Petitioner v Respondent

2 By a petition filed on 5 January 2015 ('the petition') in the Supreme Court of Victoria, acting as the Court of Disputed Returns for the purposes of the Electoral Act 2002 (Vic) ('the Act'), the petitioner seeks a declaration under s 125(g) of the Act that the election of all Parliamentary representatives in all 88 Legislative Assembly districts and eight Legislative Council Regions is void. The result would be that the State general election would need to be conducted again.

3 Notice of the petition was given to each of the successful candidates of the region in which she stood for election, and in the region and district in which she was enrolled as an elector, being the five successful candidates in the Northern Metropolitan Region, each of the five successful candidates in the Eastern Metropolitan Region and the successful candidate in the Ivanhoe district. At the return of the petition, the respondent, the Victorian Electoral Commission ('the Commission') appeared to oppose the petition.

4 The principal claim made by the petitioner was that the procedures and arrangements for early voting at the State general election miscarried, thereby invalidating the general election. According to the petitioner, there were 3,806,301 electors enrolled to vote at the State general election when the roll closed on 11 November 2014. There were 896 candidates across all electorates. About 898,552 electors voted early at early voting centres, and there were 302,794 postal votes. There were around 100 early voting centres in Victoria. On this basis, approximately 31.56% of enrolled voters, totalling 1,201,346 electors, voted before election day.

5 The petitioner relied on a document entitled 'Statement of Issues' ('the statement of issues'), which contained the following matters:

1. Whether the Court has jurisdiction on:

a. the application of the petitioner; and

b. the basis of the petition

to order that the election of parliamentary representatives in 88 Legislative Assembly districts and 8 Legislative Council regions held on 29 November 2014 is void.

1. If not, whether in respect of any election (as that term is used in the Electoral Act 2002 (Vic) (the 'Act')) referred to in the petition it is possible to read down the terms of the petition so that the Court has jurisdiction to:

a. order that that election is void; or

b. provide alternative relief.

1. The proper construction of sections 98 and 99 of the [Act] in relation to early voting and in particular the nature of:
   1. an application required by section 98 to be made under section 99; and
   2. the declaration required to be made in that application.
2. The nature of the duties of an election manager upon receiving an application under section 99 of the Act and in particular the extent to which he or she should:

1. ensure that a declaration is made as required by section 98(b) of the Act; 2. satisfy himself or herself, whether from that application, that declaration or otherwise, that the person making that application has reasonable grounds to consider that they are 'unable' to attend an election day voting centre as required by section 98(a) of the Act, as opposed to having that preference;

1. ensure that each application or declaration is recorded; and

1. ensure that each application or declaration is made or recorded in writing.
2. Whether an election manager upon receiving an application under section 99 of the Act has a discretion to approve or reject that application and if so, the requirements of the law as to the exercise of that discretion.
3. Whether the Act requires that unless reasonable cause is shown in accordance with Part 6, Division 3 of the Act voters must vote on election day so that:
   1. candidates are able to campaign effectively for the whole of the period commencing on the final nomination day and concluding on the day before the election day; and
   2. voters have a reasonable opportunity to consider the effect of preference arrangements on the outcome of an election.
4. Whether, if a person votes at an early voting centre without:
   1. successfully making an application under section 99; or
   2. making a declaration in that application

1. Whether, in relation to the issues identified in paragraphs 3-7 of this statement of issues, the conduct of voting at early voting centres in either:
   1. the election referred to in the terms of relief sought by the petition; or
   2. each election in respect of which the Court has jurisdiction by reason of the reading down of the terms of the petition as discussed in paragraph 2 of this statement of issues

(the 'Election') complied with the Act.

9. Whether, if in respect of an Election:

1. the proportion of votes recorded at early voting centres is substantially in excess of the proportion of those votes in previous elections, when voters making application to vote at early voting centres were required to apply in writing and make a written declaration;
2. the conduct of voting at early voting centres for the Election does not comply with the Act in relation to any one or more of the issues identified in paragraphs 3-7 of this statement of issues;

1. as a result there is a substantial basis to apprehend that a significant number of voters voted early who should not have done so; and

1. there are reasonable grounds to expect that either:
   1. a significant number of those early voters would have changed or reconsidered the way they voted if they had attended and voted at an election day voting centre; or
   2. the confidence of the voters in the election would be weakened or damaged by that lack of compliance

those facts are themselves sufficient to demonstrate an affect upon the outcome of the Elections or whether something more needs to be proven and if so what.

1. Whether on the basis of the issues identified in this statement of issues, the Election should be declared void.[1]

6 The petitioner and the Commission relied on evidence by way of affidavits. Neither party sought to cross-examine any deponent. Each party raised objections to the other party's evidence. The Court of Disputed Returns is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures.[2] It is not necessary to finally determine the objections to evidence, as they make no difference to the result.

7 In an affidavit sworn on 4 February 2015, the petitioner gave evidence that as a candidate, she attended early voting centres in the Northern Metropolitan Region while early voting was in progress. She said that, at the Broadmeadows early voting centre, a volunteer for her party who handed out how to vote cards over two days of voting informed her that electors were not being asked whether they were unable to vote on election day. The volunteer said that he voted at that early voting centre and was not asked whether he was unable to vote on election day.

8 During a visit to the Mill Park early voting centre, the petitioner was informed by electors who were leaving that they were not asked if they were unable to vote on election day.

9 At the Pascoe Vale early voting centre, the petitioner approached a number of people who stated that when they voted they were not asked if they were unable to vote on election day.

10 At the Preston early voting centre, a candidate for the Liberal Party and two of his supporters advised the petitioner that electors were not being asked whether they were unable to vote on election day. Two Labor Party supporters stated that electors were not being asked at that centre whether they were unable to vote on election day. One of the Labor Party supporters stated that when she voted she was not asked whether she was unable to vote on election day.

11 The petitioner stated that she was advised by David Ellis - a fellow Rotarian - that he and his sister voted at the Ringwood early voting centre. Neither was asked whether they were unable to vote on election day. The same experience was reported by Mario Laing, a candidate of the Palmer United Party, when voting early at the Burwood East early voting centre. He was not asked whether he was unable to vote on election day. The petitioner's aunt, Gail Hamilton, and her husband, Fred Hamilton, voted at the Mordialloc early voting centre. They informed the petitioner that neither of them were asked whether they were unable to vote on election day.

12 The petitioner also relied on a number of affidavits sworn by candidates or voters at the State general election:

(1) Mr Alan Menadue was an independent candidate for the Legislative Assembly seat of Prahran. He was an elector both in that seat and in the Legislative Council Southern Metropolitan Region. He was told by a Commission staff member that Commission staff were not asking voters if they had a reason to vote early or could not vote on election day. Mr Menadue also heard general announcements made by Commission staff at that early voting centre. None of the announcements stated that electors could only vote early if they were unable to attend a voting centre on election day. He spoke to approximately six electors who had voted early at the Prahran early voting centre. They advised that they were not asked to make any statement to the effect that they were entitled to vote early.

(2) Ms Stella Kariofyllidis, a retired bank officer, and former Mayor of the City of Moreland stood as a candidate for the Legislative Assembly in the Brunswick district for the People Power Victoria political party. She was also an elector in the Legislative Assembly district of Brunswick and in the Legislative Council Northern Metropolitan Region. She voted early at the Brunswick early voting centre, but was not asked whether she was unable to vote on election day. Family members who were also electors voted early. They were not asked whether they were unable to vote on election day. At the very busy Brunswick early voting centre, she did not observe any intending early voter leaving without having voted.

(3) Ms Isabell Collins, a retired executive director and nurse, said that she voted at the Brunswick early voting centre one morning when no or few electors were present. When she voted, staff at the early voting centre asked her to give her name, address and state whether she had previously voted in the election. They did not ask her any other question. She did not make a declaration that she was unable to vote on election day.

(4) Mr Trevor Dance, an operations manager, said that he was a candidate for the Palmer United Party in the Legislative Council's Western Metropolitan Region. He was also an elector in the Legislative Assembly district of Sunbury and in the Legislative Council Western Metropolitan Region. He voted at the Sunbury early voting centre. While he was asked for his name and address, he was not asked whether he was able to vote during the hours of voting on election day. He did not make a declaration that he was unable to attend an election day voting centre during the hours of voting on election day. On another occasion, he visited the St Albans early voting centre. He said that he was told by a senior staff member of the Commission that processing early voters was made quicker by the staff not asking whether electors who presented to vote early were unable to vote on election day.

(5) Ms Joanne Bozin, a diversional therapy coordinator, said that she was an elector in the Legislative Assembly district of Bundoora and in the Legislative Council Northern Metropolitan Region. On 18 November 2014, she voted at a mobile early voting centre that visited the aged care facility in Camberwell where she worked. During that visit, a number of residents - as well as family and friends of residents who were regular or occasional visitors of the facility - voted early. She was invited by the staff conducting the mobile early voting centre to vote early during the visit, which she did. When she voted, she was not asked whether she was unable to vote on election day. She was not asked to make a declaration of any sort. When she observed and heard others voting, the Commission's staff followed the same procedure. She did not hear any early voter asked whether he or she was unable to vote on election day or to make a declaration of any sort.

(6) Mr Gregory King, a publishing consultant, said that he is an elector in the Legislative Assembly district of Bulleen and in the Legislative Council Eastern Metropolitan Region. While passing through the baggage hall on the ground floor of the QANTAS terminal, on the way to Sydney with his wife, he observed that an early voting centre was operating. Although neither he or his wife had previously considered voting early, they proceeded to do so as they had available time. When he voted early, staff at the early voting centre did not ask him whether he was unable to vote on election day. He was not asked to apply to vote early or to make a declaration of any sort. He voted early purely for convenience. After voting, Mr and Mrs King caught their flight to Sydney. By election day, both had returned home from Sydney. There was no reason why they were unable to vote on election day.

13 The Commission relied on the affidavits of four members of its staff. Ms Elizabeth Williams has been the Deputy Electoral Commissioner for the State of Victoria since 2005. Ms Williams is also the manager of the Elections Branch of the Commission, with responsibility for contractual and operational aspects of election services. Ms Williams stated that 56 election managers were appointed for the State general election. Each manager was responsible for one or two districts.

14 Ms Williams stated that each election office, with one exception, also operated as an early voting centre. The period of early voting was from Monday 17 to Friday 28 November 2014 ('the early voting period'). The Commission established 45 additional early voting centres, giving a total of 100 early voting centres in Victoria.

15 Ms Williams gave evidence as to early voting advertising, guides, brochures, TV and radio advertising, signage and billboards. She said that the early voting advertising made it clear that early voting was only available to electors who were unable to go to a voting centre on election day.

16 Staff at early voting centres are appointed by election managers. There was an early voting centre manager for each early voting centre. Early voting centre managers were responsible for training and daily supervision of officers to ensure that approved procedures were followed.

17 Election managers and assistant election managers completed five days of formal training conducted by the Commission, and approximately 20 hours of home study prior to the State general election. A full-day final briefing of election managers was conducted by the Commission in October 2014.

18 Procedures for the conduct of early voting were covered during training, including the requirement that early voters be asked to confirm that they are unable to attend a voting centre on election day. One slide dealing with early voting and entitled 'Who can vote early?' used during the training program states:

If an elector makes an oral declaration that they are unable to attend an election day Voting Centre during the hours on election day.

Elector must be asked, 'Are you unable to vote on Election Day?'

19 The speaker's notes used in the training program state in substance:

a declaration is made that they are unable to attend an election day Voting Centre during the voting hours on election day

In practice this will mean that the EVCO MUST ask the question such as, 'Are you unable to vote on Election Day?'

20 Training of early voting centre managers was the responsibility of election managers or assistant election managers. A training module was produced by the Commission for this purpose. At page 5 under the heading 'Procedures for issuing early votes are to be covered including', the training module states: 'Initial question which must be asked regarding being unable to attend a voting centre on election day'.

21 The 2014 Victorian State Election Early Voting Manual ('the Early Voting Manual'), produced by the Commission, was provided to early voting centre managers and staff. It requires all electors seeking to vote at an early voting centre to be asked whether they are unable to vote on election day. At page 14, the Early Voting Manual states: 'In an early voting centre all electors (apart from those eligible to use vote equipment) must firstly be asked the question "You are unable to vote on election day?"'

22 The 2014 State Election Manual ('State Election Manual') is intended to be a comprehensive reference document that guides election managers in managing all aspects of their role in their appointed district or districts. At page 156, the State Election Manual says:

To vote early at an early voting centre an elector must be enrolled or entitled to be enrolled and unable to attend a voting centre on election day. This means that the elector must be asked a question such as, 'You are unable to vote on election day?'[3]

23 Issue 16 of the 2014 Victorian State Election EO Bulletin ('the EO Bulletin'), produced by the Commission, gives specific directions to election managers to ensure that early voting staff follow correct procedures and confirm that electors are unable to vote on election day. The EO Bulletin states:

Ensure all early voting staff are following correct procedures and confirming electors are unable to vote on election day. This situation will be monitored over the opening days. Any concerns should be communicated to your ESO.

24 Ms Williams deposed that the Commission was particularly focussed on early voting procedures for the State general election. Significant increases in early voting numbers had been observed across Australia. The requirements for early voting were addressed through training, publications, briefings, manuals, advertising and supervision.

25 Ms Williams described the correct procedure when an elector seeks to vote early. The elector should normally be asked four questions, only the first of which is unique to early voters:

If the elector appropriately answers each of the four questions, the elector's name is marked off an electronic copy of the roll, and an early vote is issued. In some circumstances, where a full electronic roll is not available to election staff, electors complete a declaration envelope.

26 The Commission also relied on a number of affidavits sworn by election managers for the State general election:

(1) Mr Robert Guest was the election manager for Footscray and St Albans districts. He is an experienced election officer, having served as a manager or assistant manager for 12 elections and by-elections over more than 16 years. He undertook five days of training conducted by the Commission, and completed approximately 20 hours of home study in preparation for his role as an election manager at the State general election. He found that early voting at the Footscray early voting centre was generally slow during the first few days of voting. However, numbers increased steadily through the voting period. During the early voting period, he was unaware of any incidents of non-compliance with early voting procedures. No instances of non-compliance at the Footscray early voting centre were brought to his attention. He investigated an allegation that the question on ability to vote on election day was not being asked at the St Albans early voting centre. He was assured by the St Albans early voting centre manager that the procedures were being followed and that there was no basis for this allegation. As far as he was concerned, there were no clear instances of non-compliance identified in relation to the Footscray and St Albans early voting centres.

(2) Mr Edward Marks was the election manager for the Sunbury district for the State general election. His experience as an election officer extends over 40 years in State, federal and council elections. He completed the training sessions and home study required by the Commission. As manager for the Sunbury district, his responsibilities included early voting at Melbourne Airport. The airport was visited by an assistant election manager or by himself daily to ensure that procedures were being followed and all resources were available. Mr Marks said that early voting was busy, with voters attending at a regular volume. The numbers increased as election day approached; with queues outside the doors at some stages, particularly in the last few days. As far as he knew, there were no reports of non-compliance with election procedures. There were no clear instances of non-compliance identified in relation to the early voting procedures at either the Sunbury or Melbourne Airport early voting centres.

(3) Ms Christine Browne was the election manager for the Brunswick and Pascoe Vale districts in the State general election. Her past experience as an election manager or officer at federal and State elections dates back to 2009. She also completed the training and home study required by the Commission. She conducted a three-hour training session for early voting centre managers approximately one week prior to the commencement of the early voting period. Early voting officers were trained 'on the job' and were directly supervised by the early voting manager. A daily debrief took place. Random observation and supervision were undertaken to ensure that the procedures were adhered to. Ms Browne said that when the early voting centre doors opened on 17 November 2014, all staff were briefed about the procedure. The question in the manual was amended to read: 'You are here to vote early, you're not able to vote on Election Day?' When electors confirmed this, they were then asked the standard three questions which are put to all voters. If appropriate answers were given to these questions, early voting centre staff would proceed to issue a vote. A few days after the commencement of early voting, a query was raised by Brian Cooney - an election support officer with the Commission - about whether the question about being unable to vote on election day was being asked. Ms Browne says that she took immediate action by informing the early voting centre manager of the alleged non-compliance to ensure that all staff followed correct procedures. The early voting centre manager confirmed that electors were being asked if they were unable to attend a voting centre on election day. To the knowledge of Ms Browne, there were no further instances of alleged non-compliance identified in relation to early voting procedures. She said that from her own knowledge she had no reason to doubt the soundness of the early voting procedures.

27 Ms Williams gave evidence as to the election results for the Legislative Assembly Ivanhoe district, the Legislative Council Eastern Metropolitan Region and the Northern Metropolitan Region. This evidence was not disputed. I accept this evidence and set out its substance.

Election results

To be elected within a District for the Legislative Assembly, a candidate must achieve an absolute majority of formal votes (more than 50%). If no candidate has an absolute majority of votes after first preferences have been counted, preferences are distributed, by excluding the candidate with the least number of first preference votes first and distributing their ballot papers according to the next preference on the ballot paper. The process of excluding candidates with the least number of votes continues until a candidate achieves an absolute majority. This is called the preferential counting system.

To be elected within a Region for the Legislative Council, a candidate must achieve a quota. A quota is a proportion of formal votes that is relative to the number of vacancies. In Victoria there are five positions within each Region to be filled. The quota is determined by calculating formal votes/(vacancies+1). Therefore the quota is 1/6th or 16.67% of the formal vote. Once a candidate is elected, any votes in excess of the quota (surplus) are distributed to continuing candidates. If there are remaining vacancies to be filled and all surpluses have been distributed, candidates with the fewest votes are progressively excluded and their ballot papers transferred to continuing candidates. This is a proportional representation counting system.

Ivanhoe District election results

Seven candidates contested the election in Ivanhoe district for the 2014 State election. This is the District in which the Petitioner is enrolled.

After the count of first preferences, no candidate had an absolute majority of votes. The first preference results by vote type are listed below. By way of interest the percentage of total first preference results by candidate is compared to the percentage of early votes received by each candidate. In general, the percentages are similar, with only the Liberal Party achieving a slightly better percentage of early votes compared to their percentage overall.

As no candidate received an absolute majority of first preference votes (19,652) a preference distribution was conducted to determine the result. The successful candidate was CARBINES and the final margin between candidate CARBINES and the second candidate ZIEBELL was 2,680.

...

Eastern Metropolitan Region election results

Forty candidates contested the election for the Eastern Metropolitan Region where 5 vacancies were to be filled. This is the region in which the Petitioner is enrolled. The forty candidates comprised 16 groups.

The total number of first preference votes was 423,463 giving a quota of 70,578.

...

Candidates WOOLDRIDGE (Liberal) and LEANE (Australian Labor Party) achieved a quota on first preferences and were elected. Candidate ATKINSON (Liberal) achieved a quota as a result of the surplus of candidate WOOLDRIDGE being distributed (at distribution 2).

The fourth elected candidate was DALLA-RIVA (Liberal) at distribution 164 as a result of the exclusion of candidate JANSON (Australian Christians). At the point where the decision to exclude candidate JANSON was made, the critical margin was 19,005.

The fifth elected candidate was candidate DUNN (Australian Greens) at distribution 168 as a result of the surplus distribution for candidate DALLA-RIVA. DUNN was elected below quota with a total of 70,294 in accordance with s.114A (18) of the Act which states 'In respect of the last vacancy for which 2 continuing candidates remain, the continuing candidate who has the larger number of votes is to be elected notwithstanding that that number is below the quota'. Candidate DUNN and candidate TEE (Australian Labor Party) were the only two continuing candidates at that point. Candidate TEE had 66,433 votes, 3,861 behind candidate Dunn.

...

Northern Metropolitan Region election results

Fifty two candidates contested the election for the Northern Metropolitan Region where 5 vacancies were to be filled. This is the region in which the Petitioner was a candidate. The fifty two candidates comprised 20 groups and 2 ungrouped candidates.

The total number of first preference votes was 411,998 giving a quota of 68,667.

...

Candidates MIKAKOS (Australian Labor Party), ONDARCHIE (Liberal) and BARBER (Australian Greens) achieved a quota on first preferences and were elected. Candidate ELASMAR (Australian Labor Party) achieved a quota as a result of the surplus for candidate MIKAKOS being distributed (at distribution 2).

The fifth elected candidate was candidate PATTEN (Sex Party) at distribution 263 as a result of the exclusion of candidate YIGIT (Australian Labor Party). At the point where the decision to exclude candidate YIGIT was made, the critical margin was 10,811 between candidates YIGIT and PATTEN.[4]

28 The entitlement of an elector to vote is described in s 87(4) of the Act:

(a) on election day at an election day voting centre; or

(b) in accordance with any other manner provided under this Part, if the elector is entitled to use that manner of voting.

29 The questions to be asked of a voter are listed in s 90(1):

... an election official must ask a person claiming to vote in an election at an election day voting centre before the person is given a ballot-paper -

30 Section 98 of the Act deals with early voting. The present form of s 98 was substituted in 2005.[5] The present s 98 is in a significantly different form from its predecessor. Instead of ten specific categories of electors who were entitled to vote early or by post, one general category now exists viz persons who 'will be unable to attend an election day voting centre during the hours of voting on election day'. The 2005 Act introduced for the first time the requirement for an elector to make a declaration. There is no prescribed form of declaration in the Act or regulations.

Electors who may apply to vote early or by post

For the purposes of this Division, a person may make an application under section 99 or 101 if the person -

(a) will be unable to attend an election day voting centre during the hours of voting on election day; and

(b) makes a declaration in the application that the person will be unable to attend an election day voting centre during the hours of voting on election day.

Electors who may apply to vote early or by post

For the purposes of this Division, a person may make an application under section 99 or 101 if the person is -

(a) an elector who will not be within Victoria during the hours of voting on election day; or

(b) an elector who will be travelling on election day under conditions which preclude the elector from voting at an election day voting centre;

(c) an elector who will not be within 8 kilometres, by the nearest practicable route, of an election day voting centre; or

(d) an elector who, by reason of being seriously ill or infirm or of approaching maternity, will be unable to travel to an election day voting centre; or

(e) an elector who, because he or she will be at a place (other than a hospital) caring for a person who is seriously ill or infirm or approaching maternity, will be unable to travel from that place to an election day voting centre; or

(f) an elector who will be a patient in a hospital during the hours of voting on election day; or

(i) an elector who because of his or her religious beliefs or membership of a religious order -

(i) will be precluded from attending an election day voting centre; or

(ii) for the greater part of the hours of voting on election day, will be precluded from attending an election day voting centre; or

(j) an elector who will be required by the elector's employer to remain at the elector's place of employment under conditions which prevent the elector from voting at an election day voting centre.

33 In the Second Reading Speech for the Electoral Legislation (Further Amendment) Act 2005 (Vic), the Attorney-General said:[6]

The bill will allow early and postal voting for electors who declare that they will be unable to attend an election-day voting centre during the hours of voting on election day. This initiative modernises voting procedures in Victoria and makes it easier for people to cast their vote.

Application to vote early

(1) An elector may apply to an election manager or an election official at an early voting centre during the operating times advertised under section 65 to vote within the period that -

(b) ends at 6 p.m. on the day immediately before election day.

(2) In relation to voting at an early voting centre, sections 90 to 96 apply, so far as relevant.

35 Part 8 of the Act establishes the Supreme Court of Victoria as the Court of Disputed Returns, and provides for its procedure. The Court has power to declare an election void.[7] The Court must act fairly and according to the substantial merits of the petition in the proceedings.[8] The Court is bound by the rules of natural justice. The Court must conduct each proceeding with as little formality and technicality as the requirements of the Act permit.[9] A decision of, or order made by, the Court of Disputed Returns is final and cannot be appealed against or otherwise called into question.[10] If the Court of Disputed Returns declares that an election is void, a re-election must be held.[11]

36 The validity of an election can only be disputed by means of a petition.[12] An election may be disputed by a candidate for the election in dispute; by a person who was entitled to vote at the election in dispute, or by the Commission.[13] A petition must set out the facts relied on to dispute the election, and the order sought from the Court of Disputed Returns.[14] The Court of Disputed Returns must not declare an election to be void on account of any act, matter or thing which in the opinion of the Court did not affect the result of the election.[15]

(1) the Court of Disputed Returns has power to declare a general election void;

(2) the petitioner has standing to dispute the result of a general election;

(3) the petition complies with the requirements of s 135(1)(a) of the Act;

(4) early voting was not conducted in accordance with ss 98(b) and 99(1) of the Act;

(5) the votes of the electors who had voted early are invalid and void;

(6) the invalidity of the early votes affected the result of the general election; and

(7) the State general election should be declared void.

38 In contrast, the main submissions of counsel for the Commission are:

(1) the Court of Disputed Returns does not have power to declare a general election void;

(2) the petitioner does not have standing to dispute the result of a general election;

(3) the petition does not comply with the requirements of s 135(1)(a) of the Act;

(4) early voting was conducted in accordance with ss 98(b) and 99(1) of the Act;

(5) any failure to comply with ss 98(b) or 99(1) of the Act does not invalidate the votes cast during the early voting period;

(6) the Court should be of the opinion under s 139 of the Act that any non-compliance with ss 98(b) and 99(1) of the Act did not affect the result of the election; and

(7) the petition should be dismissed.

Does the Court of Disputed Returns have power to declare a general election void?

40 The term 'election' is defined in s 3 of the Act so as to include 'a general election' as well as 'a by-election, or a supplementary election or a re-election'. In turn, 'general election' is defined to mean 'an election at which all the members of the Assembly and all the members of the Council have to be elected'.[16] The direct application of the definition of 'election', which includes 'general election', to s 125(g) of the Act would result in the conferral of power on the Court of Disputed Returns to declare a general election void. This, the petitioner contends, is the correct interpretation.

41 However, there is a strong and long-standing body of authority in the High Court of Australia that the jurisdiction of a Court of Disputed Returns does not extend to the making of a declaration that the entirety of a general election is void, at least on a petition under the Electoral Act 1918 (Cth).[17] In Muldowney v Australian Electoral Commission,[18] Brennan ACJ said:

The Act, like s 32 of the Constitution, makes particular provision for general elections of members of the House of Representatives ... But none of these provisions indicates a dichotomy between a general election and the several particular elections which are held pursuant to writs for a general election. The particular elections are held for the election of members of the House of Representatives in the several Divisions, albeit the poll for each Divisional election takes place on the same day. The term 'general election' is used in the Act as a collective term, descriptive of those particular elections which are held in each Division pursuant to writs for a general election. ... No elector is qualified to vote at a general election; each elector is admitted to vote only for the election of a member of the House of Representatives for the Division for which he or she is enrolled (s221(2)).

The framework of the Act as well as the language of s 355(c) indicates that the jurisdiction of the Court of Disputed Returns does not extend to the making of a declaration that the entirety of a general election is void. The jurisdiction to declare an election void on the petition of a person 'who was qualified to vote thereat' is limited to those elections in which the petitioner was an elector entitled to vote. If a challenge on justiciable grounds can be mounted to the validity of a general election - a question that I need not consider - such a challenge cannot be entertained by the Court of Disputed Returns. It may be that the High Court has such a jurisdiction but that has not been decided: see the dicta of Gibbs CJ. in McKenzie v The Commonwealth.[19]

42 Moreover, review of the Explanatory Memorandum[20] and Second Reading Speech[21] for the Constitution (Parliamentary Reform) Act 2003 (Vic) does not show any intention on the part of Parliament to achieve a landmark constitutional reform by empowering the Court of Disputed Returns to declare a general election void as opposed to the previously accepted position that a Court of Disputed Returns could only declare an election in a particular seat of the Legislative Assembly or Legislative Council to be void. It would be a surprising result that such a major expansion of the jurisdiction of the Court of Disputed Returns occurred as it were entirely by oversight.[22]

43 Although the definition of 'election' contained in s 3 of the Act is expressed as a 'means' definition, and although the words 'unless the contrary intention appears' are not to be found in s 3, nonetheless courts have held that these words are impliedly read into a definitions section of a statute.[23]

44 I agree with the submission by counsel for the Commission that there are clear indications that the contrary intention does appear in Part 8 of the Act. First, an election may be disputed under s 134(1), only by 'a candidate for the election in dispute' or by 'a person who was entitled to vote at the election in dispute'. These provisions are not meaningful if sought to be applied to a general election. Under the scheme of the Act, a person who is qualified to enrol as an elector for the Legislative Assembly and Legislative Council and has resided at a principal place of residence for at least one month is entitled to enrol on the register of electors.[24] An elector is entitled to vote in an election if the person is qualified to enrol as an elector under the Constitution Act 1975 (Vic) and has enrolled as an elector.[25] Candidates stand for election and electors vote to elect candidates for seats in the Legislative Assembly or Legislative Council.[26] Members of one House of Parliament are not entitled to sit or vote as a member of the other.[27] Candidates may not nominate as a candidate for more than one election to be held on the same day.[28] An elector must vote at every election for which the elector is entitled to vote.[29]

45 There are significant problems with some other sections of the Act if the term 'election' is taken as including 'general election'. For example, s 69 clearly relates to election to a seat in a House of Parliament and not to general elections. Section 72, relating to failed elections in the event of the death of a candidate, could not be taken to apply to general elections.

46 Further indications that the term 'election' as used in Part 8 of the Act was not intended to convey the meaning of 'general election' are found in s 139 of the Act. The Court of Disputed Returns must not declare an election to be void on account of any act, matter or thing which in the opinion of the Court 'did not affect the result of the election'. This provision could hardly apply to a general election, in which candidates from different parties or independents may be elected. Section 140 of the Act also refers to 'a person declared elected'. This necessarily refers to a seat in a House of Parliament. Neither of these provisions would have reasonable or harmonious application if the definition of 'election' as applied in Part 8 of the Act were to be taken as extending to a general election.

47 The problems that I have identified do not apply to a by-election, supplementary election or re-election. It is appropriate that the definition of 'election' contained in s 3 of the Act carries through to Part 8 in these circumstances - but not to a general election.

48 For these reasons, I conclude that the jurisdiction of the Court of Disputed Returns as found in s 125(g) of the Act does not extend to the power to declare a general election void.

Does the petitioner have standing to dispute the result of a general election?

49 Section 134 of the Act provides that, apart from the Commission, an election may be disputed by means of a petition to the Court of Disputed Returns by a candidate for the election in dispute, or by a person who was entitled to vote at the election in dispute.

50 The petitioner has shown that she is entitled to challenge the election for the Legislative Council Northern Metropolitan Region - being an election in which she stood as a candidate - and the election of members for the Legislative Assembly district of Ivanhoe and the Legislative Council Eastern Metropolitan Region - in which electorates she was enrolled to vote.

51 The petitioner is not entitled to dispute the election for any Legislative Assembly district other than Ivanhoe or any Legislative Council Regions other than the Northern Metropolitan Region and the Eastern Metropolitan Region.

Does the petition comply with the requirements of s 135 of the Act?

52 Section 135(1)(a) of the Act requires a petition to set out 'the facts relied on to dispute the election'. In Abbotto v Australian Electoral Commission,[30] Dawson J referred to the need for the petition to set out the facts relied on with sufficient particularity to identify the specific matter or matters on which the petitioner relies as justifying the grant of relief.[31] In Sykes v Australian Electoral Commission,[32] Dawson J referred to the requirement to set out the essential facts from which, if proved, it might be concluded that the election or return was invalid.

53 I have carefully reviewed the facts relied on by the petitioner to dispute the election to the Legislative Assembly district of Ivanhoe, the Legislative Council Eastern Metropolitan Region and the Legislative Council Northern Metropolitan Region of Victoria. I am satisfied that sufficient facts are alleged in the petition and with sufficient particularity to permit the petitioner to challenge the election in the Legislative Council Northern Metropolitan Region, but not in the Legislative Assembly district of Ivanhoe or the Legislative Council Eastern Metropolitan Region. There is only a brief mention of any fact specifically relating to the Legislative Council Eastern Metropolitan Region, and none at all of any fact specifically relating to the Legislative Assembly district of Ivanhoe.

Was early voting conducted in accordance with ss 98(b) and 99(1) of the Act?

54 Early voting is available in Victoria to persons who successfully apply to an election manager, or an election officer, at an early voting centre during advertised operating times within the period that starts at 4pm on the final nomination day and ends at 6pm on the day immediately before election day.[33]

55 Before an elector can vote at an early voting centre, the elector is required to make a declaration in the application. The declaration is that the person is unable to attend an election day voting centre during the hours of voting on election day. To comply with this requirement, it might be expected that an election officer would ask the intending early voter to make a declaration in the form required by s 98(b): 'Do you declare that you are unable to attend an election day voting centre between the hours of 8am and 6pm?' The intending early voter would then respond in the affirmative or negative. If the intending early voter responded that he or she was able to attend an election day voting centre during the hours of voting on election day, the application would be unsuccessful, and the voter advised by the election officer that the voter should vote on election day. If the voter declared that he or she was unable to attend during the hours of voting on election day, early voting would be permitted. Voting at early voting centres is then conducted in the same manner as at election day voting centres.[34] The election officer would then ask the three questions required by s 90(1) of the Act:

(1) What is your full name?

(2) Where do you live?

(3) Have you voted before in this election?

A ballot-paper would then be provided to the voter.

56 The requirement to make a declaration in an application was introduced in 2005. There was no requirement to make a declaration under the previous form of legislation. The changes were intended to modernise voting procedures and make it easier for people to cast their votes.[35]

57 Section 98(b) is a facilitative provision, intending to assist voters who are unable to attend an election day voting centre during the hours of voting on election day. It does not require that an elector have a particular reason for being unable to vote on election day. An elector may be unable to vote on election day for a wide range of possible reasons. There is no requirement or policy in the Act for 'adequate cause' to be demonstrated. The election officer is entitled to act on the basis of the declaration of the elector. There is no written or statutory form of declaration required. An oral declaration is sufficient. However, there must be a declaration by the intending early voter on which the election officer can act.

58 Section 98(b) requires a declaration in the application that the intending early voter is unable to attend an election day voting centre during the hours of voting on election day. The word 'unable' is a word of flexible meaning, dependent on context. There is no definition of the word 'unable' contained in the Act. An elector asked to make a declaration is entitled to - and will inevitably - give the word 'unable' the meaning that the elector considers appropriate. The Act does not provide for, or require, an election officer to interrogate or quiz a voter about the declaration that the voter is about to give, or has given.

59 In Leeder v Mayor, etc., of the Town of Ballarat East, Cussen J analysed the flexible meaning of the word 'unable' and said:[36]

By these words the Legislature seems to assume 'inability' in a case where a notice has not been given, and to impose on the plaintiff the obligation of showing why there was inability. The great difficulty is caused by the word 'unable'. It is a word not of definite but of flexible meaning. Sometimes, where it is used with reference to a person, it connotes an act or series of acts which no human being could do; sometimes an act or series of acts which the particular person referred to could not in any circumstances do; sometimes an act or series of acts which this person could not in existing circumstances do; and sometimes an act or series of acts which in existing circumstances this person could do if he directed his mind to nothing else, but which, having regard to other circumstances, he could not reasonably be expected to do. It therefore sometimes involves a comparison of the various circumstances influencing action or inaction. If the contemplated action and its consequences are of trifling importance, very little may be sufficient to induce a person to say that he is unable to do it. The examples of an invitation to dinner or to join in a walk will illustrate this class of cases. On the other hand, there are cases of which those involving the giving of notice under this Statute may be examples, where much graver reasons would be required before a person should be able to say that he was 'unable.'

60 In Cullinane v Mercer Benefit Nominees Limited,[37] the Court said in the context of a disablement clause in a trust deed:

When one turns to the word 'unable', the various Oxford English Dictionary definitions include:

Not able, not having ability or power, to do or perform (undergo or experience) something specified

...

Lacking ability in some implied respect; incompetent, inefficient.

...

Characterized by want of ability; inefficient, ineffectual

...

Of persons: Incapable of, not qualified for, some position

...

Not able to be (done); impossible.

The primary judge observed, correctly, that the meaning of the word 'unable' depends upon context. There is nothing inherently 'permanent' about the status of 'incapacity' leading to 'inability'. A person may be unable to do something today that the person will, in all likelihood, be able to do at some stage in the future. For example, someone may have no grasp of mathematics at one point, but become an accomplished exponent at a later time. Indeed, there is authority for the proposition that the word 'unable' should not be read, in ordinary parlance, as equivalent to 'impossible': Leeder v The Mayor of Ballarat East ...[38]

61 During submissions, there was some discussion as to whether the Court should give a preferred interpretation to the word 'unable' as it appears in s 98. Given the flexible meaning of the word 'unable', and the fact that intending early voters are required to make a declaration that they are unable to attend an election day voting centre during the hours of voting on election day, it would be inappropriate for the Court to ascribe any particular meaning to the word 'unable'. Rather it is apparent that the Parliament left the meaning of the term to the elector to address as he or she saw fit when making the declaration.[39]

62 Evidence in this proceeding has been given by affidavit, and in the absence of any cross-examination by either party I accept the affidavit evidence relied on by both parties. Mr Menadue, Ms Kariofyllidis, Mr Dance, Ms Bozin and Mr King have all given evidence that the declaration was simply not sought or given when they attended and voted at early voting centres during the early voting period. In some instances, they and Ms Rigoni also gave evidence that other electors informed them that the declaration was not administered when those other electors attended at early voting centres to vote. Ms Bozin's evidence might suggest that the staff of the mobile early voting centre that she attended were more concerned to ensure that as many electors voted as possible, rather than to see the requirements of the Act observed if early voting was to be permitted.

63 By contrast, the evidence of the Commission's witnesses, Ms Williams, Mr Guest, Mr Marks and Ms Browne is to the effect that training was conducted and instructions were given to ensure that the requirements of the Act as to early voting were met. To the extent that any issue of non-compliance arose, action was taken by election staff to ensure that early voting was properly conducted.

64 Review of the evidence relied on by the Commission and the manuals produced on its behalf shows some variation as to the practices adopted in early voting centres. It does not appear that each intending early voter was asked to make a declaration, even an oral declaration, that the person was unable to attend an election day voting centre during the hours of voting on election day. Rather, the question to be asked according to some manuals was 'You are unable to vote on election day?'. According to Ms Browne, the question in the manual was modified by election staff to read 'You are here to vote early, you're not able to vote on election day?', which is another paraphrase again of the requirements of s 98(b) of the Act.

65 I conclude on the basis of the evidence of the witnesses for the petitioner that there were instances of non-compliance with s 98(b), where electors were not asked whether they were unable to attend an election day voting centre during the hours of voting on election day. I also conclude on the basis of the Commission's evidence as well as that of the petitioner that intending early voters were not advised that they had to make an oral declaration to an election officer that they were unable to attend an election day voting centre during the hours of voting on election day.

Were the votes of electors who voted early invalid and void?

66 It is of paramount importance that the Commission conduct elections in accordance with law. But it is a different question as to whether a vote is invalidated in the event of non-compliance by the Commission with a process that it is required to undertake.

67 Counsel for the petitioner contended that any early vote cast by a voter without compliance with s 98(b) was invalid and void. Counsel for the Commission contended that a failure on the part of the Commission to administer or properly administer a declaration in accordance with s 98(b) did not invalidate the vote cast by the elector.

68 It is not disputed that each early voter was identified by name and address, as an elector recorded on the electoral roll. Nor is it in dispute that each early voter stated that he or she had not voted before in the election. If an application for early voting had been rejected by an election officer the effect would have been that the elector would have had to have voted on election day less than two weeks later. The petitioner urges invalidity of any early vote if the declaration was not given. In my view, it would be a significant decision to effectively disenfranchise a voter who was otherwise entitled to vote due to a misunderstanding or oversight of an election officer concerning the early voting process - particularly given that the voter was entitled to vote and had properly voted apart from the early voting declaration.

69 In Project Blue Sky Inc v Australian Broadcasting Authority,[40] four members of the High Court observed:

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.[41]

70 To similar effect is the decision of the High Court of Australia in Clayton v Heffron:[42]

... the performance of a public duty or the fulfilment of a public function by a body of persons to whom the task is confided is regarded as something to be contrasted with the acquisition or exercise of private rights or privileges and the fact that to treat a deviation in the former case from the conditions or directions laid down as meaning complete invalidity would work inconvenience or worse on a section of the public is treated as a powerful consideration against doing so.[43]

71 Counsel for the Commission relied on the well-known passage in Montreal Street Railway Co v Normandin:[44]

When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provision to be directory only.[45]

72 In my opinion, there is no legislative purpose to be discerned in s 98(b) that would require a ballot-paper properly completed within two weeks of election day by a duly enrolled elector who had not previously voted to be declared null and void, because an election officer failed to require the elector to make an application under s 98(b) of the Act, or failed to administer or receive the necessary declaration.

73 To the contrary, there is good reason to adopt the view that Parliament did not intend that non-compliance with s 98(b) because of an omission by an election officer should render an otherwise properly cast vote by an enrolled elector informal and invalid. Most likely, had the officer requested a declaration, it would have been given. If no declaration was forthcoming, the elector would have been deferred to vote on election day.

74 There is no prejudice to any candidate for election that has been demonstrated. As counsel for the petitioner conceded, there was no significant event that took place between the commencement of the early voting period and election day that was likely to affect the way that votes were cast by electors. Certainly, there is none shown in the evidence before the court. There is no evidence to show that it made any material difference to the way a vote was cast whether it was cast by the voter during the early voting period or whether it was cast by the same voter on election day.

75 The view that I have come to as to the effect of non-compliance with ss 98(b) and 99(1) is confirmed by s 112, which provides:

(1) A ballot-paper must be rejected as informal -

(a) if it has not been initialled by an election official; or

(b) if it is not so initialled, does not bear the prescribed official mark; or

(c) if it is not marked in accordance with section 93, in the case of an Assembly election; or

(d) if it is nor marked in accordance with section 93A, in the case of a Council election.

(2) Except as otherwise expressly provided, a ballot paper must not be rejected for any reason other than the reasons specified in this section.

(3) Subject to this section, a ballot-paper must be given effect to according to the elector's intention so far as the elector's intention is clear.

76 Section 112(1) sets out various deficiencies that lead to the informality and invalidity of a ballot-paper. The failure by an elector to give a declaration under s 98(b) is not listed amongst them. To the contrary, s 112(2) requires a ballot-paper that complies with s 112(1) to not be rejected as informal. It is not suggested that any of the early votes in dispute in this case were given in circumstances where any of the deficiencies listed in s 112(1) applied.

77 For these reasons, I hold that the failures and omissions of election officers to properly receive declarations under ss 98(b) and 99(1) of the Act shown in the evidence do not have the effect of invalidating the votes cast by electors otherwise enrolled and eligible to vote, and who received and properly completed ballot papers as provided by election officers at early voting centres. Votes cast in these circumstances are not informal or invalid.

Did the procedure adopted at early voting centres concerning early votes affect the result of the general election?

78 There is no evidence before the Court suggesting that the procedure adopted at early voting centres concerning early votes in any way affected the result of the general election or the election in the Northern Metropolitan Region or any other electorate. There is no evidence that any voter who voted during the early voting period would have voted in any different way on election day, bearing in mind that election day was less than two weeks away. I am of the opinion under s 139 of the Act that any failures of the Commission to comply with ss 98(b) or 99(1) of the Act did not affect the result of any election. As a result, s 139 prohibits any declaration that any election is void.

79 The main submissions made by the parties are determined in the following manner:

(1) the Court of Disputed Returns does not have power to declare a general election void;

(2) the petitioner does not have standing to dispute the result of a general election;

(3) the petition complies with s 135(1)(a) of the Act only insofar as it purports to challenge the election in the Legislative Council Northern Metropolitan Region;

(4) in some instances, early voting was not conducted in accordance with ss 98(b) and 99(1) of the Act;

(5) in these instances, the votes of the electors who voted early are valid; and

(6) any failure to comply with ss 98(b) and 99(1) of the Act did not affect the result of any election.

80 For these reasons, the petition will be dismissed.

[2] Electoral Act 2002 (Vic) s 127(1)(b).

[5] Electoral Legislation (Further Amendment) Act 2005 (Vic) s 9 ('the 2005 Act').

[6] Victoria, Parliamentary Debates, Legislative Assembly, 21 April 2005, 651-2 (Rob Hulls, Attorney-General).

[16] The Act was amended by s 23(b) and (e) of the Constitution (Parliamentary Reform) Act 2003 (Vic).

[17] See also Pavlekovich-Smith v Australian Electoral Commission [1993] HCA 37; (1993) 67 ALJR 711, 712; Sykes v Australian Electoral Commission [1993] HCA 36; (1993) 67 ALJR 714, 715; Abbotto v Australian Electoral Commission (1997) 71 ALJR 675, 676-7 (Dawson J) and Robertson v Australian Electoral Commission [1993] HCA 50; (1993) 67 ALJR 818, 818 (Toohey J). See also Re Surfers Paradise Election Petition; Soegemeier v Small [1975] Qd R 114, 117 (Dunn J).

[18] [1993] HCA 32; (1993) 178 CLR 34.

[20] Explanatory Memorandum, Constitution (Parliamentary Reform) Bill 2003 (Vic).

[21] Victoria, Parliamentary Debates, Legislative Assembly, 27 February 2003, 160-3 (Steve Bracks, Premier).

[22] The Explanatory Memorandum for the Constitution (Parliamentary Reform) Act 2003 (Vic) referred to clause 23 in these terms:

Clause 23 makes amendments to section 3 of the Electoral Act 2002 by making consequential definitional amendments which arise as a result of the new procedure for appointing members of the Council to fill a casual vacancy, the new division of the State into regions and the new definitions of Council election and general election (rather than simultaneous election).

The Second Reading Speech for the Constitution (Parliamentary Reform) Act 2003 (Vic) and the debates in the Houses of Parliament do not mention that the definitional changes might affect the jurisdiction of the Court of Disputed Returns. See Victoria, Parliamentary Debates, Legislative Assembly, 9 October 2002, 392-446.

[23] See Dennis C Pearce and Robert S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, 2014) [6.67] and the cases cited therein.

[26] Constitution Act 1975 (Vic) ss 25 and 33.

[27] Constitution Act 1975 (Vic) ss 29 and 36.

[30] (1997) 71 ALJR 675, 677.

[31] Referring to Muldowney v Australian Electoral Commission [1993] HCA 32; (1993) 178 CLR 34; Pavlekovich-Smith v Australian Electoral Commission [1993] HCA 37; (1993) 67 ALJR 711; Sykes v Australian Electoral Commission [1993] HCA 36; (1993) 67 ALJR 714; Webster v Deahm [1993] HCA 38; (1993) 67 ALJR 781; Robertson v Australian Electoral Commission [1993] HCA 50; (1993) 67 ALJR 818.

[32] [1993] HCA 36; (1993) 67 ALJR 714, 717.

[36] [1908] VicLawRp 33; [1908] VLR 214, 223 (emphasis added).

[37] [2006] FCAFC 82; (2006) 152 FCR 1.

[38] Ibid 14 [71]-[72] (Tamberlin, Weinberg and Allsop JJ) (emphasis in original) (citations omitted).

[39] As to the variable meaning of the word 'unable' see also Leeder v Mayor, etc., of the Town of Ballarat East [1908] VicLawRp 33; [1908] VLR 214, 218 (A'Beckett J). See also Lui v Federal Commission of Taxation [2009] FCAFC 115; (2009) 178 FCR 289, 295 [22], 296 [27] (Stone, Edmonds and Jagot JJ); Re A Former Student and Secretary, Department of Employment, Education, Training and Youth Affairs (1997) 49 ALD 692, 696-297 [18]-[21] (DP Blow) (as the Chief Justice of Tasmania then was) where the Administrative Appeals Tribunal gave the word 'unable' the meaning of 'not reasonably able'; Films and Castign Temple v Malla [2013] NSWCA 377 [88]-[95]; Comcare v Lilley [2013] FCAFC 121 [75]-[78].

[40] [1998] HCA 28; (1998) 194 CLR 355.

[42] [1960] HCA 92; (1960) 105 CLR 214.

[43] Ibid 247 (Dixon CJ, McTiernan, Taylor and Windeyer JJ).

[44] [1917] UKPC 2; [1917] AC 170.