Opinion Number. 296

Subject

SENATE ELECTIONS WHETHER FORM OF BALLOT-PAPER MAY BE ALTERED WHERE SINGLE SENATOR TO BE ELECTED

Key Legislation

ACTS INTERPRETATION ACT 1901, s. 23 : COMMONWEALTH ELECTORAL ACTS 1902-1906, s. 209

Date
Client
The Secretary, Department of Home Affairs

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

The directions on the ordinary form of Senate ballot-paper ('O') and on the Absent Voters form of ballot-paper (Regulation 23), although perhaps not inconsistent with the requirements of an election for one Senator, do not appear to contemplate such a contingency. The directions on the Senate postal ballot-paper, on the other hand, appear to contemplate an election of one Senator or several Senators.

A question has arisen as to whether-in order to preclude any possibility of misunderstanding on the part of voters-it is necessary or desirable that the directions on the ordinary and Absent Voters ballot-papers should be amended by Regulation or otherwise.

It does not appear to be expedient to have two forms of Senate ballot-paper of the same class bearing a close resemblance owing to the possibility of confusion at some future date at remote polling places, where the printing of ballot-papers is not under the immediate supervision of the Commonwealth Electoral Officer for the State or the Divisional Returning Officer. Therefore, if any action be taken, it would seem to be desir-able to adapt the directions on the existing forms 'O' and Regulation 23 to more clearly meet the requirements of an election of one or several Senators instead of providing a separate form of ballot-paper for single elections.

If the Attorney-General's Department considers that action should be taken in anticipation of the forthcoming election in the State of South Australia, it is desirable that the amending Regulation should be so framed that if from any cause, such as the extreme remoteness of a polling place, say, in Central Australia, a ballot-paper containing the existing directions be used the vote given will not thereby be invalidated.

It should perhaps be stated that it is proposed that the Presiding Officer shall inform each elector applying for a ballot-paper at the forthcoming South Australian election that he should vote for one candidate only, and also to freely display placards containing this information in each polling booth.

I am of opinion that no regulation for the alteration of the forms of ballot-papers is necessary.

The Acts Interpretation Act 1901, section 23, enacts that words in the singular include the plural and words in the plural include the singular.

The forms in the Electoral Acts in relation to Senate elections are expressed in the plural.

It is perfectly consistent with the Acts Interpretation Act to make any change in the forms necessary to alter the expression of the forms from the plural to the singular.

Further, section 209 (1) of the Electoral Act enacts that strict compliance with the forms in the Schedule shall not be required and substantial compliance therewith shall suffice for the purposes of the Act.

I think, therefore, that the adaptation of the forms to fit an election for one Senator instead of more than one would not amount to a real alteration of them and that the forms as so adapted would be good, and that even if the adaptation involved real alterations they would not so long as they were necessary be alterations in substance.

In connection with the papers some forms with alterations as suggested by the Commonwealth Electoral Officer for South Australia have been referred to me.

These propose to omit the words 'He must vote for the full number of candidates to be elected' from the ordinary form of ballot-paper and the similar form of words from other ballot-papers.

I think the Act intended a direction to appear on the ballot-papers and that therefore it should not be omitted but should be changed to meet the case of an election for one Senator.

The alterations suggested, subject to the above observation appear to me to meet the case.

In the case of the ordinary ballot-papers and Absent Voters ballot-papers, I would suggest that the words 'He must vote for one candidate only' be substituted for the words 'He must vote for the full number of candidates to be elected1.

In the case of postal ballot-papers I would suggest that the words 'N.B. The elector must vote for one candidate only' be substituted for the words 'N.B. The elector must vote for the full number of candidates to be elected, but not for any greater number'.

[Vol. 6, p. 220]