each elector to place an X against the name of their preferred candidate, rather
than crossing out the names of the others.^5
What does this history mean for the significance of this Australian‘first’?
The displacement by Australian ballot of the older‘American ballot’can be
construed as merely the substitution of government-printed ballots for the
private provision of ballots (Brent 2006). Yet this substitution is almost uni-
versally taken to be an obligatory accessory of a genuine election. Thus in the
mid-1850s, Australia, a society in which there had been no election for any
public position until just sixteen years before, appeared to suddenly overtake
the USA in the vigour of its pursuit of democratic process. That, however,
would be a very partial evaluation. For in the 1850s the USA was undergoing a
democratic revolution which Australia was never to be part of: the election of
judges. The 1849 constitution of the new state of California inaugurated the
election of judges, and between that date and 1913‘every new state entering
the Union embraced this scheme of selection, as did most of the previously
settled states’(Hall 1984, p. 347). By contrast, the Australian colonies’entire
engagement with this new front of democratization was limited to the Gold
Fields Act of 1855, which decreed that the tribunals to decide mining disputes
would be composed of nine persons elected by miners, along with the gover-
nor’s single nominee. But even this fairly minor excursion into democratic
judicial selection was‘swept away’just three years later by a new Act that
replaced the courts with appointed wardens (Birrell 1997).
Indeed, while South Australia was perfecting the secret ballot, a‘judicial
reign of terror’over her democratic legislature was being unleashed by the
‘antics’of the Chief Justice, Benjamin Boothby. After entering public life
through‘rabble-rousing’Chartist agitation, he had embarked on a legal career.
In a complex exercise of patronage by the Colonial Secretary, he was offered
an appointment to the Supreme Court of South Australia, which, in the face of
unsatisfied creditors, he accepted (Taylor 2013). He arrived in Adelaide in
1853, accompanied by a close-knit family group that included his eldest son,
William, who, it will be recalled, was to add thefinishing touch to the secret
ballot in 1858. Through‘a narrow, pedantic construction of the principles of
imperial constitutional law’Benjamin Boothby attempted to limit the powers
of the South Australian parliament (Castles 1969, p. 195). While he‘sat on the
bench, invalidity was always on tap, and freely and frequently he declared the
statutes of the local parliament to be repugnant, unconstitutional and void’
(Hague 2005, p. 220), including not simply the Real Property Act—of Torrens
System fame—but also, by implication, every Act passed by its conscientiously
democratic legislature since 1857. The ire and enmity provoked by this
(^5) New Zealand stuck with the procedure of crossing out unwanted candidates until 1990.
Australia’s Electoral Idiosyncrasies