Parliamentary Election (Commonwealth)-Elector prevented from voting-Official
error-Error affecting result of election-Intention of voter to vote for particular candidate-Evidence--Electora roll-Name improperly omitted-Right to vote -Ballot-papers-Method of marking-Identification marks - Mandatory or directory provisionsCommonwealth Electoral Act 1918-1919 (No. 27 of 1918 -No. 31 of 1919), secs. 39, 42, 121, 124, 133, 136, 185, 190, 194, 217, and Schedule, Form F--Electoral and Referendum Regulations 1918 (Statutory Rules 1919, No. 57-No. 260), regs. 52, 59, 61, 83A, and Schedule, Form 31.
(5) The requirements of sec. 124 and regs. 61 and 83A of the Electoral and Referendum Regulations 1918 thereunder and of sec. 133, as to the method of marking ballot-papers, are mandatory.
(6) Where an absent voter's ballot-paper which is handed to a voter does not contain the name of any candidate, the mere fact that the voter himself writes in the name of the candidate for whom he wishes to vote does not render the ballot-paper informal under reg. 61 (1) (e).
(7) Where the intention is clear, doubtful questions of form should be (8) The test as to identification marks as stated by Channell J. in the Exeter Case, 6 O'M. &H., 231, approved, and followed.
(9) Effect of various markings of ballot-papers considered and decided.
HEARING of election petition.
At an election for the House of Representatives for the Electoral Division of Ballarat, in the State of Victoria, held on 13th December 1919, there were two candidates, Edwin Thomas John Kerby and David Charles McGrath, the former of whom was declared to have been elected.
A petition was subsequently filed by John Kean praying that the respondent Kerby be declared not to have been duly elected and that McGrath be declared to have been duly elected, or, alternatively, that the election be declared to have been absolutely void.
The petition came on for hearing before Isaacs J., sitting as the Court of Disputed Returns under sec. 183 of the Commonwealth Electoral Act 1918-1919.
The material facts appear in the judgment hereunder. Ryan K.C., for the petitioner. Lowe, for the respondent.
ISAACS J. read the following judgment -This is a petition under sec. 183 of the Commonwealth Electoral Act 1918-1919, by John Kean, disputing the validity of the return of Edwin Thomas John Kerby as a lawfully elected member of the House of Representatives,
OF AUSTRALIA. at the election which took place on 13th December 1919, and, alternatively, disputing the validity of the election itself. The formal requirements of secs. 185 and 186 were proved to have been complied with.
The material facts of the case itself are as follows -On 13th December 1919 a general election took place for the House of Representatives. For the Electoral Division of Ballarat there were two candidates-the respondent, Edwin Thomas John Kerby, and David Charles McGrath. The final official number of votes allotted to the candidates were, Kerby, 13,569, and McGrath, 13,568, the former being returned as member on a majority of…
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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AGLC
Kean v Kerby [1920] HCA 35
Case
[1920] HCA 35
Decision Date
CaseChat Overview and Summary
The case of *Kean v Kerby* concerned an election petition filed by John Kean challenging the return of Edwin Thomas John Kerby as the Member for the Electoral Division of Ballarat in the House of Representatives. The election had been declared for Kerby by a margin of only one vote. Kean sought a declaration that Kerby was not duly elected and that David Charles McGrath should have been declared elected, or alternatively, that the entire election be declared void. The petition was heard by Isaacs J. sitting as the Court of Disputed Returns.
The central legal issues before the Court were manifold, including the validity of postal votes, the interpretation and application of section 121 of the *Commonwealth Electoral Act 1918-1919* concerning voting by persons whose names were omitted from electoral rolls due to official error, the proper method of marking ballot papers under sections 124 and 133 of the Act and relevant regulations, and the admissibility of evidence regarding the intention of electors who were prevented from voting due to official mistakes. The Court also had to determine whether certain provisions of the Act and regulations regarding ballot marking were mandatory or directory, and the effect of identification marks on ballot papers.
Isaacs J. reasoned that the provisions concerning the method of marking ballot papers were mandatory, as voting by ballot is intended to be secret and these provisions are designed to prevent identification. However, the Court held that where an absent voter's ballot paper did not contain the names of any candidates, the voter writing in the name of their preferred candidate did not render the ballot informal under regulation 61(1)(e), as the intention was clear and the mark was not for identification. The Court adopted the principle that doubtful questions of form should be resolved in favour of the voter's clear intention, particularly when official error had occurred. The Court also affirmed that evidence of an elector's intention is admissible when they have been prevented from voting due to official error, as the secrecy of the ballot is a means to an end – a free election – and should not be used to defeat the franchise itself. The Court found numerous instances of official error, including the wrongful refusal of votes to qualified electors.
Ultimately, Isaacs J. declared that Edwin Thomas John Kerby was not duly elected for Ballarat. This decision was based on the cumulative effect of official errors that were proven to have affected the result of the election, including the omission of a candidate's surname from a ballot paper which, but for that error, would have resulted in an equal number of votes and potentially a different outcome.