The West set to vote again for the Senate

Clive Palmer has strongly criticised the Australian Electoral Commission over the missing votes in Western Australia. AAP/Daniel Munoz

Western Australian voters are set to face an unprecedented fresh Senate election after the High Court signalled it would strike down the result of the September poll because 1370 ballot papers were lost.

The poll, likely to be in April, will be an early test for the Abbott government and the opposition, as well as a measure of support for micro parties – in particular, Clive Palmer’s Palmer United Party, which won a WA upper house seat on the first count but not on the recount.

Whatever the outcome of a new WA vote, the balance of power in the new Senate will be in the hands of the crossbenchers. This passes from the Greens to a collection of minor players on July 1.

But if Labor and Greens between them got an extra WA seat, their potential to gather enough support to block legislation after July 1 would be marginally improved.

The clout of PUP, which has two senators-elect and an alliance with a third, would be significantly increased if it won a WA seat.

In its judgement the court, sitting as the Court of Disputed Returns, found that “the only relief appropriate is for the election to be declared void”.

The court will sit again on Thursday to deal with outstanding petitions before finalising its orders. The case has been heard by Justice Kenneth Hayne.

The Australian Electoral Commission, while noting that Justice Hayne had not yet ordered that the election be declared void, set out the process for a fresh election for six WA senators.

Constitutional expert George Williams, from University of New South Wales, said that although the case was not concluded “the writing was on the wall” for a fresh election, which was not a surprise.

In the first WA count the Liberals won three Senate places, Labor two spots and PUP one. In the second count, the Liberals won three and Labor one, with the last places going to the Greens and the Australian Sports Party.

The mysterious disappearance of the ballot papers has led to strong criticism of the Australian Electoral Commission from the government and Palmer. Palmer said today the heads of AEC Commissioner Ed Killesteyn and other senior AEC management should roll over the fiasco. “We now have voters in WA forced back to the polls for a needless election that will cost taxpayers’ millions of dollars.”

The Court held that it was precluded under the act from looking at records of earlier counts of the lost ballot papers. Without that, the conclusion that the loss probably affected the result was inevitable.

The number of lost papers far exceeded the margin between the candidates at the determinative point in the count, the court found. And the re-count produced different tallies of votes and different decisions about rejection or acceptance of ballot papers from earlier counts.

It rejected the proposition that it could determine the outcomes by combining the recount results with the records made in earlier counts about the lost papers. That method was not provided under the act, it said.

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