Cole v Lacey

On 25th January 1965 George Ronald Cole, who was a candidate for election to the Senate at the election held in the State of Tasmania on 5th December 1964, presented a petition pursuant to Pt XVIII of the Commonwealth Electoral Act 1918-1962 Cth seeking a recount of all votes cast in all divisions of that State and consequential declarations following such a recount. Five Senators were to be elected and after four had been elected in the course of the scrutiny the respondent Lacey defeated the petitioner for the fifth vacancy. The quota determined pursuant to the provisions of the Act was 29,742 and Lacey achieved his election on the final count by securing 29,774 votes. It is alleged in the petition that if Lacey had not achieved a quota on this count it would have been necessary to distribute some 5,319 surplus votes polled by another elected candidate, Marriott, and that this distribution would have greatly favoured the petitioner. No application was made to the Commonwealth electoral officer pursuant to s. 137 for a recount of the ballot-papers and by way of explanation for what the petitioner apparently thought might be regarded as a significant omission, it is alleged in the petition that he was ill in hospital when counting was completed. However, the fact that no such application was made is not relevant to the questions which I have to decide.

The matter comes before me pursuant to an order made by Menzies J. on 25th February 1965 and the sole purpose of this hearing is to determine whether the petition fulfils the requirements of s. 185 of the Act and is one upon which proceedings may be had under s. 187 of the Act. Needless to say the petitioner asserts that his petition is in conformity with the Act but the respondent relies upon two grounds in asserting the contrary of this proposition. Both of these are based upon s. 185 (a) of the Act which provides that every petition disputing an election or a return shall "set out the facts relied on to invalidate the election or return". But before stating with particularity what these grounds are it is convenient to mention that no complaint is made concerning the conduct of the election and the substance of the case which the petition seeks to make, in an obtuse way, is that unspecified and unidentified votes which should have been rejected as informal were admitted in the course of the scrutiny. The first contention of the respondent is that the petition does not allege any fact or facts which, if established, would prove or tend to prove that this was so. Alternatively it is contended that it is incumbent upon a petitioner to allege in his petition, and to prove on the hearing, that votes which should have been rejected as informal but which were admitted were sufficient in number to enable it to be said that they had influenced the result of the election in favour of the respondent and adversely to the petitioner.

In my view, the alternative contention of the respondent should be rejected. That is to say that, on the assumption that an unspecified number of informal votes were admitted in the course of the scrutiny, it was not incumbent upon the petitioner to allege, or at a later stage, to prove that they were sufficient in number or such as to affect the result of the election. I do not, of course, mean to say that if it appeared from the petition that they were insufficient in number to affect the result the petition should proceed. But as I understand the position the petitioner, in a matter such as the present, is not obliged to prove that the result of the election was affected and, therefore, not under any obligation to allege in his petition facts showing that it was or that it is probable that it was. I base this view upon s. 194 of the Act which provides that: "No election shall be avoided on account of the absence or error of or omission by any officer which did not affect the result of the election". The section in its original form and as re-enacted by the Commonwealth Electoral Act 1918 was the subject of consideration by Isaacs J. in Kean v. Kerby [1] . At this time the section read: "No election shall be avoided on account of the absence or error of any officer which shall not be proved to have affected the result of the election". Isaacs J. pointed out that in England the relevant law provided "that no election shall be declared invalid by reason of non-compliance with the election rules if it appears to the tribunal (a) that the election was conducted in accordance with the principles laid down in the body of the Act, and (b) that such non-compliance did not affect the result of the election" [2] . Thereafter he proceeded: "In other words, if the matter is left so that the mistake may have affected the result, the election may be declared invalid. Under our Act it is different. By s. 194 it is provided that "No election shall be avoided on account of the error of any officer which shall not be proved to have affected the result of the election". The "result" means the return of the particular candidate, and not the number of his majority" [1] . These observations were made in 1920 but by the Commonwealth Electoral Act 1922 s. 194 was amended by omitting the words "shall not be proved to have affected" and inserting in their stead the words "did not affect". The present form of the section, having regard to its history, leaves no room for the suggestion that in a case such as the present it is incumbent upon the petitioner to allege, or, at a later stage, to prove that the alleged irregularities affected the result of the election.

1. (1920) 27 C.L.R. 449. 2. (1920) 27 C.L.R., at p. 458. 3. (1920) 27 C.L.R., at p. 458.

However, I am of the opinion that the respondent's primary contention must prevail for I am unable to see that any facts are alleged in the petition which, if established, would prove or tend to prove that there was any irregularity in the scrutiny or in the return. There is a number of quite irrelevant allegations in the petition but in substance the claim is based upon the allegation contained in par. 5 that the percentage of votes rejected during the scrutiny was considerably lower than that "in other States" and also "below that of informal votes in previous elections for the Senate in Tasmania". The percentages of informal votes recorded in five elections for the Senate held in Tasmania is given in par. 5 and they are as follows:

Year Percentage 1953 5.09 1955 12.6 1958 11.2 1961 10. 1964 3.5

Paragraph 6 of the petition follows this specification of percentages and it is in the following form: "No complete scrutiny of the votes was conducted by or on behalf of the candidates and your Petitioner says that on such a complete scrutiny a greater number of ballot papers would be rejected as informal". I confess to some difficulty in appreciating the precise meaning or relevance of the first part of this paragraph but I take it to acknowledge that scrutineers appointed by the respective candidates exercised their rights under Pt XIV of the Act to some unspecified extent but either that they were not present during the whole period of the counting or that in some other manner they failed to exercise their rights to the fullest extent. To what extent this occurred is, however, left to speculation. But there is no suggestion in the petition that any scrutineer objected to any ballot-papers or class of ballot-papers nor is there any direct allegation that any informal votes or classes of informal votes were admitted. The second part of this paragraph is, as I understand it, stated argumentatively as a conclusion to be drawn from the facts alleged in the preceding paragraph and this view was not contested in argument before me.

The case of the petitioner, therefore, rests solely upon the allegations contained in par. 5 and I am asked to hold that the matter therein appearing is tantamount to an allegation that a substantial but uncertain number of informal votes were admitted and counted during the course of the scrutiny. Such a general allegation would, it was said, be sufficient to satisfy the requirement of s. 185 (a). This may well be so but I find it impossible to accede to the first submission on this aspect of the case. The facts as they are alleged in the petition have already been stated and the proposition is that the matter alleged in par. 5 is sufficient to support an inference that a substantial number of informal votes had been admitted and counted. I am by no means sure that this is the correct form of approach to the present problem but if I were to accede to the stated proposition I would not be prepared to take the course of dismissing the petition at this stage and without further investigation; I would be inclined to take the view that, although there was no direct allegation of facts justifying an order invalidating the return, sufficient facts were indirectly alleged in the petition. But I have formed the view that it by no means follows from the fact that the percentage of informal votes was "considerably" lower than in "other Australian States" that informal votes were admitted and counted in the course of the scrutiny. Nor do I think that any different situation is produced when there is added to this circumstance the additional fact that the percentage of informal votes was "below that of informal votes in previous elections for the Senate in Tasmania". The specified percentages which follow these allegations are of considerable interest. In 1953 the percentage of informal votes was 5.09%; in 1964 it was 3.5%. In the intervening elections in 1955, 1958 and 1961 the percentages were 12.6%, 11.2% and 10% respectively and I find it impossible to say that one may postulate that the percentage of informal votes in Senate elections will conform to any standard pattern. Presumably it may vary from election to election within wide limits according to the number and general acceptability of the candidates and, no doubt, in response to other factors. For instance the percentage in 1953 seems low in comparison with that recorded in 1955; or, perhaps, it may be said that the percentage in the latter year is high when compared with that recorded in the former year. Likewise the percentage in the former year is low when compared with the percentage recorded in 1961 but the percentage recorded in the former year is higher than that recorded in 1964 which, in turn, is not unduly low when compared with the figures given for the first year mentioned. It was only in 1953 and 1964 that elections were held for the Senate alone; in the other years mentioned the Senate elections were held in conjunction with the election for the House of Representatives and this is suggested as one explanation for the disparity between the percentage of informal votes recorded, on the one hand, in the first and last years specified and, on the other, the percentages recorded in the intervening years. This may be so and, of course, there may have been other reasons but it is not for me to speculate. Consideration of the figures has, however, produced two firm impressions on my mind. The first is that, as I have already said, it is impossible, within any identifiable limits, to predicate that the number of informal votes at all Senate elections will conform to any recognizable standard or pattern and, secondly, that in seeking to attribute a significance to the variations in the percentages of informal votes recorded at the elections referred to in par. 5 one cannot overlook the fact that the 1953 and 1964 elections seem to be more truly comparable with one another than with the elections in the intervening years. In these circumstances I find it impossible to say that, having regard to the percentage of informal votes recorded at the election now in question, informal votes were admitted and counted or that it is probable that this occurred. That being so I am satisfied that the petition neither directly nor indirectly alleges any fact which would justify an order invalidating the return and directing a recount.

Accordingly, I am of opinion that the petition should be dismissed.