ELECTORAL (MISCELLANEOUS) AMENDMENT BILL

Final Stages

Consideration in committee of the Legislative Council's amendments.

The Hon. J.R. RAU: By way of a brief preamble, this legislation commenced its life in this parliament in May 2010 when, after the last election, there were certain matters which remained contentious. Mr Speaker, in a former role, and the member for Bragg in her then role, both made undertakings to the people of South Australia about what would happen post-election irrespective of what the outcome of the election was. In good faith, in May 2010, a bill to achieve those outcomes was brought before the parliament. It was then that it hit choppy waters.

Ms Chapman interjecting:

The Hon. J.R. RAU: Well, I am not sure it hit choppy water, it became becalmed. Perhaps 'becalmed' is a better way of putting it, and then nothing happened and then, as if by magic, nothing happened. Then it was referred to a committee in another place and then, of course, nothing happened. It went on and on and on. Now here we are in July 2013, and the bill has come back to us again.

It has taken on a slightly more elaborate form since its original day. It is a bit like the snowball rolling down a very large mountain—it has become bigger as it has gone on—but a lot of the material in the bill that went to the upper house has been accepted. I am pleased that has occurred, and a number of the propositions that members in the other place have put forward, although not necessarily providing 'improvement' (I think that is the euphemism they use in that place), certainly can be tolerated; however, there are a number which, for fundamental reasons, are unacceptable.

I want to explain a few of the critical issues from the government's point of view, and we can then deal with the individual passages as we go. I will just explain this for members who might be interested in this matter. There are two main issues in this bill that remain in contention. The first issue relates to how-to-vote cards and the second to postal voting. I want to briefly explain the points of contention on those two issues, so that members understand the context of what will follow.

The issue in respect of how-to-vote cards is this: as people might remember, at the last state election there was some concern expressed about particular tactics employed in some electorates whereby how-to-vote cards which might, to the unseasoned observer, appear to be from Family First advocated, in effect, a second preference vote for a Labor candidate. There was a quick acknowledgement by everybody that that was an undesirable practice and I have sought, since May 2010, to do what can be done to make it illegal for a repetition of that to occur.

However, let us very clearly bear in mind what the mischief was that we were worried about there. The mischief was not that someone could advocate for a second preference vote; that was not the mischief. Indeed, it is entirely legitimate that a person running for office in this country should be able to say—given that we have a preferential system—'If you don't vote first for me, consider voting No. 2 for me.' What is wrong with that? The answer is that there is nothing wrong with that; indeed, I would contend that to say it is illegal for an individual standing for parliament to communicate with their potential voters and say, 'If you don't put me No. 1 at least put me No. 2,' is a breach of the implied constitutional right of political freedom of expression.

Why should it be that I can say to my constituents, 'Vote No. 1 for me,' and that is okay, but state law says that I cannot ask people who do not vote No. 1 for me (because they might, for example, vote a minor party as No. 1) to vote for me as No. 2? I think there are fundamental constitutional issues about that.

There was a High Court decision some time ago when the federal government attempted to prohibit or interfere with political broadcasting—and people here would remember that that went to the High Court—and the High Court said that there was an implied freedom of political expression in Australia. That is not confined to the federal sphere. It is something inherent, endemic in the constitution. It runs through the fabric of the whole of the commonwealth.

I get back to my point—and this is very significant for the way in which we are wishing to treat these amendments: I genuinely believe that these amendments are repugnant from a philosophical point of view, they are repugnant from a constitutional point of view, and they are misconceived because they are attempting to solve a particular problem, which was basically this: one candidate passing themselves off as another candidate; in other words, a particular candidate from party A dressing up in the costume of party B and advocating a second-preference vote for party A. The problem was not the advocacy for the second-preference vote. The problem was the misleading costume in which that advocacy was clothed; that is the problem.

The Hon. M.J. Atkinson: Hear, hear!

The Hon. J.R. RAU: That was the problem.

The Hon. M.J. Atkinson: Exactly.

The Hon. J.R. RAU: To follow my costume analogy a bit further: the member for Bragg is entitled, at the next election, to seek first-preference votes from constituents in her electorate (and I suspect she will). There will be a Labor Party candidate in the electorate of Bragg who will run a fearsome campaign and seek first-preference votes also from the same electors in Bragg. There will probably be others there: the Greens, Family First, the Marijuana Party—who knows how many other people—

Ms Chapman interjecting:

The Hon. J.R. RAU: Well, perhaps not in Bragg.

Ms Chapman: In Croydon, yes.

The Hon. J.R. RAU: Okay. The—

The Hon. M.J. Atkinson: The Palmer United Party.

The Hon. J.R. RAU: The Palmer United Party, the Mint Julep Party—I do not know who they will be, but they will be there. Let us say that it gets close to election day and, unexpectedly—

The Hon. M.J. Atkinson: The member for Bragg is hard-pressed.

The Hon. J.R. RAU: —the member for Bragg is hard-pressed! The member for Bragg has had a shocking poll result from headquarters in Leigh Street. They have stopped drinking their cappuccinos; they have put them down. There are beads of perspiration appearing on their foreheads: 'My goodness! The member for Bragg is in trouble; all hands on deck,' goes the message.

What do they do? They realise that neither the Labor candidate—that hardworking individual—nor the member for Bragg are going to receive a majority of the first-preference votes, and that canvassing the Greens and the others for their second preference will determine who the next member for Bragg will be.

The amendments that are being put forward here will prevent the member for Bragg or our hypothetical Labor candidate from going out and saying, 'Look, I'm the member for Bragg, I'm not pretending to be Bob Brown. I'm not pretending to be Bob Brown; I'm the member for Bragg, I'm in the Liberal Party. But, for goodness' sake, if you can't vote for me No. 1, vote for me No. 2.' The member for Bragg will not be allowed to do that. That is absurd.

Mrs Geraghty: It's not fair.

The Hon. J.R. RAU: It is absurd, it is not fair, and in my contention, it is unconstitutional. I do not think we need embedded in our electoral act a provision which will render elections in 2014, or 2018, or 2022 potentially being upset on the basis of court of disputed return arguments because people were denied the opportunity of putting out second-preference campaign how-to-vote cards.

Ms Chapman: Have you got the Crown Solicitor's advice on that?

The Hon. J.R. RAU: I will get back to you on that. The thing I would like to say is this: I acknowledge that Family First were mightily upset by what happened, and I say they were entitled to be agitated about what happened, but what they were actually upset about was somebody distributing material which appeared to the uninitiated to be their material; that is the problem. It was not the advocacy for a second-preference vote that was the problem.

So the original bill—and I want members to consider this—we put up that went to the upper house said this: early on in the piece, you will file a how-to-vote card. The member for Bragg would file one, the Labor candidate in Bragg would file one and so on. That would go into the Electoral Commission. That how-to-vote card would have a photograph with the member for Bragg on it, no doubt shaking hands with the Leader of the Opposition, smiling in front of a—

Ms Chapman: Burnside tree.

The Hon. J.R. RAU: Burnside tree—a lively tree inside a large building surrounded by fairy lights.

Ms Chapman interjecting:

The Hon. J.R. RAU: Right, fair enough. Anyway, there would be a very latte sort of photograph, there would be 'Liberal Party of South Australia', there would be a logo, and there would be 'written and authorised by Mr Jeff—

Ms Chapman: Green.

The Hon. J.R. RAU: —Green', written at the bottom of it, and it would say, 'How to vote Liberal in Bragg' and it would say, 'Number one, Chapman; number two, Bloggs; number three, Smith; and number four, Jones.' That is what it would say. Our legislation said, if during the campaign period, up to, I think, over the last week—

An honourable member interjecting:

The Hon. J.R. RAU: No, ours. Up to three days before the election, the member for Bragg could change just one thing on that paper; that is, she could change the order of preferences. She could not change the artwork, she could not change her picture, but she could change the order of preferences. That, of course, would not be operational from the point of view of the registered ticket that was appearing in the polling booth because that would be set much earlier.

It would not be operational for the purposes of deciding whether an otherwise invalid vote would be counted as a formal vote because they would have reference to the original filed how-to-vote card, but the member for Bragg could distribute on the day a how-to-vote card which was substantially identifiable but had different numbers—

The Hon. M.J. Atkinson: With three days' notice.

The Hon. J.R. RAU: With three days' notice.

The Hon. M.J. Atkinson: But could not do it otherwise.

The Hon. J.R. RAU: But could not do it otherwise.

The Hon. P. Caica: What if they had sacked the leader? Would the picture still have the leader on it?

The Hon. J.R. RAU: Now, interesting point. The question is, 'Why should this be allowed to happen?' Some people might ask, 'Why should they be able to do that?' I will tell you why they should be able to do that, and the member for Bragg, with due respect, would do well to consider this as well. I will give you an example, which was pointed out to me by Mr Green, who has a bit of experience in Queensland.

The Queensland Liberal National Party discovered fairly late in the piece that one of their candidates in a particular electorate was a member of a certain organisation which obtained a lot of prominence in Germany in the 1930s, and this was regarded as being unhelpful to his chances of election. It was also regarded as being unhelpful to have him as a member of the Liberal Party team because this gentleman, wearing a particular type of clothing, sporting particular armbands and so on, was not seen as being consistent with the Liberal Party message and, so, they disendorsed him, as they were entitled to do.

Because the nominations had closed, they then changed who they wanted their votes to go to, for the purposes of what they handed out on the day. I recall another time, again in Queensland, a lady with red hair endorsed for the seat of Oxley by the Liberal Party and then, after being endorsed for the seat of Oxley, this lady, assisted by a very clever fellow who later on became a member of the upper house in New South Wales, I believe, plus another man who had a shaved head—I cannot think of his name either.

The Hon. M.J. Atkinson: Pasquarelli.

The Hon. J.R. RAU: Mr Pasquarelli.

Ms Chapman: Oldfield and Pasquarelli.

The Hon. J.R. RAU: Oldfield and Pasquarelli, yes, those two rascals. There we have the endorsed Liberal candidate for Oxley who has Oldfield in one ear and Pasquarelli in the other and makes a very interesting speech which attracts a great deal of attention and means that the safest Labor seat in Queensland up to that point falls to this person at the forthcoming election. But her message is not well-received by headquarters and they disendorse her. So she winds up entering the federal parliament as an Independent for Oxley—not as a Liberal member for Oxley. She did not get there because the Liberal Party kept her on their how-to-vote card. In fact, they tried to make sure she did not win, and they continued to try and make sure she did not win. None of her offsiders won anywhere either, for that matter—

The Hon. M.J. Atkinson: By a variety of methods.

The Hon. J.R. RAU: By a variety of methods—and we do not need to go into the various methods that people went into. That went quite badly for a period of time; in fact, it went so badly, the Liberal Party I think wound up with seven or eight seats held in the Queensland state parliament by people more or less in her camp.

The Hon. P. Caica: Eleven.

The Hon. J.R. RAU: Eleven, was it?

The Hon. P. Caica: I think it was.

An honourable member: We got rid of Gunn while we were at it.

Ms Chapman interjecting:

The Hon. J.R. RAU: Anyway, that is my point. Here is another hypothetical for people: the member for Bragg has been negotiating with the Calathumpian Party and has agreed to get their preferences in an exchange of preferences in Bragg in what is promising to be a very hot contest. Then it turns out that either the Calathumpian Party is associated with Saddam Hussein and the member for Bragg no longer wants to be associated with the Calathumpian Party, or it turns out the Calathumpians have dudded her, because they have actually done a deal with the Labor candidate and they were only going to tell her on the morning when she bobbed up and saw that the how-to-vote cards were not quite what she expected.

So the member for Bragg has decided, 'I'll fix you, Calathumpians; I am actually going to renege on my deal too. I am going to change my how-to-vote cards.' Or the Calathumpians are identified during the election period as being a prescribed terrorist organisation under the commonwealth terrorism act. Are you still going to force everybody to hand out how-to-vote cards when you cannot even reorder the number on the ticket? That is the absurdity that we have got back from the Legislative Council.

I am very happy to say that if you are going to be an advocate for a second-preference vote—or third-preference vote, for that matter—you need to make it very clear who you are and not pretend to be somebody else. We do not have an argument about that. But that is not what the amendments in the Legislative Council seek to achieve. What they, in effect, seek to achieve is to prohibit second-preference campaigns full stop.

The second-preference campaign, I think, is a legitimate political tool, and it is legitimate for people to do it provided they own up to who they are and do not pretend to be somebody else. As my daughter would say, 'Wear your own onesie; don't wear someone else's onesie' because some look like giraffes, some look like panda bears and whatever. That is the thing. As long as you are wearing your own onesie, it should be okay and that is our position on this. That is the first point.

An honourable member interjecting:

The Hon. J.R. RAU: It is a big one. By saying a few things now, hopefully I do not have to say as many later. So that will be a relief for everybody, including me. The second point is in relation to postal voting, and I just wanted to say something about that. In Australia we have a system whereby people are expected, as part of their responsibilities and participation as a citizen of this country, that once in every four years they go to the car, they get in the car, they drive the car to the school, they get out of the car, they spend five minutes standing in a line, they collect a piece or many pieces of paper in a ritual that is very familiar to all of us—we have just been talking about it—or they in fact say, 'No, keep your pieces of paper, I don't want them'—whatever. They queue up for a couple of minutes, they have their name crossed off the list and they participate in the great Australian celebration of democracy called voting.

The Hon. M.J. Atkinson: With a blunt pencil.

The Hon. J.R. RAU: With a blunt pencil. It is in exceptional circumstances where a person is infirm or they are in hospital (or something else) where it is reasonable for that obligation to turn up and vote to be lifted from their shoulders. That is fine. The postal vote is the preferred mechanism for this to occur. If you have a look at the number of people using postal votes over the last few years, you would see that if you compare 2002, 2006 and 2010 the number of people going for postal votes is accelerating in an exponential curve; in fact, I think the last election it was 100,000-odd people.

What we are seeing before us is basically the idea, which is happening by stealth, without any parliamentary supervision, without any agreement, without any debate, of our system being turned from a system whereby you go and you vote in a polling place, unless you are infirm, to one where we have basically postal voting with all the rorts and problems that has got attached to that in the same ways you might have for local government. There is a threshold question: is that good enough?

My answer to that is, clearly, no, it is not good enough, but if you have a legitimate reason not to be participating in that process by voting in person, sure, make an application, get a postal vote. That is fine—and there are criteria in the act which we do not seek to disturb—but if you ask yourself the question why are so many people seeking the postal votes, I will give you the answer, and in this answer lies the real mischief that we are trying to deal with.

The answer to the question is this: both major political parties have for their own particular reasons decided that there is some advantage to be had by running what goes euphemistically under the description of a postal vote campaign. That involves them in writing to every member on the roll in their electorate and saying, 'Oh, hello—

Ms Chapman: That's been happening forever.

The Hon. J.R. RAU: No, it hasn't been happening forever, not like—

Ms Chapman: Yes, it has.

The Hon. J.R. RAU: No, it hasn't. What happens is this: they write a very pleasant letter: 'Would you like a postal vote?' Remember, most people out there are sane enough not to be interested in politics all the time; they are just getting on with their lives. They are not like us, they are getting on with their lives. They receive a letter from the member for Bragg or the member for Bragg's opponent saying, 'Would you like a postal vote?' It looks like the member for Bragg, or her opponent, is offering an indulgence personally to this person and it implies that were it not for the member for Bragg or her opponent that individual would not be getting a postal vote. Wrong—completely wrong. They are entitled to a postal vote or they are not. It is as simple as that.

The Hon. M.J. Atkinson: They have to have grounds.

The Hon. J.R. RAU: They have to have grounds; indeed they do. But, why is it that the major parties do this? Let's all put it out there. We know why they do it. Number one: you gain intelligence. You find out who it is that is likely to be a postal voter, and because you find out who is likely to be a postal voter you think, 'Aha, if I can get them to vote early, if I can get my electoral material into their letterbox and nobody else has got their material in the letterbox, they'll vote for me because it's easier to vote for me than vote for everybody else, and I'll get that vote. The other side won't even know this character is voting, the other side won't get to speak to this person or canvas them for support, and I will gain an advantage.'

Now, what this is a bit like, Mr Deputy Speaker, is Europe in the early 1960s—lots and lots of missiles pointing at each other, mutually assured destruction, an arms race, or whatever you want to call it, both sides spending huge amounts of money harassing people with these letters, getting people into the system who really should not be there, by proper analysis, because they do not even have the inclination of their own motion to do this and, more importantly, contaminating the whole electoral process by putting political parties in the equation that delivers you the right to vote.

I do not mind political parties canvassing for your vote once you have got it, and that is exactly what our bill states. We said here that not only the Liberal Party and the Labor Party, but anybody who is a candidate, will be provided with access to the roll of people who have asked for postal votes, so it is a level playing field. If we want to canvass them we can, if the opposition want to canvass that they can, but there are no secrets. We do not have our secret list and they do not have their secret list. Member for Mount Gambier, Independents would have access to that list for the first time as well, as would the minor parties, because, now, members of minor parties and Independents have no idea who these people are.

All we wanted to do was to say, 'Political parties, butt out of this business of looking for postal voters. Let the Electoral Commissioner do that.' The Electoral Commissioner can do that. The Electoral Commissioner will receive whatever applications they receive and there will be a register available. So, the member for Croydon will be able to access, on a daily basis, an updating list of people within Croydon who have sought a postal vote, as will whoever his hapless opponent might be, not that it will do them any good.

Firstly, I am not objecting and the government is not objecting to people getting postal votes—provided they come within the criteria, no problem—but we should not have the fingers of political parties involved in the process of obtaining those votes. The political party can legitimately canvass for that vote, once it has been secured by the Electoral Commission, and we will make the information available publicly for that purpose to occur, but we will get the political parties out of that space altogether.

This is, as much as anything, about cleaning up the process. It is about not only the right thing being done but the right thing being seen to be done. It is about getting any suggestion of there being grubby behaviour or sneaky tactics or misleading and deceptive correspondence influencing voters removed from the equation. It is a transparency issue.

Again, the opposition, for some reason, does not want to participate in this particular reform, or, alternatively, they want to shovel the responsibility across to the Electoral Commissioner and say, 'Alright. You, the Electoral Commissioner, must spend hundreds of thousands of dollars on writing to every single voter in the state, asking if they would like a postal vote.'

In estimates, the member for Elder asked some very probing questions of the Electoral Commissioner, and on record is her objection to these provisions and her costing as to how much they would cost. It is in the hundreds of thousands of dollars, which she does not have to waste on such a silly proposition. I know I have gone on a little bit but, luckily, you will not hear all of that again because I think I have sort of explained the general situation. There is another concern about issue of writs. For some reason, the opposition want to say that the writs must be issued 35 days out from an election—it is presently 28.

The Hon. M.J. Atkinson interjecting:

The Hon. J.R. RAU: Yes; why do we want to take the thrill out of the election? Surely there has got to be some mystery. It is like the royal couple. Surely we did not want to know in advance whether it was going to be a boy or a girl. The mystery of the election: I hope this does not constitute any form of disrespect but it is like going to the Greek Orthodox Church and forcing them to open the curtains while all the stuff is going on. That is the mystery. That is the bit you want to preserve.

If the mystery is going to be on day 35 or day 36 or day 28, for goodness sake, do we have to be that prescriptive? We know when the election is going to be—that is carved into a basalt tablet sitting somewhere on Mount Sinai already. Why do we have to get so preoccupied about when the writs are issued? We do not think that is a useful addition. There are lots of other things in there which we think do not constitute 'improvement' in any objective sense, but do constitute 'improvement' which is not offensive and, therefore, we do not wish to take issue with them.

The CHAIR: The minister has made a brief opening statement and I will offer the same opportunity to the Deputy Leader of the Opposition. At this stage, we are only speaking generally about the amendments, then we will go through them sequentially.

Ms CHAPMAN: I am pleased to hear that, sir, because we have received the government's indication of myriad amendments from the Legislative Council, some of which are agreed to and some of which are disagreed to, so that places in contention a number of proposals in any event and we will need to consider those. We have before us today some amendments that are proposed. I am not sure again if these are fully reinserting what has been proposed in the original bill or whether they are an amendment to that. I appreciate the indication of the Attorney as to the general gist of the areas of dispute on the two main areas, the writ issue I noted on the 35 as compared to 28 days, and I appreciate his summary of the government's position on that.

Obviously, this is not going to go anywhere fast because of the disagreements that are noted, so I do not propose to make any great submission on it at this point. We will consider these during the course of its progress back to the Legislative Council, because obviously there is a disagreement here in any event. The formality, I expect, will be if they receive the notice of disagreement they will flick it back and we will be in a deadlock conference before the end of the week. That is what I am assuming we are hoping, unless of course the government ensures that it is not listed until we can have a look at their proposals.

The CHAIR: We have a series of amendments from the Legislative Council and we have some amendments that have been put forward by the Attorney which deal with those—my apology. Member for Croydon.

The Hon. M.J. ATKINSON: Everyone in the house remembers the dodgy how-to-vote cards of the 2010 general election, but no-one mentions the dodgy how-to-vote cards of the 2006 election.

Ms CHAPMAN: Point of order. We are in committee on the amendments. The Speaker had the opportunity to canvass a number of these matters during the normal debate of this matter.

The Hon. P.F. CONLON: This would be standing order number?

Ms CHAPMAN: Oh, be quiet. Go back to your legal practice.

The CHAIR: You do have to refer to a standing order number.

The Hon. P.F. Conlon: I do not own one like you do.

Ms CHAPMAN: As to what relevance the 2006 election would have to the amendment No. 1.

The CHAIR: I am allowing a bit of freedom to start off. Once we move into the bill clause by clause, obviously we will be confined to that. There is no point of order. The member for Croydon.

The Hon. M.J. ATKINSON: Clearly, the member for Bragg does remember the dodgy how-to-vote card scandal of 2006 and does not wish me to refer to it. When I was Attorney-General I brought an electoral bill into the house. One of the clauses of that electoral bill was to say that election material could not be issued in the election period, supporting the candidature of a candidate, unless it was authorised by the candidate or the candidate's registered political party.

Had that clause become law in time for the 2010 election, the so-called 'dodgy how-to-vote cards', the 'Put your family first' cards, would have been unlawful, because those how-to-vote cards to which the opposition objects were purporting to be how-to-vote cards for the Family First Party, a registered political party, and they were not distributed with the consent of that registered political party.

The Liberal Party opposed that change to the law in 2009. Why did the Liberal Party oppose that law? Because at the 2006 election, in the state district of Mawson, the Liberal Party had distributed just such cards, designed to deceive Family First voters into thinking that the how-to-vote card distributed by the Liberal Party was in fact the official Family First how-to-vote card.

Before the 2006 election, the Australian Labor Party and the Family First Party had reached an agreement about a particular bill before the parliament and as a consequence of that agreement, the Family First political party was going to issue a split ticket in the state district of Mawson; that is, on one side of the how-to-vote card were preferences to the Liberal candidate, the sitting member, and on the other side of the how-to-vote card were to be preferences to his Labor challenger. To defeat the registered how-to-vote ticket of the Family First Party, the Liberal Party arranged for how-to-vote cards to be distributed purporting to be Family First how-to-vote cards, giving the preferences exclusively to the sitting Liberal member.

That is why I proposed the amendment I did in 2009, and it is the guilty conscience of the Liberal Party in 2009 which caused it to oppose that provision, a provision that would have prevented the Labor Party, or some of its candidates, doing exactly what the Liberal Party had done in Mawson and, I think, Light, in 2006. That is why we are still grappling with this problem when it could have been fixed in 2009. The member for Bragg told the house:

...the need for this legislation, is sadly, in my view, a direct result of the misconduct—the very low standard of conduct—of the Australian Labor Party...they should be...embarrassed that there is a need for the introduction of this new regime.

How short is the member for Bragg's memory: the 2006 incident in Mawson and the 2006 incident in Light have gone down the memory plughole, flushed away and not mentioned. The member for Unley said, 'The acts of treachery by the ALP in key marginal seats.' How would the member for Unley have described the conduct of his own party in the state district of Mawson and the state district of Light in 2006?

Ms Chapman interjecting:

The Hon. M.J. ATKINSON: No, I am not rewriting history; I am just giving you a broader conspectus, inviting you to look just one election further back. So, the mischief that the 2009 amendment was designed to address was, to use the words of the member for Unley, 'the treachery of the Labor Party'.

Ms CHAPMAN: Point of order, sir.

The CHAIR: Point of order—what number?

Ms CHAPMAN: Can I ask you to give—

The CHAIR: What number?

Ms CHAPMAN: If I can put this to you: to accept that, at this point, the former attorney, the member for Croydon, is now reflecting on the vote of the parliament on his infamous 2009 legislation, which, of course, failed miserably, and he is reflecting on that vote by re-debating the merits for dropping it down.

The CHAIR: The advice I have received is that it is a different parliament, so he is not out of order but, of course, the member does need to ensure that his comments are related to the amendments before us.

The Hon. M.J. ATKINSON: Indeed. I am a supporter of remedying this mischief.

Ms Chapman interjecting:

The CHAIR: Order!

The Hon. P.F. Conlon interjecting:

The CHAIR: Order! The member for Croydon has the call.

The Hon. M.J. ATKINSON: I am all for remedying the mischief, as long as we are clear on how enduring the mischief is. I move on now to the declaration votes. Perhaps the Attorney will correct me if I am wrong, but subsets of declaration votes are postal votes, absentee votes and pre-poll votes, and there are probably some others I just cannot think of at the moment.

The Liberal Party has historically done very well from postal votes. Indeed, if on election night the Liberal candidate and the Labor candidate in an electorate end up roughly equal on two-party preferred vote cast on the day, we can assume that the Liberal Party candidate will gain from the counting of postal votes, and because postal votes form such a high proportion of declaration votes, normally this counting favours the Liberal Party.

Mr Gardner: Not always.

The Hon. M.J. ATKINSON: Well, the member for Morialta says, 'Always.'

Mr Gardner: I said, 'Not always.'

The Hon. M.J. ATKINSON: Not always—no, I agree with him. Not always but in the great majority of cases. The defect in the Liberal Party's reasoning is that if we have more and more postal voting, somehow this will advantage the Liberal Party. I do not think that follows. If one gets rid of the criteria for eligibility for a postal vote and says that everyone who wants a postal vote can have a postal vote, I think we are going to see a change in the composition of the postal votes when they are counted.

More electors are presenting to cast prepoll votes, and that is a growth area which is reducing the number of people voting on the day. Indeed, I have thought with a view to being re-elected that I should put more effort into getting newly arrived migrants, new Australian citizens, to vote prepoll where they are not approached by myriad how-to-vote card distributors and can get into the prepoll booth unmolested, that would be a better method of making sure they vote formally. But I think for the reasons the Attorney-General gives, that would be undesirable because I think election day is an important ritual and that all those who can vote at their local church hall or school or institute building should do so.

If we get to the situation that the Liberal Party is canvassing whereby a very high proportion of the vote is cast well before election day, then the last week of campaigning, the big stories of the last week, the scandals of the last few hours—and one goes back perhaps to 1949 and to Jack Lang's claim that the then Labor prime minister, Ben Chifley, was a money lender influencing the outcome of the 1949 election at the last minute. That will be confined to history because when these big events occur in the last week, it will not matter very much because a very high proportion of the population will have voted postal or prepoll. I am not sure that that is a good thing for the reasons that the Attorney-General gave.

To those who place a great reliance on a postal vote campaign, I remind members that the late Gordon Bilney who was the member for the federal division of Kingston ran a massive postal vote campaign for the 1996 general election. He studied the results of his electorate and he is convinced that a majority of the postal votes he solicited in that campaign were cast against him.

Mr PEGLER: I believe that the how-to-vote cards and the dirty deals that happened there have to be fixed up but, most importantly, this issue of declaration voting papers by post and other means. I think the Attorney-General was correct in what he had to say but I would also say that when both political parties have sent those out to the electors, a lot of my electors felt that that had actually come from the Electoral Commission, not from the party itself, and they thought they were official documents rather than what they were and, as far as I am concerned, it is a completely underhand trick and I believe that the bill should fix that problem.

I do not agree with what the Legislative Council has suggested, that the Electoral Commissioner must, in respect of an election, send a form for the application by an elector for the issue of declaration voting papers to every address on the electoral roll. I think that is a complete nonsense and I could not agree with that. I will be supporting the bill as it stood from this house, without that amendment on the postal voting papers in particular.

The Hon. J.R. RAU: I thank the honourable member for his contribution. I appreciate his support for these measures; I think they are responsible measures. I also thank the member for Croydon for adding that very important historic perspective which—

The Hon. M.J. Atkinson: It was anticipated by the member for Bragg.

The Hon. J.R. RAU: It was anticipated by the member for Bragg, but it does demonstrate that the honourable member's lengthy service in this place enables him to, in a Graham Gunn fashion, reach back into the mists of time and retrieve very important matters that are lost to others. I can run very quickly through these, given what the member for Bragg has said—

The CHAIR: Just do them one by one, starting off by moving your first amendment.

Amendment No. 1:

The Hon. J.R. RAU: I move:

That the House of Assembly disagrees with the amendment made by the Legislative Council and makes the following amendment in lieu thereof:

Clause 4, page 3, after line 10—After the present contents of clause 4 (now to be designated as subclause (1)) insert:

(2) Section 4(1), definition of how-to-vote card—delete 'a particular candidate or group of candidates suggests that'

What I am doing is seeking to restore the definition originally intended to be adopted in the government bill, which includes modification originally moved in the Legislative Council. It was a government amendment there, that was in response to feedback we had between the houses. This amendment, as reflected above, deletes 'a particular candidate or group of candidates suggests that' from the definition of how-to-vote cards in the Electoral Act to extend the definition to include a card lodged or distributed by a person or third party to accord with section 112A of the government's original bill.

Motion carried.

Amendment Nos 2 and 3:

Ms Chapman interjecting:

The Hon. J.R. RAU: I think the member for Bragg will be happy about this, though. I move:

That the Legislative Council's amendments Nos 2 and 3 be agreed to.

Motion carried.

Amendment Nos 4 to 6:

The Hon. J.R. RAU: I move:

That the Legislative Council's amendments Nos 4 to 6 be disagreed to.

Motion carried.

Amendment No. 7:

The Hon. J.R. RAU: I move:

That the House of Assembly disagrees with the amendment made by the Legislative Council and makes the following amendments in lieu thereof:

Clause 17—

Page 8, line 15 [clause 17, inserted section 74A(1)]—After '(an application form)' insert:

except in accordance with subsection (1a)

Page 8, after line 16 [clause 17, inserted section 74A]—After subsection (1) insert:

(1a) Despite subsection (1), a person may on receipt of an unsolicited request or an application form from another person (an applicant), distribute, or cause or permit to be distributed, an application form to the applicant, provided that the application form is an official form published under the authority of the Electoral Commissioner.

I have moved that the house disagrees with the amendment made by the Legislative Council but, in order to partly accommodate what has been raised, I have put forward what is, I guess, a halfway proposition in the form of the amendment moved to clause 17, page 8.

Significantly, the difference between this and the provision that was moved by the Hon. Stephen Wade, I think, in the other place is the word 'unsolicited' in the first line. That obviously draws a distinction between a request that has been solicited and one that has been unsolicited. Secondly, there are the words 'official form published under the authority of the Electoral Commissioner'; in other words, it distinguishes between the official Electoral Commissioner's printed material and some other material published by a third party which might bear logos and other bits and pieces.

Ms CHAPMAN: I would like to say a few words about this matter. This is the postal voting proposal which, as currently proposed by the Legislative Council, would preserve the right for parties to issue a postal vote application. The government's hybrid version of that is noted and we will consider it in due course.

I just wish to place on the record that the opposition does not accept the assertion that the increase in postal voters in elections between 2002 and 2010 (which were three elections: 2002, 2006 and 2010) which the Attorney claims has now accelerated to over 100,000 voters has been a result of any activity by major political parties seeking to solicit votes in this way, that is, presenting themselves as some sort of authority to provide the privilege and opportunity to the prospective voter to be able to have a postal vote, and that this in some way has induced the voter to exercise their vote by postal vote.

That contention is completely rejected; there is not one shred of evidence for that. In fact, on the face of it, the reason that it is totally inconsistent with the information that there has been an accelerating use of postal vote applications is the fact that major parties in each of those three elections have exercised the right, which they have had to date, to issue an invitation for a postal vote application. The thing that is consistent with each of these elections is that both major parties have actually issued the letter.

I do not disagree with the fact that there has been an increase in postal vote applicants; I do not disagree with that at all. I would suggest to the house that the principal reason for the increased use—given the consistency that the parties have given this imputation to voters all the way through—is that the public firstly do travel a lot more. They are more mobile, and they do find it difficult to be able to identify where they might be on election day specifically. Some know that they are going to be unavailable to a place of polling; they check their diary and know that they are going to be away.

I think we do agree with the assertion by the Attorney—if he was making this point; I think this was implied in his oration—that the public have become wise to the fact that this can be a convenience for them, that is, to use the postal vote application and get it out of the way. They might not be quite sure what they are doing, or they might be sure—they might be sure that they are going to the football and they do not want to be interrupted on that day—so they use it as a means of convenience.

We do agree that if somebody does elect to deal with a postal vote prior to polling day, they miss out on the opportunity of being apprised or aware of events that might occur after they have cast their vote which, if they were able to vote on polling day, would have been available to them, but that is a choice they make. They might be certain of the way they are going to vote, irrespective, or they may miss out on that opportunity, but that is a decision they make.

I do not doubt for one moment that people are more mobile; they do want the flexibility and they do want to ensure they have had a vote, even if they vote early and miss out all of that worthy information that comes cascading into their postbox, Twitter, and email during election campaigns. They will be deprived of that if they vote early, but it is a convenience tool.

I just place on the record that the opposition does not accept that this is in some way to manage the tawdry practice of major political parties in trying to harvest the vote of innocents by using this ploy. I think it was described as removing the risk of grubby and misleading information being presented to these innocent voters, and in some ways producing a level of transparency. Those assertions are utterly rejected by the opposition. I indicate that we support the Legislative Council's position on this, and accordingly do not accept the government's foreshadowed amendment, but will certainly give it consideration when we have had the opportunity to do so.

The Hon. J.R. RAU: I want to make two very brief comments in response.

Ms Chapman interjecting:

The Hon. J.R. RAU: It is better to get it on the Hansard so that people can reflect on it in due course, that is all. The first comment is that to the extent that the comments made by the member for Bragg are suggesting that matters of convenience should—and I am not sure if she was saying this and, if I have this wrong I am happy to be corrected—but to the extent that she is saying that matters of convenience should bear upon whether a person receives a postal vote or not, I think that that is something that obviously we disagree on but, more particularly, she disagrees with herself, if that is what she is saying, because in the second reading speech on the member for Fisher's bill, on 1 November last year, the honourable member went into some considerable detail about her philosophy regarding the voting system. I will pick one excerpt from this:

So I am not into having an electoral system just to make it easy to cover for those who are just too ill-informed or will not deal with the fact of what the rules are in relation to voting. It is not that difficult.

At another point here, the honourable member makes the point and I quote:

Ms Chapman: Totally irrelevant.

The Hon. J.R. RAU: Anyway I am not going to read the whole lot because the honourable member remembers all of this.

Ms Chapman: Well, if you're going to quote it, quote it properly.

The Hon. J.R. RAU: Am I allowed to tender Hansard to put it back into Hansard?

The CHAIR: No.

The Hon. J.R. RAU: I am happy to read it:

In Australia we have compulsory voting as is often described. In fact, we do not have compulsory voting, we have compulsory attendance for the purpose of being identified as having turned up.

This does go to the point about whether it is voluntary to turn up or not.

We can take the ballot paper, we cannot take the ballot paper, we can scribble on it, we can properly complete it, we can throw it in the bin if we like, we can eat it, we can do anything we like with it but we do have an obligation via law to turn up and have our names crossed off. If we do vote, though, we have a system of rules which apply. We have a system which has been identified over a very long time...

Then you go on to other matters. The other point I wanted to make was—

Ms Chapman: What was your first point?

The Hon. J.R. RAU: To the extent that the honourable member was suggesting that there is something glorious about the voluntary nature of bobbing up, and inconvenience should be sufficient because you want to go to the footy, I am just saying that it does not line up with the honourable member's own words. That is the point I am making. That is it. Full stop.

The next point is the fact that there is not one scintilla of evidence to suggest that there is any reason for this to happen, and the government has basically pulled this out of thin air or some other place less desirable. Can I say this, because it is relevant, and I am quoting here from the Electoral Commissioner's document of 16 November 2012 (and this is the actual commissioner not me):

The issuing of postal vote applications by political parties and their involvement in the collection and return to ECSA continues to confuse electors and, for the 2010 state election, generated considerable media coverage and concerns relating to party involvement. It is strongly recommended—

This is not me, this is the Electoral Commissioner—

that the Parliament consider restricting or removing the capacity for political parties to distribute postal vote applications.

That is the Electoral Commissioner, not me, so when the honourable member says there is not support for this, we don't agree, it's just some sort of crazy idea, well if it is to be characterised as a crazy idea, it is a crazy idea dear to the heart of the Electoral Commissioner who, after all, is the independent person who has to police this act. It is something that the Electoral Commissioner has asked this parliament to do, and we are trying to do it, and thank you again, member for Mount Gambier, for supporting the Electoral Commissioner. Anyway, I would like to put that.

Motion carried.

Amendments Nos 8 to 10:

The Hon. J.R. RAU: I move:

That the Legislative Council's amendments Nos 8 to 10 be agreed to.

Motion carried.

Amendments Nos 11 and 12:

The Hon. J.R. RAU: I move:

That the Legislative Council's amendments Nos 11 and 12 be disagreed to.

Motion carried.

Amendment No. 13:

The Hon. J.R. RAU: I move:

That the Legislative Council's amendment No. 13 be agreed to.

Motion carried.

Amendment No. 14:

The Hon. J.R. RAU: I move:

That the Legislative Council's amendment No. 14 be disagreed to.

Motion carried.

Amendment No. 15:

The Hon. J.R. RAU: I move:

That the House of Assembly disagrees with the amendment made by the Legislative Council and makes the following amendment in lieu thereof:

New clause, page 10, after line 40—Insert:

25—Amendment of section 126—Prohibition of advocacy of forms of voting inconsistent with Act

Section 126(2)—delete 'marked so as to indicate a valid vote in the manner prescribed in section 76(1) or (2).' and substitute:

—

(a) marked so as to indicate a valid vote in the manner prescribed in section 76(1) or (2); or

(b) identical to a card submitted for inclusion in posters under section 66.

Motion carried.