Holmdahl v Australian Electoral Commission and Anor

[2013] HCATrans 72

[2013] HCATrans 072

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A34 of 2012

B e t w e e n -

NILS ANDERS HOLMDAHL

Applicant

and

AUSTRALIAN ELECTORAL COMMISSION

First Respondent

THE ATTORNEY‑GENERAL FOR THE STATE OF SOUTH AUSTRALIA

Second Respondent

Application for special leave to appeal

HAYNE J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 12 APRIL 2013, AT 9.29 AM

Copyright in the High Court of Australia

MR K.V. BORICK, QC:   If the Court pleases, I appear with MR P.D. KEYZER, for the applicant.  (instructed by Joseph Ramsay Sanders)

MR P.W. NEIL, SC:  May it please the Court, I appear with my learned friend, MR N.J. OWENS, for the first respondent.  (instructed by Commonwealth Director of Public Prosecutions)

MR M.G.HINTON, QC, Solicitor‑General for the State of South Australia:  May it please the Court, I appear with my learned friend, MR M.J. WAIT, for the second respondent.  (instructed by Crown Solicitor (SA))

HAYNE J:   Yes, Mr Borick.

MR BORICK: Your Honours, sections 245(1) and 15 of the Commonwealth Electoral Act refer to a duty to vote.  Our primary contention is that the vote is a right and not a duty and there is a fundamental distinction between a right and a duty.

HAYNE J:   Is that proposition of statutory construction, a proposition of a priori assumption?  What is it?

MR BORICK:   No a statutory construction, construction of the powers of the Commonwealth.   If I could take your Honours to the application book starting at page 31 and at the bottom of the page there is a reference to Rowe v Electoral Commissioner where the Chief Justice described sections 7 and 24 as “‘bedrock’ provisions”.  Then you turn the page, there is a reference to the judgment of Justice Crennan in that case and if I could take you to the last paragraph of the excerpt from her judgment which reads:

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 [and I underline now] that the words of ss 7 and 24 have come to be a constitutional protection of the right to vote.

In the following paragraph, Justice Grey, who wrote the judgment of the court below, referred to the fact that, in his view:

The Commonwealth Constitution does not vest a personal right in the defendant or any elector to vote in a federal election.

HAYNE J:   I think you can take it that we are familiar with the judgment ‑ ‑ ‑

MR BORICK:   Thank you.

HAYNE J:   ‑ ‑ ‑ of the Full Court.

MR BORICK: I just wanted to make a point, though, that the court below held that the only provision of the Commonwealth Constitution that refers to a right to vote, is section 41. That seems, with respect, to be inconsistent with the proposition that the words of sections 7 and 24 have come to be a constitutional protection of the right to vote. At page 34 there is a reference to the judgment of:

Kiefel J in Rowe v Electoral Commissioner –

At point 20, I refer to the paragraph that starts:

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.

I underline the words “who do vote”.

HAYNE J:   For you to succeed in any appeal to this Court would it be necessary for your side to have the Court overrule Judd v McKeon decided in 1926?

MR BORICK:   No, your Honour.

HAYNE J:   Why not?

MR BORICK:   Because neither Judd v McKeon nor the other case that followed did not deal with the specific issue of whether there was a right or a duty.  They were dealing with a question of whether the excuse provided, for example by Judd, was a satisfactory excuse, but they had never considered the question which is now before this Court.  Those cases were decided, obviously, well before Rowe and Roach where this Court ‑ ‑ ‑

HAYNE J:   Maybe, my question is in order to succeed why would the applicant not have to have this Court reopen and overrule Judd v McKeon?

MR BORICK:   I will answer in the alternative.  No you do not have to be because this point was not decided in that case, but in the alternative the Court should reopen it and reconsider the issue because of what has happened in the subsequent cases where it has been made clear that it is not a duty but a right.  So either way, we would say that this Court should give special leave to appeal.

GAGELER J:   Why is there an inconsistency between the existence of a right and the existence of a duty to exercise that right?

MR BORICK:   Because a right involves a choice and you can waive that right; with a duty you cannot waive the duty.  So there is a fundamental distinction, in our submission to this Court, between a right and a duty.  When sections 245 impose a criminal sanction for failure to obey a duty, it is our submission to this Court and it will be our submission if we get leave, that there was no such duty. 

HAYNE J: Section 245(1) provides:

It shall be the duty of every elector to vote ‑ ‑ ‑

MR BORICK:   I appreciate that and our proposition is that there is no such duty it is a right.

KEANE J:   You say that provision is unconstitutional?

MR BORICK:   Yes, or invalid.

KEANE J:   Well, invalid ‑ ‑ ‑

MR BORICK:   Invalid yes, because there is no such duty.

KEANE J:   In making that submission it seems to me you have got to say that Judd v McKeon is wrong?

MR BORICK:   Well, if I have to say it, I will say it and invite this Court to find that it was wrong, but I respectfully submit I do not have to on the basis that that court never considered the distinction which we now make between a right and a duty.  It was never in their minds.  My alternative submission is yes, should go back and reconsider it for the same reason.

Just following on from my reference to the passage I read from Justice Kiefel, “chosen by the people” refers to the election of a representative by all those qualified to vote who do vote.  In other words, the words “chosen by the people” are not diminished by the fact some people choose not to vote by whatever means those people choose not to vote.  In support of our primary argument that it is a right not a vote, in my submission, we get considerable support from the argument advanced by the second respondent.  Could I take your Honours to pages 70 and 71, particularly page 71?  The second respondent argues in the middle of paragraph 15 – this is on page 71:

It is reasonable for the Commonwealth Parliament to have made an assessment that it is important in order to facilitate an election to require each elector to attend a polling place.

Well, in a sense, that is correct.  If you want to cast a valid vote you are required to go to a polling booth, get the paper and do all the other things.  Once you get into the polling booth, of course, you cannot commit an offence because it is quite secret.  The suggestion being made there is that there is some sort of mandate that you must go to a polling booth.  If you go a little bit further down ‑ ‑ ‑

HAYNE J:   Those refinements of argument about nature and extent of duty would not arise in this case where the applicant did not attend a voting place.

MR BORICK:   That is right that is the agreed fact, he did not attend and it was quite a deliberate choice.  Just going a little bit further down paragraph 15, you see:

the elector has not determined not to choose between candidates for any reason other than the making of a deliberate choice not to exercise his or her right to vote.

So they refer to it as a right and you go to paragraph 16 of their argument and you see:

Finally, s245 of the CEA does not infringe any constitutional guarantees.  Even if it is assumed that the Applicant has a right –

That is the first words, an assumption, there, but again the word “right” appears -

not to choose between candidates, then on the interpretation of s245 urged by the Applicant, s245 of the CEA does not infringe or detract from that right.  

You see the word “right” appears again -

Section 245 might be an irritant to the Applicant, who would rather not be put to the inconvenience of attending and casting an invalid vote.  However, it does not derogate from that right.

They are clearly putting to the court in those paragraphs that it is a right and I draw particular attention “does not derogate from that right” the idea that you are supposed to attend a polling booth.

GAGELER J:   Mr Borick, do you have a copy of the first and second respondents’ authorities?

MR BORICK:   Yes.

GAGELER J:   You will see that the first of the authorities there is Judd v McKeon.

MR BORICK:   Yes.

GAGELER J:   I just wanted to draw your attention to one passage at the top of page 385

MR BORICK:   Sorry, I thought I had it here.

GAGELER J:   You do not have it?

MR BORICK:   Sorry, it is in my bag.

KEANE J:   It is 38 CLR.

MR BORICK:   No.

GAGELER J:   You do not have Judd v McKeon?

MR BORICK:   Sorry, do you want to put it to me then?

GAGELER J:   No do not let me detain you.

MR BORICK:   I was making the point that on all those occasions in paragraphs 15 and 16, that the expression “right” is used.  In practical terms - you cannot commit an offence and you see that in the website put up by the first respondent, the Commonwealth Electoral Commission that you cannot be compelled to vote, and that is a fact.  You go into a polling booth.  You can do what you like with the paper; put it in the bin, you can screw it up, you can put any sort of mark on it, but you cannot be convicted of any offence.

Nowhere, in any of the legislation, does it say you have to attend a polling booth.  There have been various attempts to define “vote” and they generally run along the lines that it means going to a polling booth, signing on, getting your paper, going to a booth in private, marking your paper and then putting it in and that is the whole process, but I repeat that nowhere does it say that a vote is defined as attending the polling booth.  “Vote” is just not defined anywhere and how is it possible to commit an offence against what is a right by not going to a polling booth, rather than by going into the booth and tearing the paper up.

We draw attention to the fact that the concept of right means that there must be a true or a genuine choice.  A true choice is consistent with the concept of a right but not consistent with a concept of a duty to because – and the duty you have got to do something, you do not have right to choose.  Next, there is a distinction between choice and method of choice.  In one sense if there is anything mandatory about the voting system it is that if you want to register a formal vote you must do it in the method dictated, otherwise your vote never gets counted.  In that sense it is mandatory, but that does not alter the fact that a right means a choice it means that you have a choice, rather.

It is also significant that if you look at section 24 of the Constitution the word “shall” does not appear before the words “chosen by the people”. The word “shall” appears in the Constitution in the order of 250 times and about over 100 of those are in the chapter dealing with the Parliament and so the framers of the Constitution knew full well what the word “shall” meant and, in our submission, the admission of the word “shall” before the words “chosen by the people” is significant. It follows from that that our submission is that duty and right, in this situation, cannot coexist.

Now, I want to take your Honours to page 46 of the application book.  This is paragraph 71, in effect, the last paragraph of the judgment of the court below before the conclusions are summarised.  In the middle of paragraph 71 the court found that:

The terms of section 245(1) and 245(15) establish a duty to vote and a failure to vote attracts a criminal sanction.

I draw attention to the words “failure to vote attracts a criminal sanction”. They are talking about sections 245(1) and 245(15), if you were charging a criminal offence, whether a trial by judge or by jury, you would have to define the elements as in any other criminal case. Then if you turn the page to page 47 and it is the fourth conclusion on that page the court said:

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.

In our respectful submission, there is a contradiction between what is said in paragraph 71 where the court says that the sections clearly “establish . . . a criminal sanction”, “a duty to vote” and yet in the windup they say, “We don’t have to decide what the elements are”.

Now, if they did, they would have had to deal with the question of whether or not it was a right.  For example, if this was a normal sort of criminal charge, you had a judge sitting there would be an immediate application when the charge was laid for a hearing on the issue of whether they can make out a case because the word “duty”…..appear.  It is a right and the Court would have to consider that attack on the indictment because it goes to an element of the charge.  You cannot just avoid that by saying we do not have to consider the elements of the charge in this case.  This Court could, for example, say well, “We’ll send it back to them and let them decide that issue”.  Our position on that is there is no need because it would come back here, in any event.  On the question of whether it is a duty or a right which is the fundamental issue that we suggest could involve the grant of a special leave.

We also ask the Court to note that when the matter came before Justice Grey on appeal from the Magistrates Court, he, Justice Gray, decided to refer it to the Full Court and he did so because it involved questions of difficulty and importance.  So we did not have to go to the Full Court, his Honour sent it there because of difficulty and importance of the matters raised and for the reasons which I have advanced, we say this matter does raise issues of public importance.  The case is a good vehicle for the reconsideration of compulsory voting.  The case raises arguments relating to the constitutionality of compulsory voting that have not previously been raised and warrant serious consideration.  For those reasons, special leave to appeal should be granted.

HAYNE J:   Thank you, Mr Borick.  We need not trouble you, Mr Neil or Mr Hinton. 

An appeal to this Court would enjoy no prospect of success.  Special leave to appeal is refused. 

The Court will adjourn to reconstitute.

AT 9.50 AM THE MATTER WAS CONCLUDED