Activist penalised for explaining the law

October 2, 1991

By Peter Boyle

MELBOURNE — Harry van Moorst and Sue Graham could lose their home soon. They have two young children and Sue is expecting a baby in late October.

Four p.m. Friday, September 27 was the final deadline set by the Australian Government solicitor for Harry to pay $8,873.50 — a "penalty" for pointing out during the 1987 elections that under federal electoral laws, voters have the right to vote informally and to limit their preferences.

Harry van Moorst was one of several activists in the Coalition Against Poverty and Unemployment involved in a "Don't Vote" campaign. They distributed material urging voters to vote informal by writing slogans on their ballot paper to signal "a plague on both your houses" to the major parties.

CAPU material also pointed to anomalies in the electoral act which inadvertently allowed voters to avoid giving preferences to either major party.

The Australian Electoral Commission took out four injunctions against CAPU, and the matter eventually went to the Supreme Court, where van Moorst and others defended themselves. In July 1987, the Supreme Court ruled that it was legal to vote informal and therefore it was equally legal to encourage people to do so (so long as there was nothing misleading about such encouragement).

The court also decided that it was legal to publicise the alternative preferential voting system allowed through a loophole created by 1983 amendments to the Electoral Act.

However, the court also ruled that, because the "Don't Vote" slogan was ambiguous, it would grant an injunction preventing the campaign from presenting itself in a way that might encourage people to refrain from attending the polling booths and having their names crossed off the roll, a proposal which CAPU would have agreed to if it had been offered by the AEC, van Moorst says. The AEC hadn't made such an offer and instead opted to take the matter to court.

The court further decided that one of the leaflets published by the campaign might be taken for a facsimile of a ballot paper. While the judge refused to confirm this, a mere picture of numbered boxes beside a list of candidates seemed to be construed as such, says van Moorst.

Again, the campaign was prepared to make the necessary amendments, but the AEC then insisted that costs be awarded against van Moorst because CAPU was an unincorporated body. Cost of $8,873.50 were awarded.

Since then van Moorst has sought a waiver of the costs by the government. Letters have been written to Prime Minister Bob Hawke and Senator Nick Bolkus, the minister for administrative services.

Van Moorst has been supported by the Council of Civil Liberties and ps and individuals, on the grounds that the penalty was unfair and that van Moorst could not afford to pay the costs.

After waiting months for official replies, van Moorst was finally advised this year that he had to pay up or have his property seized by the sheriff and sold. According to a source within the AEC, the Victorian electoral commissioner is "pathologically determined" to get van Moorst because the AEC lost on all substantive issues before the Supreme Court.

"They were done like a dinner in the Supreme Court", van Moorst told Green Left Weekly, "and this is the only revenge they can get".

Senator Bolkus has advised him that he is not prepared to intervene with the AEC, and is now out of the country.

"The Hawke government", says van Moorst, "should have the guts to face up to their mistakes and either live with the law as it is or try to amend it to remove the right not to distribute exhaustive preferences. If they did the latter, they'd have to justify it before the public."

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