Former LNP MP Ewen Jones

First up, The Australian reports that “the Senate count is also due to be finalised this week, with results to be known in South Australia and Western Australia tomorrow, Victoria and Queensland on Tuesday, and New South Wales on Wednesday”.

The other big news today was the finalisation of the recount in Herbert, which delivered Labor a final winning margin of 37 votes. The AEC should declare the result some time this week and must return the writs by next Monday, initiating a 40-day period in which a challenge can be made before the High Court, sitting as the Court of Disputed Returns.

This court can either uphold the result, reverse it, or order a fresh election. Overturning could conceivably happen if the court ruled ballot papers had been incorrectly interpreted, or declaration votes wrongly excluded. However, all the talk has been of a byelection initiated on the basis that voters had been wrongly denied votes in numbers exceeding Labor’s winning margin.

[Poll Bludger: what the hell is going on in Herbert?]

There are three stories circulating as potential basis for such a challenge: the Australian Defence Force’s confirmation of a failure to vote by 628 Australian Defence Force personnel participating in Exercise Hamel, a military exercise conducted around Port Pirie, Port Augusta and Whyalla in South Australia, including up to 85 who might have been based in Townsville; claims that people were unable to lodge absent votes in the neighbouring seat of Kennedy due to a shortage of ballot papers; and a statement Senator Ian Macdonald says he has from medical staff a Townsville Hospital that AEC officials neglected to provide ballots in a particular hospital ward.

A number of legal precedents are of note here. At the Queensland state election in July 1995, the Labor government under Wayne Goss eked out a one-seat victory that depended on a 16-vote victory in the Townsville seat of Mundingburra. This result was voided by the Court of Disputed Returns on the grounds that 22 military personnel serving in Rwanda did not receive the postal votes they applied for in time due to a transportation bungle by the Australian Defence Force, combined with errors made by the Electoral Commission. A byelection was ultimately held the following February and won by the Liberals, resulting in the fall of Goss’ government.

On a purely legal level, the relevance of a case centred on postal votes to the claimed irregularities in Herbert is limited. However, the centrality of Defence Force personnel to the Coalition’s case is very important as a matter of political strategy. The Mundingburra byelection was followed at the end of that year by another litigation-initiated electoral re-match — this time in the federal seat of Lindsay in western Sydney, where Jackie Kelly’s win for the Liberals had been overturned on grounds of her employment by the RAAF, an “office for profit under the Crown”.

On that occasion, Labor was humiliated when voters gave Kelly a further 5.0% to add to the 11.8% swing she received at the election. If a fresh election in Herbert is to have any chance of being to the Liberals’ ultimate advantage — a very dubious proposition under the best of circumstances — it is crucial that it be presented as a means of redressing the disenfranchisement of military personnel, and not the sort of sore-loser act Labor was indulging in in Lindsay.

The second clearly relevant precedent from federal level was the seat of Ballarat at the 1919 election, when Labor’s Charles McGrath was defeated by Nationalist candidate Edwin Kerby by a margin of one vote. This was overturned on the grounds that a handful of voters had been wrongly denied ballots due to various official errors, which, in two cases, involved voters being denied absent votes.

At that time, polling stations were issued with blank ballot papers for absent voting, on which officials would fill out the names of the candidates for the relevant division and provide them to the vote. However, a polling station in Corangamite ran out of such papers, and the presiding officer advised deprived voters to await the arrival of new papers. None arrived, and after several hours, the officer decided instead to issue altered ballot papers for Corangamite — but by this time, two affected voters from Ballarat had given up and gone home.

In response to this episode, a number of legislative changes were made in 1922 — one of which proved to be significant after the Western Australian Senate election was botched in 2013, and another of which has an important bearing on the present circumstance. In determining whether the official errors in Ballarat at the 1919 election were sufficient to warrant a fresh election, the court deemed it material that the deprived voters had intended to vote in a way that would have changed the result.

[Poll Bludger: how did the pollsters do?]

It was felt this violated the secrecy of the ballot, so the Electoral Act was changed to specify that no such evidence was to be admitted. After the 2013 election, this section was invoked to refute the argument that the voting intention of the 1375 voters whose ballots had gone missing during the WA Senate recount should be ascertained with reference to the first count.

This changed to the act widened the scope for potential challenges, so the 1922 amendments also imposed limits on who could give evidence about having been denied a vote. This survives today as section 367 of the Electoral Act, which allows evidence to be admitted only from those who made a claim to vote. Media reports say the AEC set up seven polling stations within the Exercise Hamel area at which 1274 votes were cast, and that a further 1371 force members were taken to vote at surrounding population centres. However, 628 did not cast votes for reasons the Defence Department has declined to shed further light on. Unless these members actually fronted up to vote and were knocked back, section 367 would allow no basis for the court to hear their complaint.

As well as that, The Courier-Mail reports the Liberal National Party has written to postal vote applicants in an attempt to identify anyone who failed to receive their ballot paper. The party’s efforts to cover all bases calls to mind another legal challenge at state level in Queensland, following Labor’s 74-vote victory in the Brisbane seat of Chatsworth in 2009. An LNP fishing expedition cited 130 postal vote applications for which no vote was processed, 30 cases of multiple voting, and various other bits and pieces. Most of these were deemed to have had innocent explanations, and the 10 genuine discrepancies that were identified were too few to influence the result. But with the federal division of Herbert having three times as many voters as the state district of Chatsworth, and fewer than half as many votes having decided the result, there seems to be an even-money chance that a court challenge will give the Coalition what it appears to believe it wants.

*This article was originally published at The Poll Bludger