The uniquely troubled counting process for a federal election now held nearly two months ago has saved its biggest crisis until last.

The Australian Electoral Commission yesterday made the embarrassing revelation that 1375 votes, including 1255 formal above-the-line votes and 120 informal votes, had gone missing during its Western Australian Senate recount. The announcement came as the AEC concluded the recount process and prepared to declare the result, which it is reportedly likely to do on Monday.

Depending on the order in which micro-party candidates are excluded, this will either reaffirm the victories of Palmer United Party candidate Dio Wang and Labor’s Louise Pratt, or overhaul the result in favour of Greens Senator Scott Ludlam and Wayne Dropulich of the Australian Sports Party.

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But with the initial result having come down to a difference of 14 votes, a count which is known to exclude over 1000 formal votes has no chance of surviving a legal challenge. There is a consensus among electoral law experts that this is likely to end in the unprecedented political spectacle of a fresh election in WA. Much as the prospect might cause psephologists to salivate, the fury of the public would be difficult to overestimate.

Clive Palmer argues that the trouble can be averted by reinstating the original result, conveniently enough to the advantage of his own party. This does not sit well with his extravagant rhetoric about electoral integrity, given the hundreds of votes which were shown by the recount process to have been wrongly excluded.

It does remind us that the 1255 votes at issue have in fact been counted, and were included in the original published totals for the four polling booths from which they originated (Bunbury East in the electorate of Forrest, and Henley Brook, Mount Helena and Wundowie in Pearce). It would seem that a commonsense solution would be to incorporate the figures from the original count for the four affected booths with the recounted results for the rest of the state.

The worst that could be said about such an arrangement would be that a small number of votes was checked one time fewer than the others, which is surely a marginal concern under the circumstances. The AEC has ruled out following this path, which is understandable — its actions are governed by a highly prescriptive Electoral Act that doesn’t generally allow it much room for creativity. It is set on having the courts determine the matter, even to the extent of referring the matter itself.

That would leave the resolution in the hands of a High Court that has only once referred a disputed Senate election result back to the people, and that under the very different circumstances of 1907. That was when the Court of Disputed Returns declared the election of senators for South Australia in 1906 to be absolutely void in respect of the return of a Mr Vardon (one of the candidates died shortly after the election).

No doubt the court would have a lot to consider, but it could spare a lot of headaches, and win itself a few fans with the broader public, if it directed the AEC to make the best of the information already available to it.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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