Page:Australian Electoral Commission v Johnston.pdf/28

Hayne J

Third, the preferred construction of the provision is consistent with its legislative history and what was, at the time of its enactment, its established meaning.

The provisions which now appear as s 365 of the Act were brought into their present form by amendments made by s 25 of the Commonwealth Electoral Act 1922 (Cth). Section 26 of the 1922 Act inserted what is now s 367 precluding admission of evidence of a witness that he or she was not permitted to vote unless the witness satisfies the Court (in effect) that he or she had claimed to vote and had complied with the requirements of the Act and the regulations relating to voting as far as permitted to do so.

These amendments to the Act were made after (and in consequence of) the decision of Isaacs J in Kean v Kerby. In that case, Isaacs J had admitted evidence from electors who through official error had not been permitted to submit a ballot paper that each had intended to vote for a particular candidate. But Isaacs J had admitted this evidence because the Act then provided that no election should be avoided on account of the error of any officer "which shall not be proved to have affected the result of the election". Isaacs J observed that in this respect the Act (as it then stood) differed from equivalent English electoral legislation which had been held to provide, in effect, that an election could be declared invalid if official error may have affected the result. Isaacs J concluded that, in order to prove that official error had affected the result, "[t]he error of refusing a vote to a qualified elector, if it is to have any weight at all, must be accompanied with proof as to how the elector intended to vote".

The 1922 Act amended the Act in the respects which have been described for the stated purpose of bringing the law into line with English law. The