Page:Australian Electoral Commission v Johnston.pdf/36

Hayne J

case, "no blemish affecting the taking of the poll and the ballot papers [were] available to be recounted" (emphasis added). As "the valid choice of the electors [could] lawfully be ascertained by recounting", it was unnecessary to take a further poll. That is, no further poll was necessary because "[t]he full number of qualified senators required [could] be returned in accordance with the Act after a recount of the ballot papers" (emphasis added).

The Full Court having answered the questions referred for its consideration pursuant to s 377 of the Act, the matter came on for further hearing before Mason CJ. His Honour gave directions for the further counting and re-counting of ballot papers and did so as an incident of and for the purpose of facilitating the exercise of the power given to the Court of Disputed Returns by s 360(1)(vi) to declare any candidate duly elected who was not returned as elected. It must be acknowledged that, as the first, third and fourth respondents to each of the petitions pointed out, the directions given by Mason CJ moulded the procedures required by the Act to the circumstance that one of the candidates named on the ballot paper was ineligible for election. But the directions given did not provide for any departure from, or addition to, the requirements of the Act regulating the scrutiny beyond recognition of the candidate's ineligibility to be chosen as a senator.

By contrast, what Mr Wang and Mr Mead invite the Court to do in this case is to adopt a method of ascertaining the result of the polling which is a method for which the Act does not provide. That step cannot be taken. Because that is so, the evidence of the records of the original and fresh scrutinies which bear on the lost ballot papers is not admissible for the purpose of the Court determining that it should declare any candidate duly elected who was not returned as elected.

The second separate question should therefore be given an answer in two parts. First, the Court is precluded by s 365 from admitting, for the purpose described in the proviso to that section, evidence of the records made at the original and fresh scrutinies that bear on the missing ballot papers. Second, those records are not admissible for the purpose of the Court determining that it should declare any candidate duly elected who was not returned as elected.

The conclusions just expressed make it unnecessary to deal at any length with the third separate question, which asks, in effect, whether an inquiry