Bridge v Bowen [1916] HCA 38;

Bridge v Bowen [1916] HCA 38; - HCA 1916 case summary — Zoe

[8]

A Full Bench of the Court was assembled to deal with the case because it is one of far-reaching importance, not only to the people of Sydney but to the whole Commonwealth. The question for decision is whether, when at an election conducted by ballot where there are no means of identifying the ballot papers cast by individual voters a number of persons not entitled to vote have by means of personation succeeded in voting and the number of such persons is greater than the difference between the number of votes cast for a candidate who is declared elected and that cast for the candidate who obtains the next highest number, the election can be impeached. The only alternative is that the personated votes must be counted as valid and effectual for all purposes. Such a proposition is so shocking that it bids one pause before holding that it is a part of the unwritten law of the realm. It is certainly not to be found in the Statute Book. The election laws of the Commonwealth and of most of the States are in this respect not distinguishable from the provisions of the Sydney Corporation Act, so that the decision in the present case must govern the whole of the Commonwealth. If the appellant's contention is sound, this result, amongst others, would follow: that if at an election for the Senate it appeared that a number of personators had succeeded in voting, the number of whom was greater than the majority by which the votes cast for the candidates returned exceeded the number of votes cast for the candidates next on the list, the election would be valid, and the persons returned as Senators would hold their seats for six years, although it would be quite uncertain whether a majority of qualified electors had or had not voted for them. For, as already pointed out, it is impossible under the system of ballot in force here to ascertain the fact. Where, as in the United Kingdom, the system of numbering the ballot papers is adopted, the difficulty cannot arise, for the ballot paper of the personator can be identified and rejected on a scrutiny. Before the ballot was adopted, and when voting was open, it was equally possible to identify a personator's vote and reject it. No direct assistance, therefore, is to be looked for in British decisions, and recourse must be had to the unwritten law, sometimes spoken of as the "common law of elections."

[16]

Before the elaborate statutory provisions now in force in the United Kingdom and Australia relating to the conduct of elections, a breach of any of which may entail the invalidity of the election, were enacted, the grounds on which the validity might be impeached were practically confined to cases in which such influence was brought to bear upon large bodies of the electors as to justify the belief that the choice was not free and deliberate. (I remark, in passing, that the invalidity of an election for non-compliance with such statutory provisions is not usually declared by Statute, but is left to follow from the application of the common law of elections.) The principal grounds for impeaching an election at common law in the United Kingdom were undue influence, intimidation, general corruption, and riotous disturbance during the election. Each of these cases gave rise to the application of the same general rule, which was afterwards applied by the Courts to breaches of statutory provisions regulating elections. If either of these conditions was shown to have prevailed to such an extent as to be likely to have affected the freedom of choice, the election was declared void. It is manifest that in such cases it was generally impossible to prove affirmatively that the result of the election was affected. It was therefore always held sufficient to establish that the extent of the improper practices or other disturbing elements was such as to show good ground for believing that the final result might probably have been affected. The extent of the corrupt or illegal practices was, consequently, a material point. It is evident, for instance, that if the successful candidate had a majority of 500, and the evidence of intimidation or undue influence was limited to 50 persons, the freedom of choice of the whole electorate was not likely to have been affected. This was very clearly pointed out by Bramwell B. in the North Durham Case[2]: - "I take it that the law is this: first of all, there is the statutory intimidation, that contemplated by the Statute, if one may use such an expression, that is, an intimidation contemplated by the Statute which avoids the seat, where a candidate or his agent is guilty of it. But besides that there is another intimidation that has been called a common law intimidation, and it applies to a case where the intimidation is of such a character, so general and extensive in its operation that it cannot be said that the polling was a fair representation of the opinion of the constituency. If the intimidation was local or partial, for instance, if in this case it had been limited to one district, as Hetton is, I have no doubt that in that case it would have been wrong to have set aside this election, because one could have seen to demonstration that the result could not possibly have been brought about by intimidation, and that the result would not have been different if it had not existed. I do not mean the result of the polling in that particular district, but the general result of the majority for the respondents. But where it is of such a general character that the result may have been affected, in my judgment, it is no part of the duty of a Judge to enter into a kind of scrutiny to see whether possibly, or probably even, or as a matter of conclusion upon the evidence, if that intimidation had not existed, the result would have been different. What the Judge has to do in that case is to say that the burden of proof is cast upon the constituency whose conduct is incriminated, and unless it can be shown that the gross amount of intimidation could not possibly have affected the result of the election it ought to be declared void. Now in questions of this sort one must look not only to the amount of intimidation, but to the absolute majority which has been obtained. It was the opinion of Mr. Justice Willes, and I believe it is not inconsistent with the opinion of Mr. Justice Keogh, as expressed in that celebrated and most useful judgment which he gave in the Galway Case, that you are to look at the probable effect of intimidation, which consists of two things, the extent and operation of the intimidation, and the majority which the sitting members got. Now, I think if it were otherwise, and if one were told that partial intimidation would avoid an election, although it were certain that it had not affected the result of the election, the consequence would be that a few mischievous persons might upset every election. On the other hand, if one were inclined to go into a kind of scrutiny the consequence would be that one might make a very great many mistakes; besides, I am of opinion that, where there has been so large an amount of intimidation that it is uncertain whether the result would have been the same without it, it cannot be said that the election was free, or that it represented the real opinion of the constituency, but that it must be held void on account of that uncertainty."

[20]

In the case of Woodward v. Sarsons (1875)[4], which was the case of a municipal election, the Court said: - "We are of opinion that the true statement is that an election is to be declared void by the common law applicable to parliamentary elections, if it was so conducted that the tribunal which is asked to avoid it is satisfied, as matter of fact, either that there was no real electing at all, or that the election was not really conducted under the subsisting election laws. As to the first, the tribunal should be so satisfied, i.e., that there was no real electing by the constituency at all, if it were proved to its satisfaction that the constituency had not in fact had a fair and free opportunity of electing the candidate which the majority might prefer. This would certainly be so, if a majority of the electors were proved to have been prevented from recording their votes effectively according to their own preference, by general corruption or general intimidation or by being prevented from voting by want of the machinery necessary for so voting, as, by polling stations being demolished, or not opened, or by other of the means of voting according to law not being supplied or supplied with such errors as to render the voting by means of them void, or by fraudulent counting of votes or false declaration of numbers by a returning officer, or by other such acts or mishaps. And we think the same result should follow if, by reason of any such or similar mishaps, the tribunal, without being able to say that a majority had been prevented, should be satisfied that there was reasonable ground to believe that a majority of the electors may have been prevented from electing the candidate they preferred. But, if the tribunal should only be satisfied that certain mishaps had occurred, but should not be satisfied either that a majority had been, or that there was reasonable ground to believe that a majority might have been, prevented from electing the candidate they preferred, then we think that the existence of such mishaps would not entitle the tribunal to declare the election void by the common law of Parliament."

[27]

That case was an application for a writ of quo warranto to oust from office a person who had been elected a trustee of the harbour of Whitehaven on the ground that a majority of the persons admitted to vote were not qualified to vote and that it did not appear that he had a sufficient number of legal votes to entitle him to the office. The election was held under the provisions of several local Acts, which are not set out in the report further than to say that they required that on certain specified days fourteen persons were to be chosen by ballot by a majority of the inhabitants of the harbour of Whitehaven then dealing in goods subject to certain duties, or masters or holders of a sixteenth share in vessels belonging to the harbour of Whitehaven. Evidence was given that all persons who claimed to vote were allowed to do so. One deponent stated that he believed that the majority of the persons who voted for Jefferson were not qualified, and that he also believed that if none but qualified persons had voted Jefferson would not have been elected. It was alleged in other affidavits that 1,060 persons voted, and that about 600 of them were not qualified. These affidavits were contradicted, and evidence was given to show that persons wishing to dispute the qualification of intending voters had an opportunity of doing so, and that some were in fact refused upon objections so taken. In showing cause against the rule Sir James Scarlett (afterwards Lord Abinger) argued that no defect of title to the office was shown, that nothing was stated as to any person who voted for Jefferson but a belief that many of them were not qualified, and it was not said that any of them were objected to. The Court then called on Mr. Coltman (afterwards Coltman J.), who contended that there must be some means of raising the question, and that the application for a quo warranto was the proper course. Parke J. remarked that it had been objected in that Court before to the taking of votes by ballot - that it made a scrutiny impracticable. The reference was apparently to the case of Faulkner v. Elger[13], where Holroyd J. is reported to have said: - "I have great doubt, also, whether election by ballot be a legal mode of election or not. Some advantage may accrue from it, such as avoiding ill will amongst the parishioners, and leaving the voters uninfluenced; but I think that it is the duty of the returning officer to see that the person returned is duly elected, and that he is bound to use reasonable means to attain that end. Now if he takes down the names of the voters, and the persons for whom they vote, and it afterwards appears that any person has been admitted to vote who has no right to vote, his name may, on a scrutiny, be struck off. In the case of an election by ballot, the returning officer puts it out of his power to ascertain whether the party who voted had a right to vote or not." Mr. Coltman then contended that if a quo warranto went it would lie upon Jefferson to prove how the votes were recorded, to which Lord Denman C.J. rejoined that that would be against the principle of the ballot. After further argument it was urged that if this were not allowed there would be no means of investigating the votes, on which Taunton J. remarked[14], "That is the vice of the system: we are not bound to find a remedy for it," and Parke J. said, "The only remedy would be to exclude bad votes at first." The judgment of the Court was[15]: "No primâ facie case is made for this application. The officer is called upon to show title without the possibility of proving it. All the bad votes may have been for the opposing party"; and the rule was discharged.

[57]

This view appears to me to be supported by the case of Woodward v. Sarsons[34], where the judgment of the Court, read by Lord Coleridge C.J., demonstrates that the provisions and rules of the Ballot Act 1872 Eng. (35 & 36 Vict. c. 33) did not prevent the Court from applying to elections the rules of the common law not displaced by the Statute. The question for decision material to this case was, what is the rule under which an election may be avoided under the common law of Parliament? Under this head, the Court was of opinion[35] that "the true statement is that an election is to be declared void by the common law applicable to parliamentary elections, if it was so conducted that the tribunal which is asked to avoid it is satisfied, as matter of fact, either that there was no real electing at all, or that the election was not really conducted under the subsisting election laws. As to the first, the tribunal should be so satisfied, i.e., that there was no real electing by the constituency at all, if it were proved to its satisfaction that the constituency had not in fact a fair and free opportunity of electing the candidate which the majority might prefer." (His Lordship gave a number of illustrations, which did not include personation as here complained of; but the enumeration did not, in my judgment, exclude this case any more than it excluded others which come within the principle enunciated.) His Lordship went on to say[36]: "we think the same result should follow if, by reason of any such or similar mishaps, the tribunal, without being able to say that a majority had been prevented, should be satisfied that there was reasonable ground to believe that a majority of the electors may have been prevented from electing the candidate they preferred." The Court of course held that if the proof only satisfied the tribunal that certain of such mishaps had occurred without affording reason to believe that there had been or might have been a prevention of the electors from expressing their will by electing the candidate they preferred, the tribunal could not, because of the mere existence of such mishaps, declare the election void by the common law. In arriving at this conclusion the Court compared the judgments of Grove J. at Hackney[37] and at Dudley[38], with those of Martin B. at Salford[39] and of Mellor J. at Bolton[40]. All these judgments were held to express, but more accurately, the grounds of the decisions of the Committees of the House of Commons in many cases before they were supplanted by a judicial tribunal. "As to the second" (alternative), "i.e., that the election was not really conducted under the subsisting election laws at all," it was held[41] that though there was an election in the case under review "in the sense of there having been a selection by the will of the constituency, that the question must in like manner be, whether the departure from the prescribed method of election is so great that the tribunal is satisfied, as matter of fact, that the election was not an election under the existing law." Great mistakes in carrying out an election under those laws would not be enough. To be held void for that cause the election must have been carried out, not under those laws, but, either wilfully or erroneously, under some other method.

[59]

The West Islington Case[42] was decided on grounds which, though within the decision of Woodward v. Sarsons[43], were not within that part of it which is material to the present case. The Election Petition Court there consisted of Kennedy and Darling JJ., and I mention the case merely for the purpose of pointing out that it was there held that the burden of proving that the irregularity did not affect the return of the candidate rested on the respondents to the petition, that is, on the candidate declared elected and the returning officer, who was one of the respondents in that case, but who is not a necessary party to the present case. Gribbin v. Kirker[44], which was cited to us, was dismissed with the observation that if it was an authority for anything at all, it was an authority for the opinion expressed as to the burden of proof. It may be that the Legislature of New South Wales, in using the term "unduly elected," wished to enable the Court to say that a proceeding was an undue election if upon the facts it could not be said to be a due election. As was pointed out by Mr. Knox, if it appears to be equally consistent with the facts before the Court that a person declared to be elected was or was not elected in the only true sense, namely, by the actual choice of qualified electors, what more has the applicant to prove so as to show that the will of the constituency has yet to be ascertained? What difference is made by the returning officer's declaration that a thing not ascertained is a fact? If the facts established that uncertainty, then does not the assumed election go for nothing? Granted that it is impossible for the respondent in the proceedings to prove his right to the return which the officer has made, that is beside the question if the uncertainty is once established. If it cannot be said there was a real election, that is ground enough for voidance, and the applicant is not to be forced to go further merely by reason of the returning officer's declaration. It is the right of the citizens concerned to have a true election, and there is only one way of securing that. If a proceeding is once shown to be void, how can he who has shown that be expected to give in addition proof that the proceeding was really valid and in his favour?

[60]

Some light as to the true criterion of a real election may be gained from the history of the matter. At first the method of election was by show of hands, unless indeed it was also allowable to decide by voices. Brooke C.J. said, in the old case of Buckley v. Rice Thomas[45], in which the Sheriff of Carnarvon was sued for a penalty for wrongfully returning another candidate as Knight of the Shire in place of the plaintiff, who claimed the majority of votes: - "The election might be made by voices or by hands, or such other way wherein it is easy to tell who has the majority, and yet very difficult to know the certain number of them. And in such manner there are divers elections in London. And I myself was elected in London by holding up of hands." He also referred to a case in the time of Henry VII. in which the legality of that method of election was virtually admitted. Staunford J. said[46], referring to an objection that there had not been a poll: - "As to the second point, it seems to me that he" (the Sheriff) "shall not be compelled to show the certain number of the electors. For since he cannot be intended to have certain knowledge thereof, he shall not therefore be compelled to show the certainty. And perhaps he was elected by voices, or holding up of hands, and not by the number of persons in certain." This case was decided in 1554. The report shows that up to the time of Phillip and Mary elections were taken by the view or the voices, and that in the opinion of the Judges a poll was not then essential in the case of a contest. It is true that in later days a poll was held necessary in such a case. But is it possible to suppose that originally an election was held good, no matter how the voices or votes of true electors were nullified by the free and wholesale intervention of intruders? In those times the elections were by freeholders. Is it possible that the voting by voice or show of hands was not confined to freeholders, but left open to all comers? Is it not beyond credence that elections to be decided only by the votes of freeholders were allowed to be invaded by as many intruders as chose to come in and swamp the majority, and that, if they did so to such an extent as to render the question, who was elected, an insoluble puzzle, the law, whether administered by committee or Court, was powerless to order a real election in place of the false one?

[61]

The Sydney Corporation Act 1902, by sec. 51 (1), applies the provisions of secs. 109 to 114 inclusive and of sec. 116 of the Parliamentary Electorates and Elections Act 1902 to all elections held under the Corporation Act, mutatis mutandis, and, by sub-sec. 2, any of the acts mentioned in the said sections is to render void the election of the person responsible for such act, i.e., the candidate declared elected, whether the act is committed by himself or by his agent. These acts are bribery, treating, intimidation and the like. These sections have nothing to do with general corruption or intimidation not implicating the candidate. They have nothing to do with those acts of other persons which are among the common law reasons for upsetting an election. The argument of the respondent is that these other reasons stand, seeing that they are not excluded by the Statute. The appellant contends that the Sydney Corporation Act has the effect of sweeping them away. Is it a code in the sense that it does away, so far as the City of Sydney is concerned, with every common law principle that applies to elections? I think that cannot be, though it may be a code which nevertheless sanctions those principles. The words "unduly elected" are wide in their ordinary significance. If the appellant's argument were correct, they would be restricted to cases of misconduct of candidates and agents under the cited sections transcribed from the Parliamentary Electorates and Elections Act of 1902 as adopted by sec. 51, and numerous miscarriages and abuses at the elections, fatal in reason as destroying their certainty and rendering the question "who was really chosen?" impossible to answer, would, as against the citizens, be held to be protected and sanctioned by the will of the Legislature. On this question my brother Isaacs has been so kind as to refer me to a case of Sharpness New Docks &c. Co. v. Attorney-General[47]. In that case the question was whether the common law liability to repair certain bridges, the construction of which had been authorized by an old Statute, which provided nothing to take the place of the common law obligation to keep in repair, continued notwithstanding the passage of a later Statute making express provision on that very subject. The House of Lords, having regard to the language of the later Statute, held it to be a code covering the whole ground, and not merely superimposing a clear obligation upon an old one. The House considered that the appellant's obligation was limited to that expressly imposed by the Act. But this was because the Act covered the same subject as had previously been covered by the common law principle; and although the obligations were not co-extensive it was considered that they were not cumulative. Dealing with the contention that the common law obligation still survived, Lord Parker[48] said: - "It is one thing to rely on a common law principle where a Statute is silent. It is quite another thing to invoke a common law principle in order to impose an obligation different from or in addition to the obligations which are defined by the Statute." So here, I rely on the common law principle because the Statute is silent upon the subject matter to which that principle applies. I do not invoke a common law principle in order to impose an obligation different from or in addition to obligations as to the same subject matter defined by the Statute. I invoke it in order to sustain an obligation which the Statute leaves untouched.

[66]

The crucial words are found in sec. 56, and are these: - "Upon the return of such rule or order, if it appears to the Court that such person so elected ... was unduly elected ... the Court may make such rule or order absolute." Therefore, it must "appear" to the Court that the person whose election is challenged "was" - not "may have been" - unduly elected. How on the facts before us does it appear that Bridge was unduly elected? The one circumstance that I regard as dominant in this case is this, that the election was entirely a statutory proceeding, with statutory directions and statutory consequences (Sharpness New Docks &c. Co. v. Attorney-General[51]); and there is nothing which shows the returning officer or any of his subordinates to have acted contrary to law in the whole conduct of the election. The election was officially conducted, so far as appears, in strict conformity with the law ordaining and regulating it. True, the Legislature has limited the right of voting to citizens, but, knowing there is always a danger of personation, it took certain precautions to prevent it, and having insisted on those precautions it deliberately by sec. 40 (6) made it incumbent on the returning officer to accept the votes now complained of, and by sec. 38 directed him to count them with the rest, and declared also that "the result of the election shall be thereby ascertained." If the election were to be repeated to-morrow and the same events took place, the returning officer would be bound by law to act as he did (Pryce v. Belcher[52]). As the Court said in that case under a very similar Statute in this respect[53], the Legislature has "put it in the power of parties who were not entitled to vote, to have their names put upon the poll, and thereby to influence the election." The Legislature has evidently balanced the convenience and the inconvenience of possible personation, and has chosen to take that course and insist upon an election being conducted and a candidate returned in that manner; and, if so, why is the person so returned for that reason only to be considered "unduly elected"? In my opinion, if Parliament, though specifying the true electors, also specifies its own method of ascertaining their identity for the purpose of the election, and prescribes that a person so ascertained shall not be excluded from voting, and that his vote shall be counted and the result ascertained with reference to that vote, then, even if it is in reality a personated vote, there is an end of the matter, unless further provision is made by Parliament or someone authorized by Parliament for eliminating the vote or for declaring the election void by reason of that violation of the Act. Baron Martin's answer to the Parliamentary Committee in 1869, conveying the views of Willes J., is clear and authoritative, and was endorsed in 1901 by Kennedy J. in the Islington Case[54]. It is this: "To whatever extent the provisions of an Act of Parliament were wilfully violated, which did not enact that the consequences of those Acts avoided the seat, a person sitting judicially could not avoid the seat." That, of course, assumes the correct official conduct of the election, and refers to individual breaches of the law. Parliament in this instance has not made any provision for avoiding the seat merely because some persons unconnected with the candidate have deceived the returning officer. The course dictated by Parliament to meet possible deception has been strictly pursued, and in my judgment that alone should at once determine this matter in favour of the appellant.

[92]

Some Legislatures have therefore made provision for voting in such a way that until the necessity arises for eliminating invaders' votes, absolute secrecy shall be preserved; but, when such necessity does arise, means are afforded by which those votes can be ejected. So in England and Queensland. Other Legislatures appear to consider on the whole that no such means are absolutely necessary, or that their adoption may be left to the local bodies concerned. Secrecy is then inviolable whatever personation takes place. In the case of the Sydney Corporation Act that is the case up to the present, the Legislature having thought that so far as its own express action was concerned, it was sufficient to take the precaution of penalizing personation, if it should be detected. We have not now to determine whether sec. 200 enables a provision to be made as in rule 41 of the Schedule to the English Ballot Act. But I am far from being prepared to say that such a course is denied to the Council. In the meantime, what is the consequence of not affording the means of obtaining evidence as to the way the vote is cast? It is contended that that fact throws the onus upon the other side. What onus? An admittedly impossible onus. So that the argument is open to two serious objections to begin with. The first is that it assumes the Legislature preferred the upsetting an election, however honest the successful candidate, however honest his majority, if only it could be proved that enough personators or corrupt voters (for corrupt voters are also disqualified by the Act) or treated voters (equally disqualified) or a combination of them voted in fact, and this although it might be it was the unsuccessful party himself who had instigated these delinquencies. That never was the common law; and I am unable to accept it as common sense, if that were enough. The contention goes as far as this. If in an Australian Senate election, for instance, the majority of one of the successful candidates were 10, yet if only it were proved that 3 personators voted, and 7 other persons were corrupted, by persons having influence over them, to vote, and did vote, against the successful candidates, the whole election would be bad because the onus - an impossible onus it is assumed - would be cast on the Senators returned, to show the result could not be affected. If, on the other hand, the onus is not impossible, then the person alleging the defect must on all accepted notions of law and fair play be expected to prove it. The second objection to the argument of onus resting on the party attacked is this. If the law places the onus on him now, it always did. But when the cases on personation are referred to, it is seen that the reverse is the case. And that is the constant rule of law which does not alter merely because evidence is lacking. Speaking of a case of bribery or undue influence, Martin B. said, in the Bradford Case[83], of the voter: - "He becomes a man incompetent to give a vote, because he has not that freedom of will and of mind which the law contemplates he ought to have for the purpose of voting. But that affects the man alone, it does not affect the candidate; it has merely the effect of extinguishing the vote, and if there was a scrutiny for the purpose of ascertaining who had the majority of lawful votes, that man's vote ought to be struck off the poll, but that is all."

[104]

Apart from the burden of proof, what is the meaning of "unduly elected" in this Act - the Sydney Corporation Act 1902? The mere fact that a single personating vote was cast does not make a candidate "unduly elected." If he has 50 majority, and one personating vote has been cast for some candidate, unascertained, there has been undue or improper conduct of some unknown person; but the undue conduct of this person does not establish that the candidate with the majority was "unduly elected." If in the case put - of a candidate with 50 majority - it be proved that 60 of the names on the roll ought not to have been on the roll, ought not to have been allowed by the Revision Court, still the candidate has not, in my opinion, been unduly elected; for the roll as revised is conclusive as to the persons who may vote. Sec. 21 says: - "There shall be two aldermen for each ward, who shall be elected by the persons on the roll for such ward." This section was first inserted in the Sydney Corporation Acts, before consolidation, in 1900 (Act No. 30, sec. 19). I think it clear also - on a direct, unsophisticated interpretation of the Act, and still assuming that we are not coerced by authority - that in the same case, if it be proved after the election that there were 60 personated votes, the candidate has not been "unduly elected." For by sec. 40 (6) it is provided that no person is to be excluded from voting "unless it appears to the presiding officer that the person claiming to vote is not the person whose name appears on the roll, or that he has previously voted at the same election within the same ward, or otherwise contrary to this Act." That is to say, unless the presiding officer detect the personation at the time of the election, the vote is to be allowed. The ballot boxes are locked before the election (sec. 32), the ballot papers are put in (sec. 34); at the close of the poll the boxes are sealed up so as to prevent any ballot papers from being taken therefrom, and are taken to the returning officer (sec. 37). Then "the whole of the ballot papers shall be examined and the votes counted by the returning officer &c., and the result of the election shall be thereby ascertained"; and the mayor, on receiving the report of the returning officer, declares the names of the aldermen elected (sec. 38). As Lord Denman said, in R. v. Jefferson[90]: "The bad votes may be sifted off as the voters come into the room; but when they have been admitted to ballot, how can any scrutiny take place?" The candidate who has the actual majority of votes on the count has not been "unduly elected"; the fact that there are some votes of personators whom the presiding officer did not detect, votes which cannot be traced, does not make him "unduly elected." The Legislature seems to have come to the conclusion that both as to persons entitled to vote, and as to the persons entitled to be aldermen, it is useless to hope for an ideal ascertainment of the wishes of the electors who vote, and that finality as to the result is, on the whole, better for the city. As checks to personation, the Legislature seems to have relied on the provisions of secs. 40 and 48. Secs. 40 requires each voter to sign a declaration that he is the person named in the roll, and a false statement is a misdemeanour; and it enables the presiding officer to ask the question "Are you the person named, &c." in the roll? and a false answer is also a misdemeanour. The penalties of the crime are strong enough, if the guilty person be detected; but whether the penalties are, in the circumstances, effective as against personators when the ballot papers cannot be identified with the voters, it is for the Legislature, not for us, to determine.

[105]

But it is urged that there has been a long series of cases decided in the Supreme Court of New South Wales, before the consolidating Act of 1902, which established the principle that if there be shown to be wrong votes sufficient in number to affect the result of the election, the candidate who has the majority of votes on the actual count is primâ facie "unduly elected," and that the burden of proof then lies on that candidate to show that the wrong votes (or a sufficient number to convert his majority into a minority) were not cast for him. Where are the cases which establish this principle? I cannot find any such cases, decided under the Sydney Corporation Acts. The doctrine is clear, as laid down in Ex parte Campbell[91] and many other cases, that if certain words have been solemnly and definitely held by Courts, in a case which turned on the meaning, to have a certain meaning, and if the Legislature afterwards uses the same words without change in an amending Act, or even in a consolidating and amending Act, it is to be presumed that they were re-enacted with the meaning which the Courts had placed upon them (Mackay v. Davies[92]). The presumption is not so strong - if it applies at all - in the case of a mere consolidating Act, such as the Sydney Corporation Act 1902, with which we have to deal (Saunders v. Borthistle[93]). But where are the cases? The case of Ex parte Moore[94] was decided under the Sydney Corporation Act of 1879, which, with amendments, was consolidated in the present Act of 1902. In that case the presiding officer wrongly allowed votes for 15 firms which were wrongly on the roll - wrongly, because they were not "persons" having a Christian and surname; and to justify the presiding officer in allowing a vote, it had to be tendered by a citizen, a person whose name was on the roll (sec. 12), and it was the duty of the officer to ignore the names of firms that appeared on the roll. The presiding officer, therefore, did not carry out duly the machinery prescribed by the Act for election, the election was not duly held, there was a "defect in the election" (sec. 57 of the Act of 1902). As Darley C.J. said[95], it was quite possible that the majority of the electors "by means of the irregularities in the mode of conducting the election have been prevented from electing the candidate of their choice." The case turned on the fact, not that there was personation or other misconduct by individuals, but that there was no proper election, the proper machinery was not applied; and, on the evidence, it could not be established that the mishap did not affect the result. It will be observed that the consideration whether the mishap affects the result or not is applied, not to relieve the applicant of his burden of proof under sec. 56 (sec. 50 of the Act of 1879), but to relieve the respondent in possession of the seat of the consequences of an admitted official irregularity in the conduct of the election. In the present case there was no official irregularity whatever. The election and the count and the return were in accordance with the Act; there was a due election, and Bridge was not "unduly elected."

At a glance

Court

Decision date

Before

Source

Judgment (158 paragraphs)

Bridge v Bowen [1916] HCA 38; (1916) 21 CLR 582 (13 June 1916)

Parties

Legislation Cited (3)

Cases Cited (1)