'Tweedledum and Tweedledee 1,2,3,3' - The Albert Langer Story
Chris Field
Law and Public Administration Group
Contents
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.
Mr Langer's activity regarding the method people should use when voting
in a House of Representatives election has been subject to the AEC's attention
for a number of years, including in relation to the 1987, 1990 and 1993
elections. On the day the writs were issued for the General Election,
29 January 1996, Mr Langer contacted the AEC and informed an officer that
he intended to distribute election material that advocated `optional preferential'
voting. He subsequently faxed a copy of the material to the AEC. The material
was also published as an advertisement in The Australian on 31
January 1996. The material encouraged people to vote for neither of the
major parties by placing the same number in the square of the candidate
for each of the major parties after first voting for other candidates
as illustrated below (Note: In the material Mr Howard and Mr Keating
are referred to as Tweedledum and Tweedledee). The method advocated
by Mr Langer for voting in the House of Representatives would result in
the vote being formal but being exhausted, as no further preferences could
be distributed, before it could flow to either major party (see below
for further information on formal voting).
The AEC subsequently sought an injunction in the Victorian Supreme Court
to prevent Mr Langer from encouraging people to vote otherwise than in
the manner approved by the Commonwealth Electoral Act 1918 (the
Act). Section 329A of the Act makes it an offence to encourage people
to vote other than in the manner described in section 240 of the Act which
provides for a full preferential system. The matter was heard in the Victorian
Supreme Court on 5 and 6 of February 1996. Prior to the court's judgement
being delivered, the High Court ruled, on 7 February 1996, that section
329A of the Act was Constitutionally valid. (The High Court's judgement
resulted from the 1993 election when Mr Langer sought a declaration from
the High Court that section 329A was unconstitutional. Deane J refused
to make such a declaration and referred the Constitutional validity of
section 329A to the Full Bench of the High Court. The judgement is discussed
in more detail below in relation to implied Constitutional freedoms.
On 8 February the Victorian Supreme Court granted an injunction preventing
Mr Langer from continuing his actions. The main order made by the Court
was:
Until 6.00 pm on 2 March 1996 [the time for the close of voting] or
further order the defendant [Mr Langer] whether by himself, his servants
or agents or howsoever otherwise, be restrained from printing, publishing
or distributing, or causing to be printed, published or distributed,
any matter or thing whatsoever with the intention of encouraging any
person to vote at the federal election for the House of Representatives
to be held on 2 March 1996 by filling out a ballot paper otherwise than
by:
(a) writing the number 1 in the square opposite the name of the candidate
for whom the person votes as his or her first preference; and
(b) writing the numbers 2, 3, 4 (and so on as the case requires)
consecutively without writing any particular number more than once,
in the squares opposite the names of all the remaining candidates
so as to indicate the order of the person's preference for them.
The Supreme Court's decision was based on the judge finding that there
was no doubt that the wording of section 240 (see below) required a voter
after indicating their first preference to write the numbers 2, 3, 4 and
so on in numerical sequence. (The words in italics do not appear
in section 240 of the Act.)
Mr Langer, however, continued to distribute the material and appeared
again in the Victorian Supreme Court on 14 February 1996 to answer a charge
of contempt of court arising from his breach of the order made on 8 February
1996. Mr Langer argued that the order was unconstitutional and is reported
as stating 'the only way you can constrain me is to lock me up.' Mr Langer
was then imprisoned until 30 April 1996 for contempt of court.
On 27 February 1996 Mr Langer announced his intention to appeal against
his conviction. The Federal Court agreed to hear the appeal on 28 February
on the basis that if Mr Langer was successful he should be released before
the Election on 2 March. The appeal was principally based on the ground
that the Supreme Court had misinterpreted section 240 of the Act. Mr Langer
argued that as the section required voters to indicate their preference
for candidates, it does not contain a specific requirement to give preference
to candidates when the voter has no preference between the candidates.
The Human Rights Commission, which was joined as a party to the proceedings,
argued that if the method of voting proposed was legal it should not be
an offence to argue in favour of such a vote. The AEC, which was also
joined as a party to the proceedings, argued that while providing information
on how people may vote is not an offence, the encouragement of people
to vote contrary to section 240 was an offence. (The difference between
the provision of information and encouraging people to vote contrary to
section 240 was discussed by the High Court in the consideration of the
validity of section 329A and will be discussed below in relation to implied
Constitutional rights.)
The Full Bench of the Federal Court delivered its decision on 1 March
1996 and dismissed Mr Langer's appeal. The Court upheld the Supreme Court's
interpretation of section 240 but reserved its decisions on whether Mr
Langer had been in contempt of court and whether the imprisonment until
30 April was excessive. On 7 March 1996 the Full Bench ruled that Mr Langer
had been in contempt of court but that the sentence was excessive and
ordered that Mr Langer be released immediately.
Relevant Provisions
of the Act
The nature of material that may be distributed in relation to the method
of voting for a House of Representatives election and what is a formal
vote at an election is governed by the following sections of the Act:
Section 240 provides that a voter must mark number 1
against the candidate who has their first preference and then write 'the
numbers 2, 3, 4 (and so on as the case requires) in the squares opposite
the names of all the remaining candidates so as to indicate the order
of the person's preference for them'. This section was interpreted by
the Victorian Supreme Court on 8 February 1996, when issuing the injunction
against Mr Langer, as meaning that no number may be written more than
once. The interpretation was supported by the Federal Court on 1 March
1996 when it dismissed Mr Langer's initial appeal.
Section 329A makes it an offence, with a maximum penalty
of imprisonment for 6 months, to print, publish or distribute, or to cause
to be printed, published or distributed, any matter or thing with the
intention of encouraging a person at a House of Representatives election
to fill in a ballot paper other than in accordance with section 240.
Section 270 deals with the situations where voters have
marked their ballot paper by not filling out all the squares next to candidates
or have marked their ballot paper with non-consecutive numbers. In relation
to House of Representatives elections, the section provides that a vote
will be formal in an election where there are 3 or more candidates if
the number 1 is placed against one candidate, and the squares opposite
other candidates, except one, are numbered. In such a case, if the numbers
against the other candidates are consecutive they will be taken to be
the voters preferences and if a number is repeated it is to be disregarded.
Section 268 provides that where there are only 2 candidates
in a House of Representatives election and the number 1 is placed against
one of the candidates and the square opposite the other candidate is left
empty, the vote will be valid and the voter will be deemed to have given
the latter candidate their second preference. This will also apply where
a number other than 2 is put in the square opposite the latter candidate.
What is a Formal Vote in
the House of Representatives
While the Act establishes a full preferential voting system, the operation
of sections 270 and 268 provide for votes to be treated as valid even
though preferences are not fully expressed. In the recent High Court case
relating to the validity of section 329A, Albert Langer v The Commonwealth
of Australia (the judgement of which was released on 20 February
1996), all judges agreed that the method of voting proposed by Mr Langer
was valid. In analysing possible forms of valid votes in a House of Representatives
election, the table compiled by the dissenting judge, Dawson J, is particularly
useful. The table as provided by Dawson J follows:
| 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.
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.
- 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.
- The Australian, 15 February 1996.
- The Age, 29 February 1996.
- Australian Capital Television Pty Ltd v The Commonwealth
(1992) 177 CLR 106
- Joint Standing Committee on Electoral Matters, The 1993 Federal
Election, 106.
- Ibid.: 163.
- The Canberra Times, 5 March 1996.
|
