Inconsistencies alleged by the Liberal National Party in the polling for the Queensland federal seat of Herbert echo the 1995 legal challenge to Labor’s victory in the Queensland state electorate of Mundingburra.
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Labor victory in Herbert
After 29 days of scrutineering and re-counting, Labor’s Cathy O’Toole claimed victory by thirty-seven votes in Herbert on Sunday with a 6.2 percent swing. Incumbent Ewen Jones conceded defeat in a press conference the following day. However, the saga may not yet be over with the LNP giving it’s strongest signal yet that it would mount a legal challenge in the Court of Disputed Returns.
Jones told reporters he would support a challenge by the party and it should take place “as soon as humanly possible”.
“I think the party owes it to our supporters and to the nearly 40 percent of people that did vote for us. We won first past the post vote quite comprehensibly. We lost it on preferences.”
“I think we owe it to the party and we owe it to the people of Townsville (to) get a voice in government. It’s important that we are in government.”
“The decision on whether we mount a court challenge to the Court of Disputed Returns is a decision of the party but I would be agreeing with it if we did take it to the Court of Disputed Returns. Thirty-seven votes, a number of anomalies in the count that we believe that would mount a significant challenge and would mount a reasonable request to the court to sit there and say a new election should be held.”
Now that the seat has been officially declared by the Australian Electoral Commission, the LNP has up to forty days to submit a challenge to the court.
Herbert encapsulates the state seat of Mundingburra in the North Queensland city of Townsville. It is home to a large number of Royal Australian Air Force and Australian Army personnel.
The polling anomalies centre around claims of “an electoral commission oversight” that six hundred defence personnel were unable to cast their vote whilst on operation in South Australia at Exercise Hamel. This number was later defined as eighty-five defence personnel from the Townsville base in the electorate.
— Brigadier Mick Ryan (@LearningArmy) July 1, 2016
— Ian D'Arcy (@RSM_7CBT_BDE) July 1, 2016
— Brigadier Mick Ryan (@LearningArmy) July 1, 2016
Townsville based journalist for Channel 7, Robert Baird, contacted the AEC regarding the alleged oversight but only received a standard response.
— Robert Baird (@rj_baird) July 21, 2016
The Mundingburra by-election
The allegations resemble anomalies at the 1995 Queensland state general election. Mundingburra had been retained by Labor’s Ken Davies by 16 votes and gave the returned government of Premier Wayne Goss a lead of one seat.
However, the Liberal Party was able to successfully argue in court that 22 military personnel, who had cast their votes in Rwanda and which had arrived too late to be counted, had been denied their democratic right. The court ordered a by-election which was fiercely contested in 1996 and resulted in Liberal’s Frank Tanti winning by 1084 votes.
With former member for Mundingburra and LNP hero Frank Tanti – at 150 yrs of Hansard – historic celebration. pic.twitter.com/m9QCbHVx1w
— Ian Walker MP (@IanWalker_MP) August 25, 2014
Tanti (right) was described in 2014 as an “hero” by Newman Government Minister, Ian Walker.
The result allowed Liberal leader Rob Borbidge to strike a deal with independent MP for Gladstone, Liz Cunningham, to form government. Within a week, Premier Goss had resigned, the government had changed and Borbidge was the new Queensland premier.
Commissioner of the inquiry into Queensland police misconduct, Tony Fitzgerald QC, had always been highly critical of the way the Liberal and National party coalition had gained power in 1996. As recently as 2014, he drew a comparison between the bad governance of the Newman Government (2012-2015) and the meddlesome Borbidge Government (1996-1998).
“The National and Liberal Parties (in coalition) next gained power when a government in which Robert Borbidge was Premier and (Russell) Cooper was Police Minister was elected in 1996. The Borbidge Government quickly demonstrated that the coalition parties had learned nothing from their previous experience,” he wrote in a submission to the Legal Affairs and Community Safety Committee, March 27, 2014.
Premier Russell Cooper had been defeated by Mr Goss in December, 1989. Straight away he sought to blame Fitzgerald for the loss with The Sunday Mail reporting on its front page, “Cooper blames Fitzgerald for loss”.
There was no doubt his involvement in the Mundingburra by-election had been based on vengeance. He’d thumbed his nose at the Fitzgerald Inquiry reforms made by the Goss Government by accepting donations for deals.
Fitzgerald wrote, “The Labor Party initially appeared to have won the election held in 1995 but the Court of Disputed Returns controversially ordered a by-election in the seat of Mundingburra, one of the seats which the Labor Party had won.”
“The entire election depended on the outcome of that by-election, which was won by a National Party-Liberal Party coalition with the support of the Queensland Police Union. It later emerged that Borbidge and Cooper had signed a secret Memorandum of Understanding with the Police Union, which donated A$20,000 to the National Party’s campaign and received in return a series of disgraceful commitments improperly allowing it to meddle in police administration, including a right of veto on the selection of the Police Commissioner.”
The gambit in Herbert
According to Ewen Jones, Queensland LNP Senator Ian Macdonald had attended every day bar one of the count in Herbert as a scrutineer. Macdonald had also told Michael McKenna at The Australian on July 25, 2016, that the lawyers had been called in.
“We really need lawyers to look at what evidence is available and to take it from there,” he said.
“Of course, if we remain ahead of the vote, the party may not be so keen and if that’s the case the other side might take a look at it.’’
McKenna wrote, “Senator Macdonald said he had taken a statement yesterday from medical staff at a Townsville hospital over the purported failure of AEC officials to provide ballots on polling day for 39 patients in one ward.
“These are serious issues, these people were apparently waiting all day and didn’t get their chance to exercise their vote,’’ he said.
There are also allegations of absentee ballot papers not being made available to Herbert voters in neighbouring north Queensland seats.”
Fellow Queensland LNP Senator George Brandis had also popped in as a scrutineer. Curiously, the nation’s top legal mind had seen it as a priority to avail himself to the counting of votes.
Both Macdonald and Brandis would be well familiar with the Fitzgerald Inquiry and Goss’s loss of government. To call in lawyers so early makes the gambit obvious.
The play will be to use the precedence of Mundingburra to persuade the court to void the result. The LNP’s long held belief that defence personnel mostly support them will be the springboard to appeal to Herbert to vote with the government.
At seventy-six seats to Malcolm Turnbull’s government, a by-election won’t change things in Canberra. However, reinstating Jones through a by-election would give Turnbull a buffer of two seats.
The cold campaign
Both Labor leader Bill Shorten and Prime Minister Malcolm Turnbull have appeared in Townsville.
Before the result was known, Turnbull arrived on July 26, 2016, He praised Jones as a great advocate for Townsville and spoke of “strong growth and jobs.” Soldiers were easily identifiable milling around in the background.
“I just want to say, pay my compliments to Ewen (Jones) who as the member for Herbert has been a great advocate for this city and a great advocate for ensuring that the Commonwealth works constructively with state and local government.”
On Tuesday, Shorten toured Townsville TAFE and spoke of creating jobs for the region and promoting education. Asked about the possibility of a by-election, Shorten said the LNP wouldn’t be concerned if they’d won.
“If the Liberals had won by a couple of votes, they wouldn’t be carrying on. This is all about the fact that they didn’t win the seat. If they won by a couple of votes, does anyone think they’d be at the Court of Disputed Returns? Not at all, we know that.”
Legal proceedings may play out over many weeks or months as statements are gathered, submitted and argued. Despite the ultimate decision, Australia’s most marginal seat can expect multiple visits by politicians in the three years to come.
(August 7, 2016) Further details released
On the subject of not lodging postal votes before leaving Townsville, Osborne reports, “Soldiers in Darwin and Townsville were told before they left for the exercise they would not need to cast postal votes as their electoral needs would be met.”
There was a pause in activity on voting day to allow personnel to attend polling booths.
“Exercise Hamel underwent a 24-hour pause on election day in order to allow the soldiers to vote and all Army units were given a specific time slot to vote.”
There were reportedly long distances for some personnel to travel to booths and a lack of ballot papers.
“Some soldiers spent up to three hours driving to a staging point where the AEC had set up a booth.
When they got there, soldiers queued for an hour, with 95 per cent of them – according to one source – told that pre-arranged ballot papers were not available for anyone from outside Darwin.
AEC officials then took down the names of those who could not vote due to ballots not being available.
“They had an incomplete roll and had to manually write down names,” an Army source told AAP.
The soldiers were reassured they would not be fined for not voting because their names had been written down.
The soldiers were then offered transport.
They were then offered mini-bus transport to Port Augusta to cast absentee votes.
Many of the soldiers – who were lugging weapons, helmets and body armour which they could not store anywhere – took up the bus offer.
But others reluctantly decided against it because they were angry about being mucked about, felt it too impractical or they were too exhausted to make another trip.
“We wanted to vote because we were looking for context to what we were doing on the exercise – voting is something we should have been extended,” one soldier told AAP.
Once it was established that there had been voting problems, Defence launched a survey to find out how many.
When senior Army officers discovered there were problems with voting, AAP understands a voluntary survey was rolled out to determine which soldiers on Exercise Hamel may have missed out on a ballot.
The actual figure of those who did not vote is likely to be bigger than the 628 cited by Defence.
@Qldaah also some say postal voting was not available before they left. Too early in campaign.
— Paul Osborne AAP (@osbornep) August 7, 2016
-More to come