Comments:High Court of Australia dismisses appeal against conviction, compulsory voting
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|Thread title||Replies||Last modified|
|oil and clown colors||0||15:45, 31 December 2022|
|FAILING TO VOTE successful grounds of appeals||1||22:23, 22 February 2014|
|Consideration of "human rights" requires conviction||12||05:12, 25 April 2013|
Last edit: 15:45, 31 December 2022
Bill and the maps are sticking together well enough to appear to be made of swollen iron and greasy spokes.
In DPP (for the Australian Electoral Commission) v Schorel-Hlavka the County Court of Victoria, Case numbers T01567737 & Q10897630 Mr G. H. Schorel-Hlavka O.W.B. appealed convictions by the Magistrates Court of Victoria at Melbourne of 17 November 2005 for FAILING TO VOTE. On Appeal Mr G. H. Schorel-Hlavka O.W.B. ( a CONSTITUTIONALIST) relied upon some of the following:
1. The Framers of the Constitution debated in 1897 if the Commonwealth of Australia should be provided with the legislative powers to compel registration and/or voting. This was abandoned.
2. As the Commonwealth Ele3ctoral Act 1918 provides for religious exemption then WELSH v. UNITED STATES, 398 U.S. 333 (1970), 398 U.S. 333, WELSH v. UNITED STATES, CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, No. 76., Argued January 20, 1970, Decided June 15, 1970 applies. That this provision is unconstitutional unless it also applies for non-religious objections. (I view this indicates that Judd v McKeon was wrongly decided.)
3. As I was standing as a candidate I could not be forced to vote for any opponent, this as my standing in itself was to be accepted that I held none of the other candidates were credible to vote for.
4. I had also filed and served a s78B NOTICE OF CONSTITUTIONAL MATTERS and none of the Attorney-Generals nor the DPP (for the Commonwealth of Australia) challenged and/or opposed any of the details stated in it. This included that the Commonwealth of Australia (contrary to the High Court of Australia Sue v Hill 1999 case stated decision for the Court of Disputed Returns) was a "POLITICAL UNION" and not a sovereign country, and the constitution didn't permit to change this.
5. Also, that constitutionally Australians were and remained "British Subjects" as it was beyond the legislative powers of the Commonwealth to alter this. And many more constitutional issues, such as that a corporate Government and a corporate court have no constitutional powers, etc. Including that the provisions of "AVERMENT" in the Commonwealth Electoral Act 1918 could not be enforced in a state Court exercising Federal jurisdiction and this was upheld by a Magistrate on 4 August 2005 in the Magistrates Court of Victoria at Heidelberg in King v Schorel-Hlavka (King being the AEC returning officer) being the cases against which the successful appeals were pursued.
The defendant claims that he has a right to disregard the will of the majority regarding compulsory voting. I argue here that he does not. A holding to the contrary would deprive "The People" of the power to decide that they collectively want to use a compulsive voting system. Holding that compulsory voting systems are not enforceable would materially restrict the choices available to The People collectively. The instant holding, which affirms that The People do have the right to institute compulsory voting, does not materially restrict the choices available to The People individually. An individual who does not want to vote can conform to the law by filing a random vote, which requires minimal effort and time and satisfies the letter, although not the spirit, of the law.
The rights of The People Collectively are an important part of the rights of The People Individually. We are not talking about opposing parties here. The issue is one of the correct balance of two different kinds of rights which both attach to the same person. Weakening or restricting the power of The People Collectively harms the instant defendant, even though in this particular matter he opposes the will of the majority, because there will be many issues for which he will be aligned with the majority.
The argument made above relies upon the legitimacy of the voting system and, in particular, it assumes that compulsive voting is indeed the will of the majority. In general, citizens who do not like the status quo as determined by the majority have three choices: (1) accept it, (2) work to change it, or (3) emigrate.
Simple logic: which is the brighter of the two moves? A long involved court case over a trivial matter, or leaving the guy alone?
I wouldn't say this is a trivial matter. You can agree or disagree with Holmdahl, but individual rights are at the core of democracy so deciding how they work is important. The question here seems to be whether saying individuals have a right to vote implies they have the right to not vote. If not voting is an individual right, then a majority vote isn't enough to universally deprive everyone of that right. Sure, individual rights have parameters, like the classic case of free speech when yelling "fire" in a crowded theater, but depriving all individuals of an individual right is eliminating the individual right.
Despite Australia having signed the Universal Declaration of Human Rights, not all of those rights are directly listed in Australian constitution or any other law. For example, there is nothing speaking of right to healthy lifestyle; there are a few notes about not doing anything with the goal of harming someone's health, either directly or with the goal of own revenue, but there is nothing that would otherwise support that right, so if someone breaks a law for the sake of their health they would still be guilty of an offense unless there is an exception. (For example, road rules acts of the states have a special note that certain rules may be ignored if there is a question of saving someone's life.)
Again, it appears that there is nothing in Australian legislation that defines voting as a right, other than the Constitution. It does not have a glossary. Technically one could argue that saying that someone can do something doesn't contradict a duty to do it. It becomes a linguistic question, or possibly a question of common law and looking at how such situations were resolved in Australian and other countries court cases before.
I will assume that some act of a legislature ordained, "Thou shalt vote." If such a law is made, then the only way to escape it is to persuade a judge to rule that the law is void because it is in conflict with organic law. We do not have here a philosophical question about whether there is an inalienable human right to NOT vote. All we have here is a common law question as to whether the statute is unconstitutional, and that question was answered by the High Court.
In attacking the relevance of your post, I am also attacking the relevance of my own post!
As a practical matter — nothing to do with organic law — to make a democracy work one has to place a higher burden of consensus on some types of actions. That is, a robust democracy is not purely majoritarian. If a simple majority could take away the rights of the minority, the system would be inherently unstable. 'Individual rights' are a major class of things that must, for a robust democracy, require a higher level of consensus to tamper with.
The question raised by this case is, to my understanding, about the differential between different levels of consensus. Compulsory voting was imposed at the legislative level; Holmdahl claims that the right to decide whether or not one will vote requires a higher level of action than ordinary legislation.
Interesting point regarding the role of consensus in democracy. I saw consensus work beautifully during the evening assemblies in the Occupy Oakland encampment.
Any such claim by Mr. Holmdahl has no merit. In any real world jurisdiction, what is or is not a civil right is not decided by philosophers or mystics or inspired civil disobedient citizens. The question is determined by the High Court. And it was so determined.