'Tweedledum and Tweedledee 1,2,3,3' - The Albert Langer Story


Current Issues Brief 14 1995-96

Chris Field
Law and Public Administration Group

Contents

Introduction

Mr Albert Langer was recently convicted of contempt of court and sentenced to imprisonment for approximately 10 weeks for breaching an injunction granted to the Australian Electoral Commission (AEC) to prevent him from distributing certain election material. Mr Langer was released after serving approximately 3 weeks. The effects of this included the apparent counterproductive (for the AEC) promotion of Mr Langer's proposed system of voting and Amnesty International describing Mr Langer as Australia's first prisoner of conscience for over 20 years.

This brief addresses the background to the situation leading to Mr Langer's imprisonment and release, the relevant legislation, the meaning of a formal vote, the absence of an implied Constitutional freedom to act in the manner in which Mr Langer acted and other actions and views expressed in relation to this matter.

Background

Mr Langer's activity regarding the method people should use when voting in a House of Representatives election has been subject to the AEC's attention for a number of years, including in relation to the 1987, 1990 and 1993 elections. On the day the writs were issued for the General Election, 29 January 1996, Mr Langer contacted the AEC and informed an officer that he intended to distribute election material that advocated `optional preferential' voting. He subsequently faxed a copy of the material to the AEC. The material was also published as an advertisement in The Australian on 31 January 1996. The material encouraged people to vote for neither of the major parties by placing the same number in the square of the candidate for each of the major parties after first voting for other candidates as illustrated below (Note: In the material Mr Howard and Mr Keating are referred to as Tweedledum and Tweedledee). The method advocated by Mr Langer for voting in the House of Representatives would result in the vote being formal but being exhausted, as no further preferences could be distributed, before it could flow to either major party (see below for further information on formal voting).

 

Election Material

The AEC subsequently sought an injunction in the Victorian Supreme Court to prevent Mr Langer from encouraging people to vote otherwise than in the manner approved by the Commonwealth Electoral Act 1918 (the Act). Section 329A of the Act makes it an offence to encourage people to vote other than in the manner described in section 240 of the Act which provides for a full preferential system. The matter was heard in the Victorian Supreme Court on 5 and 6 of February 1996. Prior to the court's judgement being delivered, the High Court ruled, on 7 February 1996, that section 329A of the Act was Constitutionally valid. (The High Court's judgement resulted from the 1993 election when Mr Langer sought a declaration from the High Court that section 329A was unconstitutional. Deane J refused to make such a declaration and referred the Constitutional validity of section 329A to the Full Bench of the High Court. The judgement is discussed in more detail below in relation to implied Constitutional freedoms.

On 8 February the Victorian Supreme Court granted an injunction preventing Mr Langer from continuing his actions. The main order made by the Court was:

Until 6.00 pm on 2 March 1996 [the time for the close of voting] or further order the defendant [Mr Langer] whether by himself, his servants or agents or howsoever otherwise, be restrained from printing, publishing or distributing, or causing to be printed, published or distributed, any matter or thing whatsoever with the intention of encouraging any person to vote at the federal election for the House of Representatives to be held on 2 March 1996 by filling out a ballot paper otherwise than by:

(a) writing the number 1 in the square opposite the name of the candidate for whom the person votes as his or her first preference; and

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

The Supreme Court's decision was based on the judge finding that there was no doubt that the wording of section 240 (see below) required a voter after indicating their first preference to write the numbers 2, 3, 4 and so on in numerical sequence. (The words in italics do not appear in section 240 of the Act.)

Mr Langer, however, continued to distribute the material and appeared again in the Victorian Supreme Court on 14 February 1996 to answer a charge of contempt of court arising from his breach of the order made on 8 February 1996. Mr Langer argued that the order was unconstitutional and is reported as stating 'the only way you can constrain me is to lock me up.' Mr Langer was then imprisoned until 30 April 1996 for contempt of court.

On 27 February 1996 Mr Langer announced his intention to appeal against his conviction. The Federal Court agreed to hear the appeal on 28 February on the basis that if Mr Langer was successful he should be released before the Election on 2 March. The appeal was principally based on the ground that the Supreme Court had misinterpreted section 240 of the Act. Mr Langer argued that as the section required voters to indicate their preference for candidates, it does not contain a specific requirement to give preference to candidates when the voter has no preference between the candidates. The Human Rights Commission, which was joined as a party to the proceedings, argued that if the method of voting proposed was legal it should not be an offence to argue in favour of such a vote. The AEC, which was also joined as a party to the proceedings, argued that while providing information on how people may vote is not an offence, the encouragement of people to vote contrary to section 240 was an offence. (The difference between the provision of information and encouraging people to vote contrary to section 240 was discussed by the High Court in the consideration of the validity of section 329A and will be discussed below in relation to implied Constitutional rights.)

The Full Bench of the Federal Court delivered its decision on 1 March 1996 and dismissed Mr Langer's appeal. The Court upheld the Supreme Court's interpretation of section 240 but reserved its decisions on whether Mr Langer had been in contempt of court and whether the imprisonment until 30 April was excessive. On 7 March 1996 the Full Bench ruled that Mr Langer had been in contempt of court but that the sentence was excessive and ordered that Mr Langer be released immediately.

Relevant Provisions of the Act

The nature of material that may be distributed in relation to the method of voting for a House of Representatives election and what is a formal vote at an election is governed by the following sections of the Act:

Section 240 provides that a voter must mark number 1 against the candidate who has their first preference and then write 'the numbers 2, 3, 4 (and so on as the case requires) in the squares opposite the names of all the remaining candidates so as to indicate the order of the person's preference for them'. This section was interpreted by the Victorian Supreme Court on 8 February 1996, when issuing the injunction against Mr Langer, as meaning that no number may be written more than once. The interpretation was supported by the Federal Court on 1 March 1996 when it dismissed Mr Langer's initial appeal.

Section 329A makes it an offence, with a maximum penalty of imprisonment for 6 months, to print, publish or distribute, or to cause to be printed, published or distributed, any matter or thing with the intention of encouraging a person at a House of Representatives election to fill in a ballot paper other than in accordance with section 240.

Section 270 deals with the situations where voters have marked their ballot paper by not filling out all the squares next to candidates or have marked their ballot paper with non-consecutive numbers. In relation to House of Representatives elections, the section provides that a vote will be formal in an election where there are 3 or more candidates if the number 1 is placed against one candidate, and the squares opposite other candidates, except one, are numbered. In such a case, if the numbers against the other candidates are consecutive they will be taken to be the voters preferences and if a number is repeated it is to be disregarded.

Section 268 provides that where there are only 2 candidates in a House of Representatives election and the number 1 is placed against one of the candidates and the square opposite the other candidate is left empty, the vote will be valid and the voter will be deemed to have given the latter candidate their second preference. This will also apply where a number other than 2 is put in the square opposite the latter candidate.

What is a Formal Vote in the House of Representatives

While the Act establishes a full preferential voting system, the operation of sections 270 and 268 provide for votes to be treated as valid even though preferences are not fully expressed. In the recent High Court case relating to the validity of section 329A, Albert Langer v The Commonwealth of Australia (the judgement of which was released on 20 February 1996), all judges agreed that the method of voting proposed by Mr Langer was valid. In analysing possible forms of valid votes in a House of Representatives election, the table compiled by the dissenting judge, Dawson J, is particularly useful. The table as provided by Dawson J follows:

A B C D
1 1 1 1
2 2 2 2
2 2 3 3
2 2 3 3
2   3  

In Dawson J's opinion, votes according to A or B would result in the vote being exhausted after the first preference was allocated and those according to C or D would expire after the second preference was allocated. In summary, this would be achieved in the following ways:

A: The first preference would be counted and the other, repeated, numbers would be excluded in accordance with subsections 270(1) and (3).

B: This vote would be treated the same as vote A but the square left blank would not be counted as a second preference as where there are three or more candidates and the voter has indicated a first preference and numbered other squares, only the squares numbered are to be taken as indicating the voter's preferences ( subsection 270(2)).

C: This vote will be counted as a valid first and second preference vote with the vote being exhausted after the second preference is delivered. As with vote A, the repeated numbers would be excluded.

D: Again this vote will allow first and second preferences to be counted. As with vote B, the blank square will not count as a second preference.

The above provide examples of the operation of section 270 to save votes that would otherwise be informal. While the Act provides for a full preferential voting system, the operation of section 270 allows people to vote in an 'optional preferential' manner so long as numbers are put in squares opposite the all the candidates except one. If a ballot paper has more than 2 candidates, the indication of a first preference only would be an informal vote. As such, the proposed voting system can be contrasted with a fully optional preferential system, where the voter has the option of indicating their first preference only.

It should also be noted that if a preference is indicated only for minor parties and independents, as advocated by Mr Langer, and these candidates receive less votes than candidates from the major parties, as is the usual case in Australian House of Representatives elections, the vote will be exhausted after the minor parties and independents have been eliminated.

It may also be noted that if no candidate in a House of Representatives election achieves a majority of the votes cast at an election (ie greater than half of the votes cast excluding informal votes), there will be no candidate elected and the election for that seat would need to be held again (sections 274 and 181 of the Act). Mr Langer argued that if, in an electorate/s, sufficient voters adopted his method of voting there would be no majority of the votes cast flowing to a candidate and the election/s would need to be held again.

Implied Constitutional Rights

As noted above, it was discussed in the High Court whether section 329A of the Act was invalid as it breached the implied Constitutional right to freedom of speech in relation to electoral matters. In an earlier case on the validity of the proposed ban on political advertising during election periods, a majority of the High Court held that there was an implied right in the Constitution to freedom of communication on matters relevant to political discussion. In the Langer case, the Court confirmed that the implied freedom of communication in relation to political discussion was not absolute. The validity of section 329A was upheld as the section was within the Commonwealth's legislative power and the restriction on encouraging people to vote contrary to section 240 did not prevent the provision of information on what would constitute a formal vote. In this regard, the majority differentiated between the provision of information and the encouragement to vote in a way that was not fully preferential. They determined that Mr Langer's actions amounted to an encouragement to breach section 240 rather than the provision of information on what constitutes a formal vote and so breaches section 329A. The dissenting judge, Dawson J, found there to be little practical distinction between the provision of information and encouraging its use, stating `'To put matters shortly, to make available information is ordinarily to encourage its use.'

Returning to the general nature of the implied freedom of political communications, Brennan CJ noted that whether this was breached must be examined on the particular circumstances of the restriction and commented:

In my view, if the impairment of the freedom is reasonably capable of being regarded as appropriate and adapted to the achieving of a legitimate legislative purpose and the impairment is merely incidental to the achievement of that purpose, the law is within power.

In their joint judgement Toohey J and Gaudron J also agreed that the implied freedom was not absolute and that the freedom could be restricted:

where that curtailment is reasonably capable of being viewed as appropriate and adapted to furthering or enhancing the democratic process.

In upholding the validity of section 329A the majority Justices were of the opinion that the section fell within this allowable restriction.

Other Views and Reactions

Following the 1993 election a reference was given to the Joint Standing Committee on Electoral Matters to inquire into the conduct of the election and during it's inquiry the question of the relevance of section 329A was examined. The Committee consisted of 6 ALP, 3 Liberal, 1 National, 1 Democrat and 1 Green Western Australia representatives. The majority in the Committee stated that they did not endorse either informal or optional preferential voting and withheld further comment on the section until the Constitutional validity of section 329A was determined by the High Court. The Dissenting report, by the 3 Liberal and 1 National Party representatives, noted that the AEC had not been able to prosecute anyone for a breach of section 329A after the 1993 election, and concluded that the section should be repealed.

Methods of voting similar to those advocated by Mr Langer have also been advocated by others who have not been subject to action for a breach of section 329A. For example, two Anarchist Senate candidates for the 1996 Senate election advocated a similar voting method and a campaign has been conducted on the internet endorsing such a method of voting. Members of Mr Langer's support group, known as Neither, have distributed leaflets and how to vote cards advocating a vote according to the method advocated by Mr Langer. The AEC has taken no action against others encouraging a non-full preferential vote.

Amnesty International has also become involved in the Langer case, calling for Mr Langer to be freed and describing him as Australia's first prisoner of conscience for over 20 years, alleging that the imprisonment was a breach of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

During the election campaign Mr Howard described the provisions of the Act that led to the injunction being granted against Mr Langer as 'stupid' and on the day of Mr Langer's release from prison the Human Rights Commissioner called for those laws to be repealed.

Conclusion

Preliminary figures from the AEC show that approximately 46 000 votes were exhausted during the 1996 House of Representatives election, an increase of over 500 percent on the number of exhausted votes in the 1993 election. The impact of the method of voting advocated by Mr Langer was such that the AEC has initiated a survey of Langer style votes. The exhausted votes were spread throughout Australia, with the largest number of exhausted votes being in NSW. Mr Langer has thanked the AEC for the publicity his advocated method of voting received following the action taken against him.

Endnotes

  1. In this case the Supreme Court was exercising its Federal, rather than State, jurisdiction. Consequently Victorian laws requiring contempt charges to be initiated by the Victorian Attorney-General do not apply.
  2. The Australian, 15 February 1996.
  3. The Age, 29 February 1996.
  4. Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106
  5. Joint Standing Committee on Electoral Matters, The 1993 Federal Election, 106.
  6. Ibid.: 163.
  7. The Canberra Times, 5 March 1996.

 
 

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