Page:Australian Electoral Commission v Johnston.pdf/11

Hayne J

successful candidates for the fifth and sixth Senate places. That margin was assessed on the fresh scrutiny to be 14 votes in favour of one candidate and, on the re-count of available ballot papers, 12 votes in favour of the other. Without evidence of the voting intentions recorded in the lost ballot papers, the conclusion that the result which was declared was likely affected by the loss of the ballot papers is inevitable.

It may be noted, however, that, if the Court could admit such records, three of the respondents to the petitions assert (and no other party denies) that the records would demonstrate that the result of the election was likely affected. Combining what was recorded about the lost ballot papers with what was ascertained in the re-count would have led to a different result.

The result of the election being likely affected by the loss of ballot papers, what orders should the Court make?

Mr Wang and Mr Mead (with the support of several other parties) submitted that the Court should use the records which were made about the lost ballot papers in the original and fresh scrutinies to decide that Mr Wang and Senator Pratt should now be declared to have been duly elected. These claims depend upon the petitioners demonstrating not only that Mr Dropulich and Senator Ludlam were not duly elected but also that the Court can and should decide who would have been elected if the re-count had been conducted in accordance with the Act.

The choice of senators must be made and ascertained in accordance with law. For present purposes, that means in accordance with the Act. The Act requires that the result of the election be ascertained by scrutiny of the ballot papers. Once a re-count was directed, the process of scrutinising the ballot papers which were to be re-counted had to begin afresh. There was not in the re-count, and there cannot now be, scrutiny of all of the relevant ballot papers to ascertain the result of the election. There was not then, and cannot now be, any opportunity for any of the lost ballot papers to be reserved for decision (in accordance with s 281) or for this Court to consider (in accordance with s 281(3)) any of the ballot papers which were reserved.