Ditchburn v Divisional Returning Officer for Herbert

[1999] HCATrans 206

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
  Brisbane  No B50 of 1998

B e t w e e n -

DONALD KENNETH DITCHBURN

Petitioner

and

THE DIVISIONAL RETURNING OFFICER FOR HERBERT

Respondent

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON THURSDAY, 22 JULY 1999, AT 10.39 AM

Copyright in the High Court of Australia

HIS HONOUR:   Well now, the second of the petitions, Mr Gageler:  Ditchburn v The Divisional Returning Officer for Herbert, you again appear and Mr Ditchburn appears in person.  Do you again apply for leave to be heard on behalf of the Commission?

MR S.J. GAGELER:   I do.  (instructed by the Australian Government Solicitor).

HIS HONOUR:   Yes.  Again, Mr Ditchburn, is there any reason not to give Mr Gageler leave to appear on behalf of the Commission and to make submissions?

MR DITCHBURN:   None, your Honour.

HIS HONOUR:   Yes.  Well, you have that leave, Mr Gageler.  Yes, Mr Gageler.

MR G AGELER:   Your Honour, the substance of this petition is an attack on the validity of the system of preferential voting for the House of Representatives. In substance, it raises no issue of principle different from that which has already been addressed in relation to the other petition. However, in relation to the validity of section 240 of the Act which is directly called into question in this case, it must be pointed out that that was something addressed squarely by all members of the Court in the Full Court decision in Langer v The Commonwealth 186 CLR 302. What was in issue in that case was the validity of another section, section 329A, but in addressing that question of validity, all members of the Court also addressed the validity of section 240 and all members of the Court, including Justice Dawson who dissented on the validity of section 329A, accepted section 240 as being valid. May I give your Honour the page references?

HIS HONOUR:   Please.

MR G AGELER:   In the judgment of the Chief Justice, at page 316 to 317.  It is quite a lengthy passage.  It begins at the top of page 316 in the paragraph referring back to Judd v McKeon and continues over to the foot of page 317.  Then in Justice Dawson’s judgment at the bottom of page 323 ‑ as I said, his Honour dissented in relation to the provision in issue, section 329A, but at the bottom of section 323 his Honour said, in the last three lines, that:

the provision in s 240 for a preferential voting system is clearly within power notwithstanding that it requires a choice to be made in a specified manner –

Then in the joint judgment of Justices Toohey and Gaudron, at page 333, about point 2, the sentence beginning, “In this context”:

and no matter how broadly the words “chosen by the people” are construed, there is nothing to support the view that members who are elected pursuant to a full preferential voting system, or the modified preference voting system effected by ss 240, 268 and 270 of the Act, are not properly described as “chosen by the people”.

There is a lengthy discussion in the judgment of Justice McHugh, beginning at page 338.  The most pertinent passage is probably that at the bottom of page 340 and going on to the top of page 341.  That is the paragraph beginning, “In my opinion”.

HIS HONOUR:   Yes.

MR G AGELER:   Again, there is a lengthy discussion in Justice Gummow’s judgment but it is probably sufficient to refer to the bottom of page 348 which begins with the reference to section 31 of the
Constitution and then over to the top of page 349 where his Honour specifically refers to section 240.

HIS HONOUR:   Yes.  Do any of their Honours expressly deal with the “vote only once” point which Mr Ditchburn seeks to make?  Their Honours seem directed principally, at least, to the question of “directly chosen by the people”, do they not?

MR G AGELER:   They do, your Honour.  Yes, there is no reference to that argument. 

HIS HONOUR:   Firstly, as I understand it, you tell me that I am bound by Langer to hold that a system of preferential voting is validly prescribed by Parliament.

MR G AGELER:   Indeed.

HIS HONOUR:   If, contrary to your principal submission, Langer were to be understood not as giving absolute imprimatur to the preferential voting system but simply to be confined to section 24, what do you say about the “vote only once” contention?

MR G AGELER:   Well, the simple answer to that is that each voter does vote only once; that the preferential voting system is concerned with the recording of the voters’ preferences and nothing more.

HIS HONOUR:   Because Mr Ditchburn had referred me to Quick and Garran in his list of authorities, I had occasion to look at some of the history concerning the “vote only once” provision and at least on one view of the history of that provision, it seems to have been concerned with property franchises in three States, I think it was – three colonies at the time of Federation – which permitted not multiple voting in one electoral district, but voting in more than one electoral district and at least some aspects of the convention debates tend to suggest that, not without controversy, those who contributed to the construction of the Constitution were concerned to strike down that aspect of colonial voting systems.

MR G AGELER:   Yes, was concerned with multiple voting as opposed to multiple preferences.

HIS HONOUR:   Yes.  Now, perhaps Mr Ditchburn will tell me more about the history but that seemed, at least, on what I was able to look at yesterday, to be the principal thrust of it.

MR G AGELER:   Indeed, your Honour, yes.  I have nothing to add, your Honour.

HIS HONOUR:   Yes.  Thank you, Mr Gageler.  Now, Mr Ditchburn, there are two levels of argument against you.  The first level of argument is that I have no choice in the matter; I have to follow Langer.  And the second level of argument would be, as I understand it, that if Langer is confined to section 24, anyway, there is no voting more than once. Now, that is the battleground on which I think you have to join issue. Now, what do you say first about the Langer point?

MR DITCHBURN:   Well, there are a number of factors here:  first, whether you are bound to that decision.  Under the Constitution Act, section 5, it states that:

This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges –

as you are well aware.  “All laws made under the Constitution” I presume would include the Acts Interpretation Act, and I would suggest that you are bound by section 15A of that Act.  It states that:

Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth –

Now, if the decision in Langer is contrary to the Constitution, I think you have a rather invidious position of being bound by two contradictory conditions. But the decision in Langer does differ in some significant ways from the issues that I want to raise. As the learned bloke said, the issue was primarily one of section 329A, which has since been repealed. Well, certainly the interpretation of section 240 did enter into in quite a significant degree.

Now, the principal difference in the argument raised by Langer and by myself centres on the word “directly”. While some members of the Court did refer to “directly chosen by the people”, they made no reference to whether there is any direct or indirect choice involved in interpreting section 240 of the Electoral Act.

Another issue is that apart from Justice Dawson, who found for the plaintiff, section 240 was not construed in the context of section 274. Now, I maintain it must be. Marking votes on a piece of paper, to my mind, does not constitute a vote until those votes are counted. There is little reference made to that section, as I said, apart from Justice Dawson who did consider it in its context.

A third objection is that section 24 of the Constitution was not construed in respect to other sections of the Constitution, particularly section 30, and in the general framework of the Constitution itself, and in this issue I would like to come later to references to the possibility that section 329 of the Electoral Act, as it was then, might constitute a transgression of the implied right to freedom of political communication found in various cases that were named.

I contend that what should have been at issue was that the implied right of freedom of political communication was based on findings by, if memory serves me correctly, all members of the Court in respect to representative democracy, particularly in Australian Capital Television v The Commonwealth.  I would like to have a look at that issue a little later, but firstly I want you to understand that my reasoning has evolved a little since the petition was first lodged.

HIS HONOUR:   Well, as to that, there is at least a view that you are bound by what appears in the petition.  You would need, I think, to be conscious of the existence of that view, that you are limited to what appears in the petition but, for the moment, go on and develop your argument in the way you propose.  Yes.

MR DITCHBURN:   I am aware of section 358 of the Electoral Act but I suggest that the basis of my argument is still to be found in the petition that I have lodged.

I had better get hold of the Electoral Act. Here we are. The essence of my argument is that section 240 is similar to section 239(1). It requires electors to put a sequence of number in all squares in the ballot paper, in other words, put an order of preference for all candidates that are listed.

Now, unless the Electoral Act enables electors to apportion their vote in some way, of which I have seen no reference under section 274 as there is under section 273(8) and (9), then an elector can only vote once by marking his votes in accordance with section 240. Now, obviously, if he were to vote for all the candidates listed in order of preference, he would have to vote numerous times.

But I should also make a point that “voting system” is somewhat misnamed.  In my view, it should be termed a “contingent voting system” because preferences are only counted where there is no absolute majority of votes obtained by any one candidate and, secondly, preferences then are only counted where the elector’s first preference candidate has been excluded from the vote.

If it can be said then that votes are not apportioned under section 274, all first preference votes are counted under section 274(2)(c).  They are then counted a second time under subsection (7); also paragraph (c).

HIS HONOUR:   Well, I understand the way in which the preferential voting system is given effect to at the level of the scrutiny of the vote, Mr Ditchburn.  Why is that a voter voting more than once?  The expression of the voter’s choice may be a complex expression but is there not a single expression of the voter’s choice?

MR DITCHBURN:   If a subsequent preference is counted in addition to the elector’s first preference vote being counted, as appears initially to be the case, in one construction, anyway, under section 274(7)(d), then that elector would have had to have voted more than once except if it is construed that, as stated in the electoral guide to which I referred, that the votes have been transferred from the first preference vote of an excluded candidate, then section 30 would not be transgressed. Right?

HIS HONOUR:   Yes.

MR DITCHBURN:   Now, under section 274(7)(ca) and (d), under subsection (7AA) and (7AC), in order to be elected, a candidate must receive an absolute majority of votes.  So that if a candidate is elected as a result of votes being transferred from other candidates, then that member is elected indirectly, is elected as a consequence of the transfer of votes from excluded candidates.

HIS HONOUR:   A transfer that follows the expression of that voter’s will in relation to the election by the expression of preferences.

MR DITCHBURN:   But the point that I would have liked to have made earlier is that it is not necessarily an expression of that voter’s will, the reason being that any candidate in the order of preference can be conferred with an elector’s vote.  It really depends upon how every other elector in that electorate cast their first preference votes as to which candidate ultimately receivers that elector’s vote.  The elector, marking his ballot paper, has no control over where his vote is actually conferred; which candidate’s vote is actually conferred.  In fact, as - - -

HIS HONOUR:   In the sense that the fate of that vote depends upon the way in which other electors in that division have voted.

MR DITCHBURN:   Right.  So, if their vote is perhaps the sixth or the seventh or the twentieth preference of that candidate – of that elector – and bearing in mind that all preferences must be marked, there is no option, it is more than likely that that elector did not wish to vote for those candidates who are in fact opposing or in opposition to the elector’s views and aspirations being that low on the order of preference.

It has been found – I have lost it now.  In Langer’s Case a couple of the Judges referred to the possibility or the paradox of a candidate being elected on last preferences.  I still have not figured out how this works but I have heard of it occurring before and, in fact, there is one celebrated case in which, in 1962 – the name of the bloke has escaped me - - -

HIS HONOUR:   “Killen, you were magnificent” is the message that came from the then Prime Minister, is it not?  Is that the case that you are thinking of where - - -

MR DITCHBURN:   That is the one.

HIS HONOUR:   - - - Mr Killen was elected on the preferences of the Communist Party.  It is amazing what you can dig out of your memory when you have to, Mr Ditchburn.  Yes?

MR DITCHBURN:   Yes.  I would suggest, though, that what was magnificent was the voting system in that issue and not so much - - -

HIS HONOUR:   I am sure Sir James Killen thought it was, anyway.

MR DITCHBURN:   James Killen, yes.  But it is fairly clear that people who voted for a Communist candidate, it was not their intent, their will, to have their votes counted for someone who, in all appearances, is likely to contradict their views and aspirations.

HIS HONOUR:   Well, those are arguments, are they not, Mr Ditchburn, that are of a political scientific nature rather than arguments about validity under the Constitution. The immediate question under the Constitution is, is the candidate directly chosen and does the elector vote more than once. Now, that is where the killing ground of the case lies.

MR DITCHBURN:   Right.  I submit that a person cannot directly choose a member by voting for another candidate, and that is what is occurring under section 274.

HIS HONOUR:   I understand the argument.

MR DITCHBURN:   Then it comes down to the issue of interpretation of “directly” I would think.  I could refer you to Butterworth’s Dictionary but I am sure you are more familiar with the meaning of the word than I am.

HIS HONOUR:   Yes.  But, again, the argument is a very narrow and confined one, is it not:  is there a direct choice; does the voter vote more than once?  Now, the argument is not one that admits of great elaboration, is it?

MR DITCHBURN:   It does in certain implications.

HIS HONOUR:   Well, the implications of the argument may be profound but the core of the argument is very confined, is it not?

MR DITCHBURN:   Yes, but then there is also the issue of whether section 274 accords with the implication found in sections 7 and 24, that of representative democracy, and I would maintain that representative democracy is impugned by this legislation because it narrows the focus of the members elected to a two-party preferred system.  It denies to minority peoples:  Aborigines, elderly, et cetera, the ability to have an effective vote.  This is the nub of my argument.  I was unable to have an effective vote for the candidate of my choice in the election in Herbert.

HIS HONOUR:   I understand the argument you make.

MR DITCHBURN:   What then I am saying is that the whole basis of our democracy is dependent upon electors being able to voice their concerns by means of the ballot box and being represented in Parliament.  I think it is historically evident that there are so few members of the House of Representatives who have been elected, not as a member of a major political party, that it is hard to construe that the House is, in fact, truly representative of the people.

There are other elements too, as well.  The inherent stability provided by effective representative democracy is impaired by limiting the voter choice.

HIS HONOUR:   But, again, Mr Ditchburn, these are arguments that are of a political rather than legal kind. The question that I have before me is a legal question dependent on the construction of the Constitution. It depends on those two phrases: “directly chosen by the people” and “vote more than once.”

MR DITCHBURN:   Right. Well, I would like to give an argument in reference to the framework of the Constitution in which those provisions apply. This goes to the side of the issue at some State - because the framework that I have in mind is that sections 101 to 104 provide for an independent interstate commission, that is, independent of the executive. Now, the reasons are, basically, about the ability or the powers of the executive, under section 61:

extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.

But says nothing about the laws of a State, how section 101 applies to the provisions of the Constitution:

relating to trade and commerce, and of all laws made thereunder.

Now, I would suggest that those provisions would also include sections 91 and 92; obviously 102 and 104; probably section 99, section 112 and particularly section 113 which only refers to “laws of the State”.

HIS HONOUR:   Well, we seem to straying a very long way away from sections 24 and 30, and I must confine you to the arguments that relate to the operation of those provisions.

MR DITCHBURN:   Right, but I am making the point that because the interstate commission can execute and maintain State, it must be a separate constitutional entity. Now, bearing that in mind, the Constitution therefore provides for a dispersion of powers, not only amongst the seven States, in Chapter V, but the interstate commission in Chapter IV, the judiciary in Chapter III, the Federal Executive Council in Chapter II and, of course, Parliament is in Chapter I.

Now, the powers of Parliament are further dispersed between the Queen, the Senate and the House of Representatives. Also, in Chapter VI, you have a power dispersed in relation to directing new States between the Commonwealth, the States and the people of the States. Under Chapter VIII you have, again, the power to alter the Constitution dispersed between the Houses of Parliament, the Governor‑General and the electors voting both as people of the State and of the Commonwealth.

Now, those same electors vote for the senators of the State and the members of the House of Representatives.  I would therefore suggest that that dispersion of power is dispersed not only to the people as a whole but as to each individual elector referred to under sections 8 and 30.  So, in that context, I would suggest that by denying people with minority views, not only the ability to cast an effective vote for members of the House of Representatives, but also taking away their vote from the candidate that they did choose and passing it straight to the candidates that other electors chose as first preferences or subsequent preference. 

I might also suggest that there are sections of the Electoral Act which prevent people from removing ballot papers and changing them or altering them in any way so that the votes that are cast are the votes that are received by the Electoral Commission.  But the Divisional Returning Officer, in effect, does very much the same thing and I would suggest that there is little or no difference between another person transferring votes away from the intended person and the framework of this under which members of the House of Representatives are elected where votes can be transferred from those people without their consent or without their knowledge.  I think the legislation is truly deceiving in that nature in that most people are unaware that whoever they vote for really depends upon every other person’s vote being in accord with a particular elector’s wishes.

HIS HONOUR:   Yes.  Is there anything else you wish to add, Mr Ditchburn?

MR DITCHBURN:   Yes, there are some general points:  that in forcing electors to vote for all candidates - - -

HIS HONOUR:   Again, these are matters, are they not, that are departing a long way from what is in your petition.  Why should I hear you on these aspects about compulsion?

MR DITCHBURN:   It bears on a condition in which I have made, not very clearly, admittedly, a complaint about - a series of points saying that I have been denied the ability to vote in accordance with my wishes rather than the wishes of other people.  So that in that respect if you have a charismatic person standing for election whose opinions you completely reject, such as some people rejected Pauline Hanson, if a majority of people – well, not necessarily a majority but if a large proportion of people do vote for that charismatic leader, then the chances are that my vote will also go towards electing that leader regardless of whether it is ultimately in the best interests of the country.

HIS HONOUR:   Again, Mr Ditchburn, I think you are straying into political, rather than legal, arguments.  Would you please direct your attention to whether there is anything further you advance in support of your petition against the contentions made by the Electoral Commission.

MR DITCHBURN:   Yes.  Where I alluded to previously about the implication of representative democracy, most, if not all, Judges in ACTV v The Commonwealth made a reference to representative democracy as being the basis of the implied right to freedom of political communication.  Now, I am saying that representative democracy is denied by this legislation.  I would refer you to Justice McHugh’s comments in particular at 108 ALR 664.  It says:

When the Constitution is read as a whole and in the light of the history of constitutional government in Great Britain and the Australian colonies before federation, the proper conclusion to be drawn from the terms of ss 7 and 24 of the Constitution is that the people of Australia have constitutional rights of freedom of participation, association and communication in relation to federal elections.

Now, if that be the case then this legislation denies me those rights.  He goes on to say that:

Section 7 of the Constitution provides that…..Although s 24 does not mention voting, it is plain from the terms of ss 25 and 30 that members of the House of Representatives are to be chosen by votes taken at an election.

And later:

Sections 7 and 24, therefore, confer rights on the people of Australia to choose “directly” the members of both Houses of Parliament by means of votes taken at periodic elections.

Parliament cannot legislate under s 51 so as to derogate from these rights because the powers conferred by s 51 are conferred “subject to this Constitution”. Thus, Parliament could not legislate for election to the Senate or the House of Representatives by means of an electoral college. Legislation of that character would contravene the constitutional requirement that the Senate and the House of Representatives should be “directly” chosen. Nor could the Parliament legislate so as to prevent members of lawful political parties from being elected to Parliament. Legislation of that character would contravene the right of the people to choose the members of the Senate and the House of Representatives from those candidates not disqualified by s 44 of the Constitution from “being chosen” -

There is so much to the case ACTV v The Commonwealth, particularly in regards - - -

HIS HONOUR:   Yes, I am familiar with ACTV.

MR DITCHBURN:   - - - to Justice McHugh but also to the other members of the Court, Chief Justice Mason - - -

HIS HONOUR:   You may take it that I am familiar with ACTV and it is not likely to assist your case to read to me great slabs from ACTV.  What is the point that you wish to make?

MR DITCHBURN:   The point is that sections 7 and 24 have, according to Justice McHugh, an implied right to representative democracy and - - -

HIS HONOUR:   Yes, and the debate which you seek to agitate is whether a preferential voting system is a form of representative democracy that the Constitution permits. Is that right?

MR DITCHBURN:   Right, yes.

HIS HONOUR:   And that turns on whether there is direct choice and voting more than once?

MR DITCHBURN:   Yes.  The voting more than once, I submit, means that it is necessary to construe section 274(7)(b) as a transfer of votes from one candidate to the other.

HIS HONOUR:   I understand what you tell me about the preferential voting system and the allocation of preferences.

MR DITCHBURN:   And that as a consequence a member cannot be directly chosen by electors voting for other candidates.

HIS HONOUR:   I understand the argument.  Now, is there anything else you wish to say in support?

MR DITCHBURN:   Yes, the Electoral Commission referred a great deal to Langer v The Commonwealth. There are some rather anomalous arguments put in that case, not least is one with respect to Chief Justice Brennan who, at page 316, alludes to a judgment in Judd v McKeon, in which they quote the Oxford Dictionary the phrase, “I have given thee thy choice of the manner in which though wilt die”.  That to me seems an entirely inappropriate interpretation for the word “choice” because to equate choosing members of Parliament with dying would be to put the Australian system of voting in the context used in less free countries.

The word “choice” in that quotation relates to the manner, in any case, it does not relate to the inevitability of death.  The manner can be in all different styles and in fact death may even be something - - -

HIS HONOUR:   I think we are getting a long way from the point.  I think we are focusing on a very minor point at the moment.

MR DITCHBURN:   Okay.  He also qualified, on page 317, his finding that:

Provided the prescribed method of voting permits a free choice among the candidates for election, it is within the legislative power of the Parliament.

I submit that the Electoral Act does not provide a free choice of voting among the candidates. That paradox I referred to earlier about voting for last preferences appears on page 330. Justices Toohey and Gaudron made a rather strange distinction between the words used in the Constitution between “elected” and “chosen”. They assert that section 15 supports this. I would suggest from the penultimate paragraph of section 15 that the opposite is the case, that the words “elected” and “chosen” are used interchangeably. They also said, at page 334:

One matter that furthers the democratic process is full, equal and effective participation in the electoral process.

They cannot be full, equal and effective participation in the electoral process if a section of the population has their votes effectively expropriated in order to elect in the manner in which they do not wish to choose.

HIS HONOUR:   Yes.  Well now, Mr Ditchburn, I have given you considerable latitude and considerable time.  Are there other points that you wish to make in support of your petition?  I want to give you a fair opportunity to present your case but necessarily that cannot be unlimited.

MR DITCHBURN:   I understand, your Honour, it is just that I have got myself awfully confused and I had hoped to put this case in a coherent form but - - -

HIS HONOUR:   If I may say so, you have, but is there anything else that you wish to add in support?

MR DITCHBURN:   There were other arguments which I do not know if you want me to pursue.  In Toohey’s Case there was a finding that in the case of ambiguity a decision of the Court should favour a construction which is in accord with treaty obligations.

HIS HONOUR:   Teoh’s Case.  Yes, I am familiar with that chain of authority and you had referred in your list of authority to the International Covenant and I am generally familiar with that.

MR DITCHBURN:   Right.

HIS HONOUR:   It is a matter of some controversy in the Court, I think it is fair to say, what, if any influence, such instruments should have in relation to construing the Constitution, but is the point in the end a point that says that I should construe the Constitution in a way that would give ample freedom of choice to electors in the selection of their representatives?

MR DITCHBURN:   In the terms used in, I think it is Article 25, and I think it refers to Article 2, also, of the International Covenant on Civil and Political Rights. Perhaps you may consider those. I would like to make a point that if the Constitution can be construed in terms which give an effective extension of Parliament’s powers under section 51, such as in the Tasmanian Dam’s Case, then it should also be construed in terms of the conventions which might restrict Parliament’s powers to some extent where they are appropriate in their overall context of the Constitution.

HIS HONOUR:   Yes.  Now, as I say, I think I understand the core of your argument.  I understand the various ways in which you seek to support it.  Is there anything further that can usefully be said without repetition?

MR DITCHBURN:   Yes, I am just trying to check on what does accord with your requirements. Only to the extent that the Constitution should be read in its plain meaning and that applies particularly in the cases of sections 7 and 24. I would also refer you to the Engineers’ Case.  If I can just grab it quickly because it is a quite pertinent case.

HIS HONOUR:   I am not sure that this case is going to depend upon consideration of fundamental issues of constitutional interpretation of the kind that were looked at in Engineers or have since been looked.  In the

end, this case comes down to those two phrases, “directly chosen by the people” and “vote more than once” and that is the nub of the case.  I do not think that it is a case which really requires me to look to fundamentals of approaches to constitutional construction.

MR DITCHBURN:   I would just like to make this one last point.  In the Engineers’ Case at page 150, their Honours, in the majority, refer to Lord Loreburn for the Judicial Committee.  He said that:

In the interpretation of a completely self-governing Constitution founded upon a written organic instrument, such as the British North America Act, if the text is explicit the text is conclusive, alike in what it directs and what it forbids. When the text is ambiguous, as, for example, when the words establishing two mutually exclusive jurisdictions are wide enough to bring a particular power within either, recourse must be had to the context and scheme of the Act.”

And there are other sections I could quote on the following pages.  On page 152:

The one clear line of judicial inquiry as to the meaning of the Constitution must be to read it naturally in the light of the circumstances in which it was made, with knowledge of the combined fabric of the common law, and the statute law which preceded –

and I will not bother you any further.

HIS HONOUR:   Yes.  Thank you, Mr Ditchburn.  Mr Gageler, do you seek to reply?

MR G AGELER:   Four short points, your Honour.  The first is that I pointed out in the first case, and should repeat in this case, that the “vote only once” point was directly addressed by Chief Justice Gibbs in the Soegemeier decision. His Honour said that the point was based on a misunderstanding of, relevantly, section 30 of the Constitution and that section 30 of the Constitution, in his words, simply have no bearing on the question of the validity of the relevant provisions of the Act. That is the first point.

The second point is that in so far as an argument is put that compulsory preferential voting in inconsistent with the phrase, “directly chosen by the people”, that not only is that inconsistent with Langer but it is inconsistent with the earlier judgments of the Court referred to by Chief Justice Brennan at page 316 of Langer; that is, Judd v McKeon and Faderson v Bridger.

The third point is that if and in so far as an argument is sought to be based on the phrase “representative democracy” as used in the earlier decisions in Australian Capital Television and Nationwide News, it is the theme, if not the holding in McGinty v Western Australia, that that phrase has no separate existence and is simply a shorthand expression of what otherwise appears in the Constitution. May I refer your Honour, in 186 CLR, to Chief Justice Brennan’s judgment in McGinty at page 168 and 169 on that point. At about point 2 of page 168, his Honour refers to “Representative democracy” having been:

used as a shorthand description of the form of government prescribed by the Commonwealth Constitution –

and at page 169, at about point 7, his Honour said this:

Although the term “representative democracy” is useful to explain the text on which the implied freedom depends, the term is not to be found in either the Commonwealth Constitution or the Western Australian Constitution. It is logically impermissible to treat “representative democracy” as though it were contained in the Constitution, to attribute to the term a meaning or content derived from sources extrinsic to the Constitution and then to invalidate a law for inconsistency with the meaning or content so attributed.

And then, finally, your Honour, so far as some use is sought to be made of the International Covenant on Civil and Political Rights, no provision of that covenant has been pointed to that would have anything to say about either compulsory voting or preferential voting and, in any event, what your Honour said in the Hindmarsh Island Bridge Case, in the joint judgment with Justice Gummow, was right. If it did have anything to say generally about those topics, it would not be something that bore upon the construction of the Constitution which, of course, dates from 1900.

HIS HONOUR:   Yes, thank you, Mr Gageler.

I would expect to be in a position to give judgment in this matter and in the earlier petition brought by Mr Ditchburn at 2.15 pm this afternoon, and I will stand this and the earlier matter over until 2.15 pm this afternoon.  Do you understand that, Mr Ditchburn?  I will give judgment in both of these matters at 2.15 this afternoon.

MR DITCHBURN:   I am concerned about costs, your Honour.

HIS HONOUR:   Yes.  Well, if any question of costs arises, those will be questions that are argued at that time.

MR DITCHBURN:   Right, your Honour.

HIS HONOUR:   I will adjourn to enable the video link to be established to Darwin, and proceed with that matter once that is established.  I will adjourn temporarily.

AT 11.44 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.36 PM:

HIS HONOUR:   On 7 December 1998, Donald Kenneth Ditchburn filed an Election Petition pursuant to Div 1 of Pt XXII of the Electoral Act 1918 (Cth) ("the Act").  The petition was said to concern "the election for the House of Representatives seat for the Division of Herbert held on Saturday, 3 October 1998"  It alleged that the petitioner is enrolled in the Federal Division of Herbert in the State of Queensland and it appears from other allegations in the petition that he was eligible to vote in that Division in the election held on 3 October 1998.

The Australian Electoral Commission seeks leave to enter an appearance in the proceeding and to be represented and be heard.  It seeks an order under O 16 r 4 of the High Court Rules that the name of the respondent to the petition be struck out.  It also seeks an order dismissing the petition or staying proceedings on the petition on the ground either that there is no reasonable or probable cause of action or suit or that the proceeding is an abuse of the process of the Court.

As was the case in the other electoral petition which was instituted by Mr Ditchburn and with which I have dealt today, Ditchburn v  Australian Electoral Officer for Queensland [1999] HCA, no reason was offered why the Commission should not have the leave it sought (under s 359 of the Act) and accordingly leave was given for it to appear, be represented and heard on the petition.  Again, however, I need form no view on whether the respondent named in the petition was "improperly joined" within the meaning of O 16 r 4 of the Rules.

The petitioner seeks to contend that the system of preferential voting for candidates in House of Representatives elections is contrary to the requirements of s 24 of the Constitution that the members of that House be "directly chosen by the people" and s 30 of the Constitution that "in the choosing of members each elector shall vote only once". In particular he alleges that ss 240(1)(b), 240(2), 274(7)(d), 274(7AA), 274(7AB) and 274(7AC) of the Act are invalid and he seeks a declaration to that effect and "an order to annul the election of the Member for Herbert declared elected by the Divisional Returning Officer for Herbert" pursuant to these provisions.

The essence of the argument which the petitioner advances is stated in the petition in the following way:

"Electors (like me) whose first preference for a minor party candidate was initially counted as their vote, also had their ballot papers counted for their second, third or fourth etc preference candidates, and those candidates substituted by the DRO as the electors' alternative votes.

As an elector's vote can be ascribed to any candidate in his/her order of preference, it follows that the elector must simultaneously vote for all candidates indicated on his ballot paper.  Under this construction, if electors only vote for their first preference, subsequent preferences should not be counted.

Thus Section 274 of the Act has the effect of making the preferences each elector indicates pursuant to Section 240(1)(b) into multiple votes for the one vacant seat.

This construction conflicts with the express and implied provisions of Section 30 of the Constitution of the Commonwealth of Australia which requires in part 'but in the choosing of members each elector shall vote only once'.

But if Section 274 of the Act is construed as requiring the Divisional Returning Officer to 'transfer' the first preference votes of excluded candidates to opponents, the DRO acts as an intermediary (or agent) in the voters' choosing of members of the House of Representatives.

The intervention of the DRO actually determines which of any electors preferences is finally accepted in the count of votes, and thus determines which candidate the elector actually chooses.

Consequently the intervention or agency of an officer of the Crown in the choosing of members means that such members are indirectly chosen by electors whose votes were transferred from excluded candidates. This requirement of the Act conflicts with the first provision of Section 24 of the Constitution."

In my opinion these arguments are not tenable.  Some other arguments, not raised by the petition, were mentioned by the petitioner in oral argument.  They were, by and large, arguments of a political rather than legal nature.  Even if open to the petitioner, sections 355, 358, they do not assist in resolving the constitutional issues that the petitioner sought to raise.

In Langer v The Commonwealth (1996) 186 CLR 302 at least five members of the Court held, at 316-317 per Brennan CJ, 333 per Toohey and Gaudron JJ, 348-349 per Gummow J, that s 240 of the Act was a valid law within ss 31 and 51(xxxvi) of the Constitution and was not inconsistent with the requirement of s 24 that the House of Representatives shall be comprised of members "directly chosen by the people of the Commonwealth". See also Judd v McKeon (1926) 38 CLR 380; Faderson v Bridger (1971) 126 CLR 271. And it may well be that the other two members of the Court were of the same opinion, at 323 per Dawson J, 340-341 per McHugh J. The argument which the petitioner seeks to advance is, at least to the extent that he relies on s 24, an argument which I am bound to hold would fail. Even if Langer does not decide the further point on which the petitioner seeks to rely (that under the preferential voting system a voter votes more than once, contrary to s 30) that contention is one which must fail.

Prior to federation, plural voting related to property qualification was allowed in Tasmania, Western Australia and Queensland, Attorney-General (Cth); Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 at 19 per Barwick CJ; McGinty v Western Australia (1996) 186 CLR 140 at 281-282 per Gummow J. It is clear from the Debates at the 1891 Convention in Sydney that the question of plural voting was well in the minds of the members of the Constitutional Conventions from which the terms of the Constitution emerged, Official Record of the Debates of the Australasian Federal Convention, (Sydney) 1891, vol 1, 613-617.  But the plural voting then under consideration permitted a voter to cast more than one expression of his or (in South Australia and Western Australia) her choice of candidate.

The preferential voting system was provided for House of Representatives elections by s 124 of the CommonwealthElectoral Act 1918 and for the Senate by s 7 of the CommonwealthElectoral Act 1919. As McHugh J noted in Langer v The Commonwealth at 342 "Compulsory preferential voting does not appear to have been introduced into Australia until 1911 when it was introduced in Western Australia. But optional preferential voting was used in Queensland after 1892". Even so, the Constitution that emerged from the Constitutional Conventions "did not entrench the secret ballot, compulsory voting, preferential or proportional voting", McGinty v Western Australia (1996) 186 CLR 140 at 283 per Gummow J. All that was said (so far as presently relevant) was that the members of the House of Representatives were to be "directly chosen by the people", section 24, that until the Parliament otherwise provides "the qualification of electors of members of the House of Representatives shall be in each State that which is prescribed by the law of the State as the qualification of electors of the more numerous House of Parliament of the State", section 30, and that "in the choosing of members each elector shall vote only once", section 30.

The petitioner placed some emphasis on what was said by McHugh J in Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 228-233 about "representative government". But as Brennan CJ pointed out in McGinty v Western Australia at 169 the expressions "representative government" and "representative democracy" are not found in the Constitution and although they are useful terms to describe the effect of ss 7 and 24 "[i]t is logically impermissible to treat 'representative democracy' as though it were contained in the Constitution, to attribute to the term a meaning or content derived from sources extrinsic to the Constitution and then to invalidate a law for inconsistency with the meaning or content so attributed."

The requirements that members be "directly chosen" and that "each elector shall vote only once" do not preclude the Parliament from providing (as it has) for a compulsory preferential voting system, Langer v The Commonwealth; Soegemeier v Macklin (1985) 58 ALR 768. Under that system each elector casts but one expression of his or her choice of member in one electoral division. The choice is expressed in a complex way but it remains a single expression of the will of that voter. And, perhaps more relevantly, the voter cannot cast a vote in more than one electoral district as voters could in those Colonies that permitted plural voting related to property qualifications. The voter votes only once.

No doubt it is right to say, as the petitioner does, that the distribution of preferences requires electoral officers to undertake the process prescribed in those parts of s 274 which deal with that subject. But the performance of those tasks does not mean that the member is not "directly chosen" as that expression is used in s 24.

The petition cannot succeed.  It should be dismissed.

Mr Gageler.

MR GAGELER:   I seek the costs of the named respondent and of the Australian Electoral Commission.

HIS HONOUR:   Mr Ditchburn, is there anything further than you said in relation to the earlier petition that you would say in answer to the application for costs?

MR DITCHBURN:   Only in respect of the fact that I have already incurred considerable amount of money in travel expenses and preparing for this case.

HIS HONOUR:   Yes.  Thank you, Mr Ditchburn.

In my opinion, the matters urged by the petitioner provide no sufficient reason to permit departure from the general rule that costs follow the event.  The orders are:

1.  Petition dismissed.

2.  Petitioner to pay costs of respondent and of Australian Electoral Commission.

I will adjourn.

AT 2.49 PM THE MATTER WAS CONCLUDED