Orr, Graeme --- "Choice of the manner in which thou wilt die': the Australian courts on compulsory voting" [2019] UQLRS 3

‘Choice of the Manner in which Thou Wilt Die’: The Australian Courts on Compulsory Voting

Graeme Orr, Law School, University of Queensland^[*]

Compulsion requires law: legislative parameters and institutional enforcement. Across Australia the compulsory voting regimes are similar. Electoral authorities administer infringement notices for failure to turnout (but rarely for failure to enrol) without a reasonable excuse. And legislation sets a graded penalty process, with a modest fee to expiate the infringement but a higher fine and risk of a recorded conviction if the notice is unsuccessfully contested.

To legal realists, the law is what the courts ultimately hold it to be. In that tradition, but also recognising the sometimes contested idea of compulsion, this paper focuses on the judicial norms of compulsory voting in Australia.

These norms can be derived from two classes of cases. The first are decisions, from courts elevated in the hierarchy, about why compulsory voting is constitutionally legitimate. These decisions have survived a turn from respect for parliamentary sovereignty over electoral law towards implied political rights and freedoms. Is this merely judicial pragmatism, given how entrenched and popular compulsion is in Australian electoral practice? Or does it reflect a justification of compulsion, a normative conception of what representative democracy ought involve?

The second class of cases involve (typically) lower courts reflecting on what amounts to a ‘valid and sufficient reason’ for not turning out to vote, including discretion to forgive an offence. Since compulsion is not just a high-level norm, but a practice, these cases too help us understand what the law imagines it is compelling electors to do or be, and why.

Ultimately the courts have been remarkably supportive of compulsion, albeit with a bleakly realist, rather than positive, vision of the role of compulsion in electoral democracy. That bleak conception is captured by behaviourist ideas of forcing choice amongst options where an elector may have no sincere preference. Voting becomes a matter of endorsing the lesser of a set of evils akin (in a literary phrase borrowed by the High Court) to choosing the manner of one’s death.

Electoral Compulsion in Australia: A Potted Legal History

The idea of compulsory participation in public affairs is nothing new, as jury duty attests. When it comes to political decision-making, those of a classical mind sometimes invoke the use of the red-cord, to herd or at least confine Athenian male citizens to participate in public deliberation in the agora. In Australia, compulsory voting was mooted as early as 1861.^[1] After a 50 year gestation period, when reform came, it came fairly quickly and with limited fuss. At the national level compulsory enrolment was enacted in 1911, invoking the language of the franchise as a ‘duty’.^[2] By 1915 compulsory voting was ALP policy and endorsed by a Royal Commission.^[3] None of this was mere rhetoric. Legislation passed that would have tested compulsory voting at referendums to be held in 1915.^[4] At the end of the previous year, a Liberal government in Queensland had enacted the first compulsory voting law in the continent. Within nine years the Commonwealth parliament had done the same, rapidly and almost unquestioningly.^[5] All States and Territories have adopted compulsory voting for parliamentary elections. Compulsion is a patchwork however at local government level.^[6]

For such a contested concept, the statutory law defining the practice has been remarkably stable and (perhaps deceptively) simple. The 1914 Queensland progenitor declared ‘It shall be the duty of every elector to record his vote’.^[7] Any registered elector who failed to turnout was invited to give a ‘true reason’. They were excused if the returning officer judged it a ‘valid and sufficient reason’. (If not, the elector could pay a lesser penalty to expiate the matter or risk being charged for an offence with a maximum fine of two pounds).^[8] The wording used by the Commonwealth for the 1915 referendum gambit was similar, but compulsion did not apply to electors who lived ‘five miles’ from any polling station. Electors’ reasons were also to be witnessed. The five mile dispensation was dropped from the law that ultimately applied to Commonwealth elections after 1924. It stipulated a flat penalty of two pounds.^[9]

The statutory law has not evolved much in the century since, although the Commonwealth provision is 40% wordier. The main change has been to set the penalty to expiate an infringement notice at a low $20, whilst tethering the fine on conviction to the generic and floating penalty unit (currently $210). Other reforms of substance have been to explicitly recognise ‘religious duty’ as an excuse and, in a modern version of the old ‘five mile’ dispensation, to automatically exempt overseas and itinerant electors.^[10] All States have adopted compulsory voting for parliamentary elections, South Australia in 1942 being the most recent. South Australia is the one jurisdiction where (libertarian) opposition to compulsion has been prominent. It reached its apogee when a Liberal government repeal bill failed, by just one vote, to pass its Upper House in May 1994.^[11] Compulsory enrolment did not even reach South Australia until 2009.^[12] States tend today to have higher expiation fines. They also have tended to streamline the language of ‘duty’ to vote to the blander and blunter edict ‘shall’ or ‘must’ vote.^[13] Compulsion, it also must be noted, remains a patchwork at local government level.^[14]

Whilst endemic for parliamentary elections in Australia, compulsory voting is not, on the whole, hard-wired into constitutional law. This makes sense, for two reasons. The Australian Constitution was adopted via referendums in the colonies. These were held under voluntary voting. In any event whilst a written Constitution was essential in a federal nation, the framers inherited British assumptions about the value of political constitutionalism and parliamentary sovereignty. The intention was to leave power to parliaments to evolve the law, even on sensitive topics like elections.^[15] Not for Australia a Bill of Rights overseen by judges, but a faith that rights would be achieved via a system ‘ensuring, as far as possible, to each a share and an equal share, in political power’.^[16] That said, State parliaments can entrench aspects of parliamentary and electoral law, making it harder for a future parliament to change. To undo compulsory voting in New South Wales, for instance, now requires a referendum,^[17] putting compulsion on a par with the principle of bicameralism.

At this juncture, we shall leave the statutory law behind. The rest of this chapter will focus on judge-made or case law. Before doing so, it is worth noting that from 1992, the High Court has embarked on a journey of judicial creativity in the field of the law of politics. It has done so by implying some bedrock values out of the text and structure of the Constitution. These values can be used by the Court to strike down laws, in other words to limit parliamentary power to frame the law of politics and elections. In temporal order these values are: a freedom of political communication (and, relatedly, political association);^[18] a universal franchise (subject to rational exceptions);^[19] and, most recently, a nascent equality of opportunity to participate.^[20]

The Courts on Compulsion

When Australian courts have been required to consider compulsory voting, two types of questions have been the focus of litigation. One, more general and obviously normative, concerns the constitutional status of compulsion. These arguments tend to be run in the higher, appellate courts. The other, more particularistic, concerns what amounts to a valid excuse for not voting. These arguments can filter up to the higher courts but more often are resolved in the lower courts, dealing with charges at first instance. But, along the way, a third intermediate question has arisen, namely whether the law really compels voting or mere turnout. (The better answer is mere turnout, given the secrecy of the ballot. The question is hoary and of little practical import; but we will briefly consider it to see what it reveals about the tension between idealism and realism).

The High Court on the Constitutionality and Defensibility of Compulsion

At the 1925 national election – the first under compulsory voting – Mr Judd was enrolled but did not vote. Judd was a member of the Socialist Labour Party. His excuse for not voting was ideological and systemic. He could not vote for a party unless it promised to institute a socialist state; and his party, given its limited support in the community at the time, could not afford the ‘unjust penalty of £25’ for every candidacy deposit lost.^[21] Judd was fined for not turning out. On appeal, a judge of petty sessions upheld the conviction, holding both that compulsion was within parliament’s power to regulate elections, and that Judd’s excuse did not fit within a paradigm of physical problems preventing him from polling.

Judd persevered in the High Court, to press both points. Lest his tilt against compulsion be seen as the work of someone with a bee-in-the-bonnet or an anarchic impulse, it is notable that he brought the appeal whilst the ink on the law was barely dry. (The national law being barely two years old). And Judd employed distinguished senior counsel, in Dr Lt-Col EM Brissenden KC MBE. (As the titles suggest, Brissenden had served the Empire in WW1; he was also described as having a ‘catholicity of ... personal interests in life and study’).^[22] Before the Court, Brissenden pointed to the constitutional requirement that MPs be ‘chosen’ by the people. He argued that this required a voluntary franchise, on two grounds. Literally, that a right to vote embraced a right not to vote since ‘choice’ implies a positive desire to elect a particular candidate. And also via original intent approaches to interpretation. When the Constitution was drafted, the framers understood elections as only involving a voluntary franchise.^[23]

All six High Court justices who heard the case rejected these arguments. The power given to parliament to regulate its own elections, including to set the method of electoral choice, was ‘plenary’.^[24] This reflected the prevailing assumption that the Constitution was a framework for dividing up governmental power, not a charter of limitations on that power. This channelled the British idea of the political constitution, as opposed to a juridical constitution subject to a bill of rights.^[25]

Had the Court merely reiterated that it was not its role to gainsay parliamentary decisions, even on matters as fundamentally sensitive – or politically self-interested – as electoral law, the case would have been of limited interest. But the Court went further, when it delved into the murkier terrain of linguistics. The majority judgment said that ‘choice’ did not mean expressing a desire. Rather it meant ‘no more than to make a selection between different things or alternatives’.^[26] This behaviourist, non- subjectivist, notion of choice would seem natural if applied to a shipwrecked vegetarian having to choose meat over starvation. It is less obvious where the choice is about parliamentary representation. The majority even found support in a usage referenced in the Oxford English Dictionary: ‘I have given thee thy choice of the manner in which thou wilt die’. This morbid line originated in the mouth of a vengeful genie in the Arabian Nights.^[27]

Justice Isaacs made a more explicitly policy-oriented attempt to rationalise compulsion. He invoked the ancient notion of free elections,^[28] and said that the idea of electoral choice merely meant that the system was open to multiple potential candidates. Otherwise, ‘compulsory performance of a public duty is entirely consistent with freedom of action in the course of performing it’.^[29] He analogised with compulsion in jury and military service. He also drew a parallel between voting, and juridical decision-making. Judges must deliver an order resolving each case presented to them, but they have freedom in how they arrive at each decision. Justice Rich also echoed the language of the franchise as ‘not merely a right but a duty’, and mused that political choice was necessarily imperfect. ‘Human affairs ... are not so much concerned with the ideal and unattainable but the practical and possible...’.^[30] Compulsion for its own sake may seem gruelling, but Isaacs gave a clue to the bigger purpose when he observed that a ‘community ... may properly do all it thinks necessary to make elections as expressive of the will of the community as they possibly can be.’^[31]

45 years after Judd’s case, a Mr Faderson tried his luck in the High Court, having not voted at the 1970 half Senate election. Faderson too was out of luck, in his appeal against conviction, before a High Court bench of three. Faderson did not attempt a frontal assault on the constitutionality of electoral compulsion, and the case was plead by junior counsel on both sides. Instead, Faderson argued that he had considered the candidates on offer and could come to no preference between them. That admission alone meant that Faderson could not be excused (as we shall see, including by analogy with Judd’s socialist objections). Indeed the bench thought the matter so clearly foreclosed that it did not hear from the barrister representing the electoral authorities.^[32]

However the judgment went broader. Interestingly, it was written by Chief Justice Barwick. Until seven years before, Barwick had been a (Liberal) MHR and Attorney-General of Australia, in other words a practising politician steeped in electoral law and culture, as well as the party culture in which compulsion was, if not an article of faith, then certainly one pragmatically embraced. In his judgement, Barwick developed the idea that choice may just be a case of holding one’s nose:

However much the elector may say he has no personal preference for any candidate ... he is not asked that question ... He is asked to express a preference amongst those who are available for election, that is, to state which of them he prefers, if he must have one of more of them as Parliamentary representatives, as he must ... To face the voter with a list of names ... none of whom he may like or really want to represent him to indicate a preference amongst them does not present him with a task that he cannot perform.^[33]

This fascinating passage speaks with two voices. The sting in the tail is a behavioural injunction: just choose, damn you. Put kindly, this is an injunction to go back to the drawing board and reconsider the electoral landscape and your values until you can find any reason to prefer one option over the other. (Remembering that, from 1919, a formal vote required full preferences. Indeed in the Senate, after 1934 and until the simplified party-vote option was introduced in 1984, this could involve having to rank many dozens of candidates). Barwick even borrowed from a Victorian judge the line that in politics ‘[j]ust as perfection is unobtainable, so too is complete imperfection. The gradation of de-merits [in candidates] is infinite and so no one individual will compare identically with another’.^[34] At its worse, Barwick could be read as inviting electors to ‘donkey vote’ by blindly ranking candidates.^[35] In Barwick’s defence, he wasn’t inviting donkeys since he prefaced his judgment by reminding electors that they could vote informally.

Before the ‘just choose, damn you’ sting in the tail, Barwick offers a more realist rationale for supporting compulsion. This rests on the inescapability of representative government, distilled in the line that we ‘must’ have some of these candidates as our MPs. This way of justifying compulsion takes the edge off frankly negative analogies with, say, military conscription. It points, potentially, to a more positive idea that government is a social good. But Barwick, a blunt jurist, did not develop this by drawing on political philosophy. (Indeed in a later case he refused to read ‘one-vote, one-value’ into the constitution, dismissing it as a ‘mere political slogan’).^[36]

Compulsion Trumps Implied Freedoms

The third and final significant appellate case on compulsion as a normative question, was brought by a Mr Holmdahl, in 2012. Holmdahl’s case was thus 86 years after Judd’s and 41 years since Faderson’s. One could be forgiven for thinking the question recurs inter-generationally; however there was a major legal development to justify this case. From 1992, the High Court had modified the idea of the political constitution and, in electoral law particularly, had embraced a practice of implying certain values from the Constitution. These included first order liberal values such as ‘freedom of political communication’ and a ‘universal franchise’. They were read into the Constitution as being necessarily implied by its text (the mandate that parliament be ‘chosen by the people’) and its structure (the idea of representative government embedded in the document).

Academics of a liberal bent had already begun arguing that the discovery of a freedom of political communication, and constitutionalisation of a ‘right to vote’, cast ‘serious constitutional question marks’ over compulsory voting.^[37] The main new argument was that voting was an act of political expression. Legislation unduly infringing on such expression was now constitutionally invalid, and compulsory involvement in elections fell into that category. A related, if less novel, argument was that voting was no longer constitutionally framed as a privilege granted by parliaments. As a constitutionally recognised right it should carry a correlative freedom to not vote.

Holmdahl’s case reached the Full Court of the South Australian Supreme Court.^[38] (Coincidentally or not, as noted earlier South Australia has been the focal point of libertarian advocacy for voluntary voting). Holmdahl had been convicted after consciously declining to turnout at the 2010 national election. As in Judd’s case he challenged both the constitutionality of compulsion, and the finding that he had no excuse. Writing for a bench of three, Gray J recounted the earlier case law that ‘chosen by the people’ meant a popular vote, with a ballot open to a broad range of potential candidates. It did ‘not require a particular electoral system’.^[39] This much fitted the traditional idea that parliament has a broad leeway to craft the rules of electoral democracy.

As to whether any implied freedom or right to vote contradicted compulsion:

It is difficult to understand how the obligation to enrol and the obligation on an elector to vote could detract from ... representative democracy. [Rather it] provides a relevant system in contemporary times to ensure that Australia is a representative democracy.^[40]

That final line reads like a positive endorsement of compulsion. If so, this is a contemporary court going beyond merely pleading institutional competence (ie it goes beyond simply resolving the case by ceding parliament a broad leeway to shape electoral rules as parliament pleases). And going beyond just reciting earlier judicial analysis that a liberty right can also be an obligation. The Court also appears to be endorsing compulsion as a relevant manifestation of a modern democratic system.

Judges are normally very wary of appearing to endorse policy choices by parliament: they stress it is not their role to reflect on the wisdom of such choices. But judges cannot abstract themselves from shared social realities. Compulsion (as other papers in this volume may attest) has had a century’s use in elections in Australia. Decades of opinion polling and cross-party support has practically entrenched it into the landscape of electoral law and practice. The High Court itself has appealed to ‘community standards’, which it divines from long-standing laws and policies. It did so in the 2000s in enshrining universal suffrage in the Constitution, to the point of protecting voting rights for short term prisoners and insisting on a grace period to enrol after an election has been called.^[41] This process has led some, like Twomey, to speculate whether, given its long and widespread usage, compulsory voting could be argued to have become constitutionally implied.^[42] (This seems doubtful. But if it were to be held to be now a necessarily, implied part of the Constitution, it would take a major empirical shift in its efficacy for the national parliament to justify undoing it).

‘Valid and Sufficient’ Excuses for Not Voting

Just as one can work from thesis to praxis, one can also work from praxis to thesis. It is not only in constitutional cases or in the highest courts that judges have reflected on the normative basis and meaning of compulsory voting. This also can occur when judges decide whether to excuse an elector or quash a conviction and fine. In Judd’s case, the majority rejected the socialist objection to voting as beyond the pale, ‘an objection to the social order of the community’.^[43] Isaacs suggested that a valid excuse required some physical or legal barrier. Physical barriers went beyond ‘personal physical ability’ and included ‘physical obstruction, whether of sickness or outside prevention, or of natural events, or accident of any kind’ including having to attend to others in need.^[44] Yet whilst stressing that their examples were illustrative, not exhaustive, a paradigm of necessity was erected.

Only Justice Higgins dissented. Physical or legal hurdles cannot be the only one’s permitted, else that would require some electors to disavow their religious creed (like Jehovah’s Witnesses).^[45] A reason was ‘valid’ if its character was acceptable, and ‘sufficient’ if it was a strong one in the context: so caring for an ill family member would be a valid reason, but only a sufficient one if the illness was significant.^[46] (Similarly, a lack of secrecy at a particular polling station might be a valid and sufficient reason to refuse to vote, but an elector who simply disagrees with the law about what secrecy must entail lacks a valid reason.)^[47]

Higgins would have excused Judd, because his objections were sincere and deeply felt. His Honour felt it was no part of a court’s role ‘to say what political or social opinions are ... reasonable’.^[48] Such a spirit of liberality has, however, rarely been repeated.^[49] Thus, when Faderson claimed he could not distinguish between the candidates on offer, he was not excused. On the contrary, Barwick equated this claim to Judd’s disapproval of all electoral options, and echoed Justice Isaacs’ rejection of such excuses as ‘an open challenge to the very essence [of the law compelling voting]’ that would render compulsory voting ‘practically impossible’.^[50]

The High Court, in short, has buttressed compulsion by repelling excuses grounded in any paucity of suitable electoral options. So electors citing failures of politics are still convicted, alongside those who simply forget that an election is being held. In an ACT case the elector complained of a paucity of information about the candidates and objected to having to vote for ‘total strangers’.^[51] In another case, a Rockhampton man objected that:

the main problems of the day, such as the environmental crisis [are not treated as serious issues]. Instead we have been treated to mudslinging, noise pollution, tree desecration and polemical discussions of trivia. An informal vote is not an effective means of registering my protest...^[52]

A magistrate relieved him; the Supreme Court insisted he be convicted. Such excuses, as we have seen, have been equated to civil disobedience against the system of representative electoral democracy itself. What is really meant is that such excuses would be hard to police and the resulting fissure could threaten the goal of compulsion itself. In truth, we have more sympathy for the Judd or Faderson who, at a particular election tries to align themselves with a party or candidate on offer, but cannot. But we have less time for the person who expresses total cynicism for electoral democracy as a system.

Here we find another reason to not analogise between electoral and military conscription. A conscientious military objector has to be a pacifist, against all war. They cannot just object to a particular war as unjustified. A reason for the difference concerns what is compelled. In electoral practice, it is merely turnout. (In military conscription there is no equivalent option of just signing on and going through the motions of training). Justice Crockett of Victoria, in 1970, suggested that compulsory voting law was ‘not compelling a man “to tell a lie”. To record an informal vote is not an offence.’ ^[53] A year later Barwick declared that ‘there is no offence committed by not marking ... a valid vote’.^[54] Each of these were cases where the elector averred that they had no electoral preference to offer. Occasionally judges have disagreed. In doing so, one ‘heretical view’ that the mandatory language of the legislation means that an elector who does not complete their ballot formally commits an offence.^[55] But given secret balloting and its respect for conscience, any offence is unprovable. Even if someone confessed, bragged or (as is becoming common) took a selfie of their casting an informal ballot, an attempted prosecution would ‘be something of an absurdity’.^[56]

Parties of course fear high levels of informality. Those elected lose a little legitimacy; small parties leverage over preferences is diluted; and parties receive less public funding.^[57] South Australia is the one jurisdiction where the legislation explicitly clarifies that non-one is obliged to mark their ballot: and this is spelt out on the ballot paper itself.^[58] Where computerised voting has been adopted, electors are not compelled to cast a formal ballot either.^[59] In short the law compels turnout, not voting as such, and at most exhorts people to cast a valid ballot.^[60]

The ‘physical or legal’ hurdle to turning out, laid down in Judd’s case, left some uncertainty about religious objections.^[61] This was cured with explicit provisions, like the one for national elections:

without limiting the circumstances that may constitute a valid and sufficient reason for not voting, the fact that an elector believe it to be part of his or her religious duty to abstain from voting constitutes a valid and sufficient reason...^[62]

The language pits a religious ‘duty’ against the legal ‘duty’ and requires the latter to give way. Judges however have been wary of this provision, lest it become a backdoor method for philosophical objections to compulsion undermining the very object of the law. To suture against this, it is not enough for a non-voter to cite philosophical commits to liberty.^[63] It is not even enough to have a spiritual objection, unless that is founded in a recognised religious creed that holds taking part in elective democracy to be morally objectionable.^[64]

There are other ways to skin the cat however. Magistrates, acting below the radar of reported cases, may have leeway in relation to penalties. This may sound odd in the context of laws providing that the offence of non-voting is ‘strict’ or ‘absolute’ liability. The onus on a citizen contesting the electoral commission’s records or seeking to establish a reasonable excuse, can be heavy. But whilst laws against non-voting feels structured like regulatory or traffic offences, with set and low penalties, they remain criminal offences. The consequences of a conviction being recorded on, eg travelling to some countries is not to be sneezed at. Recently, a NSW Magistrate accepted a guilty plea but dismissed the charge. The non-voter was able to show a publicly held and principled objection: not to voting as such, but against voting in city council elections where corporations held multiple franchises.^[65] That kind of leniency depends on discretionary factors and on the sentencing law of the state or territory allowing for charges to be found proven but dismissed, or convictions to not be recorded, in minor cases with extenuating circumstances.

Conclusion: The Courts on the (Grudging) Side of Compulsion

What can we draw from this body of case law on compulsory voting? The headline lesson is how supportive the Australian judiciary has been. Not for them the liberalism of the ‘common law bill of rights’, which once inspired judges to downplay purposive readings of legislation (and especially criminal offences, of which failing to turnout is one) in the interests of first order liberal values like the freedom of the subject.^[66] Nor have judges displayed any antipathy to compulsion as a principle, despite the implication of liberal values such as freedom of political communication from the fabric of the Constitution.

Weaving the judgments on compulsion together reveals several normative strands of thinking. The first lies in the realistic, if bleak, language of political choice as if it were about lesser evils, comparable to choosing the manner of one’s death. Another is found in co-option of the notion of ‘duty’. Analogies in Judd’s case with compulsory military service are rhetorically interesting, to say the least, given the potency of the conscription question just a decade earlier. (They are also odd in that the point of conscription was to require sacrifice, for the utilitarian good of the whole, against the will of the individual conscript. No-one is sacrificed through electoral participation.) Analogies with judicial and jury duties have proven more durable, given that they, like elections, are part of a collective process of law-making and enforcement.

Judges have, it must be said, been reluctant to sketch explicitly positive rationales for compulsory electoral choice, especially in cases based on national electoral law. Why? One reason may be that, even when interpreting the Constitution – dubbed a ‘small brown bird’ by Justice Keane, in contrast to the soaring ‘eagle’ of the US and its Bill of Rights – Australian judges avoid poetic visions and tend to hew to ‘strict and complete legalism’.^[67] Another is simply a cultural tendency to cynicism about electoral politics. Judges are humans and absorb some of that; and they also form an elite, who shape law through a particular kind of deliberation which some of them feel is superior to the processes of the political branches.

A third reason may concern the ongoing tussle between ‘full’ and ‘optional’ preferential voting in Australia.^[68] In 1996, in Langer’s case, the High Court upheld the law requiring full preferential voting at national elections.^[69] It did not endorse such laws; it merely accepted parliament’s power to mandate the ranking of all candidates on offer, if an elector wished to cast a valid vote. Full preferential voting laws rather assume the idea of ‘infinite gradations’ between parties or candidates and milking, from supporters of minor parties or protest voters, a preference between the two major parties. If judges embraced a vision of compulsory voting in which voters focused on their most favoured electoral choice, they might be seen as endorsing optional preferential voting.

There is a need, however, to draw a line between the grudging language of ‘duty’, or of representatives we ‘must’ have, and the language of government as a constructive enterprise. One assumption behind compulsion is that turnout is important for the legitimacy, if not the survival, of government under electoral democracy. Legitimacy is a good worth considering, but it is a statist justification for compulsion. What is missing is an explanation of the shared value of prompting as many electors as possible, even on pain of a fine, to make a habit of having an electoral say. Isaacs’ embrace of the idea that elections should be ‘as expressive of the will of the community as they possibly can be’ offers the necessary bridge. So too does the insight, in Holmdahl’s case that, far from detracting from ‘representative’ democracy, compulsion may enhance it.^[70] Voting in representative elections is not, after all, in the same basket of resented, inevitable phenomena such as death and taxes.

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^[*] Paper commissioned for ‘A Century of Compulsory Voting in Australia: Genesis, Impact and Future’, Monash University, 5-6 June 2019. Redelivered at ERRN Workshop, Melbourne University, 16 July 2019.
^[1] Judith Brett, From Secret Ballot to Democracy Sausage (Text, 2019) 93.
^[2] Neil Gow, ‘The Introduction of Compulsory Voting in the Australian Commonwealth’ (1971) 6 Politics 201, 203-5. See also Sarah John and Donald de Bat, ‘Australia's Adoption of Compulsory Voting: Revising the Narrative – not Trailblazing, Uncontested or Democratic’ (2014) 60 Australian Journal of Politics and History 1.
^[3] Ibid, 206.
^[4] The referendums were aborted.
^[5] Brett, above n 1, ch 13 and Gow, above n 2, 208-9.
^[6] Graeme Orr, The Law of Politics: Elections, Parties and Money in Australia (Federation Press, 2019) 271.
^[7] The Elections Act Amendment Act 1914 (Qld) s 18. This was quickly consolidated into the Elections Act 1915 (Qld) s 63.
^[8] Elections Act 1915 (Qld) s 63.
^[9] Commonwealth Electoral Act 1924 (Cth) s 2.
^[10] The current rule is in Commonwealth Electoral Act 1918 (Cth) s 245. For a time, Indigenous Australians were not required to enrol, nor were Norfolk Islanders required to vote.
^[11] South Australian Parliament, Hansard (Legislative Council) 13/5/1994, 1102, voting down the Electoral (Abolition of Compulsory Voting) Amendment Bill 1994. The government persisted (also unsuccessfully) with an Electoral (Duty to Vote) Amendment Bill 1995-96. Brett, above n 1, ch 15 (titled ‘Liberals Push Back’) chronicles how from 1996-2004, under the sway of senators from SA and Tasmania, the national electoral matters committee recommended an inquiry into compulsory voting and even its repeal. Neither recommendation was adopted by the then conservative government. On this and the unsuccessful push within the Liberal Party generally to return to voluntary voting, see Paul Strangio, this volume.
^[12] Until 2009 non-electors could not be compelled to enrol; but once enrolled they had to update their details.
^[13] Constitution Act 1902 (NSW) s 11B (‘shall’), Electoral Act 2002 (Vic) s 87 and Electoral Act 1985 (Tas) (‘must’), Electoral Act 1992 (Qld) s 186 (‘must not fail’), Electoral Act 2002 (ACT) s 129 (‘shall not ... fail’). Electoral Act 1907 (WA) s 106 and Electoral Act 1985 (SA) s 85 still employ the language of ‘duty’.
^[14] Graeme Orr, The Law of Politics: Elections, Parties and Money in Australia (Federation Press, 2019) 271.
^[15] GS Reid and Martyn Forrest, Australia’s Commonwealth Parliament 1901-1988: Ten Perspectives (MUP, 1989) 86-87.
^[16] W Harrison Moore, The Constitution of the Commonwealth of Australia (2^nd ed, 1910) 328-9.
^[17] Constitution Act 1902 (NSW) ss 7B and 11B.
^[18] Beginning in ACTV v Commonwealth [1992] HCA 45; (1992) 177 CLR 106. See further Joo-Cheong Tham ‘Political Participation’ and Adrienne Stone ‘Political Expression’ in Cheryl Saunders and Adrienne Stone (eds) The Oxford Handbook of the Australian Constitution (OUP, 2018) chs 40 and 39 respectively.
^[19] Roach v Electoral Commissioner [2007] HCA 43; (2007) 233 CLR 162.
^[20] McCloy v NSW [2015] HCA 34; (2015) 257 CLR 178.
^[21] Judd v McKeon [1926] HCA 33; (1926) 38 CLR 380 at 381.
^[22] ‘Dr Brissenden KC – Death Announced – Brilliant Career’, The Sydney Morning Herald, 1/11/1930, 14.
^[23] Judd’s case, above n 21, 382.
^[24] Ibid, 383. Compare Constitution ss 9 and 31 (Parliament may ‘make laws prescribing the method of choosing Senators’ or ‘relating to elections ... of the House of Representatives’) with ss 7 and 24 (each House to be ‘chosen by the people’). ‘Method’ can cover a wide array of electoral means and issues: Day v Australian Electoral Officer (SA) (2016) 261 CLR 1 at 20-22.
^[25] Harrison Moore, above n 16. For a modern restatement see Richard Bellamy, Political Constitutionalism: a Republican Defence of the Constitutionality of Democracy (CUP, 2007).
^[26] Judd’s case, above n 21, 383.
^[27] Edward Lane (tr), The Thousand and One Nights: Vol 1 (Charles Knight & Co, London, 1841) 80-84. In the tale, the table is turned on the genie, as the fisherman he was tormenting manages to bottle the genie and then threatens to make the genie choose the manner of his own disposal.
^[28] Traceable in the common law to the first Statute of Westminster of 1275, ch 5, albeit in a provision directed at crude intrusions into electoral liberty (‘there shall be no disturbance of the free elections’).
^[29] Judd’s case, above n 21, 385.
^[30] Ibid, 390.
^[31] Ibid.
^[32] Faderson v Bridger [1971] HCA 46; (1971) 126 CLR 271 at 272.
^[33] Ibid, 273 (emphasis added).
^[34] Lubcke v Little [1970] VicRp 99; [1970] VR 807 at 811 (Justice Crockett).
^[35] Something that was a particular problem prior to the introduction of party labels on ballots (also in 1984): Graeme Orr, ‘Ballot Order: Donkey Voting in Australia’ (2002) 1 Election Law Journal 575.
^[36] Attorney-General (Cth); ex rel McKinlay v Commonwealth [1975] HCA 53; (1975) 135 CLR 1 at 17.
^[37] Anthony Gray, The Constitutionality of Australia’s Compulsory Voting System (2012) 58 Australian Journal of Politics and History 591 at 591. At 608 the author comes down on the liberal side that ‘active participation in public life ... should be encouraged in ways other than unconstitutional compulsion’.
^[38] Holmdahl v AEC (No 2) [2012] SASFC 2012. This decision is echoed in Pettet v Merwe [2016] QCA 13 at 3.
^[39] Holmdahl’s case, above n 38, [30]. A point central to McKinlay’s case, above n 36.
^[40] Ibid, [71].
^[41] See Chief Justice French on ‘irreversible evolution’ in the enrolment cut-off case Rowe v Electoral Commissioner (2010) 243 CLR 1 at [20]-[22]. Such judicial endorsement of established practice can become a constitutional ratchet, inhibiting the ability of parliaments to undo established rules of democracy: Graeme Orr, ‘The Voting Rights Ratchet: Rowe v Electoral Commissioner’ (2011) 22 Public Law Review 83.
^[42] Anne Twomey, ‘Compulsory Voting in a Representative Democracy: Choice, Compulsion and the Maximisation of Participation in Australian Elections’ (2013) 13 Oxford University Commonwealth Law Journal 283 at 305-11. (Twomey does not favour such constitutional ratcheting).
^[43] Judd’s case, above n 21, 384.
^[44] Ibid, 386-87.
^[45] Ibid, 387.
^[46] Ibid, 389.
^[47] Horn v Butcher [2010] WASCA 267.
^[48] Judd’s case, above n 21, 390. Compare Lachlan Umbers (this volume) arguing that in some circumstances members of say dispossessed groups have a moral right to boycott elections that deserves protection.
^[49] Commonwealth DPP v Easton [2017] NSWLC 19 (Magistrate Heilpern). Overturned on appeal, see below n 63.
^[50] Faderson’s case, above n 32, 274.
^[51] O’Brien v Warden (1981) 37 ACTR 13.
^[52] Krosch v Springell [1974] Qd R 107.
^[53] Lubcke’s case, above n 34, 31.
^[54] Faderson’s case, above n 32, 272.
^[55] O’Brien’s case, above n 51, 16-17. Drawing on that approach a jurist argued it is ‘discriminatory’ to fine non-voters whilst waving through similarly motivated informal voters: Anon, ‘“Compulsory” Voting under the Commonwealth Electoral Act 1918’ (1985) 59 Australian Law Journal 130 at 131.
^[56] AEC v Van Moorst [1987] VicSC 270 at 6 (Vincent J).
^[57] Since public funding is paid for every valid ‘1’ vote received.
^[58] Electoral Act 1985 (SA) s 85(2) and Electoral Regulations 2009 (SA) Sch 1.
^[59] Eg NSW’s iVote system accepts incomplete ballots, whilst warning the elector the ballot will be treated as a blank: NSW Electoral Commission, Technology Assisted Voting: Approved Procedures for NSW State Elections (Feb 2019) item 6.6. There is no facility to protest more explicitly by defacing the ballot.
^[60] Orr, above n 6, 60-61. This does not mean an informal ballot is a ‘vote’ for the purpose of determining the majority needed to win an election or referendum: compare 297-98.
^[61] Blakeney v Coates [1982] WASC 262 read Judd’s case as excluding intellectual or spiritual excuses.
^[62] Commonwealth Electoral Act 1918 s 245(14).
^[63] Commonwealth DPP v Easton [2018] NSWSC 1516.
^[64] Douglass v Ninnes (1976) SASR 377 (this applied even though Ninnes was a former Jehovah’s Witness).
^[65] R v Du Rhone (unreported, NSW Local Court, Miszalski M, 20/10/2017).
^[66] Dennis Pearce and RS Geddes, Statutory Interpretation in Australia (8^th, Butterworths, 2014) ch 5.
^[67] Patrick Keane, ‘In Celebration of the Constitution’, Constitution Founders Lecture, 12/6/2008. The now commonplace term ‘strict and complete legalism’ was coined by an earlier judge, at his swearing-in as Chief Justice of the High Court of Australia: Owen Dixon (Severin Woinarksi ed) Jesting Pilate and Other Papers and Addresses (Law Book Co, Melbourne, 1965) 247.
^[68] NSW and (until 2016) Queensland both have long experience of optional preferential voting (in NSW it is constitutionally entrenched). The Commonwealth, on the other hand, has stuck with full preferential voting for the House of Representatives for 100 years.
^[69] Langer v Commonwealth [1996] HCA 43; (1996) 186 CLR 302. See also Muldowney v SA (1996) 186 CLR 352.
^[70] Compare Lisa Hill ‘Voting Turnout, Equality, Liberty and Representation: Epistemic Versus Procedural Democracy’ (2016) 19 Critical Review of International Social and Political Philosophy 283, arguing that maximising turnout enhances political equality, participation and representativeness (against claims that high turnout of low information electors dilutes good governance).