Mitchell v Bailey (No 2) (Corrigendum 29 August 2008 and Addendum 28 August 2008) [2008] FCA 692 (2 July 2008)

Last Updated: 1 September 2008

FEDERAL COURT OF AUSTRALIA

Mitchell v Bailey (No 2) [2008] FCA 692

CORRIGENDUM

ROB MITCHELL v FRAN BAILEY and THE AUSTRALIAN ELECTORAL COMMISSION

VID 123 OF 2008



TRACEY J

2 JULY 2008 (CORRIGENDUM DATED 29 AUGUST 2008)

MELBOURNE

REASONS FOR JUDGMENT CORRIGENDUM

1 The six asterisk (*) should be removed from reference to the following in the Schedule attached to the judgment:

• Ballot Paper 33

• Ballot Paper 233

• Ballot Paper 396

• Ballot Paper 445

• Ballot Paper 550

• Ballot Paper 624

Associate:



Dated: 2 July 2008

FEDERAL COURT OF AUSTRALIA

Mitchell v Bailey (No 2) [2008] FCA 692

ADDENDUM

ROB MITCHELL v FRAN BAILEY and THE AUSTRALIAN ELECTORAL COMMISSION

VID 123 OF 2008



TRACEY J

2 JULY 2008 (ADDENDUM DATED 28 AUGUST 2008)

MELBOURNE

ADDENDUM TO REASONS FOR JUDGMENT

1 The following Endnote should appear after Page 70 in the judgment:

ENDNOTE

In footnotes 1, 2 and 3 to the Schedule to these reasons it is noted that, having found that ballot-papers numbered 1, 219 and 396 were informal, the Court was unable to adjust the overall vote count to take account of these rulings because there was no evidence before the Court as to how the DRO had dealt with the ballot-papers when they were recounted following the AEO’s decisions that they were formal.



After these reasons were handed down the Australian Electoral Commission advised the Court that "that each of these ballot-papers had, during the recount which preceded the commencement of the petition proceeding, been included in the parcels in which the preferences had been allocated to Mr Mitchell."



The Australian Electoral Commission also drew attention to a clerical error in the Schedule relating to ballot-paper number 445. In column B it is recorded as having been rejected by the Australian Electoral Officer. In fact it was admitted by him. Accordingly, the number 1 should have been included in Column I and not Column M.



As a result Column I should be increased from 259 to 260, Column J should be increased from 7 to 10 and Column M should be reduced from 66 to 65.



Because of these amendments, a slight variation to the figures contained in paragraph [84] of the judgment is necessary. The figures should read as follows:

Ms Bailey was, therefore, the successful candidate by a margin of 31 votes.

Associate:



Dated: 29 August 2008

FEDERAL COURT OF AUSTRALIA

Mitchell v Bailey (No 2) [2008] FCA 692

PARLIAMENTARY ELECTIONS – Court of Disputed Returns - Parliamentary Election (Cth) – House of Representatives – whether petition could succeed as framed – whether an Australian Electoral Officer ("AEO"), in exercising their powers under s 281(2) of the Commonwealth Electoral Act 1918 (Cth) ("the Act") has some or all of the powers of an Assistant Returning Officer or a Divisional Returning Officer in conducting the scrutiny – whether the Court of Disputed Returns should conduct a judicial review or a merits review of the decisions of an AEO – whether parties or their legal advisers are permitted to inspect ballot-papers - the principles to be applied in determining whether a particular ballot-paper is formal or informal under the Act – whether initials on a ballot-paper render the ballot-paper informal



WORDS AND PHRASES – "illegal practice" – "voter’s intention"



Commonwealth Electoral Act 1918 (Cth) ss 20, 21, 209, 209A, 240, 263, 265, 267, 268, 274, 279, 279B, 280, 281, 284, 352, 353, 354, 355, 360, 361, 362, 363, 363A, Schedule 1, Form F

Commonwealth Electoral Act 1902 (Cth) ss 157, 158, 173, 180, 181

Acts Interpretation Act 1901 (Cth) s 22(1)(j)

Commonwealth Electoral Act 1918-1922 (Cth) s 218

Electoral and Referendum Regulations 1918 (Cth) reg 76





Kean v Kerby [1920] HCA 35; (1920) 27 CLR 449 followed

Shaw v Wolf (1998) 83 FCR 113 cited

Bourne v Murphy (1996) 92 LGERA 329 followed

Tanti v Davies (No 3) [1996] 2 Qd R 602 cited

Re Maryborough Election Petition; Nightingale v Alison [1984] 2 Qd R 214 followed in part, not followed in part

Mitchell v Bailey [2008] FCA 426 cited

Langer v Commonwealth [1996] HCA 43; (1996) 186 CLR 302 followed

Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353 cited

Federal Commissioner of Taxation v Brian Hatch Timber Co (Sales) Pty Ltd [1972] HCA 73; (1972) 128 CLR 28 cited

Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 cited

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 cited

Kane v McClelland [1962] HCA 26; (1962) 111 CLR 518 cited



ROB MITCHELL v FRAN BAILEY and THE AUSTRALIAN ELECTORAL COMMISSION

VID 123 OF 2008



TRACEY J

2 JULY 2008

MELBOURNE

THE COURT ORDERS THAT:

1. Pursuant to s 363 of the Commonwealth Electoral Act 1918 (Cth), the Registrar forthwith report the findings of illegal practices recorded in my reasons for judgment to the Special Minister for State.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1 This is a petition under s 353(1) of the Commonwealth Electoral Act 1918 (Cth) ("the Act") by Rob Mitchell disputing the validity of the return of Fran Bailey as a lawfully elected member of the House of Representatives for the Division of McEwen, at the election which took place on 24 November 2007. The formal requirements, imposed by s 355 of the Act, have been satisfied.

2 Section 354(1) of the Act constitutes the High Court as the Court of Disputed Returns. The High Court is, however, empowered to refer a petition for trial in this Court. On 21 February 2008 Crennan J referred the petition for trial to this Court. Upon such a reference this Court is given jurisdiction to try the petition and to exercise all of the powers and functions of the Court of Disputed Returns: see s 354(2).

3 After the first counting of votes cast in the McEwen Division the petitioner was declared to be the successful candidate by a margin of six votes. Following a recount the first respondent was declared elected with a margin of 12 votes. The petitioner claimed that about 40 ballot-papers were wrongly rejected by the Australian Electoral Officer ("the AEO") and that each of these ballot-papers indicated a preference for the petitioner ahead of the first respondent. It was also alleged that another ballot-paper which indicated a preference for the first respondent ahead of the petitioner was incorrectly accepted and counted. If the petitioner is correct and the errors which he alleges were the only errors in the conduct of the ballot, he should have been declared to be the successful candidate. On only one previous occasion in the history of Federation has there been a narrower margin for a winning candidate in a House of Representatives election than the one obtained by the first respondent in the election presently under consideration. The successful candidate in the 1920 general election in the Division of Ballarat was declared elected by a margin of one vote. The Court of Disputed Returns accepted that a number of irregularities had tainted the poll and declared it to be void: see Kean v Kerby [1920] HCA 35; (1920) 27 CLR 449. A fresh election was held.

4 It is necessary to refer to the factual position in greater detail. At the general election of the members of the House of Representatives, held on 24 November 2007, eight candidates were nominated for election in the Electoral Division of McEwen in Victoria. The petitioner was one of those candidates. He had been endorsed by the Australian Labor Party. The first respondent was another candidate. She was the candidate endorsed by the Liberal Party of Australia. After the allocation of preferences in accordance with s 274 of the Act, the petitioner and the first respondent were the candidates who had secured the largest number of votes in the Division. After the final distribution of preferences the petitioner had 48,416 votes, the first respondent had 48,410 and there were 3,823 informal votes. On 11 December 2007 the AEO for Victoria, Mr Daryl Wight, directed the Divisional Returning Officer ("the DRO") for the Division of McEwen to conduct a recount of the ballot-papers. That recount was undertaken at the Divisional Counting Centre between 12 and 14 December 2007. The recount occurred in the presence of scrutineers appointed by the petitioner and the first respondent. If a scrutineer challenged the formality of a ballot-paper the DRO made a decision as to whether to admit the ballot-paper or reject it from the count. If a scrutineer disagreed with a decision of the DRO the ballot-paper was reserved for the decision of the AEO for Victoria. In all, 643 ballot-papers were reserved for his decision. On 14 and 17 December 2007 the AEO examined each of the reserved ballot-papers in the presence of scrutineers. In each case he decided whether the ballot-paper should be allowed and admitted in the count or disallowed and rejected. He annotated the back of the ballot-papers accordingly. The ballot-papers were then returned to the Divisional Counting Centre. Those that had been ruled admitted were counted; those that were ruled rejected were not counted. Certain counting errors were also detected. The result of the recount was that the first respondent had 48,265 votes, the petitioner had 48,253 and there were 4,116 informal votes. The first respondent was declared to be the successful candidate. The writ for the election was returned on 21 December 2007: see s 284 of the Act. The certificate attached to the writ certified that the first respondent was the candidate who had been elected for the Division of McEwen.

5 By petition dated 25 January 2008 the petitioner complained that at least 40 of the 643 reserved ballot-papers had been wrongly rejected by the AEO and that those ballot-papers each indicated a preference, by the elector, for the petitioner ahead of the first respondent. In one instance it was alleged that a ballot-paper which recorded a preference for the first respondent ahead of the petitioner had been wrongly admitted to the count. The alleged errors were particularised as follows:

"(a) The AEO rejected at least 5 ballot-papers on the basis that he was not satisfied that the mark in one square on the ballot paper was the figure 5 rather than the letter S. This decision was made even though in each case the remaining squares on the ballot paper contained the figures 1, 2, 3, 4, 6, 7 and 8. It was clear from each ballot-paper as a whole that the voter intended the mark in question to be the figure 5. In each such case the ballot-paper was not informal and should not have been rejected.

(b) The AEO rejected at least 5 ballot-papers on the basis that he was not satisfied that the mark in one square on the ballot paper was the figure 5 rather than the letter J. This decision was made even though in each case the remaining squares on the ballot paper contained the figures 1, 2, 3, 4, 6, 7 and 8. It was clear from each ballot paper as a whole that the voter intended the mark in question to be the figure 5. In each such case the ballot-paper was not informal and should not have been rejected.

(c) The AEO rejected at least 10 ballot-papers on the basis that he was not satisfied that the mark in one square on the ballot paper was the figure 4 rather than the letter Y or the figure 9. This decision was made even though in each case the remaining squares on the ballot paper contained the figures 1, 2, 3, 5, 6, 7 and 8. It was clear from the ballot-paper as a whole that the voter intended the mark in question to be the figure 4. In each such case the ballot-paper was not informal and should not have been rejected.

(d) The AEO rejected at least 5 ballot-papers on the basis that he was not satisfied that the mark in one square on the ballot paper was the figure 6 because the bottom loop of the figure was not completely closed. This decision was made even though in each case the remaining squares on the ballot paper contained the figures 1, 2, 3, 4, 5, 7 and 8. It was clear from the ballot-paper as a whole that the voter intended the mark in question to be the figure 6. In each such case the ballot-paper was not informal and should not have been rejected.

(e) The AEO rejected 1 ballot-paper on the basis that he was not satisfied that the mark in one square on the ballot paper was the figure 8 rather than 2 zeros, one placed above the other. This decision was made even though the remaining squares on the ballot paper contained the figures 1, 2, 3, 4, 5, 6 and 7. It was clear from the ballot-paper as a whole that the voter intended the mark in question to be the figure 8. In this case the ballot-paper was not informal and should not have been rejected.

(f) The AEO rejected at least 6 ballot-papers where the voter had marked the figure 1 in one square on the ballot paper and had then crossed that figure out and marked the figure 2 next to it on the basis that he was not satisfied that the crossing out was not the figure 1 and the two marks together formed the figure 21. This decision was made even though in each case the remaining squares on the ballot paper contained the figures 1, 3, 4, 5, 6, 7 and 8. It was clear from the ballot-paper as a whole that the voter intended the mark in question to be the figure 2. In each such case the ballot-paper was not informal and should not have been rejected.

(g) The AEO rejected 2 or 3 ballot-papers where the voter had marked a figure in one square of the ballot paper and had then marked a different figure more heavily over the first figure on the basis that he could not be satisfied which figure had been marked on top of the other. This decision was made even though it was clear from the figures in the remaining squares on the ballot paper which figure the voter had intended to mark in the square in question. In each such case the ballot-paper was not informal and should not have been rejected.

(h) The AEO rejected at least 4 ballot-papers where the voter had marked a figure in a square on the ballot paper and had also marked the same figure outside the square. This decision was made even though in each case the squares on the ballot paper contained the figures 1, 2, 3, 4, 5, 6, 7 and 8 and the voter’s intention was clear. In each such case the ballot-paper was not informal and should not have been rejected.

(i) The AEO accepted 1 ballot-paper where the voter had crossed out the names of all candidates in the election and substituted different names on the basis that all the squares contained the figures 1, 2, 3, 4, 5, 6, 7 and 8. This decision was made even though it was clear that the voter had not intended to indicate, and had not indicated, a preference for any candidates in the election. In this case the ballot-paper was informal and should not have been accepted."

In making his decisions the AEO was said to have contravened ss 268, 274 and 280 of the Act. As can be seen from the repeated use of the words "at least ... ballot-papers" the petitioner did not identify precisely how many ballot-papers he said were wrongly rejected by the AEO. The reasons attributed to the AEO for his decisions to reject the ballot-papers were, however, carefully framed. Except for a small number of papers on which notations such as initials were written, it was not possible for the petitioner to identify the particular ballot-papers in respect of which it was alleged that faulty decisions had been made because no ballot-paper bore any distinguishing mark or marks apart from the markings which led to its rejection.

PRELIMINARY POINTS

6 The first respondent raised two preliminary points. The first was that the errors alleged in the petition did not constitute illegal practices on the part of the AEO and that, as a result no foundation for the granting of the relief sought was established. The second was that the Court should not make its own assessment of the formality of each reserved ballot-paper; rather it should accept the AEO’s ruling unless persuaded that the AEO’s decision was so unreasonable that no reasonable AEO could have come to it.

The first point

7 The first respondent contended that, as framed, the petition "cannot succeed". This was because the AEO could not contravene ss 268, 274 and 280 of the Act. Those sections, it was submitted, imposed no obligations on the AEO. No other contraventions of the Act were alleged in the petition. In the absence of any contravention, no relief of the kind sought by the petitioner could be granted.

8 The argument was developed by reference to a series of provisions of the Act. The petition seeks orders declaring that the first respondent was not duly elected as a member of the House of Representatives and that the petitioner was duly elected. By s 360(3) of the Act the Court has power to grant such relief on the ground that illegal practices were committed in connection with the election. That power is qualified by s 362(3) which prevents its exercise, subject to some irrelevant exceptions, unless the Court is satisfied that the result of the election was likely to be affected by the illegal practices.

9 The term "illegal practice" has appeared in the Act since its inception: see Commonwealth Electoral Act 1902 (Cth), ss 173(ii), 180 and 181. As originally used it referred to criminal conduct such as bribery and publication of electoral material without a statement that the material had been authorised by a named person. The continued use of the term is unfortunate. It is apt to suggest conduct which involves moral turpitude and conduct which is criminal in nature: cf Shaw v Wolf (1998) 83 FCR 113 at 133. "Illegal practices" is, however, now defined, in s 352(1) of the Act, to mean a contravention of the Act or the regulations made under it. A failure to comply with a statutory requirement will constitute a contravention of the relevant provision: see s 22(1)(j) of the Acts Interpretation Act 1901 (Cth). Inadvertent errors, made by those charged with the administration of the Act, can, therefore, amount to "illegal practices". Bona fide but mistaken decisions by Returning Officers to admit or reject ballot-papers may, for example, amount to "illegal practices".

10 As already noted the petitioner contends that the AEO contravened ss 268, 274 and 280 of the Act by admitting ballot-papers that were informal and rejecting ballot-papers which were not informal. Section 268 of the Act stipulates that ballot-papers will be informal in certain circumstances. Relevantly it provides:

(2) A ballot-paper to which paragraph (1)(a) applies shall not be informal by virtue of that paragraph if the Divisional Returning Officer responsible for considering the question of the formality of the ballot-paper is satisfied that it is an authentic ballot-paper on which a voter has marked a vote.

(3) A ballot-paper shall not be informal for any reason other than the reasons specified in this section, but shall be given effect to according to the voter’s intention so far as that intention is clear."

11 Section 274 deals with the scrutiny of votes in House of Representatives elections. It directs Assistant Returning Officers ("AROs") and DROs as to the manner in which they are to conduct the scrutiny. The AROs conduct a first scrutiny. The DRO’s conduct part of the first scrutiny and a fresh scrutiny. In the event that a recount is necessary it is to be undertaken by the appropriate DRO in the same manner as the original scrutiny would be conducted: see ss 279 and 280. The AEO for the State in which the Division is located has no relevant role to play in the processes mandated by s 274. Nor does he or she conduct a recount. If, however, in the course of a recount, a scrutineer requests that any ballot-paper be reserved for the decision of the AEO, the officer conducting the recount is required to reserve the ballot-paper. The officer may also, of his or her own motion, reserve any ballot-paper for decision by the AEO: see s 281(1). If any ballot-paper is reserved under s 281(1), the AEO is required, by s 281(2), to "decide whether any ballot-paper so reserved is to be allowed and admitted or disallowed and rejected."

12 The first respondent sought to draw a distinction between the terms on which powers are conferred on the AEO under s 281(2) of the Act and those in which power is conferred on the DRO when the DRO is conducting a fresh scrutiny or recount of the ballot-papers. The first scrutiny is undertaken by an ARO pursuant to s 274(2) of the Act. One of the functions which AROs are required to perform, in the course of conducting a scrutiny, is to reject all informal ballot-papers: see s 274(2)(b). When conducting a fresh scrutiny the DRO is given the same powers as an ARO who is conducting an original scrutiny and he or she may reverse any decision given by the ARO: see s 274(7)(b). When a DRO is conducting a recount he or she has the same powers as if the recount were the scrutiny: see s 280. No equivalent grant of power is made to the AEO for the purpose of determining whether reserved ballot-papers should be allowed and admitted or disallowed and rejected under s 281(2). Emphasis was also placed on the different language employed to confer power on AROs and DROs, on the one hand and AEOs on the other. Under s 274(2)(b) Returning Officers were required to reject informal ballot-papers. Section 281(2) merely required an AEO to make a decision as to whether or not a ballot-paper should be admitted in a recount. This means, so the argument runs, that the AEO is not under a statutory obligation to reject informal ballot-papers when exercising his or her powers under s 281(2). The first respondent accepted that, in deciding whether a ballot-paper should be rejected on the ground that it is informal, the AEO must act consistently with the definition of informality contained in s 268. A decisional error could not, however, amount to a contravention of s 268.

13 The petitioner submitted that it should be inferred that, when exercising power under s 281(2), the AEO has the same powers which the DRO possesses, pursuant to s 280, when undertaking a recount. In oral argument this submission was modified: the AEO only had such of the powers conferred on the DRO as were necessary for the AEO to conduct the scrutiny of the reserved ballot-papers. One of these powers was the power (indeed, duty) to reject informal ballot-papers. This means that the AEO is required to scrutinise each ballot-paper with a view to determining whether the criteria for informality, prescribed by s 268, have been satisfied and, if they have, he or she is bound to reject the paper as informal. Errors by the AEO in determining whether or not reserved ballots are informal constitute contraventions of the Act and, therefore, illegal practices. The petitioner also submitted that s 268(3) imposed an obligation on the AEO to give effect to a ballot-paper according to the voter’s intention and that, if he or she did not do so, a contravention of the Act would occur.

14 The Act does not confer on the AEO (either expressly or by implication) the full panoply of powers which are required by those officers who undertake the scrutiny of ballot-papers and recounts. This is hardly surprising given the limited nature of the function being performed by the AEO. It is not a full count or recount. The AEO is not required to perform the many tasks which an ARO or a DRO is required to perform in the course of an original scrutiny, a fresh scrutiny or a recount. Unlike an ARO, the AEO is not, for example, required to "arrange the unrejected ballot-papers under the names of the respective candidates by placing in a separate parcel all those on which a first preference is indicated for the same candidate": see s 274(2)(b). Nor is an AEO required to conduct a recount and reserve ballot-papers in the course of such a recount: see ss 279, 280 and 281(1). The AEO’s task, under s 281(2), is to examine each ballot-paper which has been reserved for his or her consideration with a view to deciding whether the ballot-paper should be counted or not counted in the recount being undertaken by a DRO.

15 As already noted reserved ballot-papers are set aside in the course of a recount of ballot-papers. Section 279B of the Act prescribes the process which is to be followed in dealing with those ballot-papers. They are to be separated and placed in a sealed parcel: see s 279B(5). The parcel is then to be forwarded promptly to the AEO: see s 279B(6). When the AEO receives the ballot-papers he or she is required to open the parcel in the presence of a public servant and any scrutineer who is present. The AEO is then required, by s 279B(7) to:

(b) mark each ballot-paper "admitted" or "rejected" according to his or her decision."

Once the AEO has made his or her decisions, the reserved ballot-papers are to be restored to their packets and returned to the DRO: see ss 279B(8), (9) and (10). Section 279B(11) provides that:

As I understand this sub-section, what it requires is that, upon the return of the reserved ballot-papers from the AEO, the DRO is to examine each of the ballot-papers. Those which the AEO has marked "rejected" are not to be included in the recount. Those that the AEO has marked "admitted" are to be included. It is for the DRO to determine the individual voter’s intentions by reference to what he or she has marked on any ballot-paper ruled by the AEO to be admissible. The preferences of the voter are allocated to candidates in accordance with the DRO’s determination.

16 The critical issue is whether the AEO, in exercising his or her powers under s 281(2), has some or all of the powers conferred on AROs and DROs for the purpose of their conduct of the scrutiny of ballot-papers. The AEO is required to "scrutinise" the ballot-papers reserved for his or her consideration. Section 279B(7) appears in Part XVIII of the Act which deals with the scrutiny of ballot-papers. By s 263 it is provided that the result of the polling is to be determined by scrutiny. The Act anticipates that an AEO may be involved in a scrutiny. Section 265 provides for the presence of scrutineers, appointed by candidates, during the scrutiny. During a scrutiny, the scrutineers are given certain powers of inspection of ballot-papers subject to the proviso that electoral officers, including AEOs, may decide that such an inspection would unnecessarily delay the scrutiny. As the AEO has no role to play in the initial scrutinies which are undertaken by AROs and DROs, fresh scrutinies which are conducted by DROs and recounts which are carried out by DROs, this provision affords support for the suggestion, made by the second respondent, that the AEO is engaged in a scrutiny when exercising his powers under s 279B(7) for the purpose of making decisions under s 281(2). One element of the scrutiny is the rejection of informal ballot-papers and the counting of formal "unrejected" ballot-papers: see ss 267, 274(2)(b), 274(2)(c), 274(7)(b). If a ballot-paper is not informal the officer conducting the scrutiny will have no legal basis for rejecting it. An implied obligation to admit such a ballot-paper to the count thereby arises. Once admitted it is to be counted. Section 268 provides exhaustively for the circumstances in which a ballot-paper may be rejected because it is informal. All of these provisions, like s 279B(7), appear in Part XVIII of the Act. When read with s 279B(7), s 281(2) stipulates that the AEO must "scrutinise" the reserved ballot-papers for the purpose of determining whether the ballot-paper should be "allowed and admitted" or "disallowed and rejected". No criteria are prescribed expressly to guide the AEO in deciding whether a ballot-paper should be allowed or disallowed. Unless the obligation to "scrutinise" the ballot-papers is held to import a requirement that the AEO, when making decisions under s 281(2), is to reject informal ballot-papers, the AEO would be at large in deciding whether a ballot-paper is to be admitted or rejected. In my view, the AEO must determine whether a reserved ballot-paper is or is not informal having regard to the criteria contained in s 268 of the Act. He or she must reject ballot-papers found to be informal and admit those which are found not to be informal. These obligations are imposed by s 279B(7) as incidents of the scrutiny.

17 I do not accept the petitioner’s contention that s 268(3) imposes any obligation on an AEO when he or she is scrutinising reserved ballot-papers for the purpose of making decisions under s 281(2). In a general sense all voters will, ordinarily, intend that any ballot which they cast will be formal and have an influence on the outcome of a particular poll. This is not the intention to which s 268(3) refers. The relevant intention is the intention to vote for the candidates named on the ballot-paper in the order of preference indicated by the figures written on the ballot-paper by the elector. The phrase "according to the voter’s intention so far as that intention is clear" is derived from the statement of Isaacs J, in Kean v Kerby (at 465), that he had resolved a question of form in the writing of figures "in favour of the franchise, there being no doubt as to the real intention [of the voter]." His Honour was stating a principle which he applied, in the conduct of a de novo scrutiny of ballot-papers, for the purpose of determining whether the ballot-paper was formal or informal. Having determined it to be formal he proceeded to count it to determine whether the outcome of the poll had been affected by an incorrect decision that the vote was informal. Under the present legislative scheme the AEO performs a far more limited function. All that he or she does, under s 281(2) is to decide whether each reserved ballot-paper is formal or informal. If a ballot-paper is adjudged to be formal the AEO is required to write "admitted" on the ballot-paper. If a ballot-paper is determined to be informal the AEO is to write "rejected". Having completed the scrutiny the AEO returns the ballot-papers to the DRO. The DRO excludes those papers marked "rejected" from the recount. Those ballot-papers marked "accepted" are included in the recount. The DRO examines each paper with a view to determining how the voter has allocated his or her preferences and applies the preferences accordingly. It is the DRO who thereby gives effect to the intentions of the voter, not the AEO. For these reasons I do not accept that an AEO can be found to contravene s 268(3) of the Act.

18 Once the AEO has made and recorded his or her decision the ballot-papers are returned to the DRO. It is the DRO who conducts the recount, not the AEO. This partly explains why it is that it is not necessary for the Act to confer on the AEO the full range of powers which are granted to AROs and DROs to enable them to undertake all the tasks involved in scrutiny of the polling or any recount of votes. It is sufficient that s 279B(7) be understood to confer on an AEO so many of the powers and duties which are required to conduct those aspects of the scrutiny which are involved in determining whether to admit or reject ballot-papers.

19 It follows, in my opinion, that the AEO will contravene s 279B(7) of the Act if he or she fails to reject a reserved ballot-paper which is informal within the meaning of s 268 of the Act. There will also be a contravention if a formal ballot-paper is not admitted to the count. Such contraventions would constitute "illegal practices" and, therefore, provide a ground on which a petitioner might rely in seeking orders of the kind which are presently sought. The first respondent points out that no breach of s 279B(7) is alleged in the petition. The Act does not, however, require that a petition identify the provisions which it is alleged have been contravened. What is required, by s 355, is that the petition set out the facts relied on to invalidate the return.

20 For these reasons I reject the first respondent’s contention that the petition "cannot succeed". The petition contains allegations of fact which, if accepted, would establish that the AEO has engaged in illegal practices in the course of scrutinising the reserved ballot-papers for the purpose of making decisions under s 281(2) of the Act. I stress that any reference to "illegal practices" on the part of the AEO involved no more than the suggestion that the AEO has made bona fide but mistaken judgments about the formality of reserved ballot-papers.

The second point

21 The second preliminary point raised by the first respondent is related to the first. It is that, where the Court of Disputed Returns reviews decisions made by an AEO under s 281(2) of the Act, it should act as if it were engaged in judicial review. A decision of an AEO would only be set aside if it were found to be so unreasonable that no reasonable AEO could have come to it. The Court should not undertake merits review and make a decision de novo as to whether a particular reserved ballot-paper should be admitted or rejected.

22 The first respondent’s argument assumes that an AEO, in making decisions under s 281(2) of the Act, is not under a statutory obligation to "reject all informal ballot-papers", an obligation which falls on AROs and DROs pursuant to s 274(2)(b), s 274(7)(b) and s 280. A decision by an AEO that a reserved ballot-paper is to be allowed and admitted or disallowed and rejected will, according to the first respondent, constitute a contravention of the Act and, therefore, an illegal practice, only if the decision is so unreasonable that no reasonable AEO could have made it. This would give rise to a constructive failure, by the AEO, to perform the statutory duty imposed by s 281(2) of the Act. Such a failure would amount to a contravention and therefore an illegal practice. In argument, senior counsel for the first respondent stressed that decisions as to whether a particular ballot-paper was or was not informal within the meaning of s 268 was a matter on which reasonable minds might differ. He pointed to the differences of view expressed by members of the NSW Court of Appeal in Bourne v Murphy (1996) 92 LGERA 329 as to the formality of particular ballot-papers.

23 The first respondent directed attention to other considerations which, it was said, support an asymmetry in approach to any review of the exercise of an AEO’s powers under s 281(2). They are:

• the seniority of the AEO within the hierarchy of the Australian Electoral Commission. There are only six AEOs and each is appointed by the Governor-General for a fixed term: see ss 20(1) and 21 of the Act. DROs are, by comparison, more junior officers. They are appointed under the Public Service Act 1999 (Cth): see ss 29 and 32.

• a DRO is required to consider the formality of all ballot-papers being scrutinised or recounted. The AEO is only required to make decisions concerning reserved ballot-papers.

• all reserved ballot-papers will have been rejected or admitted by an ARO and a DRO before being referred to an AEO.

• the AEO has the assistance of scrutineers when making his or her decisions. The Court does not receive such assistance and this is suggestive of a role restricted to the correction of unreasonableness rather than de novo consideration of the formality of reserved ballot-papers.

• correction by the Court of unreasonableness is more likely to be conducive to the expedition mandated by s 363A of the Act than a process of merits review.

24 The argument advanced by the first respondent is, so far as I am able to ascertain, one which has not previously been raised before any Court of Disputed Returns constituted under the Act. In Kean v Kerby Isaacs J examined each disputed ballot-paper and determined whether it should or should not be admitted. He did so on a merits basis. His reasons for decision do not suggest that he was urged to approach his task on any other basis. It is, however, to be noted, as the first respondent points out, that the petition in Kean v Kerby did not allege error on the part of the Commonwealth Electoral Officer (the title was later changed to Australian Electoral Officer) when dealing with reserved ballot-papers. Insofar as the petition alleged errors in the rejection of ballot-papers on the ground of informality the errors were said to have been made by presiding officers and AROs who were clearly bound to undertake the scrutiny in accordance with the terms of the Act and Regulations.

25 In Kennedy v Palmer [1907] HCA 21; (1907) 4 CLR 1481 Barton J also examined individual ballot-papers, ruled on their formality and adjusted the polling figures to reflect his decisions. His Honour was dealing with ballot-papers which had been objected to by a scrutineer as being informal, ruled on by an electoral officer and then, according to the report of the decision "reserved" for the decision of the Court (see: Commonwealth Electoral Act 1902 (Cth) s 157). The Court was, therefore, making decisions on the formality of ballot-papers which had been admitted or rejected by an electoral officer.

26 Courts of Disputed Returns, differently titled and established under State legislation, have also dealt with ballot-papers on the merits: see Tanti v Davies (No 3) [1996] 2 Qd R 602 at 655-661; Re Maryborough Election Petition; Nightingale v Alison [1984] 2 Qd R 214 at 223-4, 226-235.

27 The petitioner drew the Court’s attention to the decision in Bourne v Murphy (1996) 92 LGERA 329. That case involved a summons for dismissal of an elected councillor from office pursuant to s 329 of the Local Government Act 1993 (NSW). The section provided that the Supreme Court could order the dismissal of a person from civic office if there had been any irregularity in the manner in which the person had been elected. An unsuccessful candidate had sought an order from the Supreme Court because the returning officer at a Council election had allegedly declared certain formal votes to be informal thereby affecting the outcome of the poll. Such decisions, if wrong, amounted to an irregularity. The trial judge found and held that there had been an erroneous classification of some of the ballot-papers and that this constituted an irregularity under s 329. He ordered a recount of all the votes. The appellant appealed to the Court of Appeal. Priestley JA (at 340) held that the returning officer’s decision could be set aside only if it was not "within the limits of reasonableness". The other members of the Court (Cole JA and Beazley JA) held that, in general, the Court should conduct a merits review to determine whether a particular vote complied with the legislation and was formal. It was only where a decision to admit or reject a ballot-paper depended on the formation of an opinion by the Returning Officer that an approach akin to judicial review should be adopted: see at 344, 360. The NSW Supreme Court (Court of Appeal) was not sitting as a Court of Disputed Returns in this case. To the extent that the clauses of the Local Government (Election) Regulation 1993 (NSW) correspond with the scrutiny requirements of s 274 of the Act the majority judgments tend to support the petitioner’s arguments.

28 I am not persuaded that the arguments advanced by the first respondent compel the adoption of a more restrained form of review. As first advanced, the first respondent’s argument depended heavily on the acceptance of the contention, which I have rejected, that an AEO, performing his or her duties under s 281(2) of the Act, is not, like AROs and DROs, required to reject informal ballot-papers. As refined during argument, attention was focussed on the different language employed in ss 274(2)(b) and 281(2). AROs and DROs were required to reject informal ballot-papers. The AEO, when considering reserved ballot-papers, had only to decide whether or not those ballot-papers should be admitted to the recount or rejected. Once it is accepted that decisions of AROs, DROs and the AEO to reject ballot-papers all depend on an application of s 268 of the Act, no relevant distinction can be drawn between the two provisions. All these officers have to decide whether or not a ballot-paper is informal within the meaning of s 268. If it is informal it must be rejected. In any event, as I have held, the AEO does undertake a scrutiny of ballot-papers and one element of that scrutiny is the rejection of informal ballot-papers. Kennedy v Palmer and Kean v Kerby support the view that a Court of Disputed Returns, constituted under the Act, should examine disputed ballot-papers and make a fresh decision as to whether or not the ballot-paper is informal, at least where the impugned decision as to formality has been made by a Returning Officer. In my view there is nothing in the legislative scheme which suggests that a different approach should be adopted when the operative decision has been made by an AEO who has undertaken a scrutiny of the ballot-papers for the purpose of making decisions under s 281(2) of the Act.

29 Nor do I find the other arguments advanced by the first respondent to be persuasive. The fact that an AEO (and by parity of reasoning a Court of Disputed Returns) is required to rule on the admissibility of ballot-papers which have already been considered and ruled on by AROs and DROs does not provide a compelling reason for either an AEO or the Court of Disputed Returns adopting the more restrained approach inherent in judicial review. All that an AEO or the Court knows at the time at which their decisions are made is that the ballot-paper has been either accepted or rejected by a DRO and that that decision has been challenged by a scrutineer or that the DRO has chosen, of his or her own motion, to reserve the ballot-paper for the consideration of the AEO. The Court also knows the AEO’s decision. No reasons are given. On most occasions it may be expected that the reason for the challenge to admissibility will be obvious from an examination of the ballot-paper. There will, however, be occasions when there may be more than one reason for treating a ballot-paper as being formal or informal. The reason or reasons which led to the decision to accept or reject the ballot-paper will not necessarily be apparent from an examination of it. Similarly, a decision that a ballot-paper is informal may depend, in some cases, on the formation of an opinion by a DRO: see, for example, s 268(1)(d). Again, in such cases, the AEO and the Court will not have available to them the reasons which led the DRO to exercise his or her discretion in a particular way. In such circumstances it will be impossible for any judgment to be made as to whether the DRO’s decision-making has been attended by legal error. The circumstances in which the AEO and the Court come to exercise their powers tend to suggest that merits review rather than judicial review is called for. One element of the scrutiny is the rejection of informal ballot-papers and the counting of all other ballot-papers. Section 268 makes exhaustive prescription of the circumstances in which a ballot-paper is to be treated as informal. Save for the ground of informality provided for in s 268(1)(d) only questions of fact are involved and the Court is in as good a position as the AEO, a DRO or an ARO to determine whether a particular ballot-paper is formal or informal within the meaning of the Act. A decision on formality, under s 268(1)(d) turns in part upon the opinion of the DRO. In Kennedy v Palmer it was held, that if a petition is lodged with the Court of Disputed Returns, the necessary opinion is to be formed by the Court: see at 1487. There is no reason why a different approach should be taken when an AEO is applying s 268(1)(d) in the course of a scrutiny undertaken for the purposes of s 281(2) of the Act. A decision on admissibility is, then, to be made afresh. In making this fresh decision the AEO will have the benefit of any arguments raised by scrutineers. The Court can seek the assistance of counsel in reaching its decision.

THE INSPECTION OF BALLOT-PAPERS

30 At a preliminary hearing I invited the parties to consider and make submissions as to the procedure which the Court should follow in dealing with the petition. One issue which arose in this context was whether the parties or their legal representatives should have access to the ballot-papers and, if so, how the process of inspection should be managed.

31 The parties differed as to whether an inspection should take place. The petitioner submitted that his legal advisers should have access to the ballot-papers before the hearing. The first respondent opposed any access being given. The Commission was disposed to accept that some form of inspection may be appropriate but that it should be limited to those ballot-papers in respect of which the Court desired to have the assistance of submissions by counsel.

32 There was a threshold issue of whether any inspection was permissible, consistently with the provisions of s 360(1)(iii) of the Act. I had earlier given consideration to the construction of s 360(1)(iii) when dealing with an application by the petitioner that the Commission should be ordered to provide each of the other parties with copies of the reserved ballot-papers. I refused that application because s 360(1)(iii) manifested a clear intention that the Court must not grant leave to parties to inspect and copy ballot-papers: see Mitchell v Bailey [2008] FCA 426. In the course of my reasons I said (at [35]) that:

I did not, in that passage, give consideration to the possibility that an application for inspection might be made after ballot-papers had been transferred into the custody of the Court. I concentrated on the electoral authorities because of various legislative provisions which applied at the time at which the forerunner of s 360(1)(iii) was introduced into the Act in 1922. These provisions required that ballot-papers be retained in the custody of the Divisional Returning Officer for the relevant Division (see: s 218 Commonwealth Electoral Act 1918-1922 (Cth) and reg 76, Electoral and Referendum Regulations 1918 (Cth)). I was also mindful that any inspection or copying which might be permitted under s 360(1)(iii) was to be carried out in the presence of a prescribed officer who would, presumably, be an employee of the Australian Electoral Commission (or its predecessor).

33 The 643 reserved ballot-papers which were ruled on by the AEO in the course of the recount of votes cast in the McEwen Division were transferred into the custody of the Court on 29 February 2008. Argument on the question of whether or not inspection should be allowed occurred after this transfer had taken place and the question of whether or not s 360(1)(iii) prevented the Court from permitting inspection of ballot-papers which were in its custody was thus directly raised.

34 On reflection, I have come to the view that there is no reason why s 360(1)(iii) should not apply, according to its terms, to ballot-papers in the custody of the Court. It is, however, to be borne in mind that this paragraph only prevents the Court from facilitating the inspection of ballot-papers by parties. It does not, in my opinion, prevent the Court from directing that the legal advisers of the parties have access to the ballot-papers during the course of a hearing under the Court’s supervision for the limited purpose of providing assistance to the Court.

35 Whilst maintaining their respective positions as to whether inspection could or should be granted, the parties responded to my invitation to give consideration to a regime which might be put in place in order to facilitate an inspection by legal advisers should the Court be minded to so direct. A large measure of agreement was reached. The procedure involved:

• Court staff numbering each of the ballot-papers sequentially from 1 to 643. (A small sticker bearing a number was placed on the back of each ballot-paper).

• The ballot-papers being maintained in the same envelope and in the same order in which they were received by the Court.

• Access to the ballot-papers by the legal advisers of the parties being provided in the precincts of the Court and under the supervision of an officer of the Court.

• No photocopying of any ballot-paper being permitted.

• No ballot-paper being removed from the Court.

• Following the inspection, the parties’ legal advisers identifying each of the ballot-papers in respect of which it was to be contended that the Court should make a decision different from that made by the AEO.

I found these proposals to be most helpful and they were incorporated in directions which I later gave: see below at [37].

36 I conducted a preliminary examination of the ballot-papers in chambers. Having done so I concluded that I would be assisted by submissions from counsel as to the formality of most of the papers. I determined that the legal advisers should have access to all 643 ballot-papers. Although I did not consider that it was likely that many of the decisions of the AEO would be contested, I wished to ensure that all ballot-papers which had been the subject of dispute, before the AEO, were identified. As already noted the petitioner was unable, in framing the petition, to identify each such ballot-paper and, indeed, was not able to be precise as to the number involved. I could not be confident that I would be able to identify all disputed ballot-papers and preferred that the legal representatives should have the opportunity of selecting those ballot-papers which they wished to put in issue before the Court. Another factor which motivated my decision was that I had, in the course of my preliminary examination, looked at all of the ballot-papers. I did not consider it appropriate that the parties’ legal advisers should not have the same opportunity given the possibility that I might disagree with the AEO’s decision as to the formality of one or more of the ballot-papers which neither party was minded to dispute.

37 Following argument on 21 May 2008 I gave the following directions:

"1. The petitioner’s counsel and instructing solicitors may attend the Registry of the Court on 22 May 2008 and 23 May 2008 and inspect the reserved ballot-papers (as defined in the Election Petition filed 29 January 2008) from 10.00 am until 5.00 pm on each day.

2. The first respondent’s counsel and instructing solicitors may attend the Registry of the Court on 27 May 2008 and 28 May 2008 and inspect the reserved ballot-papers from 10.00 am until 5.00 pm on each day.

3. Any inspection of the reserved ballot-papers must take place in the presence of Timothy Goodwin, associate to Justice North, or Bevan Mailman, Melbourne research associate.

4. Access will be provided to one envelope of reserved ballot-papers at a time. After inspection, the reserved ballot-papers are to be replaced in their relevant envelope in numerical order commencing with the lowest numbered ballot-paper.

5. During any inspection of the reserved ballot-papers, the reserved ballot-papers must not be:

a) marked in any way;

b) photocopied; or

c) removed from the room in which the inspection is conducted.

6. On or before 2 June 2008, the solicitors for the petitioner and the solicitors for the first respondent file and serve lists which identify by number each ballot-paper in respect of which he or she disputes the decision of the Australian Electoral Officer and contain a short statement of the reason or reasons for disputing each decision.

..."

38 The legal advisers of the parties undertook inspection of the ballot-papers under the supervision of an appointed officer of the Court in accordance with these directions. The petitioner identified 146 ballot-papers which, it was contended, the AEO had wrongly accepted or rejected. The first respondent identified 140 ballot-papers which she submitted had been wrongly accepted or rejected by the AEO.

39 On review of the respective lists of the disputed ballot-papers, the legal advisers of the petitioner and the first respondent sought a further opportunity to inspect the ballot-papers to respond to the contentions raised by the other side. Leave was granted for the legal advisers of the petitioner and the first respondent to inspect the ballot-papers for a further day, in accordance with the directions outlined at [37] above.

40 Following a further inspection of the ballot-papers, the petitioner accepted the contentions of the first respondent in respect of 82 ballot-papers, but joined issue with the first respondent in relation to 58 ballot-papers. The first respondent conceded that the petitioner’s challenge should succeed in respect of 16 ballot-papers. She contended that the petitioner’s challenges in relation to the further 130 ballot-papers should fail.

41 In addition, the Court requested submissions on the formality of a further six ballot-papers. Neither the petitioner nor the first respondent had sought to challenge the decision of the AEO in relation to those ballot-papers.

FORMALITY

42 Ballot-papers to be used in House of Representative elections are required to be in the form prescribed in Schedule 1 to the Act: see s 209 and Schedule 1, Form F. That form appears in the Schedule as follows:

FORM F

43 Section 240 of the Act governs the manner in which a voter is to complete the prescribed form. It provides:

"(1) In a House of Representatives election a person shall mark his or her vote on the ballot-paper by:

(2) The numbers referred to in paragraph (1)(b) are to be consecutive numbers, without the repetition of any number."

General principles

44 A failure by the voter to comply with the requirements of s 240 will not always render his or her ballot-paper informal. If an elector expresses a preference for all but one of the candidates whose names appears on the ballot-paper, using sequential numbers starting with 1, the voter will be deemed to have placed the remaining candidate last in order of preference if the square adjacent to that candidate’s name is left blank: see s 268(1)(c). The ballot-paper will be formal notwithstanding the voter’s failure to comply with s 240(1). A ballot-paper which otherwise does not comply with the requirements of s 240 will, however, be informal: see 268(1)(c). So too will be a ballot-paper that has upon it "any mark or writing ... by which, in the opinion of the Divisional Returning Officer, the voter can be identified...": see s 268(1)(d). Section 268 also includes some other, immaterial, criteria which, if satisfied, will render a ballot-paper informal. By s 268(3) a ballot-paper may not be treated as being informal for any other reason. If not informal a ballot-paper must "be given effect according to the voter’s intention so far as that intention is clear." In Langer v Commonwealth [1996] HCA 43; (1996) 186 CLR 302 at 347-8 Gummow J observed that the deeming provision in s 268(1)(c), and the provisos thereto, "operate in aid of the principles that the ballot, being a means of protecting the franchise, should not be made an instrument to defeat it, and that, in particular, doubtful questions of form should be resolved in favour of the franchise where there is no doubt as to the real intention of the voter". (Emphasis added).

45 As noted earlier in these reasons the statutory requirement that effect be given to a voter’s intention is derived from the judgment of Isaacs J, sitting as a Court of Disputed Returns, in Kean v Kerby. The context in which his Honour made these observations is important. One of the irregularities alleged by the petitioner in that case was that seven duly qualified electors had, as a result of errors by electoral officers, been prevented from voting. An issue arose as to whether the Court should receive evidence as to how they would have voted had they been able to do so. Having referred to English authority his Honour continued (at 458 – 460):

46 Later in his reasons, his Honour turned to examine ballot-papers which, it had been complained, had wrongly been admitted or rejected. In dealing with the first of the rejected ballot-papers he said (at 465) that:

47 In dealing with another rejected ballot-paper his Honour said (at 468):

Were it not for his Honour’s statement that he had applied the same principles which he had applied to determine the formality of the first paper he might be understood to hold that, if the Court is in doubt, that doubt should be resolved in favour of the franchise. It is clear, however, that this can only occur where there is no doubt as to the voter’s intention. This was also the approach of Barton J in the earlier case of Kennedy v Palmer where his Honour held (at 1483) that if there is doubt that a voter has so marked his paper as clearly to manifest his preference for a candidate that paper had to be rejected.

48 The tension between a desire to conserve the franchise on the one hand and the need for the Court to be satisfied that the voter’s intention is clear was of concern to the High Court in Kane v McClelland [1962] HCA 26; (1962) 111 CLR 518. The Court of Disputed Returns had referred a question arising in relation to a Senate election to a Full Court. One of the issues raised related to the relationship between s 123 of the Act (which is now renumbered as s 239 and was the Senate provision equivalent of the present s 240) and s 133 (which is now renumbered as s 268). The Full Court said (at 527-8) that:

49 The petitioner and the first respondent sought, respectively, to distil a set of "principles" and "rules" which should guide or inform the determination of whether particular ballot-papers were formal or informal within the meaning of the Act. The petitioner identified seven "principles". In descending order of precedence they were:

• The ballot, being a means of protecting the franchise, must not be made an instrument to defeat it. (Principle 1)

• Doubts as to form should be resolved in favour of the substantial right to vote. (Principle 2)

• Each ballot-paper should be given effect according to the voter’s intention, so far as that intention is clear. (Principle 3)

• When a vote is recorded in writing, the writing itself is the only proper evidence of the way in which the elector intended to vote. (Principle 4)

• As with the interpretation of any other document, the ballot-paper should be construed as a whole. (Principle 5)

• If there are two possible interpretations of a ballot-paper, the interpretation more likely to accord with the voter’s intention should be preferred. (Principle 6)

• If there are two equally likely interpretations of a ballot-paper, only of which would result in the ballot-paper being informal, the other interpretation should be preferred. (Principle 7)

50 The first respondent identified three "rules". They were:

• Doubtful questions of form should be resolved in favour of the franchise where there is no doubt as to the real intention of the voter, i.e., where the voter’s intention is clear. (The first rule)

• In seeking to ascertain the intention of the voter, it is impermissible to act on mere inference, conjecture or speculation. (The second rule)

• In seeking to ascertain the intention of the voter, the ballot-paper may be considered as a whole. (The third rule)

The Australian Electoral Commission accepted that the first five Principles propounded by the petitioner were consistent with the Act. It did not consider that Principles 6 or 7 added anything useful to what was to be found in the first five Principles.

51 These formulations reflect a measure of agreement between the parties on the approach which should be adopted when determining whether a ballot-paper is formal or informal. Something should, however, be said about the terminology which has been adopted. In a case such as the present, a Court of Disputed Returns is required to examine ballot-papers which have been completed by people of differing ages, health standards, cultural backgrounds and educational levels to mention but a few of the many variables which obtain. These voters annotate their ballot-papers with such a wide variety of different marks which cause the formality of the ballot-papers to be called into question that it is not possible to frame prescriptive "rules" to resolve disputes. Value judgments informed by principle are required.

52 In my view the two cardinal principles are those identified by Gummow J in Langer v Commonwealth namely "that the ballot, being a means of protecting the franchise, should not be made an instrument to defeat it and that, in particular, doubtful questions of form should be resolved in favour of the franchise where there is no doubt as to the real intention of the voter." These principles are given statutory force by s 268(3) of the Act. Other, subordinate, principles may be identified which assist in giving effect to the two cardinal principles. These are:

• When seeking to determine the voter’s intention resort must be had, exclusively, to what the voter has written on the ballot-paper.

• The ballot-paper should be read and construed as whole.

• A voter’s intention will not be expressed with the necessary clarity unless the intention is unmistakeable and can be ascertained with certainty. A Court of Disputed Returns must not resort to conjecture or the drawing of inferences in order to ascertain a voter’s intention.

I do not consider that Principles six and seven, proposed by the petitioner, are helpful. If two possible or equally likely interpretations of a ballot-paper are open the voter’s intention will not have been expressed clearly. Unlike Principle 3, these two formulations do not require that the voter’s intention be clear. If it is, Principle 3 will operate and Principles 6 and 7 will be otiose. If the intention is not clear the latter Principles will invite the drawing of impermissible inferences or reliance on conjecture.

53 An issue arises as to the sense in which the word "intention" is used in Gummow J’s formulation. In a general sense, a voter will have the intention to vote formally or, in some exceptional cases, informally. The exceptional case will be that in which the voter makes it plain that he or she doesn’t wish to vote in the election by, for example, lodging a blank ballot-paper or defacing an uncompleted ballot-paper. Normally, however, it will be appropriate to assume that the voter wished to vote formally. Despite such an intention, however, this objective may not be achieved as a result of mistake or oversight. This is not the intention to which his Honour refers. The context suggests that the relevant intention is the voter’s intention to express a preference for each candidate in a particular order. The authorities to which I have referred, in my view, require that each ballot-paper be examined with care to ascertain whether or not it evidences the voter’s intention in this sense. If it does then effect should be given to the intention. If the paper discloses an intention to vote in a manner consistent with the requirements of the Act then the vote will be formal. If it does not then the vote will be informal. The franchise will be preserved if effect is given to the clear intention of the voter insofar as it may be discerned from an examination of the ballot-paper completed by him or her. It will not be preserved if an Electoral Officer or the Court substitutes its own speculative opinion as to what the voter is presumed to have intended.

54 In seeking to give effect to this approach in dealing with the reserved ballot-papers in the present case it is necessary to bear in mind that voters come from a range of cultural backgrounds. The same figure may be written differently by different people. Many people, for example, place a horizontal stroke across the vertical stem of the figure seven. Some commence the figure one with an upward angular stroke before writing the familiar vertical stroke. A ballot-paper will not be informal merely because one or more of these variants is used. It is also to be remembered that many voters are old or infirm and that, for these reasons, some are not able to write with firm strokes. Figures formed from wavy lines appear in many papers. So long as the resulting figures are intelligible the ballot-paper will be treated as formal. Some voters, having placed a number in a particular square then either realised that he or she had made a mistake or changed his or her mind. Instead of obtaining a new ballot-paper the voter has overwritten the original number with a different number. Where this has occurred and the overwritten number is clearly legible I have treated the overwritten number as expressing the true intention of the voter.

55 It is also necessary to consider each ballot-paper as a whole. Electors are required to place consecutive numbers opposite the names of each candidate. If, as is the present case, there are eight candidates and the elector has written seven of the eight numbers clearly and the remaining notation bears a reasonable resemblance to the eighth number it will more readily be concluded that what appears is the remaining number than might be the case if the notation is examined in isolation. The Court will not, however, assume that a mark is a representation of a missing number in a sequence if it resembles a number already inscribed on the paper or if it bears no reasonable resemblance to any identifiable figure. Some submissions made by both the petitioner and the first respondent sought to suggest that an illegible notation should be treated as a missing number when it was examined "in the context of the ballot-paper as a whole" or when "considering the ballot-paper as a whole." In my view such submissions amounted to a veiled invitation to make a guess as to the voter’s intention. Such invocations were only of assistance when they were directed to notations which bore a reasonable resemblance to the "missing" number.

Initials

56 Three ballot-papers (numbers 232, 530, and 596) had on them what appeared to be initials. These initials had been placed adjacent to alterations which had been made to a number which the voter had earlier placed on the ballot-paper. The inclusion of these initials on the ballot-papers raised two construction points under s 268(1)(d) of the Act. That paragraph provides that a ballot-paper will be informal if "it has upon it any mark or writing ... by which, in the opinion of the Divisional Returning Officer, the voter can be identified...". The questions are whether the initials are marks by which the particular voter can be identified and whether, if the issue arises in the Court of Disputed Returns, it is the Divisional Returning Officer’s opinion on the point or that of the Court which is to be determinative.

57 The first respondent argued that I was bound by Kennedy v Palmer to hold that, where initials had been placed on the ballot-paper the ballot-paper was, for that reason, informal. Mine was to be the operative opinion.

58 The petitioner sought to distinguish Kennedy v Palmer on the ground that there was no current equivalent of s 157 in the Act. It was also submitted that the "modern test" was that propounded in Re Maryborough Election Petition; Nightingale v Alison [1984] 2 Qd R 214 at 225: "a real chance of identification must be apparent before a vote should be regarded as informal." Reference was also made to Nightingale and to Bourne v Murphy to support the proposition that, where a discretion is vested in a Returning Officer, the Court of Disputed Returns should a apply a restrained judicial review style approach to reviewing the decision and not act on its own merits based opinion.

59 In Kennedy v Palmer Barton J had to determine the formality of a number of ballot-papers upon which voters had placed markings (including initials) on their ballot-papers additional to those markings necessary to indicate their voting preferences. At the time s 158(d) of the Act rendered informal any ballot-paper which had "upon it any mark or writing not authorized by this Act to be put upon it which in the opinion of the Returning Officer will enable any person to identify the voter." If a scrutineer objected that a ballot-paper was informal because it had upon it additional markings the Returning Officer was required, by s 157 of the Act, to mark "admitted" or "rejected" on the ballot-paper to record his decision on the objection. Section 157 provided that "such decision shall be final, subject only to reversal by the Court of Disputed Returns." Barton J held (at 1487) that the relevant opinion in the Court of Disputed Returns was that of the Court. If the Court’s opinion differed from that of the Returning Officer then the Court’s opinion prevailed. His Honour provided the following guidance as to the formation of the opinion (at 1484):

"I am therefore of opinion that it is not enough, in the absence of all extraneous evidence, to urge that there are marks which might by some possibility enable some one to identify the voter. The case is palpable where voters have placed their names or initials on the ballot-paper, and tolerably plain where there occur names or initials evidently not written by the presiding officer and therefore in all probability written by voters. The question is one of opinion formed on very varying facts, and the Court must be guided to its conclusion merely by applying its common sense to the consideration of the marks or writings, and treating each case on its merits." (Emphasis added)

60 In Kean v Kerby Isaacs J applied merits review to all ballot-papers regardless of whether the original decision as to formality turned on the opinion of a Returning Officer or not.

61 In Re Maryborough Election Petition; Nightingale v Alison Thomas J, sitting as the Elections Tribunal, considered a petition brought pursuant to the Elections Act 1983 (Qld) ("the Elections Act"). The petitioner challenged the results of an election in one of the seats in the State Parliament. One of the grounds was that certain ballot-papers were informal because they had initials inscribed on them. Section 103(1)(b) of the Elections Act required that a ballot-paper that had "upon it any mark or writing not authorized by this Act to be put thereon which in the opinion of the returning officer will or may enable any person to identify the ballot-paper or the elector" should be rejected. Thomas J held that, save where a decision on formality turned on the negative opinion of the Electoral Officer, merits review by the Tribunal was required. Despite being referred to Kennedy v Palmer and Kean v Kerby, his Honour concluded that a judicial review type approach was required where a negative decision on formality had been made under s 103(1)(b) of the Elections Act. His Honour did not distinguish Kennedy v Palmer on the ground that there was no express equivalent to s 157 of the Commonwealth Electoral Act as it stood in 1907 in the Elections Act. A power of an Election Tribunal to reverse the decision of an Electoral Officer could be implied in various provisions of the Elections Act which were substantially similar to ss 360(1)(v), (vi) and (vii) and 361(1) of the Act. His Honour rather relied on a line of authority which could be traced to the dictum of Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353 where his Honour, in dealing with a challenge to a decision which turned on the formation of an opinion by the Commissioner of Taxation held (at 360) that:

His Honour also referred to Federal Commissioner of Taxation v Brian Hatch Timber Co (Sales) Pty Ltd [1972] HCA 73; (1972) 128 CLR 28 in which a similar approach had been adopted by the High Court. To these authorities may be added Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 at 118-9 and Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 275-6 the latter of which post dated Nightingale v Alison. His Honour concluded (223-4):

In considering whether the Returning Officer had erred in law in his approach to ballot-papers containing initials, his Honour noted that the original reason for legislative provisions rendering such ballot-papers to be informal was that the placing of initials on ballot-papers was a means by which people who had been bribed to vote for a particular candidate could satisfy the person paying the bribe that they had voted as promised. This occurred where those seeking to influence the outcome of elections had access to the ballot-papers. His Honour held (at 225) that:

62 In my view I am bound by Kennedy v Palmer to hold that, if it is necessary for the Court of Disputed Returns to determine whether a ballot-paper is informal pursuant to s 268(1)(d) of the Act, the relevant opinion is that of the Court. Although there is, in the present Act, no equivalent of the former s 157, the Court’s powers under Division 1 of Part XXII of the Act clearly require it to apply the same statutory provisions and exercise the same statutory powers as those conferred on electoral officers for the purpose of determining the formality of ballot-papers. For reasons earlier given (above at [28] and [29]) I consider that the Court is required to make its own merits-based decisions in respect of the validity of reserved ballot-papers. The process is not one of judicial review. In Nightingale v Alison, Thomas J was minded to accept that judicial review should be applied to a decision of an electoral officer to reject a ballot-paper on the ground of possibility of identification but not a decision to allow the ballot-paper despite objection that it was informal by reason of initials appearing on it. His Honour did not explain the reason for this distinction and, with respect, I consider it to be untenable.

63 I do not, however, consider that I am bound, by Kennedy v Palmer to hold that any ballot-paper that has any initial on it is informal. Barton J held that, where initials appeared on a ballot-paper, "some possibility" arose that "some one" might be able to identify the voter. In such circumstances the case for informality was "palpable". I understand his Honour to be using the word "palpable" in the sense of "obvious" or "readily or plainly seen" rather than "invariable". The smaller the electorate and the less common the initials among those enrolled to vote in the electorate, the more likely it will be that initials will serve to identify the voter. Barton J was dealing with an electorate which had approximately 16,000 voters in it. Almost 100,000 people voted in the division of McEwen in November 2007. In forming the opinion which s 268(1)(d) requires it will be necessary to have regard to the actual initials placed on the three ballot-papers and to the number of electors sharing those initials. It will also be necessary to consider the identity of the "some one" to whom Barton J referred.

64 The phrasing of s 268(1)(d) begs the question, by whom "the voter can be identified". A family friend or a close personal relative of the voter might readily identify the voter’s handwriting and recognise the initials as those of the voter. On the other hand, an electoral official, a scrutineer or a judge constituting the Court of Disputed Returns who did not know the voter would not be able to identify the voter merely by looking at the initials. In my view, s 268(1)(d) will only render a ballot-paper on which initials have been written informal if the notation would enable a person who is authorised by the Act to have access to the ballot-paper to identify the voter.

65 Ballot-paper 232 had overwriting in every square. At the bottom of the line of squares the initials "KC" appear. Apart from the writing of the initials on the ballot-paper there is no reason to question its formality. The vote was cast at the Mill Park Lakes polling place on election day. The Australian Electoral Commission has advised that there were 15 electors with the initials "KC" who were enrolled to vote in the electoral division of McEwen and who voted at the Mill Park Lakes polling place on 24 November 2007.

66 Ballot-paper 530 has corrections made to the numbers appearing in the first five squares. The numbers originally placed in the squares have been overwritten and different numbers have been placed adjacent to the squares. Above the first square in which the changes were made there appears the annotation "EL 24/7"; above the second to fifth squares appears the annotation "EL 24/11". Apart from these annotations there is no reason to question the formality of the ballot-paper. The vote was cast by an absent voter. The Australian Electoral Commission advised that there were 10 electors with the initials "EL" who were enrolled to vote in the electoral Division of McEwen and who voted as an absent voter in the election.

67 Ballot-paper 596 has an overwritten figure in the first square. Adjacent to that square is an annotation which may be the letter "D" but that is by no means clear. It is sufficient, for present purposes, to say that, on no view, could the annotation serve to identify anybody.

68 The initials on ballot-papers 232 and 530 are clearly written. They do not, however, enable me to identify the voters who placed the initials on the ballot-papers. Even had I had resort to the Electoral Roll I could not have determined the names of the voters because there were a considerable number of electors in the Division of McEwen who had the same initials. In the case of ballot-paper 596 the initial is not even clearly written. It offers no assistance in identifying the voter.

69 Accordingly, in my opinion, the unauthorised markings or writing on each of the three ballot-papers do not allow the voter to be identified. It follows that, there being no other basis upon which any of the ballot-papers might be considered to be informal, each of the ballot-papers is formal and should be admitted to the count.

Lack of Official Markings

70 Unlike all of the other reserved ballot-papers, papers numbered 641, 642 and 643 do not bear the presiding officer’s initials. The circle in which those initials appear on all other ballot-papers is blank on each of these ballot-papers. The formality of these three ballot-papers is thereby placed in question.

71 By s 268(1)(a) it is provided that a ballot-paper shall be informal if:

72 The term "official mark" is explained in s 209A of the Act:

(a) a water mark consisting of a representation of a shield having within it the letters "CA" intertwined; or

(b) an overprinting of the paper in a particular manner, and using words, a design or a logo, approved by the Electoral Commission."

73 Section 268(2) qualifies s 268(1)(a) by providing that a ballot-paper shall not be informal "if the Divisional Returning Officer responsible for considering the question of the formality of the ballot-paper is satisfied that it is an authentic ballot-paper on which a voter has marked a vote."

74 Ballot-paper 641 is in the same shade of green as the other reserved ballot-papers. It does not, so far as I can see, have a watermark on it. It has a logo at the bottom with the letters "AEC" under which is printed "Australian Electoral Commission" beside an outline map of Australia. There is no evidence before the Court which enables me to determine whether the logo is one falling within the terms of s 209A(b). Apart from the possible absence of an "official mark" and the absence of initials of the presiding officer, there is no reason to question the formality of this paper.

75 Ballot-paper 642 is different in a number of respects from the other reserved ballot-papers. It is coloured in a different shade of green from the other ballot-papers and it is longer than the other ballot-papers. It bears the same AEC logo as ballot-paper 641 at the bottom. On the back, a person who, I assume, is the Divisional Returning Officer has written:

So far as I can see the ballot-paper bears no watermark. Apart from the absence of the initials of the presiding officer and the possible absence of the official mark there is no reason to question the formality of this ballot-paper.

76 Ballot-paper 643 is in the same shade of green as the other reserved ballot-papers (apart from ballot-paper 642). So far as I can see it bears no watermark. It bears the same AEC logo which appears on the other two pages. On the back a person, who I assume to be the Divisional Returning Officer, has written:

Despite this, the paper does not bear the words "Postal Ballot-paper." There is no other reason to question the formality of this ballot-paper.

77 On the evidence presently before the Court, it is my view, that each of these three ballot-papers is informal within the meaning of s 268(1)(a). There are no authenticating initials on any of the papers. No explanation for their absence was proffered. There is no visible watermark. There is no evidence that any design or logo appearing on the ballot-papers is a design or logo approved by the Electoral Commission. The proviso in s 268(2) does not apply. There is no evidence before me as to whether or not the Divisional Returning Officer was satisfied that any of the papers was "an authentic ballot-paper on which the voter has marked a vote". The Divisional Returning Officer has only annotated ballot-paper 641 with the words "Admitted on recount 14/12 RB". The annotations made by the Divisional Returning Officer on the other two ballot-papers do not evidence an opinion as to the authenticity of the ballot-paper. They do no more than express a view as to the source from which the paper was received. They were supposedly postal votes but ballot-paper 643 does not bear the words "Postal Ballot-paper" as required by s 209(5) of the Act. Nor does it contain the additional words mandated by that sub-section.

78 I have, accordingly, formed the view that ballot-papers 641, 642 and 643 are informal pursuant to s 268(1)(a) of the Act.

Roman Numerals?

79 Ballot-paper 24 presents a peculiar problem. The numbers 2 to 8 inclusive are clearly written in Arabic numerals. In the square adjacent to the name of one candidate there is marked what appears to be the letter "N" beside the figure "1". The first respondent submits that this ballot-paper is informal. She says that this annotation does not constitute an indication of a first preference. The AEO rejected the ballot-paper. The first respondent relies on the decision in Nightingale v Alison to support her submission. The petitioner contends that a discernable figure one appears thereby indicating the voter’s first preference.

80 One of the ballot-papers considered by the Elections Tribunal in Nightingale v Alison had, in one square, two parallel number ones. This vote was disallowed by the returning officer and by the Tribunal. Thomas J said (at 234) that:

81 One possibility, suggested by the first respondent, is that the notation was intended to be a Roman III. A close examination of the paper, however, discloses that the top of the left hand upright stroke is joined to the bottom of the adjacent upright stroke by a clear line forming the letter "N". The voter has not, in my opinion, written a Roman III. The N may have been used to signify the word "number". Whether that be right or not, the Arabic numeral 1 clearly appears in the square. In my view there is no doubt as to the voter’s intention: it was to express a first preference for the candidate whose name appeared adjacent to the square. The ballot-paper is formal.

CONSIDERATION OF THE BALLOT-PAPERS

82 It was common ground that it was necessary that I examine and rule on each of the reserved ballot-papers. This was because of the requirement in s 362(3) that, if illegal practices occurred in relation to the election, I could not grant relief to the petitioner unless I was satisfied that the result of the election was likely to be affected by those practices. In many instances the petitioner and the first respondent did not challenge the decision taken by the AEO or were agreed that the AEO’s decision was wrong. In other cases there was disagreement between the petitioner and the first respondent as to whether particular ballot-papers were formal or informal.

83 Where submissions had been made in respect of a particular ballot-paper I considered the parties’ submissions before making a fresh decision as to whether the ballot-paper was formal or informal. Where there was disagreement between the parties or, in the very few cases where I disagreed with the common position of the parties, I recorded my reasons for my decision in summary form. All my decisions and, where necessary, the reasons for them are recorded in the schedule attached to these reasons.

84 The result of my rulings on the admissibility of the reserved ballot-papers is that the petitioner has 48,312 votes, the first respondent has 48,339 votes and there are 3,982 informal votes. These results have been calculated by taking the results from the recount (the petitioner had 48,253 votes; the first respondent had 48,265 votes, see above at [4]), subtracting the votes where the AEO decided the ballot-papers were formal but the Court found the ballot-papers were informal (7 in the case of petitioner and 2 in the case of the first respondent), and adding the votes where the AEO decided the ballot-papers were informal but the Court found the ballot-papers were formal (66 in the case of petitioner and 76 in the case of the first respondent). Where an elector had expressed a first preference for a candidate other than the petitioner or the first respondent the vote was (as the case required) either subtracted from or added to whichever of the petitioner or the first respondent had received the higher of the voter’s remaining preferences.

85 It was agreed at the last hearing that the parties should have the opportunity of considering these reasons before making submissions as to what, if any, orders should be made by the Court. One matter which may require attention is whether any double voting which may have occurred was likely to have affected the close result of the election. I will give directions with a view to dealing with these issues as quickly as is possible.

86 As I have found that some ballot-papers which had been admitted to the count were informal and should have been rejected and that others which had been rejected were formal and should have been counted, illegal practices, within the meaning of the Act, have occurred. The only other direction which I will give at this stage is a direction to the Registrar, pursuant to s 363 of the Act, to report my findings to the Special Minister for State. I have already drawn attention (above at [9]) to the potential for the term "illegal practice" to be misleading. Any error on the part of the AEO which has led to a contravention of the Act was, I am sure, inadvertent. There can be no suggestion that the contraventions arose from any deliberate breaches of the Act.

Associate:



Dated: 2 July 2008