Kwok v Maresch

The evidence at first instance

1. The plaintiff led uncontested evidence before the learned Magistrate which which demonstrated that: the defendant was enrolled on the electoral roll as an elector for the West Ward of the Council of the City of Ryde; a local government election for that Ward was held on Saturday 9 September 2017; and he had not voted in that election.
2. A penalty notice was issued to the defendant for his failure to vote. As required by s 314(3) of LGA the penalty notice provided the defendant with an opportunity to state a sufficient reason for his failure to vote. The defendant availed himself of this opportunity returning the penalty notice, which was received by the Commission on or about 4 December 2017, and providing the following explanation: I had no knowledge or notice of any local election, and I don't know and I have never heard of any of the candidates.
3. The Commission decided that the defendant's explanation was "insufficient" under s 314(5) LGA and issued what was referred to in the evidence as a "final notice" on 23 February 2018. On 26 February 2018, the Commission received the return of the final notice from the defendant indicating his intention of having the matter dealt with by a court.
4. The evidence also established that advertisements informing the public of the 2017 local government elections had been placed in the Daily Telegraph on 9 occasions between 17 July and 5 September 2017; the Sydney Morning Herald on 10 occasions between 17 July and 6 September 2017; and the Northern District Times on 6 occasions between 26 July and 6 September 2017. The Northern District Times was proved to be a newspaper circulating in the city of Ryde local government area. The advertisements in the Daily Telegraph and the Sydney Morning Herald were general in nature, not referring to the City of Ryde Council specifically, and included the following information: Not all councils are holding elections on 8 September. To check whether you need to vote visit our website or call us. Voting is compulsory in all areas conducting elections. Fines apply for not voting. The Commission's web address and telephone number were provided.
5. Of the 6 advertisements in the Northern District Times, 4 specifically related to "Council of the City of Ryde Elections Saturday 9 September 2017", and the other two were of the same generic type for the newspapers circulating throughout the State.
6. In addition to newspaper advertisements, the evidence established that radio advertisements were broadcast between 7 August and 10 September 2017 on radio stations 2CH, 2Day FM, Edge 96.1 FM, Kiis 106.5 FM, Nova 96.6 FM, 2MMM, Smooth FM 95.3 and WSFM 101.7.
7. The defendant gave evidence before the learned magistrate. He said he had been on the electoral roll for 37 years and had never previously failed to vote. He did not read the print media, but read the Sydney Morning Herald online for about an hour or an hour and a half each day. He did not listen to any of the radio stations nominated. He was an ABC listener, tuning in to Radio National or 702.
8. He had only moved to the Ryde area in late 2016, but he was involved in community activities as a volunteer. He was "out and about" in the local community and said, "There wasn't a single poster up, anything on a power pole, nothing in my letter box". He said, "I'd never have an intention to squib any election". He felt, "the Electoral Commission clearly hasn't done their job in getting the message out" [(4.10 - .35T), page 4, 26/11/18].
9. Under cross-examination he said that: he was aware that voting in elections was compulsory; he had never made inquiries himself "as to when the next elections was coming up in his area"; he did not hear any discussion on ABC Radio about local government elections coming up; and he did not receive the Northern District Times. He confirmed he was involved in his local community and confirmed that he made no inquires "as to when there might be an election coming up". He was not challenged on this evidence. It was not put to him that his evidence was untrue. The prosecutor submitted (8.5T): I don't suggest that he was not honest in his evidence, that he was unaware of the election occurring on that day. My submission is that the significant amount of advertising conducting (sic) by the Electoral Commission discharged the Commission's obligations in that regard.
10. It was put that given the level of advertising carried out by the Electoral Commission an "individual's lack of awareness of the election" was not a sufficient reason not to vote. It was submitted that citizens have an obligation to make inquiries themselves arising out of the consideration that voting is compulsory under s 298 LGA. It was further submitted that if an individual's unawareness of an election was a sufficient reason for not voting "it would significantly undermine the operation of the compulsory voting scheme" (9.50T).

The reasons for the magistrate's decision

1. Shields LCM set out s 312 LGA which is in the following terms: A person whose name is on the residential roll in respect of a ward or area must vote at any contested election in the ward or area (other than an election of the mayor by the councillors) unless the person has a sufficient reason not to vote. His Honour identified the issue as being "whether being unaware of a local government election is a sufficient reason not to vote".
2. The learned magistrate referred to Judd v McKeon (1926) 38 CLR 380; [1926] HCA 33 and said: What will constitute in the Commonwealth context a valid and sufficient reason not to vote is a matter that has been left to the courts to decide, uninstructed by any comprehensive legislative direction. In this circumstance, the Local Government Act contains no particular provision that would bind this Court, which directs the findings that might be made as to what constitute a sufficient reason for having failed to vote. (10.30T.)
3. His Honour referred to s 314(6) LGA which applies to the exercise of the administrative discretion of the Electoral Commissioner, a member of the Commission appointed under statute responsible, inter alia, for the conduct of elections, and provides examples of sufficient reasons for not voting including death, absence from the area on polling day, ineligibility, and an honest belief in a religious duty to abstain from voting. His honour observed that in its terms the sub-section is not comprehensive, "nor is it the same factual question that is presented to this court for determination" (10.40T).
4. His Honour recorded that he was not taken to any authority directly in point. He referred to Gannat v Becker (unreported, Supreme Court of South Australia, 30 July 1992, per Olsson J) and distinguished it on the facts on the basis that there the elector had been aware of the week during which a referendum was to be held, but had failed to make enquiries to ascertain the day of the vote. His Honour said: In this case, Mr Maresch says that he was not aware of the election, and despite maintaining a reasonable level of attention to the media and engagement with his community, the fact of the election did not come to his attention at all. For those reasons the decision in Gannat, even though it is not binding in this hierarchy, is of little assistance.
5. After referring to decisions concerning the Commonwealth legislation from which his Honour derived assistance, Shields LCM said: Having regard to the evidence of Mr Maresch, I do not see why it could not be said that the fact that he was unaware of the election would not constitute a sufficient reason for having failed to vote. Mr Maresch said in evidence that he has, in the past, assiduously attended to his obligations to vote, and has not previously failed to vote in any election. This suggests to me that Mr Maresch is indeed a person who takes that obligation seriously, and on this occasion his failure to vote arises from the fact he was simply unaware. The only other part to be resolved for the purposes of this proceeding is the submission made by counsel for the Electoral Commissioner (sic) that people are required in discharge of some civic obligation to make inquiries as to the date upon which an election might be held for the purposes of them performing their obligation under the relevant legislation to vote. That seems to me to impose an intolerable burden on many people in the community who are engaged in their community, who do attend to the media but have simply not come across information that may well be placed in the media by the Commissioner in discharge of his regulatory requirements to advertise the election. It would be passing strange if every person was required to maintain a continuous series of inquiries as to when an election might be held in order to protect themselves against a prosecution of this kind in circumstances where I could not conclude on the evidence that the notice of the election set out [in the evidence] would of itself bring notice of the election to every person in the community. As I have said, his Honour dismissed the matter.

Submissions for the plaintiff

1. Ms Lewer of Counsel for the plaintiff undertook a comprehensive review of the relevant case law starting with Judd v McKeon down to the decision of N Adams J in Commonwealth Director of Public Prosecutions v Easton [2018] NSWSC 1516. It is not necessary to summarise all of these decisions which were dealt with in counsel's comprehensive written submissions. It will be necessary to say something below about Judd v McKeon and perhaps some others. Judd v McKeon decided that conscientious objection on political grounds to voting to support the capitalist system was not a "valid and sufficient reason" not to vote for the purpose of the Commonwealth legislation. Counsel pointed out that the plurality of Knox CJ, Gavan Duffy and Starke JJ stated that an expression of objection to the social order in which the elector lives was neither valid nor sufficient. Counsel pointed out that a lack of preference for the candidates standing, or even strong disagreement with their views or policies had been consistently rejected as a valid and sufficient reason not to vote in the High Court, and the Supreme Courts of Victoria, Queensland and South Australia. Similarly, the Supreme Court of the ACT has held ignorance of the identity of candidates and their policies depriving a voter recently returning from overseas of sufficient time to permit him to make an informed choice is not a valid and sufficient reason for not voting: O'Brien v Warden (1981) 37 ACTR 13. In South Australia not voting in protest over State government policies was held not to be a valid and sufficient excuse in Driver v State Electoral Department [1999] SASC 104.
2. In Horn v Butcher [2010] WASCA 67 it was held that an erroneous belief that the provisions made for marking the ballot paper at the polling place did not comply with the Act was not a valid and sufficient reason for not voting. The Court of Appeal of the Supreme Court of Western Australia held (at [34]), The appellant's wrong view of the law affords no valid reason for not voting. I interpolate this is clearly an application of the maxim that ignorance of the law excuses no-one.
3. In CDDP v Easton N Adams J rejected conscientious objection to voting on moral rather than religious grounds as a valid and sufficient reason. Counsel pointed out that her Honour said that acceptance of that objection "would challenge the fundamental obligation at the heart of compulsory voting" (at [125]).
4. Counsel placed her most significant reliance upon Olsson J's decision in Gannat v Becker . This she argued provided the closest analogy to the case at hand. There the elector had pleaded ignorance of the date for the referendum because of his absorption in his medical studies. Counsel accepted in argument that it was clear, however, that the voter's "asserted ignorance" was not accepted by the court as a matter of fact.
5. Counsel argued that the offence created by s 312 LGA is a strict liability offence and in written submissions argued ([58] to [60]): Further, if ignorance about the fact of an election is held to be a sufficient reason not to vote, this would have the effect of undermining Parliament's intention not to provide for a mental element for the offence. Had Parliament intended for ignorance of a fact (here an election) to prevent there being liability for the offence, then it could have created an offence in which knowledge of an election was an element to be proved, or provide for it as a specific exception. In this way the operation of s 312 of the LGA is not dissimilar to many other regulatory-type offences created by Parliament, which penalise conduct even where the defendant has an honest belief about a fact that is incorrect. Moreover, there is no principled basis upon which to differentiate between a person with an honestly held conscientious objection to voting … and a person who failed to vote because that person did not know that there was an election. Neither of these reasons can constitute a sufficient reason for failing to vote.
6. In supplementary submissions filed with leave, counsel called in aid of the interpretation of s 312 LGA for which she contended the provisions of the Electoral Act 2017 (NSW) which commenced on 1 July 2018. Section 207(1) of that Act is in the following terms: An elector who fails to vote at an election is guilty of an offence. I interpolate, that it is apparent that there is no express exception of "sufficient reason not to vote" contained in the express statutory elements of the offence.
7. The 2017 Act proceeds on the same general basis for enforcement as the LGA involving the issue of penalty notices providing the elector with an opportunity to provide "a sufficient reason for the failure to vote": s 259(6). Section 259(9) sets out matters required to be taken as "sufficient reason" for the purpose of the exercise of the powers of the Electoral Commissioner. Importantly s 259(9) concludes with the following words: For the avoidance of doubt, it is not a sufficient reason for the failure of an elector to vote at an election that the elector did not know that an election was being conducted. Counsel referred to Lennon v Gibson and Howes Ltd (1919) 26 CLR 285 (PC) and invoked the in pari materia principle to argue that Parliament had made its intention clear that ignorance that an election was being conducted is not a "sufficient reason". It was argued that the employment of the expression "for the avoidance of doubt" made clear that this had always been Parliament's intention in like legislation and s 312 LGA should be read in the same way.

Submissions of the defendant

1. Mr D McMahon of Counsel, who appeared for the defendant, argued that for the plaintiff's single ground of appeal to involve a question of law alone it was necessary for the plaintiff to establish that ignorance of an election falls outside the scope of the words "sufficient reason not to vote" as a matter of statutory construction. That is to say, The Commission must establish as a matter of law that ignorance of an election can never amount to a "sufficient reason not to vote". He submitted that the Court's task of statutory construction must begin and end with the text of the legislation itself.
2. Mr McMahon submitted that the available body of authority is of limited assistance. First, from a textual perspective each of the cases deals with legislation expressed in terms of a "valid and sufficient reason" not to vote. The legislation under review "only requires" a sufficient reason. Secondly, with the exception perhaps of Gannat v Becker, all of the cases cited involved electors who knew of the obligation to vote on a specific day, and each of whom made a conscious decision not to vote, for differing reasons, mostly of conscience.
3. Mr McMahon argued that there is sound reason to distinguish between conscientious objection on the one hand, and ignorance of fact on the other. The latter category does not bring the elector into direct and deliberate conflict with the statutory obligation to vote. Counsel referred to the judgment of Isaacs J in Judd v Mckeon (at p 387) where his Honour said that "valid and sufficient reason" was not limited to "personal physical inability to vote". His Honour said: The sufficiency of the reason in any given instance is a pure question of fact dependent on the circumstances of the occasion. Mr McMahon relied on the dissenting judgment of Higgins J (at p 389), who expressed the view that the statutory exception left the court with "a very wide area of discretion" extending to any reason which "would commend itself to "the man on the street"". It is not intended that such an elector should be treated as a criminal.
4. While accepting that the s 312 LGA offence is regulatory in nature and the penalty relatively small, counsel submitted that the meaning of the phrase, "a sufficient reason not to vote", should be adjudged in the light of the rebuttable common law presumption of law that every offence carries a mental element unless excluded by express words or necessary intendment: Sherras v Derutzen [1895] 1QB at 918; He Kaw Teh v the Queen (1985) 157 CLR 523; (1985) HCA 43. Whether ignorance that the occasion for observance of the obligation to vote had arisen may, legally, be a "sufficient reason not to vote" should be adjudged against that background. Had Parliament intended to exclude ignorance as a sufficient reason, it could have done so expressly, as it subsequently did in s 259(9) Electoral Act.
5. Counsel joined issue with his learned opponent on whether the in pari materia principle could be invoked to use the later Act as an aid to interpretation of the earlier enacted s 312 LGA. There is no ambiguity in the earlier provision and in any event it could not be said that the Acts formed part of the same statutory scheme, even if they have a similar purpose. There are significant differences between their respective schemes for penalising the failure to vote.
6. The sufficiency of the reason proffered for not voting should be treated as a pure question of fact as Isaacs J held in Judd v McKeon.

Legislative provisions

1. The Commission is now (since 1 July 2018) constituted by s 8 Electoral Act. The Electoral Commissioner is appointed under s 11 of that Act. Under s 12 the Commissioner has responsibility, in general terms, for the conduct of elections in NSW. The Commissioner is also an ex officio member of the Commission. The Commission and the Commissioner were formerly constituted and appointed respectively under Parliamentary Elections and Electorates Act 1912 (NSW), now repealed.
2. I have set out s 312 LGA at [14] above. It is unnecessary to repeat it here. Failing to vote is an offence "unless the person has a sufficient reason not to vote". The right to vote is conferred by s 267 LGA and the principle of one vote per elector is expressed in s 268 LGA. Compulsory voting is established by s 286 LGA which is in the following terms: … electors on the residential roll must vote at a contested election unless exempt from voting under this Act. Electors on the non-residential roll or the roll of occupiers and rate-paying lessees may vote, but are not required to vote.
3. It is perhaps not irrelevant to set out s 287 LGA in full which provides for fixed term council elections occurring on the second Saturday of September in every fourth year after 2008: (1) An ordinary election of the councillors for an area is to be held on the second Saturday of September 2008 and on the second Saturday of September in every fourth year after 2008. (2) An election of the councillors for an area is to be held on a Saturday proclaimed for the purpose if: (a) the area is constituted after the commencement of this Part, or (b) the council for the area is dismissed, or (c) the council is declared to be non-functioning under section 257. The 2017 election for the City of Ryde was not held on that statutory rotation. It was held 12 months later because of the abandonment of the State Government's policy of local government amalgamation.
4. I have already described the system for issuing penalty notices when an elector fails to vote at [5] and [6] above. It is perhaps worth setting out s 314 in full emphasising sub-section (6). (1) The Electoral Commissioner is to serve a penalty notice on each resident who is indicated on the list prepared under section 313 as appearing not to have a sufficient reason for failing to vote at an election. (2) A penalty notice is to be served within 3 months after the close of the poll at the election to which it relates and, if not served personally, is to be served by post at the address of the resident last known to the Electoral Commissioner. (3) A penalty notice is a notice in the form prescribed by the regulations to the effect that, if the resident does not desire to have the failure to vote dealt with by a court: (a) the Electoral Commissioner must be given, within a time stated in the notice, a sufficient reason for the failure to vote, or (b) a penalty of 0.5 penalty unit must be paid to the Electoral Commissioner. (4) If, within 28 days after service of the penalty notice, the Electoral Commissioner is given a sufficient reason for the failure to vote or the penalty is paid, the resident is not liable to any further proceedings for the offence to which the penalty notice relates. (5) If an insufficient reason for a failure to vote is given in response to a penalty notice, the Electoral Commissioner is to include a statement to that effect in any penalty reminder notice served under the Fines Act 1996 in relation to the penalty notice. (6) For the purposes of this section, it is a sufficient reason for a failure by a resident to vote if the Electoral Commissioner is satisfied that the resident: (a) is dead, or (b) was absent from the area on polling day, or (c) was ineligible to vote, or (d) had an honest belief that he or she had a religious duty to abstain from voting, or (e) (Repealed) (f) was unable to vote for any other reason acceptable to the Electoral Commissioner. (7) If a penalty notice is served, the Electoral Commissioner is to note on the list prepared under section 313, or on a separate list of the residents on whom penalty notices have been served, whether or not there has been a response to the penalty notice and, if there has been a response, whether a sufficient reason has been given, or a penalty paid, for the failure to vote. (My emphasis).

Decision

1. As has been pointed out already, in Judd v McKeon Isaacs J (at p. 387) stated that "the sufficiency of the reason for not voting, is a pure question of fact dependent upon the circumstances of the occasion". Neither the Chief Justice nor any of the other Justices should be understood as having expressed a contrary view. Whether a person has a sufficient reason not to vote is, of course, a question of ultimate, as opposed to primary, fact. In Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 when describing the capacity of a finding of fact to reveal error of law (at p. 156) Glass JA said: Further an ultimate finding of fact, even in the absence of a misdirection, may reveal error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made. His Honour referred to Hope v Bathurst (1980) 144 CLR 1 at 10; and Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 138 as establishing this proposition. By reference to the same authorities his Honour also said (at p. 157): … when the law correctly stated is applied to the facts found in order to produce a conclusion error may intrude again. An erroneous conclusion that facts properly determined fail to satisfy a statutory test, … will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open.
2. The Commission's case, as I have detailed above is that the primary facts found by Shields LCM, namely that the defendant failed to vote because of a genuine ignorance, or total lack of awareness, of the date fixed for the election requiring him to discharge his obligation to vote, did not satisfy the statutory test of a sufficient reason not to vote". Obviously whether ignorance that the occasion for discharging the obligation to vote has arisen is necessarily outside the statutory description, "a sufficient reason not to vote" is a question of statutory construction.
3. Bearing in mind that we are dealing with a penal provision, in my judgment the starting point for the discussion is the decision in the Queen v Tolson (1889) 23 QBD 168 which arose from a case stated by Stephen J and reserved by the Court for the consideration of all the judges. Cave J at (p. 181) said: At common law an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which a prisoner is indicted an innocent act has always been held to be a good defence. … Instances of the existence of this common law doctrine will readily occur to the mind. So far as I am aware it has never been suggested that these exceptions do not equally apply in the case of statutory offences unless they are excluded expressly or by necessary implication.
4. In Thomas v the King (1937) 59 CLR 279 at 304 - 306, Dixon J (with whom Rich J agreed), after referring to Tolson's case said: The rule accepted was that in the case alike of an offence at common law and, unless expressly or impliedly excluded, by the enactment of a statutory offence, it is a good defence that the accused held an honest and reasonable belief in the existence of circumstances which, if true, would make innocent the act for which he is charged. His Honour allowed himself the following observation: No doubt, in the application of the principle of interpretation to modern statutes, particularly those dealing with police and social and industrial regulation, a marked tendency has been exhibited to hold that the prima facie rule has been wholly or partly rebutted by indications appearing from the subject matter or character of the legislation.
5. Both Tolson's case and Thomas and the King were cases of bigamy. Dixon J considered that the general rule could not be impaired in its application to the general criminal law to which that crime belongs.
6. I, of course, am dealing with an offence created by statutory enactment. A pertinent example of the application of the presumption to mere statutory or regulatory offences is provided by Harding v Price [1948] 1 KB 695. Lord Goddard CJ said (at p. 701): If, apart from authority, one seeks to find a principle applicable to this matter it may be thus stated. If a statute contains an absolute prohibition against the doing of some act, as a general rule mens rea is not a constituent of the offence; but there is all the difference between prohibiting an act and imposing a duty to do something on the happening of a certain event. Unless a man knows that the event has happened, how can he carry out the duty imposed? If the duty be to report, he cannot report something of which he has no knowledge. That is the ratio decidendi of Nichols v Hall [5 LR 8 CP 322, 326] and, in my opinion, it is applicable to and decisive of the present case. Any other view would lead to calling on a man to do the impossible. (See the learned discussion of this topic in the similar case of Huey v O'Callaghan [2017] QMC 7 by Acting Magistrate GM Aberdeen at [56] - [54].)
7. Belling v O'Sullivan [1950] SASR 43 concerned the prosecution of the holder of a billiard table licence for failing to forthwith remove a child under the age 16 years from his licensed premises. Ligertwood J held that an honest belief by the licensee on reasonable grounds that the person was over 16 years of age was a good defence to the charge. Having pointed out that the question whether the offence is one of strict liability or the defence of honest and reasonable mistake runs is one of statutory construction, his Honour said (at p. 46): In my opinion, a person cannot be said to criminally fail in the performance of an active duty, unless he knows of circumstances, which either positively call for its exercise or which at least put him on inquiry as to whether it should be exercised. To that degree, in my opinion, proof of mens rea is required by the section. Such a construction will give effect to the object of the section, which is to keep young boys out of billiard saloons, and will occasion no difficulty in practice. (My emphasis.) Gannat v Becker, on one view, may be explained as a case where the elector knew of circumstances which at least put him on inquiry as I explain below (at [48]).
8. He Kaw Teh v The Queen was concerned with a serious, statutory offence of drug importation carrying a maximum sentence of life imprisonment. Gibbs CJ, having reviewed authorities including Tolson's case and Thomas v The King stated (at 533): These cases established that if it is held that guilty knowledge is not an ingredient of an offence, it does not follow that the offence is an absolute one. A middle course, between imposing absolute liability and requiring proof of guilty knowledge or intention, is to hold that an accused will not be guilty if he acted under an honest and reasonable mistake as to the existence of facts, which, if true, would have made his act innocent.
9. One of three open questions identified by his Honour is whether "the so-called defence … is available when the offence charged is of a truly criminal character or whether it applies only to statutory offences of a regulatory kind". At the very least, the offence under s 312 LGA would be covered by the description a "statutory offence of a regulatory kind" (p 533). And there is no question the "defence" of honest and reasonable mistake of fact applies to such offences.
10. The Chief Justice referred with apparent, if not complete (see p 535), approval to the decision of the Supreme Court of Canada in Reg v Sault Ste-Marie (City of) [1978] 2 SCR 1299 (at 1325 - 1326) where Dickson J said of offences of strict liability: .. [where] there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence would be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event.
11. Assuming s 312 LGA creates an offence of strict liability, the express exception of "sufficient reason not to vote" leaves a defence of honest and reasonable mistake well open.
12. As I have attempted to show, none of the cases from this area of discourse to which I was taken by learned counsel, which were directly concerned with failing to vote, raised any issue about mens rea either in a general sense or by reference to the defence of honest and reasonable mistaken belief. In virtually all of them, the elector knew an election was being held and chose not to vote for various reasons which in the end amounted to no more than a challenge to, or defiance of, the requirement of compulsory voting. Mens rea as such was not an issue; the issue was whether the proffered excuse was a valid or sufficient reason, as the case may be.
13. The one notable exception is the case of Gannat v Becker to which I have referred. In that case the elector asserted ignorance because of his absorption in his medical studies. However, it was apparent from the judgment of Olsson J that the explanation was not accepted at first instance. Under the cross-examination, the elector had conceded that he knew the referendum was to be held that week and that he ought to have either realised that, as with elections, he would be required to vote on the Saturday, or pursued some inquiries instead of doing nothing. His Honour said that the decision of the Magistrates was clearly correct: It was not a proper reason for failure to vote, even if that, factually, was the case, for an elector, well knowing that a referendum was to be held during a particular week to simply neglect to seek information concerning his obligation to vote. To hold otherwise would be to negate the plain intendment of the legislation. (My emphasis.) Clearly the elector's knowledge put him on inquiry. In the present case the defendant was not challenged about his complete ignorance, and indeed, the prosecution accepted his bona fides. There was nothing in the evidence, if one accepted the defendant, to enliven an obligation to make inquiries. Therefore this case is quite different from Gannat v Becker. The case is more consistent with Harding v Price; if the defendant had no knowledge whatsoever of the coming election, how could he know that the occasion had arisen for him to carry out his duty to vote?
14. The legal meaning of legislation is normally determined by a consideration of the text of the provision, its legislative and broader context, and a consideration of its purpose.
15. The language of s 312, which creates the offence, itself admits of exceptions. This being so, there is nothing about the language of the provision itself which excludes the maxim ignorantia facti excusat which underpins the principle discussed by Gibbs CJ in He Kaw The v The Queen (at p. 533), which for emphasis I repeat, that "an accused will not be guilty if he acted under an honest and reasonable mistake as to the existence of facts, which, if true, would have made his act innocent." The principle applies equally to omissions, or failures to act, as the authorities I have referred to above demonstrate. If a person is acting under an honest and reasonable mistake that no election is being held, no occasion would have arisen for the observance of the obligation to vote and a failure to vote in such circumstances would be "innocent". Nor there is there anything in the language which makes Lord Goddard CJ's dictum from Harding v Price inapplicable (p 701): unless a person knows that an election is being held, how can he or she carry out the duty to vote imposed by s 312 LGA? There is nothing in the language of the provision excluding the rebuttable presumption of law that there is no crime without a guilty mind that underpins the criminal law, both common law and statute law: Thomas v the King (at 304-306).
16. Turning then to the legislative context, voting in local government elections is both a right (s 267) and an obligation (s 286 LGA). The obligation is reinforced by the penal sanction imposed by s 312 LGA. But the obligation is not absolute. That this is so is demonstrated both by the terminating clause of s 312 LGA and by the provisions of s 314 LGA providing for the imposition of penalties by administrative action by the Commissioner. S 314(3) permits the elector to provide a sufficient reason for the failure to vote to the Commissioner in response to the penalty notice and s 314(6) provides examples of acceptable reasons for the failure to vote. That sub-section is directed to the Commissioner in the exercise of his administrative powers. Although expressly limited to the exercise by the Commissioner of his administrative functions, I accept that the matters referred to in paragraphs (a) to (f) of s 314(6) LGA are capable of informing the legal meaning of sufficient reason for the purpose of s 312 LGA. It would be entirely artificial if a court was to have regard to an entirely different set of examples from the Commissioner. But they are manifestly not exhaustive. So much is made clear by s 314(6)(f) which has the effect of providing that its sufficient reason for a failure to vote "if the Electoral Commissioner is satisfied that the resident … was unable to vote for any other reason acceptable to the Electoral Commissioner". Naturally in having regard to s 314(6) the question would be about another reason acceptable to the court. One would not regard those other reasons as being entirely at large. Rather, the other reasons would need to be considered having regard to the purpose of the Act. The point is that there is nothing in s 314(6)(f) which is inconsistent with a "plea" of honest and reasonable mistake of fact.
17. I turn then to the question of statutory purpose. The purpose of the Local Government Act 1993 generally doubtless includes making provision for the effective, efficient and democratic government of the State's population centres. I accept its objects extend further. However, Chapter 10 where the provisions under review, including s 312 LGA, are found, is solely concerned with the election of people to civic office. It may be said that compulsory voting has been a defining characteristic of Australian representative democracy for nearly 100 years. The right and obligation of electors to vote in elections has been extended from the Federal Parliament, to the State Parliament, and to local government. Like jury service, voting is a civic responsibility shared equally by all citizens. Doubtless it is consistent with this purpose that the failure to observe, and share in, the common obligation should not be lightly overlooked. This policy of the legislation is informed by a consideration of the mischief which the system of compulsory voting was introduced to remedy. The Commonwealth Electoral Act 1918 - 1925 (Cth), the subject of the decision in Judd v McKeon, was amended in 1924 by the insertion, inter alia, of s 128A making it an offence to fail to vote without valid and sufficient reason in response to the very low voter turnout for the 1922 Federal general election: CDPP v Eaton at [71]. Given the ready, indeed instant, access to World news in the 21st century every interested Australian would be aware that poor voter turnout may be a decisive factor in the outcome of elections in comparable western democracies. Governments may take power with the actual consent of only a minority of the people. Compulsory, preferential voting avoids that undesirable outcome.
18. That the obligation to vote is a matter of great consequence to be taken seriously, however, does not detract from express language of the provision providing legal excuse for not voting for "sufficient reason". None of the fundamental political considerations underpinning the system of compulsory voting persuade me, in the face of its express language, that s 312 LGA creates an offence of absolute liability. Nor do these considerations lead me to the view that s 312 LGA rebuts the presumption of law by which penal statutes are interpreted: Thomas v The King (at 304-306). There is nothing by way of express words, or necessary intendment, to exclude honest and reasonable mistake of fact as an exculpatory consideration.
19. I turn then to the question of whether by application of the in pari materia principle a different outcome is required by reason of the inclusion in the Electoral Act, from its commencement, of the following provision at the foot of s 259(9): For the avoidance of doubt, it is not a sufficient reason for the failure of an elector to vote at an election that the elector did not know that an election was being conducted. That provision, of course, commenced on 1st July 2018, after the council elections held on 9 September 2017 and before the hearing before Shields LCM on 26 November 2018. The new legislation was not drawn to Shields LCM's attention, nor was an argument mounted before his Honour that the enactment of that provision should be taken as an external aid to interpretation of the phrase "sufficient reason not to vote" in s 312 LGA. However, as the argument involves a pure question of law which could not have been met by other evidence, or a change of tack, below, and as it is expedient to consider it in the context of this appeal, both counsel having had the opportunity to address the matter, as they did in joint but differing submissions lodged with leave after the hearing of the appeal, I will grant leave for the matter to be raised.
20. The 2017 legislation is not identical in its provisions to Chapter 10 LGA. Under s 30 Electoral Act, a person is entitled to be enrolled in respect of an address in New South Wales if the person has attained the age of 16 years and is an Australian citizen. Under s 31 an enrolled person who has attained the age 18 years is entitled to vote. Under s 32 enrolment, after the age of 18, is compulsory. Voting, as such, is not compulsory in express terms, but s 207 (1) penalises failing to vote: An elector who fails to vote at an election is guilty of an offence. There is no express "sufficient reason" or "valid and sufficient reason" exception. Under s 207, voting consists of obtaining a ballot paper from an election official and placing it in the ballot box, posting a ballot paper to the Electoral Commission or voting in any other manner permitted by the Act. In no case is marking the paper to record a vote a condition of voting.
21. Under s 254, proceedings for an offence under the Electoral Act may be dealt with summarily either before the Local Court, or this Court in its summary jurisdiction. Div. 2 of Part 9, ss 259 to 262 deal with penalty notices for the offence of failing to vote. Like LGA, as I have already mentioned, s 259 deals with the content of "sufficient reason" for the failure of an elector to vote for the purpose of the Commissioner's administrative actions in terms broadly similar to s 314 LGA, with the addition of the words, I have already referred to (at [54] above). Section 261(1)(c) provides for documentary evidence to be led: That a reason for an elector's failure to vote was given in response to a penalty notice but was insufficient - is evidence that the reason given was not a sufficient reason under section 259. From this provision, I would infer that by necessary implication "sufficient reason" remains a "defence" to a prosecution for a contravention of s 207(1).
22. Ms Lewers sourced the in pari materia principle to Lennon v Gibson & Howes Limited (1919) 26 CLR 285 at 287, where Lord Shaw writing for the Privy Council expressed the principle of statutory interpretation in the following terms: In the absence of any context indicating a contrary intention, it may be presumed that the Legislature intended to attach the same meaning to the same words when used in a subsequent statute in a similar connection. (My emphasis.) The present case, of course, is different. First, in this case the Commission seeks to attach the meaning of added words in a subsequent statute to phrase "sufficient reason" appearing in an earlier statute, albeit in a similar connection. Secondly, I am here concerned with a penal statute, which in the absence of clear words or necessary intendment should not be retrospectively amended to deprive the defendant of a defence available when the alleged offence was committed: R v Miah [1974] WLR 683 at 694; Maxwell v Murphy (1957) 96 CLR 261 at 267; sub-ss 30(1) and (3) Interpretation Act 1987 (NSW). Thirdly, the words at the foot of s 259(9) of the Electoral Act do not purport, by express words or necessary intendment, to apply to s 314 LGA, let alone s 312 LGA. Fourthly, as DC Pearce and RS Geddies point out in Statutory Interpretation in Australia Eight Edition 2014 (at [12.27], p. 474): To the extent to which a provision is stated to be for the avoidance of doubt, at its highest its retrospective effect is limited: to the extent that the provision is only serving to elucidate an existing provision, it is to be treated as being declaratory of that law and therefore operates from the date of the commencement of the law that it is explaining. The difficulty with the Commission's argument is that the provision was enacted as part of the Electoral Act and operates only from 1 July 2018. Accordingly it could not be taken as explaining the provisions of LGA. Fifthly, bearing in mind that Shields LCM's decision predated the commencement of the Electoral Act, the effect of the provision is to change the law and accordingly operates only prospectively: Panochini v Jude [2000] 2 Qd R 322; [1999] QCA 444 at [15]. In my judgment the new provision is not available as an aid to the interpretation or construction of s 312 LGA.
23. Returning to Judd v McKeon, Isaacs J (at p. 386 - 387) provided the following guidance as to the meaning of the expression "valid and sufficient reason": In my opinion, a "valid and sufficient reason" means some reason which is not excluded by law and is, in the circumstances, a reasonable excuse for not voting. If it be, as in this case, an open challenge to the very essence of the enactment, it is, of course excluded by law and not valid. So also, if there be any express provision of any law with which the alleged reason is in conflict. Again, if a mandatory or prohibitive regulation be contravened the same result follows. But the reason may be compulsive obedience to law which makes voting practically impossible. Physical obstruction, whether of sickness or outside prevention, or of natural events, or accidents of any kind, would certainly be recognised by law in such a case. One might also imagine cases where an intending voter on his way to the poll was diverted to save life or to prevent crime, or to assist at some great disaster as a fire: in all of which cases, in my opinion, the law would recognise the competitive claims of public duty. These observations are not, of course, suggested as exhaustive, but as illustrative, in order to dispel the idea that personal physical inability to record a vote is the only class of reasons to be regarded as "valid". The sufficiency of the reason in any given instance, is a pure question of fact, depending on the circumstances of the occasion. (My emphasis.)
24. Rich J expressed his views more pithily (at p 390): The reason must be valid - sound in law and fact; and if valid, must be sufficient - substantial and satisfactory in the absence of counter-vailing answer. With respect, I would put Higgins J's dissenting judgmrnt to one side. His Honour's approach is out of step with the majority views, except to the extent to which his "commend themselves to honest men" test (p 390) seeks to apply a standard of reasonableness.
25. In my opinion there is no real difference of substance between "valid and sufficient reason", on the one hand, and "sufficient reason", on the other. I would have thought the former was a hendiadys in which a single complex idea is expressed by two words connected by the conjunctive, "and". The latter telescopes the same complex idea into the shorter expression, "sufficient reason". A reason could hardly be "sufficient" unless it was sound, of substance and satisfactory: Judd v McKeon, per Rich J at p 390.
26. I apprehend that the Commission's concern with the availability of a total unawareness of election day as a "sufficient excuse" is that, as with ignorance of the law, ignorance of the fact may become "an excuse every man will plead and no man can tell how to refute him" (John Selden, Table-Talk (1689)). However, the law has always distinguished between ignorance of the law and mistake of fact. The protection against a flood of cases based upon a spurious defence of ignorance is the steadfast maintenance of an appropriate judicial critical faculty in the evaluation of disputed fact. The requirement is one of honest and reasonable mistake of fact. This involves both subjective and objective aspects. Experience of life shows, an honestly held belief may yet be completely unreasonable.
27. In the present case, the evidence of the defendant was not challenged except to ask why he did not make his own inquiries. Nor was he cross-examined to demonstrate that he might have reason to suppose an election was imminent as occurred in Gannat v Kingsley. There was no general election for all local government councils in New South Wales in September 2017. Only those local government areas whose regular elections had been postponed pending the completion of the amalgamation process were required to vote. In the case of a Federal, State or Local Government general election it would stretch credulity for an elector to plead ignorance of the date fixed for the election given the highly visible election campaigns conducted by the major political parties and the saturating coverage flooding, not only, the mainstream or established media, but also, social media.
28. This case was different and the learned Magistrate accepted the detailed explanation given by the defendant. This was, in truth, a pure question of fact.
29. However, it should not be thought Isaacs J's observation that the matter "is a pure question of fact dependent on the circumstances of the occasion", or Higgins J's statement in dissent (at p 389), "[Parliament] has left it to the courts to decide such things as what reason is valid and sufficient" should be taken as setting the question of what constitutes "sufficient reason" entirely at large. With apologies to John Selden and Lord Eldon alike, the measure of the sufficiency of reason is not the length of the Magistrate's foot. As Gleeson CJ said, in an admittedly different context, in Travel Compensation Fund v Tambree (2005) 244 CLR 627; [2005] HCA 69 at [29]: To acknowledge that, in appropriate circumstances, normative considerations have a role to play in judgments about issues of causation is not to invite judges to engage in value judgments at large. The relevant norms must be derived from legal principle. In this case, the primary task of the court is to apply the legislative norms to be found in the Fair Trading Act, although the outcome is not materially different to applying the common law of negligence. (My emphasis) Adapting this statement of principle for present purposes, judgments about whether an elector had a sufficient reason for not voting do not involve judges or magistrates engaging in value judgments at large. The primary task of the court is to apply the legislative norms to be found in Chapter 10 LGA. Those norms of course include the considerations I have referred to concerning the central role of compulsory voting in our democracy and a recognition that compliance with its requirements is a civil obligation of a high order not to be lightly dismissed.
30. For the reasons I have stated, I am not of the view that ignorance that the occasion has arisen to discharge the obligation to vote is necessarily outside the statutory description of "sufficient reasons". And I am not persuaded that the Commission has demonstrated that its sole ground of appeal involves a question of law alone. The decision appealed from was quintessentially one of fact and it has not been shown to involve an error of law of the kind propounded.
31. My orders are: 1. The appeal is dismissed; 2. The plaintiff is to pay the defendant's legal costs.

Amendments 21 October 2019 - Solicitor for the defendant added to representation DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 October 2019