Australians preparing to vote on Saturday 18 May have been reminded by Judith Brett in her recent book how unusual the compulsory Australian ballot really is. Tracing the evolution of the modern Australian electoral system Brett shows why we vote on Saturday, why we vote with a pencil, why we vote in a booth, why we must do it and what we may owe to this ritual in political stability and legitimacy of government, however much we whinge about the outcome and those who govern us.
Along the road to the secret and compulsory ballot it was necessary to build a system that was both independent of political interests and bureaucratic in its approach to rights and processes. Brett shows how much in that enterprsie we owe to a colonial South Australian public servant who shaped the mechanisms of electoral administration through to the early years of the Commonwealth.
The effective administrative design of the electoral system may be one of the reasons why the policing of elections in Australia more often involved police as clerks than constables. All the same criminal law was occasionally deployed in colonial Australia in aid of free and fair elections, certainly more often than in the twentieth century. In the century after colonial self-government nearly 250 people were prosecuted in the higher courts for a variety of offences against the electoral laws. 80% of these cases were tried before federation. The most common charges were those of impersonating a voter, or voting more than once. Sometimes there was clear evidence of collusion around a particular election, with groups of offenders prosecuted as a result.
These prosecutions of electoral offenders include some colourful characters as well as episodes that reflect deeper Australian stories. Prosecution in a higher court was a serious business. The consequences for those convicted might be heavy, including gaol time. The most severe sentence awarded for an electoral offence was also one of the earliest. On the Victorian goldfields in the 1856 election, the notioriously severe Judge Barry (of later Ned Kelly fame) sentenced a William Smith to prison following his conviction for impersonating another voter. Like many others in that turbulent decade Mr Smith had a number of aliases but claimed in defence that he was drunk on the day. Barry thought drunkenness an aggravation more than an excuse and sent Smith down for 3 years.
Smith was undefended, but not so Paul Keating who was indicted in 1861 for personating Ronald M’Donald in Victorian election for seat of Grenville. His lawyer Mr Barton contended that there was no evidence of the existence of the person in whose name Keating had voted. Returning officers and electoral clerks were called to show that the electoral roll recorded the name of Ronald M’Donald. The judge reserved the legal point but told the jury that ‘it was immaterial whether Ronald M’Donald was in existence or not’. On conviction, Keating was sentenced to 6 months in prison. A couple of months later the Supreme Court affirmed the conviction, and the integrity of an electoral roll as sufficient proof of the existence of a person who might be impersonated!
While most offenders prosecuted for colonial electoral offences appeared alone, the Crown’s interest in defending the integrity of elections was more evident in collective prosecutions of offenders whose actions pointed to well organised attempts at electoral fraud. Five men appeared on the same day in Central Police Court in February 1883 following a recent election in East Sydney. The evidence suggested that they had voted in the name of people on the roll who were long absent elsewhere, or even dead. One claimed he was drunk on the day, another appeared to reporters to be of unsound mind, or ‘pretending to be’. There was evidence of conspiracy by others not present among the accused – David Sullivan told the magistrate he was intoxicated and ‘someone fetched him in a cab from Woolloomooloo, and placing a card in his hands, told him to vote as he had attempted to do’. A couple of the accused were acquitted, but the others including Sullivan were convicted and sentenced to 6 months hard labour in Sydney gaol.
The history of electoral law is inseparable from the broader history of citizenship and the suffrage. In this way tracing electoral offences also brings to the surface other kinds of Australian history. Right at the outset of Federation we find in the New South Wales Police Gazette the record of an aboriginal man, Jimmy Tinker, arrested by police in Collarenenbri and charged in April 1901, not for voting in the election but for voting more than once. Regrettably perhaps, the Attorney General declined to continue the prosecution as we might have learned more about such an event. But the incident reminds us that just as NSW Aboriginal people lost their land twice over, once by invasion a second time by policy, so also they had lost the vote. Recent research has highlighted the way in which Aboriginal people were not originally excluded from the franchise in the self-governing colonies. The prosecution of Aboriginal worker Yellow Jimmy for personation in voting as James Johnson in an 1859 election in Armidale was notable for the limited attention to his Aboriginality. His acquittal was welcomed in a crowded courtroom ‘with an expression of satisfaction’, loud enough to earn the judge’s censure.
For all their interest as court-room drama the prosecution of electoral offences plays only a small part in the exercise of Australian democracy – and a miniscule part in the story of Australian criminal justice. Electoral law ends up more often and rightly so being the business of politics, and sometimes of constitutional law, in a place that Brett tells us is ‘very good at elections’.
16 May 2019
*Mark Finnane is Professor of History at Griffith University
 Brett, Judith Margaret. From Secret Ballot to Democracy Sausage: How Australia Got Compulsory Voting. Melbourne, Victoria: Text Publishing, 2019.
 Goodall, Heather. Invasion to Embassy : Land in Aboriginal Politics in New South Wales, 1770-1972. St. Leonards, N.S.W.: Allen & Unwin in association with Black Books, 1996.
 Parkinson, Naomi Gabrielle. “Impersonating a Voter: Constructions of Race, and Conceptions of Subjecthood in the Franchise of Colonial New South Wales, c. 1850–1865.” The Journal of Imperial and Commonwealth History (April 14, 2019): 1–24. https://doi.org/10.1080/03086534.2019.1596204. See also Evans, Julie et al , eds. Equal Subjects, Unequal Rights: Indigenous Peoples in British Settler Colonies, 1830-1910, 2003.