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High Court of Australia Transcripts |
Last Updated: 31 January 2014
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 THURSDAY, 30 JANUARY 2014, AT 10.15 AM
(Continued from 29/1/14)
Copyright in the High Court of Australia
____________________
HIS HONOUR: Mr Donaghue.
MR DONAGHUE: Your Honour, we have provided to the Court and distributed to the parties a one-page document that summarises the submissions that I made yesterday in relation to Woodward. I am not intending to take your Honour back to any of that, but that is just, in point form or dot point form, the essence of the submission we make on that case.
HIS HONOUR: Thank you.
MR DONAGHUE: This morning if I can start by wrapping up our submissions on question 1 and then move to the topics identified as C and D in the oral outline by making good on the promise I made yesterday to address some submissions to the meaning of the phrase “prevented from voting” and in particular why we submit that your Honour should prefer the meaning that the person has physically taken the steps up to the end of 233 in the Act, that is marking the paper and putting it in the box as opposed to the paper being available to be considered in the scrutiny that counts.
The first point we make, your Honour, about the construction of that phrase “prevented from voting” in 365 is that it is not a test for invalidity of an election and that an illegal practice, including a breach of the Act concerning the conduct of the scrutiny, may lead to the voiding of an election whether or not that error is an error that prevents any person from voting, so that there is no necessary correlation between errors that will void an election and prevention from voting.
The only work that the phrase “prevented from voting” does is that it is one criteria which where it applies together with other criteria may restrict the evidence that is available to the Court of Disputed Returns in deciding what order, if any, to make under section 360. It is an evidential restriction that operates at least in the clear case where a person never casts a ballot at all and everybody, I think, agrees with that. It stops a person in that situation from giving evidence as to how they would have voted and that is the fact situation that, again I think, everybody agrees led to the proviso being enacted.
The question for your Honour is does it go beyond that fact situation to other kinds of errors. We submit that looking at the question from the perspective of why it might be desirable for Parliament and why Parliament might have wished to draw the line restricting evidence a logical place to draw the line is at the place where a ballot paper is cast because at any subsequent point the ballot paper will ordinarily be available to inform the court in the exercise of its powers, the only case where that will not be so being that situation that has made its way before the Court here where the papers are lost or destroyed.
Your Honour, in writing we have developed at some length why we submit that the Court should favour the meaning of a physical casting of a vote and this morning I want to develop that submission only in two ways, first, by making some short remarks about prior authorities and second, by making some short remarks about the usage of the word “vote” and its cognates in the Act.
With respect to authority, if I can start with authorities in this Court, Mr Bell took your Honour yesterday to what he described as some “morsels” in the authorities concerning the meaning of prevention from voting. There are two morsels that we think should be added and I probably cannot put it much higher than that, but rather than take your Honour to the authorities, if I could ask your Honour to look at paragraph 14 of our written submissions. They are both observations of her Honour Justice Gaudron, although in one case the remarks were in a part of the reasons with which we understand Chief Justice Gleeson and Justice Gummow and your Honour to have concurred. Without reading it out, in both cases her Honour characterised 365 as concerned with polling clerk errors or immaterial errors, pre-election processes concerning the polls. So that is certainly how her Honour viewed 365.
HIS HONOUR: In a case where that was the allegation.
MR DONAGHUE: Yes, your Honour, but her Honour’s remarks were directed at characterising the kind of thing which the section was concerned with. I do not suggest that this is a matter of – I should make clear, your Honour, our submission is your Honour is not bound by any authority as to the meaning of this phrase. Insofar as there are morsels that inform it, we respectfully submit those are the two clearest indications, and they are not particularly clear but they are entirely consistent with the view that we urge upon the Court that this is a provision concerned with polling.
We think the high point of the case against us by the AEC in terms of High Court authorities is Bridge v Bowen and I know I took your Honour to it yesterday and I will not dwell on it, but if I could just ask your Honour to go back to one passage in that case. It is on page 618 of the report, where his Honour is discussing prevention. If your Honour looks at the start of the first full paragraph on that page, in my submission where his Honour talks on the third line of that paragraph about the words “may have been prevented”, he stops at that point, does not finish the whole phrase, his Honour says:
“may have been prevented” under the first head.
He is talking about the first head in Woodward where the concept is prevention from electing; it is not prevention from voting.
HIS HONOUR: Is that right? Is it not no real electing at all?
MR DONAGHUE: No real electing at all as then explained - - -
HIS HONOUR: The word “prevented” is not – the first category of case is described without engaging the word “prevent”, is it not? “No real electing at all”, instances include - - -
MR DONAGHUE: Instances include prevention from voting and then instances are summarised in the phrase “prevented from voting with effect”. That is right, your Honour. What his Honour then goes on to do is to quote from parts of that discussion in Woodward, the first dealing with the prevention from voting physically that this is what happens in the next sentence – no, sorry – he says:
includes prevention from recording votes with effect –
and then he deals with the fact whether there was actual physical voting. There was, and then the next few lines:
the Court inquires into the validity or invalidity of the votes given, to see whether the voters were prevented from voting with effect by reason of the official errors. If the error was a departure, however small, from a rigid mandatory enactment, so that the vote could not be counted, there would have been a prevention as to the votes affected –
So his Honour in that part of his reasons is talking about prevention from voting “with effect” and if this case is authority for anything about the meaning of this phrase, it is not that the line is drawn at the scrutiny, it is whether the vote could not be counted. So if the case is useful, it is useful for a broader proposition than the AEC is advancing.
HIS HONOUR: “Could not be”, not “was not”.
MR DONAGHUE: “Could not be counted”.
HIS HONOUR: “Could not” – possibility, that is, consideration in the scrutiny can be counted - not included in the scrutiny, not available for scrutiny, cannot be counted. Not “was not”, not “on the scrutiny was assigned to the excluded votes or not”.
MR DONAGHUE: But the case that is being specifically considered in Woodward in that scenario is a case of a vote that could not be counted because it was invalid from the start.
HIS HONOUR: No, the case considered in Woodward included the case where – it is an extreme case where you have got fraudulent counting of votes and you have positive misconduct by electoral officials, the kind of case I hope we do not ever have to grapple with, but cases predicated on the premise that the voter has done all he or she can do, including actually deposit the ballot paper in the ballot box, and then there is official misconduct where there is a false return made because there is fraudulent counting. Now, is that not an example?
MR DONAGHUE: Your Honour, that is one of the examples in explicating the concept, but what the case is actually about is - - -
HIS HONOUR: I understand that point. I do not need persuasion of the fact that Woodward v Sarsons decided the facts of the case that were then in issue.
MR DONAGHUE: But, your Honour, my point is a little different. My point is that in Woodward v Sarsons their Honours thought the votes could not be counted. The reason they could not be counted is not that they could not be scrutinised, it is that they were informed because of an electoral error made before the ballot was ever cast. So this is an example of a case – and Justice Isaacs is adopting the formulation – that does not attribute any significance to whether the vote can be looked at.
The question is whether the vote can be – effect can be given to the will of the elector. In Woodward v Sarsons it was held that it was a case - falling within this second limb, the vote did not have effect, but relief was refused because notwithstanding that fact when the Court looked at the votes it thought it did not make a difference. So, insofar as there is a governing criterion to be discerned from the authority, we submit that it is not a governing criterion - - -
HIS HONOUR: Derived from Woodward v Sarsons or to be derived from what the High Court in its early decisions understood Woodward v Sarsons to stand for? I would have thought the latter is what really mattered – really counts.
MR DONAGHUE: In my submission, the High Court in its early decisions did not get it wrong. It accurately understood what Woodward v Sarsons - - -
HIS HONOUR: I cannot say they did, can I?
MR DONAGHUE: No, your Honour, but I also do not wish to, because we submit that the discussions in those early cases are entirely consistent with what we are putting to your Honour about the case.
HIS HONOUR: That is the area for debate. I understand what you say about it, yes.
MR DONAGHUE: Now, I will not take your Honour to them, but if your Honour still has our submissions there, if I could just direct your Honour to paragraph 9. These are High Court statements about voting in the Act in contexts other than 365 and they, again particularly Faderson v Bridger which we have quoted in paragraph 9, plainly identifies the concept as physically marking the paper and putting it in the box, and Faderson v Bridger decided that that was what the word means in the context of the compulsory voting provisions. We have also quoted the Evans v Crichton-Browne Case. Now, I accept that these are all different contexts but insofar as - - -
HIS HONOUR: One of the great perils of this job is you write having regard to what you are dealing with and then later it is said that you have intended rather more. It is an interesting process, it is not?
MR DONAGHUE: Well, your Honour, I am certainly not submitting that anything has been decided, but what I am pointing to is the fact that in our submission there are a whole – insofar as the point has been considered in glancing blows, they are all glancing blows that assume the Act means what we say it means.
HIS HONOUR: Well, you say I am at large, the AEC says I am not. I understand that is the field for debate. In the end I have to decide it.
MR DONAGHUE: Indeed. Now, I am not proposing to take your Honour to any of the single judge State authorities that have been discussed.
HIS HONOUR: My question remains, and it is a question not interrogative statement, what do I get out of what has happened in the various State Courts of Disputed Returns that could be valuable, could be important, should be taken into account in what I decide? Do you say there is anything that I can or should be taking from them?
MR DONAGHUE: The difficulty is looked at as a body of authority, they are inconsistent with one another and they are often inconsistent with each other because counsel in the case have agreed on sometimes opposing outcomes so the points have not always fully been argued and the matter certainly in none of the cases has been explored in the level of detail that it is now being explored before your Honour. So that is one of the reasons I am not going there. We submit, in fact, that the steps in the analysis that Justice Nagle undertook in Freeman v Cleary are correct, so to that extent your Honour sees a line of reasoning which we support.
The other thing that we do say though, your Honour, is that our friends for the AEC have placed a lot of reliance on Campbell v Easter and also quite some reliance on Varty and they spent a while suggesting to your Honour that those cases help them. We submit that both cases are inconsistent again with drawing the line at the point of scrutiny, because in Campbell v Easter the votes were available to be scrutinised. It was like Woodward. It was a case where the votes were informal from the start because of an electoral official’s error, but they were available to be scrutinised but his Honour Justice Sugerman held that this was a case of prevention from voting.
So if the key is is the ballot paper there to be scrutinised, the case is inconsistent with that proposition. Likewise in Varty, the votes were available to be scrutinised. So our friends are taking some lines from those cases but if they support anything they do not support the line that your Honour is now being urged to draw, and so that is really a negligible defensive proposition. The one State case that has not, I think, been mentioned that I should mention to your Honour is a Full Court authority. It is the first case in the folder. It is R v Carr.
It is a very short judgment of Chief Justice Stephen for the Full Court and it is a case concerning the criminal provisions against double counting where an attempt was made by – sorry, double voting rather, where an attempt was made by the defender to say, “I am not guilty because one of my votes did not count” or “One of my earlier efforts to vote did not count and so I have only voted actually once and therefore I am not guilty”.
HIS HONOUR: Nice try.
MR DONAGHUE: Nice try, exactly, your Honour. What Chief Justice Stephen says is:
The point is too clear for argument. Voting is simply receiving a ballot paper and depositing in the box with the view of influencing the election. It is possible that the paper may not have that effect, but it must be taken to have been deposited with that view.
So again, your Honour, it is just – it is so clear, says his Honour, that the question is not about the effect of the vote, it is about whether you put it in the box. So that is what we say about the authorities, but as your Honour has put to me, you are at large in terms of binding authority. In relation to the usage in the Act, and again here I will be short, the structure of the Act obviously distinguishes in Part XVI and XVIII between the polling and the scrutiny and we submit that, just as a structural proposition that tends against the proposition that when Parliament uses the word “voting” it is intending to compendiously include two processes that the Act generally keeps quite distinct. Insofar as – and your Honour asked some of my friends yesterday about the clearest provisions concerning the usage of “vote” and its cognates, there are a couple of provisions I should alert your Honour to – 220 in the Act, if your Honour has - - -
HIS HONOUR: Alert me to as being the best examples?
MR DONAGHUE: As being the best examples.
HIS HONOUR: Namely, sorry?
MR DONAGHUE: Section 220, headed “The polling”.
HIS HONOUR: Yes.
MR DONAGHUE: In 220(b) we submit that Parliament is evidently contemplating that voting or a person desiring to vote and will have finished voting between the hours of 8 in the morning and 6 at night by attending at the polling booth, so that the process is over, given the past tense used by the time one leaves. Then in (c) you have the use of “voting” rather than voted:
The doors of the polling booth shall be closed at 6 o’clock in the afternoon and no person shall be admitted after that hour to the polling booth for the purpose of voting –
Then in (d) there is, we submit, a movement between the end of the polling process and the purposes of scrutiny with the ballot box being sealed up and then conveyed for the purposes of the scrutiny. So that distinction or the line that we are drawing, we submit, finds some recognition there. Your Honour also may derive some assistance from section 348 which is “Control of behaviour at polling booths” and there are various offences that can be committed at a polling booth. If your Honour looks at subsection (3)(c) the offence of entering and remaining on the premises without permission does not apply in the case of a polling booth to:
a voter who enters the booth for the purposes of voting and remains no longer than is reasonably necessary for that purpose.
These are just examples of the Act using the phrase in the sense of the physical acts involved which is not to say that there are not all manner of other important steps that the Act requires.
HIS HONOUR: But in context where the Act is speaking of what the elector is doing?
MR DONAGHUE: Yes.
HIS HONOUR: All of them, I think. That is all of the examples to which you have presently pointed? Is that right or am I misstating the effect?
MR DONAGHUE: Well, I think, your Honour, it is right in the sense that because it is the elector who votes the Act consistently draws that linkage but the process of voting is a process and the Part XVI process is a process that is a combined activity of the acts of officials and the acts of voters so one has to report to the official to get the ballot paper, the official has to ask questions of the elector so that is all part of the process but it culminates in the elector’s act and we submit that - - -
HIS HONOUR: You say it stops when the elector has done everything that the elector can do.
MR DONAGHUE: Elector has to do and if they cannot get to there because an official stops them getting to there they would be prevented from voting.
HIS HONOUR: That and only that is prevention.
MR DONAGHUE: Yes.
HIS HONOUR: I understand the submission.
MR DONAGHUE: Well, your Honour, I do not know that I need to say anything more about that then on question 1. If I could move then to the third part of our submissions which concerns the submissions that have been made to your Honour about – they have been developed – and this part of the case appears to be assuming increasing importance as the steps of first submissions reply, oral submissions have gone on. It has been put to your Honour that for the Court to look at these records of the fresh scrutiny would be inconsistent with reaching a result through scrutiny and for that reason is unavailable.
HIS HONOUR: Now, can I just try to work out some – I was going to say boundaries, but some markers that may bear upon the development of this argument. Can I do it by reference to 362 and can I do it through the prism of what I understand your case to be so that I can understand how the argument develops? Your first proposition was, as I understood it, that the Court may take account of the records of the initial and fresh scrutiny in deciding whether the result of the election, as declared, was or was likely to be – I walk past whether there is in truth any distinction between those ideas - was or was likely to be affected? That I understood to be your first submission and that you made no submission about the “likely to be affected” question if the Court may not take account of the records of fresh and initial scrutiny. So far so good?
MR DONAGHUE: So far so good.
HIS HONOUR: Step two is, you say, for 365 purposes, no prevention from voting and we have just – as I understand it – concluded what you wanted to say about that?
MR DONAGHUE: Indeed.
HIS HONOUR: Third, what relief do you say I can or should give in respect any of the petitions that have been filed? Do you make any submission about what relief I can or should give under those petitions, in particular, take AEC?
MR DONAGHUE: We make the submission that at this point of the case your Honour cannot get any relief on any of them because your Honour has not yet heard the arguments you would need to hear on that topic. The reason that I say that, your Honour, is this. The last submission I am going to make, and I can jump to it now if that would be convenient, is that even if your Honour were to find that 365 stops you looking at the records for the purpose of deciding whether or not the result was affected your Honour might then conclude because there are 1,370 votes about which I know nothing and given the margin, whatever the test it was likely to be - the declared result on the re-count was likely to be affected.
HIS HONOUR: Was likely to be affected.
MR DONAGHUE: Let us assume your Honour gets to that point.
HIS HONOUR: Yes.
MR DONAGHUE: We then say, even if the proviso stops you looking at the records up to that point you may then look at the records.
HIS HONOUR: I may then – that is to say, is it a necessary part of your case that the Court may construct the results that should have been obtained by taking account of what was found on re-count, whether adjusted or unadjusted on account of alleged errors in respect of reserve votes.
MR DONAGHUE: Yes, we say both the Court can and that it should.
HIS HONOUR: Coupled with the records from fresh and initial scrutiny?
MR DONAGHUE: Yes.
HIS HONOUR: And that the Court can and should thus declare not only that persons who were returned were not duly elected, if that were established, but can and should declare who was duly elected. Is that right?
MR DONAGHUE: Yes. I accept that is a further step that last step, but yes, that - - -
HIS HONOUR: But a necessary step?
MR DONAGHUE: Yes. Well, if your Honour is – right.
HIS HONOUR: It seemed to me that that is where the arguments ultimately had to get to.
MR DONAGHUE: Because you have to fill the fifth and sixth vacancies at the end of the day. Either you leave the current fifth and sixth people there, you fill them with the two unsuccessful candidates or you have a new election, that is the universe of possibilities.
HIS HONOUR: That is the universe of debate, is it not, which requires the Court to determine, does it not, who either was or should have been declared duly elected to five and six vacancies? So far so good?
MR DONAGHUE: Yes.
HIS HONOUR: Duly elected should be construed how, in particular should it be construed as meaning duly elected in the sense of elected in conformity with the Act?
MR DONAGHUE: Largely, yes, but not as an absolute unqualified position and Wood is going to be the basis for that submission in a nutshell because in Wood you have an unqualified candidate elected. The Act did not deal with the situation of how you count a vote for such a person and what the Court did was analogise with the position that would apply for a deceased candidate and then directed the AEC to conduct the re-count on that analogy but in a situation where the Act itself would not have permitted the AEC to do what was done without the Court having told it to do so. So, one part of our case is that this Court’s powers go wider.
HIS HONOUR: At some point in your argument and the argument advanced both by the Wang and Mead petitions it will be necessary to identify the statutory footing for the submission that the Court’s powers extend to declaring someone duly elected according to an assessment, according to an ascertainment of the result of the election otherwise than by scrutiny, but by combination of scrutiny and records made in the course of earlier scrutiny.
MR DONAGHUE: That was what I was about to embark on.
HIS HONOUR: Sure, and all that in circumstances where here we come back into 362(3). It is notable that the “unless” clause in 362(3) and its reference to “it is just” is attached only to two cases, not three. It is attached to “declared not . . . duly elected or that the election . . . be declared void”. It is not attached and there is a notable omission of any power in 362(3) for the Court to act on the basis that it is just that, somebody be declared duly elected. The question becomes then, what weight are we giving to “duly”. Now, I have put that on the table so that the parties can deal with it.
MR DONAGHUE: Thank you, your Honour. Can I just address that last point your Honour has made immediately? In our submission, 362(3) is not itself the power that your Honour would be exercising. It is a fetter on the power under 360(1)(vi) and (vii).
HIS HONOUR: Yes.
MR DONAGHUE: So that, in the event that in the third case your Honour posits the fetter does not apply, the question then is, we submit, one under 360(1)(vi) and (vii) and 360(2).
HIS HONOUR: That is “duly elected” without any reference to “it is just that”.
MR DONAGHUE: Well, your Honour would need to be satisfied that of the two limbs in order to declare someone was not duly returned, because that would be a precondition to - - -
HIS HONOUR: I understand that, but I am talking about declaring who was duly elected.
MR DONAGHUE: Well, the question would then come in:
on such grounds as the Court in its discretion thinks just and sufficient -
It comes in through 360(2), not through 362(3), but it is still a question directed to the justice of the ultimate outcome. So that is how we submit those provisions intercept. Before I come to the question of the records of the fresh scrutiny, can I deal with your Honour’s point about how can I declare someone to be duly elected in circumstances where that is not strictly in conformity with the Act, and can I give - - -
HIS HONOUR: Or at all.
MR DONAGHUE: Well, can I give an example?
HIS HONOUR: It is either in conformity or it is not. It is not strictly in conformity; it is either in conformity with something the Act permits, or it is not.
MR DONAGHUE: Can I give your Honour this example which I hope is a simple example but which on examination I suppose may turn out not to be? The case of a margin of – declared margin of five votes where there were 10 voters who attended the polling station, did not have their ballot paper appropriately marked by the officer but otherwise recorded clear votes in favour of the other candidate, the undeclared candidate. The Electoral Commission has no option by reason of section 268 of the Act but to declare those votes informal and so they will not be counted and so the other candidate wins by five with those 10 votes missing. But if a petitioner then comes to the Court of Disputed Returns and says, “There was an error made by an official in failing to initial my ballot paper which had the consequence that my vote was invalid”, and so I do not quibble with the fact that the Commission could not have counted it but, nevertheless, that is an error that was likely to have affected the result, as you can tell by looking at these 10 ballot papers which make it clear that the other candidate would have won had that error not occurred.
HIS HONOUR: What, have the Court declare that the other candidate was duly elected when the Act required that the votes submitted be excluded? Wow.
MR DONAGHUE: Your Honour, in that scenario the candidate – the petitioner clearly jumps the hoop of showing that the result was likely to be affected, would, in our submission, be able to demonstrate that it was just that the candidate who was declared to have been elected returned should not have been returned, and so the Court of Disputed Returns then says, “Do I have to order a new election for this position or can I declare the candidate who should have been elected - - -
HIS HONOUR: No, in that case posited you do not declare that the person was not duly elected. The person was duly elected. The person was elected in accordance with law; end of game. No question of ordering a new election arises. No question of ordering somebody else to be elected arises. The Act has been applied according to its terms. It has led to a result.
MR DONAGHUE: Well, the Act has not been applied in accordance with its terms.
HIS HONOUR: Why?
MR DONAGHUE: Because people have been disenfranchised by the reason of the acts of officials.
HIS HONOUR: True.
MR DONAGHUE: I have posited 10, but it could be hundreds or thousands of people who have been affected by these errors so there has not, in our submission, in that scenario been a lawful election. People have been deprived of the very vote that the Constitution in section 7 in the provisions your Honour raised yesterday would accord to. In our submission, the example I have given is a traditional example where the Court of Disputed Returns would say, “The other guy won”, and would so declare, and that is why it looks at the ballot papers in that kind of example, in order to determine the result that had the error not occurred – which is the very kind of thing that was being done in Woodward when people looked to see whether – and there are a number of examples.
Indeed, in Kean v Kerby when Justice Isaacs was going through hearing evidence voter by voter about what was happening, he was looking to see whether or not it made a difference. But in a scenario where you have clear evidence before – where the Court of Disputed Returns has clear evidence as to who should have been elected, we submit that it is not necessary to void the whole election and start again. That is the scenario where someone can be declared as returned as elected.
Now, your Honour, I am conscious of the time, so can I take your Honour to the submissions I want to make about this use of the records and the idea that that would not be a result through the scrutiny and consider that question against two slight counterfactual variations of what occurred here? As your Honour knows, the initial request for a re-count was refused by the Western Australia electoral officer but ultimately an appeal to the Electoral Commissioner was allowed.
Had that appeal been refused, it would not have been arguable that the 1,370 persons whose votes had in fact been lost unbeknownst to anyone had been prevented from voting and the result would undoubtedly have been valid. The result of the election would undoubtedly have been valid. There would have been no basis to complain about the declaration of the candidates on the basis of the fresh scrutiny records, the very records that your Honour is being asked to rely partly upon in this case, had that administrative decision made by the Electoral Commissioner been made differently.
The next point to make, your Honour, is that on the facts of this case the re-count that the Commissioner did in fact order was not a re-count of all of the votes. It was a re-count of the above the line votes and the votes that the Commissioner described as obviously informal. They were the only ones included. They left out according to the agreed facts at paragraph 35 about 4 per cent of the total votes or, by our calculations, about 50,000 voters. When the AEC following the re-count declared particular candidates to be elected, it did not ignore the 52,000 people whose votes had not been re-counted. It combined the records of the fresh scrutiny for those voters.
HIS HONOUR: I well understand that to be so, yes.
MR DONAGHUE: I am trying to take the point in steps, your Honour, but what that is is an example of what has been pejoratively termed mixing and matching of records of the fresh scrutiny with records determined on a re-count.
HIS HONOUR: No, it is not. Anyway, go on.
MR DONAGHUE: It is the record, your Honour, of all of the votes that were actually re-counted, but you have to add to them the votes that have not been re-counted.
HIS HONOUR: Yes, I understand that. It does not need the mix and match point at all, I would have thought, Mr Donaghue, but if you say it does I will consider it. Yes.
MR DONAGHUE: Your Honour, the next step in the argument is that had the missing votes been discovered – there was a week between the refusal of the initial re-count and the decision to order the re-count - had the missing votes been discovered in that period of time, there is no question that it would have been open to the AEC to order a re-count in terms that excluded the ballots that had been lost from the particular divisions which are identified in the agreed facts – Pearce and Forrest - particular boxes, to re-count all of the remaining almost 1.3 million votes and to combine the records of the fresh scrutiny of those missing ballot boxes with the records in the re-count. That would obviously have been authorised by the Act, because 278 of the Act plainly authorises a partial re-count of votes by reference to parcels as determined by the Electoral Commissioner.
That, as your Honour would understand, is the very situation that confronted Justice Barton in Blundell v Vardon. He knew before the re-count was ordered that some votes had gone missing. He said, “Well, what implications does this have?” and he says, “Well, what I’ll do is I’ll order a re-count of the votes I can re-count and I’ll combine it with the missing records”. If that is right, your Honour, and we submit it is clearly right that the Commissioner could have engaged in a re-count of that kind, then the Commissioner could have mixed and matched the records of the missing votes just by adjusting the re-count that was ordered. There is, we submit, as a matter of substance absolutely no difference between – what it comes down to, the AEC’s submission comes down to this, that this election was rendered irretrievably invalid because of the re-count, not because of the loss of the votes.
That did not render the election invalid because that would have had no effect if there had not been a re-count or if there had been a re-count that had excluded them. The thing that rendered the election invalid and irretrievably invalid was that the re-count was ordered in terms that extended to the votes that had been lost and that in circumstances where the Commissioner did not know that the votes had been lost at the time that that re-count had been ordered. That, your Honour, is an accident of timing.
It is not a point of substance that says, your Honour, that there is some fundamental problem with combining results of the fresh scrutiny with the results of a re-count of some of the votes. That is a conventional ordinary thing to be done. Your Honour is being asked to attach determinative and unfixable significance to the fact that the re-count order that was made by the Commissioner was made in the terms that it was in ignorance of the relevant facts when, had the facts been known, it is impossible to conceive that the re-count would have been ordered in the terms that it was.
HIS HONOUR: On what footing would I make that conclusion, Mr Donaghue, really?
MR DONAGHUE: Well, your Honour knows because it is in the agreed facts that the reason the Commissioner ordered the re-count was not because of any identified problem with the votes. He just said given the close margin we should – it is prudent in the interests of confidence in the system to check. It is hard to see how it could have been intended to enhance confidence in the system to order a re-count that was known to include votes that could not be re-counted.
But ultimately, your Honour, the point that we make is this, that your Honour is not now standing in the shoes of the Electoral Commissioner, but if your Honour accepts, and we submit, with respect, that your Honour must accept, that the Commissioner could have saved – if he had known about the missing votes before the re-count order was made, if he could have saved this election either by not ordering a re-count or by ordering a re-count that did not extend to the missing ballots, then the Court is in, in substance, the same position, that there is nothing inconsistent with anything in the Act for your Honour to say the AEC could have relied on the records of the fresh scrutiny and added them to the records of the re-count of all papers that could be found and achieved the result, I can therefore do the same thing. We respectfully submit that the submission that that in some way transgresses upon some fundamental structural feature of the Act cannot be maintained.
Now, your Honour, I promised to refer your Honour to Wood and can I take your Honour to that to support the aspects of the submission that I have just made? It is [1988] HCA 22; 167 CLR 145. Page 166 is the critical point, or from the bottom of 165. The Court is recognising that the ballots that had actually been cast by the electors in this case were not effective insofar as they contained votes for the unqualified candidate, but otherwise the Court was prepared to treat them as effective. It then had to deal with the question of what should be done in order to fill the 12 vacancies, and if your Honour looks about five or six lines down on 166 the Court says:
It is as though the unqualified candidate were deceased –
It refers to the provision that would have applied if the candidate had been deceased and indicates that the Act should be construed in order to give effect to the same policy objective, at the end of that paragraph:
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.
So the majority were prepared to countenance an adjustment of the strict terms of the Act so as to give effect to the true intent of the voters. The way that that then played out, at the end of this judgment the Court said, “We haven’t heard argument about what, if any, further directions we should make to give effect to this. Come back if you need to”. The AEC did come back, we submit in correct recognition of the fact that without some assistance from the Court or some direction from the Court it would not have been open to it to do the thing that was referred to at the top of 166, because that would not have been in accordance with the terms of the Act.
The orders that the AEC sought, that his Honour Chief Justice Mason made, are set out on 173 of the report, and they are, in our submission, instructive because order (1) is an order to treat the ballot paper – votes indicated on the ballot paper opposite the name of the disqualified candidate as if they were for the candidate next in order and to re-number.
Order (2), the “counting and recounting be conducted” not strictly in accordance with the relevant provisions of section 273 but “as nearly as practicable in accordance with the relevant provisions of s. 273”, so his Honour is clearly countenancing an adjustment on the re-count from the strict operation of the terms of the Act.
Order (4), in respect of group voting tickets, there had only been two people in the relevant group, and Mr Wood being disqualified, there was only one who would not have been eligible to be counted as a group, but that is adjusted so that votes for that group are treated notwithstanding that the candidate acting alone would not have been able to have been registered pursuant to that provision.
Then in orders (5) and (6), far from the records of the fresh – or the relevant scrutiny having been disregarded, rulings about the formality and informality from the earlier count are preserved, so it is not necessary to just forget it all and go back - - -
HIS HONOUR: Well, were those orders made?
MR DONAGHUE: Yes, they were.
HIS HONOUR: Where do I see that?
MR DONAGHUE: At the end of the – actually, your Honour, I am hoping I am not misleading your Honour – at the end of the judgment.
HIS HONOUR: Page 175?
MR DONAGHUE: Yes, that is right, for which his Honour made orders in accordance with the notice of motion, but maybe he stopped halfway.
HIS HONOUR: Stopped at order 4, I thought.
MR DONAGHUE: I apologise, your Honour. I have misled your Honour in that regard. But the submissions that I make up in relation to orders 1 to 4 stand, we submit. His Honour was clearly modifying the operation of the Act in respect of the re-count provision, and as we understand it, a candidate was cleared on that footing.
I am indebted to my learned friend for Mr Wang. Ultimately, his Honour made order 5 as well as – if your Honour would excuse me for one minute. I think I have misread this, actually. Yes. If your Honour looks at order 2 as made, in the middle of page 175, his Honour refers to making orders as set out in paragraph 9 of the affidavit “and numbered (1) to (8) inclusive”. Does your Honour see that?
HIS HONOUR: Yes.
MR DONAGHUE: Then the orders that I was reading from 173 are as appears just before the quote from the orders, the “directions set out in par. 9 of that affidavit”.
HIS HONOUR: Yes.
MR DONAGHUE: So his Honour did make, it seems, the orders set out in that paragraph.
HIS HONOUR: Well, that is not apparent to me. You will need to step me through it. You may be right, but it is not apparent to me.
MR DONAGHUE: Order 2, reflected on page 175, is:
That the further counting and recounting of the ballot-papers be conducted in accordance with the directions set out in par. 9 of the affidavit of [Mr] Hughes sworn 19 May 1988 and numbered (1) to (8) inclusive –
with one substitution, substituting “preferences” for “preference”.
HIS HONOUR: Yes.
MR DONAGHUE: Then when your Honour goes back to page 173, your Honour will see that there is a reference to the affidavit of the Electoral Commissioner:
able to conduct the further counting or recounting required . . . subject to the Court giving certain directions set out in par. 9 –
numbered (1) to (8). So we submit that the order that his Honour in that order 2, consistently with my original submission, is that his Honour did make the orders that the Commission invited to be made.
HIS HONOUR: Yes.
MR DONAGHUE: They are orders not just modifying the operation of the Act in some way, but giving effect to formality rulings reached in the earlier count, and indeed in order (8), not physically re-counting the ballot papers that were marked with group ticket voting. The physical counting of those ballot papers appears to have been allowed to stand, but just adjusting the direction of the votes according to the group tickets.
HIS HONOUR: In part, there were directions for a partial re-count, a process contemplated by the Act.
MR DONAGHUE: Sorry, your Honour, I do not understand that. Directions - - -
HIS HONOUR: In part, paragraphs (5), (6), et cetera, as appearing at page 173, were directions which yielded the result of a partial re-count, were they not; those which had been declared informal were to be treated as informal, et cetera.
MR DONAGHUE: Your Honour, if that result is open, the same result is open to your Honour now.
HIS HONOUR: What, a partial re-count? Of what papers? There cannot be a partial re-count of the lost ballot papers.
MR DONAGHUE: The records of the part that cannot be re-counted are the records that can be used to declare the result, if it were needed. We do not say that a partial re-count is necessary here because the partial re-count has already occurred. It has occurred of all of the votes that - - -
HIS HONOUR: A partial re-count has not occurred. The partial re-count that was directed did not occur in accordance with the Act. That is the premise for all petitions. I had not understood any party to dispute that the partial re-count which was ordered did not take place in accordance with the Act, and could not.
MR DONAGHUE: Your Honour, the re-count that was ordered did not take place because it was ordered in terms that extended to papers that were incapable of being re-counted. Our submission is that because, as a matter of substance, there was no impediment to a re-count being ordered of the kind that re-counted all available votes and combined it with the record of the fresh scrutiny, as Justice Barton did in Blundell - forgetting about Blundell, as is obviously open as a matter of principle having regard to the power to order a partial re-count, there is nothing in substance preventing this Court from giving effect to the missing records and combining them with the records of the re-count because that is, as a matter of substance, precisely what the AEC could have done.
Insofar as there is said to be some impediment to that, the judgment in Wood, inconsistently with the submission Mr Merkel put to your Honour yesterday, does not support the proposition that your Honour is rigidly confined by what would have been available to be done by the AEC, in any event; quite the contrary, having regard to the orders that the Chief Justice made in that case.
Your Honour, conscious of the time, can I make final brief submissions about our fourth point, which I think I have probably partially touched on already? If your Honour turns to 365, which your Honour probably knows by heart by now, it is, we submit, plain on the face of the proviso that the prohibition that it contains upon the admission of evidence is a prohibition that is directed to a purpose that is identified expressly in the Act, the purpose being to determine whether the error “did or did not affect the result of the election”.
Even if your Honour finds inconsistently with every submission that we have made about 365 that the proviso applies, it can apply no more widely than to prevent the admission of evidence for that purpose. But it is plain, having regard to 362(3) that there are other issues that your Honour will need to consider beyond whether or not the result was likely to be affected, that, we submit, are rationally informed by the knowledge that in this case while 1,370 votes were lost, the large majority of those votes were for the Liberal candidates. Most of the rest of them were for the ALP candidates, and only 23 of them bore upon the result at the 50th exclusion point. That knowledge is relevant to what your Honour should do with the petitions, we submit, because - - -
HIS HONOUR: In what respect?
MR DONAGHUE: Because while your Honour might be concerned by whether – or your Honour might think that looking at the reserved ballot papers is not going to be a useful exercise given an absolute number of reserved ballot papers that are challenged if the number that your Honour is concerned with is 1,370. If the number is 23, then the task that confronts the petitioners in persuading your Honour that they should have been returned is very much easier to discharge because if your Honour were to be persuaded by those petitions that Mr Bow should have won by 100 or 200 votes at the 50th exclusion point, then we submit it would – knowing that the missing votes in fact bore upon the critical question that the 50th exclusion point only as to 23 of them – it would, we submit, be hard for your Honour to be persuaded that the just thing to do was to vacate the whole election, including the election of Senators who were evidently not affected in any way by the errors that had occurred, because
your Honour would, we submit, be able comfortably to know what the true intent of the election was, using the expression lifted from the joint judgment of seven members of the Court in Wood.
HIS HONOUR: But it is not only whether it is just that the whole election be declared void. You have to say that that should not ensue because the Court can and should declare who was duly elected. Absent that, you are left with a conclusion about “not duly elected” and the premise is no conclusion about who was duly elected. That is necessary.
MR DONAGHUE: But if “duly elected” means that votes that were informal were properly ruled informal, then to give your Honour - - -
HIS HONOUR: Well, a possible point of view is that “duly elected” means elected in accordance with the Act.
MR DONAGHUE: That is a possible point of view.
HIS HONOUR: Is there any other competing point of view that I need to consider?
MR DONAGHUE: Yes, your Honour.
HIS HONOUR: Namely? “Duly elected” means - - -
MR DONAGHUE: That “duly elected” in the context of a Court of Disputed Returns allows the Court to overcome errors that it is established have been made by officials in administering the Act. Whenever an official takes a valid vote and wrongly rules it to be informal, that official is making a judgment that is an illegal practice under the Act if they get it wrong. That is the kind of thing that is conventionally fixed by a Court of Disputed Returns.
But the clearer case, and it comes up again and again in the authorities in the single judge decisions in Courts of Disputed Returns, are cases where officials at the polling booth muck things up in ways that deprive voters of having any opportunity to have their votes considered. If your Honour were to hold that people have been duly elected, so that a Court of Disputed Returns is powerless in a case where people are disenfranchised because of voter error at the polling booth, that would be a massive confinement of the traditional role of a Court of Disputed Returns. We respectfully submit that that meaning is fundamentally inconsistent with the role that a Court of Disputed Returns ordinarily plays. Your Honour, I have taken a lot of time. Unless your Honour has any further questions, those are my submissions.
HIS HONOUR: Yes, thank you. Yes, Mr Lang.
MR LANG: Your Honour, the petitions before the Court of Mr Mead and Mr Wang are not the same. The Mead petition, the petition of my client, does not urge the Court to affirm the result of the fresh scrutiny, or to determine the result of the election by combining the records of the original or fresh scrutinies with the result of the re-count. We are not seeking mix and match or some sort of shandy, your Honour. That is not our position.
Contrary to what is said in particular in terms to Ludlam’s written submissions, Mr Mead does not suggest that the Court should conduct a notional re-count by combining the records with the results of the re-count. That is not our position at all. The primary argument in Mr Mead’s petition is that if the reserved ballot papers are admitted or rejected correctly, Mr van Burgel, not Mr Bow, should be excluded at the 50th exclusion point of the re-count.
Mr Mead accepts that in order for that argument to succeed he must establish that in those circumstances the loss of the missing ballot papers did not affect the result of the election and we say that squarely in our petition, your Honour.
HIS HONOUR: Sorry, did not affect? Did or did not affect? Loss did or did not affect?
MR LANG: Did not affect, did not affect. Our case, your Honour, is that that the starting point is for the Court to rule on the reserved ballot papers and once that has been done the loss of the missing ballot papers does not affect the result of the election because Mr Bow will be sufficiently ahead of Mr van Burgel at the 50th exclusion point but it simply will not matter. The net effect of the - - -
HIS HONOUR: How do I determine sufficiently ahead without knowing what is in the lost papers?
MR LANG: You have to look at the secondary records, your Honour, and that is part of our case. So we argue - - -
HIS HONOUR: So why is not there a mix and match happening?
MR LANG: Because it is for a different purpose that the Court is being invited to look at the secondary evidence of the missing ballot papers, not for the purpose of aggregating those votes with the votes on the re-count of the ballot papers that were not lost, but for the purpose of determining whether the result of the election was likely to be affected by the illegal practice. It is a very different position from that advanced by Mr Wang or, indeed, on behalf of the Liberal candidates.
So the starting point - your Honour, this situation has, if I may say so, arisen because of the two points that the AEC raised at the original directions hearing on 12 December. The first point was whether any evidence could be admitted in relation to the records of the missing ballot papers, and that has been debated extensively over the last two days. The second point they raised originally, your Honour, was that the reserved ballot papers could not be looked at all either. Now, that position has subsequently been resiled from, but it was only on the basis that those two points needed to be determined as preliminaries, that my clients agreed to the process that has been conducted by way of determination of these preliminary questions. In our submission, the way that the matter should have - - -
HIS HONOUR: Yes, those orders were not made by consent, Mr Lang. Those orders were imposed on the parties by me. It is not a question of whether you agree. Yes, go on.
MR LANG: Indeed, your Honour, I was asked whether I thought they were appropriate by your Honour and I said I did, but in the circumstances where it was said by the AEC that the reserved ballot papers could not be examined. If that had not been the case, your Honour, I would have submitted that the first step in the process should be the examination of the reserved ballot papers to see what effect they had on the margins in this case. Clearly, if Mr Bow is ahead of Mr van Burgel by some hundreds of votes, it is a vastly different situation from Mr Bow being behind Mr van Burgel by a matter of a couple of votes. That is where the question that your Honour raised yesterday of substantially accurate comes in.
HIS HONOUR: First, the AEC alleges illegal practices occurred. Do you dispute that there were illegal practices constituted by and resulting from the loss of ballot papers?
MR LANG: Yes.
HIS HONOUR: You say there were no illegal practices.
MR LANG: No, we say that was an illegal practice.
HIS HONOUR: You say it was - - -
MR LANG: Whether it affected the result of the election is a different question.
HIS HONOUR: Affected which result? The result as declared?
MR LANG: As declared.
HIS HONOUR: The result as declared surely was affected when it is observed that fresh scrutiny went one way. Re-count, on which the result was founded, went the other.
MR LANG: What affected the result of the election primarily, your Honour, was the illegal practice of the incorrect rulings made by the Australian Electoral Officer for Western Australia in relation to the reserved ballot papers. That question needs to be determined, in our submission, first. If that question - - -
HIS HONOUR: Why?
MR LANG: Because, your Honour, to reiterate our case, once the reserved ballot papers are ruled on correctly, our submission is that the missing ballot papers will be irrelevant. They cannot have affected the result. The net effect of them will be irrelevant, absolutely irrelevant.
HIS HONOUR: Yes.
MR LANG: So to go back to what we say in our outline of argument, your Honour, the secondary evidence of the missing ballot papers shows that only a small number of them were cast for groups which could have affected the result of the election and the net margin, furthermore, of those ballots favoured Mr Bow. If the reserved ballot papers are ruled on in the manner for which we contend, and the secondary evidence is admitted, then the loss of the missing ballot papers which favoured Mr Bow over Mr van Burgel will not have affected the result of the election at all.
The relevance of the records is not to add them to the tally, which will result from direct consideration of the reserved ballot papers, but to establish that in those circumstances their loss did not affect the result. That is our position. Now, where the records are substantially accurate in our petition at paragraph 32, contrary to what has been said on behalf of Mr Dropulich, any alleged unreliability of those records is a question of weight, not of admissibility. The reliability of the records may be a question of fact and agreed to be determined at a future date, the significance of which will depend on the margin which exists after reconsideration of the reserved ballot papers.
Our alternative case is that if no evidence can be admitted of the records of the missing ballot papers, then the number of reserved ballot papers in dispute is insufficient to overcome the uncertainty which would arise from assuming that nothing can be known about them and in that scenario, which is the one that the AEC contends, we accept that the election would have to be declared absolutely void. So, your Honour, to put that more sharply, we do not accept that the notional re-count is a proper basis for determining this election. That is not our position. That would be unsatisfactory.
In relation to the specific questions that the Court has raised, as I indicated shortly before the adjournment yesterday, your Honour, we largely adopt the submissions made by Mr Donaghue on behalf of the Liberal candidates. We say that neither the text of the proviso to section 365, the structure of the Act, the legislative history of the enactment or for that matter section 7 of the Commonwealth Constitution, support construing “prevented from voting” to mean prevented from voting with effect or prevented from casting a ballot paper which is considered as part of the determinative scrutiny.
Your Honour, on a plain reading of the text of the proviso, an elector cannot have been prevented from voting if he or she has actually voted. The text and structure of the Act establish that voting is an activity undertaken at an identifiable time and place by electors and during polling, and Mr Donaghue has taken you to specific provisions, in particular section 220, and the provisions around there. Whether an elector has voted does not depend upon whether his or her ballot paper was considered in the scrutiny and we have made more detailed submissions about that in our submissions in-chief at paragraphs 8 to 21. There is nothing, your Honour, in the text of section 365 or its location in the structure of the Act to suggest that voting in the proviso should be given any different meaning.
The legislative history of the enactment of the proviso also supports a construction of “prevented from voting” to mean prevented from actually voting by deposit of a ballot paper. It is clear, your Honour, that the amendments to what was then section 194 of the Act, that were introduced in response to Kean v Kerby, to change the onus of proof to reflect English law and to protect the secrecy of the ballot and we make those points in our submissions in-chief at paragraphs 22 to 36. The plain purpose of the insertion of the proviso was to prevent oral evidence of voting intention being adduced after the event from electors who had been physically unable to actually vote because of official error and that is said in the second reading speech and the other speeches, both in the Senate and the House of Representatives.
As I have already indicated, we adopt the submissions that have been made on behalf of the Liberal candidates in relation to Woodward v Sarsons and Bridge v Bowen. Woodward v Sarsons is a case that deals with prevented from voting with effect and all of the passages in the Act that case that have been relied on, when they do use prevented from voting, simpliciter, refer back to prevented from voting with effect. Neither of those cases provides any support for construing the proviso to mean prevented from casting a ballot paper which is considered as part of the determinative scrutiny.
English law, as evidenced by Woodward v Sarsons itself, did permit examination of ballot papers rendered informal by official error for the purpose of determining whether the error had affected the result of the election. Nothing in the parliamentary debates suggests any legislative intention to change the position in Australian law by enactment of the proviso. In relation to section 7 of the Constitution, your Honour, that provision does not inform the construction of the proviso to section 365. The proviso is simply a limitation on when evidence of a certain type, in this case voter intention, is admissible for the purposes of proving that an official error did not affect the result of the election. It is not a separate grant of power or a stipulation of the circumstances of which the Court may or must declare an election absolutely void. Section 7 of the Constitution might, your Honour, inform construction of the grant of power under sections 360 or 362 of the Act but it does not compel or inform any particular construction of the phrase “prevented from voting” in the proviso.
In relation to question 2, your Honour, our submission is that the evidence of the records is admissible. Section 365 does not preclude the admission of the records of the original fresh scrutiny of missing ballot papers because the electors who cast their votes by means of those ballot papers were not prevented from voting. Even if those electors were prevented from voting, section 365 only precludes the admission of evidence which would violate the secrecy of the ballot by revealing how the elector intended to vote and we make those submissions in detail in our analysis of the Supreme Court cases at paragraphs 28 to 36.
If I could just interpolate there, your Honour, it is, in our submission, noteworthy that in Campbell v Easter Justice Sugerman, while he discusses the legislative history of the equivalent provision of the New South Wales Act, he does not at any stage refer to the purpose for which that proviso was inserted, that purpose we say being to preserve the secrecy of the ballot. Similarly, your Honour, in relation to Varty v Ives, it is our submission that in that case the very clear preoccupation of Justice Starke was with that question, preserving the secrecy of the ballot. Our submission is that properly viewed, those cases are about that issue, the preservation of the secrecy of the ballot, which does not in any shape or form arise in this particular case.
The AEC records of the missing ballot papers do not violate the secrecy of the ballot. They do not reveal how any individual voter intended to vote. There is nothing in sections 263 or 281(3) prohibiting the admission of the AEC’s records of the missing ballot papers for the purpose of determining simply whether their loss affected the result of the election. In relation to section 263, we do not contend that the result of the polling should be ascertained otherwise than by scrutiny. We are not suggesting that the records of the missing ballot papers should be added to the results of the re-count and a result declared on that aggregation. Nor for the purposes of section 281(3) are we agitating for a further re-count of the whole or any part of the ballot papers, other than the reserved ballot papers.
HIS HONOUR: Just as to this secrecy issue, it is, I suspect, by the by, but if I go to annexure A or annexure B of the statement of agreed facts - - -
MR LANG: So which paragraph was it, your Honour?
HIS HONOUR: The annexures, A and B. I simply note with some interest that there is one booth where the votes all went one way. Is that right?
MR LANG: No, that does not - - -
HIS HONOUR: Column 2.
MR LANG: Yes, I see what your Honour - but, your Honour, they are not all of the ballot papers for the Henley Brook booth. They are a bundle of ballot papers from the Henley Brook booth.
HIS HONOUR: Yes. I see.
MR LANG: Your Honour, the task of analysing these figures is not a task for today.
HIS HONOUR: No.
MR LANG: It is a task for another time, should the matter proceed.
HIS HONOUR: Yes.
MR LANG: There will need to be extensive analysis in order to establish how substantially accurate - to use the discussion that your Honour embarked on yesterday - how substantially accurate the records are.
HIS HONOUR: How will one know?
MR LANG: Sorry?
HIS HONOUR: How can one know?
MR LANG: By analysing the figures, your Honour. So, for example - - -
HIS HONOUR: Without regard to the papers?
MR LANG: Well, your Honour, as Mr Donaghue said yesterday, in relation to the 23 of missing ballot papers that actually matter, the counting of those ballot papers did not change between the original scrutiny and the fresh scrutiny. That is relevant, your Honour, but as I have already said, that is a question that goes to weight, not to admissibility.
In relation to the third question, your Honour, our submission is that further inquiries into the reserve ballot papers are permitted, relevant and necessary. All parties have accepted that the Court of Disputed Returns has power to inquire into the manner in which the Australian Electoral Office had dealt with the reserve ballots and to inspect those ballot papers as part of that process. Such powers may be found in sections 291(3), 360(1) and 361(1) of the Act. In particular, section 281(3) expressly empowers the court to consider any ballot papers which were reserved for the decision of the Australian electoral officer.
We accept, your Honour – and this is where we part company with both Mr Wang and the Liberal candidates – that if evidence of the records of the original scrutiny or the fresh scrutiny of missing ballot papers is not admissible then further inquiry into the manner in which the Australian electoral officer dealt with the reserve ballot papers is neither relevant nor necessary to the disposition of our clients’ petition. In that eventuality, we would contend that the election should be declared
absolutely void, as the AEC has submitted. That is the position that I took at the original directions hearing and that remains our position, your Honour.
However, if evidence of the missing ballot papers is admissible, in the narrow terms that we have submitted, your Honour, not for the purposes of abrogation but simply for the purposes of deciding whether the result has been affected, then further inquiry into the handling of the reserve ballot papers is relevant and necessary to the resolution of the allegations at paragraphs 23, 25, 33, 36 and 38(a) of Mr Mead’s petition. In particular, if evidence of the missing ballot papers is admissible, our clients’ position is that when the reserve ballot papers are ruled on correctly, Mr Bow would have more votes than Mr van Burgel at the 50th exclusion point, so that Mr van Burgel should be excluded.
The AEC records of the missing ballot papers are substantially accurate. The AEC records of the missing ballot papers show that more of those lost ballot papers favoured Mr Bow than Mr van Burgel. The exclusion of Mr van Burgel rather than Mr Bow would have occurred regardless of whether the missing ballot papers were included in the re-count or not, and Mr Wang and Senator Pratt should therefore have been declared as elected to the fifth and sixth vacancies respectively.
Your Honour, I should point out that in relation to the numbers of votes, the numbers of reserve ballot papers, our petition very carefully, in relation to the votes that have been challenged, says “at least” in every case. In Mitchell v Bailey, your Honour, there were some 643 reserve ballot papers of which only 39 or 40 were specifically challenged by the petitioner. In the result of that case, your Honour, nearly a quarter of the 643 reserve ballot papers were ruled on by Justice Tracey differently from the ruling initially made by the Australian electoral officer for Victoria.
The point I am seeking to make is that it is quite possible that in this case, even though a relatively limited number of ballot papers had been challenged in terms of the particulars that have been given, many more ballot papers may be subject to change than those figures would indicate. That is why the words “at least” have been used both in our petition and in that of Mr Wang.
Those are the submissions on behalf of Mr Mead, Mr Bullock and Ms Pratt.
HIS HONOUR: Thank you, Mr Lang. Mr Barlow.
MR BARLOW: May it please the Court. Can I start by just pointing out that Mr Wang does not seek a notional re-count either. We contend what is stated, more relevantly at this point, in the statement of agreed facts at paragraph 61(b) - we contend, your Honour, that if one has regard to those records, it is likely that, had the re-count been conducted as directed, the result would have been different and, therefore, it is likely that the loss of the ballot papers affected the result of the election.
HIS HONOUR: I am sorry; put that again. If the re-count had been conducted properly?
MR BARLOW: Then the result would have been different and, therefore, the loss of the ballot papers is likely to have affected the result – in fact, did affect the result of the election.
HIS HONOUR: Yes. In that respect you make common cause with the AEC, do you not?
MR BARLOW: In that respect, we do, your Honour.
HIS HONOUR: Yes, and otherwise not, I understand, but in that respect at least.
MR BARLOW: Yes. I will come back to address that in a little bit more detail later, your Honour. Could I start, in accordance with the summary of oral argument, with just addressing some general principles briefly. Your Honour, we accept that section 7 and, in respect of the House of Representatives, section 24 of the Constitution, inform the construction of the Commonwealth Electoral Act. The Act is clearly written against the background of, and it is intended to give effect to, the requirements of those sections.
HIS HONOUR: There might be a slight difficulty about validity if it did not.
MR BARLOW: Yes, exactly, your Honour, and of course that is what this Court needs, as your Honour was stressing yesterday, to keep in mind – that the Constitution requires that the Parliament be elected directly by the people and, we would say, exercising a free and informed choice. That is perhaps a gloss on it.
What we submit the Court should draw from that notion of a direct choice insofar as it bears upon the Court’s role under the Act is that, so far as possible, the Act should be construed so as to give the Court the amplest power to give effect to what is known about the choice made by the electors at the relevant election. Of course, this Court is the final arbiter of the dispute.
In our submission, it is wrong to suggest that those sections of the Constitution require that the court may only proceed by way of a scrutiny of ballot papers. While the scrutiny, which we contend is the ascertainment by polling officials of the results of the polling, is a means to an end – namely, to determine what was the choice of the electors. It is not an end in itself. It is the polling that is crucial to determine what is the choice of the electors. One sees a legislative expression of that in section 268(3), which provides that - - -
HIS HONOUR: Informal only on the ground specified and give effect to voters’ intentions.
MR BARLOW: Yes; one must give effect to the voters’ intention, so far as that intention is clear. In our submission, therefore, your Honour, it follows that the provisions of the Act which might be said to require the court to ignore the best evidence of the intention of electors who have cast votes in the poll and to close its eyes - - -
HIS HONOUR: Ignore best evidence or ignore only available evidence, Mr Barlow? Best evidence is surely the ballot paper. That is best evidence.
MR BARLOW: Yes. To require the court to ignore available evidence should be construed narrowly.
HIS HONOUR: Only available.
MR BARLOW: Yes, the best evidence available.
HIS HONOUR: Only available.
MR BARLOW: Yes.
HIS HONOUR: That is not best.
MR BARLOW: No. We accept that, your Honour. Provisions that require the court to ignore the best available evidence should be construed narrowly, in our respectful submission, when that evidence bears on the choice of the electors. In other words, we submit that section 364 should be given the greatest possible effect. I will come back to that a little later, your Honour.
HIS HONOUR: But on no view can 364 mean other than decide according to law, can it? Is that not established by Wood, Lack and other cases – Sue v Hill or many – to be judicial power that has to be decided according to law, has it not?
MR BARLOW: According to law but not necessarily according to all the procedural requirements of the Act, your Honour, if they were to prevent the court from being guided by the substantial merits having regard to the evidence of the choice of the electors. One would be restricting oneself to legal forms or technicalities if one said this Court can only declare the result of the election based upon whether or not the procedures set out in the scrutiny, for example, were completely fulfilled. In our submission, sections 7 and 24 are also - - -
HIS HONOUR: But can this Court do other than arrive at the result which ought to have been obtained had the Act been followed?
MR BARLOW: It must have regard to whether the provisions of the Act which bear upon the choice of the electors have been followed, yes, your Honour. I would qualify it in that way. Your Honour, we submit that those sections of the Constitution have a bearing on the circumstances in which under the Act this Court should completely void the election. It should only do so in the most extreme circumstances, where there is no other effective choice, when it is satisfied that the result is likely to have been affected by those actions or omissions in breach of the Act.
There are good reasons in both policy and principle for only declaring an election void in the most extreme circumstances. Doing so defeats the choice of all the electors – in this case, not just of the electors whose ballots have been lost – if the Court were to say that it could not take into account the records of those ballots. An election, of course, is a major, disruptive and expensive - - -
HIS HONOUR: I do not need any persuasion that making an order declaring the election void is a large step.
MR BARLOW: It could cause significant prejudice to the candidates and everyone else, your Honour.
HIS HONOUR: There are consequences, of course. I understand that. I do not think I need persuasion of the fact.
MR BARLOW: If your Honour pleases. I might note solely this in that respect then, your Honour, and that is, to declare it void and to require a fresh election would in one sense disenfranchise electors in the original election, those electors who are no longer electors in the State and it would enfranchise people who were not electors at the time. That is another reason for it being a completely different election. In our respectful submission - - -
HIS HONOUR: It is politically different, costly, time, effort - - -
MR BARLOW: Yes.
HIS HONOUR: I understand all those facts.
MR BARLOW: We submit then, your Honour, that the Court should strive to avoid declaring the whole election void but, rather, to declare elected those candidates who it is persuaded on the whole of the evidence were properly elected. We do not intend, your Honour, to address your Honour – you will be pleased to know – at length on the question of what is the meaning of “prevented from voting”. We adopt, with respect, the submissions by our learned friends for the Liberal candidates and the Labor candidates. We simply will add a few points to those, if we may.
Part of it comes, as your Honour has been told, from the structure of the Act. We submit that is a strong point in favour of voting being only those acts of electors that are undertaken under Parts XV, XVA and XVI of the Act, which are postal voting, pre-poll voting and the polling. The acts of electors did not involve the acts of electoral officers and those sections do not involve acts or require acts of electoral officers except insofar as they would assist the electors to mark a ballot paper by, for example, initialling the ballot papers, complying with those procedures, giving a ballot paper to an elector and, in certain cases, assisting the elector to vote where they are blind or otherwise disabled.
Your Honour, we also submit that section 367, to which some reference was made yesterday, supports the construction of section 365 for which we and our learned friends have contended. That section was, of course, introduced at the same time as 365, as your Honour noted yesterday, but it is restricted to a very particular circumstance, a circumstance which we would submit is a subset of being prevented from voting, namely, when an elector turns up at a booth and is not permitted by an official to vote.
HIS HONOUR: That is a subset. I understand that point. What is the larger set? How far does prevented from voting extend if not permitted to vote within 367 is a subset?
MR BARLOW: It would extend, for example, your Honour, to being prevented from voting by being given the wrong ballot paper, as has occurred in the past, or being prevented from voting. They are being permitted to vote, and I think our learned friend, Mr Donaghue, said this yesterday; it might have been someone else. It would extend to being given an invalid ballot paper, such as one that has not been properly initialled; whereas not being permitted to vote would be restricted to the circumstances set out in (a) and (b) of section 367.
HIS HONOUR: This may or may not in the end prove to be important, but I do need, I think, to understand your submission about prevented. Not permitted for 367 purposes you say is a subset of prevention. Is that correct?
MR BARLOW: Yes, your Honour.
HIS HONOUR: Prevention includes, for example, wrong ballot paper. You then gave, I thought, the example of the either uninitialled or wrongly initialled paper. Is that right?
MR BARLOW: Yes, a ballot paper that, though deposited, has no effect by reason of the error of an official.
HIS HONOUR: Once you go down that path are you not prevented from voting effectively?
MR BARLOW: We say you are prevented from voting, your Honour, and you are prevented from voting effectively, yes. There is a step that prevents your vote. It is taken before your vote that has prevented your vote – in other words, your choice – from being possibly taken into account at all, and it is a step that is taken before you voted, before you completed your ballot paper. It has prevented you from completing a ballot paper.
HIS HONOUR: Lord Coleridge in his judgment gave some extreme examples, so on that footing can I give an example which I think is properly described as extreme. Assume an elector presents at the polling booth, is given the paper, properly initialled, goes to the appropriate place, marks it, comes back, puts it in the box and is about to turn away when he or she notices that the official concerned reaches in and pulls out the paper - as I say, an extreme example and I hope entirely fanciful - and assume that the elector observes the official tear it up. We are having extreme examples; let us at least make them colourful. In such a case is the voter prevented from voting?
MR BARLOW: Yes, your Honour, because his ballot has not been deposited in the box. He has been prevented from having his ballot deposited in the ballot box, which is part of voting under the polling section in part of the Act.
HIS HONOUR: Let it next be assumed that, through the carelessness of the voting officials, the ballot box is stored next to an open wood fire and the ballot box catches fire, destroying all the papers within it. Are the voters in that case prevented, through error or omission of the official, from voting?
MR BARLOW: We would submit not, your Honour.
HIS HONOUR: Mr Donaghue draws the boundary at the point of the elector having done all that he or she can within his or her power to complete what he or she has to do to vote. I think I capture it accurately; I hope I do. Where do you draw the boundary? It seems to me you are drawing it slightly differently.
MR BARLOW: I do not, with respect, submit that we are drawing it slightly differently – in this sense, your Honour. The first example your Honour posited of the electoral official taking out the ballot is effectively the same as the ballot not having been put in. The second example of the fire is as a result of the ballots not having been properly maintained – or whatever the word is under the section – as has occurred here, as an illegal practice, which may have affected the result of the election. That is something for the Court to determine at a later stage.
HIS HONOUR: Like all questions of statutory construction you are drawing a line. The examples which are given fall one side or other of the line. The question is where should the line be drawn. As I understand it at least several of the parties assert the line is drawn by identifying has the elector done all that he or she can do within his or her power to submit a ballot paper.
MR BARLOW: Yes.
HIS HONOUR: A competing point of view is perhaps, perhaps not, this notion of official error interfering with consideration in final scrutiny. That is a battleground and it is a question of which is the better construction.
MR BARLOW: Yes. Your Honour, we submit that section 367 assists in the construction because the word “vote” is used in the same manner in each of those sections, we submit. That is made evident, if nothing else, if not just the words, from the debate in Parliament when they were introduced. Could I ask your Honour to turn to page 275 of the legislation bundle? This is the Senate. The House of Representatives made similar points.
HIS HONOUR: This is Senate on what date?
MR BARLOW: This is the Senate on 26 July 1922, your Honour. At page 752 of Hansard, in the first column your Honour will see the commencement of the discussion of Kean v Kerby about halfway down the first column on that page.
HIS HONOUR: Yes.
MR BARLOW: It is clear, as has been already submitted, your Honour, that the introduction or the amendment to the predecessor to 365, as it then was, ignoring the proviso, was undertaken in order to align the law with that of the United Kingdom. The proviso, as it says, starting at the bottom of the first column, was to bring it into line. The proviso, we would submit, is what is being dealt with in the words from “and to prevent”. That is something beyond what was in the English law. The proviso was to prevent evidence being called as to the way in which an elector intended to vote at an election. We would submit, in fact, that that might actually misconstrue what it says. It is to prevent an elector saying not only, “This was the way I intended to vote” but sometimes, “This is the way I voted”.
Then he, the Minister, goes on to discuss what is now section 367, your Honour. Your Honour will see that it is directed to someone turning up at a ballot booth and being told, “You can’t vote”. They have to show that before they can give evidence that they turned up and could not vote they have to satisfy the judge of their entitlement to vote and that they made a claim to vote and otherwise complied with the requirement. So they are trying to limit the circumstances in which someone can come along and just say to the court, “Look, I was prevented from voting because I turned up and I couldn’t vote”. They actually have to go and show a bit more before they can give that evidence. That was the purpose of 367. It was to do with the circumstances prior to voting in the sense of completing and depositing one’s ballot paper.
HIS HONOUR: What I do not understand is if the 1922 amendment by insertion of the proviso to 365 and the change in wording to 365 that was effected in the 1922 amendment – that is to say, if section 25 of the 1922 amending Act had the effect which you and others contend for, why the need to make 194(a) in what I think became section 26 of the Bill? Let us talk in terms of the current Act; it is easier. What is 367 doing if 365 bears the meaning that, as I understand it, you and others would assert? Is it just legislative belt and braces?
MR BARLOW: No, your Honour, it is saying here is one method of being prevented from voting about which you cannot give evidence unless you satisfy certain qualifications.
HIS HONOUR: That is “prevented from voting” is more than being refused a ballot paper?
MR BARLOW: Yes. But if you were prevented from voting either in that way or another way you cannot come along and give evidence of how you would have voted. You can only say, “I turned up and I was prevented - - -
HIS HONOUR: “I was prevented”.
MR BARLOW: Yes. That is the marriage between 367 and 365; 365 extends further than 367 and 367 is only addressing one particular method by which someone might assert that they were prevented from voting. A very simple method for people to have come along and assert but they need to actually satisfy the judge of certain other things before they can make that assertion, whereas other ways of preventing someone from voting might be, as I have submitted already, failing to initial the ballot paper.
HIS HONOUR: One would have thought that if someone was giving evidence, “I was prevented from voting”, that the matters dealt with in 367 might have been necessary pieces of evidence to adduce to establish.
MR BARLOW: That might be right, your Honour, but your Honour will see that the Minister said it is necessary to tighten up the Act as regards the admission.
HIS HONOUR: Yes.
MR BARLOW: Whether or not they needed to that is what they thought they had to do, your Honour.
HIS HONOUR: Yes.
MR BARLOW: It is the way in which they were prevented and it is only in that circumstance that that section applies.
HIS HONOUR: Yes.
MR BARLOW: Your Honour, we adopt the submissions of Mr Donaghue that Woodward v Sarsons is not relevant and it was not in the consideration of Parliament when they enacted the proviso to section 365, rather the circumstances of Kean v Kerby were in the Parliament’s purview. There have been reasons suggested for it, your Honour, the purpose of the proviso. Principally, I think it has been suggested that it is to preserve the secrecy of the ballot.
We submit that the principal purpose is clearly to avoid unreliable evidence being given, namely, retrospective evidence orally about “what I would have done had I not been prevented from voting”. That is completely different from the type of retrospective evidence which a ballot paper – an informal ballot paper, perhaps – would show or which in this case, in our submission, the records of the fresh scrutiny and the original scrutiny would show.
Your Honour, in our written submissions we have posited three possible meanings for the phrase and then attempted to construe what we understood the AEC to be positing as the meaning. Your Honour has, with respect, we suggest, posited a slightly different meaning but which is, in effect, similar to, if not the same as (d), the AEC’s contention.
HIS HONOUR: I am sorry, which paragraph in your written submissions?
MR BARLOW: I am sorry, paragraph 6 of our written submissions on the second page, your Honour.
HIS HONOUR: Now, what is the difference between (c) and (d)?
MR BARLOW: Well, (d) is one which has been considered or scrutinised but it may not have been included if it has been wrongly – or if it has been declared informal, considered to be informal or it does not have initials, that may be a reason for it being informal or otherwise because it has not been completed correctly.
HIS HONOUR: So (c) and (d) are intended to distinguish between ballot papers that are marked informal and those that are not, is it?
MR BARLOW: That would include – fraudulent counting, we would submit, might be in (c) but might not be in (d).
HIS HONOUR: Yes.
MR BARLOW: Your Honour, construction (c) is that which one might adopt if the AEC were right that in 1922 the Parliament was acting upon an apparently well-settled meaning of the phrase derived from Woodward v Sarsons. We adopt the submissions of Mr Donaghue that there was not any such settled meaning and Parliament did not act upon it but if we were wrong about that then construction (c) is the result.
Assuming that the proviso then prevents the reception of all possible evidence of intention including ballot papers, construction (c) is not open having regard to the Act as a whole and in particular the Court’s power under section 361 to inquire into whether votes were improperly rejected or admitted.
HIS HONOUR: I am sorry, explain that? What is the point?
MR BARLOW: I am sorry, what is the point did your Honour say?
HIS HONOUR: No. I need to understand better the point you are making. I do not understand the point you are making is what I am trying to convey. I am not suggesting it is your fault.
MR BARLOW: I am sure it is, your Honour.
HIS HONOUR: Do not assume that.
MR BARLOW: Your Honour, the point is probably better set out in paragraph 37 of our submissions on page 10 of the numbered pages, which is page 11 of the document filed. I would simply invite your Honour to read that.
HIS HONOUR: Yes.
MR BARLOW: Your Honour, in our submission, the words, the structure and the history of the Act do not allow for either construction (c) or (d) or your Honour’s construction and if I could just address the words first. If Parliament intended that section 365 apply to electors who were prevented from casting a vote which was available for consideration and considered in the determinative scrutiny, or, as (d) says “which is scrutinised in the final count” then it would have been easy for it to make that very clear in the words by saying that if, for example, “by an official error or omission an elector is prevented from voting or an elector’s vote is not counted in the determination of the result then evidence of how the elector intended to vote or voted is not permissible”. It did not use those words nor any similar words, in our respectful submission.
HIS HONOUR: Yes. In your outline of oral argument you suggest that “prevented from voting with effect” which would, I think, be an unusual form of drafting in that it conjures up a picture of prevented from voting without effect compared with - it is a very odd form of drafting. Now, the point I am seeking to have you grapple with is not some pick about the drafting. The underlying point is deeper than that. It is, according to ordinary usage, is it an available construction of the Act to read “prevented from voting” as meaning an official doing things because somebody is preventing, there is official error or omission, consequence of error or omission is prevented from voting. Is an available construction that there is prevention from voting through official act or omission, that is to say, official error, if the voter’s expressed voting intention, which is to say expressed in the ballot paper, is then not taken into account in determination of the result which the Act tells us shall be by scrutiny?
MR BARLOW: Your Honour, in our submission that is not an open - - -
HIS HONOUR: You say it is not an available understanding in ordinary language.
MR BARLOW: In ordinary language, your Honour. There is a distinction in ordinary language, in our submission, between voting and having one’s vote counted and prevented from voting with effect or prevented from voting and having one’s vote considered in the determinative scrutiny or the determinative count - is being prevented from having one’s vote counted which is different from voting, in our submission.
HIS HONOUR: I suspect that the competing view treats voting as something that takes account of – I was going to call the consequence the determination, the making of the choice to which the voting is directed. Now, I think the competing construction depends upon treating “prevented from voting by official error” as embracing account of – the process of decision-making to which voting is direct – one votes at an election not simply for the satisfaction of having your name crossed off the voter’s list. One should vote at an election for the purposes of expressing a choice as to who should be returned as the candidate concerned.
MR BARLOW: Yes. Well, in our respectful submission your Honour’s very discussion demonstrates that there is a difference between, in ordinary parlance or usage, the voting by an elector and what happens with that vote once it has been recorded. Once it has been recorded and deposited in the ballot box what happens goes towards whether it is actually taken into account and the choice is given effect but the choice has been made by the elector at the time the elector deposits the ballot paper.
HIS HONOUR: I am not sure that fits with “directly chosen by the people” but we have had that debate.
MR BARLOW: Yes. Your Honour, there is no apparent purpose for restricting the evidence in the way that construction (d) would.
HIS HONOUR: If there is a purpose – and I do not say there is – if there is a purpose, it is determining the effect of official error by reference only to numbers, but the numbers that have been excluded are to be taken as what is to determine whether the result was affected, but numbers matter.
MR BARLOW: Certainly the numbers matter, but we would submit, your Honour, that is not the purpose. It is the effect of the proviso, the purpose being to stop false or potentially false evidence which would affect it. To take one last example, your Honour, which is close to this case; if the ballot papers that have gone missing were found last week, or today, in a locked filing cabinet and officers of the Electoral Commission said, “Yes, I put those in there. They have been locked in there. I have had the key. No else has had access to it - - -
HIS HONOUR: Yes, the true relief that this Court would give would be a re-count. It would not make a declaration. It would order a re-count; that is to say, a re-scrutiny of all of the available papers. True?
MR BARLOW: It might, your Honour, but an alternative - - -
HIS HONOUR: What other relief would it give in such a case?
MR BARLOW: The alternative, your Honour, would be save that on construction (d) it could not happen, that the Court would look at those papers and - - -
HIS HONOUR: No, it would declare that the result of the election had been affected, but the relief it would give, having now available the whole of the class of available papers that were to be re-counted, direct a re-count.
MR BARLOW: No, in our submission, the appropriate course in those circumstances, which construction (d) does not allow, would be for the Court to look at those ballot papers to see if the result of the election was affected by the AEC’s failure to take those into account when it declared that result.
HIS HONOUR: Thereby depriving the candidates of the opportunity to have votes reserved - papers reserved, the consideration of the AEO and the Court under 283, look at the decisions made on reservation – 281, I am thinking of. You would have the Court foreshorten the processes which the Act prescribed, but if things were different, things would be different. We have not got the papers.
MR BARLOW: No. Your Honour, even if one adopted the broader meaning of “prevented from voting” which is contended for by the AEC or which your Honour posited yesterday as being prevented from casting a vote that is actually considered in the determinative scrutiny, the clear purpose of the proviso remains to reject what would clearly be unreliable evidence; oral evidence of voters saying how they would have voted, or possibly even how they did vote by depositing their ballot papers. The proviso says nothing about, and does not prevent access to records of how voters in fact voted such as the ballot papers themselves or other evidence of those ballot papers, the other evidence in this case, of course, being the AEC’s record.
HIS HONOUR: But if it prevents the voter coming along and saying “I voted this way” or “I intended to vote that way” and the papers are lost – you cannot know whose papers are lost – how then are you permitted to look at what the relevant electoral officials at an earlier stage in the process thought was revealed by the paper?
MR BARLOW: Because those reveal the numbers, your Honour, and the Court needs to determine whether those numbers and the number of lost ballot papers – even if you cannot determine what those ballot papers said by reference to these records – whether the loss of those ballot papers was likely to have affected the result.
HIS HONOUR: Now, it is a necessary premise of your petition, is it not, to establish that there were illegal practices that affected the result of the election?
MR BARLOW: Yes, and we contend for two illegal practices, your Honour. One is the loss of the missing ballot papers, and the second is the incorrect determination of formality or otherwise of ballot papers subject to challenge.
HIS HONOUR: If the AEC is right and if the first of your submissions is right, why would I get to the second of your submissions?
MR BARLOW: Because, your Honour, in order to determine whether that illegal practice was likely to affect the result of the election - - -
HIS HONOUR: But by hypothesis, if the AEC is right and if your first submission is right, I have concluded that the illegal practices constituted by and associated with loss of the papers affected the result, why do I get to the second set of questions?
MR BARLOW: In our respectful submission, your Honour cannot conclude that the loss was likely to affect the result without looking at the ballot papers for reasons which I intend to elaborate. Your Honour, in our submission, the records of the original and fresh scrutinies are relevant and can be taken into account - - -
HIS HONOUR: For determining which issue or issues?
MR BARLOW: For determining whether the loss of the ballot papers did affect or was likely to affect the result of the election, and for determining in those circumstances whether it is just to declare that the returned Senators were not duly elected and that the non-returned Senators were duly elected.
HIS HONOUR: I am sorry, I know we are a day and a half into this, but I am obviously being slower than normal. You can get no relief for your client unless you upset the return that was made, is that right?
MR BARLOW: Yes.
HIS HONOUR: It is in your client’s interests to say that the return that was made to the writ and the declaration that was made is wrong, is that right?
MR BARLOW: Yes.
HIS HONOUR: In particular, you have to say that the candidates returned as 5 and 6 were not duly elected, yes?
MR BARLOW: Yes.
HIS HONOUR: You have to say, if you are to achieve that result, that the result was affected.
MR BARLOW: Yes.
HIS HONOUR: In that respect, you make common cause with the AEC.
MR BARLOW: We say the failure to take into account the ballots which were lost was the illegal act which affected the result of the election, but the loss itself did not - - -
HIS HONOUR: But if that is right, why do I go on?
MR BARLOW: Well, we say it is likely to be affected, your Honour, and when one then takes into account the ballot papers, that shows you that it is likely to be affected because we would contend that when one takes into account the challenges to the ballot papers, the result is different from that which has been declared.
HIS HONOUR: Yes.
MR BARLOW: Now, in determining whether the loss of the ballot papers was likely to affect – one has to look at them together, in our respectful submission - - -
HIS HONOUR: Why? That is my question. Why do I have to look at them together?
MR BARLOW: To determine what is the just result.
HIS HONOUR: That I understand. What I do not understand – that is, you have to hook this, do you not, into the “it is just” provision of 362(3)?
MR BARLOW: In our submission, in likelihood has to be assessed in the light of all the illegal practices that have been alleged.
HIS HONOUR: Well, I cannot get to differential results between the AEC petition and yours, can I?
MR BARLOW: It may assist your Honour if your Honour looks at the assertion that is made by Mr Wang as set out in the statement of agreed facts, paragraph 61.
HIS HONOUR: Yes. Those are assertions that, among other things, there were errors made on the re-count, that if the re-count had been conducted properly, the result would not have been as returned; step one. You want to go further than that and say that the result that should have been returned would be the return of your client, and as it happens, also Senator Pratt, but that is beside your interests.
MR BARLOW: Yes.
HIS HONOUR: Yes, I understand that.
MR BARLOW: To determine that one can look at the records of the missing ballot papers, but even if one could not, our contention is that the errors in determination and the re-count have affected the result and the - - -
HIS HONOUR: But it reinforced the conclusion which you otherwise urge that the loss of the papers affected result.
MR BARLOW: When you look at them together, your Honour, the loss did not affect the result, is our submission. If one looked solely at the - - -
HIS HONOUR: If you are to get any relief on your petition, you have got to unpick the result.
MR BARLOW: Yes, your Honour, yes, but the loss of - - -
HIS HONOUR: So do not stand there and tell me that all of the errors did not affect the result.
MR BARLOW: No, not the errors, your Honour. The errors, we contend, affected the result. The loss of the ballot papers by itself did not affect the result. The loss of the ballot papers by itself, one might say, was likely to affect the election. If that were the only illegal practice that were alleged, your Honour would say, I have no idea. It is likely to have affected the result because the result was so close - - -
HIS HONOUR: I understood you to urge that. Do you or do you not make that submission?
MR BARLOW: It is an alternative submission that we make, your Honour. Our primary submission is it was not likely to affect the loss of the ballot papers, and indeed did not affect the result when one takes into account the true margin as can be determined by looking at the ballot papers between Mr Bow and Mr van Burgel at the 50th exclusion point.
HIS HONOUR: I tell you frankly, Mr Barlow, I simply do not understand that submission. I invite you to reconsider it and come back after lunch. You should continue with your argument, but you should come back after lunch and put the submission to me again so that I may have a better opportunity of understanding it than I presently do. The fault, I am sure, is mine. I am not intending to be critical of you, I am not critical of you, but I do not understand the proposition. I need to have it explained to me in very small baby steps, and I suggest that that would be better done at 2.15 when you have had an opportunity to consider the point without me staring balefully at you. Perhaps we might go on to other aspects of the submission.
MR BARLOW: Yes, if your Honour pleases. Your Honour, in our submission, the original and fresh scrutiny records can be taken into account when one takes into account the Court’s role which is contrasted with the role of scrutineers in a scrutiny. In our respectful submission, the Court is not involved in a scrutiny. The Court is involved under section 361 of the Act in reviewing decisions of officers and determining whether electors’ votes were improperly admitted or rejected. It does that as expressed in section 281 by considering the reserved ballot papers, and it is limited by section 281 to considering only the reserved ballot papers. It considers them, corrects if necessary the decisions of the electoral officers in conducting the count, or in this case the re-count, and then determines having regard to its decision on whether or not they made errors – it alters the margins and sometimes, if one of our contentions were successful, the result of the declaration.
What, in our respectful submission, the AEC seeks to do, and Senator Ludlam, is to make section 263, which says of course that the result of the polling shall be ascertained by scrutiny, trump section 364 when the Court is performing its role. It requires the Court to blind itself to readily available facts notwithstanding the clear words of section 364. We submit that that is a construction which the Court should examine closely because on general principle, that is attempting to limit what is clearly a broad power in section 364. The clear command under that section must, in our respectful submission, prevail over an implication on the limits of the evidence that can be brought before the Court, drawn from section 263.
Section 263, in our submission, is not directed to this Court. It is directed to the process of scrutiny that is provided for in great detail in that part of the Act dealing with scrutiny. We have identified in our written submissions at paragraph 21 the main sections that we say demonstrate the distinction between the process of scrutiny by electoral officials and the process of disputing an election or return before the Court. Section 263 addresses the process of scrutiny while, in our respectful submission, section 364 allows the process by which this Court may determine disputes as to the result of an election or return. I am not going to take your Honour to those provisions now, but I draw them to your attention in general.
HIS HONOUR: Yes.
MR BARLOW: Your Honour, counsel for Senator Ludlam referred to references to the Court having been conducting a scrutiny in passages from Rogers on Elections, Blundell v Vardon and Cole v Lacey. In our submission, Rogers and Blundell refer to different procedures under different legislative provisions that at the time did involve a court in a re-count in all occasions and Cole was a case in which a re-count of all votes cast in the Senate in Tasmania was sought and a re-count is not what is sought in any of the petitions before this Court.
Your Honour, section 364 has a very long history. It dates back, so far as we have found, at least to 1843 in New South Wales. We have prepared a small bundle, your Honour, together with a cover sheet which shows the legislative history of section 361 and section 364.
HIS HONOUR: Thank you.
MR BARLOW: If we could hand it up to your Honour.
HIS HONOUR: You have a number of copies that can be - - -
MR BARLOW: I have distributed it.
HIS HONOUR: Yes, and for transcript as well. The transcribers need it.
MR BARLOW: I have managed to hand up two now, your Honour. We will get some more if necessary.
HIS HONOUR: If at lunchtime you can make sure that one is available.
MR BARLOW: Yes, thank you, your Honour. I will only take your Honour - - -
HIS HONOUR: Now, what am I getting out of this, that aequo et bono clauses are longstanding in Courts of Disputed Returns legislation.
MR BARLOW: And that they are directed to – particularly, your Honour, if your Honour looks at the first of the tabs which is the New South Wales Act in 1843. If your Honour looks at section 42 which is part of the precursor to 364, it talks about directing oneself to:
the best evidence that [the court] can procure or that is laid before them whether the same be such evidence as the law would require –
Now, those words are not in section 364 but, in our respectful submission, when one looks at that and section 48 which is that it:
be guided by the principles of good faith and equity - - -
HIS HONOUR: But what do I get out of that fact, that these are long historical pedigrees? What does that matter - - -
MR BARLOW: Your Honour, that 364 is directed towards the best evidence available being taken into account by the Court, whether or not it would be otherwise admissible if it is relevant to the question before the Court. Our learned friend, Mr Donaghue, this morning noted that a partial re-count would have been available in this case, was in fact undertaken, would have been available had it been known before the re-count was ordered that some of the votes had gone missing and that in those circumstances records of prior scrutiny would have been taken into account, quite properly, in the declaration of the election.
HIS HONOUR: If things had been different things would have been different.
MR BARLOW: But if those types of records can be taken as reliable and relevant to determine the result of the polling in those circumstances, then, in our submission, they are relevant and the Court can determine whether or not they are reliable in a further hearing for the purpose of the Court deciding whether or not to declare the result of the election void or to declare a different result of the election.
HIS HONOUR: Well, it is more than just declare a different result. Relevantly, you have to obtain, do you not, declarations that five and six were not duly elected?
MR BARLOW: Yes.
HIS HONOUR: And if you are to do other than get a general declaration of avoidance of the election, you have to go further and have me declare that your client and Senator Pratt were duly elected.
MR BARLOW: Yes, your Honour.
HIS HONOUR: Much then turns upon what weight, if any, you are giving and what meaning you are assigning to the phrase “duly elected”.
MR BARLOW: Yes, and, your Honour, we would submit that that means elected in accordance with the apparent intention of the electors as determined in accordance with those sections which bear on the direct choice of those electors, not in accordance with strict procedural steps that had to be undertaken.
Your Honour, all parties accept that the Court is permitted to consider the reserve ballot papers. There are differences as to the power under which provisions of the Act under which that power is granted. Some parties say it is principally section 281. Our respectful submission is that it is principally section 361, which is then limited by section 281 and, of course, it is in the context of a petition under section 353 to the Court under section 354. Excuse me, your Honour, I am just making sure I do not repeat things I have said.
HIS HONOUR: There is ever so slight a chance that I might point that out to you, Mr Barlow.
MR BARLOW: Your Honour, really. The question then becomes the relevance and necessity, of course, of examining, as we said, ballot papers. Your Honour, that is probably the point at which your Honour asked me to come back after lunch. It may be appropriate to - - -
HIS HONOUR: Well, Mr Barlow, I am in your hands, of course. According to your opinion as to the importance of it and according to your opinion as to the value of having an opportunity to consider it, I will either adjourn now because we are running well ahead of time and come back at 2.15 or go on, but I am in your hands. All I say to you is I do not understand the position that obtained. That is my fault. I do not want to leave tonight without understanding what your position is.
MR BARLOW: Yes, I understand that, your Honour.
HIS HONOUR: Now, which course would you prefer me to adopt?
MR BARLOW: I would ask your Honour to adjourn early.
HIS HONOUR: By all means. Before I do, Mr Bell, will you be doing the reply?
MR BELL: Yes, your Honour, but I do not expect to be – I certainly do not expect to take up the 45 minutes. It may be 20 to 30 minutes at this stage.
HIS HONOUR: But we are well within time. Very well, if I say 2.15.
AT 12.38 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.15 PM:
HIS HONOUR: Yes, Mr Barlow.
MR BARLOW: Your Honour, thank you for the additional few minutes of the luncheon break. I hope that I have put my time to good use. Could I put to your Honour four propositions which will make clear the submission I was attempting to make briefly in the latter part of this morning? First of all, your Honour, there are of course three petitions before the Court which seek different relief. Essentially, the AEC seeks to have the election declared void altogether and Mr Wang’s and Mr Mead’s petitions primarily seek a declaration of a different result of the election.
Now, in those circumstances where the Court is facing three petitions seeking competing relief, there is of course no direction or prescription in the Act of how the Court should deal with it and your Honour has ordered that they be heard and determined together. In our submission – this is all proposition one – because voiding an election should be the last resort, the logical course is for this Court to deal with the contentions made in the Wang and Mead petitions first, which means that it would be necessary and relevant to look at the ballot papers that are reserved.
The second contention, your Honour, is that if, as is effectively happening, these petitions are heard together, the effect of the missing ballot papers on the result of the election cannot be determined without deciding the challenges to the reserved ballots because if Mr Wang and Mr Mead are successful in their challenges, which currently number 251 but may number more, it is not likely on whatever standard “likely” means that the missing ballot papers affected the result of the election.
The third proposition, your Honour, is this, that the result of considering the reserved ballot papers is also relevant to what relief would be just because if the Court were satisfied that Mr Wang and Senator Pratt were duly elected, it would be unjust to void the election and it would be just to make the declarations that would effectively change the result.
Now, can I interpolate there, your Honour, a little bit more on what is “duly elected”? “Duly elected”, in our submission, means elected in accordance with the sections of the Act which give effect to the choice of the electors and relevantly there are only two, in our submission.
Section 268 which determines which ballot papers are – what type of ballot papers will be informal, and section 273 from subsection (8) onwards which determines how preferences are to be allocated in a Senate election. That is supplemented by section 273A dealing with the computerisation of doing that. Effectively, those are the provisions which determine the choice of the electors.
The other provisions under the scrutiny, Part XVIII of the Act, your Honour, deal with the formality and the procedures necessary – or that the electoral officers have to follow in order to get to the stage of giving effect to the choice by reason of those sections. No one suggests that there are other errors than those that are referred to in the petitions, of course. Our submission is that your Honour can be satisfied that the missing papers could not have sufficient, if any, errors to affect the result.
HIS HONOUR: Sorry, put that last sentence again. What was it?
MR BARLOW: Your Honour can be satisfied that the missing ballot papers would not – sorry, that there would not have been sufficient, if any, errors in dealing with the missing ballot papers to affect the result of the election. I intend to demonstrate why that is the case, your Honour.
The final proposition leading to the demonstration is this. The loss of the missing ballot papers of itself would only be likely to affect the result of the election if Mr Wang and Senator Pratt fail to establish the correctness of their challenges, including any additional challenges that might be made to the reserved ballot papers. That would be because in that circumstance, as it currently is postulated, the margin between – the crucial margin at the 50th exclusion point was so narrow that this Court would have to be satisfied that the loss of the ballot papers was likely to affect the result.
HIS HONOUR: That last proposition is on its face to my mind logically incoherent. It is logically incoherent because it is referring to a result I think in part as some hypothesised artificial correct result and in part it is referring to a result as that which was declared. If you slip in your use of terms in the course of the proposition, logical incoherence ensues.
MR BARLOW: The loss of the ballot papers of itself would only be likely to affect the result in circumstances which are before the Court without the challenges being determined, where there is only a very small margin – 12 votes. Could I try to demonstrate these propositions, your Honour, by taking your Honour to the numbers which you will have no doubt seen with some apprehension at the back of our summary this morning?
HIS HONOUR: Yes, pursue such course as you think necessary.
MR BARLOW: I would ask your Honour to open that page, the last page of our outline. There are a number of – I will first step your Honour through this - the numbers that are within the square lines or the rectangular lines at the end take into account the records of the 1,370 ballot papers. The total votes that were cast in the election were 1,348,797. This is of course in Western Australia. On the re-count, your Honour, Mr van Burgel – and this is excluding the records of the election but on the re-count – sorry, the records of the missing ballot papers - on the re-count Mr van Burgel had 23,526 votes, which was 1.744 per cent of the total number of votes cast in the election.
The above the line gain on the re-count was 1,759. These are the figures from the agreed statement of facts. We have put the paragraphs of that agreed statement in at the end of each of those lines, your Honour. The informal gain was 1,034 votes and the informal drop was 710 votes. Now, we have put percentages of the votes cast to the right of those rows and I will come to the reason for that later, your Honour.
Now, if one looks under “Scenarios”, the margin as a result of the re-count was a margin of 12 against Mr Bow, but assuming that the challenges to the reserved ballot papers number, as they do currently, 251, and assuming that they were all successful, then Mr Bow would have a margin – again disregarding the record of the missing ballot papers – of 239.
Now, what that means, your Honour, is that for Mr van Burgel to have a greater margin there would have to have been 240 additional votes among those 1,370 in favour of Mr van Burgel. We have made a stepped series of assumptions to get to that stage, your Honour. First of all, because the margin would be 239 in scenario (A); he has to get 240 to beat that.
Now, a number of scenarios might be if you took into account the records – first of all, take into account the records as they are. Scenario (B) makes the margin in favour of Mr Bow 252. But if one were to assume that all of the votes in favour of Mr Bow, the 18 votes out of those 1,370, were actually informal, so there were some errors in the records or in the determinations, Mr Bow would have no votes, Mr van Burgel would still have five votes and if we succeed in all our challenges the margin would be 234.
Assuming that all the 120 informal votes were in fact formal and in favour of Mr van Burgel, which is scenario (D), Mr van Burgel would have received 125 votes, but the margin if we succeed in our challenges would be 114. It would then be necessary for Mr van Burgel to be able to persuade the Court that 115 additional votes were wrongly counted in favour of other candidates out of the 1,370 and should have been counted in favour of him. For Mr van Burgel to win the – at the exclusion point with a margin of one which is of course the – the margin of one is the result reached in a different way of the notional re-count which the AEC refers to.
Now, we submit that it is so implausible – it would be so implausible, we would be submitting – if we were successful in our challenges that it would be so implausible that Mr van Burgel would win that this Court could be satisfied that the result of the election was not likely to have been affected by the loss of the votes.
HIS HONOUR: Which result? The result as declared or some hypothesised other result?
MR BARLOW: That the result as declared would not have been affected by the loss – was not likely to have been affected by the loss.
HIS HONOUR: If the result as declared was not likely to be affected by the loss, your petition fails, does it not?
MR BARLOW: No, your Honour, because – our petition succeeds because the result as declared was affected by the incorrect classification of the challenged and reserved ballot papers.
HIS HONOUR: So much of the claims as is made in your petition as depend upon illegal practices constituted by loss of the votes would fail. Is that right?
MR BARLOW: That part - that is correct, your Honour, but we would succeed on our petition - - -
HIS HONOUR: Do you press so much of your petition as depends upon allegations of illegal practices constituted by loss of votes?
MR BARLOW: Yes, we do, your Honour, because in the alternative we say if we were not successful in our challenges then the result of the election was likely to be affected by the loss of the ballot papers. But if we are successful in our challenges, it could not have been affected by the loss of the ballot papers.
Your Honour, we try to demonstrate this again in the numbers at the bottom of this page which demonstrate, in our submission, that the discrepancy between the necessary ATL gain, informal gain and informal drop between the 1,370 votes that would be necessary to overcome the challenges and those figures that were, in fact, the case on the re-count, at the top of the page, were so great that the Court could not accept that those figures could possibly have been derived from 1,370 votes.
That is taking into account the records. If one did not take into account the records and one knew only that 1,370 votes had been lost, Mr van Burgel would have had to have obtained from those 1,370 votes an additional 240 votes, which is 17.5 per cent of the vote, when he only got 1.74 per cent of the vote on the re-count, in order for him not to be excluded. If we succeed on our challenges, 251 challenges, so there becomes a margin of 239 - - -
HIS HONOUR: That is a combination of all challenges, not just yours, is it not?
MR BARLOW: I am sorry; I meant we and Mr Mead.
HIS HONOUR: Yes. So you are advocating, are you, a result in which you go beyond what you allege - - -
MR BARLOW: No, your Honour, we have alleged at least a certain number of challenges - - -
HIS HONOUR: I see.
MR BARLOW: It would be necessary, probably - - -
HIS HONOUR: “At least” is doing a lot of work, Mr Barlow.
MR BARLOW: We are making these propositions, your Honour, on the basis that only that number of challenges is made between Mr Mead and Mr Wang. We accept that if none of them succeed then a fresh election should be ordered. Your Honour, this does, in a sense, look at statistical evidence. It might be said against us that no court has ever looked at statistical evidence. The statistics between what occurred in the re-count - - -
HIS HONOUR: It is not looking at statistics at all; it is taking numbers and putting them into a table. That is not statistics.
MR BARLOW: The statistics are the ratio of the percentage in the 1,370 to the general re-count. It might be said that statistical evidence has never been used in this Court, and that is right so far as we can determine, but that is because in no other case has someone with such a low percentage of the vote determined the result of the election. It is completely different from the situation where there might be a low margin between people who have received 30 or 40 per cent of the vote each. The margin for error is much less there than it is in this circumstance. Your Honour, for all of those reasons, we submit that the question should be answered in the way that we have set out in our written outline. Those are our submissions.
HIS HONOUR: Thank you, Mr Barlow. Yes, Mr Bell.
MR BELL: Thank you, your Honour. In our submission, your Honour, a great deal of the substantive argument which your Honour has heard over the last two days is compressed in a single sentence in re Wood. That single sentence is at page 166 of re Wood, about point 9 on the page. It is the “no blemish” sentence:
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.
So much of the argument we have had is contained in the very deliberately, carefully chosen words in that single sentence. Can I highlight that, your Honour. That sentence recognises, as an absolutely fundamental proposition, that the ballot papers are available, i.e., an essential prerequisite for a re-counting, which is necessarily, we submit, what is involved in Mr Wang and Mr Mead’s petition, is the availability of the ballot papers. It is almost too obvious, it goes without saying, but it is glossed over by our friends – not a re-counting of some of the ballot papers; a re-counting of the ballot papers.
The second point: the re-counting involves what is described as the lawful ascertainment of the outcome of the election. Now, fixing first on the word “ascertained” in that sentence, that is the language, unmistakably the language, of section 263 of the Act, the scrutiny provision, which uses that very term, the ascertainment by a counting, or a re-counting here, of the ballot papers, they being available.
The third point is that the ascertainment has to be lawful – lawfully ascertained. That is, in our submission, entirely cognate with the notion of duly elected. Somebody is not and cannot be declared duly elected unless the outcome of the ballot has been lawfully ascertained. “Duly elected” means, in our submission, obviously, in accordance with the Act. If authority is required in this context for that proposition, that authority is to be found in two passages in Bridge v Bowen. Your Honour, the first passage is in Justice Higgins’ judgment at page 628. At point 6, the end of the paragraph, his Honour said:
The election and the count and the return were in accordance with the Act ; there was a due election, and Bridge was not “ unduly elected.”
Similarly, Justice Isaacs, with whom, as we know, Justice Gavan Duffy and Justice Rich agreed, at 615, point 4, said:
Now, what the party moving has according to the Statute to do is to make it appear to the Court that Bridge was unduly elected.
In other words, acting in accordance with the statute or not acting in accordance with the statute is the criteria by reference to which due and undue election is determined.
There can be no due election under the Commonwealth Electoral Act unless ballot papers are available to be scrutinised and the procedures contemplated by the Act followed. In this context, we point out that it is conspicuous that none of the respondents have addressed orally the decision of this Court in Re Lack and its emphasis that a re-counting is de novo and, as their Honours said in clear terms in the final paragraph of that judgment, everything that has gone before is “irrelevant”, legally irrelevant. That is a statement your Honour will find in the penultimate paragraph:
The former compliance with it –
the former compliance with the Act –
has become irrelevant.
That is page 11, line 2 and line 3.
HIS HONOUR: An answer that is made to these submissions is made by Mr Donaghue to the effect that look at what was done in Wood. Orders were made in Wood which entailed departure from what the Act required is, I think, the burden of the submission.
MR BELL: In a situation where there was a lacuna in the Act but not a situation where there was - - -
HIS HONOUR: There was no lacuna in the Act, was there? It was simply somebody who had stood for election was not constitutionally qualified.
MR BELL: But there was some analogising with a candidate who had died. There was some analogising of the provisions covering a candidate who had died. The point, in answer to what Mr Donaghue submitted about the orders, those orders did not entail a departure from the fundamental premise that what was happening was the counting and the scrutiny of the ballots, all of which were available. There did not need to be a new election in that case. The fact situation was different. Everything was available. Everything was relevantly intact and a re-counting could occur because of the availability of the ballot papers. The preferences of the electors could be ascertained and distributed according to the directions given and the choice of electors could be ascertained. Not so here.
HIS HONOUR: I think if there is an answer to the proposition it may be that the determination of the result was determination by scrutiny in the light of constitutional eligibility.
MR BELL: Yes.
HIS HONOUR: But that may or may not be an answer. That, I think, is the only available answer you have, is it not?
MR BELL: I think so, your Honour, but it is - - -
HIS HONOUR: The question then becomes is it a sufficient answer?
MR BELL: We say yes. The critical point of difference there, as their Honours emphasise in that sentence at 166, is that the relief was given, and able to be given, in circumstances where the ballot papers were available and the absence of a blemish – that is, the absence of an official error tainting the election. Plain, or implicit, we would submit, in that sentence at page 166 that, were it not so, were the ballots not available, a different course than the ascertainment of the outcome by a re-counting would have been followed.
HIS HONOUR: A lot of the work of the sentence appearing at point 9 on the page at 166 is being done by the word “valid” in the collocation - if the valid choice of the electors can lawfully be ascertained by re-counting.
MR BELL: Yes.
HIS HONOUR: What is spoken thereof as a valid choice is a choice between candidates constitutionally eligible for election, and the valid choice is perhaps a choice between the constitutionally eligible, as indicated according to a ballot paper that may be taken as reading 1, 2, 4, 5, 6, 7 where number 3 was assigned to the candidate not constitutionally eligible.
MR BELL: They were knocked out and - - -
HIS HONOUR: When you have still got 1, 2, 4, 5, 6.
MR BELL: That is so. Also on that page, 166, your Honour, in the previous paragraph at the end, their Honours talk about, by reference to Part XVIII, the ascertainment of the true result of the polling so far as it is consistent with the Constitution and the Act. The Act has been construed and the directions given in light of the constitutional requirement which was violated in that case.
Your Honour, in our submission, the critical absence of the ballot papers has the consequence that the relief sought by both Messrs Wang and Mead cannot be granted. The Court will not be in a position to declare them duly elected, that is to say, elected in accordance with the Act. There is no route, in our submission, by which the Court could lawfully ascertain the true outcome of the polling and therefore reach a conclusion that Messrs Wang and Mead – Wang and Senator Pratt - were duly elected.
This is, in a sense, the key reason why the submissions put on behalf of Mr Mead, an attempt to avoid the problem of the missing votes by starting with the reserve ballots as opposed to the missing votes, cannot succeed. Similarly, we saw in the submissions after lunch by my friend, Mr Barlow, his third proposition assumed that the Court could reach a conclusion that particular candidates were duly elected before considering the impact of the missing votes. There cannot be such an election because there has not been scrutiny of all the votes that were given.
Your Honour, as to the submissions which were advanced by particular parties, particularly Mr Donaghue, in respect of “prevented from voting”, we have a number of short points. The first is that his whole analysis, with respect, falls down at its starting point. As to the starting point, it is based on an inaccurate reading of the key passage in Woodward v Sarsons which is clearly distributive. The examples given are all examples of people being prevented from voting, but what is critical is perhaps, as your Honour pointed out in argument, what is even more critical is how that passage was understood by this Court in its pre-1922 decisions.
There, your Honour – we submit, of course, that the passage itself in Woodward v Sarsons is plain enough and that my friend’s reading is strained, but it is plain beyond measure that Justice Isaacs in Bridge v Bowen at 618 regarded the various examples given in Woodward v Sarsons as all part of the same family, namely, the family of being prevented from voting. That is why he used the expression, the sentence, so much for actual voting, a sentence which plainly connotes that voting has a meaning beyond actual voting.
Actual voting is one type of voting, he is saying. He is saying they dealt with it in these sentences in Woodward v Sarsons, that is actual voting, but there are other – it has an extended meaning or an additional meaning in this context, the effective voting. But they are both categories of voting, that is the point of the analysis; that is the wording. In our submission, your Honour, my friend’s whole thesis and argument kicks off on a misreading of Woodward v Sarsons and, in particular, a glossing over of how that phrase “prevented from voting” was understood by this Court.
Your Honour, in that context, it is notable that at the very beginning of the second reading speech, a passage your Honour has not been taken to so far, Senator Pearce – this is at page 747 of the Hansard, 26 July 1922, says about six or seven lines into the speech:
The Bill is intended to enable those who are properly qualified to vote to record their votes effectively –
and it follows. In other words, the legislature was alive to a notion of effective voting and, as we have seen, the notion of effective voting is there in Woodward, in Chanter v Blackwood and Bridge v Bowen, and he goes on to say that the legislation is addressed to several decisions, earlier decisions of the Court, not only Kean v Kerby. We, with respect, agree with your Honour’s observation that there would have been a certain inelegance in employing the expression “prevented from voting with effect” because of the linguistic questions that in turn would have begged. We embrace that.
As to the submissions made by reference to the facts of Woodward v Sarsons, that submission is ultimately unavailing because here, unlike in that case, again the basic point, there are no ballot papers. No ballot papers to be examined. No ballot papers to be considered or taken into account. Finally, your Honour, we would make this submission. The notion articulated by your Honour in argument that where there is official error result – that is to say, the consequence of that official error is to be determined by reference to numbers – you look at, in a sense, the raw numbers in the context of margins rather than going to individual votes - that notion that the result is to be determined by reference to numbers, in our submission, accords entirely with the approach taken by the Full Court of this Court in Hirsch v Phillips [1904] HCA 4; (1904) 1 CLR 132 and also in Chanter v Blackwood.
Your Honour, the relevant passages are passages we have extracted in our written submissions in-chief at paragraph 54(1) and (2) where in Hirsch v Phillips, for example, in the judgment of the Court, Chief Justice Griffith, at page 142 said:
if this right was denied to a number of persons so entitled sufficient to turn the scale, the petitioner would be entitled to have the election set aside.
And similar observations were made in Chanter v Blackwood. There was not an examination of the intentions of individual votes but the sufficiency of the numbers led to the result, so there is a close affinity between the notion articulated by your Honour in the course of argument and the approach taken in those earlier decisions in this Court. If it please the Court, they are our - - -
HIS HONOUR: Just before you sit down. Mr Donaghue and others gave some emphasis to the fact that looking at the records of the initial and fresh scrutiny, those parties would have it that there are at most 23 votes there recorded which might bear upon the 50th exclusion point. What, if any, relevance do you say that observation has? More generally, what answer do you make, if any, to the emphasis given to that observation?
MR BELL: Your Honour, the answer can be given at two levels, one at principle. The one at principle is that it does not matter what – if one has the margin which you do know and the number of votes affected by the official error, you cannot get into an inquiry about the intention of those voters who were prevented from voting. That has all kinds of potential problems and difficulties and means, in a lost vote context, any result would not be the ascertainment of the outcome of the ballot by scrutiny. That is the answer at the level of principle.
HIS HONOUR: I understand the emphasis you give to ascertain by scrutiny, but I think part of the answer made by those on opposite sides to yours is to say that if 365 speaks, and many of them deny that it speaks in any relevant way, it speaks only in respect of determining or deciding whether official error has – likely to have had an effect on the result, and that the observation of the kind to which I have been referring bears upon what relief the Court can or should give. What do you say about those matters?
MR BELL: We say that the relief sought by Mead and Wang cannot be given because it necessarily involves a re-count which presupposes the existence of ballots and that cannot occur, so one is only - - -
HIS HONOUR: That is, this Court cannot decide who was duly elected.
MR BELL: That is right, and then one - - -
HIS HONOUR: Or cannot declare someone duly elected who was not previously declared elected.
MR BELL: That is so, and then one only is left with the relief sought by my client which, on the hypothesis that the Court is not going to duly declare Senator Pratt and Mr Wang duly elected, as I apprehend it, both Mr Mead and indeed Mr Wang would accept in those circumstances that there should be a new election. I think Mr Donaghue did not make any submission on that point. I think that was a submission he refrained from.
HIS HONOUR: But does that proposition come down to the proposition from your side that the Court cannot declare Mr Wang and Senator Pratt duly elected because, you say, it cannot – your description was mix and match – take what is revealed on scrutiny initial and fresh, and add it either to revised or unrevised results on re-count?
MR BELL: That is so, because that procedure is not the procedure by which a candidate is duly elected.
HIS HONOUR: It is at least a procedure which forecloses reservation of any of the lost ballot papers. It is a procedure which – I say forecloses - it is a procedure which does not allow of any reservation of lost ballot papers. It is a procedure which does not allow of any scrutiny of lost ballot papers beyond whatever significance is given to the tabulation made at initial and fresh scrutiny.
MR BELL: And it has built into it an assumption that the outcome at the fresh scrutiny or original scrutiny state in respect of the 1,370 missing ballots was right or was broadly right. That is when one comes into what I think Mr Gleeson referred to as the paradox, the paradox being that the greater the success of the petitioners, the other two petitioners, in making challenges to the reserve votes and they need to make, even on their own case, a certain number of successful challenges and in a sense on their own case the more the better, the paradox is that that necessarily weakens an essential plank in their argument, namely, that the Court can be satisfied of what it needs to be satisfied and just - your Honour, the paradox, the greater the success there large questions are then begged in respect of the evidentiary value of such records as there are of the 1,370 missing votes who were, on our case of course, prevented from voting.
Here, there is an attempt to take their votes into account, but with not only the inability for any candidate to challenge and reserve in respect of those ballots, without any knowledge of the manner in which the relevant officers analysed those votes – it is not only the 120 which were declared informal, it is the entirety of them because it cuts both ways. If there were formal votes admitted as formal but which may not have been, not only would it be important to note that, but also how that particular vote was directed, how its preference flow was indicated.
So, at the level of – not so much principle, but the submission that we are only dealing with small margins, et cetera, and one can use Mr Barlow’s expression “get into some sort of statistical or percentage analysis”, that would result in an outcome which would involve, in large measure, speculation as to the reliability of records and speculation as to what particular ballots in truth recorded as to – ballots which are not available recorded as to the voting intention. It is not just the mixing and matching, it is - - -
HIS HONOUR: But the mixing and matching point, if it is a good one, is a point of law. The points most recently made are points about judicial fact finding, are they not?
MR BELL: Yes. A point of law is because you cannot get on the facts of this case – because of the numbers, 1,370, because that number far exceeds the number of reserve votes or reserve votes in play, the Court is never going to be able to give the relief being sought by those petitioners which necessarily involves a re-count. That is the reason we gave the answer to question 3 “no”, not necessary, not relevant because no utility would be served by that process; power to do so, yes, but no relevance or ultimately because no utility.
That really leaves standing my client’s petition, and on the hypothesis that the relief sought by the other petitioners is not able to be granted, they, as we understand their position, would fall in with what we seek, namely the voiding of the election and a new election to follow. I think the only party who would dissent from that course is Mr Dropulich. We have addressed his arguments in detail in writing. If it please the Court.
HIS HONOUR: Thank you, Mr Bell. I will consider my decision in this matter. Adjourn the Court to 3.30, Monday next in Canberra.
AT 3.04 PM THE MATTER WAS ADJOURNED
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