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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.

  • 51
    Tom the first and best
    Posted Wednesday, February 19, 2014 at 3:23 pm | Permalink


    Because, since the Senate switched to PR in 1949 and especially since Senate by-elections were abolished by the 1977 referendum, it would be out of place to order only the Senate seats in dispute go back to the polls and as such that means voiding of the election of the 4 Senators whose election is not in doubt and thus they are directly effected by the result a should be parties.

  • 52
    Posted Wednesday, February 19, 2014 at 3:23 pm | Permalink

    Pedant. Thank you for drawing that to my attention. In some respects it might make the whole issue of costs orders even more problematic! I was falling into the error of thinking that costs issues would be disposed of in the same way as other civil litigation matters.

    I wonder what submissions the AEC will make on that point?

    The proceedings certainly arose due to the AEC’s stuff up, and that would therefore be a basis for arguing that costs of all directly affected parties should, in fairness, be met by the AEC. I shouldn’t allow myself to be so distracted by such esoterica but I will await Hayne J’s further orders with interest!!

  • 53
    Posted Wednesday, February 19, 2014 at 4:09 pm | Permalink

    Yes Tom I know all that (rolls eyes). But why does that make him a party to the court case?

  • 54
    Tom the first and best
    Posted Wednesday, February 19, 2014 at 4:41 pm | Permalink


    Because the AEC took all that into account decided he should be a respondent in the case.

  • 55
    Posted Wednesday, February 19, 2014 at 4:53 pm | Permalink

    Psephos @ 53: Presumably because the AEC, by seeking to have the election declared void, is disputing the election of all six senators-elect, including Senator Johnston.

  • 56
    Posted Wednesday, February 19, 2014 at 7:34 pm | Permalink

    Johnston, indeed everyone declared elected, had to be parties as voiding the election voided their seats.

    But you’ve hit on what may be a tricky point of law re costs. The AEC formally won the argument but is the self confessed cause. I’d be surprised if they sought to avoid costs orders against them. It would be unjust for the parties to be out of pocket for offering defences to the petition though it may be that Mead (ALP) and Wang (PUP) may have to bear any extra costs to themselves generated by their ‘extra’ petitions. The Greens I believe are already out of pocket for their unnecessary but short lived petition.

    In a way, the only new law of likely lasting significance may be the costs ruling.
    The ‘votes-mishandled = prevented from voting’ ruling, super technical and artificial as it is, could theoretically apply in other cases of misadventure in close elections. But it would only matter where votes were lost/knicked after the original scrutiny. You could be mischievous and say Hayne’s ruling provides an incentive to knick ballots (any old ballots would do) if you know you are losing a very close race…

  • 57
    Arrnea Stormbringer
    Posted Wednesday, February 19, 2014 at 10:40 pm | Permalink

    @Outsider 48

    This “mysterious Mr Mead” is the ALP state secretary in WA.

  • 58
    Posted Saturday, February 22, 2014 at 8:00 am | Permalink

    I have now had the chance to peruse the transcript from Thursday’s proceedings before Hayne J. The only matter of substance dealt with related to costs. As foreseen by Pedant, the Commonwealth was ordered to pay the costs of all parties.