Australian Electoral Commission v Towney (No 2)
[1994] FCA 438
•22 JUNE 1994
AUSTRALIAN ELECTORAL COMMISSION v. RONNEY GLENN TOWNEY; SHIRLEY JOY TRUDGETT;
ALICE JOYCE WELLS; MICHAEL ERNEST BROWN; KERRIE ANN HUTCHISON; ANTHONY ARTHUR
AMATTO; IRENE DALE PEACHEY; RUTH MARGARET NADEN; HARRY ROY BELL; NEVILLE JOHN
BROWN and WILLIAM CHARLES HILL
No. NG102 of 1994
FED No. 438/94
Number of pages - 12
Elections - Aborigines
(1994) 51 FCR 250
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
FOSTER J
CATCHWORDS
Elections - dispute concerning regional council election - error in prescribed polling procedures - detachment of original and counterfoil voter identification slips form envelopes - whether election should be declared void - power to order matching of envelopes with voter identification slips - whether exclusion of votes would reasonably affect the result of the election - reference to the "common law of elections" - reference to principle of free elections.
Aborigines - powers of Court under Schedule 4 of the Aboriginal and Torres Strait Islander Commission Act 1989 - consideration of clauses 10(1), 14 and 23 in Schedule 4.
Commonwealth Electoral Act 1918 (Cth) - s 360(1)
Aboriginal and Torres Strait Islander Commission Act 1989 - s 140, Schedule 4, Part 2
Chanter v Blackwood (No. 2) (1904) 1 CLR 121
Kean v Kirby (1920) 27 CLR 449
Dunbier v Mallam (1971) 2 NSWLR 169
In Re Wood (1988) 167 CLR 145
HEARING
SYDNEY, 4-5 May 1994
#DATE 22:6:1994
Counsel for the Applicant : Dr S. Kenny
Instructed By: : Australian Government Solicitor
Counsel for the first, second, third,
fifth, seventh, eighth and ninth
Respondents : Mr J. McCarthy QC
Counsel for the fourth, sixth, tenth
and eleventh Respondents : Mr J. Kildea
Instructing Solicitors for the first,
second, third, fifth, seventh, eighth,
ninth, tenth and eleventh Respondents : Aboriginal Legal Service
Instructing Solicitors for the
fourth and sixth Respondents : Craddock, Murray and Neuman
ORDER
1. The Court declares that:
(a) There has been an error made by a polling officer or polling officers, appointed by the Australian Electoral Commission for the purpose of polling, in the election held on 4 December 1993 for the Regional Councillors for the Wirawongam Ward in the Wagga Wagga Region.
(b) The said error may have affected the result of the said election.
2. The Court is satisfied, having perused the affidavits of Simon Charles Blackshield of 18 April 1994 and Lynne Elizabeth Glasson of 21 April 1994, that there is a reliable scientific technique available to enable the matching of voter detail slips with the voter card envelopes form which those slips have been detached.
3. By reason of the matter set out in paragraph 2 above, the Court does not presently propose to declare the said election void.
4. The Court directs that the documents described in the Schedule to these Orders be returned by the Australian Government Solicitor to the custody of the Australian Electoral Commission (AEC), and that the AEC cause the said documents to be conveyed to the custody of Mr Paul D Westwood of Forensic Documents Services Pty Ltd.
5. The Court orders that:
(a) Subject to paragraphs 5(b) - (e) below, Mr Paul D Westwood, Mr Steven J Strach, and Mr Graeme McCormack of Forensic Document Services Pty Ltd have leave to inspect the documents described in the Schedule hereto, and to do all things necessary or convenient to be done with the said documents for the purpose of carrying out the forensic matching process described in paragraph 5(f) below.
(b) The persons named in paragraph 5(a) above not use the documents described in the Schedule of any of the information recorded in those documents (other than information recorded in the said documents and acquired by any of those persons from another source) for any purpose other than the purpose described in paragraph 5(f) below.
(c) The persons named in paragraph 5(a) above not disclose the contents of any of the documents described in the Schedule (other than information contained in the said documents and acquired by any of those persons from another source) to any person except this Court, the legal representatives of parties to these proceedings, and officers of the Australian Electoral Commission.
(d) The persons named in paragraph 5(a) above not unseal or otherwise open any envelope or like document described in the Schedule.
(e) Paul D Westwood of Forensic Document Services Pty Ltd at all times keep the documents described in the Schedule under security.
(f) Forensic Document Services Pty Ltd carry out, in relation to the documents described in the Schedule, the forensic matching process as described in the affidavits referred to in paragraph 2 above.
(g) Forensic Document Services Pty Ltd, having carried out the process described in paragraph 5(f) above, prepare a report setting out the results of the said matching process, and that Forensic Document Services Pty Ltd certify or otherwise indicate which tear off slip belongs to which voter card envelope. Such report to be provided to the Court and to the parties, and the matter thereafter to be listed before the Court for further directions or orders.
(h) In the event that the matching process described in paragraph 5(f) above is 100% successful in matching each of the voter detail slips described in the Schedule to its voter card envelope, the Regional Returning Officer conduct a preliminary scrutiny of all voter card envelopes which have been matched with a voter detail slip, in accordance with the provisions of Rules 92(2)(c)-92(6) inclusive of the ATSIC Regional Council Election Rules (the Rules).
(i) Having carried out the procedure described in paragraph 5(h) above, the Regional Returning Officer carry out, in respect of all voter card envelopes described in the Schedule which have not been matched with a voter detail slip, the procedures described in Rules 92(4)(a)(ia) -(iii) inclusive of the Rules.
(j) Having carried out the procedure described in paragraphs 5(h) and
(i) above, the Regional Returning Officer, in respect of all ballot papers which have been dealt with in accordance with Rule 92(4)(a)(ii) of the Rules (including all ballot papers so dealt with during the course of the conduct of the original scrutiny in respect of the election the subject of these proceedings), carry out the procedure described in Rule 92(7) of the Rules.
(k) The Regional Returning Officer thereafter deal with the ballot papers described in paragraph 5(j) above in accordance with the provisions of Schedule 2 to the ATSIC Act.
6. Once the process described in paragraph 5 above is completed, the proceedings be re-listed before it for further orders, without any prior public declaration of the results of the procedure.
7. The AEC pay the costs of Forensic Document Services Pty Ltd of carrying out the scientific procedures described in paragraphs 5(f) and (g) above, including the costs of Forensic Document Services of carrying out tests on unused envelopes on 11 and 28 April 1994, and those tests reported in the Report of 1 April 1994 forming annexure "b" to the affidavit of Simon Charles Blackshield of 18 April 1994 filed in these proceedings and in the Report of 20 April 1994 forming annexure "C" to the affidavit of Lynne Elizabeth Glasson of 21 April filed in these proceedings. SCHEDULE
1. All voter card envelopes used at Lithgow and Coonabarabran polling places in connection with the election held on 4 December 1993 for ATSIC Regional Councillors for the Wirawongam Ward in the Wagga Wagga Region.
2. All voter detail slips bearing the names listed in Exhibit LG1-CONFIDENTIAL to the affidavit of Lynne Elizabeth Glasson of 21 April 1994 filed in these proceedings.
3. All counterfoils bearing the names listed in Exhibit LG1-CONFIDENTIAL to the affidavit of Lynne Elizabeth Glasson of 21 April 1994 filed in these proceedings.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
FOSTER J The Court has before it a petition brought pursuant to Part 2 of Schedule 4 to the Aboriginal and Torres Strait Islander Commission Act 1989 (the "Act"). Schedule 4 is given statutory force by s 140 of the Act and deals with disputes about electoral matters. The petitioner is the Australian Electoral Commission (the "AEC"). This petition relates to a dispute concerning a regional council election held on 4 December 1993 pursuant to the provisions of the Act and rules made under it.
The dispute involves the Wirawongam ward of the Wagga Wagga region and requires consideration of events occurring at the polling places at Coonabarabran and Lithgow.
Incidentally, this petition has been heard in conjunction with another petition relating to an election on the same date concerning a different region. In the matters of Harold Love v Desmone (Des) Williams and Ors (NG 98 of 1994) and Australian Electoral Commission v Desmone (Des) Williams and Ors (NG 104 of 1994) it is the Northern Rivers Ward in the Coffs Harbour Region which is the location of the dispute.
In this present matter an agreed statement of facts has been filed. Paragraphs 10 to 13 of that statement detail relevant events. They read as follows:-
"10. When a person attended at the Coonabarabran polling place or at the Lithgow polling place on 4 December 1993, for the purpose of voting in the Ward election:
(a) the presiding Officer was required by Rule 73(1) of the Rules to ask each person who attended and claimed to vote in the Ward election if that person had voted before in the election; and
(b) if that person's claim to vote was not rejected, the presiding officer was required by Rule 73(4) of the Rules to hand to him or her a voter card envelope and a ballot paper, initialled by the presiding officer, for the Ward in respect of which the person claimed to be enrolled.
11. Each voter at Coonabarabran polling place on 4 December ought to have done the following:
(a) completed a voter card envelope in accordance with Rule 74(1) of the Rules and handed the envelope to the issuing officer for signing in accordance with Rule 74(2);
(b) in private marked his or her vote on the ballot paper and folded the ballot paper so as to conceal his or her vote in accordance with Rules 77(a) and (b);
(c) inserted the ballot paper marked with his or her vote inside a voter card envelope and sealed that envelope in accordance with Rule 77(c) and (d); and
(d) presented the voter card envelope to the liaison officer in the booth for decision in accordance with Rule 78 of the Rules.
(e) deposited the voter card envelope containing the ballot paper in the ballot box in the booth at the polling place in accordance with Rule 78(5) of the Rules.
...
12. At some time after the voter had been handed a voter card envelope for completion in accordance with Rule 74(1) of the Rules and before the voter's voter card envelope was deposited in the ballot box, one of the officers at the Coonabarabran polling place detached from the envelope the original and the counterfoil of the slip ("the slip") which bore or ought to have borne details concerning the relevant voter, including:
(a) the name of the voter;
(b) the certification made by the voter (or on his or her behalf) that the voter is an Aboriginal person of a Torres Strait Islander;
(c) the signature of the issuing officer (also dated, in accordance with Rule 74(2) of the Rules); and
(d) the annotation (if any) made by a liaison officer in accordance with the Rule 78(3) of the Rules and any request for review under Rule 79.
After the slip had been detached by one of the officers, each voter's voter card envelope was deposited in the ballot box in the booth at the Coonabarabran polling place.
13. Immediately after detaching the original and the counterfoil of each slip from each voter card envelope as described in paragraph 12 above, one of the officers placed the original with the counterfoil in a folder which had been provided by the AEC for the purpose of keeping the counterfoils of such slips."
The problem which is central to these proceedings was occasioned by the detachment of the original, as well as the counterfoil voter identification slips by polling clerks from the relevant voter envelopes. This is agreed to have been, as it manifestly was, an error in the prescribed polling procedures. Similar errors were committed in respect of votes cast at the Lithgow polling place. The errors were committed in respect of 50 voter card envelopes at Coonabarabran and 7 voter card envelopes at Lithgow.
These errors resulted in the votes of these voters being excluded from the scrutiny by the Regional Returning Officer at the count of the votes. Consequently, the count was conducted without these votes being included. The count resulted in the election of the 11 respondents to the petition as councillors for the region.
The AEC accepts that the exclusion of these votes should not have occurred if the voting procedures had been properly followed by the polling clerks at the booths, and that the election is flawed. It seeks, in effect, the rectification of this problem by the petition it brings. The Court's powers in relation to the trying of an election petition are set out in clause 10(1) of schedule 4. The relevant parts of this clause are as follows:
"(1) The powers of the Court in trying an election petition, include, but are not limited to, the following powers:
...
(e) to declare that any person who was returned was not duly elected;
(f) to declare any candidate duly elected who was not returned;
(g) to declare the election absolutely void; ....
(j) to make any order, or give any direction, that the Court thinks it necessary or convenient for the purposes of giving effect to any declaration or other decision of the Court in the
proceedings;
...
(2) The Court may exercise all or any of its powers under this clause on such grounds as the Court in its discretion thinks just and sufficient."
In consideration of the issues in this case, regard must also be had to clause 23, which provides as follows:
"The Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not."
It is also important to consider provisions of clause 14 which provides:
"(1) No election shall be avoided on account of any delay in the declaration of nominations, the polling, or the declaration of a poll, or on account of the absence or error of or omission by any officer which did not affect the result of the election.
(2) Where any elector was, on account of the absence or error of, or omission by, any officer, prevented from voting in any election, the Court shall not, for the purpose of determining whether the absence or error of, or omission by, the officer did or did not affect the result of the election, admit any evidence of the way in which the elector intended to vote in the election."
Arguably, clause 12 of schedule 4 might also apply, but this clause is specifically not relied on in this petition. I do not need to consider its terms. In this case, it is agreed by all parties that there was, in respect of all these votes, a relevant error under clause 14 by the officers. It was constituted by the detaching of the original voter detail slips, so that they did not accompany the envelopes containing the votes themselves, when they came before the Regional Returning Officer for his preliminary scrutiny.
It is also agreed that the exclusion of these votes could reasonably have affected the result of the election. Quite apart from this concession, that fact is amply demonstrated by affidavit evidence placed before me. I was taken, with considerable care by counsel for AEC, to decided cases bearing upon the words "affect the result of the election." I do not need to refer to these authorities in these reasons, as I am satisfied that the most stringent interpretation of the phrase would be satisfied by the present facts.
A case is therefore made for the Court's making a declaration that the election was void. It is the submission of the 4th, 6th, 10th and 11th respondents (the "objecting respondents") that I should indeed take this course. The other respondents (the "supporting respondents") and the petitioner seek, however, that I take another course.
It appears that, with the exception of two voter envelopes to which I shall make reference later, it is possible, because of the correct following of other prescribed procedures by the polling officers, to match the envelopes containing the voting papers with the original voter identification slips, which should have been attached to the envelopes at the time of scrutiny by the Regional Returning Officer.
These strips had been attached by perforated strips which were themselves attached by adhesive gum to the body of the envelope. The supporting respondents and the AEC have, in fact, sought to salvage the election by putting forward a case based upon evidence as to a proposed scientific procedure by which the detached slips can be accurately matched with the excluded voter envelopes, so that the check previously denied to the Regional Returning Officer can now be carried out. In fact it is submitted that the procedure can be reduced in scope to the matching of only 5 envelopes with the original voter identification slips.
These envelopes would contain the votes of persons who, as a result of other factors, would have been excluded from the count in any event. Once those voter envelopes have been identified by their being matched with the identification slips of the otherwise excluded voters it may then safely be inferred that the remaining envelopes would match the remaining voter identification slips, in respect of which no ground of exclusion existed other than that which resulted from the initial polling clerk error.
The affidavit evidence indicates that the AEC was, at first, not satisfied that the proposed scientific matching procedure would be effective. In particular, it was concerned that in the case of some slips matching would be impossible because the polling officer had not torn along the perforations but along the gum line.
The AEC is now satisfied, however, that the scientific procedures contemplated can reasonably be expected to identify voter envelopes with voter identification slips where detachment occurred in either of those ways. It is clear that the cost of engaging in these matching procedures will be minor in comparison to the cost of calling a fresh election, which could amount to $60,000. Furthermore, this procedure would enable voters who were disenfranchised by polling booth error to have their votes counted in the election as they should have been.
The objecting respondents have raised some queries as to the efficacy of the proposed procedure. These queries are not based upon countervailing scientific evidence but consist of suggestions from the bar table concerning matching difficulties that could occur because of deterioration in previously perforated portions of the voter slips and envelopes. I do not see any significance in these difficulties for present purposes. If the procedure goes ahead, it will be either possible for the matching process to be done with accuracy or it will not. I am satisfied, however, on the evidence before me, that the proposed procedures are reasonably capable of identifying the voter envelopes with the previously detached voter identification slips.
If this proves impossible, then, of course, the Court will be so informed and the whole matter will have to be looked at in the light of that information. The objecting respondents also raised the problem of the two votes to which I made reference earlier. The problem here is that there are no voter identification slips which can be sought to be matched with them. There are two slips missing. It is suggested that these may have disappeared through the voters having committed the additional error of placing them in the voter envelopes. It is, however, pointed out that for this to have happened, earlier polling clerk error would necessarily have to have occurred.
I consider that if I adopt the course argued for by the AEC and the supporting respondents, the problem can be resolved pragmatically. It is not very likely that after a fresh count takes place these two votes will affect the result of the reconstituted election. If, on the contrary, it appears that they could, then that problem will have to be confronted at that time. The AEC and supporting respondents are prepared to take the risk that the contemplated procedures may be rendered abortive, but wish to have the opportunity of undertaking them. I consider that this is a reasonable method of dealing with this problem.
The final submission of the objecting respondents is that the Court lacks the power to direct that this course be taken. I have had the benefit of very full argument on this question. I do not find it necessary to undertake a review of the authorities as I have come clearly to the opinion that I have the required power to make the orders sought. Clause 10(1) of schedule 4 commences with the words:
"The powers of the Court in trying an election petition include, but are not limited to, the following powers: ..."
This wording is similar too, and in my view has the same affect, as the opening words of s 360(1) of the Commonwealth Electoral Act 1918 (Cth). It is tolerably clear, indeed, that clause 10(1) is modelled on this section. The effect of the wording is, in my opinion, to provide the Court with all the ordinary powers of a court of disputed returns under what has been described as the "common law of elections". I wish only to make brief reference to passages of high authority which indicate the core juridical concepts underlying this branch of the common law.
In Chanter v Blackwood (No. 2) (1904) 1 CLR 121 at 129, Griffith CJ, in relation to the common law of elections, said:
"There is a common law of elections which is of general application in the case of municipal as well as
parliamentary elections. It is, after all, only a rule of common sense. The object of an election is to secure that the majority of electors shall choose the person they desire to be elected."
In Kean v Kirby (1920) 27 CLR 449, Isaacs J, at page 455, expressed the view that the language of the Commonwealth Electoral Act 1918 should be construed "as a whole and in favour of the franchise, as all such acts should be read". At 459 his Honour said:
"The fundamental common law principle is that 'elections ought to be free.' That basic principle was reaffirmed and enforced by the Statute 3 Edw I c 5. It lies at the root of all election law. For centuries parliamentary elections were conducted by open voting. Freedom of election was sought to be protected against intimidation, riots, duress, bribery and undue influence of every sort. Nevertheless it was found necessary to introduce the ballot system of voting. The essential point to bear in mind in this connection is that the ballot itself is only a means to an end, and not the end itself. It is a method adopted in order to guard the franchise against external influences, and the end aimed at is the free election of a
representative by a majority of those entitled to vote. Secrecy is provided to guard that freedom of election."
His Honour also said:
"The ballot, being a means of protecting the franchise, must not be made an instrument to defeat it."
These passages are important in indicating that the primary role of a court of disputed returns is to protect the integrity of the franchise. I am satisfied that in this present case the common law of elections is clearly preserved by clause 10(1) of schedule 4 and gives me all necessary and reasonable powers to effect that end. In particular, I can go behind the fact that the Regional Returning Officer quite properly exercised his powers under rule 92 of the Regional Council Election Rules in excluding the votes the subject of these proceedings. In my view, it is within my power to determine whether the election was properly conducted and, if it was not, to order such steps as should reasonably be taken to correct the situation. The ballot must not be made an instrument of defeating the franchise. (See also per Hardy J in Dunbier v Mallam (1971) 2 NSWLR 169 at 175.)
Regard must also be paid to the wide terms of clause 10(1)(j) and 10(2) and clause 23 already set out in these reasons. What I am currently asked to do is, in my opinion, to make orders that may facilitate a re-count of votes cast in this election on the basis that, in the circumstances, certain votes were incorrectly excluded from the count. In effect, I am being asked to save an election which would otherwise be rendered abortive because of errors in the prescribed polling procedures. I am satisfied that on general principles, I have power to do so to protect the integrity of the electoral process. If I am wrong in this, then I am satisfied that I have such powers as a matter of construction of clause 10(1).
This view is clearly supported in the judgment of Mason CJ in In Re Wood (1988) 167 CLR 145 at 172, where his Honour, in dealing with corresponding provisions of the Commonwealth Electoral Act 1918 said:
"Section 360(1)(vi) authorizes the Court to declare any candidate duly elected who was not returned as elected. It seems to me that as an incident of the exercise of this power the Court can give appropriate directions with respect to the counting or recounting of ballot-papers at an election. The giving of such directions will facilitate the exercise of the power conferred by s. 360(1)(vi) and will enable the vacancy to be filled as quickly as possible."
I am satisfied, in all the circumstances, that there is no lack of power to make the orders sought. It has been submitted on behalf of the objecting respondents that I should decline to make the orders as a matter of discretion. I am wholly against this submission. The orders sought can be implemented, I am told, with all due speed and comparatively little expense. They also hold a very good prospect of resulting in the matching of voter slips with envelopes, so that voters previously disenfranchised can have their votes rendered effective. If success is not achieved, then little is lost in time or money and the election may be declared void and reheld in its entirety.
If such a declaration were now made without this opportunity being afforded, there would inevitably be inconvenience to the electors and considerable cost to the candidates and the community. I propose therefore to make the orders as asked, together with certain amendments which have been agreed. These orders are:
1. The Court declares:
(a) That there has been an error made by a polling officer or polling officers, appointed by the Australian Electoral Commission for the purpose of polling, in the election held on 4 December 1993 for the Regional Councillors for the Wirawongam Ward in the Wagga Wagga Region.
(b) That the said error may have affected the result of the said election.
2. The Court is satisfied, having perused the affidavits of Simon Charles Blackshield of 18 April 1994 and Lynne Elizabeth Glasson of 21 April 1994, that there is a reliable scientific technique available to enable the matching of voter detail slips with the voter card envelopes form which those slips have been detached.
3. By reason of the matter set out in paragraph 2 above, the Court does not presently propose to declare the said election void.
4. The Court directs that the documents described in the Schedule to these Orders be returned by the Australian Government Solicitor to the custody of the Australian Electoral Commission (AEC), and that the AEC cause the said documents to be conveyed to the custody of Mr Paul D Westwood of Forensic Documents Services Pty Ltd.
5. The Court orders:
(a) That, subject to paragraphs 5(b) - (e) below, Mr Paul D Westwood, Mr Steven J Strach, and Mr Graeme McCormack of Forensic Document Services Pty Ltd have leave to inspect the documents described in the Schedule hereto, and to do all things necessary or convenient to be done with the said documents for the purpose of carrying out the forensic matching process described in paragraph 5(f) below.
(b) That the persons named in paragraph 5(a) above not use the documents described in the Schedule of any of the information recorded in those documents (other than information recorded in the said documents and acquired by any of those persons from another source) for any purpose other than the purpose described in paragraph 5(f) below.
(c) That the persons named in paragraph 5(a) above not disclose the contents of any of the documents described in the Schedule (other than information contained in the said documents and acquired by any of those persons from another source) to any person except this Court, the legal representatives of parties to these proceedings, and officers of the Australian Electoral Commission.
(d) That the persons named in paragraph 5(a) above not unseal or otherwise open any envelope or like document described in the Schedule.
(e) That Paul D Westwood of Forensic Document Services Pty Ltd at all times keep the documents described in the Schedule under security.
(f) That Forensic Document Services Pty Ltd carry out, in relation to the documents described in the Schedule, the forensic matching process as described in the affidavits referred to in paragraph 2 above.
(g) That Forensic Document Services Pty Ltd, having carried out the process described in paragraph 5(f) above, prepare a report setting out the results of the said matching process, and that Forensic Document Services Pty Ltd certify or otherwise indicate which tear off slip belongs to which voter card envelope. Such report to be provided to the Court and to the parties, and the matter thereafter to be listed before the Court for further directions or orders.
(h) That in the event that the matching process described in paragraph 5(f) above is 100% successful in matching each of the voter detail slips described in the Schedule to its voter card envelope, the Regional Returning Officer conduct a preliminary scrutiny of all voter card envelopes which have been matched with a voter detail slip, in accordance with the provisions of Rules 92(2)(c) - 92(6) inclusive of the ATSIC Regional Council Election Rules (the Rules).
(i) That, having carried out the procedure described in paragraph 5(h) above, the Regional Returning Officer carry out, in respect of all voter card envelopes described in the Schedule which have not been matched with a voter detail slip, the procedures described in Rules 92(4)(a)(ia) - (iii) inclusive of the Rules.
(j) That, having carried out the procedure described in paragraphs 5(h) and (i) above, the Regional Returning Officer, in respect of all ballot papers which have been dealt with in accordance with Rule 92(4)(a)(ii) of the Rules (including all ballot papers so dealt with during the course of the conduct of the original scrutiny in respect of the election the subject of these proceedings), carry out the procedure described in Rule 92(7) of the Rules.
(k) That the Regional Returning Officer thereafter deal with the ballot papers described in paragraph 5(j) above in accordance with the provisions of Schedule 2 to the ATSIC Act.
6. That once the process described in paragraph 5 above is completed, the proceedings be re-listed before it for further orders, without any prior public declaration of the results of the procedure.
7. That the AEC pay the costs of Forensic Document Services Pty Ltd of carrying out the scientific procedures described in paragraphs 5(f) and (g) above, including the costs of Forensic Document Services of carrying out tests on unused envelopes on 11 and 28 April 1994, and those tests reported in the Report of 1 April 1994 forming annexure "b" to the affidavit of Simon Charles Blackshield of 18 April 1994 filed in these proceedings and in the Report of 20 April 1994 forming annexure "C" to the affidavit of Lynne Elizabeth Glasson of 21 April filed in these proceedings. SCHEDULE
1. All voter card envelopes used at Lithgow and Coonabarabran polling places in connection with the election held on 4 December 1993 for ATSIC Regional Councillors for the Wirawongam Ward in the Wagga Wagga Region.
2. All voter detail slips bearing the names listed in Exhibit LG1-CONFIDENTIAL to the affidavit of Lynne Elizabeth Glasson of 21 April 1994 filed in these proceedings.
3. All counterfoils bearing the names listed in Exhibit LG1-CONFIDENTIAL to the affidavit of Lynne Elizabeth Glasson of 21 April 1994 filed in these proceedings.
Footnote
30. As a result of the re-count supervised by Mr Mario Racomelara, the Regional Returning Officer for the Wagga Wagga Region, on 18 May 1994, a different result emerged from that of the original scrutiny of 4 December 1993. On 19 May 1994, the Court made orders pursuant to Schedule 4 section 10 of the ATSIC Act 1989. These orders were made by consent on the basis that the recount made in accordance with the previous orders had produced the result which should have originally occurred. They were as follows:
1. William Peachey was duly elected as a Councillor for the Wirawongam Ward in the Wagga Wagga ATSIC Region in the election held on 4 December 1993.
2. Harry (Sonny) Bell was not duly elected as a Councillor for the Wirawongam Ward in the Wagga Wagga in the ATSIC Region in the election held on 4 December 1993.
Comparable orders were made by the Court on 21 June 1994 in regard to the proceedings Harold Love v Desmone (Des) Williams and Ors (NG98 of 1994) and Australian Electoral Commission v Desmone (Des) Williams and Ors (NG 104 of 1994) in the Northern Rivers Ward election. In those proceedings, similar orders had been made for a re-count to be supervised by the Regional Returning Officer for the Coffs Harbour Region on 20 June 1994. The recount confirmed two councillors as being duly elected and two councillors as not being duly elected. Orders made on 21 June 1994 gave effect to those results of the recount.
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