High Court Justice Kenneth Hayne, sitting as the Court of Disputed Returns, brought out the first part of his judgement in the case of the Western Australian Senate election from 2013.
His findings included that:
- The 1370 voters whose votes were lost were effectively “prevented from voting”,
- That it was not possible to combine the results from the original count for the 1370 missing votes with the results from the recount for the rest of the state,
- That Scott Ludlam and Wayne Dropulich (who won the final two seats in the recount) were not duly elected, and it was not possible to determine who was duly elected, and
- That the “only relief appropriate is for the election to be declared void”.
Justice Hayne has not issued a ruling ordering that the election is to be declared void, but all commentators seem to agree that the judgements he has made today leave only the option of a fresh Senate election.
The Court will issue further rulings on Thursday 20 February, when Justice Hayne is expected to rule on whether a fresh election is called.
If the election is voided this week, the earliest possible date for an election will be March 29. Other possible dates will be in April and May. An election will need to be held by May to ensure the result is concluded prior to the new Senate taking office on July 1.
The choice of election date will be effected by two weeks of school holidays in April, which includes the Easter and Anzac Day long weekends.
The Governor of Western Australia will need to issue the writs for the upcoming election. Due to a lack of a precedent, it is unclear who will give advice regarding an election date. In the case of by-elections in the House of Representatives, the writs are issued by the Speaker, rather than by the Governor-General, and the Speaker’s membership of the governing party usually gives that power influence over the selection of the date.
In Senate elections, the date is determined by the Prime Minister advising the Governor-General, and then the state Governors issuing writs. It is unclear whether Prime Minister Abbott or Premier Barnett would be in a position to give advice to the Governor as to the date of the election.
Current polling suggests that the Liberal Party may struggle to again elect three Senators at a new election in WA. The quarterly state breakdown of Newspoll’s federal polling for the last quarter of 2013 saw the Liberal Party two-party-preferred vote in Western Australia drop to 50%, down from over 58% at the federal election.
If the primary votes in the poll were reflected in the Senate result, the ALP and the Greens would be able to elect three candidates between them, with the Liberal Party competing with minor parties for the final seat.
Both possible outcomes of the September election saw the ALP and Greens lose one seat between them: such a new result would mean that neither party of the left would lose a seat in WA, with both Scott Ludlam and Louise Pratt holding on.
In contrast, the third Liberal senator-elect, Linda Reynolds, was comfortably elected in September but would be in serious danger of losing at a by-election.
It will be a fascinating race to watch.