Re Berrill's Petition [1976] HCA 50

High Court of Australia Gibbs, Stephen and Mason JJ. Re Berrill's Petition [1976] HCA 50

ORDER Petition dismissed. No order as to costs.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 1 Gibbs J.

I have had the advantage of reading the reasons for judgment prepared by Stephen J. and agree with them. I need add only a few brief remarks. The alleged illegal practices upon which the petitioner relies to invalidate the election were such that, if they occurred, they resulted in the wrongful removal of names from the electoral rolls. Their alleged effect was that the rolls used at the election were incorrect. In other words, although the petitioner did not acknowledge the fact, her petition challenges the correctness of the rolls used at the election. But s. 190 of the Commonwealth Electoral Act 1918, as amended, clearly forbids the Court to inquire into the correctness of any roll. If the name of a voter is wrongfully removed from the roll the voter has a remedy, but the wrongful removal cannot form the foundation of a petition under Pt XVIII of the Commonwealth Electoral Act.

The petition must be dismissed.

Stephen J.

The petitioner, Helen Therese Berrill, by her petition dated 25th February 1976 seeks declarations that no candidate returned or elected to the Senate in the State of South Australia in the election held on 13th December 1975 was duly elected, alternatively that that election was void. Certain interlocutory relief is also sought.

By her petition she alleges that in breach of provisions of the Commonwealth Electoral Act 1918, as amended, electoral registrars in the State of South Australia have, in specified circumstances, removed the names of electors from sub-divisional rolls; in consequence the names of very large numbers of electors are said to have been wrongly removed from the rolls. The petition goes on to assert the absence of any evidence that such electors became disqualified from being on an electoral roll, that they were ever re-enrolled or that they voted at the 13th December 1975 election; these assertions appear to be intended as allegations that the electors in question were not disqualified, have not re-enrolled and did not vote at those elections. Then follows an allegation that what the petitioner describes as "the prohibition from voting or the otherwise absence of persons from voting in the said election due to their non-enrolment" would have a variety of effects, which she specifies, upon those elections. The petitioner claims that the alleged removal of names is an illegal practice within s. 189(3) of the Act and goes on to allege that the election of the successful Senate candidates should be declared void; there follows the prayer for relief already referred to.