Missing votes mean it’s back to the polls for Western Australia

Out, then in, then out again: Greens Senator Scott Ludlam was returned in a recount, but says the court made the ‘right call’ because voters were disenfranchised when votes went missing. AAP/Alan Porritt

Although the Court of Disputed Returns has not yet formally declared that Western Australia’s half-Senate election was void, Justice Hayne’s judgment has made it clear that this is the necessary, or as he would call it, the “inevitable” outcome.

Last year, the voting in Western Australia elected three Liberals and one Labor Senate candidate. There were also two disputed Senate places. On the initial counts, these would have gone to the Palmer United Party and Labor but on the recount went to the Australian Sports Party and the Greens.

Notoriously, some 1370 ballots went missing so the recount could not be properly completed. The Electoral Commissioner petitioned the Court of Disputed Returns to declare the election void. The various parties, exhibiting more impressive twists, somersaults and backflips than in aerial skiing at Sochi, argued for whichever election outcome suited them best.

What are the court’s options?

The Court of Disputed Returns has very limited powers in relation to elections. It can declare that candidates who were returned as elected were not elected. It can declare that other candidates were duly elected.

The court can also declare an election to be absolutely void. There are two conditions for doing so. The court must be satisfied that it was likely that the outcome of the election was affected by an illegal act or official error and that it is just to make such a declaration.

In dealing with a challenge, the court usually has the benefit of being able to assess the ballot papers. The problem in this case was that some were missing. The question then was whether the court could consider the earlier counts, which had taken into account those ballots, in order to reconstruct an outcome.

The Electoral Act says that if anyone was “prevented from voting”, the court cannot admit evidence of their voting intentions. Some parties argued that the act of voting is complete when you put your ballot in the box. Others said that you could be prevented from voting if your vote wasn’t counted.

What did Justice Hayne decide?

Justice Hayne held that people were prevented from voting because their votes were lost and not counted. He considered that the Constitution requires that:

… the lawful expression of every voter’s choice is taken into account in determining who has been chosen.

The consequence was that he could not go back to the evidence of the earlier counts to determine the intention of these voters. It was not possible to mix and match from the various election counts to come up with a composite result. Justice Hayne noted that the Act did not permit the making of “patchwork” results.

As to whether the election outcome was likely to have been affected by the loss of the ballot papers, without admissible evidence of voting intentions in the lost ballot papers Justice Hayne held that:

… the conclusion that the result which was declared was likely affected by the loss of the ballot papers is inevitable.

This was because the critical margin of votes involved was 14, 12 or even just 1, depending upon which counts were used. Even though the evidence of earlier counts could not be admitted, Justice Hayne concluded that the margin was so small that:

… it is more probable than not that the loss of the ballot papers affected the result of the election which was declared.

Justice Hayne ended by stating that the court must find that Wayne Dropulich (Australian Sports Party) and Senator Scott Ludlam (Greens) “were not duly elected”. He also found that the court “cannot declare who was duly elected”. He concluded by stating that:

The only relief appropriate is for the election to be declared void.

Despite saying that, he did not actually declare the election void. Instead, he required the parties to come back before the court for “argument about any remaining issue” on February 20. Perhaps this was to ensure all parties had natural justice in being able to make submissions on the orders.

Nonetheless, the court is very constrained in the orders that it can give. There does not appear to be any possibility other than an order that the election was void. If so, the Electoral Act requires that a new election be held.

It would then be up to the Commonwealth to nominate the date and the Governor of Western Australia to issue the writs for the half-Senate election. This is likely to happen in late April, after Easter, in order to ensure that a full Senate is available when it first sits after July 1.

What does this case teach us?

There are many lessons that one can learn from this debacle, including the importance of maintaining ballot papers safely. But the most important one for the public is that every single vote counts.

It was the preferences given to minor parties that proved crucial in the 2013 WA half-Senate election. In the end, there was possibly only one vote in it, giving every single voter in the state the power to change the outcome and determine the balance of power in the Senate.

While many may not be thrilled about heading off to the polls again, this case shows that there is real power in the pencil marks that voters make on their ballots. They should exercise that power thoughtfully and wisely.