The High Court will conduct a hearing next Wednesday and Thursday to consider three questions central to the Western Australian Senate debacle, which could offer considerably greater clarity as to whether a fresh election will be held. The court has also treated us to a document dump on its website, including submissions from the Australian Electoral Commission and each of the concerned parties (Liberal, Labor, Palmer, Greens and Sports).

The AEC is very keen on a fresh election, which appears to be driving a lot of commentary to the effect that such an outcome is a foregone conclusion. But for what little my bush lawyer’s perspective is worth, its arguments strike me as rather pedantic, and given the extreme nature of the relief being sought, the odds on the court reaching an alternative conclusion aren’t quite as long as many seem to think.

First, a quick refresher. The original count saw the first four seats go three-Liberal and one-Labor, with the last two going to Louise Pratt of Labor and Dio Wang of the Palmer United Party. Key to the result was that the Shooters & Fishers party candidate finished 14 votes ahead of the Australian Christians candidate at what proved to be the decisive point in the count. Had it been otherwise, the seats would have gone to Scott Ludlam of the Greens and Wayne Dropulich of the Australian Sports Party, who sought and were duly granted a recount.

It was during the recount process that the 1370 ballots went missing. Absent those votes, along with the correction of various discrepancies which were showed up by the recount, the Australian Christians finished 12 votes ahead and the last two seats flipped over. However, since it was known which polling booths the votes had gone missing from, it was possible to ascertain that their inclusion would have seen the Shooters & Fishers finish a grand total of one vote ahead, assuming the votes from those booths had been counted correctly the first time around.

One of the two big questions at stake is whether it is permissible for the court to be guided in any way by what might have happened if the votes had not gone missing, based on what is known from the original count. The other is whether the court should proceed in revisiting 949 ballot papers which were the subject of scrutineers disputes during the recount and which could, on some constructions, widen the Shooters & Fishers margin over the Australian Christians to the extent that the missing ballot papers will no longer be decisive.

The Australian Electoral Commission is emphatically of the view that the answer to the first question is no; that this renders the second consideration redundant; and that the only thing for it is a fresh election. That would also seem to be the position of the Greens, whose petition was rejected by the court yesterday on the basis that it did not in fact challenge the result. However, since the main thrust of its argument is that a new election should be held if Ludlam’s win is overturned, the AEC petition very much does its work for it. Having fluked their way to a win on preferences in the recount, the Australian Sports Party is less keen on a fresh election. As best as I can tell from a quick reading, their petition advocates the re-examination of the 949 disputed ballots, while proposing legalistic objections to the election being declared void in any case.

On the other side of the ledger of self-interest, Labor’s position is that it could live with a fresh election, as it is evidently confident of winning a second seat at a re-match. However, its favoured course of action is to review the 949 contested votes, which it believes should increase the Shooters & Fishers total by 87 and reduce that of the Australian Christians by 90 (though the Greens have other ideas about this). Since the results of the first count indicated that only 23 of the missing 1370 votes were relevant to the question of who finished ahead out of Shooters & Fishers and Australian Christians, this would leave it open to the court to declare Pratt and Wang elected on the basis that the missing votes did not affect the result.

The Palmer United Party submission reflects Labor’s except to the extent that it a) only wants 56 votes added to the Shooters & Fishers tally and 18 removed from Australian Christians, and b) doesn’t seek a voided election as an alternative to its preferred outcome. Also in the no-election camp is the Liberal Party, which elected three Senators the first time around and has nothing to gain from a re-match that could potentially reduce it to two. While the Liberals are undoubtedly backing the horse of self-interest, their arguments strike me as highly persuasive.

To deal with the three legal points at issue in turn:

Were those who cast the infamous missing 1370 ballots “prevented from voting”?

Section 365 of the Commonwealth Electoral Act states that official error is only to cause an election to be voided if it affects the result, and that the court is not to decide whether this is so based on evidence of how anyone would have voted had such error not deprived them of a chance to vote. This goes back to a 1919 ruling which overturned a one-vote victory in the seat of Ballarat on the basis that a handful of people had been wrongly prevented from voting, with the court hearing evidence from affected voters that they had planned to vote for the losing candidate. The parliament of the time decided this didn’t sit well with the secrecy of the ballot, and accordingly passed what now stands as section 365.

The view of the AEC, together with the Greens, is that those whose ballots went missing during the Senate recount were indeed “prevented from voting”. However, it is the shared view at least of Labor and the Liberals that voting and having one’s vote entered into the scrutiny are two different things, dealt with in different parts of the act with different purposes in mind. The significance of which emerges in relation to the second point at issue:

Is there anything to stop the court considering the result from the first count in determining whether the missing votes would have affected the result?

The answer from the AEC is an emphatic yes: since the voters whose ballots were lost were “prevented from voting”, booth results from the first count amount to precisely what section 365 prohibits: “evidence of the way in which the elector intended to vote”. But as well as arguing that the voters in question were not indeed “prevented from voting”, the Liberals argue that the purpose of section 365 is merely to protect the secrecy of the ballot, which is not an issue with the first count vote totals. Other operative sections grant the court considerable latitude to reach decisions on grounds it thinks “just and sufficient”, and the Liberals argue results from the first count are an entirely valid way of reaching such a determination.

Can or should the court revisit the 949 disputed votes from the recount?

All of which still leaves the very big headache that patching up the recount results with missing vote tallies from the first count causes the issue to be decided by one solitary vote. A possible but by no means definite way out of this dilemma is provided by the 949 contested votes that were reserved for the judgement of the state electoral officer during the recount, which the court has the power to revisit. One precedent for it doing so was when Labor challenged Fran Bailey’s 12-vote win in the Victorian seat of McEwen at the 2007 federal election. The matter was handballed to the Federal Court which reached individual determinations on 643 ballot papers, every one of which is detailed in the published judgement. Significantly, this didn’t go according to Labor’s plan: rather than overturn Bailey’s win, the sum impact of the court’s decisions was to increase her margin to 27.

The position of the AEC is that such scrutiny will on no account be required, as there is no possibility of the final margin being greater than the 1370 missing ballots, with the court obliged to avoid making any assumptions at all about what those votes might have looked like. Labor and PUP, as noted, want the votes revisited by the court, which would otherwise not be able to declare the result in their favour with confidence. The Liberals nonetheless argue that this isn’t necessary – considering the results of the original count, they say, provides sufficient basis for the court to declare Pratt and Wang the winners of the final seats, as that is how the AEC would have proceeded if the votes hadn’t gone missing.