Australian Politics and Policy - Senior, 2019a

Australian Politics and Policy
election day (or to request a postal ballot paper), receive a ballot paper and deposit
that paper in the ballot box (or return it via post) without writing a valid vote
on it. Many Australians do this intentionally, either leaving their ballot blank or
markingthepaperinwaysthatdonotconstituteavalidvote.Otherscastaspoiled
ballot unintentionally; Australia’s comparatively complex ballot paper makes voting
formally particularly difficult for voters with poor literacy or English-language
proficiency.
The extent to which the Commonwealth Electoral Act 1918 commands voters to
(or to attempt to) cast a valid ballot is not entirely clear. Some commentators and
political actors believe that voters only need to attend a polling booth (or request a
postal ballot paper) and have their name marked off by an AEC employee; we will
call this the ‘attendance only’ argument. Others argue that the law requires voters
to place a ballot paper into a ballot box (or return a postal ballot paper to the AEC),
whether it contains a valid vote or not – the ‘blank ballot’ argument. Others still
argue that the legislation requires voters to intend to cast a valid vote (the ‘valid
vote’ argument) – that the ‘duty of every elector to vote’ extends to expressing their
preference for certain candidates over others.
The‘attendanceonly’argumentisdrivenbytherealitythat,pertheAct,the
Electoral Administrator collects the names of enrolled voters who have not
attended a polling station and had their attendance noted by AEC staff. These
individuals are then subject to penalties for non-voting. The AEC has no means of
penalising Australians who have their names marked off, walk to the polling booth
and destroy their ballot paper without depositing it into the ballot box. 3 However,
five separate instances of judicial review have found that the Commonwealth
Electoral Act 1918 requires voters to deposit a ballot paper into the box. 4
The legality of submitting a blank ballot paper to fulfil the duty to vote in
Australia federal elections is less clear. A strict reading of the Act suggests that
‘to vote’ requires a voter to mark their ballot paper in such a way as to reflect
a preference for some candidates over others. 5 Again, however, the secrecy of
the voting process means that voters who cast a blank (or otherwise informally
marked) ballot paper are not able to be penalised. In practice, then, the ‘blank
ballot’ argument stands; it is legal to submit a blank ballot paper in Australia, in as
much as doing so cannot reasonably be punished under the relevant law. Moreover,
casting a blank ballot is widely viewed as a legitimate form of political expression
in Australia. 6 Lijphartnotesthat‘thesecretballotguaranteestherightnottovote
remains intact’, 7 while Twomey argues that the secret ballot and compulsory voting
as defined by the Act are essentially at odds. 8
3 See, for example, Twomey 1996.
4 AEC 2019b.
5 Twomey 1996.
6 Hill 2002.
7 Lijphart 1997.
8 Twomey 1996.
90