Perkins v Cusack

The case of Perkins v Cusack involved a petition filed by John Arthur Perkins seeking a declaration that John Joseph Cusack was not duly elected as a member of the House of Representatives for the Eden Monaro Electorate in New South Wales, and that Perkins himself should have been declared elected. The petition was heard by Starke J. in the Court of Disputed Returns. One of the primary grounds for the petition was an allegation that a parcel of fifty ballot-papers, initially showing first preferences for Perkins, had been tampered with, with forty-nine ballot-papers being substituted with those favouring Cusack.

The legal issues before the Court were twofold: firstly, whether the allegation of ballot-paper tampering could be proven, and secondly, whether evidence could be admitted to challenge the entitlement to vote of individuals whose names appeared on the electoral roll but whose stated addresses were allegedly outside the electorate. The Court was required to interpret the provisions of the Commonwealth Electoral Act 1918-1928, particularly section 190, which governs the scope of the Court's inquiry, and section 112, which addresses the conditions under which an elector may vote.

Starke J. found that the allegation of ballot-paper tampering was not proven, concluding that while a mistake had likely occurred at the Moss Vale subdivision, the petitioner had failed to establish fraudulent substitution beyond reasonable doubt. Regarding the challenge to the entitlement of voters, the Court held that section 190 of the Act explicitly prohibits inquiry into the correctness of any electoral roll. Furthermore, section 112(3) establishes that electoral rolls are conclusive evidence of a person's right to vote, unless their answers to questions posed by the presiding officer under section 115 demonstrate they are not entitled to vote. As no such evidence was presented, the Court rejected the tendered evidence, deeming it an impermissible challenge to the roll's correctness.

Consequently, the petition was dismissed. The petitioner, John Arthur Perkins, was ordered to pay the costs of the respondent, John Joseph Cusack, and the Chief Electoral Officer. A copy of the Court's order was to be forwarded to the Clerk of the House of Representatives.