Page:Australian Electoral Commission v Johnston.pdf/32

Hayne J

The submissions that this reading of s 365 would lead to incongruent (perhaps even absurd) results should not be accepted. In particular, this reading of s 365 does not exclude any evidence in respect of any ballot paper which was the subject of the determinative scrutiny. It is not a reading of the provision which restricts in any way the Court's consideration of ballot papers which were included in the determinative scrutiny, regardless of whether, on that scrutiny, the vote recorded in the ballot paper was rejected or accepted. If ballot papers were rejected in that determinative scrutiny as informal, the electors concerned would not have been prevented, by official error, from having their papers considered in the determinative scrutiny. The proviso to s 365 would not be engaged and, because it would not be engaged, there can be no resulting incongruous or absurd application.

For these reasons, evidence of the records made at the original and fresh scrutinies about the voting intentions recorded in the lost ballot papers may not be admitted for the purpose referred to in the proviso to s 365. Whether the official errors relied on by the petitioners did or did not affect the result of the election must be decided without regard to that evidence.

Some attention was given in argument to whether anything turns on the use in s 362(3) of the expression "the result of the election was likely to be affected" but the use in s 365 of the expression "did or did not affect the result of the election".

Nothing turns on the use of these different expressions in the two provisions. Section 362(3) provides the relevant limitation on the Court's exercise of two of the powers given by s 360(1) and it is the text of s 362(3) which provides the content of that limitation. The Court must be satisfied that the result of the election was likely to be affected before making (and also satisfied that it is just to make) either of the specified kinds of declaration. By contrast, the proviso to s 365 regulates the evidence which may be admitted for the purpose of the Court deciding whether it is satisfied that the result was likely to be affected.

Some attention was also given to what is meant by "likely" in the expression "likely to be affected". Does it mean "more probable than not"? Does it include "substantial possibility less than probability"? Perhaps other expressions could be used to capture the various meanings referred to in argument but, for present purposes, the two meanings given capture the substance of the debate.

As already noted, without regard to the voting intentions recorded in the 1,370 lost ballot papers, the conclusion that the loss of those ballot papers probably affected the result of the election is inevitable. The conclusion follows