Australian Journal of Political Science
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Compulsory Voting in Australia: What is Compulsory?
Helen Pringle
To cite this article: Helen Pringle (2012) Compulsory Voting in Australia: What is Compulsory?,
Australian Journal of Political Science, 47:3, 427-440, DOI: 10.1080/10361146.2012.704001
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Australian Journal of Political Science,
Vol. 47, No. 3, September 2012, pp. 427–440
Compulsory Voting in Australia: What is
Compulsory?
HELEN PRINGLE
University of New South Wales
Many academic and popular writers have argued that ‘compulsory voting’ is
an illusion in Australia because it is not compulsory to fill out the ballotpaper. This is the orthodox assumption. I argue that this view is mistaken,
and that the duty to vote clearly includes the marking of the paper. Whether
and how the requirement is able to be enforced is a completely different
question from whether it is indeed a requirement.
Keywords: compulsory; elections; voting
In this article, I am concerned with the question of what is ‘compulsory’ in
compulsory voting. Compulsory voting for Australian federal elections has
been in place since 1924, and was first implemented in the 1925 election. Failure
to vote at federal, and now state, elections in Australia is an offence and incurs
a penalty, unless ‘a valid and sufficient reason’ for not voting is evident or is
provided to the returning officer (Commonwealth Electoral Act 1918, x245). On
the question of what must be done in order to ‘vote’ and avoid a penalty, it is a
widely held view that turnout is what is compelled by Australian law, and that
attending a polling place and collecting a ballot-paper fulfils the ‘duty to vote’.1
The controversial report on the 1996 federal election by the Joint Standing
Committee on Electoral Matters (hereafter, JSCEM) noted: ‘As an elector, all
one can say with confidence is that it is compulsory to have one’s name marked
off the rolls and to receive ballot papers’ (JSCEM 1997, 24). This was also the
view maintained, in slightly different terms, in the JSCEM minority report by
Labor parliamentarians Stephen Conroy, Laurie Ferguson and Robert
McClelland, even though they did not support the (majority) report’s
recommendation of the abolition of compulsory voting. The minority report
noted: ‘The point should be made unambiguously that Australia does not have
compulsory voting. The reality is that people are required to attend a polling
booth. As has been argued by those who assert that informal voting is a form of
protest, people have this option’ (JSCEM 1997, 125).
Helen Pringle works in the areas of human rights, ethics in public life and political theory in the
School of Social Sciences at the University of New South Wales.
1
Physical attendance at a polling place is not, however, necessary in order to vote. Electors can
request a declaration vote, such as a postal ballot, to fulfil their duty.
ISSN 1036-1146 print; ISSN 1363-030X online/12/030427-14 Ó 2012 Australian Political Studies Association
http://dx.doi.org/10.1080/10361146.2012.704001
428
H. PRINGLE
Senator Andrew Murray argued along similar lines in the second JSCEM
minority report:
‘Compulsory’ voting does not mean it is compulsory to cast a vote. It is
compulsory to attend a polling booth and have your name marked against the
electoral roll as having attended. It is compulsory to place your ballot papers
in the box, but it is not compulsory to mark those ballot papers. A small
number of Australians do ‘vote’ in this way (JSCEM 1997, 138 n. 3).
Across the board then, the JSCEM reports reflected the common view of both
critics and supporters of compulsory voting in Australia, that it is not compulsory
to mark the ballot-paper. The precise claim being made in these reports is
ambiguous, however. It could mean that attending a polling booth and being
checked off the roll, without anything further, constitutes ‘voting’, and hence
fulfils the duty to vote (per Murray, above). Or it could mean, paradoxically, that
what many, if not most, people consider ‘voting’ – that is, marking the ballot and
depositing it in the ballot box – is the only part of voting that is not compulsory
(per Conroy et al., and Murray, above). My argument is that however it is
constructed, this view about compulsory voting in Australia is mistaken, and that
the ‘duty to vote’ requires electors to mark their ballot-papers.
This question about what is ‘compulsory’ in compulsory voting has attracted
surprisingly little sustained analysis by political scientists. The orthodox
assumption runs along similar lines to the JSCEM reports but, for the most
part, is asserted rather than argued, and lacks systematic and extended
argument in its favour. My argument questions the orthodox assumption and
the claims on which it rests. I adopt an interdisciplinary approach that brings
together statutory material, judicial views and insights from political science.
This article comes out of a wider project exploring the meaning of
‘conscientious objection’ with respect to voting, jury duty and military service
in Australia. It was sparked by the claim of the former opposition leader, Mark
Latham, that he would cast a blank ballot-paper in the 2010 federal election
because both major parties were ‘dumbing down politics’. Speaking on 60
Minutes, Latham justified his position by noting: ‘They say voting is compulsory
in Australia. But it’s not compulsory to fill out the ballot paper. You can put it
straight into the ballot box totally blank. That’s what I’ll be doing on Saturday,
and I urge you to do the same. It’s the ultimate protest vote’ (reported in Nader
2010). After the election, Latham reiterated his position, adding: ‘The AEC
[Australian Electoral Commission] should inform people that it is one of their
democratic rights to submit a blank ballot paper’ (Latham 2010, 58).
Then-Labor leader, Kim Beazley (2005), made similar comments to Latham’s
in October 2005, and Richard Mellows, president of the South Australia Law
Society, supported Latham’s position in an opinion piece:
The more fascinating question is this: Does the compulsory process actually
require a person to vote?
Clearly not.
The electoral provisions seem not to require a person to make a choice. All
they require is an attendance at a polling station, but there is no need to mark
COMPULSORY VOTING IN AUSTRALIA
429
the paper at all. All one needs to do is simply attend, have your name ticked
and deposit the paper in the appropriate ballot box.
So, the notion of compulsory voting is an illusion (Mellows 2010, 18).
This common assumption in political, academic and legal circles about what
is compulsory in voting, rests, in turn, on a claim that the act of marking the
ballot-paper is not – and, according to some writers, cannot (or may not justly)
be – compelled. This is, on the face of it, an odd claim. That is, on this view, one
can (or may justly) be compelled to turn up at a particular place within a
particular span of time, and to perform certain actions with a ballot-paper, such
as picking it up and perhaps putting it in the polling box – but, so it goes, there
is something distinctively odious about compelling a person (or being
compelled) to make a mark on the paper.
To borrow an analogy from Annabelle Lever, it seems odd to claim that
being forced to attend church does not violate my conscience, at least if I am
not forced to pray while there (Lever 2008, 64 n. 4). The liberty of the subject
and citizen is surely no less imperilled by a compulsion regarding the movement
of his or her person to a specified place and purpose. It is not clear how the
proponents of Mark Latham’s view can maintain that ‘attending’ a polling
place is an ‘option’ and, indeed, part of a ‘democratic right [to protest]’, when it
is thus compelled. In this article, I argue that this view is related to a number of
errors regarding both the meaning of ‘voting’ and the meaning of ‘compulsory’
in Australian legislation.
This article focuses on the duty to vote in Australia, but has implications for
the 30 or so other countries with some form of compulsory voting. As the
Sweden-based Institute for Democracy and Electoral Assistance notes (IDEA
n.d.), however, the requirement to vote is not always enforced, may be weakly
enforced or may not be subject to penalties.
The wider implication of my argument is that it is important to define
carefully what is meant by voting. There is substantial academic literature
making the case ‘for’ or ‘against’ compulsory voting in other countries, but the
primary focus is whether compulsory voting increases ‘turnout’ (and/or
representative turnout), not whether it increases marked ballots. An exchange
on compulsory voting across 2010 and 2011, in the journal Politics, was
concerned almost entirely with the effects of compulsion on turnout, and with
assessing the significance of turnout for democratic participation and civic life
(Fischer 2011; Hill 2011 a; Machin 2011; Saunders 2010; 2011). Our attention
should be focused more on voting as marking ballots, rather than on turnout, in
measuring and assessing democratic vitality.
I first set out the contours of the ‘duty to vote’ in Australian electoral
legislation, and sketch the genesis of the orthodox assumption among political
scientists as to the compulsory aspects of that duty. In the second section, I
explore the ground on which such an assumption might appear plausible. That
is, it might be argued that the secrecy of the ballot in Australia precludes, in
practical terms, a compulsion to mark the ballot. I conclude by suggesting that
the secrecy of the ballot does not, in all circumstances, exclude the availability
of evidence of non-marking of ballot-papers.
My aim is not to commend or criticise compulsory voting, and I do not take a
position on whether people should be compelled to be part of the ritual of
430
H. PRINGLE
attendance at the polling place. Rather, in criticising the orthodox assumption
about what compulsory voting makes compulsory, I suggest that it is important
for conscientious citizens to think more clearly and deeply about the
distinctions involved in electoral law and policy.
Non-Voting Voters and the Duty to Vote
Mellows (2010, 18) concluded his opinion piece on not marking the ballotpaper by asking: ‘I wonder how many people voted in this way?’ There are, of
course, many ballots cast in Australian elections that do not count towards
the final result because they are deemed informal. Also, there are many electors
who do not even attend the polling booth to collect a ballot. Voting is compulsory in Australian law, but the turnout at polling places is around 95 per cent
of eligible electors, with the figure dipping in some electorates to around
90 per cent.
In the 2010 election, the proportion of non-attenders was 6.8 per cent, the
highest since 1925 (Colebatch 2010, 13). Of the total number of ballots cast in
Australian elections, informal ballots (including blank papers) run at an
average of around 5 per cent, with the figure much higher in some electorates.
In the 2001 House of Representatives election, for example, 4.82 per cent (or
580,590) of all ballot-papers were deemed informal, with 21.43 per cent of those
left blank (Medew 2003, 2, 8). The Australian Electoral Commission’s (AEC)
study of informal ballots cast at the 2001 election indicates that for around twothirds of that total, there was probably an attempt to cast a valid vote, as
suggested, for example, by incomplete or defective numbering (Medew 2003, 8;
see also Hill 2011 b). Prior to the 2010 election, the AEC predicted that the
percentage of informal ballots would be the highest in 25 years, at an estimated
5.64 per cent of the total (Levy 2010). A higher than usual proportion of blank
ballot-papers was reported.
Those eligible electors who do not attend a polling place (or arrange a
declaration vote in lieu) have prima facie failed to vote. However, the more
difficult question is: can it properly be said that people who, like Mark Latham,
attend a polling place but do not mark the ballot-paper supplied to them, and
then deposit blank ballots, have failed to vote?
x245(1) of the Commonwealth Electoral Act 1918 provides under the heading,
‘Compulsory voting’, that: ‘It shall be the duty of every elector to vote at each
election’. x233 of the Act, ‘Vote to be marked in private’, notes the procedures
that ‘shall’ be followed when a voter receives his or her ballot-paper:
(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.
COMPULSORY VOTING IN AUSTRALIA
431
x233 (previously x119) was considered in the 1971 case of Jurgen Faderson, a
non-attending elector who claimed not to have any preference among the
candidates in a Senate election. Faderson’s appeal of his conviction in the
magistrates’ court was dismissed in the High Court, with Chief Justice Barwick
noting:
Section 128 A places a duty on every elector to record his vote. This is done by
attending at a polling booth, accepting a ballot paper, and, as s. 119 provides,
marking it and depositing it in the ballot box. A failure to vote therefore
involves a failure to attend, accept the ballot paper and having marked it, to
put it in the ballot box. Of course there is no offence committed by not
marking the ballot paper in such a fashion that the elector’s vote is in law a
valid vote [emphases added].2
x233 could arguably be understood as a description of voting rather than a
definition of it, especially as there is no specification of penalty for nonperformance of any aspects provided within the section itself. However, this
absence is covered by the penalty for failure to vote provided for in x245 of the
Act, which is supported by the power of the presiding officer to issue ‘a lawful
direction’ at polling booths (Commonwealth Electoral Act x348(1); see also
Australian Electoral Commission 2010). Moreover, even if x233 is understood
as simply a description of voting, the description does not explicitly include
attendance at the polling booth, which is better understood as a precondition of
the act of voting rather than a constituent part of it. The description does,
however, explicitly include the marking of a ‘vote’ on the ballot-paper. In this
context, it seems important to maintain a distinction between a completed
performance of ‘voting’ and the act of ‘marking a vote’.
x339(1)(e) of the Commonwealth Electoral Act reinforces the inclusiveness
of the aspects of ‘voting’ noted in x233 by providing that it is an offence,
punishable by imprisonment, for persons to ‘fraudulently take any ballot
paper out of any polling booth or counting centre’. This provision was at
issue in 2007, in an investigation in the electorate of Lingiari. A media piece
refers to an alleged attempt by a person to remove a ballot-paper from the
booth, but it is not clear to what purpose the attempt was made (ABC News
2007).
The fallacy of interpreting the term ‘compulsory voting’ as not requiring
the marking of the ballot-paper, may also be clarified by contrasting
the Commonwealth Electoral Act with the South Australian Electoral Act
1985. x85 of South Australia’s Act provides in Division 6, ‘Compulsory
Voting’:
(1) Subject to subsection (2), it is the duty of every elector to record his or her
vote at each election in a district for which the elector is enrolled.
(2) An elector who leaves the ballot paper unmarked but who otherwise
observes the formalities of voting is not in breach of the duty imposed by
subsection (1) (and see further discussion below).
2
Faderson v Bridger (1971) 126 CLR 271, 272 (Barwick CJ).
432
H. PRINGLE
South Australia’s Act explicitly notes that failure to mark the ballot-paper is
not in itself a dereliction of the duty to record a vote. The Commonwealth Act
includes no such provision to qualify x233. Some writers have argued for the
insertion of a similar (x85) provision into Commonwealth legislation, if only to
clarify a position that they believe is already clear (see Hill 2002, 449; 2004, 495–
96; cf. Jaensch 2003, 18).3
The Commonwealth Electoral Act states that marking a vote on the ballot-paper
is an aspect of voting. There is no textual evidence elsewhere in the Act of a design
either to exempt marking the vote from forming part of voting, or to exempt nonmarking a vote from being penalised. Moreover, Commonwealth parliamentary
debates around the introduction of compulsory voting do not provide any
indication that legislators intended to imply such exemptions in electoral law.
When compulsory enrolment was deliberated in the Commonwealth parliament in 1911, the possibility of compulsory voting was noted as its ‘corollary’
(Hansard 1911; on compulsory enrolment, see Gow 1971, 201–05; Sawer 2003).
In 1918, when preferential voting was debated and approved, Senator Foll
reiterated that compulsory voting would ‘complete’ the compulsion of enrolment
(Hansard 1918a). Senator Needham moved to make voting compulsory,
proposing to insert the following paragraph into the bill being debated:
(e) Every person who is entitled to vote and whose name is on the roll shall
record his or her vote on the day of the election. Penalty, 10 s. first offence; £1
for each subsequent offence (Hansard 1918c, emphasis added).
Senator Needham’s amendment was defeated, but it clearly aims to compel
marking the vote, and makes no mention of other ‘formalities of voting’. In the
1918 debate, Senator Senior, in opposing compulsory voting, also expressed the
view that the state may compel an elector to mark the ballot:
Those who advocate compulsory voting cannot guarantee that a person will
use the franchise intelligently. All they can do is to compel an elector to go to
the polling booth and mark a ballot-paper. . ..
We may compel an elector to mark a ballot-paper, but we cannot compel him
to mark it intelligently if he has no desire to do so. Nothing, therefore, can be
achieved by the adoption of compulsory voting (Hansard 1918b, emphasis
added).
I have found no opinion on this problem of compulsory voting in the debate
on the Electoral (Compulsory Voting) Bill of 1924, a private member’s bill
introduced in the Senate by the Nationalist, Herbert Payne, and in the House
by the Nationalist member for Perth, Edward Mann. This instituted
compulsory voting in Australia (Hansard 1924a; 1924b).4
3
Some writers (Bennett 2008, 23) have claimed that in Belgium, where voting is ‘obligatory and
secret’ (Constitution Title III, 1.1.62), the law makes explicit that the only compulsion is
attendance at the polling place. There is, however, no evidence of such a concession in the Belgian
Constitution or Code e´lectoral.
4
See also Hansard (1929), claiming that the Payne bill was the only successful private member’s
bill to that point.
COMPULSORY VOTING IN AUSTRALIA
433
Nor have I found evidence in other early parliamentary or academic forums
of the view that the ‘duty to vote’ does not, or might not, include marking the
ballot-paper. In an article published in 1950, L.F. Crisp simply assumed that an
elector has a duty to ‘record his vote’: ‘The 1924 Federal Act – which was based
on the abortive 1915 Federal legislation rather than on the Queensland Act –
provided that it was the duty of every elector to record his vote at each election’
(Crisp 1950, 85).
The view that the duty to vote does not include marking the paper appears
not to have been canvassed before the early 1970 s. In 1972, a case at the
European Commission of Human Rights concerned an Austrian man’s
opposition to voting in the presidential election of 1971. The applicant was a
barrister, required under the Barristers’ Code to promise compliance with the
law in all circumstances. The Commission noted that compulsory voting does
not violate the right to freedom of thought and conscience protected under
Article 9 of the European Convention on Human Rights. It characterised
voting as: ‘in other words the fact of going to the polls’.5 On that basis, the
Commission argued that it was possible for electors simply to hand in a blank
or spoiled ballot-paper to avoid violating their conscience.
In Australia, Joan Rydon promoted this identification of voting with ‘going
to the polls’. In 1984, Rydon wrote letters to various newspaper editors, arguing
that the Electoral Commissioner had inaccurately directed that ‘voters must
mark all their ballot papers’ (Rydon 1997, 176). Rydon claimed that: ‘They
[electors] could return them blank, or they could vote for only one House, or
one or neither of the referendum questions’ (Rydon 1997, 176). Rydon repeated
this in various forums, maintaining:
Moreover there is an element of dishonesty in the legislation since it cannot
be enforced under a secret ballot; electors may be fined if they fail to attend a
polling station, or to have their names marked off or to accept and return
their ballot paper, but there is no way in which they can be compelled to
mark those papers. Attempts to clarify the law by specifying that it is
attendance at the polls which is compulsory have all failed. Officials
constantly reiterate that ‘voting is compulsory’, but ‘voting’ is not defined.
They reluctantly concede that it is not illegal to vote informally or return
blank ballot papers, but they do their best to discourage such practices
(Rydon 1989, 97).
By the 1990s, Rydon’s view had become the orthodox assumption among
political scientists regarding what is, and what is not, rendered compulsory by
the duty to vote. It took more than 50 years after the introduction of compulsory voting for this distinctive interpretation to emerge, but that per se does not
show that the interpretation is wrong. The claim has regularly been made since,
in broader discussions of compulsory voting. Arend Lijphart, in his influential
work on compulsory voting in the late 1990s, simply assumed that the term
‘compulsory voting’ is a misnomer for ‘compulsory turnout’ (1997, 2),
particularly where ‘the secret ballot guarantees that the right not to vote
5
X v Austria App. No. 4982/71, 15 Yearbook of the European Convention on Human Rights 468
(1972), 474–75.
434
H. PRINGLE
remains intact’ (1998, 10). Lijphart’s assumption is widely adopted in
discussions of compulsion and voting in English and European contexts, as
well as in Australia (Engelen 2007, 42; 2009, 219; Lacroix 2007, 193).
In the next section, I explore the practical ground on which this now
orthodox assumption might appear plausible: that the secrecy of the ballot
precludes the compulsion to mark a vote.
Is Attendance Enough? The Secrecy of the Ballot and the Privacy of the Voting
Compartment
Rydon’s claim that it is ‘not illegal’ to return a blank ballot-paper was amplified
by other Australian academics. Dean Jaensch made a crucial contribution by
arguing that attendance at the polling place and picking up the ballot-paper(s)
are sufficient to satisfy the duty to vote. In other words, the claim was
transformed from: ‘it is not illegal’ to return a blank paper, into: ‘it is legal’ to
do so. Jaensch argued: ‘Australian electoral laws go further than a right to vote;
they include three aspects of a duty, backed by a legal sanction: compulsory
enrolment, compulsory attendance at the poll, usually called ‘‘compulsory
voting,’’ and compulsory preferential voting at almost every election’ (Jaensch
1983, 220, emphasis added).
As I noted above, however, attendance at the polling place, and even
receiving the ballot-paper, are arguably preconditions, rather than elements, of
voting. In a 2003 opinion piece, Jaensch maintained:
In fact, there is no way that anyone can be compelled to vote. To satisfy
‘compulsory voting’, the voter must attend a polling place (or apply for a
declaration vote or have a mobile poll visitor) and receive the ballot paper(s).
Voting – actually writing numbers on the ballot paper – cannot be enforced.
Under the SA Electoral Act, the voters are told that they do not have to mark
the ballot paper. So the ‘offence’ is not a matter of not voting – it is really a
matter of not having attendance ticked off (Jaensch 2003, 18).
In 2005, Jaensch added that in addition to attending and collecting the paper,
putting it in the ballot box is also compulsory:
Of course, there is no such thing as compulsory voting. No one can be forced
to mark a ballot paper. The compulsion is to have your name and address
ticked off, receive a ballot paper and put the paper in the ballot box (Jaensch
2005, 18).
In these passages, Jaensch implies that certain movements of the subject and
citizen can be compelled, while others cannot. There are two interrelated
arguments here. The first is that marking a vote cannot be compelled because it
is incapable of being enforced. The second is that marking a vote may not
(justly) be compelled.
Rydon, in a letter to the editor of the Australian, referred to ‘the pretence that
anyone can be forced to vote under a secret ballot’ (Rydon 1996, 12). The
Commonwealth Electoral Act certainly provides for the marking of the ballot ‘in
private’ (x233(1)(a)), and other provisions of the Act also safeguard the
COMPULSORY VOTING IN AUSTRALIA
435
confidentiality of voters’ choices (for example, xx196–98 on postal votes, and
x200 J–K on pre-poll ballots). However, the Act does not thereby establish ‘a
secret ballot’ in any absolute or complete sense.
A good case can be made for open voting as a democratic practice. John
Stuart Mill opposed the secret ballot, at least in his later writings. In such
arguments, ‘the secret ballot’ was usually referred to as simply ‘the ballot’,
designating it as a practice of privacy in contrast to open political deliberation
and voice. In Considerations on Representative Government, Mill wrote that he
had come to this conclusion after initial hesitation (actually, opposition), on
the basis that the vote is a public trust rather than a right (Mill [1859] 1977a;
see also Mill [1859] 1972, 607–08; Mill [1859] 1977b). This notion was
commonly defended throughout the 18th and 19th centuries (Kinzer 1978,
241–43).
In speaking of the ‘duty to vote’, the language of the Commonwealth
Electoral Act recalls this framing of the vote as more of a trust than a right.
The lack of an explicit conception of voting as a ‘right’, either in the Act or
the Constitution, has been decried by various writers and groups, especially
in the debate on a bill of rights for Australia (Chappell, Chesterman and Hill
2009). My point is simply that it is not the case that the privacy of the
polling compartment does, or should, create an absolute secrecy around
voting.6
Mark McKenna has noted that historical formulations and defences of
the secret ballot in Australia did not necessarily require that individual
ballots be untraceable. For example, H.S. Chapman’s 1856 legislation in
Victoria stipulated that ballot-papers be marked with the voter’s number on
the electoral roll, ‘allowing for the tracing and testing of votes in the case of
alleged impersonation’ (McKenna 2001, 56). This stipulation was absent
from William Boothby’s 1858 South Australian legislation, and in Tasmania
(Newman 2003, 97–8). The established practice in the United Kingdom is to
number ballot-papers, with the voter’s electoral number written next to the
relevant ballot-paper number on a list, in order to provide safeguards
against voter fraud (Electoral Commission (UK) 2006).7 There is also
Australian precedent for the secrecy of the ballot being considered as a
rebuttable presumption: in the 1920 case of Kean v Kerby,8 Justice Isaacs
famously admitted and considered evidence of how electors had intended to
vote.
The argument here is that it is, at least in principle, feasible to establish
whether electors have marked their ballots, while maintaining an a priori
commitment to the privacy of the polling booth. Some political scientists,
however, have argued that the stipulated privacy of the compartment precludes
electoral officials from checking that a ballot-paper has actually been marked.
6
There is a large body of modern case law on the question of secret voting. See the case of Horn
on the significance of booth safeguards for the protection of privacy: Horn v Australian Electoral
Commission [2006] FCA 1778; Horn v Australian Electoral Commission (2007) 163 FCR 585; Horn
v Butcher [2010] WASCA 67. The requirements of secrecy are also canvassed in: Yarran v Blurton
(1992) 35 FCR 485; Yarran v Blurton (No 2) (1992) 36 FCR 152.
7
See also Bridge v Bowen (1916) 21 CLR 582, 586 (Griffith CJ).
8
Kean v Kerby (1920) 27 CLR 449.
436
H. PRINGLE
They hold that the term ‘compulsory voting’ only ‘technically’ covers the
marking of the ballot. For example, Hill claims:
There is some confusion as to whether it is only registration and attendance at
a polling place that is actually compulsory or whether in fact it is technically
an offence to fail to either mark the ballot in some way or record a formal
vote. Clarifying that only the former is the case is important for my argument
that compulsion does not enforce voting but rather serves the principle of
equality of political opportunity (Hill 2002, 448, emphasis added).
Hill argues elsewhere in similar terms:
But it should be noted that the term ‘compulsory voting’ is misleading because
it is (effectively) only registration and attendance at a polling place that are
compulsory. What is really meant by the phrase ‘compulsory voting’ is
attendance at a polling place, having one’s name marked off the roll,
collecting the ballot papers and putting them in the ballot box. Due to the
secret ballot, it is neither feasible nor desirable that the state seek to compel
people to mark the ballot, though whether the law technically requires this is
controvertible. Nevertheless, the compulsion to register and attend does
ensure that the vast majority of Australians enjoy the opportunity to exercise
their ‘right’ to vote (Hill 2004, 481, emphasis in original).9
Hill’s presentation of the orthodox assumption rests on her view that it is
important to stipulate that only attendance is compelled because ‘it is political
opportunity – not voting per se – that is compulsory, and that its capacity to
promote equality of political opportunity is one of the best things about
compulsion’ (Hill 2002, 443). The notion of a compelled opportunity is
somewhat peculiar, but the idea at stake seems to be that a burden is thereby
placed on the state, rather than a duty imposed on the voter (as x245(1) of the
Commonwealth Electoral Act purports to impose).
The term ‘technically’, used in relation to the orthodox assumption in an
argument about legal enforceability, is alien to Australian and common law,
and its common use does little more than express impatience with procedural
probity.10 At any rate, there is nothing ‘technical’ about the Commonwealth
Electoral Act’s requirement for the elector to mark the ballot-paper. Whether
and how the requirement is able to be enforced – particularly with respect to the
availability of evidence of an alleged failure – is a completely different question
from whether it is indeed a requirement, or should be so.
Evidence and Enforceability
This article is primarily concerned with the question of the compulsion to mark
the ballot-paper. A related question in Australian electoral law and policy
9
See also Hill (2000, 33; 2002, 82–3). McCarthy (2000, 114) made a similar argument; see also Orr
(1997, 309–10; 2010).
10
The term is related to the notion of ‘technicality’. I discuss the proper use and misuses of the
latter term in an unpublished paper, ‘Getting Off on a Technicality: The Difficulty of Law’.
COMPULSORY VOTING IN AUSTRALIA
437
concerns whether x239 and x240 (on preferential voting) of the Commonwealth
Electoral Act impose a legal duty on electors to record a formal vote. In the
1981 case of O’Brien v Warden11 in the Australian Capital Territory (ACT)
Supreme Court, Chief Justice Blackburn suggested that there is a strong
argument that the informal marking of a ballot-paper is an offence. His
reasoning is not crucial to my argument, but he provided a salutary corrective
to the orthodox assumption discussed above.
The case concerned a failure to vote by an elector who had returned to
Canberra from an overseas trip before the 1979 election. He had not voted
because, he claimed, he did not have enough time to acquaint himself with the
‘complete strangers’ standing for election. The magistrate in the ACT Court of
Petty Sessions dismissed the charge, but the ACT Supreme Court reviewed the
decision. In setting aside the magistrate’s decision, Chief Justice Blackburn
reflected on the prospects of prosecuting an elector for the non-marking of a
ballot-paper:
No doubt, it would be impossible to adduce direct evidence of this particular
kind of failure, because of the provisions for the secrecy of the ballot; but if
such failure is an offence, a person could be convicted of it on confessional
evidence. I need say no more than that it seems to me arguable that under the
Act the elector’s obligation to vote is satisfied not only by his attendance at a
polling booth but also by going through the whole of the procedure laid
down, including the marking of a ballot-paper in a manner which is not
informal – i.e. in a manner which appears to express a preference.12
In this article, as noted above, I do not deal with the question of the legal
status of informally marking a ballot-paper,13 but only of leaving it unmarked.
In the 1970 case of Lubcke v Little, Justice Crockett seemed to suggest that ‘the
detectable offence’ with respect to the duty to vote is a failure ‘to obtain a ballot
paper’.14 In Warden’s case, however, Chief Justice Blackburn suggested
correctly that it is not impossible, nor always difficult, to find ‘confessional
evidence’ of behaviour in the privacy of the polling compartment. Such
evidence is sometimes offered freely and enthusiastically, as in the remarks of
Mark Latham.
In the introduction, I noted the peculiarity of the view that implies that
compelling a person’s movement to a polling place is not objectionable in terms
of the liberty of the subject and citizen, but finds that compelling the marking of
the ballot is objectionable. Such a perspective is involved in the orthodox
11
O’Brien v Warden (1981) 54 FLR 16.
O’Brien v Warden (1981) 54 FLR 16, 20 (Blackburn CJ).
13
Cases addressing (but not ruling on) this issue include: Douglass v Ninnes (1976) 14 SASR 377;
Faderson v Bridger (1971) 126 CLR 271; Judd v McKeon (1926) 38 CLR 380. For general
discussion of the issue, see Starke (1985, 130); Twomey (1996, 209; 1998, 157).
14
Lubcke v Little [1970] VR 807, 811, per Crockett J: ‘To record an informal vote is not an offence. To
fail to mark a ballot paper so as to show preferences as directed in s. 124 is not an offence. What is
made an offence is a failure ‘‘to vote’’ (s.128A (12)(a)), that is to obtain a ballot paper (which in reality
is what s. 128A (2) and reg 75 and form 39 of the Electoral and Referendum Regulations create as the
detectable offence), as distinct from the failure by the elector ‘‘to record his vote’’ which is the notably
different expression used, perhaps not insignificantly, in s. 128A(1)’.
12
438
H. PRINGLE
assumption that compulsory voting in Australia only requires attendance at a
polling place, and perhaps some ‘other formalities’, but does not require the
marking of the ballot-paper. The privacy of the polling compartment in many
cases renders it difficult to gather evidence of electors not marking the ballot,
but this is not impossible, especially where electors themselves volunteer that
evidence either to the polling official or to the public at large.
There is one other illustrative mistake frequently made about the meaning of
the term ‘compulsory voting’. In Australia, as in other countries, ‘compulsory
voting’ does not actually compel the performance of a duty, but rather provides
penalties for its non-performance. Hill has argued:
If the law were clarified to the effect that marking the ballot in any way were
compulsory, then electoral officials would need to observe the activities of
voters in booths and then apprehend and compel to mark the paper anyone
who failed to comply. The potential ugliness of such a scene does not bear
thinking about (Hill 2002, 449).
However, the Commonwealth Electoral Act does not charge electoral officials
with forcing electors to mark the ballot against their will, nor does it empower
officials to apprehend and transport non-willing electors to polling places. I do
not mean to be disingenuous here. It is certainly the case that imposing a
penalty for the non-performance of a duty is a form of compulsion. Yet there is
a difference between imposing a penalty for non-performance of an action, and
enforcing the performance of a positive duty. An analogy can be drawn with the
reluctance of courts to compel specific performance of contracts of personal
service, given concerns that to do so would endanger the inviolability of the
person and raise suspicions about slavery.15
In a strict sense, then, eligible electors are not compelled even to attend a
polling place, but they can be penalised for not doing so. Similarly, electors are
not compelled to mark the ballot-paper. It might indeed be the case, as Mellows
argued regarding Mark Latham’s account of the orthodox assumption, that
compulsory voting is an illusion – but not in the same sense as that put forward
by the writers who uphold the assumption.
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