17.
If, as the AEC submitted, the loss of ballot papers was likely to have affected the result of the election, it is not necessary to decide whether other illegal practices were committed which were likely to affect that result. The only relevant significance which other illegal practices could have would be in relation to what orders the Court should make.
Was the result of the election which was declared likely to have been affected by the loss of the ballot papers? In deciding whether the loss of ballot papers did or did not affect the result of the election, may the Court admit evidence of the records made about the lost ballot papers in the original and fresh scrutinies? That is, is the proviso to s 365 engaged?
Prevented from voting
The ballot papers which were lost were omitted from processes which the Act required to be followed to determine the result of the election. Although included in both the original and the fresh scrutinies, those lost ballot papers were not available at the re-count. The lost ballot papers were, therefore, excluded from the processes which, in the events that had happened, the Act required be undertaken to determine who should be returned as duly elected. As is apparent from the description which has been given of the Act's provisions about Senate elections, the Act provides for several distinct steps being taken before the result of the poll is ascertained and declared. In this case, after the original and fresh scrutinies, a re-count was directed. As the AEC rightly emphasised, when a re-count is directed, the result of that re-count is to be determined by scrutiny and it is this scrutiny (not any of the earlier scrutinies) which determines[1] the result of the poll.
Were the electors who had submitted the lost ballot papers prevented from voting in the election?
Although it is the proviso to s 365 which is directly relevant to this question, it is necessary to set out the whole of the provision:
"No election shall be avoided on account of any delay in the declaration of nominations, the provision of certified lists of voters to candidates, the polling, or the return of the writ, or on account of the absence or error of or omission by any officer which did not affect the result of the election:
Provided that where any elector was, on account of the absence or error of, or omission by, any officer, prevented from voting in any election, the Court shall not, for the purpose of determining whether the absence or error of, or omission by, the officer did or did not affect the result of the
- ↑ Re Lack (1965) 112 CLR 1 at 10.
