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HOLMDAHL v AUSTRALIAN ELECTORAL COMMISSION (No 2) [2012] SASCFC 110 (24 September 2012)

Last Updated: 3 October 2012

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)

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HOLMDAHL v AUSTRALIAN ELECTORAL COMMISSION (No 2)

[2012] SASCFC 110

Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Sulan)

24 September 2012

CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - ELECTIONS AND RELATED MATTERS - FAILURE TO VOTE

Appeal referred for hearing and determination by the Full Court pursuant to section 42(2)(b) of the Magistrates Court Act 1991 (SA) and rule 280(2) of the Supreme Court Civil Rules 2006 (SA) - the appellant was convicted of an offence against  section 245(15)  of the  Commonwealth Electoral Act 1918  (Cth) - where the appellant was enrolled as an elector on the Commonwealth Electoral Roll as at the date of an election - where the appellant did not attend a polling booth - whether  section 245(15)  is a law with respect to a head of power in the Commonwealth Constitution - whether section 245(15) detracts from the mandate in sections 7 and 24 of the Commonwealth Constitution that Members of Parliament be "directly chosen by the people" - alternatively, whether, read in light of that mandate, section 245(15) permits an elector to "vote" by choosing not to attend a polling booth - whether section 245(15) is specific enough such that non-attendance can be said to amount to a failure to vote - whether the respondent bore an onus of establishing the appellant did not have a valid and sufficient reason for failing to vote.

Held per Gray J (Kourakis CJ and Sulan J concurring): Appeal dismissed. Section 245(15) is a law with respect to elections, supported by sections 10, 31 and 51(xxvi) of the Commonwealth Constitution - the phrase "directly chosen by the people" should not be dissected in a way that gives the expression an operation distinct from that of sections 7 and 24 when read as a whole - the phrase identifies the requirement of a popular vote, it does not require a particular electoral system nor a system with some particular feature - the expression admits a considerable measure of legislative freedom as to the method of choice of Members of Parliament - section 245(15) does not detract from the mandate in sections 7 and 24 of the Commonwealth Constitution - a non-postal voter who fails to attend a polling booth without valid and sufficient reason contravenes section 245(15) - the appellant bore an evidential burden of establishing he did not have a valid and sufficient reason for failing to vote.

 Commonwealth Electoral Act 1918  (Cth)  s 4 ,  s 4D ,  s 81 ,  s 82 ,  s 83 ,  s 94 ,  s 96 ,  s 101 ,  s 104 , s 221,  s 222 ,  s 229 ,  s 231 ,  s 232 ,  s 233 ,  s 239 ,  s 240 ,  s 245(1) ,  s 245(15) ,  s 245(15A)  and s 245(15B); Criminal Code (Cth) s 4.3, s 6.1 and s 13; Magistrates Court Act 1991 (SA) s 42; Supreme Court Civil Rules 2006 (SA) r 280(2); Commonwealth of Australia Constitution Act s 7, s 9, s 10, s 31, s 24, s 41 and s 51(xxxvi); Acts Interpretation Act 1901 (Cth) s 13; Commonwealth Electoral Act 1918-1925 (Cth) s 128A(1) and s 128A(12); Commonwealth Electoral Act 1918-1966 (Cth) s 128A(1) and s 128A(12), referred to.

Holmdahl v Australian Electoral Commission [2012] SASC 76; Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520; Rowe v Electoral Commissioner [2010] HCA 46; (2010) 243 CLR 1; Re Pearson; Ex parte Sipka [1983] HCA 6; (1983) 152 CLR 254; Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181; Langer v The Commonwealth [1996] HCA 43; (1995) 186 CLR 302; McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140; Ex rel McKinlay v The Commonwealth [1975] HCA 53; (1975) 135 CLR 1; Roach v Electoral Commissioner (2007) 233 CLR 162; Kean v Kerby [1920] HCA 35; (1920) 27 CLR 449; Muldowney v South Australia [1996] HCA 52; (1996) 186 CLR 352; Lubke v Little [1970] VicRp 99; [1970] VR 807; Faderson v Bridger [1971] HCA 46; (1971) 126 CLR 271; Judd v McKeon [1926] HCA 33; (1929) 38 CLR 380; Evans v Crichton-Browne [1981] HCA 14; (1980) 147 CLR 169; Douglass v Ninnes (1976) 14 SASR 377; Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106; Ditchburn v Divisional Returning Officer for Herbert [1999] HCA 41; (1999) 165 ALR 151, considered.

HOLMDAHL v AUSTRALIAN ELECTORAL COMMISSION (No 2)
[2012] SASCFC 110

Full Court: Kourakis CJ, Gray and Sulan JJ

1. KOURAKIS CJ: I would dismiss the appeal for the reasons given by Gray J. Those reasons show that, irrespective of whether the duty to vote imposed by  s 245  of the  Commonwealth Electoral Act 1918  (Cth) (the Electoral Act) extends to marking the ballot in a way which records a formal vote, it does include an obligation to comply with s 233 of the Electoral Act. No sensible construction of the Electoral Act is available which would exclude a person who did not wish to cast a formal vote from the scope of that obligation. It is inconsistent with the duties imposed by s 239 and s 240 of the Electoral Act. The exclusion of such electors from the scope of s 245 of the Electoral Act is, for obvious reasons, inconsistent with the statutory purpose of the electoral scheme it establishes.

GRAY J.

2. This is an appeal against conviction following a trial in the Magistrates Court.
3. The defendant and appellant, Nils Anders Holmdahl, both at trial and on appeal, raised a challenge to  section 245(15)  of the  Commonwealth Electoral Act 1918  (Cth). Together  sections 245(1)  and  245 (15) provide for compulsory voting at Commonwealth elections.
4.  Section 245  of the Commonwealth Electoral Act relevantly provides:

Compulsory voting
(1) It shall be the duty of every elector to vote at each election.
...
(15) An elector is guilty of an offence if the elector fails to vote at an election.
...
(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.
Note: A defendant bears an evidential burden in relation to the matter in subsection (15B) (see subsection 13.3(3) of the Criminal Code).

5. Pursuant to  section 4D  of the  Commonwealth Electoral Act , Chapter 2 of the Criminal Code (Cth) applies to all offences against that Act. As a strict liability offence under the Criminal Code, the offence contains no fault element, but the defence of mistake of fact applies.[1] With respect to that defence, defendants bear the burden of establishing that they laboured under a mistake of fact to the civil standard.[2] Further, to the extent that a failure to vote may be characterised as an omission, section 4.3 of the Criminal Code applies.

Background

6. The facts are not in dispute. It is agreed by the parties that on 21 August 2010, the defendant was enrolled as an elector on the Commonwealth Electoral Roll for the Division of Hindmarsh. An election was held on that date. The defendant did not attend the polling booth on that date. The defendant did not have his name marked off the electoral roll. The defendant did not receive ballot papers and deposit them into a ballot box. The defendant made a deliberate decision not to attend the polling booth on 21 August 2010.
7. The defendant was charged with the offence of failing to vote without a valid and sufficient reason contrary to section 245(15) of the  Commonwealth Electoral Act . The following particulars were provided as part of the complaint:[3]
   1. On the twenty first day of August 2010, there was a general election and a Senate election in the State of South Australia.
   2. That the defendant on the twenty first day of August 2010 was enrolled as an elector on the Commonwealth Electoral Roll for the Division of Hindmarsh and did not vote at the election held on that date.
   3. That the defendant failed to vote at the election and has not paid the penalty for failing to vote.
   4. That the Complainant is an officer authorised in writing by the Electoral Commissioner to institute proceedings for an offence against Section 145 of the Commonwealth Electoral Act 1918.
8. On 7 December 2011, the defendant pleaded not guilty to the charged offence. The trial proceeded before a Magistrate. As noted above, the parties agreed all relevant facts. No evidence was led by either party.
9. On 3 February 2012, the Magistrate convicted the defendant of the offence as charged. In the course of his reasons, he made the following observations:[4]

1) The court must consider a question of law. The Defendant challenges the validity of compulsory voting in Federal Elections. He asserts that  Section 245(15)  of the Act is not a valid law.
2) The basis of the Defendant’s argument is that  Section 245(15)  is contrary to the basic meaning of the word ‘vote’ as it forces a person to make a choice. He further asserts that Parliament can not compel persons to vote.
3)  Section 245(15)  makes it an offence to fail to vote at a Federal election without a valid and sufficient reason for the failure. This subsection, combined with  subsection 245(1)  makes voting at Federal elections compulsory.
4) Voting at Federal Elections has been compulsory since 1924. The validity of compulsory voting in Federal Elections has long been upheld by the High Court of Australia. Judd v McKeon [1926] HCA 33; (1926) 38 CLR 380 involved the predecessor to  Section 245.  Subsequent Members of the High Court have cited that authority without casting any doubt on its validity.
5) As a decision of the High Court, Judd v McKeon must be followed by lower courts unless and until it is overruled by the High Court.
6) The act of voting is a process set out in  Part XVI  of the Act. In pursuance of his defence the Defendant sought reliance on the meaning of the word ‘vote’ as defined in various dictionaries.
7) However, the meaning of the words ‘to vote’ in regard to Federal Elections is well established by case law.
8)  Section 245  of the Act furthers the requirements of Sections 7 and 24 of the Constitution that, Parliament be ‘directly chosen by the people’ by providing for compulsory voting subject to limited exceptions.
9) As the defendant has admitted that he did not vote at the 2010 Federal Election (and that he did not pay the pecuniary penalty for failing to vote) unless he can show a valid and sufficient reason for his failure, there is compelling evidence to find the charge proved.
10) It appears the Defendant’s reason for not voting is based on his assertions about the invalidity of the compulsory voting system as constituting ‘a valid and sufficient reason’ for failing to vote.
11) Nevertheless, as remarked by Hogarth J in Douglas v Ninnes (1976) 14 SASR 377 at 383:
Objection to compulsory voting of itself does not amount to a valid and sufficient reason... The principle seems to be that objection to compulsion is simply objection to being obliged to obey the law as laid down by Parliament, a contradiction of the obligation imposed by Parliament, and not a valid and sufficient reason for not observing it.
12) I find that the defendant has not discharged the evidential burden to satisfy the court that he has ‘a valid and sufficient reason’ for failing to vote at the Federal Election held in August 2010.
13) I am satisfied of my finding and determination beyond reasonable doubt.
14) I find the Defendant guilty of having committed the offence of failing to vote, contrary to Section 245(15) of the Act as charged.
[Emphasis in original.]

10. On 24 February 2012, the defendant appealed to this Court. Section 42 of the Magistrates Court Act 1991 (SA) relevantly provides:

Appeals
(1) A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from a preliminary examination).
...
(2) The appeal lies—
(a) in the case of an action relating to an offence categorised under the Summary Procedure Act 1921 as an industrial offence—to the Industrial Court; or
(b) in any other case—to the Supreme Court constituted of a single Judge (but the Judge may, if he or she thinks fit, refer the appeal for hearing and determination by the Full Court).
...

11. By his notice of appeal, the defendant sought “[a]n order quashing the judgment the subject of the [a]ppeal”. As an alternative, the defendant sought an order referring the appeal for hearing and determination by the Full Court pursuant to section 42(2)(b) of the Magistrates Court Act and rule 280(2) of the Supreme Court Civil Rules 2006 (SA). Rule 280(2) provides:

The Court (constituted of a Judge) may, on application by a party or on its own initiative, refer an appellate proceeding for hearing and determination by the Full Court if the difficulty or importance of the questions raised justify the reference.

Pursuant to section 42(2)(b) of the Magistrates Court Act, an order was made referring the appeal for hearing and determination by the Full Court.[5] The defendant seeks to agitate what are claimed to be issues of fundamental importance arising under the Commonwealth Constitution and the  Commonwealth Electoral Act .

The Commonwealth Electoral System

12.  Section 245  of the  Commonwealth Electoral Act  forms part of the Commonwealth electoral system. As noted above, section 245(1) creates a duty to vote.  Section 245(15)  makes it an offence not to vote and prescribes a penalty for the offence. The section is to be considered in the context of the legislation as a whole. Before coming to discuss the defendant’s attack on  section 245 , it is important to place the section in its appropriate statutory context.
13. The  Commonwealth Electoral Act  provides for a roll of electors for each State and Territory.[6]  Part VI  is headed “Electoral Rolls” and provides that each of the rolls of electors are made up of rolls for the Divisions within a State or Territory.[7] The rolls are to contain the name of each elector and such further particulars as are prescribed.[8] The rolls must contain the address of each elector, save for those electors granted a request by the Electoral Commissioner under  section 104  of the Act, and those who are itinerant electors or eligible overseas electors under the Act.[9]  Part VII  of the Act deals with qualifications and disqualifications for enrolment and voting.
14.  Part VIII  of the Act sets up a system of compulsory enrolment. Generally, every person who is entitled to be enrolled for any Subdivision, whether by way of enrolment or transfer of enrolment, and whose name is not on the roll, is required to “forthwith fill in and sign a claim and send or deliver the claim to the Electoral Commissioner”.[10] A person whose name is not on the roll on the expiration of 21 days from the date upon which that person becomes entitled to be enrolled is guilty of an offence.[11]
15.  Section 101  of the  Commonwealth Electoral Act  is also of relevance and provides:

Compulsory enrolment and transfer
(1) Subject to subsection (5A), every person who is entitled to be enrolled for any Subdivision, otherwise than by virtue of  section 94 ,  94A ,  95 , 96 or  100 , whether by way of enrolment or transfer of enrolment, and whose name is not on the Roll, shall forthwith fill in and sign a claim and send or deliver the claim to the Electoral Commissioner.
...
(6) A person who fails to comply with subsection (1), (4) or (5) is guilty of an offence punishable on conviction by a fine not exceeding 1 penalty unit.
(6AA) An offence against subsection (6) relating to a failure to comply with subsection (1) or (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
...

16. Under Part XVI of the Act only an enrolled person may be admitted to vote for the election of senators for a particular State or of a member of the House of Representatives for the Division in which the elector is enrolled.[12] Postal votes aside, an enrolled elector is entitled to vote at any polling place for the Division for which he or she is enrolled or to vote as an absent voter, on making a declaration in an approved form, at any other polling place within the State or Territory for which he or she is enrolled.[13]
17. Once enrolled, a person will become an “elector”, which is defined by section 4(1) of the Act to mean “any person whose name appears on a Roll as an elector”.
18. Upon attendance at the polling booth, the presiding officer must put specific questions to each person.[14] The presiding officer must hand to the person claiming to vote a ballot paper, duly initialled by the presiding officer, upon satisfaction of one of two criteria. The first is if the name under which the person claims to vote is on the certified list of voters, or an approved list of voters for the polling place, and the person’s answers to the prescribed questions show that he or she is entitled to vote. The second is if the person claims to vote as an absent elector and he or she complies with the relevant provisions.[15] If the person is claiming to vote as an absent voter, he or she will be required to identify the Division for which he or she is enrolled.[16]
19. Section 232(1) provides that the presiding officer, immediately after handing a ballot paper to a person whose name is on the certified list of voters, must place a mark against the person’s name on the certified list, or record electronically against the approved list, the fact that the person has been handed a ballot paper. By section 232(2), the presiding officer is also required to make a record of the name of each elector who casts a declaration vote and, in the case of an absent voter, the Division for which the elector declares under section 222(1) or  section 222(1A)  of the  Commonwealth Electoral Act  that he or she is enrolled.
20.  Sections 233(1) , 233(2),  239 (1),  240 (1) and  245  of the  Commonwealth Electoral Act  are of particular importance to the resolution of this appeal. The relevant terms of  section 245  have been earlier extracted.  Sections 233(1) ,  233 (2),  239 (1) and  240 (1) are in the following terms:

233 Vote to be marked in private
(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.
(2) A presiding officer shall enclose each ballot paper of an absent voter returned to the presiding officer under subsection (1) in the envelope bearing the declaration made by the voter under  subsection 222(1)  or (1A), securely fasten the envelope and place it in the ballot box.
...
239 Marking of votes in Senate election
(1) Subject to subsection (2), in a Senate 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.
...
240 Marking of votes in House of Representatives election
(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.
...

The Appeal

21. The defendant contended that the right to vote is entrenched by the Commonwealth Constitution and that the  Commonwealth Electoral Act , insofar as it created the obligation to vote, was unconstitutional. The defendant submitted, in particular, that the Commonwealth Constitution vests in him a right to vote which necessarily carries with it the right to choose whether or not to exercise his right. To the extent that  cea1918233 /s245.html" class="autolink_findacts">section 245(15) of the  Commonwealth Electoral Act  compels the defendant to vote, it is said to be invalid as being contrary to the right which, the defendant contends, the Commonwealth Constitution affords him.
22. In the alternative, the defendant submitted that the  Commonwealth Electoral Act  is to be read subject to the limitations and restrictions imposed by the Commonwealth Constitution.
23. Further, it was submitted that the power to make laws as to the conduct of elections is a purposive power, the purpose being to ensure that both the House of Representatives and the Senate shall be composed of members directly chosen by the people. The defendant then contended that as it is not incompatible with section 24 of the Commonwealth Constitution to attend a polling booth and deposit an unmarked ballot paper, an obligation to mark the ballot paper does not give effect to that purpose. It was argued that consequently it cannot be incompatible with section 24 to not attend at all in the exercise of choice. Finally, it was said that due to the secrecy of the ballot, the obligation to vote is unenforceable and therefore can serve no purpose. Consequently, it was argued that section 245(15) cannot be a valid exercise of the purposive power.
24. Australia has a system of representative democracy. The Full Bench of the High Court in Lange v Australian Broadcasting Corporation[17] discussed the evident intention of the Commonwealth Constitution by references to Convention Debates and the terms of the Commonwealth Constitution itself. Their Honours observed:[18]

That the Constitution intended to provide for the institutions of representative and responsible government is made clear both by the Convention Debates and by the terms of the Constitution itself. Thus, at the Second Australasian Convention held in Adelaide in 1897, the Convention, on the motion of Mr Edmund Barton, resolved that the purpose of the Constitution was “to enlarge the powers of self-government of the people of Australia”.
Sections 1, 7, 8, 13, 24, 25, 28 and 30 of the Constitution give effect to the purpose of self-government by providing for the fundamental features of representative government. ...
[Footnotes omitted.]

Sections 7 and 24 of the Commonwealth Constitution introduce the notion of representative democracy through the words “directly chosen by the people”:

7. The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate.
But until the Parliament of the Commonwealth otherwise provides, the Parliament of the State of Queensland, if that State be an Original State, may make laws dividing the State into divisions and determining the number of senators to be chosen for each division, and in the absence of such provision the State shall be one electorate.
Until the Parliament otherwise provides there shall be six senators for each Original State. The Parliament may make laws increasing or diminishing the number of senators for each State, but so that equal representation of the several Original States shall be maintained and that no Original State shall have less than six senators. The senators shall be chosen for a term of six years, and the names of the senators chosen for each State shall be certified by the Governor to the Governor-General.
...
24. The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of senators. The number of members chosen in the several States shall be in proportion to the respective members of their people, and shall, until the Parliament otherwise provides, be determined, whenever necessary, in the following manner:
(i.) A quota shall be ascertained by dividing the number of the people of the Commonwealth, as shown by the latest statistics of the Commonwealth, by twice the number of senators:
(ii.) The number of members to be chosen in each State shall be determined by dividing the number of people of the State, as shown by the latest statistics of the Commonwealth, by the quota; and if on such division there is a remainder greater than one-half of the quota, one more member shall be chosen in the State.
But notwithstanding anything in this section, five members at least shall be chosen in each Original State.
[Emphasis added.]

25. These provisions have been construed by the High Court to provide constitutional protection of the right to vote. In Lange v Australian Broadcasting Corporation, the Court said:[19]

Sections 7 and 24 of the Constitution, read in context, require the members of the Senate and the House of Representatives to be directly chosen at periodic elections by the people of the States and of the Commonwealth respectively. This requirement embraces all that is necessary to effectuate the free election of representatives at periodic elections. What is involved in the people directly choosing their representatives at periodic elections, however, can be understood only by reference to the system of representative and responsible government to which ss 7 and 24 and other sections of the Constitution give effect.
[Footnotes omitted.]

Most recently in Rowe v Electoral Commissioner, French CJ described sections 7 and 24 as “bedrock” provisions:[20]

The Constitution requires that members of Parliament be “directly chosen by the people”. That requirement is “constitutional bedrock”. It confers rights on “the people of the Commonwealth” as a whole. It follows, as Isaacs J said in 1912, that: “The vote of every elector is a matter of concern to the whole Commonwealth.” Individual voting rights and the duties to enrol and vote are created by laws made under the Constitution in aid of the requirement of direct choice by the people.
An electoral law which denies enrolment and therefore the right to vote to any of the people who are qualified to be enrolled can only be justified if it serves the purpose of the constitutional mandate. If the law’s adverse legal or practical effect upon the exercise of the entitlement to vote is disproportionate to its advancement of the constitutional mandate, then it may be antagonistic to that mandate. If that be so, it will be invalid. Laws regulating the conduct of elections, “being a means of protecting the franchise, must not be made an instrument to defeat it”. As the Court said in Snowdon v Dondas: “The importance of maintaining unimpaired the exercise of the franchise hardly need be stated.”
[Footnotes omitted.]

Crennan J expressed herself in the following terms:[21]

In establishing the Commonwealth, the Constitution directs, and gives effect to, a system of representative government (sometimes called representative democracy) which involves direct popular election. The Constitution left it to Parliament, within the limits fixed by the Constitution, to prescribe the form of representative government. The matters of qualification for the franchise and the method of election for both the Senate and the House of Representatives are left by the Constitution to the political choice of Parliament, so long as any electoral system adopted remains within the broad range of alternatives by which provision may be made for Houses of Parliament composed of members “directly chosen by the people”.
...
The historical circumstances, and the stage reached in the evolution of representative government, as at the date of Federation assist in exposing the bedrock and show that the relevant words of ss 7 and 24 have always constrained Parliament, in a manner congruent with Gleeson CJ’s conclusion that the words of ss 7 and 24 have come to be a constitutional protection of the right to vote.
[Footnotes omitted.]

26. The Commonwealth Constitution does not vest a personal right in the defendant or any elector to vote in a federal election. The rights conferred by sections 7 and 24 are given to the “people of the State” or the “people of the Commonwealth”.[22] The only provision of the Commonwealth Constitution that refers to a right to vote is section 41. That provision does not bear upon the competence of Parliament to make laws making voting compulsory. Its purpose was merely “to ensure that those who enjoyed the constitutional franchise should not lose it when the statutory franchise was granted”.[23] Thus, section 41 is now spent.[24] At the time of federation, voting was not compulsory and section 41 is to be understood in that context.
27. Sections 7 and 24 mandate a system of representative government with a particular characteristic or operation, namely, ultimate control by the people, exercised by representatives who are elected periodically.[25]
28. The public, rather than private, nature of the right was addressed by McHugh J in Langer:[26]

... Members of Parliament may be “chosen by the people” even though “the people” dislike voting for them. Section 24 of the Constitution is concerned with choices from the list of candidates who offer themselves for election, not the wishes of individual electors. ...
...
The purpose of the words “chosen by the people” in s 24 of the Constitution is to ensure that the members of the House of Representatives are elected by the direct vote of qualified electors in contrast to being appointed to office or being elected by electoral colleges or similar bodies. Those words were not intended to confer a personal right on each elector to vote for the candidate of his or her choice. Indeed, s 24 of the Constitution is not concerned with the method of electing members, with the franchise or with any of the other matters that are relevant to the holding of federal elections except the computation of each State’s representation in the House of Representatives. Section 24 leaves those matters to other sections of the Constitution, ss 29, 30 and 31 in particular.
[Footnotes omitted.]

McHugh J continued:[27]

The words “chosen by the people” are therefore words of inexact application, dependent upon matters of fact and degree and always involving a value judgment. They describe the result of a process that begins with the calling of an election for the House of Representatives and ends with the declaration of the poll. They do not confer individual rights on electors. The “rights” conferred by the section are given to “the people of the Commonwealth” - not individuals, although by necessary implication a member of the public may bring an action to declare void legislation that is contrary to the terms of s 24 or what is necessarily implied by it. Whether or not a member has been “chosen by the people” depends on a judgment, based on the common understanding of the time, as to whether the people as a class have elected the member. It does not depend on the concrete wishes or desires of individual electors.
[Footnotes omitted.]

29. Most recently, Kiefel J in Rowe v Electoral Commissioner[28] expressed the same view. In doing so, her Honour discussed the possible implications that arose from earlier observations of Gleeson CJ:[29]

In Roach Gleeson CJ did make reference to “the right to vote”. His Honour said that, having regard to what had been said in Attorney-General (Cth); Ex rel McKinlay v The Commonwealth by McTiernan and Jacobs JJ, he saw “no reason to deny that ... the words of ss 7 and 24, because of changed historical circumstances including legislative history, have come to be a constitutional protection of the right to vote”. McTiernan and Jacobs JJ had said that “the long established universal adult suffrage may now be recognised as a fact”. In context, Gleeson CJ may have been referring to what is generally described as an incident of universal adult suffrage, rather than an individualised view of “the franchise” which is protected by ss 7 and 24. His Honour had earlier referred to the dictionary definition of “universal suffrage”, which, it may be expected, was given as the right of all adults to vote.
Earlier authority is expressive of those enfranchised in a collective sense. In McKinlay McTiernan and Jacobs JJ pointed out that it was incorrect to equate “the people” referred to in s 24 with electors, or as taking account of those enfranchised individually. Rather, the term referred to a collective body. Gibbs J compared the use of the word “electors” in other sections (s 41 being one) with the use of “the people” in s 24.
References to “the franchise” should therefore be understood to refer, collectively, to those people who are qualified to vote. Individuals cannot be selected by legislation for disqualification. Therefore disenfranchisement or exclusion from voting refers to a disqualification of a class of people. “Chosen by the people” refers to the election of a representative by all those qualified to vote, who do vote.
[Footnotes omitted.]

30. These authorities allow the conclusion that the phrase “directly chosen by the people” is a broad expression used to identify the requirement of a popular vote. The phrase should not be dissected in a way that would give the expression an operation distinct from sections 7 and 24 read as a whole.[30] It does not require a particular electoral system or that it have some particular feature.[31] The expression admits a considerable measure of legislative freedom as to the method of choice of members of Parliament. As much is plain from the decisions of the High Court in Ex rel McKinlay v The Commonwealth,[32] McGinty v Western Australia,[33] Langer v The Commonwealth[34] and Mulholland v Australian Electoral Commission.[35] Further, as Gummow and Hayne JJ observed in Mulholland v Australian Electoral Commission:[36]

The recurrent phrase in the Constitution “until the Parliament otherwise provides” accommodates the notion that representative government is not a static institution and allows for its development by changes such as those with respect to the involvement of political parties, electoral funding and “voting above the line”. Some of these changes would not have been foreseen at the time of federation or, if foreseen by some, would not have been generally accepted for constitutional entrenchment.
Thus, care is called for in elevating a “direct choice” principle to a broad restraint upon legislative development of the federal system of representative government. ...

31. Further again, in McGinty v Western Australia Gummow J said:[37]

It does not follow from the prescription by the Constitution of a system of representative government that a voting system with a particular characteristic or operation is required by the Constitution. What is necessary is the broadly identified requirement of ultimate control by the people, exercised by representatives who are elected periodically. Elements of the system of government which were consistent with, albeit not essential for, representative government might have been constitutionally entrenched or left by the Constitution itself to the legislature to provide and modify from time to time. This is what was done.

32. As discussed above, the Commonwealth Constitution does not mandate any particular electoral system. The choice as to the features of that system has been left to the Commonwealth Parliament.[38]
33. Sections 9, 10 and 51(xxxvi) of the Commonwealth Constitution vest power in the Commonwealth Parliament to make laws prescribing the method of choosing senators, provided that the method is uniform for all of the States. Sections 31 and 51(xxxvi) of the Commonwealth Constitution vest power in the Commonwealth Parliament to make laws relating to elections for the House of Representatives. As French CJ explained in Rowe v Electoral Commissioner:[39]

When the Commonwealth Constitution came into effect in January 1901, the qualification of electors of members of the House of Representatives was, by operation of s 30, that prescribed by State law as the qualification of electors of the more numerous House of Parliament of each State. Section 8 prescribed that the qualification of electors of members of the House of Representatives was the qualification of electors of senators. There was a transitional “constitutional franchise”. Section 30 was to apply until the Commonwealth Parliament otherwise provided. In addition, by ss 10 and 31, until the Parliament of the Commonwealth otherwise provided, the laws in force in each State relating to elections for the more numerous House of the Parliament of the State, as nearly as practicable, applied to elections of senators for the State and of members of the House of Representatives. The Parliament of the Commonwealth was also empowered to make laws prescribing the method of choosing senators, but so that such method should be uniform for all States.
The words “[u]ntil the Parliament otherwise provides” in ss 10, 30 and 31 attract the power conferred upon the Parliament by s 51(xxxvi) to make laws “with respect to ... matters in respect of which this Constitution makes provision until the Parliament otherwise provides”. Read with s 30, s 51(xxxvi) empowers the Parliament to make laws providing for the qualification of electors of members of the House of Representatives. By operation of s 8 those qualifications are also the qualifications of the electors of senators. Read with ss 10 and 31, s 51(xxxvi) also empowers the Parliament to make laws relating to the election of senators and members of the House of Representatives. Those powers are exclusive to the Commonwealth. Isaacs J characterised the power to make laws with respect to elections as a “plenary power over federal elections”. To say that of the power under s 51(xxxvi) is to say what is true of every power conferred by s 51. It is a power subject to the limitations imposed by the Constitution. The exercise of that power is in issue in this case.
[Footnotes omitted.]

34. The powers conferred by sections 10, 31 and 51(xxxvi) of the Commonwealth Constitution are conferred “subject to this Constitution”. Thus the power contained in sections 10, 31 and 51(xxxvi) may only be exercised subject to the requirement contained in sections 7 and 24 that senators for the States be “directly chosen by the people of the State” and members of the House of Representatives be “directly chosen by the people of the Commonwealth”.[40]
35. It must also be borne in mind that the method of choice adopted by the Commonwealth Parliament is not an end in itself but a means to an end, namely, the election of senators and members of the House of Representatives “directly chosen by the people”, of the respective States, in the case of the Senate, and of the Commonwealth, in the case of the House of Representatives.[41]
36. The starting point for determining whether a law as to the method of choice of senators and members of the House of Representatives is a valid law of the Commonwealth Parliament is to ask whether the law is one with respect to the head of power contained in sections 10, 31 and 51(xxxvi).[42] If it is, subject to the constitutional mandate of sections 7 and 24, the law is valid. Whether or not the law offends the constitutional mandate contained in sections 7 and 24 is determined by asking two questions. First, does the law operate so as to detract from the constitutional mandate.[43] Second, if the answer to the first question is in the affirmative, is the law nevertheless reasonably appropriate and adapted to serve an end consistent with the maintenance of the constitutionally prescribed system of representative government.[44]
37. The mandate is flexible with the consequence that whether or not a law with respect to the subject matter is inconsistent with it imports questions of fact and degree having regard to contemporary circumstances.[45] The High Court has not as yet settled upon any one test for determining the outcome of what is an evaluative exercise.
38.  Section 245(15)  of the  Commonwealth Electoral Act  is a law with respect to elections.[46] It is, therefore, supported by sections 10, 31 and 51(xxxvi) of the Commonwealth Constitution. It is also a law which operates to promote full, equal and effective participation in the electoral process and is clearly capable of being viewed as operating to further the constitutional mandate.[47] No need arises to consider whether or not  section 245(15)  of the  Commonwealth Electoral Act  is reasonably appropriate and adapted to serve an end consistent with the constitutional mandate.
39. The defendant submitted that previous High Court authority does not establish that an elector has to mark the ballot paper. Alternatively, if a mark has to be placed on the ballot paper the cases do not define what “mark” means. It was further submitted that, in accordance with authority, the obligation to mark a ballot paper was not enforceable. It was emphasised that a failure by an elector who had attended a polling station, had their name crossed off the roll, had obtained a ballot paper, then failed to mark that ballot paper before placing the paper in the ballot box would not give rise to an offence. It was said in these circumstances that as the defendant did not intend to vote and in particular, did not intend to mark the ballot paper, he was under no obligation to go through the empty process of attending to the other requirements of the legislation. It was said that otherwise the legislation would amount to an obligation to attend at a polling station and go through the meaningless process culminating in the depositing of an unmarked ballot paper.
40. The defendant further submitted that by choosing not to attend a polling booth the defendant did vote within the meaning of  section 245(15)  in that he exercised his right to vote by declining to do so thereby discharging the duty owed by him under  section 245(1)  of the  Commonwealth Electoral Act . Consequently, it was said that he had not committed any offence.
41. The defendant also contended that the offence created by section 245(15) of the  Commonwealth Electoral Act  is not specific enough as to the requirements of the act of voting such that a non-attendance can be said to amount to a failure to vote. It was also said that the prosecution did not discharge the onus it bore of establishing that the defendant did not have a valid and sufficient reason for his failure to vote.
42. The elements of the offence are capable of discernment in the usual way as a matter of statutory construction. Counsel for the respondent, the Australian Electoral Commission, and the intervener, the Attorney-General of South Australia, submitted that the consequence is that “failure to vote” within the meaning of  section 245(15)  includes failing at all to attend a polling booth.
43. Section 4D of the  Commonwealth Electoral Act  provides that Chapter 2 of the Criminal Code applies to all offences against that Act. Chapter 2 of the Criminal Code relevantly contains sections 13.1 to 13.5 which deal with the burdens and standards of proof applicable to offences to which the Criminal Code applies. Section 13.3(3) provides:

A defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter. The exception, exemption, excuse, qualification or justification need not accompany the description of the offence.

Pursuant to section 13.3(1), this is an evidential burden.

44.  Section 245(15B)  of the  Commonwealth Electoral Act  provides that  section 245(15)  of  Commonwealth Electoral Act  does not apply if the elector has a valid and sufficient reason for the failure to vote.  Section 245(15B)  is an exception or exemption to the offence created by  section 245(15). [48] An evidential burden in respect of this exception or exemption was borne by the defendant.[49]
45. In respect of the requirement to mark the ballot paper, it was the submission of the Commonwealth that a breach of that duty did not give rise to any offence. It was said that although part of the process of voting, this requirement was not enforceable. South Australia submitted that the marking of the ballot was prescribed as one of the duties of an elector by the express terms of  section 233.  This in turn formed part of voting and a failure to mark a ballot paper would lead to the conclusion that the offence of failing to vote had been committed.
46. The High Court on two occasions has considered challenges to legislation concerning compulsory voting.[50] Judd v McKeon concerned section 128A(12) of the Commonwealth Electoral Act 1918-1925 (Cth).[51] Faderson v Bridger concerned section 128A(12) of the Commonwealth Electoral Act 1918-1966 (Cth).[52] Section 128A(12) was identical in each case and is the progenitor to  section 245(15)  of the  Commonwealth Electoral Act . In each case, section 128A(1) was in the following terms:

It shall be the duty of every elector to record his vote at each election.

Section 128A(12) relevantly provided:

Every elector who- (a) fails to vote at an election without a valid and sufficient reason for such failure ... shall be guilty of an offence.

47. Section 128A(1) refers to the duty being the duty to “record” a vote, whereas  section 245(1)  refers to a duty to vote. The defendant submitted that this was a material difference and recognised that Parliament drew a distinction between recording a vote and voting and that in particular, there was no obligation under  section 245(1)  to record a vote.
48. A review of the explanatory memorandum would suggest that the reason for the amendment was to render the language of the present section gender neutral. To my mind, this is the evident reason for the amendment. The duty to vote and the duty to record a vote have the same content.
49. Interpreting section 128A, Barwick CJ in Faderson v Bridger, with the concurrence of McTiernan and Owen JJ, said:[53]

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.

50. Similarly, although in the context of considering the prohibition of misleading statements “in or in relation to the casting of his vote”, the Court in Evans v Crichton-Browne said:[54]

With all respect to the arguments presented on behalf of the petitioners, we can see nothing in the context provided by the Act as a whole, or in the general considerations of policy upon which the petitioners relied, which warrants a departure from the natural meaning of the words of par. (e), which, we hold, refer to the act of recording or expressing the political judgment which the elector has made rather than to the formation of that judgment. It would no doubt be too narrow to regard the casting of the vote as the mere act of putting the paper in the ballot-box—the words would appear to refer to the whole process of obtaining and marking the paper and depositing it in the ballot-box. However, the words clearly do not refer to the whole conduct of the election, which begins before and ends after the votes are cast.

51. In Douglass v Ninnes, Hogarth J in addressing parallel provisions in the South Australian legislation, reasoned:[55]

... It follows in my view that the verb “vote” in sub-s (11) is to be construed as relating to those who have duly obtained their voting papers and, possibly, placed them in the appropriate ballot box or otherwise (as in the case of a postal vote) returned them to the proper destination. I do not think that a person who casts an informal vote at an election is one in breach of sub-s (11).

52. Some assistance as to the meaning of “to vote” may be gained by the consideration of the use of the word “chosen” in sections 7, 9 and 24 of the Commonwealth Constitution. As observed above, the  Commonwealth Electoral Act  provides an electoral system in support of the broad constitutional purpose of there being a representative democracy in Australia. It was in the context of  section 9  that Knox CJ, Gavan Duffy and Starke JJ in Judd v McKeon observed:[56]

... By sec. 9 of the Constitution Parliament is empowered to make laws prescribing the method of choosing Senators, subject to one condition or qualification only, namely, that the method shall be uniform for all the States. This power, subject only to the condition mentioned, is plenary and unrestricted; and the only reason advanced for denying to Parliament the right to prescribe that every qualified elector shall record his vote was founded on the use of the word “choosing.” It was said that the choosing of a candidate implied a desire on the part of the elector that that candidate should be elected, and that consequently the power of Parliament was limited to prescribing the method by which electors desiring that a candidate should be elected should signify that desire. We do not think the meaning of the expression “choosing Senators” in sec. 9 of the Constitution can be so restricted. In common parlance “to choose” means no more than to make a selection between different things or alternatives submitted, to take by preference out of all that are available. As an illustration of the meaning of the corresponding noun “choice” the Oxford Dictionary quotes the phrase “I have given thee thy choice of the manner in which thou wilt die,” and this use of the word seems to exclude the idea that a right of choice can only be said to be given when one or other of the alternatives submitted is desired by the person who is to exercise the right, or, in other words, to choose between them.

53. Isaacs J, in separate reasons, observed:[57]

But I am equally free from doubt that Parliament, in prescribing a “method of choosing” representatives, may prescribe a compulsory method. It may demand of a citizen his services as soldier or juror or voter. The community organized, being seised of the subject matter of parliamentary elections and finding no express restrictions in the Constitution, may properly do all it thinks necessary to make elections as expressive of the will of the community as they possibly can be. The word “choose” in this connection is the time-honoured expression for the election of a parliamentary representative. Mr. Burke, in his famous speech, said to his constituents: “You choose a member indeed, but when you have chosen him he is not a member of Bristol, but he is a member of Parliament.” A method of choosing which involves compulsory voting, so long as it preserves freedom of choice of possible candidates, does not offend against the freedom of elections, as established and recognized by the Statute of Westminster I. (3 Edw. I. c. 5).

54. The approach in Judd v McKeon was accepted by the Court in Faderson v Bridger.[58] Barwick CJ, in the context of what excuses would be valid, reasoned:[59]

The first thing I should like to say is that the finding of the magistrate that the appellant did not “have any preference amongst the candidates”, in my opinion, does not carry the appellant to the point where it can be said that he could not mark the ballot paper in an order of preference. However much the elector may say he has no personal preference for any candidate, that none of them will suit him, he is not asked that question nor required to express by his vote that opinion. He is asked to express a preference amongst those who are available for election, that is, to state which of them he prefers, if he must have one or more of them as Parliamentary representatives, as he must, and to mark down his vote in an order of preference of them. In that respect I would adopt if I might a sentence from the judgment of Crockett J. in Lubcke v. Little:
“Just as perfection is unobtainable, so too is complete imperfection. The gradation of de-merits in everyone, including prospective parliamentarians, is infinite and so no one individual will compare identically with another—even in denigration.”
To face the voter with a list of names of persons, none of whom he may like or really want to represent him and ask him to indicate a preference amongst them does not present him with a task that he cannot perform.
[Footnote omitted.]

55. The reasoning in Judd v McKeon[60] and Faderson v Bridger[61] was also supported by the Court in Langer,[62] although in the context of section 24 of the Commonwealth Constitution. Brennan CJ summarised the position as follows:[63]

What the Constitution requires is that the law prescribe a method of voting which leaves the voter free to make a choice, not that the law leave the voter free to choose the method of voting by which a voter’s choice is to be made. A method which requires full preferential voting satisfies the constitutional requirement. ...

56. His Honour continued:[64]

... Provided the prescribed method of voting permits a free choice among the candidates for election, it is within the legislative power of the Parliament. Section 24 of the Constitution does not limit the Parliament’s selection of the method of voting by which a voter’s choice is made known so long as the method allows a free choice. Section 240 permits a voter to make a discriminating choice among the candidates for election to the House of Representatives. An election in which members of the House of Representatives are elected pursuant to such a method of voting achieves what s 24 requires, namely, a House of Representatives composed of members directly chosen by the people.
It follows that the Parliament is empowered to prescribe a method of voting in an election for the House of Representatives that requires a voter to fill in a ballot paper in accordance with s 240, although that method requires a voter to choose by allocating preferences among candidates for whom the voter does not wish to vote. It is not to the point that, if a ballot paper were filled in otherwise than in accordance with s 240, the vote would better express the voter’s political opinion.

57. Brennan CJ’s reasoning in Langer[65] was supported by McHugh J in Mulholland v Australian Electoral Commission.[66]
58. Dawson J in Langer, although dissenting as to the interpretation of the Act and the application of the implied freedom of political communication, agreed with the reasoning of the majority and Isaacs J in Judd v McKeon:[67]

... The Constitution does not require the provision of any particular electoral system. Thus, the provision in s 240 for a preferential voting system is clearly within power notwithstanding that it requires a choice to be made in a specified manner and, standing alone, requires a preference to be expressed in respect of each candidate. Whatever the system, the Constitution requires that a choice must be made and, as I pointed out in Australian Capital Television Pty Ltd v The Commonwealth, the choice involved must obviously be a genuine, or informed, choice which requires access on the part of the voter to the available alternatives in the making of the choice. ...
[Footnotes omitted.]

59. Toohey and Gaudron JJ in Langer gave a similarly broad interpretation to “chosen”:[68]

When regard is had to the absence of any reference in ss 7 and 24 to electors, elections or persons being elected, the limited nature of the franchise which existed at the time of federation, the separate constitutional provisions concerned with the franchise and the numbers of senators and members of the House of Representatives, the requirement that senators and members of the House of Representatives be “chosen by the people” must be taken as primarily mandating a democratic electoral system and as bearing on the features of that system only in the sense that it prohibits any feature that prevents it being said that the Senate or the House of Representatives is, or would, in the event of an election, be composed of persons “chosen by the people”. In this context and no matter how broadly the words “chosen by the people” are construed, there is nothing to support the view that members who are elected pursuant to a full preferential voting system, or the modified preferential voting system effected by ss 240, 268 and 270 of the Act, are not properly described as “chosen by the people”. The mere fact that a voter’s ability to cast a formal vote and, at the same time, vote against a candidate is limited in the way earlier described does not have the effect that the House of Representatives is not properly described as composed of members “chosen by the people”. Accordingly s 240 is valid and it follows that the plaintiff’s argument with respect to s 329A of the Act must fail.
[Footnotes omitted.]

60. McHugh J in Langer[69] supported the reasoning in Judd v McKeon[70] and Faderson v Bridger.[71] However, he also hinted at the civic duty associated with the act of voting:[72]

... Members of Parliament may be “chosen by the people” even though “the people” dislike voting for them. Section 24 of the Constitution is concerned with choices from the list of candidates who offer themselves for election, not the wishes of individual electors. ...
...
Thus, a member is “chosen by the people” even if he or she is elected unopposed or if the majority of voters under a preferential system of voting have refused to give their first preference vote to the person elected. Similarly, members are “chosen by the people” when they are elected by a system that requires each elector in an electorate to indicate his or her order of preference for each candidate in the election.

61. Similarly, Gummow J in Langer reasoned:[73]

The plaintiff submits, in effect, that s 24 of the Constitution requires that members of the House of Representatives be elected in accordance with the desires or intentions of the electorate. In McGinty v Western Australia I expressed the view that this phrase in s 24 was included in the Constitution to perform a function which is quite different. In my view, s 24 does not confer upon each elector a personal right to vote for the candidate of that elector’s choice, and, therefore, a right (or immunity) not to state a preference for a candidate whom the elector does not wish to be elected. Section 24 is not concerned with the particular form to be taken by the franchise in a system of direct election of members of the House of Representatives. It follows that there is no constitutional limitation upon giving to s 240 the operation it has upon its terms. Therefore, there is no limitation which flows from s 240 into s 329A so as to impugn the validity of s 329A.
[Footnote omitted.]

62. McHugh J in Langer also noted the use of compulsory preferential voting throughout Australia’s history in what ostensibly is his attempt to look at “matters of fact and degree” and value judgment, as he earlier reasoned was necessary:[74]

Compulsory preferential voting does not appear to have been introduced into Australia until 1911 when it was introduced in Western Australia. But optional preferential voting was used in Queensland after 1892 and proportional representation was introduced in Tasmania for the Hobart and Launceston metropolitan electorates in 1896. Since federation, compulsory preferential voting has become a widely used method for electing members of parliaments. The directions in s 240 of the Act are not so far removed from what was, and what is presently regarded as, involved in members being “chosen by the people” that that section is in breach of s 24 of the Constitution. Nor are those directions in conflict with the principles of representative government in so far as s 24 of the Constitution gives effect to that institution. Section 240 is a valid enactment. It follows that s 329A is also a valid enactment.
[Footnote omitted.]

63. In Australian Capital Television Pty Ltd v The Commonwealth, although in the context of freedom of political communication, Dawson J reasoned that choice required a “true choice”, which meant an appreciation of the “available alternatives”:[75]

Having said that, it must nevertheless be recognized that the Constitution provides for a Parliament the members of which are to be directly chosen by the people — in the case of the Senate by the people of the respective States and in the case of the House of Representatives by the people of the Commonwealth. Thus the Constitution provides for a choice and that must mean a true choice. It may be said — at all events in the context of an election — that a choice is not a true choice when it is made without an appreciation of the available alternatives or, at least, without an opportunity to gain an appreciation of the available alternatives. ...

This was supported by Heydon J in Mulholland v Australian Electoral Commission,[76] and Toohey J in McGinty v Western Australia.[77] It has also been expressed as a “genuine” choice.[78]

64. In a petition to the High Court challenging the validity of the compulsory preferential system of voting at the Commonwealth level, Hayne J sitting alone in Ditchburn v Divisional Returning Officer for Herbert dismissed the petition on the basis that “[t]he requirements that members be ‘directly chosen’ and that ‘each elector shall vote only once’ do not preclude the parliament from providing (as it has) for a compulsory preferential voting system.”[79]
65. Most recently, French CJ in Rowe v Electoral Commissioner adopted an approach which requires particular scrutiny of alterations to long-standing mechanisms which are adverse to the right to vote:[80]

While the term “directly chosen by the people” is to be viewed as a whole, the irreversibility of universal adult-citizen franchise directs attention to the concept of “the people”. Analogous considerations may apply to the term “chosen” and to the means by which the people choose their members of Parliament. Where a method of choice which is long established by law affords a range of opportunities for qualified persons to enrol and vote, a narrowing of that range of opportunities, purportedly in the interests of better effecting choice by the people, will be tested against that objective. This is not to suggest that particular legislative procedures for the acquisition and exercise of the entitlement to vote can become constitutionally entrenched with the passage of time. Rather, it requires legislators to attend to the mandate of “choice by the people” to which all electoral laws must respond. In particular it requires attention to that mandate where electoral laws effect change adverse to the exercise of the entitlement to vote. In this case it is the alteration of a long-standing mechanism, providing last-minute opportunities for enrolment before an election, that is in issue.

66. Hayne J in Rowe v Electoral Commissioner commented on failures to vote and reasoned that this did not affect the conclusion that a representative was “directly chosen by the people”, reasoning that there was no requirement for maximum participation in elections:[81]

The members of each House of the Parliament are elected on a franchise which, subject to exceptions that are not engaged in respect of the plaintiffs, is a universal adult franchise embracing all “the people of the Commonwealth” spoken of in s 24, and all “the people of the State” referred to in s 7. That some who are enrolled to vote, and therefore entitled and bound to vote, do not cast a ballot at an election does not deny that the elected members of each House of the Parliament are “directly chosen by the people”. That some who are bound to enrol do not enrol, and therefore do not vote, does not deny that the members of each House are “directly chosen by the people”. The plaintiffs’ argument was that the absence from the appropriate roll of some, who (belatedly) claimed their entitlement to be on that roll, does mean that the members of each House are not directly chosen by the people. Such a conclusion would be sharply at odds with the recognition that neither the failure to vote by some entitled to vote, nor the failure to claim enrolment by some entitled to enrol, leads to that conclusion.

67. Heydon J in Rowe v Electoral Commissioner noted:[82]

It was earlier noted that as many as 1.4 million people do not enrol at all, for a variety of reasons. It may be because of their inefficiency. It may be because of their apathy. It may be because they have a positive desire not to participate in the electoral process. One example is the appellant in Judd v McKeon, which upheld the validity of the provisions making voting compulsory: all the candidates supported capitalism and he belonged to a party which opposed it and prohibited him from voting for supporters of capitalism. Another example is Evelyn Waugh, who said: “I do not aspire to advise my sovereign in her choice of servants.” It is difficult to treat any of these circumstances as factors relevant to the invalidation on constitutional grounds of an electoral system which works satisfactorily in relation to those who are not inefficient, apathetic, or conscientiously indisposed to participate. If not, why are the much lower numbers excluded by reason of the impugned legislation relevant? Of those who are validly enrolled, some forget that the election is on and do not vote, some turn up too late to vote, some are prevented from voting by a sudden crisis, some are indifferent about voting, some cast informal votes by mistake, and some cast informal votes deliberately. It is notorious that these classes of enrolled non-voters are much more numerous than those excluded by reason of the impugned legislation. None of their members could be described as “disqualified”. Nor could those who fail to take steps under s 101 which would enable them to vote. It is they who disqualify, disenfranchise, exclude or disentitle themselves, not the legislature. The conduct of all these categories of people who fail to enrol, or, being enrolled, fail to vote, does not prevent the legislature being described as “chosen by the people”.
[Footnotes omitted.]

68. Section 245(1), as extrapolated above, provides that it is the duty of every elector to vote at each election. Arguably the duty for non-postal voters is discharged by: attendance at a polling booth; answering the prescribed questions; accepting a ballot paper; retiring to an unoccupied compartment and marking the ballot paper as required by  sections 239  and  240  of the  Commonwealth Electoral Act ; and depositing the ballot paper in the ballot box.
69. Having regard to  sections 233 ,  239  and  240  of the  Commonwealth Electoral Act , the Attorney-General of South Australia contended that “a failure to vote therefore involves failure to attend, accept the ballot paper and, having marked it, to put it in the ballot box”.[83] Barwick CJ, with whom McTiernan and Owen JJ agreed, was of the opinion that the progenitor to  section 245(15)  did not criminalise a failure to mark a ballot paper.[84] The practical reality is alluded to by Gummow and Bell JJ in Rowe v Electoral Commissioner where they note that “the secrecy which attends this system makes the description ‘compulsory attendance’ more appropriate than ‘compulsory voting’”.[85]
70. Whether or not the elements of this offence are made out by the failure to mark the ballot paper in a fashion prescribed by  sections 239  and 240 of the  Commonwealth Electoral Act  need not be resolved in this case. In the present proceeding it is to be recalled that the defendant did not attend any polling booth at all.
71. The Commonwealth electoral system, as described above, represents a system designed to support the election of the House of Representatives and of the Senate by the people of Australia. The  Commonwealth Electoral Act  has the purpose of ensuring representative democracy. The broad effect of the statute is to require all eligible persons to enrol as voters and then to require those electors to attend and vote. The terms of  sections 245(1)  and  245 (15) establish a duty to vote and a failure to vote attracts a criminal sanction. It is difficult to understand how the obligation to enrol and the obligation on an elector to vote could detract from a representative democracy in which the people of Australia choose who is to represent them in the House of Representatives and in the Senate. To my mind, the  Commonwealth Electoral Act  is legislation enacted within power. It provides a relevant system in contemporary times to ensure that Australia is a representative democracy.

Conclusion

72. I summarise my principal conclusions as follows:
    • − Sections 7 and 24 of the Commonwealth Constitution mandate a system of representative government with a particular characteristic, namely, ultimate control by the people exercised by representatives who are elected periodically.
    • −  Section 245(15)  of the Commonwealth Electoral Act is a law with respect to elections. It is supported by sections 10, 31 and 51(xxxvi) of the Commonwealth Constitution.
    • − The  Commonwealth Electoral Act  is legislation enacted within power. The legislation is relevantly limited and restricted by the Commonwealth Constitution.
    • − Whether or not the elements of an offence against  section 245(15)  of the  Commonwealth Electoral Act  are made out by the failure to mark the ballot paper in a fashion prescribed by  sections 239  and  240  of that Act need not be resolved in this case.
    • − For the purposes of  section 245(15)  of the  Commonwealth Electoral Act , the defendant was an elector who failed to vote at an election. Accordingly, pursuant to  section 245(15) , he is guilty of an offence.
    • − The Commonwealth Constitution does not vest a personal right in an elector to vote in a federal election

I would dismiss the appeal.

73. SULAN J: I agree that the appeal should be dismissed. I agree with the reasons of Gray J

[1] Criminal Code (Cth) section 6.1.

[2] Criminal Code (Cth) sections 13.3(2), 13.5.

[3] Australian Electoral Commission v Holmdahl [2012] AMC-11-5176 (Unreported, Mr JM Baldino SM, 3 February 2012) 1.

[4] Australian Electoral Commission v Holmdahl [ 2012] AMC-11-5176 (Unreported, Mr JM Baldino SM, 3 February 2012) 2-4.

[5] Holmdahl v Australian Electoral Commission [2012] SASC 76.

[6]  Section 81(1)  of the  Commonwealth Electoral Act 1918  (Cth) provides:

There shall be a Roll of the electors for each State and for each Territory.

[7] See  sections 82(4)  and  104 , and  Part IV  of the  Commonwealth Electoral Act 1918  (Cth).  Section 82  of the  Commonwealth Electoral Act  provides:

(1) There shall be a Roll for each Division.

(2) There shall be a separate Roll for each Subdivision.

(3) All the Subdivision Rolls for a Division shall together form the Roll for the Division.

(4) All the Division Rolls for a State or a Territory shall together form the Roll for that State or Territory, as the case requires.

[8]  Commonwealth Electoral Act 1918  (Cth)  section 83.   Section 83  provides:

(1) Subject to subsection (2) and  section 104 , the Rolls may be in the prescribed form, and shall set out the surname, Christian or given names and place of living of each elector and such further particulars as are prescribed.

(2) Where an elector is an eligible overseas elector or an itinerant elector, the Roll shall not set out the place of living of the elector.

[9] See  section 83(2)  of the  Commonwealth Electoral Act 1918  (Cth).  Section 94  of the Act provides for eligible overseas electors.  Section 96  provides for itinerant electors.  Section 104  allows an elector to request the Electoral Commissioner delete their address from the rolls.

[10]  Commonwealth Electoral Act 1918  (Cth)  section 101(1). 

[11]  Commonwealth Electoral Act 1918  (Cth)  section 101(4).   Section 101(4)  provides:

Subject to subsection (5A), every person who is entitled to have his or her name placed on the Roll for any Subdivision whether by way of enrolment or transfer of enrolment, and whose name is not on the Roll upon the expiration of 21 days from the date upon which the person became so entitled, or at any subsequent date while the person continues to be so entitled, shall be guilty of an offence unless he or she proves that the non-enrolment is not in consequence of his or her failure to send or deliver to the Electoral Commissioner, a claim, duly filled in and signed in accordance with the directions printed thereon.

Note: A defendant bears a legal burden in relation to the defence in subsection (4) (see section 13.4 of the Criminal Code).

[12]  Commonwealth Electoral Act 1918  (Cth)  sections 221(1) ,  221 (2).  Sections 221(1)  and  221 (2) are in the following terms:

(1) In the case of a Senate election, an elector shall only be admitted to vote for the election of Senators for the State or Territory for which he or she is enrolled.

(2) In the case of a House of Representatives election, an elector shall only be admitted to vote for the election of a member for the Division for which he or she is enrolled.

[13]  Commonwealth Electoral Act 1918  (Cth)  section 222(1).   Section 222(1)  provides:

On polling day an elector is entitled to vote at any polling place for the Division for which he or she is enrolled or to vote as an absent voter, on making a declaration in an approved form, at any other polling place within the State or Territory for which he or she is enrolled at which a polling booth is open.

[14]  Commonwealth Electoral Act 1918  (Cth)  sections 229(1)  and  229 (2).  Sections 229(1)  and  229 (2) provide:

(1) The presiding officer shall put the following questions to each person attending before the presiding officer and claiming to vote in an election or elections:

(a) What is your full name?

(b) Where do you live?

(c) Have you voted before in this election? or Have you voted before in these elections? (as the case requires).

(2) In addition to the questions put under subsection (1), the presiding officer shall ask each person claiming to vote as an absent voter in an election to identify the Division for which the person is enrolled

[15]  Commonwealth Electoral Act 1918  (Cth)  section 231.   Section 231  is in the following terms:

(1) The presiding officer or a polling official shall at the polling hand to each person claiming to vote a ballot paper duly initialled by the presiding officer:

(a) if the name under which the person claims to vote is on the certified list of voters or an approved list of voters for the polling place and the person’s answers to the prescribed questions show that he or she is entitled to vote; or

(b) if the person claims to vote under the provisions relating to absent voting and complies with those provisions.

(2) The presiding officer, at the request of a scrutineer, shall note any objection by the scrutineer to the right of any person to vote, and shall keep a record thereof.

[16]  Commonwealth Electoral Act 1918  (Cth)  section 229(2). 

[17] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520.

[18] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, 557.

[19] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, 557.

[20] Rowe v Electoral Commissioner [2010] HCA 46; (2010) 243 CLR 1, [1]-[2].

[21] Rowe v Electoral Commissioner [2010] HCA 46; (2010) 243 CLR 1, [325], [328].

[22] Langer v The Commonwealth [1996] HCA 43; (1996) 186 CLR 302, 343 (McHugh J), 349 (Gummow J); Rowe v Electoral Commissioner [2010] HCA 46; (2007) 243 CLR 1, [1] (French CJ).

[23] Re Pearson; Ex parte Sipka [1983] HCA 6; (1983) 152 CLR 254, 279 (Brennan, Deane and Dawson JJ).

[24] Re Pearson; Ex parte Sipka [1983] HCA 6; (1983) 152 CLR 254, 280 (Brennan, Deane and Dawson JJ); Roach v Electoral Commissioner (2007) 233 CLR 162, [70] (Gummow, Kirby and Crennan JJ).

[25] Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181, [14] (Gleeson CJ).

[26] Langer v The Commonwealth [1996] HCA 43; (1995) 186 CLR 302, 341.

[27] Langer v The Commonwealth [1996] HCA 43; (1995) 186 CLR 302, 342-343; see also, Langer v The Commonwealth [1996] HCA 43; (1995) 186 CLR 302, 349 (Gummow J).

[28] Rowe v Electoral Commissioner [2010] HCA 46; (2010) 243 CLR 1.

[29] Rowe v Electoral Commissioner [2010] HCA 46; (2010) 243 CLR 1, [408]-[410].

[30] McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140, 279 (Gummow J); Rowe v Electoral Commissioner [2010] HCA 46; (2007) 243 CLR 1, [199] (Hayne J).

[31] McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140, 220 (Gaudron J).

[32] Ex rel McKinlay v The Commonwealth [1975] HCA 53; (1975) 135 CLR 1.

[33] McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140.

[34] Langer v The Commonwealth [1996] HCA 43; (1996) 186 CLR 302.

[35] Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181.

[36] Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181, [155]-[156].

[37] McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140, 285.

[38] McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140, 184 (Dawson J), 220 (Gaudron J), 284 (Gummow J); Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181, [6] (Gleeson CJ), [64] (McHugh J), [154] Gummow and Hayne JJ); Rowe v Electoral Commissioner [2010] HCA 46; (2010) 243 CLR 1, [125] (Gummow and Bell JJ), [198]-[200] (Hayne J), [325] (Crennan J), [386] (Kiefel J).

[39] Rowe v Electoral Commissioner [2010] HCA 46; (2010) 243 CLR 1, [7]-[8].

[40] Roach v Electoral Commissioner (2007) 233 CLR 162, [49] (Gummow, Kirby and Crennan JJ), [110], [155] (Hayne J).

[41] Rowe v Electoral Commissioner [2010] HCA 46; (2007) 243 CLR 1, [126] (Gummow and Bell JJ); Kean v Kerby [1920] HCA 35; (1920) 27 CLR 449, 459 (Isaacs J).

[42] Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181, [66] (McHugh J), [140], [159] (Gummow and Hayne JJ).

[43] Rowe v Electoral Commissioner [2010] HCA 46; (2007) 243 CLR 1, [2] (French CJ), [160]-[161] (Gummow and Bell JJ).

[44] Rowe v Electoral Commissioner [2010] HCA 46; (2007) 243 CLR 1, [2], [25] (French CJ), [160]-[161] (Gummow and Bell JJ) [376], [384] (Crennan J); Roach v Electoral Commissioner (2007) 233 CLR 162, [24] (Gleeson CJ), [85] (Gummow, Kirby and Crennan JJ).

[45] A-G (Cth); Ex Rel McKinlay v The Commonwealth [1975] HCA 53; (1975) 135 CLR 1; Roach v Electoral Commissioner (2007) 233 CLR 162; Rowe v Electoral Commissioner [2010] HCA 46; (2007) 243 CLR 1.

[46] Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181, [66] (McHugh J) and the authorities cited therein.

[47] Muldowney v South Australia [1996] HCA 52; (1996) 186 CLR 352, 378 (Gaudron J); Rowe v Electoral Commissioner [2010] HCA 46; (2010) 243 CLR 1, [129] (Gummow and Bell JJ).

[48] See Lubcke v Little [1970] VicRp 99; [1970] VR 807, 810 where Crockett J considered the progenitor to  section 245(15B) , namely section 128A(12)(a) of the Electoral Act 1918 – 1966 (Cth).

[49] See the note to  section 245(15B)  of the  Commonwealth Electoral Act  which, pursuant to the recently enacted section 13 of the Acts Interpretation Act 1901 (Cth), is taken to be part of the Act.

[50] See, Faderson v Bridger [1971] HCA 46; (1971) 126 CLR 271; Judd v McKeon [1926] HCA 33; (1926) 38 CLR 380.

[51] Judd v McKeon [1926] HCA 33; (1926) 38 CLR 380.

[52] Faderson v Bridger [1971] HCA 46; (1971) 126 CLR 271.

[53] Faderson v Bridger [1971] HCA 46; (1971) 126 CLR 271, 272.

[54] Evans v Crichton-Browne [1981] HCA 14; (1980) 147 CLR 169, 207-208.

[55] Douglass v Ninnes (1976) 14 SASR 377, 379.

[56] Judd v McKeon [1926] HCA 33; (1926) 38 CLR 380, 383.

[57] Judd v McKeon [1926] HCA 33; (1926) 38 CLR 380, 385.

[58] Faderson v Bridger [1971] HCA 46; (1971) 126 CLR 271.

[59] Faderson v Bridger [1971] HCA 46; (1971) 126 CLR 271, 272-273.

[60] Judd v McKeon [1926] HCA 33; (1926) 38 CLR 380.

[61] Faderson v Bridger [1971] HCA 46; (1971) 126 CLR 271.

[62] Langer v The Commonwealth [1996] HCA 43; (1996) 186 CLR 302.

[63] Langer v The Commonwealth [1996] HCA 43; (1996) 186 CLR 302, 316.

[64] Langer v The Commonwealth [1996] HCA 43; (1996) 186 CLR 302, 317.

[65] Langer v The Commonwealth [1996] HCA 43; (1996) 186 CLR 302.

[66] Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181.

[67] Langer v The Commonwealth [1996] HCA 43; (1996) 186 CLR 302, 323-324.

[68] Langer v The Commonwealth [1996] HCA 43; (1996) 186 CLR 302, 332-333.

[69] Langer v The Commonwealth [1996] HCA 43; (1996) 186 CLR 302.

[70] Judd v McKeon [1926] HCA 33; (1926) 38 CLR 380.

[71] Faderson v Bridger [1971] HCA 46; (1971) 126 CLR 271.

[72] Langer v The Commonwealth [1996] HCA 43; (1996) 186 CLR 302, 341.

[73] Langer v The Commonwealth [1996] HCA 43; (1996) 186 CLR 302, 349.

[74] Langer v The Commonwealth [1996] HCA 43; (1996) 186 CLR 302, 343.

[75] Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106, 186-187.

[76] Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181.

[77] McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140.

[78] See Langer v The Commonwealth [1996] HCA 43; (1996) 186 CLR 302, 324 (Dawson J); Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106, 187 (Dawson J).

[79] Ditchburn v Divisional Returning Officer for Herbert [1999] HCA 41; (1999) 165 ALR 151, 154.

[80] Rowe v Electoral Commissioner [2010] HCA 46; (2010) 243 CLR 1, [22].

[81] Rowe v Electoral Commissioner [2010] HCA 46; (2010) 243 CLR 1, [213].

[82] Rowe v Electoral Commissioner [2010] HCA 46; (2010) 243 CLR 1, [288].

[83] Faderson v Bridger [1971] HCA 46; (1971) 126 CLR 271, 272 (Barwick CJ).

[84] Faderson v Bridger [1971] HCA 46; (1971) 126 CLR 271, 272; see also Langer v The Commonwealth [1996] HCA 43; (1996) 186 CLR 302, 327-328 (Toohey and Gaudron JJ), cf 337 (McHugh J).

[85] Rowe v Electoral Commissioner [2010] HCA 46; (2007) 243 CLR 1, [82].