Electoral (Legislative Council Voting) (Voter Choice) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 16 November 2016.)

Mr TARZIA (Hartley) (16:55): I rise today to speak to the Electoral (Legislative Council Voting) (Voter Choice) Amendment Bill 2016 and, in doing so, indicate that I will not be the lead speaker for the opposition—I reserve that for my good colleague, the member for Bragg.

The Liberal Party will be opposing the bill. This bill was introduced by the Attorney-General on 16 November this year, and the government has described it in the past as the voter choice system of voting. However, it is interesting to note that it has been perceived as everything other than that by outsiders. It has been perceived by outsiders, third parties, and members of the media especially as 'grubby vote-grabbing', as I read in The Advertiser earlier this month. What the bill before us today aims to do, according to the Attorney-General is:

…to make it easier for people to understand the implications of their vote and to have control over their vote and their preferences.

However, it appears that the proposal before the house today is more likely to stop people from voting for minor parties which, in a sense, stops smaller parties from accumulating votes from a very small percentage of original support. In my view it takes control from the voter unless voters engage in the somewhat arduous task of marking every single box below the line. Whilst some voters may actually enjoy that process, I know that a lot of voters, unfortunately, do not.

Since the 2013 federal election—and even before that but especially since that election—a number of concerns were raised by the public concerning something called preference harvesting in response to the federal parliament introducing reform. In the 2016 election, you could number six or more boxes, I believe, above the line and 12 or more boxes below the line. This meant that you could vote for individual candidates in any order you wanted without having to fill out the whole sheet. The results of the 2016 election have, in turn, shown some improvement.

However, since the 2014 state election, a number of bills have gone before this parliament, but they still have not been finalised, to amend the Electoral Act relating to Legislative Council voting. This seems to be a common theme. There has been an array of bills. I note that since the 2014 state election, various bills have been introduced but not finalised, including the Electoral (Legislative Council) (Optional Preferential Voting) Amendment Bill 2014, the Electoral (Legislative Council Voting Thresholds) Amendment Bill 2015, the Electoral (Legislative Council Voting) Amendment Bill 2015, Sainte-Laguë and so forth.

There seems to be no appetite for the Sainte-Laguë model on this side of the chamber. I think it is fair to say that optional preferential voting certainly has some considerable attraction on this side. I know that the Attorney has taken the time to meet with some members of our house in the past and has spoken about a reform similar to that of the Senate reform. However, when it has come back it has not provided that—that is for sure.

The Attorney's bill before us today, whilst we were told to expect similar reform to the Senate reform, is really quite different. It puts forward a plan that I believe is, quite frankly, very bad. If the bill before us were to pass, it would make four key changes: firstly, it removes voting tickets from the Legislative Council election and, secondly, it allows voters to vote 1 above the line to signify their party choice, inclusive of all people nominated by the party. This is known as the 'party group vote' and will be a vote for each of the candidates in that party, as nominated by the party.

Thirdly, it will also change the interpretation of ballot papers to be understood where a person only votes 1 for the lead candidate below the line. This will be interpreted as a vote for the whole party above the line. Fourthly, it allows the validity of the vote to be determined by which part, either above or below the line, has been filled out in its entirety as to the intention of the vote. For example, if the above the line has only been partially filled, but below the line is fully completed, the below the line vote would constitute the valid vote.

I believe that the state would do well to avoid implementing different schemes at the state and federal level. I see benefit in keeping consistency in the interests of the public. In South Australia, we currently have a Legislative Council with multiple minority parties, and some voters argue that there is no basis for change at all. Whilst I am for the polishing of legislation, I am strongly opposed to the bill, which is being called a flagrant attempt to subvert democracy. I will be opposing the bill.

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (17:01): I expect that the member for Hartley has not only given a comprehensive and erudite contribution to the debate on this matter but, importantly, outlined the basis upon which the opposition opposes the bill; notwithstanding that, I will briefly add a few comments.

I think that the public were dismayed at the 2013 federal election when there had been a very clear demonstration of what occurs when persons who nominate for upper house positions (in that case, in the Senate) accumulate, with a harvesting of the vote of multiple other minor groups, to get themselves elected. Sometimes, the names of Senators who were elected were floated as though they had no basis or no merit, that really they were not going to be able to make any reasonable contribution to the Senate, that they should not be there and that the whole situation needed urgent reform.

I would have to say two things; one is that some of them turned out to be not as bad as one thought—the sky did not fall in. Some of them, of course, have been and gone: they did not last very long and their legacy or damage is minimised. The federal parliament has moved amendments to minimise that position being replicated in the 2016 election. They had an identified problem, the public were raising some questions and, quite rightly, they dealt with it with a reform.

However, I also say that just because people are preselected into a political party, even a major political party, does not necessarily mean that they are all going to make a worthy contribution to the parliament, or that they are not a bit eccentric, or they might be motivated by single issues. So, they can be equally disappointing in respect of what contribution they might make. I think of one in another place here who, subsequent to election, was convicted of a very serious offence and ultimately resigned. I think it is fair to say that they blemished the Legislative Council in a public way and that the public was left reeling as to how possibly someone could have got through the system and been elected.

Others will say, 'Well, all the people in the Legislative Council and upper houses are human after all and, of course, they are going to have human failings.' Nevertheless, we have had some doozies over the years so I think we have to be very careful, when we look at reform in the way we elect people, that we do not undermine the democracy we all revere and wish to protect.

In dealing with this situation of preference harvesting—which is seen to be allowing microparties to get into positions of power they should not have; that is the general gist of it—a number of members in this parliament have introduced bills with different models to try to remedy this situation. The Hon. Mark Parnell introduced an optional preferential voting bill in 2014 to try to reform the Legislative Council, and that still sits there. Last year, in 2015, the Hon. Dennis Hood introduced a bill to have voting thresholds for the Legislative Council increased, as his model of reform.

The Hon. John Darley has worked in this space as well and looked at a model of reform. My recollection is that his bill did lapse. I am not entirely sure of the upper house procedure, and it may have actually been resurrected. In any event, an optional preferential model was introduced. Then late last year the Attorney-General introduced his novel idea. It is hardly surprising that he would come up with something that is a bit off the page, but it followed Sainte-Laguë model. He advocated for that model to provide the reform that we needed to protect against this practice.

It is fair to say that the last of these, introduced by the Attorney, has had little support. I am struggling to find someone in his own party who will sing its virtues, to be honest; nevertheless, it must have passed cabinet to be presented. On the other hand, there have been differing levels of support for an optional preferential consideration.

There are two things that are important to us on this side of the house. One is that you have a fair system, but I should say that the first thing that is important to us is that you have a Legislative Council, a bicameral system of parliament. We support that. I know that the Labor Party has had 100 years plus of trying to remove it, nuke it, completely undermine it.

Mr Duluk interjecting:

Ms CHAPMAN: That is not to say that it does not have room for improvement, and the member for Davenport interjected to talk about terms of office and length of time. That may be something that needs to be looked at but, dealing with the issue of harvesting, it seems as though a consideration of the optional preferential models could be explored, and we should explore it.

The second thing I will say is that the Senate has dealt with this issue. It probably needs some extra refinement on how they deal with it, in providing for a vote of up to 12 spaces under the line in the Senate model, but I think it is desirable to be consistent with the federal regime. Certainly, the government does not seem to see this as important. I do, and from our side of the house we think that as much as possible we should minimise confusion for electors.

The Legislative Council is a complicated enough vote as it is. We try to make it easy by having laws which allow for people to have number one in a political party that is their preference, and they rely on that political party to have registered a ticket which will have the flow on from that according to that registered ticket. But we make it very hard for them if they elect to decide who they would want to have in preferences because they are left with myriad boxes which they have to fill in in consecutive order. Sadly, for those of us who do scrutineering, they often fail to do it correctly.

I think it is fair to say that there is a fair level of informality of those who complete the below the line method which perhaps could have been avoided if we had made it easier for them. I think we have to do everything we can in this place to try to remedy that. So, one option is to allow them to have up to 11 votes below the line and not require them to fill out the whole paper. What is the point, if they have gone to the first 11? That is an option for a preferential system where we could consider that, and it would have some consistency with what has been reformed for the Senate. Frankly, I think we need to be looking down that line.

Some time ago, before the Attorney tabled this bill, which does not have our support, it should not be unsaid that the Attorney had not acted to try to introduce some consideration in this space. That is, he had turned his mind to another model after the Sainte-Laguë light bulb moment and gave some consideration to another model which he sketched out for the benefit of some of us in the opposition. It started to have some merit, in my view, but for whatever reason, it was cast aside when he came up with this little gem and decided that he would go with this model.

It may be that he could not get his idea through the party room or the cabinet—I do not know—but I just make the point that, in fairness to him, he has tried to think of some options, but so far he is not succeeded in presenting to us something we think is sensible or consistent to minimise confusion to the elector, namely, with the federal system. In the event that the federal inquiry, which is a standing committee that they have in relation to electoral matters, were to introduce amendments to their system, then again we could have a look at those.

I was recently sent a submission to the federal committee which went to the 2016 federal election inquiry to the Joint Standing Committee on Electoral Matters in Canberra which sets out a number of areas of reform that need to be considered, not all statutory. Some of it is in the educative material published by the Australian Electoral Commission and in the procedures for the implementation of some of the assessments. Although many of them are machinery operations, they are all important and we need to be forever vigilant in trying to ensure that we have the best system available.

Finally, who knows what the landscape is going to be like by the time we come to an election in March 2018. I note that the Animal Justice Party registered a couple of weeks ago as the newest South Australian political party, and there may be a lot more between now and the cut-off time prior to the March 2018 election. Some might disappear. We have quite a number of political parties in South Australia: we therefore have a fairly complex ballot paper in the sense of numbers of parties to be offered to the elector, and therefore I think we need to be very careful about how we progress this.

The Attorney gets some points for at least addressing his mind to this. I do not know entirely why he has dismissed the Senate model in coming up with his more novel approaches. The first two that he has come up with are not adequate or satisfactory from our side but we are happy to keep working on it.

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) (17:15): I thank those who have spoken in relation to this bill. I just want to put a couple of things on the record, first of all, by way of context.

The Governor indicated to the parliament in his speech, after the parliament was prorogued, that reform of the Legislative Council voting system and changes to the constitutional arrangements about the Legislative Council would be part of the reform agenda of the government. The constitutional changes have passed through here, they went to the Legislative Council and were knocked on the head. So they are done and dusted. We are now left with the question of reform of the way people vote for the Legislative Council.

I want to make it clear that I have been listening to people about this and I have made bona fide attempts to engage with the opposition and to address the matters that have been raised by some of the commentators. Can I just put these facts on the line, and these come from one of the few erudite opinion articles lifted from The Australian recently. I quote from the article:

If you were one of the 41,539 people who voted above the line for Family First at the last state election, did you know that your vote nearly elected the Palmer United candidate—

Ms Chapman: Nearly.

The Hon. J.R. RAU: Nearly—

to the Legislative Council?

If you voted for the Nationals, did you know that your vote also boosted the hopes of Palmer United rather than Liberal or Xenophon?

Did you know that?

The Hon. S.E. Close: No.

The Hon. J.R. RAU: I don't think so. It continues:

If you voted for the Shooters and Fishers, you probably would be surprised to learn that you helped the Animal Justice candidate become one of the last contenders standing as the votes were counted.

These are just some of the absurdities that arise from the present system. How does this happen, Deputy Speaker? I will tell you how it happens. You already know, so I am not really telling you.

How it happens is this. In the upper house, there are registered voting tickets and a person who votes 1 in the box for Labor, Liberal, whoever it might be, is deemed to have filled out the whole ballot paper as per that ticket. I issue a challenge to any member of this parliament (including the member for Bragg) to find me one in a thousand voters who (a) knows that is the case and (b) has any idea what the consequence of that is. They would not have a clue. As we all know here, those allocations of their preferences are done over dimmed lights in back rooms in the weeks that lead up to the final nominations for election.

The voter has absolutely no idea—zero idea—what it means when they vote 1 in that box at the moment. I give that zero out of 10 for transparency. All of this nonsense about democracy, how democratic is it to hijack your vote for the hunters and shooters party and shoehorn it across to the Animal Liberation crowd? If I was a hunter and shooter, which I am not, I might consider that to be not exactly what I was expecting my vote to do. If I were a voter for Family First, I would probably not have expected my vote to wind up with Palmer United. So let's not be coy about how absolutely opaque and antidemocratic the present system is. It is an absolute disgrace.

The SL system that I put up here a while ago would have done away with all that rubbish. It would have completely done away with it, but I did receive criticism about that system. What was the criticism? The criticism was that it did not allow people to express a preference. They had to vote for somebody and that is it; no preferences. I took that on board, I did have discussions with the opposition and, after they invited me to come up with an alternative, I did say, 'Okay, I will come up with an alternative which deals with the complete lack of transparency in the present arrangements and still gives people a choice.'

The alternative we have come up with is the voter choice method, which is what we are talking about here. This method is that: if you vote above the line and you want to vote Labor, Liberal, Family First or whoever it might be, you just put 1 in the box and you vote for them, and you vote for only them. If you want to go around and distribute your preferences in more idiosyncratic ways beneath the line, you can do it, and you can do it from 1 to 85 or 1 to 120, depending on how many candidates are down there.

The beauty of the system is that it is completely transparent. The voter knows exactly what they are doing and they have an absolute choice as to whether they are going to vote just for one party or one group or whether they are going to make all sorts of very nuanced decisions about who comes after whom as far as they are concerned and, if they want to do that, they vote below the line. There is no doubt that this is a completely transparent voting system—no doubt whatsoever.

I responded to the request from the opposition to come up with something different which met all the criticisms. I have ticked the box about transparency and I have ticked the box about voters having a choice, so let's deal with what the remaining issues are as I understand them. The first one is: it is not exactly the same as the federal system. That starts from the premise that there is any value at all in the current federal system; I would contend there is not.

I would ask every one of the people in this room: when you had to vote for the Senate a few months ago and that ballot paper told you that you had to express a preference from 1 to 6, could any of you think of a column beyond two that you would give any vote to? I could not. I thought they were all hopeless, except for the Labor Party, of course. I think I found another group that was acceptable in extremis, I think is the terminology, but that was it. After that, I did not want to have anything to do with them, but I was compelled by that foolish system.

Incidentally, that system was introduced over the objections of a great many smart people, like Gary Grey, who was a former national secretary of the Australian Labor Party and knows a great deal more about elections than pretty much anyone I have ever met in my life. He said this was a great travesty, he fought it very hard and, in the end, it was a compromise that the government had to get up in order to get things away before the double dissolution. Like most compromises, it serves no real purpose very well. So, I do not hold any store whatsoever by the federal upper house voting system.

Furthermore, if the argument is, as I think it is being put, 'But what if people get confused? When they are voting in the state election, you are only going to count the box numbered 1 and they might be confused and think they are voting in a federal election.' I do not think people are that silly, but let's assume they are confused between the state and federal system. I say to the member for Bragg: we can fix that; we can fix it very simply by saying that, if they do vote from 1 to 6, 1 to 12 or 1 to whatever above the line, it is only the number 1 that counts and the vote is not invalid simply because they have expressed other preferences. You can do that very simply with savings provisions. You just tell them to ignore the rest of them. That then is not an informal vote and the whole argument about informality vanishes.

The other point that is being put up is: isn't it terrible that we are expecting people to put numbers from 1 to 75 or 1 to 83 below the line for that to be valid? If you are that interested in voting below the line—if you are that fascinated by spending the time voting below the line and picking between the happy birthday party and various other people—you are the sort of political tragic, possibly, who loves that kind of thing. But let's assume you are not. Let's assume you are just—

Ms Chapman interjecting:

The Hon. J.R. RAU: The member for Bragg interjected and I will not comment on what she said, but the import of it was: let's say you like Senator Bernardi more than one of the other senators, for example, what do you do? The answer is that you vote below the line. I understand that, but if the member for Bragg is saying the opposition's fundamental objection to this is that making people vote for the whole lot below the line is making it so tedious, so unpleasant and so risky that they will not do it at all, or if they do, they will make a mistake and render their vote invalid, I say to the member for Bragg: come back to the government with a suggestion about savings provisions.

What if we were to say that you have to vote 1 to 85 below the line, but if you muck it up, provided you have put in more than 11 or whatever it might be, to the extent your preference is clear your vote will be valid but it will exhaust at the moment your preference becomes unclear or stops? The member for Bragg and I both know there are umpteen ways we can put in savings provisions which will remedy that problem. I would like there to be a conversation about this between the houses.

I hope the opposition is saying at this point, 'We don't support this for tactical reasons,' and they are reserving their position. Can I come back to the bit about voting above the line. If the point about voting above the line is confusion with the federal elections, we can fix that by savings provisions. The far greater mischief here is the complete invisibility of what those registered voting tickets are to the voter when they vote.

I can promise the member for Bragg and everyone else here that when the good citizens of Burnside go down to the polling booth saying, 'I want the Liberal Party how-to-vote card,' which pretty much all of them do, they are intending to vote for the member for Bragg and they are intending to vote for the Liberal Party upper house team. They are not intending to vote for Clive Palmer and they are not intending to vote for the hunters and shooters party.

In fact, most of them would be absolutely mortified—imagine them in the hairdressing salons talking about what has happened to their votes—they would be horrified if they thought they were being transported onto these other people who they would not have a bar of. Think of the poor shooters party. Here are these people, conscientiously voting for hunting and shooting, only to discover that their votes have nearly got the Animal Justice candidate up. These people would be beside themselves.

The DEPUTY SPEAKER: Their hair would stand on end.

The Hon. J.R. RAU: Absolutely. My point is this: let's be real about this and let's stop all the bunkum. Let's be honest about this. If people want to vote above the line and they want to vote for the Labor Party, or the Liberal Party, or the Greens, or whoever it is, for goodness sake, let them do that. Let's not try to diddle those people by having this sort of trail of votes that is invisible to them being pulled along by the locomotive at their number 1 above the line. Let's have a bit of honesty about this.

If they do want to go around picking whether Senator A should be ahead of Senator B, contrary to the determination of the Labor or Liberal Party executives, then let them do it, but let them do it below the line. I will come back to this point: if people are so confused between state and federal elections that they put 1 to 6 above the line, we can fix that by saying that only the number 1 counts; the rest of it is just irrelevant. That fixes that problem. So, all of those people are not going to be voting informally; they will be formally voting, and they will be voting for the people they are actually ticking in the box.

If we are on about choice, how dare we tell those electors who vote above the line—and I was actually affronted by this in the federal election because I voted above the line—'Whether you like it or not, you have to vote for a bunch of people you don't want to vote for above the line.' I do not want to have anything to do with them. Why can I not say, 'I don't want to have anything to do with these people; I just want to vote Labor,' or, 'I just want to vote Liberal, full stop, end of story, thank you very much. I am leaving the polling booth'? Why can I not do that? What is wrong with that? If I want to be more subtle about it and I want to reorder the Labor ticket or the Liberal ticket, or I want to pick and choose between people all over the place, that is fine, but I do that below the line. Let's try to be honest with the voters about this. Let's try to stop this terrible subterfuge that has been played on the voters for all these years about what above the line voting means.

For goodness sake, let's try to fix this up so that people can vote and know what their vote is doing. I feel quite strongly about this because I do not like people to be diddled, hoodwinked and taken for mugs—and that is what the present system does with those voting tickets that are filed. Except for people in this place, and a few other sad political junkies, most people out there would not have the first idea that that is what they are doing when they vote 1 above the line. They would not have a clue.

Let's strike a blow for transparency. Let's strike a blow for the citizens being properly and fully informed as to what their vote is going to do. Let's say to our citizens, 'It's up to you. We are not going to be so patronising, as members of political parties, that we are actually going to let you pretend to vote for something, but we are actually going to work out what your vote is for you.' Let's actually say to them, 'You're grown up. You make your own decision.' There you are: why not actually treat people like adults for a change? You cannot treat them like adults if you are playing tricks on them, and above the line voting with registered voting tickets is playing tricks on people.

I come back to these poor shooters and fishers. Just imagine the shooters and fishers party when they go to bed on Saturday night thinking, 'We have struck a blow for shooters and fishers,' and then they wake up the next morning to discover that Animal Justice has been elected off their vote. Some of these people would wonder what has happened, 'Do I live in a democracy?' I feel quite strongly about that.

I am getting a wind-up, although I believe there is some very exciting news that might be coming here from other places. Because other things need to be done, I thank everybody for their contributions.

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) (17:32): I move:

That the bill be now read a third time.

Bill read a third time and passed.