While the right to vote is considered a democratic freedom that millions of people around the world wish they had, Australians do not get a choice – or at least, they face consequences if they refuse or otherwise fail to vote in federal, state or territory, or local government elections without a reasonable excuse.
And while not all people who reside in Australia are able to vote, women in our nation were only permitted to do so as recently as 1902, which voting becoming compulsory for women in 1924.
Voting is compulsory
Voting is mandatory across the nation and failure to do so can attract a fine, whether the omission relates to a federal or a state or territory election.
And it is important to be aware that not paying the fine can result in a prosecution through the court system.
In Australia, the three-tiered system of government means that there are several types of elections – local council, state government, federal government, by-elections and also referendums.
The election process is legislated by both commonwealth and state and territory legislation.
The applicable fine for not voting differs across each state and territory, and is dependent on the type of election to which it relates.
The legislation which governs federal elections, and is the Commonwealth Electoral Act 1918.
The Act requires all Australian citizens aged 18 years or older be enrolled to vote, and to actively participate in the electoral process.
Failing to enrol to vote is technically a requirement under the law, but does not in itself incur a penalty and is not prosecuted as an offence. In fact, about 400,000 people eligible to vote are not currently enrolled.
However, once you are on the electoral roll, you are required to vote.
Under the Commonwealth Act, is also an offence to vote more than once in an election.
Voting in New South Wales
Legislation which governs the election processes in New South Wales is called the Electoral Act 2017.
The fine for not voting in New South Wales is currently $55.
The NSW Electoral Commission (the state equivalent of the AEC) has three months from the date of the election to send a ‘failure to vote’ notice.
However, if you do not act within 28 days of receiving the notice and the fine is sent to Revenue NSW for processing, then you will incur additional charges.
Acceptable reasons not to vote in New South Wales
The NSW Electoral Act outlines valid reasons not to vote considered to be acceptable.
Some of these are:
- You were not well and / or in hospital,
- Natural weather events or disasters,
- You had an accident on the way to the polls,
- You are about to give birth,
- You have a disability,
- You cannot attend for fear of your own safety or the safety of members of your family, and of course:
- You are deceased.
There are a number of other reasons outlined in the Act (Section 6) regarding work commitments, being overseas at the time of the election and religious beliefs which may preclude you from attending a voting booth.
While these reasons still exist within the current legislation, the voting system has expanded to include online voting, pre-election date voting, absent voting and postal voting as well as in-person at a polling booth, to make it easier for all people eligible to vote to undertake this civic duty.
So, if you are planning to use these excuses as your reason not to vote, the threshold of evidence you need to supply to make this claim needs to be substantial given the multiple options available for voting.
As a sidenote, the High Court case of Judd v McKeon (1926) made clear that a disinterest in any particular candidate or party is not a sufficient reason for failing to vote, as well as that there is no list of reasons at common law which will excuse a person from having to vote. Each case is therefore decided on its own merits and in the context of any legislation.
Fines for failing to vote in Australian states and territories
At the time of writing, the fines for failing to vote across Australian jurisdictions are as follows:
|State or territory
|New South Wales
|$104 (includes a victim of crime levy)
|$20 or $50 for a subsequent offence
|The Northern Territory
|Varies across election types
Can I be prosecuted for not voting?
There are only 23 countries in the world which have mandatory voting laws, and only about half of those countries actively enforce these laws – Australia being one of them.
If you pay the fine you have incurred, you will not be prosecuted. But you can indeed be prosecuted in court for unpaid fines, including those accrued for failing to vote.
In New South Wales, Revenue New South Wales will add an administrative fee to the initial fine in the event that it is left unpaid for 28 days. At the time of writing, this fee is $65.
If the fine and accrued fees remain unpaid, the matter can be referred to court.
The current court-imposed additional penalty for not voting in a New South Wales elections is 1 penalty unit, which is $110 at the time of writing.
Can prison inmates vote?
Only some inmates are eligible to vote while in custody, and this depends on whether the person is sentenced to time behind bars, the length of the sentence and if they were enrolled to vote prior to entering custody.
New South Wales prison inmates who are serving a sentence of more than three years are not entitled to vote,
While Victorian inmates are ineligible to vote if they are serving prison sentences of more than five years.
Details including your name and current address are included on the election roll. In recent years, the New South Wales Government has introduced an option to be a ‘silent elector’ for anyone who believes that having their address on the publicly available electoral roll could put them or their family’s safety at risk.
Essentially, being a ‘silent elector’ means your address will not be shown on future electoral rolls. Only your name and electoral division will appear.
To apply to be a ‘silent elector’ you need to contact the AEC and explain in detail what you consider the risk to be and why your, or your family’s, personal safety is at risk.
The information in your application is treated as strictly confidential. Once the AEC has considered your application, their decision will be sent to you in writing.
Disputing a fine for ‘failure to vote’
If you fail to vote, and wish to dispute the fine, you can submit your reason to the Electoral Commissioner who will determine whether or not you have a valid reason for not voting.
There are cases where your dispute of the fine is not accepted, in which case you will need to pay the fine, or you can elect to appeal the matter in court.
You can also submit another sufficient reason for not voting for the Electoral Commissioner to review and determine if your reasons for not voting are valid.
That said, there are some cases in which an appeal may be denied, and you’ll still need to pay the fine or appeal your case in court. It’s important to remember that you may incur additional fees on top of the original fine, and if you decide to go to court, you will incur legal fees. Courts may also impose a higher penalty.
The fine for failing to vote in a federally election process, such as the recent ‘Voice to Parliament’ referendum is $20, or $50 if it is not your first offence.
While you can dispute the fine, it’s important to remember that in doing so you must be truthful – providing false or misleading material to the Commission constitutes an offence under section 245(15C), which carries a maximum penalty of a fine of $192.31.
Unlike the NSW legislation which outlines acceptable reasons for failing to vote, in a federal election, what constitutes a ‘valid and sufficient reason’ is not defined by the Commonwealth Electoral Act, and will be determined by the Australian Electoral Commission on a case-by-case basis.
Voter fraud is hard to detect because voting papers are anonymous and difficult to trace – but it is not impossible.
If you have had your name marked on the electoral roll more than once in the same election, or you are caught impersonating another voter, you may receive a letter from the federal or state electoral commission asking for an explanation.
Under the Commonwealth Electoral Act 1918, there are specific electoral fraud offences including:
- Impersonating another person for the purposes of getting a ballot paper, and
- Voting multiple times in the same election.
If you are found guilty of an electoral offence, you could face anything from a non-conviction order (where the case is dismissed altogether or with a good behaviour bond, but does not come with a criminal conviction, to a fine, to a maximum ten-year prison sentence, depending on the nature and severity of the offence.