Western Australian will most likely head back to the ballot box within the next two months to choose six new federal senators after High Court justice Kenneth Hayne, sitting as the Court of Disputed Returns, concluded the Court could not determine the winners of the election and declared the result void.
The Australian Electoral Commission petitioned the High Court to have the Senate result declared invalid following an investigation by former AFP boss Mick Keelty into 1370 missing ballots, which disappeared during a recount that saw winners the final two of six senate slots change.
In his statement released today Justice Hayne said the Court considered three questions of law including “whether it could decide who should have been elected and whether it could come to that conclusion by looking at records made in earlier counts about the lost ballot papers”.
The Court held that it was precluded under the Act from looking at records of earlier counts of the lost ballot papers. It found that, without regard to the voting intentions recorded in those ballot papers, the conclusion that the loss probably affected the result of the election was inevitable.
The number of ballot papers lost far exceeded the margin between the candidates at the determinative point in the count. And the re-count yielded different tallies of votes and different decisions about rejection or acceptance of ballot papers from those reached in the earlier counts, in numbers which could not be dismissed as irrelevant or trivial.
The Court rejected the argument that it could determine who should have been elected by combining the results of the re-count with the records made in earlier counts about the lost ballot papers.
That method of ascertaining the result of the polling is one for which the Act does not provide. The Court concluded that it is therefore unnecessary for it to consider whether certain ballot papers had been wrongly accepted or rejected by the AEO in the re-count.
The Court will hold a further hearing on Thursday to determine the next step.
The decision could have major implications for the Abbott government, which is waiting until July this year for the new composition of the Senate to push through a number of bills.
The initial count gave the first four of six seats to three Liberals and an ALP candidate, with the ALP and Palmer United Party (PUP) grabbing the final two, but the result was so close, a recount saw the Australian Sports Party and Greens take the last two slots.
A new ballot, estimated to cost around $13 million, could be held be as soon as next month.
The Court’s full judgement is here.
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