The Australian Electoral Commission v Johnston and Ors; Wang v Johnston and Ors; Mead v Johnston and Ors

[2014] HCATrans 31

[2014] HCATrans 031

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
  Canberra  No C17 of 2013

B e t w e e n -

THE AUSTRALIAN ELECTORAL COMMISSION

Petitioner

and

DAVID JOHNSTON

First Respondent

JOE BULLOCK

Second Respondent

MICHAELIA CASH

Third Respondent

LINDA REYNOLDS

Fourth Respondent

WAYNE DROPULICH

Fifth Respondent

SCOTT LUDLAM

Sixth Respondent

ZHENYA WANG

Seventh Respondent

LOUISE PRATT

Eighth Respondent

Office of the Registry
  Perth  No P55 of 2013

B e t w e e n -

ZHENYA WANG

Petitioner

and

DAVID JOHNSTON

First Respondent

JOE BULLOCK

Second Respondent

MICHAELIA CASH

Third Respondent

LINDA REYNOLDS

Fourth Respondent

WAYNE DROPULICH

Fifth Respondent

SCOTT LUDLAM

Sixth Respondent

LOUISE PRATT

Seventh Respondent

AUSTRALIAN ELECTORAL COMMISSION

Eighth Respondent

Office of the Registry
  Perth  No P56 of 2013

B e t w e e n -

SIMON MEAD

Petitioner

and

DAVID JOHNSTON

First Respondent

JOE BULLOCK

Second Respondent

MICHAELIA CASH

Third Respondent

LINDA REYNOLDS

Fourth Respondent

WAYNE DROPULICH

Fifth Respondent

SCOTT LUDLAM

Sixth Respondent

ZHENYA WANG

Seventh Respondent

LOUISE PRATT

Eighth Respondent

THE AUSTRALIAN ELECTORAL COMMISSION

Ninth Respondent

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 18 FEBRUARY 2014, AT 12.01 PM

Copyright in the High Court of Australia

____________________

HIS HONOUR:   Three election petitions have been issued disputing the election of six senators for the State of Western Australia to serve in the Senate of the Parliament of the Commonwealth, one by the Australian Electoral Commission, one by Mr Zhenya Wang, a candidate at the election, and the third by Mr Simon Mead, a person qualified to vote at the election.

The AEC petition seeks an order declaring the election absolutely void.  Mr Wang and Mr Mead each seek orders declaring that the fifth and sixth persons returned as elected, Mr Wayne Dropulich and Senator Scott Ludlam, were not duly elected and declaring that Mr Wang and Senator Louise Pratt were.  In the alternative, Mr Wang and Mr Mead seek an order declaring the election absolutely void.

On 13 December 2013, I ordered that three questions of law be set down for trial separately from other issues raised by the petitions.  In my opinion, the separate questions should be answered substantially in the manner proposed by the Australian Electoral Commission.  That is, I am of the opinion that:

(a)The loss of 1,370 ballot papers between the fresh scrutiny and the re‑count meant that the electors who submitted those ballot papers were prevented from voting in the election for the purposes of section 365 of the Commonwealth Electoral Act 1918 (Cth).

(b)The Court of Disputed Returns is precluded by section 365 from admitting the records of the fresh scrutiny and the original scrutiny that bear on 1,370 missing ballot papers for the purpose identified in the proviso to section 365, namely, determining whether the loss of the ballot papers did or did not affect the result of the election.

(c)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.

(d)Although further inquiry regarding the manner in which the Australia Electoral Officer of Western Australia dealt with ballot papers reserved during the re‑count for decision pursuant to section 281 is permitted under the Act, further inquiry is neither relevant nor necessary to the disposition of any of these petitions.

The separate questions should be answered accordingly, the costs of the trial of the separate questions should be reserved and the petitions should be stood over for argument about any remaining issue, including what order, if any, should be made for the costs of the trial of separate questions on Thursday, 20 February 2014 at 12 noon in Melbourne.

I publish my reasons.

I order that:

1.The questions of law which on 13 December 2013 were ordered to be tried separately be answered as follows:

Question 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 section 365 of the Commonwealth Electoral Act 1918 (Cth)?

Answer:Yes.

Question 2: Is the Court of Disputed Returns precluded by section 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 insofar as those petitions seek relief under sections 360 and 362.

Answer: The Court of Disputed Returns is precluded by section 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 section 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.

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

(a)permitted under any, and if so which, provision of the Act,

(b)relevant to the disposition of any, and if so which, petitions before the Court of Disputed Returns;

(c)necessary to the disposition of any, and if so which, petitions before the Court of Disputed Returns?

Answer:(a)   Yes, section 281(3).

(b)No.

(c)No.

2.The costs of the trial of separate questions are reserved.

3.Stand over the further hearing of the petitions to Thursday, 20 February 2014 at 12 noon in Melbourne.

I publish those orders.  Adjourn the Court.

AT 12.07 PM THE MATTER WAS ADJOURNED