Electoral (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 30 November 2016.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (16:10): I rise to speak on the Electoral (Miscellaneous) Amendment Bill 2016. The parliament has received and dealt with the Electoral (Funding, Expenditure and Disclosure) Amendment Bill 2016. When I say that it has been dealt with, my understanding is that the bill, which related to the new model of public funding for elections and the associated disclosure and expenditure matters, is following its way through the Legislative Council. Because the new model of funding for elections is proposed to be introduced effective in the lead-up to and to apply during the 2018 state election, it was important that it be progressed separately from other significant reforms the government has announced it will proceed with.

The bill we are currently dealing with, the miscellaneous bill, carries the bulk of the recommendations the government has picked up from the Electoral Commissioner post the 2014 election; in fact, it is only about half of what the then electoral commissioner, Ms Kay Mousley, recommended in her report to the parliament in July 2015. Ms Mousley recommended some 30 reforms in legislation, primarily to the Electoral Act, that she considered were worthy of the parliament's consideration before we advanced to the next state election.

I am completely at a loss why it has taken the government until November this year to table a bill, especially as it incorporates only half the recommendations of the electoral commissioner. Nevertheless, having progressed with this bill, the Attorney has since provided a schedule of his assessment/consideration of and reasons for not progressing with the other half of these recommendations.

Another aspect of this bill that is novel, to say the least, is that the Attorney-General, without any direct initiation from a recommendation of the Electoral Commission—or anyone that I know of—has decided that he will introduce three new initiatives. The new areas that seem to be the light bulb moment of the Attorney include introducing restrictions that will ensure that the pre-polling option for a voter is minimised. In short, there will be an abridgement of the time during which a person can elect to pre-poll, that is, to cast their ballot prior to election day.

Secondly, there will be an exclusion zone around which there can be any material advertising the popularity, or promoting the popularity or otherwise, of a particular candidate. Thirdly, the obligations of the Electoral Commissioner in the objects of the act, and the obligations as to what they include, will be to do nothing that would otherwise encourage someone to vote at a time other than on election day.

It is almost like a double negative; that is, they have to ensure that whatever their promotional material is about elections, whatever they are advertising, whatever the educative pamphlets that are issued, they must all have the objective of promoting elections by those eligible to vote between 8am and 6pm on election day and not otherwise. In short, it is to highly restrict accessibility to pre-polling as an alternative to voting on election day.

Secondly, the Attorney decided that the postal vote applications, I think it is fair to say, under the reforms prior to the last state election were to be restricted again as to a political party being able to issue material where someone has applied for a postal vote application. Without going into the full structure of how postal vote applications work, essentially they give someone the opportunity to cast their vote and forward that via the post for consideration, enveloped in a declaration of the circumstances and the name, address and details of the elector.

Again, in short, prior to the last election, we resolved in this parliament that, essentially, the job of handling a postal vote application request was to be done by the Electoral Commissioner and not by political parties. It did not close the gate entirely for political parties to communicate with the prospective voter, but the management of the vote itself (the material to be received, etc.) was to be under the direct supervision of the Electoral Commissioner. The Attorney wants to change that.

The third area, which again appears to have had no source of wisdom from some other electoral body, is the massive increase in fines that is proposed. It does two things: whether you are a corporation or an individual, if you break the rules the fines that did apply, which I think were $5,000 and $10,000, are now to move to $50,000, which of course is very substantial. I have not read any material that supports the need for that, but that is within the purview of the wit or wisdom of the Attorney as to why we would need that.

The government provided us with a briefing in respect of the government's election, after 18 months, not to take up half of these recommendations. I want to highlight what they are and where, from our perspective, there may be some merit in them being pursued. We do not propose to hold up the debate of this bill in this house, but we give notice that we would look at some amendments in the other place, including those of the Electoral Commissioner.

Let me just move to recommendation 2, which was to remove the words 'or the Minister so directs' in respect of the printing of the rolls, as the Electoral Commissioner says they were available in electronic form. The government simply says that there are no amendments proposed at this time. I do not see why we would not make that a contemporary procedural matter but, nevertheless, that is their position.

Recommendation 4 recommends providing clarity on whether a registered political party may have more than one abbreviation entered in the register, so this was to recommend that there be a change to the register. The government simply says, 'We are not dealing with that at the moment.'

Recommendation 9 recommends providing the returning officer with the ability to establish a polling booth at each polling place 'for' the district rather than 'within' the district, to allow for the establishment of polling booths outside the district. The commissioner claims that this would assist with polling for a by-election when a suitable polling location may exist outside of the designated district. Again, the government's response is, 'Well, we don't propose to deal with any amendments at this time.'

Recommendation 10 relates to the preparation of certain electoral material. The Electoral Commissioner recommended that there be a requirement for how-to-vote cards submitted by candidates to be in a form prescribed by regulation to provide clarity and standardised design. The government says, again, that it has no intention of dealing with that at this time. The government does add that it is possible it could be dealt with under the regulations, and we agree with that, but it does not give any explanation as to why it is not going to advance that.

Recommendation 12 relates to the issue of voting papers. Here the recommendation is to review the requirement for an application for issue of declaration voting, either in writing or orally, to be supported by a declaration on the grounds on which the application is made to either tighten or remove the requirement. The Attorney's response was he proposed that the requirement should remain and that the form of the declaration envelope used at pre-poll centres would be changed to require electors to tick a box to identify the ground on which they rely. Clearly this recommendation is bypassed, given the Attorney's intention to restrict pre-poll activity.

Recommendation 13 recommends the removal of the ability of a person to inspect or obtain information on the register of electors who are declaration voters to maintain elector privacy, given that the majority of electors registered are eligible due to the suppression of their place of residence from a roll. In short, this deals with the issue of declaration voting papers by post or other means.

The government claims that the rationale for this explanation is unclear, given that the register of declaration votes does not contain information on a person's address, where it is suppressed, and so should be no different from accessing the electoral roll. It is beyond belief that the government has not clarified that with the Electoral Commission. Nevertheless, that is not one it has taken up.

On the same issue, the recommendation included a review of provisions relating to the supply of details on the register to registered officers of registered political parties and candidates nominated to contest an election. The commissioner said that concerns with parties and candidates accessing this information had been submitted to the Legislative Council Select Committee on Electoral Matters in South Australia. The government's answer: no amendments are proposed at this time.

With regard to recommendation 14, the Electoral Commissioner recommended considering strengthening the democratic process by requiring electors to provide proof of identity in support of their entitlement to vote prior to being issued a ballot paper where they attend a polling booth or apply in person to make a declaration vote. Essentially, this is to minimise or make it more difficult for people to multiple vote. The answer from the government: this recommendation is not supported; requiring the provision of proof of identity would disenfranchise voters or at least provide a disincentive to people voting.

Frankly, I do not recall there being any data to support that, and I would not have thought it would be very difficult for electors to be informed that on election day they would be required to produce some evidence of proof of identity. This is an ongoing issue, and I think the public scratches their heads, quite frankly, at the absurd situation where here we are, in 2016, and we still cannot have a process where there is a means by which we can minimise people multiple voting. Once they have voted, even if they might face a fine subsequently, how that might have corrupted the vote in a particular seat or multiple seats is very difficult.

One way of addressing this problem, as recommended by the Electoral Commissioner, is to do this, and the government simply summarily dismisses it as being impractical or likely to cause people to be disenfranchised. If someone turned up at a polling booth and they did not have proof of identity, then surely it is not beyond the wit to be able to have an alternative process to be able to validate that. It may be the declaration of someone else attending.

Let's assume there was a remote area and someone had driven a long distance to a small country community. It may be a declaration of identity by someone who is at the electoral office, indicating themselves that the prospective voter is personally known to them. It is not beyond the wit to be able to deal with some alternatives here, and I am very disappointed that the government took the view that they would be dismissive of this without any other consideration.

Another thing is it is entirely inconsistent with their idea of having a pre-poll restriction. All the people who go into the pre-poll, assuming that they would have a longer period, would need to be educated to know that the pre-poll is not available to them and it is too late then to get a postal vote application. There are lots of complications that go with that. When you change a system, you have to educate the public.

Obviously, that is the responsibility of the commission to fairly publish information to ensure that prospective voters know if there is a change of rules and how it is going to operate and how it is going to affect them. I find that inconsistent with their desire to restrict pre-polls. The consequential effect that may have on someone who would otherwise avail themselves of that process, especially as I said if having gone to have a pre-poll, say, six or seven days out from an election to find that is not available to them and then find that they have missed the opportunity for a postal vote, I think is quite wrong.

Recommendation 22 was the recommendation to consider removing the requirement to provide the name and address of business of the printer, as it is no longer relevant and difficult to administer and the source of complaints when omitted. This is on the publication of electoral advertisements. Those of us who are in a political party are very familiar with this because obviously it is usually the director or chief secretary of some kind of the registered political party whose name is on the bottom of the form. They are the persons who have to pay up or potentially face other prosecution if there is some problem with the material when published. In any event, this recommendation is not supported, which is the government's answer.

It is important that there be a record of who printed the material in case of legal action. I find that, in a modern sense, quite unnecessary, but in any event that is the government's position. Also under that recommendation is the proposal to remove inconsistency in the penalties, requiring the electoral advertisements and, as I think I have indicated, there was to be the same penalty apply for both a natural person and a body corporate, and that is now to move up to $50,000.

In relation to recommendation 23, on the basis of considerable confusion with the operational provisions that have been experienced by parties and candidates, due to the conflict between being able to lodge a how-to-vote card under section 112A but with any such card lodged under substantially the same appearance as a how-to-vote card lodged under section 66, the commissioner sought clarification of the intent of this section. The government's answer is that no legislative amendments are proposed at this time. The scope of such clarification is in the regulations. If we can do anything to minimise the potential confusion in the statute, then we should be fixing it up in the statute, not just leaving it to the regulations.

Recommendation 24 deals with the question of misleading advertising, but not penalty. The commissioner here says that no state other than South Australia has a truth in political advertising clause and recommends that it should be removed. She points out that the Australian parliament had determined that the Commonwealth Electoral Act 1918 should not regulate the content of political advertising.

She says there is an ethical question about whether the Electoral Commissioner should be responsible for deciding whether political messages published or broadcast during an election are misleading to a material extent. Enforcement of the provision compromises the role of the Electoral Commissioner and often requires the commissioner to determine who is right or wrong in the terms of two major parties. These decisions can then be used during political campaigning and offend against the independence of the Electoral Commissioner.

In short, she says, 'This is the role I have as Electoral Commissioner. This unique provision in the state legislation compromises the independence of the Electoral Commissioner.' In fairness—and this is no criticism but, as we are about to have another electoral commissioner—they are being asked to be a judge (in very quick time, incidentally) and to make a determination usually on documents, letters and material produced in the lead-up to election day or on election day. The qualifications of an electoral commissioner to undertake this role are likely to be inadequate for the purpose of that task.

I do not say that as any reflection on any decisions made by the recently retired electoral commissioner, but I make the point that they have a role in respect of the integrity of elections, distribution of votes and ensuring that those entitled to have a vote get a vote, that there is an integrity in the actual ballot process, etc. To make determinations on whether or not a piece of published material is misleading almost in a vacuum of actual information, other than the allegations of the proponents for or against the assertion of it being misleading, is a very difficult task for anyone. For someone who is not trained in that regard to have to make urgent and interim judgements I think is unfair to the Electoral Commissioner and, frankly, does require some further attention.

Recommendation 25 suggests that there should be a limitation on displays of electoral advertisements. In this regard, she recommends that consideration be given to whether the size limits imposed on electoral advertisements are a restriction on the implied freedom of communication on government political matters. There is confusion amongst candidates in registered political parties relating to the current provisions, as they are not subject to such restrictions during federal election campaigns.

In short, if we use a common example, the size of a poster of a proposed candidate to be put on display obviously has a strict limit. One only has to reflect back on the last federal election and the massive posters that were adorning the entrances to polling booths with submarines and big pictures of Christopher Pyne on them. You name it, we had all sorts. They were larger than life and strung between trees and Stobie poles. It is fair to say that, whilst political parties (certainly, those registered) get clear instructions from the Electoral Commission, they know what the rules are and they can differentiate between a change of rules in a federal and state election.

Certainly, someone running as an Independent candidate may not be as familiar with the rules and it can be confusing. I think it was reasonable for her to put this recommendation to limit the displays of electoral advertisements or remove the limitations—either way, but have some consistency. Again, the government's answer was to be dismissive and say, 'No amendments are proposed at this time.'

Recommendation 26 relates to the published material to identify a person responsible for political contact. Here, the Electoral Commissioner suggested that the current provisions be removed and that there be amendments to provide an explicit exemption for letters to the editor, including under the regulations. Essentially, the Electoral Commissioner pointed out that there is an inconsistency between the requirements for identifying the person responsible for political contact published in newspapers as a letter to the editor and responses to the website of a newspaper.

Requirements for disclosure vary across the levels of government and create confusion amongst the electors, candidates and newspaper editors. As I have said, the recommendation was then made. The government's rather dismissive answer was, yet again, 'No amendments are proposed at this time.'

Recommendation 27 relates to candidates not to take part in the elections. Again, there is some inconsistency between state and federal elections, but the recommendation was to remove the current provision to allow for the handing out of how-to-vote cards on polling day by candidates contesting an election. Alternatively, if the restriction were to remain, it should be expanded to include any place or time in which the voting in the election was occurring, and also restrict candidates from forwarding how-to-vote cards by mail to electors who have applied for a postal vote.

I do not see this as a major area of reform that is necessary to be undertaken, but again I think the government's approach to this is dismissive to say, 'No amendments are proposed at this time,' without any reason why they would not even consider something as basic as this. Reviewing of the penalties also met with the same fate.

Recommendation 30 falls within the category where I again think there needs to be some consideration, as with recommendation 24 on the misleading advertising. Here, the Electoral Commissioner looks at the questions of injunctions. This is what can be done to provide for injunctive relief in relation to a contravention or a noncompliance with the act. Largely, this relates to electoral advertising and having the power to make the pre-emptive strike, I suppose, to deal with it.

The provision under this section precludes injunctive relief in relation to the contravention or noncompliance. The only injunctive relief available in division 2 of the act relates to electoral advertising under section 113. She recommends we amend to not prevent injunctive relief for those other sections, including special provision relating to how-to-vote cards where a person may distribute a how-to-vote card in breach of the requirements. We remember the famous 'put your family first' cards. Clearly, we need to deal with some of these matters.

The other 16 recommendations were taken up by the government; they are in the bill and, in short, we say that they have merit. I will go to the novel aspects of the bill that have been the thought bubble or light bulb moment of the Attorney. I can recall after the 2014 election the Electoral Commissioner making comment about what had been a large number of pre-polls relative to previous elections. One of the reasons for that may have been that there was a rather catastrophic handling, I think, of the postal vote applications.

That was not entirely the fault of the Electoral Commission, but I make the point that it became a bit of a shambles. To deal with people who were making inquiries about how they might vote because they had advanced notice they would be away and, as a result of them requesting a postal vote and not getting the return material quickly, they were advised to avoid the risk of not being able vote by attending a pre-poll centre. It is hardly surprising to me that there was an increase in pre-poll votes at that election. It is fair to say that it is likely that it was not the only reason.

Many more people make themselves available to pre-poll voting, and they do so because it provides convenience. Firstly, I say that that is not unreasonable. Why should they not be able to vote when they want to and when it is convenient to them? The assertion that someone must wait until election day to cast their vote is inconsistent with allowing them to do it anyway if they are going to be away on a trip, or on business, or in hospital. If they vote early, they are also denied the opportunity to hear, listen to and be influenced by the myriad of messages that are going out during an election campaign. Why should someone still not be able to do that, and make a decision about who they are going vote for, and cast their vote early?

On our side of the house, it is not something that is mischievous or to be remedied or an ill that needs to be cured. But it is consistent with the right to have a choice about when you vote and your entitlement to be able to vote. Voting is a democratic right, and if you want to vote early you frankly should be able to. The audacity of the Attorney's approach in this regard, as though this is something that needs to be stamped out—that this move towards people having a choice to vote earlier, on a different day than election day, has to be crushed—is just bizarre to me. It is bizarre to most Liberals because we think that people have a democratic right and a choice. To be told when to vote, I think, is highly audacious and frankly undemocratic. Nevertheless, that is their view.

The other thing that is quite clear is that when one looks at the most recent election (the federal election) and compares their pre-poll vote with the total vote, there has been a shift in people electing to vote prior to election day. Frankly, I do not see it as mischievous; clearly, the government do. Furthermore, I think it is very selfish of the government to take the view that voting on election day is something that ought to be done by citizens quite easily.

The reality is that people work in different shifts of time, they work in multiple arenas, they have multiple responsibilities and they are highly mobile. I think it is fair to say that, increasingly, people are fitting more and more into their daily lives. Even if you allow an hour a day to read all your emails, the fact is that life has changed. The reality is that a lot of people do not know exactly where they are going to be or what their work, family or health arrangements and commitments may be. Not everyone lives according to an appointment schedule. Unfortunately, life is not that simple anymore. The personal responsibility that people have in respect of family commitments and the like are very changeable.

I find it implausible that any fair-minded person would expect in this day and age that it is an easy thing for people to go along to a polling booth on election day. For many, it is fine and they do it. It is convenient and available and they can do it. But not everybody is able-bodied, free from employment or family obligation or, indeed, in a health or ability circumstance to be able to access it, let alone have transport and the like. I find it rather bizarre that the government would go down this line but, in any event, we will have to deal with that in another place.

Regarding the penalty, I do not know whether this to be some sort of fear campaign to frighten people into being too scared to publish anything. More than likely, in my view, it will serve to disadvantage independent or minority parties who may not have the financial wherewithal to meet a liability. Perhaps it is just being done to impose some heavy-handedness towards the major parties, but it does not seem to be necessary to be consistent with other jurisdictions or necessary to stamp out some rampant practice as a punitive measure, so we are at a loss as to how that should be progressed.

Those are the matters that I wish to address in this bill. I indicate that we will be able to give some further consideration to these matters during the adjournment debate, particularly as we will not be sitting after today in this calendar year, and reserve the right to move amendments in the Legislative Council.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (16:47): I thank those members who have spoken. I will be fairly brief in relation to comments. First of all, pre-poll voting and postal voting are not the same, and none of the measures that I am bringing to the parliament and the government is bringing to the parliament are directed towards postal voting. There is no attempt to disturb their rules—about the availability anyway—of postal voting, although obviously we do not see it as a great idea to have political parties involved in postal voting because it is a matter that should be between the voter and the Electoral Commission. Aside from that, postal voting is not the target of any aspect of this.

The basic question here is this: do we have a polling day or do we have a polling month? That is it. It is pretty much as simple as that. There are some people who think we should have a polling month. I guess they enjoy polling day so much that they want to have it extended over 30-odd days. That is fine and that may well be a legitimate point of view. It just happens to be one the government does not share.

The government's view is that, save and except for in exceptional circumstances—at which point in time the voter should be prepared to take the option of a postal vote or go through whatever formalities are required to give effect to a pre-poll vote and have a reason which is more than, 'It's inconvenient,' or in some cases, 'I don't feel like it,' or whatever it might be—people should turn up on the day and vote.

In bringing this matter forward, it was important for me to put on the record that, if the concern that voters have is that on election day there is such a lack of polling opportunity that they are required to stand around in the sun or the rain or whatever it might be for hours on end, that is a legitimate matter of concern. I have discussed this with my colleagues.

It is the government's intention, should these provisions pass through the parliament, that special effort will be made to make sure that there are sufficient polling places, so that people are not unduly inconvenienced by turning up on the day and voting. I acknowledge that, if people are going to have to stand out in the rain or out in the sun for three or four hours just to vote, it would be a significant impost on people, and none of us want to see that happen.

Another thing that is worth mentioning is that the new funding and disclosure regime that we have clearly contemplates a campaign which builds towards a culmination on election day. It would be rather odd if one half of the legislation clearly was pointing to a final moment on election day and yet we had provisions as important as the provisions about when you vote allowing people to dribble in like Brown's cows from God knows when until election day. That is the point, and there appears to be a difference of opinion about that, but we really do think that the situation should be that everybody as much as possible, who does not have a very good reason to do otherwise, votes on polling day.

The next issue is the question of proof of identity. Very briefly, on proof of identity I will quote from Antony Green, who is generally regarded as being somewhat of a savant in this area, a man who knows all things. Mr Green has described proposals to require voters to provide an ID as 'an answer trying to find a problem'. Until such time as we have ascertained with some degree of clarity that this is a prevalent or significant problem, the idea of adding this layer of complexity into polling day is something that I think we should reserve our judgement on.

Imagine this: every single person who bobs up to the polling booth on the day has to produce proof of identity. Imagine the arguments and the hostility that will be generated by people who produce a form of identification which is not satisfactory from the perspective of the electoral officer, or people who just jump in the car and drive there and do not have a wallet with them, or people who just happen to be walking by and think, 'I might as well vote now,' and then when they go in and present after queueing up for a period of time are asked, 'Where is your ID?' and they say, 'We haven't got it,' and then are told, 'Well, go away and come back when you've got one.' Just think about the level of hostility and anger and agitation that would cause at polling places.

I do accept that if we were in an environment where it was clear that there was substantial duplication of voting by individuals and something had to be done, we would have to grapple with this problem. According to Mr Green—not according to me—this is an answer or a solution trying to find a problem. For that reason we do not agree with that.

As to the matter of fines, what we are talking about here in particular is misleading advertising, and we say the fine should be $50,000. I think it is entirely reasonable that somebody who is going about making seriously misleading advertising in the context of an election should think very carefully before they do it. With those few words, I commend the bill to the house.

Bill read a second time.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (16:54): I move:

That this bill be now read a third time.

Bill read a third time and passed.

Sitting extended beyond 17:00 on motion of Hon. J.R. Rau