Every voter's squiggle counts: why Bradfield court battle could drag on for months

Sydney Morning Herald

4 days ago

The Bradfield election count saw more reversals of fortune than Succession. First the independent Nicolette Boele was acclaimed the likely winner on election night. Then the Liberal Gisele Kapterian won the count by eight votes, only to see this snatched away in a recount with Boele winning by 26 votes. Now Kapterian is challenging the outcome in the Court of Disputed Returns. Does this mean the beleaguered burghers of Bradfield will be heading back to the polls?
The Court of Disputed Returns has the power to declare that any election is absolutely void, or that a person who was returned as elected was not duly elected and that any other candidate is elected. But other than cases of disqualification or corrupt conduct by a candidate, the court can only alter the outcome of an election or declare it void if any error or illegal practice in the conduct of the election was likely to have affected its outcome and 'it is just' to do so.
The law requires that 'real justice' be observed, with the court to be 'guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities'.
Kapterian's challenge is about whether particular ballot papers were mistakenly classified as formal or informal, affecting the outcome of the result. Was a 5 really an 8, and was that squiggle actually a 7?
If a successful claim were made that the outcome could not be known because ballots had gone missing or electors were wrongfully denied the ability to vote, a fresh election would be required. But in this case, as the court can determine the formality of each vote, it is more likely it would either confirm Boele's election or declare Kapterian the winner. A fresh election is unlikely, unless the margin is so close that the outcome cannot be fairly determined, or is affected by other factors, such as multiple voting.
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How long will it take? The Commonwealth Electoral Act contains a section optimistically headed 'Court must make its decision quickly'. But the substance says the court must make its decision 'as quickly as reasonable in the circumstances'. This will depend on a number of factors.
First, there is the question of who constitutes the Court of Disputed Returns. Ordinarily, it is the High Court. But on Friday, the Chief Justice of the High Court, Stephen Gageler, sent it off to the Federal Court to determine. As Kapterian's challenge mostly involves assessments of fact, rather than high legal principle, it is appropriate that it be dealt with by a lower court.
Second, timing will depend on how many ballots need to be reviewed and the time given for the parties to examine them and prepare their arguments.