High Court of Australia|1996-02-20|Before: Brennan CJ

Langer v Commonwealth [1996] HCA 43; (1996) 186 CLR 302 (20 February 1996)

ALBERT LANGER v THE COMMONWEALTH OF AUSTRALIA AND OTHERS

[1996] HCA 43; (1996) 186 CLR 302

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

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

BRENNAN CJ. The following question was reserved by Deane J for the consideration of the Full Court:

"Is section 329A of the Commonwealth Electoral Act 1918 a

valid enactment of the Parliament of the Commonwealth?"

2. Section 329A (1) of the Commonwealth Electoral Act 1918 ("the Act") provides as follows:

"(1) A person must not, during the relevant period (2) in

relation to a House of Representatives election under this Act, print, publish or distribute, or cause, permit or authorise to be printed, published or distributed, any matter or thing with the intention of encouraging persons voting at the election to fill in a ballot paper otherwise than in accordance with section 240.

(2) In this section:

'publish' includes publish by radio or television."

3. Section 240 of the Act provides:

"In a House of Representatives election a person shall mark

(a) writing the number 1 in the square opposite the name of

the candidate for whom the person votes as his or her first preference; and

(b) writing the numbers 2, 3, 4 (and so on, as the case

requires) in the squares opposite the names of all the remaining candidates so as to indicate the order of the person's preference for them."

4. The method of voting prescribed by this section can be described as full preferential voting. To cast an effective vote, a voter must indicate an order of preference as among all the candidates whose names appear on the ballot paper. If the voter fails to indicate preferences in accordance with s 240, s 268(1)(c) applies:

"(1) A ballot-paper shall (except as otherwise provided by

section 239, and by the regulations relating to voting by post) be informal if:

(c) subject to subsection 270(2), in a House of

Representatives election, it has no vote indicated on it, or it does not indicate the voter's first preference for 1 candidate and an order of preference for all the remaining candidates:

Provided that, where the voter has indicated a first

preference for 1 candidate and an order of preference for all the remaining candidates except 1 and the square opposite the name of that candidate has been left blank, it shall be deemed that the voter's preference for that candidate is the voter's last and that accordingly the voter has indicated an order of preference for all the candidates:

Provided further that, where there are two candidates only

and the voter has indicated his or her vote by placing the figure 1 in the square opposite the name of 1 candidate and has left the other square blank or placed a figure other than 2 in it, the voter shall be deemed to have indicated an order of preference for all the candidates;

(3) A ballot-paper shall not be informal for any reason

other than the reasons specified in this section, but shall be given effect to according to the voter's intention so far as that intention is clear."

Thus, subject to s 270(2), a ballot paper that is not filled in in accordance with s 240 is excluded from the scrutiny as informal unless a preference is deemed to have been indicated by a single blank square in accordance with the provisos to s 268(1)(c).

5. Despite the provisions of ss 240 and 268(1)(c), s 270(2) provides for a remedial reading of a ballot paper that would otherwise be excluded from the scrutiny:

"(2) Where a ballot-paper in a House of Representatives

(a) has the number 1 in the square opposite to the name of a

(b) has other numbers in all the other squares opposite to

the names of candidates or in all those other squares except one square that is left blank; and

(c) but for this subsection, would be informal by virtue of

(d) the ballot-paper shall not be informal by virtue of that

(e) the number 1 shall be taken to express the voter's first

(f) where numbers in squares opposite to the names of

candidates are in a sequence of consecutive numbers commencing with the number 1 - the voter shall be taken to have expressed a preference by the other number, or to have expressed preferences by the other numbers, in that sequence; and

(g) the voter shall not be taken to have expressed any other

Section 270(3) provides:

"In considering, for the purposes of subsection (1) or (2),

whether numbers are in a sequence of consecutive numbers, any number that is repeated shall be disregarded."

The provisos to s 268(1)(c) and s 270(2) ("the saving provisions") save from informality ballot papers that are filled in otherwise than in accordance with s 240.

6. The plaintiff contends that he is constitutionally entitled to publish material encouraging persons to fill in their ballot papers otherwise than in accordance with s 240 so that, if the encouragement is taken, their ballot papers would be informal or would be saved from informality by the saving provisions. This entitlement is said to be conferred by the requirement expressed in s 24 of the Constitution that the members of the House of Representatives be "chosen by the people". A voter, so the argument goes, must be free to indicate the candidates which the voter does not choose as well as the candidate or candidates which the voter does choose and, in some circumstances, that can be done only by the filling in of a ballot paper otherwise than in accordance with s 240. If I apprehend correctly the next step in the argument, it is said that s 329A cannot validly prohibit the encouragement of voters to exercise that right of choice which the Constitution allows. A secondary argument - raised but not pressed - is that s 329A is invalid because it infringes the freedom of communication about political matters which this Court has held to be implied in the Constitution (3). Voter's choice in filling in ballot paper

7. The method of choosing members of the House of Representatives is governed by the Act. The Parliament is empowered to prescribe that method by ss 31 and 51(xxxvi) of the Constitution, just as it is empowered by s 9 to prescribe the method of choosing senators.

8. In Judd v McKeon (4), an elector was prosecuted for failing to vote in a Senate election without a valid and sufficient reason for that failure. (Under the Act as it now stands that offence is created by s 245(15)(a)). The elector's reason for not voting was political antipathy towards all the candidates. His argument that a law prescribing compulsory preferential voting was beyond the power conferred by s 9 of the Constitution was rejected. Isaacs J said (5):

"The community organized, being seised of the subject matter

of parliamentary elections and finding no express restrictions in the Constitution, may properly do all it thinks necessary to make elections as expressive of the will of the community as they possibly can be. ... A method of choosing which involves compulsory voting, so long as it preserves freedom of choice of possible candidates, does not offend against the freedom of elections, as established and recognised by the Statute of Westminster I (3 Edw I c 5)."

What the Constitution requires is that the law prescribe a method of voting which leaves the voter free to make a choice, not that the law leave the voter free to choose the method of voting by which a voter's choice is to be made. A method which requires full preferential voting satisfies the constitutional requirement. In Judd v McKeon, Knox CJ, Gavan Duffy and Starke JJ said (6):

"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."

A refusal to vote on the ground that the elector would not wish to give a preference to any candidate would be an "open challenge to the very essence of the enactment" as Isaacs J said (7).

9. In Faderson v Bridger (8), an elector who did not have any preference among the candidates advanced that fact as a "valid and sufficient reason" for not voting at a Senate election in which voters were required to "'place the number 1 in the square opposite the name of the candidate for whom he votes as his first preference', all the remaining squares to be marked with successive numbers as the voter determines as contingent votes" (9). The elector's defence failed. Barwick CJ, with whom McTiernan and Owen JJ agreed, said (10):

"However much the elector may say he has no personal

preference for any candidate, that none of them will suit him, he is not asked that question nor required to express by his vote that opinion. He is asked to express a preference amongst those who are available for election, that is, to state which of them he prefers if he must have one or more of them as Parliamentary representatives, as he must, and to mark down his vote in an order of preference of them. ... To face the voter with a list of names of persons, none of whom he may like or really want to represent him and ask him to indicate a preference amongst them does not present him with a task that he cannot perform."

10. The legislative power over elections for the House of Representatives conferred by ss 31 and 51(xxxvi) is a plenary power and, as Isaacs J said in Smith v Oldham (11) with reference to the power over federal elections:

"The limits of plenary power end only with the subject

Provided the prescribed method of voting permits a free choice among the candidates for election, it is within the legislative power of the Parliament. Section 24 of the Constitution does not limit the Parliament's selection of the method of voting by which a voter's choice is made known so long as the method allows a free choice. Section 240 permits a voter to make a discriminating choice among the candidates for election to the House of Representatives. An election in which members of the House of Representatives are elected pursuant to such a method of voting achieves what s 24 requires, namely, a House of Representatives composed of members directly chosen by the people.

11. It follows that the Parliament is empowered to prescribe a method of voting in an election for the House of Representatives that requires a voter to fill in a ballot paper in accordance with s 240, although that method requires a voter to choose by allocating preferences among candidates for whom the voter does not wish to vote. It is not to the point that, if a ballot paper were filled in otherwise than in accordance with s 240, the vote would better express the voter's political opinion.

12. Since s 240 can reasonably be regarded as prescribing a method of freely choosing members of the House of Representatives, a law which is appropriate and adapted to prevent the subversion of that method is within power. Section 329A is such a law. The saving provisions do not affect its validity. They are designed to minimise the exclusion of ballot papers from the scrutiny provided the voter's intention clearly appears from the voter's partial compliance with the method prescribed by s 240. But the saving provisions do not detract from the power to enact s 329A in order to protect what the Parliament intends to be the primary method of choosing members of the House of Representatives.

13. Once the generality of the power to enact laws relating to elections is appreciated and the validity of s 240 is accepted, s 329A can be seen to be a provision appropriate and adapted to the protection of the method of electing members of the House of Representatives.

14. The powers of the Parliament are impliedly limited so as to preserve that freedom of political discussion which is essential to the maintenance of the Commonwealth system of representative government. But, as the judgments in the free speech cases have shown (12), the extent of the limitation depends on the particular circumstances, including especially the subject matter of the law which impairs the freedom. In Australian Capital Television Pty Ltd v The Commonwealth (13), Theophanous v Herald and Weekly Times Ltd (14) and Cunliffe v The Commonwealth (15), I sought to explain the approach to be taken in determining the validity of a law impugned on the ground that it impairs the freedom of political discussion. 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 Cunliffe (16), I observed:

"The constitutional freedom of political discussion ensures

freedom to engage in debate about the institutions of government and the exercise of any kind of governmental power but it does not impair, much less sterilize, the exercise of a power which might become the subject of political debate."

15. Section 329A does not prohibit discussion about the operation or desirability of the method of voting prescribed by s 240 nor does it prohibit advocacy of its amendment or repeal. Section 329A operates in the context of the method of voting prescribed by s 240 and prohibits intentional encouragement of the filling in of ballot papers in a way which, if not within the saving provisions, will result in the exclusion of the ballot paper from the scrutiny and which, if within the saving provisions of s 270(2), will result in a diminished expression of the elector's preferences. The prohibition contained in s 329A is thus a means of protecting the method which Parliament has selected for the choosing of members of the House of Representatives. The restriction on freedom of speech imposed by s 329A is not imposed with a view to repressing freedom of political discussion; it is imposed as an incident to the protection of the s 240 method of voting.

16. If the Act had prescribed methods of voting alternative to those prescribed by s 240, there 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. The saving provisions do not prescribe an alternative method; they merely save from invalidity some ballot papers which are not filled in in accordance with the method which the Act prescribes. Nor does s 329A prohibit a person from informing electors of the state of the law. It simply prohibits encouragement of voters to fill in their ballot papers otherwise than in accordance with the method of voting prescribed by the Act.

DAWSON J. By a question reserved by Deane J for its consideration, the Court is asked to determine the validity of s 329A of the Commonwealth Electoral Act 1918 (Cth) ("the Act"). That section provides:

"(1) A person must not, during the relevant period in

(2) In this section:

'publish' includes publish by radio or television."

2. By s 322 "relevant period" means in relation to an election the period commencing on the issue of the writ for the election and expiring at the latest time on polling day at which an elector in Australia could enter a polling booth for the purpose of casting a vote in the election.

3. It would appear that the "mischief" to which s 329A is directed is not the casting of an informal vote but rather the casting of a vote in a particular - and permissible - form. To appreciate that, it is necessary to refer to other sections of the Act which prescribe the preferential system of voting which is employed in the election of members of the House of Representatives.

4. Section 240 itself provides:

"In a House of Representatives election a person shall mark

(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."

The purpose of requiring an elector to mark the ballot-paper in the manner prescribed by s 240 is revealed by s 274(7)(d), which directs the divisional returning officer to count the votes as follows:

"(i) the candidate who has received the fewest first

preference votes shall be excluded, and each ballot-paper counted to the candidate shall be counted to the candidate next in the order of the voter's preference;

(ii) the process of excluding the candidate who has the

fewest votes, and counting each of his or her ballot-papers to the unexcluded candidate next in the order of the voter's preference, shall be repeated until only 2 candidates remain in the count; and

(iii) if, following the ascertainment of the first

preference votes given for each candidate or the exclusion of candidates under this paragraph, a candidate has an absolute majority of votes, that candidate shall be elected".

Under s 274(8) a ballot-paper is to be set aside as exhausted where on a count it is found that the ballot-paper expresses no preference for any unexcluded candidate.

5. Section 268(1) (17) provides that a ballot-paper may be informal for a number of reasons. Under par(c) it is informal if it has no vote indicated on it or it does not indicate the voter's first preference for one candidate and an order of preference for all the remaining candidates. But s 268(1) is subject to two provisos. The first is that where the voter has indicated a first preference for one candidate and an order of preference for all the remaining candidates except one and the square opposite the name of that candidate has been left blank, it is deemed that the voter's preference for that candidate is the voter's last and that accordingly the voter has indicated an order of preference for all the candidates. The second proviso is that where there are two candidates only and the voter has indicated his or her vote by placing the number 1 in the square opposite the name of one candidate and has left the other square blank or placed a number other than 2 in it, the voter is deemed to have indicated an order of preference for all the candidates.

6. Section 270(2) (18) and (3) provide:

"Where a ballot-paper in a House of Representatives election

(a) has the number 1 in the square opposite to the name of a

(b) has other numbers in all the other squares opposite to

the names of candidates or in all those other squares except one square that is left blank; and

(c) but for this subsection, would be informal by virtue of

(d) the ballot-paper shall not be informal by virtue of that

(e) the number 1 shall be taken to express the voter's first

(f) where numbers in squares opposite to the names of

(g) the voter shall not be taken to have expressed any other

(3) In considering, for the purposes of subsection (1) or

(2), whether numbers are in a sequence of consecutive numbers, any number that is repeated shall be disregarded."

7. The effect of s 270, which appears under the heading "Certain votes with non-consecutive numbers to be formal", is to modify s 240, which requires numbers to be written in the squares opposite the names of all candidates so that, when the numbers are read consecutively, the voter's order of preference for all the candidates is indicated. Under s 270 a voter is not required to number each square so that these numbers may be read consecutively provided that he or she places the number 1 in one square and fills in all the other squares save the one which may be left blank under the provisos to s 268(1). This is made clear by s 270(3) which provides that a number which is repeated is to be disregarded. The result is, it would seem, that s 270 saves from informality votes such as the following:

A B C D

1 1 1 1

2 2 2 2

2 2 3 3

2 2 3 3

2 3

The ballot-papers in A and B would be exhausted after the first preference was counted. The ballot-papers in C and D would be exhausted after the second preference was counted. Thus, a voter may by repeating a number avoid expressing a preference for a particular candidate or particular candidates and nevertheless have his or her vote counted. This result has been described as optional preferential voting or, perhaps more accurately, selective preferential voting as opposed to the full preferential system of voting which is envisaged by s 240 standing alone.

8. Whilst it was appreciated, indeed intended, that s 270 should have the effect of saving votes which, by reason of mistake on the part of the voter, could not be read consecutively, it may not have been appreciated that the effect of the section was to allow voters to avoid intentionally the expression of any preference, and hence any vote, for a particular candidate or particular candidates.

9. When ss 240, 268 and 270 are read together - as they must be - it is clear that the Act allows more than one method of casting a formal vote. A ballot-paper not completed in accordance with s 240 may nevertheless constitute a formal vote if the requirements of s 268 or s 270 are satisfied. In my 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. Although ss 268 and 270 in terms deal with the counting of votes so as to save votes unintentionally cast in a form different from that prescribed by s 240, it is plain that the effect of those provisions is to allow a voter to cast a formal vote with a ballot-paper which is not in accordance with s 240.

10. In the 1990 Federal Election Report (19) from the Joint Standing Committee on Electoral Matters it was said:

"The issue of encouraging electors to record their votes

other than in accordance with the instructions on the ballot paper arose again during the 1990 election and received considerable media attention. In some instances electors were urged not to express their preferences fully - for example, by voting 1, 2, 2, 2 etc. This effectively allows optional preferential voting."

The reference in that passage to the recording of votes otherwise than in accordance with the instructions on the ballot-paper appears not to be entirely accurate. The instruction on the ballot-paper merely instructs voters: "Remember .... number every box to make your vote count." (20) That instruction is, in any event, at variance with the provisos to s 268.

11. The Report goes on to say that optional preferential voting was an unintended effect of s 270 which was designed "only to provide a safety net for people who make a genuine mistake in filling out their ballot papers". It continues:

"This practice is of considerable concern because of the

significant increase in the number of House of Representatives exhausted votes between the 1987 and 1990 elections - that is, an increase from 2082 exhausted votes at the 1987 election to 18,765 in 1990. Given the small margins separating winning candidates at the 1990 election this figure is disturbing. The AEC (Australian Electoral Commission) suggested that the increase in exhausted votes would appear to indicate that the public attention given to the matter may have had an undesirable effect.

The AEC commented that it is very difficult to see how

section 270 of the Electoral Act could be amended to retain the safety net yet avoid de facto optional preferential voting. One avenue for dealing with the problem is in the area of penalties for those who induce people to fill out the ballot paper other than in accordance with the instructions under s 329(3) of the Act."

Section 329(3) of the Act creates an offence arising from the misrepresentation of a ballot-paper in a manner likely to induce an elector to mark his or her ballot-paper otherwise than in accordance with the directions on the ballot-paper.

12. Section 329A, which was inserted in the Act in 1992 (21), was plainly directed against the exercise of the right conferred by the Act to engage in optional or selective preferential voting in a House of Representatives election. It does not, however, deny the right but seeks to prevent voters becoming aware of its existence, at all events where the imparting of information concerning its existence is intended to encourage its use. If there is a line between imparting information with an intention to encourage its application and imparting information with an intention merely to inform it must (save where there is active discouragement) be a thin one. But I shall return to this.

13. Section 24 of the Constitution provides that the House of Representatives shall be composed of members directly chosen by the people of the Commonwealth. Although that section does not expressly require the choice to be made by election, other sections, in particular ss 30 and 31, make it clear that members are to be chosen by election. And it is clear from s 30 that not all of the people were intended to vote in elections so that the choice by the people is to be made through the casting of votes by those eligible to vote. The Constitution does not require the provision of any particular electoral system (22). Thus, the provision in s 240 for a preferential voting system is clearly within power notwithstanding that it requires a choice to be made in a specified manner and, standing alone, requires a preference to be expressed in respect of each candidate (23). Whatever the system, the Constitution requires that a choice must be made and, as I pointed out in Australian Capital Television Pty Ltd v The Commonwealth (24), the 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. Other members of the Court adopted a different approach and found in the concept of representative government or representative democracy an implied freedom of communication which was to be read into the Constitution. The freedom was said to embrace the discussion of government and political matters (25).

14. I was unable to accept the line of reasoning adopted by the majority of the Court in finding a constitutionally guaranteed freedom of communication because that guarantee was derived, in my view, from a notion of representative government which does not appear from any requirement contained in the Constitution itself (26). The freedom of communication which I thought to be required by the Constitution was confined to what is necessary for the conduct of elections by direct popular vote as envisaged by ss 7 and 24 and related sections. Nevertheless, in my view, that requirement is sufficient to invalidate s 329A of the Act.

15. Section 31 of the Constitution provides that:

"Until the Parliament otherwise provides, but subject to

this Constitution, the laws in force in each State for the time being relating to elections for the more numerous House of the Parliament of the State shall, as nearly as practicable, apply to elections in the State of members of the House of Representatives."

Section 51(xxxvi) provides that the parliament may make laws for those matters in respect of which the Constitution makes provision until the parliament otherwise provides and, hence, parliament has power to make laws with respect to the election of members of the House of Representatives. It is that power which was exercised in the enactment of the Act. But it is clearly not a power which is at large. The Constitution having established in s 24 that the House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, the elections with respect to which parliament is given power to make laws by ss 31 and 51(xxxvi) must necessarily be elections fulfilling the requirements of s 24. That is to say, the legislative power conferred by those provisions is a purposive power: a power to make laws for the purpose of implementing s 24.

16. Since, as I have said, the choice which is required by s 24 must be a genuine choice (27), those eligible to vote must have available to them the information necessary to exercise such a choice. In Cunliffe v The Commonwealth (28) I expressed the view, to which I adhere, that the usefulness of the doctrine of proportionality in determining the validity of laws under the Constitution is confined to those laws which are enacted pursuant to a purposive power. Otherwise, the test must be whether there is sufficient connection between the law and the subject-matter of the power. But, for the reasons which I have given, the power conferred by ss 31 and 51(xxxvi) may properly be regarded as a purposive power and it is therefore open to test the validity of a law enacted in the purported exercise of that power by asking whether the law is reasonably and appropriately adapted to the achievement of an end which lies within power. To my mind, s 329A (or, more accurately, the law inserting it in the Act) is not such a law. It is a law which is designed to keep from voters information which is required by them to enable them to exercise an informed choice. It can hardly be said that a choice is an informed choice if it is made in ignorance of a means of making the choice which is available and which a voter, if he or she knows of it, may wish to use in order to achieve a particular result.

17. If s 240 stood alone, s 329A would be supportable as a protection of the preferential system of voting provided by the Act. Upon any view, some limitations upon freedom of communication are necessary to ensure the proper working of any electoral system (29). However, the method of preferential voting which is established by the Act is that which may be discerned from ss 240, 268, 270 and 274 read together. Sections 268 and 270 qualify the method of voting prescribed by s 240 and s 270 makes available optional or selective preferential voting as opposed to full preferential voting. It is true that a voter cannot cast a formal vote by simply placing the number 1 in the square beside one candidate and leaving all the others blank. But the fact remains that the Act permits voters intentionally to record a preference for only one or some of the candidates standing for election by completing their ballot-paper in the manner which I have described above. To prohibit communication of this fact (or at any rate communication in the form of encouragement) is to restrict the access of voters to information essential to the formation of the choice required by s 24 of the Constitution. Thus, s 329A has the intended effect of keeping from voters an alternative method of casting a formal vote which they are entitled to choose under the Act.

18. It does not, to my mind, matter that the prohibition imposed by s 329A is confined to the conveying of information with the intention of encouraging persons voting at an election to fill in a ballot-paper otherwise than in accordance with s 240. 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. This is particularly so in the context of an election. The effect of s 329A in any practical sense must, in my view, be to discourage, if not prevent, persons from imparting to eligible voters knowledge that the electoral system permits optional or selective preferential voting. It cannot, therefore, be a law which is reasonably and appropriately adapted to the achievement of an end which lies within the ambit of the relevant legislative power. Indeed, the effect of the provision is such that it is possible to adopt the words of Mason CJ, Deane and Gaudron JJ in Davis v The Commonwealth (30):

"This extraordinary intrusion into freedom of expression is

not reasonably and appropriately adapted to achieve the ends that lie within the limits of constitutional power."

19. I have been able to reach my conclusion without reliance upon the reasoning of the majority with regard to freedom of communication in the previous cases (31). With the greatest of respect, that reasoning does not, as I have indicated, commend itself to me. But upon that reasoning, the Constitution guarantees freedom of political discussion. I must confess that I am unable to see how political discussion can be confined to the mere imparting of information and why it should not extend to the furnishing of information with the intention that it should be used. Indeed, exhortation or encouragement of electors to adopt a particular course in an election is of the very essence of political discussion and it would seem to me that upon the view adopted by the majority in the earlier cases, s 329A must infringe the guarantee which they discern. It is true that the encouragement of voters to adopt a course which is inconsistent with the casting of a formal vote may not infringe that guarantee because the casting of a formal, and therefore, effective, vote is in the interests of representative government, as are the various other controls which may impede freedom of discussion but which are required to ensure that an electoral system works properly. But s 329A goes beyond matters of that kind. It seeks to prevent the encouragement of voters to cast their votes in a form which is open to them. It must inevitably inhibit freedom of political discussion in a manner which does nothing to aid the proper conduct of elections in accordance with the Act.

20. For these reasons, I would answer no to the question whether s 329A of the Commonwealth Electoral Act 1918 is a valid enactment of the Parliament of the Commonwealth.

TOOHEY AND GAUDRON JJ The following question has been reserved for the consideration of the Full Court:

"Is section 329A of the Commonwealth Electoral Act 1918 a

valid enactment of the Parliament of the Commonwealth?"

2. Section 329A of the Commonwealth Electoral Act 1918 (Cth) ("the Act") relevantly provides:

"(1) A person must not, during the relevant period in

relation to a House of Representatives election under this Act, print, publish (32) 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."

Section 322 defines "relevant period" to mean, "in relation to an election under (the) Act, ... the period commencing on the issue of the writ for the election and expiring at the latest time on polling day at which an elector in Australia could enter a polling booth for the purpose of casting a vote in the election".

3. Section 240 provides that "(i)n a House of Representatives election a person shall mark his or her vote on the ballot-paper by:

(a) writing the number 1 in the square opposite the name of

the candidate for whom the person votes as his or her first preference; and

(b) writing the numbers 2, 3, 4 (and so on, as the case

requires) in the squares opposite the names of all the remaining candidates so as to indicate the order of the person's preference for them".

4. Although couched in mandatory terms, 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. Rather, it is the foundation of a somewhat complicated legislative scheme directed to the question whether and, if so, how a ballot-paper will be counted in an election for the House of Representatives. The preferences expressed in a ballot-paper which complies with s 240 will be distributed in accordance with s 274 of the Act until one candidate has an absolute majority of votes or until only two candidates remain (33).

5. The scheme is partially revealed by s 268(1)(c) which relevantly provides that, subject to s 270(2) of the Act, a ballot-paper which does not comply with s 240 is informal unless it satisfies one or other of the provisos to s 268(1)(c) (34). The effect of the provisos is that, if the number 1 is placed against the name of one candidate and consecutive numbers are placed against the names of all but one of the other candidates, the elector is deemed to have given his or her last preference to that candidate and his or her ballot-paper is counted in the ballot on the basis that it expresses a preference, from first to last, for each of the candidates whose names appear on the ballot-paper.

6. The scheme is completed by s 270(2) which provides:

"Where a ballot-paper in a House of Representatives election

(a) has the number 1 in the square opposite to the name of a

(b) has other numbers in all the other squares opposite to

the names of candidates or in all those other squares except one square that is left blank; and

(c) but for this subsection, would be informal by virtue of

(d) the ballot-paper shall not be informal by virtue of that

(e) the number 1 shall be taken to express the voter's first

(f) where numbers in squares opposite to the names of

candidates are in a sequence of consecutive numbers commencing with the number 1-the voter shall be taken to have expressed a preference by the other number, or to have expressed preferences by the other numbers, in that sequence; and

(g) the voter shall not be taken to have expressed any other

It is provided by s 270(3) that "(i)n considering, for the purposes of subsection ... (2), whether numbers are in a sequence of consecutive numbers, any number that is repeated shall be disregarded". The effect of s 270(2) and (3) is that, if there are three or more candidates, a ballot-paper will be counted until it is exhausted (35) so long as the number 1 is placed against one candidate and there are numbers against all other candidates, or all other candidates but one. Thus, for example, if there are six candidates and the voter places numbers 1, 2, 3, 4 and 4 against the names of five candidates, the ballot-paper will be exhausted after the third preference but, until then, it will be counted in the ballot.

7. The proscription effected by s 329A is not accurately described as a proscription of conduct intended to encourage electors to vote informally. A ballot-paper may be informal for reasons other than non-compliance with s 240: it may not be authenticated by the initials of the presiding officer or by the presence of the official mark (36); or it may be marked in such a way that, in the opinion of the Divisional Returning Officer, the voter can be identified (37). And as already noted, ballot-papers which do not comply with s 240 will, nonetheless, be formal and counted in the ballot if they satisfy one or other of the provisos to s 268(1)(c) or the conditions specified in s 270(2): fully counted, if they satisfy one or other of the provisos; counted until exhausted, in the case of ballot-papers satisfying s 270(2) of the Act.

8. The proscription effected by s 329A is different in purpose and effect from a proscription on conduct intended to encourage electors to vote informally. Its effect is to proscribe conduct of the kind which the section describes and which is intended to encourage voters not to place consecutive numbers, starting with the number 1, against the names of all candidates on the ballot-paper. And odd though it be, its purpose would seem to be 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. In any event, it operates that way and, in so doing, it assists in the maintenance of a system of full preferential voting, to the extent that that is possible in a context where effect is given to ballot-papers that do not express a preference for all candidates by deeming them so to do, or by counting them to the extent that an order of preference is revealed.

9. It should be noted that s 329A is confined to conduct that is intended to encourage non-compliance with s 240 and is not concerned with conduct that is intended only to inform. Thus, it is not directed to conduct intended to provide information as to the circumstances in which a ballot-paper will be formal, notwithstanding non-compliance with s 240, or as to the manner in which it will be counted. Nor is it directed to conduct intended to inform voters as to the possible consequences of expressing a preference for each of the candidates whose names appear on the ballot-paper.

10. It is asserted by the plaintiff, and not contested by the defendants, that one of the possible consequences or "paradoxes" of compliance with s 240 of the Act is that, although a last or final preference is popularly regarded as a vote against the candidate to whom it is given, a candidate may, in some circumstances, be "elected on final preferences" (38).

11. Strictly, this case is concerned only with s 329A of the Act. However, the plaintiff contends that s 240 is invalid to the extent that it requires a voter to express a preference for a person whom he or she would wish to vote against. And he contends that, consequently, s 329A is also invalid. The argument is that s 240 offends against the requirement in s 24 of the Constitution that members of the House of Representatives be "directly chosen by the people of the Commonwealth" (39) because, it is said, a voter is denied effective choice if he or she is required to express a preference for a candidate whom he or she wishes to vote against.

12. It is not strictly correct to say that s 240 obliges a voter to express a preference for a candidate whom he or she wishes to vote against. The section must be read in the context of the Act as a whole, including s 270(2). When so read, a voter is free, if there are three or more candidates, to vote against a candidate by ensuring that his or her ballot-paper is exhausted before it is counted towards the candidate whom he or she wishes to vote against. Thus, for example, if there are three candidates and the voter wishes to vote against two of them, he or she can do so by voting 1, 2, 2. However, it is not possible to vote against one candidate only: if a voter votes 1, 2 and leaves the other box blank, for example, the ballot-paper will be deemed to express a preference for all candidates pursuant to the first proviso to s 268(1)(c) and will be counted accordingly.

13. The circumstances in which the application of the provisos to s 268(1)(c) of the Act would have any practical effect on the outcome of an election were not explored in argument. However, it would seem that that is possible where there are two unexcluded candidates and the ballot-papers counted to them are equal (40). And on that basis, it may fairly be said that a voter cannot cast a formal vote and, at the same time, vote against one candidate only. The question then is whether this limited ability to vote against a candidate offends the requirement in s 24 of the Constitution that members of the House of Representatives be "directly chosen by the people".

14. The expression "directly chosen by the people of the Commonwealth" in s 24 has its counterpart, in relation to Senate elections, in s 7 which requires that the Senate "be composed of senators for each State, directly chosen by the people of the State". Two matters may be noted with respect to the expression in ss 7 and 24: as pointed out in Attorney-General (Cth); Ex rel McKinlay v The Commonwealth, the phrase is concerned with "the people", not with "electors" who are referred to as such in ss 8, 30 and 128 of the Constitution (41); and the word used is "chosen" rather than "elected", a distinction of some significance which is evident in s 15 following its substitution in 1977 to deal with casual Senate vacancies (42).

15. The words "choose", "choosing" and "chosen" are used in various other constitutional provisions relating to senators and members of the House of Representatives, including ss 8, 9, 13, 15, 26, 29, 30, 43 and 44. It would be wrong to approach those words in ss 7, 24 or any of the other provisions to which reference has been made on the basis that they are to be equated with the words "elect", "electing" or "elected" (43). At the very least, the word "chosen" is apt to describe accurately the situation where there is only one candidate and it is, thus, unnecessary to conduct a ballot. A further distinction can be discerned in the context of s 43 which provides that "(a) member of either House of the Parliament shall be incapable of being chosen or of sitting as a member of the other House." Such a person may well be capable of being elected, in the sense of securing the necessary number of votes, although not capable of being chosen because of his or her disqualification.

16. When regard is had to the absence of any reference in ss 7 and 24 to electors, elections or persons being elected, the limited nature of the franchise which existed at the time of federation (44), the separate constitutional provisions concerned with the franchise (45) and the numbers of senators (46) and members of the House of Representatives (47), the requirement that senators and members of the House of Representatives be "chosen by the people" must be taken as primarily mandating a democratic electoral system and as bearing on the features of that system only in the sense that it prohibits any feature that prevents it being said that the Senate or the House of Representatives is, or would, in the event of an election, be composed of persons "chosen by the people". In this context and no matter how broadly the words "chosen by the people" are construed, there is nothing to support the view that members who are elected pursuant to a full preferential voting system, or the modified preferential voting system effected by ss 240, 268 and 270 of the Act, are not properly described as "chosen by the people". The mere fact that a voter's ability to cast a formal vote and, at the same time, vote against a candidate is limited in the way earlier described does not have the effect that the House of Representatives is not properly described as composed of members "chosen by the people". Accordingly s 240 is valid and it follows that the plaintiff's argument with respect to s 329A of the Act must fail.

17. There is, perhaps, more force in an argument that an individual who is "elected on final preferences" (48) is not properly described as "chosen by the people". However, in our view, such a person is as much "chosen by the people" as a candidate who is unopposed and declared "duly elected" pursuant to s 179(3) of the Act and who, as already indicated, is properly encompassed in the expression "chosen by the people". This notwithstanding, it may be that the same could not be said if the outcome of an election were to depend on deemed preferences because of the operation of one or other of the provisos to s 268(1)(c) of the Act. If in the event of a tied vote, for example, the candidate for whom fewer voters expressed a final preference were to be declared elected, it may be that he or she could not accurately be described as "chosen by the people" (49). That, however, is a question that is separate and distinct from any question as to the validity of s 240 of the Act. Moreover, it is a question that may never arise.

18. Although the plaintiff did not argue that s 329A of the Act is invalid by reason that it infringes the implied freedom of political discussion recognised in Nationwide News Pty Ltd v Wills (50) and in Australian Capital Television Pty Ltd v The Commonwealth (51), it is, nonetheless, appropriate to indicate that, in our view, it does not. Freedom of political discussion is an indispensable concomitant of representative democracy which is embodied in the text, particularly ss 7 and 24, and in the structure of the Constitution. However, as was made clear in Nationwide News and Australian Capital Television, the freedom is not absolute (52). The limits of the freedom were expressed in different ways by those justices who constituted the majority in those cases (53) but there is nothing in those cases to warrant a conclusion that the freedom operates to strike down laws which curtail freedom of communication, where that curtailment is reasonably capable of being viewed as appropriate and adapted to furthering or enhancing the democratic process. And the nature and the source of the freedom are such that, in our view, the freedom does not operate to strike down laws of that kind, although it will not often be the case that a law which curtails freedom of political discussion will be capable of being viewed as appropriate and adapted to furthering or enhancing the democratic system. Perhaps, it could only be said of laws that regulate the conduct of persons in connection with elections as, for example, laws to "prevent intimidation and undue influence" (54).

19. One matter that furthers the democratic process is full, equal and effective participation in the electoral process. If a voter's ballot-paper is informal, as may be the case if it is not completed in accordance with s 240, he or she does not effectively participate in the electoral process. And 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. To the extent that s 329A operates to prevent conduct that is intended to encourage voters not to fill in a ballot-paper in accordance with s 240 and, thus, either vote informally or to vote in such a way that their ballot-papers are exhausted earlier than those of other voters, it is reasonably capable of being viewed as appropriate and adapted to furthering the democratic process.

20. So far as concerns ballot-papers which are deemed by the provisos to s 268(1)(c) to express a preference for all candidates, different considerations apply. Although the provisos operate to give effect to a ballot-paper which might otherwise be informal, the democratic process is enhanced if a voter's actual intention is capable of ascertainment from the ballot-paper and effect is given to that intention rather than an intention which he or she is deemed to have expressed. In relation to ballot-papers which fall within the provisos to s 268(1)(c), s 329A operates to proscribe conduct which might encourage voters to fill in their ballot-papers in a way that does not make their intentions manifest. Because it operates in this way, it is reasonably capable of being viewed as appropriate and adapted to the enhancement of the democratic process.

21. The question reserved should be answered "yes".

McHUGH J The question reserved for the decision of the Full Court of this Court in this suit is whether s 329A of the Commonwealth Electoral Act 1918 (Cth) ("the Act") is a "valid enactment of the Parliament of the Commonwealth". Section 329A provides:

"(1) A person must not, during the relevant period in

(2) In this section:

'publish' includes publish by radio or television."

Section 322 defines "relevant period" to mean "the period commencing on the issue of the writ for the election and expiring at the latest time on polling day at which an elector in Australia could enter a polling booth for the purpose of casting a vote in the election".

2. Section 240 provides:

"In a House of Representatives election a person shall mark

(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."

3. Section 240 is an essential element in the system of preferential voting, the system that the Act uses to determine which candidate is to be elected to the House of Representatives (55). Failure to comply with s 240 does not mean that a vote is always informal. In some limited circumstances (56), a ballot-paper may be admitted to the scrutiny and its preferences distributed, even though the paper does not fully comply with the directions contained in s 240. But the system of preferential voting, which the Act sets up, would break down if there was a widespread failure to comply with its terms. Section 329A is, therefore, a desirable, if not essential, protection of the preferential system of voting that the Act sets up for House of Representatives' elections. Its object is to prohibit persons from encouraging voters not to indicate their order of preference for each candidate.

4. The enactment of s 329A became necessary once the Parliament relaxed the circumstances in which a ballot paper, not marked in accordance with s 240, could be admitted to the scrutiny. But necessary or not, the plaintiff contends that s 329A does not prevent a person encouraging voters to leave blanks against the name of a candidate on a ballot-paper if the voter does not wish to vote for that candidate. Nor, says the plaintiff, does the section prevent a person from encouraging a voter to indicate his order of preference for the candidates for whom he or she wishes to vote and then giving the next consecutive number to all the candidates that the voter does not wish to vote for. If s 329A does prevent a person from encouraging a voter to mark his or her ballot-paper in those ways, says the plaintiff, it is beyond the constitutional power of the Commonwealth to enact such a provision.

The construction of s 240

5. During argument it emerged that, although the question reserved concerns the validity of s 329A, the plaintiff's real concern was the construction and validity of s 240 of the Act. The plaintiff alleges that s 329A is invalid if s 240 requires a voter to state a preference for a candidate for whom he or she does not wish to vote because, on that construction, s 240 is invalid. He contends that, because s 24 of the Commonwealth of Australia Constitution Act 1900 (UK) declares that the "House of Representatives shall be composed of members directly chosen by the people of the Commonwealth", a voter must be able to choose his or her candidate and cannot be forced to record a preference for a candidate whom he wishes to vote against. He submits therefore that, consistently with s 24 of the Constitution, s 240 should be given a construction that does not require a voter to record a preference vote for a candidate that the voter opposes. He contends that "implicit in 240 ... is that if you do not choose any of the candidates, leave it blank. Surely it could not be that you are required to pretend to vote for a candidate who you do not choose. How could that be an election?" The plaintiff argues that, if a voter wishes to vote for only one candidate, he or she is entitled to fill in all the other squares with a "2". If there are six candidates and the voter only wishes to vote for three, the voter can "write the numbers 1, 2, 3 ,4, 4, 4. Those are consecutive numbers." Somewhat inconsistently, the plaintiff does not object to a voter having to place a "4" against a candidate if he or she wishes to vote for only three of four candidates.

6. The plaintiff relies on the word "all" in s 240(b) to support his construction of the section. He argues that "'all' in section 240 requires you to number all candidates. Now, I believe that does not require you to use unrepeated numbers, that you are perfectly entitled to give the candidates you reject your last choice." It follows according to the plaintiff's argument that s 329A does not prevent a person from encouraging voters to give preferences only to the candidates for whom they wish to vote and to give the remaining candidates the next consecutive number.

7. However, I can see nothing in the use of the word "all" or in s 240 as a whole that supports the construction that the plaintiff seeks to put on the section. The plain meaning of the section is that the voter must place a number in each square, commencing with the number 1 and rising consecutively, so as to indicate the voter's order of preference for each candidate. A complete expression of preferences for all candidates is required irrespective of the difficulty that a voter may have in deciding the order of preference. A ballot-paper that gives the same number to more than one candidate is in breach of the directions that the section addresses to the voter, although that breach is not made punishable by fine or imprisonment.

8. Notwithstanding the use of the mandatory "shall", the better view is that s 240 does not impose a legally enforceable duty on the voter. It seems extremely unlikely that Parliament intended to impose such a duty on voters. The absence of any penalty for breach tells against such a conclusion although it is not conclusive. As Lord Normand pointed out in Cutler v Wandsworth Stadium Ltd (57):

"If there is no penalty and no other special means of

enforcement provided by the statute, it may be presumed that those who have an interest to enforce one of the statutory duties have an individual right of action."

If s 240 imposes a legally enforceable duty, perhaps the Electoral Commissioner is a person who can enforce it. But the practical difficulties of enforcing such a duty are so great that, combined with the absence of any penalty for breach, it seems extremely unlikely that the section was intended to impose a legal duty on a voter. The section should be read, therefore, as giving directions to a voter as to how the voter is to discharge the statutory duty to vote in a federal election.

9. Nevertheless, it seems clear that it is the legislative intention that, when voters discharge their duty to vote, they will comply with the directions. The efficacy of the system is dependent upon the directions being obeyed. It is true that, if a ballot-paper does not comply with s 240, it is not necessarily informal. Other sections of the Act enable a ballot-paper that does not comply with s 240 to be admitted to the scrutiny in some cases (58). But the words of s 240 direct each voter to express consecutive preferences for all candidates on the ballot-paper; it is a breach of that direction to mark a ballot-paper otherwise than in accordance with the section. The provisions of the Act which save the validity of a ballot-paper that does not comply with s 240 do not affect the Act's intention that voters are to follow the directions contained in that section. The purpose of the saving provisions is to further the franchise by protecting certain ballot-papers that do not comply with the directions, but the saving provisions provide no ground for concluding that the Act is indifferent as to whether or not voters comply with those directions. While failure to follow the directions contained in s 240 is not a breach of legal duty, the directions are obviously an essential part of the system of preferential voting established by Pt XVIII of the Act: if they are disobeyed, the preferential system of voting set up by Pt XVIII is undermined.

10. I cannot accept the plaintiff's argument that the voter would not be marking "his or her vote on the ballot-paper" within the meaning of s 240 if the voter indicated a preference for a candidate for whom the voter did not wish to vote. The object of s 240 is to require the voter to indicate an order of preference for each candidate and the section plainly regards such an indication of preference as a vote. Whether or not the voter wishes to give a candidate a preference or a vote is irrelevant.

11. The plaintiff's argument concerning the construction of s 240 must be rejected.

12. The next question is whether, consistently with s 24 of the Constitution, the Parliament can enact s 329A for the purpose of preventing a person from encouraging voters from filling in their ballot-papers otherwise than in accordance with the above construction of s 240. The plaintiff made it clear that he did not oppose compulsory voting in the sense of compelling a voter to attend a polling booth and place a ballot-paper in the ballot box. His complaint is that s 24 of the Constitution prevents the Parliament from requiring an elector to record a preference for a candidate against whom the voter wished to vote and that s 240 is therefore invalid if it requires a voter to record a preference for a candidate against whom he or she wished to vote.

13. Even if, contrary to my view, s 240 does not always (59) require a voter to express a preference for a candidate against whom he or she wishes to vote, it is clear that in some cases it does so. Thus, it plainly requires a voter to give a first preference vote to a candidate even if he or she does not wish to vote for any candidate. Further, if there are only two candidates and a voter wishes to place a "1" against one candidate and leave the other square blank, s 240 will deem the voter to have indicated an order of preference for each candidate even though that is not the voter's intention or preference (60). If the plaintiff's argument on the meaning of s 24 of the Constitution is correct, s 240 is invalid unless it can be read down.

14. If s 240 is valid, however, s 329A is valid. The Parliament has power under ss 51(xxxvi) and 31 of the Constitution to enact laws "relating to elections" for the House of Representatives and that power extends to preventing persons from interfering with or undermining the electoral system that Parliament has chosen for such an election (61). If a ballot-paper is not completed in accordance with the system ordained by the Parliament, the effectiveness of an election under that system is undermined. The system is as effectively undermined by filling in a ballot-paper in a way that does not indicate the voter's complete order of preferences as it is by a vote that is wholly informal. Because the object of s 329A is to prevent the preference system of voting from being undermined, it is a law with respect to elections for the purpose of s 51(xxxvi) and s 31 of the Constitution and within the Parliament's power to enact.

15. It is not to the point in considering the validity of s 329A that breach of s 240 is not an illegal act, that in some instances a ballot-paper that does not comply with that section may be admitted to the scrutiny, or that in certain instances the operation of the Act will result in an order of preference for every candidate being indicated even if a square is left blank. What is to the point is that encouraging persons to fill in a ballot-paper otherwise than in accordance with s 240 undermines the system of voting which Pt XVIII of the Act sets up. That system requires the voter to express his or her complete order of preferences in respect of the candidates. That is to say, the system requires the voter to place the number "1" in the square opposite his or her first choice, the number "2" in the square opposite his or her second choice and so on until every square is consecutively numbered. If a person is encouraged to place a "1" against one candidate and a "2" against all other candidates, the voter does not indicate the complete order of preference required by s 240, and the policy of the Act is undermined. If the Parliament can validly enact a system of voting under which voters are to indicate their complete order of preferences for candidates by marking the ballot in a particular way to the exclusion of other ways, it can prohibit people from encouraging voters to disregard the system.

Langer v Commonwealth [1996] HCA 43;

At a glance

Court

Decision date

Before

Source

Judgment (373 paragraphs)

Langer v Commonwealth [1996] HCA 43; (1996) 186 CLR 302 (20 February 1996)

Parties

Legislation Cited (8)

Cases Cited (15)