Ludlam holds Senate seat in recount;
But possible by-election looms



news Greens Communications Spokesman Scott Ludlam has held his Senate seat in Western Australia following a controversial recount of the state’s Senate vote in September’s Federal Election, but the result is likely to be formally challenged by the rival Palmer United Party and may head to a by election because of the loss of 1,375 crucial votes.

Following the recount which took place over the past several weeks, the Australian Electoral Commission’s State Manager for Western Australia, Peter Kramer, announced the results of the recount and distribution of preferences for the election of six Senators for Western Australia.

The first four candidates to be elected — three from the Liberal Party and one from the Labor Party — maintained their positions, but the recount saw Australian Sports Party candidate Wayne Dropulich and Ludlam re-elected in fifth and sixth spot. Previously, the Palmer United Party and Labor had picked up additional Senate seats in WA.

However, it appears as though the result may be set to head to the Court of Disputed Returns. ABC election analyst Antony Green posted a comprehensive anlysis of the situation in Western Australia yesterday, writing that the AEC very likely knows that its call will be disputed, but that the issue couldn’t head to the Court of Disputed Returns until a result for the Senate in WA was declared.

“With such a close result, the Court may rule it has no confidence in deciding the result on the available ballot papers and order a new election,” wrote Green. “The Court will have to expedite a hearing and decision on this. There is still time to conduct a re-election for Senators to take their seats on 1 July, but that means holding the election by the latest in early May.”

“The election would go through exactly the same procedures as a general election. Writs would be issued, a 33 day campaign would follow, a polling day would be held followed by a count. Unless the High Court surprisingly decided differently, new nominations would be called for. Unless the High Court ruled that the roll as at 7 September be used, there would be a new close of rolls.”

Ludlam said at a press conference held over the weekend that he was “delighted” with the outcome, but acknowledged the issue was not yet finalised. “The saga is not over yet,” added Greens leader Christine Milne on Twitter on Saturday.

The Palmer United Party, which has already issued challenges in other electoral areas such as the seat of Fairfax, which party leader Clive Palmer was last week confirmed to win, issued a media release last week stating that the AEC should declare the recount invalid after what the party said was the “debacle” involving the 1,375 lost votes. It appears the votes were initially counted during the first count of the WA Senate votes, but were subsequently lost, meaning they were not able to be counted for the recount vote.

Ludlam, too, has previously advocated that the AEC should delay declaring the result of the WA recount until an investigation is completed into the missing votes. The AEC has appointed former Australian Federal Police commissioner Mick Keelty to conduct a review into the missing votes.

If Ludlam does eventually lose his seat, the news will come as a blow to the Australian digital rights community, due to Ludlam’s role over the past half-decade after he was elected in 2007 increasingly coming to focus on holding powerful government departments and law enforcement bodies, politicians, corporations and other groups to account for increasing privacy rights violations and the encroachment of telecommunications surveillance in the digital age.

However, Ludlam told the ABC over the weekend that he was confident of his position in retaining his Senate seat if a by-election is called for the Western Australian senate.

Looks like this saga is going to drag on for a while yet — very likely into early to mid 2014. I wouldn’t be expecting a final result for Ludlam anytime soon.

Image credit: Australian Greens


  1. Is this election going to be Australia’s “Hanging Chad” election?

    What does this mean for the next election, will the general voter further lose interest in voting and will this increase the already high numbers of invalid votes?

    Is now the time to bring in electronic voting with a corresponding paper receipt to allow both for voter evidence and vote auditing?

  2. It’s very unlikely there will be another election called by the High Court. The electoral Act and High Court precedent is very clear. The Act does not specify any requirements for the conduct of a recount. The Full Bench of the High Court provided a unanimous definition of a recount 1965:

    “The whole notion of a recount is that the first count is to be disregarded and that the election of candidates is to depend upon the result of the recount.”

    LACK; Ex parte McMANUS [1965] HCA 7; (1965) 112 CLR 1v

    S. 362(3) of the Electoral Act does not make allowance for lost ballots or any variation in the number of ballots between the count and recount. The recount is conducted entirely according to the rules set out for the first count and that involves counting all the ballots on hand. The High Court confirmed that a variation between counts would always be inevitable and comparisons between the counts are therefore impossible and irrelevant. The fact the recount showed a number of flaws in the first count is further evidence it cannot be accepted as legitimate over a recount, even under these circumstances.

    The Electoral Act makes it clear that a declared winner cannot be tipped out of their seat because of the “illegal” behaviour of a third party or persons unknown. The court can only overturn the result of the recount and call a new election if “the ballots would have changed the outcome of the election AND it is just to declare the current winners unelected”. Combined with the “evidence” going missing it is going to be almost impossible for the court to determine the lost ballots would have changed the results. On the “balance of probabilities” the court will be hard pressed to find that the most “just” outcome is a new election.

    The first critical step in seeing if this is true is the result of the Keelty investigation. If Keelty determines that the votes have gone missing through the illegal actions of persons unknown it will be almost impossible for the court to rule in any way other than to confirm the declared winners as legitimate.

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