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Wednesday, 16 March 2016
Page: 2072


Senator GALLAGHER (Australian Capital Territory) (11:43): I rise to make a contribution on the debate on the Commonwealth Electoral Amendment Bill 2016. In doing so, I will record my opposition to the contents of the bill, to the intent of the legislation and to the manner in which the parliamentary processes have been intentionally curtailed to allow it to be rushed through the parliament. I know that my Labor colleagues and I would welcome the opportunity for this parliament and for the broader Australian community to engage in a sincere debate about how we might work together to improve our democracy. It is regrettable that the cause of genuine electoral reform will be tarnished by this bill, which is the unfortunate and inevitable outcome of this government's desire to pursue this course of action, motivated as it is by naked political self-interest.

I believe we ought to be having a debate in this parliament about how we can invigorate our democracy in the 21st century and how we might modernise our democratic processes to better reflect and address the concerns of ordinary Australians. What new technologies are available to us and what opportunities do they offer to improve transparency and promote the integrity of our political institutions? What lessons can be learned from successes and failures in comparable democracies? What can be done to address the known issues of political disenfranchisement in Australia, such as the fact that hundreds of thousands of young people remain off the electoral roll? How might we consider these challenges and opportunities in totality and find ways to address them?

I do not set these challenges before the Senate from a position of misguided idealism. I do so because Australia, and indeed this federal parliament, has a long and proud history of acting as an incubator for genuinely innovative and democratic electoral reforms that have then be taken up by the rest of the world. It was the Australian colonies in the period before Federation that led the world in abandoning restrictive electoral franchises based on property ownership, and in doing so extended the right to vote to all adult males. We were at the leading edge of jurisdictions around the world in extending the vote to women, and in doing so we changed the very nature of what was understood by democratic participation. The secret ballot, a near universal feature in modern democracies, was so entrenched in Australia by the time of Federation that it was in operation for the election of our first federal parliament in 1901. Its merits were so self-evident it was gradually adopted throughout the world, where it was known as the 'Australian ballot'.

And Labor has a long history of supporting and working cooperatively to maximise the franchise while maintaining the integrity of the system. This includes the longstanding reform proposals we have pursued in this and earlier parliaments to build on these achievements and to enhance the transparency and accountability of our political parties and institutions. We are offering them as amendments to this bill and they include: reducing the donations disclosure threshold from $13,000 to $1,000 and removing CPI indexation; banning foreign political donations; banning anonymous donations above $50 to registered political parties; linking public funding to legitimate political expenditure to discourage candidates running to profit from public coffers; and limiting 'donation splitting' that evades disclosure requirements.

The desire to see these proposals enacted is shared by many senators in this place, including some of those across the aisle—and rightfully so; they are genuine reforms. The reason I make note of these proposals, however, is to highlight their conspicuous absence in the Commonwealth Electoral Amendment Bill 2016, and that of any other attempt at substantive reform.

The bill currently being debated in this chamber does not represent mature and thoughtful electoral reform in the vein of our earlier democratic traditions. It has been hurriedly drafted and now will be hurriedly amended. It is exceedingly narrow in its scope. Despite containing the most far-reaching and consequential changes to our voting system in thirty years, it is being rammed through this parliament without due scrutiny. It does not attempt to view our democracy in a holistic fashion or to improve it guided by democratic ideals. Instead, it is by design intended to provide a crude political advantage for its proponents.

The calculated intent of the government and its allies of convenience in presenting this bill at this time and in this manner is to neuter the parliament's ability to scrutinise; the intent is to restrict the debate to the absolute minimum of what is procedurally required and to cynically use this legislation to clear the decks of dissent in this place at their earliest possible convenience. And I fear 'debate' may well be too generous a term to use, because in reality this chamber is merely being afforded the courtesy of several hours to note this bill's passage.

The backroom deal between the government and the Greens has already been done for reasons of self-interested political advantage and expediency, and it is being executed with a total disregard for good law-making and respect for parliamentary process. In 1996 Paul Keating said, 'When you change the government, you change the country.' With apologies to former Prime Minister Keating, the applicable dictum in this instance may well be, 'When you change the voting system, you change the country.' Any reforms of the magnitude being proposed within this bill should receive the most exhaustive consideration by the parliament and our broader civil society.

And, with that in mind, it is worth turning to the conduct of the government and the manner in which it has attempted to expedite this bill's passage through the parliament. It deserves to be exposed for what it is; an abuse of process with the deliberate intent to deny proper scrutiny.

This bill was introduced in the House of Representatives on Monday, the 22nd of February, with a suspension of standing orders invoked almost immediately, to facilitate its unrestrained passage through that chamber. Just two days later, on Wednesday, the 24th of February, the government was forced to put forward six amendments to its own legislation. Why? Because the ABC's Antony Green and other bloggers had exposed critical flaws in the bill. This includes, as my colleague Anthony Albanese from the other place has pointed out, an embarrassing failure to include a provision allowing assistant returning officers to count Senate first preferences on election night.

I am forced to wonder whether relying on 'accountability by blogger' is a prescient insight into our future with a neutered and compliant Senate. Perhaps we should feel fortunate that the legislation was referred to the Joint Standing Committee on Electoral Matters for examination at all? And let's be clear: despite the frequent references by proponents of this legislation to the earlier JSCEM inquiry, this bill proposed by the government with its specific legislative instruments had never, ever been considered by that committee. Ultimately, the sum total of that committee's consideration was restricted to a single public hearing, and it was permitted to take evidence for a mere 4½ hours. This patently inadequate process meant the committee had a single evening to consider the evidence presented in that hearing and to synthesis the submissions received before being required to report to the parliament the following day.

Minor parties and Independents with parliamentary representation were allocated a paltry 50 minutes to present evidence at the hearing. Registered political parties that are not currently represented in the parliament—but are legally constituted and in compliance with the requirements of the Australian Electoral Commission—received no time at all to state their case on changes to laws that by all accounts will eliminate their electoral prospects. I think it is fair to say that few very senators would have had adequate time to read and digest even a small number of the 100-plus submissions received by the committee in tandem with its report before being required to deliberate on the legislation and its attendant amendments on the very same day of the report's release.

Of course, for members of the House of Representatives the outcome of JSCEM's cursory inquiry was to be entirely academic. Had the bill been hammered through the Senate as originally planned, they would not have had the opportunity to consider its findings in their deliberations at all. That has now changed, but only because the government has been forced to amend its legislation on the hop after the committee's 4½-hour inquiry exposed elementary flaws in its approach to below-the-line voting, and the bill will now be required to return to the House. It is worth noting that amendments that rework the below-the-line voting system will now pass with the support of the Greens and yet will not be scrutinised at all by the JSCEM prior to their implementation. Fundamental changes to our electoral system deserve to be subject to a proper committee inquiry, not a week-long submissions window followed by a half-day farce.

The legislation's shortcomings exposed through this process, even in the limited time frame allowed by the government, were by no means insubstantial. Respected political scientists and academics, in their submissions to the committee and through media commentary, warned that the legislation as it was drafted would have significant negative consequences. We were advised by these experts that the changes proposed would lead to a significant rise in informal voting, would lead to a large number of exhausted votes for the first time, were logically inconsistent in their approach to above-the-line and below-the-line voting, would only provide the Australian Electoral Commission with the absolute bare minimum time required to educate the public and reform its internal processes in time to conduct the next election, and would have broader unintended political consequences that have not been adequately canvassed.

Having examined the bill, Dr Nick Economou, from the School of Political and Social Inquiry at Monash University, wrote:

If the government's changes are passed, a leap in the informal voting rate will occur. Research into informal voting by the Australian Electoral Commission notes the relationship between rising rates of informal voting and complexities in a voting system. The system will thus go back to disenfranchising voters (most likely from lower socioeconomic backgrounds) in ways that it did prior to the Hawke government's 1983 reforms.

Mr Michael Maley, a former senior official at the Australian Electoral Commission, with 30 years of experience, also raised concerns about the nature of the proposed voting changes. Mr Maley was involved in drafting the current provisions governing Senate elections in 1983, as well as being recognised as the in-house expert on the Senate electoral system. He described the voting system in the bill as 'inconsistent and incoherent' on ABC Radio. Mr Maley noted that the bill diverged significantly from the post-2013-election JSCEM inquiry's recommendations, and he stated:

The Bill's proposal, for optional preferential voting above the line but full preferential voting below the line makes no sense, and has not been supported by any stated justification.

He noted the government's approach would see:

identical preferences for candidates may produce a formal vote if expressed … above the line … but an informal vote if expressed … below the line …

Distinguished Professor of Constitutional Law George Williams AO similarly identified the bill's confused treatment of above- and below-the-line voting. He says:

… introducing optional preferential above the line voting, while retaining full preferential voting for below the line, creates an obvious and unfortunate disparity.

Dr Lee Naish, from the University of Melbourne, in his submission exposed further inadequacies. He expressed his concern that the vote counting methodology contained within the bill had:

a particularly naive way of calculating transfer values, ignoring exhausted votes and ignoring the value of votes before the transfer … Under the new Senate voting rules there will be, for the first time, a substantial number of exhausted votes.

The evidence from the AEC is also critical to note. Officials from the AEC in both their written and their oral evidence to the committee were at pains to stress that an election in late June or early July would provide the commission with only the absolute bare minimum of time it would require to both attempt to educate voters in regard to the changes to voting and reform its internal processes in order to be able to conduct the election. Given the deeply consequential nature of the issues rushed through by such a short period of parliamentary examination, it is clear that this bill requires a further extended period of consultation, scrutiny and debate. It should also be a first principle for us that under no circumstances should we ever proceed with such haste that changes might jeopardise the ability of our internationally lauded Electoral Commission to conduct elections that are beyond reproach.

Moving on from the technical deficiencies exposed in the bill, it is important to canvass its broader political intent and likely outcomes. The intent of this bill, as noted by Emeritus Professor Ross Fitzgerald and others, is to get rid of the dissenting voices in this place at the next election. The outcome is just as easily discerned. The coalition, the Greens and, yes, the Labor Party will benefit. Close to the entire crossbench can expect to be eliminated, with the consequence that the Australian political landscape will be reshaped for decades to come.

In my first speech to this chamber, 11 months ago, I praised the Senate's record in the face of overreach by the then Abbott government. Observing it as an outsider, I was heartened by the way it had stepped up to perform its constitutional role, pushing back against the regressive and unfair agenda it was confronted with and amending and rejecting legislation that was not in the national interest. I defended the Senate against accusations of being feral and chose to characterise it as fearless and fair, as a Senate that had listened to the Australian people when the government had not. My experience in this place over the past 11 months has not changed my view. The contributions of all senators in this place, in my experience, have been overwhelmingly earnest, thoughtful and constructive.

Whatever your political inclination is, there is no denying that at the last election over 3.3 million Australians, one in four voters, chose not to vote for either the coalition, Labor or the Greens in the Senate, nor can we deny this is a new phenomenon. The increasing share of the vote for non-major parties and for parties without representation in the parliament has been trending upwards for decades. Our collective failure, as established parties, to win their favour is just that.

When the parliament ultimately proceeds in relation to electoral reform we must ensure that the voices of these Australians are meaningfully registered at the ballot box. I am opposed to the gaming of Senate preferences by so-called preference whisperers. However, it is not democratic or fair to simply do a deal behind closed doors that corrals their votes to an established party or uses opaque counting procedures to exhaust them. But this is precisely what the deal between the government and the Greens will do. It will expunge the diversity from this chamber, making it easier in the future for the coalition to achieve a Senate majority. And, casting backwards, it does not require a particularly long political memory to recall what happened the last time both chambers of this parliament were controlled by one side. There was Work Choices, there was the disenfranchisement of over 100,000 people from the electoral roll, and there were guillotined debates, shortened estimates sessions and a one-day inquiry into anti-terror legislation.

Projecting forward, it is abundantly clear what this government would do with a more compliant Senate: $100,000 university degrees, cuts to Medicare, cuts to schools and hospitals, cuts to welfare; punitive measures against the young unemployed; changes to the industrial relations system—all issues that have been blocked by the current Senate and by all available polling, totally reflective of the popular will of the Australian people. Yet the Greens have seemingly resolved that it is worth the risk to pass this legislation and offer a potential rubber stamp to the coalition in order to lock out smaller parties and Independents.

I know a few things about the Greens political party. I have worked with the Greens political party for more than a decade. But yesterday in this place I learnt a whole lot more about what the federal Greens are all about and the extent that they will go to to deliver the agenda that they have set for themselves. I have never in my time of working with the Greens ever seen Greens at the beginning of a day support a gag motion and deny other members in an elected parliament the right to speak. I have never, ever seen that. In fact, I would go further to say that it actually flies in the face of the so-called principles that the Greens political party often lecture other parties about in this place—about the ability to hear different voices and to allow debates to occur.

Yesterday we saw the Greens not once, not twice, not three times, but seven times, in sticking to the deal they have done with the government, vote to enforce the gag on other members in this place. I saw the Greens leader shut down and not allow the Leader of the Opposition in the Senate speak on marriage equality, after generously being allowed five minutes himself to speak. I saw Independent senators, Senator Muir, Senator Leyonhjelm and Senator Lazarus, be given one minute to make their case and then be gagged and told to sit. It was an extraordinary day yesterday. Perhaps it was less extraordinary from the point of the government. Perhaps those tactics are better understood coming from the government. It was extraordinary to actually see the Greens hold hands with the government and move to that side and vote for the gag, as I said, seven times at the beginning of the day—not even after the debate or during the debate but before any debate was allowed.

Yesterday I think we got a real taste of what a future Senate might be like; a future Senate where agreements are reached not on the floor of this chamber but in a backroom somewhere without proper scrutiny. We will all live with the repercussions of that. It will be a Senate where, if there is agreement reached, individual senators will able to dictate who can speak, how long they speak for and what they can speak on. That is what happened yesterday. Yesterday there was a decision taken by the Greens and the government that they did not want to hear from anybody else. They did not want to hear contrary views. They did not want anything to interrupt the speedy passage of this legislation to entrench themselves in a position of comfort at the expense of others. That is what happened yesterday, and that is why this bill should not be supported.