Australia: The offence of failing to vote in an Australian federal election

Unless you have been living under a rock over the past several weeks, you'll know that the Federal Election 2022 is being held nationally tomorrow.  

The offence of failing to vote in an Australian federal election

Voting is compulsory for all Australians over the age of 18 years.

Under section 245 of the Electoral Act 1918 (Cth), anyone who fails to vote and does not have a legitimate reason for that failure will face a fine of $20, or $50 for those who previously committed the offence.

If left unpaid, these fines can attract fees and penalties– which can increase to more than $200. 

Anyone who fails to vote and fails to pay the fine can also be issued with a Court Attendance Notice (CAN), meaning he or she will have to attend court.

Compulsory voting

‘Compulsory voting' is very different from ‘elective voting' – the latter existing in countries, such as the United States, where you can choose to exercise your democratic right to vote or not.

Enrolling to vote in Australian federal elections was made compulsory in 1912, and voting at federal elections was made compulsory in 1924, for both men and women. 

Australia passed laws allowing women to vote in the federal election in1902, making us the second nation in the world to achieve this. 

Elections and the role of the Australian Electoral Commission (AEC)

Voting is governed by the Electoral Act 1918. 

The Australian Electoral Commission is the federal government body charged with ensuring that election processes are run fairly and in accordance with the law. 

The AEC's jurisdiction includes not only the organisaiton and management of enrolments and voting on election day, but how political parties and independents promote their messages to the Australian public too. 

By law, any Australian citizen over the age of 18 years is required to enroll to vote, and there is a provision allowing those who are 16 and 17 years old – but cannot actually cast a vote at an election day ballot until they turn 18.

Ineligibility to vote

Australian citizens that are ineligible to vote include those who are: 

• Of unsound mind, and determined to be incapable of understanding the reason for voting and its significance to the democratic process, 
• Prison inmates serving a sentence of five years or longer, and
• Convicted of treason and not pardoned. 

Voting more than once 

Casting more than one vote is a form of ‘electoral fraud'. 

Under section 339 of the Electoral Act, multiple voting is punishable by up to 6 months' imprisonment.

The section provides as follows:

A person shall not:

• impersonate any person with the intention of securing a ballot paper to which the impersonator is not entitled; or
• impersonate any person with the intention of voting in that other person's name; or
• fraudulently do an act that results in the destruction or defacement of any nomination or ballot paper; or
• fraudulently put any ballot paper or other paper into the ballot box; or
• fraudulently take any ballot paper out of any polling place or counting centre; or
• supply ballot papers without authority; or
• do an act that results in the unlawful destruction of, taking of, opening of, or interference with, ballot boxes or ballot papers.

Penalty: Imprisonment for 6 months.

1A. A person is guilty of an offence if the person votes more than once in the same election.

Penalty: 10 penalty units.

Note: the value of a Commonwealth penalty unit is currently set at $222.

1B. An offence against subsection (1A) is an offence of strict liability.

1C. A person is guilty of an offence if the person intentionally votes more than once in the same election.

Penalty: 60 penalty units or imprisonment for 12 months, or both.

After the 2016 federal election, the Australian Electoral Commission detected more than 18,000 (6760 of them in New South Wales alone) who had been recorded in the system as voting more than once. 

At the time, the AEC conceded that the system may have potentially recorded an error, but those people detected were contacted anyway. 

Electoral fraud can also take the form of voters enrolling more than once, or using a false name and address to enrol to vote.

Under the Criminal Code Act 1995. Sections 136 and 137 state that it is an offence to give false or misleading documents or information to a Commonwealth Officer in purported compliance with a Commonwealth law. 

The penalty is 12 months imprisonment.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.