“‘Choice of the Manner in Which Thou Wilt Die’: The Australian Courts on Compulsory Voting”

Graeme Orr has posted this draft at SSRN (forthcoming, Matteo Bonotti and Paul Strangio (eds) ‘A Century of Compulsory Voting in Australia: Genesis, Impact and Future’ (subject to contract, Palgrave Macmilan). Here is the abstract:

Compulsion requires law: legislative parameters and institutional enforcement. Across Australia the compulsory voting regimes are similar. Electoral authorities administer infringement notices for failure to turnout (but rarely for failure to enrol) without a reasonable excuse. And legislation sets a graded penalty process, with a modest fee to expiate the infringement but a higher fine and risk of a recorded conviction if the notice is unsuccessfully contested.

To legal realists, the law is what the courts ultimately hold it to be. In that tradition, but also recognising the sometimes contested idea of compulsion, this paper focuses on the judicial norms of compulsory voting in Australia.

These norms derive from two classes of cases. The first are decisions, from courts elevated in the hierarchy, about why compulsory voting is constitutionally legitimate. These decisions have survived a turn from respect for parliamentary sovereignty over electoral law towards implied political rights and freedoms. Is this merely judicial pragmatism, given how entrenched and popular compulsion is in Australian electoral practice? Or does it reflect a justification of compulsion, a normative conception of what representative democracy ought involve?

The second class of cases involve (typically) lower courts reflecting on what amounts to a ‘valid and sufficient reason’ for not turning out to vote, including discretion to forgive an offence. Since compulsion is not just a high-level norm, but a practice, these cases too help us understand what the law imagines it is compelling electors to do or be, and why.

Ultimately the courts have been remarkably supportive of compulsion, albeit with a bleakly realist, rather than positive, vision of the role of compulsion in electoral democracy. That bleak conception is captured by behaviourist ideas of forcing choice amongst options where an elector may have no sincere preference. Voting becomes a matter of endorsing the lesser of a set of evils akin (in a literary phrase borrowed by the High Court) to choosing the manner of one’s death.


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