Do you know that there is a fine for not voting in Referendum 14 October 2023?
With the referendum only a few days away, there are many people who have not yet decided whether their inherent distrust of politicians outweighs their inherent distrust of sensationalist media.
So what is the consequence if you cannot, or don’t vote?
Voting is compulsory in Australia in both federal elections and referendums (though under different legislation). In the case of the referendum it is under sec 45 of the Referendum (Machinery Provisions) Act 1984 which is in similar terms to the Electoral Act 1918,
The section is set out below, but essentially if you don’t vote it is an offence. You are likely to get a penalty notice which entitles you to pay a penalty of $20 to deal with the offence at first instance if you cannot satisfy the notice in another way. If you don’t, then the prosecution could result in a far higher exposure – about $313 plus costs. There are also similar potential exposures for submitting false or misleading information to attempt to explain the failure to vote.
Sec 45 of the Referendum (Machinery Provisions) Act 1984
(1) It is the duty of every elector to vote at a referendum.
(2) The Electoral Commissioner must, after the voting day at a referendum, being a referendum the voting day for which was not the same as that fixed for the polling at a Senate election or a general election of members of the House of Representatives, prepare for each Division a list of the names and addresses of the electors who appear to have failed to vote at the referendum.
(3) Subject to subsection (4), within the period of 3 months after the voting day at a referendum, each DRO must:
(a) send a penalty notice by post; or
(b) arrange for a penalty notice to be delivered by other means;
to the latest known address of each elector whose name appears on the list prepared under subsection (2).
(4) The DRO is not required to send or deliver a penalty notice if he or she is satisfied that the elector:
(a) is dead; or
(b) was absent from Australia on the voting day for the referendum; or
(c) was ineligible to vote at the referendum; or
(d) had a valid and sufficient reason for failing to vote.
(5) A penalty notice is a notice in an approved form notifying the elector that:
(a) the elector appears to have failed to vote at the referendum; and
(b) it is an offence to fail to vote at a referendum without a valid and sufficient reason for the failure; and
(c) if the elector does not wish to have the apparent failure to vote dealt with by a court, the elector may, within the prescribed time:
(i) if the elector did vote as required by this Act—give the DRO particulars of the circumstances of the elector’s voting; or
(ii) if the elector failed to vote—give the DRO a valid and sufficient reason for the failure; or
(iii) pay to the DRO a penalty of $20.
(6) If an elector does not respond to a penalty notice in the manner indicated in subparagraph (5)(c)(i), (ii) or (iii), within the prescribed time, the DRO must send by post or deliver to the elector, at his or her latest known address, a second penalty notice, having, subject to subsection (7), the same form as the first such notice but bearing a notation to the effect that a previous notice in the same terms was sent to the elector but that a response in the manner indicated in subparagraph (5)(c)(i), (ii) or (iii) was not received.
(7) The provisions of this section, other than subsection (6), apply in relation to a second penalty notice:
(a) as if it were a penalty notice issued under subsection (3); and
(b) as if, in the provisions of this section as so applied, references to paragraphs and subparagraphs of subsection (5) included references to those paragraphs and subparagraphs as applied by this section.
(8) If, within the prescribed time:
(a) an elector responds to a penalty notice in the manner indicated in subparagraph (5)(c)(i) or (ii) and the DRO to whom the response has been given is satisfied:
(i) in the case of a response of the kind referred to in subparagraph (5)(c)(i)—that the elector did vote as required by this Act; or
(ii) in the case of a response of the kind referred to in subparagraph (5)(c)(ii)—that the reason for the failure to vote is a valid and sufficient reason; or
(b) an elector responds to a penalty notice by paying the penalty of $20;
proceedings against the elector for a contravention of subsection (14) are prohibited.
(9) If the DRO to whom a response to a penalty notice has been given under subparagraph (5)(c)(i) or (ii) within the prescribed time is not satisfied:
(a) in the case of a response of the kind referred to in subparagraph (5)(c)(i)—that the elector voted as required by this Act; or
(b) in the case of a response of the kind referred to in subparagraph (5)(c)(ii)—that the reason for the failure to vote is a valid and sufficient reason;
the DRO must send by post or deliver to the elector, at his or her latest known address, a notice in an approved form, notifying the elector that:
(c) the DRO is not so satisfied; and
(d) if the elector does not wish to have the apparent failure to vote without a valid and sufficient reason for such failure dealt with by a court, he or she may, within the prescribed time, pay to the DRO a penalty of $20.
(10) If, in response to a notice under subsection (9), the penalty of $20 is paid to the DRO within the prescribed time, proceedings against the elector for a contravention of subsection (14) are prohibited.
(11) If an elector is unable, by reason of absence from his or her place of living or physical incapacity, to respond to a penalty notice or to a notice under subsection (9) within the prescribed time, any other elector who has a personal knowledge of the facts may, subject to the regulations, respond to the notice within that time, and such response is to be treated as compliance by the first‑mentioned elector with the notice.
(12) The DRO must prepare a list of all electors to whom a penalty notice has been sent or delivered and note on that list in relation to each elector:
(a) whether there has been a response to the notice; and
(b) if there has been a response:
(i) whether the DRO is satisfied that the elector did in fact vote or that there was a valid and sufficient reason for the elector’s failure to vote; or
(ii) whether the penalty has been paid.
(13) The DRO must note on the list prepared under subsection (12) in relation to each elector to whom a notice under subsection (9) has been sent or delivered:
(a) the fact that a notice has been sent or delivered under subsection (9); and
(b) whether there has been a response to the notice; and
(c) if there has been a response—whether the penalty has been paid.
(13A) Without limiting the circumstances that may constitute a valid and sufficient reason for not voting, the fact that an elector believes it to be part of his or her religious duty to abstain from voting constitutes a valid and sufficient reason for the failure of the elector to vote.
(14) An elector commits an offence if the elector fails to vote at a referendum.
Penalty: 1 penalty unit.
(14A) Strict liability applies to an offence against subsection (14).
Note: For strict liability, see section 6.1 of the Criminal Code.
(14B) Subsection (14) 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 (14B) (see subsection 13.3(3) of the Criminal Code).
(14C) An elector who makes a statement in response to a penalty notice or to a notice under subsection (9) that is, to his or her knowledge, false or misleading in a material particular commits an offence.
Penalty: 1 penalty unit.
(15) Proceedings for an offence against this section may be instituted only by the Electoral Commissioner or an officer authorised, in writing, for the purpose by the Electoral Commissioner.
(16) In this section, elector does not include:
(a) an Antarctic elector; or
(b) an eligible overseas elector; or
(c) an itinerant elector.
(17) In this section, a reference to the prescribed time for a response to a penalty notice or a notice under subsection (9) is a reference to the time for response specified in the notice.
