Page:Australian Electoral Commission v Johnston.pdf/34

Hayne J

convenient to deal at once with the possible caveat and notice a strand of argument which might be understood as seeking to support the admission of evidence about the records of the original and fresh scrutinies on a basis other than demonstrating entitlement to a declaration that Mr Wang and Senator Pratt were duly elected.

Some of the arguments about the admissibility of the records were expressed in terms which appeared to be directed to the application of the last clause of s 362(3), and its requirement that the Court not declare that a person returned as elected was not duly elected and not declare any election void unless the Court is satisfied that "it is just that the candidate should be declared not to be duly elected or that the election should be declared void". To the extent to which parties sought to support the admission of the evidence about the records of the original and fresh scrutinies on this basis, the argument should be rejected.

Without regard to the evidence of the records about the lost ballot papers, the Court can and should be satisfied, not only that the result of the election was likely to be affected by the loss of the ballot papers, but also that it is just that one or other of the forms of declaration dealt with by s 362(3) should be made: either that Mr Dropulich and Senator Ludlam were not duly elected or that the election should be declared void. As has already been noted, admission of evidence about the records of the original and fresh scrutinies would only reinforce these conclusions, for the evidence would show (if admissible and accepted) that the wrong result was declared in respect of the fifth and sixth places. That being so, to the extent to which admission of the evidence was sought to be supported by reference to s 362(3), its admission in this case is unnecessary.

Though variously expressed, the chief arguments advanced in support of admission of the evidence of the records of the original and fresh scrutinies asserted that, by adding what was recorded about the lost ballot papers in the original and fresh scrutinies to the results of the re-count (revised or unrevised in accordance with the allegations of Mr Wang and Mr Mead), it would be shown that Mr Wang and Senator Pratt should have filled the fifth and sixth places and should now be declared to have been duly elected.

No provision of the Act expressly provides for making such a patchwork of results. Rather, the relevant provisions of the Act provide that the result of the poll will be determined by scrutiny of all of the relevant ballot papers accompanied by whatever additional steps (such as reservation of ballot papers on a re-count for the decision of the Australian Electoral Officer for the relevant State or Territory) the Act permits or requires.

Scrutiny of the ballot papers is much more than a mechanical task. Judgments must be made about particular ballot papers. Both the Wang and Mead petitions depend, in very large part, upon this being so. And the differences between decisions made in the original and fresh scrutinies and those