Hostname: page-component-745bb68f8f-g4j75 Total loading time: 0 Render date: 2025-01-31T02:40:32.176Z Has data issue: false hasContentIssue false
  • English
  • Français

Free to Choose or Compelled to Lie? — The Rights of Voters after Langer V the Commonwealth

Published online by Cambridge University Press:  24 January 2025

Anne Twomey
Anne Twomey*
Affiliation:
University of Sydney
Get access Rights & Permissions [Opens in a new window]

Extract

The case of Langer v The Commonwealth, 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 a democratic “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 lie by requiring the voter to give preferences to candidates he or she rejects, or must voters have a right to vote in an informal manner if they do not wish to express a preference for certain candidates? Is the choice to vote informally a genuine political choice, and is advocacy of such a choice protected by the constitutional guarantee of freedom of political communication? Should it be a criminal offence to advocate activity which is not only legal, but would result in a formal vote?

Type
Research Article
Information
Federal Law Review , Volume 24 , Issue 1 , March 1996 , pp. 201 - 220
Copyright
Copyright © 1996 The Australian National University

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 (1996) 134 ALR 400.

2 Judd v McKean (1926) 38 CLR 380 at 388 per Higgins J.

3 There is a further requirement that a number be placed in each square opposite a candidate's name, or in all the squares except for one.

4 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 v Australian Electoral Commission (Full Court of the Federal Court of Australia, 1 March 1996, unreported).

5 Australian Electoral Commission v Van Moorst and Langer (Supreme Court of Victoria, Vincent J, 2 July 1987 unreported) at 7.

6 Ibid at 13.

7 Ibid at 8.

8 Commonwealth Parliament Joint Standing Committee on Electoral Matters, 1990 Federal Election Report (1990) at41-2.

9 Ibid at 42.

10 H Rep Deb 1992, Vol 187 at 3866 per Mr Price.

11 Sen Deb 1992, Vol 156 at 3910-1.

12 Ibid at 3915-6.

13 Commonwealth Parliament Joint Standing Committee on Electoral Matters, 1990 Federal Election Report (1990) at 105.

14 The Supreme Court was exercising federal jurisdiction pursuant to s 383(8) of the Commonwealth Electoral Act 1918 (Cth).

15 Only six members of the Court sat on this case, because the appointment of Deane J to the position of Governor-General had already been announced.

16 The Federal Court was given jurisdiction to hear such an appeal by s 383(9) of the Commonwealth Electoral Act 1918 (Cth).

17 Langer v Australian Electoral Commission (Full Court of the Federal Court of Australia, 1 March 1996, unreported).

18 Langer v Australian Electoral Commission (Full Court of the Federal Court of Australia, 7 March 1996, unreported).

19 Figure provided by the Australian Electoral Commission, with approximately 96% of the vote counted. The figure may increase when all preferences have been distributed.

20 Note, however, that in Langer v Australian Electoral Commission (Full Court of the Federal Court of Australia, 1 March 1996, unreported) at para 34, the Court observed that a repeated number to two or more candidates fails to express a preference between them. The Court did not accept that equal preferences could be allocated.

21 (1996) 134 ALR 400 at 402 per Brennan CJ, at 408 per Dawson J and at 421 per McHugh J.

22 See, however, the assumption to this effect by Brennan CJ (1996) 134 ALR 400 at 402.

23 The provision further provides that the vote will be formal even if there are not numbers in all the squares, so long as only one square is missing a number. The candidate whose name is opposite the empty square will be taken to be a person's last preference. See further exceptions in s 268.

24 Langer v Australian Electoral Commission (Full Court of the Federal Court of Australia, 1 March 1996, unreported) para 7 (emphasis added). Note, however, that the Court did not consider that this deviation detracted from the clear meaning of the provision: para 50.

25 (1996) 134 ALR 400 at 406 per Brennan CJ.

26 Ibid.

27 Commonwealth Electoral Act 1918 (Cth), s 268(l)(a).

28 Commonwealth Electoral Act 1918 (Cth), s 268(1)(d).

29 Note that no express reference is made to s 240, the wording is merely similar.

30 (1996) 134 ALR 400 at 408.

31 Ibid at 409.

32 Ibid.

33 Ibid at 411.

34 Ibid.

35 Ibid at 416.

36 Ibid at 421 and fn 59.

37 Ibid at 430.

38 Ibid at 403 per Brennan CJ, at 410 per Dawson J, at 422 per McHugh J and at 430 per GummowJ.

39 Ibid at 404, quoting from Smith v Oldham (1912) 15 CLR 355 at 363.Cf Dawson Jin Langer, who concluded that the power to enact electoral laws is not a power which is “at large” and classified it as a purposive power which is limited to the implementation of s 24 of the Constitution: (1996) 134 ALR 400 at 410-11.

40 Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 581 per Deane J.

41 Queensland Electricity Commission v The Commonwealth (1985) 159 CLR 192. See also Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 at 272 per Brennan, Deane and Toohey JJ. In that case, the Court held that a plenary power which is not expressly “subject to this Constitution” (s 122) was still subject to implications derived from federalism in its interpretation, and accordingly made subject to another express provision of the Constitution (s 90).

42 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 69 per Deane and Toohey JJ, at 94 per Gaudron J; Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106;Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 164 per Deane J.

43 (1992) 177 CLR 106 at 157 per Brennan J, at 165 per Deane and Toohey JJ, at 220 per Gaudron J and at 227 and 233 per McHugh J.

44 Commonwealth Electoral Act 1918 (Cth): heading of s 245.

45 See also provisions concerning postal votes.

46 Professor Coady, A, “Gagging Langer is an affront”, Sydney Morning Herald, 16 February 1996 at 15Google Scholar; “ Should voting be compulsory?” (1991) 44(4) IPA Review 18 at 19Google Scholar; Puplick, C, “Should voting be compulsory? For” in Giles, R (ed), For and Against: An Anthology of Public Issues in Australia (1989) 94 at 95Google Scholar; Starke QC, J G (ed), Current Topics, “'Compulsory' voting under the Commonwealth Electoral Act 1918” (1985) 59 ALJ 130Google Scholar.

47 “Should voting be compulsory?” (1991) 44(4) IPA Review 18 at 19.

48 Cf the position in South Australia, where the Electoral Act 1985 (SA) provides ins 85(1) that it is the duty of every elector to record his or her vote at each election, but that this is subject so s 85(2) which provides that an elector who leaves his or her ballot paper unmarked but otherwise complies with the formalities of voting, is not in breach of the duty imposed by subsection (1).

49 Having been a polling clerk for several elections, it is my observation that this behaviour would occur two or three times in the course of the day in the polling booth at which I worked. No instructions were ever given to identify these people in order to prosecute them.

50 This interpretation is offered in J G Starke, above n 46 at 130.

51 51 [1970] VR 807.

52 Ibid at 811.

53 (1976) 14 SASR 377.

54 Ibid at 379.

55 (1971) 126 CLR 271 at 272.

56 Ibid.

57 (1981) 37 ACTR 13 at 16.

58 This statement was criticised by Vincent J of the Victorian Supreme Court in Australian Electoral Commission v Van Moorst and Langer (Supreme Court of Victoria, Vincent J, 2 July 1987, unreported) where he noted that Blackbum CJ had himself described his view as “heretical”. Vincent J preferred the views of Barwick CJ and Crockett J.

59 Rydon, J, “Should Voting be Compulsory? Against” in Giles, R (ed), For and Against: AnAnthology of Public Issues in Australia, (1989) 97 at 97Google Scholar.

60 J G Starke, above n 46 at 130. Note the reference to s 124 is under the old numbering, and the section has now been renumbered as s 240.

61 Some have argued that this results in a discriminatory (or dishonest) application of the law, because those who do not attendthe polling booth are prosecuted, while those who attend, but do not vote formally, are not prosecuted: J G Starke, above n 46 at 131; J Rydon, above n 59 at 97.

62 (1996) 134 ALR 400 at 421. Cf Gummow J at 430 where he stressed the mandatory nature of the expression “shall mark” ins 240.

63 Ibid at 413.

64 Ibid at 422 per McHugh J.

65 Ibid at 423, referring to Judd v McKean (1926) 38 CLR 380.

66 (1926) 38 CLR 380.

67 Note, however, that the obiter dicta in Judd v McKean indicate that if the Court had been asked to consider the conviction of a person for voting informally, it would have been likely to uphold the power of the Commonwealth Parliament to enact such a law, as long as the voter was given a free choice between candidates.

68 Justice McHugh noted in McGinty v Western Australia (1996) 134 ALR 289 at 355 that the Constitution makes the Federal Parliament the final arbiter on whether there should be a secret ballot. See also Gummow J to the same effect at 385.

69 (1926) 38 CLR 380.

70 Ibid at 383, quoted in (1996) 134 ALR 400 at 404. See also reference to this passage by McHugh J at 424.

71 (1996) 134 ALR 400 at 405.

72 (1992) 177 CLR 106.

73 (1996) 134 ALR 400 at 410.

74 Ibid at 417.

75 Ibid at 419.

76 Ibid at 424.

77 Ibid.

78 (1992) 177 CLR 106 at 231.

79 (1996) 134 ALR 400 at 421.

80 Ibid at 425. See further on this point McGinty v Western Australia (1996) 134 ALR 289, where Brennan CJ at 293 considered it arguable that s 24 of the Constitution now requires universal suffrage. Toohey J at 320, Gaudron J at 337 and Gummow J at 388 all considered that universal suffrage is now required by s 24; and Dawson J at 306 considered that universal suffrage is a matter for the Parliament to determine.

81 (1996) 134 ALR 400 at 425.

82 Ibid at 430.

83 Commonwealth Electoral Act 1918 (Cth), s 245.

84 Commonwealth Electoral Act 1918 (Cth), s 240.

85 Australian Electoral Commission v Van Moorst and Langer, (Supreme Court of Victoria,Vincent J, 2 July 1987, unreported) at 6.

86 (1996) 134 ALR 400 at 411.

87 Australian Electoral Commission v Van Moorst and Langer, (Supreme Court of Victoria, Vincent J, 2 July 1987, unreported) at 13. Note, at that times 329A had not been enacted.

88 (1996) 134 ALR 400 at 406.

89 Ibid at 418.

90 Ibid at 422.

91 Ibid at 431.

92 J Rydon, above n 56 at 97.

93 (1926) 38 CLR 380 at 388. See also Lubcke v Little [1970] VR 807, where Crockett J observed at 811 that perhaps the legislation “is not compelling a man 'to tell a lie"', because it is not an offence to record an informal vote.

94 (1996) 134 ALR 400 at 405 and see also McHugh J at 421.

95 Ibid at 421.

96 See comments to this effect by Toohey and Gaudron JJ (1996) 134 ALR 400 at 418 and McHugh J at 423.

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

98 (1992) 177 CLR 106 at 143 per Mason CJ and at 235 per McHugh J. See also Deane and Toohey JJ at 169 where they reach a similar view, stating that a law directed at restricting communications about government will be more difficult to justify than a law with respect to some other subject whose effect on such communications is unrelated to their nature as political communications.

99 (1996) 134 ALR 400 at 405-6.

100 Ibid at 406.

101 Ibid at 405.

102 Ibid at 418.

103 Ibid at 423.

104 Ibid at 420.

105 Ibid at 431.

106 Ibid at 412.

107 Ibid at 411.

108 Ibid at 412.

109 (1992) 177 CLR 106.

110 Ibid at 144 per Mason CJ.

111 Ibid at 145. See also Deane and Toohey JJ at 175 and McHugh J at 238 for a conclusion that the potential for the corruption of the political process did not amount to a compelling justification for restricting freedom of political communication.

112 See also: Commonwealth Parliament Joint Standing Committee on Electoral Matters, 1993 Federal Election Report (1994), Dissenting report of Mr Connolly MP, Senator Minchin, Senator Tierney, and Mr Cobb MP at 162-3, where s 329A is described as “a heavy-handed response to a highly marginal phenomenon”, as the “preferential voting system was hardly in jeopardy before the implementation of section 329A”. The dissenting report called for the repeal of s 329A. Senator Chamarette also supported this recommendation.

113 (1996) 134 ALR 400 at 406 per Brennan CJ, at 415 per Toohey and Gaudron JJ and at 423

114 per McHugh J.

115 Ibid at 409.

116 Ibid at 411-2.

117 Commonwealth Parliament Joint Standing Committee on Electoral Matters, 1993 Federal Election Report, (1994), Dissenting report of Mr Connolly MP, Senator Minchin, Senator Tierney, and Mr Cobb MP at 163 (emphasis in original).

118 (1992) 177 CLR 106. The issues which arise from the Langer case were also addressed in the case of Muldowney v South Australia (No C 22 of 1993) which was argued before the High Court in the same week as Langer. The case concerned a similar provision in South Australian legislation. When the High Court hands down its judgment in this case, further light may be spread on these issues.