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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… Read more »
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… Read more »
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… Read more »
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… Read more »
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… Read more »
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… Read more »
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.

Tom the first and best
Guest
Tom the first and best

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.

Outsider
Guest
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… Read more »
Jackol
Guest
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… Read more »
Socrates
Guest
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… Read more »
Tom the first and best
Guest
Tom the first and best
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… Read more »
Psephos
Guest
[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… Read more »
Arrnea Stormbringer
Guest

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.

Arrnea Stormbringer
Guest

@ 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).

Tom the first and best
Guest
Tom the first and best
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… Read more »
Psephos
Guest
[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… Read more »
Graeme
Guest

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?

Socrates
Guest

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.

Compact Crank
Guest

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

Antony GREEN
Guest

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.

pedant
Guest

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.

Graeme
Guest
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… Read more »
Antony GREEN
Guest

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.

Psephos
Guest
[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,… Read more »
ruawake
Guest

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.]

dave
Guest

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.

ruawake
Guest

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.]

Tom the first and best
Guest
Tom the first and best

14

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

ltep
Guest

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

caf
Guest

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

James J
Guest

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.”

dave
Guest

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.

ltep
Guest

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.

James J
Guest
NathanA
Guest

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.

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