What’s Going On With The WA Senate Count Antony Green

The last few days have been eventful in politics with the revelation of ballot papers missing in the WA Senate Count.

The news broke on Thursday on the first day on an electoral law conference I was attending in Brisbane. I was one of several attendees who spent parts of Thursday and Friday on the phone trying to explain what was happening.

Now on the weekend I’m attending a conference in Canberra on the 2013 election, so again I’ve been a bit constrained on trying to publish on the result.

However, while I have time, here are a few comments on the WA result.

The closeness of the WA result came about because of a critical choke-point early in the count. The Australian Christians and the Shooters and Fishers were on 1.75% at a critical count, with the Shooters and Fishers ahead by 14 votes.

The Shooters and Fisher’s 14 vote lead resulted in the Australian Christians being excluded, and as a consequence the final two seats were won by the Palmer United Party and Labor.

On the re-count, around 500 votes previously considered informal were found to be formal. There was also the now well publicised missing 1,375 ballot papers, of which 1,255 were above the line ticket votes.

With these changes, the critical choke-point saw a change with the Australian Christians leading by 12 votes and the Shooters and Fishers excluded. With different preferences tickets now being distributed, the final two seats were won on the re-count by the Australian Sports Party and the Greens.

However, it appears that the missing votes disadvantaged the Shooters and Fishers. If you include the original polling place results for the missing votes, then the Shooters might have just finished ahead, something that would have changed the result again.

But we can’t know that because the votes are not available for re-counting. Which is why the whole matter is going to the courts.

One question I have been asked is why the AEC has declared the result if it knows there is a problem?

The answer is simple. The electoral act specifies that Court of Disputed Returns challenge cannot begin until a result is declared. Having spent the last week trying to locate the missing ballot papers, the AEC had little choice but to declare the result so that the Court of Disputed Returns process could begin.

Another question I have been asked is why can’t the original votes now be used in the count?

The answer is again legal. If the AEC decides to re-count votes, it has to use the re-count figures. It is not allowed to mix and match the counts. The Court of Disputed Returns might choose to do so, but the AEC cannot.

Yet they Court may not, because if the old tally is included, the result could again change but the result be so narrow that any possible error could have invalidated the result. Any errors in the missing votes, any multiple votes, any voting irregularities could be seen as critical in such a key result.

With such a close result, the Court may rule it has no confidence in deciding the result on the available ballot papers and order a new election.

The Court will have to expedite a hearing and decision on this. There is still time to conduct a re-election for Senators to take their seats on 1 July, but that means holding the election by the latest in early May.

The election would go through exactly the same procedures as a general election. Writs would be issued, a 33 day campaign would follow, a polling day would be held followed by a count. Unless the High Court surprisingly decided differently, new nominations would be called for. Unless the High Court ruled that the roll as at 7 September be used, there would be a new close of rolls.

New nominations would almost certainly see a huge increase in the number of candidates. Once again we would see intricate preference deals.

Would all six seats be up for re-election? Perhaps the Labor and Liberal Parties might argue the three elected Liberal candidates and first elected Labor candidate should not have to face re-election.

However, the Roberts Woods case in the 1980s and Heather Hill case in the 1990s shows the High Court accepts the election is for six Senators elected together. You can’t break the elected candidates into groups.

Any election for two Senators would deliver a fourth seat to the Liberal Party so every other party would argue against a two vacancy election.

So there is much at stake in the looming Court of Disputed Returns decision. The last disputed case was in 2007 and heard by a single Federal Court justice, no constitutional issues being in play, as occurred previously when single High Court justices sat as the Court.

It may be that in considering the WA appeal, the Court will sit in full to consider parts of the case because some constitutional matters may need to be considered in addition to simpler legal issues concerning the Electoral Act.

The court will be forced into trying to choose between deciding the result based on a count with known errors, or letting the electorate re-decide for itself.

It promising to be an interesting case, and if a re-election is held, and even more interesting election with vital importance given it will affect the future balance of power for the Senate.