Double election risks Big spenders
Holding Tasmania’s Legislative Council and House of Assembly elections on the same day is a bad idea, says Richard Herr
THE Tasmanian government’s decision to hold the House of Assembly election on the same day as those for the three Legislative Council seats due in 2021 is far from being the “interesting experiment” some have claimed.
The decision was deliberate and with an agenda that smacks of hubris and opportunistic overreach.
Moreover, it has the potential for serious legal and political consequences that should have dissuaded any thought of an experiment.
The short-term political prize for the rash act is limited. It extends only to the seats of Windermere and Derwent because Mersey is uncontested. A Liberal win in both would not give the party control of the Upper House.
However, the tactic may be intended to have long-term consequences that were first proposed by some in the ALP during the Bacon era.
Concurrent elections were seen as a means to bring the Legislative Council under party control by aligning the mandates, over time, with the ultimate aim of having the numbers to abolish the Upper House.
Certainly, this was the clear concern of the independent MLC who requested the Premier to move back the Legislative Council elections to later in May.
It was also the Liberals’ view nearly two decades ago when the ALP thought bubble was floated.
The Premier’s “polite” snubbing of the request will not assist his government’s relations with the Legislative Council if it is returned in the May 1 elections. Nor will his characterising of their oversight and review function as political opposition.
These political consequences, however, may be overtaken by the legal jeopardy concurrent elections risk.
The 2004 Electoral Act is clear. Section 162 specifically prohibits party financing of candidates. This is to limit undue partisan influence in Legislative Council elections.
The Act does not prohibit party endorsement, but it does seek to keep control of the campaign spending cap by reining in generic party expenditure for partyendorsed candidates.
It seems that the Tasmanian Electoral Commission was so concerned that parties and candidates have been advised to take careful note of the expenditure provisions in the Act and the penalties that could apply.
Anecdotal evidence suggests the horse may have already bolted with regard to Section 162 and the prohibition on party expenditure, though it may be a legal grey area as to how generic party advertising might be viewed by a court.
Questions would also be raised as to how much of such support might be attributed to an individual candidate, and the effect it would have on their spending cap.
Potentially the consequences could be significant. Any person found guilty of exceeding the limits on spending or the Section 162 bar on party expenditure could be fined up to 200 penalty units and/or imprisonment for up to six months. For a successful candidate, the breach could even void the win.
The latter possibility raises the spectre of the 1979 state election. Over-spending breaches of the Electoral Act were so pervasive that Tasmania was in genuine jeopardy of having an unworkable parliament.
An unsuccessful ALP candidate, Bill McKinnon, petitioned the Supreme Court against the successful Michael Aird. This provoked more than a score of other petitions against successful candidates in both parties. In the end, the looming disaster led to most, but not all, petitions being withdrawn. Consequently, the parliament legislated for a special election for the electorate of Denison in early 1980. The extent of the abuse was such that more than 50 candidates were subsequently fined for failing to lodge returns that would have exposed their violations.
The Electoral Act was subsequently amended to remove the spending caps on House of Assembly elections.
The 1979 scenario could not be replayed in its entirety today, of course, since the Legislative Council as a body is
not in jeopardy. However, candidates for the House of Assembly could be caught in the fines and, if the breaches were particularly egregious, even in jail time.
Party officials are especially at risk of possibly inadvertent violations of the Section 162 prohibition of party funding of Legislative Council candidates.
Given the risks and the maladroit opportunism in the government’s decision to pursue concurrent elections for both houses of parliament, the question has to be asked: Why? What advantage did the Premier, the government, the Liberal Party see in rolling the political dice so confrontationally against the Legislative Council?