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Thursday, 3 March 2011
Page: 2211


Mrs MIRABELLA (10:28 AM) —The Electoral and Referendum Amendment (Enrolment and Prisoner Voting) Bill 2010 contains two minor, non-controversial amendments which deal, firstly, with a prisoner being able to remain on the electoral roll even if they are prevented from voting and, secondly, an insertion in the interpretive provision to ensure that references in the Electoral Act to an ‘election for a division’ or similar expressions can operate in the event of a half Senate election held independently of an election for the House of Representatives. The coalition has no issue with these two non-controversial amendments but, as you have heard, it certainly does have concerns with the two issues dealing with prisoner voting and the closure of the rolls.

At the outset, I want to say that it is right and fitting that any government remains vigilant and makes changes that are necessary to improve the integrity of our voting and enrolment system. But, as we know, often much does not change with government legislation and often such change is not for the better but makes schemes worse, and when you are dealing with the very foundations of our parliamentary democracy that can be a very dangerous thing.

The Howard government was very vigilant about trying to improve our electoral system and a number of bills were passed to strengthen and protect it. At the core of our electoral system is the joint Commonwealth-state electoral roll, which of course is used for the conduct of all elections at the local, state and federal levels. For as long as there have been political systems there have been jokes and stories, and indeed legends, about the rorting of the electoral roll—about dead people voting, about cats voting and other dodgy practices. Until very recently the integrity of the roll has been based largely on trust, and still is to a certain degree. It is much easier to present yourself on election day to vote than it is to join up at your local video store, and some people find that a rather peculiar situation.

It was only under the Howard government in 1997 that the AEC commenced a process of continuous roll updates, which of course include mailing and doorknocking campaigns to help ensure that the roll is as accurate as possible. In 2006 the coalition introduced legislation saying that the rolls would close for new enrolments at 8 pm on the day that the writs were issued, and for changes to existing enrolments they would close three days after the issue of the writs, and it did so notwithstanding the concerns regarding potential disenfranchisement with an early closing of the rolls. The government was concerned, and quite rightly so, about the potential for electoral fraud associated with high levels of enrolment activity during the existing seven-day period.

Putting aside the hysteria and the extraordinary claims, let us just have a look at the facts for a moment. In 2004 the number of transactions that the AEC had to process concerning enrolments and changing of addresses was 520,000. In 2007, after the change to the close of the electoral roll to an earlier time, that number dropped to 263,000. This enabled the AEC to deal with those fewer changes in a more efficient and, very importantly, a more accurate manner. It is critical to note that together with the change in the legislation the government did make more money available to the AEC so that they could conduct more aggressive campaigns to get people enrolled in a timely manner. Those of us who were mindful to these matters will recall very extensive television and print media campaigns to get people to change their enrolment details or to enrol, and that started some months before the election.

Under the existing legislation, it is the obligation of an individual to enrol once they attain the age of 18 or become a citizen. It is an imperative and thought to be a sufficiently serious responsibility that it is a criminal offence not to do so. So it is important to realise that it is not just about the rush to try to get people on the roll at the last minute. Where you can have integrity issues and where you can have stacking and fraud, particularly in marginal seats with people putting themselves on the roll at the last minute, having a prolonged campaign to get people on the roll is the proper way to appease those concerns about people being disenfranchised. It is a balancing act, and a sophisticated democracy like Australia can surely be organised enough in the administration of its laws, including its electoral laws, to do what it can in between elections to ensure that electoral rolls are as accurate as possible and people are encouraged to change their details when it is appropriate.

In 2004 when there were an extra seven days for enrolling as a new voter and an additional three days to get your address transferred, fewer than 168,400 missed the deadline with that longer period. But with the shorter deadline—that is, when you had to be on by 8 pm on the day the writs were issued, if you were a new enrolee, or you had three days to change your address—we only had 100,370 people who missed the deadline. Not only did we see fewer transactions, we actually saw a drop in the numbers of people who tried to enrol and were unsuccessful because they had missed the deadline. This proved the strength of a strong and concerted campaign to get people on the roll or to amend their details.

Those of us who have been involved in public debate and in politics for some time can point to a number of examples where individual seats, or in fact governments, can be decided by the narrowest of margins—or in some cases not even decided, as is the current situation in the federal parliament. Let us just have a look at one of these examples. The 1996 Mundingburra by-election in the state of Queensland is a classic case in point. The state election of 1995 saw the Goss government returned with a majority of one seat. The result of that election hung on this seat. The Mundingburra electorate, where the incumbent Labor candidate had been declared successful, had a margin of just 16 votes. Of course, as is normally the case with such narrow margins, this was disputed by the Liberal Party.

When the Court of Disputed Returns declared the result in this electorate void and ordered a by-election, it obviously showed us yet again how critical it is to get the integrity of the rolls and the voting system right. Ultimately the seat was won by the Liberal candidate. As we know, as a consequence the state Labor government lost and the coalition became the new government for Queensland. So let’s not get hysterical and be dismissive or glib about the absolute importance of getting the integrity of the electoral rolls right. A handful of votes can and do matter. They have mattered in the past, they matter now and they will matter in the future.

The fact is that there have been documented incidents of electoral fraud in the past, and for those who say we have the best system in the world and there have not been significant cases of electoral fraud, we are not perfect. Of course we do not have a dodgy system akin to some non-democratic—I am trying to be politically correct here because I do not want to cause a diplomatic incident. But we are not some tin-pot nation that gives lip service to democracy. That does not mean we are perfect and that does not mean that there is not fraud. There is. In fact, we have had documented evidence in the past and all we need to do is go through the history books and have a look at our political history to see some of these examples.

I do not know why Queensland throws up such interesting political examples, but it does. If we go back to Queensland and we fast forward five years to the year 2000 in North Queensland, we see the state Labor candidate in Thuringowa, a former Townsville city councillor, plead guilty to 24 counts of forging Commonwealth electoral forms. She was sentenced to three years imprisonment. So, yes, of course we are not as bad as some of the worst countries on earth, and of course our electoral system is something that many would consider enviable, but that does not mean we cannot improve it and it does not mean that there is not fraud.

We all remember when political parties change and alter voting systems to favour themselves. We all remember when Neville Wran changed to optional preferential voting in New South Wales, because he saw that by conducting three-cornered contests with compulsory preferences the Liberal and National parties were able to maximise their amalgamated support and were able to defeat Labor candidates more easily. Introducing optional preferential voting, effectively minimising the impact of the amalgamated so-called ‘conservative vote’, proved very successful—so much so for the Labor Party that Queensland followed that model. But now that we see a different situation in Queensland, where there is one major non-Labor party, the Premier, who finds that the Greens preferences are now working against her, is looking to change the legislation to go back to a compulsory preferential system because that will assist the Labor Party with Greens preferences. The Labor Party, being the larger party, would of course benefit from that. So we do have a history where political parties do change—some would say manipulate—voting methods to suit their own political purposes.

To return to the bill, if we look at the High Court decisions that relate to the questions of the difference in the time made available, in the case of Rowe and the Commonwealth we see that there are some very strong judgments given by dissenting judges. Three of Their Honours supported the plaintiff and the 2006 provisions were struck down, and three of Their Honours, with separate judgments, supported the argument that the enactments were valid and that they should stand. Justice Heydon made some very important points when he noted:

The legislation placed no “burden”, and no “disproportionate” burden. If there were any burden on anyone, it was a burden which those who bore it placed on their own shoulders.

…            …            …

There is a statutory command to claim or transfer enrolment. That command is backed by a criminal sanction. The plaintiffs did not dispute the constitutional validity of either the command or the sanction. What they demand is an entitlement to continue disobeying the command and ignoring the sanction for longer periods than the impugned provisions allow.

There is much more to this debate that will follow. These are important issues that do concern people out there in the community, and I am sure that we have not seen the last of judicial consideration of these particular matters, so let’s not be under the illusion that these legal issues are settled once and for all.

If we turn to the issue of prisoner voting, I think the member for Mackellar made some very important points. The Howard government took the view that a person who was serving a custodial sentence should be denied that franchise because they had volunteered up the right through the actions that resulted in their custodial sentence in the first place. If you commit offences against society sufficient to warrant a prison term then you should not be entitled to vote and elect the members of the society whose laws you have disregarded. It is as simple as that and a very decent principle by which we stand—as do most Australians. (Time expired)