A new feature of the NSW local government electoral system is being introduced right now across many NSW councils, finally implementing a legislative change made in 2014. This change will see vacancies filled by countback of the original ballot papers, rather than a by-election. While this is an improvement, the reform is limited in its application so that it won’t apply to all vacancies across the state.
Prior to this election, vacancies would normally be filled by a by-election. This was out of step with the proportional voting system new used to elect councillors across New South Wales. While a councillor is elected by a subset of voters in their ward, while other voters contributed to the election of other councillors, they would be replaced by the entire ward’s voters at a by-election. In practice this means that bigger parties would be in a position to win seats previously held by independents or minor parties without anyone changing how they vote. It can also be very costly for the local council, particularly for wards covering a larger share of the council.
The perfect example of both these problems was the 2017 Campbelltown City Council by-election. This was triggered by the death of independent councillor Fred Borg after the 2016 election. Campbelltown uses no wards, so the entire city went back to the polls. That’s an electorate roughly the size of a federal electorate, to elect a single councillor. Labor had won seven out of fifteen seats at the previous election, and easily won the by-election, giving them a majority on the council despite not winning a majority of votes or seats in 2016.
Another feature of the existing system is that there is discretion to waive the filling of vacancies where they occur in the last eighteen months of the council term. This is a handy saving of costs and avoiding the hassle for voters and electoral participants, but it’s not great for representation. It was particularly unfortunate in the last council term. Vacancies triggered after March 2019 were not filled, but the council term ended up being extended by fifteen months to December 2021. A majority of councils had last faced election in September 2016. For those councils, no vacancies were filled for more than half of the council term.
There are two alternatives to using by-elections to fill proportional representation vacancies. You either leave the vacancy up to the party (as is used for the Senate), or you count back the ballots used at the previous election. This method of countback is used for the Tasmanian and ACT assemblies, and is also used for proportional elections to Victorian local councils.
It has a minimal cost, and has no impact on voters. It doesn’t require the conduct of election campaigns. The only potential downsides is that it limits the range of options for people to fill the vacancy, since new candidates cannot nominate. It also means that people who ran for theoretically “unwinnable” seats could end up filling a seat, but that is probably something candidates and parties need to consider when choosing candidates in the future.
When the proportional representation system is implemented with above-the-line voting for groups (as is the case in most bigger NSW councils), most vacancies will flow to the next candidate in that group (if they have another eligible and willing candidate). Results may be a bit more unpredictable when all candidates run below the line (as is the case in smaller rural councils), but you’d expect candidates with some affinity will fill vacancies.
This countback system is definitely an improvement, but the NSW implementation has some baffling limitations.
Firstly, the council must resolve to implement the countback system at their first meeting after the general election (a meeting usually devoted to the election of the mayor and deputy mayor). If the council doesn’t make that decision, by-elections remain as the default. The regulations to use the countback system were not in place for the 2016 and 2017 elections, which is why we are only now seeing the implementation of a reform legislated in 2014.
Secondly, the countback provision only applies to vacancies created in the first eighteen months of the term. Any vacancies after that point are filled by by-elections, although it is still the case that vacancies in the last eighteen months are left unfilled. (By the way, this means that any councils voting to use countbacks will see no by-elections held in this term of council, since it is only due to last for 33 months).
I don’t see any value in any of these limitations. We can easily use countbacks for the entire term. I also don’t see why councils should have the ability to choose such a fundamental part of the electoral system when the threshold for changing the ward structure or the mayoral electoral system require a referendum. If countbacks are good, let’s implement them for every vacancy (assuming there are appropriate candidates to fill the position).
The countbacks reform may have been proposed for many years, but it was implemented following the state Joint Standing Committee on Electoral Matters (JSCEM) inquiry into the 2012 council election. The report of the committee mentions the Shires Association proposing a twelve-month limit on the use of countbacks in part due to concern about newly eligible voters (such as those who have just become old enough to vote) being able to participate. This isn’t a strong argument to me. Voters who have become eligible to vote since the last election effectively remain unrepresented until their first election, so I don’t see why this vacancy should be any different.
The requirement that councils make a binding decision about whether they use countbacks or by-elections at the start of the term was added by the government in response to the committee report, and is an improvement, but if countbacks are a good model (they are) they should be universal.
It’s also worth noting that Local Government NSW policy is for countbacks to be used for the first two years of the council term, with vacancies left unfilled for the last two years. That is a slight improvement, but I don’t see why countbacks can’t be used right up until the last months of a council term. We elect the original councillors for a full term. If the life circumstances of a candidate have changed, they can withdraw.
Some councils have already voted to approve countbacks. I put out a call to find out which councils have considered this issue, and found that Bathurst, Canterbury-Bankstown, Georges River, Hawkesbury and Inner West all approved the use of countbacks at their mayoral election meetings at the end of 2021. I expect it will be a popular choice, as it is much cheaper than the by-election alternative. I can only see councillors supporting the by-election option if they expect a vacancy that they think their side can grab, but it’s hard to predict which vacancies will arise in the next eighteen months.
If you are interested in this issue, I encourage you to contact your local councillors and urge them to support countbacks. Hopefully if most of the state’s councils adopt the new system we can lobby for it to become the universal method of filling vacancies from 2024.