Western Australia is a step closer to another election, after the Australian Electoral Commission announced it has asked the High Court to declare the outcome of the state's Senate vote void.
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In an extraordinary move that challenges its own result, the AEC has petitioned the High Court, sitting as the Court of Disputed returns.
In documents lodged on Friday, the Commission argued it is not possible to ‘‘conclude with certainty, or on the balance of probabilities’’ who has been elected out of the WA vote.
This comes after 1370 votes went missing during a recount of the WA Senate vote last month.
There have been two counts of the vote after the Greens and Australian Sports Party appealed the close first result.
The first count, saw Palmer United Party candidate Zhenya "Dio" Wang and Labor's Louise Pratt elected in the fifth and sixth spots. But after the second count - declared on November 4 - the Sports Party's Wayne Dropulich and the Greens' Scott Ludlam edged out Mr Wang and Senator Pratt.
"Given the closeness of the margins that favoured the final two declared candidates, the petition is based on the premise that the inability to include 1370 missing ballot papers in the recount of the WA Senate election means that the election was likely to be affected," a statement from the AEC said on Friday.
In the first count, there was a mere 14 vote difference between the Shooters and Fishers and Australian Christians at a crucial point in the flow of preferences. In the second, which did not include data from the missing votes, the order was reversed, with the Australian Christians ahead of the Shooters and Fishers by 12.
A ‘‘notional’’ recount conducted by the AEC, combining what is known about the missing votes with the second count, put the Shooters and Fishers back in front by one - unofficially reversing the final result in favour of Senator Pratt and Mr Wang.
In its petition, the AEC said that if the 1370 votes were available for a recount, there was s a ‘‘real chance’’ that the result of the election would have been different. It asks the court to declare the September 7 Senate vote ‘‘absolutely void’’.
University of New South Wales constitutional law expert George Williams described the AEC’s step as extraordinary, adding he was not aware of a past example where the Commission had challenged its own result.
Professor Williams said it would be hard for the court, sitting as the Court of Disputed Returns to resist the AEC’s call.
‘‘The evidence that’s been marshalled by the Electoral Commission here does seem very strong,’’ he said, after examining the petition. He said it could be expected the court would consider the case on an ‘‘expedited basis’’. The new Senate is due to take its place on July 1, 2014.
Special Minister of State Michael Ronaldson said he could not comment on the specifics of the petition or any likely outcomes because the matter was now before the court.
‘‘However, the government has previously made its deep concerns about this significant process failure, which has led to this petition, quite clear to the AEC,’’ he said.
Former AFP commissioner Mick Keelty is currently conducting an independent inquiry into the missing votes.
