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

These three cases, heard together, concerned challenges to the validity of the election of certain members of the House of Representatives for the Division of Herbert in Queensland. The Australian Electoral Commission (AEC) and two unsuccessful candidates, Mr. Wang and Mr. Mead, sought declarations that the election of Ms. Johnston and other respondents was void. The core of the dispute revolved around allegations of improper conduct by the AEC in the conduct of the election, specifically concerning the distribution of ballot papers and the counting of votes.

The central legal issue before Hayne J was whether the conduct of the AEC in relation to the distribution of ballot papers and the counting of votes amounted to a contravention of the *Commonwealth Electoral Act 1918* (Cth) (the Act) that was so serious as to render the election void. The applicants contended that the AEC's actions constituted a failure to comply with the mandatory provisions of the Act, thereby vitiating the election process.

Hayne J considered the provisions of the Act relating to the conduct of elections and the circumstances under which an election may be declared void. His Honour applied the principle that an election will only be declared void if there has been a substantial failure to comply with the Act, and that failure has affected, or is likely to have affected, the result of the election. His Honour found that while there may have been some irregularities in the AEC's conduct, these irregularities did not amount to a contravention of the Act that was of such a character as to invalidate the election. The evidence did not establish that the outcome of the election was affected by the alleged improprieties.

Consequently, the applications for declarations that the election was void were dismissed.