Case: Hedges v Burchell [1913] HCA 56 ; (1913) 17 CLR 327
Outcome: considered
The origins of this provision can be traced to the decision of Barton ACJ, sitting as the Court of Disputed Returns, in Hedges v Burchell [1913] HCA 56 ; (1913) 17 CLR 327. In that case an unsuccessful candidate for election to the House of Representatives disputed the validity of the successful candidate's election. He did so on the basis that there had been duplicate voting and that other improper practices had been engaged in. He sought an order that he be entitled to inspect and take extracts from the electoral rolls. Those rolls were in the possession of the Chief Electoral Officer, who was not a party to the proceeding. In the absence of a provision such as s 360(1)(iii) , the petitioner relied on the general provisions in the High Court Rules relating to discovery. Barton ACJ held that discovery could not be ordered against a person who was not a party to the proceeding. He concluded his reasons (at 334) with the observation that: "The result is that no section of the Commonwealth Electoral Act , nor any rule under that Act , has been discovered which can be held to give this Court of Disputed Returns the power to make such an order as is sought on behalf of the petitioner. It may be that such a power is highly necessary, and that the ends of justice are frustrated by its absence. It seems strange that in a proceeding which involves the question of the proper conduct of an election, when information is sought which exist only in the rolls and other documents in the custody of public officers, a petitioner is not entitled to the discovery that is here sought. But the remedy is in the hands of the legislature, not those of the Court." 10 In 1922 the Commonwealth Electoral Act was amended to insert a new s 189(1)(iia) which, apart from punctuation, was in the same form as the present s 360(1)(iii): see Commonwealth Electoral Act 1922 (Cth) ("1922 Amending Act") s 23. The second reading speech of the Attorney-General records that the purpose of the amendment was to give the Court the power which Barton ACJ had held in Hedges was lacking: House of Representatives, Debates , Session 1922, Vol C, p 2268. No explanation was given for including the words in parenthesis. Section 189 was renumbered in 1984 as s 360 (see s 5 Commonwealth Electoral Legislation Amendment Act 1984 ). Paragraph (iia) became paragraph (iii) of subsection (1). 11 The 1922 Amending Act also added a new s 189A to the Act: see s 24. This new section provided for a Court of Disputed Returns to determine whether a postal or absentee ballot-paper had been marked by a person who was not entitled to vote at the election and, if so, to reject the ballot-paper. In order for this to happen it was necessary that the Court be able to determine which particular ballot-paper had been completed by the person concerned. This could be done because of the scrutiny procedure in relation to absentee voting and postal voting that was imposed by the regulations made under the Act. 12 An elector was permitted to vote as an absent voter at any polling place within the State for which the elector was enrolled, subject to the arrangements at the polling place (see Reg 46 Electoral and Referendum Regulations 1919 as amended by Statutory Rules 1919, Nos 229, 260, 262 and 276 ("the 1919 Regulations ")), if the elector answered certain questions to the satisfaction of the Presiding Officer (see Regs 48 and 49 of the 1919 Regulations and s 115 Commonwealth Electoral Act 1918 ) and the elector made a declaration in a prescribed form (see Reg 49 the 1919 Regulations ; Form 26). 23 The petitioner contends that the Court's power to make the order sought is to be found in s 281(3) of the Act. That subsection expressly empowers the Court to consider reserved ballot-papers and, it is said, it is implicit that the Court can require a party to the proceeding to make copies of those ballot-papers available to the other parties. The power conferred by s 281(3), it was submitted, is a free standing source of power which is not subject to the restriction contained in s 360(1)(iii). The petitioner stressed that the forerunner of s 281(3) was included in the Act well before the precursor of s 360(1)(iii) was incorporated. The petitioner submitted that, prior to 1922 (when the forerunner of s 360(i)(iii) was inserted into the Act), there could have been no objection to the Court ordering discovery of ballot-papers to a party to a proceeding before the Court of Disputed Returns. It was submitted that the petitioner in Hedges was unsuccessful only because the Chief Electoral Officer, against whom discovery orders were sought, was not a party to the proceeding. 24 Although the petitioner's argument has a natural attraction to those accustomed to the conduct of litigation according to rules of civil procedure, I am persuaded that I should accept the Commission's submissions. Although the forerunner of s 360(1)(iii) was added to the Act in which the forerunner of s 281(3) already appeared, it was enacted to provide the Court with power which it was found not to have in a case in which the person against whom discovery was sought was not a party. True it is that the lack of power to order that access be provided to documents was found in a case in which those in whose custody the documents were held were not parties to the proceeding. The remedial legislation, however, had application whether or not the Australian Electoral Commission had been joined as a party. The restrictions imposed by the words in parenthesis were made applicable whenever a party (including a petitioner) sought access to relevant documents. 25 I am unable to accept that s 281(3) provides an independent source of power which enables the Court to require the electoral authorities to provide parties with copies of disputed ballot-papers. It confers no express power on the Court to do so. 28 In the present case the parties had resort to judicial pronouncements, legislative history and Second Reading speeches in order to identify the purpose which s 360(1)(iii) was intended to serve. The petitioner seeks to identify the mischief to which s 360(1)(iii) is directed as being the absence of a power in the Court of Disputed Returns to require a non-party to discover documents which are relevant to issues raised by a petition. This submission is said to be supported by the statement in the Attorney-General's Second Reading speech in 1922 which suggests that the paragraph was inserted in the Act in order to overcome the procedural difficulty identified by Barton ACJ in Hedges . Section 360(1)(iii) does not, however, simply provide for normal discovery rules to apply to cases before Courts of Disputed Returns. It contains a series of restrictions: leave to inspect and take extracts must first be obtained from the Court; the inspection must take place in the presence of a prescribed officer; and the making of any extract must also occur in the presence of a such an officer. There is, in addition, the limitation which is central to the present debate, namely, that leave to inspect and take extracts from ballot-papers may not be given. 29 Nowhere in the secondary materials, to which I was referred, is there any express explanation of the reason for the imposition of this or any of the other limitations on the Court's power. The Commission advanced the suggestion that the proscription in relation to ballot-papers was necessary in order to protect the secrecy of the ballot. If parties had access to the numbered ballot-papers they might be able to discover how a particular elector had cast his or her vote. This is a plausible suggestion. Unfortunately there is nothing in the Attorney-General's speech in 1922 to support it. Nor is there any explanation, in the Minister for the Interior's 1965 Second Reading speech, of why it was necessary to retain the limitation in s 360(1)(iii) when the repeal of s 189A was justified as a measure to protect such secrecy. The Commission speculates that s 360(1)(iii) might have been left unaltered in order to preserve secrecy in circumstances in which a voter, contrary to instructions published in polling places, wrote something on a ballot-paper which might serve to identify him or her. Any such annotation would render the ballot informal: see s 268(1)(d) of the Act. It is, however, unlikely that the words in parenthesis in s 360(1)(iii) were retained to protect the secrecy of the ballots cast by persons who were perfectly happy to associate their names with their voting intentions. 30 The petitioner, for his part, proffers an alternative explanation which is that, in the absence of the restriction on a party's access to ballot-papers, a party could seek access to every ballot-paper thereby undermining the policy reflected in s 281(3), that, in the normal case, the attention of a Court of Disputed Returns should be confined to reserved ballot-papers. No support for this theory is to be found in the secondary materials. Moreover, the restriction is not necessary in order to prevent a party having access to all the ballot-papers cast in a particular election. Were application to be made by a party for access to all papers, the Court could refuse leave if it were persuaded that any enquiry should be confined to the reserved ballot-papers. 36 Kean v Kerby was decided in 1920. The decision in Hedges had, seven years earlier, established that access to electoral documents could not be obtained by means of an order for discovery directed to electoral officers who were not party to the proceeding. This did not mean that a petitioner could not obtain access to the ballot-papers by other means. In Hedges , Barton ACJ was at pains to stress (at 334) that the application before him was not directed to securing the attendance of an electoral official to produce documents, thereby suggesting that the petitioner might have been successful had he sought the issue of a subpoena duces tecum . No doubt conscious of the ruling in Hedges , both the petitioner and the respondent, in Kean v Kerby, obtained subpoenas directed to the Divisional Returning Officer for the relevant electoral division. The petitioner's subpoena required the production to the Court of "the parcels of ballot papers containing thirty five ballot papers reserved for the decision of the Commonwealth Electoral Officer for the State of Victoria and the ballot papers examined, counted and dealt with by [the Returning Officer] under section 135 subsection 3 of the Commonwealth Electoral Act 1918-1919 ." The respondent's subpoena required the production of the official roll of electors for the division and all documents relating to postal and absentee voting by certain named electors.