Page:Australian Electoral Commission v Johnston.pdf/27

Hayne J

whether an elector has been prevented by the error or omission of an officer from voting and the answer must look not only to what the elector has or has not done but also to what the officer has done. And what the officer has done is to be judged according to whether the expression or signification of choice has become available for consideration in determining the outcome of the poll.

Second, the preferred construction of the provision better reflects the constitutional purposes pursued by the Act than the competing construction would. As noted earlier, s 7 of the Constitution provides that "[t]he Senate shall be composed of senators for each State, directly chosen by the people of the State". Direct choice by the people is effected only by taking account of the choices expressed by "the people". If some of the choices expressed by the people are not taken into account in the determinative scrutiny, there is at least the possibility that the result determined does not give effect to the choice which the people sought to make.

"Choice" bears two faces. It refers to an elector's act of choosing. (And it is here that those parties who denied that electors had been prevented from voting would end the analysis.) But it also refers to those who are chosen. Direct choice by the people requires that the lawful expression of every voter's choice is taken into account in determining who has been chosen.

Reading the expression "prevented from voting" in the proviso to's 365 as encompassing cases such as the present reflects this understanding of the constitutional notion of direct choice. It does so by requiring the Court to determine whether official error affected the result of the election without regard to evidence of the voting intentions of relevant electors. More particularly, it requires the Court to decide whether the errors or omissions of an officer preventing consideration of the choices made by certain electors (regardless of what those choices were) were sufficiently numerous in the poll as a whole to have affected the outcome. By contrast, reading the proviso to's 365 as speaking only to cases where electors were prevented from depositing a ballot paper in the ballot-box would confine attention to only some of the cases in which, on account of official error, choices expressed by the people are not considered. And once the step has been taken (as it is in's 365) to require determination of the effect of official error on the result of an election without evidence about how electors intended to vote, its operation should not be confined to some cases where persons are denied the effective expression of their choice.