Langer v The Commonwealth of Australia

[1993] HCATrans 57

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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

DEANE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 11 MARCH 1993, AT 9.34 AM

Copyright in the High Court of Australia

Langer 1 11/3/93

HIS HONOUR:  You are Mr Langer, are you?

MR A. LANGER: That is right, Your Honour.

HIS HONOUR:	And you are appearing for yourself?
MR LANGER:	Yes.

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth:

If Your Honour pleases, I appear with my learned

friend, MR D.C. BENNETT, for the respondent.

(instructed by the Australian Government Solicitor)

HIS HONOUR:  Mr Langer, I have read all the papers that are

in the Court file, which means that you do not have

to formally take me through them. I will note

though for the record that I have read a writ of

summons and a statement of claim dated 5 March, a

notice of motion dated 8 March, an affidavit of

Albert Langer dated 8 March and the exhibits

thereto and a further affidavit of Albert Langer

dated 8 March. Now, if you can just sit down for a

second, that leads me to ask the Solicitor, are

there any parts of those affidavits that you want

us to go into admissibility.

MR LANGER:  Could I correct an error in one of the

affidavits?

HIS HONOUR:  Certainly, but if we can just find out if there

is any dispute about admissibility.

MR GRIFFITH:  Your Honour, we cannot say there is a dispute

about it, in fact, we do not wish to take any

technical points about this material before Your

Honour.

HIS HONOUR: Well, I think we can - even if some of the

material were technically open to objection, it

would lead fairly inevitably to a conclusion that

the Commission is acting on the basis that the

section is valid and applies to informal voting.

MR GRIFFITH: Yes, Your Honour, that view is taken, although

my instructions are there is no present intention

to take any proceedings for an injunction.

HIS HONOUR: Well, there is no evidence to suggest, really,

that there is.

MR GRIFFITH:  Your Honour, it might assist also, if I could

indicate that our view basically of the statement

of claim is that it does raise an issue that could

appropriately be referred into the Full Court on a

question reserved and, although there is a minor

pleading point, Your Honour, we feel that the

Langer 2 11/3/93

question of validity of the section could be
reserved just on the basis of the statement of

claim.

HIS HONOUR:  Good, thank you, Mr Solicitor. Now, Mr Langer,

you wanted to correct something.

MR LANGER:  Yes, I annexed a paragraph 5 - - -

HIS HONOUR: It is a matter for you. If you are more

comfortable sitting down, stay seated, whichever

you prefer.

MR LANGER:  Thank you. In paragraph of my affidavit of 5

March I listed leaflets and said a true copy of

which was marked "F" and on the same day received

from the AEC a reply, a true copy of which was

annexed and marked "G". I meant to say, "On the

same day as it was sent". It was, in fact, as you

can see from the annexure "G" the leaflet was sent

to them·on 27 February and the reply was on 1 March

and I received it that day. That was a minor

amendment.

HIS HONOUR: Well, that will be in the - it might be better

if you could just move a little bit that way so

what you say is definitely recorded. That will be

recorded in the transcript. Well now, Mr Langer,

you have heard what the Solicitor has said, and I

can tell you this, having read the documents it

appears to me that you have an arguable case, that
section 329A, if construed in the manner the

Commission construes it, is invalid. Beyond that it would be inappropriate for me to seek to go on

an interlocutory basis.

It also seems to me that what the Solicitor

has said is correct and the matter is an

appropriate one to be referred to the whole Court
for a decision. Well now, that leads us really to

the single question outstanding now, I would have

thought, and that is whether any interlocutory

relief should be granted at this stage. Well now,

you can say whatever you like on that question and,

of course, on anything else you want to address.

MR LANGER:  My view is that the declarations I sought have

already been made by this Court in the last few

months in the Political Advertisements cases, by

the Bill of Rights three or four hundred years ago

and by the Magna Carta nine hundred years ago. I

feel a little embarrassed in asking the Full Court
to convene to reissue these rather ancient
declarations that elections ought to be free, and

if anyone was to seek such a declaration it ought,

in fact, to have been the Electoral Commissioner on

receiving a writ from the Governor-General to call

Langer 11/3/93

an election immediately following a proclamation by

the Governor-General of an Act that made the

election unfree; that it would have been quite

proper for the Electoral Commission to seek a

declaration from the Court to avoid the consequence

of having to preside over an unfree election.

What I seek is an interim order to stop this

nonsense by the simple expedient of the Court

deciding that it will convene a Full Court to issue

the appropriate declarations, and if Your Honour

cannot do that this afternoon or tomorrow, then the

Court will adjourn with orders to the Electoral

Commission and the State electoral offices and

anyone else Your Honour can think of to make sure

that they do not hold that unfree election in the

meantime.

The issue that the Court would have to decide

is, of course, the balance of convenience there,

that it-is clear that there is an arguable case to

be tried. It is not clear to me. I do not know

the High Court procedures as to whether, when the

declaration that is required is so obvious, you do,

in fact, need a Full Court and whether there is an

arguable case to be tried on the other side.

Normally, I would imagine that in any

constitutional issue the Commonwealth is certainly

entitled to be heard, to have notice and to present

its legal arguments, and something so major as

overruling the two Houses of Parliament and the
Governor-General, it should have a certain amount

of pomp and ceremony. But I would say this is so
straightforward that the Court could issue a

declaration ex parte, that these people know that elections are to be free, and it is not something

that really does require all the usual

magnificence. But if it does require it, they

certainly cannot go around holding an unfree

election in the meantime.

Now, normally, the balance of convenience - if

some individual was engaged in illegal practices in

an election, or even a political party, or a major

newspaper chain, you would have to weigh very

carefully the balance of convenience there as to

how much likelihood there was of real damage being

done to the election, and whether it could be cured

by a Court of Disputed Returns after the election.

It seems to me that where the Commonwealth

itself is engaged in the intimidation and the

misleading practices, and where the Electoral

Commission is engaged in those practices, the

balance of convenience is very clearly on the side

of stopping them at once. There basically is not

any one else in Australia who could do the kind of

Langer 4 11/3/93

damage to the election that the Electoral

Commissioner and the Electoral Commission, of which

is the chief executive, are doing.

There is not a form of intimidation that could

be more severe than an Act of the Commonwealth

Parliament threatening to send people to gaol for

six months for exercising their lawful rights to

encourage other voters to vote lawfully.

HIS HONOUR:  If I can just direct your attention to the matters that are operating in my mind. One is, it

is a well-settled rule in this Court that in

applications for interlocutory relief on the basis

of legislation being invalid that, other than in an

absolutely clear case - and I think I should tell

you I do not think there is any prospect of your

persuading me that this is an absolutely clear case

in that sense - the Court acts on the basis of

validit¥. until invalidity is established.

The other matter is that if criminal

proceedings were brought against you or anybody

else for an alleged breach of this section, if the

section is invalid that is a defence to the

criminal proceedings, which means for the Court to

grant an injunction restraining criminal

proceedings only has an effect if, in fact, the

section is valid.

MR LANGER:  Basically, my concern is that anything that is

done this late in the election to prevent me being

criminally prosecuting does not change the reality

of what the issues really before the Court are,

which is whether this election is a free election

or not. I mean, they could prosecute me tomorrow,
or they could prosecute me next week, or they
could, what I suspect they probably intend to do,
is merely make threatening and intimidating noises

as they have done, in the full expectation that

eventually the Full Court will declare it

unconstitutional. It is not the criminal

prosecution that really is the central element in

why the Court should act now. The central element

is that 10,000,000 people or more are being called

upon to go on Saturday to vote in an election that

is not free.

If the Court does come to the conclusion that this is not an absolutely clear cut case of an

unconstitutional provision, and does decide to

allow that law to stand until it has been fully

argued as to whether it is constitutional or not,

then 10 million people are going to be voting in

the circumstances of not knowing whether this law

is valid or not and people who would have been

encouraging them to vote in ways that are lawful

Langer 5 11/3/93

are going to be intimidated from doing so by the

threat of six months imprisonment.

I would say that, firstly, it is an absolutely

clear case, and I can certainly understand you

saying that you have not come to that conclusion

yet because I have not argued it yet, but I am

entitled to argue to you that it is an absolutely

clear case.

HIS HONOUR:  You would not only have to convince me that I

would end up in your favour, and on that I express

no view because I have none, but you would have to

convince me that a majority of the other members of

the Court would end up in your favour, since the

matter obviously needs to go to a Full Court, and

being fairly well acquainted with the judgments in the two recent cases, you can try if you like, but

I really think you would be wasting everybody's

time. ·

MR LANGER: Well, the problem is that if I do not waste your

time - and I realize that is a serious thing to do

with a High Court judge - - -

HIS HONOUR:	Not really; we have whatever time you need.
MR LANGER:	But if I do not, then this Court and the

Commonwealth Government and the Electoral

Commission could be wasting 10 million people's time on Saturday, and I really think one should

look at the magnitude of this. If the Commonwealth

Parliament enacts a law which says you shall not

encourage a voter to vote against the sitting

member, everyone knows it is going to be declared

unconstitutional, right? But if they nevertheless

get away with that law, by bringing it in in the

most sneaky manner immediately prior to an

election, and the election is conducted on that

basis, then the consequence is that either you have

to have a new election afterwards or you have got

such a major change in regime in Australia that you

might not have new elections afterwards.

Now, I do not think we are in danger of the

latter, but if in fact an unfree election is held

in Australia, if an election is held under a law

that says you cannot encourage people to vote in

ways that are lawful, I would assume that a court

of disputed returns would declare that election

invalid. Now, if that happens there is a pretty

major balance of convenience against allowing it to

happen, that, for example, if you believed that the Full Court would not see it as absolutely clear and could not reach a decision about it today or

tomorrow, then maybe you need to sit during next

week. But the one thing that you cannot or at

Langer 6 11/3/93

least should not do is acquiesce in this law by

allowing an election to proceed that would later

then be declared unfree. And, I have not got the

case in front· of me about acquiescence in electoral

intimidation, but the basic principle is that if

somebody engages in general intimidation of an

election, it is the duty of anyone in authority to

the High Court. So, if having considered the matter you decide it is not absolutely clear and

put a stop to it and the only authority that can

put a stop to intimidation by the Electoral

you will allow it to proceed and you later come to

the conclusion that, yes, this was

unconstitutional, you are, in effect, acquiescing

in intimidation of the electorate. And, I think

that is a serious enough matter to risk wasting

your time over. That 10 million people should not

be called upon to vote on Saturday under

circumst.ances where the Commonweal th Parliament has

attempted to intimidate them.

HIS HONOUR: Well proceed.

MR LANGER:  I think it is clear that an election, a

parliamentary election, involves a straightforward
choice among candidates and the people who choose
to exercise their vote for none of the candidates

are allowing the rest to choose which of those

candidates will win. It is a normal part of any

parliamentary election in any country that has

them, that a lot of voters do choose not to make

that choice. In countries where there is no

compulsory voting they usually make it by not

turning up. In Australia and Belgium, where there

is compulsory voting, they go along and vote

informal. It has not been claimed by the

Commonwealth that it is unlawful to vote informal

and it does not need argument to establish that it

is in fact perfectly lawful to vote informal; the

Chief Justice just said, obviously it is no offence
to vote informal.	I think the case was Faderson

and somebody, but I can give you the reference if

you like. But it does not require any reasoning or
analysis to just draw the conclusion that obviously

you are entitled to vote informal.

Now the principle that elections shall be free

simply means that there cannot be something telling

you that you cannot encourage people to vote in

ways that are lawful.

It does not require detailed analysis; it does

not require the sort of judgments that were being

made in the election Ads case of weighing up the

different - the extent to which the Commonwealth

was using its powers, whether it was going beyond

Langer 7 11/3/93

what was appropriate and so on; it does not require

any complex process of judicial analysis to

conclude that you cannot have a law that says you

may not encourage people to vote in a way that is

lawful. It just is a natural feature of what an

election is about, and having already reached these

decisions, flowing from the right of the Australian

people to choose their representatives to the

Commonwealth Parliament, there are a whole range of

other freedoms and a whole range of things that the

Commonwealth cannot do. You simply do not need any

consideration to realize that the Commonwealth

cannot outlaw that right, and if it purports to

bring in legislation that tells you that you must

vote formally, that is something that could be

argued, but it is up to the Commonwealth what kind

of electoral system it has and it might be an

arguable case that people have to discuss whether

or not the Commonwealth could constitutionally

bring in a law that says, "You shall vote

formally·".

But given that it has laws that say, "You may

vote any way you like and we will have a secret

ballot" and so on, given that it is lawful to vote

informally, then it is the very essence of

intimidation for the Commonwealth to try and

criminalize encouraging people to vote in ways that

is lawful. What could the Commonwealth do that would be more illegal than that in an election?

The only things they could do would be to vary the

subject-matter of it. They could have made it that

you cannot encourage people to vote against a

sitting member, or you cannot encourage people to

vote against an ALP candidate or whatever, but in

whatever form they do, having said that it is legal

to vote a certain way, they cannot then say it is

illegal to encourage people to vote that way.

Now, the question that makes it important is that this could in fact determine the outcome of

the elections. That there is a very great deal of

scepticism about the claims made by all the

competing parties, as there is in any election, but
a quite central part of that is that there are

large numbers of Labor voters who would not, under any circumstances, vote for the coalition parties, and are weighing up in their minds whether or not

Hewson is so bad as Mr Keating portrays him that

they will have to put up with the lizard called

Mr Keating. And they are making that choice,

whether it is so awful the other side that they

will have to vote for the devil they know.

In making that choice, if the people who are

encouraging them to vote against both the lizards

are prevented by the threat of criminal

Langer 8 11/3/93

prosecution, then that election can be swung by

that result. There could be tens of thousands of

votes difference according to whether the leaflets

and television ads that are urging people to vote

informal and say, "A plague on all their houses"

are prohibited or not. So if the Court stands

aside and allows that election to proceed, it is

standing aside and allowing the Government to

intimidate the electorate.	And that is basically
it.

HIS HONOUR:	Mr Solicitor, I need not trouble you on the proposition that the answer to the question is so
clear that it should, as it were, be treated as
beyond argument.  Is there anything you want to say
in reply to what has been said on balance of
convenience?
MR GRIFFITH:	Your Honour, I feel there is no need to take

Your Honour to the usual authorities on injunctions

and constitutional matters, but perhaps distinguish

the case of "In Re Lewis Carroll ex parte The Queen

of Hearts", Your Honour, and in this Court it is

more a matter of verdict after the trial rather

than before.

Perhaps, in an intention to be helpful,

Your Honour - I hope it is seen as that - we would

propose that the matter could go forward on the

basis of if Your Honour were prepared to state a

question in the form of the claim of paragraph l'of

the statement of claim on the basis that we do not

admit paragraphs 10 and 12 of the statement of

claim.

HIS HONOUR:	I propose to take a short adjournment before expressing a conclusion or reasons on the
application for interlocutory relief. Perhaps we
might leave until then the determination of where the matter goes from here.
MR GRIFFITH: If Your Honour pleases.

MR LANGER: Before you do adjourn, could I - - -

HIS HONOUR: Certainly.

MR LANGER:  The paras 10 and 12 which the Commonwealth is

not admitting are quite central. I would like you

to look at the affidavit in terms of - - -

HIS HONOUR:  I was not going to deal with that until we had

disposed of the question of whether I make

interlocutory orders. You can be assured we will

not do anything on that without it being discussed.

Langer 9 11/3/93

MR LANGER:  In regard to interlocutory orders, I think the

Court should look at the conduct of the defendant

and the defendant's behaviour in this matter. That

what emerges from the material in Hansard and the

government's explanatory memorandum for the Act,

makes it fairly clear that the Electoral

Commission, which drafted the legislation, and the

government that put it before the Parliament was

quite consciously trying to deceive the Parliament as to what the effect of the legislation would be.

They certainly told the Parliament that it does

have the effect of outlawing a vote like 1, 2, 2,

2.

One of the senators in the debate said, "Does

not this mean we are making it a crime to advocate

a vote that is lawful?". But they quite

deliberately concealed from the Parliament the fact

that it had the effect of making it unlawful to

vote informally and yet the other affidavits that I

have submitted show that this has in fact been the

long term aim of the Electoral Commission during

the last three elections.

That even when there was no such legislation,

as the section that is in dispute now, the

Electoral Commission was harassing and intimidating

people in the elections by claiming that it was

illegal to vote informal, then by taking out
injunctions to stop them from advocating that, and
when they lost those injunctions and were given

orders merely on urging people not to vote at all,

which was not, in fact, what people were doing,

they proceeded to collect costs of about $12,000 and are in the middle of trying to sell people's

homes over it at moment.

HIS HONOUR:	If you get involved in allegations about trying to sell people's homes, about which there is no
evidence at all before me, and which really does
not seem to be relevant, you are creating a
position in which people are being maligned in this
Court, with no opportunity of answering the
allegations against them.

MR LANGER:  I appreciate that. I have not got the

affidavits on that, I just received a fax this

morning with statements and when it does come on

later I will put in the affidavit material and

explain the relevance then.

HIS HONOUR:  I really do not think selling people's homes is

going to have much to do with it.

MR LANGER:  When you have an Electoral Commission that in three successive general elections has tried to

Langer 10 11/3/93

intimidate people against encouraging others to

vote informal - - -

HIS HONOUR:	You have said that, but what we were referring to was a government authority, with a judgment,
taking steps to execute on that judgment. Now, all
I am saying is, when there is no evidence on the
matter, it does not help me to put that in the colourful language of selling people's homes which involves an accusation against individual people.
I just find it singularly unhelpful.

MR LANGER: Well, I am afraid I have not got the evidence

before you because of the time constraints, so I

will have to leave it until I can bring in the

affidavit material. But it is as a result of this

current thing coming up so suddenly through

television broadcasts on 22 February that suddenly says it is illegal to do what everyone had thought

was legal. Without going into the details of it,

this is not something new that suddenly occurred to

the government in December and they had this bright

idea and that they misdrafted the section, or

something like that, like in the Nationwide case

concerning bringing an industrial court into

disrepute, there was a reference by one of the

judges that it would be tempting to think that this

was a draftsman's error, and the material that is

before you shows it is no draftsman's error.

This was the result that the Electoral

Commission sought; that they drafted that

legislation to achieve the result of making it

illegal to encourage people to vote informal. They

got it put through Parliament on the basis that it

was to achieve something else, which I would say

also unconstitutional, and they will succeed in

carrying out an election with people intimidated in

that way, unless the Court acts today or tomorrow,

and that conduct by the defendants should be

sufficient to sweep aside any objections they have

to being dealt with quite summarily by the Court.

It simply should not be allowed for a government

and its electoral commission to behave in that kind

of way.

The elections should be conducted according to

the law that everyone understands about elections,
not in the way that the electoral officer for South

Australia announced in the radio broadcast which is in my affidavit there, where he says, "Well, it is

only the High Court that can declare the law.	As
far as I am concerned it is a law until the

High Court declares otherwise.", which is all very

true in the normal circumstances, but is a very

strange way to be conducting an election; that you

bring in an Act immediately before the election,

Langer 11 11/3/93

which you know damn well the High Court will

declare unconstitutional immediately after it and
in the meantime you conduct an unfree election. I
say that the Court has an inherent jurisdiction to

prevent that kind of abuse of the electoral system.

That you are the only authority that can stop a

government behaving in this way and that if you

choose not to stop them you are acquiescing in it.

HIS HONOUR:  Mr Solicitor, can I ask you to repeat what you

said at the commencement about the Commission's

current intentions?

MR GRIFFITH:  Your Honour, it has no present intention to

take proceedings for an injunction, or to

prosecute.

HIS HONOUR:  Very well, I will take a short adjournment. I

would think I will need about a quarter of an hour,

so if it is not inconvenient for you, I will resume

as soon as I have worked out what I propose to do.

MR GRIFFITH:  I wonder if Your Honour could indicate 20

minutes so I could hear judgments in the other

matters?

HIS HONOUR:  Certainly. What about I say unless you hear to the contrary we will resume at 10.25?

MR GRIFFITH: If Your Honour pleases.

AT 10.05 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.39 AM:

HIS HONOUR: Before me is a notice of motion filed in

proceedings instituted in the original jurisdiction

of the Court by Mr Albert Langer as plaintiff ("the

plaintiff"). In those proceedings, the plaintiff

seeks, among other relief, a declaration that

s. 329A of the Commonwealth Electoral Act 1918

("the Act") is invalid. The defendants in the

proceedings are the Commonwealth of Australia, the

Australian Electoral Commission established by

section 6 of the Act, and Mr Brian Cox who is the

Electoral Commissioner pursuant to s. 18 of the

Act.

Section 329A was introduced by the Electoral

and Referendum Act 1992 (Cth), which commenced

Langer 12 11/3/93

operation on 24 December 1992. It is in these

terms:

(1) A person must not, during the relevant

period 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.

Under s. 322 of the Act, "relevant period"

refers to the period commencing on the issue of the
writ for the election and expiring at the close of
the poll on polling day. 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.

On 8 February 1993, writs were issued for a

general election to elect members of the

Commonwealth House of Representatives and Senate.

In his statement of claim, the plaintiff alleges

that, since that date, the Electoral Commission and

the Electoral Commissioner have published material

based on s. 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.

The statement of claim also alleges that the

plaintiff has published and intends to continue to publish material in which voters are encouraged to vote informally by filling in a ballot paper

Langer 13 11/3/93

otherwise than in accordance withs. 240 of the

Act and that the Electoral Commission and the

Electoral Commissioner have threatened and intend, unless restrained, to prosecute the plaintiff for

breaches of s. 329A.

In the notice of motion, which is at present before me, the plaintiff seeks:

1. A declaration that section 329A of the

Commonwealth Electoral Act 1918 is invalid.

2. A mandatory injunction requiring the

defendants to publicise widely the orders of

this Court and to rectify adequately the

misleading and intimidating material already

published.

3. An injunction to restrain the second and

thi-rd defendants [i.e. the Commission and the

Commissioner] from instituting or threatening

to institute proceedings against the plaintiff

for breach of s. 329A of the Commonwealth
Electoral Act.

The affidavit evidence filed in support of the notice of motion establishes that officers of the

Commission have, in communications with the

plaintiff and others, given advice and acted on the

basis thats. 329A of the Act is a valid enactment
of the Parliament, which makes it a criminal
offence to print, publish or distribute, or cause,

permit or authorise to be printed, published or

distributed, any matter or thing with the intention

of encouraging an informal vote in an election for

the House of Representatives. I am prepared to

infer from letters written to the plaintiff which

are in evidence that, were it not for the present

proceedings in this Court, there would be a real

likelihood that the Commissioner would, pursuant to

s. 382 of the Act, institute criminal proceedings

against the plaintiff for an alleged breach of

s. 329A if the plaintiff continues to distribute

material urging or encouraging people to vote

informally in the election which is to be held next

Saturday. However, in the context of the present

proceedings, the Solicitor-General has informed the

Court that the Commission has no present intention

to institute criminal proceedings or proceedings for an injunction in relation to any apprehended breach of what it sees as the valid requirements of

s. 329A.

The first question to be asked in considering

whether there should be a grant of interlocutory

relief is whether there is a reasonable prospect

that the plaintiff will eventually succeed in his

Langer 14 11/3/93

attack on the validity of s. 329A. On that

question, it appears to me that the plaintiff has

an arguable case either thats. 329A should be

construed in a way which would not extend to non-

misleading material which encourages a person

knowingly to cast an informal vote or that

s. 329A is, if construed in the manner in which the

Commission construes it, beyond the legislative competence of the Commonwealth Parliament and

invalid. In that regard I am conscious of the fact

that there is no provision of the Act which makes

the casting of an informal vote a criminal offence.

The basis of the argument thats. 329A is invalid

lies, as I see the matter, in the constitutional

principles explained in the recent cases of

Australian Capital Television Pty Ltd v The

Commonwealth, (1992) 108 ALR 577 and Nationwide

News Pty Ltd v Wills, (1992) 108 ALR 681.

The question of the possible invalidity of

s. 329A is plainly an important one in what is

arguably a developing area of constitutional law.

It is clearly a question which is appropriate to be

argued before the whole Court. I indicate no view

about what the ultimate answer to it will be. It

is, however, necessary that I make plain that the

plaintiff has not persuaded me that it is quite

clear that the whole Court will eventually hold

thats. 329A is invalid. Accordingly, it becomes

necessary for me to consider whether I should grant

interlocutory relief preventing the Commission from

acting on the basis thats. 329A is a valid law of
the Commonwealth or from instituting criminal
proceedings for any acts done in contravention of

the words of that section.

It is well settled that, in considering

whether interlocutory relief should be granted in a

case such as the present, the starting point must

be that the Court must, to adopt the words of

Mason A.C.J. in Castlemaine Tooheys Ltd v South

Australia, (1986) 161 CLR 148, respect the

enactment of the Parliament unless and until that

enactment is adjudged ultra vires.

In the present case, there is no evidence that

officers of the Commission have sought physically to prevent distribution of material advocating an

informed informal vote. As has been said, the

Solicitor-General has stated that the Commission has no present intention to institute criminal

proceedings, or to seek injunctive relief. Even if

the Commission did institute such proceedings or

seek such relief, the argument thats. 329A is

invalid would be available to the accused or the

defendant as a defence to the proceedings.	I have
taken account of what has been said by the

Langer 15 11/3/93

plaintiff in support of the making of interlocutory

orders. I have, however, come to the firm

conclusion that it would, in all the circumstances
of this case, be inappropriate to make any such

orders.

In view of some comments which the plaintiff

made, I should add that the refusal of

interlocutory relief does not involve any

endorsement of or acquiescence in any attempt by

the Commission to enforce what it sees as the valid
requirements of s. 329A. It involves no more than

a conclusion that, acting on the basis of settled

legal principles, the material before the Court

does not justify the granting of interlocutory

relief.

Now, from there, gentlemen, we need to proceed

to the next step. Looking at the statement of

claim: --now, what were the paragraphs you indicated

you had difficulty with, Mr Solicitor.

MR GRIFFITH: Well, Your Honour, we do not admit

paragraphs 10 and 12, and as to paragraph 9,

Your Honour, we say it is a case the DPP also could

bring proceedings, but perhaps that is by the by.

HIS HONOUR: It is a case of - - -?

MR GRIFFITH:  The DPP also could bring proceedings in

paragraph 9, but that is - - -

HIS HONOUR:  I see, yes.

MR GRIFFITH: But, Your Honour, to be constructive about

this, it might be sufficient, Your Honour, if this

entire statement of claim were before the Court on the basis that the plaintiff makes his allegations

and when defendant -

HIS HONOUR:	The allegations, yes.
MR GRIFFITH:	- - - does not admit paragraphs 10 and 12,

Your Honour, we submit that is not relevant to the

issue of whether or not section 329A is valid.

HIS HONOUR:	Now, what would you suggest that I refer to the
MR GRIFFITH:	Your Honour, we suggest the question be the question of whether section 329A of the
Commonwealth Electoral Act 1918 is invalid and if,
prior to Your Honour reserving that question, the
document, the Court's order, merely referred to the statement of claim and the fact that the defendants
do not admit paragraphs 10 and 12.

Langer 16 11/3/93

HIS HONOUR:  What is the section of the Act?

MR GRIFFITH: Section 18 of the Judiciary Act, Your Honour.

HIS HONOUR:	Mr Langer, do you follow what is happening now? You have not succeeded in getting interlocutory
orders.  You have succeeded in persuading me there
is an important constitutional question which is
arguable from the plaintiff's point of view. I
have expressed the view that the question of the
validity of section 329A should be referred for the decision of the whole of the Court. That means under section 18 of the Judiciary Act, I have the
power to reserve that question for the
consideration of the Full Court. Unless you are opposed to that course, I propose to do that.
MR LANGER:	I presume you are not proposing to do it this

afternoon or tomorrow or Saturday morning?

HIS HONOUR:  No, a Full Court could not sit this afternoon

or tomorrow.

MR LANGER:  I am not opposed to that course, but I would

like you to make an order in line with the position

adopted by the Full Court in the case of Tait v Reg
to make interim orders not along the lines of my

notice of motion for interlocutory relief, but

simply to uphold the authority of the Court that in

order for the Full Court to be able to consider

this matter properly, the electorate should not be

hanged in the meantime.

If the Full Court is not planning to meet

before the date of the election, I think it is

quite proper for the Full Court to have the

opportunity to consider whatever arguments the

Commonwealth wants to put up, but you should make

an order to uphold the authority of the Court in

the meantime. In the case of Tait, it was rather

doubtful whether the High Court had any

jurisdiction in the matter at all, but nevertheless

it ordered the sheriff not to execute a warrant

from the Governor of Victoria. I think you should

order the Electoral Commissioner not to execute a

warrant from the Governor-General.

HIS HONOUR:  I have considered the arguments for

interlocutory relief and decided I am not going to

make orders for interlocutory relief.

In that case I reserve for the consideration of the Full Court the following question: is

s. 329A of the Commonwealth Electoral Act 1918 a

valid enactment of the Parliament of the

Commonwealth? I direct that that question be

argued before the Full Court on the statement of

Langer 17 11/3/93

claim and on the basis that the allegations
contained in pars 10 and 12 of the statement of
claim are disputed, but that the allegations
contained in.the other paragraphs of the statement

of claim are not contested.

Mr Solicitor, does that seem to cover it?

MR GRIFFITH:  It does, Your Honour. As to form, it might be

convenient if we indicate that we could include the

substance of what Your Honour has ordered in a

usual question reserved form of having the first

paragraph, "The plaintiff alleges in its statement

of claim"; the second paragraph our reservation,

and then the question reserved.

HIS HONOUR: That would clearly be better.

MR GRIFFITH: Yes, well we are prepared to prepare that

docurnenc.

HIS HONOUR: If you could submit it to Mr Langer. If there

are any problems the matter can come before me.

MR GRIFFITH:  We would hope to get it before Your Honours an

agreed document.

HIS HONOUR:  Mr Langer, have you followed what has just been

said?

MR LANGER:  Yes, and I presume there is absolutely no way I

can get the Full Court to look at it before

Saturday. Is that correct?

HIS HONOUR:	Yes.
MR LANGER:	If I put in an appeal notice, that is not going

to make any difference?

HIS HONOUR:  The Full Court is sitting in Melbourne on leave matters tomorrow, as well as in Canberra by video

tape from Brisbane on leave matters. If I thought

circumstances of this case, there -

there was any reasonable prospect that the Full

MR LANGER:	So, I have done what I could and that is it?
HIS HONOUR:	Yes, I do not think there is anything further

you can do beyond arguing the invalidity when the

matter finally comes.

MR LANGER:	Yes.
HIS HONOUR:	Reserve costs?

MR GRIFFITH: Yes, Your Honour.

Langer 18 11/3/93

HIS HONOUR:	Are you happy with that?
MR LANGER:	Just give the costs to them would make me even

happier.

HIS HONOUR:	Pardon?
MR LANGER:	Make them pay the costs.
HIS HONOUR:	If you have got any grounds for that argument I

will entertain it.

MR LANGER:  Their conduct. I mean, it was necessary to come

here and, regardless of the final outcome, they

should pay for what has happened so far.

HIS HONOUR:  I reserve the costs of today's application, and

now adjourn.

AT 11.00 AM THE MATTER WAS ADJOURNED SINE DIE

Langer 19 11/3/93