QLD COMPULSORY PREFERENTIAL VOTING INVALID
QLD COMPULSORY PREFERENTIAL VOTING INVALID
“Keeping in mind that in Qld, voters are defined as “Electors” , political parties are not to be given unequal status over electors. If political sovereignty means anything an elector should be able to reject candidates and parties who are against optional preferential voting. It would be bullshit for a bullshitting judge to say if you don’t like them vote them out and at the same time say you cant exclude those people and exhaust your vote. The judge should metaphorically speaking, be hung upside down by the ankles -like Mussolini in the public square, along with such candidates.“
The consequences of knowingly engaging in unconstitutional behaviour
In Lange v The ABC [1997] HCA 25 , 189 CLR 520 https://jade.io/article/67991?at.hl=Lange+v+the+australian+broadcasting+corporation+%5B1997%5D+189+CLR+520
The Full bench of 7 judges of the high court said that when the constitution deprives legislation or actions of validity -
“…… in Australia, recovery of loss arising from conduct in excess of constitutional authority has been dealt with under the rubric of the common law, particularly the law of tort[56].” Applying Northern Territory v Mengel (1995) 185 CLR 307 at 350‑353, 372‑373.
Thus, if amending legislation was void ab initio , Kartinyeri at par [177] , and there was a conscious understanding that it was going to be unlawful Lamb v Cotogno at pars [9]-[14] http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1987/47.html There must be something that deters that conduct in the future.
Once deprived of lawfulness, the unconstitutional actions
bring into force all of the criminal laws in Qld regarding misuse of public
funds and misappropriation of parliamentary resources and stuff. All the wages
involved etc. You name it . Fraud under s408C and misconduct under s92A of the
criminal code. S26 of the public service act and s15 of The CCC Act. The links to those sections on my previous blog post here https://cynicismcentraltownsvilleaustralia.blogspot.com/2020/10/how-to-sack-qld-cops-read-this-insp_27.html
Are we officially a democracy ??
There is no textual statement of democratic principles or standards in the constitution. And Former conservative Judges such as Gleeson CJ pointed out in an easier to read form in Roach at pars [4] and [5] and Mullholland at par[6],[9] and [10] that there is nothing in the constitution that prevents different forms of government being legislated for by the CTH Parliament . That’s good or bad. As long as its compatible with the minimum standards of the “doctrine of representative and responsible government” . See also Hayne J at par[127], [142] and at [159] and . The now discredited former justice Heydon said at pars [179],[180] they can be wound back as did Hayne at [159]…….“Political acceptance and political acceptability find no footing in accepted doctrines of constitutional construction. The meaning of constitutional standards does not vary with the level of popular acceptance that particular applications of the power might enjoy.” [160]….” The plaintiff's argument that the franchise cannot be "wound back" amounted to the contention that the Parliament has no legislative power to depart from what now is seen as a commonly understood minimum requirement for the franchise. To the extent to which the argument depends upon the invocation of "common understanding", it must be rejected for the reasons that have been given”
That means it depends on who is power, not how they got there . How they rig the electoral system and the voting system . And how they stack the courts like America.
Consider what was said by Justice Kirby in Mullholland , DECIDED IN 2004 , at pars [229]-[235] particularly at par [231] …….the decisions of this Court give little support to attempts to translate the phrase "directly chosen by the people" into a large guarantee of substantial equality in the achievement of the democratic ideal reflected in Ch I of the Constitution. Thus, an appeal to implications said to be inherent in the phrase fell, for the most part, on deaf ears in a series of decisions where it was invoked before this Court[285]. Notwithstanding occasional references by the Court to the democratic character of the Parliament, and the representative democracy provided for in Ch I, attempts to turn the phrase "directly chosen by the people" into an effective instrument for the protection of concepts of democracy in the conduct of federal elections, when endangered by electoral law, have so far not proved fruitful.
If it be as some judges say that this popular sovereignty can
only be expressed in periodically voting in elections , and for the CTH house of representatives and Qld it be compulsory
preferential voting , 2 of the elements of that sovereignty are missing the
right not to vote for some one in the form of optional preferential voting and
one vote one value. The latter is for another time . I am here concerned with
the low hanging fruit of the invalidity of CPV.
With reference to words of high court justices , as apposed to yankee cultural imperialist running dog , freeky nazi gun nut, conspiracy theorist “SOVCITS”.
Its proportionality testing now.
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)
See the second last para in this austlii version of 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
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.”
Every citizen has a right, a duty and a reciprocal obligation and responsibility to participate in the political processes . Its a duty and obligation to the body politic to make sure Australia doesn’t slide back into its old ways of discrimination on grounds of wealth, sex and race. And in fact, it was THE HOWARD GOVERNMENT THAT DIRECTED THE CTH AG to say that , although the franchise was expanded to include women and aboriginal people by statute , that winding it back would arguably be disproportionate today
(Roach [2007] 233 CLR 162 Gleeson CJ at p177, pars [6], [7], [12], , Gummow , Kirby and Crennan JJ at pars[49] ,[62] , [78]-[84] , http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2007/43.html
Mullholland v AEC [2004] 220 CLR 181 KIRBY J at p 261 , pars [231]-[233] and [241] http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2004/41.html
Mason CJ ACTV [1992] HCA 45 at par [38] http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1992/45.html
[38]. Indispensable to that accountability and that responsibility is freedom of communication, at least in relation to public affairs and political discussion. Only by exercising that freedom can the citizen communicate his or her views on the wide range of matters that may call for, or are relevant to, political action or decision. Only by exercising that freedom can the citizen criticize government decisions and actions, seek to bring about change, call for action where none has been taken and in this way influence the elected representatives”
IN Kruger McHugh J said “The reasons that led to the drawing of the implication of freedom of communication lead me to the conclusion that the Constitution also necessarily implies that "the people" must be free from laws that prevent them from associating with other persons, and from travelling, inside and outside Australia for the purposes of the constitutionally prescribed system of government and referendum procedure. The implication of freedom from laws preventing association and travel must extend, at the very least, to such matters as voting for, or supporting or opposing the election of, candidates for membership of the Senate and the House of Representatives, monitoring the performance of and petitioning federal Ministers and parliamentarians and voting in referenda.”
A corollary of the freedom of communication is the freedom of association. Brown v Tasmania at par [199] , Mullholland [2004] 220 CLR 181 at CLR p 225 McHugh J, par [114 ], ACTV [1992] 177 CLR 106 at p 232, Kruger [1997] 190 CLR 1 at 116 There must be another corollary to that, being the freedom to disassociate . Given that there is a statutory duty and right to vote -the right to vote against.
Applying Hudson v Entsch [2005] FCA 460 at [34]-[56]
[56]……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.”
Green v Bradbury[2011] FCA 71 at [49]).
Qld Criminal Code s78 Interfering with political liberty
(1) Any person who by violence, or by threats or intimidation of any kind, hinders or interferes with the free exercise of any political right by another person, is guilty of a misdemeanour, and is liable to imprisonment for 2 years.
(2) If the offender is a public officer, and commits the offence in abuse of the offender’s authority as such officer, the offender is liable to imprisonment for 3 years.
We have arrived at the point where the high court worried that the political and electoral system is so corrupt, so discriminatory, so rigged towards the incumbents and those that fund them. That though different party names are on the ballot they are the same. Mchugh J in Mullholland p 217 par [86] , [88] , Gleeson CJ at par [18] and Kirby at p 264 pars [229]-[241] http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2004/41.html The 3 major parties a joint mafia criminal enterprise taking the same money from the same people and getting the same jobs from them after politics. More far right and well funded millionaire businessmen are skewing the system.
People have misconceptions about Langer v The CTH upholding compulsory preferential voting for the house of representatives. Toohey and Gaudron at 331-333 pars [9]-[19] austlii McHugh J at p340 pars [9]-[24] in particular [14] and [17], [20]-[22] austlii . s240 of the CTH Electoral Act setting up compulsory preferential voting was not challenged. It was the now repealed provision making it illegal to inform people that they could vote according to how votes are held to be formal. The judges were concerned with not with whether CPV was good or bad but that advocating against it undermined what those with the numbers wanted. It must be added that whilst McHugh J was a hero judge who advocated sovereignty of the people, he was also a former labor attorney general and this influenced his view about CPV. There were only “bare statements” but it was not seriously said that a system of optional preferential voting would undermine the system of representative government which itself was implied -overtime. It was said- that it would undermine THE SYSTEM SET UP BY THE ACT.
It was said by those in the majority that if there was a tie or close vote those elected on deemed preferences may not be properly described as chosen by the people at federal elections but that question was for another time.
The result may have been different , it was said , if the constitution reffered to “electors” or “elected”. For the purposes of Qld law , we already had OPV and it was working well for voters. Throughout s107-125 of The Qld electoral act – voters are “electors” and candidates are declared “elected” .
In arguing about the constitutionality of the Qld amending act bringing in CPV , you have 2 options (1) To strike at the operation and effect of not being able to leave squares blank – that it is beyond power and invalid, cant be severed and all actions taken under them are void ab initio , i.e. the election/s had no legitimacy (2) To say that so much of the amending act that purported to repeal the previous ability to exhaust votes through optional preferential voting was invalid and the previous provisions remain inforce
Kirby J in Kartinyeri at par [171]
In South Australia v The Commonwealth[308], Latham CJ observed:
"Parliament, when it passes an Act, either has power to pass that Act or has not power to pass that Act. In the former case it is plain that the enactment of other valid legislation cannot affect the validity of the first-mentioned Act if that Act is left unchanged. The enactment of other legislation which is shown to be invalid equally cannot have any effect upon the first-mentioned valid Act, because the other legislative action is completely nugatory and the valid Act simply remains valid."
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].
Kirby J in Mullholland
[236] Standard of "scrupulous care": It follows that the Constitution affords the Federal Parliament an ample power to make laws "relating to elections" and "with respect to" electoral matters. The only express restrictions concern the requirement that both Houses be "directly chosen by the people" and that casual vacancies in the Senate ordinarily be filled by candidates of the same political party. How should this Court approach an electoral law said to offend these constitutional requirements, given that abuse of legislative power for partisan advantage is potentially a special risk in the case of electoral laws?
[237] On this issue, differing views have been stated in this Court. In the ACTV case, Mason CJ suggested that restrictions on particular political activity in relation to elections must be "scrutinize[d] ... with scrupulous care"[298] or, as he elsewhere put it, "very carefully"[299]. His Honour explained that this approach was necessary "in order to protect the integrity of the political process"[300]. Supporting the obligation of "scrupulous care" is the fundamental notion that protecting incumbents is not a constitutional imperative[301]. Upon that footing, laws that have a tendency to protect incumbents - or those who may hope or expect to enjoy long-term incumbency - need to be scrutinised very carefully. The appellant supported this approach. He argued that it left no scope for the operation, in the Australian constitutional context, of notions of weakened scrutiny such as were implied in concepts of "judicial deference" or tolerance of a "margin of appreciation", as mentioned in the Federal Court.
at par [243] ……. it is probably true to say that, in certain circumstances, courts have a heightened vigilance towards the potential abuse of the lawmaking power inimical to the rule of law[312]. Such vigilance may be specially needed when the power is directed against unpopular minorities[313]. In those cases, or in circumstances where current lawmakers pursue their own partisan advantage, courts may subject the legislative vehicles of such advantage to close attention. This is the result of applying a constitutional standard that assumes no preference for incumbents or any other particular political interest and postulates (at least in general terms) a "level playing field" for competing candidates and political parties offering their ideas, policies and programmes to the electors[314]. Perfect calibration of the "playing field" cannot be required of a valid electoral law[315]. However, circumstances will sometimes arise where the field has been too obviously graded in a particular direction so as to suggest that the lawmakers have exercised their power to their own political advantage in a way exceeding constitutional tolerance[316].
Equality before the law.
The Qld Supreme Court in Coleman v Watson and The State of QLD [2007] QCA 343 held that access to the Qld Parliament was a fundamental right at par [67] . http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QSC/2007/343.html
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 See also Unions NSW v NSW No2 at par [40]
The Qld Court of Appeal ( WILLIAMS JA for the court) held that equality before the law was a constitutional principle In re : Criminal Proceeds Confiscation Act 2002 (Qld), Re [2003] QCA 249 (13 June 2003) at Par [52] http://www.austlii.edu.au/au/cases/qld/QCA/2003/249.html
They applied the decision of Gaudron J in Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173
“[52] In her judgment Gaudron J comes close, in my view, to providing the answer to the question now before this court; she said at 208-9:
"In my view, consistency with the essential character of a court and with the nature of judicial power necessitates that a court not be required or authorised to proceed in a manner that does not ensure equality before the law…………..”
See also Unions NSW v New South Wales [2019] HCA 1 (29 January 2019) No2
at Par [40] http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2019/1.html
Keeping in mind that in Qld, voters are defined as “Electors” , political parties are not to be given unequal status over electors. If political sovereignty means anything an elector should be able to reject candidates and parties who are against optional preferential voting. It would be bullshit for a bullshitting judge to say if you don’t like them vote them out and at the same time say you cant exclude those people and exhaust your vote. The judge should metaphorically speaking, be hung upside down by the ankles -like Mussolini in the public square, along with such candidates.
[39] Unions NSW No 2 at [39]-[40] Kiefel, Bell and Keane JJ “The defendant submits that candidates and political parties occupy a constitutionally distinct position which legitimises the preferential treatment of candidates and political parties relative to others who are not directly seeking to determine who shall be elected to Parliament or form government. The defendant argues that the foundation of the implied freedom is ss 7 and 24 of the Constitution, which require that the Senate and House of Representatives be composed of persons "directly chosen by the people". It is said that the choice that is protected by the implied freedom is not a choice between ideas, policies, views or beliefs except insofar as such choice may be reflected in the electoral choice between candidates. Further in this regard, it is said that the "processes of choice by electors to which ss 7 and 24 allude ... encompass legislated processes which facilitate and translate electoral choice in order to determine who is or is not elected as a senator or member of the House of Representatives"[43]. On that basis, the defendant argues that candidates and political parties enjoy special significance as the subjects of the protected electoral choice, which itself justifies their differential treatment.
[40] Those submissions should not be accepted. The requirement of ss 7 and 24 of the Constitution that the representatives be "directly chosen by the people" in no way implies that a candidate in the political process occupies some privileged position in the competition to sway the people's vote simply by reason of the fact that he or she seeks to be elected. Indeed, to the contrary, ss 7 and 24 of the Constitution guarantee the political sovereignty of the people of the Commonwealth by ensuring that their choice of elected representatives is a real choice, that is, a choice that is free and well-informed[44]. Because the implied freedom ensures that the people of the Commonwealth enjoy equal participation in the exercise of political sovereignty[45], it is not surprising that there is nothing in the authorities which supports the submission that the Constitution impliedly privileges candidates and parties over the electors as sources of political speech. Indeed, in ACTV, Deane and Toohey JJ observed that the implied freedom[46]: "extends not only to communications by representatives and potential representatives to the people whom they represent. It
Clubb v Edwards; Preston v Avery [2019] HCA 11 (10 April 2019)
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2019/11.html
An explanation of rationality . And here we are talking about the ACTIONS OF THE STATE .
[70] Proportionality testing is an assessment of the rationality of the challenged law as a response to a perceived mischief that must also respect the implied freedom. A law which allows a person to be shot and killed in order to prevent damage to property can be seen to have a connection to the purpose of preventing damage to property. It may also be accepted that other means of preventing damage to property would not be as effective. Nevertheless, the law is not a rational response to the mischief at which it is directed because it is manifestly disproportionate in its effect on the peace, order and welfare of the community. In the same way, it is only if the public interest in the benefit sought to be achieved by the legislation is manifestly outweighed by an adverse effect on the implied freedom that the law will be invalid
Par [5]The test to be applied was adopted in McCloy by French CJ, Kiefel, Bell and Keane JJ[5], and it was applied in Brown by Kiefel CJ, Bell and Keane JJ[6] and Nettle J[7]. For convenience that test will be referred to as "the McCloy test". It is in the following terms[8]:
- Does the law effectively burden the implied freedom in its terms, operation or effect?
- If "yes" to question 1, is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?
- If "yes" to question 2, is the law reasonably appropriate and adapted to advance that legitimate object in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?
[6] The third step of the McCloy test is assisted by a proportionality analysis which asks whether the impugned law is "suitable", in the sense that it has a rational connection to the purpose of the law, and "necessary", in the sense that there is no obvious and compelling alternative, reasonably practical, means of achieving the same purpose which has a less burdensome effect on the implied freedom. If both these questions are answered in the affirmative, the question is then whether the challenged law is "adequate in its balance". This last criterion requires a judgment, consistently with the limits of the judicial function, as to the balance between the importance of the purpose served by the law and the extent of the restriction it imposes on the implied freedom[9].
Unions NSW No.2 [2019] HCA 1 Kiefel CJ, Bell and Keane JJ at Par [41]…… “The provisions in question in ACTV prohibited the broadcasting of political advertisements or information during an election period. They were held to infringe the implied freedom and to be invalid. Invalidity resulted because the nature or extent of the restrictions could not be justified[47]. In Lange[48] it was observed that the provisions in question in ACTV were held to be invalid because there were other, less drastic, means by which the objects of the law could have been achieved. This passage in Lange was referred to in the joint judgment in McCloy[49], where it was explained that if there are other equally effective means available to achieve the statute's legitimate purpose but which impose a lesser burden on the implied freedom, it cannot be said that one which is more restrictive of the freedom is reasonably necessary to achieve that purpose.”
For instance , look at what was said by Kiefel CJ Bell and Keane JJ in Brown v Tasmania [2017] HCA 43 at par [139] http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2017/43.html :
“The question whether a law can be said to be reasonably necessary, in the sense in which that term applies in the context of the freedom, does not involve a free-ranging enquiry as to whether the legislature should have made different policy choices. It involves determining whether there are alternative, reasonably practicable, means of achieving the same object but which have a less restrictive effect on the freedom[79]. Where such alternative measures are obvious and their practicability compelling it may be difficult for those arguing for the validity of the legislation to justify the legislative choice as necessary, as previously explained[80].”
In Clubb v Edwards, the court held that human dignity was the most fundamental right. CPV holds the sovereign people “captive to the 2 party system Clubb v Edwards , Preston v Avery [2019] HCA 11 10 April 2019 at pars [51] [82] [98] [99] [101] [197] http://eresources.hcourt.gov.au/downloadPdf/2019/HCA/11 See also Kirby J in Kartinyeri at par [166] , [174]
Presumption in favour of liberty In Re Yates p79-80 Isaacs J : Section heading (2) The main case https://jade.io/article/63225?at.hl=presumption+in+favour+of+liberty http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1925/53.html?context=1;query=[1925]%20HCA%2053;mask_path=au/cases/cth/HCA
“……. there is always an initial presumption in favour of liberty, so that whoever claims to imprison or deport another has cast upon him the obligation of justifying his claim by reference to the law. ……. the Courts themselves see that this obligation is strictly and completely fulfilled before they hold that liberty is lawfully restrained”
This presumption can be applied to the “indirect – amendment -repeal” of compulsory preferential voting by Enacting the CTH torture provision into the CTH Criminal Code . Those sections expressly enacted
AJL20 v Commonwealth of Australia [2020] FCA 1305
THE TORTURE ARGUMENT – Any political right s327(1) CTH Electoral Act and the implementation of Div274 of the ICCPR into the criminal code .
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
I assert that this later provision amend the CPV provisions of the Electoral Act to the extent below.
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.”
Kartinyeri v The CTH
BRENNAN CJ AND McHUGH J [9] The Bridge Act is an instance of what F A R Bennion[12] calls "indirect express amendment". It effects a partial repeal of the Heritage Protection Act, albeit the text of the Heritage Protection Act is unchanged[13]. As Windeyer J said in Mathieson v Burton[14]:
"For some purposes it may sometimes be relevant to distinguish between a repeal and an amendment, or a modification, as the latter is sometimes called. But an amendment which permanently reduces the ambit of any of the provisions of an Act involves a repeal of it in part. That is because after the amendment the statute no longer operates as it formerly did: and the only way by which a statute which has come into operation can cease to operate is by repeal, express or implied; or by its expiry in the case of a temporary statute; or by something that was made a condition of its continued operation coming to an end. An Act that excludes from the operation of a former Act some matter formerly within its purview thus repeals it pro tanto, that is to say 'in part'. Provisions of a later act which are inconsistent and irreconcilable with the provisions of a former Act dealing with the same subject matter are thus an implied repeal of them. That has been recognized in this Court since its early days: see Goodwin v Phillips[15]."
In determining the constitutional validity of an Act that reduces the ambit of an earlier Act, it is immaterial that the text of the earlier Act remains unchanged. It is the operation and effect in substance of the impugned Act which are relevant to its validity, whether or not the text of the earlier Act is changed.. see also pars [14], Gaudron J at [47], [49], GUMMOW AND HAYNE JJ at[67],[68]
“Later amendments to the criminal laws of the states, territories and The CTH relating to consorting with criminals, set up the insane situation that you can be prevented by law from associating with them, quite rightly , but , not being in prison, and being entitled to vote, they are free to stand for election (Roach). That being so, you are forced to vote for them though you cant associate with them , and cant disassociate from them when you vote or vote is informal . They can be elected on final preferences. These people may be peoples abusers and oppressors. That cause immense trauma to people under state , territory and the CTH Torture laws “
ABOVE THE LINE SENATE VOTING
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.
Its optional preferential elsewhere and above the line for the senate. No argument can be advanced that OPV goes against the integrity of voting systems.
Compelling Justification - Constitutional facts
Unions NSW No.2 Kiefel CJ, Bell and Keane JJ at Par [47]…… “It is the role of the Court to ensure that the freedom is not burdened when it need not be.”
And Gageler J who was in the majority said at par [67] …” the Communist Party Case is authority for a specific principle of constitutional adjudication, amounting to an application of the more general principle in Marbury v Madison[83], which bears directly on the Court's determination of whether legislation burdening political communication meets the requisite standard of justification. The specific principle of constitutional adjudication, as expounded by Williams J, is that "it is the duty of the Court in every constitutional case to be satisfied of every fact the existence of which is necessary in law to provide a constitutional basis for the legislation"[84]. That principle is ultimately determinative in the present case.” [1951] HCA 5; (1951) 83 CLR 1 at 222. See Hughes and Vale Pty Ltd v New South Wales [No 2] [1955] HCA 28; (1955) 93 CLR 127 at 165; [1955] HCA 28; Commonwealth Freighters Pty Ltd v Sneddon [1959] HCA 11; (1959) 102 CLR 280 at 307; [1959] HCA 11.
Article “Queensland compulsory preferential voting: How Labor beat LNP at their own game” By Amy Remeikis Updated April 22, 2016 — 7.09amfirst published at 7.05am
This is the link to the day CPV became law in Qld
https://www.parliament.qld.gov.au/documents/hansard/2016/2016_04_21_WEEKLY.pdf
Reasons for bringing in CPV don’t pass constitutional facts test in Unions NSW No2 its we are going to do this. https://www.parliament.qld.gov.au/Documents/TableOffice/TabledPapers/2016/5516T572.pdf
Its just bare statements. No consultation. If it gets to court it will fall.
According to the parliamentary supremacy cases in relation to express and implied/indirect repeal - Div. 274 of The CTH Criminal Code Act , “Torture” , as amended in 2010 now applies to the interpretation of the CTH Electoral Act.
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 . You have to rank people you despise and play “who is the better mafia crook, and who is the better nazi. And the people you don’t want can be elected on final preferences. Roach par [87] Gummow, Kirby and Crennan J . You are forced to vote for the very same people who are against the integrity of the system McCloy v NSW at par [42]
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).
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