Australian Electoral Commission v Johnston [2014] HCA 5

As was previously reported by TimeBase, The High Court in its capacity as the "Court of Disputed Returns" has been asked by the Australian Electoral Commission (AEC) to find the Western Australian (WA) Senate poll at the last Federal Election was void so that the AEC can rerun the election.

They have today delivered their decision in the case of Australian Electoral Commission v Johnston [2014] HCA 5. 

During the conduct of the recount in the WA Senate Federal election, it emerged that 1,370 ballot papers had been lost between the earlier counts and the recount.  When the available ballot papers were recounted, the candidate who had been excluded in the earlier counts was instead 12 votes ahead at the determinative point.  This meant that Mr Dropulich and Senator Ludlam were to be elected to the fifth and sixth Senate places.  The Australian Electoral Officer for Western Australia (the AEO) declared the result of the election on that basis.

Basis of the High Court Appeal

The Australian Electoral Commission, Mr Wang and a person qualified to vote at the election, Mr Simon Mead, filed petitions in the Court of Disputed Returns disputing the result of the election.  Each petitioner asserted that the loss of the ballot papers contravened the Commonwealth Electoral Act 1918 (Cth).  Mr Wang and Mr Mead also asserted that certain decisions made by the AEO in relation to ballot papers reserved during the recount for his consideration were wrong.  The Court tried three questions of law.  Those questions required the Court to consider whether it could decide who should have been elected and whether it could come to that conclusion by looking at records made in earlier counts about the lost ballot papers.

The High Court Verdict

The Court held that it was precluded under the Act from looking at records of earlier counts of the lost ballot papers.  It found that, without regard to the voting intentions recorded in those ballot papers, the conclusion that the loss probably affected the result of the election was inevitable.  The number of ballot papers lost far exceeded the margin between the candidates at the determinative point in the count.  And the recount yielded different tallies of votes and different decisions about rejection or acceptance of ballot papers from those reached in the earlier counts, in numbers which could not be dismissed as irrelevant or trivial. 

The Court rejected the argument of Mr Wang, Mr Mead and some other parties that it could determine who should have been elected by combining the results of the recount with the records made in earlier counts about the lost ballot papers.  That method of ascertaining the result of the polling is one for which the Act does not provide.  The Court concluded that it is therefore unnecessary for it to consider whether certain ballot papers had been wrongly accepted or rejected by the AEO in the recount.

The Court will hold a further hearing on Thursday, 20 February 2014 to determine the final disposition of the petitions.

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