The Offence of Failing to Vote at an Australian Election or Referendum

On the 14th of October 2023, Australians will have their say in a referendum about whether to change the Constitution to recognise the First Peoples of Australia by establishing a body called the ‘Aboriginal and Torres Strait Islander Voice’.

Voters will be asked to vote ‘yes’ or ‘no’ on a single question. The question on the ballot paper will be:

“A Proposed Law: to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice.

Do you approve this proposed alteration?”

At this stage it appears that the ‘No’ vote is likely to succeed, however, according to some results, around 1 in 10 Australians say they don’t plan to vote at all.

Here’s what you need to know about voting in the upcoming referendum and whether there are criminal consequences for refusing to vote.

What is a referendum?

A referendum is a vote of the Australian people on a proposed change to the Australian Constitution.

The Australian Constitution outlines the structure and powers of the Australian government, created during Federation, outlining the executive, legislative and judicial functions of the State.

Section 128 of the Australian Constitution outlines the process of changing the Constitution. It says a referendum is passed if it is approved by a majority of voters across the nation and a majority of voters in a majority of states, this is known as a double majority.

What is an Aboriginal and Torres Strait Islander Voice to parliament?

A Voice to parliament is a body that works with the government of the day on laws and policies directly or indirectly affecting Aboriginal and Torres Strait Islander people.

There have been several Aboriginal and Torres Strait Islander advisory bodies to parliament in the past. The upcoming referendum is not about what any particular body would look like, but about enshrining this advisory body in the Constitution, so that it cannot be dismantled on the basis of political whims following changes in government.

The Voice will be purely advisory and will not bind parliament decision-making. Advocates for the Voice see it as a crucial accountability measure to ensure that Aboriginal and Torres Strait Islander people are heard on matters which impact them.  Critics of the Voice see the Constitutional recognition of a body established on the basis of Indigenous status as ‘divisive’.

You can read the formal ‘Yes’ and ‘No’ cases for the upcoming referendum here.

Who is eligible to vote in a referendum?

Section 128 of the Constitution states that a referendum will be undertaken by electors “qualified to vote for the election of members of the House of Representatives”.

Similarly, section 4 of the Referendum (Machinery Provisions) Act 1984 (Cth) states that “an elector is entitled to vote at a referendum where, if the referendum were an election, the elector would be entitled to vote at the election”.

Eligibility to vote for federal elections is outlined under section 93 of the Commonwealth Electoral Act 1918 (Cth).

Individuals are entitled to enrol to vote in a Federal election if  they are Australian citizens over the age of 18 years old.

Enrolment is compulsory, unless you are a person of no fixed address who was not already enrolled.

Some Australian citizens may be ineligible to vote in the referendum, including:

• People who have been deemed to be of unsound mind due to a mental health impairment or cognitive impairment, meaning they are  incapable of understanding the reason for voting and its significance to the democratic process;
• Prison inmates who serving a sentence of five years or longer; and
• People who have been convicted of treason.

Do you have to vote in the referendum?

Under section 245 of the Electoral Act 1918 (Cth), anyone who fails to vote in a Federal election or referendum and does not have a ‘valid and sufficient reason’ for that failure will face a fine of $20 (sent as a penalty notice)

A penalty notice will not be sent if the Electoral Commission is satisfied that the potential voter:

• Is dead; or
• Was absent from Australia on polling day; or
• Was ineligible to vote at the election; or
• Had a valid and sufficient reason for failing to vote.

What constitutes a ‘valid and sufficient reason’ is not defined by the Act, and will be determined by the Australian Electoral Commission on a case-by-case basis.

However, it is important to be aware that providing false or misleading material to the Commission constitutes an offence under section 245(15C).

At the time of writing, this offence carries a maximum penalty of a fine of $192.31.

If a fine for failing to vote is left unpaid, it can attract further fees and penalties.

The eligible person may  also be issued with a Court Attendance Notice (CAN), meaning he or she will have to attend court and come before a magistrate.

If the matter goes to court, the person who failed to vote may be prosecuted for an offence of failing to vote under section 245(15) of the Act.

This offence currently also carries a maximum penalty of a fine of $192.31.

Failing to Vote Specific to NSW

The NSW Electoral Commission, which acts similarly to the Australian Electoral Commission, but only on the state level in New South Wales, oversees the enforcement of the voting rules. 

In addition to a failure to vote in a referendum in Australia, New South Wales has its penalties for not voting. The fine for not voting in NSW holds a maximum penalty of $55, with the failure to vote in other Australian states only $20. The Electoral Commission must issue a penalty notice within three months from election day. The charge then has 28 days to respond to the notice with why they didn’t vote or to pay the fine. 

If a person does not pay the initial $55 fine within 28 days in NSW, another $65 will be issued. The charged may see an additional $225 in penalties if the secondary fine is not paid, in addition to court fees and a mandatory court date. 

Luckily for those who live in NSW, it is easy to pay the fine for not voting:

1. Go to the NSW Electoral Commission site
2. Click on ‘Pay your fine’
3. Enter the associated information
4. Log in and follow the prompts 

In New South Wales, the Electoral Act chooses what constitutes a ‘valid reason’ for not voting. Valid excuses include being ill, being hospitalised, experiencing natural disasters, being involved in an accident on the way to the polls, detouring to save a life on the way to the polls, childbirth, disabilities, and concerns for personal safety.

Section 6 also details further acceptable reasons in New South Wales, such as work obligations, being overseas, and religious beliefs that prevent visiting a voting booth. Despite these allowances, modernised voting methods, such as online voting, pre-poll voting, absentee ballots, and mail-in voting, attempt to make voting easier for everyone.