Valid and sufficient reason for failure to vote

Recommendation 9–3               Section 245 of the Commonwealth Electoral Act 1918 (Cth) on compulsory voting should be amended to provide that it is a ‘valid and sufficient reason’ for not voting if a person cannot:

(a)        understand information relevant to voting at the particular election;

(b)        retain that information for a sufficient period to make a voting decision;

(c)        use or weigh that information as part of the process of voting; or

(d)        communicate their vote in some way.

Recommendation 9–4               The Australian Electoral Commission should provide Divisional Returning Officers with guidance and training, consistent with the National Decision-Making Principles, to help them determine if a person with disability has a valid and sufficient reason for failing to vote.

A new functional exemption

9.28       Section 245 of the Electoral Act provides voting is compulsory. Section 245(4) provides that a DRO is not required to send or deliver a penalty notice if satisfied that the elector: is dead, was overseas, was ineligible to vote or ‘had a valid and sufficient reason for failing to vote’. Electors with a valid and sufficient reason for not voting do not have to pay a fine.

9.29       The ALRC recommends amendment of the Electoral Act to specify that it is a valid and sufficient reason for not voting, if the person cannot understand, retain and weigh information relevant to voting, or communicate their vote in some way. The wording of the recommendation is intended to be consistent with other instances in which the ALRC has recommended that some form of functional test of ability needs to be retained.[39]

9.30       Exemption from compulsory voting would ensure there is a mechanism so that people who lack decision-making ability relating to voting are not unfairly penalised. Some form of functional test is needed to determine whether someone has a ‘valid and sufficient reason’ not to vote because, otherwise, persons with disability who are on the electoral roll may be fined for not voting when they are not able to understand what it means to vote.[40]

9.31       Some stakeholders said disability should be included as a specific criterion excusing failure to vote. In particular, PIAC endorsed a submission by the PWDA and the NSW Disability Discrimination Legal Centre (DDLC) on the Electoral Reform Green Paper that s 245(4) should be amended to ‘include people with an intellectual or psychiatric disability who are unwell at election time’ as a valid and sufficient reason for failing to vote.[41] The ALRC has not examined in any detail whether exemptions along these lines would be desirable, but observes that such status-based approaches may not accord with the CRPD.

9.32       The recommended exemption would cover situations where a person’s intended support failed them, or where support was not able to facilitate an expression of the person’s will and preference with respect to voting.[42] A person should not necessarily be removed from the electoral roll in these circumstances, and the potential to vote in future elections should not be removed.[43]

9.33       Persons with disability should not be required to provide a medical certificate when seeking an exemption from laws requiring them to vote. At present, an exemption may be given by a DRO for any valid and sufficient reason, and no particular form of proof is required. To require a medical certificate in order to claim the exemption would place too great a burden on individuals or their families.[44] Further, the AEC needs flexibility to decide that, having accepted that a person has a valid and sufficient reason not to vote in one election, subsequent failures to vote will also not be penalised—where the reason for not voting is likely to be ongoing. However, the person should remain on the electoral roll and be entitled to vote, if they can be supported to do so.

Guidance for Divisional Returning Officers

9.34       Under the Electoral Act, the DRO for each electorate has discretion to determine what constitutes a valid and sufficient reason for not voting.[45] The AEC states that

the original decision of the DRO as to whether a reason for not voting is valid and sufficient is based on the merits of each individual case, in accordance with the law as previously interpreted by the courts, and within the boundaries of administrative guidelines developed by the AEC to assist DROs.[46]

9.35       Administrative guidelines developed by the AEC, in consultation with its Disability Advisory Committee,[47] may provide additional guidance to DROs in relation to the potential impact of disability on electors’ ability to vote. In the Electoral Backgrounder on Compulsory Voting, the AEC cites some practical examples given by the High Court of valid and sufficient reasons not to vote, including ‘competitive claims of public duty’, and:

Physical obstruction, whether of sickness or outside prevention, or of natural events, or accident of any kind, would certainly be recognised by law in such a case. One might also imagine cases where an intending voter on his way to the poll was diverted to save life, or to prevent crime, or to assist at some great disaster, such as a fire.[48]

9.36       The ALRC recommends the AEC provide DROs with appropriate guidance and training, consistent with the National Decision-Making Principles, to help them determine if a person with disability has a valid and sufficient reason for failing to vote.