Trump was able to garner massive support in segments of the American population, whereas Palmer’s UAP only managed 3.43% of first preference votes in the lower house at the 2019 federal election.
American-style populism does not resonate with large numbers of Australians. Australian political traditions are quite different to those of America especially in terms of welfare and health provision. Those who seek to take the populist route find it a hard road.
The last 12 months has demonstrated the significance of “quarantine culture” in Australia, a term first coined by cultural historian John Williams in the 1990s.
The natural instinct of Australians is to close borders against outside threats, be they national or state. The only partial exception to this rule at the moment is New South Wales — the one part of Australia that had a vigorous free trade (or internationalist) political culture in the 19th century.
In late 19th century and early 20th century Australia, writers such as WG Spence and magazines like The Bulletin talked about a desire to “protect” Australia against a harsh outside world and, if possible, limit the operation of international finance. The ideal was an Australia not dependent on the rest of the world.
In this regard, it is also worth recalling that one of the arguments often given for restricting Chinese immigration at the time was they were seen as carrying diseases into Australia.
This was a form of populism — but one quite different to the American version. It sought to protect Australia and Australians from the outside world, not to assert their right to liberty.
The COVID pandemic seems to have reignited this desire to protect Australians from an outside threat. The most remarkable aspect of this development has been the way in which this desire for protection has devolved to the state level.
Moves to close borders and institute quite draconian measures to halt the spread of the virus have been generally popular. Australians, it would seem, are more interested in being protected than they are in asserting their rights to do as they please.
What does this mean for Palmer?
This makes life quite difficult for someone such as Palmer, who has pushed for freedoms and border openings.
No wonder he has decided not to contest the WA state election. He is not in tune with the popular mood, which has strongly backed Labor Premier Mark McGowan’s hard border approach. It is not the time for libertarian populism.
It is difficult to know how long this protectionist attitude will last. One suspects the current situation with China has also fed into it. The mood is one of a threatening world.
… and for Morrison?
From here, two comments are worth making.
The first is political. Prime Minister Scott Morrison will need to cultivate this threatening mood if he is to succeed at the next federal election, which could be held as early as August. He will need to convince Australians he is the leader who will protect them most effectively. This means going slowly, slowly on things such as opening the international border.
The second is economic. Even in the 1890s, the Australian economy depended on international trade through the sale of wool. The idea Australia could operate independently of other countries was a fantasy.
The same is true today. The borders will need to re-open and students and tourists let in.
Morrison will have to perform a juggling act. He must appear to be providing protection even as he appreciates protection can only go so far.
In the meantime, the prospects look grim for populists such as Palmer and Hanson.
The prime minister and his coalition have the opportunity to steal many of their supporters. The pandemic shows that to be successful in Australian politics, leaders needs to pose as the protector of the people, not promise more freedom and more openness.
The reason for the lack of clarity is because the High Court has not yet handed down its reasons, which may take weeks or months. In the meantime, all we have is its orders – and they are phrased in a rather peculiar and limited way.
Section 92 of the Constitution says the movement of people among the states shall be “absolutely free”. But the High Court has previously accepted it can be limited if it is reasonably necessary to achieve another legitimate end, such as the protection of public health.
In the Palmer case, the High Court gave a very limited answer to the questions it was asked. In relation to the Emergency Management Act it said that “on their proper construction”, sections 56 and 67,
in their application to an emergency constituted by the occurrence of a hazard in the nature of a plague or epidemic comply with the constitutional limitation of section 92 of the Constitution.
Both these sections are quite general in nature. Section 56 says the minister can declare a state of emergency in the whole of the state or a part of it. There is nothing on obvious that would appear to offend section 92 of the Constitution in each of its limbs.
Section 67 says during a state of emergency, certain officers may issue directions that prohibit the movement of persons within, into or out of an emergency area. On the face of it, it is not directed at the movement of people across state borders. However, if a state of emergency were issued for the entire state under section 56, then section 67 would potentially allow a direction to be made that would prevent people from entering or leaving WA.
The High Court’s qualification in the phrase “on their proper construction” is therefore important. This raises the question of how the High Court has interpreted section 67 and whether it has restricted its interpretation in a manner that accommodates section 92 of the Constitution. We will have to wait for the High Court’s reasons to learn this.
The court’s order in relation to the Quarantine Directions is more unusual. It says the exercise of this power under clauses 4 and 5 of the directions “does not raise a constitutional question”. This refers to an issue raised during the hearing. The argument, initially raised by Victoria, was that the validity of a direction made under a power conferred by an act will depend on whether the direction falls within the scope of that power in the act.
If the section in the act that confers the power (in this case, section 67 of the Emergency Management Act) is constitutionally valid, then any direction that falls within that power will be valid too.
The real question, then, is whether the direction falls within the scope of the legislative power. This is not a constitutional question, but a question of administrative law. The High Court then said in its order that it had not been asked this question, so it did not need to answer it.
On the basis of this technicality, the High Court (or at least a majority of the Justices) concluded it was not necessary to address whether the actual directions that stop people going in or out of Western Australia were valid.
Does this mean more litigation?
As this case does not seem to have resolved whether or not the directions are valid, will there be more litigation? It is possible someone could challenge the directions, arguing this time that they do not fall within the scope of the authorising section in the legislation.
But such litigation would have to start from square one and so would take some time to determine. As it would not be a constitutional matter, it might have to be decided by a lower court first.
Further, before initiating any such litigation, it would be important to read the High Court’s reasons, which may not be produced for some time. Those reasons will tell us about the scope of the legislative provision, which will be essential to know before any challenge to the directions made under it could proceed.
Hopefully, by the time we get to that point, there will be no need for such litigation because no such directions will exist, if the pandemic continues to ease in Australia.
But it does mean we may be left with inadequate guidance about such matters for the future, which would be unfortunate given the cost and time taken with this litigation. Perhaps the court’s reasoning about the interpretation of section 67 of the Emergency Management Act will give us sufficient understanding about the operation of section 92 of the Constitution and the tests applicable to border closures in a pandemic. But that remains to be seen.
Victorian lockdown challenge also rejected
In a busy day for the High Court on Friday, it also threw out hotelier Julian Gerner’s challenge to Melbourne’s lockdown laws.
Gerner’s challenge, to be successful, would have required the High Court to find an implied freedom of movement in the Constitution.
This would have opened up all sorts of other laws to challenge and been condemned by conservatives as judicial activism. The court was so unimpressed by the argument that it unanimously rejected it on the spot, without even needing to hear Victoria’s response.
The end of the case was swift and brutal. It is unlikely this point will be raised again before the court.
But Queenslanders, by and large, appear to have given Palaszczuk’s government a tick of approval for its health and economic responses to coronavirus. Swings to the government were recorded in most parts of the state, with some surprising shifts towards Labor in areas like the Sunshine Coast.
The result reinforces the theory pandemic conditions favour incumbents and, similarly, the major parties. Western Australia’s Mark McGowan, who like Palaszczuk was a target of Coalition criticism over closed borders, will take heart ahead of a state election early next year.
However, this was not a straightforward repeat of recent election outcomes in the Northern Territory, ACT and New Zealand. Rather, this election panned out in ways particular to Queensland’s regional diversity, but still with ramifications for outside the state.
One Nation, Palmer barely register
The expected battleground over government-held marginal seats around Townsville and Cairns didn’t eventuate, with these seats holding firm against a concerted effort to get rid of Labor incumbents.
The LNP opposition’s pitch for a “crime crackdown” in the state’s north and plans for a youth curfew didn’t resonate, as at the last state election in 2017.
The headline story of the election was a dramatic collapse in the One Nation vote. The party nominated an unprecedented 90 candidates, yet leader Pauline Hanson was barely sighted during the campaign. What messages did emerge from Hanson’s camp — largely criticisms of COVID-19 measures — didn’t wash with an electorate seeking leadership and protection through the crisis.
Notably, Clive Palmer’s United Australia Party hardly registered, with about 0.6% of the popular vote. This follows another big spend on often misleading advertising. The electorate may have woken up to Palmer’s “spoiler” agenda, with his investment perhaps only resulting in a push for stricter truth in political advertising rules.
There are now realistic doubts over the ability of either Palmer or Hanson to recover electorally from these setbacks. For its efforts, One Nation did hold on to its sole seat in north Queensland. Katter’s Australian Party, likewise, retained its three northern seats.
The single biggest upset result — although widely expected —– came in South Brisbane, where Labor’s former Deputy Premier Jackie Trad lost the seat she’s held since 2012. A rise in Greens support in inner-Brisbane suburbs, as seen in other capital cities, was long viewed as a threat to Trad’s grip on the former Labor stronghold.
This result shows there are subtexts to this election result, and it is not all about the pandemic. For 30 years, Labor has often won state elections on its ability to hold onto “fortress Brisbane”. However, the party can’t take that position for granted now.
Even with the LNP’s continuing inability to bridge the Brisbane bulkhead, Labor can’t rest on its laurels after this win. Inner-Brisbane electorates like Cooper and McConnel will be next targets for the Greens, whose support at this election was concentrated in the capital where they now hold two seats.
On track to beat Beattie
Palaszczuk is now the most successful female leader in Australian history, as the first to win three elections. If she serves the full four-year term, she’ll be Labor’s second-longest serving premier in this state, surpassing Peter Beattie. Labor by then will have governed Queensland for 30 of the past 35 years.
This win cements the premier’s authority in her party, which is particularly important when it comes to relations between her administration and the federal government. Discussions over states border closures and other pandemic responses at the National Cabinet will be watched with renewed interest.
At the same time, the election result raises pressing questions for defeated Opposition Leader Deb Frecklington and the LNP. After recent inner-party turmoil agitating against Frecklington’s leadership, it’s expected there will be jostling for new party leadership.
As now seems ritual after state elections, calls are expected for the unsuccessful LNP to de-merge. The often uneasy marriage of Queensland’s Liberals and Nationals — apparently at risk of a lurch to the arch-conservative right — appears incapable of broadening its support in both the state’s capital and the far north simultaneously.
As the final results come in, they will continue to provide important lessons for both the federal Coalition, as well as federal Labor, in how best to appeal to Queensland’s varied constituency.
Palmer has argued his development proposals for the Balmoral South iron ore project were unlawfully refused by the previous state government, under former premier Colin Barnett. He is reportedly seeking about $30 billion in damages.
Before this, Palmer and his companies, including Mineralogy, had been pursuing these claims through arbitration – a dispute resolution process that happens outside the courts. This arbitration was about whether the WA government properly dealt with proposals Palmer’s companies made under a 2002 agreement.
The Mineralogy Act seeks to terminate the arbitration for the reported $30 billion claims.
It also invalidates existing arbitral awards, which are decisions determining parties’ rights and liabilities. Given that arbitrations are not court proceedings, these aspects of the act do not establish contempt of court.
However, where a party does not comply with an arbitration award, the award can be registered with the courts and then enforced as if it were a court judgment.
Before the act was passed, Palmer had registered two arbitration awards in the Queensland Supreme Court. The act seeks to remove the basis for these claims. There is precedent that this may constitute contempt of the Queensland court (although contrary to Palmer’s assertions, not the High Court).
However, even if Palmer establishes contempt of the Queensland court, that would not invalidate the Mineralogy Act. Any penalty imposed by the court would also be modest in comparison to the $30 billion damages claim.
Can the WA parliament pass a law that takes away rights without compensation?
Apart from the contempt issue, Palmer may argue the WA parliament cannot pass a law that takes away individual rights without compensation.
In this regard, state laws that take away rights are unusual, but not new.
While the WA parliament has not previously amended a state agreement with a mining company without consent, this was found to be valid in Queensland. This approach is consistent with the principle that the present parliament can generally amend existing laws.
As a political, rather than legal matter, politicians have found that laws targeting mining rights can be hazardous.
Whether public opinion will ultimately support the Mineralogy Act remains to be seen. But the current popularity of the WA government over its handling of COVID-19 and the potential popularity of “saving” the state’s finances will undoubtedly influence perspectives.
Are parts of the Mineralogy Act unconstitutional?
Palmer may also argue parts of the Mineralogy Act are unconstitutional.
Parliaments can pass laws about matters involved in ongoing legal disputes. They can even target particular cases or parties. But based on Chapter III of the Constitution, they can’t compromise the court’s integrity by telling a court how to decide. This constitutional line is often tricky to draw.
The act does not entirely remove the court’s power to examine the legality of government actions. But it does try to stop courts from giving remedies that are unfavourable to WA.
So, it doesn’t quite tell courts how to decide, but it does restrict what they can do, which is getting into uncertain constitutional territory.
The WA government has described the Mineralogy Act as “unprecedented,” containing a number of measures that are “not usual”.
but Mineralogy and Mr Palmer are not normal and these measures are needed to best protect the interests of the state and the community.
However, even necessary laws must be constitutional.
Does Palmer really stand to gain $30 billion in damages anyway?
Palmer has said the widely reported $30 billion price tag is “bullshit”. But Quigley tabled details in parliament last month showing the total damages sought by Palmer and his companies in relation to the iron ore project was at least $27.75 billion.
Palmer’s damages claims focus on the loss of opportunities to develop and sell the project to Chinese state-owned enterprises.
But core principles for assessing damages for breach of contract – which in this case is a 2002 agreement between Mineralogy and the state government – may stand in the way.
The state’s improper delay in approving the project must have caused the loss – but it is not clear this is the case. There may have been other reasons for the losses, including the post-GFC mining slump.
Also, the value of what Palmer has lost needs to reflect the likelihood the project would have occurred without the delay, and so is likely to be much lower than $30 billion.
Palmer must also have taken reasonable steps to minimise his loss. This might mean following the standard industry practice of amending the development proposals to meet state government conditions, noting the Mineralogy Act still leaves this possibility open.
What happens now?
Palmer has a potential claim that the passage of the Mineralogy Act constitutes contempt of the Queensland Supreme Court. It is also possible parts of the act, such as those that restrict the remedies available to courts, are unconstitutional.
However, even if Palmer succeeds in these claims, it is not clear how much he will actually gain financially, or if his claim is really worth $30 billion.
The Mineralogy Act is so unusual, it would be foolish to predict outcomes to these complex legal questions. Over the coming months, we will start seeing answers to these questions as Palmer brings lawsuits and proceedings work their way through the courts.
The answers will provide profound insights into the decision-making powers of states.
In particular, the Federal Court is being asked this week to identify precisely what risks the COVID-19 pandemic poses to public health in Australia, and the extent to which border closures might mitigate these risks.
The Federal Court will not make a final decision about the constitutional validity of the border closures. Instead, it will determine the relevant facts in the case based on evidence presented by public health experts.
These facts will be critical to deciding the ultimate constitutional question.
What happens next?
The Federal Court hearing is only step one. Once these factual questions have been decided, the case returns to the High Court, which will determine the constitutional questions.
While the parties and courts have all acknowledged the importance of expediting this matter, the earliest this case could be heard by the High Court would be September. This means a final decision on whether the border closures are valid could still be weeks away.
Another important practical consideration is how the WA government may react if it loses the constitutional challenge. McGowan has already said
if the High Court rules that the borders have to come down that is the law of the land.
But any High Court decision will be based on the reasonableness of the current restrictions, and the court tends to limit its decisions to the particular facts before it. The judges are unlikely to speculate about whether alternative border closure restrictions may be constitutionally valid.
As such, one option for WA if it loses may be to remove the existing restrictions, but immediately replace them with amended restrictions that are adapted to the court’s ruling.
A win for Palmer in the High Court may not therefore necessarily result in the WA borders immediately re-opening.
What will the High Court decide?
It is never possible to definitively predict the outcome of a High Court case. This is particularly true in the present case, given the specific constitutional issue at hand has not previously been directly considered by the court.
However, in cases involving questions of reasonableness and the balancing of public policy objectives, courts tend to err on the side of allowing governments a significant degree of discretion.
For this reason, the WA government has a strong constitutional case, provided the Federal Court finds the expert evidence supports border closures being justified from a public health perspective.
This highlights the significance of the current Federal Court hearing. It would be extremely controversial for the High Court to invalidate border closures imposed by a state government if the expert evidence established a public health justification for the measures.
Why governments need discretion in cases like this
Indeed, this highlights a more fundamental question about who is best placed to make these types of decisions in a democratic society.
There is no objectively right or wrong answer to the question of whether state borders should be shut in these circumstances, or for how long. It is instead a judgement call that has to be made on the best information available at the time, and that requires the decision maker to balance a range of different public policy factors.
An elected government is best placed to make judgement calls of this nature. It can adapt its response as circumstances change and take into account community sentiment (which is important to ensure compliance).
A government will also be subject to a range of different accountability measures, including, ultimately, judgement by the people at an election.
Judicial decision-making is very different. It is necessarily based on the particular facts of a single case before the courts and is not adaptive to circumstances. The courts also do not need to consider the practical challenges of implementing a specific policy or regulation, and are not subject to direct democratic accountability.
These can be virtues when the courts are engaged in legal decision-making. They also demonstrate why the courts should not be involved in making decisions of a more political nature.
While there is a legitimate role for judicial scrutiny, the judgement calls required in a public health emergency are more appropriately left to the executive and parliamentary branches of government.
This democratic mandate granted to elected officials should be respected by the courts when considering the current challenge to the WA border closures, particularly given the importance of what is at stake.
Nine months after the 2019 federal election, voters finally get a look at who funded the political parties’ campaigns.
The data reveals that big money matters in Australian elections more than ever, and donations are highly concentrated among a small number of powerful individuals, businesses and unions.
These are significant vulnerabilities in Australia’s democracy and reinforce why substantial reforms are needed to prevent wealthy interests from exercising too much influence in Australian politics.
Largest donations in Australian political history
The big story of the 2019 election was Clive Palmer, who donated A$84 million via his mining company Mineralogy to his own campaign – a figure that dwarfs all other donations as far back as the records go. The previous record – also held by Palmer – was A$15 million at the 2013 election.
While Palmer failed to win any seats last year, he ran a substantial anti-Labor advertising campaign, and claimed credit for the Coalition’s victory.
There are obviously many factors in an election win, but this raises a serious question: how much influence should we allow any single interest to hold over the national debate, especially during the critically important election period?
Several other large donors also emerged at this election. A A$4 million donation to the Liberal Party from the company Sugolena, owned by a private investor and philanthropist, takes the prize for the largest-ever non-Palmer donation.
Businessman Anthony Pratt donated about A$1.5 million to each of the major parties through his paper and packaging company Pratt Holdings. The hotels lobby, which has been influential in preventing pokies reforms in past state and federal elections, also donated about A$500,000 to the Coalition and A$800,000 to Labor.
While explicit quid pro quo is probably rare, the risk is in more subtle influences – that donors get more access to policymakers and their views are given more weight. These risks are exacerbated by a lack of transparency in dealings between policymakers and special interests.
Big money improves the chances of influence. But it also matters to election outcomes.
Looking back at the past five federal elections, an interesting correlation is evident: the party with the biggest war chest tends to form government.
It’s only a sample of five, and it’s unclear whether higher spending drives the election result or donors simply get behind the party most likely to win.
But in 2019, Labor was widely expected to win, so its smaller war chest supports the proposition that money assists in delivering power.
What policymakers should do to protect Australia’s democracy
Money in politics needs to be better regulated to reduce the risk of interest groups “buying” influence – and elections.
Real transparency is the first step. Half of private funding remains hidden from public view due to Australia’s high disclosure threshold and loopholes in the federal donations rules.
Only donations of more than A$14,000 need to be on the public record, and political parties don’t have to aggregate multiple donations below the threshold from the same donor – meaning major donors can simply split their donations to hide their identity.
Parliament should improve the transparency of political donations by
lowering the federal donations disclosure threshold to A$5,000, so all donations big enough to matter are on the public record;
requiring political parties to aggregate multiple donations from the same donor, so big donors can’t hide
requiring quicker release of donations data, so voters have information on who funds elections during the campaign – not nine months later.
These simple rule changes would bring Australia’s federal political donations regime in line with most states and OECD nations. The current regime leaves voters in the dark.
But the donations data shows transparency is not enough to protect Australia’s democracy from the influence of a handful of wealthy individuals. Ultimately, to reduce the influence of money in politics, parliament should introduce an expenditure cap during election campaigns.
Parties and candidates can currently spend as much money as they can raise, so big money means greater capacity to sell your message to voters.
Capping political expenditure by political parties – and third parties – would reduce the influence of wealthy individuals. And it would reduce the donations “arms race” between the major parties, giving senior politicians more time to do their job instead of chasing dollars.
At the May 18 election, the size of the lower house was expanded from 150 to 151 seats. The Coalition parties won 77 seats (up one since the 2016 election), Labor 68 (down one) and the crossbench six (up one). The Coalition government holds a three-seat majority.
Owing to redistributions and the loss of Wentworth to independent Kerryn Phelps at an October 2018 byelection, the Coalition notionally had 73 seats before the election, a one-seat advantage over Labor. Using this measure, the Coalition gained a net four seats in the election.
The Coalition gained the Queensland seats of Herbert and Longman, the Tasmanian seats of Braddon and Bass, and the New South Wales seat of Lindsay. Labor’s only offsetting gain was the NSW seat of Gilmore. Corangamite and Dunkley are not counted as Labor gains as they were redistributed into notional Labor seats.
Four of the six pre-election crossbenchers easily held their seats – Adam Bandt (Melbourne), Andrew Wilkie (Clark), Rebekha Sharkie (Mayo) and Bob Katter (Kennedy). The Liberals narrowly regained Wentworth from Phelps, but independent Zali Steggall thrashed Tony Abbott 57%-43% in Warringah. In Indi, independent Helen Haines succeeded retiring independent Cathy McGowan, defeating the Liberals by 51.4%-48.6%.
The Coalition easily defeated independent challengers in Cowper and Farrer.
While Bandt was re-elected, the Greens went backwards in their other inner-Melbourne target seats of Wills and Cooper. Only in Kooyong did the Greens manage to beat Labor into second.
The final primary votes were 41.4% Coalition (down 0.6%), 33.3% Labor (down 1.4%), 10.4% Greens (up 0.2%), 3.4% United Australia Party (UAP) and 3.1% One Nation (up 1.8%).
The final two-party vote was 51.5% for the Coalition to 48.5% for Labor, a 1.2% swing in the Coalition’s favour from the 2016 election. It is the first pro-government swing since the 2004 election.
It was expected the Coalition would do better once the 15 “non-classic” seats were included; these are seats where the final two candidates were not Coalition and Labor. However, 11 of these seats swung to Labor, including a 9.0% swing in Warringah and a 7.9% swing in Wentworth. Eight non-classics were inner-city electorates that tended to swing to Labor.
The table below shows the number of seats in each state and territory, the Coalition’s number of seats, the Coalition’s percentage of seats, the gains for the Coalition compared to the redistribution, the Coalition’s two-party vote, the swing to the Coalition in two-party terms, and the number of Labor seats.
Four of the six states recorded swings to the Coalition in the range from 0.9% to 1.6%. Victoria was the only state that swung to Labor, by 1.3%. Queensland had a 4.3% swing to the Coalition, far larger than any other state. Labor did well to win a majority of NSW seats despite losing the two-party vote convincingly.
Official turnout in the election was 91.9%, up 0.9% from 2016. Analyst Ben Raue says 96.8% of eligible voters were enrolled, the highest ever. That means effective turnout was 89.0% of the population, up 2.6%.
Education divide explains Coalition’s win
Not only did Steggall thump Abbott in Warringah, the electorate’s 9.0% swing to Labor on a two-party basis was the largest swing to Labor in the country. Abbott’s two-party vote percentage of 52.1% was by far the lowest for a conservative candidate against Labor since Warringah’s creation in 1922; the next lowest was 59.5% in 2007.
While Abbott did badly, other divisive Coalition MPs performed well. Barnaby Joyce won 54.8% of the primary vote in New England and gained a 1.2% two-party swing against Labor. Peter Dutton had a 3.0% two-party swing to him in Dickson, and George Christensen had a massive 11.2% two-party swing to him in Dawson, the second-largest for the Coalition nationally.
According to the 2016 census, 42% of those aged 16 and over in Warringah had at least a bachelor’s degree, compared with 22% in Australia overall. Just 13.5% had at least a bachelor’s degree in New England, 19% in Dickson and 12% in Dawson.
In Victoria, which swung to Labor, 24.3% of the population had at least a bachelor’s degree in 2016, the highest of any state in the nation.
The Grattan Institute has charted swings to Labor and the Coalition, taking into account wealth and tertiary education. Only polling booths in the top-income quintile swung to Labor; the other four income quintiles swung to the Coalition.
Areas with low levels of tertiary education swung strongly to the Coalition in NSW and Queensland, but less so in Victoria. There were solid swings to Labor in areas with high levels of tertiary education.
Some of the swings are explained by contrary swings in 2016, when the Coalition under Malcolm Turnbull performed relatively worse in lower-educated areas and better in higher-educated areas. However, Queensland’s 58.4% two-party vote for the Coalition was 1.4% better than at the 2013 election, even though the national result is 2.0% worse. The large swings to the Coalition in regional Queensland are probably partly due to the Adani coal mine issue.
Morrison’s appeal to lower-educated voters
Since becoming prime minister, Scott Morrison’s Newspoll ratings have been roughly neutral, with about as many people saying they are satisfied with him as those dissatisfied. After Morrison became leader, I suggested on my personal website that the Coalition would struggle with educated voters, and this occurred in the election. However, Morrison’s appeal to those with a lower level of education more than compensated.
In my opinion, the most important reason for the Coalition’s upset victory was that Morrison was both liked and trusted by lower-educated voters, while they neither liked nor trusted Labor leader Bill Shorten.
Earlier this month, The Guardian published a long report on the social media “death tax” scare campaign. While this and other Coalition scare campaigns may have had an impact on the result, they did so by playing into lower-educated voters’ distrust of Shorten. Had these voters trusted Shorten, such scare campaigns would have had less influence.
Labor also ran scare campaign ads attacking Morrison for deals with Clive Palmer and Pauline Hanson. But I believe these ads failed to resonate because lower-educated voters liked Morrison better.
I think Morrison won support from the lower-educated because they are sceptical of “inner-city elites”. The Coalition leader emphasised his non-elite attributes during the campaign, such as by playing sport and going to church. Turnbull was perceived as a member of the elite, which could explain swings to Labor in lower-educated areas in 2016.
Parallels can be drawn to the 2017 election in the UK. Labour performed far better than expected in the election, reducing the Conservatives to a minority government when they were expected to win easily. Labour had adopted a pro-Brexit position, which may have sent a message to lower-educated voters that they could support the party.
This offers an option for Australian Labor to try to win back support from lower-educated voters: adopt a hardline immigration policy. Votes that Labor would lose to the Greens by doing this would likely be returned as preferences.
See also my similar article on how Donald Trump won the US 2016 presidential election.
The problem with the polls
The table below shows all national polls released in the final week compared to the election result. A poll estimate within 1% of the actual result is in bold.
The polls did well on the One Nation and UAP votes, and were a little low on the Greens. The major source of error was that Labor’s vote was overstated and the Coalition’s was understated. Only Ipsos had Labor’s vote right, but it overstated the Greens vote by about three points – a common occurrence for Ipsos.
No poll since July 2018 had given the Coalition a primary vote of at least 40%. In the election, the Coalition parties received 41.4% of the vote.
Seat polls during the campaign were almost all from YouGov Galaxy, which conducts Newspoll. The Poll Bludger says these polls were, like the national polls, biased against the Coalition.
Analyst Peter Brent has calculated the two-party vote for all election-day and early votes. The gap between election day and early votes increased to 5.0% in 2019 from 4.6% in 2016. This does not imply that polls missed because of a dramatic late swing to the Coalition in the final days; it is much more likely the polls have been wrong for a long time.
Boris Johnson very likely to be Britain’s next PM, and left wins Danish election
I wrote for The Poll Bludger on June 14 that, after winning the support of 114 of the 313 Conservative MPs in the first round of voting, Boris Johnson is virtually assured of becoming the next British PM. Polls suggest he will boost the Conservative vote.
I also wrote on my personal website on June 6 about the left’s win in the Danish election. Also covered: a new Israeli election, the German Greens’ surge, and the left gaining a seat in the May 4 Tasmanian upper house periodical elections.
Can billionaires buy elections in Australia? In the 2019 election, Clive Palmer demonstrated they can certainly flood the print media, airwaves, social media and billboards with advertising and have an impact on the results through their preferences and negative advertising.
Apart from United Australia Party hype about how it was going to win government, most of the high-profile advertising in the 2019 campaign was negative. There is a longstanding 48-hour ban on political advertising in radio and broadcast media prior to polling day, but advertising on social media is not covered. The very useful Facebook Ad Library showed the kind of horrors being broadcast during the 48-hour blackout.
The Coalition was running many “death tax” ads on the Thursday and Friday. These were ads cut to show one Labor frontbencher after another saying the words “death tax”, when in fact they were denying a rumour about such a tax. Negativity, or even sheer invention, proved very effective.
By comparison, Labor ads on issues such as childcare or the gender pay gap – as well as its own negative ads aimed at the Coalition’s disunity and climate change policies – appeared to have little impact.
Lack of regulations at federal level
How have we arrived at a place where our elections are awash with paid advertising? Believe it or not, this has been a relatively recent phenomenon.
Elaborate precautions exist to prevent wealthy men practically purchasing seats: the expenditure of a senatorial candidate is limited to £250 and of a candidate for the other House to £100.
These expenditure limits became increasingly obsolete and were not enforced. They were discarded at the federal level after 1980, following a successful challenge to the election of three candidates in the Tasmanian seat of Denison for each having spent more than A$1,500 in the 1979 state election.
From that time, Australia has been notable for the laxity of its regulation of political finance. At the federal level, there are no restrictions on the size or source of donations to political parties, apart from the recent ban on foreign donations. And there are no limits on campaign expenditure or paid advertising, apart from the requirement for authorisation.
As a result, industry bodies wishing to fend off government regulation of guns or poker machines or financial advice are free to spend as much as they like on political donations and advertising.
There is also no “truth in advertising” requirement at the federal level, and the Australian Electoral Commission does not have the authority to approve electoral communications for publication. The only requirement in the Commonwealth Electoral Act is for authorisation, including of electronic advertising. Ultimately, it is up to the courts to enforce this, on a case by case basis.
This differs greatly from many countries in Europe, including the UK, Ireland and the Scandinavian countries, which have never allowed such paid political advertising. Two-thirds of European countries limit the amount a candidate can spend on a campaign, including advertising, and 43% limit the amount a party can spend.
This decision put a dampener on reform at the federal level. It is only recently the High Court has changed course to find that burdens on free speech can be legitimate if they serve another democratic purpose, such as political equality.
The constitutionality of regulating political donations was reaffirmed by the High Court in April 2019.
The government had passed amendments to the Commonwealth Electoral Act to enable Commonwealth law to override the tighter regulation of political donations at the state or territory level. This provision was overturned by the High Court and Queensland’s ban on developer donations was upheld. This was despite an attempt by the plaintiff, former LNP Queensland President Gary Spence, to argue it restricted freedom of political communication.
These High Court decisions open the way to possible future caps on expenditure and donations at the federal level, which could reduce the torrent of negative political advertising democracy is currently drowning in.
Impacts of unlimited spending on democracy
The lack of restrictions on political expenditure or donations at the federal level has contributed to perceptions that government is run primarily for the benefit of the big end of town. In 2016, 56% of respondents to the Australian Election Study believed this.
In addition, negative advertising further erodes the public’s faith in government. American political scientist Joseph Nye observed more than 20 years ago a relationship between negative advertising and loss of trust in political parties and government. In the Democracy 2025 survey conducted in Australia last year, respondents were asked about possible reforms to rebuild trust in government. It revealed strongest support for limits on political donations and campaign expenditure.
The laxity of political finance regulation at the federal level also creates loopholes at the state or territory level, where genuine progress has been made in limiting political expenditure by parties, candidates and lobbying groups.
It is equally important that allowing paid political advertising in electronic media drives up the costs of political campaigns and increases dependence on wealthy donors.
Australia could rein in the ever-increasing role of private money in its federal elections. Labor and the Greens are committed to greater transparency for political donations and spending caps on federal campaign expenditure, while the High Court has shown it is now unlikely to strike down reasonable (“proportionate”) regulation of political finance.
Democracy should be about political equality, not about the deep pockets of billionaires.
For some time now, Australian voters have rattled the cage of the political establishment. Frustrated with prime ministerial “coups”, political scandals and policy inertia, growing numbers have turned away from the major parties.
Does this mean minor parties and independent candidates will have a significant impact on the coming federal election?
Anti-major party sentiment doesn’t usually disrupt the numbers in parliament by much. Only five of 150 seats weren’t won by the major parties at the 2016 federal election, despite a national minor party/independent vote of over 23%. But a nationwide minor party Senate vote of over 35% in 2016 resulted in a record 20 crossbenchers – helped by a lower quota bar at a double dissolution election.
Familiar groups and faces are well placed to capitalise on this sentiment during the current election campaign.
Despite internal instability rocking its New South Wales branch, the Greens will hope to capitalise on growing progressive support (in Victoria especially) and an expected anti-Coalition swing to secure Senate influence.
Yet with recent Senate voting rule changes being tested for the first time at a normal half-Senate election, the Greens may in fact struggle to retain, let alone build on, their current nine Senate spots. Final Senate seats in most states will be fought over by a slew of (mainly right-wing) minor parties.
Clive Palmer’s United Australia Party (UAP), Pauline Hanson’s One Nation (PHON), and – unlikely as it seems – Fraser Anning’s new Conservative National Party will chase the “protest vote” in all states and (apart from PHON) territories.
But intense competition for the conservative vote means they and other minor parties stand only an outside chance of winning lower house seats. One exception is Bob Katter likely holding Kennedy in north Queensland for his eponymous Australian Party.
Still, an expected high minor party vote will keep the major parties – and the media – focused on preferencing arrangements throughout the campaign. These preferences will likely play a key role in electing minor party candidates to the Senate, potentially returning familiar faces like One Nation’s Malcolm Roberts from Queensland.
Deference to preferences
Recent opinion poll results have unexpectedly placed Palmer’s party ahead of the field of minor parties on the right. Months of saturation advertising, it seems, have imprinted the billionaire’s messaging on voters’ minds. Yet this sudden poll prominence, like Palmer’s billboard pledge to “make Australia great”, is largely illusory.
Nevertheless, both major parties have responded to this seeming upsurge in UAP support. The Coalition has hurriedly concluded a preferencing arrangement that sees Palmer and Prime Minister Scott Morrison somewhat “reconciled”. The deal might deliver much-needed preferences to Coalition MPs in marginal seats, particularly in Queensland. It also increases the chances of Palmer candidates – and the man himself – winning a Senate seat.
But these are big “maybes”. Minor party voters are renowned for following their own preference choices. In 2013, voters’ preferences from Palmer’s United Party candidates split only 54% the Coalition’s way.
Clearly stung by the attention being shown to Palmer, Hanson has announced PHON will preference Labor last in some key marginal seats held by Liberal incumbents. That includes Peter Dutton, whose seat of Dickson is under siege. In 2016, PHON took a different approach when it preferenced against sitting MPs, costing the Coalition its hold on Queensland seats like Herbert and Longman.
As part of the same deal, PHON will exchange preferences with the Nationals – whose leader Michael McCormack claimed “it just made sense” – lifting the Nationals’ hopes in marginal and at-risk regional seats.
Labor has also sealed a deal to boost its chances in marginal Victorian seats, concluding an arrangement with Derryn Hinch’s Justice Party. This will see Labor how-to-vote cards in tightly contested seats like Dunkley and Corangamite suggest second preferences go to Hinch’s Senate candidates ahead of the Greens (repeating Labor’s approach at the 2016 election).
But doing preference deals with minor parties carries reputational risks, as former Western Australia Premier Colin Barnett has warned. As has often been the case with personality-driven outfits, choosing suitable or qualified candidates easily brings minor parties undone.
Anning’s party has already stumbled badly. A pair of candidates in Victoria and the ACT has been called into question, and a party supporter allegedly assaulted journalists in Sydney.
Hanson’s party, no stranger to this pitfall, is still hosing down the controversy of the Al Jazeera taped conversations with party insiders, which has likely cost the party some support. Freshly released video footage has now forced Queensland Senate candidate, Steve Dickson, to resign in disgrace, in another blow to the often shambolic party’s standing.
Palmer’s candidates are similarly coming under scrutiny with doubts raised over citizenship qualifications, putting legitimate doubts into voters’ minds just as pre-polling has commenced.
Familiarity is key for independents
The best chances for independents are in lower house seats, yet there’s been only a dozen elected to parliament in the last several decades. Those who’ve broken through in election campaigns, like Kerryn Phelps at last year’s Wentworth byelection, typically benefit when there’s some controversy or ill-feeling towards an incumbent or their party.
But in the absence of full-on media glare of a high-profile by-election contest, Phelps might struggle to hold her seat – assuming the angst of local voters over Malcolm Turnbull’s deposing has dissipated.
Personal profile and high media interest puts Zali Steggall in with a chance to unseat Tony Abbott in Warringah. Likewise, a well-organised local campaign structure such as “Voices for Indi” behind Cathy McGowan’s hopeful successor, Helen Haines, can make the difference – though transition of support from one independent to another isn’t assured.
Newcomers on the ballot paper generally find the odds against them. Candidates with an established record and voter recognition, such as Andrew Wilkie in Tasmania’s Clark (like the Greens’ Adam Bandt in Melbourne and Centre Alliance’s Rebekha Sharkie in South Australia’s Mayo), enjoy an easier path to reelection.
Similarly, Rob Oakeshott is given a good chance of winning the New South Wales seat of Cowper from retiring Nationals MP, Luke Hartsuyker. He carries strong name recognition from his time as Independent MP for the neighbouring seat of Lyne.
But recognition alone mightn’t be enough for Julia Banks, the former Liberal MP for Chisholm in Victoria who is now challenging in Greg Hunt’s seat of Flinders. Her decision to preference Labor’s candidate above Hunt might turn away potential support from Liberal-leaning voters, yet could put the seat within Labor’s grasp.
The chances of an “independent tide” sweeping several seats this election is unlikely, in part due to the ability of major parties to drown out the competition. And counter to long speculation about the “march of the minors”, there could in fact be a reduced crossbench in both the lower house and Senate.
But voter dissatisfaction with the major parties persists, and minor party preferences are likely to play a critical role in many seats.
The prominence of minor parties will maintain an air of unpredictability for the remainder of the campaign, clouding an election outcome many saw not long ago as a foregone conclusion.
As head of the United Australia Party, Clive Palmer is no classic right-winger nor crotchety conservative. He is no angel either. He is often wrongly lumped in with Pauline Hanson and One Nation, and maybe even with the more recent retreads like Fraser Anning and Cory Bernardi.
But he is not like them. He is a big-spending, eccentric, brusque businessman espousing a strange mixture of populist musings. He is also eager to end the strangulation the major parties exert over policy options. On some issues he is more progressive than Labor (asylum seekers); on others he is more adventurous than the Coalition (taxation) – he is a protectionist nationalist without the xenophobic baggage.
So, just what is Palmer up to in this election campaign? After a fairly desultory campaign in 2013 when he won a single lower house seat and initially three senators, he sat out the 2016 federal election. Now, he’s back in full force, spending upwards of A$55 million before the election comes to an end. He’s standing candidates in every electorate and running a team in every senate constituency. Polling is showing him “influential” in many swing seats with support running into the mid-teens in some electorates.
Why is he spending so much of his own money on what looks like a pyrrhic campaign, even if he is elected to the Senate for Queensland?
Many people say Palmer has no policies, he stands for nothing except himself, and is just fanning a protest vote.
It’s true that Palmer tends to campaign with hackneyed slogans: “Make Australia Great”, “Aussies aren’t going to cop it any more” and “Let’s get something done for a change”, being the main three. He also authorises crass advertising – his prominent billboards and full-page poster-style advertisements feature himself, curtained in canary yellow, with the implicit message that the Liberals and Labor “don’t fight for you”. He is partial to hyperbole, and in the media often lives in a world of denial.
At the 2013 federal election, Palmer’s United Party released a slender raft of policy proposals. He opposed the carbon tax and supported tax reductions, but he also proposed a more compassionate policy towards asylum seekers, a conscience vote on same-sex marriage, free university places for residents, tax relief for mortgagees, regional wealth retention, and smaller government. Many of his 2013 policies reappear in recycled form in 2019.
He claims as his achievements to have stopped many of the “zombie” measures Tony Abbott and Joe Hockey tried to impose in the 2014 budget. These include: stopping GP co-payments of $7 per visit, opposing cuts to universities, preventing more social security cuts, opposing an increase in the eligible age for the age pension to 70 years, supporting climate change and renewable energy proposals, and supporting a ban on lobbyists and the removal of boat-arrival children from offshore detention. He also claimed credit for supporting the abolition of the carbon tax and the mining tax, and for bringing down Campbell Newman’s LNP government in Queensland.
This election, the UAP is proposing to increase pensions by 20% immediately (or $4,000 a year for each pensioner). It is advocating an extra $80 billion spending on health and a further $20 billion for education over the next parliament. Palmer continues to support mining development (with more onshore processing of commodities) and a zonal taxation system, with wealth generated in regions remaining in regions. He wants immediate investment in very fast trains.
The UAP is also fiercely criticising other mainstream party policies. For instance, Palmer opposes the “sell-off” of agricultural land to foreign buyers, targeting in particular Chinese government-owned companies for their aggressive purchasing strategies. His position is not xenophobic: he detests Chinese Communist Party business practices because of first-hand experience, but he is not against people of Chinese descent coming here or doing well.
He opposes the ALP’s tax policy, regarding it as insufficient and mostly deferred until after 2024. He wants all income tax rates reduced by 15% now, and for companies and small businesses to pay their tax bill at the end of the financial year once their earnings are finalised (thus abolishing the pernicious provisional tax paid quarterly in advance).
He also wants mortgagees to be able to get a tax offset for the first $10,000 of repayments to help first-home buyers. Furthermore, the UAP is campaigning for the abolition of the Murray-Darling Basin Plan and ending the public profligacy of water buy-backs. Palmer claims that spending on the national broadband network has “wasted” $55 billion “and it still doesn’t work”.
Palmer’s revival in his electoral stocks has occurred despite him being embroiled in many controversies and untrustworthy business practices. These include the debacle over the Coolum Resort, which closed under his management, costing 600 jobs and leaving over 300 investors without their assets.
Many commentators who highlight Palmer’s record believe the preference deal with the Liberals and LNP could perhaps damage the Coalition vote. But although Labor will whinge to the closing of the polls on May 18, I expect the cross-preferencing arrangement to benefit both the LNP and the UAP.
Palmer may not win any lower house seats, but his preferences might determine who does in up to 20 seats. If his electoral support continues to grow, he may well secure two or three senate positions, almost back to where he was in 2013.
But he is coming under widespread attack as an illegitimate player by many commentators and media outlets as well as his political opponents. Most of the major papers and TV news outlets regularly slam his antics (Google “Clive Palmer’s Criticism”).
The key perhaps to understanding Palmer’s gravity-defying electoral support is that he is a “positive populist” rather than a largely negative populist along the lines of Pauline Hanson’s One Nation, who has based her own protectionist stance much more explicitly on race and xenophobia. Indeed, Palmer eschews the racist policies and dog-whistling his rival right-of-centre competitors have delivered, including One Nation and Fraser Anning’s Conservatives.
Palmer carefully tailors his positive populist messages to appreciative audiences: his line that “something must be done” has resonated.
Certainly, some of Palmer’s electoral support at the ballot box will be simply a protest vote (and he will be aware of that). But perhaps some greater proportion will be voting for more genuine diversity from what the cartelised major parties are offering. Australia seems ripe for a more serious positive populism offered by Palmer and his UAP. The ultimate question will be whether the wheels will again fall of the wagon.
And what after the election? Palmer’s boast that he will form government is fanciful. He has long been anti-Labor and in this election is not directing preferences their way, so he may be well and truly ostracised by Labor if it wins office.
Alternatively, if the Coalition scrapes back in it will be partly obligated to his preferences and will have to accommodate whoever the UAP manages to get into parliament.
The last time Palmer held this power his influence quickly waned as his “team” mostly abandoned him. We will soon see if he has learnt from bitter experience.
This article is adapted from an earlier piece published in The Machinery of Government.