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Matters for judgment

Ahead of potentially decisive High Court hearings next week, another trip down the Western Australian Senate election rabbit hole.

The High Court will conduct a hearing next Wednesday and Thursday to consider three questions central to the Western Australian Senate debacle, which could offer considerably greater clarity as to whether a fresh election will be held. The court has also treated us to a document dump on its website, including submissions from the Australian Electoral Commission and each of the concerned parties (Liberal, Labor, Palmer, Greens and Sports).

The AEC is very keen on a fresh election, which appears to be driving a lot of commentary to the effect that such an outcome is a foregone conclusion. But for what little my bush lawyer’s perspective is worth, its arguments strike me as rather pedantic, and given the extreme nature of the relief being sought, the odds on the court reaching an alternative conclusion aren’t quite as long as many seem to think.

First, a quick refresher. The original count saw the first four seats go three-Liberal and one-Labor, with the last two going to Louise Pratt of Labor and Dio Wang of the Palmer United Party. Key to the result was that the Shooters & Fishers party candidate finished 14 votes ahead of the Australian Christians candidate at what proved to be the decisive point in the count. Had it been otherwise, the seats would have gone to Scott Ludlam of the Greens and Wayne Dropulich of the Australian Sports Party, who sought and were duly granted a recount.

It was during the recount process that the 1370 ballots went missing. Absent those votes, along with the correction of various discrepancies which were showed up by the recount, the Australian Christians finished 12 votes ahead and the last two seats flipped over. However, since it was known which polling booths the votes had gone missing from, it was possible to ascertain that their inclusion would have seen the Shooters & Fishers finish a grand total of one vote ahead, assuming the votes from those booths had been counted correctly the first time around.

One of the two big questions at stake is whether it is permissible for the court to be guided in any way by what might have happened if the votes had not gone missing, based on what is known from the original count. The other is whether the court should proceed in revisiting 949 ballot papers which were the subject of scrutineers disputes during the recount and which could, on some constructions, widen the Shooters & Fishers margin over the Australian Christians to the extent that the missing ballot papers will no longer be decisive.

The Australian Electoral Commission is emphatically of the view that the answer to the first question is no; that this renders the second consideration redundant; and that the only thing for it is a fresh election. That would also seem to be the position of the Greens, whose petition was rejected by the court yesterday on the basis that it did not in fact challenge the result. However, since the main thrust of its argument is that a new election should be held if Ludlam’s win is overturned, the AEC petition very much does its work for it. Having fluked their way to a win on preferences in the recount, the Australian Sports Party is less keen on a fresh election. As best as I can tell from a quick reading, their petition advocates the re-examination of the 949 disputed ballots, while proposing legalistic objections to the election being declared void in any case.

On the other side of the ledger of self-interest, Labor’s position is that it could live with a fresh election, as it is evidently confident of winning a second seat at a re-match. However, its favoured course of action is to review the 949 contested votes, which it believes should increase the Shooters & Fishers total by 87 and reduce that of the Australian Christians by 90 (though the Greens have other ideas about this). Since the results of the first count indicated that only 23 of the missing 1370 votes were relevant to the question of who finished ahead out of Shooters & Fishers and Australian Christians, this would leave it open to the court to declare Pratt and Wang elected on the basis that the missing votes did not affect the result.

The Palmer United Party submission reflects Labor’s except to the extent that it a) only wants 56 votes added to the Shooters & Fishers tally and 18 removed from Australian Christians, and b) doesn’t seek a voided election as an alternative to its preferred outcome. Also in the no-election camp is the Liberal Party, which elected three Senators the first time around and has nothing to gain from a re-match that could potentially reduce it to two. While the Liberals are undoubtedly backing the horse of self-interest, their arguments strike me as highly persuasive.

To deal with the three legal points at issue in turn:

Were those who cast the infamous missing 1370 ballots “prevented from voting”?

Section 365 of the Commonwealth Electoral Act states that official error is only to cause an election to be voided if it affects the result, and that the court is not to decide whether this is so based on evidence of how anyone would have voted had such error not deprived them of a chance to vote. This goes back to a 1919 ruling which overturned a one-vote victory in the seat of Ballarat on the basis that a handful of people had been wrongly prevented from voting, with the court hearing evidence from affected voters that they had planned to vote for the losing candidate. The parliament of the time decided this didn’t sit well with the secrecy of the ballot, and accordingly passed what now stands as section 365.

The view of the AEC, together with the Greens, is that those whose ballots went missing during the Senate recount were indeed “prevented from voting”. However, it is the shared view at least of Labor and the Liberals that voting and having one’s vote entered into the scrutiny are two different things, dealt with in different parts of the act with different purposes in mind. The significance of which emerges in relation to the second point at issue:

Is there anything to stop the court considering the result from the first count in determining whether the missing votes would have affected the result?

The answer from the AEC is an emphatic yes: since the voters whose ballots were lost were “prevented from voting”, booth results from the first count amount to precisely what section 365 prohibits: “evidence of the way in which the elector intended to vote”. But as well as arguing that the voters in question were not indeed “prevented from voting”, the Liberals argue that the purpose of section 365 is merely to protect the secrecy of the ballot, which is not an issue with the first count vote totals. Other operative sections grant the court considerable latitude to reach decisions on grounds it thinks “just and sufficient”, and the Liberals argue results from the first count are an entirely valid way of reaching such a determination.

Can or should the court revisit the 949 disputed votes from the recount?

All of which still leaves the very big headache that patching up the recount results with missing vote tallies from the first count causes the issue to be decided by one solitary vote. A possible but by no means definite way out of this dilemma is provided by the 949 contested votes that were reserved for the judgement of the state electoral officer during the recount, which the court has the power to revisit. One precedent for it doing so was when Labor challenged Fran Bailey’s 12-vote win in the Victorian seat of McEwen at the 2007 federal election. The matter was handballed to the Federal Court which reached individual determinations on 643 ballot papers, every one of which is detailed in the published judgement. Significantly, this didn’t go according to Labor’s plan: rather than overturn Bailey’s win, the sum impact of the court’s decisions was to increase her margin to 27.

The position of the AEC is that such scrutiny will on no account be required, as there is no possibility of the final margin being greater than the 1370 missing ballots, with the court obliged to avoid making any assumptions at all about what those votes might have looked like. Labor and PUP, as noted, want the votes revisited by the court, which would otherwise not be able to declare the result in their favour with confidence. The Liberals nonetheless argue that this isn’t necessary – considering the results of the original count, they say, provides sufficient basis for the court to declare Pratt and Wang the winners of the final seats, as that is how the AEC would have proceeded if the votes hadn’t gone missing.

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  • 1
    Posted Wednesday, January 22, 2014 at 6:25 am | Permalink

    Can we keep this on topic please – the Essential Research thread is still the “main” one.

  • 2
    Socrates
    Posted Wednesday, January 22, 2014 at 7:04 am | Permalink

    Thanks for the clear explanation of the legal issues William. Personally I hope their is a new election. The first one has been too compromised to retain popular credibility IMO. But I see your point that legally it could go either way.

  • 3
    sprocket_
    Posted Wednesday, January 22, 2014 at 7:22 am | Permalink

    The squabbling between the parties about the rats and mice of the missing and disputed votes gives the High Court the easy way out, which is to declare the WA Senate election void.

    The overarching principle has to be the election process reveals the will of the people. This is clearly not the case with the election for 6 years to the Senate of a gridiron player from the scam “Sports Party”.

  • 4
    shellbell
    Posted Wednesday, January 22, 2014 at 8:35 am | Permalink

    There is no appeal from whatever is decided next week even if just one judge sits.

    Interesting sections in the Electoral Act:

    SECT 364
    Real justice to be observed
    The Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.

  • 5
    bug1
    Posted Wednesday, January 22, 2014 at 9:22 am | Permalink

    Yea, good write up WB, looks like a big can of worms to me.

  • 6
    Bule
    Posted Wednesday, January 22, 2014 at 9:43 am | Permalink

    William, that article from Dean Smith yesterday seemed to be suggesting that the Court could declare the first four ‘duly elected’ and have a fresh election for the last two spots.

    This seems to be a self-interest argument to beat the lot you’ve identified above. Apart from anything else, would Mr Smith countenance the major parties vacating the field in the fresh election to leave voters to choose their last two senators from the minor/micro party field? The alternative, surely, would be to shut the door entirely on those parties?

  • 7
    tonyfunnywalker
    Posted Wednesday, January 22, 2014 at 12:36 pm | Permalink

    A bit like the infamous ” shards” episode in Florida and the election of G.W. Bush by 2 judges of the Supreme Court (who voted on party lines) lets not have the High Court make a similar decision (mistake). A re- election is the only fair way to resolve this dispute with the lesson that such a ” mishap” must not occur again.

  • 8
    JohnB
    Posted Wednesday, January 22, 2014 at 2:02 pm | Permalink

    Is nobody recommending that those who voted at the booth in question be asked to vote again? I know diddly-squat about the legality, but presumably all the other Senate papers are still available.

    Step 1: 2000-odd folks return to the booths instead of 1+ million.
    Step 2: Resolve 900+ disputed votes, either via recount or the court.
    Step 3: Distribute all votes in respect of all 6 Senate seats.

    The essential question is: May the court order a re-vote for just one booth, or must t be for the whole State?

  • 9
    Jackol
    Posted Wednesday, January 22, 2014 at 2:09 pm | Permalink

    I know “the law” is a strange and foreign country where common sense only leads you to the wrong conclusion, but this seems particularly perverse to me:

    Justice Hayne ordered that Senator Ludlam bear the costs of the Liberal, Labor, PUP and ASP candidates in responding to his petition.

    http://au.news.yahoo.com/thewest/national/a/20930385/greens-face-big-bill-after-court-loss/

    The petition mechanism seems deliberately set up (as it should be) not as a confrontational mechanism, but as a way of officially bringing matters to the consideration of the court.

    I would have thought it was reasonable for the petitioner to pay the court’s costs for the time it sits to consider their petition – about 5 seconds in the case of the Green’s petition – but why should the Greens have to pay for the legal fees of the other 4 parties? The other parties were not forced to pay high-priced lawyers to respond specifically to the Greens’ petition, surely – the system isn’t set up to be party vs party …

    It also seems strange to be talking about paying other parties’ costs given that I assumed, in a more conventional civil action, on the ‘losing’ party paying the ‘winning’ party’s costs … but I would not think there was ever really a ‘winning’ party in a CoDR action – the court makes a judgement, and it may or may not align completely or partially with any given petitioner’s request, but there isn’t a ‘winner’ out of the petitioners per se, surely?

    Each of the parties should judge for themselves how much they are willing to spend on their own lawyers at their own risk in this process.
    I worry that this kind of thing significantly increases the uncontrollable financial risk that individuals and parties face when petitioning the CoDR which is a big deterrent on the non-majors submitting petitions which doesn’t strike me as being particularly democratic.

    Of course there are costs involved for rousing the High Court into action, but the High Court is only involved as the court nominated to act as the CoDR, and the purpose of the CoDR is to facilitate the democratic process. If, by ensuring there are potentially very large and uncontrollable costs (costs dependent on how much other parties may be willing to spend on their legal teams) that might be worn by anyone petitioning an aspect of the election process, and this is likely to deter people from doing so in reasonable cases (and I think it is), then that’s a bad outcome in my book.

  • 10
    Mark Duffett
    Posted Wednesday, January 22, 2014 at 2:25 pm | Permalink

    In its deliberation, how much weight is the court obliged to place on the time elapsed between the original election and any putative fresh one? Does this weight increase in proportion to the interregnum (now looking likely to be at least six months), as the political landscape evolves further from that of 7 September 2013 with every passing day?

    Is the principle that everyone in the country goes to a federal poll on the same day a well-established one in legal terms?

  • 11
    Andybob
    Posted Wednesday, January 22, 2014 at 2:46 pm | Permalink

    The persons who cast the missing 1370 ballots were not prevented from voting. They voted. The booth results from the first count are not ‘evidence of the way in which the elector intended to vote’; they are evidence of how the electors did, in fact, vote. They are in fact the best evidence of the vote, given that original ballots have been lost.

  • 12
    Graeme
    Posted Wednesday, January 22, 2014 at 4:37 pm | Permalink

    Bilbo, for a bush lawyer you are on fire.

    I think the AEC is right about the remedy (new poll) but as you say their argument about ‘voters prevented from voting’ is cack-handed. (As is the bizarre final footnote to Cicero, which on one reading misinterprets the etymology of ballot (ball) from billetes (tickets)).

    Thrilled as I am that the Libs’ lawyers call me a leading authority on some horribly obscure points, this is an omelette that can’t be unscrambled. How is it just on the balance of probabilities to overturn the nominal return yet reinstate the original result on the edge of a 1 vote butterfly wing, based on almost all – but not 1370 – votes recounted. What can statistically said about the chances of the recount adjusting any of those 1370 in a way that would have painted a different butterfly wing? It strikes me that the Lib argument is too cute as Gore’s was in cherry picking counties to recount.

    On the self interest side, wasn’t the Lib hierarchy sanguine about a reelection before the polls turned south for them? I get the essence of their argument that it feels ‘unjust’ that they had 3/4 of the non impugned seats fall their way, now at risk of a re-election. But that’s a consequence of the fact that if any of the final seats are impugned in a Senate election it would be an even bigger injustice (or rather undemocratic result) for a Court to make up a result rather than having a fresh election.

  • 13
    theintellectualbogan
    Posted Wednesday, January 22, 2014 at 4:40 pm | Permalink

    It’s probably been covered before, but is there any historical precedent which might give some guidance as to a likely resolution?

    Me, I’d like to get to vote again, not that I’ll be voting any differently from last time. My main motivation is not so much a matter of legal or electoral correctness, though, but more that I’ll be fascinated to see how (if at all) WA voting behaviour as a whole has changed since September.

  • 14
    AR
    Posted Wednesday, January 22, 2014 at 6:47 pm | Permalink

    Thanks for this exposition, though it made my head ache. The time factor (how do WA voters think having seen TT & his Uglies in action) but I see no other way to resolve the situation than a fresh election.
    Hoe that TT is sweating, if such human response is possible for such a creature.

  • 15
    shalmaneser@kooee.com.au
    Posted Wednesday, January 22, 2014 at 7:30 pm | Permalink

    love your post headings William. Your sense of history and mischief cause me great amusement.
    Barney

  • 16
    pedant
    Posted Wednesday, January 22, 2014 at 9:20 pm | Permalink

    Mark Duffett @ 10: Who knows what the High Court might say these days, after the Rowe case? But the Constitution leaves the timing of Senate elections up to each State, subject to the requirement that Senators be elected in the 12 month period prior to taking up their seats. Famously, Queensland issued a writ for a half-Senate election in 1974 without any consultation with the Commonwealth, though it was overtaken by events when the 1974 double dissolution was called.

    And in some countries, polling takes place at different times in different areas: the UK used to do that, and I think India still does.

  • 17
    WeWantPaul
    Posted Wednesday, January 22, 2014 at 9:56 pm | Permalink

    this is an omelette that can’t be unscrambled

    I think this is the key, I’m 100% sure the second (declared) result can’t stand or be unscrambled and I’m 60% sure the first (undeclared) can’t be unscrambled, but if it can then the HC would unscramble it and declare the first result if Graeme is right there must be a new election (I know it isn’t called a new election but I mean whatever a new election is called).

  • 18
    Sailor
    Posted Wednesday, January 22, 2014 at 11:43 pm | Permalink

    Jackol
    Agree completely, especially with your comments about perverse results & costs from the legal system – & that doesn’t only refer to the CoDR activities.

    “Truth has as much to do with politics as justice has to do with the law”.

    It will be interesting to see how this mess of spaghetti is handled by the outrageously paid legals.

  • 19
    Kevin Bonham
    Posted Thursday, January 23, 2014 at 1:55 am | Permalink

    JohnB@8

    Is nobody recommending that those who voted at the booth in question be asked to vote again? I know diddly-squat about the legality, but presumably all the other Senate papers are still available.

    Step 1: 2000-odd folks return to the booths instead of 1+ million.
    Step 2: Resolve 900+ disputed votes, either via recount or the court.
    Step 3: Distribute all votes in respect of all 6 Senate seats.

    The essential question is: May the court order a re-vote for just one booth, or must t be for the whole State?

    There are good reasons not to do this. One of them is that the voters will not vote as they would have done in the original election, but will be lobbied on how to vote strategically so that their vote has the most impact a certain way. This places those voters in a priveleged and in effect far more powerful position than those who voted originally. It is true that there are other rare cases where this sort of thing happens (eg late voting is allowed because of natural disasters affecting a small part of a close seat) but it is best kept to an absolute minimum.

  • 20
    Kevin Bonham
    Posted Thursday, January 23, 2014 at 2:01 am | Permalink

    Graeme@12

    Bilbo, for a bush lawyer you are on fire.

    I think the AEC is right about the remedy (new poll) but as you say their argument about ‘voters prevented from voting’ is cack-handed.

    It is certainly a tortured argumentative path they take there because the only reason those voters have been prevented from “voting” (meaning having their vote considered in the count) is the decisions the AEC took later to exclude prior knowledge of those votes from the final released count.

    I think the CDR may be able to unscramble the mess if it scrutinises the disputed votes and this process creates changes in the total. If it turns out that the real difference with all votes included (assuming the original votes were counted correctly) is ten or better twenty votes rather than one, then there becomes a high probability that the right side won. When the margin is sitting at a single vote, the probability is not meaningfully different to 50-50.

  • 21
    Kevin Bonham
    Posted Thursday, January 23, 2014 at 2:03 am | Permalink

    On the other hand, if the CDR looks at the reserved votes and at the end decides the effective margin is still only one vote then that won’t have proved very helpful. And if it finds the effective margin is, say, seven votes, then at what point and on what basis is the line drawn?

  • 22
    Kevin Bonham
    Posted Thursday, January 23, 2014 at 2:08 am | Permalink

    Oh my comments on the document-dump have been appended to the mass of waffle I’ve already put out about this post-count at:

    http://kevinbonham.blogspot.com.au/2013/10/wa-senate-squeaker.html

    (scroll way down)

  • 23
    Graeme
    Posted Thursday, January 23, 2014 at 2:50 am | Permalink

    Though I’m a legal nob, I tend to think of things pragmatically.

    In this instance, there may indeed be processes of re-scrutinising challenged votes that arrive at a sense that Pratt, Wang and the original count stands by more than a butterfly wing. But even aside from the double whammy credibility problem of tightness and lost votes hanging over the original affair, it will look like the Court deciding the result, whereas a fresh election throws it back to the people who matter. It is rare, at least since the Victorian era of candidates being disqualified for corruption, for Courts of Disputed Returns to go awarding elections to candidates other than those who were declared winners. Perhaps this is different given that the declared winners were as much nominal as real.

    And Bilbo is right, folk like me were too quick to assume a fresh election was the way to wash away this mess, when there are several powerful parties with crack legal teams scrapping to preserve the original count.

    The big pragmatic problem with a fresh election is not cost, timing or WA somehow getting a fresh bite of the cherry. It’s that it will be physically impossible to print ballots big enough, if all the registered minor parties + interstate independent types stand – and the history of by and re elections is that they are nothing if not honey pots.

  • 24
    Posted Thursday, January 23, 2014 at 5:05 am | Permalink

    I think the Court will quite correctly look for a way to avoid a fresh election, and will therefore seat Pratt and Wang as the winners of the first count.

  • 25
    Posted Thursday, January 23, 2014 at 5:09 am | Permalink

    On unworkable Senate ballot papers, we’re going to get to that stage soon anyway. The solution to this is radical deterrence of frivolous candidates. Deposits should be raised to $100,000 for Reps candidates and $1 million for Senate tickets. The money would be refunded to candidates or tickets getting 1% of the vote.

  • 26
    ifonly
    Posted Thursday, January 23, 2014 at 7:18 am | Permalink

    An election where multiple candidates are elected to represent an area is different to a single elected person. When only one person is elected then any doubt in the outcome means that persons validity is in doubt.

    In this case there are 4 candidates who no one questions were elected following all due process. Any election scenario would place at risk the election of one or more of these candidates.

    These ballots did not go missing in a local community hall staffed by volunteers from the CWA, they went missing from HQ (whether deliberate or not).

    A new election would set in place a precedent that any dissatisfied person could instigate a new election by destroying/removing papers where a close result has occurred.

  • 27
    Disasterboy
    Posted Thursday, January 23, 2014 at 9:40 am | Permalink

    I am curious about the police investigation into the missing ballots. do we have a result/report? If they are missing with some intent or purpose to distort the recount or hide an error, then that makes the original count uncertain. Unfortunately, I don’t think the police investigation can provide a conclusive result on the efficacy of the first count of those votes. That pretty much leads consequently to the AEC position and the agony of an election. In my unquallified opinion. :-(

  • 28
    Tom the first and best
    Posted Thursday, January 23, 2014 at 11:13 am | Permalink

    24

    The bar for declaring elections void is are their problems that could have changed the result. Unless there can be enough margin found by the court examining ballots that were subject to scrutineering disputes, to overcome the tight margin effecting the result, the court must sent WA back to the polls. Any other result is undemocratic.

  • 29
    Tom the first and best
    Posted Thursday, January 23, 2014 at 11:18 am | Permalink

    25

    Tightening party registration requirements, increasing the number of candidates required for an ATL Senate ticket, requiring a number of signatures for party candidates (say 25) and increasing the required number for independent candidates are all fairer ways of reducing frivolous candidacies because they are increases in effort rather than money. Requiring candidates to be registered in the electorate (i.e. live there) they are standing for my also help.

  • 30
    Kevin Bonham
    Posted Thursday, January 23, 2014 at 2:51 pm | Permalink

    Disasterboy@27

    I am curious about the police investigation into the missing ballots. do we have a result/report?

    Yes, it’s here:

    http://www.aec.gov.au/About_AEC/Publications/Reports_On_Federal_Electoral_Events/2013/files/inquiry-into-the-2013-wa-senate-election.pdf

    The report found that the fate of the ballots is unknown and probably unknowable and that there is no evidence to even indicate fraud but also inadequate evidence to rule it out. The suggestion is the ballots may well have been sloppily mixed with rubbish for recycling and hence destroyed but it is impossible to know.

    Re #29 I would like to see Senate candidates required to be residents of the State/Territory they are running for. For instance for Tasmanian state elections it is required to be a resident for the previous two years or alternatively five years total.

  • 31
    Jackol
    Posted Thursday, January 23, 2014 at 5:38 pm | Permalink

    I think the main thing that needs to be changed to discourage the plethora of clown candidates is just to do away with group ticket preferencing.

    The clowns currently have a demonstrated chance of winning the preference lottery with the current system, so of course there is big motivation for every clown to put their hand up.

    As soon as group ticket preferencing is abolished the sub-1% parties/candidates will largely give up because they will have no hope of winning or of significantly influencing the vote in any way.

    Let’s fix Senate preferencing (without quotas or massive deposits) and see what happens. If there’s still a problem, then we can look at more extreme anti-democratic measures.

  • 32
    Posted Thursday, January 23, 2014 at 8:19 pm | Permalink

    There’s nothing anti-democratic about high deposits. The purpose of parliamentary elections is to elect members of Parliament, not to provide a forum for cranks and narcissists. Large numbers of candidates push up the informal vote and thus undermine the legitimacy of elections and deprive low-literacy people of their vote. High deposits will not deter candidacies by legitimate parties. Every Greens and PUP candidate polled > 1% of the vote, as did most FF and KAP candidates.

  • 33
    Jackol
    Posted Thursday, January 23, 2014 at 8:29 pm | Permalink

    Psephos, I don’t think anyone disputes that large lists of ‘cranks and narcissists’ is not desirable, and hence the discussion.

    Financing large deposits is inherently discouraging, and my point was that changing the preferencing system will, in my opinion, achieve what we all agree we want (smaller Senate candidate lists) without imposing any significantly discouraging barrier to those who want to put themselves forward as candidates.

    My point is we should fix preferencing first, see what happens, and then impose barriers if we still have a problem, but I honestly don’t think there would still be any such problem.

  • 34
    pedant
    Posted Thursday, January 23, 2014 at 8:44 pm | Permalink

    Psephos @ 32: If your proposal for a deposit of $100,000 for the House of Representatives had been in place before the last election, there is probably only one thing of which we can be reasonably certain: the well-beloved Sophie M. would still be the Member for Indi.

  • 35
    Disasterboy
    Posted Friday, January 24, 2014 at 3:16 am | Permalink

    Thanks Kevin Bonham. thats an unsurprising result from the police investigation. It probably doesn’t help the Court much in deciding how to proceed.

  • 36
    Disasterboy
    Posted Friday, January 24, 2014 at 3:31 am | Permalink

    If people are discussing electoral systems to improve the Senate, then I’ll suggest an different approach. Because its a house of review I’d suggest a form of Range voting. Everyone gets to vote for groups/parties. They each can only put up 5 candides. Every voter elects 6 candidates so for each group the vote for 0 1, 2 or 3, 4 or 5canididates totaling 6 all up, doubling at a full senate election. No preferences to distribute. Electors can choose a mix to reflect their torn opinions or the diversity they want/need from a house of review. and they have to give at least 1 vote to someone else other than their default/first choice. Yes, of course, I see some difficulties with this idea in Australia, but I put it out there….

  • 37
    Tom the first and best
    Posted Friday, January 24, 2014 at 12:57 pm | Permalink

    32

    With Running a candidate in every seat in the HoR would require party to have 15 million, with a further minimum of 1.2 million for ATL groups in every state in the Senate, held as deposits between the close of party nominations and the return of deposits. $16,200,000 is a lot of money for a major party, let alone a minor party and would seriously weaken campaign funds and seriously hurt every party except maybe the ALP, Liberals, Nationals and PUP.

    The main beneficiary of $100,000 deposits would be the National Party (and to a lesser extent regional Libs) because it would undermine rural and regional independents, especially the serious ones ($100,000 is serious money for a regional independent, especially if they are new), and the Nationals would only be depositing $2-3 million, at most, for their candidates.

    I do not dispute the need to get frivolous candidates off the ballot paper, I just dispute the method. I have made suggestions as to other, fairer and thus more democratic means of getting frivolous candidates off the ballot paper.

  • 38
    Oakeshott Country
    Posted Friday, January 24, 2014 at 3:12 pm | Permalink

    $1,000,000 deposit for senators that is returnable on achieving 1% (presumably primary vote). From recent experience it would be possible to win a seat and be bankrupted by the deposit.
    I think the large deposit should also be combined with a 5% threshold. That will stop the descent into ballot paper anarchy.

  • 39
    Jackol
    Posted Friday, January 24, 2014 at 3:33 pm | Permalink

    I think the large deposit should also be combined with a 5% threshold. That will stop the descent into ballot paper anarchy.

    And even more firmly entrench the established parties or monied interests as the only viable players in our political system.

    I guess my comments about fixing preferencing before making barriers to entry were so trivial and foolish that no one even bothers to tell me why we shouldn’t try it.

    ballot paper anarchy

    Good grief. The rhetoric is getting a little overblown.

  • 40
    Oakeshott Country
    Posted Friday, January 24, 2014 at 8:23 pm | Permalink

    I hardly think getting a minimum of 5% of the vote is too high a barrier to gaining a seat for a bona fide party. At present we have a lucky dip in which nut jobs and egotists take their chances of getting on the public teat with support of less than 1%

  • 41
    Jackol
    Posted Saturday, January 25, 2014 at 12:17 am | Permalink

    So, why not try fixing Senate preference scams by abolishing group ticket preferencing, which should prevent any of the sub-1%ers scoring the lucky dip seat unless they convince a lot of people to physically write them in as 2nd preference (in which case they’re perfectly entitled to win), and see what happens before introducing artificial arbitrary barriers to entry into our election process?

    I just don’t get why we don’t solve the obvious broken thing first before moving on to ‘fix’ things (with unintended consequences) that may well not need to be fixed.

  • 42
    shellbell
    Posted Saturday, January 25, 2014 at 2:53 pm | Permalink

    Argument and judgment on Greens’ petition dismissed by Hayne J:

    http://www.austlii.edu.au/au/other/HCATrans/2014/1.html

  • 43
    Jackol
    Posted Saturday, January 25, 2014 at 5:16 pm | Permalink

    That transcript explains the perversity of the payment of other petitioners’ fees, but it is as I feared – the court system is perverse, and I can only feel they made a category error in how they are treating the operation of the CoDR.

    Why is one petition treated as that petitioner vs all the other petitioners? It’s just stupid. What if there’s only a single petition lodged – it wouldn’t make sense to be that petitioner vs anyone else, they could stick the crown in if they were desperate but I really don’t understand why it should be automatically turned into an adversarial action.

    And presumably every single petition will be treated as that petitioner vs the others. Ludicrous.

    The law is an ass.

  • 44
    pedant
    Posted Saturday, January 25, 2014 at 10:09 pm | Permalink

    Jackol @ 41: Bear in mind that group ticket voting was introduced in 1984 to reduce the informal vote at Senate elections, which had reached stratospheric, scandalous heights in the 1970s because of the requirement that voters mark individual preferences for every candidate (73 in NSW at the 1974 election). So just abolishing above the line voting would recreate that problem. To avoid that, it would be necessary to introduce optional preferential voting for what is currently the below the line part of the ballot (a proposal which I support, incidentally).

  • 45
    pedant
    Posted Saturday, January 25, 2014 at 10:16 pm | Permalink

    Jackol @ 43: This is about as clear an example as will ever be seen of a case in which all the costs should be paid by the Commonwealth.

  • 46
    Jackol
    Posted Saturday, January 25, 2014 at 10:37 pm | Permalink

    pedant @44 – yes, I understand that history. I agree that the only real solution (besides moving to something better approximating proportional voting) is optional preferential. I have had reservations about OPV in lower house seats, but I really don’t have any issue about OPV for Senate voting a la NSW upper house voting now. We can choose to abandon ATL voting if we have OPV simplifying formal voting BTL, or keep ATL (as in NSW) with party preferences (and OPV of course) ATL. I don’t really care, but OPV is the answer I think, combined with abolishing group ticket voting.

  • 47
    Jackol
    Posted Saturday, January 25, 2014 at 10:39 pm | Permalink

    pedant @45 – well, as I initially said, I don’t have a problem with petitioners paying for the court’s time that they take up, but in all other respects petitioners should just be paying for whatever legal counsel they feel necessary to get their own point across – being liable for other petitioners’ legal bills is just … absurd.

  • 48
    pedant
    Posted Saturday, January 25, 2014 at 11:36 pm | Permalink

    Jackol @ 45: I think it varies from case to case. Some petitions in the last 25 years have just been absurd: wingnut arguments that candidates’ deposits have to be paid in gold, and so on. Then, I think it’s quite reasonable to expect the petitioner to pay everyone’s costs, since they didn’t ask to be put out of pocket in order to defend themselves against such craziness.

    But the current situation is quite different: the has made no bones about the fact that its own errors which have led it to call for the election to be voided, and in such a case, it seems entirely fair to me that the Commonwealth should pay the costs of everyone who needs to be represented.

  • 49
    pedant
    Posted Saturday, January 25, 2014 at 11:37 pm | Permalink

    “the AEC has made no bones”

  • 50
    Jackol
    Posted Saturday, January 25, 2014 at 11:44 pm | Permalink

    wingnut arguments that candidates’ deposits have to be paid in gold, and so on. Then, I think it’s quite reasonable to expect the petitioner to pay everyone’s costs

    I don’t see why anyone other than the Court would incur costs – no one else, certainly no other petitioners, need respond to obvious wingnut arguments.

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