JUDGMENT ON POINTS OF LAW.
SIR MALCOLM McEACHARN
Melbourne, March 10.
The High Court of the Commonwealth to-day delivered judgment on the points of law referred to it by his Honor the Chief Justice, sitting as a Court of Disputed Elections, in the trials of the petitions of Mr. J. M. Chanter against the return of Mr. R. O. Blackwood for Riverina, and of Dr. Maloney against the return of Sir Malcolm McEacharn for Melbourne.
In delivering judgment on the ques- tions in the Riverina petition, the Chief Justice said that the first question as to the validity or otherwise of certain votes divided itself into two parts. The first was whether the ballot-papers on which a cross had been marked opposite Mr. Chanter's name, but not within the square provided, were valid or invalid. His Honor described the ballot-paper, and said that the crosses had been placed between the square and tbe name of the candidate. These were re- jected at the scrutiny on the ground that the crosses were not within the squares printed on the ballot-papers. Section 115 of the Electoral Act provided that, elec- tors for the House of Representatives were to mark the ballot-papers by making a cross in the square opposite the name of the candidate voted for. That assumed that there was to be a square on the bal- lot-paper. The contention was that it was imperative that the cross should be within the square, and that if it were anywhere else the vote was informal. The Act pro- vided that the returning-officer should supply ballot-papers, but there was noth- ing in section 124 to say whether they should be printed or written. Section 132, however, provided that they "may be in
the form P" in the schedule of the Act. That was directory, and not mandatory.
What is a Square?
The form referred to showed horizontal
iines across the paper, above and below, the name of each candidate, and perpendi- cular lines on the right side, thus forming squares. Section 151 provided that the ballot paper should be marked by making a cross, in the square opposite tbe name of the candidate. Clearly that meant that there should be a square there. To disal- low a vote because the voter had failed to do what it was impossible for him to do would be a most extraordinary construction for them to place upon the Act. It seemed to him so far that the clause could only be read to mean that if there were a square, in that square was the proper place to make the cross. Marking a cross opposite the candidate's name was the only way in which an elector could express his preference. The Act was somewhat ambiguous, but section 199 directed that the court should consider all cases on their substantial merits and good conscience, without regard to legal technicalities. It appeared to him that it was not necessary that the square should be a four-sided, equilateral one, but it might be an irregular square space. It need not be a mathematical square, but a place which an ordinary person would take to be a square place. The place where the crosses were marked was opposite the candidate's name, and in a place on which two horizon- tal lines and one vertical line marked three sides of a square. In his honor's opinion, therefore, the votes were not informal.
Striking Out a Name Not Illegal.
The second portion of the question referred to ballot papers which had the cross properly placed in the square provided opposite Mr. Chanter's name, but in which Mr. Blackwood's name had been struck out. That was not forbidden by the Act. Only marks which would not enable the votes
to be identified were prohibited. The strik- ing out of the other candidate's name did not render the vote informal. Another question referred to the votes recorded by voters who did not vole at their own polling-places but at other poll- ing-places within the electorate. Section 139 gave them power to do that on making a declaration on the form provided. On doing that the voter was entitled to have handed to him a ballot-paper in the ordi- nary way. The voters objected to did not have ordinary ballot-papers handed to them, but were given blank papers similar to those used by voters by post. No names were printed or written on them, and there were no squares on them when given to the elec- tors by the returning officer. The name of the candidate voted for was written on the ballot-paper by the voter. These votes were invalid, as they did not com- ply with the provisions of the Act. The only voters who were allowed to write the names of the candidates they voted for were voters by post.
No Jurisdiction in Bribery Cases.
Another question had reference to the power or jurisdiction of the Court of Dis- puted Returns in matters of illegal practices, especially bribery. He was afraid that he was responsible for the question being stated hardly in the way he wished. What he greatly desired to refer was whether the court had power to void an election on ac- count of one instance of bribery. Sir John Quick had specifically stated that he did not intend to allege general bribery. His Honor referred to the common law on bri- bery, and said that it was not necessary, as the question was not put, for the court to decide whether the common law is the law of Australia. The colonies which had be- come States had formerly their own elec- toral laws and in every instance penalties were provided for bribery. The Common- wealth Act provided that a candidate con- victed of bribery should be liable to im- prisonment not exceeding 12 months, and should forfeit his seat. The Commonwealth Parliament had deliberately made this law, and had thereby con- ferred jurisdiction on the ordinary court. He, therefore, did not think that that court had jurisdiction to void an election on the ground of illegal practices.
Mr. Justice Barton Concurs.
Mr. Justice Barton generally concurred in all of the judgment of the Chief Justice. He said that the mark in the square oppo- site the candidate's name was a mandate, but the square was merely a direction. He did not think that the objection to the votes on which the name of the second candi- date had been struck out had been seriously argued at the bar. A mark which made the intention of the voter still more clear than the cross alone could not possibly be constituted illegal. The Act was clear that voters who voted at polling-booths in the electorate away from the polling-place they were enrolled for should receive ordinary ballot-papers. The effect of allowing or disallowing the votes referred to in the question submitted was a matter purely for the judge who tried the petition. He was of opinion that the court had no jurisdic- tion to void elections for bribery. That was as the law stood, but the representatives of the people might have an opportunity of considering the question, and taking such course as might seem advisable.
A Dissenting Voice. Mr. Justice O'Connor dissented from the judgment of the Chief Justice and Mr. Jus- tice Barton on the question as to the bal- lot-papers in which the crosses were placed between the name of the candidate and the square. He held that the provision that the cross should be placed in the square was mandatory, and that any vote recorded in any other way was informal. On the other question, his Honor agreed with his brother judges.
The questions were answered as stated in the judgment. No costs of the reference to the Full Court were allowed.
Maloney versus McEacharn.
In the afternoon the Chief Justice sat as a Court of Disputed Elections to proceed with, the trial of the petition of Dr. Maloney against the return of Sir Malcolm McEacharn for the Mel- bourne electorate. The applications for ballot papers, the signatures to which had, according to the judgment of the Full Court, been improperly attested, were put in and examined by his Honor, who inspect- ed the attesting signatures to every appli- cation. The majority of them were signed by police constables, sergeants of police, and other persons unqualified by the Act. A considerable number, however, were signed by justices of the peace, and a few by school teachers and postmasters, and one or two by electoral registrars. There was one signed by a physician and one by a detec- tive. His Honor sorted out those applica- tion forms with the ballot papers attached
which, were witnessed by police constables.,
and other unqualified persons. These were then counted, and found to number 303, so that it was claimed on behalf of Dr. Ma- loney that 303 persons voted who were not entitled, to vote. His Honor then examined the so-called postal ballot papers, which the court had also held to be invalid on account of the vote being recorded upon other than ordinary ballot papers. Of this class of votes there were 20 for Dr. Maloney and 46 for Sir Malcolm McEacharn.
Mr. Gaunson said that this made be- tween 240 and 250 bad votes which had been recorded for Sir Malcolm McEacham. Con- sequently he was not elected, and the peti- tioner was entitled to claim the seat.
According to the returning-officer's re- turn Sir Malcolm McEacharn was elected by a majority of 77. It was submitted that this majority was more than wiped out by the bad votes, which under the judgment of the Full Court to-day would have to be struck off.
Subsequently, Mr. Gaunson said that in the interest of the general public, and see- ing that it was quite a new system, and that errors must almost inevitably arise the pe- titioner did not wish to take advantage of such a position, and would be quite satisfied to have the election voided.
Mr. Mitchell said that the respondent was quite prepared to have the election voided, and would leave it in the hands of his honor.
His Honor said that the view he took of the case was that if the votes were informal through any fault of the voters the votes should simply be struck off, but if the in- formality arose through any fault of the electoral officers then the election should be voided. In this case he thought that the fault lay with the Commonwealth electoral officers in issuing the instructions they did, and therefore he declared that the respon- dent was not duly elected, and that the elec- tion was absolutely void. No costs were
allowed to either side.