The text and enactment history of the relevant legislative provisions
52 More assistance is gained by an examination of the text of the legislation and the relevant enactment history.
53 If a finding of a court or its opinion or satisfaction is the subject of a provision it may be taken that, unless the statute reveals to the contrary, that fact, opinion or satisfaction will be reached to the requisite standard of proof, whether on the balance of probabilities or some higher standard, and affected or not by considerations such as in Briginshaw v Briginshaw (1938) 60 CLR 336.
54 So, if a statute provides that an election is not to be declared void unless something has been "proved to have affected the result of the election" or not to be declared void on account of something which "did not affect the result of the election", it might be thought that such a provision provides (good contextual reason aside) for proof on the balance of probabilities of the affectation of the result. This was the reasoning of Isaacs J in Kean v Kerby in 1920 in respect of s 194 of the Commonwealth Electoral Act 1918 (the forerunner of s 365) which employed the first of the above phrases. This was also the reasoning of Isaacs J earlier in 1916 in Bridge v Bowen where similar language was used that "it appeared to the Court that the person was unduly elected" (emphasis added). Section 365 employs the second of the above phrases and (subject to consideration of the amending enactment history after the handing down of Kean v Kerby discussed at [82]-[86] below) might be seen to require the Court to find a state of facts or state of affairs: the "error [etc] which did not affect [or did affect] the result of the election". This language is different to that in s 362(3) which speaks of the Court being satisfied that the result of the election was likely to be affected. The drafter did not, perhaps, need to insert the word "likely" before the phrase "to be affected" to convey the need for proof on the balance of probabilities that the election "was affected". The phrase "likely to be affected" can be seen as different and conveying something less definite than the proof of a fact or state of affairs.
55 The meaning of "the result of the election was likely to be affected" and the understanding that it is different from, and something less definite than, proof of the fact that the election was affected is assisted by an examination of the enactment history not only of s 365, but also of ss 329 and 362.
56 The Commonwealth Electoral Act 1902 (as enacted) (the 1902 Act) provided in Pt XV for Electoral Offences. By s 173, the following acts were prohibited and penalised to "secure the due execution of this Act and the purity of elections":
(a) Breach or neglect of official duty
(b) Illegal practices, including -
(a) Bribery
(b) Undue influence
(c) Electoral offences.
57 Sections 174 to 179 defined and criminalised the acts in (i) and (ii) (a) and (b).
58 Section 180 in its original form identified three other matters, in addition to bribery and undue influence, to be illegal practices, being:
(a) Any publication of any electoral advertisement, hand-bill or pamphlet or any issue of any electoral notice without at the end thereof the name and address of the person authorizing the same, and on the face of the notice the name and address of the person authorizing the notice;
(b) Printing or publishing any printed electoral advertisement hand-bill or pamphlet (other than an advertisement in a newspaper) without the name and place of business of the printer being printed at the foot of it;
(c) Any contravention by a candidate of the provisions of Part XIV, of this Act relating to the Limitation of Electoral Expenses.
59 Section 181 provided for criminal punishment of any illegal practice.
60 Section 182 provided for further electoral offences and their punishments in a table. These included falsely personating someone to secure a ballot paper, fraudulently taking a ballot paper out of a polling booth and interfering with ballot boxes, and voting more than once.
61 Part XVI (ss 192-206) provided for the Court of Disputed Returns. Section 197 (the forerunner of s 360(1)) set out the powers of the Court. Section 199 was in similar terms to the present s 364. Section 200, with the sidenote "Immaterial errors not to vitiate election", was in the following form:
No election shall be avoided on account of any delay in the declaration of nominations, the polling, or the return of the writ, or on account of the absence or error of any officer which shall not be proved to have affected the result of the election.
62 There was no provision expressly directed to how the Court should deal with, or any constraints on it in dealing with, the various illegal practices, including bribery, undue influence and electoral offences, in exercising its powers in s 197, including the powers in s 197(iv) and (vi) to declare someone not duly elected or any election absolutely void.
63 Chanter v Blackwood (1904) 1 CLR 39 (Chanter (No 1)) and Chanter v Blackwood (1904) 1 CLR 121 (Chanter (No 2)) concerned the election for the House of Representatives for the Division of Riverina in December 1903. There were two candidates. The elected candidate won by five votes (out of 8,677 formal votes). The dispute concerned the informality or formality of certain marked ballot papers. Three questions were stated that were the subject of Chanter (No 1). The first two concerned the mandatory or directory character of provisions of the 1902 Act dealing with marking the ballot paper. The third was whether the Court had jurisdiction, and if so what, with respect to illegal practices. The context of this issue being raised was explained by the Chief Justice at 1 CLR 56-57:
The third question raised by this petition is, whether the High Court has any and what jurisdiction with respect to illegal practices. I am afraid I am responsible for putting the question in that form, and it does not exactly raise the question I desired to be decided. This Court has clearly jurisdiction to administer the law, whatever the law is, and, if the law is that a candidate who is guilty of an illegal practice is not duly elected, this Court has clearly jurisdiction to say so. The real question is whether, by the law applicable to elections for the House of Representatives, a candidate guilty of an illegal practice as defined by the Electoral Act is disqualified from being elected. Sir John Quick expressly disclaimed any intention to set up that the respondent was liable to lose his seat under what is called the Common Law of Parliament, that is the Common Law relating to the House of Commons. It is said that by the Common Law of England relating to the House of Commons (I do not quite understand the expression) a candidate guilty of bribery at Common Law forfeited his seat. 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 Constitutional 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.
64 The Chief Justice first dealt (at 57-58) with the question whether, in circumstances of certain acts being criminal offences and where Parliament has omitted from the Act any express power in the Court to declare that such any act such had been committed by a candidate and to empower the Court to deprive him of his seat if he had, the Court had power to do either. At 1 CLR 58, Griffith CJ said:
So that we find [referring to Colonial and State legislation] a uniform course of legislation all to the same effect, by which the conditions under which a candidate 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 Commonwealth Parliament in this Electoral Act deliberately omitting any such provision. In these circumstance, 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.
65 The Chief Justice then (at 1 CLR 58-59) quoted at length Lord Coleridge CJ in Woodward v Sarsons (1875) LR 10 CP 733 at 743-744 on the common law of elections. The passage should be quoted in full because it commended itself to the Chief Justice and Barton J (at 1 CLR 64). It was cited and was the subject of discussion because there was real doubt expressed by the Court whether it had any power to interfere with an election even if most serious illegal practices had taken place. Lord Coleridge CJ said:
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, or that the election was not really conducted under the subsisting election laws. As to the first, the tribunal should be so satisfied, i.e., that there was no real electing by the constituency at all, if it were proved to its satisfaction that the constituency had not in fact had a fair and free opportunity of electing the candidate which the majority might prefer. This would certainly be so, if a majority of the electors were proved to have been prevented from recording their votes effectively according to their own preference, by general corruption or general intimidation, or to be prevented from voting by want of the machinery necessary for so voting, as by polling stations being demolished, or not open, or by other of the means of voting according to law not being supplied, or supplied with such errors as to render the voting by means of them void, or by fraudulent counting of votes or false declarations of numbers by a Returning Officer, or by other such acts or mishaps. And we think the same result should follow if, by reason of any such or similar mishaps, the tribunal, without being able to say that a majority had been prevented, should be satisfied that there was reasonable ground to believe that a majority of the electors may have been prevented from electing the candidate they preferred. But, if the tribunal should only be satisfied that certain of such mishaps had occurred, but should not be satisfied either that a majority had been, or that there was reasonable ground to believe that a majority might have been, prevented from electing the candidate they preferred, then we think that the existence of such mishaps would not entitle the tribunal to declare the election void by the Common Law of Parliament.
(Emphasis added.)
66 In the reasons of Barton J at 1 CLR 64-65 there is recorded a different view of Willes J as to the effect of bribery:
It may be that the Common Law as stated on the high authority of Mr. Justice Willes, is that a single act 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, the corrupt practice proved must be general in its character so as to have permeated the election, possibly on the part of both parties, so that it is no election at all, or that the corrupt practice must either have affected the result or given reasonable ground for belief that it might have affected it, so that what purported to be an election was not a free and pure election. In the meantime it is sufficient for us to answer the question which arises out of the reference put to us, together with the argument of Sir John Quick in the negative; that is to say, the question as re-stated by the Chief Justice, and argued for the petitioner, namely, whether under the Commonwealth Electoral Act a single act of bribery or treating would defeat an election. We are therefore relieved from answering that broad question of jurisdiction put to us in the original question, and I think it is fortunate that the Court is so relieved.
67 In Chanter (No 2), when the Court (constituted only by the Chief Justice) was sitting as the Court of Disputed Returns, it was proved that the votes of electors not entitled to vote sufficient in numbers to "turn the scale" had been counted. The election was declared void. In so doing the language of Lord Coleridge CJ was employed by Griffith CJ (at 1 CLR 130-131):
In these circumstances can I say that the majority of the electors may not have been prevented from exercising their free choice? Suppose that, instead of 91 persons voting who had no right to vote, 91 persons who had a right to vote had come and claimed to vote, and were not allowed to vote. Clearly those persons would have been prevented from exercising their right to vote, and the election must have been declared void. I cannot see that any other result can follow when a number of persons, sufficient to change the majority into a minority, if they all voted against the candidate having the majority, have wrongly been allowed to vote. I cannot enquire how they actually voted. It is clear that they may have voted for the respondent in which case the petitioner's majority would be larger, or that they may have all voted for the petitioner, in which case the respondent would have been elected. But the numbers being as they are, it is impossible for me to say that the majority of the electors may not have been prevented from exercising their free choice.
68 The headnote to Chanter (No 1) is relevantly in the following terms:
The High Court has no jurisdiction under the Statute to avoid an election on the ground that one of the candidates has by himself or his agents been guilty of illegal practices, unless there is reasonable ground for believing that the result of the election may have been affected by such illegal practices.
Quare, whether by the Common Law of the Commonwealth the High Court has jurisdiction to avoid an election on the ground of a single act amounting to bribery at Common Law, committed by or on behalf of a candidate.
69 The above is the enactment context to relevant parts of the Commonwealth Electoral Act 1905 (No 26 of 1905) (the 1905 Amendment Act). The 1905 Amendment Act made important changes to Pt XV1 to remedy the obscurity and potentially serious difficulty exposed in Chanter (No 1). First, sub-ss (2) and (3) were added to s 197 equivalent to sub-ss 360(2) and (3). Thus, the Court was empowered to exercise its powers as, in its discretion, it thinks just and sufficient (sub-s (2)) and "it is hereby declared that the power of the Court to declare that any person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connexion with the election" (sub-s (3)). So, the doubt as to the existence of power was clarified in pellucid and emphatic language.
70 How that jurisdiction was to be exercised and the different consequences of bribery and undue influence, on the one hand, and other illegal practices, on the other, were provided for in a new s 198A (which was the forerunner of s 362) as follows:
198A. (1) If the Court of Disputed Returns finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.
(2) No finding by the Court of Disputed Returns shall bar or prejudice any prosecution for any illegal practice.
(3) The Court of Disputed Returns shall not declare that any person returned as elected was not duly elected, or declare any election void -
(a) on the ground of any illegal practice committed by any person other than the candidate and without his knowledge or authority; or
(b) on the ground of any illegal practice other than bribery or corruption or attempted bribery or corruption,
unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.
71 It can be seen that the view of Willes J in respect of bribery (and, indeed, undue influence) was enacted. Secondly, and most relevantly here, the wording of the proviso after para (3)(b) is to be read in the context of Lord Coleridge's expression of the common law of elections in 1875 in Woodward v Sarsons, referred to in Chanter (No 1), in particular the passage emphasised at [65] above.
72 When one examines the debate in the House of Representatives on the Bill that produced the 1905 Amendment Act, the relevance of Chanter (No 1) is most evident. The Bill was partly the outcome of recommendations of a Committee of the House. Mr Groom was the Minister for Home Affairs who moved that the Bill be read a second time. In discussion about illegal practices he participated in an exchange on 7 November 1905, as follows:
Mr Groom… In Part XVI., provision is made to remedy a defect in the Act. Honorable members will remember that when the High Court came to deal with an allegation against a successful candidate of illegal practices in connexion with his election, it held that it had no jurisdiction to entertain the charge. Speaking from memory, I think their decision was that, if they could entertain it at all, it would have to be shown that illegal practise had been carried on to such an extent as to have really affected the election.
Mr Chanter… They said they had no jurisdiction.
Mr Groom... I think they said that if the common law applied at all, it would be only to that extent. They held that in the particular case, Chanter v. Blackwood, they had no jurisdiction whatsoever. We propose, in this Bill, to give the Court power to declare that any person returned as elected was not duly elected, or to declare an election absolutely void, on the ground that illegal practices were permitted in connexion with this election.
In Clause 51,. Proposed substituted clause 198A, it is provided that -
If the court of disputed returns finds that a candidate has committed or attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.
Then, in sub-clause 3 of the same clause; it is provided that -
The Court of disputed returns shall not declare that any person returned as elected was not duly elected or declare any election void -
(a) On the ground of any illegal practice committed by any person other than the candidate, and without his knowledge or authority; or
(b) On the ground of any illegal practice other than bribery or corruption or attempted bribery or corruption unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected, or that the election should be declared void.
73 Given the clear reference to Chanter (No 1) in the House, the importance of Lord Coleridge's statement of principle in the common law of elections, the distinguishing of bribery (and undue influence) from other illegal practices in s 198A, and thus the enshrining of the views of Willes J in respect of the consequences of the former, there can be little doubt that that part of the proviso "unless the court is satisfied that the result of the election was likely to be affected" was an attempt to encapsulate the aspects of Lord Coleridge's views or at least something less than proof of the fact that the result was affected, since language that tended to such a meaning was already available in s 200. There is every reason to view the Parliament as placing in s 198A the two aspects of the common law of elections expressed by two such eminent judges (Lord Coleridge and Willes J) of then recent times. Thus "likely to have been affected" can be seen as a real chance, or to paraphrase Lord Coleridge: that a majority has been prevented, or there are reasonable grounds to believe that a majority might have been prevented. Of course, it is important to attend to the language of the statute and not that of Lord Coleridge. This provision has been re-enacted into modern times. Over the period of those re-enactments the concise expression of Tillmanns Butcheries has encapsulated a convenient expression of meaning of the phrase "likely to" in an appropriate context. Consideration of the 1905 Amendment Act and its enactment history and the wider common law context of such make it plain that the context is apt for this meaning of the words.
74 The next important piece of enactment history occurred in the passing of the Commonwealth Electoral Act 1911 (Act No 17 of 1911) (the 1911 Amendment Act). Relevantly, there was added to the electoral offences in para 180(a) (which by this time had been amended by the 1905 Amendment Act and Act No 18 of 1906) and in paras 180(b) and (c), offences in paras (d) and (e) and the proviso to the whole section. Paragraphs (d) and (e) were the forerunners of s 329(1) and were, together with the proviso to that section, in the following terms:
(d) Printing, publishing, or distributing any electoral advertisement, notice, hand-bill, pamphlet, or card containing any representation of a ballot-paper, or any representation apparently intended to represent a ballot-paper, and having thereon any directions intended or likely to mislead or improperly interfere with any elector in or in relation to the casting of his vote;
(e) Printing, publishing, or distributing any electoral advertisement, notice, hand-bill, pamphlet, or card containing any untrue or incorrect statement intended or likely to mislead or improperly interfere with any elector in or in relation to the casting of his vote.
Provided that nothing in paragraphs (d) and (e) of this section shall prevent the printing, publishing, or distributing of any card, not otherwise illegal, which contains instructions how to vote for any particular candidate, so long as those instructions are not intended or likely to mislead any elector in or in relation to the casting of his vote.
75 The record of the discussion of the Bill that led to the 1911 Amendment Act in Committee on 19 December 1911 is illuminating. A version of paras (d) and (e) had been drafted by Mr Wise which he accepted had been "hastily drafted late at night". This version was replaced by a version of paras (d) and (e) and of the proviso that was proposed by Mr Fisher, the Prime Minister. Mr Fisher's proposal was in the form as enacted, except that the proviso was expressed to be limited to instructions "not intended to mislead any elector". The discussion was clear that the words "or likely" should be inserted in the proviso to reflect the substance of both paras (d) and (e). The discussion of these matters is revealing. Mr Wise referred to events that had occurred in a recent Victorian election in the district of Benambra and which had come to the attention of the member for Maribyrnong (who had moved the original paras (d) and (e)). Apparently, a card had been used in that election on one side of which was the direction to "vote for the progressive candidate", signed by the Secretary to the Women's National League. On the other side was what purported to be a copy of the ballot-paper for the division in which the figures 1 and 2 had been placed in squares opposite the two candidates' names. At the bottom of the notice there was printed:
Unless you mark your paper as above it will be void.
76 This had also been published in the Argus newspaper, but withdrawn when the Department of Home Affairs called attention to it. (The similarity of such a statement to the translations of the statements on the corflutes in this case is striking.) Mr Wise is recorded as saying (at p 4852):
There would have been no objection to the direction, "If you wish to vote for Craven, mark your ballot papers thus," but to say that the vote would be void if marked otherwise was a deliberate attempt to mislead the electors, such as we should discountenance. The proviso covers all cards honestly issued.
77 Discussion then took place about the need not to restrict the proviso to honesty alone. Two further matters should be noted. First, it appears clear that everyone in the discussion thought that with the addition of the words "or likely" to the proviso that the card used in Benambra would be covered by the provision. No one suggested it was not "in or in relation to the casting of the vote." Secondly, there was discussion of the likelihood of anyone actually being misled. Mr Mahon (Coolgardie) said at 4853:
In paragraphs d and e the words "directions intended or likely to mislead," are used, but in the proviso only the words "directions intended to mislead" appear. It seems to me that the same language should be used in both portions of the amendment. What directions would be likely to mislead would be difficult to decide. What might mislead an innocent like myself would not mislead experienced politicians like the Prime Minister and the Leader of the Opposition. This provision will probably give the police magistrates who have to deal with the cases brought under it a fine opportunity to display their political bias. They are sure to find that directions issued on behalf of their friends are not likely to mislead any intelligent person. If we think the electors not sufficiently intelligent to avoid being misled by the palpable misrepresentations which are sometimes circulated, we should leave no loop-hole for conflicting decisions under which one man may be punished and an other escape.
(Emphasis added.)
78 Whilst not too much can perhaps be taken from Mr Mahon's doubts about the impartiality of some magistrates, one is assisted by the whole discussion in that the provision can be seen to be directed to "any elector", the "innocent" and the "experienced". It is at least an indication that one does not eliminate the less than astute or less than careful elector from the intended operation of the section. After all, the vote of the unintelligent, innocent, gullible or inexperienced voter is equal to the vote of the intelligent, worldly, astute or experienced voter.
79 This background assists in a conclusion that a statement that voting for a particular candidate and in a particular order in order to cast a valid vote is misleading or deceptive in relation to the casting of an elector's vote and that it is likely to mislead or deceive if it is apt to mislead even unintelligent electors by palpable misrepresentations that are unlikely to mislead electors of reasonable intelligence and astuteness.
80 The decision in Bowen v Bridge in 1916 provoked strongly worded dissenting judgments of Griffith CJ and Barton J. The case did not concern the 1902 Act as amended, but a New South Wales statute. Chief Justice Griffith saw the majority as overturning Chanter (No 1) and (No 2), as well as other cases of Hirsch v Phillips (1904) 1 CLR 132 and Blundell v Vardon (1907) 4 CLR 1463. That this debate occurred in 1916 does not remove the contextual importance of the Chanter cases to the passing of the 1905 amendments.
81 In 1918 there was a consolidation and amendment of the 1902 Act as amended in Act No 27 of 1918 (the 1918 Act). Section 180 became s 161, s 182 became s 170, s 197 became s 189, s 198A became s 191, and s 200 became s 194.
82 In 1922, an amendment was made to s 194 (the old s 200). The amendment was provoked by the decision of Isaacs J (sitting alone as the Court of Disputed Returns) in Kean v Kerby. At 27 CLR 457-458, Isaacs J referred to Chanter (No 2) at 131 and Bridge v Bowen. He said that the former (Griffith CJ's dispositive reasoning) could not be reconciled with the majority's decision in the latter. He then referred to the text of the relevant English statute in comparison to s 194, as follows at 27 CLR 458:
In England it is enacted that no election shall be declared invalid by reason of non-compliance with the election rules or mistake in the use of the forms, if it appears to the tribunal (1) that the election was conducted in accordance with the principles laid down in the body of the Act, and (2) that such non-compliance or mistake did not affect the result of the election. 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 sec. 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."
83 At 27 CLR 459, he resolved the case by reference to Bridge v Bowen, as follows:
The case of Bridge v. Bowen shows that, in view of the onus, unless the fact of intention is proved, the election, so far as it depends on the refusals I have mentioned, cannot be disputed. The matter must be determined on principle.
84 Thus, Isaacs J introduced into Commonwealth electoral law, as he and the majority had in relation to the New South Wales provision in Bridge v Bowen, a need, if the onus was to be discharged, of proving how people would have or did vote. Immediately after the above passage at 459 he continued at 459-460:
The fundamental common law principle is that "elections ought to be free." That basic principle was reaffirmed and enforced by the Statute 3 Edw. I. c. 5. It lies at the root of all election law. For centuries parliamentary elections were conducted by open voting. Freedom of election was sought to be protected against intimidation, riots, duress, bribery, and undue influence of every sort. Nevertheless it was found necessary to introduce the ballot system of voting. The essential point to bear in mind in this connection is that the ballot itself is only a means to an end, and not the end itself. It is a method adopted in order to guard the franchise against external influences, and the end aimed at is the free election of a representative by a majority of those entitled to vote. Secrecy is provided to guard that freedom of election. It is common ground, however, that in some cases, which need not be particularized, the Court is at liberty to inquire how a person voted. Sec. 190 provides that "the Court … may inquire into the identity of persons, and whether their votes were improperly admitted or rejected, assuming the roll to be correct." Reading that section with sec. 194 (already quoted), it cannot be doubted that in some instances of actual voting it is proper for the Court to ascertain how a person voted. It is, in my opinion, impossible to contend that a person who was refused a ballot-paper altogether is in a worse position to defend his right of voting than if he had received a ballot-paper and his vote had been wrongly disallowed. And in such a case how is he to protect his right of franchise, which is the most important of all his public rights as a member of a self-governing community? The ballot, being a means of protecting the franchise, must not be made an instrument to defeat it. When a vote is recorded in writing, no doubt the writing itself is the proper evidence of the way the elector intended to vote. When it is not recorded, the only means of establishing that intention is the evidence of the elector himself. That is the only mode of protecting the right which an elector has endeavoured to exercise and has been prevented by official error from exercising.
85 This decision led the Parliament in s 25 of Act No 14 of 1922 (the Commonwealth Electoral Act 1922) (the 1922 Amendment Act) to omit the words "shall not be proved to have affected" and insert in their stead "did not affect" and to insert the proviso to s 194 now seen in the proviso to s 365 (see [18] above).
86 In debate in the House of Representatives on 14 September 1922 the proposed amendments were discussed. The Attorney-General, Mr Groom, said in the Second Reading Speech at pp 2268-2269 of Hansard:
Clause 27 [which became s 25] embodies another important amendment. The point with which it deals arose in the disputed Ballarat election. The principal Act provides -
No election shall be avoided on account of any delay in the declaration of nominations, the polling, or the return of the writ, or on account or the absence or error of an officer which shall not be proved to have affected the result of the election.
Mr. Justice Isaacs, in his judgment in the case of Kean versus Kerby, said -
The Australian Act differs very considerably from the English legislation in several respects relevant to this case. Particularly I refer to the duty of the Court in the case of official errors. In England it is enacted that no election shall be declared invalid by reason of noncompliance with the election rule or mistake in the use of the forms, if it appears to the tribunal (1) that the election was conducted in accordance with the principles laid down in the body of the Act, and (2) that such non-compliance or mistake did not affect the result of the election. 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 section 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.
Honorable members will observe the difference between the two Statutes. The Commonwealth electoral law provides that no election shall be avoided on account of an error which shall not be proved to have affected the result of the election, whereas the English law provides that no election shall be invalid by reason of any mistake if it appears to the tribunal that the mistake did not affect the result of the election. Clause 27 proposes to apply the wording of the English law, and do away with the necessity for admitting evidence as to how a voter intended to vote.
87 Section 365 would now have to be construed and understood in this context.
88 Passing over various amendments up to 1983, by Act No 144 of 1983 (the Commonwealth Electoral Legislation Amendment Act 1983), s 161 was replaced by a new form of words closer in terms (at least in s 161(1)) to s 329(1), as follows:
161. (1) A person shall not, during the relevant period in relation to an election under this Act, print, publish or distribute, or cause, permit or authorize to be printed, published or distributed, any matter or thing that is likely to mislead or deceive an elector in relation to the casting of his vote.
(2) A person shall not, during the relevant period in relation to an election under this Act, print, publish or distribute, or cause, permit or authorize to be printed, published or distributed, any electoral advertisement containing a statement-
(a) that is untrue; and
(b) that is, or is likely to be, misleading or deceptive.
(3) A person shall not, during the relevant period in relation to an election under this Act, print, publish or distribute, or cause, permit or authorize to be printed, published or distributed, an advertisement, handbill, pamphlet or notice that contains a representation or purported representation of a ballot-paper for use in that election that is likely to induce an elector to mark his vote otherwise than in accordance with the directions on the ballot-paper.
(4) A person who contravenes sub-section (1), (2) or (3) is guilty of an offence punishable on conviction-
(a) if the offender is a natural person-by a fine not exceeding $1,000 or imprisonment for a period not exceeding 6 months, or both; or
(b) if the offender is a body corporate-by a fine not exceeding $5,000.
(5) In a prosecution of a person for an offence against sub-section (4) by virtue of a contravention of sub-section (1), it is a defence if the person proves that he did not know, and could not reasonably be expected to have known, that the matter or thing was likely to mislead an elector in relation to the casting of his vote.
(6) In the prosecution of a person for an offence against sub-section (4) by virtue of a contravention of sub-section (2), it is a defence if the person proves that he did not know, and could not reasonably be expected to have known, that the electoral advertisement contained a statement of the kind referred to in sub-section (2).
(7) In this section-
'electoral advertisement' means an advertisement that is intended or calculated to affect the result of an election;
'publish' includes publish by radio or television.
89 It is to be noted that s 161(2) was a general provision prohibiting statements likely to be misleading or deceptive (not limited to a relationship with the casting of the vote). This subsection was repealed one year later by s 5 of Act No 133 of 1984, the Electoral and Referendum Amendment Act 1984. By this time the Act had also been renumbered.
90 In 1998, by Act No 94 of 1998, subsection (3) of the previous s 161 (now s 329) was repealed.