Commonwealth Director of Public Prosecutions v Easton

1. [1]

   It is compulsory for all eligible Australian citizens to vote in federal elections. Failure to do so without a “valid and sufficient reason” is an offence under s 245(15) of the Commonwealth Electoral Act 1918 (Cth) (“the Act”). The issue raised by this appeal is whether adherence by an elector to a moral but non-religious belief system that requires him not to vote is capable, as a matter of law, of constituting a “valid and sufficient reason” for failing to do so.

2. [2]

   On 26 September 2017, Magistrate Heilpern dismissed a charge brought by the Commonwealth Director of Public Prosecutions (“CDPP”) against Adam Easton under s 245(15) of the Act for failing to vote at the federal election on 2 July 2016 and delivered his written reasons to the parties. On 20 December 2017, a revised version of that judgment was published on the NSW Caselaw website: R v Adam Easton [2017] NSWLC 19 (“R v Easton”).

3. [3]

   By summons filed on 25 January 2018, the CDPP appeals against the decision of Magistrate Heilpern pursuant to s 56(1) of the Crimes (Appeal and Review) Act 2001 (NSW) (“the CAR Act”). In addition, the CDPP seeks an order that the time for instituting the appeal be extended until the date of the filing of the summons.

4. [4]

   The grounds of appeal are as follows:

   1. (1)

      The learned Magistrate erred in finding that a conscientious objection, that is, a devout (but non-religious) objection to voting constitutes an exception pursuant to subsection 245(14) of the Act;

   2. (2)

      The learned Magistrate erred in not reading subsection 245(14) together with subsection 245(15B) of the Act when interpreting and applying subsection 245(14);

   3. (3)

      The learned Magistrate erred in finding that a conscientious objection, that is, a devout (but non-religious) objection to voting, is a valid and sufficient reason not to vote contrary to well settled authority interpreting and applying the term “valid and sufficient reason” in the Act;

   4. (4)

      The learned Magistrate erred in directing himself that the respondent had discharged the evidential burden to raise a real possibility that the respondent had a valid and sufficient reason not to vote; and

   5. (5)

      The learned Magistrate erred in finding that the inconsistencies between the respondent’s written response to the Electoral Commissioner and his sworn evidence were “minor and of little consequence” when considering whether he had a valid and sufficient reason for not voting.

5. [5]

   Ground 5 was not pressed at the hearing of the appeal. The remaining four grounds all turn on the proper construction of s 245(14) of the Act. It was not suggested by the defendant that any of these four grounds did not involve a question of law alone within the meaning of s 56(1) of the CAR Act. Rather, it was contended that time for bringing the appeal ought not be extended and that no error is disclosed in the Magistrate’s reasons.

6. [6]

   Given the nature of the grounds relied upon, a convenient starting point is to have regard to the terms of s 245 of the Act. It is a lengthy section but I consider it necessary to extract it in full. It is in these terms:

7. [7]

   This matter came on for hearing in the Lismore Local Court before Magistrate Heilpern on 24 August 2017. A solicitor from the CDPP appeared for the prosecution and Mr Easton appeared in person to answer the charge that he failed to vote at the 2 July 2016 election without having a “valid and sufficient reason”. The facts before the Magistrate were not disputed and are contained in the Court Attendance Notice relied upon by the CDPP. I have taken the following facts from that document.

8. [8]

   After the elector failed to vote at the relevant election, on 19 September 2016, the Divisional Returning Officer (DRO) sent a penalty notice by post to the defendant at his last known address pursuant to s 245(3) of the Act. That notice complied with s 245(5) of the Act. The elector was required to respond to the penalty notice by 17 October 2016. No reply was ever received.

9. [9]

   A second penalty notice was sent (pursuant to s 245(6) of the Act) on 31 October 2016. It also complied with the form requirements (this time under s 245(6A) of the Act). The elector was required to respond to the second penalty notice by 25 November 2016.

10. [10]

    On 11 November 2016, a reply was received from Mr Easton in the form of a letter. A copy of this letter was tendered before the Magistrate. It was in the following terms:

11. [11]

    The DRO was not satisfied that Mr Easton’s failure to vote was for a valid and sufficient reason. A penalty notice was then sent to Mr Easton under s 245(9) of the Act fining him $20 for failing to vote. The prescribed period for responding to that notice was 30 November 2016. No payment was made by 30 November 2016 and thus the matter came before the Court for a hearing.

12. [12]

    When calling through the Court list on the day of the hearing, his Honour sought an indication from Mr Easton as to the nature of his defence. Mr Easton replied in these terms:

13. [13]

    When the matter came on for hearing the CDPP tendered the Court Attendance Notice and the Crown case closed. Mr Easton was then affirmed and gave evidence. He read the following statement onto the record:

14. [14]

    Mr Easton was then briefly cross-examined. He was asked whether he had ever previously made any mention of the comments he now made in Court. In response, Mr Easton apologised to the AEC and the Court for being “quite terse and probably a bit flippant” in his initial response and hoped he had now provided clarification around those issues. He was shown a copy of the letter extracted above at [10] and agreed that he had made no mention in that letter of any religious viewpoints. When it was put to him that this was the first time he had raised these issues he provided the following answer:

15. [15]

    Mr Easton was not asked any further questions.

16. [16]

    In closing submissions, the CDPP observed that Mr Easton’s first response to the AEC specifically relied upon having no preference as between the candidates. In response, his Honour noted that she had not cross-examined Mr Easton that his honestly held belief in the witness box was not true. Thus, his Honour observed, there was uncontested evidence before him that Mr Easton does in fact have this set of moral values.

17. [17]

    After a short adjournment to permit the CDPP to obtain any authorities relevant to s 245(14) of the Act, his Honour was provided with copies of Faderson v Bridger (1971) 126 CLR 271; [1971] HCA 46 (“Faderson v Bridger”, Blakeney v Coates (unreported, Supreme Court of Western Australia, 22 September 1982) (“Blakeney v Coates”) and Douglass v Ninnes (1976) 14 SASR 377 (“Douglass v Ninnes”). The CDPP also relied upon the dictionary definition of religion as being “a belief in a superhuman controlling power.” It was noted by the CDPP that Mr Easton had not advanced any evidence of such a belief system nor was there any connection between the definition of religion and his failure to vote. Rather, it was submitted, he had a fundamental moral objection to voting and this did not meet the criteria for being a valid and sufficient reason not to vote.

18. [18]

    His Honour reserved his decision.

19. [19]

    On 26 September 2017, his Honour dismissed the charge and delivered his written reasons to the parties. After setting out the relevant parts of s 245 of the Act he also extracted s 13.3 of the Schedule to the Criminal Code Act 1995 (Cth) (“the Commonwealth Criminal Code”) concerning the evidential proof for any defence under the Code. His Honour then noted that “somewhat surprisingly” there was no reported decision in relation to s 245(14) of the Act.

20. [20]

    His Honour then went on to describe the prosecution and defence cases. After referring to certain aspects of the defendant’s evidence (which I have extracted above at [13]-[14]) his Honour observed at [12]:

21. [21]

    His Honour went on to note at [14] and [16]:

22. [22]

    His Honour then examined the authorities at [18]-[27]: Faderson v Bridger, Blakeney v Coates and Douglass v Ninnes. In doing so his Honour observed that these authorities were determined prior to the amendments introducing s 245(14) of the Act. His Honour also referred to the decisions in Judd v Mckeon (1926) 38 CLR 380; [1926] HCA 33 (“Judd v McKeon”), Krosch v Springell; ex parte Krosch [1974] Qd R 107 (“Krosch v Springell”) and O’Brien v Warden (1981) 37 ACTR 13 (“O’Brien v Warden”). His Honour further stated that the decision in Blakeney v Coates was “irrelevant” as there was no religious exemption at that time in Western Australia.

23. [23]

    His Honour went on to consider the onus of proof (at [28]-[32]) and noted that the defendant must first point to evidence which suggests a reasonable possibility that there is a valid and sufficient reason for not voting and if this evidential burden is established then the prosecution must disprove that reason beyond reasonable doubt.

24. [24]

    At [33] his Honour referred to the High Court decision of Faderson v Bridger and the other decisions which noted that no offence is committed by voting informally. He then observed the following:

25. [25]

    In support of this conclusion his Honour observed that s 85 of the Electoral Act 1985 (SA) has expressly stated that an informal vote is not a breach of the duty to vote.

26. [26]

    His Honour commenced his consideration at [36]. His Honour noted that s 245(14) of the Act is not exclusive. His Honour was satisfied that “not only those who hold religious objections are covered by ‘the legislation’” (in context, his Honour appears to be referring to s 245(14) here, and not s 245(15B)). His Honour went on to note that “the provision” (again, presumably s 245(14)) “is not limited to those who have some illness or misadventure that interrupts their intention to vote.” His Honour then stated:

27. [27]

    His Honour went on to note that the definition of “religion” in constitutional law is “established and broad” and referred to the High Court decision in Church of The New Faith v Commissioner of Pay-Roll Tax (Victoria) (1983) 154 CLR 120; [1983] HCA 40 (“Church of The New Faith”) where Mason and Brennan JJ observed:

28. [28]

    His Honour also had regard (at [38]) to the observations of Wilson and Deane JJ in Church of The New Faith which he summarised in the following way: “a belief in the supernatural; a belief in ideas relating to ‘man’s nature and place in the universe’; the adherence to particular standards, codes of conduct or practices by those who hold the ideas; the existence of an identifiable group of believers, even if not a formal organisation; and the opinion of the believers that what they believe in constitutes a religion.” His Honour then referred to the definition of religion in the Macquarie Dictionary (3rd ed, at 979) noting that the first of the five definitions therein were “a little beyond me”. That first definition was extracted as follows:

29. [29]

    His Honour then stated his conclusion in the last three paragraphs of his reasons ([40]-[42]) which are extracted in full as follows:

30. [30]

    The Magistrate delivered his decision and handed down written reasons to the parties on 26 September 2017. Section 56(2) of the CAR Act provides that an appeal under Part 5 of that Act must be made within such period after the date of the conviction or sentence as may be prescribed by the rules of court. Part 51B of the Supreme Court Rules 1970 (NSW) provides for the relevant procedure concerning appeals brought under Part 5 of the CAR Act. Part 51B, r 6(1) relevantly provides that, subject to sub-rules (1A) and (2), such an appeal must be instituted within 28 days after the material date, being the date of the decision. Rule 6(2)(a) provides that the time fixed by r 6(1) may be extended by the Court at any time. The last day for lodging the appeal was 24 October 2017. The CDPP thus seeks an extension of time within which to institute this appeal under Part 51B, r 6(2)(a).

31. [31]

    There was no issue taken on behalf of the defendant as to the relevant principles guiding an application to extend the period for filing an appeal. The CDPP noted the principles distilled by Kirby J in Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27. In that decision his Honour observed that it is impossible to lay down fixed and binding rules regarding the exercise of such a discretion but identified four factors which have been recognised as relevant to such a determination. By reference to the decision of the English Court of Appeal in Palata Investments Ltd v Sinfeild Ltd [1985] 2 All ER 517; [1985] 1 WLR 942, Kirby J identified that the factors to have regard to are: first, the length of the delay; second, the reasons for the delay; third, whether there is an arguable case; and fourth, the extent of any prejudice to the defendant. Chief Justice Brennan and McHugh J also noted in Jackamarra v Krakouer that there is not an exhaustive list of relevant factors.

32. [32]

    Justice Bellew recently applied these principles in relation to this Court’s consideration of r 6(2)(a) of the Supreme Court Rules in Director of Public Prosecution (NSW) v Hughes [2017] NSWSC 492 (at [52]-[53]).

33. [33]

    The CDPP relied upon three affidavits to explain the delay in bringing the appeal, being those of Jana Dev Culibao (solicitor with carriage of the matter) sworn on 24 January 2018, Helen Armstrong (Ms Culibao’s supervisor) sworn on 24 January 2018 and Liam Peter Cavell (another CDPP solicitor) sworn on 24 January 2018. These affidavits annexed file notes, emails and a number of newspaper and online articles.

34. [34]

    As was noted by senior counsel for Mr Easton, there was no direct evidence from the decision-maker as to why no appeal was lodged at the time. Despite this, it is tolerably clear from the evidence before the Court that the question of an appeal was discussed at the time within the CDPP and a decision was made not to appeal, inter alia, on the basis that it was a Local Court decision and had no precedential value. Due to an oversight, the usual practice of providing a copy of the judgment to the AEC and consulting with it in relation to the question of an appeal was not followed in this matter. This oversight was explained, at least in part, by the relevant solicitor at the CDPP having a combination of a serious illness in the family, having to travel to Canberra for work and being transferred to a different position within the CDPP. The file was closed on 19 October 2017.

35. [35]

    The evidence before me discloses that, after the Magistrate’s decision was published on NSW Caselaw on 20 December 2017, a number of articles began to appear online and elsewhere both reporting and commenting on the judgment. There was subsequently contact between the AEC and the CDPP as to whether there was now a public interest in the decision being appealed.

36. [36]

    Some examples of the reportage of the decision include an article with a sub-heading, “An extraordinary decision has opened up the gates for voluntary voting to be made legal.” The article went on in these terms: “[a]n agnostic, Eastern [sic] convinced the magistrate he didn’t believe God [sic], but in freedom which formed the basis of his moral framework.” Another article, being the editorial in a leading Victorian newspaper, was critical of the decision and was headed “There’s no religious freedom in refusing to vote”. The editorial includes comments such as “Devotion to freedom, however heartfelt, is not a religion” and noted that it is perfectly legal to vote informally. Another article headed “‘Freedom’: How a Sydney man won in court after failing to vote” noted that Mr Easton “relied on a section of the Commonwealth Electoral Act that states a person who believes it’s his or her religious duty to abstain from voting has a valid reason not to vote. The self-described agnostic said he believed in ‘Freedom’ - an ideology that forms the basis of his view of life and his moral framework.”

37. [37]

    The defendant relied upon his affidavit affirmed 2 May 2018. He explained that he had understood that there was a 28-day limit on any appeal and had been of the view by late October 2017 that there would be no appeal in this matter. He first learned that there was an intention to appeal the decision in late January 2018. He noted that he was advised that his reasonable costs in these proceedings would be paid by the CDPP, but still suffered the stress of having to revisit the Court case and was concerned that he would still be out of pocket for some of the legal costs. He found reading the material on the appeal stressful. He runs a small business and had spent time worrying about this matter to the detriment of his paid work.

38. [38]

    Ms Abraham QC, on behalf of the CDPP, submitted that the length of the delay, being approximately three months, was neither inconsequential nor substantial and included the Christmas and New Year holiday period. As for the reason for the delay, Ms Abraham noted that although a decision was initially made not to appeal the decision, the circumstances changed after the revised decision was published on the internet. This prompted a number of media reports which described the decision as, inter alia, “spectacularly innovative”, “ground-breaking” and opined that it “may mean an end to compulsory voting in Australian Federal elections.”

39. [39]

    It was noted that prior to the publication of the decision in R v Easton, a different Magistrate had come to a contrary view in the decision of R v Carr [2017] NSWLC 21. Although that Magistrate had formed the view that the decision in CDPP v Easton was “plainly or clearly wrong”, it had not received the same publicity. Thus, it was submitted, the fact of the later decision was incapable of remedying the mischief in R v Easton as it also lacked the force of precedent.

40. [40]

    It was submitted that there was an arguable case for the reasons advanced on the appeal. Put simply, it was submitted that the Magistrate’s conclusions are inconsistent with the proper construction of the relevant statutory provisions as well is being inconsistent with authority.

41. [41]

    Finally, it was submitted that the potential prejudice to the defendant is ameliorated by the CDPP’s offer to pay for the reasonable legal costs of Mr Easton in this matter. That offer has been accepted and Mr Easton has briefed senior counsel. It was also submitted that any prejudice suffered by the respondent must be weighed against the significant public interest in ensuring that this matter be decided in accordance with law.

42. [42]

    Ms Bashir SC appeared on behalf of Mr Easton. She submitted that the decision has no precedential value nor does it have any national impact. It was further submitted that the publication of the decision in the press is no reason for a grant of leave on a Crown appeal of this nature. Furthermore, it was put that there was no acceptable explanation of how the time default occurred, that there was no error or question of law arising in this matter and that there was no arguable case. Finally, Ms Bashir relied upon the prejudice, stress and anxiety as identified in Mr Easton’s affidavit and submitted that the offer to pay reasonable legal costs did not have the effect of alleviating stress and anxiety for him. Reliance was also placed on the fact that this is a Crown appeal from the dismissal of a summary prosecution that occurred in September 2017.

43. [43]

    I am satisfied that it is the interests of justice that I exercise the Court’s discretion to extend the time to bring the appeal in this matter. Dealing with the relevant matters for consideration I make the following findings.

44. [44]

    First, as for the length of the delay, I accept that three months could not be considered inconsequential, particularly for Mr Easton whose affidavit evidence I accept. It is this delay in appealing which has contributed to the stress and anxiety for Mr Easton. However, this delay must be weighed against the public interest in the appeal being brought. Furthermore, the delay is not so significant that any prejudice of a forensic nature could be identified.

45. [45]

    Second, as far as the reason for the delay, I note that the circumstances in this case are somewhat unusual. It is to be accepted that the decision has no precedential value but the effect of it must be considered in the context of the belated publication of the decision on the internet on 20 December 2017 and the reportage and commentary on it in the period leading up to and following Christmas 2017.

46. [46]

    The fact that it is somewhat unusual for decisions of the Local Court to be published on the NSW Caselaw website is evidenced by the fact that this decision was only the nineteenth Local Court decision published in the period from 1 January 2017 to 20 December 2017 throughout the State of NSW.

47. [47]

    I am satisfied that the belated publication of this decision significantly changed the relevant circumstances and in particular, matters relevant to the discretionary decision on the part of the CDPP as to whether to appeal or not. Of particular significance is the fact that some of the reportage before me did not accurately report on the decision, particularly the suggestion that the decision signalled the end of compulsory voting in Australia. Although it is to be accepted that any person could access NSW Caselaw and read the actual decision, I am not satisfied that it would be immediately apparent to any non-legally qualified person that the decision has no precedential value. Certainly, it was reported in a manner to suggest that it did.

48. [48]

    It seems to me that a person seeking to make an internet enquiry about compulsory voting would be more likely to come across a newspaper or opinion piece rather than be directed to the NSW Caselaw website. If a person was to read one or more of these articles, he or she might form the view that one can abstain from voting on the basis of a conscientious objection. There is nothing to suggest that the CDPP could have envisaged that this decision from the Lismore Local Court would subsequently be published so widely.

49. [49]

    For these reasons, I am satisfied that “the public interest” changed when the reportage of the decision created a situation which had the capacity to mislead voters as to their obligations to vote. It is not the fact of the publication per se. Rather, it is the difficulty with the editorialising regarding the legal effect of the decision.

50. [50]

    Third, as to whether there is an arguable case, for reasons I have set out below, I am satisfied that this is so.

51. [51]

    Fourth, I have had regard to the prejudice to Mr Easton. The fact is that his reasonable costs have been paid by the CDPP and experienced senior counsel has been briefed in this matter. For the purposes of determining whether any prejudice to Mr Easton is such that it would militate against the exercise of the Court’s discretion to extend time in this matter, I do not consider that this question is of any particular weight.

52. [52]

    In addition to these factors, I have also had regard to the fact that this is a prosecution appeal against an acquittal. However, the CAR Act clearly provides for the prosecution to appeal against decisions of the Local Court on a question of law. This is not a de novo appeal. In the event that the CDPP is successful, s 59(2)(a) of the CAR Act provides that this Court can set aside the order of the Magistrate and make any such order as the Court considers just, but it cannot consider the merits of the matter and convict Mr Easton.

53. [53]

    I have also had regard to the submission advanced on behalf of Mr Easton that the conduct of the prosecutor before the Magistrate was such that the CDPP should not be permitted to run its argument again. The version of the judgment delivered by his Honour on 26 September 2017 included a paragraph critical of the CDPP solicitor who appeared before his Honour at the hearing for not being prepared to argue the meaning of s 245(14) of the Act. That paragraph was removed from the online version of the judgment.

54. [54]

    I am satisfied that any fair reading of the transcript of the hearing in the Local Court discloses that the solicitor appearing on behalf of the CDPP was taken by surprise by Mr Easton’s reliance on s 245(14) of the Act, which was raised for the first time at the hearing. Although, given the nature of this appeal, this Court is bound by the Magistrate’s factual findings, his Honour at no stage made any finding that Mr Easton had raised s 245(14) in its terms in any of the correspondence with the AEC. I am satisfied that any criticism of the prosecutor for not being armed with decisions concerning s 245(14) of the Act is unwarranted. As this appeal shows, there has never been any judicial consideration of the provision in any event. I do not consider that the criticism of the CDPP solicitor in this regard militates in favour of leave to extend time being refused. I otherwise accept that I am bound by the Magistrate’s finding that there was no significant change in Mr Easton’s explanation for not voting given that the CDPP abandoned ground 5 at the hearing.

55. [55]

    For these reasons, I am satisfied that an extension of time should be granted to bring this appeal.

The Appeal

1. [56]

   I have already set out the four grounds of appeal above at [4]. I will now turn to the submissions of the parties.

2. [57]

   Ms Abraham accepted that there was overlap in the grounds of appeal and consequently dealt with some of them together. Grounds 1 to 3 concerned error in the construction of the relevant provisions and the relationship between them.

3. [58]

   It was submitted that the crux of the Magistrate’s decision is that a conscientious but non-religious objection to voting is capable of constituting a “valid and sufficient” reason for failing to vote. The Magistrate erred in finding that Mr Easton’s evidence satisfied the evidential burden because the authorities make it clear that a moral objection, such as that outlined by Mr Easton, could not possibly constitute a valid and sufficient reason as a matter of law. In support of this, Ms Abraham relied upon the decision of the High Court in Judd v McKeon. She also identified a number of decisions which have considered circumstances which do not constitute “valid and sufficient” reasons for failing to vote. I consider these decisions below at [75]-[95].

4. [59]

   As for s 245(14) of the Act and the explicit reference to a situation whereby “an elector believes it to be part of his or her religious duty to abstain from voting” constituting a valid and sufficient reason for not voting, Ms Abraham relied upon the decision in Krosch v Springell where a similar provision was held to do no more than bring into the possible meanings of “valid and sufficient” one specific reason: religious duty.

5. [60]

   It was submitted that the text of s 245(14) does not support a construction that allows for a conscientious objection to voting; the words “without limiting the circumstances that may constitute a valid and sufficient reason for not voting” do not broaden what constitutes “religious duty” beyond what the authorities have decided. Further, s 245(14) must be read with subs 245(15B): the test remains whether the elector has satisfied the Court that he or she has a valid and sufficient reason for failing to vote. The Magistrate erred in making no reference to s 245(15B) at all.

6. [61]

   As for the proper construction of s 245(14) of the Act, it was submitted that Mr Easton’s reliance on s 15AD of the Acts Interpretation Act 1901 (Cth) was misconceived. It was further submitted that the definitions of “religion” in the case law are clearly the reason why the Magistrate did not find Mr Easton’s objection to be religious. Even if the legislation was to be construed as promoting the free exercise of religion, it still has to be a recognised religion.

7. [62]

   On behalf of Mr Easton it was submitted that the CDPP had oversimplified the conclusion of the Magistrate. It was argued that the crux of the decision is not that s 245(14) permits a conscientious non-religious objection to voting. Rather, the true basis for the decision was a finding that Mr Easton had discharged the relevant evidential burden. The Magistrate’s reference to the term “conscientious objector” in his Honour’s conclusion was an attempt to summarise the lengthy evidence given by Mr Easton. The Magistrate simply accepted as true and honest Mr Easton’s evidence as to his beliefs and faith, thus the reference by the Magistrate to the concept of a form of conscientious objection at [41] should be read in the context of his Honour’s finding that the objection was based on an honestly held belief or moral code.

8. [63]

   The Magistrate was satisfied that the evidential burden for the defendant to raise, which was slender, had been satisfied. The CDPP did not adduce any evidence to the contrary to that raised by the defendant thus no error is shown in the Magistrate’s decision. It was emphasised that the resolution of this appeal must be based on the Magistrate’s factual findings.

9. [64]

   It was submitted that it was quite wrong to suggest that s 245(14) of the Act did not permit any form of conscientious objection to voting as the religious exception was a form of conscientious objection. The words “without limiting” in s 245(14) of the Act were said to broaden what might be meant by a “valid and sufficient” reason. A religious duty exception is a conscientious objection thus there is at the very least a specific form of conscientious objection allowed as a valid and sufficient reason, being a conscientious objection on religious grounds. Reliance was placed upon s 15AD(2) of the Acts Interpretation Act in support of this submission.

10. [65]

    It was submitted that, to the extent that there is any ambiguity in s 245(14) of the Act as to what the phrase “believes it to be part of his or her religious duty” means, the Court could have regard to the extrinsic materials in construing the provision, namely, the Joint Select Committee on Electoral Reform Report (relevantly extracted below at [110]). It was submitted that the inclusion of what an elector “believes” is a part of their religious duty in s 245(14) evidences the legislature’s intention to include a “remarkably subjective” reason in the provision. Mr Easton’s explanation was accepted by the Magistrate which was an express statement of his faith belief which was akin to a religious belief.

11. [66]

    It was further submitted that, as a matter of statutory construction, the enactment of s 245(14) has endorsed Higgins J’s dissenting judgment in Judd v McKeon. The common law had previously limited the scope of the excuse to one which might be objectively tested and was not based on a person’s belief. The amendment has had the effect of extending the operation of the provision, not so far as to overrule Judd v McKeon but so as to change the meaning of what is a “valid and sufficient” reason. That is, mental states can now be included.

12. [67]

    Although it was accepted that Judd v McKeon is the foundational High Court authority construing the then operable provision, it was noted that Mr Judd had not raised any religious issue. Justice Higgins in dissent noted that limiting the reading of “valid and sufficient reasons” as being limited to a physical inability was inconsistent with the enactment read as a whole.

13. [68]

    As for the decision in Krosch v Springell, it was submitted that it is distinguishable because it concerns a different legislative provision in different terms.

14. [69]

    It was submitted that if the very notion of religion protected by s 116 of the Australian Constitution is to encompass minority views, then this is a further basis to regard the protection afforded by s 245(14) as extending beyond adherence to a mainstream religion. It was accepted that there must be some limit to the scope of such belief but that the beliefs of Mr Easton are properly regarded as religious in character rather than political. Mr Easton’s reasoning was not along the lines of "I don't want to vote". Rather, the Magistrate held that Mr Easton’s objection to voting came from a conscious agnostic well developed moral faith that meant he believed he must abstain from voting, in the same way that a religious person might feel that her or she has sinned. By way of analogy in Church of The New Faith (at 135), there is reference to feeling constraint to or abstain from doing something because of the faith; not any kind of conscientious objection will do.

15. [70]

    Finally, it was submitted that dismissing the appeal would not open the floodgates because each elector would still have to write to the AEC, and claim a belief and then it would be a matter as to whether it was accepted as a valid and sufficient reason for failing to vote.

Consideration

1. [71]

   The predecessor to s 245 of the Act, s 128A, was introduced in 1924 and marked the beginning of compulsory voting in Australia. Section 128A(12)(a) provided that every elector who failed to “vote at an election without a valid and sufficient reason for such failure” was guilty of an offence. The provision was enacted after a poor voter turnout at the 1922 federal election. Section 128A(12)(a) is a combination of what is now found in s 245(15) & (15B) of the Act. Section 245(15) provides that it is an offence if an elector fails to vote at an election and s 245(15B) provides that subsection (15) does not apply if the elector has a “valid and sufficient reason” for the failure. The relevant statutory language in these provisions has remained the same since compulsory voting was first introduced. These provisions and those in many of the equivalent State and Territory Acts have been judicially considered on a number of occasions since that time.

2. [72]

   Section 245(14) of the Act was not introduced until 1990. It has never been judicially considered. This appeal turns on whether the enactment of s 245(14) introduced for the first time a form of conscientious objection into the meaning of what amounts to a “valid and sufficient” reason for failing to vote under the Act. The crux of the complaint made by the CDPP is that it was not open to the Magistrate, as a matter of law, to find that conscientious objection in the form of a devout (but non-religious) objection to voting is capable of constituting a “valid and sufficient” reason for failing to vote under s 245(15B) of the Act having regard to s 245(14).

3. [73]

   It is to be accepted that, in accordance with s 13(3) of the Commonwealth Criminal Code, the evidentiary threshold for a defendant such as Mr Easton to meet before the onus shifts to the prosecution to rebut the defence beyond reasonable doubt is simply the “adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.” Despite this, the question of whether an evidential burden has been discharged is one of law (s 13(5)) and in the present matter the reason advanced by Mr Easton still has to be capable of amounting to such a reason.

4. [74]

   I propose to address the grounds of appeal together. First, I will consider the relevant principles derived from the decisions in which the phrase “valid and sufficient reason” has been judicially considered prior to the enactment of s 245(14) of the Act. Second, I will determine the basis for his Honour’s conclusion, given that the parties’ submissions advanced different interpretations of the ultimate reasoning of his Honour. Third, I will determine whether one or more of the grounds of appeal have been established by having regard to the proper construction of the relevant subsections in s 245, including sub-s (14).

5. [75]

   The High Court first considered the meaning of what could be a “valid and sufficient reason” for failing to vote in Judd v McKeon. The elector in that matter was convicted of failing to vote in a NSW election of senators. The reason he provided for not voting was that he was a member of the Socialist Labor Party which stood for ending capitalism and its members are prohibited from voting for supporters of capitalism. The elector argued that political parties perpetuate capitalism, exploit the working class and create war and unemployment. The elector’s appeal was considered by the High Court who dismissed the appeal with a five to one majority.

6. [76]

   Knox CJ, Gavan, Duffy and Starke JJ held that the appellant’s reasons for not voting amounted to “no more than an expression of an objection to the social order of the community in which he lives” and that such an objection is not a valid and sufficient reason for refusing to vote (at 384). Similarly, Isaacs J observed at 386:

7. [77]

   Issacs J went on at 386 to observe:

8. [78]

   His Honour then provided some examples such as physical obstruction, sickness, natural events, accident, or a competing public duty (eg if a voter had to stop to help someone, stop crime or assist in some great disaster on the way to the polling booth) (at 386-7). His Honour noted that these observations were not exhaustive but illustrate that the reason can be broader than simple physical inability to record a vote (at 387). His Honour also noted that the sufficiency of reasons is a question of fact dependent on the circumstances of the occasion (at 387). Similarly, Rich J held that voting is a duty and that the reason for not discharging this duty “must be valid – sound in law and fact; and, if valid, must be sufficient – substantial and satisfactory in the absence of countervailing answer” (at 390).

9. [79]

   The only member of the Court in Judd v McKeon to dissent was Higgins J. His Honour was of the view that the words “valid and sufficient reason” are to be construed liberally and on grounds that are reasonable, whatever their political or social outlook. His Honour found that the Courts are not given any right to say what political or social opinions are to be treated as reasonable (at 390). Nor did his Honour agree that the “valid and sufficient reasons” contemplated by Parliament are limited to a failure to vote by an inability to do the physical act through ill-health or floods and so forth. His Honour could not find anything in the Act to justify the limitation of the words “valid and sufficient reasons” (at 387).

10. [80]

    In Lubcke v Little [1970] VR 807 (“Lubcke v Little”), Crockett J considered what was a “valid and sufficient reason” not to vote under s 128A of the Act. The elector had given evidence at the hearing that he had no preference as to the candidates and for that reason he had no vote to register and accordingly he had a valid and sufficient reason for failing to vote. Crockett J held that the elector did not have a valid and sufficient reason for failing to vote. His Honour noted at 810:

11. [81]

    His Honour went on to observe that the elector could not rely upon Higgins J’s dissent in Judd v McKeon and that the reasons given by Isaacs and Rich JJ show that non-approval of all candidates is an insufficient excuse (at 811). His Honour noted that the elector is not being asked about his likes or dislikes. Rather, he is being told that he must choose between options. As his Honour put it (at 812):

12. [82]

    Crockett J noted with respect to informal voting (at 811):

13. [83]

    In Faderson v Bridger the elector failed to vote because he had no preference. He gave evidence that if he had been forced to state his preference he would have been telling a lie. The Magistrate held that the fact that an elector has no preference as between the candidates offering themselves for election is not a valid and sufficient reason. The elector was convicted and appealed. The High Court (Barwick CJ, with whom McTeirnan and Owen JJ agreed), dismissed the appeal. Barwick CJ observed at 273 that “[t]o face the voter with a list of names of persons, none of whom he may like or really want to represent him and ask him to indicate a preference amongst them does not present him with a task that he cannot perform.” His Honour went on to observe at 274 that the voter’s argument that he was under no duty to vote because no candidate had met his approval is what Isaacs J referred to in Judd v McKeon as an “open challenge to the very essence of the enactment.”

14. [84]

    On the question of informal voting, Barwick CJ observed (at 272):

15. [85]

    Douglass v Ninnes was a decision of the South Australian Supreme Court in which Hogarth J dismissed an appeal from a person who was convicted of failing to vote without a valid and sufficient reason contrary to s 118a of the Electoral Act 1929 (SA). His reason for not voting was partly on religious grounds. He told the Court that he believed that “Christ is the truth” and that political systems conceived by men are destructive and opposed to truth and freedom. He objected to compulsory voting as it serves the interests of political parties and big business. The reason for not voting also included an honest and sincere belief that the United Nations Charter apparently adopted by Australia dictated that he should not have to vote if he did not have a party with a policy for which he felt he could vote within the dictates of his own conscience.

16. [86]

    Hogarth J held that the elector’s critical view of political systems did not necessarily lead to the conclusion that he would regard it as morally wrong to cast a vote. His Honour referred to the decisions in Judd v McKeon, Lubcke v Little and Faderson v Bridger and observed that the elector’s objection to compulsion was simply an objection to being obliged to obey the law laid down by parliament, which was not a valid or sufficient excuse for not observing it (at 383). His Honour went on to hold that that the obligation to vote was satisfied by the casting of an informal vote and that the elector had not established that he had any conscientious objection to drawing his voting papers and casting an informal vote. On the question of informal voting his Honour noted that the verb “voted” cannot mean to cast a formal and valid vote because of the provisions for secrecy of the ballot: no person has any means of knowing which electors have cast a formal or informal vote (at 379). It was noted that the elector had not given any evidence to suggest he has any conscientious objection to casting an informal vote (383).

17. [87]

    In O’Brien v Warden Blackburn CJ considered an appeal from the decision of a Magistrate dismissing a charge against s 128A(12) of the Act of failing to vote an election without a valid and sufficient reason. The respondent had returned from an overseas trip shortly before the election and did not know anything about the candidates. Nor did he have enough time to find out sufficient information to enable him to decide on an order of preference. On appeal it was argued that the circumstances could be distinguished from Judd v McKeon, Lubcke v Little and Faderson v Bridger because in those cases the elector’s absence of preference was not imposed upon them by circumstances over which they had no control.

18. [88]

    Blackburn CJ upheld the appeal holding that having no preference to express is not a rational excuse for failing to perform it, and therefore not a “valid and sufficient reason” (at 17). His Honour referred the decision of Crockett J in Lubcke v Little and Barwick CJ in Faderson v Bridger on the issue of informal voting. His Honour said that it may at least be arguable that marking the ballot paper in an informal way is not what the Act requires and that informal voting could be considered a failure to discharge the obligation to vote (at 16). However, his Honour acknowledged that it would be impossible to adduce direct evidence of this because of the provisions for the secrecy of the ballot.

19. [89]

    Blakeney v Coates is a decision of the Western Australian Court of Appeal. It concerned a prosecution for failure to vote in circumstances where there was no religious exception for failing to vote in the statute at that time. The Magistrate found that a religious ground was not within the exceptions in s 156 of the Electoral Act 1907 (WA). Section 156 provided that:

20. [90]

    The Court of Appeal (Wickham, Wallace and Olney JJ) dismissed the appeal. The elector’s reasons for not voting included that he was a subject of God’s kingdom and for that reason his conscience would not allow him to vote for another political party because that would be hypocritical. He described himself as a conscientious objector on religious grounds. Wickham J considered the question of whether the Magistrate had erred in concluding that a religious ground was not within the scope of the section. His Honour concluded that there was no indication in the terms of the statute to suggest that a conscientious religious belief, persuasion or discipline would provide a valid and sufficient reason within the meaning of s 156(16) (at 7). His Honour observed at 7:

21. [91]

    Justice Wallace observed that a religious belief does not disqualify a person from the right to enrolment and does not constitute a valid and sufficient reason for failure to vote (at 6). His Honour said that as the statute was set against a policy of compulsory enrolment and compulsory voting, it should be construed strictly to exclude widening of its exemption provisions (at 7). Similarly, Olney J held that the intention of parliament was to make it compulsory for all electors to vote at relevant elections (at 7).

22. [92]

    Horn v Butcher [2010] WASCA 67 (“Horn v Butcher”) was another decision of the West Australian Court of Appeal. In that matter the elector sought leave to appeal against his conviction for failing to vote. He contended that he had a genuine and sincere view that s 206 and s 233(1)(a) of the Act had not been complied with. These sections related to requirements that there be separation of polling booths and that voting be marked in private. The question was whether failing to vote in circumstances where he believed that these sections were not complied with was a valid and sufficient reason.

23. [93]

    The Court, (Pullin and Newnes JJA and Murphy J) dismissed the appeal. Citing Judd v McKeon, the Court confirmed that what constitutes a “valid and sufficient reason” has been left for the Courts to decide (at [28]). The elector’s view was found to be no more than an expression of objection to the social order of the community in which he lives – this does not amount to a valid and sufficient reason for refusing to vote: Judd v McKeon (at [28]). It was further held that the effect of Judd v McKeon is “that a decision must be made on a case by case basis, whether there is a valid of sufficient reason. The cases referred to by the parties did not suggest otherwise. The words ‘valid’ and ‘sufficient’ are not terms of art, but bear their ordinary meaning” (at [31]).

24. [94]

    The Court went on to state that the word “valid” in its ordinary meaning may mean “‘sound, just or well-founded’ or ‘having force, weight or cogency; authoritative’ or ‘legally sound, effective or binding; having legal force’ sustainable in law’: Macquarie Dictionary (3rd ed revised, 2003)” (at [32]). “Sufficient” in ordinary meaning was said to mean “enough or adequate” (at [32]). The Court ultimately held that the elector’s view that s 206 and s 233 had not been complied and was thus a valid and sufficient reason to vote was contrary to law (at [33]) and the appeal was dismissed.

25. [95]

    The principles derived from these decisions provide that it will not be a “valid and sufficient reason” for failing to vote if: an elector is genuinely unable to form a preference from amongst the candidates (Lubcke v Little); an elector believes that none of the candidates meet with his or her approval and all meet equally with the elector’s disapproval (Faderson v Bridger); an elector has the opinion that all of the candidates are unworthy of his vote and that an informal vote was an ineffective way to register his protest (Krosch v Springell); an elector has an inability to acquire sufficient information about the candidate to enable him or her to form an opinion of their relative merits (O’Brien v Warden); or an elector believes that the polling place is physically inadequate (Horn v Butcher).

26. [96]

    At the hearing of the appeal in this matter it became apparent that [41] of the learned Magistrate’s decision is open to two interpretations. Did his Honour conclude that he was satisfied that Mr Easton believed that it was his “religious duty” to abstain from voting or did his Honour conclude that the terms of s 245(14) allowed Mr Easton to abstain from voting because he believed it was his moral albeit non-religious duty to do so? It is necessary to identify the basis upon which his Honour’s found that the tenets of Mr Easton’s belief system prevented him from voting.

27. [97]

    His Honour described Mr Easton’s reasons for not voting as “somewhat discursive and difficult to summarise for the purpose of the judgment” (at [8]) but then attempted to do so at [9]-[11]. His Honour then sought to encapsulate the reason at [12] by concluding that for Mr Easton to vote for a candidate that he did not want to vote for would go against his “agnostic, but nevertheless inherent and important moral framework.”

28. [98]

    The learned Magistrate’s finding was that the first and third reasons in the letter written by Mr Easton “somewhat less eloquently” reflected what he said in Court at the hearing and that any difference between the letter written to the AEC by Mr Easton and his evidence in Court was “minor and of little consequence” (at [16]). The first reason in the letter was that it was an oxymoron that “Australia prides itself on being a “free democracy” and yet that it is a “criminal offence not to vote.” This was said by Mr Easton to impinge on his “most basic right to choose for myself.” The third reason in the letter was that “I believe abstinence, when abstaining in numbers, can be an effective democratic tool, especially when a minimum of 50% of voters (for example) is required for a result. At the very least there should be a choice.”

29. [99]

    His Honour’s finding, which I am bound to accept for the purpose of this appeal, was that there was no significant difference between Mr Easton’s statements in his letter (that he should be free to choose not to vote) and his evidence in Court that it would offend his personal moral code not to vote. That finding was in the context of his Honour’s earlier recounting of Mr Easton’s evidence at [11] that “[i]f I had voted for somebody I did not trust then I would have walked away from that polling booth feeling morally corrupt,” that ”to vote for somebody I could not consciously vote for, and there was nobody, would be inconsistent with the beliefs and moral framework I rest my conscience on” and “[p]olitical issues do indeed go to the heart of morality and the act of voting feeds directly into my conscience.”

30. [100]

    Based on the above explanation by Mr Easton, his Honour concluded at [40]- [41] that Mr Easton presents a “deeper, more philosophical objection” to voting than not agreeing with compulsory voting, that he holds an “honestly held belief, a moral code that requires him not to vote” and that requiring Mr Easton to vote “would be to breach a truly held conscientious like viewpoint.” His Honour went on to find that “[t]he defendant has a “devout but not religious” (emphasis added) objection to voting. These findings led his Honour to conclude that it would be “simply nonsensical” if Mr Easton’s objection was “connected to a recognised religion or a belief in god” that would be a valid sufficient reason but his “conscious agnostic well-developed moral faith as described by the defendant” would not be.

31. [101]

    His Honour extracted relevant parts of the decision of Church of The New Faith in his reasons and obviously considered the broad concept of what is meant by “religion” in his determination. That decision concerned whether Scientology was a religion for the purposes of an exemption from paying pay-roll tax provided by s 10 of the Payroll tax Act 1971 (Vic). If scientology was a religion then the Church of The New Faith was exempt from pay-roll tax. I have extracted above at [27]-[28] what the Court held to constitute a religion in that decision. Mason ACJ and Brennan J also observed that “the mantle of immunity would soon be in tatters if it were wrapped around beliefs, practices and observances of every kind whenever a group of adherents chose to call them a religion… A more objective criterion is required” (at 132). Their Honours went on to observe that “[t]hat criterion must be found in the indicia exhibited by acknowledged religions” (at 132) and that: “the relevant inquiry is to ascertain what is meant by religion as an area of legal freedom or immunity, and that inquiry looks to those essential indicia of religion which attract that freedom or immunity” (at 134).

32. [102]

    Justices Deane and Wilson held that there was no formalised criterion but identified the indicia of a religion (taken from empirical observation of accepted religions). I have extracted the learned Magistrate’s summary of these indicia above at [28]. It is to be noted that their Honours held that any adherent to a religion must constitute an identifiable group and those adherents must see the collection of ideas as constituting a religion (at 174).

33. [103]

    Although the learned Magistrate cited Church of The New Faith in his judgment, his Honour expressly referred to Mr Easton’s reason for not voting as coming from a moral duty that was “non-religious” in nature.

34. [104]

    Mr Easton argued again on this appeal that his beliefs could be considered religious in nature. It was argued that this would be consistent with dicta from Latham CJ in Adelaide Company of Jehovah’s Witnesses Inc. v Commonwealth (1943) 67 CLR 116; [1943] HCA 12. That matter was decided during the Second World War by the Court comprising Latham CJ, Starke, Rich, McTiernan and Williams JJ. The Attorney-General had sought to use the National Security (Subversive Associations) Regulations 1940 (Cth) to declare certain organisations as prejudicial to the defence of the Commonwealth. Such a declaration would allow the Commonwealth to acquire property of the Jehovah’s Witnesses as a “subversive association” for government use. The Jehovah’s Witnesses in turn claimed that this was contrary to s 116 of the Constitution. The Court thus considered the nature and meaning of “religion”.

35. [105]

    Mr Easton relied upon the following dicta from Latham CJ as lending support for his argument that s 245(14) extends into other beliefs even those not involving a concept of any God. Latham CJ observed (at 123) that “it would be difficult, if not impossible, to devise a definition of religion which would satisfy the adherents of all the many and various religions which exist, or have existed, in the world. Some view religion as a set of beliefs, others prescribing a code of conduct, others believe religion involves some form or ritual or religious observance. There are those who regard religion as consisting principally in a system of beliefs or statement of doctrine… Others are more inclined to regard religion as prescribing a code of conduct… Section 116 must be regarded as operating in relation to all these aspects of religion, irrespective of varying opinions in the community as to the truth of particular religious doctrines, as to the goodness of conduct prescribed by a particular religion or as to the proprietary of any particular religious observance. What is religion to one is superstition to another.”

36. [106]

    Despite the references to Church of The New Faith in his judgment, I am not satisfied that his Honour’s reasons disclose that he actually found that Mr Easton believed it was his “religious duty” to abstain from voting nor that his belief system was a form of religion. Rather, I am satisfied that his Honour formed the view that if s 245(14) of the Act provides that a person who believes that it is his or her religious duty to abstain from voting can be exempted from prosecution it would be “nonsensical” if s 245(14) did not also extend to a person who believes that it is his or her moral but non-religious duty to abstain from voting. His Honour expressly referred to Mr Easton’s belief system as being “non-religious”.

37. [107]

    The question then is whether, as a matter of construction, the Act permits a person to abstain from voting if he or she believes it is their moral (non-religious) duty to do so.

38. [108]

    Section s 245(14) of the Act was introduced in 1990 by the Electoral and Referendum Amendment Act 1989 (Cth). Although it was initially enacted as s 245(13A), a subsequent amending Act in 1991 moved the provision to s 245(14) (the Electoral and Referendum Amendment Act 1991 (Cth)). The wording remained the same.

39. [109]

    For ease of reference, I will set out the terms of s 245(14) again:

40. [110]

    The purpose of s 245(14) of the Act is not to be found in any second reading speech or explanatory memoranda. The background to the amendment is that the Commonwealth Parliament commissioned a Joint Select Committee on Electoral Reform which published a report titled “Report No 2: The Operation during the 1984 General Election of the 1983/84 Amendments to the Commonwealth Electoral Legislation”. Recommendation 81 of this Report contained a discussion of “objections to voting on religious grounds” (at 13) in these terms:

41. [111]

    The Report notes that, as at the date of its publication, the AEC accepted “conscientious objection on religious grounds” as an excuse for failing to vote. Although it is to be presumed that the section was introduced to protect religious freedom, there is no identification of what sort of “religious duty” would prevent an elector from voting.

42. [112]

    Mr Easton’s argument proceeded on the basis that when s 245(14) was enacted it introduced for the first time the notion that a “valid and sufficient” reason for not voting could depend on a subjective belief and was no longer solely a question of providing evidence of objective factors that prevented the elector from voting, such as the examples provided by Issacs J in Judd v McKeon extracted at [78] above. In doing so, it was submitted that there was a legislative intention to enact the position articulated by Higgins J in dissent in Judd v McKeon.

43. [113]

    The principles to be applied when construing a statutory provision such as s 245(14) of the Act are well-established. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, the majority (Hayne, Heydon, Crennan, Kiefel JJ) stated at 46-7:

44. [114]

    More recently in SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936; [2017] HCA 34, the majority stated the following at [14]:

45. [115]

    There is no objects or purposes section to the Act. Section 245 of the Act, (which provides for the offence of failing to vote in s 245(15)), is to be found in Part XVI “The Polling” and not in Part XXI “Electoral Offences”, which includes more serious offences. It is clear that the mischief which s 245(15) is seeking to prevent is electors failing to vote without a valid and sufficient reason. The defence to a charge under s 245(15) of failing to vote is to be found in s 245(15B) which provides that it is not an offence to have failed to vote if the elector has a “valid and sufficient reason to do so”. I note that although Mr Easton defended his charge on the basis that he had a “valid and sufficient reason” not to vote, his Honour did not make any reference to s 245(15B) of the Act in his reasons. Rather, his Honour appears to have proceeded on the basis that the defence is contained within s 245(14).

46. [116]

    Turning to the text of s 245(14), it is to be observed that “without limiting” what amounts to a “valid and sufficient” reason for failing to vote, one example is provided, being the “belief” in a “religious duty” to abstain from doing so. The words “valid and sufficient reason” do not only appear in subs 245(14) and 245(15B) of the Act; they also are to be found in sub-ss: 4(d), 5(b), 5(c)(ii), 8(a)(ii), 9(b), 9(d) and 12(b)(i). All references to these words in s 245 of the Act are in the context of the offence under s 245(15) and the defence in s 245(15B) of having “a valid and sufficient reason” not to vote. No other examples are provided of what might amount to such a reason besides that in s 245(14).

47. [117]

    The ordinary meaning of the words “without limiting” in s 245(14) are that the example which follows is not intended to limit the meaning of what might otherwise amount to a “valid and sufficient reason” for failing to vote. If an elector does not seek to rely upon his or her belief that it is their “religious duty” to abstain from voting (as allowed for in s 245(14)) then it becomes a matter of whether the explanation provided by an elector constitutes a “valid and sufficient reason” for failing to vote within the terms of s 245(15B) of the Act and the principles to be derived from the authorities which have considered that provision.

48. [118]

    It was submitted on behalf of Mr Easton that to the extent that there was any ambiguity in the meaning of s 245(14) of the Act, the Court could have regard to the relevant extrinsic materials, being the portion of the Joint Select Committee on Electoral Reform Report extracted above at [110]: s 15AB of the Acts Interpretation Act 1901 (Cth). It was argued that, by reference to that material, it can be seen that s 245(14) extends the concept of what might amount to a valid and sufficient reason beyond the one example provided (religious duty). In this regard, Mr Easton placed reliance on s 15AD of the Acts Interpretation Act which provides that:

49. [119]

    Having regard to the text of s 245(14) of the Act, I am satisfied that the ordinary meaning of the words “without limiting” therein is that, what might amount to a “valid and sufficient” reason for the purposes of, inter alia, s 245(15B) of the Act, is not limited by the example provided in s 245(14), being a belief arising from religious duty. I am not satisfied that the meaning of s 245(14) is ambiguous or obscure. The ordinary meaning conveyed by the text of s 245(14), considering its context in the Act and the object underlying the Act, is as I have just stated.

50. [120]

    I do not accept Mr Easton’s argument that the example given in s 245(14) extends the operation of s 245(15B) by introducing other subjectively based objections to voting. Mr Easton’s reliance on the words “conscientious objection on religious grounds” in the passage of the Joint Select Committee Report at [110] above does not support this argument. The words “without limiting” in s 245(14) are to be applied to the meaning of “valid and sufficient reason” not the words “conscientious objection” to be found in the Joint Select Committee report. I am unable to accept Mr Easton’s submission to the contrary. The words “conscientious objection” are not to be found in the terms of s 245(14) and I can find no principle of construction which would permit those words to be read into the provision.

51. [121]

    Further, if Mr Easton’s argument was to be accepted, and s 245(14) of the Act extends the meaning of “a valid and sufficient reason” based on a “religious duty” to any non-political conscientious objection, the question arises as to why the text of s 245(14) is limited to a “religious duty” in the first place. The words “religious duty” would have no work to do on that construction.

52. [122]

    As I have stated above, there has been no judicial consideration of s 245(14) of the Act but there has been consideration of a similar provision in the Elections Act 1915 (Qld) in Krosch v Springell. The relevant provision (s 63(10)(a)) provided that every elector who “fails to vote at any election without a valid and sufficient excuse’ for such a failure (in this section the words ‘valid and sufficient excuse shall include an honest belief on the part of the elector that abstention from voting is part of his religious duty)” shall commit an offence. The Court of Appeal (Wanstall S.P.J., with whom Williams and Andrew JJ agreed) held that the meaning and interpretation to be given to the words “valid and sufficient excuse” is that laid down by the majority judgments in Judd v McKeon and that the words in parentheses above do no more than bring into the meaning of “valid and sufficient” one specific reason (at 108).

53. [123]

    Although the provision under consideration in Krosch v Springell contains different statutory language, I am satisfied that the policy behind both provisions is the same: to expressly provide that a belief in a religious duty to abstain from voting is a valid and sufficient reason for failing to do so.

54. [124]

    The learned Magistrate concluded at [41] that s 245(14) “allows for a form of conscientious objection in my view, and that is what has been evidenced here.” It was submitted on behalf of Mr Easton that this conclusion of his Honour at [41] has to be read in the context of his earlier observation at [12] that Mr Easton himself does not describe his belief system in that way. The difficulty with this submission is that his Honour clearly stated that s 245(14) allows for a “form of conscientious objection”. Even if it is to be accepted that the one example in s 245(14) (observance of religious duty) is of itself a form of conscientious objection, his Honour did not find that Mr Easton was a follower of any religion. Nor did he find that being agnostic was a religion. His Honour found that what was “evidenced” in Mr Easton’s case was a form of conscientious objection allowed by s 245(14).

55. [125]

    I am not satisfied that by enacting s 245(14) of the Act the Parliament intended to depart from what the High Court held in Judd v McKeon and the other cases I have summarised above. Not only would such an amendment require very clear statutory language, it is difficult to see how compulsory voting could continue to be enforced if an elector could rely upon a defence that a moral framework led him or her to believe that it was their duty to abstain from voting. No matter how strongly an elector honestly believes that it is against their moral code to vote, I am satisfied that it would challenge the fundamental obligation at the heart of compulsory voting to permit an elector to abstain from voting on any basis which is inconsistent with 245(1) and the decision in Judd v McKeon without a clear statutory exception. Section 245(14) is not such a provision.

56. [126]

    It is to be noted that the Magistrate stated that he found it difficult to summarise Mr Easton’s beliefs (at [8] of his reasons), but accepted Mr Easton’s evidence that “‘Freedom’ was his religion." As Isaacs J observed in Judd v McKeon at 386, a “valid and sufficient" reason cannot be something that is “an open challenge to the very essence” of compulsory voting.

57. [127]

    Another matter noted by his Honour in his reasons was his conclusion that informal voting is no longer permissible following the enactment of s 245(14) of the Act. As Barwick CJ observed in Faderson v Bridger (at 272), a failure to vote involves a failure to attend, accept the ballot paper, have it marked off and then put papers in the ballot box but no offence is committed by not marking the ballot paper such that it is a valid vote. Similarly, Hogarth J observed in Douglass v Ninnes at 379 that the verb “voted” cannot mean to cast a formal and valid vote because of the provisions for secrecy of the ballot. If the learned Magistrate was correct when he held that Faderson v Bridger and Douglass v Ninnes are no longer good law following the enactment of s 245(14), then this would mean that the enactment of a religious exemption to voting has fundamentally changed the definition of what it is meant to “vote”. I am not satisfied that that is the case. There is nothing in the statutory language of s 245(14) which could be construed as rendering informal voting illegal.

58. [128]

    Nor am I able to accept his Honour’s finding that s 245(14) would have no work to do if informal voting was still permissible. There is a clear difference between being completely excused from voting altogether and having to either physically leave your house and go to a polling booth and put in an informal vote or having to arrange for papers to be sent for casting an informal postal vote.

59. [129]

    I agree with the learned Magistrate that the wording of s 245(14) is “remarkably subjective”. It does not require that there actually be any religious duty requiring an elector to abstain from voting; only that an elector believes that to be the case. The wording of s 245(14) thus excuses electors from voting for claiming that they hold a belief which need not actually be based on any religious duty and is also almost impossible to challenge. An available inference to be drawn from the fact that there has never been any judicial consideration of s 245(14) is that correspondence submitted to the AEC by electors claiming such a belief is accepted on its face.

60. [130]

    Turning to the grounds of appeal, I am satisfied that the words “without limiting” do no more than bring into the possible meaning of “valid and sufficient reason” one specific example of what can amount to a valid and sufficient reason for the purposes of s 245(15B), namely, religious duty. I am satisfied that the learned Magistrate erred in finding that a devout but non-religious objection to voting constitutes an exception pursuant to subsection 245(14) of the Act. I uphold grounds 1, 2 and 3.

61. [131]

    As for ground 4, the learned Magistrate proceeded on the basis that he believed Mr Easton honestly held the strong beliefs of which he gave evidence and thus it was a matter for the CDPP to prove beyond reasonable doubt that Mr Easton did not hold those beliefs. The prosecution failed because it did not discharge that evidentiary burden. With respect to his Honour, the question is not whether an elector genuinely holds the beliefs but whether such beliefs can, as a matter of law, amount to a “valid and sufficient” reason for failing to vote. The fact that Mr Easton may have honestly held these beliefs is not to the point. The question is whether honestly and earnestly holding such a view is capable of constituting a valid and sufficient reason not to vote. For the reasons herein, I am satisfied that it is not. I uphold Ground 4 as well.

62. [132]

    Mr Easton submitted that, in the exercise of the court’s discretion, even if I found that error was established, I could dismiss the appeal. It was submitted that the Reasons for judgment would provide guidance to the Local Court in future matters. I do not propose to follow that course. I am satisfied that the appeal should be allowed.

63. [133]

    Section 59(2)(a) of the CAR Act provides that I may determine this appeal by setting aside the Magistrate’s order and making such other order as I think is just. The CDPP seeks that, in the event that the appeal was allowed, I make an order that the matter be remitted to the Local Court for a re-hearing. On the issue of the discretion not to remit the matter, my attention was drawn to a number of decisions including Director of Public Prosecutions (NSW) v Sadler [2013] NSWSC 718. In that decision Bellew J observed at [100] that it is apparent that there are differing views as to whether this Court retains a discretion not to remit a matter to the Local Court in the event error is shown. His Honour set out the relevant authorities at [101]-[104] before finding at [105] that it was not necessary for him to decide the issue. I have reached the same conclusion as Bellew J.

64. [134]

    It is to be accepted that an offence contrary to s 245(15) of the Act carries a small fine and Mr Easton has been to the Local Court and the Supreme Court already in relation to this matter. The election in which Mr Easton failed to vote was on 2 July 2016. These factors are relevant to the exercise of the CDPP’s prosecutorial discretion regarding Mr Easton’s charge. I am not satisfied, however, that I should decline to make an order remitting this matter to the Local Court.

65. [135]

    As for the appropriate costs order, the CDPP indicated that it did not seek costs in the event that it was successful and thus I do not propose to make any order for costs.

66. [136]

    Finally, I note that the CDPP has undertaken to pay Mr Easton’s reasonable costs of defending this appeal. Mr Easton submitted that, whatever the result, I should make an order that the CDPP pay his reasonable legal costs. Such an order was sought to protect Mr Easton and to allow for a costs assessor to become involved in the event that there was disagreement about the costs. In circumstances where it was not suggested that there would be any disagreement, I do not propose to make such an order. Rather, I note the undertaking made by the CDPP to pay Mr Easton’s reasonable costs of this appeal.

ORDERS

1. [137]

   In consideration of the above, I make the following orders:

   1. (1)

      The Appeal is allowed.

   2. (2)

      The matter is remitted to the Local Court for a re-hearing.