Electoral Act 1907

In this section, a valid and sufficient reason in relation to a failure to vote includes an honest belief on the part of an elector that abstaining from voting is part of their religious duty.

An elector must vote in any election for the whole of State electorate, and in any election for the district for which the elector is enrolled, unless prevented from doing so by absence from the State, or because the person has a mental or physical impairment on the days on which voting occurs in the election.

As soon as practicable after the election the Electoral Commissioner must ensure that there is prepared a list of the names and addresses of the electors who were on the roll for the whole of State electorate or the roll for the district, as the case requires, and did not vote in the election.

A list prepared under subsection (2) shall be certified by statutory declaration of the Electoral Commissioner, or a person authorised by the Electoral Commissioner.

A list prepared and certified under subsections (2) and (2a) shall in all proceedings be prima facie evidence of the contents thereof and of the fact that the electors whose names appear therein did not vote in the election.

Subject to subsection (5), within the prescribed period after the close of each election, the Electoral Commissioner shall send a penalty notice to each elector whose name appears on the list prepared under subsection (2).

The Electoral Commissioner does not have to send a penalty notice to an elector if the Electoral Commissioner is satisfied that the elector —

is dead; or

was outside the State on polling day; or

was ineligible to vote in the election; or

had a valid and sufficient reason for failing to vote.

A penalty notice is a notice in a prescribed form notifying the elector —

that the elector appears to have failed to vote in the election; and

that it is an offence to fail to vote in an election without a valid and sufficient reason for the failure; and

that if the elector does not wish to have the apparent failure to vote dealt with by a court, the elector may on or before the response date set out in the notice —

if the elector did vote as required by this Act — give the Electoral Commissioner particulars of the circumstances of the elector’s voting; or

if the elector failed to vote — give the Electoral Commissioner a valid and sufficient reason for the failure; or

pay to the Electoral Commissioner the penalty set out in the notice (the modified penalty).

The response date set out in a penalty notice shall not be less than 21 days after the day on which the notice is sent.

The modified penalty set out in a penalty notice must be an amount not exceeding —

if the elector has not previously paid a modified penalty under this section or been convicted of an offence against this section — $50; or

otherwise — $75.

If, on or before the response date —

an elector responds to a penalty notice in the manner indicated in subsection (6)(c)(i) or (ii) and the Electoral Commissioner is satisfied —

in the case of a response under subsection (6)(c)(i) — that the elector did vote as required by this Act; or

in the case of a response under subsection (6)(c)(ii) — that the reason for the failure to vote is a valid and sufficient reason;

an elector responds to a penalty notice by paying the modified penalty,

Subsection (13A) applies to an elector if a penalty notice is sent to the elector and —

the elector does not respond to the penalty notice on or before the response date; or

the elector responds to the penalty notice on or before the response date in the manner indicated in subsection (6)(c)(i) or (ii) but the Electoral Commissioner is not satisfied —

in the case of a response under subsection (6)(c)(i) — that the elector voted as required by this Act; or

in the case of a response under subsection (6)(c)(ii) — that the reason for the failure to vote is a valid and sufficient reason.

If this subsection applies to an elector the Electoral Commissioner may send to the elector an infringement notice in a prescribed form —

notifying the elector —

that the elector has not responded to a penalty notice; or

that the elector’s response to a penalty notice has not satisfied the Electoral Commissioner,

informing the elector that if the elector does not wish to be prosecuted in a court for an alleged offence of failure to vote in an election without a valid and sufficient reason for such failure, the elector may, on or before the response date set out in the infringement notice, pay to the Electoral Commissioner the penalty set out in the infringement notice (the modified penalty).

Subsections (7) and (8) apply, with any necessary modifications, to an infringement notice.

If in response to an infringement notice the modified penalty is paid to the Electoral Commissioner on or before the response date, proceedings are not to be taken against the elector for a contravention of subsection (16)(a).

If an elector is unable, by reason of absence from their place of living or physical incapacity, to respond to a penalty notice or to an infringement notice on or before the response date, any other elector who has a personal knowledge of the facts may, subject to the regulations, respond to the notice within that time, and that response is to be treated as compliance by the first‑mentioned elector with the notice.

At the conclusion of an election, the Electoral Commissioner must —

cause to be ascertained whether any person who failed or neglected to respond to a penalty notice or an infringement notice is living at the address shown in the roll; and

if the Electoral Commissioner is satisfied that the person is no longer living at that address, cause the name of that person to be removed from the register of electors.

A person whose name has been removed from the register of electors under subsection (15) must make a new claim for enrolment before their name is reinstated on the register of electors.

If an elector fails to vote in an election without a valid and sufficient reason, the elector commits an offence.

If, in response to a penalty notice or to an infringement notice, an elector makes a statement that the elector knows to be false or misleading in a material particular, the elector commits an offence.

Proceedings for an offence against this section shall not be instituted except by the Electoral Commissioner or an officer thereto authorised in writing by the Electoral Commissioner.