Hayne
J
19.
whether an elector has been prevented by the error or omission of an officer from
voting and the answer must look not only to what the elector has or has not done
but also to what the officer has done. And what the officer has done is to be
judged according to whether the expression or signification of choice has become
available for consideration in determining the outcome of the poll.
80
Second, the preferred construction of the provision better reflects the
constitutional purposes pursued by the Act than the competing construction
would. As noted earlier, s 7 of the Constitution provides that "[t]he Senate shall
be composed of senators for each State, directly chosen by the people of the
State". Direct choice by the people is effected only by taking account of the
choices expressed by "the people". If some of the choices expressed by the
people are not taken into account in the determinative scrutiny, there is at least
the possibility that the result determined does not give effect to the choice which
the people sought to make.
81
"Choice" bears 51 two faces. It refers to an elector's act of choosing. (And
it is here that those parties who denied that electors had been prevented from
voting would end the analysis.) But it also refers to those who are chosen.
Direct choice by the people requires that the lawful expression of every voter's
choice is taken into account in determining who has been chosen.
82
Reading the expression "prevented from voting" in the proviso to s 365 as
encompassing cases such as the present reflects this understanding of the
constitutional notion of direct choice. It does so by requiring the Court to
determine whether official error affected the result of the election without regard
to evidence of the voting intentions of relevant electors. More particularly, it
requires the Court to decide whether the errors or omissions of an officer
preventing consideration of the choices made by certain electors (regardless of
what those choices were) were sufficiently numerous in the poll as a whole to
have affected the outcome. By contrast, reading the proviso to s 365 as speaking
only to cases where electors were prevented from depositing a ballot paper in the
ballot-box would confine attention to only some of the cases in which, on
account of official error, choices expressed by the people are not considered.
And once the step has been taken (as it is in s 365) to require determination of the
effect of official error on the result of an election without evidence about how
electors intended to vote, its operation should not be confined to some cases
where persons are denied the effective expression of their choice.
51
cf The Oxford English Dictionary, 2nd ed (1989), vol III at 151-152, "choice",
meanings 1a and 5a.