Opinion Number. 190

Subject

ELECTIONS EFFECT OF PERSONATION OF ELECTOR ON RIGHT TO ABSENT VOTE

Key Legislation

CONSTITUTION, s. 41 : COMMONWEALTH ELECTORAL ACT 1902, s. 139

Date
Client
The Secretary, Department of Home Affairs

A memorandum dated 2 August 1904 by the Chief Electoral Officer has been submitted to me for advice.

The memorandum relates to regulation 14 of the Regulations of 19 October 1903, under the Commonwealth Electoral Act 1902, and apparently raises the following questions:

  1. Is regulation 14 in conflict with section 41 of the Constitution in that it requires the Returning Officer to reject an absent voter's ballot-paper if it appears to him that some person has already voted in the name signed on the counterfoil?
  2. Is there power to amend Regulation 14 by omitting the direction to the Returning Officer to reject the ballot-paper on the ground specified in question 1
  1. I am of opinion that regulation 14 in no way conflicts with section 41 of the Constitution.
  2. I am of opinion that there is power to amend the regulation by omitting the direction relating to the rejection of ballot-papers.

The question whether the regulation should be amended or not is a question of policy. The object of the direction was to guard against personation and plural voting. It is clear that where two or more votes are given in respect of the same name they cannot all be good votes. If they are all counted the election might be invalidated. The rejection of one or more votes under the regulation would in no case invalidate the election. Therefore, in preparing the regulation, rejection of the votes was preferred. Another ground was that a vote given in any of the ordinary methods defined in the Act ought to be preferred to one given by the extraordinary method provided by the Regulations. It was deemed safer to avoid any possibility of votes under the Regulations coming into conflict with votes under the Act.

[Vol. 4, p. 320]