Aldridge v MOUSLEY - [2006] SASC 191

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Electoral Petition)
ALDRIDGE v MOUSLEY
[2006] SASC 191
Judgment of The Honourable Chief Justice Doyle
4 July 2006
CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - ELECTIONS AND RELATED MATTERS - METHODS OF VOTING
Electoral petition – petition claims orders declaring void the election for the South Australian House of Assembly electoral district of Taylor and for the Legislative Council – petition claims that the Electoral Commission failed to distribute information that would enable electors to cast a free and informed vote and that certain provisions in the Electoral Act 1985 (SA) are inconsistent with the exercise of a free or informed vote – matters raised do not disclose a basis on which to declare void any election - certain matters raised are non-justiciable – petition dismissed.
Electoral Act 1985 (SA) s 8(1)(c), s 63(4)(a), s 76, s 76(2), s 76(3), s 76(4), s 93(2), s 94(1), s 94(1)(b), s 94(4), s 94(6), s 95(5)(d), s 95(5)(d)(i), s 95(5)(d)(ii), s 95(5)(d)(iii), s 103, s 104, s 104(1)(a), s 105, s 107, s 107(3)(b), s 110, s 111; Supreme Court Rules 1987 (SA) r 25.04; Constitution Act 1934 (SA) s 14(1)(a), referred to.
Abbotto v Australian Electoral Commission (1997) 144 ALR 352; Featherston v Tully (2002) 83 SASR 302, applied.

ALDRIDGE v MOUSLEY
[2006] SASC 191
Civil: Electoral Petition

DOYLE CJ: Mr Aldridge has filed a petition addressed to the Supreme Court sitting as the Court of Disputed Returns exercising the jurisdiction conferred on it by s 103 of the Electoral Act 1985 (SA) (“the Act”).
He claims an order declaring void the election for the House of Assembly electoral district of Taylor. The election took place under the Act on 18 March 2006 as part of a general election for the House of Assembly.
Mr Aldridge voted at the election for the seat of Taylor. In his petition he claims that he was not able to make a free choice of the candidate for whom he wished to vote. There are two reasons why his vote was not freely exercised. First, because he lacked adequate information to exercise an informed vote. Second, he wished to vote for one candidate only, indicating no preference for any other candidate. But the Act requires that he mark his ballot paper by indicating an order of preference for all candidates at the election, so requiring him to vote for candidates for whom he did not wish to vote, or have his ballot paper treated as informal, unless the candidate for whom he wished to vote had registered a voting ticket, in which event, again contrary to his wishes, his ballot paper would be treated as indicating a preference for other candidates in accordance with that ticket.
Mr Aldridge claims that in this way he and other like-minded voters were denied a free choice and denied an informed vote, and the election should be declared void.
Mr Aldridge also claims an order declaring void the election to supply the vacancies in the Legislative Council, held at the same time as the general election of members of the House of Assembly, as required by s 14(2) of the Constitution Act 1934 (SA). For the purpose of that election the whole of the State constitutes the Legislative Council electoral district: s 14(1)(a) of the Act.
Mr Aldridge voted at this election also. His petition raises the same complaints in relation to the election for the Legislative Council as it does in relation to the election for the House of Assembly.
The issue that I must determine is whether the petition should be dismissed on the grounds that the Court cannot grant the orders sought.
The petition
Subject to one matter the petition meets the formal requirements stated by s 104 of the Act.
The petition is signed by Mr Aldridge, who is a qualified voter. It is duly attested by two witnesses. It was filed within 40 days after the return of the writs. Mr Aldridge made the required deposit of $200 as security for costs. The petition sets out the relief that he claims, including an order declaring the election void.
It may be that the petition does not set out facts that would enable the Court to declare the election void: see s 104(1)(a). But it is not necessary to examine that question more closely because, as will appear, I consider that the petition should be dismissed in any event.
Counsel for the Electoral Commissioner informed me that notice of the petition had been given to the candidate elected for the district of Taylor. The elected candidate has informed the Commissioner that at this stage she does not wish to be heard. Mr Aldridge has given notice of the petition to all members of the Legislative Council. None of them applied to be heard on the petition.
The Commissioner’s application
The Electoral Commissioner is the respondent to the petition: s 105.
She has made an application for summary judgment under r 25.04 of the Supreme Court Rules, on the ground that the orders sought are beyond the powers of the Court, and on the ground that the petition discloses no matter upon which the Court could make an order under s 107 of the Act declaring the election void and requiring a new election to be held.
It is not necessary to decide if r 25 applies to a petition under the Act. The Court has an inherent power to dismiss a petition, or to order that no proceedings be had on it, if the Commissioner makes good her submission: cf Abbotto v Australian Electoral Commission [1997] HCA 18; (1997) 144 ALR 352; (1997) 71 ALJR 675.
The orders sought
The claim made in the petition for an order declaring the election void is a proper claim.
The petition also claims an order, or perhaps a recommendation, that the Electoral Commissioner adequately inform all voters about their range of choices, and that future elections comply with the Commonwealth Electoral Act 1918 (Cth). The Court cannot make such an order or recommendation. But Mr Aldridge told me, in the course of submissions, that he did not press these claims.
An informed choice
The first part of the petition asserts that the Electoral Commissioner has a duty to ensure that electors are adequately informed about candidates and about their policies, so that an elector can cast an informed vote. The right to an informed vote is said to be essential in a democracy, and to be recognised by various international agreements.
The petition asserts that Mr Aldridge was not able to get information on the candidates at the election “and their agenda”. A booklet sent to electors by the Commissioner is said to have lacked “adequate information, to enable voters to … cast freely chosen and/or informed votes”.
The Court cannot declare the election void on the basis of these allegations.
The Commissioner has no obligation to inform electors about candidates or about their policies. The names of candidates must, of course, appear on ballot papers, but Mr Aldridge seeks more than that. Section 8(1)(c) of the Act provides as follows:
Powers and functions of the Electoral Commissioner
8 (1) The Electoral Commissioner-
…
(c)is responsible for the carrying out of appropriate programmes of publicity and public education in order to ensure that the public is adequately informed of their democratic rights and obligations under this Act;
But that provision deals with information about the entitlement to vote, and how to vote, and how elections are conducted. The provision does not require the Electoral Commissioner to inform electors about candidates or their policies. It would not be practicable for the Electoral Commissioner to do this. For example, a candidate might not have the required information ready in time for printing and distribution. A candidate might decline to provide information. A candidate might provide material that should not be distributed by the Commissioner, or that is too voluminous to be distributed.
The Act operates in a society in which freedom of speech exists. In enacting the Act Parliament must have assumed that candidates for election would provide such information as they saw fit, and would distribute it as they saw fit. No doubt Parliament assumed that electors would rely on the media, on any material that might be distributed or made available by candidates, and on their own enquiries. There is nothing in the Act to suggest that the validity of an election is conditioned on individual candidates providing sufficient information to enable electors to make an informed judgment about them.
There is nothing in s 107 of the Act which would empower the Court to declare the election void on the basis presently under consideration. In particular, the absence of information about candidates could not be treated as “an irregularity in, or affecting, the conduct of the election”: s 107(3)(b). Nor is there any principle which is part of the common law of elections that would permit the Court to act on the basis of this allegation. The common law of elections was held by the Court in Featherston v Tully [2002] SASC 243; (2002) 83 SASR 302 to be applicable, subject to the impact of any specific provision of the Act.
Accordingly, relief cannot be granted on the basis of the matters alleged in the first part of the petition.
A free choice
The second part of the petition complains that Mr Aldridge was unable to choose freely a candidate of his choice. The allegations in the petition relate to the election for the Legislative Council and also for the electoral district of Taylor in the House of Assembly.
I deal first with the election for the House of Assembly.
The petition alleges, as is the case, that by s 76(2) of the Act Mr Aldridge was required to indicate an order of preference for all candidates in the election.
The petition also alleges, as is the case, that by s 93(2) of the Act, if a voting ticket is registered in relation to a candidate, and a voter marks a ballot paper by placing the number 1 in the square opposite the name of that candidate, an order of preference for other candidates not having been indicated, the ballot paper will “be taken to have been marked in accordance with that voting ticket”.
The result of these and other provisions of the Act is that if Mr Aldridge placed the number 1 in the square opposite the name of the candidate of his choice, and indicated no further preference, his ballot paper would be informal because of the failure to indicate a preference for all candidates, unless effect could be given to the ballot paper under the provisions relating to voting tickets: s 94(1) and s 94(4). Accordingly, Mr Aldridge, and other like-minded voters, are unable to cast a valid vote for their candidate of choice only, indicating no preference for any other candidate, unless the ballot paper can be given effect under the provisions relating to registered voting tickets, in which event the ballot paper will be given an effect opposed to the choice and wishes of Mr Aldridge, and like-minded voters.
Mr Aldridge’s complaint and submissions are, in substance, a complaint about the provisions of the Act.
Section 76 of the Act is central to the provisions relating to voting. In relation to a House of Assembly election it provides as follows:
Marking of votes on ballot papers
76      …
(2)     In a House of Assembly election, a voter must mark his or her vote on the ballot paper by placing the number 1 in the square opposite the name of the candidate for whom he or she votes as his or her first preference, and consecutive numbers in the squares opposite the names of the remaining candidates so as to indicate the order of preference for all candidates.
(3)     For the purposes of this Act, where a voter places a tick or a cross on a ballot paper, the tick or cross will be taken to be equivalent to the number 1.
This provision is supplemented by s 93, dealing with the interpretation of ballot papers in House of Assembly elections. That section provides the circumstances in which a ballot paper will be taken to have been marked in accordance with a voting ticket. By s 63(4)(a) a voting ticket must:
… indicate by consecutive numbers commencing with the number 1 an order of preference for all candidates in the election …
These provisions in turn are complemented by s 94, which provides the grounds on which a ballot paper is informal. The relevant provisions of s 94 are as follows:
Informal ballot papers
94    (1)     Subject to this section, a ballot paper is informal if -
…
(b)it has no vote indicated on it, or it does not indicate, in the manner required by this Act, the order of the voter's preference for all candidates in the election; or
…
(3)     Where a voter indicates by consecutive numbers commencing with the number 1 the order of his or her preference for all candidates on a ballot paper except one -
(a)    the ballot paper is not informal; and
(b)it will be presumed that the candidate for whom no preference is expressed is the one least preferred by the voter and that the voter has accordingly indicated the order of his or her preference for all candidates.
(4)     A ballot paper to which effect can be given under the provisions of this Division relating to registered voting tickets is not informal by reason of subsection (1)(b).
…
(6)     Where -
(a)a ballot paper has not been marked by a voter in the manner required by this Act; but
(b)    despite that fact, the voter's intention is clear,
the ballot paper is not informal and will be counted as if the voter's intention had been properly expressed in the manner required by this Act.
(7)     A ballot paper is not informal except for a reason specified in this section.
Subsections (1)(b) and (4) reflect respectively the provisions in s 76 and in s 93.
Subsection (6) covers cases in which the requirements of the Act as to the marking of a ballot paper have not been satisfied, but the voter’s intention is clear. For example, the required number indicating an order of preferences might not have been written in the square opposite the name of each candidate, but might be clearly indicated nevertheless. Or, a voter might write “first”, “second” and so on, rather than use numbers. There are other possibilities.
However, to operate consistently with the other provisions referred to, s 94(6) can apply only if the intention that is clear is an intention indicating an order of preference for all candidates.
There are several reasons why this must be so.
The provisions as to the scrutiny of votes proceed on the basis that a valid ballot paper will indicate a preference for candidates other than the candidate who received the voter’s first preference. If no candidate secures an absolute majority of first preference votes after the first preference votes have been counted, there is to be a further scrutiny. Section 96(5)(d) provides as follows:
Scrutiny of votes in House of Assembly election
96 …
(5) If no candidate has received an absolute majority of first preference votes, the district returning officer –
…
(d)must proceed with the scrutiny and the counting of the votes as follows:
(i)the candidate who has received the fewest first preference votes will be excluded, and each ballot paper counted to that candidate is to be counted to the candidate next in the order of the voter's preference; and
(ii)if no candidate then has an absolute majority of votes, the process of excluding the candidate who has the fewest votes, and counting each of that candidate's ballot papers to the unexcluded candidate next in the order of the voter's preference, is to be repeated until 1 candidate has received an absolute majority of votes; and
(iii)the candidate who has received an absolute majority of votes will be elected.
This provision will be effective only if a ballot paper that has not been rejected as informal indicates an order of preference for candidates after the candidate for whom the first preference was given.
Moreover, to treat as valid a ballot paper that indicates a preference for one candidate only would be to contradict the provisions found in s 76(4) and in s 94(1)(b).
Treating such a ballot paper as valid would also give rise to an inconsistency with the provisions relating to voting tickets. Those provisions require a ballot paper marked by placing a number 1 in the square opposite the name of one candidate, and indicating no further preference, to be treated as marked in accordance with a voting ticket if one is registered. Section 94(4) emphasises that such a ballot is saved from informality under s 94(1)(b) only by the provisions relating to registered voting tickets. Such a ballot paper cannot be counted among the unrejected ballot papers if it is to be interpreted as indicating a preference for one candidate only.
For those reasons I conclude that the Act requires that a ballot paper for a House of Assembly election be marked so as to indicate an order of preference for all candidates, but a ballot paper will not be informal if it does not do so but can be given effect under the provisions relating to registered voting tickets.
If that is the effect of the provisions of the Act, the matters alleged in Mr Aldridge’s petition cannot support an order declaring the election void.
The Electoral Commissioner must count the ballot papers as required by the Act. Compliance with the requirements of the Act cannot amount to a contravention of one of the provisions of the Act, such as the prohibition of intimidation in s 110. Nor can it amount to an interference with the free exercise of a right under the Act, contrary to s 111 of the Act. Nor can it amount to an irregularity in the conduct of the election. None of these provisions can be taken as applying to something that is required by the Act. The scrutiny of votes in accordance with the Act cannot, to use an expression found in Featherston v Tully [2002] SASC 243; (2002) 83 SASR 302 at [147], amount to a denial of:
… a fair and free opportunity of electing the candidate which the majority might prefer …
Nor can it amount to the prevention of voting “by official errors”, or lead to a conclusion that the election was “not really conducted under the Electoral Act at all”: at [148].
The reason for this is that the election, or at least the scrutiny of ballot papers, must be conducted in accordance with the law of the State. An elector does not have a right to vote as Mr Aldridge wishes to vote, because the right to vote is controlled by the Act, and the Act denies Mr Aldridge that right.
I understand the point that Mr Aldridge makes. I accept that there will be other electors who agree with him. Such persons object to having to indicate a preference for a candidate other than their preferred candidate. They object to a requirement of the law that unless they indicate an order of preference for all candidates, their ballot papers may be treated as informal. But that is the effect of the Act.
For those reasons, to the extent that the petition claims that the election should be declared void because a ballot paper marked by placing the number 1 in the square opposite the name of a single candidate, and indicating no further preference, is at risk of being treated as informal, the petition fails to state a ground upon which the order sought could be made.
I turn now to the election for the Legislative Council.
I am satisfied that the petition fails to state a ground upon which the election could be declared void. I will state my reasons for that decision briefly. They are essentially the same as my reasons for dismissing the petition in relation to the election for the House of Assembly.

Section 76(1)(a) of the Act requires a voter in a Legislative Council election to “indicate the order of preference for all candidates” by placing the number 1 and consecutive numbers in the squares opposite the name of the candidates.
If the ballot paper contains a “voting ticket square” the voter has the option of placing the number 1 in that square: s 76(1)(b). A voting ticket must indicate “an order of preference for all candidates in the election”: s 63(4)(a). Section 92 determines the circumstances in which, and the manner in which, a ballot paper will be taken to have been marked in accordance with a voting ticket.
Section 94(1)(b) requires a ballot paper to be treated as informal if “… it does not indicate, in a manner required by this Act, the order of the voter’s preference for all candidates in the election …”. Accordingly a ballot paper in relation to an election for the Legislative Council will be informal if it does not indicate an order of preference for all candidates, or cannot be taken to do so by virtue of a registered voting ticket: s 94(4). The provisions of s 95 for the scrutiny of votes in a Legislative Council election proceed on the basis that the surplus votes of an elected candidate will be distributed by reference to preferences indicated on the ballot paper or by a voting ticket: see, for example, s 95(7) and s 95(10). The scheme of s 95, as I understand it, would be defeated if the Returning Officer was not required to treat as informal a ballot paper that did not indicate an order of preference for all candidates.
In those circumstances s 94(6) must be read as saving from informality ballot papers in relation to which “the voter’s intention is clear”, in the sense of indicating an order of preference for all candidates, but the manner of marking to indicate that intention is not “the manner required by this Act”.
As I have already said in relation to ballot papers for an election to the House of Assembly, s 94(6) will operate consistently with other provisions of the Act only if it is so interpreted.
Conclusion
For those reasons the petition must be dismissed. It fails to set out grounds upon which the orders sought, or any order under the provisions of the Act, could be made.