Re Berrill's Petition

[1976] HCA 50

HIGH COURT OF AUSTRALIA

Gibbs, Stephen and Mason JJ.

In re BERRILL'S PETITION

(1976) 134 CLR 470

1 October 1976

Parliamentary Elections (Cth)

Parliamentary Elections (Cth)—Election for Senate—Electoral roll—Names of electors alleged to have been wrongly removed—Petition for declaration that election void—Court of Disputed Returns required not to inquire into correctness of any roll—Commonwealth Electoral Act 1918 (Cth), s. 190.

Decisions

October 1.
The following written judgments were delivered:-
GIBBS J. I have had the advantage of reading the reasons for judgment prepared by Stephen J. and agree with them. I need add only a few brief remarks. The alleged illegal practices upon which the petitioner relies to invalidate the election were such that, if they occurred, they resulted in the wrongful removal of names from the electoral rolls. Their alleged effect was that the rolls used at the election were incorrect. In other words, although the petitioner did not acknowledge the fact, her petition challenges the correctness of the rolls used at the election. But s. 190 of the Commonwealth Electoral Act 1918, as amended, clearly forbids the Court to inquire into the correctness of any roll. If the name of a voter is wrongfully removed from the roll the voter has a remedy, but the wrongful removal cannot form the foundation of a petition under PtXVIII of the Commonwealth Electoral Act. (at p471)

2. The petition must be dismissed. (at p471)

STEPHEN J. The petitioner, Helen Therese Berrill, by her petition dated 25th February 1976 seeks declarations that no candidate returned or elected to the Senate in the State of South Australia in the election held on 13th December 1975 was duly elected, alternatively that that election was void. Certain interlocutory relief is also sought. (at p471)

2. By her petition she alleges that in breach of provisions of the Commonwealth Electoral Act 1918, as amended, electoral registrars in the State of South Australia have, in specified circumstances, removed the names of electors from sub-divisional rolls; in consequence the names of very large numbers of electors are said to have been wrongly removed from the rolls. The petition goes on to assert the absence of any evidence that such electors became disqualified from being on an electoral roll, that they were ever re-enrolled or that they voted at the 13th December 1975 election; these assertions appear to be intended as allegations that the electors in question were not disqualified, have not re-enrolled and did not vote at those elections. Then follows an allegation that what the petitioner describes as "the prohibition from voting or the otherwise absence of persons from voting in the said election due to their non-enrolment" would have a variety of effects, which she specifies, upon those elections. The petitioner claims that the alleged removal of names is an illegal practice within s. 189 (3) of the Act and goes on to allege that the election of the successful Senate candidates should be declared void; there follows the prayer for relief already referred to. (at p472)

3. Essentially, then, the petition complains of the state of the electoral rolls upon which the last Senate election in South Australia was conducted. This remained the substance albeit unacknowledged, of the petitioner's complaint when the matter came before this Court sitting as the Court of Disputed Returns. (at p472)

4. The Solicitor-General for the Commonwealth, who appeared by leave to represent the acting Chief Electoral Officer, referred in the course of his submissions to s. 190 of the Act and to its injunction against the Court making any inquiry into the correctness of any electoral roll, and submitted that the matters alleged in the petition concerned the very matters which this Court was, by s. 190, enjoined from inquiring into - the correctness of electoral rolls. (at p472)

5. Having heard the petitioner in person in reply to this submission, the Court reserved its decision upon what was clearly a matter at the very threshold of the case and otherwise adjourned the further hearing. (at p472)

6. The Solicitor-General's submission is, I think, well founded. Section 190 of the Act is as follows:

"190. The Court shall inquire whether or not the petition is duly signed, and so far as Rolls and voting are concerned may inquire into the identity of persons, and whether their votes were improperly admitted or rejected, assuming the Roll to be correct, but the Court shall not inquire into the correctness of any Roll."

It clearly precludes the Court of Disputed Returns from entering upon any inquiry into the correctness of any electoral roll and it is exclusively upon the alleged incorrectness of such rolls in the State of South Australia that the present petition is founded. It follows that the Court has no jurisdiction to entertain the petition; the petition is misconceived and must be dismissed in whole in exercise of the power conferred by s. 189 (1) (vii) of the Act. (at p472)

7. That this must be its fate is clear enough from the terms of the petition and from the petitioner's argument. The petitioner appeared in person and in the course of her submissions it plainly appeared that the form taken by her petition did truly reflect the substance of her contentions. The terms of s. 190 are so clear as to require no elucidation by reference to authority, but if authority be needed it is not wanting. In Perkins v. Cusack (1929) 43 CLR 70 Starke J., sitting as the Court of Disputed Returns, was concerned with submissions that in a particular electorate votes were cast by persons who were, but should not have been, on the relevant roll. It was their presence on the roll rather than, as here, their absence from it that was objected to but the views expressed by his Honour are equally applicable to either case. Section 190 was in its present form and his Honour rejected evidence sought to be tendered and bearing upon the correctness of enrolment; he did so because "that evidence would challenge the correctness of the Roll, and such an inquiry is forbidden to this Court by the statute" (1929) 43 CLR, at p 74 . He later, in another context, said (1929) 43 CLR, at p 75 : "Under s. 190 the Court must, for this purpose too, assume the Roll to be correct, and cannot inquire into its correctness". (at p473)

8. His Honour's decision has been followed by Maxwell J. in Re Darlinghurst Petition (1951) 51 SR (NSW) 204 . In In re the Nash Election Petition; Grant v. Dunstan and Carney (1952) St R Qd 53 , Mansfield S.P.J., without express reference to Perkins v. Cusack (1930) 43 CLR 70 but after an examination of earlier authorities, came to a like conclusion concerning the effect of the Queensland electoral laws which, he said, did not entitle him "to inquire into the correctness or otherwise of the compilation of the rolls used for this election, but only into the conduct of the election itself" (1952) St R Qd at p 64 . The Full Court's subsequent dismissal of an appeal by the petitioner turned upon quite different grounds. (at p473)

9. It is not to be thought that the fate of this petition discloses a situation in which a person whose name is wrongly removed from the rolls or who is wrongly refused entry upon the rolls is without remedy. On the contrary quite adequate remedies exist for those who choose to avail themselves of them. Enrolment may be claimed as of right by those who are qualified - s. 51 - and registrars are required to give effect to valid claims - s. 43. By s. 58 of the Act a person whose claim for enrolment has been rejected or whose name has been removed from a roll as a result of an objection may have recourse to a court of summary jurisdiction which is empowered to order enrolment or re-instatement on the rolls. The Act also allows a person entitled to be enrolled but whose name has been omitted from or struck off the roll by error or mistake to vote upon satisfying certain procedural requirements - s. 121. Quite apart from these statutory rights a remedy by way of mandamus would be available in appropriate circumstances to enforce the right to registration of a qualified person denied his rights and for whom for any reason the statute did not afford appropriate relief. (at p474)

10. Any electoral system which, instead of providing a means of putting the electoral rolls in order before an election, allows alleged errors in those rolls to ground an attack upon the validity of the subsequent election exposes to risks of dislocation the democratic process which it is designed to serve. Hence, no doubt, the provisions, commonly found in our election laws, for the prior adjudication of disputes as to the state of the rolls, such disputes being treated as wholly distinct from, and not the proper subject matter of, petitions concerning disputed elections and returns. (at p474)

11. For the reasons stated above the present petition must be dismissed. There will be no order as to costs, the Solicitor-General having announced that no such order is sought. (at p474)

MASON J. I agree that, for the reasons given by Stephen J., this petition must be dismissed. (at p474)

Orders

Petition dismissed.

No order as to costs.