The disputed 2013 WA Senate election

The initial count of the Senate vote in Western Australia gave the last two Senate seats to Palmer United Party (PUP) candidate Zhenya Dio Wang and ALP candidate, sitting senator Louise Pratt. However, the closeness of the result (14 votes separated two minor parties at an important point in the count) was challenged by defeated candidates sitting senator Scott Ludlam (Australian Greens ) and Wayne Dropulich (Australian Sports Party). As a result on 2 October, the Australian Electoral Commission (AEC) deferred the formal announcement of the six successful candidates. The next day (3 October) the AEC turned down the appeal for a recount by Ludlam and Dropulich because they ‘did not identify any specific issues which would have warranted the conduct of a recount’. As allowed under section 278(2) of the Commonwealth Electoral Act 1918 the two candidates appealed directly to the Australian Electoral Commissioner Ed Killesteyn.

On 10 October the Commissioner announced his decision to order a recount of all above-the-line votes (over 96% of votes) and informal votes in WA. He based his decision on the closeness of the count and what he felt was in the best interests of the candidates and in the overall interest of the WA electorate's confidence in the outcome.

The recount began on Thursday 17 October and was completed by 1 November. It was the largest recount (nearly 1.3 million ballot papers) since the AEC was established in 1984.

On 31 October, the AEC announced that a parcel of 1,375 verified votes (1,255 formal above-the-line votes and 120 informal votes) mostly from the electorate of Pearce with some from the electorate of Forrest could not be found. As the recount process requires that each ballot paper be physically re-examined, these missing ballot papers were not included in the recount. On 5 November the AEC appointed former Australian Federal Police Commissioner, Mr Mick Keelty AO APM to establish the facts regarding the misplaced ballot papers, and identify any administrative process and/or procedural failures that may have occurred. He was also asked to provide recommendations to avoid similar issues in the future. It was expected he would report by the end of November.

The AEC received criticism over the missing ballot papers from a number of sources. Special Minister of State Hon Michael Ronaldson said it was ‘totally unsatisfactory’ but noted that he did not think there was any ‘skulduggery’ involved. Deputy Liberal Party Leader, Julie Bishop expressed concern over the missing ballot papers saying: 'Our democracy, our system of Government, depends upon there being integrity in our electoral system.’ Clive Palmer accused the AEC of trying to rig the election and stop his party from having the balance of power. He said the initial count should stand.

The AEC announced the results of the recount on Sunday 3 November and declared the poll on Monday 4 November. The recount overturned the result of the initial count and Australian Sports Party’s Wayne Dropulich and Greens’ Scott Ludlam were announced as the successful candidates for the fifth and sixth positions respectively.

On 8 November the AEC released the preferences distribution for the missing votes. It also revealed that the number of missing votes was 1,370, five fewer than initially announced. Antony Green noted that if these votes had been counted it would have resulted in the PUP and ALP candidates winning the last two seats. Furthermore, the result was effectively determined by one vote, being the difference between the Shooters and Fishers Party and the Australian Christians, with the latter being excluded.

There is a period of 40 days from the date when the writ is returned (i.e. until 16 December) in which the High Court sitting as the Court of Disputed Returns can be petitioned either by the AEC itself or any WA voter to reconsider the result (CEA, 355(e)).

The AEC lodged such a petition on 15 November in which it sought an order from the Court to declare the WA Senate election of six senators void. The AEC reasoned that:
Given the closeness of the margins that favoured the final two declared candidates, the petition is based on the premise that the inability to include 1,370 missing ballot papers in the recount of the WA Senate election means that the election was likely to be affected for the purposes of s 362(3) of the Commonwealth Electoral Act 1918.
The Court could decide to accept the result declared by the AEC, call for another poll, or announce some other finding. Constitutional law expert Professor Anne Twomey said:
The High Court will weigh up the evidence and decide whether an election is needed. The High Court would consider practicalities, like the margins involved, when deciding if a fresh election is needed. Because the first count was so tight ... obviously the prospects of a High Court decision ordering a re-run ballot would be very high.
 If the Court declares the election void and calls for another Senate election just for WA this would be the first time this has occurred. The poll would most likely be held in the early part of 2014 but would need to be completed by 24 May 2014 so that the writ can be returned by 30 June and the elected senators can take their places in the Senate by 1 July 2014. The AEC estimates the cost of such an election would be about $10 million plus a further $2-3 million in public funding.


Flagpost is a blog on current issues of interest to members of the Australian Parliament

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