Caltabiano v Electoral Commission of Queensland (No 4)
[2009] QSC 294
•17/09/2009
SUPREME COURT OF QUEENSLAND
CITATION: Caltabiano v Electoral Commission of Queensland & Anor
(No 4) [2009] QSC 294PARTIES: ANDREA MICHELE CALTABIANO
(applicant)v ELECTORAL COMMISSION OF QUEENSLAND
(first respondent)STEVEN ANDREW KILBURN
(second respondent)FILE NO/S: BS 3921 of 2009 DIVISION: Trial PROCEEDING: Application ORIGINATING
COURT:Court of Disputed Returns at Brisbane DELIVERED ON: 17 September 2009 DELIVERED AT: Brisbane HEARING DATE: 13-14, 17-18 August 2009 JUDGE: Atkinson J ORDER: The application be dismissed. CATCHWORDS: CONSTITUTIONAL LAW – THE NON-JUDICIAL ORGANS OF GOVERNMENT – THE LEGISLATURE – ELECTIONS AND RELATED MATTERS – DISPUTED ELECTIONS – DISPUTED ELECTION COURTS OR TRIBUNALS – PRINCIPLES UPON WHICH COURT OR TRIBUNAL ACTS – where s 92 of the Electoral Act 1992 (Qld) (“the Act”) provides that the ECQ has “the continuing function of making appropriate administrative arrangements for the conduct of elections” which “includes doing the things required by the remainder of this division” – whether the ECQ has a statutory obligation under s 92 to inform electors who fail to correctly fill in applications for postal votes of their errors and give them an opportunity to correct them
CONSTITUTIONAL LAW – THE NON-JUDICIAL ORGANS OF GOVERNMENT – THE LEGISLATURE – ELECTIONS AND RELATED MATTERS – DISPUTED ELECTIONS – DISPUTED ELECTION COURTS OR TRIBUNALS – PRINCIPLES UPON WHICH COURT OR TRIBUNAL ACTS – where the Act allows for an elector to request a postal vote upon satisfying certain criteria – where, if the request is received by 6 pm on the Thursday before polling day the ECQ or the returning officer must “post, deliver or send” voting material to the postal voter – whether the ECQ is under an obligation to take greater lengths to post, deliver or send voting material in proportion to the proximity of the 6 pm deadline or whether it suffices to post, even where the voting material will not reach the elector in time
CONSTITUTIONAL LAW – THE NON-JUDICIAL ORGANS OF GOVERNMENT – THE LEGISLATURE – ELECTIONS AND RELATED MATTERS – DISPUTED ELECTIONS – DISPUTED ELECTION COURTS OR TRIBUNALS – PRINCIPLES UPON WHICH COURT OR TRIBUNAL ACTS – where s 136 of the Act confers power on the Court of Disputed Returns to “make any order or exercise any power in relation to the application that the court considers just and equitable” – whether the power is unlimited or constrained by a requirement that facts demonstrate that the election was rendered invalid by virtue of a contravention of a statutory requirement of the Act
CONSTITUTIONAL LAW – THE NON-JUDICIAL ORGANS OF GOVERNMENT – THE LEGISLATURE – ELECTIONS AND RELATED MATTERS – DISPUTED ELECTIONS – DISPUTED ELECTION COURTS OR TRIBUNALS – PRINCIPLES UPON WHICH COURT OR TRIBUNAL ACTS – where the Act is silent on the question of onus of proof – whether, and if so on which party, the onus of proof lies
CONSTITUTIONAL LAW – THE NON-JUDICIAL ORGANS OF GOVERNMENT – THE LEGISLATURE – ELECTIONS AND RELATED MATTERS – DISPUTED ELECTIONS – DISPUTED ELECTION COURTS OR TRIBUNALS – PRINCIPLES UPON WHICH COURT OR TRIBUNAL ACTS – where the Powers of Attorney Act 1998 (Qld) provides that an attorney may “execute an instrument with the attorney’s own signature” and “do any other thing in the attorney’s own name” but “in a way showing that the attorney executes it as attorney for the principal” – where s 179 of the Act provides for how things are to be signed under the Act – whether an attorney may sign the declaration envelope for a person voting other than by ordinary vote – whether an attorney may sign a request for a postal vote under the Powers of Attorney Act 1998 (Qld)
CONSTITUTIONAL LAW – THE NON-JUDICIAL ORGANS OF GOVERNMENT – THE LEGISLATURE – ELECTIONS AND RELATED MATTERS – DISPUTED ELECTIONS – DISPUTED ELECTION COURTS OR TRIBUNALS – PRINCIPLES UPON WHICH COURT OR TRIBUNAL ACTS – where s 138(2)(b) of the Act states that the Court of Disputed Returns “must not inquire whether the electoral roll, or any copy used at the election, was in accordance with this Act” – where s 101(1)(c) of the Act states that “persons whose names are not on the electoral roll … because of official error” are entitled to vote – whether, and if so to what extent, the Court of Disputed Returns may inquire into whether an official error has been made that resulted in a person not being on the electoral roll
CONSTITUTIONAL LAW – THE NON-JUDICIAL ORGANS OF GOVERNMENT – THE LEGISLATURE – ELECTIONS AND RELATED MATTERS – BALLOT PAPERS – MARKING OF BALLOT PAPERS – where s 114(4) of the Act provides that a ballot paper is a formal ballot paper if it “has effect to indicate a vote” – where the ballot paper is formal where the elector writes on the ballot paper the number 1, a tick or a cross in the square opposite the name of the candidate to indicate the elector’s preference for that candidate or by writing the number 1, a tick or a cross in the square opposite the name of the candidate to indicate the elector’s first preference for that candidate and 2, 3 and so on in other squares to indicate the elector’s order of preference – where the ballot paper is formal where it contains “other writing or marks that indicate the voter’s intended preference or intended order of preferences” – where the ballot paper “must not contain any writing or mark (other than as authorised by th[e] Act) by which the elector can be identified” – whether a particular ballot paper is formal or informal under the Act
CONSTITUTIONAL LAW – THE NON-JUDICIAL ORGANS OF GOVERNMENT – THE LEGISLATURE – ELECTIONS AND RELATED MATTERS – PERSONATION – where an issuing officer has marked off an elector’s name twice on the electoral roll by mistake – where ECQ staff have inadvertently allowed an elector to vote once by electoral visitor vote and once by postal vote – whether either of these cases constitutes double voting or personation in contravention of s 101(2)(a) of the Act
Electoral Act 1992 (Qld), s 3, s 21, s 23, s 30, s 32, s 34, s 58,
s 59, s 61, s 62, s 64, s 65, s 67, s 78, s 80, s 84, s 88, s 91,
s 92, s 93, s 94, s 97, s 98, s 99, s 101, s 102, s 103, s 104,
s 105, s 106, s 107, s 108, s 109, s 110, s 111, s 112, s 113,
s 114, s 115, s 116, s 119, s 120, s 121, s 125, s 127, s 128,
s 130, s 134, s 136, s 137, s 138, s 139, s 164, s 178, s 179
Elections Acts 1915-1948 (Qld), s 4, s 35, s 35A, s 101
Powers of Attorney Act 1998 (Qld), s 69, sch 3
Commonwealth Electoral Act 1918 (Cth), s 98, s 101, s 116,
s 118, s 184, s 184A, s 268, s 361
Parliamentary Electorates and Elections Act 1912-1949
(NSW), s 20, s 163
Blundell v Vardon (1907) 4 CLR 1463, followed
Bridge v Bowen (1916) 21 CLR 582, cited
Buck v Bavone (1976) 135 CLR 110, cited
Carroll v Electoral Commission of Queensland (No 1) [2001]
1 Qd R 117, followed
Cirencester Case (1893) 4 O’M & H 194
Featherston v Tully (2002) 83 SASR 302, cited
In re Nash Election Petition [1952] St R Qd 53
Kane v McClelland (1962) 111 CLR 518, followed
Kean v Kerby (1920) 27 CLR 449, followed
Kennedy v Palmer (1907) 4 CLR 1481, considered
Martin v Osborne (1936) 55 CLR 367, cited
Minister for Immigration and Ethnic Affairs v Wu Shan Liang
(1996) 185 CLR 259, cited
Muldowney v Australian Electoral Commission (1993) 178
CLR 34, followed
Owen v Dunn [1962] WAR 175, cited
Perkins v Cusack (1929) 43 CLR 70, cited
Re Berrill’s Petition (1976) 134 CLR 470, followed
Re Brennan; ex parte Muldowney (1993) 67 ALJR 837,
followedRe Darlinghurst Petition (1951) SR (NSW) 204
Re Maryborough Election Petition; Nightingale v Alison
(1984) 2 Qd R 214, considered
Shaw v Wolf (1998) 83 FCR 113, followed
Snowdon v Dondas (1996) 188 CLR 48, considered
Tanti v Davies (No 3) [1996] 2 Qd R 602, considered
Langer v The Commonwealth (1996) 186 CLR 302, followed
Mitchell v Bailey (No 2) (2008) 169 FCR 529, followed
Blundell v Vardon (1907) 4 CLR 1463, followedWoodward v Sarsons (1875) LR 10 CP 733, distinguished
COUNSEL: P J Dunning SC, with P Baston, for the applicant
M D Hinson SC for the first respondent
D C Rangiah SC for the second respondentSOLICITORS: RiverLegal for the applicant
Crown Law for the first respondent
Carne Reidy Herd for the second respondent
TABLE OF CONTENTS
Introduction [1]-[2] Grounds for the application [3]-[17] Statutory and factual context of the 2009 State election [18]-[24] The electoral roll [25]-[34] Candidates for election in Chatsworth [35]-[40] Administrative arrangements for elections [41]-[45] Who may vote [46]-[47] How voting takes place [48]-[57] Ordinary voting [58]-[60] Types of declaration voting [61]-[68] Ordinary postal voters [63] Special postal voters [64]-[67] Electoral visitor voters [68] Casting a declaration vote [69]-[146] 1. Drive-in voting [70] 2. Absent voting at a polling booth outside electorate [71]-[72] 3. Pre-poll voting [73]-[74] 4. Electoral visitor voting [75] 4. Postal voting [76]-[146]
Requesting a postal vote [78]-[82] The ECQ’s obligation to “post, deliver or send” [83]-[96] Processing of postal vote applications [97]-[134] Mr Bibb’s examination of postal vote applications [135]-[146]
Formal and informal voting [147]-[150] Counting of votes [151]-[167] Miscellaneous provisions [168]-[178] The Court of Disputed Returns [179]-[187] Onus of proof [188]-[194] Restrictions on the power of the Court [195]-[232] General approach [233] Grounds 1 and 2: allegation of double voting [234]-[283] Summary of grounds 1 and 2 [284]-[286] Ground 3: declaration votes wrongly counted [287]-[296] Summary of ground 3 [295]-[296] Ground 4(a): non-receipt of declaration envelopes and ballot
papers before polling day [297]-[468] Summary of ground 4(a) [467]-[468] Ground 4(b): persons not on the roll [469]-[496] Summary of ground 4(b) [496] Ground 4(c): special postal voter [497]-[512] Summary of ground 4(c) [512] Ground 4(d): postal votes not counted [513]-[610] Summary of ground 4(d) [610] Ground 4(e): applications not in accordance with the Act [611]-[632] Summary of ground 4(e) [631]-[632] Ground 4(f): electors not offered a declaration vote because
not on the roll [633]-[640] Summary of ground 4(f) [640] Ground 4(g): rejected postal votes [641]-[670] Summary of ground 4(g) [670] Ground 4(h): persons who were entitled to vote were prevented from voting because of advice given by the ECQ and/or failure to advise of the way those persons could vote
[671]-[686]
Summary of ground 4(h) [686] Ground 5 [687]-[777] Whether a ballot paper is formal or informal [688]-[709] The ballot papers in question [710]-[715] Category 1: identifying writing or marks [716]-[734] Category 2: overwriting [735]-[748] Category 3: ballot papers containing marks other than numbers, ticks or crosses [749]-[768] Category 4: ballot papers with marks or numbers repeated [769]-[774] Category 5: ballot papers marked outside the squares [775] Summary of ground 5 [776]-[777] Recommendations for law reform [778]-[787] Conclusion [788]-[791] Introduction
[1] The applicant, Andrea Michele Caltabiano, was an unsuccessful candidate for the electoral district of Chatsworth in the 2009 Queensland State election. She brought an application in the Court of Disputed Returns against the first respondent, the Electoral Commission of Queensland (“ECQ”), which conducted the elections, and the second respondent, Steven Andrew Kilburn, the successful candidate for the electoral district of Chatsworth. After the counting of the ballots, Mr Kilburn was the successful candidate with 13,561 votes. Ms Caltabiano had a total of 13,487 votes, so the winning margin was 74 votes.
[2] Ms Caltabiano sought orders that Mr Kilburn be taken not to have been elected, that she be taken to have been elected, and, in the alternative, that a new election be held for the electoral district of Chatsworth.
Grounds for the application
[3] There were five particularised grounds set out in the amended originating application. Ground 4 was further divided into a number of subgrounds. Each ground and subground will be dealt with in turn in these reasons for decision.
[4] The first and second grounds alleged that there were instances of double voting
or personation.[1]
[1] The Oxford English Dictionary defines “personate” as “to assume the person or character of (another person), esp. for fraudulent purposes; to pretend to be; to act the part of”.
[5] Ground 1 was:
That certain electors in the electoral district of Chatsworth voted or may have voted more than once in contravention of s 101(2)(a) of the Electoral Act 1992 (Qld) (“the Act”).
[6] Ground 2 was:
That certain persons obtained voting ballot papers for the electoral district of Chatsworth and voted in the name of other persons who were on the roll of the electorate of Chatsworth with the effect that more than one vote was recorded at the election for those electors in contravention of s 101(2)(a) of the Act.
[7] Ground 3 alleged that certain postal votes were counted which should not have been counted. Ground 3 was:
That the ballot papers of certain persons who made declaration votes, in the form of ordinary postal votes, and failed to comply with the requirements of s 107(d) and s 110 and in particular s 110(5)(a) of the Act were counted in contravention of s 115 and s 116(1) and (2) of the Act.
[8] Ground 4 alleged that some electors were denied declaration votes when they should have been able to vote in that way.
[9] Ground 4(a) alleged that certain electors who requested postal votes did not receive ballot papers at all or in time to vote. Ground 4(a) was:
Persons who had made a valid application for a declaration vote, in the form of an ordinary postal vote, pursuant to s 105(1) and (2) and 110(1) and (1A) of the Act, and whose applications were received not later than 6 pm on the Thursday before polling day, did not receive, or alternatively did not receive in time to vote before the end of voting hours on polling day, a ballot paper and declaration envelope, because the first respondent failed to post, deliver or send, or alternatively deliver or send, the ballot paper and declaration envelope to those persons, in contravention of s 110(2) of the Act.
Ground 4(b) alleged that certain declaration votes made by persons who were not on the roll should have been counted but were not. Ground 4(b) was:
Certain persons who were entitled to make a declaration vote pursuant to s 106(c) and 107(b) and s 108 of the Act cast such a vote but it was not counted in contravention of s 119(1), (3)(c), (4)(c) and (d) of the Act.
Ground 4(c) alleged that a special postal voter was denied a vote. Ground 4(c) was:
Certain persons who were entitled to make a declaration vote, as a special postal voter, pursuant to s 105(1)(b) and (3)(a)(iii) of the Act, cast such a vote but it was not counted in contravention of s 119(1), (3)(c) and (4)(c) and (d) of the Act.
Ground 4(d) alleged that certain postal votes which should have been counted but were not. Ground 4(d) was:
In respect of certain persons who had made a valid application for a declaration vote, in the form of an ordinary postal vote, pursuant to s 105(1) and (2) and 110(1) and (1A) of the Act, and did receive a ballot paper and declaration envelope, and upon receiving them complied with the requirements of s 110(5) of the Act, the first respondent failed to ensure that members of the first respondent’s staff examined the declaration envelopes to determine whether the ballot papers in them were to be accepted for counting, in contravention of s 115 and s 116(1) of the Act, and identify the declaration envelopes and keep them separate in relation to the electoral district of Chatsworth, in contravention of s 119(1) and (2) of the Act, with effect that such ballot papers were not counted in contravention of s 119(1), (3)(c), (4)(c) and (d) of the Act.
Ground 4(e) alleged that the ECQ should have informed electors who submitted invalid requests for postal votes of the errors so that they could submit valid requests. Ground 4(e) was:
The first respondent failed to inform certain persons who made application for a declaration vote which contained an error in the completion of the application that his or her application contained such error, so as to give that person an opportunity to cast a vote for the electoral district of Chatsworth, in contravention of s 92 of the Act.
Ground 4(f) alleged that certain electors who were not on the roll or were told they were not on the roll were not offered declaration votes. Ground 4(f) was:
Certain persons who were entitled to make a declaration vote pursuant to s 106(c) and 107(b) and s 108 of the Act were refused or not offered such a declaration vote, in contravention of s 108(2) and s 92 of the Act.
Ground 4(g) alleged that certain postal ballots that should have been counted were rejected on the ground that the signature on the declaration envelope did not match the signature on the request for a postal vote. Ground 4(g) was:
Certain persons who had made application for a declaration vote, in the form of an ordinary postal vote, pursuant to s 105(1) and (2) and 110(1) and (1A) of the Act, who did receive a ballot paper and declaration envelope, and upon receiving it complied with the requirements of s 110(5) of the Act, returned the declaration envelope and ballot paper, the ballot papers were not accepted for counting, in contravention of s 116(2) of the Act, and the ballot papers were not counted in contravention of s 119(1), (3)(c), (4)(c) and (d) of the Act.
Ground 4(h) alleged that persons who were entitled to vote were prevented from voting because of advice given by the ECQ and/or failure to advise the way those persons could vote. Ground 4(h) was:
Certain persons who were entitled to vote in the electoral district of Chatsworth were prevented from voting because of advice given by staff of the first respondent and/or the failure of those staff to advise of the ways in which those persons could vote as the election, in contravention of s 92 of the Act.
Ground 5 alleged that certain ballot papers were declared informal that should have been counted as formal votes for Ms Caltabiano and that certain ballot papers counted as formal votes for Mr Kilburn should have been declared informal. Ground 5 was:
Certain votes which were formal votes for the applicant were not counted in her favour and certain votes which were informal votes were counted in favour of the second respondent Mr Kilburn in contravention of s 115 and s 119(1), (3)(c) and (4)(c) of the Act.
Statutory and factual context of the 2009 State election
In order to understand the application as particularised it is necessary to set out the statutory and factual context of the 2009 State election.
Parliamentary elections in Queensland are governed by the Act. A general election for members of the Legislative Assembly in Queensland was held after the issue of a writ for the election by the Governor on 23 February 2009 under s 78(1)(a) of the Act. The election period is the period beginning on the day after the writ for the election is issued and ending at 6 pm on the polling day for the election (s 3). Polling day for the 2009 State election was 21 March 2009. The election period was therefore 24 February to 21 March 2009.
Once a writ has been issued by the Governor the ECQ must, pursuant to s 77 of the Act, conduct the election of members of the Legislative Assembly in accordance with the writ and the provisions of pt 6 of the Act. The writ issued by the Governor must set out:
• under s 80(1)(b) of the Act, the cut-off day for the electoral roll for the election, which must not be less than five days, or more than seven days, after the issue of the writ.[2] The writ set out that the cut-off day for the electoral roll would be 5 pm on 28 February 2009. Thereafter the ECQ must prepare the electoral roll for the election (s 59(1)(b)) and give a certified copy of the roll as at the cut-off day to each candidate for election for an electoral district who requests a copy (s 61(2)). • under s 80(1)(c) of the Act, the cut-off day for the nomination of candidates for the election, which must be not less than eight days, nor more than 18 days, after the issue of the writ. The date set out in the writ for the close of nominations was 3 March 2009 at 12 pm. • under s 80(1)(d) of the Act, the polling day, which must be a Saturday not less than 26 days, nor more than 56 days, after the issue of the writ. The polling day set out in the writ was Saturday 21 March 2009. The hours for voting on polling day were from 8 am to 6 pm. • under s 80(1)(e) of the Act, the day for the return of the writ.
The day on which the writ was returned was 7 April 2009.[2] Subsection 80(2) of the Act provides that for the purpose of determining a cut-off day, the polling day or the day for return of the writ under sub-s 80(1), each of the relevant days are included in the specified number of days.
There are 89 electoral districts for Queensland (s 34). Each electoral district has a returning officer appointed by the Governor in Council under s 32 of the Act. The Act provides for an Electoral Commissioner (“the Commissioner”) (s 21) who is appointed by the Governor in Council (s 23), permanent staff employed under the Public Service Act 1996 (Qld) (s 30(1) and (2)) and temporary staff to be employed in connection with the conduct of a particular election (s 30(4), s 92(3)).
This dispute concerns the electoral district of Chatsworth. The returning officer for that electoral district is Norman Ludwig, who gave evidence in these proceedings. The Commissioner is David Kerslake. The Commissioner was assisted in the conduct of the 2009 State election by Gary Wiltshire, the director of election operations with the ECQ; Donald Schultz, the acting director, enrolment and community awareness for the ECQ; other permanent staff; as well as many temporary staff employed for the conduct of the 2009 State election.
An issuing officer is defined in s 3 of the Act to mean a member of the ECQ’s staff who is responsible for issuing ballot papers or declaration envelopes under the Act to electors at an election.
At each election the ECQ establishes a call centre to handle elector enquiries. For the 2009 State election, the call centre received over 78,000 enquiries. The centre was operated by Smart Services Queensland, with training for call centre staff provided by experienced ECQ officers. Each call centre operator was provided with a menu of questions electors were likely to ask and scripted answers to which they could refer. Call centre staff also had access to the ECQ website which contained the location of pre-poll centres (including overseas locations). ECQ staff were available to deal with any more complex questions which might be referred to them by call centre staff.
The electoral roll
Pursuant to s 58 of the Act, the ECQ is required to keep an electoral roll for each electoral district which sets out, in relation to each person entitled to vote in that district, the person’s surname and given names; address; sex, occupation and date of birth; and an identifying number. Section 62 provides for a joint electoral roll for Commonwealth and State elections. The electoral roll for all elections in Queensland (State, Commonwealth and local government) is maintained by the Australian Electoral Commission (AEC) under a joint roll arrangement with the Commonwealth.
Section 64 of the Act deals with entitlement to enrolment. Essentially, entitlement to enrolment is governed by the Commonwealth Electoral Act 1918 (Cth) (“the Cth Act”). Section 64 provides that a person is entitled to be enrolled if the person is entitled to be enrolled under the Cth Act for the purposes of that Act in its application in relation to an election within the meaning of that Act. The elector must also (subject to certain exceptions not here relevant) live in the electoral district and have lived in it for the last month. Mr Kerslake gave evidence that under s 67(3) of the Act, if an objection is received to the enrolment of a person, every effort is made to contact the elector to give that person a reasonable opportunity to respond, for instance by accessing various national data sources in an effort to ascertain the elector’s current address.
Objections to enrolment are dealt with under pt 9 of the Cth Act. Mr Schultz gave evidence that when the AEC receives information that an elector may no longer reside at the enrolled address, the AEC commences an objection process to remove the elector’s name from the roll. He said that the AEC carries out reviews by doorknocking from time to time in certain areas and may also be alerted by “return to sender” mail.
The objection process involves the AEC’s issuing a letter to the elector at the enrolled address, pursuant to s 116(2)(c)(iii) of the Cth Act, seeking information that the elector still resides at the address or is no longer there. A response is required within a certain period of time under s 118(1) of the Cth Act. If there is no response to the first letter, a second letter is sent stating that the elector has been removed from the roll unless the AEC is advised otherwise under s 118(6) and (7) of the Cth Act. It cannot be an official error under s 101(1) of the Act if the AEC removes a person’s name from the roll following the procedure set out in the Cth Act unless it has been given notice by the elector of a claim for a transfer of enrolment because of a change of address (s 65(3) of the Act; s 101(2) of the Cth Act).
Under s 65(5) of the Act, the roll may not be amended between the end of the cut-off day and the end of the polling day except to correct a mistake or the wrongful removal of a person from the electoral roll. In the 2009 State election, the dates during which the roll could not be amended were from 1 March to 21 March 2009 inclusive.
At the close of the roll for the 2009 State election, there were 2,660,940 electors on the State electoral roll, including 31,053 for the electoral district of Chatsworth.
Once the electoral roll is closed, certified rolls are allocated to polling booths and for various types of declaration votes. The following table sets out the names of polling booths used in the electoral district of Chatsworth during the 2009 State election, the numbers allocated to the certified rolls used in each polling booth, and the numbers allocated to the certified lists used for each type of declaration voting. The rolls with a number from 150 upwards were kept electronically.
When an elector votes, the elector’s name is marked off on a copy of the certified roll. Each certified roll is amalgamated into the consolidated roll. Each voter’s name is annotated on the consolidated roll to show on which copy of the certified roll the voter’s name was marked off. It is then possible to tell where, or the means by which, the ballot paper was allocated.
Chatsworth Certified Roll Allocation
ECQ Code Polling Booth Name/Voter Category Roll numbers
1 BAYSIDE 1-5 2 BELMONT 6-18 3 CAMP HILL 19-21 4 CARINA 22-27 5 CARINA CENTRAL 28-29 6 CARINA HEIGHTS 30-34 7 GUMDALE 35-42 8 MAYFIELD 43-45 9 TINGALPA 46-50 10 TINGALPA SOUTH 51-56 11 WHITES HILL 57-58 EV ELECTORAL VISITS 120-121 DI DECLARED INSTITUTIONS 130-131 PV POSTAL VOTERS 150 PP PRE-POLL VOTERS 160 AB ABSENT VOTERS 161 DA DI ABSENT VOTERS 162 PA PRE-POLL ABSENT VOTERS 163
ECQ Code Polling Booth Name/Voter Category Roll numbers
RA REMOTE AREA ABSENT VOTERS 164 UN UNENROLLED VOTERS 165 BC BRISBANE 190 EX EXCUSES 170 SP SPARES 180-183
It is necessary to note that the Court must not inquire whether the electoral roll, or any copy used at the election, was in accordance with the Act (s 138(2)(b)).
Inclusion of a person’s name on the roll gives that person an entitlement to vote[3]
[3] Muldowney v Australian Electoral Commission (1993) 178 CLR 34 at 40 per Brennan ACJ.
and the Court may not inquire whether the person was not so entitled.
I shall deal with persons whose names are not on the roll but who may nevertheless be entitled to vote later in these reasons.
Candidates for election in Chatsworth
Part 6 div 2 of the Act deals with the nomination of candidates for elections. The ECQ must advise the returning officer for each electoral district of the names of all persons nominated for election for the electoral district (s 88(1)). The returning officer must then arrange for a notice stating the names of those persons to be displayed in a conspicuous place at the returning officer’s office and published (s 88(2)). Once the names have been displayed, the persons become candidates for the election for the electoral district (s 3, s 88(3)).
As soon as practicable after the ECQ advises the returning officer of the names of the candidates for an election for the electoral district, the ECQ must enter in a register of candidates the information required under s 84(3) of the Act, including the candidate’s name, address and occupation; a signed statement by the candidate consenting to the nomination; and, if the person has been nominated by the registered officer of a registered political party that has endorsed the candidate for the election, a signed statement by the party’s registered officer that the registered political party has endorsed the candidate.
The order of the candidates’ names on the ballot paper is chosen in accordance with s 98 of the Act. The candidates for Chatsworth in the 2009 State election were, in the order in which they appeared on the ballot paper:
• Kilburn, Steven (Australian Labor Party); • Cooney, Jason (The Greens); • Furze, Jason B (DS4SEQ); • Zegenhagen, Tony; and • Caltabiano, Andrea (LNP).
The words or abbreviation in brackets after the candidate’s name denote the political party by which that candidate was endorsed (s 97(2)(g)). If the political party has sought to be described by an abbreviation on the ballot paper, that abbreviation rather than the full name of the political party is used.
Once the nominations have closed and the order of the candidates on the ballot paper has been chosen, the ballot papers are printed. They were printed by the government printer and arrived in Brisbane on the morning of Thursday 5 March. Returning officers did not therefore have ballot papers to send out before this date unless they printed them themselves.
Section 91 of the Act then provides that an election must be held in accordance with the writ and the provisions of pt 6.
Administrative arrangements for elections
Division 3 of pt 6 deals with arrangements for elections. Section 92(1) provides that the ECQ has the continuing function of making appropriate administrative arrangements for the conduct of elections. This function includes the doing of those things required in the remainder of div 3 of pt 6, such as setting up and operating polling booths (s 93) including ordinary polling booths (s 94(2)) and mobile polling booths (s 94(3)). The ECQ set up 11 polling booths within the electorate of Chatsworth as well as the Brisbane polling booth in the Primary Industries Building at 80 Ann Street.
The ECQ may declare an institution which contains patients, residents or inmates a mobile polling booth to enable those patients, residents or inmates to vote at the institution at times (determined by the ECQ) during the period beginning 11 days before polling day and ending at 6 pm on polling day. In this case, that was from 10 March 2009 to 6 pm on 21 March 2009. However, s 94(9) of the Act provides that the result of an election is not invalidated only because an issuing officer failed to visit a mobile polling booth as arranged.
The ECQ must ensure that there are a sufficient number of ballot papers and certified copies of the electoral roll for each electoral district as at the cut-off day for electoral rolls (s 97(1)). Section 97 of the Act also sets out the form of the ballot paper. Section 97(3) provides that the ballot papers must contain the following sentences –
“• Place the number one (‘1’) in the square opposite the
candidate of your choice.• You may if you wish indicate your preference for additional candidates by numbering the other squares in your preferred order.”
During the 2009 election period, the ECQ sent all electors a letter telling them the polling day and hours, their roll number and enrolled address, the electoral district in which they were enrolled, the location of polling booths in that district and the options available if they were unable to attend a polling booth on polling day. The ECQ’s website also assisted electors by outlining the voting options available to them.
The applicant submitted that s 92 of the Act imposes an obligation on the ECQ to inform electors who fail to fill in applications for postal votes correctly of their errors and give them an opportunity to correct them. The ECQ submitted that it does not have an obligation of that kind. That submission must be accepted. The function of making appropriate administrative arrangements for the conduct of elections does not necessarily extend to informing persons that they have not correctly completed applications for a declaration vote. The ECQ may do this but there is no obligation upon it to do it. The fact that s 5.8.2 of the Returning Officers’ Procedures Manual published by the ECQ says that the returning officer (or the ECQ) should return to the elector for correction any applications not completed correctly or not signed does not impose any statutory duty on the ECQ which would have the effect that s 92 of the Act is contravened if electors were not so informed.
Who may vote
Section 3 defines an elector as “a person entitled to vote under this Act”. Section 101 in div 4 of pt 6 of the Act sets out who is entitled to vote in an election. Relevantly, sub-ss 101(1) and (2) provide:
“101 Who may vote
(1) The following persons are the only persons who are entitled to vote at an election for an electoral district – (a) persons enrolled on the electoral roll for the district;
(b) persons who are not enrolled, but are entitled to be enrolled on the electoral roll for the district because of section 64(1)(a)(ii);
(c) persons whose names are not on the electoral roll for the district because of official error.
(2) A person is not entitled to vote –
(a) more than once at the same election for an electoral district; or (b) at 2 or more elections for electoral districts held on the same day.”
An elector whose name is not on the electoral roll for an electoral district because of an official error must make a declaration vote. A ballot paper must be accepted for counting under s 116(2)(a) only if the person examining the declaration envelope is satisfied that the elector concerned was entitled to vote at the election. That person can only be satisfied if the person’s name is on the roll, or if the person’s name is not on the roll, that is because of official error, which I take to mean error by the ECQ or the AEC.
How voting takes place
The first two subdivisions of div 5 refer to the two different ways in which voting may take place: ordinary voting and declaration voting. The Commissioner, Mr Kerslake, gave evidence as to how electors’ names are marked off the roll. He said that electors attending a polling booth or a declared institution, and electors receiving an elector visitor vote, have their names marked off a certified list before being given their ballot paper.
Mr Kerslake referred to a previous inquiry into electoral matters conducted by the Legal, Constitutional and Administrative Review Committee (LCARC) of the Queensland Parliament, when the then Electoral Commissioner said in relation to apparent cases of dual voting:
“… between 7 and 60 double markings occurred on the roll per electoral district, with an average of 22 per district, and most of these were satisfactorily resolved through the process of sending out
notices requiring explanation.”[4]
[4] Legal, Constitutional and Administrative Review Committee, Parliament of Queensland, Matters Pertaining to the Electoral Commission of Queensland (1996) at page 4 (“the LCARC Report”).
Mr Kerslake said that further investigation most often reveals that some electors have been marked off the roll twice, in error. This can occur, for example, where two electors in the same district have similar names, such as a father and son with the same first name and surname. In a busy polling environment, one name could easily be marked off on different rolls twice and the other not be marked off at all. Polling booths are busy and noisy environments on polling day especially in places such as school halls with poor acoustics. Some electors are difficult to understand in such an environment because they speak quietly, have a speech impediment or a foreign accent, or the issuing officer may not have sharp hearing.[5] There may just be a mistake made in which name is marked off because the issuing officer puts a line next to the wrong name. As a result, a voter may be marked off in error. As Mr Kerslake said in evidence, no election conducted by an electoral commission has ever been free of this kind of human error.
[5] See, eg, Electoral and Administrative Review Commission, Report on the Review of the Elections Act 1983-1991 and Related Matters (December 1991) at [9.123].
As to the incidence of double voting, Mr Kerslake said:
“Even where it can be established that an elector did vote twice, this is not necessarily evidence of deliberate fraud. Examples have been cited where electors have become confused about voting processes, such as filling out postal ballot material but, believing it has been misplaced, voting later at a polling booth, only to find out that another family member had already put their postal vote in the mail. With these types of examples in mind, the (Commonwealth) Joint Standing Committee on Electoral Matters recently concluded, in relation to the 2007 federal election:
Alleged cases of multiple voting raised following the 2007 election are illustrative of an unfounded fear of the effects of multiple voting that are inevitably raised following an election but, when subject to close examination, do not stand up to scrutiny. (Op. cit. p.22 For a list of common examples, see the JSCEM Report on the conduct of the 2007 federal election and matters related thereto, Canberra June 2009 p.36.)
An AEC ‘Electoral Backgrounder’ points out that it has been concluded by every parliamentary and judicial enquiry into the conduct of federal elections, since the AEC was established as an independent statutory authority in 1984, that there has been no widespread and organised attempt to defraud the federal electoral system; that instances of multiple voting that do occur show no pattern of concentration in any district; and that the level of fraudulent enrolment and voting has not been sufficient to have overturned the result in any federal election in Australia.”
Mr Wiltshire’s evidence was that following the 2009 State election, all certified lists used at polling booths, declared institutions and for electoral visits for all of the electoral districts were optically scanned at the ECQ’s Scanning Centre situated at the Salmat Business Force premises at Murarrie and Acacia Ridge.
The marks from the lists are stored in the ECQ’s scanning system. Postal, pre- poll, absent votes, and also votes cast at the Brisbane (all districts) booth are stored as electronic marks in the ECQ’s election management system. The marks from both systems were then combined into the ECQ’s scanning system to produce a consolidated roll of electors who voted in all electoral districts.
The scanning process is undertaken for a number of reasons, but in particular to identify possible non-voters and possible multiple voters.
The scanning of certified lists is usually completed within the first two weeks after the election, while the electronic data from the election management system is usually loaded four weeks after the election. The scanning system reveals whether an elector’s name has been marked off more than once, either on a certified list or as an electronic mark.
Mr Wiltshire said that the fact that a person’s name has been marked off more than once does not by itself indicate that they had voted twice or had been personated by another. The most likely explanation is issuing officer error such as mistakenly crossing the wrong name off a certified list.
A consolidated roll was generated for Chatsworth showing all the electors that had been marked off as having voted on the Chatsworth electoral roll, indicating also on which copy of the electoral roll the elector’s name had been marked off.
Ordinary voting
Subdivision 1 deals with ordinary voting. That method covers electors who, during ordinary voting hours on polling day, enter a polling booth for the electoral district for which the elector is enrolled. Subsection 102(8) provides that the issuing officer must keep a record of all persons to whom the officer issues ballot papers under that section. Under s 102(10), upon being given a ballot paper by the issuing officer the elector must, without delay, vote alone in a voting compartment in the polling booth and there in private mark a vote on the ballot paper in accordance with s 113. Section 113 is found in subdivision 3, which deals with the marking of ballot papers and I shall refer to s 113 when dealing with that subdivision.
An issuing officer may allow another person to assist an elector to vote if the issuing officer is satisfied the elector is unable to vote without help (s 103). Under s 103(2) of the Act, that other person may help the elector by:
“(a) acting as an interpreter; (b)
explaining the ballot paper and requirements of section 113 relating to its marking;
(c)
marking, or helping the elector to mark, the ballot paper in the way the elector wishes;
(d) folding the ballot paper and putting it in the ballot box.”
An issuing officer may also visit patients in hospital on polling day for the purpose of enabling the patients to vote if the hospital or part of the hospital is a polling booth (s 104).
Types of declaration voting
Section 106 deals with who must make a declaration vote. They include:
• An elector who wishes to vote by going to a polling booth which is an institution declared by the ECQ pursuant to s 94(4) to be a mobile polling booth for the purposes of the election if that institution is outside the electoral district for which the elector is enrolled (s 94(4), s 106(b)); • An elector whose name is not on the electoral roll for an
electoral district because of an official error (s 106(c));• An elector who appears from a record made in error to have already voted in the election for any electoral district (s 106(e)); and • An elector who is given a ballot paper and a declaration envelope upon the issuing officer suspecting that the person claiming to be a particular elector is not the elector (s 102(7), s 106(f), s 112).
Of these categories, only s 106(c) is relevant to this application.
In addition to those who must make a declaration vote, s 105 of the Act sets out those who may make a declaration vote. They are ordinary postal voters (s 105(1)(a), (2)), special postal voters (s 105(1)(b), (3)) and electoral visitor voters (s 105(1)(c), (4)).
Ordinary postal voters
An ordinary postal voter is, pursuant to s 105(2) of the Act:
“(a)
an elector who will not, throughout ordinary voting hours on polling day, be within 8km, by the nearest practicable route, from a polling booth;
(b)
an elector who will, throughout ordinary voting hours on polling day, be working or travelling under conditions that prevent voting at a polling booth;
(c)
an elector who will, because of illness, disability or advanced pregnancy, be prevented from voting at a polling booth;
(d)
an elector who will, because the elector is caring for a person who is ill, has a disability or is pregnant, be prevented from voting at a polling booth;
(e)
an elector who will, because of membership of a religious order or because of religious beliefs, be prevented from voting at a polling booth for all, or the majority, of ordinary voting hours on polling day;
(f)
an elector who a doctor has certified, in writing, is so physically incapacitated as to be incapable of signing the elector’s name.”
Special postal voters
A special postal voter is, pursuant to s 105(3) of the Act:
“(a) an elector whose name is included in the register of special postal voters because of a written application that satisfies the commission that –
(i) the elector’s address, as shown on an electoral roll immediately before the commencement of this paragraph, is more than 15km but not more than 20km, by the nearest practicable route, from a polling booth; or (ii) the elector’s address is more than 20km, by the nearest practicable route, from a polling booth; or (iii) the elector is entitled to be enrolled as a general postal voter under the Commonwealth Electoral Act 1918, section 184A(2)(d) to (h). (b) an elector whose address has been excluded from the electoral roll under an arrangement under section 62 because of the Commonwealth Electoral Act 1918, section 104.”
General postal voters under s 184A(2) of the Cth Act are those who have applied for and been granted registration as a general postal voter on any of the following grounds:
“(a) the applicant’s real place of living is not within 20
kilometres, by the shortest practicable route:
(i) of any polling place; or (ii)
of any place determined under paragraph 227(4)(a) to be a place that will be visited by mobile polling teams for the purposes of section 227;
(b) the applicant:
(i)
is a patient at a hospital (other than a special hospital or a hospital that is a polling place); and
(ii)
because of serious illness or infirmity, is unable to travel from the hospital to a polling place;
(c)
because of serious illness or infirmity, the applicant is unable to travel from the place where he or she lives to a polling place;
(ca)
because the applicant will be at a place (other than a hospital) caring for a person who is seriously ill or infirm, the applicant is unable to travel from that place to a polling place;
(d) the applicant is detained in custody; (e)
the enrolment of the applicant was obtained by means of a claim signed under subsection 98(3);
(f)
a registered medical practitioner has certified, in writing, that the applicant is so physically incapacitated as to be incapable of signing his or her name;
(g)
the applicant’s address has been excluded from the Roll under section 104;
(h)
because of the applicant’s religious beliefs or membership of a religious order, the applicant:
(i) is precluded from attending a polling booth; or (ii)
for the greater part of the hours of polling on polling day, is precluded from attending a polling booth;
(i)
the applicant is a defence member, or defence civilian, who is serving outside Australia;
(j)
the applicant is an AFP officer or staff member who is serving outside Australia;
(k) the applicant is an eligible overseas elector.”
The certificate referred to in s 184A(2)(f) of the Cth Act must be lodged with an application made on that ground (s 184A(4)). An application in respect of an elector to whom s 184A(2)(e) or (f) applies may be made by another person on behalf of the elector (s 184A(3)). Section 98(3) of the Cth Act provides:
“(3) Where a person wishes to make a claim for enrolment, for transfer of enrolment or for age 17 enrolment and a registered medical practitioner has certified, in writing, that the person is so physically incapacitated that the person cannot sign the claim, another person may, on behalf of the person, fill out and sign the claim in accordance with the directions of the first-mentioned person.”
Under s 67A of the Act, the ECQ must keep a register of special postal voters.
Electoral visitor voters
An electoral visitor voter is, pursuant to s 105(4) of the Act:
“(a)
an elector who will, because of illness, disability or advanced pregnancy, be prevented from voting at a polling booth;
(b)
an elector who will, because the elector is caring for a person who is ill, has a disability or is pregnant, be prevented from voting at a polling booth.”
Casting a declaration vote
An elector, whose identity is not in issue, who may or must make a declaration vote, must cast such a vote in one of five ways set out in s 107 of the Act.
1. Drive-in voting
If an elector is unable to enter a polling booth because of illness, disability or advanced pregnancy, but is able to come to a place close to the polling booth, then the issuing officer may perform his or her functions and the voter may vote at that place as if it were the polling booth (s 103(3), (4), s 107(a)).
2. Absent voting at a polling booth outside electorate
If the elector is not enrolled for the electoral district in which the polling booth is located, such an elector must sign the appropriate declaration on the declaration envelope before the issuing officer and have the officer sign the envelope as witness (s 107(b), s 108). At a State general election, electors may vote at any polling booth in Queensland. There were 1,345 polling booths in Queensland for the 2009 State election. Absent votes are forwarded to the returning officer in the elector’s enrolled district for counting.
For the 2009 State election, for the first time in any State election, the ECQ deployed small handheld computers in each polling booth, each loaded with a full copy of the Queensland electoral roll. This made it easier to verify each absent elector’s enrolment details and to ensure that the correct ballot paper was issued. This was an improvement on previous elections where issuing officers had been required to rely on the elector’s own understanding of the electoral district in which he or she were enrolled. In the event that the elector was mistaken, the ballot with which the person was issued would ultimately not be admitted to the count.
3. Pre-poll voting
If an elector wishes to make a declaration vote during the period beginning three days after the cut-off day for nominations and ending at 6 pm on the day before polling day, the elector may go to an office staffed by an issuing officer and request a ballot paper and declaration envelope from the officer. Once again, the appropriate declaration on the declaration envelope must be signed before the issuing officer and the officer must sign the envelope as witness. The dates for making such a vote during the 2009 State election were from 9 March 2009 until 6 pm on 20 March 2009 (s 107(c), s 109).
For the 2009 State election, the ECQ established 225 pre-poll centres in Queensland and 18 interstate or overseas, including Queensland government offices overseas. The ECQ website shows that the overseas offices were in Shanghai, Bangalore, Seoul, Boroko, London, Hong Kong, Taipei, Tokyo, Wellington, Riyadh, Abu Dhabi and Los Angeles.
4. Electoral visitor voting
An elector who is eligible to be an electoral visitor voter may, by writing signed by the elector and posted, faxed or delivered (by the elector or someone else) to the ECQ or the returning officer for the electoral district in which the elector is enrolled, request to vote as an electoral visitor voter. The request should state the address the electoral visitor is to visit. If the request is received not later than 6 pm on the Thursday before polling day (in this case 6 pm on Thursday 19 March 2009) the ECQ or the returning officer must ensure that an issuing officer visits the elector for the purpose of enabling the person to vote. Electoral visitor voting was available from 4 March 2009 to 6 pm on 21 March 2009. Such an elector may make an ordinary vote or declaration vote (s 107(e), s 111).
5. Postal voting
As the question of postal voting loomed large in this application, I shall set out the text of s 110 of the Act in full:
“110 Making a declaration vote using posted voting papers
(1) An elector who is an ordinary postal voter may, by writing signed by the elector and posted, faxed or delivered (by the elector or someone else) to the commission or returning officer for the electoral district for which the elector is enrolled, request a ballot paper and declaration envelope. (1A) The request must state the address to which the ballot paper and declaration envelope is to be posted, delivered or sent. (2) If the request is received not later than 6p.m. on the Thursday before polling day, the commission or returning officer must post, deliver or send a ballot paper and declaration envelope to the elector. (3) The commission must, as soon as practicable after the issue of the writ for an election, post a ballot paper and declaration envelope to each special postal voter. (4) Returning officers and the commission must keep a record of all ballot papers and declaration envelopes posted, delivered or sent under this section. (5) Subject to subsection (7), on receiving the ballot paper
and declaration envelope, the elector must –(a) sign the appropriate declaration on the declaration envelope before another elector or a person approved by the commission for the purposes of this paragraph and have the other elector or person sign the envelope as witness; and
(b) mark a vote on the ballot paper in accordance with section 113; and
(c) place the ballot paper in the envelope and seal the envelope; and
(d) either –
(i)
give the envelope to a member of the commission’s staff at an office of the commission before polling day or at a polling booth on polling day; or
(ii)
post or send the envelope, or give it to another person to post or send, to the commission or the returning officer.
(6)
If the elector is unable to vote without help, another person may help by doing any of the things mentioned in subsection (5)(b) to (d) on behalf of the elector.
(7) A member of the commission’s staff who is given an
envelope under subsection (5)(d)(i) must –
(a)
if it is given before polling day – send the envelope to the appropriate returning officer or put the envelope in a ballot box at the office; or
(b)
if it is given on polling day – put the envelope in a ballot box at the office.”
Casting a postal vote
The requirements for the casting of a valid ordinary postal vote are:
• The elector must make a request for a ballot paper and
declaration envelope (“the application”);
• The application must be in writing; • The application must be signed[6] by the elector:
(a)
by signing the person’s name in writing on the application; or
(b)
if the person is unable to sign as mentioned in paragraph (a) – by making the person’s mark on the application as a signature before another person who signs the application as witness; or
(c)
if the person is unable to sign as mentioned in paragraph (a) or make a mark as mentioned in paragraph (b) – by having another person (the other person) sign the other person’s name in writing, and clearly print the other person’s name and address and the words “signed for the elector”, on the
[6] As to this see below at [181]-[183].
application;[7]
[7] Section 179 of the Act.
• The application must be posted, faxed or delivered by the elector or someone else to the ECQ or the returning officer of the electoral district in which in the elector is enrolled;
• The application must state the address to which the ballot paper and declaration envelope is to be posted, delivered or sent;
• The application must be received by 6 pm on the Thursday
before polling day;
• If it is so received, the ECQ or the returning officer must post, deliver or send a ballot paper and declaration envelope to the elector; • Returning officers and the ECQ must keep a record of all ballot papers and declaration envelopes so posted, delivered or sent;
• The elector must sign (in either of the three ways set out above) the appropriate declaration on the declaration envelope before another elector (or another person approved by the
ECQ);[8]
[8] As to this, see below at [178]-[180].
• The elector must have the other elector or person sign the
declaration envelope as witness;
• The elector must mark a vote on the ballot paper in accordance with s 113 or, if unable to vote without help, another person may mark a vote on the ballot paper, in accordance with s 113 on behalf of the elector;
• The elector must place the ballot paper in the declaration envelope or, if unable to vote without help, another person may place the ballot paper in the declaration envelope on behalf of the elector;
• The elector must:
o give the declaration envelope to a member of the ECQ’s staff at an office of the ECQ before polling day or at a polling booth on polling day; or
o post or send the declaration envelope, or give it to another person to post or send, to the ECQ or the returning officer; or o if the elector is unable to vote without help, another person may help by doing either of those things;
• A member of the ECQ staff who is given a declaration envelope before polling day must send the envelope to the appropriate returning officer or put the envelope in a ballot box at the ECQ office;
• A member of the ECQ staff who is given a declaration envelope on polling day must put the envelope in a ballot box at the ECQ office.
•
In addition, in respect of special voters, the ECQ must as soon as practicable after the issue of the writ, post a ballot paper and declaration envelope to each special postal voter.
Requesting a postal vote
An application for postal vote can be made once the writ has issued. The time and date for the last receipt of an application for postal vote in this election was 6 pm on Thursday 19 March 2009.
Mr Kerslake gave evidence that there a number of different ways that an application for a postal vote could be made to the ECQ. It could be made by facsimile transmission to the ECQ central postal voting centre or posted or delivered by the elector or by another person or organisation such as a political party to the ECQ central postal voting centre or to the returning officer of the electoral district.
Those sent by facsimile transmission were almost immediately scanned and processed by the ECQ and declaration envelopes sent electronically to print by the returning officer of the relevant electoral district. Those applications delivered by political parties were often delivered in large batches to the central postal voting centre where they would be scanned. If the volume of applications received was too great for the applications to be scanned expeditiously or the applications had adhesive tape on them making them difficult to scan at the ECQ office, they were sent offsite to one of two centres with equipment which could scan huge numbers quickly. The turnaround time for the return of the scanned applications to the ECQ was usually 24 hours. All applications were then checked to see that they were valid under the Act and then the declaration envelope would be sent to an electronic print queue at the electoral district in which that voter was enrolled. Applications received by mail were scanned and then dealt with in the same way. Any applications hand delivered by electors to the ECQ were dealt with immediately. The time and date of receipt of applications is not recorded by the ECQ to save time. Mr Wiltshire said it was more important to have them scanned and into the system in order to issue the vote.
The ECQ records electronically the time and date on which the application is scanned (whether internally or by external contractors) and then the time and date on which the scanned application is assigned and processed and the declaration envelope sent to the print queue in the electoral district in which the voter is enrolled. It also records electronically the address printed on the declaration envelope. The time and date on which the declaration envelope is printed out is also electronically recorded. The declaration envelope is designed so that it is returnable to the returning officer of the elector’s electoral district. .
The forms in which applications are made could be the form produced by the ECQ, which is available in hard copy in places such as post offices or electronically on the ECQ’s website, or forms produced by the political parties. These forms are not required to be approved by the ECQ and often create difficulties for the ECQ in dealing with them expeditiously and for electors in ensuring that the applications are valid. I will return to this topic with recommendations for law reform.
The ECQ’s obligation to “post, deliver or send”
Section 110 of the Act was amended in a number of respects following the decision in Tanti v Davies (No 3).[9] At that time, s 110(2) provided:
[9] [1996] 2 Qd R 602.
“If the request is received not later than 6pm on the Thursday before polling day, the Commission or returning officer must post a ballot paper and declaration envelope to the elector.”
The only obligation imposed upon the ECQ in those circumstances — and it was a mandatory obligation — was to post out the voting materials. Section 110(2) of the Act was amended so that the ECQ or the returning officer was not restricted to posting the voting materials but was required to “post, deliver or send” the voting materials.
The applicant argued that the ECQ must choose the means by which it is to fulfil its statutory function. She submitted that it is no longer the case that the ECQ can regard itself as having discharged its statutory function to make administrative arrangements for the conduct of an election merely by posting voting materials, particularly in circumstances where the ECQ knows that the materials will not arrive in time for electors to participate in the election and also where the delay in posting such materials is due to the processes adopted by the ECQ.
The applicant submitted that it was clear from the evidence of Mr Kerslake and Mr Ludwig that the ECQ had facilities to send ballot papers and declaration envelopes electronically to the print queue of returning officers across the State. It was submitted that there was no reason to suppose that, for persons who had nominated addresses outside their own electoral district, the ECQ could not have sent their voting material electronically to the returning officer in the relevant area and that those materials could not have been delivered to the nominated address in the week before polling day. However, the evidence does not support this contention. There was no evidence that the ECQ’s electronic facilities could have been used to send copies of declaration envelopes to returning officers relating to electors who were not enrolled in the electoral district of that returning officer. Rather, it seems more likely that the electronic program ensured that the declaration envelopes for electors within a particular electoral district were sent only to the returning officer of that district.
The ballot papers were not sent electronically with the declaration envelope. As Mr Ludwig’s evidence showed, the ballot paper for the electoral district and a “reply-paid” envelope addressed to the returning officer in the relevant electoral district were added to the declaration envelope by the returning officer. It cannot safely be concluded that it would have been more efficient to send declaration envelopes to the returning officers of electoral districts in which electors from another district had nominated they would be on polling day. Indeed it seems likely that the result would have been more confusion, which would have increased the possibility of error. In any event, this does not deal with electors who had nominated that they would be interstate or overseas.
The second respondent submitted that the history of the provision is instructive. In Tanti v Davies (No 3) the ECQ, realising that merely posting ballot papers to soldiers in Rwanda was unlikely to allow them to arrive in time to allow the soldiers to vote, had arranged for the Australian Defence Force (“ADF”) to deliver the voting papers. The ADF courier urgently sent the ballot papers to Brussels but the soldiers did not receive them in time. Ambrose J held that the ECQ could have performed its statutory obligations under s 110(2) by simply posting the ballot papers and taking the attitude that, having done so, it would not be responsible for any deficiency in the postal service between Australia and Rwanda.[10] However, Ambrose J held that having chosen to deliver the ballot papers, a method not authorised by s 110(2), the ECQ was responsible for the
[10] [1996] 2 Qd R 602 at 628-629.
error or omission of the ADF courier.[11]
[11] [1996] 2 Qd R 602 at 630.
In this context, it was submitted that the amendment to s 110(2) to allow the ECQ to “deliver or send” a ballot paper was intended to expand the options open to the ECQ as to what it was permitted to do but not to change radically the obligations of the ECQ by imposing a requirement that it must deliver ballot papers in time for all voters who request a postal vote to be able to cast such a vote.
The applicant submitted that plainly the intention of the Parliament is that any elector who requests a declaration vote before 6 pm on the Thursday before polling day is to be given the opportunity of participating in the election by completing their ballot paper before 6 pm on polling day and posting it back to the ECQ in a declaration envelope to be received by 6 pm on the tenth day after polling day. Consequently, it was submitted that the ECQ must put administrative arrangements in place that are appropriate to achieve that outcome.
Section 110(2) was amended by the Electoral Amendment Act 1997 (Qld). The explanatory memorandum indicates that the amendments flowed from “the views expressed by Ambrose J” and the LCARC Report and says that the amendment to s 110 was to:
“allow the ECQ to send the ballot paper and declaration envelope to the postal voter by means other than the post and the voter to return the declaration envelope containing the ballot paper likewise by means other than the post.” (emphasis added)
The second respondent submitted that there was no hint in the explanatory memorandum or the LCARC Report that the purpose of the amendment was to impose additional obligations upon the ECQ.
Further, it was submitted, as it would be impossible for the ECQ to comply with the requirement contended for by the applicant, the legislature could not have intended to give the ECQ such a task, with the attendant risk than any election is liable to be set aside. For example, it was submitted, it would be impossible to “deliver” all voting materials in response to applications received on the Thursday before polling day to electors. Mr Kerslake’s evidence was that approximately 6,500 applications for postal votes were received on that Thursday. There would have been applications which arrived on the Thursday from interstate and overseas. It could not be supposed that the legislature intended that the ECQ must ensure that the ballot papers are received by an elector in a remote place when that elector’s application for a postal vote arrived at 5.30pm on the Thursday before polling day.
The second respondent submitted that the ECQ’s obligation is expressed disjunctively and that it may post or deliver or send a ballot paper and declaration envelope. It is open to the ECQ to use any of the methods described in the provision. It may satisfy its obligation by putting the ballot paper in the post and allowing the post to take its course.[12] But it may also satisfy its obligation by sending or delivering the ballot papers by some other means, as Mr Ludwig said he did with some of the applications for postal votes received from electors in Chatsworth who gave an address within Chatsworth as the address to which they wanted their voting materials delivered.
[12] In Tanti v Davies (No 3), Ambrose J held at 628-629 that the ECQ is not responsible for any delays or omissions in the postal service.
I find myself in respectful agreement with the ECQ’s submissions on this point. The obligation under s 110(2) is to “post, deliver or send” material to the elector. The elector is required to state the address to which the material is to be posted, delivered or sent: s 110(1A). What s 110(2) requires is that material be posted, delivered or sent to the elector at that address. There is no obligation to ensure that the elector is available and able to collect the material. There is no obligation to place the material in the elector’s physical possession. Where that is required, the Act says so: see, for example, s 110(5)(d)(i) and (7); s 102(4); s 104(2)(a) and 111(4)(a); s 108(3); s 109(3); and s 112(2).
Section 110(2) is complied with if material is posted to the elector at the requested address. Posting is authorised by s 110(2). So are other (unspecified) means of delivery or sending. None is mandated. Section 110(2) is addressed to the ECQ and returning officers. It is concerned with actions which lie within their power to perform. Section 110(2) is not concerned with receipt by an elector, but with posting, delivering or sending material to an address nominated by the elector.
Processing of postal vote applications
Mr Kerslake, the Commissioner, gave evidence as to the ECQ’s method of processing postal vote applications for the 2009 State election. The processing of postal vote applications was centralised at a single location. Over 80 staff were employed for various periods at a central postal voting facility (“CPV”) at Woolloongabba. Postal vote applications were received at the CPV from a variety of sources including the ECQ head office, returning officers and political parties. Political parties were requested by the ECQ to deliver applications to the CPV up until the final week before polling day and thereafter to the relevant returning officer.
Postal vote applications were scanned into the ECQ’s declaration voting system and matched against the electoral roll. The lists were then forwarded electronically to the relevant returning officer whose task was to print off the declaration envelope and post the ballot material. Since many postal voters would be in their own electoral district during the election period, Mr Kerslake said that posting the actual ballot material locally reduces postage times. Obviously the despatch of postal votes cannot begin until ballot papers are available.
This method had been trialled in the local government elections before its use in the 2009 State election. It was submitted by the applicant that it led to considerable delays in the despatch of postal votes particularly in the period up to 16 March 2009 and therefore that declaration envelopes and ballot papers should have been despatched other than by post. For the reasons already given, however, the ECQ had a discretion to despatch the voting materials by means other than post but had no obligation to do so. Further, I would not readily conclude that it was the use of a centralised electronic system which led to delays. It appears that any delay was the result of the increasing number of requests for postal ballots that were received and the large number delivered to the ECQ, particularly on 3 March 2009. The centralised electronic system has the advantage that it provides an accurate record of when applications were scanned and processed when declaration envelopes printed and the address to which each declaration envelope was sent. The centralised scanning process led, with remarkably few exceptions, to clear copies being kept of the applications for postal votes.
Mr Kerslake said that to maximise processing speed, the ECQ did not issue receipts to political parties for individual elector applications they delivered. This also avoided lengthy delays for party officials who would otherwise have had to wait some time while the number of applications in each batch was counted. There is no statutory duty on the ECQ to issue a receipt for each application for postal vote that it receives nor to date stamp those received.
Mr Kerslake said that if an application was rejected for any reason (such as failure to sign the application) a letter was sent to the elector advising of the reason and giving the elector an opportunity to submit a fresh application. As I have already observed, there is no statutory obligation on the ECQ to do so.
Mr Kerslake said that every application for a postal vote received by the ECQ up to the deadline of 6 pm on Thursday 19 March 2009 was processed and ballot material despatched. He said that in any election, however, some electors leave it until the last minute to apply and 2009 was no exception. Over 6,700 applications from across Queensland were received by the ECQ on the cut-off day. 1,500 of those were delivered by the LNP at 3.20pm on that day. Mr Kerslake that ECQ staff worked into the night to process last minute applications but despite this, the time taken for mail delivery inevitably meant that a number of those applicants would not have received their ballot papers in time to vote. This is a further reason for the law reform which I recommend later in these reasons.
Mr Kerslake said in some instances the time taken to process applications was prolonged because of particular processes adopted by political parties. At recent elections there has been a constant increase in postal vote activity by political parties, which mail applications to electors with a reply-paid envelope that is returned to the political party in the first instance. Before passing these applications on to the ECQ, the political party records each elector’s details on a database and then obtains progressive lists of processed applications from the ECQ, with the aim of timing the mail-out of campaign literature to coincide with the despatch of ballot material.
Mr Kerslake said that while this process may have been intended to benefit electors as well as political parties, it nevertheless constituted an additional step in the process, which may have been a factor in some cases where electors’ departure for overseas was imminent.
In some cases it took longer to process applications because of the way the political parties designed their particular applications. For example, some forms used adhesive tape as a seal, which prevented the ECQ’s own equipment being used so that the forms had to be sent offsite for scanning with more “hi-tech” equipment, adding to the processing time.
Other forms allowed two electors to apply on the one page, meaning that all these forms had to be double handled. An elector filling in a second box on someone else’s behalf could also mistakenly sign both parts, with the attendant risk that the signature on one of the ballot paper declarations would not match the corresponding application and would therefore be rejected at scrutiny.
Mr Kerslake said that for the 2009 election in the electoral district of Chatsworth, 91.2 per cent of the postal votes issued were posted to electors at either their home address or to a post office box within the electoral district of Chatsworth. This suggests that many postal vote applicants were in fact still at home during the election period and could have availed themselves of other facilities for voting. Mr Wiltshire said that it appears that more people are applying for postal votes as “a lifestyle choice” to enable them to vote during the week and leave the weekend free.
The ECQ’s records show that of the 2,476 postal votes sent to electors in Chatsworth during the 2009 State election, 90.2 per cent were returned. This compares favourably with the percentage returned in the State as a whole, where 87.4 per cent of the 205,907 postal votes issued were returned. The percentage returned in Chatsworth in 2009 is similar to the percentage of postal votes returned in Chatsworth in 2006 where there were 2,349 postal votes issued with a 90 per cent return rate. It is not surprising that there is not a higher rate of return. This is the only type of voting where there is no electoral officer present to help the elector. Mr Wiltshire gave evidence that many people think they have done their civic duty by merely applying for a postal vote. Some ballot papers sit “on top of the fridge” and the elector simply neglects to return them. Some electors leave the State or the country before the ballot papers are printed and, particularly if the only address they give is their enrolled address, the ballot papers cannot be issued to them in time for them to vote.
Mr Kerslake said that a number of security measures have been put in place in relation to postal voting. The first stage of scrutiny requires the matching of signatures. The returning officer scans the envelope with a barcode reader which brings up on a computer the elector’s details and a scanned image of the signature on their application. This is matched against the signature on the declaration envelope and the vote is accepted to the count or rejected as appropriate. The offsite industrial scanners, in the vast majority of cases, produced very clear scans which made reading the signature on the scanned image of the application much easier.
Mr Kerslake deposed that when a declaration vote is rejected, this is not in itself evidence of deliberate fraud. From his experience he said that a typical situation would involve an elector who filled out both the elector’s own application and another on behalf of a spouse or an elderly relative. If the elector inadvertently signed both applications, the signature on the other elector’s application obviously would not match the one that appears on the corresponding declaration envelope, resulting in the vote being rejected. Notwithstanding that, Mr Kerslake said that if the ECQ became aware of clear evidence of any type of electoral fraud that could affect the outcome in a particular electorate, it would as a matter of course refer the matter to the Court of Disputed Returns pursuant to s 129 of the Act. Cases of apparent fraud are also forwarded to the police for investigation.
The Act further provides that all stages of the vote counting process, including the handling of declaration envelopes, are open to scrutiny (s 99). If a scrutineer objects to the assessment of a ballot paper as formal or informal, the polling official must note his or her decision on the back of the ballot paper as a means of identifying that an objection has been made (s 120). Scrutineers from both the ALP and the LNP were in attendance at all stages of the count for the Chatsworth electoral district at the 2009 State election.
Mr Ludwig, the returning officer for the electoral district of Chatsworth, gave evidence of his practice in processing applications for postal votes. As he said, postal vote applications may be made by electors either to the ECQ or directly to the returning officer for the particular electoral district.
Where postal vote applications were made by an elector to the ECQ, those applications were processed by the ECQ. Where they were validated by the ECQ, the data for the particular elector was forwarded to the returning officer electronically in a print queue to enable a postal vote declaration envelope to be printed. The returning officer then accessed that data and printed a declaration envelope for the particular elector. Once the declaration envelope had been printed, the returning officer put a ballot paper for the electoral district in the declaration envelope together with a return pre-paid envelope addressed to the returning officer into another envelope to be despatched to the elector.
[103] (2008) 169 FCR 529 at 553-554.
I respectfully agree with the approach taken by Tracey J. It is a matter of considering each ballot paper individually to determine whether it falls foul of the statutory prohibition.
The ballot papers in question
The parties were able to agree that certain votes that were counted as formal should have been declared informal and that certain votes that were declared informal should have been counted as formal.[104] One vote that was counted formal for Mr Kilburn should have been declared informal. One vote counted formal for Ms Caltabiano should have been declared informal. Twenty-four votes which were declared informal should have been counted for Mr Kilburn. Eighteen votes which were declared informal should have been counted for Ms Caltabiano. As a result, there will be a net gain to Mr Kilburn of 23 votes and a net gain to Ms Caltabiano of 17 votes. Mr Kilburn therefore has 13,584 votes and Ms Caltabiano 13,504 votes, giving a revised preliminary winning margin to Mr Kilburn of 80 votes.
[104] Exhibit 14.
The remaining 60 ballot papers in dispute are Exhibit 16 and copies of them are found in booklet form in Exhibit 15. The parties asked me to examine the original ballot papers to determine if there should be any change in their attribution. Of these, 25 were declared informal by the returning officer; 26 were counted as formal votes for Ms Caltabiano; and 9 were counted as formal votes for Mr Kilburn.
Although the authorities are useful in determining the approach taken by Court of Disputed Returns, what must guide my decision as to whether a particular ballot paper has effect as a formal or informal vote depends very much on the precise terms of the Act as to what constitutes a formal or informal vote.
The ballot papers fall into the following broad categories:
1. 19 ballot papers which may contain “writing or a mark by which the elector can be identified”;
2. 14 ballot papers which can contain overwriting suggesting a change;
3. 20 ballot papers containing marks other than numbers, ticks or crosses;
4. Six ballot papers with marks or numbers repeated;
5. One ballot paper with markings outside the squares.
The categories are not discrete, as some fall within more than one category. However, the categories are a useful way to consider them.
1. Of the 19 ballot papers in the first category, seven were counted as formal votes for Ms Caltabiano, two as a formal vote for Kilburn and 10 as informal.
2. Of the 14 ballot papers in the second category, six were counted as formal votes for Ms Caltabiano, five for Mr Kilburn and three informal.
3. Of the 20 ballot papers in the third category, 12 were counted as formal votes for Ms Caltabiano, two for Mr Kilburn and six informal.
4. All of the six ballot papers in the fourth category were declared informal.
5. The one ballot paper in the fifth category was counted as a formal vote for Ms Caltabiano.
I shall refer to the votes by their page number in Exhibit 15.
Category 1: identifying writing or marks
2. This voter has written the name of a cartoon character and a box underneath the names of the candidates. The additional name and box have then been crossed out. This could not be said to be a mark or writing from which the elector can be identified. This vote was correctly counted as a formal vote for Ms Caltabiano.
4. This vote has the number 1 heavily scribbled out against Ms Caltabiano’s name and a clear number 1 put in against Mr Kilburn’s name. However, the crossing out of the mark against Ms Caltabiano’s name is initialled. The second initial appears to be B but it is not possible to tell what the first initial is. Although the elector would be able to identify himself or herself from the initials, they do not appear to be initials by which any other person of the type authorised to see the ballot papers would be able to identify the elector. In those circumstances, the vote was wrongly counted informal and should have been counted as a formal vote for Mr Kilburn.
5. This elector has whited out the numbers which were in the squares on the ballot and written the number 1 clearly against Mr Kilburn’s name. Where the elector has whited out the numbers inside other squares the elector appears to have initialled those alterations. The initials are illegible and could be any letters of the alphabet. Accordingly, it could not be said that they represent a mark or writing from which the elector can be identified. As was conceded by the applicant, the ballot was wrongly counted informal and should be counted as a formal vote for Mr Kilburn.
6. This ballot paper contains a misspelt obscenity against Mr Kiburn’s name and other writing expressing the elector’s view about the election. However, in the boxes a clear voting preference has been indicated. It cannot be said that the writing on the ballot paper is writing from which the elector can identified. The vote should not have been counted as informal but rather a formal vote for Ms Caltabiano.
7. In this ballot paper the elector has changed the number inserted in the square opposite the name of Mr Zegenhagen and initialled it “Pa Jo”. There are 376 electors on the Chatsworth electoral roll whose surnames begin with Jo. This was a postal vote. Of the 39 postal votes cast by people whose surname begins with the letters Jo, there is only one person whose first given name begins with the letters Pa. This ballot paper therefore does contain writing by which the elector can be identified and so was correctly declared informal.
13. This ballot paper has a lewd drawing and an obscene description written on it but clearly has the number 1 written in the square opposite Ms Caltabiano’s name. I am not of the view that this ballot paper contains any writing or mark by which the elector can be identified and so it was correctly declared as a formal vote for Ms Caltabiano.
15. This ballot paper has put an extra box, with the word “me”, among others, written next to it. That box has been ticked. Additionally, the elector has clearly written the number 1 in the square for Mr Kilburn and does not contain writing by which the elector can be identified. Accordingly this vote was correctly counted as a formal vote for Mr Kilburn.
16. This ballot paper was clearly initialled “GK”. It was submitted that there are 48 people with the initials GK in the electorate of Chatsworth. The vote was cast at the Whites Hill booth, which was allocated two certified lists, numbers 57 and 58. Of all the persons who voted at Whites Hill there is only one with the initials GK. The ballot therefore did contain writing by which the elector can be identified and was correctly declared informal.
18. This ballot paper had various unintelligible line drawings and a message apparently to the candidate for whom the elector voted. She has also written on it a woman’s name which, while not unusual, is not an extremely common name. It was therefore correctly in my view counted as informal. Because of the given name, the message to the candidate written on it and the knowledge of the booth at which the vote was cast, it contains writing by which the elector can be identified.
22. This ballot paper has a political slogan written on it which shows that the person supports one side of politics. It clearly indicates a first preference for Ms Caltabiano and was correctly counted as a formal vote for Caltabiano. In my view it did not contain writing by which the elector can be identified.
29. This ballot was cast by pre-poll voting in person. This vote has not been initialled but in fact signed with a full signature. In those circumstances it contains writing by which the elector can be identified and the vote was correctly declared informal.
30. This ballot paper has a squiggle on the top right-hand side. It looks a little like the letter W but it is more likely that it is the kind of mark that is made when a person is trying to ensure that his or her pen is working. The vote clearly indicates a first preference for Mr Kilburn and, as the applicant conceded, should have been counted as a formal vote for Mr Kilburn rather than as an informal vote.
31. This ballot paper has the number 1 outside the square opposite Mr Kilburn’s name and a cross inside the square opposite Mr Kilburn’s name. The 1 and the cross clearly identify an intention to vote for Mr Kilburn. It has initials over the box containing the cross which could be KY, KN or KM or perhaps even K7. It could not be said that the ballot paper contains any writing or mark by which the elector can be identified and therefore, as the applicant conceded, the vote should have been counted as a formal vote for Mr Kilburn rather than as an informal vote.
33. This ballot paper was cast as an absent vote and has initials or the shortened form of a woman’s given name. It was cast as an absent vote and therefore the person was likely to have been identified by the staff at the polling booth where it was cast. However, they would not have seen the ballot paper. It would have been put in a declaration envelope which would not have been opened until received at the electoral district of Chatsworth whereupon it would have been placed in a ballot box without looking at the ballot paper itself. In those circumstances it could not be said that there is writing by which the elector can be identified and the ballot paper should have been counted as a formal vote for Ms Caltabiano rather than as an informal vote.
38. This ballot paper has a rather vulgar message written on it which appears to relate to the elector’s attitude towards recycled water. However, the writing was not such that the elector could be identified. Accordingly this was correctly counted as a formal vote for Ms Caltabiano.
40. This ballot paper contains extra writing expressing a forceful opinion about daylight saving. It clearly indicates a preference for Caltabiano. In my view, it does not contain any writing by which the elector can be identified. The view expressed is not an uncommon one. Accordingly, the ballot paper was correctly counted as a formal vote for Caltabiano.
52. In this ballot paper the elector has obliterated the numbers 3 and 4 where they appear inside the square and has written 3 and 4 in the reverse order just outside the square. The numbers 1, 2 and 5 are clearly marked in the squares opposite each of the other three candidates. There can be no doubt that a first and second preference votes at the very least are clearly expressed. However, on this vote the initials RR are written where the changes were made. It was an absent vote. There are 1,514 electors on the rolls in the electorate of Chatsworth whose surname begins with the letter R. Of these 68 have a first given name which begins with the letter R. In these circumstances the ballot paper does not contain writing by which the elector can be identified and the ballot paper was correctly counted as a formal vote for Mr Kilburn.
56. This voter filled in all the boxes on the ballot paper from 1 to 5. In addition the voter has added a drawing which may or may not have meaning. It does not, in my view contain a mark by which the elector can be identified and was correctly counted as a formal vote for Caltabiano.
58. This ballot paper clearly votes 1 for Caltabiano and then contains a handwritten opinion about abortion. The opinion is not so uncommon as to be likely to identify the person who wrote it. I am satisfied that the ballot does not contain any writing by which the elector can be identified and this vote was correctly counted as a formal vote for Caltabiano.
Category 2: overwriting
1. This ballot paper contains overwriting which shows that the elector wished to change or amend what appears on the ballot paper. It is clear from the ballot paper that the elector had first put 1 against the name of Caltabiano and then has crossed that out and put 1 Kilburn, 2 Cooney. It has effect to indicate a vote. It does not contain two or more squares in which the number 1 can be taken to have been written because it is obvious that the number 1 has been crossed out from the square opposite Ms Caltabiano’s name. In my view this was incorrectly counted informal and should instead be counted as a formal vote for Mr Kilburn.
24. This ballot paper contains a 1 in the square opposite the name of Mr Kilburn and a 2 in the square opposite the name of Ms Caltabiano which has then been covered over with pencil. Whether or not one regards that as an attempt to obliterate the number 2 to put 2 over whatever mark was previously there, the fact that there is only one number 1 on the ballot paper has effect to indicate a first preference vote for Mr Kilburn. This vote should not have been counted informal but should instead be counted as a formal vote for Mr Kilburn.
27. This vote was a pre-poll vote in person. It clearly has the numbers 1 to 4 in the squares opposite the candidates but the number in the fifth square has been either obliterated or written unusually. It can be ignored because the ballot paper clearly indicates a first preference vote for Ms Caltabiano and it was correctly declared a formal vote for Ms Caltabiano.
32. On this ballot paper the elector appears to have written 1 against Mr Cooney’s name and then changed that to a 2. There is clearly a 1 on the square opposite the name of Mr Kilburn. Accordingly this was correctly counted as a formal vote for Mr Kilburn.
35. This ballot paper has the numbers 1 to 4 clearly marked in squares opposite four of the candidates. In the case of the fifth candidate it appears that the number 5 has been written and then an attempt made to obliterate it. In such a case the voting intention is clear and it should have been counted as a formal vote for Mr Kilburn rather than as an informal vote.
36. This ballot paper contains a 1 and a cross in the square opposite the name of Ms Caltabiano. This has the effect of indicating the voting preference of the elector and was correctly counted as a first preference vote for Ms Caltabiano.
48. This ballot paper has the numbers 1 to 5 marked in the squares opposite the candidates; however, the number in the square opposite Ms Caltabiano’s name was originally a 2. That has been overwritten to make it 1. This was correctly counted as a formal vote for Ms Caltabiano.
49. In this case each square opposite a candidate has a number in it. The numbers 2, 3, 4 and 5 clearly appear against the names of four of the candidates and the number 1 against Mr Kilburn’s name. That name has been overwritten but remains clearly a 1. In those circumstances it has the effect of indicating a vote for Mr Kilburn and was correctly as a formal vote for Mr Kilburn.
50. The only square filled in this case is the square opposite the name of Mr Kilburn and has both a 1 and a cross in it. This appears to indicate the voter’s preference for Mr Kilburn and was correctly counted as a formal vote for him.
51. This ballot paper has the numbers 1 to 5 clearly written within the squares opposite the five candidates. A cross has also been more faintly marked where the numbers 1, 2 and 3 are strongly written. This was correctly declared to be formal vote for Kilburn.
53. This ballot paper has the number 1 and a cross in the square opposite the name of Mr Kilburn and therefore has the effect of indicating a vote for him. It was correctly counted as a formal vote for Mr Kilburn.
54. This ballot paper has the number 1 and a cross clearly indicated in the square opposite the name of Ms Caltabiano. It has the effect of indicating a vote for her and was correctly counted as a formal vote for her.
59. This ballot paper has what appears to have started life as a tick in the square opposite Ms Caltabiano’s name. It has then been heavily written over to look like either a blob or a 1. In my view it is a mark which indicates a preference for the candidate and therefore has effect to indicate a vote for Ms Caltabiano. The copy contained on page 59 of Exhibit 15 has what appears to be a tick next to Mr Kilburn’s name. However, that mark is not contained in the original ballot paper tendered as part of Exhibit 16. I can only infer that the mark arose out of the process of photocopying. It can be ignored, with the result that the ballot paper was correctly counted as a formal vote for Ms Caltabiano.
60. This ballot paper has a tick and a 1 in the square opposite the name of Ms Caltabiano. This had the effect of indicating a first preference vote for her and was correctly counted as formal vote for Ms Caltabiano.
Category 3: ballot papers containing marks other than numbers, ticks or crosses
3. This ballot paper has the number 1 marked in the square opposite Ms Caltabiano’s name, and crosses in the squares opposite the names of Mr Kilburn, Mr Cooney and Mr Furze. It has a marking against the name of Mr Zegenhagen which could be a 1, a badly formed cross or a Y. In light of the clear “1” next to Ms Caltabiano’s name, it would be unusual to regard the mark against the name of Mr Zegenhagen as a 1. Accordingly this is a ballot paper in which the number 1 is present only once and therefore indicates a first preference vote for that candidate. In my view, it was incorrectly counted as an informal vote and should be counted as a formal vote for Ms Caltabiano.
8. This ballot paper was a vote taken in a declared institution. It has the numbers 1 to 4 written in a shaky hand but the numbers are clear. The number against Mr Kilburn’s name is less clear but given the shakiness of the hand I infer that it was a 5. In any event the elector clearly indicates a first preference for Ms Caltabiano and the vote was correctly counted as a formal vote for Ms Caltabiano.
10. This vote was cast as an electoral visitor vote. The only mark is in the square opposite the name of Ms Caltabiano. It is not a 1, a tick or a cross but nevertheless it is a mark which indicates the voter’s intended preference and so was correctly as a formal vote for Ms Caltabiano.
12. This ballot paper is marked in the squares opposite the names of Mr Kilburn and Mr Cooney. The number in the square opposite the name of Mr Cooney is a 2. The marking in the square opposite Mr Kilburn is not clearly any number. It looks most like a 3 but it is possible that it is a 1 or that it is just some other kind of mark or symbol. In those circumstances it does not clearly indicate a first preference vote and it was correctly declared to be an informal vote.
14. This ballot paper has a mark only in the square opposite Mr Kilburn’s name. I take that to be a mark that indicates the voter’s intended preference and therefore it has effect to indicate a vote for Mr Kilburn. It was correctly counted as a formal vote for Mr Kilburn.
17. This ballot paper only contains a mark in the square opposite Mr Kilburn’s name. The whole square has been coloured in with pencil. This is a mark that indicates the voter’s intended preference and therefore has effect to indicate a vote for Mr Kilburn. It was correctly counted as a formal vote for Mr Kilburn.
20. This ballot paper contained a 1 in the square opposite Ms Caltabiano’s name and an unusual marking against in the square opposite Mr Kilburn’s name that looks more or less like a 2. This ballot paper was effective to indicate a first preference vote for Ms Caltabiano and was correctly counted as a formal vote for her.
21. This ballot paper has what might be described as an egg-shaped blob in the square opposite the one candidate only. This mark is effective to indicate a preference for that candidate and was correctly as a formal vote for Ms Caltabiano.
26. This ballot paper contains a number 1 in the square opposite the name of Mr Kilburn and a 2 in the square opposite the name of Mr Cooney. The other squares are completely coloured in. As there is only one square which contains the number 1 this ballot paper has effect to indicate a first preference vote for Mr Kilburn and should have been counted as a formal vote for him rather than as an informal vote.
28. This ballot paper has a mark in only one square and that is a mark filling the whole of the square opposite the name of Ms Caltabiano. This has the effect of indicating a vote for Ms Caltabiano and was correctly accepted as a formal vote for her.
37. This ballot has a diagonal mark in the square opposite the name of Ms Caltabiano. This is a mark which indicated the voter’s preference for the candidate and so has the effect of indicating a vote for Ms Caltabiano. The ballot was correctly counted as a formal vote for Ms Caltabiano.
39. This ballot paper also has a diagonal line in the square opposite the name of Ms Caltabiano. This was a mark which indicated the preference of the elector and so was correctly counted as a formal vote for Ms Caltabiano.
41. Each of the squares opposite the candidates on this ballot paper contained a number and the numbers appear to go from 1 to 5. However, they also contain a circle. Nevertheless it is clear that there is only one number 1 in a square opposite a candidate and so this vote is effective to indicate the elector’s preference for that candidate. This vote should be counted as a vote for Mr Kilburn rather than an informal vote.
42. The squares in this ballot paper have been marked A, B, C, D and E. While the elector has not inserted a 1, a tick or a cross, the elector has inserted other marks that indicate the elector’s intended order of preference and therefore should have been counted as a formal vote for Mr Kilburn rather than an informal vote. There is nothing derisory about using the first letters of the
alphabet rather than numbers to indicate a preference.[105]
[105] Cf. Tanti v Davies (No 3) at 635.
43. This ballot paper contains a very thick downward stroke in the square opposite the name of Ms Caltabiano. I take this merely to be an emphatic 1. Number 4 is written in the square opposite Mr Kilburn’s name but that can ignored. The ballot was correctly counted as a formal vote for Ms Caltabiano.
44. This ballot has what appears to be question mark in the square opposite the name of Mr Kilburn and nothing else written in the other squares. This is not a mark that indicates the voter’s preference for Mr Kilburn and so the vote was correctly counted as informal.
45. This ballot has the numbers 1, 2, 3, 4 and 5 clearly in the squares opposite the candidates’ names but the number 1 has a circle around it. This ballot paper nevertheless clearly indicates the order of preference of the voter and was correctly counted as a formal vote for Ms Caltabiano.
46. This vote has the numbers 1, 2, 3 and 4 in the squares opposite the names of four of the candidates. The fifth square contains a rather unusual mark which may be a 5 but also looks like a cross. Whatever has been written in the fifth square there is only one number 1 and the ballot paper was effective to indicate a vote for that candidate. This vote was correctly counted as a formal vote for Ms Caltabiano.
55. This ballot paper is only marked in the square opposite the name of one candidate but rather than a tick, a cross or a number 1, the mark appears to be a variation on a “v”. This is, however, a mark which is sufficient to indicate the voter’s intention to vote for that candidate and so the ballot was correctly counted as a formal vote for Ms Caltabiano.
57. This ballot paper contains an unusual mark in one square only, the square opposite the name of Ms Caltabiano. It might be that the mark is an attempt to draw a bird or it might just be a thick squiggle. In any event only one square is marked and that is sufficient to indicate a preference for that candidate. The vote was correctly counted as a formal vote for Ms Caltabiano.
Category 4: ballot papers with marks or numbers repeated
9. This ballot paper contains the number 1 in two squares opposite two different candidates. Accordingly it must be counted as an informal ballot under s 114(2)(a). It was correctly declared an informal vote.
11. This ballot paper has a cross in the squares opposite the names of two candidates; nevertheless a 1 in a circle has been put against the name of one of those candidates. This is a mark which indicates the voter’s intended order of preference and therefore should have been counted as a vote for Ms Caltabiano rather than as an informal vote.
23. This ballot paper contains the number 1 in the square opposite the name of Ms Caltabiano. It contains a 2, however, against the names of two candidates. When the number two appears in the square opposite the name of Mr Kilburn there is a line coming diagonally out of the square. It is nevertheless clearly still the number 2. In such a case one ignores those numbers higher than the number 1. As the number 1 is clearly placed in the square opposite the name of Ms Caltabiano, this vote should have been counted as a formal vote for Ms Caltabiano instead of an informal vote.
25. This ballot paper contains a 1 in the square opposite the name of Mr Zegenhagen. There is a 2 in the square opposite Ms Caltabiano’s name; a 3 in the square opposite Mr Cooney’s name and a 4 in the square opposite Mr Kilburn’s name and a 4 and a cross in the square opposite Mr Furze’s name. As there are two squares numbered 4, they can be ignored. The ballot paper is effective to give a first preference vote to Mr Zegenhagen which, when distributed, becomes a formal vote for Ms Caltabiano. This ballot paper should have been counted as a formal vote for Ms Caltabiano instead of an informal vote.
34. This ballot paper has the number 1 in the square opposite the name of Mr Kilburn and the squares opposite the names of the other candidates have a cross inserted. As the ballot paper has the number 1 written in the square opposite the name of only one candidate this ballot paper indicates a preference for that candidate. The crosses can be ignored. The ballot paper is not otherwise informal so it should have been counted as a formal vote for Mr Kilburn rather than an informal vote.
47. This ballot paper contains a tick against the name of Mr Kilburn and crosses in the squares opposite the names of the other candidates. One might deduce from this that the voter intended to indicate a first preference for the only candidate who has been ticked; however, it does not fall within any of the categories of formal votes as it only contains ticks and crosses. It cannot be regarded as writing or marks other than the number 1, a cross or a tick to indicate the voter’s intended order of preference and so was correctly declared informal.
Category 5: ballot paper marked outside the squares
19. This ballot paper had numbers marked inside the squares which have been crossed out. Numbers are then found outside the squares but clearly opposite the names of candidates and are numbered from 1 to 5. I am satisfied that this is sufficient to indicate the voter’s order of preference and to indicate a first preference vote for Ms Caltabiano. I am satisfied that this ballot paper was correctly counted as a formal vote for Ms Caltabiano.
Summary of ground 5
A summary of the rulings made by the Court is set out in the table below.
Rulings on Ballot Papers in Dispute
Ruling of the Ruling
Page in ECQ Ruling of
Returning change K- C- K+ C+
| Exh. 15 | ref | the Court |
Officer Y/N
| 1 | 2 | Informal | Kilburn | Yes | 3 |
| 2 | 3 | Caltabiano | Caltabiano | No |
| 3 | 5 | Informal | Caltabiano Yes | 3 |
| 4 | 7 | Informal | Kilburn | Yes | 3 |
| 5 | 9 | Informal | Kilburn | Yes | 3 |
| 6 | 10 | Informal | Caltabiano Yes | 3 |
| 7 | 11 | Informal | Informal | No |
| 8 | 12 | Caltabiano | Caltabiano | No |
| 9 | 13 | Informal | Informal | No |
Ruling of the Ruling
Page in ECQ Ruling of
Returning change K- C- K+ C+
| Exh. 15 | ref | the Court |
Officer Y/N
| 10 | 14 | Caltabiano | Caltabiano | No |
| 11 | 17 | Informal | Caltabiano Yes | 3 |
| 12 | 18 | Informal | Informal | No |
| 13 | 19 | Caltabiano | Caltabiano | No |
| 14 | 20 | Kilburn | Kilburn | No |
| 15 | 21 | Kilburn | Kilburn | No |
| 16 | 22 | Informal | Informal | No |
| 17 | 25 | Kilburn | Kilburn | No |
| 18 | 30 | Informal | Informal | No |
| 19 | 33 | Caltabiano | Caltabiano | No |
| 20 | 45 | Caltabiano | Caltabiano | No |
| 21 | 47 | Caltabiano | Caltabiano | No |
| 22 | 48 | Caltabiano | Caltabiano | No |
| 23 | 54 | Informal | Caltabiano Yes | 3 |
| 24 | 57 | Informal | Kilburn | Yes | 3 |
| 25 | 61 | Informal | Caltabiano Yes | 3 |
| 26 | 65 | Informal | Kilburn | Yes | 3 |
| 27 | 67 | Caltabiano | Caltabiano | No | |
| 28 | 68 | Caltabiano | Caltabiano | No | |
| 29 | 69 | Informal | Informal | No | |
| 30 | 71 | Informal | Kilburn | Yes | 3 |
| 31 | 73 | Informal | Kilburn | Yes | 3 |
| 32 | 79 | Kilburn | Kilburn | No |
| 33 | 89 | Informal | Caltabiano Yes | 3 |
| 34 | 94 | Informal | Kilburn | Yes | 3 |
| 35 | 95 | Informal | Kilburn | Yes | 3 |
| 36 | 102 | Caltabiano | Caltabiano | No | |
| 37 | 103 | Caltabiano | Caltabiano | No | |
| 38 | 104 | Caltabiano | Caltabiano | No | |
| 39 | 105 | Caltabiano | Caltabiano | No | |
| 40 | 107 | Caltabiano | Caltabiano | No | |
| 41 | 111 | Informal | Kilburn | Yes | 3 |
| 42 | 112 | Informal | Kilburn | Yes | 3 |
| 43 | 113 | Caltabiano | Caltabiano | No |
Ruling of the Ruling
Page in ECQ Ruling of
Returning change K- C- K+ C+
| Exh. 15 | ref | the Court |
Officer Y/N
| 44 | 118 | Informal | Informal | No |
| 45 | 119 | Caltabiano | Caltabiano | No |
| 46 | 120 | Caltabiano | Caltabiano | No |
| 47 | 122 | Informal | Informal | No |
| 48 | 127 | Caltabiano | Caltabiano | No |
| 49 | 132 | Kilburn | Kilburn | No |
| 50 | 136 | Kilburn | Kilburn | No |
| 51 | 138 | Kilburn | Kilburn | No |
| 52 | 140 | Kilburn | Kilburn | No |
| 53 | 141 | Kilburn | Kilburn | No |
| 54 | 156 | Caltabiano | Caltabiano | No |
| 55 | 158 | Caltabiano | Caltabiano | No |
| 56 | 159 | Caltabiano | Caltabiano | No |
| 57 | 160 | Caltabiano | Caltabiano | No |
| 58 | 161 | Caltabiano | Caltabiano | No |
| 59 | 162 | Caltabiano | Caltabiano | No |
| 60 | 163 | Caltabiano | Caltabiano | No |
K- C- K+ C+
| TOTALS | 11 | 6 |
As a result of the informal votes that have now been ruled as formal Mr Kilburn has 11 extra formal votes and Ms Caltabiano has 6 extra formal votes. Mr Kilburn therefore has 13,595 votes and Ms Caltabiano 13,510. That means that Mr Kilburn’s winning margin is 85 votes.
Recommendations for law reform
Two recommendations for law reform flow from these reasons for judgment. The ECQ and the political parties standing behind the applicant and the second respondent were invited to make submissions on these matters and each took that opportunity.
The first involves the time limit for making applications for a postal vote. Section 110 of the Act provides that electors have until 6pm on the Thursday before polling day to lodge an application for a postal vote application. Applications received after that time must be regarded as not having been made. However, all applications received prior to the cut-off point must be processed.
The ECQ submitted that it has had long-standing concerns about the deadline for lodging these applications. The lateness of the deadline serves to encourage some electors to leave it until the last minute to lodge their application. However, s 116 of the Act provides that a postal vote must only be accepted for counting if the elector’s declaration has been signed and witnessed before the end of voting hours (6 pm) on polling day. The absence of postal deliveries on a Saturday increases the risk that “last minute” applicants will not receive their ballot material in time to vote, particularly when ballot material is asked to be sent to an interstate or overseas address. The problem was manifestly apparent during my consideration of this matter. The risk can be minimised by moving forward the deadline for lodging an application for a postal vote to 6 pm on the Wednesday before polling day. This improvement could be achieved by replacing the word “Thursday” where it appears in s 110(2) of the Act with the word “Wednesday” and I would recommend such a reform.
The LNP did not support this reform. It did, however, make a number of other suggestions which are outside the scope of what can properly be considered in an application of this type and may more appropriately be referred to a parliamentary committee or dedicated law reform body for consideration.
The second area of desirable law reform concerns the form of postal vote applications. There is presently no requirement in the Act for applications for postal votes to be in any particular form. Section 110 of the Act merely requires that electors must apply “by writing signed by the elector.” The request must also state the address to which the ballot paper and declaration envelope is to be sent.
The ECQ informed the Court that the number of applications for postal votes received by it has significantly increased at recent elections from 102,000 in 2004 to 141,000 in 2006, with a further increase to 216,000 in 2009. One reason for this growth is the significant increase in postal vote activity by political parties. It is commonplace for parties to mail out applications for postal votes to all households in an electoral district. Electors are invited to apply for a postal vote on a form designed by the party and return it in a reply-paid envelope to the political party. The party manually enters each elector’s details into its database before passing applications to the ECQ for processing.
One of the challenges for the ECQ is that it thus receives applications on a number of different forms. This can create difficulties in scanning and processing applications as well as increasing the potential for errors to be made, both by electors and officials. Examples were seen in this case of an elector neglecting to sign the application when there were two applications on the same page or an attorney signing not realising that the method of signing for another person is covered by s 179 of the Act. This issue has been addressed in s 184(1) of the Cth Act, which provides that “[a]n application shall be in writing in the approved form”.
The AEC’s Guidelines for the Reproduction of Postal Votes[106] provide that any reproduction of its postal vote application must reproduce all of the text of the approved form. It is accepted, however, that the artwork on the front cover panel and the AEC’s logo need not be reproduced. The AEC makes available a camera-ready copy of the approved form (minus artwork and logo) for the benefit of political parties.
[106]The ECQ submitted that the Commonwealth Government is currently preparing a Green Paper which will canvass possibilities for the harmonisation of electoral laws across different Australian jurisdictions. This provides the potential for Queensland to adopt an approved postal vote application form. The ALP supported law reform in the context of national harmonisation and recommended that an application for postal vote be in an approved form and that that form be the one currently used by the ECQ. The LNP also supported the use of the current form used by the ECQ which it submitted had considerable advantages over the AEC’s form, which is much more complex.
In my view the ECQ’s form is clear and straightforward but nevertheless could be improved by giving electors a checklist of reasons for a postal vote for them to tick and by making reference to the only ways in which an application may be signed. Having an approved form will immediately reduce the occasion for electors to be denied through error postal votes to which they are entitled. Pending national harmonisation, I would recommend immediately amending s 110 to add a requirement that an application must be in the approved form.
Conclusion
I am satisfied that two electors voted twice (ground 1); two postal votes were issued that should not have been issued (ground 3); six electors were denied a postal ballot under ground 4(a); one elector was denied a vote under ground 4(e); one elector was denied a vote under ground 4(g); and two electors were denied a vote under ground 4(h).
Further, I would have found that one person was denied a vote to which she was entitled under ground 4(b), but I do not make that finding due to the prohibition contained in s 138(2)(b) of the Act.
None of these 14 irregularities could have affected the outcome of the election where the winning margin was 74 votes at the end of counting by the ECQ, 80 votes after the parties had agreed on what ballot papers should be allowed as formal votes under ground 5, and 85 votes after the remaining disputed ballot papers were determined by the Court. It is inevitable that human error will occur in any electoral process no matter how carefully and competently it is conducted. This election was conducted carefully and competently by the ECQ. The errors that were made were insufficient to suggest that the election result in the electoral district of Chatsworth did not represent the “free and deliberate choice
of the competent electors”.[107]
[107] Bridge v Bowen (1916) 21 CLR 582 at 588.
The application must therefore be dismissed. I will hear argument as to costs. Pursuant to s 139 of the Act, I direct the Registrar of the Supreme Court to arrange for a copy of the Court’s final orders to be sent to the Clerk of the Parliament as soon as possible.
| See Guidelines_for_the_Reproduction_of_Postal_Votes.htm |
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