Failing To Vote

Voting is compulsory in all federal elections in Australia. Anyone who does not vote, and does not have a legitimate reason for not voting, faces a fine. Enrolling to vote in federal elections was made compulsory in 1912, and voting at federal elections was made compulsory in 1924. Voting is governed by the Electoral Act 1918.

Enrolment

The Act requires all Australian citizens aged over 18 to be enrolled to vote. Australian citizens aged 16 and 17 can make a claim to enrol before they turn 18. Those who are not entitled to vote include anyone who:

• is of unsound mind and who is incapable of understanding the nature and significance of enrolment and voting;
• has been convicted of treason or treachery, is not entitled to enrol or vote;
• who is serving a prison term of 3 years or longer.

Voting is not compulsory for eligible voters who are in Antarctica, otherwise overseas or itinerant.

It is an offence to vote more than once in an election.

Voting

There are four ways a person can cast their vote: ordinary, pre-poll, provisional or absent.

Ordinary

The person attends a polling place, has their name marked off the voter list, receives a ballot paper, marks their vote and places their paper in a ballot box. Some voters may be able to vote outside the polling place, such as when they have a physical disability or illness or if they are heavily pregnant. Help to vote can be given to voters if they have impaired sight, are physically incapacitated  or illiterate and cannot vote without that help.

Pre-poll

A person can cast a pre-poll or postal vote if on polling day if they:

• are outside the state or territory for which they are enrolled;
• are outside the division for which they are enrolled to vote;
• are travelling and cannot reach a polling booth;
• are unable to leave their workplace to vote;
• are seriously ill, inform, or about to give birth, or are looking after someone who is;
• are a patient in a hospital and can’t vote at the hospital;
• have religious beliefs which prevent them from attending a polling booth;
• are in prison serving a term of less than 3 years or are otherwise detained;
• are a silent voter (their address is not listed on a publicly available electoral roll for safety reasons);
• have a reasonable fear for their safety.

A pre-poll vote can be cast at a pre-poll centre within the person’s division.

A person who has been accepted as a postal voter will receive a ballot paper in the post and a reply paid envelope.

Provisional

A person can cast a provisional (declaration) vote where:

• their name can’t be found on the certified list of voters for the division;
• the person’s name is on the certified list but not their address;
• the list shows the person has already voted;
• the person’s identity can’t be confirmed;
• the person is provisionally enrolled (such as when they are about to become an Australian citizen).

The person must sign a declaration in the presence of a polling official, who signs and dates the declaration envelope.

Absent

A person can cast an absent vote if they attend a polling centre that is outside their division, but within their state or territory, on polling day. They must state their address and sign a declaration before they receive their ballot paper.

Penalties for not voting

Under section 245 of the Act or section 130 of the Referendum (Machinery Provisions) Act 1984, a person can be fined for not voting.

The Electoral Commissioner must, after polling day, compile a list of the names and addresses of people who did not vote at each electoral division. Within 3 months, the Divisional Returning Officer (DRO), who is in charge of voting in each division, must issue a penalty notice to every person on the list, unless they believe the person:

• is dead;
• was absent from Australia on polling day;
• was ineligible to vote;
• had a valid and sufficient reason for failing to vote.

The penalty notice states the person appears to have failed to vote as required, that the failure is an offence if there is no valid and sufficient reason, and that if the person does not want the matter to go to court, they have 3 options, Those options are:

• provide the particulars of their voting if they did vote;
• provide a valid and sufficient reason for not voting;
• pay a penalty of $20 to the DRO.

If the person provides the required information, and the DRO is satisfied with it, or the person pays the penalty, the matter ends.

If the person fails to provide a valid and sufficient reason for not voting, or fails to pay the penalty, they can be prosecuted. The court can impose a fine of 1 penalty unit ($222) and order the person to pay court costs. If the person fails to pay the fine, the court can take further action, the type of which depends on the state or territory in which the conviction is recorded.

Valid and sufficient reasons

What constitutes a valid and sufficient reason is for the DRO to assess on the merits of each individual case in line with decisions in past cases. Valid reasons provided by the High Court include sickness, physical obstruction, natural events, accidents, or when a person on their way to a polling centre is diverted to save life, to prevent crime, or to help in a disaster such as a fire.

Having no preference for any candidate, or conscientiously objecting to voting, are not considered valid or sufficient reasons.

For advice or representation in any legal matter, please contact Armstrong Legal.