Australian Federal Election 2016

[regan is true fullback]

think positive said:

[David]

[Pies4shaw]

Sue v Hill is the case I was relying upon, although I was relying on the Court's decision rather than the Wikipedia "scrambled egg" version. In any event, Sue v Hill is authority for, amongst other things, the propositions that a candidate who falls foul of section 44(i) of the Constitution cannot be "duly elected" to the Senate, that the election in which the candidate stood is not therefore automatically void and that the "replacement" should be determined by a recount (which is what I said should occur).

Formally, the Court's answer to the question about a recount was that it was "inappropriate to answer" the question but the relevant reasoning is set out in paragraphs [178] and [179] of Justice Mary Gaudron's judgment:

"178. In In re Wood[222], this Court considered whether, in the case of the return of a candidate who lacked the qualifications to be elected, the Senate election in question should be declared absolutely void and a new election ordered, on the one hand, or a recount ordered on the other. In that case it was held that, "no effect [could] be given for the purpose of the poll to the placing of a figure against the name of a candidate who [was] not qualified to be chosen", but nonetheless, "[t]hat [was] no reason for disregarding the other indications of the voter's preference as invalid."[223] In the result, a recount was ordered, the recount to be conducted in the same manner as required by s 273(27) of the Act where a vote is cast for a deceased candidate. That was because, "the true legal intent of the voters ... [could thereby] be ascertained"[224]. So it is in this case. That being so, there is no basis for declaring the election absolutely void. Accordingly question (d) in each of the cases stated should be answered "No".

179.Although nothing was put to suggest that the true intention of the voters cannot be ascertained by a recount, it emerged at the hearing that there was a real question as to the manner in which the recount should be conducted. As formulated, question (e) posits that a recount should be conducted only for the third Senate position. However, it is possible that a recount of all votes might have consequences for the persons returned as the fourth, fifth and sixth Senators. Those persons were not represented at the hearing. It may be that that was because, having regard to the terms of question (e), they were of the view that their positions would not be affected by a recount. In the circumstances, the appropriate course is to answer question (e) in each of the cases stated "Inappropriate to answer", leaving the issue to be determined by a single Justice after hearing such submissions, if any, as the persons returned as the fourth, fifth and sixth Senators wish to make."

See: http://www.austlii.edu.au/au/cases/cth/HCA/1999/30.html

What occurred after that was that on 29 June 1999, Gleeson CJ, sitting alone (in the High Court, not some "lower court" - thanks, Wikipedia), determined during a further hearing of the matter that:

"Following the recent decision of the Full Court of the High Court in this matter, it is necessary to determine who should be declared elected in the place rendered vacant as a result of the conclusion concerning the disqualification of Mrs Hill. It is understood from the evidence that there will be little, if any, difficulty in determining the identity of that person.

There is also a possible question as to what, if any, consequences the disqualification of Mrs Hill might have for other candidates who were declared elected below her, that is to say, Senator-elect Ludwig, Senator-elect Mason and Senator Woodley, and for persons following them who were not returned as elected, in particular, Senator O'Chee, Ms Piasecki, Mr Hutton and Mr Bradford.

Senior counsel for the Attorney-General and counsel for Senator Woodley and Senator-elect Mason have made it plain that, if necessary, they will wish in due course to argue that, having regard to the provisions of the Commonwealth Electoral Act 1918 , and to the form of the petition in this case, it would not be open to the Court to make any order or declaration which would disturb the election of Senator-elect Ludwig, Senator-elect Mason or Senator Woodley.

On the other hand, unless and until a re-count is conducted by the Australian Electoral Commission, it is not possible to determine whether that question is purely hypothetical and who, if the question is not purely hypothetical, might be affected by it.

In those circumstances, it is proposed by the Australian Electoral Commission, and agreed by the Attorney-General and all those represented before me this afternoon, that the appropriate course to take at this stage is to direct a re-count. That will have two immediate consequences. It will conclusively identify the person who is to take the place of Mrs Hill and, in addition, it will disclose whether the issue to which I have earlier made reference is or is not hypothetical and, if it is not hypothetical, what person or persons might have a practical interest in its resolution.

I accept that the course that has been proposed to me by the Australian Electoral Commission is the appropriate course to follow in those circumstances, making it clear that by directing a re-count for the purposes I have mentioned I am not intending in any way to foreclose the argument which the Attorney-General and others have foreshadowed.

Some amendments to the form of orders and the schedule attached to that form have been proposed and agreed to in the course of discussion this afternoon and I am content with those amendments.

I will adjourn the further hearing of this matter until 3.45 pm today in order to enable counsel for the Australian Electoral Commission to re-cast the orders and the schedule to the orders, and I will resume sitting at that time and make orders as I have foreshadowed. "

See: http://www.austlii.edu.au/au/cases/cth/HCATrans/1999/224.html

Thus, there was a recount but, as I understand the position, the result of the recount didn't affect any of the other positions on the ballot and merely, as it happened, elected the next One Nation candidate in the list. I should also observe that the relief sought from the High Court in that case was very narrow and a more mischievous prayer for relief, this time, might throw the whole thing open in the rather entertaining manner foreshadowed (but, as I understand it, never decided) by Gaudron J and Gleeson CJ.

Hence, my question why the "prevailing view" amongst journalists was that this man would just be replaced by the next One Nation candidate. As I said, that might be the practical result of a recount but a recount is necessary to determine who has the pertinent votes.

If it helps, the recount after Sue v Hill seems to have taken only a couple of days (the order declaring Harris elected in place of Hill was pronounced the following Friday: http://www.austlii.edu.au/au/cases/cth/HCATrans/1999/225.html. )

[David]

Thanks P4S, that makes sense (and it means that either the journalists in question got it wrong or I misunderstood them). I'm guessing that, due to the changes in Senate voting rules, a recount would be much more laborious this time around. If and when it transpires, I'll keep an eye on my favourite psephologist bloggers to see if they think there's any chance of a more catastrophic outcome (e.g. the Greens losing 12th spot to the Nationals). As you say, I suspect that's pretty unlikely.

Edit: Kevin Bonham is already on the case:

http://kevinbonham.blogspot.com.au/2016/08/senate-reform-performance-review-part-1.html?m=1

[Pies4shaw]

You didn't misunderstand them - they got it wrong. I wasn't suggesting that you had mis-described the "prevailing view", rather I was asking why that "prevailing view" had been spouted in the media.

[Jezza]

Thanks for citing that case P4S.

I'm currently studying that case for Constitutional Law at university so it was interesting reading your post about the case.

[think positive]

Is it over yet?

[stui magpie]

Not quite.

Little Bill has finally finished celebrating since someone explained to him that he isn't actually Prime Minister so is starting his campaigning for the next one.

[think positive]

so whos the boss?

[David]

Nick X...