Saturday, February 10, 2018

Tasmanian Senate Seats Filled At Last

On Friday, Tasmania returned to its normal complement of Senators, having been down two since Stephen Parry and Jacqui Lambie resigned because of citizenship issues in November 2017.  It's been a long strange trip which started with the possibility that Parry's special count might unelect Nick McKim.  That was cancelled out when Lambie was also removed, only for two new issues to arise.  The first concerned whether Lambie's #2 and #3 candidates, Steve Martin and Rob Waterman, were even eligible, and it turns out Martin is and wants the seat.  The second, which is still to be resolved, is what happens with the Tasmanian term lengths, and I'll discuss this a little more below.

Lambie Network "Expels" Martin

A dramatic, if widely expected, event this week was that Jacqui Lambie announced that Steve Martin was being expelled from the party.  To be precise she announced that "the management committee of the Jacqui Lambie Network has moved to expel you from the party".  That has been universally taken that Martin has been expelled from the party, although it is capable of being interpreted as just saying that expulsion proceedings have been commenced.  This is no great surprise after Lambie told Martin to give up the seat, and also threatened to expel Martin if he re-employed Rob Messenger (which Martin says he is not doing anyway).  


There have been some suggestions that Martin's apparent expulsion from the party was an attempt to stop him from taking Lambie's seat.  I'm not aware of any evidence of that, though the Mercury has said Lambie sought "urgent advice".  Had Lambie wanted to, she could have been represented in Friday's court hearing and tried to argue that she was in the same (leaky) boat as Skye Kakoschke-Moore.  (The former South Australian NXT Senator is trying to argue that she should be admitted to her own special count as she has renounced her former dual citizenship, and also that Tim Storer should not be included since he is no longer an NXT member).  

The transcript of the case's final hearing very strongly suggests that had Lambie had such an appearance, it would have been judicial flamebait, but the fact is that she didn't try.  As it turned out the Court said that Martin's expulsion was irrelevant to his right to take the seat, because

* it had been presented with no evidence of the expulsion or its validity
* even if it had, the expulsion had occurred after the special count that confirmed Martin's eligibility (subject to him surviving the Section 44 challenge)
* even had that not been the case, it was not clear why Martin should not take the seat anyway (given that he had been a member and otherwise eligible at the time of the election)
* and in any case the time had passed for Lambie to make any such challenge

Lambie could have argued that because the facts giving rise to a challenge had only just arisen, the last point was unfair to her, but I think it would have got very short shrift indeed.  Nettle J, at least, has had a gutful:

"The uncertainty caused by Ms Lambie submitting herself for election on 2 July 2016, when she was incapable of being elected, has gone on for too long.  There must be an end to uncertainty caused by persons putting themselves forward for election when they are incapable of being elected and a return to regularity and order." 

(As straightforward and avoidable as Lambie's problem was, in many other cases the uncertainty stems from the rules themselves, and the facts they are applied to, being uncertain - but that's a whole 'nother article I've still to get around to!)

Term Lengths

The Court made no finding on term lengths, following the Nash reference where Jim Molan was simply declared elected without any declaration of how long it was for.  This seems to handball the decision back to the Senate, but Gageler J in Nash did leave the door open for the matter of term lengths to reappear in the High Court:

"If a person with a sufficient interest to raise such an issue does so by formal process, then that is something that can be addressed, if necessary, in response to that process."

That is a remote prospect in the case of Molan, who is happy to have what remains of a three-year term, but it could yet be that if Martin is allocated a three-year term he challenges the Senate's ability to reallocate terms.

If the Senate decides to stick with the defective order-of-election method for assigning terms, then not only will Martin receive a three year term, but the Liberals in Tasmania will rise from two six year terms to three.  As mentioned in my previous term lengths article, this would be a ludicrous outcome as the Liberals would have won three six-year terms out of four seats won, while Labor would have two out of five.  But it is one that could also have implications for Martin's future.  

Martin has initially tried to fashion himself as a Brian Harradine clone, but if he gets a three-year term he will have at most fifteen months to convince Tasmanians to re-elect him.  Especially with competition from Lambie, this will be very difficult.  However, in this case the Liberal Party would only be defending one incumbent (Colbeck) at the next half-Senate election.  That being the case, a deal in which Martin joined the Liberal Party - which he has not ruled out - in return for a top-two preselection would have obvious benefits for both sides, if mutually agreeable.  This could be all the more reason for the other parties in the Senate to finally put the order of election method in the bin where it belongs.  At least in Tasmania's case.  My view is that if the Senate is going to reallocate terms for Tasmania at all, it should recognise that this example breaks the order-of-election method, and switch to the Section 282 method instead.  This might be challenged, perhaps successfully, but at least the Senate would have tried to do the right thing.

Expulsion Process

What Nettle J said about the lack of evidence for a "valid basis for dismissal" was probably just a matter of being exhaustive, but I did wonder about it - it scarcely matters, but was Martin validly expelled?  The basis for the expulsion was originally given as speaking to the media without authority of the Convenor (Lambie) though this followed numerous other accusations, including a supposed lack of "mateship, respect and integrity", alleged failure to retain staff and supposed disinterest in the Network and lack of communication.

However since the letter from Lambie, party spokesman (and Braddon candidate) Glynn Williams has said Martin was expelled for refusing to step aside for Lambie, since the voters had wanted Lambie and Martin had declined to resign and give Lambie her seat back.

There is not much public evidence regarding what goes on inside the Lambie Network.  All I do have is the founding constitution of the Network.  Parties are only required to provide their Constitution when they apply for registration, and are (unfortunately) not required to update it, so I cannot say for sure whether that document still applies.  If it does, then the power to expel rests with the Management Committee.

The Management Committee in the original Constitution initially consisted of two people (Lambie and Fern Messenger, who one assumes has been replaced), and had to always consist of at least two people.  The Management Committee could expel members without any natural justice requirements (in baffling contrast to discipline matters for which natural justice does apply), but this power was limited to cases where the member had materially breached "its [sic] obligations under this Constitution or the Rules."  The Constitution does contain several clauses that match the accusations made by Lambie against Martin, meaning that if the Committee believes he has breached those sections of the Constitution then he can be expelled - even if the Committee's belief is ill-founded and the Committee takes the decision without asking Martin to show cause.  (It would be interesting to know if there is any common-law constraint on this in the case of a political party.)

However, a meeting of the Management Committee had to be convened at seven days' notice, or else a resolution could be passed unanimously without a meeting.  The latter suggests that validly (at least according to party rules) expelling a member quickly is actually very easy in the JLN.

Nonetheless, it would be interesting to know how and when Fern Messenger ceased to be a member of the Management Committee - assuming she did cease being one - and who the current member(s) beside Lambie are now.  The Network rightly prides itself on its excellent real-time donations transparency so how about transparency on who are its current movers and shakers, besides Lambie herself?

Interestingly, under the Constitution, had Martin taken his seat as a JLN member he would have become a Parliamentary Member and thereby a Voting Member of the JLN.  The number of voting members was initially two.  It would be interesting to know how many there are now.  It is also notable that any candidate who wins a seat at the state election will - if the original Constitution still applies - become a Voting Member.

Party-Hopper Central

The 2016 Australian Senate election slate has now seen multiple instances of Senators appearing in different parties to those they were elected to. 

* Rod Culleton quit One Nation and sat as an independent, prior to having been found to have never been a valid Senator in the first place.  (Thanks to the reader who pointed this out.  So much has happened that Culleton seems to me like a figure from the distant past, but in fact he was still in the Senate last year!)

* Cory Bernardi blatantly ratted on the Liberal Party to form his Australian Conservatives.

* Lucy Gichuhi was elected after the party she stood for, Family First, had merged into Australian Conservatives, and declined to follow the merger.  She later joined the Liberal Party.

* Fraser Anning resigned from Pauline Hanson's One Nation under threat of expulsion.

* Steve Martin was allegedly expelled from JLN before he could take his seat.

* Tim Storer (if elected) was allegedly expelled from NXT before a situation allowing him to take his seat arose.

The previous Senate saw three such cases - Lambie and Glenn Lazarus quit Palmer United, and John Madigan resigned from the DLP.

The rate of party-hopping in both terms is partly down to the instability of personality-cult parties in general, hence the following tweet which may now be known as Schlechta's Law:


But it's also because ineligible candidates wanting "their" seats back places great pressure on those next in line.  In this case, Lambie herself stuffed up.  It would be very generous for Martin to give the seat back, but he'd be turning down a large pay rise as well as what would be an exciting opportunity for a local mayor and long-time campaigner.  It doesn't seem realistic to expect him to do that.  

Why Colbeck's Election Was Delayed

Warning: this sector has a very high Wonk Factor (5/5)

Prior to today's action, another by-way in the process to fill these Senate vacancies happened on Tuesday when the High Court (single judge) declined to declare Richard Colbeck elected immediately.  This actually ended up delaying his election by just three days but the episode raised some interesting issues.  This resulted in what for its readers could be a rather baffling transcript, and it was certainly too much for the Mercury editorial (which saw the delay as a reason to reform Section 44, when it is actually more a reason to fix a bad defect in the Senate preference-distribution system.)

In the special count to replace ex-Senators Parry and Lambie, Richard Colbeck was elected eighth and Martin was elected ninth.  The count can be seen in detail at Grahame Bowland's site.  In this special count, candidates Abetz (Lib), Urquhart (Labor) and Whish-Wilson (Green) are elected with surplus on the first count.  Then Duniam (Lib), Polley (ALP), Bushby (Lib), Brown (ALP) and Colbeck (Lib) are all elected off cascading surpluses.  After Colbeck's surplus is distributed, Martin (JLN) has about 0.88 of a quota, and he eventually gets over the line ninth at Count 301 after many  minor candidates are excluded.

Because Martin and the Lambie Network #3 Rob Waterman were both under challenge from One Nation, it was possible in theory that both of them would be disqualified replacements (a la Hollie Hughes) and then a new special count without both of them would be needed.  This count could look very different to the special count that had been done, because all the Lambie Network ticket votes, and all the below-the-line 1-2-3s for the Lambie Network, would all then be released to other parties.  (In practice, the votes would spray all over the place, and probably One Nation would win the final seat.)

For Colbeck to have been declared elected on Tuesday it would have to have been clearly mathematically certain he would get up in a special count minus both Martin and Waterman.  It would seem completely obvious and straightforward that he would, and would do so the same way - after all, every vote he got in the special count minus Parry and Lambie is a vote he will still get if more candidates are kicked out, so surely he could only do better?

However, there's a fly in the ointment and it is unweighted Inclusive Gregory distortion (though the transcript doesn't call it that).  The same votes (and doubtless more) would flow to Colbeck in the special count, but it is not guaranteed they would all do so at the same value.  Unweighted Inclusive Gregory means that all ballot papers are treated equally in distributing a surplus, no matter what they were previously worth.

To see the problem, let's zero in on the surplus of David Bushby in the special count without Lambie and Parry.  Bushby is over quota by 14,489 votes and has 91,317 ballot papers.  Colbeck then crosses the line after getting 14,324 votes (90,279 papers) which puts him over quota by 4,647.

But imagine instead that Bushby had a much, much greater number of ballot papers but wasn't that much further over quota.  This would happen if some other candidate had crossed quota with a very small surplus and then passed a huge lot of papers on to Bushby at a very low value.   In this imaginary case these low-value ballot papers would actually go up in value (as a substantial number of Jacqui Lambie votes did in the original Tasmanian Senate count) and the rest of the Bushby votes would go down.  

If enough more ballot papers came in to the Bushby surplus at a low enough value and then didn't flow to Colbeck, in theory the papers flowing to Colbeck could be watered down enough to not get him over quota on Bushby's surplus.  (He'd doubtless still win anyway even then, but you'd have to find that out by distributing preferences.)

In fact, you'd need at least 43,117 ballot papers to behave in this way (ducking into the Liberal ticket and ducking out) to do this.  Martin and Waterman didn't have that many between them even in the special count minus Lambie and Parry, so enough of their ballot papers would need to go to other candidates to bring other candidates over quota on primaries in the special count without those two.  However only below the line votes can behave in the way required, and even though the number of below the line votes in Tasmania was huge, there isn't any combination that will get that many extras into Bushby's surplus.  (And there are other reasons why it doesn't happen too.)

So while Colbeck would win anyway, this is all complex rather than obvious.  And it would be simpler by far to just run a hypothetical special count that shows that even if Martin and Waterman were kicked out, Colbeck wins.

But the AEC is apparently reluctant to conduct hypothetical special counts because of concerns about its independence.  This is a common concern; for instance the Tasmanian Local Government Act section 307 (7) explicitly bans the Tasmanian Electoral Commission from disclosing hypothetical recount results.  

The solution the Court was going to explore (until the resolution of the Martin case rendered it irrelevant) was to ask an unnamed person who is clearly Bowland to provide a simulation.  

Perhaps this situation - in which a Senator's election to a Section 44 vacancy is on hold pending the resolution of a case involving another Senator - might never arise again.  But if it did and if the delays in resolving the other case were severe, a number of issues could arise.  Among these is that since the AEC persists in refusing to make the code for its counting systems public, the ability to reproduce an AEC count is much more limited than it otherwise would be.  Currently only one person in Australia outside the AEC has publicly proven they can do it (by writing his own code).  He's also an active political party member, which would doubtless be complained about by someone if that party were to be involved in such a case.  (Edit: As noted by Jack Aranda in comments, there are likely to be others who have the ability but have not been publishing counts.)

In this case, unweighted Inclusive Gregory has had a very minor impact - delaying a Senator's election by a few days.  But it is very capable of having a much greater impact, such as electing the wrong Senator entirely, and it is way past time it was got rid of.

6 comments:

  1. Schlechta's Law: No party with someone's name in it has ever been able to hold a caucus together - except a caucus of 1 when only 1 MP is elected. (Brian Harradine, Derryn Hinch, NXG when X was on his own ??).

    Think Ricky Muir could be added as well for swapping out of Motorists party?

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  2. The smaller personality parties have a tendency to have some of the weekest internal democracy among Australian political parties.

    If NSW is switched to the 282 method, Rhiannon gets a long term. The Senate being able to choose term lenght allocation should be replaced with a referendum entrenched version of section 282.

    I have my doubts that a wrongful election of a Senator because of the use of Unweighted Inclusive Gregory would survive a trip to the Court of Disputed Returns because it may not comply with section 8 of the constitution requiring that each elector vote only once.

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    1. I had some fun Twitter debate with Antony Green about applying s 282 in which he was stirring me by suggesting that if I supported using s 282 now for Tasmania I should support using it for all states. But for Victoria there is no reason to reconsider the allocation since nobody has been given the flick, and in NSW keeping the order-of-election method only conserves the existing (and somewhat less clear-cut) unfairness. Replacing NSW with a new S 282 would demote Deborah O'Neill (ALP) from a 6 year term to a 3 year term and I think there are strong arguments against doing that now. It's also possible for the order-of-election method to cause a demotion, but it is more likely to cause promotions.

      The whole debate highlights the difficulty of using a single method to reallocate all affected states without getting a stupid result somewhere.

      Unfortunately I don't think section 8 requires that a vote cannot be inflated in its total effective value to above one vote. It would be nice if it did though. The High Court refused to read in a principle of proportional representation when Bob Day asked them to, so I don't think they're likely to be too imaginative here.

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    2. Disclaimer: I am not a lawyer!

      The single vote restriction Section 8 was mainly designed to prevent voters getting multiple votes either in multiple states or the same states because of property holding still allowing some wealthier people to vote in multiple seats at colony/state level when the Constitution was drafted. Had section 8 not had such a provision, it may well have caused multiple electorate voting from multiple electorate qualifiction to be required through section 41`s protection of the Legislative Assembly/House of Assembly franchise for the Commonwealth Parliament.

      Given that the Senate representation in each state is specifically allowed to be divided into districts and that non-proportional electoral systems were originally used and were in fact what the Senate was designed for and given the by-election provisions in the original section 15, it is very hard to argue that the Constitution has any implied requirement for proportionality in Senate voting.

      Votes increasing in value, compared to other votes, is however much more likely to contravene a provision against multiple voting as it results in some voters effectively having more than one vote, which the multiple vote ban was designed to prevent.

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  3. Ahhhh, thanks Kevin. I was wondering who the "gentleman in the community" was, to whom the Sol-Gen was referring in the earlier transcript. I shall have to pay more attention to Grahame Bowland's site. But I doubt that he's the only one who has written a routine to do the count - I think I could round up several others with a few emails.

    And you're right - the Senate counting rule should be changed to *weighted* (inclusive) Gregory. Absolutely no reason not to do it, now that they do the count on those newfangled computing machines!

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