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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

Australian Electoral Commission

Commonwealth Electoral Act 1918

1984

Governor-General appoints (s21)

Up to 7 years (s21)

A
B
(s25)

Electoral Commission of NSW

Parliamentary Electorates and Elections Act 1912 No 41

1928

Governor appoints (s21a)

To age 65 (s21aa(1))

A (21ab(2))
C
(s21ab(3)

Victorian Electoral Commission

Electoral Act 2002

1989

Governor appoints (s12) [i]  

Ten years [ii] (s12)

A [iii]
B
(s12-4(d))
C (s14)
D (s12)

Electoral Commission of Qld

Electoral Act 1992

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))

WA Electoral Commission

Electoral Act 1907

1987

Governor appoints on recommendation of Premier, who consults with parliamentary leader of all parties. (s5b)

Up to 9 years (s5b)

C
D (s5c)

State Electoral Office (SA)

Electoral Act1985

1973

On recommendation of both houses of parliament. (s5) [iv]

To age of 65. (s7(6))

A (s7(9))
C
D (s7(7))

Tasmanian Electoral Commission

Electoral Act 2004

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)

Elections ACT

Electoral Act 1992

1992

Cabinet ‘the executive’ appoints, consultation with every party leader and independent in parliament (s22)

Up to 5 years (s25)

A
C
(s29)

NT Electoral Commission

Electoral Act 2004

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)