Blundell v Vardon

On 12 December 1906 there was an election in South Australia to choose three Senators,[lower-alpha 1] to sit from 1 January 1907 to 31 December 1912.[lower-alpha 2] The method of Senate voting at the time, referred to as block voting,[lower-alpha 3] set out in section 150 and 158 of the Commonwealth Electoral Act 1902,[8] to make a cross next to the name of the candidate. As there were three Senators to be elected, each voter was required to mark three candidates, so that the total formal votes is divisible by three to show the number of voters. On this occasion in South Australia the block voting system did not result in the usual landslide majority for one party,[7] with support divided among the various candidates.[9]

After the first count, Crosby had a majority of just 14 votes. The electoral officer, at the request of Vardon, directed a recount,[10] after which Vardon had a majority of 34 votes and the candidates declared to be elected on 8 January 1907 were Sir Josiah Symon, Russell, and Vardon.[11]

The political context in the Senate was that the minority Protectionist government, with the support of Labour, had 18 of the 36 seats while the Anti-Socialist had 16 seats, with the inclusion of Vardon.[12] Thus the government could only expect a majority of votes,[lower-alpha 5] with the support of the Labour leaning independent from Victoria, William Trenwith,[lower-alpha 6] or the conservative Senator from Tasmania, Henry Dobson, who was elected as part of the Tariff Reform party.[lower-alpha 7]

Blundell filed a petition in the High Court, seeking a declaration that the election of Vardon was void and that either Crosby or himself should be declared to have been elected. The petition set out various grounds of irregularity said to have occurred in relation to the election.[14] The petition initially sought to challenge the validity of the election of all Senators, including Senator Sir Josiah Symon and Blundell's party colleague Senator Russell, however he was given leave to limit the petition to only challenge the election of Vardon.[15]

The Court appointed the Deputy-Marshall to conduct a recount. During the recount, it was thought that the 9,000 votes cast in the Division of Angas had been accidentally destroyed. The missing votes were around 12.8% of the votes cast in the election.[16] It would appear however that these votes were later found, although it is unknown what, if any, effect these missing votes would have had on the recount.[17] The Deputy Marshall identified 828 votes of doubtful formality in several classes. The question for the court was whether the irregularities affected the result of the election. Barton J followed Chanter v Blackwood[18] that focused on the disputed votes and the size of the majority, hence the attention in the judgement to the few hundred irregular votes and not the 9,000 missing votes.

Barton J went through each class, accepting most as valid votes, with Vardon in third place in front of Crosby by just two votes. 21 votes had rightfully been rejected because the presiding officer had initialled the votes in a place where the initials could not be seen on the folded ballot paper. Those 21 did not affect the result as 2 were for Vardon and none for Crosby. There were 185 votes that were rejected because they had not been initialled. Had these votes been valid, Vardon's majority of 2 would have been a minority of 4. Barton J held that the missing 9,000 votes were not shown to involve errors that would have been sufficient to affect the seats of Senator Sir Josiah Symon and Senator Russell. The identified errors by Returning Officers did however affect the outcome of the election for the third seat. On 1 June 1907 Barton J declared the election of Vardon to have been absolutely void, by reference to s205(iii) of the Commonwealth Electoral Act 1902.[8][19]

Vardon applied to the High Court for a writ of mandamus compelling the Governor of South Australia to appear before the court to show cause why they should not be commanded to issue a writ for a supplementary election.[lower-alpha 8] The Governor argued, unsuccessfully, that the Commonwealth Attorney-General should not be permitted to intervene.[25]

In a rare display of unity for the expanded court,[26] the High Court gave a unanimous judgment, read by Barton J, in which it held that the Governor was acting in the capacity of the Constitutional Head of the State and as such, the remedy for a failure to act by the Governor was to be sought by the direct intervention of the Sovereign and not by recourse to a court of law. The Governor could not be commanded to do an act which he could only do with the advice of the Executive Council.[19] The Court held that the Governor of a State was not an office of the Commonwealth within the meaning of section 75 of the Constitution,[2] although nothing turned on this point as the High Court had jurisdiction to determine the question as a matter arising under the Constitution within the meaning of section 76(i).[23] The Court declined to express any opinion about whether or not there was a vacancy as this was a matter for the Senate under Section 47 of the Constitution.[27][lower-alpha 9]

In light of the High Court decision the question raised whether Vardon, O'Loghlin or Albert Palmer,[lower-alpha 10] were entitled to keep the allowances they had received whilst they sat in parliament. Groom KC, the Attorney-General, agreed with the opinions expressed by former Attorneys-General Drake,[35] and Higgins,[36] that a person whose election was void was not a member of the parliament during the period from election until the declaration and was not entitled to retain the amount paid by way of allowance.[37] After Vardon was elected on 15 February 1908, he sought payment of the allowance from when the vacancy occurred, 1 January 1907. Groom KC was of the opinion that Vardon was only entitled to the allowance from 15 February 1908.[38] The Parliament resolved the question by enacting legislation to legalise the payments that had been made to Vardon, O'Loghlin and Palmer.[39]

The prediction of Isaacs J as to the frequency of irregular senate elections was not borne out in that the only other successful challenge to the Senate election itself, rather than the eligibility of particular candidates, was in Western Australia in 2013.[40] By contrast there have been numerous appointments to casual vacancies in the Senate. The appointment of O'Loghlin remains the only occasion on which a matter has been referred to the Senate Committee of Disputed Returns and Qualifications.[41] 1908 is the only occasion on which a partial supplementary election has been held for Senate. This is because the introduction of the proportional representation system used in Senate elections since 1946,[7] was inconsistent with a partial supplementary election as it is likely to result in a distortion of the voters' real intentions.[lower-alpha 11] While the Commonwealth Electoral Act,[42] still provides for a partial failure of an election, the High Court held in Re Wood that a supplementary election for just one senate seat would be liable to frustrate the manifest purpose of the proportional voting scheme.[43]