Electoral Law

Dunstan By-election Updates plus problems with the SA Electoral Act

After looking the clear winner of the Dunstan by-election on Saturday night, Labor has finished with a narrower margin than expected.

Dunstan had been held by former Liberal Premier Steven Marshall since 2010. He squeaked home with a narrow 0.5% margin at the 2022 state election which meant the seat was always going to be a hotly contested by-election on his retirement. (For background on the by-election and the results see my profile on the ABC Elections website. Final figures published.)

On election night the Labor Party finished on 53.8%, boosted to 54.0% on Sunday by check counting. At that point, based on declaration vote trends at the 2022 state election, Labor would have expected to finish with 52.7% once all votes were counted.

In fact the race has been much closer. On Thursday 28 March, Labor’s Cressida O’Hanlon is on 50.8% after preferences with a lead over Liberal Anna Finizio of 347 votes. The count is at 80.5% of enrolment with only a handful of outstanding postal votes remaining to be counted. Due to Good Friday, postal vote return closes on Tuesday 2 April to be followed by the formnal distribution of preferences.

Labor will win after a swing of 1.4%, down substantially on the 4.5% swing seen on election night.

The table below shows how the count narrowed with the release of each successive declaration vote count.Read More »Dunstan By-election Updates plus problems with the SA Electoral Act

Obstacles in the way of Independents at the ACT Election

Australian jurisdictions that elect upper houses by proportional representation, and allow the grouping of candidates on the ballot paper, have a two step process for nomination.

First a candidate nominates. Then candidates can lodge a separate form requesting they be grouped on the ballot paper. Candidate that don’t lodge a grouping request will be placed in the ‘Ungrouped’ column on the far right of the ballot paper.

When requesting grouping, candidates also specify the order in which their names will be listed in the column. Where the candidates are from a registered party or parties, their party name or names will be printed at the top of the column.

The rules are different for Tasmania and the ACT, the two jurisdictions that use variants of the Hare-Clark electoral system. Request for grouping are allowed, but parties and candidates cannot determine the order names are listed. Hare-Clark ballot papers randomise the order of candidate names printed in each column.

In Tasmania there are differences in the grouping rules for party candidates versus independent candidates. Parties simply request their candidates, or even a single candidate, be listed in one column. An Independent or Independents can make the same request, but as explained in this post, they must supply more nominator names.

In contrast the ACT does not allow grouped Independents. Independents will be placed in the Ungrouped column unless the Independents go through the process of registering a party name. For slightly different reasons, David Pocock registered a party called David Pocock to contest the 2022 Senate election, making it easier for voters to identify him on the ballot paper.

This rule on Independents will be a major impediment for the talk of Independents contesting the ACT election in October. Unless they register some sort of party name to nominate under, ACT Independents will be placed in the Ungrouped column.

The first blog post I ever published was in 2008 and concerned changes to the ACT Electoral Act restricting ballot paper columns to registered parties.

That old blog is no longer publicly available. With Tasmanian and ACT elections looming, and talk of high profile Independents contesting both, I thought it worth resurrecting the old post. In short, Tasmania provides a mechanism allowing Independents access to a column on the ballot paper, but the ACT does not.

The unaltered post below was first published on 28 March 2008.Read More »Obstacles in the way of Independents at the ACT Election

How many Voters mark Referendum Ballot Papers with a Cross? Not many based on evidence.

Finding – in 2009 WA held a referendum on daylight saving. A one-box ballot paper similar to the Federal referendum ballot was used and the formality rules on ticks and crosses were exactly the same. Out of 1,148,853 ballot papers, just 199 were marked with a single cross and declared informal, a rate of just 0.02%.

And in addition – as I explain later in the post, the ticks and crosses issue arises because parliament hasn’t acted to clarify the law.

At ‘The Voice’ referendum, how many people will be confused by the referendum ballot paper? The instructions are very clear to write “Yes” or “No”, but how many are going to be confused and instead use a tick or a cross?

This has become an issue because the Referendum (Machinery Provisions) Act states that where a voter has not written Yes or No, the ballot paper will be assessed for intent.

Unlike NSW electoral law, the Referendum Act doesn’t provide specific guidance on how to deal with ticks and crosses. The Referendum Act was amended earlier this year to deal with ballots marked with ‘Y’ or ‘N’, but everything else is still left to assessment of intent.

On the Australian Electoral Commission’s legal advice, the intent provision means a tick is a sign of agreement and will be counted as a Yes, but a cross is ambiguous in intent and will be treated as informal. This is the same ruling that applied at four referendums in 1988 and two in 1999.

Parliament could have amended the Act at any time in the last 35 years to address ticks and crosses, as NSW has done four times in the same period. But the politicians haven’t addressed it and now some attack the Electoral Commissioner, despite him simply applying the law as written by politicians, and despite using the same rules as applied by commissioners going back to the 1980s.

This morning “The Guardian” reports a field director for Fair Australia as saying that crosses could account for up to 5% of the vote being discounted.

This is a ridiculous figure in my experience. Due to preferential voting, Australia is devoid of ballot papers with instructions to use a tick or a cross.Read More »How many Voters mark Referendum Ballot Papers with a Cross? Not many based on evidence.

Pauline Hanson Deposes Mark Latham as NSW Leader

UPDATE 22 August: NSW MLCs Mark Latham and Rod Roberts have announced their resignation from One Nation. They will continue to sit in the NSW Legislative Council but as Independents. Recently appointed Tania Mihailuk will remain a One Nation member. Tables in this post have been updated to reflect today’s events.

As has happened so often in the past, Pauline Hanson has fallen out with other MPs that represent One Nation.

Hanson has deposed One Nation’s NSW state executive and announced that Mark Latham is no longer the party’s state leader. This has led to Latham and Roberts resigning from the party.

Let me run through a series of question on where this dispute will go, and also the remarkable history of MPs leaving One Nation after falling out with Hanson and her backers.Read More »Pauline Hanson Deposes Mark Latham as NSW Leader

The Secular Decline in Support for the NSW Christian Democrats

While the term is normally limited to use in finance and economics, ‘secular decline’ is an apt description for the downward trend in support for the NSW Christian Democrats over four decades, as well as being an irresistible play on words.

The Call to Australia was formed from groups that were active in the late 1970s campaigning against pornography, abortion, homosexuality and various issues that were often lumped together as “victimless crimes”. The Call to Australia campaigned to enter parliament.

Which it did at the 1981 NSW election when Call to Australia Leader, the Reverend Fred Nile, was elected to the NSW Legislative Council. The party polled 9.1% of the vote, 1.46 quotas, and might have elected a second member were it not for leakage of preferences.

After several previous announcements over many years that he would leave the Legislative Council, Rev. Nile is finally calling time on his parliamentary career after nearly 42 years. Nile will not contest the 2023 election. Instead he will put forward his second wife, Silvana Nile, to fill his spiritual void on the ballot paper.

Mrs Nile faces a difficult task. Support for the Christian Democratic Party has declined since its glory days in the 1980s. Even worse, the party has been de-registered at both state and federal level, so the Nile ticket will have no party label at next year’s state election.

Since party names were first printed on NSW Legislative Council ballot papers in 1991, no unlabelled group has ever elected an MLC. Pauline Hanson running as an Independent coming closest from 2.4% in 2011.

There is also another oddity. Often retiring members will vacate their seat in favour of their replacement, the NSW Constitution requiring that the replacement be from the same party.

But the Christian Democratic Party has not only been de-registered. It was actually wound up by the courts, so does not even exist as an unregistered party. The NSW Parliament has not previously filled a vacancy for a party that has ceased to exist, and appears to have no intention of doing so before next March.

The graph below shows the party’s decline in support since its first election in 1981. The party elected a member at every election until missing out in 2019.

Read More »The Secular Decline in Support for the NSW Christian Democrats

Mark Latham and Filling NSW Legislative Council Vacancies

In today’s Sydney Morning Herald, Alexandra Smith reports on a plan by One Nation’s NSW Leader Mark Latham to resign from the Legislative Council half way through his current term and contest fresh election to the NSW Legislative Council next March.

This would give Latham a new eight-year term and allow One Nation to nominate a replacement for the four-year balance of Latham’s current term.

Let me quote Smith’s article to explain the plan –

One Nation MP Mark Latham is planning to quit the upper house to run again at the top of the ticket in the March election, in a bid to boost the number of MPs the party has in the Legislative Council.

Latham, who is half-way through his eight-year term, wants to recontest a new position in the upper house in order to “renew his mandate”.

A replacement One Nation candidate would be found to fill his casual vacancy.

One Nation secured two upper house spots at the last election – Latham and retired detective Rod Roberts. However, Latham is eager to increase the party’s representation to at least four MPs.

Latham believes that the party could repeat its 2019 performance in March, particularly if he heads the ticket.

Is this allowed?

The answer is almost certainly yes. Legislative Council members have resigned to contest lower house seats and federal elections in the past, and sometimes been re-appointed if they miss out on election. There seems to be nothing in the Constitution or standing orders that suggest the same rule wouldn’t apply to resigning for a Legislative Council election.

It seems that an MLC elected to an eight-year term can resign after four years to contest election for the alternate Legislative Council term. The member would effectively be elected to two over-lapping positions in the Council created by their two elections, though it would be impossible for one person to hold both positions.

Mr Latham would have to resign before the close of nominations. If elected in March, he could be sworn into a new seat in the Legislative Council and be free to nominate his own replacement at the joint sitting that would follow.

If he were unsuccessful, Mr Latham could be re-appointed to his vacancy after the election. So successful or not, Mr Latham could remain in the Council.

There is probably nothing the NSW Parliament can do to stop the plan. After the election, there would have to be a Joint Sitting of the two houses to elect a replacement, and One Nation is responsible for nominating a replacement without a vote

Yet if a party tried the same tactic for a Senate casual vacancy, a vote would be required to accept the replacement. The Commonwealth Constitution and the standing orders require a vote of approval on the candidate to fill the vacancy. And as the Tasmanian Parliament showed in 1987, a state Parliament can refuse to appoint a replacement.

That’s not an option for Legislative Council vacancies.Read More »Mark Latham and Filling NSW Legislative Council Vacancies

Loophole allows Liberal Democrats to Retain their Party Name

(7:15pm – this post has been updated to clarify some points of law.)

Last year Labor and the Coalition combined to pass legislation that prevented parties from having registered names that were too similar to those of already registered parties.

It was clear the target of the legislation was the Liberal Democratic Party. Last November, after applications by the Liberal and Labor Parties, the Australian Electoral Commission (AEC) gave notice that the Liberal Democratic Party and the Democratic Labour Party would be de-registered if they did not change their names.

The full 3-person Australian Electoral Commission confirmed the original de-registration notice from November on 9 February., so the Liberal Democrats were de-registered under their existing name.

On 9 March the High Court upheld the new law by which the party had been de-registered. It looked like game, set and match for the Liberal Democrats.

But no, the Liberal Democrats are free to contest the 2022 election under the name Liberal Democrats despite the law and despite the High Court.

It all comes down to a clever loophole in the law that someone in the party spotted.
Read More »Loophole allows Liberal Democrats to Retain their Party Name

Why the 2022 House and Senate Elections will be held on the same day

Last year I wrote a post on possible elections dates. In the post I wrote “There is a highly improbable option for a half-Senate election by 21 May 2022 and a separate House election as late as 3 September 2022.”

This improbable option keeps being re-cycled as a real possibility.

It isn’t.

If the government doesn’t call a May election for the House in conjunction with the required half-Senate election, it would be an admission by the government that it is too frit to face the electorate. There is no constitutional or public administration reason to hold separate elections for the House and half-Senate in 2022. Separating the elections would be because the government saw some electoral benefit.

In my view there is no benefit for the government in splitting the elections. In fact, splitting the election would be a terrible re-election strategy. Forcing the electorate to vote twice at most only 15 weeks apart would be deeply deeply unpopular and almost guarantee the government’s defeat.

No Australian Prime Minister has ever called a separate half-Senate election at a time when a House election was due. No Prime Minister has ever delayed a House election beyond its normal term by creating two elections 15 weeks apart. Prime Minister Morrison is not going to the first Prime Minister to engage in the folly of splitting the two elections in this way. He didn’t do it in 2019 and he is not going to do it in 2022.

The only people peddling this split election nonsense are people on twitter who hate the government. Splitting the elections would guarantee defeat. The government is not going to select the option that is its worst possible option for winning re-election.

So having vented my irritation that this nonsense is still being peddled, let me explain why the elections can be split.Read More »Why the 2022 House and Senate Elections will be held on the same day

Why the NT seat of Lingiari keeps being mentioned in the VoterID Debate

Opponents of the Morrison government’s VoterID bill, currently being debated by Parliament, have regularly pointed out that some groups of voters will be disadvantaged by the new law if passed.

The argument is that some groups of electors are less likely to have the forms of identification set out in the bill, meaning they will be disproportionally represented amongst those denied access to an ordinary vote.

The group most often mentioned is Indigenous voters, in particular remote Indigenous voters, and the electoral division where this will have the most impact is Lingiari, the sprawling outback Northern Territory seat.

According to the 2016 Census, 40% of the division’s residents are Indigenous. But because remote voters are not included in the national automatic enrolment program, and because of cuts in remote indigenous enrolment programs, indigenous voters make up less than 40% of enrolled electors in Lingiari.

In Lingiari, remote postal services are largely non-existent and the electorate has the nation’s lowest rate of postal voting at 2.9%. As a proportion of electors, this figure is even lower in comparison to other divisions because Lingiari consistently has the nation’s lowest turnout. The turnout in Lingiari at the 2019 election was 72.9% compared to the national figure of 91.9%.

Turnout is low because remote Indigenous voters have little access to election day polling places used by other Australians, and because pre-poll ordinary voting is generally only available in Alice Springs, Katherine, and around Greater Darwin.

Most Indigenous votes are collected by remote mobile polling teams that travel around the electorate visiting communities for as little as one hour on a single day.

One of the key campaign jobs of candidates in Lingiari is making sure communities know when a mobile team is turning up, and making sure community members are around to vote when it arrives. Many miss out.

So Lingiari is central to the debate on voter ID. Remote indigenous electors are already the category of Australians least likely to be enrolled, least likely to have the opportunity to vote, and due to this new law, may become the group least likely to be allowed to cast an ordinary vote.Read More »Why the NT seat of Lingiari keeps being mentioned in the VoterID Debate

NSW Local Government Elections Website

I’ve published a new election website for the ABC.

It’s a site covering the twice delayed NSW Local Government Elections to be held on 4 December. You can find the site it at this link.

I assure you this is not the most riveting election site I’ve published. It’s more public service than news. Given that the NSW Electoral Commission’s website is difficult to navigate, I hope my more simple display of candidates and results will prove useful for voters and political tragics. I hope to add more content on the political composition of councils over the next week and a half.

In the rest of this post I’ll summarise some statistics on the elections and point to one or two oddities produced by the elections.Read More »NSW Local Government Elections Website