High Court to rule on two Labor MPs, but partisan row protects others


Michelle Grattan, University of Canberra

A batch of MPs escaped being sent to the High Court on Wednesday thanks to a stalemate between the government and the opposition over who should be referred.

But the eligibility of two Labor MPs will be considered by the court – Victorian David Feeney and ACT senator Katy Gallagher.

The opposition failed in an attempt to get a “job lot” of MPs referred that included four Liberals, four from the ALP, and the Nick Xenophon Team’s Rebekha Sharkie.

The ALP motion was supported by all five crossbenchers, resulting in a tied vote of 73-73. The Speaker, Tony Smith, acting in line with parliamentary convention, used his casting vote to defeat the motion.

The government, insisting that none of its MPs should be referred, wanted the members considered individually.

But crossbenchers rejected that argument, seeing it as the government being partisan.

The government said it would continue to talk to the crossbenchers overnight but they are not likely to be swayed before parliament rises this week for the summer recess.

The Labor MPs in the opposition motion were Justine Keay, Josh Wilson, Susan Lamb and Feeney.

The case of Gallagher – who took action to renounce her British citizenship but did not get registration of her renunciation before she nominated for the 2016 election – should provide guidance in relation to the three other Labor MPs and Sharkie, who have similar circumstances.

Labor argues that those who had taken reasonable steps to renounce but did not receive their confirmations in time (or, in Lamb’s case, at all) are eligible.

Feeney is in a different category from the other Labor MPs – he has not been able to provide evidence that he renounced his British citizenship in 2007, as he says he did. He was referred after the job-lot motion’s defeat.

Both Gallagher and Feeney accepted they should be referred. Gallagher, while maintaining her eligibility, told the Senate she was standing aside from her frontbench positions and had asked to be referred to the court, saying her opponents would continue to use the issue.

Labor said the four Liberals – Jason Falinski, Julia Banks, Nola Marino and Alex Hawke – had not provided adequate documentation of their eligibility.

In the run up to the vote, Marino released advice from the Italian consulate saying she was not an Italian citizen.

Falinski produced advice saying that he was not a citizen of the UK, Poland, Russia or Kyrgyzstan. But the letter to Falinski was dated Wednesday and the law firm, Arnold Bloch Leibler, said that “as previously discussed, we cannot conclusively advise on foreign law and recommend that you seek independent advice from foreign law experts”.

The crossbenchers were lobbied hard over the motion, including on the floor of the chamber, by both the opposition and the government.

Labor made an unsuccessful attempt to get its motion dealt with before Barnaby Joyce, who has just faced a byelection after the High Court declared him ineligible to sit, returned to the lower house.

Labor had a temporary majority but did not have enough time. Joyce was sworn in at 1.15pm and his presence in the subsequent debate meant the numbers were tied.

Moving the motion, Manager of Opposition Business Tony Burke said: “The only appropriate way for us to deal with this is to make sure that, wherever there has been serious doubt across the chamber, the High Court becomes the decision-maker rather than the numbers on the floor of this house”.

Arguing for a case-by-case approach, Malcolm Turnbull said that Labor “with not a principle in sight, with not a skerrick of evidence … wants to send members of the House to the High Court … without making any case that they are, in fact, dual citizens”.

The Greens’ Adam Bandt said the approach must be “even-handed and non-partisan”. “We think there should be an agreed set of names that go forward from this house.”

Sharkie, appealing for unity, said: “We will hang individually if we don’t hang together”.

Crossbencher Bob Katter told the parliament that none of the MPs should be sent to the High Court.

Labor leader Bill Shorten revealed that he had known for just over a week that Feeney didn’t have the required documents.

“I informed him that he needed to tell the parliament what was happening, and I made it clear to him that there was a deadline of disclosure,” Shorten told reporters.

Feeney has said he is still trying to have the British authorities find documentation that he renounced UK citizenship.

If Feeney is disqualified, Labor would be at risk of losing his seat of Batman to the Greens. There is doubt over whether he would be the candidate in a byelection.

Shorten did not disguise how angry he is with Feeney. “I am deeply frustrated – that’s a polite way of putting it – that one of my 100 MPs can’t find some of the documents which, to be fair to him, [he] says exist and says he actioned,” Shorten said.

He admitted that if he had been aware of Feeney’s situation he would not have been so definite in his repeated confident statements about the eligibility of all his MPs.

The ConversationLabor was divided internally over whether it should pursue Josh Frydenberg, whose mother came to Australia stateless: the Burke motion did not include him. The ALP is also not at this point pursuing another of those it has named, Arthur Sinodinos, who is away on sick leave.

https://www.podbean.com/media/player/hdjfk-7dce11?from=site&skin=1&share=1&fonts=Helvetica&auto=0&download=0

Michelle Grattan, Professorial Fellow, University of Canberra

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

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Near enough may not be good enough as parliament’s dual citizenship crisis deepens



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Labor senator Katy Gallagher has been referred to the High Court over her possible dual citizenship status.
AAP/Lukas Coch

Lorraine Finlay, Murdoch University

Over the past five months, a growing of numbers MPs elected at the 2016 federal election have either been disqualified or resigned from parliament because of dual citizenship issues.

This extraordinary chain of events started back in July with the resignation of Greens senator Scott Ludlam. It looks set to continue into 2018, after the publication of citizenship registries revealed several more MPs have serious dual citizenship questions to answer.


Further reading: New blow for Labor as David Feeney hits citizenship hurdle


Among those likely to be referred to the High Court are several senators and MPs whose citizenship declarations show they were technically still dual citizens when nominations closed before the 2016 federal election, but who claim they had personally taken all reasonable steps to renounce their dual citizenship before that date.

This group includes Labor’s Katy Gallagher (who has been referred to the High Court already), Justine Keay, Susan Lamb and Josh Wilson, and the Nick Xenophon Team’s Rebekha Sharkie.

All reasonable steps?

Several of these MPs have received legal advice suggesting they will not be disqualified under Section 44 of the Constitution because they had taken all reasonable steps to renounce their dual citizenship before nominating as an election candidate.

For example, all appear to have completed their renunciation paperwork and paid the required fee before nominating, but were waiting on the British Home Office to register the renunciation. They did not receive formal confirmation of their renunciation until after the election.

Under British law, citizenship does not cease until the secretary of state actually registers the declaration of renunciation.

In order for someone personally taking “all reasonable steps” to be eligible – in circumstances where that renunciation has not actually been accepted – the High Court would need to take a flexible view of Section 44’s wording.

The court has never been asked to directly consider this precise set of circumstances before, so nobody can be entirely sure what it would find. But given the strict reading of Section 44 adopted in recent cases, it would not be surprising if these five MPs were all found to be disqualified.

In the case of the “Citizenship Seven”, the court unanimously found that the dual citizenship provision is “cast in peremptory terms”. This means it sets out a definite obligation in clear and certain words.

While the court found there would be cases where someone who had taken “all reasonable steps” to renounce dual citizenship would not be disqualified, this was not a test of general application. Rather, it was a specific exception that applied where the law of a foreign country prevented someone from renouncing their foreign citizenship, or made it unreasonably difficult for them to do so.

This was based on the constitutional imperative that an Australian citizen should not:

… be irremediably prevented by foreign law from participation in representative government.


Further reading: The High Court sticks to the letter of the law on the ‘citizenship seven’


None of the five MPs mentioned above were “irremediably prevented” from renouncing. Instead, they had failed to do so in enough time to have the renunciation registered before the required date. So, it is difficult to see the court accepting that the British renunciation procedures were so unreasonable that they amounted to someone being “irremediably prevented”.

Taking this approach, the only fact that will matter is that these MPs were all still actually dual citizens at the time of nomination. On this basis, they would all be disqualified.

To escape disqualification, they will need the court to extend the “all reasonable steps” exception to every case of dual citizenship. It is open to the court to do this, but the recent decisions in relation to both the Citizenship Seven and Hollie Hughes suggest a stricter approach.


Further reading: High Court strikes again – knocking out Hollie Hughes as replacement senator


This means it is entirely possible that Gallagher, Keay, Lamb, Wilson and Sharkie will all be declared ineligible. At the very least, there is a real question to be answered about their eligibility.

That it has taken more than five months and a compulsory declaration procedure for this to come to light reflects extremely badly on these MPs.

Previous ineligibility

The citizenship registers have also revealed that there are several MPs who were eligible at the time of the 2016 federal election but who appear to have had dual citizenship issues for at least part of a previous parliamentary term. This includes Greens senator Nick McKim, Labor senators Alex Gallacher, Louise Pratt and Lisa Singh, and Liberal senator Dean Smith.

Since they relate only to previous parliamentary terms, none of these cases will be referred to the High Court. However, these MPs’ conduct should not escape criticism.

Again, that it has taken more than five months and a compulsory declaration procedure for these cases to come to light is highly disappointing.

The ConversationThe real issue here isn’t one of dual citizenship, but rather the honesty and integrity of our MPs. The dual citizenship issue is likely to be fixed in the future through greater candidate awareness and political parties undertaking stricter vetting processes. The loss of trust between the Australian people and their MPs is much harder to fix.

Lorraine Finlay, Lecturer in Law, Murdoch University

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

Citizenship crisis claims Nick Xenophon Team’s Kakoschke-Moore


Michelle Grattan, University of Canberra

Nick Xenophon Team senator Skye Kakoschke-Moore has resigned from parliament after being advised she is a British citizen via her mother, in another blow to the party.

The NXT has three Senate spots, as well as one member in the House of Representatives, Rebekha Sharkie – whose future is under a cloud in the citizenship crisis.

A tearful Kakoschke-Moore said she was “heartbroken” by the news. She had previously not believed she had British citizenship and had only checked when preparing the declaration to be presented to parliament.

Her mother was born in Singapore to British parents, and migrated to Australia with her family.

“Usually where a parent is born outside of the UK they are unable to pass their citizenship on to their children where those children are also born outside of the UK. It was my understanding for my entire life that I was not eligible for British citizenship due to that rule.”

When she was living in Oman as a child her father had inquired whether she was eligible for a British passport and was told she was not because she wasn’t eligible for citizenship. “We had no reason to doubt that this advice was incorrect.”

But the British Home Office had now advised her that, through a complicated train of circumstances, her mother became a British citizen under British legislation of the early 1980s “and I am therefore a British citizen under … the British Nationality Act 1981”.

She said she would ask that her case be referred to the High Court.

The issue is particularly complicated for the NXT because the next candidate on its ticket, Tim Storer, is no longer in the party after falling out with it.

Storer had wanted to replace Nick Xenophon when he quit the Senate for state politics. But it was a casual vacancy and Xenophon was able to appoint his staffer, Rex Patrick.

Xenophon told a joint news conference with Kakoschke-Moore that preliminary legal advice was “that we’re in uncharted legal territory as to whether it would be a countback or some other mechanism of dealing with this” vacancy.

The NXT will argue that Storer should not get the spot because he is no longer in the party. But Anne Twomey, constitutional expert from Sydney University, said she very much doubted the argument would fly.

Xenophon said he hoped that Kakoschke-Moore would be back in the Senate soon, at least after the next Senate election.

He said Kakoschke-Moore’s circumstance was completely different from that of Sharkie – who didn’t receive her confirmation of renouncing her British citizenship until after her nomination went in.

The British Home Office had pocketed her money before the nomination, Xenophon said. He said the initial legal advice was that she was in very strong position.

“There may be a referral. I think that what we’ll expect to see in coming days is a whole stack of referrals to the High Court from people from the major parties and crossbench as well.”

The ConversationKakoschke-Moore is the ninth member of the federal parliament to have either resigned or been knocked out by the High Court over being a dual citizen at the time of nomination.

https://www.podbean.com/media/player/nqtdd-7bf599?from=site&skin=1&share=1&fonts=Helvetica&auto=0&download=0

Michelle Grattan, Professorial Fellow, University of Canberra

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

Sharkie told by Turnbull she may have to go to High Court



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Rebekha Sharkie was registered as renouncing her UK citizenship after she nominated for election.
Mick Tsikas/AAP

Michelle Grattan, University of Canberra

Malcolm Turnbull has told Rebekha Sharkie, the Nick Xenophon Team’s sole member in the House of Representatives, that her eligibility may have to be determined by the High Court.

Sharkie, born in Britain, was registered as renouncing her UK citizenship after she nominated for last year’s election, although she started the process a good deal earlier.

Turnbull rang her on Thursday before he left for the APEC meeting in Vietnam. Sharkie had been in the media saying she wanted to meet him about the citizenship crisis.

She said in a statement that he asked her about dates. She completed her forms on April 19 last year; the material was sent express international post. On June 2 the Home Office acknowledged her application had been received. She nominated for Mayo on or about June 7. The Home Office registered her renunciation on June 29.

Under Section 44(i) of the Constitution a person is ineligible to nominate for election to federal parliament if they are a dual citizen.

Sharkie, who said she had been open throughout about her citizenship status, produced documentation, and supported a full audit of MPs, said: “The prime minister in our conversation suggested I may have to refer myself to the High Court”.

“I believe that I took all steps that were required by the UK to renounce any entitlement to UK citizenship, that were within my power to take. I had no control as to the speed at which the UK Home Office processed my application but I note that well over a month would have passed before I actually nominated for the seat of Mayo.”

Sharkie is the latest name to be canvassed in the list of parliamentarians who might be ineligible to sit in parliament, following those of Tasmanian crossbench senator Jacqui Lambie and assorted Liberal and Labor MPs.

Liberal backbencher John Alexander is waiting for Home Office advice as to whether he is a British citizen by descent. Labor’s Justine Keay and Susan Lamb are in similar circumstances to Sharkie.

Meanwhile, Bill Shorten and Turnbull escalated their fight over the disclosure resolution the government plans to put to parliament and related issues – although Turnbull also signalled he expects to reach agreement with Shorten about the disclosure requirements.

Labor wants to toughen the terms of the disclosures MPs have to make and to put a December 1 deadline on them.

In a wide-ranging letter to Turnbull, Shorten sought a commitment the government would not use its numbers to make “partisan referrals” to the High Court; Labor also wanted a commitment that any ministers referred would stand aside from the ministry.

As well, he asked that Communications Minister Mitch Fifield, who knew of former Senate president Stephen Parry’s likely British citizenship before it was revealed and then confirmed, should be referred to the privileges committee.

Shorten rejected a Turnbull proposition that only non-controversial legislation be considered for the rest of this year. While the New England byelection is on, the government does not have a working majority in the lower house.

Turnbull has compromised on his original longer timetable, now saying December 7 is an appropriate deadline for the declarations. The lower house could then consider the declarations, take legal advice and “resume the following week to determine the matter of referrals”, he said in a letter to Shorten, composed on the VIP aircraft on the way to Vietnam.

Turnbull made it clear that the government would refer Labor members to the court.

“You appear to be asking me to not refer to the High Court Labor members who were UK citizens at the time of nomination but claim that lodging a renunciation declaration prior to that nomination protects them from disqualification,” he wrote.

“I cannot give you that assurance. The government will vote to refer any individual to the High Court if there are substantial grounds for believing they are in breach of the Constitution.”

He said the proposition that Fifield was in breach of privilege was “absurd”.

But despite earlier fiercely attacking Shorten for playing politics, Turnbull wrote that “nonetheless we are not far apart in terms of the nature of the disclosures sought. As you know in the course of our meeting when your anxiety about your dual citizen MPs became apparent, I offered to include a section of the disclosures for them to foreshadow the arguments they would put to the High Court if referred.”

The ConversationTurnbull said the government would consider Shorten’s revised wording of the disclosure overnight “and hope to resolve this tomorrow”.

https://www.podbean.com/media/player/k3zus-7afe23?from=site&skin=1&share=1&fonts=Helvetica&auto=0&download=0

Michelle Grattan, Professorial Fellow, University of Canberra

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

The High Court sticks to the letter of the law on the ‘citizenship seven’


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The High Court has ruled Scott Ludlam, Larissa Waters, Fiona Nash, Barnaby Joyce and Malcolm Roberts ineligible to have stood for parliament at the 2016 election.
AAP/Shutterstock/The Conversation, CC BY-ND

Gabrielle Appleby, UNSW

Today, the High Court announced the fate of the “citizenship seven”, with only senators Nick Xenophon and Matt Canavan surviving the legal ordeal. (Although the victory will be of limited relevance to Xenophon, who has in the meantime announced his resignation from the Senate to return to state politics in South Australia).

In the case, the High Court, acting as the Court of Disputed Returns, found that four of the six senators referred to it, and the only member of the House of Representatives (Barnaby Joyce), were disqualified under Section 44 of the Constitution. With the exception of Xenophon and Canavan, it was found that the MPs had never been validly elected.

The court has declared all five seats vacant. The senators will be replaced through a recount from the 2016 election. The House of Representative seat of New England will go to a byelection on December 2, which Joyce will contest.

In the meantime, Labor has refused to offer the Coalition a pair for Joyce’s absence, and the Coalition will maintain government on a knife-edge, with 74 seats plus the support of the crossbench, and, if necessary, the Speaker’s casting vote.

Leaving to one side the immediate political consequences of the decision, what did the High Court say about the interpretation of the restriction on foreign citizens running for parliament in Section 44? And is this the last time we will have to think about the matter?

The possible interpretations of Section 44

The crux of the constitutional case was the interpretation of Section 44 of the Constitution – specifically sub-section (i). That, relevantly, provides:

Any person who … is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

Importantly, if a person is found to be in breach of Section 44 at the time they nominated for election, they will never have been validly elected.

The High Court has held that if a person has never been validly elected, their parliamentary votes during the time they purported to sit would still be valid.

However, questions have been raised as to the validity of the decisions of ministers who were not validly elected. This means there are possibly further unresolved issues around the validity of decisions made by Joyce and Fiona Nash, who, unlike Canavan, did not step down from their ministerial posts while the High Court made its determination.

Another important point that the court has previously clarified is that foreign citizenship is determined according to the law of the foreign state concerned.

None of the interpretations that were urged by the parties on the High Court were strictly literal readings of the words “citizen of a foreign power”. All the parties accepted that there had to be some level of flexibility, allowing a person who was technically a foreign citizen to nonetheless be able to run for parliament.

The real argument in the case, then, was how much flexibility could be read into the section.

The reason all the parties accepted that there had to be some flexibility in the words, was that the High Court had held as much in a 1992 decision of Sykes v Cleary. Relevantly, this case did not concern people who were unaware of their foreign citizenship, and so did not directly address the main point that was in issue for the citizenship seven.

Rather, the case stood for the proposition that a person may be a dual citizen and not disqualified under Section 44 if that person has taken “reasonable steps to renounce” their foreign nationality.

In the course of his dissenting judgment, however, Justice Deane made a comment that the provision should really only apply to cases “where the relevant status, rights or privileges have been sought, accepted, asserted or acquiesced in by the person concerned”. In this way, Deane suggested there was a mental element to being in breach of the provision.

Many of the interpretations urged on the court drew on this idea. They ranged from requiring voluntary retention or acquisition of citizenship or requiring actual knowledge of foreign citizenship, to a test of whether a person was on sufficient “notice” to check their citizenship status, to a need for the person to have real allegiance to the foreign power.

The High Court opts for certainty

The High Court opted for an interpretation of the Constitution that promotes certainty for future cases.

In a (rare) unanimous decision, it adopted a reading that, as far as possible, adhered to the ordinary and natural meaning of the words. It accepted that the literal meaning would be adopted, with the only exceptions those that had been established in Sykes v Cleary.

The court refused to read further exceptions into the provision based on knowledge, notice or actual allegiance. It said to do so would import a worrying element of uncertainty into the provision, which would be “apt to undermine stable representative government”.

The application to the ‘citizenship seven’

Once the High Court resolved the interpretation of Section 44, it had to apply this interpretation to each of the citizenship seven. The only two MPs who they found not to have fallen foul of this strict reading were Xenophon and Canavan.

Xenophon had what was referred to as “British overseas citizenship”. This had been inherited through his father, who migrated from Cyprus while it was still a British territory. The court accepted that Xenophon, while technically a type of British “citizen”, held no right of entry or right of abode, and thus he did not have “citizenship” for the purposes of Section 44.

Canavan’s facts were more complicated. His alleged citizenship turned on a change in Italian citizenship law that occurred because of a decision of the Italian Constitutional Court when he was two. The court received expert evidence on the Italian legal position, and it ultimately accepted that they could not be satisfied that Canavan was, in fact, a citizen of Italy.

Each of the other senators and Joyce accepted that there were, technically, citizens of a foreign country at the time of their nomination. But they argued they had not known of this when they nominated for parliament. The court’s strict interpretation of Section 44 offered them no comfort.

Is this the end of the parliament’s Section 44 dramas?

In the immediate aftermath of the High Court’s decision, the government has announced it will refer the decision to the Joint Standing Committee on Electoral Matters to discuss, among other things, possible amendments to Section 44.

The issue, it would seem, is no longer the uncertainty around whether a person is or is not disqualified. Because of the strictness of the High Court’s interpretation, all potential parliamentarians are on notice to check thoroughly their citizenship status. Part of the referral to the committee is to investigate ways to “minimise the risk of candidates being in breach of Section 44”.

Rather, the more fundamental issue is now whether this is a desirable state of affairs given the large numbers of Australian citizens who are dual nationals, and who may not wish to renounce their citizenship to run for parliament. Thus, we as a nation stand to lose potential parliamentarians by excluding a pool of people that is likely to grow, not diminish.

Further, there is another question as to whether Section 44, when interpreted in this way, is apt to achieve its purpose. The High Court accepted that the purpose of Section 44 was to ensure that MPs do not have a split allegiance or loyalty.

The ConversationMany might argue that this purpose is still an important one. Even if that is accepted, it would seem that denial of eligibility to a dual national is a particularly blunt instrument to achieve it. On the one hand, it captures many people who do not even know they are dual citizens. On the other hand, the relatively easy step (in most cases) of renouncement means that those people who do have a split allegiance, but who want to run for parliament, have only to fulfil these formalities to do so.

Gabrielle Appleby, Associate Professor, UNSW Law School, UNSW

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

Newspoll 54-46 to Labor as Turnbull’s ratings slump. Qld Newspoll 52-48 to Labor


Adrian Beaumont, University of Melbourne

This week’s Newspoll, conducted 12-15 October from a sample of 1580, gave Labor a 54-46 lead, unchanged from three weeks ago. Primary votes were 37% Labor (down 1), 36% Coalition (steady), 10% Greens (up 1) and 9% One Nation (up 1). This is Turnbull’s 21st consecutive Newspoll loss as PM.

32% were satisfied with Turnbull’s performance (down 3) and 56% were dissatisfied (up 4), for a net approval of -24, down 7 points. Shorten’s net approval was -22, down two points. According to Kevin Bonham, this is Turnbull’s worst net approval since July, and Shorten’s worst since June.

By 63-23, voters favoured continuing renewable energy subsidies. However, 58% said they would pay nothing more for electricity or gas to implement a clean energy target. In a mid-September Essential poll, voters thought renewables better for electricity costs than fossil fuels by a 41-27 margin.

The general public would like more investment in renewables, and expects that renewable energy would not increase current power prices. However, the Coalition backbench is strongly opposed to renewable energy. By siding with the backbench, Turnbull is undermining his standing with the public.

Labor should ferociously attack the Coalition’s new energy policy that was announced today. In recent global elections, major left-wing parties have performed best when they have clearly distinguished themselves from conservatives. Where the left has become close to the conservatives, they have performed dismally, with Austria (see below) the latest example.

While Newspoll was good for Labor, Essential and YouGov below are not as good. All three polls this week agree that One Nation’s vote is up by 1-2 points.

Last week, The Australian published the July to September quarter Newspoll breakdowns by state, region, sex and age. Since the 2016 election, there has been an 8 point swing to Labor in Queensland, WA and outside the five capitals, but milder swings elsewhere.

SSM plebiscite turnout and polling

As at Friday 13 October, the ABS estimated it had received 10.8 million same sex marriage forms (67.5% of the electorate). The turnout is up from 62.5% on 6 October and 57.5% on 29 September. Weekly updates will be provided until 7 November, the final day for reception of SSM envelopes.

In this week’s YouGov poll, 67% of respondents had already voted, a very good match for the ABS. Among these, Yes led by 61-35. The remaining 33% favoured Yes 54-28, including 13% who were very likely to vote.

Wednesday morning update 18 October: In Newspoll, 65% said they have already voted and another 19% definitely will, implying an 84% turnout. Among those who have already voted, Yes led by 59-38, and by 49-37 among those who have not yet voted. For the whole sample, Yes led by 56-37 (57-34 three weeks ago). By 50-43, voters were opposed to the postal plebiscite (46-44 opposed three weeks ago).

Essential 52-48 to Labor

This week’s Essential, conducted over the last two weeks from a sample of 1850, gave Labor a 52-48 lead, a 2 point gain for the Coalition since last week. As Essential uses two week rolling averages, this implies that this week’s sample was close to 50-50. Primary votes were 37% Coalition (up 1), 36% Labor (down 2), 9% Greens (down 1), 8% One Nation (up 1) and 3% Nick Xenophon Team (up 1). Additional questions are based on one week’s sample.

Voters approved 65-15 of the Clean Energy Target, 74-10 of renewable energy subsidies and 62-18 of Labor’s 50% renewable energy target. These questions can be said to be “pony polls”, in that the voter is asked whether they approve of something that sounds nice, without considering cost or other issues.

61% (down 10 since February) thought the government was not doing enough to ensure affordable, reliable and clean energy, 15% thought it was doing enough (up 3) and 5% that it was doing too much (up 2).

42% thought Abbott should resign from Parliament (down 1 since April), 14% that he should be given a ministry (down 4), 16% remain a backbencher (up 2) and 9% challenge Turnbull (not asked in April).

In contrast to Newspoll, last week’s Essential gave Turnbull a net -1 rating, up from -5 in September. Shorten had a net -7 rating, up from -11.

Essential asked which people’s interests the major parties best represented, with expected results. Labor was seen as best for low-income working people (+33 vs the Liberals), people on welfare (+28) and students (+22). The Liberals were best for big business (+51) and high-income working people (+49).

By 55-36, voters thought it likely there would be a war between North Korea and the US. 33% said terrorism was the biggest concern for their personal safety, with 20% selecting a car accident and 13% nuclear warfare.

YouGov primary votes: 34% Coalition, 32% Labor, 11% Greens, 11% One Nation

YouGov continues to have Labor much lower than other polls. Primary votes in this week’s YouGov, conducted 12-16 October with a sample of 1067, were 34% Coalition (steady), 32% Labor (down 1), 11% Greens (steady), 11% One Nation (up 2), 3% Nick Xenophon Team (down 1) and 4% Christian parties (steady).

As usual, YouGov’s two party result, using respondent allocation, is skewed to the Coalition; they lead 51-49, though the previous election method would give Labor about a 52.5-47.5 lead according to the Poll Bludger.

56% thought Australia should have stricter gun laws, 34% thought they should remain about the same and just 7% thought they should be less strict. By 45-37, voters thought the Constitution should not be changed to allow dual citizens to run for office.

Qld Newspoll 52-48 to Labor

A Queensland Newspoll, conducted 10-12 October from a sample of 917, gave Labor a 52-48 lead, a one point gain for the LNP since the July to September Newspoll. Primary votes were 37% Labor (steady), 34% LNP (steady), 16% One Nation (up 1) and 8% Greens (steady). The next Queensland election must be held by early 2018.

42% were satisfied with Premier Annastacia Palaszczuk’s performance (up 1), and 45% were dissatisfied (down 1), for a net approval of -3. Opposition leader Tim Nicholls had a net approval of -11, up five points.

The narrowing in Labor’s two party lead is partly because Newspoll are now assuming that One Nation preferences flow to the LNP at a 60% rate, up from 55% previously. Unlike most state Newspolls, this poll was taken over three days last week, rather than a period of months.

Austria election: conservative/far-right coalition likely outcome

The Austrian election was held on 15 October. The conservative OVP won 31.5% of the vote (up 7.5 points since the 2013 election), the centre-left SPO 26.9% (steady) the far-right FPO 26.0% (up 5.5), the liberal NEOS 5.3% (up 0.3), the Greens breakaway party PILZ 4.4% and the Greens 3.8% (down 8.7). Turnout was 79.4%, up 4.5 points.

Seats are awarded roughly proportional to vote share with a 4% threshold. The OVP won 62 of the 183 seats (up 15), the SPO 52 (steady), the FPO 51 (up 11), the NEOS 10 (up 1) and PILZ 8. Thus the FPO holds the balance of power, and will probably join the OVP in a conservative/far-right coalition government. Although a few votes remain to be counted, the Greens appear to have missed the threshold, losing all 24 of their seats.

The centrist parties, the SPO and OVP, had been in coalition for the last two terms. According to this article in The Guardian, both parties became more right-wing in an attempt to appeal to FPO voters. From what we have seen in other countries, this strategy only helps the far-right.

In the December 2016 Austrian Presidential election, Greens candidate Alexander Van der Bellen defeated the far-right Norbert Hofer 53.8-46.2, showing that a left-wing candidate could win. However, the SPO did not embrace a left-wing agenda.

The ConversationThis election was an utter disaster for the Austrian Greens. The Greens won 12.4% in 2013. With the major parties becoming more right-wing, this should have been an opportunity for the Greens to increase their vote. However, the Greens split into the PILZ and Greens before the election, and only the PILZ made it back into Parliament.

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

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

Turnbull’s ratings fall in another bad Newspoll


Michelle Grattan, University of Canberra

The Coalition is trailing in its 21st consecutive Newspoll, with Labor maintaining its two-party lead of 54-46% and Malcolm Turnbull suffering a setback in his personal ratings.

As parliament resumes, with the energy issue preoccupying cabinet and the government nervously waiting on the High Court’s citizenship decisions, Turnbull’s lead over Bill Shorten as better prime minister narrowed to 41-33%, a margin of eight points, compared with 11 three weeks ago (42-31%).

Turnbull’s net satisfaction in the poll, published in Monday’s Australian, worsened from minus 17 points to minus 24 points. Shorten’s rating also worsened, from minus 20 to minus 22.

The run-up to the poll was marked by Tony Abbott’s controversial speech on climate change, delivered in London. It also saw further public uncertainty over the government’s yet-to-be-announced policy on energy, which cabinet is expected to consider on Monday.

Last week, the government effectively dumped any prospect of bringing in a clean energy target, which kills the chance of any bipartisanship. Opposition spokesman Mark Butler on Sunday told the ABC that if Turnbull walked away from a clean energy target “he won’t get the support of the Labor Party”.

When he challenged Abbott in 2015, Turnbull pointed to the Coalition being behind in 30 Newspolls in a row. His government is now more than two-thirds of the way to that benchmark.

Labor’s primary vote fell one point to 37%, while the Coalition was steady on 36%. One Nation rose one point to 9%; the Greens rose one point to 10%; and support for “others” fell from 9% to 8%.

The poll of 1,583 voters was done from Thursday to Sunday.

In parliament, the government this week will press its efforts to lower the company tax rate for larger enterprises. A deal with Nick Xenophon earlier this year saw the passage of the tax plan reductions for companies with a turnover of up to A$50 million annually. But the government has not been able to win support for the cuts proposed for big business. It is the cuts for the large companies which have the more significant economic impact.

Xenophon on Sunday night reiterated his Nick Xenophon Team (NXT) would not support the cuts. “We’ve ruled it out. Our position won’t change,” he said.

The ten-year tax plan was a centrepiece of the Coalition’s 2016 election policy.

The Business Council of Australia (BCA) has stepped up its lobbying for the cuts, with a booklet titled “Why Australia needs a competitive company tax rate”.

The BCA says Australia’s top company tax rate of 30% is the fifth-highest in the OECD and could soon be the third-highest. The average company rate across the OECD is 24%, while in Asia the average is 21%.

The UK has plans to cut its federal rate from 35% to 20% and the UK has legislated to go from 19% to 17%, the BCA points out.

BCA chief executive Jennifer Westacott said the “global action should be a wake up call for the Senate that Australia cannot afford to stand still, since every company tax reduction overseas is a de-facto tax increase on Australia”.

Westacott said parliament’s decision in March to restrict the tax cut to businesses with a turnover up to $50 million per year “leaves the job half done and our economy at risk as other countries become more competitive in the global race for investment.

“Those who attack the case for company tax cuts have no alternative credible plan to get investment growing strongly again,” she said.

The government is also battling to get the numbers to pass its higher education package. On this Xenophon said the NXT had serious reservations “but we’re still talking to the government”.

Xenophon is one of those MPs whose citizenship status is before the High Court, but he plans to leave federal politics even if the court decision goes in his favour (although he hasn’t said exactly when). He intends to lead his SA-BEST party at next year’s South Australian election.

The government has two ministers – Barnaby Joyce, the deputy prime minister, and Fiona Nash, the Nationals’ deputy – before the High Court, as well as former minister Matt Canavan, who quit the frontbench when the question of his constitutional eligibility for parliament arose.

The ConversationThe High Court is expected to make its decisions on the seven citizenship cases quickly.

Michelle Grattan, Professorial Fellow, University of Canberra

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

Major rebuff to Malcolm Turnbull as poll result hovers on knife edge


Michelle Grattan, University of Canberra

The federal election result is on a knife-edge, with the outcome between a majority Turnbull government and a hung parliament.

Malcolm Turnbull has been delivered a major rebuff and left potentially embattled, with bitter recriminations breaking out in conservative ranks. Even if the Coalition ends up with a majority, Turnbull will have an uphill struggle to manage a party that includes many who are his enemies.

There were immediate calls for a review of the superannuation policy that the government took to the election, which cut back concessions for high-income earners and deeply angered the Liberals’ base.

Liberal ministers blamed Labor’s Medicare scare campaign for turning voters against the Coalition.

Late in the night the swing against the government was 3.6%. The election has seen a high vote for small parties.

Turnbull waited until after midnight to address his supporters, declaring: “I can report that based on the advice I have from the party officials, we can have every confidence that we will form a Coalition majority government in the next parliament”. In his speech, he did not accept any blame for the bad result or suggest he would make any changes as a result.

Treasurer Scott Morrison said the Coalition was “on the cusp” of being able to claim the 76 seats needed to form majority government.

Opposition Leader Bill Shorten, who spoke to supporters around 11:30PM, said the outcome might not be known for days but whatever happened one thing was sure: “the Labor Party is back”. He said the Liberals had “lost their mandate”.

Labor’s Senate leader, Penny Wong, said there was “too much on the table to call it tonight”.

The ABC said that with more than 70% of votes counted, the Coalition was on track to win 72 seats, and Labor set to claim 66, with five crossbenchers including one Green, and seven seats in doubt.

An unanticipated big swing in Tasmania has cost the Liberals Bass, Braddon and Lyons. Labor has won Eden-Monaro (NSW), Macarthur (NSW), and the notional Liberal seat of Burt in Western Australia.

In Queensland, Assistant Innovation Minister Wyatt Roy appears to have lost Longman and the Liberals may lose Herbert. The Sydney seat of Lindsay is likely to fall, as is Macquarie. In the Northern Territory, Solomon is set to fall.

Nick Xenophon’s Nick Xenophon Team (NXT) candidate Rebekha Sharkie has taken Mayo from former minister Jamie Briggs, who had to quit the frontbench after an incident in a Hong Kong bar. Briggs tweeted “After a tough fight tonight hasn’t been our night”.

The Liberals could win the Victorian Labor seat of Chisholm. The Labor-Green contest in Batman is neck and neck.

Despite Turnbull calling the double dissolution to clear out small players in the Senate, the new Senate will contain a plethora of micro players. They will include three South Australian senators from NXT. Pauline Hanson has been elected to a Senate seat in Queensland. Broadcaster Derryn Hinch has claimed a Victorian Senate seat. Independent Jacqui Lambie has been returned in Tasmania.

In his speech Turnbull took on criticism, already being aired, that he should not have called a double dissolution, saying this had not been a political tactic but had been driven by the “need to restore the rule of law to the construction industry”.

Even if Turnbull wins majority government he may not have the numbers to get the industrial relations bills, which were the trigger for the double dissolution, through a joint sitting.

The backlash in conservative ranks erupted immediately.

Senator Cory Bernardi said in a tweet to Liberal pollster Mark Textor:

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Broadcaster Alan Jones clashed with one of Turnbull’s numbers men, senator James McGrath, on the Network Seven panel. “There were a lot of bed-wetters in the Liberal Party and you seemed to be the captain of the bed-wetters,” Jones said. McGrath hit back, saying Jones was “not a friend” of the Coalition.

Tony Abbott’s former chief-of-staff Peta Credlin and Attorney-General George Brandis had a spat on the Sky panel over the government’s superannuation changes. Credlin said the changes would not go through the Coalition partyroom in their present form; Brandis retorted she was not in the partyroom.

Tasmanian senator Eric Abetz said there had been strident criticism in emails to his office of the superannuation changes. “I for one will be advocating we reconsider aspects of it.”

Victorian Liberal president Michael Kroger said the party’s base was “furious” with the superannuation policy. “I certainly hope the partyroom would look at this issue.”

Conservative commentator Andrew Bolt called for Turnbull to quit. “You have been a disaster. You betrayed Tony Abbott and then led the party to humiliation, stripped of both values and honour. Resign.”

Morrison, asked if Abbott could have won the election, replied “highly unlikely”.

Roy and Peter Hendy, member for Eden-Monaro, were both heavily involved in the Turnbull coup.

Deputy Liberal leader Julie Bishop said “undoubtedly” the Medicare scare campaign had been an important factor in the result. She said a number of people on election day had raised Medicare with her at polling booths.

Finance Minister Mathias Cormann said Labor’s Medicare’s scare was more effective than the government had thought during the campaign. “No doubt the absolute lie Labor was running on Medicare was effective.”

Turnbull lashed out over the Medicare scare, saying “the Labor Party ran some of the most systematic, well-funded lies ever peddled in Australia”.

He said that “no doubt” the police would investigate last minute text messages to voters that said they came from Medicare.

Abetz said the “three amigos” in Bass, Braddon and Lyons had been swamped by the Medicare campaign.

Deputy Prime Minister Barnaby Joyce held New England from independent challenger Tony Windsor. Independent Cathy McGowan retained Indi. The Nationals have taken Murray from the Liberals, and headed off a challenge in Cowper from independent Rob Oakeshott.

The poll has seen the first Indigenous woman elected to the House of Representatives – Linda Burney in the NSW seat of Barton.

The pre-poll count continued to 2AM. There will be no more counting until Tuesday.

The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

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

Malcolm Turnbull sounded tone deaf to election message


Michelle Grattan, University of Canberra

Malcolm Turnbull’s speech to deflated supporters in the early hours of Sunday morning was extraordinarily lacking in self-awareness.

Turnbull had just brought his party a devastatingly bad election result. That’s true even if he manages to reach majority government, which remains far from clear despite his assertions. In the early hours of Sunday things got closer as more votes were counted. With 77.6% of the vote counted, the ABC tally had the Coalition and Labor on 67 seats each, five crossbenchers, and 11 seats in doubt.

Yet Turnbull showed not a scintilla of humility. He made no gesture of contrition, no promise that he had heard the message the people had delivered.

Instead he denounced Labor’s scare campaign – as if the Liberals themselves have not at times been masters of that dark art. And he made an unconvincing attempt to justify a double dissolution that has ended up producing a Senate as potentially difficult as the last one, with the added negative of including Pauline Hanson, so giving her a national platform.

There is now a bizarre parallel between Labor and the Liberals in turning triumph into disaster. Kevin Rudd won convincingly in 2007. He was then removed by his party and successor Julia Gillard came out of the subsequent election with a hung parliament. Tony Abbott had a strong win in 2013, was replaced – and now the Coalition will have a tiny majority or there will be another hung parliament, with the outcome depending on the crossbenchers.

Turnbull and his supporters can argue that if Abbott had still been leader the loss would have been greater, and that’s probably correct. But it is unlikely to be an argument that will do Turnbull much good in the days ahead when there won’t be a lot of Liberal love around.

Turnbull complains about Labor’s lies about Medicare’s future, but they were made more credible to the public because of the Coalition’s previous lies and actions. Did it think people would not remember Abbott’s 2013 promise of no cuts to health? Or the attempt in the 2014 budget to bring in a co-payment, unsuccessful though it was? Or the various subsequent moves for cuts and user pays measures?

Labor’s campaign might have been exaggerated and dishonest, but the Coalition itself had effectively given the ALP the building blocks for it.

Turnbull’s argument that he called a double dissolution not to change the nature of the Senate but because the lawlessness in the construction industry had to be confronted is facile. He did not even make the industrial relations legislation a central talking point in the campaign.

And in his speech he overlooked the point that even if he reaches majority government it is doubtful he would have the overall parliamentary numbers to get the bills through a joint sitting (although at this stage it is impossible to be definite about what the new senators might do).

In the wash-up, everything from the Coalition’s strategy for the past eight weeks – running almost entirely on a “plan” based on company tax cuts – to the mechanics of getting the case across, will be under internal criticism. It will be remembered that Turnbull’s pitch for leadership included his ability as an economic salesman. That, as it turned out, he over-hyped.

The Liberal conservatives will try to unravel policy. They started on election night with their bugbear – the superannuation changes. Assuming the Coalition survives in government, how will the ructions in the Liberals now play out for the same-sex marriage plebiscite?

Turnbull was looking for a mandate to allow him to be his own man. Instead of getting that, his government has been left struggling to survive.

If it does, the conservative forces will now take one of two views of him: as someone who must be forced to follow their will on core policies, or as someone who at a future date should be replaced. Or maybe they will adopt both views.

Turnbull’s enemies within his party have played this election craftily. Abbott was mostly quiet during the campaign, although in the final week he made clear that he thought the issues of budget repair, national security and border protection had been underdone. His former chief-of-staff Peta Credlin used her role as TV commentator to run an at times sharp critique of the Turnbull campaign. Now the conservatives will be full-throated.

Turnbull talks about the need for stability and unity. The Australian public is faced with instability. Whatever the result ends up being, there is no clear mandate and an extremely difficult Senate.

Turnbull, if he is still prime minister, would be confronted by the prospect of internal disunity plus a chaotic upper house that could likely make it nearly impossible to do much that is meaningful.

As happened when he was opposition leader, Turnbull is again in a situation where he didn’t read the danger signals. He thought he was more persuasive than Bill Shorten; he and his strategists (apparently) believed that whatever the national polls said, the marginal seats would stick. They said the election would be close but appeared confident it was in the bag.

Turnbull will pay a high price for his misjudgements, though it is unclear exactly how high.

The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

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

After messy night, Coalition more likely to form government – but Pauline Hanson is in the Senate


Adrian Beaumont, University of Melbourne

After counting into the early hours of Sunday morning, the Australian Electoral Commission (AEC) currently has Labor leading in 72 of the 150 lower house seats, with the Coalition ahead in 66.

There are seven not-yet-determined seats, where the AEC selected the wrong candidates to count on a two-party-preferred basis and now has to realign the count. The Coalition will win five of those seven seats, and Labor one, bringing the totals to 73 for Labor and 71 for the Coalition.

However, late counting, particularly of postal votes, favours the Coalition. The AEC lists five seats as close, and in three of those Labor is narrowly ahead. If the Coalition wins these three on late counting, the Coalition would lead the seat count 74-70. Other seats where Labor currently leads could also be won by the Coalition on late counting.

Current sitting crossbenchers Bob Katter, Andrew Wilkie, Cathy McGowan and Adam Bandt easily retained office, and will be joined by the Nick Xenophon Team’s (NXT) Rebekha Sharkie, who crushed Liberal Jamie Briggs in Mayo.

The NXT could win a second seat in Grey, one of the seven seats where the AEC needs to realign the count.

However, Tony Windsor and Rob Oakeshott both lost their bids to return. The Greens are unlikely to win a second seat.

Labor gained all three Tasmanian seats that were previously held by the Coalition, and also gained Solomon in the Northern Territory. Labor gained seven seats in New South Wales, at least two in Queensland and at least one in Western Australia.

However, the Liberals have a good chance of gaining Chisholm from Labor in Victoria, perhaps owing to the state government’s dispute with the Country Fire Authority.

The current primary votes are 41.8% for the Coalition (down 3.7% on 2013 election figures), 35.3% for Labor (up 1.9%), and 10% for the Greens (up 1.3%). “Others” have a collective 12.9% (up 6%). In South Australia, the NXT won 21% of the vote. The Coalition and Greens are likely to gain a little at the expense of Labor in late counting.

Kevin Bonham says the current two-party swing against the Coalition in the 138 classic Coalition vs Labor seats is 3.3%, which will probably moderate to 3% when counting is finalised. The Coalition is thus likely to win the two-party count by about 50.5%-49.5%, but will lose many more seats than it should have based on sophomore effects. Perhaps Labor’s marginal seats campaign was strong enough to overcome sophomore effects.

Sitting members usually have small personal votes that are not associated with their parties. When one party wins a seat from another party’s sitting member, they should get an additional boost at the next election, but this didn’t appear to happen last night.

The final pre-election polls were very close to the overall primary and two-party figures, but single seat polls were poor. Yet again, national polls were much better than seat polls.

Though it is unlikely Labor will form the next government, this is a much better result for Labor and Bill Shorten than was expected, particularly when Malcolm Turnbull was riding high in the polls after deposing Tony Abbott.

For Turnbull and the Coalition, this was a bad result. However, it is clear that Turnbull’s popularity dropped between February and April as he abandoned his more “liberal” approaches to climate change, same-sex marriage and other issues. Had Turnbull been more progressive on some issues, it is likely he would have been comfortably re-elected.

Reformed system produces even messier Senate

Even if the Coalition scrapes out a lower house majority, it will have fewer senators than it currently has.

One of the newly elected senators will be Pauline Hanson. Here is the Senate table, based on results at the ABC. There are 76 total senators.

Senate make-up at the time of writing.

The three definite “Others” are Pauline Hanson in Queensland, Derryn Hinch in Victoria and Jacqui Lambie in Tasmania. Most of the undecided seats will be contested by micro parties, with One Nation in the race for other seats.

The Coalition had 33 seats in the old Senate, so this will be reduced. This will make it difficult to pass the industrial relations bills that were the reason a double-dissolution election was called, even with a joint sitting.

Normally only six senators for each state would be up for election, but as this election was a double dissolution all 12 were up. The quota for election was reduced from 14.3% to 7.7%, and this has benefited smaller parties.

Under the old Senate system, it would have been possible to calculate Senate seats using the group voting tickets. As preferences are now up to voters, it is unlikely we will know the outcome of some of the undecided Senate seats until the AEC has data entered all votes and pressed the “button” on its computer system, probably by late July or early August.

The Conversation

Adrian Beaumont, PhD Student, School of Mathematics and Statistics, University of Melbourne

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