Tasmania Redistribution: The Franklin Renaming Fiasco

In 1984 there was a proposal to rename the electorate that is now called Lyons (and was then called Wilmot) "Truganini".  For a little while this was being reported and discussed in papers, there was widespread opposition and the change was withdrawn.  Wilmot became Lyons instead.  I was twelve years old at the time and I remember this in broad outline.  But I wonder if the Augmented Electoral Commission's corporate memory goes back this far.  

Unfortunately we yet again have had a redistribution proposal for a Tasmanian electorate to have an Aboriginal name where that proposal has been supported out of pretty much nowhere and sparked significant opposition.  Last week's boundary announcement has seen 272 written submissions, most of them opposing the proposed replacement of the name Franklin with Tongerlongeter.

I want to contrast this with the process that led to the replacement of the name Denison with Clark.  By the time this change was made in the 2017 redistribution, there was a very well organised movement to change Denison to Clark.  This proposal had been active in the previous cycle and by the 2017 cycle its adherents included several prominent Tasmanians, judges, current and former politicians and there was even a petition supporting it.  It is true that the new name was not endorsed until the Augmented Electoral Commission stage but by that stage the proposal was so well known that anyone with anything to say had said it, and the change of name attracted only three further objections, I don't think any of them from Tasmanians.  People might have agreed or disagreed with the change but people knew why the change was being proposed, why Clark if there was a new name, and why there were objections to Denison.

The Chisholm and Kooyong Signs Challenges

Update Feb 20: The Federal Court has decided not to report anything to the High Court regarding alleged violations of the Electoral Act.  It has decided that it did not have before it such material as would allow it to decide that "the relevant fault element" was satisfied to be sure that an offence had been committed.  At [28], the Court holds: "We think the better view is that the Court is obliged to comply with s 363 when it is persuaded that there is material from which it can be concluded that a person not only was responsible for the physical elements of a contravention of s 329(1), but also that the relevant fault element was satisfied."

The function of a Disputed Returns hearing is to decide whether a seat needs to be vacated and it is not surprising that the Court did not turn over all the rocks that might have been needed to fully explore the question of whether an offence was committed.  That question was ultimately irrelevant to the outcome of the challenges.  This does however raise the question of what recourse there is over the misleading signs, if any.  Normally these matters would be pursued through the AEC (not necessarily to prosecution, perhaps a warning), but the AEC initially submitted that there was no offence anyway.  It might not be all that interested in trying to now establish whether there was a fault element involved in the production of an illegal sign that it did not consider illegal in the first place.  Especially, it is unclear who would be in a position to demonstrate that fault element in a complaint.   I am not sure therefore whether the matter will go any further.

Again, it is my view that these sorts of signs should be banned.  The above outcome of the case only further highlights why the existing law does not adequately address misleading and deceptive signs that pretend to be official electoral signs.

The only other action of interest today was the costs order.  The AEC is to bear its own costs.  The Court is considering ordering that the Commonwealth bear the costs of the successful defendants Liu and Frydenberg, the unsuccessful challenger (Garbett) in Chisholm (because of public interest) but not the unsuccessful challenger (Yates) in Kooyong (because of a it being a duplicate case that was obviously unrealistic given Frydenberg's margin.) The Court will determine these matters later on further papers from the parties.

Update Dec 24: As expected both petitions have been dismissed. However the Court has asked Simon Frost to show cause why an apparent violation of the Electoral Act by him and possibly others should not be reported, suggesting that it has provisionally found the signs were illegal but has found that the outcome should not be altered as there is insufficient evidence that they changed the results in those seats.  The judgement is available here.

The Guardian has an excerpt:

"“In our view, the corflutes are properly read, not as encouragement to vote 1 Liberal, but as a statement first, that to vote correctly (that is validly), one must vote 1 Liberal and, secondly, that there was an official instruction of the AEC that electors must cast their votes as indicated,” the court said."

The court has found that the signs did have the capacity to mislead electors (albeit naive, gullible or uninformed ones) in relation to the casting of their votes but that at most a handful of voters could have been so misled, nowhere near sufficient to overturn the result.  The court has found the signs only had capacity to mislead where they were placed next to an AEC sign.  Simon Frost has been given a chance to argue that he should not be the subject of a declaration of illegality because he was not represented while giving evidence in court.

Update Dec 21: Judgement in these cases will be handed down at 2:15 pm December 24.

Updates Nov 6-8

The case, before three judges, is now on, and expected to run for three days, after which the court may well reserve its judgement.  Tweeted coverage is being provided by Josh Taylor of the Guardian and I will link here to other reports of interest that I see.  If anything of special interest comes up I may discuss it at length here.

Nov 6 12:30: Of some interest today is discussion about the signs having said something different to what was intended (as touched on below) - Frost says that he provided an intended meaning but the actual signs when translated said something different.  According to Taylor "Frost said he made no inquiries on election day to make sure the corflutes said what he authorised them to say. Frydenberg and Liu didn't contact him to ask about them on election day" and "Frost says he doesn't know if anyone who proof-read the corflutes before election day speak/read Chinese." (It may be significant here that Liu could read the signs for herself.) However later in his evidence Frost said that the Hotham Liberal candidate, George Hua, checked the signs.  According to Taylor, Frost has also admitted that the corflute was intended to convey the impression that it was an AEC sign.

Under Section 329 (5) "it is a defence if the person proves that he or she did not know, and could not reasonably be expected to have known, that the matter or thing was likely to mislead an elector in relation to the casting of a vote." however "Note: A defendant bears a legal burden in relation to the defence in subsection (5) (see section 13.4 of the Criminal Code )." It should be kept in mind that Simon Frost is not on trial for breaching Section 329 at present.

Electoral Process, But Not As We Know It: Postal Plebsicite V2

An article I wrote about the serious defects of a postal plebiscite (back on the annual day reserved for silly jokes) has for some unfathomable reason more than doubled its hit tally in the last 24 hours.  Now that a postal plebiscite (but run by the Australian Bureau of Statistics, not the Australian Electoral Commission) has been announced by the government, it's time to update certain aspects of my commentary.

What it appears we will have (unless it is disallowed by the courts) is something so bizarre that it was not anticipated in any of the many polls about a plebiscite.  Effectively, it is a national vote on whether the government will allow a conscience vote to be brought on in the parliament.  (If the plebiscite proceeds and the "no" side wins, then the government will block a conscience vote, presumably ending any prospects for same-sex marriage for so long as the Coalition stays in power.  This rather heavy-handed approach appears to be an attempt to prevent a mass boycott from working.)

Is it constitutional?

I don't know, but we'll probably find out soon enough.  At least two sets of campaigners against the proposed plebiscite are filing for injunctions against it.  Section 83 of the Constitution requires that appropriations must be supported by law, and no law has been passed for this plebiscite.  However there are various standing general-purpose appropriations that governments have flexibility to use for the ordinary running of government, and also in emergencies.  The question will be whether an appropriation for this purpose is valid.