Langer, Albert v Australian Electoral Commission - [1996] FCA 195

CATCHWORDS

CONSTITUTIONAL LAW - THE LEGISLATURE - ELECTIONS - General election for the House of Representatives - order by Supreme Court judge under s.383 of the Commonwealth Electoral Act 1918 - appeal to the Federal Court - whether appellant's conduct was prohibited by s.329A of the Commonwealth Electoral Act - proper construction of s.240 of the Commonwealth Electoral Act - "full preferential voting" or "optional preferential voting" - repetition of numbers in squares on ballot-papers - intention to encourage persons voting to fill in a ballot-paper otherwise than in accordance with s.240 - whether injunction should have been granted.

Commonwealth Electoral Act 1918, s.240, s,329A.
Electoral and Referendum Amendment Act 1992 (Cth)

Langer v. The Commonwealth (High Court of Australia, unreported, 20 February 1996)

ALBERT LANGER v. AUSTRALIAN ELECTORAL COMMISSION
VG 96 of 1996

Black CJ, Lockhart and Beaumont JJ
Melbourne
1 March 1996

IN THE FEDERAL COURT OF AUSTRALIA )
)

VICTORIAN DISTRICT REGISTRY ) No. VG 96 of 1996
)
GENERAL DIVISION )

ON APPEAL FROM THE SUPREME COURT OF VICTORIA

BETWEEN:ALBERT LANGER

Appellant

AND:AUSTRALIAN ELECTORAL COMMISSION

Respondent

COURT: BLACK CJ, LOCKHART and BEAUMONT JJ
DATE: 1 MARCH 1996
PLACE: MELBOURNE

MINUTE OF ORDER
THE COURT ORDERS THAT:

Leave to appeal from the judgment of the Supreme Court of Victoria given on 8 February 1996 be granted, in so far as the same may be necessary.

The appeal against the orders made by the Supreme Court on 8 February 1996 be dismissed. This dismissal shall not extend to any other part of the matter before this Court; and in particular, shall not extend to the question whether this Court has jurisdiction concerning the proceeding for contempt heard and determined by the Supreme Court on 14 February 1996, including any appeal against the sentence of imprisonment imposed on 14 February 1996 in that proceeding.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )
  )
VICTORIAN DISTRICT REGISTRY       )      No. VG 96 of 1996
  )
GENERAL DIVISION                 )

ON APPEAL FROM THE SUPREME COURT OF VICTORIA

BETWEEN:ALBERT LANGER

Appellant

AND:AUSTRALIAN ELECTORAL COMMISSION

Respondent

CORAM: BLACK C.J., LOCKHART AND BEAUMONT JJ.

DATE: 1 MARCH 1996

REASONS FOR JUDGMENT

THE COURT

INTRODUCTION
This is an appeal, (or, for reasons to be mentioned later, perhaps an application for leave to appeal) brought by Mr. Langer, the appellant, from orders made by the Supreme Court of Victoria (Beach J.) in an application made to that Court by the Australian Electoral Commission under s.383(1) of the Commonwealth Electoral Act 1918 (Cth) ("the Act").

Section 383(1) is as follows:

"383.(1)Where a person has engaged, is engaging or is proposing to engage in any conduct that constituted, constitutes or would constitute a contravention of, or an offence against, this Act or any other law of the Commonwealth in its application to elections, a prescribed court may, on the application of:

(a)in a case where…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1996] FCA 195
Decision Date: 1 MARCH 1996

CaseChat Overview and Summary

In the Federal Court of Australia, Albert Langer, the appellant, appealed against orders made by the Supreme Court of Victoria, which had been granted to the Australian Electoral Commission, the respondent, under section 383(1) of the Commonwealth Electoral Act 1918 (Cth) (the Act). The Supreme Court had granted the respondent an injunction restraining the appellant from engaging in conduct that constituted a contravention of the Act. The appellant argued that he should be permitted to encourage voters to cast their ballots in a manner that was not in accordance with section 240 of the Act. The Court had to determine whether the appellant's conduct was prohibited by section 329A of the Act and the proper construction of section 240 of the Act. The Court also had to decide whether the Supreme Court judge had exercised his discretion properly in granting the injunction.

The Court held that the appellant's construction of section 240 of the Act was not the correct one. The Court held that the plain meaning of section 240 was that squares in a ballot-paper are to be marked with as many consecutive numbers as there are candidates. The numbering must be carried on in the same manner, that is consecutively and without repetition of any numbers. The Court also held that the Supreme Court judge had exercised his discretion properly in granting the injunction. The Court perceived that it was the intention of the appellant to encourage electors at the forthcoming Federal election to fill in their ballot-papers by not writing the numbers 2, 3, 4 and so on consecutively without writing any particular number more than once. The Court held that the Supreme Court judge had correctly concluded that it was necessary to prevent the commission of the acts proscribed by section 329A by injunctive relief. The Court dismissed the appeal except with respect to the question whether this Court has jurisdiction concerning the proceeding for contempt heard and determined by the Supreme Court on 14 February 1996, including any appeal against the sentence of imprisonment imposed on 14 February 1996 in that proceeding.

The Court granted leave to appeal from the judgment of the Supreme Court of Victoria given on 8 February 1996, in so far as the same may be necessary.

Orders