Countbacks arrive in New South Wales


A new feature of the NSW local government electoral system is being introduced right now across many NSW councils, finally implementing a legislative change made in 2014. This change will see vacancies filled by countback of the original ballot papers, rather than a by-election. While this is an improvement, the reform is limited in its application so that it won’t apply to all vacancies across the state.

Prior to this election, vacancies would normally be filled by a by-election. This was out of step with the proportional voting system new used to elect councillors across New South Wales. While a councillor is elected by a subset of voters in their ward, while other voters contributed to the election of other councillors, they would be replaced by the entire ward’s voters at a by-election. In practice this means that bigger parties would be in a position to win seats previously held by independents or minor parties without anyone changing how they vote. It can also be very costly for the local council, particularly for wards covering a larger share of the council.

The perfect example of both these problems was the 2017 Campbelltown City Council by-election. This was triggered by the death of independent councillor Fred Borg after the 2016 election. Campbelltown uses no wards, so the entire city went back to the polls. That’s an electorate roughly the size of a federal electorate, to elect a single councillor. Labor had won seven out of fifteen seats at the previous election, and easily won the by-election, giving them a majority on the council despite not winning a majority of votes or seats in 2016.

Another feature of the existing system is that there is discretion to waive the filling of vacancies where they occur in the last eighteen months of the council term. This is a handy saving of costs and avoiding the hassle for voters and electoral participants, but it’s not great for representation. It was particularly unfortunate in the last council term. Vacancies triggered after March 2019 were not filled, but the council term ended up being extended by fifteen months to December 2021. A majority of councils had last faced election in September 2016. For those councils, no vacancies were filled for more than half of the council term.

There are two alternatives to using by-elections to fill proportional representation vacancies. You either leave the vacancy up to the party (as is used for the Senate), or you count back the ballots used at the previous election. This method of countback is used for the Tasmanian and ACT assemblies, and is also used for proportional elections to Victorian local councils.

It has a minimal cost, and has no impact on voters. It doesn’t require the conduct of election campaigns. The only potential downsides is that it limits the range of options for people to fill the vacancy, since new candidates cannot nominate. It also means that people who ran for theoretically “unwinnable” seats could end up filling a seat, but that is probably something candidates and parties need to consider when choosing candidates in the future.

When the proportional representation system is implemented with above-the-line voting for groups (as is the case in most bigger NSW councils), most vacancies will flow to the next candidate in that group (if they have another eligible and willing candidate). Results may be a bit more unpredictable when all candidates run below the line (as is the case in smaller rural councils), but you’d expect candidates with some affinity will fill vacancies.

This countback system is definitely an improvement, but the NSW implementation has some baffling limitations.

Firstly, the council must resolve to implement the countback system at their first meeting after the general election (a meeting usually devoted to the election of the mayor and deputy mayor). If the council doesn’t make that decision, by-elections remain as the default. The regulations to use the countback system were not in place for the 2016 and 2017 elections, which is why we are only now seeing the implementation of a reform legislated in 2014.

Secondly, the countback provision only applies to vacancies created in the first eighteen months of the term. Any vacancies after that point are filled by by-elections, although it is still the case that vacancies in the last eighteen months are left unfilled. (By the way, this means that any councils voting to use countbacks will see no by-elections held in this term of council, since it is only due to last for 33 months).

I don’t see any value in any of these limitations. We can easily use countbacks for the entire term. I also don’t see why councils should have the ability to choose such a fundamental part of the electoral system when the threshold for changing the ward structure or the mayoral electoral system require a referendum. If countbacks are good, let’s implement them for every vacancy (assuming there are appropriate candidates to fill the position).

The countbacks reform may have been proposed for many years, but it was implemented following the state Joint Standing Committee on Electoral Matters (JSCEM) inquiry into the 2012 council election. The report of the committee mentions the Shires Association proposing a twelve-month limit on the use of countbacks in part due to concern about newly eligible voters (such as those who have just become old enough to vote) being able to participate. This isn’t a strong argument to me. Voters who have become eligible to vote since the last election effectively remain unrepresented until their first election, so I don’t see why this vacancy should be any different.

The requirement that councils make a binding decision about whether they use countbacks or by-elections at the start of the term was added by the government in response to the committee report, and is an improvement, but if countbacks are a good model (they are) they should be universal.

It’s also worth noting that Local Government NSW policy is for countbacks to be used for the first two years of the council term, with vacancies left unfilled for the last two years. That is a slight improvement, but I don’t see why countbacks can’t be used right up until the last months of a council term. We elect the original councillors for a full term. If the life circumstances of a candidate have changed, they can withdraw.

Some councils have already voted to approve countbacks. I put out a call to find out which councils have considered this issue, and found that Bathurst, Canterbury-Bankstown, Georges River, Hawkesbury and Inner West all approved the use of countbacks at their mayoral election meetings at the end of 2021. I expect it will be a popular choice, as it is much cheaper than the by-election alternative. I can only see councillors supporting the by-election option if they expect a vacancy that they think their side can grab, but it’s hard to predict which vacancies will arise in the next eighteen months.

If you are interested in this issue, I encourage you to contact your local councillors and urge them to support countbacks. Hopefully if most of the state’s councils adopt the new system we can lobby for it to become the universal method of filling vacancies from 2024.

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  1. @Ben I’m guessing countbacks are not used for Mayoral elections, as this is just an individual spot?
    I think you would have to have a special election for the Mayoralty, as this is a separate role to Councillor.

    The issue of countbacks can be a slippery slope, if not measured by proper safeguards.
    Yes the biggest advantage is cost effectiveness and as you correctly stated there is no reason why a spot should remain vacant for the last 2 years of a term.
    There is a risk it becomes slightly undemocratic, as just as the Councillor or Member may have a change of heart, does not the voter also deserve to be afforded the same opportunity if the circumstance changes?
    That is, if the performance of the Council after 1 or 2 years has become less than satisfactory in some voters minds, they should be afforded an opportunity to voice this at the ballot box, rather than wait.
    As an extreme example, when Councils go under administration this may have been in some circumstances more easily resolved if new Councillors had been elected prior to the term ending.

    Also voters may have often voted for an individual and not a party, which would also be another factor to consider for a Council by-election
    I would argue that all by-elections should be non-compulsory as a way to bring down some costs.

    On an adjacent level, this also highlights the weakness of Senate or Upper House casual vacancies, especially as we don’t have mid-term or equivalent elections in this country.
    Having someone potentially fill a 6 year or 8 year term, with 5 or 7 years left without a general election is a perversion and abhorrence to the democratic process. At the very least, they should have a special election after 12 to 24 months or filling the vacancy. The casual vacancy should only be a stop-gap.
    Whilst it is true, voters elect MPs/MLCs/Senators for a full-term in good faith. To then replace that person with someone who may not have even been on the ballot at the last election is a highly corruptible practice.

    Casual vacancies (which I know is a slightly different issue), I think can be manipulated by parties and are prone to corruption. Given the nobodies who make up the majority of Upper House and Senate this is definitely the case. Normally the people that do fill them (at least from the major parties), are people high up in the party machine, donors or former advisors.

    I think countbacks are more of a favoured option to Casual Vacancies at all levels, otherwise we’re one step away from the way the Canadian Senate operates. But by-elections or special elections should always be favoured where practical, as they are the most democratic. At least there would be more legitimacy to a councillor elected this way, especially in at large electorates.
    There is probably more justification for countbacks for Wards but not At-Large

  2. The key issue is retaining proportionality. The cost issue is secondary, albeit not insignificant at the local level where councils have smaller revenue bases.

    By-elections distort proportionality because councillors aren’t elected by a majority of their ward, only a large fraction of it. By-elections are good for mayors and single member seats, but simply inappropriate for multi-member wards.

    The argument that democracy is better served by going to the polls again is weak. It’s a four year term after all. Casual vacancies are random and infrequent, making by-elections an inefficient way for the electorate to have its say. That’s really an argument for shorter terms, not by-elections.

  3. @ David agree to disagree- I think democracy should always trump inconvenience or cost.
    The proportionality primacy would be contra’d by low voter turnout in any case- most by-elections usually have lower turnout than general elections (I think making them non-compulsory would also be a better option).
    So essentially a countback vs a low turnout by-election would mean the person elected would be most likely getting elected with the approximate number of votes to a countback.
    This rationale is not the soundest but for me it further illustrates why proportionality at all levels is not ideal as it is not as robust as 1/2/3 members per seat. I think you’re taking away choice from the voter who is now dealing with a different set of circumstances and facts.
    For example, Voters are unaware of the composition of the Council before the election, after they see what the Council looks like- maybe dominated by one party or maybe a deadlocked council- they then have the option to re-asses their vote. To either maintain status quo (endorsing the council) or voting for another party/group expressing dissatisfaction.

    Definitely do agree with shorter terms. There’s no reason with a 24/7 news cycle, social media and an educated populous that there still needs to be 6/8 year terms. Even 4 year terms are a bit too long for state and local governments. The argument for continuity is usually a moot point because of the carry over of the bureaucracy from government to government (and both major parties are relatively moderate in nature).

    In fact Local Governments in NSW have now twice run over their term limits. Elections were supposed to be in 2016 but pushed to 2017 due to council mergers, and then again delayed by several months in 2021 due to the pandemic. Delays and extensions of terms often occur more often than expected.

  4. I would agree with David Walsh, especially for State Legislative Councils and the Federal Senate. Countbacks and/or appointments ensure that the party balance of the chamber remains fixed for the entire legislative term, thus preventing an incumbent government from gaining any advantage in terms of numbers during their term of office.

    However, I do agree with some of your points LJ Davidson in regards to local councils. These bodies are significantly different and may not have a true ‘party’ structure. I would support the reverse system – by elections used for vacancies early in the term and then countbacks used for late term vacancies (in the last 12 to 18 months). I believe this is the case with Brisbane City Council and possibly some others in Queensland.

  5. Yoh An
    Byelections are held for vacancies in the first 3yrs of QLD council terms.
    In the final year, expressions of interest are called for (like a job ad) and replacements are appointed by the mayor, CEO & whoever else is designated. I remember this happened in Somerset & Cairns regions after the 2015 state election. BCC is the exception where the parties fill the vacancy.

  6. A by-election is definitely the way to go for single-member elections. I really don’t like the QLD model of using appointments to fill single-member vacancies. If it’s too costly just leave the seat empty. If it’s important enough to fill it, hold a by-election.

    LJ, once again you are spouting nonsense. A by-election in a multi-member electorate is not democratic because it isn’t the same people voting. If a ward elects three people then there’s roughly 2 quotas of people (50%) who voted for one of the continuing councillors and they effectively get a second chance to elect someone. The Single Transferable Vote system is designed to ensure that everyone gets a single vote of equal value. The lower turnout producing a similar number of votes to fill the seat doesn’t make it more legitimate, it makes it less. It’s not like the voters who elected the other councillors are sitting at home.

    If it’s undemocratic to not go back to the voters to fill a casual vacancy, then what about the rest of the council? Why should the seat that is vacated only be subject to a fresh mandate from the voters when others don’t? If a council has a 4-year term we are relying on the ballots of voters to provide legitimacy to those councillors for the entire term, it seems perfectly democratic for us to re-examine those ballots to fill vacancies as they arise.

    Cost is very much a secondary consideration for me, but it’s not just about councils being poorer, although that is a factor. It’s that a council by-election can be disproportionate in scale compared to the position being filled. The entirety of Campbelltown City had to vote to fill a single vacancy on the council. It would be a similar cost (both in the cost to the taxpayer and the money and time expended by the voters and candidates etc) to holding a federal by-election, except at the end you haven’t filled a federal seat, you’ve just filled one council seat. That’s an extreme version I know but it demonstrates the point.

  7. @Ben interesting response.
    I do think the opaqueness and complexities of count backs for any election posed to the voter (perhaps who are not as well-versed in elections as you) would not be a winning argument in the public square.
    I’m always curious about testing norms and standards of institutions to see if they’re robust. Especially considering none of these changes or mechanisms have been put directly to the public.
    But obviously a select group of people know best. By this logic we should just abandon all by by-elections, as that too would tamper with the composition of existing parliaments.
    The more complicated you make something, the less cleaner the process is. My argument is this is not a simple system, it is sophisticated with the right intentions but it is not understandable to the average citizen who is not as electorally-educated as most who post on here.
    Perhaps as a leading communicator of these things it’d be better if you brought people with you to this argument rather than insult.
    For example, Why are count backs better? Why are they more Democratic? Why are they simpler and easier to understand? Who do they benefit/favour most? Are there any negatives?
    I’ve just found with elections, the simpler and more open you make things, the more involvement you get from all different circles.

  8. “The more complicated you make something, the less cleaner the process is. My argument is this is not a simple system, it is sophisticated with the right intentions but it is not understandable to the average citizen who is not as electorally-educated as most who post on here.”

    Sounds like an argument in favour of first-past-the-post. Getting voting right is an extraordinarily complex matter, both qualitatively and mathematically. (Have a read about Arrow’s impossibility theorem!) You have to sacrifice at least some ease of understanding to have a voting system that works well. Comes down to a statement that I live by – everything is more complicated than it initially seems.

  9. It’s simple, LJ. Countbacks are democratic because they use the actual real votes to determine who is the next preferred candidate to replace a particular elected official. Real votes cast by real voters for real candidates who put themselves up for election.

    Under a proportional multi-member system a by-election is undemocratic because you are replacing a person elected by a particular segment of the electorate with someone elected by the whole electorate. It’s not like for like. A lot of voters remain represented by the person originally elected to represent them, but now get a second bite of the cherry.

    If you could hold a by-election just of the share of the electorate who had voted for that candidate then go right ahead, but the secret ballot makes that impossible.

    That principle doesn’t apply to single-member electorates, since there is no share of the electorate who remain represented by someone else.

    Even if you don’t understand the detailed mechanics, none of this is hard to understand.

  10. Dear Ben,
    I’d be interested in just how many(or how few) councils opt to continue with by-elections.
    My council (Lismore) opted for by-elections because the proponents misunderstood the countback process, believing wrongly that any vacancy would be filled by the last candidate excluded. So we are saddled with a potential liability of $200k because the majority councilors thought that their status quo might be threatened.

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