Peter Brent

Independence of Australian Electoral Bodies

Very rough, not completed draft paper on independence of Australian electoral bodies. No citation without prior permission.

See accompanying table here.

Note: this was written when NSW still had an electoral Office, rather than Commission.

It is … incorrect to assume that an organisation either is, or is not, institutionally independent. The extent of its independence will rather fall on a continuum, ranging from highly independent to not at all independent, and its location on the continuum will depend on the extent of its institutional independence in a number of different dimensions. [1]

In a perfect world, elections would be run by wholly independent bodies. These would be totally separate from politicians, political parties and perhaps even parliament, beholden to no-one. They would also need to be miraculously self-funded and their objectivity would be beyond doubt. But in our imperfect world, full independence is not possible, and one obvious - but by no means the only - reason is finance. It costs a lot of money to run an election[2], and bodies such as the Australian Electoral Commission get their funds from the public purse, which is inevitably – at some point - presided over by politicians. More generally, any state body and the individuals who work within it rely on decisions made by the government of the day for structure, career path, conditions of employment and indeed the body’s very existence.

It is difficult to think of a public institution that should be more deserving of independence than one that runs the process that decides who forms government. On the other hand, no person or group of people is beyond reproach, and monitoring and a degree of oversight is always required. But who is to oversee the bodies that conduct elections?

The Australian approach, federally and in every state and territory (nine spheres in all), has been to create statutory independent bodies presided over Commissioners. ‘Statutory’ simply means created by statute - an act of parliament - and it implies separation from the government of the day. The actual passing of such statutes can be seen as formal recognition by parliamentarians of the desirability of such freedom from political independence and perhaps an implied statement of intent: they (parliamentarians) will respect that independence.

Perhaps most importantly, the nine individuals who run our EMBS occupy statutory positions; each is the Electoral Commissioner of their jurisdiction[3]. Commissioners enjoy more autonomy than, say, the secretary of a public service department, and are, in theory at least, responsible to parliament rather than the government of the day. Electoral Commissioners are employed under conditions not covered by their jurisdiction’s Public Service Act. They enjoy tenure and are, relative to ‘normal’ public servants, difficult to dismiss. Commissioners are perhaps the defining characteristics of the Australian approach to EMB independence.[4]

None of these features is absolute, of course, and with trends in recent decades towards executive dominance over parliament, the distinction between being responsible to one instead of the other, particularly in unicameral Queensland and Northern Territory (and to a lesser extent the ACT[5]), may be difficult to ascertain. In addition, independence bestowed by legislation can of course be rescinded by more legislation. But this statutory independence is now an integral component of the Australian model of EMB independence, and when, in February 2005, the Tasmanian Electoral Office was replaced by the Tasmanian Electoral Commission, it meant that every Australian EMB was a statutory body run by a Commissioner.

Commissions and Offices

Although each of the nine has an Electoral Commissioner, two of the bodies - in New South Wales and South Australia - remain, in name, ‘Offices’ rather than ‘Commissions’. (See table.) The Australian Electoral Commission, the first electoral commission in the country, came into being in 1984, as did the position of Australian Electoral Commissioner. Apart from Elections ACT, which was a Commission from its inception in 1992[6], each of today’s seven Electoral Commissions was formerly an Office (or, strictly speaking, replaced an Office). An Office exists within a department (Premier’s and Justice in NSW and SA respectively[7]) while a Commission is more ‘loosely’ associated with a department. Commissions might, for example, run their own budgets and pay the department for staff or resources (for example stationery, computers, floorspace).

Are the two Offices less independent than the Commissions?  I contacted several Commissioners - current and previous – and their staff, academics and other experts for this paper, and put this question (and others) to them, and none believed so. In fact, as the accompanying table shows, Commissioners at the two ‘Offices’ appear to enjoy greater on paper independence than those who run the Commissions. But on paper it could be argued these two bodies are less legally independent than the Commissions.

Commissions, Commissions and Commissioners

To complicate matters, there are several types of commissions and commissioners. There are the Commissions we have been discussing, of which Australia has seven in the electoral arena (plus two offices). Then, as noted, there are Commissioners who run a body that can be called a Commission or an Office, of which there are nine. But the terms have two further available meanings.

The organization we know as the Australian Electoral Commission, which runs federal elections, is a case in point. It has a divisional office in each of the 150 House of Representatives electorates, a head office in every state, a central office in Canberra and, in total, about 900 staff.[8]. The Australian Electoral Commissioner is the Chief Executive Officer of this organization.  But there is another body with the name ‘Australian Electoral Commission’, and it consists of just three people: the same Electoral Commissioner, plus two others - a chairperson and a non-judicial member.[9] This three-person Commission sits atop the other (larger) AEC, even above the Commissioner, according to AEC’s organisational chart[10]. In fact, this smaller body is legally the ‘real’ AEC, and the large body is our day to day understanding of what the AEC is. Of the other eight Australian EMBs, Tasmania and the ACT also have three person commissions; the other six don’t.[11] In every (three-person) instance, the commission consists of the Electoral Commissioner, a Chairperson (typically a judge) and a third, non-judicial member – usually, in the case of the AEC, the Australian Statistician.

And then there are the Commissions that preside over electoral redistributions, which have been around for over a century. Electoral boundaries need to move because of population changes, and the practice of appointing commissioners to redraw them - appointments that might typically last several months – is more than a century old. Pioneered in New Zealand and adopted by NSW in 1893, it was an early step in the direction of taking redistributions out of the hands of parliaments and into those of public servants and judges.[12]

Parliamentary Oversight Bodies

The Parliamentary Oversight Body is another feature of the Australian landscape, less to do with independence per se than with efficiency and integrity of the electoral apparatus. At the federal level this is the Joint Select Committee on Electoral Matters, a cross-partisan group of parliamentarians which has met after every election since 1983. (Not the same individual parliamentarians, of course.) It was an initiative of the Hawke Labor government that was maintained by the Coalition after it took office in 1996.[13] At these, interested individuals and organizations are invited to contribute submissions regarding problems or issues that arose from the most recent election, after which the Committee calls witnesses and produces a report. This report often leads to amendments to the Commonwealth Electoral Act.

After the most recent New South Wales election, that state’s parliament ran the first of what will be regular committees, the Inquiry into Administration of the 2003 NSW Election and related matters. Federally, and in the states, there have from time to time been one-off Committees and Royal Commissions into aspects of electoral administration, but these automatic committees are relatively recent. It has been noted that prior to 1983, changes to Australia ’s electoral machinery tended to originate outside parliament and were introduced individual members or parties.[14]

Officers of Parliament

http://www.parliament.uk/commons/lib/research/rp2003/rp03-077.pdf p2 has 4 criteria

‘The concept of independent constitutional officers with an institutional relationship with Parliament is found in commonwealth countries and the republic of Ireland’ [but constitutional not possible in Australia .]

p8: ‘a special relationship of accountability to Parliament’

Responsibility might be seen in zero-sum terms. If we wish to put a public body at arm’s length from the government of the day we must place it closer to another point of power, and in the case of Electoral Commissioners (and other commissioners) that somewhere else is the parliament. This is a murky area in Australia , in part depending – as noted earlier - on the make-up of parliament, and is perhaps compromised by Commissioners’ ultimate reliance on government departments for finance. When a person is responsible to the parliament they can be called an Officer of Parliament[15]. In Australia this is implied rather than explicit, and legislation doesn’t state that Commissioners are Officers of Parliament. In some other Westminster countries the position is more formal. Canada is a good example, recognising Officers of Parliament at the national level. In some Canadian provinces (states) this recognition is even more formalised. British Colombia has a list of defined Officers, of which the Chief Electoral Officer is one[16]. Uniform procedures apply to all the Officers, who are presided over by and answerable to a cross party[17] Parliamentary Committee, which allocates their funds. “The Officers have to appear in public before the Committee to justify their budget plans.”[18]

Conclusion: Independent Australian Election Management Bodies?

The table shows features of the statutory independence of Australia ’s Electoral Commissioners. It has nine rows, one for each body, and the columns contain the name of each body, the relevant legislation, the year the first commissioner was appointed (Note that the New South Wales Commissioner predates the others by half a century, although along with South Australia, the body presided over remains an ‘Office’), method of appointment, length of appointment and method of dismissal.

All Electoral Commissioners are appointed by the Governor (Governor-General federally, the Administrator in the NT and the executive in the ACT). 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[19]. In both the territories, independents are consulted along with party leaders. But there appears to be no obligation to take the advice of these other parties.

With one important exception, method of appointment seems to be the weakest link, with the final decision in the hands of the government of the day. South Australia is the odd one out, requiring ‘a recommendation made by resolution of both Houses of Parliament’. As a government will rarely control both houses, this appears to be a powerful bulwark against partisan appointment.

 

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 the strongest, although of course it depends on how easily a commissioner can be removed (and, more trivially, at what age the Commissioner is appointed). The others have appointment for a fixed set of years – 5, 7 or 10, with the possibility of further terms, but interestingly in all but one, Victoria, this number is a maximum, and a lower term is possible if stipulated at the time of appointment. Victoria is also the only state who appoints a commissioner for ten years.

The various methods of dismissal are described at length in the key to the table. Many parts of the workforce have safeguards against dismissal of employees, and the public service is no exception; several years ago the government found itself in court after it dismissed the secretary of the Defence Department[20]. Commissioners, as discussed above, are supposed to be more secure than public servants, so it is likely that any Australian government would experience difficulty and unwanted publicity if it attempted to get rid of an Electoral Commissioner.

Procedure A - automatic removal if Commissioner stands for parliament, becomes bankrupt etc - is almost standard across all of Australia , with the odd jurisdiction out being Western Australia, dismissal is not automatic.  Procedure B appears to give the government the easiest route, although an aggrieved ex-Commissioner might find grounds for contesting in court. But it is probably an option that a government intent on disposing of the Commissioner, would rather have than not.

C and/or D present the most difficult methods, requiring as they do the consent, and hence presumably scrutiny, of parliament. But this also depends on the makeup of parliament; for example, the Northern Territory has just one parliament elected by single member constituencies, meaning the government of the day will nearly always have control. Such a government would find employing C a mere formality. On the other hand, a government majority in the single ACT house, which employs multi-member electorates, is unusual (although a majority is just what the current government has). Taking such factors into consideration, we can argue that Western Australia, South Australia and New South Wales, all of which combine proportionality for their Legislative Councils with an absence of the B dismissal option, give the Commissioner most security. Throwing in the variable of tenure would see WA, with nine years against the others’ until age 65, drop out of contention.

We need to acknowledge, however, that job security may produce undesirable consequences. If a government anticipates difficulty in sacking the Commissioner, it might prove an incentive to appoint an individual it feels more comfortable with; perhaps someone less ‘independent’. This makes the appointment process doubly important, and reintroducing this variable places South Australia clearly in the lead, with the Electoral Commissioner appointed ‘til age 65, and as the only jurisdiction to require full parliamentary support (of two houses) for both appointment and dismissal

While preparing this paper and table, I contacted several electoral administrators, including commissioners and their underlings. One stark area of consensus emerged: that (from their point of view) the formal, written rules stipulating independence of Australian election management bodies were less important than the unwritten codes of behaviour and accepted demarcation between election administrators and politicians that have arisen from a century and a half of practice. With some exceptions, Australian politicians have not been inclined to interfere in elections, probably thinking they couldn’t get away with it, and election officials have been inclined to resist any political pressure that has arisen[21]. At the other extreme, all the rules in the world would make little difference if a country’s rulers can ignore them at will. Perhaps we can see Australia ’s electoral administration laws as a codification and consolidation of longstanding practice as well as a bulwark against standards slipping in the future.

Bibliography

Dacey, P. (2005) Paper Delivered to Conference of Commonwealth Chief Election Officers, New Delhi, 24-26 February 2005.

Kingdom), H. o. C. U. (2003) 'Officers of Parliament - A Comparative Perspective', Research Paper 03/77.