Hansen v Electoral Commissioner for New South Wales [2004] NSWSC 348

Reported Decision : 132 LGERA 296

New South Wales Supreme Court

CITATION : Hansen v Electoral Commissioner for New South Wales [2004] NSWSC 348 HEARING DATE(S) : 13 April 2004 JUDGMENT DATE : 30 April 2004

JUDGMENT OF : Simpson J DECISION : Election void; new poll to be conducted

CATCHWORDS : declaration of poll - election of councillors to the Snowy River Shire Council - extent of non-compliance with the Regulation - consequences of acknowledged irregularities - pre-poll voting procedures - exclusion of votes from poll - precedent LEGISLATION CITED : Local Goverment Act 1993 s.296, s.312, s.313, s.317 Local Government (Elections) Regulation 1998 cl.43, cll.51-53, cl.70, cl.78, cl.81 Bowen v Hinchcliffe (1924) 24 SR (NSW) 262 Bridge v Bowen (1916) 21 CLR 582 Ex-parte Hinds; re Penboss [1972] 2 NSWLR 542 CASES CITED : Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 Raggatt v Fletcher and Willunga District Council (1990) 69 LGRA 367 Re O'Hanlon: ex-parte Collins (1919) VLR 79 Scarcella v Morgan [1962] VR 201 Woodward v Sarsons (1875) L.R. 10 C.P. 733 PARTIES : Peter Hansen - Plaintiff Electoral Commissioner for New South Wales - Defendant FILE NUMBER(S) : SC 30023/04 COUNSEL : LT Grey - Plaintiff N Perram - Defendant SOLICITORS : Nyman Gibson Stewart - Plaintiff I V Knight - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

SIMPSON J

Friday 30 April 2004

30023/04 Peter Hansen v Electoral Commissioner for NSW

JUDGMENT 1 HER HONOUR: By summons filed in this Court on 5 April 2004 the plaintiff, Mr Peter Hansen, seeks orders concerning the declaration of a poll held in elections conducted by the defendant, the Electoral Commissioner for NSW, pursuant to the Local Government Act 1993 in the local government area of the Snowy Rivers Shire on 27 March 2004. I will in due course refer to the nature of the orders the plaintiff seeks. 2 Having heard a brief factual outline of the circumstances which gave rise to the application, and brief argument from counsel for both parties, I abridged the time for service of the summons (the defendant having, in any event, been notified and being, through his counsel, present) and made an order restraining the defendant, until further order, from declaring the election of councillors to the Snowy River Shire Council. I gave directions about the filing and service of affidavits. 3 Even from this short outline, it can be seen that a degree of urgency attended the plaintiff's claims, and an urgent hearing, for 13 April, was fixed. It was, however, also apparent that the issues raised, and the various potential outcomes of the claims, would have implications affecting a number of other individuals (most notably other candidates in the election) and arrangements were made to ensure that those individuals had notice of the proceedings. I am satisfied that all reasonable steps have been taken to ensure that persons potentially affected have received notice of the proceedings, and have had the opportunity to seek to participate, if they wished to do so. None has made any such application. I did, however, receive by facsimile transmission, two communications signed by a Mr Patrick Dodd, who expressed himself to be speaking on behalf of five other candidates, identified by Mr Dodd as "the Group 'A' team". These were dated 6 April and 13 April. I disclosed these communications to counsel for the parties and they will remain in the Court file. I subsequently received a further communication, dated 15 April, apparently from the same source. On 20 April, while judgment was reserved, the defendant applied in chambers for directions concerning further notification to another candidate, Mr Kevin Burke, whose interests are most directly potentially affected by the outcome of the proceedings. I made such directions. These included a direction that the solicitor for the plaintiff provide further notification to Mr Burke of the proceedings; and that Mr Burke be entitled to make any submissions he wished to make by 4.00 pm on Friday 23 April 2004. I expressly added that any such submission may include a submission seeking an extension of the deadline, and an application that Mr Burke be joined as a party. As a result, I received in chambers an affidavit sworn by Mr Burke on 22 April 2004. I made arrangements to have that affidavit copied to the parties. In the affidavit Mr Burke made certain submissions as to the declaration of election of one (identified) candidate and that otherwise that all positions on the Council should be declared vacant and a by-election held. He set out a number of factual matters which it is not necessary here to recount. In the last paragraph of the affidavit, Mr Burke deposed that he had received notice of the direction on Wednesday 21 April 2004 but said that he had not had sufficient time to decide whether he should be joined in the proceedings. He purported to "reserve any entitlement which I may have to seek leave of the Court to be joined in these proceedings". He deposed that he had had insufficient time to speak with the defendant to ascertain its position and attitude to the plaintiff's application. 4 I have earlier noted that a degree of urgency is involved in the proceedings. In my opinion, ample steps have been taken to ensure that Mr Burke and others are aware of the proceedings, of the plaintiff's claim, and they have had ample opportunity to decide whether or not to seek to become involved in the proceedings. I do not propose to delay any further the resolution of the summons. 5 Unsatisfactory as it may seem to Mr Dodd and any individuals on whose behalf he writes, it is not possible to attach any weight to the views they have expressed in their communications. The issues must be decided according to legal principles. 6 The plaintiff's claims arise from the manner in which the defendant, by his officers, treated 377 pre-poll votes irregularly (it was conceded) cast for the election in two polling places. As a result of his own discovery of the irregularities (which I shall detail below) the defendant decided that the votes were invalid, and excluded them from the count. 2,308 formal votes were cast in the election. The 377 votes in question amount to a little over 16% of the total vote. That is a significant proportion. Further, the excluded votes have since been counted (although not included in the official tally) and would, if included, alter the result. If the votes had been, or were to be, included, the plaintiff would be declared elected; if not, another candidate, Kevin Burke, would be elected. 7 It being conceded that there was an irregularity in the poll, the questions which arise for determination are:

(i) what is the consequence, or are the consequences, of the acknowledged irregularities?;

(ii) was the defendant correct in excluding the votes from the poll?;

(iii) if the votes were properly excluded, should the election be declared void and a fresh election ordered?

the relevant legislation 8 Elections for local government are governed by the Local Government Act 1993 ("the Act") and a Regulation made thereunder (the Local Government (Elections) Regulation 1998, to which I shall refer as "the Regulation"). Chapter 10 of the Act bears the heading "How are people elected to civic office?" and contains provisions setting out the entitlement to be enrolled as an elector and to vote; entitlement to be elected to "civic office" (defined in the Dictionary to the Act as, relevantly, the office of councillor or mayor); the system of election; the timing of election; the filling of casual vacancies; the conduct of elections (Part 6); political parties; disclosure of election funding; and dismissal from civic office. 9 By s. 296(1) conduct of elections is committed to the defendant. By s. 296(2) the defendant is required to appoint a returning officer and a substitute returning officer for each area. The returning officer, or in his/her absence, the substitute returning officer, is to conduct elections on behalf of and under the direction of the defendant. 10 By s. 312 voting (by enrolled residents) is compulsory. By s. 313 penalties are provided for enrolled residents who fail, without sufficient reason, to vote. 11 S. 317 provides: 317 Validity of elections (1) An election is not invalid just because: (a) there was a formal defect or error in or relating to the election, if the election was held substantially in accordance with this Act, or (b) there was a defect in the appointment of the returning officer, or (c) the time for closing the poll for postal voting was extended with the approval of the Electoral Commissioner or returning officer conducting the election, or (d) on polling day the name of a political party, or the abbreviation of that name, as registered in the Local Government Register of Political Parties appears printed adjacent to the name of a candidate on the ballot-papers for the election, but between the time the candidate was endorsed by the party and the polling day the candidate has ceased to be so endorsed. (2) A proclamation of the Governor to the effect that a specified irregularity does not invalidate an election is conclusive as to the matter stated in the proclamation. 12 Much more detailed provision concerning the conduct of elections is to be found in the Regulation. Part 7 of the Regulation is entitled "Postal and other special types of voting". Division 1 of Part 7 is concerned with postal voting; Division 2 with pre-poll voting; Division 3 with "declared institution voting"; Division 4 with mobile booths. Part 8 regulates voting on election day. 13 Clause 51 of the Regulation (in Division 2) sets outs the circumstances which would qualify a person to cast a vote at a polling place in advance of the day fixed for the election (a "pre-poll vote"). The specified qualifications are limited; they may be summarised as: · anticipated absence during polling hours on election day from the ward or area for which the election is being held, or an anticipated distance, during those hours, of more than eight kilometres by the nearest practicable route from any relevant polling place (cll. 51(a) and (b)); · anticipated travelling on election day preventing attendance at a polling place (cl. 51(c)); · religious beliefs preventing attendance at a polling place (cl. 51(d)); · the need to provide medical care for another person, preventing attendance at a polling place (cl. 51(e)); · work commitments preventing attendance at a polling place during the hours of the election (cl. 51(f)). 14 Postal voting is, by cl. 43, subject to similar limitations; added to the list of qualifications permitting postal voting are: · serious illness or disability preventing attendance at a polling place (cl. 43(d)); · approaching maternity, with the same consequence (cl. 43(e)); · imprisonment (cl. 43(g)). 15 By cl. 52, a person qualified under cl. 51 may apply for a pre-poll voting paper. Sub-cl. (2) requires that the application be in the prescribed form (Form 10); be printed or written on a ballot paper envelope; be obtained by the applicant from an officer, who, before handing the envelope to the applicant, must insert on the application the name of the area and ward (if any) and the name, roll number, and address of the applicant; be completed and signed by the applicant in the presence of the officer; be returned to the officer; and be witnessed by the officer. Form 10 requires the applicant to declare that he/she is the person enrolled under a stated name and address on the electoral roll (or that, although not on the appropriate roll, is nevertheless entitled to vote, and to give a name and the address that provides an entitlement to vote: see s. 305 of the Act); that he/she has not already voted in the election and will not subsequently vote elsewhere in the election; and the circumstance, drawn from cl. 51, which qualifies him/her for a pre-poll vote. 16 Sub-cl. (3) entitles, and on request by any scrutineer, obliges the officer receiving an application, to put to the applicant certain questions drawn from cl. 70; where the questions are not required or are answered satisfactorily, the sub-clause obliges the officer to hand to the elector a ballot paper initialled on the back by the officer. The questions in cl. 70 referred to are questions required to be put to an elector voting at a polling place in person on election day. They include ascertaining the identity, age and citizenship of the person; and that the person is not disqualified from voting and has not already voted in the election. It is unnecessary further to detail cl. 70 questions. To some extent they are duplicated in the Form 10. 17 Cl. 53 sets out pre-poll voting procedures. That procedure requires certain steps to be taken by the elector and others by the officer. The elector is: · to mark his/her vote on the ballot paper provided in view of the officer but in such a way as to conceal the vote from the officer (cl. (1)(a)); · to fold the ballot paper once to obscure the vote (cl. 53(1)(b)); and · to return the folded ballot paper to the officer (cl. 53(1)(c)). 18 The officer is: · in the presence of the elector, to enclose the vote in the envelope bearing the elector's application, and seal the envelope (cl. 53(2)(a)); · if the elector's name is on the electoral roll, to place the envelope in a pre-poll ballot box (cl. 53 (2)(b)); and · to record the name of each elector who makes a pre-poll vote, and to keep the record at the pre-poll voting office where the application is made (cl. 53(3)). 19 Cll. 78 and 81, which appear in Part 9 of the Regulation, entitled "Scrutiny and counting" deal with the counting of, inter alia, pre-poll votes. By cl. 78 the returning officer may, at any time after 8.00 am on the day of the poll, and in the presence of any scrutineers lawfully present, open the ballot boxes containing pre-poll votes, take out and count the sealed envelopes unopened and record the count, check the names on the envelopes against the electoral roll, and mark off each elector's name on a copy of the electoral roll. (Although there is no express provision to this effect it may, having regard to cl. 81(3), be intended that after counting, checking and marking, the unopened enveloped be returned to the ballot boxes.) 20 By cl. 81(3) the returning officer is obliged, on the close of the poll, to open the ballot boxes containing the pre-poll votes, remove the envelopes from them (presumably this is to happen if it has not already been done pursuant to cl. 78 or if the envelopes have been returned to the ballot boxes) and do or cause to be done the following: · count the sealed ballot papers unopened and record the count (cl. 81(3)(a)); · check the names of the envelopes against the electoral roll and, if an elector's name is on the roll, mark the roll (cl. 81(3)(b)); · turn each sealed envelope face down, open the envelope, remove the ballot paper and, without inspecting or unfolding it, or allowing any other person to do so, place it in a securely fastened ballot box for further scrutiny (cl. 81(3)(c )); · open the ballot box, remove the ballot papers, unfold and scrutinise them and reject any that are informal (cl. 81(3)(d)).

the facts 21 An election for the Shire of Snowy River was scheduled to take place on 27 March 2004. The plaintiff was a candidate. Pre-poll voting was arranged, from 15 March 2004, at four locations, two of which were Dalgety and Jindabyne. By an oversight, envelopes bearing pre-poll application forms (Form 10) were not supplied, as required for the implementation of cll. 52 and 53, to either centre. The officers staffing the centres apparently were unaware of the provisions of the Regulation concerning pre-polling. Pre-polling took place at Jindabyne on six days, between 17 and 26 March, and at Dalgety on three days, between 24 and 26 March. 377 votes were cast. On each occasion the procedure adopted departed significantly from the requirements of the Regulation. The officer to whom the applications were made identified each elector seeking a pre-poll vote by reference to an electoral roll, and confirmed the elector's name and address. Each elector was asked if he/she had already voted in the election. No application form was supplied and no elector was asked to identify the circumstance by reason of which he/she claimed to be qualified for a pre-poll vote. Some electors in fact volunteered reasons, but no record of these reasons was maintained. Once the identity of the elector was established, electoral office staff handed to him/her a ballot paper. When the elector completed the ballot paper, it was folded and placed, without envelope, directly into a sealed ballot box. 22 At each location a record was maintained of the identity of those individuals who had used the pre-poll voting procedure. A distinction was drawn, in the evidence, between a "certified" list of electors, and a "reference copy" of the list of electors, but what the distinction is did not become apparent. Since it was not explained or explored, I take it to be immaterial to the issues I have to decide. However, on the completion of all pre-poll voting, a certified copy of the electoral roll was dedicated to recording electors who had cast pre-poll votes for the whole of the Shire (that is, not only those who cast pre-poll votes in Jindabyne and Dalgety).

the extent of non-compliance with the Regulation 23 The evidence discloses non-compliance, to a greater or lesser degree, with cll. 52, 53 and 78.

cl. 52(2) 24 There was non-compliance with cl. 52(2) in the following respects:

(i) the applications for a pre-poll vote were not made on a Form 1. This entailed non-compliance with a number of requirements: (a) the elector was not identified in writing either as a person whose name was on the electoral roll, or as a person whose name was not on the electoral roll, but who claimed, pursuant to s. 305 of the Act, to be entitled to vote in the election; (b) there was no declaration in writing that the elector had not previously voted in the election, and would not subsequently vote again; (c) the procedure did not require identification of which of the circumstances mentioned in cl. 51 qualified the elector to cast a pre-poll vote; (It may be that the procedure in fact adopted achieved the purposes of identifying the applicant as a person whose name was on the electoral roll, and ascertaining that that person had not previously voted in the election and would not subsequently vote again. Notwithstanding the absence of a written declaration to these effects, it may be, therefore, that there is limited significance in the aspects of non-compliance identified in (a) and (b) above.)

(ii) The application being in each case an oral one, it obviously was not signed by the elector and witnessed by the officer.

cl. 52(3) 25 It could not be said that the procedure entailed actual non-compliance with cl. 52(3). However, it is apparent that that sub-clause was simply by-passed. No consideration was given to whether or not any cl. 70 question ought to have been put to any applicant, and, if any had, whether the answers were satisfactory. The procedure made implementation of cl. 52(3) impossible.

cl. 53 26 (i) The evidence does not disclose whether cl. 53(1) was implemented: that is, that the elector marked the ballot paper in view of, but so that the vote was concealed from, the officer, folded the ballot paper so that the vote was obscured, and returned the folded ballot paper to the officer;

(ii) there was non-compliance with cl. 53(2) in that the completed ballot papers were not placed in envelopes which were then sealed and placed in a pre-poll ballot box. (The ballot papers themselves were placed in sealed pre-poll ballot boxes, but without envelopes.); (iii) cl. 53(3) was complied with to the extent that a record of electors who voted by the pre-poll procedure, on a copy of the electoral roll, was kept; it is to be noted that the sub-clause does not prescribe the manner in which the record is to be made, and there appears to be no form prescribed for the purpose. I therefore conclude that there was substantial, if not precise, compliance with cl. 53(3).

cll. 78 and 81 27 Cll. 78 and 81 each depend upon the pre-poll ballot papers having been placed in sealed envelopes and then in sealed ballot boxes. The ballot papers not having been placed in envelopes, strict compliance with the provisions of these clauses was not possible. These clauses specify the procedure for removing the envelopes from the ballot boxes, and the ballot papers from the envelopes, for the purposes of counting.

the consequences of non-compliance 28 What flows from the irregularity of the procedure adopted must depend upon the significance of the departures from the statutory requirements. An appreciation of that significance, in turn, depends upon an analysis of the purposes of those statutory requirements. 29 There are, it seems to me, two alternative conclusions to be drawn from the facts I have outlined:

(i) the departure from the statutory requirements was such as to render the pre-poll votes invalid; in this case, the subsequent decision of the defendant not to include the votes in the tally was correct. That circumstance, however, having regard to the number of votes excluded, and the impact of their exclusion on the results, raises the further question whether the election should be declared void;

(ii) the irregularities were not such as to render the votes invalid, and they should, accordingly, be included in the count. A further consequence of that conclusion would be that the plaintiff would be declared elected.

precedent 30 Regrettably little guidance is available from previously decided cases, but it is useful to refer to those few in which courts have been called upon to determine the circumstances in, and the extent to, which departure from electoral requirements will or will not invalidate an election, and the principles stated. 31 The first case to consider is Bridge v Bowen (1916) 21 CLR 582. That case also concerned a local government election. The irregularity consisted in voting by thirteen strangers in the names of thirteen persons entitled to vote but who did not vote. The number of votes was sufficient to affect the result of the election. The secrecy of the ballot process meant that it was not possible to determine whether the votes did in fact affect the result. Griffith CJ (who dissented in the result) quoted from Woodward v Sarsons (1875) L.R. 10 C.P. 733 the following passage: "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 a 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 by being prevented from voting by want of the machinery necessary for so voting, as, by polling stations being demolished, or not opened, 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 declaration of numbers by a returning officer, or by such other 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 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 in original) 32 Barton J (who also dissented in the result) said: "… The common law of elections applies [to municipal and parliamentary elections] where it is not expressly or impliedly excluded by Statute. … The matter is not to be viewed from the standpoint that it is merely a struggle between two rival candidates in which they are the only persons interested. In this instance it is a fact that the election is tainted by fraud and falsehood. But even apart from that fact the question who is to sit and vote is one in which the citizens to be governed are deeply interested, and that not merely as spectators. For every citizen is wronged if the process called on election is rendered abortive, as an ascertainment of the choice of the electors, by the intrusion at the ballot of unqualified persons sufficient in number to prevent any real ascertainment." 33 Isaacs J (who spoke for the majority) condensed his conclusion into six relevant propositions, of which only the fourth need here be noted. It was: "(4) If there has been any official irregularity in the conduct of the election, where the law requires absolute and strict adherence or where the irregularity is so great as to depart substantially from a directory enactment, his selection so-called is void unless he can show the result could not have been affected by it." 34 It will be necessary to return to the reference to "directory enactment". The majority held that the election was not invalid. 35 Re O'Hanlon; ex-parte Collins (1919) VLR 79 was a Victorian case also concerning a local government election. The irregularity in that case was constituted by the returning officer at the suggestion of the two candidates in the election, handing them ballot papers to distribute to electors. It was admitted, and held, that the conduct of the election was "grossly irregular". Hood J wrote: "Ballot papers for votes by post are intended to be applied for by the electors themselves, and they must satisfy the returning officer that they will not be able to be present through some reason, and, on his being satisfied, he may allow them to vote. … If these voters had been told that they could not vote by post, but must give their votes in the ordinary way, or must apply in the prescribed way and satisfy the returning officer that they could not attend on the day of the poll – if they had been told that, it is quite possible that the election might have ended in another way." 36 Bowen v Hinchcliffe (1924) 24 SR (NSW) 262 arose from an election within a trade union. It is unnecessary to refer to the facts alleged other than to say that it was of dishonest interference with some votes cast, and the insertion of some "spurious" votes in the ballot. Street CJ in Eq wrote: "Under the common law relating to parliamentary and municipal elections the court will not interfere and declare an election void unless it is made to appear that something wrong or improper has taken place which has so affected the proceedings or which at least may probably have so affected them that the voters have not had a free and fair opportunity of electing the candidate whom the majority prefer: Woodward v Sarsons … Bridge v Bowen …" 37 In more modern times, three cases are to be noted. In Scarcella v Morgan [1962] VR 201 the principal defect alleged was an insufficiency of ballot papers at two polling places with the result that some electors who attended at those polling places were directed to another, nearby, booth. Other complaints were also made but need not here be discussed. Smith J declared himself satisfied beyond reasonable doubt that if none of the irregularities had occurred the result of the election would have been the same and that accordingly the irregularities did not prevent the majority from the electing the candidate they preferred. It was therefore unnecessary to determine the magnitude of the defects. 38 Ex-parte Hinds; re Penboss [1972] 2 NSWLR 542 was yet another case concerning local government elections. On this occasion the irregularity asserted again related to electors seeking a postal vote. The legislation then in force required an application for a postal vote to be made, in writing, signed by the applicant, and providing specified information, including the ground on which he/she claimed to be allowed to vote by post. It further provided that, if the returning officer was satisfied of the applicant's entitlement so to vote, he was to post to the elector a ballot paper, a ballot paper envelope containing a form of declaration in or to the effect of a declaration prescribed by a Form 2. The Form 2, at the relevant time, listed three grounds upon which a postal vote could be obtained, and also contained a direction in the form of a marginal note stating: "The elector MUST strike out any of these grounds which do not apply to his or her particular case."

(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.

a new poll? 50 In my opinion, having reached the conclusion just stated, it is inevitable that a new election must be held. Indeed, I do not understand any argument to the contrary to have been advanced. The 377 votes excluded would in fact have altered the result. The electors of the Shire have not elected their chosen representative. 51 It will be necessary to declare the election void and order that a new poll be conducted.

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