(This form of direction replaced a direction previously formulated (in 1928) directing the striking out of the inappropriate ground, but did not make clear who was to do the striking out.)
39 The complaint made in Penboss was that the direction (as in force at the relevant time) made it clear that the striking out was required to be done by the elector himself or herself, and not by somebody else. In fact, what had happened was that the electoral staff, by reference to the original application for a postal vote, struck out the inappropriate grounds on which a postal vote was sought. That complaint was rejected by Slattery J, who held that, as the Form 2 also required a signed declaration by the elector as to the accuracy of the information, the physical act of striking out by somebody else did not invalidate the vote.
40 Finally, in Raggatt v Fletcher and Willunga District Council (1990) 69 LGRA 367 the Full Court of the Supreme Court of South Australia considered the effect of non-compliance with a requirement that a ballot paper be authenticated by the initials of the officer by whom it is issued. The Court found that, notwithstanding non-compliance in that respect, the ballot paper(s) in question should be counted.
41 It will be appreciated that none of the cases to which I have referred bears any relevant factual similarity to the present. I was not referred to any case which could be said to be directly or even indirectly factually comparable, and my own (necessarily hasty) researches have not disclosed any.
42 In a number of the authorities, the question of the impact of non-compliance was considered in the context of the traditional dichotomy between "directory" and "mandatory" enactments. That distinction has been relegated to history: see the judgment of the majority in the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355. The test now to be adopted is whether the legislature intended that non-compliance with a statutory provision should render the non-complying act invalid.
43 Specifically, what I have to consider is the importance the legislature attached to the prescribed process for pre-poll voting. In my view, two propositions may be taken to emerge. The first is that, prima facie, an election is to take place on a single day. So far as possible, all electors are required to vote on the same day, the day declared for the poll. It is not difficult to discern the, or a, reason for this as a matter of policy. Elections are frequently characterised by significant fluidity. Events may occur, at any time up to, and even including, the date of the poll, which might affect or influence or alter voting intentions. By way of extreme example, it can be seen that some information of a scandalous character affecting a candidate might come to light as late as the day before the day of the poll. Electors who had already cast their votes obviously would have done so without access to the same information as the electors who cast their votes on polling day. Their votes are un-reclaimable, but, as it turns out, uninformed, or insufficiently informed. Desirably, an election represents a snapshot, taken on election day, of the electorate and its intentions, intentions informed in the light of up to date information.
44 The other side of this coin is that which is recognised by the provisions for postal, declared institution, and pre-poll voting. The circumstances which qualify a constituent to votes of these kinds are such as, if no provision were made to accommodate them, would effectively disenfranchise some part of the electorate. Desirable as is the "snapshot" principle, it is equally desirable that as few individuals as possible be prevented from casting a vote and that the result of the election reflect the wishes of as many constituents as possible. The qualifications for postal and pre-poll voting are designed to strike a reasonable balance between achieving the desirable goal of an election which takes place on a single day, and the equally desirable goal of accommodating electors in circumstances which would otherwise prevent them or hinder them from participating in the electoral process.
45 What flows from this, however, is that postal and pre-poll voting are intended to be restricted to those circumstances which are identified in cll. 43 and 51. This is no mere bureaucratic regulation, but a matter of substance.
46 The second proposition which I draw from an analysis of the Regulation is that there is an emphasis upon the security of ballot papers cast in accordance with Part 7, Division 2. It is for that reason that I have referred in some detail to the provisions relate to permitting, recording, holding and eventually counting pre-poll votes. Again, a balance is struck. On one hand, those electors who have opted for, and been permitted to use, the pre-poll voting procedure, are identified by the maintenance of the list required by cl. 52(3); on the other, the secrecy of that elector's ballot is preserved by the sealed envelope procedure and the provisions of cll. 78 and 81 as to counting. Another purpose of the Regulation is the avoidance of any fluctuation in result by disclosure of already cast votes. The secrecy of the pre-poll and postal votes ensures that votes already cast will not themselves become a factor in the election.
47 In my opinion, there was, in fact, no real danger occasioned to the secrecy of the ballot procedure by the course taken by the returning officer. I infer from the evidence that the integrity of the sealed ballot boxes was maintained and that the votes were (or would have been, had the defendant not determined that they should not be counted) counted in a fashion that parallelled the counts of ballot papers cast on voting day. Indeed, as I read the evidence, the procedure, from start to finish, approximated the procedure applicable to votes cast on election day. There is no reason to conclude other than that the secrecy of the ballot box was maintained.
48 Of more difficulty is the departure from the Regulation requiring identification of the qualification for a pre-poll vote. In this respect, the number, and the relatively high proportion it bears to the overall vote, of the pre-poll votes is of significance. No evidence was directed to the relationship that that proportion in this election bears to previous elections in the electorate, or to other electorates, and no attention was paid, during the hearing, to the question of whether the number was disproportionate. However, the pre-poll votes at just two polling places amounted to 16% of the overall vote, which strikes me as being of real significance. It simply cannot be known whether those electors were in fact qualified to vote as they did.
49 In the circumstances, having regard to the purposes of the rather stringent provisions limiting pre-poll voting, I have concluded (somewhat reluctantly) that the votes were properly excluded from the count.