source:

http://pandora.nla.gov.au/nph-arch/2000/Z2000-Oct-26/http://law.anu.edu

INTRODUCTION 

The case of Langer v The Commonwealth, ¹ is important, for it reveals much about the understanding of "democracy" in Australia, including fundamental conflicts as to what is essential, and what is peripheral to our constitutional system of "representative democracy". The Langer case raises questions about what amounts to a democratic "choice" in an election. Is "choice" merely a matter of being able to select from candidates offered, or does it involve the representation of the will of the people? Is it democratic to compel a voter to lie ² by requiring the voter to give preferences to candidates he or she rejects, or must voters have a right to vote in an informal manner if they do not wish to express a preference for certain candidates? Is the choice to vote informally a genuine political choice, and is advocacy of such a choice protected by the constitutional guarantee of freedom of political communication? Should it be a criminal offence to advocate activity which is not only legal, but would result in a formal vote? 

These questions are, of course, profoundly political in nature, and it is not surprising that they are largely dealt with in a superficial manner by the High Court, leaving Australians none the wiser as to the fundamental principles which underlie their Constitution. This note will explain and analyse how the High Court dealt with these issues. 

BACKGROUND 

Mr Albert Langer had been campaigning for some years for people to vote in a fashion that does not give preferences to the major political parties. Part of his campaign was to alert people to the fact that s 270 of the Commonwealth Electoral Act 1918 deems ballots for the House of Representatives to be formal even when a preference number is repeated, and one box is left empty. If there are three or more candidates, and the number 1 is placed opposite one candidate, the following preferences will be counted as long as there is a consecutive order and a number is not repeated. ³ Once a number is repeated or the sequence broken, the ballot is deemed to be "exhausted", and preferences are no longer allocated in relation to it. Accordingly, one could ensure that one's preference does not elect a candidate from a major party, by giving one's first, second and third preferences to members of small parties or independents, and by placing the major parties equal last. ⁴  

As far back as 1987, the Electoral Commission sought an injunction against Mr Langer to prevent him from publicising his views during the federal election campaign. Justice Vincent held that it was not an offence, according to the law at that time, to conduct a campaign to encourage people to vote in an informal manner, ⁵ nor was it an offence to explain to voters their right to vote in accordance with s 270. ⁶ However, Vincent J held that it was an offence to encourage people not to vote at all, contrary to s 245 of the Commonwealth Electoral Act 1918, ⁷ and it was also an offence under s 329 to publish a representation of a ballot paper that is likely to induce an elector to mark his or her vote otherwise than in accordance with the directions on the ballot paper. Accordingly, an injunction was granted on this basis. 

The number of exhausted votes recorded in the 1987 election was 2082, but this jumped significantly to 18,765 exhausted votes in the 1990 election, as the campaign to alert people of the method of voting under s 270(2) continued. The report of the Joint Standing Committee on Electoral Matters into the running of the 1990 federal election expressed concern that this rise in the number of exhausted votes meant that the safety net provisions of s 270 were being used to implement a de facto form of optional preferential voting. ⁸ The Committee recommended that the Commonwealth Electoral Act 1918 be amended to include a general prohibition on the distribution of any material which discourages electors from numbering their ballot papers consecutively and fully. ⁹ 

The Government accepted the Committee's recommendation, and introduced the Electoral and Referendum Bill 1992, which included a provision inserting s 329A in the Commonwealth Electoral Act 1918. Section 329A provides: 

(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. 

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

In the second reading speech for the Bill, it was acknowledged that this provision was a response to the report of the Joint Standing Committee on Electoral Matters. ¹⁰ Although debate concentrated on other provisions of the Bill, concern was raised by Senator Parer that the proposed s 329A would impose a penalty on people who encourage others to vote in a formal manner, because a vote could still be formal under s 270(2), even if it did not comply with s 240. ¹¹ Senator Bolkus responded by saying that s 270(2) is intended to ensure that people do not unintentionally vote informally. He asserted, however, that the Act does not provide for a system of optional preferential voting, and that the amendment was aimed at preventing people from campaigning "to frustrate the will of the Parliament by advocating what is in essence an optional preferential vote". ¹² The amendment was passed by the Parliament and came into force on 24 December 1992. 

In the week prior to the 1993 federal election, Mr Langer sought a declaration from the High Court that s 329A was constitutionally invalid. The Court declined to grant the declaration at that time, but referred the matter to the Full Court for hearing at a later date. ¹³ Mr Langer's challenge was heard in the High Court on 4 October 1995. He argued the case himself, without the assistance of counsel. The High Court handed down its order in the case of Langer v The Commonwealth on 7 February 1996, upholding the validity of s 329A, but did not, at that time, present its reasons for judgment. The following day, 8 February 1996, Justice Beach, of the Supreme Court of Victoria, ¹⁴ issued an injunction, upon the application of the Australian Electoral Commission. The injunction prohibited Mr Langer, his servants and agents, from publishing or distributing material which encouraged a form of voting contrary to s 240 of the Commonwealth Electoral Act 1918. Mr Langer continued to distribute his leaflets and on 14 February 1996 he was held in contempt of court by Justice Beach and sentenced to prison until 30 April 1996. 

The High Court handed down its reasons for judgment in the Langer case on 20 February 1996. The majority, comprising Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ, held that s 329A was constitutionally valid as it did not breach the principles of representative democracy which flow from s 24 of the Constitution, nor did it infringe the implied right to freedom of political communication. Justice Dawson dissented. ¹⁵ Having lost on this challenge, Mr Langer then appealed against the Victorian injunction to the Full Court of the Federal Court ¹⁶ on 28 February 1996, but the Court dismissed his appeal on 1 March 1996. ¹⁷ The Full Court later considered an appeal against his sentence for contempt, and reduced it to three weeks. ¹⁸ Mr Langer was released from prison on 7 March 1996. 

The publicity given to Mr Langer's campaign (or more probably the publicity given to the injunction and his imprisonment) appears to have contributed to the significant rise in the number of exhausted votes in the federal election of 2 March 1996. This figure rose from 7,325 exhausted votes in the 1993 election, to the much higher figure of 48,979 exhausted votes in the 1996 federal election. ¹⁹  

THE AMBIGUITY OF SECTION 240 

Mr Langer argued that in cases where a person did not wish to record a preference in favour of a candidate, or had no preference as to which of a number of candidates should be preferred over the other, the voter should be able to allocate them the same preference. Hence, the voter may indicate his or her 1st, 2nd and 3rd preference, but then rank all the rest of the candidates as 4 on the ballot paper. 

Section 240 of the Commonwealth Electoral Act provides that in a House of Representatives election, a person shall mark his or her 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. 

This provision suffers from lack of clarity. Provision (b) gives an example of the use of consecutive numbers, but states that the numbers in the squares opposite the names of the remaining candidates must be written "so as to indicate the order of the person's preference for them". What if the person has an equal preference for them? ²⁰ Can the person write 1, 2, 3, 4, 4, 4 and 4 in the squares opposite the names? The provision does not state that these numbers have to be in a sequence of consecutive order or that there may be no repetition of numbers. Despite this ambiguity, however, the Justices of the High Court appear to assume that s 240 requires the marking of numbers only in a consecutive sequence, and without repetition. ²¹  

The reason for the making of this assumption may be that other provisions concerning the validity and invalidity of ballots imply that s 240 requires all numbers to be in consecutive order, without the repetition of any number. Paragraph 268(1)(c) provides that, subject to certain exceptions, a ballot paper shall be informal if it does not indicate the voter's first preference for one candidate and "an order of preference for all the remaining candidates". It does not say that a ballot paper will be invalid unless it complies with s 240. ²² There is no express connection with s 240, except this reference to an "order of preference" for all the candidates. Once again, it is not clear whether an order of preference can contain preferences of equal value.  

This is clarified, however, by the exceptions to which paragraph 268(1)(c) is subject. One of these exceptions is sub-section 270(2), which provides that a ballot paper will not be informal by virtue of paragraph 268(1)(c) in the case where there are three or more candidates, and the ballot has the number 1 opposite the name of one candidate and numbers in the other squares. ²³ In this case, the number 1 shall be taken to indicate the voter's first preference, and where the numbers in the squares "are in a sequence of consecutive numbers commencing with the number 1", the voter's preferences will be counted in that order of sequence. However, s 270(3) provides that if any number in that sequence of consecutive numbers is repeated, it shall be disregarded. Accordingly, once a number is repeated, the consecutive sequence is broken, and the preferences are no longer distributed. 

The only place it is expressly required, therefore, that the voter's order of preference be in a "sequence of consecutive numbers commencing with the number 1", without the repetition of any number, is in this exception to ballots which would otherwise be deemed invalid under s 268(1)(c), therefore implying that the repetition of a number is the reason it would otherwise have been invalid under that section, without the benefit of the exception in s 270(2). 

The ambiguity of s 240 is highlighted by the terms of the injunction which was granted by Beach J to restrain Mr Langer. It provided that he be restrained from publishing or distributing anything with the intention of encouraging persons to vote otherwise than by writing the number 1 in a square opposite the name a candidate and: 

writing the numbers 2, 3, 4 (and so on as the case requires) consecutively without writing any particular number more than once, in the squares opposite the names of all the remaining candidates so as to indicate the order of the person's preference for them. ²⁴ 

The injunction deviated from the words of s 240 to make the terms of the injunction clear. It would be useful if a similar clarification were to be made to s 240. It should expressly state that a voter is required to place the number 1 in a single box, and fill all the other boxes with consecutive numbers, without the repetition of any number. 

DOES THE ACT CONTAIN ALTERNATIVE METHODS OF VOTING? 

Chief Justice Brennan noted in his judgment that if the Act authorised various alternative manners of voting, "[T]here would be much to be said for the view that no law could preclude a person from encouraging voters to vote by an alternative method". ²⁵ He did not consider that the qualifications in ss 268 and 270 constitute alternative forms of voting. He concluded that they "merely save from invalidity some ballot papers which are not filled in in accordance with the method which the Act prescribes". ²⁶  

The difficulty with this conclusion derives from the peculiar manner in which the legislation is constructed. Under the Act there are four different methods by which one can fill out the ballot paper. 

Method A - Number all boxes in a sequence of consecutive numbers, commencing with the number 1, and without the repetition of any number. This is the method which it appears (despite the absence of clear language) that s 240 requires voters to use. 

Method B - Number all boxes except one in a sequence of consecutive numbers, commencing with the number 1, and without the repetition of any number.  

Method C - Number all boxes (or all except one) in a sequence of consecutive numbers, commencing with the number one, but repeating one or more numbers within that sequence.  

Method D - Any other form of filling out the ballot, such as failing to number more than one box, failing to give a first preference, and failing to give an order of preference in consecutive numbers. This is deemed to be an informal vote under s 268. 

Method A is the method which voters are instructed to use by s 240 of the Act; however, the section does not state that all ballots filled out in this manner are formal, and ballots filled out in any other manner are informal. On the contrary, a ballot paper filled out in accordance with s 240 may still be informal because the ballot paper is not marked with the initials of a polling officer ²⁷ or because it is marked in a way that the voter can be identified. ²⁸ Instead, all ballot papers are treated as formal unless they fall within the specific categories in s 268 which are declared to be "informal". 

Although s 268(1)(c) declares certain types of ballot papers to be "informal", including those which do "not indicate the voter's first preference for 1 candidate and an order of preference for all remaining candidates", ²⁹ it is made expressly subject to s 270(2) (Method C) and the proviso concerning cases where one square is left blank (Method B). Accordingly, Methods B and C may legitimately be treated as alternative forms of voting. A ballot completed in accordance with Method A is only formal if it is not declared to be "informal" by one of the provisions of s 268. In exactly the same way, a ballot completed in accordance with Methods B or C is formal as long as it is not declared to be "informal" by s 268. 

Justice Dawson considered that ss 240, 268 and 270 must be read together. On this basis, he concluded that "it is clear that the Act allows more than one method of casting a formal vote". ³⁰ His Honour added that, in his view, it is an "incorrect construction of the Act to say that s 240 alone prescribes the manner in which a formal vote may be cast". ³¹ Accordingly, he considered that the Act confers a right "to engage in optional or selective preferential voting in a House of Representatives election", ³² and "permits voters intentionally to record a preference for only one or some of the candidates standing for election by completing their ballot paper" in accordance with ss 268(1)(c) or 270(2). ³³ His Honour described this as an "alternative method of casting a formal vote" which voters "are entitled to choose under the Act". ³⁴ 

Justices Toohey and Gaudron did not specifically address the question of whether ss 268(1)(c) and 270(2) provide an "alternative method" of voting, although they considered that s 240 "must be read in the context of the Act as a whole, including s 270(2)" and that it is therefore not correct to say that s 240 "obliges" a voter to express a preference for a candidate against whom he or she wishes to vote. ³⁵ This point of view appears closer to that of Dawson J than to that of the other members of the Court. 

Justice McHugh disagreed with this view. He considered that s 240 does "oblige" voters to vote in the manner prescribed. He concluded that the "saving provisions" of ss 268 and 270 "do not affect the Act's intention that voters are to follow the directions contained" in s 240. ³⁶ Similarly, Justice Gummow considered that ss 268(1)(c) and 270(2) are merely "ancillary" provisions which "do not evince any legislative intent to make optional or selective preferential voting available as an alternative to full preferential voting". ³⁷ Accordingly, the Court appears to be split on whether a voter is obliged to vote in the manner prescribed by s 240, or whether s 270(2) is a legitimate alternative method which a voter is entitled to use. 

THE CONSTITUTIONAL POWER TO LEGISLATE ON ELECTORAL MATTERS 

The legislative power to prescribe the method of choosing members of the House of Representatives is derived from ss 31 and 51(xxxvi) of the Constitution. ³⁸ Section 31 states that until the Commonwealth Parliament otherwise provides, the laws in force in relation to the election of the more numerous House of the State Parliaments shall apply to the election in that State of members of the House of Representatives. Section 51(xxxvi) gives the Commonwealth Parliament the power to make laws with respect to matters for which the Constitution makes provision, "until the Parliament otherwise provides". Chief Justice Brennan noted that these are "plenary powers", and referred to a statement by Isaacs J that the "limits of plenary power end only with the subject matter in respect of which it may be exercised". ³⁹ 

It should be noted, however, that both these "plenary" powers are expressly made "subject to this Constitution". In previous cases, the High Court has held that provisions which are expressly "subject to this Constitution", are therefore subject not only to other express provisions of the Constitution, but also to other implications drawn from the Constitution, such as the separation of powers, ⁴⁰ federalism ⁴¹ and freedom of political communication. ⁴² In Australian Capital Television v The Commonwealth, the High Court held that the plenary power under s 51(v) of the Constitution was "subject to this Constitution", including the implication of freedom of political communication which is derived from the principles of representative democracy which underlie ss 7 and 24 of the Constitution. ⁴³ It would be surprising indeed if the same principles of representative democracy did not affect or limit the Commonwealth Parliament's power to enact laws governing elections. 

The Court, in Langer, took a narrow view of the extent to which principles of representative democracy can limit the Parliament's powers to enact electoral laws. Mr Langer's argument was essentially that it is contrary to representative democracy for a voter to be compelled to allocate preferences to candidates for whom the voter has no preference or against whom the voter wishes to vote. This argument involves two separate but related elements. The first is "compulsion": the extent to which a voter is compelled to vote in a formal manner which allocates preferences to all candidates. The second is "choice": the extent to which members of the House of Representatives are truly "chosen by the people" according to s 24 of the Constitution, if that choice does not adequately represent the will of the voters. These two elements are discussed below. 

Is it compulsory to vote in a formal manner? 

Although voting is frequently described as "compulsory", ⁴⁴ it had generally been assumed that the extent of the compulsory act was attending at a polling booth ⁴⁵ and depositing one's ballot paper. ⁴⁶ The ballot paper could be unmarked or otherwise informal, as the voter wished. This assumed freedom to vote informally has been used by advocates of compulsory voting to combat the argument that the compulsion is "undemocratic". The position was summarised in the IPA Review as follows: 

Critics of compulsory voting argue that it deprives citizens of the right not to cast a vote. This is untrue. The elector is compelled merely to collect a ballot paper; he is entitled to leave it blank. ⁴⁷ 

The Commonwealth Electoral Act 1918 is once again unclear on this point. Sub-section 245(1) provides that it shall be the "duty" of every elector "to vote at each election". Sub-section 245(15) provides that every elector who "fails to vote" at an election without a valid and sufficient reason, is guilty of an offence. It is clear from this section that electors have both a "duty" and a legal obligation "to vote" at an election. However, it is not clear if one "fails to vote" by reason of casting a blank ballot or an otherwise informal ballot. ⁴⁸ 

Some indication of the meaning of the verb "to vote" is given by s 240 of the Act which provides that a person "shall mark his or her vote on the ballot paper", and s 268(1)(c) of the Act, which provides that a "ballot-paper" will be informal if "it has no vote indicated on it". This appears to imply that the "vote" is the actual markings made on the ballot paper, and that the action of "voting" is the act of making those marks rather than the mere act of depositing the ballot paper. If this were so, then those who are crossed off the roll when they receive their ballot-paper, and who immediately deposit it in the ballot box without marking it, would be committing an offence under s 245. ⁴⁹ Further, if one's ballot-paper were informal, it is arguable that there is no "vote", and therefore the voter has "failed to vote", in breach of s 245(15). ⁵⁰ 

Authorities on this question are mixed. In some cases judges have assumed that it is not illegal to vote informally. Justice Crockett, in Lubcke v Little, ⁵¹ considered that all that was necessary "to vote" is to obtain a ballot paper. He observed that to record an informal vote is not an offence. ⁵² Justice Hogarth came to much the same view in Douglass v Ninnes, ⁵³ where he concluded that the equivalent South Australian provision is to be construed so that voters do not "fail to vote" as long as they have "duly obtained their voting papers and, possibly, placed them in the appropriate ballot box". ⁵⁴ A slightly different position was taken by Barwick CJ in Faderson v Bridger. He commented: "Of course there is no offence committed by not marking the ballot paper in such a fashion that the elector's vote is in law a valid vote." ⁵⁵ His Honour did, however, appear to conclude that the actual marking of the ballot paper and depositing of it in the ballot box are necessary elements of "voting" for the purposes of the Act. ⁵⁶ Chief Justice Blackburn, of the Australian Capital Territory Supreme Court, challenged such views in O'Brien v Warden, ⁵⁷ and argued that "marking the ballot paper in a way that is not informal is part of what the Act requires the elector to do, namely to vote", and that a failure to so vote is an offence against the Act. ⁵⁸ 

The views of commentators are also mixed. On the one hand, some commentators have considered that it is not illegal to lodge a blank or informal ballot paper. Professor Joan Rydon observed: 

Attempts to clarify the law by specifying that it is attendance at the polls which is compulsory have all failed. Officials constantly reiterate that "voting is compulsory" but "voting" is not defined. They reluctantly concede that is it not illegal to vote informally or return blank ballot papers, but they do their best to discourage such practices. ⁵⁹ 

On the other hand, it was asserted in a comment in the Australian Law Journal that there is a legal requirement to cast a formal vote, and that it is a breach of the compulsory voting provisions to cast a blank or otherwise informal vote. The editor stated: 

A point arises concerning the meaning of the word "vote". It is submitted that, beyond all doubt, it includes marking a ballot paper for the election of a member of the House of Representatives with all the preferential numbers covering each candidate on the ballot paper as provided by s. 124(a) of the Act. ⁶⁰ 

The failure to prosecute people under s 245 for voting "informally" indicates little, because the "secret ballot" system prevents any check from being made as to whether a person has marked the ballot paper, or whether it has been marked in accordance with s 240. ⁶¹ Accordingly, the only way such prosecutions could proceed would be on the basis of confessional evidence, or where a person takes the ballot paper directly from the poll clerk to the ballot box without proceeding to the polling booths or marking it in any way. It does not appear, from the reported cases, that prosecutions on this basis have occurred. 

The question of whether it is an offence to cast an informal ballot paper was not directly at issue in Langer. In that case Mr Langer had only advocated the casting of formal votes pursuant to s 270(2), albeit contrary to s 240. As McHugh J noted, a breach of s 240 "is not made punishable by fine or imprisonment". He concluded that despite the use of the mandatory "shall", in s 240, the better view is that the section "does not impose a legally enforceable duty on the voter". ⁶² Justices Toohey and Gaudron also noted that s 240 "does not operate to require a voter to fill in a ballot paper in the manner described in that section or indeed at all". They considered that the section is merely part of a "legislative scheme directed at the question of whether and, if so, how a ballot paper will be counted in an election for the House of Representatives". ⁶³ However, the issue of compulsory voting does arise in relation to the interpretation of s 24 of the Constitution and the application of the principles of representative democracy. 

Although Mr Langer did not challenge compulsory voting "in the sense of compelling a voter to attend a polling booth and place a ballot paper in the ballot box", ⁶⁴ he did challenge the validity of a legal obligation to record a preference against all candidates, including those which the voter wished to vote against. If a person has a legal right to vote informally and is therefore not compelled to vote for a candidate whom he or she does not wish to elect, then the argument that laws such as s 240, which regulate the formality of votes, are in breach of the principles of representative democracy, is weak. If, however, a person is under a legal obligation to vote in a formal manner by allocating preferences to all candidates, and if that obligation is backed by criminal sanctions, the argument is much stronger that such a law is in breach of the principles of representative democracy derived from s 24 of the Constitution. Further, if it is only pursuant to s 270(2) that an elector can legally avoid giving preferences to candidates whom the elector rejects, there is a stronger argument that laws prohibiting the encouragement of people to vote in this manner are in breach of the implied freedom of political communication. 

Justice McHugh was the only Justice who dealt with the issue of compulsory voting in any detail. He dismissed Mr Langer's argument by noting that "this court has held that compulsory voting in federal elections is within the power of the parliament", ⁶⁵ and that "the plaintiff refused to challenge the compulsory voting system". This conclusion, however, misses the distinction between a system of "compulsory voting", where a person is only required to collect and deposit the ballot paper in the polling booth, and one where a person is compelled to allocate preferences to all candidates. Mr Langer was challenging the second form of compulsory voting, and the High Court in Judd v McKeon, ⁶⁶ was only specifically addressing the first form of compulsory voting, where a person had not attended the polling booth and lodged his ballot. ⁶⁷ Accordingly, Langer did not settle the question of whether it is an offence to vote in an informal manner, nor did it determine whether such legislation would be constitutionally valid.  

If one were to accept the view that the system of representative democracy enshrined in the Constitution allows the Parliament to legislate to require a voter to vote in a formal manner, the Parliament would only need to repeal the secret ballot provisions and then each ballot paper could be inspected by a police officer before it was lodged, and those who did not allocate preferences in a formal manner to all candidates could be punished for committing a criminal offence. It would be harder to argue that the secrecy of a ballot is protected by the constitutional principle of representative democracy ⁶⁸ when the freedom to vote informally is not so protected. Such a system, however, would seem a far cry from "representative democracy", and indicates the potential (albeit remote) dangers of decisions such as Langer. 

Choice, compulsory voting and democracy 

Section 24 of the Constitution provides that the members of the House of Representatives are to be "directly chosen by the people of the Commonwealth". It does not refer to elections and electors. The use of elections is implied by other sections, such as ss 25, 30, 31, 32, 33, 34, 41 and 47. 

The Chief Justice referred to the earlier case of Judd v McKeon, ⁶⁹ which was an appeal from a conviction for failing to attend a polling booth and vote in a federal election. The appellant argued that the law breached the requirement of "choice" in ss 7 and 24 of the Constitution. Chief Justice Knox, Gavan Duffy and Starke JJ took a limited view of the meaning of "choice" in the context of those constitutional provisions. They stated: 

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. As an illustration of the meaning of the corresponding noun "choice" the Oxford Dictionary quotes the phrase "I have given thee thy choice of the manner in which thou wilt die", and this use of the word seems to exclude the idea that a right of choice can only be said to be given when one or other of the alternatives submitted is desired by the person who is to exercise the right, or, in other words, to choose between them. ⁷⁰ 

In Langer, the Chief Justice pursued the same narrow view of choice, observing: "Provided the prescribed method of voting permits a free choice among the candidates for election, it is within the legislative power of the parliament." ⁷¹ If this view were to be taken to its extreme, a political party which controlled the Senate and the House of Representatives could enact legislation providing that the only people eligible as candidates for election are members of that party. The electors would still be able to chose freely amongst members of that party who are candidates in the election, but no one representing other political views would be permitted to stand for election. This system is not uncommon throughout the world, but few would describe as "representative democracies" those countries where only members of the ruling party may stand for election. To the extent that principles of representative democracy can be drawn from ss 7 and 24 of the Constitution, then something more than mere choice between candidates must be involved. 

This conclusion is supported by the judgments of the majority of the High Court in Australian Capital Television Pty Ltd v The Commonwealth. ⁷² There is was held that freedom of political communication was essential to allow electors to make a free and informed choice as to who they wished to elect to Parliament. There would be no need to make an "informed" choice, unless what was at issue was the actual "representation" of the views of the electors, and their "desire" to be represented by that person. 

In contrast, Dawson J concluded in Langer that when the Constitution requires that a choice be made: "[T]he choice involved must obviously be a genuine, or informed, choice which requires access on the part of the voter to the available alternatives in the making of the choice." ⁷³ Justices Toohey and Gaudron also took a broader view and concluded that "chosen by the people" must be taken as "primarily mandating a democratic electoral system" and as bearing on the features of that system only to the extent that they may prevent the Senate or the House of Representatives from being composed of persons "chosen by the people". ⁷⁴ Their Honours considered that a full preferential system of voting results in Houses "chosen by the people". 

However, Toohey and Gaudron JJ did seem to consider that the actual "intention" of the elector is essential to the democratic process. They noted in relation to "deemed" preferences which are given where one box is left empty, that "the democratic process is enhanced if a voter's actual intention is capable of ascertainment from the ballot paper" rather than an intention which he or she is deemed to have expressed. ⁷⁵ It seems extraordinary that the democratic process is enhanced by the voter's "actual intention" in voting when this "intention" is no more than that resulting from compulsion to give preferences to all candidates, and that the voter's actual intention in not giving any preference to a candidate whom the voter rejects is simultaneously denied in the name of democracy. 

Justice McHugh commenced by giving a narrow view of the meaning of "chosen by the people": 

Members of parliament may be "chosen by the people" even though "the people" dislike voting for them. Section 24 of the Constitution is concerned with choices from the list of candidates who offer themselves for election, not the wishes of individual electors. ⁷⁶ 

He considered that the purpose of the words "chosen by the people" in s 24 is to distinguish direct election from appointment to office or election by an electoral college. ⁷⁷ This is in stark contrast to the view he expressed in Australian Capital Television Pty Ltd v The Commonwealth, where he stated: 

It is not to be supposed ... that, in conferring the right to choose their representatives by voting at periodic elections, the Constitution intended to confer on the people of Australia no more than the right to mark a ballot paper with a number, a cross or a tick, as the case may be. The "share in the government which the constitution ensures" would be but a pious aspiration unless ss. 7 and 24 carried with them more than the right to cast a vote. The guarantees embodied in ss. 7 and 24 could not be satisfied by the Parliament requiring the people to select their representatives from a list of names drawn up by government officers. ⁷⁸ 

At the time of Australian Capital Television, the views and wishes of the voters were essential to their representation, hence the need for them to have free access to political information, so that they could "make an effective and responsible choice in determining whether or not they should vote for a particular candidate or the party which that person represents". By the time of Langer, however, McHugh J had concluded that it was not relevant whether or not a voter "wishes to give a candidate a preference", as the electoral system can validly require the voter to do so. ⁷⁹  

However, in Langer, although Justice McHugh construed the notion of "choice" narrowly, he took a broader view of the notion of "the people" who must exercise this choice. He observed that it would now be impossible to find that the House of Representatives had been "chosen by the people" if women were excluded from voting, or if property qualifications were required before one could vote. ⁸⁰ His Honour concluded: 

The words "chosen by the people" are therefore words of inexact application, dependent upon matters of fact and degree and always involving a value judgment .... Whether or not a member has been "chosen by the people" depends on a judgment, based on the common understanding of the time, as to whether the people as a class have elected the member. It does not depend on the concrete wishes or desires of individual electors. ⁸¹ 

Justice Gummow concluded that s 24 does not confer a personal right on an elector to vote for the candidate of that elector's choice or to decide not to state a preference for a candidate whom the elector does not wish to be elected. ⁸² 

One can discern from all of the above that for the House of Representatives to be "chosen by the people" there must, at the very least, be a free choice between candidates. This minimum standard may be expanded upon by requiring a "genuine choice", implying that the choice should not be manipulated by unduly limiting the eligibility of candidates, such as requiring them to be members of a certain party only. Further, there may be an additional requirement that a voter be able to make an "informed" choice, without onerous restrictions on the information the voter can receive about candidates or policies. In addition, one may have to take into account the "common understanding of the time" about whether a member has been "chosen by the people".  

Does the "choice" involved in s 24 involve the "choice" not to make a choice? It appears from the discussion above that "chosen by the people" has been interpreted in a manner which does not give the people a right "not to choose". Nevertheless, as discussed above, a number of judges have concluded that, despite the compulsion "to vote" ⁸³ and instructions on the manner in which one must vote, ⁸⁴ voters may still choose to cast an informal ballot. Whether such a choice is essential to the principles of representative democracy has not been made clear. Justice Vincent drew a distinction between the type of choices which are integral to a system of compulsory voting. He observed: 

The system of compulsory voting requires that electors record votes at each election. It is, of course, integral to the operation of that system that all electors make choices. It is not integral that they must choose between the candidates or that, contrary to the dictates of their consciences, they must vote for persons who they may regard as being totally unacceptable to fill the offices for which they present themselves. ⁸⁵ 

This distinction, however, was not recognised by the High Court in Langer. 

Even if the choice to be made under s 24 of the Constitution is confined to a right to choose between candidates, does the "choice" involve the ability to choose the formal method of voting which best represents the views of the elector? Justice Dawson considered that the decision to vote in a manner which complies with s 268 or s 270 is a genuine political choice, and that essential to this "choice" is information about the methods which can be employed for effecting it. ⁸⁶ Justice Vincent, in the 1987 injunction against Mr Langer, also considered that "if a valid vote may be cast in accordance with [s 270], an elector may choose to cast such a vote", and that Mr Langer had every right to inform voters of this option. ⁸⁷ 

In the High Court, however, the majority considered that voting by the methods set out in ss 268 and 270 is somehow a "less democratic" form of voting, because in the case of s 268, the empty box is "deemed" to be a person's last preference, and in the case of s 270, the person's preferences are not distributed past the point of the repeated number. Chief Justice Brennan described these forms of voting as resulting in "a diminished expression of the elector's preferences". ⁸⁸ Justices Toohey and Gaudron considered that a "voter does not participate either fully or equally with those who indicate an order of preference for all candidates if his or her ballot paper is filled in in such a way that it is earlier exhausted". ⁸⁹ Justice McHugh considered that failure to complete a ballot paper in compliance with s 240 would undermine the effectiveness of the election, ⁹⁰ as did Gummow J. ⁹¹ It is argued that the law is intended to protect the democratic system by preventing people from encouraging others to vote in this manner.  

The response to this argument is that it depends on one's view of democracy. Is "democracy" the distribution of preferences down to a person's last preference, or does it actually involve the choice of the voters? If it is a voter's choice not to give his or her preference to either of two candidates whom he or she equally dislikes, then surely it is more "democratic" to fulfil the wishes of the voter by not distributing that person's preference, rather than forcing it to be distributed to, and assist in the election of, a person whom the voter does not want to be elected? Rather than the "diminished expression of the elector's preferences", this could be characterised as a full and accurate expression of the elector's preferences. 

As Professor Rydon has pointed out, the current electoral system requires a voter who has no preference between candidates, or no opinion on a referendum question, to lie on the ballot paper, and assert that he or she has preferences which he or she does not hold. ⁹² Justice Higgins rejected this compulsion to lie in his dissenting judgment in Judd v McKeon. He stated: 

It is to be presumed in favour of Parliament, unless it clearly say the contrary, that the Act of Parliament does not compel a man to say that he has a preference when he has none - does not compel him to lie .... What if John the Baptist were asked which he preferred - Herod or Herodias? In the position which I suggest, he could not say that one was blacker than the other, for to him they appear to be both as black as pitch. ⁹³ 

Chief Justice Brennan, however, did not consider it relevant that a ballot paper marked otherwise than in accordance with s 240 "would better express the voter's political opinion". ⁹⁴ Equally, McHugh J stated that "[w]hether or not the voter wishes to give a candidate a preference or a vote is irrelevant" for the purposes of s 240. ⁹⁵ Accordingly, a vote which is a lie and does not represent the view of the elector is treated as being of greater importance to the system of representative democracy, than one which truly represents a person's political opinion, as long as the elector may freely choose between those candidates standing for election. This appears to be an unsatisfactory view of the meaning of "representative democracy". 

FREEDOM OF POLITICAL COMMUNICATION 

Although Mr Langer apparently did not argue ⁹⁶ that s 329A of the Commonwealth Electoral Act 1918 was invalid because it breached the implied freedom of political discussion, recognised by the High Court in previous cases, ⁹⁷ this issue was still dealt with by all members of the Court. The first question which arises in considering whether s 329A breaches the implied guarantee of freedom of political communication is whether it limits or proscribes certain types of political communication. In this case, Mr Langer was advocating that a method of formal voting be used so that preferences do not flow to the major parties. This is as close to the heart of political communication as one can get. It is communication advocating a certain political choice, and informing voters of the legal means for achieving that result. 

Section 329A made it an offence publish these views with the intention of encouraging people to vote in this manner. Clearly, it limits a fundamental type of political communication. Moreover, the limitation is directed not at the means of expressing this opinion (such as a limitation on handing out leaflets in public places) or the timing of the communication (such as television advertising during certain hours), but rather at the actual substance of the communication. Section 329A prohibits people from advocating a form of voting which is formal and therefore counted in the election. In Australian Capital Television Pty Ltd v The Commonwealth, Mason CJ and McHugh J held that if the restriction is on the idea or information contained in the communication, rather than on the manner in which the communication can take place, there must be a "compelling" reason for the Court to uphold the validity of the restriction. ⁹⁸ 

How "compelling" is the reason offered by the majority in this case? While Brennan CJ's judgment implies that he does consider that s 329A has impaired freedom of political communication, in this particular case he considered that the impairment is "reasonably capable of being regarded as appropriate and adapted to the achieving of a legitimate legislative purpose and the impairment is merely incidental to the achievement of that purpose". ⁹⁹ He concluded that this "restriction on freedom of speech" was not imposed "with a view to repressing freedom of political discussion" but rather as "an incident to the protection of the s 240 method of voting". ¹⁰⁰ 

The Chief Justice concluded that as the Parliament has the power to prescribe a method of freely choosing members of the House of Representatives, such as that contained in s 240, it has the power to enact a law such as s 329A which is "appropriate and adapted to prevent the subversion of that method". ¹⁰¹ He did not consider that the "saving provisions" detracted from the power to enact s 329A. 

Justices Toohey and Gaudron also appeared to consider s 329A to be a restriction on freedom of political communication, but considered that it was a curtailment that is "reasonably capable of being viewed as appropriate and adapted to furthering or enhancing the democratic process". ¹⁰² Their Honours noted that the purpose of s 329A is not to prevent electors from being encouraged to vote informally, but rather "to limit the possibility of voters deliberately taking advantage of the provisos to s 268(1)(c) or of the provisions of s 270(2) so as to express a preference for some only of the candidates". Justice McHugh also recognised that s 329A "prevents political discussion or advocacy" but that this occurs only to prevent the encouragement of a breach of "lawful statutory directions that are fundamental to a system of compulsory preference voting". ¹⁰³ He considered that the object of s 329A is a "desirable, if not essential, protection of the preferential system of voting". ¹⁰⁴ 

Justice Gummow concluded that the implied right to freedom of political communication did not apply at all in this case because the implication only operates in aid of representative government, and does not "facilitate or protect that which is intended to weaken or deplete an essential component of the system of representative government". ¹⁰⁵ Justice Dawson, on the other hand, did not consider that s 329A was appropriate and adapted to fulfil a legitimate legislative purpose. This was because the law acts to prevent or discourage people from imparting to voters information about how their vote may be validly cast. ¹⁰⁶ This would undermine the genuine and informed choice which is required by s 24 of the Constitution. ¹⁰⁷ Although it was not necessary for him to decide the point, as he had found s 329A to be invalid on the above ground, Dawson J noted that upon the reasoning of the majority in previous cases, freedom of political communication would be breached by a law such as s 329A which "seeks to prevent the encouragement of voters to cast their votes in a form which is open to them". ¹⁰⁸ He concluded that such a law would do nothing to aid the proper conduct of elections and support democracy. 

It appears from the arguments of the majority in this case that the limitation on freedom of political communication in s 329A is acceptable because it is intended to support and protect the democratic system. This was the same argument that the Commonwealth unsuccessfully used in Australian Capital Television Pty Ltd v The Commonwealth. ¹⁰⁹ In that case it was argued that the restrictions on political advertising were intended to "safeguard the integrity of the political process by reducing pressure on parties and candidates to raise substantial sums of money, thus lessening the risk of corruption and undue influence." ¹¹⁰ Chief Justice Mason warned that it is necessary to keep in perspective the importance of perceived threats to democracy in comparison with the detriment to democracy arising from restricting political communication. He noted: 

All too often attempts to restrict the freedom in the name of some imagined necessity have tended to stifle public discussion and criticism of government. The Court should be astute not to accept at face value claims by the legislature and the Executive that freedom of communication will, unless curtailed, bring about corruption and distortion of the political process. ¹¹¹ 

Looking at the matter "in perspective", what harm arises if people deliberately cast valid votes in accordance with s 270? The only consequence is that people who make the political choice not to vote in favour of certain candidates will not have their later preferences distributed to elect those candidates which they unequivocally reject. Such a result would seem to be consonant with notions of democracy rather than likely to undermine it. It is difficult to characterise this as a "compelling reason" to enact a criminal provision which prohibits people from publicly advocating voting in a certain valid manner. ¹¹² 

The difference between informing and encouraging 

One of the reasons it was argued that s 329A does not breach the freedom of political communication, is that it does not prevent a person from "informing" people as to the state of the law; it only prohibits encouragement of people to exercise a valid vote in this manner. ¹¹³ Yet Justice Dawson considered that there was a very fine line between informing and encouraging, and that in some cases informing people may constitute encouragement. ¹¹⁴ He observed: 

To impart information which can be used (and information about the availability of an optional or selective preferential vote is of that kind) is necessarily to encourage its use if the recipient of the information is so inclined. A person in making that information available to an eligible voter would, in the absence of active discouragement of its use, find it wellnigh impossible to prove that it was made available without any intention that those to whom it was made available should make use of it. To put the matter shortly, to make available useful information is ordinarily to encourage its use. ¹¹⁵ 

Examples could arise where instruction books are published as to how to make a bomb or poison a person. It is arguable that merely providing the information impliedly encourages its use. In the case of Invicta Plastics Ltd v Clare, ¹¹⁶ a manufacturer of a police radar-detecting device was convicted of inciting a crime by advertising (in a magazine) the capability of the device. Although the advertising material pointed out that it was illegal to use the device specifically for detecting police radar speed traps unless the owner had a licence, it also described legal uses for the device. Nevertheless, it was held that, by advertising the existence and capability of the device, the company had incited the readers of the magazine to breach the law. Similarly, it could be argued that by merely alerting people to the existence and effects of ss 270(2) and 268(1)(c) of the Commonwealth Electoral Act 1918, a person is encouraging others to vote in this manner, contrary to s 240, and accordingly in breach of s 329A. 

This is the view which also appears to have been taken by the Australian Electoral Commission. The dissenting report in the Joint Standing Committee on Electoral Matters report on the 1993 Federal Election quotes the following warning given by the Australian Electoral Commission: 

[A]ny attempt ... to prohibit persons in any way inducing voters to mark their ballots "1,2,2,2, etc" is likely to lead to a situation where, on the face of it, it could be an offence to explain a provision of the Commonwealth Electoral Act. 

For example, if the text of s. 270 of the Act were read on radio, and the interviewer were to ask "does this mean that I can vote 1,2,2,2 and my vote will be counted as a formal vote for the candidate of my choice?" the answer has to be "yes". It is difficult to see where the law could draw the line between simply explaining section 270 and inducing voters to cast an optional preferential vote. If such a distinction were to be drawn, its enforcement would seem problematical, particularly in the heat of an election campaign. ¹¹⁷ 

CONCLUSION 

A reading of the judgments in Langer v The Commonwealth leaves one with a feeling of dissatisfaction that issues which are fundamental to our democratic system of government were not seized and addressed. The complex relationship between compulsory voting, full preferential voting, democracy and freedom of political communication is not fully explained, and in some cases seems to have been ignored. One can only hope that this is due to some deficiency in the arguments presented to the Court, and that it is not indicative of a movement within the Court to resile from the principles it expressed as recently as 1992 in Australian Capital Television Pty Ltd v The Commonwealth. ¹¹⁸ 

FOOTNOTES 

*

Lecturer in Law, University of Sydney 

1

 (1996) 134 ALR 400. 

2

 Judd v McKeon (1926) 38 CLR 380 at 388 per Higgins J. 

3

 There is a further requirement that a number be placed in each square opposite a candidate's name, or in all the squares except for one. 

4

 The leaflet distributed by Mr Langer which was the subject of the injunction and contempt proceedings, was headed "How to Vote for Neither", and advocated giving equal last preference to "Tweedledum" (who was represented by a photograph of Prime Minister Keating) and "Tweedledee" (who was represented by a photograph of Opposition Leader Howard): Langer v Australian Electoral Commission (Full Court of the Federal Court of Australia, 1 March 1996, unreported). 

5

 Australian Electoral Commission v Van Moorst and Langer (Supreme Court of Victoria, Vincent J, 2 July 1987 unreported) at 7. 

6

 Ibid at 13. 

7

 Ibid at 8. 

8

 Commonwealth Parliament Joint Standing Committee on Electoral Matters, 1990 Federal Election Report (1990) at 41-2. 

9

 Ibid at 42. 

10

 H Rep Deb 1992, Vol 187 at 3866 per Mr Price. 

11

 Sen Deb 1992, Vol 156 at 3910-1. 

12

 Ibid at 3915-6. 

13

 Commonwealth Parliament Joint Standing Committee on Electoral Matters, 1990 Federal Election Report (1990) at 105. 

14

 The Supreme Court was exercising federal jurisdiction pursuant to s 383(8) of the Commonwealth Electoral Act 1918 (Cth). 

15

 Only six members of the Court sat on this case, because the appointment of Deane J to the position of Governor-General had already been announced. 

16

 The Federal Court was given jurisdiction to hear such an appeal by s 383(9) of the Commonwealth Electoral Act 1918 (Cth). 

17

 Langer v Australian Electoral Commission (Full Court of the Federal Court of Australia, 1 March 1996, unreported). 

18

 Langer v Australian Electoral Commission (Full Court of the Federal Court of Australia, 7 March 1996, unreported). 

19

 Figure provided by the Australian Electoral Commission, with approximately 96% of the vote counted. The figure may increase when all preferences have been distributed. 

20

 Note, however, that in Langer v Australian Electoral Commission (Full Court of the Federal Court of Australia, 1 March 1996, unreported) at para 34, the Court observed that a repeated number to two or more candidates fails to express a preference between them. The Court did not accept that equal preferences could be allocated. 

21

 (1996) 134 ALR 400 at 402 per Brennan CJ, at 408 per Dawson J and at 421 per McHugh J. 

22

 See, however, the assumption to this effect by Brennan CJ (1996) 134 ALR 400 at 402. 

23

 The provision further provides that the vote will be formal even if there are not numbers in all the squares, so long as only one square is missing a number. The candidate whose name is opposite the empty square will be taken to be a person's last preference. See further exceptions in s 268. 

24

 Langer v Australian Electoral Commission (Full Court of the Federal Court of Australia, 1 March 1996, unreported) para 7 (emphasis added). Note, however, that the Court did not consider that this deviation detracted from the clear meaning of the provision: para 50. 

25

 (1996) 134 ALR 400 at 406 per Brennan CJ. 

26

 Ibid. 

27

 Commonwealth Electoral Act 1918 (Cth), s 268(1)(a). 

28

 Commonwealth Electoral Act 1918 (Cth), s 268(1)(d). 

29

 Note that no express reference is made to s 240, the wording is merely similar. 

30

 (1996) 134 ALR 400 at 408. 

31

 Ibid at 409. 

32

 Ibid. 

33

 Ibid at 411. 

34

 Ibid. 

35

 Ibid at 416. 

36

 Ibid at 421 and fn 59. 

37

 Ibid at 430. 

38

 Ibid at 403 per Brennan CJ, at 410 per Dawson J, at 422 per McHugh J and at 430 per Gummow J. 

39

 Ibid at 404, quoting from Smith v Oldham (1912) 15 CLR 355 at 363. Cf Dawson J in Langer, who concluded that the power to enact electoral laws is not a power which is "at large" and classified it as a purposive power which is limited to the implementation of s 24 of the Constitution: (1996) 134 ALR 400 at 410-11. 

40

 Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 581 per Deane J. 

41

 Queensland Electricity Commission v The Commonwealth (1985) 159 CLR 192. See also Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 at 272 per Brennan, Deane and Toohey JJ. In that case, the Court held that a plenary power which is not expressly "subject to this Constitution" (s 122) was still subject to implications derived from federalism in its interpretation, and accordingly made subject to another express provision of the Constitution (s 90). 

42

 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 69 per Deane and Toohey JJ, at 94 per Gaudron J; Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 164 per Deane J. 

43

 (1992) 177 CLR 106 at 157 per Brennan J, at 165 per Deane and Toohey JJ, at 220 per Gaudron J and at 227 and 233 per McHugh J. 

44

 Commonwealth Electoral Act 1918 (Cth): heading of s 245. 

45

 See also provisions concerning postal votes. 

46

 Professor A Coady, "Gagging Langer is an affront", Sydney Morning Herald, 16 February 1996 at 15; "Should voting be compulsory?" (1991) 44(4) IPA Review 18 at 19; C Puplick, "Should voting be compulsory? For" in R Giles (ed), For and Against: An Anthology of Public Issues in Australia (1989) 94 at 95; J G Starke QC (ed), Current Topics, "'Compulsory' voting under the Commonwealth Electoral Act 1918" (1985) 59 ALJ 130. 

47

 "Should voting be compulsory?" (1991) 44(4) IPA Review 18 at 19. 

48

 Cf the position in South Australia, where the Electoral Act 1985 (SA) provides in s 85(1) that it is the duty of every elector to record his or her vote at each election, but that this is subject so s 85(2) which provides that an elector who leaves his or her ballot paper unmarked but otherwise complies with the formalities of voting, is not in breach of the duty imposed by subsection (1). 

49

 Having been a polling clerk for several elections, it is my observation that this behaviour would occur two or three times in the course of the day in the polling booth at which I worked. No instructions were ever given to identify these people in order to prosecute them. 

50

 This interpretation is offered in J G Starke, above n 46 at 130. 

51

 [1970] VR 807. 

52

 Ibid at 811. 

53

 (1976) 14 SASR 377. 

54

 Ibid at 379. 

55

 (1971) 126 CLR 271 at 272. 

56

 Ibid. 

57

 (1981) 37 ACTR 13 at 16. 

58

 This statement was criticised by Vincent J of the Victorian Supreme Court in Australian Electoral Commission v Van Moorst and Langer (Supreme Court of Victoria, Vincent J, 2 July 1987, unreported) where he noted that Blackburn CJ had himself described his view as "heretical". Vincent J preferred the views of Barwick CJ and Crockett J. 

59

 J Rydon, "Should Voting be Compulsory? Against" in R Giles (ed), For and Against: An Anthology of Public Issues in Australia, (1989) 97 at 97. 

60

 J G Starke, above n 46 at 130. Note the reference to s 124 is under the old numbering, and the section has now been renumbered as s 240. 

61

 Some have argued that this results in a discriminatory (or dishonest) application of the law, because those who do not attend the polling booth are prosecuted, while those who attend, but do not vote formally, are not prosecuted: J G Starke, above n 46 at 131; J Rydon, above n 59 at 97. 

62

 (1996) 134 ALR 400 at 421. Cf Gummow J at 430 where he stressed the mandatory nature of the expression "shall mark" in s 240. 

63

 Ibid at 413. 

64

 Ibid at 422 per McHugh J. 

65

 Ibid at 423, referring to Judd v McKeon (1926) 38 CLR 380. 

66

 (1926) 38 CLR 380. 

67

 Note, however, that the obiter dicta in Judd v McKeon indicate that if the Court had been asked to consider the conviction of a person for voting informally, it would have been likely to uphold the power of the Commonwealth Parliament to enact such a law, as long as the voter was given a free choice between candidates. 

68

 Justice McHugh noted in McGinty v Western Australia (1996) 134 ALR 289 at 355 that the Constitution makes the Federal Parliament the final arbiter on whether there should be a secret ballot. See also Gummow J to the same effect at 385. 

69

 (1926) 38 CLR 380. 

70

 Ibid at 383, quoted in (1996) 134 ALR 400 at 404. See also reference to this passage by McHugh J at 424. 

71

 (1996) 134 ALR 400 at 405. 

72

 (1992) 177 CLR 106. 

73

 (1996) 134 ALR 400 at 410. 

74

 Ibid at 417. 

75

 Ibid at 419. 

76

 Ibid at 424. 

77

 Ibid. 

78

 (1992) 177 CLR 106 at 231. 

79

 (1996) 134 ALR 400 at 421. 

80

 Ibid at 425. See further on this point McGinty v Western Australia (1996) 134 ALR 289, where Brennan CJ at 293 considered it arguable that s 24 of the Constitution now requires universal suffrage. Toohey J at 320, Gaudron J at 337 and Gummow J at 388 all considered that universal suffrage is now required by s 24; and Dawson J at 306 considered that universal suffrage is a matter for the Parliament to determine. 

81

 (1996) 134 ALR 400 at 425. 

82

 Ibid at 430. 

83

 Commonwealth Electoral Act 1918 (Cth), s 245. 

84

 Commonwealth Electoral Act 1918 (Cth), s 240. 

85

 Australian Electoral Commission v Van Moorst and Langer, (Supreme Court of Victoria, Vincent J, 2 July 1987, unreported) at 6. 

86

 (1996) 134 ALR 400 at 411. 

87

 Australian Electoral Commission v Van Moorst and Langer, (Supreme Court of Victoria, Vincent J, 2 July 1987, unreported) at 13. Note, at that time s 329A had not been enacted. 

88

 (1996) 134 ALR 400 at 406. 

89

 Ibid at 418. 

90

 Ibid at 422. 

91

 Ibid at 431. 

92

 J Rydon, above n 56 at 97. 

93

 (1926) 38 CLR 380 at 388. See also Lubcke v Little [1970] VR 807, where Crockett J observed at 811 that perhaps the legislation "is not compelling a man 'to tell a lie'", because it is not an offence to record an informal vote. 

94

 (1996) 134 ALR 400 at 405 and see also McHugh J at 421. 

95

 Ibid at 421. 

96

 See comments to this effect by Toohey and Gaudron JJ (1996) 134 ALR 400 at 418 and McHugh J at 423. 

97

 Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211; and Cunliffe v The Commonwealth (1994) 182 CLR 272. 

98

 (1992) 177 CLR 106 at 143 per Mason CJ and at 235 per McHugh J. See also Deane and Toohey JJ at 169 where they reach a similar view, stating that a law directed at restricting communications about government will be more difficult to justify than a law with respect to some other subject whose effect on such communications is unrelated to their nature as political communications. 

99

 (1996) 134 ALR 400 at 405-6. 

100

 Ibid at 406. 

101

 Ibid at 405. 

102

 Ibid at 418. 

103

 Ibid at 423. 

104

 Ibid at 420. 

105

 Ibid at 431. 

106

 Ibid at 412. 

107

 Ibid at 411. 

108

 Ibid at 412. 

109

 (1992) 177 CLR 106. 

110

 Ibid at 144 per Mason CJ. 

111

 Ibid at 145. See also Deane and Toohey JJ at 175 and McHugh J at 238 for a conclusion that the potential for the corruption of the political process did not amount to a compelling justification for restricting freedom of political communication. 

112

 See also: Commonwealth Parliament Joint Standing Committee on Electoral Matters, 1993 Federal Election Report (1994), Dissenting report of Mr Connolly MP, Senator Minchin, Senator Tierney, and Mr Cobb MP at 162-3, where s 329A is described as "a heavy-handed response to a highly marginal phenomenon", as the "preferential voting system was hardly in jeopardy before the implementation of section 329A". The dissenting report called for the repeal of s 329A. Senator Chamarette also supported this recommendation. 

113

 (1996) 134 ALR 400 at 406 per Brennan CJ, at 415 per Toohey and Gaudron JJ and at 423 per McHugh J. 

114

 Ibid at 409. 

115

 Ibid at 411-2. 

116

 [1976] RTR 251. 

117

 Commonwealth Parliament Joint Standing Committee on Electoral Matters, 1993 Federal Election Report, (1994), Dissenting report of Mr Connolly MP, Senator Minchin, Senator Tierney, and Mr Cobb MP at 163 (emphasis in original). 

118

 (1992) 177 CLR 106. The issues which arise from the Langer case were also addressed in the case of Muldowney v South Australia (No C 22 of 1993) which was argued before the High Court in the same week as Langer. The case concerned a similar provision in South Australian legislation. When the High Court hands down its judgment in this case, further light may be spread on these issues.