How Clive Palmer could challenge the act designed to stop him getting $30 billion



Dan Peled/AAP

Murray Wesson, University of Western Australia; Ian Murray, University of Western Australia; John Southalan, University of Dundee; Julie Falck, University of Western Australia; Natalie Brown, University of Western Australia, and Sarah Murray, University of Western Australia

The West Australian government recently took the extraordinary step of passing legislation to try to stop mining magnate Clive Palmer from collecting about $30 billion in damages from the state.

As Premier Mark McGowan argues, such a hefty bill risks bankrupting WA.

While the so-called “Mineralogy Act” passed state parliament in just two days, it is far from straightforward.

It raises a host of questions that are likely to be tested in courts in the months – and possibly years – ahead.

What is this dispute about?

Palmer is no stranger to litigation. Recently, he has also been fighting the WA government over COVID border closures.

But this particular dispute dates back to 2012 and concerns an iron ore project in the Pilbara.




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Palmer has argued his development proposals for the Balmoral South iron ore project were unlawfully refused by the previous state government, under former premier Colin Barnett. He is reportedly seeking about $30 billion in damages.

The Mineralogy Act

In mid-August, the state government passed the Mineralogy Act to terminate the damages claims against it.

WA Premier Mark McGowan
The McGowan government says the legislation is needed to protect the ‘interests’ of WA.
Richard Wainwright/AAP

Before this, Palmer and his companies, including Mineralogy, had been pursuing these claims through arbitration – a dispute resolution process that happens outside the courts. This arbitration was about whether the WA government properly dealt with proposals Palmer’s companies made under a 2002 agreement.

Last week, after the act passed, Palmer declared he would sue McGowan and Attorney-General John Quigley for “contempt of the High Court of Australia”.

This is likely to be one of many salvos in a protracted legal battle.

Does Palmer have a claim for contempt of court?

Contempt of court means acts that interfere with or undermine the authority, performance or dignity of the courts.

The Mineralogy Act seeks to terminate the arbitration for the reported $30 billion claims.

It also invalidates existing arbitral awards, which are decisions determining parties’ rights and liabilities. Given that arbitrations are not court proceedings, these aspects of the act do not establish contempt of court.

However, where a party does not comply with an arbitration award, the award can be registered with the courts and then enforced as if it were a court judgment.

Dumper truck in the Pilbara.
This dispute is over an iron ore project in the Pilbara.
Kim Christian/AAP

Before the act was passed, Palmer had registered two arbitration awards in the Queensland Supreme Court. The act seeks to remove the basis for these claims. There is precedent that this may constitute contempt of the Queensland court (although contrary to Palmer’s assertions, not the High Court).

However, even if Palmer establishes contempt of the Queensland court, that would not invalidate the Mineralogy Act. Any penalty imposed by the court would also be modest in comparison to the $30 billion damages claim.

Can the WA parliament pass a law that takes away rights without compensation?

Apart from the contempt issue, Palmer may argue the WA parliament cannot pass a law that takes away individual rights without compensation.

In this regard, state laws that take away rights are unusual, but not new.




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The High Court and Queensland and WA supreme courts have previously treated state laws that remove rights of particular persons without just compensation as valid.

While the WA parliament has not previously amended a state agreement with a mining company without consent, this was found to be valid in Queensland. This approach is consistent with the principle that the present parliament can generally amend existing laws.

As a political, rather than legal matter, politicians have found that laws targeting mining rights can be hazardous.

Whether public opinion will ultimately support the Mineralogy Act remains to be seen. But the current popularity of the WA government over its handling of COVID-19 and the potential popularity of “saving” the state’s finances will undoubtedly influence perspectives.

Are parts of the Mineralogy Act unconstitutional?

Palmer may also argue parts of the Mineralogy Act are unconstitutional.

Parliaments can pass laws about matters involved in ongoing legal disputes. They can even target particular cases or parties. But based on Chapter III of the Constitution, they can’t compromise the court’s integrity by telling a court how to decide. This constitutional line is often tricky to draw.

Clive Palmer at a press conference on the Gold Coast.
Clive Palmer says he will sue the WA government over the Mineralogy Act.
Dan Paled/AAP

The act does not entirely remove the court’s power to examine the legality of government actions. But it does try to stop courts from giving remedies that are unfavourable to WA.

So, it doesn’t quite tell courts how to decide, but it does restrict what they can do, which is getting into uncertain constitutional territory.

The WA government has described the Mineralogy Act as “unprecedented,” containing a number of measures that are “not usual”.

but Mineralogy and Mr Palmer are not normal and these measures are needed to best protect the interests of the state and the community.

However, even necessary laws must be constitutional.

Does Palmer really stand to gain $30 billion in damages anyway?

Palmer has said the widely reported $30 billion price tag is “bullshit”. But Quigley tabled details in parliament last month showing the total damages sought by Palmer and his companies in relation to the iron ore project was at least $27.75 billion.

Palmer’s damages claims focus on the loss of opportunities to develop and sell the project to Chinese state-owned enterprises.

But core principles for assessing damages for breach of contract – which in this case is a 2002 agreement between Mineralogy and the state government – may stand in the way.




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The state’s improper delay in approving the project must have caused the loss – but it is not clear this is the case. There may have been other reasons for the losses, including the post-GFC mining slump.

Also, the value of what Palmer has lost needs to reflect the likelihood the project would have occurred without the delay, and so is likely to be much lower than $30 billion.

Palmer must also have taken reasonable steps to minimise his loss. This might mean following the standard industry practice of amending the development proposals to meet state government conditions, noting the Mineralogy Act still leaves this possibility open.

What happens now?

Palmer has a potential claim that the passage of the Mineralogy Act constitutes contempt of the Queensland Supreme Court. It is also possible parts of the act, such as those that restrict the remedies available to courts, are unconstitutional.




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However, even if Palmer succeeds in these claims, it is not clear how much he will actually gain financially, or if his claim is really worth $30 billion.

The Mineralogy Act is so unusual, it would be foolish to predict outcomes to these complex legal questions. Over the coming months, we will start seeing answers to these questions as Palmer brings lawsuits and proceedings work their way through the courts.

The answers will provide profound insights into the decision-making powers of states.The Conversation

Murray Wesson, Senior Lecturer in Law, University of Western Australia; Ian Murray, Associate Professor, University of Western Australia; John Southalan, Global Faculty (Centre of Energy, Petroleum and Mineral Law & Policy), University of Dundee; Julie Falck, Lecturer, University of Western Australia; Natalie Brown, Lecturer in Administrative and Property Law; PhD in WA iron ore State agreements, University of Western Australia, and Sarah Murray, Professor specialising in public law and less-adversarial justice, University of Western Australia

This article is republished from The Conversation under a Creative Commons license. Read the original article.

View from The Hill: COVID response helped NT Labor, encouraging Palaszczuk and McGowan to stick to their scripts


Michelle Grattan, University of Canberra

Both those pressing for states to re-open borders, and defenders of their resistance to doing so, will look for arguments to support their cases in Saturday’s Northern Territory election results.

Chief Minister Michael Gunner has taken a tough line on the NT border. With the NT COVID-free, people can’t go to the territory from COVID “hotspots” without quarantining at their own expense.

Labor’s loss of seats – while retaining government whether in majority or minority – is seen by the “open borders” urgers as carrying lessons about putting all (or most) eggs in a keep-safe basket.

It’s accepted that if he hadn’t had COVID to run on, Gunner would have been much worse off, given the NT’s pre-COVID economic problems.

But if he had taken a softer approach to the border, and there’d been a major COVID outbreak, he would have worn serious blame. With indigenous people – who, like the elderly, form a high risk group for COVID – forming about 30% of the NT community, a big outbreak could have been catastrophic.

And while the NT economy remains in poor shape, especially the tourist sector, the state is open internally (they were all hugging at those party functions on Saturday night).

Queensland premier Annastacia Palaszczuk and Western Australian Premier Mark McGowan are unlikely to see the NT result as sending a signal their border policies will be a political handicap.

That doesn’t mean Palaszczuk and McGowan can afford to rely on their performances on COVID alone when they go to the polls in October and early next year respectively. Their voters will expect more. But as things stand, restrictive border policies are popular and the NT hasn’t said otherwise.

Scott Morrison’s relative powerlessness on the border issue was illustrated at Friday’s national cabinet.

Progress is being made on specific problems, such as the needs of agriculture in border areas, and health matters.

But on the basic question of opening or closing, the premiers remained firm. Only NSW is Morrison’s ally in this battle.

While commentators see the war over borders as a sign of the federation’s dysfunction, voters in particular states read it differently.

Morrison announced at his Friday news conference national cabinet had asked the Australian Health Protection Principal Committee (AHPPC), including state and federal health advisers, to define a “hotspot” and consider movement restrictions relating to these spots.

He hopes such a definition would put pressure on premiers and chief ministers to limit border closures.

It is apparently trodden and tricky territory. Acting Chief Medical Officer Paul Kelly told the news conference: “It is a piece of work we have had an attempt at before. And we’ll continue to try to get consensus there in AHPPC about a definition of a hotspot.”

It remains to be seen whether this committee can agree. And if it does, whether that would make any difference to what leaders do.

But when parliament resumes on Monday, it won’t be borders that will be the front of mind issue – it will be aged care.

With a majority of COVID deaths being people who lived in aged care facilities, and an absolute shocker of a performance from Aged Care Minister Richard Colbeck on Friday, the opposition has a lot of ammunition.

Colbeck, appearing before the Senate COVID committee, was asked two simple questions. How many deaths had there been of residents of facilities, and how many COVID cases were there among residents at present. He could neither remember, nor find the numbers immediately. This was appalling preparation.

Forced to defend Colbeck, Morrison said, “on occasion, I can’t call every figure to mind”.

But the PM knew such a lapse has an impact beyond its strictly objective importance.

An example from long ago makes the point. Late in the Hawke government, then treasurer John Kerin at a news conference was unable to explain an economic term. It was hardly a hanging offence. But it damaged Kerin, and the government.

With the Colbeck clip shown over and over, it quickly becomes a symbol of both the minister’s failure, and the failure of the government to do enough to protect aged care residents.

The odds are short that Morrison will move Colbeck from aged care when he reshuffles his ministry following the departure of Mathias Cormann late this year.

But Colbeck is only one player in the aged care crisis, and not the most important. He’s the junior minister in the health portfolio. The Health Minister Greg Hunt, the prime minister, the government regulator of the industry (the Aged Care Quality and Safety Commission), and advisers to government share responsibility. And it is important we don’t forget the private providers: did some of them not heed warnings?

Ultimate political responsibility belongs to the federal government.

Faced with questions about the Victorian aged care disaster, Morrison has tried to unload some of the blame onto the state government by saying the states have responsibility for public health.

That’s true and the Victorian government must be accountable, both for unleashing community transmission with the quarantine breach and for inadequacies in its health reaction. But the fact the federal government is responsible for the sector means Morrison, Colbeck and Hunt need to both admit the Commonwealth’s mistakes and also lay out a convincing roadmap for the future.

Some actions are being undertaken, and there is the complication that the report of the royal commission into aged care is still months away. But the issue is urgent.

The Morrison government is always reluctant to be seen to be pushed, and Friday’s national cabinet provided an interesting insight into this.

When the royal commission less than a fortnight ago suggested, based on evidence from Monash University geriatrician Joseph Ibrahim, that the government should set up an advisory unit including people with expertise in aged care, infection control and emergency responses, Morrison was publicity dismissive.

But the statement from Friday’s national cabinet said: “A time-limited AHPPC Aged Care Advisory Group will be established to support the national public health emergency response to COVID-19 in aged care. The Advisory Group will bring together expertise about the aged care sector, infection control, emergency preparedness and public health response.”

Take a bow, Professor Ibrahim and the royal commission.The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

WA border challenge: why states, not courts, need to make the hard calls during health emergencies



Richard Wainwright/AAP

Lorraine Finlay, Murdoch University

In recent days, both sides involved in Clive Palmer’s legal challenge against the Western Australia border closure have sought to highlight the importance of what is at stake.

WA Premier Mark McGowan has warned if the challenge is successful and the border re-opens “then potentially people will die”. Meanwhile, Palmer has emphasised that immediately re-opening the border

is crucial for the survival of the domestic economy and for the whole of Australia.

With Queensland announcing another border closure to Sydney residents today, the WA case could be pivotal.

It will set an important precedent and ultimately determine whether, and to what extent, state governments can close their borders to protect their residents against future outbreaks.

The legal challenge in WA

The WA government closed its border to everybody other than “exempt travellers” from April 5 to limit the spread of COVID-19. Palmer was refused an exemption to enter WA in May and responded by filing a constitutional challenge to the laws authorising the border closure.

The challenge focuses primarily on section 92 of the Constitution, which provides that

trade, commerce and intercourse among the states … shall be absolutely free.

The High Court has previously suggested this allows for restrictions on movement and travel that are reasonably necessary for legitimate state purposes.

The key constitutional question here is whether the current restrictions are proportionate and appropriately tailored to address the identified risk to public health.




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In particular, the Federal Court is being asked this week to identify precisely what risks the COVID-19 pandemic poses to public health in Australia, and the extent to which border closures might mitigate these risks.

The Federal Court will not make a final decision about the constitutional validity of the border closures. Instead, it will determine the relevant facts in the case based on evidence presented by public health experts.

These facts will be critical to deciding the ultimate constitutional question.

What happens next?

The Federal Court hearing is only step one. Once these factual questions have been decided, the case returns to the High Court, which will determine the constitutional questions.

While the parties and courts have all acknowledged the importance of expediting this matter, the earliest this case could be heard by the High Court would be September. This means a final decision on whether the border closures are valid could still be weeks away.

Another important practical consideration is how the WA government may react if it loses the constitutional challenge. McGowan has already said

if the High Court rules that the borders have to come down that is the law of the land.

But any High Court decision will be based on the reasonableness of the current restrictions, and the court tends to limit its decisions to the particular facts before it. The judges are unlikely to speculate about whether alternative border closure restrictions may be constitutionally valid.

As such, one option for WA if it loses may be to remove the existing restrictions, but immediately replace them with amended restrictions that are adapted to the court’s ruling.

A win for Palmer in the High Court may not therefore necessarily result in the WA borders immediately re-opening.

McGowan has defended WA’s ‘very straightforward system’ of border closures, even as neighbouring states have seen virus cases decline.
Richard Wainwright/AAP

What will the High Court decide?

It is never possible to definitively predict the outcome of a High Court case. This is particularly true in the present case, given the specific constitutional issue at hand has not previously been directly considered by the court.

However, in cases involving questions of reasonableness and the balancing of public policy objectives, courts tend to err on the side of allowing governments a significant degree of discretion.




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For this reason, the WA government has a strong constitutional case, provided the Federal Court finds the expert evidence supports border closures being justified from a public health perspective.

This highlights the significance of the current Federal Court hearing. It would be extremely controversial for the High Court to invalidate border closures imposed by a state government if the expert evidence established a public health justification for the measures.

Why governments need discretion in cases like this

Indeed, this highlights a more fundamental question about who is best placed to make these types of decisions in a democratic society.

There is no objectively right or wrong answer to the question of whether state borders should be shut in these circumstances, or for how long. It is instead a judgement call that has to be made on the best information available at the time, and that requires the decision maker to balance a range of different public policy factors.

An elected government is best placed to make judgement calls of this nature. It can adapt its response as circumstances change and take into account community sentiment (which is important to ensure compliance).

A government will also be subject to a range of different accountability measures, including, ultimately, judgement by the people at an election.




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Judicial decision-making is very different. It is necessarily based on the particular facts of a single case before the courts and is not adaptive to circumstances. The courts also do not need to consider the practical challenges of implementing a specific policy or regulation, and are not subject to direct democratic accountability.

These can be virtues when the courts are engaged in legal decision-making. They also demonstrate why the courts should not be involved in making decisions of a more political nature.

While there is a legitimate role for judicial scrutiny, the judgement calls required in a public health emergency are more appropriately left to the executive and parliamentary branches of government.

This democratic mandate granted to elected officials should be respected by the courts when considering the current challenge to the WA border closures, particularly given the importance of what is at stake.The Conversation

Lorraine Finlay, Lecturer in Law, Murdoch University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Can I visit my boyfriend or my parents? Go fishing or bushwalking? Coronavirus rules in Western Australia



Shutterstock/Inc.

Michael Lund, The Conversation and Wes Mountain, The Conversation

Editor’s note: The following is current as at April 3, 2020. Things are changing quickly so best to keep an eye on the latest information from WA Health, as well as the federal government.

This article adds to the information we’ve published for New South Wales, Queensland and Victoria and on South Australia and the ACT. We will bring you more information on other states as we collect it.

According to Google Trends, some of the top coronavirus searches nationally in the past few days include “can I visit my parents coronavirus Australia?”, “can I go fishing during coronavirus?” and “can I go for a drive during coronavirus Australia?”

“Can I visit my boyfriend during coronavirus Australia?” was also a common one.




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We asked legal experts in Western Australia – Natalie Skead and Michael Douglas from the University of Western Australia – to help shed some light on what the new rules might mean for residents of their state.

Can I visit my parents?


Wes Mountain/The Conversation, CC BY-ND

It depends.

If you’re a child with parents who live apart, and you move between each of your parent’s homes, then you can keep doing that.

Aside from that, you can’t organise a prohibited gathering, which includes more than two people in “a single undivided indoor space” like a room or even a patio, unless you maintain 4m² distancing.

So, yes, you can visit your parents if you each stay sufficiently far from one another, but you can’t hug mum! Sunday family dinner is off the cards for now.

There is an exception “for the purposes of providing care or assistance … to a vulnerable person or providing emergency assistance”. The terms “care” and “vulnerable person” are not defined. If one of your parents has a disability or a health condition, and you want to look after them, then visiting them is okay.

It also depends on where your parents live. The parents of one of the authors (Michael) live down south, while he lives in Perth. It was his dad’s birthday on Wednesday. The intra-state travel restrictions meant he could not visit the elder Douglas. They all had a FaceTime birthday dinner instead.

Birthdays during pandemic.
Douglii

The Prohibition on Regional Travel Directions say you cannot enter another “region” in WA unless certain exceptions apply. “Regions” are defined in the Planning Act.

But there’s an exemption for “compassionate grounds” — like one of your parents is seriously ill, or an immediate family member has died. Visiting a parent on their birthday is not enough.

If your parents live in certain parts of the Kimberley, or a remote Aboriginal community, visiting may require quarantine under restrictions made by both the state and federal governments, if it is permissible at all under the Prohibited Regional Travel Directions. The situation there is not good and by the time you read this, visiting may be prohibited.

If your parents are interstate and you are in WA, then the answer is more complicated. Seek legal advice.




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Can I go fishing or bushwalking?


Wes Mountain/The Conversation, CC BY-ND

The Preventative Restriction of Activities Directions do not specifically address fishing or bushwalking. But doing either with more than two people would be a prohibited gathering. That means you can only walk in the bush with the people who you are currently living with or one other person you don’t live with, but even then stay appropriately socially distanced.

Fishing is a bit murkier. Western Australia appears to have taken some guidance from a since deleted Facebook post, by the Queensland Minister for Transport and Main Roads, Mark Bailey, who attempted to clarify the boating and fishing rules as permitting boaters to fish for food to travel locally in their community.

The latest advice from the WA government is the social distancing rules for gatherings of no more than two in public places apply on the land and the sea, meaning they apply to both boat- and land-based fishing.

So, you can fish for food with one friend, or those you live with. If you’re going out on a boat, though, it will need to be a biggish one to accommodate the 1.5m/4m² distancing rule.

It also depends on where you propose to fish or bushwalk. You can’t do either outside your “region”.




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Can I go for a drive?


Wes Mountain/The Conversation, CC BY-ND

The Australian government’s Department of Health says “all Australians are required to stay home unless it is absolutely necessary to go outside”.

This means you can only go for a drive to buy essential food, to attend to health needs (visiting a doctor or a pharmacy), or on compassionate grounds (for example, to care for a vulnerable person). So you should not go for a leisurely drive just to get out the house.

You can’t drive outside your region.




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Can I visit my boyfriend/girlfriend?


Wes Mountain/The Conversation, CC BY-ND

Under the directions, a gathering of two people indoors is not permitted “where there is not at least 4m² of space for each person at the gathering”.

This means you can visit your girlfriend or boyfriend provided the room you’re in is big enough, but you cannot touch them!

One might argue spending time with the girlfriend or boyfriend falls under the “care for vulnerable person” exception. That’s a weak argument.

An important exception applies where the “gathering” is with a member of the same household, meaning two or more persons who usually reside at the same place, irrespective of whether those persons are related to each other.

So if you immediately move in to your partner’s place, and then stay there, you may be okay to touch them, legally speaking. But you may be putting each other at unnecessary risk.

If your partner lives in another “region”, then you cannot visit them (even to move in).




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Can I go for a walk around my neighbourhood or sit on a park bench?


Wes Mountain/The Conversation, CC BY-ND

A walk around your neighbourhood — or on the beach — to get some fresh air or catch up with a friend, is not currently covered by state restrictions provided you limit it to a walk with only one friend or those with whom you live.

That said, given your walk would flout the federal Department of Health requirement we all “stay home unless it is absolutely necessary to go outside”, we suggest you think twice before heading out.

Sitting outdoors on a park bench or other public space with members of your household or one other person observing the social distancing rules, is not prohibited by WA’s restrictions against public gatherings. But, again, the federal government cautions strongly against hanging out in public, so you probably shouldn’t.




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The Conversation


Michael Lund, Commissioning Editor, The Conversation and Wes Mountain, Multimedia Editor, The Conversation

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Byelection guide: what’s at stake on Super Saturday


Rob Manwaring, Flinders University; Chris Salisbury, The University of Queensland; Ian Cook, and Michael Lester, University of Tasmania

Prime Minister Malcolm Turnbull and Opposition Leader Bill Shorten have been criss-crossing the country for weeks to spruik their parties’ candidates in Saturday’s all-important byelections – a key test for both the Liberals and Labor ahead of the next federal election.

Here’s what you need to know about the five electorates up for grabs and, with a federal election likely in the first half of 2019, what’s at stake for Turnbull and Shorten.


https://cdn.theconversation.com/infographics/287/78461d5072b825744d7c283b9901731f603a5d45/site/index.html


Longman

Chris Salisbury, Research Associate, University of Queensland

Longman’s very marginal status, held by Labor’s Susan Lamb by a slim 0.8% prior to her High Court-enforced resignation, makes this race the most tightly contested on Saturday.

Seasoned observers expect this to go the way of most byelection contests – largely distanced from broader federal concerns. Local issues are at play, dominated by arguments over funding for the Caboolture hospital in the electorate north of Brisbane, as well as for local education and employment support services.

Yet, the race is also being touted by some as a judgement on the major parties’ signature economic policies, and significantly on the performances of both party leaders. Labor has campaigned hard on the merits of the Coalition’s proposed company tax cuts. The Liberals, meanwhile, have fanned fears among retirees about Labor’s proposed investment savings changes.

Longman is a typical marginal seat in the outer suburban fringe, home to what a dozen years ago would have been called “Howard’s battlers”. The electorate provides a platform for the major parties to road-test policy differentiation and campaign messages on “average voters” ahead of the next federal election.




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It’s also fertile ground for the growing distrust of mainstream politics. One Nation’s Pauline Hanson has been prominent in the electorate, attempting to capitalise on negative voter sentiment toward the major parties. Her party even enlisted former Labor leader Mark Latham’s support, voicing robocalls to local residents attacking Shorten.

Lamb is attempting to be re-elected to the seat she won unexpectedly from the LNP’s Wyatt Roy in 2016. She benefits from recognition as the incumbent and has the strong backing of her party leader. Shorten made a beeline for Longman ahead of the announcement of the byelection date to spruik his candidate.

LNP’s Trevor Ruthenburg also enjoys recognition of sorts as a previous state MP for nearby Kallangur. However, he might have spurned some conservative Longman voters with fresh revelations of an incorrectly claimed military service medal in his Queensland parliament biography.

Among the minor party candidates, One Nation’s Matthew Stephen will also need to overcome questions regarding his business dealings to build on his party’s 9.4% primary vote in the 2016 election.

Labor’s concerted campaigning has Lamb a slight favourite to be returned. However, a Coalition win might convince Turnbull to call an early election. This then raises the question: could a poor result for Labor put enough pressure on Shorten to prompt the party to change leaders to better combat the PM’s standing?


Braddon

Michael Lester, PhD candidate, University of Tasmania

For an election that won’t change the status quo in parliament, the Braddon byelection is getting a great deal of attention.

Both Turnbull and Shorten have made multiple visits to campaign for their candidates, with support also coming from of a host of their cabinet and shadow cabinet colleagues.

Braddon is a notoriously fickle electorate, having changed hands four times since 1996, and the margins are always tight. This election is no different. All the polls indicate it is a close race.

In 2016, Labor’s Justine Keay won the seat with a 2.2% lead over then-sitting Liberal member Brett Whiteley. She was later forced to resign after her UK citizenship was revealed. Both candidates are standing again, but neither is considered to have strong personal followings.

Polls in the first week of July showed the gap between the parties has narrowed. This means the result will likely come down to the preferences of independents and minor parties, particularly the Greens’ Jarrod Edwards, the Shooters, Fishers and Farmers Party candidate Brett Neal and independent Craig Garland. All three are likely to favour Labor.




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The differences between the campaign styles and tactics of the two major parties are striking.

The Liberals have used incumbency at both the state and federal level to frame their campaign around their economic records and budget infrastructure spending, holding photo opportunities around a series of project announcements.

Labor, meanwhile, is using the campaign to road-test a swag of policies and messages. Key among them are wage stagnation, the loss of penalty rates, the “scourge of labour hire companies”, the bad behaviour of banks and the Liberals’ support for corporate tax cuts.

Shorten took most by surprise by also promising an AU$25 million grant to support a Tasmanian AFL team at a time when the Aussie game is in crisis in one of its foundation states. However, Labor seems to be getting better traction with promises to restore funding for essential services like health care and education.

The real impact of the Braddon byelection is likely to be on the political future of the two party leaders, the timing of the next federal election and the choice of the policies they choose to run on.


Mayo

Rob Manwaring, Senior Lecturer, Politics and Public Policy, Flinders University

The campaign in Mayo is symptomatic of a wider problem that has beset Liberals in South Australia – a failure to lock in so-called blue-ribbon safe seats.

Mayo is now a straight two-way fight between the incumbent Centre Alliance’s Rebekah Sharkie and Liberal Georgina Downer. Downer’s success or failure could well be a strong signifier of the strength of Malcolm Turnbull’s government.

Polling has Sharkie on track to hold onto the seat, despite her citizenship problems triggering the byelection. A late-June Reachtel poll had Sharkie leading Downer by 62% to 38% in two-candidate voting.

Sharkie’s surge in the polls is striking, given that a large part of her win over then-Liberal Jamie Briggs in 2013 seemed to rest on the personal unpopularity of Briggs.




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Yet, as has been proven in state-level races in South Australia before, voters in notionally safe “non-Labor” seats are often reluctant to give up strong local independents. Despite its disappointing showing in the recent state election, the Xenophon team retains deep residual support in South Australia.

The Mayo campaign is an intriguing confluence of local and national issues. Sharkie is pushing hard on a range of local issues, and her support to have the Great Australian Bight listed for World Heritage status to safeguard it from oil drilling also targets a perceived weakness of Downer’s – environment issues.

Downer, seeking to secure her family dynasty, is playing to different strengths – especially her close network with the Liberal hierarchy. (She is the daughter of former foreign minister Alexander.) Since announcing her candidacy, Downer has had notable visits from Turnbull and others. She boasts influence unavailable to her rivals, evidenced by her securing of federal funding for a new aquatic centre in Mount Barker.

Strikingly, immigration has become a new issue in the campaign. Downer’s comments about immigration may stoke local fears that the Inverbrackie site will be re-opened for mainland asylum seeker detentions.


Perth and Fremantle

Ian Cook, Senior Lecturer of Australian Politics, Murdoch University

Labor will win both races being contested in Western Australia in Saturday’s byelections. That’s not a brave prediction. The Liberals aren’t running candidates.

Some analysts believe it was the wrong decision by the Liberals, given that a minimal campaigning effort wouldn’t have cost that much and it’s unclear how voters will react when the Liberals do put up candidates in the federal election.

But the decision actually makes a lot of sense. Labor has held both seats – Perth and Fremantle – for much of their existence. (The electorates were created in 1901.) Labor even held on in Fremantle in the 1975 election, which was the last time it lost Perth.

On top of this, the WA Liberals had been swept from government last year as a result of a 20% swing against them across the state. And there were no signs of the federal Liberals doing much to change anything.

So, while Perth’s 3.3% margin looks close, the Liberals chose not to run a candidate there. Likewise in Fremantle, which is even less competitive, with a margin of 7.5%. The decision not only saves the Liberals money, it won’t expose their weak support in WA.




Read more:
Liberal rebel Dean Smith to fight party decision not to contest Perth byelection


Some Liberals may have regretted the move after the party won the byelection for the state seat of Darling Range last month, but Labor got a lot wrong in that campaign.

The Liberals’ decision not to run in Perth and Fremantle has brought the Greens more into the spotlight. With no other seats to talk about and no major party competition to drown them out, the Greens should be able to do something meaningful in these byelections.

Perth and Fremantle are exactly the type of inner metropolitan seat the Greens should be favoured to win, but their candidates have never gained more than 18% of first-preference voting in previous contests in the electorates. And nothing looks likely to change this time around.

The ConversationIf Greens candidates can’t put themselves in a position to win Perth and Fremantle in these byelections and demonstrate they are to be a meaningful political force, then they likely never will.

Rob Manwaring, Senior Lecturer, Politics and Public Policy, Flinders University; Chris Salisbury, Research Associate, The University of Queensland; Ian Cook, Senior Lecturer of Australian Politics, and Michael Lester, PhD candidate, University of Tasmania

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

Leaders seek underdog status in byelection battle to be top dog


Michelle Grattan, University of Canberra

Malcolm Turnbull and Bill Shorten have entered the final week of the high-stakes Longman and Braddon byelections both publicly cautious about their prospects.

Latest polls show close numbers in the two seats, held by the ALP by narrow margins. These are the crucial contests in the five Super Saturday playoffs. Labor has a clear run in the two Western Australian seats; Mayo (South Australia) is between crossbencher Rebekha Sharkie and the Liberals’ candidate Georgina Downer.




Read more:
Grattan on Friday: Disillusioned voters find it easy to embrace a crossbencher like Rebekha Sharkie


In Longman (Queensland), a ReachTEL poll commissioned by the Courier Mail has the Liberal National Party leading Labor 51-49%. In Braddon (Tasmania), where Labor has become increasingly confident, a poll commissioned by the forestry industry and also done by ReachTEL shows Labor on 52% of the two-party vote, although its primary vote is only 34.3%.

But polling in single seats has to be treated with particular caution.

The outcomes in Longman and Braddon are vital for Shorten, who would face very serious leadership instability if he lost both seats, and a rough patch if the ALP were defeated in one. Labor frontbencher Anthony Albanese has been positioning ahead of Super Saturday.

Shorten, speaking on Sunday in Longman at Susan Lamb’s formal campaign launch, said: “We are the underdogs”.

“The bookmakers have the other mob as the favourites. Now of course the LNP and the One Nation political party have teamed up again and are swapping preferences just to try to knock us off”.

In a strong attack on Pauline Hanson, Shorten said she didn’t like being called out for “pretending to be a friend of the battlers when all she wants to do is to get back on the plane to Canberra and vote with the big end of town”.

The size of the One Nation vote, where it comes from, and how its preferences split in practice will be critical in the Longman result.

One Nation has been targeting Shorten fiercely in its advertising. For example, he is depicted with a sheep and the message, “This year Bill Shorten and Susan Lamb voted with The Greens 100% of the time”.

Anti-Labor corflute in the federal electorate of Longman in Queensland.
Supplied

Asked on Sunday whether he was encouraged by the polling in Longman, Turnbull said that on all the evidence the byelections appeared to be “very close” but “Labor should be streets ahead”.

“By-elections historically always swing away from the government. Particularly if it’s an opposition seat. The last time a government won a seat in a by-election from the opposition was about 100 years ago and there’s a reason for that.”




Read more:
VIDEO: Michelle Grattan on the Mayo byelection and crossbenchers in the parliament


He said people in Longman and Braddon, as well as in Mayo, had “the opportunity to say what they think about Bill Shorten’s plan for higher taxes and more expensive electricity and his plan for weaker borders”.

Turnbull was in the Queensland seat of Herbert ahead of a visit to Tennant Creek in the Northern Territory.

On Saturday, campaigning in Longman with LNP candidate Trevor Ruthenberg , Turnbull said “Trev’s got the odds against him but he’s a great candidate. He’s a straight shooter. He’s as honest as he is big!”. He could “absolutely” win, although it was “tough”.

The ConversationBoth sides are throwing around the dollars in multiple promises in Longman and Braddon. Labor’s promises could only be made good if the ALP won the general election next year.

Michelle Grattan, Professorial Fellow, University of Canberra

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

As Super Saturday nears, Labor gains poll lead in Braddon, but trails in Longman, while UK Tories slump



File 20180722 142432 1g5vwny.jpg?ixlib=rb 1.1
The Longman byelection is so tightly contested it has drawn many senior politicians to campaign. Here Labor candidate Susan Lamb is flanked by Shadow Minister for Skills, TAFE and Apprenticeships Doug Cameron, and Deputy Leader of the Opposition Tanya Plibersek.
AAP/Glenn Hunt

Adrian Beaumont, University of Melbourne

Five federal byelections will be held on July 28 – four in Labor-held seats and one held by the Centre Alliance. In the Western Australian seats of Perth and Fremantle, the Liberals are not contesting, and Labor is expected to easily retain. In the South Australian seat of Mayo, the Centre Alliance’s Rebekha Sharkie has a large poll lead over the Liberals’ Georgina Downer.

The contested seats are thus the Tasmanian seat of Braddon (Labor by 2.2%) and the Queensland seat of Longman (Labor by 0.8%). Polls close at 6pm Melbourne time in Braddon and Longman, 6:30pm in Mayo and 8pm in Perth and Fremantle.

In Braddon, the Labor candidate, Susan Keay, held the seat until she was forced out through the citizenship saga. The Liberal candidate, Brett Whiteley, was the member until the 2016 election, so there will be little advantage for Keay from being well-known. A similar situation applies in Longman.

As noted in the article below, seat polls are unreliable, and there could be large errors in either direction.




Read more:
Poll wrap: Labor and LNP tied in Longman, Sharkie’s massive lead in Mayo, but can we trust seat polls?


At the 2016 election, One Nation recommended preferences to Labor in Longman, and Labor won 56.5% of their preferences. At the byelection, One Nation is recommending preferences to the LNP — this could be crucial.

On July 17, The Courier Mail revealed that Longman LNP candidate Trevor Ruthenberg had a lesser military medal than he had claimed on his parliamentary website while a state MP. On July 19, the same paper revealed Ruthenberg had also claimed the higher medal on his personal website. Ruthenberg has apologised and said it was an honest mistake.

A Longman ReachTEL poll for The Courier Mail, conducted July 18 from an unknown sample, gave the LNP a 51-49 lead over Labor, unchanged since late June. Primary votes were 37.9% LNP (Ruthenberg) (up 2.4%), 35.8% Labor (Susan Lamb) (down 3.2%), 13.9% One Nation (down 0.8%), 4.2% Greens (up 0.9%), 4.3% for all Others and 3.9% undecided.

Labor’s weaker primary vote is being compensated by a stronger flow of respondent allocated preferences. 41% thought Ruthenberg’s medal error an honest mistake, 33% a deliberate error and 27% a careless mistake.

In Braddon, a ReachTEL poll for the Australian Forestry Products Association, conducted July 19 from an unknown sample, gave Labor a 52-48 lead over the Liberals, a 2.5-point gain for Labor since analyst Kevin Bonham’s estimate of a July 6 ReachTEL poll for the left-wing Australia Institute, and a six-point gain for Labor since a Sky News ReachTEL poll in late May.

Primary votes were 40.7% Liberal (Whiteley), 34.3% Labor (Keay), 8.9% for independent Craig Garland, 6.7% for the Greens and 4.6% undecided. 22% of undecided voters were leaning to Labor and just 11% to the Liberals. 67% of all non-major party preferences were going to Labor.

Garland supports a moratorium on salmon fishing expansion, and is recommending preferences to Labor ahead of the Liberals.

In the Australia Institute ReachTEL, 37% thought the company tax rate for businesses with over $50 million in turnover should be reduced, 37% kept the same and 20% increased. The question is better than previous Australian Institute questions on this topic, which gave examples of large businesses – banks, mining companies and supermarkets.

A total of 68% supported penalty rates for workers in the hospitality and retail industries, and just 23% were opposed.

I believe Labor’s biggest problem in Braddon is the March 2018 Tasmanian election, in which the Liberals won easily.




Read more:
ReachTEL polls: Labor trailing in Longman and Braddon, and how Senate changes helped the Coalition


Update Monday morning: Galaxy has conducted polls of Braddon, Longman and Mayo for the News Ltd tabloids. In Longman, the LNP led by 51-49 from primary votes of Labor 37%, LNP 34% and One Nation 18%. In Braddon, there was a 50-50 tie. In Mayo, Sharkie led Downer by an emphatic 59-41. If Anthony Albanese were Labor leader, Labor would lead by 53-47 in both Longman and Braddon.

National Newspoll: 51-49 to Labor

Last week’s Newspoll, conducted July 12-15 from a sample of 1,640, gave Labor a 51-49 lead, unchanged on three weeks ago. Primary votes were 38% Coalition (down one), 36% Labor (down one), 10% Greens (up one) and 7% One Nation (up one).

This was Malcolm Turnbull’s 36th successive Newspoll loss, six more than Tony Abbott, and three more than the previous record for a government. The total vote for left- vs right-of-centre parties was unchanged at 46-45 to the left.

41% were satisfied with Turnbull’s performance (down one), and 49% were dissatisfied (up one), for a net approval of -8, the first decline in Turnbull’s net approval since early April. Bill Shorten’s net approval was up one point to -24. Turnbull led Shorten by 48-29 as better PM (46-31 previously); this was Turnbull’s biggest lead since May 2016.

By 72-23, voters approved of the reduction in the number of immigrants to below 165,000 in the last year, down from an annual cap of 190,000.

By 40-34, voters thought Turnbull and the Coalition better at maintaining energy supply and keeping power prices lower than Shorten and Labor, a reversal of a 39-37 Labor lead in late May. 64% thought the government’s priority should be to keep energy prices down, 24% meet targets to cut greenhouse gas emissions and 9% prevent blackouts.

By 58-32, Australians were dissatisfied with Donald Trump’s performance as US president, with One Nation voters giving Trump his best ratings (63-29 satisfied). This poll was taken before the controversial Helsinki summit.

The better PM statistic virtually always favours the incumbent PM given voting intentions, and it means very little at elections. The final pre-election 2016 Newspoll gave Turnbull a 48-31 better PM lead, yet the Coalition barely clung to a majority. The PM’s net approval correlates much better with voting intentions.

Essential: 51-49 to Labor

Last week’s Essential poll, conducted July 12-15 from a sample of 1,014, gave Labor a 51-49 lead, a one-point gain for the Coalition since three weeks ago. Primary votes were 40% Coalition (steady), 36% Labor (down one), 10% Greens (down one) and 6% One Nation (steady). Essential is still using 2016 preference flows, and this poll would probably be 50-50 by Newspoll’s new method.

There appears to have been a shift towards support for coal power. By 40-38, voters agreed that the government should fund up to $5 billion to build new coal-fired plants or extend the life of existing ones. By 47-24, they agreed that coal-fired power is cheaper than power generated by renewables.

38% (up one since April) thought the government should prioritise renewable energy, 16% (up three) thought they should prioritise coal and 34% (down one) thought both should be treated equally.

By 73-20, voters supported banning plastic bags in supermarkets. By 57-36, voters thought it would change their behaviour as a consumer. 46% both agreed and disagreed that the plastic bag ban was simply an attempt by supermarkets to reduce costs.

UK Conservatives lose support to UKIP after soft Brexit

On July 6, the UK cabinet agreed on a soft Brexit. On July 8-9, hard Brexit cabinet ministers David Davis and Boris Johnson resigned in protest. Despite the anger of hard Brexiteers, I believe PM Theresa May is likely to survive, as explained on my personal website.

Hard Brexiteers do not have the numbers to oust her within the parliamentary Conservatives, and there is little common ground between the Conservative right and Labour, so parliamentary cooperation between them will only happen occasionally.

In polls conducted since the resignations of Davis and Johnson, some of the Conservative vote has gone to the UK Independence Party (UKIP), giving Labour a 4-5 point lead in the last three polls. The Conservatives had adopted UKIP’s rhetoric on Brexit, but now that they have settled on a soft Brexit, natural UKIP support is returning.

In brief: Mexican election detailed results

The ConversationAt the Mexican election held on July 1, the left-wing presidential candidate, Andrés Manuel López Obrador, won a landslide with 53.2% of the vote. Left-wing parties won a majority in both chambers of the Mexican legislature. Details are on my personal website.

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

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