A revealing piece of campaign colour in the most exciting (but I'm not expecting it to be the closest) Legislative Council race, Nelson, involved the race's most obscure and recently announced candidate, Hans Willink. Here is a Willink sign photographed at a well-known sign location at the city end of the Southern Outlet.
The photo was taken with flash at night, and the blue is actually quite a bit darker than it appears in this photo. About halfway between the above and black.
Until today I'd seen no coverage of this one in the southern press, but Calla Wahlquist in The Examiner (April 22 page 4) thought it was interesting and so do I - mainly because it touches on two of my pet themes, namely (i) electoral law beat-ups and (ii) the Liberal Party's deceptive self-labelling. What's happened here is that the Liberals have tried to get a bit heavy against the upstart minnow candidate. Liberal Party state director Sam McQuestin is quoted as describing the combination of wording and colour of the signs as "a blatant attempt to deceive the voters of Nelson into supporting [Willink] as a member of the Liberal team".
Mr McQuestin has written to the Tasmanian Electoral Office complaining (they rejected it), and also wrote to Mr Willink in a letter I have not yet seen [edit: have now!], but which Greg Barns (himself a former Liberal who left the party on bad terms, and apparently pro-Willink) described as "threatening".
McQuestin is quoted as claiming "We have the strongest political brand in the state and in the nation and we take very seriously our responsibility to protect that brand", and as saying the party was "prepared to consider all legal avenues".
They can consider all the avenues they like. They're all dead ends.
Is Hans Willink Actually A Liberal?
Mr Willink is a former long-term Liberal member, past Branch President and one-time state election candidate whose membership "lapsed more than a year ago" according to Calla Wahlquist. Willink states he's "never claimed to be a current member". Wahlquist writes:
"Mr Willink says he is using the word in its ordinary meaning as someone who is a libertarian, commonly referred to in Australia as a "small-l liberal"."
In my view these two concepts aren't exactly the same, and Mr Willink's campaign material reflects aspects of both. His campaign material reflects a general deregulationist, cost-cutting type approach. The somewhat erratic GetUp! voting guide# lists him as supporting state-based marriage equality and the Gonski review and opposing the Tasmanian Forests Agreement. The ABC, which is generally many times more reliable than GetUp! as a source, states that Willink supports decriminalising abortion and quotes him to that effect. (GetUp! earlier claimed he was opposed. As GetUp! have not released the verbatim form of the questions they put to the candidates and responses, I'm not too inclined to take their rankings on trust.)
So How Can The Liberals Complain Then?
Not having seen the letter [edit: have now!] I don't know exactly what Willink is being threatened with. But I'd hazard a very low risk guess that it's that old chestnut, misleading electoral advertising [edit: yep!]. Section 197 of the Tasmanian Electoral Act requires, in part, that:
A person must not –
(a) print, publish or distribute, or permit or authorise the printing, publishing or distribution of, any printed electoral matter that is intended to, is likely to or has the capacity to mislead or deceive an elector in or in relation to the recording of his or her vote; [..]
It is a very common false belief that this section regulates against making of any false or misleading statement on electoral material. Complaints about supposedly false political claims on election pamphlets are common, but for electoral authorities, they're basically just binliners. The important words that greatly narrow the focus of the meaning of S. 197 are "in or in relation to the recording of his or her vote".
S. 197 is not a truth-in-electoral-advertising clause - rather, it's there to stop advertisers from misleading the public by telling them that an informal vote will be formal and vice versa, by telling them falsely that voting is optional, by misleading them concerning the day of the election, and so on. The truth or falsehood of claims made during the campaign by candidates concerning themselves, each other, or parties, is for the candidates to debate and the voters to decide.
We were last around this block during the 2010 federal election when it was the Labor Party squealing about the Liberal Party supposedly breaching the federal equivalent by publishing material alleging that a vote for Labor is a vote for the Greens and making clearly misleading claims to that effect (based on a grain of truth concerning Senate preferencing.)
I didn't think those claims by Labor had a leg to stand on at the time, to which the party responded by sending me a copy of an opinion by their outgoing Denison MHR, Duncan Kerr SC. The nearest thing Kerr could find to a precedent was "In Evans the High Court gave as an example that would offend s 329(1) a statement that a person who wished to support a particular party should vote for a particular candidate when that candidate belonged to a rival party [..]" (As it happens, the word the High Court used was not "would" but "might".)
It would be extremely funny if the Liberals rocked up in court and tried using that passage from Evans v Crichton-Browne to support their "case" against Willink. They'd firstly have the problem that he isn't a candidate for any party, and secondly that anyone wishing to support the Liberal Party in the seat of Nelson would have a bloody difficult time doing so because, er, the party doesn't have a candidate. It might be said though that their zeal in defending against any possible competition to Jim Wilkinson from their renegade ex-comrade has made it clear who their candidate, unofficially, really is.
Another well-known recent beat-up on this front occurred when Tony Mulder appeared in a campaign ad in police uniform and the Labor Party lodged an extremely silly complaint, which was thrown out.
There Are Liberals And There are liberals
Outside Australia, the term "liberal" has a couple of common contexts in political discourse. The first is the American use of "liberal", which refers mainly to centre-left (by US standards) Democrats and their supporter movements - a viewpoint that believes the government has a role in social services, but that differs from progressive socialism by otherwise giving free-market solutions at least some of the time of day.
When it is pointed out that the Liberal Party in Australia isn't really "liberal" by this definition - a point often made by lefties bewailing the party's treatment of asylum seeker issues - Liberal sycophants tend to defend themselves by arguing that the US liberal left nicked a term which once had a very different meaning, which we now know as "classical liberal".
Classical liberalism is (or some say was) Adam Smith on the free market, John Locke on religious "toleration" and so on - the general move towards a small government that doesn't pick winners and creates the conditions in which invisible hands both economic and social can do so instead. One lineage of it turned into social liberalism via the infusion of the ideas of the Utilitarians, and another branch hardened and became a form of small-government"libertarianism" (Hayek, Friedman, Ayn Rand and so on).
The problem for those Liberals seeking to defend their use of the tag is that they don't score too well on the "classically liberal" tag either. The party of Howard and Abbott has been a big-spending, socially-conservative, pro-religious, market-interventionist party that has only actually lived up to its name in a token and haphazard fashion, mainly on those issues on which Labor is even less liberal. Labor MHR Andrew Leigh has even tried to claim that Labor is Australia's liberal party, though after suffering through the attempts by both the federal and state parties to mutilate political discourse in the name of anti-discrimination, I find his claim that the party upholds "that freedom of speech applies for unpopular ideas as for popular ones" to be extremely wet behind the ears.
So there are liberals who aren't Liberals, like Greg Barns and apparently Hans Willink (and even your bourgeois host, according to one online survey which rated me a "liberal cosmopolitan"). There are liberals who are Liberals, like Malcolm Turnbull, Petro Georgiou and Russell Broadbent. There were classical liberals who were Liberals, in the Hewson days, but you don't really see too many of them around anymore. There are Liberals who purport to be liberals, but still don't get taken too seriously for it, like George Brandis. And there are Liberals who aren't liberals in any sense, and those are actually most of the party.
First Against The Wall
The Liberals are extremely lucky that Section 197 is interpreted narrowly rather than broadly. Because if it was interpreted broadly enough to argue that an "Independent liberal" is passing himself off as a candidate for the Liberal Party in an electorate that no Liberals are contesting, it might also be interpreted broadly enough to recognise that every single time it runs for an election, the Liberal Party deceives the voters by misleading them into thinking that if they vote for it, they are voting for a liberal party.
The modern Liberal Party's continuing use of the L-word in its title is no mere technicality, but one of the great political Piltdown Men of Australian electoral history. The unfortunate thing about it is that the party is able, under laws preventing parties from registering under names that would create confusion, to suppress attempts at competition by other parties seeking to describe themselves explicitly as liberal parties, if their name is confusingly similar to "Liberal Party" ("liberals for forests", for example, is OK). The Liberal Party can be as indifferent or even hostile to actual liberalism of any form whatsoever as it likes, and anyone else wanting to grab the name for themselves can be as liberal as they like, but the Liberals keep the brand, because they were the trolls who got there first.*
Indeed, when the Liberal Democratic Party (a right-wing fundie-libertarian micro-party that I'm not all that impressed by) tried to register under even that name, the Liberal Party tried to block even that (as too did the zombie-film remains of the Australian Democrats). You can see the decision here. And here we are again, with the supposedly "Liberal" party attempting to preclude a competitor's ability to self-describe as "liberal". Are they really afraid that people might become confused into thinking it is even possible to be a Liberal and support, say, same-sex marriage?
There Are Independent Liberals And ...
That brings me to the question raised by Willink: if Tony Mulder calls himself an "independent liberal" (small letters) when running as an unendorsed candidate without any objection from the party, surely Willink can do the same?
No, apparently the difference is that Willink does not have the party's permission to campaign as an "independent liberal", but Tony Mulder did. Now that sounds like a reasonable basis for the party to be keen to product-differentiate, and perhaps an unsurprising basis for it to throw around some nasty stuff so that Willink will complain and draw media attention to the fact he isn't an endorsed Liberal. Even articles like this one may play into the party's hands in terms of what it is aiming to achieve by trying to heavy the candidate.
Furthermore, there's nothing that odd about paid-up party members who wish not to be bound by caucus solidarity describing themselves as Independent Liberal or Independent Labor, though quite often this is really done tactically to exploit the perceived advantages in being an "independent" candidate in Legislative Council elections. I believe that in the Mulder case, it started out as accidental genius when the party could not agree on a formal endorsement for the seat.
But the funny part of it is what this combination of stances means for how the party views Tony Mulder MLC. Effectively, the party is saying that there are formally unendorsed candidates it informally endorses, and formally unendorsed candidates it doesn't informally endorse, and hence that Mulder was its endorsed unendorsed candidate! It gets even stranger on the Tasmanian Parliament website, where Mulder now looks like he's the representative of something that does not exist (because the Liberal Party would kill its registration if it tried to), namely the "Independent Liberal Party".
The key test
These are the critical words from the above-mentioned federal case Evans v Crichton-Browne:
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.
The state electoral law is no different. Every time you see a political party complaining about "misleading" statements that are clearly of the latter variety, as in this case, you can tell it's at least one of three things at work: desperation, cluelessness, or a confected complaint to attempt to get media attention.
If the Liberal Party has formal legal advice even claiming that Hans Willink has breached anything, then I call on them to release that advice in full.
Update: I have now seen the McQuestin letter to Hans Willink. Quite aside from suffering from a rampant inability to quote correctly (eg describing a sign as saying "Independent Liberal” and "independent liberal" when it in fact says "Independent liberal" (!)) the letter is remarkably heavyhanded and demanding.
# The guide contains at least two errors. It overlooks Jim Wilkinson's public statement that he would give up the law if returned and also states incorrectly that he voted against the forests peace deal in 2012. He voted to defer the deal in 2012, and ultimately voted against the amended version in 2013. In another howler, GetUp! recently tweeted that the election was on next Friday!
* A joke about internet forum moderators is that they are "the trolls who got there first" - implying that occupancy trumps principle. As a forum mod who's used my buttons to push the buttons of a few silly trolls in my time, I can say it has a grain of truth in it somewhere!
UPDATE 3 May: What Is An Unendorsed Liberal Non-Liberal?
This evening on Twitter, Opposition Leader Will Hodgman personally endorsed Jim Wilkinson for Nelson:
This interested me, because in 2001 my mother, Pru Bonham, was personally endorsed by then Labor Premier Jim Bacon, who, when he found out she was running, spontaneously offered to support her campaign.
Bacon's offer (and Bonham's acceptance of it) resulted in an attack from the then Liberal Opposition Leader in Question Time on 28 March 2001:
Mrs NAPIER (Question) - Mr Speaker, my question is to the Premier. Premier, now that you have publicly confirmed Pru Bonham as the unendorsed Labor candidate for Nelson as part of your crusade to whip up race-based [she was referring to Aboriginal reconciliation - KB] Legislative Council elections in May, will you provide details of the types and levels of assistance which will be provided to assist Ms Bonham in her campaign, both by the Parliamentary Labor Party or by the Labor Party organisation in this State? Will Ms Bonham be provided with letters of support, direct or indirect funding assistance; will you be authorising her campaign material, and will the Labor Party provide her with foot soldiers? Premier, is it not unprecedented for the Labor Party to so strongly back a so-called independent candidate for the Legislative Council, and why was the Labor Party unable to get their own candidate?
(Bacon's response can be read, while the link works, here.)
It was not Sue Napier's best moment, given that some of the things she were insinuating the ALP might do are known to be illegal.
Will Hodgman was not quite in the parliament at that time (he was elected one year later). But either the Liberal Party's standards have changed since 2001 (in which case they should repudiate their former leader's attack) or else they have not changed. If they have not changed then the Liberal Party, by its former leader's own admission, regards a candidate endorsed in a personal sense by a party leader as that party's unendorsed candidate. That would mean that the Liberal Party regards Jim Wilkinson as the unendorsed yet party-approved Nelson candidate - ie he would be, in their eyes, like Tony Mulder, an endorsed unendorsed candidate. That even though, to my knowledge, he is not a party member.
And indeed, there is plenty of evidence that an endorsed unendorsed candidate is what Wilkinson is. Quite aside from the party's vigorous hosedown attempt of a rival for the party vote, here is some Wilkinson signage from the campaign trail:
Apart from that the one on the right is an excellent election sign, what should be noticed here is that both of these signs employ the famous color Liberal Blue (as featured under that name in every Dulux and Berger paint guide doubtless.) "Liberal Blue", which is apparently envisaged by Sam McQuestin as any shade of blue much darker than the sky, is, as we know from the above, a party trademark which will be zealously protected! After all, this is what they said in their letter to Mr Willink:
"We therefore demand that you immediately cease and desist generating, distributing and/or broadcasting any advertisements or electoral material containing the term “independent Liberal”/”Liberal” and “Liberal/liberal”, and producing any electoral material using “Liberal Blue”. [my bolding - KB]
So Hans Willink is asked to stop using Liberal Blue because he does not have the party's permission to use it, but Jim Wilkinson continues to use Liberal Blue without controversy. The party is clearly not bothered by Wilkinson parading himself in party colours, and why should it be? He nearly always votes with them anyway!
Now it would be mean of me to argue that if someone votes like a Liberal, campaigns like a Liberal and is endorsed by a state Liberal Leader then they must in fact be a Liberal. I won't. But I will point out that the Liberal Party has considered people to be tacitly Labor candidates for less, when they were not even members of the Labor Party either.
In 2001 it was a cheap shot for Bacon, in response to Napier's even cheaper shots, to call Jim Wilkinson the Liberal Party's candidate for Nelson.
I struggle to see how it is still a cheap shot now.