In Holmdahl v Australian Electoral Commission (No 2)  SASCFC 110 the Supreme Court of South Australia (Kourakis CJ, Gray and Sulan JJ) on referral has considered obligations under the Commonwealth Electoral Act 1918 (Cth).
Nils Holmdahl was unsuccessful in his appeal against conviction for failing to vote without a valid and sufficient reason in the 2010 Federal Election. He claimed that s 245(15) of the Act permitted an elector to vote by choosing not to attend a polling station.
That section provides for compulsory voting in federal elections, including -
15(1) It shall be the duty of every elector to vote at each election.
15(2) The Electoral Commissioner must, after polling day at each election, prepare for each Division a list of the names and addresses of the electors who appear to have failed to vote at the election.
15(3) Subject to subsection (4), within the period of 3 months after the polling day at each election, each DRO must: (a) send a penalty notice by post; or (b) arrange for a penalty notice to be delivered by other means;to the latest known address of each elector whose name appears on the list prepared under subsection (2).
15(4) The DRO is not required to send or deliver a penalty notice if he or she is satisfied that the elector: (a) is dead; or (b) was absent from Australia on polling day; or (c) was ineligible to vote at the election; or (d) had a valid and sufficient reason for failing to vote.
15(5) A penalty notice is a notice in an approved form notifying the elector that: (a) the elector appears to have failed to vote at the election; and (b) it is an offence to fail to vote at an election without a valid and sufficient reason for the failure; and (c) if the elector does not wish to have the apparent failure to vote dealt with by a court, the elector may, within the prescribed time: (i) if the elector did vote as required by this Act - give the DRO particulars of the circumstances of the elector's voting; or (ii) if the elector failed to vote - give the DRO a valid and sufficient reason for the failure; or (iii) pay to the DRO a penalty of $20. …
15(11) If an elector is unable, by reason of absence from his or her place of living or physical incapacity, to respond to a penalty notice or to a notice under subsection (9) within the prescribed time, any other elector who has a personal knowledge of the facts may, subject to the regulations, respond to the notice within that time, and such response is to be treated as compliance by the first-mentioned elector with the notice.
15(15) An elector is guilty of an offence if the elector fails to vote at an election. Penalty: $50.
15(15A) Strict liability applies to an offence against subsection (15).
15(15B) Subsection (15) does not apply if the elector has a valid and sufficient reason for the failure. ….
15(16) Proceedings for an offence against this section may be instituted only by the Electoral Commissioner or an officer authorised, in writing, for the purpose by the Electoral Commissioner.It was agreed by the parties that on 21 August 2010 Mr Holmdahl, the defendant, was enrolled as an elector on the Commonwealth Electoral Roll for the Division of Hindmarsh. An election was held on that date. The defendant did not attend the polling booth on that date. The defendant did not have his name marked off the electoral roll. The defendant did not receive ballot papers and deposit them into a ballot box. The defendant made a deliberate decision not to attend the polling booth on 21 August 2010.
In the first instance the magistrate had found
1) The court must consider a question of law. The Defendant challenges the validity of compulsory voting in Federal Elections. He asserts that Section 245(15) of the Act is not a valid law.
2) The basis of the Defendant’s argument is that Section 245(15) is contrary to the basic meaning of the word ‘vote’ as it forces a person to make a choice. He further asserts that Parliament can not compel persons to vote.
3) Section 245(15) makes it an offence to fail to vote at a Federal election without a valid and sufficient reason for the failure. This subsection, combined with subsection 245(1) makes voting at Federal elections compulsory.
4) Voting at Federal Elections has been compulsory since 1924. The validity of compulsory voting in Federal Elections has long been upheld by the High Court of Australia. Judd v McKeon  HCA 33; (1926) 38 CLR 380 involved the predecessor to Section 245. Subsequent Members of the High Court have cited that authority without casting any doubt on its validity.
5) As a decision of the High Court, Judd v McKeon must be followed by lower courts unless and until it is overruled by the High Court.
6) The act of voting is a process set out in Part XVI of the Act. In pursuance of his defence the Defendant sought reliance on the meaning of the word ‘vote’ as defined in various dictionaries.
7) However, the meaning of the words ‘to vote’ in regard to Federal Elections is well established by case law.
8) Section 245 of the Act furthers the requirements of Sections 7 and 24 of the Constitution that, Parliament be ‘directly chosen by the people’ by providing for compulsory voting subject to limited exceptions.
9) As the defendant has admitted that he did not vote at the 2010 Federal Election (and that he did not pay the pecuniary penalty for failing to vote) unless he can show a valid and sufficient reason for his failure, there is compelling evidence to find the charge proved.
10) It appears the Defendant’s reason for not voting is based on his assertions about the invalidity of the compulsory voting system as constituting ‘a valid and sufficient reason’ for failing to vote.
11) Nevertheless, as remarked by Hogarth J in Douglas v Ninnes (1976) 14 SASR 377 at 383:
By his notice of appeal, Holmdahl sought “[a]n order quashing the judgment the subject of the [a]ppeal”. As an alternative, the defendant sought an order referring the appeal for hearing and determination by the Full Court pursuant to section 42(2)(b) of the Magistrates Court Act and rule 280(2) of the Supreme Court Civil Rules 2006 (SA).Objection to compulsory voting of itself does not amount to a valid and sufficient reason... The principle seems to be that objection to compulsion is simply objection to being obliged to obey the law as laid down by Parliament, a contradiction of the obligation imposed by Parliament, and not a valid and sufficient reason for not observing it.
The Full Court found that the broad effect of the Act was to require all eligible persons to enrol as voters and subsequently require voters to attend and vote at an election.
It noted the comment by French CJ in Rowe v Electoral Commissioner regarding sections 7 and 24 as “bedrock” provisions
The Constitution requires that members of Parliament be “directly chosen by the people”. That requirement is “constitutional bedrock”. It confers rights on “the people of the Commonwealth” as a whole. It follows, as Isaacs J said in 1912, that: “The vote of every elector is a matter of concern to the whole Commonwealth.” Individual voting rights and the duties to enrol and vote are created by laws made under the Constitution in aid of the requirement of direct choice by the people. An electoral law which denies enrolment and therefore the right to vote to any of the people who are qualified to be enrolled can only be justified if it serves the purpose of the constitutional mandate. If the law’s adverse legal or practical effect upon the exercise of the entitlement to vote is disproportionate to its advancement of the constitutional mandate, then it may be antagonistic to that mandate. If that be so, it will be invalid. Laws regulating the conduct of elections, “being a means of protecting the franchise, must not be made an instrument to defeat it”. As the Court said in Snowdon v Dondas: “The importance of maintaining unimpaired the exercise of the franchise hardly need be stated.”Crennan J similarly commented
In establishing the Commonwealth, the Constitution directs, and gives effect to, a system of representative government (sometimes called representative democracy) which involves direct popular election. The Constitution left it to Parliament, within the limits fixed by the Constitution, to prescribe the form of representative government. The matters of qualification for the franchise and the method of election for both the Senate and the House of Representatives are left by the Constitution to the political choice of Parliament, so long as any electoral system adopted remains within the broad range of alternatives by which provision may be made for Houses of Parliament composed of members “directly chosen by the people”. ... The historical circumstances, and the stage reached in the evolution of representative government, as at the date of Federation assist in exposing the bedrock and show that the relevant words of ss 7 and 24 have always constrained Parliament, in a manner congruent with Gleeson CJ’s conclusion that the words of ss 7 and 24 have come to be a constitutional protection of the right to vote.The Court noted that the Commonwealth Constitution does not mandate any particular electoral system, with the choice as to the features of that system instead being left to the Commonwealth Parliament. The method of choice adopted by the Commonwealth Parliament is not an end in itself but a means to an end, namely, the election of senators and members of the House of Representatives “directly chosen by the people”, of the respective States, in the case of the Senate, and of the Commonwealth, in the case of the House of Representatives.
The Court noted that
The defendant submitted that previous High Court authority does not establish that an elector has to mark the ballot paper. Alternatively, if a mark has to be placed on the ballot paper the cases do not define what “mark” means. It was further submitted that, in accordance with authority, the obligation to mark a ballot paper was not enforceable. It was emphasised that a failure by an elector who had attended a polling station, had their name crossed off the roll, had obtained a ballot paper, then failed to mark that ballot paper before placing the paper in the ballot box would not give rise to an offence. It was said in these circumstances that as the defendant did not intend to vote and in particular, did not intend to mark the ballot paper, he was under no obligation to go through the empty process of attending to the other requirements of the legislation. It was said that otherwise the legislation would amount to an obligation to attend at a polling station and go through the meaningless process culminating in the depositing of an unmarked ballot paper. The defendant further submitted that by choosing not to attend a polling booth the defendant did vote within the meaning of section 245(15) in that he exercised his right to vote by declining to do so thereby discharging the duty owed by him under section 245(1) of the Commonwealth Electoral Act. Consequently, it was said that he had not committed any offence. The defendant also contended that the offence created by section 245(15) of the Commonwealth Electoral Act is not specific enough as to the requirements of the act of voting such that a non-attendance can be said to amount to a failure to vote. It was also said that the prosecution did not discharge the onus it bore of establishing that the defendant did not have a valid and sufficient reason for his failure to vote.
The elements of the offence are capable of discernment in the usual way as a matter of statutory construction. Counsel for the respondent, the Australian Electoral Commission, and the intervener, the Attorney-General of South Australia, submitted that the consequence is that “failure to vote” within the meaning of section 245(15) includes failing at all to attend a polling booth.It concluded that
- Sections 7 and 24 of the Commonwealth Constitution mandate a system of representative government with a particular characteristic, namely, ultimate control by the people exercised by representatives who are elected periodically.
- Section 245(15) of the Commonwealth Electoral Act is a law with respect to elections. It is supported by sections 10, 31 and 51(xxxvi) of the Commonwealth Constitution.
- The Commonwealth Electoral Act is legislation enacted within power. The legislation is relevantly limited and restricted by the Commonwealth Constitution.
- Whether or not the elements of an offence against section 245(15) of the Commonwealth Electoral Act are made out by the failure to mark the ballot paper in a fashion prescribed by sections 239 and 240 of that Act need not be resolved in this case.
- For the purposes of section 245(15) of the Commonwealth Electoral Act, the defendant was an elector who failed to vote at an election. Accordingly, pursuant to section 245(15), he is guilty of an offence.
- The Commonwealth Constitution does not vest a personal right in an elector to vote in a federal election