Australian Electoral Commission v Johnston Wang v Johnston Mead v Johnston

The Australian Electoral Commission (AEC) brought petitions before the Court of Disputed Returns concerning the election of six senators for Western Australia. The dispute arose from a very close election for the fifth and sixth Senate places, which led to a re-count of ballot papers. Crucially, 1,370 ballot papers were lost before this re-count could be completed. The re-count of the available ballot papers resulted in different candidates being elected to the fifth and sixth places compared to the outcome of an earlier "fresh scrutiny" conducted under section 273 of the *Commonwealth Electoral Act 1918* (Cth). Petitions were also filed by Johnston Wang and Mead, who sought to dispute the election results.

The Court was required to determine several legal issues. These included whether the loss of the 1,370 ballot papers meant that the electors who cast them were "prevented from voting" for the purposes of section 365 of the Act. The Court also had to consider whether section 365 precluded it from admitting evidence of records made during earlier counts concerning these lost ballot papers, specifically when determining if the election result was likely to have been affected. Finally, the Court needed to ascertain whether it possessed the power to declare a candidate duly elected by combining the results of the re-count with records of the lost ballot papers from earlier counts.

Hayne J answered the questions of law posed. His Honour determined that the loss of the 1,370 ballot papers did mean that the electors who submitted them were "prevented from voting" within the meaning of section 365. Furthermore, the Court was precluded by section 365 from admitting records of the fresh scrutiny or original scrutiny pertaining to the lost ballot papers for the purpose of determining whether the loss affected the election result. The Court was also precluded from using these records to declare a candidate duly elected who had not been returned as elected. The Court found that a further inquiry regarding the handling of ballot papers by the Australian Electoral Officer for Western Australia was permitted under section 281(3) but was neither relevant nor necessary for the disposition of the petitions before the Court.