Graeme Orr

Ballot Order: Donkey Voting in Australia

A recent California decision has thrown into sharp relief the benefit received by candidates favorably placed at the top of a ballot. After finding that officials had ordered candidates’ names erroneously, a Los Angeles County Superior Court Judge reversed a close electoral result in the small city of Compton on the basis of statistical evidence drawn from studies of other elections. Ballot order advantage, whilst long a concern to psephologists and candidates, has tended to be seen as a question of the “luck of the draw”—an issue for designing a fairer system of devising ballots, rather than one of corrective justice in an individual race. The initial result in Compton seems extraordinary to an outsider from a jurisdiction where disputed returns are rare and, even if successful, result only in a re-election.1 Such an outcome only makes sense if the successful candidate were linked to proof of manipulation of the draw.

Suppressing Vote-Buying: the ‘War’ on Electoral Bribery from 1868

Electoral bribery is an ancient phenomenon, but its manifestations and pathologies can only be understood in the context of particular electoral norms and political practices. The spark for electoral bribery in the Westminster tradition was the shift from parliamentary service as a duty to a privilege, whilst its paradigm forms of treating and crude vote-buying are traceable to a shift from buying a seat to buying the voters. The gradual move from cultural acceptance to legislative and ethical condemnation of electoral bribery is attributable to a concern with the rising cost of elections and developing notions of fair electoral competition. This article focuses on the seminal period in the ‘war’ on electoral bribery from 1868 to the early twentieth century, giving a taxonomy of the various forms of bribery and judicial responses to them, as well as an explanation of the role played by statutory developments. The ultimate success of this war on corruption is shown to lie in a confluence of politico-legal techniques – election courts, tighter legislation, the secret ballot and the mass franchise – and institutional developments, in particular the rise of centralised, professional parties.

A Fetishised Gift: The Legal Status of Flags

Accounts of the relationship between flags and the law have focused on a narrow strain of contentions drawn from debates about political expression. This essay seeks to bridge the gap between cultural studies’ insight into nationalism and its symbolics, and the flag’s legal status, to better understand the unique position occupied by national flags. Flag ‘waving’ has become more prevalent in many liberal democracies. In such societies, flags occupy not a religious role, but a quiet and quotidian place in what Billig terms ‘banal nationalism’. As a cipher for the whole, a particular flag’s design is relatively unimportant; what lends it power is a mix of the gravity bestowed by its official designation and the easy commodification lent by a flag’s easy reproducibility and portability. Unlike other state symbols such as the currency, coat of arms and honorifics, the state does not seek to monopolise the flag’s use, let alone define its meaning. An analysis of the laws in several countries governing flag designation, observance and ‘desecration’ reveals that the law accords the flag distinct status yet only equivocal protection. While the state may crave its citizens’ fealty, a flag is not a symbol of some distant governmentality. Rather, it is gifted to ‘the people’ and relies for its relevance on its organic proliferation. As both object and image, people attribute a power to the flag – a power they recognise over themselves and others with whom they share a body politic. A key source of this fetishisation is its official, legal designation. Though it embodies no particular values, a flag is valued, even fetishised, by flag-wavers and flag-burners alike.

Electoral Malapportionment: Partisanship, Rhetoric and Reform in the Shadow of the Agrarian Strong-Man

This article revisits the zonal malapportionment and ‘Johrymander’ endemic in Queensland’s electoral system before the Fitzgerald Inquiry and examines how reform was won. Fitzgerald spent little time justifying his intuition that an unfair electoral system eroded accountability, and devolved to the Electoral and Administrative Review Commission (EARC) the task of rewriting Queensland electoral law. It did so by adopting precepts well established in other Australian jurisdictions; the process was one of liberalising, but not groundbreaking, catch-up. The Queensland example is intriguing for the paradoxes it presented. Bjelke-Petersen’s electoral manipulations merged pretence with openness. The concept of zonal weighting was given historical and policy justifications and cloaked behind the work of putatively independent commissions, yet its inherent partisanship was a notorious fact. More curious still, the manipulations were unnecessary either as a means of maintaining the conservatives in office or as a legal subterfuge evading constitutional constraints. Rather, Bjelke-Petersen’s pointed rejection of democratic pluralism married with the projection of an image of leadership by right. Viewing Queensland’s zonal system in the larger perspective of manipulation of electoral maps, this article compares populist strongmen in South Australia (Playford) and Québec (Duplessis), who employed similar rhetoric to entrench themselves in power. Ultimately, as others had, Queensland’s government constructed a long-running but brittle form of agrarian chauvinism, in which the signalling of anti-democratic values inherent in the zonal system was an important rhetorical component. Bjelke-Petersen was proud to govern over, rather than through, democracy.

Private Association and Public Brand: The Dualistic Conception of Political Parties in the Common Law World

This paper examines the legal conception of political parties. It does so by unearthing the history and ontology of the common law relating to political parties in international perspective. The flexibility of the unincorporated association, in which parties are understood through the private law of contract as networks of internal rules or agreements, rather than as legal entities, has proven to be a mask. In the common law’s imagination, the ideal party is a ground-up organization animated by its membership. But the law mandates no such thing, and in its statutory and constitutional conception intra-party democracy may be sublimated as parties need be no more than an electoral persona or brand.

Voluntary voting for referendums in Australia: old wine, new bottle

1 Professor, Law School, University of Queensland. 2 Joan Rydon, ‘The Electorate’ in John Wilkes (ed), Forces in Australian Politics (Angus & Robertson, 1963) 184. 3 Holmdahl v AEC (No 2) [2012] SASFC 110. See Anne Twomey, ‘Compulsory Voting in a Representative Democracy: Choice, Compulsion and the Maximisation of Participation in Australian Elections’ (2014) 13 Oxford University Commonwealth Law Journal 283. 4 Josh Butler, ‘David Leyonhjelm Proposes Abolishing Compulsory Voting’, Huffington Post, 2 March 2016 (Leyonhjelm is a libertarian senator). Voluntary Voting for Referendums in Australia: Old Wine, New BottleProof exists that Law Reform Commissions can still discharge a distinct and effective role in the reform of law and legal policy. In February 2017, some months after the essays that make up this important book were presented at an Australian National University Conference, the Attorney General issued terms of reference for an inquiry by the Australian Law Reform Commission (ALRC) into the incarceration rate of Aboriginal and Torres Strait Islander peoples. Judge Matthew Myers was appointed part time Commissioner, an expert advisory panel of academics and practitioners was installed, discussion paper drawing together the findings of previous inquiries was issued in July, 149 consultations were undertaken in the community, 121 submissions were received and by December an incisive and plainly written report analysing the causes and including 35 recommendations for reducing the rate of incarceration was delivered.Anyone looking at the Corporations Act 2001 (Cth) would be justified in thinking that company law in Australia was both wholly statutory and an instrument of public regulation. Although Anglo-Australian company law may have originally grown out of the law of partnership and been built, largely by the courts, from the material of the private law, the growth over the last 30 years in the complexity, range of matters covered and sheer volume of the Corporations Act would seem to confirm the intuition that Australia’s company law is now both statutory and public. However, while there is no denying the shift in the source of company law, the particular form corporate regulation now takes is actually making Australian company law more, rather than less, private.1 Professor, Faculty of Law, Monash University. 2 R v Birmingham & Gloucester Railway Co (1842) 3 QB 223. 3 US Department of Justice, ‘Siemens AG and Three Subsidiaries Plead Guilty to Foreign Corrupt Practices Act Violations and Agree to Pay

Rethinking voter identification: its rationale and impact

450 Million in Combined Criminal Fines’ (Press Release, 15 December 2008). Improving the Effectiveness of Corporate Criminal Liability: Old Challenges in a Transnational World1 Lecturer, Business School, Charles Darwin University; PhD candidate, School of Politics and International Relations, ANU. This research is supported by an Australian Government Research Training Program (RTP) Scholarship. 2 Australian Council of Social Service (ACOSS), Inequality in Australia 2015: A Nation Divided (Sydney, 2015) 8, www.acoss.org.au/wp-content/uploads/2015/06/Inequality_in_Australia_ FINAL.pdf (viewed 24 April 2016). 3 Factor income is the income arising from the factors of production – land, labour and capital. For the changes in shares over time, see Australian Bureau of Statistics (ABS), ‘Income at Current Prices, December Quarter 2015’ in ABS, 5206.0 – Australian National Accounts: National Income, Expenditure and Product, Dec 2015, www.abs.gov.au/ausstats/ abs@.nsf/Latestproducts/ 5206.0Main%20 Features 4Dec%2

Full Public Funding: Cleaning Up Parties or Parties Cleaning Up?

ABSTRACT Voter ID is a contentious issue in electoral democracies worldwide. This article surveys arguments for and against voter ID in the Australian context, presenting data from the first election in the country to require it. The data demonstrate a differential impact on regional electorates and on electorates with concentrations of Indigenous voters. While the law in question (from the State of Queensland) was moderate in its overall impact, confusion created by it may have suppressed turnout. The law has since been repealed, but voter ID now has the support of a conservative majority on the Commonwealth Parliament’s electoral matters committee. We conclude that voter ID is not a solution to eliminating fraud, but an additional bureaucratic layer upon the ritual of casting a ballot and a hurdle with unintended consequences.

Political Finance Law in Queensland: One Step Forward, Two Steps Back

Public funding of political parties and electoral campaigns has evolved with several aims. One is to inject ‘clean money’ to minimise reliance on potentially corrupting private money. Another is to enhance fair competition by redressing inter-party inequality. A third is to provide resource guarantees to enhance party stability. This chapter first considers the variety of mechanisms of public support of parties. It then examines, both empirically and normatively, the problematic concept of ‘full public funding’. In doing so it surveys those jurisdictions which provide the most generous public funding. These include some European jurisdictions where upwards of 90 per cent of party income is from public sources. It also offers a case study of moves in Australia towards full public funding of electioneering. These moves include calls to ban all private donations. Systems in place in Australia either guarantee parties up to 80 per cent of the election expenditure limit, or pay between AUD

Betting on Elections: History, Law and Policy

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