Election and machinery-of-government changes

AGS provided a range of services related to the 2013 federal election and subsequent machinery-of-government (MOG) changes, including legal advice, seminars and client briefings. We also represented the Australian Electoral Commission in its petition to the High Court (sitting as the Court of Disputed Returns) in relation to the Western Australian Senate election.

Election period

In the lead-up to the election, we broadcast a podcast on caretaker conventions and published an Express law (electronic information bulletin) entitled Election 2013: caretaker conventions to help our clients prepare for the election. We also advised the Australian Electoral Commission on a range of issues arising under the Commonwealth Electoral Act 1918, including enrolment, voting and appointment of electoral officers, as well as proposed amendments.


The change of government led to significant administrative rearrangements within the Commonwealth bureaucracy. AGS provided advice and other legal assistance to government officials and ministers on the constitutional and statutory framework governing their operations, including running a MOG seminar for new Members of Parliament.

To assist our clients, we also provided seminars, publications and other legal awareness services. In particular, we provided a Government Law Group seminar and Legal briefing, titled After the election – what happens?, gave a presentation to a range of clients on implementing MOG changes, and published an Express law titled Revised records management rules for incoming government briefs.

We advised on employment and general MOG issues arising from the transition to a new set of ministers and the creation and abolition of agencies. Issues included the power of a new minister to make decisions under particular legislation and the impact of the changes under the new Administrative Arrangements Order on government programs, departmental outcomes statements, contractual arrangements and other legal obligations of the Commonwealth.

The Western Australian Senate election

AGS provided advice on significant issues arising from the WA Senate election, and acted for the Australian Electoral Commission in its petition to the High Court (sitting as the Court of Disputed Returns) to declare that election void after 1,370 ballot papers went missing.

The case was historic and ground-breaking. The election of the fifth and sixth senators for WA was very close and a recount was directed, but it was discovered that 1,370 ballot papers were missing. Following the recount, 2 different senators were elected. As a consequence of the possible impact of the missing ballots, the Commission filed a petition with the Court of Disputed Returns. This was the first time that the Commission had filed a petition. The case raised many complex and previously untested areas of electoral law, including whether the result was likely to be affected by the loss of the ballot papers. Could the Court now decide who should have been elected? Could the Court look at records of earlier counts of the lost ballot papers? And need the Court now examine ballot papers the formality of which is disputed? Or must it instead declare the election absolutely void?

The petition was vigorously contested by 8 candidates. In addition, further petitions were lodged by each of the Labor, Greens and Palmer United parties.

Speedy resolution of the case was imperative in order to give voters and candidates certainty, and to allow enough time for the Commission to run a fresh election and declare a result before the start of the new Senate term.

With the Solicitor-General and other counsel briefed, AGS played a critical role in the timely and successful resolution of the case. Our team had significant input to the framing of both the petition and the submissions supporting it. The Court ultimately agreed with the position put in our submissions, which were substantially reflected in the judgment, declaring the election void.

We also ran complex and difficult negotiations to broker timely agreement with all other parties on the terms of the questions of law and a statement of agreed and assumed facts and other court documents, enabling the Court to resolve the case without the cost and delay of a fact-finding hearing.

AGS also provided further assistance and advice to the Australian Electoral Commission and other agencies relating to the subsequent half-Senate election in WA.

This is an extract from the 2013–14 AGS annual report