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Tuesday, 15 March 1904

Mr DEAKIN - With the consent of my honorable colleague, I desire to say that I have obtained from the Attorney-General's Department a statement in reference to the report of the judgment. It reads as follows : -

The Argus quotes the following passage from the Chief Justice's judgment : - "At the adjourned poll the returning officer was not entitled to do more than put the prescribed questions, and if an elector not enrolled for the polling place in question made the declaration in Form' Q,' the returning officer was bound to receive his vote."

That extract, severed from its context, gives a misleading idea as to the effect of the Chief Justice's judgment. The Argus omits to quote the passage immediately following (as reported yesterday in its own report of the decision), as follows : - " If the man was not entitled to vote there, the vote was bad. But the returning officer could not make the inquiries; that would be for the court to inquire into. If there were a sufficient number of such voters not entitled to vote, the election might have been vitiated. In the present case no such difficulty arose, because that class of persons had their votes refused. The returning officer, in refusing them, was technically wrong, but the court could not disturb the election because the returning officer did something technically wrong, but which led to right results."

There were only 95 names on the Ni-Ni roll, and Mr. Hirsch was nearly 200 votes behind, so that the polling of all those voters could not have altered the result of the election.

The Attorney-General gave no opinion on the subject, being out of Victoria when the question arose.

No opinion to the effect stated was given at all.

The returning officer having asked the Electoral Office for advice as to whether he should accept " Q " declarations at the adjourned poll, an opinion was obtained from the Secretary, AttorneyGeneral's Department, who advised that though, in his opinion, only persons enrolled for Ni-Ni would be entitled to vote, yet persons making the declaration " Q " might be allowed to vote, their votes being taken at a different booth and kept separate, in order that, in the event of a petition, the Court of Disputed Returns might be able to deal with the matter.

It will thus be seen that, if the course advised by the secretary to the Attorney-General's Department had been followed, there would have been no question in either case. All the votes would have been taken, and the doubtful ones would have been set aside, so that the Court of Disputed Returns could have settled the matter without delay. That that course was not pursued was due not to any action on the part of the Department, but to the choice made by the returning officer himself, in the undoubted exercise of his own discretion.

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