Saturday, March 27, 2021

Holding The House Of Assembly And Legislative Council Elections On The Same Day

Having completed the initial runs of my Lower House guides it's now time to move onto the Legislative Council.  But before I do there is a general matter about the Legislative Council elections that I wish to cover in its own post.  For the first time in the state's history as a state (I am not sure about colonial elections) this year's Legislative Council elections are set to be held on May 1, the same day as the House of Assembly elections.  While there are advantages in holding the elections on the same day, I believe this is unfair to independent candidates because of the Council's strict spending restrictions, and that for this reason the Legislative Council elections should have been moved (perhaps to May 29) and should be moved if this is still possible.  

Historic cases of elections held close together

The following table shows cases where the House of Assembly and Legislative Council elections were held close together:

(Source: Parliament House website).  In the early days, Legislative Council elections seem to have been held on a range of days of the week, resulting in some cases of the elections falling four days apart.

If the elections were to be held close together, it would generally make sense to hold the Assembly election first and then the Council election second.  The reason is that the Legislative Council is a house of review, and in making their decisions about who to elect to review government legislation, it may help voters to know who the government is.  However, holding the Council elections just a week after the Assembly elections must have been confusing with the overlapping campaigns, and wouldn't have helped in drawing attention to the Council contests.  

The 2021 election is the first time since 1989 that this issue has arisen, and only the third case in the last fifty years.  In the 1989 case the Council elections were held two weeks after the Assembly elections. 

In the days of the above elections, nearly everyone voted on the day, so election campaigns tended to peak in the final days.  These days they are more spread out, and elections held a week or two apart would contaminate each other a lot more.  Three or four weeks, not so much.

There is currently no law that prevents the holding of both levels of election on the same day, and indeed voting for both houses on the same day is business as normal federally and in NSW, Victoria, WA and SA.  I am unaware of there having been any law preventing it in the past, but one may have existed.  In any case it never having been done before doesn't automatically mean it is a bad idea, so here are some possible arguments for and against:

For holding elections on the same day

* Cost savings resulting from voters voting twice at once

* Likely increased turnout for Legislative Council elections, which tend to lag state election turnouts because of low voter awareness

* Avoiding unnecessary repeat gatherings of voters given COVID-19

* Avoiding disruption to candidates already campaigning for May 1 elections.

Against holding elections on the same day

* Disadvantage to Legislative Council independent candidates.  Under current spending requirements, Legislative Council candidates can only incur campaign expenses of up to $18,000 per candidate.  This applies both to independent and party candidates, but in the meantime political party candidates will be receiving the benefit of unlimited saturation-level state based advertising spending for their parties.

* Possible counting delays.   It is not yet clear what measures the Electoral Commission will take with the counting of two elections at once under COVID restrictions but at the least I would expect some delays with booth figures on the night.

* Confusion.  The boundaries of Legislative Council divisions overlap state boundaries.  Some voters are likely to turn up to the polling booths not realising they have to vote twice and knowing nothing about the Legislative Council candidates and contests.

* LegCo getting lost in the noise.  In past years much has been done (on this site and by many in the Tasmanian media) to improve the level of coverage of Legislative Council contests and put them on a level with the lower house contests.  Now there is a risk the contests will be a sideshow.

* There is some potential for confusion about formal votes.  For the House of Assembly a voter must vote 1-5 without error, but for the Legislative Council 1-3 is sufficient.  In federal elections it has been clear that the 1-6 requirement in the Senate is causing some informal votes in the Assembly where there are 8 or more candidates.  Of course, if the Government had liberalised the Assembly formality rules this wouldn't matter.  (Instead the final reform report - which won't be acted on this term anyway - verballed my submission as saying that exhaust rates would increase if ACT style savings provisions were brought in, which not only was nothing like what I said but also probably isn't true.)

* And, I should mention, the sheer nuisance value for analysts like me!  It's harder to do covering elections justice when there are lots of them happening at the same time.  

Comments About Holding Both On The Same Day

The following was what was said at Peter Gutwein's press conference:

Journalist: Will there be a Legislative Council election on the same day.

Peter Gutwein: Yes, we will be.

Journalist: Obviously that will give your candidates a huge leg up.

Peter Gutwein: Look that will be a matter for the Electoral Commissioner to manage. I’ve taken advice from the Solicitor General, and I’ve been informed that it will be manageable.

I wonder if the Premier had trouble hearing the question, because he seems to be talking about whether the situation is manageable and legal and not whether it is fair.  For sure running the elections together can be done, but the Electoral Commissioner doesn't have the power to manage away laws that when applied in conjunction create a non-level playing field for independent candidates. 


I would also like to address the likely COVID objection to holding the elections separately.  If one considers that holding two separate elections unnecessarily is a risk, then one should also consider that holding one election unnecessarily is a risk, and by that token this Lower House election shouldn't be happening.  

Political impact

I suspect the government is keen to hold the elections on one day because of the mostly difficult time it has been having in the Legislative Council.  Perhaps if it can have a very strong statewide result and avoid a by-election atmosphere around the Legislative Council election, it might be able to improve its standing in the Upper House.  The government could obviously use a hand in defeating an independent opponent in Windermere, but if things go extremely well then dual elections might even make the Government competitive in Derwent and (if it is running there) Mersey, where it would normally have little chance.  

I will add further comments here if anything else comes to light on this matter.  It should be noted that the Legislative Council elections are normally held on the first Saturday in May but can be moved to any Saturday in May without legislation.

Lennon Letter (10 April)

A letter by six independent Legislative Councillors (all except Gaffney who was seeking re-election at the time, he has since been returned unopposed) to the Electoral Commission had no immediate effect.  Indeed Premier Gutwein not only declined the request to postpone the Legislative Council elections but also took issue with the independent Councillors' claim that their role was "holding the government of the day to account".  Gutwein suggested (partly in order for a free shot at Labor) that the Councillors were acting as an Opposition, not a house of review.

On 9 April former Premier Paul Lennon, citing advice dated 7 April from former Solicitor-General Leigh Sealy,  wrote to the Electoral Commission raising the legal issue of generic party spending, including spending on website maintenance, as it relates to Sections 159 and 162 of the Electoral Act.   S162 states:

"162.   Party not to incur election expenditure

A person must not incur any expenditure for or on behalf of a party with a view to promoting or procuring the election of a candidate or intending candidate as a Member of the Council, whether or not the candidate or intending candidate is an endorsed candidate or intending candidate of the party."

The claim is that parties are incurring expenditute with a view to promoting or procuring the election of Legislative Council candidates as well as House of Assembly candidates (i) by specifically advertising those candidates on their websites (ii) through generic advertising of party policies.  Issue (i) has occurred to me before, though the expenditure incurred in this case would be indirect (a portion of web costs or perhaps payments to staff or web designers).   Issue (ii) involves direct expenses, but for multiple purposes.  I do not have a view on what the Supreme Court would make of this and whether it would see that generic party expenditure for the purpose of promoting many candidates counts as expenditure directed at "the election of a candidate".  The legal advice also flags that courts may interpret the law narrowly for federal constitutional reasons.  

In theory if it was found that expenditure was illegally incurred, this could not only lead to penalties for the offender or their party but could also lead to a successful challenge against the election of Liberal or Labor Legislative Council candidates.  The Tasmanian Electoral Act is vague concerning how the Supreme Court would decide such a challenge (it lacks the explicit limitations on decisions in the federal Act) but in theory it could void one or both LegCo seats requiring a re-run - however if so the winner "on May 1" would be seated while any challenge was being heard.  Probably we shouldn't overestimate the chances of such a voiding happening just yet.  However, individual candidates who exceed their spending caps by $1000 can be disqualified.  

There is some similarity with a different issue with the LegCo spending requirements.  In the 2013 contest for Nelson, it became apparent that lobby groups could avoid the Legislative Council spending restrictions if their campaigns encouraged the voter to vote for one of a range of candidates without specifying which one, or even to vote for anyone but a specific candidate.  The tactic failed and we haven't seen much of it since.  

1 comment:

  1. Including the political party in the candidate cap has a higher chance of being constitutional than a complete ban on party campaigning.