Page:Australian Electoral Commission v Johnston.pdf/9

 HAYNE J.

An election of six senators for the State of Western Australia to serve in the Senate of the Parliament of the Commonwealth was held on 7 September 2013. The election for the fifth and sixth places was very close. A re-count was directed, but not all of the ballot papers to be re-counted could be found: 1,370 of them had been lost. On the re-count, the candidates who won the fifth and sixth places differed from those ascertained by earlier counts.

Was the result of the election likely to be affected by the loss of the ballot papers? Can this Court now decide who should have been elected? Can it do so by looking at records of earlier counts of the lost ballot papers? And need it now examine ballot papers whose formality is disputed? Or must it instead declare the election absolutely void?

The resolution of these questions depends on the proper construction of the Act under which the election was held and under which the result of the election is now challenged: the Commonwealth Electoral Act 1918 (Cth) ("the Act"). This decision resolves three questions of law about the construction of that Act. It is the answers to these questions that determine the answers to the questions above.

Section 7 of the Constitution requires that "[t]he Senate shall be composed of senators for each State, directly chosen by the people of the State". The Act provides the mechanisms and procedures by which senators are chosen by the people. In particular, the Act provides for the issue of writs for elections (Pt XIII), the nomination of candidates (Pt XIV), postal voting (Pt XV), pre-poll voting (Pt XVA) and the polling (Pt XVI).

Section 263 of the Act provides that the result of the polling shall be ascertained by scrutiny. Section 283(1)(a) of the Act requires the Australian Electoral Officer for the relevant State or Territory to declare the result of the election and the names of the candidates elected as soon as is convenient after the result of the election has been ascertained.

Three election petitions have been issued disputing the election of six senators for Western Australia that was held on 7 September 2013. Following the conduct of an original scrutiny and a fresh scrutiny of the ballot papers cast at the election, the Electoral Commissioner directed a re-count of a category of