NSW government bill would end council countbacks

There is a bill currently before the NSW Legislative Council which makes a number of changes to how local government elections work in New South Wales. The bill has been referred to an inquiry that is currently open for submissions.

The bill’s focus has been on a change to end the option for local councils to use a private election provider to run their elections. This is long overdue and I have already made a submission in support of this clause. I have written about this topic before.

The explanatory memorandum for the bill is a bit sneaky, in that the summary completely misses a quite significant other change in the bill.

Currently in New South Wales, councils face a choice at their first meeting following an election: to either have vacancies filled by by-elections or by countbacks. If they use countbacks, they are used for any vacancies caused in the first eighteen months of the term.

This bill would end this practice from 2028: instead, councillors elected as part of a group would be replaced by the next candidate in their group. For everyone else, it will be by-elections.

This is a backwards step and I have made a supplementary submission urging the inquiry, and the Parliament, to reject this change.

By-elections are a poor way to fill vacancies in proportional representation elections. While only some voters cast their votes for the vacating representative, all voters get their say in choosing a replacement.

This is what is so brilliant about countbacks: they don’t require a fresh election, but you can use the existing ballot papers to choose the person who is the next choice of those voters.

They are used in numerous other elections, including proportional elections in Tasmania and the ACT. I have been advocating for this reform since at least 2018.

The minister’s alternative solution, where the next candidate in a councillor’s group would fill their vacancy, would result in the same result in many cases, but it is not the same. Most of the time, countbacks would result in someone of the same political colour filling a vacancy, but only because voters actually vote that way. If voters vote below the line and don’t follow through and vote for the next candidate, then it is fair that someone else can win the seat.

Countbacks are also a useful tool in non-group elections. The democratic dilemma of some voters losing their representative but all voters choosing their replacement is true even without groups. Voters still have additional preferences.

In the minister’s speech, he talks about the need for political stability. I don’t disagree – countbacks usually produce more stability than by-elections. And it is possible to look at the voting data to know exactly who will win countbacks – a smart councillor should know exactly who will replace them if they were to resign. But stability shouldn’t be prioritised over the wishes of voters.

In my submission, I have urged the Parliament to instead amend the legislation to require countbacks be used in all local government vacancies, with by-elections only available where a countback isn’t possible. If this isn’t possible, I would urge them to strip out this provision entirely, or otherwise block the legislation.

While only a handful of councils use private election providers, this measure would weaken democracy all across the state.

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