Page:Australian Electoral Commission v Johnston.pdf/30

Hayne J

prevented from voting if the elector is prevented from voting with effect. In particular, Isaacs J explained in Bridge v Bowen that an elector is prevented from voting if, through official error, the vote which an elector submitted could not be counted. (Isaacs J distinguished between errors in performance of provisions of enactments requiring strict performance and other kinds of error but this distinction, if relevant to the Act as it then stood, need not be drawn for the purposes of the provisions at issue in these petitions.)

This being the state of the law as determined by this Court at the time of the 1922 amendments, there is no reason to conclude that "prevented from voting" was used in those amendments with some narrower meaning.

No party submitted that any later decision of this Court casts any doubt on this understanding of "prevented from voting". The parties did examine a number of decisions of State Courts of Disputed Returns which may be read as permitting, even depending upon, the adoption of a narrower construction of "prevented from voting" which would confine its application to cases where an elector was prevented by official error from submitting a vote.

The course of decisions in this Court, before the enactment of the 1922 amendments, provides a sounder foundation for construing s 365 than the later decisions of State Courts of Disputed Returns. Apart from the decision of Sugerman J in Campbell v Easter, it is not clear that all of those later decisions were made in the light of arguments which fully canvassed the relevant decisions of this Court (and the cases upon which those decisions were based) or referred to all of the decisions of other State Courts which had considered the question of construction. Further, in at least some of the State cases, it would appear that the issue agitated in the course of argument focused more upon preservation of the secrecy of the ballot than upon the more fundamental question of statutory construction and what is meant by "prevented from voting".

Finally, the preferred construction of the expression "prevented from voting" is consistent with what is now s 367 (also inserted in the Act by the 1922 Act), which regulates when the Court may admit evidence of any witness