ALBERT LANGER v THE COMMONWEALTH OF AUSTRALIA AND OTHERS F.C. 96/002

Constitutional Law

COURT
HIGH COURT OF AUSTRALIA
BRENNAN CJ(1), DAWSON(2), TOOHEY(3), GAUDRON(3), McHUGH(4) AND GUMMOW(5) JJ
HRNG
CANBERRA, 4 October 1995
#DATE 7:2:1996 (Reasons 20:2:1996)
#ADD 20:2:1996

  The Plaintiff appeared in person

  Counsel for the Defendants           G. Griffith QC,
                                       Solicitor-General for the
                                       Commonwealth with
                                       S.J. Gageler and M.A. Perry

  Solicitors for the Defendants        Australian Government Solicitor
ORDER
  1.  Answer the question reserved as follows:

      Is section 329A of the Commonwealth Electoral Act 1918 a valid
      enactment of the Parliament of the Commonwealth?

      Answer:  Yes.

  2. The plaintiff pay the defendants' costs of the question reserved.
JUDGE1
BRENNAN CJ.   The following question was reserved by Deane J for the
consideration of the Full Court:
    "Is section 329A of the Commonwealth Electoral Act 1918 a
valid enactment of the Parliament of the Commonwealth?"

2.  Section 329A (1) of the Commonwealth Electoral Act 1918 ("the Act")
provides as follows:
    "(1) A person must not, during the relevant period (2) 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."

3.  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."

4.  The method of voting prescribed by this section can be described as full
preferential voting.  To cast an effective vote, a voter must indicate an
order of preference as among all the candidates whose names appear on the
ballot paper.  If the voter fails to indicate preferences in accordance with s
240, s 268(1)(c) applies:
    "(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 two 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."
Thus, subject to s 270(2), a ballot paper that is not filled in in accordance
with s 240 is excluded from the scrutiny as informal unless a preference is
deemed to have been indicated by a single blank square in accordance with the
provisos to s 268(1)(c).

5.  Despite the provisions of ss 240 and 268(1)(c), s 270(2) provides for a
remedial reading of a ballot paper that would otherwise be excluded from the
scrutiny:
    "(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."
Section 270(3) provides:
    "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."
The provisos to s 268(1)(c) and s 270(2) ("the saving provisions") save from
informality ballot papers that are filled in otherwise than in accordance with
s 240.

6.  The plaintiff contends that he is constitutionally entitled to publish
material encouraging persons to fill in their ballot papers otherwise than in
accordance with s 240 so that, if the encouragement is taken, their ballot
papers would be informal or would be saved from informality by the saving
provisions.  This entitlement is 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, so the argument goes,
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.  If I apprehend correctly the next
step in the argument, it is said that s 329A cannot validly prohibit the
encouragement of voters to exercise that right of choice which the
Constitution allows.  A secondary argument - raised but not pressed - is that
s 329A is invalid because it infringes the freedom of communication about
political matters which this Court has held to be implied in the Constitution
(3). Voter's choice in filling in ballot paper

7.  The method of choosing members of the House of Representatives is governed
by the Act.  The Parliament is empowered to prescribe that method by ss 31 and
51(xxxvi) of the Constitution, just as it is empowered by s 9 to prescribe the
method of choosing senators.

8.  In Judd v McKeon (4), an elector was prosecuted for failing to vote in a
Senate election without a valid and sufficient reason for that failure.
(Under the Act as it now stands that offence is created by s 245(15)(a)).  The
elector's reason for not voting was political antipathy towards all the
candidates.  His argument that a law prescribing compulsory preferential
voting was beyond the power conferred by s 9 of the Constitution was rejected.
Isaacs J said (5):
    "The community organized, being seised of the subject matter
of parliamentary elections and finding no express restrictions in the
Constitution, may properly do all it thinks necessary to make elections as
expressive of the will of the community as they possibly can be.  ...  A
method of choosing which involves compulsory voting, so long as it preserves
freedom of choice of possible candidates, does not offend against the freedom
of elections, as established and recognised by the Statute of Westminster I (3
Edw I c 5)."
What the Constitution requires is that the law prescribe a method of voting
which leaves the voter free to make a choice, not that the law leave the voter
free to choose the method of voting by which a voter's choice is to be made.
A method which requires full preferential voting satisfies the constitutional
requirement.  In Judd v McKeon, Knox CJ, Gavan Duffy and Starke JJ said (6):
    "In common parlance 'to choose' means no more than to make a
selection between different things or alternatives submitted, to take by
preference out of all that are available.  As an illustration of the meaning
of the corresponding noun 'choice' the Oxford Dictionary quotes the phrase 'I
have given thee thy choice of the manner in which thou wilt die,' and this use
of the word seems to exclude the idea that a right of choice can only be said
to be given when one or other of the alternatives submitted is desired by the
person who is to exercise the right, or, in other words, to choose between
them."
A refusal to vote on the ground that the elector would not wish to give a
preference to any candidate would be an "open challenge to the very essence of
the enactment" as Isaacs J said (7).

9.  In Faderson v Bridger (8), an elector who did not have any preference
among the candidates advanced that fact as a "valid and sufficient reason" for
not voting at a Senate election in which voters were required to "'place the
number 1 in the square opposite the name of the candidate for whom he votes as
his first preference', all the remaining squares to be marked with successive
numbers as the voter determines as contingent votes" (9).  The elector's
defence failed.  Barwick CJ, with whom McTiernan and Owen JJ agreed, said
(10):
    "However much the elector may say he has no personal
preference for any candidate, that none of them will suit him, he is not asked
that question nor required to express by his vote that opinion.  He is asked
to express a preference amongst those who are available for election, that is,
to state which of them he prefers if he must have one or more of them as
Parliamentary representatives, as he must, and to mark down his vote in an
order of preference of them.  ...  To face the voter with a list of names of
persons, none of whom he may like or really want to represent him and ask him
to indicate a preference amongst them does not present him with a task that he
cannot perform."

10.  The legislative power over elections for the House of Representatives
conferred by ss 31 and 51(xxxvi) is a plenary power and, as Isaacs J said in
Smith v Oldham (11) with reference to the power over federal elections:
    "The limits of plenary power end only with the subject
matter in respect of which it may be exercised."
Provided the prescribed method of voting permits a free choice among the
candidates for election, it is within the legislative power of the Parliament.
Section 24 of the Constitution does not limit the Parliament's selection of
the method of voting by which a voter's choice is made known so long as the
method allows a free choice.  Section 240 permits a voter to make a
discriminating choice among the candidates for election to the House of
Representatives.  An election in which members of the House of Representatives
are elected pursuant to such a method of voting achieves what s 24 requires,
namely, a House of Representatives composed of members directly chosen by the
people.

11.  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 vote would
better express the voter's political opinion.

12.  Since s 240 can reasonably be regarded as prescribing a method of freely
choosing members of the House of Representatives, a law which is appropriate
and adapted to prevent the subversion of that method is within power.  Section
329A is such a law. The saving provisions do not affect its validity.  They
are designed to minimise the exclusion of ballot papers from the scrutiny
provided the voter's intention clearly appears from the voter's partial
compliance with the method prescribed by s 240. But the saving provisions do
not detract from the power to enact s 329A in order to protect what the
Parliament intends to be the primary method of choosing members of the House
of Representatives.

13.  Once the generality of the power to enact laws relating to elections is
appreciated and the validity of s 240 is accepted, s 329A can be seen to be a
provision appropriate and adapted to the protection of the method of electing
members of the House of Representatives.

Freedom of communication
14.  The powers of the Parliament are impliedly limited so as to preserve that
freedom of political discussion which is essential to the maintenance of the
Commonwealth system of representative government.  But, as the judgments in
the free speech cases have shown (12), the extent of the limitation depends on
the particular circumstances, including especially the subject matter of the
law which impairs the freedom. In Australian Capital Television Pty Ltd v The
Commonwealth (13), Theophanous v Herald and Weekly Times Ltd (14) and Cunliffe
v The Commonwealth (15), I sought to explain the approach to be taken in
determining the validity of a law impugned on the ground that it impairs the
freedom of political discussion.  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
Cunliffe (16), I observed:
    "The constitutional freedom of political discussion ensures
freedom to engage in debate about the institutions of government and the
exercise of any kind of governmental power but it does not impair, much less
sterilize, the exercise of a power which might become the subject of political
debate."

15.  Section 329A does not prohibit discussion about the operation or
desirability of the method of voting prescribed by s 240 nor does it prohibit
advocacy of its amendment or repeal.  Section 329A operates in the context of
the method of voting prescribed by s 240 and prohibits intentional
encouragement of the filling in of ballot papers in a way which, if not within
the saving provisions, will result in the exclusion of the ballot paper from
the scrutiny and which, if within the saving provisions of s 270(2), will
result in a diminished expression of the elector's preferences.  The
prohibition contained in s 329A is thus a means of protecting the method which
Parliament has selected for the choosing of members of the House of
Representatives.  The restriction on freedom of speech imposed by s 329A is
not imposed with a view to repressing freedom of political discussion; it is
imposed as an incident to the protection of the s 240 method of voting.

16.  If the Act had prescribed methods of voting alternative to those
prescribed by s 240, there would be much to be said for the view that no law
could preclude a person from encouraging voters to vote by an alternative
method.  The saving provisions do not prescribe an alternative method; they
merely save from invalidity some ballot papers which are not filled in in
accordance with the method which the Act prescribes.  Nor does s 329A prohibit
a person from informing electors of the state of the law.  It simply prohibits
encouragement of voters to fill in their ballot papers otherwise than in
accordance with the method of voting prescribed by the Act.

17.  Section 329A is therefore valid.

18.  I would answer the question reserved:  Yes.
JUDGE2
DAWSON J.   By a question reserved by Deane J for its consideration, the Court
is asked to determine the validity of s 329A of the Commonwealth Electoral Act
1918 (Cth) ("the Act"). That section 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 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."

2.  By s 322 "relevant period" means in relation to an election 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.

3.  It would appear that the "mischief" to which s 329A is directed is not the
casting of an informal vote but rather the casting of a vote in a particular -
and permissible - form.  To appreciate that, it is necessary to refer to other
sections of the Act which prescribe the preferential system of voting which is
employed in the election of members of the House of Representatives.

4.  Section 240 itself 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."
The purpose of requiring an elector to mark the ballot-paper in the manner
prescribed by s 240 is revealed by s 274(7)(d), which directs the divisional
returning officer to count the votes as follows:
    "(i) the candidate who has received the fewest first
preference votes shall be excluded, and each ballot-paper counted to the
candidate shall be counted to the candidate next in the order of the voter's
preference;
    (ii) the process of excluding the candidate who has the
fewest votes, and counting each of his or her ballot-papers to the unexcluded
candidate next in the order of the voter's preference, shall be repeated until
only 2 candidates remain in the count; and
    (iii) if, following the ascertainment of the first
preference votes given for each candidate or the exclusion of candidates under
this paragraph, a candidate has an absolute majority of votes, that candidate
shall be elected".
Under s 274(8) a ballot-paper is to be set aside as exhausted where on a count
it is found that the ballot-paper expresses no preference for any unexcluded
candidate.

5.  Section 268(1) (17) provides that a ballot-paper may be informal for a
number of reasons.  Under par(c) it is informal if it has no vote indicated on
it or it does not indicate the voter's first preference for one candidate and
an order of preference for all the remaining candidates.  But s 268(1) is
subject to two provisos.  The first is that where the voter has indicated a
first preference for one candidate and an order of preference for all the
remaining candidates except one and the square opposite the name of that
candidate has been left blank, it is 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.  The second proviso
is that where there are two candidates only and the voter has indicated his or
her vote by placing the number 1 in the square opposite the name of one
candidate and has left the other square blank or placed a number other than 2
in it, the voter is deemed to have indicated an order of preference for all
the candidates.

6.  Section 270(2) (18) and (3) provide:
    "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."

7.  The effect of s 270, which appears under the heading "Certain votes with
non-consecutive numbers to be formal", is to modify s 240, which 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
for all the candidates is indicated.  Under s 270 a voter is not required to
number each square so that these numbers may be read consecutively provided
that he or she places the number 1 in one square and fills in all the other
squares save the one which may be left blank under the provisos to s 268(1).
This is made clear by s 270(3) which provides that a number which is repeated
is to be disregarded.  The result is, it would seem, that s 270 saves from
informality votes such as the following:
    A          B          C          D
    1          1          1          1
    2          2          2          2
    2          2          3          3
    2          2          3          3
    2                     3

The ballot-papers in A and B would be exhausted after the first preference was
counted.  The ballot-papers in C and D would be exhausted after the second
preference was counted.  Thus, a voter may by repeating a number avoid
expressing a preference for a particular candidate or particular candidates
and nevertheless have his or her vote counted.  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.

8.  Whilst it was appreciated, indeed intended, that s 270 should have the
effect of saving votes which, by reason of mistake on the part of the voter,
could not be read consecutively, it may not have been appreciated that the
effect of the section was to allow voters to avoid intentionally the
expression of any preference, and hence any vote, for a particular candidate
or particular candidates.

9.  When ss 240, 268 and 270 are read together - as they must be - it is clear
that the Act allows more than one method of casting a formal vote.  A
ballot-paper not completed in accordance with s 240 may nevertheless
constitute a formal vote if the requirements of s 268 or s 270 are satisfied.
In my view, it is an incorrect construction of the Act to say that s 240 alone
prescribes the manner in which a formal vote may be cast. Although ss 268 and
270 in terms deal with the counting of votes so as to save votes
unintentionally cast in a form different from that prescribed by s 240, it is
plain that the effect of those provisions is to allow a voter to cast a formal
vote with a ballot-paper which is not in accordance with s 240.

10.  In the 1990 Federal Election Report (19) from the Joint Standing
Committee on Electoral Matters it was said:
    "The issue of encouraging electors to record their votes
other than in accordance with the instructions on the ballot paper arose again
during the 1990 election and received considerable media attention.  In some
instances electors were urged not to express their preferences fully - for
example, by voting 1, 2, 2, 2 etc.  This effectively allows optional
preferential voting."
The reference in that passage to the recording of votes otherwise than in
accordance with the instructions on the ballot-paper appears not to be
entirely accurate.  The instruction on the ballot-paper merely instructs
voters: "Remember .... number every box to make your vote count." (20) That
instruction is, in any event, at variance with the provisos to s 268.

11.  The Report goes on to say that optional preferential voting was an
unintended effect of s 270 which was designed "only to provide a safety net
for people who make a genuine mistake in filling out their ballot papers".  It
continues:
    "This practice is of considerable concern because of the
significant increase in the number of House of Representatives exhausted votes
between the 1987 and 1990 elections - that is, an increase from 2082 exhausted
votes at the 1987 election to 18,765 in 1990.  Given the small margins
separating winning candidates at the 1990 election this figure is disturbing.
The AEC (Australian Electoral Commission) suggested that the increase in
exhausted votes would appear to indicate that the public attention given to
the matter may have had an undesirable effect.
    The AEC commented that it is very difficult to see how
section 270 of the Electoral Act could be amended to retain the safety net yet
avoid de facto optional preferential voting.  One avenue for dealing with the
problem is in the area of penalties for those who induce people to fill out
the ballot paper other than in accordance with the instructions under s 329(3)
of the Act."
Section 329(3) of the Act creates an offence arising from the
misrepresentation of a ballot-paper in a manner likely to induce an elector to
mark his or her ballot-paper otherwise than in accordance with the directions
on the ballot-paper.

12.  Section 329A, which was inserted in the Act in 1992 (21), was plainly
directed against the exercise of the right conferred by the Act to engage in
optional or selective preferential voting in a House of Representatives
election.  It does not, however, deny the right but seeks to prevent voters
becoming aware of its existence, at all events where the imparting of
information concerning its existence is intended to encourage its use.  If
there is a line between imparting information with an intention to encourage
its application and imparting information with an intention merely to inform
it must (save where there is active discouragement) be a thin one.  But I
shall return to this.

13.  Section 24 of the Constitution provides that the House of Representatives
shall be composed of members directly chosen by the people of the
Commonwealth. Although that section does not expressly require the choice to
be made by election, other sections, in particular ss 30 and 31, make it clear
that members are to be chosen by election.  And it is clear from s 30 that not
all of the people were intended to vote in elections so that the choice by the
people is to be made through the casting of votes by those eligible to vote.
The Constitution does not require the provision of any particular electoral
system (22). Thus, the provision in s 240 for a preferential voting system is
clearly within power notwithstanding that it requires a choice to be made in a
specified manner and, standing alone, requires a preference to be expressed in
respect of each candidate (23). Whatever the system, the Constitution requires
that a choice must be made and, as I pointed out in Australian Capital
Television Pty Ltd v The Commonwealth (24), the choice involved must obviously
be a genuine, or informed, choice which requires access on the part of the
voter to the available alternatives in the making of the choice.  Other
members of the Court adopted a different approach and found in the concept of
representative government or representative democracy an implied freedom of
communication which was to be read into the Constitution.  The freedom was
said to embrace the discussion of government and political matters (25).

14.  I was unable to accept the line of reasoning adopted by the majority of
the Court in finding a constitutionally guaranteed freedom of communication
because that guarantee was derived, in my view, from a notion of
representative government which does not appear from any requirement contained
in the Constitution itself (26).  The freedom of communication which I thought
to be required by the Constitution was confined to what is necessary for the
conduct of elections by direct popular vote as envisaged by ss 7 and 24 and
related sections.  Nevertheless, in my view, that requirement is sufficient to
invalidate s 329A of the Act.

15.  Section 31 of the Constitution provides that:
    "Until the Parliament otherwise provides, but subject to
this Constitution, the laws in force in each State for the time being relating
to elections for the more numerous House of the Parliament of the State shall,
as nearly as practicable, apply to elections in the State of members of the
House of Representatives."
Section 51(xxxvi) provides that the parliament may make laws for those matters
in respect of which the Constitution makes provision until the parliament
otherwise provides and, hence, parliament has power to make laws with respect
to the election of members of the House of Representatives.  It is that power
which was exercised in the enactment of the Act.  But it is clearly not a
power which is at large.  The Constitution having established in s 24 that the
House of Representatives shall be composed of members directly chosen by the
people of the Commonwealth, the elections with respect to which parliament is
given power to make laws by ss 31 and 51(xxxvi) must necessarily be elections
fulfilling the requirements of s 24.  That is to say, the legislative power
conferred by those provisions is a purposive power:  a power to make laws for
the purpose of implementing s 24.

16.  Since, as I have said, the choice which is required by s 24 must be a
genuine choice (27), those eligible to vote must have available to them the
information necessary to exercise such a choice.  In Cunliffe v The
Commonwealth (28) I expressed the view, to which I adhere, that the usefulness
of the doctrine of proportionality in determining the validity of laws under
the Constitution is confined to those laws which are enacted pursuant to a
purposive power.  Otherwise, the test must be whether there is sufficient
connection between the law and the subject-matter of the power.  But, for the
reasons which I have given, the power conferred by ss 31 and 51(xxxvi) may
properly be regarded as a purposive power and it is therefore open to test the
validity of a law enacted in the purported exercise of that power by asking
whether the law is reasonably and appropriately adapted to the achievement of
an end which lies within power.  To my mind, s 329A (or, more accurately, the
law inserting it in the Act) is not such a law.  It is a law which is designed
to keep from voters information which is required by them to enable them to
exercise an informed choice.  It can hardly be said that a choice is an
informed choice if it is made in ignorance of a means of making the choice
which is available and which a voter, if he or she knows of it, may wish to
use in order to achieve a particular result.

17.  If s 240 stood alone, s 329A would be supportable as a protection of the
preferential system of voting provided by the Act.  Upon any view, some
limitations upon freedom of communication are necessary to ensure the proper
working of any electoral system (29).  However, the method of preferential
voting which is established by the Act is that which may be discerned from ss
240, 268, 270 and 274 read together.  Sections 268 and 270 qualify the method
of voting prescribed by s 240 and s 270 makes available optional or selective
preferential voting as opposed to full preferential voting.  It is true that a
voter cannot cast a formal vote by simply placing the number 1 in the square
beside one candidate and leaving all the others blank. But the fact remains
that the Act permits voters intentionally to record a preference for only one
or some of the candidates standing for election by completing their
ballot-paper in the manner which I have described above.  To prohibit
communication of this fact (or at any rate communication in the form of
encouragement) is to restrict the access of voters to information essential to
the formation of the choice required by s 24 of the Constitution.  Thus, s
329A has the intended effect of keeping from voters an alternative method of
casting a formal vote which they are entitled to choose under the Act.

18.  It does not, to my mind, matter that the prohibition imposed by s 329A is
confined to the conveying of information with the intention of encouraging
persons voting at an election to fill in a ballot-paper otherwise than in
accordance with s 240.  To impart information which can be used (and
information about the availability of an optional or selective preferential
vote is of that kind) is necessarily to encourage its use if the recipient of
the information is so inclined.  A person in making that information available
to an eligible voter would, in the absence of active discouragement of its
use, find it wellnigh impossible to prove that it was made available without
any intention that those to whom it was made available should make use of it.
To put the matter shortly, to make available useful information is ordinarily
to encourage its use.  This is particularly so in the context of an election.
The effect of s 329A in any practical sense must, in my view, be to
discourage, if not prevent, persons from imparting to eligible voters
knowledge that the electoral system permits optional or selective preferential
voting.  It cannot, therefore, be a law which is reasonably and appropriately
adapted to the achievement of an end which lies within the ambit of the
relevant legislative power.  Indeed, the effect of the provision is such that
it is possible to adopt the words of Mason CJ, Deane and Gaudron JJ in Davis v
The Commonwealth (30):
    "This extraordinary intrusion into freedom of expression is
not reasonably and appropriately adapted to achieve the ends that lie within
the limits of constitutional power."

19.  I have been able to reach my conclusion without reliance upon the
reasoning of the majority with regard to freedom of communication in the
previous cases (31).  With the greatest of respect, that reasoning does not,
as I have indicated, commend itself to me.  But upon that reasoning, the
Constitution guarantees freedom of political discussion.  I must confess that
I am unable to see how political discussion can be confined to the mere
imparting of information and why it should not extend to the furnishing of
information with the intention that it should be used.  Indeed, exhortation or
encouragement of electors to adopt a particular course in an election is of
the very essence of political discussion and it would seem to me that upon the
view adopted by the majority in the earlier cases, s 329A must infringe the
guarantee which they discern.  It is true that the encouragement of voters to
adopt a course which is inconsistent with the casting of a formal vote may not
infringe that guarantee because the casting of a formal, and therefore,
effective, vote is in the interests of representative government, as are the
various other controls which may impede freedom of discussion but which are
required to ensure that an electoral system works properly.  But s 329A goes
beyond matters of that kind. It seeks to prevent the encouragement of voters
to cast their votes in a form which is open to them.  It must inevitably
inhibit freedom of political discussion in a manner which does nothing to aid
the proper conduct of elections in accordance with the Act.

20.  For these reasons, I would answer no to the question whether s 329A of
the Commonwealth Electoral Act 1918 is a valid enactment of the Parliament of
the Commonwealth.
JUDGE3
TOOHEY AND GAUDRON JJ   The following question has been reserved for the
consideration of the Full Court:
    "Is section 329A of the Commonwealth Electoral Act 1918 a
valid enactment of the Parliament of the Commonwealth?"

2.  Section 329A of the Commonwealth Electoral Act 1918 (Cth) ("the Act")
relevantly provides:
    "(1) A person must not, during the relevant period in
relation to a House of Representatives election under this Act, print, publish
(32) 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."
Section 322 defines "relevant period" to mean, "in relation to an election
under (the) Act, ... 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".

3.  Section 240 provides that "(i)n 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".

4.  Although couched in mandatory terms, s 240 does not operate to require a
voter to fill in a ballot-paper in the manner described in that section or,
indeed, at all.  Rather, it is the foundation of a somewhat complicated
legislative scheme directed to the question whether and, if so, how a
ballot-paper will be counted in an election for the House of Representatives.
The preferences expressed in a ballot-paper which complies with s 240 will be
distributed in accordance with s 274 of the Act until one candidate has an
absolute majority of votes or until only two candidates remain (33).

5.  The scheme is partially revealed by s 268(1)(c) which relevantly provides
that, subject to s 270(2) of the Act, a ballot-paper which does not comply
with s 240 is informal unless it satisfies one or other of the provisos to s
268(1)(c) (34). The effect of the provisos is that, if the number 1 is placed
against the name of one candidate and consecutive numbers are placed against
the names of all but one of the other candidates, the elector is deemed to
have given his or her last preference to that candidate and his or her
ballot-paper is counted in the ballot on the basis that it expresses a
preference, from first to last, for each of the candidates whose names appear
on the ballot-paper.

6.  The scheme is completed by s 270(2) which provides:
    "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."
It is provided by s 270(3) that "(i)n considering, for the purposes of
subsection ... (2), whether numbers are in a sequence of consecutive numbers,
any number that is repeated shall be disregarded".  The effect of s 270(2) and
(3) is that, if there are three or more candidates, a ballot-paper will be
counted until it is exhausted (35) so long as the number 1 is placed against
one candidate and there are numbers against all other candidates, or all other
candidates but one.  Thus, for example, if there are six candidates and the
voter places numbers 1, 2, 3, 4 and 4 against the names of five candidates,
the ballot-paper will be exhausted after the third preference but, until then,
it will be counted in the ballot.

7.  The proscription effected by s 329A is not accurately described as a
proscription of conduct intended to encourage electors to vote informally.  A
ballot-paper may be informal for reasons other than non-compliance with s 240:
it may not be authenticated by the initials of the presiding officer or by the
presence of the official mark (36); or it may be marked in such a way that, in
the opinion of the Divisional Returning Officer, the voter can be identified
(37).  And as already noted, ballot-papers which do not comply with s 240
will, nonetheless, be formal and counted in the ballot if they satisfy one or
other of the provisos to s 268(1)(c) or the conditions specified in s 270(2):
fully counted, if they satisfy one or other of the provisos; counted until
exhausted, in the case of ballot-papers satisfying s 270(2) of the Act.

8.  The proscription effected by s 329A is different in purpose and effect
from a proscription on conduct intended to encourage electors to vote
informally. Its effect is to proscribe conduct of the kind which the section
describes and which is intended to encourage voters not to place consecutive
numbers, starting with the number 1, against the names of all candidates on
the ballot-paper.  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.

9.  It should be noted that s 329A is confined to conduct that is intended to
encourage non-compliance with s 240 and is not concerned with conduct that is
intended only to inform.  Thus, it is not directed to conduct intended to
provide information as to the circumstances in which a ballot-paper will be
formal, notwithstanding non-compliance with s 240, or as to the manner in
which it will be counted.  Nor is it directed to conduct intended to inform
voters as to the possible consequences of expressing a preference for each of
the candidates whose names appear on the ballot-paper.

10.  It is asserted by the plaintiff, and not contested by the defendants,
that one of the possible consequences or "paradoxes" of compliance with s 240
of the Act is that, although a last or final preference is popularly regarded
as a vote against the candidate to whom it is given, a candidate may, in some
circumstances, be "elected on final preferences" (38).

11.  Strictly, this case is concerned only with s 329A of the Act. However,
the plaintiff contends that s 240 is invalid to the extent that it requires a
voter to express a preference for a person whom he or she would wish to vote
against. And he contends that, consequently, s 329A is also invalid.  The
argument is that s 240 offends against the requirement in s 24 of the
Constitution that members of the House of Representatives be "directly chosen
by the people of the Commonwealth" (39) because, it is said, a voter is denied
effective choice if he or she is required to express a preference for a
candidate whom he or she wishes to vote against.

12.  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.
However, it is not possible to vote against one candidate only:  if a voter
votes 1, 2 and leaves the other box blank, for example, the ballot-paper will
be deemed to express a preference for all candidates pursuant to the first
proviso to s 268(1)(c) and will be counted accordingly.

13.  The circumstances in which the application of the provisos to s 268(1)(c)
of the Act would have any practical effect on the outcome of an election were
not explored in argument.  However, it would seem that that is possible where
there are two unexcluded candidates and the ballot-papers counted to them are
equal (40).  And on that basis, it may fairly be said that a voter cannot cast
a formal vote and, at the same time, vote against one candidate only.  The
question then is whether this limited ability to vote against a candidate
offends the requirement in s 24 of the Constitution that members of the House
of Representatives be "directly chosen by the people".

14.  The expression "directly chosen by the people of the Commonwealth" in s
24 has its counterpart, in relation to Senate elections, in s 7 which requires
that the Senate "be composed of senators for each State, directly chosen by
the people of the State".  Two matters may be noted with respect to the
expression in ss 7 and 24:  as pointed out in Attorney-General (Cth); Ex rel
McKinlay v The Commonwealth, the phrase is concerned with "the people", not
with "electors" who are referred to as such in ss 8, 30 and 128 of the
Constitution (41); and the word used is "chosen" rather than "elected", a
distinction of some significance which is evident in s 15 following its
substitution in 1977 to deal with casual Senate vacancies (42).

15.  The words "choose", "choosing" and "chosen" are used in various other
constitutional provisions relating to senators and members of the House of
Representatives, including ss 8, 9, 13, 15, 26, 29, 30, 43 and 44.  It would
be wrong to approach those words in ss 7, 24 or any of the other provisions to
which reference has been made on the basis that they are to be equated with
the words "elect", "electing" or "elected" (43).  At the very least, the word
"chosen" is apt to describe accurately the situation where there is only one
candidate and it is, thus, unnecessary to conduct a ballot.  A further
distinction can be discerned in the context of s 43 which provides that "(a)
member of either House of the Parliament shall be incapable of being chosen or
of sitting as a member of the other House."  Such a person may well be capable
of being elected, in the sense of securing the necessary number of votes,
although not capable of being chosen because of his or her disqualification.

16.  When regard is had to the absence of any reference in ss 7 and 24 to
electors, elections or persons being elected, the limited nature of the
franchise which existed at the time of federation (44), the separate
constitutional provisions concerned with the franchise (45) and the numbers of
senators (46) and members of the House of Representatives (47), the
requirement that senators and members of the House of Representatives be
"chosen by the people" must be taken as primarily mandating a democratic
electoral system and as bearing on the features of that system only in the
sense that it prohibits any feature that prevents it being said that the
Senate or the House of Representatives is, or would, in the event of an
election, be composed of persons "chosen by the people".  In this context and
no matter how broadly the words "chosen by the people" are construed, there is
nothing to support the view that members who are elected pursuant to a full
preferential voting system, or the modified preferential voting system
effected by ss 240, 268 and 270 of the Act, are not properly described as
"chosen by the people". The mere fact that a voter's ability to cast a formal
vote and, at the same time, vote against a candidate is limited in the way
earlier described does not have the effect that the House of Representatives
is not properly described as composed of members "chosen by the people".
Accordingly s 240 is valid and it follows that the plaintiff's argument with
respect to s 329A of the Act must fail.

17.  There is, perhaps, more force in an argument that an individual who is
"elected on final preferences" (48) is not properly described as "chosen by
the people".  However, in our view, such a person is as much "chosen by the
people" as a candidate who is unopposed and declared "duly elected" pursuant
to s 179(3) of the Act and who, as already indicated, is properly encompassed
in the expression "chosen by the people". This notwithstanding, it may be that
the same could not be said if the outcome of an election were to depend on
deemed preferences because of the operation of one or other of the provisos to
s 268(1)(c) of the Act.  If in the event of a tied vote, for example, the
candidate for whom fewer voters expressed a final preference were to be
declared elected, it may be that he or she could not accurately be described
as "chosen by the people" (49).  That, however, is a question that is separate
and distinct from any question as to the validity of s 240 of the Act.
Moreover, it is a question that may never arise.

18.  Although the plaintiff did not argue that s 329A of the Act is invalid by
reason that it infringes the implied freedom of political discussion
recognised in Nationwide News Pty Ltd v Wills (50) and in Australian Capital
Television Pty Ltd v The Commonwealth (51), it is, nonetheless, appropriate to
indicate that, in our view, it does not.  Freedom of political discussion is
an indispensable concomitant of representative democracy which is embodied in
the text, particularly ss 7 and 24, and in the structure of the Constitution.
However, as was made clear in Nationwide News and Australian Capital
Television, the freedom is not absolute (52).  The limits of the freedom were
expressed in different ways by those justices who constituted the majority in
those cases (53) but there is nothing in those cases to warrant a conclusion
that the freedom operates to strike down laws which curtail freedom of
communication, where that curtailment is reasonably capable of being viewed as
appropriate and adapted to furthering or enhancing the democratic process.
And the nature and the source of the freedom are such that, in our view, the
freedom does not operate to strike down laws of that kind, although it will
not often be the case that a law which curtails freedom of political
discussion will be capable of being viewed as appropriate and adapted to
furthering or enhancing the democratic system. Perhaps, it could only be said
of laws that regulate the conduct of persons in connection with elections as,
for example, laws to "prevent intimidation and undue influence" (54).

19.  One matter that furthers the democratic process is full, equal and
effective participation in the electoral process.  If a voter's ballot-paper
is informal, as may be the case if it is not completed in accordance with s
240, he or she does not effectively participate in the electoral process.  And
a voter does not participate either fully or equally with those who indicate
an order of preference for all candidates if his or her ballot-paper is filled
in in such a way that it is earlier exhausted.  To the extent that s 329A
operates to prevent conduct that is intended to encourage voters not to fill
in a ballot-paper in accordance with s 240 and, thus, either vote informally
or to vote in such a way that their ballot-papers are exhausted earlier than
those of other voters, it is reasonably capable of being viewed as appropriate
and adapted to furthering the democratic process.

20.  So far as concerns ballot-papers which are deemed by the provisos to s
268(1)(c) to express a preference for all candidates, different considerations
apply.  Although the provisos operate to give effect to a ballot-paper which
might otherwise be informal, the democratic process is enhanced if a voter's
actual intention is capable of ascertainment from the ballot-paper and effect
is given to that intention rather than an intention which he or she is deemed
to have expressed.  In relation to ballot-papers which fall within the
provisos to s 268(1)(c), s 329A operates to proscribe conduct which might
encourage voters to fill in their ballot-papers in a way that does not make
their intentions manifest.  Because it operates in this way, it is reasonably
capable of being viewed as appropriate and adapted to the enhancement of the
democratic process.

21.  The question reserved should be answered "yes".
JUDGE4
McHUGH J   The question reserved for the decision of the Full Court of this
Court in this suit is whether s 329A of the Commonwealth Electoral Act 1918
(Cth) ("the Act") is a "valid enactment of the Parliament of the
Commonwealth". 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 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."
<
Section 322 defines "relevant period" to mean "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".

2.  Section 240 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."

3.  Section 240 is an essential element in the system of preferential voting,
the system that the Act uses to determine which candidate is to be elected to
the House of Representatives (55).  Failure to comply with s 240 does not mean
that a vote is always informal.  In some limited circumstances (56), a
ballot-paper may be admitted to the scrutiny and its preferences distributed,
even though the paper does not fully comply with the directions contained in s
240.  But the system of preferential voting, which the Act sets up, would
break down if there was a widespread failure to comply with its terms. Section
329A is, therefore, a desirable, if not essential, protection of the
preferential system of voting that the Act sets up for House of
Representatives' elections. Its object is to prohibit persons from encouraging
voters not to indicate their order of preference for each candidate.

4.  The enactment of s 329A became necessary once the Parliament relaxed the
circumstances in which a ballot paper, not marked in accordance with s 240,
could be admitted to the scrutiny.  But necessary or not, the plaintiff
contends that s 329A does not prevent a person encouraging voters to leave
blanks against the name of a candidate on a ballot-paper if the voter does not
wish to vote for that candidate.  Nor, says the plaintiff, does the section
prevent a person from encouraging a voter to indicate his order of preference
for the candidates for whom he or she wishes to vote and then giving the next
consecutive number to all the candidates that the voter does not wish to vote
for.  If s 329A does prevent a person from encouraging a voter to mark his or
her ballot-paper in those ways, says the plaintiff, it is beyond the
constitutional power of the Commonwealth to enact such a provision.

The construction of s 240
5.  During argument it emerged that, although the question reserved concerns
the validity of s 329A, the plaintiff's real concern was the construction and
validity of s 240 of the Act. The plaintiff alleges that s 329A is invalid if
s 240 requires a voter to state a preference for a candidate for whom he or
she does not wish to vote because, on that construction, s 240 is invalid.  He
contends that, because s 24 of the Commonwealth of Australia Constitution Act
1900 (UK) declares that the "House of Representatives shall be composed of
members directly chosen by the people of the Commonwealth", a voter must be
able to choose his or her candidate and cannot be forced to record a
preference for a candidate whom he wishes to vote against.  He submits
therefore that, consistently with s 24 of the Constitution, s 240 should be
given a construction that does not require a voter to record a preference vote
for a candidate that the voter opposes.  He contends that "implicit in 240 ...
is that if you do not choose any of the candidates, leave it blank.  Surely it
could not be that you are required to pretend to vote for a candidate who you
do not choose.  How could that be an election?"  The plaintiff argues that, if
a voter wishes to vote for only one candidate, he or she is entitled to fill
in all the other squares with a "2".  If there are six candidates and the
voter only wishes to vote for three, the voter can "write the numbers 1, 2, 3
,4, 4, 4.  Those are consecutive numbers." Somewhat inconsistently, the
plaintiff does not object to a voter having to place a "4" against a candidate
if he or she wishes to vote for only three of four candidates.

6.  The plaintiff relies on the word "all" in s 240(b) to support his
construction of the section.  He argues that "'all' in section 240 requires
you to number all candidates.  Now, I believe that does not require you to use
unrepeated numbers, that you are perfectly entitled to give the candidates you
reject your last choice."  It follows according to the plaintiff's argument
that s 329A does not prevent a person from encouraging voters to give
preferences only to the candidates for whom they wish to vote and to give the
remaining candidates the next consecutive number.

7.  However, I can see nothing in the use of the word "all" or in s 240 as a
whole that supports the construction that the plaintiff seeks to put on the
section.  The plain meaning of the section is that 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.

8.  Notwithstanding the use of the mandatory "shall", the better view is that
s 240 does not impose a legally enforceable duty on the voter.  It seems
extremely unlikely that Parliament intended to impose such a duty on voters.
The absence of any penalty for breach tells against such a conclusion although
it is not conclusive.  As Lord Normand pointed out in Cutler v Wandsworth
Stadium Ltd (57):
    "If there is no penalty and no other special means of
enforcement provided by the statute, it may be presumed that those who have an
interest to enforce one of the statutory duties have an individual right of
action."
If s 240 imposes a legally enforceable duty, perhaps the Electoral
Commissioner is a person who can enforce it.  But the practical difficulties
of enforcing such a duty are so great that, combined with the absence of any
penalty for breach, it seems extremely unlikely that the section was intended
to impose a legal duty on a voter.  The section should be read, therefore, as
giving directions to a voter as to how the voter is to discharge the statutory
duty to vote in a federal election.

9.  Nevertheless, it seems clear that it is the legislative intention that,
when voters discharge their duty to vote, they will comply with the
directions.  The efficacy of the system is dependent upon the directions being
obeyed.  It is true that, if a ballot-paper does not comply with s 240, it is
not necessarily informal.  Other sections of the Act enable a ballot-paper
that does not comply with s 240 to be admitted to the scrutiny in some cases
(58).  But the words of s 240 direct each voter to express consecutive
preferences for all candidates on the ballot-paper; it is a breach of that
direction to mark a ballot-paper otherwise than in accordance with the
section.  The provisions of the Act which save the validity of a ballot-paper
that does not comply with s 240 do not affect the Act's intention that voters
are to follow the directions contained in that section.  The purpose of the
saving provisions is to further the franchise by protecting certain
ballot-papers that do not comply with the directions, but the saving
provisions provide no ground for concluding that the Act is indifferent as to
whether or not voters comply with those directions.  While failure to follow
the directions contained in s 240 is not a breach of legal duty, the
directions are obviously an essential part of the system of preferential
voting established by Pt XVIII of the Act:  if they are disobeyed, the
preferential system of voting set up by Pt XVIII is undermined.

10.  I cannot accept the plaintiff's argument that the voter would not be
marking "his or her vote on the ballot-paper" within the meaning of s 240 if
the voter indicated a preference for a candidate for whom the voter did not
wish to vote.  The object of s 240 is to require the voter to indicate an
order of preference for each candidate and the section plainly regards such an
indication of preference as a vote.  Whether or not the voter wishes to give a
candidate a preference or a vote is irrelevant.

11.  The plaintiff's argument concerning the construction of s 240 must be
rejected.

The constitutional validity of s 329A
12.  The next question is whether, consistently with s 24 of the Constitution,
the Parliament can enact s 329A for the purpose of preventing a person from
encouraging voters from filling in their ballot-papers otherwise than in
accordance with the above construction of s 240.  The plaintiff made it clear
that he did not oppose compulsory voting in the sense of compelling a voter to
attend a polling booth and place a ballot-paper in the ballot box.  His
complaint is that s 24 of the Constitution prevents the Parliament from
requiring an elector to record a preference for a candidate against whom the
voter wished to vote and that s 240 is therefore invalid if it requires a
voter to record a preference for a candidate against whom he or she wished to
vote.

13.  Even if, contrary to my view, s 240 does not always (59) require a voter
to express a preference for a candidate against whom he or she wishes to vote,
it is clear that in some cases it does so.  Thus, it plainly requires a voter
to give a first preference vote to a candidate even if he or she does not wish
to vote for any candidate.  Further, if there are only two candidates and a
voter wishes to place a "1" against one candidate and leave the other square
blank, s 240 will deem the voter to have indicated an order of preference for
each candidate even though that is not the voter's intention or preference
(60).  If the plaintiff's argument on the meaning of s 24 of the Constitution
is correct, s 240 is invalid unless it can be read down.

14.  If s 240 is valid, however, s 329A is valid.  The Parliament has power
under ss 51(xxxvi) and 31 of the Constitution to enact laws "relating to
elections" for the House of Representatives and that power extends to
preventing persons from interfering with or undermining the electoral system
that Parliament has chosen for such an election (61).  If a ballot-paper is
not completed in accordance with the system ordained by the Parliament, the
effectiveness of an election under that system is undermined.  The system is
as effectively undermined by filling in a ballot-paper in a way that does not
indicate the voter's complete order of preferences as it is by a vote that is
wholly informal.  Because the object of s 329A is to prevent the preference
system of voting from being undermined, it is a law with respect to elections
for the purpose of s 51(xxxvi) and s 31 of the Constitution and within the
Parliament's power to enact.

15.  It is not to the point in considering the validity of s 329A that breach
of s 240 is not an illegal act, that in some instances a ballot-paper that
does not comply with that section may be admitted to the scrutiny, or that in
certain instances the operation of the Act will result in an order of
preference for every candidate being indicated even if a square is left blank.
What is to the point is that encouraging persons to fill in a ballot-paper
otherwise than in accordance with s 240 undermines the system of voting which
Pt XVIII of the Act sets up.  That system requires the voter to express his or
her complete order of preferences in respect of the candidates. That is to
say, the system requires the voter to place the number "1" in the square
opposite his or her first choice, the number "2" in the square opposite his or
her second choice and so on until every square is consecutively numbered.  If
a person is encouraged to place a "1" against one candidate and a "2" against
all other candidates, the voter does not indicate the complete order of
preference required by s 240, and the policy of the Act is undermined.  If the
Parliament can validly enact a system of voting under which voters are to
indicate their complete order of preferences for candidates by marking the
ballot in a particular way to the exclusion of other ways, it can prohibit
people from encouraging voters to disregard the system.

16.  I should note that the plaintiff, correctly in my opinion, does not
contend that s 329A breaches any right of freedom of discussion or
communication necessarily implied by s 24 of the Constitution or, as other
members of the Court have held (62), inherent in the principle of
representative democracy implied by the Constitution.  Section 329A penalises
conduct done "with the intention of encouraging persons voting at the election
to fill in a ballot paper otherwise in accordance with section 240."  If the
Parliament can validly enact s 240, it is no breach of the implied freedom to
punish those who seek to undermine the system of compulsory voting (63) laid
down by the Act.  Section 329A prevents political discussion or advocacy only
when it is done with the intention of encouraging voters to disregard lawful
directions that are fundamental to a system of compulsory preference voting.
Those directions require the complete order of preferences of the voter to be
stated in a particular way and no other way.  There is a world of difference
between prohibiting advocacy that is put forward with the intention of
encouraging breaches of statutory directions and prohibiting advocacy that
criticises or calls for the repeal of such directions.  Nothing in s 329A
prevents the plaintiff or anybody else from arguing that the system set up by
Pt XVIII is unfair, undemocratic, an attack on conscience, or riddled with
inconsistencies and absurdities.  It is not inconsistent with the implied
freedom for Parliament to prohibit a person from encouraging voters to
disregard a system of voting validly set up under the Constitution.  If the
Parliament could not compel persons to vote, the matter might be different.
But the plaintiff refused to challenge the compulsory voting system. Moreover,
this Court has held that compulsory voting in federal elections is within the
power of the Parliament (64).

17.  It follows that, unless s 240 is invalid, s 329A is valid. Because the
validity of s 240 was not a question that was reserved for the Court, strict
adherence to the question reserved procedure would result in the conclusion
that s 329A is valid.  But I do not think that the plaintiff's case should be
so technically confined.

18.  In my opinion, s 240 does not breach s 24 of the Constitution by
requiring a voter to record a preference for a candidate that he wishes to
vote against. The plaintiff seeks to give a narrow meaning to the words
"chosen by the people" in s 24 of the Constitution, a meaning which in their
context they do not bear. Members of Parliament may be "chosen by the people"
even though "the people" dislike voting for them.  Section 24 of the
Constitution is concerned with choices from the list of candidates who offer
themselves for election, not the wishes of individual electors.  That was made
clear in Judd v McKeon (65) where the Court held that legislation providing
for compulsory voting in federal elections was valid.  The Court rejected (66)
an argument that "the choosing of a candidate implied a desire on the part of
the elector that that candidate should be elected, and that consequently the
power of Parliament was limited to prescribing the method by which electors
desiring that a candidate should be elected should signify that desire". Knox
CJ, Gavan Duffy and Starke JJ, in the course of discussing the meaning of the
phrase "choosing the senators" in s 9 of the Constitution, said (67):
    "In common parlance 'to choose' means no more than to make a
selection between different things or alternatives submitted, to take by
preference out of all that are available."
Thus, a member is "chosen by the people" even if he or she is elected
unopposed or if the majority of voters under a preferential system of voting
have refused to give their first preference vote to the person elected.
Similarly, members are "chosen by the people" when they are elected by a
system that requires each elector in an electorate to indicate his or her
order of preference for each candidate in the election.

19.  The purpose of the words "chosen by the people" in s 24 of the
Constitution is to ensure that the members of the House of Representatives are
elected by the direct vote of qualified electors in contrast to being
appointed to office or being elected by electoral colleges or similar bodies.
Those words were not intended to confer a personal right on each elector to
vote for the candidate of his or her choice (68).  Indeed, s 24 of the
Constitution is not concerned with the method of electing members, with the
franchise or with any of the other matters that are relevant to the holding of
federal elections except the computation of each State's representation in the
House of Representatives. Section 24 leaves those matters to other sections of
the Constitution, ss 29, 30 and 31 in particular.

20.  Section 24 does not say, for example, how or for how long the members of
the House of Representatives are to be chosen.  To answer those questions,
recourse must be had to ss 25-34, 41-42 and 47 of the Constitution which make
it clear that members are to be chosen by the holding of periodic elections
(69).

21.  Those sections also show that the words "the people" in s 24 of the
Constitution are not intended to be read literally. Because the franchise was
limited at the time of federation, it is plain that s 24 was enacted on the
assumption that a member of the House of Representatives could be "chosen by
the people" even though women and many adult males were not eligible to vote
in the election which returned that member.  Even today, the term "the people"
in s 24 does not mean every man, woman and child in the nation (70).
Ordinarily, "the people" will be identical with those electors who are
entitled to vote in an election in accordance with the laws of the Parliament
or, in the absence of such laws, with the laws of the States.  Yet to read the
words "the people" as always being equivalent to the eligible electors would
be to miss the high purpose of s 24. That purpose is to ensure representative
government by insisting that the Parliament be truly chosen in a democratic
election by that vague but emotionally powerful abstraction known as "the
people", a term whose content will change from time to time.  In the light of
the extension of the franchise during this century, for example, it would not
now be possible to find that the members of the House of Representatives were
"chosen by the people" if women were excluded from voting or if electors had
to have property qualifications before they could vote.  As McTiernan and
Jacobs JJ said in Attorney-General (Cth); Ex rel McKinlay v The Commonwealth
(71):
    "The words 'chosen by the people of the Commonwealth' fall
to be applied to different circumstances at different times and at any
particular time the facts and circumstances may show that some or all members
are not, or would not in the event of an election, be chosen by the people
within the meaning of these words in s 24.  At some point choice by electors
could cease to be able to be described as a choice by the people of the
Commonwealth.  It is a question of degree.  It cannot be determined in the
abstract.  It depends in part upon the common understanding of the time on
those who must be eligible to vote before a member can be described as chosen
by the people of the Commonwealth."

22.  The words "chosen by the people" are therefore words of inexact
application, dependent upon matters of fact and degree and always involving a
value judgment.  They describe the result of a process that begins with the
calling of an election for the House of Representatives and ends with the
declaration of the poll (72).  They do not confer individual rights on
electors. The "rights" conferred by the section are given to "the people of
the Commonwealth" (73) - not individuals, although by necessary implication a
member of the public may bring an action to declare void legislation that is
contrary to the terms of s 24 or what is necessarily implied by it.  Whether
or not a member has been "chosen by the people" depends on a judgment, based
on the common understanding of the time, as to whether the people as a class
have elected the member.  It does not depend on the concrete wishes or desires
of individual electors.

23.  Because of the terms of ss 29 and 31 of the Constitution, the Parliament
has a wide choice of electoral systems from which to choose the members of the
House of Representatives.  Not every system that enables "the people" to elect
their members results in those members being "chosen by the people" within the
meaning of s 24.  Nevertheless, having regard to the wide powers conferred by
ss 29 and 31, it is impossible to suppose that legislation in the form set out
in s 240 of the Act was beyond the power of the States for the first federal
election or is now beyond the power of the federal Parliament to enact.

24.  Compulsory preferential voting does not appear to have been introduced
into Australia until 1911 when it was introduced in Western Australia.  But
optional preferential voting was used in Queensland after 1892 and
proportional representation was introduced in Tasmania for the Hobart and
Launceston metropolitan electorates in 1896.  Since federation, compulsory
preferential voting has become a widely used method for electing members of
parliaments (74). The directions in s 240 of the Act are not so far removed
from what was, and what is presently regarded as, involved in members being
"chosen by the people" that that section is in breach of s 24 of the
Constitution.  Nor are those directions in conflict with the principles of
representative government in so far as s 24 of the Constitution gives effect
to that institution.  Section 240 is a valid enactment.  It follows that s
329A is also a valid enactment.

25.  The question reserved should be answered, Yes.
JUDGE5
GUMMOW J   By order of a Justice of this Court, there is reserved for the
consideration of the Full Court the following question:
    "Is Section 329A of the Commonwealth Electoral Act 1918 a
valid enactment of the Parliament of the Commonwealth?"

2.  Section 27 of the Electoral and Referendum Amendment Act 1992 (Cth)
inserted s 329A in the Commonwealth Electoral Act 1918 (Cth) ("the Act").
Section 27 commenced on the day of the Royal Assent, 24 December 1992.  Since
that date one general election of members of the House of Representatives has
been concluded.

3.  Section 329A is in the following terms:
    "(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."

The term "House of Representatives election" means an election of a member 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."

4.  Section 240 deals with the marking of votes in a House of Representatives
election.  It states:
    "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."

5.  The consequences for the ballot of a failure to mark the vote on the
ballot-paper in the manner specified in s 240 appear from ss 268 and 270.

6.  A ballot-paper shall not be informal for any reason other than those
specified in s 268, but shall be given effect to according to the voter's
intention so far as that intention is clear (s 268(3)).

7.  So far as presently material, s 268(1)(c) renders a ballot-paper in a
House of Representatives election informal if it has no vote indicated on it,
or it does not indicate the voter's first preference for one candidate and an
order of preference for all the remaining candidates.  This is subject to two
provisos set out in s 268(1):
    "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."

8.  Paragraph (c) of s 268(1) is expressed as being subject to sub-section (2)
of s 270.  This sub-section applies where a ballot-paper in a House of
Representatives election in which there are three or more candidates has the
number 1 in the square opposite the name of one candidate, 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, but for the
sub-section, the ballot-paper would be informal by virtue of par (c) of s
268(1).

9.  Where those circumstances apply, s 270(2) provides that the ballot-paper
shall not be informal by virtue of par (c) of s 268(1).  Rather, the number 1
shall be taken to express the voter's first preference and, where numbers in
squares opposite to the names of candidates are in the 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 other numbers, in that sequence.  The voter shall not be taken to have
expressed any other preference (par (g) of s 270(2)).  In considering for the
purposes of s 270(2) whether numbers are in a sequence of consecutive numbers,
any number that is repeated shall be disregarded (s 270(3)).

10.  Section 245(1) imposes upon every elector what it states to be a duty to
vote at each election.  Section 245(17) provides that, in s 245, the term
"elector" does not include three specified categories of elector (75).  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)).  Section 245(14) deals with one class of case where "a valid
and sufficient reason" exists.  It states:
    "Without limiting the circumstances that may constitute a
valid and sufficient reason for not voting, the fact that an elector believes
it to be part of his or her religious duty to abstain from voting constitutes
a valid and sufficient reason for the failure of the elector to vote."
That an elector did not approve of any candidate and all candidates met with
the disapproval of the elector is not a "valid and sufficient reason" for
failure to vote (76). Proceedings for an offence against s 245 may be
instituted only by the Electoral Commissioner or an officer authorised in
writing for that purpose by the Electoral Commissioner (s 245(16)).

11.  Section 274 provides for the scrutiny and counting of votes in a House of
Representatives election.  It deals (s 274(7)) with the ascertainment of the
total number of first preference votes, the distribution of preferences,
exclusion of candidates by that process and the ascertainment of a candidate
with an absolute majority of votes.  In this process, a ballot-paper shall be
set aside as "exhausted" where on a count it is found that the ballot-paper
expresses no preference for any unexcluded candidate (s 274(8)).

12.  Sections 338 and 339 create various offences relating to ballot-papers.
Section 338 states:
    "Except where expressly authorized by this Act, a person
(other than the elector to whom the ballot-paper has been lawfully issued)
shall not mark a vote or make any mark or writing on the ballot-paper of any
elector.
    Penalty: $1,000 or imprisonment for 6 months, or both."

So far as is presently relevant, s 339 provides:
    "(1) A person shall not:

    ...

    (c) fraudulently destroy or deface any nomination paper or
ballot-paper;
    (d) fraudulently put any ballot-paper or other paper into
the ballot-box;
    (e) fraudulently take any ballot-paper out of any polling
booth or counting centre;
    (f) forge any nomination paper or ballot-paper or utter any
nomination paper or ballot-paper knowing it to be forged;
    ...

    Penalty:  Imprisonment for 6 months."

13.  The question referred to the Full Court concerns the validity only of s
329A.  There is no question referred to the Full Court which concerns the
validity of s 240 or any of the other provisions of the Act which I have set
out or described. Nevertheless, these provisions assist in construing s 329A,
and, as regards s 240, some attention to its validity is required for
assessment of the plaintiff's submission that an elector has a constitutional
entitlement to complete a ballot paper in a House of Representatives election
otherwise than in accordance with s 240.  This entitlement is said to be
conferred by the operation of the phrase "directly chosen by the people of the
Commonwealth" in s 24 of the Constitution.

14.  The first task is the construction of s 329A.  It will be appropriate
then to consider the grounds upon which the plaintiff attacks the validity of
s 329A.

15.  Section 329A requires proof by the prosecution of various elements of the
offence.  The first is that during the relevant period, as defined, and in
relation to a House of Representatives election under the Act, the accused
printed, published or distributed (or caused, permitted or authorised to be
printed, published or distributed) any matter or thing.  The second is that
the accused did so with the necessary intention. The intention is that of
encouraging persons voting at the election "to fill in a ballot paper" in a
particular manner.

16.  That manner is to fill in the ballot-paper (to pick up the terms of s
240) otherwise than by writing the number 1 in the square opposite to the name
of the candidate selected as the first preference, and otherwise than by
writing the numbers 2, 3 and 4 (and so on as required) in the squares opposite
the names of the remaining candidates so as to indicate the order of
preference for them.

17.  Section 329A uses the expression "to fill in a ballot paper" whilst s 240
speaks of a person "mark(ing)" his or her vote on the ballot-paper.  However,
the final phrase in s 329A(1), "otherwise than in accordance with section
240", indicates s 329A treats as filling in a ballot-paper the marking of the
ballot-paper by writing the numbers 1, 2, 3 and so on in the squares opposite
the names of the candidates so as to indicate the order of preference.

18.  The prosecution must prove an intention to encourage voters to mark their
ballot-papers otherwise, that is to say differently or in some other manner
whereby the ballot-paper does not indicate the voter's first preference for
one candidate and an order of preference for the remaining candidates.

19.  A ballot-paper which is not marked with this indication and which
therefore does not comply with s 240 is to be treated as informal.  That
follows from par (c) of s 268(1).  The treatment of the vote as informal is
subject to the provisos contained in s 268(1), which I have set out earlier in
these reasons. It is also subject to the provisions of s 270(2).  These
qualifications operate in aid of the principles that the ballot, being a means
of protecting the franchise, should not be made an instrument to defeat it,
and that, in particular, doubtful questions of form should be resolved in
favour of the franchise where there is no doubt as to the real intention of
the voter (77).

20.  However, s 329A brings in the criminal law to assist achievement of the
primary objective of the legislation as evinced in s 240 and in par (c) of s
268(1).  This is that ballot-papers shall be marked in the particular fashion
identified in s 240 so as to indicate the first preference of a voter for one
candidate and an order of preference for all the remaining candidates.

21.  Section 329A presupposes that the persons who wrongly are encouraged to
fill in their ballot-paper otherwise than in accordance with s 240 will be
"persons voting at the election". That is to say, s 329A operates on the
footing that the persons in question will be discharging the duty imposed by s
245 to vote at the election unless they have a valid and sufficient reason for
failing to do so.  Put another way, s 329A is not concerned to proscribe the
printing, publication or distribution of material with the intention of
encouraging persons not to vote at all at a House of Representatives election
under the Act.

22.  Nor, as was conceded by the Solicitor-General for the Commonwealth in
argument, does s 329A proscribe conduct with the intention of encouraging
persons who do fill in a ballot-paper in accordance with s 240 also to write
on the ballot-paper additional words or other graphic representations.

23.  Other provisions of the Act create offences with respect to conduct which
relates to the ballot.  Section 329(1) makes it an offence to publish
(including publication by radio or television), print or distribute any matter
or thing "that is likely to mislead or deceive an elector in relation to the
casting of a vote".  The offence extends to causing, permitting or authorising
those activities.  I have referred to ss 338 and 339 which create various
offences relating to ballot-papers.

24.  As I understand the submissions for the plaintiff, it is accepted (and
rightly) that (subject to such limitations as properly apply by reason of any
express provision of the Constitution or are properly implied from the system
of representative government which is established and maintained by the
Constitution) the Parliament has power under ss 31 and 51(xxxvi) of the
Constitution to make laws which relate to elections for the House of
Representatives.

25.  Section 31 of the Constitution states:
    "Until the Parliament otherwise provides, but subject to
this Constitution, the laws in force in each State for the time being relating
to elections for the more numerous House of the Parliament of the State shall,
as nearly as practicable, apply to elections in the State of members of the
House of Representatives."
Paragraph (xxxvi) of s 51 is a conferral of legislative power with respect
to:
    "Matters in respect of which this Constitution makes
provision until the Parliament otherwise provides".
The head of federal legislative power thus is the making of laws relating to
elections for members of the House of Representatives.  Section 240 plainly is
such a law and it 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.

26.  The legislative power of the Commonwealth I have identified above
includes the making of laws which regulate the conduct of persons in relation
to such elections (78).  Section 329A is a law which prohibits conduct, of the
nature and quality identified in it by reference to s 240, which has the
tendency to undermine the efficacy of the system in accordance with which the
vote of an elector is to be recorded and counted.  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.

27.  The plaintiff submits, in effect, that s 24 of the Constitution requires
that members of the House of Representatives be elected in accordance with the
desires or intentions of the electorate.  In McGinty v Western Australia (79)
I expressed the view that this phrase in s 24 was included in the Constitution
to perform a function which is quite different.  In my view, s 24 does not
confer upon each elector a personal right to vote for the candidate of that
elector's choice, and, therefore, a right (or immunity) not to state a
preference for a candidate whom the elector does not wish to be elected.
Section 24 is not concerned with the particular form to be taken by the
franchise in a system of direct election of members of the House of
Representatives.  It follows that there is no constitutional limitation upon
giving to s 240 the operation it has upon its terms.  Therefore, there is no
limitation which flows from s 240 into s 329A so as to impugn the validity of
s 329A.

28.  Once the generality of the power to enact laws relating to elections is
appreciated and the validity of s 240 is accepted, s 329A stands as a
provision which protects the method of electing members of the House of
Representatives.

29.  In my view, there is no substance in any submission that, even if s 329A
otherwise be within legislative power, nevertheless it is invalid for
infringement of that restraint upon power which is identified as the implied
freedom of political communication.

30.  As the constitutional implication recently was formulated in Theophanous
v Herald and Weekly Times Ltd (80), it is derived from, and operates in aid
of, the system of representative government established and maintained by the
Constitution.  At the centre of the system of representative government is the
electoral process.  This has long been recognised.  In 1703 a Holt CJ said
(81):
    "It is not to be doubted, but that the commons of England
have a great and considerable right in the government, and a share in the
legislat(ure), without whom no law passes; but because of their vast numbers
this right is not exerciseable by them in their proper persons, and therefore
by the constitution of England, it has been directed, that it should be
exercised by representatives, chosen by and out of themselves, who have the
whole right of all the commons of England vested in them ...
A right that a man has to give his vote at the election of a person to
represent him in Parliament, there to concur to the making of laws, which are
to bind his liberty and property, is a most transcendant thing, and of an high
nature".

31.  In Nationwide News Pty Ltd v Wills, Deane and Toohey JJ said (82):
    "The ability to cast a fully informed vote in an election of
members of the Parliament depends upon the ability to acquire information
about the background, qualifications and policies of the candidates for
election and about the countless number of other circumstances and
considerations, both factual and theoretical, which are relevant to a
consideration of what is in the interests of the nation as a whole or of
particular localities, communities or individuals within it."

32.  Section 329A does not impose any restriction upon political discussion
generally nor, more particularly, upon discussion as to the suitability or
disadvantages in the voting system. Rather, it is directed at the particular
processes or mechanism by which the franchise is exercised and the vote is
cast.

33.  It is one thing to advocate the abrogation or modification of the
particular system by which the legislature provides for the exercise of the
franchise.  It is another intentionally to seek to undermine the effective
franchise by encouraging a course of action which may lead to the casting by
electors of informal votes in an election for the House of Representatives,
thereby denying the effective exercise by those electors of their right to
participate in the activity whereby representative government is constituted
and renewed.

34.  The constitutional implication of freedom of political communication has
been formulated in the authorities as operating in aid of representative
government.  It does not facilitate or protect that which is intended to
weaken or deplete an essential component of the system of representative
government. It cannot be inimical to representative government to forbid
intentional conduct comprising advocacy of the casting of a vote in such a way
as may be an ineffective exercise of the franchise.  I use the term "may be"
to allow for the savings provisions which give effect to the franchise in some
cases despite failure by the elector to mark the vote of that person on the
ballot-paper as stated in s 240.  The primary objective of the system
established by the legislation involves observance by electors of s 240.

35.  Section 329A is a valid law of the Commonwealth.  The question reserved
should be answered "Yes".

36.  The plaintiff should pay the defendants' costs of the question reserved.
1 Inserted by s 27 of the Electoral and Referendum Amendment Act 1992 (Cth).
2 Defined in s 322.
3 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Australian Capital
Television Pty Ltd v The Commonwealth (1992) 177 CLR 106; Theophanous v Herald
and Weekly Times Ltd (1994) 182 CLR 104; Stephens v West Australian Newspapers
Ltd (1994) 182 CLR 211.
4 (1926) 38 CLR 380.
5 (1926) 38 CLR 380 at 385.
6 (1926) 38 CLR 380 at 383.
7 (1926) 38 CLR 380 at 386.
8 (1971) 126 CLR 271.
9 (1971) 126 CLR 271 at 272.
10 (1971) 126 CLR 271 at 273.
11 (1912) 15 CLR 355 at 363.
12 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 51, 76-77, 94-95;
Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at
142-143, 150-151, 157-160, 169, 217-218.
13 (1992) 177 CLR 106 at 150-151, 157-160.
14 (1994) 182 CLR 104 at 151-152.
15 (1994) 182 CLR 272 at 324-325, 329.
16 (1994) 182 CLR 272 at 329.
17 Section 268 has always existed in some form in the Act, although previously
it was more restricted.  The section was originally numbered s 133.  It was
renumbered s 268 by the Commonwealth Electoral Legislation Amendment Act 1984
(Cth).
18 Section 270, which was originally numbered s 133B, was inserted by s 103 of
the Commonwealth Electoral Legislation Amendment Act 1983 (Cth).
19 Joint Standing Committe on Electoral Matters, 1990 Federal Election Report,
December 1990 at 30.
20 See Sched 1, Form F.
21 Electoral and Referendum Amendment Act 1992 (Cth), s 27.
22 McGinty v The State of Western Australia, unreported, 20 February 1996.
23 Judd v McKeon (1926) 38 CLR 380 at 383, 385-386.
24 (1992) 177 CLR 106 at 187.
25 Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104 at 140.  See
also Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104 at 120-121;
Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at
138, 142, 169, 214, 227 and 233; Nationwide News Pty Ltd v Wills (1992) 177
CLR 1 at 50, 72-73, 76-77.
26 See McGinty v The State of Western Australia, unreported, 20 February
1996.
27 See Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR
106 at 187; Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104 at
189-190.
28 (1994) 182 CLR 272 at 350-357.
29 See, for example, Commonwealth Electoral Act 1918 (Cth), ss 325, 325A, 326,
329, 330 and 340.
30 (1988) 166 CLR 79 at 100.
31 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Australian Capital
Television Pty Ltd v The Commonwealth (1992) 177 CLR 106; Theophanous v Herald
and Weekly Times Ltd (1994) 182 CLR 104.
32 Section 329A(2) of the Act defines "publish" to include "publish by radio
or television".
33 Pursuant to s 274(7)(d), the Divisional Returning Officer is to proceed
with the scrutiny of ballot-papers as follows:
    "(i) the candidate who has received the fewest first
preference votes shall be excluded, and each ballot-paper counted to the
candidate shall be counted to the candidate next in the order of the voter's
preference;
(ii) the process of excluding the candidate who has the fewest votes, and
counting each of his or her ballot-papers to the unexcluded candidate next in
the order of the voter's preference, shall be repeated until only 2 candidates
remain in the count; and
(iii) if, following the ascertainment of the first preference votes given for
each candidate or the exclusion of candidates under this paragraph, a
candidate has an absolute majority of votes, that candidate shall be
elected".
  Section 274(9) provides that "(i)f, on any count, 2 or more candidates have
an equal number of votes and one of them has to be excluded, the Divisional
Returning Officer shall decide which of them shall be excluded."
34 The provisos to s 268(1)(c) are:
  "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".
35 By s 274(8), a ballot-paper is to be "set aside as exhausted where on a
count it is found that the ballot-paper expresses no preference for any
unexcluded candidate".
36 See s 268(1)(a).  Note that, by s 268(2), a ballot-paper shall not be
informal by virtue of s 268(1)(a) if the relevant Divisional Returning Officer
is satisfied that it is an authentic ballot-paper on which a voter has marked
a vote.
37 See s 268(1)(d).  Note, however, that the proviso to that paragraph makes
formal a ballot-paper so marked by an officer of the Electoral Commission,
notwithstanding that marking the ballot-paper in that way contravenes s 271.
38 This "paradox" occurs because the provisions of the Act governing the
counting of votes for both Senate elections (s 273) and House of
Representatives elections (s 274) allow that candidates can be "excluded" in
certain circumstances, and each ballot-paper counted to them counted to the
candidate next in order of the voter's preference.  A candidate is excluded
when he or she has the fewest votes at a given stage of the distribution of
preferences:  see s 273(13) and (13A), and s 274(7)(d).  In some
circumstances, the notional addition of ballot-papers to those ballot-papers
already counted would result in the candidate ranked last on all of those
additional ballot-papers becoming a successful candidate, even though he or
she would have been unsuccessful but for the inclusion of the additional
ballot-papers.  This occurs when the additional ballot-papers have the effect
of changing the sequence in which candidates are excluded and, hence, which
ballot-papers are counted towards which unexcluded candidates.  See Fishburn
and Brams, "Paradoxes of Preferential Voting", (1983) 56 Mathematics Magazine
207, where this occurrence is termed a "no-show paradox".
39 Section 24 provides:
  "The House of Representatives shall be composed of members directly chosen
by the people of the Commonwealth, and the number of such members shall be, as
nearly as practicable, twice the number of the senators.
  The number of members chosen in the several States shall be in proportion to
the respective numbers of their people, and shall, until the Parliament
otherwise provides, be determined, whenever necessary, in the following
manner:-
  (i) A quota shall be ascertained by dividing the number of the people of the
Commonwealth, as shown by the latest statistics of the Commonwealth, by twice
the number of the senators:
  (ii) The number of members to be chosen in each State shall be determined by
dividing the number of the people of the State, as shown by the latest
statistics of the Commonwealth, by the quota; and if on such division there is
a remainder greater than one-half of the quota, one more member shall be
chosen in the State.
  But notwithstanding anything in this section, five members at least shall be
chosen in each Original State."
40 Pursuant to s 274(7)(d)(ii) and (iii), the counting of ballot-papers
continues until a candidate has an absolute majority or until only two
candidates remain unexcluded.  Hence, final preferences are never actually
counted.  If the unexcluded candidates have the same number of votes counted
to them, the Divisional Returning Officer decides which of the candidates to
exclude: s 274(9).  The provisos to s 268(1)(c) render it futile to examine
final preferences in the event of a two-way tie, because the final preference
of each ballot-paper counted to one of the remaining candidates would be (or
would be deemed to be) for the other candidate, and vice versa.  However, were
it not for the deeming provisos, an examination of final preferences might
reveal that more voters actually expressed a final preference for one
candidate than for the other.  The provisos to s 268(1)(c) and the mechanism
for counting ballot-papers set out in s 274 combine to preclude this approach
to resolving a tie.
41 (1975) 135 CLR 1 at 44 per Gibbs J; see also at 35-36 per McTiernan and
Jacobs JJ.
42 Section 15 was substituted by the Constitution Alteration (Senate Casual
Vacancies) 1977.
43 cf Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104 at 189 per
Dawson J where his Honour states that "other sections make it clear that
senators and members of the House of Representatives shall be chosen by
election".
44 See Attorney-General (Cth); Ex rel McKinlay v The Commonwealth (1975) 135
CLR 1 at 58 per Stephen J.
45 Sections 8, 30 and 41 of the Constitution.
46 Sections 7, 24 and 128 of the Constitution.
47 Sections 24, 26, 27 and 128 of the Constitution.
48 See fn 38.
49 See fn 40.
50 (1992) 177 CLR 1.
51 (1992) 177 CLR 106.
52 (1992) 177 CLR 1 at 50 per Brennan J, 76-77 per Deane and Toohey JJ, 94-95
per Gaudron J; (1992) 177 CLR 106 at 142-143 per Mason CJ, 150-151 per Brennan
J, 169 per Deane and Toohey JJ, 217 per Gaudron J.
53 (1992) 177 CLR 1 at 50-51 per Brennan J, 76-77 per Deane and Toohey JJ,
94-95 per Gaudron J; (1992) 177 CLR 106 at 142-144 per Mason CJ, 169 per Deane
and Toohey JJ, 217-218 per Gaudron J.  See also Theophanous v Herald and
Weekly Times Ltd (1994) 182 CLR 104 at 150-152 per Brennan J, 178-179 per
Deane J; Cunliffe v The Commonwealth (1994) 182 CLR 272 at 300-301 per Mason
CJ, 323-326 per Brennan J, 336-338 per Deane J, 387-388 per Gaudron J.
54 See Australian Capital Television (1992) 177 CLR 106 at 142-143 per Mason
CJ.
55 See Pt XVIII of the Act.
56 See, for example, ss 268(1)(c) and 270(2).
57 (1949) AC 398 at 413.
58 ss 268(1)(c), 270(2) and 274.
59 In their judgment, Toohey and Gaudron JJ hold that it is not correct to say
that s 240 obliges a voter to express a preference for a candidate whom he or
she wishes to vote against.  Their Honours point out, for example, that, if
there are three or more candidates, a vote will be counted until it is
exhausted provided that the number 1 has been placed against one candidate and
there are numbers against all other candidates or all other candidates but
one. Nevertheless, I think that the better view is that ss 268(1)(c) and
270(2) of the Act, while saving the validity of ballot-papers that do not
comply with s 240, do not mean that s 240 does not require the voter to vote
in accordance with that section.  The words "a person shall mark his or her
vote on the ballot-paper by" seem to me to require the voter to follow the
directions in the section.
60 ss 268(1)(c) and 270(2).
61 Smith v Oldham (1912) 15 CLR 355 at 359-360, 362-363; Australian Capital
Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 157, 220, 225-226,
234.
62 Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR
106; Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104; Stephens v
West Australian Newspapers Ltd (1994) 182 CLR 211.
63 s 245.
64 Judd v McKeon (1926) 38 CLR 380.
65 (1926) 38 CLR 380 at 383, 385.  See also Faderson v Bridger (1971) 126 CLR
271 at 272-273.
66 Judd v McKeon (1926) 38 CLR 380 at 383.
67 Judd v McKeon (1926) 38 CLR 380 at 383.
68 cf s 41 of the Constitution which does confer a personal right to vote on
certain electors.
69 Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104 at 189 per
Dawson J.
70 cf Attorney-General (Cth); Ex rel McKinlay v The Commonwealth (1975) 135
CLR 1 at 36.
71 (1975) 135 CLR 1 at 36.
72 Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106
at 231-232; cf Sykes v Cleary (1992) 176 CLR 77 at 100, 108, 130, 132.
73 Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106
at 227, 235.  Nothing in my judgment in Australian Capital Television at 227
or in Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104 at 206
should be read as supporting the view that either ss 7 or 24 of the
Constitution confers individual rights on electors enforceable against the
world.  Rather the term "rights" in those judgments should be read in the
sense of "the privileges and immunities which are inherent in, or flow from,
constitutional restrictions upon legislative, executive or judicial power":
per Deane J in Theophanous at 168.
74 Crisp, Australian National Government, 5th ed (1983) at 137.
75 These are Antarctic electors (for whom special provision is made in Pt
XVII), those who are entitled under ss 94 and 95 to be treated as eligible
overseas electors and those entitled under s 96 to be treated as itinerant
electors.
76 Faderson v Bridger (1971) 126 CLR 271; Lubcke v Little (1970) VR 807;
Douglass v Ninnes (1976) 14 SASR 377; cf O'Brien v Warden (1981) 37 ACTR 13.
77 Kean v Kerby (1920) 27 CLR 449 at 459, 465 per Isaacs J.
78 Smith v Oldham (1912) 15 CLR 355 at 358-359, 360-361, 362-365; McKenzie v
The Commonwealth of Australia (1984) 59 ALJR 190 at 191; 57 ALR 747 at 749.
79 Unreported, High Court of Australia, 20 February 1996 at 137-139.
80 (1994) 182 CLR 104 at 120-121, 146-147, 163, 190.  See also Nationwide News
Pty Ltd v Wills (1992) 177 CLR 1 at 47-48, 72-73; Australian Capital
Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 140, 149, 186-187;
Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 235; Cunliffe
v The Commonwealth (1994) 182 CLR 272 at 337, 360.
81 Ashby v White (1703) 2 Ld Raym 938 at 950, 953 ( 92 ER 126 at 134,
135-136).
82 (1992) 177 CLR 1 at 72.