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.

2016-08-02-qld-senate-count

Thursday

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.

2016-08-02-sa-senate-count

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.

Earlier

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. joe @ #213 Wednesday, August 3, 2016 at 12:10 am

    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.)

    Perhaps you should consider the arguments I make in more detail before dismissing them as “hysterics”. They are not.

    The human rights case is based around the principle of equal protection before the law, a protection to which we are a signatory:

    “Article 26

    All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

    In any of the other systems that you mention, everyone’s ability to preference is equally unprotected whatever their political opinion, because the ability does not exist. They are inferior electoral systems and suboptimally democratic, but they are not violations of the concept of equal protection. Whoever you decide to vote for, it is just as easy to vote one of the ways the system allows for as another.

    Australia’s former system did violate equal protection by making voting easier for some opinions than others. A person who wished to be protected from having their vote declared informal, and who agreed with their party ticket or did not care where their preferences went, could be protected from voting informally while expressing their intention by putting a 1 in their party box.

    A person who disagreed with the available party tickets could only be protected from voting informally by numbering almost every square with at most a small number of errors, and even awareness that errors were allowed at all was very limited. If the person voting below the line was in fact incapable of numbering from 1 to however many without clerical error (or having their vote binned due to arthritic illegibility, for instance) then their right to vote was not protected under that law at all. But if the same person took the shortcut of voting 1 above the line (even in the process misrepresenting their own opinions), then their right to vote formally was protected. To subject one class of people to an effort barrier and risk of informality in expressing their opinion, but not another, is to fail to afford equal protection.

    Some countries do not have good democratic systems because they lack the resources to do exhaustive preference counts, or because public education would not support such a system. But an advanced nation like ours, if it decides to provide the ability to preference, must equally protect its citizens from loss of their vote whatever their intentions, within reason. The old system did not do that.

    Had there been a reasonable reason to not equally protect all citizens’ preferencing abilities that would have got a free pass under the relevant human rights provisions. For instance, it is not a violation of equal protection to refuse to allow a party with three members to have its own ATL voting box, since there are very sound practical reasons to disallow this. But there were not conclusive practical reasons to so strongly discourage voters from expressing their preferences however they like – as indeed the success of the new system so far is showing. In the absence of a valid reason based on practicality, the old system fails the equal protection test.

    I am not one to go slinging around these sorts of accusations lightly without researching them.

  2. Concerning delays in the Senate results, in my home state the AEC took 25 days to deliver this result as opposed to 17 last time. I think the differences are comparable in the other states. Most of the delay would still occur anyway because of waiting for postal votes. For an extra eight days of counting, which in the long run will be neither here nor there, Tasmania has got a result that is untouched by preference harvesting, that had much less risk of being voided if there were AEC mistakes, and that has allowed Tasmanians to have their say against major party machinations against sitting Senators. It has also got a different Senate result to what would have been obtained under probably either the old system or even had there been liberalisation of ATL without BTL. All this is easily worth an extra week and a bit.

  3. As for WWP, I’ve noticed that lately he keeps repeating the same nonsense (full of unfounded hostile characterisations of the motives behind reform and of the debate) no matter how often it has been debunked and without providing new evidence for it, or indeed generally any evidence for it. The presentation of contrary evidence has absolutely no effect on this behaviour pattern – I can point out that evidence of X or Y was put before JSCEM by numerous experts, he just carries on as if it wasn’t. It seems to be an attempt to win or at least continue the debate by exhausting the opposition because it is not possible to do so in any other way. I don’t think anyone who just carries on ignoring rebuttals as if they were never made is in much position to comment about intellectual honesty.

  4. In Victoria, last out was Family First, preceded by Sex Party and One Nation. The margin from the Liberals to Family First at the exclusion point was 26812 (.1 of a quota). The exhaust rate was effectively 5.1%, rising to 8.6% after throws at the end that had no impact on the result.

  5. “Concerning delays in the Senate results”, we should remember the AEC had a new system thrown at them in April (though they would have been aware for a couple of years that it could be on the way since the JSCEM had recommended it). If Fuji-Xerox hadn’t had a network of “Document Management Solutions” centres already set up, I’m not sure how they would have coped – but the scanning centres were there so no prob. Next time they’ll have more notice, and they’ve had practice. And there may be less parties on the ticket as the micros fold or merge (or not, cos there’s no ego boost like being the leader of your own party – the big fish in a small pond thing.) Even without any changes to the system, they’d only have to double the number of scanners to halve the time, and in this modern world F-X’s business may be expanding regardless of the AEC’s needs so there may be more scanners in the shed anyway. So back to 17 days?

  6. So, Kevin, that means that FamFirst and Sex snuck up the list past Xeno, Lib Dems, AJP, and ON on micros’ prefs and almost caught 5th Lib? (Sorry I find the AEC’s 100 or so pages just too tedious to read so I’m relying on you.) Interesting polarisation there on wowser vs social-libertarian issues if I’ve got that right.

  7. @KB

    Are you aware of any human rights jurisprudence which labels making one way of voting simpler than the other, even if the former means surrendering your vote entirely to a party’s whims, a violation of the equal protection clause?

    Let me give you a comparable example. In the US, ballot papers (or ‘electronic’ ballots) are often extremely long, since they hold federal, state and local elections on the same day. Sometimes, there can be dozens upon dozens of elected offices to vote for. Many states have a ‘party-vote’ square that you can fill-in — voting for a certain party all the way down the ticket. Would you consider this also a violation of human rights?

    Even if there is discrimination on the basis of political opinion, as you alluded to, I think Australia would have had a very easy time claiming that it’s justified given its long-standing electoral law. There would be a lot of deference to individual states on something as their own domestic electoral laws.

    In any case, it would certainly be a very novel argument.

    Supposing that you are right, I believe what you could do is go to the UNHRC… There’s still some GVTs in some states, so perhaps you should take the chance of having the most unusual equal protection case of all time having your fingerprints on it.

  8. Kevin… it’s like a game of tug-of-war.
    You can keep pulling harder and harder and harder… or just let go of the damn rope.
    You have so many better things to do with your life than to spend it trying to convince someone so impervious to logic.

  9. Oh, and Kevin, I agree that on its own, the delay is not a reason to eliminate BTL. If the ballot papers don’t start getting shorter, though… Let’s put it this way, I’m not new to voting, and I had trouble with the Senate ballot paper here. I think this *is* quite the barrier for voting effectively. Eliminating BTL would reduce the area needed for the ballot paper. Closed-list voting is perhaps not ideal, but neither are massive ballot papers.

  10. Thanks Joe. All a lot higher than their primaries, especially FF. But then Kevin’s been showing us that the Christian parties tend to prefer each other more strongly than any other groups (the basis of my prediction for NSW actually). Sex is the surprise – but then the husky-voiced Ms Patten being in the LC gets them a lot of …errrr… exposure.

  11. Oh and Joe, a closed-list system would probably be inconsistent with “The Senate shall be composed of senators for each State, directly chosen by the people of the State”

  12. [As for WWP, I’ve noticed that lately he keeps repeating the same nonsense (full of unfounded hostile characterisations of the motives behind reform and of the debate) no matter how often it has been debunked and without providing new evidence for it, or indeed generally any evidence for it.]
    Ok Kevin while I’m laughing at the human rights argument, I saw some pretty funny legal arguments in play in moots and trial advocacy practice at uni in Law School, and I’ve seen one or two out there attempts in professional life but that argument takes the cake.
    But I’m in a really good mood I’ll play, just point out the posts that debunk my claims and I’ll go back to them, you don’t even need type them again. If indeed they do debunk my claims, I’ll post my acknowledgement of that just below. If they don’t it just give me a bigger smile, so no one loses.

    And for the record I pretty much would say very similar things about your attempted arguments and justifications, but I realise they are just your opinions and you are entitled both to any opinion you want and to maintain them and repeat them. Surprising how many people confuse opinions and facts.

  13. there is an exception I should make, other than drawing a distinction between casting the first 1 or is it 6 preferences, the legislation is a bit inconsistent on that point, and casting preferences beyond that 1 or is it 6, Nicholas here argued quite well and quite intelligently for the changes. I think he did fall into the false random trap but that is a trap that will catch many an insider with poor logic and maths skills so there isn’t a lot of shame in that. But yes when I talk about the case for change I’m talking more of the main political debate and not factoring Nicholas, who I disagree with but put his position / opinion / characterisations very impressively.

  14. Can’t say I’m surprised that there aren’t any links to ‘prove’ my characterisations and opinions are wrong it was always a stupid claim, like most of the pro change claims, full of arrogance and assumption meaning next to nothing.

  15. [Oh WWP how would anybody ever prove to your satisfaction that you were wrong?]
    Many many people have, I have a very open mind and I’m easily impressed by honest compelling arguments.

  16. Well let me give you a quote from the JSCEM interim report, signed off by 4 Labor members and Senators, a Green and a few conservaturds:
    4.5 The requirement to fully outline all preferences below the line, or allocate
    preferences according to a GVT above the line, drew strong criticism from
    many commentators following the declaration of results of the 2013
    election.
    4.6 The majority of criticism focused on the above the line voting system and
    ‘gaming’ of preferences between political parties, and that the above the
    line system does not allow voters to adequately express their preferences
    for the candidates that ultimately may end up representing them in the
    Senate; ‘it means that a voter can vote for a party only to find that their
    preferences end up with a different party for which they never would
    have considered casting a vote.’
    4.7 The undesirability of uncertainty when a voter’s preference ends with an
    unpreferred candidate is compounded by the onerous nature of voting
    below the line. Many voters indicated their choice to vote above the line [was made] because ‘the numbers of individuals was so vast I was concerned I would
    make a mistake and make my vote informal.’
    (The quote is of course from just one submission but clearly they had many more – unless of course you think they were lying.)

  17. (And of course although they called that the Interim Report it was only interim in so far as they still had other issues to address, like electronic voting, so it was the final report on those issues in respect of which they made recommendations.)

  18. Important US Supreme Court ruling against outrageous state Republican ploys to rig the electoral roll, and discriminate against black voters based on voting practices. Do we in Australia set the ID bar higher for some types of voting used by the poor (declaration votes) compared with those used by the comfortably off (postal votes)?
    http://www.smh.com.au/world/us-election/republican-vote-suppression-efforts-packaged-as-reforms-fall-afoul-of-us-courts-20160803-gqjwsm.html

  19. jack a randa @ #256 Wednesday, August 3, 2016 at 6:33 pm

    So, Kevin, that means that FamFirst and Sex snuck up the list past Xeno, Lib Dems, AJP, and ON on micros’ prefs and almost caught 5th Lib? (Sorry I find the AEC’s 100 or so pages just too tedious to read so I’m relying on you.) Interesting polarisation there on wowser vs social-libertarian issues if I’ve got that right.

    They didn’t get that close to the Liberal, missing by 0.1 of a quota.

  20. Joe (#257), re the US case you mention, there are many relevant differences. The main one is this: suppose a US voter wanted to vote across party lines but was only concerned about the most important positions. They could just vote on, say 10 positions, and their vote for those positions would have full effect. But if an Australian Senate voter under the old system had wanted to vote for just ten candidates (knowing that the chance of their vote going any further at much value is pretty low anyway) they would not have been allowed to. They had to fill in 90% of boxes or none of their vote would count. Under the new system, they can do it.

    Now imagine that in the US, the system was that you could vote for a party for every position, but if you didn’t do that, and you failed to indicate a preference for deputy dogcatcher and a few other positions of no interest to you, then your vote for President would be discarded. That would be the best analogy for our old Senate system within the system you’ve described.

    A system that increases convenience for some voters but not others can be justified when there are benefits and there is no way to increase convenience for everyone. You can discriminate if you have a valid reason. But the old Australian Senate system did not only increase convenience for some combination of opinions – it outright banned others from being expressed as a formal vote – unless the voter went on to fill all remaining squares, tediously and at risk of informality, even if the voter had no opinion between the remaining candidates and had to lie to complete their ballot.

    The fact that it had been that way for a few decades is no justification for the practice. The US Supreme Court struck down bans on same-sex marriage however long they had been there, because they violated the equal protection clause. The fact that an argument is novel is not evidence against it being true, especially not in a situation where concern about an existing arrangement suddenly intensifies.

    I have investigated the prospects for launching a human rights case against the Australian government if group ticket voting continued. I found that although we are a signatory to the covenant I quoted from, it isn’t actually legally binding on us and nothing would be achieved.

  21. joe @ #260 Wednesday, August 3, 2016 at 7:22 pm

    Oh, and Kevin, I agree that on its own, the delay is not a reason to eliminate BTL. If the ballot papers don’t start getting shorter, though… Let’s put it this way, I’m not new to voting, and I had trouble with the Senate ballot paper here. I think this *is* quite the barrier for voting effectively. Eliminating BTL would reduce the area needed for the ballot paper. Closed-list voting is perhaps not ideal, but neither are massive ballot papers.

    Eliminating BTL is unconstitutional so if you want a closed-list system then you need to change the Constitution. The Constitution requires a mechanism for voting for individual candidates.

    When the changes were originally proposed it was only ATL that was significantly liberalised. Had someone said we should only liberalise ATL and not BTL, and cited arguments like increased counting cost, increased difficulty voting because of numbers of candidates and so on, then I said at the time I was open to an argument along those lines. Although a system with only ATL liberalised would still have discriminated against some opinions, there may have been a case for it.

    It turned out that the government was actually unable to make any such case and agreed to liberalise BTL as well.

    The big problem with ballot size is too many parties. They gave it a go because it was a new system and a DD but I doubt we’ll see anything like as many bothering next time.

  22. wewantpaul @ #263 Wednesday, August 3, 2016 at 8:44 pm

    As for WWP, I’ve noticed that lately he keeps repeating the same nonsense (full of unfounded hostile characterisations of the motives behind reform and of the debate) no matter how often it has been debunked and without providing new evidence for it, or indeed generally any evidence for it.

    Ok Kevin while I’m laughing at the human rights argument, I saw some pretty funny legal arguments in play in moots and trial advocacy practice at uni in Law School, and I’ve seen one or two out there attempts in professional life but that argument takes the cake.
    But I’m in a really good mood I’ll play, just point out the posts that debunk my claims and I’ll go back to them, you don’t even need type them again. If indeed they do debunk my claims, I’ll post my acknowledgement of that just below. If they don’t it just give me a bigger smile, so no one loses.
    And for the record I pretty much would say very similar things about your attempted arguments and justifications, but I realise they are just your opinions and you are entitled both to any opinion you want and to maintain them and repeat them. Surprising how many people confuse opinions and facts.

    If my attempt to call the old system the disgrace it was was such a joke you would be able to refute it. Instead you’ve just acted like I’ve said the most shocking thing in history with eye-rolly rubbish along the lines of “wow just wow” (sorry if I haven’t capitalised the right Ws there) even while you’ve been dishing out your own extremely negative unsubstantiated attacks on all the experts who have helped improve our system. You are now again trying to substitute ridicule for argument, and that’s because you actually have nothing.

    While you are continuing to dish out unsubstantiated attacks, it is not my job to be your research assistant by reminding you of previous debates in the very recent past. If you don’t provide evidence you do not get to ask for it, and I will respond to you making unsubstantiated sweeping claims about experts by saying what I like about your output – the sole difference being that it will be true. People have read them and if they check the past debates they can see it’s as I’ve said. I have dealt with so much of it before, and while you keep making unsubstantiated attacks, it is not my job to refresh your memory of what are very recent discussions.

  23. The number of parties should decline over the next 2 Senate elections.

    There will be less incentive next time with the higher quota which will be with GTV being gone for the first time. This should discourage new party and cause a few existing parties drop out.

    Some of the others will probably try next time and then give up after that.

    If there is not marriage equality before the next election, there is a good change it will happen after the following election and so there will be no more single issue party for that issue.

  24. Kevin, I will reply to your post re: GVTs at length at a more human time 🙂

    Regarding the constitutionality of abolishing BTL voting, while I do not believe there has been a decision directly on this point, Day (the decision, not the Senator) seems to suggest it would be fine. At [48]-[49]:

    A vote marked above the line is as much a direct vote for individual candidates as a vote below the line. To number a square above the line identifies the candidates appearing beneath that square below the line. That much was made plain by the plaintiffs’ own examples of ballot papers completed above the line. An elector is provided with a direct choice. An elector who does not wish to use the above the line facility is able to vote by allocating preferences below the line.
    The term “directly chosen by the people” appearing in s 7 also appears in s 24 of the Constitution, which requires that the House of Representatives “shall be composed of members directly chosen by the people”. The requirement of direct choice excludes indirect choice by an electoral college or some other intermediary. That is not the case here.

  25. And Tom, Kevin, I can only share your hope that the number of parties decline. I have nothing against crossbenchers, especially now that they probably have more democratic legitimacy, but I think that many of those parties/groups never stood a chance…
    I think that with a more manageable ballot paper, and perhaps some other minor tweaks to the system (weighted inclusive Gregory? Fractional vote values? Shifting quota?) we would be getting very close to perfecting our system.

  26. Nothing in the part of the Day decision quoted in #277 establishes that abolishing BTL voting would be fine. 48 simply counters the arguments of Day that an above-the-line vote is not a vote for an individual (except derivatively) and hence is not a form of direct choosing. An ATL vote is a form of direct choice for the candidate who is first listed on a party ticket and a subsequent set of preferences.

    49 points out that direct choice is in opposition to delegated choice (for instance an Electoral College system), but does not state that avoiding delegated choice is the sole requirement for direct choice to occur. The issue is that if BTL is scrapped then it is impossible for voters to directly vote 1 for anyone who is not on top of a ticket to be a Senator.

    I suppose I should slap a token “arguably” in there somewhere because it has indeed never been ruled on explicitly by the full bench, but the belief that it is probably unconstitutional is a reason why trying to scrap BTL never gets very far.

    The relevant part of the Day case wasn’t about whether the Constitution requires BTL boxes (this wasn’t at issue), it was about whether the Constitution forbids ATL boxes.

  27. Ummm, Joe, those paras from the Day case include the following 2 sentences:

    An elector is provided with a direct choice. An elector who does not wish to use the above the line facility is able to vote by allocating preferences below the line.

    May qualify your conclusion a teeny bit.

  28. Re the hoped-for decline in micro – nay, nano – parties: As I said up thereaways (Wednesday, August 3, 2016 at 6:18 pm):

    And there may be less parties on the ticket as the micros fold or merge (or not, cos there’s no ego boost like being the leader of your own party – the big fish in a small pond thing.)

    I have known 2 micro-leaders personally and met 2 others briefly and I can tell you – they get a buzz out of it! And a feeling of justification – they are leading a campaign to right wrongs, make the world a better place, etc etc

  29. I agree with Kevin here; state-based nomination requirements are an obvious next step to fixing Senate voting, and closed-list voting is out of the question. Leaving aside the constitutional issues, it is another unacceptable restriction of voters’ choice.

    I also think party registration probably needs to be tightened as well, both by raising the number of members required (500 is way too small for national registration – maybe 500 per contested state might be better?) and by doing away with auto-registration for sitting members (possibly it might be retained for elected parties – i.e. if the DLP wins a Senate seat they don’t have to worry about registration requirements while that term lasts, but if their senator defects they can’t automatically register a new party).

  30. Thanks for your Excel Tables William (and KB as well). For those of us without time or skill to get the data sorted it is a great benefit. WB – you might check your Tables by summing the Table rows across the page – some parties (for the total vote page) end up with what look like figures which are too high?

    And summing the WA Table Total votes columns gives a a sort of collective figure for how many times each party get a 2-6 preference (but noting of course that getting 30% recognition for a major party preferences is a lot different form the same % of a micro party – maybe someone could do the calculations on this)

    The top 11 are Greens 1246, ALP 1192, Lib 1116, FF 883, ON 856, REP 825, HMP(SEX) 746, Nat 745, SFF 712, AJP 693 NXT 627. A few surprises there but perhaps indicative of my method? It doesn’t look right to have Greens and REP so high.

  31. REP got very high preference shares compared to their tiny primary vote in Tasmania too.

    Button is pressed in Queensland and One Nation have won two. LDP misses out.

  32. Kevin
    I think the number of parties seriously affects the way we vote and I somehow think we need to limit it. May be they could set a limit of say 15 tickets and 10 independents un-grouped. If more that the required number of parties nominate then in EACH state would need to get say 2000 supporting signatures (per candidate perhaps) before the name can go on the ballot paper.

    Alternatively you could perhaps just set a requirement that EVERY candidate must have say 0.1% of a the enrolled voters as signatories. This would mean that in Qld each candidate would need say 3,000 signatures for the first on the ticket and say 2,000 for each additional position. Any SERIOUS micro-party could achieve this will relative ease, but the pressure groups would be forced to join together and you would limit micro-party splits.

    If you assume that perhaps 1/3% of the actual first preferences for a party are prepared to be signatories, then to get on the ballot you would need to be the sort of party that can attract say 15,000 votes. This would still have left 17 parties in the election. However emerging parties with a real issue could still get a spot. It is better overall for democracy if representatives have a few issues to push in government, so the idea of joint tickets of like minded parties makes sense.

    I am not keen on single issue parties eg Marriage Equality or even Renewable Energy but would be happy to include loose coalitions of say “Progressives” which might include the Sex, Hemp, Euthanasia and Secularists and another Sustainability group who perhaps include the renewables and cyclists.

  33. QLD Senators elected:
    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)

  34. Wakefield: “It doesn’t look right to have Greens and REP so high.”
    Kevin: “REP got very high preference shares compared to their tiny primary vote in Tasmania too.”
    It’s the name. The concept. The anti-COAL vote.
    (And if people looked at the candidates’ bios, some of them are pretty impressive too – but I think it was just the name.)
    And 2 PHONs for Queensland – bugger!

  35. Actually I think more PHONs rather than LDP or “Christian” right wingers is fine – more trouble for PHON to hold them together al la Queensland in their “hay day”.

  36. You may well be right Wakefield. Though Pauline and the other Qld candidate may know each other better than in 1998 when all of the new MLAs were strangers to each other, with nothing in common but anger – against something or other.

    And as to Sprocket’s “The Rothschilds are about to be exposed”, they’ll probably be ranting to an empty chamber.

  37. So in the last Senate we had
    10 greens
    8 cross benchers, 5 of whom were fairly sane, 1 eccentric but not totally whacko and one who belongs with Corgi Bernadi. and one to the right of Attila the Hun on economic issues.

    Now we have
    9 greens
    11 cross benchers of whom 3 of whom were fairly sane, 2 eccentric but not totally whacko and one who belongs with Corgi Bernadi and one to the right of Attila the Hun on economic issues and 4 who may well be batshit crazy..

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