The AEC will conduct a special count in Sydney on Wednesday, 22 November 2017
(10:00am local time), to identify which candidate is entitled to be elected to the Senate from New South Wales (NSW) to the place left vacant by the disqualification of Fiona Nash and the subsequent ineligibility of candidate Hollie Hughes in the High Court decisions of 27 October and 15 November 2017.
His Honour Justice Gageler of the High Court has provided directions specifying how the special count 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 election in NSW to complete the special count required.
The special count will involve voter preferences for candidates Fiona Nash and Hollie Hughes 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 Officer for NSW, 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 Fiona Nash was disqualified from nominating as a candidate for the 2016 NSW Senate election due to the operation of section 44(i) of the Constitution. The Court ordered that the vacancy created by the disqualification should be filled by special count of the formal Senate votes cast at the 2016 election, with directions necessary to give effect to the special count to be made by a single Justice of the Court. Hollie Hughes was later ruled as ineligible to assume the Senate vacancy by the High Court of Australia sitting as the Court of Disputed Returns on 15 November 2017, due to the operation of section 44 (iv) of the Constitution.