Blakey v Elliott

Two petitions were presented to the High Court of Australia, sitting as the Court of Disputed Returns, by Albert Edward Howarth Blakey and Edward Findley. The petitioners sought declarations that Robert Charles Dunlop Elliott and Harry Sutherland Wightman Lawson were not duly elected as senators for Victoria in the Federal Parliament at the December 1928 election. The dispute arose from the rejection of 11,289 ballot-papers as informal, which the petitioners argued could have altered the election outcome.

The central legal issue before the Court was the proper construction and application of the Commonwealth Electoral Act 1918-1928, specifically concerning the method by which voters must indicate their preferences on ballot-papers in a Senate election. The Court was required to determine whether the Act mandated a strict numerical succession of preferences and, if so, whether ballot-papers marked with a break in this numerical sequence were correctly rejected as informal.

Starke J. held that the Act imperatively required voters to indicate their preferences by numbers in numerical succession. This conclusion was based on the language of section 123(1)(a) of the Act, which referred to placing numbers "next in numerical order," and the directions provided on the ballot-paper itself (Form E in the Schedule), which also stipulated marking preferences with numbers "next in numerical order after those already used." Furthermore, the proviso to section 135(9)(b) contemplated situations involving "a break in the consecutive numbering of preferences." Consequently, the 11,289 ballot-papers, which had been marked with numbers 1, 2, 3, 4, and 6, were deemed informal as they did not follow the prescribed numerical succession. The Court found that provisions such as sections 133(2), 193, and 217, which allow for substantial compliance or consideration of voter intention, were immaterial when the Act laid down a definite and imperative rule for marking preferences and declared non-compliance as rendering a ballot-paper informal.

As the rejection of these 11,289 ballot-papers was found to be lawful, and it was admitted that other disputed votes could not affect the result, the petitions were dismissed without costs.