Kennedy v Palmer

This case concerned an election petition filed in the High Court of Australia following an election for the House of Representatives in the Electoral Division of Echuca. The petitioner sought a recount of ballot papers, a declaration that the respondent, who had been declared the winner, was not duly elected, and alternatively, a declaration that the petitioner was duly elected or that the election was void. Following a recount, a number of ballot papers were reserved for the Court's decision.

The Court was required to determine two primary legal issues. Firstly, whether a ballot paper was informal if the cross indicating a voter's preference was not placed within the designated square, and secondly, whether a ballot paper was invalidated by marks or writings that might, by possibility, enable a voter to be identified, even in the absence of evidence of an improper practice or plan. The Court also considered the impact of official errors on the validity of ballot papers.

Barton J. applied the principle established in *Chanter v. Blackwood* (No. 1) that the requirement to place a cross within the square on a ballot paper is directory, not mandatory, and that a vote should be counted if the voter's preference is clearly manifested. Regarding identification marks, the Court adopted a liberal construction of section 158(d) of the *Commonwealth Electoral Act 1902*, holding that mere possibility of identification was insufficient to invalidate a vote, and that such marks would only lead to rejection if they would, in the Court's opinion, enable identification. The Court also found that certain ballot papers were rendered informal due to official errors, such as numbering the papers on the back, which contravened the secrecy provisions of the Act.

Ultimately, the Court found that while the petitioner had a majority of the valid votes cast, the respondent had been deprived of a majority due to official errors. However, the Court determined that it could not declare the petitioner elected as the errors had affected the result. Consequently, the election was declared absolutely void under section 205(III.) of the *Commonwealth Electoral Act*, and a new election was ordered. No order was made as to the costs of the petition.