Faderson v Bridger [1971] HCA 46

High Court of Australia Barwick C.J. McTiernan and Owen JJ. Faderson v Bridger [1971] HCA 46

ORDER Appeal dismissed with costs.

The following judgments were delivered:—

Oct. 11 Barwick C.J.

The appellant was convicted by a magistrate for an offence under s. 128A (12) of the Commonwealth Electoral Act 1918-1966 in that he failed to vote at an election without a valid and sufficient reason for such failure.

The appellant gave evidence before the magistrate to the effect that he could not do as the ballot paper would have required him to do, it being a Senate election involving the expression of preferences. He could not do this he said because he had no preference, and that if he had been forced to state his preference he would have been telling a lie.

The appellant did not attend at any electoral booth and obtain a ballot paper.

The magistrate found that the appellant did not vote and that his reason for not voting was that he did not have any preference amongst the candidates.

Mr. Forsyth has assisted us very considerably and has put before us an argument to the effect that the inability of the voter if accepted as a fact to form any preference amongst the candidates is a valid and sufficient reason for failing to vote. Consequently the conviction ought to be set aside.

We have not found it necessary to ask counsel for the respondent to assist us, as I formed the conclusion, and so I understand have my brother Justices, that there is no substance in the arguments which have been put before us, although put before us very clearly and expertly.

Section 128A places a duty on every elector to record his vote. This is done by attending at a polling booth, accepting a ballot paper, and, as s. 119 provides, marking it and depositing it in the ballot box. A failure to vote therefore involves a failure to attend, accept the ballot paper and having marked it, to put it in the ballot box. Of course there is no offence committed by not marking the ballot paper in such a fashion that the elector's vote is in law a valid vote.