Western Australians are almost certain to return to the polls to vote for Senate — and they will likely have an entirely new (and expanded) range of micro-parties to choose from.

Yesterday the Australian Electoral Commission formally declared the self-evidently unsatisfactory recount result concluded on Saturday. Given the constraints in which the AEC is required to operate, there is no conceivable solution to the present difficulty that doesn’t involve directives being issued by the High Court. It is certainly not tenable for the original result to stand, given the substantial number of discrepancies that were unearthed during the recount.

There are few precedents for this situation, but a 1906 election suggests that the High Court will reopen the field of candidates and call for entirely fresh elections.

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To allow the matter to proceed in the only way it can, it was first necessary to declare the result as a preliminary for the return of the writs, which will happen tomorrow. Then begins a 40-day period in which legal challenges can be launched, as they assuredly will be by multiple parties.

While there has been a fair bit of speculation as to how the High Court might proceed, any remedy that does not involve starting the whole process from scratch will require considerable judicial creativity.

The Electoral Act grants the court sweeping powers either to uphold or amend a declared result, or to rule it “absolutely void” with a fresh election to follow. A precedent from the 1919 election, at which the result in Ballarat was decided by a margin of one vote, suggests the latter to be the appropriate course where specific irregularities can be identified that would likely have affected the result.

On that occasion, seven individuals were found to have been wrongly deprived of their vote through errors such as being given ballots for the wrong electorate when they sought to cast absent votes. This time, comparing results from the first count with the second suggests a number of votes almost exactly equal to the margin that decided the result has gone missing for the relevant party.

Given the unlikelihood that the High Court will feel bold enough to decide a result one way or another, a number of suggestions have been raised as to what might follow if it declares the election void.

“If the size of the Senate ballot papers on September 7 caused your mind to boggle, chances are you ain’t seen nothin’ yet.”

The one precedent available with respect to the Senate goes all the way back to 1906, when one of the three seats up for election in South Australia (the number of senators per state then being half its present number) was determined by a margin of two votes. The court ruled that this could not stand owing to a polling official’s failure to initial ballot papers that, had they been admitted to the count, would have decided the result in favour of the defeated candidate. The matter was eventually resolved with a fresh election only for the affected seat, which has caused some to suggest that the present situation might be resolved with an election for the two seats in dispute.

However, the 1906 election was conducted under an electoral system in which each voter was simply granted three votes, with the seats going to the three candidates with the highest totals.

Under the current system, an election for two seats would most certainly deliver a fourth seat to the Liberals, thereby negating its purpose of producing a proportional result — a point the High Court explicitly acknowledged in judgements brought down in 1987 and 1999.

With an election for all six seats appearing the only plausible option, there remain questions as to the basis on which it would proceed.

The responsible minister, Michael Ronaldson, yesterday mused that the court could order either “a fresh election with only candidates who stood last time around, or all new candidates altogether”. However, the former eventuality doesn’t seem terribly likely in view of the act’s provision that “a new election shall be held” in the event of a void result.

During the course of the legal disputes that followed the aforementioned 1906 election, it was definitively settled that an “election” referred not to polling day, but to “the whole proceedings from the issue of the writ to the valid return”. That leaves little room for doubt that a new election would follow the timetable laid out in Part XIII of the Electoral Act, which expressly provides for a nominations period lasting for 10 to 27 days after the issue of the writs.

There would thus appear to be no obstacle to Julian Assange putting himself forward as the candidate of the WikiLeaks Party, as he declared he would do yesterday. Nor is there anything to stop any micro-party chancer anywhere in the land from seeking to follow the famous examples of Ricky Muir of the Motoring Enthusiasts Party and Wayne Dropulich of the Australian Sports Party.

If the size of the Senate ballot papers on September 7 caused your mind to boggle, chances are you ain’t seen nothin’ yet.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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