Eleanor Hall reported this story on Thursday, February 20, 2014 12:50:00

ELEANOR HALL: Well, it's looking like Western Australians will head back to the polls for a new Senate election - the first such election in Australia's history.



The Court of Disputed Returns has just declared the state's September senate poll void over the loss of 1,370 ballot papers.



Joining us now in Perth is election law expert Graeme Orr.



Dr Orr, what's your reading of this ruling from Justice Hayne? Should WA voters now be preparing to return to the polls?



GRAEME ORR: Oh, look it's inevitable and it's the wise and just and democratic outcome even though some of the reasoning that was used by the commission and the judge I think was quite technical and a little bit forced.



ELEANOR HALL: And if the election does go ahead it will be the first time in Australian history that a senate election is held in only one state. How will this affect the way that candidates campaign? Will there need for the usual minimum campaign period, for example?



GRAEME ORR: Sure, look I think once 100-odd years ago there was a senate election had to be re-held or partially re-held but you're right, it is quite different here and one thing that will be an issue will be resources because the major parties are a bit strung out after the last big campaign but all the Palmer Party will presumably have a large war chest.



ELEANOR HALL: Yes indeed. I mean there were several different results over the period of these various recounts and challenges weren't there. Do you have any indication of which parties are likely to benefit from a new election?



GRAEME ORR: No, we do know that the Liberal Party will be ropeable about this because they managed to get three senators elected and one of those senators will be at risk. The other issue, which you almost alerted to was there could be a huge ballot paper. There could be a ballot paper that physically cannot be printed in this country because under the technical laws, anyone in Australia can stand in the West Australian senate election as well as the 50-odd major, minor and micro parties and given this is like a big carnival by-election, we usually do see extra people wanting to stand either to push their bees in their bonnets or just for notoriety.



ELEANOR HALL: So you're expecting to see even more micro parties than last time?



GRAEME ORR: Well, not necessarily new ones registered because they won't have time to register but certainly there were parties that didn't stand who would be entitled to stand. They might have stood in other states last time and similarly there might be independents who don't even live in Western Australia who may want to get a bit of notoriety and that could be a real physical challenge to the limits of the system.



ELEANOR HALL: And how important will the result be in determining the balance of power in the Senate?



GRAEME ORR: It could be significant but we already know the balance of power will be held by a variety of minor parties so I don't expect that to change dramatically.



ELEANOR HALL: And so, just take us through the last results again then. How different could it be this time?



GRAEME ORR: Well, we might see you know one seat shift. Effectively last time we had three Liberals elected, one or two Labor people elected and either a Green or a minor party or a Katter Australia Party so we might see that final one or two seats shift but I don't think it is going to have a huge impact on the Senate but it may affect the question of who Mr Abbott has to deal with in the Senate.



ELEANOR HALL: And are you, are you able to take us through why the court took two days to make this judgement? I mean it was a little odd given the result was two days ago, that it sort of had another hearing to tell us yes, and there's going to be an election.



GRAEME ORR: Yeah, look formally he was only answering some questions of law but he made it very clear in his judgement on Tuesday that the inevitable consequence of that would be an order that the election was void but he did have to hear from all the parties including the Liberal Party as to whether they had any other arguments.



The other big issue for today would have been the issue of cost because the Electoral Commission has technically won the case and normally when you win a case you get your costs but the Electoral Commission's errors have caused these petitions, so I would expect that the Electoral Commission or the Government or both will be having to pay the lion's share of the costs of all the parties.



ELEANOR HALL: Graeme Orr, electoral law expert there in Perth, thank you, and just recapping, the West Australians will head back to a new senate election in that state. The first in Australia's history with the Court of Disputed Returns just declaring that senate poll void.