Could A Major Party Soon Take Control Of The Tasmanian Legislative Council?

The recent Tasmanian state election featured the holding of Legislative Council elections on the same day as the House of Assembly election for the first time ever.  This was controversial in fairness terms, and there were suggestions that parties might be breaching the Electoral Act, in particular by their candidates benefiting from generic party advertising that fell outside the strict Council spending requirements.  All has gone quiet on the challenge front following the election so far, but the Tasmanian Electoral Act allows a snoozy 90 days (!) for would-be challengers to get their act together, so it's too early to be certain that we've heard the last of it.  The strikingly different voting patterns in the overlapping booths could make it difficult to satisfy the court that Lower House generic advertising affected the upper house results, if that was something that the court considered relevant.  

One of the three seats contested saw a change in party status, with Liberal Nick Duigan picking up Windermere on the retirement of three-term conservative independent Ivan Dean.  This took the Liberals up to four seats out of 15, with Labor on five and six remaining independents.  

This continues a bad run for independents, which Ben Raue has graphed here.  Since the Liberal Party came to government in 2014, independents as a group have dropped six seats (half of their starting tally) to the major parties and gained none.  Major parties gained Elwick, Rumney and Huon from sitting independents, gained Rosevears and Windermere after incumbents retired, and won the new seat of Prosser after independent-held Western Tiers was abolished in a redistribution.  In the last three years this pattern has been especially notable with the number of party seats increasing three times out of five chances to do so.  

This has caused some speculation about the future of the Council.  In a June 8 Mercury op ed ("Our shot to rethink governance", not online) former Liberal Minister John Cleary suggested merging the two Houses into a single House, noting that the major parties now had a combined majority upstairs (though incorrectly crediting them with 10 seats rather than 9).  I don't see either major party supporting this one any time soon, because on current numbers it would create a messy hung parliament (Liberal 17 Labor 14 IND 7 Green 2) and that's not likely to change unless a government starts winning most of the upper house seats (in which case it has a rubber stamp upstairs anyway, so the problem of the Council goes away).  Even if one party did propose it, the other probably wouldn't cooperate.  

However Richard Herr in another op ed ("Ticking timebomb in Upper House", June 18) raised another possibility: one party might get a majority itself:

"If the trend of the past three years is repeated, by 2024, one or the other major party is likely to have the numbers to vote for merging the Council with the Assembly as Cleary proposed. Partisan MLCs might be more easily persuaded to support a partybased plan to abolish the Leg Co if the new unicameral were created by absorbing the Leg Co into the House of Assembly as a way that might save their seats." 

I still can't see why such a major party would want to perform a straightforward merge even if it could, but there are all sorts of other things a party holding a majority in both houses might consider.  They might abolish the Council but expand the House in some different way.  They might change the electoral system of the House to make majority government easier to achieve.  The question is: is majority control by one party really likely any time soon?

Although the trend away from independents has gathered pace from 2016, it can be traced back to the Pembroke by-election in 2009.  At that election Labor's controversial incumbent Allison Ritchie resigned, and the Liberals, who had rarely contested LegCo elections in previous decades, made a bold decision to nominate the late Vanessa Goodwin for the seat.  Labor decided not to recontest, Goodwin bolted in, and the Liberals' interest in contesting Council elections increased significantly.  Between 2010-21, the Liberals have formally contested 14/32 Legislative Council contests, while Labor has formally contested 19/32. 

Success Rates

For the period 2009-2021, here are the success rates for major parties in contests of various types:

1. Independent recontesting:

8  Independent re-elected, major parties didn't run                                                                             

4  Independent re-elected, defeats Labor challenger

2  Independent re-elected, defeats Liberal challenger

3  Labor gain from independent

17 Total     

                                                                                                  

In this period, major parties defeated independents in a third of the cases in which they challenged them, but none of the other six cases were close.  Indeed in three of the other six, the challenging major party didn't make the final two.  There were no cases of both majors challenging the same independent.  The Labor gains were in 2016 (Elwick), 2017 (Rumney, defeating an "Independent Liberal" MLC) and 2020 (Huon).  There was no case in this sample of an independent unseating another independent, which last happened in 2003 (twice on the same day, including Ivan Dean unseating "Independent Labor" MLC Silvia Smith).  

2. Independent vacancy:

1 Independent wins, major parties don't run

1 Independent wins, defeating Labor

1 Independent wins, defeating both major parties

2 Independent wins, defeating Liberals

1 Liberal wins, defeating independents, Labor doesn't run

2 Liberal wins, defeating Labor and independents

8 Total                                                                

In this period, at least one major party has contested every Independent vacancy except Mersey 2009.  The Liberals have contested six vacancies and Labor four.  The Liberals have won three, including the two most recent (Rosevears 2020, Windermere 2021).  However they failed (by a large margin) to win Nelson 2019, despite the seat having a conservative history.  

The strike rate for major parties when contesting (3/7) has been a little higher than when challenging a sitting independent.   

Labor has not picked up any of the independent vacancies.  By my count, the last time Labor won an independent vacancy was in 1992 (David Crean, Buckingham) and before that 1952 (Phyllis Benjamin, Hobart), though just before that Labor had won several vacant independent seats.  In total by my count 13 Labor MLCs have come to office by beating independent incumbents, with six winning on Labor vacancies, six on independent vacancies and one on a Liberal vacancy.  

In contrast by my count historically Liberals have generally gained seats that were vacant (I count seven - four IND, one Labor, one Liberal, one new).  They gained another seat by an independent joining the party, and only one by defeating an incumbent to my knowledge (William Fry defeated Lucy Grounds (ALP), Launceston, 1958 - also see note re Mulder below).  Note that older historic results were in the days before parties appeared on ballot papers.

3. New seat:

1 Liberal win defeating Labor and independents

1 Total

The Liberals gained Prosser, a new seat made mostly from bits of Rumney, Apsley and Derwent.  

4. Major party recontesting:

4 Labor incumbent retains

2 Liberal incumbent retains

1 Labor incumbent defeated by Independent

7 Total

Since Lin Thorp's loss to "independent liberal" Tony Mulder in 2011, other major party incumbents have all been returned easily.  Mulder was at the time openly a Liberal Party member but was not endorsed (reportedly because of preselection indecision.)

5. Major party vacancy:

1 Labor doesn't recontest, Liberal beats independents

1 Labor retains defeating independents, Liberals don't contest

1 Labor gain defeating Liberals and independents

3 Total

All major party vacancies have resulted in major party victories, but in one case it was Labor gaining from Liberals and in another case the reverse.  These cases involved the same seat (Pembroke).

The road to eight

Currently Labor is three seats short of a majority and the Liberals are four seats short.  If one party is to gain a majority, how might it do this? 

The first path is by winning Independent seats.  These are the current independent seats with their dates of election (alignments are from my most recent voting patterns article, noting that I have usually in the past placed Rattray and Armitage as centre-right or centre):

Firstly, all of these independents won their seats easily last time, except for Armitage who had a very tough contest with high-profile independent nurse and company director Neroli Ellis.  However only one new independent (Webb) has joined the Council in the last nine years.  The others have all had long careers in often multiple levels of government and, while any or all of them may recontest, I suspect that some won't.

Even assuming none of these incumbents recontested, it is difficult to see either major party getting to eight by winning the above seats in the next few years.  I find it very hard to see the Liberals winning Hobart (where they finished third behind two left independents in 2018) or Labor winning either McIntyre or Murchison.  Labor might win Hobart back if at some stage there is no prominent left(-ish) independent running, but there seems to be no shortage of such lately.

The second path is by winning some combination of Independent seats and seats held by the other party.  These are the current party-held seats.

The main thing to notice here is that the party MLCs are mostly early in their careers and two-thirds of them will be in their early fifties or younger when next up for re-election.  Barring exceptional circumstances or better offers, most of them should recontest.  

The second thing that is interesting here is that most of the seats are on tight margins - as seats get increasingly party-contested, they may also be becoming more marginal, as Ben Raue suggests here.  However, it is very difficult to see the Liberals gaining Elwick in 2022.   Rumney was a close contest in 2017 but has since been redistributed, gaining the ALP-friendly Risdon Vale booth, while Prosser had a large field in 2018 and is an unknown quantity with an incumbent recontesting.  Rumney and Pembroke have both been left-vs-right swing seats at recent elections and Prosser might become another, but that's yet to be established.

As well as the redistribution in Pembroke the Liberals have the problem that they have historically almost never won seats from incumbents, though the sample size for that observation is small.  

In theory, Labor could get to a majority in the next few years, but that's probably contingent on several independents retiring and Labor cleaning up its current mess and the Liberal government becoming severely on the nose.  It seems unlikely and it would require Labor to do something they have not done for a very long time: win seats in the north.  But even if it could occur, to actually win the power to reform the Council unilaterally a party needs to hold government in both houses at the same time.  Assuming that the Liberals are not going to win Hobart or Elwick any time soon, to get a majority in their current term and be able to unilaterally reshape the Council, they would most likely need all of Armitage, Rattray and Forrest to retire, to win all their seats and to also take Rumney.   

The rapid rate of party gains in the last three years may well be a cluster of such events (a lot of odd electoral things have happened in this pandemic) rather than a sign that indie seats will keep falling to parties at that same rate in the future.  After all, one indie was just returned unopposed!  But even if the recent rate continues, a 60% rate of switching implies 2-3 more party gains by 2024 at the regular elections and it would be unlikely the same party would win all of those.   More chances for parties to make gains could appear if some of the current independents decide to retire mid-term, causing by-elections.  But if a major party does ever control the Council, I think it's more likely to happen later this decade or next decade rather than in the current Assembly term.