WA voters will on Monday learn if the state will return to the polls for a fresh Senate election. Source: AAP
THE voters of Western Australia will on Monday learn if they are to return to the polls for a second Senate election.
Justice Kenneth Hayne is deliberating on submissions from candidates with the highest number of votes in the first count of WA's Senate ballot, the senators elected in the recount and the Australian Electoral Commission (AEC).
Each is vying for a different outcome.
The AEC is calling for the entire Senate election to be declared void and held again.
One of its arguments is that 1370 voters whose ballots were lost in between the initial scrutiny and a recount - that was requested, rejected, then granted upon appeal - have been denied the chance to vote.
Andrew Bell, acting for the AEC - which itself lost the ballots - said on Thursday the availability of the ballot papers was "essential" in a recount.
"The 1370 were prevented from voting because their votes were not counted or capable of being counted in the count that mattered," Mr Bell told the Court of Disputed Returns during the two-day hearing.
The first count delivered the final two WA Senate places to Zhenya Wang of the Palmer United Party (PUP) and Labor's Louise Pratt.
After a recount the candidates elected to the fifth and sixth Senate positions were the Australian Sports Party's Wayne Dropulich and Greens Senator Scott Ludlam.
Lawyers for the ALP and Mr Wang are calling for the first result to be upheld.
The ALP's lawyers say the recount was not ordered because of an identified problem with the first count, but because the margin was so slim "it was worth checking".
Anthony Lang, acting for ALP WA state secretary Simon Mead, said had the appeal for a recount been refused, the fact of the 1370 ballots being lost would be irrelevant.
"There would have been no argument for the first result being invalid," Mr Lang said.
"We submit that it's not necessary to void the whole election and start again."
The alternative argument put by Mr Mead is that if the first count is not deemed valid, another ballot should be held.
Kenneth Barlow, acting for Mr Wang, said the court should strive to avoid declaring the election void.
Mr Dropulich, however, believes the second count is the one that should stand.
Joshua Thomson, for Mr Dropulich, said the election cannot be declared void if the omission of the 1370 votes during the recount did not affect the result.
"When I speak of the result, what I mean is not the margin but whether the right candidates are returned," Mr Thomson said.
Mr Dropulich, in agreement with lawyers representing Liberal Party candidates, says those voters whose ballots were lost were not denied the chance to vote as the meaning of vote "does not extend to whether a vote has been validly counted".
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