Keating v Dickson

[1991] HCATrans 148

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S63 of 1991

B e t w e e n -

ANTHONY KEATING

Applicant

and

EDWARD IAN DICKSON

First Respondent

GREGORY J. MURNANE

Second Respondent

THE STATE OF NEW SOUTH WALES

Third Respondent

PETER T. BLACKMORE

Fourth Respondent

Application for special

leave to q.ppeal

MASON CJ DAWSON J McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 7 JUNE 1991, AT 9.04 AM

Copyright in the High Court of Australia

Keating 1 7/6/91

MR D.F. JACKSON, QC:  May it please the Court, I appear with

my learned friends, MR J. McCARTHY, QC, MR C.

ARMITAGE and MR J. HATZISTERGOS, for the applicant.

(instructed by McClellands)

MR K. MASON, QC, Solicitor-General for New South Wales: I

appear with my learned friend, MR L. KATZ, for the

first, second and third respondents, the first and

second respondents submitting. (instructed by the

Crown Solicitor for the State of New South Wales)

MASON CJ: Yes, Mr Jackson.

MR JACKSON:  May it please the Court, may I hand to the

Court a copy of our outline of submissions.

Your Honours, as the Court will see, the issue upon

which the applicant seeks to obtain the grant of

special leave is whether section 122A(4) of the

Parliamentary Electorates and Elections Act 1912 is

a valid enactment of the legislature of

New South Wales.

Your Honours, may I indicate the course which

I propose to take in making these submissions, and

that is, if I could indicate first the terms of the

provisions which give rise to the issue; secondly,

move to indicate that the issue is one of great

public importance and, Your Honours, it is an issue

which, if I could paraphrase - - -

MASON CJ:  You need not trouble with the public importance

aspect of the application, Mr Jackson.

MR JACKSON:  Your Honours, may I move immediately then to

the terms of the enactments and there are two

enactments to which it is necessary to direct

attention. They are the Constitution Act 1902 and

the Parliamentary Electorates and Elections Act,

and may I go first, Your Honours, to the

Constitution Act.

That Act contains several provisions which are

material for present purposes. The first is

section llB which is at page 14 of the pamphlet,

and Your Honours, it makes compulsory voting for

both Houses of the Parliament. I should go from

that to section 7B(l), and Your Honours will see section 7B(l) at page 7. Now, section 7B(l), as Your Honours will see, refers to section llB and to

a number of other provisions, and section 7B(l)

refers to any -

Bill that -

(a) expressly or impliedly repeals -

Keating 2 7/6/91

the provisions which are set out in

section 7B(l)(a). It requires that such a bill be

one which is "approved by the electors" before the

royal assent is given. And Your Honours, the

procedure was not followed in respect of the

statutory provision in question.

Your Honours will see also that section 7B(7) on page 8 excludes from the operation of

section 7B(l) laws which, to put it shortly, are of
the nature referred to in section 29(2) to which I

will come in a moment.

Now, Your Honours, the other provisions

referred to in section 7B(l), that is, sections 26,

27, 28, 29 and the Seventh Schedule, all deal with

the legislative assembly, and the important

provisions for present purposes are those which

Your Honours will see in two parts of the

enactment, section 29 first and then the Seventh

Schedule.

May I go to section 29(1) which is set out at

page 30. Your Honours, section 29(1) is a

constitutional imperative. It says that:

Elections of Members of the Legislative

Assembly shall be conducted in accordance with

the provisions of the Seventh Schedule.

And Your Honours, section 29(2) operates as a

qualification in a sense in that it says:

Subsection (1) does not limit the power of the

Legislature to make laws ..... for or with respect to the conduct of elections of Members of the Legislative Assembly.

But the ambit of the power so to do is itself

limited, indeed very limited, by the words in

parenthesis in section 29(2), that is, that such a

law must be a law which does not -

expressly or impliedly repeal or amend any of
the provisions of the Seventh Schedule and are

not inconsistent with any of those provisions.

Now, Your Honours, could I go from that to the

terms of the Seventh Schedule which Your Honours

will see at page 46. The schedule is divided into

two parts, Parts 1 and 2, and Part 1 deals with a

method of voting for members of the legislative

assembly. The method to which it refers is that

which is often referred to as optional,

preferential voting. Part 2 deals with the method of counting of votes, and goes into some detail in relation to the manner in which the voting is to be

Keating 3 7/6/91

counted. But the provision of critical importance

for present purposes is clause 1 of the schedule,

and at the heart of the case is the submission

which we make concerning it, and that is, that the

terms of clause 1 deal with both aspects of the

concept described as optional preferential voting.

One aspect is that clause 1 says that a voter

must -

vote for 1 candidate and no more.

The other is that the voter is empowered by the

clause to vote preferentially for more candidates

if the voter chooses. And in relation to the

latter matter, in our submission, the legislature

is empowered to make such laws in addition to those

in Part 2 as may be necessary or desirable to

implement the preferential system. And

Your Honours, to put it in a textual way, if one

looks at the terms of clause 1, our submission is

that the words -

so as to indicate -

et cetera - that is, the words following the comma

in clause 1, qualify the second part of the

preceding part of the clause, not both parts going

before it.

MASON CJ: But to achieve that is not sufficient for your

point of view, is it? You have to distil out of

the first part of the clause a guarantee and a
guarantee that extends to the exercise of the right

to vote or the obligation to vote in such a way as is sufficient to manifest an intention on the part

of the voter.

MR JACKSON:  Yes, Your Honour, and that is what we

would - and I will come to that in just a moment if

I may. There really are, as Your Honour puts to

me, two issues: the first is the question of

construction, namely do the words following the
comma apply to both the earlier parts of the clause or not? The second is, assuming in our favour that

they do not, what then is the interpretation of the

first part, and namely, what is the content of the

concept "record a vote''? And our submission will

be that what that concept means is that a voter is

entitled to vote in a way which makes clear what

the voter is doing, but a vote is not bad just

because it is not done in a particular way. In

other words there is a constitutional guarantee, as

Your Honour put it, in respect of that part.

McHUGH J: But 122A(4) does not prevent the voter recording

his vote for one candidate and no more. He can put

Keating 4 7/6/91

a tick there. He can do what he likes, but what

122A(4) says is that when it comes to the scrutiny you do not accept that as a vote. What difference

is there between what 122A(4) does and a provision

which says that, "If the elector writes his name on

the ballot paper it shall be informal"?

MR JACKSON: Well, there is a difference, Your Honour, in

this way.	May I say there are really two different
concepts, if I can put it that way.	Your Honour,

what I mean by that is this: if a voter is in a

position where a voter - leaving aside writing his

own name on it, which really takes one into a

slightly different area - indicates on a ballot

paper that he is voting for a particular candidate

and does it, for example, by a tick, cross, "l" or any of the ways in which one might do so, then, we

would submit, that is something which is, under the

general law, a vote in favour of a particular
candidate, and is something contemplated by the

concept "record a vote".

McHUGH J:  Mr Jackson, if your argument is correct on this

point, then section 103(2) must have been invalid

between 1979 and 1982 ..

MR JACKSON:  No, Your Honour, the reason being the presence of section 122A(l).

McHUGH J: But it did not come into existence until 1982.

MR JACKSON:	Yes, it did, Your Honour.
McHUGH J:	Was it there in 1979?

MR JACKSON: Section 122A(l), Your Honour, has been there

since 1926.

McHUGH J: But subsection (4)?

MR JACKSON:  No, Your Honour. Subsection (4) has been there

since 1990. Might I say something about the

history of it, Your Honour?

MCHUGH J: Yes.

MR JACKSON: Perhaps I could give Your Honours a piece of

paper which does contain the history.	I am afraid
it is handwritten.	I am not going to take

Your Honours through it, but it may provide a

reference point if Your Honours need to look at it.

The position so far as - if I could go to section 122A - I wonder if I might take

Your Honours to the text of it. It is at page 126

of the Act. Section 122A(l) has been there since

1926, and Your Honours, it always provided that:

Keating 7/6/91

Notwithstanding anything to the contrary in

this Act, a ballot-paper shall not, by reason of any marking thereon that is not authorized

or required by this Act, be treated as

informal, or be rejected or disallowed at the

scrutiny, if, in the opinion of the returning

officer, the voter's intention is clearly

indicated on the ballot paper.

Your Honours, that has been there during the same

time as the provision to which Your Honour

Justice McHugh just referred, that is, section 103

and also section 122(l)(b). So that one has always
had to read the two together, and even though there

have been prescriptions as to the particular manner

of doing it, it has always been subject to the

operation of section 122A(l).

However, Your Honours, what one has had is,

since 1979, a section 122A which has taken three

relevant forms.	When it was first enacted it
contained no provision such as 122A(4).	A couple

of years later a section 122A(4) was introduced

which, in effect, was the reverse of the present

one and then in 1990 there was the change to the

form which it now has. Your Honours, it is

section 122A(4), of course, which is the provision

which, it is submitted, contravenes the terms of

the opening part of clause 1.

So, if I could go from that then to two

things, Your Honours, which are ultimately, as

Your Honour the Chief Justice put to me, the issues

of the case.	The first is the meaning to be
attributed to clause 1.	The second is the question

of the meaning of the concept "record a vote".

Now, Your Honours, as to the first of those matters, the reasoning of the Court of Appeal -

which was against us, of course - appears in the

record at page 22, commencing at line 10, and going

through to page 23, about line 5. It is described

as being the main objection to the plaintiff's

argument and, Your Honours, it is simply, if I may

say so with respect, the adoption by the Court of

Appeal of one of the two possible views of the

operation of the provision. Your Honours will see

that, between lines 18 and about 25 it said:

The words at the end of clause l ..... relate to

thew le of the single subject matter dealt

with_ the clause.

Now, Your Honours, with respect, there is no

difficulty at all, in our submission, in taking the

opposite view, namely, that as a matter of

construction the words after the comma in clause 1

Keating 6 7/6/91

relate only to the case where it is necessary for

the legislature to indicate how to show preference

among numerous candidates standing for election in

one member seats. Your Honours, the words

naturally seem to be related to that, that is:

shall be permitted to record his vote for as

many more candidates as he pleases -

and then it goes on to say -

so as to indicate in such manner as may be

provided by law the candidates for whom he

votes and the order of his preferences for

them.

McHUGH J:  The last words "order of his preferences for

them" strongly support your construction.

MR JACKSON:	Yes, Your Honour.
McHUGH J:	The Court of Appeal does not really seem to deal with that.
MR JACKSON:	No, it does not, Your Honour. That is what I

was saying a moment ago, that what the Court of

Appeal has done, really, has been simply to state

that it prefers a possible view without giving, in
our submission, reasons for it. But there are some
reasons, I think it right to say, and Your Honours

will see those at the bottom of page 22,

where - - -

MASON CJ: Before you get to that, what do you say about the

reliance on the punctuation?

MR JACKSON:	Your Honour, there is no doubt the court is entitled to rely on the punctuation. But, having
said that - - -

MASON CJ: Yes, I was not

MR JACKSON:	No, Your Honour, but, having said that, what emerges from it - and I do not mean to be in the
slightest degree facetious in saying it - is that
one has words which qualify, potentially, either or
both the two preceding concepts. But, Your Honour,
it is certainly not anything that indicates with
any degree of definiteness one way or the other.
We would simply say about it, I suppose, that the
comma is in a natural place but the fact that it is
there supports certainly not the opposing argument
and does not in any way detract from ours.

Your Honours, if I could just say, in relation

to the content of what follows the comma - which

is, of course, the clause of importance - it is

Keating 7 7/6/91

framed in terms which seem to be, both as a matter

of their substance and as a matter of the actual

words used, related to the second part or the part

which precedes. Your Honours will see that, at the

bottom of page 22, Their Honours said:

The use of the word "candidates" in the

plural -

creates -

no difficulty.

And then Your Honours will see the reference to

the Acts Interpretation Act, going on to the top

of the next page. Your Honours, may we say two

things about that? The first is - and I might,

perhaps, say it in passing - that one must doubt,
with respect, the potential application to an

entrenched constitutional provision of an Acts

Interpretation Act.

The second is that, in any event, the terms of the Acts Interpretation Act must bend to context.

If one is looking at a provision like clause 1 then

one would think the place to look, when it is

talking about a constitutional guarantee which it

is, undoubtedly, in some respects at least, is at

the wording of it and to see the object which it

seeks to attain.

McHUGH J:  Where "candidates" is first used it must be used

in the plural.

MR JACKSON:  Yes, Your Honour, there is no doubt about that,

with respect. Now, Your Honours, the next matter

with which I wish to deal concerns some further

observations of the Court of Appeal, which appear

at page 23. Those observations immediately follow

the passage to which I had just referred, and Their

Honours said that:  At all relevant times, before and since

1979, the Parliamentary Electorates and

Elections Act has regulated in considerable

detail the manner of expression of a voter's

wishes.

And Their Honours go on. Your Honours, may we say

in relation to that, first, that section 122A{l)

has been in the Act since 1926. The second thing

is that there have been two periods in which, since

that time, there has been optional preferential

voting.	The first period was a short period from
1926 to 1928.	The second period is from 1979 to
the present.

Keating 7/6/91

During that period, Your Honours,

section 122A(l) has had the fullest operation. In

times, of course, when optional preferential voting

has not been available it is necessary, of course,

to have some legislative prescription of the method

of voting so that the preferences can be indicated.

But, Your Honours, even during that period section

122A(l) has operated so that if, for example,

instead of writing 1, 2, 3, 4, 5, a voter put A, B,

C, D, E, one would think that section 122A(l) would

operate so as not to invalidate that vote.

Now, Your Honours, the next matter with which

the court dealt appears at the bottom of page 23

and goes on to line 16 on page 24. The reference

to the use of the expression "record a vote" in

section 120A and the movement over, or the use of a

similar expression in clause 1, Your Honour, cannot

really take the matter very far when one is

bringing into being a system which is entirely

different, as was occurring in 1979.

The last thing I wish to say about the court's

reasons for decision concerns what appears at

page 24, line 18, through to page 25, line 18. In
particular, Your Honours, the court said, at the

top of page 25:

It is not easy to understand how a law which

does not take away the essential right to
record a vote for one candidate but merely
regulates the manner of the exercise of it, or

provides for the conduct of returning officers

in making a decision as to which votes are

formal, is inco.nsistent with what is said to

be the first part of clause 1.

Your Honours, what we would simply say about this

is: if the terms of section 122A(4) take away a

right to vote in a constitutionally permitted

manner they are inconsistent with the terms of

clause 1.

May I move from that to the second issue which

arises in connection with the correctness of the

judgment of the Court of Appeal?

Your Honours, in that regard, our submission

is that the law applicable generally, in relation

to voting, is that provisions as to the manner of

voting are, generally speaking, to be treated as

directory, rather than mandatory. Secondly,

because of that it is necessary to determine what

can amount to a sufficient compliance and in that

regard it is a sufficient compliance with the

Keating 9 7/6/91

requirement to vote if the voter clearly indicates

the voter's intention.

May I take Your Honours - and I will do so as

briefly as I may - to a number of indications of

that in a number of different jurisdictions where

the issue has been considered. Your Honours, the

first is, if I could hand to Your Honours - may I

give Your Honours first - Your Honours, all these

references to which I am about to refer are in

papers that have been given to the Court. The

first reference, Your Honours, is 15 Halsbury,

fourth edition, paragraph 635, and Your Honours

will see a statement of the broad position in the

first paragraph under the heading:

Ballot papers rejected for uncertainty. A

ballot paper which is unmarked or void for

uncertainty is void and must not be counted,

but a ballot paper on which a vote is marked

elsewhere than in the proper place, or

otherwise than by means of a cross or by more

than one mark is not be reason of it to be

deemed to be void (either wholly or as

respects that vote) if an intention that the
vote shall be for one or other of the
candidates, or ..... for or against any
question, clearly appears.

Your Honours, that is of course a very broad statement of the position.

DAWSON J: But they seem to be referring to rules there,

when one looks at the footnote.

MR JACKSON:  Your Honour, could I just say this? in respect of virtually every kind of election, One sees,

that there are some rules governing the forms to be

adopted in an election. The underlying - - -

DAWSON J:  In other words, you really do have to have some

rules governing the manner in which a person

records his vote.

MR JACKSON: Well, Your Honour, one has to have rules about

conducting an election and, Your Honour, what I

mean by that is that there is a necessity to have

rules such as where the poll is to be conducted;

what type of ballot paper, perhaps, to go a little
way along the track; how many candidates there may

be; many things like that, Your Honour, I would not

question. There is, of course, a great limitation

in the present case upon what there may be because

of the provisions of Part 2 of the Seventh

Schedule, which set out a lot which limits the

legislative power very considerably.

Keating 10 7/6/91

But having said that, Your Honour, and corning

back to the point Your Honour was raising with me,

the position really is that one always tends to

find some provisions relating to an election, but
what the cases seem to say is this, that unless it

is apparent from the terms of the statute that it

is to be mandatory and it is necessary for the
statute, in effect, to make it mandatory, a vote

will be sufficient, if what the voter has done has been to indicate clearly the person for whom he is

voting. Now, Your Honours, that is, in our

submission, the core of the concept of recording a

vote. Now, it is possible, of course, for there to

be statutory provisions which make it mandatory to

vote in a particular way and, Your Honours, when
one gets to provisions which deal with preferential
voting, compulsory preferential voting, then the

need for there to be provisions requiring a vote to

be recorded in a particular way tends to become

obvious. But, Your Honours, whilst that is

necessary in some cases, no doubt, as a practical

matter, it is not at the core of recording a vote.

Your Honours, may I move from that to a number

of case, and I will do so, as I said, very

quickly.The first is a decision in New Zealand,

Wybrow v Chief Electoral Officer, (1980) 1 NZLR 147 and I was going to refer Your Honours to pages 156
and 157. Your Honours will see at page 156, in the

first new paragraph on the page, there is a

reference to Bagley's case where it said, and the

court adopts the correctness of this, that:

Chapman J considered that the Provincial

Council could have no other object than to

ascertain with certainty the elector's

intention, and that if a single well-defined

stroke -

et cetera, and goes on to say:

The Ordinance, he said, was designed to

facilitate, not to obstruct, the recording of

every citizen's vote, and therefore -

a broad interpretation should be given. At

page 157, Your Honours will see, about line 12, a

reference to O'Brien v Seddon and the passage

quoted from that judgment also records conveniently

the relevant passages from one of the leading cases

in England on the topic. That is the Cirencester

case, and Your Honours will see, commencing about

line 30, the quotation from the New Zealand case:

"The question which is one of fact, is:

Has the elector fairly indicated the candidate for whom he desired to vote?

Keating 11 7/6/91

And, Your Honours, it is said:

"The same principle was adopted in

England ..... in the Cirencester case.

And I invite Your Honours to read the remainder of

that page and the quotation going down to about

line 30 on page 158. Your Honours will see a

reference at about line 30 to 40 on the same page

to the distinction between mandatory and directory

provisions of the kind referred to. Your Honours,

at page 159, about line 45, the reference to the

legislative origins of the clear indication test,

and Your Honours, what that seems to mean is two

things. One is that generally speaking a concept

of voting at a ballot brought in by legislature

will be satisfied and, indeed, the object of it

will be attained i: a voter gives a clear

indication of his vote by any means. The second

thing is that a provision dealing with voting will

not be treated as mandatory unless it is apparent

that it is so and one cannot get such an indication

from clause 1.

Your Honours, may I move from that to

Phillips v Goff, (1886) 17 QBD 805. Now,

Your Honours, may I give two references? The first

is at page 812, about point 3, where there is a

reference to Woodward v Sarsons, and the passage

going to about half-way down the page. Now that is

a general statement of the position and then,

Your Honours, at page 813, Lord Coleridge said, in

the first new paragraph on the page, that principle

should be applied, and said that he thought:

that if a voter indicates with reasonable

vote, and how many votes he intends to give to each of them, the enactments of the Ballot	clearness for which candidates he intends to directions of the order made by the Education
Department may be construed -

et cetera, to the end of that sentence.

Your Honours, the approach in that case was

adopted by Justice Isaacs in Kean v Kerby, (1920)

27 CLR 449, and His Honour was there sitting as a

Court of Disputed Returns, and may I refer

Your Honours to the passage at page 466, commencing

four or five lines from the bottom of the page,

where His Honour referred to the principle and the

passage goes on to page 467, about point three,

where, after referring to Woodward v Sarsons,

His Honour says:

Substantially I agree with that.

Keating 12 7/6/91

Your Honours, may I say, in relation to the

right to vote and the context in which the matter

appears, that as Your Honours will see at page 459,

what we would submit is - at the bottom of the

page, the last five lines - the underlying
principle to be applied in construing a provision
such as clause 1, namely that the right of
franchise is the most important of all the public
rights of a member of a self-governing community
and that the ballot, being a means of protecting
the franchise, should not be made an instrument to

defeat it.

Your Honours, in the United States - and I

have nearly concluded what I am doing on this
point - the law is as summarized in 26 American
Jurisprudence, Second Series, Article 258.

Your Honours will see in the commencing part of

that article:

As a general rule, if a voter affixes any

mark to his ballot which fairly indicates his
intention, the ballot will be given effect

unless a mandatory provision of the election

law is violated.

There are references then to note 2, and may I take

Your Honours very briefly to one of the leading

cases there referred to. That is a decision of

Peterson v Billings, (1939), 96 P.2d 922, and at

the bottom of page 924, in the right column, the

general principle is stated in the last two

paragraphs. Your Honours, I suspect that the

copies you have have a kind of mourning-band around

it, as mine has but, Your Honours, the general

principle is that which I have stated.

Your Honours, at the top of the next page,

Your Honours will see the approach to, what we would submit, interpretation:

The right to vote is a constitutional right -

as it is in New South Wales, Your Honours. And one

of the bulwarks of our form of government and a

system of civil liberty, and Your Honours we are

indeed - - -

McHUGH J:  What about the words:

who is entitled to vote -

in llB? Do they not indicate that the entitlement

depends upon legislative provisions outside the

Constitution Act?

Keating	13	7/6/91
MR JACKSON:	Your Honour, yes, I think that is right.	May I

say, however, that one would think that there is a
fairly standard range of matters which might be

regarded as prohibiting, or disqualifying persons

from being voters: minority in terms of age is a

common thing, and there may be other things.

McHUGH J: Persons in prison?

MR JACKSON: In prison, Your Honour - imprisonment, perhaps

mental incapacity. There is a range of matters

which one would think of as commonly being matters
which might disqualify persons from being able to
record a vote and the reason for doing so, one

would think, is either because there is a kind of

civil disqualification because of imprisonment, for

example, or there is some disqualification because

of lack of capacity or deemed lack of capacity, if

I can put it that way. But, Your Honour, one is

not really concerned about that, with respect, in
the present case needless to say, but within the

band of persons who may be permitted to vote, in

terms of llB, one then has, if I could use the

expression again, the constitutional imperative of

clause 1.

McHUGH J:  I appreciate that, but the significance is that

clause 1 does not mean every voter shall be

required to record his vote, it takes its stand

against a background of laws giving entitlements to

vote. Now, subject to hearing the solicitor, I do

not have any real problem about your argument about construction but, at the moment, I do have problems with your inconsistency argument because it seems

to me that the first limb says that a person

entitled to vote shall be required to record his

vote for one candidate but no more, but it does not

deal with how or when or where he records his vote

and legislation dealing with any of those matters,

arguably, is not inconsistent with the first limb

of clause 1.

MR JACKSON:  Your Honour, may I say this in relation to it.

What the Seventh Schedule in clause 1 is doing is

to say that a person who is a voter:

shall be required to record his vote for 1

candidate.

Now, that, Your Honour -

McHUGH J:  and no more -

those words are not very important, because they

emphasize that it is optional voting. You cannot

be required to vote for more than one person?

Keating 14 7/6/91

MR JACKSON:  No, no.

McHUGH J: But that exhausts the subject. It exhausts the

subject-matter in that sense. That is the

subject-matter: optional voting. How you disclose

the manner of your vote is another thing.

MR JACKSON:  Your Honour, with respect, no, because the

concept that is contemplated by the first part of

that clause is that there is a poll for an election

of a member of the assembly. The way in which the clause operates is to say, "You may vote in one of

two ways".	One way is to record a vote for one
candidate and no more.	The other way is to, if you

want to, you may record your vote for many more

candidates.

Now, Your Honour, that is the ambit of the

constitutional protectional guarantee if one likes.

But within that, Your Honour, when it says, "You

shall be required to record your vote for one

candidate and no more", or you may do it the other

way, what it is also doing is giving the right to

do it, and the right to record the vote is a right

to do just that, to record a vote. It does not

empower the legislature to say that a way of
recording a vote, given the right contemplated by

clause 1, is not to be open to you.

McHUGH J:  You treat it as a right to record your vote, but

what I was putting to you, it is not a right to

record your vote.

MR JACKSON:  Your Honour, it is not just a mere matter of

whether it is phrased in the positive or the

negative. Correlative to the obligation to record

your vote for at least one candidate is the right

to do it and, Your Honour, may I submit with

respect, if one were to take, for example, the

observations of Justice Isaacs and in the American

case to which I referred, one should not really

treat a clause like clause 1 as being a provision

which is to be regarded in a narrow fashion because

in terms of the ability, to use a neutral term, of

the voters to vote. What it is, is a provision

which not just provides for optional preferential

voting but gives persons the right to vote in

either of the two ways contemplated.

McHUGH J:  It is necessary to your argument to make that

second proposition good, is it not?

MR JACKSON: Yes, Your Honour. But, Your Honour, that is

fundamentally, of course, a question of

construction of clause 1 and, Your Honour, we would

submit, in relation to that, that it is a case of

there being correlative obligations and rights and,

Keating 15 7/6/91

Your Honour, without overdoing it, as it were,

there is no doubt that really at the core of the

democratic process is the right to vote and there

is no reason why one should not treat clause 1 as

having that effect.

Now, Your Honours, I was going to give

Your Honours one more reference. The last one to

which I intended to go was the position in relation

to the position in Canada. May I give Your Honours

a reference to Re Dingley and McLean, (1973) 34 DLR

(3d) 38, and if I could take Your Honours to

page 42. Your Honours will see, commencing about

the third line on the page, a reference to a number of cases commencing with Phillips v Goff to which I have already referred, and then after discussing

the approach which goes on down to the passage

immediately after the quotation, Their Honours say,

about point 7:

There is no reason to conclude from anything within the four corners of the Municipal

Elections Act, 1972, that the Legislature intended to frustrate the clear intention of a

voter when that was manifest from the manner

in which his vote was recorded -

et cetera. Now, Your Honours, from that, we would

submit, it is apparent that in the absence of a

provision which makes mandatory a particular way of
recording a vote, then the concept of recording a
vote includes recording it in any manner which

makes apparent the intention of the voters and,

Your Honours, we would submit that the terms of

clause 1 do not just say, "You must vote for at

least one candidate", but they also say, "You have

a right to vote for one candidate" and the concept

contemplated by that is one of the nature to which

I have referred.

MASON CJ: Thank you, Mr Jackson. Yes, Mr Solicitor?

MR MASON:  Your Honours, may I hand up a short outline of

what I wish to say?

MASON CJ:	Yes?
MR MASON:	In our submission, the special leave should be

refused because the judgment below was clearly

correct. The English, New Zealand and Canadian

authorities to which my learned friend referred all

deal with a particular statutory framework and do

not really address the question of Parliament's

right, in a constitutional framework such as New

South Wales, to regulate the manner of expression

of a voter's preference.

Keating 16 7/6/91

Ultimately, the applicant's case, in our submission, has to come back this far, to say that

there is a constitutionally permitted manner of

voting in any manner which would clearly express

the voter's intention. Section 122A(l) is not,

itself, constitutionally entrenched and my friend's

argument to be valid would, in our submission,

really have to say that a provision which said, as

does section 103 and as it always has, "You shall

indicate your preference by the use of numbers" -

his argument would have to go so far as to say that

if this provision were unqualified, it would be

invalid. Now, Parliament has - - -

McHUGH J: What it comes to, that the repeal of 122A, in

some way, would be invalid. That is what the

argument against you would have to come to because

it would leave 103 - - -

MR MASON:  It would have to go that far and, really, my

learned friend's argument seeks to start from

122A(l) as if that were some constitutionally

entrenched provision which affected the requirement of the right to vote. Its subject-matter is really how the returning officers will exercise certain

powers in order to relieve against non-compliance

of the otherwise mandatory provisions of

section 103.

Discussion about the general law of voting is

equally misplaced, in our submission.	The common
law of voting was by public voting.	Secret ballot

and all the statutory framework which has long been

part of the Australian and New South Wales

provision is the bac.kground against which this

legislation was enacted.

It is not correct, in our submission, to say

that this is a constitutionally entrenched

provision and, therefore, the ordinary rules of

statutory interpretation, such as the application

of the Interpretation Act, do not apply. In 1979

two Acts were passed concurrently as cognate Acts.

Act No 38 which entrenched various provisions in

the Constitution, including the Seventh Schedule

and Section 29, and Act No 39 which made a number

of amendments to the Parliamentary Electorates and

Elections Act.

McHUGH J:	Was Act No 38 approved by referendum?
MR MASON:	No.  It was passed as a simple Act of Parliament

and entrenched and, of course, one of the arguments

which we would wish to put, although it is not

pertinent to special leave, is that the

entrenchment itself is invalid because it is not a

Keating 17 7/6/91

law with respect to the constitution, powers and

procedures of Parliament.

So, Parliament in 1979, concurrently and by what were described as cognate Acts, made these

sets of amendments, and it is against that

background that the wording of clause 1 of the

Seventh Schedule needs to be address, in our submission.

In our submission, the tail, the words

commencing:

so as to indicate -

govern the whole of what goes before and if that
argument is correct, then one has, on the face of
the section from which my friend seeks to extract,
the entrenched constitutional right and equally
entrenched, one might say, constitutional right in

Parliament to legislate as to the manner.

McHUGH J:  I must say, Mr Solicitor, I have great difficulty

in accepting that reading of the clause.

MR MASON:	Yes. Well, Your Honour mentioned order of preferences as use at that reading.	Mine or his,
if I might ask?

McHUGH J:  Your reading of it or the Court of Appeals

reading of it?

MR MASON:	Yes.
McHUGH J:	I must say, speaking only for myself, it seems as

plain as a pikestaff that the argument against you

is the correct argument on this aspect of the case.

MR MASON: Well, we say that the punctuation - and it is a

two-fold aspect of punctuation - is the presence of

after the words "for 1 candidate and no more" which the second comma and it is the absence of a comma helps to show that the tail qualifies the totality.

McHUGH J: But it says:

shall be permitted to record his vote for as

many more candidates as he pleases, so as to
indicate in such manner as may be provided by

law the candidates for whom he votes and the

order of his p eferences for them.

MR MASON:  Yes. Well there is then the interpretation

provision and the use of the plural rather than the

singular is quite explicable because that would be

the more common event. This Court, in the BP case,

said that that is one indication that. an

Keating 18 7/6/91

interpretation singular plural provision is

intended to operate.

McHUGH J: But "candidate" where it is first used must be

used in the plural, must it not?

MR MASON: First used after the comma, or before?

McHUGH J: Before the comma.

MR MASON:  Oh yes, clearly, "many more candidates".

McHUGH J: Yes. Well when it uses "the candidates" after

the comma, particularly in its context, surely it

is referring to those "many more candidates".

MR MASON:  No, well, it does not say "such candidates". proposition Your Honour is putting to me, in our The

submission, overlooks the fact that the tail has a

two-fold function; it deals with manner and order

of preference as quite separate issues and -

McHUGH J: Well, I appreciate that, but how could you have

an order of preference in respect of voting for

one candidate?

MR MASON: Well, clause 4 of the Seventh Schedule uses the

very expression "first preference votes" as an

indication of the fact that the exercise of the

option to vote for one candidate is an ordering of

preferences. Your order is one, the person you put

the number 1 against: everybody else can go in a

category called 2. If you choose to rank them,

well they go in a category 2, 3, 4, to the extent

that you do.

MASON CJ: Mr Solicitor, if I can interrupt for a moment.

After all, this is a special leave application and you are resisting it on the ground that the

judgment below is clearly right.

MR MASON:	Yes.
MASON CJ:	Now, I would have thought there is difficulty in

demonstrating to us, on a special leave

1 in the Seventh Schedule, is clearly right.

application, that the construction, which the clause

Quite obviously there are matters of debate, as has appeared from the exchange that has already taken

place between you and the bench. I would have

thought, for my part, you would be on stronger

ground in relation to your second resubmission,

which goes to the content of the first part of

clause 1.

MR MASON: Well, Your Honour - - -

Keating 19 7/6/91

MASON CJ: But, of course, I am only speaking for myself.

MR MASON:  Yes. Well, of course, when counsel puts the

submission clearly right, the test that ultimately

the Court may apply is that it is not attended by

sufficient doubt, but it would be inappropriate for

me to put the submission perhaps in those terms.

Your Honour, there is very little more I want

to say about the tail other than what is put into

our written submission. The reference to "manner''

in the tail does suggest, as one would have

expected anyway - and this, in a sense, slides into

the proposition Your Honour the Chief Justice is

putting - that the subject-matter of the clause

itself is something other than the manner in which

the vote is to be recorded. That is emphasized

really by section 29(2) and section 7B(7), each of
which reiterates, and probably tautologically, that

Parliament's power to pass laws, as long as they are not inconsistent, is reserved.

Your Honours, we submit that the

subject-matter of the provision is, as the Premier
indicated in his second-reading speech, the

introduction of optional preferential voting and

through section 29 and 7B, the entrenchment of that

right. There is nothing inconsistent with the

creation of that entrenched position and the

regulation of the manner of how the preference or

preferences are expressed. The latter is, we say,

on the face of it, look at the tail, but in any

event implicitly, reserved to Parliament.

Parliament had legislated on that topic from

1912 onwards; Parliament in the cognate Acts, when

it amended section 103(2) - and if I could just

briefly go to that in the Parliamentary Electorates

and Election Act in its present form, is the form

in which it was introduced in the cognate bill

No 39 of 1979. Parliament actually provided a

requirement as to the manner of expressing a single
preference vote.	Now, could it have been intended

by that same Parliament that that subject-matter

was taboo, was entrenched, by the concurrently

enacted clause l?

McHUGH J:  No, that has got to be read with the fact that

122A(l) was in the Act, at the time, 103(2) was

inserted.

MR MASON:  Yes, but 122A(4), in either its 1982 form or its

1990 form was not, and 122A(l) was deliberately not

entrenched, whereas other parts of the

Parliamentary Electorates and Election Act, such as compulsory voting, which was in the old Act, was

carried over into the Constitution Act and

Keating 20 7/6/91

entrenched. Provisions such as 103 and 122A were

not entrenched.

Your Honours, the American case law, to which

my friend has referred, sees no inconsistency

between a constitutional right to vote and the

regulation by Congress or Parliament of the manner

in which voting takes place. In Lassiter v

Northhampton Election Board - perhaps I will come

back to that, but there is just one case I will

hand to Your Honours called Scribner v Sachs. It

is a case that deals with, what the Americans call,

"checks", what we would call "ticks", and it is

cited 164 NE 2d 481. At page 490, at the bottom of

the page is the relevant portion. There the

statute required the use of a cross and effectively

invalidated a ballot paper which used a check or a

tick or the word "Yes", and the validity of that

requirement was attacked. At page 491 in the

left-hand column, middle of the page:

As we have pointed out, millions of

electors cast their votes on proposed

amendment and the possible symbols or words

that could be used to express their intent is

numberless. There are thousands of election

officials who must interpret such symbols and

words, and what may be clear to one official

may be ambiguous to another. Therefore, it is

necessary as well as usual and ordinary for
the legislature to provide some standard for

marking the ballot in order to prevent fraud

and to insure uniformity as to which ballots

are to be counted. We cannot, therefore,

accept contestants' argument that the

legislature has not power under section 2 to

provide for the method of marking a ballot

when a proposed amendment is submitted to the

electors.

It is also argued that to require a cross

in voting on a proposed constitutional

amendment violates section 18 of article II of

the Illinois constitution which provides for

free and equal elections, that it creates an

unreasonable interference with a citizen's

privileges and immunities, violates his rights
to due process of law, and to equal

protection -

et cetera.

This argument is based on the premise that the

legislature, by giving effect to a ballot

marked only with a cross, is discriminating

against and giving less influence to the

ballot marked with a check or "yes".

Keating 21 7/6/91

As we have indicated the legislature has

the power to provide a standard for marking a

ballot. The standard set by the legislature

is to mark the ballot with a cross. This

requirement is applicable to all voters.

There is no question of equal

protection - - -

et cetera. And over the page, page 492, left-hand

column, about point 3:

We are sympathetic with those electors who

inadvertently marked their ballot with a check

or "yes," but we would be usurping the power

of the legislature to hold such ballots valid.

In addition, such a holding would set the stage for frauds, bring about unintentional

discriminatory acts by election officials and

encourage election contests in every close

election. Any new standard for the marking of

a ballot should and must come from the

legislature.

Your Honours, in our submission, the

distinction between the power of Parliament to

prescribe for the manner, or to put it the way subject-matter of clause 1 is to entrench the right

to cast an optional preferential vote. The manner

in which that right is to be cast was always

addressed before 1979 by the legislature; was
addressed in 1979 by the legislature and was

addressed after 1979 by the legislature. The power

to do so, and the judgment of the legislature as to
the proper way in which a vote may be recorded, or

may be treated as formal, though it reaches the

mandatory requirement of i03, that is a matter for

the legislature and was not the subject-matter of

any entrenchment, in our submission.

Your Honour, those are our submissions on the

special leave aspect of the matter.

MASON CJ: Yes, thank you, Mr Solicitor. Yes, Mr Jackson.

MR JACKSON: Your Honours, may I say a number of things in

reply to my learned friend. The first is that, in

relation to section 103, if it were unqualified by

section 122A(l), then it would be invalid.

Your Honours, the second thing is it is not correct

to say that we are, in any way, starting off from

section 122A(l); we are starting off from the terms

of clause 1. Section 122A(l) preserves from

invalidity provisions which otherwise might be

invalid.

Keating 22 7/6/91

Your Honours, the third thing is this: my

learned friend's argument referred to the common
law of the ballot - the common law of voting,

saying that one could put up ones hand in public

and that was something which might comply with the

common law as to voting. But, Your Honours, what

we are talking about really is the law which has

developed once a ballot system came into being and,

Your Honours, the cases to which we have referred and the law to which we have referred is not the

law that relates to the situation prior to there

being systems of balloting but the law which has

developed since systems of balloting came into

being, and that is why American cases, and the

general trend of them, as those to which we have

referred, are of some materiality, because one of

the things that was done in a large part of the United States was to adopt what they called the "Australian ballot system", and the "Australian

ballot system" is one which, of course, from State

to State is varied but fundamentally involved a

system of secret balloting by the use of,

initially, ballot boxes and ballot papers, and

Your Honours, it is in the context of that that the

law has developed in the manner in which we have

already submitted.

Your Honours, the third matter is this, that

it is alright to speak about the legislative

history and the legislative contemplation at the
time of the introduction of the 1979 amendment, but
the fact of the matter is that since 1926 one has

had a provision which expressly has permitted a

voter to vote in a manner which may be different

from the exact prescriptions of the law, but is one

which sufficiently indicates the voter's intention,

and, if one is speaking about the legislative

context, section 122A(l) has formed part of it.

MASON CJ:  Thank you, Mr Jackson. The Court will take a

short adjournment in order to consider the course

it will take in this matter.

AT 10.10 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.14 AM:

MASON CJ: The Court is of opinion that the conclusion

reached by the Court of Appeal is correct.	The
application for special leave to appeal will
therefore be refused.	·

Keating 23 7/6/91

MR MASON:  I seek costs.

MASON CJ: Yes. You do not oppose costs, Mr Jackson?

MR JACKSON:  There is nothing I can say about that,

Your Honour.

MASON CJ:  The application is refused, with costs.

AT 10.15 AM THE MATTER WAS ADJOURNED SINE DIE

Keating 7/6/91