simply nonsensicalβ―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 notβ.
Supreme Court grants DPP extension of time to appeal Local Courtβs ruling
TheΒ magistrateΒ in the Local CourtΒ delivered his decision on 26 September 2017.Β
The DPPΒ decidedΒ not to appeal on the basis that itΒ was aΒ Local CourtΒ decision thatΒ had no precedential value.Β However, three monthsΒ laterΒ itΒ lodged an appeal,Β now believingΒ thatΒ it was in the public interest to do so.
TheΒ Supreme Court RulesΒ 1970Β (NSW)Β require that an appeal to this decision had to be made within 28 days,Β but that theΒ court could extend this time frameΒ at any time.
Because the DPPβsΒ appeal was madeΒ threeΒ months after the Local Courtβs decision,Β the Supreme Court had to considerΒ whether an extension of time should be granted.
Media attention to case provides basis for allowing appeal
TheΒ court noted that afterΒ theΒ magistrateβs decision was published on 20 December 2018,Β a number of articles began to appearΒ on the internet describing the decision as βspectacularlyΒ innovativeβ, andΒ βground-breakingβ and opining that it βmay mean an end to compulsory voting in Australian Federal electionsβ.
TheΒ courtΒ pointed outΒ that theΒ reporting was inaccurate, particularly the suggestion that the decision signalled the end of compulsory voting in Australia.Β
TheΒ courtΒ did not think thatΒ it would be immediately apparent to any non-legally qualified person that the decision hadΒ no precedential value.Β The inaccurate reporting had the capacity to mislead voters.Β AΒ person mightΒ incorrectly conclude that they couldΒ abstain from voting on the basis of a conscientious objection.
TheΒ courtΒ thereforeΒ 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 wasΒ notΒ the first to test Australiaβs compulsory voting laws, andΒ in its judgementΒ theΒ court reviewedΒ caselaw madeΒ prior to the introduction of sectionΒ 245(14).Β
In the case ofΒ Judd vΒ McKeonΒ (1926) 38 CLR 380,Β aΒ member of the SocialistΒ LaborΒ Party declined to vote because his party stood for ending capitalism,Β and its membersΒ wereΒ prohibited from voting for supporters of capitalism.Β The voter in that caseΒ argued that political parties perpetuate capitalism, exploit the working class and create war and unemployment.Β
TheΒ High Court held thatΒ the voterβsΒ reasons for not voting amounted to βno more than an expression of an objection to the social order of the community in which he livesβ and that such an objection is not a valid and sufficient reason for refusing toΒ vote.Β
Another case concerned a voter who told theΒ court that he believed that βChrist is the truthβ 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 voterβsΒ reasons for abstaining, theΒ court observed that the electorβs objection to compulsion was simply an objection to being obliged to obey the law laid down byΒ parliament.Β ThisΒ was not a valid or sufficientΒ reasonΒ for notΒ obeyingΒ that law.Β
On the other hand,Β the courts have heldΒ that valid and sufficient reasons for not voting includeΒ physical obstruction, sickness, natural events, accident, or a competing public dutyΒ –Β for example,Β 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,Β section 245(15)(B) has been judicially considered on a number of occasions, this case was the first time that section 245(14) wasΒ considered by a court.Β
In considering the operation of section 245(14), theΒ court concluded that it was βnot satisfied that by enacting s 245(14) of the Act the Parliament intended to depart from what the High Court held inΒ Judd v McKeonβΒ and the other casesΒ summarisedΒ by theΒ court.Β Such an amendment would requireΒ βvery clear statutory languageβ.Β
TheΒ courtΒ rejectedΒ Mr EastonβsΒ argument that theΒ βreligious dutyβΒ exceptionΒ in sectionΒ 245(14)Β extended theΒ operation of the ActΒ toΒ allow other subjectively based non-religious objections to voting.Β If it was intended byΒ parliament to allow any non-political conscientious objection, the question arises as to why the text of the Act would be limited to a βreligious dutyβ in the first place.Β
TheΒ court also found it difficult to see howΒ compulsory voting couldΒ continue toΒ be enforcedΒ if aΒ non-voter could validly assert that a moral framework led them to believe that it was their duty to abstain from voting.Β Allowing such a defence would βchallenge the fundamental obligation at the heart of compulsory votingβ.
This case raised some interestingΒ questionsΒ regarding the operation of compulsory voting laws.Β ItΒ is clearΒ that a genuinely held religious objection constitutes a validΒ exception.Β AΒ genuinely held philosophical objection does not.Β Whether the law should operate thisΒ way isΒ anotherΒ question.
For more information please see Should 16-year-olds be allowed to vote?