Is there a fine for not voting Australia? In some countries, voting is not mandatory. But in Australia, compulsory voting is a legal duty.compulsory voting is a legal duty. All Australians who are over 18 years of age must vote.
Voting has been made compulsory in Australia since 1924. But what if you haven’t voted in a while, or skipped voting in a recent election? You may receive an apparent failure to vote notice. If so, what is the fine for not voting in Australia?
The Electoral Act 1918 (see here) governs the voting laws of Australia. This article will discuss the fine for not voting Australia.
Fine for Not Voting in Australia
Section 245 of the Electoral Act 1918 provides that individuals who fail to vote without a valid and sufficient excuse 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.
After polling day, the Electoral Commissioner from the Australian Electoral Commission compiles a list of the names and addresses of people who did not vote at polling booth of each electoral division. Within 3 months, the Divisional Returning Officer (DRO) who is in charge of voting in each division, will issue a penalty notice to every person on the list.
Persons who failed to vote at a federal election will also receive a penalty reminder notice. The penalty notice states that the person appears to have failed to vote as required, that such failure to vote 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, or
- pay a penalty of $20 to the DRO.
If the person provides the required information, and the DRO is satisfied with it, or the person pays the court costs and penalty, the matter ends.
Can You Go to Jail for Not Voting in Australia?
If paying a fine is the consequence for not voting in Australia, can you go to jail for not voting in Australia? Electors who fail to vote and do not provide a valid and sufficient and valid reason for such action will face a fine. But there is a distinction.
To quote AEC assistant electoral 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 have received if they fail to vote..It may seem a fine distinction, but people do not receive a jail sentence for not voting.”
If the person fails to pay the full one penalty unit, the court can prosecute them. The Court can impose a fine of one penalty unit ($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 action depends on the state or territory in which the court recorded the conviction.
Legitimate Reasons for Failing to Vote
What constitutes valid and sufficient reasons depends 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.
In Judd v. McKeon [1926] HCA 33, Justice Isaacs ruled that valid and sufficient reasons may include the following:
- physical obstruction,
- sickness,
- natural events, or
- accidents of any kind.
He also cited situations that may be considered as valid and sufficient reason for not voting now, such as when a person was on their way to a polling centre, but is diverted to save a life, prevent crime, or assist at some great disaster, like a fire.
Importantly, he notes that “the sufficiency of the reason in any given instance is a pure question of fact, dependent on the circumstances of the person and the occasion”. Hence, whether the reason was valid will depend on the circumstances of the case.
But being busy during Election Day, completely forgetting to vote, getting drunk before Election Day, having no preference for any candidate or political party, and conscientiously objecting to vote are not valid reasons for failing to vote. You will face a fine for not voting in Australia in these situations.
Ineligibility to Vote
Not all Australians who are above 18 years of age could actually vote. Hence, Australians who are ineligible to vote will not face a fine for the offence of not voting in Australia. After all, you cannot receive 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.
In addition, penalty notices are not issued to persons who are believed to be:
- dead
- absent from Australia on polling day
- ineligible to vote
- having valid and sufficient reason for failing to vote.
Case Law: Roach v Electoral Commissioner [2007] HCA 43
In this leading case, the High Court ruled that the complete ban on prisoners voting (regardless of the crime committed or length of their imprisonment) was unconstitutional, as it was 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.
After the Roach decision, the minimum sentence at which prisoners may be disenfranchised at the federal level is three years. However, some states have a different threshold; in the Victorian elections, prisoners are excluded from voting if they are serving sentences of more than five years.
The Importance of Seeking Legal Advice
Perhaps you have not voted in a while because you are ineligible to vote. Now you are wondering whether you will face a fine for not voting in Australia. We highly advise you to seek legal advice as the outcomes of such failure can differ on a case by case basis.
JB Solicitors has a leading team of expert lawyers who are ready to give you specific legal advice on the fine for not voting Australia, among other legal matters of your concern.
Do you have more queries on The Electoral Act or the fine for not voting in local government elections or federal elections in Australia? If you have questions on the meaning of postal vote or need any other information, speak to our lawyers.
Contact us today.
