Page:Australian Electoral Commission v Johnston.pdf/26

 election, admit any evidence of the way in which the elector intended to vote in the election."

Mr Wang and Mr Mead, and the respondents to the AEC petition other than Senator Ludlam, all submitted that the electors who had submitted the lost ballot papers were not prevented from voting; the AEC and Senator Ludlam submitted that they were. The central difference upon which the submissions hinged was whether "voting" should be understood as complete at the point an elector put his or her ballot paper into the ballot-box or should instead be understood as extending to the point where the ballot paper was considered in the scrutiny conducted to ascertain the result of the polling.

It may readily be accepted that an elector would, "on account of the … error of, or omission by, any officer", be "prevented from voting in [the] election" if an officer prevented the elector receiving a ballot paper to which the elector was entitled, or prevented the elector depositing the ballot paper in the ballot-box. But does the notion of "prevented from voting" stop at the point where an elector has done all that he or she can do to submit a ballot paper for consideration in the poll?

The preferable construction of the Act is that the reference in the proviso to s 365 to an elector being prevented by error or omission of an officer from voting in any election includes a case such as this where 1,370 electors were prevented, through official error, from having their ballot papers be the subject of the determinative scrutiny (in this case the re-count). There are several reasons to prefer this construction.

First, this construction of the provision follows as a matter of ordinary language. As the first, third and fourth respondents to each of the petitions rightly pointed out, to "vote" means to express or signify a choice. But contrary to the submissions of those parties (and others who adopted their submissions), "voting", when used in the collocation "prevented from voting", extends to taking account of the expression or signification of choice. That is, ask whether an elector has voted and the answer will direct attention to whether that person has done those acts which, as far as the elector can, express or signify the elector's choice to those who will decide the outcome of the poll. Hence, as the first, third and fourth respondents rightly pointed out, many of the provisions of the Act use the word "voting" or cognate expressions in a way which directs attention only to the conduct of an elector. So, for example, when s 220(c) forbids admission of persons to a polling booth after six o'clock "for the purpose of voting", the provision is directed only to what the elector would do, if admitted. But ask