The AEC will conduct special counts in Sydney, Brisbane and Perth on Monday, 6 November 2017 (10am local time), to identify which candidates are entitled to be elected to the Senate from New South Wales, Queensland and Western Australia to the places left vacant by the disqualification of Fiona Nash (NSW), Larissa Waters (QLD), Malcolm Roberts (QLD), and Scott Ludlam (WA) in the High Court decision of 27 October 2017.
This follows the provision of directions today by His Honour Justice Gageler of the High Court specifying how the special counts of votes will be conducted.
The special counts will not require the manual handling of any Senate ballot papers as the AEC will use the voter preference data already taken from the ballot papers of votes cast at the 2016 Senate elections in NSW, QLD and WA, respectively, to complete the three special counts required.
The special count will involve voter preferences for the now disqualified candidates Fiona Nash (NSW), Larissa Waters (QLD), Malcolm Roberts (QLD) and Scott Ludlam (WA) being disregarded, with these voter preferences now to be counted to the next preferred candidates recorded on each ballot paper, with subsequent preferences to be treated as altered accordingly. Once this is completed, a distribution of preferences will then occur.
Under the Commonwealth Electoral Act 1918 candidates who contest federal elections cannot be present to observe the process. Candidates are, however, able to appoint a scrutineer to observe the process on their behalf. Media or other members of the public will not be permitted to observe the special count.
Once the special count is completed, the Australian Electoral Officers for NSW, QLD and WA will return the result to the High Court of Australia for its consideration. Accordingly, the AEC will be issuing no public announcement of the result of the special count while this matter is before the Court.
On 27 October 2017, the High Court of Australia sitting as the Court of Disputed Returns determined that the above named Senators were disqualified from nominating as candidates for the 2016 Senate elections in NSW, QLD and WA due to the operation of section 44(i) of the Constitution. The Court ordered that the vacancies created by the disqualifications should be filled by special counts of the formal Senate votes cast at the 2016 election, with directions necessary to give effect to the special counts to be made by a single Justice of the Court.