Wednesday, April 17, 2013
Last Friday, following over two years of lawsuit over failure to participate in general election, Anders Holmdahl attended a High Full Court of Australia hearing with an audio-link from Canberra to Adelaide, South Australia, claiming voting is a right, not a duty, citing the Australian constitution. However the Justices dismissed the application for leave to appeal against conviction, ruling it had “no prospect of success” over a point that the Commonwealth Electoral Act was enacted within power.
Anders Holmdahl was represented by Kevin Borick, QC, the president of the Australian Criminal Lawyers Association, throughout the process.
Anders Holmdahl cited “fundamental distinction” between the words vote, which he defined as “exercise of free will”; right, “something you are privileged to be granted”; and duty, “something you are required to do”. After a 20-minute discourse with the lawyer representing the applicant, Justice Kenneth Hayne said, “An appeal to this Court would enjoy no prospect of success. Special leave to appeal is refused.” and adjourned the Court. Justices Stephen Gageler, Patrick Keane were also present at the hearing and participated in the verbal discourse, also enquiring the lawyer about their reasoning but not specifying reasons other than what Hayne J said. Wikinews contacted both Anders Holmdahl and the High Court and confirmed there was no other documentation of reasons behind the judgment.
The standard High Court procedures involve hearing each matter by a single Justice and only escalating it after a special leave to appeal is granted. The current case had been irregular, as the matter had been escalated to the Full Court (three Justices) directly.
The appeal also had exhausted lower means of appeal before being lodged in High Court; the Supreme Court of South Australia had dismissed it on September 24, 2012. It cited that the Australian Constitution allows each state to enact their own election laws, and the Federal Parliament has the power to make laws “with respect to … matters in respect of which this Constitution makes provision until the Parliament otherwise provides”. The Court concluded that the Commonwealth Electoral Act was legislation enacted within power.
Prior to escalation to the Supreme Full Court of South Australia, in May 2012, a single Justice Gray had forwarded the matter for consideration of Full Court (three Judges) at his discretion. This happened several months after a Magistrate had recorded the conviction following a trial in February 2012. Anders Holmdahl originally pleaded not guilty during his first Magistrates court appearance in December 2011 regarding the August 21, 2010 election.
The electoral system of Australia requires all citizens to enroll. Then they must vote at each general election — election of members of the House of Representatives and Senate of the Parliament of Australia. At the time of the election, Anders Holmdahl was enrolled as an elector on the Commonwealth Electoral Roll for the Division of Hindmarsh.
The High Full Court hearing was a last instance of appeal with further escalation only possible at international level. Anders Holmdahl had decided to take the case before the United Nations Human Rights Council.