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’m with Steve Stewart J. Any process carried out as an adminstrative task can be reviewed in the courts to see whether the decision made by the official conformed with the law. That is what the Court of Disputed Returns has done here, examined whether the administrative decisions made by the Returning Officer conformed with the law. The Returning Officer makes a decision on his interpretation of the law, but he isn’t determining the law, merely administering it. The alternative is the Returning Officer being a law unto themselves, deciding to ignore precident and doing what they like. I would rather the courts do this task than what used to apply.

    The electoral law we inherited from Britain did not have Courts of Disputed Returns. Instead an Elections Committee of the Parliament was used to review elections. I don’t know about other states, but this Committee existed in NSW from 1856 until 1927 when the Court of Disputed Returns was created. Once party politics became entrenched, it was viewed as no longer appropriate for MPs to sit in judgement in these case. I’ve been through the minutes and decisions of these committees, and in nearly all cases, they were dealing with cases that fell through the cracks in law. It was not always cut and dried which principle or clause applied. The Courts have continued to perform this task. Can you imagine how the McEwen judgment would have gone had it been left to the Parliament?

    This is why your comparison with the US ‘hanging chads’ stuff is just not right. Remember that in Florida, all of the County officials administrating the election were elected officials. So were many of the Judges. They were people elected as Democrats and Republicans and then sitting in judgment of the process. Apart from having a very fractured electoral administration, they had the basic fault that the whole process of administering the election was party political. That’s why the Florida election was such a scandal, and why you are wrong to keep mentioning the McEwen Court of Disputed Returns case in the same context.

  2. Steve
    Yes, I’ve seen the Democratic Audit material before and I would broadly agree with the changes they recommend. But in a philosophical sense I still would prefer a more open debate about information transfer, informed debate, voter eligibility (including the potential for lowering the age eligibility) and so on. My interest,and I keep coming back to this, is that the McEwen judgement is a narrow judgement (necessarily limited by the petition it had received) and does not necessarily deal with the underlying democratic principles that may or may not have been met.

    I don’t dispute the use of electoral law and the court to improve the administration of the election, and that the court is useful in further defining that law, but my issue is with the use of courts to (apparently) define principles. Yes, US officials (and it is argued the Courts as well) are overtly partisan, but then so are MP’s, and they’re the ones making the laws the courts are interpreting. If we are going to accept that, then we equally need to accept that partisanship is not going to necessarily agree with, or be able to define, principle effectively. So why then are MP’s making the decision on electoral laws? Because of a democratic principle we have accepted (at least partially) regarding how we wish to be governed (the people will choose those who will govern them all). I began with the whole “is the chad cut, hanging embossed or what?” line of technical reasoning because I contend it is not dissimilar to the technical determination made when considering should a ballot with a correctly numbered set of boxes be admitted, even if the elector has replaced the names with V8 Supercar drivers.

    So, I’m not equating the two systems, but simply using the two technical determinations to illustrate my concern. I was not suggesting that the McEwen judgement is a scandal (unlike Florida) or that the process is scandalous, but that my concern relates to courts determining principles – even though that may be the best process we have at present. I may not have an answer but may I not at least question this?

  3. 105 “Yes, US officials (and it is argued the Courts as well) are overtly partisan, but then so are MP’s, and they’re the ones making the laws the courts are interpreting. If we are going to accept that, then we equally need to accept that partisanship is not going to necessarily agree with, or be able to define, principle effectively.”

    Correct me if I haven’t quite got what you are saying straight, Stewart J, but I get the idea you are starting to argue that we elect the politicians and they should govern, so where do the courts come into the process?

    It is derived from a very small and skinny document called the constitution. There are three arms of Government in this country all as legitimate and important as the other. The Executive, the Legislature and the Judiciary all have clearly defined roles and I think you might be trying to tell us this isn’t so.

  4. Stewart, you have to understand that the law is not complete and it always has to be interpreted by courts. That’s why we don’t have minimum sentencing laws, we leave the Judge to determine on the facts of the case what the penalty should be up to a maximum. It’s exactly why sentencing law is so controversial depending on your view of how the courts should work.

    For me the best electoral example is the prosecution of Pauline Hanson for fraud. This all began with a civil case as to whether One Nation was correctly registered. The whole case then turned on what was the legal definition of being a member of a political party. The problem was, the electoral act had no definition of what a party member was. The Queensland Electoral Commissioner registered the party and viewed on his judgment that the party had members.

    When the civil case de-registered the party, every electoral commissioner in the country was stunned because the commissioners had operated on a very general view of party membership. What the civil case revealed was that when pushed, the law was wide open to interpetation. There was no doubt that something called One Nation had members, but when you picked apart the legalities of its constitution and compared it with common law and statute law on unincorporated associations, they weren’t actually members of what had been registered as a political party. (Hanson’s criminal case then turned on further definition of membership, and the Appeal case further modified the view and issues to do with reasonable doubt.)

    Some states still haven’t tightened the law on what it means to be a member of a party. The Commonwealth Act still does not have a definition. So as legislators have not acted to define membership, case law determined by courts has filled the void. I think that is wrong as it is difficult to get on top of case judgements, but if legislators don’t act to clarify the law, the courts will.

    So back to your case, the electoral act states nothing about what to do with a ballot paper with numbers filled in correctly but all the names replaced by others. So someone has to decide. The Returning Officer made a decision in their view, but did it conform to law? The court decided.

    Now our courts aren’t deciding principles of themselves. They are defining principles within the laws as written. The Electoral Act is blurred about specific ballot papers. If you don’t want the court to decide, you include something that covers every type of ballot paper, but who can foretell every possible ballot paper?

    All the Court of Disputed Returns has done is try to resolve the blurred bits of the Electoral Act. Anything the McEwen case decided can be nullified simply by changing the law. This isn’t a constitutional case. But if the Electoral Act is not specific, someone has to choose between different options. Adminstratively this is decided by a Returning Officer, but any decision can be reviewed for its legality.

    This is very different from the High Court over-turning the ban on all prisoners voting. That is what you are complaining about, where the High Court created a principle within which the Electoral Act must fit. But the Court of Disputed Returns is the reverse, trying to resolve principles within the confines of the Electoral Act. Everything in the McEwen Court of Disputed Returns decision can be changed by altering the law. But if Legislators choose not to clarify what they mean by changing the Act, then the McEwen case has now done the clarification.

  5. And one more thing, how can you say in one paragraph that “the McEwen judgement is a narrow judgement (necessarily limited by the petition it had received) and does not necessarily deal with the underlying democratic principles”, and then in the next paragraph say “I don’t dispute the use of electoral law and the court to improve the administration of the election, and that the court is useful in further defining that law, but my issue is with the use of courts to (apparently) define principles”.

  6. the electoral act states nothing about what to do with a ballot paper with numbers filled in correctly but all the names replaced by others. So someone has to decide. The Returning Officer made a decision in their view, but did it conform to law? The court decided.

    Yeah, but what did they decide (in this particular ballot paper)? :-/

  7. “but my issue is with the use of courts to (apparently) define principles”

    Stewart J this article may contain the answer to your query.

    “The same considerations apply to judicial review of executive action. The Constitution, the legislation governing judicial review, and the relevant principles of the common law, define the limits of the authority of courts to override administrative decisions. The legislation changes from time to time, and the common law principles develop. But the Australian statutes on the subject, and the principles of common law, distinguish between review of the merits of administrative decisions, which is usually undertaken by specialist tribunals, and judicial review based upon principles of legality. The difference is not always clear-cut; but neither is the difference between night and day. Twilight does not invalidate the distinction between night and day; and Wednesbury[9] unreasonableness does not invalidate the difference between full merits review and judicial review of administrative action. ”

  8. It would be great if there was a court ruling that interpreted the senate rules similarly to this. I was really disturbed during the Victorian Senate count at the way different Returning Officers were making quite contradictory interpretations of formality. In some cases they were actually contradicting the scrutineers handbook issued by the AEC, but more often the topics related to things not covered in the handbook.

  9. When the senate voting procedure was bought in that at least some of the pollies had the idea that the voters should only have to vote for as many candidates as there were ‘senate vacancies to be filled’ on the ballot paper but the amendment was lost.

    Mr. ARCHIE CAMERON (Barker) [11.45]. – I move –

    That, after clause 2, the following new clause be inserted:-

    “2A. Section one hundred and twenty-three of the Commonwealth Electoral Act 1918-1946 is amended by omitting from paragraph (a) of sub-section (1.) the words ‘all the remaining candidates’ and inserting in their stead the words ‘as many candidates as there are Senate vacancies to be filled’.”.

    No attempt is made in the bill to amend section 23 of the Commonwealth Electoral Act , which provides that every candidate must be voted for if a formal vote is to be made. With the system of proportional representation, under which, in the majority of the States, there will be candidates from three political parties and a number of independents as well, it seems utterly futile to propose seriously that an elector should be obliged to vote for every candidate on the list in order to record a formal vote. It is hard for electors to express their preference beyond three or four candidates and to compel a man to vote for 30 or 40 candidates – for the Lord knows how many aspirants for office there will be – is to go too far. My proposal would limit the number of candidates that would have to be voted for to the seven candidates to be elected. I am sure that if the Government consults the Electoral Office or any authority on proportional representation, it will be quickly convinced that that is a sufficient number of votes to ensure a proper poll. It will lessen the number of informal votes.

  10. For the record there was one case referred to the courts about the senate vote from the 2007 election by the No 1 Senate candidate for the Fishing Party in Queensland. It had no chance of success because it wasn’t lodged within 40 days of the poll and the candidate who takes the case to court has to prove that an wrongdoing would have to have altered the result of the election.

  11. Steve @ 106
    Ah, the separation of powers. But we conflate two of them – the executive and legislature – in the government. Yes, the Constitution define the various groups (the Federal Executive Council, Parliament and High Court), but we have by convention altered the relationship, such that the FEC is effectively controlled by the Parliament in the form of the Prime Minister and governing party. The Consitution, unfortunately, may be the highest legal document in the country but it defines principles rather poorly.

    We appear to arguing at cross purposes. I don’t dispute the use of the Court of Disputed Returns to resolve issues of legality in ballots, but my concern is a general concern that we may end up using courts to determine principle (thus how I can appear to be contradictory – I should have split the sentence to make it clear that I was talking about McEwen on one hand and a generalised conception of courts as a separate issue). I contend that “law” is elevated in that instance above democratic principles (government by the people) to the point of determine a moral or ethical position – something it was not created to do. In this instance I have narrowed my discussion to the determining of the intent of a voter who has crossed off names but numbered correctly. While the determination of fomrality is a legal position, is it also one of principle (ie; the determination of intent)?

    I have an ongoing concern with courts, not that they don’t exist for good purposes, but that the administration of justice should not be equated with the law. Your description of the Hanson case is a good one – the court did fill a void – and you are quite correct that the there is an issue when the legislators should fail to correct errors or definitions. They are our representatives and should do so I would have thought.

    Now, I realise we use the law as a mechanism of mediation between people, and that the intention of the courts is to be able to operate in an impartial manner. But this still does not address justice (something I am aware that justices and magistrates are aware of as they keep commenting on it). My simple contention is that I have a concern that we are beginning to turn to the law to determine electoral justice when it is not necessarily able to do so.

  12. 115 [I contend that “law” is elevated in that instance above democratic principles (government by the people) to the point of determine a moral or ethical position – something it was not created to do.]

    Which is exactly what I though you would be arguing but it not the case even though a very popular misconception for people to adopt.

  13. Stewart J a good test of how much credence your theory has would be for you to stand as a candidate, run a close second and take the case to court. Let me know how your case went when it’s over.

  14. This court decision proves Labor used dirty tactics to win marginal seats at the last federal election. Rudd should be sacked, Howard re-installed as PM and fresh elections be called immediately.

  15. Completely off topic, but how about this for an article that mis-uses statistics.,21985,23974169-2862,00.html
    Claims that electricity prices are different from Melbourne suburb to suburb, based on the average annual cost for a family. Unless the kilo-watt hour cost is different from suburb to suburb, this article is nonsense, but the article does not once mention the kilowatt hour charge. If the price per kwh is the same, this story is complete nonsense, but the only relevant number to compare suburbs is not mentioned in the article.

  16. [Claims that electricity prices are different from Melbourne suburb to suburb, based on the average annual cost for a family.]

    So some people are paying more because they are buying more? Wow, hold the press…

  17. Melbourne’s electricity market is competitive, so the retail companies, which were originally given particular areas of the state, can charge different prices, though I don’t know how they tell their own electrons which addresses to leave the distribution line at.

    I might add that different families have different numbers of members, and some even have teenagers, so the bill will vary with family size, and family size in, say, Docklands, is not the same as family size in, say, Hampton Park.

    But, given the proliferation of self-selected samples in surveys uncritically reported in the press, getting statistical logic into the MSM is a lost cause.

  18. Stewart J, I have some good news. There is no need to test your theory in court yourself. The approach you advocate has been tested by a would be candidate in the seat of Rankin and the result is that the would be candidate and a close supporter are now in jail for contempt of Court. Sometimes the real world clashes with bright ideas about the role of the court in hearing electoral matters:

    “A one-time would-be politician and one of her supporters were both in custody last night after a court hearing descended into farce.

    Lesley Alexandra Noah, 45, applied to run for the seat of Rankin at the last federal election, but the Australian Electoral Commission rejected her candidacy when she did not receive sufficient nominations.

    She lost a legal challenge against the AEC officer who rejected her application in November 2007 and was ordered to pay the officer’s legal costs, which were covered by the Federal Government.

    During yesterday’s hearing lawyers for the AEC sought an enforcement order to recover the legal expenses.

    But Noah instead copped a contempt of court charge and was taken into custody after mouthing off at Magistrate Michael Burnett.”

  19. Steve
    (Apologies for not replying earlier but have been away from my desk for 5 days) Good news? Sorry? An approach I advocate? Actually, exactly what I AM concerned about – rushing off to the court’s in the expectation that you would receive justice by doing so – the court has interpreted the legislation and applied a ruling, as you would expect. Mouthing off at the magistrate is never a good course of action – and not unlike mouthing off at a police officer. So, not an approach I advocate. If you are referring to my comment “I may not have an answer but may I not at least question this?” I am obviously refering to a forum where it is possible and reasonable to do so – mouthing off at magistrates in courts is neither such a manner nor forum…

    Oh, and I have put myself up for election, although never got terribly close at all, did not take it to court (no grounds to do so) but if I had done so would have a) accepted the result, b) would not have expected justice to necessarily be served, and c) questioned the process and result if I thought it warranted it, but in a manner more measured than is suggested in your example. However, if memory serves me Albert Langer was jailed for contempt as he believed that the ruling against him, although interpreting the legislation, was unjust and acted accordingly.

  20. William You may have missed this one… It may have also been addressed in commnets above not sure…

    Extract from judgment.

    (i) The AEO accepted 1 ballot-paper where the voter had crossed out the names of all candidates in the election and substituted different names on the basis that all the squares contained the figures 1, 2, 3, 4, 5, 6, 7 and 8. This decision was made even though it was clear that the voter had not intended to indicate, and had not indicated, a preference for any candidates in the election. In this case the ballot-paper was informal and should not have been accepted.”

  21. You might also wish to take another look at yhe senate rules on the calulation of the Surplus Transfer value and the segmentation of the distribution of exclkuded candidates. The way in which the current legislation works delivered a potential 6,000 added bonus votes to the Greens in Victoria. Had One Nation in Victoria preferenced the Liberal party ahead of Labor before the Greens the Greens would have been elected unfairly on the strength of the added bonus votes delievered by the system itself.

    more information click here

  22. There was a poll released by the Queensland Local Government Minister at an Estimates Committee yesterday into the voting at Queensland Local Government elections this year. The Minister also said that the Electoral Commission would be written into the New Local Government Act later this year as the body to run the elections in future. Hansard page 56.

    The 2008 local government elections were conducted for the first time, as I have
    indicated, on a statewide basis by the Electoral Commission of Queensland for those elections that
    occurred on 15 March of this year. After the elections concluded there were claims made publicly that
    the performance of the Electoral Commission of Queensland was inadequate, with some segments of
    the local government sector particularly vocal. At the summit of mayors hosted by the Premier on 27
    March 2008 the Premier announced that the government would undertake an independent analysis of
    voters’ perceptions of the 2008 local elections. The department of local government engaged the
    services of a private market research company, Market Facts, to conduct this research, and I am
    pleased to say that the results of this research are now available and I have tabled those today for the
    information of the committee.
    The research was based on a data set of 1,000 respondents across all local government areas in
    Queensland. The survey results clearly dispel the notion that the elections were adversely affected
    by amalgamations and demonstrate that the criticism of the management of the 15 March elections by
    opponents of amalgamation were thoroughly unjustified. This research proves conclusively that by and
    large the running of the elections was no different in the eyes of Queensland residents from any other
    previous local, state or federal election. While there were some initial teething problems which can be
    understood given the scope and complexity of the elections, the survey results confirmed that the ECQ’s
    handling of the elections was excellent.
    Key findings from the survey, as I have indicated to other members of the committee, is that
    99 per cent of people who voted in person did not experience any difficulties in lodging their vote; 95 per
    cent of respondents who lodged a prepoll vote said they received their ballot paper on time; only four
    people—that is, 0.4 per cent of the people surveyed—claimed that they did not receive enough
    information to place their prepoll vote; and only one per cent of all people surveyed had difficulties
    accessing the ECQ web site. The survey results did highlight some inconsistencies with some of the
    voting procedures and we will work with the ECQ to ensure that in future the local government election
    process aligns with state and federal electoral processes.

  23. The full details of the poll will appear on the ‘tabled papers’ page of the Parliamentary website within a day or so, I’d imagine.

  24. I have been trying with limiyed success ti obtain a copy of the preference data doe the preliminary count of the 2006 Victorian Western Metropolitian Province from the VEC. The VEC reluctently provided preference data, following an FOI application, 3months after the election but still has not produced a copy of the preliminary count for independent analysis and review.

    When the Parliamentary committee asked the VEC for a copy of this data the commission responded by stating that they have deleted the information.

    This has raised a number of additional questions about the conduct of that election.

    There is an extra ordinary waste of lmited public resources in maintinaing a state and Federal Electoral Commissions. Surely tax payers would be better off if there was one professional electoral independent authorty.

  25. Page 177: For those worried about the double voting in the Gippsland by-election.

    The VEC advised that incidents of multiple voting are detected when the list
    of the names of those who voted are scanned post-election. Any elector who
    is marked as having voted more than once is investigated. At the completion
    of the apparent multiple voter follow-up from the 2006 Victorian state
    election, 91 voters admitted to having voted more than once. These voters
    were “cautioned and advised that if they voted more than once at future
    elections prosecution action would be taken”.802

  26. Page 211 has the explanation of the recount of votes:

    “The Northern Metropolitan region recount, along with the recounts for the
    Western Metropolitan and Western Victoria regions, were conducted on
    Wednesday 13 December 2006 at the MECC in the presence of around 350
    scrutineers. For the recount, all above-the-line ballot papers were
    transported to the MECC from voting centres. The recount itself comprised a
    manual check of over 1,000,000 ballot papers. The VEC summarised this
    Above-the-line ballot papers for each group were checked separately. The
    preferences on all ballot papers marked below-the-line were data-entered into the
    VEC’s computer count application. As a final step, prior to the calculation of the
    result, the total number of above-the-line ballot papers for each group was entered
    into the VEC’s computer-count application.941
    During the recount, the VEC eliminated the human transcription error that
    occurred during the Northern Metropolitan region count, resulting in the
    election of a different fifth candidate.”942

  27. 130 Silent majority, see pages 217 and 218 for how the report deals with the point you raise about calculation of Surplus Value.

  28. Steve how is it that the commissioner has not been able or willing to release a copy of the data-files pertaining to the prelimary count?

    The sommisisoner in responce to an inquiry by the Parlaimentary Commitee stated…

    In response to (the) request seeking preliminary count preference data for the Western and/or Northern Metropolitan Regions, I assume he means the ballot paper data stored by the computers during the preliminary count rather than the recount.

    The VEC does not have the preliminary data – it is overwritten as part of the recount process. A recount is a fresh examination of all ballot papers under scrutiny. Any challenged papers are set aside and formality determined by the Electoral Commissioner under scrutiny. The previous count has no bearing on the recount.

    if this informaton is true it raises serious questions as to the professionalism of the Commissions IT department warranting an independent systems review/audit

    Or if the information is false then it would seem that the commisisoner is in avoidance mode and may have deliberalty mislead the house an offence if proven warrents his resignation or explusion.

    The report on the way in which preferneces are distributed and the caluclation of the Surplus transfer vale is not addressed in the report/ The examples provided are related to the Vcitroian Senate which the State Parlaiment has overall responsibility for. The Senate being a States house..

    There are more questions that have been left unasnwered but are still under review.

  29. I read the report and pages you outlined and whilst the committee overall has covered many of the issues raised there where some issues that they gloss over such as

    1. reports of the VEC accessing the electronic voting Kiosks results prior to the close of the poll, This was somewhat gloss over and turned into a question of secrecy of the ballot – It was a question of security of the ballot not secrecy.

    2. Publication of the preference data files in a timely fashion (not three months after the election following the need to make an FOI application and even then a partial set of data) – Recent reports and statements made by Steve Tully indicate that the VEC had deleted the preliminary Data files? WHY? Do you really believe that the VEC would delete this information and not record or make a backup as any professional IT process would ensure was undertaken as a matter of due course.

    3. The issue of the calculation of surplus transfer vote and segmentation of the distribution of excluded candidates votes has been referred to the next meeting of the EMC. This is an important issue as Analysis; of the 2007 Senate Vote has shown discrepancies in the way in which the STV is calculated. The system was designed at to facilitate a manual counting process for the senate. With the introduction of a computerised accounting system the system needs to be changed to eliminate the distortion in the value of the vote transfer and ideally introduce a re-iterative counting process where the distribution is reset following every exclusion and all ballot papers are re-distributed according to voters preferences in a single transaction per candidate. – See latest submission.

    More questions and hopefully not just polite firing shots across into the air…

    4. There still has not been a satisfactory explanation provided as to why the TOTAL number of votes significantly changes in number between the two counts in Western metropolitan. If the results of a recount change the overall result of the election then it should be the right of the losing party to request a third recount to verify the accuracy of the second count. The count should continue until the results have been confirmed at least twice with no overall change. Without a third recount you cannot be sure that the recount had not introduced an otherwise indicated error.

    5. The VEC uses a random sampling quality control system. The AEC as I understand uses a double entry check verification process, the later being more accurate. Access to the data files allows for more detailed scrutiny of the preference allocation and count. without access to this data it is impossible to properly scutinize an electronic count.

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