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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-07-15 Daily Xml
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LOCAL GOVERNMENT (ELECTIONS) (MISCELLANEOUS) AMENDMENT BILL

Introduction and First Reading

The Hon. G.E. GAGO (Minister for State/Local Government Relations, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister Assisting the Minister for Transport, Infrastructure and Energy) (22:10): Obtained leave and introduced a bill for an act to amend the Local Government (Elections) Act 1999 and to make related amendments to the City of Adelaide Act 1998. Read a first time.

Second Reading

The Hon. G.E. GAGO (Minister for State/Local Government Relations, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister Assisting the Minister for Transport, Infrastructure and Energy) (22:10): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

This Bill is derived in large part from the work of the Independent Review of Local Government Elections. The Review was established on 20 April 2007 following completion of the 2006 local government election process. My predecessor acted in cooperation with the then President of the Local Government Association (the LGA) to commission an independent and comprehensive post-elections review.

The Review was jointly funded by the Government and the LGA. The terms of reference for the review were drafted in consultation with both the Electoral Commissioner and the LGA.

The Independent Reviewer had the benefit of advice from a Reference Group chaired by the Hon Ian Hunter, MLC and including officers from the:

Local Government Association;

the Office for State/Local Government Relations;

the Electoral Commission;

Office for Women;

Multicultural SA;

Aboriginal Affairs and Reconciliation Division;

Office for Youth; and

South Australia's Strategic Plan – Cabinet Office.

The Review began by reviewing the reports of previous reviews and examining literature published worldwide on local government elections. It then produced three Issues Papers, which were published in June 2007.

Consistent with the Review's Terms of Reference, the three Issues Papers covered three broad themes:

1. Improving Local Government voter participation;

2. Improving Local Government representation; and

3. Improving the Local Government election process.

The Review also considered it important to reach out to a broader audience than the few who would have the time or the inclination to peruse and respond to three long documents. Therefore, with the assistance of the Reference Group, a more compact questionnaire, characterised as a '10-minute survey leaflet' was produced.

The Review intended this survey to be distributed as widely as possible, and attract comments from not only people within local government, but also the wider public. More than 6,000 copies of the 10 minute survey leaflet were printed and distributed. A further 500 (translated into Vietnamese) were distributed in the Port Adelaide Enfield Council area. Another survey, asking similar questions, was conducted entirely online at a website hosted by the Office for Youth.

Through this process, input was obtained from 313 individuals and 26 organisations through feedback sheets or through detailed submissions and from 19 organisations through discussion at meetings.

The Review set up a website on which all its documents, submissions and comments to the Review were published. The website is still operating and has been updated to include not only the Review's Interim Report and Final Report, but also responses by the Government and by the LGA.

Voter turnout—South Australia's Strategic Plan

The Independent Review was undertaken in the context of South Australia's Strategic Plan. The Plan contains a number of topics and targets that guided the Review, but the most direct reference is the target to increase voter participation in Local Government elections in South Australia to 50 per cent by 2014. This Target 5.5 is regarded as a measure of strong, connected communities with citizens engaged in local decision-making.

Other relevant targets in the Strategic Plan, considered by the Review, are to increase women's participation in leadership roles, as well as targets to increase the number of Aboriginal South Australians participating in community leadership (T5.7) supporting multiculturalism (T5.8) and to increase the proportion of eligible young South Australians enrolled to vote (T5.4).

In the last local government elections, in 2006, only 31.6 per cent of eligible voters exercised their right to vote (a decline of 8.5 per cent since 2000). The South Australian Strategic Plan target to increase voter participation to 50 per cent by 2014 is therefore seen as particularly important to enhance the credibility of local government and as an indicator of strong and involved communities and healthy local democracies. Very low voter participation rates also result in some individual councillors being elected with a very small vote.

The Review noted that in general, local governments did not appear to have embraced the 50 per cent voter participation target. Although 20 councils achieved the target of 50 per cent participation rate in 2006, these were all small council areas and represented only 5.6 per cent of all eligible voters. In 2006, the 13 largest council areas all had participation rates of less than 30 per cent.

None of the councils with voter participation of less than 50 per cent presented the Review with any plans to try to achieve the SASP target. The Review noted that many councils had the view that the SASP target was a State Government target that did not concern them.

If there is to be progress towards achieving the SASP Target, effective measures must be targeted towards the largest councils; ie those with turnout below 30 per cent at their last election, who together represent about 800,000 enrolled voters (two thirds of SA's total). These councils are all in the Adelaide metropolitan area. In addition it will be important to support smaller and rural councils to maintain, and if possible increase, their existing, higher voter participation rates.

To that end, the Review noted two key aspects in which South Australian local government elections differ from local government elections in other States:

South Australia is the only State in which a State Electoral Office or Commission does not take responsibility for a central publicity and promotions campaign for local government elections. Leaving aside provisions for capital cities, the Review noted South Australia is also the only State in which property franchisees (ie non resident owners and business lessees) are automatically enrolled without taking any action to seek enrolment.

Recommendations accepted

The Review's Final Report was released in March 2008. It made a series of 27 recommendations. The key ones dealt with these two differences between South Australia and other States. The overall thrust of these key recommendations was to divert resources away from what the Review saw as unnecessary administrative tasks associated with compiling a separate voters roll, and towards activities that heighten awareness of the role of local government and elected members, its elections, and individual candidates for election.

In December 2008, the State Government considered the Final Report of the Independent Review, and made decisions to adopt 23 of the 27 recommendations. The list of the Government's responses to each of the 27 recommendations is published on the Review's website.

Four recommendations rejected

Recommendations 14 and 25 involved altering the date of future local government elections so that they would fall 18 to 19 months after the date of State elections. This would have required extending the current term of office of all elected councils by 10 to 11 months, to conclude with an election sometime in September or October 2011, and every four years thereafter. The Government rejected both recommendations 14 and 25, and decided to leave the election date unchanged, on the basis that the present local government term is the first ever to run for four years and an extension of the current term to almost five years would unreasonably postpone the opportunity for democratic evaluation of current councils.

Recommendation 19 was to institute dual candidacy. The Review recommended that in council areas with a popularly elected Mayor, any candidate ought to be able to nominate for both Mayor and councillor. The Government rejected this recommendation, on the basis that that dual candidacy could confuse voters, would also add to election costs, and delay finalisation of results.

Recommendation 23 was to provide voters roll data to local government election candidates in electronic format. The Government rejected this recommendation, on the grounds that electors supply their information to the Australian Electoral Commission with the expectation that it will be used for electoral purposes only; and that the more widely the electronic roll is distributed the greater the risks that this information may be misused.

The remaining 23 recommendations were supported by the Government. To the extent that these recommendations require legislation to be implemented, this Bill seeks to do that.

Publicity campaign

The Local Government Association is supporting most of the measures in this Bill. However, I am aware that the LGA is opposed to Clause 6, which proposes to insert a new section 13A. This new section establishes responsibility for information, education and publicity for local government general elections.

This clause is one of the two key reforms in this Bill recommended by the Independent Review of Local Government Elections. It would place the responsibility for promoting elections into the hands of an independent statutory officer, the Electoral Commissioner. This is one of the centerpieces of the proposed reforms.

Despite the LGA's concerns, the Government is strongly of the view that it is appropriate to have the Electoral Commissioner, as an independent statutory officer, authorising and coordinating publicity for local government elections. It is also appropriate to have the Electoral Commissioner setting the budget for this campaign, albeit in consultation with the Local Government Association. This reform is necessary because in the past, local government has not taken sufficiently seriously the task of promoting its own elections. The Independent Review found that some local governments contributed as little as $300 to promoting the 2006 local government elections.

Authorising the Electoral Commissioner to carry out this function would bring South Australia into line with the practice in every other Australian State, and ensure for the first time, that local government elections are promoted vigorously, throughout South Australia.

Proposed subsection 13A(2) also places some responsibility onto local government to directly inform landlords, business lessees, and resident non citizens (perhaps via fliers that accompany rates notices) about the proposed change under which they would need to enrol if they wish to exercise a vote.

Property franchisees voters roll

The LGA is fully supportive of the other major initiative in this Bill, which is to reduce the administrative burden associated with compiling a separate voters roll. The Government and the LGA both agree with the Independent Review that it makes little sense for local governments to spend many thousands of dollars, of employees' time, updating a voters roll comprised of absentee owners, landlords, and business renters, when most of these people historically have shown no interest in voting. Under the provisions of this Bill, these people will still be able to exercise a vote, but only if they choose to enrol themselves in a local government election year. These proposed changes will not apply to the City of Adelaide because their implications would be significantly different for the capital city.

Bodies Corporate and groups

There is a related reform that applies to property franchisees who are bodies corporate or groups. This includes companies, incorporated associations, and couples or family groups who own property in two or more individual names.

Under the provisions of this Bill, a body corporate or a group that wishes to exercise a vote in a local government election will need to nominate someone to be a 'designated person' for that purpose.

The purpose of this restriction is to prevent individuals voting multiple times in the same election. The main effect of this reform is that a person who already has a vote as a resident in a council area will not be able to exercise any additional vote or votes (for example as a landlord) in the same council area. Under the provisions of this Bill, some groups and some bodies corporate will not be able to exercise a property franchise vote through any designated person. They may be unable to appoint a designated person who is not a resident. Nevertheless, their members or officers would not be disenfranchised, because each of their adult members or officers would have a vote as a resident.

Under this scheme, a designated person is not considered to be an elector. The 'elector' would remain the body corporate or group that authorised the 'designated person'. However, a designated person would be entitled to vote after:

having been authorised to do so by the body corporate or group; and

having his/her name placed on the voters roll as the designated person of the body corporate or group.

Under the present Act, a body corporate that has property in multiple wards of the same council, may nominate a different officer to stand as a candidate in each of the wards, and another different officer to stand as a mayoral candidate. The same right exists for a group that has multiple voting entitlements, to nominate different officers as candidates in different ward and mayoral contests.

Clause 10 adopts the concept of a 'designated person' who is authorised to exercise the rights of a body corporate or group for the purposes of a local government election. It provides that only this designated person (and not any other nominee) may be a candidate for election on behalf of a body corporate or group.

Again, the above reform will not apply to the City of Adelaide. Voting in more than one capacity in the City of Adelaide is already prohibited.

Prohibition on withdrawal of a candidate

There is an underlying concern that existing provisions in the Act, that permit a candidate to withdraw for medical reasons after the close of nominations, are capable of misuse to affect the outcome of local government elections.

For example, a person who already has a known medical condition may nevertheless nominate as a ward candidate, with no intention of remaining in the contest. The late provision of a medical certificate and the withdrawal of the candidate during the election period would cause the election in that ward to wholly fail, forcing a supplementary election at a later date. That outcome may be to the advantage of others.

Clause 5 of this Bill would prevent this occurring, by preventing the withdrawal of any candidate after the close of nominations. This would make the Local Government (Elections) Act 1999 consistent, in this respect, with the Electoral Act 1985.

Any candidate who becomes too ill to continue as a candidate might consider urging his or her supporters to switch their support to another candidate.

Publication of candidate statements etc

Clause 11, which proposes to insert new section 19A— would provide voters with the ability to look up each candidate in a local government election, and obtain information about each candidate and his or her policies.

For candidates, it is intended to provide an effective campaigning tool. This scheme deals with some of the concerns that have been expressed about the necessary limitations of the printed candidate profile that accompanies the printed ballot papers.

Subject to any technical considerations to ensure the feasibility of the scheme, the LGA will be able to permit candidates to fully express their views, and provide links to additional information at the candidate's discretion.

Although this proposed new section would remove any civil liability from the LGA, and from the web hosts of such candidate statements, this would not give candidates authority to publish falsehoods or defamation. The candidate would remain legally liable for the content of these statements, and would face consequences in the same manner as if the offending material had been in printed form.

Publication of misleading material

Clause 12 would insert, into section 28, provisions that are drawn from section 113 of the Electoral Act 1985 that apply to State elections. These provisions give the Electoral Commissioner the power to 'request' the withdrawal or retraction of a statement 'purporting to be a statement of fact that is inaccurate and misleading to a material extent.' Just as under the equivalent provisions in the Electoral Act 1985, there may be legal consequences for a candidate who does not co-operate with such a request from the Electoral Commissioner. Failure to comply with a request will be a matter that a court may take into account when determining a penalty for a breach of section 28.

Caretaker policy

Clause 20 would require each local government to adopt a caretaker policy governing the conduct of the council and its staff during the election period. The provisions are modelled on similar legislation in Victoria. They would, at a minimum, prohibit a council, during an election period, making decisions about:

a) the employment or remuneration of a chief executive officer, other than a decision to appoint an acting chief executive officer; or

b) to terminate the appointment of a chief executive officer; or

c) to enter into a contract, arrangement or understanding the total value of which exceeds whichever is the greater of $100,000 or 1 per cent of the council's revenue from rates in the preceding financial year; or

d) allowing the use of council resources for the advantage of a particular candidate or group of candidates (other than a decision that allows the equal use of council resources by all candidates for election);

Other reforms

Other reforms in this Bill provide for:

the provisional enrolment of 17 year olds, reflecting the practice for State and Commonwealth elections and allowing them to exercise a vote if they have turned 18 by election day;

setting a definite time, 4:00pm, for the drawing of lots to determine the order of names on the ballot papers. This is intended to allow candidates and other interested parties to schedule their time to attend the draw, if they wish;

reducing the length of time (from six weeks to 30 days) for provision of a campaign donations return after the completion of an election; and

requiring campaign donation returns to be retained for four years, rather than three.

I commend this Bill to Honourable Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Local Government (Elections) Act 1999

4—Amendment of section 4—Preliminary

This clause inserts a definition of designated person for the purposes of other amendments contained in the measure. A designated person is a natural person, of or above the age of majority, who is an officer of a body corporate and is authorised to act on behalf of the body corporate for the purposes of voting or who is a member of a group, or an officer of a body corporate that is a member of a group, and is authorised to act on behalf of the group for the purposes of voting.

5—Amendment of section 7—Failure of election in certain cases

Currently the Act provides that if, after the close of nominations, a candidate withdraws his or her nomination on the ground of serious illness or ceases to be qualified for election, the election will be taken to have failed. This clause removes that provision and 2 other subsections that are consequential to it.

6—Insertion of section 13A

This clause inserts a new section 13A as follows:

13A—Information, education and publicity for general election

This proposed provision allows the returning officer (after consultation with the LGA) to arrange certain advertising and recover the costs from councils. In addition, the provision requires each council, during an election year, to inform potential electors of the requirement to enrol to vote.

7—Amendment of section 14—Qualifications for enrolment

This clause alters the section dealing with qualifications for enrolment to include a requirement that a person enrolling on the basis of residency have been so resident for a continuous period of 1 month prior to applying for enrolment and to require lodgement of an application for enrolment from all persons entitled to vote other than natural persons who are enrolled as a House of Assembly elector for a residence in the relevant area or ward. The provision also allows for provisional enrolment and inserts an offence relating to the provision of false or misleading information.

8—Amendment of section 15—The voters roll

This clause amends section 15—

to ensure that an entry in the voters roll relating to a group or a body corporate will include details of the designated person for the group or body corporate;

to provide for the expiry of the voters roll on 1 January in each election year (subject to a provision regarding the holding of a supplementary election to fill a casual vacancy);

to limit the entitlement to obtain a copy of the voters roll (in printed form) to nominated candidates;

to ensure that the first copy of the roll provided to a nominated candidate is free (however further copies may incur a charge).

9—Amendment of section 16—Entitlement to vote

This clause makes amendments that are consequential to provisional enrolment and to the introduction of the 'designated person' concept and provides that a natural person may only vote in 1 capacity at an election or poll.

10—Amendment of section 17—Entitlement to stand for election

This clause is consequential to the introduction of the 'designated person' concept.

11—Insertion of section 19A

This clause inserts a new clause 19A as follows:

19A—Publication of candidate statements etc

This clause provides for the publication, by the LGA, of any electoral statements by nominated candidates and the candidate profiles under section 19(2)(b).

12—Amendment of section 28—Publication of misleading material

This clause inserts a provision equivalent to section 113(4) of the Electoral Act 1985.

13—Amendment of section 29—Ballot papers

This clause provides that the drawing of lots to determine the order of names on a ballot paper is to occur at 4 pm or as soon as is reasonably practicable thereafter on the day of the close of nominations.

14—Amendment of section 39—Issue of postal voting papers

This clause is consequential to the 'designated person' concept.

15—Amendment of section 47—Arranging postal papers

This clause substitutes a new subsection (2)(a)(ii) which is consequential to clause 9 and makes 2 other amendments that are consequential to the introduction of the 'designated person' concept.

16—Amendment of section 80—Returns for candidates

This clause shortens the time for lodgement of a campaign donations return from 6 weeks after conclusion of the election to 30 days after conclusion of the election.

17—Amendment of section 81—Campaign donation returns

This is consequential to clause 16.

18—Amendment of section 87—Public inspection of returns

This clause extends the time for keeping returns from 3 years to 4 years.

19—Amendment of section 89—Requirement to keep proper records

This clause extends the time for keeping records relating to returns from 3 years to 4 years.

20—Insertion of section 91A

This clause inserts a new section 91A as follows:

91A—Conduct of council during election period

Councils will be required, under this proposed provision, to adopt a caretaker policy to apply during election periods. The policy must at least include provisions prohibiting certain decisions of a kind set out in the definition of designated decision, but the clause makes provision for the Minister to grant an exemption in relation to a designated decision in extraordinary circumstances.

Schedule 1—Related amendments and transitional provisions

Part 1—Amendment of City of Adelaide Act 1998

This Part makes related amendments and amendments of a statute law revision nature to the City of Adelaide Act 1998, and also ensures that the status quo is maintained in relation to various matters relating to enrolment , entitlements to vote and entitlement to stand for election.

Part 2—Transitional provisions

This Part makes provision relating to the conduct of comprehensive reviews required under section 12 of the Local Government Act 1999.

Debate adjourned on motion of Hon. S.G. Wade.

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