Mulcahy v Payne [1920] HCA 30; (1920) 27 CLR 470 (13 May 1920)

HIGH COURT OF AUSTRALIA

Mulcahy Petitioner; and Payne and Others Respondents.

H C of A

13 May 1920

Knox C.J., Gavan Duffy and Rich JJ.

Lodge, for the petitioner.

Dobson, for the Electoral Officer.

Hodgman, for the respondent Payne.

The judgment of the Court, which was read by Knox C.J., was as follows:—

May 13

Knox C.J.,

Gavan Duffy and Rich JJ.

The substantial question raised by this special case is whether the petitioner, Senator Edward Mulcahy, or the respondent, Senator Herbert James Mockford Payne, should have been declared elected to fill a periodical vacancy within the meaning of the Senate Elections Act 1903, as a result of the election of Senators for the State of Tasmania held in the month of December 1919. A preliminary question was raised whether the petition was filed within the time prescribed by the Commonwealth Electoral Act 1918-1919, sec. 185 (e.)

The relevant facts are as follows:—At the election in December 1919 there were four vacancies to be filled, three of these being "periodical" and one "casual." There were ten candidates duly nominated, including Messrs. Millen, Foster and Payne, and the petitioner. The writ for the election was issued by the Governor of Tasmania in the form prescribed by the Senate Elections Act 1903 on 3rd November 1919; the polling took place on 13th December 1919. The result of the polling was that no candidate received an absolute majority of first preference votes, and, the counting of votes having proceeded in the manner prescribed by the Commonwealth Electoral Act, Senator Millen was elected to the first vacancy with 33,247 votes against 26,105 votes cast for Mr. O'Keefe, the last candidate to be excluded. To the second vacancy Senator Foster was elected with 33,173 votes against 26,179 votes cast for Mr. O'Keefe, the last candidate to be excluded. Senator Payne was next elected with 30,277 votes against 29,075 votes cast for Mr. O'Keefe, the last candidate to be excluded; and the petitioner was elected to the fourth vacancy with 33,102 votes against 26,250 votes cast for Mr. O'Keefe, the last candidate to be excluded. The first preference votes cast for the elected candidates were Millen 10,766, Foster 10,693, Payne 4,678, Mulcahy 4,457. On 7th January 1920 the Electoral Officer indorsed on the writ his certificate and return that Senators Millen, Foster and Payne had been duly elected as the three Senators from and after 1st July 1920 (i.e., to fill the periodical vacancies), and that the petitioner had been duly elected as a Senator from and after the date of his election (i.e., to fill the casual vacancy); and on the same day he forwarded the writ so indorsed to the Chief Secretary of the State of Tasmania for transmission to the Governor. On 8th January the Chief Secretary wrote to the Private Secretary to the Governor forwarding with his letter the writ indorsed as above mentioned. On 13th January the Governor of Tasmania signed the indorsement as having been seen by him, and, apparently on the same day, returned the writ to the Chief Secretary, who on the same day returned it to the Governor for transmission to the Governor-General. There is nothing to show that the writ came to the knowledge of the Governor or into his possession before 13th January. The statistical return of the result of the polling shows that on every count up to and including that on which Senator Payne was elected he received a greater number of votes than the petitioner, the conclusion being that so long as Senator Payne and the petitioner were in competition the electors who desired the election of the former in preference to the latter were in a majority.

In these circumstances we are of opinion, first, that the question raised by question I of the special case, namely, whether the petition was filed within the time prescribed by sec. 185 (e) of the Commonwealth Electoral Act 1918-1919 ought to be answered in the affirmative. In ascertaining the date of the return of the writ, the material point of time to consider is that at which the writ indorsed by the returning officer comes into the possession of the person authorized by law to act upon it, so that he may act upon it, and the return is not complete until that time (see In re Poole Election Petition[1]; Rogers on Elections, 17th ed. (revised), vol. ii., at p. 142). By the Commonwealth Electoral Act 1918-1919, sec. 141 (1) (b), the Electoral Officer is required to return the writ, when indorsed, to the Governor of the State in which it was issued, the Governor being required by sec. 7 of the Constitution to certify to the Governor-General the names of the Senators chosen for the State. In our opinion it is clear that the return of the writ is not complete until the indorsed writ has come into the possession of the Governor of the State so that he may act on it, and, as the proper inference to be drawn from the facts is that the writ did not come into the possession of the Governor of Tasmania before 13th January, we must hold on the facts stated that that is the date of the return of the writ. Consequently the petition was filed within forty days after the return of the writ, and the point taken on sec. 185 (e) of the Act fails.

We come then to the substantial matter in dispute, viz., which of the two contestants, Senator Payne and the petitioner, is entitled to be declared elected to the "periodical" vacancy. The answer to this question depends on the application of sec. 9 of the Senate Elections Act 1903 to the result of the polling at the election now under consideration. The section runs thus:—"(1) Those of the elected candidates, to the number of the periodical vacancies, who receive the greatest number of votes shall be elected to fill the periodical vacancies. (2) In the event of an equality of votes between two or more elected candidates, not all of whom can be elected to fill the periodical vacancies, the Commonwealth Electoral Officer for the State shall give a casting vote for the purpose of deciding which of them shall be elected to fill the periodical vacancies. (3) The elected candidates who are not elected to fill the periodical vacancies shall be elected to fill the casual vacancies." When that Act became law the Commonwealth Electoral Act 1902 prescribed a different system of election from that now in force. Under the earlier system each voter was entitled to record one vote for each of a number of candidates corresponding with the number of vacancies to be filled. If, for instance, there were three vacancies to be filled, each elector was entitled to vote for three candidates, giving no more than one vote to each candidate for whom he voted. Every vote given by any elector had the same value, and the result was ascertained by adding up the votes cast for each candidate, the three candidates who obtained the greatest number of votes being elected. It was to an election conducted in this manner that sec. 9 of the Senate Elections Act 1903 was originally intended to apply, and so long as that system remained in force no difficulty would arise in applying its provisions literally construed. Subsequently it was thought that the system prescribed by the Commonwealth Electoral Act 1902 was not calculated to ensure the election of those candidates favoured by a majority of the electors, and by the Commonwealth Electoral Act 1918 (subsequently amended by the Commonwealth Electoral Act 1919) the system under which the election of 1919 was held was introduced. Under the new system the cardinal idea is that before any candidate shall be elected he shall have received an absolute majority of the votes cast at the election; the method adopted for giving effect to this idea being, in the case of a Senate election, that each elector shall vote for not less than twice the number of candidates to be elected plus one, if there be so many candidates, and, if not, then for all the candidates, in the order of his preference for the candidates for whom he votes, placing the number 1 opposite the name of the candidate for whom he votes as his first preference and the numbers 2, 3, 4, and so on, opposite the names of the other candidates in the order of his preference. Under this system, however many candidates are to be elected, if one of them obtains an absolute majority of first preference votes he is elected, notwithstanding that other candidates might have a greater number of votes if second and third preference votes were included with the first preference votes in the count (see sec. 135 (5) (b) of the Commonwealth Electoral Act 1918-1919). But, if no candidate obtains an absolute majority of first preference votes, the scrutiny proceeds in the manner prescribed by sec. 135 (5) (d) and (e), under which the second and subsequent preference votes are taken into account in order to arrive at a result which will give one candidate an absolute majority of votes counted according to the method prescribed by the section. It is apparent that this system differs radically from that prescribed by the Act of 1902, first, in the number of votes to be cast by an elector, and, secondly, in the fact that the value of the votes cast by each elector is not necessarily equal, the second and subsequent preference votes being contingent in their nature, and so of inferior value to the first preference vote.

It follows from what we have said that the provisions of sec. 9 of the Senate Elections Act 1903 have now to be applied to a system of voting which differs radically from that in force when that Act was passed, and it is not surprising, under these circumstances, that difficulties should arise in applying those provisions. We cannot but think that when the new system was introduced by the Commonwealth Electoral Act 1918-1919, Parliament overlooked the necessity of amending the provisions of sec. 9 of the Senate Elections Act 1903 in order to make those provisions appropriate to the new system of voting. Under these circumstances we refrain from expressing any opinion as to the proper method of applying the provisions of sec. 9 of the Senate Elections Act 1903, except so far as is necessary to enable us to decide whether the petitioner ought to be declared elected to fill a periodical vacancy, this being the only question which it is necessary for us to decide on the case stated. We proceed to consider this question, the solution of which depends on the answer to be given to the further question: Was the petitioner one of the three elected candidates who obtained the greatest number of votes at the election? or, there being four elected candidates and three periodical vacancies, the question may be stated thus: Did the petitioner obtain at the election a greater number of votes than some other elected candidate?

In whichever way the question is stated, the answer must, in our opinion, be in the negative on any reasonable construction of sec. 9 of the Senate Elections Act 1903 as applied to the system now in force for the election of Senators. Several views were pressed upon us during the argument. First, it was said that the word "votes" in sec. 9 meant votes similar in nature to those recorded under the system in force in 1903, and that first preference votes now answered that description. If this construction be adopted, the petitioner fails; for each of the other elected candidates obtained a greater number of first preference votes than he. Secondly, it was contended that sec. 9 of the Act of 1903 may be applied as referring to the number of votes obtained by each elected candidate at the moment of his election in competition with all candidates not previously elected. If this be so, it was said that in the present case Senator Millen received the greatest number of votes in competition with all candidates, Senator Foster received the greatest number of votes in competition with all candidates except Senator Millen, Senator Payne received the greatest number of votes in competition with all candidates except Senators Millen and Foster, and Senator Mulcahy received the greatest number of votes in competition with the candidates not already elected. These were the elected candidates, and it is said that, as the number of votes counted for Senator Mulcahy when he was elected exceeds the number counted for Senator Payne when he was elected, Senator Mulcahy was one of the elected candidates who received the greatest number of votes within the meaning of the Senate Elections Act 1903. But this method of comparison is fallacious, because the votes counted for Senator Mulcahy at the moment of his election are votes given to him in competition with Mr. O'Keefe, and not in competition with or in preference to those candidates already elected, and do not necessarily indicate any preference for him as against them.

A third possible way of applying the phrase "elected candidates who receive the greatest number of votes" in sec. 9 is by treating it as equivalent to "the elected candidates in the order of their election." On this construction the petitioner fails, because Senator Payne was elected before him.

It was further contended that the way to ascertain which elected candidates obtained the greatest number of votes is to count the whole of the votes cast for each elected candidate, whether first, second, third, or subsequent preference votes, attributing an equal value to each vote. The first answer to this contention is that the treatment of first, second, and subsequent preference votes as all of equal value is opposed to the scheme of the Act. For example, if A obtains 1,000 first preference votes, B having the second preference votes on those papers, B would, on this construction, be put on the same footing as A with respect to these 1,000 votes, though each of the voters who cast them voted for A in preference to B. A further answer is that the Commonwealth Electoral Act does not require or authorize any count of this kind, nor any count of any kind after the point at which the necessary number of candidates has received each in his turn an absolute majority of votes.

For these reasons we are of opinion that the questions should be answered: (1) Yes; (2) No; (3) No; (4) No.

Questions answered accordingly.

Solicitors for the petitioner, Roberts & Allport.

Solicitors for the respondent Payne, Page, Hodgman & Seager.

Solicitors for the Electoral Officer, Dobson, Allport & Mitchell.

[1] L.R. 9 C.P., 435.