WA Senate Election Dispute Rolls On: Australian Electoral Commission v Johnston

Tuesday 4 February 2014 @ 10.53 a.m. | Judiciary, Legal Profession & Procedure | Legal Research

The High Court web page records so far 11 days of hearings before Justice Hayne of the High Court in the matter of the Australian Electoral Commission v Johnston & Ors; Wang v Johnston & Ors; Mead v. Johnston & Ors [2014] HCATrans 3 (transcript date 29 January 2014) a special leave matter arising from the loss of 1,370 ballot papers after last year's (September 2013) Federal Election.

The High Court in its capacity as the "Court of Disputed Returns" has been asked by the Australian Electoral Commission (AEC) to find the Western Australian (WA) Senate poll at the last federal election was void so that the AEC can rerun the election.

How the Case Arose?

The missing votes were discovered when a recount was ordered. The recount followed a challenge by the Greeen's candidate Scott Ludlam and the Sporting Party's candidate Wayne Dropulich. As a result of the recount and the discovery of the missing ballots a dispute has arisen over the fifth and sixth Senate positions in WA.

In the first count (prior to the recount) which included the lost ballot papers, the winners were the ALP's candidate Louise Pratt and the Palmer United Party's (PUP) candidate Zhenya Wang. They had won by taking preferences from the Shooters and Fishers Party's candidate Murray Bow. However, following from the recount which was ordered because the results were very close the Australian Christian Party's candidate gained the lead and his preferences led to the election of Senator Ludlam and Mr Dropulich.

The missing ballot papers have not been found despite inquiry the highest level by former Australian Federal Police commissioner Mick Keelty who as a result of his investigation was very critical of the AEC but nonetheless failed to find the missing votes.

The AEC's Case

The AEC is reported as saying that: "its inability to include the missing votes has affected the election, and that is why it wants a fresh poll", it argues that the voters whose ballots were lost were prevented from voting, and the Court of Disputed Returns cannot consider other information.

The High Courts hearing on 29 January 2014 was focused on three key questions:

  1. whether voters who lodged the missing ballot papers were prevented from voting;
  2. whether the court is prevented from considering any evidence suggesting how those voters voted; and
  3. whether there could be a further inquiry into the AEC's decisions on votes deemed informal during the counting.

As yet the final outcomes of the hearing are to be delivered.

Views of the Candidates as to Right Outcome

The ALP's lawyers and its candidate are reported as calling for the first count result to be upheld saying that the recount was not ordered because of an identified problem with the first count; but because the margin of the first result was very close and so - "it was worth checking". The ALP WA state secretary is reported as saying that: "had the appeal for a recount been refused, the fact of the 1370 ballots being lost would be irrelevant . . ."

The Sporting Party's candidate Mr Dropulich is reported as being "in agreement with lawyers representing Liberal Party candidates" saying that "voters whose ballots were lost were not denied the chance to vote as the meaning of vote 'does not extend to whether a vote has been validly counted'".

Greens candidate Senator Ludlam despite winning the election is reported as saying that it  ". . . would be hard to argue the result should stand because so many ballots were lost, and he is looking forward to a re-election".

Importance of the outcome

While the final result is yet to be handed down from the Court of Disputed Returns as The Conversation reports it is likely to have:

"two realistic outcomes. One is that the election will soon be declared void. The other is that the case will continue, with further legal argument and the parties scrapping over disputed ballots in the coming weeks or months".

Further, there will be political consequences as a result of a rerun, if it eventuates. This is because the Senate has 76 members overall and when the new senate sits in July 2014 the federal Government will need 39 votes to pass legislation in the senate, but will as things currently stand have only 33.

The outcome of the case before the Court of Disputed Returns will not change government but a Senate dominated by minor parties and independents could well change the outcome on many important issues likely to arrive in the Senate after July.

Generally it is reported that there is strong support for voiding the election and rerunning it and to quote The Conversation:

"At the bar table in this case are five self-interested political parties, plus the AEC. The AEC has no interest in the outcome. It has already given a big public “mea culpa”. If anything, it should prefer to avoid the cost and ignominy of having to re-run the election.

The public interest is simple: given the mathematical doubt and the irretrievable public distrust in this particular election, the people of WA ought vote afresh."

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