Kerryn Phelps and council countbacks


A story in the Sydney Morning Herald this morning discussed how Kerryn Phelps would keep up doing both her jobs as a City of Sydney councillor and federal MP if (as expected) she comes out the winner in last weekend’s by-election.

The article explores some interesting perspectives about the workload (hard to do if you’re diligent) and the potential constitutional issues (unlikely to be a problem, assuming the High Court judges NSW councillors as similar to Tasmanian councillors) but missed another angle: the impact on local electors in the City of Sydney of a by-election if Phelps were to resign.

If Kerryn Phelps were to resign from the City of Sydney, it would trigger a by-election across the entire City. At the 2016 election, almost 85,000 people cast ballots, and over 140,000 were enrolled. This is more than have voted in the Wentworth by-election. It would presumably be costly and have a big impact.

There is a general problem with using by-elections for filling council vacancies. Almost every council in New South Wales is elected using a method of proportional representation. We mostly avoid using by-elections in this country to fill vacancies in proportional systems.

The two solutions usually used are appointment by the party of the vacating member (eg. NSW upper house, Senate) or a countback (eg. Tasmanian lower house). Under a countback, you re-examine the ballots cast at the last election and effectively recount the votes to see where the votes of the vacating member would have gone, and that person fills the vacancy without the casting of fresh votes.

It’s even more of a problem for some NSW councils without wards. It’s a hassle to hold a ward by-election when a few tens of thousands of voters would need to come out and vote, but in the case of the City of Sydney it would be a huge number.

The best example I can find is the 2017 City of Campbelltown by-election. Campbelltown (a large Western Sydney council) has no wards – it elects fifteen members to represent the entire council area. This produces the lowest quota for any council in the country – you need just over 6.25% to win. This produces a very proportional council, and usually prevents one party from winning a majority.

At the 2016 election, Labor won seven out of fifteen seats on council, which allowed them to put together a working majority with some sympathetic crossbenchers. Long-serving independent Fred Borg died three months after the election, triggering a by-election.

Like the potential City of Sydney by-election, the ensuing by-election was large, with over 77,000 votes being cast, just to elect a single councillor. Unsurprisingly, Labor won that by-election, giving them a majority on the council despite the proportional election depriving them of a majority.

Starting from after the 2020 election, we will have the option to use countbacks for certain local council vacancies, but they will not be available as widely as they probably should.

You would only be able to use countbacks if the vacancy takes place within 18 months of the last general election, and that the council has decided at its first meeting to allow for countbacks for vacancies.

These restrictions don’t really make any sense. I don’t see why a by-election in the third year of a council term is any more democratic, and it can still be very costly. It also seems unfortunate that we leave it up to the council members to decide whether the less democratic and proportional method of by-elections should be used at all.

It’s worth noting that, while a countback would be a great solution to Kerryn Phelps’ current dilemma, it wouldn’t have helped since it’s been over 18 months since the last City of Sydney council election.

So what might she do? I suspect she will wait until the middle of next year and then resign from council. Section 294 of the Local Government Act allows for by-elections to be dispensed with (and thus a seat would be left vacant) if the vacancy arises in the last 18 months of a council term. In Phelps’ case, she would be able to resign once we reach March 2019, which may well be close to the time of the next federal election. So I suspect if she is re-elected in Wentworth at the general election, she would then resign from council and leave her council seat vacant until September 2020.

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  1. Parliament wont be sitting for much for the rest of the 2018 and over the Summer holidays and that is only a few months to the May 2019 federal election. In Victoria you can’t be a councillor and a state MP, I think, but I dont know the rules for NSW or what they are for MHR as well. At the next federal election if she is re-elected she probably should resign as a Councillor but when is the next NSW council elections?

  2. In Victoria they have a count back in council election and this happened when a Greens councillor in Stonnington was elected to Prahran District as an MLA. Also in Stonnington another councillor have died in office.

  3. You are not allowed to run for council if you’re a state MP but it’s alright to run for state parliament as a councillor. You just have to resign within 2 years of being elected to state parliament (which conveniently covers the time between a state election and a council election). So in practice you can do both as a transition.

    No rules in NSW about federal MPs and councils. The next council election is in September 2020, so she can resign after March 2019 without triggering a by-election.

  4. In Victoria, countbacks apply for councils. But the rules are odd (for most regional councils, or perhaps all councils) where the votes reallocated are those that sat with the resigning member at the time of their reaching quota. This produces some bizarre outcomes.
    Googling “VEC council countbacks south gippsland” shows some examples of how silly this process is.

  5. With count backs the winner may not have anything to do with political position or party of the former councillor. With elections parties are irrelevant as technically we elect the person not the party. Yes I know many candidates band together as a party or group but it is irrelevant to the AEC or VEC etc

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