Kane v McClelland

John Thomas Kane, a candidate at the election held on 9th December 1961 of five members for the State of New South Wales to serve in the Senate, filed a petition on 9th March 1962 in this Court as the Court of Disputed Returns. There were twenty-five candidates for the five seats to be filled. The petition seeks a declaration that certain ballot-papers ought not to have been rejected as informal but should have been counted as formal, a declaration that Douglas McClelland, one of the five candidates who was declared elected, was not duly elected and a declaration that the petitioner should be declared duly elected. The ballot-papers to the rejection of which as informal the petitioner objected are described in the petition. The description contained in the petition of these ballot-papers is sufficient to enable the question whether it was right or was wrong to reject them as informal to be decided as a matter of law without first undertaking the heavy task of examining and counting them and so ascertaining how, as between the respondent and the petitioner, the election would be affected if the classes of voting papers in question were counted as formal instead of being rejected as informal. A reference was therefore made to the Full Court of the question, which was formulated in these terms: Whether, assuming the facts to be as alleged in certain paragraphs of the petition, ballot-papers of the respective classes referred to in par. 15 of the petition should have been counted as formal in ascertaining the result of the polling at the election referred to in the petition. What par. 15 of the petition alleges is this: "A large number of the ballot-papers rejected as informal were marked not by the placing of the number 1 in the square opposite the name of one candidate and the numbers 2 to 25 inclusive in the squares opposite the names of all the remaining candidates but (a) by the placing of the numbers 3 to 27 inclusive or 4 to 28 inclusive or 5 to 29 inclusive or 6 to 30 inclusive or so on or (b) by the placing of 25 different numbers which were not consecutive such as the numbers 1 to 24 inclusive and some number higher than 25 or of the numbers 1 to 12 inclusive and 14 to 26 inclusive." From an earlier paragraph as well as from an unused ballot-paper that was handed up to us, it appears that there were twenty-five candidates arranged in nine columns, the first eight of which contained lettered groups and the ninth three candidates not shown as a group. Six of the groups, viz. those lettered A, B, D, E, F and H contained three names each opposite a lettered square in a column and two groups, viz. those lettered C and G, contained two names in a column. There was of course a square on the left of each of the twenty-five names in which the preference of the voter was to be marked. The groups were the consequence of ss. 72A and 105A of the Commonwealth Electoral Act 1918-1961 Cth. The ballot-paper was in substantial accordance with Form E in the Schedule to the Act. Contained in Pt XIII of the Act, a part headed "The Polling", is s. 123. Sub-section (1) (a) of that section is as follows: "(1) In a Senate election a voter shall mark his vote on his ballot-paper as follows: (a) Where his ballot-paper is a ballot-paper in accordance with Form E in the Schedule - he shall place the number 1 in the square opposite the name of the candidate for whom he votes as his first preference, and shall place the numbers 2, 3, 4 (and so on, as the case requires) in the squares opposite the names of all the remaining candidates so as to indicate the order of his preference for them;". Sub-section (2) of s. 123 deals with the special case of a candidate dying between nomination and polling day, an event that did not occur in the present case. The sub-section which was inserted by Act No. 9 of 1934, provides that a ballot-paper in such a case shall not be informal by reason only (a) of the inclusion on the ballot-paper of the name of the deceased candidate; (b) of the marking of any consecutive number opposite that name; or (c) of the omission to place any number opposite that name, or of any resultant failure to indicate in consecutive order the voter's preferences. The reason for mentioning this is its bearing upon s. 133, a provision which perhaps may be regarded as governing the question we are to decide. That section stands in Pt XIV of the Act which is headed "The Scrutiny". Section 133 (1) (b) is as follows: "(1) A ballot-paper shall (except as otherwise provided by section one hundred and twenty-three of this Act, and by the regulations relating to absent voting on polling day or to voting by post) be informal if - (b) in a Senate election, it has no vote indicated on it, or it does not indicate the voter's first preference for one candidate and the order of his preference for all the remaining candidates:". There follows a proviso which deals with the case of the square opposite one candidate being left blank, a thing which did not occur in any of the cases mentioned in par. 15 of the petition. But as the proviso may be thought perhaps to bear on the meaning of s. 133 it may be well to set it out; it is as follows: "Provided that, where the voter has indicated his first preference for one candidate and his consecutive preferences for all the remaining candidates except one and the square opposite the name of that candidate has been left blank, it shall be deemed that the voter's preference for that candidate is his last and that accordingly he has indicated the order of his preference for all the candidates." Paragraph (a) of s. 133 (1) deals with the failure of the presiding officer to initial the ballot-paper or place an official mark upon it and par. (d) with the case of the ballot-paper bearing some unauthorized mark or writing by which the voter can be identified. Paragraph (c) relates to an election for the House of Representatives. Sub-section (2) provides: "A ballot-paper shall not be informal for any reason other than the reasons specified in this section, but shall be given effect to according to the voter's intention so far as his intention is clear." This sub-section definitely confines the grounds of informality in a ballot-paper to "the reasons specified in this section". It is to be noticed that sub-s. (1) begins by an affirmative statement to the effect that if any of the paragraphs are contravened by a ballot-paper it shall be informal. But by the bracketed words it excepts from that statement inter alia cases falling within s. 123 and since sub-s. (2) of s. 123 is the only part of it which pronounces for and not against formality, that is equivalent to excepting the operation of sub-s. (2) of s. 123. The result is that, in the case of a ballot-paper for the Senate, it is to be regarded on the scrutiny as informal if it contravenes pars. (a), (b) or (d) of s. 133 (1) and is not saved by sub-s. (2) of s. 123 or (and this is mentioned only for completeness) by the regulations relating to absent voting on polling day or to voting by post. Paragraphs (a) and (d) and the exception in the bracketed words in s. 133 (1) may be ignored as having no application to the ballot-papers now in question. The problem of this case arises under par. (b) of sub-s. (1). Can it correctly be said that ballot-papers of the description contained in par. 15 of the petition "indicate the voter's first preference for one candidate and the order of his preference for all the remaining candidates"? If the direction to the voter contained in s. 123 (1) is to be imported into s. 133 (1) (b) as prescribing strictly the exclusive way of "indicating" preferences the answer to this question must assuredly be an unhesitating No. And in Blakey and Findley v. Elliott [1] , Starke J. applied s. 133 on the footing that a Senate ballot-paper in accordance with Form E in the Schedule must be held informal if the voter had not complied exactly with the directions contained in s. 123 (1) (b). His Honour seems to have regarded sub-s. (2) of s. 133 as "immaterial" "once the conclusion is reached that the statute lays down a definite and imperative rule for marking preferences in Senate elections" [2] . If that were his Honour's view it seems to go too far. Doubtless s. 123 (1) (a) lays down for the voter at polling a definite and precise rule which he is directed to follow. But s. 133 (1) (b) employs language a little less specific and sub-s. (2) of that section not only confines the grounds of invalidity to those stated in sub-s. (1) but goes on to provide that the ballot-paper shall be given effect to according to the voter's intention so far as his intention is clear. This must mean that on "the scrutiny" deviations from what is prescribed by s. 123 (1) (a) in the case of a Senate ballot-paper which accords with Form E shall not necessarily mean informality if the ballot-paper satisfies the requirements of par. (b) of s. 133 (1) by a clear, that is unmistakable, indication of the voter's intention. Doubtless placing the first and 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 is 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. It is at this point that the petitioner's case fails. It may be a shrewd guess that the voter who began his numerical sequence with the figures 3, 4, 5 or 6 and maintained it by the requisite number of figures to make 25, 26, 27, 28, 29 or 30, as the case may be, was led to begin the sequence by some error, mistake or trick of the mind which made the lowest figure equivalent to one. Hypotheses may be suggested that led the many voters who fell into some such error to take that course but no one can say with sufficient certainty that the lowest figure in a sequence which does not begin with one necessarily expresses the voter's first preference. To state or investigate the imaginary hypotheses which may explain such errors is not to the point. It is enough to say that it is an inference and not a clear expression or "indication" of the voter's intention. In the cases where the ballot-papers were filled in with twenty-five different numbers beginning with one but with a break so that the highest number was twenty-six or some greater number perhaps a more plausible indication of the voter's intention is afforded. This may be particularly true of the omission of the number thirteen which perhaps may be attributable not to error but to a desire on the part of the particular voter who did it to omit that figure, but even that is nothing but a conjecture or guess. One cannot be certain that the voter intended the broken numerical order really to express his preferences. It is to be noticed that s. 133 (1) (b) requires, subject to the proviso, that the voter's first preference for one candidate must be indicated and the order of his preferences for all the remaining candidates. That is imperative. Can it be said with certainty that his failure to use the numbers from one to twenty-five is nothing but a mistake, leaving it still certain what his intended order of preference was? It seems to go too far to say that a voter so filling in his ballot-paper indicated his order of preference with the certainty that is required. For these reasons the question referred to the Full Court should be answered No.

1. (1929) 41 C.L.R. 502. 2. (1929) 41 C.L.R., at pp. 506, 507.