Langer v Cwealth of A

IN THE HIGH COURT OF AUSTRALIA

Registry No C2 of 1993

B e t w e e n -
ALBERT LANGER
Plaintiff
and
THE COMMONWEALTH OF AUSTRALIA
First Defendant
AUSTRALIAN ELECTORAL COMMISSION
Second Defendant
BRIAN COX
Third Defendant

BRENNAN CJ

DAWSON J
TOOHEY J
GAUDRON J
McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 4 OCTOBER 1995, AT 10.18 AM

_________________

BRENNAN CJ: Yes, Mr Langer.

MR LANGER: Good morning, your Honours. As indicated, there is a preliminary question first concerning the composition of the Court. Before I do that, I should apologise for the state of the documents. I have not delivered a proper outline of submissions and I have only just now got a preliminary outline which can be handed up now. I am not sure that it already has been or what. It was just being photocopied a few minutes ago. Have you received it?

BRENNAN CJ: We have not got it yet, Mr Langer?

MR LANGER: Richard Refshauge just handed me my copy. Anyway, that will arrive in a minute. As I informed the Registrar, I had, over the last couple of weeks - it was when I intended to put all materials together and have it properly bound et cetera ‑ ‑ ‑

BRENNAN CJ: Yes, we understand.

MR LANGER: ‑ ‑ ‑ but, of course, I was prepared to argue the case a couple of years ago, so I am ready to argue it now. The question reserved now before you has annexed to it a statement of claims setting out the nature of the proceedings in which the question required determination. Paragraph 12 states the following the allegation which has not been admitted by the defendant, although it has not been denied by them either. The allegation No 12 is:

The second and third defendants have since the date of the writs -

that is, for the 1993 general election -

published material based on section 329A of the Act which material is misleading and intimidating and has had, will have or is likely to have an effect on the freedom of the Election such that it will no longer be free or fair.

Urgent relief was refused because it was considered necessary ‑ ‑ ‑

BRENNAN CJ: Now, Mr Langer, we have got the case stated before us.

MR LANGER: Question reserved, your Honour.

BRENNAN CJ: Question reserved.

MR LANGER: And annexed to it is that statement of claim.

BRENNAN CJ: And that is the question we have to determine?

MR LANGER: Yes. It is just giving your Honours the background as to the proceedings it arises under. That is the reason for annexing the statement of claim, that this is the context in which your Honours are being asked to determine the question. It is not being put to you as some abstract question of law out of idle curiosity; it arises in proceedings that were invoking the original jurisdiction of the High Court to seek injunctions against officers of the Commonwealth who it was alleged were intimidating and misleading people during a general election. That is what the proceedings are about. The hearing today is about the question that was reserved in the course of those proceedings. That is my understanding of why I am here.

I found it interesting yesterday, although not very interesting, that there was a great deal of discussion about the nature of the Constitution of South Australia and so on. It seemed very abstract. This is not about a fiction of implied freedom of communication in relation to political matters; it is about the reality of whether or not we have free elections in Australia. That is why the question was put to your Honours. I do not have any influence on when your Honours turn your mind to such questions. In the couple of years since I raised the matter, I have sometimes regretted having quoted as my only precedent for issuing an urgent interlocutory order the case of Tait v The Queen, because in that case the Court decided not to turn its mind to a question for a few days. In this case it has not turned its mind to a question for a longer period, but that is why the question is being asked of your Honours; it is in the context of those proceedings.

If the enactment did authorise the defendants to prescribe publications encouraging electors not to vote for candidates who they do not choose as their representatives in Parliament and if such an enactment is valid, then the conduct of the defendants may not be described as intimidating and misleading and the election may be deemed free and fair, so my allegation in No 12 in the statement of claim would fall and I would not be entitled to the relief that I was claiming, otherwise the Court will subsequently - not in today’s question reserved perhaps - have to decide what relief to grant.

If it is futile to invoke the original jurisdiction of the High Court of Australia to restrain officers of the Commonwealth from intimidating and misleading people during an election campaign, there is little point seeking declarations about the state of the law. If the High Court does have a role to play as guardian of the Constitution, it may be necessary for it to decide in these proceedings whether the elections that were conducted on the basis that section 329A was a valid enactment which authorised the defendants’ conduct were in fact free elections according to law.

The whole point of laws relating to elections is to enable the electors to effectively choose their representatives in Parliament and there was a great deal of discussion yesterday in which the Court asked what struck me as very reasonable questions of the plaintiff’s Queen Counsel without getting much in the way of satisfactory answers. I am certainly prepared to answer those questions now. My view is that without free elections there is no Parliament and without a Parliament there is no responsible government. The Governor‑General in Council has no authority to make judicial appointments on the advice of ministers who are not responsible to Parliament. Accordingly, Justice Gummow is not entitled to sit in these proceedings because he does not hold a valid commission as a Justice of the High Court of Australia.

In making that submission I recognise that the sheer practical reality of the matter is that if I win every aspect of my claim it would nevertheless be necessary for this Court to hold that the currently constituted government has a temporary de facto validity.

McHUGH J: How can that question arise? Section 47 of the Constitution takes away from this Court and gives to the Parliament the jurisdiction to determine whether or not a person is properly elected to Parliament and Parliament has exercised its power under section 47 and made the Court of Disputed Returns the only body for challenging an election or in which an election can be challenged and then you have the 40‑day provision.

MR LANGER: The Court of Disputed Returns has ruled that it has no authority under the Electoral Act to determine the validity of a general electiom in its entirety. Parliament certainly has not delegated that authority to the Court of Disputed Returns. I would say that it is inherently part of the jurisdiction of this Court and could not be located anywhere else. The Constitution creates both the Parliament, the executive and the judicial branches of the government of Australia. This branch of the government has a duty to determine the state of the law and whether acts of Parliament are validly enacted and whether parliaments are validly constituted. Nobody else can do it.

McHUGH J: The second question is invested in the Parliament by section 47. It is given the power to determine the qualification of a senator or member of the House of Representatives and this Court does not have any jurisdiction in respect of that issue.

MR LANGER: It is not, strictly speaking, an issue of the qualification of a member. The issue that your Honours have to determine is a preliminary issue in proceedings before the Court of the validity of a commission. It could have arisen in any other proceedings; somebody could be prosecuted under some minor Commonwealth traffic offence and could put forward the argument that the law under which they were being prosecuted had not been validly enacted by a properly constituted Parliament.

The last occasion on which this issue did arise in Australia was prior to Federation in the case of Reg v Pugh which was a prosecution initiated by the Legislative Council of Queensland which claims that a newspaper editor was engaged in seditious libel. The defendant put forward the rather unpromising defence to a charge of seditious libel that the Parliament was invalidly constituted and the judge’s commission held under the Queensland Supreme Court Act was therefore invalid because the Queensland Supreme Court Act was invalid. It is a rather remarkable decision because it is a one‑liner that the judge said that he held his commission under the New South Wales Act ‑ that was Justice Lutwyche ‑ and, therefore, even if the Queensland Supreme Court Act was invalid because the Parliament was invalidly constituted, he was nevertheless entitled to sit under his previous commission.

Three days later when a deposit had to be made in the Supreme Court registry, Justice Lutwyche held that the Queensland Parliament was, indeed, invalidly constituted and the situation had to be rectified by an imperial Act.

Now, in Australia, the only authority that can rectify the problem of an invalidly constituted Parliament is another Parliament that has been chosen directly by the Australian people. There is no imperial Parliament that would fix up the problem for us. So the only solution to various conundrums that arise in that situation has to be a general election that constitutes a valid Parliament which would undoubtedly enact some legislation removing doubts and deeming fictions and whatever else is done in such circumstances.

McHUGH J: I understand the argument you put, but are you suggesting that Justice Gummow should not sit in this matter?

MR LANGER: Yes. I would suggest as a way of proceeding, because, ultimately, this preliminary question involves all the other questions in it. It would be best if we just continued with the whole thing and you decide the preliminary question, you know, at the end. The reason I think it is important to raise it formally is that in a situation where a government does usurp power - and you have not decided whether that is what has happened or not - but if a fake general election is held in any country, if the precedent is that the validity of that election will be determined by a court appointed by the government in power, then the first matter that will be attended to on usurping power is the composition of the court. That, I do not think, is a precedent that you would wish to set.

It is perfectly obvious that is not what has happened in this case. You are dealing with the matter several years after the election and there is no possible suggestion that Justice Gummow was appointed in regard to the last general election, but I do not think you would want a situation where a government could imagine that if its authority to govern is disputed as a result of conduct that it engaged in during a general election, that the question of its validity will be determined by its own appointees. I think that is a pretty fundamental requirement for stable government in any society.

The alternatives to it are the sorts of situation that were being discussed by the Privy Council in the case of the Rhodesian judges, that there was a split in the Rhodesian judiciary whether to recognise the UDI regime of Ian Smith or the government that was still sitting in Government House without much authority, and there were very delicate considerations of determining whether the - well, they called it “revolution”, but I would call it more of a coup - de facto government had established its authority and, therefore, the courts would just have to accept that a new constitution was in force.

It involves fairly delicate considerations when courts are deciding whether governments can govern. In some circumstances, courts had to acquiesce to what has been done by force, just the same as anyone else who is not fully armed has to do so.

McHUGH J: But are you asking Justice Gummow to disqualify himself?

MR LANGER: I already put that in a letter to Chief Justice Mason several months ago. I was advised by his associate to put it to Sir Gerald Brennan and I gather from the fact that Justice Gummow is here that he has not disqualified himself, so I have no alternative but to raise it in open Court as I was instructed to do in a letter from the Registrar.

McHUGH J:And is the ground that no member of the last Parliament was validly elected?

MR LANGER: Yes.

McHUGH J:Well then I better reveal to you, if you do not already know, that my wife is a member of the federal Parliament, was elected in the last election; do you want me to disqualify myself?

MR LANGER: Not unless you are a member of the Parliament elected; I would assume you were not involved in the election campaign. That assumption is correct, is it not?

McHUGH J:Yes.

MR LANGER: This is not being raised as, you know, a sort of triviality, and just in that context by the way, there was an item in The Australian yesterday which appears to be an interview with me and could possibly prompt such questions on your part. I got rung by this reporter and told him I was too busy to talk to him; I did not talk to him.

BRENNAN CJ: You need not trouble about what is in the newspaper.

DAWSON J: But I understand you, Mr Langer, to say we can proceed, putting that question to one side for the moment, because the argument that you are going to put really addresses itself to that problem as well as the main ‑ ‑ ‑

MR LANGER: That is correct.

DAWSON J: Well then we can proceed.

MR LANGER: On the basis that when, at the end of it, I am seeking a ruling on that question before a judgment is made in the name of the Court, because I say the judgment should be made by those Justices that do hold a valid commission.

BRENNAN CJ: Yes, well now, Mr Langer, there are two further points, I think: one was that in your correspondence I thought there was an objection both to Justice Gummow and to myself sitting?

MR LANGER: That is correct.

BRENNAN CJ: I would just like to make it quite clear, whether or not you are objecting on the same basis as you have to the sitting of Justice Gummow in relation to myself?

MR LANGER: Yes. It is not on exactly the same basis because Justice Gummow’s position is that if his commission is not valid then he is not a Justice of the High Court, whereas I would presume that if your commission as Chief Justice is invalid, that would revive your commission as an ordinary Justice and you would in any case be the senior judge present. That seems to be the situation that occurred in that Queensland case. It might be appropriate to actually go to the document I referred Your Honours to there. It is in volume 3 of the materials that were presented, item No 16. It is an article by Justice McPherson of the Supreme Court of Queensland.

Item 16 - I am afraid that the whole thing has not been tabbed or anything. Immediately before it there is the petition in the Court of Disputed Returns and then a letter from the Attorney‑General’s Department with my reply noted to it immediately after it. There is a one-page item from the Queensland Fitzgerald Report and then an article on paradoxes of preferential voting. So, if you come across any of those you know you are near the destination.

McHUGH J: We are not having much luck I am afraid, Mr Langer.

BRENNAN CJ: Mr Langer, I think we have all found it now.

MR LANGER: Right. This was written in February 1988 when apparently justices in Queensland were thinking about the nature of the Queensland Parliament and reviewing historical documents. The next item in there is an extract from the Fitzgerald Report in 1989. This immediately follows the Lutwyche article and I might start there because it highlights what is at stake here.

BRENNAN CJ: What does it say about the appointment of Mr Justice Lutwyche?

MR LANGER: I will go back to Lutwyche. What it says is that Lutwyche concluded that the legislature was invalidly constituted because it had been elected under the wrong franchise. The franchise that was supposed to have taken place in Queensland was to be similar to the New South Wales franchise which was a very moderate property qualification and the franchise that was actually adopted as a result of misconstruing the relevant orders in council was a more severe property qualification and there had actually been elections by Queensland in which Queenslanders had participated in the New South Wales elections under the more acceptable franchise prior to the separation of Queensland. So, he had drawn that to the attention of the relevant authorities and suggested that would need some imperial legislation to validate proceedings, and they did not.

There was then a situation arose in which news of that got out prior to the imperial legislation actually being enacted and there was a great deal of disputation about the situation in Queensland. There was a degree of hostility between the Queensland Government and the Supreme Court that they had attempted to reduce judicial salaries from 2,000 to 1,200 or something and Lutwyche pointed out in the course of that that they could not reduce his judicial salary because they were not validly constituted and they still persisted, which was perhaps in some ways similar to the problem in South Australia with Justice Boothby, where he had pointed out the invalidity of certain electoral laws in the course of pointing out the invalidity of many other laws and they at one stage had an address of both Houses to the Governor seeking his removal, to which he replied by pointing out that neither House was validly constituted and, therefore, could not validly make an address seeking his removal.

Prior to that they had attempted to appoint a new superior court to overrule him which consisted of members of the Executive Council and he ruled that you could not have a court consisting of members of the Executive Council so he ignored that one. So there has been a history in Australia of a certain amount of conflict between Parliaments and courts which fairly inevitably have led to a mixed victory on both sides. On the one hand, in Queensland Justice Lutwyche’s opinion was confirmed that it was necessary to have an imperial Act to validate the situation. On the other hand, he had been expected to be the Chief Justice of the Queensland Supreme Court and subsequently he was not appointed as Chief Justice of the Supreme Court.

In Boothby’s case the Crown law officers held that he was quite correct and there was no validly constituted South Australian Parliament, as a result of which we are still blessed with bits of the Colonial Laws Validity Act peppering constitutional documents in Australia, but subsequently there was a decision by the Governor‑General in Council to instead of an address for removing him, they amoved him, which gave him a right of appeal to the Privy Council, but he died before that was completed. So it is not a minor thing for a court or a judge to declare that a Parliament is invalidly constituted. It does have repercussions for one’s career path.

The problem that I see in Australia is that there seems to be a mixed tradition for appointing the Chief Justice. Whenever there has been a Labor Government in power it has nominated the most senior member of the Court to become the Chief Justice. Whenever there has been a Coalition or a non‑Labor Government in power it has nominated somebody outside the bench. Now, either of those procedures is quite consistent with the idea that Justices appointed to the High Court should have no favours to look forward to, that they should be able to act entirely free both of any fear of retribution and any hope of reward.

If you know that whoever is going to be Chief Justice will be appointed from outside the bench, then there is no favours to beg from the Government. If, on the other hand, you know that the most senior person to be appointed will be appointed, then again there is nothing to worry about what the Government thinks about your decisions. If you know which will occur depends on the outcome of an election, then you have a certain stake in the outcome of elections and I think that is a highly unsatisfactory situation.

BRENNAN CJ: It is inaccurate historically, apart from anything else. But where does this lead us? This is a question of whether or not in the circumstances pleaded in the statement of claim there was an election of such a character that the Parliament that was declared elected was not in truth a Parliament; that by reason of the attitude taken by the electoral office to the provisions of section 329A.

MR LANGER: Yes. I would not express it as the attitude taken to the provisions; I would say that it was a continuing campaign. The provisions were part of that campaign that they had been waging to influence the results of elections.

BRENNAN CJ: The question, I suppose, then comes down to whether or not if that part of the campaign, to use your term, was misconceived because 329A was invalid, the result is to invalidate the Parliament as a whole?

MR LANGER: Yes, although I would also put it in the alternative: section 329A could perfectly well be a valid enactment. The main reason why it would be invalid would be if one construed it to authorise such a campaign. I cannot see that any Act of Parliament could authorise the Electoral Commission to engage in any kind of electoral campaign, let alone one based on intimidation.

BRENNAN CJ: Well, we are not determining the conduct of ‑ ‑ ‑

MR LANGER: But I am saying it goes both ways. My writ had claims both in the alternative and together that if it is construed that way, then it must be invalid. If on the other hand it is not construed that way, then I still want my injunction restraining them. So these proceedings do not to me - I do not know why it is necessary to reserve the question and determine that question before stopping somebody from interfering with freedom in an election. The Solicitor‑General got up in the Court and said that they thought this was an entirely proper matter to place before the Full Court, and I said I thought it was an entirely proper matter for an ex parte declaration that these people know that elections are to be free, that there should not be any waste of time in stopping people from intimidating electors during an election.

But the only case that was cited by the Solicitor‑General was from a report that he referred to as re Lewis Carroll Ex parte The Queen of Hearts, in which he argued that the verdict should come after the trial. I think that was a bad idea. The true ownership of the tarts could be determined after first making sure that nobody makes off with them. I think urgent relief should have been granted, but it was not granted and at some stage the trial has to take place and the verdict has to be given.

But I think the Electoral Commissioner has to be restrained from intimidating people during elections and, if he is not restrained because the Court is unable to act urgently, then either it is futile to approach the High Court of Australia to stop Commonwealth officials from intimidating people during elections or the election has to be declared invalid.

BRENNAN CJ: If we turn to paragraph 12 of your statement of claim, there is, as I understand your present submissions, really two allegations contained in it. One is that there was material placed on 329A, and the second is that there is material which was misleading and intimidating whether based on 329A or not. Is that right?

MR LANGER: Yes, that is correct.

BRENNAN CJ: The second of those propositions is what, in your submission, amounts to the intimidation of the electorate?

MR LANGER: Both do. I think part of the problem ‑ ‑ ‑

BRENNAN CJ: Then if the first does, we have to consider that only on the question reserved.

MR LANGER: My understanding is that in order to determine whether it is valid, you first have to construe it, you have to determine what it means, and it becomes a bit circular because in determining what it means, the traditional approach to statutory interpretation is it could not possibly mean something manifestly absurd. It could not possibly authorise an electoral commissioner to engage in intimidation during an election. So the two are slightly mixed together, and I think that confusion was coming out yesterday. Syd Tilmouth was having difficulty expressing the concept of what elections were about and why certain things would be invalid and so on.

I thought there was a reaction in some of the questions you were asking as: Why on earth would you interpret section 76 of the South Australian Electoral Act as prohibiting you from writing slogans on the ballot paper? It does not say anything like that.

BRENNAN CJ: We are concerned now with 329A of the Commonwealth Electoral Act which relates to what a person may not do. That person who is referred to there is not the Commonwealth Electoral Office.

MR LANGER: It may be. If the enactment is valid, I would say that the only theory I can think of on which it would be a valid enactment is if it was directed at the electoral office. Perhaps if I start going through the actual submissions on it.

BRENNAN CJ: It would help if we could get a clear understanding of what the propositions are that you wish to advance.

MR LANGER: Yes. What happened is that ‑ ‑ ‑

TOOHEY J: Can I just ask you this, Mr Langer: you place some reliance on paragraph 12 of the statement of claim, but that paragraph and paragraph 10 come before us on the basis that the allegations in those two paragraphs are disputed.

MR LANGER: That is correct.

TOOHEY J: I presume you are not asking us to resolve those questions?

MR LANGER: No. That is why I have raised the preliminary matter. I think the whole thing should have been determined very quickly a long time ago. The Court has put it off but it will have to determine it. Today’s hearing is about construing that section and determining whether it is validly enacted but it is part of those proceedings.

TOOHEY J: Could I just ask you this: I take it from what you are saying that we are not to be concerned with any allegations of a factual nature in relation to intimidation or otherwise?

MR LANGER: Other than those that are admitted by the defendants.

TOOHEY J: Yes, other than those that are admitted by the defendants, but they do not go to intimidation.

MR LANGER: Yes. The Court is not holding a trial with witnesses to see who said what and did what until the time comes for one.

TOOHEY J: Then why should we be concerned with any matters other than the question reserved for our consideration; namely, is section 329A a valid enactment?

MR LANGER: Because my argument that it is not a valid enactment is that it could not authorise what it was used to do. The whole problem arose because the Electoral Commission, it was claiming, “This authorises me to bully you during this election” and that is why I went to court.

Senate candidates actually stood down - were told that if they continued their campaign they would have injunctions taken out against them, so they stopped campaigning. I first heard of section 329A as a result of an SBS broadcast saying it is illegal to encourage people to vote informal during this election and that that is what the writ was issued to stop. I do not believe that you can hold an election in Australia in which the electoral office is misleading people as to what the law is.

TOOHEY J: That may or may not be true but it still does not really face up to the question as to what the Court is being asked to deal with this morning and that is, is section 329A valid? From what you said a moment ago, your argument as to invalidity embraces a number of factual considerations.

MR LANGER: I would think that the “not admitted” in the question reserve was not denied either.

TOOHEY J: No, it is not “not admitted”, it is “disputed”.

MR LANGER: I think in constitutional cases there has been some criticism from the Court of people not presenting evidence of the factual background as to what the situation in Australia is, so I am ready to present your Honours with evidence of the factual background relating to the way that elections are conducted.

BRENNAN CJ: Now, Mr Langer, we are not going to hear any evidence in relation to the conduct of the electoral officer, nor in relation to the conduct of the elections. We are going to determine whether or not as a matter of constitutional principle, 329A is valid. So you direct your argument to that question and to that alone.

MR LANGER: And your Honours will also be determining the question of whether Justice Gummow holds a valid commission.

BRENNAN CJ: If that should be relevant at the end of the day.

MR LANGER: I am sorry, the relevance is as to who determines the relevant question. This Court has to determine the validity of enactment. Justice Gummow cannot participate in that determination unless he is a validly commissioned Justice of this Court. Therefore, although I am quite happy to proceed with the argument while he is sitting there and that is not determined and I would be delighted to answer questions he has, I do insist that that determination must be made before a Court that includes people who have not been validly commissioned makes a determination of the law.

BRENNAN CJ: The argument which may be relevant to the question of Justice Gummow’s appointment is one which has not yet been developed. It depends on the development of your argument on 329A..

MR LANGER: I am happy to proceed on that basis.

BRENNAN CJ: When that is developed, two questions will emerge: one is whether or not 329A is valid; the second is whether or not, having regard to that situation, Justice Gummow’s appointment is in any way in doubt.

MR LANGER: Well, the background which I think can be common ground between both sides is set out by the Electoral Commission in their submission to the joint standing committee on electoral matters on page S 0428, which is item 1 of volume 3 of the plaintiff’s materials. Paragraph 2.4:

Informality/Optional Preferential Voting
2.4.1 At both the 1987 and 1990 elections there were instances of electors being encouraged to cast their vote in a manner which encouraged informal or optional preferential (eg.1,2,2,2) voting.

And I would like to stop there and point out that there is some confusion of terminology all around here. The reference to “1,2,2,2 voting” is, I think, instantly understood by anyone as meaning a vote by an elector who chooses the one that they have marked a 1, and rejects the ones that they have marked as a 2. I would call that compulsory preferential voting, that the only reason for writing those three 2s is because you are compelled to do so or the 1 will not be counted. However, a practice has grown up of referring to this as optional preferential voting. The term I would use would be “direct choice”, that what the elector is doing there is making a direct choice between the candidate that they marked 1 and the other candidates who they reject.

However, I think what possibly happened in deciding not to use that term is it would look rather odd for Commonwealth electoral legislation and debates in Parliament to say, “We wish to prohibit electors from making a direct choice during elections”, as that would raise a constitutional point that I intend to raise. However, so as not to prejudge that point by adopting specious terminology myself, I will refer to it as “selective preferential voting”. That we have a system of compulsory preferential voting that requires you to number every square on the ballot paper. In my view, you can either do that selectively, for example, by choosing the three candidates you support, and giving them a 1, 2 and 3, and then giving a 4 to the four candidates who you do not support. That is an example of a selective preferential vote, and it is a compulsory preferential vote, because if you leave out the 4, your vote for the three candidates will not be counted and you are compelled to write in an explicit indication of your rejection of the remaining candidates, and that is opposed to the optional preferential system where you would merely write the 1, 2 and 3 and by leaving the others blank it would be taken that you do not vote for those other candidates. So I would use the term “selective preferential voting”, but the AEC uses the term, “optional preferential voting” to describe a 1,2,2,2 vote.

The next paragraph continues:

As a result of an amendment (s.329A) to the CEA in December 1992, the encouragement of both practices is now proscribed and, in concert with s.240 and s.270 of the CEA, the section can be invoked to deter or discourage such activity. There were, in fact, few instances of attempts being made at the March 1993 election to encourage voters along informal or optional preferential lines but these were abandoned following warnings by the AEC to the individuals or media involved.

And then it refers to other paragraphs regarding litigation on this matter, which is now before you:

The AEC will conduct a survey of informal ballot papers and the results will be provided to the JSC.

And there is reference to tabulation:

The incidence of apparently deliberate (eg. 1,2,2,2) optional preferential voting of concern to the JSC in respect of the 1990 election, was very low, even non-existent in some Divisions. At the full distribution of preferences there was a low level of exhausted votes. The new section 329A may have been a strong deterrent.
The informal vote nationally for the House of Representatives was 2.97% (3.19% in 1990) and for the Senate 2.55% (3.40%). AEC information campaigns and material, as well as its advertising campaign, appear to have been effective.

Now, in my view, that constitutes an admission by the defendants of my twelfth allegation, except that they would not describe it as intimidating and misleading but they admit that section 329A ‑ ‑ ‑

BRENNAN CJ: What has it to do with the validity of 329A?

MR LANGER: I would say that an enactment which is designed and intended to enable the AEC to conduct a campaign to discourage people from voting in a way that they are entitled to vote and to encourage people to vote for candidates who they do not choose as their representatives in Parliament, cannot be a valid law of the Commonwealth. This is what puzzled me about yesterday’s proceedings, that Justice Dawson was asking, “In what way is this supposed to be inimical to representative government?” and he did not get a straight answer.

Well, this is my straight answer. If people want to vote for the candidates of their choice, that is what elections are about, and if Commonwealth officials are going around telling them, “You’re not allowed to do that”, and, “You’re not allowed to suggest to other people to do that”, that is just a manifest absurdity. The problem in relation to invalidity is that it is so manifestly absurd that I do not see how the Court could construe the legislation as authorising that. To me, it was largely a quite fictitious construction of the legislation that is insupportable. Either way, the Commissioner has to be stopped from doing this.

BRENNAN CJ: But is not the argument against you the one that was put yesterday, that there is a method prescribed for the casting of a vote which will be effective in the counting and it is not inimical to representative government to prescribe a system which will allow the making of a choice in accordance with the system so prescribed, nor is it inimical to the system of representative government to prohibit a person from advising others to cast a vote, or to purport to cast a vote, in a manner which will result in the vote being not counted?

MR LANGER: Indeed. The whole point of elections is for electors to choose their representatives in Parliament. You cannot have people going around during elections telling people not to carry out that choice. If, for example, you have people going around in elections saying, “The way that you choose your member of Parliament is by selecting a random number on the ballot paper and writing the No 1 against it because you are obliged to do that ant that’s your duty”, they are interfering with the election. The whole point is for the electors to choose who they want to represent them.

I see no problem with freedom of communication in the fact that the Electoral Act prohibits the Electoral Commissioner from campaigning. None of the officers of the Electoral Commission are allowed to influence the votes of electors and that is an interference with freedom of communication into political matters, but it is a perfectly reasonable one. They should butt out of election campaigns. It is quite extraordinary that both the major political parties do put forward as their principal argument for voting for them the fact that their opponents are so useless. If they were to say, “And you are obliged by law to vote for me because you had to vote for somebody” that would be illegal campaigning.

McHUGH J: That is why I do not understand why the attack is not on the compulsory voting.

MR LANGER: Because I support compulsory voting, as opposed to compulsory non‑voting. A vote ‑ and this is the other confusion in terminology ‑ the concept of an informal vote is something of a contradiction in terms. A vote is a formal indication of a vote of an elector’s choice. Now, if an elector’s position is, “I do not choose you as my representative in Parliament and I do not choose you as my representative”, that is their vote. You cannot call something a vote when it is the coercion of somebody to write numbers on ballot papers.

DAWSON J: But would you say that a provision requiring people, as a matter of law, to fill in their ballot papers in the way in which it is prescribed, would be beyond power?

MR LANGER: It would present an enormous drafting problem.

DAWSON J: Not a drafting problem, it would present a practical problem. But, for the purposes of the argument, let us assume that you have such a law. Would you say it was beyond power?

MR LANGER: I would start with the drafting problem. I am not being facetious. How would one draft something that expressed that concept?

DAWSON J: Just simply say that “This is the way you fill in your ballot paper and if you do not do it in that way, it is an offence”. Now, let us assume such a law.

MR LANGER: Okay. Then I would imagine it would come to the Court on the basis of, “Does the Parliament ‑ ‑ ‑

DAWSON J: I am asking you whether you would say that was beyond power?

MR LANGER: It might be within the power under collecting census and statistics. It could not have any relevance to choosing members of Parliament.

DAWSON J: Why not?

MR LANGER: Because the concept of a choice and the concept of a parliament and an election and voting, if there is any reference to any of those things in the legislation ‑ ‑ ‑

DAWSON J: Why cannot Parliament require electors to make their choice in a particular manner?

MR LANGER: Because then it is not the elector’s choice. If it is just a manner, it is a question of the form of doing it, that is entirely reasonable. The manner that is prescribed is you write numbers in squares on boxes. That is obviously a necessary part of the election laws. But, if they are telling you that you have to choose somebody who you do not choose, how would one express the concept? You could imagine a compulsory political survey under the census and statistics power that said everyone is to give an indication of who they prefer.

DAWSON J: .....this argument of absurdity. What if they decided they did not like the candidates and wrote someone else’s name who was not a candidate because that was their choice?

MR LANGER: In some jurisdictions it has been held that write in candidates are a necessary part of the constitutional right to free elections.

DAWSON J: Do you say that is so under our system?

MR LANGER: I believe that is not the case in this system. There is no indication ‑ ‑ ‑

DAWSON J: Therefore, the legislature is requiring a choice to be made in a particular way.

MR LANGER: Yes, and the particular way that the legislature requires you to make it is by numbering the 1 against the candidate of your first choice. If there is not one, obviously you leave it blank. This is not a complex matter of statutory determination.

McHUGH J: No, but what the Electoral Act asks you to do is to indicate your preference among those who stand. If you do not want to vote for any of them then logically surely your objection must be to the compulsory nature of the voting system.

MR LANGER: A great many people do have that objection. I do not. To me it seems a perfectly normal and reasonable part of an electoral law to say that you are required to actually think it over rather than just taking the day off at the beach. I just do not see that that is an infringement on anyone’s personal liberties and I think it plays several useful roles in the Commonwealth Electoral Act. One is that it completely eliminates intimidation. If, for example, you have a number of people who intend to vote for the Labor Party and their employer does not like the idea then they can be worried about whether to take time off from work or not, but if they are able to say, “Look, it’s compulsory. I have to go and vote,” there really is not much the employer can do about it.

McHUGH J: Yes, but the question is why is it not constitutionally open to the Parliament consistently with the system of representative government to say to the electors, “You must show your order of preference for these people who stand for Parliament in this particular subdivision.”

MR LANGER: They may, but if your order of preference is none of them then that is what you say.

McHUGH J: Why can Parliament not constitutionally do it? It is a question of power. What is the legal argument against it?

MR LANGER: I put the question the other way round. The power of Parliament derives solely from the fact that it is freely chosen by the people. That is what authorises the Parliament to make laws. That is what authorises the Governor in Council to commission judges. Without that choice by the people you do not have a Parliament. If the Parliament tells you, “You must choose this, this or this,” that is not a free choice, that is not an election. It does get confused about compulsory voting because many people do object to that compulsory requirement to turn up and put in your ballot paper and they more or less pretend that what they are being obliged to do is vote for somebody who they do not support and on several occasions people have appealed against their $20 fine or even their $2 fines and gone all the way up to the High Court and have been told, “Don’t be silly. You’re just being obliged to turn up and put in your ballot paper. Of course it’s no offence to vote informal. Why waste our time?”.

There has never been any suggestion ever in the Australian Parliament, and I have spent many hours reading through Hansard, nobody has ever proposed that it should be compulsory that you vote for one of the candidates and if they had proposed it they would have been laughed out, but the Electoral Commissioner has been going around telling people it is their duty to do so and many people believe it.

The defendants have put in a great deal of extrinsic materials but they have left out some quite key ones which I will now take you to. It is about three pages further along. You have to turn it sideways, the report on “Informal Voting 1984” on page 73 there. It is the “Research Report No 1 of 1985 of the Australian Electoral Commission”. It is just after about two or three pages more of those Senate submissions and it is headed “The legality of informal voting”, paragraph 5.30. This is a report after the 1984 elections:

Prior to 1 December -

and that was the date of the 1984 election -

some attention was given in the media to the possibility of informal voting. One letter was published in a number of newspapers, countering the publicity which the Electoral Commission was giving to electors’ obligation to vote with the advice that the duty to attend a polling place stopped short of casting a formal vote. It is possible that there might have been past doubts in the minds of electors about the legality of casting a deliberately informal vote, and that opinions on the point are changing. In the post-election survey conducted by the Roy Morgan Research Centre the question was asked:
To the best of your knowledge, is casting an informal vote illegal or not?

5.31 Almost two-thirds of the sample (66.2%) answered correctly that it was not illegal to cast an informal vote, but 23.2% supposed that it was; 10.6% did not know. Response rates differed little by party support, sex, or age, though those in manual occupations and with lower incomes were slightly more likely to believe informal voting to be illegal. However, when the sample is separated by States there are 2 somewhat deviant cases: Queensland where 34.7% believed informal voting to be illegal and South Australia where only 12.9% thought this. The other 4 States ranged from 19.0% to 23.9%.
5.32 It is possible that further publicity given to informal voting in 1984 and continued public advocacy of the possibility of deliberately spoiling one’s vote, will diminish the proportion of the electorate which in December 1984 might have been put off such a course by belief that it would be illegal or by uncertainty as to its legality. However it is impossible to say whether opinion on the point had any impact on the levels of informal voting on 1 December 1984 when the motives of electors who voted informally remain unknown and there are no earlier surveys with which these figures can be compared. It would be possible in any future advertising to emphasise that a spoiled ballot‑paper is a wasted vote, and to try to invoke the sentiments cultivated in past enrolment campaigns. But it is also possible that more publicity will be given by opponents of compulsory voting or by exponents of particular policies to the registering of protest by means of the deliberately spoiled ballot‑paper.

That was presented to the joint standing committee on electoral matters and duly ignored by it. They made no reference to it in their recommendations to Parliament.

GUMMOW J: When was that presented?

MR LANGER: I will have to look up the date. Could I refer to it later?

GUMMOW J: Is it in recent months?

MR LANGER: No, this was back after the 1984 election.

McHUGH J: 1985.

MR LANGER: This was 1985. The joint standing committee made no recommendation based on that, but the Electoral Commission went ahead with their campaign. There was quite a strong campaign about a wasted vote and it was strong enough so that you could ‑ ‑ ‑

GUMMOW J: This was a long time before the enactment of ‑ ‑ ‑

MR LANGER: Long before the enactment of section 329A, but it was tabled in Parliament and is part of the extrinsic materials that can be referred to in considering how to interpret the legislation. The campaign that followed from that ‑ ‑ ‑

BRENNAN CJ: Where is this taking us, Mr Langer? If we look at the section here, 329A is directed to a person who is encouraging a person to vote otherwise than in accordance with section 240.

MR LANGER: That is correct - sorry, not to vote; it is to fill in a ballot paper.

BRENNAN CJ: Fill in a ballot paper, all right. Section 240 prescribes the requirements for a valid casting of a vote in the House of Representatives. If that is not adhered to pursuant to section 268(1)(c), then the vote is invalid unless it is saved to some extent by section 270(2).

MR LANGER: That is my understanding.

BRENNAN CJ: In other words, section 329A is a prohibition against a person printing, publishing or distributing or causing, permitting or authorising:

to be printed, published or distributed, any matter or thing with the intention of encouraging persons voting at the election to fill in a ballot paper --

that will be invalid. It will not count.

MR LANGER: That is one way of construing it.

BRENNAN CJ: It is the only way of construing it.

MR LANGER: I do not know what you mean by “will not count”. If you mean that ‑ ‑ ‑

BRENNAN CJ: It will fail ‑ ‑ ‑

MR LANGER: ‑ ‑ ‑ if you encourage a person to deliberately cast a blank ballot paper, that is prohibited by section 329A ‑ ‑ ‑

BRENNAN CJ: It will not be counted in the scrutiny pursuant to 268(1)(c).

MR LANGER: Yes, I agree with that. Is your Honour saying that the only way to construe 329A would be that if you advocate that you put in a blank ballot paper, that would be ‑ ‑ ‑

BRENNAN CJ: That you put in a ballot paper otherwise than in accordance with section 240, and if you put in a ballot paper otherwise than 240, you are encouraging that, you are encouraging somebody to cast or purport to cast a vote that will be useless.

MR LANGER: That is certainly what was put forward by the Electoral Commission, and if they are correct, then I would say the section is invalid.

BRENNAN CJ: Why do you say that section is invalid on that basis?

MR LANGER: Firstly, I would read section 240 - it says:

In a House of Representatives election a person shall mark his or her vote on the ballot-paper by:
(a) writing the number 1 in the square opposite the name of the candidate for whom the person votes as his or her first preference.

It does not add, “whether or not there is any such candidate”.

BRENNAN CJ: No.

MR LANGER: And it would be a most extraordinary piece of legislation if it did. So if there is no such candidate, you do not write the No 1 in the square and then you do not need to attend to paragraph (b) either. There is no question of Parliament having enacted a provision that says that you must write the No 1 in the square opposite the name of the candidate whether or not you choose that candidate as a representative in Parliament, and any Parliament that did enact such legislation would just look profoundly stupid because it would not be an election then. It would be the compulsory collection of ballot papers with numbers marked on them.

BRENNAN CJ: Whatever the situation may be, are you saying that 240 is invalid?

MR LANGER: Yes. If it is construed the way your Honour just put it that it did require you to write that way, then it would be invalid, and there are other reasons why it would be invalid.

BRENNAN CJ: It does require you to write that in if you are casting a valid vote.

MR LANGER: I would read it as being, “If you’re casting a valid vote”. To me, that is the meaning. It is a person marking their vote on the ballot paper. The provision is telling you how to mark your vote.

BRENNAN CJ: If you want to cast a valid vote.

MR LANGER: Yes, and if you are against all the candidates, then do not do this. I would say there is in fact an element of a duty there that a person who goes in and just fills out a ballot paper by numbering all the squares consecutively, they are properly called “donkey voters”.

BRENNAN CJ: Then 329A is directed to persons who are encouraging others to cast a vote which will not be a valid vote.

MR LANGER: The way it is worded, it could be read as persons who encourage others to fill out a ballot paper; that would be counted as a valid vote. The words “fill out a ballot paper” are different from the words used in the sections nearby, section 329(1) to (3).

BRENNAN CJ: Well, “Fill in a ballot paper otherwise in accordance with section 240”.

MR LANGER: To me, marking your vote on a ballot paper is what section 240 prescribes. It defines how one marks one’s vote. If instead of marking a vote, instead of choosing the candidates you want to represent you in Parliament, you just fill out a ballot paper, that is certainly contrary to the spirit of the Act. It is generally known as “donkey voting” and it would be at least comprehensible - whether it was in power or not - that a Parliament might wish to discourage people from encouraging that. It would certainly be very understandable if the Parliament wished to discourage the Electoral Commissioner from encouraging that, which is precisely what they have been doing.

BRENNAN CJ: Well, I confess that I do not understand the argument, Mr Langer.

MR LANGER: The argument that I am presenting now is that section 329 of the Act, not 329A but 329, deals with a number of matters in relation to casting a vote and marking a vote and how to vote cards that give advise on marking a vote. Section 329(1) talks about publishing:

any matter or thing that is likely to mislead or deceive an elector in relation to the casting of a vote.

So, for example, if you were to tell electors they can vote by striking out the names of the candidates they disapprove of, that would be misleading and deceiving, because it would result in what you just said, that the vote would not be effective, and Parliament has prohibited that by section 329(1), and it is an entirely reasonable prohibition.

The next section says that you may not distribute a leaflet - effectively they are talking about how to vote cards. The words are:

representation or purported representation of a ballot-paper ‑

That refers to the traditional how to vote card that shows the names of the candidates and the boxes. You may not distribute one of those ‑

that is likely to induce an elector to mark his or her vote otherwise than in accordance with the directions on the ballot-paper.

Now my reading of that would be that it is aimed at leaving blank squares, for example, or using ticks and crosses as you can do on senate ballot‑papers, whereas the Act permits you to use a tick or a cross for the group ticket voting, the directions on the ballot-paper require you to only use numbers, and confusion could be caused by how to vote cards that show that. Likewise, the Act permits you, if you leave one square blank, it is deemed that you wrote that as your last preference, so it is an entirely permissible vote. But if there were how to vote cards showing one square blank then, for example, in a two-seat election, in a division where there are only two candidates, there would be a lot of how to vote cards showing just a number 1 for the candidate, and electors could believe that you are entitled to just write the number 1, and they could vote that way in other seats.

So these to me are classic examples of reasonable proportionate infringements on freedom of communication in relation to elections; they are designed to protect the electoral process. Now if one was to try to construe section 329A as being another reasonable proportionate, in a regulation of the electoral process, the only construction I can think of that would fit that way is if the words “fill in a ballot-paper” are intentionally to distinguish the concept from casting a vote or marking a vote. If that was the intention of Parliament, then it is prohibiting people from encouraging voters to just fill in a ballot-paper as opposed to marking a vote, and the question would then arise for determination as to whether or not that is a valid enactment. But I do not see how one could imagine it to be a valid enactment for people to be prohibited from encouraging voters to only vote for the candidates they support; I mean, it just is not an election if you are voting for candidates you just do not support. I am not sure whether that is the argument that you did not follow or not. That is my case. The Parliament cannot tell you that you are to vote for people you do not choose as your representative in Parliament.

BRENNAN CJ: The only way in which you can cast a vote for the House of Representatives is by following the procedure that the Parliament prescribes. If you do not follow that procedure, you do not effectively cast a vote and the manner prescribed by the Parliament for casting a vote is by section 240, the marking of a ballot paper or, if you wish, the filling in of a ballot paper.

MR LANGER: And implicit in 240, I would say, is that if you do not choose any of the candidates, leave it blank. Surely it could not be that you are required to pretend to vote for a candidate who you do not choose. How could that be an election? The consequence would be that you would have a Parliament elected by donkey voters. Would you construe 240 as requiring you to write the number 1 next to a candidate who you do not choose as a representative in Parliament?

BRENNAN CJ: You proceed with your argument, Mr Langer.

MR LANGER: I would not construe it that way, but the Electoral Commissioner did or said that he did and announced publicly that that is what people are obliged to do and that we are committing a crime punishable by six months imprisonment by encouraging them not to do it. To me, if section 329A is a valid enactment, the only validity it could have would be that it would be aimed at the Electoral Commissioner, at his saying, “You cannot go round telling people to fill in a ballot paper instead of actually marking a genuine vote on it.” The whole point that the Electoral Commission has been making for a number of years is that they say you are obliged to. They say you must donkey vote. If you are not donkey voting, if you actually do prefer one of the candidates, you are obliged to fill in the preferences for all the others with consecutive unrepeated numbers, which I would call donkey preference voting.

That matter came up yesterday when the point was raised about if you think that half the candidates in an election are not worth being members of Parliament and I think it was Justice Brennan replied that everyone knows what to do: if there were six candidates and you only support three of them, you would give the three you support preferences 1, 2 and 3 and the three you do not support preferences 4, 5 and 6. Now, that is the way that most people understand it and that is what most people do, but it is not correct.

For the large majority of cases, it does not matter what you fill in with your later preferences because most people support one or other of the major parties and if they do not support one or other of the major parties, they want to affect the result of the election by giving their second and third preferences to one or other of those parties. The moment you have given one of your top preferences to one of the candidates who has any real chance of being elected, it really does not matter how you fill in the rest of the ballot paper and there is nothing with voters giving donkey preferences. They just number the rest of the boxes; that is what most voters do.

In fact, in the Senate elections, the “how to vote” cards deliberately number all the boxes in consecutive order down the ballot paper simply because it is easier to fill it out and people are less likely to make mistakes crossing from columns. The parties that issue those “how to vote” cards are well aware that those preferences will not be counted and the voters who support those parties are equally well aware that they will not be counted; they are just going through a mechanical operation so it does not matter if they simply number them any way at all.

But there is a small minority of voters who do not support any of the major parties, who nevertheless wish to cast a valid and effective vote at the election and do not wish that vote to be counted towards a party who they oppose. The consequence for them is that they have to think very carefully about how to mark their preferences because if they did follow that advice of just giving them 4, 5 and 6 without caring very much about what order the 4, 5 and 6 were, it would turn out that the vote will go to the one numbered 4.

DAWSON J: Mr Langer, all this is very interesting and it may or may not be that 329A is an undesirable provision, but why is it unconstitutional?

MR LANGER: If it was requiring electors to give consecutive unrepeated numbers on their ballot papers, whether or not they support those candidates, then it would be requiring electors to vote for candidates they do not choose.

DAWSON J: Perhaps that is so. Why is that unconstitutional?

MR LANGER: Because the Constitution rests on the fact that the Parliament is chosen by the electors. If the Parliament is chosen by electors randomly numbering pieces of paper not knowing that this is choosing a member of Parliament, then it has not been chosen by the electors. If an elector supports an independent candidate, they are entitled to vote for that candidate. My reading of the Act says they are entitled to vote for that candidate by writing 1 next to the name of that candidate and 2 next to all the other names. The Electoral Commissioner says, “No, you’re not allowed to do that. The Act says we’ll count it, but you’re not supposed to do that”. So, you are not allowed to encourage people to do that. If that is so ‑ ‑ ‑

DAWSON J: I understand that. So that your argument is not based upon any implied freedom of speech, but it is based upon the words “directly chosen by the people”?

MR LANGER: Yes, I have a similar attitude to the vagueness of implications to some that I have seen in your judgments. When one gets into ‑ ‑ ‑

DAWSON J: I understand the argument.

MR LANGER: The requirement for freedom of communication to elections arises because of the electoral process. It is not that you have a vague general freedom of communication to elections which is implied in the elections and it somehow goes around in circles. This is not about the legal fiction that was used in the Theophanous Case and other cases. There is a role for legal fictions. This is about a general election.

DAWSON J: I understand that argument too.

McHUGH J: But section 329A does not prohibit you from encouraging people to vote informally, does it? It only prohibits you from encouraging people to “fill in”, being the operative words, a ballot paper otherwise than in accordance with section 240. So, is there anything in 329A which would stop you from telling people not to vote for any candidate at all?

MR LANGER: Not in my view, but the Electoral Commissioner’s view was that I would be up for six months gaol if I did it and they wrote me a letter saying so. The Parliament’s view was the 1,2,2,2, that they intended to prohibit people from advocating a 1,2,2,2, vote. There is nothing in the parliamentary debate that suggests it was aimed at informal voting.

McHUGH J: Is that not, on its natural reading, what it is designed to prohibit; the 1,2,2,2 vote?

MR LANGER: Again, I have difficulty even there. On the 1,2,2,2, I would say that it was not a figment of the Electoral Commissioner’s imagination; that that was what was debated in Parliament, it is just that it is not in the Act. I cannot see, on its natural reading, that there is anything there that prohibits a 1,2,2,2 vote and, furthermore, neither can Parliamentary Council because among the extrinsic materials that were not tabled by the Commonwealth is the complete correspondence between the Electoral Commission and Parliamentary Council in drafting legislation and Parliamentary Council told the Electoral Commission, “This will not stop optional preferential voting”, as they call it. “If you want to stop optional preferential voting you will have to amend section 240, section 270 and section 239.”

GUMMOW J: Mr Langer, in the end we have to decide what the words that were used meant, not what they hoped they would mean but what they meant, and if Justice McHugh is right as to what 329 means in that suggestion he was putting to you, do you then say 329 would still be invalid?

MR LANGER: I do, on entirely different grounds.

GUMMOW J: What would they be?

MR LANGER: That it refers to - and this, I freely admit, is not something that should have been determined at the time of the election and it raises much wider issues - that section 329 refers to and is based on section 240. Section 240 in my view is invalid for two reasons. One is the word “or”, the issue that we were just discussing about compulsory preferential voting, of having to number all the candidates. The other is an even more harmless aspect of it which is having to number the ‑ ‑ ‑

DAWSON J: Just a second, Mr Langer. You would concede, would you, that under 240 the 1,2,2,2 vote is invalid?

MR LANGER: No, I do not concede that at all.

DAWSON J: I was just wondering that.

MR LANGER: I maintain that if that was the case, for example, then from 1919 until 1983 electors in Australia were prohibited from voting for the candidate of their choice unless they also voted for candidates they did not choose. I do not believe that was the case. What was actually happening is that most people were filling in donkey preferences because they had voted for the candidates they chose.

DAWSON J: But I am really just asking you: does section 240 in terms prohibit a 1,2,2,2 vote.

MR LANGER: Yes. It is deliberately worded in order to protect a 1,2,2,2 vote. It would be very easy to draft a provision to say, “You shall write consecutive unrepeated numbers”.

DAWSON J: I must understand what you are saying. Section 240 does not prohibit, you say, a 1,2,2,2 vote?

MR LANGER: Correct; that is what I am saying.

McHUGH J: On its terms or ‑ ‑ ‑

MR LANGER: On its terms. That is the purpose of the division between paragraph (a) and paragraph (b), to emphasise that.

BRENNAN CJ: What does paragraph (b) mean?

MR LANGER: In paragraph (a) you have to write the number 1 against one candidate. In paragraph (b) you are writing the numbers 2, 3, 4 and so on as the case requires against the other candidates. They would be together if you were not trying to emphasise the fact that there is to be one number 1; there could be more than one of these numbers 2, 3 and 4. It would be very, very easy to draft a provision that said “You shall write consecutive unrepeated numbers”. A deliberate decision was made not to write that, and I have gone back through the legislation back to 1919.

BRENNAN CJ: Whatever the history may be, I cannot understand why it is not a matter of consecutive numbers. You write 1 opposite the name of the candidate who is the first preference and then you indicate the order of subsidiary preferences by the consecutive numbers 2, 3, 4 and so on as the case requires.

MR LANGER: That is right. For example, if there are six candidates and you support three of them, then the case would require that you write the numbers 1, 2, 3, 4, 4, 4. Those are consecutive numbers.

BRENNAN CJ: That is not as the case may require, because you are looking at it from the point of view of what you wish to express in your ballot paper.

MR LANGER: Exactly.

BRENNAN CJ: But what ‑ ‑ ‑

MR LANGER: I am a voter, your Honour.

BRENNAN CJ: I understand that. What the Act is doing is saying, “There is a method by which those who are nominated for election are to be chosen. You can only choose those who are nominated and the method of choice is as prescribed. Everybody must vote and the votes must be cast if they’re to be valid in the following form”. If that is the structure of the Act, where is the invalidity?

MR LANGER: If the structure of the Act resulted in a situation where I cannot choose my member of Parliament without giving a vote to somebody who I oppose as a member of Parliament, then it is clearly invalid.

BRENNAN CJ: Why?

MR LANGER: Because the point of a parliament is to be chosen by the people.

BRENNAN CJ: That might be the fundamental ‑ ‑ ‑

MR LANGER: The problem first arose in English law prior to the revolution of 1688 to which your Honours have all sworn allegiance. Cromwell faced the problem that he believed in consent by the government as much as any man, but how is that consent to be obtained? He maintained a Rump Parliament that did not have the consent of the people which, at that time, meant the landed gentry, and it just does not work. The people preferred a weak king to a strong lord protector.

DAWSON J: It is an easy argument. You say you are compelled by the legislation to cast a vote in favour of someone, and that is not a choice because choice is completely the opposite of compulsion, is what you are saying.

MR LANGER: Yes, but I also go on to say that in ordinary statutory interpretation one would not read the legislation as though it was compelling you to choose somebody you do not choose. The concept has a cognitive dissonance.

DAWSON J: Yes, that is right, but that is at it may be.

MR LANGER: I read that legislation, exactly as Justice Brennan said, that I am reading it as a voter. I am reading it as, “How does this allow me to express my choice of members of Parliament?”, whereas the Electoral Commissioner is reading it in this extraordinary way, that it is, “How do we compel voters to support their candidates?” That is just not what elections are about.

BRENNAN CJ: Yes, that is the basic problem, is it not?

MR LANGER: Yes.

BRENNAN CJ: And if what the Parliament has prescribed accords more with the Electoral Commissioner’s view than with yours, that is the end of the case.

MR LANGER: No, because if what the Parliament prescribed is that electors of Australia are not permitted to support the candidates of their choice, then it has no power to make that prescription, because the Constitution requires that the Parliament be directly chosen by the electors.

GUMMOW J: You mean are not permitted not to support.

MR LANGER: Most election campaigns - there is a quote in the South Australian materials. There is a quote that more or less sums up the whole position here. It is from Professor L.F. Crisp, who is reasonably eminent authority on ‑ ‑ ‑

TOOHEY J: Just before you take us to that, Mr Langer, could you just clarify in relation to section 240 whether your reference to “candidate of choice” applies to paragraph (a) as well as paragraph (b)?

MR LANGER: Yes. I do not have a high opinion of the members of Parliament or the enactments they come out with, but I do not think that they are literally insane and when courts use the term “manifestly absurd” there is a bit of a fictional aspect to it.

TOOHEY J: I really was not asking for the background. I am just asking for your argument in relation to paragraphs (a) and (b).

MR LANGER: Yes, to me it would be manifestly absurd to construe that as saying that you are to vote for people who you do not support.

TOOHEY J: Vote for anybody.

MR LANGER: Yes, you are supposed to choose your representative in Parliament.

TOOHEY J: But from the candidates who are available.

MR LANGER: Yes, I think it is clear. I feel it would be desirable to allow write-in candidates, but that is not the law of Australia and that is it.

TOOHEY J: Nevertheless you attack section 240(a) as well, do you, in so far as it requires a voter to indicate a first preference?

MR LANGER: No, I do not attack it in that regard. Could I come back to that because it will start off another complex area? It is quite separate from this one. I would like to finish with the ones we are on.

TOOHEY J: All right.

MR LANGER: It is on page 59 of the green tab. It is a very long sort of undergraduate thesis about compulsory voting and I really did not manage to get through it because it is quite unreadable, but there was an excellent quote from Professor Crisp on page 25. It is the page numbers on the bottom. It is section 3, “How Compulsory Voting Works In Australia”. It is very close to the end of that tab, about three pages from the end. I do seem to have a different book. The copy that I was served with has it as page 25. It is page 27 on this copy. I was served with the first edition according to the Solicitor‑General.

BRENNAN CJ: Yes, the top of the page.

MR LANGER: Yes, that is Professor Crisp writing in 1965:

...a great many voters do not really perceive a choice between candidate A and candidate B; for many people the only perceived alternatives are to vote for one of the candidates or not to vote at all.

Now, I have not looked up the context of that, whether he was, in fact, referring to what I am referring to, but it is really well known that there are Labor voters and there are anti‑Labor voters in Australia and basically the decision that Labor voters make is whether they are going to vote for the Labor candidate or not. It is not really something they consider whether to vote for the Liberal candidate or not. There are swinging voters who make up their minds between the two and there are third parties and I do not have many friends in the other camp, but I would imagine that there are Liberal voters who do not really consider the question of whether to vote for an ALP candidate or not. They are either going to vote for a Coalition candidate or they are not going to. Now, in a compulsory voting system they have to turn up to the polls, but they certainly do not have to vote for somebody that they do not support.

It used to be said in the last century every little baby that is born into this world alive is either a little bit liberal or else conservative and that is very much the situation in Australia, that people line up in broad camps and it is an essential part of the political process that people who do line up in one broad camp or another are able to express their approval or disapproval of the way their party or what purports to be their party is going. When Mr Keating says that we had Hobson’s choice at the last election, supporters of the Labor Party are entitled to say, “Stuff you, mate, you’re not getting my vote”. That does not mean that they are going to vote for Howard or Hewson or whoever it was at the time. They are simply going to say, “Look, you haven’t performed well enough. We’re not going to support you. We’re not going to choose you as our representative in Parliament.”

That is very much an essential part of the way that elections work because without that control a party is really immune to the feelings of its supporters. It can do more or less what the Labor Government has been doing. They are saying, “We have got to win support from the Centre. We have got to win support from the Liberals, but we really don’t have to worry about what solid Labor people think about what we are doing.” That is why there have been campaigns directed against them on the basis of “vote informal”. I can imagine somebody running a campaign for voting informal on the basis of their opposition to compulsory voting and I believe they have a democratic right to do that, but it is not what I am on about.

DAWSON J: Can we get down to tin tacks? Section 329A does not prevent you from doing any of the things that you say you should not be prevented from doing.

MR LANGER: No, it was the Electoral Commissioner that was preventing people.

DAWSON J: Let us not worry about the ‑ ‑ ‑

MR LANGER: No, I do ask you to worry about it because Justice Gummow’s commission depends on it.

DAWSON J: Now, just put him aside for one moment because we are concerned with the construction of the Act. Section 329A does not prevent anyone from doing the things which you say they should not be prevented from doing. But, you nevertheless say that it is unconstitutional. Why?

MR LANGER: Okay. This is moving on to an entirely different stream of argument. The situation we have got into where electoral commissioners are being asked to stop people from campaigning against the government and where the Parliament itself has tried to enact legislation to prohibit a direct choice by voters, arises from the fact that we do not have a Parliament directly chosen by the people. I am putting this in two senses: firstly, the word “all” in section 240 requires you to number all the candidates. Now, I believe that does not require you to use unrepeated numbers, that you are perfectly entitled to give the candidates you reject your last choice. But, if an election is held as required by the Constitution in a situation where each State is a single electorate, that would be a requirement that you vote for several hundred candidates. I do not think you could have a valid law that required that you write several hundred numbers on a ballot paper in order to vote.

That, in turn, turns on whether or not the single member electorates are valid. What seems to have been accepted since federation is that the Parliament has the power to determine the electoral divisions and the number of representatives for each. What was actually given to the Parliament in the Constitution was a power to make laws for determining and the power to make laws for determining is not the same as a power to determine and I think your Honours are reasonably familiar with the division of the Constitution into separate branches of government that make laws for determining and make determinations under those laws.

I have brought along a vast amount of material on the reason for the determination that there should be single member electorates and it boils down simply to this: that enforces a two‑party system. That if you have multi‑member electorates as envisaged by the Constitution, if you have a system of directly choosing representatives in Parliament as envisaged by the Constitution, you end up with multiple parties in Parliament. Some people say that leads to less stable government ‑ that is a matter of opinion ‑ but it is certainly considered undesirable by the two main parties in Parliament and they have determined that in order to ensure that there shall be two large parties in Parliament, and in order to ensure that smaller parties will not be represented in the lower House, they have determined that each electoral division shall have one member. If they have the power to make that determination, then we are stuck with it. But, I maintain that they did not have the power to make that determination.

DAWSON J: We are concerned with the validity of 329A.

MR LANGER: The connection between the two is that 329A is to encourage people to vote otherwise than in accordance with section 240. If section 240 is invalid, you cannot have an enactment that is prohibiting you from encouraging persons not to vote that way. If, for example, this Court determines that the next general election in Australia must be held in accordance with the Constitution, that there are single member electorates, then you could not uphold a law that says you must vote for several hundred candidates. It just could not be a valid enactment that says that, in the State of Victoria or New South Wales , there are 500 candidates on the ballot paper; you have to write a number next to each one for your vote to be counted.

BRENNAN CJ: Mr Langer, the question reserved related to 329A only; the constitutional validity of section 240 has not been in issue.

MR LANGER: Well, 329A, the whole content of it, it says nothing else but that you are prohibited from encouraging people to vote ‑

otherwise than in accordance with section 240.

BRENNAN CJ: That is right.

MR LANGER: That is all it says. So it is intimately bound up with the validity of 240.

McHUGH J:Its construction is, but not its constitutional validity.

MR LANGER: Well, if in the course of construing it you end up having to construe it as meaning that you must vote for 500 candidates in a House of Representatives election, then you would have to determine that it was invalid. I think that if an election was called in which there are 500 candidates, it would be perfectly lawful to go around encouraging people to cast their vote any way.

BRENNAN CJ: You may think that, but the question is whether or not 329A is or is not valid having regard to the terms of section 240.

MR LANGER: Right. And if section 240 requires people to vote for 500 candidates, or to write 500 numbers on the ballot-paper, then I maintain that the election must be held, despite section 240, and it could not be held under those circumstances.

DAWSON J: Can I see if I can answer that question. Assuming section 240 to be valid, you would have no complaint about section 329A?

MR LANGER: Assuming it is construed as the fill in the ballot-paper aimed at donkey voting.

DAWSON J: Well just assume the validity of 240, whatever it means.

MR LANGER: No, because, this is the problem; the Electoral Commissioner is maintaining it means one thing ‑ ‑ ‑

DAWSON J: Let us not worry about the Electoral Commissioner. You assume the validity of 240, just for the purposes of argument.

MR LANGER: I cannot; I can only express an opinion about the validity of an enactment after working out what it means.

DAWSON J: You can; you can do it very easily. Assume whatever it means it is valid.

MR LANGER: No, that is just not the way my mind works.

DAWSON J: Well I know; I am trying to find out where we get to. If that were so, would you have any argument that section 329 were invalid?

MR LANGER: I am sorry, you are saying, assume section 240 is valid?

DAWSON J: Yes, and then do you have any remaining argument if that is so, that section 329A is invalid?

MR LANGER: The argument I related earlier about donkey voting, I would then raise the question of whether Parliament can validly enact that. If you construe it that it is aimed at people who are encouraging donkey voting, then we ‑ ‑ ‑

DAWSON J: All it does is to prohibit people from doing certain things which is encouraging people to vote not in accordance with section 240. Assume the validity of 240, is there any reason you can advance why 329A is invalid?

MR LANGER: It depends on the construction of 240. If otherwise than in accordance with 240 means (a), then it could be valid; if it means (b), then it could not be valid.

TOOHEY J: Could you just tell us again, succinctly, what is the construction you place on section 240? I understand it in relation to paragraph (b), but I asked you earlier about what you say in regard to paragraph (a).

MR LANGER: In relation to paragraph (a) there is another entirely separate problem.

TOOHEY J: I am not asking you about problems, I am just asking you what meaning you attach to section 240?

MR LANGER: I would attach to it the meaning that “If, for example, you support the ALP candidate in an election, you should write the No 1 next to that ALP candidate”. That is what its plain words mean.

TOOHEY J: But do you accept it imposes an obligation on the voter who fills in a ballot paper to write at least the No 1 against the candidate of first preference?

MR LANGER: I do not think so.

BRENNAN CJ: Leave the word “obligation” out. Do you understand section 240 to proscribe the conditions upon which a vote will be validly vast, “validly” in the sense of counting in the scrutiny?

MR LANGER: Yes, with one exception, that there are various provisions; for example there is a deeming provision in section 168 that says if you leave one square blank, it will be counted and, therefore, it will be deemed that you marked it in accordance with section 240.

BRENNAN CJ: Leave the deeming aside for the moment. If section 240 prescribes the conditions for the casting of a vote that will be counted in the scrutiny.

MR LANGER: Yes, that is the way I would read it.

BRENNAN CJ: What is the constitutional invalidity of 329A which prohibits people from encouraging those who are voting from filling in their ballot paper so as not to comply with the condition?

MR LANGER: I think that is covered by 329(1). That is what the other provisions are directed against.

BRENNAN CJ: Maybe it is.

MR LANGER: Section 329A, the purpose of it was to confuse electors about 1,2,2,2 voting. That was the declared purpose in Parliament.

BRENNAN CJ: Whatever the purpose may be, if 240 prescribes the conditions, what is there invalid about 329A?

MR LANGER: The problem that would still arise is that if a Parliament enacts legislation not for the purpose of clarifying or enacting laws, but for the purpose of following the suggestion made by the Electoral Commissioner of “let us confuse people about the laws”, that is not a valid enactment of the Parliament. They can bring in entirely harmless legislation. If the purpose of the legislation is not its harmless content, but to enable an Electoral Commissioner to intimidate people in an electoral campaign, then that purpose would defeat the validity of the legislation.

This is not a normal constitutional argument that normally you are concerned with the powers of a Parliament to enact legislation and the relationship between Commonwealth and State powers and so on. I am saying that this legislation was enacted for the purpose of influencing the result of a general election. The words were chosen carefully because they knew it would be invalid to say one thing but they wanted to provide ammunition for the Electoral Commissioner. I want to take your Honours through the correspondence with the Parliament Council where that comes out.

BRENNAN CJ: No, we will not be accepting that.

MR LANGER: I would put it to you on this basis, that there is a general - it has been argued in terms of a limitation on powers, but I do not think it is a limitation on powers. There is a duty expressed in the Constitution to enact legislation for the peace, order and good government of the Commonwealth. That is as wide and as plenary a power as you can get, but the purpose of those words “peace, order and good government” is to express the concept of a fiduciary duty. It expresses the fact that these are powers vested in the Parliament in a sort of trustee type relationship for the benefit of a society. The courts have held repeatedly that the words “for the Commonwealth” does not refer to a territorial limitation and the words “peace, order and good government” are obviously the widest possible description of subject matter. They do not impose any limitation on subject matter but they do remind the Parliament of its duties as a trustee.

That seems to be the basic thinking behind the origin of those words. They go right back to the 17th century. They first appeared in the royal instructions to colonial governors in America. The author of those words was John Locke, at that time the secretary to the Board of Trade. He wrote a fairly extensive treatise on government explaining ‑ ‑ ‑

BRENNAN CJ: What is this leading to, Mr Langer?

MR LANGER: That Locke’s position on peace, order and good government is the sort of constitutional foundation on which Parliaments and laws have been erected since 1688.

McHUGH J: This is a natural law theory of the Constitution, is it?

MR LANGER: It is often put in natural law terms. I think I would prefer to put it in common law terms. A lot of the natural law stuff is very fuzzy and they sort of have it coming down from God or wherever. I would say it is more about the common law originating in the society, that it expresses the existing social relationships. For example, it goes back to Bracton saying that the king is made by the law, and Cook and Blackstone. They all recognise that Parliament’s authority derives from the common law. That is certainly the case in Australia. There is an excellent article by Sir Owen Dixon in “Jesting Pilate” on the common law foundations of the Constitution. This authority to enact laws is very much opposed to the sort of continental theory that the State creates the legal system.

BRENNAN CJ: We are familiar with some of the general concepts, but what is the basic proposition that is relevant to the validity of 329A?

MR LANGER: That a power to elect laws is for the benefit of a society, not ‑ ‑ ‑

BRENNAN CJ: And there is a power of judicial review to determine whether or not a law is for the benefit of society; is that the proposition?

MR LANGER: That would be very dangerous if you determine - I would certainly not invite the judiciary to decide in general ‑ ‑ ‑

BRENNAN CJ: Then what are you submitting?

MR LANGER: To determine whether a law is enacted in breach of trust. For example, if the powers conferred on a trustee entitle them to dispose of the trust property in all sorts of ways, it is not up to the Court to decide what would be for the benefit of the beneficiaries; it is up to the trustee. But if the trustee decides that they are going to trust funds for their own benefit, that is where a court steps in and says, “You’re not performing your duties as a trustee”. I do not think one could contemplate a situation in which courts would judicially review whether laws are good policy for the benefit of society, but I think one must contemplate a situation in which, where there is a breach of trust by the legislature, the courts step in and say, “No, your powers are vested in you as trustees for the society. You are not to use them for your own benefit”. The particular reference to peace, order and good government in Locke’s treatise on government is immediately followed by the consequences of that breach of trust.

BRENNAN CJ: Mr Langer, this line of argument relevant to the validity of 329A is so remote from constitutional doctrine that you are wasting our time and we do not propose to give you further time to develop it. If you have a more precise argument to deliver, you are at liberty to deliver it.

MR LANGER: All right. Returning to the very precise, very narrow arguments ‑ ‑ ‑

McHUGH J: Just before you do. Can I see if I have understood what you say about 240. Is your point about 240 that if an elector has a first preference, the candidate will place that first preference in the square opposite the name of that particular candidate, but if the elector then has no other preferences ‑ ‑ ‑

MR LANGER: Then under 240, they should write the No 2 on the other squares.

McHUGH J: But if they have none, they do nothing.

MR LANGER: No. If you want to vote for one candidate, then section 240 would require you to vote the No 1, and it still requires you to fill in all the other squares. So the only thing you can do to avoid voting for other candidates would be to fill in all the other squares with a 2. I think you are likely to run out of time. I would like to actually put in a written analysis of the detailed provisions, because what actually happened is that this has been in the Acts from 1919 to 1983, and then there were savings provisions put in in 1983 which were intended to save votes that had a gap in the consecutive numbers. I maintain that the votes that were 1,2,2,2 were always valid, were never informal throughout that entire period.

McHUGH J: Why do you say that (b) requires the elector to put 2,2,2, because in that case, if you have got no order of preference, you are not required to do anything, are you?

MR LANGER: I will explain the reason why you are. That would result in optional preferential voting, and the Parliament decided to have a system of compulsory preferential voting for two reasons.

McHUGH J: It is not a question of what they may have decided in some abstract sense. It is a question of what they have enacted, is it not?

MR LANGER: I believe that they have enacted it by using the word “all” and that you can gather that from the names of all the remaining candidates. It is not to the remaining candidates for whom the voter votes; it is all the remaining candidates, whether you choose them or not. And there is a justifiable purpose for that. What happened when optional preferential voting was first introduced in Western Australia is that many people ignored it; the major parties ignored it and people thought that they would be partially voting against their first preference if they did fill in their later preferences.

So, the mischief to be cured was that people were not taking advantage of the additional options offered to them. And the simple way of curing that was to say, “Well, you’ve got to write the numbers anyway, but it is still, of course, up to you what numbers you write”. So, it was not designed to coerce people to choose candidates who they do not support. There was no element of coercion there. It was simply to ensure that, just the same way you force them to go to the polling booth, you force them to write a number in every square. And people did and they still do.

So, I have no objection to that providing we are talking about a reasonable number of candidates. Once you start talking about elections that are being held in State‑wide electorates with several hundred candidates, it becomes totally unreasonable. So, my objection to “all” is purely based on the unreasonable situation.

McHUGH J: I understand that.

MR LANGER: The other element that is very simple and clear‑cut is that, yes, it is meant to say that you vote for the candidate of your first choice ‑ the one you prefer to get elected, you should write the No 1. That seems entirely sensible; nobody could argue that that is not what everyone understands elections to be about. Unfortunately, that is not the way that votes are counted in Australia. I have provided in the materials a detailed article on paradoxes of preferential voting and the statistics for the Wills election in the last general election.

The situation in Wills was that if between 4,000 and 9,000 ALP voters had voted for the Liberal Party as their first preference and had put the ALP last, then the ALP candidate would have won the election. That, to me, is an extraordinary way of counting the votes. To me, the concept not merely of directly choosing, but of choosing at all, implies that the more people who vote for you, the better chance you have of being elected and the more people who put you last, the less chance you have of getting elected. And if that is not the way they count the votes, then they are not counting the votes correctly.

It is what they call a paradox. It is not the situation that arises in the larger majority of electorates where there is a basic division between two major parties. It arose in the Wills electoral division because there is a three‑way split there, that one of the candidates who you have probably heard quite enough of, Mr Cleary, has the second preference support from both of the other parties. As a result, he has a large majority against either of the other candidates and is the person that would be bound to win the election on any normal election system. And he did, in fact, win the election. But, he only won it because he came second in the count. If he had come third and if the Liberal candidate had come second, then the ALP would have won.

So, the election was really determined by whether the ALP had the largest number of votes. If Cleary had come last, his preferences would have been distributed and the ALP would be elected. If the Liberals had come last, their preferences would be distributed and Cleary would become elected. So, it entirely depended on whether it was Cleary or the Liberals who came last of the three, after getting rid of the minor candidate. And it is literally the case that the ALP could have won that seat if they had had the sense to vote for the Liberal Party and in doing so, they could have won the seat by putting the ALP last. I maintain that is not a valid way of choosing candidates.

Section 240 could almost be read as a constitutional requirement directed at the Parliament, that if you are going to have a preferential voting system then the method of counting shall be such that voters who vote this way will get the result they expect, but it cannot be a requirement placed on voters and, in particular, it is another reason for people voting informal and for giving 1,2,2 votes. For example, if there had been a communist candidate in Wills and I wanted to support them, I would have voted 1 for the communist. I still had to give the preferences to others. Now, I prefer the Liberal Party to the ALP and I prefer Cleary to the ALP, so I would have gone 1 communist, 2 Liberal, 3 Cleary, 4 ALP purely on the basis of how strongly they are likely to oppose the Government in office at the moment, you know, that Clearly would at least occasionally vote against them and the Liberals would vote against them most of the time and the non‑existent communist would actually say something I might agree with, but if I did vote that way the consequence would be that my second preference going to the Liberals would help elect the ALP, who is my last preference, and that is just not what I want to do.

So if I want to vote according to my real preferences I should vote 1 for the communist and 2 for all the others and the same is very much true for the Liberals. There were 30,000‑odd Liberal supporters there who knew perfectly well that they were in just as strong position in the Wills electorate as the communists would have been. They had no way of electing a Liberal candidate in Wills, but they did prefer to elect Cleary rather than the ALP candidate.

BRENNAN CJ: But is that not indicating that your complaint is about the provisions dealing with the scrutiny? If the preference is as you have indicated that you would have if you were notionally voting in Wills, your preference would have been 1, 2, 3 and 4 as might be recorded in accordance with section 240. What the result of that would be would be another matter.

MR LANGER: I suggest that there has to be a very direct and close connection between the way the people vote and what the result is.

BRENNAN CJ: What has that to do with the validity of 329A?

MR LANGER: I would say that one interpretation of 329A is that if I was to go around encouraging the Liberals in Wills to vote informal because otherwise they would help elect the ALP I could be held to be violating 329A without the manifestly absurd constructions that could be put on it. That to go and tell a Liberal voter, “Look, if you vote in accordance with section 240 by putting the No 1 in front of the Liberal candidate and putting the ALP candidate last, the consequence of doing so is that the result of the count will be that the ALP candidate will be elected”, if I go around telling them that and distributing copies of this article on the paradoxes of voting which is in the material I think it could plausibly be argued that what I am doing is encouraging people to vote otherwise than in accordance with section 240.

BRENNAN CJ: That is saying, in other words you would be encouraging them, people, to purport to cast a vote which would not be counted.

MR LANGER: No. I am sorry, there is the remaining problem. If I encourage the Communists to not vote - you know, if you encourage anyone to vote otherwise then in accordance with their preferences, then you are encouraging them to vote otherwise than in accordance with section 240.

BRENNAN CJ: No, that is not what 329A says. It says if you encourage them to:

fill in a ballot paper otherwise than in accordance with section 240.

It says nothing about what their subjective view or desire may be.

MR LANGER: But section 240 says that you should mark the candidate who you vote for as your first preference. Right. It does not say, you should read up on how they are going to count the votes, figure out the consequences and realise that you better do this if you want to do that.

DAWSON J: That is all right. If you come to that conclusion, you have another first preference for a different reason.

MR LANGER: I think section 240 could only be valid itself it the votes are counted in accordance with section 240. You cannot have an electoral system in which the votes are recorded one way and counted another. I mean, this is very easy with other electors ‑ ‑ ‑

BRENNAN CJ: It is all very well saying you cannot have an electoral systems, and you say that repeatedly Mr Langer. We are concerned with 329A. We have an electoral system, the electoral system is as prescribed by the Act otherwise than in accordance with 329A. In the context of that electoral system, is 329A valid or not? That is the problem.

MR LANGER: No, it is not.

BRENNAN CJ: Very well, then you better tell us why.

MR LANGER: Because, if you vote in accordance with section 240 you will be making a big mistake and 329A prohibits telling people about the big mistake you would be making, and it is only a mistake in certain electorates, such as Wills, but people are entitled to publicise the fact that it would be a big mistake to vote for the candidate of your first preference by writing the number 1 in the square opposite the candidate. You are much better off - for example, the ALP votes were better off if they voted for the Liberal candidate, and that is encouraging them to vote otherwise than in accordance with section 240, and it does result in immense confusion.

One way the Parliament could react to that confusion is by prohibiting publications encouraging it; the other and more sensible way that would be reasonable and proportionate, is by fixing the method of counting the votes so that it works, and I think it is an invalid enactment for Parliament to try and prohibit telling people about the way the voting system works rather than fixing it. I do not understand the problem in that argument. Is it clear to you what I am saying, that the voting system does not work, because you seem to be viewing it with remarkable equanimity? Well then I will continue explaining it.

There is an article on paradoxes of voting which is in the plaintiff’s materials. It is item 18 in volume 3. It immediately follows the article about Chief Justice Lutwyche on the invalidity of the Queensland Parliament. It goes through the various problems that can arise using the alternate vote system that we use in Australia. It basically treats it as something of a joke. The first paradox there listed is the “No-Show Paradox”, that:

The addition of identical ballots with candidate x ranked last may change the winner from another candidate to x.

The example of that would be that if Cleary had come second and the voters had turned up that had their first preference for the Liberals and their last preference for the ALP, then we would be all watching it on the screens in the National Tally Room and seeing on TV that the announcement would be made, “We’ve found another couple of ballot boxes. They’ve all voted for the ALP last. The ALP has won as a result”, because the consequence would be that the Liberal candidate would move ahead of Cleary. Cleary is then declared defeated and his preferences then elect the ALP. That would be regarded as something of a paradox. Similar election results announced in the Philippines when they were counting votes led to a good deal of civil disorder. The next paradox is the “Thwarted-Majorities Paradox”:

A candidate who can defeat every other candidate in direct‑comparison majority votes may lose the election.

Now, that is the situation that Cleary managed to avoid. He was the candidate that had a large majority against the ALP with the support of the Liberal preferences, and he had a large majority against the Liberals with the support of the ALP preferences, and he was duly elected. The other paradoxes all result from the fact that he may not have been. That if the Liberals had had that extra 4,000 from ALP supporters, then despite still having a large majority against both the others, he would not have been. I maintain that is not a choice by the people. It is a choice by the voting system.

TOOHEY J: But it is not the question we have to decide. You may have complaints about the electoral system generally, but for the purposes of this hearing, we take the Act as we find it and ask whether in the light of the Act, section 329A is valid or otherwise. How does it assist us to get immersed in the complexities of the voting system?

MR LANGER: Because, that is what voters have to do when they go to elections. They have to get themselves immersed in these complexities and decide how they are to mark their ballot papers in order to choose the candidates they prefer, and if there is a valid enactment that prohibits people from explaining these complexities and saying, “No, in Wills, if you support the Liberals first and Cleary second and the ALP last, the way you should vote is for Cleary first, and it does not really matter what you do from then on”. If 329A prohibits giving that explanation which is, I think ‑ ‑ ‑

BRENNAN CJ: There is nothing in 329A that prohibits giving an explanation, is there?

MR LANGER: If you advocate that a person vote by not writing the No 1 for their first preference, I do not think it is a malicious misinterpretation of that enactment.

BRENNAN CJ: That was not what I was putting to you. I was questioning your statement that section 329A is a ban on explanation of the voting procedure.

MR LANGER: No, it would be advocacy. It is a ban on deliberate encouragement. I am not putting forward the sort of malicious misconstruction that the Electoral Commissioner puts on it that they are prohibiting something quite absurd. It would not be absurd to read that as a prohibition on urging Liberal candidates to vote for Cleary instead of voting for the Liberal candidate. One could quite plausibly read that as what it prohibits; that people are supposed to vote for the candidate of their first preference by writing the No 1 there.

BRENNAN CJ: You are misreading what section 329A says. It deals with the form in which the vote is to be cast.

MR LANGER: My concept of a vote is that it is a formal expression of a voter’s choice of who they want to represent them in Parliament.

BRENNAN CJ: That may be your concept of a vote. The language of the section is what we are concerned with and the language of the section deals with the filling in of a ballot paper.

MR LANGER: And the Constitution does not make much of the word “vote” and has no reference whatever to ballot papers. What the Constitution refers to is choices made by electors of their representatives in Parliament.

McHUGH J: I appreciate that. Is there anything in the materials, Mr Langer, showing the history of preferential voting? It started in the 1860s, but to what extent was it used in Australia prior to Federation?

MR LANGER: It was used in Queensland with a system where you excluded all the candidates except the top two and that was found not to work because if there was a split between, say, three on the free traders and two on the protectionists; that could result in the two protectionists being the top two, even though the free traders had a majority. So, it got abandoned there. It was adopted in Western Australia about 1907, I think, and made compulsory in 1911 and Victoria never had optional preferential voting but had it compulsory from 1911.

McHUGH J: Where is this referred to in the materials?

MR LANGER: Yes, it is referred to there. It has been used in other countries as well. The only country that had it for an extended period was Papua New Guinea which abandoned it after independence. Basically, it has been rejected everywhere in the world except Australia. There is nowhere else that uses this absurd paradoxical voting system described in this article.

TOOHEY J: As I suggested to you earlier, that is a complaint that you have about the electoral system.

MR LANGER: And 329A is saying that you cannot encourage people to vote otherwise than in accordance with this absurd paradoxical election system.

TOOHEY J: No, it says you cannot encourage people to vote otherwise than in accordance with section 240, if they are going to fill out a ballot paper.

MR LANGER: And section 240 specifies that you ignore the paradoxical character of the electoral system.

TOOHEY J: Yes, but it is a starting point. Section 240 is not under challenge. We take section 240, as we have taken the other sections in the Electoral Act, and in the light of those sections, have to determine whether section 329A is valid or otherwise. I mean, that is the question that has been reserved for the consideration of the Court.

MR LANGER: Yes. And, if you are left with section 329A means nothing at all, Parliament has threatened six months imprisonment for doing something that is completely covered by other sections and had no purpose enacting it, then you can conclude that it was valid and that they are wasting everyone’s time, that this is nothing unusual for a parliament. If you think they were actually trying to stop something, then you have to consider whether they had the power to stop it. I think it is a plausible interpretation of the legislation that they do not want people going around encouraging voters at the election to vote otherwise than in accordance with section 240. And section 240 clearly says that you are to vote for the candidate you choose as your first preference.

BRENNAN CJ: Mr Langer, in an endeavour, once more, to see if we can identify precisely the question that we have to decide, would you turn to section 329A, to its text. The critical concept in 329A is the filling in of a ballot paper otherwise than in accordance with section 240. Do you see those words?

MR LANGER: Yes:

voting at the election to fill in a ballot paper otherwise than in accordance with section 240.

BRENNAN CJ: Focus on the words “to fill in a ballot paper otherwise than in accordance with section 240”. Does that not indicate that the section is concerned with the form prescribed by section 240 for the filling in of a ballot paper?

MR LANGER: No.

BRENNAN CJ: Why not?

MR LANGER: Because the way that that would be covered by 329(3), that there is a real problem with how to vote cards and Parliament has dealt with it and it would be covered by 329(1). What this arises from is a series of court cases which I have included in the plaintiff’s materials in which it was being claimed by the Electoral Commissioner ‑ ‑ ‑

BRENNAN CJ: For whatever reason, let us come back to the words again. If it is not, as I have put to you just then, what construction do you put on the words “to fill in a ballot paper otherwise than in accordance with section 240”?

MR LANGER: I put two alternative possible constructions, neither of which is the Electoral Commissioner’s construction. One is that it is aimed at encouragement of donkey voting ‑ ‑ ‑

BRENNAN CJ: Whatever the aim might be, what is its operation?

MR LANGER: The operation of that would be that people who print, publish or distribute any matter or thing with the intention of encouraging persons voting at a House of Representatives election to simply number the squares on their ballot paper in the proper form without an intention of choosing candidates, are committing an offence. An example of such a publication would be the ballot papers themselves. But it has been held by Justice Vincent ‑ he issued an injunction restraining me, under section 329(3), from encouraging people to mark a blank ballot paper on the basis that this was contrary to the directions on the ballot paper.

That application for an injunction was made by the Electoral Commission. They argued that the directions on the ballot paper require you to mark a vote, whether or not you choose any of the candidates and they claimed that by encouraging people to not mark a vote at all, if I did that on a how to vote card with a representation of a ballot paper, that would be committing an offence under 329(3). They also argued that it would be encouraging people to breach section 240.

Now, the court ruled in the same way that I think people have been agreeing here, that there is no obligation under section 240 to mark a valid vote and refused an injunction based on that. He said, “You are perfectly entitled to encourage people to cast an informal vote. I will not restrain you from doing so on the basis of section 240.” And he said you are perfectly entitled to say, “A plague on all your houses”, but he gave an injunction against using a how to vote card because he said it was otherwise than in accordance with the directions on the ballot paper.

BRENNAN CJ: That is 329(3).

MR LANGER: That is right.

BRENNAN CJ: Now we are talking about 329A. Would you come back to those words, “to fill in”.

MR LANGER: What I am saying is that on an application by the Electoral Commission it has been held by Justice Vincent of the Supreme Court of Victoria that the directions on the ballot paper are intended to encourage persons voting at the election to vote otherwise than in accordance with section 240.

BRENNAN CJ: Be it so, would you please give me any construction of the words in 329A “to fill in a ballot paper otherwise than in accordance with section 240” as meaning anything other than to fill in a ballot paper as a matter of the form of completion in accordance with section 240.

MR LANGER: Yes, I would say that the possible interpretation of the provision is that it is intended to prohibit the Electoral Commissioner from distributing the current ballot papers. What happened following that court case ‑ ‑ ‑

BRENNAN CJ: Please, whatever might be the intention, what meaning? We are concerned with meaning and operation of words, not intentions.

MR LANGER: That the most obvious thing to think of as regards “any matter or thing encouraging persons to fill in a ballot paper” is the directions on the ballot paper. That is what first comes to mind. The directions on the ballot paper are what encourage people to fill in ballot papers in certain ways and what I am putting to the Court is that one possible interpretation of the section is that it prohibits the distribution of ballot papers with misleading directions. I can show you the legislative history on which that is based. The ballot papers previously had the directions - for a six‑candidate election they said, “Write the numbers 1, 2, 3, 4, 5 and 6.” On the basis of those directions on the ballot paper Justice Murphy of the Victorian Supreme Court issued an injunction against a candidate, William Hartley, and Justice Vincent of the Victorian Supreme Court issued an injunction against Harry Van Moorst and myself. As a result of those ‑ ‑ ‑

BRENNAN CJ: Mr Langer, I do not want to interrupt you but I am endeavouring to discover the basis on which your argument is founded. I will ask you this question only once more and then I shall desist. I am endeavouring to discover what are the meaning of the words of 329A, and in particular the words “to fill in a ballot paper otherwise than in accordance with section 240”, which you place upon those words in order that we can consider whether or not, assuming the context of the rest of the Act, 329A is invalid.

MR LANGER: And I am putting forward two alternative constructions ‑ ‑ ‑

BRENNAN CJ: Forget what the purpose might be or the history of any litigation; just give us your view of the meaning of those words.

MR LANGER: One alternative is that it prohibits the distribution of ballot papers with misleading directions, and it would likewise prohibit other electoral materials, posters, and it prohibits publishing and broadcasting. The problem in interpreting that and in making that construction, you would consider the mischief to be cured and the cure provided. What happened is that this provision was enacted on the last day of the Parliament when they did not have time to carefully frame the text for new directions on the ballot paper. They had just received ‑ ‑ ‑

DAWSON J: Now this is not the meaning of the words; come back to what the words mean. They mean A and B; what is the A and B?

MR LANGER: Well the A is that it covers “any matter or thing” which is deliberately as wide as possible. Any matter or thing covers anything, but for example, if you contracted out the distribution of ballot papers, there is no way you can avoid any matter or thing covering ballot papers as well as other things; and the B is that the thing that encourages persons to fill in a ballot paper is the directions on the ballot paper; that is where people get their guidance as to how to fill in a ballot paper from. That those directions either encourage them to vote in accordance with section 240 or they encourage them to vote some other way. If your construction of section 240, which I agree with, is correct, that you are not obliged to fill in any numbers for candidates that you do not support and that you are entitled to give an equal last preference to each candidate, then certainly the directions on the ballot paper do not tell you that, and most voters do not know that, and I have read to you the opinion surveys by the Electoral Commission where they are calculating how successful they have been in misleading people.

So I think it would be quite plausible for the Parliament to prohibit the distribution of ballot papers with misleading directions, and I invite you to make that construction of the Act; I think it would be, what is called, an equitable interpretation of a statute, that was recommended by Blackstone and it has been done to quite extreme lengths on some occasions, but it would not be extreme at all in the circumstances of this case to conclude that, whereas no sane Parliament would seek to coerce people as to how they are voting, it would be entirely plausible for a Parliament to require that ballot papers be printed with accurate directions on them.

And there are powers under the regulations for the Governor‑General in Council to provide for proper ballot papers, the text of the directions can be amended, and in particular there is a power in the Act for the Governor-General in Council to add squares to the ballot paper, and if you look through the materials, at a sample of a ballot paper, you can see immediately that there is a square missing, and there are these very large type-face directions that occupy the place where that square should go, and it is the square that says, “none of the following candidates”, because it really is misleading people for the Electoral Commission to tell people that they are required to vote and for the ballot paper to give no hint at all. I mean, the South Australian case strongly emphasised that the ballot papers show very clearly that you are not legally obliged to mark this ballot paper. Most voters do not have a clue about the 1,2,2,2 voting, and the ballot paper should explain how those votes are counted, and this is -I can see that I am trying your patience a bit, so I am going to come back to some very strict statutory interpretation.

The Act provides very detailed provisions for counting 1,2,2,2 votes. They are counted differently from exhausted votes, and that has always been the case. That is critical to answering my argument about the paradoxes of voting. What happens if you do have 1,2,2,2 votes is that you cannot declare a candidate elected with an absolute majority when an absolute majority of voters have put that candidate last. So Cleary could have protected himself against manoeuvring between ALP voters and Liberal voters and so on by inviting his supporters to vote for him and giving equal last preference to the other candidates.

The consequence of that would have been that neither of the other candidates could obtain an absolute majority, and the consequence of that would have been a supplementary election. That is the way that the Act is deliberately constructed. When you go back to legislation, it originated in a Commonwealth Bill in 1900 and in a Victorian Bill in 1902. It was designed by Professor E.J. Nanson specifically for that purpose, that you cannot declare that somebody has an absolute majority when an absolute majority of voters have explicitly put them last.

That was the way that 1915 Victorian Compulsory Voting Bill was written, because under an optional preferential system, you can say, “All right, they’ve left those candidates out, but they haven’t put them last”, they have not explicitly said, “We reject those candidates”, whereas once you have a compulsory preferential system, then voters who are explicitly saying, “This candidate is my last choice”, are rejecting that candidate and it would be manifestly absurd to have a counting system in which you transfer those last preferences and declare the candidate elected on the basis of last preferences.

So the whole structure of the counting system is oriented around the concept of an absolute majority. I have also cited in the list of cases cases in which that is stressed. I can give the Court the name in a supplementary written submission, but the Court has ruled that it is quite central to the whole construction of the Act, the concept of preferential voting involving an absolute majority. For exhausted votes, an absolute majority is redefined by subtracting the number of exhausted votes, which is more or less the same thing that happens under optional preferential voting. Where a voter has complied with section 240 by clearly indicating that they reject a candidate, then those votes remain in the count. They are not deducted as exhausted votes, and the result is that other candidates can only obtain an absolute majority against those votes.

That is a very central provision of the Act which voters are entitled to be aware of and Parliament is entitled to prohibit the distribution of ballot papers with directions that did not draw voters’ attention to that, because most people in Australia make exactly the same mistake about how to vote that you made when you said that people can put the candidates they reject and vote for them as 4, 5 and 6. If they do that, they are casting a vote for the No 4. If that candidate is elected, then they are casting a vote for the candidate 5. It is a mistake because, if they are voting against those candidates, they should have marked them all “4”.

If the Chief Justice of the High Court can recommend that mistake, it is not surprising that most electors in Australia will make that mistake. Most Australians do not know how the Electoral Act is designed, how it was designed to enable them to choose their representatives in Parliament. Parliament has an obligation to prohibit the distribution of ballot papers that mislead electors, so I think that is a reasonably straightforward construction of the section and I invite the Court to adopt it.

BRENNAN CJ: I think I should tell you that, for my part, I would construe 329A as follows: namely, that by any of the means of printing, et cetera, the prosecution would have to prove that there is the intention on the part of the accused person to encourage another person at an election to fill in a ballot paper and next, intentionally encourage that person to fill it in either, and I go back to section 240, by not writing the No 1 in the square opposite the candidate for whom the person votes as his or her first preference or by not writing the Nos 2, 3 and 4, and so on, in numerical order in the squares opposite the names of all the remaining candidates.

I let you know that that is the construction that I presently place upon 329A so that you can, if you wish, deliver whatever arguments you see fit in relation to the constitutional validity of 329A, placing that construction upon it.

MR LANGER: Would it follow from that construction that if one explains to a Liberal Party supporter who prefers Cleary as their second preference that the way they should fill out their ballot paper is by writing the No 1 against Cleary and the No 2 against the Liberal candidate? Would that, under your construction, be encouraging persons to vote otherwise than in accordance with section 240?

BRENNAN CJ: I do not propose to answer hypothetical questions. I simply state to you what is the construction that I place upon 329A.

MR LANGER: But the purpose of a judicial construction would be to make it clear. I am not clear as to whether, if you construe it in that way, it would be an offence for me to encourage persons who wish to express their support for a Liberal candidate to vote for Cleary rather than for the Liberal candidate if they want to put the ALP last.

BRENNAN CJ: Mr Langer, the function of the Court is not to give advice. It is to assist, so far as practicable, a party who is putting forward a submission to make the submission relevant to the issues. I have endeavoured to do that.

MR LANGER: Right. Because I, as a voter, still do not know, even after the section has been construed for me by the Chief Justice of the High Court, whether I am entitled to print, publish and distribute material of that kind. I maintain that in that state of ignorance - and I have gone to considerable trouble to have it clarified for me - that it could not be a valid provision, because people have to be able to find out what they are entitled to do during an election campaign, and if your Honour cannot tell me, nobody can.

BRENNAN CJ: It is not a question of cannot, will not.

MR LANGER: Well, if you will not, you will not. I have no compulsory process I can enforce on you.

BRENNAN CJ: That is quite right. That is not the function of the Court, you see, and that is the difficulty of putting forward these arguments that you have. Unless you understand what our function is, it is very difficult, perhaps, for us to be on the same wavelength and the difficulty that we face is endeavouring to apprehend precisely the argument that you wish to advance so that we can evaluate it and determine whether the argument is supportable or not.

MR LANGER: In my view, it would have been entirely proper for Justice Deane to have looked at the Act, given the construction you just gave to it or, in fact, the Solicitor‑General could have stood up in court three years ago and said, “The Electoral Commissioner has made a bungle; we construe the Act this way”. Justice Deane would have said the same thing; there would have been no need for a question reserved about its validity and the election would have gone ahead and would have been fair and free. Mr Keating would not now be Prime Minister and Justice Gummow would not be sitting and your Honour may or may not be Chief Justice.

What has happened is that an absurd construction has been placed on this legislation; the Solicitor‑General demanded that there be a question reserved to the Full Court; the Full Court has shut its eyes to it until three years later and as a result, an unfree election was held. And what I would like to ask the Court to do in construing the Act ‑ which I think is not an unreasonable construction of it ‑ in construing it three years after an election was held on a different basis, is to make an order for an urgent hearing as to what the Court is going to do about my original writ. Because I did not come here out of curiosity about how the Court interprets this statute and if your Honours are deliberately shutting your eyes to it, then let it be known that it is deliberate.

But, there is another general election due ‑ if the last one was not valid, we should know about it before the next one. And I ask your Honours now, since the entire Full Court is assembled here, to decide whether or not the Court is going to hear my original writ. Obviously it will not be today, but if the Court puts it off any longer, then the result is that it is futile to invoke the jurisdiction of the High Court to seek an injunction against an officer of the Commonwealth to enforce the Constitution. The result is that if the government decides to construe legislation and hold an election on the basis of their construction of it, that is the way the election will be held; that is the way the government will result. The consequences of that are really quite serious because there is nothing so strange about section 329A that it cannot happen before the very next election, that any time a government wants to intimidate people during an election, they can put forward an absurd construction of a statute, hold the election on that basis and then expect that the High Court two years later will say, “Yes, that was an absurd construction ‑ next item of business”.

So the question is, are you here to enforce the Constitution or not? And I fully concede that that is not what you have to determine this morning or this afternoon. If your Honours are not going to determine it, your Honours are not doing your job. Are you willing to hear the argument on the other matter that I raised, that quite independent of the validity of the last general election, but quite separately, I am saying, that section 329A is invalid because section 240 is invalid because we do not have a system of single member electorates.

BRENNAN CJ: That is not the question that is reserved for our consideration.

MR LANGER: Shall I take you through the materials here? We got as far as the joint standing committee.

BRENNAN CJ: Why are you taking us through the materials?

MR LANGER: To show you what the construction that others have placed on it is.

BRENNAN CJ: You have given us the benefit of the construction you have placed on it, have you, as far as you can?

MR LANGER: I would like a moment to think, your Honour. As I said, I have not got my written submissions, so I am in a bit of a disorganised state. Perhaps there is other argument I put forward, but I think it is mainly going through the defendant’s submissions and it would probably be better to do that in reply. So, if you are happy with that, I will ‑ ‑ ‑

BRENNAN CJ: Mr Solicitor?

MR LANGER: Sorry, one question, could I have the opportunity to put in a supplementary written submission? You are aware of the problems that have resulted in me being somewhat disorganised and trying to your patience but you will get a more coherent account in writing if I can do it.

BRENNAN CJ: We will hear what the Solicitor‑General has to say about that. Yes, Mr Solicitor.

MR GRIFFITH: If the Court pleases, it is somewhat difficult to answer the submissions put because we had taken that they were based on principles arising from representative government and the plaintiff’s submissions seemed more based on these issues of construction.

DAWSON J: And section 7 and 24.

MR GRIFFITH: Yes, your Honour. The starting point to us is representative government and we say that is to elect representatives, so the established mechanism by which choice is to be made we say cannot be inimical to the principle of representative government. Section 329 has a recent and particular place in the scheme of the electoral process. It is the most recent of a number of provisions intended to protect the integrity of compulsory and, as it is in Australia, full preferential voting system.

DAWSON J: Section 329 or 329A?

MR GRIFFITH: 329A I intend, your Honour. The particular function, of course, of 329A is to prohibit persons from encouraging voters to vote other than in accordance with section 240 and we wish to make clear that we would put the construction which your Honour the Chief Justice put to Mr Langer a few minutes ago.

TOOHEY J: Mr Solicitor, can you tell us why the words “fill in” were used in section 329A? They certainly do not appear in section 240, and section 329 itself seems to adopt the language of 240 in so far as it speaks of “marking”.

MR GRIFFITH: Your Honour, the function of 329 is seen from its history, which we have summarised in our volume of materials, which does explain, we would suggest, the limited function of section 329A to support section 240, but to your Honour’s precise question, “Why ‘fill in’ rather than ‘mark’ was used”, it does seem to be a matter of conjecture, your Honour, but it does emphasise the position that section 329A is concerned with the aspect of filling in each of the boxes which one has in a full preferential system.

McHUGH J: It is not directed to encouraging somebody to not mark a ballot paper at all.

MR GRIFFITH: No, your Honour.

McHUGH J: If that is an offence, it is dealt with under 329.

MR GRIFFITH: Yes, that is what the legislative history makes clear; it is limited to the function of supporting section 240, establishing a full preferential system, and prevent that being undermined by relying on section 270, which is intended to cover inadvertent error, and not intended to establish a system of optional preferential voting in substitution for mandated, compulsory, full preferential system. So it does have that narrow function.

It also, we would admit, does not deal with the issue as to whether or not one could add a slogan such as “No dams” or “No bridges”, having completed the vote otherwise regularly in compliance with the requirements of paragraphs (a) and (b) of section 240.

BRENNAN CJ: It is relating simply to the numbers and the boxes?

MR GRIFFITH: That is all, your Honour.

BRENNAN CJ: Yes. We will adjourn until 2.15 pm.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.22 PM:

BRENNAN CJ: Mr Solicitor, before you commence, the members of the Court other than Justice Gummow have considered the challenge that has been made to the competency of Justice Gummow to sit on this matter. The unanimous view of those members of the Court is that on no view of the arguments that have been presented to us by Mr Langer this morning can the competency of Justice Gummow be in question. Accordingly, our view is that Justice Gummow is competent to sit and he will participate in the decision of this matter.

MR GRIFFITH: Your Honours, at the adjournment I was referring to section 240. That section deals with the issue of mandating the writing of numbers in sequence in the squares on the ballot paper. A provision such as section 240 was considered by this Court in Faderson v Bridger 126 CLR 271. That was dealing with the then provisions in relation to Senate elections. Your Honours will see that it is a Court of three Justices sitting. One can see on page 272 of the Chief Justice’s judgment that the issue was whether or not a person may be convicted for failing to vote “without a valid and sufficient reason”, the excuse being offered that the particular elector said:

because he had no preference, and that if he had been forced to state his preference he would have been telling a lie.

He proffered that view as an excuse for failing to vote.

The provisions are in analogous terms to section 240 so far as the obligation to record a vote. Section 123 is set down at about point 8 on the report and at page 273, his Honour the Chief Justice said:

However much the elector may say he has no personal preference for any candidate, that none of them will suit him, he is not asked that question nor required to express by his vote that opinion. He is asked to express a preference amongst those who are available for election, that is, to state which of them he prefers, if he must have one or more of them as Parliamentary representatives, as he must, and to mark down his vote in an order of preference of them.....
To face the voter with a list of names of persons, none of whom he may like or really want to represent him and ask him to indicate a preference amongst them does not present him with a task that he cannot perform.

His Honour then referred to Judd v McKeon which has already been referred to. At page 274, at about point 5, the Chief Justice said:

In my opinion the argument in this case really amounts to this: that this elector says he was under no duty to vote because in fact no candidate met with his approval; all of them met equally with his disapproval. That, to my mind, is what Isaacs J refers to as “an open challenge to the very essence of the enactment”.

So, your Honours, we would submit that the construction which was put by your Honour the Chief Justice to Mr Langer as to the plain meaning of section 240 is the correct one.

I mentioned in my opening before lunch that the mechanism of the electoral process has two arms: firstly, the mechanism of compulsory voting and, secondly, the mechanism of full preferential voting. Although one can pick it up particularly in the rather long unpublished publication by Major which is included in the materials for South Australia, it may be convenient for the Court if I could hand the Court a summary of the enactment of compulsory voting in the Commonwealth and in the States. I will not take the Court in detail to it.

BRENNAN CJ: What is the purpose of this, Mr Solicitor?

MR GRIFFITH: Your Honour, firstly, it is to show that the electoral process, as it has developed, is firstly to provide for compulsory voting and, secondly, to provide for full preferential voting and to make the point that section 329A is in support of implementing that voting system.

BRENNAN CJ: Yes, very well.

MR GRIFFITH: Perhaps the one interesting aspect of this summary is that there was no Tasmanian Hansard prior to 1979, it seems. May I take your Honours then to the summary of the legislative history of section 329A which appears under Tab A of the Commonwealth’s green materials. The starting point for the legislative framework which has its most recent addition, section 329A, is section 240. Your Honours will see in paragraph 3 of the summary under Tab A that it is noted that full preferential voting had been employed in elections to the House of Representatives since 1918 and in the Senate since 1934 and the footnotes 2 and 3 give the legislative authority for that.

Section 240 was subject to some difficulties and one can pick this up from the paragraphs 6 and 7 of the summary. The effect of section 240 could be that there could be a number of votes where there was unintended error by persons numbering in a way where they intended to have a full preferential vote but made a genuine mistake in filling out their papers and one can see in the extract of the standing committee report, which is extracted in paragraph 6, that there was a considerable number of votes that seem to fall in that category and the consequence of this was that ‑ ‑ ‑

DAWSON J: It was an exhausted vote, Mr Solicitor.

MR GRIFFITH: I am sorry, your Honour.

DAWSON J: It was an exhausted vote.

MR GRIFFITH: Your Honour, an exhausted vote is- perhaps I could come to it in order, your Honour, and go to section 270 and then explain it. Section 270 was enacted to come into operation on 21 February 1984 and that relaxed the requirements under the Act for casting of formal votes in the Senate and House of Representatives elections to ensure that those electors who make a general mistake in numbering the ballot paper such as missing a square or repeating a number are not disenfranchised. Your Honours can pick up from the footnote 9 to paragraph 8 of the summary the references to various reports considering this problem under tab K, tab C, tab D to tab E of these materials.

Section 270 by its terms provided that in effect there was a safety net where there was an attempt but because of an error a failure to comply with the requirements of section 240. In the case where the requirements of section 270 were complied with it was possible for the vote to continue to be counted as a valid vote. There are limitations in its operation, but basically the provision in the case of House of Representatives elections under section 270(2) would enable a vote to remain valid in a case where inadvertently there has been a completion of the ballot paper with the No 1 and that in other of the boxes there has been a repetition of the same number. So that this was the reference that Mr Langer, as we understood his argument to the Court, made to voting 1,2,2,2.

Now, section 270(2) does not authorise such voting as a valid vote because that would have the effect of creating an optional preferential system rather than a full preferential system, but what it does is to provide a safety net to cover cases of inadvertence to say where this occurs then to the extent that it is possible the vote will be counted as a preferential vote with a number of preferences until the error arises. Subsection (3) says:

In considering, for the purposes of subsection (1) or (2), whether numbers are in a sequence of consecutive numbers, any number that is repeated shall be disregarded.

So that if one, assuming there are four candidates, introduced 1 in one box and 2,2,2 in the others, that would have the effect of, as it were, a first past the post vote with no preferential effect at all. If one had 1,2,3,3 then the second preference would take effect, but the remaining preferences would not take effect. That section was regarded as an appropriate section to meet a particular perceived difficulty, because of the case that unintended error were to cause votes intended to be formal to become informal.

One sees from the extract of the standing committee report in paragraph 6 of our summary, paragraphs 3.29, 3.40, which is set out in full in tab G of our materials, that this position was regarded as something where there should be a provision to operate to overcome the difficulty. Your Honours, though section 270 came into operation in 1984, it had a particular beneficial effect. In the next election, one picks this up from tab F of our materials, particularly paragraph 7.28, 7.29 and 7.30 under tab F, that some 70,311 ballot papers were saved by section 270, and one finds that at page 125, numbering at the foot of the page, of the report of the Joint Select Committee on Electoral Reform, December 1986, at paragraph 7.28, 7.29.

The point is made that the safety net provisions saved, in effect, the entire number of ballot papers equal to an electorate, a division, 70,000 voters. So that that provision was regarded as having a beneficial effect. The same report summarises in paragraphs 7.24 to 7.27 on the previous page the position as to blank ballot papers and what might be referred to as defaced papers. Paragraph 7.26 refers to “writing, scribble, and other unacceptable markings”. One does not know the detail of these markings because, of course, they are subject to the secrecy provisions of the Act.

The 1990 federal election report, which appears under tab G of these materials, notes that it would be difficult to amend section 70 to retain the safety net provision which was regarded as beneficial and yet avoid a de facto optional voting system, and as a result of this report, section 329A was enacted to give effect of the Joint Standing Committee on Electoral Matters report in 1990, and one sees that in the extract in paragraph 5 of our summary, which sets out the conclusion of that report on the top of page 2, which recommenced that there should be amended to the Commonwealth Electoral Act -

to include a general prohibition on the distribution of any material which discourages electors from numbering their ballot paper consecutively and fully.

And as paragraph 6 of our submissions referred to the fact, this -

was made in the light of submissions of the Australian Electoral Commission -

which appear as tab H in our material -

and observations of the Standing Committee Report concerning the impact upon voting at the 1990 election -

whereas it was clear that there was an increase in the number of cases, in effect, falling under this safety net on the basis that this provision was being used, not as a mere safety net, but as a mechanism to undermine the principle of full preferential voting.

So that, your Honours, this legislative history is put before the Court to make it clear what is the intended and limited ambit of section 329A. It is to support the provisions of the Act which establish the full preferential voting system, particularly through the mechanism of section 240, and also if I could refer your Honours to the section 274(2)(b). In paragraph 2 of our submissions we refer in error to subparagraph (d), but the reference should be to section 274(2)(b) and also to subsection (7)(d) and subsection (8) of section 274.

TOOHEY J: Mr Solicitor, if a ballot paper contained directions in accordance with section 240, what would section 329A add to section 329(3)? I appreciate there is some shift between inducing an elector and encouraging persons but, putting that to one side, what is the difference between the two?

MR GRIFFITH: Your Honour, the particular function of 329A seems to cover the situation whereby there is a direct use of publication by a person for the purpose of inducing a person deliberately to take advantage of the safety net of section 270. That is the narrow focus of section 329A(1). It may be that on a broad reading of section 329(3) one could construct that such publication could also constitute conduct which is proscribed by subsection (3). But the view was taken, as one sees from these reports and the inquiries from the previous election to 1990, your Honour, that it was necessary to have a particular provision to underpin the fact that section 270 was intended to operate as a safety net to cover inadvertent error and not to undermine the basic principle of full preferential voting.

But we emphasise this point to indicate that section 329A is not a plenary prohibition, as it were, under the Act. It says nothing on the issue of whether a person encourages others to lodge in the ballot box a blank paper. It does not deal with that. It does not deal with whether or not a person writes in a slogan such as “No dams”, “No bridges” on a ballot paper, whether or not that person also fills the boxes as is required by section 240 or whether a person does not fill the boxes and in effect votes invalidly.

TOOHEY J: Why would it not deal with the blank paper?

MR GRIFFITH: Your Honour, because it is dealing with the issue of filling in a ballot paper. We would say perhaps section 329 has a slightly wider operation than dealing with encouraging people to take advantage deliberately of the safety net of section 270 because it seems that it would also cover a case of a person saying “You should just fill in 1 on your ballot paper and otherwise leave it - have complete 1s on the ballot paper”. That would also seem to be covered. But we do not submit that it does have the effect of covering the case where the issue publicised is to encourage people to leave the boxes blank.

TOOHEY J: Yes, thank you.

MR GRIFFITH: So, of course, the fundamental obligation to vote is contained in section 245(1) and there is a sanction under section 245(15) to the extent that persons who fail to attend at the polling booth and go through the motions of voting and do not give a valid and sufficient reason of their failure to do so may be subject, of course, to proceedings, but a person does not commit an offence if, having apparently attended to vote, and taking a paper into the polling booth that person does not make an effective or formal vote or makes a vote that does not comply with section 240.

Your Honour the Chief Justice yesterday, in argument, made the obvious point, as we understood your Honour’s statement, that it would not be possible to do so consistently with the obligations of secrecy of the voting booth. So the sanctity of the polling booth, in effect, is not intruded into by the expression of the obligation of electors to vote under the Act and on the secrecy provisions we refer to section 233, section 271 and section 323.

Section 329A then, is a section, as one sees from the summary supported by the supporting documents under our tab numbers in our material, as being limited to a particular purpose to support the operation of the full preferential voting system as prescribed by section 240, consistently with the admission of the continued operation of the 1984 amendments which introduce section 270 as a safety net, but to ensure that by the use of publication of the safety net provisions, the operation of the full preferential voting system was not, in fact, undermined by persons taking advantage deliberately of its system which is intended to cover unintended error.

In our submission, when one sees section 329A in that context, and in the context of section 240, not only must be accepted as valid for the purpose of these proceedings, we would submit it undoubtedly is valid, and we refer to the decision of the High Court which would seem to be consistently with that view.

One can see that section 329A complements and enhances compulsory voting. So, whatever philosophical arguments might be put in favour or against the concept of compulsory voting and full preferential voting, it is our submission that, plainly, such a measure falls within the aspects of doctrines of responsible government which would be carried into effect by the exercise of the legislative power. By imposing an obligation to vote on persons qualified to do so, members of the two Houses elected could be better said to be truly representative of the people. Your Honour, may I refer you to the remarks of Justice Deane in Theophanous 182 CLR particularly at pages 173 and 174 where at point 9 on 173, Justice Deane said:

Since 1901, a variety of important developments have combined to transform the nature and extent of political communication and discussion in this country and to do much to translate the Constitution’s theoretical doctrine of representative government with its thesis of popular sovereignty into practical reality. The more important of those developments include: the introduction of both universal adult franchise and compulsory voting ‑

and then his Honour goes on to refer to other factors. In Australia, full preferential voting is a further refinement of the principles by which the doctrines of representative government implied in the Constitution have been translated into what we would put the political and practical reality of the Australian electoral process.

Your Honours, in our submissions, paragraphs 5 and 6, we refer to the legislative power underpinning these provisions, in particular, placitum (xxxvi) of section 51 and also section 31. And, of course, the Court has accepted that, subject to the Constitution, the Commonwealth has power to prescribe the means by which the people do directly choose members of the House of Representatives. I refer the Court to Australian Capital Television v The Commonwealth 177 CLR, particularly at pages 185, 188 and 220 and also Attorney-General (Cth); Ex Rel McKinlay v The Commonwealth (1975) 135 CLR at pages 57 and 58. Your Honour Justice Dawson in the Australian Capital Television Case at page 185 observed:

But much is left to the Parliament concerning the details of the electoral system to be employed in achieving representative democracy.

And, of course, his Honour the Chief Justice upheld the validity of the voting ticket system in the Senate in McKenzie v The Commonwealth (1985) 59 ALJR 190, at page 191. The Court has already been taken to Judd v McKeon where the High Court upheld the validity of compulsory voting.

If I may take the Court briefly to two parts of the judgments in Judd v McKeon 38 CLR. The report commences at page 380, but at page 383, the Chief Justice and Justices Gavan Duffy and Starke referred to - and this is dealing with the question of making laws, prescribing methods of choosing Senators. At about point 5 they said:

This power, subject only to the condition mentioned, is plenary and unrestricted; and the only reason advanced for denying to Parliament the right to prescribe that every qualified elector shall record his vote was founded on the use of the word “choosing”. It was said that the choosing of a candidate implied a desire on the part of the elector that that candidate should be elected, and that consequently the power of Parliament was limited to prescribing the method by which electors desiring that a candidate should be elected should signify that desire. We do not think the meaning of the expression “choosing Senators” in sec 9 of the Constitution can be so restricted. In common parlance “to choose” means no more than to make a selection between different things or alternatives submitted, to take by preference out of all that are available.
Your Honours were taken briefly by the Solicitor-General of South Australia to the judgment of Justice Isaacs at page 385, but if I could take your Honours to that page again and refer to a part not referred to by my learned friend, where, at about point 4, Justice Isaacs said:

A method of choosing which involves compulsory voting, so long as it preserves freedom of choice of possible candidates, does not offend against the freedom of elections, as established and recognized by the Statute of Westminster.
The compulsory performance of a public duty is entirely consistent with freedom of action in the course of performing it.

And we note that Justice Rich went a little bit further at page 390, and said:

In my opinion, compulsory voting is valid. The vote is not merely a right but a duty. Every elector must discharge that duty.

Of course, it is not a constitutional duty to the extent that there is no capacity of the Parliament to provide for non-compulsory voting, but we submit it is within the ambit of the legislative choice in exercising the constitutional power to provide for compulsory voting, and that was the view of the Court in Judd v McKeon. So the Court really made a play in that Parliament has the power to define the mechanisms for the direct choice of Members of the House of Representatives.

The concept of choice, of course, embraced by the Constitution, we would submit, implies that the electorate may make a positive choice through the act of voting and that there should not be a negative concept that representative government is achieved through persons abstaining from voting. Section 240 is the provision enabling a voter to make full expression of preferences amongst those who are available for election.

Given that the legislature does have the power to prescribe the choices to be made, our submission is it must be that there is power to make laws to ensure the better achievement of that mechanism of full preferential voting. Given the secrecy of the ballot box, we would submit that a provision along the lines of section 349A is, when one contemplates a position, perhaps almost the only reasonable way to make provision to support that concept of full preferential voting.

Whatever philosophical arguments one may have in favour or against the principle of compulsory voting, plainly it must be characterised as a measure whereby the doctrines of representative government may be carried into effect. The Court has accepted that it is within legislative power to make the laws for regulating the conduct of persons with respect to elections. May I refer the Court to the references in paragraph 5 to our submissions and add also a reference to The Licensing Court of Brisbane; Ex parte Daniell (1920) 28 CLR 23, in particular at page 31 and 32.

Your Honours, turning to the issue of freedom of communication, given the nature of the submissions made by the plaintiff to the Court, the Commonwealth would propose to adopt, in effect, the two parts of its submissions which appear, firstly, under the heading “Scope of the Implied Freedom of Political Communication”, paragraph 7 of its submissions, and on the next page “Permissible Restriction of the Implied Freedom of Political Communication”, paragraph 8, over the next two pages, but our basic submission is that just as a stream cannot rise any higher than its source, we say it is implicit in doctrines derived from representative government that they cannot be invoked to strike down the mechanisms of representative government itself in the electoral process, which is the reference point to which the implied freedoms of representative government is derived.

Your Honour, on that basis we would submit that conceptually a section such as section 329 could not be characterised as infringing the scope of the implied freedom of political communication however defined. The section is directed merely to the publication of adverse material which is intended to prevent actions in derogation of the proper operation of the system which is provided. Your Honours, as an alternative on the basis that there is some impinging on the political freedom which might be accepted, in our submission, that for the reasons we state in paragraph 8 that however one does approach the question of restriction on implied freedom of communication the limitation such as this cannot impinge upon it. It is plainly intended to pursue a legitimate purpose within power.

We refer the Court perhaps as a matter of analogy although not direct operation to a recent decision of the Ontario Court, Thomson Newspapers v The Attorney‑General of Canada, which was a decision of 15 May 1995. If I could hand to the Court copies of that decision made under the Canadian charter.

There, of course, the issue of freedom was one which was foreclosed by the terms of the charter itself, and the matter of inquiry before the court was not whether there was a violation of the right of freedom of expression, but to whether or not it was a justified one, and one would see that there Justice Somers referred at length to material which was before him in justification of a law which proscribed the publication of information as to polls within a three‑day period of an election, but if I could take the Court to page 28 of his Honour’s judgment, his Honour says:

The most critical test under section 1 is probably the minimal impairment test. The democratic nature of our political institutions means that they will seldom legislate on matters that are not of some import and will seldom act in an irrational manner. However, it is possible that Parliament may, in the pursuit of a legitimate objective by legitimate means, simply enact unacceptably broad restrictions on Charter rights.

And his Honour took the view that this restriction on publication was one which did fall within the provisions of acceptance.

BRENNAN CJ: Page 28, did you say, Mr Solicitor.

MR GRIFFITH: I did, your Honour.

GUMMOW J: Pagination is difficult with this lexis.

BRENNAN CJ: You may have numbers on yours, but these are ‑ ‑ ‑

MR GRIFFITH: Yes. Page 28 appears at the bottom; it is perhaps page 27, your Honour, but I was taking you to the page reference at the bottom, I am sorry.

BRENNAN CJ: Yes, quite; it is page 27 on lexis.

MR GRIFFITH: Yes, it is only possible to obtain this report on lexis at the moment; if a better report becomes available we will furnish it to the Court, but your Honours, this is only of analogous use, given the provisions of the charter, but we refer to it, your Honour, as indicating an approach, even within the context of the charter requirements of accepting that quite severe limitations on the political process are compatible with any even charter based freedom of communication beyond any freedom of political communication. So that ‑ ‑ ‑

BRENNAN CJ: I do not know whether there is anything very critical in this but, having recently been there, it seemed that the ban on tobacco advertising is perhaps the latest word from the Supreme Court. Does that say anything on it?

MR GRIFFITH: I in fact have a copy of that judgment, your Honour, but I have been so busy preparing and it is so thick, I have not read it. But perhaps if I can indicate that I will read it and let your Honours and Mr Langer have any copy if that does seem to be useful. I think probably that judgment may have something useful on the issue of having regard to the charter rights of proscribing conduct in relation to something which itself is not made unlawful, which was a matter raised by Justice Toohey in Muldowney’s Case yesterday. But in Muldowney we made our point in response on that in a provision such as this.

We would submit that there is inherently no difficulty in proscribing conduct to preserve the integrity of the electoral process, given that it must be accepted that in a practical way there cannot be an enforceable provision effectively which can require a person to vote validly. In the case of the South Australian law, that was expressed as being a case that a person was not required to complete the ballot paper. In the case of the Commonwealth law, the same result is implicit, that the secrecy of the ballot box prevents that aspect being a matter which could be proscribed as unlawful conduct, in our submission.

Your Honours, we are somewhat uncertain, having heard the submission of Mr Langer, whether indeed there is now maintained an attack based on the issue of the implied freedom of representative government. We perceive that his attack is basically one based on construction and based, we presume - implication from section 24 of the Constitution. On that, we submit the issues of construction are clear. Those points having been made, we submit, your Honours, there is basically no basis for then erecting anything out of section 24 which could strike down the narrow operation of section 329A. In as much as there may be some residual implicit submission based on the broader doctrine which we understood were the issues to be pursued, apart from relying specifically on our written submissions and what we have already said, those are the submissions of the Commonwealth.

BRENNAN CJ: Mr Solicitor, Mr Langer sought leave to put in a supplementary written submission. Do you have anything to say about that?

MR GRIFFITH: Your Honour, it is a question of what the Court wishes to invite onto itself. We would leave that to the discretion of the Court, but we would suggest that there be a restriction as to relevance. It is difficult when a plaintiff appears in person as to what the dictates of fairness require. If he does put on submissions, your Honour, we suggest that they be on terms to restrict the ambit. We would ask to be given a short opportunity to respond which we would only take advantage of if we thought it was appropriate. But one mechanism may be - we are not quite sure what the target of these submissions are. As my learned friend made the point, he has had over two years to determine what is his argument here.

BRENNAN CJ: I think it is by reason of recent events that the indulgence is sought.

MR GRIFFITH: Your Honour, we are quite happy for what is fair to Mr Langer to be granted but given, your Honour, that we were unaware that he lodged these four volumes and an index with the Court at all until argument this morning, it might be useful to have a page limit. Your Honour, it is really a question of the Court protecting itself.

BRENNAN CJ: Yes, Mr Solicitor, Mr Hanks?

MR HANKS: If the Court pleases, the Attorney‑General for the State of Victoria adopts the submissions made by the Solicitor‑General for the Commonwealth in relation to the validity of section 329A of the Electoral Act.

BRENNAN CJ: Mr Langer, do you wish to reply to the Solicitor‑General for the Commonwealth at this stage?

MR LANGER: Yes, and it will be very narrowly confined to the optional preferential voting questions that he raised and I thank him for conceding the further written submission and I understand that it had better be kept relevant and the purpose would be to cut down those four volumes to draw your attention very precisely to the items that are relevant. I had to spend the last couple of weeks just getting them together and that is why you did not have a concise account.

BRENNAN CJ: Mr Langer, the proposal that the Court would be prepared to accept is this, that you should, within limited time, reduce any further supplementary submissions you wish, but within the limits of five typewritten pages.

MR LANGER: That is heavy. Any chance of slightly more than five?

BRENNAN CJ: No.

MR LANGER: Okay, it will be done.

BRENNAN CJ: How long do you wish to have to produce that?

MR LANGER: Whatever your convenience is. It would allow me to take a small break if you could make it as long as possible. I have had a very heavy time.

BRENNAN CJ: You will have 21 days in which to do that and before you continue with your reply, Mr Solicitor, within what time would you wish to have an opportunity to reply?

MR GRIFFITH: Seven days, your Honour.

BRENNAN CJ: Seven days for the reply. Yes, Mr Langer.

MR LANGER: There are several major issues in what the Solicitor‑General said. Firstly, section 329A refers only to House of Representatives elections and it is almost completely inexplicable why it would refer only to House of Representatives elections if it is indeed about optional preferential voting. The statistics that were quoted from the submission about saving 70,000 ballot papers through exhausted votes were, in fact, Senate ballot papers, that people do make mistakes on the very long Senate ballot papers and you can save a substantial number of exhausted votes by not requiring consecutive numbers and by allowing a few blanks.

If one was to single out one of the two Houses and worry about exhausting votes, then it would be the Senate that would have been singled out. If one was enacting a provision that was aimed at stopping people exploiting the provisions of the Electoral Act to vote in accordance with their actual preferences, one would go for both Houses. There is something really strange about it being confined to the House of Representatives, because the effect of that would be that somebody who is advocating a 1,2,2,2 vote could simply do it by saying that they are advocating it for the Senate and allow people to draw their own conclusions as what they should do for the House.

It really is quite an inexplicable piece of legislation in those terms. I would ask you to cast your minds back to my alternative interpretation of the words “fill in the ballot paper” is referring to the directions on the ballot paper being misleading.

I think the account of the legislative process was accurate, that Parliament did think at the time it was enacting section 270 that it was directed at people misusing the savings provisions in section 270 and I think the phrase that was used by the Minister was it was to stop people during the election campaign “frustrating the will of Parliament”. I find the concept peculiar. What I was being pressured on earlier was is this not just saying vote in accordance with the way the Act says you should vote and if the Act says that a vote that is valid according to section 270 will be counted, then an election campaign is about persuading people to vote in the ways that will be counted in the Act.

If the Parliament had intended to get across the idea that this is a special savings provision and people are not to vote that way and therefore you must not encourage it, it would use very clear words. For example, section 168 itself, I think we will be going to ‑ ‑ ‑

McHUGH J: It is 268.

MR LANGER: Section 268, thank you. The way the provision operates is that only if a ballot paper has become informal under section 268(1)(c), do the provisions of section 270 come into effect. It saves a ballot paper that was informal under section 268. Now, section 270(1) then is in regard to the Senate and subsection (2) is in regard to the House. Subsection (2)(c) says that section 270 only applies to ballot papers that:

but for this subsection, would be informal by virtue of paragraph 268(1)(c).

So, a ballot paper will never reach section 270 and will never be affected by its provisions unless it would have been informal previously. I do not see how one can read into the Act that, from 1919 until 1983 a 1,2,2,2 vote, a selective preferential vote, was an informal vote. There has certainly been no judicial decision on that. There are no explicit words in the Act that say that you must do it. If Parliament had intended that to be the effect, then I would have thought it would be very explicit because, until 1919, we had a first past the post system. And, in fact, when it was first introduced in Victoria in 1915, the previous system was one that you strike out the names of the candidates that you oppose and the wording of the compulsory preferential system was instead of striking out the names, write the No 1 for the candidate of your first choice and so on.

That form of words was deliberately chosen and it was chosen in the draft Commonwealth Bill, the original intention from the constitutional convention was to have the Hare Clark system for the Senate and then gradually introduce it in the multi-member electorates for the House, but the draft bill in 1902 used those form of words in conjunction with a system where you could have bracketing ofvotes, you could for example have a vote that went 1,1,2,2,3,3,3 and there are very detailed provisions in the schedule to the Bill explaining how parcels of bracketed votes are to be counted in the Senate system. That Bill was never enacted, but it is the same form of words that were used in that voting system are the ones that have been applied to the compulsory preferential system. And it would be so easy to draft a provision that simply says, you shall write consecutive unrepeated numbers. It would not be sufficient to use the word consecutive numbers, but they do not even use the word consecutive. The numbers 1,2,2,2 are consecutive numbers. What section 270 is directed at is mistakes such as 1,2,3,3,5. That is a case where a voter has obviously made a mistake; that they have written two 3’s instead of 1,2,3,4,5, but there is no way to tell which of the 3’s was meant to be a 4.

And so, that vote would be invalid under section 268(1)(c), because it is not an order of preference for all the remaining candidates, yet there is a gap there and you cannot tell what the order of preference was meant to be. Consequently, it comes under section 270, because of paragraph (c); it does have a number 1 in a square opposite the name of a candidate and it does have other numbers in all the other squares. And then it explains in detail how to count that vote. It says in paragraph (d) that -

the ballot-paper shall not be informal -

Then in paragraph (e) -

the number 1 shall be taken to express the voter’s first preference;

And (f) -

where numbers in squares opposite to the names of candidates are in a sequence of consecutive numbers commencing with the number 1 - the voter shall be taken to have expressed a preference by the other number, or to have expressed preferences by the other numbers, in that sequence;

And (g) -

the voter shall not be taken to have expressed any other preference.

Subsection (3) is very important:

In considering, for the purposes of subsection (1) or (2) -

that is for the purposes of the Senate provision or the House provision that we are discussing -

whether numbers are in a sequence of consecutive numbers, any number that is repeated shall be disregarded.

So when you follow that through, the consequence is that when you get up to 1,2,3,3,5 vote, when you get up to the repeated 3, the sequence of consecutive numbers has been broken. The No 1 is taken as the first preference. The sequence of consecutive Nos 1 and 2 are then taken as the first and second preference. The remaining votes 3,3,5 are ignored. That is clear and there is no ambiguity in the drafting, that is what it means. There is nothing there to suggest that ‑ ‑ ‑

McHUGH J: That is not the view the Electoral Commission takes over those?

MR LANGER: No. It is the same Solicitor-General who was saying that the Electoral Commission takes the view that it is aimed at informal voting and it prohibits people going around urging a blank ballot paper. That was what the Solicitor-General put just before the last general election and that was what the question reserved resulted from. Nothing was said about optional preferential voting at the hearing. That same Solicitor-General now says, more accurately I believe, that the Parliament did intend it to apply to optional preferential voting.

BRENNAN CJ: Giving it the construction that you have and linking it to 268(1)(c) and 240, is it right to say that 240 requires Nos, say, 1 to 5? Section 268 says, if you have not got Nos 1 to 5, it is invalid, and 272 says, if you have got 1,2,3,3,5, you then count 1 and 2.

MR LANGER: No. That is, I believe, the impression that the Parliament was under when it enacted it, but my understanding of section 240 permits a vote that goes 1,2,2,2,2, but that would not be an informal vote prior to the enactment of section 270. In support of that, I quote from 1973 Act, which is the previous major rewrite and is more or less in identical terms to the way it has been right back from 1919. This is the method of counting the votes. It is a very similar section to 240, except it refers explicitly to the ballot paper. Section 133, which has now become 268, says that a ballot paper will be informal if, paragraph (c):

in a House of Representatives election, it has no vote indicated on it, or it does not indicate the voter’s first preference for 1 candidate -

and his contingent votes for all the remaining candidates. The only change has been between the words “contingent votes” and the words “order of preference”, and I think that change was actually made after section 270. It is just part of the changes in style in the Act and of most significance.

BRENNAN CJ: What is the provision then of the corresponding section to section 240?

MR LANGER: The previous section 240 also, before the enactment of 270, does not refer to the directions but it does refer to the ballot paper. I would have to find a copy, but it has no different effect. The only difference is they do not divide into two paragraphs.

BRENNAN CJ: Do they refer to order of the person’s preference?

MR LANGER: Yes, or some similar words. Either order of the person’s preference or a person’s contingent votes, but to me it is the same concept. You put a number 1 and then you put your contingent votes for the other candidates and if you have not got a contingent vote for the other candidates you have still got to put a number in each square. So I would read it the same way, that it is a 1‑2‑2‑2 vote under both, but what proves the interpretation is the provisions for counting. Up until 270 there were no exhausted votes. Until the 1983 amendments there was no such thing as an exhausted vote in compulsory preferential system, but the provisions for the scrutiny which were then section 135, which are now section 274 - yes, the corresponding provision then was 135. There is a lot of stuff about handling the parcels and assistant returning officers, but the guts of the provision are:

proceed with the scrutiny and counting of the votes as follows:
(i) the candidate who has received the fewest first preference votes shall be excluded, and each ballot‑paper counted to the candidate shall be counted to the candidate next in the order of the voter’s preference;
(ii) if no candidate then has an absolute majority of votes the process of excluding the candidate who has the fewest votes and counting each of the ballot‑papers to the unexcluded candidate next in the order of the voter’s preference shall be repeated until one candidate has received an absolute majority of votes;
(iii) the candidate who has received an absolute majority of votes shall be elected.

Now, the reference to an absolute majority of votes would be completely redundant if 1‑2‑2‑2 votes were not formal. You would draft that provision simply saying exclude the candidate who has the least first preference votes; repeat until there is only one candidate left; elect that candidate. Instead the Act has provisions for a supplementary election if no candidate is declared elected. There is absolutely no point in this reference to an absolute majority before a candidate is required to be elected unless there are circumstances in which none of the candidates has an absolute majority and that is pretty understandable.

If a majority of voters have clearly indicated by writing numbers on their ballot paper that they reject a candidate, you can hardly say that candidate was directly chosen by the people. Under an optional preferential system you could pretend that they have merely ignored that candidate and you could say that candidate has received the largest number of votes among all the different candidates that received votes and you could say that candidate was directly chosen.

Once people had been compelled to write down their preferences and they had marked a candidate last, there is no way you could have a valid enactment that says he is being voted against by a majority so he is elected. That is the reason for providing this stuff about absolute majority. The background to it is Professor Nanson’s paper, on methods of election which was written for the Royal Society of Victoria in 1882, was published in the command paper. There is an excerpt from it in the materials here that was collected for the Royal Commission on Electoral Systems in Britain for 1910. They asked for reports from all the colonies and from foreign countries on methods of election and proportional representation and so on and he was the Australian expert on preferential voting.

His opinion of the contingent voter system, the Ware system as it was called, was that it would work efficiently, that it is easier to count the votes but that it would result in a candidate who had the support of the majority not being elected. What was wrong with the British system where you only count the first preference votes is that a candidate who is the least popular could, in fact, be elected; that just because he got more first preference votes, even though a large majority opposed him, he could still be elected and this was the reason for preferential voting in Australia, that there was a seat where there was a split between the National Party candidate and a Farmers’ Federation candidate. It was a very strong anti‑Labor seat, but as a result of the two candidates running from the anti‑Labor side, the Labor candidate won. So, the candidate who was the least popular was elected under first past the post.

What Professor Nanson pointed out was that the type of preferential system that ended up being adopted did prevent that, but it still permitted the second least popular candidate to be elected. It does not ensure that the most popular candidate is selected and the counter to that is that if you are the most popular candidate and you ask your supporters to not give preferences to other candidates, then none of the other candidates can get an absolute majority against you. So, when Professor Nanson was asked to draft the compulsory preferential system he deliberately built in this requirement for an absolute majority and it has been there since 1919.

It is still there. The provisions of section 270 distinguish between what happens to an exhausted vote, which is that it is deducted from the absolute majority and the preferences, so that once one of these accidental votes, 1,2,3,3,5, has occurred, the detailed provisions spell out how you count it. We are in section 274(8) which says:

A ballot-paper shall be set aside as exhausted where on a count it is found that the ballot-paper expresses no preference for any unexcluded candidate.

The provision in section 270 is what defines a ballot paper that expresses no preference. Section 270(2)(g) says:

the voter shall not be taken to have expressed any other preference.

So, where you have an exhausted vote and they have got up to the repetition of numbers or the gap in numbers, those numbers from then on do not express a preference. Consequently, they fall under section 274(8) and the ballot paper is set aside as exhausted. As a result of that, under subsection (11):

For the purposes of subsection (10), if at any stage of a count, ballot‑papers have been set aside under subsection (8), the whole number of ballot‑papers, at that stage, shall be taken to be reduced by the number of those ballot‑papers set aside.

So these exhausted votes are no longer part of the number that counts towards - you have to get an absolute majority. But where a ballot paper was a formal vote right from the start, it does not express no preference for any unexcluded candidate; it gives them a last preference. It cannot be transferred to any of those candidates because you could hardly elect somebody on last preferences as somebody has marked their ballot paper to say, “I reject that candidate”, and so you count it as a vote for them. So the consequence is that those ballot papers just stay there; they cannot be transferred and they cannot be exhausted. In order to win, you do in fact in Australia have to get an absolute majority.

So, if Cleary, for example, had been defeated as a result of the strange paradoxes in the voting system, the reply which the Electoral Commissioner would have been able to make, is, “Yes, but that is the decision of the people who voted for you. They decided to give second and third preferences to other candidates, thus consenting to them being elected if you were excluded. If your supporters had wanted there to be a supplementary election, they would have voted 1,2,2,2 and, therefore, it is all perfectly above board”.

This whole scheme of the Act that defines an absolute majority could not be there for any other purpose. It would be a nonsense provision to talk about an absolute majority prior to the enactment of section 270 and yet it has talked about an absolute majority right from the start of compulsory preferential voting. And again, there is this confusion from the word “compulsory”. There are so many people around who object to compulsion of any kind and who are moaning about having to enrol and vote and having to write a number in every square and then, you get the sort of waffly conception about implied freedoms and so on, that people actually do believe that when government tells them that compulsory voting is to force you to vote for candidates who you do not choose, they will actually believe that is part of the law of Australia. That, to me, reflects public attitudes towards government officials; it does not reflect the law of Australia.

I do not believe that the Parliament of Australia, either in 1919 or in 1983 or in 1992 or whenever the current section was enacted, had the intention of compelling people to vote for candidates they do not choose and that is essentially what the Solicitor‑General is arguing now. He is saying that the system of compulsory preferential voting is not designed to ensure that people fully exercise their preferences; he is saying that it is designed to ensure that people vote for candidates who they would rather not vote for and that anyone who exploits some provision of the Act to vote only for the candidates they choose is getting away with something, that only people who do it accidentally are allowed to vote that way. But, to go around and deliberately choose only the candidates you support, that is somehow subverting compulsory preferential voting.

My response to that is that that is subverting the whole concept of voting, that for the Solicitor-General of the Commonwealth and the Electoral Commissioner of the Commonwealth to claim that elections in Australia are not based on a free choice of the electors as to who they support but are based on the compulsion that “We will not count your vote unless you also vote for other candidates”, is really something quite absurd. Certainly nowhere else in the world has such a system. The Solicitor‑General now seems to be agreeing with me on my proposition two years ago that it would be manifestly absurd to imagine that this was aimed at informal voting. He says, no, you cannot construe it that way, after the Electoral Commissioner had forced Senate candidates to withdraw their candidacy under threats of injunction and after the Electoral Commission had boasted to Parliament that they succeeded in stopping people advocating this - - -

BRENNAN CJ: You are getting away from the constitutional validity, Mr Langer.

MR LANGER: The Solicitor-General agrees that it cannot be construed that other way, but if there is one proposition more absurd than the idea that Parliament compels people to vote for one candidate who they do not choose, it is the idea that Parliament compels people to vote for all the candidates. I mean, where on earth would one have an electoral system where a voter is not permitted to vote for the candidate of their choice unless they vote for every candidate or every candidate but one? There is a huge difference between writing a number in every square, being compelled - there is a huge difference between compulsory preferential voting, in the sense of being compelled to writ a number in every square, and coercive voting, in the sense of being compelled to vote for people you do not vote for.

The previous first past the post system in many States was based on striking out the name of the candidates you do not choose; that is harder than writing a cross on the name you choose, but you are not being asked to vote for them, you are simply indicating what your vote is. There is nothing to my mind unreasonable, provided you do not have several hundred candidates on the ballot paper, about interpreting legislation as saying that you must explicitly indicate your preference with respect to each candidate, but it would be totally unreasonable to say, “We will not count your vote for the person that you choose as your representative in Parliament unless you vote for other candidates who you do not choose. You must indicate your choice, you must write a number, but there cannot be an obligation to vote for people who you do not choose.

This is pretty fundamental stuff and it does go directly to constitutional validity because if you do construe section 329A as prohibiting, encouraging people to directly choose their representatives in Parliament, which is what a 1, 2, 2 vote is, then you are construing it as a direct attack on that section of the Constitution. I am not talking about an implied vague sort of freedom. If voters cannot directly choose their representatives in Parliament under the Electoral Act then the Electoral Act is invalid because the only power to enact electoral laws in Australia is derived from the necessity of the voters directly choosing their representatives in Parliament.

If this was a trade practices case and somebody was saying you cannot buy this unless you buy that, it would be bundling and the concept that you are not allowed to vote for somebody unless you vote for somebody else is, essentially, nonsense. But, it is very important nonsense in Australia. Like the Greens at the moment, there is quite a major fight over Green preferences. I have included in my materials a sample of an NUS postcard where the National Union of Students is attacking Keating and the ALP on the question of fees and the whole thrust of it is, do not trust the Labor Party; do not vote for them. But, they cannot credibly say “vote for the Liberal Party” when the Liberal Party also supports fees. And they cannot, credibly, say that they are going to switch their preferences to the Liberal Party. There is simply no way that they could put pressure on the Labor Party without being able to urge people to either not vote at all ‑ vote informal ‑ or vote for independents without giving their preferences.

The Greens have seemed to have finally moved to a position where they are willing to ‑ ‑ ‑

BRENNAN CJ: We are not really concerned about the forthcoming election campaign, Mr Langer.

MR LANGER: Right. I am not trying to put it that way. What I am putting is that it is quite fundamental to the electoral process the difference between construing the Electoral Act so that you are obliged to give preferences to a party you do not support in order to vote for a candidate you do support and construing the Electoral Act as saying, “You vote for who you want to and you give preferences for who you want to”. This has fundamental implications for how elections are conducted in Australia.

If elections in Australia are conducted on the basis the Solicitor‑General claims, what will happen is that at the next general election, there will be people urging that people directly choose their candidates, that they vote for them, and there will be Commonwealth officials running around prosecuting them under the Act, taking out injunctions. I put in a volume of materials from South Australia that shows exactly what happens in that circumstance.

If the South Australian legislation is valid on the informal voting, then judges would be obliged to issue injunctions ordering people not to put out their pamphlets in elections urging people to vote in accordance with their preferences, and electors would be obliged, because we are the ultimate guardians of the Constitution, to ignore those orders, because the reason that people respect orders of courts is on the assumption that the laws they are administering are laws that had been enacted by Parliaments freely chosen by the electors. Only a few days ago, I saw an item about Justice Cummins in the Supreme Court, the BHP Case, with contempt.

BRENNAN CJ: We do not really need to concern ourselves with ‑ ‑ ‑

MR LANGER: No, I am just referring to the fact that courts act in self‑protection, that you will not ‑ ‑ ‑

BRENNAN CJ: Courts act in accordance with the law, to apply it within the framework of the Constitution.

MR LANGER: Correct.

BRENNAN CJ: And that is what we are doing here and we do not wish to have any political speeches made in the course of dealing with those functions.

MR LANGER: I have been going quite narrowly on the construction of the Act. I am now going quite narrowly on the constitutional implications of construing it any other way. That if the situation in Australia is that electors are not permitted to directly choose their representatives in Parliament, then that is contrary to the law of Australia. It is contrary to the Constitution of Australia and people will not comply with those government orders. Whereas if the law of Australia is, as I believe it is, and I am not a - I will be quite happy to adopt interpretations of parliamentary legislation that showed that they are up to something, but my belief is that Parliament could not enact an electoral system that says, “You have to vote for candidates you don’t choose”, because of the absurd consequences, and I will put it an entire volume of materials of showing just how absurd those consequences are.

Courts will not accept the idea that an Attorney-General of the executive branch can decide whether or not they charge somebody with contempt of court. Electors will not accept the idea that a judge can order them as to what they advocate in an election. Elections are our business. Administering the law is your business. The Electoral Commission has no right to take part in campaigns. The Solicitor-General has no right to claim that there is ‑ ‑ ‑

BRENNAN CJ: We are not concerned either with the functions of the Electoral Commission or with the views of the Solicitor‑General in the manner in which you are dealing with them.

MR LANGER: I will return strictly to the ‑ ‑ ‑

BRENNAN CJ: We are concerned with the application of the law. I might add that we are not concerned with your view of what the law ought to be. We are concerned with our function of applying the Constitution to determine the constitutional validity of section 329A.

MR LANGER: The Constitution requires that a Parliament be directly chosen by the electors. An electoral law that requires electors to vote for a candidate they oppose, otherwise their vote will not be counted for a candidate they support, could not be a valid enactment. In accordance with ordinary principles of statutory interpretation, in accordance with the Acts Interpretation Act, the Court should construe this legislation on the assumption that they are trying to do something valid. What I believe that they are trying to do is more or less on the lines of what the Solicitor‑General said, that section 270 saves some otherwise exhausted votes; it saves a vote such as 1,2,3,3,5.

I will now draw the Court’s attention to further provisions in the Act that confirm my interpretation of it. Firstly there is the explanatory memorandum which is contained in the Commonwealth’s submissions at tab F - sorry, tab F was the statistics on the number of exhausted votes. I should mention, by the way, there were only about 2,000 exhausted preferential votes for minor candidates. That figure of 70,000 was in relation to Senate votes. Tab D is from the explanatory memorandum to the 1983 Bill. It is referring to section 133 which is now section 268 and explaining that:

the proviso that a final blank square on an otherwise correctly numbered Senate ballot‑paper shall be taken to express the last preference of the voter.

That proviso was deleted from the equivalent of section 269 - section 268 is the related provision. Section 268(c) has a proviso under it that if you leave one square blank, the number you put in that square will be deemed to be your last preference. That proviso is still there after the enactment of section 270. It would be completely redundant unless the purpose was to distinguish between an exhausted vote and a vote that is deemed to be a fully preferential vote. If somebody leaves a blank, their vote will not become exhausted under section 270 because it has already been deemed to have been completed under section 268.

The same provision previously existed for the Senate votes: paragraph (b) had a similar proviso. The explanatory memorandum that the Commonwealth has submitted shows that that proviso was deleted from the Senate provision and left in for the House of Representatives provision. The reason for that is that there is no distinction between a 1,2,2,2 vote for the Senate and an exhausted vote for the Senate. In both cases, a candidate will be elected if they have got a quota or if they are eliminated and nobody has a quota. The difference arises for House of Representative elections, that in a House of Representatives election there is a difference between having an exhausted vote and having a vote that cannot be transferred.

The proviso was left in where it would have naturally been deleted because that question of blank squares is entirely covered by section 270. So, the decision to leave in the proviso for the House while deleting it from the Senate was intended to allow for the proper counting of 1,2,2,2 votes. The debates at the time show that there was a compromise reached between the two parties about optional preferential voting and the whole structure of it confirms that.

The next point is about the way that one construes the Act. If you try to interpret the word “shall” in section 240, you can do so by reference to the same word “shall” in section 239 and this concept of a savings provision, if it is accurate that 270 is just a savings provision, then so is the whole group ticket system for the Senate because it is identical wording.

BRENNAN CJ: What has this to do with the constitutional validity of 329A?

MR LANGER: If you construe 329A, as the Solicitor‑General does, as being intended to prohibit people from casting a vote for a direct choice of representatives ‑ ‑ ‑

BRENNAN CJ: That is not what he says. What he says is it is designed to prevent people from encouraging others who are filling in a vote under section 240, from filling it in in a manner which is inconsistent with what 240 provides.

MR LANGER: If you construe 240 as not permitting a 1,2,2,2 vote, the consequence of that is that 329A prohibits people from encouragement, for example, that the Greens cannot encourage their supporters to vote for the Greens and give a last preference to Liberal and Labor. If it is construed that way, then it is in direct violation of the constitutional requirement that members of Parliament be directly chosen by the people.

McHUGH J: I do not understand that; how you say it is in contravention of section 24. Section 24 does not say that members of the Parliament shall be chosen by every member of the Commonwealth, it says by “the people of the Commonwealth”, which is not necessarily the same term as “the electors of the Commonwealth”.

MR LANGER: We are not discussing the franchise. The term “people” at one time meant “landed gentry”; at one time it meant “men”, now it means “adults”.

McHUGH J: But you seem to be saying that there is a contravention of section 24 if a person’s vote will not be counted if they refuse to vote for every candidate in accordance with section 240.

MR LANGER: Yes. If, instead of allowing the electors to choose the members of Parliament, you say you cannot choose the candidate of your choice unless you also choose some other candidate, and that other candidate then is elected, they have not been chosen by the people, they have been chosen by the electoral office.

McHUGH J: Why not?

MR LANGER: Because it was not a choice of the people. They were told “You’re not allowed to vote”.

McHUGH J: It is a choice of the people. A majority of the people will have chosen a particular person.

MR LANGER: Not if they are not permitted to vote for the person they really support. You cannot say that that is a choice.

McHUGH J: Perhaps I do not understand your argument, but ‑ ‑ ‑

MR LANGER: If they have deliberately voted a second preference for someone, then it is their intention that should their first choice not be elected, that their second choice should be elected. That is fine, that is normal preferential voting. If they have been told, “Your vote for your first preference will not be counted because you have failed to specify somebody else who’ll be elected instead” that is refusing to consider their views as to who should be in Parliament.

McHUGH J: Yes, but it does not mean that the person who was elected is not chosen by the people of the Commonwealth. It means no more than that person has not been chosen by some people of the Commonwealth, including those who voted for other candidates and those who have voted informally.

MR LANGER: But if, for example, people write consecutive numbers, unrepeated numbers, 1,2,3, in the order of the ballot paper, which is what they will do if they are required to do that and do not have a preference, then what happens is that whoever comes first on the ballot paper wins the seat as a result. It is not a reflection of a choice being made; it is a reflection of a refusal to count the votes unless you express a non‑choice.

McHUGH J:Well that may be so but, nevertheless, that person is still chosen by the people of the Commonwealth within the meaning of the term. It just simply means ‑ ‑ ‑

MR LANGER: No, the meaning of the term is not the meaning of the electorate. They would be chosen - I think this is the critical distinction. A person would be declared elected within the meaning of the Electoral Act, who had not been directly chosen by the people within the meaning of the Constitution. That is the critical distinction. That in every country people are permitted to vote for the candidates of their choice or they are stopped by intimidation. No country has electoral laws that say you are not permitted to vote for the candidate of your choice, and Australia does not either. Where you do have unfree elections, it is not done this way, by writing electoral Acts that compel people to vote for people they do not choose. If you do construe it the other way, the simple fact is that people will not give their preferences to parties they do not support, they will have their votes counted that way and you will have judges issuing orders telling people that they are not allowed to tell people about provisions of the Electoral Act.

McHUGH J: That is a different issue altogether.

BRENNAN CJ: Mr Langer, you have been told earlier today that section 240 in its validity are not an issue. We are considering 329A in the context of an Electoral Act which contains section 240, 268(1)(c) and 270(2). Now if 240 requires as a condition of validity that Nos 1 to 6 or whatever it may be should be inserted opposite the names of the candidates in the ballot paper, the sole question is whether 329A, which prohibits a person from encouraging the filling in of a ballot paper otherwise in accordance with section 240, is invalid.

MR LANGER: And my argument is that it does not say that because it could not say that.

BRENNAN CJ: Well, be it so. You say that it does not say that. If one construes 240 as saying that, then 329A falls for consideration.

MR LANGER: If the Parliament had intended to say that, they would have needed to say it in plain words and it would be very easy words to write. Section 240 would say, “You must write consecutive unrepeated numbers” or it would use the more complex formulation in section 271 where they first refer to consecutive numbers and then they say, in considering where the numbers are consecutive, a number that is repeated shall be disregarded. If 240 said something like that, it would be clear that Parliament intended to prevent people casting a formal vote unless they had voted for people they did not choose.

BRENNAN CJ: Whatever 240 means, it means. Whatever 240 means, 329A is designed to prohibit people from encouraging others from filling out ballot papers otherwise than in accordance with 240.

MR LANGER: And if the Solicitor‑General is correct in saying what 240 means, it follows that 329A is invalid. And if I am correct in saying what 240 means, then section 329A could be valid.

BRENNAN CJ: Why is it if 240 means what the Solicitor-General means, 329A is invalid assuming, entirely, that 240 prohibits the 1,2,2,2 vote from being counted?

MR LANGER: Because electors are guaranteed a right in the Constitution to directly choose their representatives in Parliament. I will take the Court now to the materials on the meaning ‑ ‑ ‑

BRENNAN CJ: And, therefore, if I understand your argument, 240 would be invalid?

MR LANGER: Yes.

BRENNAN CJ: But we have already got to the stage of understanding that 240 and its validity are not in question.

MR LANGER: Section 329A consists solely of a prohibition on encouraging votes otherwise than in accordance with 240. If 240 is not valid, section 329A must be totally meaningless.

BRENNAN CJ: Why has it not got the meaning that to cast a valid vote under this system, defective you might say it to be, it is nonetheless an effective provision to ensure that there is a minimal wastage of votes in the sense of having votes which are not being counted in the scrutiny?

MR LANGER: If 240 is invalid, 329A must be invalid.

McHUGH J: Yes, but this case proceeds on the assumption that 240 is valid, because the only question that is here is the validity of 329A.

MR LANGER: And the only provision in 329A is that you may not encourage people to vote otherwise than in accordance with 240.

McHUGH J: That is why I put to you this morning that section 240 is involved here only as a matter of construction, not as a matter of its own constitutional validity. You need a different case, it seems to me. I would be the last person to be encouraging you to take litigation but this case does not seem to be the case to raise the issues that you wish to raise.

MR LANGER: The question reserved was proposed by the Solicitor‑General and adopted by Justice Deane in a case which was not to raise these issues but seeking an injunction to restrain the Electoral Commission from claiming that the Act should be construed the way that they claim it. That case is on foot. This question reserved is being heard, and I would have been perfectly happy if instead of reserving the question to the Full Court, Justice Deane had simply ordered the Electoral Commissioner to stop it. My objection is to the misleading and intimidating people in the election and that is what my writ was about. A question was reserved and you have to answer the question - is it valid or not? If it does mean that the Electoral Commissioner is - the Solicitor‑General is saying now that the enactment does authorise -in the next general election - it authorises the Electoral Commissioner to threaten people with injunctions if they urge people to directly choose their representatives in Parliament. If that is the case, it must be invalid. It is a simple constitutional argument. If that is not the case, then it need not be invalid.

BRENNAN CJ: The way you put it, of course, begs the very question that arises. The question that will arise is whether or not the Electoral Commissioner is entitled to proceed on the footing that 329A prohibits a person from encouraging a voter from filling out a ballot paper otherwise than in accordance with section 240.

MR LANGER: The consequence of not construing section 240 today would be that when there is another general election and the issue does blow up, that there will be a whole series of disputed returns questions because nobody knows whether or not the law does correspond to what the Solicitor‑General said because you decided not to answer it. I mean, that would seem to be an absurd consequence for the High Court to want. The Court has got a clear question before it where it is being argued that this is what it is for, that the whole purpose of the legislation is to stamp out these people who are subverting the electoral process by encouraging people to vote according to their choice. Your Honours are saying, “We won’t consider that, won’t give you a view as to whether that’s right or not”. The Solicitor‑General has put it to the Court that that is what the Act is for and I am putting to you that that is not what the Act is for. I will take the Court back to the materials.

BRENNAN CJ: This is intended to be a reply to the Solicitor‑General’s submissions. We do not propose to rehearse the whole case all over again, Mr Langer.

MR LANGER: I simply want to put to the Court the extrinsic materials as to the meaning of section 329A that were before the Parliament when it enacted it that the Solicitor‑General has put in a number of the reports from the joint standing committee to explain the background to 329A, and I want to draw the Court’s attention to an item from my volume of materials that shows that there was other material before that was enacted.

BRENNAN CJ: Very well.

MR LANGER: This is from volume 3 from section 9. This is the joint standing committee on electoral matters report on the 1990 election. It has a series of letters from the Attorney‑General’s Department and Parliamentary Council. Have your Honours found that?

McHUGH J: I read it earlier, but it really has nothing to do with the construction. It was not before the Parliament, was it?

MR LANGER: Yes, it was tabled in Parliament the day after the third reading and the legislation was enacted a couple of weeks later on Christmas eve, along with 54 other Acts of Parliament. So, presumably, the Governor‑General, while he was studying all these 54 Acts of Parliament and determining whether to assent to them in his customary manner, was aware of these extrinsic materials that had been tabled for his benefit. I find the whole ‑ ‑ ‑

TOOHEY J: But that is a different proposition. What are you saying, Mr Langer, that this material was tabled after the Bill had passed through the House?

MR LANGER: Prior to the legislation being enacted. The legislation is not enacted until the Governor‑General assents to it.

TOOHEY J: Yes, I understand that.

BRENNAN CJ: You say after the third reading?

MR LANGER: It was first introduced ‑ ‑ ‑

BRENNAN CJ: After the third reading, or not?

MR LANGER: After the third reading. They did not even mention section 270 when they introduced it in the Senate. That was the purpose of tabling it. The purpose of tabling it is in order for it to be extrinsic materials.

BRENNAN CJ: We do not propose to receive it, Mr Langer.

MR LANGER: Well, that is it.

BRENNAN CJ: The Court will consider its decision in this matter.

AT 3.54 PM THE MATTER WAS ADJOURNED

[1995] HCATrans 287

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