Julian versus Julia

Australian electoral affairs made a rare entree into the international news yesterday when Julian Assange announced he would run for a seat in the Senate at the next federal election. You can read about this at Al-Jazeera, the Washington Post and the Daily Telegraph (to name but the first three that I picked out from a Google News search), or by entering “Assange” into the Twitter search engine, where you will be informed that “Julian Assange Incar Kursi Senat Australia”, that “se postulará Julian Assange a un escaño para el senado de Australia”, and that “Julian Assange will in die Politik gehen”. Better yet, the Huffington Post currently carries a big-arse capitalised headline atop its front page which screams, “SENATOR ASSANGE?”

Assange had an electoral learning process of his own which played out live on Twitter yesterday morning, with a first message from the Wikileaks feed announcing only that the organisation would be “fielding a candidate to run against Julia Gillard in her home seat of Laylor (sic)”. Very shortly afterwards, a second tweet declared: “We have discovered that it is possible for Julian Assange to run for the Australian Senate while detained. Julian has decided to run.” The spelling error in the initial tweet betrayed a curious ignorance of Australian history, given that the electorate in question is named after Peter Lalor, who led the famous Eureka Rebellion at the Ballarat goldfields in 1854. One would have thought that Lalor, a radical activist who saw his efforts crudely suppressed by the authorities before going on to a distinguished career as a parliamentarian, might have been better known to Assange – if not to the extent that he would have spelt his name correctly, then at least so far that he might have misspelled it in a phonetically correct manner (“Lawlor”). But I digress.

The Prime Minister has many things to be concerned so far as the next election is concerned, but the threat to her from a Wikileaks-backed candidate in her own seat is not among them. It is quite normal for sitting prime ministers to attract large fields of opponents seeking publicity and/or self-aggrandisement, and par for the course that they make little impression. It is a little-remembered fact that the election for Lalor in 2010 was yet another Gillard-versus-Rudd contest – the Rudd in this case being Van Rudd, the Vietnamese-Australian nephew of the former prime minister who has made a minor name for himself as something of a left-wing agitator. Rudd finished second last in a field of nine ahead of hardy perennial Marcus Aussie-Stone (whose 22 runs for public office have included tilts against Billy McMahon, Gough Whitlam, Bob Hawke, Paul Keating and John Howard) with 516 votes, an eighth of the 4 per cent he needed to recover his deposit. John Howard’s opponents in Bennelong at the 2004 election included one Andrew Wilkie, then running with the Greens. While Howard indeed went down to defeat in 2007, the bloated field of 13 candidates had little to do with it, with Howard and Maxine McKew scoring more than 90 per cent of the vote between them. Gillard is in any case far more secure in Lalor, where she scored a towering 64.3 per cent of the primary vote in 2010. However much of the vote a Wikileaks candidate might be able to secure, it is likely that a very limited share of it will come directly at her expense.

Only with the announcement of Assange’s Senate ambitions did the prospect of a Wikileaks election campaign become of real interest. However, he first faces the hurdle of his eligibility to nominate. Clearly Assange believes there is no problem here, but from what I can gather this has been based on a determination that being under house arrest in the UK need not of itself disqualify him. Another difficulty I might have anticipated would be the requirement that he be qualified to be a voter (and I should issue a bush-lawyering warning on the remainder of this paragraph, pending the receipt of advice from wiser heads (UPDATE: See below) – neither John Wanna or George Williams raised this issue when queried by the Huffington Post). The key word here is “qualified” – a prospective candidate need not actually be enrolled, thanks to an amendment which parliamentarians made for their own benefit so they would not be disqualified if they failed to keep track of their paperwork and dropped off the roll (which happened to Victorian Shadow Treasurer Robert Dean at the 2002 state election in Victoria, where no such escape clause existed). However, a voter who no longer resides in the country will be removed from the roll if they do not make an active effort to remain there, and I would have thought Assange would have perceived himself as having bigger fish to fry over the past few years. (UPDATE: I can confirm that Assange is not on the electoral roll.) If so, Assange would be allowed only three years after his departure to get back on the roll, which raises the question of when he ceased to be legally resident. As far as I can tell, he has not unequivocally resided in Australia since 2007. I presume that a legal incapacity to enrol can be equated to a lack of qualification to be a voter, although perhaps there is a loophole here somewhere waiting to be exploited.

UPDATE: Wiser heads have duly advised, and it looks like I may be correct. Graeme Orr of the University of Queensland writes:

On a quick re-read of the Act, especially the Byzantine s 94, you are largely right – though there may be a quibble about the dates. Let’s assume he didn’t somehow stay on the roll by inertia (that’s possible, but I dare say tomorrow some official somewhere will be checking and if so deleting him). Then it’s a question of whether he was motivated enough to keep up being an ‘eligible overseas elector’, by declaring an intention to return, then actually voting each three years. I suspect when Assange left the ‘eligible overseas voter’ law was in its relatively generous current state. Manne’s Monthly article would be more specific on his life, but from memory he was still studying in Oz six or seven years ago. Say he left in 2005 (he appeared to leave in 2007 – Ed), if he had declared an intent to return to Oz by 2011, within 3 years years of departure, and kept voting, he can keep renewing that right as long as he likes, by declaring regularly an intent to still return. (However much ‘intent’ is thwarted by detentions!) As you say, unless he has been hyper diligent in paperwork from abroad it’s likely would have dropped off the roll: if so, perhaps his UK lawyer has just looked at s 93 and seen that an ‘Aust citizen’ is qualified to enrol, and missed the bit about ‘subject to PtVIII’ (ie being entitled to enrol, which picks up s 94 and the labyrinth the Southern Cross Group is always agitating about). Since his name isn’t John Smith the AEC could confirm all this quite quickly – assuming no privacy issues as the roll is otherwise public… Curiously, he could be convicted under either foreign law or Australian law, but still nominate. Bobby Sand like he couldn’t physically take up his seat. Which then would be vacated by non-attendance sooner or later, and filled by the state parliament, possibly very partisanly, unless a ‘Wikileaks’ party is registered. All good fun, to speculate upon speculation.

Assuming Assange’s confidence in his capacity to run is well founded, he will then of course have the more conventional electoral hurdles to clear. In case any overseas readers happen to have stumbled upon this post, I will henceforth abandon my usual presumption that readers are well acquainted with the intricacies of Australian politics. The Australian Senate was modelled on the US Senate to the extent that members are elected on a state basis, and that all states return the same number of Senators regardless of their population. However, whereas American states elect two Senators at alternating elections, the six Australian states elect 12 Senators (there are a further two each for the two small territories), with six from each elected at a normal “half-Senate election”, which is the kind that will almost certainly be held next year. These Senators are elected through a complex system of proportional representation. In the recent past, seats in the Australian Senate have been won with as little as 1.8 per cent and 2.3 per cent of the vote, in the respective cases of Steve Fielding of Family First in 2004 and John Madigan of the Democratic Labor Party in 2010 (both cases in Victoria). However, such are the intricacies of the Senate electoral system that these two candidates had many things running in their favour which will not avail Assange’s party (I presume he will indeed form such a party, although he could theoretically run as an independent).

The key issue here is that parties are required to rank all candidates running for the election in their order of preference (voters have the option of determining their own order, but this is exhausting work and few make the effort). If a party has votes left over after electing as many Senators as its share of the vote entitles it to, or if it fails to win any seats it all, its surplus votes are distributed to other parties according to its preference ranking. This can be a boon to minor parties which are deemed inoffensive by the two major parties, such as the aforementioned Family First and Democratic Labor Party, as they can receive the surplus votes of each. However, if a party is seen as unduly radical, the major parties can make life very difficult for it by placing it at or near the bottom of their preference order. Such was the case with the anti-immigration One Nation party in 1998 and 2001, which in 1998 polled 9.0 per cent of the national vote but only won a seat in its heartland state of Queensland.

If that’s how things play out for a Wikileaks party, it will face a formidable challenge in assembling the requisite 14.3 per cent quota for election in any given state. The party’s only potential source of substantial preference votes would be the Greens, who in 2010 won a seat in each of the six states with a vote ranging from 10.6 per cent in the largest state of New South Wales to 21.3 per cent in the smallest state of Tasmania. Given that the Greens and Assange would be contesting the same ideological territory, there seems little prospect that the two between them could score the 28.6 per cent required for them to both win seats, given the extent to which Australian electoral politics is dominated by the two major parties. The most likely scenario for an Assange victory in whichever state he chose to run would involve him taking slightly over half the Greens vote, reducing them to less than a quota and thus depriving them of their seat. He would then reach a quota and win a seat after the distribution of the Greens’ preferences – assuming of course that they chose to direct them to him, and not to the Labor Party. So as a rough rule of thumb, and guessing as best as one can about how the parties will order their preferences, Assange would be aiming for the support of about one in ten voters.

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.

24 comments on “Julian versus Julia”

  1. It is rather ironic that anti-immigration One Nation had its 1998 initial Senator-elect disqualified for being a dual citizen.

    If the UK had a non-attendance provision like Australia`s then there would be a lot more by-elections in Northern Ireland.

  2. [ulian v Julia
    How could a twerp be even mentioned in the same heading as our astonishing Prime Minister!]

    I would say that ‘twerp’ has a thousand times more guts than both you and Gillard. And especially Gillard who seemed over eager to show an eager puppy dog like deference to the US and Obama.

    And I would also say that Assanage/Wikileaks has been far more useful companion to democracy than Gillard is ever likely to be.

    I found it quite interesting when this issue was with us previously the eagerness of gillardists to abandon notions of justice and the need to have actually to broken a law before made guilty of one.

    I find it useful to replace current PMs and Labor with Howard Coalition and then consider what the response of people here would be.

    If this was a Howard Coalition government everybody would be in feverish support of Assange and Wikileaks, and condemning Howard to hell and back there again for behaving the way Gillard did.

    And that people are not outraged (as apparently Bob Carr said he was) the way things happen in Sweden and their unusually vigorous pursuit of Assange, simply forquestioning, with no charge whatesover, as if questioning could not take place at any location, and hardly requires the issuance of a Red Notice (usually issued for big nasty crims).

    I expect a replay of the same dog lay down and lick Gillard boots adoration as we exhibited last time. Just goes to show though that some who claim to be labor/left are anything but.

  3. Assange’s chances of being elected to anything in Australia are somewhere between buckley’s and nunn. Even those who support the actions of Wikileaks can see what a deranged megalomaniac Assange is. Not to mention the rape charges hanging over his head.

    Question arising: if a person is convicted of a serious criminal offence by a foreign court, does that disqualify them from election under s44? It doesn’t say they have to be convited by an Australian court, only that they have to be convicted of an offence which is punishable under Australian law by imprisonement for one year or longer. There’s no doubt that rape is such a offence. So if a person is convicted of rape in (say) Sweden, would they be disqualified?

  4. A deranged megalomaniac in the Australian parliament? Why, the notion is absurd!

    My go-to text on constitutional matters, Lumb & Moens’ Annotated Constitution of the Commonwealth of Australia, doesn’t much flesh out section 44 (ii), but the wording seems clear enough to me. If the offence is not under Australian law, there is no disqualification.

  5. Rape is an offence under Australian law. S44 does not say the conviction has to be by an Australian court. I’d be certain that in 1901 a conviction by a British court would have served to disqualify.

  6. The matter of a rape conviction may seem straightforward enough, but it would in principle get rather knotty if a determination had to be made each time (by whom?) as to whether an offence committed overseas also constituted an offence under Australian law.

  7. Interesting question, but I think I side with Bill. For me the wording of the provisions suggests an intent to consider Australian laws. The peculiar wording of the section is to ensure that the provision applies regardless of what actual sentence is imposed.

    No doubt you are right about the UK and 1901, but of course it is not 1901. There is also the matter that – rightly or wrongly – the particular provisions of the Swedish law in question are certainly different to the Australian statutes.

    Here is a discussion of an analagous question in a US case, where the Supreme Court determined that in the absence of express intent, the provisions of a statute would be read as being of domestic concern only” http://languagelog.ldc.upenn.edu/nll/?p=3248

  8. Yes, I think that’s a fair point. Although “rape” is an offence under both Australian and Swedish, the actual statutes are of course different. Ah well, it was an interesting thought.

    On eligibility to be a candidate while being outside Australia, I recall that Adair Blain was somehow nominated to be a candidate for the federal Parliament, and elected, at the 1943 election, while he was in a Japanese POW camp, and presumably quite unaware that he was being nominated and elected. Wilfrid Kent Hughes was re-elected to the Victorian Parliament in 1943 in the same situation. I’d be interested to know under what legal provision that was possible.

  9. William and Psephos

    I think Assange would have a pretty reasonable chance of winning a spot in Victoria, at the expense of either the Libs or the Christian right. Looking at the actual senate vote in 2010 you had Labor on 2.65 of a quota and the Libs at 2.4 with Greens just over a Quota. There was about 0.5Q for the religious right and similar and about 0.4Q for the soft centre and left types.

    Now if the polls are right and there is a fall in Labor votes it would be quite reasonable to assume that Labor might get 3.3 Quotas (sorry Psephos I know Feeney will not like it) and the Libs say 2.6Q.

    Of the lost Labor votes (5% say) assume that about 3% got to the Libs and the remainder go to the left or centre.

    If Assange stood it is probable he would take a percentage or two from the greens and another percentage or two from the centre/left minorities.
    The new senate balance (assuming all other party splits in the minorities stayed the same (A BIG IF of course) would then be something like

    Lib 2.6
    ALP 2.3
    Green 0.9
    Assange 0.3
    Ass R/W 0.5
    Centre/L 0.4

    As minor preferences opn the centre/left distibuted it may be assumed that there would be a new pattern would be
    Lib 2.6
    ALP 2.4
    Green 1.1
    Assange 0.5
    Ass R/W 0.5

    Greens overflow would go to Assange so the battle would be

    Lib 0.6
    ALP 0.4
    Assange 0.6
    Ass R/W 0.5

    Assange’s chances depend on whether any of the right wing mob prefer him to Labor (or liberal) and whether at the end of the preference distribution who leads between ALP, Assange or DLP. ( I am assuming that the Libs will have a fairly strong position at about 2.6 and would not be distributed early and that Labor starts from a relatively week position).
    Assuming Labor was eliminated first, depending on preferences labor could determine who wins – either pushing Assange over the line or the DLP.
    Of course the Libs might Also make a cause celebre out of Assange and preference him ahead of of the DLP.
    Labor will of course have to make a decision when doing preference swaps as to who will be most likely to assist a third candidate over the line (assuming they start better than ant 2.3 Q. Assange’ mob are more likely to preference Labor whereas the DLP (and assorted RW, will typically go to LNP)

    If Assange did NOT stand the 5% of votes he started with would presumably sit with the Greens and centre left. After preference distribution there would not be enough to get Feeney over the line. IF the Libs

  10. Sorry accidentally gave ALP one too many of the centre left distribution

    Final should be

    Lib 0.6
    ALP 0.3
    Assange 0.6
    Ass R/W 0.5

    Probably not enough to push assange over the line UNLESS some of the odd RW (Shooters, ON etc) preferenced him ahead of the DLP – possible given their “anti big government” focus.

    Any way my point is that IF aAssange could cobble more than 5% of of the vote and get preferences ahead of the DLP he is in with a CHANCE.

  11. William

    In fairness to Assange on the Laylor spelling I think that just might be an old NSW thing. Growing up and being taught about Eureka at school I was CERTAIN his name was La(Y)lor not La(w)ler. Got a real surprise to finally learn the Lalor spelling. Not sure what it is like elsewhere.

  12. Theoretically one could get elected to the Senate by polling 1 vote and then gaining preferences from all other candidates. That’s more or less what Fielding and Madigan did. So nothing is impossible. But I still think it’s highly improbable that a weirdo such as Assange could get elected. I think he’ll do about as well as Cheryl Kernot did in 2010.

  13. 17

    Why would they need that one vote? All they need is preferences from candidates who get more votes than can elect their candidates.

  14. Psephos

    I suspect it will be Easy as for Assange to pull about 5% of the vote. You might find him a weirdo but I suspect you are in the minority. Remember that Joe Public thinks Conroy is a bit odd, not to mention Car and his beard. Senator Fielding was Very, very weird.

    The real question is from whom does he pull it. With Labor’s vote dropping a lot of ex Labor people may park their vote with Assange (before or after the Sex Party). If Labor does well (say gets more than 2.6 Quotas, then sure Assange will struggle. If Labor does less well then it will depend on whom Labor chooses to preference – Assange or the DLP and whether the lost labor votes go strait to Liberal or go to Green of fuzzy centre eg Assange.

  15. I’ve just done a search of the electoral roll to see if Julian Assange was there. He’s not. Graeme Orr in comments on my abridged version of this article on the main Crikey site:

    [‘Expert’ spurting here. If he is as good at paperwork as computers, and as politically minded as he seems to be, Assange could have left c. 2007 and fairly easily remain the roll until at least 2013, provided he kept asking for a ballot. (After 6 years away you need to keep renewing your interest annually). If a journo contacted the AEC they might clear this up in a jiffy, assuming the number of ‘Julian Assange’s on the roll is 0 or 1.

    Maybe he could start the Aust branch of the Pirate Party?

    I suspect this is about publicity for donations and keeping pressure on the Aust government for better consular help. But watching our first (or first serious) overseas candidate, being beamed in by a media that loves-hates him, would be an interesting electoral experience.]

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