The Chief Electoral Officer has forwarded the following memorandum for advice:

A question has arisen in the Corangamite election (three candidates) as to whether ballot-papers marked in the following manner, viz:

[X]
[2]
[3]

should be treated as informal in view of the provision contained in section 133 (2) of the Electoral Act.

Having regard to the provison as to the marking of ballot-papers in a House of Representatives election (section 124) and to paragraph (c) of section 133, it would seem that where there are two candidates a first preference can be indicated by means of a cross but not otherwise.

Section 133 of the Commonwealth Electoral Act 1918-1919 provides inter alia that a House of Representatives ballot-paper shall be informal if it does not indicate the voter's first preference for one candidate and in the case of any election where there are more than two candidates his contingent votes for all the remaining candidates. Where there are two candidates only the first preference only may be indicated and that preference may be indicated by a cross.

At an election where there are more than two candidates the first preference for one candidate and contingent votes for the other candidates must be marked on the ballot-paper. The first preference must be marked by using the figure 1 (section 124).

The requirements of section 124 are mandatory and the case submitted is not covered by the provisos to section 133 (1) (c).

Sub-section (2) of section 133 provides that a ballot-paper shall not be informal for any reason other than the reasons specified in this section, but shall be given effect to according to the voter's intention so far as his intention is clear.

The informality in this case, namely, that the voter's first preference is not indicated, is one specified in section 133, and sub-section (2) therefore does not operate to save the ballot-paper which in my opinion is informal.

[Vol. 16, p. 330]