Chanter v Blackwood [1904] HCA 2

Chanter v Blackwood [1904] HCA 2 - HCA 1904 case summary — Zoe

[109]

I should be prepared to hold that the cross is mandatory and the square directory. But it is not necessary to go so far in this case, I take it that the word "square" in the Act does not necessarily mean a four-sided equilateral figure with right angles, having the four sides joining at the angles. No doubt an irregular square would do. Nor can I find anything requiring the square to be on the right hand of the line or the left hand of the line or that all four sides should be completely marked. Take this case for example: 'Two names divided by a horizontal black line, with two vertical lines intersecting the right-hand end of the line and extending above and below the names of the candidates. There would then be two spaces, one above the line and one below it, neither of which would be a perfect square, because each of them would have three sides only, two perpendicular lines" in each, but one wanting the top line, the other wanting the bottom line ; they would be squares imperfect in form. Could it be suggested that if a ballot-paper were issued in that form, which is perfectly lawful according to the Act, and an elector were to_ put a cross in that square of three sides, the vote would be bad 2 If we were to hold that, it would be distinctly contrary to the injunction laid on the Court by sec. 199. This leads me to the conclusion that what is meant by square is a square space - _ something that an ordinary person looking at the paper would consider a square space. If drawing a line across the top or bottom of the square is not imperative - and that seems to me plain law - why should drawing a line at one side of the square be imperative ? Take another illustration: The names of two candidates are printed each of them between two horizontal | black lines, and at a distance, slightly to the left of the right- hand extremity of those lines, a perpendicular line is drawn. Then there would be spaces marked by three lines, separated by. a vertical line from the names of the candidates and having one side open. Strictly speaking that is not a square, but to hold that a vote given by making a cross in such a space was

[115]

Whether that law is part of the Common Law of Australia or not is a question which I should be very sorry to decide without much fuller argument than has been possible on this occasion. I say this because there are very weighty authorities to the effect that Parliamentary law is not introduced into the colonies, and therefore not into the Commonwealth. I refer to the opinion of Sir A. Cockburn, A.G., and Sir R. Bethell, S.G., (Feb. 15, 1856, quoted in Forsyth's Cases and Opinions on Con- stitutional Law, at p. 25), and the decision of the Privy Council in Kielly v. Carson, (1843) 4 Moo. P.C., 84. We are fortunately relieved from the necessity of determining that point. All we have to decide is whether, under the provisions of the Statute Law before us, a candidate is incapable of election if he has committed one of the acts prohibited by the Commonwealth Electoral Act. On this question two lines of argument commend themselves to my mind, each of which leads to the same result. One is the general rule, stated in many forms, that, when a Statute creates a new obligation or imposes a new duty, and preseribes specific consequences or remedies for non-performance of the duty or breach of the obligation, those remedies must be adopted and no other. Now, in this case the Legislature has enacted a number of provisions, and has attached to the breach of some of them liability to imprisonment for 12 months, and the Constitution had already provided that a person subject to punishment of that kind should lose his seat. So that, from that point of view, it would appear that Parliament was aware that any person guilty of any of those offences to which the punishment of 12 months imprisonment was attached would lose his seat under the Con- stitution, and that therefore it was unnecessary to make further provision in the Electoral Act, leaving his guilt to be established in the ordinary way. Another and perhaps a wider argument is this: - The Commonwealth was formed by the union of six separate States. Now, in all those States there had been electoral laws which, after the establishment of the Commonwealth, continued to be the law of the Commonwealth as to the respective States until this Commonwealth electoral law was passed. The earliest was that of New South Wales. Now, in the Act of the Legislative Council, passed before Responsible Government was established,

[116]

it was expressly enacted that any candidate guilty of certain - offences enumerated in that Act, should be incapable of election, and all subsequent legislation in New South Wales was on the same footing. It was never assumed that the New South Wales Parliament had power to avoid an election on that ground without express legislation. This provision was again enacted - ina later Act. The same Constitution was adopted in Queensland, - and in the Constitution of Victoria there is a similar provision, 4 I cannot speak of the later Acts in Victoria, but I know that | certainly in the other States, there were continuous provisions to the same effect. So that we finda uniform course of legislation all to the same effect, by which the conditions under which a candi- date can become incapable of election, were expressly laid down, - and when power was intended to be given to the Committee of - Elections and Qualifications or other tribunal to determine the question, it was expressly conferred. Then we find the Common- wealth Parliament in this Electoral Act deliberately omitting any such provision. In these circumstances I do not think that it can be inferred that this Court has power to declare that a candidate | is guilty of an electoral offence, or to declare that, if he has been so guilty, he shall forfeit his seat. In what I have said as to the Common Law, I must not be supposed to suggest that there is not a Common Law applicable to elections. I take it that the law is" correctly laid down in this passage in Woodward v. Sarsons, (1875) L.RB., 10 C.P., p. 743, where Lord Coleridge, .J., says, in delivering the judgment of the Court: - "As to the first point, we.are of opinion that the true statement is that an election is to be declared void by the Common Law applicable to parliamentary elections, if it was so conducted that the tribunal which is asked to avoid it is satisfied, as matter of fact, either that there was no real electing at all, 01 that the election was not really conducted under the subsistin; election laws. As to the first, the tribunal should be so satisfied, i. that there was no real electing by the constituency at all, if it were proved to its satisfaction that the constituency had not i fact had a fair and free opportunity of electing the candida' which the majority might prefer. This would certainly be so, i a majority of the electors were proved to have been prevent from recording their votes effectively according to their ow:

[123]

the name of the candidate preferred. But I am loath to believe that the legislature, having regard to that which was an essential in its very kindand nature, went on to preseribe,as something which is also essential, the mere locality of that cross, beyond and apart from the strict and positive indication of the voter's preference, as the placing of the cross opposite the name of the candidate for whom he desires to vote clearly is. Taking into consideration the sections cited by His Honor, and secs. 163 and 164, in which there is no mention of a square, and having in view sec. 157, which does not place any rigid limit upon the power of this Court to declare a vote valid which may be in some minute respect strictly informal, coupling these with the provisions of sec, 199 which expressly warn us against the adoption of legal formalities and technicalities, 1 have come to the conclusion that it was not an essential to the validity of these votes that the cross should have been placed within a square. But,as His Honor has pointed out, if it were an essential that it should be placed in a square, it is in a square space, and greater particularity than that I do not think the legislature requires. And, looking at the case of Woodward v. Sursons, (1875) LR. 10 C.P., 733, I do not see anything in the judgment that limits its principle to the precise state of facts which arose in that case. It is true that in that case certain provisions or directions for the guidance of voters were placed in a schedule to the Act, and others were placed in the Act itself. But I cannot bring myself to the conclusion that the principles there stated, if we find them applicable, should not apply even where there may be two provisions in question, both occurring in the body of the Act; and I may goeven further, and say that, if the application of the principle can be deduced from the whole meaning of the clause, and the scope and purport of the Act, then it can be applied even where the two requirements occur in the same section; and where their nature is different it is open to infer that the degree of force to be given to them is different.

[125]

tested. Where a ballot-paper has been marked by an elector in full compliance with a Statute which does not prohibit any further marking it would be too much to hold that a further marking, still more clearly expressing the intention of the voter, rendered the vote illegal. I think we are unanimous in that respect. As to the second question, which is " whether the votes given in the manner alleged in paragraph 13 of the petition were valid " - are the votes valid of 41 electors whose names were on the rolls for other polling places within the Division, and who recorded their votes (that must be taken to be the correct statement of the facts for the purpose of this argument), not in the manner pre- scribed by the Hlectoral Act and the Regulations made thereunder? Now it appears that we are to discuss this paragraph in the light of the facts disclosed during the argument, the chief of which facts were these. The voters went through the formalities prescribed in the Regulations to cover their being absent from the polling places in which they were enrolled, and so they were entitled to vote at polling places in some other part of the Division, if they first made and signed a declaration in the Form Q in the Schedule, That was a declaration that the applicant was the person whose name appeared on the electoral roll,and that he had not voted at that election, and that he promised that, if permitted to vote at the polling place designated in the Form, he would not vote at the same election at any other polling place. Having made thos declarations (and it is not contended, although they were in a form different as to words from Form Q, that they were thereby invalid), the electors voted, apparently through the fault of th officer, by merely writing the name of a candidate upon papers which up to then did not contain the name of any candidat The Act is clear I think that persons who vote under this sectio must vote in the ordinary way. There is nothing to distinguis! the method of their voting from the voting of other electors, but beyond all question of crosses and squares, the matter is dee} seated, because, except in one case, that of postal votes, there is n provision which allows an elector to vote by writing down thi name of a candidate for himself. It is so absolute a departu from all the conditions required for an ordinary vote (and it i an ordinary vote when once the declaration is made) that it wou

[129]

of Disputed Returns has any and what jurisdiction in respect of illegal practices." But this form of words does not express the exact point we are asked to determine. It appears from a state- ment made by the Chief Justice during the argument and assented to at the Bar, that the real question to be determined is, whether an election can be avoided for a single act of bribery or other illegal practices. On that question I am also in accord with the Chief Justice. I do not at present express any opinion (because it is unnecessary in this case) as to the construction to be placed upon the second paragraph of sec. 44 of the Constitution taken in conjunction with the provisions of the Hlectoral Act. But upon the general question I should like to call attention to a further passage in the judgment of Mellor, J., in the case of the Bolton Election, (1874) 2 O'M. & H., at p. 150. That judgment has already been cited by the Chief Justice. The additional passage is in these words - 'I agree with the opinion of the late Mr. Justice Willes; he was decidedly of opinion that a violation of an Act of Parliament which itself created the offence and provided the penalty could not avoid the election ; all it did was to inflict penal consequences upon the persons who did the acts. That also is in exact conformity with the evidence given by my brother Martin to which I have already referred, and it is also, I know, the opinion of my brother Bramwell, for when I communicated with him upon the point of the telegram, I took the opportunity of asking his opinion upon this particular point, and in the answer which he gives me he entirely goes the length of Mr. Justice Willes, and entirely concurs in the view I have taken of the effect of sec. 36 of the Reform: Act 1867." So that that opmion expresses the concurrence of three judges on the question. Now let us have some regard also to the legal history of this question. The legislation of all the colonies which afterwards became the States of the Commonwealth, provided for several electoral offences and their punishment, including among such offences corrupt practices, and in each case, so far as I have been able to discover, and I

[130]

have looked through the majority of the Acts, the commission of a single act of these corrupt practices has been in the past laid down as both disqualifying the candidate elected and forfeiting the seat. But singular to relate, the Commonwealth Parliament, although it provided for the definition and the punishment of these offences, did not provide that the commission of them should disqualify the candidate or forfeit his seat. I regard it asa strong" feature that Parliament had all these enactments before it, being those severally applied within the States to the election of the members who passed this uniform Act, and yet refrained from placing them in its legislation. How couldit have meant that the consequences of the previous legislation should apply to the legis- lation it was about to enact? If the Federal Houses had that intention, they have not expressed it ; and it may be that the course we are now taking in not going beyond the mere necessities of this' case has additional reason in its favour because, before any such question comes before us again, the representatives of the people will have had an opportunity of considering this question, and o taking such course as they may deem advisable. In the meantime we find this question argued by counsel for the petitioner on the basis that he rests his claim on the Statute, and on the Statute alone. The answer I think the Court is obliged to make to that is, as has been pointed out by Mellor, J., in the Bolton cuse, supra, that it is within the four corners of the Act in this case that we must look for the offences, their punishment and consequences ; and. not finding (applying the policy of the Act as broadly as we ean) any provision which would justify us in saying that a single a of bribery or of treating would render a seat void, we are obli to answer that question in the negative. The Common Law i not here invoked, because counsel for the petitioner relies merely on the Statute. It may be that the Common Law as stated on the high authority of Mr. Justice Willes, is that a single acl amounting to bribery whether by treating or otherwise, committed by a candidate or his authorized agent, would avoid the whole election; but on that point His Honor the Chief Justice has read a passage from Woodward v. Sarsons, supra, which seems to point: the other way, and to require that, even at Common Law, th corrupt practice proved must be general in its character so as to.

[136]

whom they voted. Now those are the ballot-papers which have been declared to be invalid on the ground that the cross is not in the square opposite the name of the candidate but outside the square. Some suggestions were made in the judgments of their Honors as to what would happen if the square was not complete, that is, was not an actual mathematical square. It appears to me that when the expression "square" is used in an Act of Parliament dealing with a subject of this kind, it must be taken to be used in the ordinary popular sense, not as meaning a mathematical square, but an enclosure which may be fairly described as a square. In this instance that which purports to be a square opposite the name of the candidate is not a mathematical square, but nobody who saw it would hesitate for a moment to say that it may be fairly described as the square set opposite the name of the candidate. Now that being so the voter did not use that square, but put 2 cross opposite the name of the candidate outside the square. The question is whether that vote is valid or not. It has been said that there is no obligation upon the Returning Officer to issue a ballot-paper containing the square. I cannot agree with that view. It is true that the Act says in sec. 132 : - "Ballot-papers to be used in the election of members of the House of Representatives may be in the Form Pin the Schedule." But in having regard to what are the essentials of a ballot-paper you must look at other sections besides that. Form P is intended merely to give the form in which the essentials of the ballot-paper are arranged ; and as long as you have the essentials of the ballot- paper, it appears to me to be immaterial whether they are in the Form P or some other Form. There is no doubt that the general provision at the end of the Act, namely, sec. 209 - * The forms in the Schedule may be varied as the circumstances of the case may require " - is really directed to the same end. The ballot-paper need not contain those particulars which are not material. There may be in that respect a variation of the form which is laid down in the Schedule. Now in determining what is material in the Form of the ballot-paper, it is necessary to look at other portions of the Act; and it appears to me that we must gather what is material from sec. 133, That section provides : -

[153]

square or not, the whole of the provisions of this Act regarding the square and the particular place in which the vote is to be marked, are mere waste paper. I come now to the sections dealing expressly with the informality complained of. It will be found that in the scheme of the Act, the ballot-papers and the dealing with the ballot-papers of both the Senate and the House of Representatives are put on exactly the same footing. Sec. 133 provides that they are to be printed. No distinction is made as to the printing of the ballot-papers of the two Houses. The printing of ballot-papers is spoken of generally, and when you come to the obligations of the voter you find also that they are treated in exactly the same way. The obligations of the voter are stated in sec. 150, which says : - ' In elections for the Senate the voter shall mark his ballot-paper by making a cross in the square opposite the name of each candidate for whom he votes." It having been enacted, that each ballot-paper shall contain a square, sec. 150 provides that the voter shall mark his ballot- paper by making a cross within the square opposite the name of each candidate for whom he votes. That is mandatory. 'Taking the ordinary grammatical meaning of that section "shall" means "shall." Next take sec. 151 : - * In elections for members of the House of Representatives the voter shall mark his ballot- paper by making a cross in the square opposite the name of the candidate for whom he votes." The same expression is used with reference to the same square. Now that being the duty of the voter, let us next look at the power which is to be exercised by the Returning Officer at the scrutiny. Sec. 155 is a general provision dealing with the scrutiny both for elections to the Senate and elections to the House of Representatives. Sub-sec. 4 provides that : - ' All informal votes shall be rejected." That is mandatory. Then sec. 158 provides what votes shall be informal. Here again I take together the provisions relating to both Houses, for 1t seems to me that they cannot be separated. Sub-sec. ()) provides that : - * A ballot-paper shall be informal if in elections for the Senate it has (not being a postal ballot-paper) no cross in the square oppesite the name of any candidate." The expression is "shall be informal." That is clearly mandatory. The square referred to is the square referred to in sec. 150. It is the square

[155]

to all through the Act wherever the matter is dealt with. When we come to the provisions with respect to the House of Repre- sentatives sub-sec. (¢) provides that : - "A ballot-paper shall be informal if in elections for the House of Representatives it has (not being a postal ballot-paper) no cross in a square opposite the name of a candidate." If the word used had been no cross. in " the" square, I think there could have been very little room for argument. The section, however, uses the word "a" square, while in the provision as to the Senate the word used is "the," But can there be any doubt at all that the square mentioned in sub-see. (c) is the same as the square mentioned in sub-see. (b) - that the square for the Senate is the same as for the House of Representatives ? It appears to me that you must take these as one provision for the issue of the same kind of ballot-paper for the Senate and the House of Representatives, putting a duty on electors in both cases to vote in the same way by putting a cross in the square opposite the name of the candidate for whom they vote. I cannot do otherwise than read the words "in a square" | in sub-see. (¢) as meaning exactly the same as the words "in the square" in sub-see. (b). But it is said that however that may be see. 163 makes a difference. It is to be remembered that this Act is divided in the following way. Part 12 has a general heading, "The Scrutiny." The provisions I have been reading are general provisions applying both to the Senate and the House of Repre- sentatives. Then, inasmuch as there must be a different way o} conducting the two elections, the returns for the Senate coming in from the whole State, and those for the House of Representatives from the various electorates into which the States are divided, there must be,in some respects, a difference in the provisions relating to them, and, therefore, there are sections relating to the Senate and the House of Representatives separately. It is to be noticed that in these further " provisions relating to the elections for the Senate" there is no mention specifically of the square a all, See. 160, sub-see. (c) provides that : - * Divisional Returning Officers and Assistant Returning Officers shall count all the votes found in the boxes opened by them respectively, rejecting al informal ballot-papers, and shall make and keep a record of the

At a glance

Court

Decision date

Before

Source

Judgment (198 paragraphs)

Cited By (2)