FACTS Vs THE LAW

The Court of Disputed returns

The court by design, was one of a court of equity, where any candidate or voter could file his election dispute, with protections built in for those not of legal mind, section 106 clearly states “with out regard to legal forms and technicalities, the rules of evidence do not apply, and the court is to be guided by the good conscience and substantial merit of the case.

The Lawyers over the past 100 years have desecrated that whole notion, with the courts now wanting strict rules and onus of proof, with only 40 days for a petitioner to come up with essential facts that will invalidate and election, and those facts now going as far as limiting the argument one might choose to use.

The limitations on an action have gone as far as ensuring a general election can not be so disputed, opening the door to advanced fraud by well resourced and cashed up political aspirants.

If there be 1.1 million voters, one seems to need to have sworn testimony of over 1 half to ensure some elections have failed, and even in the light this could occur, the general election would still stand, there for guaranteeing the elected government can not in any event be dismissed.

Making matters worse the only source of undisputable evidence is in the hands of the respondent, the Electoral Commissioner, whose position in court is one of defending the electoral process, rather then defending the people’s most basic rights.

Where it has become interesting in my particular case, is that under section 104, I must spell out the facts of my case in the petition that would invalidate and election, so I chose to argue under the common law of elections, which is clear by previous determinations in that I must prove the election has strayed so far from the legislative provisions, that it has not been an election at law.

The problem that arises is that argument is kept for trial, and the petition facts must be capable of invalidating an election with out the inclusion of argument, what this means in lay terms, is that I can show many irregularities in the conduct of the election, and with out doubt can prove these occurred, breaching the very foundation of an election at law, or should I say comfortable with law.

The trouble arises that the facts individually of each irregularity in the conduct, could not in them self be capable of invalidating an election, catch 22, the petition may fail.

Issues with the roll, have been heavily reported, with many turned away, but the proof of such is held by the respondent, lost postal votes totaling over 17,000 seems not enough, and some 77 declared institutions that missed out on mobile polling services has not raised an eyebrow, people being denied replacement ballot papers, and those denied an absentee ballot are huge in numbers, to be honest the irregularities are numerous, and seem to be the result of inadequate education of both voters and polling booth staff.

The commissioner under section 8 of the Act, is to ensure both the conduct of the election and that the electorate is informed of their rights and obligations, simple things like the usual “how to vote guide” sent to every home, designed to educate voters on how to vote, posters in the polling booths on how to vote, and guides on where the preferences of candidates would flow, were no where to be seen.

The impact of this alone has had a huge effect on the election outcome, but only in argument rather than by way of facts in a petition, an example being that if an elector turned up to vote and found their name no longer on the roll, for what ever reason, they had a right to an absentee ballot paper, it seems not only did the voters not know this, neither did the polling staff, so of the 80,000 people that supposedly did not turn up to vote, many of them may have, and in most cases were denied their vote.

Those lucky voters that were on the roll and did cast a vote, are now receiving letters from the commission asking them why they did not vote, so something has gone wrong, that even I can not address.

Those that did know their right found some polling booths had simply run out of those ballots, so again voters were denied their right. Either way we look at the election it is hard to consider it has been conducted under the guide lines to ensure South Australian voters have had a fair go, it matters not what the outcome is, but that those that represent our future are chosen by the free will of an informed electorate.

Dirty tactics, foul play and discount democracy is not and will never be, what we should expect in the performance of our elections, and the right to dispute the outcome should be based solely on the merit of the case, rather than complexities of law, which does nothing more than empower those with the most resources and legal representation.

Mark

MARK ALDRIDGE