Tuesday, August 13, 2013

The Anti-Wilkie Denison Billboard Stoush

What's all this about, then?

Denison independent Andrew Wilkie has taken exception to a billboard that shows him shaking hands with Tony Abbott, next to a slogan "IF ANDREW WILKIE WINS DENISON,  {big space} TONY ABBOTT IS ONE VOTE CLOSER TO BECOMING PRIME MINISTER" and above a slogan "VOTE WILKIE = GET ABBOTT".  See photo here.  Wilkie has claimed the billboard to be defamatory and misleading (here).  ALP national secretary George Wright replies here.

What does the billboard actually mean?

A billboard has a received meaning that goes beyond just the literal meaning of the words.  In this case, a handshake implies a deal, and the billboard therefore alleges that Andrew Wilkie either would deal with Tony Abbott, or has already dealt with Tony Abbott, in a way that could cause Abbott to become Prime Minister.   Lin Thorp's claim that there is no intent to imply a deal is irrelevant even if it is true, which it probably isn't.  The implication exists whether it is intended or not.

Is it true based on Wilkie's own statements that Wilkie winning Denison instead of Labor could cause Abbott to become Prime Minister?



On the basis of Wilkie's own statements, yes - but the chance is low* and it is not as clearcut as some people may think.  Andrew Wilkie has stated that he will not enter into any deal/agreement to support either party.  This has been widely interpreted as an intention to abstain from decisions on confidence.  Actually, there is nothing in what Wilkie has said that precludes him from deciding to support one side or the other on specific confidence motions (or even on confidence through the parliament), but without any formal "agreement" with the side thus supported. Furthermore Wilkie has stated he would consider confidence motions on their merits.  That clearly implies that he is open to voting on them and would not necessarily abstain. 

A similar statement occurs in a mailout to households by Senator Carol Brown:

"It is only Federal Labor and Jane Austin who can deliver Better Schools in Denison because Andrew Wilkie has said he will not support Kevin Rudd and Labor after the Federal Election."

Again, Wilkie has said he will not enter into an agreement to support.  Not the same thing.  Indeed, following the return of Kevin Rudd to the Prime Ministership, Wilkie announced that he would support Rudd to be PM until the election, and did so without entering into any deal or agreement, although his no-deals policy was already public knowledge. 

All the same, if Wilkie won't enter into agreements, that raises the chance that he would find neither party satisfactory and withhold support from both.

For instance, a 74-74-2 parliament is, in theory, possible, though it's looking quite unlikely at the moment.  In such a parliament, a decision by Wilkie to support Labor would probably ensure there would not be a Coalition government without a fresh election.  But a decision by Wilkie to abstain would at least give the Coalition the option of dealing with Bob Katter, if he was willing. 

By asserting that if Wilkie wins, Abbott "is" one seat closer, the sign implies that a Wilkie win definitely goes in the Coalition column, either as a vote for the Coalition or an abstention.  Even considering just the wording of the sign, and not the image (hence treating the sign as if it doesn't assert a deal) the claim is unfounded speculation at best.  No-one can know that it is true, and what is known suggests it may well not be.

At the first Denison debate Wilkie explicitly promised he would do "everything in my power" to prevent Tony Abbott from repealing the carbon tax or introducing harsher asylum seeker policies (and that comment is relative to those existing under Gillard, not Rudd.) Adhering to that commitment while also adhering to his commitment not to do deals requires that Wilkie would support Labor and oppose the Coalition on confidence and supply, without making a specific deal/agreement to do so, unless Abbott backed down on both those policy areas.

Compare the hypothetical: "If Andrew Wilkie wins Denison, Tony Abbott could be one seat closer to becoming Prime Minister." That also sounds like a scare campaign, but given that Wilkie has not unequivocally ruled out supporting Tony Abbott on a specific confidence or no-confidence motion, it is a valid conjecture.

[* Clarification added:  A part of my reason for writing that the chance is low is that another hung parliament probably won't happen.  To determine the probability of Wilkie winning Denison causing Abbott to become PM it is necessary to multiply (i) the probability of a hung parliament by (ii) the probability that if there is a hung parliament, Wilkie would either support Abbott, or abstain in a way that caused Abbott to become PM.  A "nowcast" assessment of the chance of (i) would be about 2%, but if Labor's polling improves it will rise.  However even if polling is more or less dead even, a hung parliament won't be the most likely result.]

A deal by any other name

Even though Wilkie has ruled out any specific deal of the sort he entered into in 2010, it is still possible to imagine a kind of tacit deal process unfolding.  Supposing there is another hung parliament, in advance of a confidence motion Wilkie could respond by refusing to declare his hand and refusing to negotiate.  Party leaders could then unilaterally announce changes to their policy platform in the leadup to a vote on confidence, and Wilkie could then unilaterally announce he had decided to support party X because he was impressed by their policy changes. What Wilkie's comments thus far rule out are formal agreements for long-term support of the type entered into after the last election.

Is Labor accusing Andrew Wilkie of lying?

Probably, and it seems hard to avoid reading the ad as a whole in such a way.  Another possible reading is that even if Wilkie is being sincere about his intentions not to deal with Abbott now, he may well change his mind and deal with him later.   Labor knows this territory all too well through the famous backflips of both of its Prime Ministers this term ("no carbon tax" and "no circumstances" for returning to the leadership - both described by opponents as lies, but not necessarily so).   A lie is a statement that is known to be false when it is made; a broken promise made sincerely at the time is not a lie.  In any case, the ad implies that Wilkie will deal with Abbott in future, even if he says he will not do so now.  It is at least a claim that Wilkie will break a promise.

Is the billboard defamatory?

Yes and no.  The term "defamatory" is widely interpreted as meaning something over which one could successfully sue for defamation.  While Wilkie has not threatened legal proceedings, letters declaring something defamatory and requesting its removal are often construed as legal threats unless stated otherwise.  If Wilkie attempted to sue for defamation over the billboard he would have very little chance of prevailing because of the implied freedom of political communication in the Australian Constitution.  (Or, more accurately, the implied freedom from unreasonable restraint of political communication - not quite the same thing!)

Technically under defamation law, however, there are matters that are defamatory, but for which there is a valid defence, meaning that they are technically "defamatory", but not successfully actionable.  This is, most likely, one of those.  But that range of comments also includes, for instance, statements that damage someone's reputation but are appropriate because they are true, so just declaring a statement "defamatory" in this way is not really much of an insult by itself. 

Is the billboard misleading in the way suggested by Wilkie?

It's hard to predict how a few people with little attention span or interest in politics might be fooled by any particular billboard, and there is indeed a degree of colour/theme mimicry of Wilkie's own material going on here.  Even those of us who pay some sort of attention can be fooled sometimes, and I remember that when I saw a 2007 Labor attack billboard with a picture of John Howard and a quote about Australian working families having never been better off, I initially thought it was an unusually smug Liberal ad. All the same, I don't think the risk of voters reading this one as an advertisement for Andrew Wilkie is that great (and if it is, he might get Liberal votes out of it!)

The biggest (but still slim) risk of confusion I could see concerning the sign's authorship is that some people might mistake it for a Liberal Party ad encouraging Liberal voters to vote for Wilkie.  A curious irony here is that in the unlikely case that the Liberals and Greens both preference Labor ahead of Wilkie, it may become in Labor's interest to encourage Liberal voters to support Wilkie, so that the Labor candidate can stay ahead of the Liberal candidate in the cutup.

There is certainly nothing here that is misleading to the extent that electoral authorities would get involved (for more on the narrow meanings of electoral law on such things see my favourite article on this site so far, What Is An Independent Liberal?)

Why is Labor doing this?

Denison has been targeted as a seat Labor needs to win to try to win majority government, although it isn't as valuable in terms of winning government of any kind as winning seats from the Coalition.  Labor also has a good candidate in the seat, one who speaks as if she has already been in politics for years and who they are understandably keen to get into Parliament.

But it's not really working yet and Labor has reason to be getting a bit desperate.  Polls have shown that candidate quality does not overcome brand damage, Wilkie is well ahead on primaries (though there would have been some Rudd swing-back in Denison as everywhere else) and there is absolutely no sign of deals from other parties sufficient to win Labor the seat.   They're not going to get rid of the incumbent by playing nice. 

Short Memory

What is funny in this situation is that it is so reminiscent of this stoush from the 2010 poll, except that Labor has switched from complainant to target, just as the Liberals switched from target to complainant when they attacked Hans Willink over his Nelson LegCo ads. In 2010, the Liberals engaged in a beat-up about Labor preferencing the Greens in the Senate and made a misleading statement that contained just a grain of truth.  They claimed that a vote for Labor was a vote for the Greens when that was not clearcut, and Labor squealed and alleged the ad was illegal, which it very probably wasn't.

Now we have Labor engaging in a very similar beat-up, claiming that a vote for Wilkie is a vote for Abbott as PM when there is no firm evidence that it is actually true.  There are statements in Wilkie's reply that I don't find too convincing either, but at least he hasn't so far wasted the time and resources of the Electoral Commission!

"Aaaah, but that one was different, because ..."  Nope, I don't think it was really different in any way that actually really matters.  Nothing new under the sun in this game.

Disclosure: I Have Nothing To Disclose

Yep, I voted for Andrew Wilkie last time.  However, at this moment, I have no association with the Wilkie campaign or any other.

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Wilkie, Or Someone, Strikes Back (15 August)

Another billboard has been seen with the heading "ANDREW WILKIE HAS RULED OUT SUPPORTING KEVIN RUDD AND LABOR AFTER THE FEDERAL ELECTION".

As noted above in my comments on the Carol Brown householder letter, this claim is just false; Wilkie has ruled out doing a deal to support, but not supporting.

Someone has stuck up a banner declaring the billboard "A BIG FAT... LABOR LIE!"

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Labor Preferences Wilkie Last (21 August)

A remarkable further development today with Labor apparently preferencing Andrew Wilkie last on how to vote cards, even below the Liberals and Rise Up Australia, as reported by Matthew Denholm in the Australian. It must be a bitter blow to Labor supporters who only a few days ago were boasting about the ALP putting Rise Up Australia and Andrew Roberts (an independent with close links to some of Tasmania's most repulsive homophobes) last on their Senate paper.  That piece of moral high ground is gone. 

The contradictory nature of the reported move, if true, is incredible.  At one moment the ALP insists, on thin pretexts, that a vote for Wilkie is a vote for Abbott, just because he has ruled out a deal to support either side, and has not ruled out supporting an Abbott government.  At the next moment, the ALP preferences the Liberal Party ahead of Wilkie, meaning that should Denison happen to be the decisive seat and should Labor finish third, then Labor would gift the whole federal election to the Liberals rather than re-elect Wilkie, who often supported them in government the last few years and hasn't ruled out doing so again.  A vote for Labor in Denison that follows the how-to-vote card is therefore a vote for an Abbott majority government in the unlikely event that Labor fails to make the top two with Denison the decisive seat.

Before I get any further on this, the chance of the Liberals making the final two in Denison is pretty low.  Their campaign has been late getting started and low-profile, with a candidate previously unknown to most Tasmanians.  It's doubtful whether they'll beat Labor on primaries (despite a couple of polls in the Gillard days showing them second) and even if they do beat Labor on primaries, they'll probably be overtaken on Greens preferences.   And even if they do make it into second and benefit from a flow from Labor they're no certainties to beat Wilkie from that position. 

And I'll also say that if the Liberals do make the final two and then win on Labor preferences, the most likely reason for that would be that Labor was being thrashed nationwide, in which case the fate of Denison is irrelevant to the formation of government.

But it's interesting to ask just what Labor is up to, given that none of the stated reasons for putting Wilkie last stand up to scrutiny.  For instance:

* That the decision-maker was not fully aware of Rise Up Australia's policies: any political operative who would really not be aware of RUA's nature when making preference deals is hardly doing their job.  In any case, RUA are a very long way from obscure and a Google search for their name would give anyone a good idea of controversies involving them more or less immediately.  (And the implication that how-to-vote cards can't be reprinted isn't convincing.  They are not like Senate preferences that must be lodged at a certain time and then cannot be reversed.)  [UPDATE: The preferencing of Wilkie below RUA has been reversed; see below.]

* That Wilkie has talked down the party's record when it held the seat: Indeed he has, and it can be argued how much of this is or isn't entirely fair.  Nonetheless he is far from alone in this among Labor's opponents and it hardly justifies putting him below the federal Opposition.

* That Wilkie had said nice things about Tony Abbott.  If showing any level of support for Tony Abbott is a reason to put someone last, then surely the person who should be put last by that argument is a candidate of Mr Abbott's own party. 

* That it was necessary to keep the how-to-vote card uncomplicated.  Not true at all; with Tanya Denison and Andrew Wilkie first and second on the ballot, either could be put 9 and the other 10 (if it really came to that) without any impact on the complexity of following the card.  If anything, when your own candidate is near the bottom, putting the top candidate 10 and making your vote a bit reverse-donkeyish is simpler.

So these are all excuses and evasions; perhaps it is all just a big silly dummy-spit by Labor, and perhaps it's about strategy.  The first strategic aspect is that it may just be an attempt to rattle Wilkie's cage in the hope that he loses his temper, or to get press attention for negative claims about Wilkie. In this case the decision might later be reversed. 

The second - in which case they really are serious -  is that while Labor will probably make the final two in Denison, should it fail to do so then Labor might prefer to give the seat to Tanya Denison.

If somehow elected, Tanya Denison would be much easier to beat next time than Wilkie, not only because of her lack of experience but also because she is a Liberal, and the electorate is strongly pro-Labor if it reverts to a classic 2PP contest.  If this is the thinking, the move is a tacit concession that, for all last week's "one seat closer" claims, it is very unlikely Denison will actually decide the election.  Perhaps the move is even premised on the assumption that the election nationally is already lost. 

The strategy of the Denison contest is becoming increasingly odd.  It is in the Liberal Party's interests to help Wilkie win the seat if they cannot win it themselves.  Not only would they prefer him to be in federal parliament than Labor, but they would also dearly want him to not run for state parliament. If the election isn't close, it might even be better for the state Liberals that Wilkie wins the seat than that they do.  It is in Labor's interests to gift the seat to the Liberals if they cannot win it themselves, unless the election overall is very close.  So there may be perverse incentives for Labor supporters to strategically vote Liberal in order to try to cause Labor to come third, and thereby perhaps get rid of Wilkie.  There may also be perverse incentives for both Wilkie and Liberal supporters to strategically vote Labor in order to attempt to prevent this from happening, provided that they don't overdo it and elect the Labor candidate by mistake.

It is even possible to imagine a far-fetched scenario in which Wilkie could be defeated by the Liberals by virtue of getting too many votes, ie he would have been better off gifting some of his votes to Labor so that they came second.  If that sounds implausible, it is exactly what occurred in the 2009 Frome By-Election - had the Liberals been able to donate just a smidgin of their primary lead to Labor, independent Geoff Brock would have finished third and the Liberals would have won the seat.

But strategy aside, for Labor to offer that a vote for Wilkie is a vote for Abbott, and then preference the Liberals ahead of Wilkie themselves, is a move that suggests a remarkable arrogance that Denison is a "Labor seat", a destined-to-rule mentality more often a fault of the opposite camp.

The fact is that the northern half of Denison is still a "Labor seat", but the southern half is not, and a leftish independent is therefore a valid reflection of the electorate's strange combination of party allegiances.

Labor lost the seat of Denison in 2010 by treating the electorate with contempt.

The latest bizarre sequence of clearly contradictory attacks and mixed messages suggests not much has changed.

They haven't learned.

Invitation: If any Labor strategist would like to contribute a rational defence of their decision to put Wilkie last I would be happy to run it.

UPDATE (Aug 22): Curiouser and curiouser - Wilkie now second-last!

Here is a copy of a Jane Austin how to vote, which I believe came from a pre-poll voting centre:

Strangely, the reported preferencing of the Rise Up Australia party ahead of Wilkie, which as of yesterday was all too hard to fix, has been corrected and Wilkie is now second-last. 

But this version only further underlines my comment above about how the Labor claim about keeping the ballot order simple is just nonsense.  The vote reverse-donkeys from Labor to the Greens' Anna Reynolds (via, in order, PUP, FF, Stable Population Party, Sex Party and DLP) and then deliberately goes out of reverse-donkey order to preference the Liberals.

Another curious aspect of the card is the underlining of "you must" in the questionably literate sentence that includes "you must number every box as shown".  Many how-to-vote cards correctly remind voters that they must number every box, and "number every box as shown" is another common instruction.  The combination of the two instructions has been seen before, eg this ALP card from the last election.  I doubt it would be ruled that this illegally misleads the voter in relation to the formal requirements of casting a valid vote, but the potentially misleading nature of the instruction has been noticed before.  A voter with little understanding of the voting system or poor English skills might well get the false impression that a vote for the candidate that numbers the box in a different order will not be counted.

The Boot On The Other Foot In Melbourne

As further evidence of the gross double standards that seem to permeate all parties of any size when it comes to the treatment of misleading claims at election time, we now have a stoush between Labor and the Greens in Melbourne.  Labor has threatened to take the Greens to the Electoral Commission for saying:

"It's no wonder that here in Melbourne, according to The Age, Labor and Tony Abbott have worked on a preference deal in an attempt to lock the Greens out of the Parliament."

Now, I cannot find anywhere where The Age has explicitly stated as fact that such a deal exists or was "worked on", though I can find plenty of references to rumours of one (eg here).  The decision by the Liberals to preference Labor ahead of the Greens cannot be considered, ipso facto, as evidence of the parties working on a deal.  After all the Liberals did the same thing in the Victorian state election, unilaterally, and did very nicely out of it. There is also the possibility of tacit dealing, in which two parties act on the basis of their consideration of what the other party might like, without explicit communication between the two - though a tacit deal could hardly be described as "worked on".

So it seems Bandt's claim is false, unless there is some reference in The Age I have not found (which is possible as my reading of Age articles is mostly online rather than print).  But whether or not Bandt's claims are "false and misleading", they certainly do not mislead an elector in relation to the casting of their vote.  A "false and misleading" claim on the basis of them would be just a waste of the AEC's time.

So Labor in Denison beats up a claim of a deal where no evidence exists, but when Labor in Melbourne is the subject of much the same tactic, it not merely (apparently rightly) complains but also (incorrectly) asserts a breach of electoral law. 

Epilogue


Andrew Wilkie is certain of re-election having polled a primary vote currently above 38%, to about 25% for the ALP and 23% for the Liberals, together with a feeble <8% for the Greens, which I take as to some degree supporting my view that the Greens' tactic of criticising Wilkie over stuff likely to be seen as trivial backfired.  All up the two-party swing from Labor to Wilkie was 14 points, which exceeds the state swing from Labor to the Coalition, in spite of the Greens preferencing Labor (last time they did not preference anyone.)  From a fragile position in 2010, the incumbent independent has taken votes from Labor and the Greens.  Whether he has also taken votes from the Liberals (with these being cancelled out by the Liberals taking votes from other parties) could be resolved by booth analysis, but I don't think it's all that important.

The most remarkable comparison is this.  In 2010 Wilkie defeated Labor on a two-candidate preferred basis in every Hobart City and Kingborough booth, and Labor defeated Wilkie in every Glenorchy booth.  In this election Labor defeated Wilkie on a two-candidate basis in just a single booth of any size (Goodwood).  Indeed in two northern suburbs booths (Rosetta and Austins Ferry) Wilkie performed slightly better than in several Hobart City booths.

At the moment preferences from candidates other than Wilkie and Labor are running in Wilkie's favour by about 74:26.  This is a slight improvement on the just below 70:30 split last time.  If we assume the split from Liberals is similar to what it was last time then that means the split from other parties - a category that is 59% Green - was about two to one in Wilkie's favour.  It doesn't look like Green voters followed the how-to-vote card that preferenced Labor (not that this is news; Greens voters are never big HTV followers.) 

We will know the split of Green preferences between Labor, Liberal and Wilkie, and the split of Liberal preferences between Labor and Wilkie, in due course.  We will also know the 2PP split of Wilkie votes between Labor and Liberal.

What we will apparently never know for sure is what percentage of Labor voters followed the card.  But I have heard indirectly from scrutineers that it was very low and that Labor supporters mostly rejected their party's instruction to preference the Coalition ahead of an independent who had generally supported their government. 

The lesson of the 2010 election for Denison was that Labor does not own Denison, despite holding the seat for 23 years.  It had to take the electorate seriously, present a quality candidate and provide a valid argument for why it should be elected to the seat.

In the 2013 election Labor ticked boxes one and two - and made a hideous mess of box three.  Many voters who have voted Labor all their lives would have voted for an independent.  That said, it appears in retrospect that they could not have beaten Wilkie anyway.

6 comments:

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  2. That raises the question of whether an abstention should count as putting Abbott one seat closer or half a seat closer if it happens. I think the latter is technically more accurate, since an abstention has exactly the same effect as adding half a seat to each side's tally, in which case 1/3*1+1/3*0.5+1/3*0 = 0.5. :)



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    1. And quite obviously the opposite occurs in a 74-75-1 situation, which cancels that out.

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    3. I'm assuming 75-74-1 is really 74-74-2 with Katter supporting the Coalition, as there is no evidence Katter is remotely likely to lose. Sure, in that specific scenario Wilkie abstaining on confidence and Wilkie voting for Abbott on confidence are the same thing. But the placard doesn't reference a specific scenario (and probably wouldn't be punchy enough if it did.)

      74-74-2 would be a miserable parliament for Abbott to be PM in. If the Lower House is that close then the Senate will almost certainly be controlled by Labor and the Greens, meaning that Abbott's contentious legislation would be constantly blocked. Abbott would also have to go back on his commitment to not lead a minority government. He'd be looking for an opportunity for a fresh election any time he had a chance of winning it, but would be burdened by the perception of failure to win majority government this time around.

      Wilkie - if thinking mainly from the perspective of his own political future as assumed - would probably realise propping up such a government was not a path to serious control and was a recipe for a quick election at which Labor would be much more likely to beat him.

      In 1996 Tasmanian Premier Ray Groom promised he would govern in majority or not at all, and lost his majority. This resulted in Groom resigning as Premier and Liberal Leader and allowing Tony Rundle to take over as Liberal Premier in minority.

      The same thing could happen federally. The price of a Liberal minority government (in the unlikely case that that's where the numbers end up) could very well be someone other than Abbott leading it.

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