Federal preselection and electoral law developments

Federal preselection news from New South Wales, not all of it about the Liberals, plus plans to lower the voting age to 16 in the ACT and much else.

The mercurial Roy Morgan organisation put out a newsletter this week saying its fortnightly poll had Labor leading 56.5-43.5 and would be published in full within 48 hours, but nothing more was heard. However, there is no shortage of other electoral news to relate, even without getting too deep into the developing situation of the New South Wales Liberals’ federal preselection tangle, which was covered in depth here. Note that I also have a separate post dealing with the imminent Super Saturday of four New South Wales state by-elections.

• The Liberals in New South Wales have at least resolved their dispute to the extent of proceeding with plans for a preselection ballot for Bennelong, which David Crowe of The Age reports is likely to be held in March. The candidates are Gisele Kapterian, former chief-of-staff to Michaelia Cash and current executive at software company Salesforce; Craig Chung, a City of Sydney councillor; and Simon Kennedy, a former partner at McKinsey.

• Labor also has a few loose ends in New South Wales, having yet to choose candidates to succeed retiring members Sharon Bird and Julie Ovens in Cunningham and Parramatta. A membership ballot for Cunningham will be held on February 19 between Misha Zelinsky, Australian Workers Union assistant national secretary and former criminal defence lawyer, and Alison Byrnes-Scully, staffer to Sharon Bird (and wife of state Wollongong MP Paul Scully). Zelinsky has been in the news over social media posts and an e-book he co-authored nearly a decade ago which featured jokes denigrating women. The Guardian reports that Labor is struggling to find a candidate in Parramatta that the party hierarchy considers up to standard, having lately been rebuffed by Cameron Murphy, prominent barrister and son of Lionel Murphy.

• Northern Territory Senator Sam McMahon, a Country Liberals member who sat with the Nationals in Canberra, resigned from the party last week and is leaving open the possibility of contesting the election either for a different party or as an independent. McMahon lost her preselection last June to Alice Springs deputy mayor and conservative media identity Jacinta Price.

Noteworthy matters of electoral law and administration at state and territory level:

• A headache looms in South Australia ahead of its March 19 state election, with no contingency in place for voters put in COVID-19 isolation who are unable to meet the deadline for a postal vote application. A bill to allow for voting to be conducted over the phone in this circumstance was passed by the lower house and amended in the upper, and the lower house had not considered the amendments when it rose in early December. The Advertiser reports that Labor says it would be a simple matter for the house to reconvene and agree to the amended bill, but Premier Steven Marshall says there is not enough time to pass legislation before the government enters caretaker mode ahead of the election. Marshall blames Labor for supporting the amendments, but it appears to me that the government chose to sit on the bill for the last three days of the session.

• The Canberra Times reports Labor has “indicated a willingness” to support a Greens bill to make voting compulsory for 16 and 17 year olds in ACT elections, notwithstanding the local electoral commission’s evident horror at the resulting administrative burden.

Remy Varga of The Australian reports the Victorian government is taking a stand against the pernicious practice of political parties handling postal vote applications so they can harvest data from them.

Pearce off

Important Liberal preselections loom in Christian Porter’s seat and, by all accounts, Greg Hunt’s. Also: voter identification laws off the table for now.

A lot of news at the moment concerning matters pertinent to this blog, with Christian Porter announcing yesterday he will not contest the election, Greg Hunt universally expected to follow suit with today’s last parliamentary sitting day of the year, and voter identification legislation scuttled after a deal between government and opposition.

Annabel Hennessy of The West Australian reports a nominee has already come forward for Liberal preselection in Christian Porter’s loseable northern Perth seat of Pearce: Miquela Riley, a former naval officer and current PwC Australia manager who performed a thankless task as the party’s candidate for Fremantle at the March state election. Other potential nominees identified are Libby Lyons, former director of the Australian Government’s Workplace Gender Equality Agency, and Alyssa Hayden, who held the state seat of Darling Range from 2018 until her defeat in March and was earlier in the Legislative Council from 2009 to 2017.

• The most widely named successor to Greg Hunt as Liberal candidate for the Victorian seat of Flinders is Zoe McKenzie, an NBN Co director and former chief-of-staff to Abbott-Turnbull government Trade Minister Andrew Robb. The Age reports other potential starters are Mark Brudenell, chief-of-staff at Latitude Financial and former adviser to Malcolm Turnbull as both Communications Minister and Prime Minister, and Simon Breheny, former Institute of Public Affairs policy director.

• A deal between government and opposition has resulted in the abandonment of plans to introduce voter identification at the coming election. In exchange, Labor has agreed to support a bill that will halve the expenditure threshold at which third parties will have to file disclosure returns, over the objections of critics who argue the associated red tape will discourage charities from political campaigning. It appeared unlikely the voter identification bill would have gained the required votes in the Senate, with Jacqui Lambie having announced yesterday she would vote against it.

• Meanwhile, the Liberal Democrats are pursuing a High Court action against recently enacted legislation that will prevent parties other than the main ones having words like Liberal and Labor in their name. Absent a favourable outcome, this will presumably result in formal challenges against the Liberal Democrats and the New Liberals, the latter of whom have withdrawn their application to change their name simply to TNL.

Laying down the law

The latest on voter identification law and other electoral legislation, plus reams of federal preselection news.

This week should see the fortnightly federal voting intention poll from Roy Morgan, the regular fortnightly Essential Research poll which is scheduled to feature neither voting intention numbers nor leadership ratings, and possibly the more-or-less monthly Resolve Strategic poll from the Age/Herald. Until then:

Tom McIlroy of the Financial Review reports the Centre Alliance will push for an inquiry into the government’s voter identification bill when it comes before the Senate, to which it will presumably progress swiftly after coming before the House of Representatives today. Three further electoral bills come before the House on Tuesday: to reduce the thresholds beyond which those who spend money on their own election campaigning are required to lodge annual disclosures; to provide for measures deemed desirable under emergency conditions such as pandemics, including greater flexibility with postal and pre-poll voting; and to require security assessments and such like for the computer systems and software used to conduct the Senate count. Two notable bits of detail include bringing forward the deadline for receipt of postal vote applications from the Wednesday before the election to the Tuesday, and requiring the Australian Electoral Commission to publish the Senate vote data files within seven days of the return of the writs, having presumably been allowed to play it by ear in the past.

• A preselection vote on Saturday to determine the successor to Victorian Liberal Senator Scott Ryan, both in respect to the vacancy arising from his imminent retirement and the third position on the Coalition ticket at the election, was won by Greg Mirabella, Wangaratta farmer and husband of Sophie Mirabella. James Campbell of the Herald Sun reports Mirabella won the final round by 165 votes to 141 over Simon Frost, staffer to Josh Frydenberg and former state party director. Incumbent Sarah Henderson comfortably won the ballot for the top position, with the second reserved for Bridget Mackenzie of the Nationals. Other unsuccessful candidates were Emanuele Cicchiello, former Knox mayor and deputy principal at Lighthouse Christian College, and Ranjana Srivastava, an oncologist who also contested the preselection for Casey.

• A dispute within the New South Wales Liberal Party affecting preselections for Warringah, Hughes, Gilmore, Eden-Monaro, Dobell and Parramatta reached a new pitch at a meeting of its state executive on Friday night, which resolved to close nominations on December 3 with plebiscites likely to follow in February. However, James Massola of the Sydney Morning Herald reports the issue could be settled next week by a deal between Scott Morrison and Dominic Perrottet, potentially through the federal executive choosing candidates with plebiscites. Broadly speaking, the dispute pits centre right powerbroker Alex Hawke against the combined forces of the moderates and the hard right, with the former wanting candidates to be promptly installed by the state council and the latter wanting party plebiscites at the cost of delaying the process until February. One aspect of this is that Scott Morrison, who is close to Hawke, is backing state MPs (specifically Holsworthy MP Melanie Gibbons run in Hughes and Parramatta MP Geoff Lee’s for the federal seat of the same name) for preselection in federal seats while Dominic Perrottet, from the hard right, would sooner avoid the resulting state by-elections.

• Dominic Perrottet’s concerns apparently do not extend to the done deal of Bega MP Andrew Constance contesting preselection for Gilmore. However, Constance’s field of competition has now expanded to include Jemma Tribe, a charity operator and former Shoalhaven councillor, and Stephen Hayes, a former RAAF officer and staffer to Christopher Pyne. They join Shoalhaven Heads lawyer Paul Ell, who by all accounts has strong support in local branches, while Constance is favoured by Alex Hawke and the centre right.

• Sharon Bird, who has held the Illawarra seat of Cunningham for Labor since 2004, has announced she will retire at the election. With the seat seemingly the preserve of the Right faction, candidates to succeed her reportedly include Misha Zelinsky, Fulbright scholar and assistant national secretary of the Right faction Australian Workers Union, who aborted a planned challenge to Bird’s preselection before the 2016 election; Alison Byrnes, an adviser to Bird; and Tania Brown, Wollongong councillor and an administrator at the University of Wollongong.

• Labor’s candidate for north coast New South Wales seat of Page, which was held by Labor through the Rudd-Gillard period but now has a Nationals margin of 9.4%, is Patrick Deegan, who works for a domestic violence support service and also ran in 2019.

Resolve Strategic, Essential Research, Redbridge Group and voter ID laws

Three or four new sets of polling numbers, plus a late-term move by the government to grab the hot potato of voter identification.

The Age/Herald has published its latest monthly federal voting intention poll from Resolve Strategic, with better results for Labor than the last two: the Coalition is down two to 37%, Labor is up three to 34%, the Greens are up one to 11% and One Nation is down one to 3%. This comes out at roughly 51-49 in favour of Labor on 2019 election preferences. The breakdowns provided for the three largest states have it at about 50-50 in New South Wales and Queensland and 52-48 to Labor in Victoria. Scott Morrison’s personal ratings show a combined very good and good result of 47% (down two) and a combined poor and very poor result of 43% (down two), while Anthony Albanese is respectively on 30% (down one) and 41% (down five). Morrison’s lead as preferred prime minister is little changed at 44-26, compared with 45-26 last time.

Also out yesterday was the regular fortnightly Essential Research poll, which includes approval ratings for the state Premiers, based on small sub-samples from the relevant states – although these have been juiced up in this survey for Western Australia and South Australia. This provides the first numbers first published for Dominic Perrottet, at 47% approval and 28% disapproval from a sample of 352. Daniel Andrews is at 52% approval and 40% disapproval from a sample of 275; Annastacia Palaszczuk is at 66% approval and 27% disapproval from a sample of 217; Mark McGowan is at 82% approval and 13% disapproval from a sample of 441; and Steven Marshall is at 61% approval and 27% disapproval from a sample of 443.

The regular question on the federal government’s handling of COVID-19 records one-point increases in both the good and poor ratings, to 46% and 31% respectively. The good ratings for the state governments are 57% for New South Wales (up two), 43% for Victoria (down three), 59% for Queensland (down nine), 78% for Western Australia (down two) and 66% for South Australia (down one), from the same sample sizes as noted in the previous paragraph. The poll also records what is no doubt a pandemic-induced slump in the view that immigration is too high, at 37% compared with 56% in January 2019, although too low is only up from 12% to 16%. There are further questions on immigration, as well as climate policy, in the full release. The poll was conducted Wednesday to Sunday from a sample of 1781.

Also out recently are two localised polls from Redbridge Group, one targeting the Perth seat of Swan, which the Liberals hold on a post-redistribution margin of 3.2%. Consistent with other polling showing a swing to Labor approaching 10% in the state, the poll has Labor on 43% (33.2% in 2019), Liberal on 32% (44.7%), the Greens on 10% (12.3%), the United Australia Party on 6% (1.8%) and “a local independent” on 9%, if responses to a forced-response follow-up for the undecided are included. A very great deal of further detail from the poll is available in the full release, including state voting intention results that suggests Mark McGowan’s government is at least as popular now as when it annihiliated the opposition in March. The poll was conducted by automoted phone polling from October 9 to 12 from a sample of 814.

The other Redbridge poll targeted the three Sydney electorates of Banks, Lindsay and Macquarie, and it has the striking finding that the United Australia Party is on 19%, with Liberal on 32%, Labor on 31% and the Greens on 9%. The pollster reports this as converting to 53-47 to Labor, though I am unclear as to how this was determined as there does not appear to be a full release of results as there is with the Swan poll. The combined result in these seats at the 2019 election was Liberal 47.3%, Labor 36.8%, Greens 6.6% and United Australia Party 3.1%, with the Liberals on 53.7% and Labor on 46.3% two-party preferred.

The other big electoral story of the hour was yesterday’s revelation that the federal government will shortly introduce a voter identification bill to parliament, which has naturally caused the spectre of Republican-style voter suppression to be invoked. However, the bill seems to follow the model followed by the Newman government in Queensland at the 2015 election, which was promptly repealed by the new Labor government, and I have always been of the heretical view that this did little harm and perhaps even a degree of good with respect to public confidence.

According to The Guardian, acceptable forms of identification will include “passports, drivers licences, proof of age cards, and student cards, as well as government-issued documents including Medicare and pensioners cards, and recent documents from financial institutions and utility companies”. Furthermore, those without identification will still be able to cast a declaration vote, to be admitted to the count once it is established that the voter’s name has not already been marked off. Nonetheless, Antony Green notes that the relative ease with which this was administered in Queensland was aided by its lack of an upper house, whereas it is likely to mean delays in counting when two ballot papers are involved.

Both Labor and the Greens immediately announced their opposition to the bill. One Nation, however, will presumably be on board, having earlier introduced voter identification legislation of their own in response to delusions endemic on their end of the ideological spectrum. That means the government will need to win over one or more of Jacqui Lambie, Rex Patrick and Stirling Griff.

Western Australian Legislative Council reform plan announced

Western Australia’s Legislative Council set to lose its system of six six-member regions under a new proposal for one-vote one-value.

The Western Australian government has declared its hand on reform for the state’s Legislative Council, with the release today of the report of the Ministerial Expert Committee on Electoral Reform. It recommends abolishing the state’s system of six six-member regions and having the entire chamber elected at large, similar to the situation that applies in the New South Wales and South Australia, but without their staggered eight-year terms.

Whereas the system currently allocates half the members to the metropolitan area and half to the non-metropolitan area, despite the former claiming roughly three-quarters of the state’s population, the proposed reform offers “one-vote one-value”. It naturally does so at the expense of existing regional representation, and is sure to alienate country voters who were repeatedly told by Mark McGowan before the March election that such reform was “not on our agenda”.

With the government apparently also planning to increase the number of members from 36 to 37 (it doesn’t say this in the report, but Attorney-General John Quigley said this was the plan at his press conference today), this means the quota for election will be a mere 2.63%, compared with the 14.28% quota that applies under the existing system, as well as at half-Senate elections; the 7.69% quota that applies for the Senate at double dissolutions; the 4.54% quota in New South Wales has when electing half its 42 members of the Legislative Council; and the 8.33% quota in South Australia when electing half its chamber of 22.

However, the report also predictably recommends the abolition of group voting tickets, so we may at least be assured that parties elected on small vote shares will be the most popular of their kind and not simply beneficiaries of preference harvesting, as was notoriously the case with Wilson Tucker of the Daylight Saving Party, who won a seat in the Mining and Pastoral region at the March state election from 98 votes.

As was done in the Senate, this will be complemented by optional preferential voting, so that abolishing the group voting ticket option does not oblige voters to number ever box on what threatens to be a very large statewide ballot paper. Whereas the Senate ballot paper advises voters to number a minimum of either six boxes above the line or twelve below it, while actually allowing as few as one or six respectively to constitute a formal vote, the recommendation is to direct voters to number any number of boxes above the line or at least 20 below it.

To mitigate against the dramatic expansion that looms in the size of the ballot paper, there are recommendations that the hurdles should be raised for parties wishing to seek election: a $500 registration fee; a requirement that parties be registered for more than six months before the election; tightening the requirement that parties have at least 500 members by requiring that none of them be members of other registered parties; hiking the nomination fee from $250 per candidate to $1000; requiring 200 electors to nominate independent candidates; and requiring at least three candidates for above-the-line groups.

This must all now go through parliament, and while it is more than possible the details will be refined during the process, Labor’s massive parliamentary majorities ensure that it is unlikely to amount to much.

Legal matters

A look at a proposed electoral law overhaul that focuses largely on issues of specific concern to the Coalition.

The government introduced four electoral reform bills to parliament yesterday. Antony Green offers a good overview that notes what’s missing from the recommendations of the Joint Standing Committee on Electoral Matters’ inquiry into the 2019 election: the particularly contentions measures of voter identification and optional preferential voting, and arrangements for handling an election during the pandemic, which will presumably have to follow at a later time.

To summarise:

• The most striking is a bill to triple the number of members required of a registered political party to 1500 and to disallow the registration of parties whose names contain, with limited exceptions, words already used in the name of a pre-existing party. The former requirement does not affect the significant exception that exists for parties with seats in parliament, as applies to Katter’s Australian Party, the Centre Alliance and the Jacqui Lambie Network (Antony Green notes it also helped Fraser Anning’s Conservative National Party to both register and blag free ABC air time before the last election, not that this proved notably helpful to them). Parties will have three months after the passage of the bill to either pass muster or face deregistration, in which case they will not be identified on ballot papers or eligible for public funding. This would appear to be one in the eye for the Liberal Democrats, who this week confirmed Campbell Newman as their Senate candidate in Queensland.

• A bill encompassing “counting, scrutiny and operational efficiencies” gives effect to JSCEM’s recommendation that the pre-poll voting period should be cut from three weeks to two, which the Coalition, Labor and Greens members were all on board with. It also allows for pre-poll votes to be pre-processed in the two hours before polls close so the actual counting of the votes can begin without delay, which should address an issue of recent election nights in which election day booths are mostly in by 8pm but pre-poll voting centres often aren’t until 11pm to midnight. Similarly, the bill allows for postal votes to be pre-processed so more of them can be counted on Sunday.

• An “electoral offences and preventing multiple voting” bill includes a measure to prevent those suspected of multiple voting from persisting in doing so, and one to target behaviour the Liberal Party has complained of being subjected to by GetUp! activists, specifically “violence, obscene or discriminatory abuse, property damage and harassment or stalking”. Former electoral administrator Michael Maley wonders if the latter measure might capture heckling or asking difficult questions; electoral law expert Graham Orr notes it brings the activities of FriendlyJordies to mind.

• A bill to lower the threshold for which third parties campaigning at elections will have to register as political campaigners, requiring them to file annual financial disclosure returns. The current six-figure threshold does seem on the high side, but the cause of “public confidence in Australia’s political processes” would surely be better served by lowering the threshold for declaring donations to political parties.

Other news:

• The Australian Electoral Commission has published the full panoply of reports and data relevant to the now finalised federal redistributions of Victoria and Western Australia. Antony Green has worked his estimated margins into a finalised 2022 federal election pendulum.

• Rachel Siewert, Greens Senator for Western Australia, announced on social media this week that she will resign her position in the Senate next month. This will allow the party’s preselected lead Senate candidate, Dorinda Cox, to build her profile ahead of next year’s election, a common practice for the Greens.

Day in court

A bush lawyer’s guide to Family First Senator Bob Day’s High Court challenge to Senate electoral reform.

Family First Senator Bob Day’s legal challenge against reforms to the Senate electoral system reached the full bench of the High Court yesterday, which concluded by adjourning the hearing until tomorrow. Day’s case was advanced before the court by barrister, Peter King, who was the Liberal member for Wentworth before Malcolm Turnbull despatched him in a preselection challenge in 2004. King probably didn’t have the best day, having been admonished for failing to provide the court with the requisite three-page outline of his argument, and straining to have the points of his case understood by the assembled justices. You can view the transcript of yesterday’s proceedings here, both sides submissions to the court here, and my paywalled preview to the hearing in Crikey here.

The most promising lines of argument against the Senate electoral system run through the Constitution’s requirement that members of parliament be “directly chosen by the people”, which arguably mitigates having candidate ordering determined by the parties themselves, as is done for those who vote above-the-line. The obvious problem here is that this was even more true of the system that preceded the passage of the reforms in March, where that control extended beyond the party’s own candidates and ran the full gamut of the ballot paper. When this system was introduced in 1984, an independent candidate sought an injunction to prevent the election from proceeding, which was heard by the then Chief Justice, Harry Gibbs. Gibbs concurred that the Constitution required a candidate-based system, but put a spoke in Bob Day’s wheels by saying it was “not right to say that the Constitution forbids the use of a system which enables the elector to vote for the individual candidates by reference to a group or ticket”.

Of the various argument put forward by Day, only one carries the implication that the Senate system has been unconstitutional all along. This involves the use of the Droop quota, which requires that successful candidates receive a quota, either as first or subsequent preferences, equal to one divided by the number of seats up for election plus one (with a single extra vote on top to get them over the line). At a typical half-Senate election for six seats in a given state, this means the count progressively whittles the field down to a final seven candidates, each of whom essentially holds one-seventh of the overall vote. This includes six Senators who are elected, and a seventh who is left carrying a big swag of votes that were no use in getting anyone elected. It doesn’t need to be this way – the quota could simply be one divided the number of seats up for election without the plus one, which would mean one-sixth in the previous example rather than one-seventh. The count would end with six elected candidates, with no unlucky spare holding a “wastage quota”. Since the Droop quota has been in use since proportional representation was introduced in 1949, this is a pretty adventurous line of argument. It also invites the inference that a voter in the lower house is disenfranchised merely if he or she votes for the losing candidate.

The other lines of argument avoid the implication that the system has been unconstitutional for years, by identifying new changes that transgress in ways the previous system did not. First, there is the argument that the changes introduce a second method of choosing Senators, contrary to the provision of Section 9 of the Constitution that parliament is empowered to “make laws prescribing the method of choosing senators” — with emphasis on the singular. Under group ticket voting, the argument goes, above and below-the-line voting were different in form but not content, since both were treated as completed ballot papers so far as the count was confirmed. But with the savings provisions under the new system, a voter can number one box above the line, but has to number at least six below it. Unlike the old system, this means one can now vote above-the-line in a way that could not be replicated below-the-line. Among the ripostes that might be made to this is that the old system had a savings provision too, in that below-the-line votes with a small number of mistakes were still included in the count, and this too introduced a subtle discrepancy between what could be done above and below the line.

Another argument is that the newly proposed ballot paper violates the principle of a “free and informed vote”, which was invoked by the High Court in its findings that a constitutional protection existed for freedom of political communication. This is said to be violated by the incorrect instructions to be offered by the new ballot paper, which will tell voters to number at least six numbers above the line or at least twelve below it. In fact, the previously noted “savings provisions” will allow ballots with as few as one box numbered above-the-line or six below it to be admitted into the count. It is argued that this is in breach of Section 239 of the Commonwealth Electoral Act, which makes it an offence to “mislead or deceive an elector in relation to the casting of a vote”. Finally, it is argued that the optional preferential system impermissibly reduces the value of votes that drop out of the count due to incomplete numbering. This one is particularly dubious, as it would seem to invalidate any first-past-the-post or optional preferential regime, which self-evidently is not what the drafters of the Constitution had in mind.

We have ways of making you preference

A major tactical victory for the minority Labor government in Queensland, which has succeeded in tacking a return to compulsory preferential voting on to an Opposition-backed bill to increase the size of parliament.

In a remarkable development, Queensland’s parliament has legislated for the reintroduction of compulsory preferential voting, putting an end to an optional preferential voting regime that was introduced by Wayne Goss’s Labor government in 1992. This arises from a bill that was introduced to increase the size of parliament by four seats, which the Liberal National Party opposition pursued to win favour with the four cross-benchers who hold the balance of power. Each represents a seat in north Queensland – the two ex-Labor members, Billy Gordon (Cook) and Rob Pyne (Cairns), and the two Katter’s Australian Party members, Rob Katter (Mount Isa) and Shane Knuth (Dalrymple) – and supported the enlargement due to their concerns about regional representation. However, Labor has spectacularly turned the tables on the LNP by successfully moving an amendment to also revert to compulsory preferential voting. This leaves New South Wales as the only state with optional preferential, although it will also be introduced at the Northern Territory election in August. In the immediate future, this is sure to be a boon to Labor, who should now receive at least three-quarters of Greens preferences, as they do elsewhere. It will also make life a lot easier for opinion pollsters, who have faced the problem of how to convert primary votes to two-party preferred in a system where the option to exhaust has made voter behaviour highly volatile. Galaxy’s recent results have been based on an average of preference flows from the last three elections, which most recently produced a result of 51-49 to the LNP. However, that would probably have come out at 50-50 under the safer assumptions entailed by compulsory preferential voting.