The Butler-Palmer proposal for a New Zealand constitution

Unlike most nations of the world, New Zealand does not have a written constitution. The process of how its government is appointed is governed by ordinary legislation; specifically, the Constitution Act 1986. However, unlike most constitutions, this legislation is not specially entrenched; nor can courts check the validity of legislation against it, since Parliament is considered the supreme body for national legislation. This system is inherited from the United Kingdom, which has a similar constitutional system.

Some opponents of this system claim that it provides little protection for individual liberties (New Zealand's 'Bill of Rights Act' has no validity in the courts), and that it makes the Constitution difficult for ordinary citizens to understand. It was these reasons in particular that appear to have encouraged former Labour Prime Minister Geoffrey Palmer and constitutional lawyer Dr. Andrew Butler to write a draft of a potential New Zealand entrenched Constitution. The document is available here.

The Constitution contains some interesting ideas, though it is mostly relatively gradual change from New Zealand's current constitutional system. At the moment, New Zealand has a unicameral parliament, elected by mixed-member proportional representation. A government is chosen by, and responsible to, this Parliament. All of these features would be preserved, and strengthened in the case of the electoral system. Nonetheless, changes are made to some parts of the nation's constitutional structure. The largest one of these is the abolition of the monarchy.

Republic of New Zealand

The first parts of the Constitution lay out the most immediate and substantial change; the replacement of the monarchy, with the Queen of New Zealand (who, coincidentally, is also the Queen of the United Kingdom, Canada, Australia, Jamaica...) represented by the Governor-General with a Republic. Under the current system, the Queen appoints a Governor-General (by convention, the Governor-General is a non-partisan figure appointed on the advice of the Prime Minister of the day) who then appoints a Prime Minister (generally the leader of the party or parties with majority support in the Parliament).

Under the new system, the Parliament would elect, every five years, a 'Head of State'. It is specifically stated that MPs would have a free vote on this matter, though MPs may still follow party lines on this matter in the hope of gaining a more influential position within the party. This Head of State has the formal power to appoint a Prime Minister, though under the new system they can only appoint the candidate elected by Parliament. They appoint Ministers, though this is on the advice of the Prime Minister only. The same condition applies to the Head of State's power to issue writs for parliamentary elections, to appoint ambassadors, and to promulgate legislation.

Regardless of what my readers may think about the virtues of republicanism, one potentially concerning issue exists with the manner in which legislation is promulgated. Laws passed by the House go to the Head of State for signature. In deciding whether to give approval to legislation, the Head of State must act "on advice from the Prime Minister and Attorney-General". This could potentially mean that Parliament's ability to legislate over the head of the Government could be jeopardised, given that the Prime Minister could simply advise the Head of State to veto legislation that Parliament had passed without his support.

This could be more of an issue in New Zealand's political system. Mixed-member proportional representation means that one party has never had an absolute majority in the House, and as such governments are dependent on support from other parties, perhaps with different ideologies. Were these other parties to disagree with the policies of the government, and were they to attempt to vote with the opposition on a bill, the senior government party, with a minority of seats, could simply veto that bill.

Of course, the general response would be that while New Zealand's (and Australia's) Governors-General have had authority to refuse assent to legislation, they have never done so by convention. This is true, but the Australian Constitution and the New Zealand 'Constitution'  do not include the requirement for the Governor-General to act on the advice of the Prime Minister, and thus the convention would be changed.

A better way of putting this would be to either give the power of promulgating legislation to the Speaker of the House  (as in Papua New Guinea), or to allow the Parliament to override the decision of the Head of State by simple majority and either require them to assent to the legislation (as in Morocco) or allow the Speaker of the House to do so (as in the former Kingdom of Laos). The Head of State could also be simply required to sign the legislation. Any one of these solutions would work just as well as the other, but one should be adopted to ensure Parliament is able to act as a law-making body.

Choosing a Government

The present system of choosing a Prime Minister by the Governor-General appointing the person who has the confidence of the House would be replaced under the new Constitution. Under the new system, the Parliament elects a Prime Minister from amongst its members. The Prime Minister must have majority support from the Parliament, which I take to mean that the Prime Minister would be elected by exhaustive ballot (MPs vote for candidates, the candidate with the lowest number of votes is excluded, a further round takes place amongst the remaining candidates. This process repeats until one candidate has a majority. The candidate who has a majority is then appointed by the Head of State as Prime Minister.

This method of appointing a Prime Minister is quite common in the Pacific region. Papua New Guinea, Vanuatu, Fiji, Nauru (though this is for the combined Head of State and Head of Government, titled the President) and Tuvalu all 'elect' their Prime Minister in this way. In theory, the system acts the same as the method used in other Commonwealth countries of appointment by the Sovereign; in both cases, the Prime Minister should have majority support in the parliament. However, it does provide some clarity to the process. Attempts to use the method of appointment by the Sovereign in countries that are more politically fractured, such as Nigeria, resulted in political violence and extended litigation; even in Australia, the dismissal of the Whitlam government in 1975 represented a case where the powers of the Sovereign were used in a controversial manner.

In this case, then, this represents a very minor change to existing practice in New Zealand. Nonetheless, it would appear to be sensible to take powers away from a Head of State who is meant to "endeavour to act as a non-partisan symbol of unity"; even more so when that leader is chosen for a fixed term by a simple majority of Parliament.  As is normal practice, the Head of State would then appoint a Cabinet, on the advice of the Prime Minister.

Fixed terms of Parliament, for four years, are established. Early elections may be held if three-quarters of Parliament vote for them, or if a majority of MPs vote no confidence in the Government and no new government receives a vote of confidence for fourteen days. This does give the option, for a government wishing an early election, of faking a vote of no confidence in itself and using its majority to block formation of a new government. Nonetheless, this tactic could not be effectively blocked without making it impossible for Parliament to be dissolved in case of a severe deadlock.

Parliament

The Parliament remains unicameral, and most features are again simply the current practice in New Zealand, but codified. The mixed-member proportional representation system is specified as the means by which Parliament is elected, meaning that it cannot be changed without a Constitutional amendment.

Certain parliamentary offices are specified in the Constitution. The Leader of the House, the Opposition Leader, and the Finance Minister are all in the document, with their roles vaguely outlined. This appears to be an attempt not so much to entrench these offices (which have existed in NZ since the evolution of the modern party despite not being in the Constitution) as to make the Constitution more effective in describing how government operates in the country. A committee system is also entrenched. The committees are given the right to propose legislation, and ministers are prohibited from serving on most of them.

Various other financial offices are entrenched, such as the office of the Auditor-General and the Reserve Bank, which is tasked with "formulating and implementing monetary policy designed to promote stability in the general level of prices" and "promoting the maintenance of a sound and efficient financial system".

Rights and Freedoms

Of course, the main goal of this constitution is to create some rights and freedoms against which legislation can be checked. Oddly enough, this section is towards the ending of the document, a rarity when a Constitution has a bill of rights planned out at drafting (the US's rights and freedoms provisions are towards the end, but they were not put in when the Constitution is written); the only example I can immediately think of is Rhodesia, and those were not strictly rights and freedoms (given that they were qualified to the moon, and were not judicially enforceable anyway).

The rights provided are quite broad, including freedom of expression, the right to privacy, freedom from discrimination on a wide variety of bases, freedom of religion, and rights to a fair trial. These rights, however "may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". This gives some leeway for the government to qualify these rights, though is not uncommon in rights and freedoms provisions around the world. It is also obviously stronger than the current wholly unenforceable Bill of Rights.

Some more rights are provided in the economic area. Free education to the secondary level is guaranteed, and the government is also required to protect the environment (this, as far as I can tell, would be enforceable through the courts). A series of principles for economic policy are laid out, including rights to an "adequate standard of living", social security, and satisfactory health and safety conditions in employment. These principles are explicitly not enforceable through the courts.

The police and intelligence agencies are both specifically mentioned in this section. Both set out that activities of these agencies must be limited by law. Information collected by the security agencies must be approved by a warrant from a 'judicial officer'. Precisely why this provision exists when the right "not to be subject to arbitrary or unlawful interference with that person’s privacy, family, home or correspondence" is unclear; one would assume that, were judicial review to be robust, the courts
would establish guidelines for surveillance.

Other sections

Local government is entrenched in the Constitution, though with no specific powers being granted; rather, a series of principles for its organisation are set out. The office of an Ombudsman is mandated, as is a requirement that official information "must be made available to the greatest extent practicable".

Amendment of the Constitution is done by a vote of three-quarters of Parliament; quite a high threshold by international standards. The US requires a two-thirds majority of both houses of Congress (and ratification from three-quarters of the states) and India requires two-thirds of both houses and half the states: closer in the region, Vanuatu requires two-thirds of Parliament, and Papua New Guinea requires two-thirds as well, while Australia requires a majority in both houses and passage at a referendum by a majority of voters both nationwide and in at least four States. Back in NZ, a referendum is then required, with a majority of votes sufficient to pass the referendum (this is how I interpreted the provision; it does not state specifically that both are required, or that only one is).

An extra provision is added for legislation that is invalidated by the courts for incompatibility with the Constitution. This legislation may be 'validated', and hence considered to be in accordance with the Constitution, if a law to that effect is passed by three-quarters of Parliament (but no referendum). For a Constitution where much effort appears to have been put into making it easy to understand, such a provision would seem to hide amendments to the document in hard-to-find pieces of legislation.

One of the most interesting, and as far as I know unique, provisions is the requirement that a Constitutional Commission be held every ten years. This Commission is to be composed of six law officers (the Clerk of Parliament, the Chief Justice, the Ombudsman etc.) and six lucky members of the public. It is tasked with investigating amendments to the Constitution, and reporting to Parliament on the matter.

In general, the Butler-Palmer proposal has substantial merit for protection of human rights, as compared to their current protections, and for making the governing process clear. Nonetheless, in an effort to reach this goal some of the provisions appear too vague, while others seem even redundant. This could lead to difficulties when legislation went before the courts. In order for the document to be effective, clarity and specificity should be placed above educational value. The remainder of the document represents effective codification of current practices, though with some questionable changes involved in the process of transition to a republic.

Scotland 2016-One weird trick to improve a party's seat count

With elections to Scotland's devolved parliament coming up next year, it looks almost certain that the left-wing nationalist Scottish National Party, which has been governing since 2007, will win a comfortable victory. Polling done in recent months suggests that, off their near sweep of Scotland's Westminster seats earlier this year, the SNP will win a comfortable victory, under the leadership of First Minister Nicola Sturgeon.

However, unlike in Westminster, their gains will be limited somewhat, because of Scotland's usage of a mixed-member proportional representation system. Even if the SNP wins all of Scotland's constituencies, or makes a near sweep, the mechanism of the mixed-member system (described below) will keep their vote shares aligned with their seat shares. There is an option, though, for the SNP to make use of a tactic that has been used before in MMP and compensatory mixed-member systems to avoid this, called decoy lists.

How does Scotland's electoral system work?

Initial plans for a Scottish parliament were put forward by the Wilson-Callaghan governments in 1978, following an inquiry triggered by a strong SNP performance in the 1974 election (the October one). Exact details of the electoral system are unclear, as I don't seem to be able to find the specific legislation. It seems that some variation of the plurality system was proposed. This would have likely led to a Labour-dominated assembly, and this may have been one of the reasons that the proposal was rejected in a 1979 referendum (while 51.62% of voters voted Yes, this only represented 32.8% of the electorate, substantially short of the 40% of the electorate requirement).

Shortly after this referendum, a general election resulted in a Conservative government, led by Margaret Thatcher, take office. The Conservatives had little interest in devolution, and as a result it stayed off the agenda until 1997. In this year, a Labour government, led by Tony Blair, took office. Labour were committed to devolution. A referendum took place in 1997, which resulted in a 74-26 vote in favour of a Scottish assembly, and a 63-37 vote in favour of said assembly having tax-varying powers.

In order to get broad support for an assembly from the SNP and Liberal Democrats, the Blair government proposed a proportional system. Much discussion was had on the issue of this system, but the eventual result was a mixed-member proportional system that was later adopted by London and Wales.

The system works in this manner. Voters have two votes; one for single-member districts and one for regional party-lists. The single-member districts are simple: the candidate with the most votes wins. In the regions (of which there are currently eight, each electing seven members), all the party-list votes are counted up. The D'Hondt system is applied in these regions; however, the first divisor in the sequence is increased by the number of single-member districts won by the party.

For example, if Labour wins 5 district seats and 50,000 votes, and the SNP wins 1 district seat and 40,000, Labour's vote is divided by 6, meaning that Labour's vote in the party list contest is 8,333. The SNP's vote in the party list contest is 20,000. Party list seats are then distributed using D'Hondt.

This system serves to reduce the disproportionality that happens with single-member plurality. For example, at the first election to the parliament, Labour won 53 constituency seats off 38.9% of the vote, but this strong result in the districts meant that they only won three seats in the lists, thus making the overall result relatively proportional (off 33% of the list vote, Labour won 43% of the seats).

What is a decoy list? 

A decoy list is a tactic used under a mixed-member proportional (or compensatory) system in order to turn it into a mixed-member majoritarian system. The basic idea is that you run your single-member district candidates as members of a different party to your district candidates. This means that you can avoid the penalties that these sort of electoral systems levy on parties that win big in the districts.

An example of this took place in Italy's 2001 election. At this time, the lower house of Italy used a mixed-member system called the scorporo. The voting process was similar to Scotland, except the compensatory mechanism was somewhat different; the list the winning candidate district was affilated to had its vote reduced by the votes cast for the second place candidate in the district plus one. If a candidate affiliated to the list of Party X wins 10,000 votes, and the runner-up gets 5,000 votes, Party X's list votes are deducted by 5,001.

A key element of this system is that parties are permitted to form coalitions, as parties need to win 4% of the nationwide vote to get party-list seats. As a result, a district candidate can display themselves as a candidate of a national coalition on the ballot paper, while being affiliated to a list within that coalition. All party lists were on the national ballot paper.

In the 2001 election, the centre-right coalition, Casa della Liberta (House of Freedoms), led by Silvio Berlusconi, affiliated many of their district candidates to a list called Abolizone Scorporo (Abolish Scorporo). This list used a dull symbol and was not publicised. Single-member district candidates affiliated to it used the Casa della Liberta symbol. Its only purpose was to soak up the vote reductions caused by the scorporo*. The centre-left list retaliated by running their own similar list, called Paese Nuovo (New Country). The two lists actually received some votes; 0.09% for Paese Nuovo and 0.07% for Abolizone Scorporo.

Given that statistics are vague and calculations are difficult, it's a bit hard to measure the exact impact of this tactic. However, the Gallagher index of disproportionality (measured out of 100, based on list votes) spiked from 6.91 in 1996 to 10.22. It's also notable that the Communist Refoundation Party got only 11 seats out of 630, for 5% of the vote. They relied entirely on list seats for their representation in parliament.

How would it work in Scotland?

Let's look at an example. The below table shows the result of a hypothetical election in a region. The SNP has won all 9 single-member district seats, off just 55,000 (33.5% of the vote). With what is clearly an unlucky vote distribution, Labour wins no seats and 27.4% of the vote. The Conservatives (they have the cross logo) win 21.3%, the Lib Dems win 12.2%, and the Greens win 5.5%.

If the SNP ran with their single-member district candidates affiliated to the list, they would win no list seats. Three seats would go to Labour and to the Conservatives, and one to the Liberal Democrats. This would mean that the severe disproportionality in the single-member districts would be compensated for as much as possible.

However, let's say the SNP did not run a party list attached to their district candidates. Instead, they ran a nominally independent list, called, say, the National Scottish Party, that all SNP voters voted for. As you can see, this would mean that the SNP's landslide in the district seats would not reduce their share of the list seats. They would win three of these, bringing their total up to 75% of the total seats in the region.

What if the SNP had tried this strategy in the last election? If we assume that all SNP voters would vote for the decoy list, the results would be as below.

As you can see, it would be a quite dramatic gain for the SNP. They would go from 69 to 96 MSPs, three-quarters of the parliament for 44% of the vote. This is not necessarily an accurate reflection, though. Some voters might not recognise the SNP's decoy, or, more importantly, the other parties could run decoy lists of their own as a defensive measure. This would effectively turn Scotland's electoral system into a pure mixed-member majoritarian system, with complete separation of both tiers. Given the small size of the regional districts, this would lead to a relatively disproportional electoral system (average magnitude would be 1.6).

How would it be done?

So, if you are Scottish First Minister Nicola Sturgeon, and you are reading this blog, you are probably thinking 'Great! But how do I put up a decoy list? What do I call it?'. Well, Ms Sturgeon, this is where you have to use your imagination.

Now, there are a wide variety of ways in which this particular nut can be cracked. However, my best idea is one that takes advantage of Nicola Sturgeon's personal popularity and recognition. First, Ms Sturgeon should resign her membership of the SNP, and form a new party, called, say, 'Nicola Sturgeon for Scotland' or 'Nicola Sturgeon Team'. As there are no formal membership requirements, and it could not be argued that the label was intended to confuse the SNP and the new party, as Sturgeon would not be an SNP member. This party could run in the party-list section, and it could be mentioned in SNP literature as an encouraged second vote.

Now, this article is not to present a strategy only for the SNP, and this strategy could also be used by the Scottish Conservatives, for example, who have strong local appeal in the South of Scotland. I'm not sure what sort of name recognition the Scottish Conservatives have, but had they registered their candidates in the South as independents, they would have won an extra three seats (assuming no SNP decoy and all Conservative voters voting for the independents).

What would be the consequences?

The SNP trying a trick like this would not go unnoticed in Westminster, which formally controls the election legislation for Scotland. If the Conservative government had significant doubts about the SNP's actions, and if the Scottish Conservatives were substantially hurt by decoys, there is the possibility of Westminster legislating to make decoy lists useless.

One way which they could do this would be by introducing one-vote MMP. Under this system, voters would vote only in the single-member districts, and these votes would be used to calculate the list totals, replacing the list votes in the previous system. If SNP candidates recieve 5000 votes in a region, the SNP list is credited with 5000 votes. As it is impossible to separate single-member district and list votes, this would blunt the SNP's tactic.

It's unclear what impact such a system would have on support for the parties. With one exception, no party has a marked difference between their list and district votes. The key exception, of course, is the Scottish Greens. They have adopted a policy of running lists only, in the hope of picking up list votes from left-leaning voters who, while recognising that the Greens cannot win a district seat and therefore not voting Green in the districts, are willing to vote Green in the lists. Under a single-vote system, the Greens would have a much harder time attracting voters.

Another option would be dumping the single-member districts entirely, and having a party-list system only. This option would likely prove controversial, as this has only been used in the European elections, and if it were introduced, it would probably have to have some form of mechanism to open up the lists, and give voters personal control over the elected members. Perhaps, too, the single transferable vote could be used. Scotland has experience with the single transferable vote, as it has been used in local elections since 2007. While this sounds like a good idea, the issue remains that Scotland has lots of land that is virtually empty (and for good reason). This would mean that some STV constituencies would be quite large.

This post is not intended to endorse the Scottish National Party. Indeed, this is a strategy that could be used by all of Scotland's parties. The SNP, however, is in an especially strong position to exploit this particular loophole. I would suggest that it would be advisable for Westminster to close it, in some way, to ensure Scotland's parliament continues with its original intention of proportional representation.

*The Abolizone Scorporo list was used again in the 2004 European election. In an attempt to reduce the vote for the Green party, the Abolizone Scorporo symbol was placed in the middle of the symbol for the 'Green-Greens', a right-wing Green party. Under Italian electoral law, this means the list is entitled to get on the ballot automatically.

Queensland election 2015: Newman, Palaszczuk, and GetUp!

Queensland will be heading to the polls on the 31st of January, to elect all 89 seats of the state's unicameral Parliament. Members will be elected in single-member constituencies using optional-preferential voting. The election was announced by Premier Campbell Newman on the 6th of January in the face of multiple poor opinion polls for Newman and his Liberal National Party.

Queensland's Parliament House, in Brisbane (own photo)

Background

For 32 years, Queensland was governed by the National Party, a conservative, rurally oriented party. The Nationals mostly governed in coalition with the Liberal Party, a conservative, urban based party. For most of those 32 years, the government was run by Sir Joh Bjelke-Petersen, a peanut farmer from Kingaroy, a rural town in the state's south-east. Bjelke-Petersen ruled for nearly 20 years, and introduced a number of controversial policies during that time. However, in 1987  Bjelke-Petersen was forced to resign after a number of corruption scandals involving his government were uncovered. 

Bjelke-Petersen was preceded by Mike Ahern and Russell Cooper, who failed to make much of an impact. In the 1989 election, Cooper and his Nationals were defeated by the Labor Party, led by Wayne Goss.

Goss led the state for 7 years, and introduced a number of anti-corruption reforms during that period. He was comfortably re-elected in 1992, but was returned to office only narrowly in 1995, and the overturning of a result in one seat and its subsequent gain by the Liberals allowed the Liberal National coalition, led by Rob Borbidge, to gain office in early 1996.

Borbidge's government was relatively unsuccessful, and a number of scandals and missteps by the government led to the Coalition's defeat at the 2001 election by the Labor party, led by Peter Beattie. The 2001 election was notable for the rise of the One Nation party, a radical right party founded by Pauline Hanson. One Nation won 11 seats, but soon disintegrated due to infighting and splits, and won only 3 seats in 2001 and 1 seat in 2004.

Beattie led Queensland for 9 years, comfortably winning every election. In 2007, he handed over to his deputy, Anna Bligh, who won the 2009 election comfortably, becoming the first woman ever elected to lead an Australian state. However, at the 2009 election, the Liberal and National parties had merged into the creatively named Liberal National Party.

Bligh's second term, however, was not successful. A number of scandals and controversial , privatisations not announced in 2009 dramatically reduced her popularity, and the Labor Party was defeated with a massive swing of 15% against them, and the loss of 44 seats. The Liberal National Party (LNP), led by Brisbane Lord Mayor Campbell Newman, won, with a record majority. Labor won just 7 seats.

Newman, however, has governed in a rather divisive manner. Anti-motorcycle gang legislation introduced by Newman has been accused of being overly strict, and a large number of civil servants have lost their jobs. Legal appointments made by the Newman government have been sharply criticised by many in the Queensland community.

As a result, the Newman government goes into the 2015 election in a far poorer state than in 2012. The Labor Party has fared relatively well in Opposition, despite a small caucus.

Party prospects

The Newman government stands to lose a large amount of seats. This cannot come as a surprise, given that a significant number of seats won by the government were won due to anger at the Bligh government, which will not be much of a factor at this election. However, most opinion polls have shown them with a narrow lead, and it is relatively likely that they will be returned with a small majority.

More interesting is the potential fate of Newman himself. He is the member for the seat of Ashgrove, which was held by Labor from 1995 to 2012. Newman wanted to run in a local seat, and won Ashgrove in 2012 with a 12% swing. He now holds it on a 5% margin. 

This is a winnable seat for Labor. It is being contested for Labor by Kate Jones, who was the MP for Ashgrove from 2006 to 2012. If Newman loses, but his party wins, he will either have to force an MP to resign so he can run in a by-election, or resign as Premier.

Labor has done well over the past three years. Leader Annastacia Palaszczuk has done relatively well for a state opposition leader, and her party is likely to make significant gains. However, it seems that Labor will fall short, although it is not impossible that they win.

A number of small parties will be contesting this election. The Palmer United Party, a political party founded by Queensland mining millionaire Clive Palmer, may win a few seats, although that party has been hit with a number of controversies recently. Bob Katter's conservative Katter's Australian Party will likely lose all of its seats, after a poor performance in the 2013 federal election. The Greens are weak in Queensland, and won't win anything. Perennial loser Pauline Hanson will make a run for the safe Liberal National seat of Lockyer; she probably won't win.

Electoral law rant 

In early 2014, the Newman government passed a number of changes to Queensland's Electoral Act. These changes were relatively controversial, but one of the ones that attracted the most attention was a requirement that voters present identification in order to cast an ordinary vote. 

For those who are unaware, in Australia, voters must not present ID for any election. They register before an election, and their names are placed upon a roll that is distributed to every polling place in a constituency. In order to vote, a person needs to have their name not crossed off the roll at the polling place at which they want to vote.

While this may seem open to fraud, most cases of multiple voting in Australia tend to be accidental in nature. However, the rationale aside, the law has been introduced, and will be used for this election.

The activist group GetUp!, which tends to support left-wing causes, has led a campaign against the law, and they have led a campaign to put advertisements in the Brisbane newspaper attacking the changes. One of the ads is reproduced below (I am not aware if these ads were printed, but they are on GetUp!'s website). Click on the ad for a close-up.

This ad has a number of problems. First of all, the driver's license statistics are a complete non sequitur; a driver's license is but one of many documents that can be presented in order to vote. Antony Green's blog has a list of documents that voters can use. It includes telephone bills, local council rates notices, and Medicare cards.

Secondly, and more seriously, this ad may be in breach of Queensland's Electoral Act.

The ad runs into trouble in its choice of wording: it claims that "if voters don't have the right ID card, they won't be able to vote at all". This is simply not true. Voters may not cast an ordinary vote without ID. However, they may still cast a declaration vote.

 The difference is clear.  If a voter casts an ordinary vote, their vote is simply placed into the ballot box, as the polling officers have determined that that person is on the rolls and has ID (in Queensland). However, in Queensland, if a voter does not have ID, but is on the electoral roll, they will be told to cast a declaration vote. A declaration vote involves a voter casting a vote, but then placing it in an envelope. The voter then fills out a form, which is attached to the envelope. After the election, the form is examined. If the voter was eligible to cast a vote, the envelope is opened and the vote is counted. If not, the envelope is thrown away.

Australian electoral law contains specific prohibition against misleading voters. Below, I have reproduced Section 185 of Queensland's Electoral Act, which deals with misleading voters.

185 Misleading voters

(1) A person must not, during the election period for an election,

print, publish, distribute or broadcast anything that is intended

or likely to mislead an elector in relation to the way of voting

at the election.

Maximum penalty—40 penalty units.

(2) A person must not for the purpose of affecting the election of

a candidate, knowingly publish a false statement of fact

regarding the personal character or conduct of the candidate.

Maximum penalty—40 penalty units.

(3) A person must not, during the election period for an election,

print, publish, distribute or broadcast by television any

representation or purported representation of a ballot paper for

use in the election if it is likely to induce an elector to vote

other than in accordance with this Act.

Maximum penalty—40 penalty units.

(4) In this section—

publish includes publish on the internet, even if the internet

site on which the publication is made is located outside

Queensland.

Now, I am not a lawyer, and this is not legal advice. However, the GetUp! ad, which is still on their website here, seems like it might run afoul of this piece of law, given that it tells voters that they will be completely barred from voting without ID when this is not the case.

This section of law is rarely enforced. It was used in 1996, against a man named Albert Langer. Langer had published a booklet encouraging voters to give equal last preferences to candidates that they disliked equally, which is illegal. Langer was sentenced to 10 weeks in prison, which was later reduced to 3 on appeal.

In Queensland, 40 penalty units is equal to $4554 Australian dollars. This is a very harsh fine, and the full penalty would be unlikely to be levied against GetUp! if the case were to be tried and the group were to be found guilty (and I won't be making a complaint against the group; in my humble opinion, this section is way too open to be used in such a way). I have nothing against GetUp!; ironically, this may be an own goal, given that it may frighten left-leaning voters without a driver's license away from the polls.

So, Queenslanders who are reading my blog (a small group), when you go to vote, take some ID mentioned in Antony Green's blog post to speed things up, but if you do not have any of this ID, you can still vote.

For more information about Queensland's election, visit Dr Kevin Bonham's blog for polls and the ABC election website for news.