Re Wood

[1988] HCA 71

HIGH COURT OF AUSTRALIA

Mason C.J.

Questions referred pursuant to section 377 of the Commonwealth Electoral Act 1918

7 June 1988

Decision

MASON C.J. On 12 May 1988 the Full Court answered the questions referred by the Senate to the Court of Disputed Returns pursuant to ss.376 and 377 of the Commonwealth Electoral Act 1918 ("the Act") respecting the place for which William Robert Wood was returned. The Court answered the questions as follows:

"Question (a): There is a vacancy in the representation of New South Wales in the Senate for the place for which Senator Wood was returned;

Question (b): The vacancy may be filled by the further counting or recounting of ballot papers cast for candidates for election for senators for New South Wales at the election; and

Question (c): There is no casual vacancy for one senator for the State of New South Wales within the meaning of section 15 of the Constitution."

At the conclusion of its judgment the Court stated:

"Having answered the questions referred by

resolution of the Senate, it may be that this Court has no further function to perform with respect to the filling of the vacancy which we have declared to exist. Another view is that the Court should give directions to the Australian Electoral Officer to undertake a recount of the ballot papers, leave being reserved to the parties who have appeared to apply to a Justice of the Court to resolve any questions which may arise as to the method of counting or recounting in order to identify the candidate who is entitled to be elected to the unfilled place. It might be thought that, upon completion of the recount, the Court should exercise the power to declare 'any candidate duly elected who was not returned as elected' (s.360(1)(vi)), whereupon the person in question would 'take his seat accordingly': s.374(ii)."

The Court noted that the jurisdiction of the Court to perform any further function in the matter had not been argued and went on to say that it would not embark on the performance of any further function except on the express application of one of the parties.

2. The Attorney-General for the Commonwealth has now made application for the following orders:

"1. THAT the Australian Electoral Officer for the State of New South Wales undertake further counting and recounting of the ballot-papers cast for candidates for election for the Senate pursuant to the writ issued by the Governor of New South Wales dated 5 June 1987 for the election of 12 Senators for the State of New South Wales for the purpose of determining the candidate entitled to be elected to the place for which Senator Wood was returned.

2. THAT the further counting and recounting of the ballot-papers be conducted in accordance with such directions as to the Court seem meet.

3. THAT there be liberty reserved to the parties to apply to a Justice of the Court in respect of any further questions which may arise as to the method of further counting and recounting of the ballot-papers.

4. THAT upon the completion of the further counting and recounting the Australian Electoral Officer for the State of New South Wales report to the Court the candidate identified as entitled to be elected.

5. THAT the candidate so identified be declared duly elected as a Senator for the State of New South Wales for the place for which Senator Wood was returned."

Notice of the application has been given to the other parties to the proceedings.

3. The Attorney-General requests the making of orders 1-4 above immediately, with a view to the making of order 5 upon receipt by the Court of the report referred to in order 4. The Solicitor-General for the Commonwealth, who appeared on behalf of the Attorney-General, submitted that the Court has jurisdiction to make the orders sought. The existence of jurisdiction has not been contested by any of the parties. The only matter in issue before me is whether it is appropriate to make the particular orders sought in the Notice of Motion.

4. Before turning to that issue I make these comments on the matter of jurisdiction. By s.379 of the Act, on the hearing of any reference under Pt XXII, the Court has the powers conferred by s.360 so far as they are applicable. Section 360(1)(vi) authorizes the Court to declare any candidate duly elected who was not returned as elected. It seems to me that as an incident of the exercise of this power the Court can give appropriate directions with respect to the counting or recounting of ballot-papers at an election. The giving of such directions will facilitate the exercise of the power conferred by s.360(1)(vi) and will enable the vacancy to be filled as quickly as possible.

5. According to an affidavit of the Electoral Commissioner, the ballot-papers for the 1987 New South Wales Senate election are in the possession of the Australian Electoral Commission and the Australian Electoral Officer for that State is able to conduct the further counting or recounting required by the answer to question (b), subject to the Court giving certain directions set out in par.9 of that affidavit.

6. The proposed directions are as follows:

"(1) a vote indicated on a ballot-paper opposite the name of Robert Wood be counted to the candidate next in the order of the voter's reference and the numbers indicating subsequent preference(s) be treated as altered accordingly;

(2) the further counting and recounting be conducted as nearly as practicable in accordance with the relevant provisions of s.273 of the Act as if there were 12 vacancies to be filled;

(3) the further counting and recounting identify which candidate not being one of the eleven already returned as duly elected is the first entitled to be elected;

(4) where a voter has indicated in the manner described in sub-s.239(2) or sub-s.239(3) of the Act a wish to adopt the group voting ticket of the Nuclear Disarmament Party whose candidates appeared as Group E on the ballot-paper for the 1987 election, the voter's vote be dealt with, subject to direction (1) above, and so far as is racticable, in accordance with s.272 of the Act notwithstanding that candidate Dunn acting alone would not have been able to make a joint request under s.168 of the Act;

(5) notwithstanding direction (1) any ballot-paper ruled to be informal during the 1987 Scrutiny be treated as informal in the further counting and recounting;

(6) notwithstanding direction (1) any ballot-paper ruled to be formal during the 1987 Scrutiny be treated as formal in the further counting and recounting;

(7) notwithstanding direction (1) any ballot-paper showing the same preference for candidate Wood and one or more other continuing candidates be set aside as exhausted in accordance with s.273(26) at the point in the scrutiny at which it would have been set aside had Robert Wood been a candidate eligible for election; and

(8) ballot-papers marked with group voting ticket votes not be physically counted again but that the group voting tickets figures ascertained in the 1987 Scrutiny be adjusted in accordance with direction (1) for the purposes of the further counting and recounting."

7. Counsel for Mrs Nile submits that the further counting should take the form of simply eliminating the votes for Robert Wood and declaring Mrs Nile, the candidate with the highest number of votes after Robert Wood, to be elected. Alternatively, counsel for Mrs Nile submits that primary and preferential votes for Robert Wood should be treated as informal, except to the extent that preferential votes otherwise informal might be saved by s.270. Each of the two submissions is inconsistent with the judgment delivered on 12 May 1988. The Full Court stated:

"It is only to the extent that s.16 of the Constitution invalidates the particular indication of preference that effect is denied to the voter's expressed intention. It is as though the unqualified candidate were deceased: cf. Reg. v. Mayor of Tewkesbury (1868) LR 3 QB 629, at p 634. The provision which applies when a deceased candidate's name is on the ballot paper is s.273(27): a vote indicated on a ballot paper opposite the name of a deceased candidate is counted to the candidate next in the order of the voter's preference and the numbers indicating subsequent preferences are treated as altered accordingly. For the purposes of the scrutiny which may now be conducted, a vote for an unqualified candidate is in the same position as a vote for a candidate who has died, and the votes should be treated accordingly. By construing Pt XVIII in this way, the true result of the polling - that is to say, the true legal intent of the voters so far as it is consistent with the Constitution and the Act - can be ascertained."

8. Counsel for Mrs Nile then submits that I should not give direction (4) because it requires that counting take place on the footing that voters could adopt the group voting ticket of the Nuclear Disarmament Party whose candidates (Robert Wood and Irina Dunn) appeared as Group E on the ballot-paper. The argument is that Robert Wood, not being qualified as a candidate, could not join with Irina Dunn to have their names grouped as candidates under s.168 or lodge a statement under s.211 adopting a group voting ticket, with the result, so it is argued, that the provisions of s.272, which deem ballot-papers to have been marked in accordance with a group voting ticket have no application to votes for Group E candidates marked in the manner described in s.239(2) and (3). This submission is again at odds with the Full Court judgment, the effect of which is that, though Robert Wood was disqualified, his nomination was in order and his name was properly on the ballot-paper. The Court observed:

"The problem of want of qualification arises under the Act if an unqualified candidate is elected, but an election is not avoided if an unqualified candidate stands. If it were otherwise, the nomination of unqualified candidates would play havoc with the electoral process, for the ministerial officer who accepts nominations has no general power to refuse a nomination in due form: see s.172 of the Act."

9. The point is that only the election of Robert Wood miscarried so that a primary or preferential vote for him must be disregarded. But in other respects the election for the Senate was valid and in counting the votes it is necessary to have regard to the group voting ticket process as it related to the Group E candidates because that process was a central feature of the ballot-paper. As the electors were entitled to vote in accordance with a group voting ticket process, it must be taken into account in order to give effect to the intentions of the voters as expressed in the ballot-papers.

10. I would therefore give direction (4). The other directions do not call for any comment.

11. Accordingly, I make the following orders:

(1) Order (1) as asked in the Notice of Motion.

(2) That the further counting and recounting of the

ballot-papers be conducted in accordance with the directions set out in par.9 of the affidavit of Colin Anfield Hughes sworn on 19 May 1988 and numbered (1) to (8) inclusive, substituting in direction (1) the word "preferences" for the word "preference".

(3) Order (3) as asked in the Notice of Motion.

(4) Order (4) as asked in the Notice of Motion.

(5) Adjourn the application to a date to be fixed.

Orders

Order (1) as asked in the Notice of Motion.

That the further counting and recounting of the ballot- papers be conducted in accordance with the directions set out in par.9 of the affidavit of Colin Anfield Hughes sworn on 19 May 1988 and numbered (1) to (8) inclusive, substituting in direction (1) the word "preferences" for the word "preference".

Order (3) as asked in the Notice of Motion.

Order (4) as asked in the Notice of Motion.

Adjourn the application to a date to be fixed.