Holmdahl v Australian Electoral Commission

[2012] SASC 76

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

HOLMDAHL v AUSTRALIAN ELECTORAL COMMISSION

[2012] SASC 76

Judgment of The Honourable Justice Gray

11 May 2012

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - FURTHER APPEAL TO FULL COURT

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

Appeal by the defendant against conviction - following a trial before a Magistrate, the defendant was convicted of an offence against section 245(15) of the Commonwealth Electoral Act 1918 (Cth) - where the defendant was enrolled as an elector on the Commonwealth Electoral Roll and did not vote at the election on 21 August 2010 - where the defendant did not pay the penalty for failing to vote - whether the conviction should be set aside - whether an order should be made referring the appeal for hearing and determination by the Full Court.

Held: 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).

Commonwealth Electoral Act 1918 (Cth) s 245(15); Magistrates Court Act 1991 (SA) s 42; Supreme Court Civil Rules 2006 (SA) r 280(2), referred to.

HOLMDAHL v AUSTRALIAN ELECTORAL COMMISSION
[2012] SASC 76

Magistrates Appeals

GRAY J.

1. The defendant and appellant, Nils Anders Holmdahl, was charged with an offence against section 245(15) of the Commonwealth Electoral Act 1918 (Cth).

2. The particulars alleged were as follows. On 21 August 2010, there was a general election and a Senate election for the State of South Australia. On that date, the defendant was enrolled as an elector on the Commonwealth Electoral Roll for the Division of Hindmarsh. The defendant failed to vote at the election and has not paid the penalty for failing to vote. 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.

3. On 7 December 2011, the defendant pleaded not guilty to the charged offence and the trial proceeded before a Magistrate.  An agreed statement of facts was tendered.  No oral evidence was led by either party.  Relevantly, the agreed facts included the following.  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 vote 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.  The defendant made a deliberate decision not to vote on 21 August 2010.

4. 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:

   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) 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.]

5. On 24 February 2012, the defendant appealed to this Court pursuant to section 42 of the Magistrates Court Act 1991 (SA). That section 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).

   …

6. 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.

7. The defendant seeks to agitate what are claimed to be issues of fundamental importance arising under the Commonwealth Constitution and the Commonwealth Electoral Act. I understand the thrust of the submission to be that section 245(15) of the Commonwealth Electoral Act is not a valid enactment of the Commonwealth Parliament as it erodes a constitutionally protected right to vote. It is claimed that the right to vote is a constitutionally protected right that may be exercised or not exercised and that the obligation to vote arising from section 245(15) infringes that right.

8. On 3 April 2012, I heard submissions from the parties on the appeal. At the conclusion of argument, I reserved judgment but indicated that I proposed to consider whether it would be appropriate to refer the appeal to the Full Court. I have now determined to do so. Accordingly, pursuant to section 42(2)(b) of the Magistrates Court Act, I make an order referring the appeal for hearing and determination by the Full Court.  The appeal should be heard promptly and to that end, I propose making the following orders:

   -That pursuant to section 42(2)(b) of the Magistrates Court Act and rule 280(2) of the Supreme Court Civil Rules, I refer this appeal for hearing and determination by the Full Court.

   -That the defendant prepare appeal books, the same to be filed and the appeal set down by no later than 4:00 pm on Friday 18 May 2012. 

   -That the defendant file and serve any further outline of argument by no later than Tuesday 22 May 2012. 

   -That the respondent file and serve any further outline of argument by no later than Friday 25 May 2012. 

   -That the several Attorneys-General be given notice of this referral to the Full Court and of these reasons. 

   -That the appeal, subject to any further direction of the Chief Justice, proceed to hearing in the June 2012 sittings of the Full Court. 

   -That the parties have liberty to apply for further directions.