PROPORTIONAL REPRESENTATION SOCIETY OF AUSTRALIA

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18 Anita Street

BEAUMARIS VIC 3193

 

info@prsa.org.au

www.prsa.org.au

2014-06-25

 

Countback

 

Countback is a common term for the system under Tasmania's Hare-Clark electoral system used for filling casual vacancies in the House of Assembly since 1918. It was introduced by the Act 7 Geo. V No. 65, which received Royal Assent on 23 August 1917. Its use has been extended recently for all of Tasmania's municipal councils, and for Victoria's municipal councils except for the minority of them still retaining single-member wards. The Australian Capital Territory also uses countback, under Part 4.3 of Schedule 4 of the ACTís Electoral Act 1992. Click here for Tasmanian Assembly countback outcomes since 1965.

 

THE COUNTBACK PRINCIPLE:
This principle, used in the cases above, is that the candidate elected to fill a casual vacancy is, of all the consenting candidates that were not elected for the electorate of the vacating candidate at the general election that elected that vacating candidate, the candidate that receives, at a re-examination by the Electoral Commission of the quota of votes that elected the vacating candidate, after successive distribution of preferences of excluded candidates, an absolute majority of votes. See Tasmania's parliamentary website article on countback.

 

This principle ensures that the people that fill casual vacancies, unlike the unelected party appointees that fill casual vacancies by party appointment in the Senate, under Section 15 of the Australian Constitution, or in all mainland Legislative Councils except Western Australia's, have all been directly elected by the people. Countback was enacted after John Humphreys urged it in his 1915 visit to save STV.

 

The only means provided for filling Hare-Clark vacancies in Tasmaniaís House of Assembly before 1919 was a poll to elect one person by the whole electorate, which was obviously inconsistent with the PR method used at the General Election. Countback also usefully increases votersí choices, as it encourages parties to nominate more candidates than just the bare minimum number from their party that they believe will be elected. removed that inconsistency.


If a by-election poll were to be held for the whole electoral district for just the vacated seat, all the voters that had originally elected the remaining representatives would be voting, and would massively outnumber the voters that had lost the representative they had elected.

 

One common criticism of countback is that the candidates often elected received far fewer first preference votes at the original election than some candidates at that election that were elected neither then nor at the countback. That criticism totally misses the point that countback is, and should be, totally confined to implementing the wishes of the electors whose representative has vacated the seat. If a countback system is in place, candidates seek like-minded fellow candidates to stand with them so that their voters can be asked to give their next preferences to those candidates so they will be available as replacements if the elected candidate has to vacate his or her seat. Sometimes that like-minded candidate will be actually elected instead of the person that expected to be elected, but that is solely a result of voters being given a wider choice and using it as they see fit.

 

A second common criticism of countback is that it is dependent on the ballots of those voters that were enrolled at the time the election at the start of the term in question was held, and that it excludes extra enrolments since then. The criticism unfortunately ignores the importance - for equity, balance and consistency - of having all the representatives for the term in question representing the same balance of views that were set up at the time of the main election. If it is so important that one of the representatives should represent later electors just because the predecessor has vacated his or her seat, all the other continuing representatives should also face election every time there is any vacancy, but that would obviously be a disruptive and haphazard approach.


A third, less common, criticism is that countback rules should be changed so that countback does not confine its examination of the votes cast at the preceding poll to the quota of votes that elected the vacating candidate, but instead goes beyond that to include the ineffective residue of votes at that poll that did not form part of any quota, and was, by definition, slightly smaller than the Droop quota used in modern PR systems. This criticism appears to be motivated by a belief that those voters - who were the only voters that had no effect on the outcome at the preceding poll - should be allowed to participate in the outcome of the countback. Unfortunately, that belief is inconsistent with countback's basic principle, which is that the replacement for a vacating person should be based solely on the vote of the voters that originally elected that person, so the PRSA regards this claim as a misconception.

 

DETAILS & EXAMPLES:

  • Tasmania's current consolidated Electoral Act 2004 (No. 51 of 2004) replaces its Electoral Act 1985, which was the first consolidation made since the original Electoral Act 1907 (7 Edw. VII No. 6). Scrolling down below shows extracts relating to COUNTBACK from the Electoral Act 1985. Section 231 of that Act, whose effect is continued in Section 231 of the 2004 Act, provides for countback.
  • Section 233 of the 1985 Act, whose effect is continued in Section 232 of the new and current Act, was introduced to give the Parliamentary Leader of a Party certain choices if there is no continuing candidate available from that Party, but such a case has not arisen since countback was introduced in 1918. Access Tasmaniaís official election reports, which detail Assembly countbacks from 1942 onwards.
  • View the atypical countback scrutiny in Tasmania that first elected Dr Bob Brown.

 

 

AN ACT to provide for the holding of elections to elect persons as members of the Tasmanian Parliament, to regulate the conduct of those elections, to provide for the enrolment of electors for the purposes of those elections, to repeal the Electoral Act 1907 and other enactments, and to provide for related matters.

[Reserved 5 June 1985]

[Royal Assent 21 August 1985]

BE it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: -


PART I

PRELIMINARY

1 - This Act may be cited as the Electoral Act 1985.

2 -      (1) This Act shall be reserved for the signification of the Sovereign's pleasure thereon.

(2) This section and section 1 shall commence on the day on which a proclamation of the Governor signifying the Sovereign's assenting to this Act is notified in the Gazette.

(3) Except as provided in subsection (2), this Act shall commence on such day after the day referred to in that subsection as may be fixed by proclamation.

* * * * * * *

 

PART IX

 

FILLING VACANCIES IN THE ASSEMBLY

231 - ( l ) Wherever a vacancy occurs in the seat of a member of the Assembly otherwise than because of -

(a) the resignation of the member;

(b) the dissolution of the Assembly or the expiry of the term for which members of the Assembly were elected at an Assembly general election; or

(c) the failure or partial failure of an election in respect of an Assembly division, the Speaker of the Assembly shall, by notice signed by him, inform the Governor that the seat has become vacant.

(2) Where the Governor receives -

(a) a notice under subsection ( 1 ) informing him that a seat in the Assembly has become vacant; or

(b) the resignation of a member of the Assembly pursuant to section 15 of the Constitution Act 1934, the Governor shall inform the Chief Electoral Officer who shall, if satisfied that it is practicable to fill the vacancy as provided by this section, publish in at least 2 newspapers circulating generally in the Assembly division concerned a notice in accordance with the prescribed form to the effect that the seat of that member has become vacant.

(3) Where a seat representing an Assembly division becomes vacant and the vacancy is notified in accordance with subsection (2), a person who -

(a) was a candidate at the election to fill all the seats for that division last held before the vacancy occurred;

(b) did not withdraw from, and was not elected at, that election; and

(c) is still qualified under the Constitution Act 1934 to be elected as a member of the Assembly, may, subject to this section, nominate himself as a candidate for the vacant seat.

(4) For the purposes of subsection (3) (c), a person is qualified under the Constitution Act 1934 to be elected as a member of the Assembly, notwithstanding that -

(a) he was not, at the time of the occurrence of the vacancy, living in Tasmania; or

(b) he has not, for a period prescribed by section 14 (1) of that Act, been living in Tasmania between the date of the election referred to in subsection (3) and the date of the occurrence of the vacancy.

(5) A person may make a nomination under subsection (3) -

(a) by delivering or posting his written consent to act, if elected; or

(b) by signifying his consent to act in the event of his election by ordinary message sent by telegram, telex, or other electronic means, to the Chief Electoral Officer, but the Chief Electoral Officer shall not receive any such consent after noon on the tenth day after the day on which he published notice of the vacancy in accordance with subsection (2).

(6) Where a nomination under subsection (3) is made otherwise than by telegram, telex, or other electronic means, it is not valid unless made in the prescribed form by the nominating candidate and unless his signature is witnessed by an elector.

(7) Where such a nomination is made by a message by telegram, telex, or other electronic means, it is not valid unless it is verified in the prescribed manner.

(8) Where the Chief Electoral Officer receives a nomination or nominations made under subsection (3), the vacant seat concerned shall be filled as provided by Schedule 5.

(9) A reference in this section to the election last held to fill all the seats for an Assembly division includes a reference to such an election held before the commencement day.

232 - ( 1 ) Subject to section 231 and Schedule 5, the Chief Electoral Officer shall make such arrangements for the re-counting of votes and the reallocation of preferences under that Schedule as may be prescribed by the regulations.

(2) A person who has nominated for a vacant seat as provided in section 231 may appoint one scrutineer to represent him at the re-counting of votes and reallocation of preferences under Schedule 5.

233 - ( 1 ) Whenever -

(a) a vacancy occurs in the seat of a member of the Assembly otherwise than because of -

(i) the dissolution of the Assembly or the expiry of the term for which members of the Assembly were elected at an Assembly general election; or

(ii) the failure or partial failure of an election in respect of an Assembly division; and

(b) it is impracticable to fill the vacancy under the provisions of section 231 and Schedule 5 because there are no available candidates who belong to the same registered party as the vacating member, the Parliamentary Leader of the registered party to which the vacating member belonged may, by notice in writing to the Chief Electoral Officer, request that an election be held to fill the vacancy, and the Chief Electoral Officer shall, as soon as practicable after receiving such a request, report the request to the Governor.

(2 ) As soon as practicable after a report under subsection ( 1 ) is received by the Governor, there shall be issued by the Governor a writ, directed to the returning officer of the division in respect of which the relevant vacancy has occurred, for the election of a person to fill that vacancy.

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Tasmania

Electoral Act 1985

SCHEDULE 5

Section 231 (8)

 

METHOD OF FILLING VACANCY ARISING IN THE HOUSE OF ASSEMBLY

1 - In this Schedule-

(a) a reference to a consenting candidate, in relation to a vacant seat in the Assembly, is a reference to a person who nominates himself for the vacant seat as provided in section 231;

(b) a reference to the relevant election, in relation to a vacant seat, is a reference to the election last held to fill all of the seats for the Assembly division which the vacating member formerly represented in the Assembly;

(c) a reference to the vacating member is a reference to the member whose seat in the Assembly has become vacant; and 

(d) a reference to the vacant seat is a reference to the seat of the vacating member.

2 - If there is only one consenting candidate, the Chief Electoral Officer shall immediately-

(a) declare the candidate to be duly elected as a member of the Assembly to fill the vacant seat; and

(b) by writing under his hand notify to the Governor the election of the candidate.

3 - If there are 2 or more consenting candidates, the Chief Electoral Officer shall, within 7 days after the date fixed for the receipt of nominations, proceed to ascertain in the manner provided by clause 4, by an examination of all the completed ballot-papers counted at the relevant election for the member whose seat has become vacant and the ballot-papers directed to be counted for the vacating member as so provided, which of the consenting candidates is to be elected to fill the vacant seat.

4 -       (1) In this clause, a reference to the completed ballot-papers counted for the vacating member is -

(a) where, after the first preferences were counted at the relevant election, the number of first preferences recorded for that member was equal to or exceeded the quota required for election to the Assembly - a reference to all the ballot-papers on which those first preferences were recorded; and

(b) in any other case - a reference to all the completed ballot-papers counted for that member at the time of his election, including ballot-papers relating to votes that were transferred to him.

(2) Where:

 

(a) the member whose seat has become vacant was, by virtue of clause 11 of Schedule 3, declared elected at the relevant election after the candidate who was lowest on the poll at that election has been excluded from the counting; and

(b) the votes obtained by the excluded candidate were not required to be transferred to the candidates next in the order of the electors' preferences, so many of those votes as would have been transferred to that member of the votes of that member, if the votes of the excluded candidate had been transferred to the candidates next in the order of the electors' respective preferences, shall, for the purposes of this clause, be deemed to have been so transferred to, and to be obtained by, that member and the completed ballot-papers representing those votes shall be counted for that member.

(3) The ballot-papers counted, or by subclause (2), directed to be counted, for the vacating member shall be examined, and all the votes obtained, or deemed to have been obtained, by him shall be transferred to and counted for the consenting candidates first or next in the order of the electors' respective preferences.

(4) The votes obtained as first preferences by the vacating member at the relevant election shall be transferred to the next preferred candidate at that election, with the transfer value of each of those votes being treated as "1", and the other votes (if any) of the vacating member shall then be dealt with in the order of the transfers in which, and at the transfer value at which, he obtained them.

(5) Each of the transfers which takes place under subclause (4) shall be deemed for the purposes of this Schedule to be a separate transfer

(6) For the purpose of determining which consenting candidate is first or next in the order of the electors' preferences-

(a) the name of, and first choices recorded at the relevant election for, an excluded candidate who is a consenting candidate at the election to fill the vacant seat shall, for the purposes of that last-mentioned election, not be omitted from any completed ballot-papers transferred to the vacating member, but shall be counted for that consenting candidate; and

(b) any candidates who were declared elected at the relevant election or who are not consenting candidates shall be disregarded and the order of the electors' preferences shall be determined as if the names of those candidates bad not been included on the ballot-papers.

(7) Where, in relation to a completed ballot-paper, it is found that there is no candidate opposite whose name a number has been placed other than a candidate:

 

(a) who has already been declared elected;

(b) who is not a consenting candidate; or

(c) whose name must, by virtue of section 187 (6) (b), be omitted from the ballot-paper when determining the order of the electors' preferences, the ballot-paper shall be set aside as exhausted.

(8) After the number of votes in favour of each consenting candidate has been ascertained in accordance with the preceding provisions of this clause, the method of counting votes set out in Schedule 4 where one member only has to be returned for a division shall, with any necessary modifications, be applied and followed, and the Chief Electoral Officer shall declare the consenting candidate who obtains an absolute majority of the votes within the meaning of that Schedule to be duly elected to fill the vacant seat.

(9) Where at any time it becomes necessary to excluded a consenting candidate, and 2 or more consenting candidates have the same number of votes and are lowest on the poll, then whichever of those candidates was lowest on the poll at the last count or transfer at which they had an unequal number of votes shall be first excluded, and if those candidates have had an equal number of votes at all preceding counts or transfers, the returning officer shall decide which consenting candidate shall be first excluded.

(10) As soon as practicable after declaring a consenting candidate to be elected as provided in subclause (8), the Chief Electoral Officer shall by writing under his hand notify the election of that candidate to the Governor.

5 - Where the seat of a member of the Assembly becomes vacant and the vacating member was himself elected under the provisions of this Schedule or of section 132A of the Electoral Act 1907 (as in force immediately before the commencement day):

 

(a) the Chief Electoral Officer shall, for the purpose of filling the vacancy, examine the ballot-papers that, at the relevant election, were counted for the member in whose place the vacating member was elected (including voting-papers representing votes transferred to the last-mentioned member); and

(b) the foregoing provisions of this Schedule shall accordingly be construed subject to paragraph (a).

6 - A reference in this Schedule to the relevant election includes, where appropriate, a reference to an election held before the commencement day.

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