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Federal Politics 2013-

Feb 18, 2014

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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58 comments

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Outsider
Guest

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.

Arrnea Stormbringer
Guest

@Outsider 48

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

Graeme
Guest

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…

pedant
Guest

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.

Tom the first and best
Guest
Tom the first and best

53

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

Psephos
Guest

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

Outsider
Guest

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!!

Tom the first and best
Guest
Tom the first and best

49

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.

pedant
Guest

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.

Psephos
Guest

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

Outsider
Guest

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!!!

Psephos
Guest

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

Outsider
Guest

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.

Psephos
Guest

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

Psephos
Guest

“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?

Outsider
Guest

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.

Tom the first and best
Guest
Tom the first and best

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.

Outsider
Guest

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!

Psephos
Guest

[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.

Tom the first and best
Guest
Tom the first and best

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.

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