Is failing to vote because of COVID-19 a valid and sufficient excuse?

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Many people chose not to vote in the Queensland election today. And fair enough, given the Prime Minister has made it pretty clear he wants us all to stay home as much as possible to contain the spread of the virus. Or flatten the curve, as you will.

So it seems at odds with that advice that millions of Queenslanders have been required to vote today. Sure, you could have registered for a postal vote, and had plenty of time to do that before today. But the cut-off for postal voting came before things really got worse; before Bondi was swamped and closed in the space of 24 hours. Before restrictions were placed on attending trampoline venues and barre classes.

So, if you chose not to vote today because of the COVID-19 pandemic, is that a good enough excuse?

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 $133.45.

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-19 a valid and sufficient excuse?

Obviously people that are in mandated isolation have a valid excuse not to vote and could rely on this without issue.

But what about everyone else? Given we are in uncharted waters, it is difficult to predict what the response will be to non-voters relying on COVID-19 as an excuse not to vote. Certainly, from our point of view, we believe the argument does have some merit. Here, the restrictions that are in place, together with the real and foreseeable risk to members of the public of catching the disease by voting at an election booth, would be a valid and sufficient excuse.

Relying on what the High Court said above, it could easily be argued that it is a natural event that has led to a physical obstruction to voting in person.

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 to get some specific advice.

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