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Wednesday, 23 March 2011
Page: 2886


Mr MELHAM (10:55 AM) —I rise to support the Electoral and Referendum Amendment (Provisional Voting) Bill 2011 and I do so in the knowledge that this bill is consistent with a principle under which this parliament should be operating when it comes to elections, and that is the principle of enfranchisement, not disenfranchisement. We have had two High Court decisions in recent times that have struck down legislation of the Howard government that went to the very heart of disenfranchising voters.

The first decision was in the Roach case to do with prisoner voting. It was a 4-2 decision of the High Court reinstating the principles as they were before the former government had legislated and in effect disqualified a class of prisoners from the vote. The second decision, and the most recent one to do with this election, was the 4-3 decision of the High Court in the case of Rowe, which was about the seven-day enrolment procedure. Talking about ideology, some of these people were appointed to the High Court by the former government. Justice Crennan could hardly be said to be a radical and she was in the majority of four. The joint judgment in that case of Justices Gummow and Bell went to the seven-day rule, which I think is a principle that we need to listen to. In paragraphs 166 to 167 they said:

In particular, the requirement in Roach that any disqualification be for a substantial reason cannot be answered simply by what may appear to have been legislative purpose. A legislative purpose of preventing such fraud before it is able to occur, where there has not been previous systemic fraud associated with the operation of the seven-day period before the changes made by the 2006 act, does not supply a substantial reason for the practical operation of the 2006 act in disqualifying large numbers of electors. That practical operation goes beyond any advantage in preserving the integrity of the electoral process from a hazard which so far has not materialised to any significant degree.

So what they then did was reinstate the seven-day provisions. In relation to provisional voting the same is true. The paranoia of those opposite who say, ‘We require proof of identity, we require a drivers licence before we’re going to let you have a vote or we’ll give you seven days to bring it back,’ has disqualified thousands of voters.

What did the Electoral Commission do in their submission to my parliamentary committee, the Joint Parliamentary Standing Committee on Electoral Matters? They nailed it. In paragraph 5.5.6 they said:

Of the 28 065 provisional votes rejected on the basis that the elector did not provide EOI, 12 227 of these were cast by electors who were actually enrolled.

Those voters took a provisional vote because their name could not be found on the day and that is the provision they were bound under. They were subsequently found to be on the rolls. But because the clerk did not pick that up on the day, maybe because of a misspelling or a wrong pronunciation—because a lot of this is non-English-speaking background—they were all knocked off the roll. What was the criterion before, which we are reinstating? We are reinstating the old provision that says that you sign when you get a provisional vote, it gets scrutinised, and there are scrutineers present, and if there is doubt as to the signature you get knocked out. Your signature becomes the proof of identity.

Today we heard from the National Party; they made a submission before our committee. Now, the signature provision still applies to declaration votes other than provisional votes; that is the nonsense here. And cop this, Mr Deputy Speaker: this is what they said, on page 5 of their submission, in relation to the signature provision:

The AEC has subsequently advised The Nationals that there were 5,549 PVCs rejected nationally due to signature mismatch.

What I say to you, Mr Deputy Speaker, and to the member opposite is that there is a proof of identity provision that has always been there. It is the signature. These votes do not go into the ballot box on their own. They go into a packet, which is signed and lodged, and the details are checked. That is all that is required. What we have now is evidence before our committee from the independent Australian Electoral Commission, who, I might add, support what the government is doing on this provision. The party opposite that proclaims it hates red tape is using red tape to knock out legitimate voters. These are not people who do not want to vote; these are people who are showing up and want their vote to count. And in 12,000 cases they were actually on the roll and their votes did not count because of this provision, which really was a knockout provision put in for political purposes because provisional votes supposedly traditionally favour the Labor Party. That is not the way you operate the electoral system. I have always believed in enfranchising.

I am not saying, and the government is not saying, that these votes should go in as a normal, ordinary vote on the day of the election. What happens is that if your name is not on the roll or if there is a misspelling you have a provisional vote and there are certain provisions. Under the old act, which I have with me, section 336 required the elector to sign a paper with his own signature so there could be a signature check where doubts existed. I have scrutineered in more than one election in other divisions along these lines, whereas many opposite and even many on my side have not done it; they have not had that experience. That is why I say that this argument some people are making, that you need a drivers licence to get a video card or other things and so the same should apply to the Electoral Act on election day, is nonsense. We have had a High Court case in relation to the seven days that basically says that if you want to knock out legitimate voters, if you want to assert electoral fraud and if you want to say there is a problem with the system, produce evidence. That is why the High Court reinstated the seven-day rule in terms of the opportunity to enrol or change enrolment from when an election is called.

Of course, the conservatives argue that the seven-day period allowed a massive opportunity for fraud to occur. Another letter that the Electoral Commission sent to us said that they did a survey of eight or nine electorates. We will have it tabled publicly; I am entitled to talk about it in general terms. What it showed was that there were about 33 people surveyed who changed addresses back to their old address within a short period of time after the election. It does happen, but it is not fraud that is occurring. What they discovered was the overwhelming number of the 33 were young people, and they were going to make some further inquiries. We have got a good system. If there is electoral fraud, if those opposite say a particular division has miscarried because there has been a stack on the roll and that was a fraud, then they can challenge that election in the Court of Disputed Returns. But what I find offensive is that the party that says it does not believe in red tape continually puts blockers in to knock out tens of thousands of voters from having their vote counted.

We all condemned the first Bush election and the Florida hanging chad. This is Australia’s hanging chad. It was put in by the Howard government for a particular purpose, and, if anything, the fraud that was being perpetrated on the electorate was the basis upon which that provision was changed by the former government. It has been exposed for what it is—lacking in substance. And safeguards are there so that those provisional votes are properly checked and scrutineers from any particular party can question the identity of the person. It only goes back to whether they were inadvertently taken off the roll, and there are other things that are occurring in that regard. A whole lot of people who get a letter from the Electoral Commission and do not reply or whatever are being taken off the roll. In the old days they were reinstated, but under the former government this notion that you bear the responsibility, you bear the onus, has led to another 90,000 people not getting back on the roll and not getting their vote.

We support an incursion on the no-fly zone in Libya, we support what is happening in Afghanistan, to give people the right to elect their governments, the right to participate. What we have here is provision after provision put in by ideologues who in effect say that there is a presumption of guilt upon you before your vote will count. It is designed to attack the less advantaged in our community: Indigenous people; people who are not literate; the people of non-English-speaking backgrounds in south-west Sydney, where the top 12 electorates of informal votes are—and we will be looking at addressing that in our report. I cannot understand how those opposite can get up here with a straight face and say they want to maintain a provision when there is a submission before the electoral committee that says that this pernicious section resulted in 12,000 people at the last election who were legitimately on the roll not being able to have their vote exercised. That was as a result of polling-official error—not as a result of fraud—and the commission, to their credit, have admitted that and said that that is what this provision does. The commission have consistently said that this provision should not be there.

The next argument will probably be that the AEC are under the control of the government and the Labor Party and they are our mouthpiece. They are not. During the 21 years I have been in this place I have had nothing but the highest regard for the Electoral Commission and their officials. Occasionally they make mistakes.


Mr Husic —Who doesn’t?


Mr MELHAM —But, as my colleague says, who doesn’t? In this instance they gave evidence before the committee. It was not the first time; they did it before the last election, but the nature of the Senate was such that this would not get through.

It is about time that members of this House started to argue for enfranchising people, not disenfranchising them. At the federal level the Liberal-National parties have not done too badly out of compulsory voting and the provisions of the Electoral Act, because they have been in government for more than two-thirds of the time. This is not a situation where they could have argued, as they did in 2006, that it stopped them from getting elected in 1996, 1998, 2001 and 2004. No, they were spurious arguments and we now know, as a result of proper investigation, what those amendments mean.

That was why I was surprised by the High Court decisions in Roach and Rowe. The High Court basically put a limit on the parliament’s power to legislate because of the precious nature of the right to vote. The right to limit prisoners and the right to limit people getting on the roll in the seven-day period after an election was called were quite historic decisions by the High Court, but they were right. They were underpinned by enfranchisement, not disenfranchisement, which is what this current provision on provisional voting does.

It is separate to what happens with postal votes and other declaration votes. The signature is used to verify postal votes. As the National Party point out in their submission, for over 5,000 people there was a question over their signature. Signatures are used in the postal vote provision to determine identity. It might be a relative or someone else who has signed but, if there is a doubt, it is out. We do not have to listen to the garbage from the other side that this is going to be doom and gloom for our electoral system. They say there is going to be doom and gloom because they think there is a disadvantage to them because this class of people are not necessarily their supporters.

As I said, my principle has always been—and it has been on the record for 21 years; and I have been on the electoral committee for about 12 or 13 years—for enfranchising. Yes, we have to have safety nets. I support the reinstatement of the signature as the basis for provisional votes. If someone is not on the roll for two elections before the election they wish to vote in, they do not get a vote, so not every one of these votes gets put back into the count—don’t believe that either. Many get excluded for good reasons. I commend the legislation to the House.