The New South Wales Legislative Council (the Upper House) consists of 42 Members who represent the whole state in Parliament. At each New South Wales State election, 21 Members are elected to serve two terms of Parliament - that is, a maximum period of 8 years. The candidates for a Legislative Council election are presented in a state-wide ballot.
The method of voting for the Legislative Council is known as optional preferential proportional representation.
The name of each candidate and their political party affiliation is shown on the ballot paper and the voter has the choice of group voting (i.e. usually for a particular party) or individual voting (for individual candidates). In a group vote, only one group need be selected. In individual voting, at least 15 candidates must be voted for in the order of preference of each voter. This may be achieved by voting "1" in one of the group voting squares above the line, and then numbering other group voting squares if desired in the order of the voter's preferences; or by numbering at least 15 squares below the line for individual candidates.
The counting of the votes is based upon the 21 candidates being elected each having obtained a "quota" of votes, with typically 4.55% of the total valid primary votes being sufficient for a candidate to gain a seat in the LC. If fewer than 21 candidates receive a quota, a process of transferring preferences from the candidates with the least primary votes begins until all vacancies are filled. The count and distribution of preferences are conducted using the NSW Electoral Commission's computer system.
Achieving a final result is complex, as surplus votes (i.e. those a candidate receives above the quota of 4.55%) are redistributed to other candidates using a formula, and this process continues until all 21 Members of the Legislative Council have been elected.
The ballot papers for the LC are then forwarded to the Electoral Commissioner for safekeeping until the period has expired during which the election can be disputed in the Supreme Court (acting as the Court of Disputed Returns) i.e. within 40 days of the return of the writ or, if a petition has been filed, the Court of Disputed Returns has made a determination, or the period of 6 months after the day of polling has expired.
There are no by-elections for the Legislative Council. Casual vacancies (caused by a Member resigning or dying mid-term) are filled by electing a new Member at a joint meeting of both Houses of Parliament.
Under section 22B of the Constitution Act 1902, Members of the Legislative Council serve a term of eight years which comprises of two, four-year terms of the Legislative Assembly.
Unlike the Assembly, the Council is a continuing House which does not expire and cannot be dissolved. However, the Legislative Council is unable to conduct any parliamentary business from the day of expiry of the Legislative Assembly until the day after the return of the writs (s 22F). The Governor prorogues the Council prior to the expiry of the Legislative Assembly until the first session of the new Parliament, from which day the Council conducts business. Under section 10A(2) of the Constitution Act 1902, the Governor cannot prorogue either House between the fourth Saturday in September in the year preceding an election, and 26 January in the year of the election.
Section 74 of the Electoral Act 2017 states that the writs for an Assembly general election are to be issued:
if the Assembly has expired - on the Monday following the day on which the Assembly expired, or if the Assembly was dissolved - within 4 clear days after the day the proclamation dissolving the Assembly was published in the Gazette.
A writ for a periodic Council election is to be issued on the same day as the writs for the concurrent Assembly general election are issued.
What is a writ?
A writ is a document issued by the Governor and signed by the Premier, commanding the Electoral Commissioner to hold an election. It contains dates for the close of rolls, the last day for nominations by candidates, the polling day and the day the writs are to be returned.
One writ is issued for the 21 vacancies to be filled in the Legislative Council. The Speaker issues writs for casual vacancies in the Assembly.
Part 7 of the Electoral Act 2017 sets out particular duties of the Electoral Commissioner throughout the electoral process.
The Legislative Assembly has 93 Members. Members of the Legislative Assembly are elected for a maximum term of 4 years. Each Member of the Legislative Assembly is elected to represent an electoral district of New South Wales. In an election for the Legislative Assembly electors can only vote for the candidates seeking election for the electoral district in which they are enrolled.
The method of voting for the Legislative Assembly is known as optional preferential.
The name of each candidate and their political party affiliation is shown on the ballot paper. The voter places the number "1" in the square next to the name of the candidate who is the voter’s first choice. No other vote need be made but the ‘optional preferential’ part gives the voter the option of allocating further preferences by placing consecutive numbers, beginning with the number "2", in the squares next to the names of additional candidates.
To be elected, a candidate must receive more than half the number of the first preference votes taken in the electoral district. If no candidate receives more than half of the first preference votes, a distribution of preferences takes place. In this process, the candidate with the fewest votes is eliminated and their ballot papers are distributed to the remaining candidates, according to the next available preference shown on them. Those ballot papers on which only a first preference is shown cannot be distributed and are set aside as exhausted.
This process is repeated with one candidate being eliminated each time, until a candidate has more than half the number of the votes remaining in the count.
Should a Member resign or die mid-term (between general elections), a by-election is held in that particular electorate only to elect a new Member.
Section 24 of the New South Wales Constitution Act 1902 states that a term of the Legislative Assembly is four years, unless it is dissolved sooner under section 24B of the Act.
Under section 24 of the Constitution Act a Legislative Assembly expires on the Friday before the first Saturday in March, four years after the previous general election.
Section 24A of the Constitution Act states that general elections take place on the fourth Saturday in March, following the expiry of the Legislative Assembly three weeks earlier.
Section 24B of the Constitution Act states that the Governor may, by proclamation, dissolve the Legislative Assembly sooner than the prescribed four-year period under certain circumstances (e.g. if a motion of no confidence in the Government is passed by the Legislative Assembly, or if the Assembly rejects a bill which appropriates revenue or moneys for the ordinary annual services of the Government).
Section 74 of the Electoral Act 2017 states that writs for New South Wales state elections are issued:
What is a writ?
Writs for an election are formal orders issued by the Governor requiring a general election to be held. When a vacancy occurs in the Legislative Assembly during a term of Parliament, it is the Speaker who issues the writ calling for a by-election to fill the casual vacancy.
Under the Electoral Act the New South Wales Electoral Commissioner is responsible for the conduct and administration of general elections and by-elections.
Election officials assist the Electoral Commissioner to conduct elections. Under section 81 of the Electoral Act the Electoral Commissioner appoints election officials as the election managers of each electoral district and as voting centre managers for each voting centre.
Section 164 of the Electoral Act states that, as soon as practicable after the close of voting, voting centre managers and other election officials count the ballot papers and notify the Electoral Commissioner of the result of each poll. In turn, as soon as practicable after a count has been completed, the Electoral Commissioner declares the result of the poll and endorses the name of the person elected on the writ, which is subsequently returned to the Governor or the Speaker in the case of a by-election.
Section 78 of the Electoral Act states that the Assembly or the Council must meet no later than seven clear days after the date for the return of the writs after a general election. The meeting date and time is set by way of a proclamation from the Governor.
Both Houses meet on the date and at the time that is specified in the Governor's proclamation.
The Members of the Legislative Assembly, having gathered in the Assembly Chamber, then attend in the Legislative Council Chamber to hear the commission for the opening of Parliament being read.
Assembly Members return to their Chamber. Certain Members of the Legislative Council, usually the Leader and Deputy Leader of the Government and the next senior Minister commissioned, will administer the Pledge of Loyalty or Oath of Allegiance to other Members. Members are called in the order listed on the writ. Under section 12 of the Constitution Act a Member cannot sit or vote in the House until they have taken the Pledge or Oath.
The Council then elects a President, a Deputy President and an Assistant President. The Council then proceeds on to other business.
In 2011 and 2015 the commission opening was followed by the Governor attending Parliament for the presentation of the President by the Members of the Legislative Council, and for the Governor to give a speech to both Houses to set out the Government's legislative agenda for that Parliament. This is likely to be followed in 2019.
Assembly Members then return to the Assembly Chamber and certain Members, usually the Premier, the Deputy Premier and the next senior Minister commissioned, will administer the Pledge of Loyalty or Oath of Allegiance to other Members. Members are called in order of electorate (A-Z) to take the Pledge or Oath and sign the roll of the House. Under section 12 of Constitution Act a Member cannot sit or vote in the House until they have taken the Pledge or Oath.
The Assembly then elects a Speaker, a Deputy Speaker and an Assistant Speaker. After, the Premier traditionally presents the Law of Evidence Bill. This bill is symbolic and is introduced at the commencement of each session in order for the Assembly to assert its right to meet and legislate.
Assembly Members then return to the Council Chamber to hear the Governor's Opening Speech to the Parliament giving reasons for calling the Parliament together.
The recent practice has been for the Legislative Assembly to be prorogued until the date it is due to expire (and the Legislative Council is prorogued until the date the new Parliament will meet after the election). Members are unable to meet collectively in Parliament. However, Members of the Legislative Assembly still undertake their duties and responsibilities as Members in their electorates.
This is reflected in the fact that Members continue to receive a salary and most of their entitlements/allowances up to the day preceding election day.
In the case of the Premier and Ministers, after a general election, they still continue to exercise the duties and responsibilities of their offices until the Ministry is reconstituted or until the Premier resigns (an action which automatically involved the resignation of all other Ministers).
Members act in a caretaker capacity from the date of expiry until election day. Following the declaration of the poll they assume the responsibilities of their office. The Government acts in a caretaker capacity until the formation of a new Government.
Under the Parliamentary Remuneration Act 1989 a person elected as a Member of the Legislative Assembly is deemed to become a Member on the date of election (i.e. election day) and ceases to be a member if not elected, from election day.
For more information on State Elections go to the New South Wales Electoral Commission (NSWEC) website.