Saturday, 1 June 2013

How to Hold an Election

From an electoral perspective, not much is happening around this time of year. The initial election buzz has worn off the media, and there won't be any solid stuff to write about candidates or interesting seats until the writs are issued in August and we know who we've got on the ballots.

There is, however, plenty to write about still. The problem is that most of the useful (and plenty of useless) analytical stuff has either already been covered here (past voting trends, margins etc.) or is not yet available (final polling data etc.).

I could (and still might) get some more ABS maps and compare various demographics with past voting trends to confirm or refute the common impressions that, for example, the elderly more often vote for the Coalition and urban populations regularly vote Labor. However, the results will be a little vague as a result of trying to match ABS statistical divisions with electorates. If I have the time I could actually look up the actual census data for a more detailed and accurate analysis.

I could also do a seat-by-seat breakdown for each state and look in detail at voting history, attitudes and demographics, so look forward to that! (I'll try to keep it interesting for people more normal than myself, I promise.)

This week, however, I'm going to look at how an election is actually run. I've already covered how to vote, and I'll probably return to that closer to the election. This is the other half of that - the rules that govern everything except the voters.

Two Thirds of the Way to Anarchy:

The Government cannot just have an election of its own free will. If it could, then it could also not have an election of its own free will. As everyone knows, there are certain rules that govern federal and state/territory elections. For example, under normal circumstances there must be an election within three years and ninety-eight days of the return of the writs for the last election (we'll get to writs later). These rules are laid out in the constitution (or: The Commonwealth of Australia Constitution Act) which serves as the first law of the country, and upon which every other law, bill, political position, electoral process and just about everything else is based.

So the first question is: 'why is the maximum time between an election (under normal circumstances) three years and ninety-eight days'. It does seem a little odd, but that is because there are actually four periods covered. The first comes from Section 5 of the Constitution:
"After any general election the Parliament shall be summoned to meet not later than thirty days after the day appointed for the return of the writs."
The Parliament then lasts for a maximum of three years, as ascribed by Section 28. This is measured from the first sitting:
"Every House of Representatives shall continue for three years from the first meeting of the House, and no longer, but may be sooner dissolved by the Governor‑General"
This makes three years, thirty days. The next ten are the maximum delay between end of the sitting Parliament and the issuing of the writs for the next election. Or, as Section 32 puts it:
"After the first general election, the writs shall be issued within ten days from the expiry of a House of Representatives or from the proclamation of a dissolution thereof."
The final fifty-eight days are the maximum delay between the issuing of the writs and the election. This comes not from the constitution, but form the Commonwealth Electoral Act 1918 (or CEA), and is a combination of Section 156, subsection (1):
"Subject to subsection (2), the date fixed for the nomination of the candidates shall not be less than 10 days nor more than 27 days after the date of the writ."
and Section 157:
The date fixed for the polling shall not be less than 23 days nor more than 31 days after the date of nomination
However, note that I always qualified the timeline with the phrase "under normal circumstances". That was my not-so-subtle way of covering myself, because there is one particular situation where this changes. The secret is in that little introductory clause for CEA Section 156, Subsection (1):

"Subject to subsection (2),..."

Well, subsection (2) states that:
Where a candidate for an election dies, after being nominated and before 12 o'clock noon on the day fixed by the writ as the date of nomination for the election, the day fixed as the date of nomination for the election shall, except for the purposes of section 157, be taken to be the day next succeeding the day so fixed
In other words, if a candidate dies before midday on the day of nomination, the day of nomination is delayed 24 hours out of respect, and possibly to allow his/her name to be removed from the ballots.

This stretches the time between elections to three years, ninety-nine days. Now I know what you're thinking. You're thinking that a systematic, organised campaign of assassinating candidates before midday, each day from nomination day onwards could perpetually delay the election. You're thinking that with 849 candidates for the lower house in 2010 you could delay the election a further 849 days making it five years, two-hundred and seventeen days between an election, and that by then more candidates might have signed up, leading to a perpetual suspension of the legislative and executive branches of the Australian Government. You're thinking of laughing manically, building a secret lair under a volcano and hiring expendable henchmen.

Well, no, you can't. For one thing it's actually illegal to kill 849 people to delay a federal election. For another, subsection (2) prevents this. Twice. Lets say, hypothetically, that the date of nomination prescribed in the writs is a Monday. And let's assume, just for the sake of it, that the day after that is a Friday. Yes, its unnecessarily complicated and chronologically nonsensical, but what the heck. If a candidate dies before midday Monday, the deadline for nominations is delayed 24 hours until Friday.

Now, if someone dies before midday Friday, the nomination date is not pushed back another 24 hours to, lets say, Tuesday. There are two reasons for this. Firstly, this only applies if the candidate dies "before 12 o'clock noon on the day fixed by the writ".

Secondly, even if the second death did somehow enact the delay, the extension is worded to continue until "the day next succeeding the day so fixed" (i.e. the day after Monday (i.e. Friday)). It doesn't matter how many times the extension is applied, the delay only lasts until the day after the day fixed in the writs (which is the Friday (the day after the Monday) and not the Tuesday (the day after that))!
Now I have an urge to write coverage for the election of the President of the Supreme Council of Gallifrey and All Her Dominions...

Rightly Written Writs:

A writ is simply a formal order. In the case of a writ of election, it is the piece of paper that creates the election as a legal entity. In practical terms, this is the real calling of an election, and each writ will contain the dates for:
  • The the close of the rolls (i.e. the last date to enrole to vote) which is always 7 days after the writ (CEA s.115),
  • The nomination (i.e. the last day to put your name forward as a candidate) as outlined above,
  • The polling (i.e. the vote itself) which must be a Saturday (CEA s.158) 23 to 31 days after the nomination (CEA s.157)
  • The return of the writ (the date when the writ must be returned, effectively the end of the election) within 100 days of the writ (CEA s.159) which allows for 41 days after the election (including the 24 hour delay caused by the death of a nominee) during which to determine who won each seat and attach their names to the writ.
A writ takes effect from 6 PM on the day it is issued, and is issued by the Governor-General. The Governor-General has traditionally issued writs at the request and advice of the Prime Minister, although this is not a legal requirement and the writs could be issued today if the GG so desired. It is a bit misleading to say the PM calls an election, although the media will often report this as such.

One writ must be issued for each of the current states and territories. In the CEA, Section 154 they are each named specifically, which means if a new state or territory is added to the Commonwealth (as is allowed in the Constitution, Section 121) and the CEA is not updated, that state/territory will not get a vote. (Editor: This is probably to deal with cases like Norfolk Island.)

In the case of a general election (what I casually refer to as a federal election) all electoral divisions must be elected on the same day and the writs must all be returned by the same deadline (CEA s.160). (In the case of a by-election, writs can be issued for individual electorates or groups of electorates, and as such may have individual polling and return of writ dates.)

The Thing Upstairs:

The Senate, of course, does things differently. When do they ever not?

Each state's senators have their elections run on a different timetable to the lower house, and do not need to coincide with the lower house elections (although for simplicity they regularly do). Senators serve a 6-year term, and half are replaced every three years. A senator's term begins on July 1, and the election for that senate seat must be held in the year preceding the seat becoming vacant, ready for immediate switch over. All of this is laid out in Section 13 of the Constitution.

Writs for senate seats in each state are issued not by the Governor General, but by that state's Governor, according to Section 12 of the Constitution. Section 151 of the Commonwealth Electoral Act of 1918, however, states that the Governor-General will issue the writs for territories, and that these are tied to the lower house election.

Further, the Governor-General can dissolve the entire Senate, for example in a double dissolution as allowed under Section 57 of the Constitution, and each state must issue writs for their senators within ten days of this being announced under Section 12.

That all complicates things, so its a good job the Governors-General and state Governors tend to work so well together. A lot of this is a relic of federation, where individual states were concerned about losing their autonomy. In practice, the Governors tend to lump the Senate elections in with the House of Representatives where allowed by the timetables set out by the Constitution. 

Those who advocate fixed term elections (thus preventing politicians from "calling" an early election when they are most popular, or delaying when they are least) would generally advocate for a much simpler system where all federal senate seats are tied to House of Reps elections. But until then, politicians won't be "calling" elections at all, and the Senate will do as the State Governors direct.

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