Brahim, S. v Commonwealth Electoral Commission
[1991] FCA 466
•16 AUGUST 1991
Re: SEPTU BRAHIM; LEN COLBUNG; SPENCER RILEY and WILLIAM YARRAN
And: THE COMMONWEALTH ELECTORAL COMMISSIONER
No. WA G14 of 1991
FED No. 466
Elections
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Olney J.(1)
CATCHWORDS
Elections - secret ballot - Regional Council Election Rules made under Aboriginal and Torres Strait Islander Act 1989 - requirement that Regional Council election rules be not inconsistent with the Act - statute providing that elections be conducted by secret ballot - whether rules were consistent with Act.
Aboriginal and Torres Strait Islander Act 1989 ss. 110 - 113
Cameron v Australian Workers Union (1959) 2 FLR 45
Hibbert v Federated Clerks Union of Australia (1983) 76 FLR 372
Federated Liquor and Allied Industries Employees Union of Australia, NSW Branch; ex parte Pullen (1990) 34 IR 264
HEARING
MELBOURNE
#DATE 16:8:1991
Counsel for the applicants : Dr J.L. Cameron
Solicitor for the applicants : Aboriginal Legal Service
Counsel for the respondents : Mr C.J.L. Pullen QC and Mr P.L. Thompson
Solicitor for the respondents: Australian Government Solicitor
ORDER
The application be dismissed.
The applicants pay the respondents' costs of the application.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This application pursuant to section 5 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) raises a question as to the validity of certain portions of the Regional Council Election Rules (the rules) made by the Minister for Aboriginal Affairs pursuant to section 113 of the Aboriginal and Torres Strait Islander Commission Act 1989 (ATSIC Act).
The applicants together with one Michael Blurton (who was originally an applicant but who has discontinued his application) were the applicants in proceeding WAG 16 of 1991 (Blurton and others v Minister for Aboriginal Affairs) in which judgment was given by French J on 17 May 1991. Nothing in the present application turns upon French J's decision.
It appears that in this proceeding the respondent may be wrongly named. Having regard to the provisions of subparagraph 5(1) of Schedule 4 to the ATSIC Act, the decision which the applicants seek to have reviewed was made by the Australian Electoral Commission. The proceedings have however been conducted without objection as if the decision maker was the Electoral Commissioner (incorrectly styled Commonwealth Electoral Commissioner).
At an early stage in the proceedings the respondent objected to the jurisdiction of the Court to try the application on the ground that there had not been a decision to which the ADJR Act applies in that it was said there had not been a decision made under an enactment, however, on 12 April 1991, by consent of the parties, the objection to competency was dismissed.
The general thrust of the applicants' case is that some aspects of the rules are inconsistent with section 109 of the ATSIC Act which provides:
109. Voting at Regional Council elections
shall be by secret ballot.
The argument is that as the relevant rule making power (section 113) is conditioned by the requirement that the rules be not inconsistent with the Act, it follows that if the rules do not provide for elections to be by secret ballot, they must to that extent be ultra vires.
STATUTORY FRAMEWORKThe Aboriginal and Torres Strait Islander Commission was established by the ATSIC Act. The Commission's functions as defined by section 7 include the formulation and implementation of programs for Aboriginal persons and Torres Strait Islanders, monitoring the effectiveness of such programs, developing policy proposals to meet national, state, territory and regional needs and priorities of Aboriginal persons and Torres Strait Islanders and assisting, advising and co-operating with their communities, organisations and individuals at national, state, territory and regional levels. The Commission also has the function of advising the Minister on matters relating to Aboriginal and Torres Strait Islander affairs and the co-ordination of activities of other Commonwealth bodies that affect those people.
The Commission consists of a Chairperson and 19 members appointed by the Minister of whom 17 are elected to represent each of 17 zones. Within each zone there is a number of regions and for each region a Regional Council is established. Each zone representative is elected by and from the members of the Regional Councils in that zone. The Regional Councils have their own functions including the formulation of regional plans for improving the economic, social and cultural status of Aboriginal and Torres Strait Islanders resident within their respective regions. The Councils also assist, advise and co-operate with the Commission, other Commonwealth bodies and State, Territory and local government bodies in the implementation of the regional plan and make proposals for Commission expenditure in their regions.
For the purposes of the Act, Australia is divided into 60 regions for each of which a Regional Council is established. The Act provides for the conduct of Regional Council elections in accordance with Regional Council Election Rules made by the Minister. Disputes in relation to regional and zone elections are regulated by the provisions of Schedule 4 to the Act. Under the terms of that Schedule, the validity of elections may be disputed by a petition addressed to the Federal Court signed by a candidate at the election in dispute or a person who was, or claims to be, qualified to vote at the election. A petition disputing an election may also be filed by the Australian Electoral Commission. The Minister and the Commission may appear and be represented in petition proceedings generally. By paragraph 17 of the Schedule 4 the Minister may refer to the Court any question respecting the qualification of a member of a Regional Council or a vacancy in a Regional Council.
Division 4 of Part 3 of the Act comprising sections 100 to 114 inclusive, deals with Regional Council elections. The following sections are relevant in the present context:
Regional Council elections
100. Regional Council elections shall be conducted by the Australian Electoral Commission in accordance with:
(a) the provisions of the Act; and
(b) the Regional Council Election Rules in force at the beginning of the election period. Persons entitled to vote at Regional Council elections
101. A person is entitled to vote at an election for the members of a Regional Council if and only if:
(a) the person is an Aboriginal person or a Torres Strait Islander; and
(b) either:
(i) the person's name is on the Commonwealth Electoral Roll and the person's place of living as shown on that Roll is within the region for which the Regional Council is established; or
(ii) the person is entitled to vote at the election pursuant to rules made under subsection 113(3).
........
Errors in Commonwealth Electoral Roll not to affect entitlements
103. (1) For the purposes of this Act, a person's name shall be taken to be on the Commonwealth Electoral Roll if the name appearing on the Roll is, in the opinion of an authorised Electoral Officer, sufficient to identify the person, even if:
(a) a given name of the person has been omitted from the Roll, or a wrong given name has been entered on the Roll;
(b) the person's surname has been misspelt; or
(c) the Roll does not show the person's correct address.
(2) For the purposes of this Act, a person's name shall be taken to be on the Commonwealth Electoral Roll even if his or her name as shown on that Roll has been changed because of his or her marriage.
........
Voting not compulsory
108. Voting at Regional Council elections is not compulsory.
Voting to be by secret ballot
109. Voting at Regional Council elections shall be by secret ballot.
Voting
110. (1) A voter shall cast a vote at a Regional Council election by marking the ballot paper so as to show the order of the voter's preference for the candidates.
(2) A ballot paper is formal if and only if:
(a) the authorised electoral officer is satisfied that it is an authentic ballot paper;
(b) it indicates the voter's first preference for one, and only one, candidate; and
(c) it does not have upon it any identifying mark.
(3) A ballot paper that is formal shall be given effect according to the voter's intention so far as that intention is clear.
(4) In this section:
"Identifying mark" means writing or another mark by which, in the opinion of the authorised electoral officer, the voter can be identified, but does not include writing or another mark placed on the ballot paper (whether or not in contravention of any law) by a person involved in conducting the election. Counting of votes and election of candidates
111. Votes cast at a Regional Council election shall be counted, and candidates shall be elected, as provided in Schedule 2 in the Regional Council election rules. General obligation to inform voters about elections
112. In addition to its specific obligations in relation to Regional Council elections, the Australian Electoral Commission shall take such steps as it considers reasonable to inform persons who are or may be entitled to vote at Regional Council elections about:
(a) eligibility to vote;
(b) the dates and times fixed for polling;
(c) the locations of polling places; and
(d) any other matters related to the conduct of Regional Council elections that the Australian Electoral Commission considers significant. Rules for conduct of elections
113. (1) The Minister may, after consulting the Aboriginal and Torres Strait Islander Commission and the Electoral Commissioner, make rules, not inconsistent with this Act, prescribing:
(a) the manner in which Regional Council elections are to be conducted (including elections conducted because previous elections have been declared to be void); and
(b) the manner in which casual vacancies in Regional Councils are to be filled.
(2) The matters that may be dealt with in rules under subsection (1) include, but are not limited to, the following matters:
(a) the use of an electoral roll or voter cards to establish an entitlement to vote or to make a record of the persons who have cast votes;
(b) the functions of Aboriginal and Torres Strait Islander liaison officers in connection with the determination of a person's entitlement to vote;
(c) the nomination of candidates for election;
(d) ballot papers and forms;
(e) postal voting;
(d) mobile polling, including the appointment and duties of mobile polling teams and matters relating to polling by such teams;
(g) confidentiality of voting;
(h) the employment by the Australian Electoral Commission of staff, including polling staff, in connection with elections;
(j) the scrutiny and counting of votes;
(k) the declaration of the poll.
(3) The rules may make provisions entitling Aboriginal persons and Torres Strait Islanders to vote at Regional Council elections even if those persons would not be entitled so to vote pursuant to subparagraph 101(b)(i) and, without limiting the generality of the foregoing, may make provision in relation to the following matters:
(a) the determination of the Regional Council election at which a person is entitled to vote if:
(i) the person's name is on the Commonwealth Electoral Roll; but
(ii) pursuant to a provision of the Commonwealth Electoral Act 1918, the person's place of living or address is not shown on the Commonwealth Electoral Roll;
(b) how a vote cast by a person is to be dealt with where:
(i) the person was entitled to have his or her name on the Commonwealth Electoral Roll; but
(ii) the person's name was not on that Roll because of a mistake by a person exercising powers or performing functions under the Commonwealth Electoral Act 1918;
(c) the casting of a provisional vote by a person whose name does not, on the polling day, appear to be on the Commonwealth Electoral Roll;
(d) the circumstances in which a provisional vote cast pursuant to rules made under paragraph (c) is to be accepted.
(4) The rules may provide penalties for breaches of the rules not exceeding:
(a) in the case of a natural person - $1,000; or
(b) in the case of a body corporate - $5,000.
(5) Where:
(a) the rules create an offence in relation to Regional Council elections that corresponds to an offence under the Commonwealth Electoral Act 1918; and
(b) the maximum pecuniary penalty for the offence under the Commonwealth Electoral Act 1918 exceeds the penalty that, by subsection (4), could be imposed for a breach of the rules; the rules may provide a maximum penalty for the first- mentioned offence not exceeding the maximum pecuniary penalty for the corresponding offence under the Commonwealth Electoral Act 1918, but nothing in this subsection enables the rules to provide penalties of imprisonment.
(6) In making rules under subsection (1), the Minister shall have regard to the desirability of providing for Regional Council elections to be conducted in a manner similar to the manner in which elections for the Parliament are conducted with a view to increasing Aboriginal and Torres Strait Islander understanding of, and participation in, elections for the Parliament.
(7) Nothing in subsection (6) prevents the Minister making rules:
(a) that take account of the special circumstances of Aboriginal persons or Torres Strait Islanders; or
(b) that will enable significant reductions in the costs of conducting Regional Council elections.
(8) ......
(9) ......
THE RULES
On 9 July 1990 the Minister made the Regional Council Election Rules under section 113 of the ATSIC Act which made provision for the various matters contemplated by subsection 113(2). It is unnecessary to canvass the provisions relating to matters such as the nomination of candidates, the ordering of candidates on the ballot paper, the appointment of officials and scrutineers and other administrative details associated with the conduct of an election, which provisions are similar to corresponding provisions applicable to Parliamentary elections. Provision is also made for postal and absent voting and for mobile polling.
One departure from the normal practice is the appointment of liaison officers. Rules 6 and 7 provide:
6. (1) Before polling commences in an election, the Electoral Commission in consultation with the Commission must appoint:
(a) persons to be Aboriginal and Torres Strait Islander liaison officers; and
(b) in relation to each region - a person (not being a liaison officer) to be the senior Aboriginal and Torres Strait Islander liaison officer for the region.
(2) A liaison officer or senior liaison officer must:
(a) be an Aboriginal person or a Torres Strait Islander; and
(b) be over the age of 18 years; and
(c) reside in the region for which he or she is appointed and be enrolled in respect of that region; and
(d) not be:
(i) a candidate for election in the election for which he or she is a liaison officer or senior liaison officer; or
(ii) a member of the staff of, or a consultant to, the Commission.
7. A liaison officer must be present at all times during:
(a) which polling is in progress at:
(i) a polling booth; or
(ii) a special hospital; or
(b) mobile polling.
The voting procedure to be followed for the casting of votes at a polling booth and the functions of liaison officers in that process is set out in rules 73-80 inclusive:
73. (1) The presiding officer must ask each person attending before him or her and claiming to vote in an election if they have voted before in the election.
(2) In addition to the question put under subrule
(1) the presiding officer must ask each person claiming to vote as an absent voter in an election to identify the region in respect of which the person is enrolled.
(3) A person's claim to vote must be rejected if:
(a) the person refuses to answer fully any question put to him or her by the presiding officer; or
(b) the presiding officer establishes that the person has voted before in the election.
(4) If a person's claim to vote is not rejected, the presiding officer must then hand to the person a voter card envelope and ballot-paper, duly initialled by the presiding officer, for the region in respect of which the person claims to be enrolled.
74. The voter must complete the voter card envelope.
75. The presiding officer, at the request of a scrutineer, must note any objection by the scrutineer to the right of any person to vote and keep a record of the objection.
76. (1) The particulars recorded on the voter card envelopes completed at a polling place comprise the record of the name of each voter:
(a) who casts a vote at the polling place; and
(b) in the case of an absent voter - of the region in respect of which the voter declares under rule 67 that he or she is enrolled.
(2) The voter card envelopes completed at a polling place must, at the close of the poll, be forwarded to the appropriate Regional Returning Officer.
(3) The presiding officer at a polling place must make a record of the name of each elector who casts a declaration vote at the polling place and, in the case of an absent voter, of the region in respect of which the elector declares under subrule 67(1) that he or she is enrolled, and must, at the close of the poll, forward the record, duly certified by him or her, to the appropriate Regional Returning Officer.
77. Except as otherwise prescribed by these Rules, the voter upon receipt of the ballot-paper without delay:
(a) retire alone to some unoccupied compartment of the booth, and there, in private, mark his or her vote on the ballot-paper; and
(b) fold the ballot-paper so as to conceal his or her vote; and
(c) insert the ballot-paper into the voter card envelope; and
(d) seal the voter card envelope; and
(e) present the envelope to the liaison officer present in the booth.
78. (1) The liaison officer must decide whether, on the balance of probability, the voter who has presented him or her with their voter card envelope under paragraph 77(e) is an Aboriginal person or a Torres Strait Islander.
(2) For the purposes of subrule (1), the liaison officer may ask each person who has presented him or her with their voter card envelope such questions as the liaison officer considers necessary to establish that the person is an Aboriginal person or a Torres Strait Islander.
(3) Where a liaison officer decides that a person who has presented him or her with their voter card envelope is not an Aboriginal person or a Torres Strait Islander the liaison officer must annotate the person's voter card to that effect.
(4) If the liaison officer decides that a voter is an Aboriginal person or a Torres Strait Islander, the liaison officer must not annotate the voter's voter card envelope.
(5) The liaison officer must then hand the envelope back to the voter who must deposit the envelope in the ballot box.
(6) Where the liaison officer annotates the voter card envelope under subrule (2), the liaison officer must advise the voter:
(a) that the voter may seek a review of the liaison officer's decision by the senior liaison officer; and
(b) of the procedures by which the review process can be instigated; and
(c) that the voter's ballot-paper will not be admitted to the scrutiny unless the senior liaison officer decides that the voter is an Aboriginal person or a Torres Strait Islander.
79. (1) Where a person's voter card has been annotated by a liaison officer under subrule 78(3), the person may request a review of the decision by the senior liaison officer for the region.
(2) A request under subrule (1) must:
(a) be in writing and may be in the approved form; and
(b) be given to the presiding officer before the person leaves the polling booth after casting his or her vote.
(3) If a presiding officer has assisted or has permitted a person to be assisted in voting under rule 81, the presiding officer must assist the person in complying with subrule (2).
(4) Where a person requests a review under subrule
(1), the person may, within 7 days after the request is given under subrule (2), provide further information to the senior liaison officer to support his or her claim to be an Aboriginal person or a Torres Strait Islander.
(5) On receiving:
(a) the request under subrule (1); and
(b) the further information (if any) provided by a person under subrule (4);
the senior liaison officer must review the person's claim to be an Aboriginal person or a Torres Strait Islander and:
(c) if the senior liaison officer is satisfied on the balance of probability that the person is an Aboriginal person or a Torres Strait Islander - advise the Regional Returning Officer to that effect; or
(d) if the senior liaison officer is not satisfied that the person is an Aboriginal person or a Torres Strait Islander - advise the Regional Returning officer that the liaison officer's decision has been upheld.
(6) The senior liaison officer must, in writing, advise the person of his or her decision under subrule (5).
(7) Subject to subrule (8), the senior liaison officer must, as soon as practicable, advise the Regional Returning Officer of his or her decision in relation to each request for review.
(8) The review by the senior liaison officer under subrule (5) must be completed not later than 8 days after the close of the poll.
80. The elector must quit the booth immediately after:
(a) if the liaison officer has not annotated the elector's voter card envelope - the elector has placed his or her voter card envelope in the ballot-box; or
(b) if the liaison officer has annotated the elector's voter card envelope and:
(i) the elector requests a review of the liaison officer's decision - the elector completes his or her request for review under subrule 79(1); or
(ii) the elector does not request a review of the liaison officer's decision - the elector has placed his or her voter card envelope in the ballot-box.
Subject to rules which have specific application to postal and absent votes (defined in rule 2(1) as declaration votes) rule 92 provides for the scrutiny of votes:
92. (1) The scrutiny of votes other than declaration votes must be conducted by:
(a) the Regional Returning Officer; or
(b) at the direction of the Regional Returning Officer - an Assistant Returning Officer; in the presence of any scrutineers that choose to attend and any other persons approved by the Regional Returning Officer.
(2) The officer conducting the scrutiny in relation to a region must:
(a) open all parcels or ballot-boxes sent to him or her under subrule 69(8) or 71(11) or received from polling places in the region in which voter card envelopes have been placed; and
(b) place in one parcel the voter card envelopes that:
(i) do not bear the name of the voter; or
(ii) do not bear a properly completed certification by the voter or a certification made on the voter's behalf under rule 81, as the case may be, that he or she is an Aboriginal person or a Torres Strait Islander;
and seal the parcel and endorse on the parcel the description of the contents and the name of the region and the date; and
(c) place in another parcel for further scrutiny the voter card envelopes that have not been annotated by a liaison officer; and
(d) place in another parcel the voter card envelopes that have been annotated by a liaison officer and in relation to which a request for review of the liaison officer's decision has been made to the senior liaison officer; and
(e) place in another parcel the voter card envelopes that have been annotated by a liaison officer and in relation to which no request for review of the liaison officer's decision has been made and seal the parcel and endorse on the parcel the description of the contents and the name of the region and the date.
(3) On receiving advice from the senior liaison officer under subrule 79(7) in relation to the eligibility of voters whose voter card envelopes are held in the parcel referred to in paragraph (2)(d) the officer conducting the scrutiny must:
(a) in relation to the voter card envelopes of those voters who the senior liaison officer is satisfied are Aboriginal persons or Torres Strait Islanders:
(i) take the annotation made on the voter card envelope by the liaison officer to be cancelled; and
(ii) place those envelopes with the envelopes held for further scrutiny under paragraph
(2)(c); and
(b) in relation to the voter card envelopes of those voters who the senior liaison officer is not satisfied are Aboriginal persons or Torres Strait Islanders:
(i) place the envelopes in a parcel; and
(ii) seal the parcel and endorse on the parcel the description of the contents and the name of the region and the date.
(4) The officer must in relation to the voter card
envelopes in the parcel referred to in paragraph (2)(c):
(a) place in one parcel the voter card envelopes of persons who he or she is satisfied are enrolled in respect of the region, and:
(i) without further examining the voter card envelope of any voter or permitting any other person to do so, withdraw from each envelope in the parcel the ballot-paper contained in the envelope; and
(ii) without inspecting or unfolding the ballot-paper or allowing any other person to do so, immediately deposit the folded ballot-paper in a ballot-box for further scrutiny; and
(iii) seal the parcel of envelopes and endorse on the parcel the description of the contents and the name of the Region and the date; and
(b) place in another parcel the voter card envelopes of persons who he or she is satisfied are not enrolled in respect of the region and seal the parcel and endorse on the parcel the description of the contents and the name of the region and the date.
(5) Where an officer conducting the scrutiny in relation to a region (in this subrule referred to as the "relevant region") who is dealing under subrule (4) with an envelope is:
(a) satisfied that the elector who signed the declaration on the voter-card envelope is not enrolled in respect of the relevant region; and
(b) satisfied that, if the voter were enrolled in respect of the relevant region, the ballot-paper contained in the envelope would be accepted under subrule (4) for further scrutiny; and
(c) satisfied after making such inquiry as may be necessary, that the voter was, at the time of voting, entitled to be enrolled in respect of the relevant region and was not so enrolled by reason of an error or mistake by an officer; the officer must accept the ballot-paper for further scrutiny.
(6) The further scrutiny referred to in subparagraph
(4)(a)(ii) may be conducted although all the envelopes containing voters' ballot-papers for the region have not been received.
(7) At the further scrutiny, the officer conducting the scrutiny must:
(a) open the ballot-box referred to in subparagraph
(4)(a)(ii) and examine the ballot-papers it contains; and
(b) reject all ballot-papers that are informal under subsection 110(2) of the Act and place them in a parcel, seal the parcel and endorse on the parcel the description of the contents and the name of the region and the date; and
(c) arrange the formal ballot-papers scrutinised under the names of the respective candidates by placing in one parcel under the name of each candidate all the ballot-papers marked in accordance with subrule 83(1) on which a first preference is indicated for that candidate; and
(d) deal with the ballot-papers in accordance with Schedule 2 of the Act.
THE FACTS
The following statement of agreed facts was tendered by mutual consent at the trial of the application:
1. On 3 November 1990 there were 60 Regional Council elections held throughout Australia pursuant to the Aboriginal and Torres Strait Islander Commission Act (the ATSIC Act).
2. By 7 December 1990 all Regional Council election results had been declared.
3. By letter dated 11 December 1990, the Aboriginal Legal Service on behalf of various unidentified clients requested the respondent to dispute the Regional Council elections conducted in Western Australia and elsewhere pursuant to paragraph 5 of Schedule 4 of the ATSIC Act.
4. By letter dated 13 December 1990 the respondent advised the Aboriginal Legal Service of his decision not to contest the Regional Council elections (the decision). Both letters, together with subsequent correspondence, are annexed to the Affidavit of Michael Blurton sworn and filed in support of the application.
5. In making the decision the respondent took into account:
(i) The requirement of Section 109 of the ATSIC Act that voting at the Regional Council elections shall be by secret ballot;
(ii) That the Regional Council Election Rules provided a procedure under Rule 92(4)(a)(i) and (ii) that the ballot papers were to be removed from the voter card envelopes in such a manner as to ensure that they were not examined or inspected by the officer of the Australian Electoral Commission or any other person.
(iii) That the Australian Electoral Commission had issued an ATSIC Regional Council Election Procedures Instruction Manual which prescribed a detailed procedure for the scrutiny of the ballot papers in accordance with the Rules.
(iv) The general public importance of the question posed by the applicants.
6. In making the decision the respondent had no evidence from the Aboriginal Legal Service or any other source of any breach of the Rules having occurred in respect of the scrutiny of the ballot papers for the Regional Council elections or of any voter refusing to vote because of the requirement to complete a voter card envelope.
7. In making the decision the respondent did not, inter alia, take into account:
(i) that his involvement in the formulation and implementation of the Rules brought into question by the applicants' request might create a reasonable apprehension of bias on his part in the minds of the applicants; and
(ii) the theoretical possibility that there may have been a breach by one or more of the respondent's employees for the Regional Council election in the proper opening of voter card envelopes and scrutiny of ballot papers.
(iii) the theoretical possibility that electors may have decided not to vote because the indorsement required on the voter card envelope caused them to believe that their vote would not be secret.
As the application for review is in respect of a decision dated 24 December 1990, it is appropriate to set out details of the correspondence referred to in paragraph 4 of the agreed statement of facts leading up to the decision.
ABORIGINAL LEGAL SERVICE OF WESTERN AUSTRALIA (INC.) December 11, 1990
Electoral Commissioner,
Australian Electoral Commission,
West Block, Queen Victoria Terrace, PARKES, ACT.
FAX (062) 714 558
Dear Sir,
re: A.T.S.I.C. ELECTIONS The Service has been approached by a number of Aboriginal persons dissatisfied with the conduct of the recent A.T.S.I.C. elections. The most serious complaint, which is apparently of Australia-wide application, is that voters were required by Returning Officers to write their names and addresses on the outside of the envelope in which ballot papers were to be placed. This obviously meant that the ballot was not secret, since it would have been obvious to polling booth staff and to scrutineers present at the opening of the ballots how individuals had voted. A number of potential voters refused to vote in such circumstances. It is claimed that it is in fact known in the Aboriginal community how individuals have voted. This complaint has, with others, been referred to the Service's counsel, who advises that in his view the procedure contravenes the explicit provisions of section 109 of the Aboriginal and Torres Strait Islander Commission Act 1989, which requires that voting at Regional Elections shall be by secret ballot.
Clause 5 of Schedule 4 of the Act entitles the Electoral Commission to file an election petition disputing an election. The purpose of the present letter is to enquire whether the Commission is prepared to dispute the elections conducted in Western Australia and elsewhere on that ground. The matter is obviously of considerable urgency since petitions must be filed within 40 days. If the Commission is not to proceed, it would be the intention of clients of the Commission to file petitions seeking to declare void the elections in at least some of the regions in Western Australia. Your immediate response is requested. Yours faithfully,
Rajesh Choudree
Principal Legal Officer
AUSTRALIAN ELECTORAL COMMISSION Mr Rajeesh Choudree
Principal Legal Officer
Aboriginal Legal Service of Western Australia (Inc) PO Box 8194
PERTH, STIRLING STREET WA 6849
Dear Mr Choudree,
Thank you for your letter of 11 December 1990 regarding the conduct of the recent ATSIC Regional Council elections and in particular the question of whether the elections constituted a secret ballot and further whether this Commission will dispute the elections on that ground. The Commission is of the opinion that the elections were conducted in accordance with the Aboriginal and Torres Strait Islander Commission Act 1989 (the Act) and the Regional Council Election Rules (the Rules) in force at the beginning of the election period (as required by section 100 of the Act), and will therefore not be disputing the elections on the grounds that the conduct of the elections contravened the secrecy provisions of the Act or Rules. You may find of assistance some information regarding the procedures in place to ensure the secrecy of the voting process. Rule 74 provides that the voter must complete the voter card envelope.
Rules 76 to 79 detail the process to be followed by the voter in completing the voter card envelope and ballot papers and by the polling officials in issuing them. Rule 76 states:
"The particulars recorded on the voter card envelopes completed at a polling place comprise the record of the name of each voter...." Rule 77 prescribes how the voter is to mark his ballot paper in private and seal it in the voter card envelope before presenting it to the liaison officer for the purpose set out in Rule 78 after which the voter is to deposit the envelope in the ballot box (78(5)).
Rule 81 details the process for assisting certain voters in the completion of the voter card envelopes and the ballot papers.
Rules 90 to 94 detail the method of conducting the scrutiny. The returning officer must first determine whether the voter is eligible to vote by being enrolled on the Commonwealth electoral roll for an address in the region. The address shown on the voter card envelope is required for this purpose. Particular attention should be taken of Rules 92(4)(a) and 93(4)(a):
"The officer must in relation to the voter card envelopes in the parcel referred to in paragraph
(2)(c) (these are those which were not objected to by a liaison officer in a polling place):
(a) place in one parcel the voter card envelopes of persons who he or she is satisfied are enrolled in respect of the region, and:
(i) without further examining the voter card envelope of any voter or permitting any other person to do so, withdraw from each envelope in the parcel the ballot-paper contained in the envelope; and
(ii) without inspecting or unfolding the ballot paper or allowing any other person to do so, immediately deposit the folded ballot-paper in a ballot box for further scrutiny; and
(iii) seal the parcel of envelopes and endorse on the parcel the description of the contents and the name of the Region and the date...."
Rule 92(7)(a) states:
"At the further scrutiny, the officer conducting the scrutiny must:
(a) open the ballot box referred to in subparagraph
(4)(a)(ii) and examine the ballot papers it contains...."
Clearly the rules by which the scrutiny is conducted
preclude the matching of a voter's name with the vote he or she recorded.
Finally Rule 105 states:
"A person who is, or has been, an officer or a scrutineer must not, except for the purposes of Part 4 (The Scrutiny), either directly or indirectly, divulge or communicate any information with respect to the vote of an elector acquired by him or her in performance of his or her functions, or in the exercise of his or her powers, under these Rules in a manner that is likely to enable the identification of the elector. Penalty: $1000."
The Rules in these respects substantially follow the Commonwealth Election Act 1918 (CEA). In particular, the Rules relating to the scrutiny of voter card envelopes were drawn from the provisions of the CEA relating to the scrutiny of declaration votes, that is absent, postal and provisional/section votes.
I have enclosed a copy of the Regional Council rules used for these elections.
Yours sincerely,
(Signed: B. Cox)
B Cox
Electoral Commissioner
13 December 1990.
ABORIGINAL LEGAL SERVICE OF WESTERN AUSTRALIA (INC.) December 18, 1990
Electoral Commissioner,
Australian Electoral Commission,
West Block, Queen Victoria Terrace, PARKES, ACT.
FAX (062) 714 558.
Dear Mr Cox,
re: A.T.S.I.C. ELECTIONS Thank you for your letter of 13 December and for enclosing the Regional Council Election Rules. We have referred your letter to counsel who advises that where there is a conflict between the provisions of the Act and the rules made pursuant to the Act, with which he was already familiar, the Act must, as a matter of law, prevail. We note that you have not addressed the provisions of section 109 of the Act. The Commonwealth Electoral Act is an unreliable guide to the preparation of rules because there is no provision in that Act that elections be by way of secret ballot, although that intention is implicit in a number of provisions.
We ask that you reconsider the matter and let us have your decision by return in the light of the matters we have raised. raised.
Yours sincerely,
Rajesh Choudree
Principal Legal Officer
AUSTRALIAN ELECTORAL COMMISSION Mr R Choudree
Principal Legal Officer
Aboriginal Legal Service
of Western Australia (Inc)
PO Box 8194
PERTH WA 6849
ATSIC Regional Council elections
I refer to your letter faxed to us on 19 December. 2 This Commission is confident in the appropriateness of the Regional Council Election Rules and in the secrecy of the ballot. The Electoral Commissioner sees no reason for, and will not be lodging, a petition to the Federal Court of Australia disputing any of the Regional Council elections. 3 You have previously referred to claims 'that it is in fact known in the Aboriginal Community how individuals have voted.' We dispute that any such claims could have an origin in the system of 'provisional' voting used for the election and requiring ballot papers to be enclosed in an envelope bearing the voters details. Nevertheless, in addition to any petition your clients may choose to pursue, they may also wish to raise the question of the voting system used (and suggested amendments to it) in the context of the review of the electoral system to be conducted by the Aboriginal and Torres Strait Islander Commissioner during 1991. (Signed)
P Dacey
for Electoral Commissioner
24 December 1990
THE ISSUE
The central issue raised by the application is whether the rules relating to the conduct of elections and the scrutiny of votes are consistent with the statutory requirement that elections shall be by secret ballot.
The Act does not define the term secret ballot but an important indication of Parliament's intention is to be found in subsection 113(6) which directs the Minister, in the exercise of his rule making function, to have regard to the desirability of providing for Regional Council elections to be conducted in a manner similar to the manner in which elections for the Parliament are conducted.
In the following paragraphs I propose to canvass material from various sources which may be of assistance in determining the meaning of the words used in section 109.
(a) Dictionary definitions
The Macquarie Dictionary (2nd Revised Edition) defines 'secret ballot' as a method of secret voting by means of printed or written ballots, or by means of voting machines. The same publication refers to 'Australian ballot' as a ballot which ensures secrecy in voting, originally used in South Australia.
In The Concise Oxford Dictionary, under the general heading of 'Secret' the term 'secret ballot' is described as a ballot 'in which voters' choices are not made public.'
In the New Oxford Dictionary 'ballot' is defined as a small ball used for secret voting; hence, by extension a ticket, paper etc. so used. (b) Second reading speech
In moving the second reading of the bill which became the ATSIC Act, the then Minister for Aboriginal Affairs said in the House of Representatives on 4 May 1989:
Voting System
One matter which had not been settled at the time of my statement to the Parliament last month was the system of voting for regional councils. I made it clear then that the Government would prefer to have a system which did not involve the establishment of a separate role based on race, and that it would explore certain possibilities with the Australian Electoral Commission. I can now inform the House that it is proposed that the electoral system will have the following features:
Voters fill out a 'voter card' which is printed on an envelope. The voter will certify that he or she is an Aboriginal or Torres Strait Islander person, enrolled on the Federal Electoral Roll at an address within the region. Each polling booth will have at least one Aboriginal or Torres Strait Islander Liaison Officer. If the Senior Liaison Officer is of the view that a person is not eligible to vote, he or she must note that fact on the voter-card envelope.
Those people whose eligibility to vote has been challenged will have seven days to produce evidence of their Aboriginality. If they do so their votes will be involved in the count. Those people whose votes are not counted will be able to have the matter heard in the Court of Disputed Elections. Completed ballot papers are sealed inside the voter's 'voter card' envelope, and are opened only if the vote is not rejected, and once the count begins. Postal votes close off six days after the poll. Postal votes will be witnessed by a person on the electoral roll in the normal way. The sealed 'voter card' envelope will be endorsed by a second person who is either an Aboriginal or Torres Strait Islander person who is an office-bearer of an Aboriginal Corporation active in the region, or a member of the staff of ATSIC. The endorsement will certify that the person voting is in fact an Aboriginal or Torres Strait Islander. A false certification of Aboriginality will be an offence under the electoral rules. The Australian Electoral Commission will satisfy itself that all voters are enrolled at an address which is in the relevant region. The vote of any person not on the federal electoral roll at an address within the relevant region will be rejected.
The Commission will prepare for each region a statement showing the particulars of all cases where voter cards have been set aside on the grounds that the voter was not an Aboriginal or Torres Strait Islander person. The statement will be available for inspection by interested parties. This system will ensure that Aboriginality or Torres Strait Islander status is open to challenge and determination on an open and fair basis, and will avoid the negative factors associated with the establishment and maintenance of a special public roll for Aboriginal and Torres Strait Islander people. The system outlined will be part of the election rules to be gazetted under part 3 of the Bill, and could be disallowed by the Parliament. (Hansard, 4 May 1989, p 1996)
(c) Commonwealth Electoral Act 1918
The Commonwealth Electoral Act 1918 is a consolidation of the law relating to Parliamentary elections. It applies to elections for the Senate and the House of Representatives. Provision is made for there to be rolls of electors for each State and each Territory which are comprised of subdivisional and divisional rolls. Entitlement to vote is determined by the elector's name being on the appropriate roll. On polling day an elector is entitled to vote at any polling place for the Division for which he or she is enrolled but may also vote as an absent voter at any other polling place within the State or Territory for which he or she is enrolled. The Act contains provisions relating to postal, pre-poll and provisional votes, which together with absent votes are referred to as declaration votes. The method of recording declaration votes and the rules for the conduct of a preliminary scrutiny thereof are substantially the same as those contained in the rules in relation to voting at Regional Councils.
The Commonwealth Electoral Act does not contain any specific provision requiring that elections be conducted by secret ballot. There is, of course, no occasion for such a provision as each step in the electoral process is regulated by the statute itself. It is, however, an offence for an officer to mark a ballot paper in a way that would enable any person to identify the voter to whom it is issued and also for an officer or scrutineer, or former officer or scrutineer, either directly or indirectly to divulge or communicate any information with respect to the vote of an elector acquired by him or her in the performance of functions or the exercise of powers under the Act or regulations in a manner that is likely to enable the identification of the elector.
(d) Judicial precedentsIn the course of argument counsel referred to a number of English decisions touching upon the question of the secrecy of a ballot but I do not refer to them for the reason that the legal and political environment in which those cases have arisen is sufficiently different from the Australian context as to warrant no real authority being ascribed to them. I do, however, deal with three relevant Australian decisions.
i) Cameron v Australian Workers Union
(1959) 2 FLR 45
Section 133(1)(a) of the Conciliation and Arbitration Act 1904-1959 provided that the rules of a registered organisation shall provide that elections for office within the organisation be by secret ballot. The relevant rules provided each financial member of an organisation be issued with a membership ticket which must have printed thereon, but separable from the main body of the ticket, 8 voting steps. Members voting at an election were required to attach the appropriate voting slip to his ballot paper. The rules provided that each membership ticket should bear the member's number and although there was no requirement in the rules that the member's number appear on the voting slip, as a matter of practice each voting slip was so numbered. Membership rolls were maintained whereby the identity of the member could be ascertained by reference to his membership number.
In the course of proceedings in the Australian Industrial Court pursuant to section 140(1) of the Conciliation and Arbitration Act in which declarations were sought concerning the validity of a number of the organisation's rules (in the case of the election rules on the ground that they were contrary to the Act) Spicer CJ said (at p 63-4):
The purpose of attaching the number of the voter to the ballot paper was not to enable his manner of voting to be discovered, but was an aid in tracing impersonation. While secrecy of the ballot was desirable, it was equally desirable that impersonation should be traceable and thus rendered capable of punishment, and its wrongful effects rectified. This is the justification which can be advanced for a procedure which may be thought to be capable of destroying absolute secrecy, and indeed, such was the reason advanced for the appearance on the ballot paper of the number in this case. It is perhaps not without significance that the Commonwealth Electoral law has never contained provisions similar to those which operated in Victoria prior to 1938. It may be that by the beginning of the 20th century the conception of a secret ballot had developed into one in which absolute secrecy was preserved as far as the ballot paper was concerned and that this concept outweighed all other considerations. Here we are concerned with the meaning to be given to the words "secret ballot" in a Commonwealth Act of 1951 applicable in relation to elections in organizations under the Conciliation and Arbitration Act. I think these words do contemplate a ballot in which nothing will appear on the ballot paper capable of identifying the voter other than what he puts there himself in the act of voting. The degree to which the practice of attaching a voter's number to a ballot paper in a union election may operate to destroy secrecy is greater than in a Parliamentary election. The electorate is much smaller and the chance of the number of the voter being known or his identity ascertained from it by persons who may see the ballot papers is, I think, of great moment than in a Parliamentary election. For these reasons I am of opinion that the elections in the Australian Workers' Union as at present conducted do not conform to the standard required by s. 133.
And at p 74 Dunphy J said:
One result of this system is obvious - anyone sufficiently interested could obtain any member's union card and then, through a scrutineer or even a returning officer, ascertain details of the vote cast by the member concerned. It was said in evidence that the identity of voters with their ballot papers had been ascertained in the past in this manner for the purposes of sheeting home certain fraudulent electoral practices.
There is no doubt that this system has certain material advantages to the union administration and there is equally no doubt that it militates very strongly against the principle of a "secret" ballot. Whatever may be the history of the development of the "secret" ballot we are here dealing with the modern statute for the "secret" ballot requirements were first inserted in the Act as late as 1951. A ballot conducted under the foregoing system is not, in my opinion, "secret". However, the objectionable part of the system, i.e., the numbering of the voting slips, is not the result of a provision of the rules of this organization and these proceedings are brought, and could only be brought, against the provisions of a rule or a part of a rule or an "omission" has herein before defined. I think this objection fails.
ii) Hibbert v Federated Clerks Union of Australia (1983) 76 FLR 372
The rules of a branch of an organisation provided that every ballot paper in an election have printed on it a number together with the endorsement:
This number is for the purpose of preventing any irregularity. No:
All ballot papers have been so shuffled that identification of any number with any person is impossible. YOUR VOTE IS SECRET.
In an election, each of the 4500 ballot papers printed for use in the election was endorsed:
This number is for (sic) purpose of preventing any irregularity. No: (Printed was a number between 1 and 4500) No number can be identified with any person. YOUR VOTE IS SECRET.
In proceedings in the Federal Court seeking an inquiry into the election under Part IX of the Conciliation and Arbitration Act irregularities were alleged including the claim:
The election was not by secret ballot within the meaning of the Act and is prescribed by ss.133 and 133AA of the Act.
In dealing with the form of the endorsement on the ballot papers, Evatt J said at p 398:
It will be seen that such endorsement does not include the words "all ballot-papers have been so shuffled that identification of any number with any person is impossible" as was required by the certified rule. This is clearly a breach of the rules. The omission of the words set out above is, in my view, of vital importance. Evidence has been given that a relatively small number of members who were entitled to vote in the subject election decided not to vote as a result of the endorsement on the ballot-papers as they believed that their vote would not be secret. It is clear, in my view, that other members who were entitled to vote may have been inhibited from exercising their votes because of the particular endorsement on the ballot-paper. Further, the evidence discloses that some ten ballot-papers with votes cast in accordance with the voting instructions set out on the ballot-paper but with the said endorsement at the top of the ballot-paper heavily crossed out or cut off had been received by the returning officer. He had treated such votes as informal.
And at p 403:
I am firmly of the view that the endorsement on the ballot-paper in this election was a clear breach of the certified rules of the branch of the organisation which could have prevented or hindered the full and free recording of votes of persons entitled to record their votes (within the meaning of ("irregularity" in) s.4 of the Conciliation and Arbitration Act 1904). The court understands that the practice of numbering ballot-papers as was done in this case was a practice which prevailed many years ago in the rules of several organisations. The court understands that the rationale for such a rule was to prevent forgeries. Prima facie, in my view, the numbering of ballot-papers in any fashion would result in a ballot being not a secret ballot.
His Honour then quoted in part the passages from the judgments of Spicer C.J. and Dunphy J from Cameron v Australian Workers Union referred to above, and at p 404 continued:
I respectfully agree with these observations. The practice of numbering ballot-papers as was done in this case should cease. In my view, any such numbering of ballot-papers would mean that any ballot required in a particular election would not be a "secret ballot" within the meaning of s.133(1)(d) or an election by "secret postal ballot" within the meaning of s.133AA of the Federal Act. It is not to the point, as was the case in the subject election, that no record was kept by the returning officer or those assisting him of the number on the ballot-paper sent to a particular voter or that the ballot-papers had in fact been shuffled before being placed in envelopes for forwarding to members.
iii) Federated Liquor and Allied Industries Employees Union of
Australia, New South Wales Branch; ex parte Pullen
(1990) 34 IR 264.
In an election inquiry conducted pursuant to section of the Industrial Relations Act 1988 (Cth) the question arose as to whether the secrecy of the ballot had been compromised. The particular facts so far as relevant appear from the following passage from the judgment of Gray J at p 273:
Although not alleged initially by the applicant as an irregularity, the question whether the secrecy of the ballot was compromised arose in the course of the inquiry. It arose because of the spaces for the filling in of names and signatures on the backs of the envelopes into which completed ballot papers were required to be placed before they were posted to the Australian Electoral Commission and the serial numbering of those envelopes. The possibility existed that whoever opened the envelope would be able to determine how a particular voter had voted, either by reference to the name, or by using the number on the envelope to ascertain the identify of the voter from the roll of voters. It is perfectly clear on the evidence before me that no breach of secrecy occurred in fact. The ballot paper envelopes were slit open by means of a machine, and the envelopes and the ballot papers were separated immediately in such a way that no employee of the Australian Electoral Commission, and no scrutineer for any of the candidates, could have ascertained the identity of anyone who had completed a particular ballot paper. Nonetheless, in the circumstances, there must arise a doubt whether potential voters might have been deterred from voting because of the possibility that their identities could be ascertained.
After referring to a number of English authorities and to Hibbert v Federated Clerks Union and Cameron v Australian Workers Union, His Honour made these observations at p 274:
Those cases concern what appears on the ballot paper, or in Cameron's case, what is attached to it. The principle to be derived from them, however, is that there should be no means of ascertaining the way in which a vote may be case, and that the voter should be aware of this. In the present case, such means of ascertainment existed, and the ballot paper did not even contain advice to the voter that counting would be conducted in such a way that the ballot paper and the envelope would be separated without anyone having any opportunity to ascertain the identity of any voter. The course of requesting identification on the ballot paper envelope was taken in the subject elections because of the experience in the Queensland branch of the union. It was no doubt hoped to prevent impersonation of voters and multiple voting by individuals. These are laudable aims, but r.5(1)(b) of the branch rules, in conformity with s.197(1)(e) of the Act, requires a secret ballot. In my view, the ballot was not secret and an irregularity thereby happened in relation to the subject elections. The problem could have been overcome by transferring the requirement for a name and signature, and the serial number, to the outer envelope, in which the ballot paper envelope was to be enclosed by the voter for postage, and by an assurance on the ballot paper itself that the process of counting would eliminate any possibility of ascertainment of a voter's identity. There is no evidence that any voter refrained from voting because of fear of lack of secrecy.
CONCLUSIONS
The term "secret ballot" is not a term of art. Neither the dictionary definitions nor the Minister's second reading speech add any light on the meaning of a term which is in common usage in Australia. However, it would be contrary to common sense and the general understanding of the Australian community to regard the system of voting enshrined in the Commonwealth Electoral Act as other than voting by secret ballot. And when an act of the Australian Parliament requires that an election for a statutory authority created by it be conducted by a secret ballot in accordance with rules which have regard to the desirability of providing for elections to be conducted in a manner similar to the manner in which elections for the Parliament are conducted, the necessary inference to be drawn is that Parliament at least regards the manner of voting at parliamentary elections to be by secret ballot.
The three cases referred to above are not easily reconciled. In Cameron's case there was no doubt that the secrecy of the ballot was compromised by the attaching to the ballot papers of slips bearing numbers from which the identity of the voters could be ascertained. Nevertheless, as the numbering of the voting slips was not a requirement of the rules, the Court took the view that the rules made adequate provision for secret ballots.
In Hibbert's case, the endorsement on the ballot paper was not in accordance with the rules and this amounted to an irregularity. The Court was of the view that the practice of numbering the ballot papers would give rise to the perception that the ballot was not secret although in practice no record was kept which would enable the number of a ballot paper to be matched against any individual voter. In this case the Court was concerned not with whether the rules made provision for a secret ballot but whether there was any irregularity in the conduct of the election.
In Pullen's case the voting procedure was for practical purposes the same as is provided for under the Regional Council Election Rules. Gray J concluded that the ballot was not secret and that there had therefore been an irregularity in the election. In one respect decisions relating to rules of registered organisations under the Industrial Relations Act and its predecessor can be treated as special cases in that section 197 of that Act (section 133 of the former Act) requires that the rules of an organisation relating to elections be such as to ensure, as far as practicable, that no irregularities can occur in relation to an election.
Without in any way wishing to be seen to cast doubt on Gray J's conclusion in Pullen's case there are, in my opinion, factors in the present circumstances which distinguish this case from that case. If nothing else is certain, the term 'secret ballot' is not a term of art. Whenever it is used, it must be considered in its context. It would be fair to say, without going into specific details, that elections in industrial unions in Australia have not always been free of electoral malpractice and that the requirement for voting by secret ballot in union elections, first introduced in the Conciliation and Arbitration Act in 1951 was designed to meet the particular needs of the system of industrial regulation. It is therefore entirely appropriate that the view adopted by Gray J in Pullen's case should apply in the context of the Industrial Relations Act.
But ATSIC is quite another case. In the first place, as a matter of policy, and for very sound reasons, the Parliament elected not to make provision for a separate roll of Aboriginal voters. To do so would certainly have been abhorrent to Aboriginal Australians and would have been contrary to the general stance taken by Australian Governments to countries in which the law distinguishes between its citizens on the basis of race. Having made that policy decision a system had to be devised to ensure that the eligibility of voters could be checked at the point of casting their vote, or at some later time if there was a dispute. But this had to be done within the framework of an act which specifically referred the rule making authority to the desirability of providing for elections to be conducted in a manner similar to the manner in which elections for the Parliament are conducted. Given that elections for the Parliament are conducted on the basis of a fixed roll of electors, it is obvious that the scheme to be adopted would have to be significantly different from the normal Parliamentary election process. Nevertheless, it was appropriate that those parts of the Parliamentary scheme which were appropriate to the special circumstances of Regional Council elections should be adopted. And this is what occurred. It is also of some significance in construing what Parliament may be thought to have understood by the requirement that voting for regional council elections be by secret ballot, that the system of voting proposed was outlined in detail in the Minister's second reading speech and that the system actually adopted conformed with that outline.
In addition to what is said above, it is appropriate to read the whole of section 113 to discern its full meaning and effect. Whilst much has been made of the requirement that the rules made by the Minister must be 'not inconsistent with (the) Act', and in that context the provisions of section 109 have been highlighted, the other provisions of the Act, including in particular subsections (6) and (7) of section 113 must be taken into account in the rule making process. The rules as they presently stand appear to have been made with regard to such special circumstances as the likelihood that a significant proportion of Aboriginal and Torres Strait Islander voters may not be fluent in the English language, that their eligibility to vote may not necessarily be immediately obvious to the electoral officials and that the customs and lifestyle of many voters may be such as to give rise to them not being readily identified as persons on the electoral roll both in respect of name and place of residence. Furthermore, any more elaborate system of voting designed to more effectively guarantee the secrecy of the ballot would be likely to involve additional cost.
In my opinion the Regional Council Election Rules make provision for voting at Regional Council elections by secret ballot and in this respect the rules are not inconsistent with the Act. There is, therefore, no basis upon which the applicants are entitled to the relief sought.
The application will be dismissed with costs.
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