Wednesday, August 16, 2017

Questions To The ABS Re Marriage Law Postal Survey

(Admin note: I have just made a change to the comments screening on this site.  If you have problems submitting comments but haven't had problems in the past please email me at k_bonham@tassie.net.au .  Where people have trouble submitting comments I am happy to accept them by email provided it is clear which article they are to be posted to and that they are for public posting.)



I have just sent the ABS the email below regarding the upcoming (unless the High Court decides otherwise) same-sex marriage postal survey. It raises various questions about quality assurance.  The email is exactly as sent except that I have removed my telephone number.  (I am happy for journalists who have or can find my number to call me at any reasonable time, but I do not want phone calls from time-wasting randoms.)

Also see Michael Maley's consolidated compendium of plebisurvey issues.  The entertaining issue of 16-17 year olds voting has now, alas, been knocked on the head by a fresh directive from Minister Cormann.

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Dear ABS,

I was given this email address via the phone information line (1800 572 113).  Please forward this inquiry to the most appropriate people involved in the design of the Marriage Law Postal Survey.

I am an electoral analyst, political commentator and (at times) electoral design consultant who writes about elections and related processes both on my own website (kevinbonham.blogspot.com.au) and on Twitter, and who also frequently comments about electoral and political matters in the press, especially within Tasmania.

On the assumption that the High Court finds the MLPS to be legal and it proceeds, I am interested over time in receiving more detailed and preferably on the record information about quality assurance processes that will be in place, and the extent to which those might (or might not) resemble those available for federal elections and referenda.

I am well aware that things are very early in the design process for the survey and that many of my questions may not be answerable immediately.  I would be happy to receive information at a later date especially if there is some prior indication of when such information might be available.  I am also well aware that some of the matters I discuss could in theory be addressed by legislation or regulation, and that there may well be public statements about many of these these matters as more of the details are finalised.

I have also copied this enquiry to the Minister for Finance Senator the Hon Mathias Cormann as the now responsible Minister for the MLPS, and I am publishing this email on my website, and will report any responses I receive unless designated as off-record.

The list of questions is below.

Thank you very much for your time with what I am well aware is an unusually complex and detailed set of requests.

Yours sincerely, Dr Kevin Bonham
(phone [..])

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1. Will, as appears to be the case, survey responses be being processed and counted while the time window for submitting responses is still open?

2. If yes to 1, what will happen if a respondent reports that their survey has been stolen (or that they did not receive a survey) after their vote has already been received and processed

3. Will automatic character recognition be used to count survey responses?

4. If yes to 3, will there be manual verification (eg by checking images on a computer screen as done in the 2016 Senate election) that every survey response has been scanned correctly?

5. To what extent will the observers appointed by Members of Parliament be allowed to observe the counting process in respect of each specific survey form?

6. Will every Member of Parliament, or failing that at least every party represented in the Parliament and every independent MP, be entitled to nominate their own observers?

7. Will there be a process for observers to challenge any apparent errors they may observe, as scrutineers may do in an election, and to what level will it be possible to escalate such challenges?

8. Will clear and detailed validity guidelines on what will be interpreted as a valid survey response be posted online prior to the mailing of any survey forms?

9. Will the survey form require the respondent to write a word or to tick a box?

10. If observers have the ability to observe counts being made before the window for survey responses has closed, will there be any prevention on them publishing, or causing to be published, comments about evidence they have gained in the process about the likely outcomes of the survey (without disclosing sensitive information in the process) and if not how will such behaviour (including via “leaks” to anonymous third parties) be prevented?

11. What will be the design of the envelope system used to return survey forms?  It has been mentioned that a scannable code will appear on the survey forms.  Aside from this what components (including outer envelopes) will contain identifying information, if any, whether coded or not?

12. Will there be a requirement for a respondent to sign any part of the returned material (such as a detachable flap on an internal envelope as used in Tasmanian local government elections) that can be used to determine whether a response was submitted by the voter or not?

13. Will there be any pre-defined provision for a request for a recount in the event that the outcome is especially close?

14. It is stated that the Australian Statistician will publish a statement on the quality and integrity of the survey on 15 November 2017.  However this comes only eight days after the last date for receipt of responses.  It is possible – as is frequently the case with results by booth in federal elections - that concerns about the validity of some results might only be apparent once figures are released.  Will there be provision for investigating and officially responding to any quality concerns raised after 15 Nov?  In the event that errors in the final figures are identified, will there be provision for a revised result to be released?

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(email to ABS ends)

Update (Thursday 17 Aug): While I have not personally received any answers, some of these questions have been covered by senior ABS staff in today's Senate inquiry hearing.

Answers appear (in summary) to be as follows, though I did not manage to hear the entire hearing and will be awaiting a transcript to fill them in in more detail:

3. Responses will be scanned.
9. Mark a box.
11. It sounds like just a reply-paid envelope with a form with a scannable code.
12. No requirement to sign anything.

12 is unfortunate.  A signature requirement can be very useful in identifying whether multiple submission is a result of survey theft as opposed to a result of the respondent being either forgetful or fraudulent.

Of concern to me was a discussion in which the ABS representative talked about forms sent to the wrong address because an elector was incorrectly enrolled.  In this case they could ask for another form and the code on the old form would be cancelled.  However, when asked what would happen in this case regarding the original vote not being counted, there was the answer that it was "a question of which is returned first".

I can't think of any other interpretation than this: that if someone gets a vote for someone else and uses it before the other person realises they were incorrectly enrolled, then the misused vote will count while the voter will be disenfranchised.  This might well apply to cases of vote theft too.

It seems unsatisfactory given that there are better solutions in place for postal elections, and shows the extent to which this is a rush job.

The other concerning aspect was a nonsensical passage in which the survey was claimed to be something the ABS could do in ways the AEC couldn't.  The only evidence offered for this claim concerned assistance for blind or similarly impaired respondents to have their survey completed by a third party.  In fact such assistance exists at AEC elections too.



Saturday, August 12, 2017

Will "Hate Speech" Be Illegal In The "Plebiscite"?

Things are moving fast in the Government's attempt to conduct a national voluntary postal vote on same-sex marriage.  Although we won't get to the High Court challenge against the "survey" until September 5-6 - meaning we might be a month away from knowing if the thing is on at all - a lot of questions are being raised and in cases answered about how exactly the plebiscite will be conducted, if it does proceed.  A major problem with the exercise has been that since it is not an Australian Electoral Commission process authorised by an act of Parliament, normal election requirements (authorisation, fraud and vote-buying protections and challenges) do not exist unless separately provided for.  In Thursday's instalment (Electoral Process, But Not As We Know It: Postal Plebiscite V2) I mentioned that at least regulation would be needed to get around these problems.  However the regulations available under legislation concerning the ABS are very limited concerning penalties.

In a welcome move, acting Special Minister of State Mathias Cormann has flagged the stronger possibility of special legislation to impose AEC-election-like conditions for the, er, whatever it's called.  This would create the really strange situation of the Senate approving laws governing a postal vote that the Senate had itself not approved and would have blocked if asked to approve it.  Such laws might themselves be subject to challenge.  The most important aspect of this debate for me, though, is the incorrect impressions of the impact of such possible laws that we are seeing in the media.  The SMH and ABC have referred to them as "ground rules for a fair and respectful debate on same-sex marriage", rules that would "stop hateful advertising material being distributed" and as protections against "malicious publications".  It isn't so.

Thursday, August 10, 2017

EMRS: White Lead Is A Big Problem For Liberals

EMRS August Lib 37 ALP 34 Green 16 Ind 6 JLN 5 Other 1
Interpretation Lib 39 ALP 38 Green 13 Others 10
Modelled seat result based on this poll if election held now: Liberal 11-12 seats Labor 10 Green 3-4 
Warning: Polls are snapshots, not forecasts
Preferred Premier Rebecca White leads Will Hodgman 48-37

A new EMRS poll of state voting intentions is out.  Also see the trend tracker. The party breakdown shows scarcely any change from the May result but the startling outcome is that Rebecca White leads Will Hodgman as preferred premier by the thumping margin of 48% to 37%.

Let's put that in the historic context drawn from other states.  It's very simple: preferred premier is an indicator that usually strongly favours incumbents.  When established state premiers trail as preferred leader in Newspoll (never mind by eleven points), they either lose the next election or are removed by their own party.  EMRS is not Newspoll, and it's possible its continued devotion to landline polling (which I strongly believe to be not fully randomised) has meant its results have become total rubbish.  But if that's not the case, the government should be rather worried.  The suggestion is that so far negative attacks on the new Opposition Leader have either not worked at all or even backfired.  

Opposition Leaders don't lead by eleven points just because people like them.  Historically this sort of imbalance happens when governments are in deep trouble or their leaders are unpopular, or both. Federal governments sometimes recover from it; state governments historically don't. The large lead for Rebecca White is probably also a sign that among the voters who EMRS flags as undecided, or as intending to vote for a minor candidate, there are probably a lot who are leaning towards Labor or likely to direct preferences Labor's way.  It should be noted, for contrast and a bit of sobrietry, that the recent ReachTEL had only a small White lead from a format that doesn't skew to incumbents, so perhaps this EMRS is an outlier.  I am also aware of an unpublished commissioned poll showing Hodgman with a small lead using similar question design to EMRS.

Electoral Process, But Not As We Know It: Postal Plebsicite V2

An article I wrote about the serious defects of a postal plebiscite (back on the annual day reserved for silly jokes) has for some unfathomable reason more than doubled its hit tally in the last 24 hours.  Now that a postal plebiscite (but run by the Australian Bureau of Statistics, not the Australian Electoral Commission) has been announced by the government, it's time to update certain aspects of my commentary.

What it appears we will have (unless it is disallowed by the courts) is something so bizarre that it was not anticipated in any of the many polls about a plebiscite.  Effectively, it is a national vote on whether the government will allow a conscience vote to be brought on in the parliament.  (If the plebiscite proceeds and the "no" side wins, then the government will block a conscience vote, presumably ending any prospects for same-sex marriage for so long as the Coalition stays in power.  This rather heavy-handed approach appears to be an attempt to prevent a mass boycott from working.)

Is it constitutional?

I don't know, but we'll probably find out soon enough.  At least two sets of campaigners against the proposed plebiscite are filing for injunctions against it.  Section 83 of the Constitution requires that appropriations must be supported by law, and no law has been passed for this plebiscite.  However there are various standing general-purpose appropriations that governments have flexibility to use for the ordinary running of government, and also in emergencies.  The question will be whether an appropriation for this purpose is valid.

Wednesday, August 2, 2017

More Section 44 Cases In Spotlight

A very long time ago now two Greens Senators resigned after discovering they were dual citizens.  The Senate will refer their cases to the Court of Disputed Returns (typically the High Court) which will determine whether they were eligible to have been elected in the first place and, assuming that they weren't, will initiate a "special count" to fill their places.  In the weeks since then, however, many more MPs have come under the spotlight of the dual citizenship rule in Section 44 of the Constitution, and it's unlikely it has claimed its final victim yet.

The Constitution is very black and white about dual citizenships - section 44 says that if you are a citizen of another country, you are not eligible to be chosen or to sit in Parliament.  It doesn't seem to allow any ifs or buts about all that.  However, the High Court in Sykes v Cleary [1992] found that the Constitution was unrealistic and had to be "read down".  After all, if it were that straightforward then another nation could maliciously impose citizenship on Australian MPs and refuse to withdraw it.  Alternatively, for a given citizen of a given nation, procedures for getting rid of an unwanted citizenship might be unrealistically expensive, time-consuming, slow, dangerous, unreliable or unreasonable.

The Sykes v Cleary judgement is a difficult one to apply to the many examples now being discussed because there are five separate statements of decision (one by three judges and four individual statements).  Basically, all the judges agreed that there was a need to "read down" the Section 44 requirement, but they did not all agree on how far to go.  Two of the seven considered that a statement under Australian law renouncing all other allegiances (eg during a naturalisation ceremony) was potentially enough by itself (with various qualifiers); the other five disagreed.  The other five went for various versions of "reasonable steps" or "all reasonable steps" to renounce citizenship by application to the overseas country as the test.

Those applying some version of a "reasonable steps" test (beyond naturalisation oaths) did not spell out the minimum conditions for the test to be met.  They merely made it clear that if someone had taken all reasonable steps to renounce citizenship before contesting,  then that person did not need to have succeeded in that attempt to have passed the test.

There are so many MPs who were either born overseas or may have inherited dual citizenship that it isn't practical to comment here upon them all.  Many cases may appear suspicious, but it may simply be that the MP has well and truly renounced and has yet to publish proof.  At this stage there are three cases that have been referred and two that realistically could be.  I may add to the list below as and when more facts come out about others.

Senators Scott Ludlam (Green, WA) and Larissa Waters (Green, Qld)

Status: Resigned and referred

These Senators have already resigned and it is expected that the High Court will find them to have not been validly elected in the first place, and therefore order special counts (see the earlier article).  The High Court in Sykes v Cleary showed little if any sign of caring whether or not an MP knew they were a dual citizen, with the taking of steps to remove dual citizenship being seen as the key test.  Neither Ludlam or Waters took any steps, so it appears they are in exactly the same boat as Phil Cleary's two ineligible opponents in his disallowed by-election win.  The High Court would have to substantially revisit Sykes v Cleary to allow the Greens to fill either of these positions by casual vacancy.

Electoral ramifications were covered in the earlier article.

Senator Matt Canavan (LNP, Qld)

Status: Referred, resigned from Cabinet, not voting

Canavan has resigned from Cabinet and his case will be referred.  Canavan was born in Australia but is recorded as an Italian citizen, according to him through an application made by his mother without his knowledge or consent.

On the surface, Canavan is in very serious trouble because he also took no steps to renounce.  If the leading judgement in Sykes v Cleary is followed, then his diminished connection to Italy compared to someone born there could mean the "reasonable steps" required are less onerous, but it doesn't remove the requirement to do something.  So Canavan is relying on something like the following happening:

* The High Court creates a new exception for cases where a person acquires citizenship of another country without their knowledge.
* The High Court rules that "reasonable steps" are not required for citizens by descent who passively acquire citizenship but have made no actual use of it.
* There is some determination that the application in Canavan's name to be an Italian citizen was invalid in the first place and hence that he was actually never a citizen.

In the event that Canavan is disqualified, his special count instead elects recent former Senator Joanna Lindgren (see Grahame Bowland's simulations).  This situation raises similar Section 282 problems (earlier article, again - and see discussion in comments) to the Scott Ludlam countback in that Lindgren would appear to get a six-year term, despite being lower on the original ballot than Senators Macdonald and O'Sullivan (who each got three year terms.)

If Canavan is found to have been validly elected, he will be free to continue his career and may well be restored to Cabinet.

Senator Malcolm Roberts (One Nation, Qld)

Status: Referred

Warning: this section has been rated Wonk Factor 4/5 on the grounds of containing discussion of obscure points of electoral law.

At the time of writing Roberts has not yet been referred to the High Court although referral looks likely (UPDATE 9/8: Roberts has now been referred) given that it has sufficient crossbench support that only one major party would need to support the referral for it to pass.  Roberts' situation based on material in the public domain so far (some of it only his own claims) appears to be:

* he appears to have been a British citizen by descent because his father was born in Wales
* he contacted the British consulate enquiring as to whether he was a British citizen from May 1 2016
* he contacted the British consulate on June 6 2016 (three days before the close of nominations) advising that if he was a citizen of Britain, then he renounced it
* after further correspondent - the nature of which is unclear - he received confirmation of renunciation in December 2016, five months after the election.

Roberts has displayed a very strange attitude to legal correspondence before so it should not be assumed that things are necessarily as they seem.  His position might be much stronger or much weaker than he makes out.  The large number of contradictory statements he has so far made suggests the latter, but we'll see.

If the above is all accurate then Roberts did at least take steps to renounce before the election (unlike Canavan), but the court would have to consider whether these steps were sufficient to count as "reasonable".  In particular, does Roberts' June 6 contact even count as a formal attempt to renounce (there is no indication it was on the proper form)?  Assuming the steps that Roberts took were adequate in isolation, does taking all reasonable steps to renounce citizenship also entail that those reasonable steps are taken far enough in advance of the election to succeed before nominations close?  Or does this place too much of a burden on candidates in terms of how far ahead of an election they need to commit themselves to running?

If Roberts is found to have been ineligibly elected, his seat at a special count would, all else being equal, won by third One Nation Queensland candidate Fraser Anning.  The fact that Anning polled a massive nineteen primaries (second-last on the entire Queensland ballot) is irrelevant as in this case Anning would get Pauline Hanson's surplus.  An Anning victory, however, creates further complications because, as discovered by @swearyanthony on Twitter (which somehow qualifies as a Fairfax "exclusive"), Anning is currently facing bankruptcy proceedings (with a hearing as soon as August 22).  If Anning becomes bankrupt, he will lose the right to sit in the Senate while that is the situation.

Depending on the pace of the various cases, one possibility would be Anning winning the special count, serving for a short period, and then creating a casual vacancy to be filled by the party (including potentially by Roberts ... or for that matter James Ashby) The murkier prospect is if Anning becomes bankrupt before the HCA has finished with the Roberts matter.  Antony Green has said that a vacancy for Anning in this case would be treated as a casual vacancy (Section 15), and certainly this seems most intuitively consistent with what would normally happen with a mid-term vacancy.  However in this case Anning's position would be vacant not during his term of service but before it commenced.  Stephen Murray has written a very detailed piece giving many reasons why the Court could decide to exclude an ineligible candidate from a special count.

The transcripts of the Day case concerning Lucy Gichuhi may also be of some interest here.  Mr Kirk (appearing for Anne McEwen (ALP)) argued that if the High Court does seat an ineligible Senator as a result of a special count, then the decision appears to be final and beyond challenge; therefore, the court should assess challenges to ineligible prospective Senators before allowing them to win special counts.  Justice Nettle acknowledged that this was a possible issue, before disallowing the challenge to Gichuhi's eligibility from the McEwen team on the grounds that the challenge had been made too slowly and in any case appeared to have no prospect of success.

It's clear that a candidate who is not eligible at the original election is also not eligible for special counts  arising from it - indeed if they were, then in theory Rod Culleton could patch up his eligibility and have himself returned to the Senate on the special count for Scott Ludlam.   What is less clear is whether a candidate who has become ineligible in the meantime can contest a special count when they are not even eligible to sit in the Senate - and whether the High Court should treat it as analogous to a casual vacancy case or by special count if they cannot.  I think that remedying it as if a casual vacancy for the ineligible special count winner would be fairest in terms of respecting the will of the voters in the original election based on their view of the candidates who were then eligible to stand.

Simulations by Grahame Bowland have confirmed that even if the special count process leads to a countback that is minus four (!) candidates, One Nation's last line of defense Judy Smith would win Roberts' seat.  An oddity of the simulation is that although candidates Roberts and Anning polled only 96 below the line votes between them, removing both makes Smith's final position a whopping 2877 votes' weaker than Roberts'.  Moreover, this isn't just a case of voters marking Roberts' box and then stopping or making a mistake rather than following on to Anning and Smith - most of these lost votes are "leaking" to candidates outside the One Nation list before, in most cases, exhausting.  This is also happening on preferences arriving with Roberts from across the board - and mostly not One Nation votes.  I would not be too surprised if there is some form of geometric proximity-preferencing at work here, such that voters voting below the line who vote across parties for known names are more likely to stay high in the party lists rather than preferencing those well down them.  There may also be some horizontal "donkeying" at work.

Barnaby Joyce MHR (Nat, New England)

Status: Referred

Nationals leader and Deputy Premier Barnaby Joyce's father was born in New Zealand and preliminary advice is that he "may be" (ie probably is) a citizen of New Zealand by descent.  There is no indication he was aware of this or has taken any steps to either register that citizenship or renounce it.  Joyce has been referred by the House of Representatives to the High Court although the Government claims to be confident that he will retain his position.  On what basis they are so confident I am not sure.  If Joyce is declared ineligible, there will be a by-election for his seat, in which he fairly comfortably defeated independent former MP Tony Windsor last time.

Update: Contrary to advice from the earliest media enquiries, Joyce was found to be a citizen of New Zealand, though he has now renounced.  He will be reliant on the High Court creating some new exception, possibly following the Deane minority judgement precedent.

Senator Fiona Nash (Nat, NSW)

Status: To be referred

Nash's position appears to be similar to Joyce in that she has a Scottish father and therefore appears to be a UK citizen by descent.  Nash, like Joyce, is refusing to stand aside from the ministry but it will be interesting to see how that flies in the Senate where the Coalition doesn't have the numbers.

If Nash is ineligible, her countback will elect Liberal Hollie Hughes.  Nash was third on the Liberal-National combined ticket and has been elected for a six-year term.  If Nash is forced to vacate her seat, then if Hughes served out her term that would mean the Nationals lost a seat to the Liberals, who would gain a six-year seat (well, what's left of it) in the process.  The same would also apply if a revised order of election were preferred, except in this case Concetta Fierravanti-Wells would be upgraded.

Senator Nick Xenophon (NXT, SA)

Status: To be referred

Xenophon's father was born in Cyprus while it was a British colony and travelled to Australia on a British passport.  His mother was born in Greece and Xenophon has renounced Greek and Cypriot citizenship but not British, as he was not aware he had it.  If he is found ineligible his six-year term (absent of any rearrangement by the Senate) would go to the NXT number four candidate Tim Storer.  It is in theory possible given Xenophon's large below-the-line vote that this recount could unelect Lucy Gichuhi. I'm confident it doesn't, but a full simulation would confirm that it doesn't.

Xenophon's overseas citizenship is according to him "useless" in terms of actual benefits conferred that are not already available as an Australian citizen.  That Xenophon's father was apparently fleeing British control but doing so on a British passport makes the case especially bizarre.

Justine Keay MHR (ALP, Braddon)

Status: Not yet referred

At the time of writing Keay has not been referred to the High Court and no discussion of intention to refer her (which the Government could do alone using its numbers in the lower house) has been seen.  Based on material made public on Wednesday, Keay's situation appears to be:

* she appears to have been born with British citizenship through her late father
* she sent the appropriate renunciation form and passport on 13 May, it was delivered on 23 May and officially receipted on 31 May (all 2016)
* however the UK did not register the renunciation of citizenship until 11 July (apparently meaning she was still a dual citizen at the time of the election)

Keay's position appears to be much stronger than Roberts' in terms of having completed her end of formalities properly well prior to the close of nominations.  The only, but perhaps serious, question remaining in her situation (if the facts are as stated) is whether the Court might still rule that a candidate must take all reasonable steps to renounce their citizenship in time, and that this includes applying in enough advance to allow for normal processing time at the other end.

If any MHR is declared ineligible subject to Section 44, this triggers a by-election for their seat, which they can recontest if they are eligible.  It is received wisdom that electors disapprove of by-elections based on technical grounds and respond by returning the disqualified MP.  However, this has not been tested often, and the best-known test (Jackie Kelly) came at a time when the new government was riding well above its election result in the polls.  It is extremely improbable that Labor would lose any by-election to the government in such a case, but independent raids could be another matter.

A note re Julia Banks MHR (Lib, Chisholm)

In the above cases we know there is an arguable case of ineligibility - how strong or weak it might be being beside the point. I've wavered about giving Banks a section on a similar level to the others but decided that I'll only include MPs in the main list above if there is a clear basis for an argument for ineligibility - not just speculation.  There are many MPs who have not yet proven they are eligible by releasing documents.

Banks was born in Australia but her father was born in Greece.  People in this circumstance acquire Greek nationality (though at one point it is translated as citizenship) but have to apply for registration as citizens to become a "Greek Citizen".  The language is all rather baffling - it seems one can be a Greek Citizen who hasn't exercised a Right to Citizenship.

The Banks matter seemed to have been defused by a Liberal Party statement that the Greek embassy had said "that according to records, Julia Banks is not registered as a Greek citizen and also is not entitled as a Greek citizen".  However the language "entitled as a" is a bit odd and the statement has led to Labor questions about whether/when Banks renounced her supposed entitlement.  Also, all language used in these matters is being scrutinised for what it doesn't say more than for what it does - the statement doesn't establish that Banks has never been a Greek citizen or entitled to be one, only that she isn't one now.

The entitlement part comes from Section 44 including the words "entitled to the rights or privileges of a subject or a citizen of a foreign power", raising questions of whether someone is "entitled" to those rights if they would need to go through a process to activate them but, as apparently in Banks' case, haven't done so.  There is also the question of whether one can renounce an entitlement that isn't active (and what happens if one later wants it back).  These questions are outside my expertise.

MPs The Coalition Has Threatened To Refer

On Monday 14 August, Prime Minister Turnbull asked Opposition Leader Bill Shorten if he was willing to cooperate for the sake of convenience by referring any Labor MPs over whom doubts exist, allowing the High Court to hear all cases together.  Shorten refused, and during Question Time Labor moved that Barnaby Joyce not be heard and then also moved that standing orders be suspended to deal with the matter of Joyce not standing aside from cabinet.  (Both motions failed.)

As well as Keay, Leader of the House Christopher Pyne has now threatened that the government could refer other Labor MPs to the High Court if Labor continues trying to exploit the Joyce situation.  Those named are:

* Susan Lamb (Longman, Qld) - British father
* Tony Zappia (Makin, SA) - Born in Italy
* Maria Vamvakinou (Calwell, Vic) - Born in Greece
* Brendan O'Connor (Gorton, Vic) - Born in UK

No positive evidence that any of these MPs could be ineligible is known to me, however they have also not proved that they renounced dual citizenships before the election.  (See statement from Zappia.)

A note re Senator Nick McKim (Greens, Tas)

Senator Nick McKim (Greens, Tasmania) will presumably be taken off all reasonable suspects lists because he has presented evidence that his form was received by the Home Office in August 2015. He has not revealed exactly when his citizenship was formally cancelled, but even if the Home Office somehow then took most of a year to process the form, it could hardly be said he had not taken all reasonable steps to be available for the 2016 election.  In fact, McKim undertook these steps in preparation to serving a casual vacancy created by the retirement of Christine Milne, and his form was received five days before he commenced serving in the Senate.  All that is irrelevant now since it is only his place in the Senate as a result of winning in the last election that can still be referred.

McKim's eligibility is scarcely surprising, but will nonetheless be a relief to the Greens who could ill afford to lose any more Senators, but particularly not this one.  Because of the high rate of below-the-line voting in the Tasmanian Senate and the extremely close final seat result, it is very likely (although this hasn't been confirmed by testing) that a special count for either of the two Tasmanian Green Senators would see a seat lost to One Nation.  Indeed, the Greens would have reason to be nervous about any eligibility issues involving non-Green Senators elected in Tasmania, because it is in theory possible that a special count for some other Tasmanian Senator could "unelect" McKim.  (What the High Court would make of that is anyone's guess).  However, it does not currently appear (the huffing and puffing of an army of wishful "Abetz birthers" notwithstanding) that any Tasmanian Senators have eligibility issues.

A note about the government's majority

One of the government's MPs, David Gillespie (Nat, Lyne), is already facing challenge under another part of section 44 relating to conflicts of interest.  This, together with fleeting speculation about the citizenship of Julia Banks (Lib, Chisholm) (edit: and now Joyce) has led to more and more references to the government being at risk of collapsing should it lose a seat in the Reps.

In fact, such an event would be embarrassing, but almost certainly not fatal by itself.  In the days after the last election, the government received understandings on confidence and supply from three of the five crossbenchers - Bob Katter, Cathy McGowan and Andrew Wilkie.  Even if these assurances were withdrawn (Update 14 Aug: Katter's has now been withdrawn, for Wilkie see below), it seems unlikely the crossbench would unanimously decide to bring down the government and force an election. Such an election would see a landslide Labor win would consign the crossbench to irrelevance (quite aside from the ramifications for some of their own seats).

(Note: Wilkie's assurance on confidence and supply was qualified - he said he would not vote against confidence and supply unless "clearly warranted").

Moreover, looking at the voting record of the crossbench thus far, there would be relatively few issues of substance on which the loss of one seat would cause the government to lose the vote.  In theory, a crossbench gangup might see a bill pass through the House of Representatives and Senate against the government's wishes, most likely on banking reform, but if this only happened because the Speaker did not have a vote then there would be some case for advising the Governor-General not to sign the bill anyway.

There is, however, potential for the crossbench to exert pressure to bring about Joyce and Nash standing aside from the ministry until their status is resolved.

Section 44 Suspects (Other Than Citizenship)

Status: Gillespie being sued by "common informer"

I mentioned Gillespie above - he is being sued by his Labor opponent as a "common informer", which if successful entitles the plaintiff to a princely $200 for each day the ineligible member sits.  There is some unclarity about whether success necessarily unseats that member.  A by-election in Lyne could be unpleasant as it is in theory a safe seat but was formerly held by independent Rob Oakeshott.

Senator Barry O'Sullivan (Queensland) has also been the subject of media reports concerning business investments that may breach conflict of interest provisions, especially following the Day case and its unwinding of the Webster case from the 1970s.  If Canavan and O'Sullivan were both scratched, LNP number 7 out of 8, lawyer Dan Ryan, would step up to the plate.

Tuesday, July 25, 2017

Poll Roundup: Are Malcolm's Newspolls Worse Than Tony's?

2PP Aggregate: 53.2 to ALP (-0.2 since last week)
ALP would easily win election "held now"

Five weeks since the last Poll Roundup, things have not improved for the Turnbull government in opinion-poll horse-racing land. If anything, things have got worse.  We've had twin 53-47s to Labor from Newspoll and an Essential run of 52-53-54-54-53.  Closer 2PP readings from ReachTEL (52 then 51 for ALP) have arisen only because of the use of respondent preferences, and new entrant YouGov has produced a 49-51 followed by a 52-48 lead by a new respondent preferencing method off primaries that offer the government no more joy than the others.  (More on that later).  I'm not aggregating YouGov until later this week after its third poll has arrived, but my overall read of the others comes out at 53.2 to Labor this week.  Here's the smoothed aggregate:


The rot looks increasingly set in, with no large or lasting movement away from 53-47 since the start of the year.  As with the Gillard government, voters so far do not give this government credit for passing legislation or policy announcements. In polling terms, everything the government sends out comes back dead.  History doesn't say this position can't be won from, but it will probably need something large and unexpected to rebound in the government's favour.

Sunday, July 23, 2017

Reachtel: It's All About Lyons

Mercury ReachTEL Lib 43 ALP 32.9 Green 13.4 Other 10.7 (after redistributing "undecided")
Interpretation Lib 43 ALP 36.7 Green 10.7 Other 9.8
Most likely result right now based on this poll would be hung parliament (12-10-3) closely followed by narrow Liberal majority (13-10-2)
New aggregate of all polling: Liberal majority (13-10-2) with hung parliament (12-10-3) next most likely.

A Mercury ReachTEL of state voting intention is now out with a sample size of a whopping 2817 voters.  My initial comments on it will be very brief because I am playing in a chess tournament this weekend and also so that the Mercury get good commercial value for their polling data, which I expect can be found in full in the Sunday Tasmanian.  More detailed comments may be posted on Sunday night.  There was also a commissioned poll of Lyons this week - see Fishy Prospects In The Seat Of Lyons.

This new poll again presents a story that I have repeated so many times in state polling coverage over the last two years that presumably something entirely different will happen and it will all be wrong!  The overall picture of polling for some time has shown the Hodgman Government's majority hanging by a thread, given the virtually certain loss of a seat in Braddon and the likely loss of another in Franklin.  With the Greens struggling to hold their seat in Bass, the key question then is whether the Greens (or somebody) can knock off one of the three Liberal MPs in Lyons.  If that happens the majority goes, and it could be that the government goes with it.  There are a number of possible fourth-party/independent wildcards, but at this stage none of them are known to have their acts together.