As Justice Kenneth Hayne begins to examine the legal issues in the High Court challenge over the West Australian Senate election result, he will also discover a strange, non-legal fact about what happened last September.
We all believed that the 2013 Senate election was chaotic but it is now apparent that, despite the chaos, Australians voted with remarkable uniformity in the 2013 Senate election. While I do not claim to judge the legalities of the current WA Senate case, the High Court’s decision could potentially overturn that uniformity.
As I explain below, while different people were elected, and while the WA preference-swapping was bizarre, the recount of the Senate votes effectively produced the same result as the first count in terms of Senate control and, again, the same as the rest of Australia.
In the initial count of the polls, Australians elected one right-wing, non-major party senator in each state. In WA, Queensland and Tasmania the right-wing senator was a member of the Palmer United Party. In New South Wales it was a Liberal Democrat; in Victoria it was the Australian Motorist Party (which later aligned with Palmer); and in South Australia it was Family First.
All of these six right-wing senators quickly combined in an alliance – the so called ‘Six’ – to back the legislation Tony Abbott promised in the election campaign, subject to one caveat: that the Coalition would not link with the ALP or Greens to emasculate the current Senate voting system prior to the new senators taking office on July 1 (Abbott has won control of the Senate, October 9; How six senators with transform Australia, October 10).
In the recount in WA the Australian Sports Party defeated the Palmer Party (and the Greens defeated the ALP but the Greens and ALP take a similar stand on most major Abbott promises). Of course, given that some 1300 votes went missing, the WA recount is the subject of a legal challenge. But remarkably, like all the five other non-major party, right-wing Senate electees, the Australian Sports Party is likely to endorse most – if not all – the legislation backing the major Abbott promises. In other words, in a majority of cases there will still be a ‘Six’ should the recount result be endorsed by the High Court.
Remember that while endorsing Abbott promises may unite the right-wing, non-major party new senators, they also have separate agendas in other subjects. What is amazing is that while in each state there were remarkable gymnastics, the outcome for the final seat was basically the same – a Senate seat for a right-wing, non-major party – showing a clear unifying pattern among Australians.
If there is to be a new election in WA, the Senate may begin sitting before the result of that election is known. In that event, Justice Hayne will have to decide who represents WA in the Senate.
Again, if there is a new election for the WA Senate, so much will have happened that the result will bear no relationship to the original election (Abbott's nightmare is unfolding in WA, December 10). Like everyone else, I am not sure how the High Court will look at the legal case. There is certainly a moral case to say the initial count should stand because its accuracy was never challenged, while the voting outcome was similar to all other states. Even if the recount result is endorsed we are still duplicating the pattern.
Only if a completely new poll is ordered by the High Court will there be a result that’s likely to be out of line with the rest of Australia because of the new circumstances. And don’t forget there are two other non-major party Senators – Nick Xenophon, who is outside the above pattern, and a DLP Senator from Victoria who did not join ‘The Six’. Both were elected three years ago. The DLP, on many of the basic legislation issues promised by Abbott, may line up with the non-major party right wingers.
The High Court will of course look at many issues – including legal issues – but it’s important to underline that despite the apparent chaos, Australians used their electoral system to make very similar decisions in every state. Remarkable.