Chanter v Blackwood (No 2) - [1904] HCA 48

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JOHN MOORE CHANTER

ROBERT OFFICER BLACKWOOD

RIVERINA ELECTION PETITION. Commonwealth Electoral Act 1902 ( Vo. 19 of 1902), secs. 109, 111, 112, 119, 122,134, H

147, 148, 158, 199, 200 Schedule Form K, Form 2-Election-Compliance with Form Q-Mandatory or directory-Initialling ballot-papers upon front - Postal votes-Numbers on counterfoils transposed.-Postal votes not received before March 10, 11, close of poll- Postal votes given by marksmenJurisdiction of Court to inquire how voter has voted-Secrecy of ballot-Declaring election void-Costs on higher

A substantial compliance with Form Q in the Schedule to the Common- wealth Electoral Act 1902 is sufficient to entitle a voter absent from the polling place for which he is enrolled to vote at another polling place within the Division.

The provision in sec. 134 that the initials of the presiding officer shall be upon the backs of ballot-papers is directory only.

Held, therefore, that ballot-papers having the initials upon their faces, but such a position that when the papers were folded as required by sec. 147 the initials could be seen by the presiding officer, were not thereby invalidated.

The mere fact that the number on the counterfoil to a postal ballot-paper does not correspond with the number on the application is not necessarily of itself

The effect of sec. 119 is that postal votes not received by the Returning Officer at the close of the poll are invalid, even though they may have then been received by an Assistant Returning Officer.

It is mandatory that a person who wishes to vote by post shall sign his name to the application and also to the counterfoil.

Held, therefore, that a marksman is not entitled to vote by post. Effect of various markings of ballot-papers considered and decided. The High Court has no jurisdiction to inquire for which candidate a voter has voted, and therefore cannot direct a scrutiny for determining such a question.

1 CLR 122

If at an election the number of persons not entitled to vote who have been allowed to vote, or of persons entitled to vote who have been prevented from voting, or of both, is greater than the difference between the number of votes cast for the candidate declared by the Returning Officer to have been elected and that of votes cast for the candidate declared to have the next highest number of votes, (No. 2).

Application for costs on higher scale refused.

HEARING of Election Petition. On the hearing of a petition by Henry Moore Chanter against the return of Robert Officer Blackwood at an election for the House of Representatives for the Electoral Division of Riverina certain questions were referred to the Full Court by Griffith, C.J. (ante, p. 39). The result of the answers to those questions was that the petitioner had a majority of the votes.

Upon the matter again coming before Griffitle, C.J., a recount of the votes was, on the application of the respondent, ordered to be taken before the Deputy Registrar

The Report…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1904] HCA 48
Decision Date: 13 April 1904

CaseChat Overview and Summary

Chanter (the petitioner) challenged the validity of the election of Blackwood (the respondent) as a member of the House of Representatives for the electorate of Riverina. The dispute concerned alleged irregularities in the conduct of the election, particularly in relation to postal votes and the marking of ballot papers. The matter came before the High Court of Australia.

The High Court was required to determine several key legal issues. These included whether the returning officer's failure to initial ballot papers on the front, as prescribed by Schedule Form Q of the *Commonwealth Electoral Act 1902*, rendered those ballot papers invalid. The court also had to consider the effect of numbers on the counterfoils of postal votes being transposed, whether postal votes received after the close of the poll should be counted, and the validity of postal votes cast by marksmen. Furthermore, the court's jurisdiction to inquire into how a voter had cast their vote, and the implications for the secrecy of the ballot, were central to the determination.

Griffith, C.J. reasoned that the provisions of the *Commonwealth Electoral Act 1902* relating to the marking of ballot papers, including the requirement for initialling on the front, were mandatory. His Honour held that a failure to comply with these mandatory provisions, such as the returning officer not initialling the ballot papers on the front, meant that those ballot papers could not be considered validly cast. The Chief Justice also found that postal votes received after the close of the poll were invalid. The court's jurisdiction to inquire into how a voter had voted was limited by the principles of the secrecy of the ballot, and the court would not permit such an inquiry unless it was strictly necessary for the determination of a disputed election.

The High Court declared the election void.

Orders