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

[2014] HCATrans 4

[2014] HCATrans 004

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 THURSDAY, 30 JANUARY 2014, AT 10.15 AM

(Continued from 29/1/14)

Copyright in the High Court of Australia

____________________

HIS HONOUR:   Mr Donaghue.

MR DONAGHUE:   Your Honour, we have provided to the Court and distributed to the parties a one‑page document that summarises the submissions that I made yesterday in relation to Woodward.  I am not intending to take your Honour back to any of that, but that is just, in point form or dot point form, the essence of the submission we make on that case.

HIS HONOUR:   Thank you.

MR DONAGHUE:   This morning if I can start by wrapping up our submissions on question 1 and then move to the topics identified as C and D in the oral outline by making good on the promise I made yesterday to address some submissions to the meaning of the phrase “prevented from voting” and in particular why we submit that your Honour should prefer the meaning that the person has physically taken the steps up to the end of 233 in the Act, that is marking the paper and putting it in the box as opposed to the paper being available to be considered in the scrutiny that counts.

The first point we make, your Honour, about the construction of that phrase “prevented from voting” in 365 is that it is not a test for invalidity of an election and that an illegal practice, including a breach of the Act concerning the conduct of the scrutiny, may lead to the voiding of an election whether or not that error is an error that prevents any person from voting, so that there is no necessary correlation between errors that will void an election and prevention from voting.

The only work that the phrase “prevented from voting” does is that it is one criteria which where it applies together with other criteria may restrict the evidence that is available to the Court of Disputed Returns in deciding what order, if any, to make under section 360.  It is an evidential restriction that operates at least in the clear case where a person never casts a ballot at all and everybody, I think, agrees with that.  It stops a person in that situation from giving evidence as to how they would have voted and that is the fact situation that, again I think, everybody agrees led to the proviso being enacted.

The question for your Honour is does it go beyond that fact situation to other kinds of errors.  We submit that looking at the question from the perspective of why it might be desirable for Parliament and why Parliament might have wished to draw the line restricting evidence a logical place to draw the line is at the place where a ballot paper is cast because at any subsequent point the ballot paper will ordinarily be available to inform the court in the exercise of its powers, the only case where that will not be so being that situation that has made its way before the Court here where the papers are lost or destroyed.

Your Honour, in writing we have developed at some length why we submit that the Court should favour the meaning of a physical casting of a vote and this morning I want to develop that submission only in two ways, first, by making some short remarks about prior authorities and second, by making some short remarks about the usage of the word “vote” and its cognates in the Act.

With respect to authority, if I can start with authorities in this Court, Mr Bell took your Honour yesterday to what he described as some “morsels” in the authorities concerning the meaning of prevention from voting.  There are two morsels that we think should be added and I probably cannot put it much higher than that, but rather than take your Honour to the authorities, if I could ask your Honour to look at paragraph 14 of our written submissions.  They are both observations of her Honour Justice Gaudron, although in one case the remarks were in a part of the reasons with which we understand Chief Justice Gleeson and Justice Gummow and your Honour to have concurred.  Without reading it out, in both cases her Honour characterised 365 as concerned with polling clerk errors or immaterial errors, pre‑election processes concerning the polls.  So that is certainly how her Honour viewed 365.

HIS HONOUR:   In a case where that was the allegation.

MR DONAGHUE:   Yes, your Honour, but her Honour’s remarks were directed at characterising the kind of thing which the section was concerned with.  I do not suggest that this is a matter of – I should make clear, your Honour, our submission is your Honour is not bound by any authority as to the meaning of this phrase.  Insofar as there are morsels that inform it, we respectfully submit those are the two clearest indications, and they are not particularly clear but they are entirely consistent with the view that we urge upon the Court that this is a provision concerned with polling.

We think the high point of the case against us by the AEC in terms of High Court authorities is Bridge v Bowen and I know I took your Honour to it yesterday and I will not dwell on it, but if I could just ask your Honour to go back to one passage in that case.  It is on page 618 of the report, where his Honour is discussing prevention.  If your Honour looks at the start of the first full paragraph on that page, in my submission where his Honour talks on the third line of that paragraph about the words “may have been prevented”, he stops at that point, does not finish the whole phrase, his Honour says:

“may have been prevented” under the first head.

He is talking about the first head in Woodward where the concept is prevention from electing; it is not prevention from voting.

HIS HONOUR:   Is that right?  Is it not no real electing at all?

MR DONAGHUE:   No real electing at all as then explained ‑ ‑ ‑

HIS HONOUR:   The word “prevented” is not – the first category of case is described without engaging the word “prevent”, is it not?  “No real electing at all”, instances include ‑ ‑ ‑

MR DONAGHUE:   Instances include prevention from voting and then instances are summarised in the phrase “prevented from voting with effect”.  That is right, your Honour.  What his Honour then goes on to do is to quote from parts of that discussion in Woodward, the first dealing with the prevention from voting physically that this is what happens in the next sentence – no, sorry – he says:

includes prevention from recording votes with effect –

and then he deals with the fact whether there was actual physical voting.  There was, and then the next few lines:

the Court inquires into the validity or invalidity of the votes given, to see whether the voters were prevented from voting with effect by reason of the official errors.  If the error was a departure, however small, from a rigid mandatory enactment, so that the vote could not be counted, there would have been a prevention as to the votes affected –

So his Honour in that part of his reasons is talking about prevention from voting “with effect” and if this case is authority for anything about the meaning of this phrase, it is not that the line is drawn at the scrutiny, it is whether the vote could not be counted.  So if the case is useful, it is useful for a broader proposition than the AEC is advancing.

HIS HONOUR:   “Could not be”, not “was not”.

MR DONAGHUE:   “Could not be counted”.

HIS HONOUR:   “Could not” – possibility, that is, consideration in the scrutiny can be counted - not included in the scrutiny, not available for scrutiny, cannot be counted.  Not “was not”, not “on the scrutiny was assigned to the excluded votes or not”.

MR DONAGHUE:   But the case that is being specifically considered in Woodward in that scenario is a case of a vote that could not be counted because it was invalid from the start.

HIS HONOUR:   No, the case considered in Woodward included the case where – it is an extreme case where you have got fraudulent counting of votes and you have positive misconduct by electoral officials, the kind of case I hope we do not ever have to grapple with, but cases predicated on the premise that the voter has done all he or she can do, including actually deposit the ballot paper in the ballot box, and then there is official misconduct where there is a false return made because there is fraudulent counting.  Now, is that not an example?

MR DONAGHUE:   Your Honour, that is one of the examples in explicating the concept, but what the case is actually about is ‑ ‑ ‑

HIS HONOUR:   I understand that point.  I do not need persuasion of the fact that Woodward v Sarsons decided the facts of the case that were then in issue.

MR DONAGHUE:   But, your Honour, my point is a little different.  My point is that in Woodward v Sarsons their Honours thought the votes could not be counted.  The reason they could not be counted is not that they could not be scrutinised, it is that they were informed because of an electoral error made before the ballot was ever cast.  So this is an example of a case – and Justice Isaacs is adopting the formulation – that does not attribute any significance to whether the vote can be looked at. 

The question is whether the vote can be – effect can be given to the will of the elector.  In Woodward v Sarsons it was held that it was a case - falling within this second limb, the vote did not have effect, but relief was refused because notwithstanding that fact when the Court looked at the votes it thought it did not make a difference.  So, insofar as there is a governing criterion to be discerned from the authority, we submit that it is not a governing criterion ‑ ‑ ‑

HIS HONOUR:   Derived from Woodward v Sarsons or to be derived from what the High Court in its early decisions understood Woodward v Sarsons to stand for?  I would have thought the latter is what really mattered – really counts.

MR DONAGHUE:   In my submission, the High Court in its early decisions did not get it wrong.  It accurately understood what Woodward v Sarsons ‑ ‑ ‑

HIS HONOUR:   I cannot say they did, can I?

MR DONAGHUE:   No, your Honour, but I also do not wish to, because we submit that the discussions in those early cases are entirely consistent with what we are putting to your Honour about the case. 

HIS HONOUR:   That is the area for debate.  I understand what you say about it, yes.

MR DONAGHUE:   Now, I will not take your Honour to them, but if your Honour still has our submissions there, if I could just direct your Honour to paragraph 9.  These are High Court statements about voting in the Act in contexts other than 365 and they, again particularly Faderson v Bridger which we have quoted in paragraph 9, plainly identifies the concept as physically marking the paper and putting it in the box, and Faderson v Bridger decided that that was what the word means in the context of the compulsory voting provisions.  We have also quoted the Evans v Crichton‑Browne Case.  Now, I accept that these are all different contexts but insofar as ‑ ‑ ‑

HIS HONOUR:   One of the great perils of this job is you write having regard to what you are dealing with and then later it is said that you have intended rather more.  It is an interesting process, it is not?

MR DONAGHUE:   Well, your Honour, I am certainly not submitting that anything has been decided, but what I am pointing to is the fact that in our submission there are a whole – insofar as the point has been considered in glancing blows, they are all glancing blows that assume the Act means what we say it means.

HIS HONOUR:   Well, you say I am at large, the AEC says I am not.  I understand that is the field for debate.  In the end I have to decide it.

MR DONAGHUE:   Indeed.  Now, I am not proposing to take your Honour to any of the single judge State authorities that have been discussed. 

HIS HONOUR:   My question remains, and it is a question not interrogative statement, what do I get out of what has happened in the various State Courts of Disputed Returns that could be valuable, could be important, should be taken into account in what I decide?  Do you say there is anything that I can or should be taking from them?

MR DONAGHUE:   The difficulty is looked at as a body of authority, they are inconsistent with one another and they are often inconsistent with each other because counsel in the case have agreed on sometimes opposing outcomes so the points have not always fully been argued and the matter certainly in none of the cases has been explored in the level of detail that it is now being explored before your Honour.  So that is one of the reasons I am not going there.  We submit, in fact, that the steps in the analysis that Justice Nagle undertook in Freeman v Cleary are correct, so to that extent your Honour sees a line of reasoning which we support.

The other thing that we do say though, your Honour, is that our friends for the AEC have placed a lot of reliance on Campbell v Easter and also quite some reliance on Varty and they spent a while suggesting to your Honour that those cases help them.  We submit that both cases are inconsistent again with drawing the line at the point of scrutiny, because in Campbell v Easter the votes were available to be scrutinised.  It was like Woodward.  It was a case where the votes were informal from the start because of an electoral official’s error, but they were available to be scrutinised but his Honour Justice Sugerman held that this was a case of prevention from voting.

So if the key is is the ballot paper there to be scrutinised, the case is inconsistent with that proposition.  Likewise in Varty, the votes were available to be scrutinised.  So our friends are taking some lines from those cases but if they support anything they do not support the line that your Honour is now being urged to draw, and so that is really a negligible defensive proposition.  The one State case that has not, I think, been mentioned that I should mention to your Honour is a Full Court authority.  It is the first case in the folder.  It is R v Carr. 

It is a very short judgment of Chief Justice Stephen for the Full Court and it is a case concerning the criminal provisions against double counting where an attempt was made by – sorry, double voting rather, where an attempt was made by the defender to say, “I am not guilty because one of my votes did not count” or “One of my earlier efforts to vote did not count and so I have only voted actually once and therefore I am not guilty”.

HIS HONOUR:   Nice try.

MR DONAGHUE:   Nice try, exactly, your Honour.  What Chief Justice Stephen says is:

The point is too clear for argument.  Voting is simply receiving a ballot paper and depositing in the box with the view of influencing the election.  It is possible that the paper may not have that effect, but it must be taken to have been deposited with that view.

So again, your Honour, it is just – it is so clear, says his Honour, that the question is not about the effect of the vote, it is about whether you put it in the box.  So that is what we say about the authorities, but as your Honour has put to me, you are at large in terms of binding authority.  In relation to the usage in the Act, and again here I will be short, the structure of the Act obviously distinguishes in Part XVI and XVIII between the polling and the scrutiny and we submit that, just as a structural proposition that tends against the proposition that when Parliament uses the word “voting” it is intending to compendiously include two processes that the Act generally keeps quite distinct.  Insofar as – and your Honour asked some of my friends yesterday about the clearest provisions concerning the usage of “vote” and its cognates, there are a couple of provisions I should alert your Honour to – 220 in the Act, if your Honour has ‑ ‑ ‑

HIS HONOUR:   Alert me to as being the best examples?

MR DONAGHUE:   As being the best examples. 

HIS HONOUR:   Namely, sorry?

MR DONAGHUE:   Section 220, headed “The polling”.

HIS HONOUR:   Yes.

MR DONAGHUE:   In 220(b) we submit that Parliament is evidently contemplating that voting or a person desiring to vote and will have finished voting between the hours of 8 in the morning and 6 at night by attending at the polling booth, so that the process is over, given the past tense used by the time one leaves.  Then in (c) you have the use of “voting” rather than voted:

The doors of the polling booth shall be closed at 6 o’clock in the afternoon and no person shall be admitted after that hour to the polling booth for the purpose of voting –

Then in (d) there is, we submit, a movement between the end of the polling process and the purposes of scrutiny with the ballot box being sealed up and then conveyed for the purposes of the scrutiny.  So that distinction or the line that we are drawing, we submit, finds some recognition there.  Your Honour also may derive some assistance from section 348 which is “Control of behaviour at polling booths” and there are various offences that can be committed at a polling booth.  If your Honour looks at subsection (3)(c) the offence of entering and remaining on the premises without permission does not apply in the case of a polling booth to:

a voter who enters the booth for the purposes of voting and remains no longer than is reasonably necessary for that purpose.

These are just examples of the Act using the phrase in the sense of the physical acts involved which is not to say that there are not all manner of other important steps that the Act requires.

HIS HONOUR:   But in context where the Act is speaking of what the elector is doing?

MR DONAGHUE:   Yes.

HIS HONOUR:   All of them, I think.  That is all of the examples to which you have presently pointed?  Is that right or am I misstating the effect?

MR DONAGHUE:   Well, I think, your Honour, it is right in the sense that because it is the elector who votes the Act consistently draws that linkage but the process of voting is a process and the Part XVI process is a process that is a combined activity of the acts of officials and the acts of voters so one has to report to the official to get the ballot paper, the official has to ask questions of the elector so that is all part of the process but it culminates in the elector’s act and we submit that ‑ ‑ ‑

HIS HONOUR:   You say it stops when the elector has done everything that the elector can do.

MR DONAGHUE:   Elector has to do and if they cannot get to there because an official stops them getting to there they would be prevented from voting.

HIS HONOUR:   That and only that is prevention.

MR DONAGHUE:   Yes.

HIS HONOUR:   I understand the submission.

MR DONAGHUE:   Well, your Honour, I do not know that I need to say anything more about that then on question 1.  If I could move then to the third part of our submissions which concerns the submissions that have been made to your Honour about – they have been developed – and this part of the case appears to be assuming increasing importance as the steps of first submissions reply, oral submissions have gone on.  It has been put to your Honour that for the Court to look at these records of the fresh scrutiny would be inconsistent with reaching a result through scrutiny and for that reason is unavailable.

HIS HONOUR:   Now, can I just try to work out some – I was going to say boundaries, but some markers that may bear upon the development of this argument.  Can I do it by reference to 362 and can I do it through the prism of what I understand your case to be so that I can understand how the argument develops?  Your first proposition was, as I understood it, that the Court may take account of the records of the initial and fresh scrutiny in deciding whether the result of the election, as declared, was or was likely to be – I walk past whether there is in truth any distinction between those ideas - was or was likely to be affected?  That I understood to be your first submission and that you made no submission about the “likely to be affected” question if the Court may not take account of the records of fresh and initial scrutiny.  So far so good?

MR DONAGHUE:   So far so good.

HIS HONOUR:   Step two is, you say, for 365 purposes, no prevention from voting and we have just – as I understand it – concluded what you wanted to say about that?

MR DONAGHUE:   Indeed.

HIS HONOUR:   Third, what relief do you say I can or should give in respect any of the petitions that have been filed?  Do you make any submission about what relief I can or should give under those petitions, in particular, take AEC?

MR DONAGHUE:   We make the submission that at this point of the case your Honour cannot get any relief on any of them because your Honour has not yet heard the arguments you would need to hear on that topic.  The reason that I say that, your Honour, is this.  The last submission I am going to make, and I can jump to it now if that would be convenient, is that even if your Honour were to find that 365 stops you looking at the records for the purpose of deciding whether or not the result was affected your Honour might then conclude because there are 1,370 votes about which I know nothing and given the margin, whatever the test it was likely to be - the declared result on the re‑count was likely to be affected.

HIS HONOUR:   Was likely to be affected.

MR DONAGHUE:   Let us assume your Honour gets to that point.

HIS HONOUR:   Yes.

MR DONAGHUE:   We then say, even if the proviso stops you looking at the records up to that point you may then look at the records.

HIS HONOUR:   I may then – that is to say, is it a necessary part of your case that the Court may construct the results that should have been obtained by taking account of what was found on re‑count, whether adjusted or unadjusted on account of alleged errors in respect of reserve votes.

MR DONAGHUE:   Yes, we say both the Court can and that it should.

HIS HONOUR:   Coupled with the records from fresh and initial scrutiny?

MR DONAGHUE:   Yes.

HIS HONOUR:   And that the Court can and should thus declare not only that persons who were returned were not duly elected, if that were established, but can and should declare who was duly elected.  Is that right?

MR DONAGHUE:   Yes.  I accept that is a further step that last step, but yes, that ‑ ‑ ‑

HIS HONOUR:   But a necessary step?

MR DONAGHUE:   Yes.  Well, if your Honour is – right.

HIS HONOUR:   It seemed to me that that is where the arguments ultimately had to get to.

MR DONAGHUE:   Because you have to fill the fifth and sixth vacancies at the end of the day.  Either you leave the current fifth and sixth people there, you fill them with the two unsuccessful candidates or you have a new election, that is the universe of possibilities.

HIS HONOUR:   That is the universe of debate, is it not, which requires the Court to determine, does it not, who either was or should have been declared duly elected to five and six vacancies?  So far so good?

MR DONAGHUE:   Yes.

HIS HONOUR:   Duly elected should be construed how, in particular should it be construed as meaning duly elected in the sense of elected in conformity with the Act?

MR DONAGHUE:   Largely, yes, but not as an absolute unqualified position and Wood is going to be the basis for that submission in a nutshell because in Wood you have an unqualified candidate elected.  The Act did not deal with the situation of how you count a vote for such a person and what the Court did was analogise with the position that would apply for a deceased candidate and then directed the AEC to conduct the re‑count on that analogy but in a situation where the Act itself would not have permitted the AEC to do what was done without the Court having told it to do so.  So, one part of our case is that this Court’s powers go wider.

HIS HONOUR:   At some point in your argument and the argument advanced both by the Wang and Mead petitions it will be necessary to identify the statutory footing for the submission that the Court’s powers extend to declaring someone duly elected according to an assessment, according to an ascertainment of the result of the election otherwise than by scrutiny, but by combination of scrutiny and records made in the course of earlier scrutiny.

MR DONAGHUE:   That was what I was about to embark on.

HIS HONOUR:   Sure, and all that in circumstances where here we come back into 362(3).  It is notable that the “unless” clause in 362(3) and its reference to “it is just” is attached only to two cases, not three.  It is attached to “declared not . . . duly elected or that the election . . . be declared void”.  It is not attached and there is a notable omission of any power in 362(3) for the Court to act on the basis that it is just that, somebody be declared duly elected.  The question becomes then, what weight are we giving to “duly”.  Now, I have put that on the table so that the parties can deal with it.

MR DONAGHUE:   Thank you, your Honour.  Can I just address that last point your Honour has made immediately?  In our submission, 362(3) is not itself the power that your Honour would be exercising.  It is a fetter on the power under 360(1)(vi) and (vii).

HIS HONOUR:   Yes.

MR DONAGHUE:   So that, in the event that in the third case your Honour posits the fetter does not apply, the question then is, we submit, one under 360(1)(vi) and (vii) and 360(2).

HIS HONOUR:   That is “duly elected” without any reference to “it is just that”.

MR DONAGHUE:   Well, your Honour would need to be satisfied that of the two limbs in order to declare someone was not duly returned, because that would be a precondition to ‑ ‑ ‑

HIS HONOUR:   I understand that, but I am talking about declaring who was duly elected.

MR DONAGHUE:   Well, the question would then come in:

on such grounds as the Court in its discretion thinks just and sufficient ‑

It comes in through 360(2), not through 362(3), but it is still a question directed to the justice of the ultimate outcome.  So that is how we submit those provisions intercept.  Before I come to the question of the records of the fresh scrutiny, can I deal with your Honour’s point about how can I declare someone to be duly elected in circumstances where that is not strictly in conformity with the Act, and can I give ‑ ‑ ‑

HIS HONOUR:   Or at all.

MR DONAGHUE:   Well, can I give an example?

HIS HONOUR:   It is either in conformity or it is not.  It is not strictly in conformity; it is either in conformity with something the Act permits, or it is not.

MR DONAGHUE:   Can I give your Honour this example which I hope is a simple example but which on examination I suppose may turn out not to be?  The case of a margin of – declared margin of five votes where there were 10 voters who attended the polling station, did not have their ballot paper appropriately marked by the officer but otherwise recorded clear votes in favour of the other candidate, the undeclared candidate.  The Electoral Commission has no option by reason of section 268 of the Act but to declare those votes informal and so they will not be counted and so the other candidate wins by five with those 10 votes missing.  But if a petitioner then comes to the Court of Disputed Returns and says, “There was an error made by an official in failing to initial my ballot paper which had the consequence that my vote was invalid”, and so I do not quibble with the fact that the Commission could not have counted it but, nevertheless, that is an error that was likely to have affected the result, as you can tell by looking at these 10 ballot papers which make it clear that the other candidate would have won had that error not occurred.

HIS HONOUR:   What, have the Court declare that the other candidate was duly elected when the Act required that the votes submitted be excluded?  Wow.

MR DONAGHUE:   Your Honour, in that scenario the candidate – the petitioner clearly jumps the hoop of showing that the result was likely to be affected, would, in our submission, be able to demonstrate that it was just that the candidate who was declared to have been elected returned should not have been returned, and so the Court of Disputed Returns then says, “Do I have to order a new election for this position or can I declare the candidate who should have been elected ‑ ‑ ‑

HIS HONOUR:   No, in that case posited you do not declare that the person was not duly elected.  The person was duly elected.  The person was elected in accordance with law; end of game.  No question of ordering a new election arises.  No question of ordering somebody else to be elected arises.  The Act has been applied according to its terms.  It has led to a result.

MR DONAGHUE:   Well, the Act has not been applied in accordance with its terms.

HIS HONOUR:   Why?

MR DONAGHUE:   Because people have been disenfranchised by the reason of the acts of officials.

HIS HONOUR:   True.

MR DONAGHUE: I have posited 10, but it could be hundreds or thousands of people who have been affected by these errors so there has not, in our submission, in that scenario been a lawful election. People have been deprived of the very vote that the Constitution in section 7 in the provisions your Honour raised yesterday would accord to. In our submission, the example I have given is a traditional example where the Court of Disputed Returns would say, “The other guy won”, and would so declare, and that is why it looks at the ballot papers in that kind of example, in order to determine the result that had the error not occurred – which is the very kind of thing that was being done in Woodward when people looked to see whether – and there are a number of examples.

Indeed, in Kean v Kerby when Justice Isaacs was going through hearing evidence voter by voter about what was happening, he was looking to see whether or not it made a difference.  But in a scenario where you have clear evidence before – where the Court of Disputed Returns has clear evidence as to who should have been elected, we submit that it is not necessary to void the whole election and start again.  That is the scenario where someone can be declared as returned as elected.

Now, your Honour, I am conscious of the time, so can I take your Honour to the submissions I want to make about this use of the records and the idea that that would not be a result through the scrutiny and consider that question against two slight counterfactual variations of what occurred here?  As your Honour knows, the initial request for a re‑count was refused by the Western Australia electoral officer but ultimately an appeal to the Electoral Commissioner was allowed.

Had that appeal been refused, it would not have been arguable that the 1,370 persons whose votes had in fact been lost unbeknownst to anyone had been prevented from voting and the result would undoubtedly have been valid.  The result of the election would undoubtedly have been valid.  There would have been no basis to complain about the declaration of the candidates on the basis of the fresh scrutiny records, the very records that your Honour is being asked to rely partly upon in this case, had that administrative decision made by the Electoral Commissioner been made differently.

The next point to make, your Honour, is that on the facts of this case the re‑count that the Commissioner did in fact order was not a re‑count of all of the votes.  It was a re‑count of the above the line votes and the votes that the Commissioner described as obviously informal.  They were the only ones included.  They left out according to the agreed facts at paragraph 35 about 4 per cent of the total votes or, by our calculations, about 50,000 voters.  When the AEC following the re‑count declared particular candidates to be elected, it did not ignore the 52,000 people whose votes had not been re‑counted.  It combined the records of the fresh scrutiny for those voters.

HIS HONOUR:   I well understand that to be so, yes.

MR DONAGHUE:   I am trying to take the point in steps, your Honour, but what that is is an example of what has been pejoratively termed mixing and matching of records of the fresh scrutiny with records determined on a re‑count.

HIS HONOUR:   No, it is not.  Anyway, go on.

MR DONAGHUE:   It is the record, your Honour, of all of the votes that were actually re‑counted, but you have to add to them the votes that have not been re‑counted.

HIS HONOUR:   Yes, I understand that.  It does not need the mix and match point at all, I would have thought, Mr Donaghue, but if you say it does I will consider it.  Yes.

MR DONAGHUE:   Your Honour, the next step in the argument is that had the missing votes been discovered – there was a week between the refusal of the initial re‑count and the decision to order the re‑count ‑ had the missing votes been discovered in that period of time, there is no question that it would have been open to the AEC to order a re‑count in terms that excluded the ballots that had been lost from the particular divisions which are identified in the agreed facts – Pearce and Forrest ‑ particular boxes, to re‑count all of the remaining almost 1.3 million votes and to combine the records of the fresh scrutiny of those missing ballot boxes with the records in the re‑count.  That would obviously have been authorised by the Act, because 278 of the Act plainly authorises a partial re‑count of votes by reference to parcels as determined by the Electoral Commissioner.

That, as your Honour would understand, is the very situation that confronted Justice Barton in Blundell v Vardon.  He knew before the re‑count was ordered that some votes had gone missing.  He said, “Well, what implications does this have?” and he says, “Well, what I’ll do is I’ll order a re‑count of the votes I can re‑count and I’ll combine it with the missing records”.  If that is right, your Honour, and we submit it is clearly right that the Commissioner could have engaged in a re‑count of that kind, then the Commissioner could have mixed and matched the records of the missing votes just by adjusting the re‑count that was ordered.  There is, we submit, as a matter of substance absolutely no difference between – what it comes down to, the AEC’s submission comes down to this, that this election was rendered irretrievably invalid because of the re‑count, not because of the loss of the votes.

That did not render the election invalid because that would have had no effect if there had not been a re‑count or if there had been a re‑count that had excluded them.  The thing that rendered the election invalid and irretrievably invalid was that the re‑count was ordered in terms that extended to the votes that had been lost and that in circumstances where the Commissioner did not know that the votes had been lost at the time that that re‑count had been ordered.  That, your Honour, is an accident of timing.

It is not a point of substance that says, your Honour, that there is some fundamental problem with combining results of the fresh scrutiny with the results of a re‑count of some of the votes.  That is a conventional ordinary thing to be done.  Your Honour is being asked to attach determinative and unfixable significance to the fact that the re‑count order that was made by the Commissioner was made in the terms that it was in ignorance of the relevant facts when, had the facts been known, it is impossible to conceive that the re‑count would have been ordered in the terms that it was.

HIS HONOUR:   On what footing would I make that conclusion, Mr Donaghue, really?

MR DONAGHUE:   Well, your Honour knows because it is in the agreed facts that the reason the Commissioner ordered the re‑count was not because of any identified problem with the votes.  He just said given the close margin we should – it is prudent in the interests of confidence in the system to check.  It is hard to see how it could have been intended to enhance confidence in the system to order a re‑count that was known to include votes that could not be re‑counted.

But ultimately, your Honour, the point that we make is this, that your Honour is not now standing in the shoes of the Electoral Commissioner, but if your Honour accepts, and we submit, with respect, that your Honour must accept, that the Commissioner could have saved – if he had known about the missing votes before the re‑count order was made, if he could have saved this election either by not ordering a re‑count or by ordering a re‑count that did not extend to the missing ballots, then the Court is in, in substance, the same position, that there is nothing inconsistent with anything in the Act for your Honour to say the AEC could have relied on the records of the fresh scrutiny and added them to the records of the re‑count of all papers that could be found and achieved the result, I can therefore do the same thing.  We respectfully submit that the submission that that in some way transgresses upon some fundamental structural feature of the Act cannot be maintained.

Now, your Honour, I promised to refer your Honour to Wood and can I take your Honour to that to support the aspects of the submission that I have just made? It is 167 CLR 145. Page 166 is the critical point, or from the bottom of 165. The Court is recognising that the ballots that had actually been cast by the electors in this case were not effective insofar as they contained votes for the unqualified candidate, but otherwise the Court was prepared to treat them as effective. It then had to deal with the question of what should be done in order to fill the 12 vacancies, and if your Honour looks about five or six lines down on 166 the Court says:

It is as though the unqualified candidate were deceased –

It refers to the provision that would have applied if the candidate had been deceased and indicates that the Act should be construed in order to give effect to the same policy objective, at the end of that paragraph:

By construing Pt XVIII in this way, the true result of the polling – that is to say, the true legal intent of the voters so far as it is consistent with the Constitution and the Act – can be ascertained.

So the majority were prepared to countenance an adjustment of the strict terms of the Act so as to give effect to the true intent of the voters.  The way that that then played out, at the end of this judgment the Court said, “We haven’t heard argument about what, if any, further directions we should make to give effect to this.  Come back if you need to”.  The AEC did come back, we submit in correct recognition of the fact that without some assistance from the Court or some direction from the Court it would not have been open to it to do the thing that was referred to at the top of 166, because that would not have been in accordance with the terms of the Act.

The orders that the AEC sought, that his Honour Chief Justice Mason made, are set out on 173 of the report, and they are, in our submission, instructive because order (1) is an order to treat the ballot paper – votes indicated on the ballot paper opposite the name of the disqualified candidate as if they were for the candidate next in order and to re‑number.

Order (2), the “counting and recounting be conducted” not strictly in accordance with the relevant provisions of section 273 but “as nearly as practicable in accordance with the relevant provisions of s. 273”, so his Honour is clearly countenancing an adjustment on the re‑count from the strict operation of the terms of the Act.

Order (4), in respect of group voting tickets, there had only been two people in the relevant group, and Mr Wood being disqualified, there was only one who would not have been eligible to be counted as a group, but that is adjusted so that votes for that group are treated notwithstanding that the candidate acting alone would not have been able to have been registered pursuant to that provision.

Then in orders (5) and (6), far from the records of the fresh – or the relevant scrutiny having been disregarded, rulings about the formality and informality from the earlier count are preserved, so it is not necessary to just forget it all and go back ‑ ‑ ‑

HIS HONOUR:   Well, were those orders made?

MR DONAGHUE:   Yes, they were.

HIS HONOUR:   Where do I see that?

MR DONAGHUE:   At the end of the – actually, your Honour, I am hoping I am not misleading your Honour – at the end of the judgment.

HIS HONOUR:   Page 175?

MR DONAGHUE:   Yes, that is right, for which his Honour made orders in accordance with the notice of motion, but maybe he stopped halfway.

HIS HONOUR:   Stopped at order 4, I thought.

MR DONAGHUE:   I apologise, your Honour.  I have misled your Honour in that regard.  But the submissions that I make up in relation to orders 1 to 4 stand, we submit.  His Honour was clearly modifying the operation of the Act in respect of the re‑count provision, and as we understand it, a candidate was cleared on that footing.

I am indebted to my learned friend for Mr Wang.  Ultimately, his Honour made order 5 as well as – if your Honour would excuse me for one minute.  I think I have misread this, actually.  Yes.  If your Honour looks at order 2 as made, in the middle of page 175, his Honour refers to making orders as set out in paragraph 9 of the affidavit “and numbered (1) to (8) inclusive”.  Does your Honour see that?

HIS HONOUR:   Yes.

MR DONAGHUE:   Then the orders that I was reading from 173 are as appears just before the quote from the orders, the “directions set out in par. 9 of that affidavit”.

HIS HONOUR:   Yes.

MR DONAGHUE:   So his Honour did make, it seems, the orders set out in that paragraph.

HIS HONOUR:   Well, that is not apparent to me.  You will need to step me through it.  You may be right, but it is not apparent to me.

MR DONAGHUE:   Order 2, reflected on page 175, is:

That the further counting and recounting of the ballot‑papers be conducted in accordance with the directions set out in par. 9 of the affidavit of [Mr] Hughes sworn 19 May 1988 and numbered (1) to (8) inclusive –

with one substitution, substituting “preferences” for “preference”.

HIS HONOUR:   Yes.

MR DONAGHUE:   Then when your Honour goes back to page 173, your Honour will see that there is a reference to the affidavit of the Electoral Commissioner:

able to conduct the further counting or recounting required . . . subject to the Court giving certain directions set out in par. 9 –

numbered (1) to (8).  So we submit that the order that his Honour in that order 2, consistently with my original submission, is that his Honour did make the orders that the Commission invited to be made.

HIS HONOUR:   Yes.

MR DONAGHUE:   They are orders not just modifying the operation of the Act in some way, but giving effect to formality rulings reached in the earlier count, and indeed in order (8), not physically re‑counting the ballot papers that were marked with group ticket voting.  The physical counting of those ballot papers appears to have been allowed to stand, but just adjusting the direction of the votes according to the group tickets.

HIS HONOUR:   In part, there were directions for a partial re‑count, a process contemplated by the Act.

MR DONAGHUE:   Sorry, your Honour, I do not understand that.  Directions ‑ ‑ ‑

HIS HONOUR:   In part, paragraphs (5), (6), et cetera, as appearing at page 173, were directions which yielded the result of a partial re‑count, were they not; those which had been declared informal were to be treated as informal, et cetera.

MR DONAGHUE:   Your Honour, if that result is open, the same result is open to your Honour now.

HIS HONOUR:   What, a partial re‑count?  Of what papers?  There cannot be a partial re‑count of the lost ballot papers.

MR DONAGHUE:   The records of the part that cannot be re‑counted are the records that can be used to declare the result, if it were needed.  We do not say that a partial re‑count is necessary here because the partial re‑count has already occurred.  It has occurred of all of the votes that ‑ ‑ ‑

HIS HONOUR:   A partial re‑count has not occurred.  The partial re‑count that was directed did not occur in accordance with the Act.  That is the premise for all petitions.  I had not understood any party to dispute that the partial re‑count which was ordered did not take place in accordance with the Act, and could not.

MR DONAGHUE:   Your Honour, the re‑count that was ordered did not take place because it was ordered in terms that extended to papers that were incapable of being re‑counted.  Our submission is that because, as a matter of substance, there was no impediment to a re‑count being ordered of the kind that re‑counted all available votes and combined it with the record of the fresh scrutiny, as Justice Barton did in Blundell ‑ forgetting about Blundell, as is obviously open as a matter of principle having regard to the power to order a partial re‑count, there is nothing in substance preventing this Court from giving effect to the missing records and combining them with the records of the re‑count because that is, as a matter of substance, precisely what the AEC could have done.

Insofar as there is said to be some impediment to that, the judgment in Wood, inconsistently with the submission Mr Merkel put to your Honour yesterday, does not support the proposition that your Honour is rigidly confined by what would have been available to be done by the AEC, in any event; quite the contrary, having regard to the orders that the Chief Justice made in that case.

Your Honour, conscious of the time, can I make final brief submissions about our fourth point, which I think I have probably partially touched on already?  If your Honour turns to 365, which your Honour probably knows by heart by now, it is, we submit, plain on the face of the proviso that the prohibition that it contains upon the admission of evidence is a prohibition that is directed to a purpose that is identified expressly in the Act, the purpose being to determine whether the error “did or did not affect the result of the election”.

Even if your Honour finds inconsistently with every submission that we have made about 365 that the proviso applies, it can apply no more widely than to prevent the admission of evidence for that purpose.  But it is plain, having regard to 362(3) that there are other issues that your Honour will need to consider beyond whether or not the result was likely to be affected, that, we submit, are rationally informed by the knowledge that in this case while 1,370 votes were lost, the large majority of those votes were for the Liberal candidates.  Most of the rest of them were for the ALP candidates, and only 23 of them bore upon the result at the 50th exclusion point.  That knowledge is relevant to what your Honour should do with the petitions, we submit, because ‑ ‑ ‑

HIS HONOUR:   In what respect?

MR DONAGHUE:   Because while your Honour might be concerned by whether – or your Honour might think that looking at the reserved ballot papers is not going to be a useful exercise given an absolute number of reserved ballot papers that are challenged if the number that your Honour is concerned with is 1,370.  If the number is 23, then the task that confronts the petitioners in persuading your Honour that they should have been returned is very much easier to discharge because if your Honour were to be persuaded by those petitions that Mr Bow should have won by 100 or 200 votes at the 50th exclusion point, then we submit it would – knowing that the missing votes in fact bore upon the critical question that the 50th exclusion point only as to 23 of them – it would, we submit, be hard for your Honour to be persuaded that the just thing to do was to vacate the whole election, including the election of Senators who were evidently not affected in any way by the errors that had occurred, because

your Honour would, we submit, be able comfortably to know what the true intent of the election was, using the expression lifted from the joint judgment of seven members of the Court in Wood.

HIS HONOUR:   But it is not only whether it is just that the whole election be declared void.  You have to say that that should not ensue because the Court can and should declare who was duly elected.  Absent that, you are left with a conclusion about “not duly elected” and the premise is no conclusion about who was duly elected.  That is necessary.

MR DONAGHUE:   But if “duly elected” means that votes that were informal were properly ruled informal, then to give your Honour ‑ ‑ ‑

HIS HONOUR:   Well, a possible point of view is that “duly elected” means elected in accordance with the Act.

MR DONAGHUE:   That is a possible point of view.

HIS HONOUR:   Is there any other competing point of view that I need to consider?

MR DONAGHUE:   Yes, your Honour.

HIS HONOUR:   Namely?  “Duly elected” means ‑ ‑ ‑

MR DONAGHUE:   That “duly elected” in the context of a Court of Disputed Returns allows the Court to overcome errors that it is established have been made by officials in administering the Act.  Whenever an official takes a valid vote and wrongly rules it to be informal, that official is making a judgment that is an illegal practice under the Act if they get it wrong.  That is the kind of thing that is conventionally fixed by a Court of Disputed Returns.

But the clearer case, and it comes up again and again in the authorities in the single judge decisions in Courts of Disputed Returns, are cases where officials at the polling booth muck things up in ways that deprive voters of having any opportunity to have their votes considered.  If your Honour were to hold that people have been duly elected, so that a Court of Disputed Returns is powerless in a case where people are disenfranchised because of voter error at the polling booth, that would be a massive confinement of the traditional role of a Court of Disputed Returns.  We respectfully submit that that meaning is fundamentally inconsistent with the role that a Court of Disputed Returns ordinarily plays.  Your Honour, I have taken a lot of time.  Unless your Honour has any further questions, those are my submissions.

HIS HONOUR:   Yes, thank you.  Yes, Mr Lang.

MR LANG:   Your Honour, the petitions before the Court of Mr Mead and Mr Wang are not the same.  The Mead petition, the petition of my client, does not urge the Court to affirm the result of the fresh scrutiny, or to determine the result of the election by combining the records of the original or fresh scrutinies with the result of the re‑count.  We are not seeking mix and match or some sort of shandy, your Honour.  That is not our position.

Contrary to what is said in particular in terms to Ludlam’s written submissions, Mr Mead does not suggest that the Court should conduct a notional re‑count by combining the records with the results of the re‑count.  That is not our position at all.  The primary argument in Mr Mead’s petition is that if the reserved ballot papers are admitted or rejected correctly, Mr van Burgel, not Mr Bow, should be excluded at the 50th exclusion point of the re‑count.

Mr Mead accepts that in order for that argument to succeed he must establish that in those circumstances the loss of the missing ballot papers did not affect the result of the election and we say that squarely in our petition, your Honour.

HIS HONOUR:   Sorry, did not affect?  Did or did not affect?  Loss did or did not affect?

MR LANG:   Did not affect, did not affect.  Our case, your Honour, is that that the starting point is for the Court to rule on the reserved ballot papers and once that has been done the loss of the missing ballot papers does not affect the result of the election because Mr Bow will be sufficiently ahead of Mr van Burgel at the 50th exclusion point but it simply will not matter.  The net effect of the ‑ ‑ ‑

HIS HONOUR:   How do I determine sufficiently ahead without knowing what is in the lost papers?

MR LANG:   You have to look at the secondary records, your Honour, and that is part of our case.  So we argue ‑ ‑ ‑

HIS HONOUR:   So why is not there a mix and match happening?

MR LANG:   Because it is for a different purpose that the Court is being invited to look at the secondary evidence of the missing ballot papers, not for the purpose of aggregating those votes with the votes on the re‑count of the ballot papers that were not lost, but for the purpose of determining whether the result of the election was likely to be affected by the illegal practice.  It is a very different position from that advanced by Mr Wang or, indeed, on behalf of the Liberal candidates.

So the starting point ‑ your Honour, this situation has, if I may say so, arisen because of the two points that the AEC raised at the original directions hearing on 12 December.  The first point was whether any evidence could be admitted in relation to the records of the missing ballot papers, and that has been debated extensively over the last two days.  The second point they raised originally, your Honour, was that the reserved ballot papers could not be looked at all either.  Now, that position has subsequently been resiled from, but it was only on the basis that those two points needed to be determined as preliminaries, that my clients agreed to the process that has been conducted by way of determination of these preliminary questions.  In our submission, the way that the matter should have ‑ ‑ ‑

HIS HONOUR:   Yes, those orders were not made by consent, Mr Lang.  Those orders were imposed on the parties by me.  It is not a question of whether you agree.  Yes, go on.

MR LANG:   Indeed, your Honour, I was asked whether I thought they were appropriate by your Honour and I said I did, but in the circumstances where it was said by the AEC that the reserved ballot papers could not be examined.  If that had not been the case, your Honour, I would have submitted that the first step in the process should be the examination of the reserved ballot papers to see what effect they had on the margins in this case.  Clearly, if Mr Bow is ahead of Mr van Burgel by some hundreds of votes, it is a vastly different situation from Mr Bow being behind Mr van Burgel by a matter of a couple of votes.  That is where the question that your Honour raised yesterday of substantially accurate comes in.

HIS HONOUR:   First, the AEC alleges illegal practices occurred.  Do you dispute that there were illegal practices constituted by and resulting from the loss of ballot papers?

MR LANG:   Yes.

HIS HONOUR:   You say there were no illegal practices.

MR LANG:   No, we say that was an illegal practice.

HIS HONOUR:   You say it was ‑ ‑ ‑

MR LANG:   Whether it affected the result of the election is a different question. 

HIS HONOUR:   Affected which result?  The result as declared?

MR LANG:   As declared.

HIS HONOUR:   The result as declared surely was affected when it is observed that fresh scrutiny went one way.  Re‑count, on which the result was founded, went the other.

MR LANG:   What affected the result of the election primarily, your Honour, was the illegal practice of the incorrect rulings made by the Australian Electoral Officer for Western Australia in relation to the reserved ballot papers.  That question needs to be determined, in our submission, first.  If that question ‑ ‑ ‑

HIS HONOUR:   Why?

MR LANG:   Because, your Honour, to reiterate our case, once the reserved ballot papers are ruled on correctly, our submission is that the missing ballot papers will be irrelevant.  They cannot have affected the result.  The net effect of them will be irrelevant, absolutely irrelevant.

HIS HONOUR:   Yes.

MR LANG:   So to go back to what we say in our outline of argument, your Honour, the secondary evidence of the missing ballot papers shows that only a small number of them were cast for groups which could have affected the result of the election and the net margin, furthermore, of those ballots favoured Mr Bow.  If the reserved ballot papers are ruled on in the manner for which we contend, and the secondary evidence is admitted, then the loss of the missing ballot papers which favoured Mr Bow over Mr van Burgel will not have affected the result of the election at all. 

The relevance of the records is not to add them to the tally, which will result from direct consideration of the reserved ballot papers, but to establish that in those circumstances their loss did not affect the result.  That is our position.  Now, where the records are substantially accurate in our petition at paragraph 32, contrary to what has been said on behalf of Mr Dropulich, any alleged unreliability of those records is a question of weight, not of admissibility.  The reliability of the records may be a question of fact and agreed to be determined at a future date, the significance of which will depend on the margin which exists after reconsideration of the reserved ballot papers. 

Our alternative case is that if no evidence can be admitted of the records of the missing ballot papers, then the number of reserved ballot papers in dispute is insufficient to overcome the uncertainty which would arise from assuming that nothing can be known about them and in that scenario, which is the one that the AEC contends, we accept that the election would have to be declared absolutely void.  So, your Honour, to put that more sharply, we do not accept that the notional re‑count is a proper basis for determining this election.  That is not our position.  That would be unsatisfactory.

In relation to the specific questions that the Court has raised, as I indicated shortly before the adjournment yesterday, your Honour, we largely adopt the submissions made by Mr Donaghue on behalf of the Liberal candidates. We say that neither the text of the proviso to section 365, the structure of the Act, the legislative history of the enactment or for that matter section 7 of the Commonwealth Constitution, support construing “prevented from voting” to mean prevented from voting with effect or prevented from casting a ballot paper which is considered as part of the determinative scrutiny.

Your Honour, on a plain reading of the text of the proviso, an elector cannot have been prevented from voting if he or she has actually voted.  The text and structure of the Act establish that voting is an activity undertaken at an identifiable time and place by electors and during polling, and Mr Donaghue has taken you to specific provisions, in particular section 220, and the provisions around there.  Whether an elector has voted does not depend upon whether his or her ballot paper was considered in the scrutiny and we have made more detailed submissions about that in our submissions in‑chief at paragraphs 8 to 21.  There is nothing, your Honour, in the text of section 365 or its location in the structure of the Act to suggest that voting in the proviso should be given any different meaning.

The legislative history of the enactment of the proviso also supports a construction of “prevented from voting” to mean prevented from actually voting by deposit of a ballot paper.  It is clear, your Honour, that the amendments to what was then section 194 of the Act, that were introduced in response to Kean v Kerby, to change the onus of proof to reflect English law and to protect the secrecy of the ballot and we make those points in our submissions in‑chief at paragraphs 22 to 36.  The plain purpose of the insertion of the proviso was to prevent oral evidence of voting intention being adduced after the event from electors who had been physically unable to actually vote because of official error and that is said in the second reading speech and the other speeches, both in the Senate and the House of Representatives.

HIS HONOUR:   It is at least a procedure which forecloses reservation of any of the lost ballot papers.  It is a procedure which – I say forecloses ‑ it is a procedure which does not allow of any reservation of lost ballot papers.  It is a procedure which does not allow of any scrutiny of lost ballot papers beyond whatever significance is given to the tabulation made at initial and fresh scrutiny.

MR BELL:   And it has built into it an assumption that the outcome at the fresh scrutiny or original scrutiny state in respect of the 1,370 missing ballots was right or was broadly right.  That is when one comes into what I think Mr Gleeson referred to as the paradox, the paradox being that the greater the success of the petitioners, the other two petitioners, in making challenges to the reserve votes and they need to make, even on their own case, a certain number of successful challenges and in a sense on their own case the more the better, the paradox is that that necessarily weakens an essential plank in their argument, namely, that the Court can be satisfied of what it needs to be satisfied and just - your Honour, the paradox, the greater the success there large questions are then begged in respect of the evidentiary value of such records as there are of the 1,370 missing votes who were, on our case of course, prevented from voting. 

Here, there is an attempt to take their votes into account, but with not only the inability for any candidate to challenge and reserve in respect of those ballots, without any knowledge of the manner in which the relevant officers analysed those votes – it is not only the 120 which were declared informal, it is the entirety of them because it cuts both ways.  If there were formal votes admitted as formal but which may not have been, not only would it be important to note that, but also how that particular vote was directed, how its preference flow was indicated.

So, at the level of – not so much principle, but the submission that we are only dealing with small margins, et cetera, and one can use Mr Barlow’s expression “get into some sort of statistical or percentage analysis”, that would result in an outcome which would involve, in large measure, speculation as to the reliability of records and speculation as to what particular ballots in truth recorded as to – ballots which are not available recorded as to the voting intention.  It is not just the mixing and matching, it is ‑ ‑ ‑

HIS HONOUR:   But the mixing and matching point, if it is a good one, is a point of law.  The points most recently made are points about judicial fact finding, are they not?

MR BELL:   Yes.  A point of law is because you cannot get on the facts of this case – because of the numbers, 1,370, because that number far exceeds the number of reserve votes or reserve votes in play, the Court is never going to be able to give the relief being sought by those petitioners which necessarily involves a re‑count.  That is the reason we gave the answer to question 3 “no”, not necessary, not relevant because no utility would be served by that process; power to do so, yes, but no relevance or ultimately because no utility.

That really leaves standing my client’s petition, and on the hypothesis that the relief sought by the other petitioners is not able to be granted, they, as we understand their position, would fall in with what we seek, namely the voiding of the election and a new election to follow.  I think the only party who would dissent from that course is Mr Dropulich.  We have addressed his arguments in detail in writing.  If it please the Court.

HIS HONOUR:   Thank you, Mr Bell.  I will consider my decision in this matter.  Adjourn the Court to 3.30, Monday next in Canberra.

AT 3.04 PM THE MATTER WAS ADJOURNED