Blundell v Vardon, was the first of three decisions of the High Court of Australia concerning the 1906 election for senators for South Australia. Sitting as the Court of Disputed Returns, Barton J held that the election of Anti-Socialist Party candidate Joseph Vardon as the third senator for South Australia was void due to irregularities in the way the returning officers marked some votes. The Parliament of South Australia appointed James O'Loghlin. Vardon sought to have the High Court compel the governor of South Australia to hold a supplementary election, however the High Court held in R v Governor of South Australia; Ex parte Vardon that it had no power to do so. Vardon then petitioned the Senate seeking to remove O'Loghlin and rather than decide the issue, the Senate referred the matter to the High Court. The High Court held in Vardon v O'Loghlin that O'Loghlin had been invalidly appointed and ordered a supplementary election. Vardon and O'Loghlin both contested the supplementary election, with Vardon winning with 54% of the vote.
The 1906 election On 12 December 1906 there was an election in South Australia to choose three senators, to sit from 1 January 1907 to 31 December 1912. The method of Senate voting at the time, referred to as block voting, set out in section 150 and 158 of the Commonwealth Electoral Act 1902,Commonwealth Electoral Act 1902 (Cth). 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, with support divided among the various candidates. + ResultsBlundell v Vardon (1907) 4 CLR 1463 at p. 1464. Candidate Party First count Second count Votes % Votes % Sir Josiah Symon Anti-Socialist Party 49.6 49.6 William Russell Labour Party 46.9 46.9 Joseph Vardon Anti-Socialist party 31,509 46.5 46.5 Dugald Crosby Labour Party 46.5 31,455 46.4 Reginald Blundell Labour Party 31,337 46.2 31,366 46.3 David Charleston Anti-Socialist party 30,615 45.2 30,608 45.2 Thomas Playford Protectionist Party 12,938 19.1 13,035 19.2 Total formal 203,346 203,325
After the first count, Crosby had a majority of just 16 votes. The electoral officer, at the request of Vardon, directed a recount,Electoral Acts 1902-5 (Cth) s 161A. 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.
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-Socialists had 16 seats, with the inclusion of Vardon. Thus the government could only expect a majority of votes, with the support of the Labour leaning independent from Victoria, William Trenwith, or the conservative senator from Tasmania, Henry Dobson, who was elected as part of the Tariff Reform party.
Blundell v Vardon 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.. 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.Blundell v Vardon (1907) 4 CLR 1463 at p. 1466.
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.Blundell v Vardon (1907) 4 CLR 1463 at p. 1467. 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. 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 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.
Appointment of O'Loghlin On 8 June 1907 the Attorney-General, Littleton Groom , set out that, in his opinion, section 13 of the Constitution, prevented a supplementary election being held, despite the words of s 205(iii) of the Commonwealth Electoral Act 1902. In his opinion the vacancy could only be filled, as a casual vacancy, by a joint sitting of the Parliament of South Australia in accordance with section 15 of the Constitution. In a subsequent opinion, the Attorney-General expressed a view that the original writ had been exhausted, that there was no power to issue a fresh writ and that in any event a fresh writ could only be issued by the governor of South Australia.
The governor of South Australia did not issue writs for a supplementary election and the Parliament of South Australia, led by Labour Party Premier Thomas Price, held a joint sitting in July 1907. Of the Labour Party candidates, Crosby had died and Blundell had been elected to the South Australian House of Assembly. O'Loghlin, previously a Labour Party member of the South Australian Legislative Council, was nominated. Vardon was also nominated, however the Parliament of South Australia appointed O'Loghlin. While the election was for a six-year term, because O'Loghlin was purportedly appointed to a casual vacancy under section 15 of the Constitution, he would only have held office until 30 June 1910.
The effect of the appointment of O'Loghlin was that the Protectionist Party, with the support of Labour had 19 of the 36 seats thus had a majority in the Senate without needing to rely on the support of Trenwith or Dobson.
R v Governor of South Australia; Ex parte Vardon 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. The governor argued, unsuccessfully, that the Commonwealth Attorney-General should not be permitted to intervene.While the Commonwealth Attorney-General was generally given leave to intervene in constitutional cases, the statutory right to intervene was not established until 1976 under the .
In a rare display of unity for the expanded court, 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. 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, 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). (2015) 36 Adelaide Law Review 1. 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.
Vardon v O'Loghlin Senate Committee of disputed returns O'Loghlin was sworn in as a senator and assumed his seat on 17 July 1907.. Vardon followed the lead of the High Court and petitioned the Senate against the right of O'Loghlin to sit, vote, and act as a senator pursuant to section 47 of the Constitution.. Section 47 provided that in relation to disputed elections : Until the Parliament otherwise provides, any question respecting the qualification of a senator or of a member of the House of Representatives, or respecting a vacancy in either House of the Parliament, and any question of a disputed election to either House, shall be determined by the House in which the question arises. Vardon's petition was referred to the Senate Committee of Disputed Returns and Qualifications, which consisted of two Labour senators, de Largie and Turley and five Anti-Socialist senators, Macfarlane, Colonel Neild, Sir Josiah Symon, Walker and Dobson.. The Committee sat in camera before tabling a report. The report emphasised the need for senators to be "directly chosen by the people", to which the appointment to fill a casual vacancy was the exception. The Senate seat had not become vacant, but rather it had never been filled. The Committee rejected any suggestion that the expense of a supplementary election should be a consideration. The two Labour senators provided an addendum to the report that the question could only be resolved by reference to the High Court.
There was lengthy debate in the Senate on the matter,. The Senate however did not decide to adopt or reject the report of the Committee, instead resolving, consistent with the addendum, that legislation be introduced to refer the matter to the High Court. Enabling legislation was subsequently passed by the Parliament, including a requirement that any hearing be in open court.The Disputed Elections and Qualifications Act 1907 (Cth)
Petition referred to the High Court Only Vardon and O'Loghlin were represented before the High Court. The primary argument put for Vardon before the High Court was the dominant requirement that senators be chosen by popular election. As the election of Vardon was void, he was never in office and the people were deprived of their choice. It was argued for O'Loghlin that, for reasons of expedition, convenience or economy, the Constitution postponed the direct choice of the people for an indirect choice through their representatives in State Parliament. Because Vardon had been sworn in as a senator and had assumed his seat, Vardon was a senator, as a question of fact. The declaration in Blundell v Vardon did not have effect until the date of the declaration.