The Australian Electoral Commission v Johnston & Ors; Wang v Johnston & Ors; Mead v Johnston
[2014] HCATrans 3
[2014] HCATrans 003
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 WEDNESDAY, 29 JANUARY 2014, AT 10.16 AM
Copyright in the High Court of Australia
____________________
MR J.T. GLEESON, SC, Solicitor-General of the Commonwealth of Australia: May it please the Court, I appear with MR A.S. BELL, SC and MR P. KULEVSKI for the Australian Electoral Commission in each petition. (instructed by Australian Government Solicitor)
MR S.P. DONAGHUE, SC: May it please your Honour, I appear with MR D.W. BENNETT for the first, third and fourth respondents to each of the three petitions. (instructed by Colquhoun Murphy)
MR A.D. LANG: May it please the Court, I appear with MR E.M. HEENAN for the second and eighth respondents in C17/2013, for the second and seventh respondents in P55/2013 and for the petitioner in P56/2013. (instructed by Slater & Gordon Lawyers)
MR J.A. THOMSON, SC: May it please the Court, with MR D.B. SHAW, I appear for the fifth respondent in all petitions. (instructed by DLA Piper Australia)
MR R. MERKEL, QC: If the Court pleases, I appear with my learned friend, MS F.I. GORDON, for Senator Scott Ludlam, the sixth respondent, in each matter. (instructed by MDC Legal)
MR K.A. BARLOW, QC: May it please the Court, I appear with MR T.O. PRINCE for the petitioner in P55 and the seventh respondent in the other two matters. (instructed by Hopgood Ganim Lawyers)
HIS HONOUR: I understand the parties have agreed on the order in which submissions will be made and have agreed on a division of time. Is that right, Mr Solicitor?
MR GLEESON: We have certainly agreed upon order. There is an agreed division of time which your Honour should have received a copy of now, perhaps, which I think is agreed between everyone save for one party, Mr Wang.
HIS HONOUR: It is called verballing your opponent, Mr Solicitor. Yes, Mr Solicitor.
MR GLEESON: We have also provided your Honour with an outline of submissions.
HIS HONOUR: Yes.
MR GLEESON: Listed before your Honour are three separate questions within the three larger petitions. The terms of the questions are found in your Honour’s order of 13 December 2013. I should tender at the outset the amended statement of agreed facts and the agreed bundle of documents.
HIS HONOUR: Yes.
MR GLEESON: Your Honour, in our outline I propose to deal with points 1 to 6, and ask Dr Bell to deal with points 7 to 9. Initially, could I focus on the key facts which bring us here today, the first being that the 1,370 ballot papers were lost by the AEC and were not available for scrutiny within the re‑count of the above line votes as directed by the Commissioner? The second fact, which follows inescapably from the first but is important, is that the 1,370 ballots were incapable of being reserved in the course of the re‑count, such that they would be available to the Court as the Court of Disputed Returns. So the process of reservation inescapably failed in respect to these ballots because they were missing.
The third key fact is the incredible narrowness of the margins. At the 50th exclusion point, a margin of 14 in favour of Mr Bow at the fresh scrutiny swung to be a margin of 12 in favour of Mr van Burgel at the re‑count. The fourth key fact we draw attention to is that between the fresh scrutiny and the re‑count looked at as a whole, there were 7,826 movements of ballot papers in various directions for various reasons indicating the nature of the changes that occur at each stage of the scrutiny. Your Honour, that is the first matter.
The second matter, just before I come to the Act, which is my primary task this morning, is to say something about the nature of the evidence which we are essentially disputing, its admissibility and relevance. It is not secondary evidence in any ordinary sense of the missing ballots. Had copies been taken, that would have been secondary evidence of the ballots. What it is, is no more or less than evidence of the opinion formed by an officer or officers at an earlier stage of the process, an opinion based on interpretations of the ballots that are now missing, an opinion based on decisions as to formality or not and an opinion based on accounting and the critical question is whether that form of evidence is admissible or relevant in the petitions. Your Honour, could I then turn to ‑ ‑ ‑
HIS HONOUR: Well, it is threefold, is it not; admissible, relevant, necessary?
MR GLEESON: Necessary, yes.
HIS HONOUR: It may be that necessity is not an unimportant question.
MR GLEESON: Yes. In one sense, although we have three questions before the Court, questions 1 and 2 are a means to an end. The critical question is question 3, and I should be clear – and I think in this point there is a similarity between our submissions and Mr Merkel’s submissions – that irrespective of section 365, although I will address it in detail, we get to the correct result under question 3 that it is certainly not necessary to receive the material, and that is because to receive the material offends the fundamental notion of election by scrutiny which underpins the Act.
The essential position of the Electoral Commission is that given that there are 1,370 that are missing, given that they could not be brought into the re‑count, given that they could not be reserved, given that the Court could not look at them under section 281, the Court is bound under the Act to place itself in a state of un‑informedness, to use a bad word, in respect to the content of those ballots. Knowing that it can know nothing about them it simply says, what is the necessity in engaging in the exercise of examining the ballots which are reserved, knowing that whatever result I reach on them it can never overwhelm my lack of knowledge about the 1,370.
Your Honour, the numbers that are sought to be raised in the reserved challenges appear to be 177 for Mr Mead, and 74 perhaps for Mr Wang. I think it is still unclear whether those numbers overlap, but even assuming they do not, that is about 250 votes that are the subject of the reservation. The Electoral Commission’s position and submission is that that inquiry serves no utility in circumstances where the Court cannot know about the content of the 1,370 missing votes.
Your Honour, I then propose on point 3 to put some submissions on the Act and in doing this to deal with some, at least, of the submissions that have been raised by other parties. The starting point is the division between polling dealt with in Part XVI and the scrutiny dealt with in Part XVIII. One proposition put, perhaps most strongly by the Liberal Party candidates, is that voting has a meaning in Part XVI which must carry over to Part XVIII. Because Part XVI is all about casting a vote, as soon as the person has lodged the piece of paper with the polling officer the vote has been cast, and therefore when one looks at concepts of prevention from voting in Part XVIII it must have the same meaning.
Our short submission would be that there is nothing surprising or unexceptional that voting takes on the meaning requisite to the context it is in. We agree in Part XVI that voting is about the act of casting the vote and depositing it in the ballot box, and once the elector has done that the elector has fulfilled the duty under section 245 and, of course, there is no duty to record a formal vote ‑ R v Carr (1870) 9 SCR (NSW) L 55. The provisions we see in Part XVI will identify what is necessary for voting, and some of those provisions which will then have a flow‑on effect at the stage of the scrutiny – if I could just identify some key ones? Section 215 will be the requirement for the voting paper to be initialled by the officer. That is a mandatory requirement, and if it is not complied with the vote will subsequently be considered void. Section 229, requirements for the identification of the voter; 231 and 232 are similar requirements which may flow through to the question of the validity of the vote.
But all that is concerned with the polling, and then when we come to the scrutiny in Part XVIII we would submit that what section 263 tells us is a fundamental proposition which underpins everything done administratively and, indeed, everything done judicially by the Court as the Court of Disputed Returns. The result of the polling shall be ascertained by scrutiny, and the short submission is that none of the provisions of the Act should be interpreted so as to permit a departure from that fundamental premise. To the extent that there are arguments put that the Court should receive the opinion evidence that I have described, it is necessarily a departure from that principle because it invites the Court not to determine the result by ascertaining ballots but rather by forming opinions about the reliability of a process that has been conducted at an earlier stage administratively and is now by definition superseded.
Within Part XVIII, could I ask your Honour first to go to section 268, dealing with informal votes? As we would read it, it has five situations in which a vote is to be informal, five and five only situations because of subsection (3) and of those situations, the first, paragraph (a), involves the conduct of officials, whereas the next four involve essentially the conduct of the elector. As part of the scrutiny, in determining whether a vote is formal or informal, the officials and later the Court, if called upon, will be examining these five criteria to determine whether the vote is properly to be counted, or whether the vote is not to be counted.
HIS HONOUR: Some, at least, of the questions indicated by 268(1) are questions for judgment rather than questions which admit of only one answer.
MR GLEESON: Yes, and even, for example, under paragraph (b), to ask whether there is no vote indicated on it or whether it does not sufficiently indicate the first preference for one candidate and an order for all other candidates will depend upon an examination of what markings are on the paper and where they are placed. Much of the battleground is always concerning paper which has too many markings, perhaps inconsistent markings in different places, and the judgment exercise is whether to identify a sufficiently clear intention to indicate a preference which is an intention not disqualified by the fact that there may be a stray mark elsewhere on the paper. Similarly, with paragraph (d), the very important requirement not to identify yourself on the paper, again, that is a matter of judgment as to whether some stray writing has sufficiently identified a voter.
Coming back then to election by scrutiny, because we submit the process is de novo at each stage, the question for the relevant officer or later the Court in respect to relevant ballots is looking at them one by one; what is my judgment on these five questions so far as raised on the facts, and as a result of that do I reject or accept the vote into the scrutiny? Making that practical in the present case, the records sought to be adduced contain an opinion that 120 out of 1,370 votes were informal and to be rejected. The records do not, of course, say why that opinion was reached in respect to those 120 votes. The votes are lost; it is impossible, both at the re‑count and now, to ascertain whether that decision was correctly reached, given that we do not know the grounds for it and we cannot see the ballot. Equally, to the extent the other 1,250 were deemed to be formal, we are in the reverse situation where not knowing the reasons for that judgment and not having the ballots, one cannot know whether some of them should have been placed in the informal category.
Equally, in respect to the 1,250, even assuming they were correctly declared to be formal, we cannot know now, because we do not have the ballots, what was on the paper and whether it did in truth indicate the candidate for which it has been counted. Just to complete that point, and it may be related, we do not know how the counting actually occurred; that is, whether the votes were placed in the correct parcels after the judgment had been made as to who the vote was meant to be for.
HIS HONOUR: But we do know that on the re‑count as to, what is it, 3,913 ballot papers, half of 7,826, different – I am trying to find an entirely neutral word – there was a different outcome in respect of 3,913 ballot papers, either as to formality or bundling into a particular parcel.
MR GLEESON: Yes.
HIS HONOUR: The premise for both the Wang petition and the Mead petition is that in respect of numbers variously described, you say upwards of perhaps 250 votes, still further examination would reveal further error?
MR GLEESON: Yes, by definition they assert substantial as yet rooted out error in the re‑count process.
HIS HONOUR: But ‑ this may or may not be a question for you – is it a necessary premise of arguments that assert that the Court can now decide who should have been declared, that the records in respect of the 1,370 lost votes are accurate: one, as to gross number; two, as to formality versus informality; three, as to bundling, parcelling?
MR GLEESON: Yes, it is a necessary premise that they are accurate within a degree of margin that would be determined once we know how many reserve votes they win on. If they win on none, they have to be accurate within a margin of – there is zero tolerance because there is only one – if you accepted them as accurate on their face, there is only one vote in the favour of Mead and Wang. If they win on any of their reserve challenges their margin gets a little larger, but the essential task is for the Court ‑ ‑ ‑
HIS HONOUR: Is that the point, or is it that the more error that is demonstrated in the re‑count, the harder it becomes to accept the accuracy of the record?
MR GLEESON: It certainly does, so as their supposed margin of safety, to use that term, increases, it is a self‑defeating exercise because they are proving in spades the degree of imperfection in the process and then one comes back to the basic ‑ ‑ ‑
HIS HONOUR: Well, no, not only imperfection, but the process is more than mechanical.
MR GLEESON: Yes.
HIS HONOUR: This is not simply a mechanical task. It is a task requiring assessment, judgment and determination.
MR GLEESON: Yes, and that is part of the paradox, that the more success they have in proving error in the reservation process, the more they undermine the perfection or the integrity of the summaries that exist, but the end result is going to be, even in the most – let us take the most extreme case. Let us assume, which seems unlikely, that the 250 challenges are mutually exclusive of each other, and let us assume they win on 250 challenges, they have proven by definition that 25 per cent of the reserve ballots were wrongly ruled upon.
They have proven massive – not necessarily error, but massive difference in opinion or judgment formed by the Court judicially looking at that which an otherwise very experienced electoral officer looked at, and so you put that on one side and then you say on the other side what is the Court to do with the summaries when it does not have the ballots and it simply cannot know – it cannot know anything of the true mechanics of reasoning by which the summary conclusions were reached. It does not know in respect to even a single ballot out of the 1,370 why it is that the officer came to a particular view about the ballot. You simply know gross numbers and you have no ballots to scrutinise to assess that, so that just undermines the fundamental difficulty and lack of utility in the process suggested.
HIS HONOUR: I take that to amount to a proposition that can be expressed interrogatively as how does the Court assess the value of the record? How does the Court form a view about – the only word I can think of is reliability, but by reliability I am seeking to encompass a number of disparate thoughts of what appears from the record made. A fresh scrutiny, was it?
MR GLEESON: Yes.
HIS HONOUR: Yes.
MR GLEESON: Well, yes, that is the problem: how does the Court form that view of reliability; and secondly, does this Act really contemplate that a court which in every other respect is about perfecting the process of election by scrutiny turns itself into a process of judgment of reliability of an administrative procedure which by definition is superseded. One can add elements to that. For instance, because the 1,370 did not enter the re‑count, the candidates’ scrutineers were not there available to do their work in respect to those 1,370. So what we are left with is the opinion formed at the earlier stage in the presence of whatever candidates’ scrutineers were there at the stage of the fresh scrutiny.
Your Honour, could I just go to one or two other provisions before I reach the provisions in the section 360s? Section 278 was the direction – was the provision authorising the direction to carry out the re‑count and it is accepted that it was a re‑count in respect of all of the above line votes, including those that had been deemed informal. I mention that only because when we go to section 279B(1) that identifies one of the two clearest contraventions of the Act and therefore deemed illegal practices because by definition the re‑count could not count the 1,370 votes. Your Honour knows the other key contravention of the Act is the failure to safely guard the ballots under section 393A(3).
Could I pause at that point just to deal with an argument raised by Mr Dropulich, and I think he is the only party who puts it, but it is that at the stage of the re‑count, notwithstanding there was a contravention of 279B, it was nevertheless open to the official and, indeed, mandatory for the official to mix and match to bring in the records from the fresh scrutiny. That argument is found in Mr Dropulich’s submissions between paragraphs 22 and 25. The premise for the argument was correct, namely, the result of the election is to be declared on the basis of all valid votes cast, but it was turned into an incorrect conclusion that where the ballots had gone missing, the electoral officer is bound to declare the result by reference to the ballots he can ascertain and count, together with the record from the earlier stage as to the earlier opinion formed.
We would submit that there is no liberty or duty in the Act to compound one illegal practice – the failure to keep safe custody of the ballots and a consequent failure to count them in the re‑count – with a further illegal practice whereby the re‑count is conducted in a manner that does not involve scrutiny of ballots. Where the re‑count has been directed in respect to a particular class of ballots, the Act does not permit or oblige the AEO to accept blindly the results of a previous stage of scrutiny in respect to those ballots, nor to engage in a process similar to what your Honour has just put to me of seeking to determine the reliability of the assessment at that earlier stage.
HIS HONOUR: I think I am right – I will no doubt later be corrected – I think every party accepts that the failure to include the 1,370 lost papers within the re‑count is an illegal practice.
MR GLEESON: Yes, it is only Mr Dropulich ‑ ‑ ‑
HIS HONOUR: I had understood Mr Dropulich to go on to make further arguments, but to accept that that was so and go on and say, “But that doesn’t matter”. But if there is an illegal practice of that kind and if later it does emerge that every party is in heated agreement about that, does not the question then arise, well, did that illegal practice – the failure to include within the re‑count – lead to consequences of a kind dealt with in what you rightly refer to as the section 360s of the Act?
MR GLEESON: Yes, all I am pausing on is that it is only Mr Dropulich who says before you get to the 360s, he says in principle the illegal practice was to be solved by a mix and match process at the stage of the AEO. He then goes on to put a qualification on that, that would only be true if someone asserted the reliability of those records and no one does in terms, so therefore do not go any further. So in a sense it is an irrelevant excursus, but I just wanted to clear away before we get to the Court’s role that it is our submission and the submission of every other party that there was an illegal practice under 379B, the re‑count miscarried for that reason and that must be the premise upon which we come to the role of the Court of Disputed Returns.
So then coming to section 281, which is the breach between the electoral officer and the Court, I want to say something more about the relationship between the re‑count which is done administratively and what the Court is doing as the Court of Disputed Returns. Mr Donaghue has taken up that question correctly and has said, “Well, you shouldn’t assimilate this exercise of judicial power with that exercise of administrative power” and he has correctly pointed to elements of discretion in the Court’s role which are not here in the role of the AEO. However, he has drawn the wrong conclusions, as I will seek to show from that starting point.
Your Honour, what we have in section 281(1) is the process of reservation of ballot papers for the decision of the AEO and we see the role of the candidate scrutineers where they may require papers to be reserved and the officer may ‑ now, that is the point at which the process completely broke down in relation to the 1,370 because not being available that act of reservation could not occur. Then dropping down to subsection (3):
In the event of the validity of the election being disputed –
as it is here on three petitions –
the Court of Disputed Returns may consider any ballot papers which were reserved for the decision of the Australian Electoral Officer, but shall not order any further re‑count . . . unless it is satisfied that the re‑count is justified.
This is the narrowing of the task of the Court which occurred in the amendment – I think it was 1911 – and instead of the Court simply reviewing each and every ballot paper which had gone through the re‑count the Court prima facie considers the ballot papers which had been reserved and goes no further unless satisfied that a particular case is made out, for example, where the reserve ballot papers disclose a systemic error which might cast greater doubt upon the entire re‑count.
Now, when the Court is considering the reserve ballot papers, in case the 949, in our submission the Court is turning its mind to the same questions as were before the Electoral Office but doing so through a judicial lens. The Court is looking at the ballot papers to determine matters such as those – if I discuss them as the section 268 formality or informality on a series of identified grounds it is forming a judgment as to voter intention as reflected on a ballot paper and then the Court either directly or through supervision is ensuring that the counting process is redone and it is an essential element of the Court doing the task under subsection (3) that there will be a re‑count involved, save only if the Court says, “I reject all challenges” in which case the result stands.
I mention that because some of the other submissions, particularly Mr Wang, say that there is no re‑count involved in their petition, they simply want an order under section 360, having regard to section 362. There is no process of re‑count involved and that is used as some sort of springboard for various of their further arguments. We would submit that although you do not see the word “re‑count” expressly in the first part of subsection (3) you do see in the second half the concept of “shall not order any further re‑count” and necessarily what is involved at the first stage of subsection (3) is a further scrutiny for the purpose of determining whether to adjust the count which has been reached at the earlier stage of the process. The process of the Court is thus answering the same questions as were answered earlier but doing so through the judicial lens.
It follows, we would submit, your Honour, that just looking at 281(3) before we get to section 360 and following the section presupposes that the ballot papers will be there before the Court and the Court will be conducting a scrutiny of them. It is the complete antithesis of this section that the Court would be asked to form opinions about the reliability of the earlier stages in the process. If the Court is to consider ballot papers reserved the Court is not to consider the reliability of opinions formed by the AEO.
Could I then turn to section 353 which we would identify as the gateway to the matter that is before the Court which is the matter involving a dispute as to the validity of an election or a term? Then section 360(1) provides the primary powers of the Court. The AEC invokes subsection (1)(vii) and Wang and Mead invoke subsections (1)(v) and (vi) and in the alternative invoke (vii).
It follows from the submission I put a moment ago that for the Court to engage in a process which might lead to one of these remedies will necessarily involve the Court grappling with whether there is to be a re‑count or not. If we are correct in our primary submission the Court will say, “In this matter there is not to be a re‑count because a re‑count would have no utility”. If Wang and Mead win on the separate questions the logic of their petition, although they do not admit it, is they are asking the Court to conduct or to supervise a re‑count, a re‑count which will have one stage to it where the Court in the exercise of judgment forms an opinion on the particular ballots and then there will be a further arithmetical counting stage of the re‑count, and I do not underestimate it in saying that because it will involve transfer values and quotas and preferences and the like.
Let us come then to the lost ballots and to section 360. Inescapably the Court is being asked to consider an exercise of one or other of the three powers I have mentioned in the absolutely certain knowledge that it is unable to conduct a scrutiny of the 1,370 votes so as to determine the questions which would otherwise arise by virtue of section 281. That inability, we would submit, of itself leads the Court inescapably to a new election in any case where the lost votes exceed in number the margin as it currently stands or as it is sought to be adjusted.
The result, put most simply, is that on the AEC’s petition for the election to be declared void the Court concludes it cannot know anything relevant about the 1,370 votes, it cannot know in what division they were formal or informal, it cannot know in what direction they lay, to the extent they were formal and it cannot know whether the counting has been done correctly and for that reason the margin being as it is in this case the Court simply proceeds to make the order to declare the election void.
HIS HONOUR: You say “cannot know” ‑ do you mean by that cannot know in the sense that cannot safely form any conclusion about the issue?
MR GLEESON: Yes, cannot safely form any conclusion about the issue consistent with its primary mandate to conduct the last stage of an election by scrutiny through the full application of the judicial power.
HIS HONOUR: Now, the formulation cannot safely form any conclusion is one which invites attention, I suspect, to the epithet. All of these propositions hinge about what weight you are giving to a word like “safely”. Do you make any submission about how that is better understood, better expressed than some generality of the kind I put to you?
MR GLEESON: Well, only that cannot safely do it in the sense that to do so would ask the Court to so fundamentally depart from its role which is complete election by scrutiny and to engage instead in an assessment of the reliability of work done administratively at an earlier stage when the Court has neither the full details of the work nor the ballots against which the quality of the work can be assessed. So it is really those three aspects that first you are moving into an assessment of reliability of administrative work done by another, secondly, you do not have, as it were, the equivalent of a set of reasons by which the earlier opinions were formed, you just have the conclusion and, thirdly, you do not have the primary evidence, the ballots, or any true secondary evidence as in copies of the ballots. So putting those three things together, that is why you cannot safely do the task, at least in circumstances where the margin is as it is in the present case.
Conversely, if the margin was 2,000 then the Court would be moving in a different direction. Equally, it would not need to inspect the 1,370 ballots but because the margin exceeded the 1,370 it would quickly move to a different result on the petitions. I was just then going to indicate that that is the result, in summary, on the AEC’s petition. On the Wang and Mead petition, who seek relief under section 360(1)(v) and (vi) they need both of those to get where they want to go.
The relief, as I have said, necessarily involves inviting the Court to order and then conduct a re‑count, it is a necessary step in their petition to have the Court do that and the Court would not order the re‑count where the margin is as it is in the present case.
HIS HONOUR: Is it is a necessary step in each petition that they demonstrate that the illegal practices associated with loss of the papers affected or is likely to have affected the result?
MR GLEESON: Yes.
HIS HONOUR: It seemed to me that they had to on account of 362(3).
MR GLEESON: Yes, because they invoked the general power under section 360(1) but the particular ground they raise is section 360(3) of an illegal practice ‑ that is their gateway – and once they do that they are caught by the fetter of section 362(3) and so they must ‑ ‑ ‑
HIS HONOUR: Because they seek a declaration that persons returned as elected were “not duly elected”.
MR GLEESON: Not duly elected and therefore they must satisfy the Court, firstly, that the result of the election was likely to be affected and, secondly, that it is the just result, and for that reason – one of Mr Donaghue’s submissions – that he can escape section 365 because he is not focusing on likely to be affected. It does not work. He squarely has to grapple with likely to be affected. So on that part of their case they say, illegal practices, failure to safeguard the ballots, failure to count them in the re‑count, you should be satisfied – the Court ‑ that the election was likely to be affected then, particulars, how was it likely to be affected?
They say, well, firstly, we want to try and increase the margin up to about 250 through arguments about reserve votes but, secondly, we want the Court in some way to conclude that notwithstanding the loss of the 1,370 that could not have outweighed whatever progress we make in our attack upon the reserved ballots and it is at that point that they need to confront the central questions that we are addressing. So your Honour, for those reasons it is our submission that to use the crude term “the mix and match process” is not one the Court can safely engage in under section 360 or section 362 or section 365. It is a process which was not open at the earlier stage and it is a process not open to the Court.
I think Mr Donaghue has a submission that the reason the Court can do it is that it somehow comes in under the final and less clause of section 362(3) and that because that is evoking some notion of discretion and satisfaction and justice what a court does is say, “Well, I’m in a bit of a pickle with the 1,370 prima facie because I cannot do my normal job of scrutiny, but because I’ve got these extra powers I can start to embark upon some process of trying to ascertain the reliability of the earlier record and to see how that might enable me to reach my ultimate conclusion”. We would submit that ‑ ‑ ‑
HIS HONOUR: I had tended to see the division rather more starkly, I think, Mr Solicitor. Again, this is likely to be substantially corrected in the course of argument, but I had seen a division between Mr Donaghue’s interests being for those who were declared to be elected – that is, for successful candidates – compared with the interests of the Wang and Mead petitioners who are seeking to have people declared as elected who were unsuccessful, according to the declaration, and that Mr Donaghue’s position is not directly affected by the position that both Wang and Mead have to adopt, where they have to, to get anywhere, it seems to me, say illegal practices affected the result.
MR GLEESON: Yes.
HIS HONOUR: They cannot get any relief unless they satisfy that, whereas Mr Donaghue, appearing for candidates who were returned can simply say, “None of this matters to me. You can’t prove any of it. Leave the return as it was”. Is that too crude a view?
MR GLEESON: He certainly would like to leave the return as it was by any available means that anyone can think of, but I do not think he has taken up the challenge ‑ ‑ ‑
HIS HONOUR: That is what he is paid to achieve, I thought, Mr Solicitor.
MR GLEESON: He is entitled to seek to achieve his retainer, but he has not taken up the challenge that was raised on the direction hearing as to whether he was running some argument that the first four candidates are immune from this process and the Court could somehow order, or not order, something in respect of five or six.
HIS HONOUR: I did not understand any party to say that there could be some outcome where there would be a new election for the last two positions. I will need to be firmly disabused of that view if somebody does say that that is a possibility. I have not understood anyone to suggest that there could be some new election for the last two. It would be a radically different election from the kind that the Act prescribes.
MR GLEESON: He has suggested at about paragraph 54 or 55 of his submissions, perhaps cheekily, that what the Court could do is just accept the record of the fresh scrutiny 100 per cent, just blindly say it is there, it is accurate. If it is there it is a one vote margin in favour of Wang and Mead, therefore, we can all go home early and we just swap candidates.
To the extent he is putting that proposition, what I was trying to address was he seems to say, “My footing for that proposition is that that is something I want the Court to do under the discretion”, as he calls it, “at the end of section 362(3)”. All I was seeking to address is that that does not provide any foundation and it does not escape any of the problems we are otherwise addressing because it requires him to say that a record of an earlier step in the process, which has now been overtaken by definition, is to be adjudged by the Court 100 per cent accurate when the Court has neither the ballots nor has the reasons by which the record took the form it did at that earlier stage of the process.
If he is wrong in that argument then perhaps his interests fall back closer to Mead and Wang and say, “We would like to let them have their argument about reservation”, and at the end of that the Court might be able to come to some position of comfort about the 1,370 and then overall the Court might be able to simply swap candidates and not have to go through the burden of a new election. But to the extent he is running that argument he then, in law at least, faces the same difficulties they do of how can the Court safely embark upon that process of inquiry about the 1,370 ballots.
Your Honour, that was the matter I wished to deal with at paragraphs 3 and 4. I then want to say something about the earlier authorities. Can I preface it by saying that ‑ ‑ ‑
HIS HONOUR: With a view to what ultimate proposition in this respect, Mr Solicitor?
MR GLEESON: The ultimate proposition being that, although we do not need section 365 to get to the result I have just argued for, it is an independent basis to get there, and that the earlier authorities contain a meaning of “prevented from voting” which is broad enough to encompass the present circumstance and is the meaning which the Parliament is to be taken to have picked up when it inserted section 365.
Before I descend into the morass, which I will only do briefly, because I did it this morning for seven hours and I am feeling very weary already, as well as jetlagged, the proposition is that the concept of prevented from voting was given its core meaning in Woodward v Sarsons as a concept which included preventing from voting either in fact or with effect – prevented from voting in fact if you turn up and you are refused a ballot paper; prevented from voting with effect if anything occurs at any stage of the process whereby your vote is rendered void by reason of an official error.
HIS HONOUR: Or is it that by reason of official error your ballot paper is not considered in the determinative scrutiny?
MR GLEESON: It is ultimately the latter. You have got the first case of prevented in fact, you never got a ballot paper, and you have got the second case where, by reason of error, in the determinative scrutiny your ballot was not counted and could not be counted.
HIS HONOUR: Or was not considered.
MR GLEESON: Was not considered.
HIS HONOUR: The point I am seeking to have you grapple with is that consideration in the determinative scrutiny says nothing about whether the vote was then marked informal or not. It says nothing about how it was tallied or parcelled. But consideration in the determinative scrutiny may be different, I think, from a rather narrower proposition that you seemed to be putting ‑ ‑ ‑
MR GLEESON: Your Honour is correct.
HIS HONOUR: Or perhaps it is broader ‑ ‑ ‑
MR GLEESON: Your Honour is correct, and that is what we do intend to put, and to the extent Mr Donaghue and others have read us as saying something different to that, we are not. The proposition of prevented from voting is, as your Honour has just put it, so to test it, in a case where your vote has been rejected as informal at an earlier stage but your vote remains available for consideration at the relevant scrutiny and the officer or the court looks at it and says, “No, that vote is a formal vote”, you are not prevented from voting because your vote is now given its desserts.
Consistent with the de novo nature of each stage of the process it must be the case that if your vote is available for consideration and it then is dealt with at that stage, either ‑ ‑ ‑
HIS HONOUR: Available for consideration in the determinative scrutiny ‑ ‑ ‑
MR GLEESON: And then in the determinative scrutiny ‑ ‑ ‑
HIS HONOUR: ‑ ‑ ‑ that happens at the end of what is a successive, or may be – not always is – a successive process.
MR GLEESON: Yes. We certainly embrace in the determinative scrutiny, because one of the contrary arguments put was, “Well, this creates an oddity because your vote is a vote which was a cast vote at one stage but you could become prevented from voting at another stage”. There is no oddity in it at all. You focus on it at the time at which the issue matters.
So for that reason if you take lost ballots, on our view, if the ballot is lost at any point prior to the determinative stage you have been prevented from voting. In the present case they were lost before re‑count. Let us assume they had been reserved, the 1,370 – or some of them – and then lost before we came to the Court, you would be prevented from voting within 365 because at the relevant time when it is adjudged, when the Court is there to do the final, as it were, scrutiny, your ballot is lost and you are prevented from voting.
HIS HONOUR: I am not sure about that. What I am referring to as the “determinative scrutiny” in the events which have happened here is available for consideration – that is, available for scrutiny – at the re‑count, here a partial re‑count of about 96 per cent of the votes that were lodged.
MR GLEESON: That is sufficient for the facts of this case, so let me leave the other issue.
HIS HONOUR: Yes. It would entail, would it not, that prevented from voting so understood would include, but not be limited to, the case of the elector who attends at the polling place, asks for a ballot paper and is wrongly refused by official error to be issued with a ballot paper.
MR GLEESON: Yes. In the Woodward conception of prevented from voting it is broad enough to include that variety of situations. Indeed, in Woodward itself, when the principle was applied, the court said, “Well, first we will see whether you are prevented from voting in fact – answer no; you were given ballots and you cast them”. They then went on to say, “Well, you were prevented from voting with effect” and at that point looked at whether the rulings on formality and informality were correct. That is the starting point of the conception. The next step ‑ ‑ ‑
HIS HONOUR: Well, no. Is the relevant starting point of the conception prevented from voting in fact section 7 of the Constitution, “directly chosen by the people”?
MR GLEESON: Yes.
HIS HONOUR: Is it not important to read the notion of prevented from voting in the light given by section 7 and direct choice?
MR GLEESON: Yes.
HIS HONOUR: And whether the mechanisms of the Act most generally give effect to the notion of direct choice if prevented from voting is read – it sounds pejorative; it is not intended pejoratively – in the limited fashion argued by some parties or in the larger fashion which you urge?
MR GLEESON: Yes. Certainly, what section 7 has taken up explicitly, and for constitutional purposes, is the notion of real electing, which Woodward was expressing in a common law sense. One of the insights of Woodward was to say, “If we come back to what is most at heart here it is: have there been official errors of such a character that they have deprived this of the character of real electing?”
Your Honour, could I just mention a couple of passages on this topic and then try and show the bridge through to section 365? In Woodward the purple passage commences at page 743. In the last paragraph there are two limbs. The first is where there was no real electing at all – that is the one I am focusing upon – and the second limb is the election was not really conducted under the subsisting election laws. Then the court goes on to explain what it meant by there being no real electing at all and says this:
This would certainly be so, if a majority of the electors were proved to have been prevented from recording their votes effectively according to their own preference –
So the concept of effect is coming and then the examples are given and then at the foot of the page and just over the page the examples include the:
fraudulent counting of votes or false declaration of numbers . . . or by other such acts or mishaps.
It is perfectly clear that those concepts of fraudulent counting and false declaration apply after the person has cast the vote.
HIS HONOUR: They presuppose the ballot papers being lodged.
MR GLEESON: Yes, and so that is the breadth of the concept. Then on page 745 in the second paragraph, when the court turns to the facts, they frame the question have the majority been “prevented from recording their votes with effect”, the very language Justice Isaacs later picks up.
HIS HONOUR: Sorry, we are on 745. Is that ‑ ‑ ‑
MR GLEESON: Page 745 at about point 7. Now, there is no evidence, it seems to us, that any elector was prevented from recording his vote or induced not to record it by what occurred. All who went to vote did vote. A little further down:
The result is, that all the electors who desired to vote did vote.
So there was no prevention in fact. Then the court over the page went on to consider whether there was a prevention of voting with effect, and that is at 746 and that is what led to the subsequent analysis in the case. So, that is the starting point of the broader concept of prevention from voting, and then when the cases first emerged before the court following Chanter v Blackwood and the like, the concept is fairly readily picked up by the Court. So in Chanter v Blackwood, at page 58 at about point 6:
I take it that the law is correctly laid down in this passage in Woodward v Sarsons –
Over the page Justice Barton concurs. I am sorry, the generality of the statement was affirmed by Chief Justice Griffith at page 59 in the last paragraph of his judgment and although Justice O’Connor was in dissent on other matters, on this point he was in agreement – it is page 75. Then in the second stage of Chanter when the matter was back before the Chief Justice, Woodward was applied. The argument at the foot of 127 by Sir John Quick was that he sought a:
private scrutiny for the purpose of determining for whom [the votes] were cast –
and the Chief Justice rejected that on page 128. On 129 at about point 6 he came back and identified Woodward as the key principle and applied Woodward, and the application of it on the facts is found at page 131. He used this very language of prevention. So at the foot of page 130 he said:
In these circumstances can I say the majority of the electors may not have been prevented from exercising their free choice?
The choice guaranteed by section 7. He says a little further down:
I cannot see that any other result can follow when a number of persons, sufficient to change the majority into a minority, if they all voted against the candidate having the majority, have wrongly been allowed to vote. I cannot enquire how they actually voted.
Now, of course, a number of different ideas are melding here. One is prevention from voting, one is the onus and one is receiving evidence of how people intended to vote, and all those ideas are those that ultimately come back in section 365 some little time later. So, apart from that, just to pursue this theme, your Honour, I will pass over chronologically Blundell v Vardon, although it is important for other purposes and perhaps we will come back to it, but Bridge v Bowen becomes the key link because Justice Isaacs at page 616 at point 5 says that Woodward:
is of immense importance to understand it properly, because its doctrines apply to all classes of elections all over Australia.
Then he discusses the two limbs of Woodward. He quotes on 617 the particular grounds that I have been to, “fraudulent counting” and “false official declarations” that must apply after the vote has been cast. Then a little further down at about point 4 he summarises it by saying this:
and next to such an official departure from the legal requirements for the conduct of an election as to deprive the proceedings, as an entirety, of the legal character of an election.
Now, although that is a rather high‑level expression, if one comes back to the underpinnings of section 7 and applies them in the present circumstances, we would be submitting that there was here such an official departure from the legal requirements in the sense of the lost ballots preventing the re‑count occurring in accordance with law and preventing the reservation process occurring in accordance with law that this was not an election which had the legal character required by the constitution of the Act.
Your Honour, the other aspect is on 618 in the first full paragraph when Justice Isaacs analyses Bridge v Bowen, he breaks it down into the two limbs, firstly, the limb of actual voting and then the limb of prevented from voting “with effect” by reason of official errors. Then he speaks of this as being a prevention of the votes. So we would submit that here we have the common law conception of Woodward transported into our constitutional and statutory framework, prevention from voting clearly having the broader meaning, and when the Parliament in 1922 decided to reverse the decision in Kean and decided to use this language of prevention from voting, this is the very matter that the Parliament picked up.
Your Honour then knows that the final step before the amendment was Kean v Kerby itself. In Justice Isaacs’ judgment, particularly at page 458, he understood the then statutory language in Australia to be different to the UK language which meant that the petitioner had to prove that error did affect the result of the election rather than may have affected and that is what led, he thought, inescapably to the notion that the Court could receive evidence of how a person intended to vote.
At the top of 459, his Honour could find no prohibition in the Act to prevent the receipt of such evidence. Your Honour, we referred in our written submissions at the foot of 459 to the last two sentences which we submit are correct:
The ballot, being a means of protecting the franchise, must not be made an instrument to defeat it. When a vote is recorded in writing, no doubt the writing itself is the proper evidence of the way the way the elector intended to vote. When it is not recorded, the only means of establishing that intention is the evidence of the elector himself.
So in the present case, the proper evidence – the votes being recorded in writing are the ballots and they are what has been lost. So, your Honour, the conclusion of that submission is that the 1922 change was intended to pick up the concept in the broader meaning of Woodward v Sarsons.
Your Honour, I said I would pass over, but only briefly, Blundell v Vardon. That is probably put forward as the strongest case or the only case in support of the proposition that the Court can or should somehow mix and match. It has, of course, a number of distinguishing features. The first is it is prior to section 365 and at least one of the parties has accepted it is no longer authority for that reason. The second is that the particular context which your Honour will see from page 1464, just after the headnote, the particular context was – this is in about point 7 – Mr Blundell filed a petition. Firstly, he sought a re‑count; secondly, a declaration that Vardon was not duly elected; thirdly, that Crosby or the petitioner – that was ambitious – was duly elected, and in the alternative the election be declared void. If you map that against the Wang and Mead petitions, (b), (c) and (d) are effectively the Wang and Mead petitions. What they leave out is (a), the re‑count, but the re‑count is a necessary step in the relief they seek under (b), (c) or (d).
Now, in the question of whether there should be a re‑count which was dealt with first, at the bottom of 1469 Justice Barton was of the view that prima facie the case for a re‑count was made out. The question was, was that case to be defeated by reason of the lost ballots? He observed on 1470 that there was no precedent for the matter, and he came to:
the conclusion that the recount ought to be granted, notwithstanding the destruction of the Angas papers.
The reasoning seemed to be, well, you have prima facie made out a case for a re‑count, you should not be deprived of that prima facie success by the lost ballots and therefore, provisionally, as it were, in order to allow your re‑count case to proceed, the Angas votes will be “accepted as they stand on the return”.
One might note that is very different to either Mr Donaghue’s claim that the return can be accepted with 100 per cent accuracy in order to defeat all the petitions before the Court, and it is very different to the Wang and Mead petition which is the return can somehow be accepted as accurate or substantially accurate in order to have their candidates replace the current candidates.
His Honour determined to grant the re‑count at about point 7 and the re‑count then proceeded. Then if I could just conclude with the end of the case, at 1476 – this is at about point 7, the paragraph commencing “Upon
the addition of the votes allowed – so that after the re‑count was mostly complete under court supervision, the provisional result was that Vardon was two votes ahead of Crosby and Mr Vaughan moved for the election to be declared void.
So by this stage there is no claim extant as per Mead/Wang or even the Liberal Party candidate submissions. The case had reduced to should this election be declared void. Then there are some further arguments put: (a), (b) and (c). Could I just draw attention to (c) which is at the bottom of page 1477? As I read it, that is effectively the type of argument that the AEC is putting today, that the:
inspection of the valid votes has resulted in so close a finish, the destruction of the Angas papers renders it necessary that there should be a new election, as it cannot be ascertained by judicial scrutiny whether the large number of informal votes there were rightly or wrongly rejected.
Now, it is true I think that Justice Barton in the end does not grant the new election on ground (c). In our submission, he could have and should have and it would have been the end of the matter. What he in fact did was to go through some further analysis and when one gets to the foot of 1480 he was satisfied that the new election was required to be granted. So our position on Blundell, or our submission, is it is overtaken by 365. It is distinguishable, and the simplest basis upon which it could and should have been decided is the one I have identified.
Your Honour, at that point, if it is convenient to your Honour, could Dr Bell deal with the concluding part of our submission which is dealt with in paragraph 729 of the Act?
HIS HONOUR: Yes. Yes, Mr Bell.
MR BELL: May it please the Court. My focus, as the Solicitor has said, is on case law such as it is, post the introduction of the proviso, the 365 of the 1922 amendments. But as will be apparent the significance of the reference to Woodward v Sarsons, as picked up in Chanter and Bridge v Bowen - and Justices Gavan Duffy and Rich expressly agreed with Justice Isaacs’ - Bridge v Bowen – extensive adoption of Woodward v Sarsons.
The significance of all of that is that at the stage of the amendments there was accepted by this Court understanding of, in the very context, the particular phrase “prevented from voting”. So the submission we make engages with the well‑known principle of statutory interpretation described by Sir Anthony Mason in American Dairy Queen v Blue Rio 147 CLR 677 at 682 as a general rule, namely, that the courts will construe a statute in conformity with the common law. It is not a stumbling principle of statutory interpretation but that is the obvious principle which we engage.
Now, subsequent to the introduction of the proviso to what is now section 365, very little has been said in this Court about the operation or the meaning of the proviso. It has been, as your Honour will have seen from various submissions, the subject of some consideration and other courts have disputed the terms in respect of State elections, but can I just draw your Honour’s attention, first, to what has been said in this Court about section 365 and one could best describe them as morsels – very brief.
First, there is an observation by her Honour Justice Gaudron in Webster v Deahm (1993) 116 ALR 223. Her Honour relevantly at 225, about line 12, began a paragraph:
Putting to one side the case in which a person is prevented from voting and which is the subject of special provision –
So her Honour characterises section 365 and particularly the proviso as a special provision and then goes on at lines 24 and 25 again to reserve the position of a person who is prevented from voting in that case. So the only morsel or titbit that can be extracted there is her Honour’s description of it as a special provision. But what her Honour then says, about line 16:
it clearly appears from ss 362 and 365 –
et cetera, and her Honour focuses on the fact that both of those sections are concerned with the effect or the likely effect on the outcome of the vote. So her Honour sees those two sections as having a commonality of concern.
Of course, one of the submissions put against us by the petitioners Wang and Mead is that because they engage 362 and assert that they are not seeking to avoid the election pursuant to 365, one can, in a sense, outflank 365 entirely. But 362 and 365 travel together insofar as they have this focus on the common question of the effect on the election and it would be a very odd process of statutory construction where your Honour has that commonality not to read the statute as a whole and to see the two as interrelated.
The second brief but important observation, again by her Honour Justice Gaudron is in Sue v Hill 199 CLR 462 at 520, paragraph 148. Her Honour says:
Notwithstanding the terms of s 360(2) of the Act, the power to invalidate an election is not at large. As has been seen, it is confined by s 362 of the Act. It is also confined by ss 365 -
So insofar as 365 contains a prohibition on the acceptance of evidence of intention of voting, we would read her Honour as indicating that 365 is a prohibition or a source of limitation on the very broad powers in section 360. Section 360(2) is what her Honour specifically refers to but that is a general description - statement in respect of all of the powers listed in 360(1). So there is not much there but they are the two indications in this Court as to the nature and character of section 365. But beyond this Court ‑ ‑ ‑
HIS HONOUR: Well, before we come to “beyond this Court’, is there anything in this Court other than the pre‑1922 cases which considers directly the meaning of “prevented from voting”?
MR BELL: No.
HIS HONOUR: Well, what am I to make of subsequent decisions in State Courts of Disputed Returns, at least some of which I think, so far as the reasons go, may not have had drawn to attention the state of the decisions in this Court?
MR BELL: One answer which may be the correct answer given the judicial hierarchy is none, other than to the extent that those decisions contain some reasoning or analysis which your Honour may have found persuasive or helpful. But what we can say, taking up your Honour’s ‑ ‑ ‑
HIS HONOUR: But am I, as things presently stand, am I bound by a decision of the Full Court of this Court to hold that “prevented from voting” has the Woodward v Sarsons meaning?
MR BELL: We would say yes, your Honour.
HIS HONOUR: If that is right, I will no doubt have to hear extended argument from other parties about whether it is right. What do I get out of the Courts of Disputed Returns decisions in the States?
MR BELL: Nothing more than an articulation of various interpretations that your Honour may find useful. One does not have to, of course, go to those cases to consider or grapple with the arguments.
HIS HONOUR: But it would be bold, I suspect, for me sitting as a single judge to ignore what has been decided by a Full Court of the Court.
MR BELL: Absolutely, and, your Honour, importantly in that context, the decision of Justice Sugerman, which is the case which we strongly rely on, unlike in particular the strongest case going the other way which is Justice Nagle’s decision in Cleary v Freeman, the decision of Justice Sugerman references, draws on Woodward v Sarsons at the very pages the Solicitor has taken you to. In other words, it is consistent with Woodward v Sarsons as adopted and embraced by this Court in Bridge vBowen. So, your Honour, a very short response to all of this wilderness – this whole wilderness of first instance decisions, is the one your Honour has given.
HIS HONOUR: I have not given an answer. I have asked a lot of questions.
MR BELL: Yes, quite. But that would be our response. But we submit that to the extent they are relevant or useful to take into account the line of authority, the better of the conflicting lines of authority is that we have identified flowing from Justice Sugerman in Campbell v Easter, strongly adopted and embraced by Justice Starke in Varty v Ives and also by Justice Slattery in McBride v Graham.
HIS HONOUR: There is this further point. The federal Act surely has to be construed against the constitutional background of section 7.
MR BELL: Absolutely.
HIS HONOUR: Whether that is something that is apposite to the decisions of the State court – do not know.
MR BELL: Quite. We embrace that observation as well. We would also point out, as I think we have put in our written submissions in reply, that correctly – and correctly consistent with Bridge v Bowen and Chanter v Blackwood – the Full Court of the Supreme Court of South Australia in its decision in a case called Featherston (2002) 83 SASR 302, particularly at paragraph 147 ‑ ‑ ‑
HIS HONOUR: Page?
MR BELL: Pages 338 to 339. It is the enumerated principles 3 and 4. They are picking up Woodward v Sarsons as in turn picked up by Bridgev Bowen as continuing authoritatively to state the law in Australia in relation to “prevented from voting”, in other words, entirely in conformity with what your Honour has said. There is no occasion strictly to go to first instance State decisions when one has binding High Court authority on the meaning of “prevented from voting” which existed immediately prior to the passage of the 1922 amendments.
HIS HONOUR: If the argument is, I think, one which may engage a number of intermediate steps first, I think you have to say if this argument were to be accepted, one, that the Court had decided what “prevented from voting” means; two, you then have to take the further step of saying that the 22 amendments give effect to that understanding of “prevented from voting”; three, I think some of the opposite parties would say that at least the introduction of the definition of “illegal practice” – perhaps other changes to the Act – occasion the need to reconsider what is meant by “prevented from voting”. So I think that the argument may be unduly compressed as saying that, well, the Full Court has spoken, that is an end of the game.
MR BELL: Yes.
HIS HONOUR: But ‑ ‑ ‑
MR BELL: What one does know from Chanter v Blackwood and Bridge v Bowen and the passages the Solicitor has taken your Honour to is that the extensive passage from Woodward v Sarsons was adopted without qualification as accurate, articulating the common law of elections and said to apply in Australia. That was at a time, of course, particularly Bridge vBowen, the Commonwealth Electoral Act was present. It was not said to have been affected in any way by the passage of the Commonwealth Electoral Act and the key passages we have referred to appear to have been adopted without qualification as the seminal common law decision on what was described as “real electing” and, as the Solicitor has observed, there may be some resonance of what Lord Coleridge described as “real electing” in section 7 of our Constitution - are concerned with substance, are concerned to ensure that franchise is honoured, that people effectively participate in democracy, all of which ‑ ‑ ‑
HIS HONOUR: It is not, I think, connected. I do not think the section 7 point depends upon compulsory voting. After all compulsory voting comes in after the 1922 amendments, does it not? Judd v McKeon was 1925, 1927 or something like that, I think. I think I am right.
MR BELL: Yes.
HIS HONOUR: Again, I will stand corrected by some party I am sure in thinking that compulsory voting is a later event. But direct choice by the people, whether the people are compelled to vote or the people are free to vote according to the terms of the franchise.
MR BELL: …..standing corrected to the extent of compulsory voting. For those who wish to participate but may not have been bound their direct participation is obviously frustrated, compromised. They are prevented from voting if their votes are not able to be counted in the election that matters.
HIS HONOUR: Well, prevented by official error.
MR BELL: By official error.
HIS HONOUR: It is the officials who have caused the departure.
MR BELL: Yes. So, your Honour, that was partially by way of response to - accepting that there are propositions implicit in what I have said about the doctrine of precedent, but we see nothing in Bridge v Bowen or Chanter v Blackwood before it which suggests that the central statement in – which was recognised as the central decision was other than fully adopted by this Court.
Now, one of the vices of what is put against us is to, in a sense, reason back from what is said to be the purpose of the prohibition, namely, the prohibition on adducing evidence of intention, namely, a concern that the identity of voter not be disclosed, but one does not find that loss in the language of the prohibition. One has an initial inquiry – was the relevant elector prevented from voting? Then the prohibition in the proviso is very clear ‑ any evidence of their intention is not to be admitted.
One does not go on to consider – or one does not go on to read into that some qualification if, or only if, its admission would disclose the identity of the voter. It is a clear and broad prohibition which applies once it is engaged by establishing as a fact that an elector or a group of electors have been prevented from voting. That is how Sir Bernard Sugerman approached it, having satisfied himself that the electors in Campbell v Easter were prevented from voting, there was not to be adduced the ballots that had been rejected by official error.
HIS HONOUR: Does the argument focusing upon secrecy of the ballot have to proceed from a premise that the only purpose of the proviso is protection of secrecy of the ballot?
MR BELL: Yes, there is ‑ ‑ ‑
HIS HONOUR: That is, if the proviso has purposes which may include preservation of secrecy but extend beyond what consequence follows, if any, for the reading that is to be given to the proviso?
MR BELL: Well, for our friends’ arguments to have any hope of succeeding, as I say, they start at the wrong end with purpose rather than text, but for them to have any hope of succeeding they have to demonstrate that that was the sole purpose of the amendments, the concern about preservation. But one can illustrate the fallacy of our friends’ arguments about “prevented from voting” and the application of the proviso in this way: assume a situation where you had the loss of all of the ballots from a particular division. Everybody had voted in the sense of actually casting a vote and the electors in that division were known but their votes were lost after casting the ballots but before counting.
Now, all of the respondents other than Senator Ludlam would say those people are not prevented from voting. It would follow from that submission that the prohibition is not engaged and therefore all would be free to give evidence of their intention of voting. That illustrates the fallacy, (a) in our learned friends’ submissions about the narrowness of the meaning of “prevented from voting”, but it really also illustrates this, that the Act was designed to achieve far more than a concern to preserve the confidentiality of the ballot process. The Act was designed – the amendment was designed to bring Australian law into line with English law in relation to questions of onus and namely did one have to establish with exactitude whether the election was actually affected by the official error.
Prior to 1922 – and this was a point of difference between Justice Isaacs and those who agreed with him in Bridge v Bowen and the minority, but the burden of the amendments was to relax or had to be established in terms of the effect on an election and in that context the Court was saying – the Parliament was saying, “And there is not to be adduced into evidence any evidence of elector intention”. That is consistent with the relaxation of the burden and the fact that the purpose of the amendments was rather broader than simply what is identified by our learned friends, namely, the preservation of secrecy. The exercise in assessing the impact ‑ ‑ ‑
HIS HONOUR: Well, just pausing there, if that were right, the Court would be determining the effect on the outcome of the election – likely effect on outcome of the election by reference to numbers of votes, on one view either not deposited in the box, on another view not considered a determinate of scrutiny, regardless of how the voter would have or did cast the vote. That is, official error is singled out for special treatment and consideration by reference to the bare fact of numbers. Has the official error led to such a number of votes being excluded in the sense of voters prevented from voting as is likely to affect?
MR BELL: It is a broader inquiry. It does not descend to the particularity that Justice Isaacs thought was necessary in Kean v Kerby because of the requirement for actual proof of the effect on the election. The amendments say no, it is a less exact standard and it admits of an inquiry which is not as particular, looks at, as your Honour says, the numbers, and that is entirely consistent with the views which have been taken by Chief Justice Griffith and Justice Barton in Chanter v Blackwood. If one has got numbers of such an extent that the Court reaches the view that one cannot safely accept the result of the tainted election, then consequences flow, the avoiding ‑ ‑ ‑
HIS HONOUR: Because the process has miscarried?
MR BELL: That is right.
HIS HONOUR: Process is the focus, not outcome, I suspect. Now, I do not know whether that is right but that seems to be the way in which this aspect of your argument plays out in its consequences is it not?
MR BELL: Yes, and the bringing of Australian statutory law into line with the English approach which was one of the purposes, one of the express purposes of the 1922 amendments, in our submission, bears that out; no longer the focus on exact proof and a clear direction not to admit any evidence of intention, of individual voter intention; no longer relevant. One can take a broader view by reference to, as your Honour says, the numbers to make an assessment as to the safety or otherwise, the integrity of the process, the safety or reliability of the result. Your Honour, what I was going to do but perhaps ‑ ‑ ‑
HIS HONOUR: No, you pursue whatever course you think you need to pursue as there are a few parties following you, Mr Bell.
MR BELL: Yes, I am conscious of that. Your Honour, the short submission in relation to the decisions from other courts is this. One has Sir Bernard Sugerman in Campbell v Easter. Your Honour has apprised that passage and the key point I have made is that he was cognisant of Woodward v Sarsons and expressly referred to Woodward v Sarsons. One sees that, your Honour, if I can take your Honour to the text of that judgment at page 4 of the printed text, the pamphlet, the key paragraph is the paragraph beginning “Prevention from ‘voting’” on page 4, the third paragraph.
At the end of the paragraph your Honour will see he says, “As to these matters, see the cases referred to below”, and we take that to be a reference to, to pick up expressly Woodward v Sarsons which is referred to both in the next paragraph and indeed at the end of the following paragraph, so the paragraph beginning, “I concur”, and in particular not only has his Honour referred to Woodward v Sarsons, but especially at pages 744 and 745, they being the pages where there is the express articulation of the concept.
It is said against us that the decision of Justice Hardie in Dunbier v Mallam [1971] 2 NSWLR 169 supports the narrower view of “prevented from voting”. Your Honour, relevantly in that case there were ballot papers which had been completed but upon which the presiding officer had initialled the front instead of the back of the ballot papers and the case relevantly at page 174 and 175 of the report was concerned with those ballot papers. In other words, the electors in that case had cast their votes and his Honour was considering the application of the equivalent proviso – this was contained in 167 of the NSW Act, the equivalent of 365 – on the necessary premise that those people who had completed their ballots had been prevented from voting.
The point of departure from Justice Sugerman was not as to whether those people had been prevented from voting, but whether or not, having regard to the actual ballot papers cast but rejected, whether that was evidence of intention to vote as opposed to actual voting. That is a semantic difference which we say is not justified and was subsequently rejected by Justice Starke in Varty v Ives, but the critical point for the analysis of the meaning of “prevented from voting” is that Dunbier v Mallam is, in fact, consistent with Justice Sugerman that the people who had completed their ballots had not been prevented from voting.
The next one of these cases which is referred to and relied on by our opponents is the decision of Justice Nagle in Cleary v Freeman, a 1974 decision. His Honour seems, with respect, mistakenly to have taken the view that the point of difference between Justice Hardie in Dunbier v Mallam and Justice Sugerman was as to the meaning of “prevented from voting”. On the pamphlet at page 11 you will see his Honour refers to there being two interpretations possible and ‑ ‑ ‑
HIS HONOUR: Now, we may be working off different versions. I am working off a typescript slip copy. Is that what I should be working off?
MR BELL: Now your Honour has raised this – the relevant passage, your Honour, is in the ‑ ‑ ‑
HIS HONOUR: Am I looking at Freeman v Cleary, delivered Thursday, 31 October 1974?
MR BELL: Yes.
HIS HONOUR: Usual explanation, Mr Bell; operator error. Yes, go on.
MR BELL: Your Honour, his Honour at page 5 of the pamphlet refers to there being two decisions of the Courts of Disputed Returns running counter to the other, and identifies Campbell v Easter and Dunbier v Mallam. Turning over to page 11, his Honour refers to the interpretation of Sir Bernard Sugerman as to “prevented from voting”, and then he said:
there is the other interpretation . . . taken to mean “prevented from recording a vote at all” –
He says on page 12, about point 7:
Were it necessary for me to come to a concluded view about the interpretation of the proviso I would adopt the interpretation of the section which found favour with Hardie, J. and would interpret the words “prevented from voting in any election” as referring only to an elector who is prevented in any way from exercising his franchise and records no vote at all.
My point simply is this, that Justice Hardie did not, in fact, decide that. Justice Hardie was ad idem with Justice Sugerman in Campbell v Easter in that the decision proceeded on the basis that the parties who had completed ballot papers which were wrongly initialled had been prevented from voting. So there is an error in Justice Nagle’s reasoning.
Then there is – I can deal with this very quickly – a decision of Justice Starke in Varty v Ives (1986) VR 1 which sets out extensively the decision of Justice Sugerman. But at page 11 your Honour will see, about lines 40 to 50, his Honour sets out the arguments put by Mr Black, as he then was, and both of these arguments are again put by respondents in this case. The first of the arguments was that there are other references in the Act where voting suggests actual voting, and the second point, at line 50:
a perusal of the ballot papers in the sealed envelopes was not evidence of how the elector intended to vote but evidence of how he had voted –
His Honour said at 378 that he had reached – the first full paragraph ‑
a firm conclusion . . . that Sugerman J. was correct –
as to “prevented from voting”. Then as to the latter matter, there is a semantic distinction between an intention to vote as opposed to some evidence of an actual vote. He rejected that, and your Honour will see he says –
As to the latter matter I refer to the judgment of Isaacs J. in Kean v. Kerby –
What he is referring to is what we have picked up in our written submissions at paragraph 44, namely, where Justice Isaacs had said in Kean v Kerby that, at pages 459 to 460 –
When a vote is recorded in writing, no doubt the writing itself is the proper evidence of the way the elector intended to vote –
In other words, Justice Starke, as with Justice Isaacs, did not see that the semantic distinction which was urged upon his Honour Justice Starke and which is being urged upon your Honour here, and which Justice Hardie accepted in Dunbier v Mallam was a valid one.
Your Honour, the final case in that series is one which I think the hard copy has been provided to your Honour in the course of this morning. It is McBride v Graham, the decision of Justice Slattery in 1991, which I need do nothing more than refer your Honour to page 41 where his Honour adopted without qualification the analysis of Justice Sugerman and Justice Starke in Varty v Ives, at page 41 towards the foot of the page.
Your Honour, that leads me to come to two other decisions of this Court, not bearing directly on “prevented from voting” but which have some relevance to various submissions which have been put. The first is Cole v Lacey (1965) 112 CLR 45. The relevance of taking your Honour to this is again to meet the submission put, I think, on behalf of Mr Wang that because he does not in terms engage 365 the proviso is irrelevant and has no application ‑ section 365 and all it contains has no application because of the nature of the relief he is seeking. He says, “I am not seeking to avoid an election. I am seeking simply to have particular candidates declared not validly elected and others in their place”. That was precisely the relief that was sought in Cole v Lacey. You will see that, your Honour, at page 46, where the prayers for relief by the petitioner are set out, and (b) a declaration that:
(i) the petitioner was duly elected; (ii) the respondent was not duly elected –
Our point is that in the context of a petition for that relief Justice Taylor proceeded on the basis that the equivalent of section 365, then section 194 of the Act, was engaged. We say that is obviously correct because relief of the kind sought in that case, as with relief of the kind sought by Mr Wang, necessarily involves the voiding of the election of, at least in the case, Senator Ludlam and Mr Dropulich. In other words, section 365 cannot be outflanked by the form of relief and the fact that the relief does not in terms seek the voiding of the election. That is the argument put by Mr Wang in order to say it does not matter, or the prohibition does not apply because 365 is not engaged on his petition.
Your Honour, that brings me to the final decision I needed to address, and that is the decision of this Court in Re Lack; Ex parte McManus (1965) 112 CLR 1. This is not, we freely accept, a decision in terms about the powers of the Court of Disputed Returns, but where its importance lies is in its emphasis that the text and structure of the Commonwealth Electoral Act dictate that where there is a separate process of review, a separate scrutiny, there cannot be a polluting, as it were, of that process by conclusions reached or acts done at an earlier stage; an earlier and discrete scrutiny.
In this case, what was contended was this. There had been at the earlier stage what was called a random taking. When a particular candidate acquired his or her quota there was to be a distribution of the remaining votes, but which of the remaining votes given the excess and there was to be a random taking. There was an attempt to bring forward into the review stage, or the new scrutiny, the random taking which had occurred at the earlier stage, it being argued that there was no attack on that random taking; there was no official error tainting that random taking. But the Court was adamant that one was engaged in, adopting the submission of Mr Aickin as he then was, a de novo process. That submission was recorded at page 5, about point 4 of the summary of argument, and was adopted by the Court in terms on page 10, about point 8, where the Court said:
Where, as in the present instance, a recount of ballot‑papers is ordered after the parcels have been made up, compliance with the order necessarily involves a dismembering of the parcels and the commencement of the whole process de novo –
and at page 11 –
The former compliance with it –
that is the relevant provision for the random taking –
has become irrelevant.
There is another quite important point to note, with respect. The members of the Court – and there are two passages I would draw your Honour’s attention to ‑ at page 9 at the top of the page, their Honours say:
The alternative submission of the applicant should we think also be rejected. It recognizes that probably –
and their Honours add “and almost certainly” –
a recount of first preference votes will result in some variation in the quota ascertained originally in accordance with s. 135(5)(b) and also in the number of surplus votes of candidates elected on the first count or in the transfer value . . . as originally ascertained –
Then their Honours at page 10, about four lines from the bottom, say:
Even if by some miracle the new parcels happened to be identical in all respects –
in other words, there is a candid recognition by the Court reflecting no doubt the fact that there are ‑ in a re‑count or a fresh scrutiny there are new subjective judgments to be made. There are numerous steps at which different interpretations can be taken, et cetera, that you cannot simply translate or expect there to be translated an outcome from one stage of the scrutiny, of the ascertainment of the votes, to the next stage.
HIS HONOUR: Their Honours explain that at lines 10 to 12 on page 9:
votes previously rejected as informal may be admitted or votes previously admitted may be rejected.
MR BELL: Yes. What your Honour has, of course, in this case is actual evidence from the agreed statements of facts as to the reality that different assessments are made, different opinions are reached, different interpretations are generated, no doubt reflecting the fact that different people are engaged, there may be more time or different analysis, so mixing and matching has all kinds of vices, including the fact here that the re‑count which contributes 96 per cent effectively to the position, was conducted by a particular officer who no doubt applied his or her judgment to votes, what was formal, what was not, et cetera.
That officer is not the same officer that analysed or assessed the 1,370 missing votes and both of those officers would be different to whoever is directed to re‑count, whether it be the Court itself, an officer of the Court or an officer of our client in respect of the missing ballots.
HIS HONOUR: Not only that, there were different tallies.
MR BELL: Quite.
HIS HONOUR: I think, what, 530‑odd votes were tallied in the re‑count that had not been tallied at all in the fresh scrutiny, is that right?
MR BELL: That is so.
HIS HONOUR: Eighty, was it, papers which were blank were included in the rejected informal votes on the re‑count which had not been or had been dealt with otherwise on the fresh scrutiny I think it was.
MR BELL: Quite. The Court in Re Lack recognised the fact that structurally the Act, with its emphasis on scrutiny and its emphasis on fresh starts, fresh analysis was at pains to point out that there should be no polluting, as it were, of the new fresh process with the judgments and presuppositions contained in an earlier process. Section 281(3), which is the provision which the petitioners Wang and Mead necessarily invoke, presupposes that at the re‑count all the relevant ballots were available to be re‑counted and were available to be reserved. It presupposes that.
It requires the Australian electoral officer to consider any reserve votes and gives the Court a discretion as to whether to consider those, but the whole process has necessarily miscarried because a very significant number ‑ 1,370 ‑ were not even available to be counted let alone to be reserved for the consideration initially of the electoral officer and then filing the petition of this Court. So, your Honour, we submit that Re Lack supports the conclusion that the 1,370 were prevented from voting because their votes were not counted or capable of being counted in the scrutiny of that matter.
They were not capable of being counted because Re Lack would have foreclosed the secondary evidence of those votes ‑ and we do not even accept that that is a correct characterisation but is a shorthand – Re Lack would not have permitted the summary sheets to be taken into account so that re‑counting miscarried with the consequence of the inability to reserve, et cetera. It supports the general submission that the electors were prevented from voting and the prohibition in 365 is engaged but as my learned leader put, one gets to the same result even if one regards section 365 as not applying because that result is driven by both the central concept, the scrutiny, the structure of the Act and Re Lack’s emphasis on the need for there to be a discrete unpolluted separate exercise to be undertaken.
HIS HONOUR: That is to say, am I to understand your written submissions, and it would be useful if you had your written submissions available to you, at paragraph 31 as asserting what the Court cannot take account, the Court should not take account or both the Court cannot and should not – or cannot or should not.
MR BELL: Definitely should not. We would submit cannot because to take the summary records of the scrutiny into account the Court would not be engaged in the ascertainment of the outcome of the ballot by scrutiny. The central concept in 263, I think it is of election by scrutiny, presupposes the existence of the ballots. One scrutinises ballots, one does not scrutinise summary sheets. The exercise of scrutiny is for the purposes of seeing whether formalities have been complied with, whether votes have been initialled by the relevant officers, in the correct place and by the appropriate officer and also involves looking at the ballots for the purposes of seeing how they have been marked and how they have been assessed.
Section 281(3) contemplates that the Court will engage in that same scrutiny of reserved ballots. Section 281(3) has narrowed the ballots which the Court looks at but the whole Act is predicated on the fact that the relevant ballots are available. Where they are not available, at least in such a number as to materially affect the outcome of the election the Court cannot – and section 364 which is invoked by, I think, Mr Donaghue’s clients ‑ cannot be used, however broad it might otherwise be, to permit or authorise the Court to do something which is wholly inconsistent with the premise of the Act, namely, that the outcome of elections in this country under this Act, and as your Honour would put the Constitution, is to be by scrutiny.
It has to be scrutiny of the ballots and we do not have a material number of those ballots able to be scrutinised. So, the paragraph in the submissions your Honour has drawn my attention to is both should not but also could not.
HIS HONOUR: Can I just understand the “could not” submission because I think your opponents have to know exactly what target they are firing at. I think that your argument may amount to these propositions but again you will correct me if I am wrong. I suspect your argument proceeds by saying, one, the result of the polling for the election of six senators, et cetera, in this election was not ascertained by scrutiny because votes were missing. That is an assertion of fact, I think, is perhaps the premise for at least some parts of your case.
I think what you then say may be capable of being rendered as, the Court cannot now determine the result that would have been ascertained by scrutiny, perhaps it is that should have been ascertained by scrutiny – I do not think anything turns on would or should.
MR BELL: No.
HIS HONOUR: So the Court cannot now determine the results that would have been ascertained by scrutiny because 1,370 papers are not available for scrutiny. Is the third step in the argument one that goes so far as to say that in deciding what is just within 362(3) it is relevant, important, decisive – I do not know what – to observe that the Court cannot now determine the result that would have been ascertained by scrutiny because the papers are lost?
MR BELL: We would say it was decisive, your Honour. It was certainly relevant.
HIS HONOUR: So the “could” argument, as I put it rather briefly, is that an argument that depends upon the proposition that the Court cannot now determine the result that would have been ascertained by scrutiny? If I am trying to pin you to a proposition that you say you should not be pinned to now is the time to say no, Mr Bell.
MR BELL: Only this, your Honour, we have not in terms addressed the question of what is just in 362(3), as I think Mr Donaghue’s submissions recognise is strictly for the next stage and so we have not ‑ ‑ ‑
HIS HONOUR: Well, is it? Is it under question 3c? I am not sure that that is right. We will have to hear argument about this, but under 3c which asks is it necessary, I wonder whether ‑ and again the parties will have to educate me much more than I am presently educated ‑ is it an available point of view, if answers fall in a particular way to the various legal propositions that are in play to say, not necessary because even if established would not demonstrate that it is just that?
MR BELL: Yes, and we do give the answer “not necessary”.
HIS HONOUR: If that is so, 3c puts this issue firmly in play.
MR BELL: Yes. We do say, unequivocally, not necessary, because we say the process of examining the reserve ballots lacked utility because the number of votes and movements potentially in play, which are either 177 or 177 plus 64, are substantially outweighed by the number of missing ballots. One cannot scrutinise now those missing ballots. There is no ability in the Court, we submit, to proceed on the basis of the summary sheets because one is, the Court is necessarily engaged either itself or in ordering a re‑counting of votes and 281(3) contemplates you look at the reserve ballots for the purposes of considering whether to order a re‑count.
That is premised on the fact that a re‑count of the ballots is possible but it is not possible here because of the loss of the votes, so there is no utility, it is not necessary to engage in an exercise which has no utility because all it will do is lead to a further re‑count but if that further re‑count is not capable of happening because that which is to be counted, namely, the votes which were validly cast, are not in a material number all available, that relief would be an empty vessel, that relief would not be granted.
We marry that with the proposition that such a re‑counting would violate section 263, it could not be an ascertainment of the results of the election by the scrutiny of the ballots, it would be the ascertainment of the result of the election by a combination of the scrutiny of those ballots which remained available, i.e. had not been lost, and some evidence of particular people’s opinion, their reasoning which is not available or recorded, about a mass of votes ‑ 1,370 votes – would be the combination of the two and that is not election by scrutiny, that is election partially by scrutiny and partially by some other procedure which is not authorised by the Act and which the Act does not contemplate. May it please the Court, they are our submissions.
HIS HONOUR: Yes, thank you, Mr Bell. Yes, Mr Merkel.
MR MERKEL: Your Honour, can I just start off where my learned friend just finished? At the outset, we have handed up our outline of submissions.
HIS HONOUR: Yes, thank you.
MR MERKEL: We would, with respect, adopt the submissions of the Australian Electoral Commission, but going to the very matter that your Honour was raising with them, we would say that in our submissions address this in relation to the third proposition we would say that the answer is in deciding what is just in accordance with section 262(3) it is decisive that the Court cannot as it is required to do, in accordance with Part XVIII of the Act, determine the results that would have been ascertained.
What we wish to address, your Honour, is an alternative position to the primary position put by the AEC that this is a matter that falls primarily under 362 and 365 that this actually is a matter that can in the alternative be determined entirely under section 362(3) of the Act. In summary, your Honour, what we say is that the likely to have been affected limb of 362(3) is necessarily met by the close margins that we cite authority for the proposition that that is looking at the propensity of the illegal practice to affect the outcome so it is a forward looking, not a backward looking, exercise and that that ‑ ‑ ‑
HIS HONOUR: Can I interrupt there? The result that I have to consider in determining whether the result is likely to be affected is the result as declared, surely?
MR MERKEL: Yes, it is the result of the re‑count.
HIS HONOUR: Not some hypothetical true real result or some construct of that kind, the result is the result as declared and the question is, was the result as declared depending upon the particular resolution of the 50th exclusion point likely to be affected by the fact that the result was declared on a re‑count in which 1,370 votes did not have a part to play.
MR MERKEL: Correct, and your Honour, looking forward, not with hindsight, although it does not bring a different result, that result as declared based on the re‑count election was clearly likely to be affected because you had on any view 14 in favour of Mr Bow before the re‑count which became 12 in favour of Mr van Burgel on the re‑count, and if it were permissible to look at the missing records just for the just element you go to one and then you have got all the uncertainties about the informal votes, of which we know nothing, and if it were an equal draw then it would have Mr van Burgel remaining and Mr Bow excluded.
So, we say that the answer to the likely to be affected question is necessarily yes. That takes us back ‑ and we cite Tillmans and Universal Music for passages that make it clear, it is a forward not a backward looking exercise ‑ that takes us back to how much work does the word “just” do in section 362(3). At the outset, your Honour, what we are saying is that the Court’s role under Part XXII is as much part of the scrutiny provided for in the Act under Part XVIII and to say that that is the judicial aspect of the scrutiny as the Court of Disputed Returns is not to say that it applies any different rules in Part XVIII to the administrative scrutiny that is provided for as the prelude to the Court’s role. Just to make that clear, your Honour, first of all, 281(3), which is an integral part of the argument put on the Mead and Wang petitions, of course is itself in Part XVIII as part of the scrutiny.
Your Honour, can I just go back historically. The Court of Disputed Returns was always regarded as exercising its jurisdiction as part of the scrutiny. In the legislation folder, volume 2, your Honour, we have set out passages from Rogers on Elections. This is at page 779, particularly at the bottom of 791 – and this is the setting in which one approaches the Court’s role as at the date of the Constitution and the first Electoral Act – where Rogers states at the bottom of 791:
It has been already stated that where the seat is claimed for an unsuccessful –
HIS HONOUR: I am sorry, what page in Rogers is it?
MR MERKEL: Page 791, your Honour.
HIS HONOUR: In the bundle, but in Rogers.
MR MERKEL: I am sorry; 254.
HIS HONOUR: Thank you. Yes, go on.
MR MERKEL:
It has been already stated that where the seat is claimed for an unsuccessful candidate, the petition alleging that he had a majority of lawful votes . . . particulars of the votes to be objected to, and of the heads of objection, must be delivered by each side . . . In these cases the inquiry becomes a scrutiny, each party endeavouring to support the objections of which particulars have been given, and also to add to their own poll any votes to which they can show they were entitled.
There is a further passage, your Honour, which I will not read, but it is on the re‑count, at page 259, in the middle of the page. My learned friends have already put to your Honour why the Wang and Mead petitions necessarily claim a re‑count. So the re‑count that is sought from the Court is part of a scrutiny.
In addition to the cases that have already been cited, can I take your Honour briefly to In re Wood 167 CLR 145. This case concerned the question of the 12th candidate being unqualified and the question of the court’s power in respect of what should happen he being unqualified and therefore his election being void. Their Honours, in the joint judgment at 157, were asked certain questions by the President of the Senate and then the relevant parts appear at 165 to 166. The senator being elected having not been qualified, his election was to be void and then their Honours say, at the top paragraph:
It is therefore necessary to consider how the place which has been left unfilled should be filled.
Then the solution to that, your Honour, is at the bottom of page 165, the last four lines:
But in the scrutiny, the indications of preference for a candidate cannot be treated as effective by this Court once the return of the unqualified candidate has been held to be invalid. That is no reason for disregarding the other indications of the voter’s preference as invalid. The vote is valid except to the extent that the want of qualification makes the particular indication of preference a nullity. It is only to the extent that s. 16 of the Constitution invalidates the particular indication of preference that effect is denied to the voter’s expressed intention. It is as though the unqualified candidate were deceased . . . The provision which applies when a deceased candidate’s name is on the ballot paper is s. 273(27): a vote indicated on a ballot paper opposite the name of a deceased candidate is counted to the candidate next in the order of the voter’s preference and the numbers indicating subsequent preferences are treated as altered accordingly. For the purposes of the scrutiny which may now be conducted –
and that is effectively by the Court or under its supervision as the Court of Disputed Returns –
a vote for an unqualified candidate is in the same position as a vote for a candidate who has died, and the votes should be treated accordingly. 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.
Your Honour, that captures the essence that both section 7 of the Constitution and Part XVIII of the Act require the scrutiny to determine the true legal intent of the voters and that cannot be ascertained in the circumstances of the present case.
Your Honour, what we say is that – and we have set this out at paragraph 8 of our outline under the heading of “Is it just for the election to be declared void?” - we have set out the various sections, at the top of page 2 of our outline, in Part XVIII that make it clear that a scrutiny in the present case by reference to any information or records of the missing ballot papers cannot be a scrutiny of the ballot papers cast as required under Part XVIII and in accordance with the principles of Re Lack because that scrutiny will be a scrutiny not of the ballot papers but of previous records of voters and electoral officers’ view of the voters’ intent or the formality of the voters’ paper, and that is contrary to the entire scheme set out in those sections – we have picked out the relevant sections – which confines the Court to the ballot papers.
Your Honour, insofar as some of the submissions suggest the Court is at large in some way beyond that of the electoral officer in making these determinations, that is inconsistent with what this Court decided in Sue v Hill, your Honour. Your Honour, as you will recall, Sue v Hill concerned a challenge to the validity of the Court of Disputed Returns as a Chapter III Court. One of the grounds argued was that the kind of discretion set out in the Act, including 364, was such as to be unsuitable for the exercise of a judicial power.
Your Honour, your Honours dealt with that in the first judgment, the plurality judgment of Chief Justice Gleeson, Justice Gummow and yourself at paragraph 42 where, looking at 364, your Honours commented that provisions of that kind – this is at line 40:
They do not exonerate the Court from the application of substantive rules of law and are consistent with, and indeed require the application of, the rules of procedural fairness.
A similar observation was made by Justice Gaudron at paragraph 148, where her Honour says:
in a context in which power is conferred on a court, they are to be construed on the basis that the powers in question are to be exercised judicially.
When s 360(2) of the Act is construed on the basis that the power to invalidate an election is to be exercised judicially, it follows that the power is to be exercised only on relevant legal grounds, specifically those recognised by the Constitution, the Act and, to the extent that is not otherwise excluded, the common law. Section 364 is to be similarly construed.
I should say, your Honour, in Chanter v Blackwood, Justice O’Connor – and I will give your Honour the reference in a minute – made a similar observation. That is at 1 CLR 76, where his Honour made it clear that the Court of Disputed Returns, and this is page 75, your Honour ‑ ‑ ‑
HIS HONOUR: The power to decide only according to law.
MR MERKEL: I am sorry, your Honour ‑ ‑ ‑
HIS HONOUR: At page 75 “power to decide only according to law”.
MR MERKEL: Yes, your Honour. Your Honour, the point we make, which may be self‑evident, but the court is to apply the same rules in Part XVIII as the electoral officer, subject to such discretions or additional questions which the court may be asked to make a decision upon, such as, is it just that the election be declared void?
The central problem in the present case, your Honour, is one which those seeking to avoid the election being declared void and a new election must confront, and that is that the scrutiny required by reference to the ballot papers cast on the re‑count necessarily suffers from the deficiency created by the 1,370 missing papers. The ultimate position that they must contend for is that under the heading of what is just, the illegality, or the two illegal practices created by the missing ballot papers are to be overcome by what ultimately is a third illegal practice, which is to determine the election other than by scrutiny of the ballot papers on the re‑count.
We say that that cannot be a just outcome, nor could it be relied upon as justifying a re‑count under section 281. So on those grounds, your Honour, we would say that the answer to the third point put by your Honour must be that the exercise they are seeking cannot be carried out in accordance with the requirements of the Act.
We have tried to summarise that, your Honour, in paragraph 9, where we have said that any new result arrived at by the Court would be inconsistent with the Act for the reasons set out in paragraph 8 because irrespective of whether the Court relied on the declared result in a re‑count of the reserved ballot papers or if the Court engaged in the notional scrutiny, neither process would be authorised by the Act, your Honour. Is that a convenient time, your Honour?
HIS HONOUR: Yes. How long do you expect to require after lunch?
MR MERKEL: I would be no more than another five or 10 minutes, your Honour.
HIS HONOUR: Thank you, Mr Merkel, 2.15.
AT 12.45 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.14 PM:
HIS HONOUR: Yes, Mr Merkel.
MR MERKEL: Your Honour, I apologise, I noticed at paragraph 2 of our outline, the top line, section 62 is cited rather than 362. I apologise for that.
HIS HONOUR: I can cope with that. Yes.
MR MERKEL: Can I conclude by focusing on what we say is the real issue ultimately and that is how much work does the word “just” do in 362(3). For the reasons we put before lunch and also those put by the AEC in respect of 362, the narrow margin in this case compels the conclusion that a re‑count without the missing votes cannot be just. Can I just take your Honour back briefly to a passage at 166 in re Wood 167 CLR at the bottom of page 166 of the joint judgment. Their Honours adverted to this very point and then at about point 8 their Honours said:
But in the present case, there is no blemish affecting the taking of the poll and the ballot papers are available to be recounted if the valid choice of the electors can lawfully be ascertained by recounting. It is unnecessary to take a further poll.
In essence, your Honour, the submissions that have been put before lunch by ourselves and our learned friends in relation to 362 show that the missing votes constitute a blemish affecting the taking of a poll which is such that the valid choice of the electors cannot now lawfully be ascertained. We say that of itself within the context of section 362(3) makes it just that there be a declaration that the election was void.
But, in any event, your Honour, we say that what 362(3) seeks to address in terms of the criterion of or prism of “just” is to raise the question of whether there is something about the circumstances surrounding the missing votes, their likely or actual effect on the declared result that is such that suggests it is not just to declare the election void. Now, there is nothing that has been put forward about those circumstances or the outcome that would render it unjust to declare the election void.
What a number of the respondents seek to do is to look beyond the declared result to the possible outcome of the Wang and Mead petitions, and we say they are not factors which of themselves can render the declaration to be unjust. We wish to put a number of propositions, your Honour. The first is that we say that section 281(3) is logically a section that follows on from a determination under 362(3) about illegal practices, or put another way, 281(3) assumes a valid re‑count, subject to the reserve votes which have been put in issue. So that prior to the Court getting into the territory of a re‑count under 281(3), it is necessary to determine the consequence of the illegal practices in the present case.
There is contextual and textual support for that approach, your Honour. Section 360(3) and 362(3), the history of which your Honour has been taken to, were stated to be exhaustive or certainly said to be codifying the issues to be determined before a court can act on an illegal practice. The way in which both subsections lead the court to act in is that is it just or should the court exercise its power that the candidate should be declared not to be duly elected or the election should be declared void.
It does not anticipate the inquiry that 281 might take one to which is that another candidate should have been elected. We say that that suggests that each is intended to be having its own sphere of operation and that the
resolution of the issues under 362 are logically antecedent to and independent of the inquiry that is sought to be made under section 281.
Your Honour, the final point we would wish to make is that what ultimately is put by a number of the respondents is that this Court should have its own final determination of the re‑count to, in effect, show the missing votes could not have made any difference. Now, putting the factual issues to one side which is that they cannot establish that because they only challenge a limited number of votes which fall well short of the total number, we say that that is to make the word “just” do work that is beyond the purview of section 362.
We have dealt with it in paragraph 14 of our outline. What it effectively seeks to have the Court do is through the prism of “just” have the Court conduct or order a re‑count to see what the result would have been, not just on the reserve votes because they are saying we would have been elected on a proper re‑count and there is nothing in 281(3) or 360 within the context of the word “just” that would suggest that if that door was open it would not be open to everybody on all votes not just reserve votes.
So that would lead to a 281 inquiry of the kind that is being sought by the respondents or certainly the respondents to, in effect, have the Court determine not just the issues on the reserve votes but if those issues as we would expect raised systemic problems if there were to be found error then they would beset votes that went both ways. We say that is plainly – that possibility is beyond the purview of the criterion of “just” in 362(3). So we say for those reasons the question should be answered as we have set out in our submissions to your Honour.
HIS HONOUR: Thank you, Mr Merkel. Yes, Mr Thomson.
MR THOMSON: May it please, your Honour, may I begin by making two large points? The points are these: that we agree with the AEC that the Court ought not to consider the records of the missing 1,370 votes. We do not agree with the reasoning but we agree with that result. The next point is then what is the effect that putting those records out of consideration has upon the declared result of the election? We say that you would have to be satisfied that it was likely that those votes would have affected the results of the election and that is because of the requirement in section 362(3).
The Commission puts it on this basis. They say that the requirement in section 362(3) applies but they read it as meaning the possibility and the effect of the difference between us is this, that we say that as a matter of probability we cannot know what the effect of the results would have been had the 1,370 votes not gone missing. On the other hand, the Commission says you may be satisfied that there was a possibility that the result may have been affected. So in that sense, the matter comes down to a proper understanding of the test in 362(3).
HIS HONOUR: In which you seek to draw a distinction, do you, between likely to affect the result and cannot know the result that would have been obtained.
MR THOMSON: Precisely.
HIS HONOUR: Yes.
MR THOMSON: Those were the two large points. Can I return to the questions that have been reserved and work my way through those?
HIS HONOUR: Are you going to come back to this notion of cannot know the result and the distinction you seek to draw?
MR THOMSON: Yes.
HIS HONOUR: Yes.
MR THOMSON: The Commission has said that the electors with the missing ballots were prevented from voting, and that is on the basis of understanding the proviso introduced to the predecessor of section 365 in 1922. The Commission also says that the effect of the 1922 amendments was to introduce the test of possibility.
The position that we take is that the 1922 amendments did not introduce the test of possibility, but we say that even if they did so that there was no error or omission in the sense of being prevented from voting within the proviso, so that there is no question of that test which was introduced by the 1922 amendments from applying.
In relation to the question of the meaning of “prevented from voting”, we consider that it is a matter of the proper construction of the meaning of the word “voting” and it is quite clear that in some parts of the Act voting is used in a particular sense to refer to the physical act of casting a vote and that it does not extend to the question of whether a vote has been validly counted or not.
HIS HONOUR: What is the best example that you would give of the usage that you identify?
MR THOMSON: Section 239 relates to casting of votes for the Senate and it says that:
in a Senate election a person shall mark his or her vote on the ballot paper –
So the concept of voting there relates to placing the mark on the ballot paper.
HIS HONOUR: Well, you are taking a number of steps there, are you not? Are you not equating “mark his or her vote” with some generalised concept of voting? Do we not have to be a little more precise?
MR THOMSON: We would say that what the Act does is equate the making of a mark to being the equivalent of the vote.
HIS HONOUR: Well, you see, this is where I think we need to at least begin by attending closely to the language. Section 239, “shall mark his or her vote on the ballot paper by” et cetera. The language of immediate concern is “where any elector was, on account of various matters, prevented from voting”. So we are not dealing with identical language. What is the process that you are engaging in when you say that “voting” means marking the ballot paper?
MR THOMSON: The process that I am engaging in is to point out that in certain parts of the Act it is used in one sense.
HIS HONOUR: What is “it”? You say “it is used in one sense”. What is “it”?
MR THOMSON: The word “voting” or the verb “to vote” or the derivation of it, “a vote”, which is the product of voting.
HIS HONOUR: So “vote” and all its cognates you say is used with a singular meaning throughout the Act as meaning the act of the voter marking a paper. Is that what the point comes to?
MR THOMSON: That is exactly the point and my friend, the Solicitor‑General, pointed out that it should be no surprise that voting might have different meanings in different contexts. That is a concession, we take it, that the construction that they place upon voting in section 365 has a different meaning from other parts of the Act.
HIS HONOUR: You may be right but I did not take it as any concession. Go on, yes.
MR THOMSON: The way in which the word “voting” is used in other parts of the Act can also be mentioned in relation to something called the “issuing point” in section 4. That is defined.
HIS HONOUR:
place within the polling booth at which ballot papers are issued to persons voting at the booth.
Yes.
MR THOMSON: That is right. So, again, the concept of voting there, the particular word that is used, is the thing that occurs at the polling booth. The concepts of postal voting and pre‑poll voting denote something that happens prior to the counting of the vote. That is the reason why they are given the names “postal or pre‑poll” and that is the way in which the term is used throughout Parts XV and XVA. The whole purpose of this analysis is simply to show the Court that the concept of voting in other parts of the Act is different from the construction that is placed upon it by the Commission for the purposes of section 365.
We say that for the purposes of section 365, it is unnecessary to construe voting as extending to the counting of a valid vote and the reason is that we say that there are other duties contained within the Act which require the result of the election to be based upon, first, counting of valid votes. There are a myriad of provisions that deal with the requirements of counting of particular votes and, in particular, sections 273, 273A, 273B and 279B in relation to the Senate election.
We say that there is also a duty to declare the result of the election on the basis of all valid votes counted so that there is no need to give an extended meaning to the concept of “prevented from voting” because the Act imposes separate duties upon officers of the Commission to count all valid votes and to declare the result of the election by reference to those valid votes.
So we accept that it is the case that you need to count all valid votes and declare the result of the election on that basis. We just quibble with the fact that you need to do it through the mechanism of section 365 and a proviso to that section.
HIS HONOUR: Reading of the proviso to 365 and the fashion indicated or supported by the Commission is, I understand, not necessary to support the existence of there being a duty on electors to attend voting places and lodge ballot papers and duties on officers to act in various ways with respect to ballot papers. Why is the reading urged by the Commission not more consistent with the existence of those duties than the contrary reading which you assert?
MR THOMSON: We say that the reading urged by the Commission is inconsistent with the language that is used to the proviso and also inconsistent with the history of the proviso. In relation to the language, the concluding words of the proviso speak of a situation where there might be admitted – or if there is a prohibition against admitting – evidence of the way in which the elector intended to vote in the election. If he meant to pick up a situation which also covered a casting of a vote validly which had not been counted, then it would read the way in which the elector actually voted in the election. So that the use of the future and the reference to intention is inconsistent with the reading that the Commission has advanced.
In relation to the history of the matter, we point out that the proviso was introduced to deal with a situation where evidence had been admitted of the way in which voters would have voted had they not been prevented from casting valid votes. That was the situation in Kean v Kerby. So that was the more confined situation which we say the proviso was intended to deal with.
Can I point this out as well? It was introduced at the same time as the amendments to the first paragraph of section 365. The amendments were intended in some respects to align with the Ballot Act of 1872 in England. There is no precise equivalent contained in the Ballot Act 1872 to the proviso. The closest that one comes to the use of the words “prevented from voting” in the Ballot Act is section 9 and in section 9 it is quite clear that what is in question is the exercise of powers by an officer at a polling booth to prevent a voter from voting or casting a vote at the polling booth. So to the extent that this proviso grows out of Kean v Kerby and the Ballot Act, it was there to address a different situation from the situation which the Commission now says it extends to.
HIS HONOUR: Well the 1922 Act also introduced the legislative predecessor of 367, did it not? Section 26 of the 1922 Act introduced the legislative ancestor of 367, I think.
MR THOMSON: Yes, I think that is right.
HIS HONOUR: Section 367 speaks of not prevention from voting, it speaks of evidence of any witness that the witness was not permitted to vote.
MR THOMSON: Yes.
HIS HONOUR: Does the 1922 amendment, by adopting different language in respect of what we now see as the proviso in 365 from the language we now see in 367, suggest that the case which you assign as the only case of prevention from voting, is statutorily described as a case where the witness – the elector – was not permitted to vote?
MR THOMSON: No. There are other ways in which an elector may be prevented from voting such as what occurred in Kean v Kerby itself. There, there were a number of voters who went to a polling station and were given the wrong ballot paper for the relevant electorate and by that means they were prevented from voting, so section 365 deals with that situation, for example. However, sections 365 and 367 in their topic and content demonstrate that they were dealing only with what occurred at the polling station. So that, to the contrary, the topic of section 367, insofar as it deals with what occurs at the polling station supports the construction for section 365 that we have advanced.
The proposition then that we have sought to develop is that there is a distinction between casting a ballot and having that ballot counted. We accept that there is a duty upon electoral officers to count ballots but we do not think and we submit that it does not derive from section 365. It derives elsewhere.
Now, the decision of Justice Sugerman in Campbell v Easter applies a different construction – it applies the construction that the Commission has advocated. It was applied in relation to a similar provision in the New South Wales legislation. We say that it does not recognise the distinction that we have advanced and the effect of recognising the distinction that we have advanced is not to mean that an election can proceed without all valid votes being counted. It is just that you locate that duty elsewhere.
The natural words of section 365 in the proviso were regarded as leading to the result that we contend for, we think by Dunbier v Mallam and also the Cleary v Freeman Case. For those reasons, we say that there was no preventing of any elector from voting in this case where they had, in fact, cast their votes but they have subsequently been lost.
HIS HONOUR: Do you say anything in answer to the Commission’s argument that “prevented from voting” had an established and accepted meaning at the time of the 1922 amending Act.
MR THOMSON: This is the argument based on Woodward v Sarsons?
HIS HONOUR: Yes. No, well Woodward v Sarsons as picked up and applied in this Court.
MR THOMSON: Yes. I do have a number of points to make about that argument. First, as Justice McHugh remarked in Sue v Hill, Woodward v Sarsons was not a case which was based upon the common law. It was a case based upon statutory provisions. Justice McHugh made those observations at paragraph 227 of the decision of Sue v Hill. So the decision in Sue v Hill ‑ ‑ ‑
HIS HONOUR: Just a moment. I cannot remember how – I think the Court divided in Sue v Hill, did it not? On which side of the divide was Justice McHugh?
MR THOMSON: Your Honour is right and Justice McHugh was in the dissent. But this was a comment of the statutory background.
HIS HONOUR: It was a comment about the statutory background that seems to need, perhaps, to grapple with what Lord Coleridge would say and what the early members of the High Court were saying about look, this is all part of the common law of parliamentary elections. Do I not find repeated references of that kind in the case both in Woodward and Sarsons and subsequent ‑ ‑ ‑
MR THOMSON: Yes, I will deal with that.
HIS HONOUR: Yes.
MR THOMSON: This is just to set the background and to make the point that Woodward v Sarsons was decided in a particular statutory context. There are no doubt comments made in Woodward v Sarsons that are of a more general nature. I will deal with them in a minute. But the point about the particular statutory context is that nothing in that particular statutory context dealt with a phrase “prevented from voting”. So that is the first point.
The next point is to understand, from Woodward v Sarsons, what it was speaking about or Lord Coleridge was speaking about when he mentioned the will of the electors and whether they were prevented from voting. We would make the submission that when he talked about the electors being prevented from voting, he was talking about them in a unified sense, as opposed to referring to individual voters.
So that if particular voters had had their ballots incorrectly rejected but that did not affect the result of the election because if they had been counted then there was no change in result, then he would have said that the will of the electorate had not been prevented from voting. Can I take your Honour to page 750 of the decision in Woodward v Sarsons? In the second paragraph, can I commence by reading what Lord Coleridge said there:
It follows from our decision as to the different ballot papers, that, if the sixty which were given for Sarsons, but properly dis‑allowed at the counting by the returning officer, had not been rendered void by the presiding officer, they would have made the votes for Sarsons –
He continues on and says other things about how other votes would have been counted. He then says:
Inasmuch, therefore, as no voter was prevented from voting, it follows that the errors of the presiding officers at the polling stations No. 130 and No. 125 did not affect the result of the election, and did not prevent the majority of electors from effectively exercising their votes in favour of the candidate they preferred, and therefore that the election cannot be declared void by the common law applicable to parliamentary elections.
If you look at the outset of Lord Coleridge’s judgment, the errors at polling station No 130 were the errors about rejecting votes that had been wrongly marked but which had been cast. So he seems to be saying that even despite the fact that those votes were wrongly marked, were wrongly rejected because of markings upon them, because when you counted them in there would have been no different result, it did not prevent the voters from voting.
He is speaking of them as a unity. He is not speaking of them as individual voters. Therefore, we say that this passage or the relevant passages in this case do not have any particular application to a provision such as the proviso in section 365 which is obviously concerned with individual voters.
Can I also make the point that none of the submissions that I have put to you are intended to take away from the proposition that section 7 of the Constitution requires there to be direct election by the people? We completely accept that there needs to be all valid votes counted but, as I have said before, we locate that elsewhere.
If it is convenient, I might then turn to the second question and question 2 divides into really two parts. The first part is whether the Court is prevented, by reason of section 365, from examining the records of lost ballots and the second part is whether there is some reason which prevents the Court from examining the records of the lost ballots.
In relation to the first part, we say that section 365 does not prevent the Court from examining the records of the lost ballots. The reason for that is because the proviso has no application because this is not a situation of voters being prevented from voting. We say in support of that that the outcome that we propose is consistent with the purpose to section 365.
The primary concern of Justice Isaacs in Kean v Kerby was that people who were to testify before him were being asked to reveal their electoral intentions. He was so concerned about it that he recorded in his judgment that he had them on the stand, and he advised them that they did not need to testify. But he said that all of them were uniformly eager to do so. That was his primary concern. That concern is in no way impinged upon by a construction which allows evidence of anonymous ballots to be considered. The primary concern was the secrecy, and the particular intention of a particular elector being disclosed.
We say that there is no other statutory provision apart from section 365 which precludes admission of evidence of the Secretary of Records of the first count. The Commission says that the structure and text of the Act and the decision of Re Lack has that effect. We say that nothing in sections 263 or 278 expressly or impliedly precludes evidence just because a re‑count has been directed.
Re Lack is a case that concerned whether or not a new count would prevail over the old count where the votes for the new count were available. It has nothing to do with a situation where the first count is partially unavailable, and therefore the Court did not consider that particular case. On the one hand, we have a duty, we would say, under section 283, for the electoral officer to declare the result of the election. On the other hand, there is a duty to conduct a re‑count, and the question is how do those duties reconcile in a statutory sense, in circumstances where because of a loss of ballots, the re‑count cannot be fully conducted.
As we point out in our primary submissions, it is not the case that the statute provides for the release of the duty of the electoral officer to declare the result of the election. We therefore say that as a matter of necessary modification that the re‑count and the duty to conduct the re‑count continues, but only to the extent that it can best be carried out because obviously the duty to declare the result of the election is the primary duty, otherwise you are left in a position where the electoral officer cannot carry out the duty to declare the result of the election by reason of the failure to be able to conduct the re‑count.
We say that is obviously absurd because the electoral officer has to declare the result of the election in order to then have a result that could be challenged and so much seems to have been accepted by the Commission in its petition which states exactly what I have just said. Nevertheless ‑ ‑ ‑
HIS HONOUR: Is it an available point of view to observe one, section 283(1) obliges the AEO to declare the result of the election and names - see 283(1)(a). Section 263 provides the result of the polling shall be ascertained by scrutiny. Section 279B required that a re‑count be conducted in a particular fashion. Is it an available point of view that the result of the election ascertained and declared was not ascertained or declared in accordance with the Act?
MR THOMSON: That is correct, but the question then comes about whether the breach of the Act was likely to have affected the result of the election.
HIS HONOUR: Yes. Why then is it relevant or necessary to embark upon an inquiry or a path of the kind you would map out in which the re‑count is to be conducted not in accordance with 279B, but as far as possible in accordance with 279B, what, plus any available record, minus any available record, some patchwork? What exactly is it that you are proposing?
MR THOMSON: That to the extent that reliable records are available of the missing ballots that the duty to declare the result of the election would require the electoral officer to take those into account. In this case, it does not seem to be contested by the Commission that no reliable records are available of the first count, a count that was nevertheless conducted with a scrutiny, but the point that we draw attention to then is twofold: first, that the relevant illegal practice is the failure to keep reliable records of the first count, and that is not one that is alleged. But even if that is a technical point, then because there are no reliable records, that affects the way you go about assessing whether the breach of the Act that your Honour just identified was likely to have affected the result.
HIS HONOUR: Those are propositions that entirely depend upon the content that you are giving to the notion of “reliable record”.
MR THOMSON: I accept that ‑ ‑ ‑
HIS HONOUR: In there lies the whole of the relevant debate, I would have thought.
MR THOMSON: Yes, and that influences the outcome to question 3, and that is why I began with my remarks as an overview at the outset.
HIS HONOUR: Yes.
MR THOMSON: We point out in our primary submissions and in this oral outline of argument that no petitioner claims that the records of the missing ballots were reliable. It appears that the Commission goes so far as to say that the records are inadmissible for your consideration because they express an opinion and, if that is right, then you cannot understand or know what it is that would have been the result of the 1,370 ballots in any way.
We point out that the other petitioners, Mr Wang and Mr Mead, do not claim that the records of the missing ballots are in themselves reliable. They say that they are sufficiently reliable to enable the Court to reach a conclusion as to whether the declared result of the election was likely to have been affected because they say if you take into account the rulings that would be made on the reserved ballots and you combine that with what we know about the records of the missing ballots, then you can reach a conclusion about likelihood which means that you can be satisfied before the relevant test because the margin would be so great.
Those propositions depend upon the success that Mr Wang and Mr Mead might have in relation to the reserved ballots and their challenges which are made to those reserved ballots ‑ ‑ ‑
HIS HONOUR: Not only that, they depend upon the comparison that is implicit in the words “so great”.
MR THOMSON: Yes.
HIS HONOUR: That is a comparative statement. It is a statement that is adverting to what the fate ought to have been in respect of the 1,370 missing papers.
MR THOMSON: Yes, and another point we draw out of ‑ ‑ ‑
HIS HONOUR: I do not know what starting point one takes, whether they say you take the starting point of “the record is to be taken as wholly, substantially, entirely, generally accurate”, some epithet qualifying “accurate”. You compare with that “we can show up to 200/250 wrong decisions were made on the re‑count”. You compare that with decisions that were made in the fresh scrutiny which we assume were wholly, entirely, largely, somewhat accurate, and we arrive at a result. That seems to be the argument.
MR THOMSON: Yes. We would take that type of argument one step further and turn it around and say that an allegation of sufficient reliability is a concession that there is a degree of unreliability because you are unable to make an allegation of complete reliability. Now, if you accept that there is a degree of unreliability before the Court could act upon those allegations of sufficient reliability, you would have to understand what the reasons for the unreliability are and what those reasons say about the extent of the unreliability because once you accept that there is a degree of unreliability, you cannot act upon the basis of those records at all until you can quantify the extent of the unreliability. So we turn that argument around upon itself. It is for that reason that we say that the records of the missing ballots are not open to be considered by this Court. They are irrelevant and may well be inadmissible for the reason articulated by the Solicitor‑General as well.
HIS HONOUR: If there are irrelevant, they are inadmissible.
MR THOMSON: Yes, but they may be inadmissible for the additional reason that they involve the expression of some form of opinion evidence without the basis for that opinion being available, which is what I understood the Solicitor‑General to submit.
HIS HONOUR: I can hear your opponents at once saying rules of evidence do not apply, so the point cannot be just cast in terms of some technical evidentiary point, can it, Mr Thomson?
MR THOMSON: No, and our substantial point is the one of relevance.
HIS HONOUR: Yes.
MR THOMSON: That brings me to address the three subparts to question 3. In relation to subpart (a) and whether the Court can consider the reserved ballots, there is unanimity among the parties that the Court has the power to do that. We have confined ourselves to mentioning section 281(3) ‑ ‑ ‑
HIS HONOUR: I am not sure; did the Commission say “could”? I thought they had got to the point – maybe I am wrong – that the Court cannot take account of the records of the reserved papers. Perhaps I am mistaken.
MR THOMSON: If you look at paragraph 6iii(a) of the Commission’s primary submissions, they answer the question as to whether the Court is permitted to consider the reserved ballots by saying:
Yes, by a combination of ss 281(3), 353(1) and 360.
HIS HONOUR: I had in mind the debate I had with Mr Bell about paragraph 31 of the submissions in “cannot” or “should not”, but these are matters that no doubt will emerge in the transcript.
MR THOMSON: Yes, I had understood the point that Mr Bell was making on paragraph 31 to relate to question 2 and the missing ballots, not the reserved ballots.
HIS HONOUR: I see. Yes, sorry, I am at cross‑purposes. My fault, not yours. Go on.
MR THOMSON: So I think there is unanimity. We have confined ourselves to section 281(3). Others have pointed to the history of the matter and said that prior to the introduction of the predecessor to section 281(3) there was still power. It probably does not matter that much for present purposes, as there is unanimity.
The next question, which is subparagraph (2), is whether the reserved ballots are relevant to the disposition of the petitions, and the question as to whether they are relevant or not depends on how the Court treats the missing ballots. It also depends critically upon the test of likelihood or possibility. In that regard, it appears to be accepted that the test of likelihood applies, but the construction of likelihood that has been submitted to this Court by the Commission and by Senator Ludlam is that if there is a possibility of the result being affected, then that means that you could be satisfied that it was likely that the result would be affected.
Can I commence by making some historical observations? The Commission’s position, as expressed in paragraph 54 of its primary submissions, is that the test of possibility was brought into existence by the amendments that came into effect in 1922. So that if you look at subparagraphs (vi) and (vii), the last part of subparagraph (vi) says:
As such, what Isaacs J said in Kean v Kerby in relation to the English legislation may be taken to apply to the Australian legislation after the amendments introduced in 1922.
What Justice Isaacs had said in relation to the English legislation was that if the result of the election may have been affected, then the Court could declare the election void. The Commission says that the effect of the amendments to section 365 or its predecessor created the possibility argument.
Can I make these comments, that quite probably at the time that Justice Isaacs was speaking in Kean v Kerby, when there was no definition of “illegal practice” contained within the Electoral Act, there was thought to exist a distinction between a category of error or omission covered by the predecessor to section 365, and an illegal practice covered by the predecessor of section 362.
The word “likely” was already in the statute at the time that the 1922 amendments were made, and it was contained in section 191, the predecessor to section 362. Now, if Justice Isaacs considered that the effect was to align the position with English law, it was an alignment only in respect of errors or omissions but not that other category of illegal practices.
That position may well have been what informed the remarks of Justice Taylor in Cole v Lacey who said that the history of the provision left no room for doubt that if it was alleged that the result of the election may have affected the outcome, then that was all that was needed to be proved to declare the election void. But in 1983 the definition of illegal practice was extended, and that is what drives the Commission to accept that the question of whether an election is declared void has to now go through the root of section 362(3).
When the decision of Kean v Kerby was made and when Cole v Lacey was decided, that may not need to have been accepted and quite probably was not accepted. So the question of the possibility test has a historical basis in relation to adopting words out of the English Ballot Act but the extension of the concept of illegal practice to now cover error or omission means that a different test applies. We would say that it is a wrong thing to then water down the test contained in the word “likely” that was already present in the legislation to mean possibility by reference to section 365 and what happened there.
So we challenge the test of possibility directly on that basis and say that the word “likely” should be given its ordinary construction, meaning probably. There is a good reason for that and the reason is that the declaration of an election as void has very significant consequences. It has the consequence of the incursion of a large degree of expense and quite great inconvenience and, therefore, a reasonably high hurdle ought to be set and the legislature has set that hurdle. So that is the policy reason for adopting the point we make about “likely”.
Can I mention the decision in Bridge v Bowen? It was on different legislation, but it illustrates the way in which there may arise differences about a view concerning a test of likelihood and a test of possibility. In that case, the extent of the margin of victory was less than the number of unqualified voters, but the way in which the unqualified voters voted was unknown. So you could quite easily and readily say that it may have affected the result of the election but, as the majority said, you could not be convinced that it had or would have affected the outcome of the election and, therefore, on a possibility test you would declare the election void and on a probability test you would not, so we say that the same sort of analysis ought to apply here.
HIS HONOUR: Can you spell that out for me? How do you say that works?
MR THOMSON: That here it is unknown what effect the missing votes would have had upon the declared result. It is unknown which way those votes ought to have been counted, therefore you cannot be satisfied that it would probably have affected the result. When I speak of result, what I mean is not the margin of the election victory, but whether the right candidates were returned.
HIS HONOUR: Why not? When fresh scrutiny was at 12 or 14 one way, the re‑count is 12 or 14 the other way, combine the two and you are down to one, why do you not conclude likely affected by excluding 1,370 ballot papers from the re‑count?
MR THOMSON: Because you do not know and cannot know which way those votes would have been cast. They could all have been cast in favour of my client.
HIS HONOUR: Once that possibility is admitted, we know that they might also have been cast the other way.
MR THOMSON: Precisely.
HIS HONOUR: And therefore ‑ ‑ ‑
MR THOMSON: There is a possibility each way.
HIS HONOUR: And what, the Court says, “Can’t make up my mind therefore”?
MR THOMSON: Because you cannot be satisfied on the onus of “likely”. So that is why it comes down to a proper construction of understanding what “likely” might mean. That was what divided the majority and the minority in Bridge v Bowen, effectively. The majority said ‑ and they used the Senate election as an example, Justice Isaacs particularly picked up the reference to a Senate election – they said it would be a ‑ ‑ ‑
HIS HONOUR: It was a very different Senate election in those days. It was mark with a cross the three or five candidates whom you want elected, not the exhaustive preferential let us have a quota plus one, et cetera, very different. Yes, go on.
MR THOMSON: I understand ‑ ‑ ‑
HIS HONOUR: But let me – restate for me, would you, again. I know I am asking you to repeat things you have said, but tell me again why, knowing fresh scrutiny, 12 or 14 one way, re‑count 12 or 14 t’other, add them together if you could, one, why those facts, if you like, combined with the recognition that on re‑count different tallies, different assignments to different parcels, why do you not conclude the exclusion of 1,370 votes was likely to affect the result?
MR THOMSON: You could only reach that conclusion as a matter of probability if you knew which way certain of those votes would have been cast, and if you have to exclude from consideration completely the records of the first scrutiny because they are to be regarded as unreliable and wholly unreliable, then you do not know how those lost ballots would have been cast, therefore you do not know how it is that, as a matter of probability, the election would have turned out.
HIS HONOUR: Is not the consequence of that argument that, assuming catastrophic fire in the warehouse that stored half the votes for the Senate election for Western Australia the night after the poll, nobody’s fault, just one of those things, lightning strike, if you like, catastrophic fire, what, the Court has to say “I do not know what the result was. Conduct a count of what is left and that will do”?
MR THOMSON: It is a matter of margins and it is also a matter of degree involving the number of votes that have been counted. If, for example, 50 per cent of the votes had been destroyed, then you might reach the view quite easily that it was likely that there would be a different result.
HIS HONOUR: And that is why, in this closely contested election where we know that the whole premise for these debates is that the 50th exclusion point is critical and determinative and that it is very, very close. The available material so far suggests either 14, 12 or on one patchwork arrangement one. You say not knowing what the 1,370 ballot papers said means, what, form no conclusion about effect?
MR THOMSON: That is right, and that is why I return to Bridge v Bowen because in that case there were more personators than the margin of victory, but the critical fact was that the way in which those personators voted was unknown.
HIS HONOUR: What is the best passage to which you would refer in Bridge v Bowen? What is the golden moment?
MR THOMSON: If I can start at the bottom of page 619:
The case of R. v Jefferson seems to me quite sufficient to dispose of the case, even if sec. 40(6) leaves investigation open.
HIS HONOUR: Look, I am literate, Mr Thomson, I can read. What is the passage upon which you particularly depend?
MR THOMSON: Well, the approval of R v Jefferson which after narrating the facts into the top of page 620 and then in the second paragraph it says that, “It is impossible to distinguish this case”, and the question about onus. Then if I can take you to page 622, the main long paragraph sets out the background and then at the bottom of the page there is a passage going into the next page particularly about Australian Senate elections.
HIS HONOUR: Yes.
MR THOMSON: Then in the judgment of Justice Higgins in the first main paragraph of the judgment at 625 where he talks about the “inversion of the burden of proof” at the end of that paragraph. Then on page 627 Justice Higgins deals with a line of New South Wales authority:
which established the principle that if there be shown to be wrong votes sufficient in number to affect the result of the election, the candidate who has the majority of the votes –
has the burden. It is quite obvious that that decision in Bridge v Bowen provoked a serious source of contention within the Court because of the concluding comments of Chief Justice Griffith after he was forced to accept he was in the minority.
HIS HONOUR: Yes.
MR THOMSON: So if the logic of our submission is accepted, the consequence is this, that it is necessary to proceed with examination of the reserved ballots because whether the challenges succeed or do not succeed will be the basis upon which the election results should be declared to stand or fall.
HIS HONOUR: Stand or fall by doing what with the knowledge of the lost papers?
MR THOMSON: Well, the lost papers cannot be taken into consideration.
HIS HONOUR: So you determine who is elected or not elected according to a count of available votes?
MR THOMSON: That is right.
HIS HONOUR: Why does that lead to a result where the senators concerned are directly chosen by the people?
MR THOMSON: Well, section 9 of ‑ ‑ ‑
HIS HONOUR: They are directly chosen by those of the people who voted, whose votes happened to be available after official error has led to some of their papers being lost.
MR THOMSON: Section 9 of the Constitution provides power to the Commonwealth Parliament to enact the laws about how Senate elections are to be conducted. It has enacted a law with a statutory requirement contained in section 362(3) and that is the consequence of imposing a requirement of likelihood as opposed to possibility, and no one has challenged the constitutionality of the requirement of likelihood. Those are our submissions.
HIS HONOUR: Thank you, Mr Thomson. Mr Donaghue.
MR DONAGHUE: Your Honour has I think just been handed our oral outline ‑ ‑ ‑
HIS HONOUR: Yes.
MR DONAGHUE: ‑ ‑ ‑ which your Honour will see that our submissions orally are to be divided into four parts which are labelled in that outline which we are handing to the other parties now, A to D. As a result of the course of the arguments taken so far this morning, I propose to invert B and A, so I will start at B, then go to A and then through to C and D.
But before I do any of that, can I make some submissions about the reliability of the records of the 1,370 votes which has been a matter your Honour has explored with some of my friends this morning. Just before I do that, one matter of housekeeping - we have I hope given a short one‑page document to your Honour that does no more than correct some – in the version in the bundle of the cases that we think your Honour has been given, the print of Freeman v Cleary is different to the print that we were working from and so all of our page numbers are wrong, so that is all that document does.
HIS HONOUR: Thank you.
MR DONAGHUE: So first, your Honour, the facts. Could your Honour turn to the amended statement of agreed facts and if I can ask the Court to start with paragraph 7 under the heading “The scrutiny of votes in Senate elections”, there is in this part of the statement of agreed facts a summary of the steps in the process and your Honour will see 7a, the first relevant step is:
A first count, described as the ‘original scrutiny’ –
This is a scrutiny that has not so far been mentioned at all today, which is conducted right at the start at the polling place by the Assistant Returning Officer and a record of that count is made and entered into the AEC’s records. Then the votes are bundled up, sent to the Divisional Returning Officer and counted again. That is the fresh scrutiny. So there have in respect of these missing records been two counts by two separate officers at two separate places. If your Honour jumps from there – and I am taking the paragraphs out of order for a reason – to paragraph 58 of the agreed statement of facts.
HIS HONOUR: Page?
MR DONAGHUE: Page 15.
HIS HONOUR: Yes.
MR DONAGHUE: Paragraph 58 refers to:
In the scrutiny conducted by AROs –
That is the 7a original scrutiny –
and DROs –
The 7b fresh scrutiny –
respectively . . . of the 1,370 ballot papers now missing –
There is then some detail as to various, I think it is fair to say, small differences between the results recorded by the ARO and the DRO, but the relevant conclusion is at paragraph 58e:
None of these differences between the original scrutiny and the fresh scrutiny were relevant to the margin in favour of Mr Bow over Mr van Burgel.
So it is an agreed fact before the Court that the two officers on two different occasions counted the missing ballots and insofar as they bear on the margin at the 50th exclusion point, they are identical. That, we submit ‑ ‑ ‑
HIS HONOUR: No, they are not identical. They made no difference. That is a different proposition, and it is an importantly different proposition because at every stage in this process there seemed to be different decisions made.
MR DONAGHUE: Your Honour, I will take that up if I may.
HIS HONOUR: Yes.
MR DONAGHUE: It is possible, as your Honour puts to me, that there are differences that cancel each other out in respect of those votes. It is also possible that while at many stages of the process there are differences, at this stage of the process the records were relevantly the same, bearing in mind that we are talking about, as I will show your Honour in a minute, 23 votes in total that bear on that margin.
So if your Honour goes from paragraph 58 to paragraph 42, there are some agreed facts about the missing ballot papers. The records of the two scrutinies that I have just identified, the original scrutiny and the fresh scrutiny, are annexed as annexures A and B referred to in 42a and 42b, but it is a 42f that the parties have agreed about what the records of the missing ballot papers relevantly showed insofar – this is on page 13, your Honour.
HIS HONOUR: Yes.
MR DONAGHUE: Relevantly showed with respect to the margin at the critical point, and what they showed is that there would have been 18 more votes for Mr Bow and five more votes for Mr van Burgel, with a net difference of 13.
HIS HONOUR: Which is a fourth version of the result, is it not? We have 12 one way, 14 another way, one if you combine them.
MR DONAGHUE: Well, that is I think the ‑ ‑ ‑
HIS HONOUR: This would have it 13.
MR DONAGHUE: No, that is the combination. The way you get to the one is by combining that 13 with the 12.
HIS HONOUR: Yes.
MR DONAGHUE: But the point that I am seeking to draw from this at the moment, your Honour, is that while it is true that there are 1,370 votes that went missing, the agreed facts before your Honour show that most of those votes had nothing whatsoever to do with the 50th exclusion point. In point of fact, they were mostly votes for my clients, your Honour, but for the four senators who had earlier been elected, and it is only a very small per cent, 23 out of 1,370 or 1.6 per cent of these votes that had been lost that had anything whatsoever to say about the issue with which your Honour is now concerned.
HIS HONOUR: What is that issue?
MR DONAGHUE: Whether or not – well, I condensed that too much, your Honour, that there are ‑ ‑ ‑
HIS HONOUR: Just a little.
MR DONAGHUE: ‑ ‑ ‑ I accept a series of questions that your Honour will need ultimately to decide, but it is only 23 of the 1,370, in our submission, that are relevant to any of those questions provided – and it is a big proviso – that your Honour accepts that it is open to the Court to look at the records.
But if it is, as we will develop shortly, open to your Honour to look at the records, when you do look at them, you will find that while a lot of votes were lost, the votes that were possibly relevant to the key issue were very small in number, and you will find that two different officers at different times agreed about what that 23 relevant votes showed.
Unless somebody persuades your Honour that there is some reason to doubt what those two officers came up with about those votes, that, we submit, has a critical bearing on how this matter should be resolved, particularly when it comes to your Honour considering what Mr Mead and Mr Wang asked you to do about the reserved ballot papers, because instead of trying to overcome a margin of 1,370 votes about which nothing is known, your Honour can know that if there are any significant movements of the kind that Mr Wang or Mr Mead suggest will come from looking at those ballot papers, it did not matter.
The results of these 1,370 would not have affected the result of the election – as things presently stand, the facts would suggest a margin of one vote in their favour already, so any vote reserved ballot paper that they persuade your Honour should have counted in favour of them will just increase that margin from one progressively upwards. Your Honour, if I could move from the question of the missing ballot papers of which we say only 1.6 per cent are relevant to the wider criticisms that are ‑ ‑ ‑
HIS HONOUR: Yes, percentages, I do not think, are especially helpful, Mr Donaghue. They demonstrate that counsel own a calculator; that is all. Numbers are what are critical here.
MR DONAGHUE: Yes. The number that we focus on, your Honour, is the number relevantly, if the records are admissible, is 23, not 1,370. There have been a number of submissions that have been made today to the effect of the unreliability of the fresh scrutiny, it seems to us, on the footing of the variations that took place between the fresh scrutiny and the re‑count. Can we just make some brief points about that?
If your Honour looks at paragraph 40 of the agreed facts, that is the reference – and I think your Honour referred to it this morning – to the 7,826 movements. It is page 10, your Honour, of the document, at the bottom of page 10. While there were 7,826 movements, it is apparent from paragraph 40g that each change counts as two movements, so you are actually ‑ ‑ ‑
HIS HONOUR: That is why I said 3,913 papers ‑ ‑ ‑
MR DONAGHUE: Indeed. I am just stepping it through your Honour, but I appreciate your Honour understands that. We are talking about a change of just short of 4,000 votes. That is 4,000 votes out of the total 1.35 million votes that were counted. In our submission, your Honour, that level of change is far short of demonstrating that there was some systemic unreliability about the fresh scrutiny that should lead your Honour to be extremely hesitant about giving weight to those records.
The reality is that that fresh scrutiny very nearly, and in many cases will be the basis upon which the election of Members of the House of Representatives and senators are elected. In this case, the re‑count was originally refused by the relevant senior electoral officer in Western Australia, and if that decision had stood, then the results of all of the members of the Senate would have been declared on the basis of these records of the fresh scrutiny that your Honour is now invited to treat as unreliable ‑ ‑ ‑
HIS HONOUR: What am I to make of that? If things had been different, things would have been different. So what?
MR DONAGHUE: Only this, your Honour. Your Honour is being asked to shut your eyes to the records of these counts. A number of parties are saying you have to proceed upon the basis that you know nothing about what happened with respect to these votes. Our basic point, your Honour, is that that defies reality. Your Honour has an accurate count – it changed and I know your Honour has warned me off percentages, but that is a tiny level of change in counting 1.35 million votes on change between the fresh scrutiny and the re‑count. When one draws down and looks at the specific scrutiny of these missing ballot papers, the numbers become even tinier.
So that while your Honour could not be persuaded that there is no possibility at all that the result would have changed, on any attempt to discharge a burden of proof looking at this material to say that the result was wrong, you could not come close, having regard to the figures that have been agreed. Your Honour, can I move from there to Part B ‑ ‑ ‑
HIS HONOUR: Result wrong, or result likely to be affected? Is there a distinction?
MR DONAGHUE: Not when you look at the numbers, and this is a point I will develop by reference to some of the cases, including in particular Woodward, but if your Honour is allowed to look at the ballots there is, in my submission - your Honour has reliable evidence about what actually happened, and so there will not be a meaningful difference between was it affected or was it likely to have been affected because if the evidence goes in, it is good enough to satisfy either standard. It is good enough to support a finding of fact as to what happened.
HIS HONOUR: Is that a proposition that pays due account of the need to identify the result that is under consideration? Is the result under consideration the result as declared?
MR DONAGHUE: Yes, I accept that.
HIS HONOUR: Not a hypothetical true result but the result as declared.
MR DONAGHUE: If your Honour accepts that the records are admissible it follows as a matter of logic on our submission that those records would prove, we think, that the declared result was affected, because the declared result was in favour of Mr Dropulich and Mr Ludlam. If those records go in, they would suggest that the declared result should have been in favour of the Pratt and Wang interests. You would get that far.
HIS HONOUR: Let me understand this. Do you support what I understand to be a necessary proposition advanced by both Wang and Mead, and I know is advanced by AEC, that the loss of ballot papers was likely to affect the result as it was declared?
MR DONAGHUE: The way your Honour puts that to me does not incorporate an element of proof. If the ballot papers are admissible then yes, I do. If the ballot papers are not admissible then there is the whole issue that Mr Thomson has just been exploring with your Honour.
HIS HONOUR: Then divide your answer. If you say I may look at the records of the lost papers ‑ ‑ ‑
MR DONAGHUE: Then we submit it would follow that, those records going in, the material before the court should satisfy your Honour that the declared result was incorrect, but it should also satisfy your Honour that you have the material necessary to declare that Wang and Pratt should be returned in place of Ludlam and Dropulich.
HIS HONOUR: If, by contrast, I may not consider the records of the original and fresh scrutiny relating to the lost ballot papers, what is your submission on the question whether I should be satisfied that the result as declared was likely to be affected by loss of 1,370 papers?
MR DONAGHUE: At the risk of enraging your Honour, we have deliberately not entered that arena at this stage because we did not consider it to be ‑ ‑ ‑
HIS HONOUR: Now is your chance. By all means make no submission if that is what the interests of your clients require, Mr Donaghue. I do not compel you to make a submission, but now is your chance to make any submission that you wish to make on that issue.
MR DONAGHUE: Yes. The question as we understand to be presently before the Court to which this issue relates, at least as we understand it, is question 2, which concerns the admissibility of the records. In order to answer the question that your Honour puts to me, rather than the way that the Court should answer the question ‑ ‑ ‑
HIS HONOUR: I think the question 3(c) may also require me to form a view; I do not know whether it will, but it may require me to form a view about whether examining the decisions made in respect of reserved papers is necessary to determine what relief should go. That is to say, one possible outcome that I at the moment see as being at least open to consideration – I do not know how it falls out, but open to consideration is that whether examination of the decisions made about reserved papers is unnecessary because, even if resolved wholly in favour of the Wang and Mead interests, it would nonetheless follow that the only available result is to declare the election wholly void.
MR DONAGHUE: I understand that concept or that line of reasoning.
HIS HONOUR: Whether it is right or wrong, whether it really is open, is something on which I have to hear a lot of other argument. But that is why I say, I think, if your interests wish to make a submission in answer to the question I have put, now is your chance to do it.
MR DONAGHUE: I appreciate that.
HIS HONOUR: By all means make no submissions.
MR DONAGHUE: The only answer that I give to your Honour, and I accept this does not answer everything, is that because we say your Honour should admit the records, one does not need to reach that question. If we are wrong about that then I do not make any submission on the question your Honour asks.
HIS HONOUR: Yes.
MR DONAGHUE: Can I move then to what we have identified in our oral outline as…..and introduce it in this way. We understand, particularly from the AEC’s reply submissions – and if your Honour has them readily to hand it might be useful to show your Honour how the AEC has put this. We are referring in particular to page 1, paragraph 3 of their reply and to paragraph 11, footnote 6, on page 3, but if your Honour looks at paragraph 3 first. The AEC there accept:
that various sections of the Act use the word “vote” and its cognates in the sense of an elector presenting at a polling booth and marking the ballot paper.
Likewise, in footnote 7 they indicate that it is not suggested that the meaning of “prevented from voting” in 365 should be translated into other sections. So we understand the starting point to be, at least as the AEC sees it, that while they accept that we could make quite persuasive submissions to your Honour that “vote” in the Act normally means mark a ballot paper, fold it over and put it in the box, in 365 it means something different. The question that then arises, we submit, is whether ‑ ‑ ‑
HIS HONOUR: Is that any more complex than saying that asking whether a voter has voted is a question different from asking whether an officer has prevented a voter from voting? One invites attention to what the voter did, the elector did. The other invites attention to what the officer did and the consequences of that.
MR DONAGHUE: But often those concepts will overlap.
HIS HONOUR: The probability of overlap is one which I think is inevitable if “prevented from voting” extends as far as the Commission would have it extend. It encompasses the case of the elector presenting at the polling booth and the electoral official saying, “No, you may not”.
MR DONAGHUE: “No, you may not” to some extent – and I will develop this shortly in relation to Part A – but some kinds of errors, like refusing to give you the ballot paper, fall within their concept. Other kinds of errors, like refusing to initial the ballot paper as required, meaning that the vote is informal from the outset inevitably, is not, on the AEC’s formulation, prevented from voting because the paper can be looked at by a scrutineer even though it is worthless and worthless because of an official error. That is one of the reasons we say their conception does not hold together, because some things that should be in are not in.
HIS HONOUR: You will tell me why there is some incongruity there. It is not instantly apparent to me.
MR DONAGHUE: Rather than take it out of order, if I could park that question.
HIS HONOUR: Yes.
MR DONAGHUE: I do not want this to become a war of competing presumptions. I think Mr Bell gave your Honour a presumption that the Act conforms to the common law. There is another presumption that inclined in the Official Secretary to the Governor‑General. Four members of the Court last year referred to the presumption that cognate expressions in a statute should be given the same meaning unless the context otherwise requires. We accept that it is possible to persuade your Honour that the concepts – and “vote” and “voting”, we submit, are cognate expressions as the AEC treats them in its reply ‑ ‑ ‑
HIS HONOUR: The difficulty is that we have an Act that has grown like Topsy over the years, so presumptions are really not going to carry me all that far, are they?
MR DONAGHUE: The question, we submit, is: has your Honour been persuaded ultimately that even though we can point to – and I will point your Honour to some of them later – many provisions that conceive of the act of voting as being over after you put the ballot in the box and the ballot station closes, does “prevented from voting” mean something more?
Really, we think that there is at the end of the day only one argument that the AEC advances to support that contention and it is the argument that, by 1922 when these words were enacted, they had a settled meaning based on Woodward v Sarsons followed in this Court and that that received meaning should therefore be taken to have been adopted and incorporated into the Act.
Because we think that this whole limb of the case turns ultimately on that proposition I want to spend some time focusing on it because we submit that the AEC has submissions about Woodward v Sarsons that are fundamentally wrong and that therefore the fact that this Court followed it or approved it in some of its early judgments does not advance the AEC’s position because the case does not stand for the proposition that they suggest.
Can I take that undertaking in four steps? I will take your Honour first to Woodward v Sarsons, then to Bridge v Bowen then to Kean v Kerby and then to the second reading speech. Starting with Woodward, the first thing to note about this case, your Honour, and you will see it at page 741, right at the start of Lord Coleridge’s judgment speech, at about point 7 on the page, is that the kind of error that we were talking about that the court was concerned with was an error whereby electors have applied for a ballot paper at a particular polling station and the presiding officer had marked on the face of the ballot paper given to them the number of each voter appearing on the roll. He did it for every paper he handed out. The number of ballots was 294, of which 234 were in favour of the petitioner and 60 in favour of the respondent. So the problem was you could identify all the voters because they were identified by number.
The court held ultimately that that error meant that all of those votes – and you will see this at the bottom of 748 – were void and ought not to be counted. So it was an error that had the effect of rendering all of those votes informal. The question with which the case is concerned is did that provide a basis for declaring the election void in circumstances where – I am sorry to jump around, your Honour, back on 742, in the middle of the page – you can see that the margin by which the election had been declared was a margin of 190 votes. The result had been declared by 190 votes. The votes affected by the error that led to informality had a net effect of 174. So the net effect of those informal votes would not have changed the result. But if you totalled the number of votes that were affected by the informal result it would have exceeded the margin by which the case was decided.
Ultimately, as your Honour will know, in this case the election was not declared void, even though there had been an error affecting a bigger number of votes than the margin, because the court looked at the votes that had been correctly ruled to be informal.
Now, there is a discussion and I will not read out passages to your Honour, and particularly passages others have read to you, but the sequence of the judgments or the logic of the judgments started in the middle of page 743 with an identification of the questions, the first of which is “what is the true statement of the rule under which an election may be avoided by the common law of parliament?” That, we submit, is the issue with which most of the passages that are quoted are concerned. That is the issue that was being approved in the statements in the early judgments of this Court. It has nothing whatsoever to do with the admissibility of the records of how particular voters voted. That was not what the court was looking at. It was looking at when you can declare the whole election void.
The true statement of the rule, answering the first question, has two parts, the first of which is the relevant part – this is about point 7 – which is the election is to be declared void ‘if it was so conducted that the tribunal which is asked to void it is satisfied, as a matter of fact” that there was no real electing at all. In explaining what that means – “there is no real electing” – that is what the balance of page 743 is concerned with. From about seven lines up from the bottom Lord Coleridge gives a number – I think there are five in total – of different examples of kinds of things that will mean that there is no real electing at all, each separated by the words “or by”:
This would certainly be so, if a majority of the electors were proved to have been prevented from recording their votes effectively according to their own preference, by general corruption or general intimidation, or by being prevented from voting –
So that is one of the few usages of that expression simpliciter in this case –
by want of the machinery necessary for so voting –
So that is physically prevented from voting –
as, by polling stations being demolished, or not opened, or by –
new concept –
other of the means of voting according to law not being supplied or supplied with such errors as to render the voting by means of them void, or by fraudulent counting of votes . . . or by other such other acts or mishaps.
The court is not there equating every kind of error that can make the election void under the first limb as being prevented from voting. It is giving a number of different examples, one of which is a situation where a person is prevented from voting.
What the court then does with that, at the top of 744, is say that where those things have happened, and a majority – not an individual, as Mr Thomson said – has been prevented, or there are reasonable grounds to believe that a majority may have been prevented, the election can be voided:
But, if the tribunal should only be satisfied that certain of such mishaps had occurred, but should not be satisfied either that a majority had been, or that there was reasonable ground to believe that a majority might have been, prevented from electing the candidate –
We submit “prevented from electing” is the concept that is being used to refer to all of the things, consistently with the way the whole first limb is framed. It is framed as is there no real electing at all? There are a variety of ways there can be no real electing, one of which is prevented from voting.
Now, when one comes to the factual application of that test, which is the second half of 745, their Honours then say the next question is how this applies. Can it be said on the facts that a majority of the electors, or that there are reasonable grounds to believe that a majority, may have been – again, we are focusing on the group – “prevented from recording their votes with effect”?
That phrase “prevented from recording their votes with effect” or “prevented from voting with effect” is important because, as the court next acknowledges, this is not a case where people were prevented from voting. There is no evidence that any elector was prevented from recording his vote or induced not to record it. All who went to vote did vote. Then three lines up from the bottom:
The result is, that all the electors who desired to vote did vote.
Their Honours were distinguishing between the case where you did vote and where your vote counted with effect. Over the top on 746 their Honours make a point of saying this is therefore a case - because people had actually voted, in fact:
when the objections to the particular votes have been determined, the effect of the mistakes on the result of the election will be exactly known. If so, there is no room for speculation or doubt as to whether a majority may or may not have been prevented from voting with effect.
Then a few lines down there is again a reference to the majority being prevented from voting with effect. Now, if I could make a couple of points about that, your Honour. One, our friends invite your Honour to find that because of this case and its approval Parliament used the words “prevented from voting” to mean prevented from voting with effect, when the judgment itself plainly distinguishes between those two concepts. If Parliament had meant to be giving effect to this decision, it could only sensibly have enacted the wider phrase, if that is what it was intending to achieve.
HIS HONOUR: Which wider phrase?
MR DONAGHUE: Prevented from voting with effect. Could easily have used that phrase in the proviso, if that was what was intended. So that is the first point. The second point, your Honour, is that if the proviso operates in a way that the AEC suggests, so that prevented from voting means prevented from voting with effect, it would follow that the Court of Disputed Returns cannot look at the records of the informal votes, and so Parliament would have been ‑ ‑ ‑
HIS HONOUR: Why?
MR DONAGHUE: Well, it depends on the various meanings, but because an official error would have had the effect that the vote did not count in the count that matters.
HIS HONOUR: No. An official error would not have led to the vote not being considered in a determinative scrutiny. That, I think, is the meaning with which you need to grapple, considered in the determinative scrutiny.
MR DONAGHUE: Your Honour, I have reversed my (a) and (b). In that part we respectfully submit the AEC has moved between the two propositions. One is the proposition your Honour just put to me, sometimes they put the wider proposition, so ‑ ‑ ‑
HIS HONOUR: This is not the first time in which an advocate has a belt, a pair of braces and a piece of string around the trousers as well.
MR DONAGHUE: I say that, your Honour, so that if I – I think I have two targets. If I only have one, it may be the target that your Honour just put to me but we did not want to miss what turned out to be the key argument against us. But even if one confines prevented from voting to scrutinised in the count that mattered, nevertheless, in this case Woodward v Sarsons does not provide any support for the proposition that that is where a line is to be drawn for someone who has been prevented from voting, because if prevented from voting means – what Woodward v Sarsons calls “prevented from voting with effect” it goes far wider than stopping at an error that prevents the paper from being scrutinised. It includes all the things that Lord Coleridge identified in the passage that I earlier read.
So, insofar as the proviso is said to be a response or an enactment of this case, it completely missed its target and that, we submit, is a good reason to doubt the submission that that was what Parliament was intending, particularly when, as your Honour will see when we get to Kean v Kerby, there is a direct correlation between Kean v Kerby what the proviso enacts. The final thing to note about this, and Mr Thomson took your Honour to it so I will not dwell on it, but at page 750 it is clear that the reasoning that the Court engaged in, and it is particularly from about the middle of page 750, the Court says:
as no voter was prevented from voting, it follows that the errors of the presiding officers at the polling stations . . . did not affect the result of the election, and did not prevent the majority of electors from effectively exercising their votes in favour of the candidate –
That conclusion only makes sense if the Court of Disputed Returns is properly in a position where in circumstances where people have actually cast their ballot the Court can look at the vote that was cast, albeit informally, and count it, so as to determine whether or not the error that was made had any consequences on the – not on the declared result, but on the actual real answer because here the errors comfortably exceeded the margin and yet the Court felt able to conclude that counting the informal votes, or the votes rendered informal by official error, it knew what the true will of the electors was.
So far from being contrary to our case, this case is an early and authoritative illustration of the very approach by a Court of Disputed Returns to the kind of thing that we are asking your Honour to do in this case, which is to take a – looking at the evidence that is before the Court, to ask yourself the question, “Do I know what these voters actually wanted, what they voted for?” and if you do, then there is not any need to have a further election. The Court should give effect to the will of the voters as expressed in the records, whether or not the records are of a kind that could formally have been counted by the Electoral Commission because here, of course, as this case illustrates, informal votes are able to be taken into account as determinative by the Court of Disputed Returns. Can I deal much more quickly with Bridge v Bowen?
HIS HONOUR: Just before you pass to that, can I take you to re Wood 167 CLR particularly at 166 at point 8 or 9 of the page, “But in the present case, there is no blemish”, do you have the passage?
MR DONAGHUE: Yes, I do.
HIS HONOUR: Is it possible on the state of available material, in this case 1,370 missing ballot papers, records taken at original and fresh scrutiny, to say that the valid choice of the electors can lawfully be ascertained by re‑counting if re‑counting is to be understood – arguably it must be – as re‑counting in accordance with the Act?
MR DONAGHUE: It is difficult to answer that in a short sentence because it is the whole of the third part of my submissions.
HIS HONOUR: Then come to it then.
MR DONAGHUE: If I might. I am not trying to dodge that question because we submit that re Wood is strongly supportive of the submission that we make and I am going to take your Honour to it and explain why, but without wanting to be non‑responsive I am going to be non‑responsive temporarily.
HIS HONOUR: I look forward to your answer tomorrow morning.
MR DONAGHUE: I can give your Honour the postage stamp view if ‑ ‑ ‑
HIS HONOUR: I am teasing you, Mr Donaghue, get on with it.
MR DONAGHUE: Your Honour, Bridge v Bowen 21 CLR 582, this case, as your Honour knows, has nothing to do with people being prevented from voting. The problem here was too many voters, not not enough, in that the personators who voted in a number that exceeded the margin for the election. So the case is really only relevant insofar as it involves this Court in scrutinising or explaining Woodward v Sarsons, something of an irony in a way, your Honour, if your Honour looks at the opening of Justice Isaacs’ judgment on 612 at about point 6 on the page:
The case resolves itself into two branches. One is as to the meaning of some very plain words . . . which taken in their ordinary sense are fatal to the respondent. The other branch is as to whether an unnatural meaning has been so clearly and persistently placed upon them –
should be given effect in the statute. We submit that this case is being used by the AEC to put an unnatural meaning on plain words and we say that because the words “prevented from voting” are being given a much wider meaning than they bear as a matter of ordinary language and that the concept of voting in the Act generally would support ‑ ‑ ‑
HIS HONOUR: Well, you will come to ordinary language ideas at some point in your argument.
MR DONAGHUE: I will. On page 616, Justice Isaacs commences his discussion of Woodward v Sarsons. As the Solicitor‑General said this morning, it refers to its immense importance. There is then a series of quotes from the case on the pages that follow, including the references to the first limb, no real electing at all, but it is at page 618 that the ‑ ‑ ‑
HIS HONOUR: Well, before you hasten over 616, 617, an example given of no real electing at all is, is it not, the “fraudulent counting, false official declarations” example, and those are examples in which voters have lodged ballot papers, is that right?
MR DONAGHUE: If a voter has lodged a ballot paper that is invalid because of official error ‑ ‑ ‑
HIS HONOUR: No, no, the example given at line 6 on 617, which is a quote from Woodward v Sarsons, “fraudulent counting, false official declarations”, two examples given. Both of those examples are cases in which electors have submitted ballot papers which are not given effect, is that right?
MR DONAGHUE: Yes.
HIS HONOUR: And they are examples given of cases in which there is, in His Lordship’s words, “no real election at all”, is that right?
MR DONAGHUE: Yes, that is so.
HIS HONOUR: And what then do you say about the notion of prevented from voting and possible connection with the notion, not used in the Federal Act, of no real election at all?
MR DONAGHUE: We say this, your Honour, that ‑ ‑ ‑
HIS HONOUR: That prevented from voting is a subclass of cases where there may have been no real electing at all.
MR DONAGHUE: Precisely.
HIS HONOUR: Why should you adopt such a construction, having regard to the high constitutional purpose that section 7 evidences? Why should you shell out a subclass of no real electing at all?
MR DONAGHUE: But the question, your Honour, we submit, is why is one shelling it out? So we are not shelling it out for the purpose of confining the powers of the Court of Disputed Returns under section 360. Indeed, we submit that one of the powers under 360 is when you should declare the election void and Woodward v Sarsons informs that question in all of its breadth. I am not shelling out any part of prevented from voting with effect for that purpose. But the proviso is not talking about when one should set aside the election. It is talking about when evidence of the intention of a voter is inadmissible, and because the question is different the answer is different. Because once a ballot paper actually exists, the Court can look at it, as the Court did in Woodward v Sarsons, and decide what significance to accord to it in choosing the remedy to be made.
HIS HONOUR: We are concerned with a case where the Court cannot look at the ballot papers.
MR DONAGHUE: But we are only concerned with it in the case of loss. This case in a way is factually unusual but should not distort the meaning of the phrase in the Act because on most occasions when a ballot has been passed and there has been preventing from voting in some way, there has been an error in counting, there has been polling booth errors, all of those kinds of situations the Court of Disputed Returns would be able to look at the ballot.
In the case where you are not actually given a ballot or you are not allowed into the polling station, which is the Kean v Kerby Case, then it cannot look at the ballot and what Parliament wanted to do in response to Kean v Kerby is to stop a procession of voters through the witness box saying “I was going to vote for Jim Blogs”. So that is the target of it, so there is not any need to – indeed, quite the contrary ‑ we submit the wider prevented from voting is read in the proviso, the heart of it is for the Court of Disputed Returns to protect the franchise and give genuine effect to voters because your Honour has to shut your eyes.
If prevented from voting in 365 is wide, the Court will more often be confronted with the case where it says, “I have an error that affected 100, 200 ballots and I have no idea what was in those ballots” when if, even though in most cases the ballots would be there and all the Court would have to do is say, “Why don’t I have a look and see if this mattered. If it mattered then I can take it into account in disclosing of the petition. If it does not matter I won’t”.
HIS HONOUR: The point you need to grapple with is whether “prevented from voting” means prevented where the ballot papers are not considered in the determinative scrutiny, regardless of outcome, but the case of loss with which I must deal is the archetypical case where no ballot papers, they have been lost, you do not know what is in the ballot paper but for other records, what does “prevented from voting” mean in a section which is concerned with official error, not candidate misconduct but official error, and where the purpose of the proviso seems to be that the consequence of official error is to be determined by reference to numbers, numbers of votes which have been, using the term intendedly neutrally taken out of the process. If the numbers are large enough to reach the conclusion that the result of the election is affected then what do you do?
MR DONAGHUE: I realise I need to grapple with it, your Honour, and I was in two minds about whether to reverse my (a) and (b) or not and I reversed them because ‑ ‑ ‑
HIS HONOUR: You have only 10 minutes in which to decide before we are committed to doing it tomorrow morning.
MR DONAGHUE: But the reason, your Honour, that I am doing it this way, and it does mean that I keep having to defer your Honour’s questions, but the reason is that as we understand where the AEC ultimately rests, they are inviting your Honour, indeed the submission went so high this morning as to say your Honour was bound to find that “prevented from voting” had the meaning that arises from these cases ‑ ‑ ‑
HIS HONOUR: Yes.
MR DONAGHUE: ‑ ‑ ‑ and that is not the case because these cases – insofar as they talk about the meaning of “prevented from voting” at all ‑ and if your Honour still has Bridge v Bowen, if your Honour looks at the top of 618 you will see this concept being returned to, it uses the phrase to mean physically casting the ballot paper. So if your Honour looks at the first full paragraph on 618, quoting from a part of Woodward I took your Honour to, reference to “prevented from voting with effect” and then points out:
“There is no evidence, as it seems to us, that any elector was prevented from recording his vote, or induced not to record it . . . The result is, that all the electors who desired to vote did vote.”
Then his Honour adds –
So much for actual voting.
So there he is talking about “prevented from voting” and he equates it to actual voting and then moves on, correctly, to the wider concept of “voting with effect”, which is what he is talking about in the balance of that phrase.
HIS HONOUR: But in terms of prevention, see the last line of that paragraph.
MR DONAGHUE: In terms of prevention but the last line of that paragraph is referable to the sentences that follow. The prevention is a prevention from voting with effect by reason of official error.
HIS HONOUR: Yes.
MR DONAGHUE: That is not the concept that is enacted. The concept that is enacted recognises – well, perhaps that is conclusory. The judgment that is said to compel your Honour to the conclusion as to a meaning of section 365 is a judgment that expressly distinguishes between preventing you from actually voting and preventing you from voting with effect. It does not draw any ‑ ‑ ‑
HIS HONOUR: Both being species of prevention, are they not?
MR DONAGHUE: Well, they are both examples of things that affect the result of the election. They are both relevant to prevented from electing but they are not relevant to prevented from voting, and if they were relevant to preventing from voting they would not support drawing the line at the point which your Honour has been putting to me of a scrutiny because once you are prevented from voting you are equally prevented from voting with effect by an official error that renders your ballot invalid from the start, even though it is looked at during the scrutiny that counts.
HIS HONOUR: Why?
MR DONAGHUE: Because your vote has no effect. Your Honour, the Act says if the person who gives you the ballot paper does not initial it as required, the vote is informal. So it is no comfort to me as an elector that some official within the Electoral Commission looks at my paper and says this is invalid because it is not initialled by the official. My vote is not counted and the fact that the official looks at it is of no moment as a matter of substance. It is only relevant because the AEC is inviting your Honour to draw a line that catches this case but that does not catch other situations that fall within the phrase.
Our point, your Honour, is simply that if this judgment – Woodward v Sarsons as explained by Justice Isaacs in Bridge – is the key then the concept cannot be limited to votes that are scrutinised because there are so many other reasons that a vote would not be given effect when the judgment just does not support a narrowing of the line in that way. Your Honour, could I deal with Kean before we break?
HIS HONOUR: With a view to demonstrating, as I understand it, that you say the 1922 Act is reversing Kean ‑ ‑ ‑
MR DONAGHUE: Yes, and in Kean, Justice Isaacs uses the phrase “prevented from voting”. He is not talking about prevented from voting with effect. He is talking about prevented from voting. He is dealing with a case where people were physically prevented from actually voting, not some wider concept and he felt compelled by the scheme of the Act at that time to allow a procession of witnesses through the witness box to give evidence about how they would have voted and Parliament immediately says not on your life is that how the Act is going to be administrated and enacts words based expressly on the situation in Kean using the language that Justice Isaacs used. So if your Honour is ‑ ‑ ‑
HIS HONOUR: So his Honour determined a case in which there had been prevention from submitting ballot papers.
MR DONAGHUE: Yes.
HIS HONOUR: Decided that there had been admitted evidence, yes.
MR DONAGHUE: Yes.
HIS HONOUR: Why does that mark the metes and bounds of what prevention is in light of what is earlier said in the Court?
MR DONAGHUE: Because if the intention – well, a few answers to that, your Honour: one, that there is no suggestion in the case or in the parliamentary records of an intent to stop the Court looking at ballot papers – the Court of Disputed Returns looking at ballot papers in the way that was done in Woodward v Sarsons to deal with other errors.
If it was intended to mean prevented from voting with effect, then that was a radical shift in the powers of the Court of Disputed Returns, whereas if “prevented from voting” has the narrow meaning we suggest, it stops the very thing Parliament was concerned about, the procession through the witness box, but it does not otherwise cut across the powers of the Court of Disputed Returns.
We submit that the case, and the second reading speech shows this, there is lengthy quotations in both the second reading speech and the parliamentary debates from the relevant page of Kean v Kerby. It was clearly front and centre in the minds of the Parliament. There is no reference to Woodward or Bridge or any of the other cases. All of those cases use a different phrase. There is, in that combination of circumstances, no reason to assume that Parliament meant the wider phrase and deliberately chose a different phrase to the phrase that was there used.
I will not dwell at length on this, your Honour, but if you could turn to page 457 of Kean, and this is after a discussion of - on pages 455 to 456, his Honour goes through voter by voter and explains the nature of the error which in six of the seven cases are a refusal to produce a ballot paper to the person at all and in one case is the production of a ballot paper for a different division so that the wrong candidates are on it. Having looked at all those facts, on page 457 at about point 4, his Honour says:
It appears then, so far, that seven persons duly qualified to vote and properly seeking to vote were, by official error, prevented from voting.
That is the phrase that is picked up in the debates in Parliament and that, we submit, is the obvious example of the situation.
Now, I am not putting, your Honour, that there is not a wider category of error that can invalidate an election. I fully accept that there is. What I am putting is that the proviso does not stop the Court looking at evidence that goes to the effect of that error because usually the evidence will be there in the ballot, in the form of the ballot. So that is the only proposition that I am here advancing – that Parliament did not intend to stop the Court looking at the ballots in order to overcome official error or in order to assess the impact of official error. His Honour, at about point 7 on the page, refers to the electors having “not actually voted”. In our submission, at 458, his Honour refers to again:
The error of refusing a vote to a qualified elector –
The whole discussion ‑ ‑ ‑
HIS HONOUR: Centred upon the facts of the case.
MR DONAGHUE: Yes, your Honour, but so was the legislative response to it. There is no evidence that the legislative response to it was intended to go beyond the facts of the case and the decision that Justice Isaacs made. The Commission has not pointed your Honour to anything that would suggest that that was what was intended.
HIS HONOUR: I thought there was a deal of reference in the debates to bringing Australian law into line with the English law.
MR DONAGHUE: In respect of one passage in his Honour’s judgment in Kean v Kerby, not going any earlier than that. English law did not have a
provision that stops a Court of Disputed Returns looking at the votes, as happened in Woodward v Sarsons. That is the problem for our friends, that if they drive back to that earlier line of authority into English law, they are then seeking to have Parliament generate a result that does not accord either with Australian historical practice before or since, or with the English practice at the time.
The final point I would make in the time, your Honour, is that on 459, his Honour makes, with respect, some important points about the guiding principles in this area. In the middle of the page, it says:
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.
At the bottom of the page, having talked about a person being refused a ballot paper altogether, he again makes the point that –
The ballot, being a means of protecting the franchise, must not be made an instrument to defeat it.
We submit that in a case where the ballot was cast, counted and counted again, to treat the fact that the paper itself has been lost as meaning that an election result should be completely voided is to do the very thing that Justice Isaacs is talking about. The ballot paper is being allowed to defeat the franchise because there is not, in our submission, any reason to consider the AEC officials who counted these papers and reached the same ultimate conclusion on them did anything other than accurately reflect the will of those voters. To send the entirety of the State of Western Australia back to a poll because of an assumption that they did otherwise is, in our submission, to defeat the franchise rather than to give effect to it. Your Honour, if that would be a convenient – is that a convenient time?
HIS HONOUR: Yes, how are you travelling for time, Mr Donaghue?
MR DONAGHUE: I am travelling a little slower than I had hoped, your Honour. I will be probably close to an hour, I think, maybe a little less.
HIS HONOUR: Well, see how you go, but that will make a marked difference in the amount of time, if you were to go so long, but let us see how you go. May I ask you, Mr Barlow - I understood that the times that had been agreed were not acceded to by you - how long do you expect to take in your submissions?
MR BARLOW: Your Honour, I would, I think, comfortably fit within 90 minutes, given the submissions being made by our learned friend, Mr Donaghue. I should say it was not just our client who did not agree with those. There were three parties that did not agree with the times, your Honour. I am sure we could comfortably finish tomorrow ‑ ‑ ‑
HIS HONOUR: Well, I expect that unless I am told to the contrary, tomorrow will see the end of argument, and I expect counsel to co‑operate and arrive at a result where each has adequate time to present his or her submissions.
MR BARLOW: We believe that will happen, your Honour.
MR DONAGHUE: We do, your Honour. I have had some discussions with my friends and I am confident that we will achieve that. We will talk again after court, and I will cut my cloth accordingly if there is a problem.
HIS HONOUR: Yes, of course, every party must have due time to present its case, but it would be unfortunate if submissions expanded to fill the time available. Sorry, yes?
MR LANG: Your Honour, if I could indicate that Mr Donaghue has said more eloquently than I could many of the things I had intended to say in my oral argument. I doubt that I will be longer than half an hour. I will mainly be dealing with the differences between Mr Mead’s petition and Mr Wang’s petition.
HIS HONOUR: What you are telling me is that all the minatory threats I am uttering are entirely unnecessary. Is that right?
MR LANG: I just wanted to reassure your Honour that there is hope that we will indeed finish on time without those threats needing to be acted on.
HIS HONOUR: No, I am working on the assumption that the case will conclude tomorrow, until I am told to the contrary.
MR LANG: Indeed.
HIS HONOUR: Very well, 10.15 tomorrow.
AT 4.20 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 30 JANUARY 2014
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