01/08/2016 9:42 AM AEST | Updated 01/08/2016 11:19 AM AEST

Labor Clinches Herbert, But The Fight May Not Be Over

The LNP may challenge the result in court

ALP candidate Cathy O'Toole has been declared the winner of the seat of Herbert

The final outcome of the 2016 federal election could be decided in court, with Prime Minister Malcolm Turnbull left to govern with a majority of just one seat following Labor's 37 vote win in the Queensland seat of Herbert.

The Australian Electoral Commission declared the seat for Labor after a recount put Cathy O'Toole ahead of Liberal National MP Ewen Jones by 37 votes.

The declaration means that with 76 Coalition MPs, Turnbull has the slimmest of majorities in the lower house of parliament. The Coalition have hinted they may challenge the decision in court, after the PM left the option open last week:

I would be agreeing with it if we did take it to the Court of Disputed Returns

Outgoing MP Ewen Jones conceded on Monday but said he would agree if the party decided to challenge the result.

"The decision on whether we mount a court challenge to the Court of Disputed Returns is a decision of the party but I would be agreeing with it if we did take it to the Court of Disputed Returns," he told reporters on Monday.

"37 votes, a number of anomalies in the count that we believe that would mount a significant challenge and would mount a reasonable request to the court to sit there and say a new election should be held.

"[O'Toole] is the member for Herbert. She is the member for Herbert. As soon as the seat is declared. We'll be leaving here now, cleaning out the office and making it as easy as possible for her to transition into the role," Jones said.

The party has 40 days from the time the writs are returned to make its decision to bring the matter to the court of disputed returns. A recount is triggered if there are fewer than 100 votes between two candidates.

Coalition Senator Ian MacDonald has reportedly said the Court could investigate the issues of some Townsville-based soldiers being unable to vote because they were on a military exercise, as well as reports patients at the Townsville hospital were denied a vote late on election day.

The result leaves the Coalition with 76 seats in parliament, with Labor holding 69 and a cross bench of five.

Once a Speaker is chosen, Turnbull will theoretically have 75 MPs in the lower house and a governing majority of one, the slenderest governing majority since Julia Gillard's government in 2010.

He could however approach a crossbench MP to fill the spot.

But a slim majority could also leave the Coalition backbench harder to govern.

Earlier this month Queensland MP George Christensen threatened to cross the floor of parliament to vote against his government's proposed superannuation changes, following a proposed $500,000 cap on non-concessional contributions.