ALBERT LANGER v. AUSTRALIAN ELECTORAL COMMISSION No. VG 96 of 1996 FED No. 195/96 Constitutional Law - The Legislature - Elections COURT IN THE FEDERAL COURT OF AUSTRALIA VICTORIAN DISTRICT REGISTRY GENERAL DIVISION BLACK CJ, LOCKHART and BEAUMONT JJ HRNG MELBOURNE, 28 February 1996 #DATE 1:3:1996 #ADD 29:3:1996 Mr Albert Langer (the appellant) appeared in person. For the Respondent : Peter Buchanan QC with Charles Gunst instructed by Australian Government Solicitor For the Human Rights and Equal Opportunity Commission : R Castan QC with G T Pagone appeared as amicus curiae ORDER THE COURT ORDERS THAT: 1. Leave to appeal from the judgment of the Supreme Court of Victoria given on 8 February 1996 be granted, in so far as the same may be necessary. 2. The appeal against the orders made by the Supreme Court on 8 February 1996 be dismissed, with costs. This dismissal shall not extend to any other part of the matter before this Court; and in particular, shall not extend to the question whether this Court has jurisdiction concerning the proceeding for contempt heard and determined by the Supreme Court on 14 February 1996, including any appeal against the sentence of imprisonment imposed on 14 February 1996 in that proceeding. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. JUDGE1 INTRODUCTION BLACK CJ, LOCKHART AND BEAUMONT JJ This is an appeal, (or, for reasons to be mentioned later, perhaps an application for leave to appeal) brought by Mr. Langer, the appellant, from orders made by the Supreme Court of Victoria (Beach J) in an application made to that Court by the Australian Electoral Commission under s.383(1) of the Commonwealth Electoral Act 1918 (Cth) ("the Act"). 2. Section 383(1) is as follows: "383.(1) Where a person has engaged, is engaging or is proposing to engage in any conduct that constituted, constitutes or would constitute a contravention of, or an offence against, this Act or any other law of the Commonwealth in its application to elections, a prescribed court may, on the application of: (a) in a case where the conduct relates to an election - a candidate in the election; or (b) in any case - the Electoral Commission; grant an injunction restraining the first-mentioned person from engaging in the conduct and, if in the opinion of the court it is desirable to do so, requiring that person to do any act or thing." 3. By s. 383(8), federal jurisdiction was granted to the Supreme Court (as a "prescribed court") in the matter; and by s.383(9) an appeal lies to this Court from a judgment or order of a prescribed court exercising that jurisdiction. The Supreme Court was therefore exercising federal jurisdiction. 4. The offence relied on by the Commission for the purposes of s. 383(1) was alleged to be an offence against s. 329A of the Act, which reads as follows: "329A. (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 a ballot paper otherwise than in accordance with section 240. Penalty: Imprisonment for 6 months. (2) In this section: 'publish' includes publish by radio or television." 5. The expression "House of Representatives Election" means an election of the House of Representatives (s. 4). The term "relevant period" is defined in s. 322 as follows: "In this part, 'relevant period', in relation to an election under this Act, means the period commencing on the issue of the writ for the election and expiring at the latest time on polling day at which an elector in Australia could enter a polling booth for the purpose of casting a vote in the election." 6. Section 240 of the Act provides: "In a House of Representatives election a person shall mark his or her vote on the ballot-paper 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) in the squares opposite the names of all the remaining candidates so as to indicate the order of the person's preference for them." 7. The Commission moved the Supreme Court for an injunction in the following terms: "...an order that until 6.00 p.m. on 2nd March 1996 the defendant, Albert 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 persons to vote at the federal election for the House of Representatives to be held on 2nd March 1996 by filling in 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" (Emphasis added). 8. For the reasons then given, on 8 February 1996, Beach J made the order in the terms applied for, save that the order was expressed to be in force "(u)ntil 6.00 p.m. on 2 March 1996 or further order" (emphasis added). 9. At first instance, there was no dispute about the fact that the appellant had published advertising material advocating optional preferential voting, which was described by the learned primary Judge as follows: "The advertisement is headed at its top 'How to Vote for Neither]' It displays photographs of the Prime Minister and the Leader of the Opposition, labelling them 'Tweedledum' and 'Tweedledee' respectively, and a how to vote card. The how to vote card is headed 'House of Representatives'. Immediately beneath the words 'House of Representatives' are the words: 'Number the candidates you choose in the order of your choice. Number all the remaining candidates equal last'. Under those words are four squares or boxes with the numbers 1, 2, 3 and 3 in them. Alongside the square numbered 1 and in large print are the words 'Most Acceptable'. Beneath those words and in smaller print are the words 'The least worst party'. Alongside the square numbered 2 and in large print are the words 'Barely Tolerable'. Beneath those words and in smaller print are the words 'The next least worst party'. Alongside the first square numbered 3 and in large print is the word 'Tweedledum'. Beneath it and in smaller print are the words 'The completely rejected party'. Alongside the second square numbered 3 and in large print is the word 'Tweedledee'. Beneath it are the words 'The equally rejected party'. Towards the bottom of the how to vote card are the words: 'Remember - Number every box to make your vote count'. Underneath the how to vote card are the words: 'A ballot paper marked 1, 2 and 3 for independent, Green and/or Democrat candidates, and 4 and 4 for both ALP and Coalition candidates, will count as a formal vote for the candidates you support. Such a vote will not be transferred to the ALP or the Coalition if the candidates you want are eliminated. Ballot papers such as '1, 2, 2, 2...' (or '1, 2, 3, 3...') are formal votes for the first candidate (or the first two) in House of Representatives elections.)" 10. The case for the Commission in the Supreme Court was that, properly construed, s. 240 requires the squares on a ballot paper to be consecutively numbered commencing with the number 1 and repeating no number. But the appellant was, the Commission claimed, seeking to persuade electors to number the candidates they favour in the order of their choice and then to give the same number to each of the remaining candidates, effectively placing such candidates equal last. For example, where there are five candidates, the three favoured candidates are to be given the numbers 1, 2 and 3, while each of the remaining candidates is to be given the number 4. It was said that, by encouraging electors to fill in their ballot papers in that fashion, the appellant was encouraging them to fill in their ballot papers otherwise than in accordance with s. 240. THE REASONING AT FIRST INSTANCE 11. His Honour initially rejected a submission that s. 329A was invalid, the High Court having the previous day upheld its validity in a decision to which further reference will be made later (see Langer v The Commonwealth, High Court of Australia, reasons published 20 February 1996, unreported - orders made 7 February 1996). 12. Beach J then turned to an argument advanced by the appellant which relied upon the provisions of s. 270 of the Act which, relevantly, provides: "270. (2) Where a ballot-paper in a House of Representatives election in which there are 3 or more candidates: (a) has the number 1 in the square opposite to the name of a candidate; (b) has other numbers in all the other squares opposite to the names of candidates or in all those other squares except one square that is left blank; and (c) but for this subsection, would be informal by virtue of paragraph 268(1)(c); then: (d) the ballot-paper shall not be informal by virtue of that paragraph; (e) the number 1 shall be taken to express the voter's first preference; (f) where numbers in squares opposite to the names of candidates are in a sequence of consecutive numbers commencing with the number 1 - the voter shall be taken to have expressed a preference by the other number, or to have expressed preferences by the other numbers, in that sequence; and (g) the voter shall not be taken to have expressed any other preference. (3) In considering, for the purposes of subsection (1) or (2), whether numbers are in a sequence of consecutive numbers, any number that is repeated shall be disregarded." 13. The primary Judge rejected the appellant's contention that, in encouraging electors to vote informally in respect of certain candidates, he was not doing anything unlawful, as the votes of electors voting in the manner he advocates would still be formal votes by virtue of the provisions of sub-ss. (2) and (3) of s. 270. His Honour said: "In my opinion the fact that the votes of electors voting in the way the defendant advocates may be saved from being totally informal by reason of the provisions of those sub-sections, is not to the point. The simple issue for the court to determine is whether the defendant is encouraging persons who will vote at the Federal election on 2nd March to fill in their ballot papers otherwise than in accordance with s. 240. If he is, then he is committing an offence under s. 329A of the Act and the Commission is entitled to seek injunctive relief against him in accordance with the provisions of s.383 of the Act." 14. (Although his Honour did not refer to it, mention should be made here of s. 268 of the Act, relevantly as follows: "(1) A ballot-paper shall (except as otherwise provided by section 239, and by the regulations relating to voting by post) be informal if: ... (c) subject to subsection 270(2), in a House of Representatives election, it has no vote indicated on it, or it does not indicate the voter's first preference for 1 candidate and an order of preference for all the remaining candidates: Provided that, where the voter has indicated a first preference for 1 candidate and an order of preference for all the remaining candidates except 1 and the square opposite the name of that candidate has been left blank, it shall be deemed that the voter's preference for that candidate is the voter's last and that accordingly the voter has indicated an order of preference for all the candidates: Provided further that, where there are 2 candidates only and the voter has indicated his or her vote by placing the figure 1 in the square opposite the name of 1 candidate and has left the other square blank or placed a figure other than 2 in it, the voter shall be deemed to have indicated an order of preference for all the candidates; ... (3) A ballot-paper shall not be informal for any reason other than the reasons specified in this section, but shall be given effect to according to the voter's intention so far as that intention is clear.") 15. Beach J next addressed a submission by the appellant that there was no requirement by s. 240(b), express or implied, to the effect that an elector write numbers consecutively and that use of the same number on more than one occasion was not prohibited. His Honour said: "In my opinion it is unnecessary to imply any words into s. 240(b). A reading of the section leaves me in no doubt but that the intention of the legislature was to ensure that, once an elector has placed the number 1 in the square opposite the name of the candidate for whom the elector voted as his or her first preference, the elector then write the numbers 2, 3, 4 and so on in numerical sequence in the squares opposite the names of the remaining candidates so as to indicate the order of the elector's preference for them. I consider that that is the only sensible interpretation of the words 'writing the numbers 2, 3, 4 and so on'. The elector is required to indicate his preference for the candidates by ranking them in the order of his choosing. He does that by numbering them in numerical order and by only using each number once." 16. Reliance was placed by Beach J upon the Supplementary Explanatory Memorandum to the Electoral and Referendum Amendment Bill 1992, the relevant paragraphs of which shall be set out later. 17. His Honour could not accept an argument by the appellant that, where an elector rejected more than one candidate, the case required assigning a repeated number as an equal last preference with respect to all the rejected candidates, as there is simply no other way specified for an elector to indicate that choice. Referring to observations of Barwick CJ in Faderson v Bridger (1971) 126 CLR 271 (at 272), Beach J said: "In my opinion the section imposes a duty upon an elector to express a preference even though he may not have a preference for any of the candidates." His Honour added: "It is not open under s. 240 for an elector to repeat a number on the ballot paper because the elector claims not to prefer one candidate ahead of the other. Even if he does not like any of the candidates he has a duty to indicate a preference among them, and, as the learned Chief Justice pointed out (in Faderson) that does not present him with a task he cannot perform. The fact that an elector commits no offence by not marking the ballot paper in such a fashion is irrelevant. He or she has a duty to do so and the results of elections demonstrate that the vast majority of electors fulfil that duty." 18. On the question of the exercise of the Court's discretion under s. 383 to grant injunctive relief, Beach J said that, although the Court may well decline to intervene if the conduct were trivial and unlikely to be repeated, the relief sought should be granted since: "(Mr. Langer)...is seeking by his actions to achieve the result that no candidate for election will be returned with an absolute majority of votes as required by the Act, and that a supplementary election will need to be held." THE CONTEMPT PROCEEDINGS 19. On 14 February 1996, the matter was again before Beach J when his Honour dealt with a contention that the appellant was in contempt of court by reason of a statement made by him that he did not propose to comply with the injunction granted on 8 February. His Honour found that the defendant had breached the order and that, if not prevented from doing so, would continue to breach it. Beach J sentenced the appellant to be imprisoned until 30 April 1996. 20. In the notice of appeal in the present matter, the only order challenged is the order made on 8 February. However, in opening his appeal, the appellant indicated that he also wished to appeal against the order made on 14 February. We will return to this later. THE JUDGMENT OF THE HIGH COURT IN LANGER v THE COMMONWEALTH 21. As has been noted, on 7 February the High Court made its order to the effect that s. 329A was valid. The Court's reasons for judgment were published on 20 February, that is after Beach J made his orders. 22. In his challenge to the validity of s. 329A, the appellant contended before the High Court that he was constitutionally entitled to publish material encouraging persons to fill in their ballot papers otherwise than in accordance with s. 240 so that, if they so acted, their ballot papers would be informal or would be saved from informality by the saving provisions (i.e. s. 268(1)(c) and s. 270(2)). This entitlement was said to be conferred by the requirement expressed in s. 24 of the Constitution that the members of the House of Representatives be "chosen by the people". A voter, he argued, must be free to indicate the candidates which the voter does not choose as well as the candidate or candidates which the voter does choose; and, in some circumstances, that can be done only by the filling in of a ballot paper otherwise than in accordance with s. 240. It was said that s. 329A cannot validly prohibit the encouragement of voters to exercise that right of choice which the Constitution allows. A secondary argument, which was raised, but apparently not pressed, was that s. 329A is invalid because it infringes the freedom of communication about political matters which the High Court has held to be implied in the Constitution (see the reasons of Brennan CJ at pp.3-4). 23. The High Court, Dawson J dissenting, rejected the appellant's primary submission. IS LEAVE TO APPEAL REQUIRED? 24. As has been noted, the order made by Beach J was expressed to remain in force "until 6.00 p.m. on 2 March or further order". In the course of his reasons, his Honour described the application as one for interlocutory relief. It may be that the orders made were, in truth, final rather than interlocutory, but it is unnecessary to resolve this question now. The points raised by the appeal are of such general importance to warrant the grant of leave in any event and, to eliminate any doubt, leave to appeal should be granted, in so far as this may be necessary. APPLICATION BY THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION FOR LEAVE TO INTERVENE 25. At the commencement of the hearing of the appeal, Mr. Castan QC and Mr. G.T. Pagone, appearing for the Human Rights and Equal Opportunity Commission, sought leave to intervene pursuant to s. 11(1)(o) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). For the reasons the Court then gave, this application was deferred, but counsel were granted leave to appear as amicus curiae. CONCLUSIONS ON THE APPEAL Section 240 26. The primary question in the appeal concerns the construction of s. 240 of the Act. It becomes relevant because of ss. 329A and 383 of the Act. 27. Section 240 (the terms of which were set out earlier) is concerned with the marking of votes on ballot papers in a House of Representatives election. 28. As has been noted, if a voter fails to mark his or her vote on the ballot-paper in the manner specified in s. 240, the consequences are stated in ss. 268 and 270. 29. Section 245(1) states that it shall be the duty of every elector to vote at each election. Any elector who fails to vote at an election without a valid and sufficient reason for such failure is guilty of an offence which attracts a penalty of $50 (s. 245(15)). It is not a valid and sufficient reason for failure to vote that an elector does not approve of any candidate and all candidates meet with the disapproval of the elector: Faderson v Bridger (above); Lubcke v Little (1970) VR 807; Douglass v Ninnes (1976) 14 SASR 377; Langer v The Commonwealth, High Court, per Gummow J at 42. 30. Although expressed in mandatory language s. 240 does not impose a legally enforceable duty on the voter to mark his or her vote on the ballot-paper in the manner stated in the section. The question was examined by the High Court in Langer v The Commonwealth, which is authority for the proposition that s. 240 was intended not to impose a legal duty on the voter, but to be interpreted as if it gave directions to a voter as to how the voter is to discharge the statutory duty to vote in a Federal election. 31. The appellant argued that to construe s. 240 as it was construed by the Supreme Court in effect adds to the words of the section the words "consecutively and without repeating any numbers" after the words in parentheses in paragraph (b) of the section. This was said to be an impermissible course and to involve reading into an Act of the Parliament words which are not there. Reliance was placed on authorities including Thompson v Goold and Co (1910) AC 409 per Lord Mersey at 420 and BP Refinery (Westernport) Pty Limited v Shire of Hastings (1977) 180 CLR 266 at 280. 32. In our opinion the plain meaning of s. 240 is that squares in a ballot-paper are to be marked with as many consecutive numbers as there are candidates. The voter must place a number in each square commencing with the number "1": "and rising consecutively, so as to indicate the voter's order of preference for each candidate. A complete expression of preferences for all candidates is required irrespective of the difficulty that a voter may have in deciding the order of preference. A ballot-paper that gives the same number to more than one candidate is in breach of the directions that the section addresses to the voter, although that breach is not made punishable by fine or imprisonment." Langer v The Commonwealth per McHugh J at 32. 33. The consecutive numbers 2, 3 and 4 precede the words "and so on" in s. 240; and this means that the numbering must be carried on in the same manner, that is consecutively and without repetition of any numbers. 34. If a voter marks a vote on the ballot-paper by repeating the same number against the names of two or more candidates, the voter does not "indicate the order of the person's preference for ..." the candidates within the meaning of s. 240(b). To give the same repeated number to two or more candidates fails to express a preference between them. At least in the present context of a requirement to indicate an order of preference, the word must be taken to have been used in its ordinary meaning as involving one thing being put before another. 35. Mr Langer and Mr Castan submitted in effect that, for fundamental reasons, decisive force had to be given to the expression "so as to indicate the order of the person's preference" to the extent that if a person did not wish to cast any vote in favour of a candidate - the completely rejected candidate and the equally rejected candidate in Mr Langer's pamphlet - s. 240 itself, on its proper construction, did not compel that and allowed for a 1, 2, 3, 3 marking on a ballot-paper. In our view however this argument cannot be sustained in the context of legislation that, validly as the High Court has held, provides for compulsory voting using the preferential method: see generally Langer v The Commonwealth at 4-6 per Brennan CJ and at 36 per McHugh J. 36. Moreover, in our view, the construction of s. 240 that we consider to be correct (also that adopted by Beach J) is in conformity with the views expressed by each of the members of the High Court in Langer v The Commonwealth of Australia. 37. It is quite clear that McHugh J specifically rejected the construction of s. 240 contended for by the appellant, as appears from the passage from his Honour's reasons previously cited. 38. Mr. Langer conceded, of course, that the observations of McHugh J were against him; but he submitted that none of the other four members of the court had expressed a view about the construction of s. 240. We do not agree, and we now turn to consider each of the other judgments in Langer v The Commonwealth. 39. At the commencement of his judgment, Brennan CJ observed that the method of voting prescribed by s. 240 "can be described as full preferential voting" and we take the Chief Justice to have used this description in contradistinction to the method that Mr. Langer contends is allowed by s. 240. That method cannot be described as full preferential voting; rather, it is a method described as optional preferential voting or selective preferential voting: see per Dawson J, especially at 12. 40. Moreover, the following passage in the judgment of the Chief Justice (at 6) seems to us to involve an implicit rejection of the foundation of Mr. Langer's argument. The Chief Justice said: "It follows that the Parliament is empowered to prescribe a method of voting in an election for the House of Representatives that requires a voter to fill in a ballot paper in accordance with s. 240 although that method requires a voter to choose by allocating preferences among candidates for whom the voter does not wish to vote. It is not to the point that, if a ballot paper were filled in otherwise than in accordance with s.240, the voter would better express the voter's political opinion" (Our emphasis). 41. Dawson J, dissenting, considered that s. 329A was not a valid enactment of the Parliament. His Honour said of s. 240 that it "requires numbers to be written in the squares opposite the names of all candidates so that, when the numbers are read consecutively, the voter's order of preference of all candidates is indicated" and then (at 12) set out examples of votes that s. 270 would save from informality. Those examples include the "1, 2, 3, 3" example put forward by Mr. Langer as a vote that may validly be cast in accordance with s. 240, as that section stands without modification by any other section. Having described the result brought about by s. 270 operating together with s. 240, Dawson J said (at 12): "This result has been described as optional preferential voting or, perhaps more accurately, selective preferential voting as opposed to the full preferential system of voting which is envisaged by s.240 standing alone" (Our emphasis). 42. It is of course quite true that for some purposes ss. 240, 268 and 270 must be read together but this is to decide what methods of casting a formal (i.e. effective) vote at an election for the House of Representatives are allowed. The construction of s. 240, standing alone, is a quite distinct matter. 43. Likewise, the joint judgment of Toohey and Gaudron JJ involves, in our view, at least an implicit rejection of the construction contended for by the appellant and supported by Mr. Castan. Their Honours said of s. 329A (at 22): "And odd though it be, its purpose would seem to be to limit the possibility of voters deliberately taking advantage of the provisos to s. 268(1)(c) or of the provisions of s. 270(2) so as to express a preference for some only of the candidates. In any event, it operates that way and, in so doing, it assists in the maintenance of a system of full preferential voting, to the extent that that is possible in a context where effect is given to ballot-papers that do not express a preference for all candidates by deeming them so to do, or by counting them to the extent that an order of preference is revealed" (Our emphasis). 44. The effect to which their Honours refer is of course the effect given by ss. 268(1)(c) and 270(2). 45. Mr. Castan sought to place some reliance upon the passage in the joint judgment where their Honours said (at 24): "It is not strictly correct to say that s. 240 obliges a voter to express a preference for a candidate whom he or she wishes to vote against. The section must be read in the context of the Act as a whole, including s. 270(2). When so read, a voter is free, if there are three or more candidates, to vote against a candidate by ensuring that his or her ballot paper is exhausted before it is counted towards the candidate whom he or she wishes to vote against. Thus, for example, if there are three candidates and the voter wishes to vote against two of them, he or she can do so by voting 1, 2, 2." 46. But in this passage, which must be read in the context of what their Honours said elsewhere, we do not take Toohey and Gaudron JJ to be saying that s. 240, construed alone, bears the construction contended for by the appellant. On the contrary, by referring to the obligations imposed upon a voter when s. 240 is read in the context of the Act as a whole, their Honours may be taken to accept that if s.240 were read standing alone it would, in one sense, "oblige" a voter to express a preference for a candidate against whom he or she wished to vote. As we point out elsewhere, for the purposes of s. 329A, s. 240 does have to be read alone. 47. The other member of the court, Gummow J, was quite specific in what he said about s. 240. His Honour said (at 45): "Section 240 ... states that electors 'shall mark' their vote on the ballot-paper in a particular fashion so as to cast a fully exercised preferential vote. The other provisions of ss.268 and 270 are ancillary (in the manner I have described) to the primary objective of the legislation, and do not evince any legislative intent to make optional or selective preferential voting available as an alternative to full preferential voting" (Our emphasis). 48. We should note too that his Honour said (at 46) that s. 329A was a law that prohibited conduct of the nature and quality identified in it by reference to s. 240, which had the tendency to undermine the efficacy of the system in accordance with which the vote of an elector is to be recorded and counted. He added: "That system does not include optional or selective preferential voting. The key to that system is provided by the expression 'shall mark' in s.240 and it is in aid of this that s. 329A operates" (Our emphasis). 49. Beach J did not, of course, have the benefit of the High Court's reasons in Langer v The Commonwealth since, although the High Court published its order on 7 February 1996, before Beach J delivered judgment, the High Court's reasons for judgment were not delivered until 20 February 1996, by which time the injunction had been granted. 50. We should add that we reject the submission that this is a case for the application of the principle against reading into an Act of Parliament words that are not there. The construction that we consider to be correct does not involve any such process. The additional words used in the injunction granted by Beach J are desirable for the purpose of making it clear beyond any reasonable argument what it is that the injunction prohibits, but as a matter of statutory interpretation the language of the section is perfectly clear, in our opinion, without any such words. 51. Whether or not the views expressed by the members of the High Court about the construction of s. 240 are, as a matter of the strict operation of the doctrine of precedent, binding upon us as part of the ratio of the Court's decision in Langer v The Commonwealth, what their Honours have said about the section must, quite obviously, command great respect. Section 329A 52. We turn to s. 329A. The section has two primary components: first, the prohibition upon a person during the relevant period and in relation to a House of Representatives election under the Act, printing, publishing or distributing (or causing, permitting or authorizing to be printed, published or distributed) any matter or thing; second, the person is prohibited from doing so with the intention of encouraging persons voting at the election to fill in a ballot-paper otherwise than in accordance with s. 240 (that is, otherwise than by writing the number "1" in the square opposite to the name of the candidate for whom the person votes as his or her first preference, and otherwise than by writing the numbers 2, 3 and 4, with as many other additional consecutive numbers as there are candidates, without repeating any numbers, so as to indicate the order of preference for the candidates for election). 53. In our opinion the intention of which s. 329A speaks is an intention of the accused to encourage persons voting at the election to fill in ballot-papers in a manner which in fact contravenes s. 240, whether the accused believed that the form of ballot-paper advocated by the accused accorded with s. 240 or not. 54. Section 329A was inserted in the Act by s. 27 of the Electoral and Referendum (Amendment) Act 1992 (Cth) which commenced on 24 December 1992. 55. The Supplementary Explanatory Memorandum to the Electoral and Referendum (Amendment) Bill 1992 states with respect to clause 22A (which inserted the new s. 329A) as follows: "Clause 22A - Encouraging persons to mark ballot papers otherwise than in accordance with Act 6. Amendment (6) inserts a new clause 22A, which inserts new section 329A of the Principal Act to create an offence during an election period of intentionally encouraging electors to mark their ballot papers in any way other than consecutively and fully. This amendment was recommended by the Joint Standing Committee on Electoral Matters at paragraph 3.42 of its report on the 1990 Federal Election. 7. This new section will make it an offence to advocate an 'optional preferential vote' by making use of the formality criteria, which do not require fully consecutive numbering for a vote to be formal. For example, it will be an offence to encourage electors to mark their ballot papers: '1, 2, 2, 2, ...'." 56. This is a clear indication that in drafting s. 329A it was understood that s. 240 bore the construction which we have adopted. 57. If the intention required by s. 329A was an intention that the person encouraging persons to fill in ballot-papers in a particular manner must believe that the manner advocated is otherwise than that prescribed by s. 240, the conclusion must follow that an injunction cannot be obtained under s. 383 to restrain contravention of s. 329A unless the person understands the proper construction of s. 240. It would follow that the only persons who could be restrained by such injunction would be those who correctly construe s. 240. This would be a surprising result, and thus supports our interpretation of s. 329A. Discretion 58. There remains the question whether Beach J erred in exercising his discretion in favour of granting the injunction. The power of a prescribed court (in this case the Supreme Court of Victoria) to grant an injunction pursuant to s. 383 is a power, exercisable in the public interest, to ensure that Federal elections are properly conducted and that ballot-papers are marked and votes cast by voters in accordance with the method laid down by the Parliament in s. 240. 59. The evidence before Beach J satisfied his Honour, in our opinion correctly, that it was the intention of the appellant to encourage electors at the forthcoming Federal election to fill in their ballot-papers by not writing the numbers 2, 3, 4 and so on consecutively without writing any particular number more than once. 60. Beach J perceived that the appellant had clearly evinced an intention to act in the future in accordance with the construction of s. 240 for which he contended, namely, permitting a repetition of a particular number in the square opposite the names of candidates. 61. His Honour concluded that it was necessary to prevent the commission of the acts proscribed by s. 329A by injunctive relief. We are not persuaded that his Honour erred in the exercise of that discretion. Mention was made at one stage of his Honour's reference in the course of his reasons for judgment on the question of discretion to the fact that the appellant had during the course of the hearing before the Supreme Court described himself as "a revolutionary Communist". Notwithstanding such reference by his Honour, we are far from persuaded that it could have played a material role in the exercise of his Honour's discretion. His Honour's reasons for judgment must be read as a whole to determine the circumstances that were regarded by him as relevant in deciding to grant the injunction against the appellant. We perceive no error of principle in the exercise of that discretion. 62. It should be noted that, on behalf of Mr Langer, reference was made to the principles of the general law that limit the grant of injunctions to enforce the criminal law (see The Commonwealth v John Fairfax and Sons Ltd (1980) 147 CLR 39, per Mason J at 49-50; Onus v Alcoa of Australia Ltd (1982) 149 CLR 27, per Wilson J at 63). But those principles can have no direct application in the present case since the Parliament has specifically legislated for the grant of an injunction in the present context. Conclusion 63. As mentioned earlier, the appellant informed us that he wished to appeal against the order of the Supreme Court made on 14 February that he be imprisoned for contempt. We indicated in the course of argument that it was not possible at this stage to deal with that question, the appeal having been brought on for hearing within a matter of days after the filing of the notice of appeal and no prior notice of an appeal against the order for imprisonment having been given to the Commission. 64. In the opinion of the Court leave to appeal from the judgment of the Supreme Court of Victoria given on 8 February 1996 should be granted, in so far as the same may be necessary. 65. The appeal should be dismissed except with respect to the question whether this Court has jurisdiction concerning the proceeding for contempt heard and determined by the Supreme Court on 14 February 1996, including any appeal against the sentence of imprisonment imposed on 14 February 1996 in that proceeding.