CONSTITUTIONAL LAW – THE NON-JUDICIAL ORGANS OF GOVERNMENT –
THE LEGISLATURE – ELECTIONS AND RELATED MATTERS –
DISPUTED ELECTIONS
– DISPUTED ELECTION COURTS OR TRIBUNALS – PRINCIPLES UPON WHICH
Source
Original judgment source is linked above.
Catchwords
CONSTITUTIONAL LAW – THE NON-JUDICIAL ORGANS OF GOVERNMENT –THE LEGISLATURE – ELECTIONS AND RELATED MATTERS –DISPUTED ELECTIONS– DISPUTED ELECTION COURTS OR TRIBUNALS – PRINCIPLES UPON WHICHCOURT OR TRIBUNAL ACTS – wheres 92 of the Electoral Act 1992(Qld) (“the Act”) provides that the ECQ has “the continuingfunction of making appropriate administrative arrangementsfor the conduct ofelections” which “includes doing the things required by theremainder of this division” –whether the ECQ has a statutoryobligation under s 92 to inform electors who fail to correctly fill inapplications for postal votes of their errors and give them an opportunity tocorrectthemCONSTITUTIONAL LAW – THE NON-JUDICIAL ORGANS OF GOVERNMENT –THE LEGISLATURE – ELECTIONS AND RELATED MATTERS –DISPUTED ELECTIONS– DISPUTED ELECTION COURTS OR TRIBUNALS – PRINCIPLES UPON WHICH
COURT OR TRIBUNAL ACTS – where
the Act allows for an elector to request a
postal vote upon satisfying certain criteria – where, if the request is
received
by 6 pm on the Thursday before polling day the ECQ or the returning
officer must “post, deliver or send” voting material
to the postal
voter – whether the ECQ is under an obligation to take greater lengths to
post, deliver or send voting material
in proportion to the proximity of the 6 pm
deadline or whether it suffices to post, even where the voting material will not
reach
the elector in time
CONSTITUTIONAL LAW – THE NON-JUDICIAL ORGANS OF GOVERNMENT –
THE LEGISLATURE – ELECTIONS AND RELATED MATTERS –
DISPUTED ELECTIONS
– DISPUTED ELECTION COURTS OR TRIBUNALS – PRINCIPLES UPON WHICH
COURT OR TRIBUNAL ACTS – where
s 136 of the Act confers power on the
Court of Disputed Returns to “make any order or exercise any power in
relation to the application
that the court considers just and equitable”
– whether the power is unlimited or constrained by a requirement that
facts
demonstrate that the election was rendered invalid by virtue of a
contravention of a statutory requirement of the Act
CONSTITUTIONAL LAW – THE NON-JUDICIAL ORGANS OF GOVERNMENT –
THE LEGISLATURE – ELECTIONS AND RELATED MATTERS –
DISPUTED ELECTIONS
– DISPUTED ELECTION COURTS OR TRIBUNALS – PRINCIPLES UPON WHICH
COURT OR TRIBUNAL ACTS – where
the Act is silent on the question of onus
of proof – whether, and if so on which party, the onus of proof lies
CONSTITUTIONAL LAW – THE NON-JUDICIAL ORGANS OF GOVERNMENT –
THE LEGISLATURE – ELECTIONS AND RELATED MATTERS –
DISPUTED ELECTIONS
– DISPUTED ELECTION COURTS OR TRIBUNALS – PRINCIPLES UPON WHICH
COURT OR TRIBUNAL ACTS – where
the Powers of Attorney Act 1998
(Qld) provides that an attorney may “execute an instrument with the
attorney’s own signature” and “do any
other thing in the
attorney’s own name” but “in a way showing that the attorney
executes it as attorney for the
principal” – where s 179 of the
Act provides for how things are to be signed under the Act – whether an
attorney
may sign the declaration envelope for a person voting other than by
ordinary vote – whether an attorney may sign a request
for a postal vote
under the Powers of Attorney Act 1998 (Qld)
CONSTITUTIONAL LAW – THE NON-JUDICIAL ORGANS OF GOVERNMENT –
THE LEGISLATURE – ELECTIONS AND RELATED MATTERS –
DISPUTED ELECTIONS
– DISPUTED ELECTION COURTS OR TRIBUNALS – PRINCIPLES UPON WHICH
COURT OR TRIBUNAL ACTS – where
s 138(2)(b) of the Act states that the
Court of Disputed Returns “must not inquire whether the electoral roll, or
any copy
used at the election, was in accordance with this Act” –
where s 101(1)(c) of the Act states that “persons whose names are not
on the electoral roll ... because of official error” are entitled
to vote
– whether, and if so to what extent, the Court of Disputed Returns may
inquire into whether an official error has been
made that resulted in a person
not being on the electoral roll
CONSTITUTIONAL LAW – THE NON-JUDICIAL ORGANS OF GOVERNMENT –
THE LEGISLATURE – ELECTIONS AND RELATED MATTERS –
BALLOT PAPERS
– MARKING OF BALLOT PAPERS – where s 114(4) of the Act provides
that a ballot paper is a formal ballot paper if it “has effect to indicate
a vote” – where
the ballot paper is formal where the elector writes
on the ballot paper the number 1, a tick or a cross in the square opposite the
name of the candidate to indicate the elector’s preference for that
candidate or by writing the number 1, a tick or a cross
in the square opposite
the name of the candidate to indicate the elector’s first preference for
that candidate and 2, 3 and
so on in other squares to indicate the
elector’s order of preference – where the ballot paper is formal
where it contains
“other writing or marks that indicate the voter’s
intended preference or intended order of preferences” –
where the
ballot paper “must not contain any writing or mark (other than as
authorised by th[e] Act) by which the elector can
be identified” –
whether a particular ballot paper is formal or informal under the Act
CONSTITUTIONAL LAW – THE NON-JUDICIAL ORGANS OF GOVERNMENT –
THE LEGISLATURE – ELECTIONS AND RELATED MATTERS –
PERSONATION
– where an issuing officer has marked off an elector’s name twice on
the electoral roll by mistake –
where ECQ staff have inadvertently allowed
an elector to vote once by electoral visitor vote and once by postal vote
– whether
either of these cases constitutes double voting or personation
in contravention of s 101(2)(a) of the Act
Electoral Act 1992 (Qld), s 3, s 21, s 23, s 30, s 32, s
34, s 58, s 59, s 61, s 62, s 64, s 65, s 67, s 78, s 80, s 84, s 88, s 91,
s 92, s 93, s 94, s 97, s 98, s 99, s 101, s 102, s 103, s 104,
s 105, s
106, s 107, s 108, s 109, s 110, s 111, s 112, s 113,
s 114, s 115, s 116, s
119, s 120, s 121, s 125, s 127, s 128,
s 130, s 134, s 136, s 137, s 138, s
139, s 164, s 178, s 179
Elections Acts 1915-1948 (Qld), s 4, s 35, s 35A, s 101
Powers of Attorney Act 1998 (Qld), s 69, sch 3
Commonwealth Electoral Act 1918 (Cth), s 98, s 101, s 116,
s
118, s 184, s 184A, s 268, s 361
Parliamentary Electorates and Elections Act 1912-1949 (NSW), s 20, s
163
Blundell v Vardon [1907] HCA 75
(1907) 4 CLR 1463, followed
Bridge v Bowen [1916] HCA 38
(1916) 21 CLR 582, cited
Buck v Bavone [1976] HCA 24
(1976) 135 CLR 110, cited
Carroll v Electoral Commission of Queensland (No 1) [2001] 1 Qd R
117, followed
Cirencester Case (1893) 4 O’M & H 194
Featherston v Tully [2002] SASC 243
(2002) 83 SASR 302, cited
In re Nash Election Petition [1952] St R Qd 53
Kane v McClelland [1962] HCA 26
(1962) 111 CLR 518, followed
Kean v Kerby [1920] HCA 35
(1920) 27 CLR 449, followed
Kennedy v Palmer [1907] HCA 21
(1907) 4 CLR 1481, considered
Martin v Osborne [1936] HCA 23
(1936) 55 CLR 367, cited
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996)
185 CLR 259, cited
Muldowney v Australian Electoral Commission [1993] HCA 32
(1993) 178 CLR 34,
followed
Owen v Dunn [1962] WAR 175, cited
Perkins v Cusack [1930] HCA 3
(1929) 43 CLR 70, cited
Re Berrill’s Petition [1976] HCA 50
(1976) 134 CLR 470, followed
Re Brennan
ex parte Muldowney [1993] HCA 53
(1993) 67 ALJR 837, followed
Re Darlinghurst Petition (1951) SR (NSW) 204
Re Maryborough Election Petition
Nightingale v Alison (1984)
2 Qd R 214, considered
Shaw v Wolf [1998] FCA 389
(1998) 83 FCR 113, followed
Snowdon v Dondas [1996] HCA 27
(1996) 188 CLR 48, considered
Tanti v Davies (No 3) [1996] 2 Qd R 602, considered
Langer v The Commonwealth [1996] HCA 43
(1996) 186 CLR 302, followed
Mitchell v Bailey (No 2) [2008] FCA 692
(2008) 169 FCR 529, followed
Blundell v Vardon [1907] HCA 75
(1907) 4 CLR 1463, followed
Woodward v Sarsons (1875) LR 10 CP 733, distinguished
Judgment (1283 paragraphs)
[1]
CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - ELECTIONS AND RELATED MATTERS - DISPUTED ELECTIONS - DISPUTED ELECTION COURTS OR TRIBUNALS - PRINCIPLES UPON WHICH COURT OR TRIBUNAL ACTS - where s 92 of the Electoral Act1992 (Qld) ("the Act") provides that the ECQ has "the continuing function of making appropriate administrative arrangements for the conduct of elections" which "includes doing the things required by the remainder of this division" - whether the ECQ has a statutory obligation under s 92 to inform electors who fail to correctly fill in applications for postal votes of their errors and give them an opportunity to correct them
[2]
CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - ELECTIONS AND RELATED MATTERS - DISPUTED ELECTIONS - DISPUTED ELECTION COURTS OR TRIBUNALS - PRINCIPLES UPON WHICH COURT OR TRIBUNAL ACTS - where the Act allows for an elector to request a postal vote upon satisfying certain criteria - where, if the request is received by 6 pm on the Thursday before polling day the ECQ or the returning officer must "post, deliver or send" voting material to the postal voter - whether the ECQ is under an obligation to take greater lengths to post, deliver or send voting material in proportion to the proximity of the 6 pm deadline or whether it suffices to post, even where the voting material will not reach the elector in time
[3]
CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - ELECTIONS AND RELATED MATTERS - DISPUTED ELECTIONS - DISPUTED ELECTION COURTS OR TRIBUNALS - PRINCIPLES UPON WHICH COURT OR TRIBUNAL ACTS - where s 136 of the Act confers power on the Court of Disputed Returns to "make any order or exercise any power in relation to the application that the court considers just and equitable" - whether the power is unlimited or constrained by a requirement that facts demonstrate that the election was rendered invalid by virtue of a contravention of a statutory requirement of the Act
[4]
CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - ELECTIONS AND RELATED MATTERS - DISPUTED ELECTIONS - DISPUTED ELECTION COURTS OR TRIBUNALS - PRINCIPLES UPON WHICH COURT OR TRIBUNAL ACTS - where the Act is silent on the question of onus of proof - whether, and if so on which party, the onus of proof lies
[5]
CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - ELECTIONS AND RELATED MATTERS - DISPUTED ELECTIONS - DISPUTED ELECTION COURTS OR TRIBUNALS - PRINCIPLES UPON WHICH COURT OR TRIBUNAL ACTS - where the Powers of Attorney Act1998 (Qld) provides that an attorney may "execute an instrument with the attorney's own signature" and "do any other thing in the attorney's own name" but "in a way showing that the attorney executes it as attorney for the principal" - where s 179 of the Act provides for how things are to be signed under the Act - whether an attorney may sign the declaration envelope for a person voting other than by ordinary vote - whether an attorney may sign a request for a postal vote under the Powers of Attorney Act1998 (Qld)
[6]
CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - ELECTIONS AND RELATED MATTERS - DISPUTED ELECTIONS - DISPUTED ELECTION COURTS OR TRIBUNALS - PRINCIPLES UPON WHICH COURT OR TRIBUNAL ACTS - where s 138(2)(b) of the Act states that the Court of Disputed Returns "must not inquire whether the electoral roll, or any copy used at the election, was in accordance with this Act" - where s 101(1)(c) of the Act states that "persons whose names are not on the electoral roll ... because of official error" are entitled to vote - whether, and if so to what extent, the Court of Disputed Returns may inquire into whether an official error has been made that resulted in a person not being on the electoral roll
[7]
CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - ELECTIONS AND RELATED MATTERS - BALLOT PAPERS - MARKING OF BALLOT PAPERS - where s 114(4) of the Act provides that a ballot paper is a formal ballot paper if it "has effect to indicate a vote" - where the ballot paper is formal where the elector writes on the ballot paper the number 1, a tick or a cross in the square opposite the name of the candidate to indicate the elector's preference for that candidate or by writing the number 1, a tick or a cross in the square opposite the name of the candidate to indicate the elector's first preference for that candidate and 2, 3 and so on in other squares to indicate the elector's order of preference - where the ballot paper is formal where it contains "other writing or marks that indicate the voter's intended preference or intended order of preferences" - where the ballot paper "must not contain any writing or mark (other than as authorised by th[e] Act) by which the elector can be identified" - whether a particular ballot paper is formal or informal under the Act
[8]
CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - ELECTIONS AND RELATED MATTERS - PERSONATION - where an issuing officer has marked off an elector's name twice on the electoral roll by mistake - where ECQ staff have inadvertently allowed an elector to vote once by electoral visitor vote and once by postal vote - whether either of these cases constitutes double voting or personation in contravention of s 101(2)(a) of the Act
Ground 4(a): non-receipt of declaration envelopes and ballot
[55]
Ground 4(b): persons not on the roll [469]-[496]
[56]
Ground 4(c): special postal voter [497]-[512]
[57]
Ground 4(d): postal votes not counted [513]-[610]
[58]
Ground 4(e): applications not in accordance with the Act [611]-[632]
[59]
Ground 4(f): electors not offered a declaration vote because
[60]
Ground 4(g): rejected postal votes [641]-[670]
[61]
Ground 4(h): persons who were entitled to vote were prevented
[62]
from voting because of advice given by the ECQ and/or failure
[63]
to advise of the way those persons could vote [671]-[686]
[64]
Whether a ballot paper is formal or informal [688]-[709]
[65]
Category 1: identifying writing or marks [716]-[734]
[66]
Category 3: ballot papers containing marks other than numbers,
[67]
Category 4: ballot papers with marks or numbers repeated [769]-[774]
[68]
Category 5: ballot papers marked outside the squares [775]
[69]
[1] The applicant, Andrea Michele Caltabiano, was an unsuccessful candidate for the electoral district of Chatsworth in the 2009 Queensland State election. She brought an application in the Court of Disputed Returns against the first respondent, the Electoral Commission of Queensland ("ECQ"), which conducted the elections, and the second respondent, Steven Andrew Kilburn, the successful candidate for the electoral district of Chatsworth. After the counting of the ballots, Mr Kilburn was the successful candidate with 13,561 votes. Ms Caltabiano had a total of 13,487 votes, so the winning margin was 74 votes.
[70]
[2] Ms Caltabiano sought orders that Mr Kilburn be taken not to have been elected, that she be taken to have been elected, and, in the alternative, that a new election be held for the electoral district of Chatsworth.
[71]
[3] There were five particularised grounds set out in the amended originating application. Ground 4 was further divided into a number of subgrounds. Each ground and subground will be dealt with in turn in these reasons for decision.
[72]
[4] The first and second grounds alleged that there were instances of double voting or personation.[1]
[73]
That certain electors in the electoral district of Chatsworth voted or may have voted more than once in contravention of s 101(2)(a) of the Electoral Act1992 (Qld) ("the Act").
[74]
That certain persons obtained voting ballot papers for the electoral district of Chatsworth and voted in the name of other persons who were on the roll of the electorate of Chatsworth with the effect that more than one vote was recorded at the election for those electors in contravention of s 101(2)(a) of the Act.
[75]
[7] Ground 3 alleged that certain postal votes were counted which should not have been counted. Ground 3 was:
[76]
That the ballot papers of certain persons who made declaration votes, in the form of ordinary postal votes, and failed to comply with the requirements of s 107(d) and s 110 and in particular s 110(5)(a) of the Act were counted in contravention of s 115 and s 116(1) and (2) of the Act.
[77]
[8] Ground 4 alleged that some electors were denied declaration votes when they should have been able to vote in that way.
[78]
[9] Ground 4(a) alleged that certain electors who requested postal votes did not receive ballot papers at all or in time to vote. Ground 4(a) was:
[79]
Persons who had made a valid application for a declaration vote, in the form of an ordinary postal vote, pursuant to s 105(1) and (2) and 110(1) and (1A) of the Act, and whose applications were received not later than 6 pm on the Thursday before polling day, did not receive, or alternatively did not receive in time to vote before the end of voting hours on polling day, a ballot paper and declaration envelope, because the first respondent failed to post, deliver or send, or alternatively deliver or send, the ballot paper and declaration envelope to those persons, in contravention of s 110(2) of the Act.
[80]
[10] Ground 4(b) alleged that certain declaration votes made by persons who were not on the roll should have been counted but were not. Ground 4(b) was:
[81]
Certain persons who were entitled to make a declaration vote pursuant to s 106(c) and 107(b) and s 108 of the Act cast such a vote but it was not counted in contravention of s 119(1), (3)(c), (4)(c) and (d) of the Act.
[82]
[11] Ground 4(c) alleged that a special postal voter was denied a vote. Ground 4(c) was:
[83]
Certain persons who were entitled to make a declaration vote, as a special postal voter, pursuant to s 105(1)(b) and (3)(a)(iii) of the Act, cast such a vote but it was not counted in contravention of s 119(1), (3)(c) and (4)(c) and (d) of the Act.
[84]
[12] Ground 4(d) alleged that certain postal votes which should have been counted but were not. Ground 4(d) was:
[85]
In respect of certain persons who had made a valid application for a declaration vote, in the form of an ordinary postal vote, pursuant to s 105(1) and (2) and 110(1) and (1A) of the Act, and did receive a ballot paper and declaration envelope, and upon receiving them complied with the requirements of s 110(5) of the Act, the first respondent failed to ensure that members of the first respondent's staff examined the declaration envelopes to determine whether the ballot papers in them were to be accepted for counting, in contravention of s 115 and s 116(1) of the Act, and identify the declaration envelopes and keep them separate in relation to the electoral district of Chatsworth, in contravention of s 119(1) and (2) of the Act, with effect that such ballot papers were not counted in contravention of s 119(1), (3)(c), (4)(c) and (d) of the Act.
[86]
[13] Ground 4(e) alleged that the ECQ should have informed electors who submitted invalid requests for postal votes of the errors so that they could submit valid requests. Ground 4(e) was:
[87]
The first respondent failed to inform certain persons who made application for a declaration vote which contained an error in the completion of the application that his or her application contained such error, so as to give that person an opportunity to cast a vote for the electoral district of Chatsworth, in contravention of s 92 of the Act.
[88]
[14] Ground 4(f) alleged that certain electors who were not on the roll or were told they were not on the roll were not offered declaration votes. Ground 4(f) was:
[89]
Certain persons who were entitled to make a declaration vote pursuant to s 106(c) and 107(b) and s 108 of the Act were refused or not offered such a declaration vote, in contravention of s 108(2) and s 92 of the Act.
[90]
[15] Ground 4(g) alleged that certain postal ballots that should have been counted were rejected on the ground that the signature on the declaration envelope did not match the signature on the request for a postal vote. Ground 4(g) was:
[91]
Certain persons who had made application for a declaration vote, in the form of an ordinary postal vote, pursuant to s 105(1) and (2) and 110(1) and (1A) of the Act, who did receive a ballot paper and declaration envelope, and upon receiving it complied with the requirements of s 110(5) of the Act, returned the declaration envelope and ballot paper, the ballot papers were not accepted for counting, in contravention of s 116(2) of the Act, and the ballot papers were not counted in contravention of s 119(1), (3)(c), (4)(c) and (d) of the Act.
[92]
[16] Ground 4(h) alleged that persons who were entitled to vote were prevented from voting because of advice given by the ECQ and/or failure to advise the way those persons could vote. Ground 4(h) was:
[93]
Certain persons who were entitled to vote in the electoral district of Chatsworth were prevented from voting because of advice given by staff of the first respondent and/or the failure of those staff to advise of the ways in which those persons could vote as the election, in contravention of s 92 of the Act.
[94]
[17] Ground 5 alleged that certain ballot papers were declared informal that should have been counted as formal votes for Ms Caltabiano and that certain ballot papers counted as formal votes for Mr Kilburn should have been declared informal. Ground 5 was:
[95]
Certain votes which were formal votes for the applicant were not counted in her favour and certain votes which were informal votes were counted in favour of the second respondent Mr Kilburn in contravention of s 115 and s 119(1), (3)(c) and (4)(c) of the Act.
[96]
Statutory and factual context of the 2009 State election
[97]
[18] In order to understand the application as particularised it is necessary to set out the statutory and factual context of the 2009 State election.
[98]
[19] Parliamentary elections in Queensland are governed by the Act. A general election for members of the Legislative Assembly in Queensland was held after the issue of a writ for the election by the Governor on 23 February 2009 under s 78(1)(a) of the Act. The election period is the period beginning on the day after the writ for the election is issued and ending at 6 pm on the polling day for the election (s 3). Polling day for the 2009 State election was 21 March 2009. The election period was therefore 24 February to 21 March 2009.
[99]
[20] Once a writ has been issued by the Governor the ECQ must, pursuant to s 77 of the Act, conduct the election of members of the Legislative Assembly in accordance with the writ and the provisions of pt 6 of the Act. The writ issued by the Governor must set out:
[100]
under s 80(1)(b) of the Act, the cut-off day for the electoral roll for the election, which must not be less than five days, or more than seven days, after the issue of the writ.[2] The writ set out that the cut-off day for the electoral roll would be 5 pm on 28 February 2009. Thereafter the ECQ must prepare the electoral roll for the election (s 59(1)(b)) and give a certified copy of the roll as at the cut-off day to each candidate for election for an electoral district who requests a copy (s 61(2)).
under s 80(1)(c) of the Act, the cut-off day for the nomination of candidates for the election, which must be not less than eight days, nor more than 18 days, after the issue of the writ. The date set out in the writ for the close of nominations was 3 March 2009 at 12 pm.
under s 80(1)(d) of the Act, the polling day, which must be a Saturday not less than 26 days, nor more than 56 days, after the issue of the writ. The polling day set out in the writ was Saturday 21 March 2009. The hours for voting on polling day were from 8 am to 6 pm.
under s 80(1)(e) of the Act, the day for the return of the writ. The day on which the writ was returned was 7 April 2009.
[101]
[21] There are 89 electoral districts for Queensland (s 34). Each electoral district has a returning officer appointed by the Governor in Council under s 32 of the Act. The Act provides for an Electoral Commissioner ("the Commissioner") (s 21) who is appointed by the Governor in Council (s 23), permanent staff employed under the Public Service Act 1996 (Qld) (s 30(1) and (2)) and temporary staff to be employed in connection with the conduct of a particular election (s 30(4), s 92(3)).
[102]
[22] This dispute concerns the electoral district of Chatsworth. The returning officer for that electoral district is Norman Ludwig, who gave evidence in these proceedings. The Commissioner is David Kerslake. The Commissioner was assisted in the conduct of the 2009 State election by Gary Wiltshire, the director of election operations with the ECQ; Donald Schultz, the acting director, enrolment and community awareness for the ECQ; other permanent staff; as well as many temporary staff employed for the conduct of the 2009 State election.
[103]
[23] An issuing officer is defined in s 3 of the Act to mean a member of the ECQ's staff who is responsible for issuing ballot papers or declaration envelopes under the Act to electors at an election.
[104]
[24] At each election the ECQ establishes a call centre to handle elector enquiries. For the 2009 State election, the call centre received over 78,000 enquiries. The centre was operated by Smart Services Queensland, with training for call centre staff provided by experienced ECQ officers. Each call centre operator was provided with a menu of questions electors were likely to ask and scripted answers to which they could refer. Call centre staff also had access to the ECQ website which contained the location of pre-poll centres (including overseas locations). ECQ staff were available to deal with any more complex questions which might be referred to them by call centre staff.
[105]
[25] Pursuant to s 58 of the Act, the ECQ is required to keep an electoral roll for each electoral district which sets out, in relation to each person entitled to vote in that district, the person's surname and given names; address; sex, occupation and date of birth; and an identifying number. Section 62 provides for a joint electoral roll for Commonwealth and State elections. The electoral roll for all elections in Queensland (State, Commonwealth and local government) is maintained by the Australian Electoral Commission (AEC) under a joint roll arrangement with the Commonwealth.
[106]
[26] Section 64 of the Act deals with entitlement to enrolment. Essentially, entitlement to enrolment is governed by the Commonwealth Electoral Act 1918 (Cth) ("the Cth Act"). Section 64 provides that a person is entitled to be enrolled if the person is entitled to be enrolled under the Cth Act for the purposes of that Act in its application in relation to an election within the meaning of that Act. The elector must also (subject to certain exceptions not here relevant) live in the electoral district and have lived in it for the last month. Mr Kerslake gave evidence that under s 67(3) of the Act, if an objection is received to the enrolment of a person, every effort is made to contact the elector to give that person a reasonable opportunity to respond, for instance by accessing various national data sources in an effort to ascertain the elector's current address.
[107]
[27] Objections to enrolment are dealt with under pt 9 of the Cth Act. Mr Schultz gave evidence that when the AEC receives information that an elector may no longer reside at the enrolled address, the AEC commences an objection process to remove the elector's name from the roll. He said that the AEC carries out reviews by doorknocking from time to time in certain areas and may also be alerted by "return to sender" mail.
[108]
[28] The objection process involves the AEC's issuing a letter to the elector at the enrolled address, pursuant to s 116(2)(c)(iii) of the Cth Act, seeking information that the elector still resides at the address or is no longer there. A response is required within a certain period of time under s 118(1) of the Cth Act. If there is no response to the first letter, a second letter is sent stating that the elector has been removed from the roll unless the AEC is advised otherwise under s 118(6) and (7) of the Cth Act. It cannot be an official error under s 101(1) of the Act if the AEC removes a person's name from the roll following the procedure set out in the Cth Act unless it has been given notice by the elector of a claim for a transfer of enrolment because of a change of address (s 65(3) of the Act; s 101(2) of the Cth Act).
[109]
[29] Under s 65(5) of the Act, the roll may not be amended between the end of the cut-off day and the end of the polling day except to correct a mistake or the wrongful removal of a person from the electoral roll. In the 2009 State election, the dates during which the roll could not be amended were from 1 March to 21 March 2009 inclusive.
[110]
[30] At the close of the roll for the 2009 State election, there were 2,660,940 electors on the State electoral roll, including 31,053 for the electoral district of Chatsworth.
[111]
[31] Once the electoral roll is closed, certified rolls are allocated to polling booths and for various types of declaration votes. The following table sets out the names of polling booths used in the electoral district of Chatsworth during the 2009 State election, the numbers allocated to the certified rolls used in each polling booth, and the numbers allocated to the certified lists used for each type of declaration voting. The rolls with a number from 150 upwards were kept electronically.
[112]
[32] When an elector votes, the elector's name is marked off on a copy of the certified roll. Each certified roll is amalgamated into the consolidated roll. Each voter's name is annotated on the consolidated roll to show on which copy of the certified roll the voter's name was marked off. It is then possible to tell where, or the means by which, the ballot paper was allocated.
[113]
[33] It is necessary to note that the Court must not inquire whether the electoral roll, or any copy used at the election, was in accordance with the Act (s 138(2)(b)). Inclusion of a person's name on the roll gives that person an entitlement to vote[3] and the Court may not inquire whether the person was not so entitled.
[114]
[34] I shall deal with persons whose names are not on the roll but who may nevertheless be entitled to vote later in these reasons.
[115]
[35] Part 6 div 2 of the Act deals with the nomination of candidates for elections. The ECQ must advise the returning officer for each electoral district of the names of all persons nominated for election for the electoral district (s 88(1)). The returning officer must then arrange for a notice stating the names of those persons to be displayed in a conspicuous place at the returning officer's office and published (s 88(2)). Once the names have been displayed, the persons become candidates for the election for the electoral district (s 3, s 88(3)).
[116]
[36] As soon as practicable after the ECQ advises the returning officer of the names of the candidates for an election for the electoral district, the ECQ must enter in a register of candidates the information required under s 84(3) of the Act, including the candidate's name, address and occupation; a signed statement by the candidate consenting to the nomination; and, if the person has been nominated by the registered officer of a registered political party that has endorsed the candidate for the election, a signed statement by the party's registered officer that the registered political party has endorsed the candidate.
[117]
[37] The order of the candidates' names on the ballot paper is chosen in accordance with s 98 of the Act. The candidates for Chatsworth in the 2009 State election were, in the order in which they appeared on the ballot paper:
[118]
Kilburn, Steven (Australian Labor Party);
Cooney, Jason (The Greens);
Furze, Jason B (DS4SEQ);
Zegenhagen, Tony; and
Caltabiano, Andrea (LNP).
[119]
[38] The words or abbreviation in brackets after the candidate's name denote the political party by which that candidate was endorsed (s 97(2)(g)). If the political party has sought to be described by an abbreviation on the ballot paper, that abbreviation rather than the full name of the political party is used.
[120]
[39] Once the nominations have closed and the order of the candidates on the ballot paper has been chosen, the ballot papers are printed. They were printed by the government printer and arrived in Brisbane on the morning of Thursday 5 March. Returning officers did not therefore have ballot papers to send out before this date unless they printed them themselves.
[121]
[40] Section 91 of the Act then provides that an election must be held in accordance with the writ and the provisions of pt 6.
[122]
[41] Division 3 of pt 6 deals with arrangements for elections. Section 92(1) provides that the ECQ has the continuing function of making appropriate administrative arrangements for the conduct of elections. This function includes the doing of those things required in the remainder of div 3 of pt 6, such as setting up and operating polling booths (s 93) including ordinary polling booths (s 94(2)) and mobile polling booths (s 94(3)). The ECQ set up 11 polling booths within the electorate of Chatsworth as well as the Brisbane polling booth in the Primary Industries Building at 80 Ann Street.
[123]
[42] The ECQ may declare an institution which contains patients, residents or inmates a mobile polling booth to enable those patients, residents or inmates to vote at the institution at times (determined by the ECQ) during the period beginning 11 days before polling day and ending at 6 pm on polling day. In this case, that was from 10 March 2009 to 6 pm on 21 March 2009. However, s 94(9) of the Act provides that the result of an election is not invalidated only because an issuing officer failed to visit a mobile polling booth as arranged.
[124]
[43] The ECQ must ensure that there are a sufficient number of ballot papers and certified copies of the electoral roll for each electoral district as at the cut-off day for electoral rolls (s 97(1)). Section 97 of the Act also sets out the form of the ballot paper. Section 97(3) provides that the ballot papers must contain the following sentences -
[125]
"• Place the number one ('1') in the square opposite the candidate of your choice.
[126]
You may if you wish indicate your preference for additional candidates by numbering the other squares in your preferred order."
[127]
[44] During the 2009 election period, the ECQ sent all electors a letter telling them the polling day and hours, their roll number and enrolled address, the electoral district in which they were enrolled, the location of polling booths in that district and the options available if they were unable to attend a polling booth on polling day. The ECQ's website also assisted electors by outlining the voting options available to them.
[128]
[45] The applicant submitted that s 92 of the Act imposes an obligation on the ECQ to inform electors who fail to fill in applications for postal votes correctly of their errors and give them an opportunity to correct them. The ECQ submitted that it does not have an obligation of that kind. That submission must be accepted. The function of making appropriate administrative arrangements for the conduct of elections does not necessarily extend to informing persons that they have not correctly completed applications for a declaration vote. The ECQ may do this but there is no obligation upon it to do it. The fact that s 5.8.2 of the Returning Officers' Procedures Manual published by the ECQ says that the returning officer (or the ECQ) should return to the elector for correction any applications not completed correctly or not signed does not impose any statutory duty on the ECQ which would have the effect that s 92 of the Act is contravened if electors were not so informed.
[129]
[46] Section 3 defines an elector as "a person entitled to vote under this Act". Section 101 in div 4 of pt 6 of the Act sets out who is entitled to vote in an election. Relevantly, sub-ss 101(1) and (2) provide:
[130]
(1) The following persons are the only persons who are entitled to vote at an election for an electoral district -
[131]
(a) persons enrolled on the electoral roll for the district;
[132]
(b) persons who are not enrolled, but are entitled to be enrolled on the electoral roll for the district because of section 64(1)(a)(ii);
[133]
(c) persons whose names are not on the electoral roll for the district because of official error.
[134]
(a) more than once at the same election for an electoral district; or
[135]
(b) at 2 or more elections for electoral districts held on the same day."
[136]
[47] An elector whose name is not on the electoral roll for an electoral district because of an official error must make a declaration vote. A ballot paper must be accepted for counting under s 116(2)(a) only if the person examining the declaration envelope is satisfied that the elector concerned was entitled to vote at the election. That person can only be satisfied if the person's name is on the roll, or if the person's name is not on the roll, that is because of official error, which I take to mean error by the ECQ or the AEC.
[137]
[48] The first two subdivisions of div 5 refer to the two different ways in which voting may take place: ordinary voting and declaration voting. The Commissioner, Mr Kerslake, gave evidence as to how electors' names are marked off the roll. He said that electors attending a polling booth or a declared institution, and electors receiving an elector visitor vote, have their names marked off a certified list before being given their ballot paper.
[138]
[49] Mr Kerslake referred to a previous inquiry into electoral matters conducted by the Legal, Constitutional and Administrative Review Committee (LCARC) of the Queensland Parliament, when the then Electoral Commissioner said in relation to apparent cases of dual voting:
[139]
"... between 7 and 60 double markings occurred on the roll per electoral district, with an average of 22 per district, and most of these were satisfactorily resolved through the process of sending out notices requiring explanation."[4]
[140]
[50] Mr Kerslake said that further investigation most often reveals that some electors have been marked off the roll twice, in error. This can occur, for example, where two electors in the same district have similar names, such as a father and son with the same first name and surname. In a busy polling environment, one name could easily be marked off on different rolls twice and the other not be marked off at all. Polling booths are busy and noisy environments on polling day especially in places such as school halls with poor acoustics. Some electors are difficult to understand in such an environment because they speak quietly, have a speech impediment or a foreign accent, or the issuing officer may not have sharp hearing.[5] There may just be a mistake made in which name is marked off because the issuing officer puts a line next to the wrong name. As a result, a voter may be marked off in error. As Mr Kerslake said in evidence, no election conducted by an electoral commission has ever been free of this kind of human error.
[141]
[51] As to the incidence of double voting, Mr Kerslake said:
[142]
"Even where it can be established that an elector did vote twice, this is not necessarily evidence of deliberate fraud. Examples have been cited where electors have become confused about voting processes, such as filling out postal ballot material but, believing it has been misplaced, voting later at a polling booth, only to find out that another family member had already put their postal vote in the mail. With these types of examples in mind, the (Commonwealth) Joint Standing Committee on Electoral Matters recently concluded, in relation to the 2007 federal election:
[143]
Alleged cases of multiple voting raised following the 2007 election are illustrative of an unfounded fear of the effects of multiple voting that are inevitably raised following an election but, when subject to close examination, do not stand up to scrutiny. (Op. cit. p.22 For a list of common examples, see the JSCEM Report on the conduct of the 2007 federal election and matters related thereto, Canberra June 2009 p.36.)
[144]
An AEC 'Electoral Backgrounder' points out that it has been concluded by every parliamentary and judicial enquiry into the conduct of federal elections, since the AEC was established as an independent statutory authority in 1984, that there has been no widespread and organised attempt to defraud the federal electoral system; that instances of multiple voting that do occur show no pattern of concentration in any district; and that the level of fraudulent enrolment and voting has not been sufficient to have overturned the result in any federal election in Australia."
[145]
[52] Mr Wiltshire's evidence was that following the 2009 State election, all certified lists used at polling booths, declared institutions and for electoral visits for all of the electoral districts were optically scanned at the ECQ's Scanning Centre situated at the Salmat Business Force premises at Murarrie and Acacia Ridge.
[146]
[53] The marks from the lists are stored in the ECQ's scanning system. Postal, pre-poll, absent votes, and also votes cast at the Brisbane (all districts) booth are stored as electronic marks in the ECQ's election management system. The marks from both systems were then combined into the ECQ's scanning system to produce a consolidated roll of electors who voted in all electoral districts.
[147]
[54] The scanning process is undertaken for a number of reasons, but in particular to identify possible non-voters and possible multiple voters.
[148]
[55] The scanning of certified lists is usually completed within the first two weeks after the election, while the electronic data from the election management system is usually loaded four weeks after the election. The scanning system reveals whether an elector's name has been marked off more than once, either on a certified list or as an electronic mark.
[149]
[56] Mr Wiltshire said that the fact that a person's name has been marked off more than once does not by itself indicate that they had voted twice or had been personated by another. The most likely explanation is issuing officer error such as mistakenly crossing the wrong name off a certified list.
[150]
[57] A consolidated roll was generated for Chatsworth showing all the electors that had been marked off as having voted on the Chatsworth electoral roll, indicating also on which copy of the electoral roll the elector's name had been marked off.
[151]
[58] Subdivision 1 deals with ordinary voting. That method covers electors who, during ordinary voting hours on polling day, enter a polling booth for the electoral district for which the elector is enrolled. Subsection 102(8) provides that the issuing officer must keep a record of all persons to whom the officer issues ballot papers under that section. Under s 102(10), upon being given a ballot paper by the issuing officer the elector must, without delay, vote alone in a voting compartment in the polling booth and there in private mark a vote on the ballot paper in accordance with s 113. Section 113 is found in subdivision 3, which deals with the marking of ballot papers and I shall refer to s 113 when dealing with that subdivision.
[152]
[59] An issuing officer may allow another person to assist an elector to vote if the issuing officer is satisfied the elector is unable to vote without help (s 103). Under s 103(2) of the Act, that other person may help the elector by:
[153]
(b) explaining the ballot paper and requirements of section 113 relating to its marking;
[154]
(c) marking, or helping the elector to mark, the ballot paper in the way the elector wishes;
[155]
(d) folding the ballot paper and putting it in the ballot box."
[156]
[60] An issuing officer may also visit patients in hospital on polling day for the purpose of enabling the patients to vote if the hospital or part of the hospital is a polling booth (s 104).
[157]
[61] Section 106 deals with who must make a declaration vote. They include:
[158]
An elector who wishes to vote by going to a polling booth which is an institution declared by the ECQ pursuant to s 94(4) to be a mobile polling booth for the purposes of the election if that institution is outside the electoral district for which the elector is enrolled (s 94(4), s 106(b));
An elector whose name is not on the electoral roll for an electoral district because of an official error (s 106(c));
An elector who appears from a record made in error to have already voted in the election for any electoral district (s 106(e)); and
An elector who is given a ballot paper and a declaration envelope upon the issuing officer suspecting that the person claiming to be a particular elector is not the elector (s 102(7), s 106(f), s 112).
[159]
Of these categories, only s 106(c) is relevant to this application.
[160]
[62] In addition to those who must make a declaration vote, s 105 of the Act sets out those who may make a declaration vote. They are ordinary postal voters (s 105(1)(a), (2)), special postal voters (s 105(1)(b), (3)) and electoral visitor voters (s 105(1)(c), (4)).
[161]
[63] An ordinary postal voter is, pursuant to s 105(2) of the Act:
[162]
"(a) an elector who will not, throughout ordinary voting hours on polling day, be within 8km, by the nearest practicable route, from a polling booth;
[163]
(b) an elector who will, throughout ordinary voting hours on polling day, be working or travelling under conditions that prevent voting at a polling booth;
[164]
(c) an elector who will, because of illness, disability or advanced pregnancy, be prevented from voting at a polling booth;
[165]
(d) an elector who will, because the elector is caring for a person who is ill, has a disability or is pregnant, be prevented from voting at a polling booth;
[166]
(e) an elector who will, because of membership of a religious order or because of religious beliefs, be prevented from voting at a polling booth for all, or the majority, of ordinary voting hours on polling day;
[167]
(f) an elector who a doctor has certified, in writing, is so physically incapacitated as to be incapable of signing the elector's name."
[168]
[64] A special postal voter is, pursuant to s 105(3) of the Act:
[169]
"(a) an elector whose name is included in the register of special postal voters because of a written application that satisfies the commission that -
[170]
(i) the elector's address, as shown on an electoral roll immediately before the commencement of this paragraph, is more than 15km but not more than 20km, by the nearest practicable route, from a polling booth; or
[171]
(ii) the elector's address is more than 20km, by the nearest practicable route, from a polling booth; or
[65] General postal voters under s 184A(2) of the Cth Act are those who have applied for and been granted registration as a general postal voter on any of the following grounds:
[175]
"(a) the applicant's real place of living is not within 20 kilometres, by the shortest practicable route:
[176]
(ii) of any place determined under paragraph 227(4)(a) to be a place that will be visited by mobile polling teams for the purposes of section 227;
[177]
(i) is a patient at a hospital (other than a special hospital or a hospital that is a polling place); and
[178]
(ii) because of serious illness or infirmity, is unable to travel from the hospital to a polling place;
[179]
(c) because of serious illness or infirmity, the applicant is unable to travel from the place where he or she lives to a polling place;
[180]
(ca) because the applicant will be at a place (other than a hospital) caring for a person who is seriously ill or infirm, the applicant is unable to travel from that place to a polling place;
[181]
(e) the enrolment of the applicant was obtained by means of a claim signed under subsection 98(3);
[182]
(f) a registered medical practitioner has certified, in writing, that the applicant is so physically incapacitated as to be incapable of signing his or her name;
[183]
(g) the applicant's address has been excluded from the Roll under section 104;
[184]
(h) because of the applicant's religious beliefs or membership of a religious order, the applicant:
[185]
(i) is precluded from attending a polling booth; or
[186]
(ii) for the greater part of the hours of polling on polling day, is precluded from attending a polling booth;
[187]
(i) the applicant is a defence member, or defence civilian, who is serving outside Australia;
[188]
(j) the applicant is an AFP officer or staff member who is serving outside Australia;
[189]
(k) the applicant is an eligible overseas elector."
[190]
[66] The certificate referred to in s 184A(2)(f) of the Cth Act must be lodged with an application made on that ground (s 184A(4)). An application in respect of an elector to whom s 184A(2)(e) or (f) applies may be made by another person on behalf of the elector (s 184A(3)). Section 98(3) of the Cth Act provides:
[191]
"(3) Where a person wishes to make a claim for enrolment, for transfer of enrolment or for age 17 enrolment and a registered medical practitioner has certified, in writing, that the person is so physically incapacitated that the person cannot sign the claim, another person may, on behalf of the person, fill out and sign the claim in accordance with the directions of the first-mentioned person."
[192]
[67] Under s 67A of the Act, the ECQ must keep a register of special postal voters.
[193]
[68] An electoral visitor voter is, pursuant to s 105(4) of the Act:
[194]
"(a) an elector who will, because of illness, disability or advanced pregnancy, be prevented from voting at a polling booth;
[195]
(b) an elector who will, because the elector is caring for a person who is ill, has a disability or is pregnant, be prevented from voting at a polling booth."
[196]
[69] An elector, whose identity is not in issue, who may or must make a declaration vote, must cast such a vote in one of five ways set out in s 107 of the Act.
[197]
[70] If an elector is unable to enter a polling booth because of illness, disability or advanced pregnancy, but is able to come to a place close to the polling booth, then the issuing officer may perform his or her functions and the voter may vote at that place as if it were the polling booth (s 103(3), (4), s 107(a)).
[198]
2. Absent voting at a polling booth outside electorate
[199]
[71] If the elector is not enrolled for the electoral district in which the polling booth is located, such an elector must sign the appropriate declaration on the declaration envelope before the issuing officer and have the officer sign the envelope as witness (s 107(b), s 108). At a State general election, electors may vote at any polling booth in Queensland. There were 1,345 polling booths in Queensland for the 2009 State election. Absent votes are forwarded to the returning officer in the elector's enrolled district for counting.
[200]
[72] For the 2009 State election, for the first time in any State election, the ECQ deployed small handheld computers in each polling booth, each loaded with a full copy of the Queensland electoral roll. This made it easier to verify each absent elector's enrolment details and to ensure that the correct ballot paper was issued. This was an improvement on previous elections where issuing officers had been required to rely on the elector's own understanding of the electoral district in which he or she were enrolled. In the event that the elector was mistaken, the ballot with which the person was issued would ultimately not be admitted to the count.
[201]
[73] If an elector wishes to make a declaration vote during the period beginning three days after the cut-off day for nominations and ending at 6 pm on the day before polling day, the elector may go to an office staffed by an issuing officer and request a ballot paper and declaration envelope from the officer. Once again, the appropriate declaration on the declaration envelope must be signed before the issuing officer and the officer must sign the envelope as witness. The dates for making such a vote during the 2009 State election were from 9 March 2009 until 6 pm on 20 March 2009 (s 107(c), s 109).
[202]
[74] For the 2009 State election, the ECQ established 225 pre-poll centres in Queensland and 18 interstate or overseas, including Queensland government offices overseas. The ECQ website shows that the overseas offices were in Shanghai, Bangalore, Seoul, Boroko, London, Hong Kong, Taipei, Tokyo, Wellington, Riyadh, Abu Dhabi and Los Angeles.
[203]
[75] An elector who is eligible to be an electoral visitor voter may, by writing signed by the elector and posted, faxed or delivered (by the elector or someone else) to the ECQ or the returning officer for the electoral district in which the elector is enrolled, request to vote as an electoral visitor voter. The request should state the address the electoral visitor is to visit. If the request is received not later than 6 pm on the Thursday before polling day (in this case 6 pm on Thursday 19 March 2009) the ECQ or the returning officer must ensure that an issuing officer visits the elector for the purpose of enabling the person to vote. Electoral visitor voting was available from 4 March 2009 to 6 pm on 21 March 2009. Such an elector may make an ordinary vote or declaration vote (s 107(e), s 111).
[204]
[76] As the question of postal voting loomed large in this application, I shall set out the text of s 110 of the Act in full:
[205]
"110 Making a declaration vote using posted voting papers
[206]
(1) An elector who is an ordinary postal voter may, by writing signed by the elector and posted, faxed or delivered (by the elector or someone else) to the commission or returning officer for the electoral district for which the elector is enrolled, request a ballot paper and declaration envelope.
[207]
(1A) The request must state the address to which the ballot paper and declaration envelope is to be posted, delivered or sent.
[208]
(2) If the request is received not later than 6p.m. on the Thursday before polling day, the commission or returning officer must post, deliver or send a ballot paper and declaration envelope to the elector.
[209]
(3) The commission must, as soon as practicable after the issue of the writ for an election, post a ballot paper and declaration envelope to each special postal voter.
[210]
(4) Returning officers and the commission must keep a record of all ballot papers and declaration envelopes posted, delivered or sent under this section.
[211]
(5) Subject to subsection (7), on receiving the ballot paper and declaration envelope, the elector must -
[212]
(a) sign the appropriate declaration on the declaration envelope before another elector or a person approved by the commission for the purposes of this paragraph and have the other elector or person sign the envelope as witness; and
[213]
(b) mark a vote on the ballot paper in accordance with section 113; and
[214]
(c) place the ballot paper in the envelope and seal the envelope; and
[215]
(i) give the envelope to a member of the commission's staff at an office of the commission before polling day or at a polling booth on polling day; or
[216]
(ii) post or send the envelope, or give it to another person to post or send, to the commission or the returning officer.
[217]
(6) If the elector is unable to vote without help, another person may help by doing any of the things mentioned in subsection (5)(b) to (d) on behalf of the elector.
[218]
(7) A member of the commission's staff who is given an envelope under subsection (5)(d)(i) must -
[219]
(a) if it is given before polling day - send the envelope to the appropriate returning officer or put the envelope in a ballot box at the office; or
[220]
(b) if it is given on polling day - put the envelope in a ballot box at the office."
[221]
[77] The requirements for the casting of a valid ordinary postal vote are:
[222]
The elector must make a request for a ballot paper and declaration envelope ("the application");
(a) by signing the person's name in writing on the application; or
[224]
(b) if the person is unable to sign as mentioned in paragraph (a) - by making the person's mark on the application as a signature before another person who signs the application as witness; or
[225]
(c) if the person is unable to sign as mentioned in paragraph (a) or make a mark as mentioned in paragraph (b) - by having another person (the other person) sign the other person's name in writing, and clearly print the other person's name and address and the words "signed for the elector", on the application;[7]
[226]
The application must be posted, faxed or delivered by the elector or someone else to the ECQ or the returning officer of the electoral district in which in the elector is enrolled;
The application must state the address to which the ballot paper and declaration envelope is to be posted, delivered or sent;
The application must be received by 6 pm on the Thursday before polling day;
If it is so received, the ECQ or the returning officer must post, deliver or send a ballot paper and declaration envelope to the elector;
Returning officers and the ECQ must keep a record of all ballot papers and declaration envelopes so posted, delivered or sent;
The elector must sign (in either of the three ways set out above) the appropriate declaration on the declaration envelope before another elector (or another person approved by the ECQ);[8]
The elector must have the other elector or person sign the declaration envelope as witness;
The elector must mark a vote on the ballot paper in accordance with s 113 or, if unable to vote without help, another person may mark a vote on the ballot paper, in accordance with s 113 on behalf of the elector;
The elector must place the ballot paper in the declaration envelope or, if unable to vote without help, another person may place the ballot paper in the declaration envelope on behalf of the elector;
The elector must:
[227]
o give the declaration envelope to a member of the ECQ's staff at an office of the ECQ before polling day or at a polling booth on polling day; or
[228]
o post or send the declaration envelope, or give it to another person to post or send, to the ECQ or the returning officer; or
[229]
o if the elector is unable to vote without help, another person may help by doing either of those things;
[230]
A member of the ECQ staff who is given a declaration envelope before polling day must send the envelope to the appropriate returning officer or put the envelope in a ballot box at the ECQ office;
A member of the ECQ staff who is given a declaration envelope on polling day must put the envelope in a ballot box at the ECQ office.
In addition, in respect of special voters, the ECQ must as soon as practicable after the issue of the writ, post a ballot paper and declaration envelope to each special postal voter.
[231]
[78] An application for postal vote can be made once the writ has issued. The time and date for the last receipt of an application for postal vote in this election was 6 pm on Thursday 19 March 2009.
[232]
[79] Mr Kerslake gave evidence that there a number of different ways that an application for a postal vote could be made to the ECQ. It could be made by facsimile transmission to the ECQ central postal voting centre or posted or delivered by the elector or by another person or organisation such as a political party to the ECQ central postal voting centre or to the returning officer of the electoral district.
[233]
[80] Those sent by facsimile transmission were almost immediately scanned and processed by the ECQ and declaration envelopes sent electronically to print by the returning officer of the relevant electoral district. Those applications delivered by political parties were often delivered in large batches to the central postal voting centre where they would be scanned. If the volume of applications received was too great for the applications to be scanned expeditiously or the applications had adhesive tape on them making them difficult to scan at the ECQ office, they were sent offsite to one of two centres with equipment which could scan huge numbers quickly. The turnaround time for the return of the scanned applications to the ECQ was usually 24 hours. All applications were then checked to see that they were valid under the Act and then the declaration envelope would be sent to an electronic print queue at the electoral district in which that voter was enrolled. Applications received by mail were scanned and then dealt with in the same way. Any applications hand delivered by electors to the ECQ were dealt with immediately. The time and date of receipt of applications is not recorded by the ECQ to save time. Mr Wiltshire said it was more important to have them scanned and into the system in order to issue the vote.
[234]
[81] The ECQ records electronically the time and date on which the application is scanned (whether internally or by external contractors) and then the time and date on which the scanned application is assigned and processed and the declaration envelope sent to the print queue in the electoral district in which the voter is enrolled. It also records electronically the address printed on the declaration envelope. The time and date on which the declaration envelope is printed out is also electronically recorded. The declaration envelope is designed so that it is returnable to the returning officer of the elector's electoral district. .
[235]
[82] The forms in which applications are made could be the form produced by the ECQ, which is available in hard copy in places such as post offices or electronically on the ECQ's website, or forms produced by the political parties. These forms are not required to be approved by the ECQ and often create difficulties for the ECQ in dealing with them expeditiously and for electors in ensuring that the applications are valid. I will return to this topic with recommendations for law reform.
[236]
[83] Section 110 of the Act was amended in a number of respects following the decision in Tanti v Davies (No 3).[9] At that time, s 110(2) provided:
[237]
"If the request is received not later than 6pm on the Thursday before polling day, the Commission or returning officer must post a ballot paper and declaration envelope to the elector."
[238]
[84] The only obligation imposed upon the ECQ in those circumstances - and it was a mandatory obligation - was to post out the voting materials. Section 110(2) of the Act was amended so that the ECQ or the returning officer was not restricted to posting the voting materials but was required to "post, deliver or send" the voting materials.
[239]
[85] The applicant argued that the ECQ must choose the means by which it is to fulfil its statutory function. She submitted that it is no longer the case that the ECQ can regard itself as having discharged its statutory function to make administrative arrangements for the conduct of an election merely by posting voting materials, particularly in circumstances where the ECQ knows that the materials will not arrive in time for electors to participate in the election and also where the delay in posting such materials is due to the processes adopted by the ECQ.
[240]
[86] The applicant submitted that it was clear from the evidence of Mr Kerslake and Mr Ludwig that the ECQ had facilities to send ballot papers and declaration envelopes electronically to the print queue of returning officers across the State. It was submitted that there was no reason to suppose that, for persons who had nominated addresses outside their own electoral district, the ECQ could not have sent their voting material electronically to the returning officer in the relevant area and that those materials could not have been delivered to the nominated address in the week before polling day. However, the evidence does not support this contention. There was no evidence that the ECQ's electronic facilities could have been used to send copies of declaration envelopes to returning officers relating to electors who were not enrolled in the electoral district of that returning officer. Rather, it seems more likely that the electronic program ensured that the declaration envelopes for electors within a particular electoral district were sent only to the returning officer of that district.
[241]
[87] The ballot papers were not sent electronically with the declaration envelope. As Mr Ludwig's evidence showed, the ballot paper for the electoral district and a "reply-paid" envelope addressed to the returning officer in the relevant electoral district were added to the declaration envelope by the returning officer. It cannot safely be concluded that it would have been more efficient to send declaration envelopes to the returning officers of electoral districts in which electors from another district had nominated they would be on polling day. Indeed it seems likely that the result would have been more confusion, which would have increased the possibility of error. In any event, this does not deal with electors who had nominated that they would be interstate or overseas.
[242]
[88] The second respondent submitted that the history of the provision is instructive. In Tanti v Davies (No 3) the ECQ, realising that merely posting ballot papers to soldiers in Rwanda was unlikely to allow them to arrive in time to allow the soldiers to vote, had arranged for the Australian Defence Force ("ADF") to deliver the voting papers. The ADF courier urgently sent the ballot papers to Brussels but the soldiers did not receive them in time. Ambrose J held that the ECQ could have performed its statutory obligations under s 110(2) by simply posting the ballot papers and taking the attitude that, having done so, it would not be responsible for any deficiency in the postal service between Australia and Rwanda.[10] However, Ambrose J held that having chosen to deliver the ballot papers, a method not authorised by s 110(2), the ECQ was responsible for the error or omission of the ADF courier.[11]
[243]
[89] In this context, it was submitted that the amendment to s 110(2) to allow the ECQ to "deliver or send" a ballot paper was intended to expand the options open to the ECQ as to what it was permitted to do but not to change radically the obligations of the ECQ by imposing a requirement that it must deliver ballot papers in time for all voters who request a postal vote to be able to cast such a vote.
[244]
[90] The applicant submitted that plainly the intention of the Parliament is that any elector who requests a declaration vote before 6 pm on the Thursday before polling day is to be given the opportunity of participating in the election by completing their ballot paper before 6 pm on polling day and posting it back to the ECQ in a declaration envelope to be received by 6 pm on the tenth day after polling day. Consequently, it was submitted that the ECQ must put administrative arrangements in place that are appropriate to achieve that outcome.
[245]
[91] Section 110(2) was amended by the Electoral Amendment Act 1997 (Qld). The explanatory memorandum indicates that the amendments flowed from "the views expressed by Ambrose J" and the LCARC Report and says that the amendment to s 110 was to:
[246]
"allow the ECQ to send the ballot paper and declaration envelope to the postal voter by means other than the post and the voter to return the declaration envelope containing the ballot paper likewise by means other than the post." (emphasis added)
[247]
[92] The second respondent submitted that there was no hint in the explanatory memorandum or the LCARC Report that the purpose of the amendment was to impose additional obligations upon the ECQ.
[248]
[93] Further, it was submitted, as it would be impossible for the ECQ to comply with the requirement contended for by the applicant, the legislature could not have intended to give the ECQ such a task, with the attendant risk than any election is liable to be set aside. For example, it was submitted, it would be impossible to "deliver" all voting materials in response to applications received on the Thursday before polling day to electors. Mr Kerslake's evidence was that approximately 6,500 applications for postal votes were received on that Thursday. There would have been applications which arrived on the Thursday from interstate and overseas. It could not be supposed that the legislature intended that the ECQ must ensure that the ballot papers are received by an elector in a remote place when that elector's application for a postal vote arrived at 5.30pm on the Thursday before polling day.
[249]
[94] The second respondent submitted that the ECQ's obligation is expressed disjunctively and that it may post or deliver or send a ballot paper and declaration envelope. It is open to the ECQ to use any of the methods described in the provision. It may satisfy its obligation by putting the ballot paper in the post and allowing the post to take its course.[12] But it may also satisfy its obligation by sending or delivering the ballot papers by some other means, as Mr Ludwig said he did with some of the applications for postal votes received from electors in Chatsworth who gave an address within Chatsworth as the address to which they wanted their voting materials delivered.
[250]
[95] I find myself in respectful agreement with the ECQ's submissions on this point. The obligation under s 110(2) is to "post, deliver or send" material to the elector. The elector is required to state the address to which the material is to be posted, delivered or sent: s 110(1A). What s 110(2) requires is that material be posted, delivered or sent to the elector at that address. There is no obligation to ensure that the elector is available and able to collect the material. There is no obligation to place the material in the elector's physical possession. Where that is required, the Act says so: see, for example, s 110(5)(d)(i) and (7); s 102(4); s 104(2)(a) and 111(4)(a); s 108(3); s 109(3); and s 112(2).
[251]
[96] Section 110(2) is complied with if material is posted to the elector at the requested address. Posting is authorised by s 110(2). So are other (unspecified) means of delivery or sending. None is mandated. Section 110(2) is addressed to the ECQ and returning officers. It is concerned with actions which lie within their power to perform. Section 110(2) is not concerned with receipt by an elector, but with posting, delivering or sending material to an address nominated by the elector.
[252]
[97] Mr Kerslake, the Commissioner, gave evidence as to the ECQ's method of processing postal vote applications for the 2009 State election. The processing of postal vote applications was centralised at a single location. Over 80 staff were employed for various periods at a central postal voting facility ("CPV") at Woolloongabba. Postal vote applications were received at the CPV from a variety of sources including the ECQ head office, returning officers and political parties. Political parties were requested by the ECQ to deliver applications to the CPV up until the final week before polling day and thereafter to the relevant returning officer.
[253]
[98] Postal vote applications were scanned into the ECQ's declaration voting system and matched against the electoral roll. The lists were then forwarded electronically to the relevant returning officer whose task was to print off the declaration envelope and post the ballot material. Since many postal voters would be in their own electoral district during the election period, Mr Kerslake said that posting the actual ballot material locally reduces postage times. Obviously the despatch of postal votes cannot begin until ballot papers are available.
[254]
[99] This method had been trialled in the local government elections before its use in the 2009 State election. It was submitted by the applicant that it led to considerable delays in the despatch of postal votes particularly in the period up to 16 March 2009 and therefore that declaration envelopes and ballot papers should have been despatched other than by post. For the reasons already given, however, the ECQ had a discretion to despatch the voting materials by means other than post but had no obligation to do so. Further, I would not readily conclude that it was the use of a centralised electronic system which led to delays. It appears that any delay was the result of the increasing number of requests for postal ballots that were received and the large number delivered to the ECQ, particularly on 3 March 2009. The centralised electronic system has the advantage that it provides an accurate record of when applications were scanned and processed when declaration envelopes printed and the address to which each declaration envelope was sent. The centralised scanning process led, with remarkably few exceptions, to clear copies being kept of the applications for postal votes.
[255]
[100] Mr Kerslake said that to maximise processing speed, the ECQ did not issue receipts to political parties for individual elector applications they delivered. This also avoided lengthy delays for party officials who would otherwise have had to wait some time while the number of applications in each batch was counted. There is no statutory duty on the ECQ to issue a receipt for each application for postal vote that it receives nor to date stamp those received.
[256]
[101] Mr Kerslake said that if an application was rejected for any reason (such as failure to sign the application) a letter was sent to the elector advising of the reason and giving the elector an opportunity to submit a fresh application. As I have already observed, there is no statutory obligation on the ECQ to do so.
[257]
[102] Mr Kerslake said that every application for a postal vote received by the ECQ up to the deadline of 6 pm on Thursday 19 March 2009 was processed and ballot material despatched. He said that in any election, however, some electors leave it until the last minute to apply and 2009 was no exception. Over 6,700 applications from across Queensland were received by the ECQ on the cut-off day. 1,500 of those were delivered by the LNP at 3.20pm on that day. Mr Kerslake that ECQ staff worked into the night to process last minute applications but despite this, the time taken for mail delivery inevitably meant that a number of those applicants would not have received their ballot papers in time to vote. This is a further reason for the law reform which I recommend later in these reasons.
[258]
[103] Mr Kerslake said in some instances the time taken to process applications was prolonged because of particular processes adopted by political parties. At recent elections there has been a constant increase in postal vote activity by political parties, which mail applications to electors with a reply-paid envelope that is returned to the political party in the first instance. Before passing these applications on to the ECQ, the political party records each elector's details on a database and then obtains progressive lists of processed applications from the ECQ, with the aim of timing the mail-out of campaign literature to coincide with the despatch of ballot material.
[259]
[104] Mr Kerslake said that while this process may have been intended to benefit electors as well as political parties, it nevertheless constituted an additional step in the process, which may have been a factor in some cases where electors' departure for overseas was imminent.
[260]
[105] In some cases it took longer to process applications because of the way the political parties designed their particular applications. For example, some forms used adhesive tape as a seal, which prevented the ECQ's own equipment being used so that the forms had to be sent offsite for scanning with more "hi-tech" equipment, adding to the processing time.
[261]
[106] Other forms allowed two electors to apply on the one page, meaning that all these forms had to be double handled. An elector filling in a second box on someone else's behalf could also mistakenly sign both parts, with the attendant risk that the signature on one of the ballot paper declarations would not match the corresponding application and would therefore be rejected at scrutiny.
[262]
[107] Mr Kerslake said that for the 2009 election in the electoral district of Chatsworth, 91.2 per cent of the postal votes issued were posted to electors at either their home address or to a post office box within the electoral district of Chatsworth. This suggests that many postal vote applicants were in fact still at home during the election period and could have availed themselves of other facilities for voting. Mr Wiltshire said that it appears that more people are applying for postal votes as "a lifestyle choice" to enable them to vote during the week and leave the weekend free.
[263]
[108] The ECQ's records show that of the 2,476 postal votes sent to electors in Chatsworth during the 2009 State election, 90.2 per cent were returned. This compares favourably with the percentage returned in the State as a whole, where 87.4 per cent of the 205,907 postal votes issued were returned. The percentage returned in Chatsworth in 2009 is similar to the percentage of postal votes returned in Chatsworth in 2006 where there were 2,349 postal votes issued with a 90 per cent return rate. It is not surprising that there is not a higher rate of return. This is the only type of voting where there is no electoral officer present to help the elector. Mr Wiltshire gave evidence that many people think they have done their civic duty by merely applying for a postal vote. Some ballot papers sit "on top of the fridge" and the elector simply neglects to return them. Some electors leave the State or the country before the ballot papers are printed and, particularly if the only address they give is their enrolled address, the ballot papers cannot be issued to them in time for them to vote.
[264]
[109] Mr Kerslake said that a number of security measures have been put in place in relation to postal voting. The first stage of scrutiny requires the matching of signatures. The returning officer scans the envelope with a barcode reader which brings up on a computer the elector's details and a scanned image of the signature on their application. This is matched against the signature on the declaration envelope and the vote is accepted to the count or rejected as appropriate. The offsite industrial scanners, in the vast majority of cases, produced very clear scans which made reading the signature on the scanned image of the application much easier.
[265]
[110] Mr Kerslake deposed that when a declaration vote is rejected, this is not in itself evidence of deliberate fraud. From his experience he said that a typical situation would involve an elector who filled out both the elector's own application and another on behalf of a spouse or an elderly relative. If the elector inadvertently signed both applications, the signature on the other elector's application obviously would not match the one that appears on the corresponding declaration envelope, resulting in the vote being rejected. Notwithstanding that, Mr Kerslake said that if the ECQ became aware of clear evidence of any type of electoral fraud that could affect the outcome in a particular electorate, it would as a matter of course refer the matter to the Court of Disputed Returns pursuant to s 129 of the Act. Cases of apparent fraud are also forwarded to the police for investigation.
[266]
[111] The Act further provides that all stages of the vote counting process, including the handling of declaration envelopes, are open to scrutiny (s 99). If a scrutineer objects to the assessment of a ballot paper as formal or informal, the polling official must note his or her decision on the back of the ballot paper as a means of identifying that an objection has been made (s 120). Scrutineers from both the ALP and the LNP were in attendance at all stages of the count for the Chatsworth electoral district at the 2009 State election.
[267]
[112] Mr Ludwig, the returning officer for the electoral district of Chatsworth, gave evidence of his practice in processing applications for postal votes. As he said, postal vote applications may be made by electors either to the ECQ or directly to the returning officer for the particular electoral district.
[268]
[113] Where postal vote applications were made by an elector to the ECQ, those applications were processed by the ECQ. Where they were validated by the ECQ, the data for the particular elector was forwarded to the returning officer electronically in a print queue to enable a postal vote declaration envelope to be printed. The returning officer then accessed that data and printed a declaration envelope for the particular elector. Once the declaration envelope had been printed, the returning officer put a ballot paper for the electoral district in the declaration envelope together with a return pre-paid envelope addressed to the returning officer into another envelope to be despatched to the elector.
[269]
[114] Mr Ludwig gave evidence that during the 2009 State election his practice with regard to Chatsworth was to clear each day any postal vote data forwarded to him electronically from the ECQ for that particular day. He then printed declaration envelopes in relation to each particular elector. Once those envelopes were printed he placed a ballot paper for the Chatsworth electorate with a declaration envelope and a return pre-paid addressed envelope into an outer envelope ready for despatch to the relevant elector.
[270]
[115] On each day leading up to polling day, from the date the election was announced on 23 February 2009, he attended the Cannon Hill Post Office on two occasions: first at 9 am and then at 5 pm. At 9 am he cleared the post box for the returning officer, which would include applications for declaration votes made directly to the returning officer. At the same time he would post the postal votes that he had processed the evening before after the 5 pm post office visit. He went to the Cannon Hill Post Office each day at 5 pm to post all declaration postal votes that he had processed during that day.
[271]
[116] If the address to which the postal ballot was to be sent was interstate or overseas or required urgently, Mr Ludwig would take whatever steps he could, whether by express post or international post, to endeavour to get it to the elector. He said in evidence that he did whatever he could to meet electors' expectations of getting their ballot papers in time to cast a vote. He was of the view, however, that the only way he could send those ballot papers was by post. Of course that view is not strictly correct. He could have used delivery methods other than by post (as indeed he did on Friday 20 March to electors who gave addresses within Chatsworth for delivery of their postal ballot papers) but there was no obligation for him to use delivery methods other than post.
[272]
[117] Any applications for postal voting sent to Mr Ludwig directly as returning officer rather than centrally to the ECQ were checked by him to ensure that the person was enrolled correctly, and that the person was eligible for a postal vote. If the application was in order, he issued the declaration envelope and sent that and the ballot paper to the postal voter. He then filed them alphabetically so that he could check the signature when the postal vote was returned.
[273]
[118] On Thursday, 19 March 2009, Mr Ludwig attended the Cannon Hill Post Office at 9 am and 5 pm as usual. However, as the Act allows declaration postal vote applications to be made up to 6pm on that day, he continued to process any applications for declaration postal votes that he received either from the ECQ or from individual electors up to 6 pm on 19 March 2009.
[274]
[119] Mr Ludwig deposed that he had attended the Cannon Hill Post Office at 9 am on Friday, 20 March 2009 to post voting material in respect of those declaration postal vote applications received up until 6 pm on 19 March 2009 that specified a delivery address outside the Chatsworth electoral district. For those applications for declaration postal votes that were made by electors living within the Chatsworth electoral district received by Mr Ludwig between 5 pm and 6 pm on 19 March 2009, he personally delivered the ballot material to the address indicated on the application form and placed the elector's envelope in the letterbox at that address.
[275]
[120] Mr Ludwig acknowledged that he realised that those ballot papers that were posted after 5 pm on Thursday 19 March did not have any prospect of being received by the elector prior to polling day on 21 March. He said that there were 31 or 34 of those.
[276]
[121] Mr Ludwig also gave evidence as to his usual procedure for dealing with postal votes he received. He said his process for dealing with postal votes was that, as well as collecting mail, before polling day, he continued to collect mail from the post office up until the declaration of the poll for the electoral district of Chatsworth which was 3 April 2009. When he returned to his office after collecting the mail he date-stamped each of the outer envelopes collected that day. He then opened the outer envelopes to ascertain the contents. When the contents were identified as a declaration postal envelope, he proceeded to date the declaration postal envelope with a date stamp and placed those envelopes in a sealed box for the Chatsworth electoral district that was held in his office.
[277]
[122] Between 18 and 20 March 2009, he opened the declaration postal envelopes contained in the sealed ballot box and checked the signatures against the relevant postal vote application forms to determine the validity of the vote. The votes that were determined to be valid were placed in a sealed ballot box to form part of the official count and scrutiny for the electoral district of Chatsworth.
[278]
[123] Michael Caltabiano was the campaign manager for Andrea Caltabiano for the 2009 State election. Mr Caltabiano's evidence was that he supervised the processing of all postal votes and electoral visitor vote applications for the LNP for the electoral district of Chatsworth. He said the LNP personally addressed mail to each elector on the Chatsworth electoral roll containing a letter and an application form for a postal vote or electoral visitor vote for the 2009 State election. This application form is designed by the LNP and, while it contains all the information required to be provided for an application for a postal vote or electoral visitor vote, it is not in the same form as that created by the ECQ and it has provision for two different electors to fill in forms on one page. The application form was accompanied by a reply-paid envelope.
[279]
[124] The ALP also provides applications to electors for postal and electoral visitor votes. The form provided by the ALP has provision for two electors to fill in their names on one form.
[280]
[125] There is nothing sinister about the behaviour of either political party in designing their application forms but it did have the capacity to cause errors with applicants making errors in signing the form. This matter was canvassed in these proceedings and suggestions for law reform were made to lessen the prospect of voters making unintended errors in future elections. I make recommendations for relevant law reform at the end of these reasons.
[281]
[126] Mr Caltabiano said that the envelope inserted with each of the postal vote and electoral visitor application forms was in a "reply-paid" format that recorded a reply-paid address of PO Box 1163, Carindale. This was the postal address for Ms Caltabiano's campaign office. He said that the letters and application forms were delivered to the post office at Northgate prior to 6 pm on the day the election was called. This was on 23 February 2009, which was the date the writ was issued.
[282]
[127] Mr Caltabiano said his practice was that each morning the reply-paid post box at the Carindale Post Office was emptied between 8 am and 9 am. The application forms received were then taken to the electoral campaign office at 787 Old Cleveland Road, Carina where the elector's name, address, date of birth and enrolment details were entered into a computer database by Phoebe Montgomery.
[283]
[128] Mr Caltabiano said that each day between 1 pm and 5 pm the postal vote and electoral visitor vote applications entered into the database were delivered to the ECQ office at its Vulture Street premises by himself or Ms Montgomery. In oral evidence he said this occurred from 3 March 2009 onwards. He said the ECQ staff personally received the applications on each day that they were delivered. No record was made of the applications received nor was any receipt provided by the ECQ to Mr Caltabiano of the applications received. As I have said earlier, there is no obligation on the ECQ to provide a receipt of all the applications for postal votes it receives. Under s 110(4) of the Act the returning officer and the ECQ are bound to keep a record of all ballot papers and declaration envelopes posted, delivered or sent. They are not obliged to record all applications received nor to give a receipt to any person who delivers applications to them.
[284]
[129] Mr Caltabiano exhibited a list of electors whose applications were delivered by him or Ms Montgomery to the ECQ sorted by the date they were delivered. He said that the list represented the people whose applications for postal vote or electoral visitor vote were lodged by the LNP.
[285]
[130] The lists for the various days were created by Ms Montgomery, who did not give evidence as to how that was done. The lists were not precise as to the names of electors for whom postal vote or electoral visitor vote applications were made. For example, as Mr Caltabiano conceded on cross-examination, where a single name appears, an application for the spouse of that person may also have been sent to the ECQ but not recorded. Conversely, where the names of a married couple appear, an application may only have been delivered for one of them. Entries sometimes refer to "and family" but the number of electors to which this may apply is not recorded. There are other reasons that the list cannot be relied upon as a precise record of applications delivered. Those received until 3 March 2009 were kept in a photocopy box and the applications were delivered variously in photocopy boxes or photocopy box lids.
[286]
[131] There is nothing surprising in these errors. The list was prepared not to keep a numerically accurate record of the names of each elector for whom an application was delivered to the ECQ, but rather for its subsequent use as a mail-out list, to assist the electoral campaign, of the persons or households for whom postal vote applications had been delivered. While the list is of assistance in determining when a particular application was delivered to the ECQ, it cannot be relied upon to determine the precise number of applications delivered or the identity of every person for whom an application was delivered. It shows that about 847 applications were delivered on behalf of Ms Caltabiano on 3 March 2009. These were the applications which had been returned to the LNP Chatsworth campaign office by that date. They were not examined to see if they complied with the Act. As Mr Caltabiano said, that was a matter for the ECQ.
[287]
[132] The ECQ annotated Ms Montgomery's list as deposed to by Mr Caltabiano to show the names of electors on that list who had voted at the 2009 State election. The annotated list was exhibited to Mr Wiltshire's affidavit. I will refer to these lists in these reasons where relevant.
[288]
[133] Mr Caltabiano said that as well as the postal vote and electoral visitor vote applications which were received, "return to sender" mail was also received at the post office address and processed through the campaign office. Mr Caltabiano provided a list of electors whose mail was returned to the LNP campaign office as "return to sender" but who had also voted as absent voters. This list was not otherwise referred to in evidence or submissions and was not part of the particulars of any of the grounds of the application, so need not be further considered.
[289]
[134] Mr Kerslake gave evidence that "return to sender" mail provided to a Member of Parliament or political party is not absolute proof that an elector has moved. Members of the community who do not wish to receive political material may simply opt to return it. Others may be temporarily absent from their home but entitled to retain their enrolment at that address. Electors with no fixed address can remain on the roll at their last enrolled address. They may not be known to the current resident and therefore may be returned to sender, but they are nonetheless entitled to be enrolled at that address.
[290]
[135] Andrew Bibb, who is described in his affidavit as a communications manager, gave evidence that he had reviewed the records provided to the applicant by the ECQ as to who had voted by postal vote and compared those with records held by Ms Caltabiano. He said he identified 130 people who had filled in an application for postal ballot which had not been either processed or rejected by the ECQ. The list of electors in Chatsworth who cast their vote by postal voting is found in Exhibit 5. Mr Bibb said that, as a consequence, nine of those persons did not vote, with the balance (i.e. 121) voting by an alternate means.
[291]
[136] Mr Wiltshire's evidence was that of the 130 names on that list, 122 persons voted by other means whether by pre-poll voting, electoral visitor voting, absent voting, voting at a declared institution or at a polling booth on polling day within the Chatsworth electoral district. The eight persons who did not vote were: Tomlyn, Shirley June (27791); Gliddon, Anthony Michael (9900); Dawson, John (6473); Kantor, Joseph (14047); Cordwell, Keith Alexander (5458); Burton, Peter Gereard (3406); Burton, Carmel Jane (3393); and Martens, Christie Jane (18053). Each of those electors will be considered under ground 4(a), except John Dawson, who will be considered under ground 4(g).
[292]
[137] It was submitted on behalf of the applicant that, although she could not complain that the 122 persons on that list did not vote, it showed that the ECQ had not been effective in providing ballot papers in a timely way to those 122 people, which meant that they had to vote other than by postal vote. That is, however, not an inevitable or even a likely inference from the information available about those voters.
[293]
[138] I have compared the list provided by Mr Bibb with the consolidated electoral roll and the lists exhibited to Mr Caltabiano's affidavit. The imprecision, to which I have earlier referred, in those lists made the comparison I have undertaken a necessarily imprecise task. It shows that three of the 122 probably cast postal ballots. About 32 of them voted as electoral visitor votes. The application forms submitted to the ECQ by the LNP could be used to apply for a postal vote or an electoral visitor vote. I inferred that those persons applied for electoral visitor rather than postal votes. About 70 of them voted before polling day as pre-poll voters. They may have decided to vote at a pre-poll centre before polling day and simply chose not to vote by postal ballot. About nine voted as absent voters. They may have received postal ballot papers but nevertheless decided to vote elsewhere in the State at a polling booth on polling day rather than cast a postal ballot or perhaps they had not received their postal ballots by polling day and exercised their right to vote at a polling booth where they were outside their electorate. One voted as a Declared Institutions absent voter. Only about seven voted at polling booths in the electorate: four at Gumdale, two at Belmont and one at Carina Heights. Not all of the persons on Mr Bibb's list are in fact on Mr Caltabiano's list.
[294]
[139] During the hearing, the applicant tendered as Exhibit 12 what was described as the bundle of applications for postal votes described in Mr Bibb's affidavit. A perusal of those applications confirms that a number of them were in fact, as I had inferred, applications for electoral visitor votes. There are applications in Exhibit 12 for persons not mentioned in Mr Bibb's affidavit. The consolidated electoral roll shows that those persons did in fact vote by postal ballot. Some of the applications in Exhibit 12 show that the person was leaving their enrolled address soon or had already left and yet gave no other address than their enrolled address. In these circumstances it is hardly surprising that a number of people on the list chose to vote by pre-poll or absent voting to ensure they were able to cast their vote.
[295]
[140] Mr Wiltshire's evidence was that Exhibit 5, which contained the list of electors who voted by postal ballot, did not contain a list of all voters who had applied for, or who had applied for and received, postal ballot papers from the ECQ. The list does not contain the names of those persons who had applied for and were issued with a postal vote but who had, for whatever reason, chosen to vote by other means. Nor does it contain the names of electors who had applied for a postal vote but voted by other means before the postal vote issued. The electronic voting program issued by the ECQ removed from the postal vote list the names of electors who had been issued a postal vote but voted by means other than the postal vote applied for. It also does not allow a postal vote to issue where a person has voted in another way, such as by pre-poll voting. The reason for this is to prevent these electors from voting twice or being identified after the election as multiple voters. Electors who apply for a postal vote but who do not receive or return the material later than the cut-off date for its receipt are automatically removed from the list of non-voters at the election due to their having applied for a postal vote.
[296]
[141] Mr Wiltshire's evidence was that ECQ records show that, of the 122 electors on Mr Bibb's list who cast a vote, 87 had completed a postal vote application. Of those 87, only three were not processed by the ECQ. This was an error caused by the fact that their application was one of two on the same form and were therefore missed by ECQ staff when processing the applications. However, all three voted at a polling booth on polling day.
[297]
[142] Of the remaining 35 from Mr Bibb's list, 29 applied for an electoral visitor vote and were visited by an electoral officer and had their vote taken. This includes three electors who had originally applied for a postal vote and had their votes at their request changed to an electoral visitor vote. The ECQ has no record of having received an application for a postal vote from the remaining six, but each of them voted at the election by other means. Of those six, there is no copy of the applications of three of them in Exhibit 12.
[298]
[143] In addition, Mr Bibb provided a list of 58 people whose applications for postal ballots were provided by Mr Caltabiano to the ECQ. These were scanned and processed by the ECQ. Those electors nevertheless did not vote by postal vote. Forty-eight voted by alternative means with the remaining ten not voting.
[299]
[144] Mr Wiltshire deposed that ECQ records show that all 58 persons on that list were issued with a postal ballot by the ECQ. The ECQ records further show that 44 persons on that list did not return their postal ballots but instead voted at a polling booth within the Chatsworth electorate on polling day. Those persons were not particularised in the applicant's claim and therefore need not be further considered. Of the remaining 14 persons, four were recorded as having voted in another way. They were Gos, Felicja (10116); Iselin, Irene Gertrude (13125); Lewis, Gloria Eileen (15933); and Madigan, Charles Michael John (17612). These four persons will be considered under grounds 1 and 2.
[300]
[145] Mr Wiltshire deposed that the ECQ records show that the remaining 10 persons on the list were issued with postal ballots by the ECQ but the completed material was not returned to the ECQ within the 10-day period following polling day as required by s 116(2)(d) of the Act to be accepted for counting. To the extent that those persons have been referred to in the particulars, they will be dealt with under the appropriate ground. Of those, only Lenora Wernet, whose name on the electoral roll is Hutchinson, Lenora Catherine (29526), is particularised in the applicant's grounds, under ground 4(d).
[301]
[146] Contrary to the applicant's submissions, the Court is not inclined to extrapolate from this evidence that the ECQ was not administering the election with the required efficiency nor that voters were denied the opportunity to vote by the ECQ's adopting a central processing facility for declaration requests. In view of the increasing incidence of postal voting caused in no small part by the actions of the political parties in sending postal vote applications to each elector, it was arguably the most efficient of way of dealing with so many applications.
[302]
[147] Section 3 of the Act provides that a "formal ballot paper has the meaning given by section 114(4)" and that an "informal ballot paper has the meaning given by section 114(5)." A "first preference vote means the number 1 or a tick or cross written in a square opposite the name of a candidate on a ballot paper."
[303]
[148] Subdivision 3 of div 5 of pt 6 of the Act deals with the marking of ballot papers. Section 113(1) provides that electors must vote in accordance with sub-ss (2) or (3). Subsection 113(2) provides that:
[304]
"An elector may vote by writing on a ballot paper the number 1, a tick, or a cross, in the square opposite the name of only 1 candidate to indicate the elector's preference for the candidate."
[305]
"Instead of voting in accordance with subsection (2), an elector may vote by -
[306]
(a) writing on a ballot paper the number 1, a tick, or a cross, in the square opposite the name of a candidate to indicate the elector's first preference for the candidate; and
[307]
to indicate the order of the elector's preferences for 1 or more (but not necessarily all) of the other candidates."
[308]
[150] Section 114 of the Act sets out what constitutes formal and informal ballot papers. Relevantly for the purpose of the determination of the questions in issue under ground 5, it provides:
[309]
(1) Subject to this section, for a ballot paper to have effect to indicate a vote for the purposes of this Act -
[310]
(a) the ballot paper must contain writing that is in accordance with section 113 or other writing or marks that indicate the voter's intended preference or intended order of preferences; and
[311]
(b) the ballot paper must not contain any writing or mark (other than as authorised by this Act) by which the elector can be identified; and
[312]
(2) For the purposes of subsection (1)(a) and other provisions of this Act -
[313]
(a) if a ballot paper contains 2 or more squares in which the same number is written or marked - the numbers and any higher numbers written or marked in other squares are to be disregarded; and
[314]
(b) if there is a break in the order of the preferences indicated in writing or marks in the squares on a ballot paper - any preference after the break is to be disregarded.
[315]
(4) If a ballot paper has effect to indicate a vote, it is a formal ballot paper.
[316]
(5) If a ballot paper does not have effect to indicate a vote, it is an informal ballot paper."
[317]
[151] Section 115, which is found in div 6 of pt 6 of the Act, provides that votes at an election are to be counted in accordance with that division. Section 116 of the Act deals with the preliminary processing of declaration votes. It provides, relevantly:
[318]
"116 Preliminary processing of declaration envelopes and ballot papers
[319]
(1) The commission or the returning officer for each electoral district must ensure that members of the commission's staff examine all declaration envelopes received by the commission or returning officer to determine whether the ballot papers in them are to be accepted for counting.
[320]
(2) A ballot paper must be accepted for counting only if the person examining the declaration envelope is satisfied that -
[321]
(a) the elector concerned was entitled to vote at the election; and
[322]
(b) the declaration was signed and witnessed before the end of voting hours on polling day; and
[323]
(c) if the declaration on the envelope was witnessed by a person other than a member of the commission's staff - the signature on the envelope corresponds with that in the request and the requirements of section 110(5)(d) were complied with; and
[324]
(d) if the ballot paper is in a declaration envelope received by post - the envelope was received before 6p.m. on the 10th day after polling day for the election.
[325]
(4) If a declaration envelope received by a returning officer is for a different electoral district, it must be sent to the commission or the appropriate returning officer without being examined under this section."
[326]
[152] Under s 116(2) of the Act a ballot paper could only be accepted for counting in the 2009 State election if the person examining the declaration envelope were satisfied that:
[327]
The elector was entitled to vote in the election;
The declaration was signed and witnessed before 6 pm on 21 March 2009;
If the declaration was witnessed other than by a member of the ECQ's staff, that the signature on the envelope corresponded with that on the application;
The envelope was given to a member of the ECQ's staff on or before polling day or posted or sent to the ECQ or the returning officer by the elector or another person; and
If the declaration envelope was received by post, it was received by 6 pm on 31 March 2009.
[328]
[153] A postal voter whose postal declaration is dated after polling day, or whose ballot paper is not received by 6 pm on 31 March 2009, will not have their vote counted.
[329]
[154] Mr Kerslake gave evidence that the checks that are carried out with regard to any declaration vote are as follows:
[330]
"• The elector must be entitled to vote. Checks are conducted to confirm the elector's name appears on the roll for the relevant district.
[331]
The declaration must be signed and witnessed before 6.00pm on election day. The signature on each elector's declaration envelope is compared with the signature on their original postal vote application to ensure that they match, checks are conducted to ensure that the form has been witnessed and that the elector's and witness' signatures are dated prior to 6.00pm on election day (Saturday 21 March 2009).
The ballot paper must be received no later than 10 days after polling day (by 31 March 2009). Returning officers must not admit to the count any ballot received after this period."
[332]
[155] With regard to the requirement in s 116(2), it should be noted that it is the satisfaction of the person examining the declaration envelope that is required. The second respondent submitted that there could only be a contravention of s 116(2) if, relevantly, the returning officer rejecting the ballots could not be said, as a matter of law, to be "satisfied" of one of the matters of which he or she was required to be satisfied.
[333]
[156] Where a statute provides that an authority may make a certain decision if it is "satisfied" of the existence of certain matters specified in the statute, a decision can only be effectively reviewed by the Court where there is some error of law, such as acting arbitrarily or capriciously or unreasonably or failing to take relevant considerations into account or taking irrelevant considerations into account or the decision is so unreasonable that no reasonable person could have made it.[13]
[334]
[157] Votes are counted on polling day in accordance with s 118 of the Act. Mr Kerslake said that the counting of ordinary votes commences as soon as polling booths close at 6 pm on polling day. All "number 1" votes are counted at the booth that night and there is an indicative count of preferences. This is known as the "two candidate preferred" vote. Absent votes are placed in sealed ballot boxes for secure transit to the relevant returning officer.
[335]
[158] After polling day, votes are counted in accordance with s 119 of the Act (see s 117(b)). Subsections 119(1), (2), (3) and (4) provide:
[336]
(1) As soon as practicable after polling day, the returning officer for each electoral district must ensure that the commission's staff follow the procedures set out in this section.
[337]
(a) open all ballot boxes in relation to the electoral district that have not previously been opened; and
[338]
(b) identify all declaration envelopes and keep those in relation to different electoral districts in separate parcels; and
(c) seal up each parcel of envelopes for an electoral district other than the returning officer's electoral district, write on each a description of its contents, sign the description and permit any scrutineers who wish to do so to countersign the description; and
(d) send the parcels to the returning officer for the appropriate electoral district.
(3) Secondly, the staff must -
[339]
(a) open all sealed parcels of ballot papers sent to the returning officer under section 118; and
[340]
(b) arrange all formal ballot papers under the names of the candidates for the election by placing in a separate parcel all those on which a first preference vote is indicated for the same candidate; and
(c) count the first preference votes for each candidate on all of the formal ballot papers.
(4) Thirdly, the staff must -
[341]
(a) open all ballot boxes on hand in which ballot papers from declaration envelopes have been placed under section 116(3); and
[342]
(b) arrange all formal ballot papers under the names of the candidates for the election by placing in a separate parcel all those on which a first preference vote is indicated for the same candidate; and
(c) count the first preference votes for each candidate on all of the formal ballot papers and add the number to that obtained under subsection (3)(c); and
(d) reapply paragraphs (a) to (c) as more envelopes are placed in ballot boxes under section 116(3), until there are no more envelopes required to be placed in ballot boxes under that section."
[343]
[159] Mr Kerslake gave evidence that the counting of declaration votes commences on the Sunday after polling day and continues over the next 10 days as the postal votes are returned. Mr Kerslake's evidence was that the following procedures apply to the counting of all declaration votes. Each declaration envelope is examined to verify that the elector is on the roll and thereby entitled to vote. Then, if the ballot paper is accepted, it is taken out of the envelope without unfolding it (to protect the security of the elector's vote) and admitted to the count. Then the declaration envelopes and postal vote applications are retained separately.
[344]
[160] Thirty-eight postal votes were rejected at scrutiny. Of these:
[345]
Twenty-six were rejected because the signature on the declaration by the elector did not match that of the elector on the postal vote application. Seven of those electors are particularised in the application and will be considered under those grounds:
[346]
o under ground 4(e): Sheil, Warren John (25105); and
[347]
o under ground 4(g): Dawson, Shane Francis (6488); Dransfield, Richard Jack (7330); Kiorgaard, Donald Norman Gregory (14678); McKinnis, David Leslie (17301); and Papadopoulos, John (21071).
[348]
Five were rejected because the signature of the voter was not witnessed as required by s 110(5)(a) of the Act. None of those rejected for this reason was challenged so need not be further considered.
Two were rejected because the declaration envelope containing the ballot paper was not signed by the voter. Neither of these was challenged by the applicant.
Two were rejected because the voters' ballot papers were returned outside the sealed declaration envelope. These were not challenged by the applicant.
One was returned to the ECQ beyond the deadline for receipt of postal ballots. This was not challenged.
One was an elector who was registered as an elector who was unable to sign her name due to physical incapacity. This was Romeyn, Koosje Elizabeth (23792). Mr Wiltshire conceded that it appeared that her ballot paper had been incorrectly rejected by the returning officer at scrutiny. This will be dealt with under ground 4(c).
One was rejected because the scanned image of her signature on her postal vote application was unreadable. This was Ferris, Norah Gurtrude (8488). Her vote will be dealt with under ground 4(e).
[349]
[161] The first preference votes are counted under s 119(5) and then, if necessary, preferences are distributed until one candidate has a majority of votes (s 119(6)-(14)).
[350]
[162] A total of 2,419,559 votes were cast for the whole of Queensland, an overall participation rate of 90.93 per cent.
[351]
[163] 28,840 votes were cast for the electoral district of Chatsworth. This is a participation rate of 92.87 per cent. Mr Kerslake said there was nothing remarkable about the participation rate in Chatsworth being slightly higher than the State average. Participation rates vary from electorate to electorate depending on a number of factors. For the 2009 State election, the lowest rate of participation in an electoral district was 85.76 per cent and the highest, 93.73 per cent.
[352]
[164] Of the 28,840 votes cast in Chatsworth, 28,333 were counted as formal votes and 507 were judged to be informal votes.
[353]
[165] The breakdown of the types of vote cast in Chatsworth were: 22,767 polling booth votes (78.94 per cent); 2,234 postal votes[14] (7.75 per cent); 1,229 pre-poll votes (4.26 per cent); 2,354 absent votes (8.16 per cent); 91 electoral visitor votes (0.34 per cent); and 157 declared institution votes (0.54 per cent). The breakdown of first preferences in the district of Chatsworth was as follows:
[354]
[166] Preferences were then distributed. After preferences were distributed, Mr Kilburn had 13,561 votes and Ms Caltabiano had 13,487 votes.
[355]
[167] A recount may be conducted under s 121 of the Act. Such a recount was conducted for the electoral district of Chatsworth. The returning officer notified the ECQ that Steven Kilburn had been elected for the electoral district of Chatsworth. The declaration of the poll was on 3 April 2009.
[356]
[168] Certain miscellaneous provisions are also relevant to the matters within these reasons for decision.
[357]
[169] Section 125(4) of the Act provides that as soon as practicable after an election, the ECQ must send a notice to each person who made a declaration vote under s 106(1)(c) whose ballot paper was not accepted for counting under s 116(1), advising the person why the ballot paper was not accepted for counting.
[358]
[170] A failure to vote without a valid and sufficient excuse is an offence pursuant to s 164(1)(a) of the Act. A valid and sufficient excuse is not limited to, but includes, where an elector believes it to be part of the elector's religious duty not to vote. As soon as practicable after a general election, the ECQ may send a notice pursuant to s 125(1) of the Act to each elector who appears to have failed to vote at the election.
[359]
[171] Section 178 deals with how things are to be given to the ECQ. It provides that a claim, return, form, notice, application, nomination or other document or thing that is required or permitted by the Act to be given to the ECQ is to be given to the ECQ by leaving it at, or sending it by post or facsimile or in a similar way, to the ECQ's office.
[360]
[172] As I have said, s 110(1) of the Act provides that the application for a postal vote must be signed by the elector. Section 179 extends the way in which a "thing" may be signed as follows:
[361]
For the purposes of this Act, a person signs a thing -
[362]
(a) by signing the person's name in writing on the thing; or
[363]
(b) if the person is unable to sign as mentioned in paragraph (a) - by making the person's mark on the thing as a signature before another person who signs the thing as witness; or
[364]
(c) if the person is unable to sign as mentioned in paragraph (a) or make a mark as mentioned in paragraph (b) - by having another person (the other person) sign the other person's name in writing, and clearly print the other person's name and address and the words 'signed for the elector', on the thing."
[365]
[173] The Powers of Attorney Act 1998 (Qld) ("the POA Act"), however, provides that an attorney may "execute an instrument with the attorney's own signature" and "do any other thing in the attorney's own name",[15] but only "in a way showing that the attorney executes it as attorney for the principal".[16] The question then is whether s 179 lists exhaustively the ways things may be signed under the Act or whether an attorney may sign for a principal pursuant to the procedure under the POA Act.
[366]
[174] Sections 110 and 179 of the Act do not specifically exclude the operation of the POA Act. However, it appears that there a number of reasons why the procedures for signing under the Act should prevail over the POA Act. Voting is a "special personal matter" under sch 3 of the POA Act which may not be exercised by an attorney or guardian on behalf of another person. The franchise is too personal to be able to be exercised by another on behalf of a principal. An attorney or another person may assist the person as provided in s 103 and s 110(5)(b)-(d) and (6) of the Act. However, the other person may not assist the person to sign the appropriate declaration on the declaration envelope as required by s 110(5)(a). Accordingly, the only ways in which the declaration envelope may be signed are the ways set out in s 179 of the Act.
[367]
[175] A further question is whether a request for a postal vote under s 110(1) of the Act must also be signed in accordance with the requirements of s 179 of the Act. As set out earlier, s 179 relates to the ways in which a person signs "a thing" for the purposes of the Act. A "thing" is not defined in the Act, but s 178 makes it clear that it includes an application for a postal vote.
[368]
[176] It is apparent, therefore, that the Act contemplates that a "thing" includes an "application". Section 110(1) does not specifically use the term "application". Rather, it provides that an elector "may, by writing signed by the elector ... request a ballot paper and declaration envelope". It is not necessary to characterise the precise nature of the document required to be signed under s 110(1). It suffices to say that it is at least within the category of "other document or thing" to which the signing requirements of s 179 apply.
[369]
[177] It is true that the request for a postal vote under s 110(1) is not as personal a matter as voting itself, and therefore it may be argued that the POA Act should prevail over the stringent provisions of s 179. Nonetheless, I would not accept that argument in light of the scheme of the Act. Section 116(2)(c) of the Act provides that a ballot paper must be accepted for counting only if the person examining the declaration envelope is satisfied that the signature on the envelope corresponds with that in the request for a postal vote. That can only be done if the signature on the application matches the signature on the declaration envelope. For this additional reason, an elector may only sign a request for a postal vote in accordance with the requirements of s 179. Indeed, the application form produced by the ECQ (although not the application forms produced by the LNP or the Australian Labor Party has clearly printed and underlined "NB A person granted Power of Attorney CANNOT sign this application in that capacity" where the applicant is to sign.
[370]
[178] Also found within pt 10 of the Act dealing with miscellaneous provisions is s 180 which provides for the review of certain decisions made under the Act by the Magistrates, District or the Supreme Court, rather than by the Court of Disputed Returns. The decisions of which a review can be sought in the Magistrates Court include a decision under s 65 not to amend an electoral roll to give effect to a notice by a person. This would include a notice of change of address for enrolment under s 65(3) of the Act.
[371]
[179] Section 128 of the Act provides that the election of a person may only be disputed by an application to the Court of Disputed Returns under div 2 of pt 8 of the Act or by an appeal to the Court of Appeal on a question of law. The Supreme Court is constituted as the Court of Disputed Returns pursuant to s 127 of the Act.
[372]
[180] Section 134 provides that the Court of Disputed Returns may conduct hearings and other proceedings in relation to the application. The Court is not bound by "technicalities, legal forms or rules of evidence" (s 134(2)). A number of affidavits filed by the applicant did not comply with the requirements of pt 7 of ch 11 of the Uniform Civil Procedure Rules 1999 (Qld) but were nevertheless accepted as evidence.
[373]
[181] The Court must ensure that, as far as reasonably practicable, the secrecy of the ballot is maintained (s 136(4).
[374]
[182] The Court has power under s 136(1) to make any order or exercise any power in relation to the application that the Court considers just and equitable. The orders the Court may make under s 136(2) include:
[375]
"(a) an order to the effect that the person elected is taken not to have been elected;
[376]
(b) an order to the effect that a new election must be held;
[377]
(c) an order to the effect that a candidate other than the one elected is taken instead to have been elected; and
[378]
(d) an order to dismiss or uphold the application in whole or in part."
[379]
[183] The Court of Disputed Returns will exercise the powers given to it in s 136(2)(a)-(c) where it is "just and equitable" to do so. As Ambrose J said in Tanti v Davies (No 3),[17] the Court would:
[380]
"so construe s 136(1) as to require as a prerequisite for the exercise of 'any power in relation to the petition that the Court considers just and equitable' the determination of a fact or facts going to the validity of the election considered in the light of the statutory requirements to be found in the Act. If established such facts need to be considered in the light of all the circumstances to determine whether any invalidity leads to the conclusion, to use the words of Griffith CJ in Bridge v Bowen:[18]
[381]
'That there is good ground for believing that the formal result does not represent the free and deliberate choice of the competent electors.'
[382]
[... T]here is no discretion given under s 136(1) to order a new election unless the facts show that the election was rendered invalid by virtue of contravention of a statutory requirement of the Act."
[383]
[184] In Carroll v Electoral Commission of Queensland (No 1),[19] Mackenzie J recorded that it was common ground between the parties that he should adopt the same interpretation. His Honour held with regard to that:
[384]
"Where the foundation of the case is allegations that practices which infringe against provisions of the Electoral Act have been engaged in, the question is not merely whether there is satisfactory proof that that has occurred. It is whether, having regard to what has been proved, it is sufficiently established that such conduct resulted in a situation where there is good ground for believing the result recorded did not reflect the actual preference of a majority of electors. Since this involves a quantitative element, a finding that a contravention or contraventions of the Act are sufficiently proved may not necessarily lead to a finding that the election should be set aside. The extent of the likely effect of any such contraventions on the result is important. This is a matter of judgment which must be performed in the particular factual context of each case."
[385]
[185] It was submitted by the applicant, and not disputed by the other parties, that if it can be demonstrated that the number of instances of casting invalid votes and the denial of the opportunity to cast valid votes exceeded the winning margin, it could not be said that such errors were unlikely to have affected the result.[20] That is the approach I intend to take in this case.
[386]
[186] It is the approach mandated by s 137(1A)(a) of the Act, which was inserted by s 15 of the Electoral Amendment Act 1997 (Qld). Section 137(1A)(a) provides:
[387]
"(1A) Also, the court must not make an order under section 136(2) (other than an order to dismiss the application) -
[388]
(a) because of an absence or error of, or omission by, any member of the commission's staff that appears unlikely to have had the effect that the person elected would not have been elected [...]"[21]
[389]
[187] The applicant also submitted that additionally there may be other instances where the Court may order a new election where it is "just and equitable" to do so. That may be so if, for example, there was evidence of fraud or general corruption or intimidation that influenced the electoral process as a whole.[22] This is not such a case. This is a case where the applicant particularised individuals and some unnamed persons who, she said, were denied the opportunity to cast a valid vote by an error or omission by the ECQ or its staff. Each of those individual cases needs to be decided on its own merits. They do not, however, need to be decided in isolation from one another. As the applicant submitted, if there is evidence of error by the ECQ in one case, that may suggest error by the ECQ rather than by the elector in another case. The Court will therefore consider both direct evidence relating to each case and any circumstantial evidence of error or inadvertence arising from the circumstances of other cases.[23]
[390]
[188] The Act is silent as to onus of proof and the authorities have not necessarily spoken with one voice on the question.[24] However, the way in which the jurisdiction is enlivened points to where the onus lies. Section 130 of the Act sets out the requirements for an application to the Court of Disputed Returns. Section 130(2)(a) provides that the application must "set out the facts relied on to dispute the election". The election result is presumed to be valid unless the Court is persuaded to the contrary by proof of the facts set out in the application. As Ambrose J said in Tanti v Davies (No 3):
[391]
"Prima facie in the absence of any evidence to the contrary, one ought to assume the regularity of the electoral process." [25]
[392]
[189] In Blundell v Vardon,[26] Barton J, sitting as the Court of Disputed Returns, said:
[393]
"The position of a petitioner applying to the Court of Disputed returns may be thus described. It is on him to prove the allegations of the petition so far as they are not admitted."
[394]
[190] Blundell v Vardon was followed by Merkel J in Shaw v Wolf.[27] That case was a challenge to an election under the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) ("the ATSIC Act"). Clause 23 of sch 4 of the ATSIC Act required that the Court be guided by the substantial merits and good conscience of each case.[28] Like under s 134(2) of the Act, the Court was not to have regard to legal forms or technicalities or whether the evidence before it was in accordance with the law of evidence. The parties were in dispute about the onus of proof of the allegation that 11 respondents were not Aboriginal persons and therefore not entitled to stand as a candidate for the Regional Council under the ATSIC Act.
[395]
[191] Merkel J first had regard to sch 4 of the ATSIC Act, which at the time made provision first for the petitioners to set out in the petition the facts relied upon by them; secondly, for the respondents to the petition to be parties; and thirdly, for the Court to try the petition, before holding:
[396]
"These provisions imply that the trial of the petition is to be conducted as an adversarial civil proceeding. Accordingly, I can see no reason to depart from the principle applicable to such proceedings, and stated in respect of the Court of Disputed Returns in Blundell, that the petitioners are to 'prove the allegations of the petition so far as they are not admitted'.
[397]
... The issue for the Court is whether, on the material before it, the petitioners have discharged the onus upon them to establish that any of the first 11 respondents is not an Aboriginal person. In determining that issue the Court is to comply with cl 23. I see no reason, however, why those requirements should relieve the petitioners from the usual requirement in adversarial proceedings that the person seeking relief from the Court must establish the case for relief in accordance with the ordinary standard of proof required of a party who bears the onus in civil litigation in Australia, that is, proof on the balance of probabilities."[29]
[398]
[192] Under the Act, the action is commenced by application; the application must set out the facts relied upon to dispute the election; the parties are the applicant and, if the ECQ is not the applicant, the ECQ is a respondent, as is the person who was declared elected for a particular electoral district if he or she elects to be a respondent. This structure is similar to that referred to by Merkel J with regard to the ATSIC Act and so admits of the same conclusion: that the onus of proof in such proceedings falls on the applicant.
[399]
[193] In Re Maryborough Election Petition,[30] Thomas J, sitting as the Court of Disputed Returns, held that the onus was on the petitioner to prove an allegation of personation.
[400]
[194] Accordingly, in an application made to the Court of Disputed Returns, the onus of proof lies on the applicant to prove the allegations made in the application on the balance of probabilities.
[401]
[195] There are certain restrictions on orders that may be made. For example. the Court must not make an order mentioned in s 136(2) because of a delay in complying with the requirements of pt 6, div 5, 6 or 7 (s 137(1)(b)). The relevant sections in pt 6 are s 102 to s 126. This is of significance in this case where the applicant sought to rely on what it described as delays by the ECQ in processing applications for postal votes. The applicant said that these delays were in breach of s 92, which is not in div 5, 6 or 7 of pt 6 of the Act. However, where such matters are specifically covered by those divisions, as the requests for postal votes are, then the prohibition in s 137(1)(b) must be given effect according to its terms.
[402]
[196] Additionally, the Court must not make an order under s 136(2), other than an order to dismiss the application, because, as I have already mentioned, of an absence or error of, or omission by, any member of the ECQ's staff that appears unlikely to have had the effect that the person elected would not have been elected (s 137(1A)(a)); or because incorrect information an elector gives to an issuing officer is written on a declaration envelope the elector signed (s 137(1A)(b)).
[403]
[197] The Court must not take into account evidence by any person that the person was not permitted to vote during voting hours in relation to a polling place, unless the Court is satisfied that, so far as the person was permitted to do so, the person did everything required by the Act to enable the person to vote (s 138(1)).
[404]
[198] The Court may inquire whether a person voting was enrolled on the electoral roll for the electoral district concerned and whether votes were correctly treated as formal or informal during the counting of votes (s 138(2)(a)). However, as earlier mentioned, the Court "must not inquire whether the electoral roll, or any copy used at the election, was in accordance with the Act" (s 138(2)(b)).
[405]
[199] Section 101(1)(c) of the Act, however, states that "persons whose names are not on the electoral roll for the district because of official error" are entitled to vote. The applicant at several points led evidence to the effect that an official error had been committed by the ECQ. In grounds 4(b) and (f), for example, the official error is alleged to have been a failure or failures to include a person on the electoral roll when that person should have been included on the electoral roll. That evidence was led without objection by either respondent.
[406]
[200] However, the second respondent, in his written submissions,[31] sought to invoke the prohibition contained in s 138(2)(b) to preclude the Court from inquiring into whether an official error was committed with the result that a person was not on the electoral roll. The second respondent cited Tanti v Davies (No 3) and Re Darlinghurst Petition[32] in support of that invocation. Mr Hinson SC, in his address,[33] referred to this passage in the second respondent's submissions and handed up a decision of the High Court in Re Berrill's Petition[34] that was said to deal with the corresponding provision in the Cth Act. Mr Hinson SC then submitted that ground 4(b):
[407]
"is caught, in part by [the] section 138 prohibition on looking at the state of the rolls but this ground specifically refers to 106(c) of the Act which alleges that names are not on the electoral roll due to official error".[35]
[408]
The argument was not further developed, and Mr Hinson SC went on to refer to the evidence led without objection and made both oral and written submissions that there was no official error. It is not clear from the course of argument whether that submission was in the alternative to, or whether it formed part of, Mr Hinson SC's apparent submission that the ground "is caught" by the s 138 prohibition.
[409]
[201] The applicant did not advert to this point at all in her written or oral submissions. No submissions were made by her about the impact of s 138(2)(b) on the capacity of the Court to consider whether electors who were not on the roll through official error should have had their declaration votes counted. She made no submissions either orally or in writing to counter the submissions of the respondents that the Court was precluded from undertaking this task because it would in effect breach the prohibition found in s 138(2)(b).
[410]
[202] If I hold that s 138(2)(b) applies, then I am simply prohibited from considering the merits of grounds 4(b) and (f). It is in this context that I must construe s 138(2)(b) and the scope of the prohibition contained in it.
[411]
[203] I begin by considering relevant High Court authority.
[412]
[204] In Perkins v Cusack,[36] Starke J, sitting as a single Judge in the Court of Disputed Returns, heard a petition challenging the election result of the electorate of Eden Monaro for the House of Representatives of the Commonwealth Parliament. The petitioner alleged, inter alia, that a large number of persons were enrolled as electors and voted at the election but were in fact not entitled to be on the electoral roll. It was suggested that these persons did not in fact live within the Eden Monaro electorate and therefore were not entitled to be on the roll for that electorate. Section 190 of the Cth Act, as it then stood, provided that:
[413]
"The Court shall inquire whether or not the petition is duly signed, and so far as Rolls and voting are concerned may inquire into the identity of persons, and whether their votes were improperly admitted or rejected, assuming the Roll to be correct, but the Court shall not inquire into the correctness of any Roll."[37]
[414]
"the electoral Rolls in force at the time of the election shall be conclusive evidence of the right of each person enrolled thereon to vote as an elector, unless he shows by his answers to the questions prescribed by s 115 that he is not entitled to vote."
[415]
[205] None of the impugned electors demonstrated that they were not entitled to vote by their answers to questions prescribed by s 115. The petitioner therefore sought to argue that the challenge was that the addresses given in the roll were not within the electorate, and that this did not involve a challenge to the correctness of the roll. Starke J dismissed this argument as follows:
[416]
"Assuming these persons to be rightly on the Roll - as I am bound to assume under sec. 190 - then their right to vote at the election is conclusively established, unless their answers to the questions prescribed by sec. 115 show that they are not entitled to vote. It was not suggested that anything in the answers of these persons showed that they were not entitled to vote. Consequently, in my opinion, the Roll is conclusive, and, as sec. 190 prohibits the Court from inquiring into its correctness, again I rejected the evidence."[38]
[417]
[206] In Re Berrill's Petition, the High Court, sitting as the Court of Disputed Returns, heard a petition which alleged that names of certain electors had been wrongly removed by electoral registrars from the electoral roll. Section 190 of the Cth Act was in the same terms as it had been when it fell for consideration by Starke J in Perkins v Cusack.
[418]
[207] Stephen J, with whom Gibbs and Mason JJ agreed, held that this section:
[419]
"clearly precludes the Court of Disputed Returns from entering upon any inquiry into the correctness of any electoral roll and it is exclusively upon the alleged incorrectness of such rolls in the State of South Australia that the present petition is founded. It follows that the Court has no jurisdiction to entertain the petition; the petition is misconceived and must be dismissed in whole ...
[420]
That this must be its fate is clear enough from the terms of the petition and from the petitioner's argument. ... The terms of s 190 are so clear as to require no elucidation by reference to authority, but if authority be needed it is not wanting."[39]
[421]
[208] His Honour then cited Re Darlinghurst Petition and In re Nash Election Petition.[40]
[422]
[209] Before I consider those two cases, it is necessary to have regard to three, more recent, authorities from the High Court. They are Muldowney v Australian Electoral Commission,[41] Re Brennan; ex parte Muldowney[42] and Snowdon v Dondas.[43]
[423]
[210] In Muldowney v Australian Electoral Commission, Brennan ACJ, sitting as a single Judge in the Court of Disputed Returns, was asked to decide what was meant by "qualified to vote" in s 355(c) of the Cth Act. His Honour there held that "qualified to vote" did not simply mean "entitled to be enrolled", as had been contended by the petitioner. This is because the electoral roll is "pivotal to the electoral system created by the [Cth] Act".[44] In his Honour's view, "[t]here is no undue hardship or anomaly created by insisting on enrolment as a qualification to vote". His Honour pointed out that there were provisions for administrative review that could be instituted by a person who alleged that he or she had been wrongfully removed or omitted from the electoral roll. Further, his Honour referred to provisions of the Cth Act which provide that a person may cast a provisional vote under s 235 of the Cth Act which may be counted at scrutiny if the Divisional Returning Officer is satisfied first, the person casting the vote "was, at the time of voting, entitled to be enrolled for the [electoral district]"; and secondly, that the person's omission from the electoral roll was "due to an error made by an officer or to a mistake of fact".[45] Brennan ACJ held that:
[424]
"if 'qualification to vote' were synonymous with qualification to be enrolled, the second condition would be unnecessary. The satisfaction of the second condition depends on the occurrence of an error in the procedure for enrolment which, had it not occurred, would have resulted in an entitlement to vote. Section 367(a) of the [Cth] Act accordingly draws a distinction between a person 'entitled' to vote and a person 'permitted' to vote."[46]
[425]
"[e]nrolment is not merely evidence of an elector's qualification to vote; enrolment is itself a qualification to vote. A qualification to be enrolled without enrolment falls short of a qualification to vote."[47]
[426]
[211] In Re Brennan; ex parte Muldowney,[48] the petitioner sought a writ of mandamus requiring Brennan ACJ to hear and determine claims for relief and a writ of certiorari quashing certain findings made by his Honour in Muldowney v Australian Electoral Commission. The petition was heard by Mason CJ sitting alone, who considered in passing what was meant by "qualified to vote" in s 355(c) of the Cth Act. His Honour also held that "qualified to vote" did not simply mean "entitled to be enrolled" because:
[427]
"[t]o construe the term 'qualified to vote' in the way contended for ... would, in a sense, require the Court to go behind the Electoral Roll and determine whether a person who is not on the Roll is nonetheless entitled to be on the Roll. This conflicts with the clear terms of s 361(1) and undermines the principles which support the separation of disputes about the validity of an election from disputes concerning the correctness of the Electoral Roll."[49]
[428]
[212] In Snowdon v Dondas, the Full Court of the High Court, sitting as the Court of Disputed Returns and constituted by Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ, delivered a joint judgment approving what was said by Stephen J in Re Berrill's Petition and what was said by Mason CJ in Re Brennan; ex parte Muldowney. However, the Court said that s 361(1) of the Cth Act (the Commonwealth equivalent of s 138(2)(b)) "does not of itself dispose of the matter".[50]
[429]
[213] I am bound to follow each of these decisions of the High Court. There are, however, distinctions between the Act and the Cth Act that must be considered to determine whether or not that would lead to a different interpretation of the reach of the statutory prohibition in the Act from that found in the Cth Act.
[430]
[214] The Cth Act, as it stood when each of these decisions was handed down, contained no exact equivalent of s 101(1)(c) of the Act. Under the Cth Act, a person was entitled to vote only if the person was on the roll. In Queensland, a person is an elector and entitled to vote if the person is on the roll or if the person is not on the roll because of official error. That is important, as, according to Maxwell J in Re Darlinghurst Petition:
[431]
"it is trite law that in construing particular words in a section of an Act regard must be had by the court, not only to the whole section, but to the statute as a whole. In some cases one particular section may not be affected by other sections of the Act, though this in the nature of things must be rare; in many, indeed most cases, the construction of one section must be affected by other sections in the Act. Moreover, in many cases the construction of a single section, or of expressions in a section, may be affected by the obligation to have regard to the scheme as a whole."[51]
[432]
[215] The scheme of the Cth Act provides that a person is entitled to vote only if that person is enrolled on the electoral roll. Indeed, so much is said in each of Muldowney v Australian Electoral Commission and Re Brennan; ex parte Muldowney. Section 101(1)(c) of the Act, however, is in different terms.
[433]
[216] The terms of s 101 are clear and unambiguous. Persons who fall into the categories in sub-ss (b) and (c) are entitled to vote notwithstanding non-enrolment. Further, s 3 of the Act states that "elector" means "a person entitled to vote under this Act". It is not simply "a person who is enrolled under the Act".
[434]
[217] A person whose name is not on the electoral roll because of an official error under the Cth Act is permitted to vote. Such a person is entitled to vote under the Act in Queensland. However, in spite of this difference in wording, the effect is the same. Persons whose names are not on the roll will have their votes counted under the Act and under the Cth Act only if they are not on the roll, relevantly for these proceedings, because of official error.
[435]
[218] That is the effect of s 235(1)(a) of the Cth Act read together with cl 6(c) and cl 12 of sch 3 of the Cth Act. The Act sets out the entitlement to vote much more clearly than the Cth Act, in that the Act provides specifically for a direct entitlement to vote. But in the end the legislative provisions have similar effect. A person is nonetheless entitled to vote under the Cth Act, even if the Cth Act does not adopt the discourse of entitlement and instead provides for that effect in a more circuitous way. A person who has his or her name wrongfully removed from the roll has the right to have that decision administratively reviewed under the Cth Act as does a person under s 180 of the Act. Such a review is not conducted by the Court of Disputed Returns. Accordingly, there is no relevant basis upon which to distinguish the decisions of the High Court that I have discussed.
[436]
[219] There are three decisions of State Courts that are also relevant. They are Re Darlinghurst Petition, In re Nash Election Petition[52] and Tanti v Davies (No 3).
[437]
[220] Re Darlinghurst Petition was a decision of Maxwell J sitting as the Court of Disputed Returns in New South Wales. The petitioner challenged 1,063 votes as invalid on the ground that the persons concerned were not entitled to vote because they had been removed from the electoral roll at least three months prior to polling day. Section 20 of the Parliamentary Electorates and Elections Act 1912-1949 (NSW) ("the NSW Act") states that such a person who has been so removed is not entitled to vote. Counsel for the petitioner sought to tender evidence to the effect that the persons in fact lived outside the electorate in the relevant period. Counsel for the respondent, who was supported by counsel for the Electoral Commissioner, objected on the ground that this was a challenge to the correctness of the roll and thus was prohibited by s 163 of the NSW Act. That section relevantly stated: "assuming the roll to be correct, but the court shall not inquire into the correctness of any roll". Maxwell J held that there was no relevant distinction between this case and Perkins v Cusack but added:
[438]
"it is true enough to say, as was said in Perkins' case, that the attack made is, in a sense, directed to the right to vote rather than to the correctness of the roll. I think the answer is that to allow the evidence would mean that the Court would not be 'assuming the roll to be correct' and, as well, would be inquiring 'into the correctness' of the roll. Section 163 controls the powers of the court in two ways; the earlier expression imposes an obligation, namely, to assume the roll to be correct; the latter expression raises a prohibition against inquiring 'into the correctness of any roll'. Each expression separately requires, certainly both together require, that the evidence should be rejected."[53]
[439]
[221] Maxwell J in Re Darlinghurst Petition compared the NSW and Cth Acts, but ultimately could not find any relevant distinction.
[440]
[222] It remains for me to consider two decisions of single Judges of this Court. They are In re Nash Election Petition and Tanti v Davies (No 3).
[441]
[223] In re Nash Election Petition was a decision of Mansfield SPJ sitting as the Elections Tribunal. His Honour there held that an official error had been committed by the Principal Electoral Officer in wrongly omitting electors' names from the roll, which had the effect of disenfranchising them. However, his Honour held that s 101 of the Elections Acts 1915-1948 (Qld):
[442]
"does not entitle me to inquire into the correctness or otherwise of the compilation of the rolls used for this election, but only into the conduct of the election itself, the voters being those persons whose names are on the 'existing' rolls. If a person's name is not on such a roll, he has no right to vote except in cases to which s 35A applies."[54]
[443]
"(1) Notwithstanding anything contained in this Act, when any person who is entitled to be enrolled on the roll for a district claims to vote at an election, and his name has been omitted or erased from the certified roll of the previous general election, or from any subsequent quarterly or supplementary roll, or from the certified roll ... for the election in respect of which the person claims to vote under this section, owing to an error of the Principal Electoral Officer or officer of his Department or other error, on in consequence of mistaken identity or otherwise, and through no fault of the person himself such person may, subject to this Act and the regulations, be permitted to vote if -
[444]
(a) He sent or delivered to the Principal Electoral Officer or electoral registrar a duly completed claim for enrolment or transfer or enrolment ... in respect of the district ...;
[445]
(b) His name was not, to the best of his knowledge, removed from the roll owing to objection or transfer or disqualification, and he had from the time of his enrolment for the district to the date of the issue for the writ for the election continuously retained his right to enrolment for that district,
[446]
and makes a declaration in the prescribed form [...].
[447]
(6) The provisions of this section shall extend and apply to any person, whether the name of such person appears on any list of erasures in an electoral roll or not."
[448]
[225] The electors in question had been on the electoral roll for the electoral district of Gympie. However, that electoral district was abolished and a new electoral district called Nash was proclaimed on 8 December 1949. Mansfield SPJ held that s 35A could not be invoked in that case because the word "district" had to be given the meaning attributed to it by s 4, that is, an electoral district appointed by law to return a member of the Legislative Assembly.[55] As the electoral district of Nash did not exist at the previous election, there was no roll corresponding to that district from which an omission or erasure could have been made under s 35A(1). In any case, the electors impugned had not sent the requisite enrolment form required under s 35A(1).[56] Accordingly, Mansfield SPJ held that s 35A could not be invoked in that case.
[449]
[226] At no point did his Honour specifically express a view on whether s 35A could be invoked in a manner that did not offend the prohibition in s 101.
[450]
[227] Mansfield SPJ also considered the operation of s 35 of the Elections Acts 1915-1948 (Qld). That section, relevantly, provides as follows:
[451]
"35. The existing roll, with all corrections and erasures thereof or therefrom made pursuant to this Act, shall be the roll of electors entitled to vote in the district at all elections and shall, except as by this section is provided, be conclusive evidence of the title of every person therein named to vote:
[452]
(e) When any person claims a vote at an election and it is found that, in consequence of mistaken identity and through no fault of himself, his name has been erased from the roll for that district, such person, upon making a statutory declaration that he is the person whose name has been wrongly erased, shall be permitted to vote;
[453]
(f) Notwithstanding anything implied by the expression 'conclusive evidence' or anything contained in this or any other enactment, the vote of any person whose name appears to have been placed upon the roll for a district as the direct or indirect result of any false statement made by such person in any claim or other proceeding precedent to enrolment may be disallowed by the Elections Tribunal."
[454]
[228] It can be seen, therefore, that, s 35(e) is, after s 35A, the nearest equivalent to s 101(1)(c) of the present Act. Mansfield SJA hinted at the question with which I am presently concerned, but ultimately did not find it necessary to address it directly:
[455]
"There are however certain provisos to s 35 which, in the special circumstances mentioned therein, may also affect this conclusive presumption. These provisos do not cover any of the cases before this Tribunal."[57]
[456]
[229] The Full Court dismissed the appeal without considering the present question.[58]
[457]
[230] In Tanti v Davies (No 3), the applicant was unable to rely on an undoubted error by the ECQ in removing an elector from the roll when the ECQ wrongly believed that he had died.[59] Ambrose J said:
[458]
"while there was undoubtedly an error on the part of the Commission in the maintenance of correct details on the electoral roll relating to this elector which in effect deprived him of a vote that is not an error which may be established except by inferring that the roll was not kept in accordance with the Act."[60]
[459]
[231] I respectfully agree with Ambrose J on this point. The inquiry required by s 101(1)(c) may be characterised as an inquiry into whether an official error has been made that had the effect of depriving a person from casting a vote to which he or she was entitled. However, such an inquiry would lead inexorably to the inquiry as to whether or not the electoral roll was kept in accordance with the Act. Such an inquiry is expressly prohibited by s 138(2)(b) of the Act.
[460]
[232] In case I am wrong, I will proceed, in grounds 4(b) and (f), to consider whether an official error has been committed that has denied a person a vote to which he or she was entitled, but in spite of any conclusion I reach I will be bound to observe the prohibition contained in s 138(2)(b) of the Act.
[461]
[233] I shall consider each of the grounds in turn in order to determine the extent to which persons who were entitled to vote were precluded from voting and the extent to which persons who were not entitled to vote did and whether or not votes that should have been declared formal or informal were not. I will then examine whether such contraventions were likely to have an effect on the result.
[462]
[234] It will be convenient here to set out the first two grounds again:
[463]
Ground 1: That certain electors in the electoral district of Chatsworth voted or may have voted more than once in contravention of s 101(2)(a) of the Act.
[464]
Ground 2: That certain persons obtained voting ballot papers for the electoral district of Chatsworth and voted in the name of other persons who were on the Roll of the electorate of Chatsworth with the effect that more than one vote was recorded at the election for those electors in contravention of s 101(2)(a) of the Act.
[465]
[235] The applicant provided as particulars of grounds 1 and 2 a list of the names of 30 electors for the electoral district of Chatsworth for which the records of the ECQ show that the elector voted more than once.
[466]
[236] It will be convenient to deal with grounds 1 and 2 together with respect to each of those electors.
[467]
[237] Each elector is noted by his or her name and address, with the elector's identifying number on the electoral roll for Chatsworth for the 2009 State election in brackets.
[468]
[238] Mr Wiltshire gave evidence that in the 2009 State election, of the 31,053 electors enrolled in Chatsworth, 30 of them were identified by the scanning process as having been marked off on more than one certified list or a certified list and electronic mark. Wherever possible, ECQ staff contacted these persons. In each instance where they were able to be contacted, an interview was conducted and, where possible, a standard questionnaire was completed. I will now address each of these 30 electors in turn.
[469]
1. Bastiaans, Kathleen Margaret (1377) - 11 Abbeyfeale Street, Tingalpa
[470]
[239] ECQ records show that Kathleen Bastiaans is marked off as having voted at a polling booth in Chatsworth on polling day and is also shown as having voted as an absent voter. Ms Bastiaans was interviewed by staff of the ECQ and asserted that she had only voted once on polling day at the Tingalpa South booth and did not vote as an absent voter.
[471]
[240] The ECQ's records show that an absent vote for the electorate of Chatsworth was issued to Lexie Jones who was enrolled for the address of 17 Risley Street, Carina at the Algester booth in the electorate of Algester on polling day. A copy of Ms Jones' declaration envelope identifies her roll number incorrectly as 001377, which was Ms Bastiaans' roll number. Ms Jones' correct roll number was 0013772. At scrutiny, staff at the returning officer's office marked off Ms Bastiaans' name in error on the electoral roll in lieu of the name of Ms Jones. It is apparent that this was a clerical error and that Ms Bastiaans voted only once. As was conceded by the applicant, there was no breach of s 101(2)(a) of the Act, which provides that a person is not entitled to vote more than once at the same election for an electoral district.
[472]
2. Batch, Patrick (1381) - 468 Tilley Road, Gumdale
[473]
[241] Patrick Batch's name was marked off on two different rolls at the Gumdale booth. Mr Batch was interviewed by ECQ staff and asserted that he had voted only once on polling day at the Gumdale booth. An interview was also conducted with Patrick Gerard Batch who resides at the same address as Patrick Batch. In his statement, Patrick Gerard Batch asserted that he had voted at the Gumdale booth on polling day. According to ECQ records, Patrick Gerard Batch is shown as not having voted at the election. It appears that this is a case where father and son have both been marked off as voting in the name of Patrick Batch and there was no double voting or personation. As was conceded by the applicant, there was no breach of s 101(2)(a) of the Act.
[242] ECQ records show that Gail Bradley voted as an absent voter but that her name was also marked off a roll at the Carina booth. Ms Bradley was interviewed by ECQ staff where she asserted that she had voted only once as an absent voter. The declaration envelope shows that Gail Bradley did in fact vote as an absent voter.
[476]
[243] An interview was also conducted with Garry James Bradley who resides at the same address as Gail Bradley. He asserted that he had voted on polling day at the Carina booth. According to ECQ records, Garry James Bradley is shown as not having voted at the election. It appears that Gail Bradley's name was marked off a roll at the Carina booth by mistake and that there was no double voting or personation. As was conceded by the applicant, there was no breach of s 101(2)(a) of the Act.
[477]
4. Byrnes, Kimberley Lorraine (3548) - 12 Joy Place, Wakerley
[478]
[244] Kimberley Byrnes was interviewed by staff by the ECQ and asserted that she had voted only once on polling day at the Gumdale booth. Her name was marked off twice on rolls at the Gumdale booth.
[479]
[245] An interview was also conducted with Gilbert William Butler who resides at 89 Gordon Crescent, Wakerley. In his statement Mr Butler asserts that he voted at the Gumdale booth on polling day. According to ECQ records, Mr Butler is shown as not having voted at the election. His details on the certified list are on the same row in the column adjacent to Ms Byrne's details. It seems apparent that her name was marked off twice by mistake and there was no double voting or personation. I am satisfied that there was no breach of s 101(2)(a) of the Act.
[246] Michelle Crisp's name was marked off twice on different rolls at the Tingalpa South booth. Ms Crisp forwarded a completed statement to the ECQ asserting that she had voted only once on polling day. An interview was conducted with Michael Steven Crisp who resides at the same address. He asserted that he had voted at the Tingalpa South booth on polling day. According to ECQ records, he is shown as not having voted at the election. It appears that Michelle Crisp's name was marked off twice instead of Michael Crisp's name being marked off when he voted. It does not appear that there was double voting or personation in this case. I am satisfied that there was no breach of s 101(2)(a) of the Act.
[247] Tania Cristina's name has been marked off a roll at the Belmont booth and a roll at the Gumdale booth. Ms Cristina was interviewed by ECQ staff and asserted that she had voted only once on polling day at the Gumdale booth. An interview was also conducted with Mr Salvatore Cristina who resides at the same address. He asserted that he had voted at the Belmont booth on polling day. According to ECQ records, he is shown as not having voted at the election. This falls in a similar category to the others; that is, where an elector's name has been marked off twice in error. It is not a case of double voting or personation. As was conceded by the applicant, there was no breach of s 101(2)(a) of the Act.
[484]
7. Darby, Cecily Faith (6247) - 53 Williams Street, Wakerley
[485]
[248] Ms Darby's name was marked off twice on different rolls at the Gumdale booth. Ms Darby was interviewed by ECQ staff and asserted that she had voted only once at the 2009 State election by attending in person at the Gumdale booth on polling day. She advised an ECQ staff member that she had voted with her parents and sister. The ECQ has not been able to identify and locate another elector who may have voted at the Gumdale booth on polling day and had Ms Darby's name marked off in lieu of that elector's own name.
[486]
[249] Mr Wiltshire, on behalf of the ECQ, asserted that based on her statement that she had voted at the same time as her parents and sister and voted only once, it is very likely that an error was made by an electoral official at the Gumdale booth.
[487]
[250] Also living at the Williams Street address are Joy Darby and Russell Phillip Darby. The next voter on the roll, Julian John Darch, is shown as not having voted and it seems likely that Ms Darby's name was marked off twice by mistake. I am not satisfied that this is a case of double voting or personation. I am not satisfied that there was any breach of s 101(2)(a) of the Act.
[488]
8. Fell, Lindsay Scott (8374) - 66 Cadogan Street, Carindale
[489]
[251] Mr Fell's name was marked off twice at the Carina booth. Mr Fell was interviewed by ECQ staff and asserted that he had voted only once on polling day at the Carina booth where he is marked off the roll twice. An interview was also conducted with David John Fell who resides at the same address. He asserted that he had voted at the Carina booth on polling day and yet, according to ECQ records, he is shown as not having voted at the election. This is another example where a clerical error was made and the wrong name appears to have been marked off. It does not appear that Lindsay Fell voted twice or was personated. As was conceded by the applicant, there was no breach of s 101(2)(a) of the Act.
[252] Mitchell Fleming was interviewed by ECQ staff and asserted that he voted only once at polling day at the Gumdale booth. He is shown as having voted at Gumdale and as an absent voter. However, ECQ records show that Mr Fleming was not issued with an absent vote on polling day. ECQ records show that an absent vote was issued to Monica Petra Fleming who is enrolled at the same address as Mitchell Fleming. Her roll number was incorrectly identified as 8718 rather than 8719, which is her correct roll number. As a result, at scrutiny, staff at the returning officer's office marked off Mitchell Fleming's name in error on the electoral roll in lieu of the name of Monica Fleming. This is not a case of double voting or personation. As was conceded by the applicant, there was no breach of s 101(2)(a) of the Act.
[492]
10. Gale, Kristin Rae (9332) - 4 Carnoustie Place, Carindale
[493]
[253] Kristin Gale's name was marked off twice on rolls at the Belmont booth. An interview was conducted with her by ECQ staff and she asserted that she had voted only once at the 2009 State election by attending in person at the Belmont booth. She said that she had voted with her brother and that they were attended by different polling officials.
[494]
[254] The ECQ has not been able to identify and locate any other elector who may have voted at the Belmont booth on polling day and had Ms Gale's marked off in lieu of their own name. However, both her name and her brother's name have been marked off the same electoral roll. This means that it is likely that an error was made by an electoral official at the Belmont booth. As they attended different issuing officers at the booth, their names should not be marked off the same copy of the electoral roll. Again, this appears to be a clerical error rather than a case of double voting or personation. I am satisfied that there was no breach of s 101(2)(a) of the Act.
[255] ECQ records show that Felicja Gos voted by way of postal vote. When interviewed by ECQ staff she asserted that she had voted only once at the election that and that was by postal vote. An interview was also conducted by ECQ staff with Barbara Perlinski and her husband Jerzy-Michel Perlinski. Mr and Mrs Perlinski care for Ms Gos and live at the same address. Mrs Perlinski stated that she had voted at the Gumdale booth with her husband. According to ECQ records, Mrs Perlinski is shown as not having voted but Ms Gos is marked off as having voted at the Gumdale booth.
[497]
[256] Mrs Perlinski advised the ECQ staff member that she and her husband attended the Gumdale booth and presented at the same polling booth official. She said that when she presented to vote she advised the issuing officer that her great-aunt, Ms Gos, had completed a postal vote and would not be voting at the booth on polling day. However, Ms Gos and Mr Perlinski were marked off on the same certified list at the Gumdale booth. It is likely that the issuing officer marked off Ms Gos' name in error in lieu of Mrs Perlinski's name. I am satisfied that Mrs Perlinski did vote and the electoral official misheard what she said and in error marked Ms Gos' name off the electoral roll instead of Mrs Perlinski's name. This is not an example of double voting or personation. I am satisfied that there was no breach of s 101(2)(a) of the Act.
[498]
12. Hicks, Jo-Anne Mary (11948) - 15 Barbecue Street, Belmont
[499]
[257] The electoral roll shows Jo-Anne Hicks' name as having been marked off twice on different rolls at the Belmont booth. She was interviewed by ECQ staff and asserted that she had voted only once on polling day. An interview was also conducted with Paul Kenneth Hicks who resides at the same address. He asserted that he had voted at the Belmont booth on polling day. According to ECQ records, he is shown as not having voted at the election. It appears that a clerical error was made and Jo-Anne Hicks' name was marked off twice while Paul Hicks' name was not marked off. She neither voted twice nor was she personated. As was conceded by the applicant, there was no breach of s 101(2)(a) of the Act.
[258] Farouk Hijazi's name was marked off twice on rolls at the Carina Heights booth. He asserted in a statement to ECQ staff that he had voted only once at that booth. An interview was also conducted with Mr Fouad Hijazi who resides at the same address. He asserted that he had voted at the Carina Heights booth on polling day and yet ECQ records show him as not having voted. It appears that Mr Farouk Hijazi's name was marked off twice instead of marking off his name once and that of Mr Fouad Hijazi. This is a clerical error, easily made given the similarity of the names, and not a case of double voting or personation. As was conceded by the applicant, there was no breach of s 101(2)(a) of the Act.
[259] Karen Holdsworth's name is shown as having been marked off at the Camp Hill booth and the Gumdale booth. She was interviewed by ECQ staff and asserted that she had voted only once on polling day at the Gumdale booth. An interview was also conducted with Joanne Kaye Holdsworth who resides in the electorate and immediately precedes Karen Maree Holdsworth on the roll. Joanne Holdsworth is shown as not having voted but asserts that she voted at the Camp Hill booth on polling day. It appears that Karen Holdsworth's name was marked off at two different booths by mistake. This is not a case of double voting or personation. As was conceded by the applicant, there was no breach of s 101(2)(a) of the Act.
[504]
15. Hovey, Patricia Maria (12612) - 92 Brokenwood Circuit, Tingalpa
[505]
[260] Patricia Hovey's name is shown marked off on the roll at the Carina Heights booth and the Gumdale booth. In an interview with ECQ staff, she asserted that she had voted only once on polling day at the Gumdale booth. The ECQ staff also interviewed Samanda Hovey who lives in the electorate and whose name appears on the electoral roll directly under the name of Patricia Hovey. Samanda Hovey told ECQ staff during the interview that she had voted at the Carina Heights booth on polling day in spite of the fact that she is not shown as having voted. This is another example of a clerical error rather than double voting or personation. As was conceded by the applicant, there was no breach of s 101(2)(a) of the Act.
[261] Irene Iselin is shown as having voted both by a declared institution vote and postal vote. Ms Iselin is an elderly person who resides at AVEO Carindale, which was gazetted as a declared institution for mobile polling for the 2009 State election.
[508]
[262] An officer of the ECQ contacted AVEO Carindale and was advised that Ms Iselin's medical condition was such that she would not be able to recall if she had voted and if so, by what means. Hers is one of the applications for postal votes delivered to the ECQ by or on behalf of the LNP. She was issued with, and she returned, a postal vote. It appears that when issuing officers visited AVEO Carindale on 20 March 2009 for the purpose of taking votes from residents and patients, Ms Iselin voted again unaware that she had already applied for and been issued with a postal vote. It appears that Ms Iselin did vote twice. This was not picked up until after the election had taken place. I am satisfied that Irene Gertrude Iselin (13125) did vote twice in breach of s 101(2)(a) of the Act.
[509]
17. Itsikson, Elena (13136) - 147 Glenavon Street, Belmont
[510]
[263] Elena Itsikson is shown as having both an absent vote and as having voted at the Tingalpa South booth. Ms Itsikson was interviewed by ECQ staff and asserted that she had voted only once on polling day at the Tingalpa South booth.
[511]
[264] The ECQ's records show that she did not vote as an absent voter on polling day. The ECQ's records show that an absent vote was issued to Mr Christopher Piers Isted who was enrolled for the address of 12 Akala Street, Camp Hill at the Norman Park booth in the electorate of Bulimba on polling day. His declaration envelope incorrectly identifies his roll number as 13136, which is Ms Itsikson's roll number. His correct roll number was 13134. At scrutiny, staff at the returning officer's office marked off Ms Itsikson's name in error on the electoral roll in lieu of the name of Mr Isted. This is not a case of double voting or personation. As was conceded by the applicant, there was no breach of s 101(2)(a) of the Act.
[512]
18. Kinman, Juliann Joan (14668) - 1760 Mt Gravatt-Capalaba Road, Capalaba West
[513]
[265] Juliann Kinman's name was marked off the roll twice at the Gumdale booth. She was interviewed by ECQ staff and asserted that she had voted only once on polling day at the Gumdale booth. An interview was conducted with Donald G Kinman who resides at the same address and immediately precedes Ms Kinman on the roll. He asserted to ECQ staff that he had voted at the Gumdale booth on polling day, although he is shown as not having voted at the election. This was most likely a clerical error and not a case of double voting or personation. As was conceded by the applicant, there was no breach of s 101(2)(a) of the Act.
[266] Gloria Lewis is shown as having had both an electoral visitor vote and a postal vote. A staff member of the ECQ contacted Ms Lewis' carer regarding this matter. The carer advised that Ms Lewis could remember casting an electoral visitor vote but had no recollection of applying for a postal vote. ECQ records show that Ms Lewis applied for and was issued with a postal ballot, which she completed and returned to the ECQ. At some time subsequent to that, she made contact with the returning officer and made arrangements for an electoral visitor to visit her at her residence to take her vote. It appears that she was provided in error with both a postal vote and an electoral visitor vote for the 2009 State election and so voted twice. I am satisfied that Gloria Eileen Lewis did vote twice in breach of s 101(2)(a) of the Act.
[516]
20. McColl, Jonathan (16755) - 21 Mayfair Street, Carina
[517]
[267] Jonathan McColl's name was marked off twice on rolls at the Mayfield booth. He asserted when interviewed by ECQ staff that he had voted once only on polling day at the Mayfield booth. The ECQ staff also interviewed Callum McColl who lives at the same address and immediately precedes Jonathan McColl on the electoral roll. Callum McColl is shown as not having voted on polling day but he said that he had voted at the Mayfield booth on polling day. This appears to be just another clerical error and not a case of double voting or personation. As was conceded by the applicant, there was not a breach of s 101(2)(a) of the Act.
[268] Robin Macknish is shown as having his name marked off twice on rolls at the Carina Heights booth. He was interviewed and asserted that he had voted only once on polling day at the Carina Heights booth. The ECQ also interviewed David William Mackrell whose name appears on the electoral roll directly underneath that of Robin Macknish. He asserted that he had voted at the Carina Heights booth on polling day and yet his name was not marked off as having voted. This again appears to be a clerical error and not a case of double voting or personation. As was conceded by the applicant, I am satisfied that there was no breach of s 101(2)(a) of the Act.
[520]
22. Madigan, Charles Michael John (17612) - 11 Talaroo Street, Carindale
[521]
[269] Charles Madigan is shown as having voted at the Carina Heights booth and as having a postal vote. When interviewed by ECQ staff, he asserted that he had voted only once at the election by postal vote.
[522]
[270] The applicant filed an affidavit by Mr Madigan in which he deposed that he had voted only once by postal vote which he returned to the ECQ by post prior to polling day. The ECQ officers also interviewed Cassandra Gail Madigan who lives at Carina Heights and whose name immediately precedes Charles Madigan's name on the roll. She is shown in ECQ records as not having voted but in her statement she asserted that she had voted at the Carina Heights booth on polling day. This appears to have been a clerical error and not a case of double voting or personation. As was conceded by the applicant, there was no breach of s 101(2)(a) of the Act.
[523]
23. O'Shannessy, Francis Arnold (20799) - 9 McCorkell Street, Tingalpa
[524]
[271] Francis O'Shannessy's name has been marked off twice on rolls at the Tingalpa South booth. However, when interviewed by ECQ staff he asserted that he had voted only once at that booth. An interview was also conducted with Christopher John O'Shannessy who resides at the same address but whose name was not marked off as having voted. He told ECQ staff that he had voted on polling day at the Tingalpa South booth. It appears that Francis O'Shannessy's name has been marked off by mistake twice and that Christopher O'Shannessy's name has not been marked off. This is not a case of double voting or personation. As was conceded by the applicant, there was no breach of s 101(2)(a) of the Act.
[525]
24. Peardon, Matthew John (21468) - 72 McGahon Street, Carina Heights
[526]
[272] Matthew Peardon was marked off rolls at the Carina Heights booth twice on polling day but he asserted that he had voted only once at that booth. An interview was conducted with Malcolm John Peardon who resides at the same address but whose name was not marked off the roll on polling day. When interviewed, Malcolm Peardon told the ECQ that he had voted in person at that booth. It appears that this is another case of the wrong name being marked off by mistake and not a case of double voting or personation. As was conceded by the applicant, there was no breach of s 101(2)(a) of the Act.
[273] ECQ records show that Ciara Retford was marked off a roll at each of the Camp Hill and Tingalpa booths on polling day. When interviewed by ECQ staff, she asserted that she had voted only once on polling day and that that was at the Tingalpa booth. An interview was also conducted with Sian Danicka Retchless, whose enrolled address is 51 Akala Street, Camp Hill. Her name was not marked off a roll on polling day. Nevertheless, she asserted that she had voted at the Camp Hill booth on polling day. It appears that Ms Retford's name was marked off twice by mistake. Her name is similar to that of Ms Retchless and Ms Retchless appears immediately before Ms Retford on the electoral roll. This is not a case of double voting or personation. As was conceded by the applicant, there was no breach of s 101(2)(a) of the Act.
[274] ECQ records show Galliano Santarossa's name as having been marked off the rolls at the Tingalpa booth and at the Tingalpa South booth. He was interviewed by ECQ staff and asserted that he had voted only once on polling day and that that was at the Tingalpa South booth. An interview was conducted by ECQ staff with Allan Juico Santos who also resides at Tingalpa and whose name was not marked off the electoral roll. Mr Santos asserted that he had voted at the Tingalpa booth on polling day. It appears that Mr Santarossa's name was marked off twice by mistake. This is not a case of double voting or personation. I am satisfied there was no breach of s 101(2)(a) of the Act.
[531]
27. Sieters, Michael Patrick (25269) - 21 Anzac Road, Carina Heights
[532]
[275] Michael Sieters' name was marked off as having voted at both the Tingalpa South and the Whites Hill booths. He asserted when interviewed by ECQ staff that he had voted only once at the 2009 State election and that was by attending in person at the Whites Hill booth. He told ECQ staff that he had voted there with his wife.
[533]
[276] An interview was also conducted by ECQ staff with his wife, Maria Anne Sieters. She also said that she had voted once on polling day at the Whites Hill booth, which she attended with her husband. She said she was with her husband all day and that they did not enter another polling booth on polling day. There is no reason to disbelieve Mr or Mrs Sieters.
[534]
[277] An explanation may be that another person personated Mr Sieters but there is no evidence to suggest that that happened. As the ECQ says, it is likely that, having regard to the statements by Mr and Mrs Sieters that they had voted only once and at the same time at the Whites Hill booth, an error was made by an electoral official at the Tingalpa South by marking off the name of another elector who had voted at that booth on polling day. It should be noted that the electoral roll shows the names of many people who are not marked off as having voted. I am not satisfied that there was a breach of s 101(2)(a) of the Act.
[535]
28. Smith, Peter Harold (25808) - 15 Zahel Street, Carina
[536]
[278] Peter Harold Smith's name has been marked off the rolls at the Camp Hill booth and at the Carina booth. When interviewed by ECQ staff, Peter Harold Smith asserted that he had voted only once on polling day and that that was at the Carina booth.
[537]
[279] An interview was also conducted with Peter Daniel Smith whose name immediately precedes that of Peter Harold Smith on the electoral roll. Peter Daniel Smith told ECQ staff that he had voted at the Camp Hill booth on polling day in spite of the fact that he has not been marked off the roll. It is apparent that Peter Harold Smith's name was marked off twice by mistake and that Peter Harold Smith neither voted twice nor was he personated. As was conceded by the applicant, there was no breach of s 101(2)(a) of the Act.
[538]
29. Velthuis, Patricia Ann (28578) - 33 Ranch Street, Tingalpa
[539]
[280] Patricia Velthuis' name was marked off twice on different rolls on polling day: once at the Gumdale booth and once at the Tingalpa booth. She was interviewed by ECQ staff and asserted that she had voted only once on polling day and that that was at the Tingalpa booth. Her roll number is 28578.
[540]
[281] Nadine Marie Venamore's roll number is 28580. Ms Venamore resides at 49 Tall Trees Circuit, Wakerley. She was interviewed by ECQ staff and asserted that she had voted on polling day at the Gumdale booth. She was not, however, marked off the roll. It appears that Ms Velthuis' name was marked off twice by mistake. This is not a case of double voting or personation. I am satisfied that there was no breach of s 101(2)(a) of the Act.
[541]
30. Westcott, Ronald Norman (29564) - 36/12 Greendale Way, Carindale
[542]
[282] ECQ records show Ronald Westcott's name as having been marked off the roll at Belmont and as having cast an absent vote. The ECQ was not able to take a full statement from Mr Westcott as he is currently working in North Queensland. Despite that, an ECQ staff member had an initial discussion with him in which he said that he had voted only once at the election and that that was as an absent voter. The ECQ provided to the Court a copy of his declaration envelope which shows that he voted at the Miami High booth on polling day as an absent voter.
[543]
[283] The staff from ECQ interviewed Mr Westcott's son, Darrel Edward Westcott, who lives at the same address. Mr Darrel Westcott's name has not been marked off the roll. However, he asserted that he had voted on polling day at the Belmont booth. It appears that he did vote, as he attested, at the Belmont booth and the issuing officer marked off his father Ronald Westcott's name on the electoral roll by mistake in lieu of Darrel Westcott's name. This is not a case of double voting or personation. As was conceded by the applicant, there was no breach of s 101(2)(a) of the Act.
[544]
[284] With regard to ground 1, I am satisfied that two electors in the electoral district of Chatsworth, Irene Gertrude Iselin and Gloria Eileen Lewis, voted twice in contravention of s 101(2)(a) of the Act.
[545]
[285] With regard to ground 2, I am not satisfied that any persons obtained ballot papers for the electoral district of Chatsworth and voted in the name of other persons who were on the roll for the electorate of Chatsworth with the effect that more than one vote was recorded at the election for those electors in contravention of s 101(2)(a) of the Act.
[546]
[286] A number of clerical errors were made by issuing officers, but in an electorate of over 31,000 votes, this was a less than 0.1 per cent error rate. This is hardly indicative of some widespread problem.
[547]
That the ballot papers of certain persons who made declaration votes, in the form of ordinary postal votes, and failed to comply with the requirements of s 107(d) and s 110 and in particular s 110(5)(a) of the Act were counted in contravention of s 115 and s 116(1) and (2) of the Act.
[548]
[288] There are three electors in this category, each of whom I will address in turn.
[289] Maud Darby is noted on the electoral roll as having voted by postal vote, as is Margaret Mary Darby, who resides at the same address. Maud Darby was born in 1924, so is now 85, and Margaret Mary Darby was born in 1945, so may well be her daughter or other close relative.
[551]
[290] The applicant relies on the applications for postal and electoral visitor vote which was filled in by them. Both applied for a postal vote for the reason that they were "ill, in advanced pregnancy or disabled (or someone you are caring for is)". The application form (which is the one sent out by the ALP) has provision for two electors to fill in their names. Both have been signed in the same hand by "Mary Darby".
[552]
[291] As Maud Darby did not sign the application for a postal vote as required under s 110(1) (even when the extension to the way in which documents may be signed in s 179 is considered), the application for postal vote was invalid and Maud Darby should not have been issued with a ballot paper and declaration envelope. As it appears that she voted by postal vote, her vote must be considered not validly cast.
[292] Rebecca Lucas is noted on the electoral roll as having cast a postal vote. Ms Lucas used the application for a ballot paper available on the ECQ website. It is signed and her signature is witnessed. It could not be safely inferred that the signature on the application is not that of Ms Lucas, particularly as her signature has been witnessed. It states an address to which the ballot paper and declaration envelope is to be posted, delivered or sent as required by s 110(1A) and it is apparent that her voting materials were received in time. It would therefore appear that Ms Lucas was correctly issued with a ballot paper for a postal vote and that her ballot paper was validly counted.
[555]
3. Wise, Ronald Charles (30321) - 86 Arrol Street, Camp Hill
[556]
[293] Ronald Charles Wise and Doreen Mabel Wise, who both reside at 86 Arrol Street, Camp Hill, applied for postal votes in the form of application sent to them by the LNP. Mr and Mrs Wise's applications for postal votes were delivered to the ECQ by Mr Caltabiano or his employee on 3 March 2009.
[557]
[294] The reason given for the application for postal vote was a valid one. Mr Wise was said to be in hospital and Mrs Wise was caring for someone who was ill. They are an elderly couple, having been born in 1929 in the case of Mr Wise and 1931 in the case of Mrs Wise. Both applications had been signed by D Wise and I infer that they were both signed by Doreen Wise. This is a breach of the requirement in s 110(1) that the application be signed by the elector. Accordingly, Ronald Wise should not have been issued with a ballot paper and his vote should not have been counted.
[558]
[295] Two postal votes were issued, one to Ronald Wise and one to Maud Darby, that should not have been issued because the applicant did not personally sign the application for a postal vote.
[559]
[296] The fourth ground, that these persons who were entitled to vote in the electoral district of Chatsworth were prevented from voting or their votes were not counted, was particularised as eight subgrounds: 4(a)-(h).
[560]
Ground 4(a): non-receipt of declaration envelopes and ballot papers before polling day
[561]
Persons who had made a valid application for a declaration vote, in the form of an ordinary postal vote, pursuant to s 105(1) and (2) and 110(1) and (1A) of the Act, and whose applications were received not later than 6 pm on the Thursday before polling day, did not receive, or alternatively did not receive in time to vote before the end of voting hours on polling day, a ballot paper and declaration envelope, because the first respondent failed to post, deliver or send, or alternatively deliver or send, the ballot paper and declaration envelope to those persons, in contravention of s 110(2) of the Act.
[562]
[298] The applicant submits that the evidence has identified by name 44 electors who had applied for declaration votes but who did not receive their ballot papers and declaration envelopes in time to vote. The applicant submitted that 11 of the earliest requests by electors identified in ground 4(a), delivered to the ECQ on 3 March 2009, were not processed until 13 or 14 March 2009. That is true, but it is hardly surprising given the quantity of postal vote applications delivered on 3 March. It is not indicative of a failure to administer the election competently.
[563]
[299] I shall deal with each of the 44 named electors, as well as the unnamed electors referred to in this ground of the application, in turn.
[564]
1. Arndt, Elizabeth Anne Christina (754) - 59A Bernecker Street, Carina
[565]
[300] Elizabeth Arndt is shown on the consolidated roll as not having voted. She made an application for a postal vote which is dated 11 March 2009. It was in a form provided by the ECQ for applications. The applicant submitted that the request was received by ECQ on 12 March 2009. She relied for this submission on the evidence of Mr Caltabiano as to the dates on which he had delivered applications for postal votes and electoral visitor votes to the ECQ. However, he does not depose to having delivered any on 12 March 2009.
[566]
[301] Ms Arndt gave evidence by affidavit. She deposed that, as she is disabled, her carer brought her the postal vote application which she had filled out and given back to her carer on the same day to post. She said she was in hospital during March and came out of hospital on 17 March 2009. She said that no one came to take her vote while she was in hospital and that she did not receive a ballot paper at her home address. As a result, she did not vote in the election.
[567]
[302] Ms Arndt gave further evidence by telephone that she lives alone and that there was no one at her home while she was in hospital. Her mail was brought up to the hospital by her carers. Ms Arndt was of the opinion that they had brought up all of her mail.
[568]
[303] It appears that what happened in this case is that Ms Arndt's request for a postal vote was processed by the ECQ on 14 March 2009 and her ballot paper was printed and sent to her address. ECQ records show that her application was scanned on 12 March 2009 at 11.46am and the scan was assigned and processed on 14 March 2009 at 11.53am, whereupon the declaration envelope was sent to a print queue at the Chatsworth electorate. It was printed at the Chatsworth electorate at 12.45pm on 14 March 2009. It would have posted by Mr Ludwig in accordance with his usual procedure at 5 pm on 14 March and therefore received in the ordinary course of post on 15 March 2009.
[569]
[304] ECQ records show that the ballot paper was issued but that the completed ballot paper was not returned. Her evidence that she did not receive a ballot paper does not mean that the ballot paper was not sent to her. There are many reasons why mail received at an unattended letterbox may not be received by the intended recipient. It is more likely that the ballot paper was posted to Ms Arndt in accordance with the provisions of the Act and the reason why she did not receive it is related to her absence from her residence at the time the ballot paper was delivered in the ordinary course of post.
[570]
[305] I am not satisfied that there was any contravention of s 110(2) of the Act by the ECQ.
[571]
2. Blackwell, Brian (2071) - 541 D'Arcy Road, Carina
[572]
[306] Mr Blackwell is shown on the roll as not having voted in the 2009 State election. Mr Blackwell gave evidence by affidavit in these proceedings and then gave oral evidence by telephone. He applied for a postal vote on the basis that he would be "interstate, overseas or more than 8 kms from a polling booth" on a form provided to him by the LNP. The application for postal vote is dated 25 February 2009. He says in his affidavit that he returned it by mail on the same day on which it was received. Mr Caltabiano's affidavit shows that he delivered Mr Blackwell's application to the ECQ office on 3 March 2009.
[573]
[307] Mr Blackwell said he travelled overseas on 13 March, departing at approximately midnight. He arrived back in Australia on about 14 April 2009. He swore that he did not receive any ballot papers from the ECQ in the mail whether before his departure overseas or during the time he was away.
[574]
[308] ECQ records show that Brian Blackwell's application was scanned on 11 March 2009 at 5.30pm. The scan was assigned and processed on 13 March 2009 at 9.31am whereupon it was immediately sent to the print queue. The declaration envelope was printed on 13 March 2009 at 10.14am. It appears that in the ordinary course of post his ballot paper would not have been received before he left for overseas at midnight on 13 March. There was of course nothing in his application form to suggest that he was departing overseas on that date. In any event, delay by the ECQ in complying with s 110(2) is not a ground for making an order under s 136(2) because of s 137(1)(b) of the Act.
[575]
[309] Mr Blackwell said that the arrangements he had made with regard to his mail while he was away overseas were that his 19 year old and 16 year old children, who still lived at home, were to collect it. His children stacked it on a kitchen cupboard for him. Of course, it is not possible for Mr Blackwell to say whether or not any of the mail was not put there by his children. In those circumstances, given that the ECQ has records of having posted out the ballot paper in accordance with its responsibilities under the Act, I am not satisfied that there was a contravention of s 110(2) of the Act.
[576]
3. Bozoky, John Samuel (2550) - 204 Stanbrough Road, Gumdale
[577]
[310] John Bozoky is shown on the consolidated roll as not having voted. Mr Caltabiano's affidavit deposes that he or a staff member delivered to the ECQ a copy of an application for a postal vote from Mr and Mrs Bozoky on 11 March 2009.
[578]
[311] The application form is in the LNP form. Mr Bozoky's application appears to have been signed in a similar handwriting to the signature of Lynette Anne Bozoky who resides at the same address. Nevertheless it appears the application was scanned on 13 March 2009 at 3.36pm. The scan was assigned and processed and sent to the print queue on 16 March 2009 at 2.15pm. The declaration envelope was printed on 16 March 2009 at 6.25pm. It was sent to the address noted on the application, being the address to which Mr Bozoky asked for his postal vote to be sent: that is, 69 Bourbon Street, Hamilton Hill, Fremantle WA 6163. Mr Bozoky did not give evidence, but his wife did so. I shall deal with the matter of their votes under her name.
[579]
4. Bozoky, Lynette Anne (2551) - 204 Stanbrough Road, Gumdale
[580]
[312] Lynette Bozoky is shown on the electoral roll as not having voted. Her application for a postal vote was signed on 7 March 2009. She said she had lodged her postal vote application a few weeks before the election but did not receive it until 25 March 2009. She said she had tried unsuccessfully to register an absent vote and as a result she did not vote in the election.
[581]
[313] ECQ records show that Ms Bozoky's application was scanned on 13 March 2009 at 3.36pm. The scan was assigned and processed on 16 March 2009 at 2.16pm whereupon it was sent to the print queue in the Chatsworth electorate. The declaration envelope was printed at 6.13pm on 16 March 2009. In accordance with Mr Ludwig's usual practice, it was therefore posted at 9 am on 17 March 2009. Ms Bozoky did receive her ballot paper but not in time for her to vote. The ballot was posted in good time for it to be able to reach her but because of delays in the post, for which the ECQ is not responsible, she did not receive it in time. I am satisfied that there was no contravention of s 110(2) of the Act by the ECQ in the case of Lynette or John Bozoky.
[582]
5. Browning, Anne Evelyn (3055) - 363 London Road, Belmont
[583]
[314] Anne Browning deposed in an affidavit that she had filled in an application for a postal vote after the announcement of the 2009 State election. Her application for a postal vote was on the same form as that of Joseph Browning who also enrolled at the same address. The reason given was that she would be interstate, overseas or more than eight kilometres from a polling booth. In handwriting she added "overseas 12 March". The application for a postal vote was dated 26 February 2009. It appears from the lists exhibited to Mr Caltabiano's affidavit that he or Ms Montgomery delivered the Brownings' applications for postal votes to the ECQ on 3 March 2009.
[584]
[315] Mrs Browning said that she did not receive any ballot papers from the ECQ before her departure overseas on 12 March 2009.
[585]
[316] ECQ records show that the application was scanned on 13 March 2009 at 9.28am. The scan was assigned and processed at 9.32am on the same day and sent to the print queue. The envelope and ballot paper were printed on 13 March 2009 at 10.14am. In accordance with Mr Ludwig's usual practice, they would have been mailed at 5 pm on that day.
[586]
[317] In oral evidence, Mrs Browning said that she could not recall whether she sent the application for postal vote which she received through an LNP mail-out back to LNP campaign headquarters. She was still overseas on polling day and did not return until 26 March 2009. When she returned from overseas, she found the ballot papers in the mail that her daughter had been collecting.
[587]
[318] Section 110(2) does not require the ECQ to ensure that ballot papers are received by a particular date. Had Mrs Browning wished, she could have cast a pre-poll vote from 9 March 2009. The ECQ complied with the requirements imposed upon it under s 110(2) and I am satisfied that there was no contravention of the Act.
[588]
6. Browning, Joseph Christopher (3059) - 363 London Road, Belmont
[589]
[319] Mr Browning also deposed in an affidavit that he had filled in an application for postal vote but that he did not receive any ballot paper from the ECQ before his departure overseas on 12 March 2009. As in the case of Mrs Browning, the date on which he signed the application for postal vote was 26 February 2009. His application was scanned by the ECQ on 11 March 2009 at 5.20pm. The scan was assigned, processed and sent to the print queue at 9.30am on 13 March 2009. The declaration envelope was printed on 13 March 2009.
[590]
[320] His oral evidence was that he had returned the application to the address provided by the LNP rather than returning it to the ECQ himself. Like his wife, he returned from his overseas trip on 26 March 2009 after polling day and the ballot paper was among the mail that had been received while he was away. The ECQ posted Mr Browning a ballot paper in accordance with its responsibilities under the Act and I am not satisfied that there was a contravention of s 110(2) of the Act.
[591]
7. Burton, Carmel Jane (3393) - 18 Springall Place, Wakerley
[592]
[321] The lists provided by Mr Caltabiano show that he had delivered a postal vote application for Mr and Mrs Burton on 6 March 2009. Neither of them voted at the election. Mrs Burton did not give evidence; however, the Burtons' applications for postal votes have been exhibited by the ECQ. The applications show that a postal vote was requested when each of them ticked the box "you will be interstate, overseas or more than 8kms from a polling booth". Both Peter Burton and Carmel Burton dated their postal vote application 3 March 2009 and give the address where they were enrolled as 18 Springall Place, Wakerley and asked for the voting material to be sent to PO Box 538, Carina.
[593]
[322] ECQ records show that Carmel Burton's application was scanned on 14 March 2009 at 12.53pm. The scan was assigned and processed on the same date at 12.55pm, at which time it was also sent to the print queue. The declaration envelope was printed on the same day at 3.12pm.
[594]
[323] Mr Wiltshire's affidavit shows that Mrs Burton's vote was rejected at scrutiny because the declaration envelope was not signed. She was excused from voting on 31 March 2009 on the ground that her voting material arrived late. Delay by the ECQ in complying with s 110(2) is not a ground for making an order under s 136(2) because of s 137(1)(b) of the Act. It is not known when the Burtons left their address in the electoral district. However, it is irrelevant because a voter who does not sign the declaration envelope cannot have the vote counted because of s 110(5)(a) of the Act.
[595]
8. Burton, Peter Gereard (3406) - 18 Springall Place, Wakerley
[596]
[324] The situation with Peter Burton[61] is the same as the situation with Mrs Burton except that ECQ records show that his application was scanned on 12 March 2009 at 12.03pm. At 12.54pm on the same day, the scan was assigned, processed and sent to the print queue. The declaration envelope was printed at 3.17pm. It was rejected at scrutiny on 31 March 2009 at 2.43pm because it was not signed. The declaration vote was then deleted. He was excused from voting on 31 March on the ground that the postal vote was delivered late to him. Delay by the ECQ in complying with s 110(2) is not a ground for making an order under s 136(2) because of s 137(1)(b) of the Act. In any event, electors who do not sign the declaration envelope cannot have their votes counted so Mr Burton was not wrongfully denied a vote.
[597]
9. Carroll, David John (3938) - 22 Breadsell Street, Carindale
[598]
[325] David Carroll filled out an application for registration as a general postal voter as a person unable to sign due to physical incapacity. That application was dated 12 August 2002 and was supported by a certificate from a medical practitioner that Mr Carroll is a quadriplegic and totally physically incapacitated. It was signed by another person declaring that in making the application he was acting at the request of, and on behalf of, the elector. Mr Carroll is therefore a special postal voter under s 105(3) of the Act and was entitled to receive a ballot paper. His declaration envelope was processed and sent to the print queue on 10.11am on 3 March 2009 when the rolls closed and his declaration envelope was printed on 5 March 2009 at 8.11am.
[599]
[326] Although he swore in an affidavit that he did not receive his ballot paper he also swears that he recognises his signature on the application for postal vote. He has not signed it. The voter survey form filled out on his behalf at the request of the LNP asserts that he did receive his ballot paper by mail from the ECQ prior to 21 March. In those circumstances I am satisfied that the ECQ has complied with its obligation to send a ballot paper to Mr Carroll as a special postal voter.
[327] Satyajit Chatterjee deposed in an affidavit that he had filled out an application for a postal vote on 4 March 2009. The reason given was that he would be "interstate, overseas or more than 8kms from a polling booth". His application is on the same page of that of Swagata Chatterjee who lives at the same address and who did vote by postal vote. He said in his affidavit that he had posted his postal vote application on 4 March 2009. He said he had called the ECQ office regarding an early vote and was told there was no early voting. He left for his overseas trip "approximately on or after the 10th March 2009". He said that he had received his ballot paper from the ECQ while he was away overseas.
[602]
[328] The ECQ records show that his postal vote was sent on 14 March 2009. The more detailed records show that his application was scanned on 12 March 2009 at 12.03pm. The scan was assigned, processed and sent to the print queue at 12.52pm on 14 March 2009. The declaration envelope was printed on 14 March 2009 at 3.30pm.
[603]
[329] Mr Chatterjee gave evidence by telephone from Papua New Guinea. Unfortunately, he was at work and not allowed to ring out so counsel for the applicant telephoned him on a mobile telephone on speaker phone. When he was first called, he was busy at work and unable to take the call. He was called again later and was able to give some oral evidence.
[604]
[330] His ballot paper arrived after he left to go overseas on 10 March. He did not return home until about 28 March. He said he did not do anything with that ballot paper. He said his wife might have thrown it away.
[605]
[331] It appears that the telephone number he called for advice about early voting was probably that of the LNP rather than the ECQ because Mr Chatterjee said he then requested an application for a postal vote which he received from the LNP. He confirmed when cross-examined by Mr Rangiah SC on behalf of the second respondent that he was sent the application form for a postal vote by the person who told him that there was no early voting in the Queensland election. His application for a postal vote was sent to the ECQ by the LNP on 6 March 2009. The advice he was given was not necessarily wrong. Pre-poll voting did not start until 9 March 2009. Without knowing who was asked and precisely what that person was asked, it would be difficult to conclude that the advice he was given was wrong.
[606]
[332] Unfortunately the telephone connection faded out and Mr Rangiah SC was unable to continue his cross-examination. Mr Dunning SC on behalf of the applicant offered to try to get Mr Chatterjee on the phone again. Given the difficulties that had already been experienced, Mr Rangiah SC conceded that he had probably already asked enough.
[607]
[333] In light of all the evidence I am not satisfied that Mr Chatterjee was told by the ECQ that there was no early voting in Queensland. A postal vote was sent to him in accordance with his application and there was no breach by the ECQ of s 110(2) of the Act.
[334] Toby Coates swore an affidavit in which he exhibited his application for a postal vote. The application was signed on 15 March 2009 and the reason given was that he would be "working or travelling and unable to vote at a polling booth" and the address to which he asked the ECQ to send the postal vote was St John's College, College Road, UQ St Lucia 4067. He said he did not receive a ballot from the ECQ until after polling day.
[610]
[335] ECQ records show that the source of the application was the LNP. The application was scanned on 19 March 2009 at 4.16pm and the scan assigned and processed on the same date at 5.17pm when it was sent to the print queue. The declaration envelope was printed at 7.59pm on 19 March 2009.
[611]
[336] The ECQ records show that Mr Coates' vote was posted to him on 19 March 2009. It was rejected at scrutiny on 31 March 2009 at 5.49pm because the declaration envelope was not signed. The ECQ exhibited a copy of the declaration envelope and the declaration showing that it was neither signed nor witnessed.
[612]
[337] In oral evidence Mr Coates said that he had received the ballot paper on the Monday after polling day. He said his mother had phoned the ECQ near the end of the week before polling day and had told the ECQ that they had not received the postal vote. He said that she was told that if it was not received on time, "write on the front of the envelope 'did not receive in time, return to sender'."
[613]
[338] It is purely speculative to try to work out other ways that might have led to Mr Coates' postal vote being received by him. The statutory obligation on the ECQ is not to ensure its receipt. There does not appear to be any reason that Mr Coates could not have cast an absent vote.
[614]
[339] Mr Coates' vote was correctly rejected under s 114(1)(d) and (4) and (5) of the Act. It appears to have been processed by the ECQ on the day it was received and dealt with expeditiously by the ECQ. I am satisfied that there was no breach of s 110(2) of the Act.
[615]
12. Cochrane, Mark Alan* (4909) - 18 Wallington Street, Tingalpa
[616]
[340] Mark Cochrane swore an affidavit saying that he had filled out an application for a postal vote which he posted. He said he did not receive a postal vote and then attempted to vote at the pre-poll centre at the QUT Gardens Point campus. In para 4 of his affidavit he deposes:
[617]
"I did not receive this & then went to Pre Poll at QUT Gardens of which I was told that I was not on the electoral roll but, received a letter from the Electoral Commission to take on Election Day. The reason for this postal vote was due to having to be on Army Reserve exercises."
[618]
[341] He said he did not receive a ballot paper at all from the ECQ for the 2009 State election. ECQ records do not disclose any postal vote application being received by the ECQ from Mr Cochrane. The cross-examination of Mr Cochrane by Mr Hinson SC on behalf of the ECQ was instructive. Mr Cochrane said he had acquired the application for a postal vote from his platoon sergeant and filled it out with other members of the army reserve. He was at the Enoggera Army Barracks at the time. When asked about how he posted it, he admitted that he did not post it; rather, his platoon sergeant "would have posted it with the other 20 or so members". He was confident that his platoon sergeant had mailed it because "other members of the platoon did receive their votes". However, Mr Cochrane said that he could not recall whether the envelope he gave back to the platoon sergeant had been addressed by him or not.
[619]
[342] Mr Cochrane said that when he did not receive his postal voting material, he went to the pre-poll centre at QUT Gardens Point campus and was told that he was not on the electoral roll. He said a couple of days after that he received a letter from the ECQ saying how to vote and telling him his electoral roll number. He said that while he probably could have gone to the pre-poll centre again, the next day he was away with the army and it would have been quite hard for him to do so. He received the letter from the ECQ the day before he went away. It was of the standard type received by electors in Chatsworth and is Exhibit 8. On polling day, he was at the Greenbank military training area within Queensland. He said that while he was at Greenbank, he was in a "live fire field situation".
[620]
[343] Jeffrey Mark Cochrane, who is enrolled at the same address, swore an affidavit which was filed in these proceedings saying that he too had filled out an application for a postal vote. He received his ballot paper from the ECQ on time but received two lots of ballot papers. He disregarded one and posted the other to the ECQ in the correct timeframe. Jeffrey Mark Cochrane is shown on the electoral roll as having voted by postal vote. His electoral roll number is 4907. It would appear that on the basis of this evidence that Jeffrey Cochrane was sent not only his own postal ballot papers but also those that had been intended for Mark Alan Cochrane.
[621]
[344] ECQ records show that Jeffrey Cochrane did not vote in person because of "illness, disability or advanced pregnancy". His application was scanned on 11 March 2009 at 6.16pm and the scan assigned and processed and sent to the print queue on 13 March 2009 at 2.54pm. His declaration envelope is shown as having been printed twice: first on 13 March 2009 at 5.38pm and secondly on the same date at 5.45pm. This tends to support the view that two envelopes were addressed to Jeffrey Mark Cochrane instead of one being addressed to him and one to Mark Alan Cochrane at the same address.
[622]
[345] Mark Cochrane was also told that he was not entitled to vote when he tried to cast a vote at a pre-poll centre. I am satisfied that he was denied a vote in contravention of s 109(2) and s 110(2) of the Act.
[623]
13. Coleman, Joan Alice (4988) - 34/2 Ford Court, Carindale
[624]
[346] Joan Coleman swore an affidavit in which she said that after the announcement of the 2009 State election, she filled out an application for a postal vote which she posted in February. She said, however, that she did not receive a ballot paper from the ECQ for the 2009 State election. The ECQ records show that no postal vote application was received by the ECQ.
[625]
[347] In her oral evidence, Mrs Coleman said that she had received the application for postal vote from the LNP in the mail and posted it back to the address on the envelope which was, as Mr Caltabiano's evidence showed, the campaign office for the LNP in Chatsworth. Her name does not appear on the list of applications for postal votes delivered by the LNP to the ECQ. If she had posted it to the LNP campaign office, it must have gone astray in the mail or was otherwise misplaced before it was delivered to the ECQ. As her application for postal vote was never received by the ECQ, there was no contravention of the Act in not sending Ms Coleman postal ballot papers.
[626]
14. Cordwell, Keith Alexander (5458) - 15 Pinehurst Place, Carindale
[627]
[348] Mr Cordwell's application for a postal vote was apparently delivered by the LNP to the ECQ on 3 March 2009. ECQ records show Mr Cordwell had asked to be excused from voting by an application to the call centre on 2 March 2009 at 2.01pm. His excuse was recorded as having been accepted on 7 March 2009 at 9.24am. On 14 March 2009 at 8.12pm the ECQ recorded a change of vote type from excuse to postal vote because it had received the application for postal vote which was processed at that time and sent to the printer queue. ECQ records further show that his declaration envelope was printed at Chatsworth on 15 March 2009 at 11.43am. In accordance with Mr Ludwig's normal practice, it would have been posted on 15 March 2009 at 5 pm. However, there is nothing in the ECQ records to show that the postal ballot paper had been returned to it.
[628]
[349] Mr Caltabiano gave oral evidence about Mr Cordwell. He said:
[629]
"Well, I know for a fact that Keith Cordwell is absolutely on the database. He lives two houses away from me. He is a retired secondary school teacher and he is a very good friend. He has certainly been in that house for the best part of 15 years, never missed an election in his entire life, and is a very active supporter of the [political party]."[63]
[630]
[350] The applicant did not file any evidence from Mr Cordwell.[64] The trail of evidence ends with the ECQ's posting of the postal voting material to Mr Cordwell on 15 March 2009 at 5 pm. The postal voting material may not have reached Mr Cordwell. Alternatively, having reached Mr Cordwell, it was not returned to the ECQ. Either way, there has been no contravention by the ECQ of its obligation under s 110(2) of the Act as that obligation was satisfied by the ECQ's posting of the voting material on 15 March 2009.
[631]
15. Croucher, Daniel John (5875) - 82 Moss Road, Wakerley
[632]
[351] The applicant filed an affidavit by Daniel Croucher in which he said that after the announcement of the 2009 State election he had filled out an application for a postal vote. The application also contained an application for his wife, Janne Croucher. The form he used is the form provided by the ALP. The reason given was that they would be more than 8 kilometres from a polling booth.
[633]
[352] There was no problem in the way in which the form was filled out or signed. It is apparent that the signature of each is in a different hand. They asked for the ballot paper to be posted to their enrolment address. Janne Croucher is immediately after Daniel Croucher on the roll. Her electoral number is 5876. She is noted as having voted by postal vote but Mr Croucher is not noted as having voted.
[634]
[353] Mr Croucher said he had posted the application which contained both their names several weeks before the polling day but did not receive a ballot paper from the ECQ. ECQ records show that Mr Croucher's application was scanned on 11 March 2009 at 6.55pm. The scan was assigned and processed and the declaration envelope sent to the print queue at Chatsworth on 14 March 2009 at 9.09am. The declaration envelope was printed on 14 March 2009 at 8.22pm at Chatsworth. In accordance with Mr Ludwig's usual practice, the ballot paper in the declaration envelope would have been posted at 9 am on the following morning 15 March 2009.
[635]
[354] Mr Croucher's evidence was that his wife received her ballot paper on the Wednesday before the election, that is, 18 March 2009. Mr Croucher thought that his would arrive on the next day at the latest. When it did not arrive on the Thursday he rang the "electoral office" five times and received a recorded message saying that due to the unprecedented number of calls that were being received he should call back later. He tried again on the Friday but got the same response so there was nothing he thought he could do. His evidence is that his ballot paper did not arrive at all.
[636]
[355] Prior to his wife's receiving her ballot material, however, Mr Croucher received a letter from the ECQ of the standard type setting out his roll number and the various means by which he could vote, including by pre-poll vote. That letter is Exhibit 9.
[637]
[356] On polling day, the Crouchers were on the Whitsunday Islands at the Club Med Resort. Mr Croucher's evidence was given with some difficulty because he is somewhat hard of hearing. He said when he was being cross-examined by Mr Hinson SC on behalf of the ECQ that he left to go to the Whitsundays on the Monday after polling day.
[638]
[357] However, he had obviously misheard or misunderstood the question asked. He subsequently confirmed in cross-examination by Mr Rangiah SC that he and his wife took a flight that had been scheduled to leave Brisbane at 9 am on polling day. They then returned on the Monday after polling day. Accordingly, there was no time on polling day for them to get to a polling booth before leaving. There seems to be no reason, however, why he could not have cast a pre-poll vote. He said he had tried to confirm that by telephoning, but the letter which he received told him that he could do that. So there seems to have been no reason why he could not have done that notwithstanding that he could not reach the ECQ by telephone.
[639]
[358] I am satisfied from this evidence that a ballot paper for each of Mr and Mrs Croucher was posted to them. Hers was received in the ordinary course of mail but his was mislaid between posting by the ECQ and arrival at his address. There was no contravention of s 110(2) by the ECQ and Mr Croucher was not unlawfully denied a vote.
[640]
16. Driussi, Jonathan Mead (7365) - 9 Kenrick Close, Wakerley
[641]
[359] Jonathan Driussi deposed in an affidavit that he had filled out an application for postal vote in the form created by the ECQ which he signed on 16 March 2009. He said he faxed it to the ECQ before "going on travels". The reason he gave was "interstate, overseas or >8km from a polling booth". He said he did not receive a ballot paper from the ECQ until after polling day.
[642]
[360] ECQ records show that the application was created on the ECQ website on 16 March 2009 and faxed at 6.43pm. It was scanned at 6.52pm on the same day and assigned and processed at 10.41am on 17 March 2009 when it was sent to the print queue at Chatsworth. The declaration envelope was printed on 17 March 2009 at 12.11pm. In accordance with Mr Ludwig's usual procedure, it would have been posted at 5 pm on that day and sent to the address to which he had asked for it to be sent, which was his enrolled address.
[643]
[361] No oral evidence was led from Mr Driussi. Mr Driussi does not say when he left for his travels or when he returned. Since the ECQ records show that the ballot paper was posted on 17 March 2009 it is quite likely that it was received in the ordinary course of post on 18 March 2009. If Mr Driussi did not receive it on that date then I infer it was because he was away on his travels. There has been no breach of s 110(2) by the ECQ.
[644]
17. Driussi, Kelly Jade (7366) - 9 Kenrick Close, Wakerley
[645]
[362] Ms Driussi resides at the same address as Jonathan Driussi. She too deposed that she had filled out an application for a postal vote but did not receive her ballot paper prior to polling day. Her application was also signed on 16 March 2009 and her reason for wanting a postal ballot was "interstate, overseas or >8km from a polling booth".
[646]
[363] The ECQ records show that Ms Driussi's application was created on the public website of the ECQ on 16 March 2009 and faxed at 6.47pm. The application was scanned at 6.52pm on that date and the scan was assigned and processed and the declaration envelope sent to print queue at 10.41am on 17 March 2009. The declaration envelope was printed on 17 March 2009 at 12.11pm. In accordance with Mr Ludwig's usual procedure, that would have been posted at 5 pm on the same day. I infer that the reason why Ms Driussi did not receive her ballot paper was because she was away from her place of residence when the ballot paper was delivered. There has been no breach of s 110(2) of the Act by the ECQ.
[647]
18. Dunn, Tony Graeme (7563) - 9 Henley Court, Carindale
[648]
[364] Mr Dunn deposed in an affidavit that he had filled out an application for a postal vote. The application is in the form provided by the LNP and is dated 10 March 2009. In the application he did not give any reason for needing a postal vote. In his affidavit he says he believes he did not receive a ballot paper at all from the ECQ for the 2009 State election. It appears from the lists exhibited to Mr Caltabiano's affidavit that Mr and Mrs Dunn's applications for postal votes were delivered by the LNP to the ECQ on 11 March 2009.
[649]
[365] ECQ records show that Mr Dunn's application was scanned on 17 March 2009 at 6.54pm. On 18 March 2009 at 8.44am the scan was assigned and processed and sent to the print queue at Chatsworth. The records show that the declaration envelope was printed at 9.53am on 18 March 2009. In accordance with Mr Ludwig's normal practice, it would have been posted at 5 pm on that day. However, the completed ballot paper was not returned.
[650]
[366] Mr Dunn said in his oral evidence that the reason he had applied for a postal vote was that his mother had just had surgery on her back and had triple bypass surgery after that so they were "basically living out of hospital". She was first at the Mater Hospital and then at St Andrew's Hospital in Brisbane. He was at the hospital with his mother on polling day. He said he was of the belief that the initial paperwork he had filled out and sent off was, in actual fact, his vote, but he subsequently found out that it was just an application for a vote. He said that his wife, Ann Marie Dunn, had also applied for a postal vote and was in the same situation as him, but a failure to provide her with a postal ballot was not one of the matters particularised by the applicant.
[651]
[367] Mr Dunn said that he could not categorically say that the postal vote did not "land in his letterbox" but that he could say that he never took it out of his letterbox and read it. In view of the evidence that the declaration envelope was printed and sent to him, I am satisfied that he was not denied a vote by the actions of the ECQ. There was no contravention of s 110(2) of the Act.
[652]
19. Fancourt, Gwendoline Mary (8266) - 33 Peachdale Street, Tingalpa
[653]
[368] Gwendoline Fancourt deposed in an affidavit to having filled out an application for a postal vote. The application for the postal vote was exhibited. She said she had posted her postal vote application but did not receive a ballot paper at all from the ECQ. The postal vote application is on the LNP form and was signed by Mrs Fancourt on 8 March 2009. She gave as her reason for needing a postal vote that she would be "working or travelling and unable to vote at a polling booth". The address which she gave for voting material to be sent was "Mt Gambier Main PO 5290".
[654]
[369] The ECQ records show that the application was scanned on 16 March 2009 at 4.42pm. The scan was assigned and processed and the declaration envelope was sent to the print queue at Chatsworth on 17 March 2009 at 9.05am. The declaration envelope was printed at Chatsworth at 10.29am on 17 March 2009. In accordance with Mr Ludwig's usual practice, it would have been posted at 5 pm that day.
[655]
[370] In oral evidence, Mrs Fancourt said that she was going on holiday to Melbourne with her husband to see her daughter and to stay for a while. When asked, she said she went to South Australia as well. No postal vote was received at their enrolled address. She said that is where they were expecting it to be sent and they had hoped to get it before they left. When it did not arrive before they left, she went to enquire at the Doboy ward office, which she said knew that she had applied for a postal vote. After leaving for holidays, they enquired of the person who was looking after their mail at their home address. That person said that nothing had arrived. While they were in Melbourne Mrs Fancourt said that they also telephoned someone "down at Tingalpa" and spoke to a gentleman who told them not to worry and that the ballot papers would arrive. However, they did not enquire at the Mt Gambier Main Post Office. As she had asked for the ballot papers to be sent there rather than to her enrolled address, it is understandable why she did not receive the voting material. I am satisfied that there was no contravention of s 110(2) by the ECQ.
[656]
20. Fancourt, Ronald James (8267) - 33 Peachdale Street, Tingalpa
[657]
[371] Ronald Fancourt also applied for a postal vote in the same terms and in the same way as that applied for by his wife. His application was scanned on 16 March 2009 at 4.42pm and the scan was assigned and processed and the declaration envelope sent to the print queue at Chatsworth on 17 March 2009 at 9.04am. The declaration envelope was printed on 17 March 2009 at 10.38am. In accordance with Mr Ludwig's usual procedure, it would have been posted at 5 pm on that day.
[658]
[372] The ECQ records reveal that an error was made in recording the address to which Mr Fancourt's voting materials should be sent as Mt Gambier Main Post Office at "Mt Gambier Qld". There is no Mt Gambier in Queensland. The only Mt Gambier in Australia is in South Australia, so it seems unlikely that the postal authorities were misled by the insertion of Queensland as the State.
[659]
[373] I am satisfied that Mr Fancourt was not denied a vote because of any contravention of the Act. Even if I were to find that the misaddressing constituted a contravention of the Act, it could not have affected the outcome of the election. This is because even if it had been correctly addressed, Mr Fancourt would not have received it as he did not go to the Mt Gambier Post Office to check if he had received his voting materials.
[374] Jacqueline Genn gave evidence that she had filled out an application for a postal vote which she signed on 6 March 2009. Her reason was that she would be "interstate, overseas or >8kms from a polling booth". She gave "Launceston PO, Tasmania" as the address for the voting material to be sent. She was in Tasmania when the election was called and asked for the voting material to be sent there so that she and her husband could vote. She said she did not receive a ballot paper at all from the ECQ for the 2009 State election as it was sent to her home address rather than to the Launceston Post Office. It appears from the lists exhibited to Mr Caltabiano's affidavit that Mr and Mrs Genn's applications for postal votes were delivered by the LNP to the ECQ on 13 March 2009.
[662]
[375] The ECQ records show that the application was scanned on 16 March 2009 at 4.39pm. The scan was assigned and processed and the declaration envelope was sent to the print queue at Chatsworth on 16 March 2009 at 8.48pm. The declaration envelope was printed at Chatsworth on 17 March 2009 at 10.03am and would have been sent, in accordance with Mr Ludwig's usual practice, at 5 pm that day. The ECQ records show that it was posted to the Launceston Post Office, Launceston, Tasmania 7250. No ballot paper was received by the ECQ from Ms Genn. There does not appear to have been any contravention of s 110(2) of the Act by the ECQ with regard to Mrs Genn's ballot papers which were posted to the address which she nominated. I will deal with the Genns' circumstances in greater detail under Mr Genn.
[663]
22. Genn, Trevor Raymond (9584) - 408 Winstanley Street, Carindale
[664]
[376] Trevor Genn also applied for a postal vote to be sent to "Launceston PO Tasmania". His application for a postal vote was dated 6 March 2009 and was in the form provided by the LNP. He said he did not receive the ballot paper at all from the ECQ for the 2009 State election as it was sent to his home address rather than to the Launceston Post Office.
[665]
[377] The lists exhibited to Mr Caltabiano's affidavit shows that the postal vote application form was delivered by the LNP to the ECQ on 13 March 2009. It appears that Mr Genn's application took seven days from the time it was signed to the time it was received by the LNP and delivered to the ECQ.
[666]
[378] The ECQ records show that the application was scanned on 16 March 2009 at 4.38pm. The scan was assigned and processed and the declaration envelope was sent to the print queue at 8.26pm on 16 March 2009. The declaration envelope was printed at 10.03am on 17 March 2009. The address to which it was sent was "Launceton PO Tasmania 7520".
[667]
[379] There were two errors in this address: first, Launceston is misspelt; and secondly, the correct postcode is 7250 not 7520. There is no locality in Australia with the postcode 7520. Mr Kerslake deposed that an error of this kind is minor and should not have prevented the material from being delivered in a timely way.
[668]
[380] In Mr Genn's oral evidence, he said that he and his wife were on holiday in Tasmania for about two months travelling all over the island. They arrived on about 25 January and left on about 29 March 2009. He said he called in to the post office at Launceston. He picked the wrong post office and had to go to the other post office but when they checked the other post office in Launceston there was nothing there for them.
[669]
[381] He said that they had estimated that it would take about 10 days for their ballot papers to arrive from the date they sent the postal vote application to Brisbane. So they went to pick up their voting materials on about 16 March or perhaps 20 March. He said he was not sure of the dates. He said that they did not receive any other mail at the Launceston Post Office. All their mail went to their daughter at Tugun but at one stage they knew where they were going to be in the next week and they asked their daughter to send it there. He said that was why they got the notification about the request for a postal vote.
[670]
[382] In oral evidence, Mr Genn said that the postal voting material "was at home when [they] got home". He was not asked whether the postal voting material was addressed to his enrolled address at Carindale or whether it was addressed to the Launceston Post Office. Mr Genn was asked in cross-examination whether he had left any redirection instructions. It is necessary to set out the following passage of the transcript:
[671]
"Did you leave any redirection instructions at Launceston [P]ost [O]ffice?-- No. Not that I can remember. I don't think so.
[672]
That could have happened? You could-----?-- I don't think so. I don't think so."
[673]
[383] The ECQ's records show the address to which the voting material was sent as set out above. The evidence shows that the voting materials were sent to the Launceston Post Office, not to the enrolled address. If Mr and Mrs Genn did eventually receive the voting materials at their enrolled address, it can only be explained by Mr Genn's being mistaken about their not leaving a forwarding address.
[674]
[384] These circumstances show the difficulties involved when mail is forwarded multiple times to different addresses. There was, however, no breach of s 110(2) of the Act. Further, the applicant cannot rely on delay in sending out the postal vote ballot papers because of s 137(1)(b) of the Act.
[675]
23. Gliddon, Anthony Michael (9900) - 7 Ashburton Place, Wakerley
[676]
[385] Anthony Gliddon did not give affidavit or oral evidence. It appears from the consolidated electoral roll that he did not vote. His application for a postal vote was delivered according to the lists exhibited to Mr Caltabiano's affidavit by the LNP to the ECQ on 3 March 2009.
[677]
[386] ECQ records show that his application was scanned on 11 March 2009 at 7.07pm. The scan was assigned and processed, and the declaration envelope sent to the print queue on 14 March 2009 at 9.38am. The declaration envelope was printed at Chatsworth at 7.20pm that night. The declaration vote was deleted, however, because Mr Gliddon was overseas and the declaration vote did not arrive in time for him to vote. There was no breach of s 110(2) of the Act in this instance. The applicant cannot rely on any delay in sending out the ballot papers because of s 137(1)(b) of the Act.
[387] Ms Ho gave evidence by affidavit that she had filled out an application for a postal vote after the announcement of the 2009 State election. Her postal vote application is in the form provided by the LNP and was originally dated 24 February 2008, although some person has written a "9" over the "8". I am satisfied that the application was made on 24 February 2009. The reason given for applying for a postal vote was that she would be "working or travelling and unable to vote at a polling booth". The address to which the ballot paper was to be sent was the same as the address at which she was enrolled at Carina Heights. It appears from the lists exhibited to Mr Caltabiano's affidavit that her application was delivered on 3 March 2009 by the LNP to the ECQ. Her address is misspelt on the application; however, it was correctly recorded by the ECQ.
[680]
[388] The ECQ records show that the application was scanned on 11 March 2009 at 7.07pm. The scan was assigned, processed and the declaration envelope sent to the print queue on 14 March 2009 at 9.39am. The declaration envelope was printed in Chatsworth at 7.12pm on 14 March 2009. In accordance with Mr Ludwig's usual procedure, it would have been posted at 9 am on 15 March 2009. No postal ballot was received back from Ms Ho.
[681]
[389] Ms Ho was of the belief that she had sent the application to the electoral office but it can be seen from Mr Caltabiano's affidavit that she sent it to the campaign office of the LNP candidate. She said she was on holidays in Vietnam at the time of the election. Ms Ho was able to confirm that she left Australia on 2 March 2009. At that time, nominations had not yet closed and therefore the ballot papers were yet to be printed. She did not ask for any mail to be sent on to Vietnam so there was no prospect that the ballot papers could have reached her. Further, she herself said in evidence that she has problems receiving letters in her letterbox because of mail being taken from it or being sent to the wrong letterbox. There was no breach by the ECQ of s 110(2) of the Act in delivering the ballot papers to her enrolled address which was, after all, where she had asked for the ballot papers to be sent.
[682]
25. Kantor, Joseph (14047) - 16 Strahan Street, Belmont
[683]
[390] The ECQ records show that Mr and Mrs Kantor both made applications for postal votes. The postal voting material for both was forwarded in error to their enrolled address. Mrs Kantor's vote was nevertheless returned completed and her vote accepted at scrutiny. Mr Kantor's was not returned.
[684]
[391] It appears that their applications for postal votes were delivered by the LNP to the ECQ on 3 March 2009. Mr Kantor's application for a postal vote was signed by him on 28 February 2009. The reason he gave for requiring a postal vote was "you are (or someone you are caring for is) ill, in advanced pregnancy or disabled". The LNP form, which Mr Kantor filled out, has two address fields. The first is the "address where you are enrolled", in response to which Mr Kantor wrote "188 Meadowlands Rd Carina 4152". The second is directly underneath, and is the "address to send voting material or to have an electoral visitor vote taken (if different to above address)". Mr Kantor left this field blank. In fact Mr Kantor is enrolled at 6 Strahan Street, Belmont and that is the address recorded in the LNP list when the application for a postal vote was delivered to the ECQ. Mrs Kantor's application was in the same form and similarly asked for the ballot paper to be sent to her enrolled address of 188 Meadowlands Road, Carina, whereas her enrolled address is 6 Strahan Street, Belmont.
[685]
[392] Mr Kantor's application was scanned by the ECQ on 14 March 2009 at 9.42am. The scan was assigned and processed and the declaration envelope sent to the print queue at 9.44am on 14 March 2009. The declaration envelope was printed at 5.52pm on that day. However, the declaration was deleted on the basis that he had an excuse for not voting in that he was in a nursing home and unable to vote. That excuse was first recorded on 14 March 2009. An excuse must be assessed by an electoral officer. It was accepted on 2 April 2009 at 4.29pm.
[686]
[393] It does appear from ECQ records that the voting materials were sent to 16 Strahan Street, Belmont, which was his enrolled address, rather than to the address he had nominated. However, that was not the reason that he did not vote. The same occurred with Mrs Kantor and it did not prevent her from casting a postal ballot. He did not vote because he was excused from voting. He asked to be excused from voting on 14 March 2009. Accordingly, I am not satisfied that Mr Kantor was denied a vote by a contravention of the Act by the ECQ.
[687]
26. Kitchen, Anthony Neal (14745) - 16 Myola Court, Carindale
[688]
[394] Anthony Kitchen did not give evidence. His name appears because his application for a postal vote, according to the lists exhibited to Mr Caltabiano's affidavit, was delivered by the LNP to the ECQ on 3 March 2009. However, the application before the Court is clearly date stamped "received 18 MAR 2009" and initialled by the returning officer in the Chatsworth electorate, which shows that it was delivered to the returning officer for the electoral district of Chatsworth.
[689]
[395] ECQ records show that his application was first scanned on 7 March 2009 at 9.20 am at the central postal voting facility of the ECQ. It was processed and a rejection letter sent to the print queue later on that day. It was rejected because it was not signed. The old application was deleted when a new application was received at the Chatsworth office on 18 March 2009. It was scanned at Chatsworth at 7.55pm on 18 March 2009. The scan was assigned and processed and the declaration envelope sent to the print queue at 8.13pm that night. It was printed at 10.57pm the same night.
[690]
[396] In accordance with Mr Ludwig's usual practice, it would have been posted at 9 am on 19 March 2009. Unfortunately, it was addressed to Mr Kitchen's enrolled address in Carindale rather than to the address he had provided in the application form. It was submitted by the second respondent that the elector has not provided an address required by s 110(1A) of the Act because the unit number is difficult to read. While it is clear that the street address is 118 Russell Street Melbourne 3000, it is true that, on the copy provided to the Court as part of Exhibit 1, it is not clear whether the unit number is 403, 408 or 40B. The second respondent further submitted that, due to the illegibility, the ECQ is not required to send a ballot paper at all but that it took the reasonable course of sending the ballot paper to the elector's enrolled address at Carindale. Accordingly, it is said that the elector has not been deprived of a vote.
[691]
[397] This submission is predicated upon its first being shown that the address provided by the elector was illegible. The copy provided to the Court is a photocopy. The original was not in evidence. There was no evidence from the ECQ to the effect that the original is so illegible that the application does not "state the address" as required by s 110(1A). Having regard to the copy tendered, I find that it is more likely than not that the original would have been sufficiently legible. Accordingly, the ECQ's posting of the postal vote material to the Carindale address rather than the Melbourne address constituted a contravention of s 110(2) of the Act which meant that Mr Kitchen was denied a vote to which he was entitled.
[692]
27. Koli, Arvo Evert (14889) - 951 Creek Road, Carindale
[693]
[398] The applicant relied upon an affidavit said to be sworn by Arvo Koli in this matter, but actually signed by Mavis Koli "Acting in POA". The affidavit said that after the announcement of the 2009 State election, Mr Koli filled out an application for a postal vote because he is elderly. He said that he did not receive his ballot paper until several days after polling day and as a result he did not vote. The applicant did not produce a copy of the application for a postal vote.
[694]
[399] The ECQ, however, has no record of receiving the application. I shall deal with the effect of this under Mrs Koli.
[695]
28. Koli Mavis Daphne (14890) - 951 Creek Road, Carindale
[696]
[400] Mavis Koli deposed that after the announcement of the 2009 State election, she had filled out an application for a postal vote because she is elderly. She said that she did not receive her ballot paper until several days after polling day and as a result did not vote. As with Mr Koli, the applicant did not produce a copy of Ms Koli's application for a postal vote. She does not say in her affidavit that she sent the application to the ECQ or anyone else.
[697]
[401] The ECQ has no record of receiving any application from either of them and therefore did not send them ballot papers. The "Chatsworth State Electorate Voter Survey" filled out by an LNP volunteer from information from Mr and Mrs Koli provides some explanation for the inconsistency between their recollection and the records of the ECQ. Under "general comments" on that survey is written: "Applied for a postal vote - possibly during the final week - (Can't recall when). The ballot papers arrived several days after the election day. Did not vote on/before E-Day. Husband has dementia. Couple are elderly. Husband use (sic) to handle business and voting matters and wife left it to final week before applying for a PVA)." It would appear that the better explanation is that the Kolis were mistaken about having received ballot papers and about having applied for a postal vote. This confusion is understandable if Mrs Koli was accustomed to relying on her husband in matters of this nature and he now has dementia.
[698]
[402] I am not satisfied on the basis of the evidence before me that either Arvo Koli or Mavis Koli made an application for a postal vote. Accordingly, they were not denied a vote by any contravention of the Act by the ECQ.
[699]
29. Lai, Daniel Chee-Yoong (15194) - 9 Ehlers Close, Carindale
[700]
[403] Daniel Lai did not give evidence in this matter. In an affidavit, Mr Bibb deposed that Mr Lai had completed and signed an application for a postal vote in the form provided by the ECQ. He gave the address of 35/3 Cavalrly [sic] Grove, Glenwood, NSW as the address to which he wanted his postal vote sent. The application is dated 13 March 2009 and appears to have been faxed to the ECQ on that day. The spelling of the address is incorrect as it should have been Cavalry Grove not Cavalrly Grove.
[701]
[404] Mr Bibb deposed that Mr Lai had completed a voter survey form in which he had said that he did not vote because he did not receive ballot papers until after polling day as they had been sent to the wrong address. The voter survey form is not before the Court. Mr Bibb deposed that Mr Lai had indicated to an LNP volunteer (not named in Mr Bibb's affidavit) that Mr Lai was prepared to sign a statement but that he was not readily available.
[702]
[405] ECQ records show that the application was scanned at 2.06pm on 13 March 2009. It was assigned and processed and the declaration envelope was sent to the print queue at Chatsworth at 8.18 am on 16 March 2009. In accordance with Mr Ludwig's usual procedure, it would have been posted at 5 pm on 16 March 2009. Unfortunately the ECQ records show a processing error. The address to which the voting materials were to be sent was recorded as Mr Lai's enrolled address so the voting materials would have been sent to this address. It appears that they may have made their way to Mr Lai some days after polling day, which would have been too late for him to cast a valid vote. I am therefore satisfied that Mr Lai was denied a vote because of a contravention of s 110(2) of the Act by the ECQ.
[406] Both Rochelle Little and Timothy Little signed their application for a postal vote on 24 February 2009. The lists exhibited to Mr Caltabiano's affidavit show that the applications for a postal vote by Mr and Mrs Little were delivered by or on behalf of the LNP to the ECQ on 3 March 2009.
[705]
[407] ECQ records show that Mrs Little's application was scanned on 11 March 2009 at 5.20pm. The scan was assigned and processed and the declaration envelope sent to the print queue on 13 March 2009 at 9.35am. The declaration envelope was printed at Chatsworth on 13 March 2009 at 2.35pm. In accordance with Mr Ludwig's usual procedure, it would have been posted at 5 pm on that day (which was a Friday) and received in the ordinary course of post no earlier than the following Monday, 16 March 2009. It appears that Mr and Mrs Little had left for overseas by that time and so they did not receive the ballot papers until they returned home.
[706]
[408] In oral evidence Mrs Little said that she had posted her postal vote application to a post office box connected with the LNP as she had received the application in a mail-out from the LNP. She said that she had made a note on her application that she needed it by 7 March even though she was leaving, and indeed did leave, for overseas on 14 March 2009. She said she wrote an earlier date so that "they would see the urgency of it and get it out to us ASAP". Polling day was held while they were overseas as they were gone for three weeks. The postal vote was in the mail when they returned home.
[707]
[409] The ECQ acted in accordance with the requirements imposed upon it under s 110(2) and so Mrs Little was not unlawfully denied a vote to which she was entitled.
[410] Mr Little gave evidence in affidavit to the same effect. His application for a postal vote was scanned by the ECQ on 13 March 2009 at 9.35am. The scan was assigned and processed and the declaration envelope sent to the print queue at 9.36am on 13 March 2009. It was printed at Chatsworth at 2.17pm on the same day. In accordance with Mr Ludwig's usual procedure, it would have been posted at 5 pm on that day. At that point the ECQ had complied with the requirements imposed upon it under the Act. Because of s 137(1)(b) of the Act, no effective complaint can be made in this application about the delay in scanning the applications for postal vote by Mr or Mrs Little.
[710]
32. Martens, Christie Jane (18053) - 26 Vortigern Street, Carindale
[711]
[411] Evidence was given by Christie Martens' mother, Catherine Martens. In her affidavit, Catherine Martens said that Christie Jane Martens, her daughter, filled out an application for a postal vote. Catherine Martens said that she had a general power of attorney over Christie Jane Martens and she recognised her daughter's signature on the application. She said her daughter did not receive a ballot paper from the ECQ and as a consequence did not vote. Her daughter is currently in London.
[712]
[412] The application for a postal vote gives the address where Christie Martens is enrolled as 26 Vortigern Street, Carindale, which is the same address as Catherine Martens. The application also asked for her ballot paper to be sent to that address. The lists exhibited to Mr Caltabiano's affidavit shows that Ms Martens' application for a postal vote was delivered to the ECQ by or on behalf of the LNP on 3 March 2009.
[713]
[413] ECQ records show that the application was scanned on 11 March 2009 at 5.21pm. The application was assigned and processed and the declaration envelope placed in the print queue on 13 March 2009 at 9.40am. The declaration envelope was printed at Chatsworth at 12.25pm on 13 March 2009 and therefore posted at 5 pm on that day. No ballot paper was received back and an excuse for voting was accepted on 31 March 2009 at 3.11pm.
[714]
[414] Catherine Martens gave evidence by telephone. She said her daughter has been in London for over 12 months and was in London at the time of the election. During her oral evidence Ms Martens said that her daughter did not fill out her application for a postal vote. Rather she (Catherine Martens) completed it and signed it. She said she did so because she has a power of attorney over her daughter. The power of attorney was not tendered in evidence.
[715]
[415] The application for a postal vote is signed "C Martens" under "signature of applicant" and there is no indication that Catherine Martens was signing it for Christie Martens as her attorney. Section 110(1) provides that the application for a postal vote must be signed by the elector. Section 179 extends the way in which an application may be signed but does not provide for it to be signed in the way in which this application for a postal vote was signed. The applicant did not argue that Catherine Martens could sign the application as attorney for her daughter. I have previously explained that an attorney cannot sign an application for an elector except in accordance with the provisions of s 179.[65] However, even if the POA Act extends the manner in which an application for a postal vote can be signed, this application was not signed by Catherine Martens in such a way to indicate that she was signing as her daughter's attorney as required by s 69(2) of the POA Act and so would not have been valid under that Act.
[716]
[416] Catherine Martens said in evidence that she had received the ballot papers for her daughter on the Wednesday before the election so she had by then no hope of posting on to her daughter in London in time for her to be able to vote. She did not therefore try to forward the material. Christie Martens did not vote.
[717]
[417] Because the application was signed "C Martens" but not by Christie Martens but by her mother, Catherine Martens, a postal ballot paper should not have been issued to her. This is not a criticism of the ECQ. It had no reason to suspect that the signature "C Martens" on the application was not that of Christie Martens. However, that had no effect on the election outcome because the ballot paper was not returned to the ECQ. Had the ballot paper been returned by Christie Martens, it is likely that it would have been rejected at scrutiny in any event because her signature on the declaration envelope would not have matched the signature of her mother on the application.
[718]
[418] Christie Martens was not denied a vote by any contravention of the Act by the ECQ.
[719]
33. Menzies, John Richard Beal (18515) - 57 Underwood Street, Wakerley
[720]
[419] John Menzies deposed in an affidavit that he had filled out an application for a postal ballot after the announcement of the 2009 State election. His application for a postal ballot is in the form provided by the ECQ and is dated 5 March 2009. He asked for his ballot paper to be sent to PO Box 4199, Gumdale 4154. He said the reason that he qualified for a postal vote was that he would be "interstate in a remote area" instead of at his enrolled address.
[721]
[420] ECQ records show that his application was scanned on 10 March 2009 at 11.47am. The scan was assigned and processed and the declaration envelope sent to the print queue at Chatsworth at 6.23pm on 10 March 2009. The declaration envelope was printed in Chatsworth at 1.09pm on 11 March 2009 and, in accordance with Mr Ludwig's usual practice, would have been posted at 5 pm on that day. The address to which it was posted was 47 Underwood Street, Wakerley 4154 instead of the post box which he had nominated.
[722]
[421] Mr Menzies gave oral evidence in which he said he was going to be in the Victorian high country on polling day. He said he had left on 17 March 2009 to go to Victoria and he was away until the end of the month. He checked his post office box when he returned and there was nothing from the ECQ in the post box. He said he was at his address at 57 Underwood Street, Wakerley until he left on 17 March to go to Victoria. He said that if any mail was posted to 57 Underwood Street and Australia Post had delivered the mail there he would have been there to receive it until the date he went away. He said he had a sign on his letterbox directing mail back to the post office box. It would appear then that when Australia Post attempted to deliver the mail from the ECQ to his letterbox it would have then sent the letter onto his post office box. However, he did not receive it.
[723]
[422] It would appear that part of the reason that Mr Menzies did not receive his ballot paper was because the ECQ did not send the ballot paper and declaration envelope to the address he had nominated. Even though all mail to his enrolled address was to have been redirected to his post office box, the practice of forwarding mail, as I have said earlier, increases the risk that some mail would be misdirected. That, I would infer, is a reason why Mr Menzies nominated his post office box on his application form rather than his enrolled address as the address to which ballot papers were to be delivered. He was therefore denied a vote, at least in part, because of a contravention of s 110(2) of the Act.
[724]
34. Munckton, Pamela Kay (19605) - 605 D'Arcy Road, Carina
[725]
[423] Pamela Munckton gave evidence by affidavit in which she said that she had filled out an application for a postal vote after the announcement of the 2009 State election. Her application for a postal vote is in the ECQ form. It was dated 16 March 2009. She said the reason that she qualified for a postal vote was that she would be interstate in Melbourne. She gave the address where she required the postal ballot to be sent as 632 Barkly Street, West Footscray Victoria 3012. She said that the ballot paper did not arrive.
[726]
[424] ECQ records show that the application was scanned on 16 March 2009 at 2.20pm. The scan was assigned and processed and the declaration envelope sent to the print queue at 6.11pm on 16 March 2009. The declaration envelope was printed at Chatsworth on 16 March 2009 at 9.39pm. In accordance with Mr Ludwig's usual procedure, it would have been posted at 9 am on 17 March 2009. Ms Munckton's excuse for not voting that she was "currently travelling throughout Victoria" and unable to cast her vote was accepted on 6 April 2009 by the returning officer at Chatsworth.
[727]
[425] In oral evidence, she said she had faxed her application from her workplace, New Clicks Australia. The fax marks on the top of the application show that it was sent at 12.28pm on 16 March 2009. Ms Munckton said she was working in Melbourne between January and July 2009. She therefore thought that she had faxed the application from Melbourne. The address she put on her application was an address where she was staying with friends. She said she called the ECQ a day or two before polling day because the ballot papers had not arrived. She was told by a gentleman to whom she spoke that he could see that she had requested her postal vote and he would make a notation that it had not arrived and that would be all she needed to do. She was concerned about what would happen to her if she had not voted.
[728]
[426] It appears that either one of two things happened in this case. It is more likely that Ms Munckton's ballot paper was sent by mail but went astray in the post. It is possible, but less likely, that she rang after the declaration envelope was printed but before it was posted and her excuse for not voting was accepted and therefore the ballot paper was not sent.
[729]
[427] In either event, there was no contravention of the Act by the ECQ and Ms Munckton was not unlawfully denied a vote.
[428] Mr Ostenheden gave evidence by affidavit that, after the announcement of the 2009 State election, he had filled out an application for a postal vote. He said he did not attend the polling booth as he had an injury. He said he completed his postal vote application and it was posted for him. However, he did not receive a ballot paper from the ECQ for the 2009 State election. ECQ records show no postal vote application was received by the ECQ from Mr Ostenheden.
[732]
[429] In oral evidence he said he could not remember to whom he gave the application for a postal vote. He believed it might have been Mr Caltabiano or somebody representing or acting for Ms Caltabiano. Mr Ostenheden's application for a postal vote was not amongst those provided to the ECQ by the LNP. As the ECQ did not receive an application for postal vote, there was no contravention of the Act by the ECQ in not sending Mr Ostenheden a postal vote.
[733]
36. Pouchkareff, Peter (22272) - 43 Ambara Street, Belmont
[734]
[430] Mr Pouchkareff did not give evidence whether by way of affidavit or orally. His application for a postal vote shows that it was signed by him on 18 March 2009. It says the reason why he qualified for a postal vote was that he was currently in Western Australia. He gave his enrolled address as 38 Needlewood Street, Cambalda, Western Australia 6442. In answer to the question "please send voting material to me/have my electoral visit vote taken at: ADDRESS (if the same as your enrolled address print 'AS ABOVE'):" he wrote "as above". This is of course ambiguous since the address put in above was not actually his enrolled address.
[735]
[431] ECQ records show that, notwithstanding that, his application was scanned on 18 March 2009 at 12.26pm, and the scan was assigned and processed and the declaration envelope sent to the print queue at Chatsworth on the same day at 1.11pm. The declaration envelope was printed at Chatsworth on 18 March 2009 at 2.28pm. In accordance with Mr Ludwig's usual procedure, it would have been posted at 5 pm on that day. Mr Pouchkareff's postal vote was sent to the address he had requested on the day on which he had applied for it.
[736]
[432] Mr Pouchkareff's ballot paper was rejected at scrutiny because it was not signed and witnessed by 6 pm on polling day. Mr Pouchkareff's declaration envelope, which was returned with his ballot paper, was signed by Mr Pouchkareff but the authorised witness whose certificate is supposed to be "I hereby certify that the voter indicated in Part 1 signed/marked this Declaration in my presence before 6.00pm on Polling Day" has crossed out the words "Polling Day" and inserted "25/03/09". Mr Pouchkareff's vote was therefore correctly rejected under s 116(2)(b) of the Act.
[737]
37. Presley, Terrance Mark (22427) - 863 Grassdale Road, Gumdale
[738]
[433] Mr Presley deposed that he had filled out an application for a postal vote after the announcement of the 2009 State election. He said he had posted his postal vote application. He said he did not receive voting materials addressed to him but received a ballot paper on 19 March 2009 for a different person. He contacted the ECQ regarding these matters and was informed that it was by then too late to receive new ballot papers or to vote at a pre-poll centre. He said other options were not given to him.
[739]
[434] ECQ records show that no application for postal vote was received from Mr Presley.
[740]
[435] Mr Presley's evidence was unsatisfactory in many respects. First, his evidence changed as to the method of sending the postal vote application to the ECQ. While he had deposed in his affidavit that he had posted his application, his oral evidence was that he had faxed it. Secondly, his oral evidence was that he had faxed his application "on the very last day", which he thought was the Wednesday before the election. He then said "it was either the Tuesday or the Wednesday, I am not sure, but it was the last, I do remember that". In fact, the last day for making a postal vote application was Thursday 19 March 2009. Thirdly, he was not sure of the number to which he had faxed his postal vote application. Fourthly, he did not exhibit his application for a postal vote. If he had faxed it as he said, then he would have retained the original. Fifthly, he said he was told it was too late to vote by pre-poll. It is unlikely that he was given that incorrect information. In any event, like all electors, he would have received a letter from the ECQ telling him that he could vote by pre-poll voting at any time until 6pm on the day before polling day, or by absent voting on polling day. Finally, Mr Presley was the only person who gave any evidence in these proceedings who had disclosed his own voting intention. It may be that his political views have coloured his evidence.
[741]
[436] Despite this, he did say that he had faxed his wife's application at the same time as his own. The electoral roll confirms that she did vote by postal vote. In these circumstances, I am prepared to accept that he probably sent his application by facsimile as well and he was therefore probably denied a vote because his name was not correctly recorded by the ECQ on the declaration envelope. If so, this was an error by the ECQ and Mr Presley was denied a vote because of it.
[742]
38. The unknown voter whose ballot paper was sent to TM Presley in error
[743]
[437] It does not follow that, because Mr Presley received a postal ballot addressed to someone else, that that other unknown person was deprived of a vote. The evidence referred to earlier shows that many electors who applied for, but did not receive, a postal vote, for one reason or another, nevertheless voted in another way whether by pre-poll, absent or other declaration vote or even by going to a booth on polling day. The failure to receive a requested postal vote does not necessarily deprive an elector of the opportunity to vote. Absent a specific complaint, I am not satisfied that there was an unknown voter who was denied a vote because his or her declaration envelope was sent to Mr Presley.
[744]
[438] These proceedings were conducted by the applicant in a comprehensive way. It is therefore likely that if an elector had not been supplied a ballot paper in spite of applying for a postal vote and as a result not voted, the applicant would have been able to identify that voter in the particulars to her amended originating application. Indeed it may well be that such a person is already listed in the particulars. Accordingly, there is a danger that relying only on Mr Presley's evidence, which was, as I earlier described, unsatisfactory in many respects, could lead to a double counting of that unidentified person. For that additional reason, I decline to find that an elector was denied a vote in these circumstances.
[745]
39. Scobie, Karissa Louise (24725) - 1648 Wynnum Road, Tingalpa
[746]
[439] Karissa Scobie gave evidence by affidavit that she had filled out an application for a postal vote after the announcement of the 2009 State election but she did not receive a ballot paper from the ECQ. Her application for a postal vote was signed on 10 March 2009.
[747]
[440] The names of Mr and Mrs Scobie appear on the lists exhibited to Mr Caltabiano's affidavit of applications for postal votes delivered to the ECQ on 18 March 2009. The application itself is stamped 18 March 2009 and signed by Mr Ludwig the returning officer. Although Mr Caltabiano swears in his affidavit that the postal vote applications were delivered to the ECQ office at their Vulture Street premises each day, I infer that Mr and Mrs Scobie's application for postal votes were in fact delivered to the Chatsworth returning officer on 18 March 2009.
[748]
[441] The application for a postal ballot gives as the reason that a postal vote was required was that she would be interstate, overseas or more than 8 kilometres from a polling booth. The address given to which polling material should be sent was PO Box 2022, Tingalpa 4173.
[749]
[442] ECQ records show that the application was scanned and processed on 18 March 2009 and the declaration envelope printed at 2.41pm on that day. In accordance with Mr Ludwig's usual practice, it would have been posted at 5 pm on 18 March 2009, which was the earliest possible time that a postal vote application given to the ECQ on 18 March 2009 could have been posted. Mrs Scobie did not give evidence but her husband Karl Leslie Scobie did, so I shall refer further to the situation with regard to her postal vote when I deal with his.
[750]
40. Scobie, Karl Leslie (24726) - 1648 Wynnum Road, Tingalpa
[751]
[443] Mr Scobie gave evidence that he had also filled out an application for a postal vote which he signed and dated 10 March 2009. Like Mrs Scobie's, it was receipted by Mr Ludwig on 18 March 2009 and gave the same postal address to which it was to be sent as Mrs Scobie had given.
[752]
[444] The ECQ records show that his declaration envelope was printed at 2.28pm on 18 March 2009 and so, in accordance with Mr Ludwig's usual procedure, would have been posted at 5 pm on that day. Both Karl and Karissa Scobie's declaration envelopes and ballot papers were sent to the post office box address which they had nominated.
[753]
[445] Mr Scobie gave oral evidence in these proceedings. He said that he and his wife were in Sydney on polling day. He said they do many trips to Sydney so he was not sure of the day on which they had left but he thought they had left on the Friday and had only gone for the weekend. When asked in cross-examination if it was possible that the ballot papers arrived after they got back from Sydney he said "No, look, the ballot papers never arrived at our address which was 5 Rymera Crescent." This may indeed explain what the problem was. Both Karissa and Karl Scobie have 1648 Wynnum Road, Tingalpa as their enrolled address Each of them asked for their postal ballot papers to be sent to a post office box. They did not request their ballot papers to be sent to 5 Rymera Crescent. Mr Scobie said that he checked his post office box but they did not turn up either way. He said in evidence that he and Karissa Scobie had lived at 1648 Wynnum Road, Tingalpa but had moved from that address in September 2008.
[754]
[446] Mr Scobie became quite agitated during the giving of his evidence, which was by telephone. The reasons for his agitation were therefore not apparent. He did say in answer to one question that he was overseas during an election years ago and was fined for not voting. Perhaps it was concern that he may have been fined for not voting that caused his agitation. I was satisfied that the declaration envelopes and ballot papers were posted to Mr and Mrs Scobie in accordance with their applications once they had been received by Mr Ludwig on 18 March 2009 and I was not satisfied that Mr and Mrs Scobie did not receive them. If they had not received them in time, they could in any event have voted by pre-poll vote. There was no breach of the Act by the ECQ and neither Mr nor Mrs Scobie was denied a vote because of the actions of the ECQ.
[755]
41. Steinfeld, Maria* (26372) - 29 Hamilton Street, Tingalpa
[756]
[447] Eduard Steinfeld gave evidence by affidavit. He exhibited the page which contained the applications of himself and his wife, Maria Steinfeld, for a postal vote. Mr Steinfeld signed his own application. He also signed Maria Steinfeld's application in the following fashion: "Husband for Wife: E Steinfeld". This signature was not in accordance with the requirements of the Act. Mr Steinfield was sent postal voting materials by the ECQ but Maria Steinfeld was not. As her application was not signed as required by s 110(1) and s 179, the ECQ did not contravene the Act in not sending her a postal ballot. Mr Wiltshire deposed that the ECQ had advised Mrs Steinfeld by letter of her omission to sign the application and the application was returned to her for signature but it was not returned.
[757]
42. Tomlyn, Shirley June (27791) - 741 London Road, Chandler
[758]
[448] Shirley Tomlyn gave evidence by affidavit that she had filled out an application for a postal vote, but that she did not vote as she did not receive ballot papers. The application was signed by her on 26 February 2009.
[759]
[449] In her oral evidence she revealed that she is a special postal voter. This was confirmed by Mr Wiltshire who deposed that Ms Tomlyn was automatically sent an application for a postal vote by the ECQ because she was registered as a general postal voter for federal elections. In fact, s 110(3) obliges the ECQ to post a ballot paper and declaration envelope to a special postal voter. This was not done. The reason that she was sent an application for a postal vote was not explored in the evidence. Perhaps the explanation is found in the fact that the Commissioner is obliged by s 110(5) of the Act to review the continuing eligibility of electors who are special postal voters to make a declaration vote, not less than 18 months but not more than 3 years after the return of the writ for an election; and posting an application was designed to check the special postal voter's continuing eligibility. If so, the application for a postal vote is not apt for that purpose and a different form should be designed which addresses the question of continuing eligibility to be a special postal voter.
[760]
[450] ECQ records show that the application was generated by it on 3 March 2009 on the close of the rolls and printed at Chatsworth at 1.52 pm on 4 March 2009. In accordance with Mr Ludwig's usual procedure, it would have been posted to her at 5 pm on that day. The ECQ has no record of having received a completed application and she was not issued with a postal ballot. She did not vote in the 2009 State election.
[761]
[451] The evidence shows that Ms Tomlyn received a form for an application for a postal vote from both the ECQ and the LNP. She filled in the application sent by the LNP on 26 February before she received the application sent by the ECQ. Her application for a postal vote in the LNP form was delivered to the ECQ, according to the lists exhibited to Mr Caltabiano's affidavit, on 3 March 2009. The ECQ has no record of receiving it.
[762]
[452] On polling day, she was a patient at the rehabilitation centre of the Redland Hospital. From her oral evidence it appears that polling officials visited the hospital to allow patients to cast a vote but did not come to see her in spite of the fact that she wished to vote as she had not received her postal ballot.
[763]
[453] It does appear that Ms Tomlyn was denied a vote by a combination of circumstances. As Ms Tomlyn was a special postal voter, the ECQ was obliged under s 110(3) to post her a ballot paper and declaration envelope. The failure to do so denied her the opportunity to cast a vote as a special postal voter. Ms Tomlyn was again denied the opportunity to vote on polling day at the Redland Hospital under s 104 of the Act due to no fault of her own.
[764]
43. Walk, Shirley Joan (28852) - 85/2 Ford Court, Carindale
[765]
[454] Ms Walk swore that she had filled out an application for a postal vote after the announcement of the 2009 State election. She identified her signature on her application for a postal vote dated 3 March 2009. She asked for her vote to be sent to Palm Lake Resort, 85/101 Wright Street, Carindale, which is where she said she was enrolled. In fact the address at which she is enrolled is 85/2 Ford Court, Carindale.
[766]
[455] ECQ records show that she was sent the application for a postal vote as soon as the rolls closed. The application was printed at Chatsworth at 1.52pm on 4 March 2009 and, in accordance with Mr Ludwig's usual practice, would have been posted on that day. An application from Ms Walk was sent to the ECQ and scanned on 12 March 2009 at 12.04pm. The scan was assigned and processed and the declaration envelope sent to the print queue at 1.04pm on 14 March 2009. The declaration envelope was printed at 2.19pm on Saturday 14 March 2009. In accordance with Mr Ludwig's usual procedure, it would have been posted at 5 pm on that day. It would have been received in the ordinary course of post no earlier than 16 or 17 March 2009, less than a week before polling day.
[767]
[456] The declaration envelope and ballot paper were sent, as she requested, to Palm Lake Resort, 85/101 Wright Street, Carindale Queensland 4152 but the completed ballot paper was not returned. Ms Walk gave evidence by telephone which was difficult for her because she was obviously quite deaf; nevertheless she was able to answer a number of questions. She said that she lives in a retirement village in which there are 200 units. The residents' mail is delivered to individual letterboxes from which the residents themselves must collect their mail. She said it is very hard for her to get to where the letterboxes are, and so she can only get her mail once a week. She said sometimes mail is in the letterbox longer than a week. She used to get people to get it for her but she does not like people to do so.
[768]
[457] Ms Walk said she thought she did not have to vote and she just let it go at that. She did say that she "got something back to say that is how to vote, but that is all I received". It appears that there are two possibilities with regard to her voting material. The first is that she received it and mistook it for material on how to vote. Secondly, it is equally possible that it went astray in the mail or was not collected from her letterbox either at all or before polling day. In either event, there was no contravention of s 110(2) of the Act by the ECQ and Ms Walk was not denied a vote for that reason.
[769]
44. Walters, Alan Wayne* (28989) - 22 Summit Street, Belmont
[770]
[458] Alan Walters is enrolled at the same address as Donna Walters so the evidence relevant to his vote is also relevant to hers. Mr Walters swore an affidavit in this matter in which he said that he had filled out an application for a postal vote after the announcement of the 2009 State election. His and his wife's applications were on the same page in the form provided by the LNP. Both are dated 24 February 2009 and the reason given for the application for a postal vote was that they would be interstate, overseas or more than 8 kilometres from a polling booth. The lists exhibited to Mr Caltabiano's affidavit show that Mr and Mrs Walters' applications for postal votes were delivered by or on behalf of the LNP to the ECQ on 3 March 2009.
[771]
[459] Mr Walters said that his wife called the ECQ with regard to his application as he was to be on a cruise as of 5 March 2009. He said that the person informed him (I take it that he means informed his wife) that he would not receive his postal ballot in time. He said he did not receive a ballot paper from the ECQ until after returning from his cruise, which was after the State election.
[772]
[460] ECQ records show that Mr Walters' application for a postal vote was scanned on 11 March 2009 at 5.21pm. The scan was assigned and processed and the declaration envelope was sent to the print queue at 9.38am on 13 March 2009. The declaration envelope was printed at 1.21pm on 13 March 2009 and, in accordance with Mr Ludwig's usual practice, would have been posted at 5 pm on that day. The address given for the postal vote to be sent was the enrolled address.
[773]
[461] The advice given to the Walters by the ECQ was apparently correct. The ballot papers were not generally available until 5 March which was the day by which they would be on a cruise. Pre-poll voting had not yet started. Mr Walters was not denied a vote by any contravention of the Act by the ECQ.
[774]
45. Walters, Donna Maree* (28993) - 22 Summit Street, Belmont
[775]
[462] The evidence with regard to Ms Walters was not effectively different. I am satisfied that the postal ballot papers were sent to Mr and Mrs Walters but they did not vote because they were on a cruise and therefore did not receive them in time. Any delays in sending out the ballot papers pursuant to s 110 of the Act cannot found orders under s 136 of the Act because of s 137(1)(b). I am satisfied there was no contravention of the Act and so neither Mr nor Mrs Walters were denied a vote for that reason.
[776]
46-80: The unnamed 31 or 34 electors revealed by Mr Ludwig under cross-examination
[777]
[463] The unnamed electors referred to are those who, according to Mr Ludwig, sent applications for postal votes to the ECQ that were received between 5pm and 6pm on Thursday 19 March 2009 and who gave an address to which they wanted their postal ballot papers sent outside the electoral district of Chatsworth. Mr Ludwig estimated that there were about 31 or 34 of them. He hand delivered the ballot papers to electors who had nominated an address within the electoral district and posted the rest in accordance with his usual practice, at 9 am on 20 March 2009 knowing that those electors would not receive their ballot papers in time to cast a postal vote.
[778]
[464] The applicant's argument depends upon the acceptance of the argument that Mr Ludwig was obliged to somehow ensure or at least take greater steps to increase the likelihood that those electors received their postal ballots before polling day. As referred to earlier,[66] that is not the obligation imposed on the returning officer or the ECQ by the Act.
[779]
[465] In any event, it is not possible to say whether any of these unnamed electors voted by other means whether as an absent voter, pre-poll voter or other declaration voter or whether they voted in a polling booth in the electorate on polling day. Voting by another means was not uncommon amongst those who had applied for postal votes. For example in Mr Wiltshire's eighth affidavit, he refers to a number of electors who had applied for postal votes but who had nevertheless voted by other means.
[780]
[466] I am not satisfied that any of those electors were denied a vote because of a contravention of the Act by the ECQ.
[781]
[467] I am satisfied that Mark Alan Cochrane was denied a vote to which he was entitled because his ballot paper was sent in error to Jeffrey Mark Cochrane who resides at the same address. Jeffrey Mark Cochrane did not vote twice. I am also satisfied that Anthony Neal Kitchen was denied a vote because it was sent to his enrolled address rather than the address in Melbourne which he nominated in his application for a postal vote. I am also satisfied that Daniel Lai was denied a vote because his ballot paper was sent to his enrolled address rather than the address nominated by him in New South Wales. I am also satisfied that John Menzies was denied a vote because his ballot paper was posted to his residential address rather than to the post office box that he had nominated. I am also satisfied that Terrance Presley was denied a vote because his name was not recorded on the ballot paper sent to his address. I am satisfied that Shirley Tomlyn was denied a vote because she did not receive a ballot paper to which she was entitled from the ECQ or because she was denied a vote under s 104 of the Act.
[782]
[468] Six electors were therefore denied a vote because of the ground set out in Ground 4(a).
[783]
Certain persons who were entitled to make a declaration vote pursuant to s 106(c) and 107(b) and s 108 of the Act cast such a vote but it was not counted in contravention of s 119(1), (3)(c), (4)(c) and (d) of the Act.
[784]
[470] The applicant identified five persons whom she says were denied a vote because their names were not on the electoral roll for the electoral district of Chatsworth because of an official error. As I mentioned earlier in these reasons, a person is entitled to vote if the person is on the roll. But a person is also entitled to vote if the person was not on the roll because of an official error. An elector whose name is not on the electoral roll for an electoral district because of an official error must make a declaration vote. A ballot paper must be accepted for counting under s 116(2)(a) only if the person examining the declaration envelope is satisfied that the elector concerned was entitled to vote at the election.
[785]
[471] My capacity to rule on this ground is, however, constrained by s 138(2)(b) of the Act which provides that the Court must not inquire whether the electoral roll was in accordance with the Act.[67] Any inquiry into whether a person was denied a vote to which they were entitled because that person was not on the roll because of official error is of necessity an inquiry into whether the roll was in accordance with the Act.
[786]
[472] The applicant did not address the statutory prohibition. She led evidence that certain persons not on the roll were nonetheless entitled to vote because their names were not on the roll because of official error. The evidence was led without objection. In case I am wrong about the scope of the statutory prohibition, I will determine the question before me of whether any electors are entitled to have their declaration votes counted because their names were not on the roll because of official error was denied that vote.
[787]
[473] Nicola Isaac swore an affidavit in this matter in which she said that she believed she is enrolled to vote in the electorate of Chatsworth. She resides at 1 Roscrea Street, Tingalpa and said that she had been living at her current address for three years and three months and had not changed her electoral roll details during that time. She voted at the last federal and local government elections as a resident at her current address. Her evidence was that she had attended the Tingalpa South polling booth on polling day seeking to cast her vote in the Chatsworth electorate. She was advised by the issuing officer that she was not on the roll and was therefore advised to fill in a declaration vote. She said the officer said words to the effect that "sometimes this just happens". She filled in the declaration vote and left the polling booth. She said that she did not receive any correspondence from the ECQ before the election.
[788]
[474] Mr Schultz gave evidence that Nicola Isaac enrolled for the address of 6 Pinnacle Place, Belmont on 23 August 2005. The AEC had removed Ms Isaac's name from the Commonwealth, State and local government electoral rolls on 12 March 2008. As I have already said, Mr Schultz's evidence was that when the AEC receives information that an elector may no longer reside at his or her enrolled address, the AEC commences an objection process to remove that elector's name from the roll. In this case the reason for the commencement of the objection process was "non-resident electoral roll review officer". Mr Schultz said that this was the result of the AEC's carrying out reviews by door knocks from time to time in certain areas.
[789]
[475] The objection process involved the issuing of a letter to the enrolled address seeking information that the elector still resided at the address or was no longer there. A response was required within a certain period of time. If no response was received to the first letter, a second letter would be sent stating that the elector has been removed from the roll unless the AEC was advised otherwise. In this case, the second letter was sent on 12 March 2008.
[790]
[476] Mr Schultz deposed that ECQ records show that Ms Isaac cast an "unenrolled" vote at the 2009 State election. The ECQ checks all unenrolled votes to see if an official error has been made. In this case Mr Schultz said that no official error had been made and Ms Isaac's vote was accordingly rejected. Mr Schultz said that on 28 May 2009 Ms Isaac changed her address on the roll to 1 Roscrea Street, Tingalpa, which is her current enrolled address.
[791]
[477] I am satisfied that in the circumstances there was no official error and Ms Isaac's ballot was correctly rejected as her name had been removed from the roll in accordance with the procedures set out in the Cth Act.
[792]
[478] The applicant filed an affidavit by Ms O'Brien in this matter exhibiting her declaration envelope and saying that she had completed her electoral enrolment form in "February 2008 a couple of days after the announcement of the State election" as a resident of 83 Williams Street, Wakerley within the electoral district of Chatsworth. The address given on her affidavit dated 1 August 2009 is 83 Williams Street, Wakerley. When she attended the Gumdale polling booth on polling day, she was advised that she was not on the roll.
[793]
[479] Mr Schultz's affidavit shows that Ms O'Brien was enrolled for the address of 24 Ayrvale Avenue, Lake Gardens in Victoria at the close of rolls for the 2009 State election. She completed an enrolment form which was signed and dated on 26 February 2009 to change her enrolled address to 83 Williams Street, Wakerley. The enrolment form was received by the AEC on 3 March 2009 after the close of rolls for the State election at 5 pm on 28 February 2009. On 2 July 2009, Ms O'Brien changed her address on the roll to 21 Matthews Way, Wakerley, which is her current enrolled address.
[794]
[480] Ms O'Brien's name was not on the roll but not because of official error. Ms O'Brien's vote was correctly rejected.
[795]
[481] Nicole Thompson swore an affidavit which was filed by the applicant in this matter. The affidavit does not disclose her address but merely the suburb of Wakerley. However, the declaration envelope exhibited to her affidavit gives her address as 10 Izzies Place, Wakerley 4154. She deposed that she has been living at her current address for three years and had not changed her electoral roll details in that time. She said that she had voted at the last federal and local government elections as a resident at her current address.
[796]
[482] When she attended the Gumdale polling booth on polling day, she was advised by the issuing officer that she was not on the roll. She filled in a declaration vote. She said she had advised the issuing officer that this had occurred before and that she had filled in her electoral enrolment details on more than one occasion for her current address and that her husband David Barry Thompson was on the roll at that address.
[797]
[483] Mr Schultz deposed that Ms Thompson enrolled for the address of 11 Poinciana Street, Wynnum West on 25 May 2005. The AEC removed Ms Thompson's name from the Commonwealth, State and local government electoral rolls on 4 September 2007. In accordance with the AEC's usual practice, when it received information that an elector may no longer reside at his or her enrolled address, the AEC commenced an objection process to remove the elector's name from the roll. In this case the reason for the commencement of the objection process was "non-resident electoral roll review officer". No response was received to the first letter so a second letter was sent 4 September 2007 stating that the elector had been removed from the roll unless the AEC was advised otherwise. No response was apparently received.
[798]
[484] As Ms Thompson's name was removed from the roll on 4 September 2007, she cannot have cast a valid vote at the federal election held on 24 November 2007 or the Brisbane City Council election held on 15 March 2008. On 25 March 2009, Ms Thompson changed her address on the roll to 10 Izzies Place, Wakerley, which is her current enrolled address.
[799]
[485] No official error was made in removing Ms Thompson's name from the roll and Ms Thompson's vote was correctly rejected.
[800]
[486] Christopher Bell swore an affidavit in which he said he believed he should be enrolled to vote in the electorate of Chatsworth and that he was taken off the roll without his knowledge. He said he had lived at this address for many years and had not had any trouble voting before the 2009 State election. As a result he made a declaration vote. Mr Bell gave his address in his affidavit as 327 Green Camp Road, Wakerley. That was also the address he put on his declaration vote.
[801]
[487] Mr Schultz's evidence showed that Mr Bell enrolled for the address of 327 Green Camp Road, Wakerley on 8 June 2000. However, an enrolment form completed by him was received by the AEC on 8 August 2006 in which he gave his new enrolled address as 308 Green Camp Road, Wakerley and his previous address as 327 Green Camp Road, Wakerley.
[802]
[488] Mr Schultz said that the AEC had removed Mr Bell's name from the Commonwealth, State and local government rolls on 8 December 2008. In this case the reason for the commencement of the objection process was returned unclaimed mail, from the elector's address, sent by a Member of Parliament. The usual objection process was then followed. As there was no response to the first letter, a second letter (in this case dated 8 December 2008) was sent stating that the elector had been removed from the roll unless the AEC was advised otherwise.
[803]
[489] There was no official error in denying Mr Bell a vote as his name had been removed from the roll in accordance with the AEC's statutory procedures. Mr Schultz said that when Mr Bell cast the declaration vote he also completed an enrolment form and was added to the roll on 25 March 2009 at the address of 327 Green Camp Road, Wakerley.
[804]
[490] Ms Mulhern said that she and her husband had sent change of address forms to the ECQ in December 2007. In doing so she acted in accordance with her statutory duty under s 65(3) of the Act. However, when they went to vote Ms Mulhern's details had not merely been changed; rather she had been removed from the roll completely. Daniel Nathan Mulhern is on the roll at the address of 18 Torrens Crescent, Wakerley. That is also Paola Mulhern's address.
[805]
[491] Mr Schultz's evidence shows that Paola Mulhern[68] enrolled for the address 5 Isaacs Way, Wakerley on 2 December 2004. Her name was removed from the Commonwealth, State and local government electoral rolls on 8 September 2008 as a result of a review by the AEC.
[806]
[492] In this case, the reason for the commencement of the objection process was "non-resident mail review". The statutory objection process was then instituted by the AEC. As there was no response to the AEC's first letter, a second letter (in this case dated 8 September 2008) was sent stating that the elector had been removed from the roll unless the AEC was advised otherwise.
[807]
[493] There are two possible explanations in this case. The first is that the ECQ was not in fact advised by Paola Mulhern of her change of address. The second is that she sent her change of address and it was for some reason not received or receipted by the ECQ. In view of her unchallenged affidavit evidence, I find that she sent her change of address to the ECQ and, as a result of an error, the electoral authorities failed to change her address on the roll. The AEC should not have instituted a non-resident mail review as the electoral authorities had been advised of her new address. This error, which led to her name being removed from the roll, was an official error and Ms Mulhern was entitled to vote by declaration vote under s 101(1)(c) and entitled to have that declaration vote counted.
[808]
[494] But for the statutory prohibition, I would be satisfied that Ms Mulhern was denied a vote to which she was entitled under s 101(1)(c).
[809]
[495] When Ms Mulhern attended the polling booth on polling day, she was told that she was not enrolled and therefore not entitled to vote. Nevertheless, she made a declaration vote under s 106(c) of the Act. Mr Schultz deposed that the ECQ checks all such votes to see if an official error has been made. The determination that no such official error had been made was, as explained above, incorrect.
[810]
[496] It appears that an elector, Paola Mulhern, has been denied a vote to which she was entitled because of the incorrect decision of the ECQ not to include her declaration vote in the official count. A decision to this effect, however, necessarily involves a decision that the roll was not in accordance with the Act, a matter on which the Court is prohibited from inquiring. I therefore decline to make any finding under ground 4(b). The scheme of the Act is that a wrongful decision made to remove a person from the roll is justiciable by way of administrative review under s 180 of the Act rather than in the Court of Disputed Returns.
[811]
Certain persons who were entitled to make a declaration vote, as a special postal voter, pursuant to s 105(1)(b) and (3)(a)(iii) of the Act, cast such a vote but it was not counted in contravention of s 119(1), (3)(c) and (4)(c) and (d) of the Act.
[812]
[498] Only one elector came within this category.
[813]
1. Romeyn, Koosje Elisabeth (23792) - 2593 Old Cleveland Road, Chandler
[814]
[499] The evidence for the applicant in this matter was given by an affidavit from Koosje Elizabeth Butwell who resides at the same address as Koosje Elisabeth Romeyn. Ms Butwell says that she holds a power of attorney over Ms Romeyn who she said is 95 per cent blind. On 26 February 2008, Ms Butwell had filled out an electoral enrolment form for persons unable to sign their name due to physical incapacity in Queensland. It requested that Ms Romeyn be registered as a general postal voter. On the electoral enrolment form Ms Butwell had ticked to signify that she had attached a medical certificate signed by a registered medical practitioner certifying that the applicant was unable to sign.
[815]
[500] Ms Butwell said that after the announcement of the 2009 State election she had filled out an application for a postal vote for Ms Romeyn. That application for a postal vote was delivered to the ECQ by Mr Caltabiano on 3 March 2009. The application for a postal vote was not exhibited to any material. It was not necessary for Ms Butwell to fill out an application for a postal vote for Ms Romeyn. Once Ms Romeyn had been registered as a special postal voter, the ECQ was obliged, pursuant to s 110(3) of the Act, to post a declaration envelope and ballot paper to her.
[816]
[501] It appears that voting material was sent by the ECQ and received by Ms Romeyn. The ballot paper was returned but rejected because Ms Butwell had signed the declaration as attorney for Ms Romeyn. In Mr Wiltshire's affidavit, he said that Ms Romeyn's vote was rejected at scrutiny, but as she was registered as an elector who was unable to sign her name due to a physical incapacity, the postal ballot appeared to have been incorrectly rejected by the returning officer at scrutiny.
[817]
[502] The second respondent submitted that Mrs Romeyn's vote was correctly disallowed. He submitted that the affidavit of Koosje Butwell indicates that she signed Ms Romeyn's "ballot paper" (presumably she means she signed the declaration envelope). The declaration envelope bears Ms Butwell's signature and then the words "for Mrs KE Romeyn".
[818]
[503] I have explained, earlier in these reasons,[69] why the procedures for signing under the Act prevails over the POA Act. The question here is whether the manner in which Ms Romeyn's declaration envelope was signed complied with the requirements of the Act.
[819]
[504] Section 110(5)(a) requires the elector to "sign" the appropriate declaration on the declaration envelope. Section 179(c) allows a person to "sign" a thing by having another person sign the other person's name and clearly printing the other person's name and address and the words "signed for the elector", if the elector is unable to sign or make a mark. Ms Romeyn fell into the category of persons who was unable to sign.
[820]
[505] Ms Butwell did not print her address. Nor did she write the words "signed for the elector". The question is whether the legislature intended that if the requirements of s 179(c) have not been met, the vote should be regarded as informal.
[821]
[506] The structure of s 179 is significant. Subsection 179(a) sets out the general rule that a person must personally sign in writing. Subsection 179(b) provides that if the person is unable to sign, that person may make a mark as a signature before another person who signs as a witness. Subsection 179(c) provides that if a person is unable to sign or make a mark personally, then another person may sign the person's name in writing and clearly print in writing the name and address of the person unable to sign (under sub-s 179(a)) or make a mark (under sub-s 179(b)) and the words "signed for the elector" on the document. It is apparent that s 179 provides for modes of signing in descending order. That is, a person may only sign under s 179(b) if the person is unable to sign under s 179(a). A person may only sign under s 179(c) if the person is unable to sign under s 179(a) or (b). Each of sub-ss 179(b) and (c) is a relaxation of the general principle that precedes it. The Act does not provide for any further relaxation from s 179. The relaxation to the general principle is contained within the section, not from it.
[822]
[507] My conclusion that s 179 exhaustively provides for the ways in which documents or things must be signed is reinforced by a consideration of the scheme of the Act. The Act imposes a number of strict requirements that must be complied with in order to cast a valid vote. Where the Act allows a departure from those provisions, it says so. For example, s 114(1) sets out the conditions for a ballot paper to have effect and s 116(2) imposes requirements as to whether a ballot paper may be accepted for counting. There are exceptions provided under s 114(2) and (3) where the legislature intended to allow some relaxation of the general rule.
[823]
"(5) Subject to subsection (7), on receiving the ballot paper and declaration envelope, the elector must -
[824]
"(a) sign the appropriate declaration on the declaration envelope before another elector or a person approved by the commission for the purposes of this paragraph and have the other elector or person sign the envelope as witness; and
[825]
(b) mark a vote on the ballot paper in accordance with section 113; and
[826]
(c) place the ballot paper in the envelope and seal the envelope; and
[827]
(i) give the envelope to a member of the commission's staff at an office of the commission before polling day or at a polling booth on polling day; or
[828]
(ii) post or send the envelope, or give it to another person to post or send, to the commission or the returning officer."
[829]
[509] Under s 110(6), if the elector is unable to vote without help, another person may help the elector by doing any of the things mentioned in s 110(5)(b)-(d). The fact that reference to paragraph 5(a) was deliberately omitted by the legislature shows that it intended that the declaration is required to be signed by the elector in one of the ways described in s 179 if the vote is to be formal. The use of the word "must" in s 110(5) is also consistent with this view.
[830]
[510] In any event, even if strict compliance were not required, there was no attempt at all to place Ms Butwell's address on the application. That requirement is designed to protect the integrity of the voting system and cannot be discarded.
[831]
[511] Accordingly, it appears that in spite of the concession to the contrary by the ECQ, Ms Romeyn's vote was not counted because the requirements for a valid postal vote were not met in that the declaration envelope was not signed in accordance with s 179 of the Act.
[832]
[512] There was no error in not counting Ms Romeyn's vote.
[833]
In respect of certain persons who had made a valid application for a declaration vote, in the form of an ordinary postal vote, pursuant to s 105(1) and (2) and 110(1) and (1A) of the Act, and did receive a ballot paper and declaration envelope, and upon receiving them complied with the requirements of s 110(5) of the Act, the first respondent failed to ensure that members of the first respondent's staff examined the declaration envelopes to determine whether the ballot papers in them were to be accepted for counting, in contravention of s 115 and s 116(1) of the Act, and identify the declaration envelopes and keep them separate in relation to the electoral district of Chatsworth, in contravention of s 119(1) and (2) of the Act, with effect that such ballot papers were not counted in contravention of s 119(1), (3)(c), (4)(c) and (d) of the Act.
[834]
[514] There were 20 electors alleged to fall within this category.
[835]
1. Allen, Madge (364) - 198 Jones Road, Carina Heights
[836]
[515] Madge Allen is recorded as not having voted at the 2009 State election. She did not give evidence. Rather, evidence was given by Mr Bibb that Ms Allen had completed and signed a postal vote application form. Ms Allen's application for a postal vote was dated 26 February 2009. It appears from Mr Caltabiano's evidence that her application was delivered by the LNP to the ECQ on 3 March 2009.
[837]
[516] ECQ records show that her application for a postal vote was placed on the print queue upon the automatic close of the rolls on 3 March 2009. Her application for postal vote was printed at Chatsworth on 4 March 2009 at 1.52pm. The completed application was scanned on 11 March 2009 at 7.08pm. At 9.47am on 14 March 2009, the scan was assigned and processed and the declaration envelope sent to the print queue. It was printed at 5.08pm on 14 March 2009 and posted, in accordance with Mr Ludwig's usual procedure, at 9 am on the following morning.
[838]
[517] Mr Bibb said that Ms Allen completed a voter survey form in which she had indicated that she had received a ballot paper, completed it and given it to a Meals on Wheels carer to post for her. They were never received by the ECQ so it is apparent that they went astray after Ms Allen gave the ballot paper in the declaration envelope to the Meals on Wheels volunteer (if she did in fact fill in the ballot paper). There is no evidence that all of the requirements as to the postal ballot paper and the declaration envelope being correctly completed were complied with; but, more importantly, the ballot paper was not received by the ECQ. This could have been for a number of reasons. Mr Bibb's version is unsourced second-hand hearsay; Ms Allen may not have given her ballot papers to a volunteer to post; the volunteer may not have posted it; or it may have gone astray in the mail. ECQ records do not show that it was ever received by the ECQ. Mr Ludwig's evidence as to the way in which he receipted and dealt with each declaration vote was not challenged.
[839]
[518] I am satisfied that there was no contravention of the Act by the ECQ in this case. As the first respondent submitted, if the ECQ does not receive ballot papers, it cannot count them.
[840]
2. Brown, Deandra Lee (2949) - 6/18 Kennington Road, Camp Hill
[841]
[519] Ms Brown gave evidence by affidavit in these proceedings. Ms Brown said that after the announcement of the 2009 State election, she filled out an application for a postal vote. Ms Brown's application for a postal vote was in the form provided by the ECQ and gives as her reason for wanting a postal vote that she would be interstate. The fax imprint shows that it was faxed to the ECQ on 18 March 2009 at 11.30am.
[842]
[520] Ms Brown deposed that she had received a ballot paper from the ECQ on the Wednesday prior to the election (18 March 2009) and returned it back on the same day in the envelope provided.
[843]
[521] ECQ records, however, show that her application for a postal vote was scanned on 18 March 2009 at 2.57pm. At 3.09pm the scan was assigned and processed and the declaration envelope sent to the print queue. The declaration envelope was printed at 10.57pm on 18 March 2009. In accordance with Mr Ludwig's usual practice, it would have been posted at 9 am on 19 March 2009, meaning that it would have been received in the ordinary course of post no earlier than the following day, which was Friday 20 March 2009. It was sent to the address Ms Brown had nominated in her application, 6/18 Kennington Road, Camp Hill Qld 4152, which was her enrolled address.
[844]
[522] Ms Brown also gave oral evidence where she was asked whether she had applied for a postal vote because she was travelling interstate. She replied that that was the reason. She then said that she was going to Bundaberg. She said she was originally supposed to be travelling to Perth but the plans changed and she ended up going to Bundaberg. She said she had left on the afternoon of Thursday 19 March 2009. She travelled to her parents' house at 1 Moore Park Road, Moore Park in Bundaberg. As far as she is aware, her parents voted, presumably on polling day, since they were at home.
[845]
[523] When she was cross-examined about the date on which she had received the ballot paper, she said that she was initially uncertain when she was asked about it on behalf of the applicant. At that time, she was uncertain whether or not she had received the ballot paper on the Wednesday or the Thursday. When she was shown the application, she then said it was the Thursday that she had sent in the ballot paper. Accordingly, when she said in her affidavit that she had sent the ballot paper on Wednesday, that was incorrect and she should have said Thursday. She said she was "not 100% sure" whether or not she received the ballot paper a day later than the day on which she had sent the application. She said she recalled receiving the ballot papers in the post and sending them back. She did not believe anyone was with her when she did that.
[846]
[524] There are of course a number of problems with her evidence. First, her evidence as to when she received the ballot papers cannot be correct either in her affidavit or her oral evidence. Secondly, it appears that if she had voted as she says she did, there was no one with her to witness her signature on the declaration envelope as required. Thirdly, if she did not receive her ballot papers before she left for Bundaberg, as seems likely, she could have voted as an absent voter at the polling booth at Moore Park which was, according to her evidence, only two minutes away from where her parents lived. Fourthly, she was clearly not more than 8 kilometres away from a polling booth on polling day and therefore was not entitled to a postal vote.
[847]
[525] I am satisfied that Ms Brown was not denied a vote because of any contravention of the Act by the ECQ.
[526] Eleni Christadoulou deposed in an affidavit that she had filled out an application (which was dated 16 March 2009) for a postal vote and received her ballot paper before polling day. She asked for her postal vote to be sent to the address where she is enrolled. She said her son had posted her completed ballot paper in the envelope provided before polling day.
[850]
[527] ECQ records show that the postal vote was issued but not returned. Her application was received on 18 March 2009 and scanned that day at 11.43am. The scan was assigned and processed and a declaration envelope sent to the printer queue at 12.30pm on 18 March 2009. The declaration envelope was printed at Chatsworth at 12.47pm on 18 March 2009. In accordance with Mr Ludwig's usual procedure, it would have been posted at 5 pm on 18 March 2009. The ECQ did not receive her completed postal ballot paper. It could not therefore count her vote.
[851]
[528] The second respondent required Ms Christadoulou for cross-examination but she was not produced. The second respondent submitted that there was no evidence as to how the elector knew her son had posted the ballot paper nor was there any evidence from her son confirming that he had posted it.
[852]
[529] The ECQ complied with its obligation by posting the voting material. Accordingly, the ECQ could not count her ballot paper because the ECQ did not receive it.
[853]
4. Coorey, Lisa Marie (5417) - 16 Araluen Place, Carindale
[854]
[530] Lisa Coorey did not give evidence in this matter. Evidence relevant to her vote was given by Mr Bibb who said that Ms Coorey had completed and signed a postal vote application. The application, which is before the Court, shows that she had signed a postal vote application on 7 March 2009. She gave as the reason for wanting a postal vote that she would be interstate, overseas, or more than 8 kilometres from a polling booth. It appears from the lists exhibited to Mr Caltabiano's affidavit that Ms Coorey's application for a postal vote was delivered by the LNP to the ECQ on 11 March 2009.
[855]
[531] Mr Bibb said that Ms Coorey had completed a voter survey in which she had indicated that she had received the ballot papers, completed them and posted them some three days before polling day.
[856]
[532] ECQ records show that the application was scanned on 13 March 2009 at 3.36pm. The scan was assigned and processed and the declaration envelope sent to the print queue at Chatsworth on 16 March 2009 at 2.16pm. The declaration envelope was printed in Chatsworth on 16 March 2009 at 6.09pm. In accordance with Mr Ludwig's usual procedure, it would have been posted at 9 am on Tuesday 17 March 2009. It could not have been received in the ordinary course of post prior to Wednesday 18 March 2009.
[857]
[533] ECQ records show that the ECQ received the declaration envelope back from Ms Coorey on 20 March 2009. It was rejected because the signature on it did not match the signature on the application form. Section 116(2)(c) of the Act provides relevantly that a ballot paper must be accepted for counting only if the person examining the declaration envelope is satisfied that the signature on the envelope corresponds with the signature on the application. A comparison of the two signatures shows the dissimilarities between them.
[858]
[534] Ms Coorey's ballot paper was correctly not counted.
[535] Ms Dionysius deposed in an affidavit she had filled out an application for a postal vote after the announcement of the 2009 State election. She said the reason for the postal vote application was due to her medical conditions. The postal vote application discloses that she suffers from bipolar disorder and multiple sclerosis. She said that she had faxed her postal vote application on about 6 March 2009 and had received her ballot papers from the ECQ on about 10 March 2009. She said she had filled out the ballot paper and sent it back.
[861]
[536] ECQ records show that an application was received and scanned for the electorate of Cleveland on 27 February 2009 at 7.52am. The scan was assigned and processed and a declaration envelope sent to Cleveland on that day. The declaration envelope was printed at Cleveland on 5 March 2009. The application for a declaration vote for Cleveland was deleted on 9 March 2009 because it was allocated to the incorrect electoral district.
[862]
[537] Another application was dated 6 March 2009 and appears to have been received by fax on that day and re-scanned at 4.08pm. A comparison of the application for a postal ballot made by Johnny Stevenson (who is referred to later in these reasons)[70] with her application for a postal ballot shows that Mr Stevenson witnessed her signature on her application. The scan was assigned and processed and the declaration envelope sent to the print queue at 2.55pm on 16 March 2009. The declaration envelope was printed at Chatsworth on 16 March 2009 at 5.42pm. In accordance with Mr Ludwig's usual procedure, it would have been posted at 9 am on Tuesday 17 March 2009. The ballot papers could not have been received by Ms Dionysius prior to Wednesday 18 March 2009.
[863]
[538] In oral evidence she said it was about 4 or 5 days between when she received her ballot paper on 10 March 2009 and sent it back so that was, to use her words, "roughly" on 14 or 15 March. She said she did not think that she would be wrong but then admitted that she was not sure. She said it was hard to remember because she has "multiple sclerosis in her brain" and has bipolar disorder which has an effect on her memory. She said she had filled in the ballot paper but could not remember signing anything. Nonetheless was sure she had put it in the post box.
[864]
[539] Unfortunately Ms Dionysius' evidence is unreliable. There is certainly no satisfactory evidence that she had signed the appropriate declaration on the envelope and had her signature witnessed in accordance with the requirements under s 110(5)(a). It appears that Ms Dionysius either forgot to post the ballot paper or, if she did, it went astray in the mail.
[865]
[540] In view of the unsatisfactory nature of her evidence, I am not satisfied that Ms Dionysius completed a postal ballot and returned it in accordance with the requirements of the Act.
[541] Ms Gallagher did not give evidence in these proceedings. Mr Bibb deposed in an affidavit that Ms Gallagher had completed and signed a postal vote application form. The application form is in the form provided by the LNP and was tendered in Court. It shows that she signed the application on 26 February 2009 and the reason which she gave for requesting a postal vote was that she (or someone she was caring for) was ill, in advanced pregnancy or disabled. Mr Bibb swears that:
[868]
"Mrs Cecilia Shepherd, a friend of Patricia Gallagher, indicated to an LNP volunteer that Patricia Gallagher is now very ill in hospital. Mrs Cecilia Shepherd was initially prepared to sign a statement to the effect that she saw Patricia complete the ballot paper and that she, Cecilia, mailed it several days prior to 21 March 2009.
[869]
Mrs Cecilia Shepherd was subsequently contacted in relation to Mrs Gallagher by an LNP volunteer and indicated that she no longer wished to make a statement in relation to the matter".
[870]
[542] The lists exhibited to Mr Caltabiano's affidavit show that Ms Gallagher's application for a postal vote was delivered by or on behalf of the LNP to the ECQ on 3 March 2009.
[871]
[543] ECQ records show that her application was scanned at 7.12pm on 11 March 2009.[71] The scan was assigned and processed and the declaration envelope sent to the print queue at 9.51am on 14 March 2009. The declaration envelope was printed at Chatsworth at 1.16pm on 14 March 2009. In accordance with Mr Ludwig's usual procedure, it would have been posted at 5 pm on 14 March 2009.
[872]
[544] The ballot paper inside the declaration envelope was returned to the returning officer and received by him on 3 April 2009. It was therefore correctly rejected at scrutiny because it was received too late. Under s 116(2)(d), the ballot paper had to be received by 6 pm on Tuesday 31 March 2009. It cannot be counted if it is received after that time.
[873]
7. Henricks, Katie Louise (11801) - 66 Marwood Street, Belmont
[874]
[545] Ms Henricks did not give evidence in this matter. Mr Bibb swore an affidavit in which he said that Ms Henricks had completed and signed a postal vote application form. He also swore that Ms Henricks had a telephone conversation with an (unnamed) LNP volunteer in which Ms Henricks had indicated that she had received the ballot papers and had voted.
[875]
[546] The application for a postal ballot is in the form provided by the ECQ. It was signed and dated on 19 March 2009 and the reason given for requesting the postal vote was that she would be "interstate, overseas or >8 km from a polling booth". The application appears to have been faxed to the ECQ, although the time and date of sending are not legible on the copy which was tendered.
[876]
[547] ECQ records demonstrate that Ms Henricks' application was created on the public website on 19 March 2009 at 12.53pm. Her application was scanned at 1.39pm on the same day. The scan was assigned and processed and the declaration envelope sent to the print queue at Chatsworth at 1.40pm on 19 March 2009. The declaration envelope was printed at Chatsworth at 2.48pm on 19 March 2009. The address for the declaration vote to be sent was given as 54B Gregory Street, Bowen Qld 4805. In accordance with Mr Ludwig's usual procedure, the voting materials would have been posted at 5 pm on 19 March 2009. No completed ballot paper was returned to the ECQ by Ms Henricks.
[877]
[548] The unsourced hearsay in Mr Bibb's affidavit cannot be given any weight. If the ECQ does not receive ballot papers it cannot of course count them. In the absence of any evidence from Ms Henricks, it is neither possible to say whether she was at the address nominated to receive the voting paper nor why she was unable to cast an absent vote at a polling booth in Bowen. I could not safely conclude that if she did receive the ballot paper, she nonetheless completed the declaration envelope in accordance with the requirements of the Act and returned it and the completed ballot paper to the ECQ. There is no evidence at all to that effect.
[878]
[549] The ECQ complied with its obligation by posting the voting materials to her under s 110(2).
[879]
8. Hoi, Nicholas Charles (12319) - 8 Sunset Place, Carindale
[880]
[550] Mr Hoi did not give evidence in these proceedings. Mr Bibb swore an affidavit in which he said that Mr Hoi had completed and signed a postal vote application. He said that Mr Hoi had indicated to an LNP volunteer (again unnamed) that he had voted before 21 March 2009 and that he had posted "it" before polling day. He had indicated that he did not wish to be contacted any further in relation to the matter.
[881]
[551] The application for a postal vote is in the form provided by the LNP and is on the same page as another application for postal vote for an elector who says that she is an elector for the electorate of Gaven. Mr Hoi nominated his electoral district as Carindale, which is a suburb but not an electoral district. It is the suburb in which he apparently lives. He gave his enrolment address as the address to which he wished the postal vote to be sent. He gave as his reason for requesting a postal vote that he would be "interstate, overseas or more than 8 kilometres from a polling booth".
[882]
[552] ECQ records show that the application was scanned on 13 March 2009 at 7.56am. The scan was assigned and processed and the declaration envelope sent to the print queue at Chatsworth at 12.21pm on 15 March 2009. The declaration envelope was printed at Chatsworth at 4.11pm on 15 March 2009. In accordance with Mr Ludwig's usual procedure, it would have been posted at 5 pm on that day. It was sent to the requested address.
[883]
[553] The voting material was rejected at scrutiny because it was received too late. The declaration envelope was stamped by Mr Ludwig as having been received by him on 1 April 2009. In these circumstances, Mr Hoi's ballot paper was correctly rejected because it was received after 6 pm on 31 March 2009.
[554] Lenora Hutchinson appears on the electoral roll with the surname "Wernet". Ms Hutchinson swore an affidavit in these proceedings in which she said she had filled out an application for a postal vote after the announcement of the 2009 State election. The application for a postal vote is in the name of Hutchinson, and says that her former surname was Wernet. It was apparently signed on 17 March 2009. She gives as her reason for requiring a postal vote that she would be on holidays. She asked for her voting material to be sent to 32 Dundas Street, Bacchus Marsh, Vic 3340.
[886]
[555] Ms Hutchinson deposed that she had posted her postal vote application on 17 March 2009. She said that she is currently on the roll under her former surname Wernet as stated on her application form. She said that the ballot papers were sent to Victoria as requested. She said she had received her ballot paper from the ECQ before the State election on 21 March 2009, and that she had posted her completed ballot paper and the envelope provided prior to the election along with her husband's ballot paper.
[887]
[556] Ms Hutchinson gave evidence by telephone. When asked if she remembered when she received the ballot papers she said:
[888]
"The day after the - I think it was on the Monday after the voting, I think it was on the 23rd. I was in Melbourne at the time."
[889]
When she was asked if it was too late to vote by the time she received it, she said, "Well, because I didn't receive it, we filled out - filled it in and take it off on the day we were going to leave". She agreed that she had received the voting material after 21 March 2009 and then filled it in after that date.
[890]
[557] ECQ records show that Ms Hutchinson's application was scanned when received by fax at 11.01am on 18 March 2009. The scan was assigned and processed and the declaration envelope sent to the print queue at Chatsworth at 11.41am on 18 March 2009. The declaration envelope was printed at Chatsworth at 11.54am on 18 March 2009. In accordance with Mr Ludwig's usual procedure, it would have been posted at 5 pm on that day. No ballot paper was received back by the ECQ.
[891]
[558] If the ECQ does not receive ballot papers back it cannot of course count them. It appears from her oral evidence that she did not vote until after polling day so even if she had returned the ballot paper it could not have been accepted because the declaration was signed too late: see s 116(2)(b) of the Act. In any event, it appears that her ballot papers were never received and that is why her vote was not counted. There was no breach of the Act by the ECQ.
[559] Hiralal Khatri deposed that he had filled out an application for a postal vote after the announcement of the 2009 State election. He said he had posted his postal vote application and received a ballot paper from the ECQ for the 2009 State election. He said that he had filled out the ballot paper and posted it back to the ECQ prior to polling day.
[894]
[560] It appears from the lists exhibited to Mr Caltabiano's affidavit that Mr and Mrs Khatri's application form was delivered to the ECQ by or on behalf of the LNP on 13 March 2009. The applications were in the form provided by the LNP. The reason given for the applications was that they would be "interstate, overseas or more than 8 kilometres from a polling booth". Mr and Mrs Khatri asked for their voting material to be sent to 304/3rd Floor, LG Complex, Opp Savras Hotel, Navsari, India 396445.
[895]
[561] ECQ records show that Mr Khatri's application was scanned on 17 March 2009 at 11.15am. The scan was assigned and processed and the declaration envelope sent to the printer queue at Chatsworth at 11.47am on 17 March 2009. The declaration envelope was printed at Chatsworth at 3.01pm on 17 March 2009. Mrs Khatri's declaration envelope was also printed at that time. In accordance with Mr Ludwig's usual procedure, they would have been posted at 5 pm on that day. The address to which he sent Mr Khatri's voting material was "304/3rd Floor LG Complex Opp Savras Hotel Nausare, 396445 India." The address to which he sent Mrs Khatri's voting material was "304/3rd Floor LG Complex Opp Sauras Hotel Navsari 396445 India". The spelling errors cannot be a source of criticism of the ECQ. The handwriting on the application was not easy to read and it appears that the copy of the application was one which was faxed from India on 13 March 2009 at 11.50am. I presume it was faxed to the LNP campaign office because it was delivered from there to the ECQ. In any event, the ballot papers reached Mr and Mrs Khatri in India.
[896]
[562] Mr Khatri gave oral evidence in Court through an interpreter. Mr Khatri said that he was in Navsari, India when he received his ballot paper. When he was asked when he received it he said, "I don't remember that well, but I remember before March got it". When he was asked how long it took for mail to come from Brisbane to Navsari, he said "8 to 10 days. Sometime it can take more than 10 days". He said that he had posted the ballot papers back by putting them in the envelope provided, which already had an address on it. He did not put a stamp on it. He said he also posted his wife's ballot papers in the same way. He said no one else was present when he signed the declaration from the ECQ.
[897]
[563] A copy of the type of envelope used by the ECQ was tendered in evidence. The envelope clearly indicates that no stamp is required if posted in Australia. The failure of Mr Khatri to put a stamp on the envelope containing his ballot paper and on the envelope containing his wife's ballot paper is likely to have resulted in its non-receipt by the ECQ.
[564] Pushpavati Khatri gave similar affidavit evidence to that of her husband. Ms Khatri also gave evidence in these proceedings through an interpreter. She said that she went to India in November 2008 and came back in May 2009. She said she received the ballot paper, signed it and then sent it. She did not know the date of the State election. When asked how long it took in her experience for mail to come from Brisbane to Navsari, she said "if it goes normal time it takes between 8 to 10 days unless it gets lost in some post. If anything happened in the post, then I don't know". She said it was her husband who posted it back. When she was asked whether things go missing in the mail between Australia and India she said, "Sometimes these things happen in India".
[900]
[565] The ECQ did not receive the ballot paper from either Mr or Mrs Khatri. In those circumstances, their votes were correctly not counted. The ECQ cannot count ballot papers which it does not receive.
[901]
12. Kuhn, Helga (15067) - 116/2 Ford Court, Carindale
[902]
[566] The applicant relied on an affidavit by Helga Kuhn but was unable to produce her for cross-examination as required by the second respondent. In her affidavit Ms Kuhn said that after the announcement of the 2009 State election she had filled out an application for a postal vote. She said that upon receipt of the ballot paper she filled it in and returned it by post.
[903]
[567] She exhibited a copy of her application for a postal ballot which appears to be in the form provided by the ALP. It was received by the returning officer at Chatsworth on 16 March 2009 as appears from the date stamp on it. She gave as the reason she needed a postal vote that she was ill, in advanced pregnancy or disabled, or that someone she was caring for was. She asked for the ballot paper to be posted to her enrolled address which she gave correctly.
[904]
[568] The ECQ records show that Ms Kuhn's application was scanned at 7.36pm on 16 March 2009 at Chatsworth and the scan assigned and processed and the declaration envelope sent to the print queue at 8.15pm on that day. The declaration envelope was printed at 9.32pm on 16 March 2009. In accordance with Mr Ludwig's usual practice, it would have been posted at 9 am on 17 March 2009. The completed ballot papers were not received by the ECQ.
[905]
[569] It follows either that Ms Kuhn is mistaken about filling in the ballot paper and returning it by post, or the ballot paper went astray in the post. As the completed ballot paper was not received, the ECQ could not count it.
[906]
13. Pelecas, Steven (21540) - 15 Uther Street, Carindale
[907]
[570] Steven Pelecas gave evidence by affidavit that, after the announcement of the 2009 State election, he had filled out an application for a postal vote. His application for a postal vote, dated 10 March 2009, is in the form provided by the LNP. He gave as the reason for requiring a postal vote that he would be working or travelling and unable to vote at a polling booth. He provided his enrolled address and then asked for the voting material to be sent to 12 Indus Street, Camp Hill 4152. He said he had applied for the postal vote with his partner, Rachelle Maxwell. He said they were then living at Camp Hill and he has since moved to an address at Cannon Hill. He said he received his ballot paper from the ECQ "a few days before" polling day and posted his completed ballot paper and the envelope provided "a few days before" 21 March 2009. The electoral roll for Chatsworth does not record the name Rachelle Maxwell.
[908]
[571] ECQ records show that the application was scanned on 19 March 2009 at 4.25pm. The scan was assigned and processed and the declaration envelope sent to the print queue at Chatsworth at 5.22pm on 19 March 2009. The declaration envelope was printed at Chatsworth at 7.59pm on 19 March 2009. In accordance with Mr Ludwig's affidavit, if the address to which the ballot papers were to be sent was within the electoral district of Chatsworth, then Mr Ludwig would have hand delivered it into Mr Pelecas' letterbox on the following day. However, an examination of the electoral boundaries on the ECQ website shows that Indus Street in the electoral district of Greenslopes, is just outside the electoral district of Chatsworth. It is therefore likely that Mr Ludwig posted it on 20 March 2009 at 9am. If that is the case, he could not have received it by polling day, the following day. It appears that Mr Pelecas was not living in the electoral district of Chatsworth. However, his name was on the roll and I am precluded by s 138(2)(b) from inquiring whether the electoral roll is in accordance with the Act.
[909]
[572] Mr Pelecas gave evidence by telephone. When he was challenged about when he received the ballot paper he admitted that he was not "100 per cent sure". He said it was not something that he "sort of remember[s]". He was not sure if he received it after the election although he doubted it. He did not remember how his ballot paper had arrived. He did not actually remember anything about the ballot paper. He said he had applied for a postal ballot because he is a business owner at a barber shop and had a very busy day at work. He was certain that he had posted it back.
[910]
[573] There are some difficulties in relying on Mr Pelecas' evidence because of his lack of recall and the inconsistency between his affidavit evidence that he posted the completed ballot paper a few days before 21 March 2009 and the objective evidence that he could not have received his ballot paper before 20 March 2009. I am not persuaded that he did vote by 6pm on 21 March 2009. If he did vote and post it back, then it appears to have been lost in the post. The ECQ is not responsible for the postal system and so had no choice but not to count his vote. There was no evidence that the ballot would in any event have complied with the requirements of s 116 of the Act.
[911]
14. Pugsley, Roger William (22567) - 53 Washington Avenue, Tingalpa
[912]
[574] Roger Pugsley gave evidence in these proceedings that after the announcement of the 2009 State election he had filled out an application for a postal vote. The application is in the form provided by the ECQ. He requested a postal vote because he would be overseas. The application is dated 12 March 2009.
[913]
[575] He said he had received his ballot paper from the ECQ before polling day on 21 March 2009. He said he had filled out the ballot paper and posted it to the ECQ two to three days prior to the election. The ECQ has no record of having received his completed ballot paper.
[914]
[576] ECQ records show that the application was scanned on 13 March 2009 at 2.20pm. The scan was assigned and processed and the declaration envelope sent to the print queue at Chatsworth on 13 March 2009 at 2.54pm. The declaration envelope was printed at 5.38pm on 13 March 2009. It was sent as requested to his enrolled address. In accordance with Mr Ludwig's usual practice, it would have been posted at 9 am on 14 March 2009, a Saturday. It is therefore likely to have been received no earlier than 16 March 2009.
[915]
[577] In his oral evidence Mr Pugsley said that he had left for overseas on 16 March 2009. He could not therefore have filled out the ballot paper and posted it to the ECQ two or three days before polling day. He described the ballot paper as having three squares on it. He said "you had to mark one, put it in the envelope, seal it and then post it off." He did not give evidence of his signature being witnessed on the declaration envelope. He said he could not remember posting this particular envelope but that he had a bundle of letters which he had posted before he went overseas.
[916]
[578] There is no evidence of any error or omission by the ECQ. It complied with its obligations by posting the material which was apparently received by Mr Pugsley. As he has no specific recollection of posting the ballot paper to the ECQ, it seems likely that the reason why the ECQ did not receive it was either that he inadvertently did not post it or that it went astray in the mail. In any event, the ECQ complied with its obligations under the Act and Mr Pugsley was not wrongfully denied a vote.
[579] Cristina Ramirez gave evidence by affidavit in which she said that after the announcement of the 2009 State election, she made an application for a postal ballot. That application is in the form provided by the ECQ. It states that the reason she qualified for a postal vote was that she would be "interstate, overseas or more than 8km from a polling booth". She gave her enrolment address as the address to which she wanted the postal ballot sent.
[919]
[580] The application was dated 19 March 2009. It appears from the fax imprint that it was faxed on 19 March 2009. She said she had faxed it when she became aware that she would be in Sydney on polling day. She said she had received the ballot paper which she completed and returned to the ECQ.
[920]
[581] ECQ records show that the application was created on the public website at 7.29pm on 18 March 2009. The application was scanned at 10.42am on 19 March 2009. The scan was assigned and processed and the declaration envelope sent to the print queue at 10.58am on 19 March 2009. The declaration envelope was printed at Chatsworth at 3.01pm on 19 March 2009. In accordance with Mr Ludwig's usual procedure, it would have been posted at 5 pm on that day. It appears that the earliest it could have been received in the mail was 20 March 2009. According to Ms Ramirez's evidence, she did receive it.
[921]
[582] Ms Ramirez gave evidence by telephone. She said she had received the ballot paper on the Friday before polling day. That was 20 March 2009. When she was questioned about what she recalled about the ballot paper she said she thought it might have been maroon or perhaps black. She thought there were four people running for the election. She said she had filled it in, signed the piece of paper and then put the ballot paper in the envelope and posted it. She said her husband was with her at the time but he did not make any mark on the material that she received. She said she posted it at the Tingalpa Post Office.
[922]
[583] She said that the postal vote was returned to her. She said:
[923]
"I put the postal vote in an envelope and I put the address on that envelope and it just got returned back to me saying there wasn't enough address on the envelope."
[924]
She said that she wrote the address herself. She said she got the address from the ECQ at Cannon Hill.
[925]
[584] As is apparent from her evidence, the ECQ did not receive the ballot paper. It did everything that it was required to do under the Act, which included enclosing a declaration envelope. It also enclosed a reply-paid self-addressed envelope to the returning officer at Chatsworth.
[926]
[585] For some reason Ms Ramirez did not use this envelope and either made an error in the address which she put on the envelope or Australia Post in error returned the envelope containing the ballot papers to her. In either event, there is no contravention of the Act by the ECQ. It is not possible for the ECQ to count a ballot paper which it does not receive. In any case, the evidence appears to show that the declaration envelope was not witnessed and so even if the ballot paper had been received by the ECQ, it would have been rejected at scrutiny. The ballot paper must be received in a declaration envelope which has been correctly filled out to ensure the integrity of the ballot.
[927]
16. Salmon, Stacey Louise (24305) - 25/24 Tallis Street, Wakerley
[928]
[586] Stacey Salmon gave evidence on affidavit in which she said that she had filled out an application for a postal vote after the announcement of the 2009 State election. She said she sent her application in the week before polling day, received the ballot paper, and then posted her completed ballot paper in the envelope provided at the post office at Wakerley "before the election", by which I take to mean before polling day.
[929]
[587] ECQ records show that Ms Salmon's application was in the ECQ form and was signed by her on 17 March 2009. She asked for it to be sent to her enrolled address, which she gave as 26/24 Tallis Street, Wakerley. She said on the form that she was an elector for the electoral district of Redland Bay. She is in fact on the electoral roll at Chatsworth where her address is given at Unit 25 rather than Unit 26, which was what she had put on her application for a postal ballot.
[930]
[588] The application was received by fax by the ECQ and scanned at 7.05pm on 17 March 2009. The scan was assigned and processed and the declaration envelope sent to the print queue at 8.49am on 18 March 2009. The declaration envelope was printed in Chatsworth at 9.53am on 18 March 2009. In accordance with Mr Ludwig's usual practice, he would have posted it at 5 pm on 18 March 2009. Accordingly, the earliest it could have been received at Ms Salmon's enrolled address was on 19 March 2009. Ms Salmon is noted on the electoral roll as not having voted because completed ballot papers were not returned.
[931]
[589] Ms Salmon gave oral evidence in these proceedings in which she said she had applied for a postal vote because she was doing shift work at Claremont Coal in Central Queensland. She said she did a seven-day-on and seven-day-off roster. She went to Claremont from a Monday night through to the Tuesday of the following week. She said she was on night shift on the night of the election. She was therefore in Claremont on 21 March 2009.
[932]
[590] Her evidence was that she had arrived in Claremont the Monday night before polling day; that is, on 17 March 2009. She confirmed that she was in Claremont when she sent in her application for a postal vote. She gave it to her supervisor to post because she had to stay at the camp.
[933]
[591] When she was asked about the ballot paper she said she was worried that she might be confusing it with the application. She said that she was by herself at the time she filled out the ballot paper. But when asked if it were possible that she might be confused between her postal vote application which was sent in and her actual ballot paper, she said that she wasn't and that she knew she had sent them both in. On re-examination, she was asked if she was certain that she had posted her ballot paper back. She replied:
[934]
"No, I posted it. I know I posted both of them. Oh, well I didn't post the first one. I gave it back to my supervisor. I know I came home, it was in the thing, I took it down and posted it."
[935]
When she was asked what she meant by "it was in the thing" she said that the voting paper was in her letterbox so she just filled it out and took it down to the post office box and posted it away. On her evidence, that must have been after polling day.
[936]
[592] Ms Salmon's ballot paper was not counted by the ECQ because the ECQ did not receive it. However, since it is clear from her evidence that she did not fill in the ballot paper until after polling day, it could not have been counted in any event. Ms Salmon was not denied a vote by any contravention of the Act by the ECQ.
[937]
17. Sandall, Annastasia (24355) - 807 New Cleveland Road, Gumdale
[938]
[593] Annastasia Sandall gave evidence by affidavit in these proceedings in which she said that she had filled out an application for a postal vote after the announcement of the 2009 State election. Her application for a postal vote is dated 19 March 2009 and it can be seen on the application that it was sent by fax from the Gumdale Post Office at 11.38am on that day. She said the reason why she qualified was that she was working from 8.00am to 6 pm on Saturday 21 March 2009. She asked for the ballot paper to be sent to her enrolled address.
[939]
[594] ECQ records show that her application was scanned at 2.35pm on 19 March 2009; the scan was assigned and processed and the declaration envelope sent to the print queue at Chatsworth at 3.37pm on 19 March 2009. Her declaration envelope was printed at 4.37pm on 19 March 2009. In accordance with Mr Ludwig's normal practice of leaving at 4.45pm to post any declaration envelopes which had been completed by him at 5 pm, Ms Sandall's voting material was posted to her at 5 pm on 19 March 2009. It could not have been received before 20 March 2009 in the ordinary course of post. Ms Sandall's vote was not counted because completed the ballot paper was returned by her.
[940]
[595] Ms Sandall gave oral evidence at the hearing of this matter by telephone. She was asked by Mr Rangiah SC if she had a copy of her affidavit with her to which she replied in very informal terms that she did not. He read to her the paragraphs of her affidavit in which she said she had received her ballot paper seven to ten days before the State election on 21 March 2009 and filled out her ballot paper and posted it on the same day.
[941]
"Yeah, okay, I did say that but I was misinformed. Because, when the Justice of the Peace and the counsellor for the electoral officer came around, because I had never done it before, I thought the paperwork I filled out was actually making my vote. When they came around to talk to me about all this stuff they informed me what I was doing was making an application for a postal vote and I didn't receive anything back in the mail at all. That is where that - that is my mistake, I was totally misinformed."
[942]
"They told me that the form I filled out was actually an application for a postal vote, it wasn't actually casting my vote. Then they asked me if I received anything back in the mail. Actually the guy that spoke to me this morning from - to get me to call you guys back, he actually informed me they actually sent out a ballot paper and I didn't receive one. I am a little confused about the whole of this stuff, hey."
[943]
[597] When she was asked about the statement in her affidavit that she received a ballot paper, she said:
[944]
"No I didn't actually say I received one. I said I went to the post office, filled out the paperwork and sent it the same day. I was on the assumption that that was me making my postal vote. I didn't understand that that was me applying for the postal vote."
[945]
When she was asked if she remembered when she applied for ballot paper, she said it was "about two weeks before the election" at the Gumdale Post Office. When she was told that the fax mark on her application showed that it was made on 19 March, she said that her dates were out; all she knew was she did it before the election.
[946]
[598] It can be seen that Ms Sandall's evidence was highly unsatisfactory. It appears that she thought that applying for a postal vote was the same as voting. The ECQ posted her a ballot paper and declaration envelope. I am not satisfied that Ms Sandall ever filled in a ballot paper, which is perhaps hardly surprising as she thought she had already voted. There was, accordingly, no completed ballot paper for the ECQ to count.
[599] Sadie Sessle deposed in an affidavit that she had filled out an application for a postal vote after the announcement of the 2009 State election. The postal vote application is in the form provided by the LNP. It was dated 1 March 2009. She requested a postal vote because she is disabled. The lists exhibited to Mr Caltabiano's affidavit show that her application for a postal vote was given to the ECQ by the LNP on 3 March 2009. She said that she received her ballot paper from the ECQ before polling day, filled it out and handed it to a Centrelink employee to be posted.
[949]
[600] ECQ records show that the application was scanned at 7.08pm on 11 March 2009. The scan was assigned and processed and the declaration envelope sent to the print queue at Chatsworth at 9.50am on 14 March 2009. The declaration envelope was printed at Chatsworth at 1.35pm on 14 March 2009. In accordance with Mr Ludwig's usual practice, it would have been posted at 5 pm on that day. 14 March 2009 was a Saturday, so the voting material is unlikely to have been received by Ms Sessle before 16 March 2009 in the ordinary course of post. Ms Sessle's vote was not counted because completed ballot papers were not received by the ECQ.
[950]
[601] Although Ms Sessle gave evidence that she had handed it to a Centrelink employee to be posted, there is no evidence that it was actually posted. Certainly Ms Sessle did not post it. There is no evidence of any error or omission by the ECQ which would account for the ballot paper not arriving at the ECQ or being processed by it. Accordingly, there has been no contravention of the Act.
[951]
19. Stevenson, Johnny (26484) - 13 Joyon Place, Tingalpa
[952]
[602] Johnny Stevenson deposed in an affidavit that after the announcement of the 2009 State election, he had filled out an application for a postal vote. The application for a postal vote is dated 6 March 2009. He deposed that he is a carer for someone with a disability. The witness to his signature is L Dionysius who was referred to earlier in these reasons.[72] Mr Stevenson's enrolment address is the same as Ms Dionysius' enrolment address. It would appear that he is her carer.
[953]
[603] He said in his affidavit that he had posted his postal vote application on 10 or 11 March 2009 and received his ballot paper from the ECQ on 16 or 17 March 2009. He said he had filled out the ballot paper on 18 or 19 March 2009 and posted his completed ballot paper and the envelope provided on 18 or 19 March 2009.
[954]
[604] ECQ records show that his application for a postal vote was in the ECQ form. The application was scanned at 4.13pm on 6 March 2009. The scan was assigned and processed and the declaration envelope sent to the print queue at 4.15pm on 6 March 2009. The declaration envelope was printed at Chatsworth at 1.54pm on 7 March 2009. In accordance with Mr Ludwig's usual practice, it would have been posted at 5 pm on 7 March 2009. It follows that Mr Stevenson's affidavit evidence that he posted his postal vote application on 10 or 11 March 2009 and received his ballot paper from the ECQ on 16 or 17 March 2009 cannot be correct.
[955]
[605] Mr Stevenson gave oral evidence in these proceedings. When asked in cross-examination about the ballot paper, he said he had a memory of filling in numbers on the ballot paper and sending it back. He said he thought he had posted it at the Tingalpa Post Office on "roughly the 15th, 16th, 17th something like that, of March, sorry. Sorry, 11 March I think it was, yeah". He said he had posted it himself. When he was asked if it was because of the length of time that had elapsed that he did not have good recollection of what he did in relation to this, he said:
[956]
"Because I haven't had any sleep last night. I am a carer and I work at night so I haven't had any sleep today. It was something like that. I think I got it on the 11th and sent it on the 15th?"
[957]
He then said he was "90 per cent sure it would have been about the 15th". He said there was "no chance" he had inadvertently forgotten to slip it into the mail. His oral evidence, in this regard, was quite different from the evidence sworn to in his affidavit.
[958]
[606] Unfortunately the contradictions in Mr Stevenson's evidence between his affidavit and his oral evidence and between his evidence and the ECQ records, which are not in dispute, means that his evidence is lacking in sufficient certainty to be relied upon. There is no evidence of any contravention by the ECQ of any requirements cast upon it by the Act.
[959]
20. Wijngaarden, Louise Martha (29809) - 71/110 Scrub Road, Carindale
[960]
[607] Louise Wijngaarden did not give evidence in this matter. Mr Bibb deposed in an affidavit that she had completed and signed a postal vote application and indicated to an LNP volunteer (unnamed) that she had received her ballot paper on 19 March 2009 and completed, signed and returned it on 20 March 2009. She indicated to the LNP volunteer that she did not wish to be contacted any further in regard to this matter.
[961]
[608] The application for a postal vote is dated 18 March 2009 and gives as the reason that she qualified for a postal vote that she would be interstate. She asked for the postal ballot to be sent to her enrolled address.
[962]
[609] ECQ records show that Ms Wijngaarden's application was scanned on 18 March 2009 at 3.03pm. The scan was assigned and processed and the declaration envelope sent to the print queue at Chatsworth at 3.21pm on 18 March 2009. The declaration envelope was printed at Chatsworth at 10.57pm on 18 March 2009. In accordance with Mr Ludwig's usual procedure, it would have been posted by him at 9 am on 19 March 2009, which means the earliest it could have been received in the ordinary course of post was 20 March 2009. It was received by the returning officer on 1 April 2009. As a result, pursuant to s 116(2)(d) of the Act the ECQ was unable lawfully to count it. ECQ records show that her ballot was rejected at scrutiny because it was received too late, on 1 April 2009. There is no evidence to suggest that Ms Wijngaarden was denied a vote in contravention of the Act.
[963]
[610] No electors were unlawfully denied a vote under this ground 4(d).
[964]
Ground 4(e): applications not in accordance with the Act
[965]
The first respondent failed to inform certain persons who made application for a declaration vote which contained an error in the completion of the application that his or her application contained such error, so as to give that person an opportunity to cast a vote for the electoral district of Chatsworth, in contravention of s 92 of the Act.
[966]
[612] I shall deal in turn with each of the five electors particularised under this ground.
[613] The applicant led evidence from Michelle Voevodin who resides at 26 Urquhart Street, Carindale. Ms Voevodin is the daughter of Beryl Corrie. Ms Voevodin said that after the announcement of the 2009 State election, she assisted her mother to fill out an application for a postal vote. She said her mother did not receive ballot papers from the ECQ prior to the election. She said she had contacted the ECQ on several occasions before polling day regarding her mother's ballot paper not arriving and was told "many different reasons" for a ballot paper not arriving. She said that at no stage was she advised that a new form was required to be filled out or that the existing postal ballot application form was in any way incomplete or not properly signed.
[969]
[614] In addition, the applicant relied upon an affidavit from Ms Corrie. In that affidavit she swears that her daughter filled out an application for a postal vote for her which Ms Corrie sent in for processing. She said she did not receive a postal vote from the ECQ and was not contacted by the ECQ in relation to the election prior to polling day. The application for a postal vote for Beryl Corrie was not signed by her, but by her daughter Ms Voevodin, on 27 February 2009. Ms Voevodin has handwritten beside her signature "daughter enduring power of attorney". As I have explained earlier,[73] the application for a postal vote was therefore not valid.
[970]
[615] Ms Corrie's application was delivered, according to the lists exhibited to Mr Caltabiano's affidavit, to the ECQ on 3 March 2009. ECQ records show that it was scanned on 7 March 2009 at 9.19 am and processed at 9.35 am on 7 March 2009. At the same time, a rejection letter was sent to the print queue at Chatsworth because the application was not signed by the elector. The rejection letter was printed at Chatsworth three times on 7 March 2009: twice at 8.14pm and once at 8.15pm. It said:
[971]
As the application is not signed by you the elector, it is returned for your attention. Please finalise your application and return it to me in the enclosed reply-paid envelope. Your application must be received by 6.00pm on 19/3/ 2009. Late applications cannot be processed.
[972]
Third parties are unable to sign this application on your behalf. A person granted Power of Attorney cannot sign this application in that capacity."
[973]
[616] The letter was posted, in accordance with the instructions on the application, not to Ms Corrie's enrolled address but, as she requested, to 26 Urquhart Street, Carindale, Queensland 4152.
[974]
[617] Ms Voevodin gave oral evidence in these proceedings. When she was asked by Mr Hinson SC on behalf of the ECQ what number she called to make enquiries, she said that she assumed that it would have been the number on the application form that she had filled out.
[975]
[618] As the ECQ submitted, Ms Corrie was advised by letter dated 7 March 2009 that her application was unsigned and she was invited to sign the application and return it in an enclosed reply-paid envelope. The ECQ did more than was required of it by statute to ensure that Ms Corrie was able to vote. It is possible that Australia Post did not deliver the letter addressed to Ms Corrie at Urquhart Street at Carindale as she does not live there, but that is speculation. In the circumstances, the ECQ did not contravene the Act in any way in relation to Ms Corrie's application for a postal vote as the application had been invalidly made.
[619] No affidavit was filed on behalf of the applicant in respect of this elector on behalf of the applicant. As mentioned earlier, according to Mr Wiltshire the scanned image of her signature on her postal vote application was unreadable and appears to have been rejected by the returning officer at scrutiny.
[978]
[620] ECQ records with regard to Ms Ferris show that her application was scanned on 2 March 2009 at 11.25am. The scan was assigned and processed and the declaration envelope was sent to the print queue at Chatsworth at 11.37am on 2 March 2009. It was addressed to Ms Ferris at her enrolled address. The ballot paper was rejected at scrutiny on 30 March 2009 at 4.07pm. The scan was restored and reviewed but the vote was rejected at scrutiny again on 31 March 2009 at 3.00pm because the scan was unreadable.
[979]
[621] It appears that Ms Ferris returned her ballot paper. It had been signed by her and appropriately witnessed. It was received by the returning officer on 16 March 2009. When the application was received, it was accepted as having been validly made and the ballot paper sent out in accordance with s 110(1), (1A) and (2) of the Act. The obligations of the elector on receiving the ballot paper are set out in s 110(5). The obligation with regard to signing is found in s 110(5)(a), which provides that the elector must sign the appropriate declaration on the declaration envelope before another elector or a person approved by the ECQ and have the other elector sign the envelope as witness. As Ms Ferris appears to have done this, the ballot paper should have been taken out of the declaration envelope and counted.
[980]
[622] The scanning is done by or on behalf of the ECQ. If the scan is unreadable, that is not the fault of the elector who otherwise complies with all the obligations cast upon that elector. Ms Ferris was denied a vote because of a failure to undertake the comparison of signatures required of the ECQ by s 116(2)(c). It has not been demonstrated that the signature on the declaration envelope does not correspond with that in the request. The rejection of Ms Ferris' vote was not because she had failed to comply with the requirements of the Act but because the administrative arrangements made for the election under s 92 of the Act, which included scanning applications for ballot papers, failed to work properly in her case.
[981]
[623] Mr Ludwig's usual procedure on receipt of postal ballots was to open the outer envelope to ascertain the contents. When he ascertained that the contents of an outer envelope contained a declaration envelope, he date stamped the declaration envelope and placed that envelope in a sealed box. He checked the signatures against the relevant postal vote applications between 18 and 20 March 2009. The votes that were determined to be valid were placed in a sealed ballot box to form part of the official count and scrutiny for the electoral district of Chatsworth. No criticism can be made of that procedure. It was not incumbent upon the returning officer to notify the elector if the scan was unreadable.
[982]
[624] However, where the elector has made a valid application for a postal vote and returned what appears to be a valid declaration envelope containing a ballot paper, but the returning officer is unable to validate the signature because the scan of the application is unreadable, the original application should have been obtained so that the signature of the elector could have been checked against the original application. There was no failure on the part of the elector in this case; rather, it was a problem with the administrative arrangements made by the ECQ and therefore Ms Ferris was probably wrongly denied a vote. I use the word "probably" since the original application for a postal ballot and the declaration envelope have not been produced to me for comparison. I could order that the signatures be compared, and if matching, that her declaration envelope be opened and her ballot paper be counted; however to do so in these circumstances would fail to maintain the secrecy of her ballot. I will therefore count Ms Ferris as an elector who was wrongfully denied a valid vote.
[625] According to ECQ records, an application for a postal ballot paper with regard to Shaun Goh was created on the public website on 1 March 2009 at 11.29am. It appears, however, that it was not printed out, signed, dated or sent to the ECQ before polling day. It was therefore not a valid application. The application was faxed to the ECQ and scanned on 24 March 2009 at 3.42pm and processed at 10.31am on 25 March 2009, when a rejection letter was sent to the print queue at Chatsworth.
[985]
[626] The application was not validly made and so no ballot paper was sent to Mr Goh at the address in Adelaide which was given on the application for a postal vote. There was no contravention of the Act by the ECQ in not sending ballot papers to Mr Goh.
[986]
4. Sheil, Warren John (25105) - 24 Greenslade Street, Tingalpa
[987]
[627] No evidence was led from Mr Sheil. The evidence from Mr Wiltshire was that Mr Sheil's signature on the declaration envelope did not match that of the elector on the postal vote application. Mr Sheil applied for a postal vote on the postal vote application form produced by the ALP. He did not sign it. Nor was it dated.
[988]
[628] The application was scanned by the ECQ on 10 March 2009 at 11.28am. The scan was assigned and processed at 1.22pm on 10 March 2009 and the declaration envelope sent to the print queue at Chatsworth at that time. A declaration envelope was printed at 1.09pm on 11 March 2009. The postal ballot was sent to his enrolled address but the declaration vote was rejected when it was returned because the application for postal vote was not signed.
[989]
[629] The contravention of the Act by the ECQ in this case was to send out a postal ballot when the application for postal ballot was not signed. The ballot paper was correctly rejected. There was no statutory or other duty upon the ECQ to inform Mr Sheil that he had failed to sign his application. He was not denied a vote because of a contravention of the Act by the ECQ.
[990]
5. Steinfeld, Maria*(26372) - 29 Hamilton Street, Tingalpa
[991]
[630] Maria Steinfeld's vote has already been dealt with under ground 4(a).[74] Ms Steinfeld was advised that an error had been made in the completion of her application for a postal vote. She was not denied an opportunity to cast a vote by any contravention of the Act on the part of the ECQ.
[992]
[631] Norah Gurtrude Ferris was denied a vote because the signature on the ECQ's scanned copy of her request for a ballot paper could not be read and compared with the signature on her declaration envelope and therefore her vote was wrongly rejected at scrutiny.
[993]
[632] Although I could order the opening of the declaration envelope so that her vote may be counted, I will not do so because, as she is the only elector in this category, to do so would fail to maintain the secrecy of her ballot.
[994]
Ground 4(f): electors not offered a declaration vote because not on the roll
[995]
Certain persons who were entitled to make a declaration vote pursuant to s 106(c) and 107(b) and s 108 of the Act were refused or not offered such a declaration vote, in contravention of s 108(2) and s 92 of the Act.
[996]
[634] I shall deal in turn with the two electors particularised under this category on the same basis as I did under ground 4(b).[75]
[997]
[635] Mr O'Brien deposed in an affidavit in this matter that he had been living at 83 William Street, Wakerley since December 2008 and believed that he was enrolled to vote in the electorate of Chatsworth. He said he completed his electoral enrolment form in "February 2008", a couple of days after the announcement of the State election, as a resident at 83 Williams Street. He said he had attended the Gumdale booth on polling day and was advised by the polling officer that he was not on the roll. He was advised that he could not fill in a declaration vote. Mr O'Brien was not called to give oral evidence.
[998]
[636] Mr Schultz gave evidence that he had searched the AEC's roll management system to ascertain the enrolment history of Mr O'Brien. The roll management system contains an historical record of changes to a person's electoral details. He also retrieved images of enrolment forms from the AEC's secure website. The AEC creates and stores images of all enrolment forms and changes to elector details. The searches carried out by Mr Schultz with regard to Mr O'Brien revealed that his name is Anthony Gerard O'Brien. He was enrolled at the address of 24 Ayrvale Avenue, Lake Gardens, Victoria at the close of rolls for the 2009 State election.
[999]
[637] Mr O'Brien completed an enrolment form, which was signed and dated on 26 February 2009, to change his enrolled address to 83 Williams Street, Wakerley. The enrolment form was received by the AEC and date stamped on 3 March 2009 after the close of rolls for the 2009 State election. There is no record of Mr O'Brien casting an "unenrolled" vote at the 2009 State election. On 2 July 2009, Mr O'Brien changed his address on the roll to 21 Matthews Way, Wakerley. This is his current enrolled address.
[1000]
[638] As Mr O'Brien was not enrolled at the time the rolls closed, he was not entitled to vote in the 2009 State election unless he was not on the electoral roll for the district because of official error. There was no official error made by the ECQ or the AEC so he was not unlawfully denied a vote. He was not entitled to a declaration vote.
[1001]
2. Cochrane, Mark Alan*(4909) - 18 Wallington Street, Tingalpa
[1002]
[639] I have already found[76] that Mark Cochrane was wrongfully denied a vote and it is not necessary to consider him again.
[1003]
[640] There are no electors not already referred to who were denied a vote under ground 4(f).
[1004]
Certain persons who had applied for a declaration vote, in the form of an ordinary postal vote, pursuant to s 105(1) and (2) and 110(1) and (1A) of the Act, who did receive a ballot paper and declaration envelope, and upon receiving it complied with the requirements of s 110(5) of the Act, returned the declaration envelope and ballot paper, the ballot papers were not accepted for counting, in contravention of s 116(2) of the Act, and the ballot papers were not counted in contravention of s 119(1), (3)(c), (4)(c) and (d) of the Act.
[1005]
[642] It is important to recognise, as I have previously observed, that s 116(2)(c) provides that a ballot paper must be accepted for counting only if the person examining the declaration envelope is satisfied, where the declaration on the envelope was witnessed by a person other than a member of the ECQ staff, that the signature on the envelope corresponds with that in the application (and that the requirements of s 110(5)(d) are met). It is therefore the satisfaction of the person examining the declaration envelope rather than the satisfaction of the Court that is required. That is the distinction between this process and the process of deciding whether a ballot is formal or informal which, as Thomas J held in Re Maryborough Election Petition[77] is a process of merits review undertaken by the Court. The Court would have to be satisfied that the decision examining the declaration envelope was attended by an error of law before that decision can be impugned.
[1006]
[643] If the Court rules that any of these ballots ought to have been accepted for counting, the Court may order the sealed declaration envelopes to be opened and the votes taken into account in determining the outcome of the case.
[1007]
[644] I shall deal in turn with the six electors said to fall within this category.
[1008]
1. Kiorgaard, Donald Norman Gregory (14678) - 2 Norham Court, Carindale
[1009]
[645] Donald Kiorgaard did not give evidence in this matter. Mr Kiorgaard applied for a postal vote in the form provided by the ALP. He asked for the postal vote to be sent to his enrolled address, which was written as 2 Norman Court, Carindale. Veronica Kiorgaard, who resides at the same address, also applied for a postal vote on the same application. The electoral roll shows that she voted by postal vote. Both Mr and Mrs Kiorgaard signed their applications; however, his declaration envelope, which was received on 20 March 2009, was rejected at scrutiny because it was not signed. There was a cross marked on it. Mr Wiltshire's evidence was that Mr Kiorgaard's vote was rejected because the signature on the declaration did not match the signature on the postal vote application.
[1010]
[646] The ballot paper was correctly rejected, as Mr Wiltshire said, because the signature or mark on the declaration envelope did not match the signature on the application for a postal vote. Under s 116(2)(c) the signature on the declaration envelope must correspond with that on the application for a postal vote.
[1011]
2. Papadopoulos, John (21071) - 23 Braemar Place, Carindale
[1012]
[647] Mr Papadopoulos deposed in an affidavit that, after the announcement of the 2009 State election, he had filled out an application for a postal vote. He received his ballot paper from the ECQ prior to polling day on 21 March 2009 and filled out the ballot paper and returned it a few days before polling day.
[1013]
[648] The application for a postal vote is in the form provided by the LNP. It was apparently signed by Mr Papadopoulos and dated 25 February 2009. ECQ records show that the application was scanned at 7.07pm on 11 March 2009. The scan was assigned and processed and the declaration envelope sent to the print queue at 9.36am on 14 March 2009. The declaration envelope was printed at Chatsworth at 7.41pm on 14 March 2009 and therefore, in accordance with Mr Ludwig's usual procedure, posted at 9 am on 15 March 2009. The declaration envelope was received by the returning officer on 20 March 2009.
[1014]
[649] Mr Wiltshire has sworn an affidavit in which he deposes that Mr Papadopoulos' vote was rejected at scrutiny because the signature on the declaration did not match the signature on the postal vote application.
[1015]
[650] The applicant asserted in submissions that the declaration was initialled in the same hand as the full signature found on the request but a comparison of them shows that the signature on the declaration envelope does not correspond with that in the request. Further, Mr Papadopoulos' signature on his affidavit is the same as the signature on his declaration envelope but bears no resemblance to the signature on the application for a postal vote apparently made by him.
[1016]
[651] Accordingly, Mr Papadopoulos' vote was correctly rejected at scrutiny by the returning officer who was not satisfied as he is required to be under s 116(2)(c).
[1017]
3. Dawson, Shane Francis (6488) - 940 Boston Road, Chandler
[1018]
[652] Shane Dawson gave evidence in these proceedings by way of affidavit. He exhibited his application for a ballot paper which was signed by him and dated 10 March 2009. He asked for the postal ballot to be sent to his enrolled address and said that the reason that he wanted a postal vote was that he would be out of the State. The form he used for applying for a postal vote was of the type provided by the ECQ.
[1019]
[653] Mr Dawson's application was received and scanned at Chatsworth on 13 March 2009 at 8.12am. The scan was assigned and processed and the declaration envelope sent to the print queue on 15 March 2009 at 8.55pm. The declaration envelope was printed at 1.53pm on 16 March 2009. In accordance with Mr Ludwig's usual procedure, it would have been posted at 5 pm on that day.
[1020]
[654] The declaration envelope was received back on 26 March 2009 by the returning officer and rejected at scrutiny because the signatures on the application and the declaration envelope did not match as they are required to do under s 116(2)(c) of the Act. Mr Wiltshire swore an affidavit in which he deposed that that was why the vote was rejected at scrutiny. Mr Dawson's excuse for not voting was also accepted on that date.
[1021]
[655] The signature on Shane Dawson's declaration envelope bears no relationship to the signature on his application for a postal ballot. The applicant submitted that the declaration is signed with Mr Dawson's full signature recognisably in the same hand as the initial found on the request. That is by no means obvious and for the returning officer to have accepted the vote given the dissimilarity of the signatures would have been in contravention of the Act.
[1022]
4. Dransfield, Richard Jack (7330) -12 Underwood Street, Wakerley
[1023]
[656] A document in the form of an affidavit was filed by the applicant with regard to Mr Dransfield's evidence. It is witnessed by a Justice of the Peace as sworn by him on 7 July 2009. However, it has not been signed by him. Handwritten on the form of affidavit on each page are the words:
[1024]
"This is to certify that Richard Dransfield is unable to make a mark or signature and he agrees with the contents of this document and has authorised his wife Marlene Dransfield to sign on his behalf."
[1025]
Unfortunately no one has signed that note. I do not know if it was written by Marlene Dransfield or by someone else as it has not been signed. I will nevertheless consider the contents of this document as the Court is not bound by technicalities, legal forms or rules of evidence (s 134(2) of the Act). It does, however, affect its weight.
[1026]
[657] Attached to that form of affidavit are the applications for postal votes by Richard Dransfield and Marlene Dransfield. They requested postal votes because they would be "interstate, overseas or more than 8kms from a polling booth". The form of the postal vote application is the LNP form. Both Mr and Mrs Dransfield appear to have signed the application in the appropriate place and dated it 25 February 2009.
[1027]
[658] Mrs Dransfield is recorded as having voted by postal vote but Mr Dransfield's vote was rejected at scrutiny. Mr Wiltshire has sworn that Mr Dransfield's vote was rejected at scrutiny because the signature on the declaration did not match the signature on the postal vote application.
[1028]
[659] The decision by the returning officer appears to have been clearly right as a comparison of the signature on the application and the signature on the declaration envelope demonstrates. The applicant has not submitted that the signatures are the same but rather relies on the affidavit. The submission that Mr Dransfield has deposed that he had signed the declaration envelope cannot be accepted when one compares the two signatures. Mr Dransfield's postal ballot paper was properly rejected.
[1029]
5. McKinnis, David Leslie (17301) - 58 Amersham Crescent, Carindale
[1030]
[660] David McKinnis gave evidence by affidavit in this matter in which he said he had filled out an application for a postal vote after the announcement of the 2009 State election. He said he had posted his postal vote application and received his ballot paper from the ECQ on 18 March 2009. He posted his completed ballot paper and the declaration envelope provided before 21 March 2009.
[1031]
[661] Mr McKinnis' application for a postal vote was in the form provided by the LNP. It was signed and dated 25 February 2009 and the reason given for requiring a postal vote was that he would be interstate, overseas or more than 8 kilometres from a polling booth. It appears that Mr McKinnis' application for a postal vote was delivered by or on behalf of the LNP to the ECQ on 3 March 2009.
[1032]
[662] In the list exhibited to Mr Caltabiano's affidavit the electors are described as "Mrs McKinnis and Family" at the address of 58 Amersham Crescent. Moira McKinnis and David McKinnis are the only persons with the name McKinnis on the electoral roll at that address. Mr Caltabiano's list includes two persons called Ms Smith at the same address. They may be the persons referred to as the family of Mrs McKinnis. This was an example put to Mr Caltabiano in cross-examination of the way in which the lists exhibited to his affidavit were not a precise accounting of the number of applications for postal ballot that were delivered by the LNP to the ECQ.
[1033]
[663] The signature on the declaration envelope bears no relationship to the signature on the application for a postal vote. Mr McKinnis did not swear that he had signed the declaration envelope so I infer that the signature on the application is his and the apparent signature on the declaration envelope is not his.
[1034]
[664] Mr Wiltshire has sworn an affidavit in which he deposes that Mr McKinnis had his vote rejected at scrutiny because the signature on the declaration by the elector did not match that of the elector on the postal vote application. The applicant submitted that the signatures on the application and on the declaration envelope were recognisably in the same hand. That submission cannot be accepted. The ballot paper was correctly rejected by the returning officer at scrutiny.
[1035]
6. Dawson, John (6473) - 19 Emcona Street, Tingalpa
[1036]
[665] John Dawson deposed in an affidavit that he had filled out an application for a postal vote after the announcement of the 2009 State election. He said he had posted his postal vote application on 10 March 2009 and received a ballot paper from the ECQ on 17 March 2009. He said he had posted his completed ballot paper and the declaration envelope immediately after receiving it.
[1037]
[666] Mr Dawson's application for a postal vote is on the same page as that of Carol Anne Dawson[78] who resides at the same address. Carol Dawson is noted on the electoral roll as having voted by postal vote. Each had signed the application at the appropriate place and dated the application 10 March 2009. The reason provided for requiring postal votes is that they would be working or travelling and unable to vote at a polling booth. The applications are stamped and dated as received on 17 March 2009 by the returning officer for Chatsworth.
[1038]
[667] Mr Ludwig gave evidence about the postal vote applications of Carol Anne Dawson and John Dawson. He recognised that the date stamp on their applications was similar to his own and he said the initials on it would have been one of his staff. ECQ records show that the application from John Dawson was scanned at Chatsworth on 17 March 2009 at 9.38am. The scan was assigned and processed at 9.52am on 17 March 2009 when the declaration envelope was sent to the print queue. It was printed one minute later and, in accordance with Mr Ludwig's usual practice, would have been posted at 5 pm on 17 March 2009. It is apparent from the ECQ records that John Dawson was mistaken in thinking that he had received his ballot paper from the ECQ on 17 March 2009 but he conceded in cross-examination that it could have been a day either side of that.
[1039]
[668] It appears from Mr Caltabiano's affidavit that the applications of Mr and Mrs Dawson for a postal vote were delivered by the LNP to the ECQ on 17 March 2009. Mr Caltabiano must be mistaken about that. Their applications were delivered to the returning officer at Chatsworth.
[1040]
[669] Mr Wiltshire has sworn an affidavit in which he deposes that John Dawson's postal vote was rejected because the signature on his application form did not match the signature on the declaration envelope. A further affidavit was filed by Mr Wiltshire in which he refers to his earlier affidavit and says a further check of ECQ records showed that Mr Dawson's postal vote was not admitted in the count in error. It was rejected at scrutiny on 31 March 2009. It was said that the wrong scan was identified at scrutiny and then the scan not located. This is not an adequate reason for rejecting a postal vote.
[1041]
[670] It is apparent that John Dawson was denied a vote in error by the ECQ. I could order the opening of his declaration envelope and the counting of his vote so long as to do so would not endanger the secrecy of the ballot. As there are so few electors in this category, I believe that to order the opening of the declaration envelope might well fail to maintain the secrecy of the ballot. However, it is appropriate to count John Dawson as an elector who was denied a vote because of a contravention by the ECQ.
[1042]
Ground 4(h): persons who were entitled to vote were prevented from voting because of advice given by the ECQ and/or failure to advise of the way those persons could vote
[1043]
Certain persons who were entitled to vote in the electoral district of Chatsworth were prevented from voting because of advice given by staff of the first respondent and/or the failure of those staff to advise of the ways in which those persons could vote as the election, in contravention of s 92 of the Act.
[1044]
[672] I shall deal in turn with each of the nine electors particularised in this ground.
[1045]
1. Bignell, Allan Leonard (1952) - 9 Windermere Crescent, Carindale
[1046]
[673] Allan Bignell deposed in an affidavit that he had applied for a postal vote but was told that there would not be enough time to receive the ballot paper before he and his wife left for overseas on 5 March 2009. He said he was told that they would be able to vote at the Abu Dhabi embassy. In fact, the ECQ website states that voting could only occur in Abu Dhabi at the office of the Queensland Trade and Investment Commissioner. Thus, Mr Bignell said that when he rang the embassy he was told that they could not help him and that they knew nothing about a Queensland State election. He said he did not receive a ballot paper at all from the ECQ for the 2009 State election and as a result he did not vote.
[1047]
[674] Mr Bignell also provided a letter dated 20 May 2009 addressed "to whom it may concern" signed by him and Linda Gray. It says:
[1048]
"Just a brief detail of our experience with trying to vote prior to the election. I rang the electoral commission on behalf of myself and my wife (Linda Gray) and told them I was going overseas and required a postal vote for both of us but was told there would not be enough time to get a postal vote to us as we left on the 5th March. They enquired where we were going and I told them to Abu Dhabi and I was told there was an embassy there and was given the name of Susan Rae and a phone number. I rang this woman and she said she could not help us and didn't even seem to be aware there was a Qld election happening. We therefore unable to vote which we found very disappointing."
[1049]
[675] The ECQ records show that a telephone call was received at the call centre on 2 March 2009 at 9.35am. An excuse was created awaiting processing. The comments recorded were that he was "leaving to go overseas on the 5th and won't return until after the 21st". On 7 March 2009 that excuse was accepted and Mr Bignell was excused from voting.
[1050]
[676] In oral evidence, Mr Bignell said that he left for overseas on 5 March and returned after polling day. He said he did not put in an application for a postal vote because of what he was told by the ECQ: that is, that there would not have been enough time. When he rang on 2 March 2009, nominations had not yet closed. However, he would have been able to make an application for a postal vote on that date. It does appear, as was submitted by the applicant, that the ECQ could possibly have produced ballot papers and declaration envelopes for Mr Bignell and Ms Gray on 4 March 2009 in time for them to participate in the election before leaving Australia. It is true that they did not make an application for a postal vote but that was because they were informed that it was too late to do so by the ECQ. However, ballot papers were not generally available until 5 March so it is also possible that the ballot papers could not have been delivered to them in time to vote. Pre-poll voting did not start until 9 March 2009.
[1051]
[677] However, an alternative way of voting was suggested to them which should have enabled them to vote. The advice given that they could vote at the embassy in Abu Dhabi turned out to be incorrect as, when Mr Bignell rang, the relevant person did not know about the Queensland State election. The person in Abu Dhabi to whom Mr Bignell says he spoke - Susan Rae - is listed on the ECQ website as being the Queensland Trade and Investment Commissioner herself. Mr Bignell's evidence that he spoke to her was uncontradicted. The ECQ must be taken to be responsible for the advice given to him in Abu Dhabi and so Mr Bignell was wrongfully denied a vote.
[678] The evidence with regard to Mr Chatterjee has already been referred to under ground 4(a). As I held there,[79] I am not satisfied that Mr Chatterjee was told by the ECQ that there was no early voting in Queensland. Accordingly, he was not prevented from participating in the election by any failure on the part of the ECQ.
[1054]
3. Gray, Linda (10355) - 9 Windermere Crescent, Carindale
[1055]
[679] Ms Gray relied upon the advice given to the ECQ to her husband Allan Bignell. She was excused from voting in the same way as Mr Bignell was excused. However, like Mr Bignell, she did not wish to be excused; she wished to vote and she was denied the opportunity to vote because of incorrect advice given to Mr Bignell by the embassy in Abu Dhabi for which the ECQ must accept responsibility.
[1056]
4. Little, Rochelle Anne*(16114) - 30 Melbourne Avenue, Camp Hill
[1057]
[680] The evidence with regard to Mrs Little has already been dealt with under ground 4(a).[80] There was no obligation on the ECQ to expedite the sending of declaration votes to either Mr or Mrs Little or to inform them of any other means by which they could before their departure from Australia. Those matters are clearly set out on the publicly available website of the ECQ. There is no obligation on the ECQ to ring persons who are travelling overseas shortly after the close of nominations to tell them of the means by which they can vote other than postal votes. The postal votes were sent to her on 13 March 2009. If this was considered to constitute delay, then it cannot be the subject of a Court order because of s 137(1) of the Act.
[1058]
5. Little, Timothy John*(16116) - 30 Melbourne Avenue, Camp Hill
[1059]
[681] For the same reasons referred to with regard to Rochelle Little,[81] I am not satisfied that any absences, errors or omissions by the ECQ which are capable of remedy in these proceedings prevented Mr or Mrs Little from participating in the election.
[1060]
6. Walters, Alan Wayne*(28989) - 22 Summit Street, Belmont
[1061]
[682] Evidence with regard to Mr Walters has already been dealt with under ground 4(a). As I there found,[82] there was no contravention of the Act by the ECQ.
[1062]
7. Walters, Donna Maree*(28993) - 22 Summit Street, Belmont
[1063]
[683] Evidence with regard to Donna Walters has already been dealt with under ground 4(a). As I there found,[83] there was no contravention of the Act by the ECQ.
[685] Evidence with regard to Ms Khatri has already been dealt with under ground 4(d).[85] There was no contravention of the Act by the ECQ.
[1068]
[686] I am satisfied that Allan Bignell and Linda Gray were denied the opportunity to vote because of incorrect advice given to them in Abu Dhabi for which the ECQ must accept responsibility.
[1069]
Certain votes which were formal votes for the applicant were not counted in her favour and certain votes which were informal votes were counted in favour of the second respondent Mr Kilburn in contravention of s 115 and s 119(1), (3)(c) and (4)(c)and (d) of the Act.
[1070]
[688] For a ballot paper to be counted as formal under the Act for the purpose of determining the voter's first preference, the ballot paper must have effect to indicate a vote. In order to have effect to indicate a vote, the ballot paper must:[86]
[1071]
have the number 1 written by the elector in the square opposite the name of only one candidate to indicate the elector's preference for the candidate (s 113(2)); or
have a tick written by the elector in the square opposite the name of only one candidate to indicate the elector's preference for the candidate (s 113(2)); or
have a cross written by the elector in the square opposite the name of only one candidate to indicate the elector's preference for the candidate (s 113(2)); or
contain other writing or marks that indicate the voter's intended preference (s 114(1)(a)); or
have the number 1 written by the elector in the square opposite the name of a candidate to indicate the elector's first preference for the candidate and the number 2 in another square to indicate the order of the elector's preferences for 1 or more (but not necessarily all) of the other candidates (s 113(3)(a), (b)(i)); or
have a tick written by the elector in the square opposite the name of a candidate to indicate the elector's first preference for the candidate and the number 2 in another square to indicate the order of the elector's preferences for 1 or more (but not necessarily all) of the other candidates (s 113(3)(a), (b)(i)); or
have a cross written by the elector in the square opposite the name of a candidate to indicate the elector's first preference for the candidate and the number 2 in another square to indicate the order of the elector's preferences for 1 or more (but not necessarily all) of the other candidates (s 113(3)(a), (b)(i)); or
have the number 1 written by the elector in the square opposite the name of a candidate to indicate the elector's first preference for the candidate and the numbers 2, 3 and so on in other squares to indicate the order of the elector's preferences for 1 or more (but not necessarily all) of the other candidates (s 113(3)(a), (b)(ii)); or
have a tick written by the elector in the square opposite the name of a candidate to indicate the elector's first preference for the candidate and the numbers 2, 3 and so on in other squares to indicate the order of the elector's preferences for 1 or more (but not necessarily all) of the other candidates (s 113(3)(a), (b)(ii)); or
have a cross written by the elector in the square opposite the name of a candidate to indicate the elector's first preference for the candidate and the numbers 2, 3 and so on in other squares to indicate the order of the elector's preferences for 1 or more (but not necessarily all) of the other candidates (s 113(3)(a), (b)(ii)); or
[1072]
[689] A ballot paper is nevertheless counted as informal under the Act if:
[1073]
it contains any writing or mark by which the elector can be identified (s 114(1)(b)); or
it contains 2 or more squares in which the number 1 is written or marked (s 114(2)(a)); or
[1074]
3. it does not have effect to indicate a vote (s 114(5)).
[1075]
[690] The Cth Act contains significant differences. In particular, the election for the House of Representatives is by compulsory preferential voting and not by optional preferential voting as in Queensland. The principal criterion for determining whether or not a vote is informal is found in s 268(3) of the Cth Act, which provides:
[1076]
"A ballot-paper shall not be informal for any reason other than the reasons in this section, but shall be given effect to according to the voter's intention so far as that intention is clear."
[1077]
[691] The Queensland Act refers to the voter's intention, but only in the context of an elector making "other writing or marks that indicate the voter's intended preference or intended order of preferences" in s 114(a). While certainly important, that does not affect the principal criterion for determining whether a vote is formal or informal. That criterion is found in sub-ss 114(4) and (5), which bear repeating:
[1078]
"(4) If a ballot paper has effect to indicate a vote, it is a formal ballot paper.
[1079]
(5) If a ballot paper does not have effect to indicate a vote, it is an informal ballot paper."
[1080]
[692] Accordingly, whilst cases decided by a Court of Disputed Returns with regard to the Cth Act are very useful, the difference in criteria must be kept steadily in mind.
[1081]
[693] When the Court of Disputed Returns is required to look at ballot papers to determine whether or not they should be counted as formal or informal and, if formal, for which candidate the ballot should be counted, the Court of Disputed Returns acts on its own opinion.[87]
[1082]
[694] In examining the ballot papers in issue, I intend, as Ambrose J did in Tanti v Davies (No 3),[88] to follow the principle stated in Kane v McClelland:[89]
[1083]
"Doubtless placing the first and second consecutive number in the squares opposite the candidates' names in the manner directed by s 123(1)(a) is to be expected and prima facie obedience to that direction must be looked for, but it is another thing to say that every deviation from its correct application spells informality or indeed that it is the only thing that is capable of sufficiently indicating the voter's intention. But what it clear is that the intention must be indicated so that it is not left to inference, still less conjecture, that it is expressed or indicated in a way that leaves it indisputable."
[1084]
[695] The most important principle to be applied by the Court in forming an opinion of whether a particular ballot paper is formal or informal is the principle in favour of preserving the franchise so that where the ballot paper has effect to indicate a vote then doubtful questions of form should be resolved in favour of the franchise. This principle was stated by Isaacs J in Kean v Kerby[90] where his Honour, sitting as the Court of Disputed Returns, in considering a vote which had been rejected, held:
[1085]
"Acting on the same principles as with regard to the first, and in favour of conserving the franchise, so far as the law allows me, to every elector who intends to vote, I think I should ... resolve a doubt as to form in favour of the substantial right to vote."
[1086]
[696] This principle was reiterated by Gummow J in Langer v The Commonwealth,[91] where his Honour referred to the Commonwealth statutory provisions which ameliorated the strict effect of s 240 of the Cth Act. His Honour there said:
[1087]
"These qualifications 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."
[1088]
[697] This principle has more recently been accepted by Tracey J in Mitchell v Bailey (No 2)[92] where his Honour referred to what he said were the two cardinal principles identified by Gummow J in Langer. Those were, first, that the ballot, being a means of protecting the franchise, should not be made an instrument to defeat it; and secondly, that doubts as to form should be resolved in favour of the franchise. The second is an interpretative principle which follows as a matter of logic from the principle of conserving the franchise wherever possible.
[1089]
[698] Tracey J identified other subordinate principles which assist in giving effect to what he referred to as the two cardinal principles. These are:
[1090]
"• When seeking to determine the voter's intention resort must be had, exclusively, to what the voter has written on the ballot paper.
[1091]
• The ballot-paper should be read and construed as [a] whole.
[1092]
The 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."[93]
[1093]
[699] With the necessary adjustments to take account of the differences in wording under the Queensland statute, this is the approach that I intend to undertake in examining the disputed ballot papers.
[1094]
[700] There are also, as Tracey J pointed out at [54], a number of matters to take into account in determining whether or not the voting intention has been expressed on the ballot paper or, to use the words of the Queensland Act, whether the ballot paper has effect to indicate a vote. They include the diversity of circumstances in the community. Voters come from a range of cultural and ethnic backgrounds so that numerals are written differently. Many voters are old or unwell and their writing may be feeble or less clear as a result. A voter may write something in a square of a ballot paper and realise that he or she has made a mistake and overwrite the original number to create a different number.
[1095]
[701] One of the most difficult questions which has exercised the Courts on many occasions is the tension between the two cardinal principles and the statutory prohibition contained in s 114(1)(b) of the Act that "the ballot paper must not contain any writing or mark (other than as authorised by this Act) by which the elector can be identified". As with other aspects of the legislation, the wording of statutes dealing with this prohibition varies. The authorities must be considered in the light of those differences in wording, as it is the language of the statute which must be applied.
[1096]
[702] In Blundell v Vardon,[94] the High Court followed the decision of Hawkins J (with whom Vaughan Williams J) agreed in the Cirencester Case,[95] where his Lordship said:
[1097]
"It was argued before us that if the marks were such as might lead to the identification of the voter, that would be quite sufficient to vitiate and render void the vote. That is not our opinion. It is not a question whether by some accident or other a challenged mark might possibly lead to the identification of the voter ... We think we ought to adhere to the language of the Statute itself, which says that the mark must be a mark by which the voter can (not might possibly) be identified; whether the mark is such, is a matter of fact." (emphasis in original)
[1098]
This decision was followed by Barton J in Kennedy v Palmer.[96]
[1099]
[703] The history of interpretation of a similar section was considered in detail by Thomas J in Re Maryborough Election Petition at 224-225. His Honour said:
[1100]
"Times and conditions have changed markedly since legislation for sought to invalidate votes which could be identified. Corrupt practices were then fairly common, and the mark of identification by the voter was the proof that he had earned his bribe or payment for voting for a particular candidate. At present there is a relatively tightly regulated voting system conducted under the supervision of authorised officials. The party system is more pronounced than it was in the 19th century, electoral officials, party officials and scrutineers are on the lookout for irregularities and improper practices, and as the population increases so does the anonymity of the persons who cast their votes."[97]
[1101]
[704] The Queensland Act at that time provided that votes shall be rejected where the returning officer formed the opinion that the mark or writing on it "will or may enable any person to identify the ballot-paper or the elector". His Honour expressed the view that a narrow approach should not be taken to the section and that it did not refer merely to possible identification. He expressed the view that "a real chance of identification must be apparent before a vote should be regarded as informal".[98]
[1102]
[705] In Re Maryborough Election Petition, Thomas J rejected ballot papers containing written messages because he took the view that they carried with them a real risk of identification.[99] However, the terms of the section have changed since then so that it no longer relies on the opinion of the returning officer and the words "will or may enable" have been replaced with the word "can". Accordingly it is no longer a reason to reject a ballot paper that there is on the ballot paper "any mark or writing which will or may enable any person to identify the ballot-paper or the elector".
[1103]
[706] In Owen v Dunn,[100] ballot papers containing alterations initialled by the voter were rejected but that was in a case where the statute provided that a:
[1104]
"ballot paper will be informal if it has upon it any mark or writing not authorised by the Act, which in the opinion of the returning officer will enable any person to identify the elector".
[1105]
The Queensland Act does not require that the elector can be identified by "any person". Tracey J in Mitchell v Bailey (No 2)[101]did not accept the view expressed in Re Maryborough Election Petition that a ballot must be rejected on the ground of possibility of identification if there were initials appearing on it.
[1106]
[707] In Kennedy v Palmer, Barton J had said with regard to a mark or writing which will enable a person to identify the voter:
[1107]
"I am therefore of opinion that it is not enough, in the absence or all extraneous evidence, to urge that there are marks which might by some possibility enable someone 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."[102]
[1108]
[708] In Mitchell v Bailey (No 2), Tracey J held:
[1109]
"[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 'someone' 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 [the electorate in question] 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 'someone' to whom Barton J referred.
[1110]
[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." [103]
[1111]
[709] I respectfully agree with the approach taken by Tracey J. It is a matter of considering each ballot paper individually to determine whether it falls foul of the statutory prohibition.
[1112]
[710] The parties were able to agree that certain votes that were counted as formal should have been declared informal and that certain votes that were declared informal should have been counted as formal.[104] One vote that was counted formal for Mr Kilburn should have been declared informal. One vote counted formal for Ms Caltabiano should have been declared informal. Twenty-four votes which were declared informal should have been counted for Mr Kilburn. Eighteen votes which were declared informal should have been counted for Ms Caltabiano. As a result, there will be a net gain to Mr Kilburn of 23 votes and a net gain to Ms Caltabiano of 17 votes. Mr Kilburn therefore has 13,584 votes and Ms Caltabiano 13,504 votes, giving a revised preliminary winning margin to Mr Kilburn of 80 votes.
[1113]
[711] The remaining 60 ballot papers in dispute are Exhibit 16 and copies of them are found in booklet form in Exhibit 15. The parties asked me to examine the original ballot papers to determine if there should be any change in their attribution. Of these, 25 were declared informal by the returning officer; 26 were counted as formal votes for Ms Caltabiano; and 9 were counted as formal votes for Mr Kilburn.
[1114]
[712] Although the authorities are useful in determining the approach taken by Court of Disputed Returns, what must guide my decision as to whether a particular ballot paper has effect as a formal or informal vote depends very much on the precise terms of the Act as to what constitutes a formal or informal vote.
[1115]
[713] The ballot papers fall into the following broad categories:
[1116]
1. 19 ballot papers which may contain "writing or a mark by which the elector can be identified";
[1117]
2. 14 ballot papers which can contain overwriting suggesting a change;
[1118]
3. 20 ballot papers containing marks other than numbers, ticks or crosses;
[1119]
4. Six ballot papers with marks or numbers repeated;
[1120]
5. One ballot paper with markings outside the squares.
[1121]
[714] The categories are not discrete, as some fall within more than one category. However, the categories are a useful way to consider them.
[1122]
1. Of the 19 ballot papers in the first category, seven were counted as formal votes for Ms Caltabiano, two as a formal vote for Kilburn and 10 as informal.
[1123]
2. Of the 14 ballot papers in the second category, six were counted as formal votes for Ms Caltabiano, five for Mr Kilburn and three informal.
[1124]
3. Of the 20 ballot papers in the third category, 12 were counted as formal votes for Ms Caltabiano, two for Mr Kilburn and six informal.
[1125]
4. All of the six ballot papers in the fourth category were declared informal.
[1126]
5. The one ballot paper in the fifth category was counted as a formal vote for Ms Caltabiano.
[1127]
[715] I shall refer to the votes by their page number in Exhibit 15.
[1128]
[716] 2. This voter has written the name of a cartoon character and a box underneath the names of the candidates. The additional name and box have then been crossed out. This could not be said to be a mark or writing from which the elector can be identified. This vote was correctly counted as a formal vote for Ms Caltabiano.
[1129]
[717] 4. This vote has the number 1 heavily scribbled out against Ms Caltabiano's name and a clear number 1 put in against Mr Kilburn's name. However, the crossing out of the mark against Ms Caltabiano's name is initialled. The second initial appears to be B but it is not possible to tell what the first initial is. Although the elector would be able to identify himself or herself from the initials, they do not appear to be initials by which any other person of the type authorised to see the ballot papers would be able to identify the elector. In those circumstances, the vote was wrongly counted informal and should have been counted as a formal vote for Mr Kilburn.
[1130]
[718] 5. This elector has whited out the numbers which were in the squares on the ballot and written the number 1 clearly against Mr Kilburn's name. Where the elector has whited out the numbers inside other squares the elector appears to have initialled those alterations. The initials are illegible and could be any letters of the alphabet. Accordingly, it could not be said that they represent a mark or writing from which the elector can be identified. As was conceded by the applicant, the ballot was wrongly counted informal and should be counted as a formal vote for Mr Kilburn.
[1131]
[719] 6. This ballot paper contains a misspelt obscenity against Mr Kiburn's name and other writing expressing the elector's view about the election. However, in the boxes a clear voting preference has been indicated. It cannot be said that the writing on the ballot paper is writing from which the elector can identified. The vote should not have been counted as informal but rather a formal vote for Ms Caltabiano.
[1132]
[720] 7. In this ballot paper the elector has changed the number inserted in the square opposite the name of Mr Zegenhagen and initialled it "Pa Jo". There are 376 electors on the Chatsworth electoral roll whose surnames begin with Jo. This was a postal vote. Of the 39 postal votes cast by people whose surname begins with the letters Jo, there is only one person whose first given name begins with the letters Pa. This ballot paper therefore does contain writing by which the elector can be identified and so was correctly declared informal.
[1133]
[721] 13. This ballot paper has a lewd drawing and an obscene description written on it but clearly has the number 1 written in the square opposite Ms Caltabiano's name. I am not of the view that this ballot paper contains any writing or mark by which the elector can be identified and so it was correctly declared as a formal vote for Ms Caltabiano.
[1134]
[722] 15. This ballot paper has put an extra box, with the word "me", among others, written next to it. That box has been ticked. Additionally, the elector has clearly written the number 1 in the square for Mr Kilburn and does not contain writing by which the elector can be identified. Accordingly this vote was correctly counted as a formal vote for Mr Kilburn.
[1135]
[723] 16. This ballot paper was clearly initialled "GK". It was submitted that there are 48 people with the initials GK in the electorate of Chatsworth. The vote was cast at the Whites Hill booth, which was allocated two certified lists, numbers 57 and 58. Of all the persons who voted at Whites Hill there is only one with the initials GK. The ballot therefore did contain writing by which the elector can be identified and was correctly declared informal.
[1136]
[724] 18. This ballot paper had various unintelligible line drawings and a message apparently to the candidate for whom the elector voted. She has also written on it a woman's name which, while not unusual, is not an extremely common name. It was therefore correctly in my view counted as informal. Because of the given name, the message to the candidate written on it and the knowledge of the booth at which the vote was cast, it contains writing by which the elector can be identified.
[1137]
[725] 22. This ballot paper has a political slogan written on it which shows that the person supports one side of politics. It clearly indicates a first preference for Ms Caltabiano and was correctly counted as a formal vote for Caltabiano. In my view it did not contain writing by which the elector can be identified.
[1138]
[726] 29. This ballot was cast by pre-poll voting in person. This vote has not been initialled but in fact signed with a full signature. In those circumstances it contains writing by which the elector can be identified and the vote was correctly declared informal.
[1139]
[727] 30. This ballot paper has a squiggle on the top right-hand side. It looks a little like the letter W but it is more likely that it is the kind of mark that is made when a person is trying to ensure that his or her pen is working. The vote clearly indicates a first preference for Mr Kilburn and, as the applicant conceded, should have been counted as a formal vote for Mr Kilburn rather than as an informal vote.
[1140]
[728] 31. This ballot paper has the number 1 outside the square opposite Mr Kilburn's name and a cross inside the square opposite Mr Kilburn's name. The 1 and the cross clearly identify an intention to vote for Mr Kilburn. It has initials over the box containing the cross which could be KY, KN or KM or perhaps even K7. It could not be said that the ballot paper contains any writing or mark by which the elector can be identified and therefore, as the applicant conceded, the vote should have been counted as a formal vote for Mr Kilburn rather than as an informal vote.
[1141]
[729] 33. This ballot paper was cast as an absent vote and has initials or the shortened form of a woman's given name. It was cast as an absent vote and therefore the person was likely to have been identified by the staff at the polling booth where it was cast. However, they would not have seen the ballot paper. It would have been put in a declaration envelope which would not have been opened until received at the electoral district of Chatsworth whereupon it would have been placed in a ballot box without looking at the ballot paper itself. In those circumstances it could not be said that there is writing by which the elector can be identified and the ballot paper should have been counted as a formal vote for Ms Caltabiano rather than as an informal vote.
[1142]
[730] 38. This ballot paper has a rather vulgar message written on it which appears to relate to the elector's attitude towards recycled water. However, the writing was not such that the elector could be identified. Accordingly this was correctly counted as a formal vote for Ms Caltabiano.
[1143]
[731] 40. This ballot paper contains extra writing expressing a forceful opinion about daylight saving. It clearly indicates a preference for Caltabiano. In my view, it does not contain any writing by which the elector can be identified. The view expressed is not an uncommon one. Accordingly, the ballot paper was correctly counted as a formal vote for Caltabiano.
[1144]
[732] 52. In this ballot paper the elector has obliterated the numbers 3 and 4 where they appear inside the square and has written 3 and 4 in the reverse order just outside the square. The numbers 1, 2 and 5 are clearly marked in the squares opposite each of the other three candidates. There can be no doubt that a first and second preference votes at the very least are clearly expressed. However, on this vote the initials RR are written where the changes were made. It was an absent vote. There are 1,514 electors on the rolls in the electorate of Chatsworth whose surname begins with the letter R. Of these 68 have a first given name which begins with the letter R. In these circumstances the ballot paper does not contain writing by which the elector can be identified and the ballot paper was correctly counted as a formal vote for Mr Kilburn.
[1145]
[733] 56. This voter filled in all the boxes on the ballot paper from 1 to 5. In addition the voter has added a drawing which may or may not have meaning. It does not, in my view contain a mark by which the elector can be identified and was correctly counted as a formal vote for Caltabiano.
[1146]
[734] 58. This ballot paper clearly votes 1 for Caltabiano and then contains a handwritten opinion about abortion. The opinion is not so uncommon as to be likely to identify the person who wrote it. I am satisfied that the ballot does not contain any writing by which the elector can be identified and this vote was correctly counted as a formal vote for Caltabiano.
[1147]
[735] 1. This ballot paper contains overwriting which shows that the elector wished to change or amend what appears on the ballot paper. It is clear from the ballot paper that the elector had first put 1 against the name of Caltabiano and then has crossed that out and put 1 Kilburn, 2 Cooney. It has effect to indicate a vote. It does not contain two or more squares in which the number 1 can be taken to have been written because it is obvious that the number 1 has been crossed out from the square opposite Ms Caltabiano's name. In my view this was incorrectly counted informal and should instead be counted as a formal vote for Mr Kilburn.
[1148]
[736] 24. This ballot paper contains a 1 in the square opposite the name of Mr Kilburn and a 2 in the square opposite the name of Ms Caltabiano which has then been covered over with pencil. Whether or not one regards that as an attempt to obliterate the number 2 to put 2 over whatever mark was previously there, the fact that there is only one number 1 on the ballot paper has effect to indicate a first preference vote for Mr Kilburn. This vote should not have been counted informal but should instead be counted as a formal vote for Mr Kilburn.
[1149]
[737] 27. This vote was a pre-poll vote in person. It clearly has the numbers 1 to 4 in the squares opposite the candidates but the number in the fifth square has been either obliterated or written unusually. It can be ignored because the ballot paper clearly indicates a first preference vote for Ms Caltabiano and it was correctly declared a formal vote for Ms Caltabiano.
[1150]
[738] 32. On this ballot paper the elector appears to have written 1 against Mr Cooney's name and then changed that to a 2. There is clearly a 1 on the square opposite the name of Mr Kilburn. Accordingly this was correctly counted as a formal vote for Mr Kilburn.
[1151]
[739] 35. This ballot paper has the numbers 1 to 4 clearly marked in squares opposite four of the candidates. In the case of the fifth candidate it appears that the number 5 has been written and then an attempt made to obliterate it. In such a case the voting intention is clear and it should have been counted as a formal vote for Mr Kilburn rather than as an informal vote.
[1152]
[740] 36. This ballot paper contains a 1 and a cross in the square opposite the name of Ms Caltabiano. This has the effect of indicating the voting preference of the elector and was correctly counted as a first preference vote for Ms Caltabiano.
[1153]
[741] 48. This ballot paper has the numbers 1 to 5 marked in the squares opposite the candidates; however, the number in the square opposite Ms Caltabiano's name was originally a 2. That has been overwritten to make it 1. This was correctly counted as a formal vote for Ms Caltabiano.
[1154]
[742] 49. In this case each square opposite a candidate has a number in it. The numbers 2, 3, 4 and 5 clearly appear against the names of four of the candidates and the number 1 against Mr Kilburn's name. That name has been overwritten but remains clearly a 1. In those circumstances it has the effect of indicating a vote for Mr Kilburn and was correctly as a formal vote for Mr Kilburn.
[1155]
[743] 50. The only square filled in this case is the square opposite the name of Mr Kilburn and has both a 1 and a cross in it. This appears to indicate the voter's preference for Mr Kilburn and was correctly counted as a formal vote for him.
[1156]
[744] 51. This ballot paper has the numbers 1 to 5 clearly written within the squares opposite the five candidates. A cross has also been more faintly marked where the numbers 1, 2 and 3 are strongly written. This was correctly declared to be formal vote for Kilburn.
[1157]
[745] 53. This ballot paper has the number 1 and a cross in the square opposite the name of Mr Kilburn and therefore has the effect of indicating a vote for him. It was correctly counted as a formal vote for Mr Kilburn.
[1158]
[746] 54. This ballot paper has the number 1 and a cross clearly indicated in the square opposite the name of Ms Caltabiano. It has the effect of indicating a vote for her and was correctly counted as a formal vote for her.
[1159]
[747] 59. This ballot paper has what appears to have started life as a tick in the square opposite Ms Caltabiano's name. It has then been heavily written over to look like either a blob or a 1. In my view it is a mark which indicates a preference for the candidate and therefore has effect to indicate a vote for Ms Caltabiano. The copy contained on page 59 of Exhibit 15 has what appears to be a tick next to Mr Kilburn's name. However, that mark is not contained in the original ballot paper tendered as part of Exhibit 16. I can only infer that the mark arose out of the process of photocopying. It can be ignored, with the result that the ballot paper was correctly counted as a formal vote for Ms Caltabiano.
[1160]
[748] 60. This ballot paper has a tick and a 1 in the square opposite the name of Ms Caltabiano. This had the effect of indicating a first preference vote for her and was correctly counted as formal vote for Ms Caltabiano.
[1161]
Category 3: ballot papers containing marks other than numbers, ticks or crosses
[1162]
[749] 3. This ballot paper has the number 1 marked in the square opposite Ms Caltabiano's name, and crosses in the squares opposite the names of Mr Kilburn, Mr Cooney and Mr Furze. It has a marking against the name of Mr Zegenhagen which could be a 1, a badly formed cross or a Y. In light of the clear "1" next to Ms Caltabiano's name, it would be unusual to regard the mark against the name of Mr Zegenhagen as a 1. Accordingly this is a ballot paper in which the number 1 is present only once and therefore indicates a first preference vote for that candidate. In my view, it was incorrectly counted as an informal vote and should be counted as a formal vote for Ms Caltabiano.
[1163]
[750] 8. This ballot paper was a vote taken in a declared institution. It has the numbers 1 to 4 written in a shaky hand but the numbers are clear. The number against Mr Kilburn's name is less clear but given the shakiness of the hand I infer that it was a 5. In any event the elector clearly indicates a first preference for Ms Caltabiano and the vote was correctly counted as a formal vote for Ms Caltabiano.
[1164]
[751] 10. This vote was cast as an electoral visitor vote. The only mark is in the square opposite the name of Ms Caltabiano. It is not a 1, a tick or a cross but nevertheless it is a mark which indicates the voter's intended preference and so was correctly as a formal vote for Ms Caltabiano.
[1165]
[752] 12. This ballot paper is marked in the squares opposite the names of Mr Kilburn and Mr Cooney. The number in the square opposite the name of Mr Cooney is a 2. The marking in the square opposite Mr Kilburn is not clearly any number. It looks most like a 3 but it is possible that it is a 1 or that it is just some other kind of mark or symbol. In those circumstances it does not clearly indicate a first preference vote and it was correctly declared to be an informal vote.
[1166]
[753] 14. This ballot paper has a mark only in the square opposite Mr Kilburn's name. I take that to be a mark that indicates the voter's intended preference and therefore it has effect to indicate a vote for Mr Kilburn. It was correctly counted as a formal vote for Mr Kilburn.
[1167]
[754] 17. This ballot paper only contains a mark in the square opposite Mr Kilburn's name. The whole square has been coloured in with pencil. This is a mark that indicates the voter's intended preference and therefore has effect to indicate a vote for Mr Kilburn. It was correctly counted as a formal vote for Mr Kilburn.
[1168]
[755] 20. This ballot paper contained a 1 in the square opposite Ms Caltabiano's name and an unusual marking against in the square opposite Mr Kilburn's name that looks more or less like a 2. This ballot paper was effective to indicate a first preference vote for Ms Caltabiano and was correctly counted as a formal vote for her.
[1169]
[756] 21. This ballot paper has what might be described as an egg-shaped blob in the square opposite the one candidate only. This mark is effective to indicate a preference for that candidate and was correctly as a formal vote for Ms Caltabiano.
[1170]
[757] 26. This ballot paper contains a number 1 in the square opposite the name of Mr Kilburn and a 2 in the square opposite the name of Mr Cooney. The other squares are completely coloured in. As there is only one square which contains the number 1 this ballot paper has effect to indicate a first preference vote for Mr Kilburn and should have been counted as a formal vote for him rather than as an informal vote.
[1171]
[758] 28. This ballot paper has a mark in only one square and that is a mark filling the whole of the square opposite the name of Ms Caltabiano. This has the effect of indicating a vote for Ms Caltabiano and was correctly accepted as a formal vote for her.
[1172]
[759] 37. This ballot has a diagonal mark in the square opposite the name of Ms Caltabiano. This is a mark which indicated the voter's preference for the candidate and so has the effect of indicating a vote for Ms Caltabiano. The ballot was correctly counted as a formal vote for Ms Caltabiano.
[1173]
[760] 39. This ballot paper also has a diagonal line in the square opposite the name of Ms Caltabiano. This was a mark which indicated the preference of the elector and so was correctly counted as a formal vote for Ms Caltabiano.
[1174]
[761] 41. Each of the squares opposite the candidates on this ballot paper contained a number and the numbers appear to go from 1 to 5. However, they also contain a circle. Nevertheless it is clear that there is only one number 1 in a square opposite a candidate and so this vote is effective to indicate the elector's preference for that candidate. This vote should be counted as a vote for Mr Kilburn rather than an informal vote.
[1175]
[762] 42. The squares in this ballot paper have been marked A, B, C, D and E. While the elector has not inserted a 1, a tick or a cross, the elector has inserted other marks that indicate the elector's intended order of preference and therefore should have been counted as a formal vote for Mr Kilburn rather than an informal vote. There is nothing derisory about using the first letters of the alphabet rather than numbers to indicate a preference.[105]
[1176]
[763] 43. This ballot paper contains a very thick downward stroke in the square opposite the name of Ms Caltabiano. I take this merely to be an emphatic 1. Number 4 is written in the square opposite Mr Kilburn's name but that can ignored. The ballot was correctly counted as a formal vote for Ms Caltabiano.
[1177]
[764] 44. This ballot has what appears to be question mark in the square opposite the name of Mr Kilburn and nothing else written in the other squares. This is not a mark that indicates the voter's preference for Mr Kilburn and so the vote was correctly counted as informal.
[1178]
[765] 45. This ballot has the numbers 1, 2, 3, 4 and 5 clearly in the squares opposite the candidates' names but the number 1 has a circle around it. This ballot paper nevertheless clearly indicates the order of preference of the voter and was correctly counted as a formal vote for Ms Caltabiano.
[1179]
[766] 46. This vote has the numbers 1, 2, 3 and 4 in the squares opposite the names of four of the candidates. The fifth square contains a rather unusual mark which may be a 5 but also looks like a cross. Whatever has been written in the fifth square there is only one number 1 and the ballot paper was effective to indicate a vote for that candidate. This vote was correctly counted as a formal vote for Ms Caltabiano.
[1180]
[767] 55. This ballot paper is only marked in the square opposite the name of one candidate but rather than a tick, a cross or a number 1, the mark appears to be a variation on a "v". This is, however, a mark which is sufficient to indicate the voter's intention to vote for that candidate and so the ballot was correctly counted as a formal vote for Ms Caltabiano.
[1181]
[768] 57. This ballot paper contains an unusual mark in one square only, the square opposite the name of Ms Caltabiano. It might be that the mark is an attempt to draw a bird or it might just be a thick squiggle. In any event only one square is marked and that is sufficient to indicate a preference for that candidate. The vote was correctly counted as a formal vote for Ms Caltabiano.
[1182]
Category 4: ballot papers with marks or numbers repeated
[1183]
[769] 9. This ballot paper contains the number 1 in two squares opposite two different candidates. Accordingly it must be counted as an informal ballot under s 114(2)(a). It was correctly declared an informal vote.
[1184]
[770] 11. This ballot paper has a cross in the squares opposite the names of two candidates; nevertheless a 1 in a circle has been put against the name of one of those candidates. This is a mark which indicates the voter's intended order of preference and therefore should have been counted as a vote for Ms Caltabiano rather than as an informal vote.
[1185]
[771] 23. This ballot paper contains the number 1 in the square opposite the name of Ms Caltabiano. It contains a 2, however, against the names of two candidates. When the number two appears in the square opposite the name of Mr Kilburn there is a line coming diagonally out of the square. It is nevertheless clearly still the number 2. In such a case one ignores those numbers higher than the number 1. As the number 1 is clearly placed in the square opposite the name of Ms Caltabiano, this vote should have been counted as a formal vote for Ms Caltabiano instead of an informal vote.
[1186]
[772] 25. This ballot paper contains a 1 in the square opposite the name of Mr Zegenhagen. There is a 2 in the square opposite Ms Caltabiano's name; a 3 in the square opposite Mr Cooney's name and a 4 in the square opposite Mr Kilburn's name and a 4 and a cross in the square opposite Mr Furze's name. As there are two squares numbered 4, they can be ignored. The ballot paper is effective to give a first preference vote to Mr Zegenhagen which, when distributed, becomes a formal vote for Ms Caltabiano. This ballot paper should have been counted as a formal vote for Ms Caltabiano instead of an informal vote.
[1187]
[773] 34. This ballot paper has the number 1 in the square opposite the name of Mr Kilburn and the squares opposite the names of the other candidates have a cross inserted. As the ballot paper has the number 1 written in the square opposite the name of only one candidate this ballot paper indicates a preference for that candidate. The crosses can be ignored. The ballot paper is not otherwise informal so it should have been counted as a formal vote for Mr Kilburn rather than an informal vote.
[1188]
[774] 47. This ballot paper contains a tick against the name of Mr Kilburn and crosses in the squares opposite the names of the other candidates. One might deduce from this that the voter intended to indicate a first preference for the only candidate who has been ticked; however, it does not fall within any of the categories of formal votes as it only contains ticks and crosses. It cannot be regarded as writing or marks other than the number 1, a cross or a tick to indicate the voter's intended order of preference and so was correctly declared informal.
[1189]
Category 5: ballot paper marked outside the squares
[1190]
[775] 19. This ballot paper had numbers marked inside the squares which have been crossed out. Numbers are then found outside the squares but clearly opposite the names of candidates and are numbered from 1 to 5. I am satisfied that this is sufficient to indicate the voter's order of preference and to indicate a first preference vote for Ms Caltabiano. I am satisfied that this ballot paper was correctly counted as a formal vote for Ms Caltabiano.
[1191]
[776] A summary of the rulings made by the Court is set out in the table below.
[1192]
[777] As a result of the informal votes that have now been ruled as formal Mr Kilburn has 11 extra formal votes and Ms Caltabiano has 6 extra formal votes. Mr Kilburn therefore has 13,595 votes and Ms Caltabiano 13,510. That means that Mr Kilburn's winning margin is 85 votes.
[1193]
[778] Two recommendations for law reform flow from these reasons for judgment. The ECQ and the political parties standing behind the applicant and the second respondent were invited to make submissions on these matters and each took that opportunity.
[1194]
[779] The first involves the time limit for making applications for a postal vote. Section 110 of the Act provides that electors have until 6pm on the Thursday before polling day to lodge an application for a postal vote application. Applications received after that time must be regarded as not having been made. However, all applications received prior to the cut-off point must be processed.
[1195]
[780] The ECQ submitted that it has had long-standing concerns about the deadline for lodging these applications. The lateness of the deadline serves to encourage some electors to leave it until the last minute to lodge their application. However, s 116 of the Act provides that a postal vote must only be accepted for counting if the elector's declaration has been signed and witnessed before the end of voting hours (6 pm) on polling day. The absence of postal deliveries on a Saturday increases the risk that "last minute" applicants will not receive their ballot material in time to vote, particularly when ballot material is asked to be sent to an interstate or overseas address. The problem was manifestly apparent during my consideration of this matter. The risk can be minimised by moving forward the deadline for lodging an application for a postal vote to 6 pm on the Wednesday before polling day. This improvement could be achieved by replacing the word "Thursday" where it appears in s 110(2) of the Act with the word "Wednesday" and I would recommend such a reform.
[1196]
[781] The LNP did not support this reform. It did, however, make a number of other suggestions which are outside the scope of what can properly be considered in an application of this type and may more appropriately be referred to a parliamentary committee or dedicated law reform body for consideration.
[1197]
[782] The second area of desirable law reform concerns the form of postal vote applications. There is presently no requirement in the Act for applications for postal votes to be in any particular form. Section 110 of the Act merely requires that electors must apply "by writing signed by the elector." The request must also state the address to which the ballot paper and declaration envelope is to be sent.
[1198]
[783] The ECQ informed the Court that the number of applications for postal votes received by it has significantly increased at recent elections from 102,000 in 2004 to 141,000 in 2006, with a further increase to 216,000 in 2009. One reason for this growth is the significant increase in postal vote activity by political parties. It is commonplace for parties to mail out applications for postal votes to all households in an electoral district. Electors are invited to apply for a postal vote on a form designed by the party and return it in a reply-paid envelope to the political party. The party manually enters each elector's details into its database before passing applications to the ECQ for processing.
[1199]
[784] One of the challenges for the ECQ is that it thus receives applications on a number of different forms. This can create difficulties in scanning and processing applications as well as increasing the potential for errors to be made, both by electors and officials. Examples were seen in this case of an elector neglecting to sign the application when there were two applications on the same page or an attorney signing not realising that the method of signing for another person is covered by s 179 of the Act. This issue has been addressed in s 184(1) of the Cth Act, which provides that "[a]n application shall be in writing in the approved form".
[1200]
[785] The AEC's Guidelines for the Reproduction of Postal Votes[106] provide that any reproduction of its postal vote application must reproduce all of the text of the approved form. It is accepted, however, that the artwork on the front cover panel and the AEC's logo need not be reproduced. The AEC makes available a camera-ready copy of the approved form (minus artwork and logo) for the benefit of political parties.
[1201]
[786] The ECQ submitted that the Commonwealth Government is currently preparing a Green Paper which will canvass possibilities for the harmonisation of electoral laws across different Australian jurisdictions. This provides the potential for Queensland to adopt an approved postal vote application form. The ALP supported law reform in the context of national harmonisation and recommended that an application for postal vote be in an approved form and that that form be the one currently used by the ECQ. The LNP also supported the use of the current form used by the ECQ which it submitted had considerable advantages over the AEC's form, which is much more complex.
[1202]
[787] In my view the ECQ's form is clear and straightforward but nevertheless could be improved by giving electors a checklist of reasons for a postal vote for them to tick and by making reference to the only ways in which an application may be signed. Having an approved form will immediately reduce the occasion for electors to be denied through error postal votes to which they are entitled. Pending national harmonisation, I would recommend immediately amending s 110 to add a requirement that an application must be in the approved form.
[1203]
[788] I am satisfied that two electors voted twice (ground 1); two postal votes were issued that should not have been issued (ground 3); six electors were denied a postal ballot under ground 4(a); one elector was denied a vote under ground 4(e); one elector was denied a vote under ground 4(g); and two electors were denied a vote under ground 4(h).
[1204]
[789] Further, I would have found that one person was denied a vote to which she was entitled under ground 4(b), but I do not make that finding due to the prohibition contained in s 138(2)(b) of the Act.
[1205]
[790] None of these 14 irregularities could have affected the outcome of the election where the winning margin was 74 votes at the end of counting by the ECQ, 80 votes after the parties had agreed on what ballot papers should be allowed as formal votes under ground 5, and 85 votes after the remaining disputed ballot papers were determined by the Court. It is inevitable that human error will occur in any electoral process no matter how carefully and competently it is conducted. This election was conducted carefully and competently by the ECQ. The errors that were made were insufficient to suggest that the election result in the electoral district of Chatsworth did not represent the "free and deliberate choice of the competent electors".[107]
[1206]
[791] The application must therefore be dismissed. I will hear argument as to costs. Pursuant to s 139 of the Act, I direct the Registrar of the Supreme Court to arrange for a copy of the Court's final orders to be sent to the Clerk of the Parliament as soon as possible.
[1207]
[1] The Oxford English Dictionary defines "personate" as "to assume the person or character of (another person), esp. for fraudulent purposes; to pretend to be; to act the part of".
[1208]
[2] Subsection 80(2) of the Act provides that for the purpose of determining a cut-off day, the polling day or the day for return of the writ under sub-s 80(1), each of the relevant days are included in the specified number of days.
[4] Legal, Constitutional and Administrative Review Committee, Parliament of Queensland, Matters Pertaining to the Electoral Commission of Queensland (1996) at page 4 ("the LCARC Report").
[1211]
[5] See, eg, Electoral and Administrative Review Commission, Report on the Review of the Elections Act 1983-1991and Related Matters (December 1991) at [9.123].
[12] In Tanti v Davies (No 3), Ambrose J held at 628-629 that the ECQ is not responsible for any delays or omissions in the postal service.
[1218]
[13] See, eg, Buck v Bavone[1976] HCA 24; (1976) 135 CLR 110 at 118-119 per Gibbs J; Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275-276 per Brennan CJ, Toohey, McHugh and Gummow JJ.
[1219]
[14] The ECQ's election information systems enable this record to be maintained electronically. This figure includes a small number of votes cast by persons who were not on the electoral roll.
[21] The insertion of this section makes the criticism of the decisions of Ambrose J and Mackenzie J by Bleby J in Featherston v Tully[2002] SASC 243; (2002) 83 SASR 302 at 337-338 irrelevant to the determination of this matter.
[61] Mr Burton has written his name as "Peter Gerard Burton" in his application for a postal vote. However, I have referred to him as "Peter Gereard Burton" - his name as enrolled - as I am prohibited by s 138(2)(b) from inquiring whether the electoral roll has been kept in accordance with the Act.
[1255]
[62] An asterisk against a person's name shows that that person was particularised under more than one ground.
[1256]
[63] In accordance with s 136(4) of the Act which provides that the Court must ensure, as far as is reasonably practicable, that the secrecy of the ballot is maintained, I have removed the name of the political party to which Mr Caltabiano referred.
[1257]
[64] The applicant referred, in the table in para [32] of her submissions, to para [3] of what appears to be a reference to an affidavit by Mr Cordwell. I have ignored references to facts in the applicant's submissions where they were mis-stated or not in accordance with the evidence. The parties were working under intense time pressures to have their material and submissions ready and I have assumed that that is the reason for errors in the submissions which, as I have said, I have ignored. There were also some errors in the table in para [34] of the submissions which affected the accuracy of the submissions on the facts that followed.
[78] Mrs Dawson has written her name as "Carol Ann Dawson" in her application for a postal vote. However, I will to refer to her as "Carol Anne Dawson" - her name as enrolled - as I am prohibited by s 138(2)(b) from inquiring whether the electoral roll has been kept in accordance with the Act.