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

It is understood that certain ballot-papers in the Ballarat election (two candidates) marked in the following manner:

[X]
HI
[1]
[X]

will be reserved by the Divisional Returning Officer in the re-count now in progress for the decision of the Commonwealth Electoral Officer (section 140 of the Act).

In view of the provision contained in section 133, it would seem that the voters who marked the ballot-papers in question have rendered their intention obscure but before giving a decison the Commonwealth Electoral Officer desires legal advice.

The normal method of marking House of Representatives ballot-papers at an election where there are only two candidates is by placing the figure 1 in the square opposite the name of the candidate for whom the elector votes as his first preference and by placing the figure 2 in the square opposite the name of the other candidate.

Variations of this method are allowed by the provisos to section 133 (1) (c) so that a ballot-paper is formal if the voter's first preference only is indicated, and in such case the first preference may be indicated by the use of either the figure 1 or a cross.

The use of a cross on a ballot-paper is authorised only where the voter does not mark his second preference and in such case the cross is counted as an indication of a first preference.

In the cases submitted, both the figure 1 and a cross appear on the same ballot-paper.

Neither of the cases submitted is covered by the provisos above referred to.

Sub-section (2) of section 133 declares that informalities other than those specified in the section shall not invalidate the ballot-paper which shall be given effect to according to the voter's intention so far as his intention is clear.

As both the figure 1 and a cross are, when properly used, indications of a first preference, it does not appear that the voter's intentions are clear.

In my opinion both the ballot-papers are informal.

[Vol. 16, p. 328]