Page:Australian Electoral Commission v Johnston.pdf/35

Hayne J

made in the re-count about rejection or acceptance of ballot papers emphasise the importance of the scrutiny. Even the apparently mechanical task of tallying yielded different results between the original and fresh scrutinies and the re-count.

As already noted, the Act provides the procedures and mechanisms by which senators are to be directly chosen by the people. Those procedures and mechanisms are the means by which senators are "duly elected". More particularly, senators are duly elected following a poll conducted in accordance with the Act and ascertainment of the result of the polling by scrutiny of the ballot papers. Those who now seek to have the Court declare that Mr Wang and Senator Pratt were "duly elected", though not returned as elected, necessarily ask the Court to do so by reference to a "result" of the election constructed in a manner not provided for by the Act. The departures from those requirements which Mr Wang and Mr Mead invite the Court to make cannot be dismissed as immaterial (as might have been the case if at no point in the successive exclusion of candidates had the margin between candidates been less than the number of lost ballot papers).

In In re Wood, the Full Court determined questions respecting a possible vacancy in the Senate referred to the Court pursuant to s 377 of the Act. A senator returned as elected was not, at the time of his election, an Australian citizen and, therefore, was not entitled to be nominated for election as a senator. The whole Court held that the vacancy should be filled by the further counting of the ballot papers cast at the election, treating expressions of preference in favour of the unqualified candidate as ineffective: "a nullity".

The central premise for the Court's conclusions was that a valid result of the polling could be ascertained by scrutiny of the ballot papers. By construing Pt XVIII of the Act (the provisions regulating the scrutiny) in this way, the whole Court concluded that "the true result of the polling–that is to say, the true legal intent of the voters so far as it is consistent with the Constitution and the Act–can be ascertained" (emphasis added). As the Court said, there was, in that