Commonwealth Parliament has been at it again. Late last year it passed a law preventing people from urging others to vote informal.
The section says (in English) that during an election campaign a person shall not encourage other people to vote informal.
Penalty: imprisonment for six months.
Is the Parliament serious? How on earth was this section allowed through. Six months is the maximum penalty for drink driving and is the actual penalty (after trendy remissions and parole) imposed upon armed robbers and rapists. (Indeed, a child rapist, albeit 75-years-old, got a bond in NSW last week).
In the explanatory memorandum, this section is described merely as “”formal”. My understanding of it is that it was intended to stop people from distributing how-to-vote cards urging people to put “”1” for an independent and then to put “”2” beside every other candidate. This would be a formal vote for the independent, but no preferences would be distributed.
However, the words of the section go further. They talk about the printing, publishing or distribution of “”any material” urging people to vote otherwise in accordance with the section that describes a fully formal vote with all preferences marked.
When I say that “”the Commonwealth Parliament has been at it again”, I mean it has again been passing laws in violation of accepted principles of freedom of political expression and freedom of speech.
One would have thought that after the High Court brought down its judgment in the üNationwide News case invalidating the ban on the advertising political matter, the Parliament would not have passed any more laws impinging upon people’s right to engage in political debate.
And what an insensitive time to pass such a law: in the last session before a federal election.
It gets worse. The law is not available at the Australian Government Publishing Service, nor at the tables office in Parliament nor on Scale, the computer legal database. However, Hansard shows it was passed, and the wording of the Act can be discerned from the Bill that went to the House from the Senate for concurrence.
So the law is not generally available.
The episode makes one thankful for government bound by a written constitution. In Britain, Parliament is supreme. If it passes an Act, that Act is law, no matter what. Indeed, before sensible divorce laws were passed in Britain between the wars, people wanting a divorce had to get a special Act of Parliament proclaiming them (as named individuals) to be divorced. That’s taking parliamentary supremacy to an extreme: not a rule of law applicable to everyone, but a law for two individuals.
In Australia, Federal Parliament is not supreme. Its power is qualified by the Constitution. The Constitution, it was held in the üNationwide News case, implies a political system of representative government. The representatives are accountable. That accountability can only be effective if people have the right to communicate with each other about political matters. So any law of the Parliament that prevents that communication is invalid.
It seems to me that the urging of someone to vote “”1” Independent and “”2” for every other candidate is part of that communication. It is a political statement that says the major parties do not deserve any preference and should do obtain votes by default.
After a discussion on Friday about the inadequacies of the major parties, I urged two of my colleagues in writing to vote informally. It was an exercise of that political freedom.
According to the law passed by the Federal Parliament, I am guilty of two offences each punishable by six months’ jail. It is an objectionable law, and is clearly an infringement upon what other democracies would regard as a normal freedom of political speech.
One of my colleagues has reported me to the Australian Electoral Commission for pestering him with my urging to vote informal.
I doubt very much if anything will come of the matter. I doubt if anyone in authority wants to highlight the stupidity of the law or the law’s flagrant breach of what are accepted democratic rights in many other countries. If nothing happens, we can all accept that we can urge others to vote informal to our heart’s content, especially in an election when both sides have demonstrated their contemptible nature so vividly. If something happens, I’m sure the High Court will ultimately put the thought police sternly in their place and reaffirm its excellent message of five months ago: that freedom of speech is alive and well in Australia despite the petty attempts by the major parties to stifle it.