Page:Australian Electoral Commission v Johnston.pdf/24

Hayne J

admitting such evidence, it must determine whether records about earlier scrutinies of the lost ballot papers amount to such evidence.

Third, if the likely effect on the result of the election must be determined without regard to those records, the Court must decide whether the records could and should be considered for some other purpose and, if they can be so considered, whether it is necessary to do so for the purposes of determining any of these petitions.

Mr Wang and Mr Mead both submitted that the Court must first deal with their allegations of wrong decisions about reserved votes. They submitted that once it was shown that wrong decisions were made, the difference between the relevant candidates at the 50th exclusion point would be so large (in favour of Mr Bow) that it would be obvious that the result of the election would have been different and that the lost ballot papers could not or would not have altered the result that the candidates who should have been declared elected were Mr Wang and Senator Pratt. Necessarily implicit in the submission was the proposition that altering the decisions which the petitioners challenged in respect of about 250 ballot papers would swamp the effect of losing 1,370 ballot papers. That implicit proposition could be established only by making some assumption about what voting intentions were validly recorded on the lost ballot papers (or by relying on records of those intentions).

Both Mr Wang and Mr Mead went so far as to submit that, if the Court first determined the challenges to decisions about reserved ballot papers, the illegal practices constituted and occasioned by the loss of ballot papers would be shown not to have affected the result of the election. The "result" of the election referred to in these submissions appears to have been the result which Mr Wang and Mr Mead submitted should have been reached rather than the result which was declared. As already explained, s 362(3) requires that no order be made declaring a person who was returned as elected not to have been duly elected, or declaring an election void, unless the Court is satisfied that the result which was declared was likely to be affected. And the whole point of both Mr Wang's petition and Mr Mead's petition was to challenge the result which was declared, and obtain either a declaration that Mr Dropulich and Senator Ludlam were not duly elected (coupled with a further declaration that Mr Wang and Senator Pratt were) or a declaration that the election was absolutely void.

To the extent to which Mr Wang and Mr Mead allege that the loss of ballot papers constituted and occasioned illegal practices entitling them to any of the relief they claim, they must demonstrate that those illegal practices were likely to have affected the result of the election. Neither Mr Wang nor Mr Mead abandoned reliance upon the loss of ballot papers as constituting and occasioning illegal practices.