Saturday, May 2, 2020

Legislative Council 2020: Rosevears And Huon Not Live

In some alternative universe, the polls will close about four hours from now ...

In the normal scheme of things, today would have been the day for the Rosevears and Huon Legislative Council elections.  I think it is worth a quick post to reflect on that fact and to summarise where things are with the postponement of these elections, which I have also been covering in an article that is now well down the list.

The elections were postponed because of risks associated with the current coronavirus outbreak.  Indeed in recent weeks Tasmania has had the nation's proportionally most severe outbreak of COVID-19, but it has been almost entirely confined to the north-western health system and close contacts of individuals within it.  A very small number of cases within that outbreak have been diagnosed in the North and South rather than the North-West, but beyond that the South has had only two cases in the last month (for one of which on 6 April, no detail ever appeared to my knowledge) and the North has not had any.



It is entirely possible, perhaps even likely, that had the elections been held today they would have gone off without causing any transmissions of COVID-19, as apparently did the Queensland elections despite a small level of community transmission in Queensland at that time.  But it was not to be known at the time of the initial postponement that the rate of diagnosed cases in the North and South would at this stage have dropped to a very low level.  Moreover, it's always possible to come up with a scenario (perhaps not a very likely one) in which either the movements of people associated with the elections, or the political distraction level that they cause, would have resulted in further spread of the virus.  And, had the elections been held today, I think it's a given that the turnouts would have been poor, even by normal Legislative Council standards.

As it happens the elections have been subject to a long series of delays, as follows:

* On 23 March, acting on advice from the Tasmanian Electoral Office, the Government postponed the elections to 30 May - the latest postponement possible without passing fresh legislation.  The elections were intended to be run with five weeks of prepolling and a greater emphasis on postal voting.

* On 27 March, the Tasmanian Parliament passed the COVID-19 Disease Emergency (Miscellaneous Provisions) Act 2020 which, although not remarked upon at the time, contained provision to move legislative deadlines such as those in the Constitution Act.

* On 5 April, the Government announced a notice would be issued to postpone the elections further, with an intent to hold them before 25 August when the Legislative Council was then scheduled to resume normal sittings.  (Parliament has since resumed regular sittings anyway, albeit on a scaled-down basis.)

*  On 18 April, the notice mentioned above finally appeared, moving the elections to June, July or August.

* On 1 May, the Parliament passed (with amendments irrelevant to this article) the  COVID-19 Disease Emergency (Miscellaneous Provisions) Act (No 2) 2020 which provided for the elections to be held, without further legislative changes:

- on any Saturday this year subject to the Director of Public Health notifying that "he or she is of the opinion that there is no longer a significant risk to public health that would make it undesirable to hold the 2020 election".

- if no such notice is provided, alongside the other Council elections in May 2021.

The bill as passed also extended the current terms of Rosevears MLC Kerry Finch (who intends to retire) and Huon MLC Robert Armstrong (who intends to recontest) until the winners of the postponed elections are declared.

* Also on 1 May, the Premier Peter Gutwein stated that the Government's intention was to hold the elections in "early August".  There are three dates fitting this description - Aug 1, Aug 8 and Aug 15, though Aug 15 would be a tight squeeze, perhaps too tight, in terms of completing the elections in time for the late August sitting.

What to make of all this?

The ease with which elections have been postponed by Parliament in this situation points to both the strengths and weaknesses of Tasmania's electoral system in the area of entrenchment.  Entrenchment occurs when electoral arrangements are only able to be changed by a referendum or by a specified super-majority of parliamentarians.  Entrenchment has led to some deeply foolish outcomes in other states.  One especially absurd example of this is New South Wales, which entrenched random selection of ballot papers to be transferred during Legislative Council preference distributions, although this method is now unnecessary, opaque and can lead to the wrong winner being elected in close contests.  A referendum would be needed to clean up the mess.  Another is Victoria, which entrenched the structure of the Legislative Council as eight districts returning five members each, although five is suboptimal given the diversity of parties that receive significant votes in that state.  This decision (for further discussion see Greg Taylor's paper here) can also only be changed by referendum.

In Tasmania the only entrenchment is that the four-year terms of the House of Assembly can only be altered if two-thirds of the House of Assembly (currently 17/25 members) agree.  Furthermore it is possible that even that level of entrenchment is ineffective, as the entrenching clause might be revoked by majority.  Everything else can in theory be altered by a majority vote of both Houses.  By comparison, Queensland's election is locked in as it cannot be moved by more than five weeks without a referendum (see Graeme Orr's excellent article on elections in the current situation). Tasmania's Parliament has been able to potentially extend the terms of two of its own by up to a year simply by voting for such a thing to occur.  Because nothing in Tasmania's Constitution Act requires a referendum, Parliament has great power over its own election mechanisms.  We have to hope this power is always used in a trustworthy manner.

A lot has been said about the possible alternative of postal voting.  Elections could be held by mostly postal voting if legislation was passed to enable it.  However, postal voting is sub-optimal for elections as important as state and federal elections in terms of privacy and coercion issues, and in terms of the risk for ballots to be not received by voters, including by reason of deliberate vandalism.  It also requires a lot of work and expense for electoral authorities to prepare. There is a balance to be struck between not departing too much from the original timetable and avoiding holding elections under a sub-optimal system at a time when candidates have limited opportunities to campaign.  A few months' delay to try to hold a more normal election is OK, but in my view if there is still no clear opportunity to hold the elections by, say, October, it would be better to switch to a firm timetable and mostly postal voting.  A whole year just seems like it would be too long, especially when voters wouldn't know the elections would not be held again.  (On the other hand, a Super Saturday of five Legislative Council elections on the same day would be quite an exciting event.)

I prepared guides for Rosevears and Huon when it still looked like the elections would be held in May.  Once we find out when these elections are actually on I will decide whether these need to be relaunched from scratch.  The much-delayed article on Legislative Council voting patterns will probably follow around that time.


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