Failure to vote because of COVID

Back in 2020, it was probably a pretty good excuse that you couldn’t vote because you had COVID-19 or because you didn’t want to catch it. But given we’ve been living with the disease for years now, and there are no government restrictions in place any more, how does that excuse stack up now?

What does the law say?

As we all know, voting is compulsory. The legislation which makes it so is the Electoral Act 1992 (Qld). Section 186 of the Act makes it an offence not to vote unless you have a “valid and sufficient excuse”. You can be fined 1 penalty unit for failing to vote — which is currently $154.80 (current March 2024).

The High Court gave some examples of what the phrase “valid and sufficient excuse” means way back in 1926. The name of the case was Judd v McKeon (1926) 38 CLR 380 and the Court said:

“Physical obstruction, whether of sickness or outside prevention, or of natural events, or accident of any kind, would certainly be recognised by law in such a case. One might also imagine cases where an intending voter on his way to the poll was diverted to save life, or to prevent crime, or to assist at some great disaster, such as a fire: in all of which cases, in my opinion, the law would recognise the competitive claims of public duty.”

The District Court in Queensland affirmed this position in the case of Anderson v Kerslake [2013] QDC 262. Don’t bother reading it though; that case involved someone who didn’t believe the laws of Australia applied to them, as a so-called “sovereign citizen“.

So, if you can show there’s been some physical obstruction or emergency preventing you attending a polling booth to vote, you should be able to substantiate the grounds for a valid and sufficient excuse.

Is COVID a valid and sufficient excuse?

Even though the COVID restrictions and lockdowns are over, the answer is probably still yes, if you were actually sick on election day. In that case, you might be entitled to rely on the excuse if the sickness prevented you from leaving the house to vote.

Relying on what the High Court said above, it could easily be argued that it is a physical obstruction to voting in person. However, a fear of catching COVID, or concern over spreading a recent case of COVID, probably wouldn’t cut it.

Other excuses like you had too many tasty IPAs, couldn’t be bothered, or don’t want to vote for anyone because they’re all terrible, are unfortunately not valid reasons.

If you’ve been given an Apparent Failure to Vote Notice and want to rely on this excuse, you should contact us for specific advice.

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