Western Australians get to do it all again

High court justice Kenneth Hayne, sitting as a court of disputed returns, announced yesterday his findings on last year’s Senate election for Western Australia. Hayne’s findings amount to a voiding of the election, leaving no doubt that when the hearing resumes tomorrow he will make an order for a fresh election.

You can read the full judgement here: those who are enthusiasts for electoral law will find it interesting reading. For the larger and no doubt saner number of readers, what follows is an attempt to explain it simply and to summarise its importance.

There were two problems with the Western Australian Senate count: the fact that, when counted the first time, it was extremely close, with the critical exclusion decided by just 14 votes; and the fact that, when it came to recounting it, it was discovered that a substantial parcel of ballot papers (1,370 of them) had gone missing.

Neither problem on its own need have been fatal, but the conjunction of the two clearly was. Recounts always pick up errors, as this one certainly did, and because the missing ballot papers couldn’t be recounted, it was impossible to be confident that they would not have changed the result.

But Hayne actually reached this conclusion by a shorter and, to my mind, slightly dubious route.

The Commonwealth Electoral Act provides that defects in an election should not lead to the election being declared void if those defects did not affect the result. But it adds a proviso: if the defect is that some voters have been prevented from voting, then the court, in working out whether or not this affected the result, must not enquire into how they intended to vote. (Because we take the secret ballot seriously.)

What’s that got to do with what happened in Western Australia? The point is that in arguing for a fresh election, the Australian Electoral Commission invited the court to find that the voters whose ballot papers went missing had therefore been “prevented from voting”. Justice Hayne, counterintuitively, agreed.

With that finding, the rest follows easily. The tally from the first count in respect of the missing ballot papers ceases to be admissible as evidence, because it amounts to looking at how those voters intended to vote – even though the lay person would say there’s no question of “intention” about it, since their voting was an accomplished fact. And without looking at that tally there’s no possible alternative to a fresh election.

I think the outcome here is correct, but Hayne’s finding is more sweeping than it needs to be. On his reasoning, the extreme closeness of the result becomes irrelevant: even if the margin were a thousand votes, it would still be possible for the missing ballot papers to have made the difference, if you don’t permit yourself to enquire into who they were for.

If the AEC keeps losing bunches of votes, then that’s a precedent that may have unfortunate consequences at some point in the future.

But either way, Western Australians will be heading back to the polls, in what amounts to Australia’s biggest ever by-election. They will do so with knowledge not just of the Abbott government’s performance in its first six months, but also of just how they can affect its Senate prospects. As Rob Burgess put it this morning, “WA voters are like poker players who have seen all the other players’ hands, but still get to pick up one more card and place bets.”

So what should we be looking for in a fresh election?

Although the recount ostensibly changed the result, in terms of the balance of power in the Senate both results were fundamentally the same. The Liberal Party got three senators, Labor and the Greens two between them, and the last went to a right-wing minor party (either the Palmer United Party or the Sports Party).

That 3-2-1 result is the best that the Coalition can hope for, so its aim will be to repeat it. The opposition’s goal will be to get both the second Labor candidate and the Green elected; most probably at the expense of the minor candidate (3-3-0), but ideally at the expense of the third Liberal (2-3-1).

All three possibilities preserve the basic situation in relation to Senate control after 1 July: neither the government nor the Labor/Greens combination will have a majority, with both depending on an unpredictable mix of minor parties. But an extra opposition seat, especially if it’s taken directly from the government, would make the Coalition’s task just that little bit harder.

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