Page:Australian Electoral Commission v Johnston.pdf/13

Hayne J

1. Is the Court of Disputed Returns precluded by s 365 or otherwise from admitting the records of the fresh scrutiny, or original scrutiny, that bear on the 1,370 missing ballot papers as evidence of the way in which each of those voters intended to vote, or voted, in the Election for the purposes of each of the petitions filed in the matter, including in so far as those petitions seek relief under ss 360 and 362?

2. On a proper construction of the Act, including the re-count provisions, is any further inquiry regarding the manner in which the [Australian Electoral Officer for Western Australia] dealt with the ballot papers reserved for decision pursuant to s 281: 1. permitted under any, and if so which, provision of the Act;

2. relevant to the disposition of any, and if so which, petitions before the Court of Disputed Returns;

3. necessary to the disposition of any, and if so which, petitions before the Court of Disputed Returns?"

Those questions should be answered as follows:

1. Yes.

2. The Court of Disputed Returns is precluded by s 365 from admitting the records of the fresh scrutiny and the original scrutiny that bear on the 1,370 missing ballot papers for the purpose identified in the proviso to s 365, namely, determining whether the loss of the ballot papers did or did not affect the result of the election. Further, the records of the original scrutiny and the fresh scrutiny that bear on those missing ballot papers are not admissible for the purpose of the Court determining that it should declare any candidate duly elected who was not returned as elected.

3. 1. Yes, s 281(3).

2. No.

3. No.

In order to understand the questions and the answers which are given, it is necessary to say something further about the relevant provisions of the Act and