Page 1160 - Week 03 - Thursday, 31 March 2011
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be filled by a candidate from a different party or, indeed, potentially by an independent candidate. Arguably, Mr Speaker, such an outcome would not deliver a representative result, and might serve to alter the balance of power in the Legislative Assembly.
To address this issue, the Electoral Commission has recommended that the Electoral Act be amended to provide that, where a casual vacancy arises and the vacating member was elected as a party candidate, and no unsuccessful candidates from that party apply to contest the vacancy, then the vacancy would be filled by an appointment made by the Assembly using the method set out in section 195 of the Electoral Act. This bill is being introduced to give effect to the Electoral Commission’s recommendation.
Section 195 of the ACT’s Electoral Act currently provides for the situation where a casual vacancy occurs and it is not practicable to fill the vacancy by count-back at all. Such a situation could arise either because of a technical difficulty such as, in the days before electronic counting, where some or all of the ballot papers were destroyed by accident or because no candidates applied to contest the vacancy.
Under section 195, if a vacancy cannot be filled by count-back, there is a mechanism for the Assembly to appoint a replacement member from the same party of the vacating member, where the vacating member belonged to a party, or to appoint a candidate with no party affiliation where the vacating member was not elected as a party candidate. This method is similar to the Senate casual vacancy rules which, like the ACT’s count-back rules, are designed to preserve the proportionality of multi-member election outcomes.
This bill will extend the operation of section 195 to cases where the vacating member was elected as a party candidate and no unsuccessful candidates from that party apply to contest the vacancy. The bill also makes consequential amendments to the Aboriginal and Torres Strait Islander Elected Body Act 2008, which applies various provisions of the Electoral Act to the conduct of elections for the elected body. The effect of these amendments will be to leave the existing elected body rules essentially unchanged, as political party candidates are not recognised in elections for the elected body.
This proposed change to the casual vacancy rules is subject to the Proportional Representation (Hare-Clark) Entrenchment Act 1994. The entrenchment act provides that it applies to any law that is inconsistent with any of the listed principles of the proportional representation Hare-Clark electoral system, including the principle that “where there are two or more eligible candidates in relation to a casual vacancy, the vacancy shall be filled by a recount of the ballot papers counted for the person who, at the last election before the vacancy occurred, was elected to the seat in which the vacancy has occurred”.
Any law to which the entrenchment act applies has no effect unless it is passed by at least a two-third majority of the members of the Legislative Assembly, or passed by a simple majority of the Legislative Assembly and subsequently passed by a majority of electors at a referendum.
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