Hayne
J
18.
election, admit any evidence of the way in which the elector intended to
vote in the election."
76
Mr Wang and Mr Mead, and the respondents to the AEC petition other
than Senator Ludlam, all submitted that the electors who had submitted the lost
ballot papers were not prevented from voting; the AEC and Senator Ludlam
submitted that they were. The central difference upon which the submissions
hinged was whether "voting" should be understood as complete at the point an
elector put his or her ballot paper into the ballot-box or should instead be
understood as extending to the point where the ballot paper was considered in the
scrutiny conducted to ascertain the result of the polling.
77
It may readily be accepted that an elector would, "on account of
the ... error of, or omission by, any officer", be "prevented from voting in [the]
election" if an officer prevented the elector receiving 49 a ballot paper to which the
elector was entitled, or prevented the elector depositing 50 the ballot paper in the
ballot-box. But does the notion of "prevented from voting" stop at the point
where an elector has done all that he or she can do to submit a ballot paper for
consideration in the poll?
78
The preferable construction of the Act is that the reference in the proviso
to s 365 to an elector being prevented by error or omission of an officer from
voting in any election includes a case such as this where 1,370 electors were
prevented, through official error, from having their ballot papers be the subject of
the determinative scrutiny (in this case the re-count). There are several reasons
to prefer this construction.
79
First, this construction of the provision follows as a matter of ordinary
language. As the first, third and fourth respondents to each of the petitions
rightly pointed out, to "vote" means to express or signify a choice. But contrary
to the submissions of those parties (and others who adopted their submissions),
"voting", when used in the collocation "prevented from voting", extends to taking
account of the expression or signification of choice. That is, ask whether an
elector has voted and the answer will direct attention to whether that person has
done those acts which, as far as the elector can, express or signify the elector's
choice to those who will decide the outcome of the poll. Hence, as the first, third
and fourth respondents rightly pointed out, many of the provisions of the Act use
the word "voting" or cognate expressions in a way which directs attention only to
the conduct of an elector. So, for example, when s 220(c) forbids admission of
persons to a polling booth after six o'clock "for the purpose of voting", the
provision is directed only to what the elector would do, if admitted. But ask
49
s 231(1).
50
s 233(1)(b)(i).