Hirsch v Phillips [1904] HCA 4; (1904) 1 CLR 132 (12 March 1904)

HIGH COURT OF AUSTRALIA

Maximilian Hirsch Petitioner; and Pharez Phillips Respondent.

H C of A

Wimmera Election Petition. On Reference from the Court of Disputed Returns.

12 March 1904

Griffith, C.J., Barton and O'Connor, JJ.

Mitchell, for the petitioner.

MacCay, for the respondent.

MacCay on the merits.

Mitchell, in reply.

Griffith, CJ delivered the judgment of the Court.

12th March

Griffith, C.J.

The point raised on this petition is one of some difficulty, and we feel ourselves very much indebted to counsel on both sides for the assistance they have given us.

With respect to the technical point as to the form of the petition, it should be said that the word "believe" is not a proper word to use in a petition. It should set out facts. The petitioner is not called upon to verify the petition by his oath, but he should, of course, only allege what he believes he will be able to prove. The insertion of the word believe, however, does not in our opinion vitiate the petition.

The main question is, who may vote on an adjourned polling day? Sec. 153 of the Electoral Act provides that "If from any cause any polling booth at a polling place is not opened on polling day the Returning Officer or the presiding officer may adjourn the polling for a period not to exceed twenty-one days, and shall forthwith give public notice of the adjournment." It is contended for the petitioner that on an adjourned polling day any elector whose name is on the roll may vote—those enrolled for the particular polling place, of course, but also any other electors on the roll on making the declaration in the Form Q. It is contended for the respondent that on that day nobody can vote except electors on the roll for that particular polling place, or, at most, electors who, not being on the roll for that polling place, attended there on the original polling day and were deprived of the franchise by its not being open. It is pointed out that, if the view of the petitioner is accepted, the result would be that if one polling place is by accident not open on the original polling day, there would, in effect, be two entirely separate polls for the whole electorate. For, when the adjourned polling day comes, each candidate will know exactly how many votes have been cast for him, and will collect all the voters he can who have not already voted, and bring them to this one polling place where an adjournment was necessary. So that, practically, there would be a second poll. In view of the provision that all elections for the House of Representatives shall be held on one day, it is plain that the legislature thought that such a thing would be very undesirable. It is not as if this were new legislation. It was the practice in many of the States for a long time, and still is in one, if not most, of them, that all elections shall take place on the same day. Sec. 153 was evidently inserted for the purpose of affording to persons who had accidentally lost their right to vote, the opportunity of exercising the franchise. It is said, however, that this view is consistent with the literal terms of sec. 139, which provides that "Any elector may vote at the polling place for which he is enrolled, or if he is absent from the polling place for which he is enrolled may vote at any other polling place for the same Division in an election for the House of Representatives, if he makes and signs before the presiding officer a declaration in the Form Q in the Schedule." It is contended, on the other hand, that, adopting that construction, no meaning is given to the words "absent from the polling place," because a man who is present at one polling place is necessarily absent from another, and the section would have exactly the same meaning if these words had been omitted. That is to say, it might run "any elector may vote at the polling place for which he is enrolled, or at any other polling place for the same division if," &c. That seems, at first sight, a weighty argument. But on examination it will be seen that sec. 139 is a section which prescribes the conditions under which the right to vote may be exercised. It is one of a group of sections dealing with the polling on the duly appointed polling day, which is to be one day for the whole Commonwealth, and it is plain that every provision of that group is primâ facie intended to refer to that day. Now, to read a section as specifically applying to the thing specifically dealt with, is not to insert words. The whole of these sections are dealing primarily with the polling day, and the words "on the polling day" might be read into nearly every one of them without altering in any way their meaning. Sec. 139 prescribes what persons may vote on the polling day. One class of persons who have a right to vote consists of electors present at the polling place for which they are enrolled. They may vote at that polling place. Then, persons absent from the polling place for which they are enrolled, who may vote at any other polling place on making a declaration in the Form Q. The fact of absence or presence is necessarily ascertained on that day. For the purposes of the matter now under consideration the first class may be left out altogether. We are only dealing with persons who claim to vote on making a declaration in the Form Q. The material words so far as they apply to this class are: "Any elector ... if he is absent from the polling place for which he is enrolled may vote at any other polling place for the same division if he makes and signs before the presiding officer a declaration in the Form Q in the Schedule." There are thus two classes of persons who may vote on that day. Persons who are enrolled for any polling place may vote there, if present; of course, they cannot vote there if they are not present. Persons who are absent on that day from the polling place for which they are enrolled may vote anywhere else on making the declaration in the Form Q. Those are the two classes. If the word "absent" is treated merely as referring to absence from the place without any reference to time, it would be meaningless. A man must be absent from one place in order to be present at another. But if the word "absent" is taken with reference to the polling day, the section operates to confer on a voter who is on that day absent from the polling place for which he is enrolled a right to vote at any other polling place, which right, having been conferred, remains in existence so long as he is entitled to exercise it. It is quite clear that sec. 153 was not intended either to confer upon any elector a new right to vote which he had not on the original polling day, or to deprive any elector of any right which he had on the original polling day. The test, therefore, as to these persons is, whether on the original polling day they were absent from the polling place for which they were enrolled. If they were, they were and remained entitled to vote at another polling place. There are no words to take that right away from them. If sec. 153 is construed as only giving a fresh opportunity to electors who were actually deprived of it on that original polling day, this singular consequence would follow: That electors enrolled for the polling place at which the adjourned poll is taken, who were present at that place on the original polling day, and did not then claim or intend to vote, would not be allowed to vote at the adjourned poll. But it is clear that at the adjourned poll all electors enrolled for the polling place at which it is held are entitled to vote there, whether they were or were not present on the original day, and whether they then did or did not claim to vote. Any other construction would involve an enquiry in every instance as to how many had been actually deprived of their right to vote on the original polling day, a thing practically incapable of proof. But if all the electors enrolled for that polling place are entitled to vote, whether they had intended to vote on the original polling day or not, how can a distinction be drawn between that class of persons and others who were on that day equally entitled to vote there? The one case is quite as incapable of enquiry or proof as the other. Let us take a case as an illustration. Suppose a polling place near a stream, which on the polling day is separated by an impassable torrent from the residence of the presiding officer. Nobody takes the trouble to go to the polling place, because everybody knows that the presiding officer will not be there. The test of actual deprival cannot be applied. It is not persons who were deprived of the right to vote on the original polling day who may vote on the adjourned polling day, but persons who, if the polling place had been open on the original polling day, would have been entitled to vote there. That construction gives full effect to every word of sec. 139.

It does, however, give rise to a practical difficulty, because the Returning Officer on the adjourned polling day is not entitled to do more than ask voters the questions prescribed by sec. 141, and the answers to them are conclusive. If an elector not enrolled for the polling place in respect of which the poll is adjourned wants to vote, he need only make a declaration in the Form Q, and the Returning Officer is bound to receive his vote. If he is not entitled to vote, still the Returning Officer cannot make any further inquiry, and consequently this Court must make the inquiry. Therefore if a man, not entitled to vote, because he was not absent on the original polling day from the place for which he was enrolled, came and insisted that his vote should be received by the Returning Officer, his vote would be bad, and a sufficient number of such votes might vitiate the election. But in this case that difficulty does not arise as to elections in class (c)—that is, persons not alleged to have been absent on the original polling day from the polling place for which they were enrolled—because all the votes were refused; and though the Returning Officer was technically wrong in refusing to allow them to vote, we cannot hold that the election was thereby vitiated. It follows from the reasons I have given, that electors in classes (a) and (b)—that is, persons who had attended at Ni Ni on the original polling day, being then enrolled for other polling places, and persons who on the original polling day were absent from the polling places for which they were enrolled—were entitled to vote, and if this right was denied to a number of persons so entitled sufficient to turn the scale, the petitioner would be entitled to have the election set aside. It is desirable to point out that paragraph 17 of the petition contains immaterial allegations as to both classes (a) and (b). The only material fact is that certain electors of each class were on 16th December absent from the polling place for which they were enrolled. The mode in which they intended to vote is, of course, not the subject of inquiry before this tribunal.

Mitchell.—The Court does not say what "absent from the polling place" means.

Griffith, C.J.—That is a question of fact, which in some cases is very difficult, in others very easy, to answer. We think those words mean "absent from the locality of the polling place." What are the boundaries of any particular locality is a question to which it is impossible to give a general answer.

The costs of the reference will be in the discretion of the Judge who hears the petition.

Questions answered accordingly.

Solicitors, for the petitioner, a'Beckett & Chomley, Melbourne.

Solicitors, for the respondent, McCay & Thwaites, Castlemaine.