Page:Australian Electoral Commission v Johnston.pdf/31

Hayne J

that the witness was not permitted to vote. It is notable that s 367 uses the phrase "not permitted to vote" rather than "prevented from voting". It follows, and no party submitted to the contrary, that cases where an elector is not permitted to vote must be understood to be a subset of cases where electors are prevented from voting. The question then becomes how widely the set (of which s 367 is a subset) should be drawn. Mr Wang allowed cases where an elector is given the wrong ballot paper as a case of prevention from voting but drew no convincing distinction between such a case and other cases where an elector, through official error, submits a ballot paper which is not the subject of the determinative scrutiny.

In this case, where a re-count of some ballot papers was ordered, and the lost ballot papers should have been included within that re-count, the electors who submitted those ballot papers did not have their ballot papers included in the determinative scrutiny.

For these several reasons, the 1,370 electors who submitted ballot papers which were lost between the fresh scrutiny and the re-count were prevented from voting. The first separate question should be answered accordingly.

It follows from the proviso to s 365 that, in these petitions, where all the petitioners allege that the lost ballot papers were not included in the re-count "on account of the … error of, or omission by", an officer, "the Court shall not, for the purpose of determining whether the … error of, or omission by, the officer did or did not affect the result of the election, admit any evidence of the way in which the [electors whose ballot papers were lost] intended to vote in the election".

Would admission in evidence of the records about the lost ballot papers be evidence of the way in which electors who were prevented from voting "intended to vote in the election"?

Contrary to the submissions of Mr Wang, Mr Mead and a number of the respondents, admitting evidence of the records made at the original and fresh scrutinies about what voting intentions were validly expressed in the lost ballot papers would be evidence of the way in which those electors intended to vote at the election. It would not be evidence which would reveal how any identified or identifiable elector intended to vote and it therefore would not be evidence which broke the secrecy of the ballot. But once it is accepted that the prevention from voting with which s 365 deals extends to cases of the present kind, it follows that "evidence of the way in which the elector intended to vote" includes evidence revealing how electors whose ballot papers were not the subject of the determinative scrutiny intended (by their ballot papers) to vote.