Senators, Recounts, and Burned Ballots in 1906

Here in Western Australia, we’ve been talking a fair bit about making electoral history.   However, it turns out that, a century ago, the papers were reporting a story with quite a number of similarities.

The most recent Australian Federal Election was held on 7 September 2013.  The count for the Western Australian Senate seats turned up four clear winners – three Liberal, one Labor – but when it came down to the last two seats, something rather unusual took place.  I’m not going to go into the intricacies of the Senate electoral system but in short, a difference of 14 votes between two minor parties (each with no chance of winning a seat themselves) determined the last two winners of the Senate election.

Following appeals by candidates to the Australian Electoral Commission, on 10 October the Commission declared a recount of over 1.2 million of Western Australia’s Senate ballot papers.  However, at some point in the count Commission officials determined that 1,375 votes were missing, announcing this to the public this on 31 October. Two days later, the outcome of the recount was announced, resulting in a change of the final two Senators to be appointed from Western Australia, due to a 26 vote turn-around at the critical point. Undoubtedly, this will end up in the Court of Disputed Returns, so while we’re all waiting to find out what happens next, let’s take a look back at 1906.

The 1906 Federal Election was held on 12 December and, as with the present case, the Senate results for one State – in this case, South Australia – came right down to the wire.  In fact, Mr. Joseph Vardon polled 14 votes fewer than Mr. Crosby, with ‘slight inaccuracies’ being detected in six out of seven polling places.

A recount of the votes was duly ordered by the Commonwealth Electoral Officer, as requested by Mr. Vardon, and Mr. Vardon was determined to have been elected over Mr.Crosby by a very slim margin.  Oddly enough, Mr Crosby died in February of 1907, but one of his running mates, Reginald Blundell, took the result of the election to the High Court on his behalf, requesting a second full recount.

However the story did not end there.  It turned out that the ballot papers for the division of Angas (one eighth of the total vote for the State) could not be found, and were declared to have been ‘unfortunately burned along with the waste paper’.

Burned votes aside, the recount also turned up the fact that 185 ballots had not been properly authenticated due to an error by officials – a number sufficient to have impacted the result of the election.  Whilst Vardon finished the recount with a two vote lead, the High Court ultimately decided that:

” …. while Mr. Vardon’s vote was still in a majority, a number of ballot papers, if admissible, would have given Mr Crosby, now dead, a majority but were rendered invalid by the default of a returning officer in not initialling the papers.”and that, since a full recount of the votes from Angas could not take place, the election was void.

At this point, the High Court, acting on the advice of several constitutional lawyers, stated that the vacant Senate seat should be filled by means of a joint sitting of both the South Australian Houses of Parliament.  Mr. Vardon, apparently not one to back down from a fight, procured his own legal advice.  He then went to the Governor to ask for a writ to be issued to allow for a new election, on the basis that the relevant section of the Constitution did not apply to an election that had never been completed, and so the vacancy could not be filled by a vote of Parliament.The Governor refused Mr. Vardon’s request for a writ, and Parliament – in what turned out to be a legally dubious move – selected a Mr. O’Loghlin to fill the vacancy.  Mr. Vardon petitioned the Senate in protest at this appointment, leading to legislation being passed that empowered the High Court to hear his petition.

Having considered the case, the Court agreed that the election of O’Loghlin was void, as Parliament had acted unconstitutionally in appointing a Senator to the vacant seat. However, the saga did not end there, since, in the middle of the case, the missing votes – remember those that had supposedly been burned? – turned up in the Gawler Post Office.  Whilst the discovery wasn’t relevant to the issue before the Court, the election having already been declared void, it was perhaps a fitting twist in the tale for a most peculiar year in South Australia.

And so, in early 1908 – over a year since the original Federal Election – a Special Election was held in South Australia with Mr. Vardon and Mr. O’Loghlin being the only candidates, resulting in the election Mr. Vardon won comprehensively with 53.7 per cent of the vote, finally taking his seat in Parliament.

A note: Whilst the 1906 happenings sound rather relevant to current events on an initial read, don’t get too excited.  The situation in South Australia in 1906 may not provide a guide for the Court in considering the current issue in Western Australia.  At the time, Senators were elected using a first past the post system, allowing for a two-candidate Special Election in 1908.  More distinguished writers than I have pointed out the Woods and Hill cases of the 1980’s and 1990’s as being more likely to influence the Court’s ruling, this time around.

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