Page:Australian Electoral Commission v Johnston.pdf/29

Hayne J

amendments which were made to what has now become s 365 hinged about the expression "prevented from voting".

In 1875, Lord Coleridge CJ had spoken of circumstances in which "an election is to be declared void by the common law applicable to parliamentary elections" as including cases where there was "no real electing at all" (original emphasis). His Lordship gave examples of there being "no real electing at all" where "a majority of the electors were proved to have been prevented from recording their votes effectively according to their own preference" by any of several specified causes. Those causes included cases of "fraudulent counting of votes or false declaration of numbers by a returning officer". And, of course, those cases are examples which depended upon the relevant electors having submitted their votes. That is, they are examples of cases in which, despite electors having submitted their votes, "a majority of the electors were proved to have been prevented from recording their votes effectively" (emphasis added). They were cases where (a majority of) electors were prevented from voting effectively by official error because the votes they submitted were not considered in determining the result of the election.

The first, third and fourth respondents to each of the petitions submitted that the reasons of Lord Coleridge CJ should be understood as distinguishing between "prevented from voting" and "prevented from voting effectively". Those respondents submitted that the former expression was used to refer only to cases in which an elector was not permitted to vote and that this, and this alone, was the meaning of the expression "prevented from voting" established by the decision.

There are two answers to these arguments. First, I greatly doubt that the reading of the reasons of Lord Coleridge CJ proffered by the first, third and fourth respondents is the preferable reading of what was written. Second, and more significantly, it is not how those reasons were understood in subsequent decisions of this Court. Those decisions, particularly Chanter v Blackwood and Bridge v Bowen, treated Woodward v Sarsons as establishing that an elector is