Late count: Herbert finalised, Senate results imminent

Prospects for a legal challenge to Labor’s 37-vote win, as the AEC prepares to press the button on Senate election counts across the country.

New South Wales and Queensland results (Thursday)

So then. New South Wales as expected: 1. Payne (Lib); 2. Dastyari (ALP); 3. Sinodinos (Lib); 4. McAllister (ALP); 5. Nash (NAT); 6. O’Neill (ALP); 7. Fierravanti-Wells (LIB); 8. Cameron (ALP); 9. Rhiannon (GRN); 10. Williams (NAT); 11. Burston (PHON); 12. Leyonhjelm (LDP).

But in Queensland, the second One Nation candidate, Malcolm Roberts, pulled off what I deemed the improbable in getting enough preferences to win a second seat:

1. Brandis (LNP); 2. Watt (ALP); 3. Hanson (PHON); 4. Canavan (LNP); 5. Chisholm (ALP); 6. McGrath (LNP); 7. Moore (ALP); 8. Macdonald (LNP); 9.Waters (GRN); 10. O’Sullivan (LNP); 11.Ketter (ALP); 12.Roberts (PHON).

The primary vote front-runner, Gabe Buckley of the Liberal Democrats, received a remarkably weak flow of preferences, and Roberts was further able to pull ahead of the Nick Xenophon Team, Family First, Katter’s Australian Party and Glenn Lazarus Team candidates at various points in the count. The chart below shows the results at Count 9, at which point Pauline Hanson was elected and her surplus flowed on to Roberts, and the race for the final three positions out of the last nine surviving candidates.



The AEC has announced the button will be pressed in Queensland at 9am, with New South Wales apparently likely to follow either late today or some tomorrow. I’ve now done a spreadsheet for Western Australia, to go with the one I did earlier for Tasmania, showing the frequency with which voters for the various parties included the various other parties in the top six of their preference order (which in most cases means giving them a preference full stop, since most voters simply numbered six boxes above the line). As before, each party’s first preference vote and preference allocations are listed by row, and there are separate worksheets accessible at the bottom left for above-the-line and below-the-line votes.

Victorian result (Wednesday)

1. Fifield (Lib); 2. Carr (ALP); 3. Di Natale (GRN); 4. McKenzie (NAT); 5. Conroy (ALP); 6. Ryan (LIB); 7. Collins (ALP); 8. Paterson (Lib); 9. Marshall (ALP); 10. Hinch (DHJP); 11. Rice (GRN); 12. Hume (Lib).

No surprises there then.

South Australian Senate result (Tuesday)

1. Birmingham (LIB); 2. Wong (ALP); 3. Xenophon (XEN); 4. Bernardi (LIB); 5. Farrell (ALP); 6. Griff (XEN); 7. Ruston (LIB); 8. Gallacher (ALP); 9. Fawcett (LIB); 10. Kakoschke-Moore (XEN); 11. Hanson-Young (GRN); 12. Day (FFP).

A defeat for Labor as the fourth candidate on its ticket, Senator Anne McEwen, loses out to Bob Day of Family First. McEwen had 39,378 votes after the surplus from the third-placed Labor candidate was distributed, ahead of Bob Day on 31,548. As the table below illustrates, McEwen maintained a lead of 50,515 to 44,907 as the various also-rans were excluded, leaving candidates of six substantial parties competing for the last three seats. However, the exclusion of the fifth Liberal, Senator Sean Edwards, unlocked a decisive flow of preferences to Day, a considerable number for the third Nick Xenophon Team candidate, Skye Kakoschke-Moore, and pitifully few for McEwen, and fewer still for the Greens Senator Sarah Hanson-Young – who nonetheless came within 16 votes of a quota at this point of the count. Then followed the exclusion of One Nation, and an approximately equal flow of preferences to Day and the Kakoschke-Moore, and much fewer to McEwen and Hanson-Young, although sufficient for the latter to win election at this point. This left Day to a still greater lead over McEwen, which was dented only slightly by the distribution of Hanson-Young’s surplus.


Western Australian Senate result (Monday)

1. Cormann (LIB); 2. Lines (ALP); 3. Ludlam (GRN); 4. Cash (LIB); 5. Sterle (ALP); 6. Smith (LIB); 7. Dodson (ALP); 8. Reynolds (LIB); 9. Back (LIB); 10. Pratt (ALP); 11. Culleton (ONP); 12. Siewert (GRN).

The outcome of the final seat appeared to be up in the air before the count was finalised, with preferences set to determine the winner out of Rachel Siewert and Kado Muir of the Nationals. In the even, Siewert did it surprisingly easily. With the election of Louise Pratt to the tenth seat and the distribution of her small surplus, two seats remained to be filled with three candidates left in the count, of whom Rod Culleton of One Nation had 104,782 votes, Siewert 936,266, and Muir 67,657.


First up, The Australian reports that “the Senate count is also due to be finalised this week, with results to be known in South Australia and Western Australia tomorrow, Victoria and Queensland on Tuesday, and New South Wales on Wednesday”.

The other big news today was the finalisation of the recount in Herbert, which delivered Labor a final winning margin of 37 votes. The AEC should declare the result some time this week and must return the writs by next Monday, initiating a 40-day period inal which a challenge can be made before the High Court, sitting as the Court of Disputed Returns. This court can either uphold the result, reverse it, or order a fresh election. Overturning could conceivably happen if the court ruled ballot papers had been incorrectly interpreted, or declaration votes wrongly excluded. However, all the talk has been of a by-election initiated on the basis that voters had been wrongly denied votes in numbers exceeding Labor’s winning margin.

There are three stories circulating as potential basis for such a challenge: the Australian Defence Force’s confirmation of a failure to vote by 628 Australian Defence Force personnel participating in Exercise Hamel, a military exercise conducted around Port Pirie, Port Augusta and Whyalla in South Australia, including up to 85 who might have been based in Townsville; claims that people were unable to lodge absent votes in the neighbouring seat of Kennedy due to a shortage of ballot papers; and a statement Senator Ian Macdonald says he has from medical staff a Townsville Hospital that AEC officials neglected to provide ballots in a particular hospital ward.

A number of legal precedents are of note here. At the Queensland state election in July 1995, the Labor government under Wayne Goss eked out a one-seat victory that depended on a 16-vote victory in the Townsville seat of Mundingburra. This result was voided by the Court of Disputed Returns on the grounds that 22 military personnel serving in Rwanda did not receive the postal votes they applied for in time due to a transportation bungle by the Australian Defence Force, combined with errors made by the Electoral Commission. A by-election was ultimately held the following February and won by the Liberals, resulting in the fall of Goss’s government.

On a purely legal level, the relevance of a case centred on postal votes to the claimed irregularities in Herbert is limited. However, the centrality of Defence Force personnel to the Coalition’s case is very important as a matter of political strategy. The Murringburra by-election was followed at the end of that year by another litigation-initiated electoral re-match — this time in the federal seat of Lindsay in western Sydney, where Jackie Kelly’s win for the Liberals had been overturned on grounds of her employment by the RAAF, an “office for profit under the Crown”. On that occasion, Labor was humiliated when voters gave Kelly a further 5.0% to add to the 11.8% swing she received at the election. If a fresh election in Herbert is to have any chance of being to the Liberals’ ultimate advantage – a very dubious proposition under the best of circumstances – it is crucial that it be presented as a means of redressing the disenfranchisement of military personnel, and not the sort of sore loser act Labor was indulging in in Lindsay.

The second clearly relevant precedent from federal level was the seat of Ballarat at the 1919 election, when Labor’s Charles McGrath was defeated by Nationalist candidate Edwin Kerby by a margin of one vote. This was overturned on the grounds that a handful of voters had been wrongly denied ballots due to various official errors, which in two cases involved voters being denied absent votes. At that time, polling stations were issued with blank ballot papers for absent voting, on which officials would fill out the names of the candidates for the relevant division and provide them to the vote. However, a polling station in Corangamite ran out of such papers, and the presiding officer advised deprived voters to await the arrival of new papers. None arrived, and after several hours, the officer decided instead to issue altered ballot papers for Corangamite – but by this time, two affected voters from Ballarat had given up and gone home.

In response to this episode, a number of legislative changes were made in 1922 – one of which proved to be significant after the Western Australian Senate election was botched in 2013, and another of which has an important bearing on the present circumstance. In determining whether the official errors in Ballarat at the 1919 election were sufficient to warrant a fresh election, the court deemed it material that the deprived voters had intended to vote in a way that would have changed the result. It was felt this violated the secrecy of the ballot, so the Electoral Act was changed to specify that no such evidence was to be admitted. After the 2013 election, this section was invoked to refute the argument that the voting intention of the 1375 voters whose ballots had gone missing during the WA Senate recount should be ascertained with reference to the first count.

This changed to the act widened the scope for potential challenges, so the 1922 amendments also imposed limits on who could give evidence about having been denied a vote. This survives today as section 367 of the Electoral Act, which allows evidence to be admitted only from those who made a claim to vote. Media reports say the AEC set up seven polling stations within the Exercise Hamel area at which 1274 votes were cast, and that a further 1371 force members were taken to vote at surrounding population centres. However, 628 did not cast votes for reasons the Defence Department has declined to shed further light on. Unless these members actually fronted up to vote and were knocked back, section 367 would allow no basis for the court to hear their complaint.

As well as that, the Courier-Mail reports the Liberal National Party has written to postal vote applicants in an attempt to identify anyone who failed to receive their ballot paper. The party’s efforts to cover all bases calls to mind another legal challenge at state level in Queensland, following Labor’s 74-vote victory in the Brisbane seat of Chatsworth in 2009. An LNP fishing expedition cited 130 postal vote applications for which no vote was processed, 30 cases of multiple voting, and various other bits and pieces. Most of these were deemed to have had innocent explanations, and the 10 genuine discrepancies that were identified were too few to influence the result. But with the federal division of Herbert having three times as many voters as the state district of Chatsworth, and fewer than half as many votes having decided the result, there seems to be an even money chance that a court challenge will give the Coalition what it appears to believe it wants.

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.

362 comments on “Late count: Herbert finalised, Senate results imminent”

  1. So, of the three parties that agreed to the Senate voting changes, Liberal, Greens and Xenophon, Xenophon gains two seats at the expense of the Liberals and Greens respectively. Who said he wasn’t cunning?

  2. Frickeg: The Nationals haven’t been a show in federal politics in WA for decades. Tony Crook only got in out of an intense hatred from basically everyone for Wilson Tuckey, and well-liked star candidate in David Wirrpanda couldn’t get them over the line in 2013, only months after they smashed it in in the state election. That their lead candidate in 2013 defected from the Greens and would have been an exceptionally strange mix in a party room with Joyce and Christensen probably says something about the extent to which Nats people took it seriously as opposed to jockeying for room at the 2017 state election.

  3. Well, the preferences have spoken and SA gets the useless, undead seat-warmer, Bob Day back. Three more years of him being nothing more than a proxy Liberal (except if the legislation isn’t evil enough for him.)

    So we get the ultra-conservative and super-useless Bob Day and Don Farrell, and lose the progressives Anne McEwen and Robert Simms. Fantastic. Can we do a recount, so we can find a way of having Penny Wong lose her seat to some dinosaur as well, while we’re at it?

  4. I don’t think Labor or the Greens result is particularly embarrassment. Xenophon was always going to cause mayhem.

    So now Turnbull still has to deal with Day, Lambie, probably Leyonhelm, possibly Lazarus and Hanson and her mob. What a mess.

  5. Does make it easier for Turnbull now – only needs 9/11 instead of 9/10. A lot more flexibility there, though all (non-Green) roads still go through NXT and One Nation.

  6. So now Turnbull still has to deal with Day

    He’ll be a Liberal proxy like he was last term – maybe he’ll hold out for a little more nastiness sprinkled onto legislation but that’s it. It won’t be a problem at all for Turnbull.

  7. jack a randa @ #77 Monday, August 1, 2016 at 3:16 pm

    Triton, I can’t find any case where the court has interpreted “punishable… by imprisonment for one year or longer”. It just seems obvious to me – if the drafters had meant “under a sentence of one year or longer” they would have said so. “Punishable” is referring to the worst potential penalty.

    My issue was with the intended meaning of the section given its grammar, which I find ambiguous, or at least not completely clear:
    Any person who: … has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer…

    I interpreted “for one year or longer” as the object of “convicted”, the equivalent of the rearrangement:
    Any person who: … has been convicted and is under sentence, or subject to be sentenced, by imprisonment for one year or longer for any offence punishable under the law of the Commonwealth or of a State.

    Also, I find it odd that eligibility would be determined by the maximum sentence rather than the severity of the offence that the court actually found. If you are sentenced to one day in prison because the court found the offence to be quite minor, why is the maximum sentence relevant to your eligibility to sit in parliament? The maximum is for a much more severe offence that you didn’t commit.

  8. But Triton, by rearranging it you’re completely changing the meaning – naughty, naughty! Of course if you were only sentenced to one day in gaol, you’d only be “under sentence” for that one day, so after that you’d be hunkydory. Not all totally rational by our standards perhaps, but the Founders put it in the Constitootion and the Parliament has never bothered to propose a saner amendment to Us the Sovereign People, so that’s what candidates are stuck with.

  9. Except for Dio Wang & Ricky Muir it looks like the Senate is on track to re-elect just about all previous cross bench. Not sure but Madigan may be the only other one to fall short.

  10. At the half way point, with 38 Senate seats decided out of 76, we have

    LNP -14
    LAB – 13
    GRN -5
    NXT – 3
    ONE -1
    FFS -1
    Lambie – 1

    Likely Voting blocs
    LNP + FFS = 15/38
    LAB + GRN = 18/38
    NXT = 3/38
    ONE = 1/38
    Lambie = 1/38

  11. I think, despite the reelection of the Dementor, we’ve seen anough of the general drift of the voters’ preferences by now to predict that the Illibs have no hope of getting the Construction Industry stuff through a joint sitting. They may get an amended version through Parliament in the normal way if they change it from a union-bashing exercise into a more general body to investigate all corruption and standover tactics in the industry, by anybody including employers. Or even broader – an ICAC.

  12. @Sprocket_
    I think you’re missing either NT or the ACT. I’ve got LNP 15 and Lab 14 and 40 seats but otherwise we’re in agreement.

  13. “I don’t think Labor or the Greens result is particularly embarrassment. Xenophon was always going to cause mayhem.”

    Yeah, in fact alot people forget Labor were always predicted from commentators to get three senate seats, with Xenophon getting four. For them to miss out on .5515 quota is extremely unlucky when it look certain they would pick up four. Labor’s primary vote in SA in the senate increased by +4.66% from the last election too.

  14. Booleanbach: Madigan has definitely lost; he polled a pathetic 0.15%. Don’t forget Lazarus has probably been defeated as well, and there’s still a chance Leyonhjelm might lose. But I do think it’s fair to say that, as a group, the pre-election crossbench has outperformed expectations. (Most people had written off Day and Leyonhjelm, although many gave Lazarus more of a chance.)

    It looks like the lower house will finish up with a whopping 17 non-classic divisions. I’m not positive, but I’m fairly sure this is the largest number ever. I can’t think of any other occasion when anything comparable could have happened – in fact I suspect it’s probably about double the previous record. So while the expected surge of lower-house crossbenchers didn’t happen, something significant did.

  15. “Except for Dio Wang & Ricky Muir it looks like the Senate is on track to re-elect just about all previous cross bench. Not sure but Madigan may be the only other one to fall short.”

    John Madigan missed out, but after he left the DLP that was always are given. In fact when he was in the DLP, he won his seat from micro-parties gaming the system, that the election of Ricky Muir has made famous for.

    Glenn Lazarus lost his seat as well.

  16. From Stephen Murray

    Accumulated 6/3 year terms using order of election method for SA/WA/Tas

    Libs 7/6
    ALP 6/6
    Greens 2/3
    NXT 2/1
    JLN 1/0
    PHON 0/1
    FFP 0/1

  17. Can someone who is more adept at spreadsheety stuff than me please post a very simple outline of where the preferences came from that pushed Day up from 0.3732Q, past the Hansonite and then past 4th Labor on 0.5515? I presume once he got past the Hansonite, his/her prefs pushed him past Labor. But a very simple list or chart would be nice. Please.

  18. Jack A Randa

    But Triton, by rearranging it you’re completely changing the meaning – naughty, naughty!

    I don’t think I am. I only rearranged it to make clear my initial interpretation. If you insert one comma into the original, you get that meaning unambiguously:
    Any person who: … has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State, by imprisonment for one year or longer…

    I admit the grammar is sloppy, which you wouldn’t expect in a carefully crafted legal document, but that’s how I first saw it. Anyway, I think now that your interpretation is probably right.

  19. @Jack A Randa
    The exclusion of the 5th Liberal put Day decisively ahead. They split for FF 10 times what they did for ON , and they were ~65% First Preference Liberal votes. So it was Liberal preferences that made it decisive. Let me see if I can find the point that pushed him up to the point where he was competitive.

  20. But Triton it doesn’t make sense with that comma – if the bit between commas is elided you’d get “under sentence by imprisonment of one year”. It is was “under sentence of…” your reading would be correct. And I don’t find the grammar hard or sloppy – the whole of “punishable… for one year or longer” is acting as an adjectival phrase qualifying “offence”. The offence, not the being under sentence. I guess if they’d said “for which the maximum sentence… is” it would be clearer, but it’s clear enough. But you seem now to agree with me, so let’s wait for the challenge to Purported-Senator Culleton.

  21. @Jack A Randa
    Actually they were close on First Preference counts to start with 30,312 vs 31490. The Liberal Preferences basically decided it by themselves. I’m to lazy to eyeball through and try and find out where the other ~35% of the Lib votes transferred came from.

  22. Timothy, thank you. The 5th “Liberal”, with .2358Q plus added trickles. Of course. Basically helped to elect a 5th illiberal Liberal anyway.

  23. TR, I quite understand your laziness,and at least it’s a bit less than mine. It would really help if the AEC just omitted the rows for the excluded candidates, so the tables would get progressively shorter. (Is there an Excel routine that can do that? Should be one.)

  24. It’s a shame Bob Day (Family First) pushed out the 4th Labor. He will vote mostly like a fifth Liberal, so that last SA seat could turn out to be crucial. Would have preferred just about anyone else.

  25. Steve, 5 out of 12 is still a minority. And although everyone thinks of the Xenos as wet Liberals, they’ve tended to agree with Labor (also known to the wilder left as wet liberals) on a lot of issues, like ABCC and banks.

  26. It’s definitely a shame that Day got ahead of Labor.

    The preferences up to this point had been very good for Labor + Greens.

    However, I don’t know that I agree that Day is going to vote ‘in a bloc’ with Malcolm Turnbull.

    Sure, if Bernadi was running the party, I would expect Day to vote 100% in line, but with Turnbull at the wheel, Day will likely be voting against relatively often. Particularly being as Turnbull introduced senate voting reforms designed to stop people like Day from being elected in non DD elections.

  27. I had a Not-A-Poll on my site on the number of non-Green crossbenchers to be re-elected and three was the favourite, closely followed by four. Assuming Leyonhjelm gets up and Lazarus goes it will be four.

  28. No, it dropped to 35 with the replacement of an ALP with Day.

    Ouch. Though I guess as long as it holds there ALP+Greens+NXT have veto power (since tied votes in the Senate count as ‘no’), and with one of the indies (Lambie, proabaly) have enough votes to pass things.

    Still a much better position than the government will have, as they’ll need both NXT and ONP onboard to pass anything (assuming they can’t get the Greens).

  29. Re SA

    From a Coalition vs every one else perspective, the SA result is a bigger blow to the Government than to Labor. Effectively, the Liberals lost one seat that it could rely on 100%, even though it retained the 99% Bob Day.

    From the perspective of the Left, one seat was lost from the Greens, but the Greens were not the most reliable colleagues for Labor by a long shot. Patently, Labor could rely on the lost Green more than the Liberals could rely on the lost Liberal.

    In their place is a new bloc of the three Xenophon senators. Now these people could go anywhere on any subject. Some things are more predictable than others but, yet again, this benefits Labor, which knows how to negotiate, deal with and respect potential allies, as opposed to the Coalition whose only tool of persuasion is bullying and abuse.

  30. That SA result has taken me massively by surprise. I haven’t really followed it much since election night, as I thought of all of them that one looked to be the most predictable. Clearly not.

    Does anyone know when the last time the two major parties failed to secure more than 7 senate seats between them (if at all?) Seems almost historically low.

  31. Well, it appears Sandra Kanck was right all along in her judgement on the Senate preferences in SA from her call 2 weeks ago (see Kevin Bonham post on this thread 1Aug 5.38pm) , despite some scepticism here. Out of the many people I spoke to who had an eye on the Senate count in SA, no one else gave Day a chance.
    And I am set back a tenner.
    And the world is not a better place either.

  32. Confirming that the AEC advises that the button press for Qld is 9am on Thursday, with the formal declaration happening Friday at 11am.

  33. Sigh. Anyone who thinks Day will be a problem for Turnbull needs to look at his voting record, where he almost always votes with the Liberals, unless he considers their position not far enough to the right.

    Maybe now Labor will finally stop preferencing Fundy Families?

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