Page:Australian Electoral Commission v Johnston.pdf/12

Hayne J

Mr Wang and Mr Mead (and those who supported this aspect of their arguments) ask the Court to construct a result of the polling from a combination of scrutiny of votes on the re-count, consideration of some of the votes reserved in the course of that re-count and consideration of records made in the course of the original and fresh scrutinies about the lost ballot papers which should have been, but were not, included in the re-count.

The Act does not permit the construction of a result in that way. It is not now possible for the Court to combine the result of so much of the re-count as was undertaken (whether revised to correct what are said to be errors made with respect to some ballot papers, or not) with records made in the original and fresh scrutinies about the lost ballot papers. The results of the original and fresh scrutinies must be disregarded and the result of the election ascertained in accordance with a re-count conducted according to law. Ballot papers having been lost through official error, it is not possible to ascertain "the valid choice of the electors" by a re-count. The loss of the ballot papers (which constituted and occasioned contraventions of the Act) cannot be dismissed as immaterial.

The fifth and sixth candidates returned as elected (Mr Dropulich and Senator Ludlam) were not duly elected. It is not possible to determine who was duly elected because ballot papers have been lost. All parties rightly accepted that, if the Court declares that Mr Dropulich and Senator Ludlam were not duly elected, and cannot declare who was duly elected, the only relief appropriate is for the election to be declared void.

On 13 December 2013, I ordered that the three petitions were to be heard and determined together, with the evidence, findings of fact and decisions in one petition also being evidence, findings of fact and decisions in the others.

On the same day, I ordered that three questions of law be set down for trial separately from other issues raised by the petitions. Those questions are:

1. Did the loss of the 1,370 ballot papers between the fresh scrutiny and the re-count mean that the 1,370 electors who submitted those ballot papers in the poll were 'prevented from voting' in the