(1) An elector must
vote at any election for the whole of State electorate, and at any election
for the district for which the elector is enrolled, unless prevented from
doing so by absence from the State, or by illness or infirmity, or any
physical incapacity on the day of the election.
(2) As soon as
practicable after the election the Electoral Commissioner must ensure that
there is prepared a list of the names and addresses of the electors who were
enrolled on the roll for the whole of State electorate or the roll for the
district, as the case requires, and did not vote at the election.
(2a) A list prepared
under subsection (2) shall be certified by statutory declaration of the
Electoral Commissioner, or a person authorised by the Electoral Commissioner.
(3) A list prepared
and certified under subsections (2) and (2a) shall in all proceedings be prima
facie evidence of the contents thereof and of the fact that the electors whose
names appear therein did not vote at the election.
(4) Subject to
subsection (5), within the prescribed period after the close of each election,
the Electoral Commissioner shall send a penalty notice to each elector whose
name appears on the list prepared under subsection (2).
(5) The Electoral
Commissioner does not have to send a penalty notice to an elector if the
Electoral Commissioner is satisfied that the elector —
(a) is
dead; or
(b) was
outside the State on polling day; or
(c) was
ineligible to vote at the election; or
(d) had
a valid and sufficient reason for failing to vote.
(6) A penalty notice
is a notice in a prescribed form notifying the elector —
(a) that
the elector appears to have failed to vote at the election; and
(b) that
it is an offence to fail to vote at an election without a valid and sufficient
reason for the failure; and
(c) that
if the elector does not wish to have the apparent failure to vote dealt with
by a court, the elector may on or before the response date set out in the
notice —
(i)
if the elector did vote as required by this Act —
give the Electoral Commissioner particulars of the circumstances of the
elector’s voting; or
(ii)
if the elector failed to vote — give the Electoral
Commissioner a valid and sufficient reason for the failure; or
(iii)
pay to the Electoral Commissioner the penalty set out in
the notice (the modified penalty ).
(7) The response date
set out in a penalty notice shall not be less than 21 days after the day on
which the notice is sent.
(8) The modified
penalty set out in a penalty notice shall be an amount not exceeding $20,
unless the elector has previously paid a modified penalty under this section
or been convicted of an offence against this section, in which case it shall
be an amount not exceeding $50.
[(9), (10) deleted]
(11) If, on or before
the response date —
(a) an
elector responds to a penalty notice in the manner indicated in subsection
(6)(c)(i) or (ii) and the Electoral Commissioner is satisfied —
(i)
in the case of a response under subsection (6)(c)(i)
— that the elector did vote as required by this Act; or
(ii)
in the case of a response under subsection (6)(c)(ii)
— that the reason for the failure to vote is a valid and sufficient
reason;
or
(b) an
elector responds to a penalty notice by paying the modified penalty,
proceedings are not to
be taken against the elector for a contravention of subsection (16)(a).
(12) Subsection (13A)
applies to an elector if a penalty notice is sent to the elector and —
(a) the
elector does not respond to the penalty notice on or before the response date;
or
(b) the
elector responds to the penalty notice on or before the response date in the
manner indicated in subsection (6)(c)(i) or (ii) but the Electoral
Commissioner is not satisfied —
(i)
in the case of a response under subsection (6)(c)(i)
— that the elector voted as required by this Act; or
(ii)
in the case of a response under subsection (6)(c)(ii)
— that the reason for the failure to vote is a valid and sufficient
reason.
(13A) If this
subsection applies to an elector the Electoral Commissioner may send to the
elector an infringement notice in a prescribed form —
(a)
notifying the elector —
(i)
that the elector has not responded to a penalty notice;
or
(ii)
that the elector’s response to a penalty notice has
not satisfied the Electoral Commissioner,
as the case may be;
and
(b)
informing the elector that if the elector does not wish to be prosecuted in a
court for an alleged offence of failure to vote at an election without a valid
and sufficient reason for such failure, the elector may, on or before the
response date set out in the infringement notice, pay to the Electoral
Commissioner the penalty set out in the infringement notice (the modified
penalty ).
(13) Subsections (7)
and (8) apply, with any necessary modifications, to an infringement notice.
(14) If in response to
an infringement notice the modified penalty is paid to the Electoral
Commissioner on or before the response date, proceedings are not to be taken
against the elector for a contravention of subsection (16)(a).
(14a) If an elector is
unable, by reason of absence from his place of living or physical incapacity,
to respond to a penalty notice or to an infringement notice on or before the
response date, any other elector who has a personal knowledge of the facts
may, subject to the regulations, respond to the notice within that time, and
that response is to be treated as compliance by the first-mentioned elector
with the notice.
(15) At the conclusion
of an election, the Electoral Commissioner shall —
(a)
cause to be ascertained whether any person who failed or neglected to respond
to a penalty notice or an infringement notice is living at the address shown
in the roll; and
(b) if
he is satisfied that the person is no longer living at that address, cause the
name of that person to be removed from the roll,
and any person whose
name has been removed from the roll pursuant to this subsection shall be
required to furnish a new claim for enrolment before his name is reinstated on
the roll.
(16) Every elector who
—
(a)
fails to vote at an election without a valid and sufficient reason for such
failure (in this section the words valid and sufficient reason shall include
an honest belief on the part of an elector that abstention from voting is part
of his religious duty); or
(b)
makes a statement in response to a penalty notice or to an infringement notice
that is, to the person’s knowledge, false or misleading in a material
particular,
shall be guilty of an
offence.
Penalty: $50.
(17) Proceedings for
an offence against this section shall not be instituted except by the
Electoral Commissioner or an officer thereto authorised in writing by the
Electoral Commissioner.
[Section 156 inserted: No. 10 of 1936 s. 3;
amended: No. 63 of 1948 s. 23; No. 58 of 1951 s. 20; No. 33 of 1964 s. 38; No.
68 of 1964 s. 30; No. 28 of 1970 s. 16; No. 70 of 1973 s. 8; No. 123 of 1982
s. 2; No. 9 of 1983 s. 22; No. 40 of 1987 s. 84; No. 79 of 1987 s. 71 and 77;
No. 43 of 1996 s. 23; No. 36 of 2000 s. 28(1); No. 64 of 2006 s. 41; No. 35 of
2012 s. 28; No. 20 of 2021 s. 82.]