There’s been a bit of chit-chat around the gender-sphere lately about a petition pushing for Germaine Greer’s speech at the University of Cardiff to be cancelled. The petition was based on the fact that Greer had expressed trans-exclusionary views and on the premise that:
Trans-exclusionary views should have no place in feminism or society.
Many of the responses reached a more moderate conclusion, that: Greer should still be able to give her talk in spite of her views on trans gender people. A common opinion is that Greer’s views might “have sold just fine forty-odd years ago” but now are outdated, and that Greer’s view “will die with today’s [Trans Exclusionary Radical Feminist] leaders and in a decade or so, among feminists it will be confined to a few cranks.”
In this post I’m going to argue that Greer’s views ought to be heard because of, not merely in spite of, her views on trans-gender people. I’m not writing in order to specifically defend Greer or her views; she is enough of an intelligent and independent thinker with more than enough experience as a provocateur to defend her own views. Nor is this a post about the issue of academic freedom or censorship; I’ve already made more than a few comments on that issue in the thread over at Alas.
This post will argue that while trans-inclusive views on gender have made an important contribution to our collective understanding and appreciation of gender, and that protecting trans individuals remains an important social justice goal, alternative views on gender, particularly a perception rather than a self-identification based view, will continue to have a significant contribution to make to the gender debate and are an aspect of people’s gender that should not be suppressed. In short I’m arguing for the inclusion of views on gender that might be trans-exclusionary (but not the exclusion of trans-inclusionary views on gender).
[Yes, I realise I never finished the Gaming the Studies series. Life got busy, work, law exams, illness, etc. and I got distracted. This post is related to what has been distracting me for the past week or so, since reading my way through a heap of Hugo nominations from this year and a few previous years as well.
I used to play Dungeons and Dragons, back when time was cheaper, and I still enjoy the adventure of a good fantasy story. Before I started reading the nominations, I had a few seeds, a few elemental ideas, floating around my head for a character I might get to create if I were to ever play again. With my mind awash with creativity from all the great stories I had read, those seeds grew into something else entirely.
This short story is the first substantive piece of fiction I’ve written, asside from the dribs and drabs for D&D, since… well, I was struggling to pass high school English. So it might be a little rough and in need of an edit or two. It’s also a little longer and a little more reflective than I had expected. And it gets a little dark.
I hope you enjoy.]
Drip… drip… drip.
Hearing was always the first sense to return. Pellwyn had noticed the pattern whenever he regained control. He tried to focus with the little energy he could muster to block out the buzzing in his mind. He could hear his raspy breath, rushing in and out. There was the crackle of a fire and the bubbling of a boiling liquid. Some sort of mechanical device was whirring and clicking across the room. Pellwyn returned his focus to the dripping. It’s repetitive nature soothed his tired mind as memories began to return as well.
On Wednesday, the High Court ruled on two cases that involved questions about the extent of free speech in Australia. These cases are of interest because they provide an indication of the situations where the High Court might permit the government to interfere with free speech in a way the US Supreme Court might not. The first case involved the issue of whether the Adelaide council has the power to pass by-laws preventing preaching in the streets. The second, and perhaps more controversial case, involved the issue of whether the federal government has the power to criminalise sending offensive letters through the post. The important question answered was whether each of these laws unduly restrict the freedom of political communication implied by the constitution.
Before looking at the arguments in each of these cases, it’s important to consider the nature of the freedom as the law stands in Australia. The freedom is constructed out of sections 7 and 24 of the constitution which make reference to parliamentarians being ‘directly chosen’. The High Court has historically interpreted this as being part of a framework of ‘responsible government’. It has interpreted the phrase to mean the government had a positive duty to provide a mechanism for the choice (i.e. elections) as well as a duty to not interfere with that choice. The court interpreted the choice in a broad way by inferring the inclusion the pragmatic element of freedom of political communication, as a practical requirement of responsible government and consistent with the democratic expectations. As the government is bound by the constitution it cannot legislatively interfere with this political communication (at least to any extent that it will practically interfere with the people’s choice of representation). This makes it a limited pragmatic and public freedom in contrast to the ‘absolute’ formal or private right associated with free speech in the United States.
This can be seen in the way the High Court formulates the legal test:
- Does the law effectively burden freedom of communication about government or political matters in its terms, operation or effect?
- If the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 of the Constitution for submitting a proposed amendment to the Constitution to the informed decision of the people?
It’s important to note that these questions must focus on the law itself, and not the actions of the individual in the particular cases. The facts of the particular case are at most a convenient illustration of the issue. In both these cases it was conceded that the laws did effectively burden freedom of communication, and thus the first question was answered positively. The arguments in the cases focused on how the court dealt with the second questions.
Common Law Right
Judgements in these cases also makes reference to the common law right of free speech. This is a related but separate right to the constitutional freedom. Although this right is much broader, having the generalised scope of the free speech right in the US, as it is part of common law it is something that parliament has the power to override. It’s significance is that when interpreting legislation, the courts will presume that parliament did not intend to infringe the common law right unless that intent is sufficiently clear in the legislation. Given the capacity of parliament to override it with properly drafted legislation it is not as politically significant or interesting as the constitutional freedom. It forces the politicians to clearly infringe the right in the legislation they pass and so in a sense provides some political protections against underhanded infringement, but generally interest in the common law right is limited to those who draft and interpret legislation.
The first case involved two brothers who felt they had the right to preach their faith in a public mall in Adelaide without having to get authorisation from the council. The by-law was “for the management of roads” and included:
Activities Requiring Permission
No person shall without permission on any road:
2.3 Preaching and Canvassing
preach, canvass, harangue, tout for business or conduct any survey or opinion poll provided that this restriction shall not apply to [a] designated area as resolved by the Council known as a ‘Speakers Corner’ and any survey or opinion poll conducted by or with the authority of a candidate during the course of a Federal, State or Local Government Election or during the course and for the purpose of a Referendum;
There are a number of key points in the law to note. Firstly, the purpose of the law is to manage the roads under its jurisdiction. In it’s judgement, the High Court accepted this was an important and legitimate function of the law, and it noted that proper management of the roads could even improve the capacity to communicate via efficient transportation. Secondly there are clear exceptions in place for dealing with communication explicitly to do with elections. Finally there is the possibility to gain permission for exceptions not identify directly in the law itself. The majority of the court concluded that these elements made the law reasonable and thus concluded it was valid under the constitution.
Heydon J, the dissenter, preferred to focus on the common law right. He used this to interpret the legislation empowering the by-laws as being worded too broadly include a power to infringe the right of free speech. This meant he considered the council lacked such a power and hence the section of the by-law was invalid as it exceeded the power of the council.
The second case involve a man sending offensive letters to families of soldiers who had died in Afghanistan. The Criminal Code (Commonwealth) creates an office in section 471.12 covering where a person uses the postal service:
… in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.
For this offence, the code also requires the conduct be reckless. This means a person’s offensive use of the postal service will only constitute an offence if:
(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and
(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
This can be simplified into three elements that must be met for the use of the postal service to be an offence:
- a ‘reasonable person’ would consider the use offensive;
- the sender was aware of the risk that a reasonable person might find it offensive; and
- given this, the use was (objectively) unjustifiable.
The issues in this case line up differently than the first and for this reason it is more controversial. Firstly, the judgements identified the key purpose of the law as defending the individuals from unwanted intrusion in their private homes and businesses. Protection of individuals from the speech of others can be contrasted to manage a public space for a public purpose. Secondly the nature of the communication also shifted from communication in a public space to communication between private individuals. Arguably private communication is more important to the process of political communication and holding the government of the day responsible. These factors both suggest that the law in this case is less reasonable than the first case.
The High Court was split on the matter, ultimately leaving the decision of the Supreme Court in place and the law intact. Crennan, Kiefel and Bell JJ issued a joint judgement upholding the law as valid. They felt that there was sufficient flexibility within the ‘reasonable person’ test and the ‘unjustifiable’ test to protect those using the post for political communication. They felt juries would see the vast majority of political communication as either not sufficiently offensive to a reasonable person particularly given the importance of political communication, or if it was considered offensive that the political nature would justify the risk. Their conclusion was that the law was sufficiently adapted for its purpose to be compatible with the constitution.
Arguing the law was invalid, French CJ and Hayne J both argued that preventing offence was not a legitimate purpose of the law, one completely incompatible with the constitutions democratic framework, and hence the question of reasonableness did not even arise. Their concern was that in the legislation the term ‘offence’ was broad and the definition of ‘postal service’ was vague that it would cover an excessive amount of political communication, in particular communication in the form of robust debate.
In his final judgement before retiring, Heydon J briefly agreed with French CJ and Hayne J and then went on to sympathise with the families, quote some poetry, discuss how we shouldn’t have such a constitutional freedom in the first place and ultimately conclude:
Those who drafted the Constitution, those who secured legislative approval of it by each colonial legislature, and the people who approved it by their ballots would each say, if they could examine the authorities on the implied freedom of communication: “Non haec in foedera veni“. Yet in compacts other than constitutions, clearness and obviousness are common conditions precedent to the implication of terms.
Close examination of the implied freedom of political communication would involve analysis of these issues. That examination may reveal that it is a noble and idealistic enterprise which has failed, is failing, and will go on failing. That close examination cannot usefully take place until some litigant whose interests are damaged by the implied freedom argues in this Court, with leave if necessary, that the relevant authorities should be overruled. No endeavour of that kind was made in these appeals. Hence these appeals offered no occasion for close examination of the relevant questions. On the existing law, there is no alternative but to make the orders proposed by Hayne J – a result which, some may think, demonstrates how flawed that law is.
This perhaps suggests that the foundations of the constitutional freedom remain uncertain even while there is controversy over it’s application. Perhaps its just a call for one of the other judges to take on the role of the “Great Dissenter“.
The two cases where the constitutional freedom developed both involved laws directed at the political nature of the communication. Nationwide News v Wills involved a law that prevented bringing the Australian Industrial Relations Commission into disrepute. Australian Capital Television v The Commonwealth involved a law that heavily regulated the ability of political advertisements during election periods. The fact that both laws were directly regulating communication about political offices proved significant. In both cases the High Court held the laws were invalid because they were incompatible with the constitution.
Later in Lange v ABC, the High Court revised the limits of common law defamation to be consistent with the freedom of political communication identified in earlier cases. It was in this case that the court developed the second ‘reasonability’ part of the test used in later cases. The court held the general restraint on speech by defamation law was acceptable however extended the qualified privilege defence to those communicating defamatory political imputations. The defence required circumstantial and procedural hurdles be met in order to invoke the defence. Behaving as a responsible journalist would provide a shield against liability for defamation even if the facts turned out to be wrong, while shamelessly printing any old rumour could result in damages. While defamation law has since been reformed by legislation, the balance found in the modified defence provides an important example of the way the court views the issue.
These new cases can be seen as clarifying limits of the freedom established in previous cases. The laws in these cases involved imposed limits on communication generally, whether by mode (in the street) or content (offensive nature). Thus, like the law of defamation, they are capable of reasonably balancing their legislative purpose with the democratic nature of the constitution. The judicial split in the letters case indicates that the Commonwealth law has pushed limits of what is acceptable.
Beyond Streets and Letters
Other than the ‘reasonability’ test applied in the cases there remains no clear indication on the limits of the constitutional freedom in contexts. Any limits will need to be determined on a case by case basis as the matters reach the High Court.
One point to make is that the offence regarding offensive use of the postal service is essentially identical to an offence covering the use of a the use of phones or the internet (section 474.14 of the Criminal Code). The internet does provide functionally different modes of communication to the postal service, however such factors could easily be considered within the reasonable person or justifiability tests. I don’t see this as significantly changing the arguments either for against the validity of the law. So I wouldn’t count on freedom of political communication to protect people in Australia that might act offensively on the internet.
There is also an ongoing debate over whether the political freedom should extend beyond communication to include association. There is a case the court is currently considering so there may be a resolution to that debate soon. Hayne J (at ) already made a reference to political association in the street preachers case:
Preventing the obstruction of roads is conducive to the maintenance of roads as a means of travel, interaction and association (including political interaction and association) among the people.
I wouldn’t be surprised if the capacity to organise candidates to be chosen from is seen as an important part of representatives being ‘directly chosen’ and hence freedom of association would be seen as an important democratic element. However I suspect that any freedom of political association will be similarly qualified to the freedom of political communication, and that ultimately it won’t be useful in invalidating well conceived laws. It will be interesting to see how the arguments pan out and how the court rules.
I’m as divided on the letters issue as the court. I don’t have a problem with the specific conduct in either case being sanctioned by the law. I think the law regulating the use of roads is perfectly reasonable, particularly with the express political exceptions included. I also think the law has a place in providing protection in situations where people are known to be especially emotionally vulnerable. There is no place in a lawful society for the callous exploitation of vulnerable people, whether for laughs or politics.
However, I do share the concern about the breadth of the postal service offence. The capacity of the reasonable person and justifiability elements to protect political communication relies on proper determination of fact. Mistakes in determination of fact are not as easy to appeal as mistakes in law. Review of decisions by higher courts is not likely to be effective in ensuring its application remains consistent with the constitution’s democratic framework. All it would take would be an over-zealous prosecutor and a jury influenced by a shift in the political winds and the law could become a significant burden on political communication. Going back a few decades, how difficult would it have been to make a convincing argument that posting same-sex marriage propaganda incorporating graphic depictions of homosexuals being affectionate and raising children constitutes offensive material?
Constructing the law to provide protection without excessively intruding on freedoms is a significant challenge. One step could be to specify a set of key factors that need to be considered in assessing whether the conduct was ‘offensive’ or ‘justifiable’. The qualified privilege defences that form part of modern defamation laws are an example of such an approach. It would still be necessary to avoid any hard definitions to avoid people exploiting them as a ‘legal loophole’.
Ultimately I think the Commonwealth should have drafted the legislation better and the protection of political communication is important enough that the law should have been considered invalid. I can also see the point that Heydon J was making about the very existence of such a constructed constitutional freedom, yet I think if it remains properly bound to a substantive notion of democratic ‘choice’ it will continue to serve us well.
My brain seems to be stuck in legal mode as a result of exams, and so a recent post by Sinclair Davidson at Catallaxy grabbed my interest. In the post he claims that its illegal to vote informally. In the post he uses the phrases “against the law” and “illegal” to describe informal voting but it’s not until I read his comments that it became clear that he believes informal voting constitutes a punishable offence against the act.section describe the process. The broader context of his opinion can be seen in this comment: “Compulsory voting is an abomination.” Davidson’s position on the legality of informal votes is at odds with what the AEC is reported as saying. It’s also different to my understanding that while the law obligated people to show up and fill out a ballot, it didn’t control how they do so.
Since it’s been a while since I’ve revised the principles of statutory interpretation, I figured now would be a good chance to do so. The practical barriers to enforcement make this something of a purely academic question, but one I found interesting enough. If anything, it should provide an illustration of the substantial complexity and uncertainty faced by those who draft and interpret legislation.I should probably prefix my analysis with the fact that I generally support compulsory voting and think everyone has at least a moral duty to society to participate in the democratic process. I also appreciate the desire to signal dissatisfaction with the options available, but I’m just not sure informal voting is the best way to resolve the issue. That said the merits of compulsory voting are beyond the scope of this post, so on to the legal pedantry.
The Sections of the Act
The obvious first step to determine the extent of the legal duty to vote is to examine the legislation. This analysis will be limited to elections for the house of representatives as there is no relevant differences in regards to the senate other than an increased complexity in the ballot and marking process. The duty to vote is established, as Davidson indicated, in section 245 of the Commonwealth Electoral Act 1918:
(1) It shall be the duty of every elector to vote at each election.
It’s clear that everyone enrolled to vote has a duty to vote. The content of this duty is not as clear. The act does not provide a specific definition for the word “vote”. In common use to “vote” can mean anything from filling out a secret ballot at an election, to raising a hand in a room, or simply calling out “aye” or “nay” at a gathering. I don’t think it’s possible to determinatively exclude informal votes from the meaning of “vote” solely based on how it is used in that section. So it is necessary to look further in order to establish the scope of the duty. Davidson makes the case that the section that covers how a person is to mark the ballot can be used to determine the content of the duty:
(1) In a House of Representatives election a person shall mark his or her vote on the ballot paper by:
(a) writing the number 1 in the square opposite the name of the candidate for whom the person votes as his or her first preference; and
(b) writing the numbers 2, 3, 4 (and so on, as the case requires) in the squares opposite the names of all the remaining candidates so as to indicate the order of the person’s preference for them.
(2) The numbers referred to in paragraph (1)(b) are to be consecutive numbers, without the repetition of any number.
These two sections by themselves could be read to infer the duty extends to how an elector marks the ballot. There are some questions raised by the language used (or not used). Section 240 uses the phrase “shall mark his or her vote on the ballot paper”, not “shall vote by marking the ballot paper”. This suggests that the legislation might consider voting and marking as separate concepts, enabling the duty to be interpreted as excluding how the ballot is marked. Further section 245 refers to a duty “to vote” and not a duty “to vote as directed by section 240”. Conversely, the wording also includes a duty “to vote” not merely a duty “to attend” or “to submit a ballot”. While the wording creates some uncertainty about the extent of the duty, it doesn’t provide a clear enough indication so further investigation is necessary.
Process of Interpretation
There are two plausible and competing interpretations based on the wording in the act. The Catallaxy post and comment thread identify a number of factors that could be used to justify one interpretation over another. The question is which factors are most relevant.
The Acts Interpretation Act 1901 instructs that the interpretation show follow the purposive approach:
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.
The Commonwealth Electoral Act doesn’t provide an express purpose. Despite this, it is clear the purpose of the act (in general) is to describe in detail the process of how people are to choose their representatives as required and enabled by the Australian Constitution:
The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth …
Until the Parliament otherwise provides, but subject to this Constitution, the laws in force in each State for the time being relating to elections for the more numerous House of the Parliament of the State shall, as nearly as practicable, apply to elections in the State of members of the House of Representatives.
In this context the provisions in section 240 can be see as the Commonwealth Parliament providing the legislative description of the legal process by which the people directly choose their representatives. It would be a step beyond this to impose a duty on people to follow that process. Still, the question remains as to whether attaching provisions in section 240 to the duty in section 245 best achieves this purpose.
Structure of the Statute
It’s important to not focus purely on the words themselves, but to look beyond the immediate sections in questions on consider the structure of the act. As the High Court explained in CIC Insurance Ltd v Bankstown Football Club Ltd  HCA 2
[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise…
The most immediate context is another part of section 245. The same section that establishes the duty also establishes the offence for failing to meet the duty, the associated penalty and a specific defence:
(15A) Strict liability applies to an offence against subsection (15).
Note: For strict liability , see section 6.1 of the Criminal Code .
(15B) Subsection (15) does not apply if the elector has a valid and sufficient reason for the failure.
The offence under s 245(15A) imposes strict liability. This means that intent (whether the failure was ‘deliberate’ or not) is not necessary for the conduct to be considered an offence. In practice this means someone can’t simply claim they intended to vote but forgot in order to avoid the charge. If this offence extends to cover informal voting, it means that someone who accidentally fills out their ballot incorrectly has also committed an offence (the mistake of fact defence is still available, but it would be a bit of a stretch to claim a mistake about the state of the ballot paper in most circumstances). That seems a little harsh to me, particular when considering the oversized senate ballot.
The surrounding provisions provide an indication of how the offence is intended to be enforced:
(1) Immediately after handing a ballot paper to a person whose name is on the certified list of voters, or an approved list of voters, available at a polling place, the presiding officer or a polling official at the place must:
(a) place a mark against the person’s name on the certified list; or
(b) record electronically against the approved list the fact that the person has been handed a ballot paper.
(2) The presiding officer at a polling place shall make a record of the name of each elector who casts a declaration vote at the polling place and, in the case of an absent voter, of the Division for which the elector declares under subsection 222(1) or (1A) that he or she is enrolled, and shall, at the close of the poll, forward the record, duly certified by the presiding officer, in accordance with section 228.
(2) The Electoral Commissioner must, after polling day at each election, prepare for each Division a list of the names and addresses of the electors who appear to have failed to vote at the election.
(3) Subject to subsection (4), within the period of 3 months after the polling day at each election, each DRO must:
(a) send a penalty notice by post; or
(b) arrange for a penalty notice to be delivered by other means;
to the latest known address of each elector whose name appears on the list prepared under subsection (2).
There are clear measures to enforce the elements of the offence that include a requirement to show up, get a ballot and get your name marked off. The presiding officers and assistants would be able to witness and hence enforce that each elector go into a booth, fold the ballot and put it in the box.
However, one of the key policy decisions made within the act is that voting to take place in private. The surrounding sections limit the capacity the government has to enforce how people mark their ballot:
(1) Except as otherwise prescribed the voter upon receipt of the ballot paper shall without delay:
(a) retire alone to some unoccupied compartment of the booth, and there, in private, mark his or her vote on the ballot paper;
(b) fold the ballot paper so as to conceal his or her vote and:
(i) if the voter is not an absent voter–deposit it in the ballot-box; or
(ii) if the voter is an absent voter–return it to the presiding officer; and
(c) quit the booth.
Except as authorized by this Act or the regulations, an officer shall not place upon any ballot paper any mark or writing which would enable any person to identify the voter by whom it is used.
These provisions make it clear that parliament considers the private nature of voting as an important part of the act’s purpose. It does not make sense to interpret an offence beyond the limits of enforcement provided elsewhere in the act. Further, it would be contrary to the purposive approach to interpret an offence in such a way that any enforcement action would conflict with another key policy objective established elsewhere in the act. This suggests in creating the offence parliament is only concerned with those who fail to turn up, get their names marked off the list and follow the observable instructions, not those who fail to mark their vote according to section 240.
The Mischief Rule & Extrinsic Material
The law allows us to look further than just the act itself. Firstly, the common law has long interpreted acts of parliament by considering what mischief or defect the act is intended to remedy. This was also noted in the CIC Insurance case:
[T]he modern approach to statutory interpretation… (b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief which … one may discern the statute was intended to remedy.
In examining the history of the legislation, it can also be useful to consider extrinsic material (explanatory memoranda, speeches to parliament, etc) as provided for by Section 15AB of the Acts Interpretation Act. The obvious next step to consider then is the history of the act. There are two points to note about differences in the older version of section 245 (which was renumbered from 128A).
128A. Compulsory voting
(1) It shall be the duty of every elector to record his vote at each election.(12) Every elector who-
(a) fails to vote at an election without a valid and sufficient reason for such failure; or
shall be guilty of an offence.
The first is that the duty includes the obligation to not just “vote” but to “record [the] vote”. The second is that this requirement to record is missing from the offence related to the duty. This provides further argument that by removing the duty “to record”, parliament intended the duty in the current act to exclude that element. Although arguably the purpose of the amending act was to resolve language issues in the legislation and not change the extent of elector duties.
Section 119 (now repealed) also differs in two respects from its current equivalent (section 233).
119. Vote to be marked in private
Except as otherwise prescribed the voter upon receipt of the ballot-paper shall without delay-
(a) retire alone to some unoccupied compartment of the booth, and there, in private, mark his vote on the ballot-paper in the manner hereinafter described;
(b) fold the ballot-paper so as to conceal his vote and to show clearly the initials of the presiding officer, and exhibit it so folded to the presiding officer, and then forthwith openly, and without unfolding it, deposit it in the ballot-box; and
(c) quit the booth.
Firstly, it involved a partial inspection of the ballot before putting it in the box which is not particularly relevant to the issue at hand. Secondly, it included an express link between the process of handling the ballot and the manner in which it is marked. In this case the amending act was intended to “make the voting process simpler“. This change suggests an intention by parliament to remove the link between any public duty (and related offence) to attend and handle the ballot, and the private matter of how the ballot is marked.
This simplicity echoes the statements made back in 1924 with the introduction of compulsory voting legislation. The second reading speech of the act that introduced compulsory voting contained the explanation:
It is very simple, consisting of three clauses only, the principal one of which is clause 2. The bill provides that it shall be the duty of every elector to record his vote, and that after each election a list of those who did not vote shall be prepared by the returning officer.
Extending the content of the duty to include the detailed provisions of how the ballot is to be filled out conflicts with this intended simplicity. The natural limitation on enforcement was also acknowledged at the time:
Honorable members may say that we can take a horse to the water but we cannot make him drink. But by compelling people to vote, we are likely to arouse in them an intelligent interest, and to give them a political knowledge that they do not at present possess.
The interpretation I take from that is that parliament can take an elector to the booth, but cannot make them hold or express a preference. The overall purpose of the act is aided by the fact that being compelled to attend means people will often be induced to form a preference and express it.
The specific words in the sections don’t clearly indicate the extent of the duty and could arguably be interpreted as extending the duty to how a ballot is marked. However, when considered in their full context I think the better interpretation is that the duty is limited to attendance and simple handling of the ballot, and does not include the specific manner in which the ballot is marked.
Presumption of Last Resort
Any remaining uncertainty about the extent of the duty can be extinguished by reference to the common law assumption against creating a statutory offence. According to the High Court in R v Adams  HCA 62:
… when that language is capable of more than one meaning, or is vague or cloudy so that its denotation is uncertain and no sure conclusion can be reached by a consideration of the provisions and subject matter of the legislation, then it ought not to be construed as extending any penal category.
It is also reiterated by by Gibbs J in Beckwith v The Queen  HCA 55:
The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences.
I think the structure and context of the act creates sufficient uncertainty about the link between the offence in section 245 and the provisions in section 240 to mean it is appropriate to assume there is none.
It is prudent to consider the case law on this matter. The cases have been about the constitution power of the Commonwealth to impose such a duty and the extent of the “valid and sufficient reason” defence. For the practical reasons discussed above there have been no cases requiring them to address the matter of whether it is an offence to mark the ballot contrary to section 240. This means the judicial commentary is obiter and somewhat inconsistent. The cases on constitutional power are of little assistance as I am not arguing on the basis the Commonwealth lacks the power to compel people to mark their ballot in a particular way.
The cases on valid and sufficient reasons are focused on the purpose and not the content of the duty. As explained in by Isaacs J in Judd v McKeon  HCA 33, allowing a lack of preference to be a valid and sufficient reason would undermine the purpose of the duty:
When all opportunities are reduced to the actual candidatures and the time comes for each constituency to return its quota to the national Parliament, there is no force whatever in the contention that a valid and sufficient reason exists for non-compliance with the primary duty of voting, merely because no one of the ultimate candidates meets with the approval of the given elector. If that were admitted as a valid and sufficient reason, compulsory voting would be practically impossible.
As explained in the second reading speech quoted above, the purpose of the duty goes beyond getting the elector to turn up and fill out a ballot. The purpose extents to inducing the elector to consider the election and form an opinion. Given the impossibility of imposing a duty to form an opinion, it is clear the purpose of the duty goes beyond its contents. Thus a reason to avoid the duty that conflicts with or undermines this purpose, as those found in the case law, can be considered not “valid and sufficient” even though there would be no direct effect resulting from the duty being fulfilled (i.e. turning up and voting informally). I’m not sure these cases can do much to clarify the matter about the content of the duty.
Perhaps the strongest authority in the case law comes from the High Court in a case where the older provisions were still in place, a case Davidson cited in his own article (Faderson v Bridger  HCA 46 at , my emphasis):
Section 128A places a duty on every elector to record his vote. This is done by attending at a polling booth, accepting a ballot paper, and, as s. 119 provides, marking it and depositing it in the ballot box. A failure to vote therefore involves a failure to attend, accept the ballot paper and having marked it, to put it in the ballot box. Of course there is no offence committed by not marking the ballot paper in such a fashion that the elector’s vote is in law a valid vote.
The only other observation I’ll make from the case law, is that its amazing how many High Court challenges there have been to an offence that imposes such a small ($50) fine.
The fact the law might not extend the duty or offence to include the provisions of how the ballot is to be marked does not mean there are no consequences for doing so. It is unlikely that the effort would be made to draft a provision detailing how something should be done without there also being some indication of the consequences when those provisions are not followed.
Comparing section 240 to another one from the same act might help gain some perspective on the implications of failing to perform as the provision specifies. Consider the process for applying to vote via the post:
(1) An elector may apply for a postal vote on any of the grounds set out in Schedule 2.
(2) A person who is provisionally enrolled may apply for a postal vote.
What happens if someone is eligible to apply for a postal vote under section 183, and attempts to apply for a postal vote:
- over the phone;
- not in an approved form; or
- without including the required declaration?
Clearly they have applied contrary to the rules in section 184. The phrases Davidson used in his post could technically be used. One could say the person applied “against the law”, applied “illegally” or that the application was “unlawful”. Since such phrases are commonly used to describe crimes up to and including murder, they are perhaps not the best phrases to use outside a specific legal context. A better phrase would probably be that the application was “legally invalid”. Failing to apply for a postal vote in the prescribed manner hardly implies someone is a bad person or has harmed society in some meaningful way. There is a distinct difference between a provision that mandates how something must be done in order for it to have a certain legal affect, and a provision that mandates how something must be under threat of punishment (i.e. creates an offence).
The legal consequence of applying contrary to section 184 is that the application does not obligate a postal ballot be sent out, thus potentially preventing the person from voting via post:
(1) A DRO or Assistant Returning Officer who receives an application for a postal vote that is in accordance with subsection 184(1) must (unless the application fails to meet the deadline as mentioned in subsection 184(5)) send, or arrange for the sending, to the applicant in accordance with whichever of subsections (2), (3) and (4) of this section applies:
(a) a postal vote certificate printed on an envelope; and
Of course it is possible that failing to adhere to the statutory directions could cause indirect legal consequences. Failing to apply correctly for a postal vote may not be considered a valid and sufficient excuse for failing to show up on election day. It is also possible that failing to adhere to the statutory directions affects legal rights and obligations outside the immediate context. For example a police officer who fails to adhere to statutory limits on using force to arrest someone could be said to have used “unlawful force”. This might not just cause an evidence to be excluded in the criminal context, but they may also loose protection against civil liability for their actions. However, it is unlikely that any conduct with regarding the rights and duties of electors would extend beyond their electoral context.
There are two sections in the act that deal with the consequences of failing to mark a ballot in the way set out in section 240:
(1) A ballot paper shall (except as otherwise provided by section 239, and by the regulations relating to voting by post) be informal if:
(c) in a House of Representatives election, it has no vote indicated on it, or it does not indicate the voter’s first preference for 1 candidate and an order of preference for all the remaining candidates:
Provided that, where the voter has indicated a first preference for 1 candidate and an order of preference for all the remaining candidates except 1 and the square opposite the name of that candidate has been left blank, it shall be deemed that the voter’s preference for that candidate is the voter’s last and that accordingly the voter has indicated an order of preference for all the candidates:
Provided further that, where there are 2 candidates only and the voter has indicated his or her vote by placing the figure 1 in the square opposite the name of 1 candidate and has left the other square blank or placed a figure other than 2 in it, the voter shall be deemed to have indicated an order of preference for all the candidates.
(b) reject all informal ballot papers…
The legislated (and rather obvious) consequence of not filling out the ballot paper correctly, is that it will likely be considered an informal ballot and rejected (i.e. not counted). Based on my conclusion that this does not constitute an offence, there do not appear to be any further legal consequences. That said, it is possible that in the hypothetical circumstance that someone confesses and is prosecuted that the court would end up ruling the way Davidson indicates and then they would face a $50 fine. However as far as I can see, the only way the law compels someone to actually mark their ballots correctly is by ‘threatening’ to do the very thing the complainants appear to want, that is to have their vote not count.
As for the immense imposition of turning up to fill out a ballot once every three years, the benefits as described back in 1924 would seem to me to be significantly beneficial enough to justify such a duty. That however is an argument for another post…
I recently watched through the Jekyll, the recent BBC modern sequel of the Dr Jekyll and Mr Hyde story. It was an enjoyable experience that combined the elements of a psychological thriller and science fiction, while never taking itself too seriously. With just six episode to tell the story the show keeps the plot moving and avoids falling into the monotony of longer seasons. There was a hint of cliche stereotypes in otherwise refreshing characters and James Nesbitt, in particular, does a great job as Jekyll/Hyde. It wasn’t perfectly in sync with the original, however the key element of a dichotomous personality was central to the story. Watching the show seeded the requisite reflection of the perspective and ethics of the situations within the story and how they may apply to our reality.
At the superficial level, the plight of the Jekyll position can been seen to be one of mental illness. The story shows how an individual with such a condition faces not only a great internal enemy, but how they feel then need to isolate their true selves from society and their loved ones. How the struggle to simply be the person they feel they are takes such a considerable investment of energy that it seems like a mighty achievement in itself. This in turn causes the everyday tasks of a ‘normal’ person to often seem insurmountable. The stigma of the illness leading not just to isolation from those who ought to provide support, but also leading to a burden of guilt for the impact that such failures have on the friends and loved ones.
At a deeper level it’s about the inner Hyde we all have, that primal instinct that drives us to perform primal deeds. In the show, Hyde is portrayed as a charming, yet violent, sex crazed drug addict with a rather apathetic attitude towards morality. It’s not that Hyde is driven to do evil that makes him dangerous, but rather that he pursues his desires with a complete lack of any concern for others. Traditionally these acts are often looked upon as sins, the type of acts that typify an amoral individual. I think the ethical lesson that should be taken from the story is that it’s not the acts or desires that are wrong, but rather its when one acts to satisfy their desires in a way that is disconnected from the other aspects of their humanity that problems arise.
Reflecting on my own life, I can see how certain desires are in conflict with other aspects of my life, sometimes to the extent my actions in pursuit of those desires could be described as disconnected. For example, I’m currently working my way back to having a healthy body by maintaining a diet and exercise regime. I’m pretty sure there was no time where I thought deeply about the issue and decided I did not care about my health or appearance. Yet, there have certainly been times where I was driven by gluttony to the exclusion of just about any other consideration. Part of that experience involves finding that my thought patterns can vary between the time of in depth consideration, and the moment where I take the action. What starts out as an “unacceptable indulgence” shifts to a “reasonable compromise” without so much as a concious thought, and often with significant external pressures. It’s not quite like having a whole other personality take over one’s body, but it does make it clear that one isn’t necessarily in concious control of one’s own conciousness.
I’ve previously written about my views on the mind and how it learns from experience. Let’s presume that the human mind is not fundamentally rational, but rather that its rationality is built on top of a set of abstract mental patterns developed through experience with the world. It would be possible for multiple perspectives on a single issue to be present within a mind at any given time, with the one we perceive as our own as simply the patterns that gain dominance through the neural process. However, if an external condition were to vary the change in neural inputs could shift the dominance in mental patterns such that our perspective on a given issue changes, all without a concious thought.
Some of the more interesting ethical questions were those faced by those interacting with the main character. To what extent could each of the personalities be held responsible for the deeds of the other? What responsibility did Dr Jackman have to avoiding letting Mr Hyde loose? Are they separate people who time shared a body, or are the two facets of the same person? To what extent is it moral to influence which personality is in control at a given time? It’s this question I find interesting, particular when applied to the view that each of us having our own internal Hyde. In the show those who’s ambition is to exploit the existence of Mr Hyde are depicted as morally bankrupt, or at least ethically questionable. They engage in unethical conduct for their own material benefit; although some do attempt to rationalise it with appeals to the greater good (“think of the science!”). Can these judgements be applied to those who would seek to exploit the inner Hydes we all possess?
I would hold that they can. It’s important here to note that exploitation isn’t simply a matter of providing a means to satisfy desire; it’s not the good or service that is the problem. Exploiting the inner Hyde is about manipulating the subconscious mental processes in order to override the concious, rational choices of that person. Perhaps the clearest example of this would be those who push addictive psychoactive drugs; the dramatic shift in personality that a user can experience can cause them to behave irrationally, often resulting in harm to both themselves and others. The dramatic impact of exploiting this psychological vulnerability is so severe and inseparable from the positives that many such drugs have been outlawed.
However, not all instances of this issue are treated the same. The continuing battle over poker machine reform in Australia is one such example of how a society will often choose to turn a blind eye to the victims of this kind of psychological exploitation, or at best make a token effort to address the issue. There are also examples that our society has barely begun to address, such as the fast food that is scientifically designed to not just taste good, but induce cravings in order to drive future consumption. Additionally, much of what passes as marketing these days includes a sophisticated attack on people’s psyche in an attempt to get them to make decisions against what would have been their better judgement. You’re more likely to purchase a product you’ve been subconsciously trained to associate with positive emotions than a product you’ve considered as having the best value to price relationship. Of course I wouldn’t be surprised to find those who would justify the greed that drives those responsible for such things.
But what of freedom? Should people not be able to sell the products or services that others demand simply because meeting that demand is itself presumed to be a good thing? To this I would reply that as far as freedom’s go, the freedom to think my own thoughts without external interference is perhaps the greatest freedom I could hold. The mental degeneration of a disease like Alzheimer’s would seem to be a far harsher sentence than spending a similar time period in simple physical containment. Even most ardent libertarians support the state intervening to protect the free use of property from interference from third parties, as well as to protect the fragility of the human body. Why should this protection not extend, at least in principle, to the fragility of the human mind?
The only rebuttal to this I can currently think of is one that perceives the human mind as a black box, where the individual is the only party responsible for their cognitive process. To me this argument seems to come from the same egotistical drive that leads people to behave recklessly on the subconscious assumption that they’re not physically vulnerable. It’s about as naive as claiming that an individual is the only party responsible for the circulation of blood around their own body, and therefore the party who slits the individual’s throat bears no responsibility for the loss of blood. If the science of psychology is going to continue to enhance our ability to manipulate the thoughts of each other, or even just to understand (and therefore exploit) mental weaknesses, then I think we have to begin to include such understanding in ethical analysis. Ethics founded on conceptualising the human mind as an independent and internally responsible entity will cease to be applicable in a world where that is not the practically reality.
The recent ruckus between Melinda Tankard Reist and Jennifer Wilson brings to mind a case that demonstrates where I would draw the line between protection and freedom. Often anti-pornography activists will claim that those who view pornography are so twisted by the experience that their ability to think objectively about the effects pornography has on them and on society. To the extent the issue is about involuntarily being exposed to sexualised imagery, I can sympathise with the argument against pornography as such exposure will potentially trigger certain thought patterns involuntarily. However, there are many people that will passionately and rationally defend their consumption of pornography with reasonable temporal isolation from such consumption. While I’m willing to question the morality of intentionally interfering with someone else’s thought processes, I’m not willing to concede that such things can completely undermine someone’s ability to reason to such an extent that it justifies interference with their own choices (at least not without clear and convincing evidence of chronic cognitive impairment). Nor am I convinced that the primary drive to desire pornography is external, so the industry as a whole does not appear to be relying on a market manufactured through psychological manipulation.
Important too, is that the issue goes beyond the ethics of isolated circumstance. The assumption of rational expectations form the basis of most economic analysis, including the reasoning behind the effectiveness of the market mechanism. Allowing the exploitation of the inner Hyde, the undermining of the rational behaviour of an individual, undermines the power of markets to operate effectively. If people are no longer acting rationally (in their own best interests), each trade within the system, even though still fitting the definition of voluntary, can no longer be assumed to be a net gain. A marketing strategy that relies on mental manipulation to induce sales is as economically beneficial as one that relies on breaking windows. If we’re going to found a social and economical system on the basis of rational expectations, we need to find ways to minimise systematic threats to our potential for rational behaviour without hampering the freedom that enables such rationality to so beneficial.
Over the few years I’ve been reading gender related blogs I’ve seen many occurrences of people making the range of argumentative mistakes listed here. Yet one common tactic I’ve seen used that I can’t find in that list is something I would call the “Labelling Fallacy”, which involves identifying an argument one disagrees with as fitting some pattern or another, applying a label to it, and dismissing it on the basis that it fits that label. The most recent example I’ve seen of this was an attempt at Feministe to institutionalise a form a false dichotomic thought, an “us vs them” mentality, by pathologizing a certain way of phrasing nuanced disagreement (to which ToySoldier responded “yes, but…“). There other examples I’ve come across, and this approach does sometimes extend into the ad hominem territory, where once a participant is labelled everything they have said is summarily dismissed. Perhaps the worst example is when it reaches the point of putting a collection of these labels onto bingo cards, as if putting an argument on a card with a collection of other arguments one disagrees with somehow negates the argument. Regardless of the format, the end result is that a point that one disagrees with is dismissed by being labelled, rather than being counter argued. I can only presume that there is an assumption on the part of the one doing the labelling that such arguments have been adequately rebutted elsewhere, yet these are not referenced.
The examples I’ve provided above are all from feminist blogs, however it wouldn’t surprise me to find the tactic being used elsewhere. In particular, discussions about religion and climate change come to mind. To me this sort of behaviour is not a positive one, and it’s one that would both limit the quality of the discussion by excluded potentially valuable input and drive the group dynamic towards simplistic and partisan approaches to political issues. Perhaps the only benefit to the labels is that it might enable someone to rephrase a point in a way that is more likely to be treated as serious by those predisposed to dismiss it otherwise.
In part I think it’s an extension of the 101-blog approach to limiting the scope of a discussion, by out-sourcing discussion of common foundation or periphery topics. This is an approach that comes across as a much more reasonable way to deal with the issue of frequent thread derailing, even though the implementation may leave much to be desired, and as long as it isn’t used a means of arguing from authority. However if you don’t do the ground work of establishing a comprehensive rebuttal and providing a link to it, using a bunch of labels to dismiss potentially valid arguments is something that might make you feel high and mighty, but will make you seem little more than a petty partisan.
Following my last post, I visited some friends of mine who have young children. As my visit carried on into the even I was present for the evening reading ritual where the children each had a turn at stumbling their way through to words, or in the case of the youngest, through the pictures. I began considering other times I’d see or heard about early learning. At that stage learning seems to be centred around the process of trial and error, and as the motto “no pain no gain” tells us, the emphasis is on the error. When attempting to speak a word, a child’s first attempt will often be far from the mark. It’s only through a process of repeated failures that they end up being able to pronounce it correctly. It’s as if they aren’t learning the right way to say the word, rather they’re learning a collection of wrong ways and then attempting to pronounce it from the possible ways that remain uncorrected. Once they have learnt to reliably pronounce the word they begin exploring its meaning by using it everywhere. Again, through a process of repeated failures, the meaning of the word slowly becomes entrenched in their minds, as something of a collection of not-meanings.
So we can model the mind as a thing with a certain chaotic potential, pursuing experiences in a seemingly random pattern. Each experience chips away at this chaotic potential to slowly reduce it in scope while shaping it into something that appears to contain positive knowledge1. Looking closer, each individual idea2 would initially be a bulky rough edged block, with the truth being some mysterious shape buried within. Each time failure for that idea is experienced a piece of the block would be chipped off until the block beings to roughly represent the shape of the truth within. Given learning is not going to be perfectly experienced, each negative experience will only chip off a fraction of the portion of the block that is offends the experience. Positive experiences become a process of hardening the block as it is, reducing the ability of further negative experiences to change the block.
In a sense what I’m describing is the way a neural net functions; beginning as network of nodes containing a collection of random values with each iteration of the feedback loop slowly tuning those values until the output becomes more reliably correct. The resulting collection of values is a distilled version of the input and output information from the “experience” of learning. There is a useful trait with this regression model of the learning process. It demonstrates the damage that can be caused by mis-learning something, both in terms of chipping off too much through a false negative experience (chipping off too much, requiring relearning from scratch) and premature hardening through too early and frequent confirming experiences (a misunderstood idea becoming resistant to later corrections).
In this model, complex ideas are the connection of the individual idea blocks, including both the blocks and the connecting material. The complex idea remains vulnerable to any fault in the underlying idea but also requires correction of the connecting material corresponding to any modification of the underlying idea. It would also be possible for the complex idea to be formed first, and the underlying ideas revealed with further refinement3. The end result being highly complex ideas are formed through a long process of refinement and remain vulnerable to a compounding element of fault in the individual ideas. Thus the more complex the idea, the more dependant it is on negative correction to become accurate, and the more it is at risk of premature confirmation.
It’s important to consider also what this complexity means. In this model, a relatively simple idea is one that has a direct feedback mechanism from which the brain can facilitate learning. An example of this would be the skills of hand-eye coordination, or the lesson learned from the pain caused by touching something appearing to be hot or sharp. A slightly more complex idea might be the act of walking or the vocalisation of a word. More complex again would be movement to a particular place or performing a social greeting. Engaging in conversation becomes more complex again. The idea(s) constituting the concept of language becomes built on this understanding of conversation. The idea(s) for general concepts of information and communication built further. The important pattern is that the more abstract, or the more generalised the idea, the more complex it becomes for the mind to learn. The more likely the mind will misconceive the complex ideas through a compounding of the faults in the ideas from which it is built.
This stands in contrast to how we build ideas when thinking and communicating rationally4. When thinking rationally we like to start with the general rules and use deductive reasoning to add detail and end up with a conclusion. When viewed in this fashion, it is the general rule that seems simple and the specific conclusion (observable experience) that seems like the complex result. So how do we model conscious and rational thought in a model of thought based on regression?
Through a continual process of regression, the mind will build up layer on layer of ideas until it learns abstract ideas that can constitute a form of logic. These mental structures form tools the conscious mind has access to, in the same way has access to muscle movements and sensory observations. This form of intuition logic won’t necessarily match the structure or accuracy of formal logic; however it would enable a form of conscious reasoning. By learning to use and trust these mind structures, in the same way we learn to use and trust our limbs and senses, we gain to ability to think at a level abstracted from immediate action. The sheer complexity of the abstract ideas of logic and reason, in terms of how the mind learns them, means that the mind is going to be inefficient at using them and would continue to rely heavily on its natural method of regression. Rather than attempt to structure an idea within a structure of regressed logic elements the mind will examine small portions of the overall idea and construct a new regressed concept as the idea. Thus what may seem like rational or logical thought to the conscious thinker, is actually just a thin layer of rationality on top of a complex web of irrational intuition and regressed conceptualisations. We could take the model future and suggest rational thought is nothing more than the intuitive selection of the mental structures that have been constructed in association with the language elements we associate with rationality, where the intuition is guided by the experiences associated with the use of those structures.
In the model learning language (anything from English to mathematics or formal logic) becomes about learning the symbols and their associated rules in a fashion somewhat separate from the intuition based reasoning. Learning to use language becomes the regressive process of associating the symbols and rules with the intuition elements; given each person will have developed their own structure of intuition based reasoning, understanding and application of language will also vary. It will take time, for the mind to adapt to language to the extent that it’s use becomes intuitive. Rational thought is the application of these formal ideas to process and refine other ideas the mind contains. This in itself will cause the mind to train itself to better adhere to the formal ideas in the language, causing the language and the ideas within it to become more intuitive. Given the ideas of language are socially sourced, motivation to use language based rational thought must, at least in part, rely on social desires. The elements of language would be mentally formed in a similar process to the intuition logic ideas, slowly being refined with repeated failures, generally through social experiences.
This chaotic and regressive model of learning and thought is something that I’ve been developing for a while, particularly over the last year. Undoubtedly the model is influenced by my experiences with neural networks, and my experiences education more generally. I sense it has been influencing how I approach thinking about a range of issues, from education strategies to political philosophies, so I thought I’d try to get it out in a post. I’ve also enrolled in a introduction cognitive psychology class this semester, so it’ll be interesting to see how my ideas fit in with the academic theories and evidence.
1. It might be described as an identity or person, but that’d be a bit of a tangent from my current train of thought.
2. I use the term “idea” here somewhat abstractly as a concept of mental datum. An initial idea could be the meaning of a word when the word is first heard.
3. Noted because while I had the general idea I hadn’t figured out exactly where this post was headed or how it would get there until I wrote it.
4. Could be synonymous with consciously.