JUDGMENT No. ORS p 1 CATCHWORDS ELECTIONS - Aboriginal and Torres Strait Islander Commission - Regional Council election - whether error of or omission by election officer did not affect the result of the election - whether just and sufficient to declare election void Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) ss.4, 100, 100A, 101, 104, 106, 110, 111, 113, 140, 141; sub-ss.101(a), 105(1), 106(3), 107(2), 113(3); paras.101(b)(i), 101(b) (ii); sub-para.141(2)(a) (iii); Schedules 2, 4; cll.1, 10, 12, 14 (Schedule 4); sub-cll.3(e), 10(2), 10(3), 12(3), 14(1) (Schedule 4) Commonwealth Electoral Act 1918 s.360 Regional Council election rules rr.2, 4, 25, 71, 73, 74, 76, 77, 78, 108, 130; sub-rr.73(4), 74(2), 76(1), 76(3), 78(3), 78(5), 92(2A); paras.71(9)(d), 92(4)(a), 92(2)(f£) Commonwealth of Australia Gazette Australian Electoral Commission v. Gordon et al., Unreported (Federal Court of Australia, 5 September 1994) Australian Electoral Commission v. Lalara et _al., Unreported (Federal Court of Australia, 27 September 1994) Australian Electoral Commission v. Towney et al., Unreported (Federal Court of Australia, 22 June 1994) Bridge v. Bowen (1916) 21 C.L.R. 582 Hudson v. Lee (1993) 177 C.L.R. 627 Kean v. Kerby (1920) 27 C.L.R. 449 Sykes v. Australian Electoral Commission (1993) 67 A.L.J.R. WASAGA v. Tahal (1991) 33 F.C.R. 438 IN THE MATTER OF A DISPUTED ELECTION UNDER THE ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION ACT 1989 AUSTRALIAN ELECTORAL COMMISSION V. BILLY LANDY AND TEDDY BILJABU AND ALLEN CHARLES AND COLIN PETERSON AND KEN FARMER NO. WAG27 OF 1994 LEE J. PERTH 22 DECEMBER 1994 29 DEC 1994 FEDERAL COURT OF AUSTRALIA PRINCIPAL REGISTAY IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION BETWEEN: JUDGE MAKING ORDER DATE OF ORDER WHERE MADE we eww NO. WAG27 OF 1994 IN THE MATTER OF A DISPUTED ELECTION UNDER THE ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION ACT 1989 AUSTRALIAN ELECTORAL COMMISSION Petitioner and BILLY LANDY First Respondent and TEDDY BILJABU Second Respondent and ALLEN CHARLES Third Respondent and COLIN PETERSON Fourth Respondent and KEN FARMER Fifth Respondent MINUTE OF ORDER LEE J. 22 DECEMBER 1994 PERTH THE COURT ORDERS AND DECLARES THAT: Each respondent was not duly elected. The election held on 4 December 1994 for the Western Desert ward of the Warburton region is absolutely void. The petitioner pay the costs of the respondents. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION ee ee ee ee ee NO. WAG27 OF 1994 IN THE MATTER OF A DISPUTED ELECTION UNDER THE ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION ACT 1989 BETWEEN: AUSTRALIAN ELECTORAL COMMISSION Petitioner and BILLY LANDY First Respondent and TEDDY BILJABU Second Respondent and ALLEN CHARLES Third Respondent and COLIN PETERSON Fourth Respondent and KEN FARMER Fifth Respondent CORAM: LEE J. PLACE: PERTH DATE : 22 DECEMBER 1994 REASONS FOR JUDGMENT This is a petition filed pursuant to s.140 and Schedule 4 of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) ("the Act") in which the Australian Electoral Commission ("the petitioner") seeks, inter alia, a declaration that a Regional Council election held under the Act, namely, the election of five Regional Council members for the Western Desert ward of the Warburton region, is absolutely void. Section 100 of the Act provides that Regional Council elections are to be conducted by the petitioner in accordance with the provisions of the Act and the Regional Council election rules ("the rules") made under s.113 of the Act. The rules, pursuant to s.100A of the Act, divide the Warburton region into three wards and fix at five the number of Regional Council members to be elected for the Western District ward. Under s.101 of the Act a person is entitled to vote at a Regional Council election only if that person is an Aboriginal person or a Torres Strait Islander whose name is on the Commonwealth Electoral Roll ("the electoral roll") and has a place of living, as shown on the electoral roll, within the ward in which the poll is held (para.101(b)(i)), or for whom an entitlement to vote is provided by the rules under sub- s.113(3) of the Act (para.101(b)(ii)). Sub-section 113(3) reads as follows: "113.(3) The rules may make provisions entitling Aboriginal persons and Torres Strait Islanders to vote at Regional Council ward elections even if those persons would not be entitled so to vote pursuant to subparagraph 101(b)(i) and, without limiting the generality of the foregoing, may make provision in relation to the following matters: {a) the determination of the Regional Council ward election at which a person is entitled to vote if: (i) the person's name is on the Commonwealth Electoral Roll; but (ii) pursuant to a provision of the Commonwealth Electoral Act 1918, the person's place of living or address is not shown on the Commonwealth Electoral Roll; (b) how a vote cast by a person is to be dealt with where: (i) the person was entitled to have his or her name on the Commonwealth Electoral Roll; but (iil) the person's name was not on that Roll because of a mistake by a person exercising powers or performing functions under the Commonwealth Electoral Act 1918; (c) the casting of a provisional vote by a person whose name does not, on the polling day, appear to be on the Commonwealth Electoral Roll; (ad) the circumstances in which a provisional vote cast pursuant to rules made under paragraph (c) is to be accepted." It does not appear that the power to make rules of the type provided for by sub-s.113(3) has been exercised and the qualification of an elector is as set out in sub-s.101(a) and para.101(b)(i). As required by ss.104 and 106 of the Act, the Minister for Aboriginal and Torres Strait Islander Affairs ("the Minister"), by notice in writing, fixed 4 December 1993 as the polling day for the 1993 round of Regional Council elections and duly published a copy of that notice in the Commonwealth of Australia Gazette. Pursuant to sub-s.106(3) of the Act, at the time of publication of the notice fixing a polling day, the Minister published his estimate that 1,200 Aboriginal persons or Torres Strait Islanders lived in the Western Desert ward and that 620 Aboriginal persons or Torres Strait Islanders would be entitled to vote at a Regional Council election for that ward. At the close of nominations for the 1993 round of elections, thirteen nominations had been received for election as the five Regional Council members of the Western Desert ward. Pursuant to sub-s.107(2) of the Act a poll was held for that ward on 4 December 1993 at appointed polling places. The four polling places appointed by the Electoral Commissioner pursuant to sub-s.105(1) of the Act included Nullagine and Wiluna. In respect of the polling place at Wiluna the presiding officer at that place had taken votes at a mobile booth which, pursuant to r.71, had attended at remote locations on 3 December 1994 to conduct the poll. By para.71(9)(d) rules relating to voter card envelopes applied to the taking of votes under r.71. On or about 4 December 1993 the Regional Returning Officer ("the returning officer") declared, pursuant to the rules, that the five respondents were the duly elected members for the Western Desert ward. By ss.108 and 109 of the Act voting in the poll was voluntary and by secret ballot. The manner in which votes are to be made and counted is set out in ss.110 and 111 of the Act which read as follows: "voting 110.{1) A voter shall cast a vote at a Regional Council election by marking the ballot paper so as to show the order of the voter's preference for the candidates. (2) A ballot paper is formal if and only ifs (a) the authorised electoral officer is satisfied that 1t is an authentic ballot paper; (b) at indicates the voter's first preference for one, and only one, candidate; and (c) it does not have upon it any identifying mark. (3) A ballot paper that is formal shall be given effect according to the voter's intention so far as that intention is clear. (4) In this section: "identifying mark" means writing or another mark by which, in the opinion of the authorised electoral officer, the voter can be identified, but does not include writing or another mark placed on the ballot paper {whether or not ain contravention of any law) by a person involved in conducting the election. Counting of votes and election of candidates 111. Votes cast at a Regional Council election shall be counted, and the candidate or candidates are to be elected, as provided in: (a) whichever of Schedules 2 and 2A applies; and (b) the Regional Council election rules." In respect of the poll for the Western Desert ward, Schedule 2 of the Act applied. Schedule 2 contained elaborate provisions for the fixing of a quota of the votes to be obtained for election to office and for the counting of preferences to ascertain which candidates had obtained a quota. In the poll for the Western Desert ward 383 persons were recorded as voters in that poll. At the counting of the votes only 235 votes were included in the count after the conduct of a preliminary scrutiny. Votes not included in the count included all ballot papers completed by electors at the polling places of Nullagine (20) and Wiluna (87 or 89) ("the excluded votes"). It was not in issue that the excluded votes had been so treated by the returning officer by reason of errors in the course of the poll committed by officers appointed by the petitioner, to act as presiding officers at Nullagine and Wiluna. The petitioner now contends that the errors committed by its officers permits the Court to exercise discretion it has been given under the Act to declare the five respondents not duly elected and to declare the election for the Western Desert ward to be absolutely void. The petition was filed in the A.C.T. District Registry of this Court on 2 March 1994. Pursuant to sub- cl.3(e) of Schedule 4 of the Act the petition had to be filed "within 40 days after the end of the election period". "Election period" is defined in s.4 of the Act as follows: "'election period', in relation to a round of Regional Council elections, means the period: (a) starting on the day when the Minister fixes a day or days for the polling in accordance with subsection 104(2); and (b) ending on the last day on which a poll is declared in relation to an election in that round of Regional Council elections;" By an affidavit filed by consent on 1 November 1994 it was deposed that the last day on which a poll was declared in relation to an election in the 1993 round of Regional Council elections was 21 January 1994 for polls held in wards of the Port Augusta and Ceduna Regions in South Australia. Therefore, 2 March 1994 was within 40 days after the end of the election period, albeit the last day of that period. (See: Australian Electoral Commission v. Lala et_al., Unreported (Federal Court of Australia, 27 September 1994, per O'Loughlin J. at 8-15.) By reason of the requirement of s.101 of the Act which conditions a person's entitlement to vote in a Regional Council election upon inclusion of that person's name on the electoral roll and upon that person being an Aboriginal person or Torres Strait Islander, the rules in r.73 have made provision for the issue to each elector attending to vote at the polling place on polling day of a "voter card envelope". Pursuant to sub-r.73(4) the presiding officer is to hand to a person intending to vote a ballot paper and a voter card envelope. Rule 74 requires the voter to "complete" the voter card envelope and hand the envelope to the presiding officer for signing. The rule does not state that the presiding officer is to hand the voter card envelope back to the voter but that requirement may be inferred from the content of succeeding rules. The voter card envelope is not a prescribed form. It is defined in r.2 as "a voter card envelope in the approved form". The "approved form" used in the 1993 round of elections comprised two printed sheets headed "VOTER CARD ENVELOPE" attached by an adhesive substance to a sealable pocket or envelope. The principal printed item on the two sheets was a declaration to the following effect: ", I am an Aboriginal person or a Torres Strait Islander . I am on the Commonwealth Electoral Roll . I have not voted before in this election." to be completed by the voter by signing in the space provided. The second copy of the sheet was in the same form as the first but was self-carbonising to record any details inserted on the first copy. Endorsed on the second sheet were the additional words "POLLING OFFICIAL ONLY", "COUNTERFOIL", "AFTER COMPLETING DETAILS REMOVE COUNTERFOIL AND FILE". The following words were endorsed on the sealable pocket or envelope: "INFORMATION FOR VOTER . In private, fill in the ballot paper. . After you have voted, fold the ballot paper and place it in this envelope. . Seal the envelope. Do not detach the voter card. . Hand the envelope to the Liaison Officer who will tell you what to do next. SECRET BALLOT This envelope will be separated from the voter ecard containing your personal particulars and placed with all other envelopes before the envelopes are opened and counted." Pursuant to r.76 the details completed by the voter on the first sheet become a record of the name of each voter casting a vote at the polling place (sub-r.76(1)) and the details recorded by imprint on the second sheet are intended to be the presiding officer's record of the name of each elector casting a vote at that polling place (sub-~r.76(3)). Both sheets are made detachable by perforations. The apparent but unstated intention of the rules is that the "counterfoil" is to be removed by the presiding officer when the envelope is handed to the officer by the elector pursuant to r.74 and that the first sheet ("voter detail slip") remain attached when the voter card envelope is handed back to the voter by the presiding officer. Rule 77 states the procedure to be followed by a voter upon the receipt of the ballot paper. The voter must retire alone to mark his or her vote, fold and insert the - ll - ballot paper into the voter card envelope, seal the envelope and present the envelope to the liaison officer. The liaison officer, pursuant to r.78, must decide whether, on the balance of probability, the voter who has presented a voter card envelope is an Aboriginal person or Torres Strait Islander and if the officer decides that the voter is not an Aboriginal person or Torres Strait Islander the liaison officer is to "annotate" the voter card envelope 'to that effect" but otherwise is not to mark the envelope (r.78(3)). The liaison officer must then hand the voter card envelope back to the voter who is required to deposit the envelope in the ballot box: (r.78(5)). The rules intend that the voter's declaration on the first sheet remain attached to the envelope containing the ballot paper until the returning officer separates the sheet prior to the counting of votes under para.92(4)(a). At the close of the poll the ballot boxes from Nullagine and Wiluna were forwarded to the returning officer to conduct a scrutiny and count of the votes pursuant to the rules. The Nullagine ballot box held 20 sealed voter card envelopes and 20 detached voter detail slips. Because the voter detail slips had been detached from the voter card envelopes all votes were excluded from further scrutiny and from the count. It should be noted that the counterfoils had - 12 - been correctly removed at the time of voting and retained by the presiding officer as the record required to be kept by him pursuant to sub-r.76(3). The Wiluna ballot box contained 87 sealed voter card envelopes and 89 loose ballot papers. All voter detail slips had been detached and apparently sealed inside the voter card envelopes. Pursuant to a subsequent order of this Court, made by consent, the voter card envelopes from that ballot box were opened and it was confirmed that the voter detail slips were contained therein. One counterfoil had been placed in a voter card envelope and the original of that counterfoil had been placed in a blue envelope for storing spoilt material. The other 86 counterfoils were correctly retained by the presiding officer and placed in a folder provided for that purpose by the petitioner. There was no explanation for the 2 extra loose ballot papers in the ballot box. Affidavit evidence was led by the petitioner to establish the number of voter detail slips that would have passed the preliminary scrutiny which determined qualification to vote had the votes not been excluded because of detachment of the voter detail slips from the voter card envelopes. In relation to Nullagine, of the 20 votes excluded 19 would have passed the preliminary scrutiny and have been eligible for inclusion in the count. As to Wiluna, 50 or 51 of the 87 voter detail slips contained in the ballot box would have passed the preliminary scrutiny. It was said that another 17 voter detail slips from the Wiluna ballot box had not been duly completed and would have been rejected for that reason. It must be assumed that none of those slips was able to be saved by the operation of sub-r.92(2A) which provides as follows: "92.(2A) A voter card envelope must not be rejected at the preliminary scrutiny solely because paragraph (2)(f) has not been complied with if, before the declaration of the poll, the Regional Returning Officer for the region containing the ward certifies that the name of the elector appears on a record of voters made by a presiding officer under subrule 76(3)." Paragraph 92(2)(f) requires the returning officer to put aside voter card envelopes that are not signed and dated by the issuing (presiding) officer pursuant to sub-r.74(2). The non-compliance with para.92(2)(f) referred to in sub- r.92(2A) must be the non-completion of the voter detail slip by the presiding officer. Pursuant to cl.10 of Schedule 4 of the Act the Court has the following powers in respect of an election petition: "10. (1) The powers of the Court in trying an election petition, include, but are not limited to, the following powers: be Also relevant to the hearing of this petition are (e) to declare that any person who has returned was not duly elected; (£) to declare any candidate duly elected who was not returned; {g) to declare the election absolutely void; {h) to dismiss or uphold the petition in whole or in part; (3) to make any order, or give any direction, that the Court thinks 1s necesssary convenient for the purpose of giving effect to any declaration or other decision of the Court in the proceedings; (k) to award costs; (2) The Court may exercise all or any of its powers under this clause on such grounds as the Court in its discretion thinks just and sufficient. (3) Without limiting the powers conferred by this clause, 1t is hereby declared that the power of the Court to declare that any person who was returned was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connection with the election. 14 of Schedule 4 which provide: "12. (1) If the Court finds that a candidate at an election has committed or has attempted to commit bribery or undue influence, the candidate's election, if he or she is a successful candidate, shall be declared void. (2) No finding by the Court shall bar or prejudice any prosecution for any illegal practice. (3) The Court shall not declare that any person returned was not duly elected, or declare any election void: c11.12 and (a) en the ground of any illegal practice committed by any person other than the candidate and without his or her knowledge or authority; or (b) on the ground of any illegal practice other than bribery or corruption or attempted bribery or corruption; unless the Court 18 satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void." (The term "illegal practice" is defined in cl.1 of Schedule 4 as "a contravention of this Act, Regional Council election rules or the zone election rules".) "14. (1) No election shall be avoided on account of any delay in the declaration of nominations, the polling, or the declaration of the poll, or on account of the absence or error of or omission by any officer which did not affect the result of the election. (2) Where any elector was, on account of the absence or error of, or omission by, any officer, prevented from voting in any election, the Court shall not, for the purpose of determining whether the absence or error of, or omission by, the officer did or did not affect the result of the election admit any evidence of the way in which the elector intended to vote in the election." The petitioner seeks an order under sub-cl.10(2) on the ground that the election process conducted by the petitioner miscarried through errors or omissions by the petitioner's staff at Nullagine and Wiluna which errors or omissions had the effect of excluding from the count all votes able to be included in the count cast at two of the four appointed polling places. The petitioner relied on sub- - 16 - cl.14(1) to say that detachment of the original voter detail slips from the voter card envelopes was an error or omission by a polling official in respect of which it could not be concluded that the result of the election had not been affected. The petitioner also relied on the common law in relation to avoidance of elections to submit that there had been such a substantial defect in the election process by reason of the errors of the officers that the will of the majority seeking to duly exercise their franchise could not be Said to have been ascertained and determined in the result as declared. The petitioner expressly declined to rely on sub- c11.10(3) and 12(3) of Schedule 4. The petitioner did not claim that an "illegal practice" had been committed in connection with the election nor that a contravention of the Act or rules had occurred. It is, therefore, unnecessary to consider the meaning of the term "illegal practice" as used in the Act other than to say that the context of the Act may permit the submission that the term has a narrower meaning than that applied to like terms used in other statutes which provide for the review of the conduct of elections. (c£. Hudson v. Lee (1993) 177 C.L.R. 627; Sykes v. Australian Electoral Commission (1993) 67 A.L.J.R. 714.) -17 - If determination of this matter rested upon consideration of the error that occurred at the Nullagine polling place, I would have adopted the exercise of the Court's powers applied by Foster J. in Australian Electoral Commission v. Gordon et al., Unreported (Federal Court of Australia, 5 September 1994) and in Australian Electoral Commission v. Towney et al., Unreported (Federal Court of Australia, 22 June 1994) and ordered that an appropriate forensic test be undertaken to match the voter detail slip with the voter card envelope to identify the voter card envelope to be excluded from the count and ordered that the votes cast at the election be recounted by including the 19 votes cast at Nullagine. If all 19 votes were formal votes, the number of votes included in the count would be increased from 231 to 250 and the quota of votes required by a candidate for election to office would be increased from 39 to 42. It may be noted that of the 235 votes admitted to the count by the returning officer only 4 had been informal. However, no step can be taken to correct the procedural error that occurred at the Wiluna polling place to enable the 50 or 51 votes that should have been included in the count to be so included. Unlike A.E.C v. Gordon where further orders could be made because the secrecy of the ballot remained intact and it was possible to identify the ballot papers for which voter detail slips had passed the preliminary - 18 - scrutiny, the ballot papers in this matter had not been placed in the voter card envelope and the forensic exercise followed in A.E.C. v. Gordon is not available. The breadth of the discretion provided to the Court under sub-cl.10(2) and the words used in sub-cl.14(1) of Schedule 4 suggest that the Court may declare an election to be void if it is just and sufficient for the Court to do so. Sub-clause 14(1) limits that discretion if the evidence before the Court establishes that the result of the election was not affected by the error of an election officer. However, if according to the evidence the result of the election "could" or "may" have been affected by reason of that error, there is no fetter on the Court's discretion. (See: A.E.C. v. Towney at 6-7.) It is to be noted that sub-cl.12(3) of Schedule 4 limits the Court's discretion to declare an election void on the ground of any "illegal practice" unless the Court is satisfied that the result of the election was likely to be affected and that it is just that the election should be declared void. That is, the power of the Court to avoid the election only becomes available if there is evidence to establish the likely effect of the illegal practice. (See: A.E.C. v. Lalara, at 18-20; WASAGA v. Tahal (1991) 33 F.C.R. 438 per Spender J. at 448.) - 19 - In WASAGA v. fYahal Spender J. was obliged to consider the operation of both sub-cll.12(3) and 14(1) on the facts of that case. His Honour found that no error or omission occurred within the meaning of sub-cl.14(1) but the occurrence of an illegal practice as defined in cl.1 of Schedule 4 had been established on the evidence. Therefore, the exercise of the discretion to declare the result of the election be void turned on whether his Honour was satisfied that the result of the election was likely to be affected by the illegal practice. In passing (at 447) his Honour suggested that it would not be sufficient to attract the operation of sub-cl.14(1) to show that the result of the election "may" have been affected by the error or omission and referred to the remarks of Isaacs J. in Bridge v. Bowen (1916) 21 #C.L.R. 582 at 613 for support for that view. Whatever circumstances sub-cll.12(3) and 14(1) are intended to address, I am satisfied that the following comments by Isaacs J. in Kean v. Kerby (1920) 27 C.L.R. 449 at 458 in another context provide the approach to be taken to ascertain the construction to be applied to sub-cl.14(1): "The Australian Act differs very considerably from the English legislation in several respects relevant to this case. Particularly I refer to the duty of the Court in the case of official errors. In England it is enacted that no election shall be declared invalid by reason of non-compliance with the election rules or mistake in the use of the forms, if 1t appears to the tribunal (1) that the election was conducted in accordance with the principles laid down in the body of the Act, and (2) that such non-compliance or mistake did not affect the result of the election. In other words, if the matter is left so that the mistake may have affected the result, the election may be declared invalid. Under our Act ut us different. By sec.194 it is provided that 'No election shall be avoided...on account of the...error of any officer which shall not he proved to have affected the result of the election. '" Although the provisions of Schedule 4 mirror the statutory provisions contained in s.360 et seq. of the Commonwealth Electoral Act 1918, considered in cases such as Sykes and Hudson, if a provision such as sub-cl.14(1) is the only foundation relied upon for the exercise of powers under cl1.10, it must be considered according to its terms. It is not necessarily the case that circumstances attracting the operation of cl.14 must also amount to a contravention of the Act or rules and constitute an illegal practice under sub- ¢1.12(3). For example, in the present matter the acts or errors relied upon by the petitioner, namely, detachment of voter detail slips from voter card envelopes, does not constitute a contravention of the Act or rules. It may be speculated that there may have been a departure from written directions provided by the Electoral Commissioner pursuant to r.4 to the officers with respect to the performance of their functions and exercise of their powers under the rules but the - 21 - Court has no evidence in that regard. The petitioner's reluctance to rely upon sub- c1.12(3) in this matter may be understood when regard is given to the provisions of r.108 of the rules which reads as follows: "108. A person who, being an officer, contravenes: (a) a provision of these Rules for which no other penalty is provided; or (b) a direction given to him or her under these Rules; 18 guilty of an offence punishable on conviction by a fine not exceeding $1,000." Therefore, unless I am satisfied that the error or omission which occurred at Wiluna and caused 50 or 51 votes to be excluded from the count did not affect the result of the election, I must consider whether the discretion to avoid the election should be exercised and whether such an order would be just and sufficient. To be "sufficient" it is necessary for the order to be appropriate in all the circumstances. In this matter where the quota for election, with or without the Nullagine votes, is low and the margins between the votes obtained by excluded candidates and between the votes obtained by the last excluded and last elected candidates are narrow, it is not possible to say that the ~ 22 - errors or omissions described did not affect the result of this election. Notwithstanding that caution must be exercised before making an order to avoid an election particularly when disruption of the conduct of the affairs of a Regional Council would follow, I am satisfied that in this matter it is just and sufficient that an order be made that the election be declared absolutely void, being satisfied that the integrity of the election process to be conducted under the Act would be diminished and the respect of electors for that election system put at risk if such an order were not made. The effect of the errors or omissions by the petitioner's staff at the Wiluna polling place disenfranchised all voters at that polling place, being voters drawn from a substantial area of the ward. The fundamental nature of the flaw in the election conducted by the petitioner was acknowledged by the petitioner in lodging this petition. The Act and rules do not contemplate an order being made to declare some, but not all, of the number of candidates required to be elected to have been elected by which the election may be taken to have partially failed. (cf. rr.25 and 130.) Therefore, the only order that may be made is to declare the election for the Western Desert ward of the Warburton region to be absolutely void. Pursuant to r.130 the - 23 - question whether there is to be a further election for the ward is to be determined by the Minister. There will be an order that the petitioner pay the costs of the respondents. With the benefit of hindsight it may not appear to be surprising that the rules relating to "voter card envelopes" and the poll procedures were found to be unclear and caused confusion at more than one polling place in the 1993 round of Regional elections. A number of election petitions were lodged. No doubt in performing its duties under sub-para.141(2)(a)(iii) of the Act the Review Panel appointed under s.141 of the Act will make recommendations to address the problems revealed in this and other petitions. I certify that the preceding twenty-three (23) pages are a true copy of the Reasons for Judgment of his Honour Justice Lee. Associate: d ' Puke lorch Date: 22 Rocowhos \aqga . - 25 - APPEARANCES Counsel for the Petitioner: J.D. Allanson Solicitor for the Petitioner: Australian Government Solicitor Counsel for the First, Second, Third, Fourth and Fifth Respondents: P.J. Vincent Solicitors for the Respondent: Newton Vincent Date of Hearing : 4 August 1994 Date of Judgment: 22 December 1994