Fenlon v Radke & Electoral Commissioner of Queensland
[1995] QSC 292
•21 November 1995
IN THE SUPREME COURT
OF QUEENSLAND
SITTING AS THE COURT OF DISPUTED RETURNS
Pet. No. 15 of 1995
[Fenlon v Radke & Electoral Commissioner of Queensland]
IN THE MATTER of the Electoral Act 1992
- and -
IN THE MATTER of The election of one member of the Legislative Assembly for the electoral district of Greenslopes in the State of Queensland
BETWEEN: GARY BERNARD FENLON
Petitioner
AND: TED RADKE
First Respondent
AND: THE ELECTORAL COMMISSIONER OF QUEENSLAND
Second Respondent
REASONS FOR JUDGMENT - B W AMBROSE J
Judgment delivered 21/11/1995
CATCHWORDS: ELECTORAL ACT 1992 - Acts Interpretation Act 1954 - statutory requirements whether mandatory or directory - common law of elections - whether election held substantially in accord with the requirements of the Electoral Act.
Counsel:J. A. Jerrard Q.C. with him K Carmody for the Petitioner
I.D.F. Callinan Q.C. with him P.A. Hastie & P.J. Dunning for the First Respondent
C.E.K. Hampson Q.C. with him R.M. Derrington for the Second Respondent
Solicitors:Goss Downey Carne for the Petitioner
Prentice Solicitors for the First Respondent
Minter Ellison for the Second Respondent
Hearing Date: 13 and 14 November 1995
IN THE SUPREME COURT
OF QUEENSLAND
SITTING AS THE COURT OF DISPUTED RETURNS
Pet. No. 15 of 1995
IN THE MATTER of the Electoral Act 1992
- and -
IN THE MATTER of The election of one member of the Legislative Assembly for the electoral district of Greenslopes in the State of Queensland
BETWEEN: GARY BERNARD FENLON
Petitioner
AND: TED RADKE
First Respondent
AND: THE ELECTORAL COMMISSIONER OF QUEENSLAND
Second Respondent
REASONS FOR JUDGMENT - B W AMBROSE J
Judgment delivered 21/11/1995
This is an application by the respondents for the preliminary determination of points of law arising on the petition disputing the 1995 election for Greenslopes electoral district and the affidavits in support.
There are significant disputes of fact between the petitioner and the respondents concerning the manner in which certain votes cast in the election were counted. There is a good deal of conflicting affidavit material. The petitioner proposes to cross-examine the deponents of various affidavits filed on behalf of the respondents and the respondents propose to cross-examine the deponents of various affidavits filed to support the petition.
It is estimated that perhaps two or three days will be taken to complete that cross‑examination.
It is contended by the respondents that even if all the facts relied upon by the petitioner to dispute the election of the first respondent are established, as a matter of statutory construction the Electoral Act 1992 (Q), upon those facts, will not support the grant of relief sought by the petitioner, which is the ordering of a new election.
The respondents application is in the nature of a demurer or preliminary objection on a point of law. For the purposes of the application, the respondents ask that I assume that the petitioner will be completely successful in establishing the facts upon which he relies. Stated shortly, both respondents concede for the purpose of legal argument only that in the course of counting 3084 declaration votes it was possible for scrutineers to identify how those voters voted. The evidence of the petitioner does not show that any scrutineer did identify how any of those voters did vote. Of course the respondents' concession is made only for the purpose of this preliminary application and it is clear that should they fail on this application, the deponents to various affidavits will be cross-examined and there will be a hearing to determine which, if any, of the facts asserted by the petitioner have been established.
At the outset it is convenient to state relevant parts of the return of the voting statistics for the Greenslopes election which is disputed.
That return contains various matters and statistics relating to the votes cast and counted for Greenslopes. For the purposes of this argument it is sufficient to extract only the following statements:
There were two candidates for the election - the petitioner and the first respondent
There were a total of 19593 votes cast in the election.
Votes cast by electors at polling booths totalled 16443 votes.
Votes cast by electors other than those inserting their marked ballot papers in sealed ballot boxes at various voting booths in the electorate which, for the purpose of convenience upon this application have been described as "declaration votes" (although a little inaccurately) totalled 3084 votes.
Of the votes cast, both in polling booths and by declaration votes, there were 420 informal votes.
The return asserts that all told therefore there were 19173 "valid" or formal votes of which the petitioner received 9566 and the first respondent received 9607.
It is the contention of the petitioner that by reason of failure of officers of the second respondent to comply with statutory requirements of the Electoral Act in the manner of counting declaration votes, all 3084 of the declaration votes stated to be "valid" votes were in law invalid votes and so ought not to have been counted and returned as "valid" votes.
If the petitioner is correct in this contention then a correct return should show informal votes totalling 3504 votes instead of 420 votes. The petitioner should then be shown to have received 7946 "valid" votes and the first respondent to have received 8143 "valid" votes.
It is clear therefore that whether or not the petitioner succeeds in establishing the facts relied upon in his petition and whether or not all 3084 declaration votes are declared invalid, leading to a correction of the disputed return, the first respondent will have a majority of the valid votes cast - indeed if the 3084 declaration votes are invalid he will have an increased majority.
It is the contention of the petitioner, however, that the failure of the second respondent's officers to strictly observe the procedural requirements of the Electoral Act for counting declaration votes has the effect that there has been no proper election conducted in the Greenslopes electorate and that the errors of the officers of the second respondent have disenfranchised all the declaration voters, thus depriving approximately 15.7% of the electors in the Greenslopes electorate of their statutory right to vote effectively in the election. It is contended that this failure makes it necessary to conduct a fresh election.
It is further contended by the petitioner that under the Electoral Act it is not permissible to conclude that in any event the petitioner received a greater number of the allegedly informal 3084 votes than did the first respondent and that therefore any error or omission on the part of the officers of the second respondent which might be established had no effect on the outcome of the election. It is said that it is impossible to draw this conclusion because the terms of the Electoral Act expressly forbid any regard to be paid to which of the candidates the votes rendered informal or invalid by their manner of counting were directed. It is said that this follows because where a voter is "prevented from voting" one may not call evidence to show how that voter would have voted had he or she not been prevented from voting. The petitioner contends that upon its proper construction the Electoral Act makes it impermissible to determine what effect on the outcome of the election the action of the officers of the Commission had in failing to count the declaration votes in the manner required. It is contended that it is permissible only to look at the number of declaration votes rendered invalid; where 15.7% of the voters are deprived of an effective vote by virtue of breach of duty on the part of the returning officers, there has been a substantial failure to comply with the requirements of the Act. Consequently, it is said, a new election must be ordered.
For the respondents it is contended that upon the assumption that there was a failure on the part of officers of the second respondent to comply strictly with the procedures required for the counting of declaration votes (which is in dispute on the material) there is no express provision in the Act (and nothing can be implied from its express provisions) that a declaration vote on its face, formal and valid at the time it reaches the returning officer for counting can be rendered invalid and informal by the manner in which it is counted. It is said that the legislature could not have intended such a bizarre consequence of a failure of a returning officer to comply strictly with each of the procedural requirements for counting votes validly cast and placed before that officer only for the purpose of counting. It is said that such a consequence would be to permit voters who had done everything required of them to cast a valid vote to be disenfranchised by the failure of the person counting the votes to count them according to the prescribed procedure.
It is contended on behalf of the respondents that even accepting for the purpose of argument that the declaration votes were not counted strictly in accordance with the statutory requirements under the Act that fact alone does not render them invalid or informal and therefore the petitioner must fail even if all the facts he asserts are established.
The respondents also contend that even if a failure of a returning officer to count declaration votes strictly in accordance with procedural requirements did have the effect of rendering invalid and informal what would otherwise have been valid and formal votes, there is nothing in the Act which makes it impermissible to look at the final return to determine how the allegedly "informal" declaration votes were in fact allotted between the two candidates. It is contended that it is far fetched to argue that having become "informal" by virtue of the failure of the returning officer to count them properly it is nevertheless impermissible to look at the disputed return to see how those informal votes were allotted between the candidates - as directed by the declaration voters - for the purpose of determining whether the error or omission on the part of the returning officers had any effect on the outcome of the election.
I have stated in brief outline the nature of the contentions of the petitioner and the respondents and will now turn to deal with them in more detail. It is convenient to deal with the petitioner's principal legal contentions separately. They may be stated briefly as follows:
The failure of the officers of the second respondent to comply with the procedural requirements of the Act in counting the declaration votes amounted to such a substantial departure from the law contained in the Act governing the conduct of elections that there was not a proper election held in Greenslopes at all and therefore a new election ought be ordered. It is unnecessary to look at the content of the final return of voting statistics for that electorate, except perhaps to the extent that one may consider the 3084 declaration votes as a percentage of 19593 votes counted in total which amounts to about 15.7%, which is an unacceptable percentage of voters to be disenfranchised.
In the alternative, by its express terms the Electoral Act renders the 3084 declaration votes informal and invalid by reason of the failure of the officers of the second respondent to count them properly. It was no fault of the voters, who complied with all the statutory requirements to vote effectively, that their votes became informal. In effect, it was the errors or omissions of the officers of the second respondent which disenfranchised them. One can look at the percentage of voters disenfranchised by the errors or omissions of the second respondent's officers and that is a sufficient justification to order that a new election be held. An argument necessarily ancillary to this contention is that under the express terms of the Electoral Act it is impermissible to have regard to how those informal votes were wrongly allotted to each of the candidates, because if not treated as votes they can only indicate the intention of each of the voters concerned and under the terms of the Act it is impermissible to pay regard to their intentions. It is necessary therefore to close one's eyes to the way in which the voters indicated their intention to vote when they filled out their potentially valid votes, because they became invalid after they reached the stage of being counted by returning officers.
The first of the petitioner's contentions is said to find support in the "common law of elections" the genesis of which is to be found in Woodward v. Sarsons and Sadler (1875) LR 10 CP 733. The judgment of the court was delivered by Lord Coleridge CJ and at p.744 the following observations were made which have been described as a statement of the "common law of elections":
"As to the second, i.e. that the election was not really conducted under the subsisting election laws at all, we think, though there was an election in the sense of there having been a selection by the will of the constituency, that the question must in like manner be, whether the departure from the prescribed method of election is so great that the tribunal is satisfied, as matter of fact, that the election was not an election under the existing law. It is not enough to say that great mistakes were made in carrying out the election under those laws: it is necessary to be able to say that, either wilfully or erroneously, the election was not carried out under those laws, but under some other method. For instance, if, during the time of the old laws, with the consent of a whole constituency, a candidate had been selected by tossing up a coin, or by the result of a horse-race, it might well have been said that the electors had exercised their free will, but it should have been held that they had exercised it under a law of their own invention, and not under the existing election laws, which prescribed an election by voting. So now, when the election is to be an election by ballot, if, either wilfully or erroneously, a whole constituency were to vote, but not by ballot at all, the election would be a free exercise of their will, but it would not be an election by ballot, and therefore not an election under the existing election law. But, if in the opinion of the tribunal the election was substantially an election by ballot, then no mistakes or misconduct, however great, in the use of the machinery of the Ballot Act, could justify the tribunal in declaring the election void by the common law of Parliament."
Under the terms of the Ballot Act 1872, the effect of which the court was considering, it was expressly provided that an elector on receiving a ballot paper should mark it secretly and fold it up so as to conceal the vote and then put it folded up into the ballot box.
It was established that at one of the polling stations the presiding officer had failed to comply with some of the rules applicable when he was required to assist voters unable to read and hence put at risk the secrecy of the way in which those voters voted. In fact for reasons which it is unnecessary to examine, those votes were not counted by the returning officer and it was contended that the admitted error of the presiding officer, which on the facts did not affect the result, did render the election void at common law (and for that matter under the Ballot Act 1872).
At p.745, after having stated the common law rule, Lord Coleridge continued:"If the rule be as thus stated, then the next question is, whether we can say, upon the facts disclosed in the present case, that a majority of the electors have been, or that there is reasonable ground to believe that a majority may have been, by misconduct or error of the presiding officers, prevented from recording their votes with effect. Now, there is no evidence, as it seems to us, that any elector was prevented from recording his vote, or induced not to record it, by what occurred. All who went to vote at the polling station No. 130 did vote. It was argued that a report of the error being there perpetrated might have prevented others from going to vote; but this was answered by showing that the case finds that no one noticed the error until after the election was over. The result is, that all the electors who desired to vote did vote. And, as to the votes which were given, and which are objected to, it is not known, except as to the twenty, for whom each of them was in fact given. In this case, therefore, when the objections to the particular votes have been determined, the effect of the mistakes on the result of the election will be exactly known. If so, there is no room for speculation or doubt as to whether a majority may or may not have been prevented from voting with effect. Those who did not vote were not prevented by the errors which occurred; it will be seen how the majority of those who did vote was affected by such errors. In this case, therefore, it becomes necessary, not by way of scrutiny, but in order to determine whether the majority has been prevented from voting with effect, to determine upon the validity or invalidity of the votes which were given, and to which objection has been taken."
The court then went on to construe the terms of the Ballot Act 1872 and in particular to determine whether the rules breached by the presiding officers in receiving votes from persons who could not read were breaches of "absolute" enactments or enactments which were merely "directory". It was concluded upon the terms of that legislation that the enactments breached by the returning officers were to be categorised as "directory" and therefore the breaches did not have the effect of rendering the whole election void.
In Bridge v. Bowen (1916) 21 CLR 582 the High Court considered whether an alderman had been "unduly elected" within the terms of the Sydney Corporation Act 1902, where it was shown that votes of impersonators of electors had been counted and that the number of those votes was greater than the majority of votes enjoyed by the elected alderman over an unsuccessful candidate.
It was held by a majority that upon a proper construction of the Act it could not be said that the election was void under the common law rule referred to in Woodward v. Sarsons.
Griffiths CJ, (one of the majority judges) at p.587, considered what the common law prescribed to be the consequence of the events canvassed before the court when the electoral statute itself was silent on the point. At p.588 he observed:"So far as relevant to the present case, this common law may be summed up in one sentence, thus:- If, having regard to the circumstances attendant upon an election, it appears that there is good ground for believing that the formal result does not represent the free and deliberate choice of the competent electors, the election may be declared void.
It will be found on consideration that this rule is the foundation and the only foundation, for the power always assumed to exist of avoiding an election."
At p.600 the learned Chief Justice said:
"It is clear, therefore, that it has been the settled law of New South Wales, at any rate since 1887, that the intrusion into a municipal election (including an election of aldermen for the City of Sydney) of a number of unqualified persons sufficient to turn the scale invalidates the election."
The majority judgment of the court, while not in disagreement with the statement of the common law of elections by the learned Chief Justice, concluded as a matter of statutory construction that the intrusion of impersonators in the election did not have the effect of rendering that election void. At p.613 Isaacs J said:
"The one circumstance that I regard as dominant in this case is this, that the election was entirely a statutory proceeding, with statutory directions and statutory consequences."
At p.616 Isaacs J dealt with Woodward v. Sarsons (supra) and observed:
"This case has been greatly canvassed, and appears to have led to some misunderstanding. It is of immense importance to understand it properly, because its doctrines apply to all classes of elections all over Australia. It was a case of municipal election, but that made no difference. The first question the Court formulated was (L.R. 10 C.P., at p.743) : 'What is the true statement of the rule under which an election may be avoided by the common law of Parliament?' The Court answered that question by saying an election is to be declared void by the common law, if the tribunal is satisfied as a matter of fact either (2 O'M. & H., 152, at p.157) that there was no real electing at all or (L.R. 10 C.P., 733) that the election was not really conducted under the subsisting election laws. Those were the only two grounds mentioned by the Court for so avoiding the election ...".
At p.617 his Honour dealt with the second matter:
"The Court proceeded (L.R. 10 C.P., at p.744) to deal with the second head, viz., 'That the election was not really conducted under the subsisting election laws at all.' That has a nearer approach to the present case, but yet does not include it. Still, even as to this second head, the Court states the law in terms which appear to me to be fatal to the respondent's contention. The judgment declares that under this second head the question must be whether the departure from the prescribed method of election is great enough to deprive the election of its character as an election under the existing law."
In Turner v. King [1992] Qd R 307, the Full Court considered an argument that an election should be held to be void because of deficiencies in security measures taken to protect ballot papers during a recount by a returning officer and indeed during a recount by the registrar of the court. Macrossan CJ, in the course of rejecting the petitioner's contention, observed at 309 with respect to the common law rule:
"Nowadays, when statutory control of the mode of conducting elections is so elaborately established, I am disposed to think that the second category identified in Woodward v. Sarsons as regulated by common law principles has become less important. ...
With the tendency now for statutes to prescribe in detail how electoral procedure will be regulated, the relevant question will not be likely to be whether a departure from the course of an election has been so great as not really to amount to an election at all (in Woodward v. Sarsons). It will rather be whether the specific and detailed requirements of the statute have been followed and if not what is the consequence which the statute requires shall follow. Accordingly in this area a task of statutory construction may be substituted for an application of a broad common law principle."
The observations of de Jersey J at 319 indicate that his Honour was obviously of the view that the question in that case was whether any breach of the requirements of the Election Act involved breach of a mandatory requirement or one which was merely directory. Derrington J at p.314-316 adopted the same approach.
This approach is in conformity with that of the majority of the High Court in Clayton v. Heffron (1960) 105 CLR 214 at 247 and also with the view of Gibbs J in Victoria v. The Commonwealth and Connor (1975) 134 CLR 81 where he observed at p.161-162:"It was said in Woodward v. Sarsons (1875) L.R. 10 C.P. 733, at pp. 746‑747, and has often been repeated in judgments of great authority, that 'the general rule is, that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially'. I must, with respect, confess that I find it difficult to accept that this is a correct statement of the distinction between mandatory or imperative and directory enactments; I would be inclined to prefer the statement in Clayton v. Heffron, where it was said ... :
'Lawyers speak of statutory provisions as imperative when any want of strict compliance with them means that the resulting act, be it a statute, a contract or what you will, is null and void. They speak of them as directory when they mean that although they are legal requirements which it is unlawful to disregard, yet failure to fulfil them does not mean that the resulting act is wholly ineffective, is null and void'."
A great many other authorities were cited by the petitioner. However, they seem to involve merely the application of the principles to which I have referred to particular factual situations viewed in the context of the particular electoral legislation there applicable. It seems unhelpful to embark on a long and detailed consideration of those cases.
I will now turn to the terms of the Electoral Act 1992 to determine whether breaches of the statutory requirements for the counting of declaration votes asserted in the petitioner's material constitute breaches of mandatory requirements of the Act or breaches of requirements which are merely directory in nature.
Unless as a matter of statutory construction the breaches alleged are of mandatory requirements, the first contention of the petitioner must fail. Derrington J in Turner v. King expressed the test in slightly different terms to be that unless a breach of a statutory requirement under the Electoral Act "may have produced a false result" there is no basis to invalidate an election.
It is contended that the returning officers processing the declaration votes failed to comply with s.114(1)(c) of the Electoral Act. It is said that this requirement is a mandatory one and the extent of the second respondent's departure from it is demonstrated by the fact that there were 3084 declaration votes handled by officers of the second respondent contrary to it.
It may be accepted that the object of both ss.114(1)(c) and 116(3)(a) is the protection of the secrecy of the votes cast by voters in an election held under the Act. It does not follow from that fact alone that either provision in the absence of any indication of legislative intent ought be construed as imposing a mandatory direction. I would adopt with respect the approach of Wright J in the Ontario Supreme Court in Re North Huron Election (1926) 1 DLR 590. That was a case where votes were not counted because of a breach of a requirement of relevant electoral legislation which was designed to protect the secrecy of votes cast in a dominion election. He said at p.596:"I think the proper principle to be followed in dealing with this application is that enunciated by the late Sir William Meredith, when Chief Justice of the Common Pleas in Sealey v. Smith, Re Wentworth Election (1905) 9 O.L.R. 201. At p. 204 he states as follows: - 'On principle, it appears to me most unjust that an elector who has complied with every requirement of the law as to the manner in which he shall evidence his will as to the choice of a member of Parliament, should be subjected to have his vote destroyed by the wrongful or improper act of an election officer in dealing with his ballot-paper, and the Court is bound, I think, if possible, to avoid construing such a provision so as to lead to that result."
At p. 600 he continued:
"The law would indeed be impotent if in a case like the present, where 342 voters were deprived of their franchise, no relief could be had. Where the voters have done everything in their power to register their votes by way of ballot in the proper form, every reasonable construction should be placed on the statute to give effect to the expressed will of the voters. To do otherwise would amount to a declaration that, however perfectly the ballot might be marked, the deputy returning officers, either wilfully or carelessly and negligently, might destroy the ballot and prevent the vote being counted."
It is contended that as a consequence of the failure to comply with the counting/processing requirements of the Act, there were two different methods of election adopted - one for ordinary voters on the assumption that the requirements of the Act designed to ensure secrecy of their voting were complied with and a second for declaration voters whose secrecy of voting was put at risk (although not in fact compromised) because of non compliance with the mandatory requirements of s.114(1)(c) of the Act.
Upon the facts of this case it is not asserted that the secrecy of the votes was breached. It is asserted merely that there was a potential for provisions of the Act designed to protect secrecy to be rendered ineffective. All the facts asserted by the petitioner are to the effect that in fact there was no breach of secrecy. However, that fact is not a relevant consideration in determining whether a specific statutory provision designed to enhance the secrecy of the votes made by declaration voters is mandatory or only directory.
It may of course be relevant if one adopts the approach of Derrington J in Turner v. King at pp.316-317.
Part 6 of the Electoral Act is headed "Elections". Division 1 of Part 6 is headed "Calling of elections"; Division 2 is headed "Nomination of candidates for election"; Division 3 is headed "Arrangements for elections"; Division 4 is headed "Who may vote". Each of those Divisions contains provisions of the sort which might aptly be categorised under the heading as dealing with separate aspects of the election process.
Division 5 of Part 6 of the Electoral Act contains provisions relating to how votes must be cast under the Act and is headed "How voting takes place".
Subdivision A refers to ordinary voting which involves persons going to electoral booths, marking ballot papers and inserting them into sealed ballot boxes.
Subdivision B relates to declaration voting, where persons are able to mark ballot papers and put them in sealed envelopes which are delivered to returning officers for the purpose of counting at a time when ordinary ballot papers are delivered from polling booths.
Subdivision C is headed "Marking of Ballot Papers". This subdivision relates to the marking of all ballot papers whether completed by "ordinary" voters or "declaration" voters.
The heading to s.114 is "Formal and informal ballot papers".
Section 114 in Subdivision C provides:"(1) Subject to this section, for a ballot paper to have effect to indicate a vote for the purposes of this Act -"
(a) ...
(b) ...(c)the ballot paper must have been put into a ballot box as required by this Act; and
(d)if the ballot paper was put into a declaration envelope as required by this Act - the envelope must have been signed, and the signature must have been witnessed, as required by this Act."
...
(4) If a ballot paper has effect to indicate a vote, it is a formal ballot paper.
(5) If a ballot paper does not have effect to indicate a vote, it is an informal ballot paper."
On its face, in my view s.114(1) is not expressed to impose any requirement, whether mandatory or otherwise upon a returning officer who receives a declaration vote for the purpose of counting it. However, it is contended for the petitioner that it does do so. It is the contention of the respondents that Subdivision C has nothing to do with the requirements of the Act relating to the counting or processing of votes. Indeed it is said that Division 5 clearly relates to how voting takes place as indicated by the heading of the division and relates to what must be done to produce valid votes for counting. Once those votes have been produced i.e. eligible voters have indicated according to law the candidate of their choice upon ballot papers and either put them in the ballot box at a polling booth or in a declaration envelope and given them to somebody whose function it is to see that they are held for counting with all the ordinary votes, then one turns to Division 6 of the Act to determine what are the prescribed requirements for counting.
Sections 14(1) and (2) of the Acts Interpretation Act 1954 provide that the heading to a division, subdivision, section, subsection or another provision of an Act is part of that Act.
Division 6 of Part 6 is headed "Counting of Votes". Section 115 in Division 6 provides: "Votes at an election are to be counted in accordance with this Division."
The heading to s.116 is "Preliminary processing of declaration envelopes and ballot papers".
Section 116(1) provides that member of the Commission's staff must examine all declaration envelopes to determine whether ballot papers in them are to be accepted for counting.
Section 116(2) lists the things of which the person examining the particulars attached to the declaration envelope must be satisfied before determining whether to accept the ballot paper within the envelope.
Section 116(3) then provides:"(3) If the ballot paper is accepted, the person must take it out of the envelope and, without unfolding it or allowing another person to unfold it, put it in -
(a)if the envelope was received by the returning officer and not sent to the Commission to be dealt with under this section - a sealed ballot box; ...".
Subsection (4) then provides:
"(4) If a declaration envelope received by a returning officer is for a different electoral district, it must be sent to the Commission or the appropriate returning officer without being examined under this section."
Subsection (5) provides:
"(5) Members of the Commission's staff must also seal up in separate parcels, and keep, all unopened envelopes and all opened envelopes."
No other provision in Division 6 of the Act relating to the counting of votes has been canvassed with a view to demonstrating that a breach of s.116(3)(a) involves the breach of a mandatory requirement under the Act. This is not surprising because that section, looked at in the context of the provisions of Division 6 generally relating to the counting of votes does not on its face seem to impose requirements of a mandatory kind, breach of which would render the election void. Undoubtedly there is a clear direction to a returning officer who determines that a ballot paper in a declaration envelope is acceptable to take that ballot paper out of the declaration envelope and without unfolding it or allowing another person to unfold it, to put it in a sealed box. However, there is no express provision similar in terms or effect to ss.114(1)(c) and (5) in Division 5.
The obvious legislative intent discernible in Divisions 5 and 6 is to secure the secrecy of the vote because the name, address, etc of the declarant will appear on the slip attached to the declaration envelope. Obviously if somebody took the ballot paper out of the declaration envelope, opened it up and observed the vote it recorded and at about the same time looked at the name and address of the declarant, that person and any other person able to look at those documents and read them would be able to determine how that particular declarant voted. The scheme of the Act is to have an officer determine whether the declaration votes are acceptable without looking at the ballot papers and having determined that, put the ballot papers in a sealed box from which they will later be taken and assessed to ascertain whether on their face they are formal or informal. If they are determined to be formal they will then be then be counted. Once accepted and placed in a sealed box they will be indistinguishable from ballot papers placed in a sealed box as ordinary votes.
All persons present when the declaration votes were accepted and counted in this case were obliged to keep secret any knowledge they may have gained as to how any voter had voted. This applied both to officers of the second respondent and to all scrutineers present at the counting.
The reason why the petitioner relies upon an alleged breach of the requirement imposed on returning officers under s.114(1)(c) in Subdivision C of Division 5 which, on its face, does not refer to counting at all, but to the marking of papers and perhaps their receipt at a polling booth, is of course to be found in the provisions of ss.114(4) and (5) of the Act. Under s.114(1), at the time of marking the ballot paper, s.114(1)(c) must be complied with for the vote to have effect. If it does not have effect, it becomes an informal ballot paper.
There is no similar provision to be found in Division 6 relating to the counting of votes. In my view, there is nothing in s.116 to suggest that a failure to comply with the requirements of s.116(3) is to have the same effect as a failure to comply with s.114(1)(c), which by express enactment has the effect that the vote will be an informal one. The express requirements of s.114(1)(c) and those in s.116(3)(a) seem in almost identical terms. If the obligation imposed on returning officers under s.114(1)(c) applies in the circumstances to which Division 6 relates it would seem that the obligation imposed by s.116(3)(a) would add nothing and in effect be tautologous.
Had the legislature so intended, it could easily have drawn s.116 in explicit terms to achieve this result as it did when drawing s.114.
It seems quite unlikely that legislation designed to protect the electoral franchise and secure the fair and proper election of a candidate whom the majority of voters in an electorate prefers to other candidates, should expressly provide that some breach of a statutory requirement relating to the counting of formal votes should render them informal. Such a provision would enable returning officers, whose function is merely to determine what are, and to count valid votes, to render those valid votes invalid and informal by disregarding some statutory requirement as to the manner of counting them. In my view, such a result would be bizarre and is not one easily attributable to a legislative intent to be implied from the express terms of the Electoral Act.
In my judgment, s.114(1)(c) of the Electoral Act has no application to the facts relied upon by the petitioner.
On the other hand, s.116(3) does have direct application to the facts relied upon by the petitioner.
On the facts asserted by the petitioner, which I must assume to be correct for the purpose of determining the legal points in issue, there was a breach of s.116(3) by officers of the Commissioner who, after examination of the material attached to the declaration envelopes, accepted the ballot papers within the envelopes for counting, but failed strictly to comply with the requirements of s.116(3)(a) of the Act, because they did not take each of the ballot papers out of its envelope and without unfolding it or allowing another person to unfold it, put it in a sealed ballot box, from which it would subsequently be taken and counted pursuant to the provisions of ss.118 and 119 of the Act - also to be found in Division 6.
In my judgment, however, having regard to the legal authorities I have already canvassed, the requirements of s.116(3) are not mandatory or absolute. A failure to comply with those provisions in the course of counting declaration votes does not render invalid and informal votes which would be otherwise valid and formal. It cannot be said that the departure from the statutory procedures required of returning officers counting declaration votes, as asserted by the petitioner, involved so great a departure from the detailed regulatory procedures to be found in the Election Act 1992 for the proper conducting of elections that the election conducted in the Greenslopes electorate, which the petitioner disputes, was not an election validly conducted under the Electoral Act 1992.
It is quite unnecessary to consider what might have been the consequence of a breach of secrecy in the way in which declaration voters did vote. No such breach is alleged. The only fact which could be alleged is that the potential for such a breach was increased by the alleged failure to vigorously comply with the requirements of s.116(3) of the Act.
In my judgment, upon a proper construction of the Electoral Act 1992, the first contention of the petitioner is not sustainable as a matter of law.
The second and alternate contention of the petitioner is closely allied to the first.
The second contention also relies upon the application of s.114(1)(c) to impose upon an officer of the second respondent counting declaration votes a mandatory obligation to put the ballot papers accepted for counting into a sealed ballot box before they are counted. The failure of the returning officer involved in accepting and/or counting declaration votes to comply with s.114(1)(c) would under this contention also result in the declaration vote contained in the ballot paper being rendered informal under ss.114(1) and (5) of the Act.
For reasons I have already given considering the first contention of the petitioner, I reject this proposition of law. In my judgment, upon the facts asserted by the petitioner, the returning officers did fail to comply with the requirements imposed upon them by s.116(3) of the Act. Section 114(1)(c) imposed no requirement upon them.
Implied in both contentions of the petitioner is that the failure of the officers of the second respondent to put ballot papers into sealed ballot boxes after accepting and removing them from declaration envelopes rendered the votes invalid.
Under s.136(2) this Court may make any of the following orders -(a)An order to the effect that the person elected is taken not to have been elected.
(b)An order to the effect that a new election must be held.
(c)An order to the effect that a candidate other than the one elected is taken instead to have been elected.
(d)An order to dismiss or uphold the petition in whole or part.
If one then turns to s.137(1) it is provided:
"137.(1) The Court must not make an order mentioned in section 136(2) because of -
(a)...
(b)an absence or error of, or omission by, any member of the Commission's staff that appears unlikely to have had the effect that the person elected would not have been elected."
It is secondly contended by the petitioner that s.137(1)(b) of the Act has no application.
In addition to contending that the legal consequence of the returning officer's manner of counting declaration votes is a breach of s.114(1)(c) of the Act, in that those declaration votes are rendered invalid and informal pursuant to s.114(5) of the Act, it is argued that s.137(1)(b) can have no application, because the manner of counting the declaration votes "prevented the declaration voters from voting", albeit that but for the officers' failure to place the accepted declaration votes in a sealed box before counting them, they would have been valid votes.
There is obviously some divergence in judicial opinion as to whether a voter can be "prevented from voting" by reason of some event occurring which prevents his vote, valid on its face, being given any effect.
The petitioner as part of his second contention advanced a very technical argument based on observations of Sugarman J in the Court of Disputed Returns in New South Wales in the matter of an election held in the Electoral District of Lismore. The case is Campbell v. Easter in which judgment was delivered on 12 June 1959. The case is apparently not reported in the reports and a copy of the judgment was obtained from the library of the New South Wales Legislative Assembly. That was a case which involved the correction of errors alleged to have been committed by a returning officer rejecting as informal, ballot papers which should have been counted as formal votes. His Honour found that 51 ballot papers were rendered informal because of errors on the part of officers and had therefore been properly rejected.
Section 167 of the Parliamentary Electorates and Elections Act 1912-1952 (N.S.W.) contains the following proviso:"Provided that where any elector was on account of the absence or error or omission by any officer prevented from voting in any election, the Court shall not for the purpose of determining whether the absence or error or omission by the officer did or did not affect the result of the election admit any evidence of the way in which the elector intended to vote in the election."
The terms of the proviso to s.167 of the New South Wales Act are similar to those in s.137(2) of the Electoral Act 1992 (Q). It is not contended by the respondents that the difference in wording between the sections ought really produce a different legislative effect. At p.4 of his judgment, Sugarman J said:
"Prevention from ‘voting' in the election includes, in my opinion, prevention from casting an effective vote on account of some ‘error of or omission by' an officer, and is not limited to such Acts as, for example excluding an elector from the polling booth or refusing to hand him a ballot paper. An elector whose vote, although he is given a ballot paper and marks it, is thrown away on account of some error or omission of an officer, is prevented from voting in the relevant sense. The errors or omissions here in question were in that category and had that effect. The intention of the elector to vote in a particular manner remains evidence by his markings upon the rejected ballot paper. To admit evidence of those markings would contravene the prohibition in the proviso against admitting 'any evidence of the way in which the elector intended to vote in the election'."
His Honour then referred to a number of authorities to support this proposition.
The facts in Campbell v. Easter are clearly distinguishable from those asserted by the petitioner to result in the invalidity of the declaration votes in his case.
It is clear on the petitioner's case and indeed upon his legal arguments that the declaration votes were validly cast by the voters. Moreover those votes would have been effective votes even upon the petitioner's contentions had the manner of their processing required by s.114(c), as it is contended, been complied with. The petitioner's case makes no complaint about the marking or casting of the vote to which the provisions of Subdivision C of the Division 5, and in particular s.114(1), applies. That was the part of the election process, it seems to me, to which the decision in Campbell v. Easter relates.
On the contrary, upon the facts relied upon by the petitioner, it was Division 6 of the Electoral Act relating to the counting of votes which applies in his case.
Upon the facts contained in the disputed return which is in evidence, it is clear that whether the 3084 declaration votes be formal or informal the first respondent will obtain the majority of formal votes cast in the election. Therefore if one may have regard to the outcome of the election if they are not rendered informal by official error or omission it is clear that the error or omission complained of, if established, would have no effect on that outcome.
In the light of my ruling that the alleged errors or omissions of the Commission's officers in counting the declaration votes would not at law have the effect of rendering those potentially valid votes invalid, it is unnecessary to determine whether within the meaning of s.137(2) those declaration voters, if their votes were rendered invalid by an improper handling or counting of them, were "prevented from voting at the election by ... error or omission".
It is thus unnecessary and in my view would be unhelpful to analyse the conflicting judicial views expressed on this point. Because the matter was argued at such length, however, I take the opportunity to express my significant reservations as to whether the views of Sugarman J in Campbell v. Easter (supra) and those of Stark J. in Varty v. Ives (1986) VR 1 at p.10 would have application should the contentions of the petitioner in this case have been well founded so that the votes became invalid in the process of their being counted by reason of the returning officers failing to count them in the manner provided. I should have thought that the legislative intent to be discerned in s.137 is to prevent the voting intention of voters who have not cast a vote which was at any stage a valid vote within the time limited for doing so under the Electoral Act from being proved in this court to support contentions based upon s.137(2) of the Act. The provision of s.137(2) would seem to apply more comfortably to the circumstances within the contemplation of s.138(1) than those relied upon by the petitioner in this case. While there are clearly reasons based upon convenience, reliability and indeed the principle of preservation of the secrecy of voting to explain the exclusion of evidence of voting intention of voters who have never cast a valid vote by reason of a failure of officers of the Commission to observe constraints imposed upon them by Division 5 of the Act, no such reasons were advanced which would justify the rejection of the voting return in a dispute which upon the petitioner's material does not disclose the individual voting intentions of any of the declaration voters but disclose only the return of the counting of declaration votes valid at the time they were cast and which remained valid until on the petitioner's contention they were rendered invalid by the manner in which they were counted. The petitioner's submissions were based only upon the observations in Campbell v. Easter and Varty v. Ives which, in my view, considered in the context of the factual situations to which they were addressed, lend little if any support to their application to the facts asserted by the petitioner in this case.
Because it is unnecessary to do so in this case, I will refrain from embarking upon an analysis of those authorities and other conflicting authorities such as Dunbier v. Mallam (1971) 2 NSWLR 169 and Cleary v. Freeman, an unreported decision of Nagle J delivered on 31 October 1974 in the Supreme Court of New South Wales of Disputed Returns.
In my judgment upon a proper construction of the Electoral Act 1992 the facts asserted by the petitioner cannot at law establish a breach by officers of the second respondent of obligations imposed upon them by s.114(1)(c) of the Act. While the facts asserted by the petitioner would establish breaches of the obligations imposed upon officers of the second respondent under s.116(3), such breaches would not have the legal consequence of rendering invalid and informal the declaration votes counted in a manner contrary to the requirements of s.116(3).
In my judgment upon a proper construction of the Electoral Act 1992, the second contention of the petitioner is not sustainable as a matter of law.
In summary there, upon the preliminary application I make the following rulings of law:
Section 114(1)(c) of the Electoral Act has no application to the facts relied upon by the petitioner. It follows that the 3084 declaration votes referred to in the petition would not be rendered informal, pursuant to s.114(5) of the Act by reason of any of the facts asserted in the petition.
Upon the facts asserted in the petition there was a failure by the officers of the second respondent to comply with the requirements of s.116(3) of the Electoral Act 1992. The failure of the officers of the respondent to comply with s.116(3) of the Act would not render the 3084 declaration votes informal.
The failure of the officers of the second respondent to comply with the requirements of s.116(3) of the Electoral Act would not have the consequence of rendering the Greenslopes election invalid on the ground that there was a departure from the method of election prescribed by the Electoral Act 1992 sufficiently great to deprive that election of its character as an election under that Act.
No failure by the officers of the second respondent to comply with the requirements of the Electoral Act 1992 upon facts asserted in the petition would be sufficient in law to permit a finding of fact that such failures may have produced a false result in the Greenslopes Election.
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