Page:Australian Electoral Commission v Johnston.pdf/21

Hayne J

If it were proper to take account of the information about the number of first preference votes given for each candidate and the total number of ballot papers rejected as informal which, following the fresh scrutiny, the relevant Divisional Returning Officers transmitted to the AEO in accordance with s 273(5)(d), and treat that information as accurately recording the effect properly to be given to those ballot papers which should have been, but were not, scrutinised in the re-count, the AEC calculates that Mr Bow would have been one vote ahead of Mr van Burgel at the 50th exclusion point. (Mr van Burgel would have had 23,531 votes and Mr Bow 23,532.)

On 4 November 2013, the AEO declared, under s 283(1)(a) of the Act, that the first to sixth respondents to the AEC petition were elected in that order. The declaration reflected the results revealed by the re-count, which had been conducted without the 1,370 lost ballot papers. That is, the result which was declared depended upon excluding Mr Bow at the 50th exclusion point.

On 6 November 2013, the AEO returned the writ for the election of senators for Western Australia to the Governor of Western Australia.

Section 360 of the Act gives the Court of Disputed Returns power to declare that any person who was returned as elected was not duly elected and to declare any election absolutely void. These powers may be exercised "on the ground that illegal practices were committed in connexion with the election".

"Illegal practice" is defined to include "a contravention of [the] Act". That expression means a failure to comply with a provision of the Act. The Court also has the power to declare any candidate duly elected who was not returned as elected. But it could not exercise that power in this case without first declaring that someone returned as elected was not duly elected.