Clive Palmer’s case against the 2CP

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Clive Palmer, newly returning to federal politics at the head of his United Australia Party, has been pursuing a case in the High Court which could change the way election nights take place in this country. I thought I’d run through the main points of the case and the impact if he was successful.

Clive Palmer’s case is a challenge to the AEC’s practice of designating two candidates in each seat that they expect to make the final preference count, in order to expedite the counting of preferences on election night.

On election night, staff in polling places first count the primary votes for the House of Representatives – how many ‘1’ votes each candidate receives. They then conduct an indicative two-candidate-preferred (2CP) count. This count distributes preferences from every candidate between two candidates pre-identified as likely to make it to the final round of the count.

The AEC identifies which two candidates will be in this count before election night, but the information is secret until polls close.

If we didn’t have an indicative 2CP count, we would have a lot less information on election night. While many seats are clearly decided on primary votes (either one candidate has a majority, or is close enough), close races cannot be determined based on primary votes. Analysts would instead have to rely on assumptions about how preferences will flow, leading to greater uncertainty.

The full distribution of preferences needs to wait until all votes have been received, since candidates are excluded in a particular order. So the 2CP count is a shortcut, and it gives us the result in almost every case. Occasionally the AEC picks the wrong two candidates, in which case the AEC would start over with a new 2CP count the day after the election. Very rarely there are races where it’s still not clear who will make the top two until the full distribution of preferences, but these cases are rare (although they are becoming more common).

So 2CP means we have the result of almost every seat on election night, rather than having to wait weeks, as was the case in Maine’s recent use of preferential voting. It’s fairly crucial to getting a clear and quick result under our voting system, and it works well.

Clive Palmer’s case doesn’t appear to be objecting to the general principle of an indicative 2CP count, but he does object to when this information is published. He is asking for the results of the 2CP count (and thus the information about which candidates the AEC has chosen) to not be released until 9:30pm AEST, which is the time when the final polling booths close on the Cocos (Keeling) Islands. I admit I had never really thought about the fact that a handful of voters would still be voting there and on Christmas Island after polls close in Western Australia at 8pm AEST.

I won’t go into the detail about his precise legal arguments – that’s not my area of expertise. But in brief, it appears part of his argument is that it violates the clause of the constitution which requires that federal MPs are “directly chosen by the people” to have public servants publishing official opinion about which candidates are more likely to win before polls close. There also appears to be an argument that it breaks the law, not just the constitution.

It seems like a pretty obscure problem. I doubt there are many voters in Western Australia (or even further west) who would be discouraged from voting because they see that the AEC has designated two candidates in a seat as the likeliest to win, particularly since they are more likely to hear about primary vote figures at this early stage. Clive Palmer’s objection appears to be partly grounded in the fact that the AEC chose Labor, not himself, to be in the indicative 2CP count in Fairfax in 2013, which turned out to be wrong. But I can’t see that decision having cost Palmer any Senate votes in Western Australia.

Palmer’s lawyers appear to be distinguishing between objective vote counts, which are already released before voting has closed in other seats, and an expression of official opinion about who might come in the top two. He is not arguing for a ban on election results being published at all until 9:30 (which used to be the practice in Canada).

So what would happen if he won?

It shouldn’t slow down the counting. When polls close at 6pm on the east coast, electoral staff would still be able to do the primary and 2CP count. But it would prevent the AEC from publishing any 2CP data for three-and-a-half hours after polls have closed for the vast majority of electorates.

So you would expect election night to be entirely about primary votes (presumably with the help of 2CP predictions based on expected preference flows) until 9:30, then there would be a sudden flood of real 2CP figures, at which point you’d expect a bunch of seats to be called.

If the election is a landslide, you’d expect a result to be called without 2CP counts but in close races I’d expect that we would hold back on calling a result as long as we were relying on predicted preference flows rather than real votes, which could delay the calling of a close election.

It seems unlikely that anything will change, but it will be interesting to see how the Court rules.

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20 COMMENTS

  1. Just so I am clear:
    Isn’t it the case for the House of Reps that the winning candidate isn’t decided until the full preference counting is done and a candidate (might not be one of the 2CP or 2PP candidates) obtains a clear majority of votes during this preference counting?
    And though I don’t support any of the Parties (or I should say political corporations), I do agree with Clive Palmer in this case, in that the people of Australia must be the only influence that determines which candidate gets elected to represent them. Any other influence must be prevented.
    That is one of the reasons corporate donations to political campaigns should be stopped. Big money and big media expenditure creates an extremely unfair playing field for the like of Independents like me, that have very limited personal funds to advertise. Everyone should be limited to the same small budget to use, them use it wisely and get out personally to convince their electorate. Big money has corrupted our political system just like in the US.

  2. If awareness of the mainland result prior to polls close in Cocos Keeling Island, forms one of the issues before the High Court, then seeking to limit the actions of AEC staff is a hollow effort. Any scruitineer has the results from their involvement in scruitineering atthe booth. These are provided to the parties state division and campaign HQ progressively during the night ASAP! They then appear via the party reps on the ABC broadcast progressively often ahead of the AEC updates.

  3. The notional TCP candidates are usually chosen at least as early as rehearsal night. When I participated in rehearsal night, I always had to sign an affidavit that I would not reveal who they were.

    Generally, the ROs don’t know until they open a sealed envelope at 6PM. At a NSW level an RO told me that SHE decided for her polling place. This was hard to believe.

    In most cases, the AEC decision is based purely on who the TCP candidates were at the previous General Election.

    I was never told by the people in the National Tally Room, either at the rehearsal or on the night, why this secrecy existed. I always thought it was to avoid perceived political bias.

    Wentworth was an exception to this and I think they may have “made a political decision” in this case.

    In past elections, going back to the days when TCPs became more common (mid-1990s say), the discovery of a “wrong call” might cause the Commissioner to issue an instruction to “START AGAIN” This happened in Indi in 2013, when it became very clear that the two lead candidates were IND and LIB. This happened at about 21:20 on the night, by which time of night, Cathy’s team were pretty freaked out, because they had been reporting IND:LIB

    Warringah 2016 was a case where the error was not discovered until the FDOP was completed. I was very surprised to discover that the AEC then had to do an immediate TCP recount to replace the TPP that had been done at the booths on the night. I scrutineered for this – it was a VERY interesting experience … it took a full two days because all the packaged up ballots had to be unpacked and sorted into primaries and the TCP done in the usual way – that is to say, it was calculated booth by booth and the numbers added up. There were clearly errors in the way the TPP had been done originally, there were ballot papers from one booth mixed up with those of another and there were also errors committed in the recount that we scrutineers picked up.

    Thus, a notional TCP or TPP on the night is a fraught business

  4. And here we are still voting with bloody pencils.. because the voter is exactly that stupid.
    The idea that the AEC can *choose* the 2pp lead candidates BEFORE the vote is closed smacks of the corruption that has beset the voting processes.
    The voting above the line shenanigans, preference ‘deals’, 3 weeks of pre-poll which is incredibly oppressive to minors parties and Independents.. all this adds up to heavily reinforce the polarisation of the 2pp system.. followed up with the 2pp indicative count on election night and the voting public being duped into thinking that there are only two teams in the election!
    I’m sick of it.. it is broken, wrong, corrupt and one of the large reasons our country is going to shit at such rate of knots.
    Idiots supported by political parties because they are good at head-nodding or voting as told along party lines.. this relies entirely on a 2pp system.
    True *Democracy* works to give equal voice to the people.. but not when random elements can get elected and muck up the plans of the elite.
    I suppose we should be grateful the elite give us pencils and not crayons at the voting booth.

  5. Andrew, there are good reason why the AEC uses pencils. They are much easier to store and don’t run dry, unlike pens.

    It’s pretty silly to say it’s the 2CP indicative count which creates the polarisation. The polarisation exists, the 2CP just gives us a report on who is winning.

  6. It would be reasonable to delay the 2PP count for at least a few days after the election so that the votes of minor parties can be given their proper due in the reporting of the results. The way the votes are reported now, minor candidate votes are virtually ignored on election night and the results and swings are reported as a two horse race.

  7. If you want to use a biro on the ballot paper you can always take your own as I do. Anyone who leaves home without a biro and a notebook is not prepared for future needs where writing is required like voting at elections or exchanging detail following a car accident or a shopping list written up in the coffee shop before visiting the IGA etc.

  8. Geoff Lambert – I agree, we voters can wait until its all counted, including the absentee and overseas votes including the ADF. We still have a caretaker government so no worries and the defence and civil service carries on regardless.

  9. Like Annabelle Crabb (ABC TV) I to think election night is good viewing on ABC TV. Better than the rubbish dating, cooking and dancing shows on the other “junk” stations. Have I just invented a trendy phrase “junk” stations.

  10. The case may hinge on whether or not absent voters are still able to vote in elections where the local time has passed 6pm and potentially whether or not there are sufficient numbers of to effect the result (which could mean that there is a greater argument for holding off until WA close of polls than Cocos (Keeling) Islands and Christmas Island). My understanding of the Australian practice is all polling booths close local time, regardless of the time in the rest of the electorate (I am fairly sure this is the practice in Bean, Sydney, Farrer, Lingiari and in the Senate for the ACT, NSW and the NT and even seems to be the case in WA with the Eucola timezone).

    Holding off on the 2CP count announcements for seats in timezones further west than AEST applies seems reasonable and easily kept secret (given only absent polling places, which are not counted immediately, will have closed). On the other hand the 2CP counts in Bean and (when Lord Howe Island is not on ADST, as it only goes forward half an hour in for DST) Sydney would come out earlier than the East Coast, especially given they have small booth sizes.

    The 2CP choice can be easily kept from the scrutineers until the primaries are counted. This could even held get more accurate decisions over who gets in the 2CP count or even help cause a 3CP count on the night, if the 2CP decision is delayed.

    Disclaimer: I am not a lawyer.

  11. Lots of interesting ideas here on the process – but the case seems to rest from Clive’s point of view on the possible impact of this piece of information on WA voters. If that’s right and I am not a lawyer and may have been bamboozled, there is a question of materiality. By the time the information is released in the Eastern states there will be two hours to go for voting in WA. by that stage in my experience after allowing for prepoll votes, postal votes & those who have already voted the proportion of people left to vote would be no more than 10% and probably much less based on my experience in handing out how to votes on the graveyard shift up to close of poll. Most People voting at that stage are unlikely to have had the time to sit down & watch TV and then rush out to vote.

  12. On issue of pencils AEC uses indelible pencils

    Indelible pencils.can. Of be rubbed out.

    Ben is correct a ball point pen has a shel life of a. It more than 12 months from date of manufacture.

    Prior to ballpoint era indellible pencils had a fairly widespread use. However Ball points have superseded them in all other applicstions. This means that electoral commissions have to place orders for these pencils years ahead of their purchase. This is not a great problem logidstics of running an election has now been outsourced. And all though their are multiple logistics suppliers there are only two manufacturers of indellible pencils. The pencil manufacturers have to manufacture and import brforeb

  13. Having worked as an election official, the Officer in Charge of the polling booth opens “the envelope” once all the booth-closing activities are completed, and the first-preference count is under way. So in general, NOBODY in the booth would know what;s in the envelope until 1810-1830. First preference ballots are all sorted, counted and recorded on the official sheet before the indicative two-candidate count begins. By this time, the competent party scrutineers will have a good idea of how the preference flows are going, both to and from their candidate – often a better idea than the counters who are focused only on “formal” and where the 1 is. They can then phone their observations and impressions through to their party office while the 2CP distribution is still occurring (in parallel with the start of senate sorting). If Clive’s concerns are real, the parties would broadcast the impressions of outcomes to the people who are still handing out how-to-vote cards further west, before the 2CP count is done in each booth.

    [ The less-competent scrutineers sit in the corner and occasionally glance up to see if the officials are still counting, then hover near the telephone when the OIC calls in the results. They get no assistance from the officials if they can’t even be bothered watching the numbers getting written on the record sheet before the phone call is made. ]

  14. I wonder if Mr Palmer has cottoned on to the fact that the AEC also classifies some seats as “safe”, which can only mean “safe” for the incumbent party, and has done for over forty years, back into the days when it was still the Australian Electoral Office: see https://www.aec.gov.au/media/files/national-seat-status-2019-final.pdf. This, one might have thought, would give him the vapours even more than the choice of candidates to be included in the two-candidate preferred count.

    It’s also worth noting that section 274(2A) of the Commonwealth Electoral Act 1918 requires the 2CP count to be of preferences which “will best provide an indication of the candidate most likely to be elected for the Division”. This does NOT necessarily require the count to be to the two candidates deemed most likely to be there at the end of the distribution of preferences. Take the 2018 Wentworth by-election as a good example: nobody seriously believed that the ALP could win the seat, and therefore a Liberal v. Labor count would have added nothing to existing near certain knowledge. On the other hand, there was a clearly a chance that the Liberal could be beaten by an independent, so doing a Liberal v Independent count had the prospect of adding to knowledge on the night, even if a final Liberal v. Labor count was objectively more probable.

    Personally, I think it’s fanciful in the extreme to suggest that there are voters in WA, Christmas Island or Cocos (Keeling) Islands who would be waiting to hear about the AEC’s 2CP choice in some other seats before deciding for whom to vote.

  15. The AEC and other electoral commissions are extremely conservative when it comes to declaring seats, so this is all about election night “calls”. I can’t think of any seats where Antony Green, Kevin Bonham etc. didn’t identify the potential for someone unexpected in the count that went on to win. Preference snowballs do happen (eg Prahran in both 2014 and 2018 having the Greens win from 3rd) but if things look really uncertain, Antony Green et al. simply won’t call the seat.

    Every election there’s this weird fascination with the way that results come out that thankfully goes away. There were so many calls for electronic voting and even first past the post after the 2016 election, just because it wasn’t a clear result on election night. Our election system is one of the best in the world and needing to wait a bit for a result in very close elections is worth it.

    Michael Maley is right about the effect of this particular call. Theoretically there could be a landslide so big in the eastern states that the election gets called before WA is finished voting, but unlike other countries I don’t think huge lines at close of polls are super common and the bandwagon effect would only affect a miniscule handful of voters.

  16. Thank you – an interesting post about an issue that obviously comes up in Canada too.

    In Canada the “problem” is partly addressed by staggering voting hours across the nation so that most results are available at approximately the same time on election night: https://www.elections.ca/content.aspx?section=vot&dir=bkg&document=ec90815&lang=e

    About 5 years ago a provision of the Canada Elections Act that was designed to prevent the “premature transmission” of any election results until polls were closed nationwide was repealed: https://www.canlii.org/en/ca/laws/stat/sc-2000-c-9/110932/sc-2000-c-9.html#Premature_Transmission__419723

    However, before it was repealed (in a 5-4 decision) the Supreme Court upheld section 329 as constitutional partly on the basis that it ensures “informational equality among voters”. The court also contended that even if the publication of early results would have no impact at all on those who have not yet voted “the information imbalance alone creates a perception of unfairness in the electoral system”: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2348/index.do

  17. All parties, candidates and votes should be treated equally. The TCP system does not do this. The Federal and State voting systems should allow all voters to use electronic voting which would provide a far quicker count than the paper based system. Yes there are challenges – but from reading the comments paper ballots also have problems and there seems to me a lot more people that can interfere with votes and lose them etc. To overcome outage problems more money should be provided to electoral commissions so they can have robust systems.

  18. People are also overlooking the fact that Christmas Island and the Cocos Islands are not in WA, at least as far as the Federal election is concerned. They are both in the Division of Lingiari in the NT So as far as the Senate is concerned, big whoop. Two senators to be chosen, and with a 33.3% quota they will always be one Labour and one Country Liberal Party (the fourth virtually unknown party in the coalition). In the House of Reps, if Lingiari were exceptionally tight between the ALP and CLP it might, just might, have an effect. However Lingiari is on a margin of 8%. A handful of voters on two oceanic flyspecks aren’t going to make a difference then are they? And if you followed this to it’s logical conclusion, no 2CP result until the overseas voting centre in Honolulu closes. Not happening. Clive is wasting yet more money.

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