The Age reports that the Federal Court has ruled on Labor’s appeal against its 12-vote defeat in the Victorian seat of McEwen at last November’s federal election, confirming Liberal member Fran Bailey’s victory. The report says the court overturned a number of determinations made on individual ballot papers, with nine ballots originally admitted deemed informal and 142 that were excluded deemed formal, but the effect was in fact to increase Bailey’s margin from 12 votes to 27. The judgement can be read here.
UPDATE: Reports such as this one from Ben Doherty in The Age, monopolised by Labor sources, led to a perception the court would most likely initiate a by-election or reverse the result. However, it may be that the court proved even more liberal in its determinations than Labor had counted on: 76 previously informal votes were admitted for Bailey against 66 for Mitchell, typically on the grounds that numbers were “reasonably discernible”. Only nine votes originally admitted were ruled informal, costing Bailey two votes and Mitchell seven. Most of these involved particular numbers being used twice for separate candidates, although Mitchell curiously lost three votes which lacked official markings (presiding officers’ initials and a watermark). One much-publicised complaint by Labor involved a ballot on which the candidates’ names were crossed out and replaced with those of V8 Supercar drivers, which was admitted as a vote for Bailey. Nothing in the table of determinations included in the judgement gives any indication that this was overturned.
UPDATE 2: Fran Bailey reckons “we have reached a stage in Australia where we must insist on voter identification” at polling booths, saying “the very close result in McEwen has shown up this particular anomaly”. Can’t see how, myself.
141 Comments
12 to 27 Billbowe
Corrected.
I’ve replrinted this from the previous post:
I actually think Labor is quite relieved Bailey hung on to McEwen. After the Gippsland shenanigans the last thing want right now is another by-election and another potential rebuff…
Labor not contesting McEwen would not have been an option? Can you imagine it? Labor challenges the McEwen vote to the Court of Disputed Returns to seek a re-election, only to not contest the election. Ha!
The Gippsland result was not quite as bad as reported. The TPP margin is now down to -6.16% not the frequently reported 7 or 9% . There was also about 8% of people who did not vote at the by election who voted at the general election.
At 62 it is unlikely that Fran has many more elections left. McEwan is ripe for the picking at the next election - and tax payers have been spared the expense of an irrelevant by election.
OOoops sorry I meant swing not margin.
I feel bad for Rob Mitchell though!
Does he still have a job with the Victorian State Government?
The AEC lawyers will be going through that judgement with a fine tooth comb and re-writing their scrutineers handbook. That is one of the good things about these sort of cases, they often clarify the law.
I’m wondering about Bailey’s statements calling for tougher voter ID regulations - she may have a point, but I can see that sort of thing turning into a U.S style opportunity to disenfranchise voters influencing results.
6 Progressive - no, Rob has been unemployed whilst waiting for the result.
The only good thing about this from his point of view is that he can now get on with his life.
I meant to say….”disenfranchise voters, unfairly influencing results.”
Optimist
I don’t think there is too much wrong with the ID regulations, this seems to be a clear case of ambiguity as to when votes are formal or informal.
We now have a bit more clarity - a good thing for all, no matter what side of the political fence you reside.
What’s wrong lads? The first whiff of grapeshot (ie Gippsland) and you all turn rabbit. V.disappointing.
I thought that it was very helpful of the judge to give a reason for each reserved ballot being accepted or rejected and his table at the end is the first time I have ever seen any guide as to how well scrutineers perform. For example it tells us whether the scrutineers from each camp picked up on an anomaly.
Interesting result - the Court has now accepted that it may itself act as the AEC and perform a recount (but only of reserved ballot papers), determining the validity of each reserved ballot paper, even though the Court also found that under the definition of the Act an “unlawful practice” had a occurred (a potential reason for declaring the election null and void). However, as noted above, it actually increases the enfranchisement as it ensures greater inclusion of ballots cast.
What troubles me in some way is that we are back to the whole “hanging chad” scenario with a court intervention into counting. While the AEC may yet look again at how it counts votes (and at the regulations that cover that) to cover some of the points raised, it does mean that future courts may be called upon to do the same as has occured here, ruling on admissability of individual votes.
Electoral law aside, though, I agree that this would in fact be a by-election the ALP would potentially rather not contest at present.
Oh Dear, ESJ and stewart J seem to have a severe case of disappointment at a tory victory. They obviously want some other form of tory win. Please suffer in silence.
ESJ
I note you have only recently returned to give us the benefit of your esteemed wisdom and wit.
How the gig at The Australian going?
He’s been reading the Australian too much by the look of his last comment. Dare we say Gippsland has created hubris in The Australian camp.
hah! I have to admit, I was expecting a bit of 2000 “Bush stole it!” type rubbish from you leftards. Instead, the sense of relief is palpable. Guess you guys are getting a trifle twitchy. Seven months must be some sort of record.
No A-C all the anger is from the right with Bailey robbing them of a byelection.
A-C
Rudd will be returned at the next election with a larger majority than he presently holds.
So says - (insert RWW of choice)
I suspect neither Kevin Rudd nor Brendan Nelson would want a by-election now in a genuinely marginal seat, so everyone except Rob Mitchell will be happy. As someone else has pointed out, it’s doubtful whether Bailey will want to go another round at the next election, particularly if it looks like Labor will win it.
McEwen is a classic outer suburban/rural seat that has a bit of everything, where grocery prices, interest rates and petrol prices would have been big issues - bigger than in Gippsland. Plenty of “working families” and commuters. A by-election would have been fascinating.
Oh well, renewal by byelection does have its drawback and this is one of them. Maybe they will have to look for another backbencher well past their use by date, tap them on the shoulder and mention retirement. If it in done in a serious voice and the explanation being ‘well we did win McEwen’, I’m sure people like Costello, Truss or Bruce Scott would understand.
ruawake,
Although I’d relish the opportunity to disagree with you, seeing that the Liberal Party holds the distinction of being the least successful centre-right party in the western world it’s pretty difficult.
That being said, the ALP government has been very underwhelming and if the opposition is remotely competent for the next 18 months it’s difficult to envisage Labor upping their vote from last year.
A lot of people were effectively locked out of voting in the election when the Lying Rodent changed the Electoral Act making it more difficult for the young, new voters, transients, renters etc to enrol.
As these demographics are not traditionally considered conservative voters, I wonder how many of such electors missed out in McEwen.
And would their numbers have made the difference needed for Labor to win?
“and if the opposition is remotely competent for the next 18 months”
That’s the bit of your theory that is in question AC. A big ‘if’ that with the exception of the Gippsland result nobody could have any faith in.
There was never going to be a by-election.
The court was ruling on each ballot as to whether it was formal or not and the count being adjusted accordingly. A result either way depending how they fell.
Grounds for a fresh election (illegalities/coercion/whatever) were never presented - only a finite number of votes for the judge to rule on - which he did.
But I guess it makes some here glow a little to imagine Labor losing again LOL!
26 Bryce, that is certainly the impression I got as soon as I read the judgment from the Federal Court on April 22. I just don’t like the idea of commenting on court cases while matters are before the courts but the judgment was pinned on Poll Bludger a couple of times for all to see.
There is so much rubbish going on here, on what is mostly a sensible site, it’s hard to believe. Please go to Larvatus Prodeo and read the five very comprehensive reports thus far on climate change by Brian. Then come back and debate how the hell we’re going to deal with it. The old politics of Liberal vs. Labor is over.
HSO
I beg to differ Liberal vs. Labor is the main game. If you think politics is a one dimensional you are the rubbish regurgitator.
“is a one dimensional game”
Stewart J, Courts of Disputed Returns have often done what this court has done, they just don’t get chance to do it very often. Last time I remember it happening was in Queensland in 1990, when after reviewing a series of disputed ballot papers for formality, the Court reversed the election result for Nicklin, the elected Liberal losing his seat and being replaced by a National after judicial re-count. I can think of half a dozen cases in NSW electoral history of the same thing.
The court has clarified the meaning of the act in this case and the AEC will have to take it into account. The AEC may interpet the law on formality, but the Court is the arbiter of what is actually legal. As an example, the NSW Coogee Court of Disputed Returns case in 1974 completely re-interpeted NSW electoral law on what was a formal ballot. Parliaments can then legislate to overturn judgements by clarifying the meaning of the law, as NSW did 2 years ago to finally overturn the Coogee judgement (some things never happen quickly). The Courts, not the AEC, are the arbiter of the law’s meaning. The AEC may do all it likes about looking at the laws, it’s now up to legislators to act if the Court has done something that was not the intent of the Parliament.
I really don’t think you should compare it to the US hanging chads fiasco which eventually ended up as a constitutional case. This case is entirely one of whether the administration of formality rules under the electoral act is in accordance with the written law. I can assure you, the AEC will be happy to have the judgement as it clarifies the law. The Labor and Liberal Party were putting up competing interpetations of the formality rules and the Court has now ruled on every case, which leaves the AEC with better clarification next time there is a close count.
Ruawake, It is my point, in a sense. The LNP’s playing of populist politics is just playing with death of many species, maybe our own. The planet will survive, probably, but we may not. If Labor can garner the support of the population to do something in our neck of the woods, and provide leadership, this would be a good thing in my view. However, the reality that confronts us is beyond ordinary analysis. Do please read Brian’s work.
After examining the 640 disputed ballot papers Justice Tracey reversed the result of 151, comprising of:
Bailey votes becoming Informal - 2
Mitchell votes becoming informal - 7
Informal votes becoming Bailey - 76
Informal votes becoming Mitchell - 66
In otherwords the decisions of the Australian Electoral Officer for Victoria were reversed by Justice Tracey on 23.5% of all disputed ballot papers.
I reckon that is a real worry. I hope someone looks very closely at this and can determine whether the problem was the law or human error.
Ruawake @29/30
That’s the core of the matter.
Politics has almost always been a case of us v.them, with the rare suspension of hostilities during national crises; vis. major armed hostilities.
In my opinion we are now fast entering such a crisis; climate change, which is potentially more damaging than any war to date.
It’s time to cease this puerile traditional nit-picking and to get on with getting to grips with what is an impending global disaster
Next year may well be too late.
I think the term “Illegal practice” might be legislated out of the Act after this judgement. The judge had plenty to vent his spleen about with this one.
9 The term “illegal practice” has appeared in the Act since its inception: see Commonwealth Electoral Act 1902 (Cth), ss 173(ii), 180 and 181. As originally used it referred to criminal conduct such as bribery and publication of electoral material without a statement that the material had been authorised by a named person. The continued use of the term is unfortunate. It is apt to suggest conduct which involves moral turpitude and conduct which is criminal in nature: cf Shaw v Wolf (1998) 83 FCR 113 at 133. “Illegal practices” is, however, now defined, in s 352(1) of the Act, to mean a contravention of the Act or the regulations made under it. A failure to comply with a statutory requirement will constitute a contravention of the relevant provision: see s 22(1)(j) of the Acts Interpretation Act 1901 (Cth). Inadvertent errors, made by those charged with the administration of the Act, can, therefore, amount to “illegal practices”. Bona fide but mistaken decisions by Returning Officers to admit or reject ballot-papers may, for example, amount to “illegal practices”.
I keep hearing and reading that Rudd (not Mr. Rudd or the PM) is all talk and no action or that he is all symbolism and tokenism. But what is it that he or his government should have done in the seven months or so that they have been in power?
Could the coalition supporters who contribute to this site enlighten me (and the rest of us) as to what he should have done by now?
Well if Mr Rudd has no agenda why should the “coalition supporters” nominate one for him enjaybee?
Another interesting point the judge made in this case is the role of the court is ‘the correction of unreasonableness’ rather than whether the votes are formal or not. Paragraph 23
• the AEO has the assistance of scrutineers when making his or her decisions. The Court does not receive such assistance and this is suggestive of a role restricted to the correction of unreasonableness rather than de novo consideration of the formality of reserved ballot-papers.
• correction by the Court of unreasonableness is more likely to be conducive to the expedition mandated by s 363A of the Act than a process of merits review.
Enjaybee, as others have said, if Rudd walked over Sydney Harbour, he would have been accused of being unable to swim. Again, I would request that any one wanting to discuss what needs to be negotiated politically had better understand what is actually happening in terms of climate change. For a very well researched and well put together series , it’s hard to find better. (Brian at Larvatus Prodeo - can’t do the link thingy)
We don’t need a meteorite to wipe us out. We’re perfectly capable of doing it ourselves. So, if Nelson, only there by virtue of the climate change denialist, Minchin, keeps up the populist garbage of 5c. drops in petrol prices, it’s going to make it very difficult for the gov’t to get anything through the Senate.
I meant my earlier post about this issue to point to a need for all of us to educate ourselves about it, and for it, necessarily to be beyond the ordinary Labor/Liberal stuff that goes on.
In the words of Tom Lehrer, “We will all go together when we go”. The cockroaches might evolve into something interesting?
Ed, 635 out of 100,000 votes were in dispute. The Court has allowed certain votes in this case by clarifying the words of the act. Much of the case has been about the section that says “A ballot-paper shall not be informal for any reason other than the reasons specified in this section, but shall be given effect to according to the voter’s intention so far as that intention is clear.” The AEC appears to have been using a test of ‘no doubt’ which the justice refers to from previous cases. But in this judgment, say on ballot paper 96, this justice makes rulings like “The figure in the fourth square reasonably resembles a 4.” The difference between ‘no doubt’ and ‘reasonably’ is how these cases turn sometimes. This case appears to give future Returning Officers a little more wriggle room.
I must read this case in detail before my appearance before the Joint Standing Committee on Electoral matters. I argue they need to looses the formality rules so we don’t get tied in knots about formality. Many of these votes had a clear first preference for either Bailey or Mitchell, and were being knocked out because of errors in preferences that could never count. It is stupid to have rules that disallow a vote because of an error in a preference that is not actually required to be counted.
s about whether the intent was clear. There is a lot of comment in the judgement about Electoral Commissioner has been going on interpetation of what
So what happened to the ballots with the racing car drivers names? ruled in or out?
Antony - from what you are saying it would appear that a first preference will count even if the second onwards are unclear. That makes sense. Would this apply to a senate ticket where a BTL vote can be discarded after the first 40 or more numbers are in sequence but then there is a mistake (according to the Electoral Officer at my booth at the last election)?
E.S.J. Have you read the articles I suggested? If not, you will have no credibility with me. This nit picking rubbish is exactly what I was pointing at. Do you think being of charge of the “Titanic” i.e., planet earth, is something that the market will deal with? If so, provide evidence.
The electoral is consistent with these five principles:
49 The petitioner and the first respondent sought, respectively, to distil a set of “principles” and “rules” which should guide or inform the determination of whether particular ballot-papers were formal or informal within the meaning of the Act. The petitioner identified seven “principles”. In descending order of precedence they were:
• The ballot, being a means of protecting the franchise, must not be made an instrument to defeat it. (Principle 1)
• Doubts as to form should be resolved in favour of the substantial right to vote. (Principle 2)
• Each ballot-paper should be given effect according to the voter’s intention, so far as that intention is clear. (Principle 3)
• When a vote is recorded in writing, the writing itself is the only proper evidence of the way in which the elector intended to vote. (Principle 4)
• As with the interpretation of any other document, the ballot-paper should be construed as a whole. (Principle 5)
The Electoral Act
Jen - no, there has to be a correct sequence of preferences, that is in another provision. But rather than adopt a ‘no doubt’ in relation to interpeting a sequence of preferences, the Judge refers to ballot papers that ‘reasonably resemble numbers’. In reasonably resembling numbers, the Judge is saying there is no doubt the intent is clear.
Though I’l bow to steve who clearly has a stronger legal background than me.
Jen #41
Good question Jen. The ballot with the racing car drivers names had to be ruled out. Conversly the ballot where the 8 was deemed to be two zeros had to be ruled in. The intention of the voter was clear. Surely.
That is why I raised the issue of human error. Those rulings by the Australian Electoral Officer appeared to be ludicrous, even though I acknowledge Antony’s point about the difference between ‘no doubt’ and ‘reasonably’.
Common sense didn’t appear to be that common.
ESJ at 37
Perhaps you have none to offer. Methinks that coalition supporters are the ones full of nothing but hot air.
46 Don’t bet on it Antony, I just enjoy picking through this stuff.
This is truly surreal. Discussion of correct sequencing of preferencing? The legal interpretation from Steve?
Do any of you understand what the effects are of climate change of the order that is already evident?
HSO, think you are on the wrong thread, this one is the McEwen by-election thread. I think you want the Newspoll thread - there is nothing surreal there.
I hope the Labor Party looks after Rob Mitchell before 2010, I think he’s owed a state seat or a job with one of the federal Victorian MPs.
Oopa sorry the by -election was the surreal option.
Ed, it’s not a matter of commonsense, it’s a matter of law. You have two parties backed with legal advice arguing with the Returning Officer. The number of votes involved was tiny, the case was always going to go to the Courts. Your making your comments based on reading the judges remarks, not from seeing the ballot papers themselves. You can’t say it’s human error because you don’t know what the ballot paper looks like and you don’t know the submissions made by the two parties at the time the Returning Officer made the decision. Maybe one side had a strong argument and the other had a poor one. The Returning Officers are adminstrative officer, not judicial officers. They don’t get their own legal counsel in making a decision.
I never understood what all the fuss was about with the race car driver ballot paper. It’s seems pretty plain to me that it’s a legal ballot.
Voters are allowed to scribble on their ballot papers, so long as they don’t identify themselves. So if the numbers are filled in properly then the ballot should be counted.
I bet plenty of ballot papers over the years have been thrown out for this when they should have been counted too.
54″So long as the resulting figures are intelligible the ballot-paper will be treated as formal. Some voters, having placed a number in a particular square then either realised that he or she had made a mistake or changed his or her mind. Instead of obtaining a new ballot-paper the voter has overwritten the original number with a different number. Where this has occurred and the overwritten number is clearly legible I have treated the overwritten number as expressing the true intention of the voter.”
David #55
If the voter crosses out a candidate’s name and replaces it with another name how do you know the voter’s intention is to vote for that candidate?
I would have thought that the voter was deliberately defacing the ballot paper to make a mockery of the vote rather than expressing a preference for their vote.
Then again that is something the judges decide.
But David, if you crossed out all the names and wrote in other names, yes the numbers in boxes are correct, but is the intent clear? Having crossed out the names, is it still clear that the voter intended to vote for the candidates they crossed out. If it was just one name crossed out and that candidate was listed last, the intent can be easily inferred. Remeber there are countries that still vote as we once did in Australia, where you cross out the names of the candidates you are NOT voting for. There are states in America that still have write-in ballots, where you can write in a candidate you wish to vote for.
As for names on ballot papers, that is not necessarily true. Courts have ruled in the past that if there is only one person on the roll with that name, it is informal. But if there are many people on he roll with the same name, then the person has not identified themselves because you still don’t know who they are.
Thank you Steve at 51. I’ll just bugger off and try and figure out why probably the most monumental human challenges there have been for most of the species’ existence aren’t included in this political discourse, and how we’re going to try and address this, and what import this might have for the politics of Australia and indeed the world, elsewhere. I’m just scratching my head about why you wouldn’t want to inform yourself about something so monumentally and essentially political, and how this may effect politics in Australia and the world.
BTW, I like the idea of Downer going to Cyprus. If anything is going to unite the Greeks and Turks in Cyprus, it’ll be Downer.
BTW, I like the idea of Downer going to Cyprus. If anything is going to unite the Greeks and Turks in Cyprus, it’ll be Downer.
heheheh Hadn’t thought of it like that, but an interesting point.
See the Newspoll thread for a thought about the GW issue
This was another change in this case where in the past initials were seen as a no no on ballot papers this judge was quite happy to accept them.
69 “Accordingly, in my opinion, the unauthorised markings or writing on each of the three ballot-papers do not allow the voter to be identified. It follows that, there being no other basis upon which any of the ballot-papers might be considered to be informal, each of the ballot-papers is formal and should be admitted to the count.”
One other point seemed to worry the judge in the case of close contests, too.
85 “One matter which may require attention is whether any double voting which may have occurred was likely to have affected the close result of the election. I will give directions with a view to dealing with these issues as quickly as is possible.”
Bloody hell, sorry all and particularly, William, and thanks to Mayoferal. Wanders off stage left, still shaking head, this time feeling silly.
Steve - I think now the margin is increased, the tiny number of multiple voters will no longer matter.
I want to plug the link to a very funny story on Canadian MPs misbehaving. It’s on my blog at http://blogs.abc.net.au/antonygreen/
I must say that after reading this document reasonably closely twice that this judge has probably done more for the updating of the Electoral Act then anything I have seen for a long time. By deciding to take the view about ‘reasonableness’ he has allowed bits and pieces that have crept in over the years and become dogma to be examined and disguarded. The judge gets a thumbs up from me for a job well done.
63 Antony, true in this case but I think the judge was wanting to ensure that the thinking is right for future cases.
Antony Green
I will of course bow to your far superior knowledge of previous cases (but will have a look at the two you mention…). However, my comment re “hanging chads” is really about a philosophical point regarding the use of the law. In this case the court has looked at the ballots in dispute and made a determination based on their re-examination. As you say, the court is empowered to do so, but aren’t we essentially just using a “higher returning officer” determination. As you point out, the Coogee case completely re-interpreted formality - I am assuming in a way that was neither intended or expected. While I understand the necessity of black-letter law in these instances, I am also reminded that (drawing a long bow, take a deep breath) that the High Court has in the past taken great leaps based on actively interpreting the intent and purpose of law (and the Constitution) as opposed to simply reading what is written on the page.
That said, we do enter the tricky, but all too necessary, area of voter intent. I don’t dispute at all that the AEC will be happy with a greater clarification of the current laws - as it will make their job both easier (well, you’d hope so…) and less open to disputation. but I some times wonder if we lose the spirit of what’s intended by a voter in trying to interpret their every wish (although maybe I’m just reading too much into someone writing down the names of V8 Supercar drivers).
And to HSO - noted the articles. And yes, this discussion has elements of the farcical (how many angels can fit on the head of pin etc), but it is still a not unreasonable thing to engage in - we can (and I hope will) deal with climate change tomorrow.
Oh, and Steve, I don’t know how you thought I wanted some other form of tory victory. I was just observing that maybe the federal government wouldn’t be too keen on a by election in McEwen, especially on top of the reports they were considering not standing in Mayo, and that apparent decline of PM Rudd’s popularity (from stellar to merely human scales, at any rate!).
stewart j apologies if that was not your intention but I see no good reason why Labor will not contest Mayo and I don’t think Labor will back off from contesting by -elections in any seat including Higgins or anywhere else.
The Queensland Liberals chose not to run a candidate for Brisbane Central not long ago and were loudly condemned for their tactics, Rudd is well aware of it. Win one unexpectedly and the boot is suddenly on the other foot too.
Antony @ 64
Ouch! Rolled up copies of Hansard was it? And yes, what fun would ensue if that happened one evening in Reps…
OMG, What if they started tossing cardboard cut outs of Kevin and Iguanas? Well, you couldn’t take the place seriously, could you?
Ya couldn’t miss Hockey -:)
How about the collected wit of Phillip Ruddolk flung about the House?
Is there a more detailed breakdown of the McEwen judgement in terms of which ballots were ruled in/out? Presumably Labor and Liberal each disputed a number of ballots. How many of the ballots disputed by Labor went their way and how many disputed by Libs went to them? This would perhaps reflect on the competency of the cases put by the parties and may add some fuel to the fire in the Vic Labor office.
Winston, at the bottom of the ruling is a table listing each of the 643 ballots which were sent to the state electoral officer for adjudication. It indicates the ballots disputed by each side and whether the dispute was accepted by the other side (which they were quite often in Labor’s case). The columns on the right show whether the court’s ruling kept votes with Bailey (B to B) or Mitchell (M to M), ruled informal votes which had previously been given to Bailey (B to I) or Mitchell (M to I), or turned informal votes into votes for Bailey (I to B) or Mitchell (I to M).
http://www.austlii.edu.au/au/cases/cth/federal_ct/2008/692.html
Antony, the same judge made this important point in the April 22 case that is cited in this document. Well worth getting your head around before going to the inquiry.
9 “The result is that no section of the Commonwealth Electoral Act, nor any rule under that Act, has been discovered which can be held to give this Court of Disputed Returns the power to make such an order as is sought on behalf of the petitioner. It may be that such a power is highly necessary, and that the ends of justice are frustrated by its absence. It seems strange that in a proceeding which involves the question of the proper conduct of an election, when information is sought which exist only in the rolls and other documents in the custody of public officers, a petitioner is not entitled to the discovery that is here sought. But the remedy is in the hands of the legislature, not those of the Court.”
The April 22 part of the case is here:
http://www.austlii.edu.au/au/cases/cth/federal_ct/2008/426.html
The sticking point in the Electoral Act even after it was amended a couple of times in the last century are the words (except ballot-papers). In the second reading speeches no explanation was given for these words being there and this judge thinks that they would be better taken out.
http://www.austlii.edu.au/au/legis/cth/consol_act/cea1918233/s360.html
In a nutshell, if the words (except ballot-papers) was not still in the Electoral Act then this whole thing could have been sorted out without the need for the first court case and would have been resolved much sooner than it was.
Nobody knows why the words were put in or why they should not be taken out.
Interesting that there is no mention of the 40+ incorrect ballot papers distributed by the AEC at the election. Incorrect in that McEwen voters in joint booths were given ballot papers for the neighbouring seats i.e. Scullin, Indi etc
Surely this still leaves huge doubt as to the outcome of this particular seat.
I think Bailey’s claims “This is a system that really has to be overhauled. I think the very close result in McEwen has shown up this particular anomaly.” is rather quite bazaar.
She used a similar point in 2001 when her margin dropped to 1% but mysteriously never sought to confirm her views in 2004 when the margin went to 6.42%
Eight people voted twice in McEwen in November, according to the AEC. None has been prosecuted. Ms Bailey said there was also a high percentage of absentee votes, including 2000 votes cast in one booth in a neighbouring electorate.
Is that because the Wollert booth (where the greatest number of new housing development has occurred) was not advertised so most people went back to the Epping booth where it has be traditionally been held?
Edward StJohn Says:
July 2nd, 2008 at 9:20 pm
If you haven’t worked out Rudd’s agenda then your pretty dam slow.
Antony,
You mean like if the voter filled in the boxes before deciding it wasn’t how they intended, and then rather than crossing out and re-doing the numbers (or more sensibly, getting a new ballot paper) they crossed out the names and re-wrote the candidates’ names in positions to reflect their desired order?
Hmmm. That does give me pause for thought.
But my basic point was that voters are permitted to scribble on their ballot paper. And it’s not apparent that scribbling over the top of the candidates’ names crosses any line in that regard.
Well yes, things might be confusing for recent immigrants who are more familiar with other voting systems. But ultimately they cast their votes according to this system. A football fan more familiar with the Brownlow Medal system than instant run-off voting might cast his vote directly opposite to the way he intended. But there’s not a lot we can do about that.
Well that’s interesting. (I’d probably have to include my middle name to invalidate my ballot.) Actually I did use the verb identify, not name. So that means the courts have taken a very strict interpretation of what it means to identify oneself.
Interesting that Bailey was a member of the government that made huge changes about whether a prisoner could vote, changed the time for people not enrolled to enroll when an election was called but couldn’t produce any worthwhile or workable electoral reform.
She then gets involved in a court case about the power of the courts to sort out her own win and the best she can do is come up with a red herring about voters needing ID. They could all turn up with 50 pieces of ID but if the Electoral Act is still flawed then the same result will be produced following the court case after the next close election.
“I think it has been a terrible shame that everyone has been put through this for eight months,” she (Fran Bailey) said.
“And of course the costs, the costs I’m led to believe are probably around half a million dollars, and this is only of course been brought about by the ALP not being prepared the accept the umpires decision.”
How many Workchoices mouse mats would that have paid for?
83 “the costs, the costs”
ruawake, the court will tell us about these on Monday. Of course, the costs have not only been immense and also for the most part avoidable but the judge has sent a copy of the two judgments to the Special Minister of State and I look forward to Bailey crossing the floor to vote belatedly for new legislation which will limit these costs and delays in the future.
Stewart J,
I still don’t accept the point about comparing with the USA. There they did not have a court of disputed returns to act as a single legal back-up for the electoral authorities. And that is because in the US, there is no one authority conducting Presidential elections. The elections are conducted by counties, which is why the ballot paper and the number of elections held on the day varies from county to county. It also means there are multiple levels of county, state and federal courts as the legal appeal for election conduct. The Florida count ended up in multiple courts simultaneously, many with over-lapping authority. The Democrats were trying to force a re-count in counties where they thought they would do well, but not in other counties. That is in the end why the Supreme Court made an eventual judgement about equal treatment, along with concern about the Constutution specifying a count must be complete by a certain date.
Compare that with Australia, where there is one court of appeal, the Court of Disputed Returns. If in one of these cases, a constitutional issue arose, the matter can be referred to the High Court for adjudication in terms of the Constitution. But in this case it was an issue of the administration of the matter. You may dislike the Court becoming a ‘higher returning officer’, but an AEC Returning Officer cannot make a ruling which stands in law. Only a Court can do that.
In the end, the Florida count in 2000 sufferred a fundemental flaw in that the margin of victory was less than the margin of error of the counting equipment. And that margin of error was for properly serviced equipment, and it became evident in the court case that some counties had no idea that they needed to empty chad-boxes. The over-lapping nature of American electoral law has created an array of election law specialists. Our system where elections are always conducted by a single authority with a single court of appeal makes the whole process much simpler and clear cut. And our use of paper ballots makes it much easier to re-count if we have to. And 8 multiple vote in 100,000 is a tiny margin of error.
Antony, it was an interesting part of the amalgamation of councils in Queensland last year that the elections held in Queensland in March this year were all conducted by the Queensland Electoral commission for the first time. A far better process than each council being responsible for running their own I think. It brings about a consistency in Australian elections that wasn’t there previously.
I am also a firm believer that when political Parties merge as they are in Queensland presently that the Electoral Commission should oversee voting to add some level of accountability to replace the outlandish propaganda about ‘overwhelming support’ etc that is bandied around.
By-election site underway.
http://www.abc.net.au/elections/federal/2008/mayo/
I hope that the race-car ballot is #15. Otherwise I think it has been ruled formal, which I would find disturbing. (All of the other A R ballots either have inconsistent details, or have specific comments about multiple numbers.)
#85
Nice point, Antony. As a postscript to the lack of centralisation of the electoral process in the USA, this also applies to congressional elections. For example, there is no central authority to decide the boundaries of individual districts for the House of Reps, which is delegated to individual states. Thus, state legislatures can tweak federal electoral boundaries in order to help out their federal colleagues. This happened fairly recently in Texas, where the GOP-dominated state legislature re-drew the boundaries for all congressional seats, which had the net result of giving a big boost to the GOP’s prospects in its House of Reps seats. The Democrats contested this blatant gerrymandering, and it went to the courts - but the Dems’ case was thrown out.
To their credit, some state legislatures aim to be impartial when deciding federal electoral boundaries - like the swing state of Iowa.
And I’ll now return to regular programming…
Antony @ 85
I wasn’t disputing the differences between the US & Australia. I was more concerned with the need for a resort to the law rather than justice (recognising the two do not always involve the same outcome). Yes, 8 double votes out of 100k is a tiny compared to what could potentially be - and then there’s the people who maybe shouldn’t be voting but are on the roll, and those who should be on the roll and aren’t, those denied the right to be on the roll (like in Florida), and so on. In respect of the court being a “higher returning officer” this could in fact be dealt with in legislation (by limiting the reasons for appeal and access to the court) but then I would be equally uncomfortable with that. But when the court adjudicates a result in this manner some may take it as suggesting that in some way justice has been served, rather than it being a simple adjudication. Like I said, maybe I’m reading too much into a person voting for V8 Supercar drivers, but electorate intent is greater than just the electoral mechanism, as necessary and as important as that is.
Oh, and I couldn’t agree more regarding having a single authority with a signle set of rules.
re Kakuru @ 89 - I thought the gerrymander had been the other way around for a while, and the Republicans were just evening that one up (not fair either, but thats what happens when you allow legislators to draw electoral boundaries - Dracula & blood banks comes to mind)
90 “electorate intent is greater than just the electoral mechanism, as necessary and as important as that is.”
Stewart J, surely the outcome in this case is saying that without the electoral mechanism being fixed then the electoral intent can only be found by using the workable bits that are available at great cost and waste of time for the community.
The findings in this case have gone a long way to allowing the electoral intent to be determined in more electoral divisions on the actual polling night surely a large improvement just by clarifying which votes are to be treated as formal or informal.
If two words in the Electoral Act are changed then the court cases in the future will be dealt with more efficiently and that is also a major benefit to be derived from this case.
I wonder if Labor is quietly working on an Independent candidate to stand in Mayo,
rather than run a Labor candidate. And how would the Greens go, if Labor didn’t run? Any thoughts?
Is John Schumann still in the vicinity? It might be harder for a new Lib candidate to win the seat, given the Downer family’s profile (though obviously, the Libs must be regarded as hot favourite).
I’d laugh if Labor turned up with Schumann as the candidate. That would throw a cat in among the pigeons.
#93 Steve, that’s a very good idea!Still, there’s buggerall chance of Labor winning that seat.
Mmm.
I wonder how many McEwen voters with handwriting as bad as mine are wondering who did those two “7’s”
Cheers
Rod
Steve @ 91
Of course, but my point is still that I remain concerned that we might just leave the calling of an election in the hands of a court. Perhaps I am just pondering the imponderable (is that a saying even??), but if we wish to involve voter intent then we first define the voter - we do this in the act, but then don’t necessarily encourage the engagement of the voter in being on the roll, or taking part in the act of voting (or engagement in the political process). Now I know that there will always be poeple who are engaged (those on this site for instance!) and those that will not be, for whatever reason, but if the ideal of determining the electorates intent is to be played out before the court then the ideal of electorate engagement should also be played out - who engages them, who enrolls them, who ensures they vote etc. Fran Bailey’s comment re voter ID is part of this - either a fudge on what the problem really was (the 8 of 100k double voters) or a deliberate attempt to manipulate and misrepresent that intent - indeed to disenfranchise.
Perhaps I’ve just marked one too many politics exams (hmmm, perhaps I have…or not). Of course I am happy that the administration of the count is clarified here, and that the AEC can now include the new interpretation in its guides etc. But I am equally mildly disturbed if we think that our democracy is somehow well served by this alone.
So we come back to “hanging chads” - the techinical deliberation on an otherwise ‘fuzzy’ process hardly leaves us in a better position. If “hanging chads” showed us nothing else, it did show that a techincal deliberation does not necessarily demonstrate the people’s will.
But this is not to say we shouldn’t change the two words, or tidy up the act and so on…just that I think that the issue of determining the electorates will is a larger issue, equally worthy of some consideration.
Very strange is the tale of 641, 642 and 643. Where did they come from? Is someone printing their own ballot papers?
97 - Albert Ross
Ballot papers can be prepared by photocopying or even handwriting in emergencies, for example if there’s an unexpected rush of voters at a small polling booth or pre-poll voting centre, and they run out of pre-printed ballots. In those circumstances, the polling official needs to initial the ballot papers to confirm their authenticity, which apparently didn’t happen, probably because of an oversight, in the cases mentioned. Even where there is such an oversight, the ballot papers can be counted if the returning officer is satisfied as to their authenticity. In this case, the problem seems to have been that the returning officer didn’t record his decision to admit the ballot papers with exact words to the effect that “I am satisfied that this is an authentic ballot paper”, and the court took a strict view.
Somewhat odder is that the court doesn’t seem to have addressed in any detail the much publicised case of the ballot paper with correct numbering, but with candidates’ names crossed out and other names substituted. This was a real borderline case, and a point on which everyone involved, candidates, parties and the AEC, would have benefited from guidance for the future
Stewart J I just haven’t seen a recent report on electoral reform that is needed in Australia. For some reason I never got into the fine detail of prisoners being removed from the rolls and the effect on the yoof of the rolls closing early once an election is called. I’m sure there are people out there working actively on these issues and the next time a report breaks through into the foreground I will have a close look at it.
That comment from Ms Bailey makes her seem a bit dotty.
I’m with Steve Stewart J. Any process carried out as an adminstrative task can be reviewed in the courts to see whether the decision made by the official conformed with the law. That is what the Court of Disputed Returns has done here, examined whether the administrative decisions made by the Returning Officer conformed with the law. The Returning Officer makes a decision on his interpretation of the law, but he isn’t determining the law, merely administering it. The alternative is the Returning Officer being a law unto themselves, deciding to ignore precident and doing what they like. I would rather the courts do this task than what used to apply.
The electoral law we inherited from Britain did not have Courts of Disputed Returns. Instead an Elections Committee of the Parliament was used to review elections. I don’t know about other states, but this Committee existed in NSW from 1856 until 1927 when the Court of Disputed Returns was created. Once party politics became entrenched, it was viewed as no longer appropriate for MPs to sit in judgement in these case. I’ve been through the minutes and decisions of these committees, and in nearly all cases, they were dealing with cases that fell through the cracks in law. It was not always cut and dried which principle or clause applied. The Courts have continued to perform this task. Can you imagine how the McEwen judgment would have gone had it been left to the Parliament?
This is why your comparison with the US ‘hanging chads’ stuff is just not right. Remember that in Florida, all of the County officials administrating the election were elected officials. So were many of the Judges. They were people elected as Democrats and Republicans and then sitting in judgment of the process. Apart from having a very fractured electoral administration, they had the basic fault that the whole process of administering the election was party political. That’s why the Florida election was such a scandal, and why you are wrong to keep mentioning the McEwen Court of Disputed Returns case in the same context.
Well said Antony
This was one recent report on electoral reform that is needed in Australia but it doesn’t get into much detail.
http://democratic.audit.anu.edu.au/papers/20080218auditreformagenda.pdf
This submission is from the electoral reform society of south Australia:
http://www.aph.gov.au/house/committee/em/elect07/subs/sub094.pdf
Steve
Yes, I’ve seen the Democratic Audit material before and I would broadly agree with the changes they recommend. But in a philosophical sense I still would prefer a more open debate about information transfer, informed debate, voter eligibility (including the potential for lowering the age eligibility) and so on. My interest,and I keep coming back to this, is that the McEwen judgement is a narrow judgement (necessarily limited by the petition it had received) and does not necessarily deal with the underlying democratic principles that may or may not have been met.
Anthony
I don’t dispute the use of electoral law and the court to improve the administration of the election, and that the court is useful in further defining that law, but my issue is with the use of courts to (apparently) define principles. Yes, US officials (and it is argued the Courts as well) are overtly partisan, but then so are MP’s, and they’re the ones making the laws the courts are interpreting. If we are going to accept that, then we equally need to accept that partisanship is not going to necessarily agree with, or be able to define, principle effectively. So why then are MP’s making the decision on electoral laws? Because of a democratic principle we have accepted (at least partially) regarding how we wish to be governed (the people will choose those who will govern them all). I began with the whole “is the chad cut, hanging embossed or what?” line of technical reasoning because I contend it is not dissimilar to the technical determination made when considering should a ballot with a correctly numbered set of boxes be admitted, even if the elector has replaced the names with V8 Supercar drivers.
So, I’m not equating the two systems, but simply using the two technical determinations to illustrate my concern. I was not suggesting that the McEwen judgement is a scandal (unlike Florida) or that the process is scandalous, but that my concern relates to courts determining principles - even though that may be the best process we have at present. I may not have an answer but may I not at least question this?
105 “Yes, US officials (and it is argued the Courts as well) are overtly partisan, but then so are MP’s, and they’re the ones making the laws the courts are interpreting. If we are going to accept that, then we equally need to accept that partisanship is not going to necessarily agree with, or be able to define, principle effectively.”
Correct me if I haven’t quite got what you are saying straight, Stewart J, but I get the idea you are starting to argue that we elect the politicians and they should govern, so where do the courts come into the process?
It is derived from a very small and skinny document called the constitution. There are three arms of Government in this country all as legitimate and important as the other. The Executive, the Legislature and the Judiciary all have clearly defined roles and I think you might be trying to tell us this isn’t so.
http://www.aph.gov.au/parl.htm#execgov
Stewart, you have to understand that the law is not complete and it always has to be interpreted by courts. That’s why we don’t have minimum sentencing laws, we leave the Judge to determine on the facts of the case what the penalty should be up to a maximum. It’s exactly why sentencing law is so controversial depending on your view of how the courts should work.
For me the best electoral example is the prosecution of Pauline Hanson for fraud. This all began with a civil case as to whether One Nation was correctly registered. The whole case then turned on what was the legal definition of being a member of a political party. The problem was, the electoral act had no definition of what a party member was. The Queensland Electoral Commissioner registered the party and viewed on his judgment that the party had members.
When the civil case de-registered the party, every electoral commissioner in the country was stunned because the commissioners had operated on a very general view of party membership. What the civil case revealed was that when pushed, the law was wide open to interpetation. There was no doubt that something called One Nation had members, but when you picked apart the legalities of its constitution and compared it with common law and statute law on unincorporated associations, they weren’t actually members of what had been registered as a political party. (Hanson’s criminal case then turned on further definition of membership, and the Appeal case further modified the view and issues to do with reasonable doubt.)
Some states still haven’t tightened the law on what it means to be a member of a party. The Commonwealth Act still does not have a definition. So as legislators have not acted to define membership, case law determined by courts has filled the void. I think that is wrong as it is difficult to get on top of case judgements, but if legislators don’t act to clarify the law, the courts will.
So back to your case, the electoral act states nothing about what to do with a ballot paper with numbers filled in correctly but all the names replaced by others. So someone has to decide. The Returning Officer made a decision in their view, but did it conform to law? The court decided.
Now our courts aren’t deciding principles of themselves. They are defining principles within the laws as written. The Electoral Act is blurred about specific ballot papers. If you don’t want the court to decide, you include something that covers every type of ballot paper, but who can foretell every possible ballot paper?
All the Court of Disputed Returns has done is try to resolve the blurred bits of the Electoral Act. Anything the McEwen case decided can be nullified simply by changing the law. This isn’t a constitutional case. But if the Electoral Act is not specific, someone has to choose between different options. Adminstratively this is decided by a Returning Officer, but any decision can be reviewed for its legality.
This is very different from the High Court over-turning the ban on all prisoners voting. That is what you are complaining about, where the High Court created a principle within which the Electoral Act must fit. But the Court of Disputed Returns is the reverse, trying to resolve principles within the confines of the Electoral Act. Everything in the McEwen Court of Disputed Returns decision can be changed by altering the law. But if Legislators choose not to clarify what they mean by changing the Act, then the McEwen case has now done the clarification.
And one more thing, how can you say in one paragraph that “the McEwen judgement is a narrow judgement (necessarily limited by the petition it had received) and does not necessarily deal with the underlying democratic principles”, and then in the next paragraph say “I don’t dispute the use of electoral law and the court to improve the administration of the election, and that the court is useful in further defining that law, but my issue is with the use of courts to (apparently) define principles”.
Yeah, but what did they decide (in this particular ballot paper)?
“but my issue is with the use of courts to (apparently) define principles”
Stewart J this article may contain the answer to your query.
“The same considerations apply to judicial review of executive action. The Constitution, the legislation governing judicial review, and the relevant principles of the common law, define the limits of the authority of courts to override administrative decisions. The legislation changes from time to time, and the common law principles develop. But the Australian statutes on the subject, and the principles of common law, distinguish between review of the merits of administrative decisions, which is usually undertaken by specialist tribunals, and judicial review based upon principles of legality. The difference is not always clear-cut; but neither is the difference between night and day. Twilight does not invalidate the distinction between night and day; and Wednesbury[9] unreasonableness does not invalidate the difference between full merits review and judicial review of administrative action. ”
http://www.hcourt.gov.au/speeches/cj/cj_aba_conf.htm
It would be great if there was a court ruling that interpreted the senate rules similarly to this. I was really disturbed during the Victorian Senate count at the way different Returning Officers were making quite contradictory interpretations of formality. In some cases they were actually contradicting the scrutineers handbook issued by the AEC, but more often the topics related to things not covered in the handbook.
Here is an interesting one Stephen L but the bloke represented himself and never got too far.
http://www.cs.mu.oz.au/~lee/prsa/qn/63pag4.html
Even funnier and sillier was this case that did actually get considered by the High Court. Bob McMullan must have thought this was his worst nightmare come true in 2001.
http://home.pacific.net.au/~t_rout/Petition_h.c_2001.htm
When the senate voting procedure was bought in that at least some of the pollies had the idea that the voters should only have to vote for as many candidates as there were ’senate vacancies to be filled’ on the ballot paper but the amendment was lost.
Mr. ARCHIE CAMERON (Barker) [11.45]. - I move -
That, after clause 2, the following new clause be inserted:-
“2A. Section one hundred and twenty-three of the Commonwealth Electoral Act 1918-1946 is amended by omitting from paragraph (a) of sub-section (1.) the words ‘all the remaining candidates’ and inserting in their stead the words ‘as many candidates as there are Senate vacancies to be filled’.”.
No attempt is made in the bill to amend section 23 of the Commonwealth Electoral Act , which provides that every candidate must be voted for if a formal vote is to be made. With the system of proportional representation, under which, in the majority of the States, there will be candidates from three political parties and a number of independents as well, it seems utterly futile to propose seriously that an elector should be obliged to vote for every candidate on the list in order to record a formal vote. It is hard for electors to express their preference beyond three or four candidates and to compel a man to vote for 30 or 40 candidates - for the Lord knows how many aspirants for office there will be - is to go too far. My proposal would limit the number of candidates that would have to be voted for to the seven candidates to be elected. I am sure that if the Government consults the Electoral Office or any authority on proportional representation, it will be quickly convinced that that is a sufficient number of votes to ensure a proper poll. It will lessen the number of informal votes.
http://home.vicnet.net.au/~prsa/history/hv_evatt.htm#optional
For the record there was one case referred to the courts about the senate vote from the 2007 election by the No 1 Senate candidate for the Fishing Party in Queensland. It had no chance of success because it wasn’t lodged within 40 days of the poll and the candidate who takes the case to court has to prove that an wrongdoing would have to have altered the result of the election.
http://www.austlii.edu.au/au/cases/cth/federal_ct/2008/953.html
Steve @ 106
Ah, the separation of powers. But we conflate two of them - the executive and legislature - in the government. Yes, the Constitution define the various groups (the Federal Executive Council, Parliament and High Court), but we have by convention altered the relationship, such that the FEC is effectively controlled by the Parliament in the form of the Prime Minister and governing party. The Consitution, unfortunately, may be the highest legal document in the country but it defines principles rather poorly.
Antony
We appear to arguing at cross purposes. I don’t dispute the use of the Court of Disputed Returns to resolve issues of legality in ballots, but my concern is a general concern that we may end up using courts to determine principle (thus how I can appear to be contradictory - I should have split the sentence to make it clear that I was talking about McEwen on one hand and a generalised conception of courts as a separate issue). I contend that “law” is elevated in that instance above democratic principles (government by the people) to the point of determine a moral or ethical position - something it was not created to do. In this instance I have narrowed my discussion to the determining of the intent of a voter who has crossed off names but numbered correctly. While the determination of fomrality is a legal position, is it also one of principle (ie; the determination of intent)?
I have an ongoing concern with courts, not that they don’t exist for good purposes, but that the administration of justice should not be equated with the law. Your description of the Hanson case is a good one - the court did fill a void - and you are quite correct that the there is an issue when the legislators should fail to correct errors or definitions. They are our representatives and should do so I would have thought.
Now, I realise we use the law as a mechanism of mediation between people, and that the intention of the courts is to be able to operate in an impartial manner. But this still does not address justice (something I am aware that justices and magistrates are aware of as they keep commenting on it). My simple contention is that I have a concern that we are beginning to turn to the law to determine electoral justice when it is not necessarily able to do so.
115 [I contend that “law” is elevated in that instance above democratic principles (government by the people) to the point of determine a moral or ethical position - something it was not created to do.]
Which is exactly what I though you would be arguing but it not the case even though a very popular misconception for people to adopt.
Stewart J a good test of how much credence your theory has would be for you to stand as a candidate, run a close second and take the case to court. Let me know how your case went when it’s over.
This court decision proves Labor used dirty tactics to win marginal seats at the last federal election. Rudd should be sacked, Howard re-installed as PM and fresh elections be called immediately.
The children have arrived … hide the chocolates!
Rudd the buck-passer par exellence will be a one term dud. Rudd has only 2 years as PM left.
LOL, could we please keep this thread for discussion of the McEwen case and its implications. If you wish to goad Laborites, please do it on the Newspoll thread.
Whats with Chris’ hairy pelt? Would much rather Paul’s pink shirts on Insiders
Completely off topic, but how about this for an article that mis-uses statistics.
http://www.news.com.au/heraldsun/story/0,21985,23974169-2862,00.html
Claims that electricity prices are different from Melbourne suburb to suburb, based on the average annual cost for a family. Unless the kilo-watt hour cost is different from suburb to suburb, this article is nonsense, but the article does not once mention the kilowatt hour charge. If the price per kwh is the same, this story is complete nonsense, but the only relevant number to compare suburbs is not mentioned in the article.
So some people are paying more because they are buying more? Wow, hold the press…
Melbourne’s electricity market is competitive, so the retail companies, which were originally given particular areas of the state, can charge different prices, though I don’t know how they tell their own electrons which addresses to leave the distribution line at.
I might add that different families have different numbers of members, and some even have teenagers, so the bill will vary with family size, and family size in, say, Docklands, is not the same as family size in, say, Hampton Park.
But, given the proliferation of self-selected samples in surveys uncritically reported in the press, getting statistical logic into the MSM is a lost cause.
has bailey deliberatly with held information from the court?
http://www.diamondvalleyleader.com.au/article/2008/07/09/38641_dvv_news.html
Stewart J, I have some good news. There is no need to test your theory in court yourself. The approach you advocate has been tested by a would be candidate in the seat of Rankin and the result is that the would be candidate and a close supporter are now in jail for contempt of Court. Sometimes the real world clashes with bright ideas about the role of the court in hearing electoral matters:
“A one-time would-be politician and one of her supporters were both in custody last night after a court hearing descended into farce.
Lesley Alexandra Noah, 45, applied to run for the seat of Rankin at the last federal election, but the Australian Electoral Commission rejected her candidacy when she did not receive sufficient nominations.
She lost a legal challenge against the AEC officer who rejected her application in November 2007 and was ordered to pay the officer’s legal costs, which were covered by the Federal Government.
During yesterday’s hearing lawyers for the AEC sought an enforcement order to recover the legal expenses.
But Noah instead copped a contempt of court charge and was taken into custody after mouthing off at Magistrate Michael Burnett.”
http://www.brisbanetimes.com.au/news/queensland/two-jailed-over-electoral-dispute/2008/07/09/1215282923182.html
Steve
(Apologies for not replying earlier but have been away from my desk for 5 days) Good news? Sorry? An approach I advocate? Actually, exactly what I AM concerned about - rushing off to the court’s in the expectation that you would receive justice by doing so - the court has interpreted the legislation and applied a ruling, as you would expect. Mouthing off at the magistrate is never a good course of action - and not unlike mouthing off at a police officer. So, not an approach I advocate. If you are referring to my comment “I may not have an answer but may I not at least question this?” I am obviously refering to a forum where it is possible and reasonable to do so - mouthing off at magistrates in courts is neither such a manner nor forum…
Oh, and I have put myself up for election, although never got terribly close at all, did not take it to court (no grounds to do so) but if I had done so would have a) accepted the result, b) would not have expected justice to necessarily be served, and c) questioned the process and result if I thought it warranted it, but in a manner more measured than is suggested in your example. However, if memory serves me Albert Langer was jailed for contempt as he believed that the ruling against him, although interpreting the legislation, was unjust and acted accordingly.
William You may have missed this one… It may have also been addressed in commnets above not sure…
Extract from judgment.
(i) The AEO accepted 1 ballot-paper where the voter had crossed out the names of all candidates in the election and substituted different names on the basis that all the squares contained the figures 1, 2, 3, 4, 5, 6, 7 and 8. This decision was made even though it was clear that the voter had not intended to indicate, and had not indicated, a preference for any candidates in the election. In this case the ballot-paper was informal and should not have been accepted.”
You might also wish to take another look at yhe senate rules on the calulation of the Surplus Transfer value and the segmentation of the distribution of exclkuded candidates. The way in which the current legislation works delivered a potential 6,000 added bonus votes to the Greens in Victoria. Had One Nation in Victoria preferenced the Liberal party ahead of Labor before the Greens the Greens would have been elected unfairly on the strength of the added bonus votes delievered by the system itself.
more information click here
There was a poll released by the Queensland Local Government Minister at an Estimates Committee yesterday into the voting at Queensland Local Government elections this year. The Minister also said that the Electoral Commission would be written into the New Local Government Act later this year as the body to run the elections in future. Hansard page 56.
The 2008 local government elections were conducted for the first time, as I have
indicated, on a statewide basis by the Electoral Commission of Queensland for those elections that
occurred on 15 March of this year. After the elections concluded there were claims made publicly that
the performance of the Electoral Commission of Queensland was inadequate, with some segments of
the local government sector particularly vocal. At the summit of mayors hosted by the Premier on 27
March 2008 the Premier announced that the government would undertake an independent analysis of
voters’ perceptions of the 2008 local elections. The department of local government engaged the
services of a private market research company, Market Facts, to conduct this research, and I am
pleased to say that the results of this research are now available and I have tabled those today for the
information of the committee.
The research was based on a data set of 1,000 respondents across all local government areas in
Queensland. The survey results clearly dispel the notion that the elections were adversely affected
by amalgamations and demonstrate that the criticism of the management of the 15 March elections by
opponents of amalgamation were thoroughly unjustified. This research proves conclusively that by and
large the running of the elections was no different in the eyes of Queensland residents from any other
previous local, state or federal election. While there were some initial teething problems which can be
understood given the scope and complexity of the elections, the survey results confirmed that the ECQ’s
handling of the elections was excellent.
Key findings from the survey, as I have indicated to other members of the committee, is that
99 per cent of people who voted in person did not experience any difficulties in lodging their vote; 95 per
cent of respondents who lodged a prepoll vote said they received their ballot paper on time; only four
people—that is, 0.4 per cent of the people surveyed—claimed that they did not receive enough
information to place their prepoll vote; and only one per cent of all people surveyed had difficulties
accessing the ECQ web site. The survey results did highlight some inconsistencies with some of the
voting procedures and we will work with the ECQ to ensure that in future the local government election
process aligns with state and federal electoral processes.
http://www.parliament.qld.gov.au/view/legislativeAssembly/hansard/documents/2008.pdf/2008_07_17_EST_C.pdf
The full details of the poll will appear on the ‘tabled papers’ page of the Parliamentary website within a day or so, I’d imagine.
I have been trying with limiyed success ti obtain a copy of the preference data doe the preliminary count of the 2006 Victorian Western Metropolitian Province from the VEC. The VEC reluctently provided preference data, following an FOI application, 3months after the election but still has not produced a copy of the preliminary count for independent analysis and review.
When the Parliamentary committee asked the VEC for a copy of this data the commission responded by stating that they have deleted the information.
This has raised a number of additional questions about the conduct of that election.
There is an extra ordinary waste of lmited public resources in maintinaing a state and Federal Electoral Commissions. Surely tax payers would be better off if there was one professional electoral independent authorty.
For the record here is the offical report on the Brisbane Central by-election held on 13 October 2007 which I doubt would have been posted here before.
http://www.parliament.qld.gov.au/view/legislativeAssembly/tableOffice/documents/TabledPapers/2008/5208T3380.pdf
Senate Watch, don’t know if you have read this submission .
http://www.parliament.vic.gov.au/emc/2006%20State%20Election/Submissions/22_van_der_Craats.pdf
The Report to the Victorian Parliament came out on 26 June 2008.
http://www.parliament.vic.gov.au/emc/2006%20State%20Election/final%20report.html
Page 177: For those worried about the double voting in the Gippsland by-election.
The VEC advised that incidents of multiple voting are detected when the list
of the names of those who voted are scanned post-election. Any elector who
is marked as having voted more than once is investigated. At the completion
of the apparent multiple voter follow-up from the 2006 Victorian state
election, 91 voters admitted to having voted more than once. These voters
were “cautioned and advised that if they voted more than once at future
elections prosecution action would be taken”.802
Page 211 has the explanation of the recount of votes:
“The Northern Metropolitan region recount, along with the recounts for the
Western Metropolitan and Western Victoria regions, were conducted on
Wednesday 13 December 2006 at the MECC in the presence of around 350
scrutineers. For the recount, all above-the-line ballot papers were
transported to the MECC from voting centres. The recount itself comprised a
manual check of over 1,000,000 ballot papers. The VEC summarised this
event:
Above-the-line ballot papers for each group were checked separately. The
preferences on all ballot papers marked below-the-line were data-entered into the
VEC’s computer count application. As a final step, prior to the calculation of the
result, the total number of above-the-line ballot papers for each group was entered
into the VEC’s computer-count application.941
During the recount, the VEC eliminated the human transcription error that
occurred during the Northern Metropolitan region count, resulting in the
election of a different fifth candidate.”942
130 Silent majority, see pages 217 and 218 for how the report deals with the point you raise about calculation of Surplus Value.
Steve how is it that the commissioner has not been able or willing to release a copy of the data-files pertaining to the prelimary count?
The sommisisoner in responce to an inquiry by the Parlaimentary Commitee stated…
In response to (the) request seeking preliminary count preference data for the Western and/or Northern Metropolitan Regions, I assume he means the ballot paper data stored by the computers during the preliminary count rather than the recount.
The VEC does not have the preliminary data – it is overwritten as part of the recount process. A recount is a fresh examination of all ballot papers under scrutiny. Any challenged papers are set aside and formality determined by the Electoral Commissioner under scrutiny. The previous count has no bearing on the recount.
if this informaton is true it raises serious questions as to the professionalism of the Commissions IT department warranting an independent systems review/audit
Or if the information is false then it would seem that the commisisoner is in avoidance mode and may have deliberalty mislead the house an offence if proven warrents his resignation or explusion.
The report on the way in which preferneces are distributed and the caluclation of the Surplus transfer vale is not addressed in the report/ The examples provided are related to the Vcitroian Senate which the State Parlaiment has overall responsibility for. The Senate being a States house..
There are more questions that have been left unasnwered but are still under review.
I read the report and pages you outlined and whilst the committee overall has covered many of the issues raised there where some issues that they gloss over such as
1. reports of the VEC accessing the electronic voting Kiosks results prior to the close of the poll, This was somewhat gloss over and turned into a question of secrecy of the ballot - It was a question of security of the ballot not secrecy.
2. Publication of the preference data files in a timely fashion (not three months after the election following the need to make an FOI application and even then a partial set of data) - Recent reports and statements made by Steve Tully indicate that the VEC had deleted the preliminary Data files? WHY? Do you really believe that the VEC would delete this information and not record or make a backup as any professional IT process would ensure was undertaken as a matter of due course.
3. The issue of the calculation of surplus transfer vote and segmentation of the distribution of excluded candidates votes has been referred to the next meeting of the EMC. This is an important issue as Analysis; of the 2007 Senate Vote has shown discrepancies in the way in which the STV is calculated. The system was designed at to facilitate a manual counting process for the senate. With the introduction of a computerised accounting system the system needs to be changed to eliminate the distortion in the value of the vote transfer and ideally introduce a re-iterative counting process where the distribution is reset following every exclusion and all ballot papers are re-distributed according to voters preferences in a single transaction per candidate. - See latest submission.
More questions and hopefully not just polite firing shots across into the air…
4. There still has not been a satisfactory explanation provided as to why the TOTAL number of votes significantly changes in number between the two counts in Western metropolitan. If the results of a recount change the overall result of the election then it should be the right of the losing party to request a third recount to verify the accuracy of the second count. The count should continue until the results have been confirmed at least twice with no overall change. Without a third recount you cannot be sure that the recount had not introduced an otherwise indicated error.
5. The VEC uses a random sampling quality control system. The AEC as I understand uses a double entry check verification process, the later being more accurate. Access to the data files allows for more detailed scrutiny of the preference allocation and count. without access to this data it is impossible to properly scutinize an electronic count.