Opinion Number. 1031

Subject

ELECTIONS POSTAL VOTING: ISSUE OF POSTAL VOTE CERTIFICATE NOTED AGAINST WRONG PERSON'S NAME: CIRCUMSTANCES IN WHICH SUCH PERSON CAN VOTE AT POLLING

Key Legislation

COMMONWEALTH ELECTORAL ACT 1918. ss. 91 (3), 115. 219

Date
Client
The Chief Electoral Officer

The following memorandum has been submitted to me for advice by the Chief Electoral Officer:

It occasionally happens, owing to the similarity of names on the certified list of voters, that a name is noted on the list as that of a person to whom a postal ballot-paper and postal vote certificate have been issued when in fact the elector has not made an application for, nor has there been issued to him, a postal vote certificate and postal ballot-paper.

In such a case the presiding officer having before him prima facie evidence of the issue of these documents is precluded from permitting the elector to vote at the polling by reason of section 91 (3) which reads:

An elector to whom a postal vote certificate has been issued shall not be entitled to vote at any polling booth unless he first delivers to the presiding officer for cancellation his postal vote certificate and postal ballot-paper.

I shall be pleased to be advised whether it would be lawful to make a regulation, providing that an elector may be permitted to vote as an ordinary voter, notwithstanding that a notation appears on the certified list of voters opposite his name that a postal vote certificate and postal ballot-paper have been issued to him, but only if he makes a written declaration before the presiding officer at the polling place in accordance with the following (or a similar) form:

Commonwealth of Australia

I claim to vote at the election being held this day as an elector of the Division of (here insert name of Division) and declare that I am the person whose name appears as (here insert name in full and particulars as appearing on the Roll) on the certified list of voters for this polling place, that I have not already voted the certified list of voters for this polling place, that I have not already voted either here or elsewhere at this election, and that I have not applied for a postal vote certificate and postal ballot-paper nor has a postal vote certificate and postal ballot-paper been issued to me in connection with this election.

Signature of voter . . .

(in own handwriting)

Signed before me at the . . . polling place in the Division of . . .

If the elector had voted by post the postal vote could be identified and excluded from the count upon the hearing of a petition but it would, of course, be impossible to identify the vote recorded by the elector at the polling and that vote, it is presumed, would be valid if sanctioned by a permissive regulation.

In my opinion a person, whose name is noted on the list as that of a person to whom a postal ballot-paper and postal vote certificate has been issued, may, if he satisfies the presiding officer that the notation has been made in error, and that, in fact, he has neither applied for nor received such ballot-paper or certificate, be allowed to vote.

Section 115 specifies the questions that may be put to a person claiming to vote. One of those questions is: 'Have you already voted either here or elsewhere at this election?'

As the notation on the list gives rise to the presumption that the person claiming to vote is debarred from so doing by sub-section (3) of section 91, I think the presiding officer is entitled to satisfy himself by additional questions as to the non-application of that sub-section and to require that the answers given be made in writing.

A regulation laying down the procedure in cases such as that under consideration is in accordance with the scheme of the Act and 'necessary or convenient' for giving effect thereto.

[vol.17,p.147]