Wednesday, 4 April 2012

There is a legal challenge currently

underway in our local Supreme Court. Someone is challenging the $20 fine and conviction he received for not voting. He deliberately did not vote in order to bring the issue before the courts.
It is a challenge which is long overdue. It will almost certainly fail but it raises some serious questions about the Australian electoral system.
There is a widespread belief that Australia has a "compulsory" voting system. That is both correct and incorrect. Let me explain.
Australians have a right to vote under the Constitution. That has, rightly or wrongly, under the Electoral Act been interpreted to mean that (a) you must enroll to vote, (b) on polling day you must turn up at a polling station in your electorate (or cast an absentee vote) and (c) you must mark the ballot papers you are given correctly and put them in the boxes.
Nobody can actually force you to mark the ballot papers of course because the voting is done in little booths and only you are supposed to know what you have done.  (Someone was prosecuted once for actually failing to mark the papers. He took them and placed them straight into the boxes without going into a booth.)The voting process, as laid down by the Electoral Act, is where what is seen as the compulsion to vote lies.
This is being challenged as being in contradiction of the constitutional right to vote.  It is argued that the "right" has become a "duty" and is therefore invalid.
It will be interesting to see how the courts deal with this argument. The judge in the Supreme Court has already indicated that he may just refer the matter directly to the High Court. It may well be a wise move. The High Court has previously indicated that failure to mark the ballot papers is an offence under the Electoral Act although the Electoral Commission apparently thinks otherwise. The validity of the Electoral Act however has not been brought into question.
Anyone who reads this blog regularly will be aware of the fact that I do not believe anyone should be compelled to vote and there is no such compulsion. I do believe it is our right to vote and that we have a duty to do so once we have informed ourselves about the issues and the candidates. I am strongly opposed to compulsory preferential voting - which is what we have. It is, quite simply, wrong to require people to mark any preference for people whose policies they do not approve of. If they wish to cease making a choice after their first candidate that should be their affair. I know that others do not agree.
The question in front of the courts now though is an interesting one. It will be interesting to see how the High Court twists language in order to preserve the status quo - and what effect that might have elsewhere in the world.


the fly in the web said...

Should this pass to the High Court, is there the possibility that the Electoral Commission might have a watching brief or act as amicus curiae?

Anonymous said...

The right of the Electoral Commission to administer a fine for failure to vote is being challenged. Chris