THE ELECTION PETITIONS
ROLLS NOT CONCLUSIVE VOTES OFDISQUALIFIED PERSONS NOT TO BE ALLOWED THE COURT'S DECISION
Yesterday tha Special Court of Supreme Court Judges delivered judgment trn the question of whether electoral rolls are or are not conclusive as to a ■arson's ability to vote. The Court decided that an Election Court can disallow votes of persons who are on the rolls, but are without the qualification ending them to be there '.The judgment does not say-that a Court can disallow :»:ie votes of qualified persons who were irregularly enrolled. ,-This decision concerns the Taumarunui and Hawke's Bay seats. At. the tearing of the Taumarunui petition it was stated in evidence that a number of 'enrolmont forms had been returned to the Registrar filled in, signed, and witnessed, but that in reality the attesting witness had not seen the claimant Sign the form. Tho question was raised as to whether the Election Court had £he power to disallow the votes of persons so enrolled. As a similar problem arose in Hawke's Bay atabout the same time, both Election Courts referred the jnatter to the Special Court. The CourFnas, in effect, decided that the votes of persons irregularly enrolled, as noted above, cannot be disallowed if the voters were qualified to vote, lit has also.indicated the classes of votes', which Election Courts must disallow..
Their Honours.on tie bench' were the Chief Justice (Sir Robert Stout),. Mr. 'Justice Edwards, Mr. Justice Cooper, Mr. Justice Chapman, and 'Mr. Justice Hoskibg. In the Taumarunui case Charles KenHall Wilson (Reform) had petitioned against the election of William Thomas' 'Jennings (Opposition). In the Hawke's Bay case Hugh M'Lean Campbell (Reform) had petitioned against the return of Robert M'Nab (Opposition). Counsel for Mr. Wilson was Mr. A. H. Johnstone, and for Mr. Jennings Mr. G. P. Finlay, with whom was Mr. 'J. D. Vernon. Mr. C. P. Skerrett, K.C., with whom were Messrs. H. B. Lusk and Wood, appeared for Mr. Campbell; and Sir John Findlay, K.C., gad Sir. P. Levi, represented Dr. M'Nab. The Questions at Issue. ' Respecting the Taumarunui petition, !the question for the Special Court was tot out by the parties as follows: — "At the hearing of the above election petition the petitioner led evidence to 6how that certain persons whose names appeared upon the roll of electors for the said electoral district, and who voted at the said election held on November 10, 1914,- were: "1. Aliens not naturalised. "2. Infante. "3. Persons who had not resided in New Zealand for the period of twelve months preceding the date of their registration. ■ "4. Maoris of full blood. <
. "5. Persons who had not resided within, the said electoral, district for the period required by law, being: (a) Those .who did not reside within the said electoral district for • the necessary, time prior to the date of their registration; ,<b)' those who wore lawfully registered ibut had removed from the said district, iand had not resided therein for the period of six months immediately previous to tie said election; (c) those who had not at any time resided within the said electoral district. . "6. Persons whose names were placed jupon the roll pursuant to claims which iwere not complete in all particulars or iduly signed as therein required. "The question for the decision of th« Court is whether the Election Court !upon a scrutiny is bound to disallow the .votes of such or any of the persons' proved to come within the foregoing classes to have voted at the said election." ,I'he parties concerned consented to State the Hawke's Bay case thus:— '"Upon the hearing of the above c-lection petition at Napier the respondent proposed. to_give evidence that certain persons who appeared as electors on the electoral roll of Hawke's Bay .and had .voted at the election oil December 10, 1914, were not residont within the electoral district at the time of and before the election, and the- parties agreed to State the following questions for the opinion of the Supreme Court: "Whether if a. voter's name is without fraud or wilful misconduct placed on the subsisting roll as an elector, although ho Idid not possess- the necessary qualifications, or is without fraud or wilful misconduct retained on the roll although ho had since .being placed on the roll lost or forfeited his residential qualification, the Election Court can under Section '186, Sub-section (f) of the Legislature lAct, 1905, disallow his vote at the election?"
He Court said that the main, question it had to consider was: What is the jurisdiction given to the Election Courts by sub-section (f) of Section 196 of the Legislature Act, 1909, which sub-section is as follows"Subject to this Act, the Court shall have jurisdiction to in- . quire into and adjudicate on any matter, relating to a petition in • auch manner as it thinks fit, and in particular, may at any time during the trial direct a recount or scrutiny of the votes given at the • election to which the petition refers, and shall disallow the vote of every person found guilty of aiiy corrupt or illegal practice, or whose flame has been illegally placed or rc- . tained on tho roll" ? • . A Brief Eleotoral History. In their judgment, Their Honours first of all referred briefly to the history of Now Zealand's olectoral legislation. "There has ever been in New Zealand for all . Parliamentary elections what .is called an electoral roll," the judgment said. "The qualifications Bavo from time to time varied, and the mode of registering or placing on the roll the names of persons entitled to', vote has changed, but there has ever been some kind of registration of qualified persons on a roll. It is not necessary to go far back in the history of our legislation, but commencing with our Electoral Act of 1893, it may be pointed out that in that statute the qualifications of persons entitled to vote were various." Persons having qualifications had to be registered before t'hey could vote, and they got on tho 101 l (1) by making, a claim and declaration, and (2) by the registrar of electors plaoing them there in the course' of carrying out his instruction "to make the roll r.s complete as possible." {Therefore, the important thing aimed at was to get qualified persons registered, for. only those registered could vote. It had to be assumed that this section had some useful purpose to serve. What could that purpose be if it were only to tell the registrar tbat he must put on the roll the names of persons who made claims and of whose qualifications he was satisfied? • A right to have his or her name r.n the roll was expressly given to every qualified person. Getting on the roll and being retained on 'the roll was a question of qualification or status. It was of tho qualification of thp pereon that the registrar has to be satisfied, and of the "right" of the person enrolled to have his name retained. The provisions of tho Act as to disallowance of persons voting even though oil the roll showed that it was a. want of qualification only that prohibited voting. What was struck at in offences created by the Act was the getting or keeping, of disqualified perj_
sons on the roll. Further, the questions, put to voters en asking to he allowed to vote dealt wholly with qualification. There was.no provision that if a. qualified porson had got oil the roll that he could be prevented from voting. Votes to be Disallowed. "The roll must, be of some service," continued the Court, "and the question arises, What effect has Sub-section (f) of Section 196 on the right to vote? The point is, What do the words 'illegally placed or retained on the roll' mean? We think that under this provision it is the duty of the Court, acting under it, to disallow the votes of every person found guilty of any illegal or corrupt practice (with which we are not concerned in this case), and aiso of every person whose name has been illegally placed or retained on the roll. In the first place, we are of opinion that the name of any person qualified to be registered on the roll on which his name appears, iB not by reason of bis tUim to be registered having been defective,- illegally placed on the roll, 'f he was then qualified, or illegally retained on the roll so. long as he remains qualified. By a defective claim wa mean any claim and declaration not -complying with' •ho requirements of the Act as rcr.irds fnim particulars, and due signature, but which' the Registrar has not rejected on that account."
The Court was of opinion that an Election- Court could disallow the votes of— (1) Infants., . (2). Persons who are not British subjects by birth,or naturalisation in New Zealand. (3) Maoris other than half-castes. (4) Persons of unsound mind. (5) Persons convicted as expressed. (6) Persons who have not resided in New Zealand for the requisite time. (7) Persons who have not resided in the electoral district for which they claim to vote for one month immediately preceding their registration on the roll of the district. " ' (8) Persons whose names are directed to be removed under Section 61 of tho Act of 1908, on proof that the necessary conditions were satisfied. (9) Persons whose names ought to have been erased under the provisions for purging the roll. - r (10) Persons disfranchised under the Defence Act. The Illegality Struck At. As to persons illegally placed' or retained on the roll, the Court said that the illegality could hardly be taken to denote merely, illegality on the part of the Registrar.' He could not properly be spoken of as illegally placing or retaining the name on the roll if he had no information to show it ought not to be there. Nor could it be taken to simply denote illegal retention by, action or inaction on the part of the person entered, for on. a redistribution of districts, or otherwise, his name might without his knowledge have been erroneously placed on the rcll of a district for which he was not qualified. It was obvious, therefore, that to cover the whole ground 6ome wider meaning must be given to the illegality referred to. The ground was adequately covered by holding it to mean illegality by reason of absence of the qualification to be on the roll in whatsoever way the placing ■on the roll or the retention on it had come about. By the express words of Section 49, it was only a person qualified to be registered who was entitled to be enrolled, or retained on . the roll. The illegality which was denoted was not the illegal act of either the Registrar or the person on the roll/ but illegality in being on the roll irrespective of, the Act or intent by whom or with which that result was brought about. - "What othar illegality can be suggested? It is said it must be a wilful breacli'of the law, or a knowing breach of the law. In, statutes where knowledge is made an ingredient, of an offence, the word 'wilfully' or 'knowingly usually appears. We may look at the aim of the statute. It is that only qualified persons'should vote, and it is a breach of the law if persons_ unqualified vote. This is, in our opinion, the illegality struck at, and though in one sense' it is an encroachment on the validity of the roll, still it must have some meaning and it is the aim. as has been said, of the statute to get only qualified persons to vote. The Acts of 1914, allowing .persons not on the roll to vote so long as .they are qualified, is some evidence of the desire of the Legislature to get all qualified to vote. If, then, an Election Court finds that a person who voted was not qualified, and could not have been entitled to be registered or to vote, then the Court must disallow his vote. It is in our opinion no answer that the Registrar in making up the roll for . a new- district has by mistake put him on tho wrong roll. Had he when put on no qualification to vote in the district, and has he still no qualification? If so, his vote must be disallowed. Section 44 provides for the disallowance of a vote 'where a qualification has been forfeited. ' Questions of costs were lett to tn« Election Courts to settle.
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Dominion, Volume 8, Issue 2441, 21 April 1915, Page 5
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2,094THE ELECTION PETITIONS Dominion, Volume 8, Issue 2441, 21 April 1915, Page 5
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