Australian Electoral Commission v Johnston

Parliamentary elections (Cth) – Senate – Court of Disputed Returns – Petitions disputing election – Election of six senators for State of Western Australia – Election for fifth and sixth Senate places very close – Re count of ballot papers directed – 1,370 ballot papers lost before re count – Re count of available ballot papers led to different candidates being elected to fifth and sixth Senate places from those determined upon "fresh scrutiny" under s 273 of Commonwealth Electoral Act 1918 (Cth) ("Act") – Whether result of election likely affected by loss of ballot papers – Whether electors who cast lost ballot papers "prevented from voting" in election – Whether Court precluded by s 365 of Act from admitting evidence of records made at earlier counts about lost ballot papers in determining whether result of election affected – Whether Court could declare candidate duly elected by combining records made in earlier counts about lost ballot papers with results of re count.

Words and phrases – "duly elected", "prevented from voting", "result of the election was likely to be affected".

Commonwealth Electoral Act 1918 (Cth) – ss 263, 273, 281(3), 360(1)(v) (vii), 362(3), 365.