A spectacularly innovative** decision by a magistrate in a New South Wales Local Court has made voting at Federal Elections in Australia essentially voluntary.
Magistrate David Heilpern’s decision was in the prosecution of Adam Easton who had failed to vote at the 2016 Federal Election. It is apparently the first time s.245(14) of the Commonwealth Electoral Act has ever been considered by a Court – and Magistrate Heilpern found Easton’s alleged belief in freedom, and alleged belief that all politicians cannot be trusted (the factual or rational nature of this belief was unsubstantiated in evidence in the Court) meant he had a sort-of religious duty to not vote.
- The decision is here in full http://www.caselaw.nsw.gov.au/decision/5a39c28ae4b074a7c6e1b416;
- A report of the decision is here http://www.theguardian.com/australia-news/2017/dec/20/man-wins-legal-battle-after-arguing-voting-in-2016-election-morally-corrupt; and
- The relevant section of the Act is here http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/cea1918233/s245.html.
In making his ground-breaking decision the Magistrate specifically repudiated and rejected many precedents and findings of other Courts, including Australia’s High Court, amongst them this:
“…there is no force whatever in the contention that a valid and sufficient reason exists for non-compliance with the primary duty of voting, merely because no one of the ultimate candidates meets with the approval of the given elector. If that were admitted as a valid and sufficient reason, compulsory voting would be practically impossible”.
Isaacs J in Judd v McKeon (1926) 38 CLR 380 at 386
The section in question provides a religious exemption, Magistrate Heilpern explicitly finds Easton’s beliefs are not religious, yet says his refusal to vote is allowed via the religious exemption, thus:
“Having carefully considered the evidence of the defendant, I am satisfied that his evidence shows an honestly held belief, a moral code that requires him not to vote. To vote would be to breach a truly held conscientious life viewpoint. Thus the defendant in this case has a devout (but not religious) objection to voting. It would be simply nonsensical that were his deeply held moral objection subjectively connected to a recognised religion or a belief in god, that this would, of itself, be a valid and sufficient reason, but that a conscious agnostic well-developed moral faith as described by the defendant would not. The provision allows for a form of conscientious objection in my view, and that is what has been evidenced here.”
This decision will be applauded by the organised far right of Australian politics, who have long mounted a disingenuous demand for the freedom to not vote … which they expect will, incidentally and coincidentally of course, reduce the Labor vote. It will be opposed by everyone who recognises, inter alia:
- compulsory voting tends to build a relationship of mutual obligation between the governed and Parliaments, which is a positive contributor to social cohesion, and
- the ugliness and vapidity of US election campaigns is in part caused by the need to make voters angry enough to bother to vote in a voluntary system – and that’s where we will head if this decision is allowed to stand.
Will the decision be appealed, or will anti-compulsory-voting forces in the Liberal Party block both an appeal and amendments to the legislation before the next Federal Election?
* You can access the Courier Mail version here http://bit.ly/2BLBTg4
** possibly in this instance actually meaning “stupid”
Close observation of US Presidential election campaigns shows the enormous and negative impact of voluntary voting. Starry-eyed* Australians say voluntary voting simply means voters won’t be forced to choose between candidates they dislike.
They’re wrong – the differences between voluntary and compulsory voting are far-reaching.
US election campaigns – Presidential particularly – must devote massive resources to enrolling voters** which raises the cost, which puts pressure on candidates and parties to be constantly in fundraiser mode. Many senior campaign advisors say candidates should spend half their time fundraising. The voluntary nature of voting puts even greater pressures on the system and contributes to making US elections the money-pit and money-deformed system they are.
Four weeks out from election day, every last bit of local activity on the ground switches from being about voter enrolment to nagging people to vote – forget any thought of a high-minded contest of ideas. Every. Last. Bit. Of. Local. Activity.
But the bigger problem is the way voluntary enrolment and voting change the discussion.
In Australia’s compulsory voting system, knowing*** every voter is likely to vote, candidates and campaign strategists have to generate in each voter merely a mild preference between, say, Malcolm Turnbull and Bill Shorten. In the US system, candidates and campaign strategists have to generate in each voter a preference so strong that it motivates them to vote, usually on a working day when they don’t have to bother – a motivating preference.
That’s done through the use of language and persuasion tactics much more extreme than we usually see in Australia – the kind of campaign Australians say they find revolting: blowing minor differences into massive schisms, the most hyperbolic descriptions, careful mischaracterisation of the other side, pressing questions as though they were fact, aggressive and divisive language, and so on. They all go to minimise any prospect of bipartisanship, political dialogue, or cross-party cooperation, anywhere in the political system.
In seeking to de-legitimise the opponent, they trash the institution; to save the village from falling to the enemy, they destroy the village.
There’s another issue, too: there’s a contract involved in voting – an exchange of obligations, a reciprocity – that lends the outcome legitimacy, and burdens the victor with obligations. Those who participate in society by voting have a stake in its institutions, behaviours and success, and in exchange for them participating in elections, society and in particular the elected Government owes voters respect and recognition. Acknowledgement of reciprocal obligations and legitimacies is weaker, and hence the existence of those things is weaker, between Governments and non-voters.
These consequences, driven so much by voluntary voting, tell a substantial part of the story behind the complete inability of the US system of Government, to govern.
(Half of the Ethical Consulting Services team – that would be Mike – will be embedded within the US Presidential campaign, from today up to US Election Day on 8 November.)
* And some who just want electoral advantage
** Enrolment is voluntary, too.
*** Presuming rather than knowing, but that’s another discussion entirely.