Wednesday, December 13, 2017

Senate Section 44: The Term Lengths Issue Is Back

Once upon a time, a young chap in the Senate discovered that he was a dual New Zealand citizen and resigned.  Back in those quaint, far-off days (it was actually July this year), the fact that he was the holder of a six-year term was one of the most intriguing things about the situation.  With Ludlam's resignation merely the start of a citizenship issue that has now claimed eight MPs, with two more currently referred and questions about , the term lengths issue has been on the sidelines.  The High Court following Re Canavan simply appointed Jordon Steele-John to Ludlam's vacant place and it was assumed that that was all, perhaps because there wasn't an alternative.  But it turns out that was all because nobody suggested otherwise, and following a mention of the question by amicus curiae ("friend of the court") Geoffrey Kennett in the Fiona Nash case, the issue is back.

Firstly, although Steele-John is listed on Senate documents as having a term expiring in 2022, the WA Greens conducted a preselection (which he won) on the assumption that he would be facing the voters again in 2019.  Secondly, the issue has now been brought to the High Court's attention in cases dealing with the replacement of Senators Nash, Parry and Lambie (who all had six-year terms) and in the Lambie case it impacts on the future party makeup of the Senate.

As previously noted ("Majors Stitch Up Senate Term Lengths, Film At Eleven"), the Senate allocates Senators to short and long terms following a double dissolution.  It can do this on whatever basis it likes (including even a random or arbitrary basis), but has in practice always used the order of election method.  Currently, the order of election method means that the first six Senators elected in each state receive long terms and the next six receive the short terms.  The order of election method is a crude solution that can have very arbitrary results and could be quite unfair in some situations.  Nothing in the Constitution specifies what happens to the term lengths if someone is disqualified by the High Court, and one reason for that is that when the Constitution was written, the voting systems of the time did not allow for the reuse of the original ballot papers to determine a new Senator.

The cases of Ludlam, Nash, Lambie and Parry all have the feature that a Senator originally elected in the first six is set to be replaced by a Senator who is not elected in the first six in the special count to replace them.  I can identify at least the following four views on what the High Court and/or Senate can do about this:

1. As Section 13 of the Constitution only provides for the setting of terms as a one-stop process after each double dissolution, there is no power to alter terms beyond that.  The Court can only appoint new Senators to replace former Senators on a one-for-one basis, the new Senator inherits the term of the Senator they are replacing and the Senate can do nothing about this.

2. As the Senate's resolution on term lengths assigned those elected in the first six places to long terms and the rest to short terms, this resolution automatically by analogy applies to any replacements, with the order found in the special count determining who gets long and short terms, and neither the Senate nor the High Court has any power to do anything different.

3. By analogy with the procedure in Section 13, since the Senate sets the term lengths of the original Senators, it can also set the term lengths of a replacement Senator, and if this results in a Senator acquiring a different term length to the original Senator, then the Senate can also alter the term length of another Senator in order to make the numbers of Senators holding each term length even.

4. As the special count procedure overwrites the original election for a state with a new result, the original allocation for that state is void and the Senate reallocates terms for all the Senators from that state.  (Thanks to Andrew James on Twitter for suggesting this one).

Variants on these themes are also possible.  For instance, here's what I'll call the too-much-coffee variant of solution 4: since the original allocation of Senators might have been based on an agreement that a certain package-deal outcome across various states was fair, any disqualification allows the Senate to revisit the terms of every Senator, including those from other states.

Lambie replacement as a test case

The Nash and Parry replacements (ditto for Ludlam) only involve a new Senator potentially jumping into a six-year term from below Senators from the same ticket who keep three year terms.  This is slightly complicated in the Nash case by the presence of the two Coalition parties on the same ticket.  In the Ludlam and Parry cases I can't see much dispute that if it is legally possible for the Senate to rearrange the terms so that those at the pointy end of the ticket get the longer ones, then this is the right thing to do.  In the Nash case there is only the added wrinkle that since she was a National, perhaps the other National on the ticket (John Williams) might be said (at least by Nationals) to be best selected for the six-year term.

However the Lambie situation is where the problem becomes more important.  Lambie's ticket polled over a quota in primary votes, but included a massive below-the-line personal vote for Lambie, almost half of which failed to flow to her ticket #2, the mayor of Devonport Steven Martin.  In the special count to fill the Lambie and Parry vacancies, the order of election of the top six changes from:

Abetz (Lib), Urquhart (ALP), Whish-Wilson (Green), Lambie (JLN), Parry (Lib), Polley (ALP)

to

Abetz (Lib), Urquhart (ALP), Whish-Wilson (Green), Duniam (Lib), Polley (ALP), Bushby (Lib)

(with Lambie's replacement now elected ninth).

So if the order-of-election method is applied (either imposed by the Court or chosen by the Senate) then the Lambie Network is reduced from a six-year term to a three-year term, and the Liberal Party gains an extra six year term.  Firstly, the Liberals won only four of twelve Senate places in Tasmania to Labor's five, so they do not deserve to get three long terms to Labor's two.  Secondly, this gives the Liberals a more or less automatic seat gain in Tasmania at the next half-Senate election, at which they would be defending only one seat (Colbeck).

In my view, this is a strong argument against solution 2.  The Senate did decide to impose a particular principle in allocating terms, but one could hardly say it did that blindly on general principles and without awareness of what the consequences of that decision would be.  Indeed one would hope it would not have used the order-of-election method had the order-of-election method resulted in something massively favouring one party or another.  So it cannot be assumed that the Senate necessarily wanted the order of election method reused in a case where it might alter the balance of the Senate.  (One might also more flippantly say it's wrong to hold the current Senate to the will of the original Senators when so many of them have left!)

However, while the Court might decide solution 1 is the only legally viable option, it doesn't have much going for it on the fairness front apart from that.  Jacqui Lambie won a six-year term by virtue of personal votes that pushed her party over a quota.  Without those personal votes, no other lead candidate for her party would have done that.  She also would seemingly have been elected, based on the votes cast, had the election been for just six Senators (see the Section 282 count) although, as the stitch-up article pointed out, that method isn't perfect either.  It's not clear whether Lambie's replacement would win the Section 282 advisory count if one was held (Martin might still beat Lisa Singh, but it would be close).

Lambie's #2 and #3 candidates are both being challenged by One Nation, who are claiming that both are ineligible.  Should both be disqualified then One Nation, a party not even elected at the original election, would according to solution 1 inherit a six year term.

Solutions 3 and 4 are more flexible, but amplify a problem with the existing method of allocation.  It's simply not right that the Senate allocates terms itself (as is currently done) since this opens the door to partisan manipulation of terms to try to entrench an advantage.  On that basis, it's a further concern if the Senate is able to vote on altering terms every time someone is disqualified in the years after a double dissolution.  It's probably even more likely that partisan considerations would influence such a vote when it was held mid-term in the heat of battle over various issues of the day.  Probably, this isn't the Court's problem, but rather the Senate's.

Anyway those trying to guess which way the court might jump may enjoy reading the transcripts regarding Nash and Parry/Lambie.  The biggest hint we apparently get is that Nettle J describes the idea that the Court should decide who is elected and the Senate can reset the terms if it wants to (Solution 3 or 4, presumably) as "an attractive idea", and it might well be that everyone is going to agree and leave it at that.  This might then leave the question of whether Steele-John is a special case because of having been elected "in place of" Ludlam, as opposed to just being declared elected.

Meanwhile Tasmania won't be getting any new Senators until at least the Nash term lengths matter is resolved.  The next step in resolving that is a directions hearing on 22 December to discuss whether the Nash term lengths matter can be resolved by a single judge or requires referral to the full bench.  Even if that leads to a quick decision (eg that Molan and by implication Colbeck can be seated and the Senate decides how long for) the Martin matter will need to go to the full bench in the week of 29 January. 

I have been meaning to write about Section 44 in the Reps as well, but this article is long enough as it is, so I will leave that to some other time.  Comments about S 44 and the Reps are welcome on this article too.

Wednesday, December 6, 2017

EMRS Says The Wheels Are Falling Off

EMRS (Tas State) December: Lib 34 ALP 34 Green 17 JLN 8 IND/Other 7
Appears to be lowest Liberal primary for 11 years
Interpretation (based on historic skew) Lib 35.5 ALP 37.5 Green 14 JLN 8 Others 5

Modelled seat results based on this poll if election "held now": hung parliament with 10-10-4-1 (Liberal, Labor, Green, JLN) with next most likely outcome 9-11-4-1
Rolling aggregate of all state polls 12-10-3-0 
Rebecca White increases Preferred Premier lead over Will Hodgman to 13 points

If the December EMRS poll is to be believed (see also the helpful trend tracker), the Hodgman Government is currently headed for a Campbell Newman-like reversal of fortune at the 2018 Tasmanian state election.  Having won a massive victory from Opposition at the 2014 state election, the current poll suggests Hodgman's government, much like Newman's, could be going straight back where it came from and that election night could be carnage with incumbents losing all over the place - to Labor, the Greens, the Lambie Network and their own party.  On a like for like basis (which is rather difficult to follow through old EMRS poll reports) this seems to be the Liberals' lowest primary in an EMRS poll since August 2006.

Sunday, December 3, 2017

New England Washup and Bennelong By-Election Preview

I've decided to combine some post-result comments about New England with an overdue preview of the Bennelong by-election, which will be updated for any further polls that are published.  It's really not possible to talk about Bennelong now without talking about the former and whether anything seen in New England does or does not apply.

New England: Barnaby Bolts Back In

While Barnaby Joyce's re-election was always extremely likely given the lack of serious opposition, the scale of it surprised me.  Currently Joyce has 64.6% of the primary vote, a 12.3% swing to him, and a 73.6% two-party vote against Labor, a 7.2% swing to Joyce.  It seems that Labor are second, although in theory independent Rob Taber might overhaul the 4.4-point gap on the 17.2% of minor-candidate preferences.  Even if he does, his two-candidate result against Joyce won't be much better than Labor's.

My pre-election expectation was that Labor would not get much 2PP swing and that there would probably be a modest 2CP swing away from the result achieved by Tony Windsor in 2016, but that the gaggle of candidates running against Joyce might be able to take him to preferences and delay the result.  Instead Joyce has picked up a primary vote swing compared even to his 2013 result, when Tony Windsor wasn't on the ballot paper.

The main post hoc response to this result was to say that it is unsurprising given the nature of the campaign.  Once it was known that Tony Windsor was not running, and with Shooters, Fishers and Farmers and One Nation not interested either, it was generally accepted that the outcome was a foregone conclusion.  Joyce kept spending and promising money but other major players lost interest and devoted their efforts to Bennelong instead.  On this construction, the result in 2016 was abnormally close because Tony Windsor's presence in the contest created a perception that the seat was in play and resulted in major attacks against Joyce, suppressing both his primary and his two-party-preferred vote.

I am not convinced this is the whole story.  In 2013 there was also not a serious contest, but although the Coalition was riding high at that election Joyce did not do nearly so well.  Granted, at that stage he was not as prominent on the national stage as party leader.  I did question whether the idea of a sympathy vote for a member who is disqualified on a technicality would still hold up this long after the original election, but the result suggests at least a possibility that it has.

One further explanation we can scratch is that the government's acceptance of a banking Royal Commission spurred a swing to Joyce.  If this was the case there would be a much weaker swing in pre-poll voting, but this is not the case so far.

The result has been hailed as a record swing to an incumbent Government, but is not.  There are clear-cut cases of larger swings in Opposition-held seats - the Nationalists recorded a 12.6% swing in Labor-held West Sydney in 1921, but still lost, as did the Liberals in recording a 13.4% swing in Australian Capital Territory in 1970.  Also in the strange case of McPherson 1981 a 2PP swing of 16.2% in favour of the Fraser government is claimed (Labor finished third as the seat had become a three-cornered contest. An independent had directed preferences against the government in 1980).

Bennelong (Lib, 9.7%)

Assessment: Shaky.  Historic evidence favours Liberal retain, but treat this with caution.

Bennelong was historically a safe Liberal seat but boundary and ethnic changes over time have made it less so, culminating in the 2007 defeat of Prime Minister John Howard by Labor's Maxine McKew on a swing that was basically the same as the national swing and similar to that in surrounding seats.

John Alexander, a formerly top-ten ranked tennis player and later commentator, recovered the seat in 2010 and has outperformed the national swing at all three elections he has contested, even recording a 2% swing in his favour in 2016 despite the national 3.1% swing to Labor.  On Alexander's watch, Bennelong has therefore gone from 1.3 points more favourable to the Coalition than the national average when McKew won to 9.3 points more favourable now.  However, a swing to the Coalition (worth about three points two-party preferred) was also seen in the 2016 Senate results in Bennelong, so Alexander appears to have benefited from the Turnbull government's appeal to inner-city voters in the 2016 election.  If that appeal has since worn off more than the government's standing elsewhere then it is likely Alexander's margin from the last election is a bit inflated as a starting point.

Once factoring in current polling, the expected swing for a typical by-election would be quite close to the 9.7% target.  See my findings on this pre-Canning last year, and also William Bowe's (which include state elections).  From my own findings, an 8.2% swing against the government would be expected for a generic by-election, while William has it even closer to the score required.  However, this is not a typical by-election.  Irrespective of the sympathy-vote angle that may have been present in the New England results, one difference that is certainly significant is that when an MP is disqualified and recontests, their personal vote advantage is not lost.  On that basis, Bennelong should not be expected to change hands.

Perhaps recognising this, Labor have preselected a very high-profile candidate, the former NSW Premier Kristina Keneally.  Keneally's profile might make her perform unusually well - which may be necessary to get near winning the seat - but the controversial nature of her Premiership also makes her a high-risk selection and easy target with the possibility of a bad result.

The election has seen two gaffes and one bout of unwanted publicity for the Alexander camp.  Firstly in an image of his team supposedly making phone calls to voters, the phones were not connected.  Secondly, video surfaced of him telling a dirty joke with rape and racial references at a private function in the 1990s.  Thirdly, two days out the SMH reported that Alexander had failed to declare rental income from a country estate.

The Keneally campaign has come under scrutiny with claims about Medicare office closures and waiting times being strongly challenged by opponents, and Keneally's claims about Catholic education being vigorously attacked by journalist Samantha Maiden.

Another major campaign focus has been the electorate's large Chinese vote - 13% born in China, 21% with Chinese ancestry.  The by-election has been ethnically charged because of controversy about Senator Sam Dastyari's actions at the behest of a Chinese donor, which have forced him to announce his resignation, and also because of broader issues about foreign donations and influence in Australian politics.  However there have been claims of "China-phobia" against the Liberals as a result of the way they have pursued Dastyari and the disclosure .   I share the view that treating Chinese and for that matter other Asian voters as a homogeneous mass who are going to care desperately about the mud-slinging in this row is silly, but some will.  To the extent that Alexander has padded his margin by appealing to Chinese communities, he must be at some risk of losing some of that buffer.

A sleeper issue is Alexander's age and future intentions for the seat.  At 66 there's speculation he won't run again, although it is unconfirmed by the candidate.  Voters may be wondering about his commitment level if this is his final term.

There is reason for caution about whatever drove the New England result applying in Bennelong as well.  The New England result shouldn't be taken as a sign that the government is in good electoral health, as it is possible that the National Party is travelling OK and the Liberal Party is not.  Also, there is the obvious difference in campaign intensity to consider.  Nonetheless, even completely discounting anything we saw in New England, and completely ignoring sympathy-vote issues, historic evidence says the seat should probably be retained.  The question is whether the issues specific to this intense and rather singular campaign are enough to overturn what should be a buffer of a few points for the incumbent.

Among the other candidates, the greatest interest in the election is the comparative performance of the Australian Conservatives and Christian Democrats.  The Greens are also running but will not get much attention, and the remaining seven out of twelve are cluttering up the ballot paper and are not likely to get their deposits back.  Alexander has the benefit of the donkey vote over Keneally; however this is only worth a few tenths of a point these days.

Keneally's Past Ratings

Keneally is associated with the infamously bad Labor state government that was turfed with a massive swing against it at the 2011 New South Wales election.  There have been two myths about this - firstly that Keneally herself was not unpopular and secondly that Keneally's popularity was only dragged down by her own government.

The following were Keneally's Newspoll net satisfaction ratings as NSW Premier, in order: +15, +16, +10, -5, -12, -14, -27, -24, -28.  The last three readings came in early 2011 after Keneally's controversial decision to have Parliament prorogued, which was seen as avoiding scrutiny.

Other leaders whose doomed state governments were smashed have often, but not always, polled bad personal ratings in the leadup to that.  Some have polled somewhat worse, eg Anna Bligh at -43 and Lara Giddings at -37.  One notable exception: Carmen Lawrence was still +14 a few months prior to her party's thrashing in WA in 1993, and although there doesn't seem to be an election-eve Newspoll for her, she was fantastically popular as Opposition Leader after Labor's loss.  Another: Joan Kirner (Vic) had slipped as low as -31 but had recovered to only -8 by the time of her party's defeat in 1992. These exceptions show that being at the helm of a doomed state government does not necessarily translate to bad personal ratings.

Bennelong Polls

Two seat polls were published early in the campaign.  Seat polls in Australia are rather unreliable.

Galaxy found a 50-50 result with Alexander holding a 42-39 primary vote lead.  (That would not seem enough except that Bennelong has a very high Christian Democrat vote, 6% at the last election, and the CDP preferences are conservative).  ReachTEL had a respondent-allocated 53-47 to Alexander off raw primaries of LIB 41.6 ALP 34.5 GRN 5.9 ON 5.4 CDP 1.6 CON 1.4 Other 1.2 Undecided 8.3.  With the "undecided" splitting 33-27 to Alexander, that's 44.3-36.7 between the two leading candidates.  The religious-party scores look low and we now know there is actually no One Nation candidate.  (Thanks to the well informed reader who sent me the full primaries.)

The ReachTEL found favourable ratings for both Alexander (good 51.2 poor 15) and Keneally (good 41.6 poor 28.1).   A national YouGov found mildly favourable impressions of both Alexander (40-28) and Keneally (39-29) but this is of very little use.

In the second-last week of the campaign both sides agreed Labor was "behind" and Liberal internal polling was said to show about a 54-46 lead for Alexander.

On the last weekend, Newspoll doubled down on the earlier Galaxy result with a 50-50 2PP off primaries of Liberal and Labor 39, Green 9, Australian Conservatives 7, Christian Democrats 2 (others 4).  This close poll, contradicting the agreed narrative that the Liberals were ahead, is likely to reshape campaign coverage.  The result also highlighted a point of interest: the contest has big implications for the Christian Democrats, who might have to seriously explore merging with the Conservatives if they are thumped in this one.  The Conservatives result might be exaggerated by them being named in the readout, but if that is true it is also true for the Christian Democrats, and coming off over 6% last time they certainly don't want to go there.  Another point about this poll is that the sample size is small.

Overnight on the final Wednesday, a 53-47 Fairfax ReachTEL was reported.  So we get the same pattern we saw in the WA and Queensland state elections where ReachTEL is much better for the Coalition through the campaign (in both cases, ReachTEL converged at the end.)  However this time the reasons are probably different. Primaries were Liberal 40.4 Labor 35.7 Green 7 One Nation (not running and should have been removed) 2.6 Conservatives 6.2 Christian Democrats 2.3 other 3.4 undecided 2.4, so add about a point to each major for the undecideds.

A report on the Fairfax poll had 23.5% of voters saying they were more likely to vote Labor based on news of Sam Dastyari's Chinese connections and 28.4% less likely, but this polling format is a waste of time.  Polls in this format routinely generate 30% effect sizes even when the issues canvassed are trivial or even fake.  Even if voters respond honestly and accurately (which many won't) the poll doesn't say how much more likely.  This sort of poll creates a fake environment in which the voter is expected to consider their vote and a single issue in isolation - that's not how most voters decide their vote.

I will have live comments on the Bennelong count on Dec 16.  See also the Poll Bludger guide.

Grading The Result

Sean Kelly has an article here on the difficulty of grading the Bennelong result, especially if the Coalition wins.  He suggests that the result is only genuinely dramatic if Alexander gets such a scare that the result is unclear on the night, or if Alexander wins with a margin similar to last time.

Really the difficulty with marking this one is that we don't know what the sympathy vote for the disqualified MP is worth as there are so few precedents and their circumstances differ.  Here's my scorecard for 2PP results:

Below 50 (Loss by any margin): Self-evident disaster
50-51.9: Poor
52-55.9: Meh.  Inconclusive; can be spun any way you like
56-57.9: Good
58+: Excellent, and Labor has questions to answer.

Thursday, November 30, 2017

Not-A-Poll: Best Prime Minister Of The Last 45 Years, Round 4

Image result for gough whitlam image
(Image: Flickr:Gostalgia licence)

"The main sufferers in Australian society — the main victims of social deprivation and restricted opportunity - have been the oldest Australians on the one hand and the newest Australians on the other. " 

Three months ago, I started a multi-round Not-A-Poll to determine this site's choice for the title of Best Prime Minister of the Last 45 Years.  Each round, one Prime Minister (sometimes more) is given the boot until someone gets over 50% and wins.  Each round runs for about a month, so you can vote for different candidates from month to month if you want to.  Multiple voting is in theory banned, but still readily possible at low levels; adjustments may be made if required.  It is what it is, but at least it's preferential in a way, unlike, say, Australian bird of the year.

The winner of each round gets a photo and a quote on the top, except for the final round when photos of both candidates will go up together.  And there is an obscure rule that if there is a new Prime Minister voting stops for a month to give the new PM time to establish themselves as incredibly brilliant and win the contest. I mention that because there's chatter about that the incumbent (eliminated in last place in this contest with a ridiculously small vote) might not even last the coming sitting week.

Sunday, November 26, 2017

2017 Queensland Election Postcount (Main Thread)

Labor has won the election

Final result ALP 48 LNP 39 KAP 3 ONP 1 IND 1 GREEN 1 

Pumicestone won by LNP
Cook assumed won by ALP
Rockhampton won by ALP
Gaven won by ALP
Maiwar won by Greens
Hinchinbrook won by KAP
Macalister won by ALP
Burdekin won by LNP
Townsville won by Labor

This thread will follow the 2017 Queensland election post-election-day count in those seats that remain up in the air.

I'm in no real doubt now that Labor has won the election, in some form or other, but that form (majority or not, and if not with what numbers) remains to be clear.  They have 44 wins that I am regarding with some trepidation as solid, and one more ( Gaven) that I think they have probably won.  There are two more that appear to be going to "the left" in some form (Maiwar and Rockhampton), a close one in Townsville, and it is also worth noting that the indie who appears to be winning Noosa preferenced Labor. A vast amount has to go wrong from there before an LNP-ONP-KAP-indie government could be seriously considered, and even then it's not clear which way KAP would go.

This thread will follow the seats that I consider to be in significant doubt.  Where time permits and a seat greatly interests me, it may be given a breakout thread.  Seats appear in alphabetical order but when a seat is no longer considered of interest it will be moved to the bottom of the thread.  It will take me some time today to add all the seats.  Updates on specific seats will be added as time allows, but because of work commitments this is only likely to happen in the evenings, and probably not all of them.

Saturday, November 25, 2017

Queensland 2017 Live

Labor appears to have won the election, but majority status is touch and go.

Approx Labor 43 LNP 38 KAP 2 ONP 1 IND 1 Unclear 8 (including one ALP vs Green)

(From base of Labor 49 LNP 42 KAP 2:)
Labor Gains from LNP: Redlands, Aspley
Very likely Labor/Green Gain from LNP: Maiwar
LNP gains from Labor: Bundaberg and probably Burdekin (notional ALP)
Very likely ONP gain from Labor: Mirani
Likely IND gain from LNP: Noosa

Complicated: Hinchinbrook (LNP), Mundingburra (ALP - Labor favoured), Thuringowa (ALP - Labor favoured), Macalister (ALP - Labor favoured), Rockhampton (ALP)

Unclear ALP vs LNP: Pumicestone (ALP leads in ALP seat), Gaven (ALP leads in LNP seat)

Queensland: The Election Polls Forgot

Queensland Aggregate: Labor 35.9 LNP 33.9 One Nation 13.3 Green 9.6 Other 7.3
2PP off this aggregate: 52.5 to Labor
Seat projection off this aggregate: Labor 51 LNP 37 PHON 3 KAP 2 
(Greens may win 1-2 seats instead, but not enough reliable evidence re Greens' chances)
Uncertainties: limited polling dominated by a single pollster, change in preferencing method and likely preferencing behaviour

Nearly three years ago an incumbent Queensland government was leading about 52-48 in the polls and polling analysts generally though that it might lose but would probably be returned.  We were wrong; it did very narrowly lose, mainly because of a radical shift in preferencing behaviour by voters for minor parties.

Three years later, some of the problems are the same.  A radical shift in preferencing behaviour is possible in theory, because Pauline Hanson's One Nation was just a minor presence last election but is now gathering a double-digit vote.  Moreover, some polls have showed One Nation voters as much more likely to preference the conservative side of politics than they used to be - a situation consistent with the party attracting a lot of ex-Coalition supporters.

Wednesday, November 22, 2017

The Latest Senate Section 44 Cases

Time for another - and I doubt it will be the final - roundup of the issues created by ineligible Senators (or in one case, a Senator-who-never-was).  I have had many questions about the Lambie situation but today's resignation of Skye Kakoschke-Moore also requires detailed comments.

Hollie Hughes (Candidate, NSW - disallowed)

The High Court's decision that Hollie Hughes should not be seated in place of Fiona Nash (apparently because of her intermediate holding of an office of profit while the original election was still open, though reasons are yet to be released) creates a new issue.  Hughes was eligible at the time of the original election but her subsequent employment renders her ineligible to fill the position vacated by Fiona Nash.  The Commonwealth is waiting to see whether the court rules that Hughes was incapable of being chosen, or capable of chosen but incapable of sitting.  If the former, Hughes will be replaced by a special count (resulting in controversial Abbott backer Jim Molan becoming a Senator) but if the latter there is some thought (I'm not convinced) that it might be a casual vacancy.

Saturday, November 18, 2017

Queensland: A Hard Election To Model

Primary vote aggregate Labor 34.7 LNP 32.8 Green 8.8 One Nation 17.3 Other 6.4
If Newspoll/Galaxy preference assumptions are correct Labor should just win majority on current numbers (Projection: Labor 50 LNP 37 PHON 4 KAP 2)
If ReachTEL preferences are accurate LNP may win, though ReachTEL released 20 Nov is less clear on this

Note: Live comments on Queensland elections here on Saturday night.

It's taken me until the week before the election to get around to posting any analysis during the campaign for the 2017 Queensland election.  This is partly because of an unusually severe version of the usual problem: I've been extremely busy and there are just not enough of me to do everything I'd like to do.  It's also because this election's very challenging to model.  And, as I noted previously, the big picture isn't much help either.  The government has been chaotic, but the federal Coalition's turmoil is a massive burden for Tim Nicholls' LNP opposition.

Wednesday, November 15, 2017

Poll Roundup: Citizenship Chaos Sends Government To New Term Low

2PP Aggregate: 54.2 to Labor (+1 point in a week) - highest reading of term
Labor would win election "held now" with a large margin
Government has lost majority (for now) with two MPs recontesting their seats in by-elections

This week we've seen a highly unusual event in Australian political history: a federal government has lost its majority partway through a term.  This last happened in 1931.  The one-term Scullin government began its term with a robust 46 seats out of 75, but a by-election loss and defections to the opposition UAP and the Lang Labor split saw it whittled down to 35, following which it collapsed before the year was out.  What has happened to the Turnbull government, so far, is much less dramatic - two of its seats are vacant pending by-elections, and the government will recover majority status if Barnaby Joyce is returned, although it would then lose it again if John Alexander is defeated.

However, as the Section 44 eligibility issues continue to unfold (with the tabling of required evidence by December 1 expected to be the next step), we could well see more by-elections early next year in some much more difficult government seats.  The prospect of the government slipping into permanent minority, or perhaps even losing enough seats that it can no longer govern, is a real one.  There may also be by-elections in Labor and crossbench seats, but no incumbent government has gained a seat from an opposition in a federal by-election since 1920 so there would not be too much optimism regarding chances of gaining seats there.  My legally unqualified view, incidentally, is that the "hesitators" (those who filed to renounce UK citizenship too late for the process to complete by the close of nominations) are in trouble.  The references in previous cases to the taking of all reasonable steps as sufficient refer to a context in which a member cannot reasonably renounce an overseas citizenship, not one in which a candidate was needlessly slow about it.

How Accurate Was The Same-Sex Marriage Polling?

The abrogation of responsibility and waste of resources that was the Marriage Law Postal Survey has now concluded with a Yes vote of 61.6%, based on a very high turnout of 79.5%.  Every Australian poll on same-sex marriage in the last ten years has shown more voters supporting same-sex marriage than opposed, with the exception of a single fledgling ReachTEL in 2011, so this has been seen initially as another good result for Australian polls.  In contrast, non-polling "big-data" approaches based on social media analytics failed completely, with the EqualityPulse site mostly favouring the No vote until after the polls had closed and a Griffith University study bombing embarrassingly.  (Be wary of anyone who claims their methods predicted Trump would win - most who predicted him to win did so because they wrongly expected him to win the popular vote.)

This is being taken as another strong result for Australian polling, but the reality is not so snazzy, and more consistent with experience elsewhere.  Below are all the final poll results by each pollster that I could find.  (Some pollsters conducted several polls, typically finding little variation through the survey period.) The polls vary in methods - some asked about results based on those who had voted, some asked about the votes of those who intended to vote and some just asked a basic question about support or opposition to same-sex marriage.  One (Ipsos) appears to have asked about voting intention among those certain to vote only.  In many cases, inadequate public documentation means that it is not entirely clear what the pollster did.

Saturday, November 4, 2017

Pembroke By-Election: Live And/Or Post-Count

CALLED: Reliable scrutineering reports on Sunday that Siejka (ALP) will win easily with Walker narrowly beating Chipman for 2nd.

Sunday

Analysis: Still awaiting margins for the two scenarios. As Brad Stansfield has said on Twitter, it's a bit much to be saying first that the Liberals' attack on Chipman wouldn't work at all, then after the result that it worked too well. But if working means getting near winning, it was only a pyrrhic success. It seems that far from generate a sympathy vote for Chipman, the tactic actually worked in driving votes away from him and to Walker, but at the cost of driving Chipman preferences (in droves as predicted by Pete Lawler on Twitter last night) and possibly primaries to Siejka. The Liberals needed to make the final two to have any on-paper chance, but did they cause enough voters to switch their preference from Chipman ahead of Siejka to the other way around to the extent that they caused Siejka rather than Chipman to win ? 

Wednesday, November 1, 2017

Not-A-Poll: Best Prime Minister Of The Last 45 Years: Round 3

Image result for gough

"The Honourable Leader of the Opposition, Sir Billy Snedden, has broken his promise: the promise he made to me before the election. He promised not to tell any lies about me, if I didn't tell the truth about him."*




Two months ago I started a multi-round Not-A-Poll to determine this site's visitors' choice for the title of Best Prime Minister of the Last 45 Years.  The idea is that each month the Prime Minister in last place is eliminated and the rest continue until someone gets over 50% and wins.  There are rules permitting multiple exclusions in certain cases, to speed up the process a bit.  Each round runs for a month, so you can vote for different candidates from round to round if you want to. Multiple voting is in theory banned and adjustments may be made if I detect it, but there will probably be a lot of low-level multiple voting I can't detect or prevent. Comments about the merits of the contestants are welcome.

Tuesday, October 31, 2017

Section 44: Could Parry Peril Unelect McKim?

Warning:  Section 44 has now reached Wonk Factor 5/5.  

The Section 44 citizenship crisis affecting the Federal Parliament has reached a new level of electoral law murkiness today with the news that a Tasmanian Senator, Senate President Stephen Parry, is investigating whether he may be a UK dual citizen by descent.  Parry's father was born in the UK but moved to Australia as a child.  If it turns out Parry is ineligible, he is expected to resign from the Senate immediately, and following a referral the High Court would presumably follow the precedents set in Re Canavan regarding Barnaby Joyce and Fiona Nash and give him the flick.

That might all be the straightforward end of proceedings.  The possibility of a special count for Parry's seat (a recount of all votes as if the departing Senator had died before the poll) creates new problems in dealing with the replacements for ineligible Senators.   The reasons for this concern two unusual features of the Tasmanian Senate count: the very high rate of below-the-line voting and the extremely close result for the final seat.  Incumbent Nick McKim (Green) held off Kate McCulloch (One Nation) by just 141 votes.  McKim should have been re-elected easily but the Greens vote was damaged by the successful campaign to save Lisa Singh, who had been dumped to a normally unwinnable position by her party.  

Monday, October 30, 2017

New England By-Election: Prospects And Polls

Seat: New England (Nat vs Ind 8.5%, Nat vs ALP 16.5%)
By-Election 2 Dec 2017
Incumbent: Barnaby Joyce (Nat)
Main opponents likely to include Rob Taber (IND) and ALP candidate
Former incumbent and 2016 opponent Tony Windsor (IND) not contesting
Outlook: High chance of comfortable Nat retain

With the date of the New England by-election set it's time for a general prospects and polls post that I will update through the campaign as opportunities arise.  I may be pretty slack about this as Queensland will be a higher priority and I have a lot of other stuff on at the moment.  I won't be doing live coverage on the night because of previously booked air travel, but there will be a postcount thread if it is needed.

Circumstances and history

The New England by-election follows the disqualification from office of incumbent Deputy Prime Minister and National Party leader Barnaby Joyce, who was found to be in breach of Section 44 of the Constitution because he was a dual citizen of New Zealand by descent, despite having been born in the electorate of New England.

Friday, October 27, 2017

Section 44 Strikes, But The Government Hasn't Lost Its Majority Yet

Many news sites have now claimed that, in light of today's dramatic Section 44 disqualification of Barnaby Joyce from Parliament by the High Court, the beleagured Turnbull government has now lost its majority.

This is an exciting claim, but it isn't actually correct.

Pending the holding of a by-election for the seat of New England, the government will, when the House of Representatives next sits, hold 75/149 seats, with one vacant.  74 seats will be held by other MPs.  75 is larger than 74.  75 is larger than half of 149.  75 divided by 149 is 0.5033557... .  It is more than 0.500000.

The government's new and very temporary position is no different mathematically to that of the Cook Liberal government in 1913, which won 38/75 seats.  The Cook government is widely referred to as having had a one-seat majority.

Thursday, October 26, 2017

Glenorchy: What Happens If Most Of A Council Quits While It's Suspended?

Welcome to Glenorchy City Council.  You can be checked out any time they like, but you can never leave.

That was the vibe following recent developments in an already strange and long-running Tasmanian local government dispute, one that is daily creating newer and more exotic flavours of political-law popcorn for electoral ambulance-chasers like me.  My sympathies are with the poor ratepayers of Glenorchy, who are becoming literally poorer ratepayers as they are required to support this niche entertainment as it drags on into season after season.

To begin partway through about book six of Glenorchy Game of Thrones, the GCC has long been wracked with factional strife and hackery (which has often crossed state party lines in odd ways) despite having, at times, some very well regarded Mayors.  The 2014 election saw a team headed by then one-term alderman Kristie Johnston run on an agenda to "clean up Glenorchy and clean out the council".  They were endorsed by Denison federal independent MP Andrew Wilkie - not normally one to put his name to anybody else's bid - who denounced the existing Councillors in no uncertain terms.

Tuesday, October 24, 2017

Fifth anniversary!

Today is the fifth anniversary of me, as one observer had it, "ragequitting" Tasmanian Times and starting this site.  This Blogger site was something I set up just to make sure I had a new home right away, but as it's turned out, as basic as Blogger is in some regards, I haven't seen a compelling reason to move.

Sometimes people ask me why this site just bears my name, rather than being called something snazzy like "The Poll Bludger" or "The Tally Room".  I have simply not come up with any alternative name that I am happy with.  At one stage I was tempted by "The Morning Mist", after a fantastic old quote from Sir Joh about polls that "come and go like a morning mist".  But it occurred to me that people would then start unkindly calling it The Morning Missed whenever I got something wrong, and besides the name would have at least one unsavory connotation in German.

Wednesday, October 4, 2017

Marriage Law Survey Turnout Is High ... But Not That High!

(This article is being progressively updated through the survey - KB)

The first release of turnout estimates from the Australian Bureau of Statistics for the same-sex marriage postal survey has created some interest.  The ABS estimates that as of Friday 29 September, 9.2 million survey forms have already been received, 57.5% of all enrolled voters.

The ABS notes that this is an estimate only.  It may not represent the received yes/no vote as not every single one of the forms submitted will be valid (some small percentage may be posted back deliberately blank, for instance, or even with both boxes ticked.)  It is also unclear to me whether this estimate is based in some sense on a count of forms or on a count of envelopes, since there could well have been some cases of multiple forms being posted back in the same envelope, or of empty envelopes being posted (heck, I used to do this to junk-mailers who included a reply-paid all the time).  It also doesn't include anything that has been posted but was still on its way to ABS as of Friday.  So the figure is likely to be at least a few percent short of the number who have now voted.

Tuesday, October 3, 2017

Legislative Council 2017: Pembroke By-Election

This is my preview article for the by-election for the Legislative Council seat of Pembroke.  Incumbent Vanessa Goodwin resigned the seat today, Monday 2 October, and already we have two declared candidates, one possible candidate and at least one party likely to endorse a candidate.  The by-election will be held on Saturday November 4, with nominations closing on October 12 and announced the next day.  The winner will have the seat for just 18 months before they will need to defend it.  (I am unsure yet if I will have live coverage of this by-election on the night, as it clashes with a field trip.)

My most recent piece about the voting balance in the Legislative Council was here, but since that was written, Labor's Sarah Lovell unseated "independent liberal" Tony Mulder in Rumney.  As a result, three Labor MLCs and four left-wing independents now have a blocking majority in the Legislative Council.  Throw in a couple of relatively centrist MLCs who only vote with the government a shade more often than not, and the government is having great trouble getting its most contentious legislation through.  It's not all doom, gloom and obstruction for them though, with a bill to speed up the kunanyi/Mt Wellington cable car assessment process recently sailing through with only one vote against.  

Monday, October 2, 2017

Divergence In The Queensland Polls Is Caused By Preferences

Newspoll 53-47 to Labor, ReachTEL 52-48 to LNP - what gives?

A Queensland state election is coming soon, possibly very soon.  Electoral history tells us little of what to expect here. First-term state governments are usually returned, as are state governments that are of the opposite party to the party in power federally.  However, the former might not apply when the government was elected almost accidentally, and the latter is most at risk of falling over when a government has been a messy minority regime.  But if we turn to polling for the answers, whether the Palaszczuk government is cruising or crashing depends on which pollster you ask.

Through 2017 there has been a major divergence between the media-commissioned polls of ReachTEL and those by the Galaxy stable (sometimes branded as Galaxy, sometimes as Newspoll).  Three media ReachTEL polls have all shown the government trailing in the two-party-preferred contest (47% in February, 49% in June and 48% just now.)  Three Galaxys and a Newspoll have all shown the government ahead (51% February, 52% May, 51% August, 53% July-September quarterly).  On average, that's a 3.75-point two-party difference between the two stables, way too large over so many polls to be explained by chance or fluctuations from month to month in support.  Either the truth is somewhere in the middle and an election now would be extremely close, or somebody is right and someone's wrong.

Saturday, September 30, 2017

Not-A-Poll: Best Prime Minister Of The Last 45 Years - Round 2

PRIMARY VOTE LEADER FROM ROUND 1: Whitlam
EXCLUDED IN ROUND 1: Turnbull, Fraser
Rudd continues only because of irregular voting patterns for Abbott

Round 2 voting open in sidebar til 6 pm AEDST, 31 October

A month ago I started a multi-round Not-A-Poll to determine this site's visitors' choice for the title of Best Prime Minister of the Last 45 Years.  The idea is that each month the Prime Minister in last place is eliminated and the rest continue until someone gets over 50% and wins.  There are rules permitting multiple exclusions in certain cases, to speed up the process a bit.  Each round runs for a month, so you can vote for different candidates from round to round if you want to. Multiple voting is in theory banned and adjustments may be made if I detect it, but there will probably be a lot of low-level multiple voting I can't detect or prevent. Comments about the merits of the contestants are welcome.

Technical note: If you wish to vote on a mobile, switch to "View web version" at the bottom of an article.

Thursday, September 28, 2017

Poll Roundup: The Clock Strikes Twenty

2PP Aggregate: 53.6 to ALP (+0.2 since last week)
Labor would easily win election held "right now"

This will be a rather brief Poll Roundup by my standards, because apart from same-sex marriage polling (covered in a separate rolling post) there isn't all that much around to see!  We're five weeks on from my previous roundup, and in terms of the prospect of the government recovering before the next election, that's another five weeks down the drain.  Predictively, that doesn't mean a lot, but it is bad news for one particular member of the Coalition: the PM.  He edges another two Newspolls closer to matching the metric of 30 consecutive Newspoll 2PP losses that he used to justify the removal of Tony Abbott.  Just ten to go ...

Precisely what happens if these ten are all lost and the Coalition are still down the tube nobody knows.  Would the whole "thirty Newspolls" thing take on a life of its own in public perception of Turnbull's fate, contributing to even worse Newspolls, or would it only be of interest to the beltway and political junkies, and shrugged off as irrelevant by everyone else?  For it to be game over the very same week, while logical and fair, would seem too obvious, too artificial.  These bad polls seem so set in, and the Galaxy-run Newspoll so remorseless, that it's hard to see just what would end it.  A personal triumph on same-sex marriage? Worth some bounce surely, but enough for 50-50 after such weakness on the issue? War with North Korea? Maybe, though whether the more likely mechanism there is a rally round the flag or Newspoll being hit by an errant missile meant for Guam is not clear either.

Wednesday, September 20, 2017

Recent Polling On The Same-Sex Marriage Postal Survey

The national ABS postal "survey" on whether the law should be changed to allow same-sex marriage in Australia is now in its second week.  A number of pieces of polling have been published or alluded to since my last general polling update, but what do they really tell us about the outcome and how reliable are they?  At this stage there is still much that we do not know.  It is too early to be certain Yes has it in the bag, but the widespread narrative that support for Yes is crashing rapidly and that this is another Trump or Brexit coming is so far not that well supported by the evidence.

Public Polling: Ipsos

Firstly, the public polling.  Last week saw an Ipsos poll which buoyed some worried Yes supporters with a 70-26 Yes response, one of the highest Yes votes ever recorded in a poll in Australia.  Indeed, as far as I'm aware, this score has only been exceeded in a few commissioned polls and one Morgan-SMS (a suspect polling method) which did not use an undecided option.  The Ipsos also found a 70% Yes response among the 65% of voters who rated themselves as certain to vote, and found a gender gap with 72% of women and 59% of men saying they were certain to vote.

Tuesday, September 12, 2017

A Free Speech Problem With Marriage Law Survey Safeguards

Advance Summary

1. This article raises concerns about specific "hate speech" prohibitions in the Government's Marriage Law Survey (Additional Safeguards) Bill 2017.

2. This article argues that Sections 15(1)(a) and (b) place unreasonable constraints on free speech by making political opinions attributes that are protected from "vilification", contrary to the normal practice of anti-vilification laws.

3.The ability to express strong criticism of people who present offensive or unfactual opinions serves as an important deterrent against expressing such opinions in the first place.

4. Many aspects of the proposed Sections and the limited exemptions available are insufficiently clear to a lay reader and involve a novel area of Australian anti-discrimination law.

5. Sections 15(1)(a) and (b) should be amended so that they apply only to intimidation and threats and not to "vilification". 

6. If this does not occur, then the debate surrounding the postal survey is not an adequately and clearly free and fair environment for the frank exchange of opinions and criticism.

Monday, September 11, 2017

Response From ABS to Marriage Law Postal Survey Questions

On 16 August I sent the ABS a list of fourteen questions regarding the conduct of the Marriage Law Postal Survey, in particular regarding count quality assurance issues.  Some of the questions were answered in subsequent public debate.  The response below was received today, September 11, from Michael Wilson of ABS and is reproduced in full.  My questions as sent are in italics.  My thanks to the ABS for their detailed responses at this busy time.

I have added some comments of my own below the responses, and may add more later.

Saturday, September 9, 2017

Thylacine: Specimen Or It Didn't Happen

This week a group of Tasmanians (press conference hereclaimed to have seen and to have footage of a living thylacine, a species which has not been confirmed to exist since the last known specimen died in captivity on September 7, 1936.    No zoologist has yet accepted this extremely blurry footage as being of a thylacine, and many wildlife observers consider it is very likely to be a spotted-tailed quoll.

You can see a longer video here.  It contains unconvincing (compare actual accounts) "barking", the video above, something unidentifable nosing the camera, and a bunch of Where's Wally pics in which you can just make out what might be the eyes of something if you try very hard.  When I slow down the main video frame by frame I can see blurry paler patches on the animal consistent with the spotting on a spotted-tailed quoll.  The most interesting thing about the videos is actually the large number of lyrebirds (introduced to Tasmania) that they show.

I thought it might be of some interest to someone out there to outline my position regarding this poor animal the thylacine, and the intermittent circus of alleged "sightings", "photos" and "videos" surrounding it.  As usual, I am expressing my own view and not necessarily the view of any organisation I belong to or any employer I from time to time work for.

Thursday, August 31, 2017

Not-A-Poll: Best Prime Minister Of The Last 45 Years

(Round 1 has closed.  For results see Round 2.)

Round 1

Now and then we see newspaper polls rating the best PMs of the last few decades, or in the case of one Essential poll last week, the best government of the last ten years.  John Howard is a persistent "winner" of the first class of polling, but I've always believed he has an unfair advantage.  He tends to get a very high share of the Liberal vote with other Liberal PMs hardly getting any, while the Labor vote tends to be split up more between Hawke, Keating, Whitlam, Rudd and Gillard.  For that reason it's not clear whether Howard would beat all the Labor PMs on a head-to-head basis, although it looks like he probably would.

I've decided to run a similar Not-A-Poll exercise here in the sidebar just for fun over a period of several months.  The basic rule is that we keep going eliminating one PM at a time (perhaps more) until someone has over 50% at the end of a month.  The more complicated rules are:

Thursday, August 24, 2017

ReachTEL: Bob Brown Foundation Peddles A Poll Porky

ReachTEL (commissioned) Liberal 41.2 Labor 33.3 Green 13.1 PHON 4.4 Ind/Other 8.0
Interpretation Liberal 41.2 Labor 37.1 Green 10.4 Other 11.3
Most likely seat result based on this poll 12-10-2 plus one seat undecided between the three main parties
Disclaimer: Polls are snapshots not predictions.

I may get taken off their media mailing list for saying it, but the Bob Brown Foundation have released a grossly deceptive claim concerning their current ReachTEL poll to the Tasmanian press.  Question two of their poll and its results are as follows:

The question design is a bit odd, but I think it is OK.  The results are 38.3% support, 44.7% oppose and 17.1% don't know/not sure.

Tuesday, August 22, 2017

Poll Roundup: Newspoll Moves! It Is Alive! (includes same-sex marriage polling)

2PP: 53.5 to Labor (+0.3 since last week)
Labor would win an election "held now" with a large majority

Time for another roundup of the state of play in federal polling.  This week's exciting development was that Newspoll, after a record six consecutive 2PPs of 53-47 to Labor, finally moved by a whole point to 54-46!  I am especially excited by this because had this week's result been another 53-47, I was going to lead off with a mock Death Certificate, and now I do not have to.

This briefly took my aggregate to an equal term high 53.8 to ALP (I tweeted this as 53.9 but later found a very small error) but then Essential moved back a point the other way after two 54s, and the primaries in YouGov didn't do a lot, so I currently have it at 53.5 to ALP. That was the Coalition's winning lead in the 2013 election, and also just shy of what Labor had when Tony Abbott was removed.  

The strange 2PP results of YouGov continue to baffle - this week it has the Coalition with a 51-49 lead off primaries that would normally imply something like 53.1% to Labor.  I discussed this issue last time, and the average difference between YouGov's 2PPs and the last-election 2PPs for their primaries is now running at a massive 2.9 points.  As noted last time, it's possible that the current last-election 2PPs are overstating Labor's lead, especially because of One Nation issues, but it's highly unlikely that they're doing so by three points.  Much more detail on the YouGov mystery from William Bowe here.

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.

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.