Matter No. C022 of 1993 PATRICK KEVIN MULDOWNEY v THE STATE OF SOUTH
AUSTRALIA AND ANDREW BECKER, ELECTORAL COMMISSIONER FOR SOUTH AUSTRALIA
Matter No. C002 of 1993 ALBERT LANGER v THE COMMONWEALTH OF AUSTRALIA,
AUSTRALIAN ELECTORAL COMMISSION AND BRIAN COX F.C. 96/013 Constitutional
Law - State Constitutional Law

COURT
HIGH COURT OF AUSTRALIA
BRENNAN CJ(1), DAWSON(2), TOOHEY(3), GAUDRON(4), McHUGH(5), AND GUMMOW(6) JJ
HRNG
CANBERRA, 3 October 1995
#DATE 24:4:1996
#ADD 24:4:1996

  S. W. Tilmouth QC with R. C. Refshauge, G. C. Corr and G. J. Williams
appearing for the plaintiff in the matter of Muldowney, instructed by Deacons
Graham and James.

  B. M. Selway QC, Solicitor-General for the State of South Australia with G.
L. Ebbeck appearing for the first and second defendants in the matter of
Muldowney, instructed by the Crown Solicitor for the State of South Australia.

  G. Griffith QC, Solicitor-General for the Commonwealth with S. J. Gageler
and M. A. Perry for the Attorney-General of the Commonwealth intervening in
the matter of Muldowney instructed by the Australian Government Solicitor.

  G. Griffith QC, Solicitor-General for the Commonwealth with S. J. Gageler
and M. A. Perry for the Attorney-General of the Commonwealth for the first
defendant in the matter of Langer instructed by the Australian Government
Solicitor.

  S. J. Gageler appearing for the first and second defendants in the matter of
Langer, instructed by the Australian Government Solicitor.

  D. Graham QC, Solicitor-General for the State of Victoria with P. J. Hanks
intervening in both matters, instructed by the Victorian Government Solicitor.
ORDER
  1. Answer the question in the case stated as follows:
  Is either of section 76 and section 126 of the Electoral Act 1985 (SA)
invalid because it:
  (a) exceeds a limit on the legislative power of the Parliament of the State
of South Australia to be implied from the Constitution of the Commonwealth of
Australia; or because it
  (b) is in any event beyond the legislative power of the Parliament of the
State of South Australia?
  Answer: Neither section 76 nor section 126(1) of the Electoral Act 1985 (SA)
is invalid.
  2. The plaintiff pay the defendants' costs of the case stated.
JUDGE1
BRENNAN CJ   The plaintiff, an enrolled elector for the South Australian
electoral Division of Mitchell under the Electoral Act 1985 (SA) ("the Act"),
seeks declarations that each of ss 76 and 126 of the Act are invalid and
certain other relief dependent on the making of those declarations.  A case
was stated by Mason CJ, reserving for the opinion of the Full Court the
question:
    "Is either of section 76 and section 126 of the Electoral Act 1985
(SA) invalid because it:
    (a) exceeds a limit on the legislative power of the Parliament of the
State of South Australia to be implied from the Constitution of the
Commonwealth of Australia; or because it
    (b) is in any event beyond the legislative power of the Parliament of
the State of South Australia?"
This Court's jurisdiction is attracted as ss 76 and 126 of the Act are said to
be invalid because they infringe upon a freedom of political discussion that
is implied in the Commonwealth Constitution.  The matter thus arises under the
Commonwealth Constitution and involves its interpretation.

2.  Section 76 of the Act provides:
    " (1) In a Legislative Council election a voter shall mark his vote on
his ballot paper as follows:
    (a) by placing the number 1 in the square opposite the name of the
candidate for whom he votes as his first preference, and consecutive numbers
in the squares opposite the names of the remaining candidates so as to
indicate the order of his preference for all candidates;
    or
    (b) if the ballot paper contains a voting ticket square - by placing
the number 1 in that square.
    (2) In a House of Assembly election, a voter shall mark his vote on
his ballot paper by placing the number 1 in the square opposite the name of
the candidate for whom he votes as his first preference, and consecutive
numbers in the squares opposite the names of the remaining candidates so as to
indicate the order of his preference for all candidates.
    (3) For the purposes of this Act, where a voter places a tick or a
cross on a ballot paper, the tick or cross shall be deemed equivalent to the
number 1."
A "voting ticket square" in s 76(1)(b) is a square printed on a ballot paper
for a Legislative Council election indicating an order of preference for the
candidates according to the order of preference contained in a "voting
ticket".  A voting ticket has to be in writing, lodged with the Electoral
Commissioner or the relevant returning officer within 72 hours after the close
of nominations (1).  In Legislative Council elections a voting ticket is
adopted by an elector who marks the appropriate voting ticket square (2).  In
House of Assembly elections a voting ticket is adopted by simply placing the
number 1 on the ballot paper opposite the name of the candidate in relation to
whom a voting ticket has been lodged or by adding further preferences
consistent with that ticket (3).

3.  The mandatory term "shall mark" in s 76 cannot be construed to impose an
enforceable obligation on an elector to mark a ballot paper.  Although s 85(1)
imposes a duty on every elector to "record his vote", ss 61(2) and 85(2)
expressly permit an elector to leave the ballot paper unmarked.  The true
meaning of s 76 appears when it is read with s 94(1)(b) which makes informal a
ballot paper if -
    "it has no vote indicated on it, or it does not indicate, in the
manner required by this Act, the order of the voter's preference for all
candidates in the election".
Clearly a breach of the direction "shall mark" in s 76 has the consequence of
rendering the ballot paper informal.  Provisions supplementary to s 94(1)(b)
direct that ballot papers that do not conform precisely to the requirements of
s 76 are to be taken, in prescribed circumstances, to be formal.  Ballot
papers are not to be informal if only one square is left blank (4), if the
voting ticket provisions are engaged (5), if a candidate for the Legislative
Council whose name appears on the ballot paper dies before the poll (6) or if
the voter's intentions are otherwise clear (7). The supplementary provisions
result in the attribution of a voting preference for all candidates whose
names appear on the ballot paper save a deceased candidate for the Legislative
Council.

4.  If s 76 be construed as containing merely the direction to be complied
with in casting a formal vote, no ground of any substance was advanced for
attacking its validity.  The validity of s 76 must be upheld.  That section,
in combination with the compulsory voting requirement contained in s 85(1),
provides the statutory context in which the validity of s 126 falls for
consideration.

5.  Section 126 provides:
    " (1) A person shall not publicly advocate -
    (a) that a person who is entitled to vote at an election should
abstain from voting at the election;
    (b) that a voter should mark a ballot paper otherwise than in the
manner prescribed in section 76(1) or (2);
    or
    (c) that a voter should refrain from marking a ballot paper issued to
the voter for the purpose of voting.
    Penalty: $2 000.

    (2) A person shall not distribute how-to-vote cards in relation to an
election unless each card is marked so as to indicate a valid vote in the
manner prescribed in section 76(1) or (2).
    Penalty: $2 000."

6.  This section is designed to prevent the encouragement of electors to cast
a vote which would be excluded from the scrutiny by reason of s 94(1)(b). The
plaintiff does not challenge the validity of the whole of s 126.  He attacks
the validity of only pars (b) and (c) of s 126(1).

7.  The attack is mounted on two bases:  inconsistency with a freedom of
political discussion implied in the Commonwealth Constitution and
inconsistency with a similar freedom implied in the Constitution Act 1934 of
South Australia.  In so far as the freedom of political discussion implied in
the Commonwealth Constitution is invoked to invalidate s 126(1)(b) and (c),
the attack on the validity of the section is misconceived.  The freedom of
political discussion implied in the Commonwealth Constitution (8) is implied
to protect the working of the system of government of the Commonwealth
prescribed by the Constitution (9), but not to protect the working of the
system of government prescribed by the Constitution of a State.  Although the
provisions of the Commonwealth Constitution prevail in the event of any
inconsistency with the powers otherwise vested in the Parliament of a State,
none of the provisions from which a freedom of political discussion is
inferred affects the method of election of the members of a State Parliament
(10). Nor does s 126 affect the government of the Commonwealth.  The validity
of s 126 is therefore unqualified by the implied freedom of political
discussion to be found in the Commonwealth Constitution.

8.  In any event, the restriction on freedom of discussion imposed by s 126 is
not a restriction of the kind that, if imposed by a law of the Commonwealth,
would be inconsistent with the freedom of political discussion implied in the
Commonwealth Constitution.  An argument based on that implied freedom was
raised but not pressed in Langer v The Commonwealth (11).  In that case, the
validity of s 329A of the Commonwealth Electoral Act 1918 (Cth) was impugned.
Section 329A proscribed the publication of material with the intention of
encouraging voters "to fill in a ballot paper otherwise than in accordance
with s 240" which has an operation similar to s 76.  The plaintiff sought to
strike down s 329A so that he might be at liberty to encourage voters to cast
a vote that would not have complied with s 240 but would still be counted in
the scrutiny.  The Commonwealth Electoral Act permitted, pursuant to certain
saving provisions (12), the casting of a valid vote in one of a number of
forms that did not satisfy s 240 but, as s 240 was construed as the primary
method of choosing members of the House of Representatives, s 329A was upheld
as a valid protection of the primary method prescribed. In this case, s 76
together with the supplementary provisions in s 94 of the Act exhaust the
permissible ways of casting a formal vote.  The supplementary provisions allow
comparatively narrow departures from the primary method of voting prescribed
by s 76 of the Act.  And so, the reasons which led to the upholding of the
validity of s 329A in Langer would provide the reasons, mutatis mutandis, for
upholding the validity of s 126(1)(b) and (c) of the Act.

9.  Section 126, like s 329A of the Commonwealth Electoral Act, is a means of
protecting the method which Parliament has prescribed for the election of
members of Parliament - the Legislative Council and the House of Assembly of
South Australia.  The restrictions imposed on freedom of speech by s 126(1)(b)
and (c) are an incident of that protection.  In Langer, I expressed the view
(13) that -
    "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." <
Section 126(1)(b) and (c), like s 329A of the Commonwealth Electoral Act, is
reasonably capable of being regarded by Parliament as appropriate and adapted
to the achieving of the legitimate legislative purpose of protecting the
prescribed primary method of choosing members to sit in the respective Houses
of Parliament of South Australia.  Accordingly, if restrictions of the kind
imposed by s 126(1)(b) and (c) were imposed by a law of the Commonwealth, they
would not infringe the freedom of political discussion implied in the
Commonwealth Constitution.

10.  I turn to the South Australian Constitution.  It was conceded by the
Solicitor-General for South Australia that there is a constitutionally
entrenched (14) limitation upon State legislative power (15) "in like manner
to the Commonwealth Constitution" and that that limitation precluded
interference by an ordinary law (16) with freedom of discussion about
political affairs.  However, the Solicitor-General submitted that, since s 126
did not infringe that freedom of discussion, its enactment did not have to
satisfy the requirements of the entrenching provisions.  (In fact, the manner
and form requirements of the entrenching provisions were not satisfied.)

11.  Whether the Solicitor-General's concession was correctly made or not - a
question which it is unnecessary to examine - the conceded freedom of
discussion about political affairs is no wider in scope in relation to the
government of South Australia than the freedom of political discussion implied
in the Commonwealth Constitution in relation to the government of the
Commonwealth.  As s 126(1)(b) and (c) does not impose a restriction of a kind
that would be invalid under the Commonwealth Constitution, it does not impose
a restriction that is invalid under the Constitution of South Australia.

12.  I would therefore answer the question reserved as follows:
    Neither s 76 nor s 126(1) of the Electoral Act 1985 (SA) is invalid.
JUDGE2
DAWSON J   The question stated by Mason CJ for the consideration of the Court
is as follows:
    "Is either of section 76 and section 126 of the Electoral Act 1985
(SA) invalid because it:
    (a) exceeds a limit on the legislative power of the Parliament of the
State of South Australia to be implied from the Constitution of the
Commonwealth of Australia; or because it
    (b) is in any event beyond the legislative power of the Parliament of
the State of South Australia?"

2.  It transpired during argument that the plaintiff challenged the validity
of s 126(1) and not s 126(2) of the Electoral Act 1985 (SA) ("the Act").
Section 126(1) provides:
    "A person shall not publicly advocate -
    (a) that a person who is entitled to vote at an election should
abstain from voting at the election;
    (b) that a voter should mark a ballot paper otherwise than in the
manner prescribed in section 76(1) or (2);
    or
    (c) that a voter should refrain from marking a ballot paper issued to
the voter for the purpose of voting.
    Penalty: $2000."

3.  Section 76 of the Act provides:
    "(1) In a Legislative Council election a voter shall mark his vote on
his ballot paper as follows:
    (a) by placing the number 1 in the square opposite the name of the
candidate for whom he votes as his first preference, and consecutive numbers
in the squares opposite the names of the remaining candidates so as to
indicate the order of his preference for all candidates;
    or
    (b) if the ballot paper contains a voting ticket square - by placing
the number 1 in that square.
    (2) In a House of Assembly election, a voter shall mark his vote on
his ballot paper by placing the number 1 in the square opposite the name of
the candidate for whom he votes as his first preference, and consecutive
numbers in the squares opposite the names of the remaining candidates so as to
indicate the order of his preference for all candidates.
    (3) For the purposes of this Act, where a voter places a tick or a
cross on a ballot paper, the tick or cross shall be deemed equivalent to the
number 1."
The "voting ticket square" referred to in s 76(1)(b) enables a voter, by
placing the number 1 in the square, to record his or her preferences for all
candidates in a Legislative Council election in accordance with a voting
ticket which has been registered before the election, without placing numbers
in any other square.  Also, under s 93(2) where, in relation to a House of
Assembly election, a voter marks a ballot paper by placing the number 1 in the
square opposite the name of a particular candidate and indicates no further
preference and there is one voting ticket registered for the purposes of the
election in relation to that candidate, the ballot paper shall be deemed to
have been marked in accordance with that voting ticket.  A voting ticket must,
under s 63(4)(a), indicate by consecutive numbers commencing with the number 1
an order of preference for all candidates, that is to say, must constitute a
full preferential vote.

4.  The Act makes voting compulsory.  Under s 85(7), every elector who fails
to vote at an election without a valid and sufficient reason for the failure
shall be guilty of an offence.  But the offence does not consist of failing to
cast a formal vote.  Section 94(1)(b) provides that a ballot paper is informal
if it has no vote indicated on it, or does not indicate, in the manner
required by the Act, the order of the voter's preference for all candidates in
the election.  There are provisions (17) to save from informality votes not
cast in accordance with ss 76(1) and (2) but any votes saved must be read as
full preferential votes.  Section 85(1) states that it is the duty of every
elector to record his or her vote at each election in a district for which he
or she is enrolled.  Yet s 85(2) says that an elector who leaves the ballot
paper unmarked but who otherwise observes the formalities of voting is not in
breach of the duty imposed by sub-s (1).  Section 61(2) requires the ballot
paper to contain the words: "You are not legally obliged to mark the ballot
paper."  Practically speaking, it would seem that an elector who goes through
the motions of casting a vote will escape prosecution under s 85(7), though it
is open to argument that an elector who marks his or her ballot paper
otherwise than in accordance with s 76 fails to comply with s 85(7) because
the ballot paper will be informal and incapable of allowing a vote to be
recorded.

5.  It is unnecessary to consider in any more detail the system of voting for
which the Act provides, for it is common ground that it provides for a full
preferential system.  That is to say, in order to cast a formal vote, a voter
must in one way or another express consecutively his or her preference for all
candidates.

6.  Sections 11 and 27 of the Constitution Act 1934 (SA) provide that the
members of the Legislative Council and the House of Assembly shall be elected
by the inhabitants of the State legally qualified to vote.  These provisions
do not expressly provide that the members be directly chosen by the people as
do ss 7 and 24 of the Commonwealth Constitution, but in effect they are the
same because they provide for elections by inhabitants eligible to vote and
elections necessarily require a choice to be made by voters.  And a choice is
nevertheless a choice notwithstanding that a voter is required to make it
against his wishes.  A full preferential system of voting which is compulsory
may require a voter to express a preference, and so cast a vote, for a
candidate in favour of whom that voter would rather not cast a vote at all,
but that is to do no more than require the voter to make a choice within the
confines of a particular electoral system (18).  It was held by this Court in
Langer v The Commonwealth (19) that a compulsory preferential system of voting
satisfies the requirements of the Commonwealth Constitution.  It follows that
such a system must satisfy the requirement in the South Australian
Constitution Act that members of parliament be elected by the inhabitants of
the State eligible to vote.  Thus s 76 of the Act is a valid provision.

7.  In McGinty v Western Australia (20) I agreed, for the reasons given by the
Chief Justice, that the Commonwealth Constitution provides only for Federal
elections and its provisions in that regard, including any implications to be
drawn from them, do not prescribe the mode of State elections.  That does not,
of course, mean that the Commonwealth provisions do not extend to the States,
but they do so in relation to Federal elections and not State elections.
Nevertheless the plaintiff contends that the so-called guarantee of freedom of
political communication, which has been found in other cases (21) to be
implied in the concept of representative democracy or representative
government, extends to the States so as to invalidate s 126 of the Act.
Alternatively, the plaintiff submits that a similar freedom is to be found by
implication from the system of representative government ordained by ss 11 and
27 of the South Australian Constitution Act.

8.  I have elsewhere expressed my inability to accept that a guarantee of
freedom of communication arises from the provisions of the Commonwealth
Constitution (22).  The same reasoning would lead to the same conclusion in
relation to the South Australian Constitution Act.  That is to say, neither
the minimal requirements of representative government laid down by the
Commonwealth Constitution nor those laid down by the South Australian
Constitution Act provide any foundation for the implication of a free-standing
guarantee of freedom of communication.  Apart from those minimal requirements,
the system of representative government, including freedom of communication,
which is to prevail in the Commonwealth and the State is left to the
respective parliaments.

9.  However, both the Commonwealth Constitution and the South Australian
Constitution Act provide for elections for the purpose of affording to the
people an opportunity to choose their representatives in parliament and, as I
have previously said, the choice must be a true choice, that is to say, a
choice made with access to the available alternatives.  Those alternatives
include not only the candidates and their policies, but also, as is clear from
what I said in Langer v The Commonwealth, the available means of casting a
formal vote.  The result is, in my view, that neither the Commonwealth
parliament nor the South Australian parliament, save in the latter case in
accordance with any applicable entrenching provisions (23), can validly
legislate in a manner which is incompatible with the exercise by electors of a
genuine choice.  In this respect, it is plain that the relevant provisions
prescribing the choice are ss 11 and 27 of the South Australian Constitution
Act and not the corresponding provisions (ss 7 and 24) of the Commonwealth
Constitution.  It is unnecessary to consider further the entrenching
provisions in the Constitution Act as no argument based upon those provisions
was advanced.

10.  In Langer v The Commonwealth (24), it was my view that s 329A of the
Commonwealth Electoral Act 1918 (Cth), which prohibited the encouragement of
voters to exercise a right given them by that Act to cast a form of optional
or selective preferential vote, was inconsistent with s 24 of the Commonwealth
Constitution, that being the section which provides for the direct choice by
the people of members of the House of Representatives. It was my view that s
329A prevented, or at the very least discouraged, the communication to
electors of an alternative mode of voting which was available to them under
that Act.  It was inconsistent with their constitutional right to exercise a
genuine, that is to say informed, choice because of its tendency to deprive
them of information necessary for the purpose of making such a choice.

11.  This case is different.  The South Australian Electoral Act provides for
a full preferential system of voting and contains no alternative method in the
form of an optional or selective preferential system.  The effect of s 126(1)
is merely to prohibit persons from publicly advocating that a person should so
mark his or her ballot paper, or refrain from marking it, in such a way as to
render it informal and thus ineffective for the purpose of casting a vote.  Of
course, provided a voter complies with s 85, he or she does not have to cast a
formal vote.  But if a voter chooses not to cast a formal vote he or she is
opting out of the election in the sense that he or she is refusing to
participate in the selection of a candidate.  It cannot, in my view, be
incompatible with the exercise of a genuine choice by a voter that others be
prohibited from encouraging that voter to do those things which will render a
purported choice ineffective. Unlike the situation in Langer, s 126(1) does
not have the aim of discouraging electors from exercising an option which is
available to them in the casting of a formal vote but is designed to ensure
that electors are not encouraged to cast an ineffective vote.

12.  It is for these reasons that s 126(1) is, in my view, valid.  I would
answer the question in the case stated by saying that neither s 76 nor s
126(1) of the Act is invalid.
JUDGE3
TOOHEY J   The Electoral Act 1985 (SA) ("the Act") makes voting for the
Legislative Council and the House of Assembly compulsory.  It does so by
providing that every elector who fails to vote at an election without a valid
and sufficient reason for the failure commits an offence (25).  It is a valid
and sufficient reason if an elector was ineligible to vote at the election,
was absent from the State on polling day or had a conscientious objection to
voting (26).

2.  It is not an offence to cast an informal vote.  A ballot paper is informal
if no vote is indicated on it or if the ballot paper does not indicate, as
required by the Act, the order of the voter's preference for all candidates in
the election.  The Act contains a number of provisions which are aimed at
avoiding informality in the case of votes not cast in accordance with s 76(1)
and (2) of the Act (27).  Any votes so saved are treated as full preferential
votes.  Thus the voting system provided by the Act is, as other judgments
explain, a full preferential system.

3.  While it is the duty of every elector to record a vote at each election in
a district for which he or she is enrolled (28), an elector who leaves a
ballot paper unmarked but who otherwise observes the formalities of voting
does not act in breach of that duty (29).  Indeed, a ballot paper must include
a statement:  "You are not legally obliged to mark the ballot paper." (30)
Since the basis of the plaintiff's attack on s 76 of the Act is that the
section requires a voter, against his or her wishes, actually to cast a vote,
the attack must fail.  Counsel for the plaintiff accepted this as inevitable
if the construction of s 76 contended for was not accepted.

4.  In Langer v The Commonwealth (31) the Court held that a compulsory
preferential system of voting met the requirements of the Commonwealth
Constitution that the Senate and the House of Representatives be "directly
chosen by the people" (32).  The Constitution Act 1934 (SA) provides that the
Legislative Council and the House of Assembly shall consist of 22 members and
47 members respectively, "elected by the inhabitants of the State legally
qualified to vote." (33)  In either case inherent is the idea that the
"people" or the "inhabitants" will choose between those standing for election.
Thus the reasoning which led the Court to conclude in Langer that the
Commonwealth provision was valid inevitably leads to the conclusion that the
impugned South Australian provision is valid.

5.  The plaintiff also challenges the validity of s 126 of the Act, though
only in relation to s 126(1)(b) and (c) which makes it an offence publicly to
advocate:
    "(b) that a voter should mark a ballot paper otherwise than in the
manner prescribed in section 76(1) or (2);
    or
    (c) that a voter should refrain from marking a ballot paper issued to
the voter for the purpose of voting."
He does so by reference to the right of the people of South Australia to
express their political opinions and consequentially an implied freedom of
political expression.

6.  The implication of the freedom to communicate on political matters under
the Commonwealth Constitution was identified in Nationwide News Pty Ltd v
Wills (34) and in Australian Capital Television Pty Ltd v The Commonwealth
(35) as a freedom engendered by the concept of representative democracy or
representative government to be found in the Constitution.  In Langer, Gaudron
J and I held that this freedom was not infringed by a law which was reasonably
capable of being viewed as appropriate and adapted to the furtherance or
enhancement of the democratic process called for by the Constitution.  It is
unnecessary to repeat what is set out in that joint judgment.

7.  The Solicitor-General for South Australia conceded that when various
provisions of the Constitution Act are read together an implication of
representative government is to be found.  He mentioned, in particular, ss 4,
11, 27, 32 and Pt 5 (ss 76-88).  Section 4 of the Constitution Act provides
that the Parliament of South Australia shall be constituted by a Legislative
Council and a House of Assembly.  Sections 11 and 27 have been mentioned
earlier in these reasons.  Section 32 is concerned with the division of the
State into House of Assembly electoral districts through the machinery of the
Electoral Districts Boundaries Commission.  The Commission is established by s
78, found in Pt 5.  Also within Pt 5 is s 88, an entrenching provision that no
provision of s 32 or of Pt 5 "shall be repealed, suspended or amended", except
as provided in the section. Section 88(2) and (3), also within Pt 5, identify
certain principles of the electoral process which may not be offended against
except consequent upon approval of the bill by the electors at a referendum.
Reference may be made to s 8 which requires an absolute majority of both the
Legislative Council and the House of Assembly to "repeal, alter, or vary" any
of the provisions of the Constitution Act, and also to s 10A which requires a
referendum before either House may be abolished or the powers of the
Legislative Council altered.

8.  In McGinty v Western Australia (36) I held that the Constitution of
Western Australia contains an implication of representative democracy.  I
shall not repeat the considerations that led to that conclusion except to say
that I found the implication within the constitutional framework of Western
Australia and not by reason of any such implication imposed by the
Commonwealth Constitution itself, in particular not by s 106 of that
Constitution.  Equally, if any such implication is to be found in the present
case, it is not by reason of the Commonwealth Constitution.

9.  In view of the concession made by the Solicitor-General it is unnecessary
to explore the constitutional framework of South Australia though it contains
elements found within the constitutional framework of Western Australia and
which led to the implication of representative democracy I held to exist
there.  In any event the concession made here is an implication of
representative government.

10.  In Theophanous v Herald and Weekly Times Ltd (37) Mason CJ, Toohey and
Gaudron JJ said:
    "Because the system of representative government depends for its
efficacy on the free flow of information and ideas and of debate, the freedom
extends to all those who participate in political discussion."
The implication of freedom of communication which springs from representative
government does not extend to freedom of expression generally (38).  The
freedom exists to further the democratic process. Can it be said that a law,
whereby a person who publicly advocates that a person should abstain from
voting at an election or that a voter should mark a ballot paper otherwise
than in accordance with s 76 commits an offence, is struck down by the implied
freedom upon which the plaintiff relies?

11.  The intention of s 126 is clear enough.  It is to prohibit public conduct
aimed at encouraging voters not to vote or, if they do vote, to vote
informally by not marking their ballot papers or by marking them in such a way
as to ensure their informality.  Curiously, the plaintiff does not challenge
the validity of s 126(1)(a) which is a prohibition against publicly advocating
that those entitled to vote should abstain from voting.  If par (b) or (c) is
invalid it is hard to see why par (a) is not likewise invalid.  However the
plaintiff has confined his attack to pars (b) and (c) and it is necessary to
consider that attack independently of the existence of par (a).

12.  The emphasis placed by the plaintiff on the implied freedom of
communication isolates that freedom from the system of representative
government which it serves to maintain.  A law which is reasonably capable of
being viewed as appropriate and adapted to maintaining that system is unlikely
to be struck down by the implied freedom.  The restrictions imposed by s
126(1)(b) and (c) are incidental to the protection of the full preferential
system of voting which the legislature has chosen.  What is prohibited is
public (not private) advocacy aimed at bringing about an ineffective vote.  In
the particular circumstances of this legislation it does not advance the
plaintiff's case to rely upon s 85(2) of the Act whereby an elector who leaves
a ballot paper unmarked is nevertheless not in breach of the duty to record a
vote imposed by sub-s (1).  In the context of a secret ballot the position
could hardly be otherwise. Without such a provision the secrecy of the ballot
might be seriously invaded.

13.  The question for the Court is not the wisdom or desirability of the
provisions challenged by the plaintiff.  The question is one of their
validity, to be answered by reference to the principles discussed in these
reasons.  By reference to those principles, the question stated for the
consideration of the Court should be answered:  Neither s 76 nor s 126(1) of
the Electoral Act 1985 (SA) is invalid.
JUDGE4
GAUDRON J   The relevant legislative provisions and the question stated for
the consideration of the Full Court are set out in the judgment of Gummow J.
It emerged during the course of argument that there was no challenge to the
validity of s 126(2) of the Electoral Act 1985 (SA) ("the Act") and the case
can therefore be approached on the basis that the question is, for practical
purposes, confined to the validity of ss 76 and 126(1) of the Act.

2.  I agree with Gummow J, for the reasons that his Honour gives, that, when
read with other provisions of the Act, s 76 does not require a voter to cast a
vote by marking his or her ballot paper and, thus, there is no foundation for
the plaintiff's argument that s 76 is invalid.

3.  I agree also with his Honour that s 126(1) of the Act infringes neither
the freedom of political discussion which is an indispensable concomitant of
representative democracy as embodied in the text and structure of the
Australian Constitution, nor any like freedom, if there be such, to be found
in the text or structure of the Constitution of the State of South Australia.
I shall state my reasons for so concluding.

4.  The purpose of the freedom to discuss political matters identified in
Nationwide News Pty Ltd v Wills (39) and in Australian Capital Television Pty
Ltd v The Commonwealth (40) is to maintain the democratic processes of the
Commonwealth of Australia, not those of its States.  As I explained in Langer
v The Commonwealth (41), which raised similar issues and was heard immediately
following the present case, the nature and the source of the freedom are such
that it does not operate to strike down laws which curtail freedom of
communication in those limited circumstances where that curtailment is
reasonably capable of being viewed as appropriate and adapted to the
furtherance, or enhancement, of the democratic process which the Australian
Constitution requires for elections for the Parliament of the Commonwealth.
As Mason CJ pointed out in relation to federal elections in Australian Capital
Television, "Parliament may regulate the conduct of persons with regard to
elections so as to prevent intimidation and undue influence, even though that
regulation may fetter what otherwise would be free communication" (42).
Equally, although, perhaps, less obviously, the freedom which inheres in the
Australian Constitution and which extends to matters within the province of
the States (43) does not operate to strike down a law which curtails freedom
of communication in those limited circumstances where that curtailment is
reasonably capable of being viewed as appropriate and adapted to furthering or
enhancing the democratic processes of the States.  At least that is so if it
does not interfere with the democratic processes of the Commonwealth.

5.  One reason why the freedom does not strike down laws which, in the sense
earlier indicated, further or enhance the democratic processes of the States
is the interrelationship of the powers of the States and the Commonwealth.  As
I pointed out in Australian Capital Television, "the exercise or non-exercise
by a State of its powers may be a factor influencing decisions as to the
exercise of Commonwealth power" (44).  In a context where the legislative
power of the Commonwealth is to be exercised by a democratically elected
legislature and its executive power is, in the main, entrusted to
democratically elected Ministers of State (45), it is obviously in the
interests of the Australian people for State legislative and executive powers
to be exercised, respectively, by democratically elected legislatures and
democratically elected Ministers. That interest is such that it necessarily
requires that the freedom implied from the text and structure of the
Australian Constitution does not operate to strike down laws which, although
they fetter freedom of communication, are capable of being viewed as operating
to further the democratic processes of the States provided, as already
indicated, they do not interfere with the democratic processes of the
Commonwealth.

6.  There is a second and, perhaps, more important reason why the freedom
which exists for the purpose of maintaining the democratic processes of the
Commonwealth does not strike down laws which operate, in the sense earlier
indicated, to further or to enhance the democratic processes of the States.
The States are constituent parts of the federation which was brought into
existence as a free and democratic society.  As Barwick CJ pointed out in
Victoria v The Commonwealth (46), the States owe their existence, as States,
to the Australian Constitution and their colonial constitutions were continued
by the Australian Constitution so as to become State constitutions, but
subject to the Australian Constitution. Their subjection to the Australian
Constitution is effected by s 106 which provides:
    "The Constitution of each State of the Commonwealth shall, subject to
this Constitution, continue as at the establishment of the Commonwealth, or as
at the admission or establishment of the State, as the case may be, until
altered in accordance with the Constitution of the State."

7.  It is now settled that the federal character of the Australian
Constitution operates to limit the legislative power of the Parliament of the
Commonwealth "in the interest of preserving the existence of the States as
constituent elements in the federation" (47).  In consequence, the Parliament
can neither legislate to discriminate by "the placing on the States of special
burdens or disabilities" (48) nor enact "laws of general application which
operate to destroy or curtail the continued existence of the States or their
capacity to function as governments" (49).

8.  It must be accepted, following the decisions in Nationwide News and
Australian Capital Television, that the States are not merely constituent
elements of the federation, but constituent elements of a federal democracy.
This, when considered in conjunction with the subjection of the constitutions
of the States to the Australian Constitution, requires that, in the interest
of preserving the democratic nature of the federation, the States be and
remain essentially democratic.  And it also requires that the freedom of
political discussion identified in Nationwide News and in Australian Capital
Television does not operate to strike down laws which, in the sense earlier
indicated, operate to further or enhance the democratic processes of the
States, provided they do not interfere with the democratic processes of the
Commonwealth.

9.  It is not necessary to consider the plaintiff's argument that there is to
be discerned in the Constitution of South Australia a freedom of political
discussion of the kind recognised in the Australian Constitution in Nationwide
News and Australian Capital Television.  If there is such a freedom, its
nature and source are also such as to compel the conclusion that it does not
strike down laws which, in the sense earlier indicated, operate to further or
enhance the democratic processes of South Australia.

10.  A law which operates to promote full, equal and effective participation
in the electoral process is a law which is clearly capable of being viewed as
operating to further the democratic process.  Paragraphs (a) and (c) of s
126(1) of the Act operate in that way.  They operate to prevent conduct which,
in the ordinary course, might encourage voters not to participate in the
election:  in the case of paragraph (a), by abstaining from voting or, more
accurately, from not observing the formalities associated therewith (50); in
the case of paragraph (c), by not marking their ballot papers.

11.  The position with respect to s 126(1)(b) is, perhaps, less clear.  That
paragraph prevents a person from publicly advocating "that a voter should mark
a ballot paper otherwise than in the manner prescribed in section 76(1) or
(2)".  It is convenient to set out the terms of those subsections:
    " (1) In a Legislative Council election a voter shall mark his vote on
his ballot paper as follows:
    (a) by placing the number 1 in the square opposite the name of the
candidate for whom he votes as his first preference, and consecutive numbers
in the squares opposite the names of the remaining candidates so as to
indicate the order of his preference for all candidates;
    or
    (b) if the ballot paper contains a voting ticket square-by placing the
number 1 in that square.
    (2) In a House of Assembly election, a voter shall mark his vote on
his ballot paper by placing the number 1 in the square opposite the name of
the candidate for whom he votes as his first preference, and consecutive
numbers in the squares opposite the names of the remaining candidates so as to
indicate the order of his preference for all candidates."

12.  Subject to one matter, s 76 of the Act is to similar effect, and operates
within much the same structure, as s 240 of the Commonwealth Electoral Act
1918 (Cth) ("the Commonwealth Act").  That latter provision was considered in
Langer.  There is a significant difference between the voting system directed
by s 76 of the Act and that directed by s 240 of the Commonwealth Act in that
the latter permits votes to be exhausted (51) and, thus, permits of a limited
form of optional preferential voting in a House of Representatives election
for which there are three or more candidates. Section 76 maintains a system of
full preferential voting but, s 94(6) of the Act apart, it does so by deeming
certain ballot papers to express an order of preference for all candidates.
By s 94(6), if the voter's intention is clear, "the ballot paper is not
informal and shall be counted as if the voter's intention had been properly
expressed in the manner required by (the) Act."

13.  The full preferential system of voting is maintained by a series of steps
set out in s 94 of the Act.  For present purposes, it is sufficient to note
that, by s 94(1)(b), a ballot paper that "does not indicate, in the manner
required by (the) Act, the order of the voter's preference for all candidates
in the election" is informal unless it satisfies the conditions in one or
other of sub-ss (3) and (4) and (6).  It is unnecessary to refer further to
sub-s (6).  It is provided by s 94(3) that a ballot paper which "indicates by
consecutive numbers commencing with the number 1 (an) order of ... preference
for all candidates ... except one" is not informal and it is "presumed that
the candidate for whom no preference is expressed is the one least preferred
by the voter and that the voter has accordingly indicated the order of his
preference for all candidates".  By s 94(4), "(a) ballot paper to which effect
can be given under the provisions of (Pt X, Div II) relating to registered
voting tickets" is not informal.

14.  Leaving aside the situation in which a voter places the number 1 in a
voting ticket square in accordance with s 76(1)(b) of the Act, the effect of
the provisions of Pt X, Div II relating to registered voting tickets so far as
concerns Legislative Council elections is that, by s 92(4) (52), certain other
ballot papers are deemed to indicate an order of preference in accordance with
a registered voting ticket.  And, so far as concerns Legislative Assembly
elections, sub-ss (2) and (4) of s 93 (53) operate so that a ballot paper
which has the number 1 against the name of a candidate who has registered a
voting ticket is deemed to express the order of preference of that voting
ticket, provided that, if any further preference is indicated on the ballot
paper, it is consistent with the order of preference of that voting ticket.
If there are two registered voting tickets, the effect of s 92(3) (54), in the
case of Legislative Council elections, and of s 93(3) (55), in the case of
Legislative Assembly elections, is that half are deemed to express an order of
preference in accordance with one ticket and half in accordance with the
other, with the effect of the remaining ballot paper being determined by lot
if the number of ballot papers is not even.

15.  Putting aside ballot papers which are deemed to express an order of
preference for all candidates, s 126(1)(b) operates to prevent conduct which,
in the ordinary course, might encourage voters to fill in their ballot papers
in such a way that they are informal and excluded from the count and, in that
event, it is a law which is clearly capable of being viewed as operating to
further the democratic process.  And that is so even if it transpires that a
voter's intention is clear and his or her ballot paper is rendered formal by s
94(6) of the Act.

16.  So far as concerns ballot papers which are deemed to express an order of
preference for all candidates, other considerations apply.  In some cases, the
voter may, in fact, wish his or her ballot paper to be treated as expressing
the order of preference which it is presumed to have.  But that is not
necessarily so.  A voter may prefer not to have his or her ballot paper
counted than to have it counted on the basis that it expresses even a last
preference for a candidate against whose name he or she does not place any
number.  And even if it could be assumed that a voter wished his or her ballot
paper to be treated as expressing an order of preference in accordance with a
registered voting ticket, it may not be counted that way if there are two
registered voting tickets.  If there are two registered voting tickets, the
manner in which preferences are distributed will depend on chance.

17.  It is clearly in the interests of the democratic process that a voter's
actual intention be capable of ascertainment from his or her ballot paper, and
that effect be given to that intention and not some intention which he or she
is deemed to have, particularly if the effect given to the ballot paper may
depend on chance.  So far as concerns ballot papers which are deemed to
express an order of preference for all candidates, s 126(1)(b) operates to
encourage voters to fill in their ballot papers in a way that makes their
voting intentions manifest and ensures that ballot papers will be counted in a
way that gives effect to their intentions.  Because it operates in this way in
relation to those ballot papers, s 126(1)(b) is, in that respect, also
reasonably capable of being viewed as appropriate and adapted to furthering
the democratic process.

18.  Given that there was no challenge to the validity of s 126(2) of the Act,
and that it is unnecessary to consider whether there is a separate freedom of
discussion of political matters inhering in the Constitution of South
Australia, the appropriate course is to answer the question in the case stated
by saying that neither s 76 nor s 126(1) of the Act is beyond the legislative
power of the Parliament of South Australia.
JUDGE5
McHUGH J   I agree with the judgment of Gummow J.
JUDGE6
GUMMOW J   Pursuant to s 18 of the Judiciary Act 1903 (Cth) Mason CJ stated
for consideration of the Full Court the following question:
    "Is either of section 76 and section 126 of the Electoral Act 1985
(SA) invalid because it:
    (a) exceeds a limit on the legislative power of the Parliament of the
State of South Australia to be implied from the Constitution of the
Commonwealth of Australia; or because it
    (b) is in any event beyond the legislative power of the Parliament of
the State of South Australia?"

2.  In the course of argument concerning the proper construction of s 76 of
the Electoral Act 1985 (SA) ("the Act"), it became apparent that s 76 was said
to be invalid only upon the hypothesis that a particular construction be
adopted.  Senior counsel for the plaintiff submitted:
    "The challenge to section 76 could only succeed, if at all, if section
76 dominates the Act and requires the voter, not only to come to the polling
booth and go through the formalities, but actually to cast a vote even though
that vote might be not in accordance with what the elector would like to do."

3.  However, when s 76 is read with other provisions of the Act, particularly
s 85, it is apparent that s 76 does not have this operation.  Accordingly, the
precondition for the asserted invalidity does not arise.  I turn to explain
why this is so.

4.  By s 4(1) of the Act, the term "elector" is defined as follows:
    "'elector' means a person whose name appears on a roll as an elector
(not being a person under the age of 18 years who is provisionally enrolled)
and includes a person whose name should appear on a roll as an elector but has
been, by error, omitted from the roll".
The term "roll" means an electoral roll kept under the Act (s 4(1)).

5.  Section 76 comprises Div III of Pt IX of the Act and is headed "INDICATION
OF VOTE".  The section states:
    "(1) In a Legislative Council election a voter shall mark his vote on
his ballot paper as follows:
    (a) by placing the number 1 in the square opposite the name of the
candidate for whom he votes as his first preference, and consecutive numbers
in the squares opposite the names of the remaining candidates so as to
indicate the order of his preference for all candidates;
    or
    (b) if the ballot paper contains a voting ticket square - by placing
the number 1 in that square.
    (2) In a House of Assembly election, a voter shall mark his vote on
his ballot paper by placing the number 1 in the square opposite the name of
the candidate for whom he votes as his first preference, and consecutive
numbers in the squares opposite the names of the remaining candidates so as to
indicate the order of his preference for all candidates.
    (3) For the purposes of this Act, where a voter places a tick or a
cross on a ballot paper, the tick or cross shall be deemed equivalent to the
number 1."
The term "voting ticket square" used in par (b) of s 76(1) is defined in s
4(1) as meaning a square, "printed on a ballot paper for a Legislative Council
election above the name of a candidate or the names of candidates forming a
group", which indicates that "a voting ticket" or "voting tickets" have been
registered in relation to that candidate or group.  In turn, the expression
"voting ticket" is dealt with as follows in s 4(1):
    "'voting ticket' means a written statement of a particular order in
which a voter might allocate preferences in an election, being a statement for
use under this Act in interpreting the votes of voters who -
    (a) in relation to a Legislative Council election - choose to vote in
accordance with the voting ticket;
    (b) in relation to a House of Assembly election - do not indicate an
order of preference covering all candidates".

6.  Ballot papers shall be in a form prescribed by regulation (s 61(1)).
However, s 61(2) requires the inclusion on each ballot paper at or near the
top thereof and in clearly legible print of the statement:
    "You are not legally obliged to mark the ballot paper."

Further, whilst s 85(1) states that "it is the duty of every elector to record
his vote at each election in a district for which he is enrolled", this is
expressed to be subject to s 85(2).  That states:
    "An elector who leaves the ballot paper unmarked but who otherwise
observes the formalities of voting is not in breach of the duty imposed by
subsection (1)."

7.  An indication of the content of the phrase in s 85(2) "otherwise observes
the formalities of voting" is provided by ss 78 and 79.  Where an elector who
is entitled to vote in an election attends a polling booth and claims to vote,
a ballot paper shall be issued to that elector (s 78(1)).  The voter, on
receipt of the ballot paper, shall, without delay, retire alone to some
unoccupied compartment of the booth and there, in private, mark his vote on
the ballot paper, then deposit the ballot paper in the ballot box and leave
the booth (s 79(1)).

8.  Except where otherwise provided, the offences constituted by the Act are
summary offences (s 137).  Every elector who fails to vote at an election
without a valid and sufficient reason for the failure is guilty of an offence
(s 85(7)).  But it is apparent from s 85(2) that, as one might expect, given
the practicalities involved, failure to mark the ballot paper would not be a
failure to vote.  That this is so is affirmed by the requirement of s 61(2)
that the ballot paper include a statement that the elector is not legally
obliged to mark the ballot paper.

9.  When the phrase "a voter shall mark his vote on his ballot paper", which
appears in sub-ss (1) and (2) of s 76, is read with ss 61, 79 and 85, it is
readily apparent that s 76 does not require the voter to cast a vote by
marking the ballot paper, even though that vote might not be in accordance
with the wishes of the voter.  This being the proper construction of s 76, it
follows, in accordance with the manner of presentation of the plaintiff's
case, that the ground has not been laid for the presentation of any argument
for the invalidity of s 76.

10.  The operation of s 76 is to specify the manner required by the Act for
the indication of a vote which will be operative rather than informal.  That
this is so is apparent from a reading of s 76 in conjunction with Div II (ss
92-94) of Pt X of the Act.  Part X is headed "THE SCRUTINY" and Div II
"INTERPRETATION AND VALIDITY OF BALLOT PAPERS".

11.  A ballot paper shall not be informal except for a reason specified in s
94 (s 94(7)).  So far as is presently relevant, the balance of s 94 states:
    "(1) Subject to this section, a ballot paper is informal if -
    ...
    (b) it has no vote indicated on it, or it does not indicate, in the
manner required by this Act, the order of the voter's preference for all
candidates in the election;
    ...

    (3) Where a voter indicates by consecutive numbers commencing with the
number 1 the order of his preference for all candidates on a ballot paper
except one -
    (a) the ballot paper is not informal;
    and
    (b) it shall be presumed that the candidate for whom no preference is
expressed is the one least preferred by the voter and that the voter has
accordingly indicated the order of his preference for all candidates.
    (4) A ballot paper to which effect can be given under the provisions
of this Division relating to registered voting tickets is not informal by
reason of subsection (1)(b).
    ...

    (6) Where -
    (a) a ballot paper has not been marked by a voter in the manner
required by this Act;
    but
    (b) notwithstanding that fact, the voter's intention is clear,
    the ballot paper is not informal and shall be counted as if the
voter's intention had been properly expressed in the manner required by this
Act."
The expression "registered voting tickets" is used in s 94(4).  It is defined
in s 4(1) of the Act as meaning "a voting ticket lodged under section 63".  I
have referred to the definition of the expression "voting ticket".  Section 63
provides for the lodgment of voting tickets with the Electoral Commissioner or
the returning officer.  Sections 92 and 93 (which with s 94 comprise Div II of
Pt X of the Act) contain special provisions to render effective certain
ballots by deeming them to have been marked in accordance with a registered
voting ticket where that otherwise would not be the case.

12.  The starting point for the consideration of informal ballot papers is par
(b) of s 94(1).  A ballot paper is informal if it does not indicate in the
manner required by the Act (that is to say, by s 76) the order of the
preference of the voter for all candidates in the election.  That basic
requirement of what might be called a full preferential system of voting is
expressed in s 94(1) as being subject to the other provisions of s 94. These,
as I have indicated, contain various provisions, in turn (in the case of s
94(4)) referring to other sections in the Division and manifest a design,
where practicable, to save rather than to defeat the exercise of the
franchise.

13.  Nevertheless, the objective of the legislation plainly is to achieve
unequivocal exercise of the franchise by the marking of votes on ballot papers
in the manner identified in s 76.  This is of importance in the construction
of s 126.  That is the other provision to which the plaintiff directed
arguments as to invalidity.

14.  The following is the text of s 126:
    "(1) A person shall not publicly advocate -
    (a) that a person who is entitled to vote at an election should
abstain from voting at the election;
    (b) that a voter should mark a ballot paper otherwise than in the
manner prescribed in section 76(1) or (2);
    or
    (c) that a voter should refrain from marking a ballot paper issued to
the voter for the purpose of voting.
    Penalty:  $2 000.

    (2) A person shall not distribute how-to-vote cards in relation to an
election unless each card is marked so as to indicate a valid vote in the
manner prescribed in section 76(1) or (2).
    Penalty:  $2 000."

15.  The plaintiff does not attack the validity of the prohibition in par (a)
of s 126(1), that concerned with publicly advocating abstention from voting.
There is no challenge to the Act in so far as it establishes a system of
compulsory voting.  Nor, as I understand it, is an attack made upon the
validity of s 126(2).  This is concerned with the distribution of how-to-vote
cards.  Rather, it was submitted for the plaintiff that pars (b) and (c) of s
126(1) are invalid.

16.  The plaintiff contends that these paragraphs combine to stop what was
said to be the free discussion at election times of the fitness of any of the
nominated candidates for office, of whether any of the candidates had policies
for which voters should vote and of whether there were merits in voting for a
candidate for whom the voter otherwise might not choose to vote at all.

17.  These submissions should be rejected.  On their face pars (b) and (c) of
s 126(1) are concerned with public advocacy concerning the marking of ballot
papers.  They are not concerned with the broader and, in a sense, anterior
questions of the fitness of nominated candidates for office and the like.

18.  It is further contended that pars (b) and (c) combine to stop free
discussion at election times of the wisdom of marking the ballot paper at all,
of voting informally as a deliberate act, and of annotating a ballot paper
with a "message" whether or not an otherwise effective vote is cast using the
ballot paper.  This "free discussion" is said to be an element of the freedom
of communication respecting political matters which is a restraint upon the
legislative power of the Parliament of the State of South Australia.  The
source of that restraint on legislative power is said to be found in either or
both of the Australian Constitution and the Constitution of the State of South
Australia.

19.  Before determining the substance of those submissions, it is necessary
first to consider further the construction of the impugned provisions of s
126.  The phrase "publicly advocate" in a provision which states the elements
of a criminal offence confirms the need for subjective intention or design
(56) in supporting or urging by argument and by recommending publicly that a
voter should act in either way identified in pars (b) and (c).

20.  The reference in par (c) of s 126(1) to "refrain from marking a ballot
paper" which has been issued to the voter for the purposes of voting is to be
read with par (b) of s 94(1).  A ballot paper will be informal if it has no
vote indicated on it.  To advocate publicly that a voter should refrain from
marking a ballot paper issued to the voter for the purpose of voting is to
urge a course which involves the casting of an informal vote.

21.  Paragraph (b) of s 126(1) also operates to protect the effective exercise
of the franchise.  A ballot paper which is marked otherwise than in the manner
prescribed in s 76 will not indicate in the manner required by the Act the
order of the preference of the voter for all candidates in the election.
Therefore, subject to the qualifications I have mentioned, par (b) of s 94(1)
will render the ballot paper informal.

22.  The phrase in par (b) of s 126(1) "mark a ballot paper otherwise than in
the manner prescribed" should be read in this way.  The annotation of a ballot
paper with a "message", where the ballot paper had been marked in the manner
prescribed in s 76(1), for a Legislative Council election, or s 76(2), for a
House of Assembly election, would not involve a commission of the mischief to
the prevention of which par (b) of s 126(1) is directed. Paragraph (b) is
concerned with the public advocacy of a course of action on the part of voters
which leads to their marking ballot papers in a way which does not indicate in
the manner required by s 76 the order of preference for all candidates,
thereby yielding ballot papers which are informal within the meaning of s 94.

23.  It is true that s 85 recognises practical realities by excepting the
leaving unmarked of a ballot paper from the duty otherwise imposed by the
section, with criminal sanction, upon every elector to observe the formalities
of voting by recording a vote at each election in a district for which the
elector is enrolled.  This exception is further buttressed by the requirement
of s 61(2) as to the inclusion on the ballot paper of a statement that the
elector is not legally obliged to mark the ballot paper.  Nevertheless, whilst
what otherwise might be classified as a system of compulsory voting contains
these qualifications, the overriding concern of the Act is to achieve
effective exercise of the franchise by the casting of votes which are not
informal.

24.  The effective exercise of the franchise is of the essence of the
operation of representative government (57).  Paragraphs (b) and (c) of s
126(1) operate in a fashion which is not inimical to, but rather in aid of,
the system of representative government in South Australia.  They operate to
further or to enhance the operation of that system by forbidding conduct with
a subjective intention or design and which encourages voters not to observe
the formalities required for effective exercise of the franchise.

25.  The Solicitor-General for South Australia conceded that certain
provisions of the Constitution Act 1934 (SA) ("the Constitution Act"),
considered together, contain an implication of representative government.  He
referred to ss 4, 11, 27, 32 and Pt 5 (ss 76-88).

26.  Section 4 of the Constitution Act provides that the Parliament of South
Australia shall be constituted by a Legislative Council and a House of
Assembly, s 11 that the Legislative Council shall consist of 22 members
elected by the inhabitants of the State legally qualified to vote, and s 27
that the House of Assembly shall consist of 47 members elected by those
inhabitants.  Section 32 deals with the division of the State into House of
Assembly electoral districts by orders published by the Electoral Districts
Boundaries Commission, a body incorporated by s 79.  This is in Pt 5 of the
Constitution Act.

27.  The passage of a Bill for the repeal, suspension or amendment of s 32 and
Pt 5 is controlled by the special entrenchment provisions of s 88.  This may
involve approval of the electors at a referendum.  Any repeal, suspension or
amendment of s 88 itself requires the approval of electors at a referendum.
Section 10A requires that a Bill for the abolition of either chamber of the
Parliament, for any alteration of the powers of the Legislative Council, for
the repeal or amendment of s 8 or s 41 (dealing with settlement of deadlocks
between the chambers) or for the repeal or amendment of s 10A itself, must be
submitted to the electors for approval and have been approved by a majority of
the persons voting before it is presented for the Royal Assent.  Finally, s 8
requires the concurrence of an absolute majority of the whole number of the
members of each chamber to the passage of the second and third readings of any
Bill by which an alteration is made in the constitution of the Legislative
Council or the House of Assembly.

28.  The Solicitor-General conceded that the Bill for the Act, containing the
provisions whose validity is attacked by the plaintiff, was not passed in the
manner and form provided in s 8 of the Constitution Act, that s 8 (in
conjunction with s 10A(2)(d) which entrenched s 8) was a "doubly entrenched"
requirement, effective in accordance with its terms, and that these manner and
form provisions extended to the abrogation or variation of the implication of
representative government.  Given these concessions, it is unnecessary for
present purposes to consider the constitutional source of that effective
entrenchment.

29.  The Solicitor-General confesses and avoids by further submitting that no
such restraint upon legislative power applied in respect of the sections whose
validity is attacked.

30.  It is unnecessary to determine whether these concessions by the South
Australian Solicitor-General as to the operation of the State Constitution
were correctly made.  It is also unnecessary to determine the nature and
extent of any implication to be drawn from the Australian Constitution and
applicable, by force of it, to the South Australian legislation in question
here.

31.  This is because, on either footing, the implication of freedom of
communication on political subjects would be derived from and operate in aid
of the system of representative government.  It would impose no restraint upon
the power of the South Australian Parliament to legislate as it has in
enacting pars (b) and (c) of s 126(1) of the Act.

32.  The question for consideration of the Full Court asks whether ss 76 and
126 of the Act are invalid for one or other of two reasons, the first of which
assumes, without identifying it, that there is a limit on the legislative
power of the Parliament of the State which is implied from the Constitution of
the Commonwealth.  The preferable course is to answer the question by stating
that neither s 76 nor s 126(1) of the Act is beyond the legislative power of
the Parliament of the State of South Australia.
1  ss 4(1), 59, 63.
2  s 92.
3  s 93.
4  s 94(3).
5  s 94(4).
6  s 94(5).
7  s 94(6).
8  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.
9  Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 235.
10  See McGinty v Western Australia (1996) 134 ALR 289 at 300-301, 311.
11  (1996) 134 ALR 400.
12  ss 268(1)(c), 270(2), (3) of the Commonwealth Electoral Act.
13  (1996) 134 ALR 400 at 405-406.
14  See ss 8, 10A and 88 of the Constitution Act.
15  ss 4, 11, 27, 32 and Pt 5 of the Constitution Act.
16  That is, a law not enacted in compliance with the entrenched manner and
form requirements contained in one or more of the "entrenching" sections:  see
fn 14.
17  The most important of these are ss 76(3), 94(3) and 94(6).
18  See Judd v McKeon (1926) 38 CLR 380 at 383, 385; Lubcke v Little (1970) VR
807; Faderson v Bridger (1971) 126 CLR 271; Krosch v Springell; Ex parte
Krosch (1974) Qd R 107; Kelly v Wolstenholme (1991) 4 ACSR 709 at 712.
19  (1996) 134 ALR 400.
20  (1996) 134 ALR 289.
21  See 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; Cunliffe v The Commonwealth (1994) 182 CLR 272.
22  See, eg, Cunliffe v The Commonwealth (1994) 182 CLR 272 at 360-364;
McGinty v Western Australia (1996) 134 ALR 289 at 305-307.
23  See Constitution Act 1934 (SA), ss 8, 10A and 88.
24  (1996) 134 ALR 400.
25  s 85(7).
26  s 85(8).
27  See for instance ss 76(3), 92, 93 and 94.
28  s 85(1).
29  s 85(2).
30  s 61(2).
31  (1996) 134 ALR 400.
32  Commonwealth Constitution, ss 7, 24.
33  Constitution Act, ss 11, 27.
34  (1992) 177 CLR 1.
35  (1992) 177 CLR 106.
36  (1996) 134 ALR 289.
37  (1994) 182 CLR 104 at 122.
38  Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104 at 121.
39  (1992) 177 CLR 1.
40  (1992) 177 CLR 106.
41  (1996) 134 ALR 400.
42  (1992) 177 CLR 106 at 142-143.
43  See Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 75-76 per Deane
and Toohey JJ; Australian Capital Television Pty Ltd v The Commonwealth (1992)
177 CLR 106 at 142 per Mason CJ, 168-169 per Deane and Toohey JJ, 215-217 per
Gaudron J; Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104 at 122
per Mason CJ, Toohey and Gaudron JJ; Stephens v West Australian Newspapers Ltd
(1994) 182 CLR 211 at 232 per Mason CJ, Toohey and Gaudron JJ, 257 per Deane
J.
44  (1992) 177 CLR 106 at 216.
45  Note that s 64 of the Australian Constitution provides, amongst other
things, that "(a)fter the first general election no Minister of State shall
hold office for a longer period than three months unless he is or becomes a
senator or a member of the House of Representatives."
46  (1971) 122 CLR 353 at 371.  See also New South Wales v The Commonwealth
(1975) 135 CLR 337 at 372 per Barwick CJ; China Ocean Shipping Co v South
Australia (1979) 145 CLR 172 at 182 per Barwick CJ; Theophanous v Herald and
Weekly Times Ltd (1994) 182 CLR 104 at 164 per Deane J.
47  Re Lee; Ex parte Harper (1986) 160 CLR 430 at 453 per Mason, Brennan and
Deane JJ.
48  Re Australian Education Union; Ex parte Victoria (1995) 69 ALJR 451 at
464; 128 ALR 609 at 629.  See also Queensland Electricity Commission v The
Commonwealth (1985) 159 CLR 192.
49  Re Australian Education Union; Ex parte Victoria (1995) 69 ALJR 451 at
464; 128 ALR 609 at 629.
50  Pursuant to s 85(1) of the Act, "it is the duty of every elector to record
his vote at each election in a district for which he is enrolled". However, s
85(2) provides that "(a)n elector who leaves the ballot paper unmarked but who
otherwise observes the formalities of voting is not in breach of the duty
imposed by subsection (1)".
51  By s 274(8) of the Commonwealth Act, a ballot paper is to be "set aside as
exhausted" if it expresses no preference for any candidate who has not been
excluded from the count during the process of distributing preferences.
52  Section 92(4) provides that, in a Legislative Council election:
" Where a voter marks a ballot paper by placing the number 1 in a voting
ticket square but also indicates preferences for individual candidates, the
following provisions apply:
(a) if the indication of preferences for individual candidates would, if it
stood alone, constitute a valid vote, that indication of preferences shall be
taken to be the vote of the voter and the mark in the voting ticket square
shall be disregarded;
(b) if the indication of preferences for individual candidates would not, if
it stood alone, constitute a valid vote, it shall be disregarded and the vote
of the voter shall be taken to have been expressed by the mark in the voting
ticket square."
53  Section 93(2) and (4) are as follows:
"(2) Where-
(a) a voter marks a ballot paper by placing the number 1 in the square
opposite the name of a particular candidate and indicates no further
preference;
and
(b) there is 1 voting ticket registered for the purposes of the election in
relation to that candidate,
the ballot paper shall be deemed to have been marked in accordance with that
voting ticket."
"(4) Where-
(a) a voter marks a ballot paper by placing the number 1 in the square
opposite the name of a particular candidate and proceeds to indicate further
preferences by consecutive numbers;
(b) there is 1 voting ticket registered for the purposes of the election in
relation to that candidate;
(c) the preferences indicated by the voter are consistent with that voting
ticket;
and
(d) the ballot paper would, apart from this subsection, be informal,
the ballot paper shall be deemed to have been marked in accordance with that
voting ticket."
54  Section 92(3) is to the same effect as s 93(3), the relevant portion of
which is set out in fn (55).
55  Section 93(3) relevantly provides that:
"the ballot paper shall be grouped with other ballot papers marked in the same
manner and-
(c) if the number of those ballot papers is an even number-half of them shall
be deemed to have been marked in accordance with one ticket and half in
accordance with the other;
or
(d) if the number of those ballot papers is not an even number-
(i) one of the ballot papers shall be deemed to have been marked in accordance
with whichever of the 2 tickets is determined by lot by the returning
officer;
and
(ii) half the remainder (if any) shall be deemed to have been marked in
accordance with one ticket and half in accordance with the other."
56  See O'Sullivan v Lunnon (1986) 163 CLR 545 at 549, 553, 556.
57  Langer v The Commonwealth of Australia (1996) 134 ALR 400 at 431.