Page:Australian Electoral Commission v Johnston.pdf/37

Hayne J

regarding the manner in which the AEO dealt with reserved ballot papers is permitted, relevant or necessary.

No party submitted that inquiry regarding the manner of dealing with reserved ballot papers was not permitted and, in terms, s 281(3) provides that if the validity of an election is disputed the Court may consider any ballot papers which were reserved for the decision of the Australian Electoral Officer for the relevant State or Territory. Whether ss 353(1) and 360(1) are additional sources of power need not be decided.

Question 3(a) should be answered "Yes, s 281(3)".

Having regard, however, to the rejection of the submissions made by Mr Wang, Mr Mead and others that the Court can determine who should have been elected by constructing a result from a combination of the records made at the original and fresh scrutinies about the lost ballot papers with the results of the re-count of available ballot papers and the results of the scrutiny of those ballot papers which were not within the re-count, it is neither relevant nor necessary to the disposition of any of the three petitions to consider the reserved ballot papers. It is neither relevant nor necessary to undertake that consideration because the Court must find that Mr Dropulich and Senator Ludlam were not duly elected, but cannot declare who was duly elected. The only relief appropriate is for the election to be declared void.

For these reasons, the separate questions should be answered in the manner set out earlier in these reasons.

The costs of the trial of separate questions should be reserved. The petitions should be stood over for argument about any remaining issue (including what order, if any, should be made for the costs of the trial of separate questions) on Thursday, 20 February 2014 at 12 noon in Melbourne.