Odgers' Australian Senate Practice Thirteenth Edition

Chapter 4 - Elections for the Senate

Right click over the text to activate a context menu for Odgers. (Note: on iPad Safari this function is activated by a finger press and holding down for several seconds.)


Formal voting in a Senate election

Following the 2008 decision of the Federal Court sitting as the Court of Disputed Returns, a series of principles have been set out by the Court to be applied to the consideration of the admission or rejection of ballot papers.[24] In summary, these principles are to (i) err in favour of the franchise; (ii) only have regard for what is on the ballot paper; and (iii) the ballot paper should be construed as a whole. Furthermore, the tests which apply to acceptance of a Senate ballot paper as formal are complicated because a Senate vote can be recorded either by numbering of preferences in the normal way or by recording a ticket vote. Additionally, a ballot paper may be accepted as formal even where the voter has erroneously attempted to record both types of votes. Thus three distinct cases may arise.

One possible case is the ticket vote recorded on its own. The voter is supposed to record such a vote by placing a single number 1 in one, and only one, of the squares printed in the ticket voting section in the top part of the Senate ballot paper. Specific allowance is made, however, for voters who deviate slightly from this requirement. A tick or a cross is accepted as equivalent to the number 1.

A second possibility is the preferential vote recorded on its own (on the bottom part of the Senate ballot paper). In this case, specific allowance is again made for voters who may have difficulty in fulfilling their obligations. A ballot paper is formal if:

  • a first preference is shown by the presence of the number 1 in the square opposite the name of one, and only one, candidate (ticks or crosses are not acceptable substitutes for a number 1 in this case); and
  • in a case where there are ten or more candidates, there are, in not less than 90 percent of the squares opposite the names of candidates on the ballot paper, numbers which form a sequence of consecutive numbers beginning with the number 1 without repetitions, or numbers which would be such a sequence with changes to not more than three of them; or
  • in a case where there are nine or fewer candidates, there are in all squares opposite the names of candidates on the ballot paper, or in all but one of those squares (which is left blank), numbers which form a sequence of consecutive numbers beginning with the number 1 without repetitions, or numbers which would be such a sequence with changes to not more than two of them.
  • A third case arises where the voter has tried to record both a ticket vote and a preferential vote. This case can be broken down into three distinct situations:
  • where the ticket vote and the preferential vote would each have been informal if recorded on its own, the ballot paper is informal;
  • where the ticket vote would have been formal if recorded on its own but the preferential vote would have been informal if recorded on its own, the ballot paper is formal and is treated as if the preferential vote had not been attempted; conversely, where the preferential vote would have been formal if recorded on its own, but the ticket vote would have been informal if recorded on its own, the ballot paper is formal and is treated as if the ticket vote had not been attempted;
  • finally, where the elector records a ticket vote and a preferential vote, each of which would have been formal if recorded on its own, the ballot paper is formal and is treated as if the ticket vote had not been attempted, that is, correct preferential numbering prevails over a correct ticket vote.

As noted in Chapter 6, upon the finding that Senator Wood had not been eligible to contest an election for the Senate in July 1987, it was determined that the place should be filled by counting or recounting of ballot papers cast for candidates for election for the Senate at the election. It was held "that the ballot papers for an election to the Senate, conducted under the system of proportional preferential voting prescribed by Part XVIII of the Commonwealth Electoral Act, for which an unqualified person was a candidate, were not invalid but indications of voters' preference for the candidate were ineffective"[25]


24. Mitchell v Bailey (No 2) (2008) 169 FCR 529.
25. Re Wood (1988) 167 CLR 145

Facebook LinkedIn Twitter Add | Email Print
Back to top