Fran’s our man

The Age reports that the Federal Court has ruled on Labor’s appeal against its 12-vote defeat in the Victorian seat of McEwen at last November’s federal election, confirming Liberal member Fran Bailey’s victory. The report says the court overturned a number of determinations made on individual ballot papers, with nine ballots originally admitted deemed informal and 142 that were excluded deemed formal, but the effect was in fact to increase Bailey’s margin from 12 votes to 27. The judgement can be read here.

UPDATE: Reports such as this one from Ben Doherty in The Age, monopolised by Labor sources, led to a perception the court would most likely initiate a by-election or reverse the result. However, it may be that the court proved even more liberal in its determinations than Labor had counted on: 76 previously informal votes were admitted for Bailey against 66 for Mitchell, typically on the grounds that numbers were “reasonably discernible”. Only nine votes originally admitted were ruled informal, costing Bailey two votes and Mitchell seven. Most of these involved particular numbers being used twice for separate candidates, although Mitchell curiously lost three votes which lacked official markings (presiding officers’ initials and a watermark). One much-publicised complaint by Labor involved a ballot on which the candidates’ names were crossed out and replaced with those of V8 Supercar drivers, which was admitted as a vote for Bailey. Nothing in the table of determinations included in the judgement gives any indication that this was overturned.

UPDATE 2: Fran Bailey reckons “we have reached a stage in Australia where we must insist on voter identification” at polling booths, saying “the very close result in McEwen has shown up this particular anomaly”. Can’t see how, myself.

Author: William Bowe

William Bowe is a Perth-based election analyst and occasional teacher of political science. His blog, The Poll Bludger, has existed in one form or another since 2004, and is one of the most heavily trafficked websites on Australian politics.

141 comments on “Fran’s our man”

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  1. I’ve replrinted this from the previous post:

    I actually think Labor is quite relieved Bailey hung on to McEwen. After the Gippsland shenanigans the last thing want right now is another by-election and another potential rebuff…

    Labor not contesting McEwen would not have been an option? Can you imagine it? Labor challenges the McEwen vote to the Court of Disputed Returns to seek a re-election, only to not contest the election. Ha!

  2. The Gippsland result was not quite as bad as reported. The TPP margin is now down to -6.16% not the frequently reported 7 or 9% . There was also about 8% of people who did not vote at the by election who voted at the general election.

    At 62 it is unlikely that Fran has many more elections left. McEwan is ripe for the picking at the next election – and tax payers have been spared the expense of an irrelevant by election.

  3. The AEC lawyers will be going through that judgement with a fine tooth comb and re-writing their scrutineers handbook. That is one of the good things about these sort of cases, they often clarify the law.

  4. I’m wondering about Bailey’s statements calling for tougher voter ID regulations – she may have a point, but I can see that sort of thing turning into a U.S style opportunity to disenfranchise voters influencing results.

  5. 6 Progressive – no, Rob has been unemployed whilst waiting for the result.
    The only good thing about this from his point of view is that he can now get on with his life.

  6. Optimist

    I don’t think there is too much wrong with the ID regulations, this seems to be a clear case of ambiguity as to when votes are formal or informal.

    We now have a bit more clarity – a good thing for all, no matter what side of the political fence you reside.

  7. I thought that it was very helpful of the judge to give a reason for each reserved ballot being accepted or rejected and his table at the end is the first time I have ever seen any guide as to how well scrutineers perform. For example it tells us whether the scrutineers from each camp picked up on an anomaly.

  8. Interesting result – the Court has now accepted that it may itself act as the AEC and perform a recount (but only of reserved ballot papers), determining the validity of each reserved ballot paper, even though the Court also found that under the definition of the Act an “unlawful practice” had a occurred (a potential reason for declaring the election null and void). However, as noted above, it actually increases the enfranchisement as it ensures greater inclusion of ballots cast.

    What troubles me in some way is that we are back to the whole “hanging chad” scenario with a court intervention into counting. While the AEC may yet look again at how it counts votes (and at the regulations that cover that) to cover some of the points raised, it does mean that future courts may be called upon to do the same as has occured here, ruling on admissability of individual votes.

    Electoral law aside, though, I agree that this would in fact be a by-election the ALP would potentially rather not contest at present.

  9. Oh Dear, ESJ and stewart J seem to have a severe case of disappointment at a tory victory. They obviously want some other form of tory win. Please suffer in silence.

  10. ESJ

    I note you have only recently returned to give us the benefit of your esteemed wisdom and wit.

    How the gig at The Australian going? 😛

  11. He’s been reading the Australian too much by the look of his last comment. Dare we say Gippsland has created hubris in The Australian camp.

  12. hah! I have to admit, I was expecting a bit of 2000 “Bush stole it!” type rubbish from you leftards. Instead, the sense of relief is palpable. Guess you guys are getting a trifle twitchy. Seven months must be some sort of record.

  13. A-C

    Rudd will be returned at the next election with a larger majority than he presently holds.

    So says – (insert RWW of choice) 😛

  14. I suspect neither Kevin Rudd nor Brendan Nelson would want a by-election now in a genuinely marginal seat, so everyone except Rob Mitchell will be happy. As someone else has pointed out, it’s doubtful whether Bailey will want to go another round at the next election, particularly if it looks like Labor will win it.

    McEwen is a classic outer suburban/rural seat that has a bit of everything, where grocery prices, interest rates and petrol prices would have been big issues – bigger than in Gippsland. Plenty of “working families” and commuters. A by-election would have been fascinating.

  15. Oh well, renewal by byelection does have its drawback and this is one of them. Maybe they will have to look for another backbencher well past their use by date, tap them on the shoulder and mention retirement. If it in done in a serious voice and the explanation being ‘well we did win McEwen’, I’m sure people like Costello, Truss or Bruce Scott would understand.

  16. ruawake,

    Although I’d relish the opportunity to disagree with you, seeing that the Liberal Party holds the distinction of being the least successful centre-right party in the western world it’s pretty difficult.

    That being said, the ALP government has been very underwhelming and if the opposition is remotely competent for the next 18 months it’s difficult to envisage Labor upping their vote from last year.

  17. A lot of people were effectively locked out of voting in the election when the Lying Rodent changed the Electoral Act making it more difficult for the young, new voters, transients, renters etc to enrol.

    As these demographics are not traditionally considered conservative voters, I wonder how many of such electors missed out in McEwen.

    And would their numbers have made the difference needed for Labor to win?

  18. “and if the opposition is remotely competent for the next 18 months”

    That’s the bit of your theory that is in question AC. A big ‘if’ that with the exception of the Gippsland result nobody could have any faith in.

  19. There was never going to be a by-election.
    The court was ruling on each ballot as to whether it was formal or not and the count being adjusted accordingly. A result either way depending how they fell.
    Grounds for a fresh election (illegalities/coercion/whatever) were never presented – only a finite number of votes for the judge to rule on – which he did.
    But I guess it makes some here glow a little to imagine Labor losing again LOL!

  20. 26 Bryce, that is certainly the impression I got as soon as I read the judgment from the Federal Court on April 22. I just don’t like the idea of commenting on court cases while matters are before the courts but the judgment was pinned on Poll Bludger a couple of times for all to see.

  21. There is so much rubbish going on here, on what is mostly a sensible site, it’s hard to believe. Please go to Larvatus Prodeo and read the five very comprehensive reports thus far on climate change by Brian. Then come back and debate how the hell we’re going to deal with it. The old politics of Liberal vs. Labor is over.

  22. HSO

    I beg to differ Liberal vs. Labor is the main game. If you think politics is a one dimensional you are the rubbish regurgitator. 🙂

  23. Stewart J, Courts of Disputed Returns have often done what this court has done, they just don’t get chance to do it very often. Last time I remember it happening was in Queensland in 1990, when after reviewing a series of disputed ballot papers for formality, the Court reversed the election result for Nicklin, the elected Liberal losing his seat and being replaced by a National after judicial re-count. I can think of half a dozen cases in NSW electoral history of the same thing.

    The court has clarified the meaning of the act in this case and the AEC will have to take it into account. The AEC may interpet the law on formality, but the Court is the arbiter of what is actually legal. As an example, the NSW Coogee Court of Disputed Returns case in 1974 completely re-interpeted NSW electoral law on what was a formal ballot. Parliaments can then legislate to overturn judgements by clarifying the meaning of the law, as NSW did 2 years ago to finally overturn the Coogee judgement (some things never happen quickly). The Courts, not the AEC, are the arbiter of the law’s meaning. The AEC may do all it likes about looking at the laws, it’s now up to legislators to act if the Court has done something that was not the intent of the Parliament.

    I really don’t think you should compare it to the US hanging chads fiasco which eventually ended up as a constitutional case. This case is entirely one of whether the administration of formality rules under the electoral act is in accordance with the written law. I can assure you, the AEC will be happy to have the judgement as it clarifies the law. The Labor and Liberal Party were putting up competing interpetations of the formality rules and the Court has now ruled on every case, which leaves the AEC with better clarification next time there is a close count.

  24. Ruawake, It is my point, in a sense. The LNP’s playing of populist politics is just playing with death of many species, maybe our own. The planet will survive, probably, but we may not. If Labor can garner the support of the population to do something in our neck of the woods, and provide leadership, this would be a good thing in my view. However, the reality that confronts us is beyond ordinary analysis. Do please read Brian’s work.

  25. After examining the 640 disputed ballot papers Justice Tracey reversed the result of 151, comprising of:

    Bailey votes becoming Informal – 2
    Mitchell votes becoming informal – 7
    Informal votes becoming Bailey – 76
    Informal votes becoming Mitchell – 66

    In otherwords the decisions of the Australian Electoral Officer for Victoria were reversed by Justice Tracey on 23.5% of all disputed ballot papers.

    I reckon that is a real worry. I hope someone looks very closely at this and can determine whether the problem was the law or human error.

  26. Ruawake @29/30
    That’s the core of the matter.
    Politics has almost always been a case of us v.them, with the rare suspension of hostilities during national crises; vis. major armed hostilities.
    In my opinion we are now fast entering such a crisis; climate change, which is potentially more damaging than any war to date.
    It’s time to cease this puerile traditional nit-picking and to get on with getting to grips with what is an impending global disaster
    Next year may well be too late.

  27. I think the term “Illegal practice” might be legislated out of the Act after this judgement. The judge had plenty to vent his spleen about with this one.

    9 The term “illegal practice” has appeared in the Act since its inception: see Commonwealth Electoral Act 1902 (Cth), ss 173(ii), 180 and 181. As originally used it referred to criminal conduct such as bribery and publication of electoral material without a statement that the material had been authorised by a named person. The continued use of the term is unfortunate. It is apt to suggest conduct which involves moral turpitude and conduct which is criminal in nature: cf Shaw v Wolf (1998) 83 FCR 113 at 133. “Illegal practices” is, however, now defined, in s 352(1) of the Act, to mean a contravention of the Act or the regulations made under it. A failure to comply with a statutory requirement will constitute a contravention of the relevant provision: see s 22(1)(j) of the Acts Interpretation Act 1901 (Cth). Inadvertent errors, made by those charged with the administration of the Act, can, therefore, amount to “illegal practices”. Bona fide but mistaken decisions by Returning Officers to admit or reject ballot-papers may, for example, amount to “illegal practices”.

  28. I keep hearing and reading that Rudd (not Mr. Rudd or the PM) is all talk and no action or that he is all symbolism and tokenism. But what is it that he or his government should have done in the seven months or so that they have been in power?
    Could the coalition supporters who contribute to this site enlighten me (and the rest of us) as to what he should have done by now?

  29. Another interesting point the judge made in this case is the role of the court is ‘the correction of unreasonableness’ rather than whether the votes are formal or not. Paragraph 23

    • the AEO has the assistance of scrutineers when making his or her decisions. The Court does not receive such assistance and this is suggestive of a role restricted to the correction of unreasonableness rather than de novo consideration of the formality of reserved ballot-papers.

    • correction by the Court of unreasonableness is more likely to be conducive to the expedition mandated by s 363A of the Act than a process of merits review.

  30. Enjaybee, as others have said, if Rudd walked over Sydney Harbour, he would have been accused of being unable to swim. Again, I would request that any one wanting to discuss what needs to be negotiated politically had better understand what is actually happening in terms of climate change. For a very well researched and well put together series , it’s hard to find better. (Brian at Larvatus Prodeo – can’t do the link thingy)
    We don’t need a meteorite to wipe us out. We’re perfectly capable of doing it ourselves. So, if Nelson, only there by virtue of the climate change denialist, Minchin, keeps up the populist garbage of 5c. drops in petrol prices, it’s going to make it very difficult for the gov’t to get anything through the Senate.
    I meant my earlier post about this issue to point to a need for all of us to educate ourselves about it, and for it, necessarily to be beyond the ordinary Labor/Liberal stuff that goes on.
    In the words of Tom Lehrer, “We will all go together when we go”. The cockroaches might evolve into something interesting?

  31. Ed, 635 out of 100,000 votes were in dispute. The Court has allowed certain votes in this case by clarifying the words of the act. Much of the case has been about the section that says “A ballot-paper shall not be informal for any reason other than the reasons specified in this section, but shall be given effect to according to the voter’s intention so far as that intention is clear.” The AEC appears to have been using a test of ‘no doubt’ which the justice refers to from previous cases. But in this judgment, say on ballot paper 96, this justice makes rulings like “The figure in the fourth square reasonably resembles a 4.” The difference between ‘no doubt’ and ‘reasonably’ is how these cases turn sometimes. This case appears to give future Returning Officers a little more wriggle room.

    I must read this case in detail before my appearance before the Joint Standing Committee on Electoral matters. I argue they need to looses the formality rules so we don’t get tied in knots about formality. Many of these votes had a clear first preference for either Bailey or Mitchell, and were being knocked out because of errors in preferences that could never count. It is stupid to have rules that disallow a vote because of an error in a preference that is not actually required to be counted.
    s about whether the intent was clear. There is a lot of comment in the judgement about Electoral Commissioner has been going on interpetation of what

  32. So what happened to the ballots with the racing car drivers names? ruled in or out?

    Antony – from what you are saying it would appear that a first preference will count even if the second onwards are unclear. That makes sense. Would this apply to a senate ticket where a BTL vote can be discarded after the first 40 or more numbers are in sequence but then there is a mistake (according to the Electoral Officer at my booth at the last election)?

  33. E.S.J. Have you read the articles I suggested? If not, you will have no credibility with me. This nit picking rubbish is exactly what I was pointing at. Do you think being of charge of the “Titanic” i.e., planet earth, is something that the market will deal with? If so, provide evidence.

  34. The electoral is consistent with these five principles:

    49 The petitioner and the first respondent sought, respectively, to distil a set of “principles” and “rules” which should guide or inform the determination of whether particular ballot-papers were formal or informal within the meaning of the Act. The petitioner identified seven “principles”. In descending order of precedence they were:

    • The ballot, being a means of protecting the franchise, must not be made an instrument to defeat it. (Principle 1)

    • Doubts as to form should be resolved in favour of the substantial right to vote. (Principle 2)

    • Each ballot-paper should be given effect according to the voter’s intention, so far as that intention is clear. (Principle 3)

    • When a vote is recorded in writing, the writing itself is the only proper evidence of the way in which the elector intended to vote. (Principle 4)

    • As with the interpretation of any other document, the ballot-paper should be construed as a whole. (Principle 5)

  35. Jen – no, there has to be a correct sequence of preferences, that is in another provision. But rather than adopt a ‘no doubt’ in relation to interpeting a sequence of preferences, the Judge refers to ballot papers that ‘reasonably resemble numbers’. In reasonably resembling numbers, the Judge is saying there is no doubt the intent is clear.

  36. Jen #41

    Good question Jen. The ballot with the racing car drivers names had to be ruled out. Conversly the ballot where the 8 was deemed to be two zeros had to be ruled in. The intention of the voter was clear. Surely.

    That is why I raised the issue of human error. Those rulings by the Australian Electoral Officer appeared to be ludicrous, even though I acknowledge Antony’s point about the difference between ‘no doubt’ and ‘reasonably’.

    Common sense didn’t appear to be that common.

  37. This is truly surreal. Discussion of correct sequencing of preferencing? The legal interpretation from Steve?
    Do any of you understand what the effects are of climate change of the order that is already evident?

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