Proposal 9–7 The Australian Electoral Commission should develop or amend guidance for Divisional Returning Officers to assist them to determine if a valid or sufficient reason for failing to vote exists in circumstances where an elector is a person with disability.
9.51 There is a concern that people with disability who are on the electoral roll may be fined for failing to vote because they did not understand when or where booths were open, could not get to a polling station, or for some other reason associated with their disability.
9.52 Section 245 of the Commonwealth Electoral Act relates to compulsory voting. Section 245(4) provides that a Divisional Returning Officer (DRO) is not required to send or deliver a penalty notice if he or she is satisfied that the elector: is dead, was overseas, was ineligible to vote or ‘had a valid and sufficient reason for failing to vote’.
9.53 Some stakeholders have advocated for inclusion of disability as a specific criterion excusing failure to vote. In particular, PIAC and People with Disability Australia and the Disability Discrimination Legal Centre have argued 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.
9.54 The ALRC’s view is that status-based approaches to disability—even where they operate in favour of the person with disability, for example to waive a fine— should be avoided. Accordingly, the ALRC does not consider it appropriate to amend the section to specifically include disability as a separate criterion, or a statutorily defined valid and sufficient reason for failing to vote.
9.55 However, determining what constitutes a valid and sufficient reason for not voting is at the discretion of the DRO for each electorate to determine. 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.
9.56 Administrative guidelines developed by the AEC, in consultation with the AEC Disability Advisory Committee, may provide a useful document in which to provide additional guidance to DROs in relation to the potential impact of disability on an electors’ ability to vote. As a result, the ALRC proposes that the AEC amend existing administrative guidelines, or develop new guidance for DROs in determining what constitutes a valid and sufficient reason for failure to vote, including examples relating to disability.
See, eg, Ibid; People with Disability Australia and Australian Centre for Disability Law, Submission 90 to the Minister of State, Electoral Reform Green Paper: Strengthening Australia’s Democracy, 2009.
People with Disability Australia and Australian Centre for Disability Law, Submission 90 to the Minister of State, Electoral Reform Green Paper: Strengthening Australia’s Democracy, 2009. See also The Human Rights Law Centre, Submission 54.
Australian Electoral Commission, Electoral Backgrounder: Compulsory Voting (April 2010) .
Australian Electoral Commission, Submission 10.