The resignation of the Labor member for the southern NSW seat of Eden-Monaro, Mike Kelly MP, raises the question of how a by-election might be conducted for the seat under conditions of social distancing during the COVID-19 pandemic.

Timing

Under section 33 of the Australian Constitution the writ for a by-election to fill a vacancy in the House of Representatives is issued by the Speaker of the House.

The Speaker has considerable discretion regarding the timing of by-elections. There is no requirement that a by-election must be held within a certain period after a vacancy arises—by-elections have been held as soon as 17 days, or as late as 82 days, after vacancies. There have even been occasions where a by-election has not been held at all due to an approaching general election (in one instance a seat remained vacant for 128 days). The timing of by-elections is discussed in more detail in a Library publication on by-elections since 1901.

The Speaker has stated that he will take advice from the Australian Electoral Commission (AEC) regarding election dates.

If the by-election is held during the COVID-19 pandemic, it will likely look much like every other recent Australian election—with higher rates of pre-poll and postal votes, but with many voters voting at a polling place on election day.

Possible strategies for conducting the by-election

In the legislation governing federal elections—the Commonwealth Electoral Act 1918—there is no provision for the AEC to conduct elections entirely by postal vote. In order to vote by postal vote, an elector must apply to the AEC for a postal vote (either on an election-by-election basis, or as a ‘general postal voter’ for all elections). If the Eden-Monaro by-election is held during the COVID-19 pandemic, the AEC could run a campaign encouraging people to postal vote, direct voters to lodge applications online, and also widely distribute postal vote applications. At the 2019 federal election, 5.6 per cent of the votes in Eden-Monaro were postal votes, which is close to the average for NSW.

To minimise the health risk for those voting in person at polling places, one possible strategy to facilitate social distancing would be to encourage voters to avail themselves of early voting, thereby spreading polling place attendance out over time. According to Parliamentary Library calculations, at the 2019 federal election 41.3 per cent of Eden-Monaro voters pre-poll voted compared to 31.3 per cent across NSW, which suggests that a significant proportion of Eden-Monaro voters are inclined to vote early.

For those voters who do not pre-poll or postal vote but vote in person on election day, the AEC will need to implement social distancing measures. Such voters could encounter polling places set up to facilitate spaced queuing, likely making voting a slower process than voters might be used to (although significant early voting would reduce the numbers of voters at polling places).

The Queensland state by-elections and local government elections on 28 March 2020 may provide an indication of how the Eden-Monaro by-election could transpire. The Brisbane Lord Mayoral elections, for example, saw the rates of pre-poll and postal voting essentially doubling, with only around one-quarter of voters voting in person on election day (although turnout remained relatively high). Two weeks after the Queensland elections there was no evidence of community transmission of COVID-19 through voting, and it was also suggested that the high rate of pre-poll voting helped prevent the election spreading the virus further.

The requirement to count votes while maintaining appropriate social distancing may mean that the election will take some time to count, especially if there are high numbers of postal votes. As Eden-Monaro is currently held by Labor on a margin of less than one per cent, the election may be very close. Postal votes can be returned for up to two weeks after election day, and if the count is close, the AEC may need to wait until all postal votes are returned and counted before declaring the result. The last of the Queensland local government elections were declared more than three weeks after polling day, and the state by-elections were declared ten days after polling day.