Hayne
J
21.
amendments which were made to what has now become s 365 hinged about the
expression "prevented from voting".
87
In 1875, Lord Coleridge CJ had spoken 58 of circumstances in which "an
election is to be declared void by the common law applicable to parliamentary
elections" as including cases where there was "no real electing at all" (original
emphasis). His Lordship gave 59 examples of there being "no real electing at all"
where "a majority of the electors were proved to have been prevented from
recording their votes effectively according to their own preference" by any of
several specified causes. Those causes included 60 cases of "fraudulent counting
of votes or false declaration of numbers by a returning officer". And, of course,
those cases are examples which depended upon the relevant electors having
submitted their votes. That is, they are examples of cases in which, despite
electors having submitted their votes, "a majority of the electors were proved to
have been prevented from recording their votes effectively" 61 (emphasis added).
They were cases where (a majority of) electors were prevented from voting
effectively by official error because the votes they submitted were not considered
in determining the result of the election.
88
The first, third and fourth respondents to each of the petitions submitted
that the reasons of Lord Coleridge CJ should be understood as distinguishing
between "prevented from voting" and "prevented from voting effectively".
Those respondents submitted that the former expression was used to refer only to
cases in which an elector was not permitted to vote and that this, and this alone,
was the meaning of the expression "prevented from voting" established by the
decision.
89
There are two answers to these arguments. First, I greatly doubt that the
reading of the reasons of Lord Coleridge CJ proffered by the first, third and
fourth respondents is the preferable reading of what was written. Second, and
more significantly, it is not how those reasons were understood in subsequent
decisions of this Court. Those decisions, particularly Chanter v Blackwood 62 and
Bridge v Bowen 63, treated Woodward v Sarsons as establishing that an elector is
58
Woodward v Sarsons (1875) LR 10 CP 733 at 743.
59
(1875) LR 10 CP 733 at 743.
60
(1875) LR 10 CP 733 at 744.
61
(1875) LR 10 CP 733 at 743.
62
(1904) 1 CLR 39 at 58-59 per Griffith CJ.
63
(1916) 21 CLR 582 at 605-607 per Barton J, 616-618 per Isaacs J (Gavan Duffy
and Rich JJ agreeing); [1916] HCA 38.