Australian Electoral Commission v Johnston [2014] HCA 5

Australian Electoral Commission v Johnston [2014] HCA 5

The 1,370 electors whose ballot papers were lost were prevented from voting for the purposes of s 365; thus, evidence of how they intended to vote (records of original and fresh scrutinies) is inadmissible in determining whether the error affected the result. The result declared was likely affected by the loss of ballot papers as the margin was much smaller than the number lost. The Court cannot lawfully reconstruct the outcome from prior scrutiny records and available ballot papers; therefore, any order declaring different candidates elected cannot be made, and the only appropriate relief is to declare the election void.

Parties
Petitioner: Australian Electoral Commission; Petitioner: Zhenya Wang; Petitioner: Simon Mead; Respondents: David Johnston & Ors
Jurisdiction
Australia
Judgment Date
18 February 2014
Procedural Posture
Election Petition / Interlocutory Determination of Separate Questions of Law
Outcome
Questions of law answered (see orders); costs reserved; petitions stood over for further hearing.
Legal Topics
Senate Elections, Court of Disputed Returns, Lost Ballot Papers, Scrutiny of Votes, Evidence Admissibility, Commonwealth Electoral Act 1918 (cth) Sections 263, 273, 281(3), 360, 362, 365
Constitutional Law Electoral Law Senate Elections Court of Disputed Returns Lost Ballot Papers Scrutiny of Votes Evidence Admissibility Commonwealth Electoral Act 1918 (cth) Sections 263, 273, 281(3), 360, 362, 365

Case Brief

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Parties

Australian Electoral Commission

Petitioner

Zhenya Wang

Petitioner

Simon Mead

Petitioner

David Johnston & Ors

Respondents

Procedural Posture

Election Petition / Interlocutory Determination of Separate Questions of Law

Legal Issues

  1. 1 Whether the loss of 1,370 ballot papers prevented those electors from voting under s 365 of the Commonwealth Electoral Act 1918 (Cth)
  2. 2 Whether the Court is precluded by s 365 or otherwise from admitting records of the lost ballot papers as evidence of voting intention
  3. 3 Whether further inquiry regarding the manner in which ballot papers reserved for decision was handled is permitted, relevant or necessary to the petitions

Ratio Decidendi

The 1,370 electors whose ballot papers were lost were prevented from voting for the purposes of s 365; thus, evidence of how they intended to vote (records of original and fresh scrutinies) is inadmissible in determining whether the error affected the result. The result declared was likely affected by the loss of ballot papers as the margin was much smaller than the number lost. The Court cannot lawfully reconstruct the outcome from prior scrutiny records and available ballot papers; therefore, any order declaring different candidates elected cannot be made, and the only appropriate relief is to declare the election void.

Court Disposition

Questions of law answered (see orders); costs reserved; petitions stood over for further hearing.

Orders

  • (1) Questions of law ordered to be tried separately are answered: (1) Yes (the loss meant electors were 'prevented from voting'); (2) Yes, the Court is precluded by s 365 from admitting scrutiny records of lost papers for relevant purposes, and such records are also not admissible for declaring any candidate duly...
  • (2) Costs of trial of separate questions reserved.