Why not elect a Cassowary as Premier?

Queensland voters didn't go quite as far as this cartoon recommended. But they did create quite a thorny thicket for their politicians to play in.

While most of the New Zealand media's attention has been directed at the omnishambles that is Tony Abbott's (questioned) reign as Australian Prime Minister, there's been something quite interesting happening in Queensland.

You may recall that back in 2012 the governing Labour Party got nearly wiped out at the polls, losing some 44 seats and being reduced to a mere 7 MLA's. Then, after three years of a Liberal-National Party dictatorship masquerading as an elected government, the voters bit back at the end of January. Not only did the premier lose his own seat, but the opposition Labour Party roared back into poll position to lead a new Government.

Remarkable enough. But that's only where things started getting interesting. 

You see, the final voting figures look very, very likely to deliver 44 seats to Labour, 42 seats to Liberal-National, 2 to the Katter Australian Party and one to an independent MP. You then need 45 seats for a majority in the Legislative Assembly, and thus the right to govern. And the independent MP has made it clear he's prepared to side with Labour to give it this (while the Katter Australian Party might do likewise, although it hasn't committed to doing so yet). 

So that looks simple enough - Labour will have a (bare) Legislative Assembly majority. That may be an uncomfortable place to govern from, but it is good enough to be going on with. However, here's the interesting part.

You see, one of the seats that Labour has "won" is called Ferny Grove (which, if Queensland's naming policy is anything like that adopted by property developers, means that it is a flat, sun-baked stretch of asphalted suburbia with no trees over 2 m in height). After the distribution of preferences (more on this in a second) the Labour candidate got 14,225 votes to the Liberal National candidate's 13,816. A 409 vote majority - close, but win is a win.

Except that also in the race was a candidate for the Palmer United Party (PUP) called Mark Taverner. He received some 993 first preference votes (again, more on this in a second). And, it subsequently turned out, he also is an undischarged bankrupt. Which under Queensland law disqualifies him from being a candidate at a state election - meaning he should never have been on the ballot paper in the first place.

Now, you see the problem? The 993 first preference votes that Mr Taverner received are more than the 409 votes that the Labour candidate won by. So what would have happened if Mr Taverner had been kept off the ballot paper (as the law required)? Would enough of those 993 votes have shifted the Liberal National candidate's way to change the result?

Queensland's voting system then adds another wrinkle to the issue. iIt uses an Optional Preferential Voting (OPV) system to elect its MLA's. 

OPV is a unique voting system giving voters a choice to vote for one candidate, more than one or, all candidates on the ballot paper. Voters can cast a valid vote by either: 

  • expressing a single primary preference for one candidate only (marking only one square, leaving all the others blank) 
  • expressing a partial distribution of preferences by voting for some, but not all candidates on the ballot paper (marking some but not all squares) 
  • expressing a full distribution of preferences (marking each and every square in order of preference). 

The votes are then counted in this fashion:

  • Firstly ballot papers are sorted into formal and informal votes. Ballot papers without a clear first preference are set aside as informal votes and are not admitted to the count. 
  • The first preferences for each candidate are then counted. A candidate is declared “elected” if they have an absolute majority of the formal first preference votes (an absolute majority is more than 50 per cent of the formal votes). 

If no candidate has an absolute majority the transfer of preferences is done by: 

  • Eliminating the candidate with the least amount of first preference votes. That candidate’s second preference votes are then distributed amongst the remaining candidates. Ballot papers with no second preference are set aside as “exhausted”. 

This process is continued until a candidate has an absolute majority of the votes and that candidate is then declared “elected”.

So, under this system, if any voters ranked Mr Taverner above the Labour and Liberal National candidate and then also went on to express a preference for either the Labour or Liberal candidate, their vote still got counted even though he was unlawfully included in the election. But if any voters only expressed a preference for Mr Taverner, then they cast their vote for a candidate who shouldn't have been on the ballot paper at all. And if Mr Taverner hadn't been on the ballot (as he shouldn't have been), then they might have cast it in a different way. 

Should that fact then render the final result in Freny Grove void? Or, does it depend on whether there are more "Taverner only" votes than the 409 vote majority? Or, should the mistake simply be treated with an effective shrug - people had the opportunity to rank as many candidates as they wanted to, and if they chose not to do so (by only ranking Taverner) then it's just their bad luck if he turns out to be a disqualified candidate. 

Ultimately the answer to these questions will be given by Queensland's "Court of Disputed Returns" - in essence, a judge from the state's Supreme Court. For what it is worth, I think it is very unlikely that the declared result will be overturned (even though the presence of an unqualified candidate may in theory be a reason to void the election, I just don't think there'll be enough "tainted ballots" to overcome the 409 vote majority). But what happens in the interim?

Because go back to the numbers in the Legislative Assembly after the election. Labour's 44 (including Ferny Grove) plus the independent MP is a bare majority. But if the result in Ferny Grove is being disputed, should the declared (but disputed) "winner" be allowed to sit and vote in the Legislative Assembly? Or, should the appointment of a new Premier and Government wait until the outcome of the challenge to the result in Ferny Grove is completed - noting that it is possible (if unlikely) that the outcome will be a new election for that seat?

Again, the answer to this looks likely to be that Labour's leader will get appointed Premier and head of a new Government, with whatever happens in Ferny Grove then being dealt with down the track. But the whole chain of events in Queensland got me thinking - what would happen in a similar case in NZ?

We've seen one sort-of the same case back in 2002, with United Future's Kelly Chal. She, some of you may recall, was included on that party's candidate list even though she was not a NZ citizen (which you legally need to be in order to be eligible to be a candidate). When United Future surprisingly received enough party votes to put her into Parliament, she hurredly had to resign her spot before the (as it then was) Chief Electoral Officer declared her elected. Which then allowed another United Future list MP to come in instead of her - so the problem managed to get avoided.

But what if, instead of being a list MP, she had been an electorate candidate? Especially in a seat that was reasonably closely contested, so she receives more votes than ?

Two points to note here. The first is that there is no legal obligation on any electoral officials to check that prospective electorate candidates meet all the legal requirements (or, alternatively, don't meet any of the legal disqualifications) to stand as candidates. Under the Electoral Act, the returning officer in each district simply acts as the receiver of an application to stand and checks that the relevant forms have been filled in correctly. The obligation for ensuring that the prospective candidate meets the legal requirements to be a candidate instead rests with each individual candidate and/or his or her party.

[I don't know if the Electoral Commission carries out any informal background checks (as it were) on prospective candidates - all I'll say is that s.145(6) ("In every other case the Returning Officer shall accept the nomination") does not appear to leave any room for it to do so.]

The second is that a situation like that in Ferny Grove looks to me to be the basis for a successful electoral petition challenge under NZ law. If you can show that some minor party/independent candidate was on the ballot paper unlawfully, and that she or he got more electorate votes than the winning candidates majority, then that would be grounds for setting the election result aside and ordering a do-over. It would constitute an "unlawful election", in which the "failure, omission, irregularity, want, defect, absence, mistake, or breach ... affect[ed] the result of the election."

My only hesitation in being more definitive about this is that there's bugger all case law to back up my initial presumptions. About all I can find is this case from the Turks and Caicos Islands, which is hardly a compelling precedent.

But even so, here's something that Parliament's Justice and Electoral Committee might want to think about - what would happen if a Kelly Chal-type candidate sought to run in their electorate, was put on the ballot and got more votes than they won it by? Do they really want to wait for a Court to give an answer to that question?