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Tweedledum and Tweedledee 1, 2, 3, 3': the Albert Langer story.



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Contents

* Introduction

* Background

* Relevant Provisions of the Act

* What is a Formal Vote in the House of Representatives

* Implied Constitutional Rights

* Other Views and Reactions

* Conclusion

* Endnotes

* Contact Officer and copyright details

Introduction

Mr Albert Langer was recently convicted of contempt of court and sentenced

to imprisonment for approximately 10 weeks for breaching an injunction

granted to the Australian Electoral Commission (AEC) to prevent him from

distributing certain election material. Mr Langer was released after

serving approximately 3 weeks. The effects of this included the apparent

counterproductive (for the AEC) promotion of Mr Langer's proposed system of

voting and Amnesty International describing Mr Langer as Australia's first

prisoner of conscience for over 20 years.

This brief addresses the background to the situation leading to Mr Langer's

imprisonment and release, the relevant legislation, the meaning of a formal

vote, the absence of an implied Constitutional freedom to act in the manner

in which Mr Langer acted and other actions and views expressed in relation

to this matter.

Background

Mr Langer's activity regarding the method people should use when voting in

a House of Representatives election has been subject to the AEC's attention

for a number of years, including in relation to the 1987, 1990 and 1993

elections. On the day the writs were issued for the General Election, 29

January 1996, Mr Langer contacted the AEC and informed an officer that he

intended to distribute election material that advocated 'optional

preferential' voting. He subsequently faxed a copy of the material to the

AEC. The material was also published as an advertisement in The Australian

on 31 January 1996. The material encouraged people to vote for neither of

the major parties by placing the same number in the square of the candidate

for each of the major parties after first voting for other candidates as

illustrated below (Note: In the material Mr Howard and Mr Keating are

referred to as Tweedledum and Tweedledee). The method advocated by Mr

Langer for voting in the House of Representatives would result in the vote

being formal but being exhausted, as no further preferences could be

distributed, before it could flow to either major party (see below for

further information on formal voting).

The AEC subsequently sought an injunction in the Victorian Supreme Court to

prevent Mr Langer from encouraging people to vote otherwise than in the

manner approved by the Commonwealth Electoral Act 1918 (the Act). Section

329A of the Act makes it an offence to encourage people to vote other than

in the manner described in section 240 of the Act which provides for a full

preferential system. The matter was heard in the Victorian Supreme Court on

5 and 6 of February 1996. Prior to the court's judgement being delivered,

the High Court ruled, on 7 February 1996, that section 329A of the Act was

Constitutionally valid. (The High Court's judgement resulted from the 1993

election when Mr Langer sought a declaration from the High Court that

section 329A was unconstitutional. Deane J refused to make such a

declaration and referred the Constitutional validity of section 329A to the

Full Bench of the High Court. The judgement is discussed in more detail

below in relation to implied Constitutional freedoms.

On 8 February the Victorian Supreme Court granted an injunction preventing

Mr Langer from continuing his actions. The main order made by the Court

was:

Until 6.00 pm on 2 March 1996 [the time for the close of voting]

or further order the defendant [Mr Langer] whether by himself,

his servants or agents or howsoever otherwise, be restrained from

printing, publishing or distributing, or causing to be printed,

published or distributed, any matter or thing whatsoever with the

intention of encouraging any person to vote at the federal

election for the House of Representatives to be held on 2 March

1996 by filling out a ballot paper otherwise than 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) 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.

The Supreme Court's decision was based on the judge finding that there was

no doubt that the wording of section 240 (see below) required a voter after

indicating their first preference to write the numbers 2, 3, 4 and so on in

numerical sequence. (The words in italics do not appear in section 240 of

the Act.)

Mr Langer, however, continued to distribute the material and appeared again

in the Victorian Supreme Court on 14 February 1996 to answer a charge of

contempt of court arising from his breach of the order made on 8 February

1996. Mr Langer argued that the order was unconstitutional and is reported

as stating 'the only way you can constrain me is to lock me up.' Mr Langer

was then imprisoned until 30 April 1996 for contempt of court.

On 27 February 1996 Mr Langer announced his intention to appeal against his

conviction. The Federal Court agreed to hear the appeal on 28 February on

the basis that if Mr Langer was successful he should be released before the

Election on 2 March. The appeal was principally based on the ground that

the Supreme Court had misinterpreted section 240 of the Act. Mr Langer

argued that as the section required voters to indicate their preference for

candidates, it does not contain a specific requirement to give preference

to candidates when the voter has no preference between the candidates. The

Human Rights Commission, which was joined as a party to the proceedings,

argued that if the method of voting proposed was legal it should not be an

offence to argue in favour of such a vote. The AEC, which was also joined

as a party to the proceedings, argued that while providing information on

how people may vote is not an offence, the encouragement of people to vote

contrary to section 240 was an offence. (The difference between the

provision of information and encouraging people to vote contrary to section

240 was discussed by the High Court in the consideration of the validity of

section 329A and will be discussed below in relation to implied

Constitutional rights.)

The Full Bench of the Federal Court delivered its decision on 1 March 1996

and dismissed Mr Langer's appeal. The Court upheld the Supreme Court's

interpretation of section 240 but reserved its decisions on whether Mr

Langer had been in contempt of court and whether the imprisonment until 30

April was excessive. On 7 March 1996 the Full Bench ruled that Mr Langer

had been in contempt of court but that the sentence was excessive and

ordered that Mr Langer be released immediately.

Relevant Provisions of the Act

The nature of material that may be distributed in relation to the method of

voting for a House of Representatives election and what is a formal vote at

an election is governed by the following sections of the Act:

Section 240 provides that a voter must mark number 1 against the candidate

who has their first preference and then write '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 section was interpreted by the Victorian Supreme Court on 8

February 1996, when issuing the injunction against Mr Langer, as meaning

that no number may be written more than once. The interpretation was

supported by the Federal Court on 1 March 1996 when it dismissed Mr

Langer's initial appeal.

Section 329A makes it an offence, with a maximum penalty of imprisonment

for 6 months, to print, publish or distribute, or to cause to be printed,

published or distributed, any matter or thing with the intention of

encouraging a person at a House of Representatives election to fill in a

ballot paper other than in accordance with section 240.

Section 270 deals with the situations where voters have marked their ballot

paper by not filling out all the squares next to candidates or have marked

their ballot paper with non-consecutive numbers. In relation to House of

Representatives elections, the section provides that a vote will be formal

in an election where there are 3 or more candidates if the number 1 is

placed against one candidate, and the squares opposite other candidates,

except one, are numbered. In such a case, if the numbers against the other

candidates are consecutive they will be taken to be the voters preferences

and if a number is repeated it is to be disregarded.

Section 268 provides that where there are only 2 candidates in a House of

Representatives election and the number 1 is placed against one of the

candidates and the square opposite the other candidate is left empty, the

vote will be valid and the voter will be deemed to have given the latter

candidate their second preference. This will also apply where a number

other than 2 is put in the square opposite the latter candidate.

What is a Formal Vote in the House of Representatives

While the Act establishes a full preferential voting system, the operation

of sections 270 and 268 provide for votes to be treated as valid even

though preferences are not fully expressed. In the recent High Court case

relating to the validity of section 329A, Albert Langer v The Commonwealth

of Australia (the judgement of which was released on 20 February 1996), all

judges agreed that the method of voting proposed by Mr Langer was valid. In

analysing possible forms of valid votes in a House of Representatives

election, the table compiled by the dissenting judge, Dawson J, is

particularly useful. The table as provided by Dawson J follows:

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Table not available online.

In Dawson J's opinion, votes according to A or B would result in the vote

being exhausted after the first preference was allocated and those

according to C or D would expire after the second preference was allocated.

In summary, this would be achieved in the following ways:

A: The first preference would be counted and the other, repeated,

numbers would be excluded in accordance with subsections 270(1)

and (3).

B: This vote would be treated the same as vote A but the square

left blank would not be counted as a second preference as where

there are three or more candidates and the voter has indicated a

first preference and numbered other squares, only the squares

numbered are to be taken as indicating the voter's preferences (

subsection 270(2)).

C: This vote will be counted as a valid first and second

preference vote with the vote being exhausted after the second

preference is delivered. As with vote A, the repeated numbers

would be excluded.

D: Again this vote will allow first and second preferences to be

counted. As with vote B, the blank square will not count as a

second preference.

The above provide examples of the operation of section 270 to save votes

that would otherwise be informal. While the Act provides for a full

preferential voting system, the operation of section 270 allows people to

vote in an 'optional preferential' manner so long as numbers are put in

squares opposite the all the candidates except one. If a ballot paper has

more than 2 candidates, the indication of a first preference only would be

an informal vote. As such, the proposed voting system can be contrasted

with a fully optional preferential system, where the voter has the option

of indicating their first preference only.

It should also be noted that if a preference is indicated only for minor

parties and independents, as advocated by Mr Langer, and these candidates

receive less votes than candidates from the major parties, as is the usual

case in Australian House of Representatives elections, the vote will be

exhausted after the minor parties and independents have been eliminated.

It may also be noted that if no candidate in a House of Representatives

election achieves a majority of the votes cast at an election (ie greater

than half of the votes cast excluding informal votes), there will be no

candidate elected and the election for that seat would need to be held

again (sections 274 and 181 of the Act). Mr Langer argued that if, in an

electorate/s, sufficient voters adopted his method of voting there would be

no majority of the votes cast flowing to a candidate and the election/s

would need to be held again.

Implied Constitutional Rights

As noted above, it was discussed in the High Court whether section 329A of

the Act was invalid as it breached the implied Constitutional right to

freedom of speech in relation to electoral matters. In an earlier case on

the validity of the proposed ban on political advertising during election

periods, a majority of the High Court held that there was an implied right

in the Constitution to freedom of communication on matters relevant to

political discussion. In the Langer case, the Court confirmed that the

implied freedom of communication in relation to political discussion was

not absolute. The validity of section 329A was upheld as the section was

within the Commonwealth's legislative power and the restriction on

encouraging people to vote contrary to section 240 did not prevent the

provision of information on what would constitute a formal vote. In this

regard, the majority differentiated between the provision of information

and the encouragement to vote in a way that was not fully preferential.

They determined that Mr Langer's actions amounted to an encouragement to

breach section 240 rather than the provision of information on what

constitutes a formal vote and so breaches section 329A. The dissenting

judge, Dawson J, found there to be little practical distinction between the

provision of information and encouraging its use, stating ''To put matters

shortly, to make available information is ordinarily to encourage its use.'

Returning to the general nature of the implied freedom of political

communications, Brennan CJ noted that whether this was breached must be

examined on the particular circumstances of the restriction and commented:

In my view, if the impairment of the freedom 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, the law is within power.

In their joint judgement Toohey J and Gaudron J also agreed that the

implied freedom was not absolute and that the freedom could be restricted:

where that curtailment is reasonably capable of being viewed as

appropriate and adapted to furthering or enhancing the democratic

process.

In upholding the validity of section 329A the majority Justices were of the

opinion that the section fell within this allowable restriction.

Other Views and Reactions

Following the 1993 election a reference was given to the Joint Standing

Committee on Electoral Matters to inquire into the conduct of the election

and during it's inquiry the question of the relevance of section 329A was

examined. The Committee consisted of 6 ALP, 3 Liberal, 1 National, 1

Democrat and 1 Green Western Australia representatives. The majority in the

Committee stated that they did not endorse either informal or optional

preferential voting and withheld further comment on the section until the

Constitutional validity of section 329A was determined by the High Court.

The Dissenting report, by the 3 Liberal and 1 National Party

representatives, noted that the AEC had not been able to prosecute anyone

for a breach of section 329A after the 1993 election, and concluded that

the section should be repealed.

Methods of voting similar to those advocated by Mr Langer have also been

advocated by others who have not been subject to action for a breach of

section 329A. For example, two Anarchist Senate candidates for the 1996

Senate election advocated a similar voting method and a campaign has been

conducted on the internet endorsing such a method of voting. Members of Mr

Langer's support group, known as Neither, have distributed leaflets and how

to vote cards advocating a vote according to the method advocated by Mr

Langer. The AEC has taken no action against others encouraging a non-full

preferential vote.

Amnesty International has also become involved in the Langer case, calling

for Mr Langer to be freed and describing him as Australia's first prisoner

of conscience for over 20 years, alleging that the imprisonment was a

breach of the Universal Declaration of Human Rights and the International

Covenant on Civil and Political Rights.

During the election campaign Mr Howard described the provisions of the Act

that led to the injunction being granted against Mr Langer as 'stupid' and

on the day of Mr Langer's release from prison the Human Rights Commissioner

called for those laws to be repealed.

Conclusion

Preliminary figures from the AEC show that approximately 46 000 votes were

exhausted during the 1996 House of Representatives election, an increase of

over 500 percent on the number of exhausted votes in the 1993 election. The

impact of the method of voting advocated by Mr Langer was such that the AEC

has initiated a survey of Langer style votes. The exhausted votes were

spread throughout Australia, with the largest number of exhausted votes

being in NSW. Mr Langer has thanked the AEC for the publicity his advocated

method of voting received following the action taken against him.

Endnotes

1. In this case the Supreme Court was exercising its Federal, rather than

State, jurisdiction. Consequently Victorian laws requiring contempt

charges to be initiated by the Victorian Attorney-General do not

apply.

2. The Australian, 15 February 1996.

3. The Age, 29 February 1996.

4. Australian Capital Television Pty Ltd v The Commonwealth (1992) 177

CLR 106

5. Joint Standing Committee on Electoral Matters, The 1993 Federal

Election, 106.

6. Ibid.: 163.

7. The Canberra Times, 5 March 1996.

Contact Officer and copyright details

Chris Field

Law and Public Administration Group

30 April 1996.

ISSN 1321-1560

- Copyright Commonwealth of Australia 1996

Except to the extent of the uses permitted under the Copyright Act 1968, no

part of this publication may be reproduced or transmitted in any form or by

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prior written consent of the Department of the Parliamentary Library, other

than by Senators and Members of the Australian Parliament in the course of

their official duties.

This paper has been prepared for general distribution to Senators and

Members of the Australian Parliament. While great care is taken to ensure

that the paper is accurate and balanced, the paper is written using

information publicly available at the time of production. The views

expressed are those of the author and should not be attributed to the

Parliamentary Research Service (PRS). Readers are reminded that the paper

is not an official parliamentary or Australian government document. PRS

staff are available to discuss the paper's contents with Senators and

Members and their staff but not with members of the public.

Published by the Department of the Parliamentary Library, 1996

Acknowledgments

The author thanks Bill Bak for the assistance given in producing this

paper.

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