Economics.org.au

Presenting 13 Paddy McGuinness columns opposing compulsory voting:
1. untitled “McGuinness” column, The Weekend Australian, March 17-18, 1990
2. Is the party over for compulsory voting?, The Australian, December 13, 1990
3. Practical protest against the compulsory vote, The Weekend Australian, September 12-13, 1992
4. Silenced by a mouthpiece of democracy, The Australian, March 10, 1993
5. Labor Party’s bully boys appear in formal dress, The Australian, May 26, 1993
6. It’s time to stop dragging the unwilling to the polls, The Sydney Morning Herald, September 30, 1994
7. Leaving well alone, The Sydney Morning Herald, December 13, 1994
8. A question of free speech, The Sydney Morning Herald, February 18, 1995
9. Troublemaker Langer challenges the whole Federal election, The Sydney Morning Herald, February 2, 1996
10. Intermission from Robert Haupt — Unforgettable Albert Langer, The Australian Financial Review, February 16, 1996
11. Mr Langer is entitled to be an agitator, not a prisoner of conscience, The Sydney Morning Herald, February 17, 1996
12. Why we can’t encourage Langer’s way, but can say ‘free Albert!’, The Sydney Morning Herald, February 21, 1996
13. We can vote for Tweedledum, Tweedledee and Albert Langer, The Sydney Morning Herald, March 2, 1996
14. Don’t force the vote on those who don’t care, The Sydney Morning Herald, April 19, 2001

1.
Padraic P. McGuinness, untitled “McGuinness” column, The Weekend Australian, March 17-18, 1990, p. 2.

I am thinking of voting informal next Saturday. Indeed, I am thinking of not voting at all.

This is not because I am disillusioned with the major parties, nor because it does not matter that the democratic right to vote should be exercised.

But I am getting tired of the way in which the right to vote has become more than a right, but a requirement, and the fact that the Parliament through the Electoral Act has presumed to tell me not only that I must vote, but also that I must vote in a particular manner.

Moreover, I am prohibited from advising people how to vote informal, or in a way which avoids the necessity to give preferences to parties or candidates whom they disapprove of.

This is the current state of our electoral law. An anarchist candidate in Victoria has been actively threatened by the authorities for proposing to recommend that people who sympathise with his positions should not vote, or should vote informal.

Indeed, he has been told that if he shows people how to vote informal he can be subjected to a fine or a prison sentence.

We are all familiar with the phenomenon of the donkey vote in elections. This is not the vote for the Democrats or the greens (not always, anyway) but the way in which many people forced to the polls under threat of a fine or other harassment simply number the boxes down the ballot paper, starting at the top and then voting 1, 2, 3 etc.

The top spot on a simple ballot paper is always worth a lot of votes of this kind. It is clear that these people have no especial interest in exercising their democratic right of choice.

Why should they be forced to? It seems that the compulsory vote is the result of politicians who felt slighted by the fact that, once upon a time, a lot of people stayed in the pub instead of going to vote.

The social workers do not like it when ordinary people simply want to be left alone — they have to be forced to participate. If there are any fundamental political and human rights, surely the right to be left alone to mind your own business is one of them.

(The great philosopher and mathematician Blaise Pascal once wrote that all the problems of the world derived from a man’s inability to stay at home and mind his own business.)

And surely the right to advise people how to vote informal, to vote for a single candidate of their own choice, or not vote at all, ought to be pretty basic. But not according to our electoral laws.

There are lots of things you can do with a ballot paper once you have had your name ruled off the electoral rolls. One of them is simply to tear it up. Another is to scribble insulting remarks about politicians and politics on it.

Another is to cross out all the names, and vote simply or preferentially for Mickey Mouse, Batman, or Blinky Bill according to your own taste.

Another is to vote 1 for a single candidate you happen to like, and number every other box 2 so that your preferences will not be able to be distributed — but, according to the existing law, your first preference will be valid.

Another is simply to put an x in every square. Another might be to do nothing whatsoever to the paper, but fold it and put it in the ballot box — but blank ballot papers are very tempting to some scrutineers.

In the case of the elections for the ACT Legislative Assembly, voters were presented with a metre-wide paper (or it might have been a yard wide, but for years we were not even allowed by law to use non-metric measures in publications).

The only sensible thing to do with that piece of paper was to pin it up in a lavatory, but many Canberrans were silly enough to write numbers on it.

I would never advise anyone to do anything but what they are told by law with a ballot paper.

Imagination is not permitted. The provisions of the Commonwealth Electoral Act, which allow a certain variation from the traditional numbering of a preferential vote are designed not to allow people more freedom, but to provide for those voters who are either dyslexic, or too stupid to fill out a ballot paper correctly.

I wonder which political party could have thought that it would benefit from such provisions?

Now if you put a clear 1 beside the name of your favourite candidate (with party name attached) in the House of Representatives election you can be sure that he or she will get your vote, no matter where your pencil or ability to count might wander afterwards.

The Senate paper is, of course, much more complex, and would tax the attention of most people trying to record a formal vote which does not follow a party ticket.

This is why you can now vote a simple party ticket by putting 1 in one of the boxes at the top of the paper as recommended by the party you happen to favour for the moment.

If you feel particularly happy about having a party tell you which of its candidates you should put first (do all Liberals prefer Bronwyn Bishop to Chris Puplick in NSW? Do all Labor voters really want to vote for Steve Loosey?) you can establish your own order of preferences, wandering all over the ballot paper.

With care this is a formal vote, though I have often wondered whether my preferences are fully distributed when I do something like this.

I am not going to tell you how I am going to vote, or even whether I am going to vote formally next Saturday. That is one of the glories of democracy, the secret ballot.

I happen to be enrolled in the electorate of Sydney, so there is no doubt at all that the person re-elected will be Peter Baldwin, one of the more intelligent Labor members of parliament though not noted for the courage of his public positions. (Yes, I know about the bashing.)

But I suspect that this electorate might be just about ripe to fall to an Independent candidate, if not to the informal vote.

If Nick Greiner goes ahead with the most popular of all his proposals, to reduce the number of politicians in NSW, Dawn Fraser, the Independent member for Balmain, might find herself unemployed and having developed a taste for politics, inclined to contest Sydney.

Since most of the traditional Laborites in the Sydney and Balmain electorates have been stolen from them by the left-wing, middle-class carpetbaggers, Dawn would probably have a pretty good chance.

But when it comes to voting informally or not voting at all it is a quite unacceptable state of affairs when peaceful philosophical anarchists are not allowed to put forward their views and their advice as to what qualified voters should do on election day.

Democracy and the democratic vote are too precious to allow them to be perverted by the number-crunchers and the Tammany Hall politicians.

Implicit in the right to vote is the right not to vote, and the right to spoil one’s vote.

Implicit in it also is the right to tell, advise, beg, persuade or nag other people about the way in which they vote — though occasionally most people would like a rest from this.

However, might I suggest, without advising, that if you are fed up with the major parties and are not really keen on wasting your vote on the irresponsible and fascistic Democrats or Greens, you might consider the alternatives?

***
2.
Padraic P. McGuinness, “Is the party over for compulsory voting?,” The Australian, December 13, 1990, p. 11.

Recently Nick Greiner, the Premier of NSW, raised the compulsory voting issue once again. Should people be compelled to vote, and if so, who does this benefit?

It was really raised in the context of a much wider discussion which is developing relating to the membership of political parties. It is quite obvious that there is no such thing as a mass party these days, and the active membership of the principal political parties is quite small.

As the parties change their appeal and come to terms with the modern world, there is no longer the supply of zealots who can be relied upon to man the polling booths on election day. Moreover, it is becoming increasingly unacceptable that tiny numbers of people should preselect party candidates who are then presented to the electorate which up to that date has had little or no knowledge of their antecedents and merits — if they have any.

The Leader of the NSW Opposition, Bob Carr, immediately condemned the suggestion that voting might be made voluntary. As someone who has studied American history, from the origins to the present day, Mr Carr cannot be described as either ignorant relating to the subject or thoughtless. I am sure he has thought about it often. His immediate response was that it was somehow in the interests of the “conservative” parties if voting should cease to be compulsory.

It is necessary to realise what an insult to the supporters of the Labor Party this proposition is. It is, in effect, saying that a substantial proportion of their voters do not really want to vote and would not do so if it were not for coercion. Indeed, the Labor Party has gone further than this, and has insisted that even those who are too lacking in literacy and numeracy to vote the whole ticket in numerical order in a House of Representatives election or the State equivalent should have their votes counted.

There is a case for simplifying the Senate ticket, so that a voter can simply vote a party ticket if he or she prefers. This is standard practice in just about all democratic countries with a form of proportion representation like that which we have in the Senate. But in a single-member constituency system, the exhaustive preferential vote is just about the best system which has ever been developed.

The interesting thing is that people in Australia clearly feel an obligation to vote in Federal and State elections. In NSW, local government voting is also, in principle, compulsory — but the much lower voting ratio is just one of many indicators of the contempt in which most electors hold local government. The electoral office does not even attempt to enforce the law.

Why should people who do not feel any necessity to vote be obliged to do so? There is plenty of rhetoric about civic duty and so on. It is clear, however, from the appalling neglect of any attempt in the education system to inform young people about the Constitution, the voting system and the whole political system that this is pure puffery. Really, what the Labor Party wants is a lot of illiterate dopes who will believe that as a “class” they ought to vote for the Labor Party, as a “class” party.

Unhappily, even the near-illiterate no longer work that way. The donkey vote has been a well-known phenomenon for years; but nowadays the “near-donkey” vote does not inevitably accrue to the Labor Party.

What should we do about all this? Probably the most sensible comment has been made by the political scientist Malcolm Mackerras, who has pointed out that while compulsory voting is in principle not a terribly good idea, it nevertheless works reasonably well in Australia, and “if it ain’t broke, don’t fix it”. This is a fine conservative principle, possibly the most important tenet of conservatism.

But is it true that it “ain’t broke”?

The progressive collapse of local government, and its growing domination by tiny middle-class “resident action” minorities, indicates that this is one area which is “broke”. Despite the threat of fines in NSW, people are increasingly refusing to vote in local elections. This is a strong argument for abolition of local government as it now exists. Or, at least, for some pretty fundamental reforms of local government to remove the areas of corruption and lurkmanship. (Like the Sydney County Council.)

In more important electoral areas, while the electorate as a whole seems not unhappy about compulsory voting, the falling active support for political parties seems evidence of dissatisfaction. The preselection system is looking worse and worse.

Perhaps one appropriate response would be to open up the preselection process to something like the US system of primaries, whereby essentially anyone can register as a supporter of a political party in the appropriate electorate and take part in the voting for the candidate who will represent that party. The National Party has probably the nearest thing to such a system in Australia.

It is far from a perfect system, of course. There are no simple solutions in democratic politics. But at least it is one way of involving a wider sample of the electorate in the party system. It also has the result that the rigidity and discipline of the party system is not as great as in Australia. It would be nice to point to the disastrous fools and dullards which the Australian system throws up — but it has to be admitted that all democratic systems do that. Even with voluntary voting.

Members of silly little elitist organisations like Mensa (of which my brother is a long-term member — I always refused to join) like to argue that there is a case for relating voting eligibility to intelligence. Some of them will even argue that there should be a kind of multiple franchise, with the most intelligent getting more votes. Given the disastrous record of intellectuals in this century, this is hardly an attractive recipe for good government. It seems like a new version of the limited property franchise.

Nevertheless, we have to think seriously about the issue of whether those who do not really want to vote should be forced to, and what the impact of this on the political system is. It is clear that at present there are a lot of people voting who care nothing for the privilege, and that many of these are being exploited or bullied by existing political institutions. This is probably true of most 18-year-olds. Perhaps we should reconsider the decision to lower the voting age from 21.

Of course, the teachers would oppose this. It is obvious that many of them spend time in the classroom trying to influence the votes of the children they have in their charge, instead of teaching them about the political institutions of our society. (Let me hasten to add that this has always been the case.)

Even more importantly, we have to consider just how to overcome the disaffection of the electorate with the political system. Some of this is artificial. The barrage of abuse of politicians from the media is purely a product of competitive jealousies as journalists and broadcasters try to convince people that their ignorant and prejudiced views are to be preferred to those of elected representatives. But a lot of it is real. Are we doing our duty as a community by those whom we force to the polls?

***
3.
Padraic P. McGuinness, “Practical protest against the compulsory vote,” The Weekend Australian, September 12-13, 1992, p. 2.

Don’t vote — it only encourages them; whoever you vote for a politician always gets in; vote for Guy Fawkes, the only man ever to enter parliament with honest intentions; vote informal.

These are all old anarchist slogans expressing a distaste for the political process, and increasingly they are striking a responsive chord in the electorate at large.

But, surprising as it may seem in a supposedly free society, all these are illegal acts, and to advise people to refrain from voting, to vote informal, to write a favoured name on to the ballot paper, would be to encourage the committing of an offence. Indeed, it has often been suggested that were a newspaper to actually advocate any of these actions it could be prosecuted.

It is pretty clear the electorate is fed up with politicians and parties, and if they were given the choice many people would not bother to vote either in the coming Victorian election or in the federal election next year.

And why indeed should they have to? Although most people are resigned to compulsory voting, it is really a highly objectionable interference in our political liberties, which include the liberty not to be interested in politics, to be forced to cast a ballot.

The compulsion goes further than this. Not only are we forced to vote, under threat of a fine, we are also instructed as to how we must mark the ballot paper.

Even worse, the Australian Electoral Commission dislikes any public discussion of the possibilities of avoiding the compulsion to vote or of any action to lodge a practical protest against it.

In more democratic societies, it is commonplace for a substantial minority, or even sometimes a majority, to refrain from voting either because they can’t be bothered or because they feel that none of the candidates is worth voting for. In this country the most we can legally do as a protest is to vote for an independent. But it is rare indeed that there is an independent candidate who is really worth voting for.

So if you really wanted to refuse to vote, but did not want to find yourself in breach of the law, what could you properly do?

First, everybody who is either a citizen or a British subject is legally obliged to enrol and to vote, with a fine of up to $50 for failure to comply. (The anomaly that gives UK citizens the right to vote in Australian elections remains, and there is a good argument that this right should be withdrawn; there is at present before the High Court a case relating to section 44 of the Constitution which prevents citizens of a foreign power being elected to the federal Parliament, which will among other things determine whether UK citizens have a right to stand for election as well as vote in Australia.)

So you have to turn up at the polling booth on election day, and have your name checked on the electoral roll. You will then be handed a ballot paper or papers. The Commonwealth Electoral Act (section 240) lays down how you must vote — for the House of Representatives it is required that you must mark your ballot paper by writing 1, 2, 3, etc, in order of preference for the candidates. (But a cruder form will be counted.)

What can you do if you don’t want to vote for any of them? It is not at all clear that section 240 prevents you from writing anything else on a ballot paper, or simply crossing out all the names. Perhaps I might be committing an offence if I suggested this would be a sensible thing to do.

But there is clearly nothing to stop you doing any of these things, or even keeping within the law by writing nothing at all on the ballot paper — leaving it blank. These days we can be confident that scrutineers would ensure that no one subsequently filled in the blanks.

Or you might simply put the ballot paper in your pocket and walk out the door despite the requests of the clerks that you put the paper in the ballot box.

Section 339 of the electoral Act lays down that a person shall not, among other things, “fraudulently destroy or deface any nomination paper of ballot paper”, “fraudulently take any ballot paper out of any polling booth or counting centre”, or “unlawfully destroy or otherwise interfere with ballot boxes or ballot papers”.

Now if I should either cross out all the names on my ballot paper or write in a vote for Superman, Captain Marvel and Mickey Mouse this certainly would be voting other than according to Section 240. But it could not by any stretch of the imagination be said to be fraudulent. So in terms of section 339 it is clearly permissible.

Similarly, if I put my ballot paper in my pocket and walk out of the polling centre this is clearly not fraudulent either.

Whether to do so would be in any sense unlawful is not so clear. The legalisation of abortion in NSW occurred when a judge accepted that the law which forbade unlawful abortions implied that there must be lawful abortions; by the same argument it is clear that there are lawful occasions on which one can destroy or remove a ballot paper.

It would be very hard to argue that for me to destroy or take out my own ballot paper would be either fraudulent or unlawful. Perhaps it might be argued that the ballot paper was the property of the electoral authority — but in itself it has no value, and its removal could therefore hardly be considered theft.

Everyone would accept that to destroy or remove someone else’s ballot paper should be unlawful. But to destroy one’s own ballot paper, or walk out with it, ought not to be considered in any way objectionable.

What happens if you try it? Much would depend on the clerks in the polling centre. I would imagine, as you walked past the ballot box, there would be a polite reminder suggesting that you had forgotten to put your vote in. The proper response would be to smile politely, say “no, thank you”, and pass on.

What then? Any attempt to physically prevent you from leaving, or to wrest the ballot paper from your grasp, would be an assault. A wise clerk would simply ignore the event. But undoubtedly some busybody would leap up to call the nearest police officer and demand that you be arrested for an alleged breach of the Electoral Act.

If sufficient people were prepared to put up with the inconvenience that all this would cause, it would be a waste of the time of the of the police and the magistrates courts. But the point of the absurdity of our compulsory voting system would be effectively made, and the probability is that such protestors would eventually be acquitted anyway, which would be very embarrassing for the Electoral Commission.

It is a ridiculous system that we have created in Australia where the unwilling, the uninterested and the uninvolved are dragged along to the polling booth and forced to cast a vote for someone they either don’t know or don’t like, to achieve a result about which they don’t care. It is even more ridiculous when the votes of those too stupid even to number a ballot paper correctly are recorded. (A party which depends on such votes betrays its deep contempt for its own supporters.)

To vote for a lunatic independent is one way of protesting against parties, politicians and this silly law. To refuse to surrender your ballot paper to the ballot box would be a more considered and altogether more respectable, way of achieving the same thing.

***
4.
Padraic P. McGuinness, “Silenced by a mouthpiece of democracy,” The Australian, March 10, 1993, p. 15.

Do you know that I am forbidden by law, under pain of six months’ jail, from giving you certain kinds of advice regarding Saturday’s election? Moreover, some candidates in the election are forbidden from telling their supporters how they think they should vote.

This is yet another of the nasty little forms of censorship of which this Government has become altogether too fond; however the Opposition has nothing to be proud of, either, in this respect.

Last December the Government slipped an amendment to the Commonwealth Electoral Act through Parliament, unopposed (and I must add unreported by the media as far as I can discover), among a number of machinery provisions.

This adds a new section to the Act, section 329A, which reads: “A person must not, during the relevant period in relation to a House of Representatives election under this Act, print, publish or distribute or cause, permit or authorise to be printed, published or distributed any matter or thing with the intention of encouraging persons voting at the election to fill in a ballot paper otherwise than in accordance with section 240. Penalty: Imprisonment for 6 months … In this section ‘publish’ includes publish by radio or television.”

Section 240 says that in a Reps 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 3, 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”.

What at first glance this seems to be about is stopping the suggestion which has formerly been put forward that the casting of a preferential vote could be avoided without invalidating the first preference by, for example, voting 1, 2, 2 etc. But it goes much further. What section 240 says is that you may not vote informal. And what section 329A adds to this is a prohibition of anyone advocating an informal vote.

Deliberate informal voting is, of course, a protest of some kind. It may represent total disgust with all the candidates and parties, or it may represent a desire to express disagreement with the fact that voting is compulsory. It may represent more.

What it represents for the couple of Melbourne anarchist candidates who have nominated for the Senate is a ban on their advocating their view that parliamentary or representative democracy is a perversion of what they perceive of as being true democracy, direct democracy (town meetings, etc). That is, these two candidates will be sent to jail if they publish their views of the political system and ask their supporters and anyone else to vote informal. Moreover, anyone in the mainstream media who reports these views is also liable to a jail sentence.

Thus, even though I do not agree with their views, and I do not endorse their recommendation that people would do better to vote informal, it is conceivable that I could be charged with an offence under the Act for even writing this column.

Of course, it is highly unlikely, given the High Court’s decision on political free speech, throwing out the oppressive and anti-democratic political advertising legislation, that any court would enforce section 329A of the Act. It is so clearly in contradiction to the High Court decision — that is, it is so clearly unconstitutional — that even a magistrate’s court could be relied upon to throw out any prosecution brought under this section and would probably award costs against the Commonwealth.

Nevertheless, the existence of this section is offensive, since it is clearly intended to intimidate not just minority, eccentric political movements (which have every right to exist — indeed tolerance of them is one of the hallmarks of democracy), but also the media.

After all, you do not have to be an anarchist to believe that people should not be compelled to vote, and have every right if compelled to vote to do so in a way which deliberately renders their vote worthless. And indeed there are frequent electoral contests in which, while having no objection to the political system in general, a person might wish to vote for none of the specific candidates offering.

Moreover, there is in the United States the common phenomenon of a “write-in” vote, whereby people write the name of the person they would like to be voting for on to the ballot paper, even if that person has not nominated. Such an action is illegal in our great democracy and no-one is permitted even to advocate it.

All this may seem trivial, but it is not. There is a great deal of room for disagreement about the desirability of compulsory voting, and this oppressive censorship is simply one of the results of that compulsion. Nor is the anarchist proposal of direct democracy as silly as it at first looks. In principle, there are many issues of local government which could as well be determined by a town meeting of all the residents of a small area as by an elected council. But this is clearly inapplicable to national or regional issues. Or is it?

It is quite clear that the technical means to achieving a much greater degree of direct democracy than we have now are in the process of being brought into being. Once we have virtually universal fibre-optic cabling to households, not only does the technical possibility of having many more television broadcasters exist (and it is obvious from the Government’s outrageous decision to block microwave broadcasting that it wants to keep control over the means of communication) but also interactive television becomes a reality.

This means that it would be possible for voting to be conducted from the home, using a simple keyboard, as often and on as many issues as we liked. If a referendum can be conducted in such a manner instantaneously and for virtually nothing, why not have a list of referendum issues every week? Why not present laws directly to the people to be passed or rejected? This is in effect what the advocates of “direct democracy” are talking about. That they wish to dramatise their case by advocating a refusal to co-operate in the present system is perfectly legitimate — but not, now, legal.

Personally, I believe that representative democracy is far to be preferred to direct democracy, even when the technical possibility comes into being. So far, at least. But support for some aspects of direct democracy, for example the notion of a popular initiative to put referendum questions to the people, is growing and indeed one of the best aspects of our constitutional system is the fact that the whole people votes on proposed changes to the wording of the Constitution.

There is a nasty strain of boof-headed authoritarianism in Australian politics, and especially the Labor Party, which this amendment, sneaked through so soon after the High Court declared that our Constitution requires free political speech, reflects. The Coalition and the Democrats should both be ashamed for having supported it; and the press once again has shown itself to be a watchdog which is usually asleep on the job.

***
5.
Padraic P. McGuinness, “Labor Party’s bully boys appear in formal dress,” The Australian, May 26, 1993, p. 11.

Could we be facing another general election this year? That possibility is a real one, as a result of a High Court action launched by former anti-Vietnam War activist Albert Langer.

Langer, who describes himself rather delightfully as “researcher and agitator”, has persuaded the High Court to agree to hear a case challenging the constitutional validity of section 329A of the Commonwealth Electoral Act, introduced last December, which makes it an offense punishable by jail to advocate an informal vote. (I wrote about this infringement of free speech in The Australian, March 10.) On April 19 Justice Deane agreed that Langer’s claim that this section of the Act contravenes the implied right of political freedom of speech which was established by the court last year should be determined by the full court.

Despite the apparently convincing victory of the Labor Party at the polls on March 13, the victory was in fact achieved only as a result of a number of closely contested polls. There was a reduction in the informal vote, and in many cases the reduction was larger than the majority of the successful candidate. It seems, therefore, that the infringement of free speech involved in section 329A may have affected the outcome of the election.

If it is true, for example, that many of those who might have been persuaded to vote informal instead voted for the Labor Party, it would seem that the Government pushed through an amendment to the Electoral Act which it should have known, following the High Court’s free speech decision, to be unconstitutional, in the expectation that no challenge to the section could be brought in time to invalidate it before the general election. If so, it can bluntly be said to have stolen the election.

The only way that this can be established is by candidates or electors in narrowly won seats to dispute the election. This has to be done by June 4 at the latest since that is the last date permissible after the return of writs under the Electoral Act. If this is not done, even if the High Court subsequently strikes down section 329A, the Government will have got away with winning an election partly through illegal intimidation of part of the electorate.

If however petitions are lodged with the High Court to invalidate the election results in a sufficient number of electorates, or even in all electorates, the High Court might find itself in the position of invalidating section 329A and therefore (acting as the Court of Disputed Returns) having to order a new election.

Certainly it is difficult to see how the court could easily dismiss a petition from Warwick Smith, who lost his seat of Bass by such a slender majority, to have a new poll ordered in view of the illegality of the Government’s ban on advocacy of an informal vote.

As Chief Justice Mason said in the free speech case (Australian Capital Television v. Commonwealth of Australia) last September, speaking of the implied guarantee of freedom of political communication in a representative system of government, “the court must scrutinise with scrupulous care restrictions affecting free communication in the conduct of elections for political office for it is in that area that the guarantee fulfils its primary purpose”.

What would happen if the court ordered a new general election? Unhappily for the Coalition, even though it has dumped the goods and services tax it is in such a state of disarray there is no certainty that the electorate would wish to give it another chance. Certainly electoral support has swung to the Government in the post-election period. Nevertheless it would be fascinating to see just what proportion of the electorate might opt for an informal vote in these circumstances.

It is even possible that the High Court might be persuaded to consider the whole issue of compulsory voting in the context of the Government’s renewed attempt at political censorship and bullying of the electorate so soon after the rejection of its attempt to ban or restrict political advertising. Is it a restriction of political freedom to compel a person to vote, particularly if he or she would in any case vote informal if forced to the polls?

As Chief Justice Mason also said: “Freedom of communication in relation to public affairs and political discussion cannot be confined to communications between elected representatives and candidates for election on the one hand, and the electorate on the other. The efficacy of representative government depends also upon free communication on such matter between all persons, groups and other bodies in the community. That is because individual judgment, whether that of the elector, the representative or the candidate, on so many issues turns upon free public discussion in the media of the views of all interested persons, groups and bodies and on public participation in, and access to, that discussion.”

It would seem obvious that the restriction of advocacy of informal voting would be invalidated by this criterion, but it might also be considered that compulsion of a particular form of communication, the casting of a vote, might also be invalidated. Surely the right to vote is only meaningful if there is a right not to vote? (The right to free speech implies a right to be silent.)

Langer argues that as well as being unconstitutional, section 329A and the actions taken by the Australian Electoral Commission constitute intimidation of him, of others like him who have advocated an informal vote, and of any electors who might wish to vote informal or refrain from voting.

Thus section 28 of the Crimes Act provides that “any person who, by violence or threats or intimidation of any kind, hinders or interferes with the free exercise or performance, by any other person, of any political right or duty, shall be guilty of an offence”. Arguably, there is also a common law offence of intimidation, which would void an election in which there had been “general intimidation”.

That the Commonwealth Government was aware of the legal hazards of its amendments to the Electoral Act may have been indicated by the remark by Senator Bolkus, then the minister for suppressing free speech in election campaigns, that “we have had enough instances of playing Russian roulette with the High Court in respect of electoral legislation in recent days” (Senate Hansard p.3926, December 1, 1992).

As has been remarked before, this Government seems to have an inclination to interfere in the ordinary rights and liberties of the Australian people, from the attempts to introduce a national identity card to the bans on political advertising and advocacy of informal voting. Even though Senator Bolkus has now been shifted to another ministry, there is no reason to believe that the Government’s authoritarian instincts have been brought under control.

This is a task which will depend on eccentrics such as Albert Langer and others who have an axe to grind, however marginal to the mainstream of political activity. He deserves support in his case, and the Opposition ought not to neglect the opportunity to challenge at least the marginal seat results at the last election. They had better start moving fast — they have only 10 days in which to act.

***
6.
Padraic P. McGuinness, “It’s time to stop dragging the unwilling to the polls,” The Sydney Morning Herald, September 30, 1994, p. 13.

Was it a mistake to lower the voting age to 18, and should we consider raising it again to 21? This question must be asked after The Reader’s Digest survey which reveals how few 17-year-olds have any grasp of the most basic information about current affairs and politics, even as they are on the threshold of registering, or being forced to register, to vote.

The voting age was lowered to 18 back in the days of the Whitlam Government — in those days, the cult of youth was at its peak and it seemed obviously desirable to everybody that the young, since they seemed to be achieving political consciousness early, clearly deserved the vote. The emotional slogan was that if you were old enough to die for your country you were old enough to vote. There is a certain lack of logic about this proposition. In any case, it would have been more sensible to raise the age for military service.

The move to lower the voting age was world-wide, since the cult of youth also was world-wide, and many of the young were caught up in the anti-Vietnam war movement (some never got over it). The United States subsequently amended its Constitution to entrench 18 as the voting age. One of the many dishonest features of the 1988 referendum propositions in Australia was that the one person-one vote question had, tucked away in the small print of the bill for which it asked approval, entrenchment of the 18-year-old franchise. But since the referendum questions were overwhelmingly defeated (as Paul Keating has yet to discover, not everybody likes buying a pig in a poke), the voting age still can be changed by simple legislation.

However, this would be unjust to the many young people who are well-informed when they turn 18, and who certainly are as well-equipped to vote as many of their elders. That they are not up on all the detail of domestic politics is often because they have more serious matters to think about, and dismiss Australian politics as insignificant. After all, when you are immersed in the serious study of the French Revolution, the Russian Revolution, and the origins and course of the Vietnam conflict, as many 17-year-olds studying history at school are, the homegrown article is a bit boring.

These students would have no difficulty in acquiring the information needed for an informed vote when they need it, if they have not already acquired it in discussions with family and friends. More worrying are those people of all ages from 18 on who are not interested in politics, will never be interested, and do not want to know. So perhaps the real issue is not whether 18-year-olds in general should have the right to vote, or are able to use it sensibly, but whether anybody of any age who does not care about politics and does not want to vote should be compelled to do so.

Where is the sense in forcing the ignorant and the uninterested to the polls? Thus rather than forcing 18-year-olds to register, it would be better to let them decide when and if they want to vote. There is a fairly important democratic principle involved, namely the right to be left alone by the political system. To many people, the happiest and most peaceful democratic society is one in which there is no necessity to be involved in any kind of political action or participation. George Orwell understood this well, as in his essay on Henry Miller, “Inside the Whale,” where he expressed his admiration of Miller’s remoteness from political issues. A truly free society is one in which politics can be safely ignored. Unfortunately, not many people have lived in such societies but with all our problems we are nearer that kind of freedom than most. The important thing is to have the right to an effective vote when you want to use it.

But just as freedom of speech must entail the right to remain silent, so the right to vote is a genuine democratic right only if it is not compulsory to exercise it. And we stray very far from both freedom of speech and freedom not to vote when it is forbidden, as under the present electoral law, even to advocate refusal to vote or an informal vote.

The real issue with ignorant 17-year-olds as well as ignorant 40-year-olds is that they should not be obliged to vote. Their votes will not be sensibly cast. The reason, however, why both major political parties favour compulsory voting is that it saves them a lot of money and effort. In more democratic societies, it is necessary to persuade people to vote in the first place, to convince them that it is important. Happily, there is no-one in Australia who wants to prevent any group or class of people from voting. Our parties much prefer to herd the voters to the polls like sheep, and to try to persuade them to vote on the basis of empty promises or traditional loyalties. That is not very healthy.

Nor is there much to be gained from the various proposals for civic education in schools or citizenship ceremonies for those about to achieve the invaluable privilege, as well as right, of voting. Compulsory voting persuades no-one to do their civic duties. Teaching people about politics is fine so long as they want to learn but the schools are the worst place to do it.

First of all, few teachers are adequately equipped to do so and especially not those who feel most involved in political matters, since they are more likely to deliver political homilies than to give useful and unbiased instruction in the nature and workings of our political institutions. Second, to those who most need to know, schools are the worst places to deliver instruction, since they are not orientated to that form of learning. The Civics Experts Group which the Prime Minister has set up to tell him what kids ought to be taught at schools about politics will get nowhere unless it recommends, implicitly, that teachers should tell them they ought to be Labor-voting republicans and belong to trade unions.

But as an early school-leaver Keating knows that the real school of politics is real life.

A citizenship ceremony for those reaching 18 seems a good idea to many adults, since it seems the right occasion to deliver a few inspirational words about democratic rights and civic duties.

It is a common, and valid, complaint that all the rhetoric about rights these days is rarely matched with concern for the “republican virtues” of civic responsibility and obligation to the community. Instead, kids plied with naïve descriptions of their supposed “rights”.

However, if you have to introduce people at the age of 18 to the notion that they are part of a community to which they have duties, it is too late anyway.

The only kids who will not make fun of such ceremonies are those who are already hopelessly middle-aged in their outlook.

***
7.
Padraic P. McGuinness, “Leaving well alone,”
The Sydney Morning Herald, December 13, 1994, p. 16.

Naturally the aspect of the report of the “Civics Expert Group” on civics and citizenship education which has received most attention is its indictment of the political ignorance of the Australian community. And the next most noticed aspect is its recommendation that great efforts should be made by the schools to indoctrinate — sorry, educate — our children in what they should know.

The report is supposedly detached and bipartisan. This description can be conceded to it, even though its chairman, Professor Stuart Macintyre, is a well-known ALP supporter and was the convenor of a group which protested against the rather wild accusations made by the Herald-Sun in Melbourne against the Kirner government in its last days. It is perhaps a pity that the same group overlooked bias in favour of that government. But Professor Macintyre, as well as being a mate of the Prime Minister’s speech writer and resident intellectual and book-reader, Don Watson, is a distinguished historian who certainly can put aside his partisan inclinations.

But what he, and his colleagues on the group, have not been able to put aside is a far more insidious bias — that of the professional educator.

Thus they have treated knowledge about the political system and its working as something which is examinable like Politics I at university, and they have subjected a sample of the community to an examination for which they had not prepared as if somehow they should be able to pass such a test of knowledge. Solemnly declaring the population to be not very good students, they have then recommended a remedial course to which the community can be subjected, and to which school students can be subjected in the future.

However, politics and political life are not about learning the basic facts of a system as described in a curriculum. Nor is there any evidence that the teaching of “civics” in any form has ever improved the workings of any political system, or indeed any democratic system. Indeed, there is a good deal of historical and anecdotal evidence for the proposition that whenever any political system has been dominated by schoolteachers it has operated disastrously badly. (One recent example is the performance of the French socialist government in the first couple of years of the Mitterrand presidency.) The prerequisite of any teaching of political institutions in schools is of course a sufficient number of school teachers who are themselves sufficiently well-educated and knowledgeable about Australian politics and history to give a proper account of them to their pupils. Despite the active interest in political matters of many teachers, there is no evidence that they actually know much about the institutional details and workings of the Australian political system, let alone have a close acquaintance with the Constitution.

Indeed, I have often observed that the generation of school teachers which came out of the universities and colleges in the late ’60s and the ’70s were strongly influenced by the fashionable political views of the time, and tended to believe that the Constitution was some kind of capitalist plot, and the institutional aspects of the political system were too boring to pay any attention to. “Power to the people” was always a slogan peculiar to inner-city elites, who were also fond of talking about extra-parliamentary action. It saved a lot of reading and thought. So they have spent a generation instilling misinformation and prejudice into those of their pupils who bothered to listen to their political views.

Not that reading and thought are essential to practical political action; and ordinary people can have a quite acute apprehension of those parts of the political system which they see as important to their own lives. But people have a tendency to economise on the amount of information they use in their daily lives. This is a proposition well-known to economists (there he goes again, appealing to economic rationalism), that it is simply not worth the while of most people to study in detail the promises and prospectuses of political parties, and that therefore they in effect devolve this responsibility onto others. Thus it is perfectly sensible for busy people to deputise other people to do their thinking for them — after all, even the Prime Minister does. What political parties really sell is a package of pre-digested thinking, so that a loyal Labor or Liberal voter, for example, decides early on in life that that is where his real interests or preferences lie, and then votes for that party which seems comfortable with them.

This is certainly not confined to the uneducated or the semi-literate.

Frequently one encounters well-educated people who say that they cannot imagine voting for a party other than the one they have always voted for — this is not a stupid position, since it saves a hell of a lot of effort.

But of course these are usually the same people who claim to be well-informed about politics and political institutions. What they really mean is that they have deputised their thinking to others, and merely parrot the appropriate slogans.

The logical conclusion from the discovery that there is a substantial proportion of the electorate which does not know or care how we are governed is to leave such people in peace until such time as they wish to take an interest.

But we have a law which forces such people to register to vote, and to turn up and have their names crossed off the list on election day. It does not actually force them to vote (but they don’t know that), or to vote formally, or even to read the instructions on the ballot paper.

So they vote for the party their parents voted for, or use some such rule of thumb. Now that we have been told that such people don’t know what they are doing, instead of drawing the sensible conclusion and leaving it up to them whether they want to register and vote or not, it is proposed that they should be subjected to compulsory instruction as well.

In fact, the evidence is that the people of Australia have always made fairly astute political judgments, much as they are disliked by their self-appointed protectors and advocates. Thus it has been perfectly sensible to vote “No” at most referendums, for the simple reason that the proposals put forward have been dishonest. Where a clear, moral proposition has been presented, like the 1967 referendum on Aboriginal rights, a huge majority has been prepared to vote “Yes”, thus proving that Australians are neither racist nor stupid. It is a perfectly rational position to take, that a Constitution (in the most general sense of the word as well as in the sense of the written document) which works pretty well should be left alone. Good political instincts do not score well on tests set by pedants.

***
8.
Padraic P. McGuinness, “A question of free speech,”
The Sydney Morning Herald, February 18, 1995, p. 28.

Pity Judge Bollen of the South Australian Supreme Court. Not only did he become the Aunt Sally of a storm of political correctness when he made a perfectly sensible comment about the role of “rough handling” in some marriages, but now he has to tangle with the most politically incorrect individual on the Left, the anarcho-Stalinist Albert Langer.

Victorian courts in the days of the Vietnam War found Albert a bit much to handle, and the South Australian courts are finding out that he is still the most dangerous legal threat a court can face. Intellectually, of course, Albert is head and shoulders above most of the legal profession in Australia, and now he is making the question of contempt of court into an inextricable legal tangle.

The case centres around the decision of one of Albert’s anarchist mates in South Australia, Patrick Muldowney, to advocate an informal vote at a State by-election late last year. The South Australian State electoral commissioner took out a hasty injunction against him, and when he continued to distribute his leaflets he was charged with contempt. The judge who issued the original order, Judge Perry, has heard argument from Langer as Muldowney’s representative. In this Langer produced a sparkling exhibition of learning and legal gobbledegook, as well as quite an extraordinary amount of insolence. The transcript is immensely entertaining and ought to be included in any future anthologies of legal humour. It is much to the judge’s credit that he kept his temper and allowed a full hearing.

There are three issues: whether the legislation was valid, whether the original order was valid and validly made, and whether in the circumstances defiance of the order constituted contempt. I leave to Judge Bollen the headache of sorting all this out, which he is due to do on February 28.

But Muldowney and Langer have a very important point to make. This is that it is a gross infringement of political free speech to forbid the advocacy of an informal vote, or any kind of vote which does not suit the politicians who have set up the system. Since late 1992, the Commonwealth Electoral Act has contained such a restriction on free speech, which was slipped through almost without debate. It is Langer’s contention that this is incompatible with the present position of the High Court on free speech, and the court has taken him seriously enough after a preliminary hearing to schedule a Full Bench hearing of the case, which will take place in May or June. There is a good chance that the court will argue that the functioning of representative democracy must not only require free speech within the system, but also freedom to make fundamental challenges to the system.

If this happens, the Commonwealth prohibition will be invalid, and anything done under it in the past will also be invalid. In this case there is a State electoral law involved — but the High Court has made it clear that its free speech rulings bind the States as well as the Commonwealth. So the essence of Langer’s argument is that the State prohibition is invalid, and an order under it should not have been made, was improperly made, and that therefore one cannot be in contempt of such an order; moreover, because the issue is before the High Court, it should not have been dealt with by an inferior court.

There is an additional complication. The South Australian prohibition has a different intention from that of the Commonwealth, and was intended to solve a different problem. In the Commonwealth’s case it was a typical example of boofheaded authoritarianism, designed to avoid the problem of advocacy of a “1,2,2…” vote, which is strictly formal but avoids distribution of preferences. The peculiarity of the voting system in South Australian State elections is that parties can register their tickets, and if a voter indicates a clear first preference for a candidate, but his vote is otherwise informal, preferences have to be distributed according to that candidate’s registered how-to-vote card. The Democrats get around this by having two registered how-to-vote cards, so that a dopey Democrat voter has a 50-50 chance of having his preferences go to one major party or the other. If there is a clear first preference and a clear second preference for two different parties with registered tickets, then the electoral office has to distribute an otherwise informal voter’s preference according to both of them. You can see that this gets a bit time-consuming.

In a sensible community, deliberate informal voting should be accepted as a legitimate form of protest, and advocacy of it protected by the right of free, speech. South Australia’s special problem is that there they prefer a low accidental informal vote and a high donkey vote. This is achieved by pretending that voters who don’t know what they are doing when they mark the ballot paper should be treated as if they do. It seems that all the parties agree on this, just as most agree on compulsory voting which forces people who don’t want to vote to pretend to do so.

The situation is analogous to that in NSW, where the Labor Party wants people who cannot be bothered reading the instructions on a ballot paper as to how to vote formally to nevertheless be treated as if they knew what they were doing, and anyone who can’t be bothered even following a party ticket to be treated as if they had. And of course in the Senate election it is now possible to vote for a party ticket just by marking a single box, for those who cannot maintain a sequence of numbers. In the ridiculous Canberra election taking place today, not only are the donkeys encouraged to vote formally but they will be electing other donkeys. The Hare-Clark system now being used there replaces the “modified d’Hondt” system of the last election, and ensures that Canberra will continue to justify the abolition of self-government.

One element in the many humorous aspects of the South Australian litigation is the fact that by giving a full and courteous hearing to the attempts of a couple of anarchists to bring the electoral, and now the court, system into ridicule, the South Australian courts, as well as the High Court, is in fact disproving the essential allegation of the anarchists, that there is no real liberty under the rule of law. In fact, so far the courts in this matter have acted in accordance with the highest principles of the rule of law, which is in the last analysis the only guarantee of liberty. And, paradoxically, Langer and his mate are showing far more true respect for the judiciary than those who merely abuse it and talk in sinister tones about re-educating judges to do what they are told.

***
9.
Padraic P. McGuinness, “Troublemaker Langer challenges the whole Federal election,” The Sydney Morning Herald, February 2, 1996, p. 16.

According to the law, our free speech on electoral matters is strictly limited. Section 329A of the Commonwealth Electoral Act threatens six months’ jail to anyone who encourages a voter at the Federal election to cast his or her vote other than in accordance with section 240, that is voting 1, 2, 3, 4 etc, in full order of preference for all candidates.

That is, it is a punishable offence, according to law, for anyone to encourage a voter to vote informal, or to vote in such a manner as to distribute no preferences, even if the latter is a formal vote. I believe that this is a fundamental interference in our political liberties and the freedom of the ballot. We are entitled to be fully informed, and to vote as we like.

There is at present a case before the High Court dealing with all these matters. This has been brought by former Maoist (now he describes himself as an anarcho-Stalinist) Albert Langer, who on Wednesday ran an advertisement in a national newspaper defying section 240, and advising people that they can avoid giving preferences to candidates they dislike quite legally. He is right.

It is both legal and formal to vote on a House of Representatives ballot paper 1, 2, 2 … instead of 1, 2, 3 … Such votes will count as legal votes for the candidate against whom you mark 1, but no preferences can be distributed. So if you hate both the major parties, and want to vote Democrat, Green or Flat Earth so as to ensure that in the final analysis your vote does not end up helping either Labor or Coalition, you can ensure this by voting 1 for the candidate you want, and the numbering all other squares 2. This is confirmed by section 270 of the electoral act, and admitted by the Australian Electoral Commission in its Scrutineer’s Handbook. So optional preferential voting is possible in House of Representatives elections.

Langer’s second string, and here he is obviously right, is that if freedom of political speech is an implied right under our Constitution, as the High Court rules in 1992, then it cannot be permissible for the Parliament to forbid the advocacy of informal voting.

But being a determined and highly ingenious troublemaker, he does not stop there. He has developed a convoluted, indeed highly questionable, but nevertheless not unreasonable, line of argument that preferential voting is incompatible with the requirement of section 24 of the Constitution, which provides that the House of Representatives must be composed of members “directly” elected by the people. He argues that a preference distributed to a candidate other than the voter’s first preference is in fact not a direct vote. He goes further, and argues that no system of single-member of electorates permits a direct election so long as there are more than two candidates and preferences are distributed.

The only acceptable system would be one of proportional representation.

Nor is that all.

Section 274 of the electoral act requires that a candidate shall be elected to the House if he or she receives an absolute majority of the formal votes cast. If there are sufficient numbers of votes in the 1, 2, 2, form cast in favour of a minority candidate, this makes it impossible for any candidate to receive an absolute majority of valid votes by means of preference distribution. Therefore, Langer argues, such a candidate is invalidly elected. Moreover, in conjunction with the requirement of the Constitution regarding direct election, he argues that whenever a candidate obtains an absolute majority only as a result of distribution preferences, the candidate is not validly elected, and the whole election under such a law is invalid. He even throws in the “paradox of voting”, which is well known to social choice theorists, which establishes in essence that preferential voting can produce inconsistent results, in which nobody gets a clear, absolutely majority. This would get the High Court and Parliament into deep waters indeed.

In a nutshell, Langer argues that the High Court should decide that substantial parts of the electoral law are invalid and unconstitutional, which means that the result of the March 2 election should be declared void and a new election held in accordance with the Constitution.

This last, though ingenious and entertaining, is drawing a very long bow.

It is difficult to see the High Court declaring an election void for these reasons. But it is also difficult to see how the High Court could defy Langer’s fundamental point that the prohibition on advocacy of informal voting, and especially on the advocacy of optional preferential voting rather than voting in accordance with section 240 of the act (that is, full compulsory preferential voting), is incompatible with freedom of political speech.

Part of Langer’s action is directed against the Commonwealth electoral law, part against the South Australian law, on appeal from an adverse ruling by the South Australian Supreme Court. In the course of this litigation he has been, in effect, bullied by the Electoral Commission, required to produce substantial money sureties in an effort to deter him, and certainly not been adequately answered.

It seems unlikely that his case will be heard by the High Court before the March 2 election, despite its importance for minor parties. Probably wrongly, Langer believes that nevertheless he is not bound by any injunction restraining him in the meantime from encouraging people to vote informally or non-preferentially. But, just as resisting an arrest which a court subsequently decides was wrongful is not an offence, it may be that he is even right about this. It may be that Albert Langer will shake our electoral system to its foundations.

***INTERMISSION from ROBERT HAUPT***
10.
Robert Haupt, “Unforgettable Albert Langer,”
The Australian Financial Review, February 16, 1996, p. 14.

Political morality, it is said, is quite a simple matter when you get down to it: all you have to do is to choose between your principles and your friends.

Anyone who lived in Melbourne during that time of troubles from 1964 to 1972 will remember the principles that were at stake: conscription, capital punishment and (as a spin-off from them both) freedom of expression. We marched, we sang, we held vigils, we clandestinely published newspapers, on one of which (longer ago than he might care to remember) this paper’s Ward O’Neill cut his cartoonist’s teeth.

Life, liberty and the pursuit of happiness were our credo. The life was Ronald Ryan’s, the last man hanged in Australia, the liberty was to publish what we damn well liked (especially if it reflected ill on Henry Bolte, his executioner, and the Melbourne Herald, his executioner’s songwriter). If the third principle lay, for us, more in the pursuit than the happiness then it at least kept us busy. Oh, we were well supplied with principles.

For friends, we had Jim Cairns and Frank Hardy and the Waterside Workers’ Federation who, when their ranks moved down the Bourke Street hill from the Spencer Street end to meet up with ours marching down from Spring Street, became the other half of that impossible dream (the fallacy of it having been exposed by de Gaulle in Paris in 1968): the worker-student alliance. Threatened with dismissal by the Herald and Weekly Times if we took part in the anti-war demonstration, we managed to get a prime spot in the manifestation, right outside Myer’s. A matron who emerged from that emporium, where my grandmother had sold millinery, found her way inexplicably barred by a hundred thousand people, all sitting down. Like Mrs Gamp with only a broom between her and the Atlantic Ocean, she lay about her to right and to left with her handbag.

All this, I thought, had been consigned to the garbage dump of history, along with beards, flares, napkin-sized neckties and a range of shoes the memory of which even a quarter-century later brings bumps of shame to the skin. But, no. There’s no escaping it. We still have Albert Langer.

Like a sub-cutaneous fungus, Albert Langer gets you scratching even before you know you’re doing it and long before you’ve worked out why. Somewhere in appearance between Abimael Guzman, the founder of Shining Path in Peru, and P.P. McGuinness — as narrow a gap in the ranks of the Karl Marx impersonators as you will see in your lifetime — Langer was known to us all for his speeches of Castroian length. Ready to violate every rule of length, he was a one-man sit-in. Remember sit-ins? Now, for reasons of law that can only attract the word asinine, Albert Langer has been put in jail again. His fellow prisoners ought to be freed immediately. If they had been in the Gulag, that would be their right under the Helsinki Accords. In Pentridge, it is probably their right under the Geneva Convention. No lifer who has done nothing worse than knock off his old mum deserves being locked up next to Albert Langer. We of the sixties have forgotten: we spent years locked up next to Albert Langer.

So, with a tub of Dulux and a five-inch brush I head back out to the railway viaduct that slashes through Hawthorn and Camberwell, and with a heavy heart begin to write “FREE LANG …” Why can’t the law see that the jailing of zealots is fertiliser to zealotry?

***
11.
Padraic P. McGuinness, “Mr Langer is entitled to be an agitator, not a prisoner of conscience,” The Sydney Morning Herald, February 17, 1996, p. 40.

“Mr Langer is entitled to be an agitator.” This, with the appropriate change of name, is a famous statement by the late Justice Lionel Murphy of the High Court in one of his many judgments which still reverberate through the law and which have had enormous influence since his death.

Albert Langer, a genuine political eccentric, has been sentenced to 10 weeks’ jail for refusing to shut up about his political beliefs and the deficiencies of the electoral system as he sees them. This is a disgraceful stain on our democracy, all the more so since it takes place in the middle of a hard-fought election campaign. Langer’s fate will tend to support his view of the major parties as merely Tweedledum and Tweedledee.

Of course Langer brought it on himself. Not only has he been extremely disrespectful about the Australian Electoral Commission, the courts and the law, but he has expressed that disrespect forcefully. However, the fact that he has been prepared to devote great effort to the study of the law and the use of the courts betrays a fundamental respect for the rule of law which does not seem entirely matched by those whom he criticises.

He has been sent to jail for contempt of court, for refusing to obey an order by a judge of the Victorian Supreme Court that he should shut up about his belief that it is legal and formal to vote other than according to section 240 of the Commonwealth Electoral Act; he is not allowed to tell other people how to do so. It is absolutely true that Langer is in contempt of court.

The High Court recently ruled that section 329A of the Electoral Act, which forbids the encouragement of people to vote other than formally or in accordance with the Parliament’s preferred method of voting, that is in strict and exhaustive preferential order, is not incompatible with its own asserted implicit constitutional right of political speech. In what seems rather a cowardly dodging of the urgency of the issues, it has not yet given any reasons for this decision. It will be intriguing when it does so to discover by what reasoning it argues that it is permissible to criticise political and government institutions and the holders of high political (and judicial) office more strongly than the normal defamation law would allow, but not permissible to try to persuade people to cast their votes other than as the Parliament wishes.

Given that judgment, however, the law undoubtedly is that it is illegal to advocate an informal vote, or a formal vote which numbers the names on the House of Representatives ballot paper say 1,2,3,3,3 … which would have the effect of avoiding giving preferences to other than the first two names, and which might deprive the winning candidate in an election of an absolute majority. In such a case, a supplementary election could be required.

So in granting the Electoral Commission’s application for an injunction telling Langer to be quiet, Justice Barry Beach was strictly within the law.

And Langer is in contempt of court for having continued to speak out.

But in this case the law is an ass. First of all, the appalling seriousness of gagging free political speech in a democracy and in time of peace cannot be overlooked. For this, Parliament and the High Court must bear the blame. Second, the severity of the sentence imposed on Langer is such as to make him a political criminal, a genuine prisoner of conscience. The various advocates and guardians of civil liberties in this country are slowly bestirring themselves to protest, and it is to be hoped that Amnesty International includes Albert Langer in its published lists of prisoners of conscience all over the world. And where are the human rights advocates? The law of contempt in this country is supposed to be robust. Its main purpose is to protect the courts from physical and verbal intimidation, to remind recalcitrant of the authority of the courts, and only secondarily to maintain public respect for them. When it is used excessively in cases where there is no real harm being done, its use itself tends to bring the courts into contempt.

Yes, Langer is in contempt of court. To demonstrate his power to do so the judge could have sentenced him perhaps to a day’s detention, a symbolic penalty. If Langer represents such a danger to our political system and the current election campaign that the polity would suffer grievous damage from allowing him to speak during it, the judge might arguable have put him away for the rest of the campaign. But he has done far more than could ever be justified on any grounds of protecting the authority of the courts or of protecting the community from potential harm. He has punished Langer for his views.

Let there be no doubt about it. Section 329A is a bad law, even if upheld as valid by the High Court. If Langer’s claim is correct that to vote other than according to section 240 of the act risks voiding an election, then it is quite within the powers of Parliament to change the law accordingly without at the same time gravely infringing our right of free speech.

Mr Langer is entitled to be an agitator, and Justice Barry Beach has ensured that he is also a martyr. The long-term result of this, as the community realises the true damage Langer’s punishment has done to our democracy, will be far more effective in achieving Langer’s aims than any of his own propaganda could have been. He should be freed immediately.

***
12.
Padraic P. McGuinness, “Why we can’t encourage Langer’s way, but can say ‘free Albert!’,” The Sydney Morning Herald, February 21, 1996, p. 14.

The High Court’s reasons for validating section 329A of the Commonwealth Electoral Act, released yesterday, are unconvincing. They will certainly give no comfort to Albert Langer, languishing in jail, or at least in the jail hospital, for having defied the court which told him to shut up and imprisoned him for refusing to do so.

In essence, the majority of the High Court has decided that section 240 of the act, which tells people how they should mark their ballot papers for the House of Representatives, is valid and that therefore it is within the powers of the Parliament to legislate to impose penalties on those who encourage voters to do otherwise. It has decided that it is not an infringement of the implied rights of political communication which the court discovered in the Constitution in 1992. We are still denied free speech.

Justice Gummow puts the issue most clearly, when he says: “The constitutional implication of freedom of political communication has been formulated in the authorities as operating in aid of representative government. It does not facilitate or protect that which is intended to weaken or deplete an essential component of the system of representative government. It cannot be inimical to representative government to forbid intentional conduct comprising advocacy of the casting of a vote in such a way as may be an ineffective exercise of the franchise.” This is a dangerous doctrine indeed. It could mean that it is within the power of the Parliament to legislate to repress the advocacy of a whole range of radical political doctrines, from anarchism through communism to absolutist monarchism. It might even be used to prevent the advocacy of direct voting on legislation by electronic means, which will be feasible in a very few years. That is, freedom of speech is restricted to those who support the existing system.

This is not the conclusion drawn by the judge, who says that section 329A “does not impose any restriction upon political discussion generally nor, more particularly, upon discussion as to the suitability or disadvantages in the voting system. Rather it is directed at the particular processes or mechanism by which the franchise is exercised and the vote is cast”. That is, we are allowed to criticise the system of voting but we are not allowed to encourage people to refuse to co-operate with it. Hardly a meaningful freedom.

It is, of course, premature to place Justice Gummow on the two-dimensional chart with the axes radical-conservative and libertarian-authoritarian. But it is clear that he is, on this judgment alone, clearly in the authoritarian conservative quadrant, of which the only other inhabitant in recent times has been Justice McHugh. The latter develops in his judgment the interesting point that section 240 itself has no penalty for its breach. So you can get away with voting any way you like, informal or 1,2,2, etc — since it is a secret ballot no-one could tell, anyway — but you still may not encourage people to breach a “statutory direction”.

This is a peculiar concept. Section 240 is not an enforceable law, but it is a statutory direction, and it is within the power of the Parliament to punish somebody for encouraging the breach of a law which is not punishable to breach. So if I encourage you to perform an act which the Parliament does not like but for which there is no penalty, I can be punished.

Justice McHugh has clearly laid the basis for a whole new extension of the powers of the Tax Office. It is not illegal to avoid tax, but why not make it illegal to encourage people to do it? Why not jail accountants and lawyers who encourage their clients to enter legal tax minimisation schemes? When it comes to telling people how they must vote, there is an authoritarian note in all the judgments of the majority. As is often the case, the dissent is the most fruitful reading. This confirms what has been apparent for a long time, that Justice Dawson, while certainly a judicial conservative, is not by any means an authoritarian, but the sole occupant of the libertarian conservative quadrant.

Justice Dawson did not agree with the reasoning of the majority on the implied freedom of political speech, which he could find nowhere in any reading of the Constitution. I suspect he would prefer to base the right to free speech on the common law. But, he says, on the reasoning of the majority in the 1992 cases section 329A is clearly invalid: “I must confess that I am unable to see how political discussion can be confined to mere imparting of information and why it should not extend to the furnishing of information with the intention that it should be used.

“Indeed, exhortation or encouragement of electors to adopt a particular course in an election is of the very essence of political discussion and it would seem to me that upon the view adopted by the majority in the earlier cases, s329A must infringe the guarantee which they discern.”

But Justice Gummow does offer a scrap of comfort to Albert Langer. He points out the Solicitor-General agreed that it is not an offence against section 329A to encourage people to write or draw on the ballot paper in addition to following the statutory method of voting. So I am perfectly free to encourage you to vote carefully, formally and numbering all candidates in order of your preference, and in addition to write on your House of Representatives ballot paper the words “Free Albert Langer!” The vote will be formal, and your opinion will not go unnoticed.

***
13.
Padraic P. McGuinness, “We can vote for Tweedledum, Tweedledee and Albert Langer,” The Sydney Morning Herald, March 2, 1996, p. 34.

Today I shall be voting for Albert Langer. Not, of course, for office — if he were standing there is no way I would vote for him, much as I find him an amusing and intelligent man. But on both ballot papers I shall write “Free Albert Langer”, because he is a prisoner of conscience, serving a viciously heavy jail sentence for speaking his mind.

Of course, Langer was absolutely delighted that his purpose — to publicise his essentially anarchist view of the electoral process — was so well-served by the heavy-handed plodders of the Australian Electoral Commission who could not rest satisfied with the decision of the High Court against Langer’s arguments, but had to try to gag him. He has been even better served by Justice Barry Beach of the Victorian Supreme Court. As Kerry Packer once said, “You only get one Alan Bond in your life, and I’ve had mine,” so Langer can now say “You only get one Barry Beach in your life, and I’ve had mine.”

Thanks to the learned judge, Albert Langer is now something of a hero to anyone who genuinely believes in free speech, a celebrity in the media which for the most part, myself apart, assiduously ignored him when he was a lonely voice in the wilderness. He will never get another Barry Beach, since no judge will, whatever Langer does short of actual offence — and he really is a mild, inoffensive man — ever be so strict again to a harmless political eccentric.

Instead, Langer will decline again into obscurity of the kind which he has enjoyed since his last joust with laws designed to punish the unorthodox and the dissenter. But he will have had one great success — it is now certain that at some stage in the not too distant future, Parliament will quietly remove the obnoxious section 329A from the Electoral Act.

Apart from writing my views on Langer’s liberty — I did enjoy talking to a former commo mate the other night who proposes to write “Keep Albert in” on his ballot papers — how shall I vote? This time, for the sake of liberty, I shall certainly vote on the House of Representatives ballot paper 1,2,2,2 etc, with my first preference going to the candidate I dislike least. This, as has been established, is a valid formal vote.

Normally I would vote as laid down in section 240 of the Electoral Act, that is, 1, 2, 3, etc in order of preference, in my opinion, our system of preferential voting is one of the best and most democratic voting methods in the world, which prevents the undemocratic outcomes of voting systems such as Britain’s first-past-the-post ballot.

Whatever you think of Margaret Thatcher, it is a chastening thought that with a preferential voting system she would probably have never been Prime Minister; Britain would probably have been governed in those years by a Lib-Lab coalition.

It is also worth remembering that Thatcher would have been removed from the scene much earlier if the British Labour Party had not pig-headedly refused to make a deal with the Liberals, or the breakaway Social Democrats, and committed itself to preferential voting.

But at this election we should show the Electoral Commission that its bungling is not appreciated.

Voting for the Senate, it is important to remember that the Langer approach would produce an informal vote. To cast a valid vote, you must mindlessly endorse the complete ticket of one of the parties, or think for yourself, numbering every box under the line consecutively.

My own preferred method of voting in Senate elections is to vote for candidates regardless of party, policy or platform, according to their personal merit.

This is not at all a swinging vote, nor is it usually a vote for one of the ratbag parties such as the Democrats, the Greens or the No Aircraft Noise party in Sydney. Policies are not determined at elections but in the process of government.

Such an approach does not involve cynicism concerning either parties, policies or the democratic process. It is merely a realistic recognition of how democracy actually does work, and it also means that when the parties do throw up candidates of unusual value for the Senate, it is worth ignoring partisan loyalties to vote for them.

Sometimes, of course, the parties produce a particularly loathsome bunch, especially as, increasingly, the Senate is used as a political reward for time-serving party officers and other hacks. Not all of these are worthless — just most of them. The height of cynicism at this election is manifested by the NSW Labor Left, whose leading Senate candidate, Bruce Childs, has undertaken to step down during his term to hand over his seat to George Campbell of the metalworkers’ union. Innocent voters are not being told that if they vote the Labor ticket, one of its candidates is not even listed on the ballot paper.

Because of the importance of voting, and formal preferential voting, in our system, it is vital that it should be non-compulsory and optional.

This is clearly not the official position of the Australian Electoral Commission. It is a pity that this body does not spend more of its time protecting the integrity of the system. At the last election there were quite a few votes which were cast illegally on the old principle of “vote early and vote often”. Too many dead people still get to vote with the aid of helpful party workers.

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14.
Padraic P. McGuinness, “Don’t force the vote on those who don’t care,” The Sydney Morning Herald, April 19, 2001, p. 12.

It will take more than Natasha Stott Despoja to awaken young people to an interest in politics, writes Padraic P. McGuinness.

The accession to the parliamentary leadership of the Democrats by Senator Natasha Stott Despoja has been notable mainly for a strange obsession with youth on the part of aging commentators who have made a fuss about it.

However, the really young have so far displayed an almost total lack of interest in the whole affair. A straw poll of a few young people conducted by one newspaper showed that hardly any had even heard of the woman, and one who had had written her off as just another politician — which, indeed, she is.

Not all was indifference, however. A number of Internet chatrooms used by 18- to 24-year-olds revealed a surprising degree of hostility and even contempt for the senator, unrelated to any partisan political judgment.

It is hard to escape the impression that support for Stott Despoja sprang mainly from people much her senior, leftovers of the youth cult, who also wanted to punish the defeated leader, Senator Meg Lees, for having refused to live with the other fairies at the bottom of the garden. Lees accepted that a minor party should have a responsibility to participate in the process of government.

Stott Despoja, by contrast, has never mouthed any but the emptiest of clichés and has learnt nothing since her days in student politics. She is, moreover, typical of one of the worst tendencies of modern politics. She is one of the growing number of younger members of parliament who have never had any real life experience outside politics and who have never done anything but play political games. Neither further study and reading, nor experience in the workforce, nor family and children have ever interfered with their dedication to their own advancement and to the factions or parties through which they have achieved it. They are empty, unformed automatons. And they want to run our lives as a substitute for getting one for themselves.

The lack of knowledge on the part of the 18 to 24s concerning the senator is typical of their lack of interest in politics generally. They have absorbed from the general public a vague dislike of politics and scepticism about the worthiness of politicians, but to a large extent they simply don’t care about it.

The question must arise as to why they should be forced to vote in elections. (Save us the quibble that you need only to turn up at the polling booth and have your name crossed off.) This compulsion is a perversion of democracy which is at the heart of the decline of all the political parties in Australia.

The origins of compulsory voting are shrouded in mystery. No historian has ever written a satisfactory account of the reasons why the Federal Parliament adopted it virtually without debate or opposition in the 1920s.

It made life much easier for the parties (and, subsequently, the pollsters) since instead of having to persuade people to come to them, they had the law drive people like cattle to the polling places.

Electoral effort then only involved canvassing for votes, raising funds and handing out how-to-vote cards. This, combined with increasing antipathy towards politics, has led to a catastrophic decline in active party membership.

The Democrats, who pride themselves on their ’60s-style constitution as well as thinking, were able to rustle up only about 2,500 votes in the national ballot for the leadership of their parliamentary party. There has been a great deal of secrecy as to the details of this ballot, and not surprisingly. They are ashamed of what it shows about their irrelevance as a political party.

Not that the Democrats are much worse than any of the major political parties. These, too, have remarkably low memberships in proportion to the population, and preselection ballots are often a matter of 100 or so people, sometimes much less, meeting in private to determine the candidacy for a safe seat.

Thus, our so-called democracy is in fact a matter of tiny elites deciding on who shall be the members of parliament, and the people in general being forced to the polls to vote (it is hoped) loyally for their party of choice. Stacking of party branches makes the whole business dishonest. The rorts in Queensland were only one manifestation of a corrupt system.

Compulsory voting has its pros and cons. Perhaps its strength is reflected in the Hanson phenomenon, in which a large number of people scared the daylights out of the conventional cheer squads by refusing to toe traditional party lines.

For a while the political elites had thought they had all the likely protest votes corralled safely in the parties of the Left, like the Democrats and the Greens. Now there is a maverick protest vote which is no more irrational than these two, but which refuses to accept their consensus.

The Hansonites, far from wanting to return to the past, have rejected the legacy of the ’60s. Unfortunately they are as little interested in sensible policies as are their counterparts under senators Stott Despoja or Bob Brown.

But forcing discontented people to the polling booth has suddenly become more dangerous for the political establishment. The most powerful of all the ideas advocated by Hanson is the recommendation to her followers simply to vote against the sitting candidate. This will do most harm to the Coalition this year, but the Labor Party had better pray that its impetus diminishes thereafter.

Ultimately, compulsory voting will have to be reconsidered. It is by now too late to lift the voting age once again to 21, but given the lack of interest on the part of most 18- to 21-year-olds it would be a good idea. Disfranchising the fanatics who are recruited in the schools by the mad Left would be no bad thing.

There is, however, a good case to begin loosening the compulsory element by exempting the requirement that people register to vote at 18, putting it entirely on a voluntary basis at least until 21. Then the elderly bullies would actually have to take some notice of what is attractive to young people.

In any case Stott Despoja, at 31, is getting a bit long in the tooth. William Pitt the younger, who became prime minister of Britain at the age of 24, showed what can be done.

***

Further reading:

1. Neville Kennard, “I Don’t Vote,” Economics.org.au, August 17, 2010.
2. The “Voting” entry in Rip Van Australia (1977), by John Singleton with Bob Howard. I think that inspired this: The Electoral Act should allow voters to choose “none of the above” — “Election ‘illusion’,” The Canberra Times, April 21, 1980, p. 9, starring Viv Forbes.
3. And here are two articles by Bert Kelly on compulsory voting: “How to stop the donkey vote,” The Bulletin, February 12, 1985, p. 93; and “Compulsory voting — new lesson in letting sacred cows (like sleeping dogs) lie?,” The Australian Financial Review, September 11, 1970, p. 3.

Lastly, here’s our Paddy McGuinness archive page.