Case

Which case won?

casea
The case for the non-voter
  • The DPP failed to meet the deadline to file an appeal, so the court should not hear the case.
  • If the court does hear the case, it should rule in my favour. A belief that one has a β€œreligious duty” to abstain from voting is specifically stated in the Act to be a valid and sufficient reason to abstain. I have earnestly searched for religion in my life and have found my religious faith in the principles of freedom. I am duty bound by this faith to abstain from voting.
  • Section 116 of the Australian Constitution protects freedom of religion and extends to encompass minority views. When I abstained from voting due to my agnostic and well-developed moral faith, I should have been afforded the same protections as someone who adheres to a more mainstream religion.
  • The protection afforded by the law only requires that a person believes they have a religious duty to abstain from voting. It is irrelevant how others might view that belief. Since I have a sincere belief in freedom as my religion and my belief dictates that I must not vote, I am protected by the law.
caseb
The case for the DPP
  • The court should grant an extension of time to hear this case, since it is in the public interest to ensure that there is no ambiguity in how compulsory voting laws operate.
  • Although the law recognises religious duty as a valid and reasonable excuse for not voting, the religion in question still has to be a recognised religion. The voter’s beliefs lack even a tenuous connection to any recognised religion.
  • The voter’s beliefs are properly characterised as a conscientious objection to compulsory voting. Neither the text of the compulsory voting legislation, nor the relevant case law interpreting it allows the court to find that a non-religious, conscientious objection to votingβ€―constitutes a valid and sufficient reason for failing to vote.

So, which case won?

Cast your judgment below to find out
Case A Case B

Case B won. You were right!

How people voted
case a65%
case b35%

Expert commentary on the court's decision

β€œUnder the law as it stands, it is compulsory to vote unless you have a β€˜valid and sufficient reason’ not to. This extends to a belief that a religious duty requires a voter to abstain from voting. It also includes physical obstruction, sickness, natural events, accident, or a competing public duty. It does not extend to a philosophical, moral or conscientious objection to voting.”
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,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 Court’s 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 β€œvalid and sufficient reason” for the failure.

In 1990, sectionΒ 245(14) of the ActΒ was introduced.Β It statesΒ thatΒ β€œwithout 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 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 β€œwould 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 not”.

Supreme Court grants DPP extension of time to appeal Local Court’s 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 DPP’sΒ appeal was madeΒ threeΒ months after the Local Court’s 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 magistrate’s decision was published on 20 December 2018,Β a number of articles began to appearΒ on the internet describing the decision as β€œspectacularlyΒ innovative”, andΒ β€œground-breaking” and opining that it β€œmay mean an end to compulsory voting in Australian Federal elections”.

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 Australia’s 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 voter’sΒ reasons for not voting amounted to β€œno 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 toΒ vote.Β 

Another case concerned a voter who told theΒ court that he believed that β€œChrist 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’sΒ reasons for abstaining, theΒ court observed that the elector’s 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 β€œnot satisfied that by enacting s 245(14) of the Act the Parliament intended to depart from what the High Court held inΒ Judd v McKeon” and the other casesΒ summarisedΒ by theΒ court.Β Such an amendment would requireΒ β€œvery clear statutory language”.Β 

TheΒ courtΒ rejectedΒ Mr Easton’sΒ argument that theΒ β€œreligious duty” 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 β€œreligious duty” 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 β€œchallenge the fundamental obligation at the heart of compulsory voting”.

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?

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.

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