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 "valid and sufficient reason" for failing to do so.

Man abstains from voting intentionally and refuses to pay fine

The non-voter replied to the penalty notice by letter, informing the commission that his failure to vote was intentional. He also provided several reasons for not voting, including that:

  • Australia prides itself on being a democracy and that forcing him to vote was inconsistent with his democratic right to choose.
  • None of the candidates were worth voting for, as they were either too radical, could not form a stable government or did not make it clear what they stood for.
  • He was less than impressed by the behaviour of politicians and saw abstaining from voting as a tool to encourage politicians to behave better.
  • He had a genuinely held moral code that required him not to vote.

He refused to pay the penalty, and the Commonwealth Director of Public Prosecutions charged him, bringing the matter before the court.

The magistrate who heard the matter determined that the man's reasons were valid and dismissed the charges against him. The DPP had 28 days to appeal the decision but chose not to do so.

Subsequent media coverage of the decision prompted the DPP to reassess the matter and, three months after the initial decision, it filed an appeal.

It was for the Supreme Court of NSW to determine whether leave should be granted to the DPP to bring the appeal out of time and, if granted, whether the man had contravened the Commonwealth Electoral Act 1918.

case a - The case for the non-voter

case b - The case for the DPP
  • 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 "religious 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.
  • 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 voting?constitutes a valid and sufficient reason for failing to vote.

So, which case won?

Cast your judgment below to find out

Christopher Morris
Debt recovery
Stacks Collins Thompson

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