Re Lack; Ex parte McManus [1965] HCA 7

It is convenient to deal at once with the first ground taken by the applicant. Section 137 (1) provides that at any time before the declaration of the result of a Senate election the Commonwealth Electoral Officer for the State may, if he thinks fit, on the written request of any candidate setting forth the reasons for the request, or of his own motion, direct a recount of the ballot-papers from any Division or portion of a Division or of the ballot-papers contained in any parcel, whilst s. 139 provides that the officer conducting a recount shall have the same powers as if the recount were the scrutiny, and may reverse any decision in relation to the scrutiny as to the allowance and admission or disallowance and rejection of any ballot-paper.

The point which was made by the applicant is that there can never be a "recount" of ballot-papers until the first count has been completed. As a literal proposition so much may be conceded, and it is clear enough that s. 137 is a provision intended to enable that to be done which, in its absence could not be done, that is to say, to enable a recount to be ordered after completion of a first count disclosing the result of the poll. But this is not to say that if in the course of counting, and before the count has been completed, it is found that a mistake has occurred it cannot be corrected at that stage and independently of s. 137. It would be corrected as part of the process of the first count. However, a number of counts is involved in the scrutiny of the ballot-papers in an election of several candidates for the Senate. First of all there is a count of first preference votes. After that has been completed and one or more candidates has or have achieved a quota on that count successive counts are necessary to determine which of the continuing candidates have been elected upon successive distributions of the surplus votes of the candidates already elected. There is therefore involved in the scrutiny a number of successive counts and we have no doubt that it is competent to a Commonwealth Electoral Officer, pursuant to s. 137, to direct a recount at any time after any such count has been completed. Accordingly the submission involved in the applicant's first ground should be rejected.

The alternative submission of the applicant should we think also be rejected. It recognizes that probably, and almost certainly, a recount of first preference votes will result in some variation in the quota ascertained originally in accordance with s. 135 (5) (b) and also in the number of surplus votes of candidates elected on the first count or in the transfer value of such candidates' surplus votes as originally ascertained or that votes previously rejected as informal may be admitted or votes previously admitted may be rejected. Nevertheless it is asserted that the procedure prescribed by sub-par. (v) of s. 135 (5) (e) can take place only once and, having been observed following the original count, it cannot be pursued again. In other words it is contended that there cannot be a further random taking by each Divisional Returning Officer from the parcels of ballot-papers of a candidate elected on the recount of first preference votes arranged according to the second preference vote recorded on each. The original random taking, it is said, is final, though some "adjustment" may be necessary in the almost certain event of the recount of first preference votes resulting in some alteration of the quota or in the number of an elected candidate's surplus votes. The proposition assumes, of course, that on the recount the same two candidates will be elected on the count of first preference votes and the "adjustment" presumably would be made by a further subsidiary random taking from or addition to the ballot-papers originally transferred. There is, of course, no reason to doubt the validity of the assumption that, in the present instance, the same two candidates will be elected on the recount of first preference votes; but this may not always be so, and for that reason it may not always be possible to follow the suggested method of procedure. But the substantial answer to the proposition is that there is no warrant for the suggested course of procedure in the Act and, indeed, to follow it would be contrary to the provisions of the Act.

What s. 135 (5) requires is, first of all, the ascertainment of a quota by reference to the total number of first preference votes and then a calculation is necessary to determine the transfer value of an elected candidate's surplus votes. The number of second preference votes to be transferred to each continuing candidate is then to be ascertained in accordance with sub-par. (iii) of s. 135 (5) (e) and thereafter there is to be a "random" taking in each Division in accordance with the directions of the Commonwealth Electoral Officer given pursuant to sub-par. (iv). But the random taking is to be from the parcels, arranged according to the second preference vote recorded thereon, of the elected candidate and it is about as clear as it can be that once a recount is directed there is no elected candidate. The whole notion of a recount is that the first count is to be disregarded and that the election of candidates is to depend upon the result of the recount. In our view, therefore, the processes specified in the various paragraphs of s. 135 (5) must be observed on the recount and, in particular, it will be the result of the recount of first preference votes that will determine the necessary quota, whether any candidate or candidates has or have been elected on the first count, the transfer value of a thus elected candidate's surplus votes and the provisions of sub-pars. (iii), (iv) and (v) must be observed in the transfer to each of the continuing candidates of the surplus votes of any candidate so elected. The random taking is to be done as one of a series of steps in a fixed temporal sequence. It is to be done by the abstraction of the requisite number of ballot-papers from certain parcels of ballot-papers which have been made up after the count of the first preference votes, and after the transfer value of the elected candidate's surplus votes has been determined from data which that count has enabled the Commonwealth Electoral Officer to ascertain. It is to be done, moreover, after the number of votes to be transferred to each continuing candidate has been ascertained by applying the transfer value to the total number of ballot-papers of the elected candidate which bear the next available preference for that continuing candidate, and after the number of ballot-papers to be transferred from the elected candidate to each continuing candidate in each Division has been worked out. It is "then" that sub-par. (v) requires that the random taking be done. Where, as in the present instance, a recount of ballot-papers is ordered after the parcels have been made up, compliance with the order necessarily involves a dismembering of the parcels and the commencement of the whole process de novo. The former random taking cannot be intended by s. 137 to stand, even subject to adjustment; for when the recount has led to the reconstitution of the parcels the command of sub-par. (v) takes effect. It is a command to take the proper number of ballot-papers, "then", from the parcel of each elected candidate. Even if by some miracle the new parcels happened to be identical in all respects with the old, it is when the parcels have been newly made up and the number of papers to be taken from each has been newly worked out, that sub-par. (v) takes effect. It must be obeyed in respect of the newly constituted parcels. The former compliance with it has become irrelevant.

It is for these reasons that we decided, as was announced at the conclusion of the hearing, that "the Commonwealth Electoral Officer having on 24th December 1964 directed a recount of the ballot papers in the Senate Election from all Divisions in the State of Victoria, that recount may proceed forthwith without the scrutiny already begun being first completed, and that all the steps prescribed by s. 135 (5) must be included in the course taken upon such recount".