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Although the Court of Disputed Returns has not yet formally declared that the WA half-Senate election was void, Justice Hayne’s judgment has made it clear that this is the necessary outcome. Below is a discussion of the facts, the case and the outcome.

The Background

On 7 September 2013, a half-Senate election was held in Western Australia (and other States) to fill six Senate seats that will become vacant on 1 July 2014. Three Liberals and one Labor candidate were elected to the fist four spots. The fifth and sixth spots were initially announced being won by Zhenya Wang (Palmer United Party) and Louise Pratt (ALP). The election was so close, however, that a re-count was requested and granted before any result was officially declared.

During the re-count, it was discovered that 1370 of the ballots had gone missing. Without these ballots, the result was different, with Wayne Dropulich (Australian Sports Party) and Scott Ludlam (Greens) declared as winning the fifth and sixth spots.

The Electoral Commissioner concluded that the result of the election could not be known and there was a real chance that the declared result would have been different if the missing ballots had been able to be included in the count. The Electoral Commissioner therefore petitioned the Court of Disputed Returns to declare that the half-Senate election in Western Australia was void and that a new election should be held.

The various political parties presented tortured arguments to the Court in an attempt to secure the outcome that best suited their candidates, being either that the earlier counts should be restored, or the re-count outcome should prevail. No one seemed to want a fresh election, except the Electoral Commission.

The facts

The facts in relation to the polling and scrutiny were as follows. When the election was held, a first count took place at polling places on the evening of the poll. A second count, known as the ‘fresh scrutiny’ was then held in each electoral division. It assessed the total number of first preference votes for each candidate and the number of informal votes. The above-the-line votes were recorded and entered into the computer system. Those votes, plus the informal votes, were then bundled up and sent to a warehouse for storage. The below-the-line votes, which are more complex, were all sent to the central office for manual entry into the computer system.

The Electoral Commission’s computer then conducted a number of ‘counts’ that allocate preferences. These involve the exclusion, at different stages, of the candidate with the lowest number of votes and the redistribution of his or her preferences to the next preferred candidate remaining in the count. The crucial point in the WA Senate election was on count 141 at the point of the exclusion of the 50th candidate. The two candidates at that stage with the lowest votes were Mr van Burgel (Australian Christians) and Mr Bow (Shooters and Fishers). If van Burgel had the higher number of votes, the rest of the preference distribution would have given a decisive victory to Dropulich and Ludlam. If Bow had the higher number, it would have given a decisive victory to Wang and Pratt.

According to the ‘fresh scrutiny’ Van Burgel was beaten by Bow by 14 votes, leading to the election of Wang and Pratt. However, when the re-count took place, two factors changed. First, due to the more experienced officials and scrutineers, the assessment of the formality of some of the votes changed. The total number of informal votes increased by 324. There were 3,913 ballots that were treated differently from the fresh scrutiny. Secondly, the missing votes, comprising 120 informal votes and 1250 above-the-line votes, were excluded from the count. The result was that van Burgel had 12 votes more than Bow. This meant that Dropulich and Ludlum were declared to have won the fifth and sixth Senate seats.

However, if the information known about the missing votes from the ‘fresh scrutiny’ was factored into the computer, along with the changes in the assessments of re-scrutinised votes and the resulting changes in preference distribution in the re-count, the result would have been that Bow would have had one more vote than van Burgel, causing Wang and Pratt to be elected.

Given that the reconstructed count turned upon one vote and that no one could guarantee that every single one of the 1370 missing votes had been accurately assessed as formal or informal and correctly recorded, no one could say with confidence whether that one vote margin would be sustained. If, for example, the votes cast for van Burgel and Bow were even, then on a back-count, van Burgel would have remained in the count, and Dropulich and Ludlam would have been elected.

The Law

The Court of Disputed Returns has very limited powers in relation to elections. Where an ‘illegal practice’ has occurred (including failure to comply with provisions of the Act), it can declare that candidates who were returned as elected were not elected. It can declare that other candidates were duly elected. It can also declare an election to be absolutely void. There are two conditions for doing so. The Court must be satisfied that it was likely that the outcome of the election was affected by the illegal practice and that it is just to make such a declaration.

In dealing with a challenge, the Court usually has the benefit of being able to assess the ballot papers. The problem in this case was that some of them were missing. The question then was whether the Court could consider the earlier counts, which had taken into account those ballots, in order to reconstruct an outcome.

The Commonwealth Electoral Act provides that if anyone was ‘prevented from voting’, the Court cannot admit evidence of their voting intentions. This was an important element of the case, because it affected what evidence the Court could rely upon in reaching its decision.

The Court of Disputed Returns

Section 354 of the Commonwealth Electoral Act provides that the High Court shall be the Court of Disputed Returns and shall have jurisdiction either to try a petition or refer it, or part of it, for trial to the Federal Court of Australia. Its jurisdiction may be exercised by a single judge.

Section 368 states that all decisions are final and cannot be appealed. While a previous challenge to the constitutional validity of this provision has failed in relation to the determination of a challenge by the Federal Court (Smith v AEC [2009] FCAFC 43), there is still the possibility that it could be challenged as unconstitutional in relation to appeals from a single Justice of the High Court to the Full Bench.

Given the political importance of this case, one might have expected the Full Bench of the High Court to have sat as the Court of Disputed Returns. Surprisingly, it provided only a single judge bench comprised by Justice Hayne. This had ramifications for the case, as a single judge is bound by decision of the Full Court and therefore has less flexibility in dealing with precedents.

The Court of Disputed Returns’ judgment

There was no difficulty for the Court in identifying an illegal practice. The loss of the ballot papers gave rise to a number of contraventions of the Act. This was accepted by all the parties. The issues were then whether the illegal practices were likely to have affected the outcome of the election and whether it was just to make an order declaring the election void, or declaring candidates duly elected or not duly elected.

Much of the argument in the case concerned whether voters had been prevented from voting, as this was critical to the admission of evidence upon which the Court could rely. The provision that prohibits the admission of evidence of voters who have been prevented from voting was really intended to prevent people from taking the witness stand and being asked in court how they had intended to vote, as this would undermine the secrecy of the ballot. In this case, however, that prohibition was also regarded as capturing evidence of voting intention from earlier counts, even though it did not violate the secrecy of the ballot and identify the voting intentions of particular voters.

Some parties argued that the act of voting is complete when the voter places the ballot in the box. Others said that a voter could be prevented from voting if his or her vote wasn’t counted. Justice Hayne considered at [79] that ‘to vote’ means ‘to express or signify a choice’, but that the phrase ‘prevented from voting’ ‘extends to taking account of the expression or signification of the choice.’ He held that people were prevented from voting because their votes were lost and not counted. In reaching this conclusion, he drew on ss 7 and 24 of the Constitution and their requirement that the Houses of Parliament be directly chosen by the people. This, he concluded at [81], requires that ‘the lawful expression of every voter’s choice is taken into account in determining who has been chosen’.

The consequence was that he could not go back to the evidence of the earlier counts to determine the intention of these voters. It was not possible to mix and match from the various election counts to come up with a composite result. The Act required that the election outcome be ascertained by scrutiny of the ballot paper and once a re-count was directed, it required that the scrutiny begin afresh. That scrutiny could not be completed because of the absence of some of the ballot papers. Justice Hayne noted at [111] that the Act did not permit the making of ‘patchwork’ results.

As to whether the election outcome was likely to have been affected by the loss of the ballot papers, Justice Hayne concluded at [11] that without admissible evidence of voting intentions in the lost ballot papers, ‘the conclusion that the result which was declared was likely affected by the loss of the ballot papers is inevitable.’ This was because the critical margin of votes involved was 14, 12 or even just 1, depending upon which counts were used. Even though the evidence of earlier counts could not be admitted, Justice Hayne concluded that the margin was so small that it was ‘more probable than not that the loss of the ballot papers affected the result of the election which was declared.’

One of the parties made a rather ambitious argument that in the absence of evidence of voting intention, the Court had no evidence at all about likely outcomes and could therefore not find that any result was more likely than any other. It was therefore impossible to find that the result was likely to have been affected. This argument was summarily dismissed at [106].

Justice Hayne clearly stated at both [18] and [122] of his judgment that the Court must find that Mr Dropulich (Australian Sports Party) and Senator Ludlum (Greens) ‘were not duly elected’. He also stated that the Court ‘cannot declare who was duly elected.’ He concluded by stating that the ‘only relief appropriate is for the election to be declared void’.

The outcome

Despite making these findings on the questions of law, Justice Hayne did not actually declare the election void. Instead, he required the parties to come back before the Court for ‘argument about any remaining issue’ on Thursday, 20 February. This was probably a consequence of how the case was structured. Some of the parties had also asked the Court to review and determine the validity of certain challenged ballot papers. This would have involved taking evidence and making findings of facts. Justice Hayne was asked first to address certain legal questions. In addressing those questions, he found that there was no need to consider the validity of the reserved ballots. He then answered the legal questions asked of him. They did not deal with the making of orders to resolve the petition.

Hence, Justice Hayne decided to recall the parties on 20 February 2014. He will presumably then make any necessary orders to resolve the petition once the parties have been heard on the point. Given his findings on the legal questions, the only possible order would seem to be a declaration that the election was absolutely void.

The Act requires that in such a case a fresh election be held. It would then be a matter for the Commonwealth to nominate the polling date and the Governor of Western Australia to issue the writs for the half-Senate election. This is likely to happen in late April, after Easter, in order to ensure that a full Senate is available when it first sits after 1 July.

SUGGESTED CITATION: A Twomey, 'The case of the missing votes', Constitutional Critique, 19 February 2014, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).

[A shorter version of this post was published by The Conversation on 18 February.]