The High Court of Australia, sitting as the Court of Disputed Returns, has today ruled that it cannot resolve the results of the Western Australia Senate election from the 2013 Australian federal election.
"The only relief appropriate is for the election to be declared void," Justice Kenneth Hayne said in his judgment handed down in Melbourne on Tuesday.
The court discussed questions of law that had arisen as a result of the extremely close election, in which the final Senate places for WA were separated by only 14 votes at a critical juncture in the count. The original count saw Greens Senator Scott Ludlam and Australian Sports Party candidate Wayne Dropulich miss out on Senate seats, which instead went to Palmer United Party candidate Zhenya Wang and Labor MP Louise Pratt.
Ludlam, a tech-savvy senator who has argued in favour of internet freedom and technology issues in the Senate during his six years of tenure, along with Dropulich successfully sought a recount from the Australian Electoral Commission (AEC) in October.
"While closeness of a particular count in the process of distributing Senate preferences is not in itself a basis for a recount under the Commonwealth Electoral Act 1918 (Electoral Act), it does allow the Electoral Commissioner to direct a recount should there be appropriate grounds on appeal," AEC Electoral Commissioner Ed Killesteyn said at the time.
"Having considered candidates' submissions and having further regard to the criticality of particular Senate candidate exclusion counts and the small margins involved in determining senators elect, I have decided that there should be a recount of all formal Western Australian above-the-line ballots and informal ballots — as determined by Divisional Returning Officers for the 15 WA electoral divisions in accordance with Section 273A of the Electoral Act."
During the recount, however, the AEC was forced to call in ex-Australian Federal Police chief Mick Keelty to investigate the disappearance of 1,375 votes.
"On behalf of the AEC, I apologise to the electors of Western Australia and to the candidates and parties for this failure of the AEC," Killesteyn said at the end of October.
"I wish to stress that Mr Keelty will undertake this investigation independently of the AEC, and will be able to avail himself of whatever resources and access staff and information he may require to assist his examination of this matter."
As a result, the AEC filed a petition with the High Court in November, calling for the WA Senate election to be declared void and a re-election mandated.
Ludlam, who was elected to the sixth Senate position in the state after the recount, filed a petition in December stating that if the court was satisfied that he was not elected, the election of all six senators should be declared void.
Today, Justice Hayne ruled that Ludlam and Dropulich were not duly elected in the recount and that the AEC's loss of the 1,370 votes likely affected the result of the election. The court also stated that it could not combine the results of the recount with the results of the initial count in replacement of the lost votes, as this is precluded by the Commonwealth Electoral Act.
The case will resume in court at midday on Thursday, February 20.