Could there be a second election in the nail-biter seat of Bradfield?

Australian elections often throw up ultra-tight contests. But this year’s battle for the seat of Bradfield on Sydney’s north shore has been a roller-coaster ride from the start.

More than four weeks after election day, only a few votes separated Liberal hopeful Gisele Kapterian and teal independent Nicolette Boele. A recount is ongoing, but even that may not end in a candidate emerging victorious. There is a growing consensus that Bradfield could be headed back to the polls for a byelection.

How did we get here?

On election night it appeared that Boele, who almost seized Bradfield in 2022, had won the seat on her second attempt, though she stopped short of claiming victory. Late that night, Boele led by almost 700 votes, and many news outlets, including the ABC, called the electorate for her.

Gisele Kapterian (left) and Nicolette Boele are battling it out for the seat of Bradfield.Credit:

As counting progressed, Boele’s lead evaporated. A week after polling day, it seemed Kapterian had built an insurmountable advantage; several media organisations called the seat for the Liberals on May 12. But then Kapterian’s buffer was whittled away and the lead changed again.

When the initial count concluded, Kapterian was up by just eight votes and the Australian Electoral Commission ordered a recount. (It is AEC policy to do this if the final margin in a seat is fewer than 100 votes.)

After more than a week of recounting, the result is still up in the air. At 2.30pm on Monday, live results published on the AEC’s website showed Boele ahead by 20 votes, though the commission says this online tally “is just a point in time figure and shouldn’t be taken as instructive about the final result”.

The full recount is expected to finish “late this week”.

AEC officials at work in the commission’s centre at Asquith during the Bradfield recount.Credit: Dominic Lorrimer

What happens if the recount ends in a tie?

Acting electoral commissioner Jeff Pope has said that in the event of a tie in Bradfield, the AEC would refer the result to the Court of Disputed Returns, which could order a byelection.

Whatever happens in the count, Kapterian or Boele or any voter enrolled in Bradfield could petition the Court of Disputed Returns to overturn the result.

Electoral analyst Ben Raue, who publishes the Tally Room website, believes a legal challenge to the result in Bradfield is “pretty likely at this point” given the tiny margin.

Raue believes a new election to decide Bradfield would be justified should the two-candidate-preferred gap between Kapterian and Boele remain as close as it was in the initial count.

“I think there is a point where you get to where an election is so close that you can’t actually be sure who has won,” he said.

Electoral analyst and editor of the Poll Bludger website William Bowe says trends in the recount so far suggest Boele will end up with a narrow lead once the recount is finished. He estimates the recount has cut a total of 82 votes from Kapterian’s tally, after preferences, compared with 62 taken from Boele’s total by late on Saturday. This has been due to recounted votes having been deemed to be informal.

But Bowe also expects the courts will be called on to adjudicate given the wafer-thin margin.

“I wouldn’t blame either candidate for challenging it,” he said. “Why wouldn’t you roll the dice again?”

Until recently, Bradfield had been considered a blue ribbon Liberal stronghold; Bowe says that makes a challenge from the party likely should Kapterian fall short.

“The Liberal Party will not want to lose that seat because they’ll be worried they’d never get it back again,” he said.

Bowe believes “there’s a very big chance that the margin will be so small that the court will say there has to be a fresh election”.

What is the Court of Disputed Returns?

The High Court sits as the Court of Disputed Returns, which has the power, under the Commonwealth Electoral Act 1918, to rule on the validity of federal elections.

According to constitutional law expert Professor Anne Twomey, the court “has very limited powers in relation to elections”. It can declare that candidates who were returned as elected were not elected. It can declare that other candidates were duly elected. The court can also declare an election to be absolutely void.

A petition is a formal legal document asking the court to investigate the election, conduct inquiries and potentially overturn the result. It must be lodged within 40 days of the writs being returned.

In the case of this election, the writs must be returned by July 9. This technically means that if a candidate is declared the winner by the AEC, they could take their seat in federal parliament while the court considers the petition, though it would be a bold and unlikely move. (That said, Kapterian has already voted in the Liberal Party leadership ballot, and Liberal leader Sussan Ley has given her a shadow ministry position.)

Twomey says the petition must be able to point to evidence of irregularities in the election, such as the electoral commissioner wrongly ruling votes formal or informal, or proof that people voted twice.

Bowe says it is common for a handful of voters to cast two ballots in each federal electorate.

Has the court ordered a byelection in other tight races?

The closest election victory in history was in the 1919 race for the Victorian seat of Ballarat (then spelt Ballaarat), in which Nationalist candidate Edwin Kerby finished just one vote ahead of Labor’s Charles McGrath. McGrath challenged the result over electoral irregularities in the Court of Disputed Returns, which ordered a byelection.

McGrath won the rematch with a swing of 6.1 per cent.

The court has also declared other election battles void, including Western Australia’s half-Senate election in 2013, when on the initial counts, the final two seats would have gone to the Palmer United Party and Labor but, on the recount, they went to the Australian Sports Party and the Greens.

In a major twist, it was discovered that about 1370 ballots had gone missing, so the recount could not be properly completed. The electoral commission chief petitioned the Court of Disputed Returns to declare the election void.

What would a byelection in Bradfield look like?

If the battle for Bradfield ends with the election being declared void, voters in the seat will need to go back to the ballot box for a byelection.

That byelection does not need to replicate the initial poll, which means it could be a two-horse race (Kapterian v Boele) if other candidates or parties do not want to run again. It is likely that Labor, which finished third in Bradfield with 22,777 votes, would not run again.