My brain seems to be stuck in legal mode as a result of exams, and so a recent post by Sinclair Davidson at Catallaxy grabbed my interest. In the post he claims that its illegal to vote informally. In the post he uses the phrases “against the law” and “illegal” to describe informal voting but it’s not until I read his comments that it became clear that he believes informal voting constitutes a punishable offence against the act.section describe the process. The broader context of his opinion can be seen in this comment: “Compulsory voting is an abomination.” Davidson’s position on the legality of informal votes is at odds with what the AEC is reported as saying. It’s also different to my understanding that while the law obligated people to show up and fill out a ballot, it didn’t control how they do so.
Since it’s been a while since I’ve revised the principles of statutory interpretation, I figured now would be a good chance to do so. The practical barriers to enforcement make this something of a purely academic question, but one I found interesting enough. If anything, it should provide an illustration of the substantial complexity and uncertainty faced by those who draft and interpret legislation.I should probably prefix my analysis with the fact that I generally support compulsory voting and think everyone has at least a moral duty to society to participate in the democratic process. I also appreciate the desire to signal dissatisfaction with the options available, but I’m just not sure informal voting is the best way to resolve the issue. That said the merits of compulsory voting are beyond the scope of this post, so on to the legal pedantry.
The Sections of the Act
The obvious first step to determine the extent of the legal duty to vote is to examine the legislation. This analysis will be limited to elections for the house of representatives as there is no relevant differences in regards to the senate other than an increased complexity in the ballot and marking process. The duty to vote is established, as Davidson indicated, in section 245 of the Commonwealth Electoral Act 1918:
(1) It shall be the duty of every elector to vote at each election.
It’s clear that everyone enrolled to vote has a duty to vote. The content of this duty is not as clear. The act does not provide a specific definition for the word “vote”. In common use to “vote” can mean anything from filling out a secret ballot at an election, to raising a hand in a room, or simply calling out “aye” or “nay” at a gathering. I don’t think it’s possible to determinatively exclude informal votes from the meaning of “vote” solely based on how it is used in that section. So it is necessary to look further in order to establish the scope of the duty. Davidson makes the case that the section that covers how a person is to mark the ballot can be used to determine the content of the duty:
(1) In a House of Representatives election a person shall mark his or her vote on the ballot paper by:
(a) writing the number 1 in the square opposite the name of the candidate for whom the person votes as his or her first preference; and
(b) writing the numbers 2, 3, 4 (and so on, as the case requires) in the squares opposite the names of all the remaining candidates so as to indicate the order of the person’s preference for them.
(2) The numbers referred to in paragraph (1)(b) are to be consecutive numbers, without the repetition of any number.
These two sections by themselves could be read to infer the duty extends to how an elector marks the ballot. There are some questions raised by the language used (or not used). Section 240 uses the phrase “shall mark his or her vote on the ballot paper”, not “shall vote by marking the ballot paper”. This suggests that the legislation might consider voting and marking as separate concepts, enabling the duty to be interpreted as excluding how the ballot is marked. Further section 245 refers to a duty “to vote” and not a duty “to vote as directed by section 240”. Conversely, the wording also includes a duty “to vote” not merely a duty “to attend” or “to submit a ballot”. While the wording creates some uncertainty about the extent of the duty, it doesn’t provide a clear enough indication so further investigation is necessary.
Process of Interpretation
There are two plausible and competing interpretations based on the wording in the act. The Catallaxy post and comment thread identify a number of factors that could be used to justify one interpretation over another. The question is which factors are most relevant.
The Acts Interpretation Act 1901 instructs that the interpretation show follow the purposive approach:
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.
The Commonwealth Electoral Act doesn’t provide an express purpose. Despite this, it is clear the purpose of the act (in general) is to describe in detail the process of how people are to choose their representatives as required and enabled by the Australian Constitution:
The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth …
Until the Parliament otherwise provides, but subject to this Constitution, the laws in force in each State for the time being relating to elections for the more numerous House of the Parliament of the State shall, as nearly as practicable, apply to elections in the State of members of the House of Representatives.
In this context the provisions in section 240 can be see as the Commonwealth Parliament providing the legislative description of the legal process by which the people directly choose their representatives. It would be a step beyond this to impose a duty on people to follow that process. Still, the question remains as to whether attaching provisions in section 240 to the duty in section 245 best achieves this purpose.
Structure of the Statute
It’s important to not focus purely on the words themselves, but to look beyond the immediate sections in questions on consider the structure of the act. As the High Court explained in CIC Insurance Ltd v Bankstown Football Club Ltd  HCA 2
[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise…
The most immediate context is another part of section 245. The same section that establishes the duty also establishes the offence for failing to meet the duty, the associated penalty and a specific defence:
(15A) Strict liability applies to an offence against subsection (15).
Note: For strict liability , see section 6.1 of the Criminal Code .
(15B) Subsection (15) does not apply if the elector has a valid and sufficient reason for the failure.
The offence under s 245(15A) imposes strict liability. This means that intent (whether the failure was ‘deliberate’ or not) is not necessary for the conduct to be considered an offence. In practice this means someone can’t simply claim they intended to vote but forgot in order to avoid the charge. If this offence extends to cover informal voting, it means that someone who accidentally fills out their ballot incorrectly has also committed an offence (the mistake of fact defence is still available, but it would be a bit of a stretch to claim a mistake about the state of the ballot paper in most circumstances). That seems a little harsh to me, particular when considering the oversized senate ballot.
The surrounding provisions provide an indication of how the offence is intended to be enforced:
(1) Immediately after handing a ballot paper to a person whose name is on the certified list of voters, or an approved list of voters, available at a polling place, the presiding officer or a polling official at the place must:
(a) place a mark against the person’s name on the certified list; or
(b) record electronically against the approved list the fact that the person has been handed a ballot paper.
(2) The presiding officer at a polling place shall make a record of the name of each elector who casts a declaration vote at the polling place and, in the case of an absent voter, of the Division for which the elector declares under subsection 222(1) or (1A) that he or she is enrolled, and shall, at the close of the poll, forward the record, duly certified by the presiding officer, in accordance with section 228.
(2) The Electoral Commissioner must, after polling day at each election, prepare for each Division a list of the names and addresses of the electors who appear to have failed to vote at the election.
(3) Subject to subsection (4), within the period of 3 months after the polling day at each election, each DRO must:
(a) send a penalty notice by post; or
(b) arrange for a penalty notice to be delivered by other means;
to the latest known address of each elector whose name appears on the list prepared under subsection (2).
There are clear measures to enforce the elements of the offence that include a requirement to show up, get a ballot and get your name marked off. The presiding officers and assistants would be able to witness and hence enforce that each elector go into a booth, fold the ballot and put it in the box.
However, one of the key policy decisions made within the act is that voting to take place in private. The surrounding sections limit the capacity the government has to enforce how people mark their ballot:
(1) Except as otherwise prescribed the voter upon receipt of the ballot paper shall without delay:
(a) retire alone to some unoccupied compartment of the booth, and there, in private, mark his or her vote on the ballot paper;
(b) fold the ballot paper so as to conceal his or her vote and:
(i) if the voter is not an absent voter–deposit it in the ballot-box; or
(ii) if the voter is an absent voter–return it to the presiding officer; and
(c) quit the booth.
Except as authorized by this Act or the regulations, an officer shall not place upon any ballot paper any mark or writing which would enable any person to identify the voter by whom it is used.
These provisions make it clear that parliament considers the private nature of voting as an important part of the act’s purpose. It does not make sense to interpret an offence beyond the limits of enforcement provided elsewhere in the act. Further, it would be contrary to the purposive approach to interpret an offence in such a way that any enforcement action would conflict with another key policy objective established elsewhere in the act. This suggests in creating the offence parliament is only concerned with those who fail to turn up, get their names marked off the list and follow the observable instructions, not those who fail to mark their vote according to section 240.
The Mischief Rule & Extrinsic Material
The law allows us to look further than just the act itself. Firstly, the common law has long interpreted acts of parliament by considering what mischief or defect the act is intended to remedy. This was also noted in the CIC Insurance case:
[T]he modern approach to statutory interpretation… (b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief which … one may discern the statute was intended to remedy.
In examining the history of the legislation, it can also be useful to consider extrinsic material (explanatory memoranda, speeches to parliament, etc) as provided for by Section 15AB of the Acts Interpretation Act. The obvious next step to consider then is the history of the act. There are two points to note about differences in the older version of section 245 (which was renumbered from 128A).
128A. Compulsory voting
(1) It shall be the duty of every elector to record his vote at each election.(12) Every elector who-
(a) fails to vote at an election without a valid and sufficient reason for such failure; or
shall be guilty of an offence.
The first is that the duty includes the obligation to not just “vote” but to “record [the] vote”. The second is that this requirement to record is missing from the offence related to the duty. This provides further argument that by removing the duty “to record”, parliament intended the duty in the current act to exclude that element. Although arguably the purpose of the amending act was to resolve language issues in the legislation and not change the extent of elector duties.
Section 119 (now repealed) also differs in two respects from its current equivalent (section 233).
119. Vote to be marked in private
Except as otherwise prescribed the voter upon receipt of the ballot-paper shall without delay-
(a) retire alone to some unoccupied compartment of the booth, and there, in private, mark his vote on the ballot-paper in the manner hereinafter described;
(b) fold the ballot-paper so as to conceal his vote and to show clearly the initials of the presiding officer, and exhibit it so folded to the presiding officer, and then forthwith openly, and without unfolding it, deposit it in the ballot-box; and
(c) quit the booth.
Firstly, it involved a partial inspection of the ballot before putting it in the box which is not particularly relevant to the issue at hand. Secondly, it included an express link between the process of handling the ballot and the manner in which it is marked. In this case the amending act was intended to “make the voting process simpler“. This change suggests an intention by parliament to remove the link between any public duty (and related offence) to attend and handle the ballot, and the private matter of how the ballot is marked.
This simplicity echoes the statements made back in 1924 with the introduction of compulsory voting legislation. The second reading speech of the act that introduced compulsory voting contained the explanation:
It is very simple, consisting of three clauses only, the principal one of which is clause 2. The bill provides that it shall be the duty of every elector to record his vote, and that after each election a list of those who did not vote shall be prepared by the returning officer.
Extending the content of the duty to include the detailed provisions of how the ballot is to be filled out conflicts with this intended simplicity. The natural limitation on enforcement was also acknowledged at the time:
Honorable members may say that we can take a horse to the water but we cannot make him drink. But by compelling people to vote, we are likely to arouse in them an intelligent interest, and to give them a political knowledge that they do not at present possess.
The interpretation I take from that is that parliament can take an elector to the booth, but cannot make them hold or express a preference. The overall purpose of the act is aided by the fact that being compelled to attend means people will often be induced to form a preference and express it.
The specific words in the sections don’t clearly indicate the extent of the duty and could arguably be interpreted as extending the duty to how a ballot is marked. However, when considered in their full context I think the better interpretation is that the duty is limited to attendance and simple handling of the ballot, and does not include the specific manner in which the ballot is marked.
Presumption of Last Resort
Any remaining uncertainty about the extent of the duty can be extinguished by reference to the common law assumption against creating a statutory offence. According to the High Court in R v Adams  HCA 62:
… when that language is capable of more than one meaning, or is vague or cloudy so that its denotation is uncertain and no sure conclusion can be reached by a consideration of the provisions and subject matter of the legislation, then it ought not to be construed as extending any penal category.
It is also reiterated by by Gibbs J in Beckwith v The Queen  HCA 55:
The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences.
I think the structure and context of the act creates sufficient uncertainty about the link between the offence in section 245 and the provisions in section 240 to mean it is appropriate to assume there is none.
It is prudent to consider the case law on this matter. The cases have been about the constitution power of the Commonwealth to impose such a duty and the extent of the “valid and sufficient reason” defence. For the practical reasons discussed above there have been no cases requiring them to address the matter of whether it is an offence to mark the ballot contrary to section 240. This means the judicial commentary is obiter and somewhat inconsistent. The cases on constitutional power are of little assistance as I am not arguing on the basis the Commonwealth lacks the power to compel people to mark their ballot in a particular way.
The cases on valid and sufficient reasons are focused on the purpose and not the content of the duty. As explained in by Isaacs J in Judd v McKeon  HCA 33, allowing a lack of preference to be a valid and sufficient reason would undermine the purpose of the duty:
When all opportunities are reduced to the actual candidatures and the time comes for each constituency to return its quota to the national Parliament, there is no force whatever in the contention that a valid and sufficient reason exists for non-compliance with the primary duty of voting, merely because no one of the ultimate candidates meets with the approval of the given elector. If that were admitted as a valid and sufficient reason, compulsory voting would be practically impossible.
As explained in the second reading speech quoted above, the purpose of the duty goes beyond getting the elector to turn up and fill out a ballot. The purpose extents to inducing the elector to consider the election and form an opinion. Given the impossibility of imposing a duty to form an opinion, it is clear the purpose of the duty goes beyond its contents. Thus a reason to avoid the duty that conflicts with or undermines this purpose, as those found in the case law, can be considered not “valid and sufficient” even though there would be no direct effect resulting from the duty being fulfilled (i.e. turning up and voting informally). I’m not sure these cases can do much to clarify the matter about the content of the duty.
Perhaps the strongest authority in the case law comes from the High Court in a case where the older provisions were still in place, a case Davidson cited in his own article (Faderson v Bridger  HCA 46 at , my emphasis):
Section 128A places a duty on every elector to record his vote. This is done by attending at a polling booth, accepting a ballot paper, and, as s. 119 provides, marking it and depositing it in the ballot box. A failure to vote therefore involves a failure to attend, accept the ballot paper and having marked it, to put it in the ballot box. Of course there is no offence committed by not marking the ballot paper in such a fashion that the elector’s vote is in law a valid vote.
The only other observation I’ll make from the case law, is that its amazing how many High Court challenges there have been to an offence that imposes such a small ($50) fine.
The fact the law might not extend the duty or offence to include the provisions of how the ballot is to be marked does not mean there are no consequences for doing so. It is unlikely that the effort would be made to draft a provision detailing how something should be done without there also being some indication of the consequences when those provisions are not followed.
Comparing section 240 to another one from the same act might help gain some perspective on the implications of failing to perform as the provision specifies. Consider the process for applying to vote via the post:
(1) An elector may apply for a postal vote on any of the grounds set out in Schedule 2.
(2) A person who is provisionally enrolled may apply for a postal vote.
What happens if someone is eligible to apply for a postal vote under section 183, and attempts to apply for a postal vote:
- over the phone;
- not in an approved form; or
- without including the required declaration?
Clearly they have applied contrary to the rules in section 184. The phrases Davidson used in his post could technically be used. One could say the person applied “against the law”, applied “illegally” or that the application was “unlawful”. Since such phrases are commonly used to describe crimes up to and including murder, they are perhaps not the best phrases to use outside a specific legal context. A better phrase would probably be that the application was “legally invalid”. Failing to apply for a postal vote in the prescribed manner hardly implies someone is a bad person or has harmed society in some meaningful way. There is a distinct difference between a provision that mandates how something must be done in order for it to have a certain legal affect, and a provision that mandates how something must be under threat of punishment (i.e. creates an offence).
The legal consequence of applying contrary to section 184 is that the application does not obligate a postal ballot be sent out, thus potentially preventing the person from voting via post:
(1) A DRO or Assistant Returning Officer who receives an application for a postal vote that is in accordance with subsection 184(1) must (unless the application fails to meet the deadline as mentioned in subsection 184(5)) send, or arrange for the sending, to the applicant in accordance with whichever of subsections (2), (3) and (4) of this section applies:
(a) a postal vote certificate printed on an envelope; and
Of course it is possible that failing to adhere to the statutory directions could cause indirect legal consequences. Failing to apply correctly for a postal vote may not be considered a valid and sufficient excuse for failing to show up on election day. It is also possible that failing to adhere to the statutory directions affects legal rights and obligations outside the immediate context. For example a police officer who fails to adhere to statutory limits on using force to arrest someone could be said to have used “unlawful force”. This might not just cause an evidence to be excluded in the criminal context, but they may also loose protection against civil liability for their actions. However, it is unlikely that any conduct with regarding the rights and duties of electors would extend beyond their electoral context.
There are two sections in the act that deal with the consequences of failing to mark a ballot in the way set out in section 240:
(1) A ballot paper shall (except as otherwise provided by section 239, and by the regulations relating to voting by post) be informal if:
(c) in a House of Representatives election, it has no vote indicated on it, or it does not indicate the voter’s first preference for 1 candidate and an order of preference for all the remaining candidates:
Provided that, where the voter has indicated a first preference for 1 candidate and an order of preference for all the remaining candidates except 1 and the square opposite the name of that candidate has been left blank, it shall be deemed that the voter’s preference for that candidate is the voter’s last and that accordingly the voter has indicated an order of preference for all the candidates:
Provided further that, where there are 2 candidates only and the voter has indicated his or her vote by placing the figure 1 in the square opposite the name of 1 candidate and has left the other square blank or placed a figure other than 2 in it, the voter shall be deemed to have indicated an order of preference for all the candidates.
(b) reject all informal ballot papers…
The legislated (and rather obvious) consequence of not filling out the ballot paper correctly, is that it will likely be considered an informal ballot and rejected (i.e. not counted). Based on my conclusion that this does not constitute an offence, there do not appear to be any further legal consequences. That said, it is possible that in the hypothetical circumstance that someone confesses and is prosecuted that the court would end up ruling the way Davidson indicates and then they would face a $50 fine. However as far as I can see, the only way the law compels someone to actually mark their ballots correctly is by ‘threatening’ to do the very thing the complainants appear to want, that is to have their vote not count.
As for the immense imposition of turning up to fill out a ballot once every three years, the benefits as described back in 1924 would seem to me to be significantly beneficial enough to justify such a duty. That however is an argument for another post…