Adam James Easton refused to vote at the 2016 Federal Election because he felt he wouldn't be able to walk away from the ballot box with his "moral integrity intact".
He was among 1.3 million Australians who were on the electoral roll, but did not cast a ballot, risking a $20 fine under Australia's compulsory voting laws.
Easton was fined, but instead of stumping up the cash he challenged it in the NSW Local Court, and won. But on Thursday that decision was overturned in the NSW Supreme Court, which found Easton did not have a valid reason for not voting under Australian law.
The two-year legal saga over a $20 fine has shed light on Australia's compulsory voting laws, including the role played by religion, what is and isn't a valid reason to not vote, and the capacity of the media to confuse.
To understand what went on, it's important to know this first: the Commonwealth Electoral Act says someone can legally refuse to vote if they believe it to be a part of their religious duty.
In August 2017, as he challenged the fine, Easton declared to the Lismore Local Court "Freedom, if it were a religion, would be my religion".
"But even though it is not a religion, it is a structure of beliefs that underpin my moral framework, and it is this framework that provides the reasons I did not vote," he continued.
If he had voted, Easton said, "I feel I would’ve walked away from that polling booth feeling morally corrupt, much like a religious person I imagine, if they had just sinned."
His local court victory, handed down on September 26, 2017 was described as a "leap into the legal unknown" by Lismore magistrate David Heilpern.
Heilpern ruled that Easton has "an honestly held belief, a moral code that requires him not to vote". He said it would be "nonsensical" to let people with a religious objection off the hook, but not those with an "agnostic well-developed moral faith" like Easton.
But instead of walking off with that $20 still in his pocket, Easton was dragged to the New South Wales Supreme Court after the Commonwealth Director of Public Prosecutions (CDPP) appealed the ruling.
First, Supreme Court justice Natalie Adams had to decide whether to hear the appeal at all, because the CDPP had filed it late.
Its explanation for the tardiness went like this: Because the decision was in the Local Court, the lowest ranking court in NSW, it had no binding legal effect — beyond saving Easton $20.
Even though the CDPP thought Heilpern was completely wrong, it decided to let the relatively inconsequential decision float on by into the legal ether.
About two months later, for reasons that remain unclear, the decision was published on the NSW Caselaw website, which is regularly trawled by journalists and lawyers. The vast majority of Local Court decisions are not published on this website.
Some of the ensuing media reports were inaccurate – one claimed the decision "may mean an end to compulsory voting" – and the average person googling "compulsory voting" would be more likely to find those articles than the actual decision, Adams said. So she allowed the appeal on public interest grounds.
"If a person was to read one or more of these articles, he or she might form the view that one can abstain from voting on the basis of a conscientious objection," she said.
"There is nothing to suggest that the CDPP could have envisaged that this decision from the Lismore Local Court would subsequently be published so widely."
She also noted that the CDPP had offered to pay Easton's costs in the appeal and had hired a top tier lawyer, Gabrielle Bashir SC, to represent him.
Then, Adams had to consider whether Heilpern's decision was correct. The short story is, she found that it wasn't.
There is quite a history of people refusing to vote in Australia, yet the "religious duty" provision had never been tested before in court.
Adams considered a number of cases where people had argued against having to vote. The reasons included: disagreeing with the layout and privacy of the polling booths, not wanting to serve the interests of political parties and big business, returning from overseas and not knowing anything about the candidates, having no preference, being a subject of God's kingdom, and being a member of the Socialist Labor Party and not wanting to vote for supporters of capitalism.
None of them were found to be "valid and sufficient" reasons for not voting.
Three months after the Heilpern decision, in a similar case in a NSW local court, Aboriginal man Wayne Carr unsuccessfully argued that voting would make him "complicit in actions that are against my Aboriginal religion".
In her ruling Adams said Heilpern hadn't actually found Easton believed he had a "religious duty" to abstain from voting. Instead, she said, Heilpern had formed the view that it was silly to let a person abstain from voting based on religious duty, but not based on moral non-religious duty.
So, does the law allow someone to refuse to vote under the religious duty provision if they have a moral objection?
It does not, Adams found. She pointed out that the relevant High Court case on this issue says a valid reason for not voting cannot be something that is "an open challenge to the very essence" of compulsory voting.
"It is difficult to see how compulsory voting could continue to be enforced if an elector could rely upon a defence that a moral framework led him or her to believe that it was their duty to abstain from voting," Adams said.
Adams agreed with Heilpern that the religious duty clause is "remarkably subjective".
"It does not require that there actually be any religious duty requiring an elector to abstain from voting; only that an elector believes that to be the case," she said.
She concluded that the fact Easton had a strong and honestly held belief against voting was not the point – the point was whether it was a valid and sufficient reason under the law for not voting, and it wasn't.
And so on Thursday she overturned Easton's win and sent him back to the Local Court...where he will face a retrial over that $20 fine.
Lane Sainty is a reporter for BuzzFeed News and is based in Sydney, Australia.
Contact Lane Sainty at email@example.com.
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