Kean v Kerby

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.