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Friday, 23 November 1979

Senator McINTOSH (Western Australia) -I move:

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows:

It is necessary in speaking to this Bill to summarise the events which led ultimately to its introduction. Always Aboriginal people have faced impediments to exercising effectively the right to vote. Adult franchise as it has applied for all other Australian-born citizens, at least for the lower houses of our Parliaments, has never existed for Aborigines. Sometimes discrimination was oven- Aborigines had to be granted citizen rights before they could enrol. Even now under Commonwealth law and the law of most States Aborigines, though entitled to enrol and vote, are not compelled to do so as are other native-born or naturalised Australians. Even without deliberate legal impediments, the economic and cultural gap between many Aborigines and the mainstream of Australian society imposes a barrier between them and the effective use of the franchise. Other minority groups, as the Minister for Aboriginal Affairs (Senator Chaney) mentioned on June 6, may face similar difficulties.

This Bill applies only to Aborigines, not because we are indifferent to these other groups, but because the only Commonwealth power relevant in this context, is a restricted powerrestricted that is to make laws pertaining to Aborigines. The Bill 's scope is further restricted to enrolment to vote. It does not encompass actual voting procedures. The reasons I will detail later. The absence of overt legislative discrimination, though a pre-requisite to equality of opportunity to vote, does not of itself guarantee equal opportunity. Difficulties in oral, written or physical communication arising from a different cultural and geographic background constitute an impediment for some groups even if the letter of the law grants equality. Specifically complex or restrictive enrolment requirements present greater problems for people whose background and experience is outside the mainstream of our society.

Recent amendments to the Electoral Act of Western Australia impose more restrictive enrolment procedures than those of the Commonwealth or any other State with which Aborigines especially will have problems in complying. Whether that was the intention or not, that is the result. This Bill seeks to exempt Aborigines from complying with these restrictive procedures. It will require the State electoral registrar in Western Australia to enrol all Aborigines who are on the Commonwealth roll.

The chain of events leading to this Bill 's introduction starts from the Western Australia State Election in February 1977. Polling day in the electoral division of Kimberley was turbulent. I will not detail those events, but ultimately an appeal was lodged with a Court of Disputed Returns by the Australian Labor Party candidate, Ernie Bridge, who had been defeated by 93 votes. After prolonged hearings, judgment was given in favour of Bridge with costs against the defendant, Liberal candidate Alan Ridge, then and now a Minister in the Court Government. Justice Smith ordered a new election. When the appeal was first lodged the Court Government was asked to cover legal costs. It refused. Shortly before the judgment was given it magnanimously offered to pay the costs of both parties. Whether its change of policy was due to change of heart, or change of mind after the evidence was given leaving little doubt in anyone's mind about who would win, remains a matter of conjecture.

Justice Smith found that 96 people had been improperly deprived of their right to vote for Ernie Bridge and for that reason declared the election void- the winning margin having been only 93 votes. The Premier, when confronted with the judgment, dismissed it as 'one man's opinion'. The improprieties found by Justice Smith were those of a group of Perth lawyers who were briefed by the Liberal Party in obstructive scrutineering tactics to be used in polling booths. The objective was to prevent Aborigines from recording votes, or if that failed, from recording valid votes. In one instance, the Liberal scrutineer told the presiding officer that he had telephoned the returning officer, who had told him that 'how to vote' cards were not to be accepted as evidence of voting intentions. The court found that the alleged conversation did not occur.

Numerous allegations were made by Western Australian Government members that Aborigines had been manipulated by Ernie Bridge or his supporters. One of those allegations, in the form of a letter by John Tozer, MLC, to the West Australian was the subject of a libel action by Bridge against Tozer and the newspaper. Judgment ultimately was given in favour of Bridge and $20,000 damages were awarded. The Smith judgment explicitly noted that no evidence of manipulation or malpractice, other than on polling day, had been presented to the court. Notwithstanding that fact, the State Government proceeded with a program based on the assertion that Aborigines were being manipulated and that irregularities were rife in postal voting.

Amendments to the Electoral Act were brought into the Western Australian Parliament's 1977 spring session. So discriminatory against Aborigines were these amendments that they were opposed in the Legislative Assembly not only by the Labor Opposition, but by half the Country Party, and a Liberal backbencher, and were defeated by the casting vote of the Liberal Speaker. The Government's next move was to establish an electoral inquiry under Magistrate Ray. Again the rationale was the elusive alleged manipulation and malpractice. Kay recommended changes to the Electoral Act aimed at eliminating or at least minimising malpractice pertaining to illiterate voters. Some might think this curious in view of the fact that yet again no evidence of malpractice was presented. More importantly, in the context of this Bill, the potential for malpractice which Kay identified, and to which Senator Chaney drew attention on 6 June, related to voting procedures, not enrolment.

The Western Australian Government, however, introduced another Bill this year which adopted most- not all- of the Kay recommendations. It was passed by the Parliament early in October. The major amendment to the State Electoral Act, the amendment which is the target of this Bill- Clause 8 in the Western Australian amendment- is that which requires applications for enrolment to be witnessed by either a justice of the peace, a police officer, a clerk of courts or an electoral officer. Previously applications could be witnessed by any elector, the same as the Commonwealth Act. That amendment, for which we and evidently every other Government in Australia can see no need, is obviously irksome to anyone wanting to enrol or change enrolment. To people with language or other communications problems it is a difficulty. For Aborigines, especially those living in remote areas like the Kimberleys, it is a major deterrent. Except for electoral officers, all the people permitted to witness applications represent authority in Aboriginal eyes. The probability is high that an Aborigine's only previous contact with justices of the peace, policemen or clerks of court, would have been as a victim of the punitive or disciplinary arm of the law. It is no overstatement to say the Aborigines are apprehensive about approaching people in these positions. It may not even be an overstatement to say they are frightened of them. I concede there are Aboriginal justices of the peace at some settlements, but that is far from ubiquitous.

The Western Australian Government's motives for taking that extraordinary action are, some would say, a matter of conjecture. I suggest, however, that it is not unrelated to the sentiments expressed by Alan Ridge in a letter to one of his supporters, John Fletcher, after the 1977 State elections. Ridge wrote:

Mr Ridgedid not expect that letter to become a public document. It did so only because the court ordered it. Whether Mr Ridge's hope provided the motive for the Western Australian Government decision to impose more stringent enrolment procedures which would apply with special force to Aborigines, clause 8 of the Government Electoral Amendment Bill will have that effect.

The intention of my Bill is to remove that deterrent or impediment to Aboriginal enrolment for Western Australian elections. It effectively ensures that all Aborigines who have complied with Commonwealth Electoral Act procedures will be included in the State roll for the appropriate district and province. The first two clauses are formal only, and clauses 3 to 8 provide:

Clause 3, 'Aboriginal ' defined as in Aboriginal and Torres Strait Islanders (Queensland Discriminatory Laws) Act 1975,

Other definitions taken from Western Australian Electoral Act.

Clause 4, Act binds Western Australia and Commonwealth.

Clause 5, States that an Aboriginal who is enrolled to vote in Commonwealth elections shall be entitled to enrol as an elector for Western Australian elections.

Clause 6. Supplements clause 5 by stating that a Western Australian Registrar shall not refuse to enrol an Aborigninal for a Western Australian election if that Aboriginal is enrolled as a Commonwealth elector.

Clause 7. Is a machinery clause that provides that where an Aboriginal is enrolled at a particular address for Commonwealth elections then he shall be enrolled for State elections for a division and province appropriate to that address.

Clause 8. Supplements the general purpose of the Act by stating that conditions or restrictions other than those set out in the Commonwealth Electoral Act shall apply to an Aboriginal enrolling for elections in Western Australia and in particular states that no requirement as to witnessing shall be placed on an Aboriginal seeking to enrol in Western Australian elections unless the Aboriginal chooses to comply with any general provisions that may exist.

In summary, therefore, the Bill does no more than guarantee that Aboriginals in Western Australia when enrolling for State elections will receive the same treatment under State electoral law as under Commonwealth law. It allows the State to continue to have its own electoral rolls and does not seek to interfere in the manner the State organises its own elections other than to the extent noted above. On Friday, 9 November Senator Walsh rang the office of the Minister, and spoke to his private secretary, whom he asked to tell Senator Chaney that if he or his Department believed the Bill had technical defects or was impractical, he and others who had helped prepare it would like to discuss the matter and that we would be willing to make changes.

Since we have not been approached, I assume that if Government members do oppose the Bill it will not be for technical reasons. I do not know what the view of Government members is, but for a variety of reasons I am hopeful they will support it. If a free vote were allowed, I am certain that many would. On 6 June 1979 the following urgency motion was moved in the Senate:

It received the support of the Government and was carried without dissent. In the debate Senator Chaney said:

The qualifications were of three kinds. Firstly, Senator Chaney said he separated what he called the 'general abuse' from the substance of the motion. The Government, he said, supported the latter but not the former. That qualification should not preclude Government members from supporting this motion. Secondly, he drew attention to a number of practical problems associated with voting and in particular the potential for malpractice associated with illiterate voters. All these qualifications, however, applied to voting practices. The Bill deals only with enrolment. Thirdly, Senator Chaney expressed a somewhat equivocal attitude to a question of Commonwealth power to control State electoral procedures. He said 'I do not argue that the power does not exist'. I say that it is a matter which will almost certainly lead to legal disputation and about which I think one could mount arguments either way.

If the Commonwealth eschewed all legislation which could conceivably be successfully challenged in the High Court, given that court's notorious record of both political and capricious judgments, the Commonwealth would scarcely legislate at all. None of the qualifications added by Senator Chaney on 6 June provide adequate grounds for opposing the Bill. Indeed, apart from the general support he expressed on behalf of the Government, he pointed out that all disadvantaged people- and most Aborigines are disadvantaged- being without other power, have a special interest in the political power conferred by the franchise. He said:

In addition to the support given on behalf of the Government by Senator Chaney, the strong stand abroad of the Prime Minister (Mr Malcolm Fraser) against actions which disadvantage other races must surely lead him towards supporting this Bill. I cannot visualise Mr Fraser exposing himself to a charge in international forums of failing to take action which was within his constitutional power to overrule a State government's attempt to prevent Aboriginals from voting. I sincerely trust I will receive Government support and commend the Bill to the Senate.

Debate (on motion by Senator Peter Baume) adjourned.

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