The Australian High Court in Focus
Langer voting system tested

Information supplied by Joe Bryant in the public interest. January 1999.

We have an opportunity to fix the problems.

Please take a good look at the Alternative Three Project.

Attached please find copies of the processes filed in the High Court of Australia, one of which was relegated down to the Federal Court for hearing.

The federal court heard and decided this matter after, charging additional fees and giving the matter the status of a fresh matter including the charging of fees. The judgement was orally handed down from the bench after about one hour of hearing. The written judgement was not made available for 13 days despite much chasing up. The judgement does not cover all the points raised in the argument. The federal Court refused to hear any constitutional argument on the basis that that was to be heard by the High Court.

To sum up the judgement.. A preference ceases to be a preference if it is given to more than one candidate. This is a nonsense. For instance, we are all aware of preference shares where thousands of people may be issued identical preference shares.

When I filed the appeal against this judgement thirteen days after the hearing, it was accepted and the $1011 fee paid. But it was to late as the matter had been determined on an interlocutory basis and an appeal must be filed within seven days in an interlocutory matter.

In other words the appeal must be filed 6 days before the written judgment is available. An application to have an appeal out of time was made and refused.

The Constitutional matter originally filed remains on foot in the High Court awaiting a hearing date.

The federal court judgement is so obviously wrong it is laughable. But the question is not finally resolved until the High Court hears the case.

What the Federal Court judgement and the appeal refusal did, was allow the 1998 election to proceed illegally or otherwise and at the same time deny a citizen a right to justice.

One problem with Australian law, is that bad judgements stand until somebody with sufficient funds ( Hundreds of thousands) decides to challenge. But the major problem is the courts deliver legal decisions as opposed to just decisions. The cause, is there is no longer a basis for/of justice in Australian law.

Justice and mercy and for that matter the Australian way of a fair go are no longer a part of our court system. Our Courts were once (not any longer) under the Crown as separate to government, the Crown was bound to deliver justice, governments are not. This separation of power is one of the most fundamental to the continuing delivery of justice. Government must not control the courts nor the courts control government, as is the case with The High Court. The system we borrowed has been manipulated to suit vested interests. The system we believe we have, we don’t fact have. There is nowhere in the British system where a court of any standing has been placed over the parliament, except in Australia.

 

IN THE HIGH COURT OF AUSTRALIA No. 126-1998

SYDNEY OFFICE OF THE REGISTRY 

BETWEEN JOSEPH RICHARD BRYANT - Plaintiff

AND THE COMMONWEALTH OF AUSTRALIA - Defendant

WRIT of SUMMONS

ELIZABETH THE SECOND, by the Grace of God Queen of Australia and Her other realms and Territories, Head of the Commonwealth.

To the Commonwealth of Australia C/o The Australian Government Solicitor 133 Castlereagh Street Sydney New South Wales 2000.

We command you that within twenty one days after the service of this writ on you, inclusive of the day of such service, you do cause an appearance to be entered for you in Our High Court of Australia in an action at the suit of Joseph Richard Bryant, and take notice that, in default of your so doing, the plaintiff may proceed therein, and judgment may be given in your absence.

Witness: Chief Justice of Australia, the day of , in the year of Our Lord One Thousand nine hundred and ninety eight.

Registrar.

N.B.- This writ is to be served within twelve calendar months from the date thereof, or, if renewed, within six calender months from the date of the last renewal, including the day of such date, and not afterwards.

If the defendant resides or carries on business in the State of State of New South Wales, his appearance to writ may be entered, either personally or by solicitor, at the Sydney Registry of The High Court of Australia, Queens Square, Sydney 2000.

If the defendant neither resides nor carries on business in the State of New South Wales in which District Registry is situated, his appearance to this writ may be entered, either personally or by solicitor at The Sydney Registry of The High Court of Australia, Queens Square, Sydney 2000

The plaintiff’s claim is for,

  1. An order to prohibit the implementation, operation and enforcement of the

Electoral and Referendum Amendment Act 1998.

The plaintiff’s Statement of Claim is filed herewith.

This writ was issued by the plaintiff in person, who resides at 30 Mt Vernon Road Kemps Creek in the State of New South Wales, and whose address for service is Joseph Richard Bryant C/- 72 / 4 Elizabeth Bay Road Elizabeth Bay 2011.

 

IN THE HIGH COURT OF AUSTRALIA

SYDNEY OFFICE OF THE REGISTRY. No. S126 / 1998

I, Joseph Richard Bryant of 30 Mt Vernon Road, Kemps Creek, New South Wales, Clerk, make oath and say as follows;

  1. I am the applicant in this matter.
  1. I am a Commonwealth elector, resident in New South Wales
  2. There is urgency in my Summons and application for a stay in the implementation, operation and enforcement of the Electoral and Referendum Amendment Act 1998.
  3. The Referendum Amendment Act 1998 is ultra-vires the Constitution of The Commonwealth of Australia.
  4. The Referendum Amendment Act 1998 removes express conditions set down in the said Constitution that allow me to directly choose who I wish to sit in the House of Representatives in the Commonwealth Parliament as my representative.
  5. The Referendum Amendment Act 1998 removes express conditions set down in the said Constitution that allows me to directly choose who I wish to sit in the Commonwealth Senate to represent the State of New South Wales in the Commonwealth Parliament.
  6. The applicant seeks an order that prevents in total the application of The Referendum Amendment Act 1998 in its present form.
  7. In the alternative an order to prevent in total the implementation, operation and enforcement of section 125 of The Referendum Amendment Act 1998.

Sworn at Sydney this day of nineteen hundred and ninety eight.

 

Justice of the Peace. Joseph Richard Bryant / Plaintiff

 

IN THE HIGH COURT OF AUSTRALIA

SYDNEY OFFICE OF THE REGISTRY. No. S126/1998

 

 

BETWEEN JOSEPH RICHARD BRYANT

Plaintiff

 

AND THE COMMONWEALTH OF AUSTRALIA

Defendant

  1. The High Court of Australia holds original jurisdiction to determine this matter subject to Section. 75 (iii) of The Constitution of The Commonwealth of Australia.
  2. The plaintiff is a natural Australian born person having obtained voting age.
  3. The defendant is and has at all material times been the Commonwealth legislator responsible for the Electoral and Referendum Amendment Act 1998.
  4. The Referendum Amendment Act 1998 is ultra-vires The Constitution of The Commonwealth of Australia.
  5. The Referendum Amendment Act 1998 assumes a prepollent position over, part of Section 7. of The Constitution of The Commonwealth of Australia in that it removes the express condition that senators shall be directly chosen by the people of each State.
  6. The Referendum Amendment Act 1998 assumes a prepollent position over, part of Section 24. of The Constitution of The Commonwealth of Australia in that it removes the express condition that House of Representative members shall be directly chosen by the people of the Commonwealth.
  7. The Referendum Amendment Act 1998 misleads, entraps and forces the applicant into voting for candidates that he directly chooses not to vote for, and in so doing works to make null and void the constitutional express condition of direct choice.
  8. There is no provision in The Constitution of The Commonwealth of Australia that enables the Commonwealth Legislature to pass laws that in effect remove the direct choice of an elector in choosing who he or she may prefer to elect.
  9. There is no provision in The Constitution of The Commonwealth of Australia that enables the Commonwealth Legislature to pass laws that in effect force electors to vote for candidates that they would not otherwise vote for.
  10. As a result of items 9 and 10 above the Commonwealth Parliament has enacted law that contains requirements beyond the Commonwealth Parliament’s Constitutional power.

     

  11. An order that the Electoral and Referendum Amendment Act 1998 is contrary to the requirements of The Constitution of The Commonwealth of Australia and therefore invalid.
    1. An order that the Electoral and Referendum Amendment Act 1998 contains provisions that are contrary to international law and therefore invalid.
    2. That Electoral and Referendum Amendment Act 1998 be suspended.
    3. In the alternative, An order that the amendment contained in the Electoral and Referendum Amendment Act 1998 numbered 125 is invalid.
    4. An order that the amendment contained in the Electoral and Referendum Amendment Act 1998 numbered 125 is unenforceable.
    5. Such further or other Orders as the Court may deem appropriate.
    6. Costs.

 

DATED :

____________________________________

Plaintiff

 

The Applicant's address for service is: The Applicant's address is:

JOSEPH RICHARD BRYANT JOSEPH RICHARD BRYANT

C/- 72/4 Elizabeth Bay Road 30 Mt Vernon Road Kemps Creek

Elizabeth Bay 2011 New South Wales 2171.

Phone: 02-9623- 6177.

(IN THE FEDERAL COURT OF AUSTRALIA )

(NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 1020 / 1998

(GENERAL DIVISION )

BETWEEN: JOSEPH RICHARD BRYANT Plaintiff

AND: THE COMMONWEALTH OF AUSTRALIA Defendant

SUMMONS

The plaintiff will at on ,1998, at Queens Square, Sydney move the Court for orders:-

  1. The Commonwealth of Australia be restrained from printing, distributing and publishing items of information, memoranda, notices, articles, bulletins, advertisements or any other material contrary to the decision of the Full Court of the Federal Court of Australia in the decision of Australian electoral Commission-v- Albert Langer (No1)(1996) 59 FCR 450.
  2. The Commonwealth of Australia be ordered to ensure its compliance with its obligations with the above Laval ruling and to take all necessary steps to notify the Australian electorate correctly of the law relating to ss.240 and 268 of The Commonwealth Electoral Act 1918 as amended, so as to protect the rights of all electors to a free and direct choice of their candidate under the terms of the Constitution of the Commonwealth of Australia and the aforesaid Full Court ruling.

Dated: September 1998. _____________________________________

Joseph Richard Bryant, Plaintiff.

JOSEPH RICHARD BRYANT Defendant, C/-

Address for service; The Australian Government Solicitor

C/- 72/4 Elizabeth Bay Road 133 Castlereagh Street

Elizabeth Bay, 2011 Sydney 2000

Fax: 02-9623-6177

IN THE HIGH COURT OF AUSTRALIA )

SYDNEY OFFICE OF THE REGISTRY. ) No. S126 of 1998

 

AFFIDAVIT

I, Joseph Richard Bryant of 30 Mt Vernon Road, Kemps Creek in the State of New South Wales, Clerk, MAKE OATH AND SAY as follows:-

  1. I am the plaintiff in the proceedings before this Honourable Court herein and I respectfully draw the Honourable Court’s attention to my Statement of Claim in the Writ herein dated 4th September 1998.
  2. I further respectfully draw the attention of this Honourable Court to the orders and relief that I seek in relation to this Application herein.
  3. That the Australian Electoral Commission by publication on and after the 17th July
  1. The Full Court of the Federal Court in the decision of Australia Electoral Commission-v- Albert Langer (No 1)(1996) 59FCR 450, clearly decided that failure to comply with s240 of the Commonwealth Electoral Act as amended is explicitly excluded from being a reason for a vote to be informal by the deliberate words of s268(3) of the said Act.
  2. I respectfully submit that the contradictions between s240 and s268 of the Commonwealth Electoral Act are not pointed out in the said publications, neither is the ruling of the Full Court of the Federal Court pointing out that,
  3. " Although expressed in mandatory language S240 does not impose a legally enforceable duty on the voter to mark his or her vote on the ballot paper in the manner stated in the section. The question was examined by the High Court in Langer-v-The Commonwealth which is authority for the proposition that S240 was intended not to impose a legal duty on the voter, but to be interpreted as if to give directions to a voter as to how the voter is to discharge a statutory duty to vote in a Federal election".
  4. I respectfully submit that in the circumstances of the current Federal election any issue such as this, which will wrongfully direct the citizens of Australia to vote in a way which may be contrary to their wishes; and the law is of paramount consideration of the public interest of the citizens of Australia and could eventually bring into dispute any Parliament elected under the existing guidelines as disseminated by the Australian Electoral Commission thereby affecting peace, order and good government essential to the functioning of our legal system and democracy.
  5. Under the current circumstances if S240 and S268 were applied in the manner proposed by the Australian Electoral Commission, in a number of electorates where at the conclusion of the distribution of preferences only two candidates remain, neither of whom have attained an absolute majority, the contrary application could prevent the election of any candidate to represent the people by reason of the fact that the inclusion of votes which are formal under S268 but which do not flow to either of the two remaining candidates, could prevent any candidate from attaining an absolute majority.
  6. Under the circumstances here set out I submit that "time is of the essence" and accordingly request that this Honourable Court grant the orders sought in my application herein.

 

SWORN by the Deponent )

at in the State )

of this day of 1998.) ---------------------------------------

This Summons was taken out by:

Joseph Bryant.

Prepared by:

Wayne Levick & Associates

Solicitors,

1,13 Flushcombe Road

BLACKTOWN 2148

Federal Court of Australia

Joseph Richard Bryant v Commonwealth of Australia [1998] 1242 FCA (30 September 1998)

Last Updated: 8 October 1998

(IN THE FEDERAL COURT OF AUSTRALIA )

(NEW SOUTH WALES DISTRICT REGISTRY ) No.

(GENERAL DIVISION )

 ON APPEAL FROM HIS HONOUR JUSTICE WILCOX

BETWEEN: JOSEPH RICHARD BRYANT

Appellant

AND: COMMONWEALTH OF AUSTRALIA

Respondent

NOTICE OF APPEAL

(Order 52, r12)

The appellant appeals from the whole of the judgement of Wilcox J given on 30 September 1998 in matter No.1020 of 1998, in the Federal Court of Australia at Sydney.

GROUNDS:

His Honour erred in finding that the true meaning of the word preference prevented the allocation of equal preference in any circumstance and in particular in the allocation of an electors preferences in a general election for members of the Commonwealth Parliament.

3. His Honour erred at law in finding that Section 268(c) of the Commonwealth Electoral Act 1918 as amended imposed a mandatory obligation on each elector.

4. His Honour erred at law in finding that Section 268(c) of The Commonwealth Electoral Act 1918 as amended imposed a mandatory obligation on electors to cast ballots other than by the elector's direct chosen preference contrary to the prior ruling of the Full Court of the Federal Court of Australia and the High Court of Australia..

C/- 74/4 Elizabeth Bay Road

JOSEPH RICHARD BRYANT Elizabeth Bay 2011

PH: 02-9623-6177.

FAX: 02-9623-7133

Page 2.

  1. His Honour erred at law by finding that although Section 268( c ) of the Commonwealth Electoral Act 1918 had not been amended by the electoral and referendum Amendment Act 1998 an amendment to s240 of the said Act had the effect of amending s268(c) in such a manner as to declare informal any vote cast in such a manner that if an elector marked his or her ballot paper giving equal last preference to certain candidates after allocating preferences in strict numerical order of all candidates including the final preference contrary to the prior decision of the Full Court of The Federal Court of Australia that all such votes are formal votes within the meaning of the Act and the Commonwealth Constitution
  2. His Honour erred at law in that a strict understanding of His Honour’s ruling on the meaning of preference invalidated all "Above the line" votes for the election of the Senate thereby materially affecting the outcome of the election denying citizens their constitutional right of selecting Senators.
  3. His Honour’s rulings have created a defect in the Commonwealth Electoral Act 1918 whereby the Australian Electoral Commissioner was instructed to ignore formal votes legally cast within the meaning of the prior decision of the Full Court of The federal Court of Australia by declaring them to be informal thereby preventing the election of any candidate in any electorate holding a vote of less than 50% of the formal votes cast acknowledged under His Honour’s ruling plus the votes rendered formal by the prior decision of the Full Court.
  4. His Honour erred in not ordering the Commonwealth of Australia and all its agents including the Australian Electoral Commission to do all necessary things to counter incorrect advise and direction given by the Australian Electoral Commission to the electorate regarding preference allocation in the general election held on 3rd October 1998. 

ORDERS SOUGHT:

  1. A declaration that the outcome of the 3rd October 1998 General Election of the Commonwealth Parliament could have been materially effected by information supplied and direction given by the Australian Electoral Commission to electors and election officials that dealt in the allocation of electors preferences.
  2. A declaration that the outcome of the 3rd October 1998 General Election of the Commonwealth Parliament could have been materially effected by the decision of The Court in Matter No 1020 of 1998.
  3. An order , ordering The Commonwealth of Australia and its agent the Australian Electoral Commission place in the Court’s custody, for safe keeping pending the final resolution of this matter and matter No.126 of 1998 in the High Court of Australia, all the ballot papers that were declared to be informal during the counting of votes in the October1998 General Election
  4. The issue of a Writ of Probation against the Commonwealth of Australia and its agent the Australian Electoral Commission prohibiting the declaration of individual seats allegedly won as a result of 3rd October 1998 election.
  5. A declaration that the direct choice of an elector to allocate the electors preference for candidates standing for election to the Commonwealth Parliament is a matter for the elector only.
  6. A declaration that ballot papers indicating the clear intention of the elector not be determined as informal.
  7. A declaration that ballot papers that show the direct choice of equal preference for a number of the candidates other than the candidate given the electors first preference not be declared informal.

To the respondent:

COMMONWEALTH OF AUSTRALIA

133 CASTLEREAGH STREET

SYDNEY NSW 2001

TAKE NOTICE:

(a) Before taking any step in the proceeding you must enter an appearance in the Registry, unless you have already entered an appearance pursuant to Order 52, rule 7.

(b) The papers in the appeal will be settled before the Registrar at on

The appellant's address for service is:

JOSEPH RICHARD BRYANT

DATE: 12 October 1998

___________________________________

Appellant