Tanti v Davies (No 3)
[1995] QSC 298
•8 December 1995
IN THE SUPREME COURT
OF QUEENSLAND
SITTING AS THE COURT OF DISPUTED RETURNS Pet. No. 16 of 1995
[Tanti v Davies (No 3)]
IN THE MATTER of the Electoral Act 1992
- and -
IN THE MATTER of The election of one member of the Legislative Assembly for the electoral district of Mundingburra in the State of Queensland
BETWEEN: FRANK JOHN TANTI
AND: ELECTORAL COMMISSION OF QUEENSLAND
First Respondent
AND: KENNETH HENRY DAVIES
Second Respondent
REASONS FOR JUDGMENT - B.W. AMBROSE J
Judgment delivered 08/12/1995
CATCHWORDS: ELECTIONS - Disputed Return - whether official error or other breach of Electoral Act necessary for exercise of power to order new election - special postal voter - whether "real place of living" synonymous with "place of residence" - whether registration as "special postal voter" required before obligation arises to post ballot paper - responsibility of Commission for error or omission by another authorised by it to perform acts in connection with election.
The Electoral Act 1992 ss. 58, 64, 65, 101, 105, 108, 110, 113, 114, 136, 137, 138, 180.
Counsel:I.D.F. Callinan Q.C. with him P.A. Hastie & P.J. Dunning for the Petitioner
C.E.K. Hampson Q.C. with him R.M. Derrington for the First Respondent
J. A. Jerrard Q.C. with him K Carmody for the Second Respondent
Solicitors:Prentice Solicitors for the Petitioner
Minter Ellison for the First Respondent
Goss Downey Carne for the Second Respondent
Hearing Date: 15, 16 and 17 November 1995
IN THE SUPREME COURT
OF QUEENSLAND
SITTING AS THE COURT OF DISPUTED RETURNS Pet. No. 16 of 1995
IN THE MATTER of the Electoral Act 1992
- and -
IN THE MATTER of The election of one member of the Legislative Assembly for the electoral district of Mundingburra in the State of Queensland
BETWEEN: FRANK JOHN TANTI
AND: ELECTORAL COMMISSION OF QUEENSLAND
First Respondent
AND: KENNETH HENRY DAVIES
Second Respondent
REASONS FOR JUDGMENT - B.W. AMBROSE J
Judgment delivered 08/12/1995
The petitioner disputes the return for the 1995 election of a member of the House of Legislative Assembly in Queensland for the electorate of Mundingburra. The final return of voting statistics in dispute shows that there were three candidates for election.
The enrolled voters numbered 22035; apparently 2513 of the enrolled voters did not cast a vote.
The total of the votes counted was 19522. Of those there were 287 informal votes. There were therefore 19235 valid votes counted.
Of the primary votes counted the petitioner received 8541 first preference votes.
The second respondent received 8429 first preference votes.
Neither the petitioner nor the second respondent having obtained a majority of the total valid votes cast the 2265 first preference votes cast in favour of a third candidate were counted to ascertain to whom of the petitioner and the second respondent the second preferences ought be allotted. This counting showed that the petitioner received 751 of those second preference votes and the second respondent received 879 of such votes.
The end result therefore was that upon allocation of preferences the petitioner received 9292 votes and the second respondent 9308 votes.
On the final counting then the return shows that the second respondent was elected by a majority of 16 votes.
The petitioner disputes the return on a number of bases which may be categorised as -
Multiple voting or alternatively personation (21 votes). (Petition Grounds 5(a) and (b))
Personation (39 votes). (Petition Ground 5(b)).
Declaration votes not counted (15 votes). (Petition Ground 5(c)).
The denial of a vote to 22 Australian Defence Force personnel serving overseas (22 votes). (Petition Ground 5(d)).
Persons denied the opportunity to cast a declaration vote by error of the first respondent (8 votes). (Petition Ground 5(e)).
Ballot papers counted in favour of the second respondent which should have been excluded as informal. (Petition Ground 5(f)).
Ballot papers which should have been counted for the petitioner which were excluded as informal. (Petition Ground 5(g)).
This is the first election held subsequent to the coming into effect of the Electoral Act 1992. That legislation made very significant alterations to the electoral laws previously in force under the Elections Act 1983.
Under s.131 of the Elections Act 1983, the Election Tribunal constituted by a Judge of the Supreme Court had power to inquire into and determine the matters specified. It provided:"131. General powers of Tribunal. The Tribunal shall have power to inquire into and determine -
(a)election petitions;
(b)all questions that may be referred to it by the Legislative Assembly respecting the validity of any election or return of any member to serve in the Legislative Assembly, whether the question relating to such election or return arises out of -
(i)an error in the return of the returning officer;
(ii)the failure of the returning officer to make a return;
(iii)an allegation of bribery or corruption against any person concerned in the election; or
(iv)any other allegation calculated to affect the validity of such election or return; and
(c)any matter or question concerning the qualification or disqualification of any person who has been returned as a member of the Legislative Assembly."
Section 151 of the Act provided:
"151. Determination by Judge. At the conclusion of the trial, the Judge shall determine and declare, upon the questions of fact and law arising before him -
(a)whether the member whose return or election is complained of was duly returned or elected;
(b)whether any person not returned as elected was duly elected;
(c)whether the election was void; or
(d)whether any member whose qualification is in question was qualified or disqualified,
as the case may require."
Under s.152 the Tribunal then certified the determination to the Speaker of the House. An appeal lay to the Full Court of the Supreme Court of Queensland from every determination of the judge constituting the Tribunal upon a question of law.
Under s.160 of the 1983 Act, effect was given to the duly certified determination made under s.151.
Under the Electoral Act 1992 the Court of Disputed Returns is given very wide powers which seem to be limited only by the specific statutory constraints to be found in the Act.
The powers of the court are to be found in s.136 of the Act which provides:"136(1) Subject to sections 137 and 138, The Court of Disputed Returns may make any order or exercise any power in relation to the petition that the Court considers just and equitable."
(2) The orders may include any of the following -
(a)an order to the effect that the person elected is taken not to have been elected;
(b)an order to the effect that a new election must be held;
(c)an order to the effect that a candidate other than the one elected is taken instead to have been elected;
(d)an order to dismiss or uphold the petition in whole or part."
Of the specific statutory restrictions on the wide powers conferred under s.136(1) to be found in ss.137 and 138, it is necessary at this stage to refer only to those in s.137(1)(b) which provides:
"137(1). The Court must not make an order mentioned in section 136(2) because of -
(a)...
(b)an absence or error of, or omission by, any member of the Commission's staff that appears unlikely to have had the effect that the person elected would not have been elected."
(2) In determining whether the requirements of subsection (1)(b) are met, the Court must not, if it finds that an elector was prevented from voting at the election by absence, error or omission, take into account any evidence of the way in which the elector had intended to vote."
It is the contention of the petitioner that the power of the Court to order that a new election be held in the electorate of Mundingburra is not constrained by proof of error of or omission by a member of the Commission's staff but may be founded on "anything" which the Court considers would make it just and equitable to order a new election.
The second respondent, on the other hand, contends that a new election may only be ordered as a consequence of official error or omission which may have affected the outcome of the election.
Section 353(1) of the Commonwealth Act makes it clear that the Court of Disputed Returns considers the validity of an election or return.
Section 355 then requires the petition to set out the facts which are relied upon to invalidate the election or return.
Section 383 enables a court to restrain conduct which would constitute a contravention of or offence against the Act relating to elections.
Section 365 specifies various departures from prescribed procedures under the Act which do not permit the avoidance of an election unless shown to affect the result. (c.f. s.137 (1) and (2) of the Queensland Act.)
The ground upon which orders could be made by the Elections Tribunal under the repealed Elections Act 1983(Q) were clearly stated in s.131 and s.151 of that Act and the principles upon which determinations were to be made were stated in s.145.
Under s.360(2) of the Commonwealth Electoral Act 1918 as amended the Court of Disputed Returns constituted under s.354 is given discretion to exercise its power under s.360(1) and (3) on such grounds as the Court thinks just and sufficient. The effect to be given to a decision of the Court is stated in s.374.
In my view the powers given to make orders upon the review of disputed electoral returns and elections under the Commonwealth Act are expressed in terms similar to the way in which the powers of this Court are limited under s.136(1). However, those powers are exercisable only were the Court is considering the validity of an election or return under s.353(1). There appears to be no express limitation of grounds upon which a new election may be ordered under the new Electoral Act 1992 (Q).
In the present case the grounds upon which the powers of this Court may be exercised are important because with respect to the fourth basis upon which the petition was argued - relating to the denial of a vote to 22 Australian Defence Force personnel, it is the contention of the second respondent that accepting that they were denied a vote and that that denial may possibly have had an effect on the outcome of the election, nevertheless if that denial did not result from any error or omission by the Commission this Court has no power to order a new election on this ground only.
Traditionally courts have looked to the legislature to expressly define the grounds upon which they may in effect order a new election upon the hearing of a disputed return.
In Bridge v. Bowen (1916) 21 CLR 582, Griffiths CJ at p.586 referred to the unwritten law setting forth the grounds upon which courts will interfere with elections which he said was sometimes called "the common law of elections". He considered what the legal consequence would be of an omission in an electoral statute to deal specifically with a particular event relating to the election and said at p.587:"I think that the real question is: What does the common law prescribe as a consequence of such an event? ... In the present case the question is: At common law is such an election liable or not liable to be declared invalid?"
At p.588 he observed:
"So far as relevant to the present case, this common law may be summed up in one sentence, thus:- If, having regard to the circumstances attended upon an election, it appears that there is good ground for believing that the formal result does not represent the free and deliberate choice of the competent electors, the election may be declared void.
It will be found on a consideration that this rule is the foundation, and the only foundation, for the power always assumed to exist of avoiding an election."
At p.592, he cited with approval part of the judgment in Woodward v. Sarsons (1875) LR 10 CP 733 at 743, which reads:
"But, if the tribunal should only be satisfied that certain mishaps had occurred, but should not be satisfied either that a majority had been, or that there was reasonable ground to believe that a majority might have been, prevented from electing the candidate they preferred, then we think that the existence of such mishaps would not entitle a tribunal to declare the election void by the common law of Parliament."
Reference to the context in which that observation was made indicates that the "certain mishaps" to which he referred related to failure to comply strictly with statutory requirements for the conduct of the election.
In the same case, Isaacs J at p.616 dealing with Woodward v. Sarsons observed:
"The first question the Court formulated was (L.R. 10 C.P., 743): 'What is the true statement of the rule under which an election may be avoided by the common law of Parliament?' The Court answered that question by saying an election is to be declared void by the common law, if the tribunal is satisfied as a matter of fact either (i) that there was no real electing at all or (ii) that the election was not really conducted under the subsisting election laws."
He continued at p.617:
"The judgment declares that under this second head the question must be whether the departure from the prescribed method of election is great enough to deprive the election of its character as an election under the existing law."
It is tempting in the absence of any clear statement of the grounds upon which a court may exercise the wide powers given to it under s.136 to require as a prerequisite of the exercise of those powers a determination of facts which would, upon the application of the common law of Parliament as defined in Bridge v. Bowen justify the ordering of a new election.
It is clear from the terms of s.137(1)(b) that error or omission by a member of the Commission's staff may be a ground upon which an order may be made under s.136(2) of the Act. Reference to the circumstances specified in s.137(3) of the Act indicates that in some cases of procedural defect (although not those specified) resulting from failure to comply with a requirement of the Act an order may be made under s.136(2) of the Act. Similarly s.138(1) and (2)(a) of the Act contemplate an order based upon interference with voting by electors and the form of votes cast etc.
In spite of the absence of any express requirement for the finding of facts involving failure to comply with the statutory requirements of the Act or the occurrence during the election of something declared to be illegal under the Act, as presently advised, I would so construe s.136(1) as to require as a prerequisite for the exercise of "any power in relation to the petition that the Court considers just and equitable" the determination of a fact or facts going to the validity of the election considered in the light of the statutory requirements to be found in the Act. If established such facts need to be considered in the light of all the circumstances to determine whether any invalidity leads to the conclusion, to use the words of Griffiths CJ in Bridge v. Bowen, "that there is good ground for believing that the formal result does not represent the free and deliberate choice of the competent electors".
I propose therefore to proceed - with respect to Basis 4 (petition ground 5(d)) - on the basis that there is no general discretion given under s.136(1) to order a new election unless the facts show that the election was rendered invalid by virtue of contravention of a statutory requirement of the Act. Upon the facts of this petition, the relevant acts or omissions are the acts or omissions of the Commission or persons for whose acts or omissions the Commission is responsible.
BASIS (1) -MULTIPLE VOTING, PERSONATION
PETITION GROUND 5(A) AND 5(B) (21 votes)
Ground 5(a) asserts multiple voting by electors or in the alternative personation. There are 21 votes or voters comprised in this category.
On the other hand, ground 5(b) asserts that there are 39 votes said to result from personation by an unknown person of an elector on the electoral roll for Mundingburra. For reasons which will emerge, it is sought to infer the personation asserted in respect of the 39 votes considered under 5(b) of the petition on a slightly different basis from the personation sought to be inferred with respect to the 21 votes (under ground 5(a)) as an alternative to the multiple voting assertion.
Before dealing with the factual situations canvassed in either of these grounds, it is convenient to deal generally with matters of law pertaining to each ground.
Under s.101 of the Electoral Act, the only persons who are entitled to vote for an election are persons on the electoral roll for the district concerned or those who are entitled to be enrolled because of the provisions of s.64(1)(a)(ii) of the Act or persons whose names are not on the electoral roll for the district because of official error.
Under s.101(2):
"A person is not entitled to vote -
(a) more than once at the same election for an electoral district; or
(b)at 2 or more elections for electoral districts held on the same day."
The petitioner bases his argument under ground 5(a) by reference to the copy electoral rolls marked by returning officers in the course of the elections which demonstrate that on 21 occasions the name of the same elector, designated on the roll by name and address, was crossed out on two occasions by returning officers indicating that on each occasion that elector was given a ballot paper for the purpose of voting.
There can be little doubt that the petitioner can establish and indeed has established this basic fact for which however there are a number of possible explanations including:
the elector, whose name was crossed off on two occasions when a ballot paper was obviously given to somebody using that name at different polling booths, voted twice in the election contrary to s.101(2)(a); or
a person or persons personated the voter, whose name was on the roll, and on one or both occasions votes were cast in the name of that elector who voted only once or did not vote at all; or
through official error an officer of the Commission at a polling booth incorrectly marked off the wrong name on the electoral roll when handing a ballot paper to somebody else entitled to vote.
A great deal of investigative work has been done by the petitioner and both respondents with respect to the 21 occasions upon which electoral rolls were so marked as to indicate that the same elector voted twice.
In the course of those investigations it emerged that 3 voters, whose names were crossed off the roll and who were thought initially to have voted twice, did in fact vote only once but because they were not enrolled on the electoral roll for the district, they were not entitled to cast even one vote.
Those persons were:
Barry William Anderson of Aitkenvale
Mr Anderson cast a vote in respect of the Mundingburra district at Aitkenvale. It emerged however that his name had been deleted from the electoral roll at the material time and that he was not entitled to vote at Aitkenvale. Another Barry William Anderson of Rosslea voted only once at Mundingburra. He was entitled to vote at Mundingburra. It follows therefore that the Barry William Anderson of Aitkenvale, whose vote was cast in the Mundingburra electorate was not entitled to do so, and one vote therefore must be disallowed.
Peter Frederick Heuke of Hermit Park
This voter was recorded as having received a ballot paper at the polling booths at Rosslea and at Mundingburra. This elector confirmed having voted only once at Rosslea. The unexplained vote therefore is the one cast at the Mundingburra polling booth when the name of the elector, Peter Frederick Heuke was crossed off. In fact investigations showed that Peter Jeffrey Heuke did vote at Mundingburra. However he was not entitled to do so as his name had been deleted from the electoral roll. It follows therefore that that one vote was invalid.
Elemo Tapim of 103 Ross River Road, Mundingburra
This elector was recorded as having voted twice at the Mundingburra electoral booth. An elector who lived at 103 Ross River Road, named Elemo Douglas Tapim had his name removed from the electoral roll prior to the election. He confirmed having voted once at Mundingburra. I infer that this multiple voting is explained by the fact that Elemo Douglas Tapim voted and by error the officer at the polling booth crossed off the elector's name in two separate rolls. It is clear however that there was a vote cast by Elemo Douglas Tapim who was not entitled to do so and this amounts to an invalid vote being counted.
D'Arne Gay Greenway of Aitkenvale
This elector is recorded as having voted once at Rosslea and once at Aitkenvale.
After some difficulty this elector was located and confirmed having voted once at Aitkenvale. That person's name was crossed off the electoral roll also at the polling booth at Rosslea. Investigations do not suggest any explanation for this prima facie case of somebody voting in the name of this elector not being entitled to do so. Investigations do not demonstrate that anybody with a similar name may have been inaccurately recorded in the Rosslea polling booth.
On the evidence it is probable that some person not entitled to vote in the Mundingburra electorate did vote using the name of D'Arne Gay Greenway and one vote therefore ought be disallowed.
William Raymond Standfast of Cranbrook
This voter was recorded as having voted at Currajong booth and at Heatley booth. William Francis Standfast who is the son of the elector had previously been on the Mundingburra electoral roll but his name had been removed. He denied in any event having voted at the election.
There is no explanation for the elector's name having been crossed off the roll at the Currajong booth and in the absence of explanation I infer that some person using the name of the elector cast an invalid vote.
Robert Bakkers
This voter was marked as having voted at two polling booths, one at Hermit Park and one at Mundingburra. The elector confirmed having voted only once at Mundingburra. There was a Robert George Baker at Mysterton. He was included on the Commission's "non voter" list. He said that he voted once at Hermit Park. While the name Baker and Bakkers are quite dissimilar and their addresses are quite dissimilar, it is contended that though there may have been an error on the part of the attendant at the polling booth, which explains the "double voting" record; the fact that Mr Baker did vote once at Hermit Park and was not recorded as having voted at all, lends support to the contention that through gross carelessness the person in charge of the polling booth at Hermit Park crossed off a dissimilar name to that of the elector living at a quite different address in mistake for Mr Baker's name and address.
It is by no means clear to me that the failure to cross off Mr Baker's name is necessarily referable to a second crossing off of the elector's name at Hermit Park.
Prima facie, there has simply been two votes cast by an elector named Robert Bakkers of 44 Camp Street, Mundingburra. I am unpersuaded that an officer at the Hermit Park polling booth would be likely even in error to cross off that elector's name rather than the name of Robert George Baker of 25 Townsend Street, Mysterton. Not merely is the name different, but the address is quite different.
Prima facie, the explanation of double voting is the most likely; a person not entitled to vote, voted in the name of Robert Bakkers. I infer therefore that one vote was cast in the name of Mr Bakkers by a person not entitled to cast a vote.
Erin Maree Bunting
There was a vote cast in this elector's name at the Vincent polling booth and there was also a declaration vote cast in this name. The elector lived at 8 Biggs Street, Vincent. Another elector, Katherine Mavis Bunting, the mother of the elector, lived at the same address. The elector confirmed having voted only once by way of declaration vote. Katherine Mavis Bunting, the mother of the elector was returned on the Commission's "non-vote" list. She said that she voted once at Vincent.
I infer that there was a mistake by the officer at the polling booth at Vincent who crossed off the elector's name in lieu of that of her mother. Both people lived at the same address at the time. Although there was official error there was no multiple voting on this occasion and that error did not in any way affect the validity of the two votes cast.
David Edwards
This elector is recorded as having received two ballot papers: one at the Cranbrook polling booth and another at the Heatley polling booth. The elector confirmed having voted only once at Heatley.
Four people by the name Edwards were questioned with a view to discovering who, if any of them, may have voted at the Cranbrook polling booth. Not one of the four persons interviewed cast any light upon or provided any explanation for somebody voting at Cranbrook using the elector's name.
All four persons interviewed were on the Commission's "non voter" list. Two of the four confirmed not having voted. The other two could not be located. One of the two not located lived at 6/1 Hodel Street, Hermit Park. His full name was Shane Michael Edwards.
The other person not located was named William Russell Edwards and he lived at 109 Halstead Street, Gulliver.
Neither the names nor addresses of those persons on the Commission "non voter" list could readily be confused with that of the voter. No part of the names or addresses (except for the surname) are similar.
I infer that one of the votes was cast in the name of this elector by a person not entitled to vote.
Kathryn Anne Fryar
This elector is recorded as voting twice at Heatley electoral booth. She confirmed having voted only once at Heatley but explained that in the course of voting she spoke to two separate officers. She believed that each officer may have crossed her name off the separate roll that each had in his possession, and this is an explanation for how her name may have been marked off more than once.
In the light of that explanation I am unpersuaded that there has been a double voting in this case.
Katrina Anne Gentner 213 Kings Road, Pimlico
This elector is recorded as having voted twice at the Mundingburra electoral booth. She confirmed having voted only once at Mundingburra.
There is another elector, Kathryn Ann Gentner who also lives at 213 Kings Road, Pimlico. This elector was on the Commission's "non voter" list. She confirmed having voted once at Mundingburra.
In my view the inference is clearly open that there was an error on the part of the person at the Mundingburra booth, who twice crossed off the name of the elector instead of crossing it off once and crossing off once the name of her daughter who was living at the same address. I am unpersuaded that there was any double voting in this case.
Megan Maree Gray of 22 Mango Avenue, Mundingburra
This elector is recorded as having voted twice at the Mundingburra booth. Another elector named Megan Leanne Gray of 62 Bowen Road, Rosslea was on the Commission's "non voter" list. She confirmed having voted once at Mundingburra.
Having regard to the similarity of the first Christian name and surname of the two electors, I am unpersuaded that there was double voting. I think it equally probable that there was an error on the part of a clerk at the polling booth. It is a careless error. It seems difficult to imagine how the two quite separate addresses could be confused if the checking of the names and addresses was done properly. However, it may have been so and I am not persuaded that there has been a double voting established on this occasion.
Jacqueline Lazzaroni of 13 Cahill Street, Aitkenvale
This elector is recorded as having voted at Cranbrook polling booth and at Pimlico polling booth. The elector confirmed having voted only once at Pimlico. The question then is whether some person not entitled to vote, did vote at Cranbrook using the name of the elector.
There is an elector Giuseppina Lazzaroni of 17 Calara Street, Cranbrook. She was recorded on the Commission's "non voter" list. She confirmed that she did in fact vote at Cranbrook.
Having regard to the surname of the electors involved in this case and the fact that Giuseppina Lazzaroni was living at Cranbrook and voted at Cranbrook and yet was recorded on the Commission's "non voter" list, I infer that when she voted at Cranbrook the name of Jacqueline Lazzaroni was crossed off in error by the officer at the polling booth.
I am unpersuaded that there was a multiple or double voting on this occasion.
Michael John Malpas of 38 Mill Drive, Heatley
This elector was recorded as having voted twice at Heatley. The elector confirmed that he voted only once at Heatley. Another elector, Peter Malpas of the same address as the elector, 38 Mill Drive, Heatley, was recorded on the "non voter" list. He says that he did vote once at Heatley.
I infer that through error of an officer of the Commission at the polling booth, instead of the names Peter Malpas and Michael John Malpas each being crossed off once, the name Michael John Malpas was crossed off twice.
I am unpersuaded on this material that there was a double voting.
Lorraine Gail McLean of 15 Norris Street, Hermit Park
This elector is recorded as having voted at Hermit Park and Pimlico. The elector confirmed voting only once at Hermit Park. The unexplained vote then was cast at Pimlico. Linda Gail McLean is recorded on the Commission's "non voter" list. She said that she voted once at Pimlico.
I am unpersuaded that there was a double voting in the sense that a person not entitled to vote, voted in the name of Lorraine Gail McLean. The inference is clearly open that an officer at the polling booth simply crossed off the name Lorraine Gail McLean twice instead of crossing off that name once and the name Linda Gail McLean once.
Kea Maree Pardon of 24 Leopold Street, Aitkenvale
This elector is recorded as having voted twice at Aitkenvale. The elector confirmed having voted only once at Aitkenvale. Another voter, Heather Mary Pardon (the mother of the elector) also of 24 Leopold Street, Aitkenvale, was recorded on the Commission's "non voter" list. She said that she voted once at Aitkenvale.
I infer that the name of the elector was crossed off twice instead of being crossed off once together with the name Heather Mary Pardon being crossed off once. There were probably two rolls used by different officers and there was simply a mistake on the part of the one who should have crossed off the name Heather Mary Pardon when she received a ballot paper to vote at Aitkenvale.
Jodie Michelle Sampson of 3 Rigby Court, Aitkenvale
This elector is recorded as having voted once at Mundingburra polling booth and also having cast a declaration vote on polling day. The elector confirmed having cast only one declaration vote. Another elector, Jodie M Sampson was included on the Commission's "non voter" list. She confirmed having voted once at Mundingburra in person.
I am persuaded on this material that the possibility is that there was an error at the polling booth and that instead of the name Jodie M Sampson being crossed off the list when she voted in person, the name of the elector was crossed off.
David John Scott of 77 Leopold Street, Aitkenvale
This elector was recorded as having voted twice, once at Hermit Park polling booth and the second time at Aitkenvale polling booth. The elector confirmed having voted only once at Aitkenvale. That leaves the vote in the elector's name at Hermit Park to be explained. David John Scott of Queens Road, Hermit Park, was recorded on the Commission's "non voter" list. He confirmed that he voted once at Hermit Park.
I would infer that the person recording his vote at Hermit Park crossed off the name of the elector at Aitkenvale instead of the name of Mr Scott at Hermit Park. I am unpersuaded that there was any double voting in this case.
Leigh-Anne Williams of 21 Hans Street, Gulliver
This elector was recorded as voting at the polling booth at Pimlico and also at Mundingburra. The elector confirmed having voted only once at Pimlico. A voter Lee-Ann Doris Williams of 43 Wentworth Avenue, Mundingburra was recorded on the Commission's "non voter" list. She confirmed having voted once at Mundingburra.
Having regard to the similarity of the names I am persuaded that a person at one of the polling booths wrongly marked off the name of the elector living at Gulliver instead of the elector living at Mundingburra.
I am unpersuaded that there is a double voting shown in this case.
Bradwin James Wilson of 38 Elizabeth Street, Aitkenvale
This voter is shown as having voted twice, once at the Aitkenvale polling booth and by declaration vote. The elector confirmed at having voted only once at Aitkenvale by declaration vote. A voter Frederick Bradwin Scott Wilson was recorded on the Commission's "non voter" list. He confirmed having voted at Aitkenvale.
Having regard to the similarity of the names and the method by which each of the voters in question indicated they had voted, I am unpersuaded that there has been a double voting in this case.
Robert Winterburn of 8 Love Lane, Rosslea
This elector is recorded as having voted at Mundingburra and also by a declaration vote. The elector confirmed having voted only once at Mundingburra. Robert John Winterburn of 8 Love Lane, Rosslea, (son of the elector) had his name recorded on the Commission's "non voter" list. He confirmed that he had an absentee vote by way of declaration vote.
In my view, there has probably been an error in marking off the name. Having regard to the similarity of the names and the same address of each of the electors involved, I am unpersuaded that multiple voting has been demonstrated in this case.
Rolley Woodfield of 39 Beatrice Street, Aitkenvale
This elector is recorded as having voted twice at the Aitkenvale polling booth. The elector confirmed having voted once only at Aitkenvale. Alma Freda Woodfield who lives at the same address as the elector and is his wife, was recorded on the Commission's "non voter" list. She confirmed having voted only once at Aitkenvale.
I am persuaded that the explanation for the recording of the elector in this case having voted twice is explicable on the grounds of error on the part of the person crossing off his name. I am unpersuaded that there has been a multiple voting in respect of this particular of ground 5(a).
All told, therefore, I am persuaded that in respect of the particulars of ground 5(a), there are 7 voters of the 21 specified who cast votes which were not valid.
BASIS (2) - PERSONATION
PETITION GROUND 5(B) (39 VOTES)
With respect to the matters debated under ground 5(b) of the petition (39 votes), I make these preliminary observations.
This ground relies upon the petitioner's inability to locate voters on the electoral roll recorded as having voted or indeed sometimes even to discover persons in the vicinity of the enrolled residential address of those voters who knew anything about them.
It must be observed at the outset that it is a difficult task to establish personation having regard to the provisions of the Electoral Act designed to secure the secrecy of the way in which electors cast their votes. It appears from the material canvassed on the hearing of the petition generally that there is a significant itinerant population in and around the Mundingburra electoral district.
About a fortnight after the election the petitioner posted a letter to each of the persons on the roll for the electoral district of Mundingburra. About 500 of these letters were returned through the mail system as "not at this address". All of the electors' addresses, from which letters were returned, were checked off to see whether they had voted or not. Those who were not recorded as having voted at the election were excluded from further consideration. Those electors recorded as having voted were checked against the current Townsville telephone book. Intensive investigations were then launched to endeavour to locate persons recorded as having voted to ascertain whether a vote recorded as having been cast by them, was in fact so cast. Of 187 names collected for intensive investigation, only 39 instances were argued upon the hearing of this petition. Those 39 cases were considered under 5 categories:
One allegedly affirmatively proved case of personation - where a person recorded as having voted, said she did not vote.
13 persons unable to be located in spite of intensive investigations, even though recorded on the electoral roll for Mundingburra as having voted.
One voter allegedly found, but the petitioner asserts not adequately shown to have cast a vote.
14 persons whose location has been established but for one reason or another have not been able to be interviewed by or on behalf of the petitioner.
10 electors who made declaration votes, whose signatures allegedly do not coincide with the signatures on the declaration votes.
Category 1
One elector travelled to northern New South Wales after the election and some difficulty was experienced in locating her. Eventually when located, she said that she did not in fact vote. However, the evidence discloses that this elector has a very bad memory. In fact, her daughter says she attended at a polling booth with this elector and actually saw the elector in a position ready to vote. To complicate the matter even further, the elector has since been interviewed on behalf of the second respondent and has said that she did in fact vote and was mistaken when she initially said she had not.
While this is not an adversarial hearing and I not persuaded that it is helpful to consider upon whom any onus lies to prove that this voter in category 1 did not in fact vote, on the whole of the material I am left in the position where on balance the evidence suggests that she did vote and that she was simply mistaken when she indicated initially that she did not.
I am unpersuaded that personation has been shown with respect to the category 1 elector.
Category 2
In this category there are 13 electors. Except with respect to one of the persons in this category, the evidence generally is to the effect that either the electors had not been seen for some significant period of time at their residential addresses recorded on the electoral role or that they had not been seen at about the time of the election.
The second respondent has placed evidence before the court that with respect to some of these electors, contact has been made and the electors have indicated that they did vote. The petitioner complains that he has not had time to investigate these matters and that the voters specified were not produced for examination. Complaints were also made that the evidence has not been subjected to the sort of scrutiny and testing that the petitioner would wish.
In my view with respect to 12 of the 13 electors specified in category 2 under this ground, the evidence on its face is quite insufficient to permit an inference to be drawn that there has been a personation of that elector. To permit such an inference to be drawn it would have to appear that more probably than not the specified elector did not vote in the election but that some other person dishonestly used the name of that elector to cast a vote which was invalid.
The evidence indicates that there are many persons living in the Mundingburra district of itinerant disposition. Prima facie in the absence of any evidence to the contrary, one ought assume the regularity of the electoral process. I am unpersuaded that there is any onus on either respondent to produce for examination any of the persons contained in category 2 merely because for some time prior or subsequent to the casting of votes on 15 July 1995 those persons may have lived somewhere other than at their enrolled residential addresses. In my view, there are many possible innocent explanations for persons not being known in the immediate vicinity of their enrolled addresses. They may very well have been living even if not residing somewhere else for years.
Of the 13 specified one located informed an electoral officer inquiring of his whereabouts that he did vote in the State Election at the Mundingburra booth at a time when he was residing at Kirwan. The voting records however, indicate that this elector did not vote at the Mundingburra booth but at the Pimlico polling booth. I have already referred to occasions when errors have occurred in marking off the names of electors at polling booths.
What is clear, if one accepts the elector's account, is that he did cast a vote at the election. In my view, it would be drawing a long bow to infer that some person improperly voted in that elector's name at Pimlico when coincidentally that elector cast a vote at the Mundingburra booth where by error the officer at that booth did not record him as having done so. It is at least as possible, in my view, that this particular voter was simply mistaken when he said he voted at Mundingburra. He may well have voted at Pimlico where he is recorded as having voted. He is only recorded as having voted once and he says he did vote once.
I am not prepared to infer upon the material advanced to support the petition that this specified voter was personated by another who used his name improperly to cast a vote at Pimlico.
I am unpersuaded therefore that any of the electors contained in category 2 of electors particularised under ground 5(b) were personated.
Category 3
This elector could not be located by either the petitioner or the first respondent. The respondent by election placed material before the court to show that a person claiming to be this elector made a telephone call saying that he did in fact vote. This evidence is criticised on behalf of the petitioner as lacking any probative value. That may well be the case. However, the weakness of the evidence led by the second respondent cannot be used to support what in my view is an intrinsically weak case advanced by the petitioner. I am not prepared to infer merely from the fact that this elector could not be readily located that therefore his name was used improperly by somebody else to cast a vote in his name. I am unpersuaded therefore that the petitioner has succeeded with respect to category 3 of the electors specified under ground 5(b).
Category 4
This category comprises 14 electors where the petitioner has endeavoured independently to check for himself information obtained by the respondents to the effect that there is no basis for inferring that some persons other than those electors had invalidly cast votes in their names.
The petitioner in my view faces precisely the same problem with respect to this category as arises in the others. Apart from the difficulty that the petitioner's assistants have had in making personal contact with these electors to ask them whether or not they voted, there is nothing to suggest that they did not vote as they were lawfully entitled to do.
Indeed, 11 of those persons were located, but because two visits had been paid to their residences without finding them at home, it is suggested presumably that they may have been attempting to avoid being interviewed. I am unprepared to draw such an inference in the absence of any other evidence.
I am unpersuaded on the evidence that there is any basis upon which a finding could be made that the name of any one of those 14 electors was used improperly by some other person to cast a vote in the Mundingburra election.
Category 5
In this category there are 10 electors who have been located. They were declaration voters and efforts have been made to compare the signatures on the declaration envelopes with the signatures on statements which they have signed.
It is contended then that a comparison of the signatures indicates that the voters interviewed are not the persons who signed the declaration forms used in the process of casting the challenged votes.
I have looked at the various signatures and compared them. I am quite unpersuaded that there is such a difference between the signatures purporting to be the signatures of the electors on the declaration forms and the signatures placed upon statements given to persons interviewing them that it is possible to conclude that in any of the cases the signatures were not made by the same persons. Indeed, looking at the signatures it is my view that more probably than not in most cases, and almost certainly in the others, that the signatures on the declaration forms were made by the same persons who signed the statements for the persons who eventually located them.
No effort was made to obtain assistance from any handwriting expert. I must just do the best I can comparing the signatures. One must keep in mind that few people do not exhibit significant variations in their signatures depending upon whether they are standing up or sitting down, the state of their health, their mood, and their general feeling of well being or unhappiness when they sign.
I am unpersuaded that personation has been established with respect to any of the 10 electors comprised within category 5 of the electors particularised under ground 5(b) of the petition.
The evidence does not persuade me that any particular of personation under ground 5(b) of the petition has been established.
BASIS (3) - DECLARATION VOTES NOT COUNTED
PETITION GROUND 5(C) (15 VOTES)
This basis of complaint is to be found in ground 5(c) of the petition. There are 15 such votes relied upon by the petitioner. The identity of 11 persons whose declaration votes were not counted by the Commission were disclosed by the Commission of its own accord. In Australian Electoral Commission v. Lalara (1994) 53 FCR 156 at 166 O'Loughlin J commended the petitioner for bringing to the attention of the Court facts which arguably constitute official errors. The Commission has performed that duty in this case and the information disclosed provides assistance to the petitioner.
Some time was spent considering these matters and it is convenient to deal firstly with matters where it seems clear enough that declaration votes were not counted by reason of errors on the part of officers of the Commission. In nine cases it seems reasonably clear that declaration voters were in fact disenfranchised by reason of official error.
(1) Chadwick
In this case, the declaration form signed by the elector was not witnessed by the Commission officer at Cardwell who had obviously filled in the form for the signature of the elector where designated.
(2) Lysaght
In this case the issuing officer at Charters Towers purported to witness the signature of the elector when in fact her signature had not been put on the declaration. The elector says that she was not even shown the envelope or given any opportunity to sign it and her assertion is not contradicted by the issuing officer.
(3) Macaulay
This elector was correctly enrolled by the name and address set out in the declaration but for some reason the vote was not counted.
(4) McLaughlin
Similarly, this elector was correctly enrolled by name and address set out in the declaration but the vote was not counted.
(5) Pendergast
This voter correctly filled out the declaration with reference to both name and address.
However her name had been incorrectly recorded in the electoral roll as Pemndergast. Her address had been correctly enrolled. Because of the misspelling of the name on the electoral roll, the person processing the postal votes and declaration forms failed to locate this elector on it and consequently the vote was not counted.
This was a clear official error which had the effect of disenfranchising that voter.
(6) Rogers
In this case also the declaration envelope was not signed by the elector in the place indicated, although the issuing officer at Kirwan polling booth purported to witness his signature. The elector states that he was told that he was no longer on the roll for Mundingburra. In fact however he was issued with the declaration vote for Mundingburra but he failed to sign it even though the issuing officer purports to have witnessed the signature.
This is a clear case of official error.
(7) Rowse
The elector is enrolled in the surname of Rowse. However the declaration spells her name Rouse. In all other respects the enrolled particulars are the same as those on the declaration. The declaration was obviously filled in by an issuing officer at a polling booth at Thuringowa and the likelihood is that it was simply his or her error in failing to ensure that the elector's name was spelled correctly; the elector's name was correctly spelt and her address correctly recorded on the electoral roll.
In my view this is a case of official error on the part of officers of the respondent and it was not really contended to the contrary on behalf of the first respondent.
(8) Thomas
In this case the elector was correctly enrolled by way of name and address with the Christian name, Anthony.
The declaration is filled in to show his first name "Tony". In all other respects the particulars contained in the declaration form are identical with those on the electoral roll.
In my view, even if the elector had told the issuing officer at Charters Towers that his first name was "Tony", that person ought to have checked to see whether his full Christian name (under which he might be expected to be enrolled) was "Anthony". Similarly the person processing the declaration vote, seeing the name "Tony" ought to have checked the electoral roll to make sure that the elector was not enrolled under the name "Anthony".
In my view this elector was disenfranchised as the result of official error or omission.
(9) Thompson
In this case the elector correctly spelt her name Thompson and specified the correct enrolled, residential address. However her surname had been misspelt on the roll as "Thomspon". When the officer processing the declaration votes failed to find the elector's name in alphabetical sequence on that roll, the vote was disallowed.
In my view there were two official errors - (i) misspelling the name on the electoral roll - this was probably a typographical or uncorrected printer's error and (ii) the failure on the part of officer processing the declaration form, having regard to the obvious or at least very unusual transposition of "ps" to "sp", failing to check under the name Thompson. If this had been done, the error in the printing of the roll would have been clearly detected and this voter would not have been disenfranchised. In my view, this voter was disenfranchised by official error.
(10) Alberdi
In this case the declaration vote envelope was obviously filled in by an issuing officer of the Commission. The name of the elector was wrongly spelt A-L-V-E-R-D-I.
The issuing officer witnessed the signature of Mr Alberdi and it seems to me clear that the signature is A-L-B-E-R-D-I. It should not have been mistaken for A-L-V-E-R-D-I. In my view the issuing officer was in error in incorrectly spelling the name of this elector. Even if difficulties of pronunciation explain the error, the error was demonstrated by the signature appended by the voter to the declaration envelope. The issuing officer was at a polling booth at Emu Park. It is made clear in the procedural manual issued to returning officers that special care needs to be taken with a person who has difficulty with the English language and who cannot be clearly understood. Indeed officers are instructed to pass a paper and pencil to the voter and request him/her to write clearly his/her name and address.
Obviously this was not done in this case and in my view Mr Alberdi was denied a vote by reason of error or omission on the part of the issuing officer at Emu Park.
(11) Doyle
In this case Mr Doyle was issued a declaration vote at Ayr. His correct name and address was written on the envelope. Due to error of the Commission his name however had been deleted from the electoral roll in the belief that he had died.
Under s.138(2)(b) it is provided -
"2. In a proceeding in relation to the petition, the Court -
(a). . .
(b)must not inquire whether the electoral roll, or any copy used at the election, was in accordance with this Act."
In my view while there was undoubtedly an error on the part of the Commission in the maintenance of correct details on the electoral roll relating to this elector which in effect deprived him of a vote that is not an error which may be established except by inferring that the roll was not kept in accordance with the Act. This was not merely a mistake of spelling or address etc. appearing on the face of the roll, it was an omission altogether of the name of an elector from the roll.
The petitioner is unable to rely upon this particular of ground 5(c) by reason of s.138(2)(b).
(12) Guirao Ferez
This elector was issued a declaration vote at Brinsmead. He was properly enrolled as "G-U-I-R-A-O F-E-R-E-Z, Michael". His address recorded on the roll was that recorded on the declaration envelope.
However, the issuing officer, instead of writing G-U-I-R-A-O F-E-R-E-Z as surname and Michael as Christian name, wrote F-E-R-E-Z as surname and Michael Guirao as two Christian names.
It is clear from the application for enrolment that this elector was born in Spain in 1942. He was naturalised in Australia in 1977.
As I have already indicated with respect to the voter Alberdi issuing officers are instructed to take particular care to have persons who are thought perhaps to have difficulty with the English language write out their names and addresses. Obviously at the time the elector was enrolled in November 1994 the officer filling out the form for him then had no problem in doing it correctly.
I am persuaded that this voter was denied a vote due to the error of the issuing officer in incorrectly misspelling his surname.
(13) Hockaday
This elector was enrolled under the name H-O-C-K-A-D-A-Y at the address which was filled in on the declaration envelope. She had the vote issued at Charters Towers and the issuing officer spelt her name Huckaway. Looking at her signature it appears to more resemble H-U-C-K-A-W-A-Y than it does the enrolled surname Hockaday. I am unpersuaded that the issuing officer at Charters Towers in the circumstances made any error. Looking at the signature of this elector one wonders whether in fact if she was the enrolled elector the enrolled name of Hockaday may not be incorrect.
A careful comparison of the signatures on the enrolment form and the declaration envelope leads me to suspect that the same person did not make both signatures. In fact the two signatures do not bear even a slight resemblance one to the other. This was not a matter however that was canvassed in argument.
Stated shortly, to the extent that the declaration vote would have been a valid one had the surname Hockaday been written in instead of the surname Huckaway I am unpersuaded that any error has been shown on the part of the issuing officer or any other officer of the Commission.
(14) Smith
This elector was enrolled under the name of Christine Leslie Smith. Her former surname was recorded as "Flanagan".
This elector obtained a postal vote at Mt Archer. The details on the declaration vote envelope were obviously filled in by the issuing officer from information given to him by the elector. The address that she gave was the same as her enrolled address. The problem is that she specified her surname to be Flanagan.
The vote was not counted because nobody by the name of Christine Leslie Flanagan was enrolled for the electoral district.
One can only speculate at the reason for the elector choosing to use what she described as her former surname when she was enrolled as an elector under the name Smith.
I am unpersuaded on the material that any error on the part of the issuing officer may be inferred. Similarly I am unpersuaded that any error may be inferred on the part of persons checking the electoral roll against the information on the declaration envelope to ascertain whether this elector was entitled to vote.
(15) Wilson
This elector was enrolled under the name Jillian Elizabeth Wilson and was recorded on the roll by elector sequence number 21559.
The declaration form was filled in by an issuing officer at Tully but the elector's Christian name was spelt Gillian instead of Jillian.
I have looked at the signature of this elector and it appears to be signed G. Wilson.
The evidence is silent as to whether perhaps this elector sometimes spelt her Christian name with a J and sometimes with a G. She certainly seems to have signed the form G. Wilson rather than J. Wilson.
I am unpersuaded that any error on the part of the issuing officer has been demonstrated in this case. On the other hand, the elector's enrolled surname and second Christian name and address were recorded only thirteen entries below the place where her enrolment would have been recorded had her Christian name been recorded as Gillian.
The question then is whether in those circumstances the persons searching for the elector's enrolment did so with sufficient care having regard to the fact that the declaration form correctly spelt the rest of her name and indeed recorded the address at which she was enrolled.
Undoubtedly had the name on the declaration been within only one or two places of the elector's enrolled name in the sequence it might be contended that proper care was not taken by the persons checking the declaration form. On the other hand the name Wilson is not an uncommon name and there must be a limit to the inquiry required of persons checking particulars inserted on a declaration envelope to ensure that the voter concerned is eligible to cast a vote.
On balance I am unpersuaded in this case that it could properly be inferred that persons checking the declaration envelope against the electoral roll were guilty of an omission or error in failing to check further than they obviously did. Some people may from their experience be aware of different ways of spelling the Christian name of this elector. But I am unpersuaded that that is a matter of such general knowledge as to result in a failure to check amounting to an error or omission of the sort which the petitioner seeks to establish.
All told then I find that eleven electors were denied a vote by reason of error or omission on the part of officers of the Commission.
BASIS (4) - DENIAL OF VOTES TO 22 AUSTRALIAN DEFENCE FORCE PERSONNEL SERVING IN RWANDA
PETITION GROUND 5(D) (22 votes)
Whether or not upon the facts the failure of army personnel in Rwanda to cast valid votes for the election in Mundingburra resulted from error or omission on the part of the Commission involves determination of what to my mind are quite difficult points of statutory construction. For reasons which are not obvious there are two categories of electors specified who may make a declaration vote under s.105(1) of the Act: "ordinary postal voters" under s.105(2) and "special postal voters" under s.105(3). It is unnecessary at this stage to make any attempt to distinguish between the characteristics of postal voters necessary to put them into one or both categories of "ordinary postal voter" and "special postal voter".
The importance of the distinction however emerges when one turns to s.110 of the Electoral Act which relates to the making of declaration votes by postal voters.
Under s.110(1) an ordinary postal voter may request the Commission in writing to send to him or her a ballot paper and declaration envelope and under s.110(2), subject to time constraints, the Commission must post a ballot paper and declaration envelope as requested.
However, under s.110(3) the Commission "must as soon as practicable after the issue of the writ for an election, post a ballot paper and declaration envelope to each special postal voter."
On the facts of the present case it appears that the Commission treated the defence personnel as "ordinary postal voters" and took steps to forward to them through the Defence Forces Administration, applications for them to sign requesting postal votes. If in fact by statutory definition, the service personnel come within the category of "special postal voter" - whether or not they also come within the category of "ordinary postal voter" - then it is arguable that the Commission failed to comply with the mandatory direction in s.110(3) of the Electoral Act.
On the unusual facts of this case it is arguable that even if "ordinary postal voters", the personnel were in fact deprived of the receipt of postal votes eventually sent to them by the Commission by an error or omission for which the Commission is responsible.
There would seem to be no argument between the parties to this hearing that if the service personnel were deprived of postal votes by official error or omission that would be a sufficient if not compelling ground in the circumstances to order a new election.
However, it is contended strongly on behalf of the second respondent that the service personnel were not "special postal voters" but only "ordinary postal voters" and that the Commission was correct in sending applications for postal votes and declarations to them for their completion, rather than simply sending them ballot papers and declaration envelopes which it would have been obliged to do had they been "special postal voters".
This contention is also advanced by the first respondent, the Electoral Commission.
For the petitioner it is contended that even if upon the proper construction of the Act the personnel were only "ordinary postal voters' and not within the narrower category of "special postal voters", nevertheless that legal conclusion would not prevent the exercise of the discretion to order a new election given under s.136(1) of the Act.
It is further contended that the Commission is responsible for error or omission on the part of the Australian Defence Force ("ADF") which resulted in the personnel being deprived of a vote even if they are to be considered "ordinary postal voters".
It is contended for the second respondent, that service personnel were deprived of a vote, not by reason of any error or omission on the part of the Electoral Commission, but if there were any error or omission by anybody, by one on the part of ADF for which the Commission is not responsible.
For reasons I have already given I proceed on the basis that I am not given a wide unfettered discretion to order a new election under s.136(1) of the Act, in the event that the facts relied upon are not brought within the category of official error or omission, which had the effect of disenfranchising voters.
The writ for the 1995 Queensland State general election issued on 20 June 1995 pursuant to s.78 of the Electoral Act.
At the time of the issue of that writ, there was in force a protocol or formal arrangement between ADF and the Electoral Commission of Queensland recorded in a letter signed by the Director-General Service Personnel Policy, Department of Defence in Canberra. That letter reads as follows:"15 April 1994
Electoral Commission Queensland
GPO Box 1393
BRISBANE QLD 4001
Dear Commissioner,
NOTIFICATION OF IMPENDING ELECTIONS
In order to ensure that Australian military personnel are not disenfranchised, it has been the practice of all Australian Electoral Commission Offices to notify the Department of Defence of impending elections some weeks in advance of those elections. However, it has been brought to the attention of Headquarters Australian Defence Force, by representatives of the Services, that not all election notifications are being received or alternatively, that notification is being sent directly to only one Service.
To ensure that all Service personnel can be notified of the requirement to vote in elections and by-elections it is requested that all advance notices be sent to the following address:
Director General Service Personnel Policy
Headquarters Australian Defence Force
Russell Offices (F-3-56)
PO Box E33
Queen Victoria Terrace
CANBERRA ACT 2600
Yours sincerely,
C.E.BRADFORD
Air Commodore
Director General
Service Personnel Policy
On behalf of the Electoral Commissioner a formal reply was made dated 10 May 1994 in the following terms:
"10 May 1994
Director General Service Personnel Policy
Headquarters Australian Defence Force
Russell Offices (F-3-56)
P O Box E33
Queen Victoria Terrace
CANBERRA ACT 2600
Dear Sir,
Re:NOTIFICATION OF QUEENSLAND STATE ELECTIONS AND BY-ELECTIONS
Receipt is acknowledged of your letter of 15 April 1994 regarding the address to which advice is to be forwarded regarding the above.
Records of the Commission have been noted accordingly.
Yours faithfully,
(R C Stockwell)
for ELECTORAL COMMISSIONEROn 23 June 1995 (3 days after the issue of the writ for the 1995 State General Election,) the Electoral Commissioner gave a notification in terms of the protocol constituted by the letters of 15 April and 10 May 1994, to which I have already referred in the following terms:
"23 June 1995
Director General Service Personnel Policy
Headquarters Australian Defence Force
Russell Offices (F-3-56)
P O Box E 33
Queen Victoria Terrace
CANBERRA ACT 2600
Dear Sir/Madam,
Re: Queensland State General Election - 15 July 1995
The following dates have been announced for the Queensland State General Election:-
Issue of Writ - Tuesday, 20 June 1995
Rolls Close- 5 pm, Saturday, 24 June 1995
Nominations Close - 12 noon, Tuesday, 27 June 1995
Pre-poll (in person) Voting Commences - Monday, 3 July 1995
Polling Day - Saturday, 15 July 1995
Enclosed is a supply of Applications for a Ballot Paper (Form 12). Would you please make such forms available to Defence Force Personnel wishing to arrange for a declaration (postal) vote for the election.
Applications for a declaration (postal) vote must be completed and either lodged or sent by facsimile transmission to the Electoral Commission of Queensland prior to 6 pm on Thursday 13 July 1995.
Your co-operation in these matters is appreciated.
Yours faithfully,
(R C Stockwell)
for ELECTORAL COMMISSIONER
It is clear from the terms of the letter of the first respondent of 23 June 1995 that the view then taken was that service personnel were "ordinary postal voters" who to make a valid declaration vote would require compliance by the Commission with the time constraints of s.110(2) of the Electoral Act.
The history of events following that notification to ADF of the impending election is contained in a memorandum of Mr Wiltshire, Manager of Elections, for the first respondent dated 19 July 1995. There is no dispute on the matters contained in that report and I proceed on the basis that the facts stated in it are correct.
It emerges from that report that the Commission forwarded 2000 postal vote application forms with its letter to ADF dated 23 June 1995.
Within a week of the dispatch of those application forms an officer of ADF in Canberra advised that it would make facsimile copies of the application forms available to all Defence Service personnel who might require such an application and that arrangements would be made to return the 2000 application forms sent to Canberra under cover of the letter of 23 June 1995.
Later a box containing all those application forms was received by the Commission from ADF.
It was assumed by the Commission that any personnel serving in Rwanda with ADF who sought to vote at the Mundingburra Election (and elections in other electorates) would be catered for "by way of advice and necessary forms" from ADF.
It is clear that ADF was informed by letter of 23 June 1995 that the polling day for the election was Saturday, 15 July 1995 and that any application for a declaration (postal vote) had to be received by the Electoral Commission prior to 6 p.m. on 13 July 1995.
Although this advice complied with the time constraints expressed in s.110(2) of the Act for applications made by ordinary postal voters, it is abundantly clear that if the service personnel in Rwanda were properly categorised as "ordinary postal voters", receipt by the Commission of application forms on 13 July just prior to 6 p.m. would not leave much time for the Commission to put service personnel in Rwanda into possession of a ballot paper and declaration form between that time and close of the polls at 6 p.m. on 15 July so that the vote might be cast in compliance with the Act.
Apparently on 6 July 1995 the Commission received a telephone call from an officer "at Land HQ Victoria Barracks in Sydney" seeking information as to how the Queensland members of the Australian contingent in Rwanda would arrange postal votes for the coming election. He advised that to his knowledge the Rwandan contingent had not received the notification which the Commission had been informed it would receive and gave the Commission a telephone number so that it might make direct contact by telephone with personnel in Rwanda.
On 7 July 1995 contact was ultimately made with a member of ADF in Rwanda regarding Queensland members voting in the Queensland election - which at this time was 8 days away. Up until this stage apparently no notification of the forthcoming election had been given and no application forms had been made available to members of the force in Rwanda to apply for postal votes as "ordinary postal voters".
At this stage, Mr Wiltshire asked for a list of members of the Rwandan contingent together with address details and a signature for later scrutiny procedure and it was agreed that this should be provided.
All subsequent dealings between the Electoral Commission and ADF took place between the Commission and Land Headquarters of ADF in Sydney.
It was not until 11 July 1995 - four days before election day and well before 6 p.m. on 13 July 1995 that all the requested applications and lists had been forwarded from ADF to the Commission. Immediately upon their receipt the Commission examined the applications for postal votes and presumably the list of applicants and determined the various Queensland electoral districts in respect of which each of the applicants was enrolled. Correct ballot papers and declaration forms were issued in respect of each of the service personnel who had signed the application forms - purportedly in pursuance of s.110(2) of the Electoral Act.
A total of 102 postal votes were issued for members of the services contingent in Rwanda. Of those, 22 were registered as electors for the electoral district of Mundingburra.
Due to the political situation in Rwanda it was decided that there might be problems in having the ballot papers and declaration forms delivered to the electors on duty in Rwanda by commercial carrier in time to have them cast valid votes prior to 6 p.m. on 15 July 1995 Australian time. At the suggestion of an officer at Land Headquarters of the Service Division the Commission decided to have the ballot papers and declaration forms sent by courier to Sydney so that those could be delivered "by way of special arrangements by military personnel". The view was expressed that the material would be in Rwanda and with the Australian personnel involved prior to Saturday, 15 July 1995. Accordingly, on 11 and 12 July 1995 parcels containing ballot papers and declaration forms were airfreighted from the Commission in Brisbane to the Land Headquarters of ADF in Sydney.
There was placed in evidence a brief prepared by an officer of ADF concerning the service of ballot papers and declaration forms on electors among the personnel in Rwanda who were entitled - indeed required - to vote in the State Elections. It emerges from that material that "a number of ballot forms were sent to LHQ and were dispatched by courier to the contingent on Wed 12 July with delivery expected on Friday 14 July. They failed to arrive and consequently members were unable to vote".
On 17 July 1995 an officer of ADF in Sydney advised Mr Wiltshire that the ADF courier assigned to send the ballot papers to Kigali, Rwanda had mistakenly air freighted them to Belgium instead of sending them by United Nations Air Transport to Kigali. A commercial flight scheduled to fly from Brussels to Kigali was cancelled and so the ballot papers were not delivered before close of voting in Queensland.
In the course of the ADF brief, to which I referred, it is observed:"The fact that the Electoral Commission was pro-active in this matter and gave the ADF plenty of time to allow members to cast their votes leaves us very vulnerable to criticism. There is little excuse for not ensuring contingent members could vote in this very tight election and valid questions could be asked about the tardiness of our efforts to get the form to Rwanda by international courier ...
There seems little point in being defensive on this matter. I suggest we acknowledge that we could have handled this matter much better and that procedures are being reviewed to ensure ADF members on operation of deployment are able to vote in elections."
I have outlined sufficiently I think the events surrounding the failure to get ballot papers to the defence personnel in time to permit them to vote. To highlight the importance of determining whether those electors on military service in Rwanda should be categorised as "ordinary postal voters" as defined in s.105(2) of the Electoral Act, as they obviously were so categorised by the Commission or whether they should be categorised as "special postal voters" as defined under s.105(3) of the Act, it is clear that if they are properly categorised as special postal voters, s.110(3) of the Act placed an obligation on the Commission in these terms:
"(3) The Commission must, as soon as practicable after the issue of the writ for an election, post a ballot paper and declaration envelope to each special postal voter."
A special postal voter is under no express statutory obligation to make an application for a postal vote of the sort which the Rwandan personnel were asked to make. That express obligation is imposed only on "ordinary postal voters" under s.105(2). It is contended by the respondents that such an obligation must by implication be imposed on "special postal voters" also.
It is quite clear on the material that had ballot papers and declaration forms been sent to service personnel instead of applications for such documents they could easily have cast valid votes prior to close of election at 6 p.m. on 15 July 1995.
It seems equally clear that had the ADF courier not made a mistake and consigned the ballot papers to Belgium instead of directly to Kigali by United Nations Air Transport, the ballot papers should have arrived in time to enable the service personnel to cast valid votes prior to 6 p.m. on 15 July 1995.
I turn then to consider the first critical question - whether or not upon the facts proved the error or omission on the part of the courier for the Defence Forces which resulted in the postal votes and declaration forms not being delivered in time for use, was one which it may be said occurred in the course of the conduct of the election which led to disenfranchisement of the Rwanda personnel and for which the Commission is responsible.
I consider this question first because it is conceded by the respondents that the Rwanda personnel were within the definition of s.105(2) certainly "ordinary postal voters". It is not contended by the petitioner that they were not "ordinary postal voters". The issue between the petitioner and the respondents is whether they were also "special postal voters" in respect of which the Commission's obligations are defined in s.110(3).
If however they be treated as "ordinary postal voters" the question then is whether upon the facts the Commission which admittedly did not comply with the requirements of s.110(2) of the Act to "post a ballot paper and declaration envelope to the elector" is responsible for an error or omission which led to disenfranchisement of the Rwandan personnel.
It is clear beyond argument upon all the material that the Commission treated the personnel as "ordinary postal voters" and indeed by adopting the protocol with ADF recorded in the letters of 15 April and 10 May 1994, treated them the way "general postal voters" are treated under. s.186(1) of the Commonwealth Act.
The facts which I have already stated show that having received the duly completed application for postal votes from the Rwandan service personnel the Commission acted with commendable haste in processing ballot papers and declaration forms to be forwarded to them. After discussion with ADF which undertook forthwith to dispatch those voting documents to its personnel in Rwanda by air freighting them from Sydney to Kigali on transport available to it, the Commission airfreighted those papers to ADF in Sydney on 11 and 12 July 1995. This step was taken well before the time by which the Commission was obliged to "post" the documents to the personnel under s.110(2) - which was by 6 p.m. on 13 July 1995.
It is clear that the Commission decided to follow the suggestion of ADF and entrust the ballot papers and declaration forms to it for transport to Kigali rather than "post" those directly to the personnel as required by s.110(2) of the Act. It undoubtedly undertook this alternate method of conveying the voting papers to the personnel in Rwanda upon reasonable grounds, having regard to the advice it received from ADF that it was offering to convey those documents to the Rwanda personnel because that would be the best way of securing their delivery. The political situation in Rwanda was unstable and it was obviously thought that delivery by official ADF courier was more reliable than might be delivery by ordinary post. There was no evidence given as to the circumstances which may have made delivery by ordinary post unreliable, but it is not hard to envisage problems which may have been anticipated in making such delivery.
No doubt the Commission could have simply performed its statutory obligation under s.110(2) of the Act and taken the attitude that having done that it would not be responsible for any deficiency in the postal service between Australia and Rwanda. However, quite commendably in my view the Commission was more concerned to take what steps were possible to effect delivery of the papers to the personnel in time to allow them to cast valid votes than it was to merely perform perfunctorily the obligations imposed upon it under s.110(2). The error or omission made by the ADF courier in mistakenly putting the voting papers onto the wrong aeroplane, which resulted in their non delivery, was freely admitted in the course of the hearing. It was contended however for the second respondent that that error could not be treated as one for which the Commission was responsible.
For the second respondent it was contended that in making the arrangement which it did, the Commission merely treated ADF as the agent for the Rwanda personnel to carry the voting papers from Sydney to Kigali in such a way that they would arrive as expected on Friday, 14 July - the day before polling day. If ADF was not to be treated as the agent for the personnel to receive and carry the voting papers for them - and upon the evidence there are difficulties in finding such an agency - nevertheless as far as the Commission was concerned, ADF was in no different relationship with it than would have been the postal authorities in Australia and perhaps overseas, should the papers have been posted, pursuant to s.110(2) of the Act.
The problem with this contention is obviously that had the voting papers been posted, the Commission would have performed in full the obligation imposed upon it under s.110(2). It would be quite unnecessary in that situation to consider whether or not postal services should be treated as the agent of the Commission for the purpose of determining whether the Commission was responsible for any error or omission on their part. This would be so because the obligation of the Commission under s.110(2) is completely performed when the ballot papers and declaration forms are posted.
Counsel for the Commission very properly conceded in argument that he could not submit that it was not open on the evidence to take the view that the Commission was responsible for the error of the ADF courier. He did submit however that the more obvious finding would be that the courier was acting only for ADF which in fact was acting on its own behalf - whether or not it was also acting as agent for its personnel.
Looking at the matter in broad terms, I take the view that it is not helpful in determining whether the Commissioner is responsible for an error or omission, which has disenfranchised electors, to embark upon a minute and detailed analysis of the legal relationships between the personnel in Rwanda, ADF and the Commission.
If not contrary to the express directions of s.134(2) not to have regard to legal forms and technicalities, to do so would certainly be to proceed in a way which is contrary to the spirit of that provision.
The evidence satisfies me that the efforts to get voting papers to the ADF personnel in Rwanda prior to 6 p.m. on 15 July 1995 Australian time, was a joint endeavour by ADF and the Commission. Both organisations were understandably anxious to do everything reasonably possible to ensure that the franchise of the Rwanda personnel was secured. It was the sort of joint effort contemplated by the terms of the protocol to which I have referred.
It cannot be said in my view that in airfreighting the postal voting papers to the Defence Force Headquarters in Sydney for transport to personnel in Kigali, the Commission "posted" those papers.
In answer to the rather technical argument advanced by the respondents that ADF at the time it made the error or omission resulting in disenfranchisement of the Rwanda personnel was acting not as the agent of the Commission but rather as the agent for its personnel or merely on its own behalf, it must be observed that had the Commission posted the voting papers by 6 p.m. on 13 July 1995 as instructed by s.110(2) of the Act, instead of entering into the arrangement which it did with ADF which resulted in the failure of the papers to arrive in time for voting, they may indeed have arrived. The evidence does not show that they could not have arrived, only that there were significant risks due to the local situation in their arriving in time for voting. Had the papers been posted, even if they did not arrive, their non arrival could not conceivably have been argued to have resulted from any "omission" to perform its statutory obligations under s.110(2) on the part of the Commission.
By deciding not to post the voting papers in accord with s.110(2), the Commission certainly omitted to comply with the obligation imposed upon it by that section. It is clear that it was due to an avoidable error on the part of the ADF courier, that the method of delivery chosen by the Commission instead of effecting the posting specified under s.110(2) was unsuccessful. It follows then that it was in the course of the implementation or working out of the arrangement which the Commission chose to substitute for simply posting the voting papers as required by s.110(2), that the Rwanda personnel were deprived of a vote. There is no evidence upon which it could be asserted that the error or omission by the ADF courier did not place the Rwanda personnel in any worse position than they would have been in had the Commission merely posted the voting papers. There is no evidence that they may not have been delivered on time had they been posted. There was certainly a significant possibility that they would not have been delivered in time if posted. However, it is clear upon the evidence that had it not been for the mistake made by the ADF courier in choosing the wrong method of conveying the voting papers to Kigali they could in fact have been delivered in time.
In my view, the effect of the mistake made by the ADF courier in misdirecting the voting papers, was to make him and therefore ADF responsible for an error or omission which deprived the personnel in Rwanda of votes.
The Commission substituted this method of delivery of voting papers to the personnel who had applied for them for the method of delivery required by s.110(2); in essence it authorised ADF to deliver voting papers on its behalf to the personnel in Rwanda instead of simply posting those papers as directed by s.110(2).
Whether or not that act of authorisation of ADF and the delivery of the voting papers to it for delivery constituted ADF the "agent" of the Commission to effect delivery of them in Rwanda is not critical to the determination of whether the Commission is responsible for the error or omission of the ADF courier resulting in non delivery.
It was the method adopted by the Commission for sending voting papers to ADF personnel in Rwanda in substitution for the method directed by s.110(2) that led in fact to the failure of the papers to arrive in time to be used for voting.
To the extent that the failure of the voting papers to arrive in time is attributable to the error or omission of the ADF courier, in my judgment the Commission must bear the same responsibility as it would if one of its own officers had made a similar error in attempting to properly "post" those voting papers pursuant to s.110(2) or indeed in attempting to substitute some other method of delivery for that directed in that section.
I turn now to consider what seems to be the second critical question - whether or not upon the facts proved the members of ADF in Rwanda at the time the writ for the election issued on 20 June 1995 and subsequently come within the category of "special postal voters" as defined in s.105(3) of the Act.
That question must be answered by determining whether those members of the Defence Forces who were registered on the electoral roll for the Mundingburra electorate were electors "whose real place of living is not within 15 km by the nearest practicable route of a polling booth". The Mundingburra electoral district is of irregular shape. The distance separating its most eastern from its most western extremity is about 9.6 km. The longest distance between northern and southern boundary of the district at right angles to its east - west centre line is 3.75 km. There were 10 polling booths in the electorate.
The problem is not made easier by the definition of "ordinary postal voter" under s.105(2)(a) as including "an elector who will not, throughout ordinary voting hours on polling day, be within 8 km, by the nearest practicable route, from a polling booth". Having regard to these so called definitions, members of the defence force in Rwanda at the material time might be placed within the category of both ordinary postal voter and special postal voter.
Prima facie and in the absence of assistance from the terms of the Electoral Act itself, there seems no compelling reason to find categories of "special postal voters" and "ordinary postal voters" mutually exclusive. If one looks only at the statutory definitions contained in ss.105(2) and (3) of the Act, it becomes apparent that ordinary postal voters are electors who apply for a postal vote in anticipation of the circumstances defined in s.105(2) operating on polling day. One gets the impression, looking at the time constraint for dealing with applications for ordinary postal votes under s.110(2) that the legislation contemplates that ordinary postal voters will normally be living or resident within the electorate and wish to cast a postal vote in anticipation of the occurrence of some event within s.105(2) preventing the convenient casting of a vote at a polling booth on polling day.
On the other hand, the definition of "special postal voters" in s.105(3) takes into account only the one circumstance of inconvenience in an elector attending a polling booth, existing at the date the writ for the election issues: the distance of the place of living of that voter from a polling booth on polling day. Reference to a polling booth whether "an ordinary polling booth or a mobile polling booth" is not restricted to polling booths within the electorate. An elector may cast a vote in respect of his or her electoral district at a polling booth outside that district. Reference to "polling booth" in s.105 refers to all polling booths within the State of Queensland. An elector seeking to vote outside his/her electorate of course might have to make a declaration vote as prescribed by s.106 of the Act.
Ordinary - Tanti - Hermit Park (2 votes)
There are two votes in this envelope. In one of them the voter has ticked each of the boxes and has then over the tick written 1 2 3, preferring Mr Tanti. On the other ballot paper, the voter has similarly written 1 2 3 in favour of Mr Tanti over other figures which are more or less obliterated. Both were accepted as formal votes. I rule that each is a formal vote for Mr Tanti.
Electoral visit votes - Davies (3 votes)
Each of these ballot papers was accepted as a formal vote in favour of Mr Davies. On one, the numbers 1 2 3 are written beside and after the names of each of the candidates listed in that order. In the other two, there is a single tick written in one and in the other a Y or similar sort of mark in the box beside the name of Mr Davies. There are no writings in any of the other boxes. The three votes were accepted as formal.
I rule that each of the votes is a formal vote in favour of Mr Davies.
Declaration institutions - "Own district"(3 votes)
Two of these ballot papers clearly indicate a preference for Mr Tanti. The figure 1 written in the box beside Mr Tanti's name in each of them is a little unclear. In one it is something like two figures 1 written side by side. In the other the one has been overwritten by a another one to give it prominence. In my view both of those votes are formal votes in favour of Mr Tanti. They were accepted as such.
The third vote in this collection has a marking only in the box beside the name of Mr Davies. It is substantially like a heavy figure one, although it could be a Y shape. In my view this is clearly an indication of the preference of the voter for Mr Davies. It was accepted as such.
Declared institution votes - Other districts (1 vote)
In this envelope there is a single vote. There is a tick in the box beside the name of Mr Davies. It appears to have been written over a figure one. It is the only mark made in any box indicating any sort of preference for any of the candidates. It was accepted as formal.
I rule that vote is a formal vote in favour of Mr Davies.
Ordinary - Davies - Court house (1 vote)
In this envelope there is a single ballot paper. The only writing on it is something that looks like a heavily inscribed figure 1. That figure is at a slight angle to the perpendicular. It is written over another line of more acute angle to the perpendicular. It is the only writing on the paper. It was accepted as formal.
I rule that it is a formal vote in favour of Mr Davies.
Postal votes delivered before midnight 15.7.95 Davies (1 vote)
This ballot paper is marked with two figures 1 side by side in the box beside the name Davies which has been written in. The figures 2 and 3 are put in the boxes beside which the names Tanti and Cumming respectively have been written.
The vote was accepted as formal.
It clearly indicates an intention to give preference to Mr Davies and I rule that it is a formal vote.
Ordinary- Cumming - Cranbrook (1 vote)
This ballot paper is numbered 1 Cumming. The figure 1 is in the box beside the name Cumming.
The name Davies and Tanti are both scribbled out but then as an afterthought to the left hand side of the boxes the figures two and three are written beside the boxes Tanti and Davies respectively. The vote was accepted as formal with respect to Cumming.
I rule that the ballot paper sufficiently indicates the intention of the voter who so marked it prior to the time he put the paper into the ballot box to indicate the preference of the voter to be 1 Cumming, 2 Tanti and 3 Davies.
The result is that Tanti should have been given the second preference of this vote when preferences were apportioned.
Ordinary- Davies - Pimlico (1 vote)
This ballot paper has a mark within the box beside the name of Davies. It looks substantially like a tick over which has been written a cross which is almost the shape of a T.
There are no other marks on the ballot paper. It was accepted as formal.
I rule that this ballot paper sufficiently indicates the intention of the voter to vote for Davies and was correctly accepted as a formal vote cast for him.
Ordinary- Tanti - Heatley (2 votes)
There are two ballot papers in this category. The first ballot paper has marked in the boxes X Tanti, Y Cumming, Z Davies. There are no other marks written on the paper. It was accepted as a formal vote for Tanti.
Had the marks been simply X Davies, Y Tanti and Z Cumming for reasons I have already given, I would rule the ballot paper informal. However in this case the Z has been placed in the box beside the name Davies, which appears first on the paper, then X in the box beside the name Tanti next on the paper and then finally Y in the box beside the name Cumming last on the paper.
To some extent I suppose it might be inferred that the voter regarded Tanti as preferable to Cumming or Davies. However, in my view, for reasons which I have already given, this vote indicates that the intention of the voter was really to protest and indicate by his markings the degree to which he found each of the candidates unacceptable. In my view the marking does not indicate a preference for a candidate. It rather indicates the voter's lack of the esteem of all candidates with an indication that his lack of esteem for Tanti is marginally less than that in which the other two are held. I rule that vote informal.
On the second paper the boxes have been filled in by the voter with numbers. Initially a 2 was obviously written in the box beside the name Tanti however that has been overwritten heavily with a 1, and 2 and 3 are then written in the other boxes. It was accepted as a formal vote. I rule that it is a formal vote in favour of Tanti.
Ordinary - Davies - Hermit Park (1 vote)
This ballot paper was completed by the voter writing in two figures 1 besides the name Davies, a figure 2 beside Tanti and a figure 3 beside Cumming. It was accepted as a formal vote. The way the paper is completed clearly indicates the intention to vote for Davies and I rule the vote formal in favour of Davies.
Ordinary vote - Davies - Railway Estate (1 vote)
The voter in this case has again written two figures 1 beside the name Davies, 2 beside the name Tanti and 3 beside the name Cumming. It was accepted as formal. I rule this vote is a formal vote in favour of Davies.
Informal votes Currajong (1 vote)
On this ballot paper there has been written what might be a one in the box beside the name Davies, a cross has been put in each of the boxes beside Tanti and Cumming. It was not accepted as formal. On the face of the paper it is impossible to determine the preference of the voter and I rule that vote informal.
Informal votes Heatley (1 vote)
There is a single ballot paper in which a large tick goes partly through the box beside the name Tanti and the Christian name Frank after the name Tanti has been underlined. It was ruled informal.
I rule that this writing sufficiently indicates the intention of the voter to prefer Tanti and I rule it a formal vote in favour of Tanti. This involves overruling the decision of the returning officer.
Informal votes Hermit Park (2 votes)
The first ballot paper has a cross inserted in each of the boxes beside the names of the candidates. However a large figure one has been inserted beside the cross in the box beside Tanti. There is a circle around the figure 1 located in such a position as to indicate on its face that it was probably put there after the cross had been placed in the box beside Tanti. The writing made by the voter indicates that he preferred Tanti to the other candidates and intended to indicate that preference by writing the figure 1 beside the box beside the name Tanti - and almost touching it and then drawing a circle around the "1" so that it bisected that box. I infer that after he had initially made the same marking "X" in that box as in the other two boxes, he changed his mind and wrote 1 (encircled) beside the name Tanti.
The vote was not accepted as a formal vote.
I rule that vote to be a valid vote in favour of Tanti.
The other ballot paper has the numbers 6, 7 and 8 written beside the names Davies, Tanti and Cumming respectively. Underneath the names there is an expletive written with three exclamation marks after it.
I regard the writing on that ballot paper as not intended to indicate the intention of the voter to prefer any one candidate to the others. As I have already indicated the intention is to demonstrate the voter's distain for the candidates and the political system generally. The vote was not accepted as formal. I agree. I rule that vote informal.
In consequence of these two votes I rule that one has been incorrectly treated as an informal vote. That vote was in favour of Tanti.
Informal votes Cranbrook (1 vote)
This vote has a 1 beside the name Davies and a cross beside each of the other names. The vote was clearly informal and was so ruled. I confirm the informality of this vote.
Informal votes Aitkenvale (2 votes)
There is one ballot paper with a figure 1 in the box beside Davies and a cross beside each of the other boxes. The vote was not accepted as formal and I confirm that ruling.
The other ballot paper has hardly a mark on it. There is the hint of a mark in the box beside the name Davies. It is something more than a dot but much less than a 1. It could have been that the voter commenced to make a mark and then changed his or her mind. The vote has been ruled informal and that was a correct ruling. I confirm that it is an informal vote.
Ordinary - Davies - Cranbrook (2 votes)
There are two votes treated as formal votes.
The first has had X inserted beside the name Davies which has then been scribbled out. A figure 1 was then written beside the box. The other two boxes had the numbers two and three inserted in them. However beside the scribbled out X in the box beside the name Davies there appears to be writing which I find to be the initials of the voter no doubt placed there because of the alteration he or she made. The initial contains writing of the sort forbidden under s.114(1)(b) of the Act and the vote is therefore informal. I overrule the decision of the returning officer that this vote is formal and rule it informal for the reasons I have given.
The second vote has a figure 1 written in the box beside Davies. The writing is clearly a 1 and in the other boxes have been written 2 and 3. It was accepted as a formal vote and I rule that it is a formal vote in favour of Davies.
Ordinary Davies Mundingburra (1 vote)
On this ballot paper the voter has written a figure 1 to the right of and at the end of the name "Davies, Ken" but no other marking has been made on the paper. No mark has been placed in any of the boxes.
In my view the voter sufficiently indicated his intention to vote for Davies and by virtue of s.114(1)(a) I confirm the acceptance by the returning officer. I rule that it is a formal vote in favour of Davies.
Informal votes received in 10 days following polling day R/Officer (1 votes)
This ballot paper has a figure 1 written in the box beside Davies, a cross in the box beside Tanti and a two in the box beside Cumming. It was not accepted as a formal vote.
I confirm the ruling that that vote is informal because it is impossible to distinguish the preference between Davies and Tanti having regard to the symbols written in the boxes by the voter.
Ordinary - Davies - Aitkenvale (7 votes)
The first paper has a 1 written partly inside the box beside Davies; a mark that looks like a feeble circle written in the box beside Tanti and some scribble which does not indicate any intention written partly in box beside the name Cumming. It was accepted as a formal vote for Davies.
In my view the markings on the paper are sufficient to indicate that whatever the voter's views about Tanti and Cumming were, he preferred Davies as the candidate and I rule that vote formal. That confirms the ruling of the returning officer.
The second ballot paper is filled in 1 Davies, 2 Cumming and 3 Tanti. However over the 1 there has been a tick written.
The vote was accepted as formal and I confirm that acceptance.
The next ballot paper has two figures 1 written in the box beside Davies and 2 in the box beside Cumming and 3 in the box beside Tanti. That vote was ruled formal and I confirm that ruling.
The next ballot paper has the numbers 1, 3, 2, written on it in that order beside and after the names Davies, Tanti and Cumming. The numbers are not written in the boxes but at the end of the name of the candidates. The vote was accepted by the returning officer. I rule that the vote is a formal vote in favour of Davies.
The next ballot paper also has numbers written after the names of the candidates. Beside Davies there are written two figures 1. Beside the name Tanti there are two figures 2 written and beside the name Cumming there is a single figure 3 written. The vote was accepted as a formal vote in favour of Davies. I confirm that it is a formal vote in favour of Davies.
The next ballot paper has a figure 1 written from top to below the bottom of the box beside the name Davies. There is a small mark inside and near the top of the box beside the name Tanti. It in my view is not intended to be a 1. The voter may have intended to write something there and then changed his or her mind. The vote was accepted as formal. I rule that it is a formal vote in favour of Davies.
The next vote is one in which there is a figure 1 clearly written in the box beside the name Davies. Beside and at the top of that 1 there is drawn a sort of curve. The numbers 2 and 3 are clearly written in the other boxes. This vote was accepted as a formal vote in favour of Davies. I confirm that acceptance is a formal vote.
Informal votes polling day absents (1 vote)
On this ballot paper there is a long straight substantially diagonal mark in and extending beyond the box beside the name Davies. There is a cross in the box beside Tanti. The paper was ruled informal by the returning officer and I confirm that ruling.
Postal votes delivered before midnight 15.7.95 Tanti R/O Mundingburra (1 vote)
On this single ballot paper there is a tick in each of the three boxes. As well as the ticks numbers have been written in each of the boxes: 1 beside the name Tanti, 2 beside the name Cumming and 3 beside the name Davies. The numbers two and three appear to have been written over the ticks. The vote was accepted as formal in favour of Tanti and I rule that that acceptance was correct.
Ordinary - Tanti - Courthouse (1 vote)
This ballot paper has a mark only in the box beside the name Tanti. It looks like a big V. The vote was accepted as formal.
Even if the mark is not a normal tick it is certainly a mark indicating the intention of the voter to vote for Tanti and I rule it a formal vote in favour of Tanti.
Ordinary Tanti polling day absents (2 votes)
There are two ballot papers in this envelope.
On the first there is a heavy 1 written outside the box after the name Tanti. There are no other marks either inside or outside the boxes in respect of the other candidates. The vote was accepted as a formal vote in favour of Tanti. I confirm that acceptance.
The second ballot paper is one in which ticks have been inserted in each of the boxes beside the names Davies and Tanti. After those ticks were made it is clear that the voter inserted the numbers 1 in the box beside Tanti and 2 in the box beside Davies and then 3 in the unticked box beside Cumming. The vote was accepted as a formal vote in favour of Tanti. I confirm that acceptance.
Informal Vincent (1 vote)
In this envelope there is a ballot paper ruled informal by a returning officer.
The voter has put a tick in each of the boxes beside the candidates' names. Over the top of the ticks the voter has firmly written the numbers 1 beside Tanti, 2 beside Cumming and 3 beside Davies. I disagree with the ruling of the returning officer that it is an informal vote. Upon careful examination it is clearly a vote indicating the intention of the voter to prefer Tanti over the other two names in the boxes inside which he has written over the ticks first written the numbers 2 and 3. I rule that ballot paper is a formal vote in favour of Tanti.
In my judgment, upon examination of the ballot papers to which I have referred, the Return ought be altered to show that the petitioner received an additional 4 votes and the second respondent received 2 less votes than those retained by reason of the facts established under grounds 5(f) and 5(g) of the petition.
The result therefore is that as the result of error on the part of the returning officers, the petitioner received 4 formal votes above those shown in the return.
The second respondent received 2 votes less than those shown in the return.
All told there were 290 informal votes in lieu of the number 287 as shown in the return, and there were 19240 formal votes of which the second respondent received 9306 and the petitioner received 9296.
SUMMARY OF FINDINGS
In summary therefore I find as follows.
Upon the evidence in support of Petition Ground 5(a), 7 votes were invalidly cast.
Upon the evidence in support of Petition Ground 5(b) no vote particularised was invalidly cast.
Upon the evidence in support of Petition Ground 5(c), 11 declaration votes which should have been counted, were not counted.
Upon the evidence called with respect to Ground 5(d), 22 postal votes were not received by Defence personnel in Rwanda due to an error for which the Commission is responsible.
Upon the evidence called with respect to Ground 5(e), 6 persons were denied the opportunity to cast a declaration vote by error for which the Commission is responsible.
Consideration of ballot papers under Petition Grounds 5(f) and 5(g) shows that the return wrongly records the second respondent as having received two formal votes which were in fact informal. The return also wrongly shows that the petitioner received 4 less formal votes than in fact he did receive.
The result is that the return incorrectly records that the second respondent received 16 more formal votes than did the petitioner. Corrected the return should show that the second respondent received 10 more formal votes than did the petitioner.
One result of the findings to which I have referred is that there are 11 declaration votes which have not been counted. Unless they are counted it is impossible to say whether they are formal or informal. Even if all were formal and all were cast in favour of the second respondent that would have the result only of increasing his majority over the petitioner to 21 votes.
There would still be 35 instances involving the casting of invalid votes or the denial of the opportunity for electors to cast valid votes.
In those circumstances it could not be said that those 35 errors are such as to make it unlikely that the second respondent would not have been elected if they had not been made.
It is obviously an overriding consideration reflected in the Act that the secrecy of votes cast be preserved. If the declaration votes which have not been counted were ordered to be counted then depending upon the result of that counting the secrecy of the manner in which the voters cast them may be compromised. In the exercise of my discretion having regard to the fact that the counting of the votes would not in any event be determinative of the question as to whether a new election ought be ordered I do not propose to have those declaration votes counted. I treat the wrongful failure to count them as another error or omission for which the Commission is responsible which makes it desirable that a new election be ordered.
In determining what order should be made upon the findings, I have summarised, I do so on the basis that:
(a)39 votes were not counted which should have been counted; and
(b)7 votes were counted which should not have been counted.
I hold that the second respondent may not have been elected had the 39 errors or omissions not occurred and had the 7 unlawfully cast votes not been counted.
Upon the findings of fact I have made, I make the following orders:
The second respondent Ken Davies be taken not to have been elected in the election in Queensland for the Mundingburra District held on 15 July 1995.
A new election be held for the Electoral District of Mundingburra in lieu of the election held on 15 July 1995.
I will hear submissions on the question of costs.
Petition No. 16
BETWEEN: FRANK JOHN TANTI
AND: ELECTORAL COMMISSION OF QUEENSLAND
First Respondent
AND: KENNETH HENRY DAVIES
Second Respondent
Index to Judgment
Page No
Introduction and statement of Bases of Dispute as contained in Grounds
of Petition......................................................................................................................................... 1
Principles upon which powers exercised under s.136 of the Electoral Act 1992.................................. 4
Bases of Dispute considered separately :
Multiple voting or alternatively personation (21 votes). (Petition Grounds 5(a) and (b))........... 9
Personation (39 votes). (Petition Ground 5(b))..................................................................... 19
Declaration votes not counted (15 votes). (Petition Ground 5(c)).......................................... 25
The denial of a vote to 22 Australian Defence Force personnel serving overseas
(22 votes). (Petition Ground 5(d))....................................................................................... 33
Persons denied the opportunity to cast a declaration vote by error of the
first respondent (8 votes). (Petition Ground 5(e))................................................................. 79
Ballot papers counted in favour of the second respondent which should have
been excluded as informal. (Petition Ground 5(f))................................................................. 83
Ballot papers which should have been counted for the petitioner which were
excluded as informal. (Petition Ground 5(g))........................................................................ 83
Recommendation for consideration to be given by the legislature to ss.105 and 110 of
the Electoral Act 1992.................................................................................................................... 78
Summary of findings and effect given to them................................................................................... 99
Orders.......................................................................................................................................... 101
0