R v Wayne Alfred Carr

[2017] NSWLC 21

Local Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Wayne Alfred CARR [2017] NSWLC 21

Hearing dates:

3 October 2017; 7 December 2017

Date of orders:

22 December 2017

Decision date:

22 December 2017

Jurisdiction:

Criminal

Before:

Magistrate B Shields

Decision:

See [70].

Catchwords:

CRIMINAL LAW – Particular offences - Failure to vote – valid and sufficient reason – religious duty – conscientious objection

Legislation Cited:

Commonwealth Electoral Act 1918 (Cth) ss 245(14), 245(15), 245(15B), 388
Criminal Code Act (Cth) 1995 ss 13.1, 13.3
Electoral and Referendum Amendment Act 1989 (Cth)
Electoral and Referendum Amendment Act 1991 (Cth)

Cases Cited:

Adelaide Co of Jehovah's Witnesses Inc v Commonwealth (1943) 67 CLR 116
BHP Billiton Iron Ore Pty Ltd v The National Competition Council (2007) 162 FCR 234; [2007] FCAFC 157
Blakeney v Coates (Unreported, WASC, Full court 22 September 1982)
Church of the New Faith v Commissioner for Pay-Roll Tax (Vic) (1983) 154 CLR 120; [1983] HCA 40
Douglas v Ninnes (1976) SASR 377
Horn v Butcher [2010] WASCA 67
Judd v McKeon (1926) 38 CLR 380
Krosch v Springell; Ex parte Krosch [1974] Qd R 107
La Macchia v Minister for Primary Industries & Energy (1992) 110 ALR 201
R v Adam Easton [2017] NSWLC 19
R v Khazal (2012) 246 CLR 601; [2012] HCA 26
Rawson Finances Pty Ltd v Deputy Cmr of Taxation (2010) 189 FCR 189; 268 ALR 362
Undershaft (No 1) Ltd v Cmr of Taxation (2009) 175 FCR 150; 253 ALR 280
Valentine v EID (1992) 27 NSWLR 615
Whittaker v Delmina Pty Ltd (1998) 87 IR 268 SC (VIC)

Category:

Principal judgment

Parties:

Australian Electoral Commission (prosecution)

  Wayne Alfred Carr (defendant)

Representation:

Counsel:

 

Ms C Egan (federal prosecutor)

 

Mr M Fernandez (for the defendant)

   

Solicitors:

 

Commonwealth Director of Public Prosecutions

  Mr A Gander of Lander & Rogers (for the defendant)

File Number(s):

2017/164433

Publication restriction:

Nil

Judgment

1. Wayne Alfred Carr is before the Court charged with an offence against s 245(15) of the Commonwealth Electoral Act 1918 (Cth) (‘the Act’).

2. It is common ground that Mr Carr did not vote in the Federal election held on 2 July 2016.

3. Section 245 of the Act is, relevantly, in the following terms:

245 Compulsory voting

(1) It shall be the duty of every elector to vote at each election.

….

(14) Without limiting the circumstances that may constitute a valid and sufficient reason for not voting, the fact that an elector believes it to be part of his or her religious duty to abstain from voting constitutes a valid and sufficient reason for the failure of the elector to vote.

(15) An elector commits an offence if the elector fails to vote at an election.

Penalty: 1 penalty unit.

(15A) Strict liability applies to an offence against subsection (15).

(15B) Subsection (15) does not apply if the elector has a valid and sufficient reason for the failure.

Issues

4. Mr Carr was served with a Court Attendance Notice (‘the CAN’) issued on 21 April 2017. The CAN contains 1 sequence for an offence against s 245(15) of the Act supported by 12 averments, which, by s 388 of the Act, are deemed to be proved in absence of evidence to the contrary.

5. Mr Carr has led no evidence to traverse any of the averments; and the elements of the offence are in not issue.

6. Mr Carr’s case in defence of the prosecution is that he had a valid and sufficient reason not to vote, put in two ways:

1. Mr Carr subjectively believed that he had a religious duty not to vote within the meaning of s 245(14); and

2. Mr Carr’s political conscience was a valid and sufficient reason not to vote for the purposes of s 245(15B).

7. The latter defence is put on the basis that Mr Carr’s genuinely held reason of conscience, whether described as religious, moral or political, was a valid and sufficient reason for having failed to vote.

Burdens of Proof

8. The key evidentiary provisions in the Criminal Code Act1995 (Cth) are as follows:

13.1 Legal burden of proof—prosecution

(1) The prosecution bears a legal burden of proving every element of an offence relevant to the guilt of the person charged.

(2) The prosecution also bears a legal burden of disproving any matter in relation to which the defendant has discharged an evidential burden of proof imposed on the defendant.

(3) In this Code:

legal burden , in relation to a matter, means the burden of proving the existence of the matter.

…

13.3 Evidential burden of proof--defence

(1) Subject to section 13.4, a burden of proof that a law imposes on a defendant is an evidential burden only.

(2) A defendant who wishes to deny criminal responsibility by relying on a provision of Part 2.3 (other than section 7.3) bears an evidential burden in relation to that matter.

(3) A defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter. The exception, exemption, excuse, qualification or justification need not accompany the description of the offence.

(4) The defendant no longer bears the evidential burden in relation to a matter if evidence sufficient to discharge the burden is adduced by the prosecution or by the court.

(5) The question whether an evidential burden has been discharged is one of law.

(6) In this Code:

"evidential burden”, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

9. Counsel who appears for Mr Carr, Mr Fernandez, concedes that Mr Carr bears an evidentiary onus in relation to both the matters raised by way of defence, and submits that the evidentiary burden is discharged if evidence is lead that suggests a reasonable possibility that Mr Carr:

1. Had a valid and sufficient reason not to vote; and /or

2. Believed that he had a religious duty not to vote.

10. The question of whether an evidential burden has been discharged is a question of law for the trial judge: R v Khazal (2012) 246 CLR 601; [2012] HCA 26, at [8] and [12]. Where a defendant bears an evidential burden, it is only after the defendant discharges the evidential burden that the prosecution then bears a legal burden to negative the defence beyond reasonable doubt; Code, at 13.1 (2), and R v Khazal, at [12].

11. The evidential burden may be discharged by direct evidence of the matter, or by evidence from which an inference of the matter may be properly drawn. In relation to the drawing of inferences that suggest a ‘reasonable possibility’. French CJ said in R v Khazal at [12]:

The statutory collocation “evidence that suggests a reasonable possibility” is not readily amenable to translation into other terms. But, applying the ordinary meaning of the words of the definition, it is sufficient for the disposition of the Crown’s appeal that s 13.3(3), read with s 13.3(6), requires evidence that is at least capable of supporting the inference that the matter to which the evidential burden applies “exists or does not exist.” This approach reflects the general law position with respect to the evidential burden. If no such inference is able to be drawn from the evidence there is no logical basis for saying that the evidence suggests that inference as a reasonable possibility. Evidence which is merely consistent with or not inconsistent with such a possibility does not “suggest” it. The interaction of the “evidence” and the “possibility” in such a case may be like that of ships passing in the night. Importantly, as s 13.3(5) provides, the question whether an evidential burden has been discharged is one of law.

Agreed Facts

12. The parties have agreed certain facts, now set out in a statement of agreed facts dated 11 September 2017. The statement contains formal matters that establish that Mr Carr was an enrolled elector in the Electoral Division of Sydney, a Federal election was held on 2 July 2016, and there is no record that Mr Carr attended a polling place and had his name on the electoral roll marked or cast a declaration vote.

13. Other significant matters in the context of the prosecution are the following agreed facts:

1. The AEC sent Mr Carr a Penalty Notice on 19 September 2016 that sought an explanation for his apparent failure to vote;

2. Mr Carr responded to the AEC on 13 October 2016. A copy of Mr Carr’s response is annexed to the statement of agreed facts. The response was as follows:

‘I did not vote because I am a 62 yrs old Aboriginal man and for the following reasons:

My race is not recognised in the constitution.

I believe the Government both Federal and state have continually implemented laws and policies designed to destroy the identity of aboriginal people (my race) e.g.

NSW Aboriginal Land rights Act 1983

Native Title Services Act NSW

The Court System

I believe the Govt – is practicing cultural genocide through those ACTS.

Too many of my people die in prison, too many are treated badly by the system e.g. Aboriginal youth bashings N.T. 2016. Thes (sic) are International Human rights Violations. My previous objection’s (sic) to having to vote were upheld and fines were wiped, I have a copy of that notice; If my objection is queried I would like to be taken to court where my objections can be heard Nationally.

Thank you

Wayne Carr (sgd)

28/9/2016

p.s. please remove my name from the electoral roll.

Thank you.’

3. The AEC wrote to Mr Carr on 21 October 2016 stating that the Divisional Returning Officer for the Division of Sydney was not satisfied that Mr Carr had a valid and sufficient reason for his failure to vote; and

4. Mr Carr responded to the AEC on 8 November 2016 stating that he wished to have the matter dealt with by a court.

Mr Carr’s Evidence

14. Mr Carr’s evidence is as follows:

1. A statement dated 3 October 2017; and

2. Oral evidence in Court on 3 October 2017.

The Statement

15. The statement is dated on the first day of the hearing in this Court, and it is the first occasion on which Mr Carr raised an issue concerning a religious duty to abstain from voting, at [3].

16. Paragraphs [4] to [5] and [7] of the statement set out various matters concerning Mr Carr’s early life, and particularly what he considers to be unfair treatment of his family by Government.

17. Paragraph [6] is in the following terms:

‘My strong belief is that voting would make me complicit in actions that are against my Aboriginal religion. As a result, it is my strong belief that voting is against my religious duty.’

18. Paragraph [10] of the statement sets out Mr Carr’s beliefs as follows:

‘I believe that Baime’s (God’s) children, Melgong and Wandong, are progenitors of the present day and that Baime will return to restore equality to the world. By participating in any political system, I believe that I would be oppressing such equality. For that reason, I cannot vote at any Australian election.’

Oral Evidence

19. Mr Carr’s oral evidence commences in the transcript at page 16, and concentrates on the following matters:

1. Mr Carr’s understanding of aboriginal culture at the time of European arrival in Australia; and

2. The apparent convergence of political and religious matters in Mr Carr’s belief system.

20. Early in Mr Carr’s evidence in chief he explained his reasons for not voting in the following way [1] :

The answer that I put in my response for not voting, look what I'll say is this, when Captain Arthur Phillip came into this country the second time, what the British Crown was doing was looking for someone to negotiate first contact and outcomes from that contact. In all contemporary historical records there is no mention whatsoever of a political system practiced by Aboriginal people. That's quite simply because Aboriginal people only practiced religion, religious beliefs and at a certain point in our - after you were born from about the age of seven, when you started to go through ceremony all that was about was religion, religion, religion. There was no hierarchy involved in our society, we didn't have presidents, we did have queens, we didn't have kings we had no admirals, no Sergeants no police no nothing, because what that political process - what that religious process taught you as you went through it, from the time that you were seven is your place in your community. And when you finished that religious training you came out of that religious training and you were part of a community, no person was above another. No person was above another, so when I talk about this sort of stuff that I talk about when I wrote this—

1. Transcript, at 11 line 46 to 12 line 12

21. Mr Carr further explained his reasons [2] :

Q. Yep?

A. That can't be separated from - what I'm basically saying there is look, if I agree to the reasons what I put there is if I agree to, if I agree to endorse government acts and policies imposed upon Aboriginal people, which are put into place to break down Aboriginal cultural values what I'm also doing is breaking down my religious beliefs because that's what governs my identity. That's what makes me an important man, that's what makes me a valuable man, that's what makes me a father to my children and since I adopted my religious beliefs and started living the life expected of me of my Aboriginal elders, it's changed.

2. Transcript, at 12, lines18-26

22. During examination-in-chief Mr Carr gave an answer that explained the apparent convergence of his political and religious beliefs [3] :

Q. Mr Carr just let me stop you, I'll ask you another question which is perhaps more useful, what is your view of your religion?

A. I'm an Aboriginal person, and I'm governed by my Aboriginal spiritual beliefs. The name of my God is Baiame and he laid down the laws for us to practice over all those time and we started learning about Baiame at the age of seven when we started to go through what's now called law - the religious schooling. We didn't practice politics at all.

Q. What relationship is there between what you have just said is your religion and what you said to the AEC?

A. Can't differentiate. I can't differentiate between how I should respond to, because it's all governed by my religious beliefs. I must protect my religious beliefs at all times and I cannot endorse a process that is put in place to breakdown my religious beliefs, I cannot do that under any circumstances.

3. Transcript, at 13, lines 29-42

23. Mr Carr gave a similar response during cross examination [4] :

Q. I put it to you that the reason you didn't vote is because you have a moral objection to voting due to the treatment of Aboriginal people by the Federal and State Government, is that correct?

A. I didn't vote, I didn't vote and I'll say it all day every day, I didn't vote because my religious beliefs will not allow me to participate in the denigration and what I consider to be the violation and the extinguishment of the identity of Aboriginal not only from where I come from but all over Australia. I just can't do that.

4. Transcript, at 16, lines 20-28

24. During re-examination Mr Carr further explained his reasons for having failed vote [5] :

Q. All right, thank you Mr Carr, just - I know you’ve answered this question but I'll just ask you again because it's important, why exactly and just briefly, why exactly is it against your religion to vote?

A. Because I'm well aware of the social situation of Aboriginal people in this country. Like I said I do a fair bit of travel--

Q. But what does that have to do with your religion and your feeling that it's against your religious duty not to vote?

A. I must get involved in a process that revitalises the Aboriginal spirit in this country and if I vote for a system that doesn’t recognise Aboriginal beliefs or customs well then I'm doing the wrong thing by myself and my race.

Principles

5. Transcript, at 18, lines 16-26

Valid and Sufficient Reason

25. The High Court considered what constitutes a ‘valid and sufficient reason’ for not voting in Judd v McKeon (1926) 38 CLR 380.

26. The decision in Judd v McKeon preceded any legislative provision in terms akin to the current s 245(14), and is only concerned with the interpretation of the phrase ‘valid and sufficient reason’, and is also factually distinct from the case put on behalf of Mr Carr. In Judd v McKeon the elector’s objection was essentially political and arose from the dictates of a political organisation of which he was a member and, as such, was neither a matter of conscience nor a function of religious belief. The genesis of the current legislative form of s 245(14), might be well be the obiter dicta of Higgins J in his dissent, a contention upon which Counsel for Mr Carr relies in advancing an interpretation of s 245(14) and 245(15B) to which I will return. Even if that is correct, the decision offers no useful guidance to the interpretation of the later enacted provisions providing an exception for matters of religious belief and duty, although it does stand as the current High Court authority stating the principles governing the interpretation of the phrase ‘valid and sufficient reason’. The relevant statements of principle are extracted in the decision of Western Australia Court of Appeal in Horn v Butcher [2010] WASCA 67, at [28] to [32]:

[28] What constitutes a "valid and sufficient reason" for not voting is a matter which has been left for the courts to decide: Judd v McKeon (1926) 38 CLR 380 at 389 (Higgins J). Knox CJ, Gavan Duffy and Starke JJ did not attempt to describe all circumstances which would provide a valid and sufficient reason for not voting, but they did say that the individual views of the appellant amounting to no more than an expression of an objection to the social order of the community in which he lives did not amount to a valid and sufficient reason for refusing to vote (at 389). Isaacs J did express a view about the meaning of the expression "valid and sufficient reason", but at a very high level of generality. He said:

In my opinion, a "valid and sufficient reason" means some reason which is not excluded by law and is, in the circumstances, a reasonable excuse for not voting. If it be an open challenge to the very essence of the enactment, it is excluded by law and not valid (386).

[29] Higgins J, who dissented on the facts, expressed the view that:

"[V]alid" may fairly be taken as referring to the character of the reason, and "sufficient" is referring to the strength of the reason under all the circumstances (381).

Higgins J then gave, as an example, an elector who said that he did not go to vote because his wife was ill, "that being the character of the reason which would commend itself to most people", but that if the illness merely consisted of "an ordinary catarrh", the reason would hardly be called sufficient.

[30] Rich J said that:

The reason must be valid -- sound in law and fact; and if valid, must be sufficient -- substantial and satisfactory in the absence of countervailing answer (390).

[31] The effect of this case is that a decision must be made on a case by case basis, whether there is a valid or sufficient reason. The cases referred to by the parties did not suggest otherwise. The words "valid" and "sufficient" are not terms of art, but bear their ordinary meaning.

[32] The word "valid" in ordinary meaning may mean "sound, just, or well-founded" or "having force, weight or cogency; authoritative" or "legally sound, effective or binding; having legal force; sustainable in law": Macquarie Dictionary (3rd ed revised, 2003). The word "sufficient", in ordinary meaning, means "enough or adequate": Macquarie Dictionary.

27. Similarly in Krosch v Springell; Ex parte Krosch [1974] Qd R 107 the Full Court of the Supreme Court of Queensland reviewed the decision of a Magistrate under s 63(10)(a) of the Elections Act (1915 -1971) (Qld), which relevantly provided an exception to a voter who had failed to vote but who had a ‘valid and sufficient excuse’. The Full Court, in holding that the Magistrate had erred, said, at 108:

… the words “valid and sufficient” still have to be determined in accordance with the law laid down by the High Court in Judd v. McKeon (1926) 38 C.L.R. 380. The additional parenthesis, “(in this section the words ‘valid and sufficient excuse’ shall include an honest belief on the part of an elector that abstention from voting is part of his religious duty)”, do no more than bring into the meaning or the possible meanings of “valid and sufficient” one specific reason ...

28. Religious duty was not in issue.

29. The issue of religious belief as a valid and sufficient reason for failing to vote was considered by Hogarth J in the South Australian Supreme Court in Douglas v Ninnes (1976) SASR 377. The South Australian legislation contained no exemption based on religious belief and referred only to a ‘valid and sufficient reason’. The elector ultimately failed because Hogarth J, who accepted that the elector had a relevant religious belief, did not accept that the evidence established that those religious beliefs led to a consequent belief that he should not vote for reasons of morality or conscience, at 383. It is clear from a reading of the decision that the deficiencies in the evidence were the persuasive factor in the outcome, and at least one passage in the judgment says that a valid and sufficient reason may have emerged if the evidence were more intelligibly lead. Counsel for Mr Carr therefore contends that the decision in Douglas v Ninnes should be read as supporting the contention that, in circumstances where the evidence establishes the relevant connection between religious belief and a consequent belief that the elector should not vote by reasons of morality or conscience, a valid and sufficient reason is established independently of any specific exemption for religious belief and duty. That submission necessarily postulates a hypothetical outcome in Douglas v Ninnes that is based on evidence different to that actually before Hogarth J, and which finds no direct expression in the reasons; as a conclusion it therefore only arises by inference. It is not, in my view, a safe conclusion.

Religion

30. The definition of religion was considered by the High Court in Church of the New Faith v Commissioner for Pay-Roll Tax (Vic) (1983) 154 CLR 120; [1983] HCA 40, where the issue was whether Scientology was a ‘religious institution’ for the purposes of the Pay-roll Tax Act1971 (Vic) and therefore exempt under s 10(b) of the Act. The High Court found, by majority, that it was, although there is no plurality of reasoning.

31. While the primary focus of the decision in Church of the New Faith v Commissioner for Pay-Roll Tax (Vic) was the liability of the Church to pay pay-roll tax in Victoria, and the exemptions from that liability, the decision stands as the current High Court authority on the principles to discriminate in law between what is a religion, and what is not, in the context of immunities and privileges conferred on the ground of religion.

32. The differing reasoning of Court may be summarised as follows. Mason ACJ and Brennan J wrote, at 136, that:

…the criteria of religion [are] twofold: first, belief in a supernatural, Being, Thing or Principle; and second, the acceptance of canons of conduct in order to give effect to that belief.

33. In contrast, Wilson and Deane JJ set out five ‘indicia’ of a religion, at 174:

1. A belief in the supernatural;

2. A belief in ideas relating to ‘man's nature and place in the universe’;

3. The adherence to particular standards, codes of conduct or practices by those who hold the ideas;

4. The existence of an identifiable group of believers, even if not a formal organisation; and

5. The opinion of the believers that what they believe in constitutes a religion.

34. Murphy J wrote that there is no acceptable criterion or essence of a religion.

35. The criteria described by Mason ACJ and Brennan J are in substance the same as elements (1) and (3) of the criteria set out by Wilson and Deane JJ, although the latter include three (3) additional elements.

Legislative History

36. Legislative provisions providing an exception for a failure to vote upon proof of a valid and sufficient reason have been incorporated into the Commonwealth legislation since it was first enacted. At the time of Judd v McKeon, s 128A(12) of the Act provided “every elector who fails to vote at an election without a valid and sufficient reason for such failure shall be guilty of an offence”. While, at various times, the provision has changed in form and place within the Act, the core concept of ‘valid and sufficient reason’ has remained the same.

37. Section 245(14) of the Act was first introduced as s 245(13A) by the Electoral and Referendum Amendment Act 1989 (Cth), following a recommendation of a Joint Select Committee on Electoral Reform in a Report after the 1984 General Election [6] . The Act was further amended by the Electoral and Referendum Amendment Act 1991 (Cth), which moved the provision to become s 245(14). The wording remained the same.

    6. ‘The Operation During the 1984 General Election of the 1983/1984 Amendments to Commonwealth Electoral Legislation: A Report from the Joint Select Committee on Electoral Reform, Report No.2’, December 1986, at [6.144] to [6.145].

38. The Explanatory Memoranda for the amending acts contain very little information about the provision. The Second Reading Speech for the first amending act does not specifically discuss the provision other than referring to an earlier bill in 1988. That Second Reading Speech also does not discuss the provision.

39. The recommendation of the Select Committee to introduce an exemption for religious duty apparently adopted the language of a provision introduced by amendments to Victorian legislation in 1926 following the decision in Judd v McKeon, and which itself used the language of Higgins J in his obiter dicta concerning religious duty. It must be acknowledged that the conclusion concerning the lineage and derivation of the provision rest upon no more than the obvious textual similarities, and is not implicitly or explicitly acknowledged in any background materials.

Has Carr discharged the evidential burden?

40. The evidential burden has been described as slight, and requires only evidence that suggests a reasonable possibility of the matter.

41. In relation to the issues under s 245(14), Mr Carr’s Statement (at [6]) and the passages of oral evidence set out above are sufficient to discharge the evidential burden.

42. In relation to the issues under s 245(15B), and on an assumption that matters of conscience, whether moral, political or religious, can be a valid and sufficient reason not to vote, to which I will later return, Mr Carr’s Statement and the passages of oral evidence are sufficient to discharge the evidential burden.

Religious Duty – section 245(14)

43. The Prosecution accepts that the Aboriginal spirituality practiced by Mr Carr is, objectively, a religion[7] . That concession is properly made having regard to evidence given by Mr Carr concerning the nature of his beliefs, and the principles stated by the High Court in Church of the New Faith v Commissioner for Pay-Roll Tax (Vic). It is accordingly unnecessary to further consider the submission made by Counsel for Mr Carr that the text of s 245(14) does not permit a quasi-anthropological or theological enquiry into the objective character of an elector’s beliefs. In opposition the Prosecution contends that, properly construed, the objective character of the belief is a relevant consideration under s 245(14), and if otherwise the word ‘religious’ would be rendered meaningless. The Prosecution also submits that the evidence must not only establish an objective religious belief, but also identification of the part of the religion giving rise to the electors subjective belief that it is part of their religious duty not to vote[8] .

    7. Prosecution’s Further Submissions dated 21 November 2017, at [8].

    8. Prosecution’s Further Submissions dated 21 November 2017, at [10].

44. Section 245(14) relevantly contains the following phrase ‘… the fact that an elector believes …’, and is therefore, by its terms, engaged by reference to the subjective belief of the elector. The question is one of fact, to be determined by the tribunal of fact. That the section is cast in subjective terms must be at least partially for the reason expressed by Mason ACJ and Brennan J in Church of the New Faith v Commissioner for Pay-Roll Tax (Vic) that the state ‘has no prophetic role in relation to religious belief’ because the state ‘can neither declare supernatural truth nor determine the paths through which the human mind must search in a quest for supernatural truth’, at [134]. Understood in that way, and unconstrained by any requirements of the kind for which the Prosecution contends, s 245(14) is an exception of potentially unlimited application that would protect individuals whose beliefs fall beyond, and probably far beyond, the boundaries of theistic and monotheistic religions and other widely accepted and familiar religions founded on belief systems other than Christian or Judaic teachings and principles, and perhaps extend to beliefs that might not be characterised by community standards as reasonable beliefs; which renders the absence of a requirement that the belief be honestly or reasonably held, which would expressly import objective elements, both notable and surprising. Counsel for Mr Carr nevertheless contends that the problem does not arise because it would be open to the Court to adversely determine, as a matter of fact, whether an elector truly held religious beliefs that fell outside the spectrum of accepted religious beliefs; for example, those who proclaim belief in Jediism from the Star Wars franchise of films.

45. The latter approach is consistent with the interpretation of Judd v McKeon in Horn v Butcher; to the extent those authorities establish that the question of whether a valid and sufficient reason is proved must be decided on a case by case basis. In resolving that factual question it is however inevitable that some part of the consideration must focus on the nature of the belief, whether it is grounded in, and conforms to, any indicia of religion, and therefore can be sensibly described and accepted as religious in nature. In that context it must be recognised that the issue is not one of freedom of religion or belief, but is rather whether an exception to an otherwise universal obligation should be available based on that belief. The word ‘religious’ in s 245(14) must have some meaning and purpose, and an ordinary reading of the section shows that it limits the class of beliefs and the source of the duty that engage the exception. The word ‘religious’ would be entirely otiose if electors are free to determinatively claim that any belief, no matter how outlandish, is religious and the source of a duty not to vote.

46. As a matter of ordinary construction, s 245(14) requires the duty be a function of the religious belief. The ordinary meaning of the word duty is a ‘moral or legal obligation; a responsibility’. In the context of religious belief the duty must be moral. It follows that some element of the religious belief must create a moral obligation not to vote, and the requisite connection cannot be proved if it is not identified in evidence. It would not be sufficient to state a requisite religious belief and assert without reference to any element that a moral obligation not to vote flows; and a failure to do so would justify an adverse factual finding concerning the belief as to the existence of the duty.

47. Both the Prosecution and Counsel for Mr Carr submit that there is a causal element to s 245(14) and it must be proved in evidence that the belief is a cause of the failure to vote [9] . That is plainly correct.

    9. Further Submissions of the Accused dated 4 December 2017, at [26] to [28]; Prosecution’s Further Submissions dated 21 November 2017, at [10]

48. It follows that s 245(14) requires the elector to establish:

1. A belief;

2. Religious in character;

3. An element of which creates a moral obligation not to vote;

4. Which causes the elector not to vote.

49. There are stark differences between Mr Carr’s written response to the AEC in October 2016, and his statement and oral evidence to the Court. Mr Carr’s written response to the AEC did not state that he had a religious duty to abstain from voting, and there was no reference of any kind to religious belief and duty, as those concepts would be ordinarily understood, in the matters proffered by Mr Carr as his valid and sufficient reason for having not voted.

50. Ms Eagan, who appears for the AEC, suggested to Mr Carr in cross-examination that the issue of religious duty to abstain was a recent invention, which he denied [10] . While Mr Carr appeared as a genuine and earnest man, it is difficult understand why a deeply held religious belief that he now says required him not to vote, would form no part of his response to the AEC in October 2016 after he was asked to provide a valid and sufficient reason for having failed to vote; and it is not possible to explain the difference on the basis that Mr Carr’s evidence to the Court is a more fulsome and complex statement of his reason for having not voted.

    10. Transcript, at 16 lines 30–39 and 18 lines 3-6

51. The matters set out in Mr Carr’s response to the AEC are overtly political in nature, representing as they do an apparently sincere belief that Aboriginal people have been, and continue to be, poorly treated in Australia. Whether that view is justified, or not, is immaterial to the resolution of the issues before the Court, and whatever else might be said about those matters, the terms of Mr Carr’s written response to the AEC do not readily answer the description of religious doctrine, belief or duty.

52. Regretfully I conclude that Carr’s evidence concerning the convergence of what would be regarded as political and religious beliefs is not reliable evidence and cannot be accepted. Mr Carr’s failure to mention any religious duty reason in response to the AEC is significant, and his evidence that it is all religious is a patent device to explain away the fact that he failed to raise a reason of religious duty in his written response to the AEC.

53. That conclusion is reinforced by my subjective assessment of Mr Carr as a witness; his demeanour and answers clearly suggested that he approached giving his oral evidence as an opportunity to project his views on Aboriginal disadvantage to a wider audience, which is also evident from the statement in his response to the AEC where he asked to be prosecuted so that ‘… my objections can be heard Nationally’. Many of Mr Carr’s answers were long, rambling and unresponsive speeches that expanded on his views on Aboriginal disadvantage and mistreatment, and lacked any focus on the matters for determination.

54. For those reasons I do not accept that Mr Carr believed he had a religious duty not to vote, and the defence under s 245(14) fails.

Conscience as a Valid and Sufficient Reason – sec 245 (15B)

55. Mr Carr’s defence under s 245(15B) is put to the Court on the basis that his conscience, whether described as moral, political or religious, is a valid and sufficient reason for his failure to vote. The defence raised under s 245(15B) is based on the same evidence, and recast as a matter of social, moral or political conscience arising from the same professed beliefs.

56. There is no binding authority to which I have been taken that states that matters of conscience are a valid and sufficient reason not to vote.

57. R v Adam Easton [2017] NSWLC 19 is a recent decision of this Court concerning s 245(14). In that case the belief was a ‘deeply held moral objection’, that the learned Magistrate described as a ’truly held conscientious life viewpoint’ and which was the basis of a finding that the evidence established ‘an honestly held belief, a moral code that requires him not to vote’, at [41]. The charge was dismissed on the basis that s 245(14) ‘allows for a form of conscientious objection’, at [41].

58. To that extent the decision in R v Adam Easton extends the reach of s 245(14) to moral or conscientious objections, it creates and applies a wholly new interpretation of s 245(14) that cannot be reconciled with the ordinary meaning of the words of the section and is not supported by any authority. While it is true that inferior courts retain the duty and function of refining and developing legal principles that have not been the subject of binding decisions by higher courts, it is also well established that an inferior court is not bound by the decision of an inferior court of higher curial gradation and that the doctrine of stare decisis does not apply as between two inferior courts: Valentine v EID (1992) 27 NSWLR 615, at 620-622, per Grove J; Whittaker v Delmina Pty Ltd (1998) 87 IR 268, at [17] to [18]. It follows that a decision of this Court is not binding in this Court; and the principle of judicial comity does not require an inferior court to follow a decision of an equal ranking court when convinced that the latter decision is wrong: Rawson Finances Pty Ltd v Deputy Cmr of Taxation (2010) 189 FCR 189; 268 ALR 362; at [56]; Undershaft (No 1) Ltd v Cmr of Taxation (2009) 175 FCR 150; 253 ALR 280, at [68]-[88] ; La Macchia v Minister for Primary Industries & Energy (1992) 110 ALR 201, at 204.

59. The circumstances in which a court exercising original jurisdiction might properly depart from an earlier authority of the same court exercising the same original jurisdiction are set out in BHP Billiton Iron Ore Pty Ltd v The National Competition Council (2007) 162 FCR 234; [2007] FCAFC 157, at [83] to [89]. The Full Court said, at [86]:

The circumstances which might properly lead to a departure from an earlier authority will necessarily vary according to the content of the case and the issues and therefore no prescriptive rules ought to be formulated. However, the point of equilibrium in that balance might be reached by recognising the required emphasis necessary in concluding that an earlier authority is “plainly wrong” or “clearly wrong”.

60. With the greatest respect to the learned Magistrate who decided R v Adam Easton, I am forced to conclude that the ratio, and the decision, is plainly or clearly wrong. The words of s 245(14) do not, on any ordinary reading, support the conclusion that conscientious objection is a valid and sufficient reason not to vote, and the conclusion of the learned Magistrate renders the word ‘religious’ in the section otiose. Further, there is no authority that supports the ratio and, notably, none is cited. To further reinforce the conclusion that the decision is plainly or clearly wrong, there is quite simply nothing in the travaux préparatoires for the provision that refers, or even hints, that conscientious objection was to be a proper basis for the exception in s 245(14). For those reasons I am not bound to follow or apply the decision, and I decline to do so.

61. In that context, and against the legislative background set out above, Counsel for Mr Carr submits that the text of s 245(14) traces directly to the obiter dicta of Higgins J in Judd v McKeon and therefore informs the way that conscience, whether described as religious, moral or political, should be taken to fall within a generally worded ‘valid and sufficient reason’ provision that does not expressly refer to religion [11] ; which lays the framework for Mr Carr’s second defence under s 245(15B), that he had a valid sufficient reason for failing to vote in that voting was against his conscience.

    11. Further Submissions of the Accused dated 4 December 2017, at [47] to [50].

62. That submission is based on the proposition that the decision in Judd v McKeon, and particularly the dissent by Higgins J, provides “a crucial historical backdrop to the construction of s 245(14)”[12] , and picks up the process of reasoning of Olney J in Blakeney v Coates (Unreported, WASC, Full Court, 22 September 1982), a decision of the Full Court of Western Australia, at 9. In that case the elector, who was a conscientious objector on religious grounds, failed to establish a valid and sufficient reason within the meaning of the Electoral Act 1902 (WA), which had no specific exemption based on religious belief. Olney J approached the decision in Judd v McKeon on the basis that Parliaments must be taken to have known of the divergent views within the High Court concerning the interpretation of the phrase ‘valid and sufficient reason’, and by subsequently enacting provisions that aligned with the dissent of Higgins J concerning an exception for religious duty, must also be understood to have adopted his broader interpretation of the phrase ‘valid and sufficient reason’ in preference to the narrower interpretation of the majority.

    12. Further Submissions of the Accused dated 4 December 2017, at [74].

60. At least one difficulty with the approach is that, while it might be accepted that legislative draftsmen and Parliaments approached their tasks informed by the decision in Judd v McKeon, and particularly the divergent views of the plurality and in the dissent by Higgins J, they have taken from that basket of views the elements that were considered appropriate for inclusion in the legislation, and otherwise left the interpretation of the phrase ‘valid and sufficient’ reason to the Courts uninstructed by any further legislative direction. It would be an error to ignore the fact that the 1926 amendments to the Victorian legislation following Judd v McKeon, and much later in the Commonwealth Electoral Act, took the form of an inclusive definition, and there was no attempt to comprehensively or further define the concept and phrase in a way that aligned with the view of Higgins J in Judd v McKeon. With great respect to those who would otherwise contend, it simply does not follow that just because one aspect of the dissent was accepted into the legislation that the Parliament must be taken to have adopted the whole of the dissent. There is no warrant in the Report of the Joint Select Committee[13] , in the broader historical record, or on the face of the legislation, to conclude that the scope of the ‘valid and sufficient reason’ exception is to be interpreted other than in conformity with the views of the majority in Judd v McKeon.

    13. Ibid, Report No. 2, at [6.144] to [6.145]

61. While Counsel for Mr Carr characterises Mr Carr’s objections as matters of conscience, adopting the language of the majority in Judd v McKeon, it is difficult view Mr Carr’s evidence as anything more than an expression of his objection to the social order of the Australian community based on his perception of mistreatment of Aboriginal Australians; which, by reason of the majority in Judd v McKeon, cannot amount to a valid and sufficient reason for refusing to vote.

62. As to the question of whether matters of conscience can be a valid and sufficient reason not to vote, the reasons of Mason ACJ and Brennan J in Church of the New Faith v Commissioner for Pay-Roll Tax (Vic) express persuasive reasons that, by parity of reasoning, explain why the dictates of conscience should not be a solvent of the legal obligation to vote, at 136[14]:

But the area of legal immunity marked out by the concept of religion cannot extend to all conduct in which a person may engage in giving effect to his faith in the supernatural. The freedom to act in accordance with one's religious beliefs is not as inviolate as the freedom to believe, for general laws to preserve and protect society are not defeated by a plea of religious obligation to breach them: cf Cantwell v Connecticut (1940) 310 US 296 at 304. Religious conviction is not a solvent of legal obligation. Thus, in Jehovah's Witnesses Inc a prohibition against subversion of the war effort was not circumvented by the pacifist ideals of the Jehovah's Witnesses, and this Court rejected their challenge to the validity of the National Security (Subversive Associations) Regulations, even though s 116 protects both freedom of religious opinion and the free exercise of religion (See also Adelaide Co of Jehovah's Witnesses Inc v Commonwealth (1943) 67 CLR 116).

14. See also Adelaide Co of Jehovah's Witnesses Inc v Commonwealth (1943) 67 CLR 116

66. The passage from Church of the New Faith v Commissioner for Pay-Roll Tax (Vic) recognizes that conduct giving effect to the dictates of religious or other beliefs, and by parity of reasoning conscience, does not necessarily prevail when in conflict with universal obligations under the laws that preserve and protect society.

67. Applying the principles from Judd v McKeon, matters of conscience are not excluded by law and, depending upon the nature of and reasons for them might well be valid and sufficient within the ordinary meaning of those terms. The electoral system is however a core and structural element of the Australian constitutional system of government, and the obligation to vote is integral to the electoral system. Mr Carr’s contention would extend the exception for a valid and sufficient reason for failing to vote to a potentially unlimited class of moral and/or political objectors, which would quickly undermine the evident political and social benefit flowing from universal participation in the electoral system, and therefore would constitute an open challenge to the very essence of the enactment. For the reasons stated by the majority in Judd v McKeon, such an approach is excluded by law and not valid.

68. Mr Carr is free to believe what he wants, but the exception provided by s 245(15B) cannot extend to excuse conscientious objectors from the universal obligation of all adult Australians to vote, and which is necessary to maintain our system of democratic government.

69. For those reasons, the defence under s 245(15B) also fails.

Conclusion

70. Mr Carr stands to be convicted.

Magistrate B Shields

Note: The appeal to the NSW District Court on conviction in this matter was withdrawn and dismissed. 

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Endnotes

Amendments

15 January 2019 - Note at end of decision updated to reflect appeal outcome

Decision last updated: 15 January 2019