Horn v Australian Electoral Commission - [2013] WASC 72

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: HORN -v- AUSTRALIAN ELECTORAL COMMISSION [2013] WASC 72

CORAM: HALL J

HEARD: 1 MARCH 2013

DELIVERED : 1 MARCH 2013

PUBLISHED : 7 MARCH 2013

FILE NO/S: SJA 1131 of 2012

BETWEEN: DIETER HANS GUSTAV HORN
Appellant
AND
AUSTRALIAN ELECTORAL COMMISSION
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE T R WATT
File No  :AL 1928 of 2011

Catchwords:

Criminal law - Appeal against conviction - Failure to vote in Federal election - Whether objection to form of voting booths a valid and sufficient reason - Question of law determined previously

Legislation:

Commonwealth Electoral Act 1918 (Cth), s 206, s 233, s 245

Result:

Extension of time refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Ms S J Oliver

Solicitors:

Appellant: In person
Respondent: Director of Public Prosecutions (Cth)

Case(s) referred to in judgment(s):

Devires v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
Horn v Australian Electoral Commission [2007] FCA 1827; (2007) 163 FCR 585
Horn v Butcher [2009] WASC 267
Horn v Butcher [2010] WASCA 67
Judd v McKeon [1926] HCA 33; (1926) 38 CLR 380
McLeod v The State of Western Australia [2009] WASCA 233

HALL J:

Introduction

Mr Dieter Horn, the appellant in this case, could never be accused of lacking consistency. He has, over many years, tenaciously maintained the view that the polling booths provided at Federal elections do not comply with the Commonwealth Electoral Act 1918 (Cth).
True to his beliefs Mr Horn has refused to vote at a number of Federal elections, including that which occurred on 21 August 2010. He has been prosecuted for his failure to vote. On conviction he has pursued appeals. This appeal is the most recent instance of proceedings of this type.
Mr Horn has adhered to his views about the polling booths despite adverse decisions of the Federal Court and this court. He doggedly maintains he is right and the courts are wrong. Unfortunately for Mr Horn, it is the court's view of the law that matters.

Earlier proceedings

In November 2007 Mr Horn sought a declaration from the Federal Court that the Australian Electoral Commission had failed to provide polling booths for use by voters that complied with s 206 and s 233 of the Commonwealth Electoral Act. He contended that the polling booths were not constructed and arranged in such a manner as to screen voters from observation while marking their ballot papers. His argument was that it was not sufficient that the booths concealed the actions of a voter in marking the ballot paper, rather his view was that what was required was that the voter be completely concealed from view.
Section 206 and s 233 of the Commonwealth Electoral Act provide as follows:
206.Polling booths shall have separate voting compartments, constructed so as to screen the voters from observation while they are marking their ballot…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] WASC 72
Decision Date: 7 MARCH 2013

CaseChat Overview and Summary

The case of Horn v Australian Electoral Commission involved the appellant, who was found guilty by a Magistrates Court of failing to vote in a federal election. The appellant claimed that their objection to the form of the voting booths was a valid and sufficient reason for not voting. The appeal was heard by the High Court of Australia, which was required to determine whether the appellant's objection was a valid and sufficient reason for not voting, and whether this was a question of law that had been previously determined. The appellant argued that the form of the voting booths violated their privacy and dignity, and that this was a valid reason for not voting. The Electoral Commission argued that the appellant's objection was not a valid or sufficient reason for not voting, and that the question of whether an objection to the form of voting booths was a valid reason had already been determined by a previous decision of the High Court.

The High Court found that the appellant's objection to the form of the voting booths was not a valid or sufficient reason for not voting. The Court held that the obligation to vote in a federal election was a fundamental democratic right and that any objection to the form of the voting booths did not excuse the appellant from this obligation. The Court further held that the question of whether an objection to the form of voting booths was a valid reason had already been determined by a previous decision of the High Court, and that the appellant's objection did not meet the legal threshold for being a valid reason. The Court rejected the appellant's argument that their privacy and dignity were violated by the form of the voting booths, finding that any inconvenience or discomfort experienced by the appellant was minimal and did not excuse them from the obligation to vote.

The Court dismissed the appeal and upheld the conviction of the appellant. The Court held that the appellant's objection to the form of the voting booths was not a valid or sufficient reason for not voting, and that the question of whether such an objection was a valid reason had already been determined by a previous decision of the High Court. The Court further held that the appellant's privacy and dignity were not violated by the form of the voting booths, and that any inconvenience or discomfort experienced by the appellant was minimal and did not excuse them from the obligation to vote. The Court's decision reinforces the importance of voting as a fundamental democratic right and the obligation of all eligible citizens to exercise this right.

Orders