Where we at

Those Fairfax and WA Senate recounts are finally set to reach their conclusions over the coming days. That may not be the end of it though …

Update (Thursday 6pm):

The contents of the post below, written overnight, have been dramatically superseded by today’s events. Firstly and most straightforwardly, Clive Palmer has been declared the winner in Fairfax by 53 votes. Secondly and more dramatically, the Australian Electoral Commission has made the bombshell announcement that 1375 verified votes from the original count, including 1255 above-the-line and 120 informal votes, have gone missing during the recount process. The AEC will proceed with a declaration tomorrow, but the initial balance of opinion among noted authorities (by which I so far mean Antony Green and Nick Minchin) appears to be that this will be the subject of a successful legal challenge that will cause the result to be declared void, resulting in the entire state of Western Australia going back to the polls.

The legal issues involved in this are beyond my pay grade (paging Graeme Orr and Antony Green), but I am aware of two precedents worth examining:

• On February 15, 1908, a “special election” was held in South Australia to resolve a protracted dispute over the result of the election of December 12, 1906. The Senate election system at this time simply involved voters crossing boxes of three candidates (in the case of a half-Senate election), with the elected members being those to receive the most votes. Naturally enough, most voters voted for the three candidates of their favoured party. Support in South Australia being evenly balanced between Labor and “Anti-Socialist” (hitherto identified as “Free Trade”), this resulted in six candidates receiving very similar shares of the vote. Anti-Socialist Sir Josiah Symon and Labor’s William Russell emerged slightly ahead of the field and were clearly elected, but very little separated another Anti-Socialist candidate, Joseph Vardon, and two Labor candidates, D.A. Crosby and Reginald Blundell. The Court of Disputed Returns resolved that Vardon was the winner by two votes, but that it would have gone differently had it not been for the failure of a returning officer to initial ballot papers. The result with respect to Vardon was consequently declared void.

There followed a dispute as to whether this constituted a casual vacancy to be filled by the state parliament, which the Labor-controlled parliament of South Australia sought to do by selecting one of its own, James O’Loughlin. This was challenged by Vardon in the High Court, which determined that under the legislation existing at the time it was up to the Senate itself to decide if a vacancy existed. A bill was then passed to have this particular matter and all future recurrences referred to the High Court, which concurred with Vardon that a casual vacancy did not apply with respect to a void election result, and that a fresh election had to be held specifically with respect to the third seat. This was duly held with Vardon and O’Loughlin as the only candidates, with Vardon emerging the winner by 41,443 votes to 35,779 (source: Psephos).

So while there is certainly a precedent for an entire state to go back to the polls for a Senate election, it was conducted in the context of an entirely different electoral system. Presumably a new election would have to be for all six seats, and not simply a partial election as was held in 1908. The Vardon matter also involved the question of casual vacancies, which does not apply here – in Vardon’s case, the result was declared void after his term had begun, whereas the term for this election does not begin until the middle of next year.

• The other precedent which springs to mind for a re-staging of a multi-member election was that which followed the state election in Tasmania in 1979. Under its Hare-Clark system, each of Tasmania’s five electorates returned seven members (now five). The result for Denison in 1979, which returned four Labor and three Liberal members, was declared void because three of those elected were found to have exceeded statutory limits on campaign spending. This caused a new election for Denison to be held on February 16, 1980, this time resulting in Labor losing one of its four seats to Norm Sanders of the Australian Democrats.

Original post:

That election we had a while back is still in a sense not over, with recounts continuing for Fairfax and the Western Australian Senate. While these recounts are shortly to conclude, there is unfortunately a fairly big chance that the next stop will be the courts.

• The WA Senate recount was, last I heard, scheduled to be concluded either tomorrow or on Monday. The recount could potentially overturn the election of Labor’s Louise Pratt and the Palmer United Party’s Dio Wang in favour of Scott Ludlam of the Greens and Wayne Dropulich of the Australian Sports Party if it closes a 14-vote gap between Shooters and Fishers and Australian Christians at an early point in the count (although Labor reportedly plans a legal challenge if this occurs). Rechecking of over a million above-the-line votes has inevitably turned up anomalies, most notably a bundle of several hundred votes that were wrongly assigned to the informal pile, eliciting a predictably hyperbolic response from Clive Palmer. It should be observed that such votes will only have the potential to change the result if they affect the vote totals for Shooters and Fishers and Australian Christians, which applies only to votes cast for those parties or those which fed them preferences (No Carbon Tax Climate Sceptics in the case of Australian Christians, Australian Voice, Australian Independents and Australian Fishing and Lifestyle Party in the case of Shooters and Fishers) – about 3.6% of the total. UPDATE: Oh dear – the AEC reports “a serious administrative issue” in which 1375 verified votes from the original count, including 1255 above-the-line and 120 informal votes, have gone missing. Nick Minchin, who had ministerial oversight over electoral matters during the Howard years, suggests the entire election may have to be held again.

• The Fairfax recount grinds on even more laboriously, owing to the Clive Palmer camp’s tactic of challenging literally every vote that goes against them, requiring them to be sent to the state’s chief electoral officer for determination. The tactic seems to have worked, because the recount process has seen Palmer’s lead steadily inflate from seven to 58. The ABC reports the recount should be concluded either by tomorrow or early next week. However, the Liberal National Party is reportedly set to launch a legal challenge against the result which, if the experience of the Victorian seat of McEwen at the 2007 election is anything to go by, will result in the Federal Court reaching determinations of its own on the status of disputed ballot papers.

• Meanwhile, Kevin Bonham comprehensively catalogues points at issue in the Senate electoral system and the relative merits of proposed solutions, and a piece from Antony Green on the South Australian Legislative Council system also has a lot to say about the Senate.

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.

2,655 comments on “Where we at”

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  2. “@Bowenchris: Delighted to participate in @ChifleyResearch #progressiveoz Conference. Lots of passion in the room from ALP members new & longstanding.”

  4. Rex

    A guytaur points out, there is a major ALP Conference on this weekend. To wildly attack without a strategy is the recipe for failure. Shorten has two weeks to deliberate.

    Then Parliament sits.

  7. Rex Douglas@2448


    I want to see Shorten every day out there in the electorate flogging this self-interested rorting Govt.

    The ALP need to take the gloves off !

    There is a ever growing list to take abbott on, the lies, the censorship of information, the multiple back-flips, surprises and excuses since the election.

    Shorten has to find a way to cut through and get his questioning of these matters leading news bulletins.

    Easier said than done, but that is what is needed.

    Shorten needs ‘spice’ in his delivery of speech, currently we almost puts me to sleep when he talks.

  8. ruawake@2454

    Rex

    A guytaur points out, there is a major ALP Conference on this weekend. To wildly attack without a strategy is the recipe for failure. Shorten has two weeks to deliberate.

    Then Parliament sits.

    Yep, spraying ill thought out stuff around the place doesn’t really help much.

    Far better to plan, take careful aim and then let them have a good blast.

  9. “How does this happen before July 2014 pumkin ?”

    I don’t know ruawake, I’ll leave that to you experts but you can call me pumkin anytime you like …

  11. [ prettyone

    Posted Sunday, November 3, 2013 at 5:08 pm | Permalink

    “How does this happen before July 2014 pumkin ?”

    I don’t know ruawake, I’ll leave that to you experts but you can call me pumkin anytime you like …
    ]
    ————————————————–

    Q: What do you get if you divide the circumference of a pumpkin by its diameter?

    A: Pumpkin pi.

  14. How is this a threat to Newmans personal safety?

    [“We do not forgive, we do not forget. Campbell Newman expect us,” it said.]

    Anonymous are not a violent group.

  16. [How is this a threat to Newmans personal safety?]

    It isn’t he just likes keeping lists of nasty people.

    Did you hear Newman wants the CMC to investigate Clive, to find out what he may say. The thought police are growing in Qld.

  17. { poroti

    Posted Sunday, November 3, 2013 at 5:19 pm | Permalink

    badcat

    As The Knack said back in 1979…
    ]

    —————————————

    Poroti – well done – Fantastic band – “Good Girls Don’t ”

    So sad, Doug Fieger battled brain and lung cancer until his death on February 14, 2010, in Woodland Hills, California, at the age of 57.

  21. Comment by email from my friend attending the ALP event in Sydney today:

    [Fabulous – Chris Bowen is on now with John and there is a lot of cross factional co-operation in the FPLP.

    It is the union bosses who are the real problem. None of them here all weekend except United Voice (Misco’s) and that doesn’t surprise me as they won’t deal with hard left or the right.]

  25. [The State Opposition Leader Mark McGowan has proposed a number of reforms which he says will make the Labor Party more democratic and exciting.

    Mr McGowan told the State Labor Conference in Perth he has nothing to fear from change.

    “Labor needs to broaden its support base and lay out the welcome mat by making the party more democratic,” he said.]

    He should take on the MUA’s attempted takeover.

  26. Antony Green on the WA Senate debacle and likely re-election:

    [The election would go through exactly the same procedures as a general election. Writs would be issued, a 33 day campaign would follow, a polling day would be held followed by a count. Unless the High Court surprisingly decided differently, new nominations would be called for. Unless the High Court ruled that the roll as at 7 September be used, there would be a new close of rolls.

    New nominations would almost certainly see a huge increase in the number of candidates. Once again we would see intricate preference deals.

    The Electoral Act can’t be changed before the re-election to change the electoral system or vary the nomination procedures. To do so would mean WA was being elected on a different basis to other states, something highly likely to clash with the constitution.

    Would all six seats be up for re-election? Perhaps the Labor and Liberal Parties might argue the three elected Liberal candidates and first elected Labor candidate should not have to face re-election.

    However, the Robert Woods case in the 1980s and Heather Hill case in the 1990s shows the High Court accepts the election is for six Senators elected together. You can’t break the elected candidates into groups.

    Any election for two Senators would deliver a fourth seat to the Liberal Party so every other party would argue against a two vacancy election.]

    http://blogs.abc.net.au/antonygreen/2013/11/whats-going-on-with-the-wa-senate-counct.html

    No electoral reform prior to the re-election. I’ve got a feeling the ballot paper is going to be larger next time round than what it was last time. 🙁

  27. I cannot quite understand the criticism of Shorten in his early weeks as Leader.

    For sure, most of it is politically motivated by PVO and Murdoch, but there appears to be some on this site, too.

    Shorten and Labor should take this time before the resumption of Parliament to sharpen their focus on the issues that will matter in the fight in the months ahead.

    I’m certain the Leadership team and the Shadow Cabinet are doing just that.

    Meantime, Tanya Plibersek will do an admirable job as Acting Labor Leader.

  29. lizzie

    [The mine, to be operated by a joint India-Australia consortium, GVK-Hancock, is the first to be approved since the introduction of a new water trigger rule by the previous federal government.]

    This is why Joyce and Bishop flew to India to attend GVK juniors wedding, of course the Libs were going to approve it.

    On the other hand BHP has pulled out of the Abbot point coal terminal today – related? You betcha.

  31. I think Newman is squealing because now he knows the world has taken notice of his trampling of rights.

    Something Blelke Peterson did not have to cope with.

  33. Seems the big news today of hundreds of Australia websites being hacked by Indonesians unhappy over spying has not hit AAP yet, thus is not reported.

  35. [This is why Joyce and Bishop flew to India to attend GVK juniors wedding, of course the Libs were going to approve it.]

    Wow, such blatant conflict of interest! And we paid their expenses to boot!

  36. Can anyone remember Australian Ambassadors being called in by Foreign Govts and the Foreign Affairs Minister has said nothing?

  38. [Any election for two Senators would deliver a fourth seat to the Liberal Party so every other party would argue against a two vacancy election.]

    Maybe they should have an election at which only the ALP, the Greens, The Puppies and the Sporties could contest the two vacancies …

    😉

    Note wink … I’m only joking …

  39. [‏@heatherewart730 44m
    New WA senate election could bring different results. Mates in country and city there tell me they won’t vote above line next time #auspol]

  40. Palmer runs various Coal Mines and a Nickel Refinery.

    Anyone who thinks he is going to block the Axing of the Carbon Tax is a moron.

  41. How many times will the Coalition need to apologise to Indonesia for all of Labors stuff ups??

    First Abbott had to apologise to Indonesia for Labor stuffing up on Live Export Ban. Then he had to apologise to Indonesia for opening the flood gates to the Illegals.

    Now he has to apologise for Labor helping the U.S spy on them using our embassy. How many more sorrys will we need to give for Labor stuffsups of the last 6 years?

  42. [Anyone who thinks he is going to block the Axing of the Carbon Tax is a moron.]

    He will block it until he gets let off the money he has refused to pay. It easy peasy, drop the Commonwealth Litigation demanding he pay $6 million and its OK. Except he wants everyone treated the same.

    Surely Joe can find the $26 billion easily, he found Ten for the RBA.

  43. [New WA senate election could bring different results. Mates in country and city there tell me they won’t vote above line next time #auspol]

    I’ll believe that when I see it, esp if there are the same or an even larger number of candidates next time.

  46. I am having a very vitriolic argument in another forum about the alleged 30,000 votes the LNP lost by. I’ve done a search but I’m having trouble finding authoritative articles on this.

    Can anyone suggest any? I embarrassed myself by posting a few from 2010. 😛

  48. The thing is that Indonesia knows we spy on them, Indonesia spies on us everybody spies on everyone else.

    The issue is it has become a diplomatic incident, purely because our Foreign Minister is perceived to be slightly more bright than a Tism.

    Downer, Smith, Rudd, Carr, would all have stopped it from growing legs. Ms Bishop does know what to do.

  49. The 15 most marginal Coalition-held sets and the winning margins are as follows:

    Barton 489
    Petrie 871
    Eden-Monaro 1,085
    Dobell 1,166
    Capricornia 1,305
    Reid 1,460
    Solomon 1,500
    Lyons 1,631
    Banks 3,105
    Braddon 3,380
    Hindmarsh 3,573
    Page 4,333
    Gilmore 4,807
    Lindsay 5,234

    Add all those margins together and you’ve got 33,939. If exactly that number of the right people in the right places had changed their votes, the results in each of those seats would have been tied. Add another 15 to get 33,954, and you’ve got Labor winning each seat by a single vote and the Coalition losing its majority.

  50. Surely Newman isn’t upset by that video.

    Its not threatening, it runs an argument that may be right or wrong but that is for the public debate and courts to test.

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