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Statutory independence of Electoral Commissioners in
Australia.
Posted June 2007. This table, and accompanying
not completed paper, were written a couple of years ago. It doesn't look
like I'll be finishing this project ... in the near future at least. Note
links to EMBs and legislation. Conclusion - who is most independent? - at bottom.
Name of EMB |
Legislation |
Has had an EC since |
Method of appointment |
Length of appointment |
Method of dismissal |
|
|
1984 |
Governor-General
appoints (s21) |
Up to 7
years (s21) |
A
B (s25)
|
|
|
1928 |
Governor
appoints (s21a) |
To age 65
(s21aa(1)) |
A (21ab(2))
C (s21ab(3) |
|
|
1989 |
Governor
appoints (s12) [i] |
Ten years [ii] (s12) |
A [iii]
B (s12-4(d))
C (s14)
D (s12)
|
|
|
1992 |
Governor appoints after national advertising
and Minister consults with each parliamentary party leader. (s23) |
Up to 7
years (s23(5)) |
A (s26(2))
B (s26(1)) |
|
|
1987 |
Governor
appoints on recommendation of Premier, who consults with parliamentary leader
of all parties. (s5b) |
Up to 9
years (s5b) |
C
D (s5c)
|
|
|
1973 |
On
recommendation of both houses of parliament. (s5) [iv] |
To age of
65. (s7(6)) |
A (s7(9))
C
D (s7(7))
|
|
|
2005 |
Governor appoints, Minister consults
Parliamentary party leaders of the Legislative Assembly, and the President of
the Legislative Council [v] .(
s14) |
Up
to 7 years (s17(1)) |
A
C
D (s21) |
|
|
1992 |
Cabinet
‘the executive’ appoints, consultation with every party leader and
independent in parliament (s22) |
Up to 5
years (s25) |
A
C (s29) |
|
|
2004 |
The
Administrator appoints the Commissioner following the Minister consulting
the Leader of all parties and Independent Members of the Assembly (s314) |
Up to 5
years (s320) |
A (s323(6))
B
C (s323) |
Key to table
Name of Election Management Body
(EMB)
There are nine Australian Election
Management Bodies: the national body and one for each state and territory. Until
October 2006 two of them, in New
South Wales and South Australia,
were ‘offices’ rather than ‘commissions’ but each was still headed by an Electoral
Commissioner.
In October last year the NSW Electoral Commission
opened for business, replacing that state’s electoral office.
Legislation
This is the relevant
legislation that created the current body and by which elections are currently
run.
Has had an Electoral Commissioner (EC) since
EC = Electoral Commissioner. With the
exception of Victoria, each of the current bodies was created in the same year as that
shown here, when the Electoral Commissioner came into being. Victoria’s
Commissioner came into being in 1989, while the Commission was created in 1995.
Method of
Appointment of Electoral Commissioner
In all six states the Electoral
Commissioner is appointed by the Governor. Federally, the Governor-General
appoints, in the Northern Territory the Administrator, and in the ACT ‘the
executive’ (ie cabinet). In all cases, this means appointment on
recommendation/instruction of premier and/or cabinet. In four jurisdictions,
legislation mandates consultation with leaders of opposition political parties,
and in a fifth (South Australia) both houses of parliament must recommend an
appointment. In South Australia and Victoria informal consultation (not mentioned in
legislation) with political parties takes place. [vi] In both territories Independents are consulted along with party leaders. But
there appears to be no obligation to take the advice of these other parties.
Length of Appointment
The Electoral Commissioners at two
Australian EMBs, in South
Australia and New South Wales (the two ‘offices’) have tenure to age 65. This is appears to be the strongest,
although of course it depends on how easily a commissioner can be removed (and,
trivially, at what age they get the job). The others have appointment for a
fixed set of ye
ars – 5, 7 or 10, with the possibility of
further terms, but interestingly in all but one this figure is a maximum, and a
lower fixed term, stipulated in the individual conditions of employment, is
possible. The exception, from the legislation, appears to be Victoria, which
specifies that the initial appointment is ten years.
Methods of dismissal
This is of course as important as length of
tenure, because it’s no good being appointed for ten years if you are easily dismissible.
It is also the most complicated. In all nine jurisdictions, Electoral
Commissioners may resign at any time, but there are four broad mechanisms
available for a government or parliament to dismiss them.
A. Automatic
dismissal if one of a list of easily definable conditions is met. These include
the Electoral Commissioner becoming bankrupt, certified mentally ill, engaging
in paid employment without permission, convicted of an offence, standing for
parliament or taking more than a specified amount of unauthorised leave. There
appears to be no discretion, and if, for example, an Electoral Commissioner is
declared bankrupt, then he or she must go.
B. Governor/Governor-General/Chief Minister/ACT
Executive can dismiss the Commissioner for, in the words of the four acts [vii] for which it applies, ‘misbehaviour or physical or mental incapacity’. This
seems to imply some discretion on governments’ part.
C. A more
convoluted process, by which the Governor (or Governor-General etc) suspends the Commissioner and then informs both houses of parliament (or the sole house
in Queensland, ACT or NT). It is then up to both houses to vote to dismiss the
Commissioner. If parliament doesn’t do this (if it passes nothing on the
matter), the Commissioner is reinstated.
D. Parliament (both houses) vote for dismissal.
Summary
Procedure B appears to give the government the easiest dismissal procedure,
while C and/or D (without B)
are more difficult, as they require the consent, and hence presumably scrutiny,
of parliament. But this depends on the makeup of parliament. For example,
unicameral, majoritarian Northern
Territory would nearly always
find employing C a mere formality. If that weren’t enough, an NT
government will always have B at its disposal.
A government majority in
the single ACT house, which employs multi-member electorates, will be unusual;
however, a majority is just what the current government has. Taking such
factors into consideration, it can be argued that South Australia and New South Wales, with state-wide proportionality for their Legislative Councils,
slip in ahead of Western
Australia in difficulty in
sacking an Electoral Commissioner.
If we also take into account conditions of
tenure – to 65 years – NSW and SA possess the most independent
Commissioners – at least in the letter of the law.
[i] In practice,
according to email from VEC, ‘Cabinet decides on the appointment. The
position is publicly advertised across
Australia
, and a panel of senior public servants
works on the selection process. There is informal consultation with the
Opposition during the selection. Once appointed, the Electoral
Commissioner is accountable to Parliament.’
[ii] With possibility of
appointment for further period up to ten years. Initial appointment is fixed
10yrs.
[iii] S12 Part 4 ‘The Office of the Electoral Commissioner becomes vacant
- … (d) upon the Governor in Council determining that the Electoral
Commissioner is physically or mentally incapable of carrying out the duties of
office’ with its emphasis on the Governor’s judgement, appears to give her or
him a large amount of discretion.
[iv] In practice, according to email, the position is advertised
nationally and the final selection is made by the Statutory Appointments
Committee. The committee's recommendation is then put to both houses for
approval.
[v] The Governor has discretion on these matters. That is, not
automatic.
[vi] Based on information from their electoral offices. New South Wales didn’t respond to this question.
[vii] The Acts are the Commonwealth Act 1918 s25(1), Queensland Act 26(1), ACT 1992 s29(1) NT s323(1)
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