In the last few days of the current electoral campaign the Liberal Party has circulated a pamphlet and published advertisements claiming that a vote for Labor is a vote for the Greens. An example can be seen here. Labor has responded angrily, with national secretary Karl Bitar reporting the ad to the Australian Electoral Commission, alleging that it breaches the Electoral Act, and is “a confidence trick designed to misrepresent the ballot paper, which in fact does not do what the advertisement claims.”
The pamphlet claims “Under the Labor-Green preference deal, if you vote for Labor, your preferences will automatically go to the Greens”.
Such claims are not in fact illegal. Federal electoral law only intervenes when claims are made that mislead an elector in relation to the formal process of casting their vote – for instance telling people the election is on a different day, telling them that a certain kind of vote that is informal will be formal, telling them to vote for a candidate who isn’t on the ballot, telling them it is illegal to vote Democrat instead of absolutely pointless, and so on. Telling lies about a party’s policy, telling lies about how a party would like its voters to distribute preferences, and telling lies about what happens in the preference cut-up, even handing out fake how-to-vote cards for another party – all that is fair game in Australian electoral law. It is up to the parties to debate these issues and hold each other to account when misleading claims are made in that arena. Then the voter can decide whether to punish any party for its truthlessness and shonky tactics.
But while they’re not illegal, the Liberal claims translate a grain of truth into an implication that is categorically and monumentally false. The clear implication of the pamphlet is that any vote for Labor will automatically be transferred to the Greens at some stage of the count as a result of a Labor-Green preference deal. The deal and the consequent preference allocations are real enough, but the claim that preferences “will automatically go to the Greens” is rubbish for the following two main reasons:
The voter is free to choose their own order of preferences if they do not like that recommended by their party. In the Senate this entails voting below the line, but in Tasmania that is hardly onerous.
In Tasmania, a Labor voter’s preferences will never “automatically go” anywhere in the House of Reps (indeed they will definitely not go anywhere at all), and they are unlikely to go anywhere beyond the Labor ticket in the Senate.
To explore 2) in detail, in every House of Reps seat in Tasmania Labor will finish either first or second on primaries, and remain either first or second as other candidates are eliminated. Labor candidates will never be eliminated themselves; they will either win on preferences or (less likely) lose. Their preferences will never be distributed and they could have put their HTV cards in any order they like and it wouldn’t make a jot of difference.
In the Senate, for Labor preferences to be distributed at all requires all Labor senators to be either elected or eliminated while both Green and Liberal senators remain in the race. But there are only two scenarios under which this can realistically happen, and both are unlikely:
Labor wins three seats and has votes to spare with the Greens short of their first quota and the Liberals short of their third. This requires Labor to poll three quotas (42.86% of the Senate vote) in their own right, but they haven’t got three quotas at a half-Senate election since 1984. They came reasonably close in 1990, 1993 and 1998 but those were elections where the combined Green/Democrat vote was far lower than the Green vote now. Even if Labor could poll three quotas, there’s no reason to believe the Greens would be below one – indeed given that the Greens polled 21.6% in the State election, it’s inconceivable that more than a third of those voters will vote for someone else in the Senate.
Labor wins two seats and is eliminated in third place in the race for the final seat. This requires the difference between the Labor vote and the Greens vote, after the addition of votes from minor groups to the latter, to be less than one quota (14.29%), but it also requires the Liberal vote, plus minor feeders, to be less than three quotas (42.86%) – but not so much less that they get eliminated in third instead of the Greens or Labor. From this it follows that the Greens, plus feeders, must get at least a quota and a half (21.4%). That requires the Green vote to be only trivially less than what they got in the State election, and it’s possible they might just scrape that, but it also requires the Labor vote to come down. So for instance, if the Greens plus feeders have 22%, Labor can’t get more than 36.3. And that’s 3.7 points less than they got last time, which is unlikely.
The gap between Labor and the Greens in the Senate has never been near as low as one quota. Since the Greens started getting double-digit totals in the Senate following the effective demise of the Dems as a force, it’s been 1.61 quotas in 2004, 1.44 quotas in 2007 (when Latham knocked the stuffing out of Labor’s vote) and 1.54 quotas in 2010. There is no reason it would come down to just over a quota federally (SOL, the Dems and the Secular Party won’t be good for much between them). Even the Tasmanian House of Assembly result – where Labor were whipped by an enormous swing related largely to state issues – the gap was still equivalent to 1.06 Senate quotas.
The Labor-Green preference deal is not really about the Tassie Senate. It has more value for the Greens in mainland Senate seats where the Greens will be short of their quotas and may need Labor’s preferences to ward off some snowballing micro-party from getting in as happened with Family First in one state and nearly others in 2004. It is also useful in the ACT, where if the Liberals fall short of their quota (33%) Labor preferences could then elect a Green. In Tasmania, it’s unlikely it will help the Greens in any way.
So this is a beat-up by the Liberals, but I believe it has been a successful one, because Labor’s response in taking the matter to the Electoral Commission is an error. It makes Labor look clueless about electoral law and it allows the Liberals to use the Electoral Commission’s response to paint Labor as sooky and give the impression there is nothing wrong with the pamphlet. In fact there is a very great deal wrong with it, but none of that has anything to do with electoral law.
Electoral law does not seek to determine what in election campaigns is true and what is false. You can put out pamphlets falsely stating that our new Prime Minister is a communist satanic lesbian if you like (oh yes, there are people out there who believe this.) She might then sue you for defamation, and people like me might become more likely to vote for her if we think it is actually true, but what you’re doing is not an electoral offence. Parties should counter scare campaigns like this simply by attacking them on their substance and exposing them as crap, and not by beating up bogus claims of electoral illegality and running off to the Electoral Commission to be told, as hundreds of others have before, that the scarer is doing nothing that electoral law considers to be wrong.
I consider the result to be a propaganda victory for the Liberal Party, although the propaganda they are using to achieve it is pure nonsense. If they do now go on to save Guy Barnett’s imperilled seat by a whisker, this could have a little bit to do with it.
Dr Bonham’s definitive poll analysis:
