WA voters "prevented from voting": AEC

The High Court will begin hearings into the flawed West Australian Senate election count. Source: AAP

VOTERS in WA whose ballot papers were lost before the senate recount were "prevented from voting" lawyers for the Australian Electoral Commission (AEC) have told a High Court judge.

The High Court - sitting in Melbourne as the Court of Disputed Returns - has started hearing submissions on whether the WA senate election was void and needs to be held again.

The AEC last November filed a petition calling for a fresh vote after 1370 ballots were lost before a recount that was requested due to the narrow margin in the results for the fifth and sixth senate positions.

Lawyers for the Australian Electoral Commission told the court voters whose ballot papers were lost could say they were prevented from voting because their votes were not considered in the recount.

"Their 'votes' were not the subject of any relevant scrutiny, the only relevant scrutiny being that undertaken on the re-count," the AEC said in its written submission.

Solicitor General Justin Gleeson, for the AEC, said that while one submission to the court was that a vote had been cast "as soon as the person has lodged a piece of paper", the scrutiny of the vote was a necessary part of the vote.

He also said that without the original ballots, the court could not use the results of the first count as evidence of the way in which voters intended to vote.

"What it is is no more or less than evidence of the opinion formed by the officers ... an opinion based on an interpretation of the ballots now missing," Mr Gleeson said.

He also said the "incredible narrowness" of the margin was a factor for the court to consider.

The margin swung from 14 votes in favour of Shooters and Fishers Party's Murray Bow to 12 more votes for Australian Christian Party's Jamie Van Burgel after the re-count.

Neither of these candidates stood to be elected but their flow of preferences dictated the candidates who ultimately were.

In the initial count the final two WA Senate places went to Zhenya Wang of the Palmer United Party (PUP) and Labor's Louise Pratt.

But in the recount - without the missing votes - Wayne Dropulich of the Australian Sports Party and Greens Senator Scott Ludlam were elected.

The Palmer United Party and the Labor party have launched separate actions seeking that the first vote be declared the official result.

A petition by Senator Ludlam was last week dismissed.

The hearing continues.

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