Parliamentary Committees

SELECT COMMITTEE ON MATTERS RELATED TO THE GENERAL ELECTION OF 20 MARCH 2010

The Hon. S.G. WADE (15:57): I move:

That the interim report be noted.

I will highlight in what sense the report is interim. On 26 May 2010, the Legislative Council of South Australia appointed a select committee to inquire into matters related to the general election of 20 March 2010. This report covers all of those matters and is the final statement of the committee on those matters.

On 23 February 2011, the Legislative Council amended the terms of reference of the committee to deal with matters coming out of the local government elections. Our second and final report will deal with the local government elections. In that sense, this report is interim.

The committee is the first parliamentary committee that I have chaired, and I thank the members of the committee for that opportunity. On behalf of the committee, I would like to thank our secretary, Mr Guy Dickson, and our research officer, Ms Melrose, for their invaluable contribution to the inquiry.

The committee consisted of myself, the Hon. Mr Darley, the Hon. Mr Finnigan, the Hon. Mr Hood and the Hon. Mr Wortley. I would sincerely like to thank members for the positive and constructive way they engaged with the proceedings of the committee. The issues that we were asked to deal with are, and were, politically sensitive and we knew from the start that we were unlikely to agree.

We expected that there would be a dissenting statement, but in the end I must admit that I am surprised that 18 of the 20 recommendations of our committee received unqualified support. The other two recommendations were not in the more contentious part of the report. In the end, this constructive engagement has enabled us to produce some recommendations that I hope will help deliver a better electoral system for South Australia.

The key task that this council set for the committee was to inquire into the use of bogus how-to-vote cards and other election day material considered to be misleading to electors and to identify measures that may be necessary to ensure that electors are not misled in the future.

In four electorates at the 20 March 2010 election, the ALP distributed bogus how-to-vote cards. They used Family First's light blue colours and it included the statement, 'Put Your Family First'. The cards named the individual House of Assembly electorate and identified the respective Family First candidate as first preference, with an arrow and the words, 'start voting here', which suggested a preference vote flowed, placing the ALP candidate above the Liberal candidate.

In all four seats the Family First authorised how-to-vote cards recommended that their support placed the Family First candidate first with preferences to the Liberal candidate before the Labor candidate. Formal complaints were laid by the Liberal Party and Family First. In response, the Electoral Commissioner advised that, in her view, there had been no breach of the act. In any event, the cards were broadly condemned as misleading by academics, journalists and the wider community. The Independent Weekly on 26 March quoted Flinders University political scientist, Professor Dean Jaensch, as describing the cards as:

...the worst example of its kind I've seen in a 40-year career...It is deceitful, deliberately designed to mislead voters. No doubt at all.

The Sunday Mail of 28 March published an editorial which read in part, 'Vote cards a betrayal of trust'. It reads:

The appalling behaviour of the Australian Labor Party in the state election has damaged the relationship between citizens and the government far more than it appears to realise or care.

Let's be clear about what Labor did in their dodgy document scandal—they had their own followers disguise themselves as rival party supporters in what appears to be a cynical, cold-blooded and calculated plot to trick voters into believing they were from Family First, and then dupe them to steal their preference vote away from the Liberals...

Labor's candidates who participated in this naked grab for power by allowing voters to be deliberately tricked should consider their victories forever tarnished, if not illegitimate. While they enjoy the fruits of office, the damage that has been wrought on our political system is horrendous. The public's faith in those who seek office has been enormously eroded, and the price on that trust is beyond measure.

Unsurprisingly, the Australian Labor Party failed to appear before the committee to justify its behaviour. The majority of the committee found:

The distribution of bogus how-to-vote cards by the Australian Labor Party in selected marginal seats of the 2010 general election fell short of community expectations of the standards of a political party and undermined public trust in the democratic processes of the state.

The fact that the dissenting report demurs from that finding raises questions as to whether the Labor Party has listened to the people. The community has made it clear that this behaviour does fall short of community expectations. The public has made it clear that the incident has undermined its trust in the democratic processes of the state.

To reinforce Labor's belligerence on these issues, I was concerned to see that, at the recent New South Wales election, Labor Party volunteers were stopped by the New South Wales Electoral Commission from using dodgy how-to-vote cards which falsely claimed to be a Liberal card. This incident and the placing of allegedly unauthorised posters and claims of people double voting are currently the basis of a challenge in the New South Wales Supreme Court to Labor's win in Wollongong.

The select committee considers that the use of bogus how-to-vote cards in the 2010 election did not change the outcome in any seat at the election. However, as there is a real risk that bogus how-to-vote cards could determine a seat in the future, or even a government, action needs to be taken to minimise the risk of a recurrence at future elections.

The government has already tabled a bill which it claims will address the problem. It seeks to enact a provision rejected by this council in its consideration of the Electoral (Miscellaneous) Amendment Bill 2009, which included provisions in relation to how-to-vote cards. This council supported two sections of the Electoral Act, sections 112A and 112B, which the government said would deal with bogus how-to-vote cards.

In the bill, under a separate heading, 'Publication of matter relating to candidates', a new section 112C was proposed. This proposed new section was based on section 351 of the commonwealth Electoral Act. In the Legislative Council, section 112C was removed from the Electoral Act amendments at the initiative of Family First.

Section 351 of the commonwealth Electoral Act was enacted in 1940 following concern that the Communist Party had issued material that suggested electors should vote for a particular Labor candidate with their own candidate as number two. Section 351 has been in the commonwealth act for 71 years, yet there has never been a successful prosecution under it.

In fact, the Australian Electoral Commission has recommended that section 351 be considered for appeal as 'it does not apply to the second preference how-to-vote cards increasingly being distributed at federal elections, and does not appear to have any relevant contemporary application'. Further in the submissions it says:

In the light of the unusual historical origins of section 351, its lack of application to contemporary circumstances and the current difficulties about its interpretation for those who are endeavouring to understand and apply the law, the AEC restates its view that section 351 should be considered for repeal.

The select committee has recommended that the government's 2010 Electoral Amendment Act not proceed in its current form. Labor has shown yet again that it cannot be trusted. The bill the government put forward to deal with the dodgy how-to-vote cards is itself dodgy. The Attorney-General, John Rau, put forward the bill saying that it would deal with dodgy how-to-vote cards. It will not.

The committee unanimously supported a full disclosure approach to try to avoid dodgy how-to-vote cards in the future. Under the proposal only how-to-vote cards or second preference how-to-vote cards that have been lodged with the Electoral Commission at least seven days before election day would be allowed to be distributed in the vicinity of a polling place on polling day. In my view these proposals would significantly reduce the risk of unfair behaviour, without making electoral administration or electoral campaigning overly complex and burdensome.

The committee dealt with a range of other matters. At the election there was widespread concern at delays in relation to postal votes. Country Liberal members were active in expressing their concern. The member for Stuart made a submission to the committee in his own name. The committee makes recommendations to increase transparency in postal vote applications and in making the electoral time frame clearer and more fixed.

Another recommendation is that in the year leading up to each general election the Register of Declaration Voters should be actively promoted in the regions so that those with distance-based eligibility are able to reduce the risk that they miss out on a postal vote. There are a series of recommendations that relate to improving electoral services for people with a disability. We recommend that the Electoral Act be amended to increase the flexibility available to the Electoral Commissioner in terms of recording a vote so as to afford people with disability an independent, secret and verifiable vote.

That phrase 'independent, secret and verifiable vote' reminded me of a report I read recently out of the 2008 Ghanaian election. The commonwealth Human Rights Initiative did a report on the Ghanaian election from the perspective of people with a disability, and I will quote a section of that report. The references to the constitution clearly are to the Constitution of Ghana, and it states:

The constitution also covers voter assistance. Section 31(4) states:

(4) A person who has undertaken to assist a blind voter to vote, or a voter who is incapacitated from voting by any other physical cause to vote, shall not communicate at any time to another person information as to the candidate for whom that disabled voter intends to vote or has voted, or as to the number, if any, on the ballot paper given for the use of the disabled voter.

It should be noted, however, that this method does not necessarily comply with the convention [United Nations Convention on the Rights of People with Disabilities] as it does not necessarily guarantee the right to a secret vote.

An article by blind man, Nicholas Halm, conveys some of the problems with the use of voter assistance. In the article he stated how he lived under the illusion that his wife and stepson supported the same political party as he did, but gradually became aware through comments that their political loyalties had shifted. He queried what would have happened had he used one of them as a voting aide in the election, thus confirming the need for an added protection of the right to a secret vote.

I quote that section to indicate the universal nature of human rights and the similarity of the challenges faced by people with disability, no matter where they live. That statement by a Ghanaian person with a disability could almost be, word for word, comments that our committee received. There is definitely significant concern amongst people with disability that what we perceive as an adequate provision—for example, voter assistance—is not enough. They want to have the opportunity to keep their vote completely secret, and there is emerging technology that would make it possible for people with a range of disabilities.

At a personal level, I indicate concern that there seems to have been a faltering of investment in innovation for technology to support people with disabilities to exercise a secret and verifiable vote. The committee certainly highlights the opportunities for the state to work with the commonwealth, particularly the Australian Electoral Commission, to explore opportunities. However, I think it behoves both the state and federal governments to see that as a priority.

There is also concern that the development of voting options for people with disability should not be at the expense of efforts to ensure the broad accessibility of polling places. I must admit I was surprised at the high level of accessibility that the Ghanaians have managed for their polling booths. In a different part of the report, it stated that 136 of the 158 monitored polling stations were accessible to people with disabilities. I suspect that is probably higher than our rate. Considering a Third World country can manage such a high level of accessibility, that is a challenge for us.

The message that we, as a committee, received from people with disability was that they did not want alternative voting options to be at the expense of accessibility. People with disability are already at risk of being invisible within our community, and it is important that we give them every opportunity to express their civil rights in the way of their choosing, whether that be alternative voting methods or in an accessible mainstream voting method. The committee considers that we should improve the process of elector identification at polling booths. We need to make sure that this is economical and practical, but it is important that we have a high level of confidence that only enrolled voters vote and that electors only vote once.

Our final recommendation is that a joint select committee be established after each general election to undertake a review of that election. We considered that the select committee was a useful exercise and that there would be value in such a committee after each election. My understanding is that not only does the commonwealth have a standing committee but that the Victorian parliament also has a standing committee in relation to electoral matters. Our committee felt that we did not need a standing committee but that there would be value in a joint select committee.

I commend the motion to the council and, in doing so, express the hope that the report will make a contribution to giving South Australia a better electoral system and, in turn, a more vibrant democracy.

Debate adjourned on motion of Hon. J.M. Gazzola.