It is compulsory for all eligible Australians (18 years and over) to vote in federal and state elections. Failure to vote at an election is an offence under section 166(1)(a) of the Electoral Act 2002. As this offence only carries a maximum penalty of one penalty unit (around $161), you would only hire a lawyer to contest this charge if you wish to fight it as a matter of principle.
Which court will the case be heard in?Cases related to this offence will be heard at the Magistrates’ Court.
Elements of the offenceThe prosecution must prove the following beyond reasonable doubt:
- The accused is eligible to vote
- An election was held; and
- No vote was registered at the election on behalf of the accused; and
- The accused did not have a valid and sufficient reason for not voting.
In order to be eligible to vote, the accused must be an Australian citizen and over the age of 18. The following Australians are not entitled to enrol and vote: people who are incapable of understanding the nature and significance of enrolment and voting, prisoners serving a sentence of five years or longer, and people who have been convicted of treason.
Australians can also qualify for special enrolment in certain circumstances:
- People with a disability can have someone help them enrol and vote
- Homeless people can enrol as ‘itinerant electors’
- People who are overseas can register as eligible overseas electors
- People working in Antarctica can register as Antarctic electors
- People who believe that publication of their address would put themselves or their family at risk can apply for silent enrolment
- 17-year-olds can provisionally enrol and can vote if their 18th birthday falls on or before polling day for the election
This is usually not a controversial element. It would obviously be a defence to the charge if no election was held.
Element 3: Was a vote registered on behalf of the accused?
Again, this is usually not a controversial element. It is possible that the accused registered their vote but their name wasn’t crossed off by the staff working at the polling booths.
Element 4: Did the accused have a valid and sufficient reason for not voting?
It is at the discretion of the Australian Electoral Commission to determine whether an accused has provided a valid and sufficient reason for not voting. They will consider the merits of each individual case and take into account any specific circumstances in making a determination.
In Judd v McKeon (1926) 38 CLR 380, the High Court gave some practical examples of what would be regarded as sufficient reasons for not voting:
“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: in all of which cases, in my opinion, the law would recognise the competitive claims of public duty.”1
Examples of Failure to Vote at Any Election Without a Valid and Sufficient Excuse
- You get drunk the night before the day you are supposed to vote. You sleep in and completely forget to vote.
- You are busy on the day you are meant to vote, and turn up to the polling booth after hours, and it is closed.
- You hate all political parties running in the upcoming election, and decide to protest by not voting.
- You don’t believe in compulsory voting, so you choose not to vote.
LegislationThe legislation for this offence can be found in section 166(1) of the Electoral Act 2002.
DefencesCases involving this charge are often defended on the basis of sudden or extraordinary emergency, impossibility (i.e. physical obstruction such as a natural event or accident of any kind) and mental impairment. We successfully defended one of these on the basis that the client turned up at the advertised polling booth to find that it was not open.
Questions in cases like this
- Are you ‘eligible’ to vote? Are you an Australian citizen and over 18 years old?
- Did you have a valid and sufficient excuse for not voting?
Maximum penalty for section 166(1)(a) of the Electoral Act 2002The offence of (s166(1)(a) of the Electoral Act 2002) carries a fine of 1 penalty unit (around $161) as the highest possible sentence.
Whether you should contest or plead guilty to this charge depends on a lot of factors but a charge such as this would only be fought in Court on a matter of principle as the penalty is so low. You would not want to pay legal fees that amount to more than the fine.
Other important resources
- Voting within Australia – Frequently Asked Questions
- Victorian Electoral Commission: What If I Didn’t Vote?
- Valid and sufficient reason for failure to vote
 Judd v McKeon (1926) 38 CLR 380