Compulsory voting and the promotion of human rights in Australia

Abstract

Under what democratic conditions does the ‘vertical accountability’ mechanism of voting maximise rights protection? Using an empirically informed political theory approach I argue that the Australian case demonstrates that it does so where compulsory voting laws are in place and are appropriately administered. It achieves this in often unappreciated and undetected ways. I begin by showing how compulsory voting uniquely ensures that the right to vote is transformed from a merely formal to an instantiated, material right; from a right that exists on paper to one that is not only exercisable but also exercised. It does this in a number of ways. First, compulsory voting, as it is practised in Australia, promotes the right to vote itself simply by removing most of the ergonomic, practical and even psychological costs of voting that often deter voters in voluntary regimes. Second, governments elected in compulsory voting elections are more responsive to the needs of all citizens, rather than just the (privileged) subset of citizens that vote in voluntary elections. In turn, this means they are better able (and willing) to protect such rights as the right to equality before the law and the right to be free from discrimination. In promoting these negative rights, compulsory voting also serves a number of positive welfare rights.

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Compulsory voting and the promotion of human
rights in Australia
Lisa Hill
To cite this article: Lisa Hill (2017) Compulsory voting and the promotion of
human rights in Australia, Australian Journal of Human Rights, 23:2, 188-202, DOI:
10.1080/1323238X.2017.1363373
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ARTICLE
Compulsory voting and the promotion of human rights in
Australia
Lisa Hill
Politics and International Studies, University of Adelaide, Adelaide, SA, Australia
ABSTRACT
Under what democratic conditions does the ‘vertical accountabil-
ity’mechanism of voting maximise rights protection? Using an
empirically informed political theory approach I argue that the
Australian case demonstrates that it does so where compulsory
voting laws are in place and are appropriately administered. It
achieves this in often unappreciated and undetected ways. I
begin by showing how compulsory voting uniquely ensures that
the right to vote is transformed from a merely formal to an
instantiated, material right; from a right that exists on paper to
one that is not only exercisable but also exercised. It does this in a
number of ways. First, compulsory voting, as it is practised in
Australia, promotes the right to vote itself simply by removing
most of the ergonomic, practical and even psychological costs of
voting that often deter voters in voluntary regimes. Second, gov-
ernments elected in compulsory voting elections are more respon-
sive to the needs of all citizens, rather than just the (privileged)
subset of citizens that vote in voluntary elections. In turn, this
means they are better able (and willing) to protect such rights as
the right to equality before the law and the right to be free from
discrimination. In promoting these negative rights, compulsory
voting also serves a number of positive welfare rights.
KEYWORDS
Human rights; compulsory
voting; democracy; voter
turnout
Introduction
In their introduction to this symposium, Carolien van Ham and Louise Chappell (2017)
suggest that democracy
1
–provided it is authentic and well-functioning –is the best
‘procedure’for achieving rights as ‘outcomes’. Within their tripartite typology,
2
citizens’
participation in elections is a key democratic accountability mechanism for protecting
human rights. They pose the question: ‘under what conditions’do ‘democratic proce-
dures’enhance ‘human rights outcomes’and when do they perform less well in
delivering such outcomes? I argue in this empirically informed, political theory paper
that electoral democracy performs this function best when the entire citizenry votes, not
just privileged sections of it, which is what generally happens in voluntary regimes. Since
the only really reliable way of ensuring that everybody votes is to make voting compul-
sory (Louth and Hill 2005), voting should be required by law in order to maximise the
rights-promoting potential of vertical accountability.
CONTACT Lisa Hill lisa.hill@adelaide.edu.au
AUSTRALIAN JOURNAL OF HUMAN RIGHTS, 2017
VOL. 23, NO. 2, 188–202
https://doi.org/10.1080/1323238X.2017.1363373
© 2017 Australian Journal of Human Rights

Universal suffrage is a hallmark of modern democratic societies. Voting in elections is
the primary mechanism by which individuals can hold their governments to account
and communicate their consent and dissent to political leaders; it is also one of the key
mechanisms by which legitimacy is conferred upon democratic states. Therefore, the
right to vote for democratic representation, without discrimination, is properly seen as a
fundamental civil liberty in systems that purport to be both democratic and legitimate.
But is having the formal right to vote enough?
I argue that it is not and that not only should governments make voting an easily
exercisable right, but citizens should actually vote so that they can hold governments to
account and exercise their interest in self-government and self-protection. In other
words, they should exercise this right in order to protect their other rights. This is
particularly important in Australia, the only Western democracy without a bill of rights
(Chappell, Chesterman, and Hill 2009; Charlesworth 2002, 14).
3
Background
The absence of entrenched rights in the Australian Constitution reflected a belief on the
part of the framers that the law produced by a popularly elected parliament was the
best safeguard of rights. As Haig Patapan puts it: ‘Parliament itself was seen as a
manifestation and defence of another form of liberty –the right to be represented
and participate, through voting, in the formulation of laws’(Patapan 2000, 42; see also
Charlesworth 2002,17–25). Of course, it is never safe to rely exclusively on ‘vertical’or
‘ballot box accountability’to protect rights, especially where minority interests are
concerned (Williams 2002, 43), and there are many examples of the diminution of rights
by the Australian Federal Parliament (Charlesworth 2002, 38; Chappell, Chesterman, and
Hill 2009, passim). This underlines the persisting importance of both horizontal and
diagonal accountability mechanisms, even in well-functioning democracies. By the same
token, in the absence of constitutional protection for rights in Australia, near-universal
electoral participation (the ideal form of vertical accountability) has been able, in various
ways, to fill some of the rights gaps left by this omission.
As I seek to show in the following discussion, compulsory voting works to protect
certain rights in subtle, systemic, often indirect and usually overlooked ways. By enhan-
cing the functioning of Australian democracy, it enhances, in turn, the enjoyment by
Australian citizens of a whole range of positive and negative rights, including the right
to vote itself.
While van Ham and Chappell (2017) suggest that Australia lags behind other nations
in protecting human rights, I argue that compulsory voting, as it is practised here,
protects rights by means that escape conventional measures for rights protection. It
does so, first, by rendering the act of voting easier and more meaningful, thereby
instantiating the right to vote; second, indirectly, by strengthening the democratic
condition in general (representative democracy being the best political system for the
protection of rights); and third, by helping to instantiate the rights to equality of
treatment and freedom from discrimination. When these latter rights are more system-
atically honoured, a further range of negative and positive rights such as the right to a
decent standard of living, the right to security and the right to an education, are also
promoted.
AUSTRALIAN JOURNAL OF HUMAN RIGHTS 189

I focus on the Australian case, drawing lessons from comparable compulsory and
voluntary voting settings. I begin by showing how compulsory voting as it is practised in
Australia removes many of the common obstacles to voting experienced by citizens in
comparable regimes, thereby enhancing and promoting the right to vote itself. I then
draw on a large body of empirical data to demonstrate how compulsory voting converts
voting from a formal to a material right, subsequently yielding further and demonstrable
rights benefits. In sum, I argue that, in ensuring that almost everyone votes, compulsory
voting engenders a political environment that is especially congenial to the exercise of,
and respect for, a number of key rights.
What rights does (compulsory) voting protect?
Compelling people to vote serves a number of negative and positive rights. Put simply,
the distinction between positive and negative rights is that negative rights (sometimes
referred to as ‘first generation rights’) require others to refrain from interfering with your
actions whereas positive rights require others to provide you with either a good or a
service (see Berlin 1969). The right to vote is a negative right insofar as we have a duty to
refrain from interfering with the actions of people seeking to exercise that right.
The negative rights that are protected by compulsory voting are, first of all, the right
to vote itself. The other kinds of negative or first generation rights served by compulsory
voting include equality rights that guarantee equal citizenship, equality before the law,
and freedom from discrimination. It does so by making governments more responsive to
more people. By reducing bias and discrimination in government policy compulsory
voting is also able to serve rights normally conceived of as ‘positive liberty’rights; these
are ‘social’or ‘welfare’rights that require the provision of things like education for all
children and protections against extreme poverty (Nickel 2006). Compulsory voting
serves these rights either directly or indirectly.
Compulsory voting and the right to vote
The first right promoted by compulsory voting is, curiously, the right to vote itself. It
does this in unexpected ways by removing many of the seen and even unseen obstacles
to voting normally experienced by citizens in voluntary settings.
Before continuing, it should be noted that the Australian Constitution provides no
explicit or definitive provision for the right to vote
4
; however, there is an implied
constitutional protection of a universal franchise in Sections 7 and 24 of the
Constitution, since both require that the Commonwealth Houses of Parliament be
‘directly chosen by the people’(Lange v Australian Broadcasting Corporation 1997).
5
Further, Australia is a signatory to the International Covenant on Civil and Political
Rights, Article 25 of which states that every citizen ‘shall have the right and the
opportunity’without ‘distinctions’and ‘unreasonable restrictions’to ‘vote and to be
elected at genuine periodic elections’.
Compulsory voting was introduced at the federal level in 1924 to address the problem
of low voter turnout, which, prior to introduction, was hovering in the 50 –60% range (RV,
registered voters). It proved to be an extremely decisive and effective remedy with turnout
immediately jumping by 30 percentage points. That increase was no mere spike: the net
190 L. HILL

increase over time has been 30.4 percentage points (Louth and Hill 2005). In the post-war
period the average turnout rate for Australian national elections has remained steady at
between 93% and 95% of registered voters (RV) while the pattern at the state level has
been almost identical.
6
We can compare these figures to the United States and Britain, for
example, which have turnout rates hovering at around 60–65% of registered voters.
Significantly, as I show below, the composition of the electorate in these voluntary
regimes is heavily skewed towards more advantaged citizens, leading to undemocratic
and illiberal biases in rights protection.
Obstacle 1: costs of voting
On paper, then, Australian citizens have a formal entitlement to vote. Yet, declaring the
existence of a right is empty if the opportunity and transaction costs of exercising that
right are too costly. The right to vote should be readily exercisable in order that it is
exercised. In the United States, for example, the costs of voting to individual electors is
quite high due to factors such as registration obstacles, the fact that voting is held on a
weekday and problems associated with poorly resourced electoral administration (lead-
ing to disincentives like long queues and even insufficient quantities of ballot papers). In
Australia, by contrast, the right to vote is readily translated from a formal and negative
right to an exercised ‘material’right
7
because most of the ergonomic and practical
obstacles to voting normally experienced by electors in voluntary systems have already
been eliminated by the state by the time elections take place. Of course, this is not
because of any inherent properties of compulsion, simply that in a properly adminis-
tered system like Australia’s, governments have recognised that they have an obligation
to ensure that the imposed duty to vote is not too onerous to perform, in the same way
that governments provide public schools in order to ensure that the obligation of
compulsory school attendance does not place an undue burden on individual parents.
Due to the fact that people are required to vote, ‘politicians and electoral officials
have gone to considerable lengths’to make voting as simple, accessible and pain-free as
possible (Mackerras and McAllister 1999, 223). The introduction of compulsory voting at
the federal level in 1924 ‘elevated the status of the franchise from a privilege to a duty’;
it also motivated ‘electoral commissions to treat every vote as sacred’and ‘to expend
considerable efforts in ensuring adequate access to the ballot’(Orr, Mercurio, and
Williams 2003, 390). As a result Australia has earned a reputation as ‘probably . . . the
most voter-friendly country in the world’(Mackerras and McAllister 1999, 223).
In Australia the state provides more than just a universal, formal entitlement to vote;
it also practically enables almost everyone to be present on election day. In effect, the
Australian state meets almost all of the opportunity and transaction costs involved so
that individual voters don’t have to. Groups that are particularly targeted for assistance
are precisely the same groups as those that tend to abstain under a voluntary system:
aging and immobile people, the homeless, those living in remote regions, prisoners,
people with a disability, those who are ill or infirm, housebound, hospitalised, living
abroad, approaching maternity, have literacy and numeracy problems or are from a non-
English-speaking background. There are also special provisions for ‘silent enrolment’(for
those concerned that having their name on a public roll endangers themselves or their
families) and itinerant enrolment (‘for homeless people, or people who travel constantly
and have no permanent fixed address’). Australian electoral commissions actively
AUSTRALIAN JOURNAL OF HUMAN RIGHTS 191

facilitate registration; provide electoral education; offer absent voting, mobile polling
and postal voting; ensure that elections are held on a Saturday and that polling booths
are generally close at hand. Over the course of any given Federal election up to 500
mobile teams will visit 2000 special hospital locations; mobile teams will visit 300 or so
remote outback locations and over 40 prisons; there will be hundreds of pre-poll voting
centres and around 100 overseas polling places to which approximately 3 tonnes of
election-related and stafftraining material will be air-freighted immediately prior to
polling. Even Australian citizens living in the Antarctic and based on Antarctic supply
ships will be supplied with voting material and facilities.
8
None of this is to suggest that there are no residual exclusion problems within the
Australian electoral system; there are, and they are not all trivial (see Chappell,
Chesterman, and Hill 2009, Chapter 4 passim). Nevertheless they are not on the scale
of exclusions in voluntary settings.
Here in Australia, no-one, no matter how marginalised, socially or geographically
isolated or immobile, is expected to meet the potentially high transaction and oppor-
tunity costs of voting, costs that the state generally fails to offset in voluntary systems.
These costs are not inconsequential either; in fact many of them are enough to deter
people from voting in voluntary systems. To make matters worse, they are more likely to
affect the disadvantaged.
Something as simple as holding an election on a holiday or weekend can make a big
difference to an individual’s ability to vote. The most cited reason for not voting in US
elections is ‘inability to take offtime from work or school’(Wattenberg 1998,6–7).
According to a comparative study conducted by Mark Franklin, countries that conduct
elections on a weekend or holiday have 6 per cent higher turnout than would otherwise
be expected (Franklin 1996). But in Australia, where voting takes place on the weekend,
polling booths are numerous, close to hand, properly resourced and with very short
queues, costs are vastly reduced.
It is also worth noting that the burden of voting in Australia is still further lightened
by the fact that penalties for non-compliance are applied fairly, flexibly and without zeal.
Failure to vote cases are usually dealt with through ‘please explain’letters provided by
abstainers themselves. This is really just an honour system: if the reasons are deemed by
the relevant electoral commission to be ‘valid and sufficient’no penalty is applicable.
9
Significantly, well below 1% of the Australian electorate is ever faced with a fine or court
attendance in any given election period (Mackerras and McAllister 1999, 224). This
approach to handling abstention not only reduces the imposition on freedom of voting
in Australia, it also undoubtedly helps to keep public approval of compulsory voting
consistently high (see Hill 2004). In any case, voting is so stress-free in Australia that it is
just as easy and less time-consuming to attend a polling place than it is to deal with the
administrative consequences of non-compliance.
Obstacle 2: the irrationality of voting
Compulsory voting also removes another significant but frequently overlooked obstacle
to voting routinely witnessed in voluntary regimes: the irrationality of voting. One of the
most common causes of ‘rational abstention’in voluntary regimes is informational
uncertainty about other potential voters’intentions (by intentions I mean whether or
not they intend to vote at all). Since the voting attendance of other –especially like-
192 L. HILL

minded –electors is assured in compulsory systems, this problem is solved. This claim
needs further unpacking.
It is often claimed that failure to vote is an individual decision, and consistent with
democracy even if it runs counter to an individual’s best interests. On this view, ‘since
democracy is grounded in self-government, in individual liberty, the freedom to make
mistakes would seem to be part of a democratic society’(Dowding, Goodin,
and Pateman 2004, 9). But is abstention –and its self-defeating consequences –really
a positive choice? Further, if it is, why is it a ‘choice’favoured predominantly by the
disadvantaged, which is exactly what happens in voluntary systems?
The answer to this question seems to have little to do with conscious choice. In
voluntary voting systems the disadvantaged are subject to a disabling co-ordination
problem because the norm of voting that exists among educated, prosperous, white
and older citizens has failed to become established among poorer, less well-educated
and younger groups of citizens.
10
Within such social groups it is normal not to vote. In
situations where social norms discourage a particular form of behaviour, it may be
irrational to conflict with the norm, even where the norm has maladaptive, long-term
consequences for members of the non-voting group. Individual members of high-
abstention minorities will make the quite reasonable calculation that it would be irrational
to be the only member of their social group to bother voting. Even if they do not make
this calculation, it would still be true. When a poor, unemployed, lone parent abstains
from voting in a voluntary system, her behaviour is, at once, both rational and irrational.
On the one hand, it would be rational in one sense for her to vote (because doing so
would protect her interests and those of others like her); at the same time, it will only be
rational for her to vote if she can be sure that everyone else in similar circumstances to
hers will have the same idea (realistically, she knows they probably won’t).
The co-ordination problem among habitual non-voters is compounded by the fact
that, in voluntary systems, they are less likely to be targeted by the mobilisation efforts
of parties (Wielhouwer 2000). For example, parties are more likely to contact citizens
from higher socioeconomic status (SES) groups (Gershtenson 2003) while election
advertising is also ‘overwhelmingly’directed at older audiences (Wattenberg 2002, 99).
Low turnout and its attendant dysfunctions have been labelled a case of ‘social
failure’.‘Social failure’occurs when a social norm, which would otherwise maximise a
group’s welfare, fails to emerge and take hold (Hasen 1996, 2135, 2167). Mandatory
voting takes the quiescence-inducing uncertainty out of the decision about whether or
not to bother voting, thereby resolving the social failure problem. It removes the
problem of insufficient information simply by virtue of its existence; knowing that
other voters with similar interests to mine are going to vote overcomes any uncertainty
about the value of my vote, and releases me from having to weigh ‘opportunity costs’
against benefits in an environment where resources and information are scarce. The
single votes of traditional non-voters are no longer isolated drops in oceans; they now
have much greater value because such voters are are already organised into meaningful
blocs of electoral power.
It might be retorted that some non-voting groups are so small and marginalised that
it would make no difference if they bothered to vote. But the interests of such groups
tend to be protected by the legally assured enfranchisement of other, larger groups of
disadvantaged, habitual abstainers like the young, who tend to be more sympathetic to
AUSTRALIAN JOURNAL OF HUMAN RIGHTS 193

the circumstances of other disadvantaged (numerically smaller) minorities like the
unemployed, the homeless, lone parents or indigenous people (Wattenberg 2003).
Obstacle 3: lack of trust in elections
Another invisible barrier to voting participation in most advanced democracies is the
perception that electoral processes and outcomes cannot be trusted. For example,
Grönlund and Setälä’s(2007) cross-national study of the effect of political trust on
election turnout in 22 democracies found that trust in the democratic system has a
significant positive effect on turnout.
But, in Australia, there is a high level of trust around the election process and its
outcomes due, in large part, to the introduction of compulsory voting, which, in turn,
drove the development of unusually high standards of electoral administration by
offices are that are organised, co-operative (despite federalism), professional, properly
funded, independent, accountable and apolitical (Orr, Mercurio, and Williams 2003; Karp
et al. 2016).
11
As a result, Australian elections are generally free from corruption and
rigging scandals (Costar 2009). Between 1998 and 2007 not a single Australian was
prosecuted for multiple voting (JSCEM 2009, 18). This is noteworthy considering that
proof of identity is not required in Australia in order to vote, reflecting the fact that voter
fraud is not a factor in Australian political culture.
Independent inquiries and audits carried out on the integrity of the federal electoral roll
have found that the roll is reliable, accurate and of ‘high integrity’(Costar 2009). Through
its regular habitation reviews and electronic data matching regime, the federal electoral
roll has been well maintained, with the Australian National Audit Office review rating it as
‘over 96% accurate, 95% complete and 99% valid’(Orr, Mercurio, and Williams 2003, 16).
Australian trust in the management and outcomes of elections has therefore con-
tributed substantially to the high rates of compliance with the requirement to vote and
made it easier and more meaningful for electors to turn out to vote. This cannot be
attributed solely to the fact that voting is required because in other compulsory voting
regimes where public trust is low, electors always find ways around the laws in order to
functionally abstain (see Hill and Rutledge-Prior 2016)
Compulsory voting and indirect protection of rights
Compulsory voting not onlydirectly protects the right to vote by rendering its exercise easier
and more meaningful; it also indirectly serves other rights such as the right to be properly
represented and to live free from discrimination. It does this via its superior capacity to allow
the demos –which I define strictly as all, not just some of the (eligible) people –to constitute
and perpetuate democracy, the best constitutional form for the protection of rights. In turn,
the rights of everyone, not just the privileged, are better protected.
When considering the question of whether or not compelling people to vote is a
violation of individual rights, the matter is often framed in terms of two competing sets of
values. The first is the set concerned with personal liberty while the second relates to
democratic legitimacy and vitality. In debates around compulsory voting it is generally
assumed that we can either serve democracy at the cost of freedom or else sacrifice
democratic values for liberal values. But this is a false dichotomy because, conceptually
and practically, democracy and human rights are, to a considerable degree, overlapping.
194 L. HILL

We already know that human rights are better respected in democratic systems, especially
where physical integrity rights are concerned (Davenport 2007;Landman2005;Davenport
and Armstrong 2004). But this positive correlation seems to extend beyond bodily
integrity rights to other basic rights and even some second generation rights. Because
the enjoyment of rights is largely dependent on democratic conditions the strongest
argument for insisting that citizens should be denied the ‘right’to abstain may actually be
based on the importance of rights.
What exactly is the connection between democracy and rights in this context? Although
compulsory voting is often posited by its critics as an infringment on rights, a key rights-
based justification for requiring people to vote can be found in the fact that suffrage is the
sovereign right that protects all other rights. J.S. Mill (1991, 342) regarded the vote as a kind
of insurance policy against state and domestic abuses of power and many have agreed with
him (Mill 1991, 342). The Supreme Court in the United States has repeatedly asserted that
the right to vote is fundamental because it is the ‘preservative of all rights’and ‘the citizen’s
link to his laws and government’(Ciccone 2001–2). Similarly, the European Court of Human
Rights has also determined that the right to vote is a fundamental human right with
universal suffrage the basic underlying principle of its enactment [see Hirst v United
Kingdom (No 2) (2006) 42 EHRR 41 (Grand Chamber), [43] 59]. In a scenario where there is
widespread and persistent failure to express the right to vote there is no check against the
potential tyranny of those in power, especially those seeking to trespass on realms of
individual autonomy. It is for this reason that courts treat voting as a ‘preferred’right
(Douglas 2008).
The catch here is that people actually have to exercise this right in order for it to
provide the powerful protections it can unleash. The determination of courts to protect
the right to vote can not have been motivated by a faith in the potential of voting to
protect rights: rather, they were operating on the belief that citizens would, in fact, be
using suffrage rights for the purposes of self-government and self-protection. Just like
any other right, when the right to vote goes unexercised, it only has ‘formal’existence. It
acquires ‘material’existence when it is actually exercised.
12
Compulsory voting ensures
that the formal right to vote becomes a material right that is able to do its job of
protecting and serving the bearer.
Voting is one of those rights that when persistently unexercised imperils other rights,
such as the right to equal treatment before the law and the right to equality of
opportunity. Protection of these negative rights leads, in turn, to the promotion of
(positive) welfare rights. Compared to groups of habitual voters, failure to vote results
in demonstrably poorer outcomes for non-voters in terms of government attention and
spending; this is a violation of the negative right to equality of treatment.
So, what is the evidence for my claim that compulsory voting is necessary in order to
ensure that the right tovote protect other rights? Why isn’t the formal right to vote enough?
And why must all actually vote in order for rights of all to be adequately protected?
Formal versus substantive right to vote
Most political and legal theorists believe that the only thing that matters where suffrage
rights are concerned is that everyone has the opportunity to vote. In other words, there
should be a universal, formal right to vote, and no-one should be prevented from
AUSTRALIAN JOURNAL OF HUMAN RIGHTS 195

voting; at the same time, no-one should be compelled to exercise this right (Saunders
2010, 75; Brennan 2011). Some within this school argue that low turnout levels have no
effect on political outputs or effects –that is, on the way governments behave (Highton
and Wolfinger 2001, 192; see also Studlar and Welch 1986; Teixeira 1992; Rubenson et al.
2007). Others assert that democracy is still legitimate and fully functioning even where
large numbers of electors do not take up the opportunity to participate (Lever 2010 ).
I disagree and insist that ‘the people’(meaning everyone) should be present on
election day because all the available empirical data point to the fact that an opportu-
nity to vote is not the same as actually voting; that is to say, when turnout is high,
representatives behave differently in formulating policies, allocating resources and
protecting certain rights in a non-discriminatory fashion.
To understand how compulsory voting works to protect substantive rights it is
necessary first to canvass voting trends (and their effects) in established non-
compulsory democracies. In most established, industrialised, voluntary-voting democra-
cies worldwide turnout is low and steadily declining. Worse still, it is declining in a
socially uneven fashion whereby failure to vote is generally –and increasingly –con-
centrated among the poor, the young, the unemployed, the homeless, renters, new
citizens, and people with low literacy, numeracy and majority language competence
(see, for example, Lijphart 1997; Hill 2002; Hill in Brennan and Hill 2014). In other words,
the worse offa person is, the less likely she or he is to vote under a voluntary system.
The low and declining turnout of the badly offis worrying because governments
aremoreattentivetothedemandsofhabitual voting groups such as senior citizens
and the middle classes, at the expense of those who tend to abstain. Representatives
are more likely to represent voters than non-voters (GriffinandNewman2005, 1222)
while voters’preferences count for more (Bullock 1981; Hill and Leighley 1992). This
is hardly surprising; after all, politicians are not irrational –they know who their
customers are. A substantial body of research has found a significant relationship
between voting and the design and implementation of public policies (e.g. Gallego
2010;GriffinandNewman2005;Martin2003,111;Verbaetal.1993;Button1989). In
voluntary systems, because voting is concentrated among the more prosperous
members of society, it exacerbates social inequality by helping ‘those who are
already better off’(Verba and Nie 1972,388).Inotherwords,thosewhovoteare
better served by governments than those who do not. By contrast, in compulsory
systems like Australia’s where voting is universal and socially even, government
attention and spending are more evenly distributed (Birch 2009, 131). As a conse-
quence, low turnout exacerbates and perpetuates social and political inequality
(Lijphart 1997;Hill2002).
This dynamic is strongly reflected in the United States where US counties with
high turnout rates ‘are rewarded with higher per capita federal expenditures’(Martin
2003,110–27, 121). In constituencies where the electoral participation of the dis-
advantaged is greater, welfare policies are more generous, and the state is more
redistributionist(BennettandResnick1990). As Kenworthy and Pontusson (2005,
459) have argued with respect to all wealthy democratic states, voter turnout should
be ‘treated...asaproxyfortheelectoralmobilisationoflowincomeworkers,
condition[ing] the responsiveness of governmentpolicytomarketincomeinequality
trends’. A good example is when African-Americans fully entered the US electorate
196 L. HILL

after the enactment of the Voting Rights Act 1965; after this occured, there was a
measurable improvement in the provision of public services like fire stations, recrea-
tional facilities, street paving and garbage collection in areas dominated by African-
American residents (Keech 1968;Button1989). Although these benefits seem to be
expressions of positive rights, bear in mind that the right to equality of treatment
and to be free from discrimination is a negative right (Nickel 2006). The distinction
between positive and negative rights is obviously an unstable one because in
respecting the negative right to equality of treatment, the enjoyment of positive,
welfare rights is significantly enlarged.
In any case, the Australian setting provides a particularly vivid example of the
connection between voting, government responsiveness and non-discrimination/equal
treatment. When compulsory voting was first introduced in Australia there was a
‘dramatic increase in pension spending’(Fowler 2013). The abrupt influx of less prosper-
ous citizens into the voting process resulted in more even and more democratic
representation and policies. Note that this tendency is particularly strong in compulsory
voting settings. Chong and Olivera’s(2008) cross-country analysis of 91 countries over
the period 1960–2000 indicates that compulsory voting, when properly enforced (as it is
in Australia) ‘improves income distribution’(see also Mueller and Stratman 2003). In
other words, compulsory voting regimes have lower levels of wealth inequality (Birch
2009; Chong and Olivera 2008; Mahler 2008;O’Toole and Strobl 1995) and more social
spending than do voluntary regimes.
Where there is more social spending, there is better education, health care and social
security for everyone; all positive freedoms. But, arguably, when the poor vote it protects
further rights like the negative right to security (protection against murder and crime)
and due process rights that provide protection against abuses of the legal system. This is
because the better offa citizen becomes, the more likely she is to live in a safe
neighbourhood and to be free from legal abuse.
Therefore the political science adage that ‘if you don’t vote, you don’t count’
(Burnham 1987, 99) is confirmed by the empirical studies. We know that politicians
treat concentrations of consistent voters as ‘attentive publics’(Arnold 1990,64–5).
Attentive publics, in turn, enjoy the close attention of politicians. The above claim that
high turnout makes no difference to the way governments think and behave is therefore
questionable. In low turnout elections, greater structural inequalities in procedural input
lead to greater structural inequalities in outputs than those appointed in compulsory
voting elections. Actual participation is superior to the mere opportunity to vote; legal
entitlement to vote is not as optimal as actual voting where rights are concerned
because casting a vote tends to protect the material interests of the social group to
which the elector belongs.
While van Ham and Chappell (2017) note in their introduction that ‘it is still unclear
what causal mechanisms would link democracy to human rights’the data in relation to
turnout and government responsiveness suggest that the mechanism at work here is
the two-way attentiveness stimulated by high levels of voter participation. High turnout
publics are more attentive, which in turn makes governments more attentive to their
publics. Significantly, not only are governments in compulsory voting elections more
responsive to more citizens; empirical data show that citizens in compulsory voting
settings are more watchful of the behaviour of their governments and politics in general
AUSTRALIAN JOURNAL OF HUMAN RIGHTS 197

than are citizens in low turnout settings (Sheppard 2015). Therefore, compulsory voting
may well be a catalyst, not only to enhancing the rights-protecting capacity of vertical
accountability but also to that of ‘diagonal accountability’: knowing that they have to
vote causes Australian citizens to be more receptive to the surveillance of the media
over the behaviour of governments.
As has been shown, compared to groups of habitual voters, failure to vote results in
demonstrably poorer outcomes for non-voters in terms of government attention and
spending. The equality and impartiality principles that lie at the heart of the western
political tradition demand that governments treat every citizen as an equal and ultimate
unit of concern. In other words, we all have a right to equal treatment by governments,
by the law and in our dealings with many other entitities. Morally, of course, govern-
ments are supposed to look after all citizens regardless of whether or not they voted
(and also regardless of whether or not they voted for the winning party). But this is not
what happens in reality. When turnout is low it is invariably socially uneven; this, in turn,
exacerbates disparities in wealth, power, benefits and therefore right protections, spe-
cifically, negative equality rights that guarantee equal citizenship, equality before the
law, and non-discrimination as well as positive rights like ‘social’or ‘welfare rights’that
relate to minimum standards of education, nutrition and quality of life (Nickel 2006).
Like any other right, when the right to vote goes unexercised, it only has ‘formal’
existence. But it acquires ‘material’existence when it is actually exercised by every
eligible citizen, something that is uniquely assured by compulsory voting.
It is no coincidence that compulsory voting regimes enjoy higher levels of citizen
satisfaction with the way the democracy is working than do voluntary voting regimes
(Birch 2009, 140). This is especially true of the Australian case. Australians exhibit high
levels of trust in government compared to citizens in other advanced democracies. They
also report high levels of approval for ‘how well democracy is working’and ‘very low
levels of perceived political corruption’(Donovan, Denemark, and Bowler 2007, 102). In
fact, compulsory voting regimes do have lower levels of corruption than do non-
compulsory regimes (Birch 2009, 132−133). This is doubtlessly related to the fact that
compulsory voting governments are more closely scrutinised by their publics, more
responsive to citizens’preferences and better able to serve the interests of the demos;
after all, corruption, by definition, means that politicians are more likely to be ruling in
their own (and the powerful sectional groups that support them) rather than the public’s
interests (see Buchan and Hill 2014). But in systems where corruption is lower we can
safely conclude that the system is also working more democratically insofar as elected
officals are working more ‘for the people’and less for themselves.
Therefore, it is just wishful thinking to assume that failure to vote is of no conse-
quence because governments ‘should . . . protect our interests’anyway (Lever 2010).
When people abstain, democracy, such as it exists, carries on without the participation of
abstainers, governing them without their consent and without their interests in mind.
Concluding remarks
When it is administered as effectively as it is in Australia, compulsory voting optimises
electoral participation as a ‘vertical accountability’rights-preserving mechanism. In some
respects, therefore, Australia has been an unacknowledged vanguard of human rights. In
198 L. HILL

exploring the manner in which it has achieved this, it becomes apparent that democracy
and rights overlap both conceptually and practically. While their relationship is intimate
and mutually reinforcing, it often goes undetected.
It would be misleading to claim that compulsory voting has rendered Australia free
from rights violations. Yet, it is almost certain that, given our lack of a formal bill of rights,
the situation would be far worse if not for compulsory voting and the high levels of
socially even voting participation it brings with it. This effect has not always been detected
or appreciated because compulsory voting works to protect rights in indirect, subtle,
diffuse and systemic ways: by instantiating the right to vote itself and converting it from a
formal, negative right to a readily exercisable and exercised right, compulsory voting
strengthens the functioning of Australian democracy. This enhances the enjoyment by
Australian citizens of a further range of positive and negative rights, particularly the right
to equal treatment. More generally, the exercise of the right to vote allows us, together, to
constitute the best regime for rights protection: a properly functioning representative
democracy that is better able to serve the interests of all, not just some, of its citizens.
Notes
1. By this I mean democracies characterised by universal suffrage, regular, free and fair
elections, a competitive party system that offers choice, and where citizens enjoy the full
complement of political rights necessary for the conduct of democracy (e.g. freedom of the
press, freedom to dissent and associate). Authentic democracies are contrasted with
nominal democracies that purport to be democratic and may even run elections but lack
all or some of the necessary conditions for democracy as listed above.
2. I employ here the conceptual framework used by van Ham and Chappell (2017), which
posits the existence of three types of democratic accountability for the promotion of
human rights. These are: ‘horizontal accountability’,which‘refers to the rule of law and
the role of the judiciary and integrity institutions’;‘vertical accountability’which refers
to ’elections and the role of citizens‘;and’diagonal accountability‘referring to ’the role
of media and free speech in holding governments to account for human rights’.
3. However, at the state/territory level Victoria and the ACT have introduced two human
rights acts. Note that some advanced democracies enjoy rights protection by virtue of
being members of the European Union. They are therefore protected by EU human rights
laws and charters (thanks to an anonymous referee for the suggestion of this qualification).
4. The Constitution is not entirely devoid of references to voting entitlements. Section 41
contains an express but limited form of protection in providing that: ‘No adult person who
has or acquires the right to vote at elections for the . . . House of the Parliament of a State
shall . . . be prevented by any law of the Commonwealth from voting at elections for either
House of the Parliament of the Commonwealth.’
5. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 557.
6. Note, however, that Indigenous Australians were not required to vote until 1983. Yet, their formal
electoral equality has not translated into equal rates of electoral participation, and Indigenous
Australians continue to vote in lower than average numbers. Reliable figures are elusive, but it
appears that only just over half do so (Chappell, Chesterman, and Hill 2009,90–93).
7. A positive right is a right to be provided with certain goods and services; a right becomes
‘material’when those things are either provided or not prevented from being obtainable
(relative, of course, to the capacity of particular states to do so; see Dowding and van Hees
2003). In such cases the right has been exercised, or is at least readily exercisable. This
enhances what Chappell and van Ham (2017) refer to as ‘rights outcomes’.
AUSTRALIAN JOURNAL OF HUMAN RIGHTS 199

8. Note, however, that voting is not compulsory for Australians living in the Antarctic due to
the impossibility of ensuring that the ballot is secret.
9. ‘Valid and sufficient’reasons may include: ‘Physical obstruction, whether of sickness or outside
prevention,orofnaturalevents,oraccidentofanykind....Onemightalsoimaginecases
where an intending voter on his way to thepoll 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’[AEC (Australian Electoral Commission),
Compulsory Voting Electoral Backgrounder (2014)8(1)http://www.aec.gov.au/About_AEC/
Publications/backgrounders/compulsory-voting.htm]. Initially, the Electoral Commission
sends the absentee a ‘please explain’letter with the option of paying a $20.00-dollar fine to
settle the matter. If a satisfactoryreason for abstention is provided,the matter is dropped, but if
there is a dispute about the reasonableness of the explanation, the non-voter may be taken to
court and a slightly heavier fine imposed ($50.00) in addition to legal costs.
10. That the disposition to vote is partly norm-driven is confirmed by research on voting
behavior and attitudes. See, for example, Smeenk, de Graaf, and Ultee (1995).
11. Even so, it should be noted that, because executive governments have the power to
appoint the heads of electoral commissions ‘bi-partisanship over appointments’can occa-
sionally ‘deteriorat[e]’(Orr, Mercurio, and Williams 2003, 400).
12. As Dowding and Van Hees (2003,281) have argued with respect to rights in general.
Notes on contributor
Lisa Hill is Professor of Politics, University of Adelaide. Her interests are in political theory, history
of political thought and issues in electoral law and behaviour. She has published electoral studies
work in British Journal of Political Science, Political Studies, Australian Journal of Political Science and
Journal of Theoretical Politics.
Disclosure statement
No potential conflict of interest was reported by the author.
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