Australian Electoral Commission v Johnston

Martin Clark, ‘News: Twomey on WA Senate Election Case, and Questions about an Appeal to the Full Court’ (19 February 2014).

Martin Clark, ‘News: Orr on WA Senate Election Case’ (3 February 2014).

Justice Hayne, sitting in Melbourne as a single Justice of the Court of Disputed Returns, has, on the application of the Australian Electoral Commission, answered three questions in the special case before the Court. During the recount of that election the AEC discovered that 1370 ballot papers had been lost, which, given the close race for the fifth and sixth Senate vacancies, were potentially decisive of the outcome. The AEC argued that the voters whose ballot papers were lost were effectively prevented from voting. Hayne J answered the questions as follows:

1.           Did the loss of the 1,370 ballot papers between the fresh scrutiny and the re‑count mean that the 1,370 electors who submitted those ballot papers in the poll were ‘prevented from voting’ in the Election for the purposes of s 365 of the Commonwealth Electoral Act 1918 (Cth) (Act)

Answer:    Yes.

2.           Is the Court of Disputed Returns precluded by s 365 or otherwise from admitting the records of the fresh scrutiny, or original scrutiny, that bear on the 1,370 missing ballot papers as evidence of the way in which each of those voters intended to vote, or voted, in the Election for the purposes of each of the petitions filed in the matter, including in so far as those petitions seek relief under ss 360 and 362?

Answer:    The Court of Disputed Returns is precluded by s 365 from admitting the records of the fresh scrutiny and the original scrutiny that bear on the 1,370 missing ballot papers for the purpose identified in the proviso to s 365, namely, determining whether the loss of the ballot papers did or did not affect the result of the election.  Further, the records of the original scrutiny and the fresh scrutiny that bear on those missing ballot papers are not admissible for the purpose of the Court determining that it should declare any candidate duly elected who was not returned as elected.

3.           On a proper construction of the Act, including the re‑count provisions, is any further inquiry regarding the manner in which the Australian Electoral Officer for Western Australia dealt with the ballot papers reserved for decision pursuant to s 281:

(a)          permitted under any, and if so which, provision of the Act. Answer: Yes, s 281(3).

(b)          relevant to the disposition of any, and if so which, petitions before the Court of Disputed Returns. Answer: No.

(c)          necessary to the disposition of any, and if so which, petitions before the Court of Disputed Returns? Answer: No.

Hayne J held that the electors who submitted the lost ballot papers were prevented from voting and that the number of ballot papers lost far exceeded the margin between the fifth and sixth Senate places. Because the Court of Disputed Returns may not admit evidence of records about the lost ballots, the result of the election was likely affected by the loss of those papers.The Electoral Act requires that electoral results be established by scrutinising the ballots cast: once a recount is ordered, that scrutiny must begin afresh, and, following the loss of the ballots, it cannot now be completed. Hayne J further held that the the Court of Disputed Returns could not construct a polling result by combining the results of original and fresh scrutinies. Consequently, the fifth and sixth Senate places were not duly elected. All parties had accepted that if that were the result, the only appropriate relief is for the election to be declared void; Hayne J made that order on 20 February 2014.

Court of Disputed Returns Decisions [2014] HCATrans 32 20 February 2014
[2014] HCA 5 18 February 2014
High Court Documents AEC v Johnston
Hearings, Court of Disputed Returns [2014] HCATrans 4  30 January 2014
[2014] HCATrans 3 29 January 2014
[2014] HCATrans 1 21 January 2014

Anne Twomey, ‘The Case of the Missing Votes’ on Constitutional Critique, 19 February 2014.

Anne Twomey, ‘Missing Votes Means It’s Back to the Polls for Western Australia’ on The Conversation, 18 February 2014.

Graeme Orr, ‘In Whose Interest? The High Court and the WA Senate Vote’ on The Conversation, 31 January 2014.

Australian Electoral Commission, ‘Statement from the Australian Electoral Commission: Court of Disputed Returns Decision’ (18 February 2014).