Jan 30 2008
Play it again, Fran
Two months after the November 24 federal election, the fun is still not over: Labor’s candidate for McEwen, Rob Mitchell, has launched a challenge against his 12-vote defeat at the hands of Liberal member Fran Bailey, who won on a recount that overturned Mitchell’s initial seven-vote win. The disparity between the two counts can essentially be put down to differing rulings by the divisional returning officer, who oversaw the first count, and the state returning officer, who adjudicated on 640 disputed ballots. Ben Doherty of The Age reported on Labor’s complaints after the poll was declared on December 18:
The Age was told that on one ballot paper, an elector had crossed out the names of all the candidates, replacing them with the hand-written names “Mark Skaife”, “Craig Lowndes”, “Todd Kelly” and other V8 Supercar drivers. The voter then donkey-voted, numbering the boxes alongside one to eight downwards. The numbers favoured Ms Bailey on preferences and, after being ruled informal in the initial count, it was contested by the Liberal Party and ruled a formal vote for the recount … Most of the disputed ballots are in question because of hard-to-read numbers, or “1”s which might be ticks.
The High Court now has the power either to overturn Bailey’s win, or declare the result void and initiate a by-election. For what it’s worth, the Electoral Act states that the court “must make its decision on a petition as quickly as is reasonable in the circumstances”.
January 30th, 2008 at 9:45 am
Has Mark Skaife also asked for a re-count?
January 30th, 2008 at 10:11 am
Will Fran be able to take her seat in parliament in a couple of weeks, or will her seat ber vacant until the court rules?
January 30th, 2008 at 10:34 am
Surely there is some legal principle on how unclear votes should be allocated? If there is no clear intention to vote for a candidate then the vote should be considered informal rather than being allocated to a candidate either as a donkey vote or via any other allocation method. If Fran Bailey’s representatives seriously tried to argue that a vote for supercar drivers is a vote for her then those words should be quted against dear old Fran in any subsequent elections.
Who was the State returning officer? This seems odd.
January 30th, 2008 at 10:57 am
You can only hope that this is not a nuisance challenge and that the ALP has compelling grounds. The example quoted, if true, certainly is bizarre but were there enough of them. The voters will not forgive an unnecessary by-election.
January 30th, 2008 at 11:14 am
I have an easier solution. Abolish the seat.
January 30th, 2008 at 11:32 am
The compelling grounds for this petition would be that the ALP scrutineers were aghast, horrified and totally flumoxed by the decisions made by the AEC’s Australian Electoral Officer for Victoria, Daryl White, who, during the official recount of informal ballot papers, overturned many of the formality decisions made by the long-standing and highly respected Divisional Returning Officer for McEwen, Bob Berglund, in order to favour Fran Bailey.
Note that Section 268(3) of the Commonwealth Electoral Act 1918 makes it clear that decisions on formality should favour the franchise by admitting votes where the voters intention is clear. Mr White seems to lack familiarity with this provision.
This is not a nuisance petition if the ALP scrutineers have done their job and made proper records of the offending decisions by Daryl White for the purposes of the proceedings. Our democracy will be enhanced if the High Court follows the intention of section 268(3) and favours the franchise in its rulings, making it absolutely clear for future elections which way such ballot paper formality disputes should lawfully be decided.
If this means Fran Bailey loses her seat as a consequence then we the people are the winners - not just the ALP.
January 30th, 2008 at 11:34 am
Well note that the AEC site says about the voting process (http://www.aec.gov.au/Voting/How_to_vote/Voting_HOR.htm):
“An informal ballot paper is one that has been incorrectly completed or not filled in at all. Informal votes are not counted towards any candidate but are set aside.
A House of Representatives ballot paper is informal if:
* it is unmarked
* it has not received the official mark of the presiding officer and is not
considered authentic
* ticks or crosses have been used
* it has writing on it which identifies the voter
* a number is repeated
* the voter’s intention is not clear
Note that if a House of Representatives ballot paper has all squares numbered but one then it is assumed that the unmarked square constitutes the last preference and the ballot paper will be deemed formal.”"
Seems pretty clear to me that the ballot paper described to the Age should be clearly deemed informal - how clear is the voter’s intention if all the candidates names have been crossed out? Wonder what other similar decisions were made on the recount?
January 30th, 2008 at 12:23 pm
this is a serious issue
i understand that there were many votes ruled out because of “technical” concerns over handwritting
ie if the loop on a six did not fully complete the circle then it was ruled invalid
the same as if the horizontal line on the figure 4 did not cross the upright line it was ruled out
or where a number 8 was ruled out as the two circles did not meet when viewed under a magnifying glass
these were despite all other squares having a numerical sequence in them
January 30th, 2008 at 12:32 pm
Does the HC have to make it’s decision by Feb 12 - when Parliament is due to sit? You would think not. Therefore, what happens on that day? Is Bailey sworn in, only to potentially be kicked out again some days/weeks later? Or is she considered to not be a member of parliament until this is completely confirmed?
This is all getting very messy
January 30th, 2008 at 12:48 pm
You would think that, if three counts of the vote led to different results, it’s pretty clear that it is almost impossible to determine the will of the electorate.
Another count would almost inevitably lead to another result (at least in terms of votes cast).
There is no way to determine the will of the electorate in this case except to ask them the question again.
I would tip Rob Mitchell romping home. The idea that this kind of byelection goes against the complainant has held true where the complaintant was a member of the Opposition party, not the ruling government.
January 30th, 2008 at 1:05 pm
if franny gets up after this challenge i tip her as the future leader of the libs
(she wins hands down for spin)
January 30th, 2008 at 1:22 pm
Possibly a way to make some quick money if Fran gets into parliament and is then removed.
Section 46 of the constitution:
any person declared by this Constitution to be incapable of sitting as a senator or as a member of the House of Representatives shall, for every day on which he so sits, be liable to pay the sum of one hundred pounds to any person who sues for it in any court of competent jurisdiction.
Section 48 says that members are to be paid 400 pounds p.a. until further notice, I guess the equivalent today is about $40K per day
Unfortunately, I don’t think this includes members unseated by the court of disputed returns.
January 30th, 2008 at 1:24 pm
Yes, Bailey is an MP until the court decides otherwise.
Personally, I don’t have a problem with the Supercar ballot paper. The boxes have been numbered correctly and scribbling on the ballot paper is permitted, so long as it doesn’t identify the voter.
January 30th, 2008 at 1:29 pm
DW @ 11
But the candidate’s names had been struck out. That could be argued from many standpoints to be a clear indication that the voter rejected the choices on offer and did not intend to register a vote for any.
And this one paper is not sufficient to carry a case to the CoDR. I can’t wait to see what alleged infamies of electoral (mal)adminstration occurred. Roll on the transcripts!
January 30th, 2008 at 2:48 pm
So according to the ALP, Fran Bailey was squealing and had sour grapes when she called for the recount.
Maybe she could now point out that sometimes it takes one to know one.
January 30th, 2008 at 3:02 pm
I can tell you a 100%, that there where 100’s of votes received and counted for both sides with no offical mark…
“A House of Representatives ballot paper is informal if:
* it is unmarked
* it has not received the official mark of the presiding officer and is not
considered authentic
* ticks or crosses have been used
* it has writing on it which identifies the voter
* a number is repeated
* the voter’s intention is not clear”
January 30th, 2008 at 3:04 pm
Don’t worry, Fran’s been squealing something like that.
January 30th, 2008 at 4:13 pm
B-Mann
canberra times
“Ms Bailey has not ruled out a high court challenge”
did she stand by or subsansiate her claims
January 30th, 2008 at 4:15 pm
G - it is not unusual for polling officials to forget to initial the ballot paper. This is naughty but not necessarily fatal.
Note the “and” in your quoted informality rule, it does carry meaning:
“it has not received the official mark of the presiding officer and is not
considered authentic”…
January 30th, 2008 at 5:39 pm
I thought it was declared informal if there was any sort of markings made over any words on the paper.
January 30th, 2008 at 5:49 pm
Question on Section 46 of the consitution: So does any person means any person? There are 21 million Australians. If we did find someone to could be sued under the rules can we all sue? That would be a big chunk of change.
Not that Bailey would be invalid until the courts rule otherwise so she is safe in that respect. Most likely it will be a re-ellection in that seat if there are enough questionable votes on either side.
January 30th, 2008 at 7:33 pm
Re: S46 - as far as I know it means anyone and everyone
January 30th, 2008 at 7:55 pm
Can anyone else hear those damned violins????
http://www.theaustralian.news.com.au/story/0,25197,23130209-5013871,00.html
January 30th, 2008 at 8:27 pm
GG
perhaps we should start a collection for them on PB’s . There’s heaps I’d like to give them.
January 30th, 2008 at 8:31 pm
Not a bad idea.
I’ve got a needle and thread to help them darn their socks during Parliamentary sittings.
January 30th, 2008 at 8:33 pm
Base salary for a Federal MP is $127,500 pa and some of them are doing it hard! I don’t begrudge them their money, but where’s their sense of reality?
January 30th, 2008 at 8:58 pm
I have suggested (over at ozforums) starting up a charity to support them in their hour of need….after all, they did so much for us.
I reckon if we pass the hat around, we should be able to send Tony a few bucks, a few used tissues and some comb fluff.
January 30th, 2008 at 9:43 pm
Is the complaint purely about whether the 640 disputed ballots are formal or not, or have they found enough electoral role irregularities to help with the case? Of course there can be the standard ones of booth workers marking off the wrong people so it looks like they end up voting twice, or an elector pre-polls but dies before the end close of polls (my understanding that is valid).
I’d like to see all the details, but then again that is what the Court of Disputed Returns does.
January 30th, 2008 at 10:33 pm
Will From Kooyong
Mitchell on ABC says its about the 640 votes and the interpetation that Whyte ruled on
January 30th, 2008 at 11:11 pm
Fran Bailey made many unsubstantiated claims during the count. When she won none of these were mentioned again..all her charges were dropped and silence reigned.
It seems that the court might now order a “re-election”.. to use the term employed in the Greensborough by-election of 1973..in which case the ALP has all the advantages,,,some young voters were unabe to vote due to the closing of the polls,and they will now be on the rolls…a huge plus for Labor..and Rudd can give all sorts of goodies to the electorate..and make a series of visits himself.
Of course the Libs may benefit from the absence of Little John Howard…it’s a real test for Nelson’s famed charisma..
Fran better get set for retirement !!
January 30th, 2008 at 11:44 pm
Deafening Judge Growler, just deafening.
January 30th, 2008 at 11:44 pm
Soooo, it could be 84 seats to the ALP then, after all. We might have to dust off the list of predictions and grab back certain gold medals and reallocate bragging rights all over again, hmmm?
Oh goody.
Not that my prediction wouldn’t still be wrong. But I’d be very slightly less wrong if Fran goes under.
btw the other Bailey, Michael, has taken a job at the Nine network… weather on Friday and Saturdays, climate change roundsman the rest of the time. (Thought you’d like to know that Rates Analyst, if you haven’t heard already.)
January 31st, 2008 at 7:32 am
zoom -
I’m afriad my comb fluff is being retained for more worthy recipients.
January 31st, 2008 at 8:27 am
To declare the election in valid, there needs to be enough questionable ballots to material effect the outcome. So that means that there has to be at least 13 votes out of 640 which are incorrectly ruled on. That is just 2% and that is probably not going to be too hard to prove, so that is why I would say we are heading for a by-election.
It is far less likely that they will rule the ALP candidate elected than either a by-election or no change in the result.
January 31st, 2008 at 11:06 am
zoom - put me down for a farthing.
January 31st, 2008 at 12:11 pm
David,
Should that “h” be there?
January 31st, 2008 at 12:28 pm
zoom -
i’vre just emptied the vacuum cleaner if that’s any help.
Hapy to donate the lot to Fran to help with the new ballot.
January 31st, 2008 at 12:30 pm
It might not be a by-election. If the challenge is just on the 640 votes, the court can just rule on them and decide if any can be admitted to the count. Then it would determine the winner. That happened in Nicklin at the 1989 Queensland election when the Court of Disputed Returns decided whether a contested two dozen ballots were formal or not. The Court admitted some to the count which resulted in the initially victorious Liberal MP being replaced by the National candidate.
In NSW in the 1970s, a Court of Disputed Returns clarified state electoral law on what was a formal vote. It clarified that a vote where the number was outside the voting box was informal, where every other state would have treated it as formal. It is only recently that NSW changed the electoral act to overrule that case law.
If the McEwen appeal is as reported, it is about whether the count was correctly conducted, not the election, so the Court has the power to consider whether the correct person was duly elected and there is no requirement for the election to be reconducted.
January 31st, 2008 at 12:37 pm
Thanks Antony -
I’ll put the bag in the bin then.
Hope you are enjoying post-election life .
(what do you do in between polls?)
January 31st, 2008 at 1:03 pm
If we are doing food parcels for poor, relevance deprived Libs, then a bottle of specially brewed Dr Growlers “Bulls Hit Rejuvinating and Restorative Serum”, might do the trick.
The label says it brings colour to your cheeks and restores the fire in the belly.
However, it is repository!
January 31st, 2008 at 1:06 pm
GG
Does it bring the dead back to life?
January 31st, 2008 at 1:07 pm
Remember Phillip Ruddock?
January 31st, 2008 at 1:50 pm
Do I have to?
January 31st, 2008 at 1:50 pm
He wasn’t alive was he?
January 31st, 2008 at 1:59 pm
That was a rhetorical question BTW.
January 31st, 2008 at 2:06 pm
Jen,
Yeah, it wasn’t our best outcome. Unfortunately, we used a smidge too much “malice of zombie” and the reult is there for all to see.
January 31st, 2008 at 2:16 pm
Looks like one of Baldrick’s very cunning plans…………
http://www.theaustralian.news.com.au/story/0,25197,23137409-601,00.html
January 31st, 2008 at 3:00 pm
Indeed`Sire,
Almost as good as Fricassied Rat
January 31st, 2008 at 3:01 pm
GG #47, what a cynical, calculating, malevolent,selfish plot this is, and that’s without descending into hyperbole!
They don’t give a damn about the state of the economy, the “battlers”, previously so dear to their hearts, or the “mums and dads”. They actually contemplate taking steps calculated to damage the economy so as to give themselves ammunition to use against the ALP.
A pox on their house and a 100 years in opposition.
January 31st, 2008 at 3:09 pm
FS
you seem su5rprised.
they ahve NEVER given a damn about the battlers or the less-than-wealthy in this country.
100 years be damned: Oblivion.
And I’m saving the hyperbloe for when they do something out of character.
January 31st, 2008 at 3:11 pm
(surprised, have, hyperbole)
January 31st, 2008 at 4:07 pm
BOOM BOOM
January 31st, 2008 at 4:13 pm
Jen @ 39 - I believe the ABC props department store Antony in a closet with Mr Sqiggles.
January 31st, 2008 at 4:18 pm
MF -
cute!
January 31st, 2008 at 4:28 pm
GG @ 47
thanks for the heads up…thats a great read
January 31st, 2008 at 5:09 pm
If they just re-look at ballots, people who bet on Labor winning the seat might be a bit miffed.
January 31st, 2008 at 5:37 pm
This will be interesting to watch as I am told their is a case to answer. Overall the count was much better conducted the the Western Meto Count in Victoria by the VEC. There the result of the election changed significantly with 150 votes going missing between the count A and count B as well as in the distribution of votes. The total number of votes counted should not change at all and certainly not as much as 150 votes.
If Nunawading is a case to go by the Fran will be entitled to sit until the court rules. I know the ALP looked very carefully at the results and the evidence before deciding to challenge the results.
On the another issue The AEC has not published the detailed Below-the-Line preference data nor have they provided a reason or response as to why. We will be submitting a FOI request in February to ensure that this information is published and the conduct of electronic counts remains open and transparent. This is a serious blight on the AEC’s record which is much better the the VEC’s. Two main issues are of concern the refusal to publish the BTL preference data and poor quaility information on the number of postal/prepolling ad absentee ballots issued.
January 31st, 2008 at 5:40 pm
MayoFeral @ 52 LOL.
January 31st, 2008 at 6:09 pm
Brian McKinlay @30: If there is a by-election it will be on the same roll which is ot under challenge.
Will From Kooyong @ 21 and Bert @ 20: The main criteria is that the voters intention is clear. Writing o the ballot papers is OK as log as it does not disclose the identity of the voter. I remember the NO DAMS protest and I often write a short message or place and smiley face on my ballot if I am voting in a booth where I will be scrutineering.
Kevin Rennie @ 4. I can assure you this is not a nuisance challenge. Whilst a opposition party would always challenge a result A governing party would need to think carefully and be sure that their case has merit. This is the case in McEwen
I agree that when a recount of a ballot produces a different results to teh first cut ad the total number of ballot papers coated differs significantly between the two counts or the umber of ballots under dispute is greater then the margin of success the there should be a third count to verify that mistakes were not made in the second count. The overall result should be confirmed at least twice. This very much is my concern also about the Western metropolitan District in Victoria where the total number of votes changed significatly bad the ALP dropped by 600 odd votes in the allocation. The winning margin was less the 150 votes.
January 31st, 2008 at 6:16 pm
the Mai difference as I am aware between the West Metro Count and McEWe is that in West Metro teh problem was with the way the count itself was conducted ad lack of due diligence o behalf the the VEC.
I McEwen it is a question of interpretation of the validity of the vote. The total number of ballot papers recorded between count A and count B did not vary.
I agree with Antony Green’s comment’s above that the court will be asked to adjudicate on the validity of the excluded votes and the rule o the outcome of the election.
January 31st, 2008 at 6:23 pm
SW, please, it was such a nice day/read before you got here
January 31st, 2008 at 6:48 pm
Senate Watch and the VEC
a night out[/a]
January 31st, 2008 at 6:50 pm
william, once again, little help please
anyway, was meant to linkto this = http://youtube.com/watch?v=Q71_z55WjM0
January 31st, 2008 at 10:41 pm
senatewatch= bucket of cold water.
February 1st, 2008 at 9:49 am
The primary consideration really should be whether the voter’s intention was clear. It shouldn’t matter if certain digits are badly written as long as they are close enough and the entire sequence is present and obvious (IMO we should have _optional_ preferences, but that’s another debate, and the current mandatory system requiring all numbers actually makes it easier to determine the validity of a vote). Even if you take a harder line on handwriting, if the doubtful preference wouldn’t make a difference (e.g., your ‘4′ was no good, but your ‘1′ is clear and was for one of the top two candidates) then it should be declared formal.
If the candidates’ names are crossed out and replaced by racing car drivers’ names then it’s clearly informal (actually, the voter’s intention in this case _is_ clear; he/she did not take the election seriously). The example above of a vote with all numbers present except ‘1′ should be declared informal. The ‘1′ is obviously the most important number and if you leave it out no one can sure of your intention.
The overriding consideration should be whether a common-sense interpretation yields an unambiguous vote.
February 1st, 2008 at 2:22 pm
surely the test of the validity of a vote should be can the voters intention be
identified….. I think a vote should be formal if a clear first choice of candidate
can be seen…. as preferences as long as choices can be seem eg 1,2.333
shows clear second choice
February 1st, 2008 at 2:36 pm
New Morgan Poll.
It seems that 60/40 is the new black.
http://www.roymorgan.com/news/polls/2008/4267/
February 2nd, 2008 at 1:52 pm
I love a good artistic informal vote. The Supercars one is a classic, especially if it really was ruled formal as reported.
At one council election I scrutineered a voter put numbers in boxes down the wrong side of the page then did a fancy loop-the-loop thing with lines and arrows such that the numbers pointed to boxes. It was an absolute mess and would have taken several minutes at least to decipher; the returning officer decided not to bother.
In Tasmanian Legislative Council elections to vote formally the first three preferences have to be numbered (a rather strange requirement for a single-seat system, but there you go). One seat had eleven candidates. A voter numbered the squares in donkey order as follows: 1-2-3-10-20-30-40-50-60-70-80. It was ruled formal.
February 2nd, 2008 at 11:18 pm
69
And on one ballot paper in my booth in Fraser had a stunningly well-executed drawing of a donkey. It must have taken a few minutes to do.
February 8th, 2008 at 8:57 pm
SenateWatch:
“…the count was much better conducted the the Western Meto Count in Victoria by the VEC”
Still harping on about that? In the words of a great teacher of mine: “Build a bridge, and get over it!”
February 9th, 2008 at 9:42 pm
Going by the example shown above in Williams post I would say that that ballot most certainly should have bee ruled informal as the voters intention to vote for the printed candidates was most certainly unclear.
Like it or not the FEC voting experience is very much relevant to the conduct of this ballot. It highlights may of the issues that arise when a recount produced a different outcome and votes go missing. I sat though the Nunawading case and I have some insight into the sought of question that are raised. I have also participated in the various discussions on should the election results be contested. Western Metropolitan was a close call, there were may question left unanswered. I the end it was a decision not based o the likelihood of a reversal but equally as much as the political fall out. The ALP has not challenge the McEwen result lightly. It is backed by solid evidence and valid issues of concern.
Again I am of the belief that the election, if disputed, should be counted until the same overall result is confirmed at least twice. Mistakes can happen in a count. They can occur not only in the first count but also the second count. We know this from the recent Victorian experience.
February 9th, 2008 at 9:44 pm
Sean.. If we do not take ito account the mistakes of the past history we will be doomed to repeat it.
February 9th, 2008 at 9:52 pm
In the Nunawading case there was a lot more at stake. Balance and control of the upper-house. It was around that time that the ALP adopted a reform policy as opposed to just abolition. A policy that I had a lot of involvement in developing. Whilst all the focus was on Nunawading there were issues related to the conduct of the Monash Province election that never received any media coverage. Namely the “Save Price Henry’s” hospital ticket which was a Liberal front ticket giving the Liberal Candidate 1 and the ALP 2. This was the tactic that started the “Ticket war” yes it was legal as was the later Nunawading anti-nuclear ticket. Fun and games on the campaign trail and the ballot box
February 10th, 2008 at 1:57 pm
I wonder.
Does Senate Watch = Melb City?
You both trot out the same tired lines, harp on on past injustices etc
February 11th, 2008 at 1:54 am
Learn from history and correct the mistakes made in the past. The Victorian election was a good example as how Not to conduct a public election. There were more problems with the 2006 Upper-house elections then the 2007 Federal election.
February 28th, 2008 at 4:36 pm
A transcript of the High Court’s deliberations over some preliminary procedural matters pertaining to the McEwen challenge in the Court of Disputed Returns can be found at the following:
http://www.austlii.edu.au/au/other/HCATrans/2008/93.html
A timeline for the case has also been outlined. It appears to be going to the Federal Court.