Australian Electoral Commission v Johnston [2014] HCA 5

HIGH COURT OF AUSTRALIA

HAYNE J

Matter No C17/2013

THE AUSTRALIAN ELECTORAL COMMISSION PETITIONER

AND

DAVID JOHNSTON & ORS RESPONDENTS

Matter No P55/2013

ZHENYA WANG PETITIONER

AND

DAVID JOHNSTON & ORS RESPONDENTS

Matter No P56/2013

SIMON MEAD PETITIONER

AND

DAVID JOHNSTON & ORS RESPONDENTS

Australian Electoral Commission v Johnston Wang v Johnston Mead v Johnston [2014] HCA 5 18 February 2014 C17/2013, P55/2013 & P56/2013

ORDER

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

1. Did the loss of the 1,370 ballot papers between the fresh scrutiny and the re‑count mean that the 1,370 electors who submitted those ballot papers in the poll were "prevented from voting" in the Election for the purposes of s 365 of the Commonwealth Electoral Act 1918 (Cth) ("Act")?

Answer: Yes.

2. Is the Court of Disputed Returns precluded by s 365 or otherwise from admitting the records of the fresh scrutiny, or original scrutiny, that bear on the 1,370 missing ballot papers as evidence of the way in which each of those voters intended to vote, or voted, in the Election for the purposes of each of the petitions filed in the matter, including in so far as those petitions seek relief under ss 360 and 362?

Answer: The Court of Disputed Returns is precluded by s 365 from admitting the records of the fresh scrutiny and the original scrutiny that bear on the 1,370 missing ballot papers for the purpose identified in the proviso to s 365, namely, determining whether the loss of the ballot papers did or did not affect the result of the election. Further, the records of the original scrutiny and the fresh scrutiny that bear on those missing ballot papers are not admissible for the purpose of the Court determining that it should declare any candidate duly elected who was not returned as elected.