“It shall be the duty of every elector to vote at each election.”

That is S245(1) of the Commonwealth Electoral Act 1918.

In the Why are elections bad things post the issue of compulsory voting has come up. Several threadsters have the view that voting per se is not mandatory, just turning up and having your name struck off the roll is mandatory. To be fair this is a common view that is actively promoted in the community. So what is the legislation?

S233:

Vote to be marked in private
(1) Except as otherwise prescribed the voter upon receipt of the ballot paper shall without delay:

(a) retire alone to some unoccupied compartment of the booth, and there, in private, mark his or her vote on the ballot paper;

(b) fold the ballot paper so as to conceal his or her vote and:

(i) if the voter is not an absent voter–deposit it in the ballot-box; or

(ii) if the voter is an absent voter–return it to the presiding officer; and

(c) quit the booth.

That is the secret ballot – an Australian innovation – and the flaw in the system.

S240:

Marking of votes in House of Representatives election
(1) In a House of Representatives election a person shall mark his or her vote on the ballot paper by:

(a) writing the number 1 in the square opposite the name of the candidate for whom the person votes as his or her first preference; and

(b) writing the numbers 2, 3, 4 (and so on, as the case requires) in the squares opposite the names of all the remaining candidates so as to indicate the order of the person’s preference for them.

(2) The numbers referred to in paragraph (1)(b) are to be consecutive numbers, without the repetition of any number.

So far we have established that voters must mark their ballot paper in private and second how they must mark their ballot paper.
S245:

Compulsory voting
(1) It shall be the duty of every elector to vote at each election.

(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.

(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).

As it happens S233(1)(b) makes it difficult for the Electoral Commissioner to comply with with S245(2). The best the Electoral Commissioner can do is make a list of people who didn’t turn up to vote but he should be making a list of everyone who failed to comply with S240 for House elections and/or S239 in Senate elections. S 238 deals with spoilt papers that occur by “mistake or accident”.

So in answer to the question

Are you saying a deliberate informal vote (e.g. blank paper) is against the law?

my answer is “Yes”. Not just blank, but any deliberate violation of S239 and S240 is against the law (the legislation for those who distinguish between “law” and “legislation”).

A few years ago two of my RMIT colleagues and I published a paper in Policy on this very issue:

Despite the plain language of the Act, many Australians are under the impression that voting per se is not compulsory. Rather it is compulsory to simply turn up to the voting booth, and have your name struck off the register. Whenever compulsory voting is discussed in the media, the letters pages of the newspapers are filled with correspondents claiming voting is not compulsory, while attendance is compulsory. Before discussing this notion in greater detail, consider the case of Krosch v Springell: ex parte Krosch [1974] QdR 107. Mr Springell arrived at a polling booth and handed the electoral officer a note saying he did not wish to vote for any candidate, as he found them all to be unworthy. He was prosecuted, and fined, for not voting despite the fact he had made the effort to turn up on Election Day. In its submission to the JSCEM Inquiry into the 2004 election, the AEC makes the claim “Because voting is compulsory in Australia, turnout is regularly in the vicinity of 95%.” Clearly, the AEC takes the view that compulsory voting leads to high turnout, not compulsory turnout leads to high voting.

Colin Hughes – the Australian Electoral Commissioner between 1984 and 1989 – has argued that voters were not compelled to vote for any candidate, they could always spoil their ballot. Kim Beazley – leader of the opposition – has argued voters can simply put the ballot in their pocket and leave the polling booth (in apparent defiance of section 339(1) that explicitly defines this behaviour as an offence). While Chris Puplick AM – former Liberal Senator – has written, voters “have an absolute right not to vote by placing a blank or spoiled ballot paper in the ballot box.” Judges enforcing the law, however, appear to be unaware of this “absolute right” – especially with regard to blank votes. Chief Justice Barwick, for example, wrote that voters must actually mark the ballot paper, and deposit that ballot into a ballot box. While Justice Blackburn was of the opinion that casting an invalid vote was a violation of the Act. Justice Blackburn’s view, however, is obiter, and is even regarded as heretical. Both views, however, are consistent with section 233 of the Electoral Act where the process of voting is described.

Voters, increasingly, do spoil their ballots. [Figure showing this is in the link above]. This, of course, begs the question, ‘What does happen to individuals who vote informally?’ Nothing. Australia was the first country to employ the secret ballot (often referred to as the ‘Australian Ballot’). According the Australian Electoral Commission, it is not “an offence to vote informally in a federal election.” After all, there is a secret ballot (section 233(1) of the Electoral Act); in principle the authorities should be unable to identity any voter from their actual ballot. For example, any ballot where the voter has written their name is invalid. Furthermore, many voters may ‘legitimately’ spoil their ballot through confusion and error. This view, however, is not entirely consistent with an AEC Research Report where the author writes, “While compulsory voting avoids a high degree of abstention, there is no guarantee that everyone will comply with the electoral laws and vote formally” (emphasis added). Similarly, the JSCEM report into the 2004 election states, “Because of the secrecy of the ballot, it is not possible to determine whether a person has filled out their ballot paper prior to placing it in the ballot box. It is therefore not possible to determine whether all electors have met their legislated duty to vote” (emphasis added).

This inconsistency may well explain the confusion. Voters are legally required to vote, but there is no penalty for spoiling your ballot. Indeed, given that failing to vote because the voters dislikes all candidates equally, or cannot decide between them, is not a valid and sufficient for not voting, many voters may well have to spoil their ballots, or pay a fine. A reading of some of the court cases involving compulsory voting is instructive. The definitive case is Judd v McKeon (1926) 38 CLR 380 where the general principle of “valid and sufficient” was determined to be a “personal physical inability to record a vote.” Of course, the court left open the notion that “valid and sufficient” cause was a function of the circumstances, yet it is difficult to understand what these other circumstances could be. They are not, for example, an ideological objection to voting (Judd v McKeon), nor is a lack of preference for any candidate (Faderson v Bridger 1971 126 CLR 271), or even ignorance of the candidates (O’Brien v Warden 1981 37 ACTR 13). The latter cases are quite remarkable. Mr Faderson indicated he had no preference for any of the candidates, and to say he had would constitute a lie. High Court Chief Justice Barwick indicated that voters are not expected to express an opinion of what they want, but merely to indicate, from the choice available to them, what they must have. This neatly sidesteps the issue of voters being forced to lie. The Warden case is even more damning. Here the issue of voters lying is not sidestepped. Mr Warden arrived in the ACT just prior to an election, and was ignorant of the candidates, and their policy platforms. Nonetheless, he was found not to have a “valid and sufficient” reason for not voting. In the words of Chief Justice Blackburn of the ACT Supreme Court: “In my opinion the Act does not oblige the elector to make a true expression of his preference among the candidates. On one view he must make an expression of apparent preference; on another he need not express himself intelligibly or at all.”

So voting is compulsory in Australia. Deliberate spoiling of ballot papers is illegal but detection methods make this part of the law difficult to enforce.

Compulsory voting is popular amongst the political classes and the more honest of those argue that yes voting is compulsory, but that it should be compulsory. But that is a completely different argument.

John Hirst has a quick history of compulsory voting here.

Tim Evans of the Australian Electoral Commission has a backgrounder here.

The Australian Electoral Commission provide arguments for and against compulsory voting here.

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