Professor Lisa Hill
School of History and Politics
University of Adelaide
What are the legal and moral implications of the new federal direct enrolment and update laws? Do they represent an unwarranted interference with peoples' rights as some claim? Are they undemocratic?
2012 is, of course, the centenary of compulsory enrolment in Australia. Australia has long been proud of its unusually high and socially-even turnout levels and a comprehensive and accurate electoral roll has been vital in maintaining voting levels that are the envy of the industrialised voting world. In recent years NSW, Victoria1 and now the Federal parliaments have enacted legislation for automatic enrolment that will enable Australia to maintain and enhance that reputation. At the Federal level, the Electoral Referendum Amendment (Maintaining Address) Act, 2012 (for updating enrolment details) and the Electoral and Referendum Amendment (Protecting Elector Participation) Act, 2012 (for initiating first enrolment) received Royal Assent on 24 July 2012. These acts provide for a direct enrolment and update process, by authorizing the Electoral Commissioner to enrol an elector or to update an elector's address, provided s/he is satisfied that such an action is appropriate. In effect, this ensures that more people are enrolled and enrolled accurately. This, in turn, makes voting easier for people. It will also raise turnout. Direct enrolment is known to be an effective and decisive measure for enhancing voting (see, for example, Hill and Louth, 2004), therefore we can expect VAP (voting age population) turnout numbers to rise at the next Federal election in 2013.
These new electoral changes are necessary because there are currently 1.5 million eligible Australians missing from the electoral roll, with young people, Indigenous Australians, non-English speakers and the homeless over-represented in that figure. Furthermore, the problem of under-enrolment has been worsening over time (in 2009, the under-enrolment figure was considerably lower at 1.2 million) so this new legislation is timely, if not urgent.
But some have objected to direct enrolment and update and I shall deal with two actual or potential genres of objection here. First, there is the claim that direct enrolment and update entails an unjustified violation of privacy; and second, that it entails an unwarranted burden on individual autonomy because automatic and compulsory enrolment violates an alleged right not to participate politically. Since direct enrolment makes it more difficult to evade the requirement to vote, this genre of argument is closely related to objections to the voting compulsion itself (bearing in mind, of course, that only compulsory attendance at a voting place–not actual voting–is compelled). I will deal with privacy concerns first.
Coalition Members and Senators as well as Dr Roger Clarke from the Australian Privacy Foundation have expressed concern that direct enrolment enables electors, without their knowledge, to be placed on the Electoral Roll and for their address details to be made available to members of the public (Commonwealth of Australia, 2012, p. 2). Obviously this would be a problem for those who are silently enrolled for reasons of personal safety, including victims of domestic violence and those involved in custody disputes. However, under the new regime electors who are already silently enrolled retain that status. Further, every person whose address details are about to be changed or who is about to be put on the roll for the first time receives a letter of notification to that effect. This gives people the opportunity to raise any objections, and they have ample time (28 days) in which to do so. It should also be noted that the AEC, in using any information to directly amend the electoral roll, is bound to comply with a range of existing privacy law and practice, including the Privacy Act 1988. It is noteworthy that in the most recent NSW and Victorian elections under their new direct enrolment and update regimes neither of the state electoral commissions 'encountered any significant privacy issues, either from privacy authorities or electors'2. Therefore, in terms of privacy concerns, electors are no worse off under the new system than they were before. Certainly they are better off in terms of ease of voting access while the entire polity benefits from enhanced voting inclusion, particularly among people from marginalized social groups (see Hill, 2010).
The second, potentially more serious, objection will come from libertarians who claim that direct enrolment and update makes it much more difficult to evade the compulsions to both enrol and vote and that it therefore exacerbates the burden on autonomy that already exists in the form of compulsory enrolment and voting. For some, both compulsions represent a violation of an alleged democratic 'right not to vote' which is an assumed correlate or inversion of an assumed right to vote. On this account, voting is a privilege only to be exercised or not as one wishes; further, the right not to vote is as fundamental as the right to vote (see, for example, Blomberg, 1995, pp. 1016–7, 1036).
From this perspective, direct enrolment and update is not only as an additional constraint on that assumed right (non-enrolment being a form of non-participation) but a further tightening of the compulsion to vote, eliminating a significant remnant of voluntarism from our voting arrangements. It should be pointed out that, since formally marking the ballot is impossible to enforce under the secret ballot, there is still quite a lot of residual voluntarism left in the system; nevertheless, it is important to take these arguments seriously.
Many take for granted the existence of a right not to vote by virtue of the fact that millions of citizens in advanced, voluntary-voting democracies worldwide routinely fail to vote with impunity. Others see it as intrinsic to liberal-democratic practice. For example, Anthony Ciccone argues that '[t]he hallmark of a free society is that citizens are free to make their own choices including whether or not to vote in a given election contest.' Ciccone insists that '[t]he logical inverse of the right to vote, is a right not to vote' and that since it is 'just as important as the right to vote' it should be afforded equal respect and attract the same levels of 'strict [legal] scrutiny' when threatened. (Ciccone, 2001–2, pp. 347–8)
Does such a right exist? Despite our intuitions to the contrary, apparently not. So far, no court, either here or elsewhere, has accepted the legality of a right not to vote (see Hill, 2009). While Australian electoral law seems to recognise that the requirement to vote can be waived (for example, people can be exempt from the compulsion due to misadventure, illness or difficulty in attending a polling place) this is not the same as admitting that the right to vote is 'waivable', alienable or 'invertible' (for a fuller discussion see Hill, 2009).
The right not to vote has been tested most often in Australian courts.3 The most important test case was Judd v McKeon (1926) 38 CLR 380. The court rejected the argument that he had a right not to vote and Mr Judd was fined ten shillings by the Central Police Court in Sydney. The judgement in Judd V McKeon --that there is no right not to vote --has been endorsed in subsequent cases4 including, the most recent case of Holmdahl v Australian Electoral Commission,  SASC 76.
But should a right not to vote be recognised? Most voting libertarians, Anders Holmdahl among them, assume that voting is a personal right and a personal right only. They also tend to see voting as a privilege devoid of — or even antithetical to —duties (see, for example, Saunders, 2010; Lever 2009). But what if voting (and the proper registration that goes with it) is not only a right but a duty? What if voting is a 'duty-right'? If it is both a duty and a right, it is not unreasonable for the state to require both accurate voting enrolment and regular attendance at polls.
There is nothing in democratic theory that precludes the possibility of conceiving voting as a duty nor of conceiving it as both a right and a duty. Thinking of voting in this way seems particularly appropriate in Australia where our electoral acts tend to frame voting as a duty rather than a right. For example, the Commonwealth Electoral Act 1918, under section 245(1), states: 'It shall be the duty of every elector to vote at each election'. Even Article 29 of the Universal Declaration of Human Rights, which is often invoked by those who object to compulsory voting, states that 'rights and freedoms' are subject to 'duties to the community', including the 'just requirements of morality, public order and the general welfare in a democratic society'.
A duty-right exists where one has both a duty to do A (because others have a claim-right that I perform it) and a claim that protects this duty. If I have a duty to vote I also have a claim or right that I not be interfered with in the performance of this duty, hence the value of automatic enrolment which effectively removes significant obstacles to the performance of the duty to vote. There are many duty-rights: there is a duty-right to pay one's debts; judges have duty-rights to impose sentences, teachers have a duty-right to grade the work of their pupils, and police officers have both a right and a duty to arrest criminals. A duty-right exists even when we would prefer not to have it (Rainbolt, 2006, pp. 34–36) such as the duty-right to pay our debts.
However, it is glib to say that voting is a duty without giving reasons as to why it should be thought about in this way. Why is voting a duty and not just a privilege? The first reason is that high and socially-even turnout promotes and protects 'the common interests of the members of a political community' (Weale, 1999, pp. 41–2). Empirically we know that this is generally true; the more complete and socially-even the voting participation, the better democracy serves the interests of 'the people' (see Hill, 2010). Citizens therefore have reciprocal obligations to each other to vote so that, together, they can constitute and perpetuate the system of representative democracy and collectively enjoy the benefits of living in a properly functioning democracy where elections perform their desired functions and the common interests of the community can be protected. While it may be true that '[c]itizens do not owe their government electoral support or legitimacy' (Lever, 2009, pp. 66–72) they do owe it to each other to ensure that their government is as legitimate, representative and democratically fair5 as possible.
Further, we have a duty to vote because democracy involves work and we must all do some of this work if the system is to be truly 'of the people, by the people and for the people'. Many hold that a successful democracy depends upon widespread interest and participation in politics; voting is clearly central here. If we intentionally and persistently refrain from taking such an interest we are refusing our political responsibility while continuing to enjoy the benefits of democratic life, of living in a democracy instead of, say, a dictatorship or an oligarchy. In effect, by failing to be enrolled and vote, we are free-riding on the efforts of others.
In Australia, the opportunity and transaction costs of voting are minimal, and electoral commissions usually take on most of the work associated with registration and voting so that voting is a relatively painless process. The state thus assumes a high degree of responsibility for making feasible what it requires of voters, that is, the duty to enrol and vote. Direct enrolment and update is a further refinement on our already highly accessible voting system. The logical concomitant of compulsory voting is automatic and compulsory registration because it better enables the performance of the duty and represents the removal of a significant impediment to voting. This, in turn, helps to legitimise the imposition of the voting duty. Instituting direct enrolment and update is therefore a consistent democratic position and not a violation of any democratic rights. It renders the system more representative and therefore more democratic; it better enables electors to exercise their right to vote; and it represents a commitment on the part of the state to remove any obstacles to the performance of their duty to vote.
Blomberg, Jeffrey A. 1995. 'Protecting the Right Not to Vote from Voter Purge Statutes' Fordham Law Review, Vol. 64, 1015–1050.
Ciccone, Anthony, 2001–2. 'The Constitutional Right to Vote is Not a Duty', Hamline Journal of Public Law and Policy, 325, 325–357.
Commonwealth of Australia, 2012. Committee Hansard, Joint Standing Committee on Electoral Matters, Electoral and Referendum Amendment (Protecting Elector Participation) Bill 2012, 29 February 2012.
Hill, L. 2009. 'On the Alleged Existence of a Right Not to Vote', Proceedings of the Australasian Political Studies Association Conference 2009.
Hill, L. 2010. 'Is Low Turnout a Non-Problem?', Proceedings of the Australasian Political Studies Association Conference 2010.
Lever, A. 2009. 'Is Compulsory Voting Justified?', Public Reason, 1 (1), pp. 57–74.
Louth J. and Hill, L. 2005. 'Compulsory Voting in Australia: Turnout With and Without It,', Australian Review of Public Affairs, (Journal) 6 (1), pp. 25–37.
Rainbolt, G. W. 2006. The Concept of Rights, Dordrecht: Springer.
Saunders, B. 2010. 'Increasing Turnout: A Compelling Case?', Politics, 30 (1), pp. 70–77.
Weale, A. 1999. Democracy. New York: St Martin's Press.
Prepared for the AEC Electoral Research Forum, 19–20 Nov 2012, Canberra.
The views expressed in this paper are those of the author, and do not represent the views of the Australian Electoral Commission or the Australian Government.