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Possible New WA Senate Election? – Decision by Court of Disputed Returns

The Court of Disputed Returns today handed down a decision in relation to the disputed result for the Western Australian Senate in the 2013 federal election.

The Court was asked by the Australian Electoral Commission to declare the poll for WA Senate positions void after 1,370 votes went missing between the initial vote and a recount. The recount result would have seen The Green’s Scott Ludlam and the Sporting Party’s Wayne Dropulich being elected to the fifth and sixth Senate positions, whereas the initial count would have seen Labor’s Louise Pratt and the Palmer United Party’s Zhenya Wang elected.

In both instances, the following candidates would have been elected to the first four Senate positions:

  • Senator the Hon David Johnston (Lib);
  • Joe Bullock (Lab);
  • Senator the Hon Michaelia Cash (Lib); and
  • Linda Reynolds (Lib).

The points of law which Justice Kenneth Hayne ruled on today suggest that a new election for the six WA Senate seats is possible:

  • The Court accepted the argument of the AEC that the missing votes resulted in electors being denied the opportunity to vote. It was further held that the loss of votes, due to the close margin between the candidates probably affected the result of the election.
  • Justice Hayne rejected arguments from the Labor Party, Liberal Party and Palmer Party that the initial count should be upheld as the missing votes were considered in that count. The Commonwealth Electoral Act 1918 does not make provision for such consideration of earlier counts where a recount has been ordered and carried out.
  • The Court also rejected the argument made by parties that a result could be determined by combining the results of the re-count with the results made in earlier counts about the lost ballot papers.

This decision foreshadows a fresh election. A further hearing in relation to the matter will be held on Thursday, 20 February.

The full decision can be found here.

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