Opinion Number. 270

Subject

ELECTIONS WHETHER POSTAL VOTE BY ELECTOR WHO DIES BEFORE POLLING DAY IS VALID

Key Legislation

COMMONWEALTH ELECTORAL ACTS 1902-1905, PartX

Date
Client
The Secretary, Department of Home Affairs

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

The Commonwealth Electoral Officer for Queensland has submitted the following question which has been referred to him by one of his Returning Officers:

'Supposing an elector, after having availed himself of the facilities provided in Part X (Postal Voting) of the Electoral Acts, dies before polling day, is the vote recorded by that person allowable? I would be inclined to reject it.'

Paragraph 24 of the petition, dated 29 January 1904, addressed by Mr J. M. Chanter to the Justices of the High Court sitting as the Court of Disputed Returns in the matter of the election of a Member for the House of Representatives for the Electoral Division of Riverina reads as follows:

'That at the Hay polling place a postal vote, purporting to be signed by A.B.C., Bank Manager of Deniliquin, was received by the Returning Officer on or before the day of election; that on the day of election such postal ballot-paper was opened and counted; that I am informed and believe the said A.B.C. died several days before the day of election, and that notwithstanding his death, the said vote was allowed; that I have every reason to believe it was not in my favour, but in favour of my opponent.'

It appears to me that under circumstances similar to those detailed above the Divisional Returning Officer should, at the scrutiny, disallow the postal vote after obtaining positive proof of the death of the elector.

A preliminary enquiry as to the elector's right to vote is made on the application for the postal vote certificate and the postal vote certificate certifies to that right. The elector afterwards votes in the manner allowed by the Act. He had a right to vote at the time he voted, and there is nothing in the Act to indicate that his vote is invalidated by his death.

I am of opinion that, under the circumstances mentioned in the memorandum, the postal vote should be allowed.

[Vol. 5, p. 462]