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Lawyer talks about legal and constitutional issues; Albert Langer's gaol sentence.

PETER THOMPSON: With ten days to go to the election quite interesting legal and constitutional issues have emerged. We talked on Monday about Albert Langer who is in Pentridge this morning. He'll be there till late April according to the sentence handed down for contempt of court. And now the High Court has found that the Constitution doesn't guarantee a system of one-vote-one-value.

To talk about both these issues our legal commentator, the Sydney lawyer and writer, Michael Sexton is with us.

This High Court decision yesterday seems quite remarkable. It doesn't guarantee one-vote-one-value - what does it guarantee?

MICHAEL SEXTON: What the High Court said was, that at least in relation to the Western Australian Constitution, that the Federal Constitution didn't put this kind of requirement on the States, in other words, you could have discrepancies between the electorates - less persons in country electorates, which has often been true right throughout Australian political history - and they would be able to elect a member in the same way as a more populous city electorate. It may indicate, on the part of the High Court, a stepping back from some of the recent decisions, particularly the political advertising ban decision, putting implied rights into the Constitution but I think what most constitutional commentators realised was that any development of implied rights in this way in Australia was going to be a very slow, indeed, glacial process.

PETER THOMPSON: What persuaded them, do you know?

MICHAEL SEXTON: Well, it would seem that the majority of the Court took the view that you simply couldn't find this implication in the Commonwealth Constitution. This is, of course, the heart of the argument about implied rights. What can be found there? What's set down and what do you have to imply to make the document work? And, of course, many commentators took the view, even at the time of the advertising ban decision, that there was no freedom of political communication implied in the Constitution and it just simply wasn't there. So this is an ongoing debate but what it perhaps indicates is that this Court, overall, is perhaps less willing to make those kind of implications than the Court at that time, in 1992 - there has been a change in personnel, of course.

PETER THOMPSON: Now, the Albert Langer case. It is remarkable to live in a country where someone's put in gaol for distributing election material. What's the background to it?

MICHAEL SEXTON: Well, the problem is really with the legislation. There's no point in blaming Mr Justice Beach of the Victorian Supreme Court or, indeed, even the Australian Electoral Commission. What the legislation says is that, in effect, that it's an offence for someone to propose that people vote informally or even vote in a way, which is what Mr Langer was doing, that doesn't comply with the legislation, in other words, in this case, to not give a preference at the end of the day to either of the major parties. So that's what the legislation says and because he continued to distribute this material, after he'd been .. an injunction had been granted against him doing so by the Victorian Supreme Court, at the instance of the Electoral Commission, he's been put in gaol for 10 weeks, until after the Federal election.

PETER THOMPSON: Well after the Federal election.

MICHAEL SEXTON: To well after the Federal election.

PETER THOMPSON: When you say the judge in this case shouldn't be blamed, I mean, surely he would have had discretion, wouldn't he over this?

MICHAEL SEXTON: No, well, not really in this situation. It was a clear contempt and in those circumstances I think it's fair to say that his hands were tied. The problem lies in the legislation which was, of course, passed by the Federal Parliament. But the interesting thing is, really, that all this is premised upon a system of compulsory voting. If that wasn't there Mr Langer could say what he liked and it wouldn't matter how people were told to vote.

PETER THOMPSON: Why are those things tied - compulsory voting and Albert Langer's action?

MICHAEL SEXTON: If there was no system of compulsory voting it really wouldn't matter whether people were told, for example, to vote informally. As it happens, even with a system of compulsory voting there's no reason why people shouldn't be able to reject some or all of the candidates if they want to and be advised to do it and make up their minds in a democracy. But the problem is that with compulsory voting, which doesn't exist in England or the United States or in New Zealand, it simply underlines this system and it really is, in 1996, time to perhaps consider that question of whether we still need to have that.

PETER THOMPSON: I better go to gaol myself. Fifteen years ago I campaigned very hard for an informal vote in the Tasmanian referendum on the dams....

MICHAEL SEXTON: May not be too late.

PETER THOMPSON: ...and we ended up getting 35, 36 per cent of people voting informal.

MICHAEL SEXTON: There's no statutory limitations in criminal matters.

PETER THOMPSON: See you in Pentridge, Albert Langer.

Michael Sexton thank you very much.