Matters for judgment

Ahead of potentially decisive High Court hearings next week, another trip down the Western Australian Senate election rabbit hole.

The High Court will conduct a hearing next Wednesday and Thursday to consider three questions central to the Western Australian Senate debacle, which could offer considerably greater clarity as to whether a fresh election will be held. The court has also treated us to a document dump on its website, including submissions from the Australian Electoral Commission and each of the concerned parties (Liberal, Labor, Palmer, Greens and Sports).

The AEC is very keen on a fresh election, which appears to be driving a lot of commentary to the effect that such an outcome is a foregone conclusion. But for what little my bush lawyer’s perspective is worth, its arguments strike me as rather pedantic, and given the extreme nature of the relief being sought, the odds on the court reaching an alternative conclusion aren’t quite as long as many seem to think.

First, a quick refresher. The original count saw the first four seats go three-Liberal and one-Labor, with the last two going to Louise Pratt of Labor and Dio Wang of the Palmer United Party. Key to the result was that the Shooters & Fishers party candidate finished 14 votes ahead of the Australian Christians candidate at what proved to be the decisive point in the count. Had it been otherwise, the seats would have gone to Scott Ludlam of the Greens and Wayne Dropulich of the Australian Sports Party, who sought and were duly granted a recount.

It was during the recount process that the 1370 ballots went missing. Absent those votes, along with the correction of various discrepancies which were showed up by the recount, the Australian Christians finished 12 votes ahead and the last two seats flipped over. However, since it was known which polling booths the votes had gone missing from, it was possible to ascertain that their inclusion would have seen the Shooters & Fishers finish a grand total of one vote ahead, assuming the votes from those booths had been counted correctly the first time around.

One of the two big questions at stake is whether it is permissible for the court to be guided in any way by what might have happened if the votes had not gone missing, based on what is known from the original count. The other is whether the court should proceed in revisiting 949 ballot papers which were the subject of scrutineers disputes during the recount and which could, on some constructions, widen the Shooters & Fishers margin over the Australian Christians to the extent that the missing ballot papers will no longer be decisive.

The Australian Electoral Commission is emphatically of the view that the answer to the first question is no; that this renders the second consideration redundant; and that the only thing for it is a fresh election. That would also seem to be the position of the Greens, whose petition was rejected by the court yesterday on the basis that it did not in fact challenge the result. However, since the main thrust of its argument is that a new election should be held if Ludlam’s win is overturned, the AEC petition very much does its work for it. Having fluked their way to a win on preferences in the recount, the Australian Sports Party is less keen on a fresh election. As best as I can tell from a quick reading, their petition advocates the re-examination of the 949 disputed ballots, while proposing legalistic objections to the election being declared void in any case.

On the other side of the ledger of self-interest, Labor’s position is that it could live with a fresh election, as it is evidently confident of winning a second seat at a re-match. However, its favoured course of action is to review the 949 contested votes, which it believes should increase the Shooters & Fishers total by 87 and reduce that of the Australian Christians by 90 (though the Greens have other ideas about this). Since the results of the first count indicated that only 23 of the missing 1370 votes were relevant to the question of who finished ahead out of Shooters & Fishers and Australian Christians, this would leave it open to the court to declare Pratt and Wang elected on the basis that the missing votes did not affect the result.

The Palmer United Party submission reflects Labor’s except to the extent that it a) only wants 56 votes added to the Shooters & Fishers tally and 18 removed from Australian Christians, and b) doesn’t seek a voided election as an alternative to its preferred outcome. Also in the no-election camp is the Liberal Party, which elected three Senators the first time around and has nothing to gain from a re-match that could potentially reduce it to two. While the Liberals are undoubtedly backing the horse of self-interest, their arguments strike me as highly persuasive.

To deal with the three legal points at issue in turn:

Were those who cast the infamous missing 1370 ballots “prevented from voting”?

Section 365 of the Commonwealth Electoral Act states that official error is only to cause an election to be voided if it affects the result, and that the court is not to decide whether this is so based on evidence of how anyone would have voted had such error not deprived them of a chance to vote. This goes back to a 1919 ruling which overturned a one-vote victory in the seat of Ballarat on the basis that a handful of people had been wrongly prevented from voting, with the court hearing evidence from affected voters that they had planned to vote for the losing candidate. The parliament of the time decided this didn’t sit well with the secrecy of the ballot, and accordingly passed what now stands as section 365.

The view of the AEC, together with the Greens, is that those whose ballots went missing during the Senate recount were indeed “prevented from voting”. However, it is the shared view at least of Labor and the Liberals that voting and having one’s vote entered into the scrutiny are two different things, dealt with in different parts of the act with different purposes in mind. The significance of which emerges in relation to the second point at issue:

Is there anything to stop the court considering the result from the first count in determining whether the missing votes would have affected the result?

The answer from the AEC is an emphatic yes: since the voters whose ballots were lost were “prevented from voting”, booth results from the first count amount to precisely what section 365 prohibits: “evidence of the way in which the elector intended to vote”. But as well as arguing that the voters in question were not indeed “prevented from voting”, the Liberals argue that the purpose of section 365 is merely to protect the secrecy of the ballot, which is not an issue with the first count vote totals. Other operative sections grant the court considerable latitude to reach decisions on grounds it thinks “just and sufficient”, and the Liberals argue results from the first count are an entirely valid way of reaching such a determination.

Can or should the court revisit the 949 disputed votes from the recount?

All of which still leaves the very big headache that patching up the recount results with missing vote tallies from the first count causes the issue to be decided by one solitary vote. A possible but by no means definite way out of this dilemma is provided by the 949 contested votes that were reserved for the judgement of the state electoral officer during the recount, which the court has the power to revisit. One precedent for it doing so was when Labor challenged Fran Bailey’s 12-vote win in the Victorian seat of McEwen at the 2007 federal election. The matter was handballed to the Federal Court which reached individual determinations on 643 ballot papers, every one of which is detailed in the published judgement. Significantly, this didn’t go according to Labor’s plan: rather than overturn Bailey’s win, the sum impact of the court’s decisions was to increase her margin to 27.

The position of the AEC is that such scrutiny will on no account be required, as there is no possibility of the final margin being greater than the 1370 missing ballots, with the court obliged to avoid making any assumptions at all about what those votes might have looked like. Labor and PUP, as noted, want the votes revisited by the court, which would otherwise not be able to declare the result in their favour with confidence. The Liberals nonetheless argue that this isn’t necessary – considering the results of the original count, they say, provides sufficient basis for the court to declare Pratt and Wang the winners of the final seats, as that is how the AEC would have proceeded if the votes hadn’t gone missing.

Final score: 53.49-46.51 to Coalition

Definitive election results from the Australian Electoral Commission bring us the long-awaited national two-party preferred result, and details of minor party preference flows.

The Australian Electoral Commission finally lifted the lid on the completed federal election count yesterday, the detail we’ve all been waiting for being the final national two-party preferred result: 53.49-46.51 to the Coalition. That makes it the Coalition’s seventh best result since 1949, after 1966, 1975, 1977, 1955, 1958 and 1996, and better than any achieved since 1943 by Labor, whose modern high-water mark was Bob Hawke’s 53.23-46.77 victory in 1983. Labor nonetheless managed slender wins in the two-party vote race in Victoria (50.2%) and Tasmania (51.2%), with Western Australia remaining its worst state (41.72%).

No less interesting is the data on minor parties’ preference splits between Labor and the Coalition, confirming a significant increase in the share of preferences received by Labor compared with 2010. Labor’s share of Greens preferences was 83.03%, which compares with 80.78% in 2004, 79.69% in 2007 and 78.84% in 2010. My best guess here is that the Greens tended to lose votes from those driven by anti-major party sentiment, perhaps because of the closeness of their association with the government, leaving behind a more ideological voter base with a particular hostility to Tony Abbott.

Labor received 46.33% of Palmer United Party preferences, nearly identical to the overall “others” result of 46.69%. The latter was also the best for Labor since such figures were first published in 2004, recovering from a low of 41.74% in 2010. One consequence of this was that pollsters’ preference models based on 2010 election results overstated the Coalition on two-party preferred. Had preferences been as they were in 2010, the Coalition would have scored an extra 1% and a few more seats.

Courting trouble

The WA Senate election gets murkier still, with the two winners originally declared on the basis of a 14-vote difference junked in favour of two other winners declared on the basis of a 12-vote difference. With over 1000 votes known to be missing, it’s likely to be a case of see you in court, and then back on the hustings.

Update (Saturday 11pm)

Two number-crunchers out in web-land have made the effort to identify which votes have gone missing by comparing booth results from the first and second counts, and they have reached the same conclusion: but for the missing votes, the result at the decisive point in the count would have been very close to a tie. One is Ben Raue at the Tally Room, while the other is an anonymous commenter on a pseudonymous blog – that of Truth Seeker, whose statistical work on the Senate count process has won great acclaim. Despite the obscurity of the latter source, he or she is clearly well on top of the situation.

It is clear that what has gone missing is bundles of votes for particular parties, the numbers of which can be determined with considerable precision despite the minor adjustments to the vote totals which legitimately resulted from the recount process. I will now deal with the four booths in turn, using the numbers determined by Anonymous. Keep in mind that the only votes with the capacity to change the result are those cast for Shooters & Fishers, Australian Christians or the smaller micro-parties which fed them preferences: Australian Independents and the Fishing & Lifestyle Party in the former case, No Carbon Tax Climate Sceptics in the latter.

Mount Helena: This booth produced the most important discrepancy with the disappearance of its complement of above-the-line votes for Shooters & Fishers, of which there were 14. Also gone are the Liberals’ tally of 370 above-the-line votes, together with nine for Animal Justice.

Wundowie: Together with its 29 informal votes, the above-the-line votes of nine different parties have disappeared from this booth. Those relevant to the result are three votes for Australian Christians and one each for No Carbon Tax and Australian Independents. Also gone: 166 Liberal, 164 Labor, eight Smokers Rights, seven Help End Marijuana Prohibition, five Wikileaks, and one Katter’s Australian Party.

Bunbury East: The 152 votes missing from this booth appear to be the above-the-line votes for nine parties, the only ones relevant to the result being three for Australian Independents and one for No Carbon Tax Climate Sceptics. The others were 112 votes for the Greens, 12 for Animal Justice, 11 for Family First, six for Wikileaks, three for Stop the Greens, two for Katter’s Australian Party and one for the Secular Party, together with 77 of the 81 informal votes cast at the booth.

Henley Brook: This one was straightforward and, ultimately, not important: 349 Liberal above-the-line votes are missing, leaving 286 still in the count.

Tallying that up suggests Shooters & Fishers have lost 18 votes and Australian Christians five. Ben Raue’s calculation is very slightly different at nineteen and four, as he counts a missing Australian Fishing & Lifestyle Party vote and has one less vote missing for Australian Christians, which Anonymous thinks likely to have been genuine recount corrections. Either way, the numbers suggest that reverting to the first-count results for these booths, as I have been advocating, would cause the result to flip back to Louise Pratt and Dio Wang based on the smallest margins imaginable – one vote by Anonymous’s reckoning, and three by Ben Raue’s.

Original post

For the vast civilian majority in Western Australia that would sooner not have to vote again, today’s conclusion of the Senate election recount has delivered the worst possible outcome, with the original result overturned by an excruciatingly narrow margin. On the basis of the unquestionably flawed and incomplete recount, Greens Senator Scott Ludlam and Australian Sports Party candidate Wayne Dropulich will be declared the winners in place of Labor Senator Louise Pratt and Palmer United Party candidate Dio Wang.

The key to the result remains the point at which the lead candidates of either Shooters & Fishers or the Australian Christians are excluded. If it’s the former, Shooters & Fishers preferences sustain Dropulich at a point in the count where he would otherwise be excluded, ultimately allowing him to finish ahead of Wang off the base of a tiny primary vote after harvesting preferences left, right and centre. Wang’s preferences then flow to Ludlam, giving him victory ahead of Pratt. But if Shooters & Fishers stay in the count, Dropulich is unable to overtake them, a point arrives where he is excluded, and Shooters & Fishers themselves are ultimately unable to get ahead of Wang, who wins a seat when the various micro-party preferences are distributed. With Wang’s votes used to get himself elected, his exclusion does not provide Ludlam with the mass transfer of preferences he needs, causing him to be left holding the bag with Pratt’s election to the final seat.

In the original count, Count 139 famously delivered a 14-vote victory to the Shooters & Fishers candidate with the following numbers:

BOW (Shooters & Fishers) 23,515
VAN BURGEL (Australian Christians) 23,501

However, the recount has turned this into a 12-vote lead for Australian Christians at what’s now Count 141:

VAN BURGEL (Australian Christians) 23,526
BOW (Shooters & Fishers) 23,514

But of course, the latter result excludes the famous 1255 missing above-the-line votes, which were cast at the Bunbury East, Mount Helena, Henley Brook and Wundowie booths.

If I had anything to do with the matter, I’d be very determined to craft an outcome that didn’t require a fresh election, which will have a disastrous impact on the public’s confidence in the system. The best chance of avoiding that would have been for the recount to have reaffirmed the original result, which might have given the High Court the confidence to determine that the recount should stand, warts and all. However, that’s gone out the door now that counts have produced different results with respect to not one but two seats.

The other chance of an out involved the requirement that a discrepancy be big enough to be decisive before it can be used as a basis for overturning a result. Under happier circumstances, the availability of first count results from the four affected booths might have served as evidence that this wasn’t so. While 1255 votes sounds like a lot in the context of the margins under discussion, it must be kept in mind that the only votes which actually have the potential to affect the result are those cast either for Shooters & Fishers, Australian Christians or other micro-parties which fed them preferences (remembering we’re only dealing with predictable above-the-line votes here – below-the-line votes were not included in the recount process, presumably on the basis that they were thoroughly scrutineered during the data entry process). Those parties are the Australian Fishing & Lifestyle Party and Australian Voice in the case of Shooters & Fishers, and the Rise Up Australia Party in the case of Australian Christians. Based on the published results for the first count, the four polling booths at issue delivered 61 votes to the Shooters & Fishers and 60 votes to Australian Christians (UPDATE: The previous two sentences are not quite right – see the update at the top of the post for a more accurate account). However, it’s not enough simply to add those votes to the existing totals and achieve a hypothetical result, as not all of the votes from the four affected polling booths went missing. In short, the situation appears far too unclear to say that the missing votes could not have affected the result, given the narrowness of the margin involved.

My own preferred solution, which I advocated in an article for Crikey yesterday, was for the High Court to direct the Australian Electoral Commission to use the first count results from the four affected polling booths and the recount results from everywhere else. I wouldn’t presume to say that there are no legal difficulties involved in this, but it would appear to me to pass the common sense test. Given that the number of missing votes on which the result might hinge is around 120, and the likelihood that these particular votes were counted more-or-less correctly the first time around, it could have been hoped that the margin at the key point in the recount would have been big enough to allow such a result to proceed with an adequate level of confidence. But with just 12 votes in it, that becomes a lot harder to do.

Where we at

Those Fairfax and WA Senate recounts are finally set to reach their conclusions over the coming days. That may not be the end of it though …

Update (Thursday 6pm):

The contents of the post below, written overnight, have been dramatically superseded by today’s events. Firstly and most straightforwardly, Clive Palmer has been declared the winner in Fairfax by 53 votes. Secondly and more dramatically, the Australian Electoral Commission has made the bombshell announcement that 1375 verified votes from the original count, including 1255 above-the-line and 120 informal votes, have gone missing during the recount process. The AEC will proceed with a declaration tomorrow, but the initial balance of opinion among noted authorities (by which I so far mean Antony Green and Nick Minchin) appears to be that this will be the subject of a successful legal challenge that will cause the result to be declared void, resulting in the entire state of Western Australia going back to the polls.

The legal issues involved in this are beyond my pay grade (paging Graeme Orr and Antony Green), but I am aware of two precedents worth examining:

• On February 15, 1908, a “special election” was held in South Australia to resolve a protracted dispute over the result of the election of December 12, 1906. The Senate election system at this time simply involved voters crossing boxes of three candidates (in the case of a half-Senate election), with the elected members being those to receive the most votes. Naturally enough, most voters voted for the three candidates of their favoured party. Support in South Australia being evenly balanced between Labor and “Anti-Socialist” (hitherto identified as “Free Trade”), this resulted in six candidates receiving very similar shares of the vote. Anti-Socialist Sir Josiah Symon and Labor’s William Russell emerged slightly ahead of the field and were clearly elected, but very little separated another Anti-Socialist candidate, Joseph Vardon, and two Labor candidates, D.A. Crosby and Reginald Blundell. The Court of Disputed Returns resolved that Vardon was the winner by two votes, but that it would have gone differently had it not been for the failure of a returning officer to initial ballot papers. The result with respect to Vardon was consequently declared void.

There followed a dispute as to whether this constituted a casual vacancy to be filled by the state parliament, which the Labor-controlled parliament of South Australia sought to do by selecting one of its own, James O’Loughlin. This was challenged by Vardon in the High Court, which determined that under the legislation existing at the time it was up to the Senate itself to decide if a vacancy existed. A bill was then passed to have this particular matter and all future recurrences referred to the High Court, which concurred with Vardon that a casual vacancy did not apply with respect to a void election result, and that a fresh election had to be held specifically with respect to the third seat. This was duly held with Vardon and O’Loughlin as the only candidates, with Vardon emerging the winner by 41,443 votes to 35,779 (source: Psephos).

So while there is certainly a precedent for an entire state to go back to the polls for a Senate election, it was conducted in the context of an entirely different electoral system. Presumably a new election would have to be for all six seats, and not simply a partial election as was held in 1908. The Vardon matter also involved the question of casual vacancies, which does not apply here – in Vardon’s case, the result was declared void after his term had begun, whereas the term for this election does not begin until the middle of next year.

• The other precedent which springs to mind for a re-staging of a multi-member election was that which followed the state election in Tasmania in 1979. Under its Hare-Clark system, each of Tasmania’s five electorates returned seven members (now five). The result for Denison in 1979, which returned four Labor and three Liberal members, was declared void because three of those elected were found to have exceeded statutory limits on campaign spending. This caused a new election for Denison to be held on February 16, 1980, this time resulting in Labor losing one of its four seats to Norm Sanders of the Australian Democrats.

Original post:

That election we had a while back is still in a sense not over, with recounts continuing for Fairfax and the Western Australian Senate. While these recounts are shortly to conclude, there is unfortunately a fairly big chance that the next stop will be the courts.

• The WA Senate recount was, last I heard, scheduled to be concluded either tomorrow or on Monday. The recount could potentially overturn the election of Labor’s Louise Pratt and the Palmer United Party’s Dio Wang in favour of Scott Ludlam of the Greens and Wayne Dropulich of the Australian Sports Party if it closes a 14-vote gap between Shooters and Fishers and Australian Christians at an early point in the count (although Labor reportedly plans a legal challenge if this occurs). Rechecking of over a million above-the-line votes has inevitably turned up anomalies, most notably a bundle of several hundred votes that were wrongly assigned to the informal pile, eliciting a predictably hyperbolic response from Clive Palmer. It should be observed that such votes will only have the potential to change the result if they affect the vote totals for Shooters and Fishers and Australian Christians, which applies only to votes cast for those parties or those which fed them preferences (No Carbon Tax Climate Sceptics in the case of Australian Christians, Australian Voice, Australian Independents and Australian Fishing and Lifestyle Party in the case of Shooters and Fishers) – about 3.6% of the total. UPDATE: Oh dear – the AEC reports “a serious administrative issue” in which 1375 verified votes from the original count, including 1255 above-the-line and 120 informal votes, have gone missing. Nick Minchin, who had ministerial oversight over electoral matters during the Howard years, suggests the entire election may have to be held again.

• The Fairfax recount grinds on even more laboriously, owing to the Clive Palmer camp’s tactic of challenging literally every vote that goes against them, requiring them to be sent to the state’s chief electoral officer for determination. The tactic seems to have worked, because the recount process has seen Palmer’s lead steadily inflate from seven to 58. The ABC reports the recount should be concluded either by tomorrow or early next week. However, the Liberal National Party is reportedly set to launch a legal challenge against the result which, if the experience of the Victorian seat of McEwen at the 2007 election is anything to go by, will result in the Federal Court reaching determinations of its own on the status of disputed ballot papers.

• Meanwhile, Kevin Bonham comprehensively catalogues points at issue in the Senate electoral system and the relative merits of proposed solutions, and a piece from Antony Green on the South Australian Legislative Council system also has a lot to say about the Senate.

Counts and recounts

The Labor leadership contest is approaching the end game, which is more than can be said for the election counts for Fairfax and the WA Senate.

Developments of various kinds in the field of vote-counting:

• Labor’s month-long leadership election campaign is finally drawing to a close, with caucus having determined its 50% share of the total vote yesterday and around 25,000 rank-and-file ballots to be counted on Sunday. Reports suggest that Bill Shorten has won at least 50 out of the 86 votes in the party room, receiving the undivided support of a Right which had been polarised during the Gillard-Rudd stand-off. By contrast, David Crowe of The Australian reports that Left members including Warren Snowdon, Brendan O’Connor, Kate Lundy, Laurie Ferguson, Maria Vamvakinou, Julie Owens and newly elected Bendigo MP Lisa Chesters have failed to fall in behind Albanese. Tea-leaf reading from party sources quoted around the place suggests Bill Shorten will do best if a large number of votes are received from his relatively strong states of Victoria and Western Australia, with most other states (together with the ACT, which punches above its weight in terms of ALP membership) considered strongholds for Albanese.

ReachTEL published a poll yesterday of 891 respondents in New South Wales and Victoria showing Anthony Albanese favoured over Shorten by 60.9-39.1 in New South Wales and 54.0-46.0 in Victoria. Each had slight leads over Tony Abbott as preferred prime minister in Victoria and slight deficits in New South Wales. Results on voting intention confirmed the general impression from the limited national polling in finding no honeymoon bounce for the new government.

• Electoral Commissioner Ed Killesteyn has ordered a recount of above-the-line votes for the Western Australian Senate, which will change the result of two Senate seats if a 14-vote gap between the Shooters and Fishers and Australian Christians parties is reversed. Also under review are votes declared informal the first time around, which is always a grey area. Tireless anonymous blogger TruthSeeker has performed good work in identifying count peculiarities potentially significant enough to turn the result, including a popular favourite known as the “Waggrakine discrepancy”.

• The Fairfax recount limps with the Clive Palmer camp apparently challenging any vote that doesn’t go its way, thereby requiring it to be sent for determination by the state electoral officer in Brisbane. AAP reports the result “won’t be known for at least another week”.

UPDATE: GhostWhoVotes relates that ReachTEL has let rip with its first post-election poll of national voting intention, and it continues an unbroken run of such polling in plotting a position for the Coalition south of what it achieved at the election, however slightly. Coming off a large-even-for-ReachTEL sample of 3600, it shows the Coalition with a two-party preferred lead of 52.1-47.9, compared with roughly 53.5-46.5 at the election, from primary votes of 45.4% for the Coalition (45.6% at the election), 35.3% for Labor (33.4%) and 8.6% for the Greens (unchanged). Tony Abbott’s performance is rated good by 40.5% and poor by 40.2%.

Senate fact-checking and myth-busting

The Western Australian and South Australian Senate results under the microscope: which preference decisions mattered, and which didn’t.

In a Senate election that has excited more interest than most, there has been a lot of understandably confused talk over the past few days about the impact of contentious preference decisions. What follows is an attempt to sort through some of them claims which have gained currency around the place.

Claim: Wikileaks preferences cost Scott Ludlam his seat.

Julian Assange has had no more stout defender over the past few years than WA Greens Senator Scott Ludlam, so his party’s failure to fast-track preferences to Ludlam provoked a furious response from many, not least his own mother. Most offensive to left sentiment was the decision to place Ludlam behind David Wirrpunda of the Nationals, which the party justified as supporting Aboriginal representation. When news came through that Ludlam had indeed fallen short (pending of course a possible recount), many on social media jumped to the conclusion that Wikileaks was to blame.

However, the potential of Wikileaks preferences to harm Ludlam actually went unrealised. Wikileaks preferences did flow to the Australian Sports Party and the Nationals in turn, but both were eliminated fairly early in the count. Since Ludlam had a higher placing from Wikileaks than the other late count survivors, namely the two major parties, the Palmer United Party and Shooters and Fishers, he did in fact get their votes – 8150 of them, which in the final analysis still left him 3372 short of Louise Pratt.

Claim: Wikileaks vote-splitting cost Scott Ludlam his seat.

Absent the opportunity to blame Wikileaks for their preferences, some of the party’s critics fell back on the argument that it damaged Ludlam by fielding a candidate at all. One such was Mary Kostakidis, who like many expressed her displeasure on Twitter. This would have been a telling point under first-past-the-post, but it doesn’t work so well under compulsory preferential voting, where every vote of an excluded candidate ends up with somebody else – in this case, as noted, the Greens. If anything, Wikileaks’ entry might have helped deliver the Greens preferences from libertarians who would never have voted for them directly, although I doubt there would have been much in this. It could be argued that the absence of a Wikileaks candidate might have given Ludlam’s campaign clearer air, but I doubt there’d be much in that either.

Claim: Greens preferences elected Family First in South Australia.

Confronted with the allegation that her party’s preferences were responsible for electing Bob Day of their ideological enemy Family First yesterday, Sarah Hanson-Young tweeted: “Actually SA Greens preferences went to Xenophon & Labor well ahead of both FF & Liberals”. Either the Senator was not entirely on top of her own preference ticket, or she was being exquisitely disingenuous – perhaps the former, given that her tweet was deleted shortly thereafter. It was indeed true that Xenophon himself was rated much higher than Family First on the Greens’ preference ticket, but as Xenophon had no trouble getting elected off his own bat, that was beside the point. The issue was Xenophon’s running mate Stirling Griff, who did spectacularly badly on preferences from all fronts. Whereas Xenophon was given a solid but ultimately irrelevant position a third of the way down the Greens’ preference order, Griff was buried deep below. As it happened though, the 11,065 Greens ticket votes delivered to Day after Hanson-Young’s election were surplus to requirements: he would still have been 21,257 clear of a quota without them. So the Greens did not of themselves elect Family First, though it wasn’t for want of trying.

Claim: Labor preferences elected Family First in South Australia.

By contrast, Bob Day would never have made it had not Labor also opted to put him ahead of Stirling Griff. This might inspire comparison with Labor’s preference decision in Victoria in 2004 which gave Steve Fielding his seat at the expense of the Greens, but on this occasion Labor had the Greens second. The decisive factor was actually the transfer of Sarah Hanson-Young’s surplus, which was bloated with the Labor preferences received when Don Farrell was eliminated. This amounted to 41,501 Labor ticket votes which would have elected Griff had they been directed to him instead.

The wonks among you might like to observe that this is an uncommonly severe case of the distortion caused by the “inclusive Gregory” method of calculating transfer values when distributing surpluses. In theory, those Labor votes shouldn’t have been worth so much since they have already been used to help elect Penny Wong. However, the existing system only applies one transfer value to all votes in a given surplus distribution. If votes were reduced in value in due proportion each time they formed part of a surplus transfer (the “weighted inclusive Gregory” method), the Hanson-Young transfer would have contained 23,390 Labor and 18,214 Greens ticket votes, rather than 41,501 and 11,065. In that case, Labor preferences of themselves would not have been decisive.

The value of Labor votes was again inflated when Bob Day’s surplus was distributed, at which point Labor’s remarkable decision to place Griff behind even the Liberals kicked in. This wasn’t decisive, but it might have been if the gap between Simon Birmingham and Griff had been a little narrower. Another factor to be kept in mind here is that Labor got a bigger bang for its buck out of its preference ticket decisions, since 90.8% of its votes were above-the-line against only 81.4% for the Greens.

Claim: Nick Xenophon started it by shafting the Greens.

The Greens’ motivation to punish Nick Xenophon even to the point of aiding Family First was his own decision to preference the major parties ahead of the Greens. Hanson-Young was heard to complain that Xenophon was “making a political decision, just like any other politician”. However, it seems to me that Xenophon is the only party in all this who was doing just the opposite, his preference tickets appearing at least outwardly to be all principle and no expediency.

The Senate ticket voting system allows groups to have up to three preference tickets for their above-the-line votes to divide evenly between. Xenophon used this to play the straightest possible ideological bat by having one ticket that looked how a moderate left supporter might want it to look, and another pleasing from the perspective of a voter of the moderate right. This meant one of his tickets did in fact have the Greens ahead of the Coalition parties, while the other had them behind both the Coalition and Labor. So the Greens might in fact have received half of Xenophon’s preferences, had those preferences been distributed at a point where there was no Labor candidate in the count. In the event, Xenophon preferences were not distributed at all, as Stirling Griff was left holding the bag when Simon Birmingham was elected at the final count.

The Greens’ sense of grievance that Xenophon’s idea of moderate tickets should place them behind Labor is no doubt informed by the fact that he played it differently at his first Senate election in 2007. Xenophon’s idea of ideological balance at that time was to have a single preference tickets which placed the competitive minor parties of both right (Family First) and Left (the Greens) ahead of the majors. I wouldn’t care to venture if Bob Brown spoke truly when he claimed Xenophon’s objective this time around was to loom larger on a smaller cross-bench (a goal he has spectacularly failed to achieve if so). But if he was wrong and Xenophon was indeed motivated by principle, he offers a useful case study for why so few others followed suit. Despite scoring something between six and seven times as many votes, Xenophon landed the same number of seats as Family First. Stirling Griff started the preference distribution process with 107,110 votes, seemingly well on his way to the quota of 148,348. But as preferences swelled the Family First base vote from 38,909 all the way to 180,670, Griff was only able to limp to 121,743.

Senate call of the board

Senate results sliced and diced as the final determinations are reached, starting with the first two: Tasmania and the Northern Territory.

The first two Senate results were determined today, for Tasmania and the Northern Territory. No further results will be decided until at least next week, with the possibility of some having to wait until a week subsequently. This post will review the results as they emerge.

Western Australia (October 2)

The one we’ve all been waiting for: it’s Louise Pratt and PUP, rather than Scott Ludlam and Sports, possibly pending an unprecedented Senate recount. 1. David Johnston (Liberal); 2. Joe Bullock (Labor); 3. Michaelia Cash (Liberal); 4. Linda Reynolds (Liberal); 5. Zhenya Wang (PUP); 6. Louise Pratt (Labor).

The result was decided by a difference of just 14 votes, that being the margin at the key point of the count between Shooters & Fishers (23,515) and Australian Christians (23,501). Going on the ABC computer projection, the margin at that point in the count was 23,395 for Shooters & Fishers against 22,967 for Australian Christians. So below-the-line votes cost van Burgel 534 vote and Bow 120 – not quite enough to make the difference. Had Shooters & Fishers dropped out, their preferences would have gone to the Australian Sports Party, sustaining them at a point in the count where they would otherwise have been excluded. There would then have come a later point in the count where the Palmer United Party would have been excluded on account of being behind the Sports Party, and their preferences would have flowed to the Greens giving Ludlam the seat at the expense of Pratt.

New South Wales (October 2)

As anticipated, 1. Marise Payne (Liberal), 2. Bob Carr (Labor), 3. John Williams (Nationals), 4. Doug Cameron (Labor), 5. David Leyonhjelm (LDP); 6. Arthur Sinodinos (Liberal).

Queensland (October 2)

No surprises here either, except that it’s come sooner than anticipated. 1. Ian Macdonald (LNP), 2. Chris Ketter (Labor), 3. James McGrath (LNP), 4. Claire Moore (Labor), 5. Glenn Lazarus (PUP) & 6. Matt Canavan (LNP).

Victoria (October 1)

1. Mitch Fifield (Liberal), 2. Gavin Marshall (Labor), 3. Scott Ryan (Liberal), 4. Jacinta Collins (Labor), 5. Janet Rice (Greens); 6. Ricky Muir (Australian Motoring Enthusiasts Party).

Also confirmed today, and also in line with what all models were projecting.

South Australia (October 1)

1. Cory Bernardi (Liberal); 2. Nick Xenophon; 3. Penny Wong (Labor); 4. Sarah Hanson-Young (Greens); 5. Bob Day (Family First); 6. Simon Birmingham (Liberal).

Confirmed today, with no surprises. More to follow.

Australian Capital Territory (October 1)

1. Kate Lundy (Labor); 2. Zed Seselja (Liberal).

Confirmed this morning. No surprises here.


1. Richard Colbeck (Liberal); 2. Carol Brown (Labor); 3. David Bushby (Liberal); 4. Catryna Bilyk (Labor); 5. Peter Whish-Wilson (Greens); 6. Jacqui Lambie (Palmer United).

Liberal and Labor both scored a clean two quotas off the primary vote (2.63 and 2.30 respectively), with Labor’s surplus enough to ensure election for Peter Whish-Wilson (0.82) after the exclusion of the third Labor candidate, Lin Thorp. The race for the final seat ended up a three-way contest between the ultimately successful Jacqui Lambie of the Palmer United Party, third Liberal candidate Sally Chandler, and Robbie Swan of the Sex Party. The ABC calculator had been giving it to Swan because a strong performance on preferences, including from some unlikely sources, would have helped him stay ahead of Lin Thorp by 15,145 to 14,449 at a key point of the count. However, many of those preferences were perversely to come from conservative parties (Shooters and Fishers, Country Alliance, Australian Fishing and Lifestyle Party) whose supporters were not of a mind to direct preferences to the Sex Party consciously (UPDATE: Kevin Bonham in comments points out the Sex Party in fact got more below-the-line preferences than Labor from Shooters and Fishers voters – however, on the ABC calculator projection they were getting all of them). That caused 653 below-the-line votes for those parties to leak away, while below-the-line votes gave Thorp a net gain of 287. The closure of the gap meant the exclusion of Swan, followed by the exclusion of Thorp and the election of Whish-Wilson. At this stage, Jacqui Lambie emerged with a 31,142-29,866 vote lead over the Liberal Democrats, whose exclusion unlocked the flood of preferences which elected her. Had Lambie failed to stay ahead of the Liberal Democrats, her own preferences would have decided the result in favour of Chandler.

Northern Territory

1. Nigel Scullion (Country Liberal); 2. Nova Peris (Labor).

Labor finished just short of a quota with 0.9824, but would presumably have got over the line on below-the-line preferences on any scenario. Even if it were otherwise, the combinations that might have put Nova Peris in jeopardy were not in place. The one party with the potential to absorb the entire non-Labor vote was First Nations, but the combined vote for it and its immediate preference feeders amounted to only 2.18%, giving its candidate no chance of overtaking Australian Independents or Shooters and Fishers as required to keep the snowball rolling. Peris made it to a quota when Sex Party preferences were distributed, and stood to receive the 8.7% Greens vote if the count had proceeded further.

Photo finishes: the Senate

A review of the Senate election results, to be updates as late counting progresses.

Progressive updates of the long and laborious Senate count.

Still in play

Western Australia

Monday 23/9. The ABC computer projection today flipped to show the last two seats going to Louise Pratt and Zhenya Wang at the expense of Scott Ludlam and Wayne Dropulich, the decisive change being that Australian Christians have fallen behind Shooters and Fishers at “Count 21”. This deprives Dropulich of the Shooters and Fishers preferences he needs to survive the subsequent counts.

Tuesday 17/9. The most excellent Senate modelling of PB regular Truth Seeker illustrates the delicate balance of the count here, and the stars that need to remain aligned if Wayne Dropulich of the Australian Sports Party is indeed to find his way to the Senate off 0.2% of the vote. Key to the outcome is Dropulich remaining ahead of the Rise Up Australia party after distribution of preferences from Australian Voice, after which his snowball builds all the way to a quota. This might yet be undone by a gentle trend towards RUA on late counting, together with the unknown quantity of below-the-line votes. Should Dropulich fall short, not only will his own seat instead go to Zhenya Wong of the Palmer United Party, but the complexion of the race for the final seat between Scott Ludlam of the Greens and Labor’s Louise Pratt will change. This is because the comfortable win presently projected for Ludlam is achieved off Palmer preferences, which won’t be available to him if the votes are used to elect Wong. Truth Seeker’s projection is that Pratt will “almost certainly” defeat Ludlam on a scenario in which Wong is elected.

Monday. Together with the Australian Motoring Enthusiast Party in Victoria, the other freak result being projected is that someone called Wayne Dropulich from something called the Australian Sports Party is projected to win off 0.22% of the primary vote. However, there are two points in the projected count where Dropulich narrowly escapes exclusion after finishing slightly ahead of the No Carbon Tax and Rise Up Australia parties. Those hurdles cleared, he harvests almost the entirety of the micro-party vote along with the Liberal Party surplus. If he drops out, it looks like another seat would be in the bag for the Palmer United Party, whose candidate is the little-known Zhenya Wang. The other point at issue is whether the second “left” seat goes to Labor’s number two candidate, incumbent Louise Pratt, or Greens Senator Scott Ludlam. If Zhenya Wang drops out, Ludlam looks the certain winner as he stands to receive the Palmer party’s preferences. But if the Palmer candidate is elected and has no preferences to spare, the result between Ludlam and Pratt at the final count becomes very close, though with Ludlam still appearing better placed.

Election night. One of a number of freakish outcomes currently projected by the ABC computer is that something called the Australian Sports Party wins a seat off 0.22% of the vote. However, there’s a very good chance that they will not in fact make it through the early rounds of the count. It does appear though that a micro-party seat is up for grabs to join the three for the Liberals and the two for Labor and/or Scott Ludlam. As best as I can tell, the only danger to Ludlam is that a share of the Palmer United Party vote might get used to elect one of the micro-parties candidates who are above the Greens on their preference order, which include the Liberal Democrats, the Australian Christians and Family First, perhaps depriving him of the preferences he needs to defeat Louise Pratt at the final count. It is also problematic for him that the PUP, being largely a phenomenon of the late campaign, may fade as pre-poll and postal votes are added.


Tuesday 24/9. The AEC yesterday announced that the computerised preference distribution will be conducted tomorrow, and the result declared on Thursday.

Tuesday 16/9. With two seats each for Labor and Liberal and one for the Greens assured, there are three scenarios for the final seat which could variously see it go to third Liberal candidate Sally Chandler, Jacqui Lambie of the Palmer United Party, or Canberra resident Robbie Swan of the Sex Party. The ABC computer is presently intriguing journalists by giving it to Swan, based on him finishing ahead of Labor at Count 21 by the grand total of 14,275 to 14,274. That sees Swan soak up the Labor/Greens surplus to finish ahead of the Liberal Democrats, whose preferences then put him ahead of Lambie and on to victory with Lambie’s preferences. But if the situation at Count 21 was just one vote different, Swan would be excluded and his preferences distributed in such a way as to leave Lambie about 1000 votes behind the Liberal Democrats, and thus be excluded. Lambie’s preferences would then flow to the Liberals and deliver the seat to Sally Chandler. A win for Lambie thus looks the least likely of the three possible scenarios, although the high rate of below-the-line voting in Tasmania is such that I don’t think it should be entirely ruled out.

Thursday. The ABC projection in Tasmania no longer has Jacqui Lambie of the Palmer United Party winning a seat, as she now finishes behind the Liberal Democrats (28,114 to 27,234) after the Greens surplus is distributed at Count 24. I earlier presumed that this scenario would deliver the seat to the Liberal Democrats, but Palmer preferences are in fact going to the Liberals and, unless Lambie can recover, will deliver the final seat to the third Liberal candidate, Sally Chandler.

Monday. Labor and the Greens have won over three quotas between them, securing two seats for Labor plus the re-election of Greens Senator Peter Whish-Wilson, despite a headlong plunge in the Greens’ statewide vote from the historic high of 2010. On the right, the Liberals have won their obligatory two seats, but the last is a close-run thing between the third Liberal, Palmer United Party candidate Jacqui Lambie (who unsuccessfully contested Liberal preselection for Braddon) and Clinton Mead of the Liberal Democrats. All three are between 9% and 10% at the second last exclusion, Mead having preference-harvested off a base of 2.29%, Lambie having received the Labor and Greens surplus, and the Australian Christians and Rise Up Australia feeding preferences to third Liberal candidate Sally Chandler. The high rate of below-the-line voting makes this particularly hard to pick.

Election night. Neither Labor nor Liberal appears to have the firepower to get a third member up, leaving Labor preferences to re-elect Peter Whish-Wilson. The last seat, I believe, is a toss-up between the Palmer United Party, currently projected to win the seat, and those pesky Liberal Democrats.


New South Wales

Monday. David Leyonhjelm of the Liberal Democratic Party is currently on 8.9% of the statewide vote, which is almost certainly an accidental consequence of his party being the first listed on the huge ballot paper, and hence the first most voters encountered with the word “Liberal” in its name. The party also receives the preferences of the Democratic Labour Party, which is on a not insubstantial 1.5%. The DLP too did handily on the ballot paper draw, securing the third position out of 44 groups, and similarly owes some of its vote to those who thought they were voting for the other Labor party. A further 0.4% was funnelled to the party by the snappily named Stop the Greens, Smokers Rights and Australian Republicans, whose links to the LDP have been reviewed by Crikey’s Andrew Crook . Other micro-parties feeding Leyonhjelm preferences, either due to their general hostility to larger parties or because they hoped to be the ultimate beneficiary of the preference network, include Katter’s Australian Party, Shooters & Fishers, the Fishing & Lifestyle Party, the Christian Democatic Party, One Nation, the Sex Party, Wikileaks, the Animal Justice Party, HEMP and the Drug Law Reform Party and the Stable Population Party. Not too many of these parties’ supporters would have cast their vote with the intention of electing a party that trades in Ron Paul-style low-tax libertarianism. When combined, Leyonhjelm emerges with a 14.3% quota with at least 4% to spare, and no need for any surplus from the major parties.

Election night. Notwithstanding a sadly typical flurry of excitement based on a meaningless early projection, Pauline Hanson’s chances have been negated by the phenomenon of an accidental 8.9% vote for the Liberal Democrats. This has probably secured a result of three Coalition, two Labor and one Liberal Democrats, although the Greens would be a chance of nabbing one of the Coalition seats if they or Labor improved in late counting for some reason.


Monday. Despite picking up a swing in Victoria, the Coalition has for the second election running failed to achieve a Senate vote sufficient to ensure a third seat. Last time this caused them to lose out on a third seat which instead went to the Democratic Labor Party. However, the DLP’s vote in Victoria was well down this time, mostly no doubt due to the proliferation of competition. Based on Antony Green’s calculator, Ricky Muir of the Australian Motoring Enthusiast Party stands to win the final spot, simply because the Coalition doesn’t have three quotas in its own right and very few parties are favouring it ahead of Muir, who fortuitously outperformed other micro-party candidates due to the way preferences were allocated. As far as I can see, the most likely scenario to thwart Muir involves him falling behind Australian Christians and the Australian Fishing and Lifestyle Party at a point where one of three must be excluded, though this would be easier to envision if Muir had to fall below two candidates rather than just one. If he does fall short, it appears that the last micro-party standing would be Family First, who would not match Muir’s preference firepower owing to the Sex Party (polling close to 2%) putting the Christian parties last. The upshot would be that Liberal incumbent Helen Kroger could get up after all, leaving the Abbott government with one less cross-bencher to worry about.

Election night. The ABC calculator currently projects a win for the Australian Motoring Enthusiasts Party off 0.52% of the vote together with two Liberal, two Labor and one Greens, but I wouldn’t stake the mortage on that. However, the Coalition has fallen short of a third quota and doesn’t get many preferences, helping to explain why the preselection stoush between second placed Scott Ryan and third placed Helen Kroger was so willing. In Kroger’s stead, the final seat would go to some or other right-wing micro-party. Unlikely to be in the hunt are the “DLP Democratic Labour Party”, whose vote from from 2.33% to (on current numbers) 0.69%. This was no doubt partly due to the greater competition for the micro-party vote, but I also suggest it was a bad idea to subtly rename themselves from “Democratic Labor Party (DLP) of Australia”, which I suggest was easier to confuse with the Australian Labor Party.


Monday. Here at least the result is both straightforward, with the Liberal National Party winning three seats, Labor two and the other going to Glenn Lazarus of the Palmer United Party, and inoffensive on a democratic level, since a) Lazarus’s 10.3% of the vote is near enough to a full quota in his own right, and b) people were clearly voting for him on purpose.

Election night. I think you can lock in the currently projected result of three Liberal National Party, two Labor and one Glenn Lazarus of the Palmer United Party looks locked in.

South Australia

Monday. Another of the many extraordinary results was that Nick Xenophon outpolled the Labor Party in South Australia, by 25.88% to 22.78%, and finished only slightly behind the Liberal Party on 26.69%. That looks certain to limit Labor to one seat, Don Farrell’s act of altruism in conceding the top position on the ticket to Penny Wong appearing more consequential than he probably realised at the time. That leaves a decisive Labor surplus to pass on to Sarah Hanson-Young, who had wrongly been written off by many who failed to consider the possibility of Xenophon sucking up enough votes to reduce Labor to one seat. Xenophon could probably have won a seat for his running mate if he had been more ready to engage in preference deals, but very few of the minor players have favoured his running mate over Liberal incumbent Simon Birmingham. The remaining seat looks set to go to Family First, whose candidate is housing tycoon and one-time Liberal candidate Bob Day. Day polled a strong 3.77%, and the only potential roadblock on his path to victory is that he finishes only slightly ahead of the Liberal Democrats at the point where they are excluded. South Australia’s six Senate seats thus look set to be divided between five different parties.

Election night. I may need a fresh pair of eyes on this one this morning, but I think the present projection of two Liberal and one each for Labor, Nick Xenophon, the Greens and Family First is the likely outcome. The one potential disturbance I see is Count 27, where the Liberal Democrats are excluded on 3.67% only just behind 4.03% for Family First. A reversal would, I presume, give the Liberal Democrats the seat instead. Despite Xenophon’s brilliant success in scoring 1.8 quotas, I don’t believe he can secure the remaining 0.2 quotas he needs to elect his running mate. Labor’s failure to secure a second seat, as looks to have happened in Western Australia in results without historical precedent, looks likely re-elect Sarah Hanson-Young. Now recall that the Labor Party initially proposed to give Don Farrell the only winning spot on the ticket at the expense of Penny Wong.


Monday. The territories have never failed to deliver one seat each to the major parties, but Greens candidate Simon Sheikh has at the very least come extremely close to knocking off Liberal candidate Zed Seselja, the former ACT Opposition Leader making a bid for federal parliament after knocking off incumbent Gary Humphries for preselection. In the Northern Territory, there was talk that Nova Peris’s path to the Senate might be blocked by the tightness of preference flows to the indigenous rights party First Nations, but their vote was too low to put them in contention.

Election night. The Greens are making their best fist yet of winning a Senate seat in the ACT, potentially thwarting Zed Seselja’s bid to move from territory to federal politics. However, the ABC projects Zeselja holding by 34.05% to 32.62% at the final count, and my instinct is that that’s unlikely to be overturned on late counting. In the Northern Territory, the First Nations party doesn’t look like it’s going to survive the early stages of the count, thwarting a potential threat to Nova Peris’s election, which probably would have been averted anyway by a near-quota vote for Labor.

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