Appendix D – Legal advice
from the Australian Government Solicitor
Our ref. 10045064
30 August 2010
Mr Paul Pirani
Chief Legal Officer
Australian Electoral Commission
PO Box 6172
KINGSTON ACT 2604
Dear Mr Pirani
Issues with Ballot-Boxes Containing Pre-Poll
Ordinary Ballot Papers
1. Thank
you for your email of 25 August 2010 in which you requested urgent advice in
relation to possible contraventions of the Commonwealth Electoral Act 1918 (the
Act) relating to ballot-boxes containing pre-poll ordinary ballot papers.
Summary of Advice
2. In
the present circumstances, we consider that the better course of action is not
to include the ballot papers in the count and to quarantine those papers
(although for the reasons we discuss below, it is possible that a court might
take a different view).
3. If
the discarded votes could affect the outcome of the election, we think it would
be appropriate for the Australian Electoral Commission (AEC) to file a petition
disputing the election in the court of disputed returns as permitted by s 357.
4. We
cannot see any other way of correcting the errors and consider that there is
real doubt as to whether s 285 is available in the present circumstances.
Background
5. The
following background is taken from your request for advice:
Background
Division 3 of
Part XVA of the Electoral Act commenced operation on 14 July 2010 and was
inserted by Schedule 1 to the Electoral and Referendum Amendment (Pre-poll
Voting and Other Measures) Act 2010. In essence these new provisions
enabled an elector who qualified for a pre-poll vote under Schedule 2 to the
Electoral Act to cast their ballot papers as ordinary votes in their home
Division. Section 200DP of the Electoral Act sets out the requirement that at
the end of each day of pre-poll ordinary voting, the ballot-box was to be
sealed in the presence of scrutineers. Subsection 200DP(2) of the Electoral Act
provides that after the pre-poll ordinary ballot-box has been sealed “it must
on no account be opened except in accordance with this Act”.
Section 200DR
of the Electoral Act provides that subject to any directions from the
Divisional Returning Officer, the voting officer “must with the least possible
delay, forward each sealed pre-poll ordinary ballot-box for the purposes of
scrutiny”.
The scrutiny
provisions are set out in subsections 273(2) and 274(2) of the Electoral Act
and include the requirement to “exhibit for the inspection of scrutineers ….
each pre-poll ordinary ballot-box…received from a voting officer …”.
The incidents
The AEC has
become aware of two incidents where the above requirements of the Electoral Act
have not been complied with.
Oaklands Park Pre-poll Voting
Centre – Division of Boothby
It appears that
the Officer in Charge of the Oaklands Park PPVC provided two small plastic
ballot-boxes on each day of pre-polling (one for House of Representatives
ballot papers and the other for Senate ballot papers). After the close of pre-polling
each day the Office in Charge broke the seals on the two small ballot-boxes
containing pre-poll votes in the presence of at least one other polling
official and the details of the numbers of ballot papers were recorded and
witnessed. The ballot papers were removed and placed in two larger plastic
ballot boxes that were sealed with fresh seals each day These larger plastic
ballot boxes are still official AEC ballot-boxes that are used in polling
places which historically receive larger numbers of ballot papers. This action took
place in a secure room after all the public had left at the end of each day of
pre-poll voting. The two larger sealed ballot-boxes were then delivered to the
Boothby scrutiny centre for the counting team on 21 August 2010 at 5.30 pm. No
scrutineers were present at the Oaklands Park PPVC when the Officer in Charge
opened the original ballot-boxes.
The two larger
ballot-boxes were opened at the Boothby counting centre at about 8.15pm on 21
August 2010 for the commencement of counting in the presence of scrutineers. It
was immediately noticed by scrutineers (as the ballot papers were neatly
stacked) and questioned as to where they had come from. One of the plastic
ballot- boxes contained 2,977 House of Representatives ballot papers while the
other contained 2,980 Senate ballot papers.
Blackwater Pre-poll Voting
Centre – Division of Flynn
On Friday 20
August 2010 after 6pm (i.e. the evening before polling day) the Officer in
Charge of the Blackwater PPVC broke the seals of the ballot-boxes containing
House of Representatives and Senate ballot papers and commenced to count the
pre-poll ordinary ballot papers (it is presently understood that this involved
452 House of Representatives ballot papers and the same number of Senate ballot
papers). This was not done in the presence of scrutineers. The Officer in
Charge was advised by the Divisional Returning Officer to immediately replace
these ballot papers into a ballot-box and to place a fresh seal on the ballot-box.
The Officer in Charge complied with this request but it was later discovered
that he had also placed some pre-poll declaration envelopes into the resealed
ballot-box. The pre-poll ballot-box was removed to the AEC Divisional Office.
After the close of polling on 21 August 2010, the Divisional Returning Officer
in the presence of other AEC staff broke the seal on the ballot-box and
extracted the declaration vote envelopes for the purpose of including these
envelopes in the exchange process (in which they are sent to their home
Division) and then resealed the ballot-box. The ballot-box was then sealed and
has remained under quarantine.
6. You
seek our advice as to whether:
a) the
above actions have resulted in there being a requirement to exclude these
pre-poll ordinary ballot papers from the count; and
b) s
285 or any lawful means exists to overcome the AEC polling officials’ errors so
that these pre-poll ordinary ballot papers are able to be included in the
count; and
c) whether,
in the event that neither of these errors can affect the result of the
election, the AEC should be taking any other action.
Advice
7. In
our view, the Act has been contravened at both the Oaklands Park Pre-Poll
Voting Centre (Oaklands) and the Blackwater Pre-Poll Voting Centre
(Blackwater). Section 200DP(2) provides that 'after a pre-poll ordinary
ballot-box has been sealed, it must on no account be opened except as allowed
by this Act'. The only situations in which a pre-poll ordinary ballot-box can
be opened are to allow the ballot-box to be used again on a later day in
accordance with the requirements of s 200DQ or during the scrutiny process
provided for in ss 273 and 274. Nothing in the Act:
—permits a pre-poll ordinary ballot-box to be opened for the purpose
of counting the ballot papers and transferring those ballot papers to another
ballot box as occurred in Oaklands;
—permits a pre-poll ordinary ballot-box to be opened for the purposes
of counting the ballot papers prior to the scrutiny (which can only occur at
the end of polling day) as occurred in Blackwater.
8. The
question that now arises is: what is the effect of non-compliance with the
requirements of the Act? There is an issue as to whether non-compliance with
the statutory requirements rendered the votes invalid. In Maloney v
McEacharn (1904) 1 CLR 77, the High Court held that postal votes that were
not properly attested were invalid. The court viewed the requirements for
attestation to be mandatory.
9. Similarly,
a good argument can be made that the requirements of the Act relating to the
opening of ballot-boxes are crucial to maintaining the integrity of the votes
cast. In the present circumstances, non-observance of those requirements means
that it is possible that the ballots could have been tampered with or that
information about voting patterns could have been disclosed to electors prior
to polling day. Such action would affect the integrity of the vote. In
addition, the wording of s 200DP(2), and particularly the use of the words 'on
no account' is a strong indication that Parliament considered compliance with
this requirement to be crucial and one that must be observed.
10. Having
said this, we do not think it is entirely clear that the ballot papers in
question should be excluded from the count.
—The Act does
not expressly require or permit electoral officials to exclude ballot papers in
the circumstances under consideration.
—Under the Act, the only basis on which an ordinary ballot paper can
be rejected is where it is informal. The term informal ballot paper is defined
in s 268 and, in our view, the ballot papers in question are not informal
within the meaning of s 268.
—In Mitchell v Bailey (No 2) (2008) 169 FCR 529 (Mitchell),
the Federal Court held that a ballot paper must be included in the count if it
is a formal vote. For example, Tracey J said (at 537):
If a ballot
paper is not informal the officer conducting the scrutiny will have no legal
basis for rejecting it. An implied obligation to admit such a ballot-paper to
the count thereby arises. Once admitted it is to be counted.
—The validity of the ballot papers can be considered by the Court of
Disputed Returns and Part XXII specially envisages that the Court of Disputed
Returns will consider errors made by electoral officials in this process (s
365).
—The question of whether non-compliance with formal requirements
invalidates an action is one on which minds may differ. We note here that in Fenlon
v Radke [1996] 2 Qd R 157 the Queensland Court of Disputed Returns held
that the failure of polling officials to strictly comply with a requirement to
take declaration votes out of their envelopes and put them in a sealed ballot box
without unfolding them did not invalidate the votes in question or the
election. In that case the court made comments to the effect that it would be
an 'bizarre' result if electoral officials could invalidate what would
otherwise be valid votes by disregarding statutory requirements.
11. In
the present circumstances, we consider that the better course of action is not
to include the ballot papers in the count and to quarantine those papers.
—As discussed above, there is High Court authority that votes are
invalid where there has been a breach of a provision of the Act that affects
the integrity of votes. We think that the current breach is of a similar kind.
—While ss 273 and 274 provide for the scrutiny of ordinary ballot
papers, we doubt that that mechanism is intended to exhaust the circumstances
in which ballot papers may not be counted. We say this because if the
requirements of those sections are observed, officials are required to
separately parcel 'formal' and 'informal' papers. Whatever course of action is
taken, there would appear to be a risk of the ballot papers in question
becoming mixed with other ballot papers such that they could cease to be
identified and considered in proceedings in the Court of Disputed Returns.
—We think that Mitchell can reasonably be distinguished on the
basis that it concerned the question of whether s 268 of the Act had been
properly applied and there was no question that the votes should have been
excluded due to wider concerns about their validity.
12. If
the discarded votes could affect the outcome of the election, we think it would
be appropriate for the AEC to file a petition disputing the election in the
Court of Disputed Returns as permitted by s 357. We note that similar action
was taken by the AEC in AEC v Towney (1994) 51 FCR 250 (although that
case involved a situation in which the legislation in question required the
ballot papers to be excluded from the count).
13. There
is a question here about whether the AEC can count the votes to determine if
the outcome of an election would be affected, but we have not considered this
issue at this stage. We would be happy to so if this would be helpful.
14. We
cannot see any other way of correcting the errors. In particular, we think that
there is real doubt as to whether s 285 is available in the present
circumstances. We doubt that an error in the keeping of the ballot box or in
counting the votes earlier than they should have been can be described as an
'error ... in the … transmission or, return of any … ballot papers'
(emphasis added).
15. Mr
Peter Lahy, Deputy General Counsel, has read and agrees with this advice.
Yours sincerely
Bridget
Gilmour-Walsh
Senior General
Counsel