Will The Spirit Of Hare-Clark Be Killed By Farce?

Update: As of 9 November the Legislative Council has fixed the issue reporting in this article by changing per-candidate funding to per-party/group funding.  

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Watch out which candidate you vote for next Tasmanian state election.  Your vote could cost the party you voted for $17,000.  That's if the Liberal Government's current electoral public funding model is passed through Parliament with the help of the Labor Opposition.

Of all the bizarre things that have happened in the current Tasmanian Parliament this is among the strangest. We are here not by design but by accident, largely because former Attorney-General Elise Archer was given (and relied upon instead of checking) incorrect advice on a technical point about elections in the ACT.  It may be that the Rockliff Government has no real intention of progressing electoral reforms inherited from Archer, or that an election intervenes before they can come into place.  But if the Government does go ahead and  the Electoral Disclosure and Funding Bill 2022 (No. 25) comes into force with Labor support, then that will create a public funding model that will distort the competition between candidates within the same party.  It will also unfairly advantage some parties over others, and expose voters to tactical dilemmas best left to defective voting systems like first-past-the-post.  This will be the worst reform in the 126 year history of Hare-Clark, the first change that is completely contrary to the spirit of the system.

Hare-Clark was first used in Tasmania on a local trial basis in the 1897 and 1900 elections, and has been used at every state election since 1909.  The spirit of free and fair competition between candidates is appreciated by voters, because it means that there are no safe seats and all MPs must continue to impress or risk being dislodged by others from the same party.  The system has been bolstered over the years by such measures as banning how-to-vote cards at polling booths, and using Robson Rotation to ensure each candidate gets a fair share of good positions in their party order on the ballot papers.

The current reform process proposed to introduce public funding to Tasmanian elections for the first time, but the model released in 2021 included a funding model in which funding ($6 per vote) was paid to parties based on the votes earned by individual candidates who received over 4% of the vote in their seat (or were elected), rather than by party vote as in the ACT.  The per-candidate model is suited to single seat elections, but for multi-seat contests like ours it is grotesquely unfair. The more successful a party is, the more of its candidates will get more than 4% individually, and hence the higher the rate of funding it will get not just in total but per vote.  For the 2021 election the Liberal Party would have got back $5.42 per vote it received, Labor just $4.67 per vote and the Greens just $3.62 per vote.  

Not only does a vote for a candidate who fails to poll 4% or win not result in funding under this scheme, but a single vote cast for such a candidate could result in a different candidate for the same party not reaching 4%, costing the party about $17,000.  A good example is Lyons 2021 where the Greens ran former MP Tim Morris to bolster a line-up with a low-profile lead candidate.  Not only would the Greens have received no funding for the 1502 votes cast for Morris, but had 42 more voters voted for Morris instead of the Greens' lead candidate Liz Johnstone, none of the Lyons Greens would have received 4%. Therefore the Greens would have got zero funding for the 6293 votes (8.9%) they got in Lyons.  The Greens could adapt to this model by running fewer candidates, but then they would be at more risk of having some of their voters cast informal votes. 

This problem is far from confined to small parties. Since 1982, fifteen Liberal and sixteen Labor candidates have polled between 3.5% and 4.0% without winning; under the proposed system all these efforts would have resulted in no funding and taken funding from other candidates for those parties.  Once the 35 seat House fills up, parties would over time come under pressure to maximise funding by running ticket-filler candidates to concentrate their vote among incumbents and stars, rather than middling challengers who might or might not bring funding to the party.  

I objected to this proposal in a submission with the heading Funding Model Contains Major Flaw but this submission was ignored in the version of the Bill introduced in May 2022.  In November 2022 debate exposed the reason why the Tasmanian Bill had a per-candidate funding model instead of the per-party funding model that has been used in the ACT successfully for decades.  Then Attorney-General Elise Archer stated:

"The Bill was drafted so as to use the 4% per candidate model to reflect the fact that under our system we do not have above the line voting for the House.  Although the ACT shares our Hare-Clark system they do also have an option for above the line voting  This fact makes it impossible to ascertain which specific candidates received a first preference vote from each elector if that elector chose to vote above the line.  

It was therefore decided that the 4% per candidate model was more appropriate."

But this was false!  The ACT had had above the line voting when it first adopted per-party funding in 1989 but above the line voting was abolished there in 1994.  Since then the ACT has held eight Hare-Clark elections, in all of which public funding has been paid to parties that get 4% of the vote in an electorate, and in all cases votes have been all credited to individual candidates, just like Tasmania.  

A correction followed, but then the Government decided to pass the Bill through the Lower House with per-candidate funding included, and to consult with me and to consider the matter further with a view to probably amending it in the Legislative Council.  There was some discussion with Elise Archer's staff in early 2023, and they appeared supportive of changing to per-party funding to rectify the error, but as months rolled on I heard nothing more, til finally the Bill was introduced with the per-candidate model unchanged.

That would be no problem if the Legislative Council was willing to amend the model, but Labor has announced that it will be neither moving nor supporting any amendments to the Bill because it does not want the Government to pull the Bill and blame Labor for it not passing.  I understand this on major issues like the funding disclosure threshhold - there is every reason to believe that if the Council amends the disclosure limit to $1000 the Government could walk away from the whole Bill, support for which is already contentious in the party.  But in this case there is no reason for the Government to die on the hill of a mistake made in the office of its estranged former Attorney-General.  If the Government will not accept a Labor amendment to an obvious drafting blunder then it will find other ways to stop the Bill going anywhere, such as not completing the debate, not proclaiming the legislation, or calling an election before it can take effect. 

Of course the greater fault here is not Labor's but the Government's, for introducing the Bill without fixing the problem.  Before the Parliament resumes on October 31 the Government should announce that it will amend its own Bill to fix this issue, and to pay funding per party (as in the ACT) not per candidate.  

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(NB If any media would like to run this article, or an abridged version with link/source, as an op ed for free, feel free to get in touch)