If you don't want to exercise your right to vote, can you go to jail for not voting in Australia? Voting is a civic duty. As a citizen, your vote is your voice. But what if you haven't voted in a while, or skipped voting in a recent election?
In some countries, voting is merely a privilege, not a legal duty; it is not mandatory or compulsory. You can simply choose to exercise your democratic right to vote or not. Citizens of countries with no compulsory voting system do not go to jail or even pay a fine for not voting.
But in Australia, voting is mandatory. An Australian citizen over 18 years of age has an obligation to vote. Voting has been compulsory in Australia since 1924. Federal politicians passed a law to counter the "apathy and indolence" that citizens exhibited as voting participation rates dropped to 47 percent. The Electoral Act 1918 governs the voting laws of Australia. This article will discuss the legal consequences of failure to vote in elections.
Failing to Vote in Australia
Section 245 of the Electoral Act 1918 provides that persons who fail to vote without a valid reason will face a fine of $20. If left unpaid, these fines can lead to additional fees and penalties, which can increase to more than $200.
The Australian Electoral Commission is in charge of Australian federal elections and deals with the electoral roll, ballot papers, a pre-poll vote and postal vote among other election matters. After polling day, Electoral Commissioner compiles 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.
Persons who failed to vote will receive a penalty notice. The penalty notice states that 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:
- 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 happy with it, or the person pays the penalty, the matter ends.
So When Can You Go to Jail for Not Voting in Australia?
If paying a fine is the penalty, can you go to jail for not voting in Australia? We know that electors who fail to vote and do not provide a valid and sufficient reason for such failure will receive a fine. But there is a distinction.
To quote Australian Electoral Commission assistant commissioner Brien Hallett, "non-voters do not go to jail for failing to vote. They go to jail for failing to pay the fine that they get if they fail to vote. It may seem a fine distinction, but people do not get sentenced to jail for not voting." If the person fails to pay the penalty, courts may prosecute them. The Court can impose a fine of one penalty unit (currently $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 further action may differ from state to state.
So can you go to jail for not voting in Australia? Courts do not sentence you to imprisonment due to failure to vote in itself. But failing or refusing to pay the fine can have different outcomes.
Having a Valid and Sufficient Reason for Not Voting?
Can you go to jail for not voting in Australia when you have legitimate reasons for failing to vote? What constitutes valid and sufficient reasons differs on a case-by-case basis. It will depend on the DRO to assess the circumstances of each case and put into consideration decisions in past cases, if any.
One of the leading cases covering this issue is the decision of the High Court of Australia in Judd v. McKeon [1926] HCA 33, where Justice Isaacs held:
"A "valid and sufficient reason" means some reason which is not excluded by law, and is in the circumstances a reasonable excuse for not voting.. Physical obstruction, whether of sickness or outside prevention, or of natural events, or accident of any kind, would certainly be recognised by law in such a case. One might also imagine cases where an intending voter on his way to the poll was diverted to save life, or prevent crime, or to assist at some great disaster, as a fire, in all of which cases, in my opinion, the law would recognise the competitive claims of public duty.
These observations are not, of course, suggested as exhaustive, but as illustrative, in order to dispel the idea that personal physical inability to record a vote is the only class of reasons to be regarded as "valid." The sufficiency of the reason in any given instance is a pure question of fact, dependent on the circumstances of the occasion".
Hence, several valid reasons include, but are not limited to:
- sickness
- physical obstruction
- natural events
- accidents
- when a person on their way to a polling place is diverted to save life, to prevent crime, or to help in a disaster such as a fire.
So can you go to jail for not voting in Australia if you actually have a legitimate reason such as sickness or physical obstruction? Courts will accept these reasons, and you will not receive a fine for it.
Can you go to jail for not voting in Australia, and in turn face a fine for it if you were drunk the night before and slept on Election Day? Being busy during Election Day, completely forgetting to vote, having no preference for any candidate or political parties, and conscientiously objecting to vote are not valid or sufficient reasons for you not to go to that polling booth, get your ballot paper from a polling official, and drop it on the ballot box after voting in the federal election.
Ineligibility to Vote
Not all Australians who are above 18 years of age are eligible voters. Can you go to jail for not voting in Australia when you are actually ineligible to vote? You cannot face punishment for failing to vote if you were not eligible to vote in the first place.
The following are grounds that make Australian citizens ineligible to vote:
- Having an unsound mind, and determined to be incapable of understanding the reason for voting and its significance to the democratic process;
- Prison inmates serving a sentence of three years or longer; and
- Convicted of treason or treachery.
A leading case that discusses the ineligibility to vote is the case of Roach v Electoral Commissioner [2007] The High Court held that the complete ban on prisoners voting (regardless of the crime committed or length of their imprisonment) was unconstitutional and inconsistent with the principles of representative government.
The Court held that while it was legitimate to exclude long-term prisoners on the basis that they had broken their contract with society, the disenfranchisement of short-term prisoners was arbitrary and not a proportionate measure of criminal culpability.
However, in the case, since Vicki Lee Roach was serving a prison term of longer than three years, and the original provisions of the Electoral Act were upheld, Ms Roach was still declared ineligible to vote. After the Roach decision, the minimum sentence at which prisoners may be disenfranchised at the federal level is three years. Some states have a different threshold; in the Victorian local elections, prisoners are excluded from voting if they are serving sentences of more than five years.
In addition, authorities do no issue penalty notices to persons who:
- are dead
- were absent from Australia on polling day
- were ineligible to vote
- had a valid and sufficient reason for failing to vote.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.