The Best Kept Secret of the Election
By Rob Oxley
15 May 2019
Unless you have been hiding under a stock pile of democracy sausages it would have been almost impossible not to get caught up in the frenzy of the upcoming general election.
In the week ahead, Australian citizens across the country will attend their local polling booth, or post their ballot papers, after which time, the fate of our politicians and the political future of our country as a whole will be decided, at least for the time being…
Having moved to Australia from England as an adult, I never attended an Australian school and I only began my education on Australian politics later in life. To that end, I was surprised to recently learn from a colleague that the “secret ballot” used across the world originated in this very country. Whilst the practice of secret ballots can be traced back to Ancient Greece, it was first introduced as a common voting method in 1856 for the conduct of elections in Victoria, Tasmania and South Australia. Other colonies later followed suit and the secret ballot practice was used throughout Australia by the time of Federation.
In Victoria, the Electoral Act 2002 explicitly provides for “secrecy of vote”. The Act expressly prohibits anyone present when an elector is voting to directly or indirectly induce the elector to show how the elector intends to vote. The penalty for breaching this law can be up to 1 year in prison. Interestingly, the Act does not appear to extend the secrecy of the vote beyond the voting booth.
Whilst in Victoria, the requirement of a secret ballot is mandatory, that is not the case in every democratic society. In the United States for example an eligible voter has the “right” to a secret ballot but equally has the freedom to waive that right. This right has been exercised when voters opt to cast their vote by facsimile or online.
Back in Australia, the Federal Court was required to consider the requirements of a secret ballot in Horn v Australian Electoral Commission in 2007. In that proceeding, the Court was asked to consider whether failure to provide voters with the protection of a door, screen or curtain when casting their vote was a breach of the secret ballot process. In dismissing the proceeding the Court determined that in a secret ballot, the secrecy attaches to the vote itself and was not lost merely by the absence of a screen.
Until I become an Australian citizen, I will not be entitled to cast my vote. Rather, in the coming days when my wife completes her postal vote ballot paper I will be making sure that the kids and I keep a safe distance away to allow her to exercise her statutory right to privacy and a secret ballot.