Re William Joseph Yarran v Michael Blurton; Fred Collard; Gwen Corunna; Len Colbung; Dennis Eggington; Terrence Garlett; Robert Isaacs; John Kalin; Larry Kickett; John Mcquire; Jim Morrison; Frank Nannup; John Pell; Neil Phillips; Spencer Riley; Rob Ri [1992] FCA 199 (11 May 1992)

FEDERAL COURT OF AUSTRALIA

Re: WILLIAM JOSEPH YARRAN
And: MICHAEL BLURTON; FRED COLLARD; GWEN CORUNNA; LEN COLBUNG; DENNIS
EGGINGTON; TERRENCE GARLETT; ROBERT ISAACS; JOHN KALIN; LARRY KICKETT; JOHN
McQUIRE; JIM MORRISON; FRANK NANNUP; JOHN PELL; NEIL PHILLIPS; SPENCER RILEY;
ROB RILEY; JACK WALLEY; GLORIA WALLEY; TED WILKES; LAUREL WINDER and THE
AUSTRALIAN ELECTORAL COMMISSION
No. WA G6 of 1991
FED No. 275
Aborigines - Elections
(1992) 107 ALR 514

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)

CATCHWORDS

Aborigines - Aboriginal and Torres Strait Islander Commission - Regional Council - Election - secret ballot requirement - election rules - ballot paper in envelope bearing voter's identity - grouping of names on ballot papers - whether rules complied with requirement for secret ballot - discretion of court to make orders.

Elections - secret ballot - history - meaning - Aboriginal and Torres Strait Islander Commission - Regional Council elections - secret ballot requirement - whether election rules provided for secret ballot - ballot paper in envelope bearing voter identity - not secret ballot - discretion of court to make orders - declaration that election not according to secret ballot - declaration that election void.

Fredman - The Australian Ballot: The Story of an American Reform (1968) Mich. State U.P.

The Austalian Encyclopaedia (Grolier Society) - 4th Edition (1983)

Crowley - A Documentary History of Australia Vol. 2

Aboriginal and Torres Strait Islander Commission Act 1989 s.6, s.7, s.92, s.100, s.109, s.110, s.113, s.140

Acts Interpretation Act 1901 s.48

Commonwealth Electoral Act 1918

Electoral Act 1856 (19 Vic. No. 12)

The Parliamentary Elections Act 1858 (Tas) (21 Vic. No. 32)

Ballot Act 1877 (WA) (41 Vic. No. 15)

Ballot Act 1872 (Imp) (35 and 36 Vic. c.33)

The Commonwealth Electoral Act 1902 (No. 19 of 1902)

Thorpe v. Minister for Aboriginal Affairs [1990] FCA 496; (1990) 97 ALR 543

The Maple Valley Case (1926) 1 DLR 808

Morgan v. Simpson (1974) 3 All ER 722

Stannanought v. Hazeldine (1879) 4 LR CPD 191

Cameron v. Australian Workers' Union (1959) 2 FLR 45

Hibbert v. Federated Clerks Union of Australia [1983] FCA 162; (1983) 76 FLR 372

Re Federated Liquor and Allied Industries Employees Union of Australia, New South Wales Branch; Ex parte Pullen (1990) 34 IR 264

Blurton v. Minister for Aboriginal Affairs [1991] FCA 204; (1991) 101 ALR 350

Brahim and Ors. v. The Commonwealth Electoral Commissioner (unrep. Fed Ct, 16.8.91, Olney J.)

HEARING

PERTH
11:5:1992

Counsel for the Petitioner: Dr J. Cameron

Solicitors for the Petitioner: Aboriginal Legal Service

Counsel for the Second Respondent: Mr C.J. Pullin QC

Solicitors for the Second Respondent: Australian Government Solicito r

ORDER

The Court orders that:
1. It be declared that the Regional Council Election Rules made on 9 July 1990 which were in force at the time of the election for the Perth Regional Council did not provide for voting to be by secret ballot as required by s.109 of the Aboriginal and Torres Strait Islander Commission Act 1989.

2. The election for the Perth Regional Council conducted under the Aboriginal and Torres Strait Islander Commission Act 1989 on 3 November 1990 is declared void.

3. There be liberty to the parties to apply within fourteen (14) days for further orders and on the question of the costs of the petition.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
Introduction

DECISION

On 3 November 1990, elections were held throughout Australia for sixty Regional Councils established under the Aboriginal and Torres Strait Islander Commission Act 1989 ("the ATSIC Act"). One of those is the Perth Regional Council. There were 20 vacancies to be filled and some 48 candidates. Voting was carried out in accordance with Regional Council Election Rules made by the Minister under s.113(1) of the Act. On 14 January 1991 an unsuccessful candidate in the election filed a petition under Schedule 4 of the ATSIC Act seeking an order that the election be declared absolutely void on the following grounds:

1. The names and addresses of voters were required to be
endorsed upon the voter registration card envelopes in
which voters were required to place their ballot papers
in breach of the secret ballot requirements of section
109 of the Aboriginal and Torres Strait Islander
Commission Act.
2. The names of candidates did not appear on the ballot
paper in the order decided by ballot under the provisions
of Rule 61.

The petition came on for hearing on 22 April 1992. The hearing had been deferred pending the conclusion of related proceedings involving the Australian Electoral Commission which, in the event, did not decide the questions that arise under this petition. Those questions are best elucidated in the light of the relevant statutory provisions and ministerial rules.
Statutory Framework

2. The Aboriginal and Torres Strait Islander Commission Act 1989 establishes the Commission by s.6 as a body corporate. Its functions are spelt out in s.7 of the Act and relate generally to the formulation and implementation of programs for the benefit and advancement of Aboriginal persons and Torres Strait Islanders. The Commission is given various powers for that purpose, which it is not necessary to set out here. It consists of twenty people comprising the Chairperson and 19 ministerial appointees. The Chairperson and two other members are to be chosen by the Minister, the remaining 17 members are persons who have been elected to represent various zones. (s.27). Zone representatives are elected by and from members of Regional Councils in the relevant zone.

3. Section 92 establishes elective Regional Councils for each of 60 Regions into which Australia is divided for the purposes of the Act. These Councils have the functions of formulating and revising regional plans for improving the status of Aboriginal and Torres Strait Islander residents of their respective regions, of assisting, advising and co-operating with the Commission and other Commonwealth bodies and State, Territory and local government bodies in the implementation of the regional plan and making proposals for Commission expenditure in relation to the region. The Councils are also to receive and pass on to the Commission the views of the Aboriginal persons and Torres Strait Islanders about the activities in the region of the Commission and other governmental bodies. They are to represent Aboriginal and Torres Strait Islander residents of their respective regions and to act as advocates of their interests. (s.94)

4. Section 100 requires that Regional Council elections be conducted by the Australian Electoral Commission in accordance with the provisions of the Act and "the Regional Council Election Rules in force at the beginning of the election period" (100(b)). A person is entitled to vote at such an election if and only if that person is an Aboriginal person or a Torres Strait Islander (101(a)) and is either on the Commonwealth Electoral Roll with an address within the relevant region or is entitled to vote at the election pursuant to rules made under s.113(3). (101(b)) Voting at Regional Council elections is not compulsory (s.108). A secret ballot is required for by s.109:

"109. Voting at Regional Council elections shall be by
secret ballot."

Voters are to cast votes by marking the ballot paper so as to show the order of their preferences for the candidates (110(1)). The necessary conditions for a formal ballot paper include the requirement that "it does not have upon it any identifying mark" (s.110(2)(c)). An "identifying mark" is defined in sub-s.110(4):

'"identifying mark" means writing or another mark by
which, in the opinion of the authorised electoral
officer, the voter can be identified, but does not
include writing or another mark placed on the ballot
paper (whether or not in contravention of any law) by
a person involved in conducting the election.'

5. The Minister is empowered to make rules not inconsistent with the Act prescribing, inter alia, the manner in which Regional Council elections are to be conducted (s.113(1)(a)). Matters with which the rules may deal include, but are not limited to:

1. The use of an electoral roll or voter cards to establish
an entitlement to vote or to make a record of the persons
who have cast votes (s.113(2)(a)).
2. Confidentiality of voting (s.113(2)(g)).

The Minister is required in making such rules to have regard to the desirability of providing for Regional Council elections to be conducted in a manner similar to the manner in which elections for the Parliament are conducted with a view to increasing "Aboriginal and Torres Strait Islander understanding of and participation in elections for the Parliament" (s.113(6)). The rules are disallowable instruments for the purposes of s.46A of the Acts Interpretation Act 1901 (s.113(8)) and attract the application of a modified version of s.48 of that Act (s.113(9)). They are required therefore to be laid before the House of Representatives and the Senate within 15 sitting days of their gazettal.

6. Section 140 of the ATSIC Act relates to disputed elections and provides:

"The provisions of Schedule 4 apply where there is a
dispute in relation to a Regional Council election or
a zone election."

Schedule 4 to the ATSIC Act which is entitled "DISPUTES ABOUT ELECTORAL MATTERS" provides in cl.2:

"2(1) The validity of any election, or of the
declaration of a poll for an election, may be disputed
by petition addressed to the Court and not otherwise.
(2) The Court has jurisdiction to try election
petitions.
(3) The jurisdiction of the Court to try election
petitions may be exercised by a single judge of the
Court."

Clause 10 sets out powers of the Court in trying an election petition:

"10(1) The powers of the Court in trying an election
petition, include, but are not limited, to the
following powers:
.
.
.
(g) to declare the election absolutely void;
.
.
.
(2) The Court may exercise all or any of its powers
under this clause on such grounds as the Court in its
discretion thinks just and sufficient.
(3) Without limiting the powers conferred by this
clause, it is hereby declared that the power of the
Court to declare that any person who was returned was
not duly elected, or to declare an election absolutely
void, may be exercised on the ground that illegal
practices were committed in connection with the
election."

The Ministerial Rules

7. Regional Council election rules were made under s.113 of the ATSIC Act on 9 July 1990. By virtue of the provisions of sub-s.113(8) of that Act and s.48 of the Acts Interpretation Act 1901, they were required to be laid before each House of Parliament within 15 sitting days of that House after they had been made. They were laid before the House of Representatives but not before the Senate. In the result and by virtue of s.48, they ceased to have effect on the day following the fifteenth sitting day of the Senate after they had been made, namely 16 October 1990. The rules were in force prior to that time and were therefore in force at the beginning of the "election period" which commenced on the day after the Minister fixed the days for polling under sub-s.104(2). By virtue of s.100 of the ATSIC Act, because the rules were in force at the beginning of that period, they applied to the election held in November 1990 even though they had ceased to have any force at that time - Thorpe v. Minister for Aboriginal Affairs [1990] FCA 496; (1990) 97 ALR 543 (F Ct).

8. The order of names of candidates printed on the ballot papers was regulated by rr.60 and 61. Rule 11 provided that two or more candidates for election to the same Regional Council could make a joint request that their names be grouped in the ballot papers or grouped in the ballot papers in a specified order. Rule 60 required that in the printing of ballot papers, the names of candidates by whom grouping requests had been made under r.11 were to be printed in groups on the ballot papers in accordance with their requests and prior to the names of candidates who had not made such requests. The order of the groups in the ballot papers was to be determined by the Regional Returning Officer in accordance with r.61. The order of names of candidates whose names were not included in any group was to be determined by the Regional Returning Officer in accordance with r.61. Rule 61 provided for the order of the names of candidates or of groups in ballot papers to be used in an election to be determined by drawing lots using numbered balls.

9. The conduct of the ballot was prescribed in part by rr.73 to 80 inclusive. Under r.73 where a person attending at a polling booth to vote did not have his or her claim to vote rejected at the outset, the presiding officer was obliged to hand to the person a voter card envelope and ballot paper duly initialled by the presiding officer for the Region in respect of which that person claimed to be enrolled. Rule 74 provided:

"74. The voter must complete the voter card envelope."

The voter was then required by r.77 to retire alone to an unoccupied compartment of the booth and there, in private, to make his or her vote on the ballot paper, fold it so as to conceal his or her vote, insert the ballot paper into the voter card envelope, seal the envelope and present it to an official at the booth known as a liaison officer. The liaison officer was obliged to decide whether "on the balance of probability the person who had presented a voter card envelope was an Aboriginal person or a Torres Strait Islander or not (r.78(1)). He could ask questions for that purpose (r.78(2)). Where the officer decided that a person was not an Aboriginal or a Torres Strait Islander he was required to annotate the voter card envelope to that effect (r.78(3)). The mode of annotation on the envelopes actually used in the election involved signing a box on the reverse of the envelope which bore the printed words "I believe that the voter is neither an Aboriginal person nor a Torres Strait Islander". If the liaison officer decided otherwise there was to be no annotation (r.78(4)). After making the decision the liaison officer was to hand the envelope back to the voter who was then required to deposit it in the ballot box (r.78(5)). A voter whose envelope was annotated by the liaison officer could seek review of the decision by a senior liaison officer (r.79(1)). The request for review used in the Regional Council elections also appeared on the reverse of the envelope and required the voter to complete a printed box in the following terms:

"VOTERS APPEAL
I.....................................................
....
(name of voter)
appeal against the liaison officer's objection that
claims that I am neither an Aboriginal person nor a
Torres Strait Islander.
Signature or mark of voter Date: / / "

The senior liaison officer for the Region was to complete the review of the liaison officer's decision within eight days after the close of the poll (r.79(8)).

10. Detailed provision for the scrutiny of votes was made in r.92. The scrutiny of votes other than declaration votes (for absentee or postal vote purposes) was to be conducted by the Regional Returning Officer or an Assistant Returning Officer at the direction of the Regional Returning Officer in the presence of any scrutineer that chose to attend and any other persons approved by the Regional Returning Officer (r.92(1)). The officer conducting the scrutiny was to place in separate parcels voter card envelopes which had not been properly completed (r.92(2)(a) and (b)), those which had not been annotated by a liaison officer (r.92(2)(c)), those which had been annotated and been the subject of a request for review by a senior liaison officer (r.92(2)(d)) and those which had been annotated and in respect of which no request for review had been made (r.92(2)(e). Where the senior liaison officer upheld a voter's claimed qualification the voter card envelope was to be dealt with as though the annotation had been cancelled (r.92(3)).

11. The process of opening and examining the ballot-papers was described in r.92(4):

"92(4) The officer must in relation to the voter card
envelopes in the parcel referred to in paragraph
(2)(c):
(a) place in one parcel the voter card
envelopes of persons who he or she is
satisfied are enrolled in respect of the
region, and:
(i) without further examining
the voter card envelope
of any voter or
permitting any other
person to do so, withdraw
from each envelope in the
parcel the ballot-paper
contained in the
envelope; and
(ii) without inspecting or
unfolding the ballot-paper
or allowing any
other person to do so,
immediately deposit the
folded ballot-paper in a
ballot-box for further
scrutiny; and
(iii) seal the parcel of
envelopes and endorse on
the parcel the
description of the
contents and the name of
the Region and the date;
and
(b) place in another parcel the voter card
envelopes of persons who he or she is
satisfied are not enrolled in respect of
the region and seal the parcel and endorse
on the parcel the description of the
contents and the name of the region and
the date."

Other sub-rules (5), (6) and (7) followed relating to the acceptance and further scrutiny of ballot papers for voters who were not enrolled for the relevant region by reason of some error or mistake by an officer (92(5)).

12. The voting system embodied in the rules was explained in the course of the Minister's Second Reading Speech on the ATSIC Bill in the House of Representatives on 4 May 1989:

Voting System
One matter which had not been settled at the time of
my statement to the Parliament last month was the
system of voting for regional councils. I made it
clear then that the Government would prefer to have a
system which did not involve the establishment of a
separate role based on race, and that it would explore
certain possibilities with the Australian Electoral
Commission. I can now inform the House that it is
proposed that the electoral system will have the
following features:
Voters fill out a 'voter card' which is
printed on an envelope. The voter will
certify that he or she is an Aboriginal or
Torres Strait Islander person, enrolled on
the Federal Electoral Roll at an address
within the region.
Each polling booth will have at least one
Aboriginal or Torres Strait Islander
Liaison Officer. If the Senior Liaison
Officer is of the view that a person is
not eligible to vote, he or she must note
that fact on the voter-card envelope.
Those people whose eligibility to vote has
been challenged will have seven days to
produce evidence of their Aboriginality.
If they do so their votes will be involved
in the count. Those people whose votes
are not counted will be able to have the
matter heard in the Court of Disputed
Elections.
Completed ballot papers are sealed inside
the voter's 'voter card' envelope, and are
opened only if the vote is not rejected,
and once the count begins.
Postal votes close off six days after the
poll. Postal votes will be witnessed by a
person on the electoral roll in the normal
way. The sealed 'voter card' envelope
will be endorsed by a second person who is
either an Aboriginal or Torres Strait
Islander person who is an office-bearer of
an Aboriginal Corporation active in the
region, or a member of the staff of ATSIC.
The endorsement will certify that the
person voting is in fact an Aboriginal or
Torres Strait Islander. A false
certification of Aboriginality will be an
offence under the electoral rules.
The Australian Electoral Commission will
satisfy itself that all voters are
enrolled at an address which is in the
relevant region.
The vote of any person not on the federal
electoral roll at an address within the
relevant region will be rejected.
The Commission will prepare for each
region a statement showing the particulars
of all cases where voter cards have been
set aside on the grounds that the voter
was not an Aboriginal or Torres Strait
Islander person. The statement will be
available for inspection by interested
parties.
This system will ensure that Aboriginality or Torres
Strait Islander status is open to challenge and
determination on an open and fair basis, and will
avoid the negative factors associated with the
establishment and maintenance of a special public roll
for Aboriginal and Torres Strait Islander people. The
system outlined will be part of the election rules to
be gazetted under part 3 of the Bill, and could be
disallowed by the Parliament."
(Hansard, 4 May 1989, p 1996)

Preparation of Ballot Papers and the Voting Process

13. Evidence of the way in which the order of names on the ballot papers was concluded and of the voting process was given by Adrian McDonald, an officer of the Australian Electoral Commission, who was the Returning Officer for the Perth Regional Council election. Mr McDonald gave undisputed evidence that the determination of the order of candidates on the ballot papers for the Perth Regional Council election was done in accordance with r.61. He was not cross-examined on any aspect of his witness statement and I accept it as evidence of the facts set out in it. He said that upon completion of the draw in accordance with r.61, a paper was prepared headed "Result of Draw for Positions". This set out in a ballot format the order in which groups and individual candidates would appear on the ballot paper. A copy of the sheet signed by him and dated 26 September 1990 was annexed to his statement. It is to be noted that while this sheet showed the order in which names for grouped and ungrouped candidates would appear on the ballot paper, it did not show the final arrangement in columns of the ungrouped candidates. Nevertheless, their names were shown in the order drawn. Copies of the document were made available to the groups and other candidates. In preparing the ballot paper, however, Mr McDonald had regard to s.210(3) of the Commonwealth Electoral Act 1918 relating to the printing of ballot papers for use in Senate elections. That provides:

"(3) The names of candidates not included in a group
shall be printed on the ballot-papers according to
the following rules:
(a) Unless paragraph (b) applies, the names of
the candidates must be printed in a single
column;
(b) If a single column would be longer than
the longest column containing the names of
candidates included in groups, the names
of the candidates may be printed in 2 or
more columns;
(c) If the names of the candidates are printed
in 2 or more columns, none of the columns
may be longer and the longest column
containing the names of candidates
included in groups."

14. The largest group, Group "D", comprised eight candidates. There were 25 ungrouped candidates. To organise these into three groups of 8 would have left the twenty fifth candidate in a single column by himself. The ballot paper was therefore designed with three columns of seven ungrouped candidates and one column of four ungrouped candidates. The order of the candidates was according to the draw. A copy of the ballot paper, which was put into evidence, is annexed to these reasons.

15. It was Mr McDonald's undisputed evidence that the voting process accorded with the Ministerial Rules. In each case a voter was required to complete a voter card envelope pursuant to r.74. The envelope, a specimen of which was put in evidence, contained provision for the insertion of the voter's name, address and date of birth together with declarations that the voter is an Aboriginal person or a Torres Strait Islander, is on the Commonwealth Electoral Roll and has not voted before in the election. A copy of the front and back of the voter card envelope is annexed to these reasons.

16. The rationale for the requirement that persons claiming the right to vote complete a voter card envelope emerges from the rules themselves. There is no formal mechanism under the ATSIC Act or Rules whereby a dispute about a person's status as an Aboriginal or Torres Strait Islander can be resolved before that person's vote is cast. In particular, there is no provision for a roll of persons so qualified. In the absence of a roll, the Act contemplates the use of "voter cards" to establish a person's entitlement to vote. The term "voter card" is not defined. No doubt it can be taken as referring to a system in which a person claiming the right to vote may be required to give details of his or her identity in order to establish that entitlement. The provisions of rr.76 to 80 concerning voter card envelopes, in my opinion, fell within the description of rules relating to voter cards to establish an entitlement to vote or to make a record of persons who have cast votes.

17. In his statement of evidence, Mr McDonald said that at the completion of the Regional Council elections, voter card envelopes containing completed ballot papers for the Perth Regional Council election were brought to the Australian Electoral Commission Office in Claremont where processing of the votes was carried out by fulltime staff of the Commission. There were four such staff members, one of whom was himself. Also present were four scrutineers who represented one of the candidates, Kenneth George Winder. All the envelopes were batched together. While still sealed the information on the voter card envelopes was checked off to identify that each of the voters was enrolled on the Commonwealth Electoral Roll for an address in the Perth Region in accordance with s.101 of the Act. Envelopes that were not intended to be opened were parcelled up and put to one side. The votes contained in those envelopes would not be counted in the election because the person purporting to vote was not on the electoral roll or there were insufficient details on the voter card envelope. Mr McDonald's evidence made no reference to the disposition of any annotated voter envelopes. It may be that there were none and this issue was not pursued.

18. The next step in the procedure as described by him involved the removal of completed ballot papers from each of the voter card envelopes which were to be included in the count. The officers involved each took a batch of 40 to 50 envelopes which were placed face down so that details regarding the identity of the voter could not be seen. Each envelope was then slit open and the folded ballot paper taken out. The ballot papers would be put to one side in their own bundle and the empty voter card envelope put to the other side in a separate bundle. As the officer completed the batch, he or she would then check that the number of empty envelopes equalled that of the number of folded ballot papers. This process was continued until all voter card envelopes included in the electoral count were completed. In the case of the Perth Regional Council election there were 791 formal votes and the task of taking the folded ballot papers from the voter card envelopes took about one hour. It is apparent from the size of the ballot paper and the size of the envelope that it was necessary to fold the ballot paper in order to fit it into the envelope. However, it is also to be noted that where a liaison officer at first instance rejected a voter's claim to qualification the notice of appeal was to be completed on the reverse of the envelope and would include his or her name and signature. Below this there was provision for the determination of the senior liaison officer. It follows that in the case of voters whose qualification was rejected at the first instance and who sought a review successfully, it would have been difficult to open the envelope without seeing the voter's name.

19. The opening of the ballot papers was carried out by the same people who had removed them from the voter card envelopes. The papers were checked to see whether they were formal or informal and the votes then counted. Scrutineers remained until completion of the counting of first preferences.

20. Statements of evidence were also received from Mr Yarran and from two successful candidates, Len Culbong and Spencer Riley who, although named as respondents, supported Mr Yarran's petition. A statement of evidence was also received from a scrutineer, Stanley Headland. All expressed dissatisfaction with the requirement that voters write their names and addresses on the envelopes containing their ballot papers. No-one other than Mr Headland decided not to cast a vote for that reason. Nor did they say that any other voters had decided not to cast a vote because of that requirement.

21. Mr Culbong complained that prior to the election he and other candidates had received from the Australian Electoral Commission the document entitled "Result of Draw for Positions". He claimed that candidates were led to believe by this document that the ballot-papers would be in the same form and accordingly prepared "How to Vote" material on that basis. The different format of the ballot-paper as printed, in his opinion, could have confused voters.
The Ballot Paper Format

22. It is convenient to deal first with the second ground of the petition which complains that the names of the candidates did not appear on the ballot paper in the order decided by ballot under the provisions of r.61. It was submitted that r.61 prescribed the procedure for determining the order of the candidates names. The procedure adopted by Mr McDonald whereby he adjusted the size of the columns of ungrouped candidates was not, it was said, either required or authorised by the rules. It was submitted that this was an irregularity which might have affected the result of the election which for that reason ought to be declared void.

23. In my opinion, however, the objection is misconceived. The order of the candidates' names on the ballot-paper was, on Mr McDonald's undisputed evidence, determined according to the requirements of r.61. The arrangement of ungrouped candidates' names into three columns of seven and one column of four was calculated to avoid putting one or two candidates in a special position by themselves on the paper. The course adopted was fair and practical and in no sense contrary to the election rules. It was perhaps unfortunate that the document entitled "Result of Draw for Positions" was sent out as there was no doubt room for confusion between that and the ballot paper in its final form. In my opinion however, this does not disclose any irregularity. There is no evidence that it had any effect on the election and I am not prepared to infer that it did. In my opinion this ground of the petition fails.
The Secret Ballot - Contentions

24. The petitioner contended that the term "secret ballot" appearing in s.109 of the Aboriginal and Torres Strait Islander Commission Act is to be construed in a non-technical sense and not read down under sub-ss.113(6) and (7). The express requirement for a secret ballot under the ATSIC Act is significant as no such requirement is explicitly mandated in the Commonwealth Electoral Act.

25. Secrecy in an electoral process may not, it was said, be absolute, but the degree of secrecy called for and the system which achieves it must be arrived at by consideration of a variety of factors. These include whether voting is compulsory, the size, composition and sophistication of the electorate, the potential for abuse and the means of remedying such abuse as might occur. Also relevant, it was said, was the importance of the function of the office for which the election was held.

26. Senior counsel for the Commonwealth submitted that the rules do provide for a secret ballot. Their sufficiency in that respect, he said, is not to be assessed by asking whether in theory the ballot might not be secret if a breach of the law occurred. The proper test was whether, if the law were complied with, a secret ballot was achieved. The Court should not take into account the mere theoretical possibility of fraud, illegal conduct or error in deciding whether the ballot was secret. If the system set up by the rules would result in a secret ballot and if the evidence satisfied the court that the system was followed, then it should find that the ballot was secret.
Secret Ballot - History and Meaning

27. The word "ballot" derives from the Italian "ballotta" meaning a round bullet or little ball. Ballotta was used in mid 16th century Italy to designate a system of secret voting using coloured balls, beans or other objects - Fredman - The Australian Ballot: The Story of an American Reform (1968) Mich. State U.P. It also described the objects used in the system. In its original ordinary English meaning it imported the notion of secrecy being variously defined in the Oxford English Dictionary as "a small ball used for secret voting; hence by extension a ticket or paper so used" and "the method or system of secret voting, originally by means of small balls placed in an urn or box; an application of this mode of voting; also the whole number of votes thus recorded". The word "ballot", it has been said, implies secrecy of voting although "sometimes used loosely and perhaps incorrectly - in a more general way as indicating a method of voting by written or printed slips of paper as contrasted with open voting" - The Maple Valley Case (1926) 1 DLR 808 at 813. A drift away from explicit reference to the element of secrecy in its definition is reflected in the Macquarie Dictionary which defines it thus:

"1. A ticket or paper used in voting.
2. The number of votes cast or recorded.
3. Also, secret ballot the system or practice of
secret voting by means of printed or written ballots
or voting machines."

28. The secret ballot was a late development in the modern electoral processes of the Western world. Secret voting had been used for the Comita Centuriata in Rome of the second century BC and in local government from medieval times in England until the Municipal Corporations Act 1835 imposed a uniform requirement for open voting. There is some evidence that a ballot was used for a single parliamentary election in 1577 - Fredman at p 2 note 2. Generally however parliamentary elections in Britain were conducted by poll whereby a voter's name, qualification and vote were recorded in a book open for public inspection. Lord Denning M.R. described the process in Morgan v. Simpson (1974) 3 All ER 722 and said of it at 726:

"Such was the method of election at common law. It was
open. Not by secret ballot. Being open, it was
disgraced by abuses of every kind, especially at
parliamentary elections. Bribery, corruption,
treating, personation, were rampant. These were not
investigated by the courts of law. They were the
subject of petition to Parliament itself."

29. There were many attempts to introduce secret ballot legislation into the British Parliament from 1830 onwards but these were rejected by the House of Lords - The Australian Encyclopaedia (Grolier Society) - 4th Edition (1983) p 4. What were seen as the first statutory provisions for a secret ballot in the common law world were enacted in Victoria in the Electoral Act 1856 (19 Vic No. 12) assented to on 19 March 1856. South Australia followed suit on 2 April 1856, Tasmania in February 1858, New South Wales and Queensland, limited to their Legislative Assemblies, in November 1858 and December 1859 respectively and Western Australia limited to its Legislative Council in 1877. Being something of a novelty at the time it was called "the Australian ballot" in Britain and the United States - Crowley - A Documentary History of Australia Vol. 2 p 324.

30. The Electoral Act 1856 (Vic) did not use the term "secret ballot". Nor was the process such as to afford a guarantee of secrecy. Under s.38 of the Act before delivering a ballot paper to an elector the returning officer or his deputy or the poll clerk was required to "write upon each ballot paper so delivered to such elector the number corresponding to the number set opposite to the elector's name in the electoral roll..." Voting was carried out by striking out the name of a candidate not voted for after which the elector was to "forthwith fold up the (ballot paper) in such manner as will conceal the names of the candidates... and deposit it in the ballot box in the presence of the returning officer or deputy returning officer or poll clerk and scrutineers". Blind or illiterate electors could ask the returning officer or his deputy or the poll clerk to mark their ballot papers for them. The object of numbering the ballot paper and the voter's electoral register number was to prevent personation. This was a difficulty in States where the numbering system was not used. In an explanation of the Victorian system given to the Colonial Secretary in answer to a circular letter sent to the various colonies in 1870, the Premier of Victoria, Sir James McCullough, pointed out that it was an offence to compare a number on the ballot with a number and name on the role when the ballot boxes were opened and so secrecy was not endangered - Fredman at p 10.

31. The Parliamentary Elections Act 1858 (Tas) (21 Vic 32) did not require the voter's number on the ballot paper. It did require the provision of inner rooms at the polling place in which voters should be entitled to complete their ballot papers "in perfect secrecy and with perfect security from interruption" (s.40). The Ballot Act 1877 (WA) (41 Vic No. 15) provided for voting for the Legislative Council to be "by ballot". The elector's name was written on a counterfoil and marked off an electoral register. There was no identifying mark or number on the ballot paper which was to be folded and handed to the returning officer who was to receive it and "without opening the same deposit it in the ballot box".

32. The Australian ballot did not meet with immediate acceptance outside this country. A committee of the House of Commons in 1870 reported that the principal objections against it were that the act of voting was a public duty which should involve public responsibility, that it would lead to hypocrisy and deception, would do little to restrain the practice of treating and would increase bribery by making it more difficult to detect. Nevertheless it was adopted in the United Kingdom by the Ballot Act 1872 (35 and 36 Vic c.33). That Act made provision for the returning officer to note on a counterfoil to the ballot paper the number of the voter on the Register of Voters. In addition there was an express provision, s.4, which imposed a duty on electoral officials at a polling booth to "maintain and aid in maintaining the secrecy of the voting in such station". That section extended the duty to the count:

"Every officer, clerk and agent in attendance at the
counting of the votes shall maintain and aid in
maintaining the secrecy of the voting, and shall not
attempt to ascertain at such counting the number on
the back of any ballot paper, or communicate any
information obtained at such counting as to the
candidate for whom any vote is given in any particular
ballot paper. No person shall directly or indirectly
induce any voter to display his ballot paper after he
shall have marked the same, so as to make known to any
person the name of the candidate for or against whom
he has so marked his vote."

The prohibition against communication of information was not breached unless the offender actually made it known to another person. It was not enough that he merely passed on the means of acquiring such information - Stannanought v. Hazeldine (1879) 4 LR CPD 191 at 195-196.

33. The Commonwealth Electoral Act 1902 (No. 19 of 1902) made no provision for the inclusion of any identifying mark on the ballot paper and set out in s.147 the way in which the ballot paper was to be dealt with:

"147. Upon receipt of the ballot paper the voter shall
without delay-
(a) Retire alone to some unoccupied
compartment of the booth and there, in
private, mark his vote on the ballot paper
in the manner hereafter described:
(b) fold the ballot-paper so as to conceal the
names of the candidates and to clearly
show the initials of the presiding
officer, and exhibit it so folded to the
presiding officer and then forthwith
openly, and without unfolding it, deposit
it in the ballot box:
(c) Quit the booth."

Sight-impaired or illiterate persons could request the presiding officer in the presence of such scrutineers as might be present to mark, fold and deposit the elector's ballot paper. Section 174 defined breaches or neglect of official duty constituting electoral offences. These included:

"The disclosure of any knowledge officially acquired by
any officer touching the vote of any elector."

34. The question whether delegated legislation accords with a statutory prescription for the provision of a secret ballot does not arise in the ordinary run of electoral litigation in Australia as detailed requirements for the conduct of the vote are to be found in the various Electoral Acts of the Commonwealth and State Parliaments. The position is similar in other parts of the common law world. There have, however, been Australian industrial cases in which questions have arisen whether the rules regulating the conduct of union elections complied with statutory requirements for the provision of a secret ballot. In Cameron v. Australian Workers' Union (1959) 2 FLR 45, the Commonwealth Industrial Court considered r.66 of the Australian Workers' Union which required a person recording a vote in a union election to annex to the ballot paper one of eight voting slips alphabetically marked which were attached to the person's membership ticket. It was the invariable practice that the membership number on the ticket also appeared on the face of each voting slip attached to it. The question was whether the rule requiring the attachment of the voting slip complied with the requirements of s.133 of the Act.

35. To a degree the practice complained of was analogous to the procedure in the Electoral Act 1856 (Vic) which had been generally regarded as introducing a secret ballot. That procedure was not deleted from the law of Victoria until 1938. It did not, however, appear in the Commonwealth Electoral Act 1902 or its successors. In Cameron Spicer C.J. suggested, at p 64, that it might be that:

"... by the beginning of the 20th Century the
conception of a secret ballot had evolved into one in
which absolute secrecy was preserved as far as the
ballot paper was concerned and that this concept
outweighed all other considerations."

His Honour concluded that the secret ballot provision which had been introduced into s.133 of the Conciliation and Arbitration Act 1904 in 1951 required that nothing appear on the ballot paper capable of identifying the voter. The extent to which the practice of attaching a voter's number to the ballot paper could operate to destroy secrecy was greater than in a parliamentary election. The electorate was smaller and the chance of the voter's identity being ascertained from his number was greater. His Honour concluded that the conduct of the election had not complied with the requirements of s.133. Dunphy J. also thought the practice inconsistent with the requirement for secrecy but held that the objectionable part of the system, which was the numbering of the voting slips, was not the result of a provision of the rules of the organisation. The proceedings were brought and could only be brought against the provisions of a rule. Morgan J. adopted similar reasoning (at 94-95).

36. In Hibbert v. Federated Clerks Union of Australia [1983] FCA 162; (1983) 76 FLR 372, Evatt J. conducted an inquiry under the Conciliation and Arbitration Act 1904 into the election for certain officers in the South Australian Branch of the Federated Clerks' Union of Australia. A Branch rule provided for the numbering of ballot papers and their endorsement with a statement to the effect that the numbering was for the purpose of preventing any irregularity. There was no suggestion of any provision under the rules or any practice which would link the number on the ballot paper to the identity of any voter. Nevertheless, his Honour held that prima facie the numbering of ballot papers in any fashion would result in a ballot being not a secret ballot (at p 403). After referring to Cameron v. Australian Workers' Union (supra) he said that any numbering of ballot papers would mean that any ballot required in a particular election would not be a secret ballot within the meaning of s.133 of the Act. His Honour further observed at p 404:

"It is not to the point, as was the case in the subject
election, that no record was kept by the returning
officer or those assisting him of the number on the
ballot-paper sent to a particular voter or that the
ballot-papers had in fact been shuffled before being
placed in envelopes for forwarding to members."

37. The question of the adequacy of balloting procedures to observe secrecy arose more recently in a case somewhat analogous to the present in Re Federated Liquor and Allied Industries Employees Union of Australia, New South Wales Branch; Ex parte Pullen (1990) 34 IR 264. This was an election inquiry conducted by Gray J. Envelopes containing ballot papers which were to be posted to the Australian Electoral Commission in larger postal envelopes had provision on their exteriors for the insertion of the names and signatures of voters. The envelopes were also numbered serially. The possibility existed that a person opening the envelope would know the identity of the voter in question and how he voted by reference to the ballot paper and the name or number on the envelope. In the election then under inquiry, no breach of secrecy had actually occurred. The envelopes were slit open by a machine and separated from the ballot papers immediately in such a way that no person could have ascertained the identity of anyone who had completed a ballot paper. After referring to Cameron and Hibbert his Honour said that the governing principle was that "there should be no means of ascertaining the way in which a vote may be cast and that the voter should be aware of this". He held that the ballot was not secret. He added that the problem could be overcome by transferring to the external envelope the provision for name, signature and serial number. His Honour would also have required an assurance to be printed on the ballot paper itself that the process of counting the votes would eliminate any possibility that the voter's identity could be discovered.
The Validity of the Regional Council Election Rules

38. The Perth Regional Council election has already been the subject of two applications in this Court and one appeal to the Full Federal Court. The proceedings have arisen out of attempts by those interested in disputing the election to have the Minister or the Australian Electoral Commission take responsibility for litigating the issue of the secrecy of the ballot. In Blurton v. Minister for Aboriginal Affairs [1991] FCA 204; (1991) 101 ALR 350, the applicants applied for a review of the decision of the Minister not to act upon their request to refer to the Federal Court the question whether the requirement under s.109 for a secret ballot was breached by the Ministerial rules. That application was heard on 12 and 24 April 1991 and dismissed on 17 May 1991 on the basis that the Minister's power under cl. 17 of Schedule 4 of the Act, to refer to this Court questions respecting the qualifications of members of the Regional Councils or vacancies on the councils did not extend to the kind of reference which had been there suggested.

39. Review was also sought by a number of applicants of the refusal by the Australian Electoral Commission to exercise its right under cl.5(1) of Schedule 4 to file its own petition disputing the election. The Aboriginal Legal Service on behalf of various persons including Mr Yarran, the present petitioner, had asked the Commission to bring a petition on the basis that the election rules did not comply with the secret ballot requirements. The Commission refused contending that the rules were valid. The application for review of that refusal was based on the proposition that the Commission had erred in law in so concluding. It was accepted by the applicants in that action that no order could then be made directing the Commission to file a petition as the time limited for so doing had expired. They did however seek declaratory orders from Olney J. that rr.73, 74 and 76 were invalid. In dismissing the application on 16 August 1991, his Honour found that the rules did provide for a secret ballot. "Brahim and Ors v. The Commonwealth Electoral Commissioner (unrep Fed Ct, 16.8.91, Olney J.)" The applicants appealed to the Full Court which dismissed the appeal on 20 November 1991. The Full Court took the view that his Honour should not have been asked to reach any conclusion on the question whether the rules provided for a secret ballot. Lee J., with whom Jenkinson J. agreed, regarded the validity of the rules as a matter to be determined on the hearing of this petition. Davies J. said that the finding of Olney J. should not be regarded as determining the issue and that the judge constituting the Court on the hearing of the petition should not feel bound by it. His Honour added that it was arguable that the rules did not provide for the secret ballot which Parliament prescribed. Lee J. observed that at the point votes are prepared for scrutiny in the manner provided by r.92, the risk of identification of the voter may be real particularly given that under a system of voluntary voting the recorded votes might not be large and an inadequately folded ballot paper might reveal the voter's intentions when the paper was removed from the voter card envelope.

40. Although the issue of the validity of the rules is to be determined in these proceedings, it is appropriate that I have regard to the reasons of Olney J. as well as the observations made by the Full Court. After referring to the decisions in Cameron, Hibbert and Pullen, Olney J. said that they were not easily reconciled. He distinguished the decision of Gray J. in Pullen on the basis that it had to be read in its industrial context. Union elections had not always been free of malpractice and the requirement for secret ballots first introduced in the Conciliation and Arbitration Act in 1951 was designed to meet the particular needs of industrial regulation. The Regional Council elections were different. Parliament had, he said, elected not to make provision for a separate roll for aboriginal voters. That, with respect, was not quite accurate. The ATSIC Act in s.113(2)(a) provided that electoral rules might be made with respect to the use of an electoral roll or voter cards to establish an entitlement to vote. The choice of voting system was made within the framework of the Minister's rules. His Honour thought that it was of some significance in construing the parliamentary intention with respect to the secret ballot requirement that the Minister, in his second reading speech, "outlined in detail" the system of voting proposed and subsequently adopted. And it is certainly the case that the Minister made explicit reference to the placement by voters of completed ballot papers inside their completed voter card envelopes. He did not however, draw attention to the scrutiny procedure or the fact that ballot papers would be removed by electoral officials directly from envelopes bearing the names and addresses of the voters.

41. The history of legislative and judicial approaches to the requirement for secrecy in voting demonstrates variations in understanding of the necessary elements of a secret ballot. The different approaches to very similar voting arrangements adopted by Gray J. in Pullen's case and Olney J. in Brahim suggest that contemporary views of what is necessary may differ according to the circumstances of the case. Accepting that there is a range of possible voting systems which would answer the description "secret ballot", the question is what are the minimum necessary conditions to be met before a voting system can be so characterised. It must be answered by reference to the purpose of the secret ballot. In relation to parliamentary, local government and union elections, that purpose is to encourage voters to exercise a choice for their preferred candidate free from the possibility that any social, economic, physical or other sanctions may be applied to them for voting or not voting in a particular way. Where the vote cast cannot be known, promises to vote in a specific way cannot be verified. In the absence of information about the vote cast, threats and inducements have little or diminished force.

42. Having regard to the purpose of the secret ballot, the mechanism adopted must enable the elector to cast a vote in private, that is to say without disclosing it to any other person, and must enable the anonymity of that vote to be protected. This may be achieved by methods which would be described as physical or mechanical. They may be supported by the imposition upon electoral officials of appropriate statutory duties of non-disclosure. The question whether a given mix of techniques constitutes a secret ballot involves an assessment of the extent to which it achieves the objectives of a private vote and protection of anonymity. What is clear, in my opinion, is that despite the use in Victoria in 1856 of a system under which the voter's electoral number appeared on the ballot paper, that would not be accepted as a secret ballot today. Physical isolation of the voter and a system for separating or keeping separate the voter's identity and the record of the vote cast are essential elements of the modern understanding of the secret ballot. The provisions under which blind, illiterate or incapacitated electors cast their votes with the assistance of an electoral official is a compromise adapted to the particular class of case. It would not be understood as a secret ballot if applied to the wider population of electors.

43. The system of voting adopted by the Regional Council Election Rules provides for physical isolation of the elector at the point at which the vote is cast. It does not, however, keep separate the record of the vote cast from information about the identity of the voter. The ballot paper is sealed in an envelope bearing the voter's name and address. Separation occurs when the ballot paper is taken out of the envelope for scrutiny. In the meantime, however, the elector is required, after having cast a vote, to leave in the hands of a third party information about his or her identity and the vote that was cast. In my opinion and with great respect to the contrary view expressed by Olney J., this is not a secret ballot. The voter is entitled to the security provided by keeping separate the record of the vote and the record of his or her identity. It might be argued that that requirement could be met by placing the ballot paper in an unmarked sealed envelope which could then be placed in an envelope bearing the elector's name. That method, however, is less than satisfactory if only because of the perceptions it might engender. I would be prepared to accept that in conjunction with an appropriate system for separation of voter identity and voting decision, it might amount to a secret ballot. It is, however, neither necessary nor desirable that I express any concluded view on hypothetical alternatives to the system under consideration.

44. The real problem in this case derives from the absence of an electoral roll bearing the name of Aborigines and Torres Strait Islanders who are entitled to vote in the Regional Council elections. Such a roll would enable a dispute as to the qualifications of any elector to be investigated and decided well in advance of the election itself. It would not require qualification to vote to be determined at the booth. While the concern that such a roll would list people on racial criteria is understandable, the fact is that these are the criteria for voting for and election to the Regional Councils. Alternatively, a system may be devised in which an elector claiming the right to vote must first satisfy a liaison officer of qualification. When the claimed qualification is not accepted, no vote could be cast unless and until a review process had been found in favour of the elector. But the vote, when cast, would not be associated with information about the elector's identity.

45. No doubt there are practical difficulties attaching to these alternatives. Whatever the case in that regard, I am satisfied that the system whereby a voter is required to place his or her ballot paper directly into an envelope bearing on the outside his or her name is not a secret ballot within the meaning of the Act. In so concluding, I accept that a similar system operates in the case of postal and absentee votes at parliamentary elections throughout Australia. But that system is a facility provided to persons otherwise unable to discharge their obligation to vote at a polling booth on the election day. While there are various statutory protections directed to the privacy of the votes in that case, it would not, in my opinion, constitute a secret ballot. For these reasons I am of the opinion that the Regional Council Election Rules do not comply with the Act and that the election was not conducted in accordance with s.109.
The Court's Discretion

46. The powers of the Court on the return of an election petition are prescribed by cl.10 of the Fourth Schedule to the Act. They include, but are not limited to, the enumerated powers which in turn include the powers:

"(g) To declare the election absolutely void;
(h) To dismiss or uphold the petition in whole or in
part;
.
.
.
(j) To make any order, or give any direction, that
the Court thinks is necessary or convenient for the
purpose of giving effect to any declaration or other
decision of the Court in the proceedings;"

By cl.10(2) the Court is empowered to exercise all or any of these powers "on such grounds as the Court in its discretion thinks just and sufficient".

47. This is not a case which involves the commission of any illegal practice by any person. Where such a finding is made the Court is not to declare any person not duly elected or any election void unless it is satisfied that the result of the election was likely to be affected and that it is just for one or other of such declarations to be made (cl.12). Nor does the proviso that immaterial errors are not to vitiate the result of any election apply to this case. It is really not a question of "error" in the conduct of the election which was according to the ministerial rules.

48. The fact is that the election was not conducted according to law. The failure to provide a secret ballot system was a serious departure from the statutory requirement. I accept that there was no evidence that any voter was deterred from casting a vote by reason of the system used apart from the evidence of Mr Headland in that regard. In the circumstances however, it is my opinion that the election was not conducted according to the statutory requirements in a fundamental respect and must be declared void. I propose to make a declaration that the Regional Election Rules in force at the time did not provide for voting by secret ballot as required by s.109 and that the election is void. I will allow liberty to the parties to apply for further orders within fourteen (14) days.