Page:Australian Electoral Commission v Johnston.pdf/19

Hayne J

Fishing and Lifestyle Party) and, in the case of Mr van Burgel, by votes wrongly accepted as cast for Mr Adrian Byass (No Carbon Tax Climate Sceptics).

According to the fresh scrutiny, at the 50th exclusion point Mr Bow had 23,515 votes and Mr van Burgel had 23,501 (a difference of 14 votes in favour of Mr Bow). All parties accept that if, at the 50th exclusion point, Mr van Burgel had more votes than Mr Bow (with the consequence that Mr Bow was excluded and his votes transferred in accordance with s 273), Mr Dropulich and Senator Ludlam (not Mr Wang and Senator Pratt) would have been the fifth and sixth candidates elected as senators for Western Australia.

Mr Dropulich and Senator Ludlam each requested a re-count. The AEO refused those requests. Senator Ludlam–and, later, Mr Dropulich–appealed to the Electoral Commissioner against the decision to refuse the requests for a re-count. On 10 October 2013, the Electoral Commissioner directed the AEO to conduct a re-count of a category of ballot papers submitted by voters in the election of senators for Western Australia. The category of ballot papers which was to be re-counted was described as:

"All the Senate ballot papers marked above the line together with those informal ballot papers that have been determined as obviously informal by Divisional Returning Officers in accordance with section 273A(3) of the Electoral Act."

The re-count related to about 96 per cent of the votes that had been cast at the election. The Electoral Commissioner gave as his reasons for ordering a re-count that "the criticality of the particular Senate candidate exclusion together with the small margin leads me to conclude that it is prudent to confirm the result in the interests of the electorate's confidence in the outcome".

During the re-count, 949 ballot papers were reserved for the decision of the AEO in accordance with s 281(1). Both Mr Wang and Mr Mead seek, by their petitions, to dispute some of the decisions which were made by the AEO in respect of reserved ballot papers.

In his petition, Mr Mead alleges that the AEO wrongly rejected at least 87 ballot papers and wrongly accepted at least 90 ballot papers, which affected whether Mr Bow or Mr van Burgel was excluded at the 50th exclusion point. In his petition, Mr Wang alleges that the AEO wrongly rejected at least 56 ballot papers and wrongly accepted at least 18 ballot papers, which affected the 50th exclusion point.