Free to Choose or Compelled to Lie? — The Rights of Voters after Langer V the Commonwealth
| Author | Anne Twomey |
| DOI | 10.22145/flr.24.1.7 |
| Published date | 01 March 1996 |
| Date | 01 March 1996 |
| Subject Matter | Article |
FREE
TO
CHOOSE
OR
COMPELLED
TO
LIE? -
THE
RIGHTS
OF
VOTERS AFTER
LANGER
VTHE
COMMONWEALTH
Anne Twomey*
INTRODUCTION
The
case of
Langer
v
The
Commonwealth,l is important, for it reveals
much
about
the
understanding
of "democracy"
in
Australia, including
fundamental
conflicts as to
what
is essential,
and
what
is
peripheral
to
our
constitutional system of "representative
democracy". The
Langer
case raises questions
about
what
amounts
to ademocratic
"choice"
in
an
election. Is "choice" merely a
matter
of
being
able to select
from
candidates
offered,
or
does it involve the representation of
the
will of
the
people? Is it
democratic to
compel
a
voter
to lie2
by
requiring the voter to give preferences to
candidates
he
or
she rejects,
or
must
voters
have
aright to vote
in
an
informal
manner
if
they
do
not
wish
to express apreference for certain candidates? Is
the
choice to vote
informally agenuine political choice,
and
is advocacy of
such
achoice
protected
by
the
constitutional
guarantee
of freedom of political communication?
Should
it
be
acriminal
offence to advocate activity
which
is
not
only legal,
but
would
result
in
aformal vote?
These questions are, of course,
profoundly
political
in
nature,
and
it is
not
surprising
that
they
are largely dealt
with
in
asuperficial
manner
by
the
High
Court,
leaving Australians
none
the wiser as to the
fundamental
principles
which
underlie
their Constitution. This
note
will explain
and
analyse
how
the
High
Court
dealt
with
these issues.
BACKGROUND
Mr
Albert Langer
had
been
campaigning for some years for people to vote
in
afashion
that
does
not
give preferences to the major political parties.
Part
of his
campaign
was
to
alert
people
to the fact
that
s270 of the
Commonwealth
Electoral Act 1918
deems
ballots for
the
House
of Representatives to
be
formal
even
when
apreference
number
is
repeated,
and
one
box
is left empty. If there are three
or
more
candidates,
and
the
number
1is
placed
opposite one candidate, the following preferences will
be
counted
as
long
as there is aconsecutive
order
and
a
number
is
not
repeated.3Once a
number
is
1
2
3
Lecturer
in
Law, University
of
Sydney
(1996) 134 ALR 400.
Judd
vMcKeon (1926) 38 CLR 380
at
388
per
Higgins
J.
There is afurther
requirement
that
a
number
be
placed
in
each
square
opposite
a
candidate's
name,
or
in
all
the
squares
except for one.
202
Federal
Law
Review
Volume 24
repeated
or
the
sequence broken, the ballot is
deemed
to
be
"exhausted",
and
preferences are
no
longer
allocated
in
relation to it. Accordingly, one
could
ensure
that
one's preference does
not
elect a
candidate
from amajor
party,
by
giving one's first,
second
and
third
preferences to
members
of small parties
or
independents,
and
by
placing
the
major parties
equallast.
4
As
far
back
as 1987, the Electoral Commission
sought
an
injunction against
Mr
Langer
to
prevent
him
from publicising his views
during
the federal election campaign.
Justice Vincent
held
that
it
was
not
an
offence, according to the
law
at
that
time,
to
conduct
a
campaign
to encourage people to vote
in
an
informal
manner,s
nor
was
it
an
offence to explain to voters their right to vote
in
accordance
with
s270.6
However,
Vincent J
held
that
it
was
an
offence to encoura1e people
not
to vote
at
all, contrary to
s245 of
the
Commonwealth
Electoral Act 1918,
and
it
was
also
an
offence
under
s329
to
publish
arepresentation of aballot
paper
that
is likely to
induce
an
elector to
mark
his
or
her
vote
otherwise
than
in
accordance
with
the directions
on
the
ballot
paper.
Accordingly,
an
injunction
was
granted
on
this basis.
The
number
of
exhausted
votes
recorded
in
the 1987 election
was
2082,
but
this
jumped
significantly to 18,765
exhausted
votes
in
the 1990 election, as
the
campaign
to
alert
people
of
the
method
of voting
under
s270(2) continued. The
report
of
the
Joint
Standing
Committee
on
Electoral Matters into the
running
of the 1990 federal election
expressed
concern
that
this rise
in
the
number
of
exhausted
votes
meant
that
the
safety
net
provisions of s270
were
being
used
to
implement
a
de
facto
form of optional
preferential voting.8The Committee
recommended
that
the
Commonwealth
Electoral
Act 1918
be
amended
to include ageneral prohibition
on
the distribution of
any
material
which
discourages electors from
numbering
their ballot
papers
consecutively
and
fully.9
The
Government
accepted the Committee's recommendation,
and
introduced
the
Electoral
and
Referendum
Bill 1992,
which
included
aprovision inserting s329A
in
the
Commonwealth
Electoral Act 1918. Section 329A provides:
(1)
A
person
must
not,
during
the
relevant
period
in
relation to a
House
of
Representatives election
under
this Act, print,
publish
or
distribute,
or
cause,
permit
or
authorise to
be
printed,
published
or
distributed,
any
matter
or
thing
with
the
intention
of
encouraging
persons
voting
at
the
election to fill
in
aballot
paper
otherwise
than
in
accordance
with
section 240.
(2)
In
this section "publish" includes
publish
by
radio
or
television.
4
S
6
7
8
9
The leaflet
distributed
by
Mr
Langer
which
was
the
subject
of
the
injunction
and
contempt
proceedings,
was
headed
"How
to Vote for Neither",
and
advocated
giving
equal
last
preference to "Tweedledum"
(who
was
represented
by
a
photograph
of
Prime
Minister
Keating)
and
"Tweedledee"
(who
was
represented
by
a
photograph
of
Opposition
Leader
Howard):
Langer
vAustralian
Electoral
Commission
(Full
Court
of
the
Federal
Court
of
Australia, 1
March
1996, unreported).
Australian
Electoral
Commission
v
Van
Moorst
and
Langer
(Supreme
Court
of
Victoria, Vincent
J,
2July 1987
unreported)
at
7.
Ibid
at
13.
Ibid
at
8.
Commonwealth
Parliament
Joint
Standing
Committee
on
Electoral Matters,
1990
Federal
Election
Report
(1990)
at
41-2.
Ibid
at
42.
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