ARGUMENT TO STRIKE OUT THE REPS ELECTION AS VOID AND TO HOLD IT AGAIN WITH OPTIONAL PREFERENTIAL - SIMPLIFIED EXPLANATION
ARGUMENT
TO STRIKE OUT THE REPS ELECTION AS VOID AND TO HOLD IT AGAIN WITH OPTIONAL
PREFERENTIAL - SIMPLIFIED EXPLANATION
(NOTE: 23/10/19 The Electoral Commission of Qld has fucked over all my
links to donations returns in my articles. They have changed all links. To make
it easier to view these broken links go to my page with the new links in a new
browser and scroll down to the relevant return in the article. Page link here: https://cynicismcentraltownsvilleaustralia.blogspot.com/2019/10/changed-ecq-donor-returns-links-page.html
)
The House of reps result for The Australain Federal Election 2019 can be challenged in the normal way under s181 of The CTH Electoral Act (The Act -Election wholly failed) in The High Court . IT MUST BE HELD AGAIN FOR THE HOUSE OF REPRESENTATIVES WITH OPTIONAL PREFERENTIAL .In Herbert , in the normal way also , going on what the candidate told me The KAP candidate Nannette Radeck was a teacher on leave from a religious school getting government funding , her primaries and prefs helped decide any outcome (Green v Bradbury) . If she wasn’t entitled to run under s 44 like in Sykes v Cleary http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1992/60.html then she is also not entitled to the 4% of the vote public funding money and there has to be a by election on top.
Simplified explanation of how the voting
system for the House that the Prime Minister comes from – The House of Representatives
, is unconstitutional compare these 2 cases : Langer v The CTH (1996) 186 CLR 302 at 317 , [1996] HCA 43 http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1996/43.html
, and , Brown v Tasmania [2017] HCA 43 http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2017/43.html
·
In Langer , the court held that CPV was
a legitimate aim because it upheld the integrity of the electoral system. Since
then the court made statements to the effect that there is a corollary implied
in the freedom of communication of freedom of association. I argue the
corollary of that – is the freedom to disassociate using s327(1) of the act and the ICCPR freedom of
expression and association. What that means is that the freedom to disassociate
is that we should not have to preference people we dont want to against our
will .
·
For the reps the act says you must
fill out all boxes but if you leave just one blank and it doesn't matter why,
they mark that for you in favour if the one you
left out but only if it was blank. If you leave 2 or more blank, its wholly
informal and doesn't get counted.
·
The
Federal 2016 results for Herbert (Based on Townsville) came down to 37 votes
and house majority was 1 https://results.aec.gov.au/20499/Website/HouseDivisionPage-20499-165.htm
The, 1995 Qld State seat Mundingburra (Based on Suburbs of Townsville)
results were that 635 people exhausted their preferences , then after
the remainder were distributed there was a 16 vote difference between the
parties under the then Optional Preferential system. The state election turned
on 16 votes
The Supreme Court of Qld decision in Tanti v Davies (No 3) [1995] QSC 298 (8 December 1995) http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QSC/1995/298.html?context=1;query=mundingburra;mask_path=au/cases/qld/QSC
Tanti v Electoral Commission of Queensland & Anor [1995] QSC 208 (25 August 1995) http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QSC/1995/208.html?context=1;query=mundingburra;mask_path=au/cases/qld/QSC
See Abc Election archive :http://www.abc.net.au/elections/archive/qld/results/1995/Mundingburra.htm .
Queensland Parliament Factsheet Queensland
By-Elections https://www.parliament.qld.gov.au/documents/explore/education/factsheets/Factsheet_6.1_ByElections.pdf https://en.wikipedia.org/wiki/1996_Mundingburra_state_by-election
Without a doubt, its literacy, technology and access to information that is causing the old order to shake just as it with the reformation and the printing press. These 2 elections alone invoke what was hinted at in Langer above [1996] HCA 43; (1996) 186 CLR 302 at p 333 per Toohey and Gaudron JJ at par [17] .
·
I
refer you to what I said in the section of my detailed argument below entitled
“The proportionality argument “ s16(e) There is an
obligation on electors to chose wisely. Citizens who take it seriously have an
interest in, and a duty to their society and the body politic (Mulholland
233 CLR at par [84] per Gummow ,
Kirby and Crennan JJ) to make sure
we don’t slide back into the white Australia Policy, AUSTRALIAN APARTHEID (ibid
[78] ). CPV deprives citizens and electors of the main ways to discharge
their constitutional obligation. This obligation falls on all republicans. Its is
as the court describes our “constitutional duty and obligation” Mulholland 233 CLR
2004 HCA 41 http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2004/41.html
·
Since Langer , my case , Coleman v
Power , the Unions v NSW cases , McCloy v NSW and Brown v Tasmania have
expanded a European style proportionality testing doctrine THAT WIPES ITS ARSE
WITH THE LANGER DECISION . And , now , a law must have a rational connection to
its purpose. Its gotta be proper reasons to be valid and cant be valid if the
burden – our votes being informal, can be achieved in another demonstrated way
. There is optional in other states. We did have it in Qld and it worked so
they got rid of it. They brought in optional above the line in the senate with
s269(1)(b) of the act. It cant rationally be argued that Langer is correct and
cant be reopened because you would have to argue CPV is for integrity whilst
arguing that senate optional is also for integrity whilst at the same time
being against- CATCH 22. CPV does not have a rational connection to its purpose
and is disproportionate . . So much of s 240 and s268 that says that optional
preferential leads to the conclusion that a vote is informal if a person
exhausts their vote- IS INVALID.
A
simplified explanation as to why the AEC tells you how to vote in the senate
election is also unconstitutional:
.A formal vote is 1 or more above the line , and
no-one else but you directs the prefs and they stop with you , or 6 or more
below. The AEC and parties were telling voters WHEN ASKED THAT IT WAS INFORMAL.
THIS IS A CRIME UNDER BOTH S325 – OFFICER INFLUENCING THE VOTE AND S329
MISLEADING VOTERS.
The relevant provisions of the CTH Electoral Act
state : https://www.legislation.gov.au/Details/C2019C00103/Download
268A Formal votes below the line
(1) A
ballot paper in a Senate election is not informal under paragraph 268(1)(b) if:
(b) if there are more
than 6 squares printed on the ballot paper below the line—the voter has
consecutively numbered any of those squares from 1 to 6 (whether or not the
voter has also included one or more higher numbers in those squares).
269 Formal votes above the line
(1) A ballot paper in a Senate election is not informal under
paragraph 268(1)(b) if:
(a) the voter has marked the ballot paper in
accordance with subsection 239(2); or
(b) the voter has marked the number 1, or the number 1 and one
or more higher numbers, in squares printed on the ballot paper above the line.
(1A) For the purposes of this Act:
(a) a voter who, in a square printed on the ballot paper above
the line, marks only a single tick or cross is taken as having written the
number 1 in the square; and
(b) the following numbers written in a square printed on the
ballot paper above the line are to be disregarded:
(i) numbers that are repeated and any higher numbers;
(ii) if a number is missed—any numbers that are higher than
the missing number.
Note: Paragraph (1A)(b) applies both for the purposes of
determining whether a ballot paper is formal, and for the purposes of
determining which numbers marked on a ballot paper are counted in the election.
Example: A ballot paper has squares above the line that are
numbered 1, 1, 2 and 3. The vote is informal because, by disregarding the
numbers 1 and upwards under subparagraph (1A)(b)(i), no squares have been
numbered.
A second ballot paper has squares above the line
that are numbered consecutively from 1 to 9 and then 11, 12, 13 and 14. The
vote is formal under paragraph (1)(b). However, only the squares numbered from
1 to 9 are counted for the purposes of sections 273 and 273A because the
numbers 11 and upwards are disregarded under subparagraph (b)(ii) of this
subsection.
This was upheld as formal by the High Court BEFORE
the last election and greens knew it and lied just the same. It in pars [33]
and [34] of this full bench decision against the godbotherer Day Day v
Australian Electoral Officer for the State of South Australia; Madden v
Australian Electoral Officer for the State of Tasmania [2016] HCA 20 http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2016/20.html
THE CASE FOR REOPENING
AND OVERRULLING OF LANGER v THE CTH
(1) As
to authority on reopening High Court cases I refer to the case of Alqudsi v R [2016] HCA
24 and the dissenting judgement of French CJ at pars [65]-[67]. (HANKS
Australian Constitutional Law Materials and Commentary 10th Ed.
Meagher et al , Lexis nexus Butterworths , Australia , Printed 2016 p 265-266 ,
s3.2.50 , 3.2.51C)
(2)
The court will have to decide the lawfulness of the
system before the election . Ha
v New South Wales [1997] HCA 34; (1997) 189 CLR 465; (1997) 146 ALR 355; (1997)
71 ALJR 1080 (5 August 1997)
The majority said in
relation to hundreds of millions unlawfully collected by the state that it must be returned immediately .“This
Court has no power to overrule cases prospectively. A hallmark of the judicial
process has long been the making of binding declarations of rights and
obligations arising from the operation of the law upon past events or conduct.
The adjudication of existing rights and obligations as distinct from the
creation of rights and obligations distinguishes the judicial power from
non-judicial power. Prospective overruling is thus inconsistent with judicial
power on the simple ground that the new regime that would be ushered in when
the overruling took effect would alter existing rights and obligations. If an earlier case is erroneous and it
is necessary to overrule it, it would be a perversion of judicial power to
maintain in force that which is acknowledged not to be the law.”
(3)
Compulsory voting is not in issue.
It is both valid and desirable.
(4)
The impugned provisions in Langer either no longer exist,
or do not exist in that form .It is not illegal now , to state what the terms of the provisions mean
and to advocate voting contrary to them , as long as you do not intentionally
mislead as to the consequences of it in s329
Misleading or deceptive publications etc. (1) A person shall not, during
the relevant period in relation to an election under this Act, print, publish
or distribute, or cause, permit or authorize to be printed, published or
distributed, any matter or thing that is likely to mislead or deceive an
elector in relation to the casting of a vote.
(5) Though
s327(1) had been inserted as it now stands,
in 1983 , at no time was it argued that that this may have affected the
outcome .
(6) The
Electoral Act refers to voters as “Electors” and candidates are referred to as
being “duly elected” (Langer, see contra - Dawson J at 332-333 who seemed confused about the arguments
presented )
(7) Div.
274 of The CTH Criminal Code Act , “Torture” , as amended in 2010 now applies
to the interpretation of s327(1) of the CTH Electoral Act.
(8) There
has been a consistent long line of subsequent rulings in relation to the
constitutional tests to be applied since Langer that are at odds with that
previous ruling suc as MCCloy v NSW , Monis, and Brown v Tasmania .
(9) Since
the 2004 ruling in Coleman , the court has developed a European style
“proportionality testing utility” for the second limb of the Lange test that
the relevant impugned provisions do not satisfy insofar as they require
compulsory preferential voting for the House of Representatives .
(10)
The decision in Langer smells way past ripe,
and is therefore ripe for reopening and overruling.
IS THE FREEDOM OF
COMMUNICATION AND ITS CORROLLARY THE FREEDOM OF ASSOCIATION AND TO
DISSASSOCIATE BURDENED?
“Lange requires that a legislative measure
which effects any burden on the freedom be assessed not only for its purpose,
but for its operation and effect[84]. The ultimate question, whether a
legislative measure can be justified as reasonably appropriate and adapted, or
proportionate, cannot be answered without determining its operation and effect.
The enquiry as to its effect on the freedom generally is necessarily one about
its operation and practical
effect” Brown v Tasmania [2017] HCA 43 KIEFEL
CJ, BELL and KEANE JJ at Par [50] , GAGELER J at par [180] –[181] , Nettle J at
par [237] and [259]
(1)
Q.
What do the provisions effectively do in
their practical effect ? This is stated
by Brennan CJ and the court in their erroneous reasoning in Langer (1996) 186
CLR 302 at 317 , [1996] HCA 43 at pars
[10]-[11] and McHugh J at p338“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.” For a house of reps election , electors are
prevented from exhausting their
vote even if they are diametrically apposed to the candidates, and, in times of hung parliaments where the fate of the government may rise and
fall on less than 50 votes and such a voter “strike” or exhaustion may at the
local level , in one small area change the course of the country as much as a
landslide. EVERYTHING IS LOCAL
Green v Bradbury [2011] FCA 71 at par [53] ..........“The facts set out in a petition must be such, if true, as would indicate that there is a real chance that the result of the election would be different if the allegedly illegal practice had not occurred (Kelly v Campbell [2002] FCA 1125 at [20])
· Deane and Toohey JJ Nationwide News (1992) 177 CLR 1 at 72
“The people of the Commonwealth would be unable responsibly to discharge and exercise the powers of governmental control which the Constitution reserves to them if each person was an island, unable to communicate with any other person. The actual discharge of the very function of voting in an election or referendum involves communication. An ability to vote intelligently can exist only if the identity of the candidates for election or the content of a proposed law submitted for the decision of the people at a referendum can be communicated to the voter. 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.”
(2)
This is no “little burden” Hayne J Monis
at [120] .
(3) The
Court has just handed down the case of Clubb v Edwards , Preston v Avery [2019] HCA 11
10 April 2019 at pars
[51] [82] [98] [99] [101] [197], THE MAJORITY AGREED WITH THE OLD
DISSENTERS THAT THE PEOPLE ARE SOVEREIGN !
Compulsory preferential voting (not
compulsory voting) offends against the dignity of voters by forcing them to
swallow their pride if they want their votes to be declared formal and “recant”
they’re political beliefs that are consistent with human rights and democracy
in favour of those that arnt. This is
not an abstract question, there is a matter as I don’t want to vote they want
me to [135][136] . There are examples where , with the former OPV in Qld votes
came down to 2 digits and caused another by-election leading to a change in
government from Townsville and came down to double digits for the seat of
Herbert based on Townsville when the parliament was hung . CPV holds the
sovereign people “captive to the 2 party system par [98] [99] http://eresources.hcourt.gov.au/downloadPdf/2019/HCA/11
(4)
Electors
are prevented by the impugned provisions from voting “against” candidates by
leaving more than 1 square on the reps ballot blank or their vote is informal.
Rendering their desired vote “ineffective” if they wish to express only one or
2 preferences to the exclusion of others.
(5)
For
the senate , the commission informing people that they must fill out 6 boxes
above and12 below when formality rests on one above or 6 below artificially and
unduly influences the outcome, which, if
the uneducated voter were informed of they may take advantage of.
(6)
As
a historical fact, Australia had a republic referendum in 1999. It was rejected
by a narrow majority. Its a notorious fact that it was because an unacceptable
model was presented as a yes or no fait accomplii . This is coming around again.
(7)
Compulsory
preferential voting means that voters cant discriminate between candidates with
competing models let alone between republicans and royalists arguing for the
status quo. Compulsory preferential voting stifles s128 of the constitution.
(8)
The
effective burden which isnt slight is that for the purposes of s7,24 and s128
of the constitution, electors are denied by the terms operation and effect of
s240 and 268 at elections leading to
referenda the right in s327(1) to vote against candidates groups or parties. It
was Nationwide News and the decision of Deane and Toohey JJ that informed
Coleman v Power arguments in the court of appeal and high court. Communications
were struck down whether or not they were true or in the public interest. The
same can be said of s240 and s268 , it forces you to vote for people you want,
as well as for those you are against with no way out but an informal vote in
the secrecy of the booth after getting ones name marked off as having voted. The
only way, in all practicality, to vote against your enemies if you are in a
minority, is to vote against your preferred candidate by denying the preference
flow to the enemy.
THE PROPORTIONALITY
ARGUMENT
(1) Since
the 2004 ruling in Coleman, the court has developed a European style
“proportionality testing utility” for the second limb of the Lange test that the
relevant impugned provisions do not satisfy insofar as they require compulsory
preferential voting for the House of Representatives. This case should be
decided using the tests set down in Brown v Tasmania at pars [5] , [88] ,
[90],[94] , [102]-[104] Nettle J at [295]
and [298] . Hayne J Monis at
[120]
(2) The
question is, do the impugned provisions go too far as being insofar as they
would require compulsory preferential voting for House of Representative
Elections?
(3) There
is a “bare assertion” from Langer (at339) per McHugh J “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.” The court and its justices have been critical of claiming legitimate
aims from such bare assertions such as “integrity” (Mulholland at par [235] of
the system or act set up by legislation. It has a rhetorical ring to it . It allows the dominant majorities to “hide behind a thin veneer of false repute”Deane
and Toohey JJ , Nationwide New [1992] HCA 46 at par [25]. The
true purpose of the law is to maintain the 2 party system , to give the
fictional impression, that a majority or
minority government declared elected , via individual candidates belonging to
it being declared elected , is legitimate on a 2 party preferred basis because
voters are forced to vote via compulsory preferences, for people they didn’t
want TO RECOGNISE OR SPEAK THE NAME OF IN THE BOXES anyway.
(4) Are
there available less drastic means by which the aims can be achieved?
(5) Applying
the courts decision in Day v Australian Electoral Officer for
the State of South Australia; Madden v Australian Electoral Officer for the
State of Tasmania [2016] HCA 20 at par
[23] , the fact that we have optional preferential voting above and below the
line for the senate , where a voter/elector can mark either 1 box , or 6 below
and MAY continue to mark in order of preference, and that The High Court upheld it, shows that
optional preferential voting is not prohibited by the constitution . It does
not in itself harm democracy and in fact enhances it. It is not undermined as
was stated by the court in Langer.
(6) By
virtue of s 200DJ(1) and (3) , s200DK and s206 of The Electoral Act , an
elector is marked off as receiving the ballot once identified and goes to cast
that ballot in private and in the secrecy of the booth. That vote is recorded
as having been cast and no other elector can use it No commission staff may disclose
information identifying an electors vote or about how the person voted. No
prosecution if any could be instigated for informal voting. The practical
effect of this is that is not illegal (Brown v Tasmania) to cast an informal ballot into the box to deny
it “falling into the wrong hands’ through being forced to mark ballots against
the electors wishes .It complies with s245(1) where it states “(1) It shall be
the duty of every elector to vote at each election” . The elector has voted.
But for the terms of the compulsory preferential provisions, an elector
could lawfully be taken to have “voted against”
all candidates. This is supposed to be protected by s327(1).
(7) Optional
Preferential voting is consistent with the ICCPR articles 19 -freedom of
Opinion and Expression (see Coleman v Australia) and 22 freedom of association
which has as its corollary the freedom to disassociate. OPV does not offend
against the ICCPR’s exceptions and limitations of rights.
(8)
In
Roach , Gummow , Kirby and Crennan JJ said at [88] “Paragraph (a) of s 93(8) of the Electoral Act disentitles those who
are incapable of understanding the nature and significance of enrolment and
voting because they are of unsound mind. That provision plainly is valid. It
limits the exercise of the franchise, but does so for an end apt to protect the
integrity of the electoral process. That end, plainly enough, is consistent and
compatible with the maintenance of the system of representative government.”
In effect , if a person who isn’t religious , believed that Hitler used the
Vatican ratlines and escaped to mars without the help of the war criminal
Werner Von Braun, and came back after drinking of the cup of eternal life, and
plastic surgery, to assume the identity of the Chief Justice of The High Court
, s116 wouldn’t apply cos the person isn’t religious and they could arguably be
denied the franchise. However, if a candidate , group or party had as their
hero Adolf Hitler, and had as their
policy that war criminals should be assisted by the Vatican , and the state,
using public funds , to escape to mars
to have plastic surgery in order to assume the identity of the CJ , and there
were 5 of them on the ballot paper, who had different views about how they
should get there, we arnt allowed to vote against them . Simply because the law
and a previous case said we have a Hobsons Choice between them , i.e. take it
or leave it , whether we liked it or not. THAT CANT LOGICALLY BE RIGHT !!!!
(9) The CTH must be
held to this part of their argument in Mulholland [2004] 220 CLR 181 at
p191-2 par [18] HCA 41 par [20] and
paraphrased by Gleeson CJ “Attorney-General
of the Commonwealth intervening, accept that the choice required by the Constitution
is a true choice with "an opportunity to gain an appreciation of the
available alternatives"[13]. In the course of argument, examples were
given of forms of ballot paper prescribed for use at elections which might not
conform to that fundamental requirement. A ballot paper, for example, that had
printed on it only one name, being that of the government candidate, requiring
the name of any alternative candidate to be written in (a form not unknown in
the past in some places), might so distort the process of choice as to fail to
satisfy the test.” And McHugh J at p217 par [86] HCA41 at par [88] “No
doubt a point could be reached where the electoral system is so discriminatory
that the requirements of ss 7
and 24
are contravened.”
- It is a fact of life in Australia, that so far , for the House of reps elections , save for exceptions where other parties or independents may win scattered seats around the country , governments , whether majority or minority, cant be formed without the help of The Australian Labor Party , or the Coalition comprising the Liberal and National Parties of Australia at the federal level . The court has made, and will continue to make decisions in the political donations cases. Though limited in the federal sphere by a large disclosure threshold the Australian Electoral Commission has its own donations disclosure website which anyone, anywhere in the world can access on the internet. In Qld there is an effective online real time disclosure website. Anyone can gain real-time evidence that very many, less than altruistic donors, –donate and play both side of the street. As the court said in McCloy , there are felt concerns that the perception of corruption is evident. The High Court further held in McCloy v NSW [2015] HCA 34 (7 October 2015) there must be equality of access to government They upheld the NSW ban on developer donations . They were against the Americanisation of donations. It was said at par [93] “...the public interest in removing the risk and perception of corruption is evident. These are provisions which support and enhance equality of access to government, and the system of representative government which the freedom protects. The restriction on the freedom is more than balanced by the benefits sought to be achieved.” http://www.austlii.edu.au/au/cases/cth/HCA/2015/34.html
(10)
To many desirous of change it can seem that the
terms, operation and effect of CPV is to make the choice between the 2 majors,
a choice between factions of the same party and therefore the political
realities discussed in Day may lead to the conclusion that the choice offered
is between 1 or 2 government candidates, and it falls to consider what numbers
are placed against the remainder, which flows logically back to the majors
depending on what order the majors are put by the voter..
(11)
As for that remainder , using historical facts and
self description by candidates , parties and groups ,There was an Australian Nazi Party seeking election There
are other self described Nazis , fascists and associated far right candidates ,
groups and parties . The former federal labor leader Latham joined One Nation;
the former labor Mp Graham Campbell restarted the Old Australia First Party
which is now a well known far right grouping whether or not registered. In a
well known recent federal by-election caused by s44, there were a number of far
right people (Longman) , on the same ballot . Even if you could leave one
square blank, does it mean that the voter, who may have been jewish, preferred the nazi over the fascist ? Its
goes without saying there may have been, like churches, a synagogue in the
electorate or close by.
(12)
In Sykes v Cleary there were a number of victims of
s44 on the same ballot. The court has recently had to deal with a plethora of
such cases, hidden by well resourced parties with access to professional
lawyers and senior council, and QC’s as members who must have known. There is
now a declaration form upon which a person can make the lie official about
eligibility to be nominated, which falls to be considered AFTER AN ELECTION. These are felt concerns.
(13)
Speaking of felt concerns, what if, as a result of a
royal commission, a high ranking (within their own community) religious
official was before a court on trial, with no finding of guilt, at the time of
nominations and Election Day, and the penalty would invoke s44. And the voters were
not only atheists, but had knowledge of this?
(14)
There will come a time when they are all on the ballot.
BUT WAIT, THERE’S MORE!
(15)
Referring to the court’s decision again
in Day at Par [23] Compulsory preferential voting “offends against the general
principles of justice”
(16)
The court has handed down its own
decisions as to the validity of organised crime consorting laws. Ask these
questions ;
(a) if
one may not legally consort with persons of that nature, and one did so within
the 6 meter rule (sanctity of the voting place) would the authorities seek a
determination that subsequent amendments of the CTH Criminal Code, CTH Crimes Act,
or of the laws of the states and Territories override, and are complimentary to
the Electoral Act and such persons offending could be prosecuted? ;and
(b) If
one is not so inclined to consort with such persons, then why should the
constitution and the Electoral act be interpreted so as to compel
voters/electors within the meaning of the act to express a preference for them
against their will with the punishment being of declaring the ballot paper
being informal?
(c) An
elector may be a whistle blower against all sides.
(d) An
elector may be a victim of crime or the above organised crime and have AVO”s
against one or more people who may be on the same ballot or they may be before
the court . It may like proceedings in well known circumstances, invoke
memories and severe psychological stress and harm to even see the names on
ballot let alone be forced by law to recognise and express a preference between
them . This can apply to all of the above circumstances.
(e) There
is an obligation on electors to chose wisely. Citizens who take it seriously
have an interest in, and a duty to their society and the body politic (Mulholland
233 CLR at par [84] per Gummow ,
Kirby and Crennan JJ) to make sure
we don’t slide back into the white Australia Policy, AUSTRALIAN APARTHIED (ibid
[78] ). CPV deprives citizens and electors of the main ways to discharge
their constitutional obligation. This is a not slight or little obligation or
burden.
(f) The
insertion of and amendments to Div 274
of the CTH Criminal Code s274.1(1) and
s274.2(4) “Torture” , Implemented the ICCPR and International Convention
Against Torture and Other Cruel , Inhuman or Degrading Treatment or Punishment
into The CTH Law. The Federal Governments own website invokes the international
conventions when it comes to division 274 of the CTH Criminal Code https://www.ag.gov.au/RightsAndProtections/HumanRights/Human-rights-scrutiny/PublicSectorGuidanceSheets/Pages/Prohibitionontortureandcruelinhumanordegradingtreatmentorpunishment.aspx#6which
(g) The
punishment/detriment is also discussed in the s327(1) argument discussed below .
(h) But for
the CPV terms and operation of s240 and 268 , that could constitute 274.2(a), “severe
mental pain or suffering on a person under (b)(ii) , (b)(iii), (b)(iv) ,(c)
, and s274.2(2) . s274.2(4) States (4) Subsections (1) and (2) do not apply to
conduct arising only from, inherent in or incidental to lawful sanctions that
are not inconsistent with the Articles of the International Covenant on Civil
and Political Rights (a copy of the English text of which is set out in
Schedule 2 to the Australian Human
Rights Commission Act 1986). Article 18(1). Freedom of thought.
Article 19, Freedom of expression and the right to manifest it. Article 22(1)
Freedom of association, which has as its corollary the freedom to disassociate.
Article 25(b) free expression of the will of the electors. Article 26 Freedom
from discrimination. 274.4 says No defence of exceptional circumstances or
superior orders
“It is not a defence in
a proceeding for an offence under this Division that:
(a) the conduct
constituting the offence was done out of necessity
arising from the existence of a state of war, a threat of war, internal political instability,
a public emergency or any other
exceptional circumstance; or
(b) in engaging in the
conduct constituting the offence the accused acted under orders of a superior
officer or public authority; but the
circumstances referred to in paragraphs (a) and (b) may, if the accused is
convicted of the offence, be taken into account in determining the proper
sentence.”
THE S327(1) ARGUMENT
327 Interference with political liberty etc.
(1)
A
person shall not hinder or interfere with the free exercise or performance, by
any other person, of any political right or duty that is relevant to an
election under this Act.
Penalty: Imprisonment for 6 months
or 10 penalty units, or both.
Its
The Constitution that defines what Electoral or political matter is. The Act
seeks to define and confine Electoral “matter” by s4AA of the act and by s322 to
limit it to the period between the writs and
the end of polling . Matters concerning referendums are not defined. But
for the purposes of s327(1) relating to voting supporting and opposing is
electoral matter S4AA is open to
challenge. .
I
refer again to what Nettle J said in Brown v Tasmania at [295] and [298]
“As the
plurality reasoned in McCloy,
whether such a risk is "undue" is to be assessed by weighing the
consequent effect upon the implied freedom of political communication against
the apparent public importance of the purpose sought to be achieved by the
provisions” see
also. Hayne J in Monis at [120]
EVERYTHING IS LOCAL
Green v Bradbury [2011] FCA 71 at par [53] ..........“The facts set out in a petition must be such, if true, as would indicate that there is a real chance that the result of the election would be different if the allegedly illegal practice had not occurred (Kelly v Campbell [2002] FCA 1125 at [20])
Contrary to what the court said in Day at [2016] HCA 20 applying McKinlay par [24] the provisions of the act in this case DO discriminate against people who are not, and do not approve of candidates, parties or groups. When it comes down to the end , The count and recount, The ‘felt concerns” of a handful of votes matter .Where a handful of preferences determine a matter, whether or not it was the wish of the voter , this not only influences, but distorts (Roach at p 188-9 par [49]) the course the count and election but history , and the constitutional meaning given by “freely chosen” from time to time. And thus the exercises that must be undertaken when engaging in the legal and verbal gymnastics required to deny the right of full optional preferential voting –WITHOUT INJURY TO THE PERSONS ATTEMPTING IT .
“Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law”( extract from the Preamble of The Universal Declaration of Human Rights)
“Suppression
of such criticism of government and government officials removes an important
safeguard of the legitimate claims of individuals to live peacefully and with
dignity in an ordered and democratic society. Indeed, if that suppression be
institutionalized, it constitutes a threat to the very existence of such a
society in that it reduces the possibility of peaceful change and removes an
essential restraint upon excess or misuse of governmental power”
Nationwide News(1992) 177 CLR 1 at par [25] Deane and Toohey JJ
In Mulholland CLR 220 par [96] HCA 41 at [98] McHugh J said :
“The primary purpose of a ballot-paper, however, is to record the voter's preferences among the candidates standing for election to Parliament in the voter's electorate. It is part of a process for the casting, counting and recording of votes to elect Parliamentary representatives which is the end to which the Constitution's implication of freedom of communication is directed. It does not convey information, ideas, opinions and arguments that may enable other voters to make an informed judgment as to how they should vote. Nor does it seek to persuade candidates in the election to modify or adjust their policies. The delivery of a ballot-paper to an elector is primarily a communication by the Commission to that elector that informs the elector what candidates are standing for election and what parties, if any, they represent. It also informs the elector of the manner in which an elector may record a valid vote. In so far as the elector makes a communication by marking the ballot-paper and lodging it in the ballot-box, the elector's primary purpose is to inform the Commission - the body charged with conducting the election - which candidate or candidates the elector wishes to have elected.”
Balderdash ! Because of the last republic vote the question and process is going to be different . People hand out HTV’s , people scrutineer the vote . Parties lose seats because of the ballot and next time round or in a following local, state or federal election or by-election they may get hammered. If the federal system was optional preferential, everyone knew it, the “joke’ as it used to be called in Qld , The system , would indeed be undermined cos someone would shout the punch line before the corrupt fascist/nazi gypsie joker. What parties call “polling”. And if there are a larger group of people in the electorate than the swinging vote who make demands, that may be that!
· Deane and Toohey JJNationwide News (1992) 177 CLR 1 at 72
“The people of the Commonwealth would be unable responsibly to discharge and exercise the powers of governmental control which the Constitution reserves to them if each person was an island, unable to communicate with any other person. The actual discharge of the very function of voting in an election or referendum involves communication. An ability to vote intelligently can exist only if the identity of the candidates for election or the content of a proposed law submitted for the decision of the people at a referendum can be communicated to the voter. 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.”
Langer [1996] HCA 43; (1996) 186 CLR 302 at p 333 per Toohey and Gaudron JJ at par [17]
“[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.”
The Federal 2016 results for Herbert (Based on Townsville) came down to 37 votes and house majority was 1 https://results.aec.gov.au/20499/Website/HouseDivisionPage-20499-165.htm
The, 1995 Qld State seat Mundingburra (Based on Suburbs of Townsville) results were that 635 people exhausted their preferences , then after the remainder were distributed there was a 16 vote difference between the parties under the then Optional Preferential system. The state election turned on 16 votes
The Supreme Court of Qld decision in Tanti v Davies (No 3) [1995] QSC 298 (8 December 1995) http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QSC/1995/298.html?context=1;query=mundingburra;mask_path=au/cases/qld/QSC
Tanti v Electoral Commission of Queensland & Anor [1995] QSC 208 (25 August 1995) http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QSC/1995/208.html?context=1;query=mundingburra;mask_path=au/cases/qld/QSC
See Abc Election archive :http://www.abc.net.au/elections/archive/qld/results/1995/Mundingburra.htm .
Queensland Parliament Factsheet Queensland
By-Elections https://www.parliament.qld.gov.au/documents/explore/education/factsheets/Factsheet_6.1_ByElections.pdf
https://en.wikipedia.org/wiki/1996_Mundingburra_state_by-election
Without a doubt, its literacy, technology and access to information that is causing the old order to shake just as it with the reformation and the printing press. These 2 elections alone invoke what was hinted at in Langer above [1996] HCA 43; (1996) 186 CLR 302 at p 333 per Toohey and Gaudron JJ at par [17] .
In Brown v Tasmania [2017] HCA 43 par [90] The Court applying previous settled authority said unless you can point to a pre existing statutory right the freedom will only be a restriction on legislative power which burdens communication. Its settled that s327(1) protects the statutory right to vote AGAINST CANDIDATES. Even without s327(1) , the subsequent cases on proportionality mean the decision of the court in Langer is erroneous . However. The federal Court in Both Green v Bradbury and Hudson v Entsch [2005] FCA 460 at [34]-[56]
Applying Hudson v Entsch [2005] FCA 460 at [34]-[56]
In
Hudson the court explained that s327(1)
was used to interpret other provisions. However, here we are concerned
with the application of s327(1) for the purposes of informing the arguments
about the disproportionate nature of enforced CPV for reps elections .
He went on to be wilfully blind of the words “free exercise or performance” and ‘any’ when used in conjunction with “political right or duty” [47] before holding [49] “In my view, a political right, for the purposes of subs 327(1) is the right to vote (including the allocation of preferences), the right to stand for election and the right to support or oppose a candidate, group of candidates or party. It is not necessary to determine whether the matter referred to in pars 326(1)(e) and 326(2)(e) involves political rights for the purposes of subs 327(1).”
Keeping in mind that the AEC declaring a vote or ballot informal AGAINST THE ELECTORS WISHES is capable of being described as being a detriment for purposes of the Torture law and s327(1) he said the following aswell [56] In my view, the approach urged by the Electoral Commission is unduly narrow. If applied to s 326, it would deprive pars 326(1)(c) and 326(2)(c) of virtually any effect. There is very little point in trying to change a person’s opinion by the use of force or detriment. Opinions, of themselves, are of little effect. It is the manifestation of such opinions which may affect others. In protecting a person’s right to stand for office or to vote freely, s 326 protects rights to act. There is no reason to doubt that in protecting the right to support or oppose a candidate, the subsection also protects the right to act. If, as I consider, subs 327(1) seeks to protect, at least, the same aspects of the electoral process as does s 326, it follows that the sub-section proscribes the use of violence, detriment or threats thereof, intended to affect a person’s right to manifest his or her views concerning a candidate, group or party.”
See
also
Green v Bradbury[2011]
FCA 71
“[48]
Paragraph 31 of the Petition asserts that, by reason of the matters alleged in
paragraphs 21, 26, 27 and 28, Mr Bradbury has committed or attempted to commit
undue influence. Only paragraph 21 asserts a contravention of s 327. Paragraphs
26, 27 and 28 variously allege breaches of s 326 and s 328 of the Electoral Act
and s 48 and s 49
of the Constitution.
Since undue influence is defined as meaning a contravention of s 327, the other
paragraphs appear to have no relevance to the allegation of undue influence in
paragraph 31.
[49]Section
327(1) prohibits a person from hindering or interfering with the free
exercise or performance, by any other person, of any political right or
duty that is relevant to an election under the Act. The relevant right or
duty is said to be the right to vote and the duty to do so as prescribed by the
Electoral Act. The right to vote is protected by s 327 (Hudson v Entsch [2005] FCA 460; 216
ALR 188 at [49]).
The duty to vote is also covered by s 327(1).”
[53] ...... The facts set out in a
petition must be such, if true, as would indicate that there is a real chance
that the result of the election would be different if the allegedly illegal
practice had not occurred (Kelly v
Campbell [2002] FCA 1125 at [20]).”
What
also informs s327(1) is the obligation on electors to chose wisely. Citizens
who take it seriously have an interest in, and a duty to their society and the
body politic (Mulholland 233 CLR at par [84] per Gummow , Kirby and Crennan
JJ) to make sure we don’t slide
back into the white Australia Policy, AUSTRALIAN APARTHIED (ibid [78] )
Schedule 1 , form (e) That the Schedule and form Senate ballot instructions for above and below the line, is invalid to the extent that for:
(a) The required instructions for printing the ballot for above the line do not say that you must mark at least one box , and you may continue to mark many remaining as you like in order of your preference ;and
(b) The required instructions for printing the ballot for below the line do not say that you must if choosing to vote below, number at least 6 but may continue to mark as many remaining as you like in order of your preference
Schedule 1 form (f) house of representatives ballot instructions is invalid to the extent that The required instructions for printing the ballot for above the line do not say that you must mark at least one box , and you may continue to mark many remaining as you like in order of your preference
It
therefore, is an AEC Officer that causes
the instructions/directions to be printed on the ballot papers for the senate
under s209(5) and 209(6)(c) and the reps
under s209(7)(b)
It is the right to vote against candidates, groups and parties
in s327 (1) in conjunction with the right to have a ballot for the senate
declared formal in s268(1)(b) and s269(1)(b) (Mulholland 200 CLR p 245 par
[182] per Gummow J and Hayne J applying
McClure) that is the
exception pointed out in Lange , Levy and Brown v Tasmania. The right is
positive. But for the invalid requirements of s240, s268, schedule 1 form (e)
and (f) there would be a positive right to VOTE AGAINST people in a House of
reps election. It is not shown that the burden on the freedom of communication,
association and the corollary the right to disassociate is necessary to the achievement of any legitimate aim ,
because its contradicted by the senate voting system which shows that optional
preferential is legitimate and such was
argued by the State in Day.
The AEC has legal
requirements (Deane and Toohey JJ in
Nationwide at 72 above and Mulholland at 220 CLR p 211 par [73] ) not to
influence the vote by refusing to have printed on the ballot and verbally
advise electors 200DJ , s200DK
that they may have a lawful choice of voting one or more as they see fit above
the line or 6 or more as they see fit below s268(1)(b) and s269(1)(b) (Day v
AEC).
This is because, in the absence of the then s328A in Langer as it then was it falls to be considered
whether the AEC is liable to be punished under ss 324-325A and the new s 329(1)
for misleading them its full preferential , when , if they had a choice and
exercised it they may have acted differently and therefore changed the outcome
of the numbers in the count , whether or not affecting the election outcome,
because the numbers are the outcome.
The new s329
“Misleading or deceptive publications etc.
(1) A person shall not, during the relevant period in relation
to an election under this Act, print, publish or distribute, or cause, permit
or authorize to be printed, published or distributed, any matter or thing that
is likely to mislead or deceive an elector in relation to the casting of a
vote.”
Cases (each case link contains cases referred to)
Langer v The CTH (1996) 186 CLR 302 at 317 , [1996] HCA 43 http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1996/43.html
Nationwide News v Wills (1992) 177 CLR 1 http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1992/46.html
Alqudsi v R [2016] HCA 24 http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2016/24.html
Ha v New South Wales [1997] HCA 34; (1997) 189 CLR
465; (1997) 146 ALR 355; (1997) 71 ALJR 1080 (5 August 1997) http://www.austlii.edu.au/au/cases/cth/HCA/1997/34.html
Brown v Tasmania [2017] HCA 43 http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2017/43.html
Monis v R
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2013/4.html
Green
v Bradbury [2011] FCA 71 http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2011/71.html?context=1;query=green%20v%20bradbury;mask_path=au/cases/cth/FCA
Hudson v Entsch [2005] FCA 460 http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2005/460.html?context=1;query=Entsch%20;mask_path=au/cases/cth/FCA
Clubb v Edwards ,
Preston v Avery [2019] HCA 11 http://eresources.hcourt.gov.au/downloadPdf/2019/HCA/11
Day v Australian Electoral Officer for the State of South
Australia; Madden v Australian Electoral Officer for the State of Tasmania
[2016] HCA 20 http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2016/20.html
Roach v Electoral Commissioner [2007] HCA 43
McCloy
v NSW [2015] HCA 34 http://www.austlii.edu.au/au/cases/cth/HCA/2015/34.html
Mulholland 233
CLR 2004
HCA 41 http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2004/41.html
Tanti v Davies (No 3) [1995] QSC 298 (8 December
1995) http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QSC/1995/298.html?context=1;query=mundingburra;mask_path=au/cases/qld/QSC
Tanti v Electoral Commission of Queensland & Anor [1995] QSC 208 (25 August 1995) http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QSC/1995/208.html?context=1;query=mundingburra;mask_path=au/cases/qld/QSC
See Abc Election archive :http://www.abc.net.au/elections/archive/qld/results/1995/Mundingburra.htm .
Queensland
Parliament Factsheet Queensland By-Elections https://www.parliament.qld.gov.au/documents/explore/education/factsheets/Factsheet_6.1_ByElections.pdf https://en.wikipedia.org/wiki/1996_Mundingburra_state_by-election
Legislation
CTH Electoral Act
s4AA, 200DJ , s200DK ,
s209, s239, s240 , s268(1)(b) and
s269(1)(b) , s322, s327 , s329,
s339 https://www.legislation.gov.au/Details/C2019C00103/Download
High Court Rules 2004 http://www.hcourt.gov.au/registry/filing-documents
CTH Criminal Code Act 1995 Div 274 https://www.legislation.gov.au/Details/C2019C00043/Download
EXTRACTED PROVISIONS
CTH CRIMINAL CODE ACT
Division 274—Torture
274.1 Definitions
(1) In this Division:
Convention means the Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted by the
General Assembly of the United Nations at New York on 10 December 1984.
Note: The text of the Convention is set out in Australian
Treaty Series 1989 No. 21 ([1989] ATS 21). In 2010, the text of a Convention in
the Australian Treaty Series was accessible through the Australian Treaties Library
on the AustLII website (www.austlii.edu.au).
(2) An expression that is used both in this Division and in
the Convention (whether or not a particular meaning is given to it by the
Convention) has, in this Division, the same meaning as it has in the
Convention.
274.2 Torture
(1) A person (the perpetrator) commits an
offence if the perpetrator:
(a) engages in conduct that inflicts severe physical or mental
pain or suffering on a person (the victim); and
(b) the conduct is engaged in:
(i) for the purpose of obtaining from the victim or from a
third person information or a confession; or
(ii) for the purpose of punishing the victim for an act which
the victim or a third person has committed or is suspected of having committed;
or
(iii) for the purpose of intimidating or coercing the victim
or a third person; or
(iv) for a purpose related to a purpose mentioned in
subparagraph (i), (ii) or (iii); and
(c) the perpetrator engages in the conduct:
(i) in the capacity of a public
official; or
(ii) acting in an official
capacity; or
(iii) acting at the instigation, or with the consent or
acquiescence, of a public official or other person acting in an official
capacity.
Penalty: Imprisonment for 20 years.
(2) A person (the perpetrator) commits an offence
if the perpetrator:
(a) engages in conduct that inflicts severe physical or mental
pain or suffering on a person; and
(b) the conduct is engaged in for any reason based on
discrimination of any kind; and
(c) the perpetrator engages in the conduct:
(i) in the capacity of a public official; or
(ii) acting in an official capacity; or
(iii) acting at the instigation, or with the consent or
acquiescence, of a public official or other person acting in an official
capacity.
Penalty: Imprisonment for 20 years.
(3) Absolute liability applies to paragraphs (1)(c) and
(2)(c).
Note: For absolute liability, see section 6.2.
(4) Subsections (1) and (2) do not apply to conduct arising
only from, inherent in or incidental to lawful sanctions that are not inconsistent
with the Articles of the International Covenant on Civil and Political Rights
(a copy of the English text of which is set out in Schedule 2 to the Australian
Human Rights Commission Act 1986).
(5)
Section 15.4 (extended geographical jurisdiction—category D) applies to an
offence against subsection (1) or (2).
274.4 No defence of exceptional circumstances or superior
orders
It is not a defence in a proceeding for an offence under this
Division that:
(a) the conduct constituting the offence was done out of
necessity arising from the existence of a state of war, a threat of war,
internal political instability, a public emergency or any other exceptional
circumstance; or
(b) in engaging in the conduct constituting the offence the
accused acted under orders of a superior officer or public authority;
but
the circumstances referred to in paragraphs (a) and (b) may, if the accused is
convicted of the offence, be taken into account in determining the proper
sentence.
200DJ Right of voter to receive ballot paper
(1) If, under section 200DG, the voter is entitled to vote by
pre-poll ordinary vote, a voting officer must give the voter a ballot paper,
duly initialled by the officer.
(2) The voting officer, at the request of a scrutineer, must
note any objection by the scrutineer to the right of the voter to vote by
pre-poll ordinary vote, and must keep that record.
(3) Immediately
after giving the ballot paper to the voter, the voting officer must:
(a) place a mark
against the person’s name on a copy of the certified list of voters for the
voter’s Division; or
(b)
record electronically against an approved list of voters for the voter’s
Division
200DK Voter to mark vote on ballot paper
Except as otherwise prescribed by the regulations, the voter,
upon receipt of a ballot paper under section 200DJ, must without delay:
(a) go to an unoccupied compartment of the voting place and
mark his or her ballot paper in private; and
(b) fold the ballot paper so as to conceal his or her vote and
deposit it in a ballot-box; and
(c) leave the voting place.
206 Separate voting compartments
Polling booths shall have separate voting compartments,
constructed so as to screen the voters from observation while they are marking
their ballot papers, and each voting compartment shall be furnished with a
pencil for the use of voters.
If the decision is handed down after printing or too late ,
the court issue mandamus to aec to verbally inform electors of changes prior to
pre polling or asap.
209 Ballot papers
(1) Ballot papers to be used in a Senate election shall be in
Form E in Schedule 1.
(2) Ballot papers to be used in a House of Representatives
election shall be in Form F in Schedule 1.
(3) Ballot papers must have a green background colour for
House of Representatives elections and a white background colour for Senate
elections and are to be printed using black type face of a kind ordinarily used
in Commonwealth Government publications.
Note: One effect of this subsection is that party logos are
printed only in black on ballot papers.
(5) The ballot papers to be used for postal voting shall have
the words “Postal Ballot paper” as a heading and shall contain the following
directions:
“Fold the ballot paper, place it in the envelope on which the
postal vote certificate is printed and fasten the envelope.”.
(6) Before issuing a ballot paper for a Senate election, an
officer shall, if the particulars are not already printed on the ballot paper,
write on the ballot paper:
(a) the name of the State or Territory in which the election
is to be held;
(b) the number of candidates to be elected;
(c) the numbers required to complete the Directions on
the ballot paper;
(d) the full names of all candidates arranged in the same way
as would be required if the names were being printed on the ballot paper; and
(e) the information that would be required by section 214 to
be printed on the ballot paper if the ballot paper were being printed.
(7) Before issuing a ballot paper for a House of
Representatives election, an officer shall, if the particulars are not already
printed on the ballot paper, write on the ballot paper:
(a) the name of the State or Territory, and the name of the
Division, in which the election is to be held;
(b) the numbers required to complete the Directions on
the ballot paper;
(c) the full names of all candidates for the Division in the
same order as would be required if the ballot paper were being printed; and (d)
the information that would be required by section 214 to be printed on the
ballot paper if the ballot paper were being printed.
(8) Before issuing a ballot paper that is to be used for
postal voting, an officer must ensure that the words and directions required by
subsection (5) are printed or written on the ballot paper.
245 Compulsory voting
(1) It shall be the duty of every elector to vote at
each election.
239 Marking of
votes in Senate election
Voting below the
line
(1) Subject to subsection (2), a
person must mark his or her vote on the ballot paper in a Senate election by:
(a) writing at least the numbers 1 to 12 in the squares printed
on the ballot paper below the line (with the number 1 being given to the
candidate for whom the person votes as his or her first preference, and the
numbers 2, 3, 4 and so on to at least the number 12 being given to other candidates so as to indicate the
order of the person’s preference for them); or
(b) if there are 12 or fewer
squares printed on the ballot paper below the line—numbering the squares
consecutively from the number 1 (in order of preference as described in
paragraph (a)).
Note: See also section 268A for
when the vote is formal.
Voting above the
line
(2) A vote may be marked on a
ballot paper by:
(a) writing at least the numbers
1 to 6 in the squares (if any)
printed on the ballot paper above the line (with the number 1 being given to
the party or group for whom the person votes as his or her first preference, and the numbers 2, 3, 4, 5 and 6 being
given to other parties or groups so as to indicate the order of the person’s
preference for them); or
(b) if there are 6 or fewer
squares printed on the ballot paper above the line—numbering the squares
consecutively from the number 1 (in order of preference as described in
paragraph (a)).
Note: See also section 269 for
when the vote is formal.
Candidates who
die before polling day
(4) Where a candidate dies between the date of nomination and
polling day, and the number of candidates remaining is greater than the number
of candidates to be elected, a ballot paper shall not be informal by reason
only:
(a) of the inclusion on the ballot paper of the name of the
deceased candidate;
(b) of the marking of any consecutive number opposite that
name; or
(c) of the omission to place any
number opposite that name, or of any resultant failure to indicate in consecutive
order the voter’s preferences.
240 Marking of votes in House of Representatives election
(1) 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.
(2) The numbers referred to in paragraph (1)(b) are to be
consecutive numbers, without the repetition of any number.
268 Informal ballot papers
(1) A ballot paper shall (except as otherwise provided by
section 239, and by the regulations relating to voting by post) be informal if:
(a) subject to subsection (2), it is not authenticated by the
initials of the presiding officer or a voting officer (within the meaning of
Division 3 of Part XVA), or by the presence of the official mark;
(b) subject to
sections 268A and 269, in a Senate election, it has no vote indicated on it, or
it does not indicate the voter’s first preference for 1 candidate and then
consecutively number at least 11 other candidates in the order of his or her preference;
(c) in a House of
Representatives election, it has no vote indicated on it, or it does not
indicate the voter’s first preference for 1 candidate and an order of
preference for all the remaining candidates:
Provided that, where
the voter has indicated a first preference for 1 candidate and an order
of preference for all the remaining candidates except 1 and the square opposite
the name of that candidate has been left blank, it shall be deemed that
the voter’s preference for that candidate is the voter’s last and
that accordingly the voter has indicated an order of preference for all the
candidates:
Provided further that, where there are 2 candidates only and
the voter has indicated his or her vote by placing the figure 1 in the square
opposite the name of 1 candidate and has left the other square blank or placed
a figure other than 2 in it, the voter shall be deemed to have indicated an
order of preference for all the candidates;
(d) it has upon it any mark or writing (not authorized by this
Act or the regulations to be put upon it) by which, in the opinion of the
Divisional Returning Officer, the voter can be identified:
Provided that paragraph (d) shall not apply to any mark or
writing placed upon the ballot paper by an officer, notwithstanding that the
placing of the mark or writing upon the ballot paper is a contravention of this
Act; or
(e) in the case of an absent vote—the ballot paper is not
contained in an envelope bearing a declaration made by the elector under
subsection 222(1) or (1A).
(2) A ballot paper to which paragraph (1)(a) applies shall not
be informal by virtue of that paragraph if the Divisional Returning Officer
responsible for considering the question of the formality of the ballot paper
is satisfied that it is an authentic ballot paper on which a voter has marked a
vote and the officer has endorsed the ballot paper with the words ‘I am
satisfied that this ballot paper is an authentic ballot paper on which a voter
has marked a vote.’.
(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.
268A Formal votes below the line
(1) A ballot paper in a Senate election is not informal under
paragraph 268(1)(b) if:
(a) the voter has marked the ballot paper in accordance with
paragraph 239(1)(b); or
(b) if there are more than 6 squares printed on the ballot
paper below the line—the voter has consecutively numbered any of those squares
from 1 to 6 (whether or not the voter has also included one or more higher
numbers in those squares).
(2) For the purposes of this Act:
(a) a voter who, in a square printed on the ballot paper below
the line, marks only a single tick or cross is taken as having written the
number 1 in the square; and
(b) the following numbers written in a square printed on the
ballot paper below the line are to be disregarded:
(i) numbers that are repeated and any higher numbers;
(ii) if a number is missed—any numbers that are higher than
the missing number.
Note: Paragraph (2)(b) applies both for the purposes of
determining whether a ballot paper is formal, and for the purposes of
determining which numbers marked on a ballot paper are counted in the election.
Example: A ballot paper has squares below the line that are
numbered 1, 2, 3, 3, 4, 5 and 6. The vote is informal because, by disregarding
the numbers 3 and upwards under subparagraph (2)(b)(i), only 2 squares have
been numbered.
A second ballot paper has squares below the line that are
numbered consecutively from 1 to 9 and then 11, 12, 13 and 14. The vote is
formal under paragraph (1)(b). However, only the squares numbered from 1 to 9
are counted for the purposes of sections 273 and 273A because the numbers 11
and upwards are disregarded under subparagraph (b)(ii) of this subsection.
269 Formal votes above the line
(1) A ballot paper in a Senate election is not informal under
paragraph 268(1)(b) if:
(a) the voter has marked the ballot paper in accordance with
subsection 239(2); or
(b) the voter has
marked the number 1, or the number 1 and one or more higher numbers, in squares
printed on the ballot paper above the line.
(1A) For the purposes of this Act:
(a) a voter who, in a square printed on the ballot paper above
the line, marks only a single tick or cross is taken as having written the
number 1 in the square; and
(b) the following
numbers written in a square printed on the ballot paper above the line are to
be disregarded:
(i) numbers that are repeated and any higher numbers;
(ii) if a number is missed—any numbers that are higher than
the missing number.
Note: Paragraph (1A)(b) applies both for the purposes of
determining whether a ballot paper is formal, and for the purposes of
determining which numbers marked on a ballot paper are counted in the election.
Example: A ballot paper has squares above the line that are
numbered 1, 1, 2 and 3. The vote is informal because, by disregarding the
numbers 1 and upwards under subparagraph (1A)(b)(i), no squares have been
numbered.
A second ballot paper has squares above the line that are
numbered consecutively from 1 to 9 and then 11, 12, 13 and 14. The vote is
formal under paragraph (1)(b). However, only the squares numbered from 1 to 9
are counted for the purposes of sections 273 and 273A because the numbers 11
and upwards are disregarded under subparagraph (b)(ii) of this subsection.
Votes that are formal both above and below the line
(2) If a ballot paper in a Senate election:
(a) has squares marked above the line in accordance with
subsection 239(2) or paragraph (1)(b) of this section; and
(b) has squares marked below the line in accordance with
subsection 239(1) or section 268A;
then, for the purposes of sections 272 and 273, the only
squares that are taken to have been marked on the ballot paper are the squares
that are marked below the line.
324 Officers not to contravene Act etc.
A person who, being an officer, contravenes:
(a) a provision of this Act for which no other penalty is
provided; or
(b) a direction given to him or her under this Act;
commits an offence punishable on conviction by a fine not
exceeding 10 penalty units.
325 Officers not to influence vote
(1) A person who, being an officer other than an Antarctic
officer, does any act or thing with the intention of influencing the vote of
another person, commits an offence punishable on conviction by imprisonment for
a period not exceeding 6 months or a fine not exceeding 10 penalty units, or
both.
(2) A person who, being an Antarctic officer, during the
relevant period in relation to an election under this Act, does any act or
thing with the intention of influencing the vote of another person, commits an
offence punishable on conviction by imprisonment for a period not exceeding 6 months
or a fine not exceeding 10 penalty units, or both.
(3) In this section, Antarctic officer means:
(a) an Antarctic Returning Officer;
(b) an Assistant Antarctic Returning Officer; or
(c) a person appointed to act as an Antarctic Returning
Officer or as an Assistant Antarctic Returning Officer.
325A Influencing votes of hospital patients etc.
(1) A person who is the proprietor of, or an employee of the
proprietor of, a hospital or nursing home shall not do anything with the
intention of influencing the vote of a patient in, or resident at, the hospital
or nursing home.
Penalty: Imprisonment for 6 months or 10 penalty units, or
both.
(2) The reference in subsection (1) to the proprietor of a
hospital or nursing home includes a reference to a person who is a member or
officer of a body corporate that is the proprietor of a hospital or nursing
home.
327 Interference with political liberty etc.
(2)
A
person shall not hinder or interfere with the free exercise or performance, by
any other person, of any political right or duty that is relevant to an
election under this Act.
Penalty: Imprisonment for 6 months
or 10 penalty units, or both.
(2) A person must not discriminate
against another person on the ground of the making by the other person of a
donation to a political party, to a State branch or a division of a State
branch of a political party, to a candidate in an election or by-election or to
a group:
(a) by denying him or her access to
membership of any trade union, club or other body;
(b) by not allowing him or her to
work or to continue to work;
(c) by subjecting him or her to any
form of intimidation or coercion;
(d) by subjecting him or her to any
other detriment.
Penalty:
(a) if the offender is a natural
person—imprisonment for 2 years or 50 penalty units, or both; or
(b) if the offender is a body
corporate—200 penalty units.
(3) A law of a State or Territory
has no effect to the extent to which the law discriminates against a member of
a local government body on the ground that:
(a) the member has been, is, or is
to be, nominated; or
(b) the member has been, is, or is
to be, declared;
as a candidate in an election for
the House of Representatives or the Senate.
(4) In subsection (3):
member of a local government
body means a member of a local governing body established by or under a
law of a State or Territory.
329 Misleading or deceptive publications etc.
(1) A person shall not, during the relevant period in relation
to an election under this Act, print, publish or distribute, or cause, permit
or authorize to be printed, published or distributed, any matter or thing that
is likely to mislead or deceive an elector in relation to the casting of a
vote.
(4) A person who contravenes subsection (1) commits an offence
punishable on conviction:
(a) if the offender is a natural person—by imprisonment for a
period not exceeding 6 months or a fine not exceeding 10 penalty units, or
both; or
(b) if the offender is a body corporate—by a fine not
exceeding 50 penalty units.
(5) In a prosecution of a person for an offence against
subsection (4) by virtue of a contravention of subsection (1), it is a defence
if the person proves that he or she did not know, and could not reasonably be
expected to have known, that the matter or thing was likely to mislead an
elector in relation to the casting of a vote.
Note: A defendant bears a legal burden in relation to the
defence in subsection (5) (see section 13.4 of the Criminal Code).
(5A) Section 15.2 of the Criminal Code (extended
geographical jurisdiction—category B) applies to an offence against subsection
(4).
(6) In this section, publish includes publish by
radio, television, internet or telephone.
369 Copies of petition and order of Court to be sent to
House affected, Governor-General and Speaker
The Chief Executive and Principal Registrar of the High Court
must, forthwith after the filing of the petition, give to the Clerk of the
House of Parliament affected by the petition a copy of the petition, and,
forthwith after the trial of the petition, give to:
(a) that Clerk; and
(b) in the case of a general election or a House of
Representatives election the writ for which was issued by the
Governor-General—the Governor-General; and
(c) in the case of a House of Representatives election the
writ for which was not issued by the Governor-General—the Speaker;
a copy of the order of the Court.
374 Effect of decision
Effect shall be given to any decision of the Court as follows:
(i) If any person returned is declared not to have been duly
elected, the person shall cease to be a Senator or Member of the House of
Representatives;
(ii) If any person not returned is declared to have been duly
elected, the person may take his or her seat accordingly;
(iii) If any election is declared absolutely void a new
election shall be held.
381A Extension of time for acts by officers
Where:
(a) an officer is required by a provision of this Act or the
regulations to do an act;
(b) the officer refuses or fails to do the act at the time, or
within the period, required by that provision;
the Commission may determine that the act may be done within
such further time, not exceeding 48 hours, as the Commission fixes.
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