WA Senate: Court on the verge of calling new election


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.

Liked it? Take a second to support the Tally Room on Patreon!


  1. The AEC has good procedures only let down by someone who did not follow them through incompetence or some criminal act in loosing the disappeared ballot papers. Will it be a cast of thousands in this re run 1/2 senate election in WA or just the usual suspects ALP, Lib etc nomonating as candidates.

  2. One important factor that might come into this is that preference negotiations will be different than at a general election. Most significantly, there are no lower house preferences to trade off as part of preference deals. Will Labor still preference the Greens, without having the usual trade-off of receiving Greens preferences in the lower house, or will Labor prefer to deal with right-wing minor parties? If Labor doesn’t preference the Greens above the assorted minor parties, and we see a repeat of the tight preference sharing amongst the minor parties, it could be quite hard for Ludlam to get re-elected.

  3. “Will Labor still preference the Greens,”

    Labor would only consider not preferrencing the Greens that if they felt certain that they would pick up the final Left spot, which appears unlikely. Otherwise, do you think the Greens or another right-wing nutter would help Labor spoil the Abbott Government in the Upper House? Seems pretty obvious.

  4. But that’s not exactly Labor’s past form. Even after the Steve Fielding experience, they’ve still risked preferencing parties like the Shooters and Country Alliance at state elections. There are many in the ALP who want the party to distance itself from the Greens. Obviously it would be a foolish move, but I wouldn’t be too sure they won’t do it.

  5. I wonder how much state politics would interfere with this. The six-month old federal govt might be able to pass itself off as brand new and shiney and unimpeachable (especially 3000 km from Shepparton or Adelaide), but the six-year old state govt can’t, and for a state-wide election Barnett and Abbott probably won’t be able to avoid treading on each others’ toes.

    Take the shark cull, for example. The West (the paper, not the state) is rabidly for it, Labor are tepidly against it, Barnett and co are doing it, and it’s caused the biggest public protests against anything in WA in a few years (there were probably more people at Cottesloe Beach last month than that heavily-sponsored event when Gina Rinehart rode on the back of a truck with pearls around her neck last year). That right there is a gimme for the Greens, and a wedge issue for Labor – being pro-cull will play them off against the Greens, while being any form of anti-cull will play them off against the West (as seen by yesterday’s editorial). It’s something that’ll give McGowan as many grey hairs as the two Lib leaders.

    Then there’s schmucks like Joe Francis and Kim Hames, causing nothing but bad press for the state Libs. With the recent escapes from prisons run by Serco (some of them refugees, some not), I can imagine a press conference involving Francis and Scott Morrison being rather uncomfortable, no matter how many times they try to invoke “ermahgerd stoptheboats!”.

    Keep an eye on what side the West takes. They tend to lean Liberal, but also generally anti-govt, and they haven’t spared Barnett’s mob the lash lately. Remember, this is the only state in Australia with a single daily paper from neither Murdoch nor Fairfax, and as Alan Carpenter and Jim McGinty learnt to their cost back in 2008, it ain’t good to piss ’em off. Get the popcorn.

  6. rerun possibility alp 2 libs 2 gr 1 Pup 1
    the libs in wa are on the nose at both a state and federal level

  7. In “The choice of election date will be effected…” that should be “affected”. (The choice of election date will be affected by external issues like school holidays and parliamentary recess, and will be effected by the Governor of WA issuing writs).

    Presumably it should be Barnett offering the formal advice on election date, in the same way that the States are responsible for filling casual vacancies.

  8. The Greens too have of course engaged in the odd preference roulette, such as preferencing the Shooters and the Libs above Labor in a couple of regions/seats at the WA state election.


    With the dozens of parties likely to contest, I would expect the Lib/Labor/Green/Palmer parties to be vying strongly for preferences from microparties. The sooner optional or limited (say one transfer) preferencing comes in the better, but in the meantime no party can fairly claim to be puritan on preference deals.

Comments are closed.