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Tuesday, 12 March 2013
Page: 1656


Mrs BRONWYN BISHOP (Mackellar) (17:07): In speaking to the Electoral and Referendum Amendment (Improving Electoral Administration) Bill 2012 I will be drawing on the dissenting report which the opposition members of the Joint Standing Committee on Electoral Matters wrote and which was tabled in this House only some minutes ago.

I begin by saying that this administration bill contains two provisions on which there is agreement between the government and the opposition. The first is that which brings forward the deadline for applications for postal votes by one day—that is, from the Thursday before polling day to the Wednesday before polling day. We think that this is a sensible move because, as the legislation currently stands, people who get their postal vote application in at the last minute are very likely not to be successful in having it in in time. We think that the Wednesday is a more realistic deadline. The second is the provision which provides for further fixed periods of time to be provided to the augmented Electoral Commission, as defined in section 70 of the Electoral Act, to complete its inquiries into objections against proposed redistributions in electoral boundaries. Basically the new provision deals with the situation where a redistribution is on foot when an election is called, and this part of the act, as it stands, certainly needs to be tidied up.

I said earlier in making remarks on the report of the Joint Standing Committee on Electoral Matters that the integrity of the roll, on the one hand, and the wish to put as many people on it as possible, on the other hand—which is the government's desire—constitutes a great gulf between the government and the opposition. Unfortunately, the Australian Electoral Commission also seems to be dead keen on just sticking people on the roll willy-nilly without having to honour the Electoral Act in its current form—that is, to require people, when they turn 18 or become citizens, to fill out a form and become an enrolled voter. We think that in this country, where we have compulsory registration, it is not onerous to ask somebody to value their vote sufficiently to go to the correct place and fill out a form so there is a record of their signature which can be checked if necessary.

There have long been debates in this place about electoral fraud, and I have no doubt in my mind, having looked at the facts, that it exists. But it has never been pursued. With the coming of technology, however, we ought to be looking at being able to link the rolls in the polling places for each electorate so that, when somebody's name is marked off on one roll, it can be automatically marked off on all the others. I understand that this practice has been trialled in Victoria and worked very successfully, and I am sure that it is not beyond the wit of the Australian Electoral Commission to bring it into operation federally. Doing so could get rid of the difficulty we have with multiple voting, which was done in the last election by, I think, some 18,000 people.

However, the day on which the integrity of the rolls is opened up through automatic enrolment will be a very sad day for our system of voting. I said in my earlier speech that the accuracy of government data which is held is very suspect. I cited the number of tax file numbers that were found in 1999, the last time there was a review of tax file numbers. There were 3.2 million more tax file numbers than there were people in Australia at the census prior; there were 185,000 potential duplicate tax records for individuals; and 62 per cent of deceased clients were not recorded as deceased in the sample match. It was pointed out to us in the committee, when we took evidence on the concept of automatic enrolment, that, for instance, a Centrelink roll, which the AEC now uses, is in fact a composite of anything up to 100 other lists that are brought together, that there is no check-in and that the AEC has no ability to check.

So we support the idea of now introducing legislation which will authorise the tax office to give material, the giving of which by a tax official to any other agency or person was previously proscribed an offence, to the Australian Electoral Commission. This legislation will remove the penalty from the Taxation Administration Act in order that the material may be given to the Electoral Commission by a tax officer.

We feel very strongly about the legal decisions that have already been brought down when there have been challenges to election outcomes—and very often less than 1,000 votes can determine whether a seat is won or lost—and about returning to the roll its integrity, and people's confidence in it, by having people go themselves to become an enrolled voter.

This legislation will also do away with the need to have a certificate signed by a person wishing to exercise a prepoll vote. I hear creeping into the language, both from the Electoral Commission and from others, expressions of the idea that we have an election period. We do not; we have an election day. We have many regulations that say when you can have electronic advertisements—up to what date and so on—and speeches formally launching their campaigns are, for a variety of reasons, given by the leaders ever closer to election day. But a whole host of people can be voting before the speeches are made and before the manifestos, if you like, of the parties are put. This means that people who vote before election day are not given all the information which is given to people who are voting on election day.

This is why we feel so strongly about the maintenance of our system of postal votes and of allowing political parties to be part of that process so that they can send out information informing postal voters of what the political parties' attitudes are. We feel that they need to be placed in a similar position to that of someone who is voting on election day and who is able to hear all the arguments and look at all the printed material prior to casting a vote. So we feel that this lessening of the deterrent that exists for people to turn up on election day—where anybody can just turn up to a prepoll because it is easier; they cannot be bothered on election day; or whatever it is—is not in the interests of someone who is considering the vote that they cast on election day. I can see, however, that it is going to be quite important for prepoll if we are to have an election on 14 September, as that will be Yom Kippur for Jewish members of the Australian population, and they feel very sensitive about the way in which that date has been set with no consideration for their very important religious day.

We oppose doing away with the certificate that is presently needed, even though we acknowledge that the nature and character of a prepoll vote has been changed from being a declaration vote to an ordinary vote. This in itself has led to the great difficulty that was encountered in the last election, when the opening of ballot boxes containing prepoll votes prior to the close of the poll at 6 pm on election day became an improper practice when previously it had been a quite proper practice. The reason is that just before the 2010 election the government changed the law so that a prepoll vote, which was previously a declaration vote and therefore could be opened prior to 6 pm on election day, became an ordinary vote so that it would be counted on election night and we would get a quicker outcome. But the problem was that adequate information was not given to all of the electoral offices right across the country, and so they did not know that the change had been made.

We had two instances, one in Boothby and one in the seat of Flynn, where it was picked up scrutineers that the ballots looked orderly, particularly in Boothby, when they should have all been crumpled up and looking a bit disorderly, as they are in an ordinary ballot box. Consequently, the Electoral Commission was tasked with the difficulty of making a decision as to what happened to those ballot papers. They did seek advice from the Australian Government Solicitor, who knew how many votes were involved. They knew that in neither the case of Boothby nor the case of Flynn would excluding those ballot papers from the scrutiny make any difference to the outcome of the declaration of those two seats. But we on the committee did request—and I do acknowledge that the chairman was strong in backing up my request—that the legal opinion which the AEC had sought be made public.

It is quite unusual for government advice from the AEC to be made public, but it was very important in properly considering the question of the AEC's recommendation that, where there was an opening of a ballot box other than in conformity with the act prior to the close of the poll, all those votes should be simply excluded from the scrutiny. It seemed to me to be an appalling proposition because these were people who had cast a vote in good faith and, through no fault of theirs, their vote was to be made informal; their vote was not to be counted. Voter entitlement and voters being confident that their vote, properly cast, would be counted are a very important principle.

The Australian Government Solicitor gave some extraordinary advice. It said: 'In the present circumstances, we consider that the better course of action is not to include the ballot papers in the count and to quarantine those papers, although, for the reasons we discuss below, it is possible that a court might take a different view.' In the case of Mitchell and Bailey, which involved the seat of McEwen, the Federal Court held that a ballot paper must be included in the count if it was a formal vote. It said: 'If a ballot paper is not informal, the officer conducting the scrutiny will have no legal basis for rejecting it. An implied obligation to admit such a ballot paper to the count thereby arises. Once it is admitted, it must be counted.' The advice went on to try and distinguish that case as not being relevant in a way that I do not think is in any way convincing. I found that the subsequent recommendation of the AEC that those votes should be just simply excluded from the scrutiny was a very—dare I use the word—sloppy way of dealing with the problem.

We did take evidence from others who shared our view. The result is that the report recommends that there should be saving provisions. Having done that, the chair went back to the AEC and the AEC came back with another set of saving provisions which it thought might be adequate for the purpose. As I said, the main question that remains between the government and the opposition is that of when the count is conducted. If the votes are not counted on the night and are simply parcelled, sealed and sent off to the DRO and then somebody else does a count, you are going to have a problem with the tally on the night, but, more importantly, it enshrines the principle that citizens have the right to have their vote counted where the error is not theirs.

It is also very important that we maintain the identification of those ballot papers which are at risk. The reason that we are talking about both ballot papers and envelopes is that the box concerned can have a mixture of ballot papers and envelopes—now all ordinary votes but categorised differently in the mode in which they go into the ballot box. I think this question is an important one because it brings out another question which is yet to be dealt with and for which there is no provision in the act at this stage. The first count of the night is put into plastic bags, not boxes, and sealed up. If someone tampers with those, there is still no provision in the act for what happens to those, so that remains a problem for another day.

On the question of the proposal to allow prepoll to occur up to 19 days prior to election day, we on the opposition side have recommended that it should be no greater than 12. It is up to 19 because of the leeway that exists for when the close of nominations takes place. We are concerned that, again, it is lessening the importance of election day. Every day by which prepoll is longer means that the importance of election day itself becomes lesser. Although we can see the need for having a prepoll, and indeed we are very supportive and have always been supportive of it, we do think that restrictions on it need to be put in place. We think that the amendment that would allow up to 19 days is sending the wrong message, and we feel it should not be allowed to stand unchallenged.

I go back to the question of the opening of the box containing the prepoll ballots. In the review that was done by a former Electoral Commissioner, he made it quite clear that there was not sufficient information given to electoral staff. The fact that it was picked up in only two divisions I think was really good luck rather than good management. To my way of thinking, it is true to say that that same error could have occurred all over the country, and we just did not know about it because there was no scrutineer or other official there who picked it up at the time. The provision that is going to be put into the act will, I hope, state that you have to be careful to comply with the law as it stands and that there is an obligation on the AEC to make sure that all of its people who are in charge of the various stages of elections are properly informed and have all the information. Otherwise, it could happen again.

Another curious thing in the act says that if a box is prematurely opened by an official then their penalty for so doing is less than that for an ordinary punter who also prematurely opens a ballot box. We have recommended that that be the same penalty for both. It is a fairly serious penalty. It can be six months in jail.

There are bits of the Electoral Act where there are serious messages sent out that getting anything wrong with the handling of an election incurs a serious penalty. Yet, at so many turns, we now seem to be loosening the requirements, which makes it easier for what we might say are inappropriate things to happen in the election process, all in the name of it being allegedly simpler to administer.

The opposition feels very strongly about all the amendments that are being brought in by the government, whether it is initially automatic enrolment, automatic so-called updates or changes of address, or letting criminals vote. There are many things that are being done to alter what we consider to be the integrity of the process, which, should we be elected, we will certainly be addressing. I foreshadow that I will be moving amendments in the consideration in detail stage of the debate. I presume that, should the government accept some of the recommendations made by the report, it may be introducing some of its own amendments. Presumably it too will circulate its proposed amendments when we move to the consideration in detail stage.

There has been a lot of strong language used in some of our hearings. Issues have been fiercely pursued, and I am certainly one of those who have fiercely pursued many of the issues. Because we have now had several inquiries into pieces of legislation, as well as the initial report on the 2010 election, I think there is now a greater awareness by many people, who raise the question of electoral matters with me. This simply would not have happened before we embarked on this process of having a greater scrutiny over the process of proposed changes to the Electoral Act.

In conclusion, I would like to say that, when we make changes to the act, there is a huge obligation on the Australian Electoral Commission to make sure that their operatives—the people who are carrying out duties pursuant to the act—are well-informed and that they are carrying out the changes that are made by the parliament in a way which the parliament intended. Perhaps I will just mention one place where that clearly did not occur, which was after the government of the day, the Howard government, had put in place provisions for having oversight—I will use to the word 'audit' in its looser sense—of associated entities and how not one trade union was in the sights of or audited in that way by the Australian Electoral Commission. When we asked the question about why, the answer was given that: 'We were not given any extra resources and we thought Fair Work Australia could carry out some of that duty.' That is not so; if it is in the Commonwealth Electoral Act, it is the Australian Electoral Commission's responsibility.

This is a very serious business. It is a very serious act. It has very strong provisions in it, even though some of them have now been lessened over time—presumably to make it easier for it to be administered. I will just repeat that the opposition, should it be in government, will take a totally different attitude to maintaining the integrity of the roll and to ensuring that citizens who have obligations in fact meet those obligations.