S168 of the Local Government Electoral Act 2011 (Qld) makes it an offence for an Elector to fail to vote at an election without a valid and sufficient excuse.
The maximum penalty for an offence against S168 of failing to vote is one penalty unit currently $133.45
An offence will not be committed where the Elector has a valid and sufficient excuse.
In current circumstances it is likely to be extremely difficult for the Queensland Electoral Commission to successfully argue that anyone had committed an offence by failing to vote in this weekend’s Local Government Elections. For Electors who live in densely populated areas with recorded cases of COVID 19 it seems highly probable that a decision not to vote would be based on a valid and sufficient excuse. There is some doubt for Electors that live in areas where there are currently no recorded cases of COVID 19 but in light of the advice of Commonwealth and State governments to people everywhere across Australia to avoid large gatherings and maintain distancing, there is likely to be a valid and sufficient excuse not to vote.Prior to any prosecution, the electoral commission is required to send a notice to an Elector who has failed to vote. This notice allows the Elector to admit the offence and pay one half of the penalty [$66.70], or to dispute the offence and provide the valid and sufficient excuse for failure to vote. If any Elector who has not voted receives this notice it is vital that a response to the notice be given. Failure to give a response is evidence in any prosecution that the Elector failed to vote without a valid and sufficient excuse.
In our view, an Elector who failed to vote and was issued a notice about failure to vote would have good prospects of establishing a valid and sufficient excuse having regard to:-
- The declaration both globally and within Australia of COVID-19 as a pandemic and the serious concerns about the spread of the virus.
- The clear and consistent messaging from all levels of Government in Australia regarding the need to avoid large crowds or other gatherings of people;
- The fact that almost every election booth in Queensland (typically set up in school halls) will involve a physical set up that will make it practical impossible to adhere to recommended social distancing measures;
- The risks from attending a polling booth seem at least as great if not greater than risks posed by restaurants, bars and hotels which have been closed down;
In short in our view any Elector who fails to vote in this weekend’s Queensland Local Government Elections is unlikely to commit any offence against the Local Government Electoral Act 2011. It is likely that a large number of Electors will choose not to vote and in current circumstances it is extremely difficult to see the Queensland Electoral Commission pursuing any person for prosecution. On the other hand, electors who failed to vote should expect to receive a notice about the failure to vote and must ensure they respond to that notice outlining the grounds of their valid and sufficient excuse otherwise they may face prosecution.
Considering the severe restrictions that have been imposed on free movement and association it is bizarre that these elections are still being held. If you are concerned about attending a polling booth then our advice is not to. If you are unwell you should not be attending a polling booth. Of course, if you feel safe enough and want to vote that is also your choice. If you don’t vote and receive a Notice from the Electoral Commission, make sure you respond to the notice with details of your valid and sufficient excuse.