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Malcolm Mackerras
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Judges in our High Court are Pharisees

Thursday, May 10, 2018

 

On the morning of Wednesday 9 May I walked down to the High Court expecting to hear yet another bad decision from the judges of that esteemed body. So it turned out to be. Labor Senator Katy Gallagher (ACT) became the 11th senator in this parliamentary term to have her seat confiscated by the Court. This is the Court’s latest bad decision and has driven me finally to write something I have been saying for quite some time during the terms of Robert French (2008-17) and Susan Kiefel (since 2017) as Chief Justice. The judges of Australia’s High Court are a bunch of modern-day Pharisees.

Let me explain. The Pharisees were the religious establishment in Palestine some two thousand years ago. High Court judges are the legal establishment in Australia today. Readers will know of the critique given by Jesus Christ of those elite figures of his day. In the Gospel According to Saint Matthew, Chapter 23, Verse 24, he refers to the Pharisees as “blind guides” who “strain at a gnat, and swallow a camel”. So taken am I with that phrase I decided to look up “The Pillar New Testament Commentary” and here is the opinion. 

“Again these guides are castigated as blind; for all their zeal they cannot perceive the right ways of God. With a humorous illustration Jesus pictures them as straining out the gnat, the point being that this little organism was ‘unclean’ and therefore should not be consumed. But these same people gulped down the camel, the largest of the beasts normally found in Palestine and, in addition, also ceremoniously unclean. They were pernickety in complying with the regulations about the smallest matters but were capable of neglecting much more important matters, things like Jesus had just mentioned. In their eagerness to avoid a tiny defilement the Pharisees are polluted by a huge one.”

When modern Australian commentators say things like “the Constitution commands this” or “the Constitution forbids that” they always neglect to tell us that really we have two constitutions, the people’s Constitution and the High Court’s Constitution. The judges are fanatical in their enforcement of the High Court’s version of that document but they often swallow a camel when they, in effect, repeal words actually to be found in the people’s Constitution. In legal language that practice is known as “reading down” the words in question. 

The eleven confiscations of the seats of popularly-elected senators illustrate the fanatical nature of the High Court’s enforcement of its own Constitution. I challenge anyone to find in the people’s Constitution any statement to the effect that the United Kingdom, Canada, New Zealand, Papua New Guinea, Solomon Islands, Barbados or Jamaica can be classified as foreign powers.

Indeed the United Kingdom is the country whose legislature gave us our Constitution. The above-named countries have in common with Australia the fact of their having the same Sovereign, Queen Elizabeth II. The absurd idea that these are foreign powers is a concoction of the High Court in an infamous decision in June 1999 when Heather Hill, elected for Queensland in October 1998 with a quota in her own right, was not allowed to sit for even one day of her six-year term because she was born in London. She did not realise the judges would deem her to owe allegiance to a foreign power. That she was an Australian citizen did her no good in the eyes of the Court.

Even as the High Court engaged in the fanaticism of its straining out of gnats like Gallagher (who topped the poll in the ACT in July 2016) it swallowed a camel in May 2016 when it upheld the constitutional validity of this outlandish Senate voting system the politicians foisted upon us. It is patently a violation of the commandment of section 7 which asserts that “The Senate shall be composed of Senators for each State, directly chosen by the people of the State, voting as one electorate.”

That commands the system be candidate-based but in reality it is party-based. Senators are not directly chosen by the people, they are appointed by party machines. As a result of the negligence of the High Court in its duty to uphold the people’s Constitution the words “directly chosen by the people” are not operative. They can be made to operate if the politicians so decided - but there is little chance of that. The machines of the big parties run the show. They would be very reluctant to transfer power from party machines to those who actually vote for the party.

Consequently, the negligence of the High Court in this matter means the people are “educated” to understand that the purpose of their Senate vote is not the direct election of senators. Its purpose is to distribute numbers of party machine appointments between parties according to a formula of proportional representation between parties.

(Malcolm Mackerras is Honorary Fellow of Australian Catholic University. malcolm.mackerras@acu.edu.au)

 

The winners and losers of the South Australian election

Wednesday, May 02, 2018

At 11am, Adelaide time, on Monday 23 April, the button was pressed to complete the South Australian Legislative Council election for which polling day had been Saturday 17 March. I can now finish my analysis of the entire election which, for this website, means a statement of winners and losers. 

The only winner is the Liberal Party – but it is a poor win. There was something very peculiar about its win. It is extremely rare for an Opposition party to take government at an election when the swing in votes is against it. Consequently the Liberal Party’s win should be attributed to something in its history, rather than in its present popularity.

Back in the nineteen forties, fifties and sixties there was a huge rural bias in the SA electoral boundaries. That bias kept the Liberal Party’s Sir Thomas Playford as premier for a record 26 years, from November 1938 to March 1965. Labor’s Don Dunstan, however, won government in 1965 and, aided by a brief Liberal government under Steele Hall (1968 to 1970) went on a crusade for “one vote, one value” electoral redistributions. 

That electoral reform was completed by Dunstan who was premier from 1965 to 1968 and again from 1970 to 1979. Two changes of government after Dunstan left office, however, produced a situation whereby, in 1989, the Liberal Party won the popular two-party preferred vote 52-48 without coming close to winning office. 

From 1985 to 1993 the SA Liberal Party had an unusually smart state director, Nick Minchin, later a senator and senior minister in the Howard government. He realised that, although the Liberal Party had lost the 1989 election, its bargaining position was by no means hopeless. During the year 1990, therefore, Minchin worked on a plan which finally bore fruit in 2018! The immediate effect of the plan was that in February 1991 the SA people voted at a referendum for a scheme of fair electoral boundaries. 

However, for reasons which are not worth going into, it did not quite work out that way in the medium term. At the 2002, 2010 and 2014 elections the Liberal Party won a majority of the two-party preferred vote but Labor won the election. In any event the December 2016 redistribution finally did the trick for the Liberal Party. It meant that the Liberal Party’s majority of the two-party preferred vote in 2018 gave the Liberals 25 of the 47 seats in the House of Assembly. The Labor share of the two-party preferred vote rose from 47 per cent to 48.1 per cent but Labor went out of office. 

In primary votes the performance of the two big parties was especially dismal. The Liberal Party’s share of the Assembly first preference vote fell from 44.8 per cent in 2014 to 38 per cent this time, a drop of 6.8 per cent. Labor’s fell from 35.8 to 32.8, a drop of only three percentage points. The essential reason for these falls was that Nick Xenophon’s SA Best party was able to garner 14 per cent of the vote. 

There are three losers at this election. Labor is the first, as explained above. However, this was a very respectable loss. It was brought about almost entirely by the 2016 redistribution but also because the Liberal Party had (at last) learnt that in a system of single member electoral districts successful targeting of marginal seats is nearly as important for a party as winning a good share of the overall vote.

On election night the obvious loser was Xenophon. His party was able to get 14 per cent of the vote but that is of no use unless it translates into seats. In the proportional representation system for the Legislative Council it gave SA Best the predictable two seats out of eleven at an election for half the Council. Xenophon himself could have been elected to the Assembly but he blew it. He contested the wrong seat, leaving an inconspicuous candidate to contest the only seat Xenophon could have won, Heysen in the Adelaide Hills. 

The other big loser was not advertised greatly on election night, Cory Bernardi and his Australian Conservatives. When he defected from the Liberals he brought with him two Family First members of the Legislative Council, Dennis Hood (elected in 2014) and Robert Brokenshire, elected for Family First in 2010 and standing again as a Conservative in 2018. Brokenshire was defeated this time around and Hood joined the Liberal Party soon after polling day. 

The disaster for Xenophon was widely noted but actually it was not nearly as great as that for Bernardi. Xenophon’s vote was good enough that he could well be elected again to the Senate in 2019. Bernardi is finished. He sits in a Senate seat given to him by the Liberal Party. When he next contests that seat as a Conservative (in 2022) he is sure to be defeated. 

Finally, The Greens did not perform well but at least they did not perform badly. They were able to secure the re-election of Tammy Franks to the Legislative Council. Consequently in the coming term there will be nine Liberals in the upper house, eight Labor, two Greens, two SA Best and one independent who was elected in 2014 as a Xenophon supporter but broke with Xenophon during the last term.

(Malcolm Mackerras is Honorary Fellow of Australian Catholic University. malcolm.mackerras@acu.edu.au)

 

The race for Australia's PM is becoming clearer

Thursday, April 19, 2018

It had been my intention today to write another article as a compare/contrast exercise between the Liberal Party’s recent victories in Tasmania and South Australia. However, the count has been very slow for the South Australian Legislative Council election. Given my desire not to write until an election is fully wrapped up, I am deferring that article. Suffice it to say, however, that both of our least-populous states now have majority Liberal governments.

In South Australia the Liberal Party has 25 of the 47 seats in the House of Assembly. Its share of the two-party preferred vote is 51.9 per cent compared with an even 53 per cent in 2014. In other words there has been a swing to Labor of 1.1 per cent. That the Liberal Party won in March 2018 when it lost in March 2010 and March 2014 simply tells us that the boundaries were unfair in 2010 and 2014. This time the boundaries are eminently fair which gives the Liberals a victory long overdue.

If I have been surprised at the slowness of the SA Legislative Council count, I have been even more surprised at the speed with which federal redistribution committees have produced their proposed new maps for those jurisdictions whose seat entitlement is changing. Due to the fact of Victoria and the ACT growing in population more rapidly than Australia as a whole, Victoria will have 38 seats in 2019 compared with 37 at present. The ACT will have three where it now has two. By contrast, South Australia will have 10 where it now has 11. Consequently, 151 members will be elected to the House of Representatives in 2019 where at present there are 150.

What interest’s people is the politics of the numbers. That interests me too since I draw up a new diagram known as “the Mackerras Pendulum”. These pendulums (of which I have drawn about a hundred over the years) are always shown on the basis of the two-party preferred vote in each electoral division. Consequently, my current one (drawn following the July 2016 federal election) has the number of Coalition supporting members as 79 and the number of Labor supporting members as 71. The Coalition side has 60 Liberals and 16 Nationals as a majority. However, it also has three independent members on the Coalition side, in the seats of Indi (Victoria), Kennedy (Queensland) and Mayo (SA) since there was a Coalition majority of the two-party preferred vote in those seats.

The redistributions for South Australia and the ACT have turned out exactly as I expected. Labor has lost a seat by the abolition of Port Adelaide, but gained one by the creation of a third Labor seat in the ACT. Victoria, by contrast, has been highly controversial. The effect is that the Coalition has lost its absolute majority. On the Coalition side of my new pendulum there are 77 seats compared with 74 on the Labor side. The majority, in other words, has been cut from eight to three.

The reason is that the new Victorian seat is in the western suburbs of Melbourne and will be safely Labor. In addition, however, the committee has changed the Liberal Party’s share of the two-party preferred vote in Dunkley from 51.4 per cent down to 48.3 per cent while in Corangamite they have changed it from 53.1 per cent down to 49.9 per cent. In addition, they have made the totally stupid proposal to change the name of Corangamite to Cox. 

Consequently the new median seat on my pendulum will be Gilmore on the NSW south coast where Labor needs a swing of 0.8 per cent to win. The current pendulum has Robertson on the NSW central coast as the median seat where Labor needs a swing of 1.2 per cent to win. These may sound like trivial differences but the point is that they add further doubts as to whether the Turnbull government can win the next election. 

The election of Donald Trump to the US presidency in November 2016 left egg on the face of virtually every pundit. It has made me cautious about Australia also. Consequently, I shall predict our election date and make a probability statement about the result. My prediction is that the date will be Saturday 18 May 2019. Consequently we shall know the name of the prime minister by July next year. My assessment is that there are three chances Bill Shorten will be that prime minister for every one chance it will be Malcolm Turnbull.

(Malcolm Mackerras is Honorary Fellow of Australian Catholic University. malcolm.mackerras@acu.edu.au)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

How Australia’s smallest states gave the Libs two clear-cut victories

Friday, March 23, 2018

Political historians of the future will, no doubt, record that in the month of March 2018, Australia’s two least populous states gave the Liberal Party two apparently narrow but clear-cut victories. No doubt they will also record that in March 2006, March 2010 and March 2014, these two states had gone to the polls on the same day. But in 2018 Tasmanians voted a fortnight earlier than South Australians, as a consequence of the fact that Tasmania’s four-year term is not fixed. South Australia’s four-year term, by contrast, has seen fixed election dates since 2006.

I hope, but do not expect, these historians will notice that Australia’s longest-standing elections analyst (yours truly) predicted the number of Liberal Party members of the House of Assembly with striking accuracy in both cases. For that reason, both election results should be described (historically speaking) as “entirely predictable”.

These two least-populous states combine together to account for 9.4 per cent of Australia's total population. The Liberal Party's victories, however, are more notable for their differences than their similarities. In Tasmania on March 3 the Liberals won a majority of seats with a majority of votes. In South Australia on March 17, by contrast, they won a majority of seats with a miserable 38 per cent of the first preference vote.

Liberal Party historians will note that both Will Hodgman (Tasmania) and Steven Marshall (SA) promised to govern alone or not at all. Both men judged correctly, notwithstanding that some "nervous nellies" in their parties disputed their judgment.

My practice has always been to wait until all details are known before further comment. For that reason, today’s article is about Tasmania, which has a uniquely excellent system of proportional representation by which its House of Assembly is elected. The result in the 25 seats (every one of which I predicted correctly) is 13 Liberal, 10 Labor and two for The Greens. For my detailed predictions see my article “Island politics: Spotlight on Tasmania’s election” posted on Wednesday February 7. 

The Liberal Party’s Tasmanian victory would have been seen as a landslide had the voting system been the same as in South Australia. For that reason I say Marshall had a poor victory whereas Hodgman’s victory was magnificent.

The Tasmanian Liberal Party won 52% of the seats for 50.3% of the votes, Labor won 40% of the seats for 32.6% votes while The Greens won eight % of seats for 10.3% of votes. The remaining 6.8 % of votes were effective only in their preferences.

Hare-Clark has its critics who describe it as “semi-proportional”, as though that were a defect! They would say it is wrong that Labor be over-represented by 7.4% whereas the Liberal Party is over-represented by only 1.7%. My answer is to say that the normal pattern of Hare-Clark is that the biggest single party is significantly over-represented. However, Labor was exceptionally lucky this time.

A more typical case of the operation of Hare-Clark can be seen from Hodgman’s 2014 victory. Then the Liberal Party won 51.2% of the votes but 60 % of the seats, 15 out of 25. Labor and The Greens in 2014 were “correctly” represented while 7.7% votes for “Other” were effective only in their preferences.

In reality, the parties of the left came nowhere near depriving the Liberal Party of its majority. They were lucky in Franklin where the result was two each Liberal and Labor and one for The Greens. That is a left majority in seats for a very slender majority in votes. Labor was lucky also in Braddon where the four-one Liberal win in 2014 became three-two this time. However, the solid reality of three Liberal, two Labor in all of Bass, Braddon and Lyons means Hodgman is actually very safe.

Yet Bass, Braddon and Lyons are all Labor seats federally. How can Labor and The Greens have performed quite so badly in all three? Therein lies the reason I describe Hodgman’s victory as “magnificent”.

When all the votes are counted (likely to take a month) I shall write a considered analysis of the SA election. The main thing to be said today is that Marshall did not perform significantly better than Turnbull but Hodgman did, as I show above.

Finally, I should make another comment on Hare-Clark. When the Tasmanian results were finalised last Friday the main thing journalists noticed was that a majority of members of the new House of Assembly are women. That fact was treated as though it made Tasmania unique. The reality is that BOTH lower houses which are majority-female were elected under Hare-Clark. The difference is that in the ACT Legislative Assembly the Labor and Liberal parties are BOTH majority-female while The Greens pair are one man and one woman. In Tasmania, by contrast, the Liberal Party is majority-male. Labor’s ten members comprise seven women and three men. For The Greens both Cassy O’Connor (Denison) and Rosalie Woodruff (Franklin) are women.

(Malcolm Mackerras is Honorary Fellow of Australian Catholic University. malcolm.mackerras@acu.edu.au)

 

 

SA Election: Will Xenophon be king-maker?

Friday, March 09, 2018

Having made near-perfectly-correct predictions for Tasmania’s recent election “Island politics: Spotlight on Tasmania’s election”  I am emboldened now to chance my arm on South Australia whose general election will occur on Saint Patrick’s Day, Saturday March 17. I begin by noting that I have already predicted this election result – more than a year ago. In my article  “Leadership Shakeup for WA and SA?” (published on Thursday February 9, 2017) I correctly predicted the Labor win in Western Australia and went on to write: “By way of contrast, the opposite will happen in South Australia in March 2018. The Labor government there will be defeated and replaced by a government composed of one party only, the Liberal Party. Labor’s Jay Weatherill will lose the office of Premier to Steven Marshall”. 

That, of course, was written long before Nick Xenophon decided to resign from the Senate in order to contest the state seat of Hartley in the SA House of Assembly. So, do I stick to that prediction? Or do I change it, asking to be excused my change of mind by using Xenophon’s decision as my excuse? As explained in detail below I have decided to stick to the prediction that Marshall will be Premier in a majority Liberal government. 

In the outgoing lower house, Labor held 24 seats: Ashford, Cheltenham, Colton, Croydon, Elder, Enfield, Fisher, Florey, Giles, Kaurna, Lee, Light, Little Para, Mawson, Napier, Newland, Playford, Port Adelaide, Ramsay, Reynell, Taylor, Torrens, West Torrens and Wright. The Liberal Party held 21 seats: Adelaide, Bragg, Bright, Chaffey, Davenport, Dunstan, Finniss, Flinders, Goyder, Hammond, Hartley, Heysen, Kavel, MacKillop, Mitchell, Morialta, Morphett, Mount Gambier, Schubert, Stuart and Unley. 

That left two others, both seats which would normally be won by the Liberal Party. They were Frome, based on Port Pirie, and Waite, in Adelaide’s salubrious southern suburbs. Port Pirie is a Labor town but the surrounding countryside (which is almost entirely to its south) votes solidly Liberal. It would be a Liberal seat except that it has a popular Independent member who won the seat as an Independent but supported the Labor government. Waite is blue-ribbon Liberal but its member, Martin Hamilton-Smith, decided to be a minister in the Labor government. My predictions begin by asserting that both Frome and Waite will be won by the Liberal Party. 

The big problem lies with SA Best, Xenophon’s party. However, I chance my arm on saying there will be two such members in the House of Assembly. They will be Xenophon himself in Hartley, taken from the Liberal Party, and one other member in Giles, a gain from Labor. Giles takes in the steel-making city of Whyalla plus a third of South Australia’s area to Whyalla’s west. It is Labor’s only regional seat. 

At the general election held on Saturday March 15, 2014, the two-party preferred vote was distributed 53-47 in favour of the Liberal Party, which party lost the election! Due to the obvious unfairness of such a result there has been a redistribution of seats which creates a notional result (on the new boundaries) of 27 Liberals to 20 seats for Labor. 

Having studied all the seats and much opinion poll information I now predict these 24 seat will be won by the Liberal Party: Adelaide, Bragg, Chaffey, Colton, Davenport, Dunstan, Elder, Finniss, Flinders, Frome, Gibson, Hammond, Heysen, Kavel, MacKillop, Mawson, Morialta, Morphett, Mount Gambier, Narungga, Schubert, Stuart, Unley and Waite.

The 21 seats I predict will be won by Labor are Badcoe, Black, Cheltenham, Croydon, Elizabeth, Enfield, Florey, Hurtle Vale, Kaurna, King, Lee, Light, Newland, Playford, Port Adelaide, Ramsay, Reynell, Taylor, Torrens, West Torrens and Wright. 

If all the above is correct, then Xenophon will be very disappointed – but not devastated. I say that because there are plenty of pundits who think he will not win Hartley. For that seat to be won by the Liberal sitting member or the Labor former member would be devastating for Xenophon. So I do not think it will happen. On the other hand I am not predicting he will be king-maker. Since that is the aim of his quixotic decision to leave the Senate my predicted result, if proven as correct as my Western Australian, Queensland and Tasmanian predicted results, would leave Xenophon very disappointed indeed. 

Two by-elections will be held on the SA general election day, March 17. One is very easy to predict. The Liberal Party will retain blue-ribbon Liberal Cottesloe (WA), the seat resigned by the former premier, Colin Barnett, who has retired from politics. 

By contrast, Batman (Victoria) is interesting. Once again my prediction is on the record. In my article here (show “Who’s to blame for the citizenship scandal?” in blue) I wrote that “Labor will lose Batman to The Greens at the next election whenever that election is held”. Do I stick to that? I give an affirmative answer. The Greens candidate, Alex Bhathal, will be elected for Batman.

(Malcolm Mackerras is Honorary Fellow of Australian Catholic University. malcolm.mackerras@acu.edu.au)

 

Island politics: Spotlight on Tasmania's election

Wednesday, February 07, 2018

Last Sunday, 28 January, Tasmanian Premier Will Hodgman, announced that there would be a general election in his state on Saturday 3 March, a fortnight before the fixed date of the South Australian election, in respect of which I shall make predictions in due course. Meanwhile I feel I have a duty to readers to make my Tasmanian predictions today.

At the general election held on Saturday 15 March 2014 (which date chanced to be the same as in South Australia) the Liberal Party won 15 seats, Labor seven and The Greens three. The Liberal Party’s 15 was made up of four in Braddon, three each in Bass, Franklin and Lyons and two in Hobart-based Denison. Labor’s seven was made up of two in each of Denison and Lyons and one each in Bass, Braddon and Franklin. The Greens won a seat in each of Bass, Denison and Franklin. There are five members for each of five federal divisions which are used for state purposes. Election is by the Hare-Clark system of proportional representation.

I make absolutely firm predictions for Bass, Braddon and Denison. In Bass and Braddon, it will be three Liberal and two Labor while Denison will be exactly as last time, two for each of Labor and Liberal and one for The Greens. Thus far, therefore, Labor has nine seats, a gain from Liberal in Braddon and from The Greens in Bass. So The Greens are down to two members and that is the number I confidently predict they will have.

I am also reasonably firm about Franklin where I predict Labor will gain a seat, making it two each for Labor and Liberal and one for The Greens. I am least confident about Lyons but my prediction is that it will stay at three Liberal and two Labor. All of that would mean a total House of Assembly of 13 for the Liberal Party, 10 for Labor and two for The Greens.

Tasmanian elections are quite unlike those of any Mainland state. First, there is the Hare-Clark electoral system which means they can, in some ways, be compared and contrasted with elections in the ACT which also has Hare-Clark. Yet Tasmania is not really comparable with the ACT because Tasmania has a governor and the ACT does not. Whether the present governor, Kate Warner, will play a role post-election is hotly debated among pundits. I do not think so because I think the Liberal Party will win the election.

It is predicted by some pundits that Labor’s new leader, Rebecca White, who will be 35 years old come polling day, is going to repeat the performance of New Zealand’s new Prime Minister, Jacinda Ardern, who is 37. The argument is that both parliaments are elected by systems of proportional representation. What such an argument overlooks is that the two PR systems are such very different types of PR. In short, Tasmania’s system is good and New Zealand’s is bad. It is not, however, quite as bad as that which gives the Australian people their 76 senators.

In New Zealand, there are 120 members of the House of Representatives of which 71 are elected from single member electoral districts and 49 are party machine appointees (called “party list” members) who “top up” the directly elected members to make it much “purer” PR (according to its supporters) than Hare-Clark. But in each of the Australian Hare-Clark jurisdictions all 25 members are directly chosen by the people which makes Hare-Clark vastly superior to the PR systems of New Zealand and the Australian Senate. For my review of the recent election across the Tasman readers are referred to my article “It’s not the voting that’s democracy, it’s the counting” published on this website on Wednesday 8 November last year.

The second feature which makes Tasmanian elections so very different from any Mainland state is Tasmania’s position as a “mendicant” state. That is due to the fact of it being an island, not because it has been badly governed. Yet it leads to commentary of the kind given by Graham Richardson in “The Australian” recently. In his piece titled “Rest of country to pay for promises” for Monday 29 January he began: “It has often been said that Federation was a plot against New South Wales. It was the biggest fish in the pond and the other fish banded together to limit the power of the biggest state.”

Then he wrote this: ”The problem is that a new Tasmanian government will do what every Tasmanian government has done. It will pass a grab-bag of policies it knows it cannot pay for. The other states, with the exception of the other basket case, South Australia, will pay to keep Tasmanians in the manner to which they have become accustomed.”

There is, as they say, “something in” all of that. However, I do not think I have the space to mount a full debate with Graham Richardson about all his assertions – so I leave it at that. I agree with him about some of his assertions but disagree with others. I may return to that in a later article. 

(Malcolm Mackerras is Honorary Fellow of Australian Catholic University. malcolm.mackerras@acu.edu.au).

 

Who's to blame for the citizenship scandal?

Thursday, January 25, 2018

There was a political crisis last year which ran from Friday 14 July to Saturday 16 December. The first date is that on which Scott Ludlam of The Greens resigned his Senate seat. The second date is when John Alexander stormed home to a magnificent by-election win in his seat of Bennelong. Readers will immediately recognise the political crisis to which I refer. It is known in much of the media as “the citizenship scandal”, a misnomer if ever there was one.

In order to understand the way forward, we need to understand who is to blame for starting the crisis and to whom the credit should be given for ending it. I gave my view in an article titled “High Court is to blame for political crisis” published November last year and “Why John Alexander will win Bennelong” published on December 12. Perhaps I should begin by explaining why I have it in for the High Court. I do that because many people think I am being unfair to the Court. They say the blame lies with the politicians whose seats have been confiscated by the Court. Others say the blame lies with Perth barrister John Cameron. It seems as though he had a grudge against Ludlam so he took it out on him by making very public Ludlam’s lack of attention to detail when he filled out his nomination forms. Barnaby Joyce and Alexander were caught up in the mess, but the rules allowed them to win their seats again. Not so Ludlam!

My objection to two recent High Court judgments (this being the second) is that the Court pays far too much attention to the precedents set by earlier High Court judgments and far too little attention to the intentions of the men who wrote the words being interpreted. Thus the immediate effect of the judgment Sue versus Hill (handed down on 23 June 1999) was most unfair to Heather Hill who was not allowed to serve the six-year term to which she had been elected. However it also reflected a view of history by the Court which was very contentious at the time and ever since. Thus the Court determined in 1999 that the United Kingdom (the country whose parliament actually enacted Australia’s Constitution) became a foreign power when the High Court proclaimed it to be a foreign power.

ELECTION RESULTS

There were two by-elections late last year, New England and Bennelong. The two were held a fortnight apart but may be considered to have been a mini general election. The combined by-election votes were 110,837 (64.5 per cent) for the Coalition and 61,136 (35.5 per cent) for Labor. At the July 2016 general election the numbers were 118,177 for the Coalition (63.1 per cent) and 69,058 for Labor (36.9 per cent). So there was a swing towards the Coalition of 1.4 per cent, a disastrous result for Labor.

So why would Labor, well ahead in the opinion polls for more than a year, do so badly when actual votes were cast and counted? My view is that Labor identified itself with what was, actually, a very unpopular decision by the High Court, in addition to being a bad one! Labor told the world that it had a strategy to deprive Malcolm Turnbull of the victory he had earned at the July 2016 general election. It was to be done by causing a series of by-elections, all of which were totally and hopelessly un-necessary.

So what is the lesson? My strong advice to the federal Coalition is not to pursue by-elections in the Labor-held seats they presently contemplate asking the High Court to cause, Braddon (Tasmania), Fremantle (Western Australia) and Longman (Queensland). If by-elections were to occur it would do the Liberal Party no good whatsoever for the same reason that by-elections in New England and Bennelong did Labor no good whatsoever.

A far better course for the Coalition would be simply to allow Labor to wallow in its own drink over the Batman case. Labor will lose Batman to The Greens at the next election whenever that election is held. The sensible thing for the Coalition to do would be just to watch Labor suffer from its own folly when David Feeney is forced out of the seat prematurely. There is a 90 per cent chance of that happening and Coalition supporters will enjoy the spectacle – even though it will be The Greens who actually take the seat.

There is a reason why I say the crisis ended on the night of 16 December 2017. On that night it became clear that, as a consequence of the sound judgment of Bennelong electors, there is no way the Turnbull government will lose its majority in the House of Representatives prior to the 2019 general election.

But what about the Senate? Here my answer is simple. The Senate is unrepresentative swill in any event, it does not determine who holds government and government majorities are rare anyway. What can be said is that the High Court has taken a scythe through the ranks of senators and it really does not matter much that such has been the case.

So far there have been ten (repeat 10) Senate seat confiscations brought about by the High Court. In that list there is included the cases (for example Ludlam’s) where the senator resigned in expectation of the Court’s confiscation of the seat. In almost every case the quality of the replacement senator is lower than that of the departed senator. However, there are two exceptions and I give details of them.

The first exception is Retired Major General Jim Molan AO DSC AM who is now a Liberal senator for New South Wales. He is the highest ranked former military commander to enter the federal parliament in the last fifty years. He has been elected from the unwinnable 7th place on the Coalition ticket replacing Fiona Nash (from The Nationals) who polled 5,689 first preference votes from 3rd place, but also Hollie Hughes (Liberal, 6th) who polled 1,126 first preference votes. Molan polled 10,182!

The second has not yet resumed his rightful place as a senator but I am assured he will. He is Richard Colbeck who was the only Tasmanian minister in the Turnbull government until his defeat which was engineered by the conservative Tasmanian Liberal Party machine. Under any decent voting system he would have been re-elected in July 2016. Anyway, at the general election Colbeck polled 13,474 votes compared with 1,994 polled by Stephen Parry, the man he is expected to replace. When all the Senate changes are finally revealed I shall contribute an article with a fuller Senate-seat analysis than I can give here.

(Malcolm Mackerras is Honorary Fellow of Australian Catholic University. malcolm.mackerras@acu.edu.au)

 

Why Queensland's election played out as it did

Thursday, January 11, 2018

Back on Tuesday 12 December 2017, an article by me titled “Why John Alexander will win Bennelong” was posted here. In my second article for the New Year, I give my analysis of the New England (2 December) and Bennelong (16 December) by-elections. 

My previous article explained why I was so totally confident in my predictions, notwithstanding that the then current polls for Bennelong were 50:50 between Alexander and Labor’s Kristina Keneally and virtually every other commentator was asserting that Bennelong would go down to the wire.

I also concluded with a promise to do a proper analysis of the Queensland election, held on 25 November. I wrote: “I shall explain why I think this is a pretty good result for the Liberal National Party, contrary to the conventional wisdom of it being otherwise.” 

In this, my first article for the New Year, I do that but precede with some advice for the LNP. I say this to them: the merger of the Liberal and National parties in Queensland was a good idea and it has been a success. Do not go back to the old days by de-merging. I say that, notwithstanding the fact that the LNP has actually lost three of the four state elections since the merger took place.

Consider this piece of history. Peter Beattie in 1998 and Annastacia Palaszczuk in 2015 took Labor from Opposition into minority government, both relying on the independent Peter Wellington who represented a conservative seat on the Sunshine Coast hinterland. At his next election, Peter Beattie took Labor to a landslide win with (on my estimate) 60% of the two-party preferred vote (a pro-Labor swing of 9%) and winning 66 of the then 89 seats compared with 44 at his 1998 win.

By contrast, Palaszczuk has taken Labor from minority government to a narrow majority with no swing at all, largely due to the change in the electoral rules. This result is no triumph for her, just “a win is a win is a win.” Under the rules of Electoral Commission Queensland, there is no official two-party preferred vote, so the analyst must estimate it. 

My estimate for 2015 was 50.8 per cent for Labor and 49.2 per cent for the LNP. For 2017, my numbers are 50.4 and 49.6, respectively. So, any overall swing there might have been was against Labor, contrary to the impressions created by commentary on election night last November.

In 2001, there was no change in the voting rules. There was a redistribution of seats but, on the calculations I did at the time, it made no difference whatsoever to the scales between the two sides of politics. By contrast, this time there was a change in the voting system as well as a redistribution with four more seats in the populous south-east corner of Queensland. 

Late in April 2016, the Legislative Assembly approved a bill to increase its own size from 89 to 93 members and to abandon optional preferential voting while restoring the full preferential vote, the system which has applied for House of Representatives elections since December 1918. To do such a thing was not inherently controversial but it was opposed by the LNP purely because it would benefit Labor. 

At the time, there were people (of whom I was one) who realised that Malcolm Turnbull’s insane “Senate reform” and double dissolution would resurrect the political career of Pauline Hanson, but Turnbull was clearly not among those who understood the madness of what he was doing.

In May 2017, the new boundaries were published, at which point I had no difficulty saying that the notional number of Labor seats on the new boundaries was 48 compared with the actual 44 seats Labor had won on the old maps in 2015. From that point on, there was never any doubt in my mind that Labor would win at least 48 seats, bearing in mind the history of what happens in a case like this.

The sensible way to see this election is to say there are/were two Queenslands, the populous south-east with 61 seats (57 before) and the rest of Queensland with 32, the same number as at the 2009, 2012 and 2015 elections. The term “rest of Queensland” refers to the 94 per cent of its area beginning at Gympie to the north of Brisbane, Nanango to the north-west and the Lockyer valley to the west. 

Due to the change of rules and the map, there is no point in talking about individual seat gains or losses in the south-east. Suffice it to say that the average swing to Labor-Greens in those 61 seats was 0.3 per cent and 45 seats moved in that direction. There were 16 seats recording swings to the LNP or to Pauline Hanson’s One Nation Party where it came second to Labor rather than the LNP.

In terms of seats, the south-east result this time was 36 Labor, 23 LNP and one each for The Greens and the independent in the seat of Noosa. Last time it was 30 for Labor, 26 for the LNP and the independent Peter Wellington making it up to 57. I think readers will agree that such was a pretty excellent set of seat numbers for the left, given that there was only a miserable swing of 0.3 per cent in their direction.

For the rest of Queensland, there is some point in talking about actual seats since there remains in place (more or less) the same boundaries as before. Labor lost two seats, Bundaberg to the LNP and Mirani to the ONP, reducing it from 14 to 12. The LNP remained at 16, gaining Bundaberg but losing Hinchinbrook to Katter’s Australian Party. In terms of seats KAP was the big winner. It held its two former seats but also gained Hinchinbrook from the LNP. Overall the swing against Labor in that part of Queensland was 2.9 per cent.

So why did Labor win? Essentially it was for the reasons advanced above but also because there was a tight exchange of preferences on the left between Labor and Greens which was not matched on the right between LNP, ONP and KAP. 

In short, the biggest winner from the re-creation of ONP was the ALP. In addition to that, Labor was able to hold seats in “the rest of Queensland” by dint of the local campaigns of its various sitting members. In particular, Labor was able to retain all three seats in Townsville as well as its North Queensland seats of Cairns and Barron River. Labor’s win in Maryborough was spectacularly good for its sitting member there, Bruce Saunders.

So why do I say this was “a pretty good result” for the LNP. Essentially it was because the LNP was able to “see off” the ONP. This latter party was able to get a heap of useless votes. 

For Queensland as a whole, the ONP vote was 371,193 or 13.7 per cent. That gave them just one seat, Mirani, taken from Labor. The LNP feared the loss of four seats to the ONP but held them all without trouble. Consequently, next time around Labor will not be able to raise any scare about a possible coalition between LNP and ONP. It will also not be able to attack Campbell Newman. He will be forgotten come 31 October 2020, the date fixed for the next election.

(Malcolm Mackerras is a visiting fellow at the Australian Catholic University’s Canberra Campus. malcolm.mackerras@acu.edu.au)

 

Why John Alexander will win Bennelong

Tuesday, December 12, 2017

My last article here was published on Thursday, November 23, and titled “Is our High Court interested in fairness or justice?” to which question I gave a resoundingly negative answer. I concluded by promising that my next article would be on Bennelong in which I might make a prediction. When I appeared on SWITZER on Monday, December 4, I gave my prediction to Peter – John Alexander will win Bennelong because his electors will come to the same view as those of New England. Both Barnaby Joyce and Alexander are clear-cut cases of unfair dismissal. Electors, therefore, will hire again those two men who were legitimately, convincingly and democratically elected in July last year.

As I have pointed out in several articles, these cases illustrate the beauty of our democratic system for electing the House of Representatives. To the unrepresentative swill of the Senate (with its truly appalling voting system) is left the power of the judges to confiscate seats from those who were legitimately and democratically elected to those seats. In this term so far there have been ten Senate seat confiscations. You read that correctly – TEN confiscations, and counting. If I wanted to be pedantic, however, I could have noted “or resignations in expectation of confiscation”.

The inherent nature of Bennelong is that it is a highly marginal seat. I knew that when I saw the present map which was published in 2006. I had no difficulty in repeatedly predicting that John Howard in 2007 would be defeated in that highly marginal seat. All the surrounding seats (originally Berowra, Bradfield, North Sydney, Lowe, Reid and Parramatta) have seen their boundaries changed by subsequent redistributions but Bennelong has remained unchanged.

When created in 1949 Bennelong was a blue ribbon Liberal seat. The original proposal was that it be called Lane Cove but the map-makers realised that the suburb of Lane Cove would be removed at a subsequent redistribution – so the permanent name of Bennelong was given. The seat was so blue ribbon in its character that there was a notional majority for the Liberal Party on the 1946 voting when Ben Chifley stormed home to a great Labor victory in Australia as a whole.

During its blue ribbon phase there was just one close result. The seat was saved for its incumbent, Sir John Cramer, in 1961 by the votes of the suburbs of Hunters Hill, Lane Cove, Longueville, Northwood and Woolwich. All those polling places now vote in blue ribbon North Sydney, leaving Bennelong as the ultimate example of a marginal seat.

The great winner of 2007 was Labor’s Maxine McKew who turned out to be an inadequate member. Alexander, therefore, took it in 2010 on a swing of 4.5 per cent. He added to his 2010 majority a swing of 4.6 per cent in 2013, followed by a further swing in his favour of 1.9 per cent in 2016. Those three swings add together to create the impression of Bennelong returning to its status as blue ribbon Liberal but I can assure readers that it remains very much a marginal seat. In any circumstances but these ones Labor could easily win Bennelong. I would not object to that in any circumstances but these. Nor would I object if Kristina Keneally were to be a future member of the House of Representatives. However, not in these circumstances, thank you very much. Personally she is a delightful woman to meet.

The Greens will take from Labor the Melbourne inner-city seat of Batman at the next election, whenever it is held. That being the case it is probably best for Labor to get the pain over and done with by a Court-ordered by-election which would create two very safe adjoining seats for The Greens, Batman and Melbourne. Labor and, especially, Bill Shorten have been so cynical in their behaviour over the High Court’s recent rulings there will be no sympathy for them. Instead there will be a feeling that, given the high overall vote for the party of the far left, there really should be more than one Green in a House of Representatives of 150.

If there is any other Court-ordered by-election the result will be the same as in New England and Bennelong. The voters will say to themselves “this by-election is so totally and hopelessly un-necessary as to constitute a disgrace”. In all cases the member legitimately and directly chosen by the people in July 2016 will enjoy an easy win.

In three previous articles on this website (posted on Friday, September 8, Wednesday, November 1 and Thursday, November 23) I predicted the result of the Queensland state election would be 50 for Labor, 36 for the Liberal National Party, four for Pauline Hanson’s One Nation Party, two for Katter’s Australian Party (Hill and Traeger) and one Green member in the seat of South Brisbane. The result is 48 for Labor, 39 for the LNP, three for KAP (Hill and Traeger retained and Hinchinbrook gained from the LNP), one for PHON (Mirani, taken from Labor) and one Green, not in South Brisbane but in Maiwar.

Over the holiday break I shall do a proper analysis and that will be my first article in the New Year. In it I shall explain why I think this is a pretty good result for the LNP, contrary to the current conventional wisdom of it being otherwise. In the meantime I wish all readers and viewers of SWITZER a happy Christmas and a bright and prosperous New Year.

(Malcolm Mackerras is Honorary Fellow of Australian Catholic University. malcolm.mackerras@acu.edu.au)

 

Is our High Court interested in fairness or justice?

Thursday, November 23, 2017

By Malcolm Mackerras

Back on Wednesday 1 November I had an article posted on this website titled “Citizenship debacle dragged on too long.” It began this way, dealing with Queensland:
 
“Back on Friday September 8. . . I made a forecast which was that Labor would win an election I expected to be held on Saturday October 28. My prediction of the date was slightly out but my forecast of the result stands. It is 50 seats for Labor, 36 for the Liberal National Party, four for Pauline Hanson’s One Nation Party, two for Katter’s Australian Party (Hill and Traeger) and one for The Greens (South Brisbane). I shall contribute a detailed article on Queensland later this month.”
 
The first purpose of this article is to keep that promise. I begin by giving a list of the 50 seats I predict Labor will win on Saturday. They are: Algester, Bancroft, Barron River, Bulimba, Bundamba, Cairns, Capalaba, Chatsworth, Cook, Cooper, Everton, Ferny Grove, Gaven, Gladstone, Greenslopes, Inala, Ipswich, Ipswich West, Jordan, Keppel, Kurwongbah, Logan, Lytton, Macalister, McConnel, Mackay, Mansfield, Maryborough, Miller, Mirani, Morayfield, Mount Ommaney, Mulgrave, Mundingburra, Murrumba, Nudgee, Pine Rivers, Pumicestone, Redcliffe, Rockhampton, Sandgate, Springwood, Stafford, Stretton, Toohey, Toowoomba North, Townsville, Waterford, Whitsunday and Woodridge.
 
I now give the 36 seats I predict the LNP to win and the four I predict for One Nation. For the LNP: Aspley, Bonney, Broadwater, Buderim, Bundaberg, Burdekin, Burleigh, Burnett, Caloundra, Clayfield, Condamine, Coomera, Currumbin, Glass House, Gympie, Hervey Bay, Hinchinbrook, Kawana, Maiwar, Maroochydore, Mermaid Beach, Moggill, Mudgeeraba, Nanango, Nicklin, Ninderry, Noosa, Oodgeroo, Redlands, Scenic Rim, Southern Downs, Southport, Surfers Paradise, Theodore, Toowoomba South and Warrego. For the ONP I predict wins in Callide, Gregory, Lockyer and Thuringowa.
 
I am, of course, aware that this is a general election, not a series of 93 by-elections. Nevertheless, my opinion is that this has been a good campaign by Labor, The big issue is the Carmichael coal mine proposed by Adani Mining. I think the Labor campaign has handled this question skilfully. On the one hand Labor’s insistence that the mine will be built has helped to “sandbag” potential losses in regional Queensland. On the other hand, the possibility that the mine just might not be built if Labor wins has helped it in the south east. However, I think it is the personal popularity of Annastacia Palaszczuk which will do the trick for her party.
 
The second purpose of this article is to comment on something which has received very little notice, the decision by the High Court to confiscate the NSW Senate seat won fair and square by Hollie Hughes of the Liberal Party. It means that the seat will go to Retired Major General Jim Molan AO DSC. The only possible democratic justification for such favouritism would be the fact that, at the 2016 Senate general election, Molan received 10,182 first preference votes below the line compared with 1,126 for Hughes. However, when the Court deigns to gives us its reasoning I would be extremely surprised if such a justification is even mentioned.
 
My sympathies in this matter have been recorded several times on this website. The articles in question are: “My sympathy for Culleton, Day, Ludlam and Waters” (posted Thursday 20 July), “Why Section 44 of the Constitution needs fixing” (Thursday 27 July), “Barnaby Joyce should have resigned seat in August” (Friday 8 September), “Citizenship debacle dragged on too long” (Wednesday 1 November) and “High Court is to blame for political crisis” (Wednesday 15 November). Readers will know that I think the High Court has made a series of outlandish decisions. However, with the case of Hollie Hughes the Court has, in my opinion, graduated from the outlandish to the outrageous. This decision is outrageously unfair to Hughes. Our High Court has no interest in fairness or justice. It is interested only in its own power which it exercises with the certainty of a zealot.
 
Of course, I am aware that High Court idolatry is very strong in this country. There is a gaggle of so-called “respected” commentators who constitute a cheer squad for the Court. Their current line is to argue that the Court is “a black letter law” institution. Nothing could be further from the truth which is that the Court becomes a black letter law court when it wants to be but should not be described generally in that way. As I have argued, the Australian High Court has actually engaged in judicial law making but has been able to generate a popular opinion to the effect that certain politicians have trespassed against the Constitution. Actually, what has happened is that some blameless, worthy and patriotic politicians have not been aware of their situation and have trespassed against laws legislated by the High Court from the bench. It is not surprising that the Court (and its media cheer squad) want the general public to believe that such politicians have behaved badly.
 
One of my themes has been to repeat my belief that the voting system for our House of Representatives is vastly superior to that for the unrepresentative swill of the Senate. The High Court is involved in that fact. It can confiscate seats from senators who have trespassed against judge-made legislation – and get ordinary people to believe that the senators have disobeyed some commandment in the Constitution. The prime example of this lower house democratic superiority comes in the form of by-elections in New England on 2 December and Bennelong on 16 December.
 
In the case of New England, I have total confidence in the judgment of the people. They will cock a snoot at the Court by giving it a big, big, two finger salute. In modern language they will say “up you” to the gods and goddesses in question. I cannot, however, say that I am at all confident of the judgment of Bennelong electors.
 
Readers may be interested to know that I shall be out of circulation from Friday 24 November to Monday 4 December, inclusive. During that period I shall give serious consideration to my next article which will be on Bennelong. A question in my mind is whether I should make a prediction. That will require very serious thought!
 
(Malcolm Mackerras is Honorary Fellow of Australian Catholic University. malcolm.mackerras@acu.edu.au)

 

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