Hayne J
12.
It is likely that there is at least some, perhaps very substantial, overlap between the allegations made in the Wang and Mead petitions about wrongful rejection and wrongful acceptance of votes. It is not necessary, however, to decide whether or to what extent this is so. Argument proceeded on the assumption that, together, Mr Wang and Mr Mead seek to demonstrate error in the treatment of at least 250 ballot papers reserved for the decision of the AEO.
Lost ballot papers
During the course of the re-count, it emerged that 1,370 ballot papers for votes which had been cast in either the Division of Forrest or the Division of Pearce (said, in the records of the fresh scrutiny, to be 120 informal votes and 1,250 unrejected above the line votes) could not be located and brought within the re-count. Those ballot papers have not since been found and it is accepted that it is unlikely that they will be found. Because these ballot papers were lost, the re-count directed by the Electoral Commissioner could not, and did not, take place in accordance with the Act. But those of the ballot papers which were to be re-counted and were available were scrutinised.
The result of the scrutiny of ballot papers available for re-count
Before the re-count, the AEO ascertained that a total of 1,349,635 ballot papers were submitted at the election of senators for Western Australia, of which 1,311,440 were unrejected votes and 38,195 were informal votes.
Re-counting those votes which were the subject of the Electoral Commissioner's direction and were available for re-count revealed that, at the 50th exclusion point, Mr van Burgel had 23,526 votes and Mr Bow had 23,514 (a difference of 12 votes in favour of Mr van Burgel). (As noted earlier, the fresh scrutiny had found Mr van Burgel to have 23,501 votes and Mr Bow 23,515.)
The fresh scrutiny and the re-count arrived at different tallies of votes. The parties accept that 532 ballot papers were counted on the re-count which had not been counted in the fresh scrutiny. The parties further accept that the numbers of ballot papers (both in parcels of above the line votes and in parcels of informal votes) counted at the re-count differed from the numbers counted at the fresh scrutiny. Some of these differences in counting were due to miscounts of the number of ballot papers in some parcels at the fresh scrutiny; some were due to counting about 80 blank ballot papers as informal votes on the re-count. And some were due to movement of ballot papers between parcels at the re-count (for example, from one registered group voting ticket to another). Each transfer of ballot papers between parcels was counted as two movements (one addition and one subtraction). There were 7,826 movements of ballot papers. That is, on the re-count, 3,913 ballot papers were assigned to parcels different from the parcels to which they had been assigned at the fresh scrutiny.
