Muldowney v South Australia

High Court of Australia|1996-04-24|Before: Brennan CJ, Gummow JJ, Mason CJ

High Court of Australia Brennan CJ Dawson, Toohey, Gaudron, McHugh and Gummow JJ Muldowney v South Australia [1996] HCA 52

Answer the question in the case stated as follows: Is either of s 76 and s 126 of the Electoral Act 1985 SA invalid because it:

(a) exceeds a limit on the legislative power of the Parliament of the State of South Australia to be implied from the Constitution of the Commonwealth of Australia; or because it

Answer: Neither s 76 nor s 126(1) of the Electoral Act 1985 SA is invalid.

The plaintiff pay the defendants' costs of the case stated.

The plaintiff, an enrolled elector for the South Australian electoral Division of Mitchell under the Electoral Act 1985 SA (the Act), seeks declarations that each of ss 76 and 126 of the Act are invalid and certain other relief dependent on the making of those declarations. A case was stated by Mason CJ, reserving for the opinion of the Full Court the question:

Is either of s 76 and s 126 of the Electoral Act 1985 SA invalid because it:

(a) exceeds a limit on the legislative power of the Parliament of the State of South Australia to be implied from the Constitution of the Commonwealth of Australia; or because it

(b) is in any event beyond the legislative power of the Parliament of the State of South Australia?

This Court's jurisdiction is attracted as ss 76 and 126 of the Act are said to be invalid because they infringe upon a freedom of political discussion that is implied in the Commonwealth Constitution. The matter thus arises under the Commonwealth Constitution and involves its interpretation.

(1) In a Legislative Council election a voter shall mark his vote on his ballot paper as follows:

(a) by placing the number 1 in the square opposite the name of the candidate for whom he votes as his first preference, and consecutive numbers in the squares opposite the names of the remaining candidates so as to indicate the order of his preference for all candidates; or

(b) if the ballot paper contains a voting ticket square - by placing the number 1 in that square.

(2) In a House of Assembly election, a voter shall mark his vote on his ballot paper by placing the number 1 in the square opposite the name of the candidate for whom he votes as his first preference, and consecutive numbers in the squares opposite the names of the remaining candidates so as to indicate the order of his preference for all candidates.

(3) For the purposes of this Act, where a voter places a tick or a cross on a ballot paper, the tick or cross shall be deemed equivalent to the number 1.

A "voting ticket square" in s 76(1)(b) is a square printed on a ballot paper for a Legislative Council election indicating an order of preference for the candidates according to the order of preference contained in a "voting ticket". A voting ticket has to be in writing, lodged with the Electoral Commissioner or the relevant returning officer within seventy-two hours after the close of nominations (ss 4(1), 59, 63). In Legislative Council elections a voting ticket is adopted by an elector who marks the appropriate voting ticket square (s 92). In House of Assembly elections a voting ticket is adopted by simply placing the number 1 on the ballot paper opposite the name of the candidate in relation to whom a voting ticket has been lodged or by adding further preferences consistent with that ticket (s 93).

The mandatory term "shall mark" in s 76 cannot be construed to impose an enforceable obligation on an elector to mark a ballot paper. Although s 85(1) imposes a duty on every elector to "record his vote", ss 61(2) and 85(2) expressly permit an elector to leave the ballot paper unmarked. The true meaning of s 76 appears when it is read with s 94(1)(b) which makes informal a ballot paper if -

it has no vote indicated on it, or it does not indicate, in the manner required by this Act, the order of the voter's preference for all candidates in the election. Clearly a breach of the direction shall mark in s 76 has the consequence of rendering the ballot papers informal. Provisions supplementary to s 94(1)(b) direct that ballot papers that do not conform precisely to the requirements of s 76 are to be taken, in prescribed circumstances, to be formal. Ballot papers are not to be informal if only one square is left blank (s 94(3)), if the voting ticket provisions are engaged (s 94(4)), if a candidate for the Legislative Council whose name appears on the ballot paper dies before the poll (s 94(5)), or if the voter's intentions are otherwise clear (s 94(6)). The supplementary provisions result in the attribution of a voting preference for all candidates whose names appear on the ballot paper save a deceased candidate for the Legislative Council.

If s 76 be construed as containing merely the direction to be complied with in casting a formal vote, no ground of any substance was advanced for attacking its validity. The validity of s 76 must be upheld. That section, in combination with the compulsory voting requirement contained in s 85(1), provides the statutory context in which the validity of s 126 falls for consideration.

(a) that a person who is entitled to vote at an election should abstain from voting at the election;

(b) that a voter should mark a ballot paper otherwise than in the manner prescribed in section 76(1) or (2); or

(2) A person shall not distribute how-to-vote cards in relation to an election unless each card is marked so as to indicate a valid vote in the manner prescribed in section 76(1) or (2).

This section is designed to prevent the encouragement of electors to cast a vote which would be excluded from the scrutiny by reason of s 94(1)(b). The plaintiff does not challenge the validity of the whole of s 126. He attacks the validity of only pars (b) and (c) of s 126(1).

The attack is mounted on two bases: inconsistency with a freedom of political discussion implied in the Commonwealth Constitution and inconsistency with a similar freedom implied in the Constitution Act 1934 SA. In so far as the freedom of political discussion implied in the Commonwealth Constitution is invoked to invalidate s 126(1)(b) and (c), the attack on the validity of the section is misconceived. The freedom of political discussion implied in the Commonwealth Constitution [1] is implied to protect the working of the system of government of the Commonwealth prescribed by the Constitution [2] , but not to protect the working of the system of government prescribed by the Constitution of a State. Although the provisions of the Commonwealth Constitution prevail in the event of any inconsistency with the powers otherwise vested in the Parliament of a State, none of the provisions from which a freedom of political discussion is inferred affects the method of election of the members of a State Parliament [3] . Nor does s 126 affect the government of the Commonwealth. The validity of s 126 is therefore unqualified by the implied freedom of political discussion to be found in the Commonwealth Constitution.

Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211. 2. Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 235. 3. See McGinty v Western Australia (1996) 186 CLR 140 at 175-176, 189.

In any event, the restriction on freedom of discussion imposed by s 126 is not a restriction of the kind that, if imposed by a law of the Commonwealth, would be inconsistent with the freedom of political discussion implied in the Commonwealth Constitution. An argument based on that implied freedom was raised but not pressed in Langer v The Commonwealth [4] . In that case, the validity of s 329A of the Commonwealth Electoral Act 1918 Cth was impugned. Section 329A proscribed the publication of material with the intention of encouraging voters "to fill in a ballot paper otherwise than in accordance with s 240" which has an operation similar to s 76. The plaintiff sought to strike down s 329A so that he might be at liberty to encourage voters to cast a vote that would not have complied with s 240 but would still be counted in the scrutiny. The Commonwealth Electoral Act permitted, pursuant to certain saving provisions [5] , the casting of a valid vote in one of a number of forms that did not satisfy s 240 but, as s 240 was construed as the primary method of choosing members of the House of Representatives, s 329A was upheld as a valid protection of the primary method prescribed. In this case, s 76 together with the supplementary provisions in s 94 of the Act exhaust the permissible ways of casting a formal vote. The supplementary provisions allow comparatively narrow departures from the primary method of voting prescribed by s 76 of the Act. And so, the reasons which led to the upholding of the validity of s 329A in Langer would provide the reasons, mutatis mutandis, for upholding the validity of s 126(1)(b) and (c) of the Act.

(1996) 186 CLR 302. 2. ss 268(1)(c), 270(2), (3) of the Commonwealth Electoral Act.

Section 126, like s 329A of the Commonwealth Electoral Act, is a means of protecting the method which Parliament has prescribed for the election of members of Parliament - the Legislative Council and the House of Assembly of South Australia. The restrictions imposed on freedom of speech by s 126(1)(b) and (c) are an incident of that protection. In Langer [6] , I expressed the view that -

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. Section 126(1)(b) and (c), like s 329A of the Commonwealth Electoral Act, is reasonably capable of being regarded by Parliament as appropriate and adapted to the achieving of the legitimate legislative purpose of protecting the prescribed primary method of choosing members to sit in the respective Houses of Parliament of South Australia. Accordingly, if restrictions of the kind imposed by s 126(1)(b) and (c) were imposed by a law of the Commonwealth, they would not infringe the freedom of political discussion implied in the Commonwealth Constitution. 1. (1996) 186 CLR 302 at 318.

I turn to the Constitution (SA). It was conceded by the Solicitor-General for South Australia that there is a constitutionally entrenched [7] limitation upon State legislative power [8] "in like manner to the Commonwealth Constitution" and that that limitation precluded interference by an ordinary law [9] with freedom of discussion about political affairs. However, the Solicitor-General submitted that, since s 126 did not infringe that freedom of discussion, its enactment did not have to satisfy the requirements of the entrenching provisions. (In fact, the manner and form requirements of the entrenching provisions were not satisfied.)

See ss 8, 10A and 88 of the Constitution Act. 2. ss 4, 11, 27, 32 and Pt 5 of the Constitution Act. 3. That is, a law not enacted in compliance with the entrenched manner and form requirements contained in one or more of the "entrenching" sections: see fn 58.

Whether the Solicitor-General's concession was correctly made or not - a question which it is unnecessary to examine - the conceded freedom of discussion about political affairs is no wider in scope in relation to the government of South Australia than the freedom of political discussion implied in the Commonwealth Constitution in relation to the government of the Commonwealth. As s 126(1)(b) and (c) does not impose a restriction of a kind that would be invalid under the Commonwealth Constitution, it does not impose a restriction that is invalid under the Constitution (SA).

I would therefore answer the question reserved as follows:

Neither s 76 nor s 126(1) of the Electoral Act 1985 SA is invalid.

The question stated by Mason CJ for the consideration of the Court is as follows:

Is either of s 76 and s 126 of the Electoral Act 1985 SA invalid because it:

(a) exceeds a limit on the legislative power of the Parliament of the State of South Australia to be implied from the Constitution of the Commonwealth of Australia; or because it

(b) is in any event beyond the legislative power of the Parliament of the State of South Australia?

It transpired during argument that the plaintiff challenged the validity of s 126(1) and not s 126(2) of the Electoral Act 1985 SA (the Act). Section 126(1) provides:

(a) that a person who is entitled to vote at an election should abstain from voting at the election;

(b) that a voter should mark a ballot paper otherwise than in the manner prescribed in section 76(1) or (2); or

(1) In a Legislative Council election a voter shall mark his vote on his ballot paper as follows:

(b) if the ballot paper contains a voting ticket square - by placing the number 1 in that square.

(3) For the purposes of this Act, where a voter places a tick or a cross on a ballot paper, the tick or cross shall be deemed equivalent to the number 1.

The "voting ticket square" referred to in s 76(1)(b) enables a voter, by placing the number 1 in the square, to record his or her preferences for all candidates in a Legislative Council election in accordance with a voting ticket which has been registered before the election, without placing numbers in any other square. Also, under s 93(2) where, in relation to a House of Assembly election, a voter marks a ballot paper by placing the number 1 in the square opposite the name of a particular candidate and indicates no further preference and there is one voting ticket registered for the purposes of the election in relation to that candidate, the ballot paper shall be deemed to have been marked in accordance with that voting ticket. A voting ticket must, under s 63(4)(a), indicate by consecutive numbers commencing with the number 1 an order of preference for all candidates, that is to say, must constitute a full preferential vote.

The Act makes voting compulsory. Under s 85(7), every elector who fails to vote at an election without a valid and sufficient reason for the failure shall be guilty of an offence. But the offence does not consist of failing to cast a formal vote. Section 94(1)(b) provides that a ballot paper is informal if it has no vote indicated on it, or does not indicate, in the manner required by the Act, the order of the voter's preference for all candidates in the election. There are provisions [10] to save from informality votes not cast in accordance with s 76(1) and (2) but any votes saved must be read as full preferential votes. Section 85(1) states that it is the duty of every elector to record his or her vote at each election in a district for which he or she is enrolled. Yet s 85(2) says that an elector who leaves the ballot paper unmarked but who otherwise observes the formalities of voting is not in breach of the duty imposed by sub-s (1). Section 61(2) requires the ballot paper to contain the words: "You are not legally obliged to mark the ballot paper." Practically speaking, it would seem that an elector who goes through the motions of casting a vote will escape prosecution under s 85(7), though it is open to argument that an elector who marks his or her ballot paper otherwise than in accordance with s 76 fails to comply with s 85(7) because the ballot paper will be informal and incapable of allowing a vote to be recorded.

The most important of these are ss 76(3), 94(3), (6).

It is unnecessary to consider in any more detail the system of voting for which the Act provides, for it is common ground that it provides for a full preferential system. That is to say, in order to cast a formal vote, a voter must in one way or another express consecutively his or her preference for all candidates.

Sections 11 and 27 of the Constitution Act 1934 SA provide that the members of the Legislative Council and the House of Assembly shall be elected by the inhabitants of the State legally qualified to vote. These provisions do not expressly provide that the members be directly chosen by the people as do ss 7 and 24 of the Commonwealth Constitution, but in effect they are the same because they provide for elections by inhabitants eligible to vote and elections necessarily require a choice to be made by voters. And a choice is nevertheless a choice notwithstanding that a voter is required to make it against his wishes. A full preferential system of voting which is compulsory may require a voter to express a preference, and so cast a vote, for a candidate in favour of whom that voter would rather not cast a vote at all, but that is to do no more than require the voter to make a choice within the confines of a particular electoral system [11] . It was held by this Court in Langer v The Commonwealth [12] that a compulsory preferential system of voting satisfies the requirements of the Commonwealth Constitution. It follows that such a system must satisfy the requirement in the Constitution Act SA that members of parliament be elected by the inhabitants of the State eligible to vote. Thus s 76 of the Act is a valid provision.

See Judd v McKeon (1926) 38 CLR 380 at 383, 385; Lubcke v Little [1970] VR 807; Faderson v Bridger (1971) 126 CLR 271; Krosch v Springell; Ex parte Krosch [1974] Qd R 107; Kelly v Wolstenholme (1991) 4 ACSR 709 at 712. 2. (1996) 186 CLR 302.

In McGinty v Western Australia [13] I agreed, for the reasons given by the Chief Justice, that the Commonwealth Constitution provides only for Federal elections and its provisions in that regard, including any implications to be drawn from them, do not prescribe the mode of State elections. That does not, of course, mean that the Commonwealth provisions do not extend to the States, but they do so in relation to Federal elections and not State elections. Nevertheless the plaintiff contends that the so-called guarantee of freedom of political communication, which has been found in other cases [14] to be implied in the concept of representative democracy or representative government, extends to the States so as to invalidate s 126 of the Act. Alternatively, the plaintiff submits that a similar freedom is to be found by implication from the system of representative government ordained by ss 11 and 27 of the Constitution Act SA.

(1996) 186 CLR 140. 2. See Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211; Cunliffe v The Commonwealth (1994) 182 CLR 272.

I have elsewhere expressed my inability to accept that a guarantee of freedom of communication arises from the provisions of the Commonwealth Constitution [15] . The same reasoning would lead to the same conclusion in relation to the Constitution Act SA. That is to say, neither the minimal requirements of representative government laid down by the Commonwealth Constitution nor those laid down by the Constitution Act SA provide any foundation for the implication of a free-standing guarantee of freedom of communication. Apart from those minimal requirements, the system of representative government, including freedom of communication, which is to prevail in the Commonwealth and the State is left to the respective parliaments.

See, eg, Cunliffe v The Commonwealth (1994) 182 CLR 272 at 360-364; McGinty v Western Australia (1966) 186 CLR 140 at 181-184.

However, both the Commonwealth Constitution and the Constitution Act SA provide for elections for the purpose of affording to the people an opportunity to choose their representatives in parliament and, as I have previously said, the choice must be a true choice, that is to say, a choice made with access to the available alternatives. Those alternatives include not only the candidates and their policies, but also, as is clear from what I said in Langer v The Commonwealth, the available means of casting a formal vote. The result is, in my view, that neither the Commonwealth parliament nor the South Australian parliament, save in the latter case in accordance with any applicable entrenching provisions [16] , can validly legislate in a manner which is incompatible with the exercise by electors of a genuine choice. In this respect, it is plain that the relevant provisions prescribing the choice are ss 11 and 27 of the Constitution Act SA and not the corresponding provisions (ss 7 and 24) of the Commonwealth Constitution. It is unnecessary to consider further the entrenching provisions in the Constitution Act as no argument based upon those provisions was advanced.

In Langer v The Commonwealth [17] , it was my view that s 329A of the Commonwealth Electoral Act 1918 Cth, which prohibited the encouragement of voters to exercise a right given them by that Act to cast a form of optional or selective preferential vote, was inconsistent with s 24 of the Commonwealth Constitution, that being the section which provides for the direct choice by the people of members of the House of Representatives. It was my view that s 329A prevented, or at the very least discouraged, the communication to electors of an alternative mode of voting which was available to them under that Act. It was inconsistent with their constitutional right to exercise a genuine, that is to say informed, choice because of its tendency to deprive them of information necessary for the purpose of making such a choice.

This case is different. The Electoral Act SA provides for a full preferential system of voting and contains no alternative method in the form of an optional or selective preferential system. The effect of s 126(1) is merely to prohibit persons from publicly advocating that a person should so mark his or her ballot paper, or refrain from marking it, in such a way as to render it informal and thus ineffective for the purpose of casting a vote. Of course, provided a voter complies with s 85, he or she does not have to cast a formal vote. But if a voter chooses not to cast a formal vote he or she is opting out of the election in the sense that he or she is refusing to participate in the selection of a candidate. It cannot, in my view, be incompatible with the exercise of a genuine choice by a voter that others be prohibited from encouraging that voter to do those things which will render a purported choice ineffective. Unlike the situation in Langer, s 126(1) does not have the aim of discouraging electors from exercising an option which is available to them in the casting of a formal vote but is designed to ensure that electors are not encouraged to cast an ineffective vote.

It is for these reasons that s 126(1) is, in my view, valid. I would answer the question in the case stated by saying that neither s 76 nor s 126(1) of the Act is invalid.

The Electoral Act 1985 SA (the Act) makes voting for the Legislative Council and the House of Assembly compulsory. It does so by providing that every elector who fails to vote at an election without a valid and sufficient reason for the failure commits an offence (s 85(7)). It is a valid and sufficient reason if an elector was ineligible to vote at the election, was absent from the State on polling day or had a conscientious objection to voting (s 85(8)).

It is not an offence to cast an informal vote. A ballot paper is informal if no vote is indicated on it or if the ballot paper does not indicate, as required by the Act, the order of the voter's preference for all candidates in the election. The Act contains a number of provisions which are aimed at avoiding informality in the case of votes not cast in accordance with s 76(1) and (2) of the Act [18] . Any votes so saved are treated as full preferential votes. Thus the voting system provided by the Act is, as other judgments explain, a full preferential system.

While it is the duty of every elector to record a vote at each election in a district for which he or she is enrolled (s 85(1)), an elector who leaves a ballot paper unmarked but who otherwise observes the formalities of voting does not act in breach of that duty (s 85(2)). Indeed, a ballot paper must include a statement: "You are not legally obliged to mark the ballot paper" (s 61(2)). Since the basis of the plaintiff's attack on s 76 of the Act is that the section requires a voter, against his or her wishes, actually to cast a vote, the attack must fail. Counsel for the plaintiff accepted this as inevitable if the construction of s 76 contended for was not accepted.

In Langer v The Commonwealth [19] the Court held that a compulsory preferential system of voting met the requirements of the Commonwealth Constitution that the Senate and the House of Representatives be "directly chosen by the people" [20] . The Constitution Act 1934 SA provides that the Legislative Council and the House of Assembly shall consist of twenty-two members and forty-seven members respectively, "elected by the inhabitants of the State legally qualified to vote" [21] . In either case inherent is the idea that the "people" or the "inhabitants" will choose between those standing for election. Thus the reasoning which led the Court to conclude in Langer that the Commonwealth provision was valid inevitably leads to the conclusion that the impugned South Australian provision is valid.

(1996) 186 CLR 302. 2. Commonwealth Constitution, ss 7, 24. 3. Constitution Act, ss 11, 27.

The plaintiff also challenges the validity of s 126 of the Act, though only in relation to s 126(1)(b) and (c) which makes it an offence publicly to advocate:

(b) that a voter should mark a ballot paper otherwise than in the manner prescribed in section 76(1) or (2); or

He does so by reference to the right of the people of South Australia to express their political opinions and consequentially an implied freedom of political expression.

The implication of the freedom to communicate on political matters under the Commonwealth Constitution was identified in Nationwide News Pty Ltd v Wills [22] and in Australian Capital Television Pty Ltd v The Commonwealth [23] as a freedom engendered by the concept of representative democracy or representative government to be found in the Constitution. In Langer, Gaudron J and I held that this freedom was not infringed by a law which was reasonably capable of being viewed as appropriate and adapted to the furtherance or enhancement of the democratic process called for by the Constitution. It is unnecessary to repeat what is set out in that joint judgment.

The Solicitor-General for South Australia conceded that when various provisions of the Constitution Act are read together an implication of representative government is to be found. He mentioned, in particular, ss 4, 11, 27, 32 and Pt 5 (ss 76-88). Section 4 of the Constitution Act provides that the Parliament of South Australia shall be constituted by a Legislative Council and a House of Assembly. Sections 11 and 27 have been mentioned earlier in these reasons. Section 32 is concerned with the division of the State into House of Assembly electoral districts through the machinery of the Electoral Districts Boundaries Commission. The Commission is established by s 78, found in Pt 5. Also within Pt 5 is s 88, an entrenching provision that no provision of s 32 or of Pt 5 "shall be repealed, suspended or amended", except as provided in the section. Section 88(2) and (3), also within Pt 5, identify certain principles of the electoral process which may not be offended against except consequent upon approval of the bill by the electors at a referendum. Reference may be made to s 8 which requires an absolute majority of both the Legislative Council and the House of Assembly to "repeal, alter, or vary" any of the provisions of the Constitution Act, and also to s 10A which requires a referendum before either House may be abolished or the powers of the Legislative Council altered.

In McGinty v Western Australia [24] I held that the Constitution (WA) contains an implication of representative democracy. I shall not repeat the considerations that led to that conclusion except to say that I found the implication within the constitutional framework of Western Australia and not by reason of any such implication imposed by the Commonwealth Constitution itself, in particular not by s 106 of thatConstitution. Equally, if any such implication is to be found in the present case, it is not by reason of the Commonwealth Constitution.

In view of the concession made by the Solicitor-General it is unnecessary to explore the constitutional framework of South Australia though it contains elements found within the constitutional framework of Western Australia and which led to the implication of representative democracy I held to exist there. In any event the concession made here is an implication of representative government.

In Theophanous v Herald & Weekly Times Ltd [25] Mason CJ, Toohey and Gaudron JJ said:

Because the system of representative government depends for its efficacy on the free flow of information and ideas and of debate, the freedom extends to all those who participate in political discussion. The implication of freedom of communication which springs from representative government does not extend to freedom of expression generally [26] . The freedom exists to further the democratic process. Can it be said that a law, whereby a person who publicly advocates that a person should abstain from voting at an election or that a voter should mark a ballot paper otherwise than in accordance with s 76 commits an offence, is struck down by the implied freedom upon which the plaintiff relies? 1. (1994) 182 CLR 104 at 122. 2. Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 121.

The intention of s 126 is clear enough. It is to prohibit public conduct aimed at encouraging voters not to vote or, if they do vote, to vote informally by not marking their ballot papers or by marking them in such a way as to ensure their informality. Curiously, the plaintiff does not challenge the validity of s 126(1)(a) which is a prohibition against publicly advocating that those entitled to vote should abstain from voting. If par (b) or (c) is invalid it is hard to see why par (a) is not likewise invalid. However the plaintiff has confined his attack to pars (b) and (c) and it is necessary to consider that attack independently of the existence of par (a).

The emphasis placed by the plaintiff on the implied freedom of communication isolates that freedom from the system of representative government which it serves to maintain. A law which is reasonably capable of being viewed as appropriate and adapted to maintaining that system is unlikely to be struck down by the implied freedom. The restrictions imposed by s 126(1)(b) and (c) are incidental to the protection of the full preferential system of voting which the legislature has chosen. What is prohibited is public (not private) advocacy aimed at bringing about an ineffective vote. In the particular circumstances of this legislation it does not advance the plaintiff's case to rely upon s 85(2) of the Act whereby an elector who leaves a ballot paper unmarked is nevertheless not in breach of the duty to record a vote imposed by sub-s (1). In the context of a secret ballot the position could hardly be otherwise. Without such a provision the secrecy of the ballot might be seriously invaded.

The question for the Court is not the wisdom or desirability of the provisions challenged by the plaintiff. The question is one of their validity, to be answered by reference to the principles discussed in these reasons. By reference to those principles, the question stated for the consideration of the Court should be answered: Neither s 76 nor s 126(1) of the Electoral Act 1985 SA is invalid.

The relevant legislative provisions and the question stated for the consideration of the Full Court are set out in the judgment of Gummow J. It emerged during the course of argument that there was no challenge to the validity of s 126(2) of the Electoral Act 1985 SA (the Act) and the case can therefore be approached on the basis that the question is, for practical purposes, confined to the validity of ss 76 and 126(1) of the Act.

I agree with Gummow J, for the reasons that his Honour gives, that, when read with other provisions of the Act, s 76 does not require a voter to cast a vote by marking his or her ballot paper and, thus, there is no foundation for the plaintiff's argument that s 76 is invalid.

I agree also with his Honour that s 126(1) of the Act infringes neither the freedom of political discussion which is an indispensable concomitant of representative democracy as embodied in the text and structure of the Australian Constitution, nor any like freedom, if there be such, to be found in the text or structure of the Constitution (SA). I shall state my reasons for so concluding.

The purpose of the freedom to discuss political matters identified in Nationwide News Pty Ltd v Wills [27] and in Australian Capital Television Pty Ltd v The Commonwealth [28] is to maintain the democratic processes of the Commonwealth of Australia, not those of its States. As I explained in Langer v The Commonwealth [29] , which raised similar issues and was heard immediately following the present case, the nature and the source of the freedom are such that it does not operate to strike down laws which curtail freedom of communication in those limited circumstances where that curtailment is reasonably capable of being viewed as appropriate and adapted to the furtherance, or enhancement, of the democratic process which the Australian Constitution requires for elections for the Parliament of the Commonwealth. As Mason CJ pointed out in relation to federal elections in Australian Capital Television, "Parliament may regulate the conduct of persons with regard to elections so as to prevent intimidation and undue influence, even though that regulation may fetter what otherwise would be free communication" [30] . Equally, although, perhaps, less obviously, the freedom which inheres in the Australian Constitution and which extends to matters within the province of the States [31] does not operate to strike down a law which curtails freedom of communication in those limited circumstances where that curtailment is reasonably capable of being viewed as appropriate and adapted to furthering or enhancing the democratic processes of the States. At least that is so if it does not interfere with the democratic processes of the Commonwealth.

(1992) 177 CLR 1. 2. (1992) 177 CLR 106. 3. (1996) 186 CLR 302. 4. Australian Capital Television (1992) 177 CLR 106 at 142-143. 5. See Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 75-76, per Deane and Toohey JJ; Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 142, per Mason CJ; at 168-169, per Deane and Toohey JJ; at 215-217, per Gaudron J; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 122, per Mason CJ, Toohey and Gaudron JJ; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 232, per Mason CJ, Toohey and Gaudron JJ; at 257, per Deane J.

One reason why the freedom does not strike down laws which, in the sense earlier indicated, further or enhance the democratic processes of the States is the interrelationship of the powers of the States and the Commonwealth. As I pointed out in Australian Capital Television, "the exercise or non-exercise by a State of its powers may be a factor influencing decisions as to the exercise of Commonwealth power" [32] . In a context where the legislative power of the Commonwealth is to be exercised by a democratically elected legislature and its executive power is, in the main, entrusted to democratically elected Ministers of State [33] , it is obviously in the interests of the Australian people for State legislative and executive powers to be exercised, respectively, by democratically elected legislatures and democratically elected Ministers. That interest is such that it necessarily requires that the freedom implied from the text and structure of the Australian Constitution does not operate to strike down laws which, although they fetter freedom of communication, are capable of being viewed as operating to further the democratic processes of the States provided, as already indicated, they do not interfere with the democratic processes of the Commonwealth.

Australian Capital Television (1992) 177 CLR 106 at 216. 2. Note that s 64 of the Australian Constitution provides, amongst other things, that "[a]fter the first general election no Minister of State shall hold office for a longer period than three months unless he or she becomes a senator or a member of the House of Representatives".

There is a second and, perhaps, more important reason why the freedom which exists for the purpose of maintaining the democratic processes of the Commonwealth does not strike down laws which operate, in the sense earlier indicated, to further or to enhance the democratic processes of the States. The States are constituent parts of the federation which was brought into existence as a free and democratic society. As Barwick CJ pointed out in Victoria v The Commonwealth [34] , the States owe their existence, as States, to the Australian Constitution and their colonial Constitutions were continued by the Australian Constitution so as to become State Constitutions, but subject to the Australian Constitution. Their subjection to the Australian Constitution is effected by s 106 which provides:

The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State. 1. (1971) 122 CLR 353 at 371. See also New South Wales v The Commonwealth (1975) 135 CLR 337 at 372, per Barwick CJ; China Ocean Shipping Co v South Australia (1979) 145 CLR 172 at 182, per Barwick CJ; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 164, per Deane J.

It is now settled that the federal character of the Australian Constitution operates to limit the legislative power of the Parliament of the Commonwealth "in the interest of preserving the existence of the States as constituent elements in the federation" [35] . In consequence, the Parliament can neither legislate to discriminate by "the placing on the States of special burdens or disabilities" [36] nor enact "laws of general application which operate to destroy or curtail the continued existence of the States or their capacity to function as governments" [37] .

Re Lee; Ex parte Harper (1986) 160 CLR 430 at 453, per Mason, Brennan and Deane JJ. 2. Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188 at 231. See also Queensland Electricity Commission v The Commonwealth (1985) 159 CLR 192. 3. Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188 at 231.

It must be accepted, following the decisions in Nationwide News and Australian Capital Television, that the States are not merely constituent elements of the federation, but constituent elements of a federal democracy. This, when considered in conjunction with the subjection of the constitutions of the States to the Australian Constitution, requires that, in the interest of preserving the democratic nature of the federation, the States be and remain essentially democratic. And it also requires that the freedom of political discussion identified in Nationwide News and in Australian Capital Television does not operate to strike down laws which, in the sense earlier indicated, operate to further or enhance the democratic processes of the States, provided they do not interfere with the democratic processes of the Commonwealth.

It is not necessary to consider the plaintiff's argument that there is to be discerned in the Constitution (SA) a freedom of political discussion of the kind recognised in the Australian Constitution in Nationwide News and Australian Capital Television. If there is such a freedom, its nature and source are also such as to compel the conclusion that it does not strike down laws which, in the sense earlier indicated, operate to further or enhance the democratic processes of South Australia.

A law which operates to promote full, equal and effective participation in the electoral process is a law which is clearly capable of being viewed as operating to further the democratic process. Paragraphs (a) and (c) of s 126(1) of the Act operate in that way. They operate to prevent conduct which, in the ordinary course, might encourage voters not to participate in the election: in the case of par (a), by abstaining from voting or, more accurately, from not observing the formalities associated therewith [38] ; in the case of par (c), by not marking their ballot papers.

Pursuant to s 85(1) of the Act, "it is the duty of every elector to record his vote at each election in a district for which he is enrolled". However, s 85(2) provides that "[a]n elector who leaves the ballot paper unmarked but who otherwise observes the formalities of voting is not in breach of the duty imposed by subsection (1)".

The position with respect to s 126(1)(b) is, perhaps, less clear. That paragraph prevents a person from publicly advocating "that a voter should mark a ballot paper otherwise than in the manner prescribed in section 76(1) or (2)". It is convenient to set out the terms of those subsections:

(1) In a Legislative Council election a voter shall mark his vote on his ballot paper as follows:

(b) if the ballot paper contains a voting ticket square - by placing the number 1 in that square.

Subject to one matter, s 76 of the Act is to similar effect, and operates within much the same structure, as s 240 of the Commonwealth Electoral Act 1918 Cth (the Commonwealth Act). That latter provision was considered in Langer. There is a significant difference between the voting system directed by s 76 of the Act and that directed by s 240 of the Commonwealth Act in that the latter permits votes to be exhausted [39] and, thus, permits of a limited form of optional preferential voting in a House of Representatives election for which there are three or more candidates. Section 76 maintains a system of full preferential voting but, s 94(6) of the Act apart, it does so by deeming certain ballot papers to express an order of preference for all candidates. By s 94(6), if the voter's intention is clear, "the ballot paper is not informal and shall be counted as if the voter's intention had been properly expressed in the manner required by [the] Act".

By s 274(8) of the Commonwealth Act, a ballot paper is to be "set aside as exhausted" if it expresses no preference for any candidate who has not been excluded from the count during the process of distributing preferences.

The full preferential system of voting is maintained by a series of steps set out in s 94 of the Act. For present purposes, it is sufficient to note that, by s 94(1)(b), a ballot paper that "does not indicate, in the manner required by [the] Act, the order of the voter's preference for all candidates in the election" is informal unless it satisfies the conditions in one or other of sub-ss (3) and (4) and (6). It is unnecessary to refer further to sub-s (6). It is provided by s 94(3) that a ballot paper which "indicates by consecutive numbers commencing with the number 1 [an] order of preference for all candidates except one" is not informal and it is "presumed that the candidate for whom no preference is expressed is the one least preferred by the voter and that the voter has accordingly indicated the order of his preference for all candidates". By s 94(4), "[a] ballot paper to which effect can be given under the provisions of [Pt X, Div II] relating to registered voting tickets" is not informal.

Leaving aside the situation in which a voter places the number 1 in a voting ticket square in accordance with s 76(1)(b) of the Act, the effect of the provisions of Pt X, Div II relating to registered voting tickets so far as concerns Legislative Council elections is that, by s [40] , certain other ballot papers are deemed to indicate an order of preference in accordance with a registered voting ticket. And, so far as concerns Legislative Assembly elections, sub-ss (2) and (4) of s 93 [41] operate so that a ballot paper which has the number 1 against the name of a candidate who has registered a voting ticket is deemed to express the order of preference of that voting ticket, provided that, if any further preference is indicated on the ballot paper, it is consistent with the order of preference of that voting ticket. If there are two registered voting tickets, the effect of s [42] , in the case of Legislative Council elections, and of s [43] , in the case of Legislative Assembly elections, is that half are deemed to express an order of preference in accordance with one ticket and half in accordance with the other, with the effect of the remaining ballot paper being determined by lot if the number of ballot papers is not even.

Section 92(4) provides that, in a Legislative Council election: "Where a voter marks a ballot paper by placing the number 1 in a voting ticket square but also indicates preferences for individual candidates, the following provisions apply: (a) if the indication of preferences for individual candidates would, if it stood alone, constitute a valid vote, that indication of preferences shall be taken to be the vote of the voter and the mark in the voting ticket square shall be disregarded; (b) if the indication of preferences for individual candidates would not, if it stood alone, constitute a valid vote, it shall be disregarded and the vote of the voter shall be taken to have been expressed by the mark in the voting ticket square." 2. Section 93(2) and (4) are as follows: "(2) Where - (a) a voter marks a ballot paper by placing the number 1 in the square opposite the name of a particular candidate and indicates no further preference; and (b) there is 1 voting ticket registered for the purposes of the election in relation to that candidate, the ballot paper shall be deemed to have been marked in accordance with that voting ticket." "(4) Where - (a) a voter marks a ballot paper by placing the number 1 in the square opposite the name of a particular candidate and proceeds to indicate further preferences by consecutive numbers; (b) there is 1 voting ticket registered for the purposes of the election in relation to that candidate; (c) the preferences indicated by the voter are consistent with that voting ticket; and (d) the ballot paper would, apart from this subsection, be informal, the ballot paper shall be deemed to have been marked in accordance with that voting ticket." 3. Section 92(3) is to the same effect as s 93(3), the relevant portion of which is set out in fn (94). 4. Section 93(3) relevantly provides that: "the ballot paper shall be grouped with other ballot papers marked in the same manner and - (c) if the number of those ballot papers is an even number - half of them shall be deemed to have been marked in accordance with one ticket and half in accordance with the other; or (d) if the number of those ballot papers is not an even number - (i) one of the ballot papers shall be deemed to have been marked in accordance with whichever of the 2 tickets is determined by lot by the returning officer; and (ii) half the remainder (if any) shall be deemed to have been marked in accordance with one ticket and half in accordance with the other."

Putting aside ballot papers which are deemed to express an order of preference for all candidates, s 126(1)(b) operates to prevent conduct which, in the ordinary course, might encourage voters to fill in their ballot papers in such a way that they are informal and excluded from the count and, in that event, it is a law which is clearly capable of being viewed as operating to further the democratic process. And that is so even if it transpires that a voter's intention is clear and his or her ballot paper is rendered formal by s 94(6) of the Act.

So far as concerns ballot papers which are deemed to express an order of preference for all candidates, other considerations apply. In some cases, the voter may, in fact, wish his or her ballot paper to be treated as expressing the order of preference which it is presumed to have. But that is not necessarily so. A voter may prefer not to have his or her ballot paper counted than to have it counted on the basis that it expresses even a last preference for a candidate against whose name he or she does not place any number. And even if it could be assumed that a voter wished his or her ballot paper to be treated as expressing an order of preference in accordance with a registered voting ticket, it may not be counted that way if there are two registered voting tickets. If there are two registered voting tickets, the manner in which preferences are distributed will depend on chance.

It is clearly in the interests of the democratic process that a voter's actual intention be capable of ascertainment from his or her ballot paper, and that effect be given to that intention and not some intention which he or she is deemed to have, particularly if the effect given to the ballot paper may depend on chance. So far as concerns ballot papers which are deemed to express an order of preference for all candidates, s 126(1)(b) operates to encourage voters to fill in their ballot papers in a way that makes their voting intentions manifest and ensures that ballot papers will be counted in a way that gives effect to their intentions. Because it operates in this way in relation to those ballot papers, s 126(1)(b) is, in that respect, also reasonably capable of being viewed as appropriate and adapted to furthering the democratic process.

Given that there was no challenge to the validity of s 126(2) of the Act, and that it is unnecessary to consider whether there is a separate freedom of discussion of political matters inhering in the Constitution (SA), the appropriate course is to answer the question in the case stated by saying that neither s 76 nor s 126(1) of the Act is beyond the legislative power of the Parliament of South Australia.

Pursuant to s 18 of the Judiciary Act 1903 Cth Mason CJ stated for consideration of the Full Court the following question:

Is either of s 76 and s 126 of the Electoral Act 1985 SA invalid because it:

(a) exceeds a limit on the legislative power of the Parliament of the State of South Australia to be implied from the Constitution of the Commonwealth of Australia; or because it

(b) is in any event beyond the legislative power of the Parliament of the State of South Australia?

In the course of argument concerning the proper construction of s 76 of the Electoral Act 1985 SA (the Act), it became apparent that s 76 was said to be invalid only upon the hypothesis that a particular construction be adopted. Senior counsel for the plaintiff submitted:

The challenge to section 76 could only succeed, if at all, if section 76 dominates the Act and requires the voter, not only to come to the polling booth and go through the formalities, but actually to cast a vote even though that vote might be not in accordance with what the elector would like to do.

However, when s 76 is read with other provisions of the Act, particularly s 85, it is apparent that s 76 does not have this operation. Accordingly, the precondition for the asserted invalidity does not arise. I turn to explain why this is so.

By s 4(1) of the Act, the term "elector" is defined as follows:

"elector" means a person whose name appears on a roll as an elector (not being a person under the age of 18 years who is provisionally enrolled) and includes a person whose name should appear on a roll as an elector but has been, by error, omitted from the roll. The term "roll" means an electoral roll kept under the Act (s 4(1)).

Section 76 comprises Div III of Pt IX of the Act and is headed " Indication of Vote ". The section states:

(1) In a Legislative Council election a voter shall mark his vote on his ballot paper as follows:

(b) if the ballot paper contains a voting ticket square - by placing the number 1 in that square.

(3) For the purposes of this Act, where a voter places a tick or a cross on a ballot paper, the tick or cross shall be deemed equivalent to the number 1.

The term "voting ticket square" used in par (b) of s 76(1) is defined in s 4(1) as meaning a square, "printed on a ballot paper for a Legislative Council election above the name of a candidate or the names of candidates forming a group", which indicates that "a voting ticket" or "voting tickets" have been registered in relation to that candidate or group. In turn, the expression "voting ticket" is dealt with as follows in s 4(1): "voting ticket" means a written statement of a particular order in which a voter might allocate preferences in an election, being a statement for use under this Act in interpreting the votes of voters who -

(a) in relation to a Legislative Council election - choose to vote in accordance with the voting ticket;

(b) in relation to a House of Assembly election - do not indicate an order of preference covering all candidates.

Ballot papers shall be in a form prescribed by regulation (s 61(1)). However, s 61(2) requires the inclusion on each ballot paper at or near the top thereof and in clearly legible print of the statement:

You are not legally obliged to mark the ballot paper. Further, whilst s 85(1) states that "it is the duty of every elector to record his vote at each election in a district for which he is enrolled", this is expressed to be subject to s 85(2). That states: An elector who leaves the ballot paper unmarked but who otherwise observes the formalities of voting is not in breach of the duty imposed by subsection (1).

An indication of the content of the phrase in s 85(2) "otherwise observes the formalities of voting" is provided by ss 78 and 79. Where an elector who is entitled to vote in an election attends a polling booth and claims to vote, a ballot paper shall be issued to that elector (s 78(1)). The voter, on receipt of the ballot paper, shall, without delay, retire alone to some unoccupied compartment of the booth and there, in private, mark his vote on the ballot paper, then deposit the ballot paper in the ballot box and leave the booth (s 79(1)).

Except where otherwise provided, the offences constituted by the Act are summary offences (s 137). Every elector who fails to vote at an election without a valid and sufficient reason for the failure is guilty of an offence (s 85(7)). But it is apparent from s 85(2) that, as one might expect, given the practicalities involved, failure to mark the ballot paper would not be a failure to vote. That this is so is affirmed by the requirement of s 61(2) that the ballot paper include a statement that the elector is not legally obliged to mark the ballot paper.

When the phrase "a voter shall mark his vote on his ballot paper", which appears in sub-ss (1) and (2) of s 76, is read with ss 61, 79 and 85, it is readily apparent that s 76 does not require the voter to cast a vote by marking the ballot paper, even though that vote might not be in accordance with the wishes of the voter. This being the proper construction of s 76, it follows, in accordance with the manner of presentation of the plaintiff's case, that the ground has not been laid for the presentation of any argument for the invalidity of s 76.

The operation of s 76 is to specify the manner required by the Act for the indication of a vote which will be operative rather than informal. That this is so is apparent from a reading of s 76 in conjunction with Div II (ss 92-94) of Pt X of the Act. Part X is headed " The Scrutiny " and Div II " Interpretation and Validity of Ballot Papers ".

A ballot paper shall not be informal except for a reason specified in s 94 (s 94(7)). So far as is presently relevant, the balance of s 94 states:

(1) Subject to this section, a ballot paper is informal if -

(b) it has no vote indicated on it, or it does not indicate, in the manner required by this Act, the order of the voter's preference for all candidates in the election;

(3) Where a voter indicates by consecutive numbers commencing with the number 1 the order of his preference for all candidates on a ballot paper except one -

(b) it shall be presumed that the candidate for whom no preference is expressed is the one least preferred by the voter and that the voter has accordingly indicated the order of his preference for all candidates.

(4) A ballot paper to which effect can be given under the provisions of this Division relating to registered voting tickets is not informal by reason of subsection (1)(b).

(a) a ballot paper has not been marked by a voter in the manner required by this Act; but

(b) notwithstanding that fact, the voter's intention is clear,

the ballot paper is not informal and shall be counted as if the voter's intention had been properly expressed in the manner required by this Act.

The expression "registered voting tickets" is used in s 94(4). It is defined in s 4(1) of the Act as meaning "a voting ticket lodged under section 63". I have referred to the definition of the expression "voting ticket". Section 63 provides for the lodgment of voting tickets with the Electoral Commissioner or the returning officer. Sections 92 and 93 (which with s 94 comprise Div II of Pt X of the Act) contain special provisions to render effective certain ballots by deeming them to have been marked in accordance with a registered voting ticket where that otherwise would not be the case.

The starting point for the consideration of informal ballot papers is par (b) of s 94(1). A ballot paper is informal if it does not indicate in the manner required by the Act (that is to say, by s 76) the order of the preference of the voter for all candidates in the election. That basic requirement of what might be called a full preferential system of voting is expressed in s 94(1) as being subject to the other provisions of s 94. These, as I have indicated, contain various provisions, in turn (in the case of s 94(4)) referring to other sections in the Division and manifest a design, where practicable, to save rather than to defeat the exercise of the franchise.

Nevertheless, the objective of the legislation plainly is to achieve unequivocal exercise of the franchise by the marking of votes on ballot papers in the manner identified in s 76. This is of importance in the construction of s 126. That is the other provision to which the plaintiff directed arguments as to invalidity.

(a) that a person who is entitled to vote at an election should abstain from voting at the election;

(b) that a voter should mark a ballot paper otherwise than in the manner prescribed in section 76(1) or (2); or

(2) A person shall not distribute how-to-vote cards in relation to an election unless each card is marked so as to indicate a valid vote in the manner prescribed in section 76(1) or (2).

The plaintiff does not attack the validity of the prohibition in par (a) of s 126(1), that concerned with publicly advocating abstention from voting. There is no challenge to the Act in so far as it establishes a system of compulsory voting. Nor, as I understand it, is an attack made upon the validity of s 126(2). This is concerned with the distribution of how-to-vote cards. Rather, it was submitted for the plaintiff that pars (b) and (c) of s 126(1) are invalid.

The plaintiff contends that these paragraphs combine to stop what was said to be the free discussion at election times of the fitness of any of the nominated candidates for office, of whether any of the candidates had policies for which voters should vote and of whether there were merits in voting for a candidate for whom the voter otherwise might not choose to vote at all.

These submissions should be rejected. On their face pars (b) and (c) of s 126(1) are concerned with public advocacy concerning the marking of ballot papers. They are not concerned with the broader and, in a sense, anterior questions of the fitness of nominated candidates for office and the like.

It is further contended that pars (b) and (c) combine to stop free discussion at election times of the wisdom of marking the ballot paper at all, of voting informally as a deliberate act, and of annotating a ballot paper with a "message" whether or not an otherwise effective vote is cast using the ballot paper. This "free discussion" is said to be an element of the freedom of communication respecting political matters which is a restraint upon the legislative power of the Parliament of the State of South Australia. The source of that restraint on legislative power is said to be found in either or both of the Australian Constitution and the Constitution (SA).

Before determining the substance of those submissions, it is necessary first to consider further the construction of the impugned provisions of s 126. The phrase "publicly advocate" in a provision which states the elements of a criminal offence confirms the need for subjective intention or design [44] in supporting or urging by argument and by recommending publicly that a voter should act in either way identified in pars (b) and (c).

See O'Sullivan v Lunnon (1986) 163 CLR 545 at 549, 553, 556.

The reference in par (c) of s 126(1) to "refrain from marking a ballot paper" which has been issued to the voter for the purposes of voting is to be read with par (b) of s 94(1). A ballot paper will be informal if it has no vote indicated on it. To advocate publicly that a voter should refrain from marking a ballot paper issued to the voter for the purpose of voting is to urge a course which involves the casting of an informal vote.

Paragraph (b) of s 126(1) also operates to protect the effective exercise of the franchise. A ballot paper which is marked otherwise than in the manner prescribed in s 76 will not indicate in the manner required by the Act the order of the preference of the voter for all candidates in the election. Therefore, subject to the qualifications I have mentioned, par (b) of s 94(1) will render the ballot paper informal.

The phrase in par (b) of s 126(1) "mark a ballot paper otherwise than in the manner prescribed" should be read in this way. The annotation of a ballot paper with a "message", where the ballot paper had been marked in the manner prescribed in s 76(1), for a Legislative Council election, or s 76(2), for a House of Assembly election, would not involve a commission of the mischief to the prevention of which par (b) of s 126(1) is directed. Paragraph (b) is concerned with the public advocacy of a course of action on the part of voters which leads to their marking ballot papers in a way which does not indicate in the manner required by s 76 the order of preference for all candidates, thereby yielding ballot papers which are informal within the meaning of s 94.

It is true that s 85 recognises practical realities by excepting the leaving unmarked of a ballot paper from the duty otherwise imposed by the section, with criminal sanction, upon every elector to observe the formalities of voting by recording a vote at each election in a district for which the elector is enrolled. This exception is further buttressed by the requirement of s 61(2) as to the inclusion on the ballot paper of a statement that the elector is not legally obliged to mark the ballot paper. Nevertheless, whilst what otherwise might be classified as a system of compulsory voting contains these qualifications, the overriding concern of the Act is to achieve effective exercise of the franchise by the casting of votes which are not informal.

The effective exercise of the franchise is of the essence of the operation of representative government [45] . Paragraphs (b) and (c) of s 126(1) operate in a fashion which is not inimical to, but rather in aid of, the system of representative government in South Australia. They operate to further or to enhance the operation of that system by forbidding conduct with a subjective intention or design and which encourages voters not to observe the formalities required for effective exercise of the franchise.

Langer v The Commonwealth (1996) 186 CLR 302 at 350.

The Solicitor-General for South Australia conceded that certain provisions of the Constitution Act 1934 SA, considered together, contain an implication of representative government. He referred to ss 4, 11, 27, 32 and Pt 5 (ss 76-88).

Section 4 of the Constitution Act provides that the Parliament of South Australia shall be constituted by a Legislative Council and a House of Assembly, s 11 that the Legislative Council shall consist of twenty-two members elected by the inhabitants of the State legally qualified to vote, and s 27 that the House of Assembly shall consist of forty-seven members elected by those inhabitants. Section 32 deals with the division of the State into House of Assembly electoral districts by orders published by the Electoral Districts Boundaries Commission, a body incorporated by s 79. This is in Pt 5 of the Constitution Act.

The passage of a Bill for the repeal, suspension or amendment of s 32 and Pt 5 is controlled by the special entrenchment provisions of s 88. This may involve approval of the electors at a referendum. Any repeal, suspension or amendment of s 88 itself requires the approval of electors at a referendum. Section 10A requires that a Bill for the abolition of either chamber of the Parliament, for any alteration of the powers of the Legislative Council, for the repeal or amendment of s 8 or s 41 (dealing with settlement of deadlocks between the chambers) or for the repeal or amendment of s 10A itself, must be submitted to the electors for approval and have been approved by a majority of the persons voting before it is presented for the Royal Assent. Finally, s 8 requires the concurrence of an absolute majority of the whole number of the members of each chamber to the passage of the second and third readings of any Bill by which an alteration is made in the constitution of the Legislative Council or the House of Assembly.

The Solicitor-General conceded that the Bill for the Act, containing the provisions whose validity is attacked by the plaintiff, was not passed in the manner and form provided in s 8 of the Constitution Act, that s 8 (in conjunction with s 10A(2)(d) which entrenched s 8) was a "doubly entrenched" requirement, effective in accordance with its terms, and that these manner and form provisions extended to the abrogation or variation of the implication of representative government. Given these concessions, it is unnecessary for present purposes to consider the constitutional source of that effective entrenchment.

The Solicitor-General confesses and avoids by further submitting that no such restraint upon legislative power applied in respect of the sections whose validity is attacked.

It is unnecessary to determine whether these concessions by the South Australian Solicitor-General as to the operation of the State Constitution were correctly made. It is also unnecessary to determine the nature and extent of any implication to be drawn from the Australian Constitution and applicable, by force of it, to the South Australian legislation in question here.

This is because, on either footing, the implication of freedom of communication on political subjects would be derived from and operate in aid of the system of representative government. It would impose no restraint upon the power of the South Australian Parliament to legislate as it has in enacting pars (b) and (c) of s 126(1) of the Act.

The question for consideration of the Full Court asks whether ss 76 and 126 of the Act are invalid for one or other of two reasons, the first of which assumes, without identifying it, that there is a limit on the legislative power of the Parliament of the State which is implied from the Constitution of the Commonwealth. The preferable course is to answer the question by stating that neither s 76 nor s 126(1) of the Act is beyond the legislative power of the Parliament of the State of South Australia.

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