Proposed re-introduction of the requirement to maintain the voters’ roll – further discussion

Introduction

In response to a number of submissions from the LGA since 2010, the Minister for Local Government has agreed to consider the LGA’s request for re-instatement of automatic property franchisees enrolment in Local Government elections. However, the Minister has expressed some concerns regarding the potential resource implications of this request, and has requested the Local Government Association (LGA) to provide additional information to councils on this matter.

This background paper provides additional information on the previous requirements for automatic property franchisees enrolment; the changes that were made to them in 2010; and the potential processes and costs that would be involved in the re-instatement of this requirement.

Past Requirements for Automatic Property Franchise Enrolment

Prior to the 2010 Local Government elections, councils were required to include all property owners on the CEO’s roll or ’voters roll’ as it is generally known. This was a labour-intensive task for councils, as to create the roll, councils needed to cross-check the names of all property owners in the council’s rates record against the names of those enrolled as residents on the House of Assembly roll. This was necessary to remove names duplicated on both rolls, to ensure that each owner-occupier received one vote only, upholding the fundamental election principle of one person, one vote, one value.It was often necessary to manually check names (to properly check variations such as the use of hyphenation, maiden names, ethnic variations, initials only and so on).

The complexity of the group entitlements legislation requires council staff to:

  • Break each group of owners down into its individual membership;
  • Compare each member to the House of Assembly roll;
  • Assess each against the rules pertaining to members of the group before determining the eligibility of the group to vote;
  • Apply this testing regime to each member of the group at least twice, to determine their eligibility to vote in respect to the Area vote, and to determine it in respect to the Ward vote.
  • Repeat testing on each property owned and in each ward where the same group owns multiple properties in multiple wards (as elections software creates a new group number for each property owned by a group or business entity).

The voters roll therefore consisted of individuals who owned property but were not residents of the council area (such as owners of holiday homes), and groups or bodies corporate (such as business or joint property owners).

Under this model, no details of the identities of representatives of bodies corporate and group owners were included on the voters roll. This meant that ballot papers would be simply sent to the body as enrolled (for example, to ‘Smith Nominees Pty Ltd’). An individual person would then claim the body corporate or group entitlement, by voting on a ‘self-identified’ basis (that is, the ballot papers would be sent to ‘Smith Nominees Pty Ltd’, but the vote would be claimed and returned by ‘Jane Clark’).

Current Enrolment Requirements for Property Franchisees

The Local Government (Elections) Act 1999(LGE Act) was amended in December 2009 to remove the automatic enrolment of property franchisees (except for the City of Adelaide). This amendment was based on the recommendation of an Independent Review of Local Government Elections in 2008, and was agreed to by the local government sector at the time.

This amendment was made in recognition of the resources required by councils to maintain the voters roll and prepare a certified roll for a general election. The Independent Review of Local Government Electionsconcluded that the total cost for all councils for the 2006 local government elections was in the order of $1million (noting also that the voter turnout rate for property franchise holders was less than 20%). All councils are now required to inform potential electors in its area of the requirement to apply to be enrolled on the voters roll; and the roll is compiled of those people that choose to complete this enrolment form where they meet the individual or group criteria required under the legislation.

It is notable that enrolment for the property franchise portion of the council voters rolls reduced overall from 23,407 in 2010 to 18,871 in 2014 (Adelaide City Council accounted for 13,369 of the 18,871). Property owners either chose not take up the option or were not fully aware that they were required to take their own action to re-enrol from 1 January in the year of a general election.

Major Issues with Re-instatement of the Automatic Property Franchise

Following a recent case in the Court of Disputed Returns,[1] the Electoral Commission of South Australia (ECSA) has advised that a re-instatement of automatic enrolment of property franchisees should not simply reinstate the system in place prior to 2010. In the relevant case, theHonourable Chief Justiceheld that‘self-identification’when used to exercise a vote is not sufficient, as it provides no objective test in respect of the voter’s entitlement to exercise that vote.

To address this, councils will be required to only issue ballot papers tobody corporate or group property franchisees once that body corporate or group has completed an enrolment form nominating a designated natural person who meets the eligibility criteria.

Councils will then need to check to ensure that nominated natural person does not appear on the House of Assembly roll or is not enrolled in their own right in respect to another property within the Area or Ward. This will ensure a person does not vote twice.

If this step is not taken,the Acting Electoral Commissioner has advised that, given current legislative provisions,any natural person who votes as a resultof their inclusion on the House of Assembly roll,andon behalf of abody corporate or group, will have both votes rejected after the voting period has concluded without any means to have another eligible person vote on behalf of the body corporate or group.

Additionally, to uphold the integrity of an election, votes may be rejected where a natural person exercises a vote, on behalf of a body corporate or group, under ‘self-identification’ and their particulars cannot be verified.

Estimated Costs and Resources Required for a return to Automatic Entitlement

As noted above, the process for compiling the voters roll under the requirement for automatic enrolment of property franchisees was complex, and, accordingly, the costs for doing so were high. The 2008 Independent Review of Local Government Elections estimated that the total cost for all councils of maintaining and preparing the certified voters roll for the 2006 local government elections was in the order of $1million.

If re-introduced, these requirements would have significant resource implications. One large metropolitan council has advised that, in 2006 (the last election year in which the automatic property enrolment was required), it took the equivalent of six full time staff approximately six weeks of manual checking to conduct this process.

These costs are likely to have increased considerably over the past 10 years - members of Revenue Professionals SA (formerly SAIRA) have estimated that some councils will incur costs of up to $20,000 to purchase new software or update current election modules to meet this requirement.

These costs also do not consider the current requirement to invite nomination of a ‘designated person’ or to contact each body corporate and group to request a nomination of a natural person, and checking this enrolment form against legislative criteria, if returned.

While additional difficulties may be encountered by smaller councils,as administration staff will need to be trained and taken off line to undertake the work outlined above in manually checking each enrolment application form returned by property franchisees, the effort will be significantly easier and less expensive than for identifying voter eligibility under the previous ‘automatic entitlement’.

It is also worth noting that, with the needed changes to the previous process that have been identified by ECSA,a significant proportion of property franchise holders will still be required to take their own action to be enrolled on the voters roll (through the requirement for groups and corporate bodies to nominate a ‘natural person’ as this is not a current requirement).

A diagram is attached that demonstrates the differences between the pre-2010 process and the proposed process to assist councils to make an assessment of the resource requirements needed to implement this potential change.

Further Consultation Required

Given the above information, councils are asked to consider whether the requested change to enrolment of property franchisees is still an appropriate mechanism for improving voter participation of property franchisees.

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REINTRODUCTION OF THE REQUIREMENT TO MAINTAIN THE AUTOMATIC PROPERTY FRANCHISEE ENROLMENT– PROVISION OF BALLOT PAPERS

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[1]Richards v Paddy & Ors (2016) SADC 11