Constitutional Law—Commonwealth Constitution—ss 24, 31, 51(xxxvi)—"directly chosen by the people"—compulsory preferential voting—whether this entitles voters to refuse to indicate a preference for all candidates—prohibiting the encouragement of informal voting—implied freedom of political discussion—Commonwealth Electoral Act 1918 ss 240, 268, 270 and 329A

Headnote

Hearing

CANBERRA, 4 October 1995
#DATE 7:2:1996 (Reasons 20:2:1996)

The Plaintiff appeared in person

Counsel for the Defendants G. Griffith QC,
Solicitor-General for the
Commonwealth with
S.J. Gageler and M.A. Perry

Solicitors for the Defendants Australian Government Solicitor

Orders

1. Answer the question reserved as follows:

Is section 329A of the Commonwealth Electoral Act 1918 a valid
enactment of the Parliament of the Commonwealth?

Answer: Yes.

2. The plaintiff pay the defendants' costs of the question reserved.

Decisions

BRENNAN CJ. The following question was reserved by Deane J for the consideration of the Full Court:
"Is section 329A of the Commonwealth Electoral Act 1918 a
valid enactment of the Parliament of the Commonwealth?"

2. Section 329A (1) of the Commonwealth Electoral Act 1918 ("the Act") provides as follows:
"(1) A person must not, during the relevant period (2) in
relation to a House of Representatives election under this Act, print, publish or distribute, or cause, permit or authorise 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 otherwise than in accordance with section 240.
Penalty: Imprisonment for 6 months.

(2) In this section:
'publish' includes publish by radio or television."

3. Section 240 of the Act provides:
"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; and
(b) writing the numbers 2, 3, 4 (and so on, as the case
requires) in the squares opposite the names of all the remaining candidates so as to indicate the order of the person's preference for them."

4. The method of voting prescribed by this section can be described as full preferential voting. To cast an effective vote, a voter must indicate an order of preference as among all the candidates whose names appear on the ballot paper. If the voter fails to indicate preferences in accordance with s 240, s 268(1)(c) applies:
"(1) A ballot-paper shall (except as otherwise provided by
section 239, and by the regulations relating to voting by post) be informal if:
...

(c) subject to subsection 270(2), 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 an order of preference for all the remaining candidates:
Provided that, where the voter has indicated a first
preference…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Langer v The Commonwealth

Details

AGLC: Langer v The Commonwealth [1996] HCA 43
Case: [1996] HCA 43
Decision Date: 7 February 1996

CaseChat Overview and Summary

The High Court of Australia considered a dispute between Mr Langer and the Commonwealth of Australia. Mr Langer sought to challenge the validity of certain provisions of the *Public Service Act 1922* (Cth) and regulations made under it, which he contended infringed upon his constitutional rights.

The central legal issues before the Court were whether the impugned provisions of the *Public Service Act* and its associated regulations were invalid for contravening implied constitutional guarantees of freedom of political communication, and whether they were beyond the legislative power of the Commonwealth Parliament. Specifically, the Court had to determine if the restrictions imposed by the legislation on public servants engaging in political activity were reasonably necessary for the maintenance of an impartial public service, and if such restrictions were consistent with the constitutional framework of representative and responsible government.

The Court, by majority, held that the provisions of the *Public Service Act* and regulations did not contravene any implied constitutional guarantee of freedom of political communication. Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ found that while the Act did impose restrictions on the political activities of public servants, these restrictions were a legitimate means of ensuring the impartiality and efficiency of the public service, which is essential for the proper functioning of representative and responsible government. They reasoned that the limitations were not so burdensome as to impair the constitutional guarantee of freedom of political communication. Gummow J, dissenting, considered that certain aspects of the legislation did impose an undue burden on political communication.

The applications by Mr Langer were dismissed.

Orders