Dunstan By-election Updates plus problems with the SA Electoral Act

After looking the clear winner of the Dunstan by-election on Saturday night, Labor has finished with a narrower margin than expected.

Dunstan had been held by former Liberal Premier Steven Marshall since 2010. He squeaked home with a narrow 0.5% margin at the 2022 state election which meant the seat was always going to be a hotly contested by-election on his retirement. (For background on the by-election and the results see my profile on the ABC Elections website. Final figures published.)

On election night the Labor Party finished on 53.8%, boosted to 54.0% on Sunday by check counting. At that point, based on declaration vote trends at the 2022 state election, Labor would have expected to finish with 52.7% once all votes were counted.

In fact the race has been much closer. On Thursday 28 March, Labor’s Cressida O’Hanlon is on 50.8% after preferences with a lead over Liberal Anna Finizio of 347 votes. The count is at 80.5% of enrolment with only a handful of outstanding postal votes remaining to be counted. Due to Good Friday, postal vote return closes on Tuesday 2 April to be followed by the formnal distribution of preferences.

Labor will win after a swing of 1.4%, down substantially on the 4.5% swing seen on election night.

The table below shows how the count narrowed with the release of each successive declaration vote count.

Dunstan By-election – Progressive Counts
Counted 2-Party % Progressive 2-Party %
Count details Formal Inf. % Cntd ALP LIB ALP LIB
Election Night 12,779 304 48.3 54.0 46.0 54.0 46.0
Monday Count 1 1,781 17 54.9 41.8 58.2 52.5 47.5
Tuesday Count 1 686 4 57.4 43.7 56.3 52.1 47.9
Tuesday Count 2 3,763 57 71.5 46.3 53.7 51.0 49.0
Wednesday Count 1 1,773 34 78.2 50.5 49.5 50.9 49.1
Wednesday Count 2 493 6 80.0 46.0 54.0 50.8 49.2
Thursday Count 112 1 80.5 50.9 49.1 50.8 49.2
Tuesday Final Postals 79 2 80.8 48.9 51.1 50.8 49.2

Looking back at past SA by-elections, this strong decline in Labor vote seems to be a feature of the state.

At the 2014 Fisher by-election, Labor’s final result narrowed by 2.2% compared to election night. The 2015 Davenport by-election saw a 1% drop in the Labor vote, the 2022 Bragg by-election a huge 4.7% drop in Labor vote, and now Dunstan has produced a 3.2% narrowing.

In Dunstan the swing on polling day votes was 3.5% to Labor. The swing on declaration votes is 1.8% against Labor.

Both the Bragg and Dunstan by-elections saw roughly the same ratio of Declaration votes, in both seats around 40% and little changed from the previous state election.

The Dunstan by-election saw roughly the same number of postal vote applications and about 2,000 extra pre-poll votes. There were no Absent votes at the by-election, and totals for Absent votes are not published in South Australia. My estimate for the 2022 election is that the extra pre-polls balance out with how many Absent votes there were in 2022.

Election results in all other states indicate that Absent votes tend to be more Labor leaning than all other categories of declaration votes. There being no Absent votes is one reason why by-elections seem to see bigger anti-Labor swings with declaration votes.

Turnout is down 9.6% on the state election though this may go up slightly at the final count. The absence of Absent voting at by-elections is one of the reasons credited with why turnout is down at by-elections, especially in small inner-city districts.

Change the Way Pre-poll Votes are Issued and Counted

Still, this dramatic narrowing is another argument for why South Australia needs to change how it takes and counts pre-poll votes. In SA pre-poll votes are still taken as declaration votes meaning votes are placed in envelopes with the voter’s details on the outside. As these details must be checked before opening and counting, it is impossible to count declaration pre-polls on election night.

Even worse, South Australia has a unique provision that requires polling day rolls to be scanned before declaration votes can be processed. In every other jurisdiction, declaration votes are checked against the roll, but in SA they are checked against polling day roll mark-off to identify possible multiple votes. Only a handful are ever found by this peculiar South Australian provision, but it delays any counting of non-polling day votes until at least Monday afternoon.

The solution is to do what every other state does and take within district pre-poll votes as ordinary votes, a ballot paper issued and placed in a ballot box on completion. This allows these votes to be counted on election night. Out of district pre-polls would still be issued as declaration votes.

An omnibus electoral reform bill based on recommendations by the Electoral Commissioner was introduced in 2020 by Liberal Attorney-General Vicki Chapman, but with a government proposal for optional preferential voting (OPV) tacked on. OPV resulted in the bill being rejected by parliament. The bill had included a provision that turned pre-poll votes into ordinary votes.

In 2021 Chapman introduced a second bill minus optional preferential voting. It included all the Electoral Commissioner’s recommendations except one to allow election day enrolment, as allowed in several other states. Labor objected to this not being included in the bill, as well as some issues to do with election advertising in local papers and a proposal to expand telephone voting to include overseas voters.

These issues became a reason for Labor to filibuster the bill, not so much to prevent its passage, but more to prevent the Marshall government proroguing parliament early. Labor had skilfully used parliamentary procedures over the previous four years to force a number of ministerial resignations and impose a new Speaker against the government’s will.

In the end the bill never passed as the government ended the session before the amended electoral bill came back from the Legislative Council.

As a result, pre-poll votes still aren’t counted on election night. The failure of the bill also prevented an expansion of telephone voting to take votes from voters with Covid. In the end emergency regulations were gazetted allowing voters to pick up postal voting packs at Covid testing centres

The Electoral Commissioner has made the same recommendations as in 2018 in his report on the 2022 election.

While visiting Adelaide in 2023, I met with Attorney-General Kyam Maher on pre-poll voting and other matters to do with declaration votes. He was interested in my experience with declaration vote reporting in other states and was receptive to doing something about the issue.

To fix the problem, I recommended the following changes to bring South Australia in line with electoral practice in other states. (There’s been a slight change of wording in the previous sentence to deal with someone on Twitter who thinks these were written recommendations advising the SA Attorney-General. They weren’t.)

  • Within-district pre-poll votes be issued as ordinary votes and they be counted on election night.
  • Large electorates or urban electorates near major town centres such as the CBD, Noarlunga and Modbury, be allowed to have joint pre-poll centres taking ordinary votes for multiple nearby districts.
  • Districts with more than one pre-poll centre count and report the centres separately as takes place Federally and on some other states.
  • Out-of-district pre-polls would still be issued as declaration votes.
  • That the practice of lumping of all declaration votes together into a single total be ended.
  • Postal votes, absent votes, pre-poll declaration and provisional votes should be reported separately, as they are in every other jurisdiction. This greatly aids understanding of the post election count.

If the changes are going to be made, they need to be introduced well before the election so that the Electoral Commission can produce training material and alter ballot paper handling procedures and modify election management and result reporting systems. The problem with the 2021 reform bill was, even if it had passed, it was too late for the Electoral Commission to implement the required changes before the 2022 election.

Most attention on the Dunstan by-election will be with Labor gaining the seat, a once-in-a-century case of a government taking a seat from the Opposition.

But the dramatic narrowing of the result in post-election counting is a reminder that the government and parliament need to move on the Electoral Commissioner’s recommendations to change how in-district pre-poll votes are taken and allow them to be counted on election night.

3 thoughts on “Dunstan By-election Updates plus problems with the SA Electoral Act”

  1. Thanks. This is a very helpful summary. On the issue of pre-polls, I have seen some commentary which mentions instances of people casting pre-poll votes and then, deliberately or otherwise, voting again on election day. Is this a risk to the change you propose and, if so, how do other states mitigate the risk (notwithstanding the impact may be negligible)?

    COMMENT: The rolls are all scanned after the election. Anyone who votes pre-poll then on the day is detected as having voted twice and sent a please explain. The incidence of double voting is tiny. If in a close contest the number of double votes could have changed the result then the Court of Disputed Return could void the results. A result voided on double votes has never happened in my lifetime.

  2. People who are detected voting more than once run the risk of being flagged on the electoral roll and having to make declaration votes in future elections. This not only prevents them from having more than one vote counted, but means that it will take them longer to vote in every future election, as they will have to fill in a declaration envelope each time.

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