Proposed changes may confuse rather than clarify the meaning of Section 18C



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The Turnbull government’s objectives in seeking to change Section 18C are unclear.
AAP/Lukas Coch

Murray Wesson, University of Western Australia

The Turnbull government has announced proposed changes to Section 18C of the Racial Discrimination Act: the law that makes it unlawful to engage in acts that are reasonably likely to “offend, insult, humiliate or intimidate” someone because of their race or ethnicity. The Conversation

Under the proposals, the word “harass” will replace the words “offend, insult, humiliate”. A provision will also be included saying the test to be applied in deciding whether 18C has been breached is the objective standard of “the reasonable member of the Australian community”.

There are also proposed changes to the processes the Australian Human Rights Commission follows when someone lodges a complaint under 18C. For example, the commission will have to contact the people a complaint affects.

The changes to the commission’s processes are relatively uncontroversial; the commission supports many of them. They should also avoid a repeat of cases such as that involving three Queensland University of Technology students, who were not contacted until 14 months after the complaint was made.

However, the government’s objectives in seeking to change 18C are unclear. This may have the effect of confusing rather than clarifying what the law means.

Why does the government want to change the wording?

Much of the controversy surrounding 18C has focused on the words “offend” and “insult”. This is unsurprising: many people recognise these words are capable of applying to slights that should not be the concern of hate-speech laws.

Many also think that, in a democracy, there shouldn’t be a right not to be offended or insulted. The hate-speech laws of most other democracies don’t cover offensive and insulting acts.

The Federal Court has recognised the difficulties with 18C by interpreting it that so it applies only to:

… profound and serious effects, not to be likened to mere slights.

18C’s legal meaning is therefore different from its ordinary meaning.

However, this is not always well understood, either by critics of 18C and possibly by some people who have brought complaints under the provision. Many have argued there is a case for amending 18C to bring the law’s ordinary meaning into line with the Federal Court’s interpretation.

Against this, there have been concerns that any changes to 18C could send a problematic message to minority groups and give a green light to people who want to engage in racist behaviour. There have also been concerns about unintended effects upon a settled body of Federal Court decisions.

Clearly, any change to 18C would have to be carefully managed to clarify its meaning while avoiding these negative outcomes.

In this light, the government has not adequately explained what it is hoping to achieve by changing the wording of 18C. For example, why remove the word “humiliate” when controversy has focused on the words “offend” and “insult”? Why has the word “harass” been chosen instead of other options, like “vilify” or “degrade”?

It is also unclear if the government is seeking to bring 18C in line with the Federal Court’s interpretation, or if the government’s view is that the Federal Court’s current approach makes it too easy for race-hate complaints to succeed under 18C.

Unless the government adequately explains what it is seeking to achieve by changing 18C’s wording, it is unlikely to win broad support for its proposals, which look likely to be blocked by the Senate. It is also unlikely to achieve its stated aims of making the law clearer and more effective.

Who is the reasonable person?

Under the Federal Court’s interpretation of 18C, an “objective”, rather than “subjective” test is applied in deciding whether it has been breached.

The question is not whether the person making the complaint was subjectively “insulted, offended, humiliated or intimidated”, but whether the act was reasonably likely to have “profound and serious effects”.

In this regard, the Federal Court will often apply a “reasonable person” test. This involves considering the conduct’s likely effect on a reasonable member of the racial or ethnic group that is the target of the alleged conduct.

The government’s proposal that the standard should be “the reasonable member of the Australian community” therefore clarifies that the test under 18C is objective as opposed to subjective. However, a crucial difference is that the reasonable person is no longer a member of the racial or ethnic group that has been targeted, but is instead a member of the broader Australian community.

The government has not adequately explained what it is seeking to achieve through this change. One possible concern is that “reasonable” Australians who are ignorant of what is likely to harass or intimidate minority groups should not inadvertently breach 18C. However, a clear danger of the new test is that a law meant to protect minorities will not adequately reflect their perspectives.

One way this problem could be avoided would be for the Human Rights Commission and the Federal Court to regard the “reasonable member of the Australian community” as sensitive to minority concerns. However, in the short term, the change is more likely to confuse rather than clarify 18C’s meaning.

Murray Wesson, Senior Lecturer in Law, University of Western Australia

This article was originally published on The Conversation. Read the original article.

Coalition rebounds in Newspoll following Snowy announcement, but Essential moves to Labor


Adrian Beaumont, University of Melbourne

This week’s Newspoll, conducted 16-19 March from a sample of 1820, has Labor leading 52-48, but this is a 3 point gain for the Coalition since the previous Newspoll, three weeks ago. Primary votes are 37% for the Coalition (up 3), 35% for Labor (down 2), 10% for One Nation (steady) and 9% for the Greens (down 1). The Conversation

Despite the relatively strong result for the Coalition, Turnbull’s ratings only improved slightly: 30% (up 1) were satisfied, and 57% (down 2) were dissatisfied, for a net approval of -27. Shorten’s net approval was -28, down two points.

On Thursday, the first day of Newspoll’s fieldwork, Turnbull announced an extension of the Snowy River hydro-electric plan, and it appears that this announcement has given the Coalition at least a temporary boost. The public likes infrastructure policies that appear to offer solutions to Australia’s energy crisis.

Labor may also have been damaged by the furore over new ACTU secretary Sally McManus’ comments that workers could break “unjust” laws.

An additional Newspoll question found 47% in favour of a proposed change to Section 18C of the Racial Discrimination Act, while 39% were opposed. Kevin Bonham thinks the long preamble to this question is skewed towards supporting the proposed change.

Essential at 55-45 to Labor

This week’s Essential, conducted over the last two weeks from a sample of 1800, had Labor gaining two points to lead 55-45. Primary votes were Labor 37%, Coalition 34%, One Nation 10%, Greens 9% and Nick Xenophon Team 3%.

Newspoll and Essential disagree markedly this week, but Newspoll has performed well when measured against election results, so I trust it more than Essential.

Additional Essential questions are based on one week’s sample. On attributes of the political parties, Labor was up since June 2016 on positive attributes and down on negative ones, with the exception of being too close to the big corporate and financial interests (up 5). For the Liberals, the perception that they are divided was up 16 points, and “has a good team of leaders” down 9 points. Labor led on all positive attributes and trailed on all negative ones, with some differences of well over 10 points.

77% thought their gas and electricity costs had increased over the last few years, with only 2% thinking prices had decreased. 75% would approve of a reservation policy where a percentage of gas is reserved for domestic use, and only 6% would disapprove. 68% approved of the SA government’s energy plan, and only 11% disapproved. 31% thought coal seam gas mining on farming land should be restricted, 25% thought it should be banned altogether, and only 14% thought there was already sufficient regulation of coal seam gas mining.

In last week’s Essential, Turnbull’s net approval was -17, down two points since February. Shorten’s net approval was -19, also down two points.

Proposed tax increases that were aimed at the wealthy and multinational corporations polled strongly, but removing GST exemptions or increasing the GST rate did not have much support. 46% disapproved of the $50 billion in tax cuts for medium and large businesses, while 24% approved. 43% thought the company tax cuts would deliver business bigger profits, and that this money should be used for schools, hospitals, etc. 25% thought the company tax cuts would bring our tax into line with other countries, and deliver more jobs through greater business investment.

Trust in various media has taken an across the board hit since February 2016, but the ABC and SBS are the most trusted media.

Essential’s polling on penalty rates from two weeks ago found 56% disapproving of the Fair Work Commission’s decision to reduce Sunday penalty rates, with 32% approving. 34% strongly disapproved with just 9% strongly approving. 57% thought the penalty rate reduction would result in business making bigger profits, while 24% thought business would employ more workers. 51% thought the government should legislate to protect penalty rates, while 31% thought the government should accept the decision.

WA election late counting: Labor wins 41 of 59 lower house seats

At the WA election held 11 March, Labor won a massive landslide in the lower house, winning 41 of the 59 seats (up 20 since the 2013 election), to 13 for the Liberals (down 18) and 5 for the Nationals (down 2). According to Antony Green, Labor’s percentage of lower house seats (69.5%) is the highest it has ever won at WA lower house elections.

In the upper house, Labor and the Greens are likely to win a combined 18 of the 36 seats. Below the line votes have not yet been added to the count. The Greens and micro parties tend to perform well on below the line votes at the expense of the major parties. The Greens will be hoping that a below the line surge allows them to defeat the Liberals for the final seat in South Metro region. Below the line votes in that region may also give the Daylight Saving party a seat at the expense of the Liberal Democrats.

If Labor and the Greens combined win 18 of the 36 upper house seats, Labor could attempt to persuade a non-Labor/Greens member to be the upper house President. The President of the WA upper house can only vote when the votes are tied, so such a manoeuvre would give Labor and the Greens 18 of the 35 floor votes.

Dutch election: far right flops again

The Dutch election was held last Wednesday. The 150 members of the Dutch Parliament are elected by proportional representation. Geert Wilders’ far right Party of Freedom had a large lead in the polls in December, but that lead fell as the election approached, and they ended the campaign predicted to win a few seats less than the conservative/liberal VVD.

In the event, the VVD won 33 seats, to 20 for the Party of Freedom. It is likely that the VVD will head the new Dutch government, after negotiations with other parties are completed.

The WA and Dutch elections have both featured far right parties slumping as election day approached. Many supporters of such parties are against established parties, but not in favour of the far right’s policies. As these policies receive more exposure closer to the election, these supporters can desert.

The main reason Donald Trump won the US Presidency is that he won the Republican party’s nomination. Had Trump run a third party campaign, he would not have come close to winning. The US Republican party is already very right wing, and most Republicans utterly detest the Democrats and Hillary Clinton. Many Republicans probably had reservations about voting for Trump, but hated the alternative more.

French Presidential election: 23 April and 7 May

The French Presidential election will be held in two rounds, with the top two vote winners from the first round on 23 April proceeding to a runoff on 7 May, barring a very unlikely majority vote victory for one candidate in the first round.

Current polls have the far right Marine Le Pen leading the first round with 26%, followed by centrist Emmanuel Macron on 25%, conservative Francois Fillon on 18%, Socialist Benoit Hamon on 13% and the hard left Jean-Luc Melenchon on 12%. Other candidates have negligible vote shares.

While Le Pen is narrowly ahead in the first round, second round polling has Macron trouncing her by over 60-40, while Fillon defeats Le Pen by about 56-44.

With the Socialists discredited by Francois Hollande’s ineffectual Presidency (he did not run for re-election), a conservative was the clear favourite to win this election. However, Fillon has been dogged by allegations that he paid his wife and children government money for fake jobs, causing his poll ratings to slide. Last Tuesday, Fillon was placed under formal investigation over these allegations, the closest French equivalent to being charged.

Despite the allegations, Fillon has refused to quit. He won his party’s US style primary in November 2016, and his party has had no legal means to replace him. Nominations closed on Friday, so it is now too late to replace a candidate.

Adrian Beaumont, Honorary Associate, School of Mathematics and Statistics, University of Melbourne

This article was originally published on The Conversation. Read the original article.

Section 18C change appears doomed in Senate


Michelle Grattan, University of Canberra

Malcolm Turnbull has announced a watering down of the controversial Section 18C of the Racial Discrimination Act, in a major victory for the conservatives in the Liberal Party. The Conversation

Under the proposal the words “offend, insult, humiliate” will be replaced by “harass”. The word “intimidate” will remain.

Turnbull argued the government was “strengthening” the act, not weakening it.

In a series of changes to the act and the Human Rights Commission legislation, the government will introduce a “reasonable member of the Australian community” standard by which contraventions of 18C should be judged (rather than the present “reasonable member of the relevant community”), and toughen the commission’s processes to stop spurious claims and give greater fairness to those subject to complaints.

The legislation will raise the threshold for the commission to accept a complaint, provide additional powers for it terminate unmeritorious complaints, and limit access to the courts for unsuccessful complaints.

The change was unveiled on Harmony Day.

The Coalition partyroom overwhelmingly backed the measures, but five MPs – Julian Leeser, David Coleman, Julia Banks, Russell Broadbent and Craig Laundy, who is an assistant minister – opposed the change in wording. There is concern among some Liberals that the issue will lose them votes in seats with large ethnic communities.

Deputy Prime Minister Barnaby Joyce told the partyroom if MPs kept talking about 18C, votes would be lost because it would distract from the government’s agenda.

Turnbull said the new 18C would “strengthen the protections of Australians from racial vilification and strengthen the protection of free speech – one of the fundamental freedoms upon which our democracy depends”.

The wording of the present law had “lost the credibility that a good law needs”. “If you have language that is too wide, too general, it has a chilling effect on free speech,” he said.

He admitted there would be many critics and opponents of the change – “but this is an issue of values … free speech is a value at the very core of our party”.

In parliament Labor MP Anne Aly, who said she had been subject to racism time and again, pressed Turnbull on what he wanted people to be able to say that they could not now. He replied: “The suggestion that those people who support a change to the wording of Section 18C are somehow or other racist is a deeply offensive one”, listing a number of critics of 18C.

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In the Senate, Indigenous senator Malarndirri McCarthy said Turnbull had “on at least 16 occasions ruled out his government amending Section 18C”.

Before the election Turnbull indicated he did not plan to revisit 18C. His predecessor, Tony Abbott, had moved to reform it but then retreated. Abbott at the party meeting congratulated Turnbull and Attorney-General George Brandis, saying the situation had altered since his experience.

Asked at his news conference what had changed since his earlier stand, Turnbull cited the experience of the QUT university students who endured a long court case, which finally failed, and the late Bill Leak being taken to the commission over a cartoon in The Australian, a complaint which was dropped.

The changes will be introduced in the Senate and their fate will depend on what the Nick Xenophon Team does. Xenophon told the ABC that he supported comprehensive reform of the commission’s processes but did not support overhauling the wording.

“Let’s get rid of those frivolous and, some would say, vexatious claims by improving the process and then we can then look down the track, if there are still problems in respect to the wording,” he said.

He said there was strong feedback from a whole range of ethnic communities, including the Jewish community and Islamic communities, saying the wording should be kept as it was.

Xenophon later in a statement confirmed his Team’s opposition to changing 18C’s wording.

Conservative Liberal senator Eric Abetz, who has campaigned for change to 18C, said that: “Today’s announcement will be welcomed by Australians who prioritise freedom of speech above politically correct left-wing groupthink”.

“I am also pleased that the government will rein in the Australian Human Rights Commission which has morphed into self-appointed thought police,” Abetz said.

Opposition Leader Bill Shorten said the 18C change “isn’t about free speech, it’s about the prime minister appeasing his party”.

“The only two cases the prime minister held up today as his rationale could both have been addressed by improving the process – not by changing the law,” Shorten told parliament. He said the change to the Racial Discrimination Act would “make it easier for people to be insulted or humiliated on the basis of race”.

Race Discrimination Commissioner Tim Soutphommasane tweeted:

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The Federation of Ethnic Communities’ Councils expressed dismay at the proposal to change 18C. Chairman Joe Caputo said it sent “a strong signal that racism is acceptable”.

“Australia’s international reputation as a strong, successful multicultural and multi-faith community is threatened by this proposal,” he said.

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Michelle Grattan, Professorial Fellow, University of Canberra

This article was originally published on The Conversation. Read the original article.

The government’s multicultural statement is bereft of new ideas or policies – why?



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Malcolm Turnbull often claims Australia is the world’s most successful multicultural nation.
AAP/Lukas Coch

Andrew Jakubowicz, University of Technology Sydney

The slogan for the federal government’s newly released multicultural statement – United, Strong, Successful – sounds somewhat like a soundbite from Donald Trump’s presidential campaign. The Conversation

It starts with an untruth – that Australia is the world’s most successful multicultural nation. Canada would win that race on any rational criteria. But the new policy stays fairly much in the place where government rhetoric has been located for the past generation – social control and integration.

Conservative multicultural policies in Australia tend to stress social integration into the pre-existing social order, aspirational core values, and signing on to “Team Australia”. More progressive policies tend to stress social, economic and political participation, social justice, and access to education.

What’s in it and where did it come from?

Labor’s last multicultural policy in government in 2011 began with similar statements about multiculturalism meaning a fair go. It noted the importance of reciprocity and recognition. It also emphasised the rule of law and the importance of English as the national language.

The policy created an anti-racism partnership. Its key message was social inclusion.

Since then, a parliamentary committee on migration unanimously supported key innovations in its 2013 report. These included a strong national research program, the promotion of multiculturalism as a policy of rights, responsibilities and obligations in community languages, the promotion of inter-faith and intercultural dialogue, and a focus on employment-related issues.

The Federation of Ethnic Communities’ Councils of Australia, a peak body of many multicultural groups, has criticised the Coalition government’s new statement for not tackling the need for either a national Multicultural Australia Act – which was first foreshadowed in 1989 – or a national language policy. This would mirror some of the benefits created for Canada by its own legislation from the early 1980s, and in the Australian states since 1978.

The statement accepts many of the traditional rhetorical elements of the multicultural narrative. “Fair go” reappears, for one. Three groups of values are presented – respect, equality and freedom. These grow from the seven values espoused by the Howard-era Citizenship Council report and the four principles in Labor’s policy.

However, the statement has no interest in social justice. Multiculturalism seems to depend on maintaining the Nauru and Manus Island offshore detention options in order to have strong borders.

In the examples given of how multiculturalism is being implemented, the anti-racism strategy created by the previous government and continued until now is no longer mentioned. The statement offers no new policy initiatives – only a beefing up of the surveillance and integration priorities.

The idea that cultural difference creates productivity which ensures greater wealth and prosperity perhaps reflects Prime Minister Malcolm Turnbull’s input.

“Multiculturalism” as a philosophy is never mentioned. “Multicultural” is defined through its application to a lot of people of different cultural backgrounds living in the same society.

What now?

The statement claims the government will “condemn people who incite racial hatred”. But the ongoing attempts by many government MPs to reduce the protections Section 18C provides against this suggest the level of racial hatred that will be condemned will need to meet a much higher test than now exists.

There is something for nearly everyone in the rhetoric. Even One Nation likes it. But there’s nothing for anyone in terms of new ideas or actions.

The statement’s main effect will be inaction. The critical need for an Australian Multicultural Act to ensure a strong espousal of values and strong and funded delivery to implement them has once more been rejected.

The sector is left without any program bite, just more rhetoric. Its limited and highly vulnerable projects can be abandoned at the government’s whim.

Multicultural Australia remains on the very edge of government, the most junior of the junior assistant ministries. It’s dependent for any movement on weak product champions for its cause scattered through other parts of government.

There’s much ado about not very much at all in this announcement. And key areas like anti-racism are always at risk of disappearing in the next round of budget savings.


Further reading: Interculturalism: how diverse societies can do better than passive tolerance

Andrew Jakubowicz, Professor of Sociology, University of Technology Sydney

This article was originally published on The Conversation. Read the original article.

The case for holding politicians to the same disclosure standards as company directors



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Cory Bernardi was recently caught up in a dispute over whether he had correctly disclosed a property he owns.
AAP/Mick Tsikas

Bede Harris, Charles Sturt University

Recent commentary on the rules governing politicians’ declaration of financial interests has highlighted the ease with which they are circumvented and the laxity with which they are enforced. The Conversation

Senator Cory Bernardi was recently caught up in a dispute over whether he had correctly disclosed a A$1 million commercial property he owns in South Australia. He denies any wrongdoing and says he complied with the rules.

There are differences between the regimes governing politicians and directors of public companies; the former relate to assets whereas the latter govern transactions. But they both serve the same end – ensuring transparency and reducing the risk of conflicts of interest.

Why, then, are the rules so lax for politicians?

Why MPs aren’t pursued

Parliamentary rules require MPs declare a broad range of interests. They must also declare interests they are “aware” are held by their spouses and dependant children.

Politicians file interests late – sometimes only after media exposure. They frequently disregard the rules relating to minor assets and defy the rule relating to reporting spousal assets. The requirement of awareness in relation to family assets makes ignorance an easily available defence.

However, the chief problem is enforcement. The relevant law says events occurring within parliament, which would include breaches of financial disclosure rules, cannot be judged by the courts.

This rule is important because it protects free debate. But it ultimately makes the enforcement of internal parliamentary rules subject to political forces rather than purely legal considerations. This is because of how parliament’s internal processes work.

The initial decision on whether an MP has acted in contempt of parliament – for example, by failing to declare assets – is made by the relevant house’s privileges committee.

The government has a majority on the House of Representatives committee, so there is obviously little chance it will find against one of its own MPs. And even if a committee does make an adverse finding, it amounts only to a recommendation. It is up to the entire house (in which, again, the government has a majority) to make the final decision as to whether contempt has occurred and, if so, what punishment to impose.

Where an opposition MP is under the spotlight, a finding of contempt is theoretically more likely. But the reason this is only theoretical is that a party with a majority is aware the time will come when it will lose that majority. For this reason, it will not want to establish a precedent that can later be used against it.

So, it is in the interests of both major parties not to pursue contempt matters too vigorously.

This was strikingly illustrated in 2002, when former defence minister Peter Reith refused to appear before a Senate committee investigating the “children overboard” affair. On the face of it this amounted to contempt. Also, the Coalition parties did not hold a Senate majority. But Labor refrained from compelling Reith to give evidence or face contempt proceedings.

The upshot is there is no real likelihood MPs will face punishment for breaching financial disclosure rules. All that happens is they are allowed to “correct the record” – which makes failure to disclose essentially risk-free.

Company directors face stringent requirements

Contrast this with the requirements imposed on directors of public companies.

If any “related party” of a company – including a director, their spouse, child, parent or other company that any of these parties controls – wants to enter into a transaction with the director’s company, the shareholders’ permission has to be obtained in advance.

So, for example, if the father of a director wanted to purchase a vehicle owned by the company of which she was a director, the shareholders would have to approve the transaction before it took place.

Most importantly, any person involved in a breach of the rules is subject to a civil penalty of up to A$200,000 if the breach is not dishonest (that is, if it is unintentional), and faces criminal prosecution and a fine of up to A$200,000 and/or imprisonment for five years if the breach is intentional.

The consequences of MPs breaching financial disclosure rules could easily be toughened by amending the relevant law. Breaches should be subject to normal court proceedings, rather than being left to parliament’s dubious procedures. There should also be a penalty regime mirroring that applicable to company directors.

Bede Harris, Senior Lecturer in Law, Charles Sturt University

This article was originally published on The Conversation. Read the original article.

One Nation’s preference deal in the WA election comes back to bite it


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Pauline Hanson after her One Nation party performed worse than expected at the WA election.
AAP/Rebecca Le May

Narelle Miragliotta, Monash University

One Nation thought it could smell sweet electoral success for much of the Western Australian state election campaign. The Conversation

The party had reason to be confident about its prospects, despite the recent debacle concerning Rod Culleton, the former One Nation and later independent senator found ineligible to stand for parliament.

The party’s founder, Pauline Hanson, had resumed the leadership mantle and had emerged as a high-profile deal-maker in the Senate. Hanson used her profile to support her “down-to-earth, upfront and honest grassroots” candidates by making frequent visits to the state during the campaign.

Polls had the party as resurgent and on track to win up to 13% of the primary vote.

On the strength of its strong performance in the polls, both major parties were reported to have been jostling for One Nation’s preferences. It was the Liberals that sealed the deal in the end. Liberal leader Colin Barnett was unapologetic, even if “uncomfortable”, about the decision.

This deal was significant for One Nation.

The preference pact had the potential to enhance the electoral prospects of One Nation candidates contesting upper house regions.

The deal was also important because it signalled that One Nation was no longer a political pariah. Former Liberal prime minister John Howard defended the preference deal with One Nation on the grounds that “everyone changes in 16 years”. And high-profile Liberal senator Arthur Sinodinos argued One Nation are “a lot more sophisticated”.

But the party’s supposed new-found sophistication was rarely on show during the campaign.

Hanson applauded Russian President Vladimir Putin for his patriotism and strong-man persona, but paradoxically likened a policy that made eligibility for certain forms of family payments and childcare benefits contingent on parents vaccinating their children as akin to living in a dictatorship.

“Bloody lefties” within the education system were denounced as the cause of social problems that were afflicting regional towns. Muslims were accused of having “no respect” for Australia, and making preparations to eventually overthrow Australian governments.

The party struggled to contain its candidates. Two were disendorsed and two more resigned during the campaign. Four days before polling day, two former high-ranking party officials who were sacked from the party went public with their decision to take legal action against Hanson for age discrimination.

And three days before the election, there were concerns the party’s how-to-vote cards were not legally compliant.

In a final blow to an already chaotic campaign, Hanson declared the preference deal it had struck with the Liberals had likely done the party “damage”.

What cost the preference deal?

Certainly the result reveals that One Nation failed to perform as strongly as the early opinion polls had predicted. With 67.25% of the lower house vote counted, One Nation attracted only 4.74% of primary votes.

What then does this all mean? Was the preference deal a mistake for One Nation? Can a so-called anti-establishment party enter into a preference deal with an establishment party and survive to tell the story? The prevailing opinion is “no”.

However, let’s consider the claims that have been levelled about the preference deal. The main claim is the preference deal was the primary cause of One Nation’s electoral woes.

There is definitely polling data which shows many voters were opposed to the deal. What is less clear is if this opposition translated into action at the ballot box. If, for example, we calculate (or average) One Nation’s primary vote according to the actual number of lower house seats it contested, then its primary vote is around 8.26%.

While this figure is well short of the early double-digit polling results tipped for One Nation, it suggests that its support did hold up (and this is in spite of an electoral campaign that was chaotic and ill-disciplined).

The second general claim is the idea that a preference deal for either party under any circumstances is tantamount to electoral suicide.

Again, this argument might be something of a stretch. What appeared to actually blight this agreement was the particular electoral and political dynamics that surrounded it, and not the mere fact of a deal being negotiated between the two parties.

The Liberals struck a preference deal that favoured One Nation over its historical alliance partner, the Nationals. While the Liberals might have been justified by its decision, it ultimately proved very difficult to square with the conservative base more generally. The preference deal made a desperate party appear even more desperate.

One Nation agreed to a preference deal with the Liberals even though it proposed the partial privatisation of the electricity utility, a policy One Nation rejected. The planned privatisation of the utility was deeply unpopular, opposed by as many as 61% of voters.

In spite of its protestations to the contrary, One Nation had hitched its wagon to one of the most controversial policy issues of the entire campaign.

It could be argued that under different conditions, this preference deal need not have generated as much collateral damage as this one seems to have caused.

Any damage arising from this preference deal to One Nation is likely to prove fleeting. The party is on track to win two seats in the Legislative Council, most likely with the assistance of Liberal preferences.

In the end, the real danger for One Nation lies not with who it chooses to enter into preference deals with, but how it manages it internal affairs, and the conduct of its elected members – especially its leader.

Narelle Miragliotta, Senior Lecturer in Australian Politics, Monash University

This article was originally published on The Conversation. Read the original article.

Turnbull’s refusal to rule out preferencing Hanson raises questions about the ‘real Malcolm’



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Malcolm Turnbull will have to work out how best to handle Pauline Hanson and One Nation before the next federal election.
AAP/Brendan Esposito

Michelle Grattan, University of Canberra

For the national narrative, perhaps the most notable story out of the Western Australian election revolves around Pauline Hanson and Malcolm Turnbull. The Conversation

Despite the backlash from WA Liberal voters over the now-infamous preference deal the party did with her, Turnbull on Sunday wouldn’t rule out the Liberals playing footsie on preferences federally, deflecting questions by saying it was a matter for the party organisation.

Turnbull surely must be uncomfortable with his line. This would seem to be yet another area where he is not being true to his personal values. It must add to the confusion of voters wondering about the “real Malcolm”.

Hanson has come out of the WA election with her very ragged petticoats on display.

One Nation did much worse than it was polling early in the campaign. Expectations were high. On Saturday night Hanson was lamenting the preference deal, while trying to wriggle out of blame for the likely impact of her irresponsible comments on vaccination.

This was a polarising election – people were about changing the government, not just registering a protest.

While Hanson’s WA vote was very low in aggregate, in the three non-metropolitan regions for the upper house One Nation polled (on the count so far) between 9% and 14%.

In the Legislative Assembly seats with One Nation candidates, it polled about 8%; in the lower house seats it contested outside Perth it polled 9.6%.

ABC election analyst Antony Green says the preference deal delivered nothing to the Liberals, but has brought One Nation an upper house seat in the south-west region and potentially a second seat, in the mining and pastoral region.

Regardless of her poor performance, Hanson continues to present a challenge for the conservative parties.

The WA result cut her down to size, and the campaign shows how such a party is likely eventually to blow itself up (as it did before). But that could take a while, and in the meantime the damage Hanson can do in the coming Queensland election and – depending on what happens there – the federal election means the debate over how to handle her will continue to rend the conservatives.

It took some time for John Howard to muscle up against Hanson two decades ago. Now we see Turnbull remaining equivocal – denouncing some of her stands but courting her as the leader of a Senate bloc and keeping options open on preferences.

Any preference deal in Queensland or federally would be quite different from the WA one. It would not disadvantage the Nationals. There is a combined party in Queensland and a coalition nationally (as distinct from the “alliance” that operated in WA).

It would be a matter of putting One Nation ahead of Labor.

The debate ahead involves not just how the Liberals see their electoral advantage, but a question of principle: given what Hanson represents, shouldn’t the major parties form a united front to try to squeeze her out of existence – which means placing her last or, for the Liberals and Nationals, at least behind Labor?

The Nationals are clear-eyed about Hanson because she is such a direct threat to them. But they are divided on the best approach to the danger she represents, and are likely to be pragmatic about preferences.

It is notable that the Nationals vote in WA held up relatively well (though the fate of their leader Brendon Grylls is uncertain). The same happened at last year’s federal election; the Nationals are often closer to feeling on the ground than the Liberals.

Turnbull is right that the thumping WA loss is overwhelmingly about the local scene. If the federal government was doing well, the main impact of the result would be having to deal with another state ALP government. But when you are in deep trouble, it’s another matter.

The WA defeat will add to the jitters on the backbench; it is an object lesson in how fierce the voters can be when they turn against a government. You can be sure also that Turnbull’s enemies within his own ranks will find ways to turn this latest Liberal bad news against him.

Meanwhile Bill Shorten is seeking – without the slightest evidence – to segue from the state result to the federal battlefield by claiming that a reaction to Turnbull’s “absolute refusal to stop the cuts to penalty rates” was one factor.

Morale is vital in politics, and just as the federal Liberals will be discombobulated by the WA result, so federal Labor will be encouraged. In Labor there is confidence the tide is moving its way. Strategists believe Queensland can be held at the state election.

For Shorten the message from WA is that a steady leader, albeit without charisma but with a united team and an acceptable message, can win when the electorate has become disenchanted with the government.

Circumstances are different federally from WA, where the economy and the electorate are suffering from the post-mining boom shocks. But what’s common is a struggling government, a budget in the red, and a leader who has become unpopular.

Going for Turnbull is that he has time – two years – before the voters get a chance to declare “time’s up”. The question for him is how to best use that time.

Michelle Grattan, Professorial Fellow, University of Canberra

This article was originally published on The Conversation. Read the original article.

Labor wins WA in a landslide as One Nation fails to land a blow



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Former navy lawyer Mark McGowan is set to become the new premier of Western Australia.
AAP/Dan Peled

Natalie Mast, University of Western Australia

Labor has won the 2017 Western Australian election in a landslide, sweeping aside the long-running Barnett government and installing Labor’s Mark McGowan as the state’s 30th premier. The Conversation

The ABC is predicting Labor will win 40 seats, doubling its current number of seats held and providing it with a clear majority.

The Liberals look to have held only 14 of their 30 seats, while the Nationals appear to have held five of their seven lower house seats. Several seats technically remain in doubt.

Labor’s victory is Perth-based. Thirty-five of the 40 predicted seats it won are based in the metropolitan area. Within the three non-metropolitan regions, Labor has held Kimberley and Albany, and likely picked up only three seats – Bunbury, Collie-Preston, Murray-Wellington. All, except Kimberley, are in the state’s south-west.

State-wide, the One Nation vote in the Legislative Assembly is only 4.7%. It looks like One Nation could win two seats in the Legislative Council, one in Mining and Pastoral and the other in the south-west. This is below the results expected prior to Pauline Hanson’s disastrous trip to WA.

A drover’s dog type of election?

This was an election where the vote was driven by dislike of the sitting government, rather than attraction to the opposition.

It’s rare for a party to gain a third term in WA, and the Barnett government has been trailing in the polls for some time. In particular, as the face of his government, Premier Colin Barnett is deeply unpopular across the state.

The election day ReachTEL poll of 2,573 voters, published in The West Australian, had Labor on a two-party-preferred vote of 54% to 46%. Of those planning to vote Labor, 27.2% said their main reason was that “It’s time for a change of government”, and 16.3% said “I don’t like Colin Barnett”.

ReachTEL poll, March 9.
ReachTEL

Mark McGowan: WA’s new premier

McGowan will become premier after surviving a somewhat bizarre challenge on his leadership last March by former federal Labor minster Stephen Smith.

McGowan, who has been opposition leader since 2012, has patiently plugged away at the government.

In the strained economic circumstances in which WA finds itself, it is difficult to run a campaign full of expensive promises. The most high-profile of Labor’s policies was its declaration that it would not sell Western Power, which the government hoped to use to reduce state debt by around A$8 billion.

Labor also campaigned heavily on public transport, which the government had failed to deliver on over its last two terms.

The Metronet rail network plan gained a place in the public imagination during the 2013 campaign. The basics of the plan survived Labor’s defeat at the last state election as it remained popular within the electorate, providing a clear alternative plan to the changing positions of the Barnett government.

Labor cleverly claimed it would fund Metronet by cancelling the Perth Freight Link, which includes the deeply unpopular Roe 8 extension, and diverting the federal funding from that project to Metronet.

Colin Barnett’s defeat is a tale of a tin ear

The key issues in this election have tended to be economic in nature. WA’s unemployment rates, high state debt, high cost of living, and predicted budget deficits, have not instilled confidence in voters.

The outgoing premier’s last appeal to voters was “please don’t vote for a return to Dullsville” that ended with the old argument that the unions would be in control under Labor.

Given the economic uncertainty, it was a strange plea. Many voters are more concerned with being able to pay their mortgage than take advantage of the improvements to city.

Outgoing premier Colin Barnett had become unpopular with voters.
AAP/Richard Wainwright

Barnett’s fundamental problem is that while his government has transformed Perth over the last eight years, voters are more concerned with their own economic circumstances, and the benefits of large infrastructure projects have not resonated.

It’s a hard sell to convince people that while the significant economic downturn over the last four years is due to circumstances the government can’t control, the government can nonetheless be trusted to turn the state’s fortunes around.

Brendan Grylls distinguishes the Nationals from the Liberals

Outside of Perth, Brendan Grylls appears to have saved the Nationals from oblivion.

Grylls is responsible, through the Royalties for Regions program, for differentiating the Nationals from the Liberals. While the swing against the Liberals is projected to be around 16%, the swing against the Nationals is projected to be less than 1%.

The fact the Nationals have held their ground is impressive on two fronts. The first was the threat One Nation posed outside the metro area.

The other is that the WA Chamber of Minerals and Energy spent around $2 million campaigning against Grylls’ proposal of raising the 25 cent per tonne production rental fee on iron ore to $5, which would deliver an estimated $7.2 billion over the next four years.

Grylls is the member for Pilbara, having moved from the seat of Central Wheatbelt in the 2013 election. The tax policy was high risk, particularly for Grylls himself given that much of WA’s mining happens in his seat.

While the plan seems to have worked in the agricultural parts of the state, the count will continue in the mining seats of Pilbara and Kalgoorlie, which are too close to call.

What the eastern states can learn from the result

In terms of the WA election having federal implications for the Turnbull government, this really was an election determined by local issues.

During the campaign Bill Shorten visited three times, while Malcolm Turnbull made only one fleeting visit, where he failed to deliver a plan to get WA a “fair” share of the GST.

While it is generally not opportune for a national governing party to lose at state level, only internal mischief-makers would try to blame the loss on Turnbull’s leadership.

The most significant issues that will resonate across the country will be the outcome of the preference deal with One Nation, and the ability of the Nationals to differentiate themselves so convincingly from the Liberals.

Natalie Mast, Associate Director, Business Intelligence & Analytics, University of Western Australia

This article was originally published on The Conversation. Read the original article.

Labor romps to landslide win in WA election


Adrian Beaumont, University of Melbourne

With 67% of enrolled voters counted in yesterday’s Western Australian election, the ABC’s election computer was giving Labor 36 of the 59 lower house seats, to 11 Liberals and 5 Nationals. Of the seven doubtful seats, I expect the Liberals to overtake narrow current Labor leads in two seats on late counting. If that happens, Labor will win 38 seats to 21 for the Liberals and Nationals, a reversal of the 2013 result (38 Liberal/Nationals, 21 Labor). The Conversation

Primary vote shares were 42.8% for Labor (up 9.7 points since the 2013 election), 31.4% for the Liberals (down a massive 15.7 points), 5.4% for the Nationals (down 0.7), 8.5% for the Greens (up 0.1), a disappointing 4.7% for One Nation and 7.2% for all Others (up 1.9). As post-election day votes are processed, I expect Labor’s share to drop slightly, and the Liberals and Greens to slightly improve.

No statewide two party result has been provided by the Electoral Commission, and this will not be known until after all other results are finalised.

At the time of One Nation’s last peak from 1998-2001, they won 9.6% at the 2001 WA election. After polling in the 12-13% range early in the campaign, One Nation’s vote slumped to 7-9% in the final polls. Polls may have overestimated One Nation as they were only standing in 35 of 59 lower house seats.

There were two reasons for One Nation’s loss of support late in the campaign. First, the preference deal with the Liberals damaged their brand: it is hard to be an anti-establishment party if you deal with an established major party. Second, One Nation’s policies received more exposure in the closing days, causing some One Nation supporters who disagreed with the party’s far right agenda to desert.

The preference deal with One Nation also had dire consequences for the Liberals. While the Liberals were behind prior to the deal, it did not appear that Labor would win a landslide before the deal was announced. The fallout from this deal will mean that the Coalition parties and One Nation, in other states and federally, will be more reluctant to trade preferences.

Barnett was deeply unpopular, WA’s economy was weak, and the unpopular Federal government was a drag. These factors made a Labor win probable, but the deal with One Nation probably exacerbated the Liberals’ losses.

This will be Labor’s first true landslide in any state or federally since 2006, when Labor had landslide wins in Victoria, Queensland and Tasmania. By “landslide”, I mean not just defeating the opposition, but thrashing them in both seat and vote terms. That Labor won a big victory in the most conservative state at Federal level will make it even sweeter for them.

Polling appears to have underestimated the Greens and Labor’s primary votes a little, and overestimated One Nation. Galaxy and Newspoll had the Liberals and Nationals about right, but ReachTEL overestimated their vote.

Fluoride Free could win a seat in WA upper house

While 67% of enrolled voters for the lower house have been tallied, only 47% has been counted in the upper house. The WA upper house is severely malapportioned, and still uses the group voting ticket system that was abolished in the Senate.

Using the group voting tickets, the ABC is currently predicting Labor to win 15 of 36 upper house seats (up 4 since 2013), the Liberals 9 (down 8), the Nationals 4 (down 1), the Greens 3 (up 1), Shooters 2 (up 1) and One Nation, Liberal Democrats and Fluoride Free are currently predicted to win one seat each.

The ABC currently gives one seat to Daylight Saving, but Kevin Bonham spotted an error. The Daylight Saving candidate in Mining and Pastoral region is actually the Shooters candidate.

With the upper house count well behind the lower house count, these results may change. However, currently Fluoride Free is winning a seat in East Metro region on just 0.35%. A quota is 1/7 of the vote, or 14.3%.

Adrian Beaumont, Honorary Associate, School of Mathematics and Statistics, University of Melbourne

This article was originally published on The Conversation. Read the original article.