Wikblom v Mousley - [2006] SASC 192

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Electoral Petition)
WIKBLOM v MOUSLEY
[2006] SASC 192
Judgment of The Honourable Chief Justice Doyle
4 July 2006
CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - ELECTIONS AND RELATED MATTERS - METHODS OF VOTING
Electoral petition – petition claims orders declaring void the election for the South Australian House of Assembly electoral district of Hammond – petition claims inter alia that certain sections of the Electoral Act 1985 (SA) requiring voters to express a preference for all candidates for election in an electoral district denies voters a free or genuine choice between candidates standing for election – it is further claimed that the requirement to express a preference for candidates standing in an election for the electoral district is inconsistent with the exercise of a free or informed vote - matters raised before the Court do not disclose a basis on which to declare void any election - certain matters raised before the Court are non-justiciable – petition dismissed.
Electoral Act 1985 (SA) s 76(2), s 93(2), s 94, s 94(1)(b), s 94(6), s 96(5), s 96(5)(d), s 103, s 104, s 104(1)(a), s 107, s 107(3)(b), s 110; Supreme Court Rules 1987 (SA) r 25.04, referred to.
Abbotto v Australian Electoral Commissioner (1997) 144 ALR 352, applied.

WIKBLOM v MOUSLEY
[2006] SASC 192
Civil: Court of Disputed Returns

DOYLE CJ: Mr Wikblom has filed a petition addressed to the Supreme Court sitting as the Court of Disputed Returns exercising the jurisdiction conferred on it by s 103 of the Electoral Act 1985 (SA) (“the Act”).
He claims an order declaring void the election for the House of Assembly electoral district of Hammond. The election took place under the Act on 18 March 2006 as part of a general election for the House of Assembly.
Mr Wikblom voted at the election for the seat of Taylor.
His petition raises issues similar to those to a petition filed by Mr Aldridge, which petition is the subject of my reasons in Aldridge v Mousley [2006] SASC 191.
Mr Wikblom claims that the election should be declared void.
The basis of his claim is that the requirement in s 76(2) of the Act, that a voter must indicate an order of preference for all candidates, denies the voter a free choice and requires the voter to make a choice that is not free or genuine. He claims that this amounts to undue influence contrary to s 110 of the Act, because a voter who does not comply runs the risk of the voter’s ballot paper being treated as informal. He claims that voting under this regime involves an regularity affecting the conduct of the election, falling within s 107(3)(b) of the Act.
His petition alleges that the successful candidate was elected only after 2,677 ballot papers indicating a first preference for another candidate had been “counted to” the successful candidate pursuant to s 96(5)(d) of the Act. His petition asserts that in some cases the “marked numbers” will “make it unclear” whether the relevant voters “intended to have their votes transferred to Mr Pederick [the successful candidate] or to any of all the candidates, or they were unduly influenced as above”. These ballots “cannot be honestly validated as votes truly intended to be transferred to him”. Accordingly, the petition claims, correction of these irregularities “is likely to prove … that Adrian Pederick’s valid votes amount to less than a majority of the total number of valid votes cast”.
I must determine whether the petition should be dismissed on the grounds that the Court cannot grant the orders sought.
The petition
The petition meets the formal requirement stated by s 104 of the Act.
The petition is signed by Mr Wikblom, who is a qualified voter. It is duly attested by two witnesses. It was filed within 40 days after the return of the writ. Mr Wikblom made the required deposit of $200 as security for costs. The petition sets out the relief that he claims, including an order declaring the election void.
The facts on the basis of which it is said the election should be declared void are rather sparse. They are an assertion that the successful candidate was elected after a distribution of preferences, which distribution is said to be an irregularity or contrary to law. If the distribution of preferences was unlawful or irregular, it may be that it would follow that the result of the election was affected, and that the Court could declare the election void: see s 107(3). However, it is not necessary to examine the matter more closely because I consider that the petition should be dismissed in any event.
Counsel for the Electoral Commissioner informed me that notice of the petition has been given to Mr Pederick, the candidate elected. He has informed the Commissioner that at this stage he does not wish to be heard.
The Commissioner’s application
The Electoral Commissioner is the respondent to the petition: s 105.
The Commissioner has made an application for summary judgment under r 25.04 of the Supreme Court Rules 1987 (SA), on the ground that the orders sought are beyond the powers of the Court, and on the ground that the petition discloses no matter upon which the Court could make an order under s 107 of the Act declaring the election void and requiring a new election to be held.
For the reasons given in Aldridge v Mousley I am satisfied that I have power to dismiss the petition if the Commissioner makes good her submissions.
The orders sought
Some of the orders sought are procedural, and call for no comment. An example is the claim that the Court should examine witnesses on oath. Some of the procedural claims are inappropriate, and cannot or should not be granted. An example is the claim that the proceedings should be adjourned until certain proceedings in the High Court (apparently adjourned some time ago) are completed. There is no reason to adjourn the present proceedings. Some of the orders sought are beyond the powers of the Court, and are liable to be struck out. An example is the claim that the Court should “report to the Governor any illegal actions and omissions of the respondent …”. Another example is the claim for an order for a scrutiny and recount of ballot papers in other electoral divisions.
However, the petition includes a claim for an order declaring void the election of the successful candidate for the electoral district of Hammond. That is an order that the Court could make, if circumstances justifying the making of the order are established.
Accordingly, it is appropriate to consider whether the petition alleges facts that could invalidate the election: s 104(1)(a). If it does not, the petition should be dismissed, because in that event it will not disclose a matter on which the Court could make an order under the Act.
Irregularities and undue influence
Mr Wikblom complains about provisions of the Act relating to the marking of ballot papers, relating to the interpretation of ballot papers by reference to voting tickets, and relating to informal ballot papers.
The complaint that he makes is similar to the complaint made by Mr Aldridge in his petition.
The petition states that s 76(2) of the Act requires a voter to indicate a preference for each candidate. The petition asserts that an elector, like Mr Wikblom, might not wish the elector’s ballot paper to be counted to one or more of the other candidates if the candidate who receives the elector’s first preference cannot be elected. Such an elector’s intention is frustrated by s 76(2) despite the fact, as the petition asserts, that a ballot paper marked with the number 1 in the square opposite the name of one candidate only makes the voter’s intention clear. The petition asserts that effect should be given to such a ballot paper by virtue of s 94(6) of the Act.
The petition asserts that if a voter like Mr Wikblom marks his or her vote on the ballot paper as required by s 76(2), to avoid the ballot paper being treated as informal, the voter does so as a result of being “unduly influenced” and the voter is forced to conceal the voter’s “true voting intentions, under penalty of being disenfranchised by having our ballot papers discarded as informal, if we mark ballot papers to reveal our true voting intentions”.
The petition further states that if an elector marks the ballot paper to indicate a first preference for one candidate only, not indicating an order of preference for other candidates, the elector’s intention is clear. However, if a voting ticket is registered in respect of that candidate, the elector’s ballot paper will be interpreted by virtue of s 93(2) of the Act as having been marked in accordance with the voting ticket. The ballot paper may be counted to another candidate on a distribution of preferences under s 96(5) of the Act. The petition asserts that this is contrary to the true intention of the elector, which intention is apparent from the decision to indicate a preference for one candidate only.
The petition states that these and related provisions of the Act result in an irregularity for the purposes of s 107(3)(b) of the Act. The irregularity, I take it, lies in the compulsion on the elector to indicate an order of preference for each candidate, against the elector’s wishes. The irregularity lies also in the distribution of preferences, pursuant to a voting ticket, contrary to the elector’s wishes. The practical compulsion (as a result of the threat of informality) on an elector is said to amount to influencing the vote of an elector “by violence or intimidation” contrary to s 110 of the Act.
The petition asserts that ballots were counted to the successful candidate at the election as part of a distribution of preferences, and that because of the effect on voters of the provisions of the Act referred to, those ballots “cannot be honestly validated as votes truly intended to be transferred to him”. On this basis the petition in para 40 states that “correction of the irregularities” requires a fresh preference distribution, being one in which “unduly influenced preferences” are not distributed. How that could be done is not identified.
The petition states that the same error or irregularity occurred in 21 other electoral districts. I disregard that part of the petition because the jurisdiction of the Court to declare an election void is limited to an election in which the petitioner was an elector entitled to vote: Abbotto v Australian Electoral Commissioner [1997] HCA 18; (1997) 144 ALR 352 at 353; (1997) 71 ALJR 675 at 353. Accordingly, Mr Wikblom’s petition invokes the Court’s jurisdiction only in relation to the election for the electoral district of Hammond.
Can the relief sought be granted?
The claim for a recount and fresh scrutiny of the ballot papers for the electoral district of Hammond cannot be upheld. The Court has no power to make such an order. If the election were declared void, the Electoral Commissioner might conduct a recount, but that would be a consequence of the election being void.
It follows that the petition must be dismissed unless the matters alleged are matters on the basis of which, if established, the Court could make an order under s 107 declaring the election void.
I doubt whether a scrutiny of the unrejected ballot papers that were counted would lead to any particular conclusion, were it to take place. If a ballot paper indicates an order of preference for each candidate, there is no way of knowing whether the elector marked the ballot paper in that way willingly or unwillingly. There is no basis upon which such ballot papers could be treated as informal. The same comment applies to ballot papers that were given an effect under the provisions relating to registered voting tickets.
Quite apart from that, the claim for relief must fail because, ultimately, it is a claim that ballot papers should not be treated as informal when the Act requires them to be treated as informal, and a claim that ballot papers should not be counted in the manner that the Act requires.
In my reasons in Aldridge v Mousley I have explained why I conclude that the Act requires a ballot paper to be treated as informal if it does not comply with s 76(2) and s 94(1)(b) because it does not indicate “the order of the voter’s preference for all candidates in the election”; or if effect cannot be given to it pursuant to s 94(4) under the provisions relating to registered voting tickets; or unless, although not marked in the manner required by the Act, the ballot paper is so marked that “the voter’s intention is clear”, meaning that an order of preference in respect of all candidates is indicated, and so the ballot paper is saved from being informal by s 94(6). I will not repeat those reasons here. My reasons in Aldridge v Mousley should be read with these reasons.
The matters about which Mr Wikblom complains in the petition are all matters dictated by the provisions of the Act. He claims an entitlement to vote in a manner that the Act does not permit. To be more specific, he claims an entitlement to have a ballot paper counted on the scrutiny even though it is completed in a manner that requires the Returning Officer to reject it as informal by virtue of s 94 of the Act.
The assertion in the petition that if Mr Wikblom, or a like-minded voter, marks a ballot paper as required by s 76(2), or marks it in such a manner that effect is given to it under the provisions relating to registered voting tickets, there is some kind of irregularity or breach of the Act, cannot be accepted. Compliance with the provisions of the Act cannot be a cause for complaint under the Act.
The petition does not identify any matter on the basis of which it could be said that on the scrutiny of the ballot papers the returning officer has counted ballot papers that should have been rejected as informal because, in effect, the voter might have been reluctant to indicate an order of preference for all candidates. A ballot paper could not be rejected on that basis.
I accept that Mr Wikblom’s beliefs and concerns are genuinely held. It is true that the provisions of the Act prevent him from marking his ballot paper in the manner in which he wishes to vote, require him to complete his ballot paper in a manner in which he does not wish to do so, and provide that a ballot paper completed by him in accordance with the requirements of the Act will be counted to a candidate other than his chosen candidate on a distribution of preferences. But the Court cannot treat compliance with the requirements of the Act as giving rise to an irregularity or basis for declaring an election void, nor can the Court treat a scrutiny of ballot papers conducted in accordance with the Act as providing a basis to declare an election void.
Conclusion
The facts asserted in the petition disclose no matter upon which the Court could make an order declaring the election void. Apart from that claim, the relief claimed in the petition is relief that the Court either has no power to grant, or could not appropriately grant in these proceedings.
For these reasons the petition must be dismissed.