Category: Federal Politics 2010-2013

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.

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.

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.

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.