Page:Australian Electoral Commission v Johnston.pdf/10

Hayne J

ballot papers. That category related to about 96 per cent of the votes that had been cast at the election. During the course of the re-count, it emerged that 1,370 ballot papers considered in both the original and fresh scrutinies had been lost and could not be included in the re-count.

By its petition, the Australian Electoral Commission ("the AEC") alleges that the result of the election was affected by the loss of the ballot papers and seeks an order declaring the election absolutely void. Mr Zhenya Wang (a candidate at the election) petitions for orders declaring that the fifth and sixth persons returned as elected (Mr Wayne Dropulich and Senator Scott Ludlam) were not duly elected and declaring that Mr Wang and Senator Louise Pratt were. In the alternative, Mr Wang petitions for an order declaring the election absolutely void. Mr Simon Mead (a person qualified to vote at the election) petitions for the same orders as those sought by Mr Wang.

Mr Wang and Mr Mead both rely on the loss of the 1,370 ballot papers but allege further contraventions of the Act constituted by what they allege were wrong decisions about ballot papers reserved during the course of the re-count for the decision of the Australian Electoral Officer for Western Australia.

In deciding whether to declare that persons returned as elected were not duly elected, or to declare the election void, the Court must be satisfied that the loss of the ballot papers was likely to have affected the result of the election that was declared. To make either form of declaration, the Court must also be satisfied that it is just to do so. And if any elector was prevented from voting in the election on account of an error of, or omission by, an officer, the Court may not admit, for the purpose of determining whether the error or omission did or did not affect the result of the election, any evidence of the way in which the elector intended to vote in the election.

These reasons will show that the electors who submitted the lost ballot papers were prevented from voting. The Court may not admit evidence of records about the lost ballot papers made following the original scrutiny or the fresh scrutiny in deciding whether the result of the election was affected by the loss of the ballot papers.

The number of ballot papers lost far exceeded the margin between relevant candidates at a point in the count determinative of who were the