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Compulsory enrolment and voting

In Australia, the franchise might better be described as a duty to vote, rather than a right. Under the Commonwealth Electoral Act and the related state laws, voting is compulsory in Commonwealth, state and territory elections. Voting is also compulsory in local government elections, except in South Australia, Western Australia and Tasmania.

In practice, compulsory voting means eligible voters must attend a polling place, have their name crossed off the list of voters, accept ballot papers and lodge them in a ballot box. They do not actually have to fill out the ballot papers. If ballot papers are not filled out correctly, they are set aside as ‘informal’.

In purely practical terms, compulsory enrolment and voting work in Australia. The Australian Electoral Commission spends a considerable amount of time and money ensuring eligible people are enrolled and that they are able to cast a vote on polling day or beforehand. The Australian Electoral Commission staffs a large number of polling places in each electorate during polling day. Voters who cannot attend a polling booth on polling day can still vote by casting a postal vote or a pre-poll vote in the period after nominations to contest the election close. The Australian Electoral Commission provides mobile polling services for hospitals, prisons and remote parts of Australia before polling day to allow eligible voters in these places to vote.

Voter Turnout

This means the percentage of eligible voters who actually vote on election day. Voter turnout would undoubtedly be lower in Australia without compulsory voting. When voting in federal elections was voluntary at the start of the twentieth century, the turnout averaged around 63 per cent. Since voting was made compulsory in 1924, the average turnout has been about 95 per cent.

What if eligible voters don’t vote?

After every election, officials send a penalty notice to those eligible voters who do not seem to have voted. If those voters do not respond by giving a ‘valid and sufficient reason’ for not voting, they are fined. For federal elections, the amount of this fine is $20. If they do not pay the fine and do not provide a valid and sufficient reason for not voting, the matter is taken to court. If the court imposes a fine and the eligible voter still declines to pay, the court may take further action, including imposing a jail sentence in some jurisdictions.

What is a ‘valid and sufficient’ reason? Officials determine this on the merits of each case, in accordance with the law as previously interpreted by the courts and using guidelines drawn up the Australian Electoral Commission. These guidelines are kept confidential to prevent people from falsely using excuses they know will be valid. In 1994, the Commonwealth Administrative Appeals Tribunal ruled that the public could not have access to these guidelines under the Freedom of Information Act(Cth). Australian Electoral Commission publications suggest that a fine would be ‘unlikely’ in the cases of ‘the elderly and frail, women in late pregnancy, or the intellectually disabled’. According to the provisions of the Commonwealth Electoral Act, a voter’s belief that it is part of her or his religious duty to abstain from voting is also considered a valid and sufficient reason for not voting.

Over the years, the courts have ruled out various reasons for not voting. These have related to political or moral objections rather than physical or intellectual incapacity. In the first important High Court case, Judd v McKeon [1926] HCA 33; (1926) 38 CLR 380, the majority of judges found that belonging to a political organisation that prohibits members from voting, or objecting to the views of all the candidates, were invalid reasons for not voting. Later cases affirmed that not having a preference among candidates, or not knowing enough to choose between them, were invalid reasons.

In September 2012, Anders Holmdahl challenged his conviction for failing to vote in the 2010 federal election in the South Australian Supreme Court. The Supreme Court dismissed his argument that voting was a right rather than a responsibility and that Australian citizens should have the choice to choose whether to vote or not. Holmdahl appealed this judgement to the Full Bench of the High Court of Australia, which dismissed his appeal in April 2013.

Is compulsory voting unique to Australia?

Despite what many Australians think, the answer is ‘no’. Compulsory voting backed up by a fine or other sanctions is found in a number of other countries at national, regional (state) and/or local levels, including:

 

Argentina Belgium Bolivia Brazil
Cyprus Ecuador Egypt Liechtenstein
Luxembourg Nauru Paraguay Peru
Singapore Switzerland Turkey Uruguay

These countries are quite varied. They include relatively new democracies as well as long-standing ones. They include countries that generally respect individual liberties as well as countries with a poorer record on this score. In some of these countries (e.g. Belgium), compulsory voting is mandated by the Constitution. In others (e.g. Singapore), it is prescribed by ordinary legislation, as it is in Australia.

Compulsory voting is enforced by a variety of measures. Brazil and Ecuador, like Australia, fine individuals who have not voted without reason. In Belgium, individuals are removed from the electoral roll if they have not voted in four elections within 15 years and citizens in Peru and Bolivia must carry a voting card to access some services.

Some countries, such as Austria, the Netherlands and Venezuela, have used compulsory voting in the past but have since switched to voluntary voting. In other countries compulsory voting has been raised as a remedy for perceived problems in voting. When the turnout among elgible voters fell below 60 percent in the 2001 UK General Elections, for example, some British commentators called for an examination of compulsory voting to increase both citizen participation and party responsiveness to electors.

How We Got Compulsory Enrolment and Voting

The Commonwealth first introduced compulsory enrolment in Australia in 1911. Compulsory voting came soon after, first in Queensland. The motives for its introduction there in 1914 had to do with party politics rather than high principle. Digby Denham’s Liberal Government believed that it would lose office at the 1915 election because its disenchanted supporters would stay away from the polls, while Labor’s supporters would turn out in large numbers. Compulsion was introduced to try to force more Liberal voters to the polls. The plan succeeded in raising voter turnout, from 75 percent in 1912 to 88 percent in 1915. It failed, however, to save Denham’s Liberals, who lost to Labor.

In 1924, the Commonwealth Parliament legislated for compulsory voting at federal elections. The bill to make the change was sponsored by E. Mann in the House of Representatives and H. Payne in the Senate, one of the few private members’ bills (that is, bills not put forward by the government of the day) ever to pass through the Commonwealth Parliament. Although some parliamentarians spoke against the measure, it attracted very little debate and was passed quickly in both houses without a division.

The remaining states gradually introduced compulsory voting for at least their lower houses of parliament over the next two decades. The last state to fall into this pattern was South Australia, in 1942. Some elements of voluntary voting, however, remained until the 1980s. Aboriginal people were not compelled to enrol or vote in federal elections until 1984. Voting for the South Australian Legislative Council remained voluntary until 1985.

State and Commonwealth governments generally have not considered a return to voluntary voting. However, in January 2013 the Queensland State Government released a discussion paper on electoral reform that considers the option of removing compulsory voting for Queensland elections. While Labor Prime Minister Julia Gillard publicly opposed the suggestion, a number of prominent Liberal parliamentarians (including Eric Abetz and Julie Bishop) supported voluntary voting. Their commitment to voluntarism rests on principles like individual freedom (see Compulsory voting - for and against). It may also have to do with the questionable assumption that voluntary voting would advantage the Coalition over the Labor Party.

Enrolment procedures

For a long time, Australian electoral law has required eligible people to enrol themselves to vote and to update their details on the electoral roll if they moved address. While these requirements still exist, in July 2013, new ‘automatic enrolment’ laws came into effect. These gave the Australian Electoral Commission the power to enrol people that they believed to be eligible voters and to update their details on the roll, using data collected by other government agencies. The Commission contacts individuals who are enrolled in this way to ask them to confirm their details. Due to this automatic enrolment process, the number of unenrolled eligible voters has fallen from ten per cent to six per cent since the 2013 election.

Over the past three decades, some commentators have claimed that Australian enrolment procedures are too lax and allow for fraudulent voting. The Coalition has been generally sympathetic to these claims and the Howard Government attempted several times to restrict enrolment. Its first reform, introduced via 1999 legislation, meant that Australians had to provide specific forms of identification (a passport or driver’s licence) or a written witness statement before they could enrol themselves and whenever they changed their enrolment details. These requirements still exist today for people who want to enrol themselves.

The Howard Government’s second reform to electoral enrolment was less successful. In 2006, it amended federal electoral law so that, instead of having seven days to get on the electoral roll after the election writs were issued, no one could be added to the roll after the day of the writs. At the 2010 election, the Human Rights Law Resource Centre and GetUp! took a case to the High Court on behalf of about 100,000 Australians whose enrolments were not allowed under the new laws. The High Court declared the amendments unconstitutional, effectively reinstating the seven day enrolment period. GetUp! argued that the amendments meant many young people would have been disenfranchised, while Coalition parliamentarians argued that the large number of applications in the seven day period left too little time to check for fraudulent enrolments.

Enrolling online

Until recently, federal electoral enrolment had to be completed using paper forms with written signatures. In 2010, the activist organisation GetUp! successfully ran a case to pave the way for electronic enrolment. In GetUp Ltd v Electoral Commission [2010] FCA 869, the Federal Court declared that an application for enrolment generated with an electronic signature was valid for the purposes of the Commonwealth Electoral Act. It is now possible to enrol via an electronic form on the Australian Electoral Commission’s website.