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Disputed Returns and Qualifications Committee - Report on Petition of Joseph Vardon against the choice by the Parliament of South Australia of Hon. J. V. O'Loghlin as a Senator for that State


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1 9 0 7 .

(SECOND SESSION.)

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA.

T ZEE IE S E N A T E .

R E P 0 R T OF TH E

COMMITTEE OF DISPUTED RETURNS AND QUALIFICATIONS UPON THE

PETITION OF JOSEPH VARDON

AGAINST THE CHOICE BY THE HOUSES OF THE PARLIAM ENT OF SOUTH AUSTRALIA OF

THE HONORABLE JAMES VINCENT O’LOGHLIN

AS A SENATOR FOR THE STATE OF SOUTH A U ST R A L IA ;

T O G E T H E R W IT H T H E

MINUTES OF PROCEEDINGS OF THE COMMITTEE

A N D

A P P E N D I C E S .

Brought up by the Chairman, read and ordered to be printed, 9th October, 100?.

P rin te d and P ublished for the G o v er n m e n t of th e C om m onw ealth of A u st ra l ia by J . K e m p , A cting G overnm ent P rin te r for the S ta te of V ictoria.

S. 2 . — Ρ .Π 0 4 4 .

EXTRACTED F ROM THE JOURNALS OF THE SENATE.

FRIDAY, \iTH JULY, 1907.

8. CouiMITTEE OF DISPUTED RETURNS AN.D QuALIFICATIONS.-The President read and laid on the Table his vVarrant appointing the Committee of Disputed Returns and Qualifications, as follows:-Pursuant to Standing Order No. 38, I he!·eby appoint the follow ing Senators to be "The Committee of Disputed Returns and Qualifications" :-Senators de Largie, Dobson, Macfarlane, Col. Neild, Sir J . H.

Symon, Turley, and Walker. Given under my hand this 5th clay of July, 1907.

FRIDAY, 23Rn AUGUST, 1907.

A. J. GOULD, President.

10. PETITION OF .JosEPH VARDON AGAINST THE CnorcE OF THE HoNORABLE JAMES VINCENT O'LoGHLIN, AS A SENATOR FOR TI-m STATE OF SoUT H AUS'l'RALIA.-The President laid on the Table a Petition from Joseph Vardon, of Victoria-avenue, Millswoo

to hold the place of a Senator for the said State of South Australi a may be null and void,

and that it may be further declared that the said the H onorable J ames Vincent U'Loghlin has n ot

been duly chosen or elected as a Senator or to hold the place of a Senator for the said State of South

Australia, and that the said the Honorable James Vincent O'Loghlin has no right or title to sit, vote, or act as a Senator, and tha t the seat of one Senator for the said State of Sonth Australia is vacant. And further praying that the said the Honorable ,James Vincent O'Loghlin may be ordered to pay to petitioner the reason­ able costs and expenses of petitioner in relation thereto. And further praying t hat he may have such further or other r eli ef in the premises as the nature of the case may require, And the said Petition was read by the Acting Clerk. The Vice-President of the Executive Council (Senator Best) moved-That t he Petition be referred t o the Committee

of D isputed l{eturns and Qualifications. Question- put and passed.

THURSDAY, 29TH AUGUST. 1907.

4. ColUIITTEE OF DISPUTED RETURNS AND QuALIFICATIONs-PowER TO SEND FOR PERSoNs AND PAPERS, AND TO SIT DUlliNG OF THE SENATE-Senator Sir Josiah Symon moved, without notice-(1) That the Committee of Disputed Returns and Qualifications have power to send for persons, papers, a nd records in connexion with the inquiry into t he Petition of J oseph Vardon against the ch oice of the

Honorable James Vincent O'Loghlin as a Senator for the State of South A ustralia. Question-put and passed. (2) That the Standing Orders be suspended in order to enable the Committee of Disputed Returns and Qualifications, if necessa ry, to sit during the sittings of the Senate. Question-put and passed, there being an absolute majority of the whole number of Senators present, and no

clisientient voice.

WEDNESDAY, 9TH OCTOBER, 1907.

14. OF DISPU TED RET UR)IS AXD QuA UFICATJO)IS: REPORT.-Senator Sir J. H. Symon, Chairman, brought up the R eport of the Committee of Disputed Returns and Qualifications upon t he P etit ion of Joseph Vardon again st the c hoice by the Houses of the P arlit•ment of ;:)outh Australia of the Honorable James Vincent O'Loghlin as a Senator for t he State of South Australia, together with the Minutes of Proceedings and Appendices. The report was read by the Acting Clerk, and is as follows :-

* .,.. * * * *

Ordered- That the R eport be printed and taken into consideration by the Senate on Wednesday next.

PETITION OF JOSEPH VARDON.

SEN ATE IN THE PARLIAMENT OF THE TO THE HONORABLE THE COMMONWEALTH OF AUSTRALIA.

THE PETITION OF JOSEPH VARDON, OF VICTORIA AVENUE, MILLS WOOO. IN THE STATE OF 'SOUTH AUSTRALIA, IN THE COMYIONWEALTH OF AUSTRALIA, PRINTER, HUMBLY COJYJ:PLAINING. 3HEWETH-

l. That your p etitioner is and from the est>tblishment of t he Commonwealth h"s been continuously qualified and ent itled to vote at the e'ection of members of the H onorable the Senate and the Honse of R epresentatives in the P arliament of t he Commonwealth of Australia, and the name of yonr petitioner is on the E lec toral Roll for the Commonwealth Electoral lJivisio n of f:Iindm arsh , wh ich is in t he said "tate of South Anstrali>t.

2. That on t he day of December, 1906, the places of t hree Senators for the St>tt e of South in the

P arliamen t of the Gommonwealth of Anst.rali>t (to wit, Sir ,Josiah H enry Symon, Rir Ri chard Ch,tffey Baker, and the H onorab le Thomas l'layford), hecame vacant by the expiration of the term of service for which t hey were respectively elected Senators. 3. That on the 8th day of 1906, His Excellency Sir George Ruthven L e Hunte, Knight Commander of

the Most Distinguished Order of St. Michael and Sain t George, Governor in and O"e r the said State and its de· p endencies, caused to be issued a W rit for the election of three Senators for the said State to serve in the Parliament of t he said Co mmonwerrlth from and after the F irst clay of January, 1907, and in such Writ dat es were appointed as follows:-

1. For nomination, the Seventeent h day of November, 1906. 2. For taking t he Poll in the event of the election bein g con tested , the T,,·e!fth day of December, 1906. 3. For the R eturn of the Writ on or before the Sevent h clay i:lf January, 1907.

4. That there were thereupon duly nominated for election as Senat ors for the said State the following persons, namely:-REGINALD POLE BLUNDELL, DAVID MORLEY CHARLESTON,

DUGALD AUGUSTUS CROSBY, THOMAS PLAYFOfW, WILLIAM RUSSELL, JOSIAH HENRY SYMON,

JOSEPH VARDON (your petitioner) .

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5. That polling in and for the said election was thereupon had on the 12th day of December, 1906. 6. That on the 28th day of December, 1906 , His Excellency the said Governor did , by Proclamation published in the Sout h Australian Government Ga.zette on t he 29t h clay of December. 1906, extend the time for returning the aforesaid Writ from the Seventh day of Jantia ry, 1907 , to the Seventh clay of F ebr nary, 1907.

7. That on the 8th day of January, 1907, the Commonwealth E lectoral Offi ce r for the said Sta te did by indorse· ment under his hand certify on t he aforesaid original Writ the names of the candidates elec ted, namely :-JOSIAH HE NRY SYMON, WILLIAM RUSS ELL,

JOSE PH VARDON (your petitioner),

and did return the said \Vrit to the said Governor, and the said Governor did thereup on cer tify to His :Excellency the Governor-General of the Commonwealth t he names of the sai d Josiah llenry Symon, "William Russell, and Joseph V ardon as the names of Senators chosen for t he said State. 8. That on t he 15th day of February, 1907, the said Regin ald P ole Blundell did fi le his petition in the High Court

of Australia , as the Court of Di sputed Returns, praying as follows: -(a) That the whole of the Ballot P apers be reviewed a nd recou nted. (b) That it be declared that Jose ph Vardon was not duly elected . (c) That Dugald Augustus Crosby, or in the alternati,·e t hat the said Reginald P ole Blundell, be declared

elected .

Or in the alternative-(d) That the election of 3enators for the said be declared absolutely void.

9. That the said petition came on for hearing in the said High Court of Australia as t he Court of Di sputed Returns before His Honour Mr. Justice Barton, on the 3rcl, 4th, 27th, 28th, 29th, 30th, and 31st days of May, 1907, and there­ upon on the 3 1st day of May, 1907, the saicl High Court did declare that the eleC\ ion of M em bers of the l" enate for the State of So uth Australia held on the 12G h day of December, 190G, was a bs olutely void in respect of the return of Joseph

V ar don (yom petitioner). 10 . That no Writ has since the said 8th day of November, 1906, bee n iss ued for a ny election of a Senator for the State of South Aust.ralia , a r.d no such election has been held since the said 12th clay of Oe cember, 1906. ll. That on Mol1'1ay, th e 8th day of July, 1907, yonr pet.iticner did deli\'er to His Excellency t he said Governor a letter in the words and figures following, t hat is to say :

"To

"srr,

"Adelaide, "8th July, 1907.

"His Excellency Sir George Ruthven L e Hunte, Knight Commander of the Most Distinguished Order of Saint Michael and Sain t George, Governor in and O\'er t he State of South Australia and its Dependencies in the Commonwealt h of Australia .

"I, Joseph Vardon, of Victoria-avenue, Mills wood, in t he State of South A nstralia, printer, being duly enrolled upon the Commonwealth electoral roll for the division of Hind marsh, in the said State, a• an elector of the said State, qualified to vote at elections in the said State of senators therefor, respectfully approach Your Excellency as Governor of t he State of South Australia on the subject of the Order elated

t he 7th clay of June, 1907, of the High Court of Australia, sitting as a Court of Disputed Returns,

declaring that t he election of Members of the Senate for t he said State on the 12th day of December 1906, was absolutely void in respect of t he return of me, J oseph Vardon, and as to the course to

pursued to fi ll the vacan cy existing in the representation of the said State in the Senate of t he P arlia­ ment of the Commonwealth of Australia. I humbly 'uggest t o You r Excell ency a' such Governor that t h e proper means ,f doing this is by the iss ue of a Writ by Yo ur Excell ency as such Governor

under the Commonwealth Constitution, and that it is the duty of Your E xcellency as Governor of the said State to cause such \Vrit to be issued . ·

A 2

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" I a m aware that Your Excellency has by cl

:-: bu t h Australia. that you ha,·e been notifi ed that the llig h Comt of Australia, h

above refcrre<;l to, a vacan cy hn s ha ppened in the r epresentation of the State in the Senate of the

aml t hat \'our is ad ,·ise(i that by such vaca,ncy jlftvin.g l.1appen ed the p lace of a

h as become before the expiration of his term within the rn eani11 g of Section ].5 of the

Constitut ion of the Connnonwcn,l th of Australia, a,n d tha,t su clt place must be filled by the Houses of P pectfnlly represent to Your Excellency tlmt the sa, id Section 15 c

d uly elected and can lHn·e no relation to a void election.

"I therefore as such elector as aforesaid respectfully r equire Yom Excellency to cause " \Yrit to be issued for the election of a Sen

"Your Excellency's obedient "JOS. VARDON . "

1:2. That His Excellency the sa,id Governor did thereupon on the said 8th day of July, 1907, d eliver t o the said Joseph Yat·don, in .reply " letter signed by him, which letter is in the words and figu r es follci.wing, t hat is to say:-

,.

''Government E;ousc, Adelaide, "8th July, 1907.

"Sir, . . . . ' '.I have the )lon <;>r t o acknowledge the receipt of yonr letter of this da y' s date requiring me to issue a .. Writ . for t.l)e electio.n of '' Senator for this S tate in consequence of the High Co.u.rt hadng decided that

. the electi9n for tbe Senate held i n this Stat e on 12t h December, 1906, was absolutely void in r espect of your election. ·. . ,"Upon r eceipt o£ an intim

occurred in the r epresentation o£ t his State in the Senate, I requested the St,tte Parliament, by l\'l essage llated 2nd . July, _1907, to proceed to an elect ion of a Semttor under the Commonwealth Constitution .A ct . "Un til I am other wise advised I must decline to issue" Writ for a, fresh election as r equired by yon. "I lmve the honor to be, Sir, ·

"Your o.bedient Serv1tn t, "GEORGE R. L E HUNTE,

".J oscph Vardon, E squ ire." "Governor of South Australia.

13. Tlmt on the lOth day o£ July, 1907, yout· pctitiol)er Wt'Otc to the Honorable Richard Butler,

"In a nswer to your enquiry, my position in regard to th.e.Senate election is this-­ " I am willing t o act <\S a if dply an,d prop eJ;ly elect ed >es one.

" I am advised that the p rop

" I must letwe the responsibility of acting 11-ot ''oti'!-g on your wi sh to nominate me in Parliament en tirely to yourself. If you do so, and the is. I al)llawfull y made a Senator, I will act a ccording ly.

" Yours faithfully,

Butler, Esqui re, !\i.P. " "JOS. V AHDON.

A part from t he said letter your did not a1_ 1y t ime or in 1tny form or manner consent to be chosen Scn a,t_or by

t he· I;I ouses· of- Pa,( h a ment of the sa1d State, or to Jus b em g nom mated or proposed to be so chosen. U. That on Thursday, the said lith day of July, 1907, the Legislative Council ancl the House of Assembly of t ho s1t icl Parliament of t he said :State helcl a joint sitting, at which sittin g both the said Houses snt and voted, together , and at t he said joint sitting the members of the said two Houses (your p etition er and the H onora ble James Vincent O'Loghl.in.

of Hawthorn, near Adelaide, in t h e said :'tate, having been there first severally proposed to be chosen) did

choose t he said James Vincent O'Loghlin to h old t h e place the1}_ vac<}n t in the representation of South Austmlia in tho Senate of the Commonwea.lth. 15. That His Excellency the said Govomor of 1 he said Sta,,te Soutl1 A,ustra,lia afterwa,rds certified in writing to His Excellency thcGovernor-Geneml of the Com!nOn\\:ealth of Australi a, that name of the Se1mtor so chosen by the s;tid two Houses of P

\ ¥ednesday, the 17th clay o£ ,July, 1907, the slticl Certificate in wr iting of the. said GovE;rnor of the sa,id State w

of the said St

declt nt before t he expiration of the term of his service wi t hin

t he meaning of Section 15 of the Constitution of t h e Commonwealth t hat the said Houses of. p,.rJiament of the s

18. T h >et your· petitioner furthe r respectfully suhtnits that the said choice or election by t he said Ho uses of P:trliap1ent of t he said Sttte of Austmlia is aml ought to be d ecl

Y our p eti t ioner therefore humbly prays t hat the choice of election by t he said Houses of P

tha t t h e sa,id t he Honorable .James Vincen t O'Loghlin has n o r ight or title to Stt, vo t8, or act a s a Sc na, tor in your Hononcble H ouse, ant! t h e "cat of one Senator fo r t he sa, itl .'it iy to your petitioner t he re(l.sona.bl e costs and ex]wnses of yo ur petition er in relation hereto. And y otll' petition er further prays that. h e nmy hu. vc such furt-her .or other re li ef in the pren!iscs as t he na,t.nrc of t he e>tse. may recpt ire .

.i\nd yotu· p etition er will as in d uty hound c,·e r pray. etc. Signed by the petitioner , J oseph V<>rtlon, at Adelaide, in t h e Stu.te of South A us Ll'alia, t o is ::>2nd d

JOS.

o:; rE-rJTliJx .

I c:c rt ify t ha,t this l'etitio n w ;t> lorlgetl with me this 23rd d ;ty of Aug ust, l907, ltt lmlf-p

,., I •

ll E P 0 R 'r.

. . r.

YOUR CoMMITTEE, having considered the petition of Joseph Vardon against the choice hv the Houses of Parliament of the State of South .

643 )

Australia of the Honorable J. V. O'Loghlin as a Senator for the said .._ : State, and again st the right and title of the Honorable J. V. O'Loghlin to sit, vote, and act as such Senntor, and pray in g thnt it may be

dechred that the seat of one Senator foi· the saicl State is vacant, have the honour to report as follow s :-1. The facts and do cuments stated in the Petition were admitted. The Acting Clerk of Parliaments produced the do cuments in the custody of the Scuate, and the Senntc Journals bearing upon the matter. N o other evidence was called. 10

2. At the end of 1906 the places of three Senators fo r South Australi a became · vacant by effiuxion of time, and on the 12th December, 1906, an election took place to fi II these vacancies, :mel three persons---one of th em bein g th e petitioner, Joseph Y nnlon-we:re retumccl as duly elected. · . .

3. On the 31 st May, 1907, His H onourMr. Justice Barton,sittingflsthe Court of Dispnted Returns, declared the snicl elec tion absolutely void in r espect of the return of the said J osepb Vardon. Thi. decision (s ee Section 201 of the Crmmon­ UiNtlth Electoral Act 1902) is final and conclusiv e, without appea l, and it is not to be

questioned in any way. Your Committee therefore find and report that, so far as regarded the petitioner, t he said elec tion-that is, the choice of the p eople, on the 2_ 0 1 :2th December, 1906-was void, and that no one was on that occfl sion chosen by the · people to fill the place of Seuator to which tho petitioner Joseph Vard on wa s supposed to lmv e been elected. T n th e words of Mr. Justice Barton during· certain mandamus

proceedin gs b efore tl1 o Hig h Court, · quoted to your Committee, '' ·within the Acts there was no election at all." The High Court a.lso in their unanimous judg ment upon tlte mandamus application said , " The onl y rclevant ·fac:t is thflt the attempted -c hoice of one of the three Senatot•s . who onght under Section 7_ to . have been

directly chosen by the people was ineffectual'. " · . .

4. On the 11th July, 1907, there being a vacancy, th e H ouses of Parliament of So uth Anstralia, assuming it to be a vacancy within the meaning of Section 15 of the 30 Constitution, and assuming to act under .that section , m et together and chose the , 1 lonorahle J. V. O'Logltlin to lt olcl the place then vaca11t in the r ep resentation of Sot.tth Australia in the Senate. lf the vac::j,n cy 'vas not a casual vacancy-that is

one within tlt c meaning of Section 15 , th e choice of the said Houses of Parliament wn s not nuthorized or va.lid. It appears from t l1 e correspondence set ou t by Mr. Yardon in th e petition that ho wH s nominated, thoug lt under protest from to th e State Parliament. Jt is

clear, however, that Yardon took up the sn n1e position then as now and maintained that tlt e Parliament " 'as not empowered to choose a Senator u nd er t l1 e circum­ i'tn nces, and thnt t he proper course 1rns a new popular election so that th e people 40 mi g ht exercise the ch oice of whi ch tlt oy ltad IJ ee n deprived. vVe do not tltink

tl te f1H:t of Mr. Vardon's nomination cnn be sn.icl to wain t lt e ohjcetiuns to the· cltoi ce hy t he State Parliantent, ot· to mak e thllt ch oice Ya lid , or to prejudice th o rig lt t of th e people of t l1 e to be allowed to directly choose a ac cordin g

t o tlt e Cons titution. l t hecame t lt C' n tlto duty of your Connuittre, in obedience to th o re ference hy the Senate, to ascerta in nnd report wl 1ether th e Ya c:n ncy 1ras ouc \ri tltin th e meaning of Section 1 :) - in otlt er \\' Ords, wheth er a v:H·mH:y in tlte representatio n of a State in the :::lenatc due to the people for any xe;ls nn, and through no fault ot th eir O\rn , not _

lta\·in g excrci:-:ed _ t lt ci r cl.10icc, ca n b e.· tiliNl by the State of Parli:11u ent. .... 0

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5. The following grounds and considerations have influenced your Committee in arriving at their conclusion :-A. It is provided by Section 7 of the Constitution that Senators shall be "directly chosen by the people of each State."

B. Section 15, which is equally a part of the Constitution, provides for casual vacancies, to which the State Houses of Parliament or the Governor, with the advice of the State Executive, if the Houses are not in session, may appoint.

C. Choice by the people appears to your Committee to be the basis of the Constitution of the Senate, and until the people have had an opportunity to exercise, and have effectively exercised their choice, no other mode of choice or appointment can come into play . There apparently, be no casual or accidental vacancies until there is

£rst a valid and effective election by the people. If there has been a valid election or choice by the people then a vacancy subsequently occurring in the place of a Senator so chosen may be £lied as a casual vacancy, but the methods or machinery provided for supplying casual Yacancies cannot, and ought not to

be used to supersede choice by the people, or in cases where the people for any reason have made no choice. If, for in stance, there had been no election by the people before the 1st January last for want of nomination, or owing to the Governor having· omitteJ to issue his writ, or because the State Executive thought it politically or otherwise inexpedient to hold the election then, no one could say that the representation of the State in the Senate could in that case be filled by the Parliament, or it might be by

the Governor, with the advice of his Executive. The antecedent condition to the right of either to appoint a Senator is £rst an

effectual choice by the people, entitling the person to hold for the full term of service, and the subsequent happening of a vacancy. Your Committee do not think Section 15 comes into operation at all, except in the case of a Senator who holds an unchallenged seat as the choice of the people, or it may be of a person appointed under Section 15 itself to hold the place of a Senator so · chosen by the people.

D. The Court of Disputed Returns is the appropriate tribunal created by Parliament to decide in any particula r case whether the people have chosen or not, or whether what purported to be an election was no election and void.

E. It is to be noted that Section 15 is an exception to or in derogation of the people's right. If it were not there every vacancy, including casual vacancies, would have to be £lied by popular election. For that reason your Committee think the public interest, as well as the

principle of popular election, require that its scope or operation should rather be restricted than enlarged ; that if it he doubtful whether any particular case is within Section 15 it should be

excluded, in fiwour of popular election. It will probably not

be disputed that in cases of . doubt, the doubt should be solved in favour of maintaining the choice of Senators by the people, every other method of choice being treated as subordinate, and not to be adtnitteJ at all, unless the prescribed conditions of the Consti­

tution permitting such other method of cl10ice have plainly and without any doubt arisen. The people are not to be deprived of their right of direct choice without the very clearest language in the Constitution.

F. Your Com111ittee think that the Houses of Parliament of the State of South Australia were not entitled under Section 15 to fill th e vacancy i11 relation to Mr. Vardon unless he was rightfully a

Senator by virtue of the direct choice of the people. H e did not,

645

according to the judgment of Mr. Justice Barton, fulfil that condition. Section 15, therefore, was not applicable to the vacancy which arose. There was a vacancy, but it was not caused by “ the place ot a Senator becoming vacant ” as required by Section 15, but because of the place of a Senator which should have been filled by valid popular election in December, 1906, never having been so filled.

The people, through no fault of their own, had not exercised their choice. They had gone through the form of an election, but had failed to elect. G. If, as we have already pointed out, Section 15 presupposes an original 10 or antecedent choice of a Senator otherwise than under that Section, such original or antecedent choice can only, according to Section 7, be “ directly by the people ”—not a mere form of choice, but an effective choice, and, obviously, a supposed choice cannot be effective in the case of a person declared by the appointed tribunal not to have been “ chosen by the people ”—a person as to w hom the “ attempted

choice ” was void. It was not the place or seat occupied in fact by Mr. Vardon which was declared void, but the election of 12tli December, 1906, by virtue of which he claimed to take and hold the seat. A man is either a Senator or not, and under the judgment of 20

Mr. Justice Barton Mr. Vardon never was a Senator, or held the place of a Senator. IT. Section 15 is further limited to the case of a Senator whose place becomes vacant “ before the expiration of his term of service.”

Mr. Vardon’s term of service was either six years or nothing. It could only be for six years by virtue of the people’s choice. But the Court decided the people made no choice. Therefore, Mr. Vardon had no term of service. His place, whether he was called a

Senator or not, cannot be said to have become vacant “ before the expiration ” of such a term when he was displaced, because he had no 30 term at all, and there had been no election to give him right or title to a term of service, or to serve at all. A void election can give no “ term of service.” I. “ The place of a Senator ” to which the Houses of the State Parliament,

or the Governor with the advice of the State Executive, may appoint, must be created in the first instance by the direct choice of a Senator, by the people, and must become vacant before the expiration of his term of service. Mr. Vardon was supposed to have been chosen by the people as Senator, but the Court of Disputed Returns

decided he was not so chosen ; that “ the attempted choice ” was void, 40 and therefore as there was no “ place of a Senator ” created by his supposed election or choice, there was none to “ become vacant” within Section 15—to bring th e «provisions of that Section into operation. During the interval between the ineffectual choice and the judgment declaring it was no choice Mr. Vardon may

have been called or regarded as a Senator, and may have

acted as though he were one—but he was not, and his being so called, or having so acted, could not make him a Senator ,or put him in any different or better position than if Mr.

Justice Barton had tried the petition and delivered judgment before 50 the Senate met or before Mr. Vardon had an opportunity of taking his seat. The fact of his having sat could not give him a term of service unless a person not chosen by the people can, by taking his

seat in the Senate, become or make himself the choice of the people. J. Even if it could be contended, though we think it cannot, that Mr. Vardon had a term of service until the decision of the Court of Disputed Returns, it is plain that even then his place did not become

vacant “ before the expiration of his term of service,” as required by Section 15. The decision itself ended the supposed term—was, in fact, its expiration—and therefore the place became vacant not 60 “ before,” as Section 15 requires, but on or simultaneously with its

expiration.

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K, To uphold tL e choi ce of the State Paelia.mcnt in this case would, we think, r equire the Senate to sav the Constitution means that in case of a void election the people, wh; wer e not to blame, are to be di sfrnnchised, and their rig ht of choice, which they were prevented by offi cial carelessness from exorcisinQ;, is to he tra nsferred to oth ers. \Ve do not think S ection 15 has or intended to have such an effect. L. It was P?inted.out that the words " place of a Senator becomes vacant,"

or then· cqmvalent, also occur in Sections 13, 19, 20, and 45, wh er e can only r efer to persons effectively constituted Senators, and

1t was arg ued t hey shoulJ have the same m eanin

lllcrely to the seat occupied by a person claiming to be a Senator, but whose claim is disputed and petitioned against, then it was submitted tL ey would mean the same in Section 19, with the result that such a mig·ht, by r esi g ning, not only defeat the petition, but the

chum of one else to the seat, aml throw the ch oice into the

l1nnJs of tl1 e State H ouses of P arliament or it mi o·ht be the Governor ' 0 . with tl1 e advi ce of l1is Executive Council. This arg ument strongly supports the view that the worJs

" place of a in Section 15, and the corresponding words

in S_ection 19, cnn only be satiE :fi.ed by n person effectively

c:on st1tuted " a S enator," and rigl1tfull y holding the ':place o f it Sopntor. " If Mr. Vardon had not a '' plncc" which he could

resig n under Section 19 l1e had none which the State Pnrlinment conld fill under Section 15. Resig natiou unde r Sec tion 19 ougl1t not, in t he opinion of your Committee, to be ope u t o a, per so n whose election is sought to be

J eclnred voiJ, not only in cnses where the seat is el aim ed by some one else, but g enerally on the g round that it would, if the co urse followed hy the State Parliament of South Australia is right, take awn,y from the peopl e their rig ht of clwice and hand it over to

othe rs. In Mr. Ya rcl on's case, however, the seat was claimed by some one else.

}:{. lt is not contt.'nded that if t he whole election had been declared void the State P:nliament could, under Sectio n 15, have appointed three Senator s to fill tf1e vacn ncies, and your Committee are unable to _ sec what diffe1·encc t 1Jel·e in principl e in the ease of an e lcc twn

declared n >id :>s to one, or it should be said there is a, cnsual

\·acan cy in the ease of on e wlll('h is not so in the case of three . ., ' T Jt lmfl br en nrg d tTwt a popular cTee tron couJd not tnke plil.c e now

heeanse of the provi·sions of ectron t 3 of the Constitution, anJ tha t 1f a Senator we re chosen now he would not be entitled to begin l1i s term of Sf'l'Vite tilt 1st J'anuary, 1908, :111d that fl't the J11 Cl11l tim c the Stnte of S outh Au :-;tra lia wouiJ he or1 e Sena: tor short. Your Com­

mittee, on tire auth ority of the judg ment of tl1 e Hign Court upon the applicntion for mamlamus, do not accede to t hose objecti ons. The Hig h f'onrt judg me nt seems conclusive that the provisions of Section 13 ofte r no impediment t o g iving tne people of Sou th A us­ t rnlia the opport u nity of exer cisin g t heir choice and electin g a

Senator uo w . The of the judg ment a re as follow :-

' ·Sec ti on 13 provi des t ha t th e ter m of en ·L ce of a Senator ch osen in ord ina ry rntn ti on sha ll be ta k en to beg in o·1 t he day o f J a nu a ry f oll owing hi s

el ect ion (ex cept in certain ca;es not TJ.0 \1' m ntcr ia l). It \\' as suggested t hat t hi s p 1o vision is incon-sis tou t. with a n e lecnio n Lein g b e·ld lifter the fir s t of J a nuarv to fi. ll ,·aea nc ie · \\'hi ch on!!ht to ha,·c been fille d a t a n e lect,ion he ld bf'f•Jr e th::tt da.v; bn b w e uo n ot tl;iuk t ha t t her e is a ny th ing in t h is p oi nt. If t he electi on o ngbt now t o be hehl , it. shonld, wo tl1ink, be ta k en to bo

h e ld nunc p1·o t unc l'or :J !l p nrposes. O tbc n \! ise th e main p 1r rposoof scc.: m iu g a reg ul a r rota:iun o f S e nato r; w oul(l be fr ustrated ."

0.. l'J1 e attenti on of vo ur Committee was al o directed to Sec tion 20;'), snh­ sectinn (3 ), oe t he Com mOl iW enl t h E lectoral Act, prov idin g t hn t in tl-1e f':l.Sf' of a n declared r oid thf't'ct sh all he n. ne w el cc tio 11.

9

If this were inconsistent with the Constitution it could not prevail, as the Electoral Act cannot override the Constitution; but it does not appear to be in any way inconsistent. It seems rather to give effect to the principle of the Constitution that the people must, in the first

instance, choose, and that they have not so chosen if the election is declared void, and should he given an opportunity of doing so.

P. Section 108 of the Commonwealth Electoral Act was also cited to show that “ a Supplementary Election ’’ Avas contemplated, and provided for—applicable where necessary to one or more vacancies, and it vvas contended that the Senate election for the State of South Australia 10 did partially fail as regards Mr. Vardon, inasmuch as though nominally “ returned as elected,” the election and return were both void, and as though there had been no return at all as regarded

Mr. Vardon, and therefore the full number was not validly returned as elected. Your Committee agree with this Anew.

Q. It is truly suggested that a popular election means expense. Your Committee respectfully think that a question of expense should ' not be permitted to defeat the constitutional right of the people to

choose their own Senators, or to justify the Senate in recognising an appointment or choice made by a State Legislature or indeed by 20 any other person not clothed with clear authority to make it.

R. Your Committee respectfully point out that it would scarcely be just that the people should forfeit their right to choose a Senator owing to an attempted choice having failed through no fault of their own, and further that if the right of the State Parlia­

ment of South Australia is maintained, there will he an obvious temptation to those in a minority of the people, but temporarily in a majority in Parliament to compass the voiding of an election in order to secure the appointment of their own nominees by a friendly

Parliament. 30

6. Your Committee therefore have arrived at the conclusion that there Avas not a vacancy within the meaning of Section 15, and that the Houses of Parliament of the State of South Australia were not entitled to choose a person to hold the vacant place in the representation of the said State in the Senate.

Your Committee therefore respectfully report, in terms of the prayer of the petition, that the choice by the Houses of Parliament of the State of South Australia of the Honorable J. V. O’Loghlin to hold the place of a Senator for the said State is void, and that the Honorable J. Y. O’Loghlin has not been duly chosen or elected as a Senator, or to hold the place of a Senator for the said State, and has no right or

title to sit, A rote, or act as a Senator, and that the seat of one Senator for the said 40 State is vacant.

7. Your Committee make no aAvard as to costs and recommend that the sum of Fifty pounds deposited by the Petitioner be returned to him.

J. H. SYMON,

Committee Room, Chairman.

. 9th October, 1907.

ADDENDUM.

“ As the question is a difficult point of Constitutional Law, Avliicli any decision of the Senate will not finally settle, avc consider the question a proper one to refer to the High Court.

HUGH DE LARGIE.

H. TURLEY.”

. 10

COMMITTEE OF DISPU TED RETURNS AND QUALIFICATIONS.

MTNUTES OF PROCEEDINGS.

THURSDAY, 29TH AUGUST, 1907 .

Senator de Largie, Dobson, Macfarlane, Col. Neild,

Present :

Senator Sir J. H. Symon, Turley, Walker.

The Clerk read the entry from the Journals of 5th July, 1907, of the Warrant appointing the Committee. On motion of Senator Col. Neild, Senator Sir J . H. Symon was appointed Chairman. The Clerk read the entry from the Journals of 23rd August, 1907 , referring to the Committee the Petition of Joseph Vardon against the choice by the Houses of the Parliament of South Austmlia, of the Honorable James Vincent O'Loghlin as a Senator for the State of So uth _Austraha.

Copies of the Petition were before the Committee. Committee deliberated. The Chairman submitted for the approval of the Committee the following rules to be observed in conducting the inquiry, viz. :-

(1) That, with regard to evidence, the Committee will follow section 199 of the E lectoral Act. (2) That the Petitioner and the Respondent may be represented by counsel, if desired by either of t hem, but only one co unsel to appear on each side. (3) Subject to the foregoing, the practice of the Court of Disputed Returns as to speeches

and procedur·e to be fo llowed as nearly as possible. The rules were adopted. Committee deliberated. Senator Col. Neild moved-That the next meeting of the Committee be held on Wednesday, 4th September, 1907, at half-past 1 o'clock p.m.

Resolution agreed to. It was r esolved-That the Chairman move, in the Senate, the following motion s :-(1) That the Committee of Disputed Returns and Qualifications have power to send for per­ sons, papers, and re cords in connexion with the inquiry into the Petition of Joseph

Vardon against the choice of the Honorable J ames Vincent O'Loghlin as a Senator for the State of South Australia. '

(2) That the Standing Orders be suspended to enable the Committee of Disputed Returns and Qualifications, if necessary, to sit during the sittings of the Senate. It was resolved-That the Clerk obtain for the Comm ittee the certificate of the choice o£ Senator O'Loghlin ; the de cision of t he Court of Disputed R eturns in the matter of the Petition of Reginald Pole Blundell against Joseph Vardon , heard at Adelaide; and the judgment of the High Co urt of Australia in the matter of an application on behalf of an elector of the State of South Australia for a prerogative writ o£ mandamus addressed to t he Governor of South Australia commanding him to cause a writ to be issued for the election of a Senator.

The parties were then call ed in. The representative of Messrs. Madden and Butler, solicitors, of Melbourne, agents for the finn of Messrs. Bakewell, Stow, and P1per, of Adelaide, appeared for the Petitioner, and was informed by the Chairman that the Committee proposed to commence the hearing of the Petition on Wednesday next, 4th September, at half-past 1 o'clo ck ; the Chairman also read to him the rules the Committee had decided to observe in conducting the inquiry . ·--

The Clerk informed the Committee that Senator O'Loghl in had been notifi d of to-clay's meeting. He was not prese nt, nor was there any appearance on his behalf. Committee adfourned till W ednesday, 4th September, 1907, at half-past 1 o'clock p.m.

649 >

11

WEDNESDAY, 4th SEPTEMBER, 1907.

Present :

Senator Sir J. H. Sy m o n, in the Chair;

Senator de Largie, Dobson, Macfarlane,

Senator Turley, Walker.

The minutes of the previous meeting were read and confirmed. The Chairman stated th at he had moved in the Senate, and th at the Senate had carried the fol­ lowing resolutions :— (1) That the Committee of Disputed Returns and Qualifications have' power to send for per­

sons, papers, and records in connexion with the inquiry into the petition of Joseph Vardon against the choice of the Honorable Janies Vincent O’Loghlin as a Senator for the State of South Australia. (2) That the Standing Orders be suspended in order to enable the Committee of Disputed Returns and Qualifications, if necessary, to sit during the sittings of the Senate. The parties were then called in. , Mr. A. W. Piper appeared for the Petitioner, Mr. Joseph Vardon. Senator O’Loghlin appeared in person. The Acting Clerk of the Parliaments produced the following :— (1) Copy of the Order of the Court of Disputed Returns, made at Adelaide on 31st May, 1907,

declaring the election of Members of the Senate for the State of South Australia abso­ lutely void in respect of the return of Joseph Vardon. (2) The original certificate, dated 13th July, 1907, of His Excellency the Governor of South Australia to His Excellency the Governor-General, of the choice on the 11th July, 1907,

by the Houses of the Parliament of South Australia, of the Honorable Janies Vincent O’Loghlin to fill the vacancy in the representation of South Australia in the Com­ monwealth Senate caused by the decision of the Court of Disputed Returns that the election of a Senator on the 12th December, 1906, was void in respect of the return

of Mr. Joseph Vardon. (3) The original petition of Joseph Vardon, dated the 22nd August, 1907, against the choice by the. Parliament of South Australia of the Honorable James Vincent O’Loghlin as

a Senator for the State of South Australia; which petition was lodged with the Acting Clerk of the Parliaments on the 23rd August, 1907. The facts as set forth in the said petition of Joseph Vardon were admitted by Senator O’Loghlin.

Mr. Piper then addressed the Committee on behalf of the Petitioner. Senator O’Loghlin stated that, at present, he was not prepared to address the Committee, and asked th at the Committee adjourn till to-morrow. The parties withdrew.

Committee deliberated. Resolved—That the Committee meet again to-morrow at half-past 10 o’clock. The parties were again called in and informed of such decision.

The Committee adjourned till half-past 10 a.m. to-morrow, ι

THURSDAY, 5th SEPTEMBER, 1907.

Present :

Senator Sir J. H. Sy m o n, in the Chair ;

Senator de Largie, Senator Turley,

Dobson, Walker.

Macfarlane,

The minutes of the previous meeting were read and confirmed. Mr. A. W. Piper, counsel for the Petitioner, and Senator O’Loghlin were in attendance. Senator O’Loghlin addressed the Committee in reply to Mr. Piper. Mr. Piper again addressed the Committee.

Senator O’Loghlin, on the invitation of the Chairman, added some additional observations. The parties withdrew. Committee deliberated. Resolved—That the date of the next meeting of the Committee be fixed by the Chairman so as best to suit the convenience of all members of the Committee.

Committee adjourned.

12

WEDNESDAY, 11TH SEPTEMBER, 1907.

Present:

Senator Sir J . H. SYMON, m the Chair;

Senator de Largie , Dobson, Macfarlane, I

Senator Col. Neild. Turley, Walker.

The minutes of the previous meeting were read and confirmed. Senator Cl)l. Neild drew attention to the fact of certain printed opinions of counsel being before the Committee. The Chairman stated the opinions had been referred to by Senator O'Loghlin in his address to the Committee, and he had been allowed to use them as part of his own argument.

Se nator Col. Neild requested that his disse:J t be recorded to the introduction of the op1mons ll} question on the ground that they represented the opinions of several counsel instead of the one coun:;e each that it had bee n decid ed should alone address. the Committee. The Chairman reported the receipt of a letter from Senator O'Loghlin, dated 11th September, 1907, forwarding a statement of certain additional arguments for the consideration of the Committee.

Senator O'Loghlin was called in and asked if a copy of the letter and statement had been furnished to the other side as the Commit tee had stipulated, and as he and Mr. Piper had agreed should be done . He stated that he had not yet clone so, but undertook to do so forthwith. Senator O'Loghlin then withdrew.

The hnther consideration of Senator O'Loghlin 's letter was deferred until the Draft Report had been submitted by the Chairman. The Chairman then brought up the Draft Report, and read the same to the Committee as follows :-YorrR having considered the petition of Joseph Vardon against t he choice by the Houses ot

Pal'liament of the State of South Australia of the Houorahle J. V. O'Loghlin as n Senator for the snicl State, and against the right and t iMe of the Honorable ,J. V. O'Loghlin to sit, Yote, and act as such Senator, and pmyi ng that it may be declare

was called. 2. At the end of 1906 t he places of three Senators for South Australi a becnme vncant by etnuxion of time, anrl on the 12th December, 1906, a n election took place to fi ll these vacancies, and three persons-one of them being t he ·p etitioner, ,Joseph Vardon-were retumed as duly elected.

a. On the 8lst May, 1907, H is Honour Mr. Just.ice Ba:rton, sitting as the Court of Disputed Returns, declared the said election absolu tely void in respect of the retum of the said Joseph Vardon. This decision (see Section 201 of the Commonwealth Eleclo?·a/ Act 1902) is final nnd conchtsil:e, 'without appeal, and it is not to be questioned in any way. You!' Committee therefore find and report that, so far as regarded the petitioner, t h e said electiort-that is, the choice of the people, on the 12th December, 1906- was void, and that no one ·was on that occasiori chosen by the people to fill the pla"e of Senator to which the petitioner wns supposed to have been .elected. In the words of Mr. Justice Barton during certain mandamus proceedings before the High Court, q uoted to your Committee,

" \Vithin the Acts there was no election at a ll. " The High Court also in theit· unanimous judgment upon the mnnda mus npplication said, "The on ly relevant is t hat the attempted choice of one of the three Senators who ought under Section 7 to have been d irectly chosen by the people was ineffectual." 4. On the llth Jtily, 1907 , there being a vacnncy, the Houses of Pariiament of South A ustralia, assuming it to be a vncancy within the meaning of Section 15 of the Constitution, and nssumin'g to act under that section, met together and chose the H onorable J . V. O'Loghlin to hold t he place then vacant in the representation of South A ustralin in the Sennte. If the vacancy was not a casual vacancy- that is one within the menning of Section 15- the choice of the snirl HousEs of Parlin'ment was not authorized or vnlid.

It becomes t hen the duty of your Committee, in obedience to the reference by the Sennte, to ascertain and report whether the vacancy was one within t he meaning of Section 15- in other wot·cls, whether a vacancy in the representa­ t ion of n. State in the Senn.te clu e t o the people for any and through no fn.ult of their own, not haYing exercised their· choice, can be fille

:1. The following grounds a nd considerations hrwe influenced yom· Committee in arri1·ing nt their con­ clusion:-A. It is pr01·icl ecl hy Section I of the Constitt1tion thnt Sen:ttors sha ll he "directly chosen by t he people of each Stnte."

B. Section 15, whi ch is equally n part of the Constitution, provides for casual vacancies, to which t he State Houses of Parlinment or the l;01·crnor, wi t h the nclY ice of the State Executi ve, if the Houses are not in session, may nppoint. C, Choice hy t he people appears to your Committee to be the basis of the Constitution of the Senate, and

until the p eople k11·e had an opportunity tlo exercise, and have effecti1·ely exercised their choice, 110 other mode of choice or appointment can come into play. There can, apparently, be no casual or accidet>tnl ntcnncies unt il there is first a valid a nd eftecti,·e election by the people. If t here has been n valid election or choi ce by the people, t hen a vncancy subsequently occurring in the place of n Senator so chosen may be filled as a casual Yacancy; but the methods or machinery pro,-icled for s upplying ca1.ual vacancies cannot, and ought not to be used to su persede choice by t he

people, or in cases where the people for any reason have made no choice. If, for instance, t here had been no election by t he people before the l st Ja.nunry last for wa nt of nominat ion, or owing to the Govern or ha1·in g om itted to issue hi s writ, no one co uld say t hnt the representation of th e State in t he Senate could in t hat case be filled by the Parliament, or it might be by the Go,·ernor, with the acl,·ice of hi s Executive. The antecedent condi tion to t he ri g ht of eithe1· to :

Your Co mmittee do not t hink Section 15 comes in to operation at all, except in the case of a Senator who holds :en unchalleng ed seat as t he choice of t he people, or it may be of n person nppoint€cl und er Section 1.:; itself f'o hold the place of t he Senator ,,o chosen by the p eople.

13

D . H is t o b e noted t hat Section !.i is an exce ption t o ot· in d erogation of Ll1 c peo pl e',- ri g h t . lf it were

not there, every vacancy, inchaling casual nLCancies, would ha 1·c to be fil] e< l by popular eled ion. F or that reason your Commit tee t hi11k the public interest, as " ·ell a s t he principle Qf popular election , r equire that its scope or ope.ra tion should be restricted a 11 d n ot enlarged; that if it be do ubt ful whether a ny pa r t icular case is within Section l."i it b e e xc lud ed . It will l"·oba bly not be

dispu ted t hat iu cases of d oubt t he doubt should be soh·ed i11 fa ,·our of t l1e ch oice of

Senators by t he people, e,·et·y other lll ethod of choice bein g t rea t ed assub onlina t.e, nncl not to be admitt ed at all, unless t he prescribed conditions of t he Conotit ut ion p ermi t ting other method of choice have pla in ly nnd without a 11 y doubt arisen. The people a re n ot t o be d epri1·ed of their ri g ht of direct choice wi thout the very cle:trest lang uage in t he Co nstit ut ion. E . Your Commit tee t hink t hat t he H ouses of Purliament of t he State of Sout h A ust rn li a \\·ere not e nt it led

under Section 15 to fill t he l':teancy in relat ion to Thlr. Va rdon unless he was rightfully a Senator Ly virtue of the direct choice of t he people. Mr. V a rdon did not, according t o the judg men t of

Mr. Justice Barton, fulfil that co ndition. Section 13 , t herefore, was not a pplicaLie to the vacancy which arose. There was a 1·acancy, but it was not ca used by ' ' t he p lace of a Senator becoming· ntcant " as required by Sect ion 15, but because of the place o f a Sena t o1· which should have bee n tilled by valid popular election in December, 1906, ne,·e r ha vini!' bee n so f·illccl. The people, t hr oug h JLO fault of th eir own , h ad not exercised their choice. They h ad g on e thrcugh the form of an electio11,

but had failed to elect. F . The Court of Disputed 'R eturns is the appropriate tribunal t o deci

U. It w:ts not the place or seu t oecupi etl in by )ll'. Vard on which was cl ecla.r ed ,·o id , but t he election of 12th December·, 1906, uy 1·irtue of whi ch he claimed to ta ke a n< l hold t he scat. A man is either a Sena tor or not, :L nd under t he j udg ment of Mr . .Justice Bar·ton \1 r. Y urtlon ne ,·er " ·as " Senator, OL ' held tho p lace of n Senator. The wortl s ' ' for which he was chosen, ., in Section 15, a re sig nifi cant.

These words cleurly refer bnc k to Section 'i , and imply t hat t he pl ace to become ,·a can t mu >t b e that of " person wh o has been directly chosen uy the people, and not n perso n wh o has been decla red not to h:we been so chosen-as t o whom the " at tempted choice" was 1·oid. Chosen means what it says­ not merely going t hroug h a form of choice, but t he subject of effect ive ch oice .. H . Sec t ion lii is further limited to t he case of u Senat or pl:tcc becomes Yacan t '' before th e ex pimt ion

of his term of ser·,·ico. ' ' ?-J r·. Vardon's t erm of sen · ice \l':t · either six yeai·s or nothing . It could

only be for six y €nrs by virt ue of t ir e people's ch oi<.:e. But t l1 e Co urt Llecided t he peo ple m ttd e

no choice of Th'lr. Vardon. Therefor e, h e !mel 110 term of service. His place, whether he was

called a Senat ot· or not, cannot he sa id to ha,,· e become vamtnt "before the expiration " cf s uch a t erm when he was ej ected , becauRe he had no t erm a t all, ctnd the re h1cl been 11 0 election to

gi've him right or title t o a term of service, or t o sen·o a t all.

I. The only place to which, nnder Section 13, the Houses of t he S ta te l'arliarnent, ot· tl1 e Gnvc l'll or, with the advice of the State E xecnti,·e . is entitled to a ppoin t i,- t l1 at of :t Senator who " was

chosen " directly by t he peo ple of tl 1e a nd wl1 ose place h a.s become vacant befor e the

ex pirat ion of t he cletin ed t enn of sen ·ice under th e Co n,- ti t ntion wbi ch the choic e of t ir e people gave him. The Court of Di sputed Returns has decided ;\I r. Vardon was not so chosen ;

t hat, in the wotd s of t he Hig h Co urt judg mtnt "the attempted choic;e " was 1·oid , and it seems t o follow there was no term of service. During the in terntl between t he ine ffectua l choice and t he judgment declaring it wa,s no c hoice :\Jr. V ardon may ha ,·e been culled or regarde

i-;e nator , and may ha 1·e acted as t ho ug h he were one-but he was not, n ne! hi s being so called, or h:t ,·in g so acted , could not ma ke hi m on e or put him in a ny difiere nt or bntt er position t ha n if

Mr. Just ice Barton had tried t he peti tion cleliY ered judg ment before t he Senate met a t all.

.T. T o uphold the choice of P arliament in thi s case would, we think, require t he Senate to say the

Constitution metw s that io. case of a void election the people, who were not to blame, are t o be disfranchi sed , and their ri g ht of choic e, whi ch they were pre1·e ntecl by ofli cial carelessn es& from exercising, is to b e tnwsfen ed to others. 1'\'e do not t hiuk Section 15 has or was in t end ed to h:we s uch an effect.

K. It was poi nt ed o ut that t he word, " place of n Senator becomes l':teant," or t heir equil':dcu t, also occur in Section s J:-l, IU , 20, a nd 43, where they refer to persons effectively co nsti t uted Senators, a n!l it was argnecl t,hey should ha,·e t he meaning iu Section 13. If, on the other hand, in Section 13 they refer merely to t he seat occupied hy a person claiming to be a Senator, but whose claim di s pu ted a nd petit ioned ag ai nst, t hen it was su bmi t t ed t hey should menn the sa me in Section H) ,

wi t h the res ult t hat such a person mi g ht , by resigning , not only clefeut petit ion , bu t Lhe claim of some on e else to t he sea t , and throw t he choice into t he ha nds of t he State H ouses of P a rliament, or it might be the (iovern or wit h the acl ,·ice of his E xecut ive Council. H Yardon had no place whi ch he could r esig n, he lutcl none, it is "ontended , which the State P a rlia nt ent could till. L. It not cou tendecl t hat if the whole election had been declared Yoid t he State Pa rli amen t could, under

Section li'i. h:l\·e a ppointed three Senators to fill the vacancie,, a nd your Co mmit tee are unable t o see what clifl'er ence there is in pr'iu ciple in the case of un election decla red ,-oicl n-R t o one , or why it shoulrl be 8aid the re is a casua l vacancy in the ca;;e of one which is not so in the case of t hree.

)J. It lms ueen urged tha t n popular electiou coul d not take place now because of the provisions of Section 13 of t he Constit ut ion , and t hat if a Sena tor were chose n now he wo uld not be ent itled to begin t erm of service till J st Jammry, 1908, and t ha t in t he meant im e t he St a te of Sout h Austmlin " ·o ulcl be one Senator sh.or t . Your Commit t ee, on t he a u t hority of ihe jud gmen t of t he High Court n pon t he arJpli eat,ion for mundam us, d o not accerle to t hose objection .'i . Tho High Co urt judg ment seems co ndus i1·c t hat t he provi oions of Section \3 offer no im pediment to g ivin g t he peo ple of Sout h

Austmli u t he o ppor t uni ty of exercising t heir choice a nd electin g u Senator now. The words of t he judg ment are as fo llow:-"Sect io n 13 pro,·ides t lrat t he term of sen·ice of a Sentttor chosen in orcli n

now nmterial). I t was sugge:;tecl t hat this provi Rio n is incons istent wi t h an election bein g held after t he fin,t cf J anuary to fi ll vacancies wlr ic h ought to hctve been fill ed at a n election held before that day : but we d o not think t lm.t t here is t l.r ing in t hi s po in t. lf t lt c

election o ug ht now to l >e held , it should , we t hink , be taken to be hekh11111 t' Jn·o t-w1 c fer all purposes. t he main purpose of soc uri ng a regu l:u· rotatioa of f::e nato rs

" ·o uld be frustra ted. "

1\. The of your Co mmi ttee was nl so direcLed .to ::!U ."i, (:{ ), of the Co mm onwenltlr

Electoral Act, pr·ovidin g t hat i n t he case of an election bei ng d ec lared ,-oi cl t here sha.ll be a new election . If t hi s were wi t h t he Constit ut io n it could. not pren1.il , as t he Electnml .; _, b

ca nnot; OI'CI'L'id e t he Co nstit ut ion : b ut it not appear· to be in a ny way incon, istcnt . It seern s

mthu to a i,·e e ff ect to t he pri nciple of t he Co nst.iLtt! ion that l he peo pl e nn"t, in tir e tirst choose, m';'d t ha t t lr ey have not so clwse ll if the election is tlccla red 1·oid , allll should lJe V' ''f'n 1u opport unity of doi ng so.

651 )

14

0. Section 108 of t he Commonwealth Electoral Act was ·also cited to show that "a Supplem entary Election " was contemplat ed, and provided for- applicable where necessary to one or more vacancies, and it was contend ed that the Senate election for the State of South alia did

part ially fail as regards Mr. Vardon, inasmuch as though nominally "returned a' elected," the election and r eturn were both vo id, and as though there had been no return at all as regarded Mr. Vardon, and t herefore t he full number was not validly returned as elected. Your Commi ttee are inclined to agree with this view. P. It is quite truly suggested that u popular election means expense. Your Committee respectfully

think that a question of expense should not be permitted to d efeat the constitutional right of the people to choose their own Senators, or to justify t he Senate in r ecognising an appointment or choice made by a State Legislat.ure or indeed any other person not clothed with clear a uthority to do so. Q. Your Co mmittee respectfully beg leave to point out that it would scarcely be just that the people

should forfeit their right to choose a Senator owing to an attempted choice having failed

through no J a ult of their own, and further if t he rig ht of the State Parlia ment of South Australia is ma intained, there would be an obvious temptation to t hose in a minority of t he people, but temporarily in a majority in P arliament to compass the voiding of an election in order to secure the appointment of their own nominee; by a friendly P arliament. 6. Your Committee therefo re have arrived at t he conclusion t hat t h ere was not a ''acancy within the

m eaning of Section 15, and t hat the Houses of Parliament of the State of South Australia were not entitled to choose a person to hold the vacant place in representation of t h e Sli id State in t he Senate.

Your Committee therefore respectfully report, in terms of the prayer of the petition, that the choice by the Houses of Parli a ment of t he State of So nth Australia of t he Honorable J . V. O'Loghlin to hold t he place of a. Senator for the said State is void, and that the Honorable J. V. O'Loghlin has not been duly chosen or elected as a Senator, or to hold t he place of a Senator for the State, a nd h as n o rig ht or title to sit, vote, or act as a Senator, and

that t he seat of one Senator fJr the said State is vac:Lnt.

On the motion of Senator Col. Neild, it was r esolved-That the Draft R eport be printed and circu­ lated to members of the Committee. Committee deliberated . Senator Macfarlane moved, an d Senator Turley seconded the motion-That ' Vednesdav next, at 1. 30 o'clock, be fixed for receiving and considering Senator O'Loghlin's letter of 11th Septe1,;ber, and

statement of additional arguments, and the repl y (if any) on behalf of the Petitioner; and t hat the further consideration of the Draft R eport be then resumed. R esolution agreed to. Committee adjourned.

THURSDAY, 19TH SEPTEMBER, 1907.

(To-day, at 11 a.m. , was fixe d, with the concurrence of the Committee, as being more convenient than 1. 30 p .m. yesterday.)

Senator Dobson, • Macfarlane, Col. Neild,

Present:

Senator Turley, Walker, Sir J. H. Symon.

On the motion of Senator Walker, Senator Dobson was called to the Chair during the temporary absence of the Chairman. The minutes of the previous meetin5 were read and confirmed. Committee deliberated.

The Chairman (Senator Sir J . H . Symon) entered and took the Chair. The followin g correspondence \vas received and read :-(1) Letter, dated 11 th September, 1907, from Senator O'Loghlin, forwarding further points for the co ns ideration of t he Committee.

(2) Letter, dated 17 t h September, 1907, from Mr. A. W. Piper, counsel for the Petitioner forwarding some notes in reply to Senator O'Loghlin's letter of 11th September, and his "further points for consideration." The consideration of the Draft Report was t hen resumed.

Paragraphs l -3 agreed to. Paragraph 4 amended and agreed to. P aragraph 5 amended and agreed to. Committee deli be rated. On motion of Senator Turley, it was resolved-That the further consideration of tlie R eport be postponed till this day fortnight at half-past 10 a.m.

Committee adjourned.

15

THURSDAY, 3RD OCTOBER, 1907.

Present:

Senator Sir J. H. SYMON, in the Chair;

Senator de Largie, Senator Col. Neild,

Dobson, Turlev,

Macfarlane, W

The minutes of the previous meeting were read and confirmed. Consideration of the Draft Report resumed. Paragraph 6 postponed until after the reconsideration of paragraphs 3, 4, and 5. Paragraph 3 reconsidered, amended, and agreed to. Paragraph 4 reconsidered, new sub-paragraph read and postponed. Paragraph 5 reconsidered, further amended, and agreed to. Paragraph 4, postponed new paragraph read and agreed to, paragraph as amended agreed to. Paragraph 6 read and agreed to.

New paragraph to follow paragraph 6, viz. :-" 7. Your Committee make no award as to costs, and recommend that the sum of Fifty pounds deposited by the Petitioner be returned to him" -read and agreed 'to. Report, as amended, agreed to.

After the adoption of the Report, Senators de tLargie and Turley handed in the following memorandum :-"As the question is a difficult point of constitutional law which any decision of the Senate will not finally settle, we consider the question a proper one to refer to the High Court.

Committee adjourned.

WEDNESDAY, 9TH OCTOBER, 1907.

P1·esent :

the Chair;

HUGH DE LARGIE. H. TURLEY."

Senator Sir J. H. SYMON, m

Senator de Largie, Dobson, Macfarlane,

Senator Col. Neild, Turley, vValker.

The minutes of the previous meeting were read and confirmed. A fair print of the Report was before the Committee. Committee deliberated. Ordered-That sub-paragraphs G, I, J, and L of paragraph 5 be reconsidered.

Paragraph 5, sub-paragraph G, amended and agreed to. Paragraph 5, sub-paragraph I, amended and agreed to. Paragraph 5, sub-paragraph .r, amended and agreed to.

Paragraph 5, sub-paragraph L, amended and agreed to. Senator Col. Neild moved-That the Report as further amended be agreed to, and be the Report of the Committee to be presented to the Senate. Resolution agreed to.

Ordered-That the entry from the minutes of the 3rd October, 1907, recording the Memorandum handed in by Senators de Largie and Turley be an Addendum to the R eport.

Committee adjourned.

653 5

i 6

1-\..PPE N DICES.

A. Onler of the Court of Disp uted Returns in the matter of the E leetiott retitio n of BlunClell v. Va rdon .

B . Judgment of Mr. J usticc Barton in the Co urt of D isputed Returns in t h e matt er of t he E lection P etit ion of Blundell v. Vardon.

C. Certificate of His Excellencv t he Governor oi South Australia of the choice of t.hc H onorable J ames V incent O'Loghlin as a "senator for t he State of 1-:lo u t h A ustralia .

APPEKDIX A .

h < THE H JGH OF Aus n :A UA .

Nou t"lt Au stralia Regi:;try . 1901, No. ] .

lt t Lhc HmLtcr oJ of Mc m uers ui the Senate for the btate of bouth A ustmli :t,

and

I n the matter uf t he r ctitiun of Reginald Pole B lundell Petiti.oucr.

against

Jose plt Vardon R es pon den t.

Before His Honour Mr. Justice Barton.

l<'rid ay, the 31 st day of May, ] 907.

'l'HlS r etitiu n coming Oil for further trial on Mo1Jda y, the 27th day of May, 190 7, Tuesday, t he 28th day u[ Ma\·, 1907, \\' cLlne:;day, the 29th oi May, 1907·, Thursday, the 30th day of May, l !l07, and: this day lipon read in g the P etit ion of t he abovc·named Regina ld Pol3 Blundell, filed the J5th day of Februar;,: ] 907 , and t he appearance of the nbovc·named Joseph Va·rdon , a·nd upon hearin g report of the Deputy Marshal of thts Co urt upon the recount ordered by th1s Co urt of the ballot-papers 111 co nnexion wi th the a.bovr-mentionecl election , and upon ins;)ccting rert.1.in cf the said ballot·paprt!'\. and upon hearin rr \'

V

of South ,\ ustralia, held on thr l:!th day of December, 1£06, is absolutely vcicl in of the return

o( the R espondent, JosP.p h Ya i'lbn . Dated this 7th ch." of June, Hl07.

Jh the C'ou rt,

1.. .

13 L'C HA}.' AN,

District Hegistrar.

17

APPENDIX B.

IN THE HIGH COlJRT OF AUSTRALIA

REGINALD POLE BLUNDELL PETITIONER,

AND

JOSEPH VARDON ·· •·· ... RESPONDENT.

STATE OF SOUTH AUSTRALIA ELECTION PETITION.

IN THE COURT OF DISPUTED RETURNS.

Commonwealth Electoral Acts (1902-5), sees. IIO, 111, 118 (a), ll 9 (b), (c), (e), 134, 147, 158 (b), (d), 161 (a.), 199, 200-Schetlule-Forms-Stat1otory Rules 1906, No. 78-Electoral R egulations 22, 23, 25, 28 - 0rdering recount after destruc­ tion of ballot-papers-Eiec lion-:Metlwd of voting, mandato1·y or directory - Writing and mw·lls on ballot-papers-Identifi­ cation f?f vote,·-Defective authentication of ballot·papers-O.fficial default-Avoidance of election-Amendment of petitio11.

The fact that, in an election f or the Federal Senate the returning officer for the State di rected, under sec. 161 (a) of the Commonwealth Electoral A cts 1902-5, a recount of all the ba ll ot-papers before the declaration of the poll, does not debar th e Court of Disputed Heturns from ordering a further recount under the control of th e Court. A case for a recount havin g bee n otherwise established, the fact that the ballot-papers of one of the electoral divi­ sions of the State had been

ballot-papers of the remaining divi sions. An ordinary ballot-paper which has initialed on the front, instead of the back, will not be thereby invalidated , if it appears that the paper was so folded that the presiding officer could see his initials without disclosure of the voting for candidates. An absentee ballot-paper which has been initialed on the front, instead of the back, is not thereby inva lidated, as the co nnterfoil is sufficient for authentication ; but absentee or postal ballot-papers which have no t bee n initialed at all are invalid. In considering the validity of ballo t-papers marked by

voters not strictly in accordance wi th the Ac t, the Court will give eff ect to the intentio n of the vote r wherever it is clearly indicated by the necessary crosses, except where the Aet has ex press ly declared the vote void ; and redundant marks upon the ballot-papu will not invnlidate the vote unless the marks are such that the voter can, not might po ss ibly, be identified. Cirencester Case, 4 O'M. & 11. , 19-!, Day's Elect ion Cases (155) applied. i\1arks made by the vote r upon the ballot-paper,

which there bas been an undo ubted attempt to obliterate, will not be treated as an indication of uncertainty on the part of the voter. It is mandatory that the occupation and address of the witness should be added to the signature of the witness to postal ballot-papers.

In estimating the effect of official detaults upon the reSLllt of an election, the Court will consider the incidence among the candidates of all authentic votes t.hat were invalidated by official defaults, so far as this can be done without infringing the secrecy of the ballot.

• AT an election for the Senate for the State of South Australia, held on 12th December, 1906, there were seven candidates for three seat s. The Commonw ealth returning officer for the State de clared the result of the p oll a s follows:-Josiah Symon, 33 ,597; Willia m Russell, 31,796; Joseph Vardon, 31 ,489; Dugald Augustus C rosby, 31,4.55; Reg inald Pole Blundell, 31 ,366; David Charleston, 30,608; Thomas Playford,

13,035 ; and 2, 74 7 ballot-papers were rejected as informal. This result was obtained by a recount held, at the request of Joseph Vardon, by the Divisional returning officers under sec. 16l (a) of the Electoral Acts 1902-5, the result at the first count having been :-Symon, 33,604; Russell, 31,793; Crosby, 31,525; Vardon, 31,509 ; Blundell, 31,337; Charleston,

30,615 ;·Playford, 12,938. On the r esult of the second count Symon, Russell, and V a rdon were d eclared to have been duly e lected, Crosby having mea ntime died. Blundell thereupon filed a petition praying (a) that the whole of the ballot-papers be revie wed and recounted, (b) that it be declared that the r espondent Vardon was not

duly elected, (c) that Crosby or the petitioner be declared elected, or in t he alternative (d) that the election of Senators for the State be declared void . William Russell did not file any appearance nor did he appear personally or b.y consent upon t he h earing.

The petition contained the following s tatements (inter alia) :-" (7). That voters w ere so unduly delayed by the presiding officers that they were unable to vote. "(9). That a.t Meningie a streamer was displayed at the entrance of the polling booth containing the following word s :-' V ote fo r Charleston, Symon and Vardon'-and that such advertisement was likely to have affectea the result of the election.

"(10). That certain ballot-papers were not initialed by the presiding officers as directed by sec. 134 of the Electoral Acts 1902-5. "(11). Tha t ballot-papers were improperly rejected by the counting officers as informal. :F. 11644. B

655

1-I.O. of A. 1907.

- :Afay 2, 3, 4, 27, 28 , 30; Jttne l. Barton, J.

May 2, 3, 4.

18

" ( 12). That many of such allege i informalities were occasioned by misleading directions-as to the mcthocl of voting displayed in the compartments of the polling booths. "(13). That ballot-papers whi ch were informal, and (15) sa ve ral poEtal ballot-papers, were improperly aclmitted and counted by ih e co un ting otficers.

"(14) That certain counterfoils of postal votes were not preservecl ancl were not available for the inspection of the scrutineers 01 1 the occasion of the reeount as provided by sec. ll "(16). That dnring the scrutiny ballot-papers were left exposed during the night in such a way, and ( 17) that ballot-papers were sent th ro ugh the post in so careless a mnnner, that they were liable to be tampered with.

"(18). That the number of votes ascertained to have been obtained by the various candidates, together with the informal ballot-papers, <.lid not correspond in numerous cases with the number of ballot­ papers acconnted for und<·r sec. 134 of the said Acts. "(19). That the cJivergencies between the votes for the various canJidates on the first count and on th e recount were so numerous and cons id erable as to show that the number of votes cast for the various candidates has not been asceriained with any degree of certainty."

The petition coming before B arton, J.,

Vaugltan, for the petitioner, leave to strike out the names of Symon and Ru ssell from the petition and to amend prayer (d) of t he petition so as to read "that the election of Senators for the said btate be declareu vo id as regarus the alleged election of the respondent Joseph Vardon." N o amendment of the separate paragraphs in the petition is necessary, as each is available agains t individual candidates : Line v. Wmnn (1).

Cleland for Symon supported the motion. Piper for the Respondent.-I object to the amendu1en t and the striking out of names. If the election was void, it was void as to all the candidates, and the consequences should be equally inflicted on them. The allegations of the petition in paragraphs 7, 9, 10, 12, 14, 16, 17, obviously refer to all the candidates, and are not severable; further, if proved, they may have cumulative effect and un seat all the returned candidates. Line v. War1·e n ( 1A) was purely a rec ount application, 110t one for voiding an election, and was from the first directed again st one candidate only. This petition is a public and cannot be limited by private arrangemeuts. If the amendment is allowed, these paragraplts must be

wholly struck out.

BARTON, .J.-I grant leave to strike out the names of Symon and Russell from the petition, and to make the desired amendment in the prayer. Paragraphs 9, 16, and 17 seem to be the only on es obviously affecting the ,· alidity of the whole election, and even these I do not feel bound to strike out before taking evidence upon them. The parties having agreed to abide by the result of the recount, if ord ered, the paragraphs in question are allowed to remain for the present in the petition.*

Vaughan.-! ask that a recount under the control of the Court be ordered : Electoral Acts 1902-5, sec. 197. The Court should grant a recount where it is apparent that there is reasonable ground for believing that a sub stantial mistake has been made. The first count and the departmental r ecount carried out under sec. 161 (a) showed considerable variations, and it is practically certain that still further .errors will be disclosed by a judicial recount, in which a more strict review of the decision s of the retnming offic ers can be carried out. The reco unt ordered by the returning officer for the State under sec. 161 (a )

has nothing of the nature of a judicial r ecount; it is, or should properly be, merely an arithmetical recount, without any assumption of power to revise the discretion exercised by the returning otficers in admitting or rejecting votes. In some of the counting centres that power of revision was improperly assumed ; this wrongful exercise of revision may have given Vardon hi s majority over Crosby, and is, t.herefore, good ground for ordering a proper revision in a judicial recount. Also a great many irregularities are apparent in the conduct of the election and the result of the departmental recount, such as the fact that in 66

counting centres out of 95 the arithmetical returns did not tall y, anu also the facts alleged in paragraphs 10, 14, and 17 of the p etition. Both the formal votes and the mformal, which were never properly the subject of a departmental recoun t, 8honld be submitted to th e judicinl recount: Came1·on v. Fyslt (2). The Court is entitled to assume that even more irregularities may have occurred than th e petitioner is able to w prove ; an d the Court is enabled by the Electoral Acts 1902-5, to exerci se its di sc retion in the widest possible manner, especially in t he direction of onleriug a recount.

I Here the Divisional returning officers were called as witnesses, aud the fact was discl osed that all the ballot-papers for the division of Angas, covering over 9,000 votes, had been accidentally destroyed while in chm·ge of the officer for that division. The total votes cast in the State were over 70,000.] The loss of the ballot-paperE at Angas is no bar to the petitioner's cl aim for a recount; he is entitled to accept the fi gures for that division as correct, and a strict recount of all the oth er available papers will attain approximate accuracy. The effect of the Angas results can on ly be a matter for the Court to speculate upon after the recount, for which the petitioner has shown a substantial claim. Further, secondary evidence can be g iv en to show that a number of votes in Angas divisi on were rendered invalid by official default.

Pipe1·.-In view of this destruction of a large proportion of the voting-papers, aritllmetica l accuracy cannot possibly result from a recount, and the whole purpose of such a proceeding is therefore done away with. If, as tae petitioner a ll eges, the returns in all the Divisions were erroneous, it is reason­ ably likely tha t the returns in Angas were inaccurate to the di sadvantage of respondent. 'l' he destruction or loss of 10 or 100 papers mi g ht be neglig ible; but th e destruction of 9,000 papers rend ers a r ecount futil e, because th e sole test in granting it is wheth er th ere is any probabili ty of a reconnt showing how the electors of the State voted. A ret.urn must be arithmetically co rrect; therefore the petitioner cannot

(I) J4 Q.E. D., 6.8. (l A) 14 Q.B.D. , f>.S. • .A s t.he upon lhe petition were in end Lle lcrmineLl by Lhe result o f a reco un t, t he question o f Lhe exclusion or limitat iou

of th ese parag-raphs wns no t fiu a.ll r decid ed . l C.L. R., 314

65 7

19

succ<:Jed, since the uncertainty of the Angas votes excl udes mathematical accuracy. Similarly the election May 2, 3, '' cannot be declared void, becanse it cann ot be " provet!," und er sec. 200, that official errors really affected the result of the election, as this proof is precluded by the loss of the Angas votes. Vaughan in reply .-Under sec. 200 the q nestion always is whe th er t he r esult of the election would or mi g ht have been affected by the official mista k es, i.e., whet her these cou ld reasonably be taken to have

affecteJ the result ; this need not be proved to demon st ration. T he pr obability that the An gas votes would vary as much as the total variations in the other s ix: Divisions is very slight.

BARTON, J.--When the votes were at the respondent Vardon's instance counted again before the declaration of p oll (Act 1905, sec. 161 (a)) variations were found between tile original count and the second count in 66 count ing centres out of 95. The ballot-papers rejected at the first co unt as informal were in so me cases reviewed, bLlt in the majority of cases that was not d one.

The pos ition of a p etition er apply in g to the Court of Disputecl R eturns may be thus described. it is on him to prove the a llegations of the p etition so far as they are not admitted. A s to all things in con­ n exion wi th the ballot, except matters of open conduct, it is manifes tly ditficult, if not impossible, for him t o prove a case for a recount, excep t by a .indicia! examination of Lhe ballot-papers. He is, in such circum­ stances, almost if not entirely confined to tl.Jis m eans of proving th11t enough vali(l votes to give l.Jim a seat or to entitle him to have been declared elected, have been cast in his favour. The onler for a r ecount is

thus the means adopted by the C,,urt to open the SOUrCe3 of pr(}Of. to him, by enabling him to adduce the only, or almost t he on ly, attainabl e evidence. Ordinarily, therefore, the Court will no t be astute to resist a recount, es pecially as that course cannot prejudice a. r espondent where the election has bee n efiiciently and accurately conducted except so far as be may be in a sense prejudiced by the doing of justice. Th e fact that in the pre:;ent case the votes were cou nted a second time unde r sec. 161 (a ) before the declaration

of the poll ,loes not, in my opinion , stand in the petitioner's way, C\ en snpposing what I may call the mechanical co nduct of that process to ha.ye been co rrect. The recount by this Court is a totally diffe rent matter. It is a recourse to judicial m et.h ods for the purpose largely of ascertaining whether votes have been all owed or rej ected according to the law of elections; that is to for the determination of questions

of law as a ppli cable to t he pollin g , by what Parliament deems t o be t he best co nsti tuted authority. The effort to remove mistakes, mainly arithme•.ical, solely by a computation conducted by the officer s who made the fir st calcu la tion, can by no means be consid er ed a bar to the intarposition oE the Court for the de termination of disputed questions of iaw arisi ng Oclt of decisions of th ese officers, complained of as grievances by candid ates who may not have been reall y defeated.

I should not have hesitated to ·grant a recoun t in the present case on the evid ence a nd arg uments atlduced but f or a r emarka bl e oc curren<.: e deposed t o by one of the electoral offi ce rs. Mr. Croft, the R eturning Officer for the Division of Angas, was unable to produce the ba ll ot-pa,pers for hi s Division, though th e returns of the voting are all ava.ilable. The Court has t o consider the effect of this unfortunate loss on the application for a reco unt. All t l1e ballot-papers of t he other six Divisions of thi s State are for thcoming a nd available.

Al'ter careful co nsideration-the case bei ng, so far as I know, wholly without precer'!ent-I h ave come to the conclnsion that t he recount ough t to be g ranted, notwithstanding the dostl'llction of the Angas paperH. T he petitioner comes to th e Com t to upset a cou nt which was p1·imdfacie correct. It must staDLl, so far as h e does not impeach it with su ccess. The means or doin g this have di sappeared so far as the A ngas votes-n early one-eigh th of th ose recorded-are concerned. It does no t fo llow that he is to be

deprived of tbe r emaining means of proof because of t he mis fortune which has occurred. His chance oE proving hi s case may or may not be lessened . The Co urt cannot possibly form an opinion on that question. But it is clear that the Angas votes must be accepted as they stand on the return, and to m_y mind equally clea r th at as to th e remainder of the votes the recount ought to be h

being a Senate e lecti on-by tl1e fact that the votes which cannot he ch:1ll enged constitute the whole of those poJi ecl fo r one of t he seven Divisions, whi ch each return one member to the House of R epresentatives. There may be a n exception to the acceptan ce of all t he Angas votes. It is alleged for the petitioner that b e can prove that some of tbe papers were improperly r ejected. I t may possibly be that he will be entitled to give specific secondary e vid ence of th at fact in such form a s may secnre the recep tion of those votes. On tlmt I will not pronounce any opinion at this stage, as the proper time for di scussion will be when the case comes before me again after the recount.

The r ecount, therefore, will be gran ted. It remain s to ap po int an offi cer who will conduct the recount and report to the Court; to secure him such ns sistance as may be necessary; to allow t he parties to appoint enumerators, if desired, who may attend as well as the lega l representatives ; and to :fix a date for the continuance of t hi s hearing. All

qu estions of cos ts are reserved mean tim e. JJ1utatis mutandis the order will be in the form adopted in .Melboume recently in the case of K ennedy v. Palmer (l); the Deputy-Marsh al will the recount and will r eport to me as to the assistanre which should be granted him. 'fhe reconnt is a grant of the prayer paragraph (o ), a.ncl t herefor e includes the whol e of the ba llot-papers, including those hitherto held

informal. The D eputy-Marshal repor ted to the Court that 828 votes of doubtful formality, in severa l classes, May 27, 28, , 3' ha.d been r esen ·ed for the determination of the Cou r t. Apart from these, the admitted fi g ures were:- 31 ; June · Symon, 31,733; Vardon, 31,413; Crosby, 31,383; Blundel l, 3 1, 302; Charleston,

30,531 ; P layford, 1'2 ,997. One class consisted of some ordinary ballot-papers, and some "absent" voting-paper s, which were ini tialed by the presiding o fficer on the front instead of on the back.

P ipe1'.-These votes are good : Chanter v. Blackwood ( 2). The initials nre so placed on th e ord inary boll ot-papers t hat th ey can be fold ed in su ch a way that the initials arc visible wi t !J out showing the names of t he candidates: :S ec. 134. The Co urt will not scrnti nize the creases on the papers to see if they w ere actua !l y so fold ed, bnt may in tb e abse nc e of eviclence to the coutrary, til at the papers

were duly pu t into the box after the ot'fice r wa shown the The voting- paper s are

goorl : R egnlations 22 (c) , 23, Commonwe>1l 1.h El ectora l Regulation s, Statutory Rules 1906, No. 78.

(l) 4 C.L.R. (2) 1 C L R., H l, at pp. 123-4

20

' '

30 • With regard to the absentee votes, the requirement fo r in itialin g is in tend ed t o secure the authe nticity of the voting-paper, which purpose is amply secured by t he fact thn t the counterfoil attached to the absentRe

pnper, and not torn off untillt reaches the couJJti ng cen tre, bears th e presiding offi cer's signature ; and the initials on the insi de are a sufficient second check when counting th e votes. The provi r- ion s of t he system for authenticity and secrecy of voting are thus preserved.

Vau,qhan .- The initials are in the centre of th e t op of these ordinary ballot-papers, so that the initials would no t show if the corner was turned back. Therefore Chante1· v . Blacl!wood (1) does not apply to these ; nor can that ca se possibly apply to a bsentee vo t in g -papers, which are gumm ed down with t he initials inside. Those ballot-papers as to w hich sec. 14 7, or Reg ulation 25 (1 ), have not been

observed must be rejected ; th e t est is whether t hey were actually shown to the presiding offi cer with the initials visible.

BARTON J.-I hold those ordinary ballot-papers good votes a s to which I find that as a matter of fact t hey were so folded that the initials were vi sible without di sclosing the votes. I hold the absentee voting -papers good votes. The signature of the p residi ng offic er on th e counterfoil is before him when banded in by the voter, and also before the Divisional R et um in g Offi cer when he tears off the counterfoil ; and wh en t he g ummed paper is torn open to count the vo tes, t he presiding officer's initials are there ; its authenticity is therefore complete.

Another class compri sed absentr e and postal lmllot-papers not initialed at all.

Vaughan. -These are good v otes ; the sig nature of t he presic 1in g offi cer on the co un terfoil i s equivalent to his initials, and the counter foil is part c•f th e "ba llo t -paper" : .Electoml Act 1902, sec. 119 ( b); R egulation 22 (e ); A cke1·s v. Iiowa1·cl (2). The initials may ha ve been on th e ragged parts torn off the edges of these papers.

PipeT.- When th e connterfoil is detached, before counting , th e ini tia ls are necessary to authenticate t he votes when being counted: Electoml A ct l 905, sees. 33, 111 ; Regulation 25 . There is no identity between the counterfoil and the ballot-paper.

BARTON, J.-These ballot-papers must be rejected; init ialing is a condition precedent to the validity of every ballot-paper. The snggrstiou tha t t he initials may h ave been torn off with the margin is too speculative, and is qu ite un supported l>y evid e nc e. Another class bad been marked by th e voters with three cro sses, not in the squares on the left band, but in the blank space on the right hand sice of the paper a nd oppositP the names of the candidates; there were no other marks. Some others had t hree crosses, with one or two in squares, and the other two or one out on the ri ght.

Vaugltan.-Votes were 3llowed in Chan te1· v. Blackwood (3) in which the crosses were outsid e sq uares but opposite the names of candidates. The position where the cross should be placed is not mandatory. The electors have properly indicated t heir intention, without any ambi g· uity, and the intention is especially clear since th e votes are given fo r th e proper uumher of candidates. 'l' he Court can vi ew th ese votes very liberally : E lectoml Acts 1902-5, sees. 197 (2 ), 199.

Pipe1·.-Sec. 197 (2) refers, not to the admission of ballot-papers, but to the consequences foll owing upon their rejection. These papers are informal : Chan ter v. Blackwoorl. (4) does not apply ; that case was decided upon the fact that the cross was in a rectangular sp 11.ce between lines ; the present crosses are out in the open, whcre11s they should be put in t he squares pruvided. In sec. 158 (b) the words" the square" governing el f;Ction of Senators are m ore strict than th e words" a Sf[u are" for election of Repre­ sentatives in sec. 158 (c). This loose neEs about the voting for Representntive;; is proved by sees. 163,

164: "Cross set opposite the name of the cand idate; " cf. sec. 160 fo r Senators . Chan ter v. Blacllwood (5) did not proceed upon the obite1· dictum tha t the placing of th e cross in the square was directory, but upon th e finding that the cross actually was in "a square; " and the legislature h as s ince altered t he fo rm of the paper to a less liberal form by the 1905 Act and Regulations 22 (c),(/), 23 .

BARTON, J .-I do not witf, draw th e opinion expressed by me in Chanter v. Blad:woocl (5). Without relying too much on the" Directions" to electors, I mu st hold th tse votes g ood , ns the intention of th e voter is c lear. I prefer in thi s class of qu estions to rely on the opinions expressed in the Ci1·enceste1· Case (6): the question bns th e voter" clearl y indicnted th e pen·on for whom he wish ed or intend ed to vote ?" " \Ve ought to interpret the Ballot Act li bera lly, an (l, subject to other objec ti ons, to g ive effp,ct to any mark on the face of the paner which in our opinion cl early indi cates the inten t ion of th e voter whether made with pen and in k, pencil, or e\en an indentation made on th e paper, nn e! whet her on the rig ht or the left hand of th e candida te's name or e lsewhere wi thin hi ;; compartm ent on th e vo tin g-paper."

Another class of v otes, having cros ses in three squ ares, a nd one or ru < r e crosses or marks on the right hand sid e oppoEite the names thn s \Oted for, were all owed, H is H onor con s iderin g tl1at th e marks afforded no clu e for id entifi cation 6f th e \·ote r, an d introduced no un certainty , but on th e contrary tend ed to emphasize the voter's intention.

Another class con tained crosses in th ree sq uares, a nd mark s in other sqnnres. Those on wl1i ch th e extra marks were nnobliterat etl \l·cre rej ected on th e g ro n11rl of :unbig uit y : Ca me?·o n v. Fysh (7). Others on which th ere appeared a success fu l ob li te mt ion, or a pa r ti al bnt n 11

objecti on thnt the vote is nn certnin , is olw ions, fo r t he simpJc th at. on e cnndidnte has

just as mn ch ri gh t to claim th e vote a s t be other, fl JHl so i t. ong ht nor to be conntecl for

either, and th e Sta.t nte so en act s. \\re ba ve done 011!' bes t to di scover wheth er, a lt hotw h

obscurPd hy th e blot;: , blurs, or oth er marb, t here existctl po,; iti \ 7 0 indica t ions on the part of the

Il l 1 C. L .R. , 121. (2) 16 Q. B. D. , 7:l9. (3 ) l C . .L .R . , 39 and 121, at p . 127. {4 ) 1 . • and 121.

(5) 1 C. L .R , ;JO. (6) 4 & I I. 194. at pp. 196-7. Da.,·'• F. lec. Cases, 15.\.

(7 ) 1 C. L.R., :!H , at p. 316. (8 ) 4 0 '.\1. & II ., 1D4, a t p. 197.

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an intention to vote, without a t hought of leavin 0 o- beh ind a trace to enable oim to be identified. We have May 27, 28, 30, 31; June l. not been to g iv e way to objections of an un substantial character, but we have endeavoured to inter-prel the language of th e ·Statute in the li beral spirit in which it is conceived, and to carry out the. inten-tions of the legislalure in th e spirit in which the enactments were passed, supporting every vote which we have found to be clearly indi cated, except in a few cases in which the lang uage of the Act expressly declared them void." Another class of votes were all marked in three sq uares, but only with di agonal lines, or with a cross in some squares, and an incomplete mark iu other squares , or with quite nndiscipherable

signs. It was argned t hat these were valid because the intention to vote was clear, as three

and only three candidates were thus indiea ted . But th e votes were disallowed, following Chan te?' v . Blackwood ( l ), on t he ground that the making of a cross was mandatory. '3om e postal ballot-papers were held inva lid because the "title" of the witness, as directed by the counterfoil, or

his "occupation and place of living ," as directed by sec. 118 (a), bad not been add ed to th e

witness's sig na ture. Omi ssion of this necessary precaution for authentication could not be cured by the words of sec. 118 (a) that its requirements need only be" sub stantially observed." A class of ordi nary voting-papers w ere rejected bcca nse, althoug h they were properly marked with . cross es in three squares, there were three crosses in t he bln.n k sp rwe on the right of the paper, opposite

names of caiulidates who did not co rrespond with the caotlidates who were voted for in the squares. Som.e papers had three crosses in squares , and the word " yes" writ ten on top of each of the crosses, or opposite on e or all of the crosses in the open space on th e rig ht-band side of the paper. These were allowed, th e intention being clear, and there being no e videnc e t.hat these marks were intended to lead, or

would probabl y lead, to the id entification of the voter within the meaning of sec. 158 (d); Cirencester Ca se (2) : " It was argued before us that if tbe m n.rks were such as rnight lead to the identification of the voter, tbat would be quite suffi cient to vitiate and rend er void the vote. That is not our opinion. It is not a qu es ti on whether by som e acc ident or other a mark rnight p ossibly lead to the identification of the voter. \V e think we ought to adhere to th e lnnguage of the Statute itself, which says that

the mark mu st be a mark by which the voter can (not rnighi possibly) be identified ; whether the mark is such, is a matter of fact." Som e absentee and ballot-papers born the initia] s or names of voters. His Honour having found, by comparison with th e sig natures of the voters on th e counterfoi ls and application s, that the voters w ere identifi abl e, rejec ted the votes under sec. l 5b (cl).

His Honour rejected oth er ballot-papers marked as follows :-With four crosses in squares, one or t wo of which were doubtfully obliterated. Wi th three crosses in one almost obliterated, and a diagonal line in a fourth sq uare. With three squares drawn in pencil in the blank space opposite names of candidates, and a sin gle line through each of these squares.

P os tal ballot-papers on which the elector had writ ten the names of tln'ee Senate candida tes and the name of the candid a te for the H ouse of Representatives in that division. A pos tal ballot-paper on · w l1ich the names "Dugald Aug ustus," the two Chri stian name s of the candidate Cro sby, w ere written, with those of tw o oth er candidates.

An absentee vot ing-paper which was Hpparently handed to t he el ector in the shape of three of such papers ad hering together by th e g um intend ed for the purpo se of sti ckin g them cl own after the vote is marked. Tbe to pmost of th e three was properly ini t ia le!l nnd the counter foil fill ed up, but the voter marked hi s vo tes on th e face of the lowest of th e three. H e ret nrned th em in that conclil ion, but the papers

did no t adh ere suffic iently to be trea ted as on e docum ent.

Upon the addi ti on of t he votes allowed, th e result was announced as foll ows :-Sy mon, 33,782; Russell, 32,000; V ardon, 31 ,640; Crosby , 3 1,638; Blundell, 31,560; Charleston, 30,768; Playford, 13, 11 3.

Vaughan.-There bein g a difference of only two vo tes between Cros by and respondent Vardon, and a great num ber of votes haYin g be en in Ya lida tecl by offi cial errors aHd de faults, th e ele ction of respondent must be declared voi d. (a) One vote for Crosby was illegally rejected at tl1e offi cial reco unt by the Divisional R eturning

Office r at Augas after it had been admitted at the first co unt a t th e Kapnnda coun tin g centre. The offic er co nducting a recoun t has no jurisdi ct ion to revie w the di sc retion of the coun tin g officer s in admitting votes as valid ;. a recount is not a re-scrui iny, but merely a mathematical checking of the res ult s. (b) The ordinary vot ing-papers, whi ch were rejected became they were initialed on the face and

nad not been so folded t ha t the iuiti::ds co uld be seen, were inva lid at ed by o ffi ci al default. Thes e were twenty-on e in number, and were su ffi cien t to t urn t he elec ti on . Tliis Co ur t would not be ju stifi ed in looking into the way the votes went on these papers, as they were in>al id. Chanter v . B lackwood (3). T he sam e principl es apply to the class of absentee a nd pos ta l votin g-papers ( 185 in number), which were left wholly uninitial ed by offi cia l defaul t. Moreo , er, if the Court decides to look int o the way that the votes

w en t on tl:lc improperl y initi aled papers, on which the bala nc e is on V ardon's side, then th e Court is also Lou nd to look into the uniui tialcd papers, 011 whi ch th e ba lnnce in Cros by's favour is more than enou gh io tu1n th e ba lance again st Vardon. These u nin it ialed pa pe rs are suffi ciently authentic, ns t hey must have good coun terfoil s on th em before th ey get in to th e co u nt ing -box: Heg nl ation 25. Therefore, i f the votes a re looked in to, Crosby woul d haYe bee n ' lected but f or o lfi cia l default; and if th e votes are not loo ked int o, t he whole bl ock of votes lllii SI be t rea ted neutral, a nd "'ould eq uall y cerrninly up se t

thi s election. Thi s class is augmented by a lnrge nu mbe r of voles wbich were rejec ted in An gas. Seco ndary evidence could be g iv en to p 1<; ve tl ntt now dest r oyed, \\'e re in validated by a n utliccr failing to initia l them.

(l ) 1 C.L.R. , 39 , at p. 52 . (3) 1 C .L. R. , 121, at p. 128.

(2) 4 & H. , 194 : per U awkins, .) . , at pp. 197-8.

22

May 27, 28, 30, ( ) s· I f 1

31; June 1. c mce t 1e inspection o t he valid votes has in so close a finish, t 1e destruction of the

Angas papers renders it necessary that there shonld be a new election, as it cannot be ascertained by judicial scrutin y whether the large number of informal there were rightly or wrong ly rejected.

Piper.-The cla im that one vo te was unlawfully revised at the Angas recount is only au inference drawn from a variation in the fignres. The p roper and innoce nt inference should be drawn that it was an arithmetical correction of a mistake in adLlit.ion . In any case, revision is proper at a recount of tbat k ind.

The Court may lawfully inquire in t.o the way th e votin g went on the t wenty-oue papers that were initialed on the front, and t hese merely serve to i11crease Vardon's majority. Such inqu;ry would not vi olate the secrecy of the ball ot : Woodward v . S a1·sons ( I ).

Chanter v. Blackwood (2) does not apply, becau se there t he wnngly admitted and wrongly excluded votin g- pa pers co ul d not be se parated ont from the good votes and co unted. B 11 t the Court cannot inquire. into the voting on the whol ly uninitia}ed voting-pa]Jers. T hese were never authentic papers, and th e Court cannot presnm e that it was by any llefault of an officer that they w ere left unanthenticated.

S ection 200 of the Electoml Act tluows the onus on the person attacking the validity of the e lection . to prove that it was th e error of office rs t hat affected the result of the ele•:tion. There i s no proof that t hese papers were ever authenti c ballot-papers or had genuiue co unterfoils attached . Ther efore these unauthenticated paper s cannot in any way be admi tted to t.he co nsideration of the Cou r t, either for inq uiry

as to the way the votes went, or as a neutral block of votes made invali d by official default.

BARTON, .T.-As to the one vote at An gas which was t he subject of argument on one important point. In t he t nrn the case has taken it is not necessary to d ec id e the qne8tion raised on this vote, w hether a recount if tli rected under sec. 161 (a) anthorizes a re vi sion of th e dec ision s of th e officers on the scrntiny as to t.he reception or r ejecti o n of votes. In view of th e terms of ser. 161 (a), sec. 160 (c) (d), sec. 119 (e) ,

(whe re t he word " count" was d early appli ed to an operation involving decision on a cla ss of ballot-papers up to t hat time nnopened), and Heg ulation 28, t h e qr1estion is a diffic ult one, and I should not as at present advised be prepar ed to hold tlmt the decisions of the officers at a firs t co unt or" scrutiny" cannot be r e-opened at a "recou n t." Tli e scru tin y is spoken of in the Act as a count, or a counting of the votes, and

the recount may b e confined to the ua ll ot-papers contai ned in any "parcel," whil e the votes rej ected as informal have, like the votes a ll owed, to be put up in pa rcels. But I t.hiuk t he question should a wa it decision on a fuller a rgument than was devoted to it here. A s to the question in oonuexi on with parcel A, the 21 ballot-pnper s initialed on the face in stead of t h e back, and as to which it does not appear that th ey were so fo ld ed that t he initial s could be seen by the Presiding Officer. This is a d ifferent case from t hat w it,b in C l1 anter v . Blackwood (2) of the 91 persons being a ll ow.-J to vote w ho bad no lawful title to vote at al l. They were s trangers to the election entirely, and bad thei r bal lot-papers been traf'.oabl o, their on ly effe ct on th e election would have been tha t each s uch false vote wonk! h a ,,e bee n deducted from the score of the oaudiclate fo r whom it purported. to h ave ueen given. As it wns impossiule to trace t hem , and as they of t hem selves outnumbered the peti­

tioner's majority on th e judicial recount, it could not be said that their iutrusion had not affected the resu lt. Cl ea rly it migl1t well have done so. In the presen t. instance the 2 1 votes in question w ere unqu es ti onably r ightly rejected at the poll a nd I have confirmed the rejection. That they were wrongly initialed was th e fault of the presidi ng

officer. Hall they been Hll o wetl; wo11ld Mr. Vartlon's majority have bee n converted into a minority? On a reotificntion of the votes a llow ed, Mr. Va rdon has a majorit y of two. Now there can be no breach of the secrecy of the bal lot in apportion ing these 2 1 votes. This is no t like the appli cati on refu sed by C . J., in th e case last cited, where it was sough t to refer ton pri vate sc rn tiny the applications for, and t he

co nnterfo il s t o, Ll1e posta l ba ll ot- papers there h eld to be i nva l id, so as to find out fo r · whom the hold e rs of these papers 'otecl. To y ield to that appli cation would have d isc losed for whom certain named in dividua ls YO ted, but i t was refused as an attempt to iDfringe the secrecy of the ballot. No such danger exists here. \ Ve a lready know how eac h one of these votes was cast., but we know nothing at all , and cannot know any thing, of the id entity of th e Yot ers. I ther efo re think we a re entitled to look ugain at t hese paper s to see whether they would have affected. present results had the presidin g officer done as the Act directed

h im and initial ed the pnpers on their backs. On an inspection I find that two of tbrm were for Mr. Vardon and non e for Mr. Crosby. So far, th e u, fr om affec tiu g the resu!L they would Lave in crea<:ed Mr. Vardon's majority to fo ur bad th ey been allowed . Kow com es t he very seri ous qu estion wl1eth er w e can loo k at a ll the totally uniuit ialed papers, 179 of wh icl 1 were the papers of what are call ed abse ntee voters, nn cl six were po stal ball ot-pnpers, anLl whether w e are to how th eir fac es show the r esu l t would have been affected, or are to take the whole 185

en bloc a nd say o i' th em thnt t hey necessa1 il y a1·oicl the election, as they may have affected its result. The qu es tion whether sec. 200 apj.>lies, that is, wh ether the error of the officerti is proved to have affected the result, is al so raised . I am s rr ti:!fi ed that I mn st lo ck at this as another se t of in stances in which YOtes have bP.en thrown away through the fault of offic ers in not doin g as t he Act ordains. H ere th ere we re uo initial; at all, in

facP. of th e and unm is takaule r equ ireme nt in the Sta tut o. Mr . .Piper' s arg ument as to authenticity is ingeui o 11s, but I cnoo ot lwlp rememuering that the re is no su ggestion that e ve n on e person who was not a qrmlified elect or wa s allow ed to CM't any of the votes lllld er review. A s they were all honest attempts to vote, it is cl ear I ran loo k at t.hem for the purpose of seeing wh eth er t hey would haYe affected the result hnd th e Court allow ed th em as valid .

1 t is mani fc 5t; that they \\' OL!ld have done so , and that Mr. Vardon's majority of t iY O over :Mr. Crosby would h:He been cmJv ert ed i11t o n minorit y of four. Therefore, unlike the :2 1 vo tes in parcel A, they (· e rtn inl y m ust have a ffec ted tl1 e a,11d 'o I ca11n ot a ppl y sec. 200. lt is depl ora ble tbat all this

l iti gation ami expense s houi L I ha 1·o l>ee H caused to perfec tly iHH oeent parties hy the fai lme of officials to

tl) L.R. 10 C.P. i 33 . (2 ) C.L. R. 121.

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attend to duties clearly la id clown in Statu te s, Regulations, and printed instructions. Had I a certain May 27, 2S, 30 power th e Con rt possesses in E ngland, I should cons id er whe ther i t 1vas not my dnty to ord er an offici al 31 ; June l. contri bution a t least to the coo ts. A s it is, having regard to sec. 205, sub-sec. (rrr. ), I mu st declare the election of Mr. V ardon

to have ueen a iJ soiLJtely void, a nd und er al l tl1 e cirC LJ rn stances, as the proceeLlings are du e to the clefanlt of tbe otl-i cers, I do Dot ord er costs. E ach party will bear hi s ow n. I s hould a dd that t.he inquiry has shown that the seats of Senator S ir J os iah S ymon a ml S enator Ru sse ll coL tld no t in a ny have been

s uccessfully ch allenged.

T he election of the respondent J oseph Var don dec lm·ed ab solu te ly vo id. Each party to bear his own co sts.

Solicitor for the petitioner, J. H. V(tughan .

Solicitors for the res pond ent (Josepl1 Vardon), Ball e1cell, Stow, and Piper. N.G.P.

His Honour J!Ir. Justice Barton desires me to say that this proof 1s a

substantially correct statement of his judgment as delivered.

APPENDIX C.

N. PILCHER,

Associate.

S ouTH AusTRALIA.

MY LORD,

Government H onse, A delaide. 13th July, 1907.

I have th e hon our to certify to Y our Lord "hi p in acconlance with Sec tion Fifteen of th e

Constitution Act th at a joint S itting of l.Joth H ouses of P arli amen t. of thi s State held on last

in of a M essage fr om me, chose the IIonontbl e Vin ce nt, O'L og hlin to All th e vacancy in

th e represcnt ntion of Sont h in the Commonwertlth 8 ena tc cnnsed by the dec is ion of tu e Court

of Disputed R eturns th nt th e election of a Senator on the 12th December, 19 06, was void iu respect of the returu of Mr. Joseph Vunlon. I have the honour to be, My Lord,

Your Excellency's most obedient servant,

His Excell enc y The L ord Northco te, G.C.M.G., G.C.I.E., C. l3 ., Goveruor-General of Australia.

(Sgd.) GEORGE I-t. LE HUNTE, Governor of So u th Anstralia.

Pl'inted and Published f.or the GoVERNru F.NT of the ComtOXII"E"!"Tn of A uSTRALU by J. KEMP, Actmg Government Pnnter for the State of V 1ctoria.