A further footnote to history in connection with the determination and reporting of referenda results resides in the Year Books 1942-43 and 1944-45, a footnote Justice Kirby may find interesting even if it is a bit dreary to OLO readers, if indeed he doesn't know it already.

The detailed content of the proposed Commonwealth Powers Act of 1942 was published on pages 63 to 66 of Year Book Australia 1942-43.

The detail and result of the 19 August 1944 Constitution Alteration (Post-War Reconstruction and Democratic Rights) referendum was first reported in Year Book Australia 1942-43, (and no, its not a typo.) on page 64 thereof. That report consisted of a two-line mention of the date of the referendum and a reference to the fact that the referendum results could be found (you guessed it!) in the Appendix. The Appendix is headed by a parenthetical notation which says:

"(Recent information and returns which have come to hand since the various chapters were sent to press are given hereunder)."

It is to be noted that in the text of Chapter III, on page 64, this referendum is referred to as having already been held and the results known. In that circumstance, the publication of the table showing the results in the Appendix was done not for the reason stated thereon, but because it was not wanted on display for some reason with the main text up front in Chapter III.

The second reporting of the 1944 referendum was in Year Book Australia 1944-45 in Chapter III-General Government, not in an Appendix as had happened in the previous edition. This time the table included, in addition to the 'Yes', 'No', and Informal totals, a column showing percentages of the formal vote constituted by each of the 'Yes' and 'No' votes.

The important difference was that the 1944-45 reporting presented again to both public and Parliamentary view an error sown in earlier Year Books that the informal vote was to be disregarded in determining a result in a referendum proposing alteration of the Constitution.

Try this link John. http://forum.onlineopinion.com.au/thread.asp?discussion=967 It might mean something to you if you can wade through it all. Also http://www.aph.gov.au/house/committee/em/elect04/subs.htm Subs 123 and 161 if you have the time. We got a real big problem.

Oops, my immediately preceeding post seems a bit out of place here doesn't it? That'll teach me to try and be on the phone and typing a post at the same time. You can forget who you are typing/talking to. As there are no posts other than this one following it, it won't offend me or appear sinister if someone wants to press the big red X and have it removed for being off-topic. The first link is to one of my posts in the Technical Support thread, and the second I will place on that thread just in case anyone has used it and needs to refer to it again.

Just by way of clarification, in my third post in this thread I stated that the apparent error in method of determination of a referendum result had crept in after the 1910 referenda. That could be slightly misleading. The 1910 Year Book reports, in the Appendix at page 1187, the substantive outcomes of the referenda held on 26 April 1911.

The reporting format for the 26 April 1911 referenda results published in YBA 1910 was either advised to, or decided upon by, the Commonwealth Statistician BEFORE the Chief Electoral Officer of the Commonwealth could have published any statement as to the results of the referenda in the Gazette. This can be said because the result published in the Year Book was an interim result as at 1 May 1911, only five days after the referenda had been conducted, with that fact precluding the possibility of there having been, as at the Year Book publication deadline, any formal statement as to result published in the Gazette by the Chief Electoral Officer.

Whether the order of publication of the respective tabulations of results is indicative of there having been any external attempt to influence the manner in which the Chief Electoral Officer reported the referenda results of 1911 is open to question.

Further to the clarification in the preceeding post, the table at page 1187 of YBA 1910 makes no mention of informal votes. It does have a column headed "Majority Against" in the tabulation of results for each question.

The extent of the informal vote is able to be calculated from the final results published on page 839 in YBA 1914. Informal votes are not mentioned by name in the final results table, but a column is headed "Electors to whom Ballot Papers were Issued". Experience would indicate that the difference between total paper issues and the combined total of votes for and against is pretty close to being the informal vote total.

The failure to expressly account in the YBA 1914 tabulation for informal votes, should it have been a reflection of the Chief Electoral Officer's 1911 statement in the Gazette, was serious enough should it have come to be taken as a precedent for result determination in circumstances of a future result being very close. If, on the other hand, informal votes were recorded in the Chief Electoral Officer's gazetted statement, then it is difficult to see why they were not so reported in the Year Books.

Granted, informal vote totals could not have been provided with the 1911 interim results (which overall results they could not have affected), but this should not have become an excuse for their omission from the 1914 final results table. As can be seen, the 1911 Year Book tabulation format was not just slavishly copied in the 1914 Year Book, so why did this apparent departure from the Constitution continue?

CJ Morgan,

You last post is incredibly naïve. There is no statutory definition of contempt. Judges can and have interpreted it widely.

The mere existence of such wide arbitrary powers cannot but have a CHILLING effect on comment about judicial processes and the judiciary.

In the case I cited Judge Clive Wall in Townsville had merely to speculate aloud about whether he should cite the Mayor and councilors in contempt. That forced them to hire a legal team to argue their case.

Do you think they will be so forthright in their criticism next time?

What is the effect on other councils that don’t like judicial decisions affecting their towns and cities?

The sinister part of contempt is that the affected judge can act as his OWN JUDGE, JURY AND EXECUTIONER.

Let me rephrase my question.

Why should individuals and the media not have the same right to attack any judge in the same manner in which they are free to attack the Prime Minister?

Why should our dictators in fancy dress have greater immunity from criticism than our head of government?

Why should Kirby (or any other judge) have greater immunity from criticism than John Howard or any other Prime Minister?

stevenlmeyer,

As a footnote to the discussion on this thread, an article published in the SMH on Monday 1 October 2007 by Justice Kirby may set your mind somewhat at ease. (The full text of the speech, made on Saturday 29 September 2007, is downloadable as a PDF from this link: http://www.hcourt.gov.au/publications_05.html#MichaelKirby .)

The article referred to the recent decision of the High Court striking down the 2006 amendment to the Commonwealth Electoral Act that had taken away the right to vote from all prisoners in Australia. Whilst matters of contempt were not the subject of the speech reported, some insight into the Court's thinking with respect to the protection of the exercise of your constitutional right to choose (and by implication, criticise) your governors is given.

Justice Kirby, on page five of the full version of his speech stated "This week ...... the nation's institutions corrected themselves." He was referring to the operation of the judicial process of the High Court, as emplaced by the Constitution. He had earlier observed that "Hitler's Germany and Stalin's Soviets were full of law. Yet at critical moments, justice was missing. There were black holes where the law was silent and justice had no say. The rule of law did not run to defend the weak, the unpopular and the vulnerable."

Contempt powers exist to protect, in the ultimate, this institutionalised capacity for self-correction. I don't think, in the light of this, that you need be unduly concerned that citation for contempt, or the reminder of it, is used other than to preserve this capability.

Justice Kirby also observed that "There is no more precious office in our Commonwealth than that of citizenship." It is to be hoped this decision will open the way to restitution of the right to enroll and vote removed from perhaps one million permanently resident British subjects in 1984. The Constitution would appear to recognize them as part of "the bedrock identity of Australian society." They, and electoral roll accountancy, remain in a legislative 'black hole'.