Community Access to the Electoral Processes
in South Australia since 1850
A Research Report
Presented to the South Australian State Electoral Office
Dean Jaensch
Professor, School of Political and International Studies
Flinders University
2002
1
Community Access to the Electoral Processes in
South Australia since 1850
A Research Report
Presented to the South Australian State Electoral Office
Dean Jaensch
Professor, School of Political and International Studies
Flinders University
2002
Copies of this document are available from:
State Electoral Office
134 Fullarton Road, Rose Park, SA 5067
(GPO Box 646, Adelaide, SA 5001)
Telephone 61 8 8401 4300
Facsimile 61 8 8401 4333
DX Number DX 442, Adelaide
Internet http://www.seo.sa.gov.au
ABN 99 891 752 468
Teletype (TTY) 61 8 8332 9454
ISSN 1443 3621
Printed February 2003
I
Contents
Sources of illustrations
Acknowledgments
References and Abbreviations
Disclaimer
(i)
(ii)
(iii)
(iv)
1
2
7
Introduction
Access and representation
Basis, content and structure of the report
The Foundations for Representative Democracy
The precursor to representation
The first representation
- the 1850 Act; the 1851 Ordinance; the 1851 election
- the 1853 Constitution Bill; the 1855 election
The foundations established
- the Constitution Act 1855-56; the Electoral Act, 1855-56
10
10
11
11
13
14
14
The Development of Community Access 1857 - 2002
20
1.
The Franchise
1-1 Gender
Legislative Council
House of Assembly
1-2 Age
1-3 Aboriginal people
1-4 Citizenship
Legislative Council
1-5 Residency
Legislative Council
House of Assembly
1-6 War veterans
Legislative Council
House of Assembly
1-7 Prisoners
1-8 Legislative Council - property restrictions
1-9 One specific exclusion
1-10 Access to legislation
21
22
22
22
24
25
26
27
27
27
27
28
28
29
30
30
37
37
2.
Enrolment
2-1 Introduction
2-2 Enrolment procedures and processes
2-3 Revision of rolls
2-4 Public and secure
2-5 Joint State-Commonwealth arrangements
39
39
39
42
44
46
II
Contents
3.
The Voter and the Vote
3-1 Introduction
3-2 Mechanics of voting
3-3 Secrecy and security of the vote
3-3-1 Validity and secrecy of ballot papers
3-3-2 Proof of identity
49
49
49
50
50
51
4.
Extension of Voting Opportunity
4-1 Introduction
4-2 Polling days and hours
4-3 Absent voting
4-4 Postal voting
4-5 Pre-poll voting
4-6 Declaration voting
54
54
54
56
59
61
62
5.
Voting Assistance
5-1 Introduction
5-2 Static booths
5-2-1 Incapacity
5-2-2 Near the polling place
5-2-3 Provisional voting
5-2-4 The right to attend
5-3 Voting at other than static booths
5-3-1 Declared institutions
5-3-2 Mobile polling
64
64
64
64
66
66
67
68
68
69
6.
Voting Systems and Methods
6-1 Introduction
6-2 Voting systems in South Australia
6-2-1 First past the post (FPP)
6-2-2 Contingency / Preferential
6-2-3 Preferential
6-2-4 Proportional representation: Legislative Council
6-3 Voting methods
6-3-1 Introduction
6-3-2 Both Houses
6-3-3 Legislative Council
6-3-4 House of Assembly
71
71
72
72
73
77
77
81
81
82
85
86
III
Contents
7.
Candidates and Members
7-1 Introduction
7-2 Nomination process
7-2-1 Eligibility
7-2-2 Nominations
7-2-3 Limits on activities
7-3 Costs of participation
7-3-1 Costs of elections
7-3-2 Candidates’ costs
7-3-3 Expenditure limits
7-4 Disqualification of Member
89
89
89
89
92
93
95
95
96
98
103
8.
Electoral Courts
8-1 Introduction
8-2 Courts of revision
8-3 Courts of Disputed Returns
105
105
105
107
9.
Electoral Offences
9-1 Introduction
9-2 Bribery and "undue influence"
9-3 Misconduct
9-3-1 by voters
9-3-2 by candidates
9-3-3 by electoral staff
9-3-4 forgery, misrepresentation, "destruction"
9-3-5 malpractice by scrutineers
9-3-6 miscellaneous
111
111
112
115
116
118
119
121
123
124
10. Advertising, Public Information and Education
10-1 Introduction
10-2 Electoral publicity
10-3 Misleading advertising
10-4 Advertising, education and research
127
127
128
133
136
11. Political Parties
11-1 Introduction
11-2 Registration
139
139
140
12. "One Person, One Vote, One Value"
12-1 Introduction
12-2 One person, one vote
12-3 One vote, one value
144
144
145
148
IV
Contents
13. Electoral Apportionment and Electoral Boundaries
13-1 Introduction
13-2 The first electoral boundaries
13-3 Representation of interests
13-4 Legislative Council redistributions
13-5 House of Assembly redistributions
151
151
151
152
155
160
14. Referendums
14-1 Introduction
14-2 Referendums in South Australia
14-3 Referendums and access
185
185
186
190
15. State Electoral Office
15-1 Introduction
15-2 Structure, processes and roles
15-3 Staffing
192
192
193
199
16. Participation Issues
16-1 Introduction
16-2 Voluntary enrolment
16-3 "Compulsory" voting
202
202
202
204
17. Technology: Gateway to the Future?
212
18. Conclusion
216
Appendix
Electoral Acts; relevant Constitution Acts
221
221
Bibliography
229
V
Sources of illustrations
No. Illustration
Page No.
1. Election Night outside The Advertiser office ca. 1899 Mortlock Library of
Front cover
Australiana B 8821 [Photograph]
2. Constitution Act 1855-56 No. 2
Inside front cover
3. Electoral Act 1855-56 No. 10
Inside back cover
4. 2 February, 1857 Flinders. The first House of Assembly writ issued for the only
Back cover
district to have retained its name from 1857-2002. Writ returned – election "uncontested".
Writ issued by Governor Sir Richard Graves MacDonnell, and witnessed by Chief Secretary
Boyle Travers Finniss. Early writs were made of parchment until 1893.
5. John Henry Chinner, ‘Wrecked: bad pilotage’ Quiz, volume 5, number 215, 6 October 1893,
23
p.9 Mortlock Library of Australiana [Cartoon]
6. ‘Register, Register’ The Register, 18 June 1856, p. 2 Mortlock Library of Australiana [Newspaper clipping]
27
7. Electoral Enrolment card, produced by the Australian Electoral C ommission and the State Electoral
39
Office, 2002 [Pamphlet]
8. Interstate visitors voting at the State Electoral Department for a poll in their home State,
50
State Electoral Department Annual Report 1991-1992 [Photograph]
9. Postal Application form for voting paper(s), State of South Australia, produced by the State Electoral
60
Office, 2002 [Pamphlet]
10. ‘How to Vote’, Border Watch (SA Regional) 30 January 2002 p. 4 [Photograph]
62
11. ‘Mobile Booth Locations’, State Electoral Office advertising campaign, 2002 [Advertisement]
70
12. "Results" cards, attached to writs issued 31 March 1896, for the electoral districts of
73
Barossa (left) and Victoria (right) [Results card]
13. Catherine Helen Spence, women’s rights agitator and writer, 1825-1910 ca. 1900 Mortlock
80
Library of Australiana B 11192 [Photograph]
14. Letter of nomination of Horace Dean for the electoral district of Barossa, dated 16 February
92
1857 at Angaston [Letter]
15. Coach and Horses Hotel, Salisbury ca. 1854 Mortlock Library of Australiana B 7169 [Photograph]
106
16. ‘Soliciting votes prohibited in a Polling Booth’, Electoral Office, W. L. Hawes, Government Printer,
114
Adelaide ca. 1960 [Sign]
17. Port Germein: the early settlement with an election banner on display ca. 1880 Mortlock Library
128
of Australiana B 32149 [Photograph]
18. ‘So we’ve made it easy to get it right’, State Electoral Office advertising campaign, 2002 [Advertisement]
136
19. ‘In anyone’s language one vote does count’, State Electoral Office advertising campaign, 2002
145
[Advertisement]
20. Electoral Districts Boundaries Commission official ‘seal’
181
21. ‘The referendum’ Observer, 25 June 1898, Mortlock Library of Australiana [Newspaper clipping]
186
22. ‘Electoral Department’ Hansard Legislative Council, 1913 p. 53 [Excerpt]
193
23. William Robinson Boothby ca. 1914 Mortlock Library of Australiana B 8073 [Photograph]
194
24. ‘Value your right to vote enrol now!’, State Electoral Office advertising campaign, 2002 [Advertisement]
203
25. ‘eVolution not revolution’, Electronic Voting Status Report 2, September 2002, Victorian Electoral
212
Commission and Australian Electoral Commission
Acknowledgments
- Photographs and newspaper excerpts from the Mortlock Library of Australiana collection are published
courtesy of the State Library of South Australia.
- The Border Watch has provided photographs from their collection.
- The Constitution and Electoral Acts, and excerpts from Hansard are published courtesy of the South
Australian Attorney General’s Department.
- Material has also been provided courtesy of the Australian and Victorian Electoral Commissions.
- The State Electoral Office has contributed photographs and materials from its collection.
(i)
Acknowledgments
I owe a debt of gratitude to Steve Tully, the Electoral Commissioner for South Australia, for
the opportunity to undertake this research project and to prepare this report. The task was
challenging, but also fascinating and informative. I appreciated his encouragement, and his
constructive criticism at all stages.
For invaluable research assistance at various stages, my thanks to Glynn Evans, who read
every word of every relevant Act and prepared the starting point - an index to the legislation;
to Tanya Liebrecht for her cheerful willingness to conduct primary research into some very
esoteric topics; and who, with Jade Bruss, Di Walker, and David Gully, provided very valuable
assistance with editing, checking, copy-editing and MS preparation; and to the staff of the
South Australian State Electoral Office (SEO), all of whom have been supporters of this
work.
My special thanks to Jane Peace, the Research Officer in the SEO, whose knowledge of
electoral processes provided a research source on its own, whose commitment to the project
was very supportive, whose detailed reading of drafts was invaluable, and whose involvement
in the electoral processes of the State is appreciated by all.
(ii)
References and Abbreviations
This report is essentially based on legislation of the Parliament of South Australia.
It contains constant references to Acts of the Parliament.
A full bibliography of the Acts relating to this report is provided in the Appendix.
The references to Acts in the text use the following abbreviations.
Electoral Act (EA),
Constitution Act (CA),
Miscellaneous Act (MA).
by year, number of Act, Section(s).
Hence, for example, (EA 1859, No. 34, Ss 14, 15)
The report also utilises the debates on the Bills which resulted in the Acts, especially, but not
exclusively, the Second Reading speeches. These were used to establish the intentions of the
Government, the Opposition and, on occasions, private Members in regard to the legislation.
This use of "Hansard" is referenced in the text as:
South Australian Parliamentary Debates (SAPD)
Legislative Council (LC)
House of Assembly (HA)
Year: Page
Hence, for example, (SAPD HA 1858: 1347)
South Australian Parlamentary Paper (SAPP).
All other references to primary materials are spelt out in full.
(iii)
Disclaimer
This report is the responsibility of the author.
The report, and especially the evaluations within it, may, or may not be, the view of the
Electoral Commissioner, or the State Electoral office, or of any person who is a member of
staff of that office.
Every effort has been made to check the accuracy of the data and references to Acts. Any
errors remaining are the responsibility of the author, who would appreciate advice of any
necessary corrections.
(iv)
Introduction
This report has, as its major focus, the development of access by the community to the
electoral structures and processes, and the quality of representation in those structures and
processes, since the inauguration of representative democracy and responsible government in
South Australia in 1857.
The Acts which originally established the structures and processes were remarkable for
their democratic content. In the context of the mid-nineteenth century, in comparison with
nations such as Britain and America, the first Constitution and Electoral Acts introduced
elements of a political system which were seen, by many observers, as "radical democracy".
Certainly, these two Acts can be described as establishing a substantial foundation for a
modern democratic system. The formal titles of the Acts were:
An Act to establish a Constitution for South Australia, and to grant a Civil List to Her
Majesty (1855-6 No. 2), reserved January 4, 1856, proclaimed May 24
1856;
An Act to provide for the Election of Members to serve in the Parliament of South
Australia (1855-6 No. 10), assented to April 2, 1856.
These Acts were the products of the precursor to representative democracy - a Legislative
Council which was part-elected, part-appointed - the "Hybrid Legislative Council". The
process towards responsible government began at the settlement of the colony in 1836. The
first section of this report outlines the structures and processes of politics in this
developmental period from 1836 to the passage of the establishing Acts, and to the first
election in 1857.
The key research bases for the bulk of the report - the electoral structures and processes
from 1857 - were the Acts of the South Australian Parliament which related to electoral and
representational matters. These are put into the context of the speeches in the Parliament on
the Bills which produced the Acts, hence clarifying the intentions of those parliamentarians
who moved and debated the Bills. The foci of the report, then, are the policies which became
Acts of the Parliament, and the consequent structures, programmes and processes related to
political representation.
The form of the report is chronological and thematic - tracing the development within
the legislature of a range of themes of representation from the establishment of
representative democracy in 1857 until the elections for the 50th parliament in 2002. For
each theme, the original structure/process is described, with subsequent developments
outlined and analysed. Parallel to this is a summary of the intentions of the mover(s), the
supporters of the proposals and, on occasions, the opponents, drawn from the second
reading speeches and, where relevant, the subsequent debates in the Parliament.
For each theme, then, the report provides a summary of the development, a commentary
on this process, and an evaluation of the current legislative framework. The Conclusion to
the report provides an overview, analysis and assessment of "community access", and of the
quantitative and qualitative components of representation.
These three components of this report contain different elements. The summaries of
the legislation are usually in the form of direct quotations from the Acts. The commentaries
are included to provide a necessary context, or to interpret or explain the formal language of
the Acts.
1
Introduction
Evaluations are very different in nature and content. They offer an assessment, by the
author, of the extent to which the structures and processes referred to enlarged the extent of
community access and increased the quality of representative democracy in South Australia.
These evaluations may, or may not be, the view of the State Electoral Office, any person who
is a member of the SEO. They are the views, and the responsibility, solely of the author of
this report.
For that reason, the interpretations by the author are distinguished within the report by printing in
this narrow font.
The essential focus, then, is on the "provisions for access" - the legislative bases of
representative democracy in South Australia.
There is another "side" to the representation equation - the extent to which the citizens
of South Australia are aware of, understand, and utilise these structures and processes to
achieve maximum access. This issue is not part of this report. It requires a substantially
different research programme.
Access and representation
The South Australian polity is based on the principles of representative democracy. On rare
occasions, these have been supplemented by one component of direct democracy referendums.
Representation is the process where one group of persons (or a single person) has the
authority to speak and act on behalf of a larger number of people. Representative
parliamentary democracy is based on the principle that elected members of a parliament have
the authority to speak for, and act for, and on behalf of, the citizens as a whole.
Access is a core component of representation. In one sense, access is
the ability of a political actor - individual or group - to obtain the
attention of political decision-makers to the communication of
demands. It is thus the precondition of the exercise of political
influence, though it is not a sufficient condition for its exercise (Roberts
1971: 2).
In this sense, for the ordinary citizen, access may be seen as a very simple issue, relating to
the ease of contact with his or her member of Parliament. In the context of electoral
structures and processes, within a system of democratic representation, access is a far more
complex concept.
In the much broader sense, access refers to the right of every citizen to play a full role
in the processes of representative democracy. It refers to the ease with which this access can
be exercised, and to the equality of access - every citizen should have an equal right to
electoral involvement. These factors, and others, provide some of the bases for the value
judgements in the evaluations in this report.
A system of representative democracy involves a constellation of factors and issues, each
of which, in some way, relates to electoral processes. Access is a central issue in the right to
vote, the franchise. This is the foundation stone of a democratic system. Hence the
"quantity" and "quality" of the access of citizens to a right to vote is an important measure
of the degree of democracy which is provided by the system. Any restriction on this
fundamental right needs to be carefully justified.
2
Introduction
The right to vote is an important component of access; the principle of an "equality"
of the vote is another. A democratic principle of "one person, one vote, one value" needs to
be applied to an electoral system to assess whether the access of the citizens is fair and just.
A caveat is necessary in regard to these, and other issues, in regard to access. To consider
and evaluate the quality of representative democracy and of the access of citizens to the
electoral processes, over a period of 150 years, requires an historical context. The system of
representative democracy was introduced into South Australia in the 1850s. The components
of that system need to be analysed not only in the context of a modern expectation of
democracy, but also in the context of the expectations in the 1850s, in the 1890s with the
introduction of votes for women, in 1901 following Federation, in the 1950s, and so on.
Democracy has been a developing process in the application of an ideal.
Democratic practices in many other parts of the world were still embryonic when South
Australia incorporated representative democracy, democratic election structures and
processes in the 1850s. One level of evaluation is to place what was achieved in South
Australia against the theories, policies and practices elsewhere. At the same time, these
achievements should also be assessed in terms of modern democratic principles and
practices.
The question of the quality of access, and hence the quality of democratic
representation, needs to be analysed in terms of a much wider set of issues than the right to
vote. A citizen should have a guarantee that his or her vote is secret, that the process is as free
from corruption as possible, and that there is a formal system in place for an accurate and
secure electoral roll. A citizen should be able to expect to cast a vote without undue
hindrance - there should be an easy access to the exercise of the franchise. These aspects
involve a further range of components which were considered by the parliaments over 150
years, and are still being considered today, especially with the development of new
technology and issues relating to its applications in elections, such as internet voting.
Representation also involves the systems and methods of voting which were selected and
imposed by the parliaments. Did these structures and methods increase or decrease the
quality of access for the citizens? Were they designed to reflect the opinions and choices of
the voters, or were they designed to offer advantages to some electors only? These questions
involve a range of issues, including the apportionment basis of the electoral system.
A system of representative democracy naturally involves representatives. Thus the issue
of access by the citizen includes a further range of components relating to candidates,
groups, and, after 1910, political parties, in the electoral processes. What laws were made to
"cover" these components? What access to the candidates, groups and parties was granted to
the citizens, and under what terms? What were the processes of candidate nomination and
candidate behaviour?
Access needs to be guaranteed, and guaranteed to be fair, just and honest. Hence one
focus is concerned with attempts to ensure that the structures and processes of elections,
which establish the quality of access, are free of corruption and malpractice. A democratic
election system requires a democratic base and a democratic administration. In this, there is
what appears at first sight to be "closed circle":
3
Introduction
- Elections are the process whereby the citizens decide who will
represent them in the parliament;
- Parliaments set the rules and processes for elections, and decide what
will be written into the legislation;
- This legislation establishes the structures and processes of elections.
Who, then, looks after the democratic interests of the citizens? In fact, while the nature and
quality of the electoral processes, in theory, are in the hands of the voters, through their
selection of their representatives, they are, in practice, in the hands of the parliaments and,
after 1910, the political parties which form the governments.
The administration of these structures and processes is another key component of, and
measure of, a democratic system. How well has South Australia been served by its electoral
administration? To what extent was there an independent administration of what is, after all,
the most important component of a democratic system - democratic elections?
Other issues relating to access are included in this report. South Australia is part of a
federal system in which there is, as the United States of America shows, a potential for
complexity, variety, even contradiction, in the electoral laws across the Federal and State
arenas. To what extent has this affected access? To what extent have agreements been
developed, especially since Federation, to overcome any problems for access?
There is also a major theme in this report on "equality of the vote", encompassing the
principle of "one person, one vote, one value", especially as applied in the electoral
distributions and redistributions over the 150 years. No other question has convulsed the
parliaments and its members, and the candidates and parties, more than this.
The question of "compulsory voting" is a component of access, as is the emphasis
given to the information flow to the citizens, and the question of who should offer the
"political education".
Overall, then, the concept of democratic political representation is broad, complex and,
in the context of this report of the history of 150 years of representative democracy, still
developing.
One of the most detailed and respected analysts of representation, Hannah Pitkin in
her The Concept of Representation (1967), suggested four headings for the analysis, application
and assessment of the concept. First, representation as authorisation relates to the transfer of
authority from the citizens to the representatives. By the process and the act of a citizen
choosing a representative, or a polity choosing its representatives, there can be said to be an
authorisation by the person or the people to the representatives to act on their behalf. Hence
the means, the procedures and the processes by which this occurs is a central component of
a democratic society. Many questions for this report relate to how the authority was
transferred - the processes and procedures of the election systems.
Five types of issues permeated the debates about this "transfer of authority" through
election systems, each of which produced markedly differing answers from various people,
groups and parties in the history of South Australia. The first, broad issue of the "right to
vote" included questions such as: who should have the right to vote; what should be the
procedures for enrolment; how should the polling be conducted; should there be a free and
secret vote; should there be a right, or a compulsion to vote?
4
Introduction
A second set of issues concerned the issue of equality - should all votes count equally?
This became one of the most pervasive and controversial issues over 150 years. It concerns
the fairness and representativeness and justice of electoral geography; and the extent to which
the fundamental democratic principle of "one person, one vote, one value" should be
applied. The third set of issues concerned the arithmetic of the electoral system - the relation
of votes to seats: how should the votes be counted; which system should be applied to
translate votes into seats?
The fourth set of issues was concerned with the electoral laws: should they bolster and
extend the democratic nature of the process, guarantee security and secrecy of the vote, and
the validity of the process? The fifth set of issues related to candidates: who should have the
right to stand as a representative of the people, and under what conditions?
Each of these sets of issues was addressed in the original, 1855-56 Acts. Each was then
addressed further, amended and developed, by the various Constitution and Electoral Acts
in the following 145 years. This report traces these amendments and developments, from
1857 to 2002.
The second heading, accountability, refers to holding public officials accountable for
their actions and decisions. That is: "In modern democratic theory, the electoral system is
said to act as a device for keeping representatives both responsive and responsible to the
electorate" (Maddox 1996). It refers to those components of the election system which
protect the citizen from unfair and unjust practices and procedures, and which protect the
security of the electoral processes and procedures as a whole. From the first Acts, these
questions continued to be a prime focus of debates.
Representation as "standing for" relates to this report in terms of the laws regarding
candidates and their behaviour. If the members of parliament are "standing for" the citizens,
then what structures and processes should be put into law concerning the candidates seeking
to be members? Finally, representation as "acting for" involves a range of issues, many of
which are beyond the terms of reference of this report. One theme, though, is central: the
members of the parliaments were "acting for" the citizens in developing the electoral
structures and processes over time. To what extent were these members seeking to further the
"democracy" of the election system "for" the citizens? The answers to this question provide
the core of many of the evaluations in this Report.
Democratic representation therefore involves a range of factors in the structures and
processes of the electoral system - of access. As the Oxford English Dictionary puts it, access is
the "right or means of approaching". This report focuses on both "rights" and "means".
Representative democracy is "generally defined by reference to the procedural and
substantive principles which appear necessary to its operation" (Roberts and Edwards 1991: 36).
Of these principles, the following, inter alia, are central to this report:
- the right to vote for all citizens;
- the equal opportunity to participate through the vote;
- all citizens should be able to vote with the least constraint or hindrance;
- the vote of every citizen should count equally;
- the possible effects of improper influences on the voter should be
minimised;
- the electoral structures and processes must be for the benefit of the
citizens.
5
Introduction
No political system will completely and absolutely satisfy these, and other criteria for
democracy. However, the "quality" of a democracy can be judged by how close it accords
with the ideal, keeping in mind, as noted above, the historical context.
As a consequence, there is an important theme of evaluation in this report. As one
analysis puts it, (Barry and Rae, 1975) :
Evaluating is assigning value to things - roughly speaking, determining
whether they are good or bad ... assigning value to alternative policies,
laws, or general decisions ... [what the] likely consequences are.
Such evaluation needs "political principles [as] criteria of evaluation". In this report, the
criterion of evaluation is a simple and straightforward one - whether the legislation increased
access, and hence increased the quality of democratic representation in South Australia. It is
made on the basis of three broad principles.
(i) Did the legislation establish and/or improve the "public interest"
of the electoral system, or did it include elements of "private
interest"?
(ii) Did the legislation seek to provide for equality of electoral rights
and electoral access for all citizens?
(iii) Did the legislation provide for both "freedom to" - the right to
vote; and "freedom from" - the protection of the security and
secrecy of the vote?
The caveat of historical context needs emphasis. In some aspects, it is necessary to evaluate in
the context of the time. For example, when full manhood adult suffrage was incorporated in
South Australian elections for the House of Assembly from the first elections in 1857, this
could be assessed in two ways. First, in terms of a modern democratic adult suffrage the
1857 suffrage can be evaluated as limited and not democratic. On the other hand, at the
time, in 1857, this male adult suffrage - including all male adult Aboriginal people - was one
of the most democratic in the world. Evaluation should be made with care, and made within
a context.
A second point needs emphasis. In modern democracies, there is an "almost universal
role of political parties" (Maddox 1996: 403). Hence "the relation between the electors and
their party has real political importance" in elections, and in the processes and procedures of
elections. Political parties did not form in South Australia until 1890; the first 43 years of
representative democracy were a matter of independents, pressure groups in the electorates,
and factions in the parliaments.
After 1890, and increasingly from 1910, when a party system became entrenched in
South Australia, electoral legislation increasingly became a party matter. Where, until 1910,
the Bills, the debates, and the Acts were a matter of individual (and some group) interest,
from 1910 they were increasingly a matter of party policy and party interests. Despite this,
the concept of party was not included into electoral legislation - into processes and
procedures - until the late part of the last century.
6
Introduction
Basis, content and structure of the report
The basis of this report are the Constitution Acts, Electoral Acts, and some Miscellaneous
Acts which contained references to elections. The document is fundamentally a report on and
of legislation.
These Acts, and the parliamentary debates on them, showed considerable variation.
Some Acts were long and complex, encompassing the whole range of issues of the election
system. This was especially the case when the Government and the Parliament decided either
to move a series of changes to the Electoral or Constitution Acts, or decided to consolidate
a "principal" Act and a series of subsequent amendments into a new "principal" Act. On
these occasions, such as the consolidated Acts of 1869-70 (29 pages and 100 sections); of
1929 (57 pages and 199 sections); and of 1985 (61 pages and 139 sections), it was usually
the case that the Bill for the Act contained little that was new or controversial. In some cases,
however, for example in the 1985 Act, the consolidation process was parallel with substantial
amendments.
On the other hand, some Acts involved only very minor amendments. Act 8 of 1856,
of one page and one clause, allowed that " in the event of two or more candidates ... being
of the same name, the voting paper ... shall contain the description of each such candidate
...". And Act 818 of 1903, of one page and one substantive section, deleted the provision in
the 1896 Act that the Returning Officer of the Province should be paid 150 pounds per
annum. Even some of the substantial Bills and subsequent Acts were relatively noncontroversial, and contained few amendments to the existing Act(s). For example, the 1908
Bill and the Act to Amend and Codify the Electoral Laws (EA 1908 No. 971) contained
nine Chapters, 239 sections, 22 Schedules, and ran to 66 pages. But, as the Chief Secretary
put it in his short Second Reading speech on an amending Bill (SAPD LC 1913: 592-3),
the Bill
involved no alteration of the principles of the Electoral Code, 1908.
None of the amendments proposed were of great importance, and all
were directed towards ensuring the smooth working of the electoral
machinery of the State ... No questions of principle were involved in it,
and he did not think there was a necessity for a long discussion.
This report does not refer to, nor cite, every section of every Electoral Act, or Constitution
Act which contains references to elections (see Appendix). It does include all relevant and
important amendments to the original bases of the electoral system - the 1855-56
Constitution and Electoral Acts - which are set out, where relevant, in detail at the beginning
of the discussion of each theme. This basis is then traced to 2002 (or to when a provision
was deleted), reporting on each Act only when a change was carried through. Hence, in the
cases of consolidated, but relatively unchanged Acts, or when an amending Act included
sections which were unchanged, the continuing components are not reported nor discussed.
Many components of the modern Constitution and Electoral Acts were introduced
after 1855-56. In these cases, the inaugural amendment is reported and discussed, and then
only subsequent amendments are referred to in the report. On the other hand, some sections
of the Acts, especially those which involved complex provisions, or which involved a
substantive amendment, are reported in detail. Therefore, in the case of a major innovation
7
Introduction
in an Act, or a major change to an existing provision, the wording of the section(s) is
reported in full, or at least in some detail. This is to establish a new basis of that theme
within the legislation, and within the report. Minor amendments to such themes are reported
without such substantial quotation.
The reporting of each theme also focuses on the intentions of the Government or, in
the case of private Member’s Bills, of the individual Member. This is based on extracts
from, or paraphrases of, the South Australian Parliamentary Debates (SAPD). These extracts
are usually taken from the Second Reading speech of the Minister responsible, but where
there have been subsequent amendments to the original proposal, which were carried into the
Act, the extracts are from the continuing debate.
This research source proved to be very variable in content and focus. On some Bills,
especially the "machinery" provisions, the intention of the proposal was non-controversial
and transparent, and on most of these occasions, the Minister merely listed the sections of
the Bill and provided no further comment. On other occasions, the Minister provided a long
and detailed justification of the proposal, especially if it proposed a substantive change to
the Act. The consolidating Bills were particularly a problem in this regard. Even when new
material was proposed in amendments, the debates tended to make little, if any mention of
some sections.
In the cases of the more controversial amendments, the research into, and the reporting
of the debates, has been extended beyond the Second Reading speech to the Second Reading
response and, on occasions, to the subsequent debate. In these cases, the reports of the
debates are more substantial, and include not only the intention(s) of the proposer, but also
the intention(s) of those who opposed the amendments.
This was found to be necessary, especially in the period 1855-56 to 1890, before the
existence of political parties, and to a lesser extent in the period from 1890 to 1910, by
which time the party system had become entrenched. In this period, Government and
Parliament were characterised by instability and fluid alliances. A Bill may have been
introduced by one Government and, before its final passage, be under the guidance of
another (sometimes two or more) governments. Further, a surprising number of Bills which
became Acts originated from Private members, and in these cases Government members
sometimes opposed each other. Such instances required a deeper search into the "Hansard".
After 1910, the Parliament, the proposals, and the debates, increasingly took on a party
flavour. In the colonial period, proposed legislation, in many instances, was debated "on its
merits", with a variety of positions and policies emerging in the debates. Increasingly after
1910 there were only two policies and positions on each Bill - the party policies and
platforms on legislation. Hence it was found to be of little value to explore the debates
beyond the Second Reading speeches. The subsequent debates merely echoed the party
positions.
The first section of the report summarises the period prior to representative democracy
- from the original settlement in 1836 to the passage of the Acts establishing a Parliament
in South Australia in 1857. It provides a brief summary of the period of "rule from
London" from 1836 to 1851; of the passage of the 1850 Constitution Act and the
subsequent 1851 election for a part-elected, part-nominated Legislative Council (the
"Hybrid Council"); and of the passage of the 1853 Constitution Act and the subsequent
8
Introduction
election for the "Hybrid Council" in 1855. This section concludes with a detailed
examination of the 1855-56 Constitution and Electoral Acts which set the original
foundation both for the first full election in 1857, and for the electoral structures and
processes to 2002, under specific themes which are addressed in the remainder of the report.
The bulk of this report describes and analyses these, and other themes which emerged
over time, to provide the study of the development of community access to the electoral
process from 1857 to 2002.
The Conclusion to the report provides an overview and an assessment of the
development of the Constitutional and Electoral Acts since 1855-56, and an assessment of
the modern structures and processes of representation and community access.
It needs to be stressed that this report is concerned only with Bills which became Acts
of Parliament. There was a multitude of resolutions, proposals, and Bills brought into the
Parliament which lapsed, or were defeated. In some cases, for example, votes for women,
where such aborted proposals and Bills were the precursors to eventual successful
legislation, comment is made on these, but they are included as a context, not as a formal
part of the report.
9
The Foundations for Representative Democracy
The precursor to representation
Representation was not a key issue at the settlement of the Colony of South Australia in
1836, but it very quickly became one. The South Australian settlers were "free men", and
had brought their knowledge and experience of the system of democratic parliamentary
democracy from Britain. It is not surprising that demands for a representative democracy
were heard in the Colony from the beginning.
What is remarkable is the speed with which this was achieved. Even the most
rudimentary democratic electoral structures and processes took hundreds of years to develop
in Britain, often in the face of fierce resistance. They took decades to be granted in other
British colonies. Democratic representation was a very slow developer.
In South Australia it took only 15 years before the first elements of representative
democracy were attained, and only 20 years before South Australia achieved one of the most
democratic structures in the world.
The Imperial Act establishing the Colony, the South Australian Colonisation Act of
1834, included a unique provision in British colonial development: authority was divided
between the Governor and the Colonisation Commissioners (the latter had the responsibility
for the sale of land in the colony under the "Wakefield Plan"). There was no "democracy",
hence no elections, and access to authority was on a very informal basis. This "joint"
authority was neither efficient nor effective, and by 1838 the essential power had passed to
the Governor.
South Australia was ruled by a head of government who was appointed by the British
Crown. The Governor was empowered to "establish all ... Laws... as may be necessary", with
the assistance of a Council of Government consisting of the Chief Justice, the Colonial
Secretary, the Advocate General and the Resident Commissioner. There was simply no
representative government, and no formal element of access.
From the beginning, though, the foundation Act (Colonisation Act, 1834, 4 and 5 William
IV c. 95) had provided for a transition to a system of representative government, subject to
the requirement for the population of the colony to reach 50 000.
The possibility of such a system was raised again in The South Australia Act, 1842
(5 and 6 Vict. c. 61). The Act stated:
It shall be lawful for Her Majesty ... to convene a General Assembly, to
be elected by the freeholders and other inhabitants of the said colony ...
and to authorise the Governor ... with the advise and consent of the said
General Assembly, and of a Legislative Council ... to make laws for the
peace, order and good government of the said colony, or ... to constitute
a General Assembly ... consisting of a single House ... composed ... of
members to be nominated by Her Majesty and of other members to be
elected by such freeholders or other inhabitants.
The Act noted the need to decide by which means and under what condition such members
would be elected. However, until these issues were decided, and the Crown decided that
South Australia was ready for some elected representatives, the 1842 Act merely extended the
Governor’s Council to seven members, and named it the Legislative Council.
10
The Foundations for Representative Democracy
The population threshold was achieved in 1849, and the formal process of discussion
and negotiation about the nature of representation and representative democracy in South
Australia began.
The first representation
The 1850 Act, the 1851 Ordinance, and the 1851 election
In 1850, the Imperial Parliament passed The Australian Constitutions Act (13 and 14 Vict. c. 59).
to put into process
the separation of Port Phillip from New South Wales, and the extension
of representative institutions to Van Dieman’s Land and South Australia.
The Act empowered the existing Council to establish
a Legislative Council to consist of ... members, not exceeding twentyfour, ... and that one third ... shall be appointed by Her Majesty, and the
remaining members ... shall be elected by the inhabitants of the colony
(cited in Munyard 1986: 63).
The existing Council was also empowered to draw up the electoral districts and to take
responsibility for "orderly, effective, and impartial ... elections". That is, to provide for a
representative institution, and access for the citizens through representative electoral
processes.
The Imperial Act was transmitted to South Australia, and in February 1851 Governor
Young released his plan for limited "responsible" and "representative" government. The then
Council, with considerable input from the citizens, debated four main issues: "the number
of Council members, division of the Province into electoral districts, conduct of the
election, and methods for settling disputes arising from the election" (Fort 2001: 4). The
Council finally passed an amended Young proposal (Ordinance No. 1, 1851). The proposed
legislature would consist of four official and four non-official members nominated by the
Crown, and an election would be held for 16 of the 24 members. These sixteen members
of the new "Hybrid Legislative Council" were to be elected from single-member districts,
with a restricted franchise.
This was a relatively radical proposal, even something of an experiment in the context
of the 1840s, and, in an even more radical component, any amendment of the constitutional
basis of the "Hybrid Council" was granted to the Council itself, subject only to Her
Majesty’s assent. The prime task of the Council was to draw up a Constitution to establish
a bicameral legislature. Representative democracy appeared to be arriving very quickly indeed.
The Colony’s first "democratic" representatives would be elected by the "subjects of
Her Majesty" or "legally made denizen[s]" in the colony, who had a freehold estate of "one
hundred pounds sterling money", or a "householder ... of annual value of ten pounds" with
a residence requirement of "six calendar months". Those "attainted or convicted of treason,
felony, or any other infamous offence" and those who were in rates and taxes arrears, were to
be denied the franchise. There was no mention of Aborigines. However, Aboriginal people
had been proclaimed as British subjects in 1838, by the Chief Justice of the Province. Hence
Aboriginal males who satisfied the requirements had a right to vote.
11
The Foundations for Representative Democracy
Citizens were required to register their right to vote with Collectors in each of the
sixteen election districts, provide evidence of their satisfaction of the property requirements,
and pay a fee of one shilling. This fee, in many districts, provided the only payment for the
returning officers! The subsequent electoral lists were displayed publicly, and a process was
established to deal with any objections to registration by any voter.
The authority to revise lists was in the hands of Local Courts. There was also a cost to
candidates, who had to contribute equally for payment of the remuneration of Returning
Officers and clerks, and for the costs of hiring and erecting the polling booths.
The Council then turned its mind to defining the electoral districts. On this issue, the
Colony proceeded to a debate on a question which was to dominate the debates on electoral
systems for 125 years. What should be the basis of elections - population or interests? The
"government" proposed a plan to "give equal representation to each major occupational
group". JT Bagot countered with a plan "giving the pastoral interest four members, the
agriculturalists five, and the remaining seven to mining and commerce" (Pike 1957: 419).
Both plans also focussed on a second issue which dominated all subsequent debates on
electoral redistributions - the over-representation of the country areas. As Pike put it,
[Bagot’s] ... valiant attempt to give equal representation both to
population and to economic interests was ill-received, because half the
seats were allotted to the city and suburbs - a principle which no
respectable South Australian has ever been able to accept ... because ...
wealth came from the country, the country needed greater representation
(Pike 1957: 419).
This "respectable South Australian" attitude dominated until 1975, when the principle of
"one vote, one value" was finally incorporated into the Act, and entrenched into the
Constitution.
In cases of disputed returns, a special Court was established, to convene not more than
three days after the first meeting of the elected Legislative Council. The Court consisted of
a Supreme Court barrister, two members of the elected Council, and two members of the
public. Appeals to the Court could be made by a candidate, or by one tenth of the total list
of electors in the District. Costs of the Court were initially paid by the petitioner(s), but
with possible recompense if costs were awarded.
The process of the election was explained in the press (The South Australian Register
31 January 1851).
The Governor will be empowered to appoint a qualified Elector in each
Electoral District, as returning officer of the same.
The several polling places will be proclaimed 14 days at least before
the day of any election; and the Clerks of the several District Road
Boards will be the Collectors of Electoral Lists, etc.
The returning officer may erect or hire polling-booths or engage rooms.
The proposed Bill did not contemplate the vote by ballot, as is apparent from the
following passage.
Every elector entitled to vote in the election of members of Council,
may vote by delivering to the said returning officer or his deputy a voting
paper containing the Christian name and surname of the person for
12
The Foundations for Representative Democracy
whom he votes; such paper being previously signed with the name of the
elector voting, and with the name of the place in which the property for
which he appears on the electoral roll is situated.
The method of voting incorporated into the Act was initially a show of hands, taken at noon
on the date and at the place of nomination. If one candidate, or at least six electors, asked
for a poll, then the voters attended the specified polling places in the District on the day
specified on the Writ. Polling hours were between 9 am and 4 pm. Voters presented their
marked ballot papers to the Returning Officer, and these were recorded in the poll book, in
public. There was no provision for secret voting. In both the show of hands and a poll, the
electors voted for one candidate only, and the system of first-past-the-post applied. The
candidate with the largest vote was declared elected.
There was a provision in the Ordinance for a Returning Officer, if demanded by any
two electors, to ask four questions of any elector at the time of the presentation of his
ballot paper.
Are you the Person whose name is signed as A.B. to the voting paper now
delivered in by you?
Are you the person whose name appears as A.B. in the electoral roll now
in force for this Electoral District, being registered therein for property ...?
Have you already voted in the present election?
Have you the same qualification for which your name was originally
inserted in the electoral roll for the district...?
Apart from the two questions relating to the property qualification, similar questions are
asked of voters today.
There was no formal reference in the Ordinance to any qualifications for candidates, but
it could be assumed that they had to have the qualifications of an elector.
In summary, the 1851 Ordinance established a limited franchise, and a set of
regulations for the conduct for the election, which, today, would not be accepted as
"democratic". At the time, the processes of the election, held in July 1851, were among the
most democratic in the British Empire, and there was a remarkable degree of access, and of
quality of access. The restrictions of the franchise were "progressive" in comparison with
other "democratic" nations, and there were real efforts to ensure the accuracy of the rolls
and the identity of the voter. The "public" act of voting reflected the traditions of Britain.
The 1853 Constitution Bill and the 1855 election
The "Hybrid Legislative Council" elected in 1851 was charged with the task of preparing a
Constitution for South Australia, to be forwarded to the Imperial Parliament. The first step
came from a Select Committee which proposed a number of progressive, even, at the time,
radical reforms to the political structures and to the election processes. The majority of the
members wanted a bicameral parliament, with the lower house elected by manhood suffrage,
with no property restriction. The Legislative Council was proposed to be fully elective, but
with a substantial property qualification. Voting for both houses would be by secret ballot,
and the electoral districts would be drawn on the basis of population, not wealth.
13
The Foundations for Representative Democracy
The Governor, with the support of the more conservative leading colonists, proposed
an alternative, very restricted "democracy". Very severe franchise restrictions were proposed
for the lower House, and the Legislative Council was to be fully nominated. Despite the
objections from the liberal progressives, Governor Young sent his model , the 1853 Bill, to
England. After further acrimony, and a change of government in Britain, the Bill was
disallowed and returned for re-consideration.
The 1855 elections were therefore held in a political environment dominated by the
issue of constitutional reform. The election system which applied was that of the 1851
election, with minor modifications. For example, in 1855, prospective voters no longer had
to attend in person before a returning officer to prove their property qualifications (EA 1853
No. 2 S 8), and the remuneration of electoral staff, for all normal duties, would be a charge
on the public revenue, not on candidates or electors (EA 1854 No. 11 S 12).
One provision in the 1851 Act which applied for the 1855 elections was included
with foresight:
Where the proceedings of any election shall be interrupted or
obstructed by any riot or open violence ... the returning officer shall
adjourn ... until the following day, and if necessary shall further adjourn
... (Ordinance 1851 No. 1 S 25).
Given the very strong feelings about constitutional reform, and the debates between the
liberals and conservatives, some unrest might have been expected. One case in point, an
election in West Adelaide, was summarised by Portus (1936: 278).
A fight took place in the booth soon after it was opened. Sixty police
were requisitioned to keep order. But even this thin blue line was
threatened, and soldiers were thereupon ambushed in the vicinity. At the
end of a perfect day, from a hotel balcony, Forster was declared to be
elected. In what a modern psychologist would call an effort to sublimate
their chagrin, the supporters of Fisher rushed the balcony, pulled down
the Forster flags and rent them to shreds. With chagrin still
unsublimated, they descended on the crowd with sticks, stones and
chairlegs. Down went the foot-police before this attack. But, at the
critical moment, the Commissioner of Police threw in his mounted men
... [which] had a very salutory effect on the infuriated partisans.
The new "Hybrid Legislative Council" was able to establish a proposal for a Constitution
for the Colony, albeit not without considerable and impassioned argument between the
conservative and progressive forces, especially about electoral systems.
The foundations established
The Constitution Act 1855-56, The Electoral Act 1855-56
These Acts, passed by the Council, set the basis for a system of representative democracy for
South Australia, and established the colony’s first, full election system to provide for
democratic representation. The sections of the Acts relevant to election structures, systems
and processes were the "building blocks" for the developments in the 150 years to 2002.
14
The Foundations for Representative Democracy
The Constitution Act (CA 1855-6 No. 2 Ss 6, 16) established the franchise for the
elections for the new Parliament. Despite the fact that the Bill had proposed a restricted
franchise – to property, educational and/or professional qualifications only - the liberals in
the Council demanded and finally achieved a House of Assembly franchise which was then
the most democratic in the world. Full adult male suffrage was applied: all males of age 21
years, who were natural-born or naturalised subjects, registered on the electoral roll for six
months, had the right to vote.
The conservatives had railed against this, but the arguments put by such liberal members
as JB Hughes and John Bagot prevailed. To Hughes,
a man came here to benefit himself and his family, and the fact that a
large family prevented a man from acquiring property was no reason why
he should be disenfranchised.
To Bagot, it was a matter of "trusting the people ... the more power was given into their hands
the better would be the Government under which they lived" (cited by Seaman 1986: 87).
In the context of the times the Legislative Council franchise was also relatively
democratic. The upper house was fully elective, with a property franchise granting the right
to vote to an adult male who was a subject of her Majesty, or legally made a denizen, having
a freehold estate of the value of fifty pounds sterling, or having a registered leasehold estate
of the annual value of twenty pounds, with three years at least to run or having a right of
purchase clause, or occupying a dwelling house to the annual value of twenty five pounds,
and who had been registered on the electoral roll for at least six months.
The original Bill had also included a right to vote for "A university degree ... Medical
diploma ... Minister of Religion" (The South Australian Register 20 November 1855), but these
were deleted, and the franchise was based exclusively on "property".
There was no reference, hence no restriction, in regard to electors who had money owing
on the property through which they claimed a vote. The franchise was denied to any adult
man "who has been attainted or convicted of treason or felony, or any other infamous
offence" unless there has been a free pardon or he has undergone the sentence. The pardon
had to be "a free one".
Aboriginal people were not specifically mentioned in the Act, and consequently were
entitled to vote if the statutory requirements were met.
The Electoral Act (EA 1855-6 No. 10) established the laws concerning the election
procedures and processes. The Act established an electoral administrative framework, within
a representative system, for the first time. The Governor appointed Returning Officers, and
these had the authority to appoint clerks, deputies and other officers necessary to carry the
Act into proper execution (Ss 2, 3).
This Act repealed the 1851 and 1853 provisions regarding voters and candidates
bearing some of the expenses of an election. From 1855-6, all expenses of an election came
from the general public revenue (S 56).
Returning Officers appointed by the Governor faced a penalty of two hundred pounds
for neglect or refusal of duty (S 59). Electoral lists were made up by Returning Officers "of
all persons resident in the district entitled to vote" (S 7). Claims by people to be included
on the lists after display were made to the Returning Officer and were decided by the Courts
of Revision, meeting quarterly, consisting of a Special Magistrate and two Justices of the
15
The Foundations for Representative Democracy
Peace (Ss 8, 9). Objections to enrolments were dealt with in a similar way. Voters were not
required to appear in person to prove their qualification unless required to do so by the Court
(S 16).
Every voter was required to obtain from the Returning Officer a certificate granting a
right to vote. This had to be produced on attendance to vote, with the day and place of
voting noted on the certificate by the Returning Officer (S 17).
Polling hours were from 9 am to 4 pm (S 28). Polling places were established by
erecting booths, hiring rooms - provided they were not a "house for the sale of wine, beer,
or spiritous liquors, or within one hundred yards of the same" (S 25).
Any election "interrupted or obstructed by any riot or violence" was adjourned until
then following day and, if necessary, for a further period (S 27).
On attendance at the booth, voters were asked three questions (S 30):
Are you the person whose name appears ... in the electoral roll ...?
Have you already voted at the present election?
Are you still possessed of the qualification for which your name now
stands in the electoral roll [or] are you of the age of 21 years?
The penalty for voting a second time, or for impersonating another elector was
imprisonment for a maximum of two years (S 54).
The vote was a secret ballot. This had not been included in the Bill which Governor
MacDonnell had put before the "Hybrid Council". To him, "it seems to me very doubtful
how such a change in the system hitherto followed would operate in this country" (cited by
Seaman 1986: 84). He recognised that the question was essentially a matter for the citizens
" who have the most local experience as to the wants and wishes of the community".
In the Council, the secret ballot was incorporated in the Act without dissent. Electors
were required to retire to a compartment, mark their ballot papers in private, fold them so
that the vote could not be seen, hand them to the Returning Officer, who would place them,
unsighted, into the ballot box (S 29). Electors could vote for one candidate, or as many as
the number of candidates to be elected (Ss 29, 32). (The former was known as "plumping").
All voting papers were required to be destroyed after the declaration of the names of the
persons duly elected (S 34).
Courts of disputed returns - in the Act, formally named Courts "for trial of complaints
against the validity of returns by Returning Officer" - were established under the
chairmanship of a Judge of the Supreme Court (S 35). These Courts had the authority to
deal with cases of disputed returns, including on the basis of alleged error by the Returning
Officer, and allegations of bribery and corruption (S 39). They had no authority to inquire
into the correctness of the rolls, nor the qualifications of voters. Their brief was limited to
whether votes were improperly admitted or rejected (S 42).
Candidates could be nominated, in writing, by any two electors. On the day of
nomination specified in the Writ, if there were the same number of candidates as vacant
seats, they were declared elected. If there were more candidates, the polling took place on the
nominated polling day (S 28).
The Electoral Act Amendment Act (EA 1856 No. 8) provided assistance to the voters
in the case of two or more candidates being of the same name. The voting paper was then
to "contain a description of each such candidate".
16
The Foundations for Representative Democracy
Candidates were not permitted, in the period between the issue and the return of the
Writ, to "solicit personally the vote of any elector, or attend any meeting of electors,
convened or held for the purposes of election", with the penalty the same as for bribery
(EA 1855-56 No. 10 S 52).
The democratic principle of "one man, one vote" was not included in the original
1855-6 Act. An amending Act (1855-6 No. 32) did so: "no person shall be entitled to enrol
his name on more than one electoral roll" for either the Legislative Council or the House of
Assembly.
The Act also established the electoral districts for the House of Assembly. The
electoral geography of the Assembly raised, for the first time in a representative system based
on manhood suffrage, the issue of apportionment - and malapportionment. The South
Australian Register had noted (20 November 1855) that
[in] many respects these provisions differ very considerably from those
which were popularly approved of at the general election, and it is clear
that Sir Richard MacDonnell’s Parliament Bill will be largely modified
by the Council.
A Select Committee meeting on the issue of drawing the electoral map had concluded that,
as a matter of principle: "The division of the colony into electoral districts should, as far as
practicable, be based on population". The "Government" disagreed, and proposed a system
where districts varied between 4 500 and 250 persons per Member.
This issue of malapportionment, and the consequent impact on the quality of access
for citizens to a fair and just election process, dominated the debates in 1855, and from then
until 1975. For 120 years, no other issue was more divisive, or engendered longer and more
passionate debates.
The stage was set for these in 1855. The inaugural Bill proposed by the "Government"
was for 21 election districts electing the 36 members. The population per member varied
from 4 414 in North Adelaide to 417 in Port Lincoln. The average population per member
in the city was almost twice that in the country electorates.
To the Register, these "inequalities [were] of a most unwise and unwarrantable
character". The majority of the elected members of the "Hybrid Council" agreed, and
carried amendments to the seventeen electorates with representation ranging from 3 000 to
900. As Pike put it (1957: 479):
Though far from making equal electoral districts this was at least an
honest attempt to represent population rather than acres. "Productive
interests" were consoled by the observation that the scheme would give
eight seats to urban commerce, three to mining, three to rural commerce,
three to woolgrowing and nineteen to agriculture.
The electoral geography and basis of representation for the proposed Legislative Council
was even more contentious. The property franchise was accepted, reluctantly by some, but
the "government" proposal for 12 election districts, and a massive bias to rural property,
was not.
The original plan put to the "Hybrid Council" included four electorates for the city of
Adelaide, electing nine of the 18 members. The total population of this area was 67 971, a
population per member of 7 552. The country area would elect nine members for a
population of 19 218, a population per member of only 2 135: "the most enormous
inequality is apparent" (The Register 20 November 1955).
17
The Foundations for Representative Democracy
GS Kingston led the challenge to the proposal, and succeeded in convincing the
majority of the elected members in favour of a single, Colony-wide, electorate. That is, the
first example of absolute "one vote, one value" in South Australia. However, the property
restriction still effectively provided an informal malapportionment in favour of the
country area.
When the Committee released the results of its cartography for the House of Assembly,
there was a severe malapportionment. Even then the data were very much approximates. The
planning of electoral geography, regardless of the emphasis on "population", faced major
problems in the early colonial years. The 1853 Committee, for example, complained that it
had to depend on "outdated Census returns" and, as a consequence, it
made reference to the actual amount of land sold in each district as
affording something like an approximate guide to the probable amount
of population (South Australian Parliamentary Papers 1853, No. 38).
The 1855 Electoral Committee varied the 1853 proposal only slightly and, in the process,
firmly established the parallel principles of the next 120 years - representation based on
interests, and a malapportionment in favour of the rural areas. Future redistributions,
discussed later in the report, maintained these emphases until 1973 for the Legislative
Council and 1975 for the Assembly.
As this distribution of electorates for the Assembly was the first, and all subsequent
redistributions to 1975 were amendments, it merits some description.
District
Adelaide
Onkaparinga
Noarlunga
Yatala
Port Adelaide
Barossa
Mt Barker
West Torrens
Light
East Torrens
Sturt
Gumeracha
Burra and Clare
Encounter Bay
Victoria
Murray
Flinders
18
Members
6
2
2
2
2
2
2
2
2
2
2
2
3
2
1
1
1
Population per Member
Total
Adult Males
3 043
2 899
2 717
2 536
2 514
2 506
2 457
2 437
2 283
2 277
2 262
2 199
1 976
1 686
1 676
1 179
892
776
688
661
613
713
624
627
540
600
526
512
558
563
482
609
400
444
Enrolment per Member
1857 election
566
354
268
686
297
513
506
469
507
482
416
274
486
284
322
105
353
The Foundations for Representative Democracy
The Constitution and Electoral Acts which emerged from the deliberations (and
compromises) in the "Hybrid Council" were, in the context of the then democratic world,
very liberal, even radical. Manhood suffrage, vote by secret ballot, protection of the secrecy
and security of the vote, a "professional" electoral administration, and a real attempt to
guarantee the accuracy of the rolls, an elected Legislative Council, albeit with a restrictive
property qualification.
The conservatives were mortified by the product. Samuel Davenport later (1862: 12)
recalled the feelings of mortification he experienced ... that ... the Empire
of Great Britain ... could be culpable of silent acquiescence ... when the
Legislature, at the dictatorship of the uninformed and heedless, was
carrying a measure fraught with all the defects the hand of authority has
to guard against ... this fine province will share no better fate, than other
communities, which have transferred the representative power, without
an equipoise, into the hands of the most numerous and least instructed.
The London Times took a more generous approach (cited in Hodder 1893: 307): it was an
odd position for a new community of rising tradesmen, farmers, cattlebreeders, builders, mechanics, with a sprinkling of doctors and attorneys
... to awake one fine morning and discover that this is no longer a colony,
but a nation ...
The enterprise and the achievement of translating the autocratic government of 1836 into
representative democracy, based, in the context of the times, on a very radical and democratic
election system, in 1857, was described well by Hodder.
The whole population of the colony was ... fewer by some hundreds than
are to be found today in such towns in England as Brighton ...the
territory of the colony, on the other hand, was nearly three times as large
as that of the whole of Great Britain ... Only twenty years before, the
land was practically uninhabited ... ruinous reverses had been
experienced. Out of these the people had struggled, holding on with
tenacity to each success until it had been made more successful; throwing
off one by one the leading strings of paternal government until they
attained political manhood.
On the other hand, the "democracy" of the Constitution and Electoral Acts would not be
accepted as "democratic" in 2002. Nor would the level of "community access" be accepted
as satisfactory in the modern context. But it was the start of a democratic system which had
gone further in both directions in a period of 20 years than many other democratic nations
had in more than a century of development.
19
The Development of Community Access, 1857 - 2002
The report now moves to a detailed account of the legislation in relation to the electoral
structures and processes in South Australia from 1857 to 2002. The chronological account
of each of a range of themes of community access to these structures and processes includes
frequent references to both the Acts of the Parliament which established and amended these,
and to the debates in the parliaments about them.
The over-arching focus is the quality of representative democracy, and of community
access. The question which is asked about each theme is whether the proposal, and the final
product - the Act of Parliament - extended, amplified, and improved such representation.
20
1 The Franchise
One of the defining characteristics of a democracy is the quantity and quality of
participation.
Participation, when and if effective, has a particularly crucial relationship
to other social and political goals. According to democratic theory, it
represents a process by which goals are set and means chosen in relation
to all sorts of social issues ... a technique for setting goals, choosing
priorities, and deciding what sources to commit to goal attainment.
Participation is important for another reason ... As John Stuart Mill ...
put it: "Among the foremost benefits of free government is that the
education of the intelligence and of the sentiments which is carried
down to the very lowest ranks of the people when they are called to take
part in acts which directly affect the great interests of the country" ... In
this sense participation has more than an instrumental value; it is an end
in itself (Nie and Verba 1975: 4).
This report is essentially concerned with only "one side" of participation - the measures
which were incorporated in legislation to provide the right and the ability to participate. The
other "side" - the extent to which citizens availed themselves of the opportunities offered to
them - is a different research theme.
The extent of the franchise is a measure of the "quantity" of participation that a
government offers to its citizens. The nature of the franchise is a measure of the quality of that
right of participation. South Australia led the world in the former; and it was amongst the
leaders in the latter. There are broad components of both the quantity and quality of
participation. In terms of this report, the prime component is the right to vote - the extent
and nature of the franchise which is offered to the people.
The extent of the franchise is no longer an issue in democratic nations. In most,
including Australia, all citizens aged 18 years or more have the right to vote. Restrictions on
this right are commonly limited to the mentally unsound and to non-citizens. Some nations
deny the right to vote to criminals: South Australia has extended the franchise to these
people.
However, the principle of the franchise - the right to vote - also includes the ability of
every qualified person to exercise the right to vote effectively and efficiently. This involves
more than the statutory right to vote. It involves issues of enrolment - the ease and
universality of the registration to vote, and the extent to which the laws concerning
enrolment and voting are designed to include all people, and to provide the easiest and the
most effective means to exercise the franchise. That is, the greatest possible degree of access.
The right to vote also includes issues such as security and secrecy. The voter should be
able to assume that his or her vote is his or hers. That is, the electoral system should contain
a guarantee against fraudulent behaviour and impersonation, and a guarantee against plural
voting. The voter should also have an absolute right to cast his or her vote in secret, regardless
of the environment of the vote. This became an issue in South Australia from the first
discussions of absent and postal voting (see Section 4).
The original franchise for the elections for the South Australian Parliament was set out
in the 1855-56 Acts (CA 1855-6 No. 2; EA 1855-6 No. 10), and these applied to the
inaugural election in 1857. There were, however, significant differences in the right to vote
between the Legislative Council and the House of Assembly, differences which remained in
legislation until the 1970s. The basis of the Assembly, from the beginning of responsible
21
1. The Franchise
government, was manhood suffrage; that of the Council was manhood suffrage, but limited
by a severe property restriction.
The remainder of this section sets out in detail the major themes of the franchise in
South Australia.
1-1 Gender
Legislative Council
Male adult suffrage was applied to the Legislative Council elections in the 1855-56 Act,
subject to the same restrictions which applied to the Assembly. But the democratic franchise
for the Assembly was not offered in the Council. A severe and restrictive property
qualification was imposed from the beginning (see below). This was the product of a
compromise between the progressive and the conservative factions in the colony and in the
"hybrid" Legislative Council during the debates on the 1855-56 Acts. The former demanded
a fully elective upper house, and a wide franchise. The latter originally demanded a
nominated upper house, but when it became obvious that the chamber would be elected,
demanded a property threshold which would ensure that the electorate of the Council would
represent their interests.
In 1894, parallel to the inauguration of full adult suffrage for the Assembly (see
below), the franchise for the Council was extended with the following clauses (CA 1894
No. 613 Ss 1, 2, 4):
The right to vote for persons to sit in the Parliament as members of the
Legislative Council, and the right to vote for persons to sit in the
Parliament as members of the House of Assembly, are hereby extended
to women.
Women shall possess and may exercise the rights hereby granted, subject
to the same qualifications and in the same manner as men.
Every female voter ... shall be entitled at any time after the issuing of the
writ to apply for a certificate ... that she is registered as a voter upon the
electoral roll and entitled to vote ...
The last clause applied the new rights for women to the Absent Voters Act (see Section 4).
This women’s suffrage was granted with the same property restrictions that applied to
males. Hence, the right was only granted, in full, for elections for the House of Assembly.
The women of SA, like the men, had to wait until 1973 before they won full and equal rights
for elections for the Legislative Council.
House of Assembly
From the first election at the establishment of responsible government, all adult males were
entitled to vote (CA 1855-6 No. 2 S 16), subject to certain requirements and exclusions.
In 1894, adult females were granted the right to vote, subject to the same requirements
as applied to males. Adult suffrage was finally granted (CA 1894 No. 613 Ss 1, 2). The
debates in the Colony, and in the Parliament, over this proposal for full adult suffrage were
intense. The lobbying for votes for women started as early as 1861, when women in South
Australia won the right to vote in local government elections, under the Municipal Corporations
Act. By the 1870s, pro-suffrage groups were active, as were those opposed to votes for women.
22
1. The Franchise
In 1885, the question was first brought into the Parliament by Dr Edward Stirling, who
convinced the Assembly to support a motion in favour of votes for "single and widowed
women". He asked the Assembly
[h]ad not the incapacity of women to exercise the franchise beneficially
been assumed throughout rather than proved? ... how was it shown that
women should be classed with minors, idiots, lunatics and criminals, as
unworthy and unfitted for a simple duty of citizenship? ... the exclusion
of women was not justified on any purely intellectual ground of absolute
inferiority of intellect (SAPD HA 1885: 322, cited by Jones 1968: 421).
His belief was a limited franchise for women, but no rights to sit in the parliament.
The first formal Bill was introduced by Stirling into the Assembly in 1886. It was
defeated, as were five subsequent attempts.
In 1893 a women’s suffrage bill was introduced into the parliament; the House of Assembly
refused to pass it as its implementation was conditional on complex referenda.
In July 1894, the government of Charles Cameron Kingston moved the seventh attempt.
Attorney-General John Gordon introduced the Bill into the Legislative Council, and stated,
in his second reading speech, that
the time had arrived in the social evolution of South Australia when it
was sufficient to lay this Bill upon the table of the Council
unaccompanied by any remark save to re-assert in the famous words of
J.S. Mill - ‘that the principle which regulates the existing social relations
between the two sexes - the legal subordination of one sex to another is wrong in itself, and is now one of the chief hindrances to human
improvement (SAPD 1894: 434, cited by Jones 1968: 431).
23
1. The Franchise
The Parliament accepted the principle of adult suffrage, which applied to the 1896 election
(CA 1894 No. 613 Ss 1, 2).
By this Act, South Australia became the second polity in the world to extend the right
to vote to women. Ironically, if any of the five attempts from 1886 had been accepted by the
Parliament, South Australia would have beaten New Zealand in the record book.
1-2 Age
The age at which the right to vote is granted is an arbitrary decision. There is no democratic
principle on which the age qualification can be based. In South Australia, the original Act set
the age of 21 years as "adult" for the purposes of elections (CA 1855-6 No. 2 S 16).
In 1971, the franchise was extended to people of age 18 years (CA 1971 No. 17 S 4).
The (Labor) Government stated that
[t]he proposed granting of the franchise to the 18 to 21 years-old-age
group is consistent with a policy of this Government whereby people
within that age group are recognised as a force in the community as
responsible citizens (SAPD LC 1970: 3024).
The (Liberal) Opposition was not convinced.
I believe the age of 18 as the age of majority for voting is, in many cases,
far too young. If this becomes law in due course, I hope the Government
will see the wisdom of leaving it as a voluntary vote for young people
who feel that they are sufficiently mature and well-informed to vote ... a
generation ago young people left school at an average age of 15 ... These
young people for two or three years ... had to go to work ... it certainly
added to their maturity and breadth of outlook; it also helped them
assume a responsible attitude ... Today ... many young people are still at
school at the age of 18 ... We could come back, with some wisdom and
some common sense, to the age of 20 (SAPD LC 1970: 3436).
However, the Bill received majority support.
As noted above, the age restriction on the right to vote is arbitrary. There have been
recent proposals to lower the age to 16, notably from youth groups with some support from
the Australian Democrats. Arguments can be made for and against.
In 1985, the Electoral Act was amended to provide for provisional enrolment for
persons between the age of 17 and not yet 18. Such people could enrol, but could not vote
unless they had turned 18 by the polling day (EA 1985 No. 77 S 29). GJ Crafter (Labor)
stated the intention of the amendment: "to ensure that electors have an adequate time to get
their voting entitlement in order prior to an election" (SAPD HA 1985: 4253).
One intention of the provision was to attempt to ameliorate a problem - alienation of
the young, and a consequent reluctance to enrol. A number of studies and inquiries from the
early 1970s had found a trend which was summarised by a study prepared for the Australian
Electoral Commission (1983: 8).
Most young Australians are not averse to registering for enrolment but
instead have not considered the issue sufficiently important ...
[especially] the unemployed, the mobile and those who fear retribution
through late enrolment.
24
1. The Franchise
The concept of provisional enrolment sought to overcome this. At the same time, the study
noted:
Central to an understanding of enrolment failure in young Australians is
the realisation that the majority of this group reach 18 years without any
feelings toward or knowledge of our political system and what it means
to live in a democracy.
Provisional enrolment would not deal with that problem - education and encouragement are necessary.
This, of course, asks the question "whose responsibility is this?" The various electoral agencies and
Commissions in Australia usually include a reference similar to the statutory obligations required of the
South Australian State Electoral Office, to a responsibility for "public education". This task is beyond the
resources of any such office, and it can be argued that it is not their sole responsibility.
Access in a democratic system is in two directions. The legislation should provide for the broadest
possible access, in both quantity and quality. But there is an equal responsibility on the citizens - to play
their role, and approach the right of access in a participatory manner. Many do not.
It is reasonable to expect that a democratic society, which is based on the assumption of an
informed, aware, interested, motivated, and participating citizenry, should carry the responsibility for
instilling these qualities. But this task should be the responsibility of governments and parliaments, and
of the education system, including the adult education system, not left to the electoral jurisdictions.
1-3 Aboriginal people
There was no mention of Aborigines in the original Act of 1855-56. Consequently
Aboriginal adult males had the right to vote if they met the other requirements in the Act.
The relevant clause referred only to "every man of the age of twenty-one years ... being a
subject of Her Majesty ..." (CA 1855-6 No. 2 S 16). As noted above, the Chief Justice of
the Province, in 1838, had proclaimed Aboriginal people as British subjects. In law, therefore,
Aborigines had a right to vote for the House of Assembly and the Legislative Council
(subject to property and other requirements) from the inauguration of responsible
government.
No restrictions at all, apart from those which equally applied to the non-Aboriginal people, were placed
on Aboriginal enrolment or voting. However, in practice, the residential requirement that all prospective
electors had to reside at a specific address for a minimum period, was a severe constraint on Aboriginal
involvement, while little was done to encourage the Aboriginal people to enrol and vote in the early years.
Further, the names of many Aboriginal people in South Australia were deleted from the electoral roll
following the introduction of the joint roll system with the Commonwealth in 1921.
Hence, until the 1960s, there was no formal requirement for the electoral administration to be
accountable for ensuring that Aborigines had an equality of access to implement their right to vote. In
modern legislation, through such programmes as electoral education and mobile polling, there is a real
effort to produce a right to vote in practice as well as in theory.
25
1. The Franchise
1-4 Citizenship
Modern democracies demand citizenship as a prerequisite of the franchise. In Australia, the
exclusive right of an Australian citizen was not included in the Electoral Act until the 1980s.
Traditionally, the franchise had been based on the concept of "British Subject", and when
the citizen provision was included the residual British subjects retained their right to vote. In
early South Australia, there was no concept of a citizen of the Colony.
Under the 1855-56 Act (CA 1855-6 No. 2 S 16) an elector was required to be a
natural-born or naturalised subject of Her Majesty.
In 1982, the requirement was changed to be that an elector had to be either an
Australian citizen or a British subject (CA 1982 No. 77 S 8). The (Liberal) Government
explained.
In most other countries the primary condition of the franchise is
citizenship, but in Australia this is broadened to include non-citizen
British subjects. This anomaly has caused a great deal of justified
resentment amongst non-British migrant groups and was adverted to as
a matter requiring urgent reform in the Galbally Report.
The Commonwealth has now moved to correct the anomaly ... It is
obviously desirable that corresponding reforms of the State electoral
laws should be introduced and should be brought into operation as soon
as possible. I am sure that the proposed reform will be enthusiastically
received by the ethnic communities. The Bill will contain a saving
provision to protect the position of British subjects who are non-citizens
but who are presently enrolled (SAPD LC 1982: 3170).
In 1985 (EA 1985 No. 77 S 29), the requirements in relation to British subjects were
clarified to accord with Commonwealth legislation. The new laws required that a person had
to be either "an Australian citizen" or
a British subject who was, at some time within the period of 3 months
commencing on the 26th day of October, 1983, enrolled ... as an
Assembly elector or enrolled on an electoral roll maintained under a law
of the Commonwealth or a Territory of the Commonwealth,
and that he had lived in the subdivision containing his residence for at least one month.
This provision clarified the "special right" granted to British subjects, prior to 1983,
who were not Australian citizens.
In terms of equality of access, this established an anomaly - a right to vote for non-citizens. The "special
right" was a product of the historical political culture, and could not be removed without retrospective
legislation - the removal of the right to vote. As the anomaly will disappear with time, the decision made
in 1985 was a logical and sensible one.
26
1. The Franchise
Legislative Council
The 1855-56 Act contained one variation in regard to the Legislative Council to that which
applied for the Assembly. The elector had to be either a natural-born or naturalised subject
of Her Majesty, or "a legally made denizen of the Province" (CA 1855-6 No. 2 S 6). The
word "denizen" is defined by the Oxford English Dictionary as "a foreigner admitted to residence
and certain rights". This reference to "denizen" was not included in the Legislative Council
Franchise Extension Act of 1907 (EA 1907 No. 920).
In 1973, the franchise for the Legislative Council was modified to provide that the
citizenship requirements for the Assembly also applied to the Council (CA 1973 No. 51 S 3).
This was assumed at the time of the introduction of full adult suffrage for the Council
(see below), with the statement in the Act:
A person who is entitled to vote at an election for a Member of the
House of Assembly shall ... be qualified to have his name placed on the
appropriate Council roll.
1-5 Residency
Residence requirements are a standard component of
all electoral systems. In South Australia, the residence
requirement, over time, included a number of
variations of time of residence, and variations of
residence within the Colony / State, and electoral
district and sub-division.
Legislative Council
Under the original Act (CA 1855-6 No. 2 S 6),
Council electors had to be on the electoral roll of
the Province for at least six months prior to an
election (the Council was elected from the whole
Province as one electorate). In 1907, a residency
requirement of six months in South Australia was
enforced (EA 1907 No. 920 S 4). In 1913,
residency and enrolment was changed to the district
in which the vote was claimed (CA 1913 No. 1148
S 18), and in 1973, the residency requirements for
the Council became the same as for the Assembly
(CA 1973 No. 51 S 3).
House of Assembly
The inaugural Act provided that electors had to
have been registered on the electoral roll for a
district for at least six calendar months prior to an
election (CA 1855-6 No. 2 S 16).
Legislative Council registration restrictions
were not fully removed until 1973.
27
1. The Franchise
In 1904, this requirement was modified, removing the time component relating to
residence in a specific district, to grant the right to vote to
all persons not under 21 years of age, whether male or female, married
or unmarried
Who have lived in South Australia for six months continuously; and
Who are natural born or naturalised subjects of the King; and
Whose name are on the electoral roll for any House of Assembly district
(EA 1904 No. 876 S 4).
In 1913, a person was required to be registered for at least one month prior to the issuing
of the writ for the election, in addition to six months residency, in the Assembly district for
which the vote is claimed (CA 1913 No. 1148 S 18).
In 1985, the residency requirement was extended to three months (EA 1982 No. 77 S 8).
In 2000, it is one month.
1-6 War veterans
Legislative Council
The concept of a special franchise for "war service" was incorporated into the electoral
legislation for the Legislative Council in 1918 (CA 1918 No. 1335 Ss 3, 5). The right to
vote was granted to any person who had
been a member of the Australian Imperial Force or of the Royal
Australian Navy or of any other naval or military force raised in the
Commonwealth by the Minister of Defence for service outside the
Commonwealth in the war in which His Majesty is at present engaged,
or has been a member of his Majesty’s Army or Navy or of any naval or
military force raised in any country forming part of His Majesty’s
Dominions for service in such war outside the country wherein such
force is raised ... and has received his discharge from service ... and such
discharge ... was not directly occasioned by or attributable to his own
default or misconduct.
The Act also removed both the age and residence restrictions from this group of people: the
right to vote was granted to people with "war service" even if under the age of 21.
The Commissioner of Public Works, JG Bice, in his Second Reading speech, stated that
the purpose of the Act was to recognise the service "in a way that, we believe, will be
agreeable to the soldiers, sailors and nurses concerned, and to the people of the State." He
noted that the Act would apply a right to vote to people from South Africa and Canada "
or some other British Possession", who had served "outside that Possession", and who were
now residents of South Australia. He also noted that the right would not be offered to
people discharged "for venereal disease" (SAPD LC 1918: 647).
In 1940, the "war service" franchise provisions for the Council were amended to parallel
those of the Assembly, and were granted to those who had served in the second World War,
and would otherwise not be entitled to a vote, provided that their discharge was honourable
(CA 1940 No. 31 S 3).
28
1. The Franchise
In 1943, the franchise for the Legislative Council was broadened to the same terms as
that of the Assembly (below) in regard to war service. The vote was granted provided "nonage" conditions were met, and the residence requirement was modified to a residence of one
month in the relevant district for at least one month before commencement of war service
(CA 1943 No. 41 S 4).
The franchise for "war service" was simplified in 1969, granting the right to vote to any
person who had participated in active service either in Australia or overseas. Further, in a
significant change, the right to vote was granted to "[t]he lawfully wedded spouse, if any, of
a person who is entitled to vote by virtue of this section" (CA 1969 No. 110 S 5).
These provisions granted two special Legislative Council franchise rights for "war
service". First, it removed the necessity for property qualifications for one group of citizens
- a right to vote not available to others. Second, in 1969, it extended this right to the spouse.
This latter extension was the precursor of full adult suffrage (see below).
House of Assembly
During the Second World War, an amendment was carried to the Constitution Act
(CA 1940 No. 31 S 4) to give the right to vote to persons under the age of twentyone who were serving, or had served, and whose discharge, if any, was honourable.
In 1943 (CA 1943 No. 41 S 8), this right was extended to the following:
1. Any person who is or has been a member of a naval, military or air
force of the Commonwealth during any war in which the
Commonwealth is or has been engaged and who
(a) voluntarily enlisted in that force; or
(b) whether he voluntarily enlisted or not, served in that force
outside the Commonwealth or in an evacuated area;
2. Any person who is or has been a member of a naval, military, or air
force of any other part of His Majesty’s Dominions during the war
in which His Majesty is or has been engaged and who during that war
served in that force outside the part of His Majesty’s Dominions in
which the force was raised;
3. Any person who during a war in which the Commonwealth is or has
been engaged was domiciled in any State of the Commonwealth and
whilst so domiciled is or has been employed in any capacity in seagoing service on a ship other than a ship belonging to a Navy.
An amendment in 1969 modified the provision by deleting the references to "voluntarily",
to grant the right to vote to "[a] person who is or has been on active service as a member of
a naval, military, or air force of the Commonwealth in any place outside Australia" (CA
1969 No. 110 S 5). This section also granted the franchise to "the lawfully wedded spouse,
if any, of a person who is entitled to vote by virtue of this section".
In 1982 the provisions were further amended (CA 1982 No. 77 S 9) to delete the
special requirement for "active service".
29
1. The Franchise
1-7 Prisoners
For most of the history of democratic election systems, "criminals" have been excluded from
the franchise. In many other countries, and in some jurisdictions in Australia, this is still the
case. In South Australia, however, prisoners have had the right to vote since 1976.
The original 1855-56 Act denied the right of a vote to any man
who has been attainted or convicted of treason or felony, or any other
infamous offence, in any part of Her Majesty’s Dominions, unless he has
received a free pardon for such offence, or has undergone the sentence
passed on him for such offence (CA 1855-6 No. 2 S 16).
An Act in 1904 clarified the exclusion, in relation to the House of Assembly to any person
"who has been convicted and is under sentence or subject to be sentenced for any offence
punishable ... by imprisonment for one year or longer" (EA/CA 1904 No. 876 S 4). This
offence applied "in any part of the King’s dominions" (SAPD LC 1904: 418). This
provision was incorporated into the Legislative Council provisions in 1943 (CA 1943 No.
41 S 6).
In 1976, the Parliament removed all restrictions on voting rights for prisoners, by
deleting all references, including treason and imprisonment for a term of one year, from the
Constitution Act (CA 1976 No. 68 S 2). This step was given a "positive" thrust in 1985,
when voting rights for prisoners were expressly set out in legislation, with no exclusions (EA
1985 No. 77 Ss 29, 71), and they were granted the right to Electoral Visitors (see below).
In terms of access - the right to vote component - there are two sides to the issue in
relation to prisoners. One would claim that people who have offended against society, in a
manner which justifies their removal, for a period, from that society, should not have the right
to participate in the political life of the society for that period. The other side was expressed
by JC Burdett (Liberal) in the Opposition’s Second Reading reply to the Labor Government’s
Bill in 1976;
there is the theory that one purpose of the incarceration is to rehabilitate
the offender, and I also agree with this theory. To deprive the prisoner of
the basic right, in a democracy, to vote for Parliamentary representatives,
will obviously not assist in his rehabilitation, nor will it deter him or
others from offending again ... I believe that he has not deprived himself
by this offence of any of his basic human rights ... We are in no position
to judge who should and who should not vote (SAPD LC 1976: 2154 - 5).
1-8 Legislative Council - property restrictions
The two most controversial issues in the history of the suffrage in democratic societies have been votes
for women and property restrictions. As noted above, the former was granted in South Australia in 1894.
The issue of the undemocratic nature of setting property requirements as a prerequisite of the right to
vote was not resolved until 1973. It is this very late date, in comparison with the Commonwealth and
other States, for the granting of an equality of suffrage, which is a comment on the nature and approach
of one section of one political party in South Australian politics – the Liberal and Country League (LCL).
30
1. The Franchise
The Legislative Council was established as a "house of property" in 1857. This restriction was
accepted as part of the compromise for responsible government. Almost from 1857, there were efforts
to broaden the suffrage for the Council. But where these debates, prior to 1910, were based solely on
the relative merits of a "special power for property", following the development of a party system, and
especially after the formation of a two-party system in 1932 (Labor and the Liberal and Country League),
the justification for the property restriction took on a party basis, especially for the Liberal members of
the Council.
The issue of equality of access became subordinate to the interests of a party which, through a
severe malapportionment in favour of rural areas (see Sections 12, 13) and the property restrictions,
was virtually guaranteed a majority of the seats in the Legislative Council, and hence a veto power over
all legislation. Proposals for reform of the system to "one person, one vote" by the Labor party were
based on the principle of equality of access, although there was also the desire to have a better
opportunity to win more representation in the Council.
Overall, the determination of the conservative wing of the Liberal party to retain the severe
limitation on access in the electoral processes of the Legislative Council, until forced to change in 1973,
was based on party self-interest. South Australia was the first Australian colony to grant full adult
suffrage for the lower house, but it was the last to extend that right to the Legislative Council.
In 1973, when the Parliament finally agreed to grant a full adult suffrage for the Legislative
Council, the Chief Secretary (AF Kneebone, Labor, SAPD HA 1973: 89) provided a
summary of the history of what was one of the most divisive questions in terms of the
Electoral Act.
This restricted franchise for the Legislative Council has its origin in a
society in which there was a notion that ownership and occupancy of
property gave to the owner, and in some limited instances, to the
occupier, a special stake in the country, so that those persons, it was said,
had the right to exercise political control over the policies of
Government. As the years have passed, the emphasis has shifted from
property to persons. The tone and outlook of society have gradually
altered and become more democratic.
Why did South Australia take longer than any other part of Australia to reflect this "tone and outlook" in
elections for the Legislative Council? Part of the answer can be found in the development of political
parties - in two senses.
First, the Labor party at its formation in 1890, and subsequently, albeit with a decreasing emphasis
after the 1950s, was "socialist". The reaction from the first anti-Labor party, the National Defence League
(NDL) (1893) and, after 1910, the Liberal party, was to perceive Labor as an "enemy of property".
Consequently there was a perceived need in the conservative ranks to protect the property base of the
Legislative Council, and its veto power, to resist any attacks on property.
The second reason was that "property" developed into a strong support base for the NDL, the
Liberal party and, after the amalgamation of the Liberal party and the Country party in 1932, the Liberal
and Country League. The debates over the many proposals for reform of the Legislative Council and the
property franchise had, as a subtext, the advantage this restriction - in parallel with a severe
31
1. The Franchise
malapportionment in favour of rural area and rural property (see below) - gave to the anti-Labor party
(parties). It was not until the strength of the "tone and outlook" became irresistable, and the LCL split
over the issue, that the property restriction was finally abolished.
The original (1855-56) Legislative Council franchise was the result of a compromise
between those who demanded a nominated upper house and those who demanded a fullyelective chamber. The former finally agreed to an elective house, but one for which there
would be the severe property restriction. Attempts to broaden the franchise for the Council
were introduced in almost every Parliament, and on almost every occasion were resisted by
the conservative majority in the Council. The history of the property clause is complex, even
when restricted only to proposals which were passed into law.
In the 1855-56 Constitution Act, the right to vote for the Legislative Council was
granted to
[e]very man ... having a freehold estate in possession, either legal or
equitable, situate within the said Province, of the clear value of Fifty
Pounds sterling money above all charges and encumbrances affecting the
same, or having a leasehold estate in possession, situate within the said
Province, the lease thereof having been registered in the General
Registry Office, for the registration of deeds, and having three years to
run at the time of voting, or containing a clause authorising the lessee
to become the purchaser of the land thereby demised, or occupy a
dwelling house of the clear annual value of Twenty-five Pounds sterling
money ... (CA 1855-6 No. 2 S 6).
This Act made no mention of a key clause in the 1850 Act - those who owed money on their
property, or who were in rates and taxes arrears, were not granted the franchise. This
omission continued in subsequent legislation concerning the property requirement until full
adult franchise was granted in 1973.
In the context of the 1850s, the property franchise was not overly restrictive. The contemporary climate
in other nations, and in the other Australian colonies, contained similar, even more restrictive provisions.
Upper houses were traditionally "houses of property". Further, the Australian experience was that the
undemocratic nature of the Legislative Councils survived until the twentieth century, due to the fact that
reform measures needed the support of the conservative majorities in the Councils. Of the elected
Councils, Victoria allowed full adult suffrage in 1950, Western Australia in 1964, and Tasmania in 1968.
South Australia was therefore the last to grant this right - the sole reason was partisan advantage.
There was an anomaly in the original Electoral Act. A qualified elector for the Legislative
Council could enrol and vote in any division in which he held the requisite property.
However, as the electoral system for the Council from 1857 to 1884 was based on a single,
colony-wide electorate, this was of no effect until formation of electoral divisions for the
1885 election. This loophole was closed in 1893 when the Parliament decided that it had
enabled some property owners "to get the better of the Legislature" (EA 1893 No. 583;
SAPD HA 1893: 2756), but the electoral records of the time do not indicate the extent to
which this extra right was used.
32
1. The Franchise
The Council Franchise Extension Act of 1907 - the first broadening of the franchise
for 50 years - extended the franchise to a slightly broader property base. The vote was
granted to any person occupying a dwelling house, or "dwelling house and premises
appurtenant thereto", with an annual rent of at least 17 pounds per annum (excluding any
payment of rent by a wife to her husband); to a registered proprietor of a leasehold on which
there were improvements to the value of at least 50 pounds and which were the property of
the proprietor.
This Act also introduced special occupational qualifications for the first time. These did not
require ownership and proof of the property qualification as well. The franchise was granted to
[e]very officiating minister of religion: Every head teacher of a college
or school who resided in premises belonging to or used in connection
with the college or school: Every postmaster and postmistress in charge
of and residing in a building used as or in connection with a post office:
Every railway stationmaster who resides in premises belonging to His
Majesty’s Government ...: Every member of the police force in charge of
a police station (EA 1907 No. 920 S 4).
In his Second Reading speech supporting the extension of the franchise, the Chief Secretary,
AA Kirkpatrick (Labor) noted that
this was the third time that it had been his duty to move the second
reading of a Bill similar to the one they now had under consideration ...
When the people were earnest in any cry, and the Government was with
them, it must be correspondingly stronger (SAPD LC 1907: 73).
He used a telling example to justify the Act: "In Kadina, Wallaroo and Moonta only nine of
the 50 House of Assembly voters had a vote for the Legislative Council. What a crying
shame! That in a free country!" In response to an interjection from an opponent of the
reform (J von Doussa, Liberal): "That is according to the Constitution", the Chief Secretary
responded
[t]hen was it not time that it was altered? No wonder that the Chamber
was unpopular. One would think that the people who resided in those
towns were of a low type and unworthy citizens. If they deprived them
of political rights and freedom the assumption was that they were not
worthy to possess them. These men were honest, sober, industrious and
upright ... No section of the community had done more than they to
build up the State (SAPD LC 1907: 76).
He made
a final appeal to members to end the long opposition to the will of the
people. If they did so, they would never have any occasion to regret it,
but if they did not they would give colour to the charge which was often
levelled against the Chamber that instead of being a representative
tribunal it was a mere political party machine ... He knew he could not
appeal successfully to prejudiced people, who did not want to see right,
or light, or truth ... There was no hope of converting them.
The (Liberal) Opposition (JJ Duncan SAPD LC 1907: 81 - 2) claimed that the proposal
was "a compact between the members of the Labour (sic) Party, who were abolitionists, and
their present allies". However, the Opposition was willing to extend the franchise to the
specific occupations:
33
1. The Franchise
... ministers ... were a class that should certainly not be subject to any
franchise disabilities ... The educators of the rising generation and of
future voters should certainly be under no disadvantage by reason of
living in Government buildings. Were these people on their own as
regarded a profession their talents and ability would at an early age have
enabled them to acquire a position that would have ensured them the
right to vote ... The stationmaster and police force were classes of
persons certainly qualified by education and as holding responsible
positions, and who, like the teachers, but for their tie to the public
service, would have early qualified as electors for the Council.
The Opposition also made it clear that
they were unable to go as far as some would wish, because they believed
to do so would be equivalent to joining the Labour (sic) Party, and there
were others in the State, particularly in the country, as well as that party,
and to those they belonged, and to them they must remain loyal and
faithful (SAPD LC 1907: 86)
G Riddoch (Liberal, SAPD LC 1907: 96) summarised the conservative position.
There was the usual blame put upon the shoulders of the Council for
continuing in what it honestly believed the best interest of the whole
people - to resist the proposed reduction of the franchise ... [to stand
against] the passing of legislation supposed to be in the interest of one
class, instead of for the good of the whole community ... conditions were
favourable for the people being happy and contented if left alone by the
agitators.
The extension was passed, but it was only a very minor one, which left the Legislative Council on almost
the same limited and undemocratic base as it had been since 1857. One reason, as suggested above,
and increasingly evident in the debates on the various proposals for reform, was the confrontation
between Labor and Liberal parties, and the determination of the latter to resist any weakening of its
electoral base in the house that it considered to be its own.
A further extension of the franchise came in 1913, when the qualification of an occupier of
a dwelling house was altered to include any inhabitant occupier, whether owner or tenant.
However, the concept of joint ownership (or joint occupation) was not included - the
occupier’s spouse was not given the right to vote (CA 1913 No. 1148 S 17). Under the Act,
people who occupied a dwelling house as part of their employment qualified for a right to
vote, provided that the house was not also occupied by a person who was their employer.
The Chief Secretary (JG Bice, Liberal, SAPD LC 1913: 325) explained that the
proposed
new qualification - "inhabitant occupier", was equivalent to the franchise
for the British House of Commons ... Three elements:- The character in
which the voter occupied. He must occupy as owner or tenant ... But
bare occupancy, not in the character of either owner or tenant was not
sufficient ... joint occupation was not sufficient. A mere lodger was not
an inhabitant occupier ... The real test was the presence or absence of
control of any landlord or superior tenant.
34
1. The Franchise
He believed that what he had laid before the Council were absolutely just
on the question ... fulfilling a pledge it had made on the hustings. It
desired to give the opportunity for the election of members of
Parliament on the best possible basis, so that the laws they made might
be for the greatest benefit of the State.
Some members, such as AW Styles (Labor, SAPD LC 1913: 437) wanted to go much
further.
There were 106,900 women on the Assembly rolls, and only 19,603
women on the Council rolls ... more than half of the disenfranchised
people were women. The great majority of these were wives and
daughters of workmen ... entitled to a vote, by virtue of their
intelligence, their thrift, their sobriety, and their morality ... What had
become of the franchise reformers?
The simple answer was that they were in a clear minority in the Legislative Council - the
"house of rural property".
In 1934, an Act extended the franchise, without the necessity to meet the property
requirements, to any person who had been a member of the armed forces during the First
World war. But it also contained a clause which stated
[a] person shall not be deemed to be an inhabitant occupier of a dwelling
house unless he, or some member of his family, ordinarily sleeps and has
his meals therein; and he shall not necessarily be deemed to be an
inhabitant occupier thereof by reason only of the fact that he, or some
member of his family, ordinarily sleeps and has his meals therein (CA
1934 No. 2151 S 20).
Property was clearly not defined by occupation.
Despite numerous attempts to further broaden the franchise for the Council, the next
successful Bill for reform of the property restriction was not carried until 1969. This Act
(CA 1969 No. 110 S 4) granted the "household" suffrage. It granted the right to vote to
any person who owned or rented property, regardless of the value of the property. Further,
the franchise was extended to the wedded spouse of the owner or renter.
In 1973, all property restrictions were removed, and any person who was eligible to vote
for the House of Assembly also had the right to vote for the Legislative Council (CA 1973
No. 51 Ss 3, 4).
The Chief Secretary in the Labor Government, AF Kneebone (SAPD LC 1973: 88)
outlined the history of the proposal.
This Bill, which is in the same form as a measure introduced into this
Council in 1971 and which then failed to become law, is also in the same
form as a Bill which was introduced into this Council last year, having
been, in another place, passed by the majority as required by the
Constitution of this State and which was then defeated in this Council
on the last day of the last session of Parliament. Since that time, a
general election has intervened, and this Government considers it has the
clearest possible mandate for its introduction once more. It is ... intended
to widen the field from which Legislative Council electors may be drawn
from the narrow confines of land and leaseholders and their spouses to
the broad field of House of Assembly electors. In short, it is to provide
for full adult franchise in Legislative Council elections.
35
1. The Franchise
Therefore it is again submitted that the only proper franchise and the
only proper method of electing members of Parliament is the vote of all
the people of the State expressed in a way that gives to them an equal say
in the makeup of the Parliament that makes laws for them.
The Leader of the Liberal Opposition, RC DeGaris, who had been one of the strongest
opponents of franchise reform, and one of the strongest defenders of a rural-biased
malapportionment (see Section 17), stated to the Council (SAPD LC 1973: 89) that
[t]his Bill will pass unanimously, but ... its passage is dependent upon the
passage of a second Bill, which, in the opinion of members of this
Council, must grant without any reservations that every vote cast for an
election in South Australia for members of the Legislative Council will
have an equal value.
After a long and tortuous history of attempts to make the Legislative Council democratic, adult suffrage
had finally been granted. The volte face by the (Liberal party) opponents to reform was overcome by
two events. First, the LCL split asunder in 1973, partly over the issue of a democratic election system
for the Council (see Jaensch and Bullock 1979; Jaensch 1981). Second, the result of the split produced,
for the first time in over 120 years, a majority in the Council publicly committed to reform.
In the 1973 election, the LCL faced a challenge from a "party within a party" - the Liberal
Movement(LM) led by Steele Hall, whose resignation as leader of the LCL had been forced by the
conservative wing over his commitment to reform. The election result produced a near-majority in
favour of reform in the Council - six Labor, one LM, and two former LM members who were committed
to reform. Labor Premier DA Dunstan attempted yet another Bill for adult suffrage, which passed the
House of Assembly unanimously, albeit after some ritualistic comments from the LCL Opposition.
When the Bill reached the Council, there had been a realisation that, even under the current
restrictions in the electoral system, there was a possibility that the Labor party could win a majority of
seats, and hence its platform of abolition of the Legislative Council could be applied. The conservative
majority decided to support a new system in a defence against this "greater threat".
The 1965 view of RC DeGaris, who had been a leader in the resistance to adult suffrage on the
unusual ground that " household suffrage is possibly more democratic than is complete adult franchise",
had a new position: "the desire of members of this Council to achieve the objective of everyone having
the right to vote for the membership of this Council" (SAPD LC 1965: 3954; 1973: 90). The "somersault"
on the franchise was linked to another change of heart by the conservatives. The view (1969) that "there
is the popular catch-cry of one vote - one value by those who do not stop to think of the real issues at
stake", had become "that every vote cast freely shall as near as mathematically possible ... have an equal
value" ( SAPD LC 1969: 3045; SAPD LC 1973: 90). This second issue is discussed later in this Report
(see Section 12).
The essential reason why the history of resistance to reform became impassioned support for
reform was embedded in party politics. It is unlikely that the conservative resistance to adult suffrage
(and one vote, one value) would have been so easily overcome in 1973 if there was not the likelihood
that the membership of the Council, at the following election, would contain a majority in favour of at
least a fully democratic election system, and possibly in favour of the abolition of the Council. In this
process, the Liberal Movement played no small part.
36
1. The Franchise
1-9 One specific exclusion
In 1904, an amendment to the Electoral Laws Act (EA 1904 No. 876 S 4) denied the right
to vote to "any person who is of unsound mind". In 1985, this was amended (EA 1985
No. 77 S 29) to deny the right to enrol to a person "of unsound mind".
1-10 Access to legislation
The concept of "access" involves one component not usually at the forefront of debates on
representation and electoral systems - the extent and quality of the access by citizens to the
laws which establish their access to the electoral system. It is important that citizens should
have not only a right to obtain and read such legislation, which governs their system of
representative democracy and their right of access, but that this right should be simply and
readily available.
There is an important role for the media which could be undertaken more seriously. In cases of proposed
amendments to the Electoral or Constitution Act, and during the passage of the consequent Bill(s)
through the parliament, the media – and political analysts and commentators – should accept some
responsibility for informing the public, and encouraging debate.
From the inauguration of responsible government, matters in legislation concerned with
electoral matters were found in two types of Acts - Constitution Acts and Electoral Acts.
The issue of the franchise was originally a matter for the former. In 1879, all matters
concerned with franchise were included in the Electoral Act (EA 1879 No. 141 Ss 11, 12).
It is worth noting that the issue of who had the right to vote was not specifically mentioned
in the 1929 Act (EA 1929 No. 1929 S 28).
The access to the legislation by the citizen was made more difficult when a number of
amendments to the Electoral Act or the Constitution Act were passed in separate and
discrete pieces of legislation. Tracing the development of an issue, or changes to the law,
was not an easy matter for the ordinary citizen. Hence there is a necessity to produce
consolidated Acts on regular occasions, to make access easier, and to use, where possible,
simple English. These consolidations of amendments into a single Act were carried out in
1861 (EA 1861 No. 20), 1870 (EA 1969-70 No. 18), 1879 (EA 1879 No. 141), 1896
(EA 1896 No. 667), 1908 (EA 1908 No. 971, and 1929 (EA 1929 No. 1929). But, for
the next 55 years, the access to the Electoral Act required a study of all the discrete
amending Acts.
In 1985, the government prepared a new consolidated Electoral Act. As the Minister
noted in his second reading speech,
[t]he present Act was first passed in 1929 and has been the subject of no
fewer than 22 separate subsequent amending Acts - amending Acts that
have varied greatly in both their nature and extent ... What presently
obtains, therefore, is an unsatisfactory pastiche of measures that lie
scattered throughout the Statute book and other sources. The principal
objective behind this comprehensive revision of the Electoral Act is to
make it as easy and as simple as possible for South Australian electors to
enrol and to cast an effective vote. The Bill seeks to be simple and
37
1. The Franchise
straightforward - simple to read and understand, simple to administer
and simple to comply with. All unnecessary impediments and obstacles
to an elector seeking an entitlement to vote and exercising that
entitlement have been removed (SAPD HA 1985: 4252).
This was a much-needed reform, as the then Electoral Commissioner, Andy Becker, had
pointed out in his report on the 1982 elections (cited in SAPD HA 1985: 4252),
[a]dministratively the Electoral Act is extremely difficult to manage. The
vestigial remains of long-forgotten practices cloud the more recent
innovations. For example, there has not been a separate (Legislative)
Council roll for more than 10 years; yet procedures for maintenance are
set out in full ...
A codified and clarified Act was essential, not only for the normal processes of Government
and Parliament, but also for the right of the people to understand the rules which govern
them.
The South Australian Constitution was not regularly consolidated. In 1934, a new,
consolidated Constitution Act, the first for 80 years, was prepared by the Liberal
Government (CA 1934 No. 2151). As the Chief Secretary, G Ritchie, told the Legislative
Council, this Bill
consolidates 32 Acts relating to the Constitution of South Australia. It
is hoped that it will be of use not only to members of Parliament and
officials who are concerned with the Constitution, but also to students
and scholars, both in South Australia and elsewhere who study our
Parliamentary institutions. The law as to the Constitution at present is
somewhat difficult to ascertain with accuracy. The original Act of 18556, although a sound document in many ways, was not well-arranged, and
... its provisions have been amended, repealed and added to by a
disorderly chain of enactments. Some of the Acts contain provisions
inapplicable to present circumstances. In the Bill an attempt has been
made to arrange the provisions in logical order and omit obsolete matter
(SAPD LC 1934: 1031-2).
In 1988, all references to voting rights were removed from the Constitution Act (CA 1988
No. 1 Ss 29, 33), and transferred to the Electoral Act.
Access in this sense has been improved. The citizen has less difficulty in obtaining the legislation. Copies
of consolidated Acts, and subsequent amendments are not available in libraries: they should be. But
current consolidated legislation can be accessed on the South Australian parliamentary Website.
38
2 Enrolment
2-1 Introduction
One key component of access for citizens,
and the keystone of democratic
representation, is the right to vote. Simply
granting a right to vote is not sufficient to
satisfy the "quality" of access. As a
precursor element, such a right also
requires a system of enrolment which is
encompassing of all who have the right,
and establishes an accurate and secure
register.
In the modern age of information
technology, this task is relatively easy.
Compulsory enrolment (which does not
apply in law in South Australia, but does
in practice; see below), establishes a
statutory responsibility on citizens to
enrol. Maintaining an accurate roll is a
prime task of the State Electoral Office, in
partnership with the federal jurisdiction –
the Australian Electoral Commission, and
involves a constant effort.
In the early colonial period, the
establishment of an electoral roll, and
maintaining an accurate roll, were different
tasks entirely. Enrolment, then as now, was
voluntary and, for quality of access, a
process was necessary to encourage
enrolment by the simplest, yet the most
secure method possible. Second, the lack
of modern technology meant this task had
to be in "handwriting mode".
2-2 Enrolment procedures and processes
One enrolment card entitles eligible citizens to
enrol for federal, state and local government
elections.
Procedures for enrolment for the first election (1857) for the new Parliament were
established by the 1855-56 Electoral Act (EA 1855-6 No. 10 Ss 6-17). In the case of the
Legislative Council, each Returning Officer was required, within a month of the passage of
the Act, to affix "in the most public and conspicuous situation within his district" the
following notice.
I hereby give notice, that I shall ... make out a list of all persons, resident
within the division, entitled to vote in the election of a Member of the
Legislative Council ... And every person so entitled is hereby required to
39
2. Enrolment
deliver or transmit to me ... a claim in writing, containing his Christian
name and surname, place of abode, the nature of his qualification, the
name of the place, and number of the Sections, wherein the property in
respect to which he claims to vote is situate: Persons omitting to deliver
or transmit such claim will be excluded from the register of voters.
In the case of the House of Assembly, the notice specified only name and place of abode.
From this information, the Returning Officer prepared an "Electoral List ... of all
persons resident within his district entitled to vote", which was to be
hung up ... at the Court House, or place of meeting of the Local Court,
if there be any such, and in such conspicuous places ... as he shall think
fit (EA 1855-6 No. 10 S 7).
The publication of these lists allowed for objections (see below), and for the citizens to check
and, if necessary, to claim their right of access.
As a proof of his right to vote, and as a check for the returning officer on election day,
a voter certificate system was incorporated.
Every person whose name shall be standing on the Electoral Roll ... shall
be entitled to obtain from the Returning Officer ... a certificate ... and
at every election such certificate shall be produced to the Returning
Officer ... who shall mark thereon the day and place of the voting of
the elector named therein, and no person shall be allowed to vote at any
election unless he shall produce such certificate to the Returning
Officer (EA 1855-6 No. 10 S 17).
In the context of the 1850s, such enrolment procedures were seen as the best available to
establish the right to vote, and to make that right secure.
In fact, it can be argued that the system based on a voter certificate provided a better method to ensure
"one person, one vote" than does the modern system (see section 3-3-2 below).
After the 1857 election, there was some concern expressed about the level of enrolment. As
a result, in 1859, the Parliament introduced a new system in an attempt to ensure that the
level of participation was increased. This required the returning officers to take part in a
process of publicity and "surveying" of potential electors, and the "certificate system" was
abandoned. This change was recommended by a Select Committee of the House of
Assembly (SAPD HA 1859: 518).
The accuracy of these lists, and keeping them up-to-date, was an essential part of a
fair and just election process. On occasions, there was some difficulty in doing so. In 1878,
for example, the House of Assembly was forced to pass a special Act (EA 1878 No. 127)
to continue the validity of the existing electoral rolls for one further year. The Chief
Secretary, W Morgan, told the Legislative Council (SAPD LC 1878: 1844) that this would
"obviate the making up of the electoral rolls for 1879 and to provide that they should be
made up in 1880, when the census work could be done at the same time and a savings of
3,000 [pounds] would be effected". He also noted that the delay was "rendered necessary
in consequence of the Council not feeling inclined to consider the lengthy Electoral Bill
which had come up to them".
40
2. Enrolment
Access to these electoral lists - the rolls - was an essential right of all citizens. In the
original Act, the returning officer was required to display them in "conspicuous places (EA
1855-6 No. 2). In 1861 (EA 1861 No. 20 S 11), the returning officers were required to
forward
by post to the place of meeting of every Corporation or District Council
within the electoral division or district ... and also to any police station
in any such division or district beyond the limits of a Corporation or
District Council, and the said lists, respectively, shall be kept open to
public inspection at all reasonable hours at such places.
The 1896 Act (EA 1896 No. 667 Ss 21-29, 35, 41) established an improved administrative
structure, including an overall responsibility in the hands of
[t]he Returning Officer for the Province ... [ and delegated to] District
Returning Officers ... subject to any directions from the Returning
Officer (S 21).
Electoral registrars to keep the rolls at specified polling places (S 24)
The Postmaster at [ specified locations, mostly country] polling places
"shall ... be Registrars to keep the rolls" (S 27, Schedule 2).
The registrars so appointed forwarded quarterly reports to the returning officer, with "lists
of all claims received and registrations and alterations affected" (S 28).
There were separate rolls "for each Council Division, and for each Assembly District ...
divided according to polling places" (S 35), and "New rolls shall be prepared in connection
with the census in ... [1901] and every tenth year thereafter" (S 41). The Act (S 36) also
noted that " [t]he rolls shall be conclusive as to the right to vote of the electors registered
thereon".
The Chief Secretary (SAPD LC 1896: 240) noted that the result would be
[g]reater facilities for registration and revision; also greater powers to
Returning Officers and Registrars to keep the rolls correct, and the
electoral machinery would work much more efficiently than under the
old system.
The Attorney General (SAPD HA 1896: 954) explained why the new structure was
important.
The idea of the Government was to encourage people to get their names
on the roll, to afford facilities for the examination of the roll, and to
offer to poor people who desired to exercise their franchise every
opportunity to affect the necessary registration desirable for that
purpose.
This new structure was the genesis of the modern system of enrolment administration. It
was further refined in a consolidated Act in 1929 (EA 1929 No. 1929, Part 4), and
continued, with some minor amendments, until the procedures and processes were placed
under the authority of the Electoral Commissioner in 1985 (EA 1985 No. 77).
It is clear that, from the first Act of 1855-56, there was an intention on the part of the
governments and the parliaments to ensure that the rolls were as complete and as accurate as
possible, and that there was the widest opportunity for citizens to have their enrolment
recorded accurately.
41
2. Enrolment
There was constant debate, especially in the early colonial years, about the accuracy and
up-dating of the rolls. This debate expressed a concern about the nature of access to the right
to vote, and about the means to be used, before the development of modern technology.
These concerns were evident in the Second Reading speech of the Attorney-General
introducing the Electoral Act Amendment Bill in 1859 (SAPD HA 1859: 518).
In the first place it was proposed that the notices of claims, instead of
being sent in yearly, should merely be sent in every five years, and it was
provided that parties might make their claims at any time. If they were
made a certain time before the Court of revision [see below] was held,
they were then submitted to that Court, claims being received till within
a sufficient time to enable the Returning Officer to make up his lists. It
was provided also that there should be Courts of Revision every six
months instead of every twelve months, as at present; and what was
deemed to be an important alteration was that any person might be
transferred from one list to another without the intervention of a Court
of Revision, and parties would be entitled to vote by their tickets of
transfer though they would not be upon the roll until after the Court of
Revision had been held. It was provided, also, that it was not necessary
the Returning Officer should transmit copies of the electoral roll, which
had hitherto been attended with great expense; and it was believed that
it was not only a very costly but unnecessary process.
2-3 Revision of rolls
The corollary to any aim to provide an accurate electoral roll, and hence an accurate register
of a right of access, was the necessity for a means to ensure that accuracy. At the beginning,
this task was given to special Courts of Revision.
For the first election in 1857, the process of enrolment, and inclusion on the electoral
list, included a "claimant" and an "objection" phase (EA 1855-6 No. 10). People omitted
from the Electoral List could claim to have their names added; people who objected to any
person on the Electoral List could submit their reasons for objection. Such matters were
resolved by Courts for Revision, consisting of "the nearest Special Magistrate" (not being a
Returning Officer) and two Justices of the Peace. Amended Lists were required to be kept
by the Returning Officer "in a separate book to be by him provided for that purpose", and
he was required to maintain an accurate and up-to-date List. The Returning Officer also had
the authority to object to names, and these were also resolved in Courts of Revision. The
Returning Officer was also required to "furnish copies of any Electoral Roll to all persons
applying for same on payment of a reasonable price, not exceeding sixpence for every folio
of seventy-two words".
On the basis of the Electoral Lists, prospective voters could obtain a certificate,
certified by the Returning Officer, which was their authority to vote. Without the certificate,
no vote was permitted.
An amending Act (EA 1855-6 No. 32 Ss 1, 3) allowed for the extension of the system
of Courts, and clarified the right to enrol so as to ensure "one person, one vote":
42
2. Enrolment
no person shall be entitled to enrol his name on more than one electoral
roll for any division ... of the Legislative Council, or on the electoral roll
of more than one District ... for the House of Assembly.
In 1861 (EA 1861 No. 20 Ss 25-28) the law concerning Courts of Revision was both
simplified and tightened. It was simplified by establishing that the Court would in future
consist of a "revising officer" appointed by the Governor, rather than the three-person
Court in the 1855-56 Act, and tightened by a section (S 25) which read as if every
eventuality was covered. The complexity was such that the section merits direct quotation.
[T]he returning officer shall, at the opening of the Court, produce the
portions of the electoral lists and electoral rolls and supplemental
electoral list of the said Province which relate to such division, the
electoral list and supplemental electoral list of his district, and the list of
objections to such list and rolls, respectively; and all collectors of rates,
and other persons, shall, on being thereto summoned, attend the Court
and shall answer upon oath all such questions as the Court may put to
them, or any of them, touching any matter necessary for revising such
electoral rolls and registers; and the said Court shall insert in such rolls,
respectively, the name of every person who, having claimed, shall make
proof to the satisfaction of the Court that he is entitled to be inserted
therein ... and shall also retain on the said rolls the name of every person
who shall have been objected to by any person, unless the party so
objecting shall appear by himself, or by someone on his behalf, in
support of such objection; and shall have the power to change the voting
place, or place of abode, of any elector on his application in person, or
by someone duly authorized on his behalf; and when the name of any
person inserted on any electoral list or electoral roll shall have been duly
objected to, and the person objecting shall appear by himself, or by
someone on his behalf, in support of such objection, the Court shall
require proof of the qualification of the person so objected to, and in
case the qualification of such person shall not be proved to the
satisfaction of the Court, the said Court shall expunge the name of every
such person from the said roll, and shall also expunge therefrom the
name of every person who shall be proved to the Court to be dead, and
shall have power, on the personal application of any elector, to change
the description of the qualification of the elector, as appearing on the
electoral roll, provided that the elector shall satisfy the Court, on oath,
that the qualification proposed to be substituted is sufficient in law to
entitle such person to vote ...
The Act also included a relatively severe penalty, "not to exceed Ten Pounds", for "frivolous
claims or objections".
In the consolidated Act of 1879 (EA 1879 No. 141) the system of special Courts of
Revision was abolished. The authority of revision of the rolls was placed into the hands of
the Returning Officer of the Province, sitting as a Court of Revision, who would have the
power to "reject from the roll", and "to strike off names of men who were dead, which had
43
2. Enrolment
frequently been left on the lists before" (SAPD LC 1879: 433). The Act also made more
efficient the transfer of enrolment: the Returning Officer would advise the district returning
officers of any changes.
This Act was prepared "on the joint recommendation of the various Returning
Officers, and by one of their number who he thought was generally admitted to have all the
ability necessary for its preparation ... Mr Ingleby Q.C." The changes were positive. As the
Attorney General, WH Bundey, put it,
instead of the rolls being so carelessly prepared, from the want of
attention on the part of the electors, to a great extent it would be the
duty of the Returning Officers to see that the rolls were properly
prepared (SAPD HA 1879: 206).
Local knowledge was important, and the Act required that the returning officers "should
reside in the district, or have their chief place of business within it, so that they would have
the opportunity of knowing the requirements of the district".
The consolidated Act of 1896 (EA 1896 No. 667) introduced a system of "revision
courts" which "were to a very considerable extent new" (SAPD HA 1896: 954). The
Attorney-General, CC Kingston, explained the reason for the change.
At present such Courts are held by the returning officer, and the
Government thought it would be a mistake to continue the practice by
which the returning officer practically reviewed his own work in
connection with the electoral roll. This duty could best be discharged by
various Local Courts consisting of a special magistrate who should
exercise all the powers of a Local Court of full jurisdiction.
The consolidated Act of 1929 (EA 1929 No. 1929) entrenched these processes and
procedures of enrolment, including the keeping of accurate rolls, to be the responsibility of
the Returning Officer of the State, with further information provided by the RegistrarGeneral of Births, Marriages and Deaths and the Comptroller of Prisons (S 38-41).
2-4 Public and secure
The first Electoral Act of 1855-56 established a "public" enrolment system. The names,
addresses, and in the case of the Legislative Council, the property qualifications, were on
public display. It meant that prospective voters could check their eligibility; roll objections
and claims were open, and the production of accurate lists were in the public domain. Over
time, the enrolment system became more technical and sophisticated, but with the "public"
component retained.
With this openness, and the availability in 2000 of published and public roll
information on hard copy and microfiche, came acknowledgement of the need to protect
the privacy of some electors. In 1985, provision was made for electors not to have their
address appear on the Electoral Roll if they believed that such inclusion would place
themselves or their family at risk (EA 1985 No. 77 S 21). In 1997, such electors became
eligible to be listed on the Register of Declaration voters (see below) and automatically
receive a postal vote.
44
2. Enrolment
From the beginning of representative democracy, there was a real concern among the
legislators to ensure that the formal registration of a right to vote was as efficient and as
effective as possible. The provisions for maintenance of an accurate electoral roll, and hence
an accurate basis for access, was a constant element of the debates on election systems.
In one component, South Australia has remained unique. In 1942, when "compulsory
voting" was introduced, enrolment remained as a voluntary choice for the citizens. It remains
so, but, in effect, due to the joint roll arrangement with the Commonwealth, for most people
who enrol for the first time, filling in the enrolment card means enrolment for South
Australia as well (see Section 16).
This provision for voluntary enrolment should be deleted - for two important reasons. First, despite the
practical effect of the joint roll arrangement effectively "masking" the right not to enrol for South
Australian elections, the very fact that this right exists, if widely publicised, could become a factor in
youth enrolment. Given the level of alienation and apathy among the young, offering a "right not to enrol"
is a mistake.
Further, there is a strong argument that a compulsion to enrol, and to "enrol for life", is a positive
component of any system of representative democracy. A right to vote depends, at base, on the preexistance of a formal and legal enrolment to vote. Hence compulsory life-long enrolment provides a full
right to vote at every election without any further action by the citizen.
There is a further aspect to enrolment "data". The prime purpose of an accurate electoral roll - in
fact, it can be argued the sole purpose - is to be the basis for a fair process of elections. Electoral rolls
and the data contained in them have, however, become a valuable asset for members of parliament and
for political parties. The availability of the broadest possible data concerning individual voters is an "issue
of benefit" for the parties, their members, and for the parties’ campaigning, and has become a major
issue in the democratic process.
The Commonwealth Electoral Act (S 91) requires that the AEC shall, after each general election,
provide at least one copy of the relevant State and Territory electoral roll to each registered party and to
each senator, and a copy of the divisional roll to each member of the House of Representatives. Given
the existence of a joint roll, and that many if not most political parties with federal registration are also
involved in State elections, this "data bank" is a valuable party political resource.
Should it be available? The database now includes, for each elector, name, residential and postal
address, date of birth, sex and salutation. The roll data are continually updated, and available to the
Members, Senators and parties on a monthly basis. Is this justified? The parties claim that the data allow
them to better communicate with the electors. But the data also strengthen the ability of the parties to
better utilize the modern "professional" campaign technologies, and to utilize personal voter
characteristics in their campaigns. The increasing use of these computer-based personal campaigns
rests, to a large extent, on the availability of the personal details of individual electors from the electoral
roll. That is essentially a mis-use of the electoral rolls, which are established to ensure the legitimacy of
the process, not to aid parties in their campaigns. Any democratic interpretation of this would conclude
that it is a serious invasion of the privacy of the electors.
The South Australian Electoral Act (EA 1997 No. 77 S 27A) places real constraints on the extent
and nature of elector data from the roll available to members of parliament and other prescribed
authorities. The Electoral Commissioner may provide
45
2. Enrolment
Any of the following information about an elector:
(a) the elector’s sex;
(b) the elector’s place of birth;
(c) the age band within which the elector’s age falls.
A strong argument can be put that even this more restricted availability of personal data is a mis-use of
the principles of privacy, and merely aids the political parties and their members in their political
campaigns. But the further problem is that the data available to the federally registered parties under the
Commonwealth Act is passed on to the State and Territory branches of the parties, thus making the
restrictions in the SA legislation of no effect.
The overall effect of this availability of personal data to the parties is to not only breach the
principles of privacy in a democratic society, but also to aid the political parties in their quest for votes.
There is no benefit for the voters in terms of access; in fact, there are serious implications. The right
should be removed, and there should be a right for any elector not only to suppress any further
information, but to declare that such information is for the electoral administration and other
components of the State’s social services only, and not available to the parties and their members.
There is a right for new enrollees or enrolled people modifying details, to "tick a box" to
apply the following:
If you do not want details of your gender, place of birth and the age
band in which your age falls released to State members of parliament,
tick the NO box.
2-5 Joint State-Commonwealth arrangements
If South Australian citizens are to enjoy the highest level of access to the electoral processes,
then the least possible complexity and confusion they face, the better. Election systems in
Australia have been characterised by kaleidoscopic changes, over time, and across the federal
and State arenas. South Australian citizens have not been protected from this problem.
Federalism contains the potential for complexity and experimentation. The Australian
colonies pioneered major electoral reforms, relatively uniformly, but then proceeded to go
their own ways in electoral processes and procedures, especially in regard to systems of
translating votes to seats, and to voting methods. In any one year, an Australian citizen may
be asked to vote with different methods, and in different ways.
It is obvious that there is reason for some voters to be confused at times. Hence, from
Federation in 1901, when the complexity increased, and since then when the variety became
even more evident, there has been the need for both State and Commonwealth parliaments
to provide greater uniformity of processes and practices, thereby improving the quality of
access for citizens.
There have been stated commitments from the federal and state parliaments to more uniformity of
practices and procedures, and for more simplicity. The Joint Standing Committee on Electoral Matters
of the Commonwealth parliament has proposed these actions for the benefit of the electors. But
federalism and "states’ rights" continue to be the driving components. The State parliaments have been
loath to change their electoral practices, especially as these are often perceived by the parties in terms
of self-interest. But there remains a very strong argument for uniform structures and processes
throughout the nation.
46
2. Enrolment
The first mention of joint State and Commonwealth agreements under the respective
Electoral Acts occurred in 1908 (EA 1908 No. 971 S 48). The Act stated:
The Governor may arrange with the Governor-General of the
Commonwealth for the preparation, alteration, and revision of the
Assembly rolls in any manner consistent with the provisions of this Act,
jointly by the State and the Commonwealth, to the intent that the rolls
may be used as electoral rolls for Commonwealth elections as well as for
State elections.
This provision had to take into account the differences in the franchise in the two authorities.
There could not be a joint roll in relation to the Legislative Council, due to the restricted
property franchise in force until 1973. Second, the Act recognised:
(a) The names and descriptions of persons who are not entitled to be
registered thereon as electors of the State, provided that it is clearly
indicated in the prescribed manner that those persons are not
registered thereon as State electors;
(b) Distinguishing marks against the names of persons registered as
State electors to show that those persons are or are not also
registered as Commonwealth electors.
As the Minister (AA Kirkpatrick, Labor) said in the second reading speech (SAPD HA
1908: 536), there was a " desire to co-operate with the Commonwealth ... That would effect
considerable savings of expense by avoiding the present duplication of work and printing;
one electoral register would suffice for keeping the joint roll".
It is interesting to note that this statement of intent focused on only one side of the electoral equation –
the "work" of the electoral administration, and its efficiency and cost components. Any implications for
such a change for the electors were apparently not a consideration.
In 1920 (EA 1920 No. 1446 S 7), the procedure for joint rolls was amended to allow for
the introduction of a measure
for the purposes of the first rolls prepared ... any person who is (a) enrolled on a Commonwealth roll in pursuance of any claim signed
by him; and
(b) is entitled to be enrolled on an Assembly roll, shall be deemed to
have made a claim
to be enrolled.
The Chief Secretary, JG Bice (Liberal), outlined a compelling case.
It is quite a satisfaction to turn away from all the turmoil and bitterness
of party strife, and to direct one’s attention to a subject on which there
will be no difference of opinion. The Bill now before us will mean a
saving of expense and a great convenience to the people. It will ensure
placing on the roll the name of every eligible person, and we shall not
hear so much in the future from the person who at election time says "I
ought to have been on the roll, but my name is not there, and I have been
unable to vote". The proposal ... is to use the Commonwealth electoral
roll for our House of Assembly.
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2. Enrolment
DJ Gordon (Liberal) supported the proposal, with the comment that it is "at least one step
forward to the completion of that ideal when the lion of the Commonwealth and the lamb
of the State may lie down together" (SAPD 1920: 1782).
This Act did not alter the voluntary enrolment provisions in South Australia, which
apply to the present day. The Act did include an automatic enrolment on the SA roll unless
the person had specifically requested that the enrolment be for the Commonwealth only.
The Act provided that, if the arrangement "ceases to operate", the rolls in existence
would be applied "until superseded by new rolls" (EA 1920 No. 1446 S 7). The Act also
adopted the Commonwealth residence requirements of six months in the Commonwealth,
three months in the State, and one month in the sub-division.
In 1982 (EA 1982 No. 24), a series of minor amendments were proposed, as H Allison
(Liberal) put it (SAPD HA 1982: 3025), to bring "the State legislation into line with the
relevant Commonwealth provisions". The Labor Opposition (D Hopgood, SAPD HA
1982: 3044) agreed with this principle. His party would support proposals
which deal largely with the bringing of our State legislation into line
with Commonwealth legislation, which I support wherever it does not
offend against my general principles in relation to the democratic control
of elections. Provided that is satisfied, I believe there should be the
highest degree of uniformity that is possible.
By 1985, with adult suffrage now in force for both Houses, the reference to "Assembly" was
deleted from the section (EA 1985 No. 77 S 28).
From 1901, there was general agreement between the two major parties on the issue of
State-Commonwealth agreements on electoral matters, and a clear intention of all
governments to support moves for more uniformity.
Note: In 1976 the Local Government Act Amendment Act 1976 (No. 77 S 21), established that any
person enrolled on the House of Assembly roll was entitled to be enrolled as a local government elector.
This established adult franchise for local government.
48
3 The Voter and the Vote
3-1 Introduction
There are many issues involved in the apparently simple act of "the vote". Each is centrally
related to the question of a free and fair electoral system, and to the quality of the access of
the citizens.
While the franchise grants a right to vote, a number of issues remain. A democratic
voting system should, first of all, guarantee the secrecy of the vote. Then the vote, once cast,
needs to be secured and protected against tampering, or even loss. There needs to be a secure
structure and process in force to ensure that the person claiming to exercise his or her right
to vote is the person named on the roll. There needs to be a means to protect the democratic
election process from plural voting. These questions, and others, were addressed from the
beginning of representative democracy in 1857.
3-2 Mechanics of voting
The elections for the "Hybrid Legislative Council" 1851 and 1855, were conducted under
a system of open voting. This was a severe restriction on what would, today, be considered
as a fundamental right in a democracy - the right to a secret ballot - which was introduced
to elect the first bi-cameral Parliament in South Australia. This system which is still referred
to, for example in the United States, as the "Australian ballot". The voter, after presentation
of the voter certificate, received
a white printed voting paper, marked with the initials of the Returning
Officer ... containing the Christian name and surname of each Candidate,
and no other matter or thing; and there shall be provided separate
apartments or places forming part of the polling booth, into which the
voter shall immediately retire, and there, alone, and in private, without
interruption
cast his vote (EA 1855-6 No. 10 S 29). The ballot paper was then handed to the Returning
Officer, who deposited it, unsighted, into the ballot box.
The need for even further protection was noted in 1861 in a debate in the House of
Assembly on a possible system of absentee voting (see Section 4) (A Blyth, SAPD HA
1861: 651).
It was objected to this that the secrecy of the ballot might be violated.
Now he would say that wherever persons wished to invade that secrecy
they had now available opportunities for doing so; that was instanced in
the later election for Burra and Clare, when within a few minutes after
the close of the roll at Clare, a telegram had been sent to the newspapers
of the day announcing almost accurately the number of votes recorded
respectively for Mr Kingston, and for the rival candidate Mr Neales.
In 1908, the process was modified to the extent that the voter presented the ballot paper,
after voting, to the presiding officer so that the officer’s initials could be noted, and then the
voter placed it into the ballot box (EA 1908 No. 971 S 144).
As an aside, it is worth noting that, in his Second Reading speech on this Bill, the Chief
Secretary (AA Kirkpatrick, Labor) explained the major reason for the Electoral Code Bill
which "was a big one". His explanation raised a key issue of the quality of access.
49
3. The Voter and the Vote
Nothing was more difficult than to adjust electoral machinery. A great
deal of care had to be taken. Immediately a new idea was promulgated
the first question usually asked was ‘Is it a safe proposal?’ Their object
was to prevent corruption and secure a representative vote of the people
(SAPD LC 1908: 536).
In 1985, the requirement that the voter should refer a completed ballot paper to the
presiding officer for verification of the initials was removed; voters simply deposited their
ballot papers into the box (EA 1985 No. 77 S 79).
3-3 Secrecy and security of the vote
One prime issue in a democracy is the secrecy and security of the ballot. It is imperative, in
any democracy, that the voter should be able to record a vote in a manner which excludes any
possible pressure on him or her, or any possible repercussions for not voting "the correct
way". On this issue, South Australia (this time with Victoria) can claim to have led the world
in this essential component of a democratic election system.
The secret ballot was incorporated into the original 1855-56 Electoral Act.
From the first election in 1857, the "secret vote" applied to all South Australian
elections, and to all variations which were introduced in regard to the mechanics of elections
- including absent, postal, and assisted voting (see Section 4). There were constant references
to security and secrecy at the times of their introduction and amendment in the Electoral
Acts, and these are discussed below. There were, however, a series of amendments concerned
with secrecy and security.
3-3-1 Validity and secrecy of ballot papers.
The validity of the voting paper was protected in the first, 1855-66 Electoral Act by the
requirement that the presiding officer’s initials had to verify every paper. This has continued
to the present day.
This Act also provided that, after the return of the writ, "[a]ll ballot papers shall be
destroyed by the Returning Officer" (EA 1855-6 No. 10 S 34). This was maintained in
subsequent Acts (EA 1862 No. 13 S 13, for example). In 1879 (EA 1879 No. 141), the
provision was modified. As the Attorney-General put it (SAPD HA 1879: 206),
[i]t would now be the duty of
the returning officer to retain the
various voting papers objected to
by the scrutineers until the
period allowed to appeal against
the decision had expired.
The requirement that a voter must mark
the ballot paper "alone and in private" (EA
1855-6 No. 10 S 29) has been retained to
the present day, with modifications in
terms of "assisted voters" (see Section 5).
Interstate electors visiting South Australia in 1992 using
the privacy of cardboard voting compartments to
complete ballot papers for elections in their own state.
50
3. The Voter and the Vote
The Electoral Act of 1855-56 (EA 1855-6 No. 10 S 29) established a practice of
security in regard to completed ballot papers. Each voter was required to mark the paper in
secret, then fold the same paper and immediately deliver it to the presiding officer
... who shall forthwith publicly, and without opening the same, deposit
it in a box to be provided for the purpose; and no voting paper so
deposited in a box shall, on any account, be taken therefrom, unless in
the presence of scrutineers after the close of the election: Provided, that
no voting paper shall be received unless it be so folded as to render it
impossible for the returning officer, or any other person, to see for what
candidate or candidates the vote is given.
With the removal of the necessity to hand the paper to the presiding officer, these principles
apply today.
3-3-2 Proof of identity
At the 1857 election, proof of identity was established by the Voter Certificate presented by
each voter (see above).
This system was replaced in 1858. The new Electoral Act (EA 1857-8 No. 12 S 31)
continued the process of Electoral Lists, appeals, objections and Courts of Appeal, but
placed the onus of identification on the polling day onto the voter. On election day, each
voter, on appearing before the returning officer, was required to
state his Christian and surname, abode and profession, or occupation;
and, in the case of voting for a Member of the Legislative Council, the
nature of his qualification ... whereupon the Returning Officer ... shall
place a mark against the voter’s name on the electoral roll and hand to
such voter a voting paper
At the same time, the Act strengthened the requirement for identification (EA 1857-8 No.
12 S 32). If any two electors "entitled to vote in the same Electoral District" require it, the
presiding officer was required to "put to any voter at the time of tendering his vote, and not
afterwards, the following questions, or any of them, and no other":
FIRST - Are you the person whose name appears as A.B. in the electoral
roll now in force ...?
SECOND - Have you already voted at the present election?
THIRD - Have you, at the time of being registered, the qualification for
which your name now stands in the electoral roll ... and are you still
possessed of the same qualification?
[or as the case may be.
Are you of the age of 21 years, and did you at the time of being
registered, and do you still reside within the District of ...?]
In 1896 the instructions to the presiding officer in regard to identification had changed to
" on the request of a scrutineer", and to six questions "or some or one of them" (EA 1896
No. 667 S 127).
51
3. The Voter and the Vote
1. Are you the person whose name appears as A.B. on the roll in force
at this election?
2. Have you already voted, either here or elsewhere, at this election?
3. Are you of the full age of twenty-one years?
4. Are you to your knowledge on the roll for any other electoral
division ... ?
5. Do you reside within the division ... for which you now claim to vote?
6. Have you the qualification for which you name now appears on the
electoral roll in force at this election?
In 1908 (EA 1908 No. 971 Ss 142, 143), the questions were modified.
Every person claiming to vote shall state his Christian name and
surname, and, if so desired by the presiding officer ... any other
particulars which may be necessary for the purpose of identifying such
person ...
If the name ... is upon the signed list of voters the presiding officer ...
shall put the following question to such person:- "have you already voted
here or elsewhere at this election?"
In 1929, the Act (EA 1929 No. 1929 S 105) further modified the section. The returning
officer was required to put
to every person claiming to vote, the following question:
Have you already voted here or elsewhere in this election ... ?".
The officer then may, and, at the request of any scrutineer shall, also put
all or any of the following questions:Are you of the full age of 21 years?
Do you live within this district?
Are you qualified to vote?
Are you the person whose name appears as ... on the certified list of
electors for this polling place ...?
The Electoral Act of 1985 (EA 1985 No. 77 S 72) stated that
(1) An authorised officer shall, before issuing voting papers to a person
who appears personally before him claiming to vote, put the
following questions to that person:
(a) such questions as are necessary to establish the identity and
the address of the principal place of residence of the
claimant; and
(b) the following question: Have you voted before in this
election ...?
Throughout the 150 years of representative democracy, then, there has been serious attention
to a prime issue of the quality of access - the right of a citizen to vote, and the right to a
guarantee of "one person, one vote", and to the correct identity of the voter.
The last two aspects remain a problem. The issue of the identity of a voter is currently resolved simply
by asking "such questions as are necessary to establish the identity and the address". However, there are
too many potential loopholes in such a system of verbal questions and verbal answer, and it has the
52
3. The Voter and the Vote
potential to be easily manipulated. There is no statutory requirement for any proof of identity; no
requirement for proof of address; no means to establish with certainty that the person claiming a ballot
paper is the person named on the electoral roll. In times of pressure at polling places, it is possible that
the questions and responses become somewhat informal. Ironically, the 1857 voter certificate offered
more identification and security than does the "question and answer" system used today.
Further, as the system in force to stop plural or multiple voting is ineffective, there is no way of
rejecting such plural votes after the event. There are no means available to the presiding officers in any
polling place to check whether a person has "voted before in this election". After the polling, of course,
a rigorous check of the records from the polling places will identify every case where a name has been
"crossed off" a roll more than once. But this is after the event, and no action is possible to remove such
votes from the count.
There is no published data available on the extent of plural voting, nor on cases of people voting
in the names of others. It is likely that this does occur. As such, it is an attack on the veracity of the
election, on the equality of access to the process, and on democracy itself.
Any comparison with the level of "proof" necessary for other personal transactions in a modern
society points both to the low level of identification required in the election process, and to the relatively
simple solution. Obtaining a passport, opening a bank account, even transacting financial business,
requires a proof of identity. There is no reason why the most important personal action in a democracy
should not require a similar proof of identity, which could also record the issue of a ballot paper.
There should be a national "electoral card", either as a discrete card or as a component of an
existing national card. This would be a "photograph card", with electoral enrolment details in the "stripe".
The card could be renewed, say, every ten years, and, on the death of the holder, returned to the electoral
administration for destruction. The "stripe" could be used to record the issue of a ballot paper at an
election, and hence identify any attempt at a plural vote.
Whatever means are utilised, there is no doubt that there must be a better and more secure method
applied throughout Australia to guarantee the security of the vote. The 1980s proposal for an Australia
Card, a proposal withdrawn by the Labor government after opposition from the Liberal party, would have
provided such a means.
53
4 Extension of Voting Opportunity
4-1 Introduction
Any system of voting, to offer the widest access to all people, must contain provisions which
maximise the ability of all people to either attend a polling place, or otherwise to cast a vote.
An electoral system must include sufficient polling places, sited in a practical manner, within
easy reach, and open at reasonable hours. This is especially the case under "compulsory
voting" (see Section 16). Further, as some voters will have problems in attending a polling
place, alternative arrangements must be in place to facilitate them casting their votes with the
least difficulty. If not with the ease of people who can attend a polling place in close
proximity, then it would be with the least problems.
Modern electoral structures and processes in South Australia include sending electoral
visitors to hospitals, nursing homes and prisons, and mobile polling teams in the outback
areas. The modern "declaration" vote incorporates postal, pre-poll in person, and absent
voting, with polling facilities arranged interstate and overseas as well as within South
Australia. Such structures were very slow to develop in the Colony and State.
The introduction of representative democracy in 1857 expected voters to attend one of
a small number of static polling places. There was no alternative offered. For the record, the
following were available.
Electorate
Polling places
Adelaide
Corporation Acre, North Adelaide, Hindmarsh Square,
Whitmore Square, Light Square
Port Adelaide, Dry Creek
Hindmarsh, Hilton
Salisbury, Dry Creek, Gillies Plains, Smith’s Creek
Unley, Brighton, South Road
Noarlunga, Willunga, Happy Valley
Strathalbyn, Mount Barker, Echunga, Macclesfield, Milang
Woodside, Nairn, Kanmantoo, Hahndorf, Lobethal
Port Elliott, Goolwa, Yankalilla, Rapid Bay
Tanunda, Lyndoch, Gawler, Angaston, Truro
Burra, Clare, Auburn, Mudla Wirra
Port Adelaide
West Torrens
Yatala
Sturt
Noarlunga
Mount Barker
Onkaparinga
Encounter Bay
Barossa
Burra and Clare
A total of only 42 polling places for the whole colony, of which 16 were in the Adelaide
area!
4-2 Polling days and hours
The 1857 elections were held under the terms of the Electoral Act of 1855-56 (EA No. 10 S 29).
The election ... shall be held before the Returning Officer or his deputy,
and the voting at every such election shall commence at nine o’clock in
the forenoon, and shall finally close at four o’clock in the afternoon of
the same day".
54
4. Extension of Voting Opportunity
The elections for the 17 election districts and 36 members were arranged by the Writ issued
by the Governor on 9 February. Six electorates saw nine members elected unopposed on the
nomination days of 23 and 26 February. The elections in the contested districts were all held
on the same day - 9 March. This event, of all elections on the same day, was not followed in
the next 40 years. The 1860 election saw polling on different days in different electorates,
as did most of the colonial elections. In 1896, the law was changed (EA 1896 No. 667
S 87) to set Saturday as the only day which could be set as polling day throughout the State.
Hours of polling varied over time, the last change being in 1981.
9am to 4pm (1851 Ordinance No. 1; followed in EA 1855-6 No. 10 S 29);
9am to 5pm (EA 1857-8 No. 12 S 31);
8 am to 5pm (EA 1879 No. 141 S 58)
The government argued that
[t]his would allow those engaged in business till 6 o’clock an opportunity
of recording their votes. The principle had already been confirmed in the
municipal Corporations Bill. Two objections had been raised to this
proposed extension. One was that it would necessitate men working
more than eight hours per diem, and the other that it would tend to
drunkenness. The first objection could easily be met by having more
clerks, while he could not see how drunkenness would be increased by the
extension of the hours. The way to meet the difficulty would be to close
the public houses on election day, as was done in many parts of America.
Others, like JG Ramsay, argued that the "proposal was merely intended to convenience
dwellers in the suburbs, while it would be an inconvenience to numbers of residents in the
country ... Under the new system it would be 1 or 2 in the morning before the result of the
poll was known in many places". HE Bright was convinced that it "would cause great
inconvenience in the country districts with regard to the carriage of the ballot-boxes to the
central polling-booth" (SAPD HA 1879: 1861-2).
8am to 6pm (EA 1883 No. 280 S 15).
This extension was moved and supported as it"had been found out that
many working men, especially in large towns, were deprived of the
opportunity of exercising the franchise (Hear, hear)" (SAPD LC 1883:
357).
8am to 7pm (EA 1889 No. 469 S 1)
8am to 8pm (EA 1941 No. 26 S 5).
The Chief Secretary noted (G Ritchie, Liberal, SAPD LC 1941: 1123) that " the hours
proposed were similar to the hours of the Commonwealth elections".
8am to 6pm (EA 1981 No. 35 S 37).
By the 1880s, the combination of shorter working hours and the increase in the
facilities for the electors meant that the time of polling could be reduced without curtailing
the quality of access.
55
4. Extension of Voting Opportunity
4-3 Absent voting
By the election of 1899, the number of polling places had grown to 30 in the greater
Adelaide area, and 233 in the country, with a further 14 in the Northern Territory. Despite
the growth, there were localities, and some occupations which involved long-term absence
from home, that were denied adequate access to polling places. The first attempt to deal with
this came only four years after the first election in 1857, but it failed to win majority support
- partly through fears of a loss of secrecy and security.
In 1861, an attempt was made to introduce a system of "absent voting". A
consolidating Electoral Act Amendment Bill included the following proposal (A Blyth,
SAPD HA 1861: 651).
It was proposed in this Bill, so that all parties should have the
opportunity of voting, that parties should have the opportunity of
doing so through the Post Office. In the district of Streaky Bay there
were a number of inhabitants who were 200 miles distant from a polling
booth, therefore the Committee had prepared a means of voting through
the Post Office. It was objected to this that the secrecy of the ballot
might be violated ... He was satisfied that under the proposed regulations
... every reasonable secrecy would be secured.
Most members, however, agreed with GS Kingston (SAPD HA 1861: 654).
He was altogether opposed to the proposed system of voting ... because
he thought it would have the effect of doing away with the great
principle of the ballot, and of opening the door to fraud and corruption
... The proposition to vote through the Post Office was quite ridiculous
... it could be best accomplished by increasing the number of pollingplaces.
The Attorney-General also opposed the measure (SAPD HA 1861: 656).
He maintained that neither the House nor the country was prepared to
depart in the slightest degree from the principle of secret voting ...
where, for instance, a large number of men were employed by one person,
those men might consider their master the best witness they can have;
and then such a person would be aware how those men intended to vote,
and that knowledge might be useful for improper purposes. [However]
... if the ballot at the same time [could] be preserved intact, it would be
advantageous.
Others also had concerns. W Dale feared that the proposal "would interfere with the true
working of the ballot" (SAPD HA 1861: 654), and EH Grundy (655) also opposed the
measure as "many absentees would not be able to judge well of the qualification of the
candidates". Putting Grundy’s complaint aside, there was reason to worry whether the
secrecy and the security of the vote would be guaranteed. The proposal was defeated in the
House of Assembly.
Thirty years later, in 1890, the problems had apparently been resolved, and the first step
was taken to enlarge the opportunity to vote to those who had difficulties in attendance at
static polling places. The ability to vote became much easier for many people, resulting in an
increase in the quality of access in the system.
56
4. Extension of Voting Opportunity
The subtitle to the Absent Voters Electoral Act (EA 1890 No. 498) set the purpose:
"An Act for the purpose of giving Greater Facilities to Absent Voters to record their Votes
at Election of members of the Legislature of South Australia". The Act (S 3) included: "Any
voter who shall have reason to believe that he will be absent from the electoral district in
which he is registered as a voter on the day of voting" shall be entitled to an absent vote.
The Bill for this Act was originally subtitled the "Seamen’s Electoral Bill" (SAPD HA 1890:
343), and the proposer, GF Hopkins, set out the reasons.
The electoral roll of Port Adelaide, according to the last return,
contained 5,073 names, and there were many seamen who would not
cause their names to be placed on them because they knew that they
would have no chance to record their votes. It was cruel not to allow 800
seamen, who had to abide by the laws of the Parliament, to have a voice
in the choice of candidates to parliament ... farmers could go to the
polling booth if they liked to take the trouble to do so, but seamen could
not ... Some hon. members said that the Bill would interfere with the
system of the ballot. It did not. The thing was positively secret ... [He]
had many friends in the railway service, and he would like to see the
principle of the Bill extended to all absentee voters ... but there must be
a starting point - the seamen had the first claim to consideration.
WB Rounsevell agreed.
The avocations of these men necessitated their absence from home ... he
believed that the House would approve of a scheme which would carry
on the great broad principles of manhood suffrage to give those electors
an opportunity of exercising their right to vote. He was prepared at the
right time to support an enlargement of the scope of the Bill (SAPD
HA 1890: 343).
The Chief Secretary, John Cockburn, put the view of the government.
As it was a new departure in legislation the experiment should be
distinctly limited, and if it proved successful it might be very properly
extended (SAPD HA 1890: 344).
Charles Cameron Kingston, a leader in innovation, was convinced that
it was highly desirable that all should be treated alike ... Why should they
make fish of one and flesh of another? ... similar circumstances existed
in thousands of other cases, and why should not similar relief be
afforded? Engine drivers and others engaged on the railways ... could not
vote, simply because they left early in the morning and did not get back
in time to vote. Hundreds of men were engaged in remote parts of the
colony, and could not possibly return to Adelaide to vote, unless they
surrendered their employment (SAPD HA 1890: 346).
The Bill won support - and was extended as Kingston requested. The Act (S 3) allowed any
person to apply for an absent vote, and receive a certificate granting that right. On
application to vote, the person was asked the relevant identifying questions (see above), and
was granted a certificate "made on the back of an envelope... together with a voting-paper,
with instructions on the back of the voting-paper how to vote." The voting-paper included
57
4. Extension of Voting Opportunity
a counterfoil for the signature of the voter and for the witnessing signature of the postmaster
(S 7). The voting-paper, once marked, was placed into an outer envelope in the presence of
the post-master (S 9), and presented for delivery. The security and secrecy of the vote was
stressed in the legislation, from the stage of the vote, to the identification of the voter on
receipt of the envelope, and in the opening and counting of such votes. Absent voters could
vote only in the presence of a postmaster, and were required to write the names of the
candidates for whom they wished to vote on the inside of the ballot paper (S 8).
This provision had worried some members. To HWA Grainger (SAPD HA 1890:
346), when told that the postmaster would have to identify a person requesting an
absent vote,
we should want a new set of postmasters, because the postmasters would
have to be continually travelling up and down the streets to become
acquainted with everybody ... The Bill was against the principle of the
ballot, and it was against their democratic principles.
VL Solomon (SAPD HA 1890: 346) focussed his opposition on a different aspect.
Clause 8 provided that the elector should inscribe in his own
handwriting the names of the candidates he desired to support. The very
fact of any voter being permitted to write the name of a candidate must
strike a deathblow to the secrecy of the ballot-box.
The second reading debate on the Bill in the Legislative Council also provided strong
support, not only for the seamen, but for an expanded scheme. The right of an absent
vote was
recognised as desirable to encourage persons in this way to take an
interest in the affairs of the colony. Every precaution was taken to
prevent the secrecy of the ballot being interfered with. ... Seamen and
others, it might even be members of the Federal Council, might not be
present when votes were recorded ... every opportunity should be
afforded for everyone to record his vote (SJ Magarey, SAPD LC 1890:
2459-60).
In 1893, the requirement for a voter seeking an absent vote by attending personally on the
Returning Officer was amended to allow applications for a certificate to be made through
the post office. This was an early form of pre-poll voting. The declaration could then be
witnessed by the postmaster or a Justice of the Peace, thus extending the ease of access.
Security was enforced by checking the signature on the application with the signature on the
completed voting envelope (EA 1893 No. 577). In 1896 (EA 1896 No. 667 S 99), the
process was made easier through a right of postal application and postal return.
The right to an absent vote was extended: in 1896 to electors who believed that they
would be more than 15 miles from the polling place at which they were registered, and to
female electors who had reason to believe that their health would prevent them from attending
a static booth (EA 1896 No. 667 S 98); in 1901 (EA 1901 No. 759 S 8), to all persons who
"are in quarantine" within the State at the time of any election, irrespective of any distance
from any polling place; in 1908 to electors who had reason to believe that they would be in
quarantine within South Australia on polling day (EA 1908 No. 971 S 111); in 1925 to male
electors, as well as women, on similar health grounds (EA 1925 No. 1691 S 2).
58
4. Extension of Voting Opportunity
The 1908 Act also provided that an absent vote could only be at a post office, witnessed
by the postmaster. The "package" was changed so that instructions were given to the voter
on the left hand side of the ballot paper, and the voter wrote the name of his preferred
candidate on the right hand side (Ss 112-3).
The Act also incorporated a new means to ensure the validity of an absent vote. The
Chief Secretary (AA Kirkpatrick, Labor, SAPD LC 1908: 538) explained.
The detailed instructions were to ensure that no person should vote both
as an absent voter and at a polling booth, and also to safeguard the
secrecy of the ballot. To ensure the former, no declaration was
scrutinised until the list of voters for the polling place at which the voter
would be entitled to vote had been received by the presiding officer, so
that he might see that the elector had not voted there also. If it was
found that he had voted at a polling booth, the declaration and ballotpaper were rejected; if he had not, the ballot-paper, which remained
folded up throughout, was detached from the declaration, and at once
deposited in a ballot-box, to be afterwards counted.
In 1913, this right of access was extended to absent voting at static polling places. Such
voters placed their completed ballot paper in an envelope and handed the sealed envelope to
the returning officer (EA 1913 No. 1147 S 25). This Act (S 19) also expanded the category
of people who could act as witnesses, including "medical practitioners" and postmasters. In
1925, the list of people authorised to witness absent vote declarations was extended to
include roadmasters employed by the Commonwealth Railway Service and ministers of
religion (EA 1925 No. 1691 S 3).
In 1929, the concept of "absent vote" was divided into two types. The existing absent
vote, which was generally by post, but could be by attendance at a static polling place, was
separated into two categories of Absent and Postal (see below) (EA 1929 No. 1929 Ss 73,
78, 103). The right to an absent vote was also applied to any voter who attended a polling
place within his own district, but outside his or her subdivision on polling day. In addition,
the absent voter was provided with a ballot paper of the same form as that in the static
booths, and was required to mark them in a similar way (S 103).
In 1937 (EA 1937 No. 2379 S 6), the right to an absent vote was extended to any
polling place within South Australia on polling day.
In 1985, (EA 1985 No. 77 Ss 73, 74, 82), all voting other than personal attendance
at a polling place within the electoral district was subsumed under the title of declaration
voting (see below). From that date, voters seeking an absent vote attended any polling place
and fulfilled the process of a declaration vote.
4-4 Postal voting
Provisions for formalising postal voting were introduced in 1929 (EA 1929 No. 1929 S 73),
for
[a]n elector who(a) will not be throughout the hours of polling on polling day be within
the Assembly district or Council division .. for which he is enrolled;
(b) will not ... be within five miles by the nearest practicable route of any
polling booth;
59
4. Extension of Voting Opportunity
(c) will ... be travelling under conditions which will preclude him
from voting at any polling booth;
(d) is seriously ill or infirm ... precluded from attending at any
polling booth to vote, or, in the case of a woman, will be
approaching maternity ...
The right involved a declaration "in the presence of an elector", forwarded to the relevant
officer.
The Act contained clear directions for the security and secrecy of a postal vote. The
elector was required to sign the certificate in the presence of a witness, mark the ballot paper
in private, hand the folded paper to the witness who would then place the ballot paper in an
outer envelope for postage by the voter (S 81). The Act specified categories of electors who
could be witnesses (Ss 80, 81) - a long list, most of whom were public servants. Candidates
at the election were specifically barred from acting as witnesses of the vote, but could witness
applications. The latter was removed in 1981 (EA 1981 No. 35 S 32). The Act also
provided for sight-impaired voters who could utilise the assistance of a person, including the
witness, to vote on his behalf.
The 1929 Act left little
"space" in the time-frame: the
declaration seeking a postal vote
could be received as late as 6pm on
the day preceding polling day to
comply (S 76). This was modified
(EA 1969 No. 50 S 14) to 5pm in
1969, to 9pm on the Thursday
before polling day in 1985 (EA
1985 No. 77 Ss 74, 82), and to
5pm on the Thursday before polling
day in 1988 (EA 1988 No. 4 S 15).
Under the 1929 Act (S 86),
completed ballot papers had to be
received by the returning officer by
the close of polling on polling day.
In 1941 (EA 1941 No. 26 Ss 3,
4), provision was included to allow
a postal vote to be delivered to any
returning officer within the State
by the close of polling on polling
day if the paper could not reach
the relevant returning officer by
that time. The time of receipt
could be up to three days after the
polling day, later extended to
seven days in 1955 (EA 1955
No. 52 Ss 8, 9).
Postal voting was introduced in 1929; the present
application form outlines the reasons for obtaining
a postal vote.
60
4. Extension of Voting Opportunity
In 1937, the first provision for a postal voting right for an elector not in the Assembly
District or Council Division on polling day - was transferred to an absent vote (EA 1937
No. 2379 Ss 4, 6). In 1959, a specific provision was included for members of religious
orders who were not allowed to leave the order’s precincts to vote (EA 1959 No. 6 S 3).
In 1965 (EA 1965 No. 5 S 134), the Act was amended to build in a logical process for
the declaration of some polls for districts which included remote polling places.
Where the returning officer is satisfied that any ballot papers
(a) issued at a remote polling place, or
(b) posted or delivered to him ...
could not possibly affect the result of the election, he may, with the
concurrence of the returning officer of the State, declare the result
of the election and return the writ without awaiting the receipt of the
said ballot papers.
This dealt with what the Chief Secretary, CR Story (Liberal, SAPD LC 1965: 1174) called
the "embarrassing situation in which Parliament had found itself" in the declaration of the
results of two by-elections. Two different assistant returning officers had given conflicting
interpretations of the existing provision. The matter was cleared up by the amendment.
The special case of "prescribed postal elector" was created in 1976 (EA 1976 No. 114
Ss 4, 14). This category applied to any elector who "if he was resident, on a polling day, at
his usual place of living, he would be entitled to have delivered or posted to him a postal vote
certificate ... and ballot paper ... [but] by reason of the infrequency of the mail service at that
place ...". This removed the necessity for an application at each election.
4-5 Pre-poll voting
The Electoral Act was amended in 1985 (EA 1985 No. 77) to introduce pre-poll "inperson" voting at designated pre-poll locations. This extended the means and the
opportunity to vote to citizens in remote areas, and to people travelling interstate and
overseas. The pre-poll vote was available to any person who was:
- more than 8 km from a polling booth on polling day;
- travelling under conditions that would prevent them attending on
polling day;
- ill, infirm or disabled or caring for such a person;
- in advanced pregnancy;
- members of a religious order or because of religious beliefs;
- an inmate of a declared institution, or
- prevented from voting on polling day by other reasons of a prescribed
nature (S 71).
In 1988 (EA 1988 No. 4 S 14), this right was extended to any voter who could not
reasonably be expected to be absent from work during the hours of polling on the designated
polling day.
61
4. Extension of Voting Opportunity
The elector voted, in person, before
an authorised electoral officer. The voter
signed the appropriate declaration form,
marked the ballot paper in private, then
placed the paper in the declaration
envelope and deposited it into the ballot
box (EA 1985 No. 77 S 82).
In the 2002 election, there were 42
pre-poll voting centres established,
including 19 intra-state, 12 inter-state and
territory locations, and 11 overseas.
Mount Gambier Returning Officer Trevor Vinall
(left) and Commonwealth Electoral Registrar Ian
Wheller preparing for pre-poll voting at the State
election in February 2002.
4-6 Declaration voting
In 1985, postal, pre-poll and absent votes were subsumed under the general heading of
declaration votes (EA 1985 No. 77 S 71). A declaration vote was available to an elector
(a) who attends on polling day at a polling booth outside the district for
which he is enrolled ...[ formerly absent voter]
(b) who (i) will not, throughout the hours of polling day, be within 8
kilometres by the nearest practicable route of any polling booth;
(ii) will ... be travelling under conditions that preclude voting at
a polling booth;
(iii) is, by reason of illness, infirmity or disability, precluded ...
(iv) is, by reason of caring for a person who is ill, infirm or
disabled ...
(v) is, by reason of advanced pregnancy ...
(vi) is, by reason of membership of a religious order, or religious
beliefs ...
(c) who is an inmate of a declared institution (see below);
(d) whose name, as a result of an official error, does not appear on the
certified list of electors...;
(e) who appears from a record erroneously made ... to have voted already
in the election;
(f) whose address has been suppressed from publication.
In 1988, membership of a religious order or religious beliefs qualified for a declaration
postal vote (EA 1988 No. 4 S 15).
62
4. Extension of Voting Opportunity
The establishment, 1890, of the right to an absent vote was a major development in terms of extending
the opportunity to vote - and the opportunity to vote with the greatest ease - to all citizens. Since then,
ease of access has been further extended with the various sub-types of declaration votes - postal, prepoll, electoral visitor in a range of institutions, and mobile polling.
However, these measures were introduced to facilitate voting, and not to offer a ready alternative
voting method for the majority of the citizens. In recent elections, there has been a growing tendency for
the political parties, as part of their campaign strategies, to publicise and even encourage voters to apply
for a postal vote. Party election material often includes an offer to forward the "paper work". But this
apparently "charitable" offer contains an important element of self-benefit to the parties. They can gain
knowledge about the personal details and likely voting intentions of an elector, and record this material
on their data-banks for future campaign use.
This promotion of postal voting by the parties has led to a marked increase in the proportion of the
total votes which are postal. There seems to be no necessity for this. The great majority of people can
attend a polling place on polling day, without any degree of hardship. The publicity and processing for
postal votes should be a matter for the electoral jurisdiction only, and should not be part of the campaign
methods of political parties.
Overall, the electoral legislation does offer a broad set of alternative voting means to people who
find attendance at a polling place impossible, or a hardship. This has increased the quality of access of
all citizens to their right to vote - especially necessary where "compulsory voting" is applied (see Section
16 below).
63
5 Voting Assistance
5-1 Introduction
The previous discussion of the development of absent, postal, pre-poll and declaration
voting was concerned with offering voters easier access in terms of an opportunity to vote.
The following section develops this focus in terms of assistance provided to the voter in a
wider range of voting situations, which has allowed more efficient and more effective access
to the vote.
The first amending Act concerning such assistance was carried even before the first
election. In 1856 (EA 1856 No. 8), a single-clause Act incorporated the provision that
[i]n the event of two or more candidates to represent any electoral
district being of the same name, the voting-paper ... shall contain the
description of each such candidate, in addition to his Christian and
surname.
5-2 Static booths
For the great majority of voters, throughout the history of South Australian elections, voting
has been a matter of attending a polling booth and casting a secret vote. This was the only
method at the inauguration of responsible government in 1857. Since then, there has been a
series of amendments to the Act designed to assist voters for whom this apparently simple
requirement caused problems.
5-2-1 Incapacity
Until 1879, the voter was required to mark the ballot paper alone and in the privacy of a
booth. In that year, a Bill which "was prepared on the joint recommendation of the various
Returning Officers of the Province" (SAPD HA 1879: 205) amended the Act to provide
that a blind person could be accompanied in the voting compartment by an agent, approved
by the voter, who could mark the ballot paper on his behalf (EA 1879 No. 141 S 58). This
provided significantly increased access for sight-impaired electors.
The Attorney-General (WH Bundey, SAPD HA 1879: 206) explained the reason for
the innovation.
His hon. friend had shown him a letter from one of his constituents who
was blind, and he was anxious that instead of the returning officer having
power "openly to indicate on behalf of such voter the name of each
candidate for whom such voter shall state he desires to vote", there
should be a provision inserted enabling a person blind or otherwise
infirm to obtain the assistance of a confidential agent - it might be his
wife or son - who could go into the booth and affix the signature instead
of the disabled voter himself.
An interesting proposal, as the wife had no right to vote!
This Act (S 58) also clarified the right of an elector to have a "second chance" to record
a formal vote.
64
5. Voting Assistance
Any person who, by mistake or accident, shall spoil any voting paper,
may, before the same shall have been deposited in the ballot-box, upon
signifying the same to the returning officer and delivering up the spoiled
voting paper, obtain a fresh voting paper, and the spoiled voting paper
shall then and there be destroyed, by burning the same.
In 1929 (EA 1929 No. 1929 S 110), this right of assistance for a blind person was
extended to any voter who satisfied the presiding officer that, due to sight impairment or
physical incapacity, he could not mark the ballot paper himself. This clause also covered the
issue of a voter who "satisfies the presiding officer that he is so illiterate that he is unable to
vote without assistance". The voter could appoint an assistant to mark the ballot paper. If
required or requested, the presiding officer could act as the assistant. In the case of an illiterate
voter, the presiding officer was required to act as the assistant "in the presence of such
scrutineers as are present".
The general right of assistance had been broadened in 1908 (EA 1908 No. 971 S 147),
when the right to assistance to mark the paper was made available to any person who satisfied
the returning officer that they could not, for any reason, vote without assistance. This was
not a contentious measure; in fact, the Chief Secretary (AA Kirkpatrick), in the second
reading speech (SAPD 1908: 536-8) noted that
although the Bill was a big one, it did not contain any debatable clauses,
because while it was an amending Bill, it was also a consolidating
measure, and fully 90 per cent of the clauses were machinery provisions.
In 1969, the principal Act of 1929 was amended to give the sole authority to act as an agent
to the presiding officer, who was required, "in the presence of another officer" to mark the
ballot paper "in accordance with the voter’s directions" (EA 1969 No. 50 S 30).
In 1981, an Electoral Act Amendment Act (A 1981 No. 35 S 43) restored the wider
choice of assistants available to such voters. Under this Act, "if a voter satisfies the presiding
officer that he is unable to vote without assistance, the voter may be accompanied by an
assistant of his choice while in the polling booth". The Act also provided that the presiding
officer could object to the chosen assistant, and require that another assistant, acceptable to
the officer, be chosen.
This Act also specified the manner of assistance which could be offered:
(a) he may act as an interpreter between the voter and the presiding
officer;
(b) he may explain the ballot paper, and the voter’s obligations ... in
relation to the marking of the ballot-paper;
(c) he may assist the voter to mark the ballot-paper, or may himself mark
the ballot-paper at the voter’s direction;
(d) he may fold and deposit the ballot-paper in the ballot-box.
Secrecy and security was strengthened by a sub-clause which stated that "[a] person who
assists a voter under this section shall not disclose any knowledge of the vote of that voter.
Penalty: One thousand dollars or imprisonment for three months".
In recent years, there has been a continuing programme of increasing the quality of access for disabled
persons. The various amendments to the Electoral Act have been a result of the commitment within the
parliaments to this aim. On occasions, as in the following example, the sensible and logical practice of
elections have preceded the law.
65
5. Voting Assistance
5-2-2 Near the polling place
In 1997 (EA 1997 No. 22 S 15), an important innovation was written into the Electoral
Act. This provided a legal authority for a form of assistance which had previously been
offered as an informal procedure by presiding officers. It was a case of the law following the
precedent of sensible and compassionate practice.
If a voter satisfies the presiding officer that the voter is unable (because
of illness, disability, advanced pregnancy or other condition) to enter the
polling booth to vote, the presiding officer may allow the voter to vote
at or near the polling place outside of the polling booth.
To ensure secrecy and security of the vote, the officer was required to invite one scrutineer
for each candidate to be present. After the voter has "marked the ballot paper", the officer
was required to ensure the same standards of secrecy and security which applied inside the
booth, by ensuring that the ballot paper was folded "to conceal the vote", and placed into
an envelope which is sealed. The envelope was then opened inside the booth and the folded
paper placed into the ballot box.
This received bipartisan support in the Parliament. The Labor Opposition (P Holloway,
SAPD LC 1997: 922) saw the amendment as
simply to enable physically disabled voters to be able to cast their vote in
the vicinity of a polling booth. It has been the practice in the past that
electoral officers have used common sense and have taken ballot papers
out to physically disabled voters just outside polling booths. This is a
sensible change and we support it.
The electoral administration has also maintained a commitment to offer disabled people easier access
to voting facilities. The SEO’s Statistical Returns for the 2002 elections noted that 480 polling booths 69.4 per cent of the total static booths - were wheelchair accessible, an increase of 4.0 per cent since
the 1997 elections. This is, in fact, a notable success. The SEO does not own the polling booth premises.
It rents them, or has an arrangement with the Department of Education, Training and Employment for
the use of its premises. Hence facilities for the disabled, including wheelchair access, are a matter for
the owners or managers of the properties.
5-2-3 Provisional voting
The right to vote requires that a voter must be given the opportunity to vote, and that
opportunity should be made available even when apparent administrative errors have
occurred. The Electoral Act was amended in 1946 to allow for provisional voting (EA 1946
No. 35). This provided for any case where a voter attends a polling place to vote, and is
advised that his name is either omitted from the certified list, or is already struck out, "owing
to an error of an officer or a mistake of fact". In these situations, the voter was able to make
a declaration, cast a vote, and have that vote accepted if the returning officer is satisfied, after
examination, that the case was valid.
66
5. Voting Assistance
As the second reading speech of the Liberal government noted (SAPD LC 1946: 1045-6),
During the last State elections ... cases came under my notice of electors
whose names had inadvertently left off the roll - a printer’s error possibly
- and when they reached the polling place there was no provision whereby
they could record their vote, although they produced an old roll showing
their name on it and proved that they had never left the district.
He continued, pointing out that unless the amendment was supported, some voters would
be left in a real dilemma, as "compulsory voting" had applied to an election for the first time.
The law is that if they are not enrolled they are liable to a penalty, and
if they do not vote when enrolled they must give a satisfactory
explanation or be fined. The provision in the Bill is copied from the
Commonwealth Act and will bring the State electoral law into
conformity.
He gave examples:
I know of people who have resided in a district for 60 years and voted
on every occasion possible, but through some error their names were
struck off the roll. At the last Federal elections returned soldiers who
had been overseas for several years found on their return that their names
had been struck off.
In 1985, provisional votes were subsumed under the general category of declaration votes
(see above).
5-2-4 The right to attend
As attendance at a polling place was originally the exclusive manner of voting, and as the
times and days for polling were set, and as voting was voluntary, there needed to be a
situation where voters could expect to be able to attend, and have a guarantee of their right
to attend.
For this reason, an amendment to the Electoral Code (EA 1908 No. 971 S 194) sought
to increase the access of voters to their right to vote.
(1) If any employee who is an elector notifies his employer before the
polling day that he desires leave of absence to enable him to vote at
any election, and the employer does not, if the absence desired is
necessary to enable the employee to vote at the election, allow him
leave of absence, without any penalty or disproportionate deduction
of pay, for such reasonable period, not exceeding two hours, as is
necessary to enable the employee to vote at the election, such an
employer shall be guilty of a contravention of this Act.
(2) If any employee, having obtained leave of absence under this section,
does not vote at the election, he shall, in the absence of a satisfactory
reason, be guilty of a contravention of this Act.
(3) This section shall not apply to any employee whose absence may
cause danger or substantial loss in respect to the employment in
which he is engaged.
67
5. Voting Assistance
In 1985, the wording of subsection (2) was changed to recognise from "does not vote" to
"without a genuine intention of doing so" (EA 1985 No. 77 S 130).
A point made in the introduction to this report needs emphasis. It was usual, in the case of minor,
especially "machinery" amendments to Acts, and these 1985 amendments are cases of both, that there
was very rarely any mention of them in the parliamentary debates. This was especially the case when an
amending Bill included one or more controversial sections, as well as the "machinery" amendments. The
focus in the debates was on the former; the latter were usually accepted without debate.
5-3 Voting at other than static booths
In 1976, the Electoral Act was amended to provide for a major improvement in the quality
of access to the vote for people unable to attend a polling place. Until 1976, such voters
were required to obtain an absent vote, through Post Offices, in the early years, and, later,
a postal vote.
5-3-1 Declared institutions
A new section was incorporated into the Electoral Act in 1976 (EA 1976 No. 114 S 23).
This established the concepts of "declared institution" and "electoral visitor". This
programme was the first such improvement of access in Australia.
The Labor Government explained the prime purpose of the new concept.
This voting procedure should eliminate the possibility that exists in the
case of postal voting of an elector being improperly influenced in his
vote by another person (SAPD HA 1976: 1615).
The Liberal Opposition agreed with the proposal, and J Coumbe (SAPD LC 1976: 1997)
considered that
[i]t gets over a problem. Allegations have been made on occasions of
abuse of the [postal vote] system; certainly the system leaves itself open
to abuse. Serious allegations have been made in the past ... blind people
... One must go to extraordinary lengths to ensure that these people
receive the vote in a proper way ... I am pleased that the Bill provides for
two persons; one person, irrespective of his intentions, could leave
himself open to criticism or charges ... I believe this is overall a move in
the right direction.
The declared institutions included any hospital, any nursing home, and "any other
institution that has or may have inmates who are electors and for any reason precluded from
leaving the institution and attending at a polling place to vote". The Electoral Commissioner
was charged to appoint a "sufficient number of persons to be electoral visitors; [and] cause
declared institutions to be visited" for the purpose of receiving votes. The visitor could
require the institution to provide a complete list of names and addresses of all adult inmates,
and any other information necessary to decide whether the inmates are qualified to vote. This
has now been qualified due to the modern privacy provisions.
68
5. Voting Assistance
The period of voting was set at commencing at the time of the availability of the ballot
papers until the day preceding, or on, polling day. The process of certification and voting
followed the rules established for postal voting, with the electoral visitors charged with
certificating the voter and the vote, and guaranteeing secrecy of the vote. This was achieved
by the requirement of an attendance of two electoral visitors - one of whom was the
"checker", whose tasks included: "[i]f the other electoral visitor ... is satisfied that the
requirements ... have been complied with he shall sign his name in the space provided ...".
This innovation dealt with a perception held by some that, especially in aged-care institutions and
hospitals, the postal voting system was open to potential abuse. Where inmates of such institutions were
assisted to vote, there was always a possibility that irregularities could occur, that votes could be
recorded other than the specific choice(s) of the inmate.
The electoral visitor system, established and administered by the South Australian State Electoral
Office(SEO), using SEO-accredited officials as the visitors, and with the two-person team as a further
check, established a practice which could be seen to be as close to secret and secure as possible.
5-3-2 Mobile polling
Mobile polling, the principle of taking the polling place to voters in isolated areas, had been
utilised by the electoral administration in a relatively experimental Commonwealth form in
the 1970s. In 1980, it became the standard form of polling in outback areas, and was most
developed in the Northern Territory.
The purpose of mobile polling was to provide a means to overcome the difficulties - and some alleged
malpractices - in the existing system of postal voting in remote areas. Some of the difficulties were
economic - it does not make sense to offer static booths, for a period of 10 hours on polling day, to small
groups of people dispersed across wide distances. The existing alternative - the postal vote (and
automatic postal vote) system was alleged, by people on all sides of politics, to be open to abuse.
Further, such allegations were especially related to the Aboriginal communities in the outback. Postal
voting assumes an adequate knowledge of English and of the electoral system; in the absence of both,
there were allegations of partisan "assistance" being given.
The administration of mobile polling involves a programme of advertisement and publicity,
the provision of interpreters at the polls, and at least a two-person team to assist with voting.
Hence a great improvement in the quality of access.
The Electoral Act of 1985 introduced the concept of mobile polling in remote areas
in South Australia (EA 1985 No. 77 S 77). The Electoral Commissioner was charged with
the responsibility to publicise, "by notice published in a newspaper circulating generally
throughout the State", the times and places of mobile polling. The period for mobile polling
was set at "the 4 days up to and including polling day", and the times of opening and closing
were "determined by the Electoral Commissioner".
This major innovation in improving access to the vote did not receive "headline"
treatment in the government’s second reading speech. The only comment was that the clause
provides for polling at static and mobile polling booths. In the case of
voting at mobile polling booths in remote subdivisions, public notice is
to be given of the times and places at which the booth will be open for
polling (SAPD LC 1985: 4254).
69
5. Voting Assistance
G Gunn, for the Liberal Opposition (SAPD
HA 1985: 4348) hoped
that the provisions dealing with
mobile polling booths are
successful, because they will operate
basically in my district, I want to see
(and I have some confidence in the
Electoral Commissioner) that some
of the unfortunate things that have
happened in the past do not happen
again. Undue pressure has been put
on people ... I hope this provision
operates successfully, because it will
allow those people to cast a vote
fairly in a manner in which they so
determine.
It is surprising that this major innovation did not
prompt more debate. One reason may have been
that mobile polling had been utilized by the
Australian Electoral Commission and in the
Northern Territory for some years, and had proved
to be a success. It is as likely that all members of
the South Australian parliament realised the extent
to which the proposal would significantly increase
access, and offer a more secure and secret means
of voting, for a previously disadvantaged group of
people.
In the 2002 election, the mobile polling
system involved the issue of 1 723 ordinary
and 673 declaration papers. Twelve mobile
polling teams were involved in the election
districts of Giles, Flinders, Stuart,
Hammond, MacKillop, Chaffey and Goyder.
The locations visited are stated in the SEO
Statistical Returns on the 2002 elections.
Mobile polling is considered essential for
ensuring electors in remote areas have access
to voting facilities.
70
6 Voting Systems and Methods
6-1 Introduction
There is a very wide variety of both voting system and voting methods across the democratic
world. These can be divided into two basic types. The British tradition is based on a plurality
system - First Past the Post (FPP). The European tradition has more examples of varieties
of proportional representation (PR).
The British system of translating votes to seats utilises only one "round" of voting and
the successful candidate has to win only a plurality - a simple majority - of the votes. This
system is still utilized in many former British colonies - such as the United States, Canada,
India and South Africa. It was natural that it would be accepted as the first system in the
Australian colonies, including South Australia.
Most European nations have used some form of proportional representation at some
stage. This system bases "success" as a candidate on a quota of votes, not a majority. It will
be further explored below.
While the Australian colonies, at the introduction of representative democracy, all
applied the system of First Past the Post, the history since the 1850s has been one of variety
and experimentation. Probably more than any other democracy, the Australian electoral
systems have shown more changes and more experimentation than anywhere else. This has
certainly been true of South Australia. Unlike most other democratic nations, there is a wide
variety between the electoral systems of the Commonwealth and the States. There is no
uniform system.
This is a problem for access. If voters have the possibility of facing up to very different systems of
translating votes to seats, and very different methods of voting, in any one year, then the potential result
for some is confusion. A single uniform system and method would, arguably, improve the
comprehension of the system, and increase the quality of access for the voters.
Why this variation? One reason is that the electoral system in any one political arena is selected
by the party in government, and political parties have different ideas of what constitutes a "good"
electoral system. Federalism also offers a political structure for variety to occur. A third reason flows
from the conventional wisdom that in bicameral systems the upper house should be elected by different
arithmetic.
The choice of an electoral system does have a major effect on access and on the nature of
representation. The FPP system encourages a two-party, major-party system, and offers little assistance
to minor parties and independents, unless they have a strong regional base of support. Those who
support the principle of a plurality system do so on the ground that the prime aim of an electoral system
is the formation of strong and stable majority governments. Under FPP, one major party, under normal
circumstances, can usually win an absolute majority of seats.
Opponents of a plurality system, especially those who favour a variety of proportional
representation, point to the probability that many members under an FPP system will be elected with
less than a majority of the votes, and that government will therefore be formed on the basis of a minority
of votes.
Other factors of an electoral system - apportionment, and whether votes should count
equally - will be addressed elsewhere in this report.
71
6. Voting Systems and Methods
6-2 Voting systems in South Australia
Since the elections of 1851 and 1855 for the "Hybrid Legislative Council", and since
the first election for a Parliament in 1857, there has been a variety of election systems in
force, translating votes to seats. These have encompassed first past the post (FPP),
contingency voting (CV), preferential voting (PV), and two varieties of proportional
representation (PR).
There are important implications for the focus of this report within these different
systems. Access to the electoral processes is wider than such components as the right to vote,
the right to an "equal voting power", the ease of voting, and other themes already examined.
Access also involves the means by which the votes of the citizens are translated into the election of
representatives in the Parliament. The principle of a democratic access includes a number of themes
related to this. First, a quality of access would assume that the electors understand the principles and
practices on which the "translation" occurs. The more complex the "arithmetic", the more difficult it is for
voters to understand.
Second, an important "arithmetic" issue of representation is involved. It can be argued that an
election system which allows the election of representatives on the basis of minority electoral support
contains a lower degree of representation - and hence of access - than one requiring an absolute
majority of votes for election. Similarly, a system which has a built-in potential to over-represent (and
under-represent) the proportion of support for candidates and parties in the election is also a weaker
aspect of access. Further, a system which contains any in-built mechanism which favours one candidate
or party over another is a severe erosion of equality of access.
Overall, the choice of systems of voting needs to be based on a "balance" - of simplicity, the
potential for understanding, and an "equality" of representation. The various South Australian systems,
from 1857, have "shifted the balance" back and forth.
6-2-1 First past the post (FPP)
This system applied for both Houses from 1857 to 1929. It is based on a simple majority:
the candidate who wins the largest number of votes wins the seat - regardless of whether that
number of votes was an absolute majority. In a multi-member electorate, the candidates were
elected on the basis of numbers of votes: in a three-member electorate, for example, the three
candidates who received the highest, second-highest and third-highest proportions of the
votes were elected.
In the Legislative Council election of 1857, there were 27 candidates for the 18
vacancies. Of the enrolment of 10 092, only 5 717 voted. Given the necessity to
"obliterate" nine names to cast a formal vote, it is not surprising that there was an informal
vote of 13.6 per cent. A total of 368 electors decided to plump - to vote for one candidate
only, by "obliterating" 26 names. The most successful candidate, TS O’HALLORAN,
received 3 499 votes, only 5.2 per cent of the 66 824 total votes cast. The last elected, CG
EVERARD, received 2 177 votes (3.3 per cent), and the least supported candidate, HBT
Strangways, 1 332 votes (2.0 per cent).
The following are the election results in the House of Assembly electorates of Burra
and Clare (three members) and Victoria (one member) in 1860. Elected members shown in
capitals.
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6. Voting Systems and Methods
Burra and Clare
W DALE
GW COLE
W LENNON
GS Kingston
JH Browne
L Cullen
Votes
645
641
630
312
226
157
Victoria
GC HAWKER
J Umpherston
Votes
242
124
Results card for the 1896 elections.
Sir John William Downer and James Hague won the election in the district of Barossa.
James Cock and James Morris won the election in the district of Victoria.
The system of counting was therefore a simple majority. Voters were required to vote for a
maximum of the number of candidates equivalent to the number of vacant seats. They could
vote for less candidates than the number of vacant seats. If they voted for one candidate only
in a multi-member electorate, this was known as "plumping".
This system of first past the post, used widely in many nations with a British heritage, provides the least
likelihood that the person elected will be so on the support of a majority of the electors. A two-candidate
contest will produce a "majority member". A contest involving three or more candidates rarely does so.
Despite this inherent weakness in a FFP system, it was retained in South Australian elections until 1929.
6-2-2 Contingency / Preferential
In 1929 (EA 1929 No. 1929 Ss 113, 125) contingency voting was introduced. This system
utilised preferences for the first time. In a single-member electorate, the system required the
successful candidate to win an absolute majority of the formal votes cast, thus distinguishing
this system from first past the post. The Act required that the voter number all of the
candidates with sequential numbers to cast a formal ballot.
73
6. Voting Systems and Methods
In an electorate of two or more members, voters were required to vote for "not less than
the prescribed number of candidates" by use of sequential numbers. The Act defined
"prescribed number" as "twice the number of candidates to be elected plus one, or if there
are fewer candidates than that number, the total number of candidates". In such multimember electorates, the voter could, if so desired, continue to number the candidates
sequentially after completing the "prescribed number". The Act (S 123) also allowed that
in any election "at which there are not more than two candidates the ballot-paper shall be
deemed properly marked if marked so as to indicate the voter’s first preference only".
This was the first use of preferential voting in South Australian elections; it was also the first use of
compulsory preferential voting, by adopting a limitation on the choices of the voters. A democratic
election system should contain the widest possible choice for voters. This implies voluntary voting - a
basic principle of any democracy which is discussed below (see Section 16) - which continued to apply
in the 1929 Act. The principle of breadth of choice also implies that the voters should have the right to
choose how many candidates they wish to support, as well as the order in which they wish to support
them.
The 1929 Act required voters to denote a specified number of preferences. For example, in an
electorate of two members and six candidates, the voter was required to show preferences at least from
1 to 5 to cast a formal ballot. In the case of only four candidates, the voter was required to give
preferences for all four. A more democratic system would grant the right to the voter to indicate a first
preference, and then as many further preferences as he or she wished. This would maximise the range
of choice available.
The 1929 Act did include a greater degree of choice than the modern system of full compulsory
preferences (see below). The reason for the element of compulsion in 1929 was the same as the reason
for full compulsion today - political party self interest. This will be discussed below.
The translation of votes to seats, especially in the multi-member electorates, was a complex
counting process. In the single-member seats, a candidate with an absolute majority of first
preference votes was declared elected. If no candidate had an absolute majority, the candidate
with the fewest first preference votes was excluded, and "each of his unexhausted ballotpapers" was transferred in the terms of the second preference. This process continued until
one candidate received an absolute majority, and was declared elected. In effect, this
established the modern system of preferential voting in single-member electorates. As noted
above, it also allowed (S 123) an "optional" preferential vote, a system not permitted in the
modern South Australian context.
In a two-member electorate, the count to produce the second successful candidate
involved returning to the first preference votes. The elected candidate’s votes were transferred
according to the second preferences shown. If no absolute majority emerged, then the
preference allocation again started with the exclusion of the candidate with the fewest votes,
and continued until a second absolute majority was obtained. A similar process was used, if
necessary, to produce the third and subsequent members.
Any "exhausted" ballot paper was removed from the count at the stage of "exhaustion";
any candidate excluded from the count could not amass preferences - such ballot-papers
passed on to the next "continuing" candidate.
74
6. Voting Systems and Methods
The real purpose behind the change was "party benefit". This system needs to be interpreted in the light
of the implications of a second major change in the election system. In the 1929 Act, a system of
grouping of candidates was introduced for the elections for both houses. This meant, in practice, that
candidates for political parties would appear on the ballot papers in party groups. The use of the word
"group" was deliberate, as the word "party" was not recognised in the Electoral Act until 1985.
Given the likelihood that voters would vote sequential preferences along a party group, then the
effect of contingency voting was to virtually guarantee that the contingent votes favoured the same party.
This was especially important in the two-member electorates. Any group (party) which won the first
absolute majority, and hence the first seat, was all but guaranteed to win the second seat as well. This
trend was most evident in the contests for the Legislative Council through to 1973, when the election
system was changed to PR (see below).
As such, the contingent voting system applied in two-member electorates included a powerful, inbuilt bias to the majority party. It established a system which virtually guaranteed that the party with the
highest proportion of votes, especially if an absolute majority, was all but ensured of winning both seats.
The deliberate intention of the proponents of this system was evidenced in the malapportionment in
favour of rural areas, and hence in favour of the Liberal party (see Section 13). Contingency voting was,
of course, of benefit to both major parties, but this malapportionment, combined with "compulsory
voting" after 1942 (see Section 16), was of greater benefit to the party which had a stable majority in the
majority of the electorates - the Liberal party.
The Chief Secretary (H Tassie, Liberal), in his Second Reading Speech (SAPD 1929: 186970), noted that the Act was fulfilment of an election promise: "[i]f returned to power we
will introduce ... the preferential transferable vote". He justified the change with the argument
that the existing system of voting with crosses next to candidates of choice was a "block vote
system", the effect of which
is not calculated to ensure that the representation of a constituency shall
be that of the majority of the electors in the constituency. Members can
understand that where the forces of, say, three different parties are
divided in the relative number of 34 per cent of one party and 33 per
cent of each of the two others, the 34 per cent of the electors may secure
the whole of the seats in the constituency.
In this comment is the real reason for the change proposed by the Liberal party. The essentially twoparty, Liberal v Labor competition, which had dominated the South Australian elections since 1910, had
become complicated by the emergence of the Country Party. This had resulted in three-party contests
in many extra-metropolitan electorates and, with the existing electoral system, without preferences, the
Liberal and Country candidates had divided the non-Labor vote. Labor was able to win a number of
seats. The formation of a coalition of Liberal and Country parties prior to the 1927 election was fulfilled
only after an agreement that the preferential system (contingency voting) would be introduced as a
factor to counter the Labor party. Party considerations, not the "democracy" of the election system, was
the prime factor in the change.
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6. Voting Systems and Methods
The (Liberal) Chief Secretary put it differently in his explanation of the new system, and
the reason for the change.
The method of obviating that [a block vote] and securing that the
majority in any electorate shall prevail, which is the basis of democracy,
is by the preferential vote. Under the block vote system one readily
grasps the fact that with candidates A, B, and C, an elector voting for A
whose presence he desires in the House of Parliament exhausts his vote
entirely, and while he would very much prefer to see B elected rather than
C, he is afforded no opportunity of giving effect to that desire. The
preferential system enables an elector to say, ‘I prefer A, but if my vote
with that of others who prefer A out of the three candidates standing is
not sufficient to ensure his return, I want to be sure that my preference
for B over C may be given effect to.’ That is just what happens under the
preferential system, and it ensures the result that any person who is
elected for any constituency has at least the support of the majority of
the electors in that district.
In fact, while the last point was achieved by the legislation, the effects of the contingency
form of preferential voting actually strengthened the probability that, in a two-member
electorate, one party would win both seats. It was, even more than the existing system, a
block vote.
As an example, an election result in the two-member district of Legislative Council
Midland shows the effects of the contingency system combined with "groupings" - political
parties. The results on the basis of the first preference votes were
Votes
LM Cooper (Liberal and Country League)
EH Thorp (Labor)
FJ Potter (Liberal and Country League)
R Millar
(Labor)
32 039
19 848
1 452
976
Under a system of first past the post, Cooper and Thorp would be elected.
Under the system of contingency voting, all first preference votes for Cooper were
transferred according to second preferences, with the following result:
LM Cooper (elected)
FJ Potter
1 452 + 31 334 = 32 786 (elected)
EH Thorpe
19 848 +
456 = 20 304
R Millar
976 +
249 = 1 225
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6. Voting Systems and Methods
The "party" aspect of the change to the contingency vote is clear, as is the reason for the introduction of
compulsory preferential voting. The major parties derived a powerful benefit from both; the Liberal party,
with its "assets" in the malapportioned election system, derived the most benefit, and was the most
impassioned supporter of the new system.
6-2-3 Preferential
This system of contingent voting was transformed, in practice, for the House of Assembly
in 1936, when an amendment to the Constitution (CA 1936 No. 2336) divided the State
into 39 single-member districts. The principle of the contingent vote was not deleted from
the Electoral Act, but, in practice, it became the modern system of preferential voting, with
a single transferable vote, in the single member electorates. It was, however, retained for the
multi-member electorates in the Legislative Council, and its propensity to act as a "block
vote" was demonstrated at every election until the system was changed in 1973.
One member, W Hannaford (Liberal, SAPD LC 1936: 1909) clearly favoured the
change. He had
asked how the system was operating in Queensland. He [Queensland
Minister] replied "Whatever you do, do not advocate preferential voting
for other than single electorates. It operates very satisfactorily for single
electorates, but not for multiple electorates". The Bill practically does
away with the existing multiple electorates. I have heard our present
system described as a Chinese puzzle.
The 1936 amendments reduced the number of members of the House of Assembly from 46
to 39, with one member elected from each district (CA 1936-7 No. 2336). The system of
voting was retained, but as all electorates were single-member, the system of contingency voting
in multi-member electorates was not applicable. Hence there was no change to the system,
except that the translation from votes to seats became based entirely on a single transferable vote
system, with preferences, if required, distributed from the least supported candidate.
This system remains in force in 2002.
6-2-4 Proportional representation: Legislative Council
Proportional representation was first used in Australia in the Tasmanian election of 1909. It
has since been incorporated, with variations, for the Senate (in 1949), and for Legislative
Councils in South Australia, Western Australia and New South Wales, and for the ACT
Assembly (again, all with variations).
However, it was first raised as a possibility in South Australia in 1861. During the
debate on an Electoral Act Amendment Bill (EA 1861 No. 20), Lavington Glyde proposed
"suggestions for adapting Mr Hare’s scheme of equal representation and representation of
minorities, to the electoral system of South Australia." He noted that "Mr Hare’s great
Reform Bill" was now "before the English Parliament", and "had received the approval of
Mr John Stuart Mill". Glyde read into the "Hansard" the details of the proposal, and
concluded that
[h]e believed that the scheme was well worth the attention of every
intelligent and thinking man in the community (SAPD HA 1861: 652-3).
However, it found no support in the House.
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6. Voting Systems and Methods
The Legislative Council voting system was the same as that for the House of Assembly
until 1973 - contingency voting was applied. In that year, two Acts transformed the
constitutional basis and the electoral system for the upper house. Adult franchise was
introduced by a short Act, ending the 117 years of a restricted property franchise (CA 1973
No. 51). This has been discussed previously.
The second, equally substantial and important Act, transformed the electoral system
(CA and EA 1973 No. 52). The first process was to enlarge the Council from 20 to 22
members, over a staged process, with a membership of 21 after the first election held
following the commencement of the Act, and of 22 after the succeeding election (S 5). The
Act also lowered the minimum age at which a person can become a member of the Legislative
Council from 30 to 18 years.
The electoral base of the Council was transformed from five electorates electing four
members each to a single State-wide electorate electing the full complement of 22. After the
transition stage, the general elections for the Council would elect eleven members for a period
of six years.
The means of translating votes to seats was also transformed, from
contingency/preferential voting to a List system of proportional representation. This was the
first time that a proportional representation system had been introduced for South
Australian elections, but it was based on a modified "closed-list" system, which worked
heavily against the principle of open and full access. The ballot paper contained the names
of candidates in "groups" - which, in practice, meant parties. The voters were required to
mark, not individual candidates, but the group (party), and to mark sequential numbers next
to every group (S 27). Hence the previous system was changed to full preferential voting, but
preferential according to group, not individual candidate.
The counting system was complex (S 29). The first step was to calculate a "prescribed
number" of votes. This was calculated by dividing the total formal first preference votes cast
by one more than the number of vacant seats, and then dividing the result by two. In the
more general language of proportional representation, this established half a quota. The
second stage was to exclude from the count any group whose electoral support in first
preference votes was less than the prescribed number (half a quota), and each ballot paper
for such a group was redirected to the first continuing (non-excluded) group shown on each
ballot paper. These were then "deemed to be first preference votes received by the group to
which they were attributed" (S 29a).
The next stage was the calculation of the quota for election - by dividing the total
formal votes by one more than the number of vacant seats, and "increasing the quotient so
obtained (disregarding any remainder) by one". The first preference votes for any continuing
group were then divided by the quota, and the result expressed as quota(s) and/or fractions
of a quota. Any group which received one full quota succeeded in having one member
elected; two full quotas, two members, and so on. After the count of full quotas, any
remaining vacant seats were filled, in order, by the groups which had the highest proportions
of a quota. If a group had more quotas than it had nominated candidates, then the excess
quotas - and the eligibility of seats, "shall be disregarded".
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6. Voting Systems and Methods
This was a very complex and, more important, a restrictive method of translating votes to seats: any
group (party) which did not achieve sufficient support on first preference votes, in the first count, was
excluded from "continuing". Hence there was no opportunity for these groups to have the benefit offered
to the larger groups - of winning preferences from other groups and thereby having an opportunity of
achieving a full quota and a seat. It was consequently a severe restriction on access for the supporters
of these groups in the election.
Given this, on what ground was the system introduced? The "group vote" - the denial of
the right of an elector to vote for individual candidates - was explained in the Labor
government’s second reading speech (AF Kneebone, Labor, SAPD LC 1973: 92).
Amongst the reasons for this is that, in an election that requires 11
persons to be elected, a plethora of candidates may be expected, and it
is likely that the requirement that the elector shall mark a number in the
square beside the name of each candidate, when we may expect, say, 30
such candidates, will result in an unacceptably high proportion of
informal ballot papers.
This is no justification for limiting access. It would have been better if the Parliament had decided to deal
with such an eventuality by means of information and education, rather than by such a limitation on the
right of the voter to support individual candidates. The assumption that the new system, based on
proportional representation, would "attract" a greater number of candidates and parties was a correct
one. Evidence from other polities where PR is applied supports this conclusion. The proposed "cure" for
the "problem" of proliferation meant that the voters lost their right to show support for individual
candidates, a right which is a key component of a democratic election system. It is difficult not to
interpret the stated concern about an increase in informal voting as a fear that any such increase would
disadvantage the major parties. Overall, the new system contained a very strong element of party selfinterest.
The government’s explanation for the complicated system of translating votes to seats was equally
unsatisfactory in explaining the severe limitation of access.
... although on the face of it, it appears that a system of preferential
voting is to be used, it is really a system of allocating proportions, that
is, quotas without preferences, since preference counting will be pointless. It is
not the winner-take-all system, which is what the preferential guise of
present voting for this House really is. [See above, contingent voting]
(emphasis added).
This new system of voting was a severe and partisan-based restriction on the quality of representation.
One of the fundamental components of any democratic election system can be argued to be the right to
choose an individual candidate (or the individual candidates) as representative(s). The proposed List
system denied this right. Further, it was a system deliberately designed to lessen the opportunities of the
independent candidates and those who nominated as members of a minor party. The system contained
an inbuilt benefit for the major parties.
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6. Voting Systems and Methods
After two elections under this system (1975
and 1979), it was abandoned, replaced by a
proportional representation system based on a
single transferable vote. While candidates
remained shown in groups (parties), the voter
was now required, to cast a formal ballot, to
place consecutive numbers next to the names
of individual candidates, at least to the
number of vacant seats. The voter could then
decide how many further preferences to show
(EA 1981 No. 35 S 46). The wording of the
Act was that
he shall place consecutive numbers
beginning with the number 1 in the
squares opposite the names of the
candidates for whom he votes in the
order of his preference for them
until he has indicated his vote for a Catherine Helen Spence played an important role in
expanding the franchise for women and also
number of candidates not less than
advocated
a proportional representation voting system.
the number of candidates required
to be elected for the district.
However, the original Bill proposed by the Liberal Government did not intend this change.
The original proposal was to retain the closed list system, with some slight modifications to
make it slightly less "closed", especially in terms of preferences. The Attorney-General
explained the original proposed change (JKT Griffin, Liberal, SAPD LC 1981: 2712).
... Legislative Council voting system which has contained a serious
anomaly which should never have been tolerated. At the moment, where
a group gains less than half a quota of primary votes its preferences are
distributed. That position remains. Also where a group gains more than
half a quota in no way will the preferences of any part quota of that
group be distributed. That is the serious anomaly which is corrected by
this Bill to ensure that in the counting of votes there is no distortion of
the system (as there is at present) and that all votes and preferences are
counted. At present, optional preferential voting is allowed in the
Legislative Council vote. That is not so in the House of Assembly, the
Senate or the House of Representatives. It is not an appropriate system
where all preferences are to have electoral weight.
The Labor Opposition, which had introduced the closed List system in 1973, was not in
support of the proposal. CJ Sumner made that quite clear (SAPD 1981: 3062). He began
with an issue of "principle", with which no-one would argue:
The question of how we as a community elect our Members of
Parliament is of paramount importance to the community and the
Parliamentarians.
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6. Voting Systems and Methods
He then turned to the real issue for the Labor party.
It did not take the Liberals long to try to tamper with the system that
was introduced in 1973 ... [That] reform has achieved the most
significant democratic reform to the Legislative Council voting system in
the history of this State. I would like briefly to deal with the argument
that somehow or other the list system is undemocratic. The argument
goes that, because you can only vote for a list of candidates put out by a
particular Party and cannot vote for an individual candidate within that
list, the system is somehow undemocratic. That is an argument with
which I do not agree. First, the candidate is only on the list because he
has the support of his party ... individuals can nominate and can run
quite freely in an election ... If they as individuals can obtain a certain
percentage of the vote (8.3 per cent) they can be elected ... if they do
nominate as a member of a political party ... they accept the priority as
determined by that political Party.
He also disagreed with the proposal to abolish the optional preferential voting system as "an
appalling reversion to the bad old days".
However, the resultant Act was a compromise forced by the Australian Democrats, who
held the balance of power. The Act introduced a proportional representation system based
on a single, transferable vote, with the list component abolished.
The translation of votes to seats was based on the standard use of a quota, calculated
by dividing the number of formal first preference votes by one more than the number of
vacant seats. Candidates who received equal to or greater than a quota were declared elected.
If vacant seats remain, the surplus votes of any elected candidates are distributed, in
accordance with the preferences shown. Any candidate receiving a quota from such a transfer
is declared elected. If vacant seats remain after all surplus votes are distributed, then the least
supported candidate is deleted from the count, and his relevant preferences are distributed.
This process continues until all vacant seats are filled.
This was the final stage in the three-step process to transform the electoral system for the Legislative
Council to a democratic base. The first step was the abolition of the restricted property franchise; the
second, the abolition of deliberate, partisan malapportionment with the introduction of a single Statewide electorate; the third, the final grant of full access for all voters to both the parties and the individual
candidates when the list system was abolished. By the acceptance of the demand of the Australian
Democrats, the Legislative Council became the most democratically elected chamber in Australia. In
terms of access, its electoral system could hardly be bettered.
6-3 Voting methods
6-3-1 Introduction
The ability of a citizen to participate in the electoral processes is made easier or harder
depending on the method of voting which is applied to cast a formal ballot. The more
complicated, the more that free and fair access may be limited for some voters. On the other
hand, there is a certain level of responsibility which democracy can expect from its citizens,
a responsibility to make every attempt to understand the processes of the electoral system
and to use them correctly.
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6. Voting Systems and Methods
A system of first past the post, with voting by a cross (usually any mark) within one
box is the simplest method of voting. When representation is based on any system
incorporating preferences then, especially with compulsory preferences (or partial preferences
- up to the number of vacancies), voters are required to mark with sequential numbers. This
is a more complex process.
For the majority of Australian citizens this change involved no real problem. In modern democracies
most citizens should be capable of writing sequential numbers on a ballot paper, and get them correct.
Further, if a mistake is made, the voter should be aware that a replacement paper can be obtained. There
are some groups for whom such a system may be a problem, and this may decrease their access to the
process. People from different ethnic backgrounds, some Aboriginal people, and those with literacy or
numeracy difficulties, would find the new system more challenging. Hence the necessity for the Electoral
Act to contain a range of provisions through which assistance can be provided. These have been
discussed previously.
Given this, although the preferential system is more complex than FPP, with some attention to
information publicised by the electoral agencies - even by following "how to vote" cards (see below). preferential voting constitutes only a minor limitation on access.
6-3-2 Both Houses
Prior to the 1857 election, voting was open and public. The method of voting planned for
the 1857 elections (EA 1855-6 No. 10 S 29) was that the voter, in private, was required "to
obliterate the name of the Candidate or Candidates for whom he does not intend to vote".
This "negative" form of voting was used in both single- and multi-member electorates, with
the voter required to leave unmarked (un-obliterated) the number of names of candidates
equivalent to the number of vacant seats. Any voting papers which "contain the names of
more persons than are required to be elected" were declared informal and were rejected (EA
1855-6 No. 10 S 32).
This established an unusual method of voting - deleting the names of candidates not
supported – and seems, today, to be at variance with the electoral principle of indicating
support for candidates (or parties) which are to be chosen as representatives.
For most of the eleven electorates contested in 1857, the task of deletion
("obliteration") was not difficult - requiring the "crossing-out" of only one name in Port
Adelaide; up to four names in Yatala and Adelaide. In the eight electorates where information
can be obtained, the informal level ranged from 1.5% in Noarlunga (a three-person contest;
"obliterate" one) to 5.1% in Adelaide. In the Legislative Council election, with 27
candidates for the 18 seats, and hence nine names to be "obliterated", the informal count
was 13.6%.
This "negative" voting method was quickly replaced (EA 1857-8 No. 12 S 31). The
new instructions to voters were to "indicate the name of the candidate for whom he intends
to vote, by making a cross within the square opposite the name of such candidate". The Act
(S 35) also required the Returning Officer to "reject all voting papers which shall contain
the names of more persons than are required to be elected at any such election, or shall
contain any matter or thing other than such names." This change did little to lessen the level
of informal voting. In fact, it got worse: from 17.8% in Yatala (four candidates) to 3% in
Encounter Bay (three candidates).
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6. Voting Systems and Methods
For the 1857 election, and in the 1857-8 Act (S 31) the order of the names of
candidates on the ballot paper was in the order of nomination. In 1861 (EA 1861 No. 20
S 49), the ballot paper order of candidates was changed to alphabetical order of surnames.
The 1896 Act "to amend and codify the Electoral Laws" (EA 1896 No. 667 S 126)
confirmed the necessity for "a cross having its centre within the square opposite the name of
the candidate", while an Act with a similar purpose of codification in 1908 (EA 1908 No.
971 S 143) required "a cross having its point of intersection within the square opposite the
name of the candidate". No comment was made in either House concerning this change, but
we can assume that it was to deal with the necessity for clear interpretation.
In 1929, as noted above, the voting system was changed to contingent voting, and the
instructions to voters were modified accordingly. The use of crosses and first past the post
was changed to sequential numbers to accommodate preferential/contingent voting. The Act
(EA 1929 No. 1929 Ss 113, 123) specified the new requirements of voters. In the case of
a single member electorate, the voter was required to
place the number 1 in the square opposite the name of the candidate for
whom he votes as his first preference; and must give contingent votes for
all of the remaining candidates by placing the numbers 2, 3, 4 (and so
on, as the case requires), in the squares opposite their names, so as to
indicate the order of his preference for them.
In a case of the election of two or more members, to cast a formal ballot paper, the voter
was required to show sequential preferences up to "twice the number of candidates to be elected plus one ", and
could then give any further preferences he wished (emphasis added) (The Fourth Schedule).
Section 123 of the Act did allow as formal any ballot paper in a single-member contest
between two candidates which showed only a first preference. (From the 1938 election, this
"allowance" was available to all voters in the House of Assembly elections, as all electorates
were single-member.)
The Chief Secretary (H Tassie, Liberal) explained that the change was
not only a matter of Government policy, but it is also a matter of
bringing about uniformity in the method of election between the States
of the Commonwealth and the Commonwealth itself. At a conference of
Premiers in May last a resolution was carried in favour of adoption of
uniformity as far as possible in all elections throughout Australia.
Adoption of the preferential system and of voting by numerals was a
result of a unanimous vote at the state Premiers’ Conference (SAPD LC
1929: 1870).
The Premier and Treasurer, RL Butler (Liberal), stated that the philosophy of the Bill
reflected his promises at the election.
The system of voting should not be determined by the interests of any
political party, but be such as to afford the widest choice to the majority
of electors to secure the best possible representation in Parliament
(SAPD LC 1929: 1039).
This was a very worthwhile philosophy, but it was not always followed. The process of the development
of the election systems of South Australia is littered with changes and policies which are clearly not in
accord with such a view. For example, see the discussion of electoral geography later in this report
(Sections 12, 13).
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6. Voting Systems and Methods
In 1955, the Electoral Act was amended (EA 1955 No. 52 S 10) to provide that where
the voter
has indicated his preference for all the candidates except one, and the
square opposite the name of that one candidate has been left blank, it
shall be deemed that the voter’s preference for that candidate is his last
and that accordingly he has indicated his preferences
for all candidates as required.
The Attorney-General, CD Rowe (Liberal, SAPD LC 1955: 1705) explained that the
existing Act allowed that a ballot paper for a single-member election with two candidates,
only one square marked would be counted as a formal vote. But if
there are more than two candidates and the elector does not indicate his
preference for the full number of candidates for whom he is required to
vote, the ballot paper is informal.
The amendment would therefore "reduce the number of informal votes", and hence
provide a sensible and logical means to ensure that as many votes as possible were admitted
to the count.
By 1955, in practice, the South Australian electoral system incorporated compulsory preferences. This
principle remains in the Act, and has the support of all political parties in the Parliament and, as far as
can be established, of the other parties which have contested recent elections.
The compulsion is a limitation on the freedom of choice of the voter. Claims are made that
compulsory preferences provide that every elected member will have the support of a majority of the
formal votes cast, and that compulsory preferences do give the voters the chance to have a second (and,
if necessary, subsequent) choice if their candidate of first preference is eliminated. The compulsion
contains a more important negative element, a more important limitation of choice: the voter is forced
to allocate preferences, even to parties and candidates which he or she strongly opposes.
As such, compulsory preferential voting is a restriction on the quality of participation available to
the voters. It is enforced for the benefit of the political parties (and independents) rather than for the
benefit of the citizens. The voters should have the right to decide not only which candidates should
receive which preference, but also which candidate(s) should not receive any preference. That is, the
system of optional preferential voting, which is currently a right available to voters in New South Wales
and Queensland, should be a right available to voters in South Australia.
There is, however, an alternative assessment, supported by the implications of optional
preferences in Queensland. Labor Premier Beattie, at the 2001 Queensland election, advised voters to
"just vote Labor 1". That is, to register a first preference vote only. This option was followed by a
substantial proportion of the voters. As such, if other parties also decide to give similar advice, then an
optional preferential system could become, in effect, a first past the post system, with all of the problems
of representation by minorities – in the electorates and in the parliaments – which are associated with
that system.
However, what flows from any system of compulsory preferential voting has nothing to do with the
quality of representation. What it rests on is a different "principle": that of party self-interest, which may
force voters to give support to candidates to which they may be implacably opposed. That is hardly a
democratic election system in action.
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6. Voting Systems and Methods
6-3-3 Legislative Council
In 1973, when the closed list system was introduced for the Legislative Council (see above),
the contingent / preferential individual voting method was replaced by preferential voting for
groups (EA 1973 No. 52). Voters no longer had the right to vote for individual candidates,
but had to indicate preferences only for the groups, the individuals in which were elected in
the order shown on the ballot paper (S 27).
This was a restriction on the democratic rights and choices of the electors. It denied
one basic premise of a democratic election system by removing the right of the voters to
select which candidates they wished to represent them in the Parliament. In fact, if a voter
attempted to vote for an individual candidate within a group, then the vote would be
informal. As the government’s second reading speech indicated (SAPD HA 1973: 92), "a
Legislative Council ballot paper will be informal ... if it does not indicate a voter’s first
preference for one group".
In 1981 (EA 1981 No. 35 Ss 46, 61), when the List system was abolished, voters
regained the right to vote for individual candidates, and hence to participate more fully in
the electoral process. The ballot paper now showed candidates in groups (parties), but with
a box by every name, and voters were required, to submit a formal vote, to vote by sequential
numbers, "for a number of candidates not less than the number of candidates required to be
elected for the district".
In 1985, the current method of voting was introduced (EA 1985 No. 77 S 76). The
new voting method, commonly called the "above/below the line" method, offered a choice
to the voter. The ballot paper was in two parts, separated by a solid horizontal line. The voter
could choose to vote below the line by placing sequential numbers for every candidate, thus
indicating preferences. He could choose to vote above the line by placing the number 1 in a
"voting ticket square". A tick or cross in one square above the line was "deemed equivalent
to the number 1". In the latter case, preferences, if required, were allocated in terms set out
in the ticket registered with the Electoral Commissioner.
The change was justified by the Labor government (GJ Crafter SAPD HA 1985: 4253)
on the grounds of dealing with voter confusion and the consequent level of informal ballots.
At the November 1982 election over 10 per cent of voters in the
Legislative Council election voted informally because of confusion with
the ballot paper and the requirements of the voting method. Some voters
had voted with crosses and ticks, some had not filled in the required
number of spaces, but the largest number of informal votes were as a
result of electors putting more than one figure one (1) on the ballot
paper.
The voter confusion sent the informal vote in the Legislative Council
from 4.4 per cent in 1979 to 10.1 per cent in the 1982 election. This
level of effective disenfranchisement is not acceptable.
If the elector chooses to vote for a party or group ... has lodged a
registered voting ticket ... the vote will be distributed in accordance with
that ticket. If, however, the voter wishes to use his own discretion and
vote for candidates he must vote for all candidates.
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6. Voting Systems and Methods
The Liberal Opposition disagreed strongly with the proposed change (SAPD HA 1985:
4345).
We believe that the present system of voting ... is fair. It operated very
effectively in the 1982 election and we are reasonably convinced that in
many instances the present Government has sought in the present Bill to
manipulate the Act for what would be blatant political gain.
It used the Report of the Electoral Commissioner on the 1982 election to support the
criticism
[t]o reduce the informal rate will be an enormous task ... I recommend ...
Developing educational literature and short courses covering not only
the mechanics of voting but the purpose. Advertising is not sufficient.
This comment was correct, and it addressed a major component of the electoral processes which should
seriously be considered by Parliament as a key component in the quality of access. This issue of political
and electoral education is addressed later in the report.
Overall, this "choice" of voting methods could be interpreted as increasing the range of choice
offered to the voter, and increasing the level of access to the process. In fact, the trend from the
beginning was that the overwhelming majority of voters opted for the above-the-line ticket. This is
understandable, partly as the "vote" thus became very simple, and partly as the publicity by the political
parties stresses the above the line, and made little mention of the more complex below the line method.
The parties therefore substantially achieved their aim - that they, not the individual voters, would control
the direction of preferences.
The change was introduced, in fact, for two purposes. The first, and the justification used by the
parties in the Parliament to support the measure, was to decrease the level of informal voting. It
succeeded in this. The second, unstated reason, was for the advantage of parties, not voters. Assuming
that the majority of voters record their votes above the line, then, for the majority of its support, any
party can control the direction of preferences, and hence can "do deals" with other parties on this
assumption.
This change, then, was not concerned with broadening access, but controlling it. The "sop" to the
voters was the display of large posters in polling places and, since 2002, on the internet, which indicated
the registered preference distributions. But few voters would take the trouble to read and consider these
before casting a vote. The change was actually contrived to restrict access.
6-3-4 House of Assembly
In 1976, the Electoral Act was amended in a way which required all election contests for the
House of Assembly to be "counted out" to a "two-party" contest. Prior to this, the
distribution of preferences in any count ceased when one candidate reached the required
absolute majority, and was elected. This was a problem for political parties and psephologists,
who had to estimate the "final two-candidate vote". The amendment (EA 1976 No. 32 S 2)
established that all contests would involve continuing preference distributions until "there are
only two unexcluded candidates".
This change was partly the result of a growing discussion of alleged "unfair" election
results, and of the elections of majority governments on the basis of a minority of the voters.
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6. Voting Systems and Methods
The data needed for such discussions were not complete under the existing system, under
which counting ceased when an absolute majority was obtained. The discussions were forced
to be based on "estimated" two-party (two-candidate) preferred statistics. The change
produced full and accurate data.
The amendment had no effect on the quality of representation, nor on the fairness of the electoral
processes. Its "benefits" were limited to political parties, which thereby had a clearer picture of the "flows"
of preferences, and to electoral analysts, who now had an actual two-candidate preferred vote.
In 1985, the Act was amended to incorporate the only case of "ticket voting" for a lower
house in Australia (EA 1985 No. 77). The section (S 93) applied "only in relation to a
House of Assembly election": where
(a) a voter marks a ballot paper by placing the number 1 in the square
opposite the name of a particular candidate and indicates no further
preference; and
(b) there is 1 voting ticket registered for the purposes of the election in
relation to that candidate, the ballot paper shall be deemed to have
been marked in accordance with the voting ticket.
In the case of the registration of two voting tickets, then of any votes so cast, "half of
them shall be deemed to be marked in accordance with one ticket and half in accordance
with the other".
In one sense it can be argued that this unique aspect does have a positive input into a democratic
election process. Where a voter has become confused, for example, if a newly-arrived citizen from a
first-past-the-post environment, or has simply translated the above-the-line option from the Legislative
Council vote to the Assembly, then the ticket vote does ensure that such mistaken interpretations do not
result in an informal ballot paper.
There is little doubt that the change was almost solely for the benefit of the parties, rather than an
attempt to broaden access for the voters. It was based on an assumption that a vote for a single
candidate was a vote for that candidate’s registered preference distribution. There is no basis for this
assumption. The reason for any voter recording a specific vote cannot be assumed. Hence, the only
interpretation possible for this change is that it was designed (1) to decrease informals, which would
(2) increase the potential vote for the registered parties, and potentially (3) increase the benefit from
preferences. This is not a matter of better representation for the voters, but of increased advantages for
the political parties.
The Act also allowed (S 76) that a tick or a cross on a ballot paper "shall be deemed
equivalent to the number 1". This provision deeply offended one member (S Baker, Liberal,
SAPD HA 1985: 4346).
... [I]t is ludicrous in this day and age that we should be allowing people
to put a tick, a cross or a No. 1. I believe that if an elector is entitled to
vote the person should be able to vote according to the tried and true
method that has operated in Australia since the first election was ever
held. If not, it makes a farce of so-called increases in knowledge and
understanding ... We are reverting to a situation where a person who
could not sign a document could put a cross on it and someone had to
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6. Voting Systems and Methods
witness that it was their cross ... the cross ... is often used as a means of
saying ‘I do not really want to have anything to do with that candidate
or party’. It is not necessarily an affirmation of support for that Party ...
If a person cannot put a number 1 in a box, they should not be allowed
to vote.
In one respect, this amendment was relevant to the issues of participation, involvement and access.
Section 76 provided a logical means of interpreting the intention of a voter who used a cross or tick
instead of the number 1. The other amendments were of no relevance to access. The use of a ticket vote
was essentially to increase the potential vote of parties where the voter had, in fact, cast an informal
ballot. The fact that such an incorrect vote was, under the amendment, "deemed" to be a formal one, was
a matter of party advantage. As noted above, the right of an optional preference vote would be a stronger
addition to the quality of representation.
88
7 Candidates and Members
7-1 Introduction
The Constitution Act of 1855-56, with the Electoral Act 1855-56, established the basic
structures and processes for candidates for the first election for a full parliament in 1857.
There are formal rules in the Electoral Act establishing who can be a candidate, and the
means of the formal nomination. The "extra-statute" components of the pre-election
processes, dominated by political parties, have become an intervening structure and process
between the aspiring candidate and the electors. Few (although there is currently an
increasing number) candidates nominate without being pre-selected, endorsed and
nominated by political parties. Although this trend had its genesis in 1890, and by 1910 it
was an increasingly important factor, the role of political parties was not recognised in the
Electoral Act until 1985.
From the first election in 1857, to the election of 1890, this party component was
entirely absent: there were simply no political parties. From 1890 until Registration of
political parties was incorporated into the Act (see below), the activities of the parties were
almost completely extra-legal in the sense that the Constitution and Electoral Acts did not
mention them.
The term "group" was used, a euphemism which seemed to have no real purpose, except, perhaps, to
mask the fact that parties were increasingly dominant in actually making the electoral laws.
The term is still applied in the context of Legislative Council elections, to denote the "collectives"
of candidates who do not wish to be a formal party, or who have failed to achieve registration as such
(see below).
Candidates are "self-chosen", and receive support from various private groups and, after 1910,
were increasingly nominated and endorsed by political parties. What implications are there for access?
The answer is that the candidates and, when they are elected, the members of Parliament, are the
essential linkages between the citizens and their representative institutions. The laws regarding
candidates therefore establish an important linking factor in elector access to the electoral processes.
There need to be, in legislation, some clear rules about who can stand, and under what
circumstances. There need to be clear rules about the eligibility of, and nomination process for,
candidates for public office. There needs to be consideration of what charges that "democracy" will make
for the right to nominate, as a high cost would deter many people, thus limiting access. As such, there
are a number of issues to consider.
7-2 Nomination process
7-2-1 Eligibility
Legislative Council
The eligibility of candidates for the 18-member Legislative Council for the 1857 election
was set by the 1855-56 Constitution Act (CA 1855-6 No. 2 S 5):
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7. Candidates and Members
... legally qualified to vote [for the Legislative Council], and no person
shall be capable of being elected a Member, who shall not be of the full
age of thirty years and a natural-born or naturalised subject of Her
Majesty, or legally made a denizen of the said Province, and who shall
not have resided within the said Province for the full period of three
years.
This eligibility applied until 1973, when the minimum age for candidates was amended to
"of the age at which he is entitled to vote at an election for a Member ... of the House of
Assembly" - 18 years of age (CA/EA 1973 No. 52 S 6), and all property qualifications were
removed. In 1982, the Act was further amended by the simple qualification for candidates:
" he is entitled to vote at an election for the Legislative Council" (CA 1982 No. 77 S 4). In
1985 and 1988, any reference to qualifications for candidates were incorporated into the
Electoral Act and deleted from the Constitution Act (EA 1985 No. 77 Ss 51 - 53; CA
1988 No. 1 S 3). The disqualifications in regard to elected members remained in the
Constitution Act.
House of Assembly
The issue of eligibility to nominate as a candidate for the 1857 election for the Assembly
was set out in the Constitution Act (CA 1855-6 No. 2 Ss 14, 15). The Assembly was
declared to be of 36 members, and
any person who shall be qualified and entitled to be registered as a voter
in and for any electoral district within the said province, shall be
qualified and entitled to be elected as a Member of the House of
Assembly.
That is, the same as the qualification of a voter for the Assembly.
Every man of the age of twenty-one years, being a natural-born or
naturalised subject of Her Majesty, and having been registered upon the
Electoral Roll of any District for the period of six calendar months prior
to any election.
The qualifications, and the exclusions, were therefore the same for both voter and candidate
for the House of Assembly - with one specific difference. The Act (S 15) specifically set a
"qualifying" period for non-British immigrants.
No person, not being a natural-born subject of Her Majesty, shall be
qualified and entitled to be elected a member of the said Parliament
unless he shall have resided in the said Province for the full period of five
years.
The eligibility to be a candidate for the Assembly was therefore tied to the qualifications for
being a voter for the Assembly. As the franchise changed, so did the qualifications of a
candidate.
The Act also specified that (CA 1855-6 No. 2 S 36): "No Judge of any Court of the
said Province, nor any clergyman or Officiating Minister shall be capable of being elected a
Member".
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7. Candidates and Members
Following Federation, the electoral laws regarding candidates were amended (EA 1908
No. 971 S 102) to state that no member of either House of the Commonwealth Parliament
could be a member of either House of the South Australian parliament. In 1921, a "safety
factor" was (temporarily) included in the electoral code (EA 1921 No. 1499 S 3). If any
sitting member of either the Assembly or the Council resigned his seat to stand as a
candidate for the Commonwealth Parliament, and if that member
notifies in writing to the President or Speaker of House affected ... his
intention, in the event of his failing to secure such election, to again
become a candidate for the vacancy caused by his resignation
then the issue of the writ for the election to fill the vacancy "shall be delayed" until the
declaration of the result of the Commonwealth election. Further, the member was
guaranteed his State seat back! If the person concerned nominated as a candidate for the
vacancy he left in the State parliament,
the Returning Officer to whom the writ is directed shall forthwith,
without holding a poll, publicly declare him to be duly elected.
The government’s second reading speech outlined the reasons for the amendment.
The present disability imposed on members is brought about by section
70 of the Commonwealth Electoral Act, 1918-19, which provides that
no person who was at any time within 14 days prior to the date of
nomination a member of the Parliament of a State shall be capable of
being nominated as a Senator or as a member of the House of
Representatives. At the Premiers’ Conference held in 1920 a resolution
was carried that the Commonwealth Government be asked to amend
their Act so as to permit State members whilst remaining such members
to become candidates for the Federal Parliament ... they proposed to take
no action on the matter. ... [therefore] the States, themselves, can by an
alternative course, overcome the disabilities imposed by the
Commonwealth ... It is an exceedingly effective method of dealing with
a body who arrogate to themselves, not only the power to control their
own operations, but the operations of the States in a most undesirable
way ... this Bill is really a masterpiece (JG Bice, Liberal, SAPD 1921:
571-2).
The "masterpiece" was shortlived. The Act was repealed in 1922 (EA 1922 No. 1549).
This was forced on South Australia, and on the other States, by the passage through the
Commonwealth Parliament of an amendment
so as to render any person incapable of being nominated as a Senator or
a Member of The House of Representatives if that person had resigned
from the Parliament of a State and had the right under the law of the
State if not elected to the Parliament of the Commonwealth to be reelected to the Parliament of the State without the holding of a poll. ...
nullify the privilege ... we must repeal our legislation (JG Bice SAPD
1922: 877).
The 1934 Constitution Act (CA 1934 No. 2151 S 47) included the "mutual exclusion"
that a Member of the Federal parliament could not be a Member of the State parliament,
and vice versa.
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7. Candidates and Members
7-2-2 Nominations
The candidate nomination process for
the 1857 election was included in the
original 1855-56 Electoral Act (EA
1855-6 No. 10 S 28).
It shall be lawful for any two
electors of any Electoral
District, before or at the
time fixed for nomination,
to address or forward or
deliver to the Returning
Officer of such District, a
letter, signed by such two
electors as proposer and
seconder of a person to be
therein named as a candidate
to represent the District, the
person also proposed as a
candidate, signifying his
assent, in writing, to act if
elected.
The requirement to have at least two
electors as "proposer and seconder" was
never explained in the debates. It can be
assumed that, as such formal process is
widely applied in most organisations,
political and private, it is merely a tradition
which has been maintained. The term can
be traced back to Latin and Middle English
usage, so it has a long tradition - if no real
justification.
In the early years candidate nominations were effected by
letter; application forms were a later development.
In 1879 (EA 1879 No. 141 S 48), the requirement was broadened to read "nominated by
not less than two persons entitled to vote in such election", thus effectively removing the
requirement that the nominators had to be enrolled in the same district as the candidate. In
1985 (EA 1985 No. 77 S 53), the narrower requirement was re-instated: "must be signed
by 2 electors enrolled for the relevant district".
The Act specified the "qualifications" required: must be an elector of the Council or
the Assembly; must not nominate for more than one election; must be nominated by "2
electors enrolled for the relevant district"; must give consent in writing for the nomination;
and must declare in writing that he is qualified (EA 1985 No. 77 S 53).
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7. Candidates and Members
In 1997, the dominance of political parties in the election process in general and the
nomination process in particular, was finally recognised in the Electoral Act (EA 1997 No. 22
S 10).
The registered officer of a registered political party may ... nominate on
the same nomination paper candidates endorsed by the party for election
as members of the House of Assembly or the Legislative Council.
The nomination of a single candidate was amended to be made by "a person", but still to
be "signed by two electors enrolled for the relevant district".
The Attorney General, KT Griffin (Liberal), in his Second Reading speech, provided
the justification for the change to multiple nominations by political parties.
... several advantages. Candidates can delegate authority to registered
officers to apply for the print of party names on ballot papers and to
lodge voting tickets on their behalf ... candidates can be listed on the
nomination form in the order the Party wishes their names to appear on
ballot-papers ... registered officers would have considerably more control
over the nominations of their endorsed candidates and the possibility of
a Party endorsed candidate lodging an incomplete nomination would be
removed (SAPD 1996: 401).
Such a measure had little impact on the quantity or quality of access. Rather, it increased the
effectiveness of party "control" of the election process.
7-2-3 Limits on activities
The original (EA 1855-6 No. 10 S 52) Electoral Act included a constraint on candidates
which, in the modern context, would be unthinkable. The clause merits full quotation.
It shall not be lawful for any candidate for election as a Member of the
said Legislative Council or House of Assembly, to solicit personally the
vote of any elector, or to attend any meeting of electors, convened or
held for the purposes of election, after the issue of a writ for the election
of a Member for any electoral District, and before the return of any such
writ; and the attendance of any candidate at any such meeting, or his
personal solicitation of the vote of any elector, shall have the same effect
as the acts of bribery and corruption ...
This restriction on candidates was also a severe restriction on the access of the voters, on the right of
an elector to attempt to establish the personality, attributes, and policies of any candidate during the
election campaign, and on their access to the persons seeking to be their representatives. It was
effectively a barrier within the process of representation, and hence a weakening of democracy.
In 1858 (EA 1857-8 No. 12 S 29), a more sensible modification limited the "ban" to
"within three days" of the nomination day until "after the poll is taken". In 1861 (EA 1861
No. 20 S 47), a further amendment set the opening time of the "ban" at "within 12 hours
from the time appointed for the nomination of candidates”. In 1893, the Act was further
amended (EA 1893 No. 583 S 25):
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7. Candidates and Members
It shall be lawful for any candidate to attend any meeting of electors
held for electoral purposes not later than 48 hours before the opening
of the poll.
In 1908 (EA 1908 No. 971 S 186), the "ban" was again modified:
(a) Any personal solicitation by a candidate of the vote of any elector
within eight hours before the opening of the poll on polling day, or
at any time during polling day before the close of polling:
(b) Any attendance by a candidate at any meeting of electors held for
electoral purposes within forty-eight hours before noon on polling
day, or at any time during polling day before the close of polling.
By 1925 (EA 1925 No. 1691 S 4), the limit was shortened to "at any time on polling day
before the close of the polling". In 1929 (EA 1929 No. 1929 S 154) the Act specified the
"ban" to be "within 50 yards" of the polling place, and expanded on the details:
(a) soliciting the vote of any elector; or
(b) in any way interfering with any elector with the intention of
influencing him or advising him as to his vote; or
(c) inducing any elector not to vote for any particular candidate; or
(d) inducing any elector not to vote at the election.
The current Act (EA 1985 No. 77 S 125) contains a further two extensions to the banned
activities:
When a polling booth is open for polling, a person shall not (a) canvass for votes;
(b) solicit the vote of any elector;
(c) induce an elector not to vote for a particular candidate;
(d) induce an elector not to vote at the election; or
(e) exhibit a notice or sign (other than an official notice) relating to the
election, at the entrance of, or within, the polling booth, or in any
public or private place within 6 metres of an entrance to the booth.
Further (EA 1985 No. 77 S 117(2)), "A candidate shall not personally solicit the vote of
any elector on polling day".
Over time, then, the restrictions on the access of candidates to the voters, and of the
voters to the candidates, were modified from the total "ban" on candidate activity anywhere
in the Colony, for the whole of the period of the election, to the limitations above. As such,
the amendments to the Electoral Act moved in the direction of more access.
The current restrictions are logical, and do not impose any significant limitation on access. It is
reasonable to assume that the canvassing activities of candidates and parties would have been
completed by polling day, and it is reasonable to grant the voters "freedom" from such activities on the
day, and in the close vicinity of the polling booth.
The "six metres" provides a small "corridor of peace" between the polling place and the activities of
the candidates and parties, especially the "how-to-vote" card gauntlet which traditionally faces the voters
at polling booths. This practice has become an important component for parties, candidates and voters.
For the first two participants, it is an attempt to convince the voters to follow a specific "how-to-vote"
card, and hence allocate preferences in the manner proposed by the party or candidate. As preferences
and preference distributions have become more important, as more candidates and parties contest
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7. Candidates and Members
elections, and as, increasingly, preference deals have become an integral component of pre-poll activity
by the political parties, there is considerable benefit to the party if the majority of voters do follow the
"instructions".
The blanket coverage of polling places by the parties with their "how to vote cards" also affects the
voters. There is anecdotal evidence that a significant proportion of the electors rely on the "cards" to
decide how to allocate their preferences. Hence there is little incentive for these voters to give
consideration to party policies, to an assessment of the qualities individual candidates, and to the
question of allocating their own preferences.
This emphasis by the parties, and the apparent dependence on the "how-to-vote" cards by the
voters, mitigates against an informed and electorally educated electorate. If legislators are concerned
about the political education aspect of elections, then they should seriously consider the application of
the "Robson rotation" system as applied in Tasmanian elections. The name of the candidates are
displayed in random order on the ballot papers, differing between the papers. This means that "how to
vote cards" cannot be prepared, and that the voters need to give a broader and deeper consideration to
their preferencing decisions. This "Robson rotation" should be incorporated for South Australian
elections.
7-3 Costs of participation
7-3-1 Costs of elections
The costs of the first election for the South Australian Parliament in 1857 were the
responsibility of the public purse. In the elections for the "Hybrid Legislative Council" in
1851 and 1855, some of the costs of the polling places and allied matters were met by the
candidates, but the first Electoral Act (EA 1855-6 No. 10 Ss 55, 56, 63) established that
for the remuneration of the Returning Officers ... payments shall be
made by the Colonial Treasurer ...
All necessary and reasonable expenses which shall be incurred by any
Returning Officer or any other person appointed under and by virtue of
this Act ... be paid and discharged out of the General Public Revenues ...
Further (S 53),
No action, suit, or other proceeding shall be maintainable in any Court
of the said Province against any persons who may have been a candidate
at any election for or in respect of any costs or expenses whatsoever in
or about or relating to such election.
This process has been maintained to the present day.
In the light of the principle that elections in a democracy should be free, the South
Australian laws concerning election structures and processes levied no specific charge on
electors - with one, brief exception. The 1859 Electoral Act (EA 1859 No. 22 S 11) applied
a fee of two shillings to any elector who applied to transfer from one electoral roll to another.
This was repealed in the Act of 1869-70 (EA 1869-70 No. 18).
There has been a suggestion that any member who vacates his or her seat in the parliament without a
very sound reason, especially in the House of Assembly where a by-election would be required, should
be responsible for the costs of the process of replacement.
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7. Candidates and Members
7-3-2 Candidates’ costs
Until 1929, there was no nomination fee applied to candidates. It is interesting to note a
debate in 1879 which raised the issue. HE Bright, during the debate on a consolidated
Electoral Bill, (SAPD HA 1879: 208) made a suggestion.
There had formerly been some discussion in relation to candidates
depositing a certain amount of money, and if they did not poll a certain
number of votes the money was to go towards the expenses of the
election. If such a clause could not be included in the Bill he hoped the
Attorney General would state in his reply that it was the intention of the
government to introduce a Bill of that character ... In Victoria each
candidate had to deposit 50 pounds, and from what had been witnessed
from this colony of dummy candidates he thought each person offering
himself for election should certainly be in a position to deposit 50
pounds towards defraying the expenses of his election. If the candidate
polled a sufficient number of votes the money would be returned to him.
His colleagues agreed that the Bill under discussion, "one to consolidate the laws relating to
elections", was a proper time for such a measure. The proposal failed to win support in the
House.
The principle of a nomination fee, as a deposit, was incorporated in the 1929 Act (EA
1929 No. 1929 S 61).
No nomination shall be valid unless - ...
at the time of the delivery of the nomination paper the person
nominated or someone on his behalf deposits with the returning officer
the sum of Twenty-five Pounds in money or in Australian notes or in a
banker’s cheque
This fee was a deposit (S 71) which
after the election shall be returned to the candidate if he is elected or
obtains more than the prescribed number of votes ...
(a) where he is a candidate for a district for which two or more
members are required to be elected and the names of the
candidates are not included in a group ... if the total number of
votes polled in his favour as first preferences is more than onetenth of the average number of first preference votes polled by the
successful candidates in the election:
(b) where he is a candidate for a district for which two or more
members are required to be elected and his name is included in a
group ... if the average number of votes polled in favour of the
candidates included in the group as first preferences is more than
one-tenth of the average number of first preference votes polled by
the successful candidates in the election:
(c) where he is a candidate for a district for which only one member is
required to be elected, if the total number of votes polled in his
favour as first preferences is more than one-fifth of the total
number of first preferences polled by the successful candidate in
the election.
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7. Candidates and Members
The Liberal Government explained the reason (SAPD HA 1929: 1047).
That provision is copied practically direct from the Senate system. If we
are to have a system of preferential voting it will give an opportunity to
the person known as the frivolous candidate to make things unduly
complicated.
The prime reason for the deposit, then, was to discourage "frivolous" candidates. Two criticisms need to
be made. In the first place, who decides what is "frivolous"? Why is there a need to declare that
candidates and parties other than the "mainstream" do not have an equal right to be involved in the
election process? A case can be made that the real intention of the deposit could be interpreted as an
attempt to "keep out" all but the entrenched and mainstream candidates and parties. As such, it can be
interpreted as an attempt to restrict access.
Second, the amount of the deposit and the proportion of votes necessary to have the deposit
returned needs to be large enough to discourage the "frivolous" (if that is necessary), but small enough
so as not to erect a barrier for minor and new parties to have the opportunity to "test the electoral
waters".
In 1929, the barriers were set very high indeed. In a two-member seat, an independent
candidate needed to achieve 10% at least of the average votes of the winning candidates. In
the case of a member of a party, the requirement was that the average votes for the party had
to be greater that 10% of the average votes of the successful candidates. For a candidate in
a single member electorate, the requirement was at least 20% of the support of the successful
candidate. For the two major parties, this was a relatively easy task. For minor parties and
independent candidates, it was a very high threshold.
In 1969, the nomination fee was increased to "one hundred dollars in cash or a banker’s
cheque to that amount" (EA 1969 No. 50 S 13). The government explained that this was
"a decimal currency amendment" (SAPD LC 1969: 807).
In 1985 (EA 1985 No. 77 Ss 53, 57), the terms of the deposit were: "A nomination
may be made ... together with a deposit of the prescribed amount in cash or a banker’s
cheque" (S 53).
The deposit made by or on behalf of the candidate shall be retained
pending the election, and after the election shall be returned to the
candidate ... if (a) the candidate is elected;
(b) the total number of votes polled in the candidate’s favour as first
preference votes exceeds 4 per cent of the total number of formal
votes cast in the election; or
(c) where the candidate is a member of a group, the total number of
votes polled in favour of the group as first preference votes exceeds
4 per cent of the total number of formal votes cast in the election
[or a candidate within the group is elected] (S 57).
The government stated (SAPD LC 1985: 4253) that the new procedure was "similar to the
provision now contained in the Commonwealth Electoral Act". There was no debate in the
Parliament about the change.
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7. Candidates and Members
The concept of a deposit is a restriction on the right of access of all candidates to the election process.
It also favours those candidates who nominated as a member of a party group: the 4 per cent was easier
for the total members of that group to attain than for a single candidate. The deposit was set at $200
from 1985 to 1997 (EA 1997 No. 22 S 10), and then increased to $450.
In summary, both the minimum of votes required, and the amount of the deposit, establish a
powerful restriction on the rights of potential candidates to have access to the election. In so doing, the
legislation sets up a real restriction of the access of the voters to alternative choices in any election.
While "frivolous" candidates and parties and groups may be a nuisance to the major parties, and to the
mechanics of an election, there is no real justification for the barriers which the deposit establishes.
In fact, the very concept of a "frivolous candidate" is a value judgement, made by the entrenched
political parties, with the purpose of attempting to maintain their domination of the electoral processes.
To the parties which have representation in the parliament, any intervention in elections by other parties
and candidates is seen as a threat to their existing hegemony. The term "frivolous" is therefore a tactic
in the party competition.
There is no democratic justification for a deposit. Elections should include the free right for any
person or party to nominate candidates, and to seek electoral support, without the necessity to pay for
the right to do so. The issue of what is "frivolous" should be a matter for the voters to decide.
7-3-3 Expenditure limits
Prior to 1893, there appears to have been no legislation concerning candidate expenditure,
especially in relation to any limitation on the amount.
The 1893 Electoral Act (EA 1893 No. 583) was devoted in large part to establishing
a legislative framework for such issues. The Act defined "electoral expenses" to
mean and include all payments, including any pecuniary or other reward
(other than the personal expenses of a candidate in travelling and
attending electoral meetings) made by a candidate, or on his behalf or
with his knowledge and any money, security, or equivalent of money
received by a candidate six months before, during, or six months after an
election for, on account of, or in respect of the conduct or management
of the election (S 1).
The Act (S 2) established that "no electoral expense shall be incurred by or on behalf of a
candidate except in respect of":
1. The expenses of printing, advertising, publishing, issuing and
distributing addresses and notices.
2. The expenses of stationery, messages, postage and telegrams.
3. The expenses of holding public meetings, and hiring halls for that
purpose.
4. The expenses of committee-rooms.
5. One scrutineer for each voting-place and no more.
6. One agent for any electoral district (The First Schedule).
It also specified that
[a]ll money provided by any person other than a candidate for any
electoral expense, whether as a gift, loan, advance, or deposit, shall be
paid to the candidate, and not otherwise (S 4)
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7. Candidates and Members
Record-keeping was made compulsory.
Every payment made by any candidate, or on his behalf, in respect of any
electoral expense shall, except where less than Forty Shillings, be vouched
for by a bill stating the particulars and by a receipt (S 5).
The Act set "prescribed limits" - a "maximum scale" of expenditure.
For elections to the House of Assembly, except in the Northern
Territory [where the maximum amount was set at double], the electoral
expenses (other than personal expenses) shall not ... exceed in the whole
... :If the number of electors ... does not exceed 2,000 the maximum
amount will be 100 pounds, and if the number of electors exceed 2,000,
an additional 10 pounds for every 200 electors above 2,000.
For elections for the Legislative Council ... If the number of electors ...
does not exceed 2,000, the maximum amount shall be 100 pounds. If
such number exceeds 2,000, 10 pounds in addition for every complete
200 above 2,000 (The First Schedule).
It is interesting to apply these limits to the 1893 election. First, the new limits favoured the
candidates in the electorates in the urban areas, and especially in Adelaide. Unlike the
constant focus of debates about electoral redistributions, which emphasised the need for
smaller electorates in the rural areas, and the consequent alleged "fairer representation", the
expenditure limits gave more to the urban areas.
In the two largest city electorates, Port Adelaide and Sturt, the new limits provided a
maximum of 230 pounds for each candidate, while in the smallest electorates of Noarlunga
and Encounter bay, the candidates could spend only 100 pounds. In the Legislative Council,
in the electorates of Central (Adelaide) and Southern, the maximum expenditure was 400
pounds.
All candidates were required under the Act (S 6) to submit a report on expenditure,
within 21 days after the declaration of the poll a statement which included:
(a) A statement of all electoral expenses, together with all bills and
receipts respecting the same:
(b) A statement of all disputed and unpaid claims of which the
candidate is aware;
(c) A statement of all money, securities, and equivalents of money
received by the candidate for the purpose of electoral expenses,
with a statement of the name of every person from whom the
same may have been received.
[such statement to] be accompanied by a declaration made by the
candidate before a Justice of the Peace.
The government outlined the main purposes of the Bill (SAPD HA 1893: 2756-7).
In the first place, the intention was to limit the expenses that persons
might incur in elections. The Government considered that if payment of
members was a good thing so as to bring the representation of all classes
within the ability of persons representing those classes, then some people
should not be permitted to spend an undue amount of money on their
election. That principle had been enforced in England with good effect,
and was in operation in other parts of the world, and the Government
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7. Candidates and Members
thought that they would have to decrease the cost of elections here... the
cost of elections should be cut down to a mere trifle, only sufficient to
pay for the candidate’s expenses in the district and for the publication of
his opinions on the political questions of the day.
In his second reading speech, the Chief Secretary noted (SAPD LC 1893: 3299) that "[t]he
Bill had been before the Council on two previous occasions, and it was drafted on the basis
of a report of a select committee". In regard to the maximum amounts specified in the Bill:
"[t]hat was a fair allowance for electoral expenses".
A number of Members, in both Houses, raised issues concerning the proposal. VL
Solomon (SAPD HA 1893: 2758) pointed out
that although 100 pounds might be ample allowance for a district such
as East or West Adelaide, where only three or four meetings had to be
held within an easy distance, and only three or four scrutineers and one
agent were required, it was grossly unfair in such districts as Newcastle,
Flinders, or the Northern Territory where the candidates might have to
hire rooms at 20 or 30 places to address electors, and where the cost of
posters, postages, telegrams etc, would be twenty times as much as was
required for smaller constituencies.
RC Baker (SAPD LC 1893: 3303) made a strong point.
It was impossible to prevent money being spent by friends of the
candidates in such a way that no action could be taken against them.
Indeed, he saw no reason why people feeling strongly should not do their
utmost for those whose election they favoured.
JV O’Loghlin (Labor) supported the principle.
No undue advantage should be allowed to the man of means for
influencing the electors, for amounts equal to 2000 and 3000 pounds
had been expended in returning gentlemen to parliament in the past.
That was an election for what was in the purse and not what was
contained in the head (SAPD LC 1893: 3305).
E Ward, however, took a different view:
the purpose of the clause was to prevent a rich man spending his money
if he pleased. This was not in the interests of the unemployed, who had
their harvest time when rich men were seeking election. Why should they
be deprived of that harvest time?
He also noted that "any amount of money could be spent in travelling and personal
expenses" and moved, unsuccessfully, to delete that provision (SAPD LC 1983: 3306).
In 1896, an amendment (EA 1896 No. 667 S 145) allowed that the purchase of copies
of electoral rolls was an acceptable expense. The Act also set new and simplified limits for
maximum expenditure (S 146).
No electoral expense shall be allowed in respect of any candidature in
excess of the following rates:1. For each candidate Fifty Pounds, and Five Pounds additional for
every two hundred electors on the roll above two thousand:
2. Twice the above rates for any Northern Territory election.
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7. Candidates and Members
In the Assembly, the Attorney-General emphasised that
[a] considerable reduction had been made in the amount of expenses a
candidate could incur, and he hoped it would be even further decreased
... a man should not be returned to the legislature because of the amount
of money he was prepared to spend, but on his merits.
A new provision was inserted (S 151), providing for a disclosure requirement:
that the Returning Officer for the Province should, as regards all returns
and vouchers pursuant to this chapter1. Forthwith publish in the Gazette particulars of the total amount of
the electoral expenses of the candidate...
2. Keep the returns and vouchers for public inspection, without fee, at
reasonable hours for three months after filing:
3. During the same period supply copies of or extracts from the return
and vouchers at Six Pence per folio of seventy-two words.
The Chief Secretary (JH Gordon), in the Second Reading of the Bill, noted that such
publication "was a matter that had been debated that session, and the desire was generally
expressed that some steps should be taken in reference to the publication of expenses."
(SAPD LC 1896: 241).
The reference to the necessity for public disclosure of electoral expenditure was a positive factor in
regard to access. The voters were, for the first time, provided with material on which they could make a
decision without any suggestion of undue influence on candidates and parties.
It is interesting to note that this Bill included, for the first time, a definition of a candidate.
The government led by CC Kingston established a candidate as
any person who within three months before the day of the election
directly or indirectly offers himself for election by any constituency, or
who directly or indirectly within such time seeks to influence any
constituency or electors with a view to so offering himself.
However, the Legislative Council had a different view, as Kingston explained to the Assembly.
The Bill provided:- " ‘ Candidate’ means any person who, after the day
of issuing the writ for any election shall have publicly declared his
intention of becoming a candidate at such election, or his consent to do
so, or after the dissolution or vacancy in consequences of which such
writ has been issued". That provision had been inserted by the
Legislative Council, and with every desire to meet the wishes of that
branch of the legislature he thought the clause was a mistake. If they
were going to limit the definition so that a man could do just as he liked
up till the time the writ issued he would have an opportunity and license
for the expenditure of money which he thought should be denied him
(SAPD HA 1896: 953).
The Government and the Assembly prevailed over the Council, and the expenditure
restrictions were applied to the three months prior to polling day.
In 1908 (EA 1908 No. 971 S 173) the requirements were eased, but only slightly, with
the amendment that "[e]very electoral expense, except where less than Two Pounds, shall be
vouched for by a bill of particulars and by a receipt".
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7. Candidates and Members
These requirements concerning limitations on electoral expenditure, justification of expenditure, and
public disclosure were important aspects of access. An equality of access involves not only the equality
of the voters. Citizens have the right to expect that none of the candidates or parties seeking their votes
has an unfair or improper advantage over the others. The issue of "improper" can be dealt with in
legislation, such as that already discussed, fairly easily.
What constitutes an "unfair" advantage? Obviously, dealing with an inequality of advantage through
the expenditure of money, as in the 1893 Act, is one method, and the establishment of a parallel
disclosure component in the Act satisfied a second method of protection. If the voters can establish from
the public record who spent what amount, then they have better grounds on which to judge any potential
"unfair advantage".
Either a limit on expenditure, or public disclosure or, for the greatest impact, both components,
can be a positive component for access. In the period 1893 to 1968, both factors were in force in the
Electoral Act.
In 1969, all of these valuable components were deleted from the Electoral Act. The 1929
Act (EA 1929 No. 1929 Part 14 "Electoral Expenditure") which had introduced the
concept of limitations to expenses, and the subsequent amendments, were removed from the
Act (EA 1969 No. 50 S 35) by the brief statement: "Part XIV of the principal Act being
sections 135 to 143 inclusive together with the heading thereto is repealed".
From the passage of the 1969 Electoral Act (EA 1969 No. 50) to the present day,
there has been no restriction on campaign expenditure, nor any requirement to declare any
gifts or loans, nor any public disclosure, and there was no longer any requirement to submit
any report to the Returning Officer, for publication in the Gazette.
The Second Reading speech by the Minister, C M Hill (Liberal), was cryptic in its
explanation. The relevant clause
repeals entirely ... limitations on electoral expenditure. It is thought that
this Part of the Act is inappropriate where today much expenditure is
actually related to the return of candidates of a political Party rather
than particular candidates" (SAPD LC 1969: 807).
The Opposition made no mention of the issue.
The deletion of expenditure limits and disclosure from the Act, and the cryptic explanation, can be
explained simply. In the modern context of campaigning, especially with electronic mass media, the
costs are very high. Setting any reasonable expenditure limits would be very difficult, if possible at all.
Further, the deletion from the Act of expenditure limits provided a real political benefit for the two
major parties. It was of no real disadvantage for micro- and minor-parties and independents, as these,
and their candidates, rarely, if ever, manage to have sufficient funds to reach any limit that would be set.
The deletion decision had a negative impact on the quality of information about the electoral processes.
It provided a benefit to the major political parties, their "interests", and their part in the electoral
processes.
The South Australian Parliament should revisit this issue. If there is justification for the
Commonwealth Act to contain strong and detailed disclosure provisions, then there is an equally strong
case for similar legislation in the State. These provisions were placed into the Commonwealth Act as the
"other side" of public funding. They would be equally justifiable without it.
There is a strong "freedom of information" component in regard to the public disclosure of election
spending and money-raising. The voters have a right to know.
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7. Candidates and Members
7-4 Disqualification of member
The concept of a representative democracy includes a convention that the member elected
to represent the people in his or her electorate will diligently carry out that task. This is only
a convention, or expectation, as it would be difficult, indeed, to establish a statutory
description of the "duties" of a member of parliament. At various times, the South
Australian legislature did turn its mind to what would constitute grounds for the
disqualification of a member. These were generally non-controversial.
This principle of "diligently carry out" the task of representation has a formal and an
informal link to access. The informal link is not, nor could it be, incorporated in legislation.
The judgement of whether any elected member is "diligent" is in the mind of each individual
voter. Any subsequent action on the basis of such judgement, carried out through the ballot
box, is solely a matter for the voter.
The formal link is important for democratic representation in a legislative sense.
Citizens should be able to expect that the Members of Parliament whom they elect, and
through whom they have access to the whole range of representative and responsible
government, will be "fit" representatives, and will carry out their formal representation
requirements properly. The range of such formal requirements in the legislation is limited to
two factors: attendance and "allegiance".
The inaugural Constitution Act of 1855-56 (CA 1855-6 No. 2) included a section
which established the ground on which a member’s seat could be declared vacant.
If any Legislative Councillor shall, for two consecutive months of any
session of the Legislative Council, fail to give his attendance therein,
without the permission of the said Council, or shall take any oath or
make any declaration or act of acknowledgment of allegiance or
adherence to any Foreign Prince or Power, or shall do, concur in, or
adopt any act whereby he may become a subject or citizen of any Foreign
State or Power, or shall become bankrupt, or shall take the benefit of any
law relating to insolvent debtors, or become a public defaulter, or be
attained of treason, or be convicted of felony or any infamous crime, or
shall become of unsound mind, his seat in such Council shall thereby
become vacant (S 12).
The equivalent clause for members of the House of Assembly varied in significant ways
(shown below in italics).
If any Member of the House of Assembly shall, for two consecutive
months of any session of the Legislature, without the permission of
such House of Assembly entered upon its journals, fail to give his attendance
in the said House, or shall take any oath, or make any declaration or
acknowledgment of allegiance, obedience or adherence to any Foreign
Prince or Power, or do, or concur in, or adopt any act whereby he may
become a subject or citizen of any Foreign State or Power, or become entitled
to the rights , privileges or immunities of a subject or citizen of any Foreign State or
Power, or shall become bankrupt or an insolvent debtor within the
meaning of the laws in force within the said Province relating to
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7. Candidates and Members
bankrupts or insolvent debtors, or shall become a public defaulter, or be
attainted of treason, or be convicted of a felony, or any infamous crime,
or shall become of unsound mind, his seat in such House of Assembly
shall thereby become vacant (S 25).
An amendment in 1908 (CA 1908 No. 959 S 19) decreased the "absence" for both Houses
to one month. In 1947 (CA 1947 No. 19 S 4) a non-attendance period of twelve
consecutive sitting days was set.
In 1994, the Constitution Act was amended to include the necessity for Australian
citizenship for members (CA 1994 No. 40 Ss 4, 5). The situation for both Houses became
that a member would vacate his seat if he "is not or ceases to be an Australian citizen". At
the same time, the amendment stated that, for both houses, the "seat is not vacated because
the member acquires or uses a foreign passport or travel document".
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8 Electoral Courts
8-1 Introduction
The existence of an independent judiciary is a key component of a democracy. The judiciary
is the sector of government which has the responsibility of interpreting, and of making
authoritative judgements about, the laws passed by the legislature, and about the execution
of such laws by the government and its institutions. These judgements are called for when
there is any allegation of a breach of such laws and applications.
The judiciary has an important role in terms of the electoral structures and processes.
It is the legal guardian of the rights of the participants in the process, and the authority
which decides on issues of redress when a case justifying it is proven. The Electoral Act, like
any other Act of Parliament, establishes the framework for the judiciary in the electoral
processes. The task of the Courts is to decide on cases brought before them, in terms of the
wording of the Act.
There is a need to distinguish the legal role and authority of the Courts from the political implications of
much of the content of the Electoral Act, and especially from the party political recognition in the more
recent Act. The judiciary has the authority to interpret and judge on the basis of the Act; it has no
authority to comment on, or to modify any component of an Act which is clearly "undemocratic" in its
political application.
The concern of the judiciary is whether the practice of "equality of access" accords with the Act. If
the Act includes an "inequality of access", the authority of the Court is limited to a judgement about
whether that "inequality" in practice reflects the intentions of the Act.
But the electoral component of the functions of the judiciary do provide a means of access for
redress to any person or group which claims that it has been treated in some manner outside the terms
of the Act. The Court, then, is the "legal guardian" for the participants in the electoral process.
In recent years, there has been a new tendency - a new role for the judiciary in terms of the internal
political structures and processes of political parties. This is an important component of the "fairness"
of the electoral processes, and hence the quality of access for the voters. Parties are key components of
modern elections, and their internal and external practices should accord with the principles established,
not only in the Electoral Act, but in terms of their own constitutions and rules. This extension of the
Courts into what were considered, for a century, to be "private party matters", has become an
increasingly important component of the election system.
8-2 Courts of revision
As stated above (Section 2-3), the first Electoral Act included a provision for the
establishment of Courts for Revision of electoral lists (EA 1855-6 No. 10 S 9). These
Courts, established in each electoral district, were charged to "hold an open Court" for such
revision. At their meetings, claimants and objectors put their cases in regards to the rolls, and
amendments were made. The substance of the Act focussed attention on the property
qualifications for voters for the Legislative Council, and the Act (S 14) provided the Courts
with the authority to "require any person having the custody of any book containing any rate
made ... during that or the preceding year, to produce the said book and allow the same to
be inspected". The Act (S 13) also made provision for Quarterly Courts of Revision, thus
maintaining an up to date Roll.
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8. Electoral Courts
The Court of Revision for the district of Yatala was held at this Salisbury hotel on 23 August 1856.
Magistrate P Butler presided. Polling booths then and now could not be set up in public premises
where alcohol was consumed.
These Courts were taken very seriously, both in the law, and by the people responsible.
The accuracy of the roll, then as now, was clearly a major aim - especially the accuracy of the
Legislative Council roll. The wording of the 1869-70 Act (EA 1869-70 No. 18 S 36) shows
the serious approach.
Courts of Revision shall have the authority to hear, receive, and examine
evidence, and by summons, under the hand of the revising officer, to
require all such persons as such officer shall see fit to appear personally
before such a Court at a time and place so to be named in the summons,
and to produce to the Court all such books and papers in their
possession or under their control as may appear necessary for the
purpose of their examination.
Severe penalties were applied, for example: "made or attempted to sustain any frivolous and
vexatious claim or objection ... Ten Pounds"
Attorney-General HBT Strangways emphasised one of the important intentions of the
measure:
greater facilities were to be given for transfers, care being taken not to
allow electors to transfer from one district to another in order to vote at
an election for which a writ had been issued (SAPD HA 1869: 53).
In 1879 (EA 1879 No. 141 S 31 - 35), the emphasis was changed to give the responsibility
for revision of rolls, and objections, to the Returning Officer. Appeals against any addition
or removal from the rolls were now heard, in the first instance, by the Returning Officer. In
the case of a further objection, such appeals were heard by "the nearest Local Court of Full
Jurisdiction". Special Courts of Appeal were no longer convened as a matter of course in the
revision process. The Chief Secretary explained.
His own opinion always had been that if we were to have universal
suffrage we should induce every person to vote ... It would be necessary
for the Returning Officer to make books which would be sufficient for
five years. Courts of Revision would be abolished, as they only sat once
a year, and had proved a perfect farce (SAPD 1879: 433).
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8. Electoral Courts
An Electoral Act in 1896 (EA 1896 No. 667) amended this structure. The Act established
that Postmasters would be appointed as Electoral Registrars "to keep the rolls at specified
polling-places, and shall be directly responsible to the District Returning Officers for the due
discharge of their duties." The Postmasters would forward at the end of each quarter "lists
of all claims received and registrations and alterations affected by them" to the Returning
Officers (Ss 25, 27, 28). The Act specified that "[t]here shall be separate rolls for each
Council Division, and for each Assembly District, and each roll shall be divided according to
polling-places" (S 35).
To attempt to maintain accurate rolls:
The Registrar-General of Births, Deaths and Marriages shall, quarterly,
forward a list to each Returning Officer of the names, addresses, and
occupations of all persons of the age of twenty-one years or upwards
whose deaths have been registered in the district.
The Chief Secretary (JV O’Loghlin, Labor) justified the new process.
[G]reater facilities for registration and revision; also greater powers to
Returning Officers and Registrars to keep the rolls correct, and the
electoral machinery should work much more efficiently than under the
old system.
At present the Returning Officer held the Court of Revision, and it was
an anomaly that he should adjudicate upon certain matters when he
might be responsible for the mistakes. Therefore it was provided that the
Local Court of full jurisdiction would deal with all revision in the future
... When the Courts of Revision were held the Registrars would conduct
the cases, and the Local Court would adjudicate.
Revision Courts were to be held annually, and "shall ... finally revise the rolls, by hearing and
determining all objections" (S 72). This Act established "ninety-three places ... where [such]
facilities were granted which were at present only given at twenty seven places" (SAPD LC
1896: 240-1).
Overall responsibility for the rolls and their accuracy was transferred to the office of the
Electoral Registrar of the State in 1929 (EA 1929 No. 1929 Part VI).
8-3 Courts of Disputed Returns
The initial Electoral Act (EA 1855-6 No. 10) established "a Court for the trial of any
complaints which may be made against the validity of any returns made by the Returning
Officers of the several electoral districts". The Court was established with a membership of
four members from each of the Assembly and the Council, with the President a Judge of the
Supreme Court. The Courts were given wide and considerable powers
to inquire into all cases ... respecting disputed returns of Members ...
whether such disputes arise out of an alleged error in the return of the
Returning Officer, or out of the allegation of bribery or corruption
against any person concerned in any election, or out of any other
allegation calculated to affect the validity of the return (S 39).
The Courts shall be guided by the real justice and the good conscience
of the case, without regard to legal forms and solemnities, and shall
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8. Electoral Courts
direct themselves by the best evidence that they can procure, or that is
laid before them, whether the same be such evidence as the law would
require in other cases or not (S 40).
The said Courts shall not have the power to inquire into the correctness
of any electoral roll, or into the qualifications of persons whose votes
may on the day of the election have been either admitted or rejected, but
simply into the identity of the persons, and whether their votes were
improperly admitted or rejected, assuming the roll to be correct (S 42).
The Act (S 43) included provision for costs to be awarded to the petitioner, or to the
plaintiff, "such reasonable costs and expenses as such Court may deem fit".
These provisions remained generally in force - in the consolidated Acts of 1861 (EA
1861 No. 20), 1869-70 (EA 1869-70 No. 18), (in which Act the term "Disputed
Returns" was granted its own Part in the Act), and 1879 (EA 1879 No. 141) - until a major
revision of the Electoral Code in 1896 (EA 1896 No. 667 Chapter VII).
This Act established a formal structure of "Court of Disputed Returns" (S 171), with
the same membership as in 1855-6, but the members from the Parliament were limited to
the power to adjudicate only in matters concerning their own House (S 180). The Court
was granted "jurisdiction to hear and determine all question of disputed returns referred to
it by either House" (S 180), and it had extensive powers, including:
(ii) To compel the attendance of witnesses and the production of
documents;
(iii) To examine witnesses upon oath or affirmation;
(v) To declare that any person who was returned as elected was not duly
elected;
(vi) To declare any person duly elected who was not returned as elected;
(vii) To direct any new election;
(ix) To award any costs (S 181)
The Court heard any matter by petition from "a candidate at the election in dispute or by a
person who was qualified to vote thereat" (S 182), and any petition had to be "accompanied
by a certificate of the clerk that Fifty Pounds has been lodged with him as security for costs"
(S 182).
The principles guiding the Court remained as set out in the 1855-6 Act, but with the
addition of the words " substantial merits" of each case. Cases had to be heard within 10
days of the first sitting of the Parliament after presentation of the petition, or within 10 days
of the presentation of the petition if the Parliament was already in session (S 183). The
decisions of the Court were "final and conclusive without appeal, and shall not be
questioned in any way" (S 188).
Until 1969, the issue of disputed returns was essentially a matter of members of the
Parliament judging whether one of their own colleagues had been validly elected. This
anomaly was rectified after a very close and strongly contested election for the seat based on
Millicent in 1968, especially over the matter of the validity of certain postal votes. In 1969,
the court was restructured, to be "constituted by a single Judge of the Supreme Court " and
the Court was to "have the same powers, jurisdiction and authority as a Judge of the Supreme
Court presiding at the trial of a civil cause" (EA 1969 No. 50 S 43).
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8. Electoral Courts
The Liberal government explained the reasons for the change (SAPD LC 1969: 805).
... regard was paid to the suitability of the Court of Disputed Returns,
constituted as it was, to undertake the task imposed on it. The particular
composition of the Court reflects its unique position as an organ of the
Legislature: it is, in effect, Parliament sitting in its judicial capacity. ...
The matters before it ... are essentially matters of law, and matters which
are more and more reflected in the system of case law that is being built
up, and such matters desirably should be dealt with by a judge ... What’s
the good of having the politicians on it?
The new Court was given a wide brief: "The validity of any election or return may be
disputed by petition addressed to the Court" (S 44). At the same time, the deposit "against
costs" was adjusted to $100 (S45), increased in 1985 to $200 (EA 1985 No. 77 S 104).
The time limit for the submission of petitions was set at a maximum of 28 days from the
return of the writ (S 45).
The main changes to the structures and processes of the Court were summarised
(SAPD LC 1969: 807):
(a) The Court will be constituted by a single judge of the Supreme
Court ...;
(b) the Court will be serviced by the facilities already available to service
the Supreme Court;
(c) the procedure to be followed by parties before the Court has been
set out a little more clearly as have the powers of the Court;
(d) the Court can, in appropriate circumstance, order that all or part of
the costs of the petitioner be paid by the Crown (SAPD LC 1969:
807).
The Labor Opposition, through AJ Shard (SAPD HA 1969: 880), supported the changes.
After listening to the proceedings of the last sitting of the Court of
Disputed Returns, I came to the conclusion that the four members
assisting the judge were wasting their time; they were unnecessary. So this
clause is desirable. From my point of view and that of the general public,
we shall get the same results from the one person sitting as we have got
from the five people sitting. It will save time and money; I give it my
blessing.
In 1981 (EA 1981 No. 35 S 56), the process of the Court was adjusted so that
an onus shall, in every case, lie upon the petitioner to satisfy the Court on the balance of
probabilities that proper grounds exist for granting the relief sought by the petitioner, and
that the Supreme Court could extend the maximum time for presenting a petition to prevent
undue hardship to the petitioner (S 54).
In 1985 (EA 1985 No. 77), the Act was amended in minor ways to bring it to the form
which applies today. The Court was constituted by a single judge, but the requirement for a
specific rank was deleted (S 103). The time for lodgement of petitions was set at 40 days
following the return of the writ (S 104). Finally, Section 107 read:
(1) the Court shall be guided by good conscience and the substantial
merits of each case without regard to legal forms or technicalities.
(2) The Court is not bound by the rules of evidence.
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8. Electoral Courts
As far as possible, the Court has been designed so as to allow the access of the people involved to be
as simple and as easy as possible. The comments in the Act which establish a Court with a different and
less formal process; the authority of the Court to waive costs at its discretion; and the authority of the
Court to provide forebearance to a petitioner who is representing him or herself, are all components
which remove, or at least lower, the traditional thresholds of the judicial processes and thus increase the
level and the quality of access for the electoral participants.
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9 Electoral Offences
9-1 Introduction
Citizens in a democracy should be able to assume that their access to the electoral processes
will be to, and through, electoral structures, procedures and processes which are fair and just.
They should be able to assume: that they have an equal right to vote, and that their vote will
count equally with every other vote; that the election systems will be free and fair; that they
will be protected from actions which limit their democratic rights; and that the systems and
processes are free from corruption and unfair practices.
Manipulation of democratic election processes can occur at two levels. The broad level is when
governments and parliaments and political parties manipulate the electoral system, or some component
of it, to the advantage of a person, group or party. Examples of this abound. The property franchise for
the Legislative Council was originally designed to benefit a particular group through over- (even
exclusive) representation in the Council, and, after 1910, to benefit a particular political party. The means
applied by various groups and parties in government to translate votes to seats all contain an element
of "self-interest". The determination to retain "compulsory voting" by the Labor and Australian Democrat
parties, and the use of the electoral roll for partisan purposes, are further examples.
This section of the report is concerned with a different level of "manipulation". It includes
reports on the multitude of laws which attempted to deal with a plethora of potential (and
actual) electoral offences - whether by an individual or group or party - which would, in some
way, attack the principles of a free, fair and just electoral process.
Many of the Electoral Acts made some mention of electoral offences and consequent
penalties. The consolidated Acts usually devoted a considerable section to them. The
following Table of Electoral Offences and Punishments was included in the 1896 Act (EA
1896 No. 667 S 163). The punishments are shown in brackets.
Falsely personating any person to secure a voting-paper to which the
personator is not entitled, or personating any other person for the
purpose of voting (Imprisonment not exceeding two years).
Fraudulently destroying or defacing any nomination or voting paper
(Imprisonment not exceeding two years).
Fraudulently putting any voting or other paper into the ballot box
(Imprisonment not exceeding six months).
Fraudulently taking any voting-paper out of any polling-booth
(Imprisonment not exceeding six months).
Forging or uttering, knowing the same to be forged, any nomination or
voting paper (Imprisonment not exceeding two years).
In any polling-booth on polling-day misconducting himself, or failing to
obey the lawful directions of the presiding officer (Fine of not exceeding
Five Pounds, or imprisonment not exceeding one month).
Supplying voting papers without authority (Imprisonment not exceeding
six months).
Unlawfully destroying, taking, opening, or otherwise interfering with
ballot boxes or voting-paper (Imprisonment not exceeding six months).
Voting more than once at the same election (Fine of not exceeding Fifty
Pounds, or imprisonment not exceeding three months).
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9. Electoral Offences
Voting in any district or division other than the one in which he resides
(Fine of not exceeding Twenty Pounds or imprisonment not exceeding
one month).
Wilfully defacing, mutilating, destroying, or removing, any notice, list, or
other document affixed by any Returning Officer or by his authority
(Fine of not exceeding Two Pounds).
Wilfully making any false statement in claim, application, return, or
declaration, or in answer to a question under this Act (Imprisonment not
exceeding two years).
The following section reports on such "offences and punishments", from the inauguration
of representative and responsible government in 1857. Some introductory comments are
necessary. This is not a detailed account of every mention of every offence in the whole corpus
of the electoral legislation. In many cases, following the initial declaration of an offence, and
the setting of a penalty, the subsequent references were either unchanged, or incorporated
into a new Schedule, or related to increases due to the 1966 decimalisation of the currency.
In the main, only substantive changes, and new offences and penalties, have been reported.
9-2 Bribery and "undue influence"
The inaugural Electoral Act (EA 1855-6 No. 10) set out the range of "acts ... deemed and
taken to be acts of bribery and corruption on the part of any candidate or by any agent
authorised to act for him, whether committed by such candidate or by any agent authorised
to act for him" (S 47).
[T]he giving of money or any other article whatsoever, cockades
included, to any elector with a view to influence his vote, or the holding
out to him any promise or expectation of profit, advancement, or
enrichment in any shape, in order to influence his vote;
the treating of any elector, or the supplying him with meat, drink,
lodging, or horse and carriage hire, or conveyance by steam or otherwise,
whilst at such election, or whilst engaged in coming to or going from
such election;
the payment to any elector of any sum of money for acting or joining in
any procession during such election, or before or after the same;
the keeping open, or allowing to be kept open, any public-house, shop,
booth or tent, or place of entertainment, whether liquor or refreshment
of any kind be distributed at such place of entertainment or not;
the giving of any dinner, supper, breakfast, or other entertainment, at any
place whatsoever, by a candidate to any number of electors, with a view
of influencing their votes.
Any of these actions, if proved, would "be held to render void the election of the person
committing such an act, and to disqualify him from sitting and voting in the said Parliament"
throughout the whole period of the Parliament (S 48). The Act also held that any such acts
committed by "authorised agents" would be held to be acts of their principal if it was proved
that the acts were committed " with his knowledge or consent" (S 49). The penalty was to
"render void the election of any person committing such an act" (S 48). The penalty for
non-candidates was a fine of maximum 200 pounds or imprisonment not exceeding six
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9. Electoral Offences
months. The penalty for any voter receiving or offering a reward for voting or withholding a
vote was fifty pounds (S 51).
However, if any such acts were committed by a person who was not an "authorised
agent", then the person would be indicted "as for a misdemeanour in the Supreme Court
and be subject to a penalty of a fine not exceeding Two Hundred Pounds, or imprisonment
not exceeding six calendar months" (S 50). The penalty for candidates or agents was minimal
compared to that applied to other people.
Electors were also covered by these sections of the Act (S 51). Any elector who
shall, directly or indirectly, ask or receive, or take any money or other
reward by way of gift, employment, or any other reward whatsoever, for
himself or for any of his family or kindred, to give his vote or to abstain
from giving his vote in any such election; or if a person, by himself, his
friends, or by any person employed by him, shall, by any gift or reward,
procure any person to give his vote at any such election, or to abstain
from giving the same, such offender shall, for such offence, forfeit the
sum of Fifty Pounds sterling to the person who shall first sue for the
same, to be recovered, with full costs, by action of debt, bill, plaint, or
information, in the Supreme Court.
In 1879, a consolidated Electoral Act (EA 1879 No. 141 S 74) set out the offences
concerning bribery in more detail.
Every person who 1. Directly, or indirectly, by himself, or by any other person on his behalf,
lends, or agrees to give or lend, or offers, promises or promises to
procure, or to endeavour to procure, any money or valuable
consideration, to or for any voter, or to or for any person on behalf of
any voter, or to or for any other person on behalf of any voter, or to or
for any other person in order to induce any voter to vote, or refrain from
voting, or corruptly does any such act as aforesaid, on account of such
voter having voted, or refrained from voting, at any election; or
2. Directly or indirectly, by himself, or by any other person on his behalf,
gives or procures or agrees to give or procure, or offers, promises or
promises to procure, any office, place or employment, to or for any voter,
or to or for any person on behalf of any voter, or to or for any other
person, in order to induce such voter to vote, to refrain from voting, or
corruptly does any such act as aforesaid on account of any voter having
voted, or refrained from voting, at any election; or
3. Directly or indirectly, by himself, or by any other person on his behalf,
makes any such gift, loan, offer, promise, procurement, or agreement as
aforesaid, to or for any person, in order to induce such person to procure,
or endeavour to procure, the return of any person to serve in Parliament,
or the vote of any voter at an election; or
4. Upon, or in consequence of, any such gift, loan, offer, promise,
procurement, or agreement, procures or engages, promises or endeavours
to procure, the return of any person to serve in the Parliament, or the
vote of any voter at any election; or
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9. Electoral Offences
5. Advances or pays, or causes to be advanced or paid, any money to, or
for the use of, any other person with the intent that such money, or any
part thereof, shall be expended in bribery at any election, or shall
knowingly pay, or cause to be paid, any money to any person in discharge,
or repayment of any money wholly or in part expended in bribery at any
election:
Shall be guilty of bribery.
The following section focussed on the receiver of any such inducements, and set, as penalty,
"[s]hall be liable to forfeit the sum of Ten Pounds to any person who shall sue for the same,
together with full costs of suit" (S 75). The Act also repeated the offences in relation to
"treating, or payment of expenses of voters" (S 76).
The Act separated the offences of bribery and "interference with the exercise of voting"
(S 77). This clause included "any force, violence, or restraint ... injury, damage, harm or loss
... intimidation ... abduction, duress, or any fraudulent device or contrivance ... [which could]
impede, prevent, or otherwise interfere with the free exercise of the franchise of any voter".
The penalty was set at "forfeit the sum of One Hundred Pounds to any person who shall
sue for the same, together with the full costs of suit".
In the case of any candidate found guilty of any of these offences, he was disqualified
from sitting in the Parliament before the next election (S 80).
Subsequent legislation built on these clauses, and most modifications after 1879 were
to update the material, or allow for new electoral developments.
In 1896, the offences of bribery and undue influence were again linked, and the penalty
increased to 200 pounds or up to one year in prison (EA 1896 No. 67 S 163). The offence
of influencing an elector’s vote on election day at or within fifty yards of a polling booth
carried a penalty of 50 pounds or up to three years in prison (EA 1908 No. 971 S 189). In
1969, the penalties were adjusted for decimal currency to $800 for bribery and undue
influence (EA 1969 No. 50 S 3), and for influence of an elector on voting day to $200 (S 38).
An example of a sign reminding electors of campaigning restrictions ca. 1960.
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9. Electoral Offences
In 1976 (EA 1976 No. 114 S 23), these offences were included to apply to the new
process of electoral visitors.
A person shall not hinder or obstruct an electoral visitor in the exercise
of his powers.
A person required by an electoral visitor to furnish information ... shall
not refuse or fail to furnish that information or furnish information that
is, to his knowledge, false or misleading in a material particular.
In 1981 (EA 1981 No. 35 S 60), the penalties were increased to 2 000 dollars or three
months in prison. In 1985 (EA 1985 No. 77 Ss 109, 110, 111) the wording of the Act
concerning such offences was simplified.
(S 109) (1) A person who offers or solicits an electoral bribe shall be
guilty of an indictable offence . Penalty: Imprisonment for 2 years
(2) In this section "bribe" does not include a declaration of public policy or a promise of
public action: "electoral bribe" means a bribe for the purpose of(a) influencing the vote of any elector;
(b) influencing the candidature of any person in an election; or
(c) otherwise influencing the course or result of an election.
(S 110) A person who, by violence or intimidation, influences or
attempts to influence(a) the vote of an elector;
(b) the candidature of any person in an election; or
(c) the course or result of an election,
shall be guilty of an indictable offence. Penalty: Imprisonment for two
years.
(S 111) A person shall not hinder or interfere with the free exercise or
performance, by any other person, of a right or duty under this Act.
Penalty: Imprisonment for six months.
This Act also introduced an offence of "counsel or procure two or more inmates of a
declared institution to make applications by post for the issue of declaration voting papers.
Penalty: $500" (S 83). An amending Act in 1997 increased the penalties for bribery and
undue influence to up to 7 years in prison (EA 1997 No. 22 Ss 17, 18), and the penalty for
interference with political liberty to up to one year in prison (Schedule 1).
9-3 Misconduct
The Electoral Acts contained a range of actions which have been included under this general
heading of misconduct.
The first Electoral Act (1855-56 No. 10 S 52), as noted above, set very tight
constraints on the activities of candidates during an election campaign. The first section
(cited above) set an offence of misconduct in the election of 1857 which read as very
unusual in the modern electoral context. The second section (S 54) established a misconduct
in terms of the vote.
Every person who shall vote a second time, or offer to vote a second time,
at the same election ... or who shall impersonate any other person for the
purpose of voting at such election, shall be guilty of a misdemeanour ...
[penalty] imprisoned for any term not more than two years.
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9. Electoral Offences
During the following 150 years, penalties were increased, and new offences were included in
the Acts. These are outlined below under a number of subheadings. These categories, on
occasions, are "parallel" in that the offences can relate to one or more groups of persons. As
far as possible, such instances of "misconduct" are clarified.
9-3-1 Misconduct by voters
In 1862 (EA 1862 No. 13 S 10), the penalty for voting twice and for impersonation was
reduced to up to 6 months in prison, but these penalties were restored in 1869-70 to the
levels set in the 1855-56 Act including "with or without hard labour" (EA 1869-70 No. 18
S 67). In 1879 (EA 1879 No. 141 S 83), the combined offences of impersonation and
voting twice were separated, and the wording of the latter was altered from "voting a second
time" to "voting more than once".
In 1896 (EA 1896 No. 667 Ss 163-165), the offences were set out in detail in a
consolidated list for the first time (see above for S 163). Two further sections included
further offences.
Whoever in any polling-booth on polling-day misconducts himself, or
fails to obey the lawful directions of the presiding officer, may be
removed from the polling-booth by any constable or by any person
authorised by the presiding officer (S 164).
Any person so removed entering, or attempting to re-enter the pollingbooth without the permission of the presiding officer shall be guilty of
a further electoral offence, punishable on conviction by twice the
penalties prescribed ... for the original offence (S 165).
In 1908, the list was revised and extended, with the following offences added (EA 1908
No. 971 S 189).
Voting ... as both an absent voter and personally at the same election
(fine fifty pounds or three months)
Wagering on the result of any election (fine fifty pounds)
Signing as the claimant on a claim to be registered as an elector, or on an
application to transfer or change, the name of any other person, with or
without the authority of such person, or the name of any fictitious
person (one year)
Distributing any advertisement, handbill, or pamphlet published in
contravention [of this Act] (fine twenty pounds or one month)
Any contravention of this Act, whether by act or omission, for which no
other punishment is provided (fine twenty pounds)
In 1942, "compulsory voting" was introduced (see Section 16), and any elector who
"appears to have failed to vote" at an election, without "a valid, truthful and sufficient
explanation", faced a penalty of "not less than ten shillings and not more than two pounds".
In 1985, the penalty was increased to $50 (EA 1985 No. 77 S 85), and in 1997 (EA 1997
No. 22 Schedule 1), a number of penalties were increased in value.
In 1969, the penalties for certain offences were adjusted for decimal currency (EA 1969
No. 50 Ss 38, 42). In 1981 (EA 1981 No. 35 S 60), the fines for offences were increased
substantially, and further increases were made in 1985 (EA 1985 No. 77 Ss 83, 119).
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9. Electoral Offences
In 1976 (EA 1979 No. 141 S 14), the Act included the statement that " [n]o elector
shall make, and no person shall induce an elector to make, any false statement in an
application for registration as a general postal voter", with a penalty of $200 or
imprisonment for one month.
The penalty for voting more than once was increased to up to $500 or up to 3 months
in prison in 1981 (EA 1981 No. 35 S 60).
The 1985 Act also established an offence: "No person (other than officers, scrutineers
and the electors voting or about to vote) shall be present in a polling booth during polling
except by permission of the presiding officer. Penalty $200". It also extended the law
concerning secrecy (S 120).
(1) A person shall not, by clandestine or dishonest means, attempt to
discover how a voter voted. [Penalty $1000 or three months].
(2) No person shall open an envelope containing a declaration ballot
paper except the returning officer to whom it is addressed, or an
officer acting with the authority of that returning officer [Penalty
$500].
The Act (S 124) also clarified the law on voting:
A person shall not(a) exercise or attempt to exercise a vote to which he is not entitled;
(b) vote more than once at the same election; or
(c) make any statement in any claim, application, return or declaration,
or in answer to a question, under this Act that is, to his knowledge,
false or misleading in a material respect.
The section did contain a "defence ... honest misunderstanding or mistake".
This Act also added the offence:
A person shall not ... make a statement in any claim, application, return
or declaration, or in answer to a question, under this Act, that is, to his
knowledge, false or misleading in a material aspect (S 124).
In 1988 (EA 1988 No. 4 S 17), the nature of an offence, and the penalty, in relation to
declaration voting was modified.
A person who(a) makes a declaration vote after the close of poll on polling day;
(b) when acting as an authorised witness to a declaration vote, falsely
certifies that the declaration vote was made before the close of poll
on polling day; or
(c) delivers or posts to a returning officer ... an envelope containing a
declaration vote knowing that the vote was made after the close of
poll on polling day,
is guilty of an offence [Penalty $2000 or six months].
In 1997 (EA 1997 No. 22 S 21), the penalties for the above offences were increased
substantially.
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9. Electoral Offences
9-3-2 Misconduct by candidates
The original Act (EA 1855-6 No. 10) contained a long list of offences, some of which
related to candidates in relation to "bribery and corruption" (S 47) (see above).
In 1861 (EA 1861 No. 20 S 47), the time limit on canvassing was reduced:
It shall not be lawful for any candidate ... to solicit personally the vote of
any elector, or to attend any meeting of electors ... within twelve hours
from the time appointed for the nomination ... until after the poll is
taken.
The 1893 Act (EA 1893 No. 583) made substantial changes to the laws governing
candidates. Section 4 required that
(1) All money provided by any person other than a candidate for any
electoral expense, whether as a gift, loan, advance, or deposit, shall be
paid to the candidate, and not otherwise
(2) A person who makes any payment, advance, or deposit, in
contravention of this section shall be guilty of an illegal practice.
Section 5 required that
every payment made by any candidate, or on his behalf, in respect to any
electoral expense shall, except where less than Forty Shillings, be vouched
for by a bill stating the particulars and by a receipt.
Section 6 declared as "an illegal practice" returning details of electoral expenses to the
Returning Officer without complying with the requirements of the Act (see above). The
penalty for "any false statement in any declaration" was imprisonment for two years.
The Act also established a strong law against "inducement".
Any person who induces or procures any other person to become or
withdraw from being a candidate at an election in consideration of any
payment or promise of payment to such candidate, shall be guilty of
an illegal practice, and any person withdrawing in pursuance of such
inducement or procurement shall also be guilty of an illegal practice
(S 10).
The prescribed period of the banning of candidate activity in any election was changed to
read " [i]t shall be lawful for any candidate to attend any meeting of electors held for
electoral purposes not later than forty-eight hours before the opening of the poll" (S 25).
An amending Act in 1896 (EA 1896 No. 667 S 161) provided that candidates who
committed a misconduct were faced with penalties additional to their banning from being a
member of the Parliament.
(a) Bribery or undue influence by a fine not exceeding Two Hundred
Pounds, or by imprisonment not exceeding one year.
(b) Any other illegal practice by a fine not exceeding One Hundred
Pounds, or by imprisonment not exceeding six months.
In 1908 (EA 1908 No. 971 Ss 186-7), the definitions of, and the penalties for misconduct
were streamlined to be: for bribery or undue influence, up to 200 pounds or up to one year
in prison; for all other offences, up to 100 pounds or up to 6 months in prison. The Act
(S 186) also established as "illegal practices":
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9. Electoral Offences
Any personal solicitation by the candidate of the vote of any elector
within eight hours before the opening of the poll on polling day, or at
any time during polling day before the close of polling.
Any attendance by a candidate at any meeting of electors held for
electoral purposes within forty-eight hours before noon on polling day,
or at any time during polling day before the close of polling.
The 1925 Act (EA 1925 No. 1691 S 4) declared as illegal the attendance of any candidate
at a meeting of electors "held for electoral purposes" during polling day. That is, the
candidate was now permitted to canvass and attend meetings until polling day. The
Government, through Minister of Marine AA Kirkpatrick (Labor, SAPD LC 1925: 1610)
noted that
[t]he clause was not in the Bill as originally drafted, but was inserted in
the bill on the instance of a private member in the House of Assembly.
This is in no way a party measure ... and it will mean a convenience to
the electors.
In 1981, the penalty for the offence for political activity on polling day was increased to
$1000 or up to six months in prison (EA 1981 No. 35 S 60).
In 1985 (EA 1985 No. 77 S 117), the limitations on candidate activity were further
clarified:
(1) A person shall not take part in the conduct of an election in which
he is a candidate for election. Penalty: $1 000.
(2) A candidate shall not personally solicit the vote of any elector on
polling day. Penalty: $ 1 000.
In 1997 (EA 1997 No. 22 Schedule 1), the penalty for this offence was increased to $1 250.
9-3-3 Misconduct by electoral staff
It is obvious, for an electoral process to function in a democratic manner, and be free from
corruption and manipulation, that the first necessity is for an administrative structure which
not only has the intention of producing a fair and honest election, but also has the staff, the
facilities, and the guidance to do so.
From the beginning of representative democracy in South Australia, the Electoral Acts
devoted considerable attention to the necessity for the administration of elections to be, as
far as possible, efficient, effective and, above all, "honest".
The 1855-56 Electoral Act (EA 1855-6 No. 10 S 58) included an important general
statement about the duties and responsibilities of Returning Officers. Every Officer, on
appointment, was required "to make and subscribe, before a Justice of the Peace, the
following declaration", which clearly reflected the ideals of South Australia’s most famous
electoral officer, Sheriff Boothby (see Section 15).
I do hereby promise and declare that I will faithfully perform the duties
... to the best of my understanding and ability, and that I will not reveal
or disclose any knowledge that I may acquire in the discharge of my said
office touching the vote of any elector.
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9. Electoral Offences
The reference to "misconduct" followed.
If any Returning Officer, or any Deputy Returning Officer, after having
accepted office as such, shall neglect or refuse to perform any of the
duties which by the provisions hereof he is required to perform, every
such Returning Officer or Deputy Returning Officer, shall, for every
offence, forfeit and pay any sum not less than Ten, nor exceeding Two
Hundred Pounds; and, in like manner, if any clerk or other Officer or
person appointed under or by virtue of this Act, shall neglect or refuse
to perform any of the duties which by the provisions hereof he is
required to perform, every such clerk or other officer or person shall, for
every such offence, forfeit and pay any sum not less than Five, and not
exceeding Fifty Pounds (S 59).
In 1858, specific offences first appeared in the Act (EA 1857-8 No. 12 S 34).
[A]ny Returning Officer or deputy Returning Officer convicted of
illegally dealing with the ballot boxes, shall be guilty of a misdemeanour
and be liable to a penalty of not less than Fifty nor more than Two
Hundred Pounds, and to imprisonment until the same be paid.
The 1879 Electoral Act (EA 1879 No. 141 S 72) set out a detailed list of offences in regard
to electoral papers and equipment, and included a specific reference to the official staff.
Every person who (i) Forges or fraudulently defaces or fraudulently destroys any
nomination paper ...
(ii) Forges or counterfeits or fraudulently defaces, or fraudulently
destroys any voting paper or the initials on any voting paper; or
(iii) Without due authority supplies any voting paper to any person; or
(iv) Fraudulently puts into any ballot box any paper other than the
voting paper ...
(v) Fraudulently takes out of the polling-booth any voting paper; or
(vi) Without due authority destroys, takes, opens, or otherwise
interferes with any ballot-box or voting papers ...
(vii) Refuses to deliver to the Returning Officer or his substitute any
voting paper in his possession ...
Shall be guilty of a misdemeanour, and he is liable, if he is a Returning
Officer, or an officer or clerk in attendance at a polling-booth, to
imprisonment for any term not exceeding two years, with or without
hard labour; and, if he is any other person, to imprisonment for any term
not exceeding six months, with or without hard labour.
Chief Secretary W Morgan noted that "[t]he clauses as to bribery and offences against the
law had been copied from the English Act, as we had no such practices here" (SAPD LC
1879: 433). The Attorney General made the point that
there were two reasons why hon. members should not seek to alter it in
any shape or form. It was extremely important that in such cases as this
they should have, if possible, precedents to guide them. Under those
clauses - which were, as he had stated, copied from the English Act there had been numerous prosecutions, and they therefore had cases to
which to refer (SAPD LC 1879: 206).
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9. Electoral Offences
The Ballot Act of 1894 (EA 1894 No. 606 S 8) altered the penalties to up to 20 pounds
or two years in prison. The Electoral Code Act of 1896 (EA 1896 No. 667 S 154) set new
penalties for neglect of official duties to up to 800 pounds or one year in prison. The
Electoral Act of 1969 (EA 1969 No. 50) amended the penalties to decimal currency, and
the 1981 Act (EA 1981 No. 36 S 60) increased the penalties for any breach or neglect of
official duties.
In 1908, a penalty of up to 200 pounds or up to one year in prison was set for the
offence of any postmaster influencing the vote of an absent voter making a declaration (EA
1908 No. 971 S 180).
The 1985 Electoral Act (EA 1985 No. 77 S 121) included further offences.
(1) An officer shall not solicit the vote of an elector or take in a
campaign for the election of a particular candidates or candidates
of a particular party. Penalty: $2 000 or imprisonment for six
months.
(2) An officer or scrutineer shall not attempt to influence the vote of
an elector. Penalty: $2 000 or imprisonment for six months.
(3) An officer or scrutineer shall not wear or display in a polling
booth any badge or emblem of a candidate or political party.
Penalty: $1 000.
(4) An officer or other person who acquires knowledge of the vote of
an elector through assisting the elector to vote, or otherwise in the
exercise of powers and functions under this Act, shall not divulge
that knowledge. Penalty: $2 000 or imprisonment for six months.
(5) An officer or other person shall not mark a ballot paper so as to
make possible identification of the voter. Penalty: $2 000 or
imprisonment for six months.
The 1988 Electoral Act (EA 1985 No. 4 S 21) dealt with an apparent oversight in the 1985
Act (although the second reading speech made no comment) and restored the requirement
that failure to carry out official duties was an offence, applying to any officer.
The 1997 Act (EA 1997 No. 22 Schedule 1) increased penalties for offences by
electoral staff.
9-3-4 Forgery, misrepresentation, "destruction"
The first specific reference to forgery came in the 1879 Act (EA 1879 No. 141 S 72).
Every person who –
(i) Forges or fraudulently defaces or fraudulently destroys any
nomination paper, or delivers to the Returning Officer any
nomination paper knowing the same to be forged; or
(ii) Forges or counterfeits or fraudulently defaces, or fraudulently
destroys any voting paper or the initials on any voting paper; or
(iii) Without due authority supplies any voting paper to any person; or
(iv) Fraudulently puts into any ballot box any paper other than the
voting paper which he is authorised by law to put in; or
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9. Electoral Offences
(v) Fraudulently takes out of the polling booth any voting paper; or
(vi) Without due authority destroys, takes, opens or otherwise
interferes with any ballot-box or voting papers then in use for the
purposes of the election:
(vii) Refuses to deliver to the Returning Officer or his substitute any
voting paper in his possession, whether he shall have obtained such
voting paper for the purpose of recording his vote or not:
Shall be guilty of a misdemeanour.
The penalty set for a member of the electoral staff was imprisonment for a maximum of two
years; for other persons, imprisonment for a maximum of six months.
In 1893 (EA 1893 No. 583 S 14) the Act included the offence of "wilfully destroy,
mutilate, efface, or remove any notice, or list, or other document, affixed by any Returning
Officer or by his authority" with a penalty of forty shillings.
In 1894 (EA 1894 No. 606 S 8) the offences under the heading above were extended
and clarified in a portmanteau clause.
Every person who Forges or counterfeits any voting paper, or the initials of the Returning
Officer or Deputy Returning Officer thereof, or fraudulently destroys
any voting paper, or fraudulently obliterates or tampers with the initials
... or fraudulently places any cross against the names of any candidate on
any voting paper, or fraudulently strikes out the whole of any names of
any candidate on any voting-paper, or fraudulently writes or stamps
anything on any voting paper, or gives out to any elector or other person
any voting-paper, knowing the same, or the initials ... to have been forged
or counterfeited, or the initials ... to have been obliterated or tampered
with, or a cross to have been placed against the names of any candidate
on such voting-paper, or any of the names of any candidate thereon to
have been struck out, or which contains any writing or stamp thereon
except the initials of the Returning Officer or Deputy Returning
Officer...
The penalties for such fraud remained the same.
In 1896, these offences were again separated into separate clauses (EA 1896 No. 667
S 163).
In 1908, the offence was included of "wilfully defacing, mutilating, destroying, or
removing any list of voters or copy of the roll signed by the Returning Officer, or any notice,
list, or other document affixed by any Returning Officer ... Penalty: Two Pounds".
In 1913, "[s]igning the name of any other person, whether with or without the
authority of such person, or the name of any fictitious person" on a claim or declaration
became an offence, with a penalty of imprisonment for up to one year, and "signing as a
witness" to an absent voter declaration or any similar document if the voter had not signed
"before him" was an offence; penalty imprisonment for up to six months.
The 1969 Act (EA 1969 No. 50 S 38) incorporated decimal currency into penalties.
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9. Electoral Offences
In the matter of electoral visitors, an amendment (EA 1976 No. 114 S 23) stated that
[n]o person other than(a) the elector to whom the ballot paper has been issued; or
(b) an electoral visitor ...
shall mark the ballot paper. Penalty: Four hundred dollars, or
imprisonment for six months.
Penalties for the offences were increased in 1981 (EA 1981 No. 35 S 60), and in 1985 (EA
1985 No. 77 Ss 123, 124, 128). No mention was made of any offence of removing a ballot
paper from the polling place in the 1985 list of offences. This was remedied in 1988 (EA
1988 No. 4 S 22). Penalties were again increased in 1997 (EA 1997 No. 22 Schedule 1).
9-3-5 Malpractice by scrutineers
Scrutineers have been part of the electoral processes in South Australia since the first
election. They are "agents" appointed by candidates and parties to observe and monitor the
voting and counting at an election on their behalf. Their formal functions are to observe the
process and to report any alleged malpractice to the presiding officer.
There is an informal positive product; the presence of scrutineers has an effect of curbing any tendency
for wrong actions by any person, and ensures the transparency of the process.
Scrutineers "come into their own" during the counting process, especially in the case of a close contest.
Every vote will be scrutinised, and every attempt made by the scrutineers for one party to argue that all
doubtful votes which can be interpreted as for their party will be included in the count, and all doubtful
votes for any other candidate will be rejected.
The first mention of offences relating to scrutineers was included in the Electoral Act in
1929 (EA 1929 No. 1929 S 99).
A scrutineer shall not (a) interfere with or attempt to influence any elector within the polling
booth; or
(b) communicate with any person in the polling booth except so far as
is necessary in the discharge of his functions.
Penalty: Five Pounds
At the same time, the Act specified a legitimate role for scrutineers: "A scrutineer shall not
be prevented from entering or leaving a polling booth during the polling", but also specified
that only one scrutineer "for each candidate" was permitted to be present in the polling
booth (S 99).
The penalty was increased to $20 in 1969 (EA 1969 No. 50 S 27), and to $40 in 1981
(EA 1981 No. 35 S 60).
The penalty for a scrutineer wearing or displaying any party or candidate emblem in
the polling place was set as an offence in 1985 (EA 1985 No. 77 S 121), with a penalty
of $1 000, increased to $1 250 in 1997 (EA 1997 No. 22 Schedule 1).
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9. Electoral Offences
9-3-6 Miscellaneous
The 1929 Electoral Act established a new offence related to a new technology:
No person shall at any time between the time of the issue of the writ for
any election and the polling day in any picture theatre on the occasion of
any entertainment consisting wholly or partly of moving pictures exhibit
or cause to be exhibited whether by means of a cinematograph or
otherwise any electoral matter in reference to such election. [Penalty] ...
Two Hundred Pounds (EA 1929 No. 1929 S 155).
This offence was removed from the Act in 1969 (EA 1969 No. 50 S 39).
In 1929, the Electoral Act was also amended with the inclusion of a section stating
[a]ny person who accepts for transmission to the returning officer for the
State or a Registrar the custody of a claim for enrolment or transfer of
enrolment shall forthwith transmit the claim to the returning officer for
the State or the Registrar. Penalty - Fifty Pounds (EA 1929 No. 1929 S 156).
The penalty was increased to $ 500 in 1981 (EA 1981 No. 35 S 60).
An insertion into the Act in 1955 related to associations.
If any association, or any member of the controlling or executive body
of an association, or any person acting on behalf of an association,
publishes or announces without the written authority of the candidate
any matter in which it is claimed or suggested that a candidate in an
election is associated with, or supports the policy or activities of that
association, that association, member, officer or person shall be guilty of
an offence: Penalty One Hundred Pounds (EA 1955 No. 52 S 14).
The Attorney General, CD Rowe (Liberal), outlined the reason for the amendment.
The justification for the clause lies in the fact that considerable harm
may be done to a candidate by a false representation that he belongs or
supports an association which is disliked by his electors, or whose policy
is opposed to the candidate (SAPD 1955: 1706).
The penalty for this offence was increased, and converted to decimal currency in 1969
(EA 1969 No. 50 S 40).
In 1985, the Act incorporated a clause to protect the "official mark".
A person shall not, without lawful authority,
(a) make any mark purporting to be an official mark on or in any paper;
(b) have in his possession any paper bearing an official mark; or
(c) make use of or have in his possession any instrument capable of
making on or in any paper an official mark. Penalty: $ 1 000 (EA 1985
No. 77 S 129).
The introduction of electoral visitors required specification of offences (EA 1976 No. 114 S 23).
A person shall not hinder or obstruct an electoral visitor in the exercise
of his powers ... Penalty: Two hundred dollars.
A person required by an electoral visitor to furnish information under
this section shall not refuse or fail to furnish that information or furnish
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9. Electoral Offences
information that is, to his knowledge, false or misleading in a material
particular. Penalty: Two hundred dollars.
No person other than (a) the elector to whom the ballot paper has been issued; or
(b) an electoral visitor ...
shall mark a vote upon the ballot-paper. Penalty: Four hundred dollars,
or imprisonment for six months.
Any person present when an elector is voting with an electoral visitor
shall (a) obey all directions of the electoral visitor; and
(b) ...
(i) refrain from making any communication whatever to the
elector in relation to his vote;
(ii) refrain from assisting the elector or in any manner
interfering with him in relation to his vote; and
(iii) refrain from looking at the elector’s vote or doing anything
whereby he may become acquainted with the elector’s vote.
Penalty: Four hundred dollars, or imprisonment for three months.
The Electoral Act was also amended in 1981 (EA 1981 No. 35 S 43) to provide a penalty
for any case where a person assisting a voter in a polling both discloses any knowledge of the
vote of that voter. Penalty: one thousand dollars or imprisonment for three months.
In 1985, the Electoral Act was amended (EA 1985 No. 77 S 126) to deal with illegal
advocacy.
(1) A person shall not publicly advocate (a) that a person who is entitled to vote at an election should
abstain from voting at the election;
(b) that a voter should mark a ballot paper otherwise than in the
manner prescribed ...; or
(c) that a voter should refrain from marking a ballot paper
issued to the voter for the purpose of voting.
Penalty: $ 2 000.
(2) A person shall not distribute how-to-vote-cards in relation to an
election unless each card is marked so as to indicate a valid vote in
the manner prescribed ... Penalty: $ 2 000.
In 1997, this penalty was increased to $2 500 or up to six months in prison.
As this section has demonstrated, the legislators from the start were constantly concerned to provide an
election structure and process which was as fair and just as possible. The offences and the penalties
were often referred to in the "Hansard", and were examined and amended in a surprising proportion of
the Electoral Bills. The matter was taken seriously. Whether this constant attention is the reason, or
whether the participants in elections in South Australia showed a commitment to a fair, just, and
democratic election process, the history of elections in the State has been generally free of corruption
and malpractice.
The administration of the elections has been notably free of any accusations of malpractice. Due
partly to the tradition of professionalism and probity established in the long "reign" of the first Returning
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9. Electoral Offences
Officer, Boothby (see below), but also due to the officers who succeeded him and maintained that
tradition, the practice of elections has been efficient, effective, rigorous yet fair, and absolute in a
commitment to a just process.
The various offences and penalties applying to voters and "other persons" and groups have either
been a powerful and effective disincentive against malpractice, or there has been a general culture of a
commitment to a fair system, or both. Certainly few cases of malpractice have emerged, and South
Australia can boast of a very "clean" election system and practice over time.
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10 Advertising, Public Information and Education
10-1 Introduction
There are three different components of this general theme of "advertising". All are central
to the "fair and just" principles of representative democracy, and hence to the issue of fair,
equal and valid access by the citizens to their representative institutions, and to their
representatives.
The first component concerns the nature and proof of authorship of advertisements by
candidates, groups and political parties. The parliaments of South Australia, from the first
mention of political advertising in the legislation in 1893, spent considerable time debating
these issues.
Electors should be able to read and assess the material prepared by the candidates,
groups and parties with some guarantee that no one candidate, group or party can have an
unfair advantage. The citizens should have protection against bogus material. Hence, from
1893, the SA parliament established a series of laws governing such advertising material.
The second and third components (see below) were not included in the Electoral Act
until 1985: "political consumer protection" for the citizens, and publicity through the SEO
for electoral matters. In electoral politics, there was little, if any constraint on what
candidates, groups and parties could include in their electoral advertising material. There was
no substantive limitation on misleading political advertising. It was, for the electors, a case
of caveat emptor.
This had major implications for the quality of access. If the citizens were expected to
judge between competing candidates and parties, then they had a right to expect that
judgement could be based on accurate and valid material presented to them.
The Federal Parliament faced this issue in a major re-write of the Commonwealth
Electoral Act in 1983-84. A Bill presented to the House of Representatives, which was
carried through to an Act, contained a very strong "consumer protection" clause.
A person shall not, during the relevant period in relation to an election
under this Act, print, publish or distribute, or cause, permit or authorise
to be printed, published or distributed, any electoral advertisement
containing a statement
(a) that is untrue; and
(b) that is, or is likely to be, misleading or deceptive.
Unfortunately for the quality of access of Australian voters in the electoral process, this clause was
deleted from the Act, when Labor, Liberal and National parties voted against it. In fact, the Joint Select
Committee on Electoral Reform (a committee dominated by the three entrenched parties) recommended
it should be deleted, and the three political parties agreed.
Despite the void left in the Federal legislation, the South Australian Parliament in 1985 did
incorporate a "truth in political advertising" clause into the Electoral Act. It deserves commendation for
this action.
The third component concerns the mandate given to the South Australian State Electoral
Office in 1985 (EA 1985 No. 7) to publicise and advertise the election and its processes.
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10. Advertising, Public Information and Education
10-2 Electoral publicity
The first legislation concerning electoral advertisements was included in the 1893 Electoral
Law Amendment Act (EA 1893 No. 583 S 15).
(a) Every circular, card, bill, placard or poster having reference to an
election, or to any candidate thereat, shall bear upon the face
thereof the name and address of the printer thereof, and the name
and address of the person who authorised the printing ...
(b) Every advertisement having reference to an election, or to any
candidate thereat, shall bear at the end thereof the name and
address of the person by whom the same was authorised ... Penalty
... not exceeding Twenty Pounds, or ... imprisonment with or
without hard labour for a period of not more than one month.
Restrictions did not apply to the size of electoral advertisements and
where they could be placed in the early years. Port Germein ca. 1880
This proposal engendered a brief but spirited debate in the Parliament. As it was rare to find
in the "Hansard" an issue debated and resolved in such a short time, the debate is reported
in detail (SAPD LC 1893: 3310 - 1).
Dr Campbell moved to strike out "circular, card" in line 1. This would
leave the clause the same as that in the English Act.
Dr Magarey opposed this, as the existing provision provided a method
of identification.
E Ward opposed the amendment, and would prefer to make the clause
more stringent than it was. As it stood the clause would have no practical
effect in preventing the issue and circulation of election squibs.
AM Simpson thought the clause as it stood was unnecessary
Dr Campbell wished to withdraw his amendment.
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RC Baker objected. He wished to see the amendment carried, and would
press it to a division.
Dr Campbell proposed to withdraw his amendment, because after
consideration he did not think the matter sufficiently important to press
to an issue.The Chief Secretary said that if the amendment was carried
an opportunity would be offered for evasion which would be taken
advantage of, and circulars would be largely used when posters could not
be utilised. He considered the clause should be left as it stood.
E Ward pointed out that some candidates could only reach numbers of
their constituents by circular letters. On these they put their own name,
but not the name and address of the printers. Letters which were
lithographed came under the heading of circulars, and surely they were
not going to say that such should have the name and address of the
printer upon them.
JH Angas hoped the words would be excised.
Amendment carried
E Ward moved to strike out the word "bill" in the same line.
... negatived
JJ Duncan asked the meaning of the word "advertisement", which might
be construed to mean many things, and he also wished to know who was
"the person by whom the same was inserted".
The Chief Secretary said the word referred to an advertisement in a
newspaper as an advertisement and in the advertising columns. With
reference to the other point, he thought it would be better to substitute
"authorised" for "inserted"....
Dr Campbell did not think that if a person was not an agent of the
candidate he would be liable for conviction for offending against the
clause
E Ward said that of late years the newspapers had published columns of
speeches of candidates which the public thought were merely reports, but
which were really advertisements, and he wanted to know whether the
term "advertisement" would apply to such advertisements. (The Chief
Secretary - "I should think not"). Well, then, there ought to be an
interpretation clause giving the meaning of the word. Dr Duncan’s
amendment was carried.
RC Baker thought "authorised" was a very vague word, because it would
be impossible to say who authorised an advertisement.
JV O’Loghlin said the only way to overcome the difficulty would be to
see that an order signed by someone accompanied every advertisement.
JH Angas could not see any reason for retaining the clause and he hoped
it would be struck out.
In 1896, the penalties were increased to up to 100 pounds or up to six months in prison
(EA 1896 No. 667 Ss 161, 162), and modified again in 1929 to 100 pounds or six months
in prison (EA 1929 No. 1929 S 152).
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Further measures in the 1955 Act (EA 1955 No. 52 S 14) concerned signs and posters.
A person shall not post up or exhibit, or permit to be posted up or
exhibited, on any building, vehicle, vessel, hoarding or structure of any
kind an electoral poster the area of which is more than one hundred and
twenty square inches ... every electoral poster any part of which is within
three feet of another electoral poster shall be regarded as forming part
of that other poster and the combined area of all such electoral posters
shall be deemed to be the area of one electoral poster. Penalty: One
hundred pounds.
No explanation was given for these limitations. However, CR Cudmore (Liberal) noted
(SAPD LC 1955: 1783) that
[t]he Bill originally provided that they were to be no more than 60 square
inches in size the whole point of that being to conform with Federal
legislation. We all know what happened in a federal election some years
ago when this limitation was brought in. In Norwood, someone had the
bright idea that, if posters were only to be 10 by six inches, they could fill
a whole window of posters of that size ... all that has been overcome ...
The Act also incorporated a clause that
[a] person shall not write, draw or depict any electoral matter directly on
any roadway, footpath, building, vehicle, vessels, fence, hoarding or
structure of any kind. Penalty: One hundred pounds.
Again, the Minister noted only that this legislation followed the Commonwealth, and he
emphasised that the police force had the authority "to remove or obliterate electoral posters
or electoral matters exhibited in contravention of the provisions".
SC Bevan (Labor, SAPD LC 1955: 1783) noted that the clause was "a total
prohibition".
If I, as a candidate, working in my own district affix a poster not
exceeding 120 square inches to my own motor car or on my own home
am I committing a breach of the Act. If I am I consider that we are
encroaching on the rights of the individual.
CD Rowe - This clause follows the Federal Act.
SC Bevan - That may be so but I have no recollection of any person
being prosecuted for displaying electoral posters on his own home....
Committee rooms of political parties are usually established as close as
possible to polling booths, and the verandahs or rooms of private homes
are used for that purpose. It is customary to attach a streamer to the
verandah or fence so that people will know that it is a party committee
room, and I see no harm in that. If, however, we may display posters of
only 120 square inches people will want magnifying glasses to see them.
KEJ Bardolph - At election times we often see walls or doors scrawled
over with electioneering slogans. Does this provision apply merely to that
sort of thing or to recognised, printed electoral posters?
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In 1969 (EA 1969 No. 50 S 41), the provisions relating to writing material were amended
by allowing such depiction on a "building, vehicle, vessel, fence, hoarding ... only with the
permission of the owner" - and proof of such permission was the responsibility of the
author of the material. Penalties were adjusted for decimal currency. The amendment also
corrected an oversight: the laws would now apply "to an election or referendum although the
writ ... has not been issued". Further, the amendment specifically allowed the "projection by
means of cinematograph or other similar apparatus onto a screen in a public theatre, hall or
premises used for public entertainment". In his second reading speech, Minister of Local
Government CM Hill (Liberal) noted that this clause repealed the restrictions on such
advertising: "with the large amount of television advertising associated with electoral
campaigning, it is thought that this restriction is no longer warranted" (SAPD 1969: 807).
Penalties were increased in 1981 (EA 1981 No. 35 S 60).
An amending Act in 1982 (EA 1982 No. 24 S 10) established that
a person shall not publish electoral material or cause electoral material to
be published unless it contains (a) the name and address of the person authorising publication of the
electoral material; and
(b) where it is in printed form - the name and address of the printer.
Penalty: Five hundred dollars.
The "electoral material" was defined as
an advertisement or notice containing matter intended or calculated to
affect the result of an election or referendum under the law of the State.
The Minister’s speech (SAPD HA 1982: 3025) noted that the requirement of the name of
the printer "does not apply in relation to newspapers, magazines, journals and similar
publications that are issued at periodic intervals of less than one month". The proposal
received the support of the Parliament, and P Blacker (National) gave an example of why it
was necessary legislation (SAPD HA 1982: 3046).
That requirement is quite in order. I have had occasions when I had to
question the authenticity of certain publications that have appeared,
some of which have endeavoured to use not only my own name but, by
reflection, my attitudes, and I have had to threaten legal action in a
couple of instances when that occurred. If the address of the printer is
clearly displayed then at least there is some recourse available to an
aggrieved person to trace the origin of the wrongful advertisements or
other matter.
The consolidated Act passed in 1985 (EA 1985 No. 77) devoted a section to "Electoral
Advertisements, Commentaries and Other Material", matter which was largely new or
substantially revised, and generally applies today.
A person shall not publish or distribute, or cause or permit to be
published or distributed, an electoral advertisement in printed form
unless (a) the name and address (not being a post office box) of the author
of the advertisement, or the person who authorised its publication,
appears at the end; and
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(b) in the case of an electoral advertisement that is printed otherwise
than in a newspaper - the name and place of business of the
printer appears at the end. ... Penalty ... a natural person - by a fine
not exceeding $1 000; ... a body corporate ... a fine not exceeding
$5 000.
This requirement did not apply to "a car sticker, T-shirt, lapel button, lapel badge, pen, pencil
or balloon" (S 112).
J Oswald (Liberal) sought clarification of the "definition of a car sticker".
Over recent years it has been the practice for members to carry car
stickers on their rear windscreens. It could be a practice in the future, as
signs get larger, that signs will be placed on the roof. I imagine signs on
the roof ...would require names and addresses of authorisation ... if
members used the large stick-on car stickers, which may be as large as 2
ft by 18 in. ... I am unsure whether these types of stickers would require
authorisation ... none of us at any stage will unwittingly infringe the
legislation.
GJ Crafter (Labor) felt authorisation would not be needed. There was clearly a need for
further clarification.
Mr Oswald: ... I refer specifically in this case to a sign that members may
erect and have on the roofs of their cars, perhaps 1ft by 4 ft in size,
saying, "Vote for Freddy the goose". I seek clarification as to whether or
not that sign requires authorisation, because in the past it did.
GJ Crafter: Once again, I think there is a limit as to how far one can
interpret the English language. A car sticker is something that is fixed by
means of adhesive to the motor vehicle. If one puts a "freddy the goose"
sign on top of his car by screws and bolts, I think that is outside the
intent of a car sticker and those categories that are referred to in the
clause
It should be noted that during the research for this report, it became obvious, early, that there was no
direct correlation between the importance of an issue, and the length and substance of the debates in
the parliament. Especially in debates on consolidating Bills, there was often a focus of one or two items
and clauses, and an acceptance of others without any debate. On the other hand, on seemingly simple
matters such as the sizes of electoral advertisements, the debates were long, often acrimonious, and
detailed. On the other hand, the more recent debates have been shorter.
One reason for this was the development of political party domination of the parliaments. Hence
the diversity of opinion expressed in the debates was very much reduced. The second reason for the
change was an increasing tendency for informal discussions between the major parties and, more
recently, the minor parties and independents before the matters are brought before the parliament. This
has involved attempts to find "common ground" between the participants, and to expedite debate. If this
is achieved, then many measures which were potentially divisive at the parliamentary stage are resolved
by discussion and compromise before the "public" process.
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The Act continued:
(1) Where electoral matter is to be inserted in a newspaper, the
proprietor of the newspaper shall cause the word "advertisement" to
be printed as a headline in letters not smaller than 10 point or long
primer to each article or paragraph containing the electoral matter.
Penalty: ... natural person - $500 ... body corporate - $2 500.
(2) This section applies only in respect of electoral matter for the
publication of which payment or other consideration has been, or is
to be, given (S 114).
The size limits of advertisements were set (S 115) to be a maximum of 1 square metre on
any "vehicle or vessel ... building, hoarding or other structure".
The Act also incorporated new requirements in regard to political commentaries.
A person shall not, during an election period, publish material consisting
of, or containing a commentary on, any candidate or political party, or
the issues being submitted to the electors, in written form, or by radio
or television, unless the material or the programme in which the material
is presented contains the statement of the name and address (not being
a post office box) of a person who takes the responsibility for the
publication of the material. Penalty - ... natural person - $500; ... body
corporate - $ 2 500.
This section excluded the following:
(a) the publication in a newspaper of a leading article;
(b) the publication of the report of a meeting that does not contain any
comment (other than comment made by a speaker at the meeting) on
any candidate, or political party, or the issues being submitted to the
electors;
(c) the publication in a newspaper of an article, letter, report or other
matter if the newspaper contains a statement to the effect that a
person whose name and address (not being a post office box) appears
in the statement takes responsibility for the publication of all
electoral matter published in the newspaper;
(d) a news service or a current affairs programme on radio or television
(S 116).
An amending Act (EA 1997 No. 22) in 1997 increased the penalties for such offences.
10-3 Misleading advertising
As noted above, the Commonwealth Electoral Act, for a brief period, contained a substantial "truth in
political advertising" section. The Commonwealth Parliament then voted to delete the section entirely. It
is therefore worth noting that the South Australian parliament has moved substantially further in this
area of consumer political protection than the Federal parliament.
The Labor, Liberal and National party members on the Commonwealth Parliament’s Joint
Committee in 1984 had recommended that the clause be deleted from the Act for the
following reasons:
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Political advertising differs from other forms of advertising in that it
promotes intangibles, ideas, policies and images. ... may well involve
vigorous controversies over the policies of the opposing parties ... even
though fair advertising is desirable, it is not possible to control political
advertising by legislation ... repeal the section, effectively leaving the
decision as to whether political advertising is true or false to the electors.
This was a major blow to open, fair and just access. The decision of the SA parliament to reject such an
attitude, and to incorporate real strengthening of the advertising guidelines is to be commended.
The case for a "truth in political advertising" section in the Electoral Act is absolutely compelling,
despite the views of the major parties in the Commonwealth parliament in 1984.
All sectors of the economy which relate to consumers are bound by strict laws in terms of product
quality and product advertising. Consumers can call them to account in a wide range of courts. In the
commercial, business and trading sectors of Australian life, both sides of the "consumer equation" are
covered by a corpus of laws and a set of powerful institutions. Acts regarding trades practices,
advertising, fair competition and consumer protection are in force, and are applied firmly.
Until 1985 in South Australia, and still the case in the Commonwealth arena, there was little if any
constraint on similar activities of candidates, groups and parties in the electoral process. Despite the
fundamental importance of a fair and just electoral process, and despite the commitment in the
parliaments of Australia to the need for powerful constraints on the business, financial and retail sectors
in regard to consumer protection, the political arena remained a matter of caveat emptor.
The 1985 consolidated Electoral Act (EA 1985 No. 77) contained a new section relating
to advertising.
(1) Where (a) an electoral advertisement contains a statement
purporting to be a statement of fact; and
(b) the statement is inaccurate and misleading to a material
extent, a person who authorised, caused or permitted the
publication of the advertisement shall be guilty of an
offence. Penalty ... natural person - $1 000; ... body
corporate $ 10 000.
(2) It is a defence to a charge of an offence against subsection (1) for
the defendant to prove (a) that he took no part in determining the contents of the
advertisement; and
(b) that he could not reasonably be expected to have known
that the statement to which the charge relates was
inaccurate and misleading.
(3) This section applies to advertisements published by any means
(including radio or television) (S 113).
GJ Crafter (Labor), simply commented that the section "makes it an offence to publish
inaccurate and misleading electoral advertisements" (SAPD HA 1985: 4254).
This section introduced a major advance in the accuracy and validity of the electoral
material placed before the voters, and on which they would be expected to make decisions.
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Crafter continued his explanation. In the case where
electoral matter is to be inserted in a newspaper, the proprietor of the
newspaper shall cause the word "advertisement" to be printed as a
headline in letters not smaller than 10 point or long primer to each
article or paragraph containing the electoral matter (S 114).
Again, he merely noted that the section "requires an electoral advertisement to be clearly
designated as such".
Both clauses were passed without debate.
An amendment in 1997 (EA 1997 No. 22 S 19), increased the penalty for "a natural
person" to $1 250. It also included an authority for the Electoral Commissioner in such cases.
If the Electoral Commissioner is satisfied that an electoral advertisement
contains a statement purporting to be a statement of fact that is
inaccurate and misleading to a material extent, the Electoral
Commissioner may request the advertiser to do one or more of the
following:
(a) withdraw the advertisement from further publication;
(b) publish a retraction in specified terms and a specified manner or form, ...
If the Commissioner decides that further action is necessary, he can refer the matter to the
Supreme Court, which (S 19), if "satisfied beyond reasonable doubt on the application by
the Electoral Commissioner that an electoral advertisement ... is inaccurate and misleading
to a material extent", can order the actions proposed by the Commissioner, and apply a
maximum penalty (S 19) "if the offender is a natural person - $1 250 ... body corporate $10 000".
The Attorney General, KT Griffin (Liberal), noted in the second reading speech
(SAPD 1996: 401) that the addition of the Court was important.
It has been the practice of the Electoral Commissioner, when satisfied
that an electoral advertisement is inaccurate or misleading, to allow the
person the opportunity to withdraw the advertisement. This is [now]
given statutory backing. ... It also provides for the Electoral
Commissioner to require the publication of a retraction.
The South Australian Electoral Act, in terms of consumer protection, has moved far beyond the
Commonwealth Act. The definition of "misleading" has the required breadth to be a real protection for
the political consumer - the voter, and the Act gives considerable authority to the Electoral
Commissioner to deal with such cases. The Act has real "teeth". In this area of electoral processes, South
Australia has returned to its 1857 reputation of being a leader in the "democracy" of its elections.
On the other hand, it is the case that the time taken to implement the law on these matters may
result in an action taken in relation to a specific event which will not be finally resolved for some time.
That is, the resolution occurs well after the election, rather than at the time of the alleged offence, and
the imposition of any penalty.
As with most matters concerned with State elections, the laws regarding election advertising are
established by the South Australian Parliament. Similarly, the other legislatures in Australia establish
their own statutes for their jurisdictions, and there is a resultant lack of uniformity among the election
structures and processes in Australia. There have been positive moves to produce more uniform
practices but, in the final analysis, it is the policy of the party in government in each of the
Commonwealth, the State and the Territories which set the relevant electoral laws.
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This is certainly the case in regard to political and electoral advertising - except for one area.
At the time of the development of electronic media after federation, such matters were not
included in the Constitution. The governments of Australia decided, sensibly, to grant the
authority to pass laws in this area to the Commonwealth. Hence any Commonwealth law
regarding the utilisation of the electronic media applies in South Australia. The issue of the
content of such material is a State responsibility.
Under the Commonwealth Broadcasting Services Act of 1991, there is a ban on paid
political advertising on the electronic media from midnight on the Wednesday until the close
of polling in Australia.
10-4 Advertising, education and research
Electoral education is considered an integral
aspect of access to the electoral system.
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10. Advertising, Public Information and Education
As noted above, under the 1985 Act (EA 1985 No. 77 S 8), the responsibilities and
functions of the Electoral Office and the Electoral Commissioner were extended to include
the statement that the Commissioner
(c) is responsible for the carrying out of appropriate programmes of
publicity and public education in order to ensure that the public is
adequately informed of their democratic rights and obligations
under this Act.
The 2002 Report of the State Electoral Office included a major heading:
"Education for Participation".
Objective:
Help and encourage the people to participate with confidence and trust,
in the democratic processes of representation
Outcomes:
1. Complementary education and advertising programs that raise
elector awareness of the voting and vote counting systems used for
general elections
2. Increased enrolment rates in the 18-24 years old age group
3. Voter participation at the next general elections not less than 93%
of the eligible electorate.
The functions of education and participation are complementary within the broad aim of a more
democratic electoral process. The former involves the "teaching" of the democratic values of the society;
the latter involves a key component of the implementation of those values. Both involve "core" and "noncore" functions: the former, the administration and conduct of elections; the latter, the research,
education and participation components. Both involve the democratic interests and "health" of the
community.
In a situation of limited resources, there is a dilemma – even a conflict – over the allocation of
resources. This should not occur; both the "core" and "non-core" functions are important in a democratic
society, and must be resourced to achieve the aims at the highest level.
The 2000-2001 Annual Report stated:
The office, in responding to a myriad of requests for information from
members of the community, interacts not only with students and
teachers from the three education sectors but also local, interstate
government and corporate organisations. This interaction is invaluable as
a tool for assessing the appropriateness of information as well as the
presentation and dissemination of office educational materials.
The SEO prepared an election "EasyGuide" for the 2002 elections, and has an ongoing
relationship with schools in regard to internal elections.
One of its strategic objectives is to "maintain an education program aimed at diverse
sectors of the community, particularly the young". This has involved participation in the
Constitutional Centenary Foundation to "promote community discussion of the Australian
constitutional system", an electoral enrolment and information initiative in all secondary
schools, and joint funding of the Electoral Education Centre. Further, the SEO has
developed a Community Outreach Program, designed
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10. Advertising, Public Information and Education
to raise the level of understanding and hence participation of those no
longer engaged in formal education programs or those with limited or
no access to the Electoral Education centre. This group has been
identified as not only diverse in composition but different in terms of
mobility and access.
The SEO also has a commitment to "utilise a variety of mediums and technologies for
community materials". These include information sheets, booklets, posters, maps, and the
SEO website: www.seo.sa.gov.au.
Overall, within a limited budget, and a staff limited in numbers, it is difficult to come to any other
conclusion than that the State Electoral Office is making a maximum effort to increase access, both
quantitative and qualitative, in terms of the electoral processes for South Australian citizens.
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11 Political Parties
11-1 Introduction
The electoral legislation, from early in colonial times, contained references to "groups" (see
above, Section 6, relating to voting systems and methods). From 1890, when the first party,
the United Labor Party, was formed, and especially from 1910, when a party system became
dominant in the electorate and the parliament, the term "group" was still used. The first
mention of "party" occurred when electoral systems based on contingent and preferential
voting, and proportional representation, were under consideration, and even though political
parties were a dominant component of elections from the early years of the 20th century,
there was little recognition of them or their role in the electoral legislation. It was the case
in South Australia, as in the rest of the Commonwealth, that parties remained generally
outside of the electoral legislation.
In 1985, in a major development, party registration was introduced, and the names of
registered political parties were placed on the ballot papers next to the candidates’ names, for
the first time. The Act (EA 1985 No. 77) defined a political party as "an organisation of
which an object or activity is the promotion of the election to the House of Assembly or the
Legislative Council of a candidate or candidates endorsed by it".
This late incorporation of "party" into the Act is surprising. From 1890, parties existed; by 1910 there
were no members of the parliament who were not endorsed candidates of the two major parties - Labor
and Liberal. From 1910, parties became "the central intermediate and intermediary structure between
society and government" (Sartori 1976: ix). Their influence was felt throughout the South Australian
political society. They were pervasive, ubiquitous, and central to all levels of political activity, debate and
decision-making. Most important, they dominated the processes of representative and responsible
government, and the nature of access for the citizens.
Parties in the modern South Australia mobilise voters, socialise voters - both to the political
system and to themselves, dominate the process of recruitment of members of parliament through their
pre-selection and endorsement of all but a handful of candidates, and, almost exclusively, took over the
functions of aggregation and articulation of interests in the political society.
Until 1985, they were "extra-legal’ in relation to the electoral system, and the Electoral and
Constitution Acts. That is, the prime, even dominating components of, and the arbiters of,
the system of democratic representation were not recognised as a formal, statutory, part of
that system!
This had potential repercussions for democratic representation. Parties "drove" the electoral system in
the sense that it was party which proposed, opposed, amended, and passed or rejected all legislation
concerning electoral matters from 1910. All electoral issues became irretrievably intermeshed with party
policies and, on many occasions, party self-interest. This was most evident in every debate about
electoral geography; it permeated all matters concerned with electoral systems. The Electoral Act, by the
1920s, was debated by parties in the parliament, in party terms, and was amended in the light of party
policies. It was, increasingly, a weapon in the party confrontations. The omission from the Act of any
mention of party was a nonsense. The voters were aware that parties existed, and that they dominated
the elections and the campaigns, yet the Act which set the rules for those elections ignored parties.
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11. Political Parties
Why was there no mention in the Act until 1985? The only answer can be that, as the parties
themselves comprised the legislature and hence made the laws, they did not wish to be so included. The
only reason for that is they did not want their activities constrained by the law.
In 1984, the Commonwealth Parliament introduced public funding and disclosure in regard to
parties with federal registration. A similar law was not introduced in South Australia, partly because the
funding element would have brought the parties much further into the public arena, and made them
more liable for intervention by the judiciary in terms of their internal structures and processes. Further,
the disclosure requirements would not have been welcomed. However, in recent times, there is evidence
that the parties – major and minor – find the idea of public funding more attractive. Further, recent court
cases concerning parties in various States have indicated a new willingness of the courts to become
involved. Hence it is likely that public funding and disclosure is on the agenda for South Australia.
Even after 1985, there is no mention of the internal workings of parties, and few mentions of what
they can, and cannot do in relation to elections, in the Acts. It can be asserted that the mentions which
are in the Electoral Act, and the content and direction of those mentions, are there because the major
parties find them beneficial to them, not because they improve the quality of access for the citizens. In
fact, many of the mentions in the Act actually restrict access.
On the other hand, in very recent years, the judiciary has intervened in the internal affairs of
political parties, especially concerning the application of party rules to pre-selection processes. The
cases taken to the courts in Queensland, and in the Ralph Clarke case in South Australia, have
established a new principle: that courts are more ready and willing to intervene in what was once an
internal matter of "private" organizations. This trend has the potential to increase the probity of the
parties, and hence the quality of representation in the electoral system.
This is not to say that the mentions of "party" in the Electoral Act did not, in some way, broaden
access. For example, placing the names of parties of candidates on the ballot paper made the decisions
of voters easier - if they wished to vote on party lines. And the concept of the registration of parties did
establish a minimum threshold of organisation and structure which the voters could then assume, and
compare with the other "parties" which had failed to satisfy the requirements for registration.
On the other hand, from the first mention of "party" in 1985, and in subsequent amendments to the
Act, it can be argued that such mentions in the legislation are essentially there for the benefit of the
parties, not to increase the quality of the representation of the voters. This is clearly evident in the
debates.
11-2 Registration
In 1985 (EA 1985 No. 77), a new Part was incorporated into the Electoral Act. This Part
did not include any reference to the "private" structures, processes or activities of parties,
although it set legislation concerning their involvement in the electoral process.
An "eligible political party" in relation to registration was defined as:
(a) a parliamentary party ... [defined as a party with at least one member
of any Parliament in Australia]; or
(b) a political party, other than a parliamentary party, that has at least
150 members (S 36).
The Electoral Commissioner was charged with establishing a Register of Political Parties,
which "shall be open for public inspection, without fee" (S 38).
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11. Political Parties
Any application for registration had to include: the name of the party; an abbreviation
(if so desired by the party); the name and address of the registered officer and a specimen
signature; the name and address of the applicant and his capacity in the party; and a copy of
the constitution of the party (S 39). The Commissioner was required to publish notice of
the application "in the Gazette and in a newspaper circulating generally within the State";
and invite objections to the application (S 41). The Commissioner would then "determine
the application".
The grounds on which such application can be refused by the Commissioner are:
if the name of the party:
(a) comprises more than six words;
(b) is obscene;
(c) is the name, or is an abbreviation or acronym of the name, of
another political party (not being a related political party) that is a
parliamentary party or a registered political party;
(d) so nearly resembles the name, or an abbreviation or acronym of the
name, of another political party (not being a related political party)
that is a parliamentary party or a registered political party that it is
likely to be confused with or mistaken for that name, abbreviation
or acronym; or
(e) comprises the words "Independent Party" or comprises or contains
the word "independent" and(i) the name, or abbreviation or acronym, of the name, of a
parliamentary party or a registered political party; or
(ii) matter that so nearly resembles the name, or an abbreviation or
acronym of the name ... that the matter is likely to be confused
with or mistaken for that name ...
The Act also allowed rejection of any name which resembled that of a "prominent public
body" (S 42). The registered party could, in the future, change its name or abbreviation by
application to the Commissioner (S 43).
The Act also contained procedures for de-registration: by application from the party, or
by the Commissioner if he "is satisfied on reasonable grounds" that the party has ceased to
exist, or, "not being a parliamentary party has ceased to have at least 150 members", or has
not endorsed a candidate for two consecutive elections, or if the original registration was
"obtained by fraud or misrepresentation" (Ss 44, 45) - with the proviso that a party "cannot
be de-registered ... during the election period".
GJ Crafter (Labor) (SAPD HA 1985: 4253) explained the purpose of the new section.
Registration is necessary to ensure that there is no improper or
unauthorised use of the names of established political parties by
candidates who "pirate" them and use them without authority.
Registration also relieves the Electoral Commissioner from having to
determine whether candidates have authority to use the name of a
political party or grouping. The provisions allow for a candidate who has
the consent of a registered political party or grouping to have the full
name of that party or grouping printed on the ballot paper against their
name; the provisions also allow for an unendorsed candidate to use the
word "independent" provided that it is also used with no more than six
141
11. Political Parties
other words, is not frivolous or obscene and is not the name of another
political party or grouping. This provision, however, would not exclude
the use of terms such as "independent Labor" or "independent Liberal".
The Minister added his caveat: "it is not possible to have an independent party; one is either
an independent or a member of a party".
The Liberal Opposition, through H Allison (SAPD HA 1985: 4346) criticised the
provision allowing the
potential for candidates purporting to be Independent Labor or
Independent Liberal to register and for there to be some confusion
because the names of "Liberal", "Labor" and those of other parties
would be included on polling material, with the result that candidates
who are legitimate candidates for a truly registered political Party could
be disadvantaged ... it is not a desirable feature.
G Gunn (Liberal) took up a different issue (SAPD HA 1985: 4347), and criticised the
necessity for a party to provide a copy of its constitution.
I thought that in a democracy any citizen who has reached the required
age is entitled to not only enrol but also to nominate for Parliament.
What sort of constitution are the [independent Labor] members for
Semaphore and Elizabeth going to supply? They will not be supplying a
constitution. Why is it necessary for other political parties?
Personally I find that offensive because I am of the view that any group
of people should be entitled to stand for Parliament and to organise
themselves, free from dictates, as long as they do not set out to physically
attack or annoy other people
The government moved and carried one important amendment, that the application for
registration should be accompanied by a specimen signature of the registered officer "for
verification purposes" (SAPD HA 1985: 4351).
The 1997 Act (EA 1997 No. 22) established that a registered political party must have
a registered officer, and that such officer must be an elector. If there is an absence of such
officer for a period longer than one month, or if the party has not notified a change in
identity or address of its registered officer within one month: expiation fee, $105; maximum
penalty $750.
An important justification for the innovation of registration in 1985 was provided by
the government (SAPD HA 1985: 4252-6).
It is proposed that common names and party affiliations be permitted
on the ballot paper so that the elector has as much information as possible about who
is contesting an election when casting his or her vote. The Bill provides for a
registration mechanism to allow this to happen (emphasis added).
As an intention, the clause in italics is commendable. For the highest quality of participation, a voter
should be able to obtain "as much information as possible". Simply to include registration into the
Electoral Act hardly accomplished such an aim. The name of the party on the ballot paper may have
increased, very slightly, the information available to the elector, but it accomplished little else in regard
to the quality of representation and access.
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11. Political Parties
Both the theme of the debate on the provision for registration of parties, and the debate itself,
raised a key question concerning elections - and the subsequent parliaments - in modern South
Australia. Political parties dominate both "arenas", and the two major parties dominate the party system.
The debate over the registration of parties contained elements which reveal the extent to which these
major parties seek to protect their positions, above all else.
Despite the assertion by GJ Crafter, above, there is no logical bar to the existence of an
"independent party" - in name, or in action. Equally, the assertion by H Allison that allowing "Independent
Liberal" would disadvantage the Liberal party can just as easily be reversed in meaning and effect.
Entrenched parties naturally resist any attempt by other parties or candidates to encroach "on their
patch". But this natural tendency has no relevance to the system of a representative democracy. It is
essentially a matter of self-protection for the parties. Equally, it can be argued that the discipline within
the two major parties decreases the quality of access of citizens to their representatives.
Political parties are an essential part of a modern mass democracy. But they should not use that
democracy for their own interests. Above all, they should not seek to use - in fact, misuse - the
democratic election structures and processes for party advantage. The problem, of course, is that as a
party-in-government proposes electoral policy and, generally, party-in-government is able to translate
that policy into the Electoral Act, then the question can be asked: "who is looking after the interests of
the electors?"
143
12 "One Person, One Vote, One Value"
12-1 Introduction
Democracy is translated as "rule by the people". This was applied, literally, in the Greek citystates, where every "government" decision was made by and at a meeting of all citizens.
Access to "government" and decision-making was direct and complete.
Modern democracy is representative democracy, in which "government" decisions are
made by representatives of the citizens, for the citizens. Access to "government" and
decision-making is indirect.
The interventions of structures and processes of representation between the citizens
and decision-making introduced a new definition of democracy - or, at least, required the
definition of a democratic representational system.
The keystone of this is a democratic franchise, the right of every citizen to share equally
in the election of the representatives in the legislature. From this comes the two fundamental
components of a democratic election system, which are usually condensed into the heading
of this section: "one person, one vote, one value". In fact, there are two separate principles:
"one person, one vote", and "one vote, one value", which, when attained, define the basis of
a democratic representational system.
The application of "one person, one vote, one value" establishes the greatest quality of
access within an electoral system. It guarantees that every citizen has the right to vote - to be
involved in the process of selecting his or her representatives. It guarantees that every person
has one vote and only one vote. It guarantees that every vote cast will count as one, and no
more and no less than one.
In practice, no electoral system, no matter how democratic, can offer such a complete
guarantee. As the report has noted, there are some exclusions from the right to vote. Second,
there is no absolute guarantee possible that no person has voted more than once. Methods
of checking voters’ attendance occurs after the poll has been taken. The development of new
technology may be able to produce a system where the guarantee of one vote per citizen may
be more closely approached.
Finally, except in one specific case, there can be no absolute guarantee of "one vote, one
value". A system of elections based on a single State-wide electorate is a system of absolute
"one vote, one value". But in any electoral system based on dividing a State into electorates,
the application of an absolute "one vote, one value" is impossible: population movements in
and out of electorates mean that there has to be a "tolerance" built into the system to allow
for demographic changes. However, if the "tolerance" is relatively small, and regular
distributions are held to react to such demographic change, then the principle of "one vote,
one value" can be assumed to be applied as closely as practicable.
The important point is that the principle of "one person, one vote, one value" actually
defines a democratic election system, and hence defines democratic access. Any departure
from the principle, then, is a denial of a democratic representative system, and a restriction
on the quality of access for the citizens.
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12. “One Person, One Vote, One Value”
12-2 One person, one vote
The first principle - "one person, one
vote" - contains two elements. The
right of every citizen to a vote defines
the franchise, and this has been
discussed earlier in this Report. The
second element is that each citizen
should have the right to one vote, and
one vote only. That is, an equality of
access based on the principle that,
whatever the situation of a citizen,
there are no grounds where he or she
should have more than one vote.
The principle of one person, one
vote was embedded in the Electoral
Act from the first election in 1857
(EA 1855-6 No. 10). The sections
regarding the accuracy of the rolls were
intended to ensure that a citizen had a
claim to a right to vote, and that the
claim was "protected". In the 1857
election, this "protection" was based
on a Certificate to Vote" (S 17).
Every person whose name
shall be standing on the
Electoral Roll ... shall be
entitled to obtain from the
Returning Officer ... a
certificate in the form in the
schedule to this Act ... and at
every
election
such
certificate shall be produced
to the Returning Officer ... State Electoral Office advertising at the February 2002 State
election promoted the importance of every elector’s vote.
who shall mark thereon the
day and place of voting of
the elector named therein,
and no person shall be
allowed to vote at any
election unless he shall
produce such certificate ...
Further "protection" was offered by the clause which stated (S 30) that, "if required by any
two electors entitled to vote in the same Electoral District", the Returning Officer should
put three questions to the voter, regarding identity, property qualifications, and "[h]ave you
already voted at the present election?".
145
12. “One Person, One Vote, One Value”
The two processes were a serious attempt to enforce "one person, one vote". However,
the system of a Certificate to Vote was abandoned after the 1857 election. In the new
Electoral Act (EA 1857-58 No. 12) the section was deleted, and the Act merely stated (S
17) that "[t]he electoral roll shall be the register of persons entitled to vote at any election".
The "questions" were retained, and these became a (weakened) system of achieving "one
person, one vote".
The decision to abolish the Certificate system was explained by the Returning Officer
of the Province, Sheriff Boothby, in evidence given to a Select Committee of the Legislative
Council (South Australian Parliamentary Paper 1861 No. 142). This Committee was
examining a proposal for a system of "absent voting", whereby a citizen could vote anywhere
in the Colony.
[Committee] In what way would personation result from such a system?
[Boothby] If a man could vote at any polling-place in the colony, you
must have a system of check - you must return to the certificate system,
which was unanimously condemned at the first election. It was felt to be
a great hardship on electors to have to go to the Returning Officer to get
their certificates.
[Committee] Could we not combine the certificate system with the
present system, so that a person might vote in the district where he
ordinarily resides, without a certificate; and if he were travelling, might
apply for a certificate, and vote by means of it wherever it might be most
convenient for him at the time of the election?
[Boothby] I think persons who are from home, as you describe, form
exceptional cases; and it would be impossible to legislate for such cases
without bringing about many evils.
It was clear in the debates on the Electoral Act that the members of the parliaments were
very concerned to ensure not only the accuracy of the rolls, but the means necessary to
enforce "one person, one vote".
On the basis of the concept of "one person, one vote", which assumes there is a full, adult suffrage, and
refers only to the right of every enrolled person to one vote, and one vote only, the restriction of the
franchise for the Assembly and the Council, from 1857, to males, until adult franchise was introduced
in 1894, and a restricted property franchise for the Legislative Council until 1973, was a restriction of
"one person, one vote". As noted above, this needs to be evaluated in the context of the period. Adult
male suffrage in 1857 was radical; adult female suffrage in 1894 was equally radical. South Australia was
a leader in the democratic world in the degree of "one person, one vote" that it offered, at least for the
House of Assembly.
On the other hand, while the restricted property restrictions for the Legislative Council franchise
were also relatively radical in the context of the 1850s, by the 1950s they had become archaic
restrictions on the principle of "one person, one vote", restrictions which, by then, had been abolished
elsewhere, and were retained in South Australia only because they benefited one political party.
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12. “One Person, One Vote, One Value”
The strong commitment to "one person, one vote" in the original Electoral Act did not end
debates on the issue. There were attempts to introduce a "plural vote". In 1862, a Bill was
introduced to "give an additional vote to owners of property" (SAPD HA 1862: 121),
because, although
every man should have a vote, ... if they left the whole power in the hands
of a numerical majority, as the colony progressed, as manufactures arose,
and large number of mechanics and labouring men would be
congregated together, the whole power of the State would be in their
hands, property would have no influence (SAPD HA 1862: 121).
Some members agreed that "the man who paid the most taxes should have more votes", and
denounced "this taxation without representation" (SAPD HA 1862: 256, 257). The
majority of the members were opposed, and this attempt to vary "one person, one vote" was
defeated. Hence, for all but the most conservative, the principle was accepted, and The
Advertiser (14 March 1860) summarised the views of most people about male adult suffrage
and "one person, one vote":
[it] asserts the rights, privileges and sovereignty of ‘The People’ against
the machinations of every description of cabal or faction ... rebukes all
plots, intrigues and secret workings; guarantees to the people a
government at least as enlightened and as patriotic as themselves; it is
irreconcilable with perpetuated abuses; it obviates formidable grievances;
it supersedes dangerous agitation and public panic; it is concomitant
with progress in the administration ... has faith in Humanity; recognises
a brotherhood in man.
One problem remained in relation to the Legislative Council. In 1893, the Commissioner of
Public Works drew the attention of the House of Assembly to "Clause 23" in the proposed
new Electoral Act which "provided for one-man one-vote, and gave practical effect to it".
At present, although a man had only one vote he might have his name on
two or three different rolls, and there was an opportunity for him to get
the better of the Legislature. However, to prevent any misconception on
the point the clause had been inserted. No penalties were provided in it,
but if thought necessary they could easily be attached to the clause
(SAPD HA 1893: 2756).
The Parliament agreed with the proposal, and with the necessity for a penalty (EA 1893 No.
583 S 21).
No person shall at the same time be registered as an elector on the
electoral roll of more than one electoral division, and no person shall be
entitled to vote at any election in any district or division except the
district or division in which he resides. Any person who shall vote or
attempt to vote contrary to the provisions of this section shall be liable
on summary conviction to a fine not exceeding Fifty Pounds or to
imprisonment, with or without hard labour, for a period of not more
than three months.
The Parliament clearly considered the principle of "one person, one vote" as very important.
Within the franchise provisions, there was "one person, one vote". The Electoral Act
contained no provision for an "extra vote" on property or any other grounds, and the Act
contained means of attempting to ensure that a voter did not vote more than once. The
questions put to voters in this regard have been outlined above.
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12. “One Person, One Vote, One Value”
12-3 One vote, one value
The full statement of this principle is "one person, one vote, one value". That is, full adult
suffrage, with one vote and only one vote for each citizen, and that all votes should count
equally. In the absolute interpretation, this principle has applied in South Australia only in
the elections for the Legislative Council since 1973, when the principle of full adult suffrage
was applied for the first time. In the period 1857 - 1882, the Council was also based on a
single, Colony-wide electorate, but the restricted property franchise eroded the principle of
"one person, one vote, one value" during that time.
The Constitution Act was amended (CA 1973 No. 52 S 11). The Legislative Council,
after almost a century of being based on electoral divisions (see below), was returned to an
electoral base of a single State-wide electorate.
The House of Assembly, based on electoral districts, has never achieved the absolute of "one vote, one value"
- in fact, that cannot be achieved except in a State-wide electorate. Part of the following discussion sets out
how far the various electoral systems for the Council and the Assembly diverged from the principle.
In 1975, (CA 1975 No. 122) the principle of "one vote, one value" was incorporated into
the Constitution Act for the House of Assembly for the first time. Section 77 established that
[w]henever an electoral redistribution is made, the redistribution shall be
made on the principle that the number of electors comprised in each
electoral district must not (as at the relevant date) vary from the electoral
quota by more than the permissible tolerance.
The "electoral quota" was obtained "by dividing the total number of electors for the House
of Assembly ... by the number of electoral districts", and the "permissible tolerance was "ten
per centum". This effectively established "one vote, one value", with a margin of 10 per cent
from the mean - a reasonable tolerance, given the demographics of the State.
The Premier, DA Dunstan (Labor) (SAPD HA 1975: 926) explained.
This Bill gives effect to the Government’s election mandate ... The
Government has stood for and voted for electoral reform on the basis of
one vote one value ever since the Labor party was founded. It was a
principle of the original resolution of the South Australian Legislative
Council, which preceded responsible government and which enunciated
the basis of the Constitution for election to the House of Assembly.
In fact, this was not the case. The debates in the "Hybrid Legislative Council" focussed on the question
of what level of importance should be given to "population", and the resultant electoral distributions, to
1975, were far from "one vote, one value".
Dunstan continued.
The Government believes not only that there should be a redistribution
but that the Constitution should provide that all future redistributions
shall be on this basis, and therefore that part of the Constitution will be
entrenched: that is to say, it may not be altered without a referendum of
citizens supporting the alteration ... on its passing this Parliament, the
principles for which so many of us have fought to obtain a democratic
Constitution for the people of South Australia and the State Parliament
will have been achieved.
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12. “One Person, One Vote, One Value”
The Liberal Opposition leader, D Tonkin (Liberal), raised his concern about "the
difficulties that will arise if country districts are enlarged" (SAPD HA 1975: 1107).
... any increase in the size of country districts must result in a reduction
of the standard of representation ... it will put people in the country
at a growing disadvantage ... result in a reduction in the quality of
service provided by individual members to their areas, and this is not
desirable. Consideration should be given to increasing the number of
members of the House to allow for more seats in the metropolitan area
if this will help to maintain country representation at a high standard.
He also recognised the political reality.
Obviously, the legislation will be passed; that has been made clear, so
let us be practical about it. The Labor Party has put it forward; the
L.M. has made clear that it will support it ... Therefore I support the
Bill to the second reading.
Other members of the Liberal Opposition took a different view. To R Goldsworthy
(Liberal, SAPD HA 1975: 1107 - 8),
[t]he Bill is an obvious attempt (unfortunately, a successful attempt),
by the Labor Party to entrench itself in office even though in the future
it may enjoy only minority support from the electorates throughout
South Australia ... the travesty we are debating ... some emotive
catchcry about one vote one value ... Because the A.L.P. has had a
resounding vote of no-confidence in certain areas, we must
disenfranchise those areas in some way!
In his comments on the Bill, RR Millhouse (LM) answered the criticisms by Goldsworthy
by quoting the policy of the State Liberal party (SAPD HA 1975: 1113): "that each vote
shall have an equal electoral value in determining government".
A Rodda (Liberal) continued the attack (SAPD HA 1975: 1115).
Rural people are witnessing a cruel taking away of the privileges of
representation they have had in this House for along time. I have heard
used the expression "second rate citizens"; and that is what they will
become, because they are scattered far and wide over the state, one of
the driest States in the Commonwealth, because of its geography and
... topography. They will be denied representation ... The people in the
country will be disadvantaged by this
According to M Vandepeer (Liberal),
[t]he cruel amputation of country representation being perpetrated by
this government will destroy our representation and it will make it
impossible for parliamentary members to service their electors and give
true representation to their constituents ... I stand for the rights of the
country people to retain their present representation.
Despite the strong opposition from the Liberal party, the Act was passed, and one vote
one value was entrenched.
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12. “One Person, One Vote, One Value”
The above summary of the debates on the 1975 "one vote, one value" proposal contains two important
themes which were constant throughout the period since the introduction of representative democracy
in 1857. It also contains one equally important theme which emerged in 1890, and which increasingly
dominated the debates on electoral systems in general, and on the principle of "one vote, one value" in
particular, since then: political parties, party policies and party self-interest.
From the beginning, the issue of "population as the basis of electoral distributions" was
constantly debated. The question of whether there should be factors other than "population"
taken into account when drawing electoral boundaries was a prime component of every
attempt to modify the electoral geography.
The second, related question was that of the comparative importance of "interests",
especially economic interests, and the extent to which the electoral geography should reflect
and represent them. These two issues emerged at the beginning, and were still being debated
in the 1970s.
The third theme emerged as the parties and the party system developed. The policies
and interests of the parties, especially the dominant Labor and Liberal parties, were
constantly evident in every debate on electoral distributions from 1890.
The "one vote, one value" debate began in the 1850s, and continued for 150 years. This debate had two
themes. One was a matter of democratic electoral principle – the application of numbers of electors as
the sole basis for electoral geography. The second was a matter of party self-interest – some saw the
principle as inimical to their hopes of electoral success. In the 1970s, the issue was resolved for both
houses in the Electoral and Constitution Acts.
150
13 Electoral Apportionment and Electoral Boundaries
13-1 Introduction
This section of the report is long and detailed. This is justified for three reasons. First, the principle of
"one vote, one value" was denied in the first electoral apportionment in 1857, and in every redistribution
which passed the parliament for the following 120 years. The constant rejection of this basic democratic
principle merits full analysis - of the extent to which "one vote, one value" was denied to the voters of
the Colony and State, and of the reasons put forward to "justify" the malapportionment in the electoral
system for the Assembly from 1857 to 1975, and for the Council from 1882 to 1973. The fact that it was
not until the 1970s that the principle was accepted merits exploration.
Second, the questions of electoral boundaries and apportionment were the most constant topics
debated in the South Australian parliament over the period of 145 years. There was hardly a session of
the parliament held without the topics being raised. Why the members were so interested merits
exploration.
Third, from 1910, these debates were dominated, not by the principles of representation, but by a
constant theme of party self-interest and party representation. This is an important theme, as it indicates
the extent to which political parties have rested their stances on many issues of democratic
representation not on what is best for the citizens, but on what is party opportunism.
The nature of the electoral geography of South Australia was a major issue in political
debates from 1856, when the first electoral boundaries were designed. In 1975, the
establishment of an independent Electoral Boundaries Commission effectively removed the
power of the Parliament and of its members, and especially of the power of political parties,
to directly affect distributions; it effectively removed politics and party politics from
controlling the process, although they can still make submissions and contribute to the
debate. Prior to this, the question of electoral boundaries was constantly debated, and was
intensely political, and after 1890, party political to the extreme.
This issue is a central component of "one vote, one value" - an equality of voting power
for all citizens. If applied, then any apportionment of the State into electorates would be
based exclusively on equal - enrolment electorates, or an equal ratio of enrolments to
members in the case of multi-member electorates. For the history of the House of Assembly
from 1857 to 1975, this was far from achieved - in fact, it was far from the intentions of the
majority of the planners of electoral geography. For the history of the Legislative Council
from 1882 to 1973, it was a matter of severe and, from 1890, severe and partisan
malapportionment, much more severe than for the House of Assembly.
13-2 The first electoral boundaries
The Legislative Council to be elected under the terms of the 1855-56 Constitution Act was,
in terms of population and enrolments, guaranteed to reflect the principle of "one vote one
value" - there was a single Colony-wide electorate. The restricted property franchise was a
severe restriction of the principle of "one person, one vote", which remained for 120 years.
The House of Assembly, established by the Constitution Act, contained 36 members.
In 1856, while waiting for the Constitution Act to be given Royal Assent, the members of
the "Hybrid Legislative Council" decided to prepare for the first full election by establishing
the new boundaries, which were incorporated in the Electoral Act (EA 1855-6 No. 10).
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13. Electoral Apportionment and Electoral Boundaries
In 1855, the "government" had proposed 21 electoral districts for the Assembly, "some
returning more than one member, but ranging from 4 500 to 250 persons per member. The
Council substituted seventeen electorates with representation ranging from 3 000 to 900"
(Pike 1957: 479).
The Council also established a Select Committee to further develop the electoral
geography. The Committee reported to the Council on 4 March 1856 that it had established
three principles: that the distribution should be based on population numbers; that the
boundaries should be changed by the parliament when population distribution became
unbalanced; and that each electoral district for the new Parliament should return at least two
members (Fort 2001: 19).
The third principle proved impractical. Some "suburbs" of Adelaide, and certainly
some rural communities - notably in the electorates of Victoria in the southeast, The Murray
and Flinders in the north - had populations well short of the number which would be
required to return even one member under any plan based on "population", which also
satisfied the other criteria. Hence the final distribution incorporated into the Act was based
on seventeen electoral districts with a varied membership. The distribution included the
district of Adelaide with six members, The Burra and Clare with three, Murray and Victoria
with one member each, and the remaining 12 districts with two members.
On the basis of population per member, this distribution was far from equal. The final
proposal had appeared to interpret the phrase "based on population numbers" as something
different to an equality of voting power, certainly something very different to "one vote,
one value".
The ratios varied from 926 persons per member in the northern, rural electorate of
Flinders to 3 093 persons per member in the City of Adelaide. The ratios of adult males per
member varied from 440 in the electorate of The Murray to 788 in Adelaide (Fort 2001:
19). By the time of the election, on the basis of enrolment per member, the disparities had
become extreme: when the ratio of voters to member in the electorate of Sturt in the
metropolitan area was taken as the mean of 100, then the ratios varied from 147 in Yatala
to only 26 in The Murray. Pike (479) points out: "[t]hough far from making equal electoral
districts this was at least an honest attempt to represent population rather than acres".
13-3 Representation of interests
The concept of "interest" needs clarification. It involved, in the sense of the debates about
the South Australian electoral system, a re-definition of representation, and of "access".
A democratic system is based on the axiom of an individual citizen having a full right
to decide who should be his or her representative(s). The overlay of "one person, one vote,
one value" adds a further key principle, that access should not only be as full as possible, but
as equal as possible.
The addition of "representation of interests" involved a different concept of access.
The word "interests" referred, not to individual citizens, and their interests, but to sectors of
the economy, and "their interests", and to the quantity and quality of the access which they
should be granted. The "interests" which were constantly referred to in the debates
concerning the electoral geography of the House of Assembly were commercial, trading,
manufacturing, agricultural and pastoral. These were considered in terms of the "quantity"
of access each should receive.
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13. Electoral Apportionment and Electoral Boundaries
Similar emphases were evident in the debates about the Legislative Council, but the
over-riding theme in regard to the upper house was based on the "interest" of "property".
The original distribution on which the new Parliament was elected in 1857 entrenched
a principle which dominated the electoral geography of the Assembly for more than a
century. As Pike (1957: 479) put it, in the original distribution for the 1857 election,
"[p]roductive interests" were consoled by the observation that the
scheme would give eight seats to urban commerce, three to mining, three
to rural commerce, three to woolgrowing and nineteen to agriculture.
The principle of representation of such interests was a key factor from the beginning
although, by the turn of the century, and certainly by the establishment of a party system in
1910, the representation of interests became increasingly a matter of two - city and country.
Further, from 1910, it became a matter of the "interests" of the two major parties, Labor
and Liberal.
To clarify the references to parties in the following, it is necessary to establish which
were important to the debates on electoral systems. The Labor party has had a continuous
history since 1890. The Liberal party has undergone a number of changes of name. The
initial non-Labor party, the National Defence League of 1893, became the Australian
National League, then the Liberal Union in 1910. It took the name Liberal party at the time
of the formation of the Country party in the 1920s. In 1932, these two parties amalgamated
into the Liberal and Country League. The re-formation of a separate Country party was
followed by a change of name back to Liberal in 1976. Finally, a faction of the Liberal party,
the Liberal Movement, became a separate party in 1976. For the following discussion, the
label "Liberal" is used as a generic name.
From the first election in 1857, the question of electoral boundaries focussed inevitably
on three major points of contention: the question of the conflict between the representation
of population and interests; the rights of minorities; and the voting power which should be
granted to rural areas.
One study of electoral districting concluded that, for the colonial period, there were five
meanings used in the debates and the Acts of the term "population as the basis of
representation" (Stephenson 1952: 169).
- [T]hat "population alone" was the basis, no other matter being even
considered
- that "population alone" was the basis, community of interest and
locality being considered where they did not conflict with numbers
- that population was the most important but not over-riding
consideration
- that all other things being equal, the division aimed at equal numbers
- that the division aimed at giving equal political representation to the
local interests of the different geographical districts, using numbers as
a gauge to measure whether the particular group interests were large
enough to merit separate representation.
While each of these meanings can be found, with more or less emphasis, in the various
debates on redistribution proposals, the over-riding theme in the period to 1975, especially
in the twentieth century, focussed on an over-representation of rural areas at the expense of
the urban areas, and especially of Adelaide. The colonial debates set the theme which was to
be a constant: the necessity to grant a numerical over-representation to the less populated
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13. Electoral Apportionment and Electoral Boundaries
areas as "representation on the basis of population is undesirable, as it gives undue voting
power to centres of population" (Report of a Select Committee on Electoral Systems, South
Australian Parliamentary Paper 1879, No. 148). The many attempts to redistribute the
electorates, and the subsequent Acts, all showed this basic theme of the diluting of "one vote,
one value".
The remainder of this section focuses on the redistribution proposals which were
carried into Acts. Only a minority of the many attempts in the case of the House of
Assembly were.
In summary, the original distribution for the Legislative Council as a fully-elective bicameral chamber was a single, State-wide electorate, electing 18 members. This system
remained until an amendment to the Constitution Act in 1881, when an enlarged House of
24 members was elected by four six-member districts. In 1901, the Council was reduced
again to 18 members, elected by one six-member and three four-member districts. In 1913,
the Council was again enlarged - to 20 members - elected from five districts of four members.
This basic structure, with minor amendments to the boundaries on occasions to comply with
redistributions of the House of Assembly, was retained for the next 60 years, until the return
to a single State-wide electorate in 1973.
A summary of the history of the electoral geography of the House of Assembly is more
complex. In the colonial period, following the 1857 election, there were 14 attempts to
introduce a full redistribution of the electorates: three were successful - 1861, 1872 and
1882. Major redistributions were also carried out in 1901, 1913, 1929, 1937, 1955, and
1969. In 1975, the Electoral Districts Boundaries Commission was established, and the
question of redistribution was effectively taken out of the hands of the members of
Parliament. In 1932, the government considered various proposals for redistribution, but did
not proceed. In 1962, an Electoral Districts Redivision Act was carried through the
parliament, and an Electoral Commission reported with a full redistribution. However, the
Government failed to achieve the necessary constitutional majority in the House of Assembly
and the redistribution Bill lapsed.
Since 1975, when the first redistribution by the Electoral Districts Boundaries
Commission came into force, there have been redistributions in 1983 and 1991, and since
then - as required by the Act - after each election, in 1994, 1998, and 2002.
As well as these major redistributions which, until 1975, were all politically
controversial, there have been minor changes to the Assembly electoral geography. In 1888,
the Northern Territory became a self-contained two-member electorate, with no change to
the other 26. Very minor changes were carried out to the boundaries of the electorates of
Light and Albert in 1889, and to the boundaries of Onkaparinga and Albert in 1893. The
only minor change to the boundaries for the Legislative Council was the incorporation of the
Northern Territory into the Council division of Northern in 1888.
The process of redistribution, from the initial process in 1856 to the establishment of
the Electoral Districts Boundaries Commission in 1975, involved ad hoc committees
established for the purpose. These were originally committees of the parliament, but they
were later modified to ad hoc non-parliamentary committees. The 1929 Electoral Act (EA
1929 No. 1914 S 3) provided that future distributions would be made by a three-member
Electoral Commission. This "shall be deemed to be a Royal Commission". Such a change
was a significant improvement, in that the body which would make any redistribution would
be independent, and free from partisan influence.
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13. Electoral Apportionment and Electoral Boundaries
The proposal for an independent Commission was marred by the Government’s announcement that the
terms of reference set would bind the Commission to a severe malapportionment in favour of rural
areas. That is, the Commission was bound to implement the policy of a party. This was a severe
limitation on the Commission, and was the imposition of partisan politics into the redistribution process.
The remainder of this section analyses the various redistributions, and examines the bases,
and the arguments put forward. The reports of the Bills, Acts and the debates are provided in
considerable detail. This is justified because the matters were deeply controversial, because the
issue of apportionment was a constant theme, from 1857 to 1975, and because party self-interest
became the deciding component, with the effect of eroding the application of the basic principle of
"one vote, one value".
It is also justified as apportionment is a key component of access. A malapportioned system is a
denial of equality of access. As all systems from 1857 to 1975 were malapportioned, the reasons need
to be explored in detail. Third, the debates on distribution Bills were longer, more intense, and raised
more substantive issues of access than did any other issue.
13-4 Legislative Council redistributions
From its inception in 1857, until 1973, the Legislative Council was elected on the basis of a restricted
franchise, based on a "principle" of the necessity for the "representation of property". From 1882 to 1975,
the geometry of the electoral system of the Council also incorporated the "principle" that rural property
should be paramount. The intransigence of the conservatives in the "Hybrid Council" to resist any
proposal for "one vote, one value" was maintained, even hardened, in the half-century of colonial
responsible government, and even more strongly maintained after the formation of the Liberal party.
Even in the decade of the 1890s, when a short-lived progressive majority in the Legislative Council
allowed a series of social and industrial reform Bills to pass, this liberality did not extend to any
modification to, especially any weakening of, the basic electoral props of a restricted franchise and
severe rural malapportionment.
Although the single, Colony-wide electorate for the Council, from 1857 to 1882, guaranteed
"one vote, one value", the demography of the Colony in 1857, coupled with the property
restriction, provided an electoral system with a majority of potential voters in the rural area.
This combination actually provided a significant defence for the conservatives in the
Legislative Council and their supporters against the majoritarian democracy built into the
Assembly. It enabled the rural property owners to have and to exercise a numerical advantage
over the metropolitan area and voters. This over-representation of rural property was,
however, dependant for its effectiveness on the existing population structure remaining
relatively stable. It was valid only so long as the embryonic metropolitan area around Adelaide
remained proportionally small.
In the early years, it was an advantage. The data below show the metropolitan / country
ratio of enrolments for the Council during this early period of a single electorate.
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13. Electoral Apportionment and Electoral Boundaries
Date
1857
1860
1865
1870
1875
1881
Legislative Council Enrolments (%)
Metropolitan
Country
47
38
34
35
30
38
53
62
66
65
70
62
By 1881, there was a feeling in the Council that the growth of the metropolitan area was
eroding this country advantage. In that year (CA 1881 No. 236), as previously mentioned,
the Council was enlarged to 24 members, and the single, State-wide electorate was changed
to a system of four, six-member electorates, with the boundaries based on existing Assembly
electorates.
The government, through the Commissioner of Public Works, JG Ramsay, stated that
while
the framers of the Constitution Act had drawn up a scheme which was
admirably adapted to the requirements of a young country, but we had
out-grown some of our old requirements .. the system of the whole
country voting as one constituency was highly inconvenient ... (SAPD
HA 1881: 284).
One component of the "old requirements" had been nicely summarised by The Register in
1855 (31 August) when it supported the single electorate system.
[I]f there existed at the time of the election such a popular feeling on
some particular topic as would carry men into the Council for the
advocacy of that topic, the same result would follow, whether this
popular enthusiasm expressed itself in one or in many constituencies.
By 1881, it had a different view: "it is virtually impossible that more than a very small
proportion of those who are on the Council roll can know anything about the candidates
seeking their suffrage" (10 February).
This may have been the "inconvenient" component. Many of the members of the
Council disagreed. The proposal for divisions was described as "an absurdity", "crude and
ill-digested", and "utterly unworkable" (SAPD LC 1881, respectively AB Murray (286), RC
Baker (288), A Campbell (347)). The leader of the conservatives, RC Baker (SAPD LC
1881: 289),
considered the introduction of the local element into the Council most
undesirable. It was one of the proudest things that a member of the
Council could say that he was elected by the whole colony, and not by a
particular district of it.
Despite this reaction, the Bill passed the second reading "without a dissentient voice".
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13. Electoral Apportionment and Electoral Boundaries
In the Committee stage, it was clear that most members were more concerned to retain
the dominant position of the country areas in the electoral system than they were to retain
the single-electorate.
Ramsay explained that
[h]e had himself been in favour of four districts, but a great difficulty
rose in consequence of the great disparity of numbers in such districts.
If there were only four districts there would be the same difficulty about
the expense and impracticability of candidates meeting the electors as
occurred under the present system, except that it would be in a somewhat
modified form. After some deliberation the Sheriff [Boothby] had been
asked to draw up a scheme for the division of the colony into six
electoral districts ...
The total number of the members of the Council would be twenty four.
That would keep up a fair proportion in comparison with the members
of the Assembly. It would prevent some six or seven people from having
the destinies of the colony in their hands (SAPD LC 1881: 283).
Not all of the members of the Council agreed with this proposal. AB Murray, for example,
thought that the provision of six districts was a great absurdity ... the
division of the Colony into districts would tend to produce to a certain
extent logrolling, and that legislation would be sought to be brought in
favour of certain parts of the colony in a manner that should not take
place in that House (SAPD LC 1881: 285).
J Pearce, on the other hand (SAPD LC 1881: 285-6), felt that
if there was anything that had been universally demanded during the past
two or three years it was the division of the electorate for the Council
into districts ... if the city was joined with any distant part of the colony
a district would be created which would be unworkable, while in addition
the representative would be unable to go to the outlying parts to consult
the wishes of the voters.
RC Baker (SAPD LC 1881: 290) felt strongly about the proposal.
[H]e knew from his experience in the Assembly that, even without
logrolling, members frequently felt compelled to support the
construction of works required by their districts [electors], respecting
which personally they scarcely felt that the expenditure was justifiable as
regards the interests of the whole colony.
This Act entrenched the malapportionment in favour of country voters which remained, and
was even strengthened, in the period until 1973.
For the twenty years after 1881, until the Council was re-structured after Federation,
the metropolitan voters were severely under-represented.
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13. Electoral Apportionment and Electoral Boundaries
Apportionment, Legislative Council, 1881 - 1901 (% of total)
Division
1881: Population
Adult Males
1882: Enrolment
1901: Population
Adults
Enrolment
Central
Southern
Northeast
Northern
29.8
29.8
28.7
33.7
34.5
33.5
22.9
20.6
22.4
23.7
23.7
26.6
24.5
20.5
23.1
17.2
16.4
15.4
22.5
28.8
25.8
25.1
25.3
24.8
The new structure embedded a malapportionment against the urban, and especially the
metropolitan property holders.
In 1901 (CA 1901 No. 779) the Legislative Council was reduced from 24 to 18
members, elected by four districts. The city returned six members, and each of the rural
divisions - Southern, North-Eastern and Northern, four members. A parallel redistribution
of the Assembly districts had also decreased the House from 54 to 42 members (see below).
The ratio of metropolitan: country members in the Council became 6:12, thus
increasing slightly the 4:12 ratio in the 1881 Act. This, at first sight, seems to indicate a
weakening of the commitment to rural over-representation. However, as the AttorneyGeneral stated in moving the second reading in the Council (SAPD LC 1901: 288-9):
He did not know whether the rough-and-ready method of defining city and
country members had any constitutional value at all, because many of the
city members represented the country as much as the city, and vice versa.
He provided figures of enrolments for the Council electorates which emphasised the lack of
any intention of including a principle of one vote one value. The city electorate would have
3814 voters for each member, while the equivalent figures for the country electorates were
Southern, 2457, North-Eastern 2210, and Northern 2611. RS Guthrie (Labor) described
this apportionment as "the country would be most unfairly represented".
There was absolutely no system in such an arrangement, and as a
representative of the Central district he protested against the wholesale
disenfranchisement of the electors in his district. The vote of a
blacksmith in the Southern district would be worth double that of one
in the Central district ... They were there to represent human beings, and
not sticks and stones (SAPD LC 1901: 349).
AA Kirkpatrick (Labor) announced that "[h]e was going to bow to the inevitable, because
he could not suggest anything of which any notice would be taken" (SAPD LC 1901: 350).
His assessment was correct, as the majority of members of the Council agreed with JL
Parsons that "the question was whether they were contemplating or desirous of having
representation on the basis of population. He wanted to consider population and property"
(SAPD LC 1901: 352).
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13. Electoral Apportionment and Electoral Boundaries
The 1913 redistribution (CA 1913 No. 1148) set the structure of the electoral geography
of the Legislative Council for the following 60 years. It was modified only to take account of
Assembly redistributions. The Act established a membership of the Council of 20, elected by
five, four-member districts. The city of Adelaide was divided into two districts (Central No.1,
Central No. 2), and there were three country districts - Southern, Midland and Northern.
The Chief Secretary (JG Bice, Liberal) put the case for the government (SAPD LC
1913: 319), but focussed almost entirely on the Assembly redistribution. The ensuing debate
in both Houses also virtually ignored the Council boundaries, with the one component of
interest being the division of the city of Adelaide into two electorates.
The increase in population in the Central District justly demanded
further representation; so the Government proposed to give it two more
members. Complaint had been made against dividing the district, but
what an extraordinary position would be created if the central District
were to have eight members returned by the one district. To meet the
case, and to meet it fairly, the Bill provided for dividing that district into
two, giving each four members, and so bringing it into line with all the
other Legislative Council districts within the State.
The "bringing it into line" did not relate to any sense of an equality of access and "one vote,
one value". The following table sets out the data for enrolments at the 1902, 1912 and 1918
elections in terms of enrolment per member.
District
1902
Central
3 844
Northeast
Northern
Southern
2 243
2 578
2 393
Election
1912
1918
7062
2 740
2 646
2 569
Central No. 1 7 245
Central No. 2 5 743
Midland 1 948
2 325
2 542
There was no evidence of any commitment to equality.
The subsequent redistributions of the Legislative Council boundaries, prior to the reintroduction of a single, State-wide electorate, were carried out in 1936, 1955 and 1969.
Each was based on the structure established in 1913; any minor changes were a result of the
redistributions of House of Assembly electorates.
Overall, from the inauguration of representative democracy in 1857, to the first application of "one
person, one vote, one value" for both houses in the 1970s, there were very severe limitations built into
the various electoral systems. The restricted property franchise denied even the right to vote to a
substantial proportion of the citizens of the colony and the State. Access was quite simply denied to
them. And when considering that this denial was maintained until the 1970s, then there was a serious
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13. Electoral Apportionment and Electoral Boundaries
flaw, even in the electoral system. It was, quite simply, not democratic. Where "one vote, one value" is
denied, and especially when it is denied to the extent it was in the Legislative Council, there is hardly
present any acceptable avenue of access.
13-5 House of Assembly redistributions
The original distribution for the Assembly was established by a Select Committee of the
"Hybrid Council" (South Australian Parliamentary Paper 1856 No. 121), and its report not
only drew the boundaries, but also established one theme which was to occupy the
subsequent Assembly members for 120 years. As this was the first electoral distribution, the
Report of the Select Committee is presented in some detail.
The report opened with the statement:
Your Committee have to state, that, in preparing their report, they have
been guided by the principle which they understood was generally
approved by the Council, viz., that the division of the Colony into
Electoral Districts should, as far as practicable, be based on population.
The content of this statement was repeated for more than a century, essentially with a focus
on the meaning of the phrase "as far as practicable". From 1856 to 1975, the word
"practicable", although rarely used in the debates, was the focus of division between members
and political parties whenever the topic of apportionment was raised.
The first qualification of "population" came in the 1856 Report.
Had your Committee acted strictly on the principle of proportioning
representation to population, the City of Adelaide is entitled to seven
members [of 36 members]; but, on mature consideration, it appeared to
your Committee that the inhabitants of the City - being the seat of the
Legislature, as well as the residence of a great majority of the
representatives - would always have a fair proportionate weight in the
Legislature, though not possessing the precise number of members to
which its population theoretically entitles it ... your Committee would
observe, that, while abandoning the attempt rigidly to carry out the
principle of apportioning representation to population, the practical
working of the scheme they recommend in no case varies from the
theoretical number more than 55 per cent (SAPP 1856 No. 121).
This was apparently considered to be a "reasonable tolerance".
The justification for the under-representation of "the City" - that it had an
adequate representation anyway - was never referred to again in subsequent debates. The
under-representation of the metropolitan area established in 1856 was a key feature of
every succeeding redistribution until the parallel establishment of the independent
Electoral District Boundaries Commission and the entrenchment of "one vote, one
value" in the 1970s.
The first redistribution in 1861 (EA 1861 No. 20) established what some of the
planners had wanted originally - an Assembly elected from electorates each with the same
number of members. The Act divided the colony into eighteen two-member electorates.
A Blyth moved the second reading on behalf of the Government (SAPD HA 1861: 651).
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13. Electoral Apportionment and Electoral Boundaries
He reminded the House
that in the latter part of last session he had moved for a Committee to
prepare a Bill such as that which was now before them, and this measure
was the result of the labour of that Committee. The Committee had
found on inquiry that if the old Act was not rearranged the result would
be the almost total disenfranchisement of many electors at any future
election ...
Some very interesting statistics had been collected and furnished by Mr
Josiah Boothby to the Committee, and from them some very
extraordinary facts were brought out ... for instance, to know that the
number of adult males in the city was so small; and this was also
satisfactory, inasmuch as it proved that the population in the producing
districts had so far increased.
He outlined the principles behind the redistribution.
The mode purposed of distributing the seats, was by the number of
electors in the district, and he found that the city was not entitled to so
many members as it had. By reference to the tables it appeared that one
member was allotted to every 834 electors, and the city certainly fell
short of the number which should entitle them to return six members ...
four members had been allotted to the city.
The majority of the speakers on the Bill agreed with the reduction of representation of the
city. The Attorney-General (SAPD HA 1861: 656), while agreeing that there may be a case
for dealing with "over-representation" in the city, felt that
there were many other districts in the same position, and others again
which were not adequately represented. It would have been better if,
instead of making the Bill appear as a direct attack upon the City of
Adelaide, the Committee had proposed a re-arrangement of all the
districts where inequality existed.
EL Grundy (SAPD HA 1861: 655) commented: "In reference to population, it seemed to
be forgotten that was a fluctuating affair, and should be considered accordingly".
In the Council, the Chief Secretary stated that "the leading principle of the measure
was to create equal electoral districts, and to give to the electors equal powers of voting"
(SAPD 1861: 1174). Recognising the power of the Legislative Council, the Chief Secretary
told the House
[h]e ... trusted that hon. members would touch the schedule as little as
possible, as they might by alteration shake some hon. members of the
other House in their seats, and so prevent the possibility of the Bill being
passed this session.
To JH Barrow (SAPD LC 1861: 1176)
[t]hey were told that these schedules had all been rearranged upon the
basis of population and equality of representation, and he was willing to
believe that they were altered upon some ideal standard as to population
but he could not form any idea as to the mode in which the rearrangement
had been made ... He could not judge accurately on what principle the
schedule had been altered, and therefore he must take it on trust.
The data on enrolments following the redistribution seemed to support his view.
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13. Electoral Apportionment and Electoral Boundaries
1861 Redistribution: Enrolments at the 1862 election (Each electorate two members)
East Adelaide
West Adelaide
Port Adelaide
West Torrens
East Torrens
Sturt
Yatala
1 756
2 000
1 072
1 118
1 494
998
1 142
Gumeracha
Noarlunga
Mt Barker
Onkaparinga
1 201
1 165
1 850
1 820
Encounter Bay
Barossa
Light
Stanley
Burra
Victoria
Flinders
1 007
1 453
1 809
1 361
1 695
931
595
The Chief Secretary’s assertions of "equal election districts" and "equal powers of voting"
were hardly evident in these data. The debate on the Bill which established the new electoral
geography included very few comments about the proposal. It was, first of all, a
consolidating Act, whereas most of the subsequent redistributions were in relatively "singleissue" Acts. Further, the 1861 Bill also included a proposal for voting through post offices
(see above), and this occupied most of the time of most members. The redistribution was
passed with virtually no debate.
The next redistribution was carried out in 1872 (EA 1872 No. 27), parallel with an
increase of the membership of the House of Assembly from 36 to 46. The new distribution
was proposed by a Select Committee of the House of Assembly which had recommended
two-member electorates, based largely on the boundaries of district councils (SAPP 1872
No. 95). The final plan devised by the parliament, after a long and detailed debate, reverted
to unequal members, and was based on three electorates electing three members (Wallaroo,
Light, Flinders), one single-member electorate in North Adelaide, and the remaining 18
districts with two members each.
One section of the debate on the proposal showed the difficulties of such issues before
the assistance of modern technology. HE Bright expressed concern with the process (SAPD
HA 1872: 823).
[H]e must call attention to the map on the wall of the House purporting
to show the new divisions, as well as the schedule contained in the
present Bill, the more especially because on the previous day the Hon. the
Attorney General had told them that the map was in accordance with the
report of the Select Committee on this subject. To that report he would
call attention. In clause 4 they said - "Out of the several plans which
your Committee have caused to be prepared they select one (which they
present herewith) dividing the Province into 21 districts ... Now, he
might tell the House that, in relation to the district with which he was
connected, the divisions were not prepared on the map in accordance
with the report of that Committee ... the Surveyor General was called in
and assisted the Committee in revising the map. That might have been
the reason why the map did not agree with the reported proceedings of
the Committee.
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13. Electoral Apportionment and Electoral Boundaries
WAE West agreed (SAPD HA 1872: 824), but also raised a perennial question of
"population and area".
The divisions marked [on the map] were arbitrary, and did not follow
the natural features of the country, and some districts seemed to have no
more area than about a section of land, whilst others, as Flinders, were
as large as England and Ireland put together. He thought some of the
smaller districts might be "boxed up" so to speak. Noarlunga and the
Sturt ... were no doubt represented ably, but it was a question whether
some of the larger districts did not suffer by the share of representation
given to the small ones. This had been shown, in fact, already in reference
to the Port District, which included the Wallaroo country
The request for a new map to be prepared was rejected by the Government. A Blyth made
the point strongly: it
would lead to a great deal of expense, and that should be avoided. If the
House wished for further information he hoped they would appoint
another Select Committee ... There had been a great deal of labour and
trouble bestowed on the matter by the Committee, by several successive
Governments, and by Government officers, and after all it had been
found, what would still be the case, that it was impossible to make out a
plan of divisions that would please everyone.
Commissioner of Crown Lands T Reynolds agreed (SAPD HA 1872: 826)
with the plans before The House hon. members should be satisfied ... If,
as had been suggested, another Select Committee was appointed he
hoped he might not be placed on it. Two Select Committees had failed,
and if a third were appointed nothing better could be expected of it.
The debates on the details of the proposal included numerous references to representation
of interests. For example, to HK Hughes (SAPD HA 1872: 1130),
[n]ow, it had been stated publicly, and he believed it would not be denied,
that the mineral interest had never yet been fairly represented ... but he
would point out that the Bill before the house would put the mining
interest on even a worse footing than it had been hitherto, for up till this
time it might be considered to have been represented by two members,
which was one-eighteenth of 36, but under this Bill they would only
constitute a twenty-first part ... It was scarcely necessary to point out the
value of the mineral interest to the province - it was a matter of history
that the discovery of the Peninsula saved the Colony at the time of the
greatest possible depression, and at the present moment the exports of
copper were of immense value to the province, and were also attracting
a large increase to the population of the Peninsula.
JM Solomon (SAPD HA 1872: 1132) disagreed.
If they came to the conclusion, which he considered the only just and
constitutional one, that the representation should be based upon the
principle of the number of voters resident in any one district, then he
could understand that the hon. member who had just sat down had a
very fair and good claim for additional representation for his district,
apart entirely from the fact of what its productions were.
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13. Electoral Apportionment and Electoral Boundaries
He was aware that some members held the notion that numbers situated
in close proximity should not be treated in the same way as in districts
where they were spread over a greater surface. He did not believe in that
principle, inasmuch as under universal suffrage every male adult should
have the means given to him of exercising his full amount of power...
He did not see either that certain interests should be studied when
under constitutional government the basis of representation was the
number of voters.
This, in itself, raises two important points about the parliaments and governments of this period. First,
they were not party governments, but consisted of shifting, personal alliances, which were just as often,
short-lived. As a result, even on measures such as redistributions, there was no "government line", let
alone a party line. Individual members could argue "on principles", and attempt to convince their
colleagues. As well, and this was a feature of the pre-party period, the individual members could, and
did argue from self-interest – based on their own electoral position and their own electoral boundary,
and of the "interest" (especially rural versus urban) they represented. Party interest was all-pervasive in
such debates after the 1890s; self-interest dominated before that.
Second, unlike the redistribution proposals which were made after the party system had become
established, where the changes were carried out under clear terms of reference, the colonial
redistributions were a matter of the Parliament to decide, using a Committee report as a starting point.
Treasurer JH Barrow provided an example of both with his comment.
As to the arrangement of the districts, hon. members must particularly
understand that the Government did not bind themselves to that. The
arrangement in the Bill was made on the recommendation of the Select
Committee, and he would say for himself that when he saw Mr
Boothby’s report upon it he was surprised at the unequal distribution of
population in the proposed districts. He did not blame the Committee,
who perhaps had a reason for it; but to him the districts as they were
mapped out appeared indefensible and undesirable if they were to go on
the basis of population. The government were perfectly willing to let the
schedule be amended in Committee, and to let it rest with hon. members
and their constituencies what the divisions of the districts should be.
This commitment to parliamentary decision-making, and an emphasis on the views and votes of
individual members of parliament, was a far cry from the party policy and party discipline which decided
such issues after 1910 (see below). But the view of both members - essentially expressing the principle
of "one vote, one value" - was, and remained for some time, a very minority view.
J Pearce (SAPD HA 1872: 1133, 1135), for example, spoke for the majority when he
supported a "principle of balance". He was concerned that the "House would make
population the basis of representation" where other matters had to be considered - "identity
of interest and density of population".
In a new country like this they could not confine themselves to
population alone - (hear, hear) - but must consider identity of interests
and the condensation of interests in city and town. He did not agree that
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13. Electoral Apportionment and Electoral Boundaries
they should have the same number of members for a certain population
in town as if it was distributed over 150 miles of country.
JJ Duncan summarised (SAPD HA 1872: 1220) the majority viewpoint.
In the rearrangement of the districts it would be admitted that
population was a fair guide. On that basis his district would fairly take
its stand, and as a representative of a small minority in the colony - the
mining interest - he should watch very jealously that it got the share of
representation that it was entitled to. It was not necessary as regarded
agricultural districts that they should stick to the exact number, and
there it would not be wise, perhaps, to interfere with existing
geographical boundaries. In the centres of population, population and
population alone should form our guide.
The ensuing distribution reflected not only a bias against the population centre of Adelaide
and its suburban developments, but a bias against one large country urban centre - the mining
electorate of Wallaroo.
1872 redistribution, 1875 enrolment (per member)
East Adelaide
West Adelaide
North Adelaide
Port Adelaide
West Torrens
East Torrens
Sturt
791
845
778
830
681
922
495
Mt Barker
Onkaparinga
Barossa
Encounter Bay
Light
Victoria
Albert
Stanley
Wooroora
Flinders
Gumeracha
630
657
892
500
796
749
616
935
827
493
675
Wallaroo
1 381
In 1882, both Houses were transformed. The Act (CA, EA 1882 No. 278) was a
"portmanteau" Act as the proposed changes required amendment of both the Electoral and
the Constitution Acts. The Assembly membership was increased to 52, elected from 26 twomember districts. An Electoral Commission established by the Parliament recommended a
set of boundary proposals.
The Bill was presented by Attorney-General JW Downer (SAPD HA 1882: 422 -3).
... for a long time complaints had been made as to the insufficient
representation of certain districts and the over-representation of others.
Select Committees had been appointed from time to time to report on
the subject - one as long ago as 1870 - and various suggestions had been
made, but up to the present time the districts stood substantially as they
did twelve or thirteen years ago...
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13. Electoral Apportionment and Electoral Boundaries
The Government then thought it would be well to have a Royal
Commission to inquire into the subject, the members of which were to
include representatives of the northern districts not sufficiently
represented, some from the southern districts, supposed to be overrepresented, and some from nearer town to form a moderating element
between the others.
This Commission was unanimous in its report, recommending 26 two-member electorates.
At the same time,
[t]hey also agreed that population alone should not be the basis of
representation - just as a previous Commission had agreed - and they had
evidently also been influenced by the feeling that it was better to get what
was obtainable than to aim at a more perfect theoretical distribution of
seats that would never be agreed to by Parliament. The Commission said
- first, that certain parts of the Colony were undoubtedly insufficiently
represented; and, secondly, that in the present changing condition of
affairs it was not expedient to make any radical change in the way of
reducing the representation of the older districts ... The Commission had
before them the labours of the Commissions which had sat in 1870 and
in 1879, which came to the same conclusion ...
The Government had adopted the views of the Electoral Districts
Commission altogether ... it was the Government’s duty to provide for
over-representation as well as under-representation, and that they should
always try for that which is the absolute good, believing it better to do
so and get nothing than try for the next-best thing and get something...
The Government thought it was better, under the circumstances, to make
it their principal aim to give those districts insufficiently represented
adequate representation, and that in view of the great public works being
carried out, and the alteration of the population in different parts of the
Colony, it was unnecessary now to make any more districts.
LL Furner (SAPD HA 1882: 425) brought the attention of the House to the importance
of "interests" in relation to "population".
The districts thus made would be proportionate in size and equal in
population. The interest [mining] to be represented by these districts was
one of much importance, and it would be policy for the House to
consider the advisability of increasing its representation.
As did WH Beaglehole (SAPD HA 1881: 481-2), who also brought into the open the
"juggling" which occurred in the colonial period - before political parties.
The farming and pastoral interests were well represented in the house,
and he thought, taking into consideration the importance of the mining
interest to the colony, that it should be more largely represented than was
provided for under the bill. But the mining interest seemed to have no
special representatives - (Cries of "Oh") - at all events none who were
elected particularly by the miners, unless it be those in the district of
Wallaroo. His idea was that there should be representatives of the
mining interests, who should to some extent make a speciality of
questions affecting that interest.
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13. Electoral Apportionment and Electoral Boundaries
The Commissioner of Public Works (JG Ramsay), told the Assembly (SAPD 1882: 927)
[i]n accordance with the recommendation of the Commission appointed
to inquire into the subject, there would be no interference with old
districts, except as far as equalising the representation was concerned.
The debate also raised the question of representation for the Northern Territory. The
Government’s position, put by Commissioner (SAPD LC 1882: 927) was that
the Government had considered the question of granting of electoral power
to Chinese and Indians who settled there, and had arrived at the conclusion
that it would not be expedient to grant such aliens the franchise.
The Northern Territory was granted two members in the House in 1888 (CA 1888 No.
450). Chief Secretary JG Ramsay (SAPD LC 1888: 626) considered that
now the population had increased considerably ... when they came to
consider the progress which that distant possession had made hon.
members would admit that they were entitled to separate representation.
At present there were about 2300 electors who claimed to vote ... a
marked advance in the progress and stability of pastoral enterprise ...The
mining industry was energetically being pushed forward ... Tropical
agriculture was going on vigorously ... The Bill might be opposed on
account of the cost it would involve, but all the expense would be borne
by the Northern Territory.
A minority of members opposed the proposal. S Tomkinson, for example,
had a very strong feeling that to put the Northern Territory under what
was called representative government would be to inflict great injury on
it. So far the Territory had proved unsatisfactory (SAPD LC 1888: 626).
However, the Bill received strong majority support.
In 1901 (CA 1901 No. 779), following Federation, the SA Parliament was reconstituted to consist of a Legislative Council of 18 members, and a House of Assembly of
42 members. The Assembly was elected from 13 electorates: Torrens with five members;
Adelaide and Alexandra with 4 members; Northern Territory with two members; and the
remaining nine electorates with three members each.
The Government had originally proposed an Assembly of 36 single-member districts,
12 city and suburban members and 24 country members. The proposal had been amended
in the Assembly, and, in the Legislative Council,
[s]o far as the Government were concerned, it was the best they could get
from the House of Assembly. Although the Government opposed it in
the Assembly a majority of that House thought it was a proper
representation, and it was his duty to advocate the adoption of the Bill
as nearly as possible as it stood in this respect ... their duty was to carry
out the wishes of the Parliament and the people. It was in no sense a
party question.
The member raised an important theme.
A comparison of the representation of the State in relation to
population could easily be ascertained from the statistics. South
Australia, however, had never based its parliamentary representation
upon a population basis, but rather upon the geographical extent of the
districts (SAPD LC 1901: 288).
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13. Electoral Apportionment and Electoral Boundaries
The debates on this redistribution were longer and more tortuous than on any other Bill for
a redistribution up to this point. One reason for this was the proposal to cut the membership
of the house from 54 to 42. The debate began on 15 August 1901 with the Second Reading
Speech, and continued over 18 sitting days in the Assembly alone. This produced an
exhaustive consideration of a range of issues.
The Government had prepared the initial proposal, planned to recognise Federation and
the consequent transfer of powers to the new Commonwealth Parliament by reducing the
number of members of the Assembly to 36. This was, as the Attorney-General pointed out
(SAPD LC 1901: 288), "a reversion to the number fixed by the [original, 1855-6]
Constitution Act". Further, the Government had intended a system based on single-member
districts, with 12 electorates in the city, and 24 in the country. This would have entrenched
a 2:1 ratio in favour of the country areas into the constitution and, with it, a severe
malapportionment.
The House of Assembly rejected the proposal in favour of a House of 42 members
elected by multi-member districts. The Attorney-General’s comments emphasised again the
fact that, in these early days of party development, the Government did not "control" the
Parliament on these issues.
They had a Bill ... which the Government were going to stand by totally
as to most of its provisions, for they felt that their position should not be
that of accepting what they themselves had proposed or nothing. Their
duty was to carry out the wish of the Parliament and of the people.
The final redistribution still contained a severe malapportionment in favour of the rural areas
(SAPD LC 1901: 288-9).
1901 Redistribution, enrolment per member.
Adelaide
Port Adelaide
Torrens
5 015
5 513
5 222
Victoria and Albert
Alexandra
Murray
Barossa
Wooroora
Wallaroo
Stanley
Burra Burra
Flinders
Northern Territory
3 078
2 299
2 099
2 794
2 982
3 621
3 223
3 497
3 220
284
The average enrolment per member for the metropolitan districts was 5250; that for the
country electorates (excluding the Northern Territory) was 2979.
This was the first electoral redistribution which was debated in a Parliament in which
there was a substantial membership of political parties. WO Archibald put the position of
the Labor party on the proposal (SAPD 1901: 477-9).
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13. Electoral Apportionment and Electoral Boundaries
The fundamental principle of the measure was that in regard to the
representation of town and country the ratio should be two to one. He
strongly believed in electoral districts on the basis of population, but
recognised that it was utterly impossible for the House to deal with a
measure of that kind unless they were prepared to give and take ... if the
Government were prepared to agree on the principle that there should be
a different proportion for town and country there would be something
in it. He would suggest that in estimating the number of the population
they should make the representation for the country 25 per cent in excess
of that for the metropolitan area. They might even make it 30 per cent,
because they wanted to arrive at a solution of the difficulty ... There was
no alternative on the part of the metropolitan members but to vote
against the Bill.
This offer of a compromise was rejected by the majority consisting of country
representatives, most of them members of the Australian National League (Liberal), and the
redistribution became law.
In 1913, the membership of the Legislative Council was increased to twenty, when the
metropolitan area was divided into two electorates, and the Council was then elected from
five electorates of four members each (CA 1913 No. 1148). The basis of the Assembly was
increased to 19 electorates and 46 members, eleven two-member and eight three-member.
In an unusual approach, the proposal to redistribute was included as only one of four
controversial issues included in a portmanteau Bill. Normally, a redistribution Bill was
considered of such importance that it comprised a Bill of its own. On this occasion, however,
as the Attorney-General (H Homburg, Liberal) told the Assembly (SAPD HA 1913: 335):
"[t]his Bill dealt with four subjects:- 1. Appropriation. 2. Franchise. 3. Redistribution of
seats. 4. Deadlocks."
On the question of redistribution, in a response to an interjection: " Your Bill is more
reactionary than the present system", the Attorney-General replied that
[t]he quotas in this new scheme would be infinitely more in harmony
than they were today. The present disproportion was very considerable,
and it was because of that disproportion that changes were being made
(SAPD 1913: 339).
The "disproportion" referred to were the differences between enrolments within the two
regions of city and country. The proposal was based on a firm commitment to retain the 2:1
ratio in favour of the country districts. He returned to the issue of interests to justify this
(SAPD HA 1913: 340).
[T]he Government had been guided by a desire to group those districts
which had a community of interest. The occupations of people in the
cities were clearly different from those in the agricultural districts, and
they certainly thought that large centres as Port Pirie, Kadina, Wallaroo,
and Moonta were entitled to separate representation as city
constituencies, just as much as the several parts of the metropolitan area
were. If it was insisted that representation should proceed on a strict
population basis, it must follow that the city of Adelaide, which
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13. Electoral Apportionment and Electoral Boundaries
contained 46 per cent of the population of South Australia must have
nearly a half of the total representation in the house. When it was
remembered how absolutely dependent the town population was on the
success of the industries, which were carried on in their country districts,
he did not hesitate to say that if they wished to preserve the prosperity
of South Australia they must not follow a plan of that description, and
shut their eyes to the need of granting adequate representation to those
parts of the State which extended into the country ... The redistribution
of seats on the strict basis of population was not followed anywhere in
Australia.
In response to a call from the Labor party for a more equal representation, he responded by
using "party" as a key argument for the first time in such debates on apportionment.
If the Labor Party had their way then it followed as a consequence that
nearly half the representatives of South Australia would be elected by the
people of Adelaide. If they added to the population of Adelaide the
population of the towns of Wallaroo, Kadina, and Moonta and Port
Pirie then it would make a population of nearly 69 per cent, and put
those towns in a position to absolutely dominate South Australia (SAPD
HA 1913: 341).
Of course, the reverse argument could be applied. The malapportionment placed the
minority country population in a situation where it could "absolutely dominate" the urban
centres. It provided a situation of very unequal access.
The Chief Secretary, in a very long speech (SAPD LC 1913: 319ff), canvassed a range
of issues, but concentrated on justifying the 2:1 ratio. He emphasised the need to balance
interests. He noted that the Government had been
charged [by Labor] with granting to industrial centres the full
representation these advocates of representation on a population basis
claimed for those areas. The time had come for a change, but not of this
character, because the whole producing interest would be completely
outvoted by the comparatively small areas where population was congested.
For the first time, political party considerations played a dominant role in the discussion of
electoral boundaries. Mentioning a decrease from four to three seats for Alexandra, the Chief
Secretary noted "[i]n this case the Government had undoubtedly sacrificed a safe Liberal
seat". The increase for Port Adelaide "would give the Labor Party another certain seat ...
And yet ... the Government had heard no word of gratitude". He included a long table of
"areas, population, taxation, and production", which prompted the interjection:" Have you
got the number of rabbits?", and the response: "No, nor the number of Gerrymanders".
In conclusion (SAPD LC 1913: 328), the Government
desired to give the opportunity for the election of members of
Parliament on the best possible basis, so that the laws they made might
be for the greatest benefit of the State.
E Lucas (Liberal, SAPD LC 1913: 403) returned to the question of population as the basis
of representation.
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13. Electoral Apportionment and Electoral Boundaries
If they added to the population of the metropolitan area the population
of three or four of the bigger towns of the country they would have 60
per cent of the population of the State. If the aim of his friends
opposite to have representation on the population basis were to be
carried out that portion of the State would have 60 per cent of the
representation in Parliament. What a lovely condition of affairs that
would be, to be sure. Those friends of the farmers would disenfranchise
them altogether if they had their way in the matter. In considering that
question they had to take into account not only the value of the districts,
but also the value of their products ... He trusted the day would never
come when either in this State or the Commonwealth they would have
representation on the basis of population.
During the debate, the Labor party proposed that the traditional system of a Government
conducting an assessment of the need for a redistribution, and also of preparing a proposal,
should be abandoned (SAPD HA 1913: 382).
The Labor Party asked that any re-arrangement of the districts should be
left to an impartial commission. It should not be in the power of the
government to re-arrange the districts in a way that would suit them, and
save them from an otherwise inevitable defeat, and when the committee
stage was reached the Labor party would move that portion of the bill
dealing with the gerrymandering proposals should be submitted to an
independent Commissioner, and, if altered at all, altered in a way that would
conserve the interests not of one party, but of the electors as a whole ... A
man was not only entitled to a vote, but to representation as well.
These two points were the centre of the criticism which could be applied to both the process of the
redistribution and the result. A combination of a commitment to rural over-representation and the fact
that the Liberal party received its strongest support in the rural areas was the reason for the terms of
reference given to the designers of the electoral geography. The establishment of an ad hoc independent
Commission, as later cases showed (see below) would not necessarily have dealt with this problem, as
such a Commission works under terms of reference given by a Government.
The point of comparing votes with representation is a strong one. Equality of access is not
provided simply by the right to vote. It requires an equality of "voting power", a system of
"one vote, one value". The redistributions in South Australia had increasingly departed
further from the second principle after the formation of a party system in 1910.
The 1913 redistribution confirmed the 2:1 ratio in favour of the country areas. The
following table sets out the enrolments established in both Houses.
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13. Electoral Apportionment and Electoral Boundaries
1913 Redistribution enrolments (SAPD 1913: 339)
Legislative Council
Central No 1
Central No 2
5 936
4 657
Southern
Midland
Northern
3 283
2 740
3 187
House of Assembly
Adelaide
North Adelaide
Port Adelaide
West Torrens
East Torrens
Sturt
6 423
6 352
7 254
7 413
7 685
7 382
Victoria
Albert
Alexandra
Murray
Barossa
Wooroora
Wallaroo
Yorke Peninsula
Port Pirie
Stanley
Burra
Newcastle
Flinders
5 943
2 823
3 866
3 523
3 759
3 640
4 412
3 253
3 188
4 580
4 363
3 063
2 958
In 1929, the Liberal-Country coalition Government established an Electoral Commission
for the purpose of a redivision of the electorates for both Houses (EA 1929 No. 1914). The
members of the Commission were Surveyor-General TE Day, Deputy State Returning
Officer OH Stephens, Assistant to City Coroner CL Matthews, Chief Secretary H Tassie
and Under-Secretary H Blinman. This Commission was "deemed to be a Royal
Commission" (S 3).
The terms of reference set for the Commission entrenched, for the first time in
legislation, a specific ratio of representation (S 4) which quantified and entrenched the rural
over-representation which had been in every distribution in an informal sense:
the redivision shall be made so that the normal quota of electors for each
member representing an Assembly district shall be as follows: (a) in a proposed metropolitan district, the number arrived at by
dividing the total number of electors in all the existing metropolitan
districts by the total number of members representing those districts:
(b) in a proposed urban district, twice the number arrived at by dividing
the total number of electors in both the existing urban districts by
the number of members representing those districts;
(c) in a proposed country district, the number arrived at by dividing the
total number of electors in all the existing country districts by the
total number of members representing those districts.
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13. Electoral Apportionment and Electoral Boundaries
The Commission was also set a maximum departure from these quotas of ten per cent.
This satisfied the request of the Labor party in 1913 (see above) for an "independent
Commission". As pointed out above, this did not deal with the issue of malapportionment
and equality of access. The terms of reference given the Commission forced it to comply
with the malapportionment.
The "equality" within the electoral system, applied only within each of the regions. In
previous redistributions, the question of "population" as the basis of the apportionment was
listed as one of, but rarely, if ever the most important of, a longer list of issues to be
incorporated. In 1929, the denial of equality between the regions, and the entrenchment of
a malapportionment, meant that the other criteria were secondary.
The Commission was charged to also consider (a) community or diversity of interest:
(b) means of communication:
(c) physical features:
(d) boundaries of existing Assembly districts and subdivisions.
The only guide to the Commission for the redivison of the Council was that each of the five
Council districts "shall consist of two or more whole Assembly districts" (S 7).
The government’s second reading explanation clarified the reason for the redivision, and
the basic philosophy of the terms of reference. Chief Secretary H Tassie (Liberal), a member
of the Commission, said (SAPD LC 1929: 1542-3)
the existing anomalies in the electorates are well known. They are greatest
in the metropolitan and urban districts. In the metropolitan districts the
quotas of electors for each member vary between 4,000 and 17,000 ...
[The] disparities between the quotas in the various metropolitan
districts, and between the urban and metropolitan quotas, cannot be
justified. On the other hand, there is justification for adopting a different
quota for metropolitan and country districts respectively, owing to the
greater areas of the country districts as compared with the metropolitan
districts and the great variety of interests included in each district.
The proposal, then, was for the electorates within each region to have "approximately the
same quota", but the "existing ratio between the numbers of members for the country and
the numbers of members for the towns and the metropolis will be preserved". This ratio "has
been a principle underlying the legislation of the State Parliament for a very long period, and
it is based on perfectly justifiable reasons". He continued:
I am aware that the policy that has been enunciated by members of the
[Labor] Opposition has been one of representation on a population
basis. The effect of that would be that, as there is considerably over 50
per cent of the population residing in the metropolitan area, Parliament
would be entirely in the hands of the representatives of the
metropolitan area.
In the Assembly (SAPD HA 1929: 1344 - 6), the Premier, RL Butler (Liberal), answered
an interjection from the Labor party, that "the object is to strike a blow at the urban
districts", with the assertion that "the object of the Bill is to give representation on an
adequate basis to all districts".
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J Jelley (Labor) (SAPD LC 1929: 1621) asked
[c]an it be shown that by permitting greater representation for the
country areas the government of the country is being carried out more
successfully than it might otherwise be? ... If the solution of our
difficulties is to have Parliament elected on a gerrymander system why
has it not solved our problems in the past?
WJG Mills (Country party) (SAPD LC 1929: 1678) answered.
When we consider that 56 per cent of the people reside within 10 miles
of the GPO, to make the quota of electors in all electorates the same
would mean complete centralisation, and the outback settlers who are the
lifeblood of the state would be practically disenfranchised, and the few
members they could return under these conditions would be powerless.
Take, for instance, those engaged in the pastoral, wheatgrowing, or
dairying industry ... Several other reasons why the quota should not be
the same, namely, community or diversity of interest, means of
communication, and physical features.
SR Whitford (Labor) asked serious questions about the process (SAPD LC 1929: 1678 - 9).
I think it is a waste of time to appoint a Commission and give it the
instructions contained in this Bill. If Parliament wishes to establish an
Electoral Commission it should give it some authority to exercise its own
sense of judgement and fair play. All that the Bill provides is that a body
of men will be sent out to make certain investigations, and they will be
very much in the same position of a child sent by its mother to a grocer
with strict orders to purchase certain things ... I would like to see
Parliament elected on ... what is generally called one vote one value ... We
have never had one vote one value ... If we adopted the principle of one
vote one value we would get better legislation.
This redistribution, and the debates on the Bill, reinforced the impact of party as a prime consideration.
As the extracts show, the arguments over the principles of apportionment had become even more
condensed to a focus by the Government on two "interests" - rural and metropolitan. The Liberal Country
coalition, determined to maintain a malapportionment in favour of the country areas, where its
supporters were in a majority, had set terms of reference for the Commission which established a formal
statement of a 2:1 malapportionment for the first time. The Labor party, committed to "one vote, one
value", also noted that its supporters in the city were the ones who were seriously under-represented,
and denied an equality of access.
In 1934 (CA 1934 No. 2151), the electoral system was incorporated into a consolidated
Constitution Act. This further entrenched the malapportionment, as a "constitutional
majority" (a majority of the total membership of each house) would be necessary to amend
the redistribution.
In 1936, the Constitution Act was amended and the Assembly election system
redesigned (CA 1936-7 No. 2336), following a promise made by the Premier to reduce the
membership of the House (SAPD LC 1936: 1610 - 1611). The Chief Secretary, G Ritchie
(Liberal), stated that no proposal had been made in the Bill to reduce the membership of the
Council: "what hope would there be of its being passed?"
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13. Electoral Apportionment and Electoral Boundaries
The Assembly membership was reduced to 39, elected from single-member districts. A
proposal for a redistribution, prepared by the (then) Electoral Department, was then referred
to "a committee consisting of His Honour Judge Paine, the Commonwealth Deputy
Returning Officer for the State (NV Jeffreys) ... and the Surveyor-General (JH
McNamara)". This committee was given clear terms of reference (SAPD HA 1936: 1096).
The Government policy is to reduce the numbers of members of the
House of Assembly by seven, and to divide the state into single
electorates, preserving the present ratio of representation between the
Metropolitan and the extra-Metropolitan districts, bearing in mind
always the desirableness of Electoral Districts having a community of
interest as far as possible. The accompanying plan having in view these
points has been tentatively prepared by the Electoral Office and the
Government would be glad if you would consider and report at as early
a date as possible whether in your opinion the plan brings about a
reduction of numbers in a fair and equitable manner .
The single-member system was chosen because
no system had been devised more simple for the elector, more rapid in
operation, or more straightforward in result, but that the system suffered
from, the defects of its merits, from a certain brutality and roughness of
justice. The principal defect alleged against it was that it exaggerated the
representation of majorities. In other words, the majority in Parliament
of the successful Party was greater than the number of votes cast for it
warranted ... does not apply in the same degree ... on our present system
of preferential voting and election by absolute majorities. However,
assuming that the single electorate system does give exaggerated
representation to the majority, that is not altogether a bad thing. In these
days we see many examples of very weak Parliamentary government.
This issue of "over-representation" was re-visited in 1991, when a "fairness clause was
introduced (see below).
The Attorney General continued (SAPD HA 1936: 1098),
[u]nder the system now proposed the electorates will, as a rule, be
reduced to one-half or one-third of their previous size, and the number
of matters which a member will have to attend to should be reduced
accordingly. This will enable members to go more thoroughly into the
problems of their district.
The Liberal Government re-affirmed its commitment to rural over-representation.
With regard to the ratio between the number of members representing
country and city electorates respectively, the proposals in the Bill do not
alter materially the present position. The Government’s policy has always
been to preserve this ratio, and we have at no time bound ourselves to alter
it. We are totally opposed to a system which would give more than half of
the representation to the metropolitan area (SAPD HA 1936: 1098).
The Labor party complained bitterly. To Leader of the Opposition Lacey (SAPD HA 1936: 1307),
[i]t is said that we are living in a democracy, but I say that we are not
being governed at the present time in a democratic way. It is only a sham
democracy when elections are contested on unequal boundaries.
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He continued (SAPD HA 1936: 1311), focussing, correctly, on the "party" component.
"The rights of the people have been disregarded in an attempt by the Government to obtain
a political advantage for its party".
The malapportionment built into the system justified Labor’s bitter complaints, and
also demonstrated that Labor, too, had "party" interests. The following extract from the
debates (SAPD LC 1936: 1886-7) is an example.
[FJ Condon, Labor] In the metropolitan area electors total 203, 647
and they will be asked to return 13 members. In the other electorates the
number of voters is 148,674 and they will be asked to return 26
members.
[T McCallum, Liberal] According to arrangements made years ago.
[FJ Condon] According to arrangements suitable to a particular party
with the object of "dishing" the Labor party and keeping it out of office
for an indefinite term.
[CR Cudmore, Liberal] For the purpose of giving the country fair
representation.
[HG Hawkins, Liberal] The Labor party will get better representation
under this Bill.
KEJ Bardolph (Labor) (SAPD HA 1936: 1507) correctly described the Bill and the
redistribution as part of a long history.
I quite concede that, in my opinion, the measure is not a gerrymander,
but it is perpetuating a gerrymander. The electoral districts of South
Australia were gerrymandered long before this Parliament was elected.
The very suggestion of one country vote equalling three metropolitan
votes is a gerrymander and that is what takes place today under the
present system. Although this measure in my opinion is not a
gerrymander, nevertheless it was introduced for the express purpose of
assisting the Government in power.
The Government’s response (SAPD HA 1936: 1313) to such criticisms re-stated a long-held
"principle".
... an advisory committee was appointed ... Knowing the men who
composed it most people would say that it was impartial. Its only
instruction was to divide the State into 39 districts in the best possible
way and in conformity with community of interests, it being provided
that 63 per cent. of the representation must be in country districts. Mr
Lacey [Labor] complains that more representation will be given to the
country than to the metropolitan area. It has been pointed out frequently
in this House that owing to the greater disabilities of people in the
country in getting in touch with their members, and the distance from
the seat of government, there should be a larger number of members for
the country as compared to the metropolitan area.
In 1954 (EA 1954 No. 37), the Assembly electoral geography was adjusted to take account
of demographic changes which had eroded the 2:1 ratio. This Act therefore "rebuilt" the
malapportionment - the 2:1 ratio of extra-metropolitan:metropolitan electorates, and hence
the 2:1 ratio in favour of the rural voters. The metropolitan area continued to contain 13
electorates; the extra-metropolitan area 26 electorates.
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13. Electoral Apportionment and Electoral Boundaries
The government (Liberal and Country League) explained the rationale of the Bill
(SAPD 1954: 1656-7).
In particular, the government believes that the existing ratio between
metropolitan and country representation should be maintained as far
as possible. The Government takes the view that if all parts of the
State are to be effectively represented in this Parliament it is not
possible to have country electorates with the same number of electors
as metropolitan electorates. Provision is therefore made in this Bill for
maintenance of the existing relation between city and country
representation.
The Act also raised the permitted tolerance to satisfy "approximately equal" within the
two regions to 20 per cent, a change which the Chief Secretary (L McEwen Liberal)
pointed out "is the same as is applicable under the provisions of the Commonwealth
Electoral Act" (SAPD LC 1954: 1656).
The Labor party (FJ Condon, SAPD LC 1954: 1697-9) opposed the Bill "because
it is unjust, unfair and unreasonable ... I regard it as one of the worst pieces of legislation
to which I have ever had to address myself". CD Rowe (Liberal), on the other hand,
referred to the
improper and ill-founded criticism of the electoral set-up in this State
- most of it from people who have no other objective than to secure
for themselves a position in Parliament or a seat on the Treasury
benches - and because there is a complete absence of any real grounds
for criticism ...
The main argument used for electoral reform is one which is
completely fallacious. It is based on the idea what some people are
pleased to call the principle of one vote one value. That is not a
principle but simply an idea that has been invented by certain people
(SAPD LC 1954: 1699).
The 1954 Commission was established with one mandatory term of reference: to retain
the existing boundaries of the metropolitan and country divide, and to maintain the
existing minimum ratio of 2:1 in favour of the country, and to apply a tolerance of 20 per
cent from the mean within each area (EA 1954 No. 37 S 5). The Commission was then
expected, "as far as is compatible" with the mandatory term of reference,
... to create districts in each of which respectively the electors have
common interests...
... each of which is of convenient shape and has reasonable means of
access between the main centres of population therein ..
retains as far as possible, boundaries of existing districts and
subdivisions.
In 1962, a redistribution was inaugurated by an Electoral Act (EA 1962 No. 34), and the
creation of an ad hoc Electoral Commission. The malapportionment in favour of the
country areas had been eroded by the post – World War Two "spread" of the metropolitan
area, and Liberal seats were in jeopardy. The Liberal Government, however, instead of
merely repeating the 1954 process, and strengthening the malapportionment, decided on
a new system. This would have provided just as much benefit for the Liberal party.
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The terms of reference for the Commission were to:
(a) divide the rural areas into twenty approximately equal Assembly
districts;
(b) divide the remaining area of the State into twenty approximately
equal Assembly districts:
Provided that if it appears to the Commission that such
remaining area of the State comprises any part or parts of the
State outside a radius of thirty miles from the general Post
Office at Adelaide, the Commission may provide for one or two
additional Assembly districts ...(S 6).
The Act defined "rural areas" as
those parts of the State the income and livelihood of the majority of the
inhabitants of which are derived predominantly from primary
production or from the supply of processing of goods and services for
persons engaged in primary production.
The quota to satisfy the requirement of "approximately equal" was set with a tolerance of
10%, except for the one or two "permissible" electorates which were set at "at least twothirds of the number of electors per district in the remaining twenty Assembly districts".
The Act also empowered the Commission to divide the State into six Legislative
Council districts (S 7), three in the rural area and three in the remainder.
The government’s case for the Act was put by the Chief Secretary (AL McEwin, SAPD
LC 1962: 1723).
As stated by the Premier on many occasions, the rapid growth of
population in the state has led the Government to consider the question
of redistribution of electoral boundaries.
The Commission reported, a Bill was presented to the Assembly to ratify the redistribution,
but it failed to achieve a constitutional majority, and lapsed.
In 1969, the critics of the malapportionment, and of the restrictions on equality of
access, had their first victory. But it came from an unexpected source.
Until the 1968 election, and the subsequent formation of a Liberal government, the
debates and divisions over electoral apportionment had crystallised into two positions: the
Liberal party resisting any change to the minimum 2:1 ratio in favour of the extrametropolitan area; the Labor party demanding "one vote, one value".
In 1969, the Liberal Premier, RS Hall, shocked some sections of his own party when he proposed a
redistribution which eroded the 2:1 ratio in the direction of greater equality of voting power for all
citizens. In two senses he had no choice. The Labor party, through its leader DA Dunstan, had made
electoral reform a prime issue, especially as the Liberal party had formed a government despite Labor
winning 52% of the first preference votes. The rural malapportionment had worked as it had been
designed.
Demographic changes, especially the spread of the Adelaide area into formerly rural and safe
Liberal electorates, had eroded the party effects of the malapportionment. Labor had already won the
1965 election, despite the malapportionment, and was likely to repeat this at the next election. The
conservative wing of the Liberal party would have sought to rebuild the malapportionment but, for the
first time in the history of South Australia’s Parliament, that wing did not have a majority in the
Legislative Council.
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13. Electoral Apportionment and Electoral Boundaries
Hall was committed, personally, to a greater degree of equality in the electoral system, although he
was the leader of a party which had been totally opposed to any such measure. There were other
members in the Liberal party in the Parliament who agreed with Hall. In the final analysis, he risked the
strains in his party and the real possibility of electoral defeat, in pursuit of greater electoral equality, and
what he considered to be in the best interests of the Liberal party. The result was a relatively generous
measure of electoral reform which, if still falling well short of equity, would never have been
contemplated by any of his predecessors from 1910.
The redistribution required the passage of two Bills: the Electoral Districts (Redivision) Bill
(EA 1969 No. 2), setting up the Redistribution Commission and its terms of reference; and
a Constitution Act Amendment Bill embodying the Commission’s proposals (CA 1969 No.
110). The Labor party supported both. Although it inveighed against the rural weighting
which was included in the terms of reference, it welcomed the extension of the principle of
equality of votes - partly as the new electoral geography provided a much stronger chance for
electoral success.
In 1969, the Liberal government under Premier Hall, with the support of the Labor
party, but the vehement opposition of sectors of his own party, reformed the electoral system
for the Assembly, and established an Electoral Redistribution Commission to redistribute
under the most democratic terms of reference in the history of the Colony and State (EA
1968-69 No. 2). After nearly a century of an unspecified, but strong rural
malapportionment, and after more than thirty years of a formal 2:1 malapportionment in
favour of rural voters, the party which had always opposed "one vote, one value" moved the
closest, to date, to it.
The Act (S 7) increased the membership of the Assembly from 39 to 47 and, in a new
component, defined the metropolitan area: "shall consist of the Metropolitan Planning
area". The redistribution did not erase the rural malapportionment, but it did weaken it
significantly. The process of apportionment required the Electoral Redistribution
Commission to calculate the metropolitan quota by setting it at 115 per cent of the mean
enrolment - the total enrolment divided by 47. Applying this quota to the new metropolitan
region defined the number of electorates which would be included. The remaining number
of seats out of the total of 47 were allocated to the extra-metropolitan area. The tolerance
defining "equal" within each region was 10% in the metropolitan area and 15% in the
country.
In the Assembly, it was obvious that the Liberal party had accepted the Hall demand for reform but, for
some of them, it was a case of acceptance "through clenched teeth". Those members who deplored the
decline in rural representation proposed by the terms of reference spoke from the heart. Only the
determination and unity of the Assembly members of the Cabinet had secured the Assembly Liberal
party’s acquiescence in the reform, and echoes of strenuous debates in the party room were heard in
the Chamber. Many of the Liberal speeches on the Bill took the form of a lament for the passing of the
rural hegemony of the past century.
Some Liberal members went further. SG Evans found the "variation ... too great" between
the number of metropolitan and rural MPs (SAPD HA 1969: 1716), and J Freebairn
thought the measure "a compromise between LCL principles and evil" (SAPD HA 1968-9:
583). The party lines held firm and the proposal received unanimous support in the
Assembly.
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13. Electoral Apportionment and Electoral Boundaries
This was not the case in the Legislative Council, where "modernisation" was not a major consideration
for the Liberal members. RC DeGaris (Liberal), in charge of the measures in the Upper House,
introduced both bills in the most formal and perfunctory manner. His only major speech on either Bill
was devoted almost entirely to a rebuttal of Labor’s demand for "one vote, one value".
In the second reading speech (SAPD LC 1968: 2350-1) in the Legislative Council, RC
DeGaris explained:
The Government recognises the urgent need for electoral reform in this
State and has had this Bill prepared in order to secure for the people of
this State a fairer and more equitable representation in Parliament than
the law permits at present. The policy has been endorsed by
representatives of both political parties in another place.
The Labor party supported the Bill "[w]ith certain reservations" (AJ Shard, SAPD LC
1968: 2419). However, Labor also raised the issue that
having loaded the country districts in the House of Assembly at a given
figure to the disadvantage of an enlarged metropolitan area, there can be
a fluctuation in country districts of 15 per cent either way in the country
quota. I do not know why ... we accepted it because it was something
better than the previous gerrymander.
The Council Liberals were, with the exception of one Minister (CM Hill), openly hostile to
the proposal. HK Kemp described at as "a silly season measure" (SAPD LC 1968-9: 2777),
and justified the existing rural over-representation on the grounds that "many of these [city]
people have not been long enough in South Australia to have truly-developed political
loyalties" (SAPD LC 1968-9: 2777). CD Rowe feared "a city-controlled House of
Assembly and also a city-controlled Legislative Council" (SAPD LC 1969: 2555). Sir
Norman Jude (SAPD LC 1969: 3351) stated the position of his conservative colleagues in
a colourful way:
This Bill involves the rape of the country districts [and] is ... so pregnant
with ill possibilities for the future of the country people in this State that
it should be terminated forthwith.
The redistribution was carried by amending the Constitution Act (CA 1969 No. 110). The
first step towards "one vote, one value" had been accomplished.
The long history of malapportionment in the South Australian electoral system was
brought to an end in 1975, when an amendment to the Constitution Act (CA 1975 No.
122), introduced and entrenched "one vote, one value", and entrenched an independent
authority to conduct redistributions.
A permanent Electoral Districts Boundaries Commission was established in 1975,
"a body corporate with perpetual succession and a common seal", with a membership of:
(a) the Chairman of the Commission who shall be a Judge of the
Supreme Court appointed by the Chief Justice ... ;
(b) the Electoral Commissioner ...; and
(c) the Surveyor-General (S 79).
The Commission was established as "a body corporate with perpetual succession and a
common seal" (S 79).
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This was a major advance in the
quality of access for citizens. It ensured
that decisions about when to have
redistributions were taken out of the
political process - removed from the
political parties. Second, the Commission
was required to "invite representations
from any person in relation to the
proposed redistribution" by an
advertisement "in a newspaper circulating
generally throughout the State"; to "hear
and consider any evidence or argument
submitted to it in support of those
representations"; to publicise its electoral
redistribution in the Gazette. Any appeal
against the redistribution was to be heard
The official ‘seal’ of the independent Electoral
in the Supreme Court (S 83). Hence the
Districts Boundaries Commission set up in 1975.
process of a redistribution was open,
public, and available to all citizens. It was
no longer a matter of political party
decisions, and of decisions made "behind
closed doors".
The principle of "one vote, one value" was entrenched with the provision in the
Constitution (S 77) that
[w]henever an electoral redistribution is made, the redistribution shall be
made on the principle that the number of electors comprised in each
electoral district must not (as at the relevant date) vary from the electoral
quota by more than the permissible tolerance.
The quota was set by dividing the total enrolment by 47, and the tolerance was set at 10%.
The Act also specified other criteria, but with an important qualification: "the
Commission shall as far as practical have regard to" (emphasis added):
(a) ... amongst the population of each electoral district ... community of
interest (of an economic, social, regional or other kind);
(b) the population of each proposed district;
(c) ... the boundaries of existing electoral districts;
(d) ... topography ...; and
(f) the nature of substantial demographic changes ... likely to take place
... and may have regard to any other matters that it thinks relevant
(emphasis added) (S 83).
The Government stated that the measure
gives effect to the Government’s election mandate to ensure that the
single-member electorates of the House of Assembly are redistributed
on the basis of one vote one value; that is, with as nearly as practicable
equal numbers of voters in each electoral district, but with a tolerance
from an electoral quota of 10 per cent either way ... the Constitution
should provide that all future redistributions shall be on this basis, and
therefore that part of the Constitution will be entrenched.
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13. Electoral Apportionment and Electoral Boundaries
The Opposition agreed with the proposal. Leader of the Liberal Opposition, D Tonkin, in
his second reading speech, indicated the extent to which the Liberal party had changed in its
attitude to equity in the electoral system, and hence to equality of access. After 65 years of
support for an electoral system which contained a bias in favour of one section of the
population, the Liberal party had found a new commitment. Tonkin quoted a key section of
his 1975 election speech to the Assembly.
We will establish a permanent independent commission to review House
of Assembly boundaries immediately and thereafter to conduct regular
reviews. Such commission will be so constituted as to be divorced from
political influence - the Liberal Party will not entertain any possibility of
gerrymander. We believe that every citizen of the state should have equal
access to Parliamentary representation (SAPD HA 1975: 1105).
With this new commitment from the Liberal party, one vote one value was finally
entrenched into the Constitution of the State.
In 1991 (CA 1991 No. 1), the Parliament carried an amendment to the Constitution
which established a unique component of the process of redistributions - a "fairness clause".
This was included into the Act following a number of election results which had seen a party
with a majority of votes fail to win a majority of seats, and hence form a government.
Such a result is not unusual in systems based on single-member districts, which may produce a skewed
result in terms of the relationship between votes and seats. This issue came to a head in the 1989
election. The Liberal party had asserted that the electoral geography contained a bias to the Labor party,
and hence "fairness" had not been achieved.
The Liberal party had asserted, correctly, throughout the fifteen years since "one vote, one value"
was entrenched into the Constitution that "equality" does not guarantee "fairness". They defined the latter
as a guarantee that the party which wins more than 50 per cent of the two-party preferred vote should
be able to form a majority government.
The Liberal opposition in 1990 had moved for a joint-house select committee to report on:
(i) the fairness and appropriateness of the existing electoral system
providing for representation in the House of Assembly through
single-member electorates;
(ii) other electoral systems for popularly elected legislatures with
universal franchise, including multi-member electorates;
(iii) whether or not criteria for defining electoral boundaries are
necessary and, if they are regarded as necessary, to determine
whether or not the criteria the Electoral District Boundaries
Commission presently is to have regard to when making a
redistribution of electoral boundaries for the House of Assembly
results in a fair electoral system and what changes, if any, should be
proposed to those criteria to ensure that electoral fairness is
achieved; ...
This proposal was rejected by the Labor government in favour of a House of Assembly select
committee with similar terms of reference (SAPD LC 1991: 2168).
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13. Electoral Apportionment and Electoral Boundaries
A select committee deliberated, and concluded that a radical criterion should be applied
to future redistributions. The Constitution Act (CA 1991 No. 1 S 3) was amended to
include the following.
Electoral fairness and other criteria
(1) In making an electoral redistribution the Commission must ensure,
as far as practicable, that the electoral redistribution is fair to prospective
candidates and groups of candidates so that, if candidates of a particular
group attract more than 50 per cent of the popular vote (determined by
aggregating votes cast throughout the State and allocating preferences to
the necessary extent), they will be elected in sufficient numbers to enable
a government to be formed.
The Act also established that
a reference to a group of candidates includes not only candidates
endorsed by the same political party but also candidates whose political
stance is such that there is reason to believe that they would, if elected in
sufficient numbers, be prepared to act in concert to form or support a
government (S 3).
The stated justification for the measure merits analysis, as the intention certainly was relevant to the
question of a democratic electoral system, and to the quality of access of the voters. If an election result
does provide one party with a majority of the votes, but the system denies that party the right to govern,
then there is a flaw. The question is whether the proposed solution is valid.
The government, through Attorney-General CJ Sumner (Labor, SAPD LC 1991: 1980)
provided a perfunctory introduction of the Bill for these changes, with no explanation. The
opposition (Liberal, KT Griffin, SAPD LC 1991: 2167) did expand on the issue while
giving it full support.
Griffin explained his support for the Bill, which
reflects the recommendations of the select committee and, in my view,
will ensure that, with the Boundaries Commission taking into
consideration all the criteria and giving emphasis to the requirement to
ensure that as far as practicable that the party gaining 50 per cent plus
one of the two-party preferred vote has a reasonable prospect of forming
Government, the redistribution will be fair ... that we will not have a
situation as we did in the 1989 State election in which, even if a party
gains 52 per cent of the two-Party preferred vote, it does not have an
even chance of gaining Government.
The intention was certainly in accord with the principles of democratic representation. But the method
chosen to provide for "fairness" was flawed.
In 1976, the Electoral Boundaries Commission had been asked by the Labor government to
consider a similar "fairness" clause as a "permissive" criterion for the redistribution. The
Commission reported that such a criterion "assumes that we should make as fair a
redistribution as possible having regard to existing voting patterns", and concluded that:
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13. Electoral Apportionment and Electoral Boundaries
We are not satisfied, after a full consideration of the evidence presented
to us, that there is any reliable method of forecasting how electors will
vote next time ... Political science in its role of predicting voting patterns
in future elections seems to us, with respect, to involve an interpretation
of incomplete statistical data, a series of assumptions as to uncounted
preference votes, and a measure of oneiromancy ... We think that it is
unwise for us to allow our imperfect predicting capacity to influence our
careful application of the mandatory criteria (Report, Electoral
Boundaries Commission 1976: 12, 13).
Since then, one "problem" has been resolved - preferences are counted out to a two-candidate
result in all contests.
The major problem remains and, in fact, has become more serious. The Australia-wide trend of
increasing volatility among the voters means that predictions on the basis of past voting patterns is even
more a matter of "oneiromancy" than in 1976. However, the suggested "permissive" criterion was made
mandatory in 1991, and was applied in the redistribution of that year. The Commission described its task
as "new and monumentally difficult" (Report, Electoral Boundaries Commission 1991: (i)).
The "fairness" criterion has an "escape clause" - that the principle should be applied "as far as
practicable". This is not very far at all. The principle depends on the methodology which was correctly
critiqued by the 1991 Commission - the extrapolation of future voting patterns from past voting trends.
This is increasingly a questionable activity.
In 1994 (CA 1994 No. 36), the level of access to the processes of the Electoral Districts
Boundaries Commission was significantly increased by amendments to the Constitution Act
which required the Commission to
(a) prepare a draft order for the electoral redistribution;
(b) send a copy of that draft to each person who made a representation
to the Commission ... and
publicise the availability - by inspection or purchase - of copies of the draft (S 2), and invite
any person "to make any final submission in writing".
This Act was in accord with
[t]he Government’s election Voluntary Voting and Fair Elections policy
... This Bill implements a stated election policy of the Liberal
Government and makes a sensible reform to the process of electoral
redistribution in this State (SAPD LC 1994: 883).
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14 Referendums
14-1 Introduction
A referendum is a process which offers "direct democracy" to the citizens, and allows them
to vote directly on matters of public policy, or on matters relating to the constitution. In
relation to the latter, the strict application of the term "referendum" is applied to the
processes which are involved in the amendment of the Australian Constitution.
In South Australia, the Constitution is amended by a vote of the Parliament, with the
one proviso that any such Bill has to be passed, in both Houses, with a "constitutional
majority" - a majority of the members (not merely the members attending for the vote). A
referendum is required to amend the Constitution only in regard to two specific items.
In 1969, at the time of the remarkable transformation of the attitude of the Liberal
party of the House of Assembly to electoral reform (see above), the Liberal party in the
Legislative Council decided that the radicalism of such changes could even threaten the
powers, even the existence, of the Upper House. The Labor party had in its Platform, a
policy of abolition, and there were indications that the absolute veto power of the Council
over all legislation, incorporated as a "defence of property" in the 1855-56 Constitution,
was under challenge.
The Liberal party in the Legislative Council therefore forced the entrenchment into the
Constitution of a "protection" (CA 1969 No. 110 S 2).
(1) Except as provided in this section (a) the House of Assembly shall not be abolished;
(b) the Legislative Council shall not be abolished;
(c) the powers of the Legislative Council shall not be altered;
and any Bill "providing for or affecting" these factors
shall be reserved for the signification of Her Majesty’s pleasure thereon,
and shall not be presented to the governor for Her Majesty’s assent until
the Bill has been approved by the electors
of the House of Assembly (now simply "by the electors").
The second entrenched section of the Constitution Act which requires a referendum is
the principle of "one vote, one value". This was incorporated in 1975 (CA 1975 No. 122)
by including a new section (S 88) into the Constitution.
A Bill providing for or affecting the repeal, suspension, or amendment of
any provision ... shall not be presented to Her Majesty or the Governor
for assent unless(a) the Bill does not provide for, or effect, the repeal, suspension or
amendment of a provision of this section and the Bill does not:(i) offend against the principle that the State is to be divided into
electoral districts each returning the same number ... of
Members to the House of Assembly;
(ii) offend against the principle ... by which the number of electors
to be comprised in each electoral district upon an electoral
redistribution is to be ascertained;
(iii) affect the frequency with which electoral redistributions are to
be made; or
(iv) offend against the principle that an electoral redistribution is to
be made by a Commission that is independent of political
influence or control; or
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14. Referendums
(b) the Bill has been approved by the electors in accordance with this
section.
The referendum, if required, would be "submitted to the electors of the House of
Assembly" (now simply "to the electors").
An important feature concerning constitutional referendums is that the result binds a
Government to enact the amendment. This does not apply to the second form of the
application of "direct democracy" - often referred to as a referendum, but in correct terms,
a "plebiscite". This is a "weaker" statement by the public to its representatives, as it does not
bind the Parliament to any specific action. However, the terms "referendum" and "plebiscite"
are often used as synonyms, and some of the cases of what were called a referendum in South
Australia were actually plebiscites. The word referendum is therefore used below.
14-2 Referendums in South Australia
Nine referendums have been held in the
history of South Australia. These nine
referendums involved 12 questions.
The first referendum in 1896 contained
three questions, and these were put to the
people in conjunction with House of
Assembly elections on 25 April, 1896. The
basis for the referendums was the roll for the
House of Assembly, not the restricted
property franchise for the Legislative Council.
There were 137 781 electors on the roll, and
of these, 91 348 (66.3%) voted. Of these, no
less than 12 830 (14.1%) cast an informal
ballot.
(1) Are you in favour of the
continuance of the present
system of education in State
Schools?
This was passed: "yes" , 51 681; "no" 17 819
(2) Are you in favour of the
introduction of Scriptural
instruction in the State Schools
during School hours?
This referendum was defeated: "yes" 19 280;
"no" 34 834.
(3) Are you in favour of the
payment of a capitation grant
to denominational Schools for
Secular results?
This referendum was also defeated: "yes"
13 349; "no" 42 007.
Results of the 1898 referendum as
reported in The Observer.
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14. Referendums
Two referendums were authorised by "An Act to amend The Australasian Federation
Enabling Act (South Australia) 1895" (Act 717 of 1898-9). These were referendums held
in regard to South Australians’ opinions on Federation. The first, held on 4 June, 1898,
concerned the first draft of the proposed Constitution - in the Federal Constitution Bill.
This was put to the people with the wording "Are you in favour of the proposed Federal
Constitution Bill?" This was carried overwhelmingly in South Australia. Of the 126 430 on
the roll, 53 842 (39.5%) voted, and 722 (1.3%) cast an informal ballot. Of the 53 120
formal ballots, 35 800 (66.5%) were in favour.
However, due to the lack of equivalent support elsewhere in Australia, an amended Bill
was prepared, and this was "submitted to the electors of the House of Assembly ... for
acceptance or rejection by direct vote" (S 2). The question was "Are you in favour of the
Amended Commonwealth Bill?", and the polling was taken in conjunction with the elections
for the House of Assembly on 29 April, 1899. Again, South Australians showed themselves
to be ardent supporters of Federation. Of the enrolment of 152 393, the turnout was
93 952 (61.7%), but 10 909 ballots were informal. The referendum passed with 65 990
(70.2%) supporting the proposal.
A second referendum question was put to the voters on 29 April, a question concerning
the restricted property franchise for the Legislative Council. This issue had been constant
since the inauguration of representative democracy in 1857 (see above). In the 1890s, the
issue came to a head with the election of the reformist government of Charles Cameron
Kingston, a strong advocate of a more democratic franchise.
In the period from 1893 to 1899, no less than nine attempts were made to broaden the
franchise for the Council. Each failed, with five defeated in the Council. As a context for the
referendum on the issue, these Bills were:
1893 Adult suffrage
1894 Household suffrage
1894 Married women; leasehold; ten pounds household
1895 Household suffrage
1895 Fifteen pounds household suffrage
1896 Fifteen pounds household suffrage
1898 Household suffrage
1899 Household suffrage
1899 Fifteen pounds household suffrage.
In 1898, Kingston advised the House of Assembly that he had decided on a frontal attack
(SAPD HA 1898: 1159).
[T]he Government propose that the constitution of the Legislative
Council shall be reformed by the substitution of adult suffrage ... [and]
also intend to take a referendum of all electors at the next general
elections.
The Council members were horrified: "Never in the history of the Colony had such action
been taken by any Government" (SAPD LC 1898-9: 558). Kingston was censured by a vote
of 13 to 5 (SAPD LC 1898-9: 564), and the Council adjourned for the Christmas break
without passing the Appropriation Bill. In the end, Kingston was forced to weaken the
strong statement to
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14. Referendums
the Assembly reaffirms its right to direct consultation with its
constituents by means of a referendum, and the question of Household
Suffrage as set forth in the Bill which received the Approval of the House
of Assembly during the present session may properly be the subject of
such referendum (SAPD HA 1898-9: 372).
The referendum was held on election day, and the result was a majority "yes" for household
suffrage. The question put to the voters was "Are you in favour of extending the franchise
for the Legislative Council to all householders as provided in the Bill passed by the House
of Assembly in 1898?" The terms of the Bill included that when a man and his wife lived in
the same dwelling, of which either was the householder, then each would have a vote for the
Council.
Of the 152 393 electors on the roll, 94 151 (61.8%) voted, with 11 015 (11.7%)
informal. A total of 49 208 (52.3%) were in favour of household suffrage. This did not
convince The Register, which had been a fervent opponent to Kingston and his policies.
They had represented that the people regarded this as a burning
question, but the people showed in the most unmistakable fashion that
their attitude in the matter had been misjudged (10 May 1899).
Both sides could find "support". The opponents of reform pointed to the low turnout, and
denied that Kingston had any mandate. To Council member JL Parsons, (cited in the Register
10 May 1899), the "optimism of a ministry which can extract even the semblance of a
victory for household suffrage ... is amazing and amusing".
Kingston took the result as a mandate, and re-introduced the bill to the Assembly. His
Chief Secretary in the Council, JV O’Loghlin (Labor), asked
[i]s South Australia to be a democracy ... or a sort of bastard plutocracy,
and not a plutocracy based on every form of wealth, but only of land
and real estate? ... Was South Australia to be governed by the whole
people or by just so many of them that as happened to possess a certain
value of real estate? (SAPD LC 1898: 120).
The Council was unimpressed by the referendum result, and allowed the Bill to languish in the Council
for five months, eventually to be a catalyst for the defeat of the Kingston Ministry. Even a positive
referendum result was not enough to convince the majority of the Legislative Council to allow any
reform.
In 1910, "The Payment of Members Referendum Act" (Act 1025 of 1910) was passed,
authorising a referendum to be held on the question:
Are you in favour of increasing the payment of members of Parliament
to Three Hundred Pounds per annum? (S 2)
This State referendum was held in conjunction with two Commonwealth referendums, and
this allowed the referendum Act to grant enabling authority for the conduct of the State
referendum to the Commonwealth officers, and to specify that the "persons entitled to vote"
at the Commonwealth poll would also have the right to vote for the State referendum (S 4).
The majority of the South Australian public who voted (a turnout of only 61.9% of
the 216 027 on the roll), were not impressed with the idea of increasing payments to
members. While 42 934 voted in favour, a massive 89 042 voted against.
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14. Referendums
A referendum, with a polling date of 27 March 1915 (in Renmark on 3 April), was
authorised by Executive Council without the necessity for a formal Act of the Parliament.
The official notice was published on 25 February, and fixed the referendum to take place on
the same day as the State election, thus utilising the normal election processes, facilities and
staff.
The referendum was held
with a view to fixing the hour when bar-rooms in premises licensed for
the supply of intoxicating liquors should be compulsorily closed (The
South Australian Government Gazette, 25 February 1915: 485),
and offered the choices of (a) 6pm, (b) 7pm, (c) 8pm, (d) 9pm, (e) 10pm, (f) 11pm.
The counting method used was unusual.
If the votes recorded in favour of resolution a constitute a majority of
the votes recorded at the referendum, resolution a shall be regarded as
carried; if the votes recorded in favour of resolution a do not constitute
a majority of the votes recorded, those recorded in favour of resolution
a shall be added to those recorded in favour of resolution b, and if the
sum of the votes thus found constitutes a majority of the votes thus
recorded, resolution b shall be regarded as carried; this process shall be
continued until a majority of the votes recorded has been arrived at in
favour of a resolution ...
Of the 253 391 on the roll, 70.4% voted, with just one per cent informal. Only two of the
closing times suggested received support above six per cent: 34.4% for 11 pm; 56.3% for 6
pm. This closing time remained in force for the next 60 years.
In 1965, a referendum was held in regard to lotteries. The Referendum (State Lotteries)
Act, 1965, No. 12 established the authority for the referendum. The question put to the
people was: "Are you in favour of the promotion and conduct of lotteries by or under the
authority of the Government of the State? The rules of "compulsory voting" applied to the
referendum, held on 20 November, 1965. Of the 567 020 on the roll, 92.5% voted, with
7.2% informal. A total of 65.7% supported the proposal.
In 1970, a "limited" referendum was held on the question:
Are you in favour of shops in the Metropolitan Planning Area and the
Municipality of Gawler being permitted to remain open for trading until
9 pm on Fridays?"
The Dunstan Labor government had been under pressure from two sides. There was a strong push for
late-night shopping from the owners of the suburban shopping centres, but an equally strong resistance
from the union movement. Dunstan, who was assumed by some to have expected a rejection by the
people of any extension, allowed the referendum.
The relevant Act, the Referendum (Metropolitan Area Shop Trading Hours) Act (1970,
No. 11) established the standard processes and structures, and applied "compulsory voting",
and the referendum was held on 19 September 1970, only in the areas mentioned in the Act.
The vote was very close. Of the 463 629 on the rolls in the area, 89.2% voted, with a
massive 11.0% informal. Only 48.2% voted in favour.
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14. Referendums
In 1982, the people were asked: "Are you in favour of daylight saving?" following the
passage of the Referendum (Daylight Saving) Act 1982 No. 80. The referendum was held
on 6 November 1982, in conjunction with the State elections. Of the 871 215 on the roll,
93.1% voted in the referendum, with 2.1% informal. The proposal received strong support
with 70.1% voting "yes".
In 1991, a referendum was held on the question of the amendment of specific clauses
of the Constitution Act. Under the terms of the entrenchment of certain provisions of that
Act, (see above) a referendum of the voters is required to validate legislation passed by the
Parliament. The question put by the Act (Referendum (Electoral Redistribution) Act 1990,
No. 80) was "Do you approve the Constitution (Electoral Redistribution) Amendment Bill,
1990?". This asked the electors to ratify proposals to start the process of an immediate
redistribution and to establish redistributions "within three months after each polling day"
(EA 1991 No. 1, S 2), and to incorporate a "fairness clause into the Constitution. The
referendum was held on 9 February 1991, and validated the amendment (CA 1991 No. 1).
A total of 76.7% of the 882 650 who voted (with 4.0% informal), agreed with the
entrenchment.
14-3 Referendums and access
A referendum involves a process of a direct decision by the electors on a proposed subject –
direct democracy. In the SA referendums, as in the rest of Australia, it is a matter of a direct
democracy, but only on questions devised by the government through the parliament.
The majority of the referendums put to the SA electorate were, in a strict sense, plebiscites. Whatever
the form and the name, the "success rate" was certainly much higher than in federal referendums. One
reason for this was the bipartisan support for many of the questions; another was that most proposals
were sensible, logical, and contained no specific benefit for a particular interest. A third reason was that,
unlike federal referendums, there was no requirement for a "double majority" (a majority over the nation,
and a majority in a majority of the States), no "central" versus "regional" chasm, and no intensity, in most
cases, of partisan confrontation.
The concept of a direct democracy through a Citizens’ Initiated Referendum (CIR) process has not
yet been incorporated into any constitutional or electoral legislation in Australia. However, there are
moves to include it as part of the democratic decision-making process in the ACT and in South Australia.
A CIR allows the citizens to propose the question to be put to a referendum which, under some
types of CIR, if carried, bind the government and the parliament to legislate in terms of the referendum.
The concept can be separated into two types. One is the "popular veto", which provides for a petition
from a specified proportion of the electorate on a law which already exists. The ensuing referendum has
the authority, if carried, to delete the legislation from the statute book. The second, the "initiative"
referendum, gives the right to electors to force the passage of legislation.
Both concepts are applied in some nations, such as Italy, Switzerland, and many states of the USA.
In California, for example, if at least 5 per cent of the electors sign a petition, then the process is
generated. There are three types of CIR extant in California: constitutional amendment; direct initiative
for a legislative action; a veto, where a law is suspended until a referendum decides whether it remains
on the statute book.
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14. Referendums
The concept of a CIR is embedded in a liberal ideology, that a check is needed against government.
It is usually supported by groups on the right, especially those disillusioned by traditional party politics;
by interest groups who have failed to have their demands accepted by the mainstream parties; by "moral"
groups, the gun lobby, and supporters of capital punishment.
The CIR process is usually opposed by the mainstream parties. Only the Australian Democrats
currently are in favour. One reason for this is that a CIR actually weakens the authority of parties, as it
enables the electors directly to "legislate", distinct from party identification and party policy.
Given the authority involved in a CIR process, it is a pre-requisite for their introduction that the
society should contain a politically informed and aware electorate. The complexity and importance of a
"direct democracy" requires this as a minimum.
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15 State Electoral Office
15-1 Introduction
One prime task of the State Electoral Office (SEO) in 2002, under the direction of the
independent Electoral Commissioner, is to administer the Electoral Act, and administer the
elections. Administration can be defined as
[t]he activity concerned with the implementation of policies by the
direction or management of the efforts of individuals and groups
towards specified goals. Administration may include activities of
decision-making that amount, in effect, to the making of policy. The
formal setting of priorities is usually carried out by the legislature
(Roberts 1971: 4).
The State Electoral Office functions under the principles in such a definition.
The policies concerning elections, election systems and electoral laws are primarily the
functions of government and parliament. In a strict sense, the State Electoral Office has a
task of managing electoral matters, of executing the Electoral Acts passed by the parliament
- the implementation rather than the making of policy. In this strict sense, the role of the
SEO is concerned with both the structures and processes involved in carrying out the
electoral policies framed in the parliament.
The SEO has broader roles than simple administration in this sense. Its activities, as
with the modern public service in general, contain an important input, through advice and
recommendation, into a policy-making as well as a policy-applying function - for example,
the application of delegated powers concerning elections. The SEO is a prime, even the most
important source of input and advice to government in relation to the development of the
Electoral Act, and of the structures and processes of elections. That is, it has the potential
to shape the policies that it will be required to administer. This is a positive feature - who
better than the SEO knows how democratic elections should be run.
There is an important distinction between advice and recommendation. The former, in the tradition and
philosophy of a public service in a parliamentary (Westminster) system is "neutral". Perhaps offering
alternatives, but usually a formal, dispassionate response to a question from the government of the day.
Recommendations are different: they are formal proposals to government which are based on a positive
approach for change to an Act, or formal proposals concerning regulations which are specifically
designed to increase the level and quality of access for the electors, or to improve the administrative
framework for the conduct of elections.
However, expert advice and recommendations from the SEO are no more than that. Governments
can ignore such advice and recommendations; parliaments can reject them. In both cases, such actions
result from a political party deciding that the advice is not in accord with party policy; on occasions,
because the advice is not in accord with party self-interest. Such rejection is frustrating for those who
have formulated that advice, purely on the basis of attempting to improve the quality in the electoral
structures and processes, and hence the quality of democratic representation.
The activity of electoral administration is intermeshed with parliamentary and governmental
political processes. For elections to be free and fair, and for political representation and
access to be guaranteed to the highest level, the formal and on-going function of
administration of elections needs to be based on a structure which, as far as possible, is
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15. State Electoral Office
independent of politics, and especially of party politics. The SEO is part of the broad
governmental structures, but its purposes, roles and functions are such that its independence
has to be a defining characteristic of its structure and place within that broader system.
The State Electoral Office, formerly a Department, received its present nomenclature in 1993. This
decision reflected the changing roles of the enterprise, and it carried less of a suggestion that the
organization was an agency of the government, and under the control of government (that is, of a party
in government). A further change to State Electoral Commission would carry this perception in
independence further.
In 2002, the head of the State Electoral Office, the Electoral Commissioner, is as
independent as it is possible to be within a public sector organisation. The Commissioner is
responsible to Parliament, not Government, and hence can be seen to be separated as far as
possible from party political influence.
This structure is recent, and differs markedly from the early administration of elections.
15-2 Structure, processes and roles
At the inaugural election for the South Australian Parliament, there was no formal electoral
office in the modern sense. The processes of elections were in the hands of returning officers
for each electoral district, under the guidance of a colonial Returning Officer. These district
officers had authority under the Electoral Act (EA 1955-56 No. 10 S 3) to "appoint such
clerks, deputies, and other subordinate officers as may be necessary to carry this Act into
execution".
There was no central
"electoral office" as exists today,
but there was a "central"
Returning
Officer.
WR
Boothby, in his position of
Sheriff, was the "unofficial"
Returning Officer of the
Colony, and the structures and
processes of the elections during
his period of office included a
number
of
innovations
recommended by him to the
governments. He was a widely
respected officer; as one
commentator put it "the
devotion of an able civil servant
to his job" (GV Portus 1936:
280).
Commentary on conditions in the then Electoral Department
office by the Hon JP Wilson in 1913.
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15. State Electoral Office
South Australia was extremely
well-served by Sheriff Boothby.
From the beginnings of the
planning for the 1857 election, he
had set out to "secure uniformity
of procedure in carrying out the
provisions of the Electoral Act"
William Robinson Boothby is considered a founding
father of South Australia’s electoral framework.
(cited in Fort 2001: 36). His
biographer (Hawker 1969: 197)
merits quotation. Boothby
served on the Court of Disputed Returns in 1854, as returning officer
from 1856 ... He served with dignity and competence, investing them,
particularly the office of Sheriff, with great prestige. His most
memorable work, despite his modest disclaimers, was refining the
provisions in the Electoral Act of 1856 for secret ballot ... His original
contribution, made in the Electoral Act of 1858, was to provide for each
elector to place an X against the name of his preferred candidate instead
of crossing out unwanted names, and for the ballot paper to show ‘no
other matter or thing’ apart from the names of the candidates and on the
back the returning officer’s initials. ... The 1858 Act also introduced [his]
new methods for transferring electors’ names from one constituency to
another and required local registrars to inform the electoral office of
deaths so that rolls were kept up to date. From 1856 to 1903, Boothby
superintended every parliamentary election in South Australia, drafted
every Electoral Act, gave unshakeable evidence to every relevant inquiry
... his proudest boast was that South Australian elections in his time had
never been tainted with bribery and corruption.
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15. State Electoral Office
As this summary of the career of a notable public servant suggests, there is more to the role
of a Chief Returning Officer than the administration of an election. That task is important
enough, but there are other, equally important roles. One of these is the monitoring of, and
recommendations for the amendment of, the Electoral Act. No-one else has the knowledge
and expertise for this task.
The governments, oppositions and members of the Parliaments from 1857 all had
policies regarding the structures and processes of electoral systems. The prime source for
amendment was the electoral office. Reports on elections were transmitted to the
Parliaments, with proposals for reform. And, as the biography of Boothby shows, many of
the innovations in the Acts were as a direct result of such reports.
The electoral office has the prime role of administering elections. Hence, in the case of a government
and a parliament which demands a policy which is not in accord with the highest levels of fairness, and
which contains elements which are restrictions on access for the voters, then the electoral office has no
choice but to apply them. It can recommend policy; it cannot make it.
It needs to be noted that on some major questions about elections, party policies prevailed.
On many, if not most of the amending Bills which were brought into the Parliaments from
1857 to the present day, it was a matter of advice from the electoral office, on mechanics,
processes and procedures, advice which was generally accepted and translated into
amendments to the Electoral Act.
Boothby’s position as Returning Officer for the Province was made formal in 1861 (EA
1861 No. 20 S 5): "The Governor shall appoint some fit person to be the returning officer
of the said Province", who would then proceed to appoint the district and division returning
officers (S 45).
In 1870 (EA 1869-70 No. 18 Ss 5, 6, 63) the position of Returning Officer for the
province was confirmed, and the first provision was made for formal arrangements
concerning the roles of deputy returning officers. In 1896, the formal arrangements were
set out in more detail (EA 1896 No. 667 Ss 21-25, 108-110). The administration of the
Electoral Act was vested by the Governor in
[t]he Returning Officer for the Province, responsible under the Attorney
General; District Returning Officers, each possessed of the power and
charged with the duty to give effect to the Act within his district, subject
to any directions from the Returning Officer of the Province.
The Act (S 24) also allowed for the appointment of Assistant Returning Officers "to
exercise within any outlying portion of a district ... all the powers of the Returning Officer".
Electoral Registrars were appointed "to keep the rolls at specified polling places", although
Postmasters, at specified polling places were, "by virtue of their office and without any
appointment", also Registrars.
The Returning Officers were responsible for making "all necessary arrangements for
taking the poll", and for appointing all necessary staff and facilities, and were the presiding
officers at the chief polling places.
The purpose of the amendments was that the "greater powers to Returning Officers
and Registrars" and "greater facilities for registration and revision", would allow the
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15. State Electoral Office
"electoral machinery to work much more efficiently than under the old system" (SAPD LC
1896: 240). The appointment of Registrars was especially seen as a positive step: it "would
do much to facilitate the registering of claims". The Chief Secretary (JV O’Loghlin, Labor)
outlined one case in point
in the District of Flinders. The chief polling place was Port Lincoln, and
the District extended to Hergott and the Gawler Ranges in the east, and
in some cases the polling places were two and three hundred miles away
from the head centre; but the new proposal was to have Registrars at
Cowell, Port Augusta West, Port Elliston, Streaky Bay, Yalata, Beltana,
Blinman, and Maree (SAPD LC 1896: 240).
The Attorney-General (CC Kingston, SAPD HA 1896: 954) explained the efficiency which
would be achieved by the new administration.
One of the most important alterations of the present law was the
provision for the appointment of electoral registrars who would keep the
rolls at certain polling-places, postmasters by virtue of their offices
should keep the rolls. The idea of the government was to encourage
people to get their names on the roll, and to offer to poor people who
desired to exercise their franchise every opportunity to affect the
necessary registration desirable for that purpose.
The organisational base of the administration was developed further in 1908 (EA 1908 No.
971 Ss 25, 27, 28). The position of Deputy State Returning Officer was created, appointed
by the Governor. District Returning Officers were now appointed by the Minister, on the
recommendation of, and responsible to the State Returning Officer. The duties of deputy
Returning Officers were extended from the earlier Act, which had provided for such
appointments only in outlying areas of districts (SAPD LC 1908: 536). Staffing
responsibilities and authorities were further clarified in 1929 (EA 1929 No. 1929 Ss 8 - 10).
In 1973, in a major change, (EA 1973 No. 49 S 4) the Parliament created the position
of Electoral Commissioner who
shall be responsible for the administration of this Act, and
shall have and may exercise such other powers, functions and authorities
as are conferred on him by this Act or any other Act.
The Minister, DHL Banfield (Labor), emphasised that the position would be "insulated",
in that "he will be removable from office only on an address from Parliament".
It is of paramount importance that the occupant of the office should be
able to carry out his duties with the degree of administrative
independence that an arrangement of this kind provides.
Further, the "Electoral Commissioner shall not be subject to the Public Service Act", and
the "terms and conditions of appointment and employment" shall be determined by the
Governor.
The Opposition (SAPD LC 1973: 1441) supported the proposal to establish the
positions of Electoral Commissioner and Principal Electoral Officer at "the standard and
status (and possibly the salary) of similar officers in other States". More important, support
was given for the proposal to make
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15. State Electoral Office
the position of the Commissioner much more secure and free from
undue influence ... This provision should always have been in the Act
because it is possible that undue influence by way of threat could be
brought against an officer in a responsible position where perhaps one or
two votes may be so valuable as to decide the fate of a government in an
election in any one seat. For this reason it is only fair and right that the
Commissioner should be secure in his position to make decisions
without fear or favour.
In these extracts are the keystones of the structure of the independent authority necessary
for the existence of a democratic system of elections. Such an authority has the prime
responsibility to ensure that election structures and processes are in the form and manner
established by the Electoral Act. The phrases "administrative independence", "secure and
free from undue influence", "make decisions without fear or favour" recognise the key
responsibility of the office, and the need to protect it.
This independence is a major component of access. It ensures that the citizens can
assume that the structures and processes of the election system, and of elections, will provide
the maximum degree of protection for them from undemocratic and unprincipled activity,
and that they will take part in a process of representation which, in its administration, is as
objective as humanly possible.
It should also be stressed, again, that the key word above is "administration". The Electoral
Commissioner and the State Electoral Office do not make electoral policy. Where there may be
undemocratic components of an election system, or undemocratic components of an election process,
or limits applied to the electoral participation and access of the citizens, the Electoral Commissioner and
SEO can only administer what the Act set out. If there is blame to be applied for any limits on free and
fair access, that blame should be levelled at the Government and Parliament concerned.
In 1985, an Electoral Act (EA 1985 No. 77) carried through what GJ Crafter (Labor),
called "the most important and comprehensive overhaul of the State’s electoral laws in over
50 years" (SAPD HA 1985: 4252). The Minister also noted the necessity for a consolidated
Act: "the present Electoral Act was first passed in 1929 and has been the subject of no fewer
than 22 separate subsequent amending Acts".
The Act clarified and extended the authority and responsibilities of the Electoral
Commissioner and the then Electoral Department (Ss 8, 13). The Electoral Commissioner
(a) is responsible to the Minister for the administration of this Act;
(b) is responsible for the proper conduct of elections ...;
Further (S 13), "[n]o candidate or person holding an official position in a political party
shall be appointed as an officer".
Since the passage of the 1997 Act (EA 1997 No. 22 S 3), the appointment of the
Electoral Commissioner is made by the Governor on a recommendation of both Houses of
the Parliament.
From 1857, through the long period of the leadership by Boothby, until his retirement
from the position of State Electoral Officer in 1903, and until 1907, the "structure" of the
"electoral section" of the executive branch of government was a relatively informal
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15. State Electoral Office
component of the Department of the Attorney General. The Parliaments in the colonial
years normally heard electoral matters introduced into the Assembly by the Attorney-General
and into the Council by the Chief Secretary.
In 1907, on the recommendation of the Attorney-General, a formal Electoral
Department was established within the SA public service structure, under the portfolio of
Attorney-General, to oversee South Australian electoral matters.
Some of the modern administrative aspects have been outlined above. The following is
a summary of the main legislative changes since 1856.
In the terms of the original Electoral Act (EA 1855-6 No. 10 S 3), the Governor
appointed the Returning Officers, who in turn appointed the further officers required to
carry out the Act. In 1861, the Governor appointed a Returning Officer for the Province,
with specified duties (EA 1861 No. 20 S 5). The 1896 Act (EA 1896 No. 667) vested the
administration of the Act in the Returning Officer for the Province, who was responsible to
the Attorney General for the execution of the Act. District Returning Officers were
responsible for the administration of the act within Districts, subject to the direction of the
Returning Officer of the Province.
In 1908 (EA 1908 No. 971 Ss 24, 25) the Returning Officer for the State was
responsible to the Minister, and a position of Deputy State Returning Officer was
established. In 1972 (EA 1972 No. 136 S 4), the Deputy was renamed an Assistant State
Returning Officer, and the State Returning Officer could delegate powers and functions.
In 1973, the position of Electoral Commissioner was created, and the Assistant State
Returning Officer was re-named the Principal Returning Officer (EA 1973 No. 49 S 4),
renamed again to Deputy Electoral Commissioner in 1976 (EA 1976 No. 114 S 5). In 1981
(EA 1981 No. 35 S 6), the Electoral Commissioner could be delegated powers by the
Minister. The powers and functions of the Commissioner established in the 1985 Act have
been stated above.
The administrative structure was modified in 1985 by the placement of the State
Electoral Department under the authority of the Electoral Commissioner. The Act (EA
1985 No. 77 S 8) stated the key functions of the Commissioner and, through him, the
agency.
The Electoral Commissioner (a) is responsible to the Minister for the administration of this Act;
(b) is responsible for the proper conduct of elections in accordance with
this Act.
(c) is responsible for the carrying out of appropriate programmes of
publicity and public education in order to ensure that the public is
adequately informed of their democratic rights and obligations
under this Act;
(d) is empowered (i) to conduct and promote research into electoral matters;
(ii) to publish the results of such research and other material on
electoral matters.
The (c) and (d) responsibilities gave legislative support for educational and research
functions which a modern electoral jurisdiction needs to progress, especially in regard to
being responsive to a dynamic technological environment.
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15. State Electoral Office
Further, the Commissioner
may, with the permission of the Minister, carry out any other statutory
or non-statutory functions on terms and conditions approved by the
Minister.
The first Annual Report on the Operations of the then Electoral Department under the
1985 Act included an impressive list of "Objectives".
- to maintain jointly with the Australian Electoral Commission a
register of voters for State, Commonwealth and Local Government
purposes.
- to conduct Parliamentary elections and referendums in accordance
with legislative provisions and accepted electoral practices and to
ensure that officials at all levels are properly trained to perform their
respective functions.
- to assist, advise and conduct elections for specified statutory,
industrial and other organisations.
- to provide advice to registered political parties, candidates contesting
State and Local Government elections and the general public on
electoral practices and Statutory requirements.
- to conduct Local Government indicative polls as required by the
Minister of Local Government.
- to research electoral practices and trends and to develop appropriate
community education programmes.
- to develop improved and cost efficient electoral methods and
practices.
Such functions are crucial components of the quality of access of the citizens. In more
recent years, and especially after the re naming of the State Electoral Department as the
State Electoral Office in 1993, the roles of the Electoral Commissioner and of the SEO
have been broadened in important ways and directions from the original task of
"administration". The mention in the Objectives above of functions of "advice ... research
... education ... publication" are all central aspects of the modern developments in the area
of improved access.
15-3 Staffing
The size of the staff of the SEO is essentially decided by government, either through the setting of
maximum staff levels, or by the allocation of a maximum level of funding under which the Electoral
Commissioner has some "room to move". A government committed to "best quality" in terms of the
roles of the SEO will provide the staff and the facitilities necessary for this to be achieved at the
optimum level. A government which places these functions lower in its priorities will be more
parsimonious in regard to finances. To this extent, then, the quality of the administration of elections,
and the crucial roles of advice, public education, research etc., are decided by the party in government.
It is the case that the SEO and its predecessors have always sought to administer elections at the
highest level. But they have also had budgets which do not allow the full development of the quality of
performance of the other key roles.
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15. State Electoral Office
On the other hand, the nature and quality of the staff of the SEO is a matter for the Electoral
Commissioner. A prime consideration in this area is a recognition that the SEO and its staff are not
engaged in any party political processes, but are engaged in the dispassionate administration of
elections, of the Electoral Act, and of all aspects of the democratic election process.
The SEO firmly applies a code of conduct, a limitation on political activity by its permanent
and contract staff.
In order not to compromise the strict neutrality of the Agency, no
person who is active in political affairs and intends to carry on this
activity may be an employee.
A code of conduct is incorporated on all appointment forms used by the SEO, and all
prospective appointees are required to sign. In the 2002 election process, there were even
enquiries from intending officials concerning any potential conflict of interest in terms of
an appointment as a JP.
Further, there is an important statutory statement in the Electoral Act (EA 1985 No. 77 S 13).
(1) No candidate or person holding an official position in a political
party may be appointed as an officer.
(2) If an officer becomes a candidate, or accepts an official position in
a political party, his or her office or position is vacated.
As noted earlier, the early Colonial administration of the Electoral Act and of the elections
was in the hands of the Returning Officer. There is no material which has survived to provide
information as to the staffing of his "office" - if any.
The Annual Report of the State Electoral Office for 2001-2002 shows the staff in the
modern "headquarters":
Executive
Electoral Commissioner
Deputy Electoral Commissioner
Elections Branch
Eight Staff
Corporate Services
Eleven Staff
(including the Electoral Education and Research Officers)
An examination of the list of the increasing and widening roles and functions of the SEO suggests that
such a level of staffing is the absolute minimum for the responsibilities, even below the minimum for an
optimum "service" of the broad functions set for the agency.
In fact, this report argues strongly that the existing staffing complement should be enlarged. The
tasks and functions of the SEO are not widely understood by the general public. Probably the only times
when the individual voter comes into contact with the SEO are at the time of enrolment, at times of
change of address, and, in the most "public" contact, at times of elections. Hence it is not widely
appreciated that the SEO has a permanent existence, and on-going functions.
The demands and pressures on the SEO have been extended markedly in recent years, to
incorporate the conduct of all local government as well as parliamentary and non-government elections.
The roles and functions of the SEO have increased and widened as an independent agency of
government with responsibilities and accountabilities to the community, the taxpayers and the electors,
as the arbiter on, and upholder of, increasingly complex electoral matters. As well, the SEO faces ever
higher expectations for the efficiency and effectiveness of free and fair electoral processes.
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15. State Electoral Office
As important, in terms of the quality of democratic representation, is the function of electoral
education. The charter to "develop appropriate community education programmes" involves a potentially
huge task. One reason is that electoral education, broadly defined, is being provided by almost no other
organisation in the South Australian society. The political parties do not see their roles as including
education - their prime aim is to socialise voters to support them and their policies. The formal education
systems contain little content concerned with "education for representative democracy", let alone
electoral education.
The charter responsibility given the SEO is a massive task. In the structure of the SEO, alone, there
are strong grounds for more resources. The grounds become even stronger on the basis of a
comparison of the "Objectives" of the SEO and the resources granted to it.
There is a crucial community benefit from the existence of the State Electoral Office which is able
to perform it broad roles with the maximum of efficiency and effectiveness. The electoral processes are
the foundations of a democratic society. The SEO is committed in the allocation of its resources to the
administration of the electoral processes of the State. These must have the first call. Without the proper
resources, the SEO cannot carry out its broader functions and roles to the level of quality which the
modern society demands of it. The problem is that the SEO and its electoral and democratic functions
are not "vote-pullers" for political parties and governments. Hence the agency remains under-resourced.
This should be dealt with.
The SEO, as a part of the public structure of the Parliament and Government of South
Australia, is a publicly funded component. However, it also can achieve an income through
its operations. The 2000-2001 and 2001 - 2002 "balance sheets" showed:
Revenue from government
Operating revenue
Operating expenses
(Note: 2002 was an election year).
2000-2001
($’000)
2001-2002
($’000)
2 174
1 045
4 160
7 166
820
8 145
The operating expenses of this level works out at less than $5 per head of population - a minor
expenditure in terms of the continuing importance of the SEO in terms of the processes of
representative democracy in South Australia.
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16 Participation Issues
16-1 Introduction
Participation in the wider electoral processes can take many forms, not merely the "standard"
measure of the level of turnout at elections. For example: (i) membership of, and
involvement in the electoral activities of political parties; (ii) active involvement in pressure
groups, especially in election campaigns; (iii) individual contacts with members and
candidates. In fact, the model of an ideal democracy is based on ideal democratic citizens
who are aware, informed, motivated, and active in all levels of political life.
Such ideal democratic citizens have been a small minority in Australia. In fact, if there is such a thing as
a broad political culture, that of Australia is characterised by a combination of apathy towards politics,
and a scepticism, even a cynicism, about political institutions and actors.
Many of these broader components of participation are peripheral to the focus and basis of this
report. However, as noted above, in recent years there has been a growing emphasis on the role of the
electoral jurisdiction in regard to education and research. There is a great need for both - although
especially the former.
Returning to the "narrow interpretation" of participation - turnout - there are two issues
which are relevant to any discussion of access to the electoral processes: voluntary enrolment,
and "compulsory voting".
16-2 Voluntary enrolment
From the first election to form a full parliament in 1857, enrolment was voluntary. It remains
so today, with South Australia the only State or Territory which has maintained this "right"
for the citizen.
The use of "right" is important, as there is a strong case for enrolment to be
compulsory and "for life". In some nations, notably the United States of America,
registration to vote (enrolment) is a matter for each individual adult, at the time of each
election, and this builds a barrier to full participation, and to access.
... because the burden of registration ... rests on the individual, and states
still have considerable say in their electoral law, registration and turnout
remain abysmally low. The right [to vote] is less likely to be exercised
than elsewhere (Harrop and Miller 1987: 44-45).
In the election systems of the Commonwealth and the other States and Territories in
Australia, the "burden of registration" has been taken over by the Government. Compulsory
and permanent enrolment removes the barrier of having to establish a formal "right to vote"
at each election, and guarantees that, for every election after the initial enrolment, that right
is maintained. There is a requirement on electors to notify the SEO of any change of name,
address or gender.
There is a strong case for the South Australian legislation to also include compulsory enrolment "for life",
and hence not only provide the benefit, and bring the State into conformity with the rest of Australia, but
to provide for greater access, particularly for the young.
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16. Participation Issues
In 1855-56, the Act (EA 1855-6 No. 10 S 6) used the following wording concerning
enrolment: "all persons ... entitled to vote". Following the election, the Act was amended to
the following (EA 1857 No. 12 Ss 7, 8).
Between the first day of March and the thirty-first day of March in every
year the Town Clerks of Corporations, the Clerks appointed by District
Councils ... in such part of any electoral district or division within the
respective limits of any Corporation or District Council, and in such
part of any such district or division without such limits, then the police
shall cause to be left at the residence of every person within the district,
a notice ... requiring all persons entitled to vote in the election of
Members of the Legislative Council and House of Assembly, to fill in
and sign the notice of their claim to be placed on the electoral roll ... and
the occupier is hereby required to give notice to all male persons, of the
age of twenty-one years and upwards, resident at such dwelling-house, of
the receipt by him of such form of claim, and that they are required to
fill up and sign the same;
An example of advertising used to encourage enrolment to vote in the
February 2002 SA State election.
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16. Participation Issues
The "notice" included these words.
Take notice, that you are hereby required to make known to every male
person, of the age of 21 years and upwards, resident in your dwelling
house at the date of the receipt thereof, that they, and each of them, are
to insert their names in the following schedules, in order to entitle them
or him to vote (Schedule C).
Despite the use of words such as "they are required", enrolment was a voluntary act. It
remains so.
By 1985, the wording of the Act was still "entitled to be enrolled" (EA 1985 No. 77
S 29). At the same time, the joint State - Commonwealth arrangement on rolls (see above),
had the effect, for all but a few citizens, of "compulsory enrolment". Most citizens, when
enrolling, or seeking provisional enrolment, filled in the "joint" application card, and do not
delete themselves from enrolling for State elections.
The Act specified (S 28) that the rolls contain:
(a) names and particulars of persons who are enrolled as electors of the
Commonwealth but not as electors of the State, provided that those
persons who are not enrolled as electors for the State are clearly
differentiated;
(b) distinguishing marks against the names of persons enrolled as State
electors but not as Commonwealth electors to show that they are not
enrolled as Commonwealth electors (EA 1985 No. 77 S 28).
Once enrolled, the elector must maintain his or her enrolment, that is, remain enrolled for
life - a positive component in relation to access.
16-3 "Compulsory voting"
A comment is necessary to explain the term "compulsory voting". There is, in fact, no such compulsion.
The voter, under Australian law, is required to attend the polling place and "have his or her name ticked
off". There is no compulsion to vote, nor can a democracy ever enforce such a "duty". To attempt to do
so would be an invasion of the secrecy of the ballot. "Compulsory voting" is, in fact, compulsory
requirement to obtain a ballot paper, either by attendance or, increasingly in modern times, by other
means. But the phrase "compulsory voting" will be used in this report as it is part of the language of
electoral politics.
The issue of "compulsory voting" in South Australian elections has involved four phases.
The first was the period from the inaugural election in 1857 until the 1930s. There was no
suggestion that voluntary voting should be abolished. The second phase, from the
introduction of "compulsory voting" for Commonwealth elections in 1924, involved a series
of debates in the Parliament about its introduction for South Australia. The third phase was
the introduction of "compulsory voting" in 1942 for the House of Assembly, and in 1985
for the Legislative Council. The final phase, continuing today, involves attempts, mainly by
the Liberal party, to return to voluntary voting. This last point has, as yet, no statutory basis,
and hence is not included in this report.
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16. Participation Issues
The first elections for the "Hybrid Legislative Council" in 1851 and 1855 used the
words that every " elector entitled to vote ... may vote". This principle was incorporated for
the first election for the Parliament; the act of voting was voluntary. The first Electoral Act,
which set the process for the first election in 1857 (EA 1855-6 No. 10 S 29), included the
words "every elector entitled to vote, and who shall vote in the election ...". The "shall"
referred not to a compulsion to vote, but was a synonym for "does".
This right to vote continued until 1942, when the Electoral Act was amended (EA 1942
No. 37 S 3) to impose a compulsion: "It shall be the duty of every Assembly elector to
record his vote at every election ...". The Act required the returning officers in each Assembly
district to "prepare a list of the names, addresses and descriptions" of voters "who have not
voted’, and to send a letter to each person "calling upon him to give a valid, truthful and
sufficient explanation of his apparent failure to vote" - unless there was evidence "that the
elector is dead; or was ineligible to vote at the election". If the returning officer was not
satisfied with the explanation, a penalty of "Not less than ten shillings and not more than
two pounds" could be applied.
From the beginning in 1942 the Electoral Act included a reference to an alleged compulsion
to vote. This was expressed in such phrases as "duty ... to record his vote", a list of "voters
who had not voted", and "apparent failure to vote". This wording has been maintained to
the present day. The current Electoral Act (EA 1985 No. 77, as amended), still contains the
wording (S 85 (1)).
Subject to subsection (2), it is the duty of every elector to record his vote
at each election in a district for which he is enrolled.
However, subsection (2) states:
An elector who leaves the ballot paper unmarked but who otherwise
observes the formalities of voting is not in breach of the duty imposed
by subsection (1).
Hence there is no compulsion to vote. The Act continues, in subsection (3) to require that
the Electoral Commissioner "shall send a ‘show cause’" letter to every elector who "appears
to have failed to vote".
The wording of this section is internally contradictory. In one place, it states a duty to vote; in another,
it recognises that a "non-vote" is "not a breach". The former gives the impression that there is
"compulsory voting"; the latter recognises that a vote cannot be compelled. The wording should be
clarified by an amendment which establishes, in the clearest possible wording, the actual "duty" of the
elector.
The requirement on each elector is that he or she must attend a polling place - or utilise any
of the declaration options (see above), to ensure that his or her name and address is checked
and "marked off" as having obtained a ballot paper.
This wording, and the contradiction, have been retained for two reasons. The first is that all of the official
participants in the process of an election desire the highest level of turnout, and the highest rate of
formal votes – the SEO for the "quality and health" of the election process; the parties to maximize their
potential for votes. The former is altruistic; the latter self-interested. The former is a worthwhile aim, but
is it correctly achieved by a statement of a "compulsion to vote" which does not exist in fact?
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16. Participation Issues
The second reason is simple party self-interest. All political parties naturally seek to obtain the
highest level of support for themselves. Hence maintaining the fiction that there is a compulsion to vote
ensures that most voters will "attend" and will vote. Party self-interest is no justification for any
component of a democratic election system.
To return to the introduction of "compulsory voting", the 1942 Act was a major change in
the nature of elections for the House of Assembly, and hence a detailed commentary on the
speeches in the Parliament is warranted.
The Bill was introduced to the Assembly on 27 August 1942 (SAPD HA 1942: 489)
by Liberal Member, HH Shannon: "This is the fourth occasion on which I have attempted
to convince hon. members that they should do something about it". EG Whittle (LCL)
expressed what became common reasons for the proposal (SAPD HA 1942: 492).
Years ago I held an ideal on the question of compulsory voting which I
thought should be shared by the majority of electors. Under our system
of democracy, we have rights, privileges, and responsibilities, and if they
are given proper recognition it should impel people to realise their
responsibilities and go to the poll without compulsion. Unfortunately it
has been evident in State elections that the public do not apparently
appreciate the right and privilege of sending representatives to
Parliament, and consequently they neglect to exercise their franchise. Yet
these same people are generally among the most self-assertive critics of
our Parliament. I have previously stated that the feeling has grown up
among a certain section of the public in South Australia that, because
they are not compelled to vote at State elections, they can look upon the
State Parliament as something of secondary importance ... When
canvassers call upon people, the first question generally asked is " Do we
have to vote?" and if told that they have not, their interest seems to wane
immediately ... I am influenced to support compulsory voting because of
the larger percentage of informal votes in this State compared with the
other States ...
I feel that if compulsory voting were introduced at State elections ... the
people would gradually develop a voting sense as has been done by voters
in other States ...
in a large percentage of cases Legislative Council elections are conducted
at the same time as Assembly elections, and if it is compulsory for
Assembly electors to go to the poll they will receive at the same time their
Legislative Council voting papers, and I think the majority would
exercise their franchise.
Succeeding speakers took up these issues. RW Pearson (Liberal) agreed that
We are all concerned with the apathy displayed by electors ... It has been
suggested that compulsory voting is the corrective. Although I agree that
it is desirable and even necessary, I cannot agree that, of itself, it is an
absolute corrective (SAPD HA 1942: 493).
Labor member, AV Thompson (SAPD HA 1942: 677 - 8) supported the Bill "because it
contains subject matter which is very satisfactory to us". He continued:
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16. Participation Issues
We should see that people in this State do their duty as electors. One
could wax eloquent regarding our rights under a democracy, but, put
briefly, I think we realise that the electors want the country governed by
people selected from their own elected representatives, and we want to
preserve that freedom. I appeal to hon. members not to vote against
compulsory voting because they believe in absolute freedom in
everything. While we stand for democracy and freedom, surely we believe
in all people accepting their share of responsibility. If the people claim
the right of democracy and freedom, they should also be ready to accept
the responsibility towards doing their part towards keeping the free
system in operation. Unless the people take an interest in elections and
in candidates we shall arrive at the position where we shall lose that high
sense of democracy which I value so much.
Opposition Leader RS Richards (Labor) used a different argument (SAPD HA 1942: 684 - 5).
[People] are compelled to subscribe to all manner of things which, if left
to their own choice, they would not subscribe to. Why do we do that? It
is a social responsibility. It is part of the system of government that the
minority should subscribe to the will of the majority. Until we get all the
electors going to the poll we have no guarantee that we shall get a
majority decision on any issue ... we are justified in asking every person
enrolled to accept his responsibility by expressing his opinion per
medium of the ballot box.
South Australia was the last parliament in Australia to apply such compulsion in elections hence one justification provided by the government for the amendment: "The Bill has some
virtue on the grounds on uniformity, and there is plenty of room for more uniformity in our
election system" (SAPD LC 1942: 976).
The speech on the Bill by E Anthony (Liberal) included further reasons to justify the
major change in the system of elections in South Australia.
The matter of voting masks a stage in the political progress of man. As
a result of hard work, and in some cases the loss of lives, political
privileges have been gained through many years of history ...
Now we are concerned more with trying to get people to vote. Both
before and after elections those intimately connected with organisations
represented at the elections are concerned about the apathy that exists in
the public mind regarding the great privilege of casting a vote. Our
democracy is being seriously jeopardised and it is felt that if people will
not freely exercise that great privilege they should be made to realise their
duty by being compelled to vote. Of course, there is always the doubt
about the value of the act when people are compelled to do something.
We believe we are living in a democracy and because of that people are
given the right to vote at Parliamentary elections. The Party with the
majority of votes cast has the right to govern. The record of the votes
cast at elections over a number of years shows a progressive diminution
in the number of people who have gone to the poll ... Much difficulty
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16. Participation Issues
has been experienced by the big political parties in this State in getting
these people to vote. If it were not for the activities of political
organisations in pre-election work a greater decline would have shown ...
it is no use telling an elector that he must go to the poll unless we are
prepared to order a penalty for failure to record a vote.
The Bill is trying to bring the electors up to scratch ... I contend that it
is a moral obligation on the part of all citizens to go to the polling booth
every two or three years and do their duty by casting a vote.
The supporters of the proposal were aware that the compulsion they were introducing was
not, in fact, a compulsion to vote - to mark the ballot paper: "Should a man be forced to
cast a vote for a candidate for whom he has a great dislike? However, if he is compelled to
vote and he casts a contemptuous vote, that gives that blank vote some significance". Hence
the overall rationale for the amendment:
If we cannot get electors to vote, then in order to enable that democracy
under which we live to function we should use some other means. We do
not like compulsion applied to anyone who has these moral rights which
should be availed of without pressure. The whole question resolves itself
into what is a practical expedient. We cannot say that it is a man’s right
and that he should do what he likes with it; it is a duty. If he does not
exercise it and the whole community suffers, we must come down on the
side of expediency and weigh the advantages against the disadvantages (E
Anthony, Liberal, SAPD HA 1942: 976).
The Act imposed a fine for "non-voting" of "Not less than ten shillings and not more than
two pounds (EA 1942 No. 37 S 11). One year later (EA 1943 No. 30 S 2), the maximum
penalty was increased to "not exceeding twenty pounds".
The second reading of the Bill was passed without division. "Compulsory voting" was
first applied at the Gouger District by-election in 1943, and at the 1944 general election,
and remains in force.
The provisions in regard to "failure to vote" were clarified in a minor amendment in
1969 (EA 1969 No. 50 S 31). As government’s explanation put it (SAPD HA 1969: 807),
there was a case for
relieving the Returning Officer for the State from having to ask for
reasons for non-voting when he is already satisfied that the non-voter
had a valid and sufficient reason. This provision will result in a
considerable saving of time and money.
The procedures were clarified further in 1973, when the responsibilities of returning officers
in regard to non-voting, except for the preparation of lists, were transferred to the Electoral
Commissioner (EA 1973 No. 49 S 6). In 1982 (EA 1982 No. 24 S 8), the Act was
amended so that
[t]he Electoral Commissioner may cause to be served personally or by
post on a person who is alleged to have committed an offence ... a notice
to the effect that he may expiate the offence by payment to the Electoral
Commission of an amount ... fixed by regulation ... if so expiated no
proceedings shall be commenced in a court.
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16. Participation Issues
The enactment of a new, consolidated Electoral Act in 1985 (EA 1985 No. 77) included a
separate Division of the Act (Division V1) relating to "Compulsory Voting". This
consolidation included the statement of "the duty of every elector to record his vote" (S 85),
and that "An elector who leaves the ballot paper unmarked but who otherwise observes the
formalities of voting is not in breach of the duty" (S 85). In fact, the South Australian ballot
papers are unique in Australia in that they contain the statement "You are not legally obliged
to mark the ballot paper". This emphasises the contradiction within the subsections of the Act.
This Act also introduced "compulsory voting" for the Legislative Council for the first
time, in a simple clause (S85 (1)): "... it is the duty of every elector to record his vote at each
election in a district for which he is enrolled".
The offence of "non-voting" was established as "fails to vote at an election without a
valid and sufficient reason ...". Any voter who fails to complete and return the "explanation"
form, or who makes any statement on the form which is, "to his knowledge, false or
misleading in a material particular", is guilty of an offence (penalty $50). The "valid and
sufficient" reasons for non-voting were: ineligible to vote, absent from the state on polling
day, conscientious objection, "based on religious grounds", and "some other proper reason".
The penalties for the offence of "non-voting" were increased over time, from the
minimum of ten shillings and maximum of two pounds in 1942 (EA 1942 No. 37), to $2
to $8 in 1969 (following decimal currency) (EA 1969 No. 50 S 31), to $4 to $20 in 1981
(EA 1981 No. 35 S 60), to $50 in 1985 (EA 1985 No. 77 S 85). The 1997 Act (EA 1997
No. 22 S 27) introduced an expiation fee of $10.
The "principle" of "compulsory voting" is strongly supported by most political parties in South Australia.
The Labor party has been its most consistent and strongest supporter, with one reason a concern in the
party that, if "voluntary voting" was permitted, it would probably be Labor supporters who stayed away
from the poll. The Australian Democrats have also been committed to "compulsory voting", for a similar
reason. Surveys have indicated that many votes cast for the Democrats are on the basis of a "protest" or
"haven" vote - against the major parties. The concern of the Democrats has been that if voluntary voting
was permitted, these voters would simply not vote. The Liberal party was a strong supporter of
"compulsory voting" until the mid-1980s, when its policy changed to support voluntary voting.
Is "compulsory voting" justified as a positive component of a system of representative democracy?
Does it increase the access of citizens to the electoral processes? One way to answer this is to return to
the reasons stated in 1942 for its introduction.
The positive results predicted at the time included an assertion that "compulsory voting" would
overcome and reverse the growing apathy in the community. In fact, it can be argued that "compulsory
voting" has contributed to increasing apathy! Under "voluntary voting", the electoral agency, the political
parties, the candidates, the involved pressure groups, all recognise and perform an important task - they
attempt to convince the citizens that they should be interested, involved and, above all, should turn out
to vote. Under "compulsory voting" in South Australia, this task is left exclusively to the State Electoral
Office. The other formal and informal participants take no responsibility for this educative function.
Turnout is "forced" by the "compulsory voting", and the sanction which can be applied. This provides no
"cure" for apathy. Overall, the most accurate comment about the effects of "compulsory voting" is that
compulsory voting has not contributed to the serious political education of the
electorate; it may even have discouraged it (cited in Smith 1983: 251).
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16. Participation Issues
"Compulsory voting" has achieved one of the aims set out in 1942. It has ensured that the
turnout in South Australian elections is among the highest in Australia (where "compulsory
voting" also applies) and in the world (where "compulsory voting" is enforced in only very
few democratic nations). In one sense, then, "compulsory voting" has brought an increase in
the participation of citizens. It has ensured that the election of representatives of the people,
and the subsequent formation of parliaments and governments, is based on a high level of
turnout. It has ensured that the parliaments of South Australia have rested on the votes of
the overwhelming majority of the citizens.
Its introduction and retention have provoked a long-running debate about its
"democratic value". Many analysts and commentators have prepared scholarly studies on the
topic. The "for and against" table by Colin Hughes is the best available summary of the
arguments (Hughes 1966), including those made in the debates about the introduction of
compulsion.
For
Democratic government means majority rule and an expression of an
opinion by a majority of electors.
Voting is analogous to other duties society requires of citizens, such as
giving evidence in court proceedings, jury service, paying rates,
compulsory education or military service.
Voting is the most important civic duty, yet the burden is extremely light:
once or twice every three years.
The voter is not compelled to vote for anybody; he can always spoil his
ballot. He is merely compelled to go to the polling booth.
Compulsory voting is a necessary corollary of compulsory enrolment
without which the expense and penalties of compulsory enrolment
would be pointless.
Compulsory voting would stop the growing demand of voters who had
‘got into a loose way of voting’ for motor car transport to the polls.
Social pressure applied by the trade union movement had already
enforced compulsory voting of Labor supporters.
Turnout figures were too low, particularly in the post-war period.
The quality of legislation coming from legislatures elected by a minority
vote would deteriorate, whereas ‘the fact that legislation was considered
by members representing a greater number of people hitherto would
have a good effect on the community’.
Compulsion would enforce political education.
The franchise had been fought for, and therefore should be used.
As individuals’ liberty consists in exemption from legal control, so
political liberty consists in participation in legal control.
Those who most readily criticize legislation are the least zealous in
exercising the franchise; they would be taught to be good democrats by
becoming responsible for public acts.
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16. Participation Issues
Against
Compulsion cannot ensure a formal vote or an intelligent vote.
Compulsory voting is an infringement of liberty. The state does not have
the right to compel a man to vote for a candidate with whom he does
not agree or in whom he does not believe.
It would be difficult to decide what constituted a sufficient or valid
excuse for not voting, and to give enforcement officers sufficient
discretion.
Compulsory voting is not the same as compulsory enrolment.
In early years it was argued that compulsion would not work. The burden
on electors in remote areas would be excessive.
There would be too much work in following up non-voters. No
government would have the courage to prosecute 10 000 non-voters. No
court would ever convict.
There was no justification for such an important change, no compilation
of evidence warranting it.
How can a man educate himself politically? By reading the Melbourne
press or attending the Yarra bank.
A member has a duty to all of his constituents, whether or not they
voted for him, or whether they voted at all.
The cost of administering elections will be increased.
The proportion of informal votes will increase.
To these points can be added the following. Compulsory voting places a strain on the resources of the
electoral administration to provide the facilities which flow from the modern interpretation of the public
responsibility to provide a "quality access". If all citizens are compelled to vote then, in terms of equality
and equity, there must be the provision of special facilities to those who cannot utilize the "normal"
method of voting, in person, in private, at a polling place. There is a financial implication.
On the other hand, if voluntary voting was re-introduced, then "economics" would also enter the
equation. Would there be the same commitment and reality of equality in terms of polling places and
"special provisions" under voluntary voting, especially if low turnouts occurred? Would the funding for
the "special" components of the electoral processes be maintained? Would it be the case, as some
assert, that some specific socio-economic sectors would be disadvantaged and would be less likely or
less able to turn out? Would this be a weakening of the application of the principle of equality of access?
Would the important extensions to a "right to vote", for example, as set out under the general heading of
electoral assistance, continue to be offered under voluntary voting? The experience of such nations as
the United Kingdom and the USA suggests that a voluntary voting system is very slow to incorporate
such reforms. It can therefore be argued that compulsory voting has played a role in extending the
quality of access for all electors.
If compulsory voting is assessed as having done nothing more than increasing turnout, and as
having no positive impact in terms of the quality of access of the citizens, nor any positive impact on
the quality of representation in South Australia, then the Electoral Act should be amended to return to
a right to vote - that is, a right to decide whether to "attend" or "not attend" at an election. If compulsory
voting is assessed as having positive effects (beyond and apart from the party benefits), then it should
be retained.
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17 Technology: Gateway to the Future?
To a significant degree, elections in South
Australia, as in the rest of the nation, are
based on very old-fashioned technology.
Enrolment is by details written on a paper
document. Electors are required to attend a
polling place to vote (except in cases where
the election comes to them). The attendance
is checked, by hand, on printed rolls on the
"authority" of identifying questions to the
voter. The mode of voting is pencil and paper.
Pre-poll and postal voting are by pencil and
This 2002 report examines developments in
paper. The count generally involves the
e-voting in various electoral jurisdictions.
physical checking of ballot paper by hand by
teams of officials – a time-consuming and
complex process.
The first attempt to introduce "modern technology" occurred in 1908 (EA 1908
No. 971 S 238).
(1) The Governor may, by order in Council and published in the
Government Gazette, direct that at any election a voting-machine
specified in the order shall be used by way of experiment, and such
order shall be complied with by the Returning Officer at such
election.
(2) By such order the Governor shall prescribe the mode in which the
machine shall be used.
(3) On the making of any such order the Returning Officer for the State
shall provide the Returning Officer with a sufficient number of
voting machines.
The marginal comment to this Section noted "N.Z., 29, 1905, s. 226" (New Zealand, Act
29 of 1905). However, there is no evidence that such "voting machines" were ever used.
In 1985 (EA 1985 No. 77 S 139) an Act authorised the Governor to make regulations
which
may - (a) authorise the use of machines or devices of a kind specified in
the regulations for the purpose of recording votes, and make any
necessary provisions regulating the use of such machines or devices, and
the counting of votes recorded by them.
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17. Technology: Gateway to the Future?
In 1997 (EA 1997 No. 41 S 4) the Act contained a new Division: "Computer Vote
Counting in Legislative Council Elections". This provision established that:
(1) The Electoral Commissioner may approve a computer program to
carry out steps involved in the scrutiny of votes in an election.
(2) The Electoral Commissioner may revoke an approval of a computer
program.
(3) The Electoral Commissioner may only approve a computer program (a) after providing a demonstration of the use of the program
for representatives of the registered political parties; and
(b) if the proper use of the program would produce the same
result in the scrutiny of votes in an election as would be
obtained if the scrutiny were conducted without computer
assistance.
The Act also provided for a checking process on the running of the program, and for a
"hand count" if deemed necessary.
The Government, in the second reading speech (SAPD HA 1997: 1809-10), noted
that
computers were used successfully in the scrutiny for the upper house in
the December 1996 Western Australian election ...
There are two products available which the Electoral Commissioner is
satisfied will produce the same result as a manual scrutiny, but with more
flexibility, speed and efficiencies ...
Each ballot paper will continue to be checked and re-checked manually
for formality and correct categorisation ...
Ballot papers completed below the line need to be manually keyed in ...
twice by different operators to ensure there are no data entry or number
errors.
In 2002, technology is increasingly utilized at a number of stages in the election process, for
example: scanning of bar-coded envelopes, electronic processing of declaration vote
certificates, and the capture of voting information on electronic data-bases. In the 1960s,
South Australia led the nation in developing computer-maintained rolls, and developed a
prototype roll-scanner in the 1980s. The use of facsimile and computer technology is
increasing rapidly. The former is currently used for Antarctic voters; this could be developed
further for other remote locations, including outback South Australia. The Australian
Electoral Commission is suggesting the potential of trials of internet voting. Postal vote
applications and enrolment forms can be downloaded by the public from the Internet.
There is a wealth of electoral information on the Internet, with all of the electoral
administrations maintaining their own Website.
The media inform the electorate about the election processes, especially with "live"
results on election night on the electronic media, and "real time" on the Internet.
These developments are burgeoning, with the electoral administrations deeply involved
in technological research. In his contribution to a conference in 2000 on Electoral Research,
Phillip Green, the Electoral Commissioner for the ACT, made this point:
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17. Technology: Gateway to the Future?
Many casual observers, whose only experience of the electoral process is
voting on polling day, come away with the impression that elections are
low-tech events. In fact, the low-tech nature of the voting and the
counting processes are the exception rather than the rule – these days
most Australian electoral processes behind the scenes make extensive use
of technology (2000: 97).
He outlined the areas of the most rapid development, including
- electoral rolls,
- election management systems,
- mapping systems for electoral boundary redistributions,
- office automation,
- scanning,
- electronic vote counting,
- the Internet, and
- information call centers.
He also painted an "electoral science fiction" word-picture of a "new-age polling place".
The elector walks in off the street and up to a terminal, much like an
automatic teller machine, and inserts her smartcard. The smartcard
registers that the person is entitled to vote for a particular electorate, and
checks that she has not voted before. A camera on top of the terminal
checks the person’s facial features, compares them to the details recoded
on the card, and verifies the person is the person named on the card.
A virtual ballot paper appears on the screen (Robson rotated of course).
The screen is tilted at 45 degrees, and the details shown on it are not
visible by anyone else around her. The elector marks her preferences by
touching the screen, and the screen prompts her to confirm her choice,
at the same time ensuring the vote is formal (although she could cast an
informal vote if she wants to). A help button gives the person any
information she wants. Other buttons display each voting ticket if she
wants to see them. Upon confirmation, the smartcard is electronically
marked to indicate that the person had voted in today’s election, so that
it cannot be used again.
The smartcard pops out of the terminal, and the message thanks the
voter for her participation.…
Meanwhile the elector’s vote has traveled down the network connection
to the central tally computer. It joins the many thousands of encrypted
votes coming in from all corners of the electorate, some of them from
dedicated data lines, some from shared phone lines, some from satellite
feeds, some from mobile phone communication towers.
The polls close, the computer program kicks in and 30 seconds later the
election result is in. Around the country, unemployed psephologists and
pundits sigh and look at the results on their Internet screens …
Fact or fantasy? Only time will tell.
214
17. Technology: Gateway to the Future?
The inauguration of "on-line" voting in Australia came with an experiment in the 2001
ACT election, where eight of the 80 polling stations used this technology. There is pressure
for this to be extended. As one commentator put it (The Australian 8 October 2002)
[m]any techno-literate liberals think e-voting and e-referenda will
increase participation in politics and allow more direct influence over
poiliticians. Electronic voting can be made available almost everywhere,
they say. It provides quick and easy access and makes counting simple.
The process becomes efficient with increased public participation.
There are crucial issues to be resolved before this futuristic concept could become a reality.
A fundamental issue is that of authenticity. Currently, the voter is identified by a series of
verbal questions, and a number of questions have been raised as to whether this is good
enough. With electronic voting, especially by remote computer, the issue of identification is
harder to resolve. As the Australian Institute of Criminology put it
[t]his would mean that organizations would need to enhance their
procedures substantially in registering voters, perhaps even requiring
some form of biometric identification … such as a fingerprint or retinal
image … to be used before a key token was issued.
The secrecy and the security of the vote would have to be guaranteed. At present, with "hardcopy" votes, there are many safeguards, not the least being the presence of electoral officials
and scrutineers. Electronic means to replace these functions, in fact, to improve them, would
be necessary.
There is certainly a rapidly growing interest in such technology. In 2002, the Parliament
of Victoria inaugurated an inquiry into "Electronic Democracy", including "netcasting" of
parliament, electronic voting, and "fair access of all citizens to e-democracy." A "Status
Report" of a joint inquiry by the AEC and the Victorian Electoral Commission (2001) has
canvassed arguments for and against: Voting at polling places using computer equipment;
touch screens; voting using the internet; and electronic vote counting. Certainly the use of
computers has grown apace in Australia, as has the use of the Web. The on-line broadcast of
the 2001 Federal election attracted 5.6 million hits on the election night.
One problem of achieving a full electronic election process will be the cost. An
Australian election involves about 9 000 polling places, and the electronic hardware would
hardly be cost-effective if used only for that purpose.
There is no doubt that "e-elections" will be the future. Further, the potential for this
technology to increase the range, and the quality, of the access of the electors, is sufficient
for the emphasis on its development to be continued.
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18 Conclusion
In one sense, the political history of South Australia is similar to that of the other States - the
inauguration of a limited form of representative democracy in the 1850s (1890s in Western Australia),
which slowly and haltingly developed into the modern structures and processes.
In South Australia, the "paradise of dissent", there was a unique component in the early
development stage: a strong element of liberalism, even radicalism, which produced Australia’s (and,
arguably, the world’s) most democratic constitution in 1856. This system included the right to vote for
all male citizens, including Aboriginal males. This element continued into the 1890s, with the grant of a
right to vote for women, the first in Australia, and through the reformist drive of Charles Cameron
Kingston.
The 150 years from 1850 can be described in terms of a steady trend of improvement in the quality
of the access of citizens to the electoral processes. This report has documented this progress, through
the Electoral and Constitution Acts, and the debates on them in the parliaments.
In general, it was clear that for most of the members of the parliaments, and for most of the
innovations and amendments carried, that there was a serious commitment to the principles of
representative democracy. It has also been shown that some components of the political process were
far from disinterested "seekers for reform" on behalf of the electors. The political parties, especially, have
indicated since their formation that their interpretation of what constitutes a "fair electoral system" is the
one which will be incorporated into the Constitution and Electoral Acts. The various Bills and subsequent
Acts need to be interpreted within the historical environment - the nature of the democratic political
culture, of the democratic political thought, and the democratic practices of the time. Judgements need
to be made with these contexts in mind.
Some components of representative democracy in South Australia did not develop a modern
principle and form until very recently - in fact, in some cases, later than most, if not all other States. The
electoral malapportionment and the restricted, property franchise for the Legislative Council - the denial
in the latter of "one person, one vote", and in both of "one vote, one value" - were the most obvious. But
on most other components of a democratic representational system, the contribution by the South
Australian legislators and electoral administrators can be assessed as, and in some aspects better, than
in the other States.
In 2002, the voters of South Australia have a system of representative democracy which offers
them a very high quality of access. But this is not to say that their "electoral rights" cannot be further
improved.
To elaborate on this, it is necessary to re-state the broad principles which were set out in the
Introduction as a basis for evaluation of the legislation, 1851 to 2002.
(i) Did the legislation exclusively establish and/or improve the "public interest" of the
electoral system, or did it include elements of "private interest"?
(ii) Did the legislation provide for equality of electoral rights and electoral access for all
citizens?
(iii) Did the legislation provide for both "freedom to" - the right to vote, and "freedom from"
- the protection of the security and secrecy of the vote?
The first question must be answered by including an element of both public and private interest.
In the overwhelming majority of the Bills introduced, there was a clear commitment to the public
interest, and to a concept of a representative system for, and on behalf of the voters. The legislation and
the legislators constantly reflected a commitment to a fair (within the contemporary context of principles
of democracy) and a "clean" electoral system.
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18. Conclusion
In one element - the introduction of the unique "truth in political advertising" legislation, the
modern legislators have taken South Australia well into the forefront of fair and democratic election
processes, and have set a guideline for the rest of Australia. But, on the overwhelming majority of the
elements of the Electoral Act and the Constitution Act, South Australia is certainly comparable with the
other jurisdictions.
At the same time, there is one element of "self-interest" which has, from the early part of the 20th
century, increasingly dominated the legislation and hence the principles, practices and processes of
elections in South Australia. However, this is, in fact, a national phenomenon.
Political parties form governments in South Australia. Hence political parties propose legislation,
and decide which legislation will be passed into law. The fact that the current parliament is a "hung"
parliament may modify the processes within the parliament, but the key component is still present: it is
party and party-as-government which set the principles, policies, structures and processes of
representative democracy in the State. Further, the major parties, Labor and Liberal, dominate this
process.
The result is evidenced in many of the major components of the electoral processes. The insistence
of "compulsory voting" by the Labor party and the Australian Democrats - and most other parties - is a
matter of party interest, quite separate from the question of whether "compulsion" increases the
democratic nature of elections, let alone increases the quality of the access of the voters. The recent
change of policy by the Liberal party to support voluntary voting can be interpreted as a matter of
principle - supporting a recognition of the (electoral) rights of the citizens - or as a decision based on
accepting the Labor view that it would be Labor supporters who would be more likely to absent
themselves. The correct answer is probably a combination of both. Equally, the commitment to
compulsory preferences is a constraint on the rights of the voters for purely party self-interest.
The retention of a malapportioned election system for both houses until the late 20th century was
a clear case of the self-interest of the parties which supported it. As the examples in the text of this report
indicate, the questions of "one vote, one value" and of a fair and equable electoral geography were
decided by the Liberal party on the basis of no other factor than the benefit to the party. Equally, Labor’s
commitment to "population as the sole basis of distribution" recognised that its interests would best be
served by such a system.
Throughout the various sections of the Electoral Act, there is party self-interest - either through
commission, or by omission. The refusal of the parties to accept the Tasmanian system of "Robson
rotation" of names on ballot papers is based on the parties’ interests in the value of how-to-vote cards
in ranking party candidates in order, and hoping the voters will follow. The refusal to accept optional
preferential voting is also a matter of party self interest in the outcomes of elections.
For the first 40 years of representative democracy in South Australia, there were no political
parties. The proposals for the reform of the Electoral Act did not involve party policy, party ideology and
party self interest. Of course, there were policy positions, political ideologies, and self-interest - of
individuals and groups and "interests". But this period also saw the strongest development of the
"democracy" of the electoral processes in the history of the State.
In terms of the electoral processes of South Australia, the political parties, especially the two major
parties, are ubiquitous and almost totally dominant. For this reason, there have been proposals for
innovations in the political system to provide more input, even power, to the voters. One case in point
in the growing support in the community for Citizen Initiative Referendums.
217
18. Conclusion
As the keystone democratic principles of representative parliament and responsible government
are perceived by many voters to be under attack by the domination of disciplined political parties, there
has been support for this variant of "direct democracy". The CIR system effectively by-passes both
parliament, and the control of parliament by political parties. There are variations of the concept of a CIR,
but, in essence, it involves a proposal by a citizen or group of a policy which, if it receives a threshold
of support by means of a petition, is put to the voters in a referendum. Under a commonly-used model,
if carried, the parliament is bound to enact the policy into law.
The documented increase in the proportion of the electorate which is apathetic, sceptical, even
cynical, about the political structures and processes in general, and about the "products" of the election
processes, is a further comment on the domination of political parties.
Overall, in terms of the "public" versus the "private" aspects of the electoral structures and
processes in South Australia, a reasonable conclusion is that while there are important elements in the
Act which derive from, and reflect, the former, there are elements which are essentially "private", party
self-interest.
The issue of the equality of electoral rights and access for all citizens is one which can in the main,
be answered with praise for the South Australian system. This element of this component has a long
history. The grant of full manhood suffrage for the House of Assembly from the inauguration of
representative democracy in 1857, and the grant of full adult suffrage in 1894, established a democratic
right to vote, and to stand as a candidate, for South Australians in the vanguard of the world. The very
late grant of adult suffrage for the Legislative Council, and the very late application of a fair
apportionment for both houses, was a "stain" on this democratic history. However, the modern electoral
system does offer a full and fair franchise, with an increasing concentration on the means to offer ease
of access to the vote to all people, regardless of circumstances. The facilities of declaration voting in its
many forms, mobile polling, institutional visitors, and the like, have created a system with close to the
maximum access. There is not only a right of access to the electoral processes, but a clear effort to
provide an equality of such access.
There needs to be more attention to the principle of a uniform electoral process across Australia.
At the moment, there are nine different sets of electoral laws, differing modes of voting and different
means of translating votes to seats, and different election processes. This does nothing except confuse
the voters. Of course, reverting to the first issue (above), the reason for the variations is essentially that
of party policy and party self interest. There is a solid case for South Australia taking the lead in any
process towards further uniformity.
One component of the party involvement in elections needs urgent reform. There is anecdotal
evidence that the use of "how to vote" cards, the gauntlet which forms outside polling places, and the
style of the party workers, has become to be seen by many voters as harassment, even intimidation. The
introduction of the "Robson rotation" would solve this problem immediately. In the short-term, however,
there could be amended rules about the use and abuse of the "how to vote card phalanx" - possibly by
specifying that such activity cannot take place within the precinct of a polling place.
Further, there is a need to examine the claims of some political parties concerning the validity of
such cards. Anecdotal evidence suggests that many voters are confused - to the point that some believe
that unless a party card is followed, the vote is informal. Hence the cards, and the media publicity from
the parties, could include a disclaimer of such an interpretation.
The principle of an equality of access to the electoral process raises the issue of the voting system
which would best provide that result. This, of course, is central to party self interest. The Hare Clark
variant of proportional representation provides the greatest element of representation of the diverse
views - and parties - within an electorate. In the single-electorate system, as in the Legislative Council -
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18. Conclusion
it also deals completely with the issue of "one vote, one value". There needs to be a debate about the
introduction of Hare Clark to the House of Assembly but, as both Labor and Liberal remain implacably
opposed to the concept, it is unlikely to occur.
The third general issue involves the combination of a right to vote and the security of that vote.
The right to security and secrecy of the vote has been a constant emphasis from the first Electoral Act.
This could be improved by the introduction of a secure "voter card", either "standing alone", or as part of
the broader identification processes of public life in the State. There seems to be no other way to
guarantee the principle of "one person, one vote", and the security of that vote. In the long run, with the
development of technology, the act of a vote may be in electronic format. In that case, the question of
security becomes even more important.
There is a right to vote for South Australians. But the Electoral Act imposes the contradiction of
"compulsory voting" with the right not to mark the ballot paper. As noted above, the "compulsion", in
reality, is a compulsion to "attend" - to have one’s identity checked, and to receive a ballot paper. This
"compulsion" should be recognised in the Act for what it is - the references to any alleged compulsion
to vote should be deleted. In fact, to conform with the principles of the greatest possible right within a
democratic system, any reference, even to "compulsory attendance", should be deleted from the Act. The
voters of South Australia should have the right to "voluntary voting".
Both the concept of a right to vote, and the principle of a secure vote, depends to a very great
degree on the presence of an electoral administration which has both the authority and the commitment
to guarantee and protect these democratic components. Here, South Australia has been well served from the earliest days of representative democracy. The absolute commitment by WR Boothby - over a
period of half a century - set a standard which has been maintained by his successors.
The slow development of a "one-man" organisation into the modern structure of the State Electoral
Office has, at all times been characterised by efficiency, effectiveness and independence. There has never
been any substantiated criticism of the administration of the electoral processes in South Australia - a
comment on the dedication and commitment to the principles of such an important component of any
democracy.
However, as noted in the text, this commitment needs to be matched with resources. As the role
of administration has been broadened and extended into such areas as electoral education and research,
and into an involvement in elections other than its "core" focus of parliamentary elections, there is a need
for more staff and more resources. This is most crucial in the area of "electoral education for
participation" - a real requirement in the society - where the SEO has had to take almost an exclusive
responsibility.
If South Australia wishes to retain a State Electoral Office with its current level of probity, efficiency
and effectiveness, let alone with extended responsibilities, then the Government and parliament must
recognise their responsibility to provide the necessary funding.
As noted in the Introduction to this report, the focus has been on the legislative basis of the
electoral structures and processes. This analysis has not included the other side of the "equation" - the
extent to which the citizens of the State utilise these structures and processes to achieve the maximum
benefit from them. It is true to say that the South Australian electorate, like the broader Australian
electorate, is not characterised by a high level of interest, activity and participation in the political
process. This is reflected, unfortunately, in the electoral processes.
To explore this further involves a different research base. It needs to be emphasised that there is
a reluctance on the part of most participants in the electoral processes to be involved in any form of
public education which would change this culture. Hence the SEO has a major responsibility: it should
not be expected to carry it out without sufficient resources.
219
18. Conclusion
The progress toward a democratic election system in South Australia has been relatively continual.
On some issues, SA led the nation, such as male suffrage, then adult suffrage, the development of
programmes to assist voters in their access to the election process, and a very reputable electoral
administration. On the other hand, progress was very slow, if at all, on some components, especially
where a political party had a vested interest in resisting reform, such as the introduction of adult suffrage
for the Legislative Council and one vote one value in the House of Assembly, where South Australia was
among the last of the States to grant these essential rights.
The theory of democracy is based on the principle of the sovereignty of the people. South Australia
is within the broad group of parliamentary democracies, based on representative democracy and
responsible government. Hence the theory of democracy as popular sovereignty is diluted by the
representative component. Only in referendums and, strictly, only in a citizen initiated referendum
process, can the people exercise real popular sovereignty.
That is why the keystone of any representative democracy is the election process. Again, in the
theory of democracy, the people "own" the elections, and utilize them to decide who will be their
representatives. There is therefore a potential tension between the democratic interests of the public in
relation to elections and the partisan interests of the governments and parliaments which establish the
formal and informal framework for the elections. In the main, with some very notable exclusions, the SA
governments and parliaments have designed and re-designed election systems with the democratic
interests of the people well into the forefront. They need to be constantly reminded that it is the public
interest, not the self-interest of the parties, which is paramount in a democracy.
The task for government and, parliaments is to continue along the path to democracy in the
Constitution and Electoral Acts, especially in the areas of transparency, openness and accountability. In
this regard the question of the introduction of public funding of political parties needs serious
discussion, especially as it would result in the "obverse" – public accountability and disclosure in terms
of the financing of parties.
Overall, the South Australian Electoral Act, and the structures and processes which flow from
it, do contain a very high level of "democracy", and of a breadth and ease of access for the voters.
There are always areas where improvements can be made, but on the essential tests of a democratic
election system, in comparison with systems in the rest of the world, this State emerges with
relatively high marks.
220
Appendix
Electoral Acts and Constitution Acts: South Australia, since 1850.
Note: This appendix contains a full list of all Electoral Acts, and a list of Constitution Acts
which related to the electoral system.
Period 1842 to 1857 - prior to the attainment of responsible government.
Imperial
1842
The South Australia Act 5 & 6 Victoria Cap. 61
An Act to provide for the better government of South Australia
1850
The Australian Constitutions Act 13 & 14 Victoria Cap. 59
An Act for the better government of Her Majesty’s Australian Colonies
South Australian
1851
[Ordinance] No. 1
To establish the Legislative Council of South Australia, and to provide for the
election of members to serve in the same.
EA 1853 No. 2
An Act to amend the Law for the Registration of Persons entitled to vote at
Elections for Members of the Legislative Council.
EA 1853 No. 3
An Act to establish a Parliament in South Australia.
EA 1854 No. 11
An Act to amend the Law for the Registration of Persons entitled to vote at
Elections for Members of the Legislative Council.
EA 1855-6 No. 10
An Act to provide for the Election of Members to serve in the Parliament of
South Australia.
EA 1855-6 No. 32
An Act to make further provision for Election of Members to serve in the
Parliament of South Australia.
EA 1856 No. 8
An Act to amend "An Act to provide for the Election of Members to serve in
the Parliament of South Australia”.
221
Appendix
Period: 1857 - 2002
EA 1857-58 No. 12: The Electoral Act
An Act to repeal certain Acts relating to the election of Members to serve in
the Parliament of South Australia, and to provide for the election of such
Members.
EA 1859 No. 22: Electoral Amendment Act
An Act to amend the Electoral Act
EA 1861 No. 20: Electoral Act
An Act to provide for the election of Members to serve in the Parliament of the
Province of South Australia.
EA 1862 No. 13: The Ballot Act
An Act to regulate Elections by Ballot.
EA 1869-70 No. 18: The Electoral Act
An Act to provide for the Election of Members to serve in the Parliament of
South Australia.
EA 1872 No. 15: The Writs of Election Act
An Act to provide for the issue of Writs for the Election of Members of
Parliament in certain cases.
EA 1872 No. 27: The Electoral Districts Act
An Act to Define the Electoral Districts for the Election of Members to serve in
the Parliament of South Australia.
EA 1873 No. 25: The Electoral Act Amendment Act
An Act to amend "The Electoral Act"
EA 1878 No. 127: The Electoral Act
An Act to amend "The Electoral Act"
EA 1879 No. 141: The Electoral Act
An Act to consolidate and amend the Law regarding to the Election of
Members to serve in the Parliament of South Australia.
EA 1880 No. 183: Electoral Act Amendment Act
An Act to amend "The Electoral Act, 1879"
CA 1881 No. 236: Constitution Act Further Amendment Act
An Act to further amend "The Constitution Act"
222
Appendix
EA 1882 No. 242: The Electoral Amendment Act
An Act to amend "The Electoral Act, 1879".
CA 1882 No. 278: The Constitution Act Further Amendment Act
An Act to amend "The Constitution Act", "The Constitution Act Further
Amendment Act, 1881", and an Act, No. 27 of 1872, and to define
the Electoral Districts for the Election of Members to serve in the
Parliament of South Australia, and for other purposes.
EA 1883 No. 280: Electoral Act Further Amendment Act
An Act to amend "The Electoral Act, 1879".
EA 1885 No. 352: Electoral Act Further Amendment Act
An Act to further amend "The Electoral Act, 1879".
EA 1888 No. 450: The Northern Territory Representation Act
An Act to amend the law regarding to the Parliamentary Representation of the
Northern Territory.
EA 1889 No. 462: Constitution Act Further Amendment Act
An Act to alter the Boundaries of certain Electoral Districts and Divisions, and for
other purposes.
EA 1889 No. 469
An Act to alter the Hours of Voting at Parliamentary Elections.
EA 1890 No. 498: The Absent Voters Electoral Act
An Act for the purpose of giving Greater Facilities to Absent Voters to record their
Votes at Elections of Members of the Legislature of South Australia.
EA/CA 1892 No. 561: The Constitution and Electoral Acts Amendment Act
An Act to amend "The Constitution Act", No. 2 of 1855-6, and
"The Electoral Act, 1879".
EA 1893 No. 577: The Absent Voters Electoral Act
An Act to amend "The Absent Voters Electoral Act, 1890".
EA 1893 No. 581
An Act to alter the Boundaries of the Electoral Districts and Divisions
of Albert and Onkaparinga.
EA 1893 No. 583: Electoral Law Amendment Act
An Act to amend the Laws relating to the Election of Members to serve in
Parliament, and for other purposes.
223
Appendix
EA 1894 No. 606: The Ballot Amendment Act
An Act to amend "The Ballot Act of 1862", being Act No. 13 of 1862,
and for other purposes.
CA 1894 No. 613: The Constitution Amendment Act
An Act to amend the Constitution
EA 1895 No. 636:
An Act to alter the Boundaries of the Electoral Districts and Divisions of Burra
and Stanley.
EA 1895 No. 637
An Act to alter the Boundaries of the Electoral Districts and Divisions of
Gumeracha and Albert.
EA 1896 No. 651
An Act to continue certain Electoral Rolls.
EA 1896 No. 667: The Electoral Code Act
An Act to amend and codify the Electoral Laws.
EA 1901 No. 759: The Electoral Rolls Act
An Act for bringing the Electoral Rolls into force and to amend the Law as to
Absent Voters.
CA 1901 No. 779: The Constitution Act Amendment Act
An Act to amend the Constitution
EA 1903 No. 818: The Electoral Code amendment act
An Act to amend "The Electoral Code, 1896".
EA/CA 1904 No. 876: The Electoral laws Amendment Act
An Act to further amend "The Electoral Code, 1896", and
"The Constitution Act", No. 2 of 1855-6.
CA 1907 No. 920: The Council Franchise extension Act
An Act to further amend "The Constitution Act", and to provide for an Extension
of the Franchise for the Legislative Council.
CA 1908 No. 959: The Constitution Amendment Act
An Act to amend the Constitution.
EA 1908 No. 971: The Electoral Code Act
An Act to Amend and Codify the Electoral Laws.
224
Appendix
EA 1913 No. 1147: The Electoral Code Amendment Act
An Act to amend "The Electoral Code, 1908".
CA 1913 No. 1148: The Constitution Further Amendment Act
An Act to further amend "The Constitution Act" and
"The Constitution Amendment Act, 1908", and to repeal
"The Council Franchise Extension Act, 1907", and to make
Provisions in lieu thereof, and for other purposes.
CA 1918 No. 1335: Constitution (War Service Franchise) Act
An Act to further amend the Constitution by extending the Franchise for the
Legislative Council to certain persons who have been on Active Service in
the Present war, and for such purpose to make amendments of the
Constitution Further Amendment Act, 1913, and for other purposes.
EA/CA 1920 No. 1446: Electoral Code Further Amendment Act
An Act to amend the Electoral Acts, 1908 and 1913, for the purpose of providing
for a joint roll of Commonwealth and House of Assembly Electors, and
to make certain consequential amendments of the Constitution Further
Amendment Act, 1913, and for other purposes.
EA 1921 No. 1499: Electoral Code Amendment Act
An Act to further amend The Electoral Code, 1908.
EA 1922 No. 1549: Electoral Code Amendment Act
An Act to Repeal the Electoral Code Amendment Act, 1921.
EA 1925 No. 1691: Electoral Code Amendment Act
An Act to amend The Electoral Code, 1908.
EA 1929 No. 1914: Electoral Districts (Redivision) Act
An Act to provide for the appointment of a Commission to enquire into and
report upon the Redivision of the State into Electoral Districts and for
purposes consequent thereon or incidental thereto.
EA 1929 No. 1929: Electoral Act
An Act to consolidate and amend the Law relating to Parliamentary Elections,
and for purposes incidental thereto.
CA 1934 No. 2151: Constitution Act
An Act to consolidate certain laws relating to the Constitution of the State, and
for purposes incidental thereto.
CA 1936-37 No. 2336: Constitution Act Amendment Act
An Act to amend the Constitution of the State by reducing the number of
Members of the House of Assembly and altering the Parliamentary
electoral districts, and for purposes incidental thereto.
225
Appendix
EA 1937 No. 2379: Electoral Act Amendment Act
An Act to amend the Electoral Act, 1929-1934.
CA 1940 No. 31: Constitution Act Amendment Act
An Act to amend the Constitution Act, 1934-1939, to extend the suffrage for the
Legislative Council and the House of Assembly.
EA 1941 No. 26: Electoral Act Amendment Act
An Act to amend the Electoral Act, 1929-1937.
EA 1942 No. 37: Electoral Act Amendment Act
An Act to amend the Electoral Act, 1929-1941.
EA 1943 No. 30: Electoral Act Amendment act
An Act to amend the Electoral Act, 1929-1942.
CA 1943: Constitution Act Amendment Act
An Act to amend the Constitution Act, 1934-1942, to further extend the
suffrage for the Legislative Council and the House of Assembly.
EA 1946 No. 35: Electoral Act Amendment Act
An Act to amend the Electoral Act, 1929-1943
CA 1947 No. 19: Constitution Act Amendment Act
An Act to amend the Constitution Act, 1934-1943.
EA 1950 No. 43: Electoral Act Amendment Act
An Act to amend the Electoral Act, 1929-1946
EA 1954 No. 37: Electoral Districts (Redivision) Act
An Act to provide for the appointment of a Commission to report upon the
redivision of the State into electoral districts, and for purposes consequent
thereon or incidental thereto.
EA 1955 No. 52: Electoral Act Amendment Act
An Act to amend the Electoral Act, 1929-1950.
CA 1955 No. 59: Constitution Act Amendment Act
An Act to amend the Constitution Act, 1934-1953.
EA 1959 No. 6: Electoral Act Amendment Act
An Act to amend the Electoral Act, 1929-1955.
EA 1962 No. 34: Electoral Districts (Redivision) Act
An Act to provide for the appointment of a Commission to report upon the
redivision of the State into electoral districts, and for purposes consequent
thereon or incidental thereto.
226
Appendix
EA 1965 No. 5: Electoral Act Amendment Act
An Act to amend the Electoral Act, 1929-1959.
EA 1968/69 No. 2: Electoral Districts (Redivision) Act
An Act to provide for the appointment of a Commission to make, and report on,
a division of the State into proposed electoral districts, and for purposes
consequent thereon or incidental thereto.
EA 1969 No. 23: Electoral Districts (Redivision) Act Amendment Act
An Act to amend section 7 of the Electoral Districts (Redivision) Act, 1968-69.
EA 1969 No. 50: Electoral Act Amendment Act
An Act to amend the Electoral Act, 1929-1965, and for other purposes.
EA 1969 No. 99: Electoral Act Amendment Act (No. 2)
An Act to amend the Electoral Act, 1929-1965, as amended.
CA 1969 No. 110: Constitution Act Amendment Act
An Act to amend the Constitution Act, 1934-1965.
CA 1971 No. 17: Constitution Act Amendment Act (No. 2)
An Act to amend the Constitution Act, 1934, as amended.
EA 1972 No. 136: Electoral Act Amendment Act
An Act to amend the Electoral Act, 1929-1969.
EA 1973 No. 49: Electoral Act Amendment Act (No. 2)
An Act to amend the Electoral Act, 1929, as amended.
CA 1973 No. 51: Constitution Act Amendment Act
An Act to amend the Constitution Act, 1934, as amended.
EA/CA 1973 No. 52: Constitution and Electoral Acts Amendment Act
An Act to amend the Constitution Act, 1934, as amended, the Electoral Act,
1929, as amended, and for purposes incidental thereto.
CA 1975 No. 122: Constitution Act Amendment Act (No. 5)
An Act to amend the Constitution Act, 1934, as amended.
EA 1976 No. 32: Electoral Act Amendment Act
An Act to amend the Electoral Act, 1929-1973.
EA 1976 No. 33: Electoral Act Amendment Act (No. 3)
An Act to amend the Electoral Act, 1929-1975.
227
Appendix
CA 1976 No. 68: Constitution Act Amendment Act
An Act to amend the Constitution Act, 1934-1975.
EA 1976 No. 114: Electoral Act Amendment Act (No. 4)
An Act to amend the Electoral Act, 1929-1973.
EA 1981 No. 35: Electoral Act Amendment Act
An Act to amend the Electoral Act, 1929-1980.
EA 1982 No. 24: Electoral Act Amendment Act
An Act to amend the Electoral Act, 1929-1981.
EA/CA 1982 No. 57: Constitution Act Amendment Act
An Act to amend the constitution Act, 1934-1981, and to make consequential
amendments to the Electoral Acts, 1929-1981.
CA 1982 No. 77: Constitution Act Amendment Act (No. 2)
An Act to amend the Constitution Act, 1934-1981.
EA 1985 No. 15: Electoral Act Amendment Act
An Act to amend the Electoral Act, 1929.
EA 1985 No. 77: Electoral Act
An Act to regulate the conduct of parliamentary elections; to repeal the Electoral
Act, 1929, and for other purposes.
CA 1988 No. 1: Constitution Act Amendment Act
An Act to amend the Constitution Act, 1934.
EA 1988 No. 4: Electoral Act Amendment Act
An Act to amend the Electoral Act, 1985.
CA 1991 No. 1: Constitution (Electoral Redistribution) Amendment Act
An Act to amend the Constitution Act, 1934.
CA 1994 No. 36: Constitution (Electoral Districts Boundaries Commission)
Amendment Act
An Act to amend the Constitution Act, 1934.
EA 1997 No. 22: Electoral (Miscellaneous) Amendment Act
An Act to amend the Electoral Act, 1985 ...
EA 1997 No. 41: Electoral (Computer Vote Counting) Amendment Act
An Act to amend the Electoral Act, 1985.
228
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