Faderson v Bridger

[1971] HCA 46

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan and Owen JJ.

FADERSON v. BRIDGER

(1971) 126 CLR 271

11 October 1971

Parliamentary Elections (Cth)

Parliamentary Elections (Cth)—Compulsory voting—Election for Senate—Preferential voting—Failure to vote—No preference held as between candidates—Whether "a valid and sufficient reason" for failure to vote—Commonwealth Electora Act 1918-1966, ss. 123, 128A (12)*.

Decisions

October 11.
The following judgments were deliverd:-
BARWICK C.J. The appellant was convicted by a magistrate for an offence under s. 128A (12) of the Commonwealth Electoral Act 1918-1966 in that he failed to vote at an election without a valid and sufficient reason for such failure. (at p272)

2. The appellant gave evidence before the magistrate to the effect that he could not do as the ballot paper would have required him to do, it being a Senate election involving the expression of preferences. He could not do this he said because he had no preference, and that if he had been forced to state his preference he would have been telling a lie. (at p272)

3. The appellant did not attend at any electoral booth and obtain a ballot paper. (at p272)

4. The magistrate found that the appellant did not vote and that his reason for not voting was that he did not have any preference amongst the candidates. (at p272)

5. Mr. Forsyth has assisted us very considerably and has put before us an argument to the effect that the inability of the voter if accepted as a fact to form any preference amongst the candidates is a valid and sufficient reason for failing to vote. Consequently the conviction ought to be set aside. (at p272)

6. We have not found it necessary to ask counsel for the respondent to assist us, as I formed the conclusion, and so I understand have my brother Justices, that there is no substance in the arguments which have been put before us, although put before us very clearly and expertly. (at p272)

7. 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. (at p272)

8. Section 123 in relation to a Senate election requires the voter to "place the number 1 in the square opposite the name of the candidate for whom he votes as his first preference", all the remaining squares to be marked with successive numbers as the voter determines as contingent votes. (at p272)

9. 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…