The replacement for retiring Member of the Legislative Assembly Kate Carnell has been chosen – the Liberal party’s Jacqui Burke.
Was the method by which she was chosen the best and fairest?
There are three methods of replacing retiring members of Parliament in Australia: the by-election (for the Lower Houses of the Commonwealth and all states and territories bar the ACT and Tasmania); party selection (for the Senate and some state Upper Houses) and the Hare-Clark count-back (for Tasmania and the ACT).
Jacqui Burke was chosen by the Hare-Clark count-back. Briefly, all the ballot papers which went to elect the retiring member are selected out and recounted to seek out who was next the preferred available candidate of those voters. It is the next “”available” candidate because the preference might first have gone to an existing sitting member or it might have gone to a candidate who no longer wants to take a seat in the Assembly – having lost at the general election a candidate might have found a new fulfilling life.
But why not have a by-election? Surely, a lot of people who voted for Kate Carnell in 1998 might well have changed their mind by January 2000?
Well, a by-election has fundamentally undemocratic features in a system like that in the ACT. We have multi-member electorates. Seven MLAs are elected in Molonglo. What if the retiring MLA had not been from a major party? Say, Kerrie Tucker of the Greens had been run over by the proverbial (solar-powered) bus? If the vacancy were determined by a by-election it would inevitably be a contest between the Liberals and Labor and one or other of them would win the seat. That would be contrary to the will of the people expressed in 1998 to have Green representation in the Assembly.
By-elections are more suitable for single-member electorates like the House of Representatives. The by-election was best suited to the days when Members or Parliament were seen more a representatives of an electorate, not just an array of party hacks. When one representative resigned or resigned, the people chose a new one.
But that is no good with multi-member electorates. That was obvious with the Senate. The Constitution provided that it was up to the State Parliament to choose a new senator, seeing as the Senate was a states’ house. But with the rise of strict political parties the convention was that the state parliament (whatever its complexion) would pick someone of the same party as the retiring senator. After 1977, that convention was made mandatory.
Well, why don’t we apply the Senate rule to the ACT? Given Carnell was a Liberal, why not just get the Liberal Party to nominate the replacement and have it ratified by the Assembly? Sure, this would be a fairer than a by-election, but we usually get quite a few independents in the ACT. Their replacements would be hard to deal with, particularly as there is no equivalent to the state parliament (which is acting as the retiring senator’s “”electorate”) to do the selection.
Also, the major parties are so riven with factionalism these days that inevitably some deal would be done behind closed doors that had more to do with factional balances than the people’s choice.
Indeed, the situation in the Senate has given credence to Paul Keating’s famous epithet: “”unrepresentative swill”. He was referring to the fact that Tasmania with 450,000 people got 12 senators, the same number as NSW with more than 10 times that population. However, it is now “”unrepresentative swill” for another reason. Eight of the 76 senators were not elected. They were selected by their parties to fill vacancies created by resignations of party colleagues. Several of them will sit in the Senate for more than five years before facing election. One, indeed, was not re-elected by the voters in 1998 after serving a full term, but he has popped back into the Senate on party appointment where he will stay for more than five years before facing the electorate.
Why do that when it is possible to consult the electorate by looking at the way it voted at the last election? From those ballot papers it is a simple step to find out which was the next choice of those electors who chose the retiring member.
This is eminently fair in the multi-member environment. The system says: “All those people who voted for Carnell have now lost their choice so let’s look at who their next preference would have been”. People who did not vote for Carnell already have their 1998 choices continuing in the Assembly – Labor, Green, Independent or other Liberals.
The count-back system would be disastrous in the single-member environment, however. If a Labor Member retired or died, for example, the next preference would inevitably be a minor party or an independent. In a multi-member environment, however, there are typically five or seven candidates from each party and often blocks of like-minded independents. Voters tend to put their first five or seven preferences in the same box. The ACT Electoral Commission has confirmed this trend. In the case of Carnell, 86 per cent of those who gave her first preference gave another Liberal second preference.
A further advantage of the count-back is that it would be more democratic if you got a popular major-party figure with a very large personal vote who later retired. Instead of a party hack getting the nod, an independent or minor party candidate could take the seat if enough people had voted for them as second preference. That happened to some extent with Carnell. Of the people who gave her first preference, 14 per cent gave a non-Liberal candidate second preference. It was not enough to take the seat from the Liberals, but there have been occasions in Tasmania when the count-back sent the seat to a different party — only because the voters wanted it.
A count-back is cheaper than a by-election, but that is not a strong argument.
The theory behind the count-back is that the people vote at a given point in time for a three-year Parliament. Referring back to that point seems a logical and fair thing to do and it obviates aberrant protest votes against sitting Governments.