Citation: R v Wayne Alfred Carr [2017] NSWLC 21
Court: NSW Local Court
Date: 22 December 2017
Judge: Magistrate B Shields
Background
The defendant, an Aboriginal man aged 62, was charged with failing to vote at the federal election held on 2 July 2016, contrary to s 245(15) of the Commonwealth Electoral Act 1918 (Cth). It was not disputed that he did not attend a polling place or cast a declaration vote. When contacted by the Australian Electoral Commission, the defendant explained his non-participation by reference to his Aboriginal identity, his view that government laws and policies were causing cultural genocide, and international human rights concerns.
When the matter proceeded to court, the defendant raised two defences. The first was that he held a genuine religious belief that voting was contrary to his Aboriginal religion, engaging the specific exemption in s 245(14). The second was that his conscientious objection more broadly, whether framed as religious, moral, or political, constituted a "valid and sufficient reason" under s 245(15B).
The religious duty defence was raised for the first time in a statement provided on the first day of the hearing. His earlier communications to the AEC had made no mention of religious duty.
Legal Issues
- Whether the defendant's belief that voting was contrary to his Aboriginal religion satisfied s 245(14) of the Act, which deems a belief in religious duty to abstain from voting to be a "valid and sufficient reason."
- Whether a genuine conscientious objection, whether religious, moral, or political in character, constituted a "valid and sufficient reason" under the general exception in s 245(15B).
- How the evidential burden operates in this context: what the defendant must establish to enliven the defence, and what the prosecution must then disprove.
Decision
The religious duty defence under s 245(14): The court found the defendant had not discharged even the evidential burden required to engage this defence. The religious duty claim emerged only at the hearing itself, with no prior mention of it in his communications with the AEC. The court assessed the defendant's oral and written evidence and was not satisfied that the evidence was capable of supporting an inference of a genuine belief in a religious duty to abstain from voting. Without discharging the evidential burden, the prosecution was not required to disprove the claim, and this defence failed at the threshold.
The general conscientious objection defence under s 245(15B): The court considered whether a sincerely held moral or political objection could amount to a "valid and sufficient reason" for not voting. Drawing on the High Court's reasoning in Judd v McKeon (1926), and examining the legislative history of s 245(14), the court concluded that conscientious objection of a moral or political character does not qualify. Parliament's deliberate insertion of s 245(14), which limits the religious exemption to cases of genuine religious belief, signals that broader conscience-based objections were not intended to fall within the general exception.
The court reasoned that extending s 245(15B) to cover moral and political objectors would create a potentially unlimited class of exemptions, fundamentally undermining the universality of the voting obligation that underpins Australia's democratic system. The court acknowledged that the defendant's concerns about the treatment of Aboriginal Australians were sincerely held, but held that sincerity alone does not make an objection legally sufficient.
Both defences failed, and the defendant was convicted.
Orders Made
• Mr Carr stands to be convicted
Key Takeaways
- Under s 245(14) of the Commonwealth Electoral Act 1918 (Cth), a belief in religious duty to abstain from voting constitutes a valid and sufficient reason for failing to vote, but the defendant must first discharge an evidential burden by pointing to evidence capable of supporting a reasonable possibility that such a belief genuinely exists.
- A claim of religious duty raised for the first time at a court hearing, with no prior mention in communications to the AEC, may fail to discharge even that threshold evidential burden.
- Conscientious objection grounded in moral or political views, even where sincerely held, does not constitute a "valid and sufficient reason" for failing to vote under s 245(15B). The court followed Judd v McKeon (1926) 38 CLR 380 in reaching this conclusion.
- Parliament's specific and limited recognition of religious duty in s 245(14) indicates a legislative intention to exclude broader categories of conscience-based objection from the general exception.
- An appeal against the conviction to the NSW District Court was withdrawn and dismissed.
Legislation and Cases Referenced
Legislation:
- Commonwealth Electoral Act 1918 (Cth), ss 245(14), 245(15), 245(15A), 245(15B), 388
- Criminal Code Act 1995 (Cth), ss 13.1, 13.3
- Electoral and Referendum Amendment Act 1989 (Cth)
- Electoral and Referendum Amendment Act 1991 (Cth)
Cases:
- Judd v McKeon (1926) 38 CLR 380
- R v Khazal (2012) 246 CLR 601; [2012] HCA 26
- Adelaide Co of Jehovah's Witnesses Inc v Commonwealth (1943) 67 CLR 116
- Church of the New Faith v Commissioner for Pay-Roll Tax (Vic) (1983) 154 CLR 120
- R v Adam Easton [2017] NSWLC 19
- Valentine v EID (1992) 27 NSWLR 615
- Douglas v Ninnes (1976) SASR 377
- Krosch v Springell; Ex parte Krosch [1974] Qd R 107
- Blakeney v Coates (Unreported, WASC, Full Court, 22 September 1982)
- Horn v Butcher [2010] WASCA 67
- La Macchia v Minister for Primary Industries & Energy (1992) 110 ALR 201