Friday, October 18, 2019

The Chisholm and Kooyong Signs Challenges

Thought it was time to put up some coverage of the Court of Disputed Returns election signs challenges to the elections of Gladys Liu in Chisholm and Josh Frydenberg in Kooyong.  Frydenberg is facing a distinct Section 44 challenge that has yet to commence.  There has been a fair amount of interest in these challenges so I thought I would post some comments about where I see matters currently.  I am not professionally involved in these cases, which don't seem to have required any advanced voting pattern analysis though in theory the Chisholm one could have done so.

Referral to Federal Court

These challenges were initially heard for directions by a single judge in the High Court but were then referred to the Federal Court.  The High Court has the options under Section 354 of the Electoral Act to hear challenges itself, to refer specific details to the Federal Court or to refer a case to the Federal Court entirely.  It has chosen the latter option.  The case is entirely about interpretation of the Electoral Act and not constitutional issues, and Gordon J rejected the middle option on the grounds that "It is always easier to decide facts in the context of legal questions or other issues and I think it is fraught with danger to split it."

The referral to the Federal Court is inconvenient for observers because transcripts are not automatically available for free online.   There appears to be an application process and a $50 per document fee.  I would like to see changes made so that future CDR cases referred to the Federal Court are automatically treated as public interest cases with documents available online for free as in the High Court. My understanding of the submissions of the parties is limited to what has been reported in the media, which is not necessarily accurate or complete.

What the petitioners are claiming

The petitioners are alleging that Liberal Party signs displayed in the electorates of Kooyong and Chisholm breached section 329 of the Electoral Act by being likely to mislead or deceive electors in relation to the casting of their votes.  As is well known these were signs with Chinese writing that used the same colours as Australian Electoral Commission signs.  They have variously been translated as telling voters that voting Liberal is "The right way to vote", "The correct way to vote", or "correct voting method" (all these were submitted by the petitioners).  The Liberal Party has been reported as agreeing with that translation while saying that the intended translation was “make your vote count”.

The petitioners argue that the signs were likely to mislead electors capable of reading them into thinking that the only a 1 Liberal vote would be accepted as valid, or that the AEC was advising voters to vote 1 Liberal, or both.

Section 329 is not a general truth-in-advertising provision.  An attempt to construe a similar previous wording as a truth-in-advertising provision failed in Evans v Crichton-Browne (1981).  The Federal Court confirmed that the meaning of the current provision is the same in Peebles v The Honourable Tony Burke (2010).  A key passage in the former is as follows:

9. [..] The use of this phrase in s. 161 (e) suggests that the Parliament is concerned with misleading or incorrect statements which are intended or likely to affect an elector when he seeks to record and give effect to the judgment which he has formed as to the candidate for whom he intends to vote, rather than with statements which might affect the formation of that judgment. Certainly par. (d) of s. 161 is concerned only with a particular instance of a misleading or incorrect statement of that kind, namely a statement contained in a document representing, or apparently intended to represent, a ballot-paper. For example, a document in the form of a ballot-paper, which contained directions that a ballot-paper must be marked in a manner different from that provided by the Act, or in a manner that would favour a particular candidate, would, if the other conditions were satisfied, fall within the prohibition of s. 161 (d). It seems reasonable to conclude that s. 161 (e) was intended to deal with misleading or incorrect statements of a similar kind, even though not contained in a representation of a ballot-paper. For example, a statement contained in a newspaper advertisement that a ballot-paper should be marked in a way that would not conform to the requirements of the Act and which would render the vote invalid might mislead or improperly interfere with an elector in the casting of his vote. The same might be true of a statement that a person who wished to support a particular party should vote for a particular candidate, when that candidate in fact belonged to a rival party. An erroneous statement as to the hours or place of polling which had the result that an elector (perhaps in a remote country district) failed to get to a polling booth in time to vote would have misled that elector in relation to the casting of his vote, although it would not have misled him in casting his vote, since in the case imagined no vote was cast. [..]

While this is a fairly narrow formulation then, the exact scope of it is still being fleshed out.  In the 2018 Victorian state election, a Victorian Liberal statewide how-to-vote that advocated a 1 vote for a Liberal candidate who had in fact been disendorsed was found to breach similar Victorian provisions (even though the Liberal Party said it still wanted voters to vote for that candidate) on the grounds that it could mislead the voter into thinking the candidate was still endorsed.  It was also held in the Victorian case (which survived on appeal) that material can be misleading if it is able to fool "any gullible or na├»ve elector" rather than one of "ordinary sophistication".

So there seems to be plenty of room for the petitioners to argue that although the test is a narrow one, the signs at least could fall partly on the mechanics-of-voting side and not wholly on the formation-of-voting-decision side.  However I would expect that to still be discussed further to try to show that terms like "right way to vote", "correct way to vote" and so on could really be taken to mean that anything else was informal, as opposed to the harmless meaning that voting this way is just a good idea.

What the petitioners need to show

Unfortunately for the petitioners (and this has been missed by a lot of people opining on the matter on social media) the requirements of the cases in terms of having the results voided go much further than just showing that the signs were likely to mislead electors in relation to the casting of their votes.

The obstacles mainly come from Section 362:

(3)  The Court of Disputed Returns shall not declare that any person returned as elected was not duly elected, or declare any election void:

                     (a)  on the ground of any illegal practice committed by any person other than the candidate and without the knowledge or authority of the candidate; or

                     (b)  on the ground of any illegal practice other than bribery or corruption or attempted bribery or corruption;

unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.

Bribery and corruption are not alleged in this case, so even if the signs did breach the Act, the court must still be satisfied that the result of the election was "likely" to be affected and that it is just that the election in these seats be declared void.  However, "likely" will not necessarily be interpreted as meaning more likely than not; it may just be interpreted as meaning a serious possibility.

Possible outcomes

The following are, in theory, the possible outcomes of each case:

* The case is completely dismissed, either on a technicality or because the signs are found not to mislead the elector in relation to the casting of their vote.

* The court decides that Section 329 was breached but that the conditions of Section 362 were not met.  This would mean the result stands, but it could lead to some Liberal Party figure(s) being prosecuted for breaching Section 329, which would be embarrassing.

* The court upholds the petition in full, which would result in a by-election in the seat.  The unseated incumbent would be able to contest the by-election, but in the case of Chisholm the Liberal Party would have to think about whether to re-endorse Gladys Liu or choose somebody else.

The AEC's role

The AEC is entitled to join proceedings in Disputed Returns cases by leave of the court.  In this instance the AEC is opposing the petitions and arguing that they should be dismissed.  Especially, the AEC is arguing that under Section 355 the petitions could be thrown out for lacking "sufficient particularity to identify the specific matter or matters on which the petitioner relies as justifying the grant of relief".  (Under some conditions laid down in Section 358 the court may choose to still hear petitions that are deficient in this manner).

The extent of the AEC's intervention against the petition has attracted some attention.  The AEC's submissions on the day are implicitly criticised in the submissions but it is interesting that the AEC has sought to go further than just show that its decisions on the day were OK.

The AEC's point goes to the lack of detail in the petitions when it comes to evidence that results were actually affected.  The petitions state translated meanings of the signs and state that they were widely distributed, but mostly just ask the court to infer that as a result a significant number of electors would have changed their mind and that as a result the results would have been affected.  Without having read the AEC's submissions and seen exactly what they have in mind, I did notice that the petitions do not, for instance:

* refer to any evidence that any specific voter reported changing their mind as a result of the signs
* refer to any possible expert evidence that signs of this kind were likely to confuse and mislead Chinese-language voters (given whatever nuances of meaning the signs could be found to contain, and given these voters' various cultural and political backgrounds)

In theory the petitions might also have set out some form of voting-pattern analysis that was compatible with the result being affected by the signs.  However, the Kooyong petition does nothing of this sort at all.  The Chisholm petition does contain something that looks like it might be intended as vaguely relevant, but who knows:

"59. The total numbers of ordinary and absent votes for Chisholm were 76,561 and 4,885 of which 72,984 and 4,583 respectively were formal votes.

60. LIU received 31,445 ordinary votes and 1,687 absent votes.  YANG received 25,735 ordinary votes and 1,349 absent votes."

However that evidence actually shows that the ratio of absent Liu votes to absent Yang votes (1.25) is higher than the ratio of ordinary Liu votes to ordinary Yang votes (1.22), which is the reverse of what would be expected if ordinary voters exposed to the signs were caused to vote for Liu rather than Yang.  The more so since nationally the ratio of ordinary Coalition votes to ordinary Labor votes (1.22) was much higher than the same ratio for absent votes (1.06).  And in any case, the citation of "ordinary vote" figures is not very helpful because ordinary votes include within-electorate prepoll votes, which would also have been cast without access to the signs.

The figures on formal votes show that for Chisholm, the proportion of absent votes that were informal (6.18%) is higher than that for ordinary votes (4.67%).  This gap is wider than nationally (6.35% vs 5.83%) but if that means anything relevant to the case (which it may well not), then it is capable of multiple interpretations. It is consistent with the signs causing intending voters who would have otherwise voted informally to vote formally 1 Liberal, but that could be the case even if all those who were caused to vote formally were intended Liberal voters, in which case the signs would not have deceived anybody.

I've had a quick look for anything else in the voting patterns that might support the idea that the signs significantly affected the outcome in Chisholm, without finding it.  That doesn't necessarily mean it didn't happen - it is just that electoral data are noisy and an event that swings the votes of less than 1% of an electorate is typically not detectable, at least not reliably.

Upcoming hearing

The cases return to court for a hearing starting Nov 6, for which three days have been set aside.  Media reports have said that evidence called will relate to the printing of the signs, the extent to which the candidates were aware of the signs, the language backgrounds of the electorates and the Liberal campaign in relation to the signs.

Outlook

As usual I should add the disclaimer that I am not a lawyer.  I have no view on whether the court will rule that the petitions fail on any technicality.  I have no view on how the court will rule on the basic question of whether or not the signs were misleading under the Act.  I would be astonished if the Kooyong result was overturned and a by-election called, because of the large margins in that seat.  In the case of Chisholm the smaller margin makes things more interesting but still I would be rather surprised if the result was overturned and a by-election called.

The law should be changed

In my submission to JSCEM I have called for a specific change to the laws affecting such signs for the future.  There have been several cases of parties employing signs that look suspiciously like official electoral material in recent elections.  This isn't even the worst such case - for instance in NSW the Labor Party deployed official-electoral-material-like signs encouraging voters to just vote 1 in some electorates, and similar signs encouraging voters to distribute preferences in others.

I believe that whatever the outcome of these cases it should become clearly, specifically and seriously illegal to produce electoral signage that can reasonably be mistaken for official electoral material.  I cannot see any valid reason why such signs should be allowed.

Tuesday, October 15, 2019

Psephology And "Total Control": Episode One

I don't watch a lot of TV drama really (too much else to do).  However, yesterday some tweets regarding electoral situations in the ABC's new political drama "Total Control" attracted my attention and I decided to watch an episode to see what its representation of Australian politics is like.  I may do this for future episodes too, either as updates to this article, or if there is enough material as separate articles.  Warning: spoilers will be posted without restraint and commenters are welcome to post spoilers likewise.

This article and any that may follow it are not intended as reviews as such, though like the reviewers I have noticed that these are tough times for political drama generally as it struggles to keep pace with the outlandishness of the real thing.   Rather, what I'm doing here is purely commentary on whether the series' representations of Australian politics, and especially electoral politics, are accurate.  Some people think such commentaries about fiction are pointless because "it's fiction", but others enjoy political fiction more when they are able to suspend disbelief and think they are watching something that could really happen, and that as such is an insight into our actual political condition.  I don't personally care at all about the plot holes and contradictions already evident in this series, because I wouldn't have watched it except to write about it, but others may find them irritating.

Also in a world where many people take their political cues from dispersed, self-selected and frequently non-credible/biased sources, it's not that unlikely that someone out there who sees something in an ABC drama production will assume that that is how things actually work.  So far as Episode One is concerned, it isn't ...

Saturday, September 28, 2019

Australia's Closest Federal Elections (2019 Wasn't One Of Them)

This article is brought to you by the following quote from Brendan O'Connor, as Labor continues to grapple with its unexpected 2019 federal election loss and continues trying to work out whether what it did wrong this year was hardly anything or almost everything (or something in between):

"Some of the critiques to date, especially from outside the party, remind me of those absurd footy match reviews where despite the margins being very close, extol only the excellence of the winners and denigrate the virtues of the vanquished, even when there was just a kick in it."

He's right, for the most part, of course.  Analysis which praises everything the winner did (because they won) and pans everything the loser did (because they lost) is a massive problem in electoral commentary.  I refer to it as "annotation by result", a chess term for the same thing.

But there are a couple of big caveats here.  Firstly if you're up against Richmond or GWS, you might think a loss by a few points was a decent effort and that with only a little fine-tuning, if you catch them on a bad day next time round, you'll beat them.  But if you think you're a good team and you lose by a goal to the Gold Coast Suns, you might be sacking more than the captain.  One of the hard things with elections is that you can say how much one side won by, but that doesn't tell you if both sides campaigned well or if they were both hopeless.  Before the election the Morrison Government hardly looked like Grand Final material!

Thursday, September 26, 2019

Wonk Central: The Hare-Clark Recount Bug and the Wangaratta Case




Welcome back to Wonk Central, this site's sporadic series of articles that have been deemed too mathsy, too quirky or too niche for remotely normal human consumption.  In this case, it's clearly all three.

In this episode we take a very close look at the Hare-Clark Recount Bug (which could also be called the Hare-Clark Countback Bug, but "recount" is the term confusingly used for countbacks in Tasmanian law). What is it, why don't we kill it, and is the minister aware of any alternative approaches?  The impetus for this article is a recent court case in Victoria, in which a candidate disadvantaged by the bug in a Wangaratta Council countback in 2017 took legal action but lost.  Among other tries, the plaintiff (a local doctor, former soldier and Australian Country Party candidate in last year's state election) claimed that the use of a countback method that disadvantaged him deprived him of the human right to take part in public life.  

For various reasons, the judgement didn't get into the weeds of whether the countback system in use was fair or whether there was any better alternative.  Therefore, let's go there here.

Tuesday, September 10, 2019

Did A Late Switch-Off From Shorten Cause Labor To Lose?

(Note for Tas readers and anyone else interested: Scott Bacon recount thread is here)

Nearly four months after the election, Labor and its supporters are still having great trouble working out what happened.  Ahead in the (faulty) polls for an entire term, well ahead in them for much of it, Labor managed to lose to a government that had seemingly imploded nine months earlier.  There are basically three possible explanations.  The first is that Labor should have won the election, but that at least some central parts of its policy platform were wrong.  The second is that Labor should have won the election and that its policies were sound, but it was let down largely by tactical issues.  The third, about which little has been said, is that Labor could not have won anyway.  (The idea here is that voters no longer care about governance scandals or internal party turmoil so long as they like the PM and the basic way that he is leading.)

A version of the second theory - and by the way, I don't subscribe to any version of the second theory - says that Labor's policy mix was OK but Labor was undone by spurious "death tax" scare campaigns and a massive advertising spend by Clive Palmer against Bill Shorten.  (Those arguing this tend to oversimplify things as if the United Australia Party did little in the campaign but attack Shorten.)  Adherents of this theory seem to have taken succour from findings of a recent ANU study that has been reported as finding that Labor lost because the Coalition made net primary vote gains in a volatile environment during the campaign, and also that a big part of Labor's failure to do likewise was voters switching from Labor to other parties because they became more negative towards Bill Shorten.

Saturday, August 31, 2019

Not-A-Poll: Best State Premiers Of The Last 40-ish Years - Final Stage 2

A very long year ago today I started a new series of Not-A-Poll voting for this site's choice of Best State Premier in every state and, eventually, the whole country.  It's been going so long that some of the original contestants, including the current leader, are no longer in the original 40 year window, but I'm going to just retitle it and ignore that.

The votes are in for part 1 of the final for the state winners and the Coalition winner (the latter being an open-primary consolation prize on account of the roughly 80-20 left-right bias in readers on psephology websites).  And here they are:
 
 
 
 
 
 
 
 
 

Total Votes: 201

Why I Don't Prefer Abolishing Above The Line Voting

This week I sent a submission (not yet posted) to the Victorian Electoral Matters committee, concerning the 2018 Victorian election.  Primarily, my submission called for the abolition of Group Ticket Voting in the Victorian Legislative Council and its replacement with a Senate-style system or similar.  This follows a farcical, gamed-to-death 2018 election in which ten micro-party MLCs were elected from primary vote shares eight of them would not have won from under any other system, including two from less than 1% of the vote.

In the event that Victoria won't abolish Group Ticket Voting completely, I suggested the state at least clip its wings a little by:

* allowing an above-the-line preferencing option, so that votes that were just-1 above the line would still be distributed by Group Ticket, but voters could choose to distribute their own party preferences as in the Senate.

* banning preference trading and a range of related consultant activities

* bulk-excluding all parties that fail to clear a primary vote threshold of 4% at the start of the count

Wednesday, August 21, 2019

Expected Scott Bacon Recount

Resigning MP: Scott Bacon (ALP, Clark)
Recount from 2018 state election for remainder of 2018-22 term 
Contest between Madeleine Ogilvie and Tim Cox
Ogilvie likely, but not certain, to win [UPDATE: Ogilvie has narrowly won.]
Ogilvie may sit as independent and share effective balance of power with Sue Hickey, or may rejoin Labor. [UPDATE: Ogilvie has said she will sit as an independent.]

Recount updates will now be added at the top

Previous Party-Hopping Cases:

As noted below Ogilvie's (under unique circumstances for Tasmania) is the first case of a Lower House MP deserting their party mid-term and sitting with a different party status in 38 years.  However prior to that, this was a more common event.  Here is a not necessarily perfect list since World War II:

* Carrol Bramich (1956) Labor to Liberal (policy tensions and internal issues).  Re-elected as a Liberal.
* Reg Turnbull (1959) Labor to IND (kicked out after refusing to resign as Minister). Re-elected with massive support, later Senator.
* Bill Hodgman (1960) Liberal to IND. Defeated.
* Tim Jackson (1960) Liberal to IND (leadership change fallout). Defeated.
* Charley Aylett (1963) Labor to IND (quit after being disendorsed). Defeated.
* Kevin Lyons (1966) Liberal to IND (preselection issues). Later formed Centre Party and was re-elected.
* Nigel Abbott (1972) Liberal to IND (policy dispute). Defeated.
* Doug Lowe (1981) Labor to IND (leadership change fallout). Re-elected.
* Mary Willey (1981) Labor to IND (leadership change fallout).  Defeated.
* Madeleine Ogilvie (on recount 2019) Labor to IND (multiple factors)

All of the Bramich, Turnbull and Lowe/Willey cases precipitated state elections.

There is also the case of Gabriel Haros (Liberal) who lost preselection for the 1986 election and ran as an Independent, and probably other similar cases.

It is interesting to note the weak performance of some of these independents at elections.  In the 1964 election Bill Hodgman (Will's grandfather) managed only 475 votes and Charley Aylett only 102.  This didn't stop Bill Hodgman going on to become a two-term MLC for Queenborough (1971-83).

Tuesday, August 20, 2019

2019 Federal Election: Pollster Performance Review

Welcome (belatedly) to another of my regular pieces that I do after all the election results are finalised and, um, we can't really give this one its usual title this year.  Normally it's called "Best and Worst Pollsters" (see the comparable articles for 2013 and 2016) but this year that title isn't really appropriate.  This year was the year of the great Poll Fail, and when it came to final voting intention polls at least, they all went down together.  The story for seat polling turns out to be a little less clearcut, but not that much.

For all the complaints about "too many polls", the frequency and diversity of Australian polls had been declining at state and federal level in the four years leading up to this election.  At this election there were only five poll series conducting national polls, and of these two were conducted by the same pollster (YouGov-Galaxy conducts both Galaxy and Newspoll polls).

I usually include three categories but this time I'm not going to take tracking too seriously.  As usual the first cab off the rank is ...

Least Worst Final Poll

I usually say the final poll should be the easiest one for the less accurate pollsters to get right, because pollsters can look over each others' shoulders and consider corrections if everybody else is getting something vastly different.  Thus there have been some prior cases where polls that differed from Newspoll for some time have jumped into line with it in their final poll.  This year unfortunately it seems that some pollsters may have taken this concept a little too far - either that or multiple pollsters got to around the same 2PP coincidentally and then decided to self-herd from that point.