In Australian Electoral Commission v Johnston  HCA 5, the High Court, sitting as the Court of Disputed Returns, answered questions of law in a way which led to the election of WA Senators to the Commonwealth Parliament being declared void.
In last year’s federal election, the Senate race in WA was very close at a crucial point in the count. On that basis a re-count was ordered. In conducting the re-count, it emerged that 1,370 ballot papers had been lost (although the results for those ballots had been recorded in earlier counts). The re-count went ahead and different candidates were declared elected than those that had won on the first count.
Various petitioners, including the Australian Electoral Commission, petitioned the High Court sitting as the Court of Disputed Returns seeking either that the election be declared void, or, in the case of some petitions, that certain unsuccessful candidates be declared duly elected.
The Commonwealth Electoral Act 1918 (Cth) provided for the powers of the Court, including the circumstances in which it could declare an election void.
Hayne J tried several questions of law which were important to the petitions. The most important questions related to the following matters:
- whether the electors who cast the missing ballots were “prevented from voting” for the purposes of s 365 of the Act. That section made inadmissible in the proceeding evidence of how someone would have voted if they had been “prevented from voting” by reason of an official’s mistake (for the purpose of the Court’s determining whether an official’s mistake affected the result of the election).
- whether records of the missing ballots in relation to previous counts could be used in determining the result.
The Court held that the electors who had cast the lost ballot papers had been “prevented from voting” in the necessary sense. In doing so, it rejected the submission of some parties that “prevented from voting” meant merely “prevented from completing a ballot paper and depositing it in the ballot box”.
It followed that evidence of how those voters intended to vote (through records of earlier counts) was not admissible to determined whether the result of the election was likely to have been affected; however, the closeness of the count meant that, in any event, it was likely that the result of the election had been affected by the loss (and, therefore, non-counting) of the missing ballots.
The Court held further that it could not construct a preferred result of the election, and thereby declare others duly elected, by combining the evidence of earlier counts with the re-count.
Thus, it considered that the only relief appropriate was for the election to be declared void.