Queensland election endgame

An account of the electoral and constitutional situation in Queensland, most of it cribbed from Professor Graeme Orr.

I ceased updating my Queensland election count thread on Saturday, partly due to distractions from Canberra, but mostly because incoming votes had reduced to a trickle. With the dealine for receipt of postal votes passed at 6pm this evening, we can expect the final tallies and preference counts to be conducted over the next two or at most three days. No late count surprises transpired, so it is beyond doubt that 44 seats will be declared for Labor, 42 for the Liberal National Party, two for Katter’s Australian Party and one independent, Nicklin MP Peter Wellington, who has thrown his lot in with Labor while the Katter members continue to haggle for terms. To summarise the last four seats I had left on my watch list:

Ferny Grove. There have been 193 new votes added here since Saturday, and the Labor lead of 414 is now at 408.

Mount Ommaney. Another 109 votes added, and the LNP lead is up from 170 to 187.

Whitsunday. A further 249 votes have been counted. Here there is a complication, explained thus by Antony Green: “The votes have been counted but they haven’t been isolated by count centre and so haven’t been entered into the computer system. I’ve had a discussion with the ECQ who are seeing what they can do, but it may be that the count in Whitsunday won’t include all the votes until the actual distribution of preferences is reported this evening or tomorrow. There are no votes missing and everything adds up except the website.”. It matters little – my projection had the LNP lead at 351 on Saturday, and 352 now.

Lockyer. Ian Rickuss never looked comfortable in his tussle with Pauline Hanson, but his lead is now at 194, compared with 183 on Saturday.

Today I wrote an account for Crikey concerning the constitutional situation given the apparent conviction of the Liberal National Party that it can remain in power until any uncertainty surrounding Ferny Grove is resolved. By the time of publication, this had been overtaken somewhat by two events. The first was Campbell Newman’s visit to the Governor to tender his resignation, “pending the appointment of a new Premier” – so not actually a resignation at all then, as far as I can see (UPDATE: J-D in comments reasonably argues in comments that this is overreach, but I remain curious about the timing). Ordinarily when a Premier tenders their resignation, they concurrently advise the Governor to call upon somebody else to form a government. I am left to surmise that the true purpose of the visit was to get in before Annastacia Palaszczuk with legal advice he had sought yesterday, which in the words of The Australian included “a plan for the Queensland Governor to delay commissioning a new government until after a possible by-election in a Brisbane seat that could be months away”.

The second of today’s two events was an announcement by the Governor, Paul de Jersey, which suggested Newman’s visit might not have gone entirely according to plan. Taking to Twitter, de Jersey announced he would “commission new Premier following #qldvotes polls declaration”.Since there is no question that Ferny Grove will be declared for Labor, that doesn’t leave much room for doubt that he will commission Palaszczuk. Certainly the result in Ferny Grove will not be undeclared by virtue of being referred to the Court of Disputed Returns, which will require a substantial amount of time to consider the various legal arguments. This will involve establishing that Palmer United candidate Mark Taverner was indeed disqualified by virtue of bankruptcy; that precedents at federal elections finding against nullification of elections on the basis of candidate disqualification do not apply under optional preferential voting, since those who cast a one-only vote for Taverner were deprived of a valid vote; and that the number of such votes was potentially great enough to affect the result, which would require further scrutiny of ballot papers. There would then follow an automatic right of appeal.

To push the envelope for the sake of argument, the Governor might accept that, for the sake of continuity pending a final resolution, he should install Lawrence Springborg in some manner of ongoing caretaker capacity. However, this would require holding off summoning a parliament in which Mark Furner would be entitled to sit until the Court of Disputed Returns ruled otherwise. To put it mildly, keeping the parliament in suspension for the deliberate purpose of maintaining in office a Premier who lacks its confidence does not seem in accordance with responsible government. If the LNP believes it will attain Ferny Grove in due course, there doesn’t seem any reason why it shouldn’t sit it out in opposition until that occurs – other than the purely political consideration that it would be less likely to win the by-election from opposition, which is no concern of the Governor’s. Furthermore, Graeme Orr observes that the caretaker conventions under which Springborg would presumably be obliged to govern are expressly designed from the period between the dissolution of parliament and the declaration of the result.

If a new election is indeed required for Ferny Grove, which is far from being the foregone conclusion that the LNP and friendly elements of the media are suggesting, the ECQ says the earliest possible date is April 11. However, that is surely based on untestable assumptions as to how long the legal process will take unfold. A notable wrinkle in the situation is the role of the Chief Justice, Tim Carmody, an enormously contentious Newman government appointment to replace Paul de Jersey on his appointment as Governor. As Fairfax’s Amy Remeikis describes it, “the Chief Justice may elect to be the single judge, or appoint another Supreme Court judge to act in his place”. However, Graeme Orr (who you might well think I should just pass this post over to) refuted this notion in an interview on 4BC today, saying there was “a roster of judges that are picked at random in advance”.

UPDATE: I should also have noted the following from Graeme Orr: “The killer argument is simpler. Let disqualified losing candidates upset a close election, and in future every marginal seat will be seeded with a dummy candidate whose disqualification is obscure, but ready to be leaked to upset the result if it doesn’t go the way the dummy’s masters want.”

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.

179 comments on “Queensland election endgame”

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  1. Thanks so much for this overview. The media in Queensland seem more concerned with propagating uncertainty than providing solid information on this subject.

  2. I agree that the chance of a by-election being called for Ferny Grove is small, but even if it happens the chance of the LNP winning it is tiny.

    Voters will be presented with a choice between a Labor government kept in power by Peter Wellington – a figure with a fair degree of respect in Queensland I would say – and Katter having balance of power.

    This is a Brisbane electorate so hostile to Katter that he didn’t even run a candidate there in 2012 when he was running almost everywhere. Meanwhile the LNP will be led by a candidate whose biggest problem was always that he did poorly in Brisbane electorates with a lean to the Liberals but not much love of Nationals. Like Ferny Grove for example.

    It’ll be a bloodbath.

  3. It is indeed all over unless something exceedingly corrupt or errant happens – which even by Queensland standards looks extremely unlikely.

    If there is a by-election then it might be interesting if Turnbull is PM and enjoying a massive honeymoon by then but (i) I don’t think there will be one anyway and (ii) I doubt it would change the result.

    After all, suburban voters in a seat that was Labor for yonks before 2012 voting for a choice between a Wellington-supported ALP and giving the Katter Party the exclusive balance of power. Not sure you could come up with better scare campaign fodder than the latter if you tried.

  4. While many governors of the former military type may well have been bamboozled by the LNP legal arguments, the Qld governor is the former Chief Justice and is very well respected. He would know the law probably better than most others.

  5. I’m guessing Springborg will drop this caretaker government hoo-hah soon enough. Carrying on with it would be an increasingly bad look, and the game is up anyway.

  6. I’ve not seen any coherent argument from the LNP in support of its apparent proposition that it should stay in power pending a possible by-election in Ferny Grove. Several points should however be borne in mind.

    First, it is well established in law that a member declared elected in a returned writ is deemed validly elected in the absence of a declaration to the contrary by the Court of Disputed Returns. Therefore, the ALP will have the valid support of a parliamentary majority once the writs are returned.

    Secondly, if the LNP is arguing that there can never be a new government installed until its majority in the Parliament has survived all possible challenges in the Court of Disputed Returns, then absurd consequences would immediately follow. Even a clear majority might be brought into question, since petitions can be lodged in a number of seats. The Governor could scarcely be expected to pre-judge the Court’s ruling, so the mere fact that petitions were lodged would put changes of government on hold. And it is by no means the case that petitions typically turn on only one question of fact and/or law. On the contrary, petitions quite often cite a multitude of minor errors, omissions and irregularities which, taken together, are alleged to have affected a result. Such cases are typically not capable of being dealt with quickly.

    The concept of putting parliamentary government on hold in such circumstances is, frankly, just stupid; it’s the sort of argument which defeated governments in third world countries try to trot out to cling to power.

  7. [While many governors of the former military type may well have been bamboozled by the LNP legal arguments, the Qld governor is the former Chief Justice and is very well respected. He would know the law probably better than most others.]
    Can’t Governors get advice from the Solicitor General?

  8. But, but… what about Maryborough?

    Still haven’t seen any published preference information that would tell us whether ALP or Foley was the second last candidate eliminated.

  9. Kevin Bonham @ 13: An example I have in mind is the McEwen petition from the 2007 federal election, which wasn’t finally resolved until July 2008.

  10. One final point worth bearing in mind is that the Court of Disputed Returns, at least at the federal level, has tended over the years to be a bit of a happy hunting ground for the worst of the wing nuts who run for Parliament, some of whom have wound up being declared vexatious litigants.

    I had the privilege back in the 1980s of watching a failed Senate candidate from Queensland asking Chief Justice Gibbs for a declaration that he, the candidate, was actually the Governor-General. It was highly amusing at the time, but no sane person would want parliamentary government to be held hostage to such a nonsensical performance.

  11. I’m still curious to find out about the position of the final three candidates in Lockyer (who would presumably be Liberal, Labor and One Nation).

    If Labor were to somehow get in front of One Nation on the preferences of the other candidates, that could be an interesting outcome.

  12. 17

    What do you think of the PUP candidate in Victoria challenging, without PUP backing (she is self represented), the whole election result based on the wording of the electoral act in relation to pre-polls?

    I think it is certainly saner than trying to get the court of disputed returns to declare you are Governor-General.

  13. “The concept of putting parliamentary government on hold in such circumstances is, frankly, just stupid; it’s the sort of argument which defeated governments in third world countries try to trot out to cling to power.”

    Ah Queensland, beautiful one day, banana republic ruled by the LNP the next.

  14. The Courier-Mail leads its coverage with news that one of the two parties in Queensland is “acting at odds with proper Westminster conventions”. Guess which one. This, we are told, comes from “senior legal sources”, who are otherwise unidentified. I feel I’m entitled to assume they were government ones. A source who does have a name, Graeme Orr, gets 32 words to advance the view that the Governor should commission Palaszczuk, which is followed by 93 words of LNP rebuttal.


  15. William Bowe @24:

    So what you’re saying, in essence, is that Murdoch’s up to his usual tricks.

    Why people haven’t tuned him out by now, I do not understand. He’s as predictable as Boerwar…

  16. Is it possible that the Governor may consider past results in the history of Ferny Grove to consider who to install as Premier?

    After all, if a different outcome is produced from the Court of Disputed Returns, it can always be tested on the floor of Parliament.

  17. [Is it possible that the Governor may consider past results in the history of Ferny Grove to consider who to install as Premier?]

    Well it’d be possible, if the Governor was ignoring precedent and good practice. Past results are entirely irrelevant.

  18. Tom @ 22: There’s clear authority at the federal level from the High Court that a petition cannot contain a blanket challenge to the result in every seat. So that aspect of the PUP candidate’s initiative strikes me as likely to be struck out. That leaves the separate question of whether s/he might succeed in challenging the result in the LC province s/he contested. I don’t know enough about the detailed substance of the challenge to have a view on that.

  19. Campbell Newman’s move of tendering resignation pending the appointment of a new Premier is a standard one.

    The sort of thing that people sometimes fail to grasp in this sort of situation is that his commission as Premier (the one he received in 2012) is not (legally speaking) cancelled or invalidated by anything that happened at the election. It remains in force, and he remains Premier, until he dies, resigns, or is dismissed by the Governor, and so long as he remains Premier there’s no vacancy in that position and the Governor can’t appoint somebody else to it.

    In this case, for example, the Governor could dismiss the Premier in order to appoint somebody else to that position: but now he won’t have to, and the reason he won’t have to is because of the resignation. It will take effect automatically when a new Premier is commissioned; the fact that it has been tendered to take effect at that future point rather than immediately means only that legal continuity in the occupancy of the position will not be interrupted. Conventionally that’s treated as important (they move rapidly to appoint a new Premier when one dies, for example, even if it’s only a caretaker — Frank Forde was Prime Minister of Australia for eight days in order to avoid leaving the position vacant for eight days until the ALP could choose a new leader after John Curtin died).

  20. Sadly I think Stacia(as she apparently prefers to be called) is going to get the Gillard ‘government in chaos’ treatment, especially from the Courier-Mail and an LNP determined to find a Craig Thomson among the ranks of her MPs. The standard of reporting at the online Brisbane Times has gone downhill since Daniel Hurst left for the Guardian, and local ABC TV currently devotes more time to footage of sportsmen training than it does to the local political situation. Thank god for new media.

  21. J-D @ 30: “…Gordon Chalk was (Liberal) Premier of Queensland for seven days in August 1968, between the death of Jack Pizzey and the appointment of Johannes Bjelke-Petersen (both Country Party).” A better exampe for a Queensland audience … or maybe not.

  22. Harold

    Be funny if Stacia finds a LNP wanting to swap as happened in SA or as happened with Slipper

    murdoch and the LNP wont let it go though, paint them as illegitimate, already calling them impertinent. Cue stories of bikies to start with.

    LNP just wont let go of power, not a good look, the illegitimate campaign against Gillard by murdoch and abbott did not really gain much currency despite the support of Rudd

    And thanks also William for the coverage, great site to great updates and reliable information on what the options are

  23. [Sadly I think Stacia(as she apparently prefers to be called) is going to get the Gillard ‘government in chaos’ treatment, especially from the Courier-Mail]

    Happily, the election result demonstrated very clearly that QLDers couldn’t care less what the Curious-Snail thinks.

  24. Flying-foxes throughout QLD are watching Government House with pensive looks on their cute faces.

    Seriously anyone who has seen the KAP demands for support would know that a stable LNP government is impossible even if by some miracle they could win Ferny Grove in a by-elections. It’s all hype.

    Labor will form government by this weekend.

  25. There were reports after the Victorian election that Napthine had been asked by party operatives to not concede on election night and to state that the result was unclear without waiting for postals etc.

    The reason apparently advanced was to energise the base and party supporters.

    One wonders whether a similar tactic is behind this craziness.

  26. Have we ever had anywhere a situation where both the leader and deputy leader of the governing party were women?

    I thought we were red-neck hicks up here.

  27. Itep at least that makes some sense. Trying to form the barest of minority government with two KAP votes makes no sense. It would be completely unstable.

  28. davidwh@38

    Have we ever had anywhere a situation where both the leader and deputy leader of the governing party were women?

    I thought we were red-neck hicks up here.

    Last week, there was a slight chance that Queensland would have women for both Premier and LOTO, with Fiona Simpson a possible contender. That is not the case now.

  29. Raaraa
    If Simpson had won, we won have had her, Palaszczuk and Katter all as party leaders and all being the children of former state MPs.

    davidwh – You are right about Katter and stability. I recall Katter snr presented a similar list of demands during negotiations with Gillard et al back in 2010. Give him a sniff of the balance of power and he behaves like he has kidnapped Santa Claus. And then he blows it.

  30. I’m not sure if the KAP approach is a bad one. By asking each party to tick boxes it avoids the problem of ‘doing deals’ while pressing its demands. The list I saw had at least a few demands that Labor are doing anyway. No doubt the Liberals can promise more given they have no chance of forming government but at least it feeds their supporters that electing KAP members is useful.

  31. 29

    The challenge in Victoria has preceded to trial, despite the VEC applying to have it thrown out instead. It goes to trial on the 25th of February. Victoria presumably allows blanket challenges.

  32. VOH: actually that would be Katter middle.

    WP: His father Bob Katter Sr. ran a clothing store and a picture theatre in Cloncurry in 1942 and was a pioneer for the rights of the Indidgenous community – taking down a barrier separating the whites from the blacks and giving Aboriginal station hands store credit for boots and clothes.

    He was Minister for the Army from February 1972 until the McMahon government’s defeat at the December 1972 election.

    Dynasties are not always terrible.

  33. [Have we ever had anywhere a situation where both the leader and deputy leader of the governing party were women?]

    During Kristina Keneally’s time as Premier, Carmel Tebbutt was Deputy in NSW.

    And at that time the Governor and Governor-General were women too!

  34. Re Mimhoff @46: the day after Julia Gillard became PM I overheard a conversation in a Sydney pub in which someone at the next table noted that the whole ‘chain of command’ were women: the Queen, the Governor General (Quentin Bryce), the Prime Minister, the NSW Governor (Marie Bashir), the Premier (Kristena Keneally) and the Lord Mayor of Sydney (Clover Moore).

  35. If you apply English public (i.e. private) school terminology to the Katter dynasty, they would be Katter major, Katter minor, and Katter minimus.

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