Abstract
This chapter explores judicial norms and rhetoric around compulsory voting in Australia. These legal principles and tropes are derived from two classes of cases. The first are decisions, from courts elevated in the hierarchy, about why compulsory voting is constitutionally legitimate. These decisions have survived a turn from respect for parliamentary sovereignty over electoral law towards implied political rights and freedoms. The second class of cases involve courts, both low and high in the judicial pecking order, reflecting on what amounts to a ‘valid and sufficient reason’ for not turning out to vote. Ultimately, the courts have been remarkably supportive of compulsion, albeit with a bleak, rather than positive, vision of the role of compulsion in electoral democracy. In rhetorical terms, Australian courts have treated electoral compulsion as akin to military conscription or to choosing the manner of one’s death.
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Notes
- 1.
This was quickly consolidated into the Elections Act 1915 (Qld) Section 63.
- 2.
The current rule is in Commonwealth Electoral Act 1918 (Cth) Section 245. For a time, Indigenous Australians were not required to enrol, nor were Norfolk Islanders required to vote.
- 3.
The South Australian government persisted (also unsuccessfully) with an Electoral (Duty to Vote) Amendment Bill of 1995–1996 and again in 1998. Brett (2019, chapter 15) chronicles how, in the 1990s, conservative majorities on the Commonwealth Parliament’s electoral matters committee (or JSCEM) recommended an inquiry into and even repeal of compulsory voting. Neither recommendation however was adopted by the then conservative government. On this, and the unsuccessful push within the Liberal Party generally to return to voluntary voting, see Strangio, this volume.
- 4.
Until 2009 non-electors could not be compelled to enrol; but once enrolled they had to update their details.
- 5.
See Constitution Act 1902 (NSW) Section 11B (‘shall’), Electoral Act 2002 (Vic) Section 87 and Electoral Act 1985 (Tas) (‘must’), Electoral Act 1992 (Qld) Section 186 (‘must not fail’), Electoral Act 2002 (ACT) Section 129 (‘shall not … fail’). Electoral Act 1907 (WA) Section 106 and Electoral Act 1985 (SA) Section 85 still employ the language of ‘duty’.
- 6.
- 7.
Compare Australian Constitution Sections 9 and 31 (Parliament may ‘make laws prescribing the method of choosing Senators’ or ‘relating to elections … of the House of Representatives’) with Sections 7 and 24 (each House to be ‘chosen by the people’). Electoral ‘method’ can cover a wide array of electoral means and issues: Day v Australian Electoral Officer (SA) (2016) 261 Commonwealth Law Reports 1 at 20–22 (High Court of Australia).
- 8.
In the tale, the table is turned on the genie, as the fisherman he was tormenting manages to bottle the genie and threaten to make the genie choose the manner of his own disposal.
- 9.
Traceable in the British common law to the first Statute of Westminster of 1275, chapter 5, albeit in a provision directed at crude intrusions into electoral liberty (‘there shall be no disturbance of the free elections’).
- 10.
Something that was a particular problem prior to the introduction of party labels on ballots in 1984 (Orr 2002).
- 11.
The author comes down on the liberal side that ‘active participation in public life … should be encouraged in ways other than unconstitutional compulsion’ (Gray 2012, p. 608).
- 12.
A point central to Attorney-General (Cth); ex rel McKinlay v Commonwealth (1975) 135 Commonwealth Law Reports 1 (High Court of Australia).
- 13.
See Chief Justice Robert French on ‘irreversible evolution’, in the enrolment cut-off case Rowe v Electoral Commissioner (2010) 243 Commonwealth Law Reports 1 at 18–9 (High Court of Australia). Such judicial endorsement of established practice can become a constitutional ratchet, inhibiting the ability of parliaments to undo established rules of democracy (Orr 2011).
- 14.
Twomey does not favour such constitutional ratcheting.
- 15.
Compare Lachlan Montgomery Umbers (this volume) arguing that in some circumstances members of dispossessed groups have a moral right to boycott elections that deserves protection.
- 16.
The scene is drawn from Mark 6: 14–29 (Herod’s wife Herodias had him execute John, but Herod was already antagonistic to John for opposing his marriage).
- 17.
Overturned on appeal, see Commonwealth Director of Public Prosecutions v Easton [2018] NSWSC 1516 (New South Wales Supreme Court).
- 18.
There the judge sympathised with the commission’s concern that ignorance of the fact of an election could become ‘an excuse that every man will plead and no man can tell how to refute him’. But the judge still excused the elector, because the ignorance was genuine and understandable (i.e. ‘an honest and reasonable mistake of fact’), given it was an out-of-cycle, local government poll and not a regular or parliamentary election.
- 19.
Drawing on that approach, a jurist argued it is ‘discriminatory’ to fine non-voters whilst waving through similarly motivated informal voters (Anon 1985, 131).
- 20.
Since in Australia public funding is paid for every valid ‘1’ vote received.
- 21.
For example, New South Wales’ iVote system accepts incomplete ballots, whilst warning the elector the ballot will be treated as a blank (NSW Electoral Commission 2019, item 6.6). But there is no facility to protest more explicitly by defacing the ballot.
- 22.
This does not mean an informal ballot is a ‘vote’ for the purpose of determining the majority needed to win an election or referendum (Orr 2019, pp. 297–298).
- 23.
The Western Australian Supreme Court, in Blakeney v Coates [1982] WASC 262, read Judd’s case as excluding intellectual or spiritual excuses.
- 24.
This applied even though Mr. Ninnes was a former Jehovah’s Witness.
- 25.
See Commonwealth Electoral Act 1918 (Cth) Sections 101(6AB) and 245(15A) (compulsory enrolment an ‘absolute’ liability matter, and compulsory voting a ‘strict’ liability matter, respectively).
- 26.
New South Wales and (until 2016) Queensland both have long experience of optional preferential voting. In New South Wales it is constitutionally entrenched. The Commonwealth, on the other hand, has stuck with full preferential voting for the House of Representatives for 100 years.
Bibliography
AEC (Australian Electoral Commission). (2017). Annual report 2016–17. Canberra: Australian Electoral Commission.
Anon. (1985). ‘Compulsory’ voting under the Commonwealth Electoral Act 1918. Australian Law Journal, 59(3), 130–131.
Attorney-General (Cth); ex rel McKinlay v Commonwealth. (1975). 135 Commonwealth Law Reports 1 (High Court of Australia).
Australian Constitution. (1900). file:///C:/Users/mbon0008/Downloads/2012_Australian_Constitution.pdf. Accessed 22 July 2020.
Australian Electoral Commission v Van Moorst. (1987). VicSC 270 (Victorian Supreme Court).
Bellamy, R. (2007). Political constitutionalism: A republican defence of the constitutionality of democracy. Cambridge: Cambridge University Press.
Blakeney v Coates. (1982). WASC 262.
Brennan, J., & Hill, L. (2014). Compulsory voting: For and against. New York: Cambridge University Press.
Brett, J. (2019). From secret ballot to democracy sausage: How Australia got compulsory voting. Melbourne: Text Publishing.
Commonwealth Director of Public Prosecutions v Easton. (2017). NSWLC 19 (New South Wales Local Court).
Commonwealth Director of Public Prosecutions v Easton. (2018). NSWSC 1516 (New South Wales Supreme Court).
Commonwealth Electoral Act 1918 (Cth).
Commonwealth Electoral Act 1924 (Cth).
Constitution Act 1902 (NSW).
Day v Australian Electoral Officer (SA). (2016). 261 Commonwealth Law Reports 1 (High Court of Australia).
Dixon, O. (1965). Jesting Pilate and other papers and addresses (collected by S. Woinarski). Melbourne: Law Book Co.
Douglass v Ninnes. (1976). South Australian State Reports 377 (South Australian Supreme Court).
Elections Act 1915 (Qld).
Elections Act Amendment Act 1914 (Qld).
Electoral Act 1907 (WA).
Electoral Act 1985 (SA).
Electoral Act 1985 (Tas).
Electoral Act 1992 (Qld).
Electoral Act 2002 (ACT)
Electoral Act 2002 (Vic).
Electoral (Abolition of Compulsory Voting) Amendment Bill 1994 (SA).
Electoral (Duty to Vote) Amendment Bill 1995–1996 (SA).
Electoral (Duty to Vote) Amendment Bill 1998 (SA).
Electoral Regulations 2009 (SA).
Faderson v Bridger. (1971). 126 Commonwealth Law Reports 271 (High Court of Australia).
Gow, N. (1971). The introduction of compulsory voting in the Australian Commonwealth. Politics, 6(2), 201–210.
Gray, A. (2012). The constitutionality of Australia’s compulsory voting system. Australian Journal of Politics and History, 58(4), 591–608.
Hill, L. (2016). Voting turnout, equality, liberty and representation: Epistemic versus procedural democracy. Critical Review of International Social and Political Philosophy, 19(3), 283–300.
Holmdahl v Australian Electoral Commission (No. 2). (2012). 277 Federal Law Reports 101. (South Australian Supreme Court, Full Court).
Horn v Butcher. (2010). WASCA 267 (Western Australian Court of Appeal).
Judd v McKeon. (1926). 38 Commonwealth Law Reports 380 (High Court of Australia).
John, S., & DeBats, D. (2014). Australia’s adoption of compulsory voting: Revising the narrative—Not trailblazing, uncontested or democratic. Australian Journal of Politics and History, 60(1), 1–27.
JSCEM (Joint Standing Committee on Electoral Matters). (2018). Report on conduct of the 2016 federal election and matters related thereto. Canberra: Parliament of Australia.
Keane, P. (2008, 12 June). In celebration of the Constitution. National Archives Commission, Constitution Founders Lecture Series.
Krosch v Springell. (1974). Queensland Reports 107 (Queensland Supreme Court, Full Court).
Kwok v Maresch. (2019). NSWSC 1151 (New South Wales Supreme Court).
Lane, E. (1841). (Translator/adaptor of folk legends). The thousand and one nights: Vol 1. London: Charles Knight & Co.
Langer v Commonwealth. (1996). 186 Commonwealth Law Reports 302 (High Court of Australia).
Lubcke v Little. (1970). Victorian Reports 807 (Victorian Supreme Court).
McCloy v NSW. (2015). 257 Commonwealth Law Reports 178 (High Court of Australia).
Moore, W. H. (1910). The constitution of the Commonwealth of Australia (2nd ed.). Melbourne: Charles F. Maxwell.
Muldowney v South Australia. (1996). 186 Commonwealth Law Reports 352 (High Court of Australia).
NSW Electoral Commission. (2019). Technology assisted voting: Approved procedures for NSW state elections. Sydney: NSW Electoral Commission.
O’Brien v Warden. (1981). 37 Australian Capital Territory Reports 13 (Australian Capital Territory Supreme Court).
Orr, G. (2002). Ballot order: Donkey voting in Australia. Election Law Journal, 1(4), 573–578.
Orr, G. (2011). The voting rights ratchet: Rowe v Electoral Commissioner. Public Law Review, 22(2), 83–89.
Orr, G. (2019). The law of politics: Elections, parties and money in Australia (2nd ed.). Sydney: Federation Press.
Pearce, D., & Geddes, R. S. (2014). Statutory interpretation in Australia (8th ed.). Sydney: LexisNexis Butterworths.
Pettet v Merwe. (2016). QCA 13 (Queensland Court of Appeal).
Reid, G. S., & Forrest, M. (1989). Australia’s Commonwealth Parliament 1901–1988: Ten perspectives. Melbourne: Melbourne University Press.
Roach v Electoral Commissioner. (2007). 233 Commonwealth Law Reports 162 (High Court of Australia).
Rowe v Electoral Commissioner. (2010). 243 Commonwealth Law Reports 1 (High Court of Australia).
R v Du Rhone (2017, October 20) (New South Wales Local Court, Magistrate Peter Miszalski).
South Australian Parliament, Hansard (Legislative Council) 13/5/1994.
Australian Capital Television Pty Ltd v Commonwealth. (1992). 177 Commonwealth Law Reports 106 (High Court of Australia).
Statute of Westminster of 1275.
Stone, A. (2018). Political expression. In C. Saunders & A. Stone (Eds.), The Oxford handbook of the Australian Constitution (pp. 952–978). Melbourne: Oxford University Press.
Sydney Morning Herald. (1930, November 1). ‘Dr Brissenden KC—death announced—brilliant career’, p. 1.
Thackeray, W.M., under pseudonym Pendennis, A. (2 vols., 1854–1855). The newcomes: Memoirs of a most respectable family. London: Bradbury and Evans.
Tham, J.-C. (2018). Political participation. In C. Saunders & A. Stone (Eds.), The Oxford handbook of the Australian Constitution (pp. 979–1012). Melbourne: Oxford University Press.
Twomey, A. (2013). Compulsory voting in a representative democracy: Choice, compulsion and the maximisation of participation in Australian elections. Oxford University Commonwealth Law Journal, 13(2), 283–312.
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Orr, G. (2021). ‘Choice of the Manner in Which Thou Wilt Die’: The Australian Courts on Compulsory Voting. In: Bonotti, M., Strangio, P. (eds) A Century of Compulsory Voting in Australia. Elections, Voting, Technology. Palgrave Macmillan, Singapore. https://doi.org/10.1007/978-981-33-4025-1_8
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