Holmdahl v Australian Electoral Commission (No 2)

The appeal concerned a conviction for failing to vote at a federal election contrary to section 245(15) of the *Commonwealth Electoral Act 1918* (Cth). The appellant, who was enrolled as an elector, did not attend a polling booth on the election date. The central dispute revolved around the constitutional validity of the compulsory voting provisions and whether the appellant's non-attendance constituted a failure to "vote" in a manner that contravened the Act. The matter was heard by the Full Court of the Supreme Court of South Australia.

The legal issues before the court were whether section 245(15) of the *Commonwealth Electoral Act* was a valid law enacted under the Commonwealth Constitution, specifically whether it detracted from the constitutional mandate that Members of Parliament be "directly chosen by the people" as stipulated in sections 7 and 24. Alternatively, the court considered whether, when read in light of this mandate, section 245(15) permitted an elector to "vote" by choosing not to attend a polling booth, and whether the provision was sufficiently specific to deem non-attendance a failure to vote. Finally, the court had to determine whether the respondent bore the onus of proving the appellant lacked a valid and sufficient reason for failing to vote.

The Full Court dismissed the appeal, holding that section 245(15) is a valid law with respect to elections, supported by constitutional provisions including sections 10, 31, and 51(xxxvi). The phrase "directly chosen by the people" was interpreted as requiring a popular vote but not dictating a specific electoral system, thus allowing for legislative freedom in the method of choosing representatives. The court found that compulsory voting did not detract from the constitutional mandate. It was held that a non-postal voter who fails to attend a polling booth without a valid and sufficient reason contravenes section 245(15), and that the appellant bore an evidential burden to establish such a reason.