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High Court paves way for fresh WA Senate election

A return to the polls for Western Australian voters now looks all but certain, following a High Court ruling in favour of the Australian Electoral Commission’s position on the disputed Senate count.

The High Court has just ruled that made a ruling that very likely means a fresh Senate election for Western Australia, having concurred with the Australian Electoral Commission that those whose ballot papers were lost were prevented from voting, and that it will not do to try and ascertain their intentions by looking at the results of earlier counts. We will know in greater detail what the court has in mind on Thursday. From a report that The West Australian obviously had ready to go:

It is understood Prime Minister Tony Abbott will have responsibility for setting the election date.

With the Constitution setting a minimum 33 days for an election campaign, March 29 looms as the earliest date Mr Abbott could call the poll.

Complicating the choice of dates is the need to avoid a clash with the Easter school holidays, which run from April 12 to April 27.

Delaying the election to May would also put the campaign period into the run up to the Federal Budget, when the Government is expected to make a raft of swingeing and unpopular cuts.

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  • 1
    ruawake
    Posted Tuesday, February 18, 2014 at 12:46 pm | Permalink

    The HC has declared the election void.

    It is neither relevant nor necessary to undertake that consideration because the Court must find that Mr Dropulich and Senator Ludlam were not duly elected, but cannot declare who was duly elected. The only relief appropriate is for the election to be declared void.

    So it seems the election is definate.

  • 2
    Steven Grant Haby
    Posted Tuesday, February 18, 2014 at 12:49 pm | Permalink

    William

    Does this mean the government in effect has to go into caretaker mode up to the Senate poll? Where does this lead the HOR?

    Unprecented happenings!

    Steven

  • 3
    ltep
    Posted Tuesday, February 18, 2014 at 12:57 pm | Permalink

    There shouldn’t be the need to go into caretaker mode because the fresh WA Senate election cannot change the composition of the House of Representatives.

  • 4
    ltep
    Posted Tuesday, February 18, 2014 at 12:58 pm | Permalink

    A sensible judgment from Hayne J in my view. I suspect the Liberals will still get the 3 senators, but we will see.

  • 5
    NathanA
    Posted Tuesday, February 18, 2014 at 1:03 pm | Permalink

    Further to that Itep, the new senate does not sit until July, so the WA senate election will not change the current composition of the Senate as well as the House of Representatives. Only the future composition of the Senate can be changed.

  • 6
    Posted Tuesday, February 18, 2014 at 1:04 pm | Permalink

    No, the government governs based on the security of its position in the House of Representatives, which is not affected by this at all.

  • 7
    KEVIN-ONE-SEVEN
    Posted Tuesday, February 18, 2014 at 1:07 pm | Permalink

    Can I stand?

  • 8
    Bule
    Posted Tuesday, February 18, 2014 at 1:08 pm | Permalink

    And yet, and yet…

    http://www.dpmc.gov.au/guidelines/docs/caretaker_conventions.pdf

    Paragraph 1.4 says:

    “There are also established practices associated with the caretaker conventions that are directed at protecting the apolitical nature of the public service and avoiding the use of Commonwealth resources in a manner to advantage a particular party. The conventions and practices also aim to prevent controversies about the role of the public service distracting attention from the substantive issues in the election campaign.”

    Shouldn’t the government be prevented from backing a truckload of money into Western Australia during the campaign period?

  • 9
    Posted Tuesday, February 18, 2014 at 1:08 pm | Permalink

    The HC has declared the election void.

    I gather that isn’t so.

    Can I stand?

    If you must.

  • 10
    NathanA
    Posted Tuesday, February 18, 2014 at 1:10 pm | Permalink

    When do candidates need to declare their preferences from above-the-line voting? I wonder if the shorter time period will make it more difficult for micro parties to get themselves organised.

  • 11
    James J
    Posted Tuesday, February 18, 2014 at 1:19 pm | Permalink

    The Court’s Reasons:

    http://www.austlii.edu.au/au/cases/cth/HCA/2014/5.html

  • 12
    ltep
    Posted Tuesday, February 18, 2014 at 1:20 pm | Permalink

    I would’ve thought, at least technically, the date for the election could be set by the WA Government (via its Governor) independently of the Commonwealth’s desires.

    http://www.austlii.edu.au/au/legis/sa/consol_act/eosa1903218/s2.html

    I suppose, practically, the Commonwealth would have a lot of say administratively, controlling the AEC.

  • 13
    dave
    Posted Tuesday, February 18, 2014 at 1:21 pm | Permalink

    William Bowe@9


    The HC has declared the election void.


    I gather that isn’t so.

    ABC TV News at Noon in Sydney said it hadn’t been decided and that we need to wait until Thurday next week. They had Anthony Green also saying we need to wait.

    Its probably all on 24 now as well.

  • 14
    James J
    Posted Tuesday, February 18, 2014 at 1:26 pm | Permalink

    Per Hayne J at 122: “…the Court must find that Mr Dropulich and Senator Ludlam were not duly elected, but cannot declare who was duly elected. The only relief appropriate is for the election to be declared void.”

  • 15
    caf
    Posted Tuesday, February 18, 2014 at 1:29 pm | Permalink

    Bule: Presumably whatever rules/guidelines apply during regular HoR by-elections apply here as well.

  • 16
    ltep
    Posted Tuesday, February 18, 2014 at 1:34 pm | Permalink

    I would imagine the caretaker conventions apply during general elections (for the House of Representatives). They do not apply during by-elections for instance.

  • 17
    Tom the first and best
    Posted Tuesday, February 18, 2014 at 1:36 pm | Permalink

    14

    That does not say that the court has voided the election, only that it says that it must.

  • 18
    ruawake
    Posted Tuesday, February 18, 2014 at 1:38 pm | Permalink

    The HC has stated “The only relief appropriate is for the election to be declared void.”.

    Now how that is up for interpretation is beyond me.

    The only thing they are looking at on Thursday is costs. Media groupthink strikes again.

    The costs of the trial of separate questions should be reserved. The petitions should be stood over for argument about any remaining issue (including what order, if any, should be made for the costs of the trial of separate questions) on Thursday, 20 February 2014 at 12 noon in Melbourne.

  • 19
    dave
    Posted Tuesday, February 18, 2014 at 2:12 pm | Permalink

    ltep@4

    A sensible judgment from Hayne J in my view. I suspect the Liberals will still get the 3 senators, but we will see.

    Yes, I wouldn’t be too excited about a big upset until I see it – particularly WA from a Labor viewpoint.

    Will be interesting to see if support for the minor parties , independents falls away, yet no doubt they will all line up again plus more.

  • 20
    ruawake
    Posted Tuesday, February 18, 2014 at 2:37 pm | Permalink

    Seems the WA Gov gets to issue writs, at his discretion? TheWA Govts of Feds?

    In accordance with the Australian Constitution and the requirements of the Western Australian Election of Senators Act 1903, an election of six senators for Western Australia would occur once a writ has been issued by His Excellency Mr Malcolm McCusker AC CVO QC, the Governor of Western Australia. A writ outlines all the key timings for the election including the dates for the close of the electoral roll, candidate nominations and for election day.

  • 21
    Posted Tuesday, February 18, 2014 at 3:10 pm | Permalink

    eems the WA Gov gets to issue writs, at his discretion? TheWA Govts of Feds?

    The convention is that the PM asks the GG to issue writs for the Reps for a given date, and the GG then asks the state Governors to issue writs for the Senate for the same date. In theory a Premier could advise their Governor not to issue the writ, or to issue it for another date, but none has ever done so. (I think Bjelke-Petersen threatened to do so once.) In this case, the federal government will decide the date, and advise the GG, who will then ask the WA Governor to issue the writ.

  • 22
    Posted Tuesday, February 18, 2014 at 3:53 pm | Permalink

    Bjelke-Petersen issued a writ. Whitlam had advised the date for the half-Senate election with the usual notice before writs were formally issued. He then appointed Gair as Ambassador to ireland and the Holy See, meaning the Qld half senate election would be for six Senators rather than five. Coalition Senators in Canberra then kept Gair occupied so he couldn’t hand in his resignation before Bjelke-Petersen arranged the issue of writs for 5 Senators meaning Gairs eventual resignmation would become a casual vacancy.

    The writ was cancelled when Whitlam called a double dissolution.

  • 23
    Graeme
    Posted Tuesday, February 18, 2014 at 4:11 pm | Permalink

    Funny I was just talking to a journo about the Gair/Bjelke-Petersen matter; they had not heard of either figure…

    The WA Governor is advised by the WA Premier. Who needs to take practical advice from AEC; and would I’m sure take political advice from Abbott. In theory there’s nothing to stop a Premier delaying and delaying and not filling seats (we’ve just seen something like that in Qld for some months). But it would look silly, cause a constitutional imbroglio, and wouldn’t help the Liberals one iota.

    Presumably as someone said above they’ll go for a short campaign and a pre-budget vote. If nothing else the parties may not have much in their coffers, and there’s less than $3m public funding to share around. Senators having to doorknock, what next?!

  • 24
    pedant
    Posted Tuesday, February 18, 2014 at 5:23 pm | Permalink

    While the AEC’s people in WA certainly stuffed up their ballot paper handling, the AEC’s legal people seem to have done much better over the years: they’ve hardly ever lost a case, and the Court’s reasoning essentially vindicates the AEC’s decision to seek a fresh election.

  • 25
    Posted Tuesday, February 18, 2014 at 5:46 pm | Permalink

    Graeme, that is unless for fear of being unable to print the ballot paper, they amend the act to allow them to double deck the ballot paper as the acts in NSW and SA allow for. As it is, the only only option is a 1 metre ballot paper with an ever decreasing font size.

  • 26
    Compact Crank
    Posted Tuesday, February 18, 2014 at 6:23 pm | Permalink

    William – heard you the ABC this morning. Came across very well. Well done.

  • 27
    Socrates
    Posted Tuesday, February 18, 2014 at 7:15 pm | Permalink

    Have there been any polls in WA on voter intention since the election? I personally am pleased with the court decision. The result was clearly compromised by the lost votes.

  • 28
    Graeme
    Posted Tuesday, February 18, 2014 at 7:58 pm | Permalink

    Antony, indeed. I’ve been telling journos for months that’s the sleeper story here.
    Most don’t get it, but on the other hand it may be better not to broadcast the fact that anyone in Australia can run. A bunch of anarchists standing as independents could physically scuttle the ballot!

    What odds these butterfly wing results becoming more common in Senate races?

  • 29
    Posted Tuesday, February 18, 2014 at 10:44 pm | Permalink

    Graeme, that is unless for fear of being unable to print the ballot paper, they amend the act to allow them to double deck the ballot paper as the acts in NSW and SA allow for. As it is, the only only option is a 1 metre ballot paper with an ever decreasing font size.

    They should amend the Act immediately to increase the deposit for Senate tickets to $100,000, which parties would get back if they polled 1% of the vote. Legit parties could easily raise or borrow the money, but it would deter the cranks and prevent flooding the ballot with phony candidates.

  • 30
    Tom the first and best
    Posted Tuesday, February 18, 2014 at 11:04 pm | Permalink

    29

    Finally you post you massive deposit proposal on a Senate specific thread where it will not quickly get lost!

    $1,200,000 (the minimum for running a group under your proposal) is a significant amount of money for a party (other than ALP, LP & NP) to have locked away during the height of the campaign. It would likely have a somewhat negative effect on legitimate parties that have reasonable chances of getting Senators, like the Greens. Still it is better than when you were proposing $1,000,000 per Senate candidate (with $100,000 as the HoR figure, which sounds like a scheme by the Nats and Libs to crush rural independents).

    The better way of keeping the ballot size down is to make it harder to register a party (say a minimum of 2,000 members), requiring parties nominating candidates to gain a certain number of signatures of registered electors (say 25) in each state/seat they run in and requiring candidates to be enrolled in the state/seat they run in. That would reduce ballot paper clutter without increasing the influence of money.

  • 31
    Arrnea Stormbringer
    Posted Tuesday, February 18, 2014 at 11:24 pm | Permalink

    @ Tom 30:

    Yours is a much better proposal than Psephos’ much-repeated proposal to benefit the rich at the expense of the poor (which I suspect stems from his seemingly pathological hatred for the Left, especially the Greens).

  • 32
    Arrnea Stormbringer
    Posted Tuesday, February 18, 2014 at 11:26 pm | Permalink

    On the matter of the ruling itself, I suppose it was inevitable. With a theoretical result where the decisive exclusion was decided by one vote, the Court had no reasonable basis to be confident in either potential result, so the only reasonable option was to declare the election void and let the people vote again.

    2 LIB, 2 ALP, 1 GRN with the last seat a tossup between LIB and PUP is my prediction at this point.

  • 33
    Posted Wednesday, February 19, 2014 at 1:17 am | Permalink

    Yours is a much better proposal than Psephos’ much-repeated proposal to benefit the rich at the expense of the poor (which I suspect stems from his seemingly pathological hatred for the Left, especially the Greens).

    Obviously I have more confidence than you that the Greens would poll 1% of the vote!

    Membership and signature requirements would be easily evaded (as we saw with One Nation) and would be hard and expensive to police. Who will verify all these thousands of memberships and signatures? Hard cash cannot be faked. Any legitimate party can easily borrow $100,000 if the lender is certain they will poll 1% and so get their money back. That would certainly include the Greens, PUP, Family First, the CDP, the Sex Party and Xenophon’s and Katter’s parties. The only people it would deter would be vanity parties and ballot-flooders.

  • 34
    Tom the first and best
    Posted Wednesday, February 19, 2014 at 1:38 am | Permalink

    33

    Any party would have trouble polling 1% if it only borrowed $100,000 because then it would be in the ungrouped column. So that is at least $200,000 per state to be borrowed (It would be good strategy for the Greens to run more than 2 candidates in a DD, in some states (such as Tasmania and Victoria)). That is a minimum $1,200,000 for an all states Senate run.

    The territories do not have the same Senate ballot explosion issues and so no massive deposit hike is needed there, but if there is a deposit hike then that is another $400,000 for a national run.

  • 35
    Socrates
    Posted Wednesday, February 19, 2014 at 7:38 am | Permalink

    I support tougher party registration, based on a higher member count, say at least 1000 members per one million voters. I think the whole point of tougher party registration is to make it tougher for very small groups to count as a political prty, which the micros plainly are NOT.

    Want to join a micro party branch? Can’t. Want to take part in a micro’s policy development? Sorry. The micros are not real political parties, they are devices to manipulate our system.

    Getting into the Senate with 0.2% of the vote is not democracy, it is an accident of maths.Therefore I have no sympathy for them. So any device that makes them count as a group of individuals i.e. the independents column, is legitimate.

    It ought to be member based, not dollar based, since obviously one wealthy individual may have the dollars, but should still not count as a party. The difficulty is that cynics will then simply collect signatures to count as “members” just as unions claim ALP delegates now. Perhaps membership numbers should be based on the mumber of individuals who write to the AEC and identify themselves as members?

  • 36
    Jackol
    Posted Wednesday, February 19, 2014 at 8:32 am | Permalink

    I think everyone has set upon their favourite solution.

    I still don’t understand why we don’t try fixing what to me is the real problem – group ticket preferencing. Abolish that, introduce OPV to solve the complexity problem (ATL as well as BTL if we want to keep ATL … I’m not fussed either way).

    Without group ticket preferencing the reward for the micro/front parties to stand is taken away, and as an added bonus the major parties no longer have to play the guessing game that is trying to guess which micro parties they can safely trade preferences with and which might snowball and get elected – it’s a bad game for everyone except the lucky micros, even if the majors think they can generally “win” by being smart. Clearly the ALP preference negotiators are not as smart as they think they are having now twice elected FF Senators as a result of their cunning calculations.

    Sure, you’ll still get a few clowns and egomaniacs who just want to see their name on a ballot paper, but I can basically guarantee that most of the people trying their luck in the Senate seat lottery will not bother if the lottery part is taken away.

    There are good reasons to abolish group ticket preferencing, and it may well solve the Senate ballot paper explosion problem along the way. So why don’t we fix that first, and then in a couple of elections if the candidate profusion problem still exists we can think about vote thresholds or deposits or membership thresholds or whatever.

  • 37
    Outsider
    Posted Wednesday, February 19, 2014 at 11:43 am | Permalink

    I just wonder what training journalists receive these days!

    The closing statement in Hayne J’s decision was that: “The costs of the trial of separate questions should be reserved. The petitions should be stood over for argument about any remaining issue (including what order, if any, should be made for the costs of the trial of separate questions) on Thursday, 20 February 2014 at 12 noon in Melbourne.”

    Mark Kenny in the SMH today is reporting that “The court will sit again on Thursday to consider arguments and further issues such as the costs of a fresh election.”

    The latter part of the statement is manifestly wrong. Hayne J said no such thing. His comments about “costs” clearly relate to receiving submissions from the parties on what costs orders, if any, should be made in relation to the proceedings.

    There is nothing unusual about such action.

    It might seem a little strange that Hayne J has concluded that the election is void, without making any express orders about what happens next. Presumably he does not think it necessary to do so, and that a fresh election will now proceed in line with his answers to the questions on which he was asked to provide an answer. However in light of the media mis-reporting he may feel inclined to address this issue when he makes further orders as to costs.

  • 38
    Tom the first and best
    Posted Wednesday, February 19, 2014 at 1:30 pm | Permalink

    35

    The law should be changed so that the AEC has to audit compliance with the minimum membership requirement at each election and during each term, live some state electoral commissions have to.

    NSW increased its party registration rules to a minimum of 750 members as part of the anti-tablecloth rules and they have cut the problem. NSW has just under a third of Australia`s population, therefore to apply the NSW population to party member ratio would require only about a 2,300 member minimum.

    A requirement of a democratic structure, like in Queensland, would also be good.

  • 39
    Tom the first and best
    Posted Wednesday, February 19, 2014 at 1:35 pm | Permalink

    37

    Hayne J has said that the only reasonable remedy for the situation is to declare the election void but obviously did not consider yesterday`s sitting the time to actually declare the election void. He would know that he actually needs to declare the election void for a new election to happen and will likely do so at the next hearing.

  • 40
    Posted Wednesday, February 19, 2014 at 1:41 pm | Permalink

    It might seem a little strange that Hayne J has concluded that the election is void, without making any express orders about what happens next.

    His logic seems to be that it is not the Court’s role to direct the government. The election has been declared void. The only course open to the government is therefore to ask the Governor of WA to issue a fresh writ.

  • 41
    Outsider
    Posted Wednesday, February 19, 2014 at 1:51 pm | Permalink

    Psephos I think that was Hayne J’s intention. That the only outstanding issues relate to costs orders. It is a slightly annoying habit of the High Court in cases such as this one to expressly answer the questions that are posed and nothing more. But I see no reason why the process for holding the elction should be delayed, based on the decision handed down yesterday. My more general observation was that media reporting is so poor, as in Mark Kenny’s article – somehow conflating the outstanding issue of costs orders relting to the proceedings with the cost of holding the fresh election!

  • 42
    Tom the first and best
    Posted Wednesday, February 19, 2014 at 1:52 pm | Permalink

    40

    The election is yet to be declared void, that is likely to be done at the next hearing I think, it has only been said that declaring the election void is the only appropriate remedy.

  • 43
    Outsider
    Posted Wednesday, February 19, 2014 at 2:00 pm | Permalink

    Tom. I have had a look at Hayne’s judgement. He said:

    “On 13 December 2013, I ordered that the three petitions were to be heard and determined together, with the evidence, findings of fact and decisions in one petition also being evidence, findings of fact and decisions in the others.
    On the same day, I ordered that three questions of law be set down for trial separately from other issues raised by the petitions.”

    Having reread yesterday’s judgement, I think your post at 42. His judgement is confined to the three questions of law he posed on 13 December. Other issues relating to the petitions made to the court have not yet been resolved. I will slightly moderate my view on Kenny’s reporting on that basis – though I still believe he has mixed up the separate and unrelated issues of costs orders relating to the proceedings and the cost of holding a fresh election!

    Hayne J has already decided the substantive issue – that there is no relief available in these circumstances other than the voiding of the elction result. But you are right. He has not yet formally voided the election result and therefore has not yet ordered that a fresh election be held, notwithstanding that it is the only possible outcome in light of yesterday’s decision.

  • 44
    Posted Wednesday, February 19, 2014 at 2:01 pm | Permalink

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

    Is that not a declaration that the election is void, phrased in the passive voice?

  • 45
    Posted Wednesday, February 19, 2014 at 2:03 pm | Permalink

    Having read Outsider’s post, I guess the answer is no. But why the delay in making the actual declaration?

  • 46
    Outsider
    Posted Wednesday, February 19, 2014 at 2:06 pm | Permalink

    Psephos.

    I go back to my point about how frustrating High Court decisions can sometimes be!

    Hence my comment that the voiding of the election is inevitable. But as Tom points out, that order has not yet been made. Hayne J’s decision yesterday only dealt with the three questions he asked himself. Orders in relation to the petitions have not yet been formally made.

    For afficianados of the highly technical question of costs orders, his decision will be very interesting!! My bet is he will order costs against all parties to the proceedings who opposed the AEC’s petition for the election to be voided (given that the AEC has “won” the case), but no doubt that will be the subject of extensive submissions at tomorrow’s hearing.

  • 47
    Posted Wednesday, February 19, 2014 at 2:09 pm | Permalink

    Since David Johnston was the other party, I think all costs should be awarded against him. :)

  • 48
    Outsider
    Posted Wednesday, February 19, 2014 at 2:41 pm | Permalink

    Psephos. If only it were so simple.

    There were actually 3 petitions made to the Court, which have been considered concurrently.

    First, the AEC petition named as respondents Johnston, Bullock, Cash, Reynolds, Dropulich, Ludlam, Wang and Pratt.

    Second, Wang’s petition named as respondents all the above plus the AEC (but not Wang – obviously!)

    Third, somebody called Simon Mead made a petition naming the same respondents as the AEC’s petition, as well as the AEC as well.

    In terms of submissions made in response to the 3 questions of law posed by Hayne J on 13 December, the AEC is a clear winner.

    Johnston, Cash and Reynolds made a joint submission. Most of their submissions (but technically not all) were rejected by the Court. In that sense they “lost”.

    Wang is in a similar position and therefore also “lost”.

    Dropulich also “lost”, for the most part, in respect of his submissions.

    Ludlam has essentially “won” as his submissions (with one exception on a fairly technical point).

    The mysterious Mr Mead “lost” in respect of most submissions.

    Pratt and Bullock appear not to have made any submissions. Curiously, they were represented at the hearing by the same counsel (Lang and Heenan) who represented Mr Mead.

    How all this will be reflected in costs orders is highly problematic, otherwise than that it is hard to see costs being awarded against the clear winner in the proceedings, the AEC.

    As I say, a classic case for costs afficiandos!!!

  • 49
    Posted Wednesday, February 19, 2014 at 2:57 pm | Permalink

    Why was Johnston a party at all since his position was not in dispute?

  • 50
    pedant
    Posted Wednesday, February 19, 2014 at 3:07 pm | Permalink

    Outsider @ 48: I would have thought that this is an almost perfect example of a case in which the Commonwealth should be ordered to pay costs, as permitted by subsection 360(4) of the Commonwealth Electoral Act 1918. But for the stuff up by the AEC, a Commonwealth statutory agency, the petitions (at least in their present form) would not have been necessary.

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