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The Civic Obligation to Vote – When is it Permissible Not to Vote?

The Supreme Court recently considered a relatively rare appeal relating to the prosecution of an elector for failing to vote in local government elections.

Most of us, at one time or other, have jokingly said something like “I’d rather be fined than have to vote for one of these candidates” – but this case involved a slightly different issue.  That is, whether a person who did not know an election was being held, had a ‘sufficient reason’ for not voting.

An officer of the Electoral Commission, as prosecutor, brought proceedings against Mr Maresch in the Local Court for not voting in a local government election held on 9 September 2017.  The prosecution failed because the Magistrate accepted that Mr Maresch was genuinely not aware the election was being conducted.  It was held this was a “sufficient reason” not to vote, which made out the defence in section 312 of the Local Government Act.

The prosecutor appealed the Supreme Court but was again unsuccessful.  The appeal decision canvasses a number of prior similar cases where a Court had to consider whether a person had a sufficient excuse for not voting.  Although it is something of a generalisation, the earlier cases broadly suggested that choosing not to vote on conscientious or moral grounds was not a sufficient reason; nor was failing to vote on a particular day if the elector was nonetheless aware an election was imminent.  However Mr Maresch’s case was different:  he gave evidence in the Local Court –  that was unchallenged – that he did not read the print newspapers or listen to the radio stations in which the Electoral Commission had published advance notice of the election (he said he read the Sydney Morning Herald and listened to ABC radio only).  He said he had not seen any “flyers” or notices attached to telegraph poles.  He said he had only recently moved to the particular local government area; that he had conscientiously voted in every prior election since becoming eligible to vote; and that he would have voted, had he known the election was being held.

The Supreme Court held that because the statutory obligation was to take a positive step (ie, to vote, in any contested election) it was necessary in order for there to be criminal liability, that the elector knew the election had been called.  On the facts of this case, where the elector had given unchallenged evidence he did not know of the election, that mental element had not been proved.

Those amongst us that may not wish to vote should not, however, take much comfort from the decision:  it will be a very rare case indeed, where an elector can honestly say they did not know an election had been called – and, without being able to give evidence of that kind, the elector is most unlikely to be able to prove they had a “sufficient reason not to vote“:  Kwok v Maresch [2019] NSWSC 1151

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