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Thursday, 1 December 1983
Page: 3163

Senator GARETH EVANS (Attorney-General)(6.33) —The Government resists this amendment. It is not something either side ought to go to the wall over because it does not involve anything other than proper practice of the Australian Electoral Office which, I think, all of us can be satisfied will be carried out in a bona fide way.

Senator Peter Baume —We are not questioning the bona fides.

Senator GARETH EVANS —If Senator Baume is not questioning the bona fides and he is not worried about rorts or anything like that, it is the Government's suggestion that he can leave it to the sense and common practice of the Electoral Office to ensure that this operates as it is meant to operate without the need for the very restrictive amendment which the Opposition is now proposing. The concept of what is formal and what is substantial is well established as a matter of law in a variety of contexts. Should it ever come in issue that the validity of some contested vote will be decisive for the elections, it will ultimately fall to be resolved by the court if the vote has been allowed in as a result of an application said by the officer to involve merely the formal errors on the part of the voter. So there is a mechanism for ensuring, if it really mattered, that the correct criteria were being employed by the Electoral Office. The sorts of things that the Electoral Office has in mind as constituting formal errors on the part of the elector are a failure to put in the correct subdivision or putting in an accurate subdivision, a misspelling in the name of the person's street perhaps, the omission of a street number but in circumstances where there is no ambiguity about identification of the person in question. What would clearly be a substantive error and not merely a formal error would be the absence of a signature on the application. That simply would not be an application but with some errors in it; it would not be an application at all.

We can argue about things of this kind. We cannot anticipate every one of the kinds of errors, perhaps, of someone from the Middle East who is used to writing in Arabic and who has only, farily recently, acquired citizenship and become used to writing his or her name in ordinary letters. That person may, in fact, misspell his or her own name.

Senator Peter Baume —Arabic or ordinary letters.

Senator GARETH EVANS —Senator Baume knows what I mean. Actually, they are Roman letters and Arabic numerals. Let us be erudite about it. People can even misspell their own names, yet in the circumstances where it is utterly unambiguous and the application is otherwise totally sound. Under those circumstances we believe that the person ought not to be, in effect, disenfranchised through errors of that kind. The difficulties of writing in a more extensive definition of formality versus substantive error are such as to make the present clause appropriate as it stands. We urge the Opposition, on this occasion, to rethink the validity of the arguments it is putting.