The Constitutional Role of Electoral Management Bodies: The Case of the Australian Electoral Commission

DOI10.1177/0067205X20955097
Date01 December 2020
Publication Date01 December 2020
AuthorPaul Kildea
SubjectArticles
FLR955097 469..482 Article
Federal Law Review
2020, Vol. 48(4) 469–482
The Constitutional Role of
ª The Author(s) 2020
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DOI: 10.1177/0067205X20955097
The Case of the Australian
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Electoral Commission
Paul Kildea*
Abstract
Electoral management bodies are increasingly being recognised as ‘fourth branch’ institutions that
have a role to play in safeguarding electoral democracy against government attempts to undermine
the fairness of the electoral process. This article explores the extent to which the Australian
Electoral Commission (‘AEC’) fulfils that constitutional function by facilitating and protecting
electoral democracy. It demonstrates that independence, impartiality and a supportive legislative
framework help the AEC to be effective in performing these roles, but that inadequate powers,
lack of budgetary autonomy and answerability to political actors operate as constraints. More
generally, the analysis presented shows the value of expanding our understanding of the role of
fourth branch institutions so that we take account of their activities in both fostering and safe-
guarding key democratic values.
I Introduction
Electoral management bodies (‘EMBs’) are increasingly being recognised as ‘fourth branch’
institutions that have a role to play in safeguarding electoral democracy against government
attempts to undermine the fairness of the electoral process.1 That role is more traditionally asso-
ciated with the judiciary, but there is growing awareness that EMBs, as bodies that enjoy some
independence from the political branches, may also be equipped to defend democracy ‘outside the
courts’. This article explores the extent to which the body responsible for managing Australian
federal elections, the Australian Electoral Commission (‘AEC’), fulfils that constitutional function
by facilitating and protecting electoral democracy. It finds that the AEC makes significant
1. Mark Tushnet, Advanced Introduction to Comparative Constitutional Law (Edward Elgar, 2nd ed, 2018) ch 5; Michael
Pal, ‘Electoral Management Bodies as a Fourth Branch of Government’ (2016) 21(1) Review of Constitutional Studies
85.
* Senior Lecturer at the Faculty of Law, University of New South Wales, Sydney, New South Wales 2052, Australia. The
author may be contacted at p.kildea@unsw.edu.au.

470
Federal Law Review 48(4)
contributions in both areas and is pivotal to the implementation of the constitutional mandate that
MPs be ‘directly chosen by the people’.2 The Commission nonetheless faces constraints, among
them its statutory mandate, lack of budgetary independence and its answerability to political
parties, which limit the extent to which it can safeguard Australia’s electoral democracy.
II Electoral Management Bodies as Fourth Branch Institutions
Much has been written on the idea that the traditional understanding of government as comprising
three branches—the legislature, the executive and the judiciary—does not reflect the operation of
the modern administrative state.3 It is argued that the state is better understood as comprising four
(or more) branches as this enables us to account for the emergence of various institutions that,
while technically housed in the executive arm, operate with a degree of independence from
government and work to hold officeholders to account for their exercise of public power. Among
the bodies commonly recognised as part of the ‘fourth branch’ are ombudsmen, administrative
tribunals, auditors-general and anti-corruption commissioners and, the focus of this article,
EMBs.4 On one view, an institution must be entrenched in the constitution for it to qualify for
‘fourth branch’ status.5 The South African constitution, for instance, entrenches several such
bodies, including the electoral commission, which is recognised in ch 9 as a ‘state institution
supporting democracy’.6 Another interpretation, prominent among Australian scholars and
adopted in this article, places less emphasis on legal status. It instead views the ‘fourth branch’
as comprising (mostly statutory) agencies whose oversight functions and relative independence
distinguish them from other executive bodies and make them deserving of their own separate
classification.7
The fourth branch of government is sometimes referred to as an ‘integrity branch’.8 While
EMBs fit naturally within that, given their commitment to electoral integrity, their membership of
such a branch is better accommodated if we expand its scope to encompass the health of electoral
democracy. This conception aligns with that of Ackerman and Tushnet, who argue that the modern
state requires a branch devoted to the protection of democracy and that EMBs should be central
actors within it.9
Both authors view a fourth branch as important to addressing matters in which the executive
and/or legislature have a conflict of interest and therefore cannot be trusted to perform their
democratic functions in the public interest.10 The fairness of the electoral process is said to be one
area particularly susceptible to partisan interference, given the temptation for incumbents to
2. Commonwealth Constitution ss 7, 24.
3. Bruce Ackerman, ‘The New Separation of Powers’ (2000) 113(3) Harvard Law Review 633; Tushnet (n 1); James
Spigelman, ‘The Integrity Branch of Government’ (2004) 78(11) Australian Law Journal 724.
4. Pal (n 1); John McMillan, ‘Re-Thinking the Separation of Powers’ (2010) 38(3) Federal Law Review 423, 440.
5. See, eg, Pal’s notion of a ‘fourth branch’ model: Pal (n 1).
6. Heinz Klug, ‘Accountability and the Role of Independent Constitutional Institutions in South Africa’s Post-Apartheid
Constitutions’ (2015–16) 60(1) New York Law School Law Review 153. Globally, constitutional recognition of
electoral commissions is becoming more common: Svitlana Chernykh et al, ‘Constitutions and Election
Management’ in Pippa Norris, Richard W Frank and Ferran Mart´ınez i Coma (eds), Advancing Electoral Integrity
(Oxford University Press, 2014) 94, 102.
7. McMillan (n 4).
8. Spigelman (n 3).
9. Tushnet (n 1); Ackerman (n 3).

Kildea
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manipulate electoral laws and procedures to their advantage.11 Ackerman, for instance, cites the
potential for a lawmaking majority to ‘insulate itself’ from electoral competition by suspending
elections, limiting free speech or manipulating electoral laws.12 The pursuit of political ‘self-interest’
here can take on different forms: individual legislators might wish to alter electoral rules to assist with
their re-election; political parties might want to do the same to expand their share of seats in the
legislature; and major parties may have an interest in changing the rules to shut out minor party
challengers.13 The courts will sometimes be asked to step in to review such behaviour, but the judicial
branch may not always be well-suited to this role. The task of protecting democracy will often require
a type of expertise that is not found on the judicial bench and is prone to entangle the courts in high-
stakes political matters that could expose them to accusations of bias.14 Fourth branch institutions,
such as EMBs, are therefore required if democracy is to be protected. Among the ‘protective’
functions that an EMB might perform are the resolution of electoral disputes and the drawing of
electorate boundaries.15
This account of a fourth branch devoted to democracy is a useful starting point, but it warrants
expansion in two ways. First, it should be broadened to encompass threats to electoral democracy
that emerge from sources other than political self-interest. In recent years, there has been renewed
attention on conduct by candidates and parties that undermines the capacity of voters to exercise a
free choice at the ballot box. Particular concern has been expressed about the influence of money in
politics, including the sale of access to politicians, and the spread of misinformation during
election campaigns.16 Further, there is ongoing concern about conduct that weakens electoral
integrity, such as foreign interference in elections. These are matters that should be part of the
brief for a fourth branch that is concerned with protecting electoral democracy.
Second, in thinking about the role of fourth branch institutions, we should reflect not only on
their capacity to protect but also to facilitate certain values. Even if we naturally focus on the
protective role given the notion that a fourth branch may help guard against encroachments from
the political arms of government, we should not lose sight of the way in which that branch
promotes as well as defends integrity, democracy or some other value. The Australian Human
Rights Commission, for instance, oversees legislation and policy for consistency with human rights
(protective), but also reports to the minister on actions that would promote rights and undertakes
public education initiatives (facilitative).17 And the Solicitor-General provides legal advice so as to
facilitate government compliance with the Constitution.18 Any discussion of a branch dedicated to
democracy should therefore pay attention to the ways in which its member agencies facilitate
10. Tushnet (n 1) 109; Mark Tushnet, ‘Institutions Protecting Democracy: A Preliminary Inquiry’ (2018) 12(2) Law &
Ethics of Human Rights 181, 183.
11. Tushnet (n 1) 109; Tushnet, ‘Institutions Protecting Democracy’ (n 10) 183.
12. Ackerman (n 3) 716.
13. Dennis F Thompson, Just Elections: Creating a Fair Electoral Process in the United States...

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