Opinion Number. 1855

Subject

ELECTIONSHOUSE OF REPRESENTATIVES ELECTION: WHETHER A CANDIDATE MAY ACT AS HIS OWN SCRUTINEER: MEANING OF ‘REPRESENT’ A PERSON

Author
Key Legislation

COMMONWEALTH ELECTORAL ACT 1918 ss 108, 110, 130

Date
Client
The Chief Electoral Officer

The Chief Electoral Officer for the Commonwealth has forwarded to me for advice the following communication:

At the last General Election the question arose whether a candidate at a House of Representatives election could act as Scrutineer on his own behalf at the scrutiny of the votes at that election.

Section 108 of the Electoral Act provides that ‘Scrutineers may be appointed by Candidates to represent them at Polling places during the polling …’ and Section 110 sets out that ‘No Candidate shall in any way take part in the conduct of an election, and no person, other than the Presiding Officer, Assistant Presiding Officers, Poll Clerks, Doorkeepers and Scrutineers, and the electors voting and about to vote, shall be permitted to enter or remain in the polling booth during the polling except by permission of the Presiding Officer.’.

Section 130 of the Act says ‘Each Candidate may by notice in writing or by telegram addressed to the Assistant Returning Officer or Divisional Returning Officer, as the case requires, appoint one scrutineer to represent him at the scrutiny at each polling booth or other place at which the scrutiny is being conducted, and such notice or telegram shall be signed by the candidate and shall give the name and address of the scrutineer.’.

It is clear that a candidate is ineligible to act as a Scrutineer on his own behalf at the polling but insomuch as Section 110 appears in Part XIII of the Act which relates to the polling whereas Section 130 is included in ‘Part XIV—The Scrutiny’ there appears to be some reason for doubt whether the provisions of Section 110 actually preclude a candidate from appointing himself to act as a Scrutineer (on his own behalf) at the scrutiny.

The favour of an opinion on the point would be appreciated.

(2)  Although reference is made to section 110 in the memorandum for advice, I think that the question can be determined by reference to section 130 alone. Section 130 enables a candidate to appoint one scrutineer to represent him at the scrutiny at each polling booth.

(3)  The word ‘represent’ is defined in the Oxford English Dictionary as meaning, inter alia—

‘To take or fill the place of (another) in some respect or for some purpose; to be a substitute in some capacity for (a person or body); to act for (another) by a deputed right’. I think this is the sense in which the word represent is used in section 130.

(4)  Accordingly a person cannot, in my view, be represented by himself and, if he appears on his own behalf, he appears in person. There is, however, nothing in the Act which, in my view, permits a candidate to appear as his own scrutineer.

(5)  In my opinion, therefore, at a House of Representatives election a candidate is not permitted to act as a scrutineer on his behalf at the scrutiny of the votes at that election.

[Vol. 38, p. 292]