Another instance of pseudolaw - statutes are supposedly invalid because incorrectly sealed - with a religious inflection in New v Dvorsky [2024] TASMC 4 ...
Nicholas Stefan Dvorsky did not vote at the Federal election held on 21 May 2022. He has been charged with failing to vote at an election contrary to s245(15) of the Commonwealth Electoral Act 1918. He has pleaded not guilty. He says he was not required to vote because of his religious belief.
It is an offence for an elector to fail to vote at an election: s245(15). That is an offence of strict liability: s 245(15A). However, the offence is not committed if the elector has a valid and sufficient reason for the failure: s 245(15B). The fact than an elector believes it to be part of his or her religious duty to abstain from voting constitutes a valid and sufficient reason for that failure: s 245(14). The essential facts constituting the offence were averred in the complaint. Pursuant to s 388 of the Commonwealth Electoral Act 1918 they are taken to be proved in the absence of evidence to the contrary. There was no such contrary evidence.
However, there was evidence of email communications between the defendant and the Australian Electoral Commission in which the defendant, describing himself as a "private sentiment soul" and "Nicholas Stefan of the House of Dvorsky" and using the email address Livingman1995@gmail.com, sought to establish that he was not obliged to vote. What the defendant was saying in those emails was difficult to understand. They contained illegitimate demands, used terms and language with a quasi-legal complexion but which were otherwise entirely misconceived and contained a plethora of non-sequutur.
He accused the Australian Electoral Commission of being an unconstitutional foreign entity acting outside of the Commonwealth of Australia Constitution Act 1900 UK and not abiding by "heavenly father’s Authorised King James Version Bible 1611 (Banking Instruments, Banking Law and Equity)".
It is unclear whether the defendant's copy of the 1611 KJV includes a discrete chapter on 'Banking Instruments, Banking Law and Equity'.
The judgment indicates
He then stated: “It’s against my religion to abstain from voting and if you ask why, it’s because that’s between myself and the Creator”.
Taken literally that statement indicates the defendant is asserting a religious duty to vote. However given the other content of his emails I understand him to be asserting it is his religious duty not to vote.
In order to fall within the valid and sufficient reason specified in s245(14) there is a need to identify a religious duty, that is a duty imposed by a religion. The leading authority on what constitutes a religion is Church of the New Faith v Commissioner of Pay-Roll Tax (Victoria) [1983] 154 CLR 120; [1983] HCA 40.
As Mason ACJ and Brennan J observed at 132 "the mantle of immunity should soon be in tatters if it were wrapped around beliefs, practices and observances of every kind whenever a group of adherents chose to call them a religion ... a more objective criterion is required". Their Honours identified the objective criteria as being twofold: “[F]irst, belief in a supernatural Being, Thing or Principle; and second, the acceptance of canons of conduct in order to give effect to that belief ...”.
Wilson and Deane JJ referred to the following indicia of a religion, at 174: a belief in the supernatural, that is to say a belief in a reality which extends beyond that which is capable of perception by the senses; a belief in ideas relating to the nature of human beings, their place in the universe and relationship to the supernatural; those beliefs require adherence to particular standards, codes of conduct or practices by those who hold them; the existence of an identified group of believers even if not a formal organisation; and the opinion of the believers that what they believe constitutes a religion.
The defendant need only point to evidence which suggests the reasonable possibility that such a religious duty exists. It is then for the prosecution to negative the existence of that duty beyond reasonable doubt: s13(3) Commonwealth Criminal Code and Commonwealth Director of Public Prosecutions v Easton [2018] NSWSC 1516 at [73].
The defendant referred to Christian belief. He also referred to many texts from an ancient version of Christian scripture. However, aside from his assertion that it was against his religious belief to vote, there was no evidence that the Christian religion including its many manifestations in the multitude of formal and informal denominations which now exist contains any prohibition on voting. Indeed there was no express assertion that the defendant was an adherent of any group of believers who are subject to a duty not to vote. I am not satisfied he is. Rather his assertion of a religious duty appears idiosyncratic.
Against the eventuality that I am wrong as to that I have assumed that the asserted duty not to vote arises as a result of adherence to the standards, codes of conduct and practices articulated in the various passages of scripture referred to by the defendant in the Authorised King James Version of 1611. I have therefore considered whether those texts in that version provide any support for the duty not to vote. In undertaking that consideration I take care to avoid this court assuming any role as a tribunal of doctrine. I am considering whether the ideas the defendant articulates as a basis for failure to vote give rise to a duty to behave in that manner. I also understand that a belief in the supernatural may involve an element of mystery, perhaps grounded in the experience of the divine rather than in logic alone. However, if the duty not to vote is to be established as a religious duty, it should be capable of some coherent explanation by reference to the tenets of the defendant’s religion. With those considerations in mind I turn to consider the passages of scripture referred to by the defendant.
First, the defendant refers to Romans 2:11 which says, “For there is no respect of persons with God". Although on his case the Australian Electoral Commission is an unconstitutional foreign entity acting outside of the scope of the Australian Constitution, I infer the defendant considers it a person and therefore not respected by God. Whether or not the Australian Electoral Commission is a person and whether or not that entity is respected by God has no bearing on the duty of an elector to vote. Further, properly understood, that text is simply referring to the impartiality of God; that the social status of a person is irrelevant to God. It does not provide any foundation for failing to vote.
Second, the defendant refers to Leviticus 19:15 which says "Ye shall do no unrighteousness in judgment: thou shalt not respect the person of the poor, nor honour the person of the mighty: but in righteousness shalt thou judge thy neighbour". Although again alluding to impartiality, there is nothing in that passage which would justify a failure to vote.
Third, the defendant refers to Matthew 7:12 which states "Therefore all things whatsoever ye would that men should do to you, do ye even so to them: for this is the law and the prophets". Sometimes referred to as the Golden Rule, there is nothing in that passage which would justify a failure to vote.
Fourth, the defendant refers to Exodus 20:13, part of the Decalogue, in particular the prohibition on killing. There is nothing in that passage which would justify a failure to vote.
Fifth, the defendant refers to Matthew 5:9, one of the Beatitudes, which states, "Blessed are the peacemakers: for they will be called children of God". There is nothing in that passage which would justify a failure to vote.
Sixth, the defendant refers to Proverbs 24:11-12 which states, "If thou forebear to deliver them that are drawn unto death, and those that are ready to be slain; if though sayest, behold, we knew it not; doth not he that pondereth the heart consider it? And he that keepeth thy soul, doth not he know it? And shall not he render to every man according to his works?" Although clearly encouraging ethical, compassionate, empathetic and responsible conduct towards others, particularly the vulnerable, there is nothing in that passage which would support a failure to vote.
Seventh, the defendant refers to Psalm 25:9 which says, "He guides the humble in what is right and teaches them his way". Once again there is nothing in that passage which would justify a failure to vote.
Insofar as the defendant seeks to rely on Holy Writ, it appears somewhat convenient to the position he takes that he omits a reference to the Apostle Paul in Romans 13:1-4 which says, in the particular translation upon which the defendant relies, "Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God. Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation. For rulers are not a terror to good works, but to the evil". That suggests a duty to comply with the requirements of the law.
I have focussed on the passages of scripture referred to by the defendant because they are the only parts of his emails which carry any religious allusions. However in reality, insofar as the defendant’s objection to voting is capable of being understood, it is, in substance, based on a belief in the invalidity of the legislation requiring him to vote, that the legislation does not bind him for some other reason, some defect in the status of the Australian Electoral Commission or a disagreement with the decisions made by those elected. Similar views have consistently been held not to constitute a valid and sufficient reason for failing to vote: see Commonwealth Director of Public Prosecutions v Easton [2018] NSWSC 1516, particularly the discussion of the authorities by N Adams J from [75] and the summary at [95]. The defendant has simply given those views a religious gloss. The suggestion that they give rise to a religious duty of some sort is not established by the evidence. Indeed, the materials provided to me provide no coherent basis for concluding that any such religious duty exists.
That is enough to determine these proceedings. However it is appropriate to refer to one further matter raised in the materials the defendant relied on.
As part of the assertion that the laws which require the defendant to vote are not valid, he referred to statements said to have been made by Magistrate McKee when dealing with complaint 51841/2015 on 13 November 2015. The defendant asserts that Magistrate McKee said that he understood the argument of the defendant in that case to be that any state laws that had been passed since 1901 in Australia and in the State of Tasmania are invalid because they didn’t put the correct seal on. The laws the prosecution was relying upon therefore do not exist and if the prosecution was to proceed any further it would have to address the seal argument.
