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Speaker Sets July 28 As Date For Five By-Elections; Opposition Outraged

Last updated on December 10, 2023

The Speaker, Tony Smith, advised the House of Representatives this afternoon that he had set July 28 as the date for the five by-elections caused by recent resignations relating to dual citizenship.

Speaker Tony Smith addresses the House on by-election dates

Smith told the House that because of new regulations to refine the nomination process and because of imminent schools holidays, July 28 was the “optimal” date for the by-elections in Longman, Braddon, Mayo, Fremantle and Perth.

The ALP opposition accused the Speaker of inordinate delay and said the by-elections coincided with the ALP National Conference in Adelaide.

  • Listen to Speaker’s statement to the House (21m)
  • Watch the House proceedings (21m)

Hansard transcript of House of Representatives proceedings relating to the calling of five by-elections on July 28.

The SPEAKER (15:12): If members could cease interjecting, could I please have the attention of the House on this important matter: I’d like to read a fairly lengthy statement, and then I’ll be tabling some documents. Earlier in the week, I advised the House I would provide an update on possible dates for by-elections in the seats of Braddon, Fremantle, Longman, Mayo and Perth. This update follows further consultation with the Australian Electoral Commissioner and party leaders. Under the Constitution, it is my responsibility alone to issue a writ for a by-election when a vacancy occurs, and generally it has not been the practice to provide an explanation for the exercise of this responsibility. I have varied from the usual practice because of the quite unusual—quite unique—circumstances surrounding these by-elections.

As the House of Representatives Practice makes clear, there is no statutory period within which I must issue the writ. As a matter of principle, Speakers have generally sought to issue writs as soon as electorally practicable to ensure that electors are not without a representative here in the House for longer than necessary. However, the timing of the calling of each by-election has varied considerably because of circumstances, and in this case there has been a unique set of circumstances.

While there has been much commentary around the five by-elections occurring on the one day, the Australian Electoral Commission actually has to consider whether this is feasible and desirable. The advice I have received from the Electoral Commissioner is that although this is the largest number of by-elections to be conducted at the one time since Federation, and the holding of them across four states adds complexity, the AEC believes conducting the by-elections on the one day is the preferred option. I intend to follow this preferred option.

As noted in my statement on Monday, the Electoral Commissioner advised me that the government was considering urgent changes through regulation to the nomination process to ensure that all candidates are aware of their obligations under section 44 of the Constitution. The implementation of these changes prior to the by-elections was supported by the Electoral Commissioner and by the Joint Standing Committee on Electoral Matters in a unanimous recommendation. The latest advice I have from the Electoral Commissioner is that the regulations have been signed by the Special Minister of State and will be submitted to the Governor-General soon for his consideration, expected to be 29 May. Regardless of the date for submission to the Federal Executive Council, the AEC has advised me that it has commenced preparations to implement the regulations and will require approximately two weeks to do so. The implementation would need to be complete prior to the writs being issued.

Honourable members interjecting—

The SPEAKER: I say to members: I’m giving this update as a courtesy—members on my right—and it would be in all their interests to listen to the entire statement. Let me repeat: the implementation would need to be complete prior to the writs being issued because nominations open as soon as writs are issued, at which time candidates can start nominating. This is, in part, to accommodate the requirements of the Electoral Commission but, more importantly, so that all candidates in the forthcoming by-election—all candidates—have sufficient time to comply with the new requirements.

Turning now to the date for the by-elections, the Electoral Commissioner has advised me that there is a complication of the school holiday period affecting all four states subject to by-elections, extending across a three-week period from 30 June to 21 July. Although, as the commissioner advises, it is possible to hold by-elections in the school holiday period, it does create additional difficulties for voters and risks disenfranchisement and low turnout. Let me say this is particularly—particularly—the case in by-elections, for, whilst in a general election there are significant absentee voting opportunities outside the electorate in which a voter resides, in by-elections there are not. If there is to be a single date for all by-elections and the school holidays are to be avoided, this pushes the next possible date to 28 July. Although the Electoral Commission—

Honourable members interjecting—

The SPEAKER: Members on both sides! Members on my right! The member for Bendigo! I say to those members interjecting: the majority of members are seeking to listen to my statement. Although the Electoral Commission would not usually provide advice about a preferred date, I can advise members on this occasion the Electoral Commissioner has advised that 28 July is the optimal date. As the commissioner notes in his advice to me: ‘This achieves three things. It provides sufficient time for the AEC to implement the changes’—

Mr Dreyfus interjecting—

The SPEAKER: The member for Isaacs is warned. The commissioner’s advice states: ‘It allows sufficient time for the AEC to implement the changes, enables prospective candidates to comply with the new requirements and ensures that voters are not disenfranchised.’ I consider it is prudent in the current circumstances that I follow this advice and allow time for the changes related to section 44 to be implemented and avoid the by-elections taking place in the school holidays. I, therefore, propose to accept the commissioner’s recommendation for the optimal date of 28 July. I will consult with the AEC about the date to issue the writs and the relevant dates for the by-elections and will advise the House when the dates have been settled.

One very important consideration for me has been that this will not impact on the elected members’ ability to take up their seats in the House at the earliest opportunity because of the break in the sittings from 28 June until 13 August. The earliest date that any elected members could now take their seats regardless of the date for the by-elections is the resumption of the sittings on 13 August. Because of the particular nature of the issues surrounding these by-elections, I’m going to table the advice I’ve received from the Electoral Commissioner. There are two pieces of correspondence from the Electoral Commissioner, one dated 17 May 2018 and a further, updated letter of 23 May 2018, and this is not a precedent for the tabling of such advice by Speakers in the future.

Mr Pyne: Mr Speaker, during your remarks, the member for Barton made a very unparliamentary remark, and she should withdraw it.

Mr Burke interjecting—

The SPEAKER: I say to the Manager of Opposition Business: the majority of members were listening. Some were interjecting and, surprisingly, not wanting to hear the statement or the reasons, but I have read them into the Hansard and the correspondence has been tabled. I couldn’t hear what the member for Barton was particularly saying but I will ask her, as is the custom, whether she made an unparliamentary remark. The Manager of Opposition Business on indulgence.

Mr BURKE (Watson) (15:21): On indulgence, I’d like to note a few things about the decision, respecting the fact that the decision is not only made by you in terms of the advice that you have received from the Australian Electoral Commission, and ask that my comments be seen very much in that context. There are a number of by-elections which have occurred since you took the chair. In North Sydney, the writs were issued within three days; in Bennelong, two days; in New England, the same day; in Batman, six days. It will now be, for these by-elections, a delay of 14 days and, instead of the people going to vote 35, 36 or 44 days later, they will go to vote 79 days later.

Mr Pyne interjecting—

Mr Dreyfus interjecting—

The SPEAKER: The member for Isaacs will leave under 94(a).

The member for Isaacs then left the chamber.

The SPEAKER: I’m going to hear the Manager of Opposition Business on indulgence briefly. I’m happy to hear the Leader of the House on indulgence, and then I will exercise a brief right of reply, but I’m not going to debate the matter.

Mr BURKE: I also respect that the decision is now made. The letters that you have tabled you said were on 17 May and 23 May. Had the decision been made within the time that the other by-election decisions were made, it would have been made before those letters were even received from the Australian Electoral Commission. The Australian Electoral Commission have claimed they want all candidates to know the new rules. I think that, for anyone running for these by-elections, if they don’t know by now what the High Court has decided, there is nothing that will help them!

The AEC normally would not recommend a date, as you have said. On this occasion, they have recommended a date, and they have used the fact that they want this new regulation as the reason. Now, they appeared before the relevant inquiry months ago. They had their involvement with the relevant inquiry through appearing last year. The regulations and discussions with the opposition happened more than a week ago. We have a situation now where that 79-day delay, which has not applied anywhere else, is on the basis of the Australian Electoral Commission, which, if the Prime Minister went down to Yarralumla and called an election today, would be able to conduct it for 150 seats in 33 days time. Instead, they say it has to be delayed all this period and it just happens to be on the day of the Labor Party national conference. It’s a what-a-coincidence moment! What a coincidence from the Australian Electoral Commission!

The decision now made—

The SPEAKER: The Manager of Opposition Business will resume his seat. I say to the Manager of Opposition Business that the indulgence is brief and, as I said, in explaining these reasons, as I’ve done, I’ve tried to do it as a courtesy to the House. As I pointed out on Monday, the past practice has simply been for the Speaker to report resignations and then report after the writs have been issued. I’m sorry that some elected members are either unaware of that or don’t appreciate it. The Leader of the House on a point of order.

Mr Pyne: Mr Speaker, the point of order I wish to make is that an indulgence granted by you is also a courtesy. It’s not an opportunity to have a debate and it certainly is not an opportunity to reflect on the Chair, which the Manager of Opposition Business is now perilously close to doing. You granted him an indulgence, which was generous, and he is taking advantage of it to debate a matter which, as a courtesy, you chose to tell the House of Representatives when you didn’t need to. He should stop reflecting on the Chair.

The SPEAKER: The Manager of Opposition Business on indulgence—and he will wrap up his remarks.

Mr Burke: I raise one final point, Mr Speaker. Because of the way the Australian Electoral Commission have written to you and the arguments they have put, and because of the initial delay in waiting for their letters, communities around Australia that could have a representative on 16 June, had the writs been issued immediately, instead will not be represented in this place. What was allowed to happen in the other by-elections, including of members on that side, now means there will be a delay in parliamentary representation which could have been avoided and would not occur in the circumstances of a general election.

The SPEAKER: As I said, I’m not going to debate the matter. It was my decision to grant the Manager of Opposition Business indulgence. I’m going to make a couple of remarks—and the House ought to be capable of listening to them, and those members who want to listen to them should be able to do so without a wall of interjections. I’ll make a couple of points. Firstly, the Manager of Opposition Business made a point about the date of the first letter being received. Let me assure members of the House, without going into the details of what are private consultations, that I did not simply sit there as Speaker and wait for a letter to arrive. You have oral consultations and written advice, which I had requested; it’s made clear in the correspondence at the start. With respect to the timing of the calling of the other by-elections, without going over all the issues again, I just reiterate that the special circumstances relate to section 44 and the regulation and to school holidays. I simply make that point.

On the inference that this is unprecedented—I think you said 79 days—I’m happy to stand corrected but I do spend a lot of time considering these issues and I’m going to make a point. I think you’ll find that the Gippsland by-election in 2008—I carry a lot of these figures around in my head and I’m pretty sure they’re right—took 80 day. and I think it took about 40 days to issue the writs. If there were any extenuating circumstances, I wasn’t aware of them at the time. Both the Manager of Opposition Business and the Leader of the Opposition were in the House at the time, so if they can think of any—I would just make that point. And that was a single electoral event, not five events caused across four states. So I’d just like to make those points. The letters have been tabled. The Electoral Commissioner has provided those two pieces of very detailed correspondence outlining the reasons. I wanted to outline those to the House. I thought that was the right thing to do, notwithstanding I knew that a few members would find it impossible not to interject while I did it. I could have very easily issued a press release on the matter. I could have very easily done that; that’s what other Speakers have done. For those who have listened in silence, I thank you, because I owe it at least to all of you to explain the reasons. I thank the House.

Honourable members: Hear hear.

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Malcolm Farnsworth
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