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. Liberals are having doubts about pushing for a bye-election in Herbert through the courts. The risks of appearing to looking as sour grapes about the result, and a potential further swing against them if bye-election was called which could further damage Malcolm Turnbull’s standing are weighing.

    “Advice to Mr Turnbull is understood to be mixed. Liberal strategists say a push for a fresh election based on alleged irregularities such as Townsville-based soldiers not getting to a polling booth, could smack of Mr Turnbull quibbling with the voters’ verdict and refusing to accept their say.

    It is also argued that defeat at that byelection would damage, possibly fatally, his already bruised post-election authority.

    On the upside, however, is the argument that winning the seat back would restore the well-liked Mr Jones, and double Mr Turnbull’s tiny majority from one to two. ”

  2. Soc, in breaking news, it doesn’t matter so much who Labor “preference” now. Since the voting reforms which they opposed, their voters have broken the party shackles – 3% of Labor voters followed the HTV in Tas and 15% in WA accordin’ to Dr Bonham’s analysis. I presume anticipation of this was why the caucus was whipped so strongly into opposing the very sensible and democratic reforms. The faction leaders do like blind obedience from their followers. (Cue outrage from WWP and dtt…)

  3. Wakefield called the Family First result back on July 13 in the Senate Photo Finishes thread. William misread the numbers in SA – I think he didn’t pay attention to the very large Liberal overflow.

  4. Maybe now Labor will finally stop preferencing Fundy Families?

    1. They didn’t
    2. Where Labor directs their preferences is irrelevant in a two candidate race where one of the candidates is Labor.

  5. [Cue outrage from WWP and dtt…]
    Lol I don’t know if you have appalling comprehension skills or you are a compulsive liar but I for the lift of me can’t think of a third possibility. Under either the old or the new system I think anyone who voted the group voting ticket or followed a HTV was a bit of a lazy clown, I can’t remember last time I did either. Well not quite when I was Treasurer of the campaign I’m pretty sure I followed our HTV but that is a bit different.

    What I don’t buy is that the broad group of lazy clowns didn’t think they could count to 100 if they wanted (you ask most of them if they can count to 100 i bet there aren’t too many who volunteer they aren’t sure if they can or not, nor do I really think they were in anyway dissatisfied with the group voting tickets, I suspect that if there was a reliable poll of people who routinely just voted for a group ticket above the line there is a very very tiny fraction of political nerds (almost all of whom probably inhabit boards like this) who wanted any kind of change.
    The change was driven by insiders who were unhappy with the result and wanted to try and force these lazy clowns to be a bit less lazy and do their own preferences, and this of itself isn’t all that objectionable. Telling lots of lies and distorting facts to justify a change is indeed, to my mind, much more objectionable than the imperfections of either system. It is very Abbottesque of those involved.

  6. ” this of itself isn’t all that objectionable” Exactly. So why the ferocious opposition from what is supposed to be the party of the people? (Except for Gary Gray)

  7. [o why the ferocious opposition from what is supposed to be the party of the people?]
    I think technically Labor is supposed to be the party of the worker, and philosophically, at least traditionally weighted the benefit of the group above the rights of the individual, so a change such as this driven very much by individualism doesn’t sit will with that in the first place. The case for OPV over compulsory preferencing also was not made at all, it was completely lost in the lies about randomness and the distortion distortion of perfectly legal and publicly published information as somehow dodgy.

    Again not to say OPV might not win in an informed intelligent debate, in the unlikely event we have one of these but it certainly was not discussed in any depth or in anyway honestly.

    Perhaps Labor perhaps like me they objected to the dishonesty of the change campaign, and there is the practical reality the LNP and Greens were trying to get an advantage out of it. Without even an honest case for change, let alone a compelling honest case, why the hell would any intelligent party support it?

    There is also the obvious inconsistency between this change and the (lol) fundamental human right to a preferencing chicken gate (oh I’m too dumb and too lazy to preference any further you must let me stop it is my human right to admit I’m a lazy idiot at this point rubbish) but not to consider there might be an equivalent human right not to express a preference at all (which is logically exactly the same just a few numbers earlier).

    I would have loved to have a deep and honest debate of OPV vs full preferencing of compulsory vs voluntary etc, but we didn’t we had lies and distortion and that is the way Trump and Abbott do democracy i thought we as a country deserved better.

  8. WWP: “I think anyone who voted the group voting ticket or followed a HTV was a bit of a lazy clown.” So I guess the 95%+ of voters who followed GVTs are lazy clowns … or they were just, you know, not hugely interested in politics. You shouldn’t need to be an expert to cast a reasonably informed vote.

    According to my recollection, there was one side of the Senate reform debate telling brazen lies and distorting facts, and it sure wasn’t the side arguing for reform (remember the Coalition’s perma-majority? And how 25% of people were going to be disenfranchised, and yet were also lazy slobs for not filling out 120 boxes below the line?).

    In any case, I find it hilarious that Bob Day has been saved by the system he argued so vehemently against. While I am disappointed that Day was re-elected, this SA result is far more palatable than SA 2013, since it is the result of actual voter choice and not terrible backroom decisions by Labor and the Greens (yes, I know the Greens didn’t actually have an effect on it, but that doesn’t mean they should be let off the hook). Maybe Day and Leyonhjelm should have believed in themselves a bit more.

  9. [So I guess the 95%+ of voters who followed GVTs are lazy clowns … or they were just, you know, not hugely interested in politics. You shouldn’t need to be an expert to cast a reasonably informed vote.]
    No you shouldn’t and that perhaps is why we had GVT, people wanted them and all they had to do was chose the side they wanted to support and trust the rest of the process to that side they trusted. Perhaps this was why there was almost zero discontent with the old system outside the insider elites.

  10. I’d actually say that Day was saved less by the new system and more by the low quotas of a Double Dissolution election. Had this been a half-Senate election, there’s no doubt he would be gone.

  11. When group voting tickets were introduced in 1984, it was only because the Coalition and the Democrats refused to agree to Labor’s policy of introducing optional preferential voting. Labor wanted either the list PR system introduced for the SA LC in 1975, or the OPV system introduced for the NSW LC in 1978. Labor wanted this because of conservative to stacking of the NSW senate ballot paper in 1974 to force up informal voting, caused by full preferential voting.
    The system introduced for this election was exactly what the Labor Party was pushing for in early 2014. Labor agreed to the JSCEM report for 1 only with other preferences optional. National Secretary George Wright did argue for a system with a minimum number of preferences when he appeared before the original committee’s hearing.
    Wright didn’t appear before the second brief inquiry into the final Senate changes.

  12. Labor’s opposition to the voting reforms was good policy and good politics, coming from someone who has called for the abolition of GVTs for many years now.

    On the policy side of things, the bill was rushed through. Such a fundamental change to the voting system shouldn’t spend a couple of weeks at committee. True, JCSEM spent some time on it, but it was then shelved for almost two years. The final product deserved far more scrutiny; and many more changes should have been rolled in to make for a good reform package.

    And the politics. Had the bill gone down, no DD. Had Labor done worse in this election, then yes, the Senate might not have looked that great for it. Opposing it also meant it got on the good side of many minor parties, who were fairly united on this issue. We often praise Labor for its ability to manage minority governments in leftist forums, well, here is one example of it.

    It is kinda funny reading the hysterics coming from the ‘electoral nerdist’ community regarding . Kevin (for whose work I generally have a lot of respect) going so far as to label GVTs a breach of human rights takes the cake; especially when you consider that most other countries either have FPTP or non-preferential PR; and even those that have STV sometimes have closed party lists. (I think there is actually a lot of merit for having closed lists (i.e. no BTL) here — sure, I delighted at Lisa Singh’s victory, but the delay and more importantly lengthening of the ballot paper probably does not justify the benefit, especially given how few voters avail themselves of the opportunity.)

  13. One plank of the LNP challenge to the Herbert result looks like it has gone down the gurgler.

    “TOWNSVILLE soldiers were given a step-by-step instructional letter on how to vote if they were going to be away on polling day, casting doubt over the LNP’s planned court challenge to Herbert.

    The circular was sent by Defence to ­military personnel on May 13, almost two months before the election.

    Labor said it undermined the LNP’s ­primary argument for a court challenge to the seat’s result, which Labor’s Cathy O’Toole won by 37 votes.


    The letter sent to Defence personnel listed a range of ­voting options.

    “Defence personnel who can’t attend a polling place anywhere in the state or territory for which they are enrolled on polling day can apply for a postal vote,” it said.

    But an LNP spokesman said it was still looking into a range of reports into ­voting anomalies.”

  14. Looks to me like the system is working just fine.
    If enough people voted for Family First then Family First should get a seat.
    If enough people voted for One Nation then One Nation should get a seat.
    If enough people voted for Lisa Singh then Lisa Singh should get a seat.
    That’s the essence of the reform right there.

  15. Joe

    I have followed the debate closely, and there has been nothing like “hysterics” coming from Kevin, Antony or other “nerds”.

    The hysterics all came from the opponents of the legislation, who were predicting massive rates of exhaust, and the disenfranchisement of up to 25% of the voters. It hasn’t happened, and now those same people want to pretend they never said anything like that.

    I am personally won over by Kevin’s human rights argument. It is a fact that people were scared (regarding mistakes voting below the line) into voting “1” above the line. This new system allows them to express their own preferences, no matter how imperfect another person might deem them to be.

  16. I have to say that I regard the new Senate voting system as a triumph of democracy! Much as Bob Day’s election win is unpalatable to me personally, it is a product of conscious voting choices made by electors and deserves to be respected on that basis. As for Turnbull’s idiocy in bringing on a DD, that’s another matter altogether.

  17. My previous post is wrong.

    The Cabinets contains 6 Abbott supporters, including Morrison.

    So Rudd was rejected (probably) by the Nats (5), Abbott supporters (6) and Turnbull.

  18. @Moksha, I agree that much of the opposition to the new system was overblown, and perhaps at times hysterical.

    (Having said that, I do think the outcomes may have been somewhat worse if there wasn’t a very clear, repeated message to vote (at least, although this part sometimes dropped) [1]-[6] ATL, and voters’ tendency to preference larger parties, but that’s beside the point.)

    I also think that claiming our previous voting system was a violation of human rights is also overblown; and that there were legitimate reasons to oppose the reform bill, even if there are no great reasons to support GVTs generally.

  19. Ah, the “Unapportioned” have now been apportioned in all States on the Senate count – so presoomably even the NSW button push can’t be too far away. And if you’re there, dear AEC, I wish you’d delete the Unapportioned line once it’s done its job – it’s now just a distraction.

  20. Joe
    The Federal Labor Party made the judgment that there were political gains to be made in opposing the Reform Bill, so they did so and reversed the position they had taken in the JSCEM. Unfortunately, I think they did indeed make some short term political gains from that decision, so it was the right decision politically even if not ethically. Of course when you make a decision for political reasons, you scratch around for legitimate reasons to justify that decision, and you can always find a few. But I think we should call a spade a spade and admit the real reason the Labor Party opposed the Reform Bill was for political gain.

  21. More than likely.

    Although the CDP might get in with the FF preferences in NSW. QLD is a bit of a puzzler with all those 0.25 quotas bunched up together. NXT, Lazurus, FF, Katter. All a bit of a mess.

    By the time we get into 12th seat territory things get a little weird. I mean, who predicted Bob Day in SA?

  22. And the Vic order of election

    Vic Senators elected:
    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)
    11.Rice (GRN)
    12.Hume (Lib)

  23. …just as I predicted the Vic result back on p 3 at Monday, August 1, 2016 at 8:47 pm (forgive the skiting but I don’t get that many chances…)

  24. NSW is going to be interesting, because Labor has almost exactly 4 quotas, and the Greens almost exactly 1 quota. I am looking forward to seeing what the “left” micro party voters have done with their preferences, and whether one of the left micros (like Sex Party) can magically overtake the LD and CDP vote tallies. Or at least elect the NXT candidate…

  25. And at the risk of spoiling my perfect record, let me predict the same pattern in Qld – that as they’re eliminated from bottom up none of the .2Q lot will reinforce each other and they’ll all give some extra votes to the top 4 ((remember 2nd Hanson will have only .19Q and is therefore not in the top 4 but the Lib Dem is with .37Q), so it will end up 5 LNP 4 Labour, Hanson, a Green and a Lib Dem. Just as if it was a highest remainder system.

  26. Interesting thought Moksha, but NXT is a long way behind CDP, and Fam First (being abbrev’d by someone above as FFS, ha ha) is lurking below with .15 Q, so assuming about 60% of them go to CDP (based on other States) that will put CDP well ahead of LD and almost breathing down ON’s neck. So no lefty or NXT surprise I expect. Pity.

  27. who predicted Bob Day in SA? – a couple of us thought it was a good chance if you check the other thread. The lib overflow with second preference to FF put Day on half a quota.

  28. Anticipating the election of Nella Hall for the CDP I looked up her policies. Take a deep breath and read this:
    Send me to Canberra, and I promise I will fight for:
    ✓ Bringing honest Australian values [as defined by fundies] back into politics
    ✓ Stopping moves to allow gay marriage
    ✓ A proper investigation into the banks – preferably a Royal Commission
    ✓ Protecting our children and ensuring they are safe in schools [meaning no propaganda in favour of tolerance???]
    ✓ Stopping forced NSW local government amalgamations
    ✓ Religious freedom and one law for all [relig freedom as defined by fundies – they’re free to spout intolerance but nobody else is free to criticise them?]
    ✓ Keeping essential Australian assets like food Aussie owned
    Sorta Christian populism, I guess you call that. She is a qualified lawyer so maybe I’m being hard on her in my interp of relig freedom, but she should know we have “one law for all” already so I suspect some anti-Islamic bigotry is coded in there.

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