Bills

Electoral (Electronic Documents and Other Matters) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 16 November 2021.)

The Hon. R.I. LUCAS (Treasurer) (11:20): I thank honourable members for their contribution to the second reading and look forward to the committee stage of the debate.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. K.J. MAHER: I rise to speak briefly at clause 1. It is an issue that I canvassed in my second reading speech, but I wish at clause 1 to place on the record further concerns given developments that have happened in the federal parliament since we considered the second reading of this bill. I canvassed in my second reading the fact that this is happening at the very last minute, essentially in time-on of the last quarter, to change the rules about how an election is to be conducted a few short months before an election.

We oppose that sort of change completely, given the amount of time that has been available to make changes in the past. But the area that we feel is most egregious is reducing the amount of time that electors have to get on the electoral roll. In fact, later in the committee stage we will be moving amendments that actually give effect to the number one recommendation of the Electoral Commissioner, that is, to allow enrolment up to and including election day.

A measure to try to reduce the amount of time that electors have to get on the roll seems to be a worldwide phenomenon or tactic of parties on the right of centre to reduce people's ability to vote. Particularly in the US, it is a phenomenon and a tactic known as voter suppression. What the bill before us seeks to do is to contribute to that by allowing less time for an elector to get on the electoral roll, and that is the complete opposite of the very first recommendation of the Electoral Commissioner.

What we have seen in recent weeks is a move for similar voter suppression being replicated by amendments to commonwealth electoral laws. The way the right of centre parties in the commonwealth parliament are attempting to do that is by requiring identification before you can vote. As many commentators have suggested, in terms of the federal parliamentary manoeuvre, it is a poor solution to a problem that does not exist.

In terms of voter fraud—that is, someone attempting to exercise a vote that they are not entitled to—statistics show it is a fraction of a fraction of 1 per cent of times that this occurs. It is a problem that does not exist, and it is a poor solution to a problem. That is the commonwealth government's attempt to try to restrict those who exercise their right to vote.

What will happen is that the commonwealth proposition will disproportionately impact young people, new citizens, low information voters and Aboriginal voters. It is widely accepted, and I know some of my colleagues in federal parliament like Senator Pat Dodson, Linda Burney, Senator Malarndirri McCarthy, some of the Aboriginal members of the federal Labor Party, are ferociously trying to resist the impacts that this will have on Aboriginal voters by requiring identification to try to solve a non-existent problem.

The attempts in this bill in contravention of the recommendations of the Electoral Commissioner to make it harder to enrol by virtue of lessening the time you can enrol, will have the same effect, that is, it will disproportionately impact young people, new citizens, people with less access to information and Aboriginal people in attempting to get on the roll to vote. We will have amendments that we bring forward later in this bill to try to increase not decrease the franchise of people who vote.

There was analysis done some time ago in terms of Aboriginal people voting and I think I will roughly get the figures right, that about half of Aboriginal voters who are entitled to be on the roll are not on the roll. Of the half who are on the roll, only about half vote in any given state or federal election, and informality rates are several times higher than non-Indigenous voters. Leading in a study that I saw some time ago, a bit under 20 per cent of Aboriginal people who might be able to exercise a vote actually do so at each election.

Anything that makes it harder for Aboriginal people, young people, new citizens and those with low information and access to vote, I think is a shameful thing to do. Given the measures the commonwealth parliament is trying to pass in terms of voter identification, this sort of voter suppression tactic will be fiercely resisted by the Labor Party. I will have more to say in amendments that go to that later in the bill, but I wanted to place that on the record given the attempts for voter suppression that are occurring in the federal parliament since we discussed this at the second reading.

Clause passed.

Clauses 2 to 3 passed.

Clause 4.

The Hon. R.A. SIMMS: I move:

Amendment No 1 [Simms–1]—

Page 3, after line 11 [clause 4, before subclause (1)]—Insert:

(a1) Section 4(1), definition of elector—delete '18 years' and substitute '16 years'

This is an amendment that seeks to change the definition of elector from the age of 18 to 16. Currently, as we know, voters go on the roll at the age of 18 in South Australia. This would make voting optional for people who are 16 and 17 in state elections. We in the Greens think that is entirely appropriate. If someone is old enough to pay taxes, old enough to work, old enough to drive, then they should be old enough to vote and have a say on the direction of our state.

We also face some big challenges at the moment. Those challenges are multigenerational. Issues like climate change—the impact of an issue like that will be felt across the generations. We know that young people, particularly of school age, have been leading the charge for climate action. They should have a say on the direction of their state and their country, and the best way we can do that is by giving them an opportunity to vote. We also see this as being an exciting way to engage people more in civics and improve understanding of our politics as well.

The Hon. R.I. LUCAS: The government opposes this amendment to lower the voting age. The age of majority in South Australia is 18. The commonwealth, all other states and territories and most other countries have a voting age of 18. The government's view is that there are many other ways that younger people can make their voices heard and help to shape government policy. The government, therefore, has in the past and continues to oppose this particular move.

The Hon. C. BONAROS: SA-Best does not have a fixed position on the age, as the Greens do, but what I can say—and I am going to disappoint the Hon. Robert Simms—is that we will not be supporting the amendment now, basically because it is not one of our policies; it is a Greens policy.

The Hon. R.A. Simms: Don't let that stop you.

The Hon. C. BONAROS: No. But that is something that we are considering very close to an upcoming election. I think if we were to give serious consideration—I am not suggesting that we have that position; I am just stating the obvious—if we were to consider lowering the age for voting, then I imagine there would need to be quite a bit of work that would need to go into that, and I do not think that work should be done between now and March of next year.

Again, I am passing no commentary on our position in terms of 16 or 18. I am comfortable with 18, personally, as the voting age; that is my position. But even if we were to contemplate that change, I certainly would not be comfortable to do it in the time frame available to us, especially because there is an election in March. It is my firm view that even if we had unanimous support in this place, we would need some sort of campaign leading up to those changes, and we simply do not have the ability to do that at this stage.

The Hon. K.J. MAHER: I will very briefly say that the Labor opposition would be keen to explore this, but for similar to reasons outlined by the Hon. Connie Bonaros we will not be supporting it at this time.

The Hon. J.A. DARLEY: For the record and for the reasons already given, I will not be supporting this motion.

The Hon. R.A. SIMMS: Just to sum up on the amendment, I am disappointed to hear that there does not appear to be support in the parliament for this initiative. I note the comments of the Hon. Connie Bonaros. Feel free to copy Greens policies any time: we have some good suggestions we can share. But this is an issue we will continue to promote. In the interim, young people that do not have an opportunity to vote will have no option but to continue to be out on the streets protesting and taking action on the climate crisis and other issues that affect their future.

Amendment negatived; clause passed.

Clause 5.

The Hon. K.J. MAHER: I move:

Amendment No 1 [Maher–1]—

Page 3, lines 15 and 16—This clause will be opposed

This amendment is, in effect, to oppose a clause of this bill. I might outline for the benefit, particularly of crossbenchers, this amendment and how it relates to further amendments.

We have a suite of amendments that relate to early voting. There are parts of this bill that look at ways to make early, particularly pre-poll, voting easier to occur and that promote earlier voting. Whilst we believe that we should be doing everything we can to enfranchise as many people as possible to vote, we are concerned with the move away from voting on election day.

There are a whole number of reasons for that. One, and probably the most compelling, is that by election day voters get complete information. We know that parties—major, minor—and Independent members of parliament or those who are seeking election for the first time will roll out policies right up to and including the day before the election to maintain interest in that party and what they stand for.

Encouraging or promoting or seeking that people vote earlier necessarily means that there will be greater incidence of people voting without the benefit of all the information to weigh up as to who they might vote for. It is not just the policies that are rolled out, it tends to be that, as a campaign drags on towards the end, it is often where you see some of the unintended consequences that parties and candidates have with their policies in terms of the political debate. Doing things to encourage voters to vote with less full information we think is not good for democracy and for weighing up a balanced judgement.

There is another factor, and I was trying to think how to explain it, but I often look at—and have for many years—the US elections, where early voting is a common feature. It does not have an election day where there is that common movement in the nation to exercise their democratic right on a single day, because it is spread out over so much time. The tradition, certainly in Australia, where the majority of electors cast their vote on election day, brings together a nation in a common endeavour in exercising their democratic right. I think there is something to be said for that institution and that day where people are exercising their right on election day. Again, doing things to erode that takes away from, I think, one of the good aspects of our democratic system.

There is also some of the nuts and bolts of how campaigning works. If you were to have many more people voting before an election—and I think it was the evidence of the Electoral Commissioner to estimates committees that, if the bill passes with some of the changes to make it easier to vote early, it is the intention to have 47 early voting centres around the state. The major parties probably will be able to do it; they will struggle to staff for 12 days 47 voting centres around the state but I suspect they will be able to do it with some degree of difficulty. Certainly, Independent candidates, and particularly those in the Legislative Council who rely on votes throughout the state, I suspect will have much more difficulty than the major parties in trying to staff 47 booths for 12 days before an election.

Later on, I will have amendments that actually make changes to move from 12 days of early voting to seven days. That is a change to the status quo. At the moment it is 12, but later on I have amendments proposed to make it seven days; that is, you would have one of every day of the week to vote early. It would start on the Monday before the election: you would have Monday, Tuesday, Wednesday, Thursday and Friday for early voting, and then you would have the Saturday of the general election where—for the reasons I have outlined before—you would hope and anticipate that you would have the majority of the electorate voting with the full information on that one day, with a common cause to come out and vote on election day. They are for later on.

What I am suggesting here, of course, via the amendment, is not to change anything with the status quo; it is to preserve the status quo, and that is that it ought to be promoted to vote at a polling booth. We are not changing anything with this one, we are just suggesting that we keep the status quo—that is, it ought to be promoted to vote at a polling booth on the day. Certainly, later on, I will be moving amendments that actively make changes to the status quo in terms of early voting, and that is for the reasons I have outlined, to encourage people to vote on the day.

I know there are suggestions, particularly in this environment where we find ourselves in a COVID pandemic, that spreading out voting and having less people at any particular time at a polling booth is desirable. I agree with that, but I do not think changing the Electoral Act in terms of early voting is the only way to do that. I think in second reading speeches there were other members who made comments that I think are very valid, that if it was the government's desire to have less people at any given polling booth, you could, for example, triple the number of polling booths that are available for people to vote at, and then you would have one-third of the people at each given polling booth.

There are other ways to achieve the same end when circumstances require it. I do think circumstances require it now, and I would encourage the government, regardless of what happens to these amendments, to consider further funding for the Electoral Commission to have more polling booths on the Saturday of the election. I think that makes sense regardless of what we do with early voting. But, certainly, this first one does not make any changes; it preserves the status quo, and that is promoting voting at a polling booth on election day.

The Hon. R.I. LUCAS: The government opposes this particular amendment and, when we get on to the more substantive elements of what the Leader of the Opposition has just addressed, we will be opposing those as well. Towards the end of his contribution, the leader addressed what is going to be a significant issue for us for this election. We hope it is only this election, but who knows in terms of future elections. That is in relation to maximising people who participate in our election whilst enduring a global pandemic.

I can indicate to the committee that I have just approved or I am in the process of approving another significant increase in the Electoral Commission's budget for the upcoming election, because the Electoral Commission is going to extraordinary lengths to try to provide a COVID-safe environment for the election. If the Leader of the Opposition's package of amendments gets up, we may well see a relatively significant reduction in the number of people who do participate in voting at the coming election. That may well be the leader's intention. He may well have a view that COVID-hesitant people are more likely to favour the government perhaps.

The Hon. K.J. Maher: I think the evidence is there actually.

The Hon. R.I. LUCAS: Well, I do not know. I have not seen any evidence, and I am not interested in which way they vote or they do not vote. The Electoral Commission's charter is to try to give the maximum opportunity for as many people to participate in an election, and part of that is obviously the issue of a COVID-safe environment within the polling booths or pre-election polling booths to the extent that that is possible. That will include social distancing, one would assume masks and hygiene. There are proposals for cleaning the pencils and a whole variety of other quite elaborate proposals. The government is providing funding to the Electoral Commissioner for ongoing hygiene and sanitation of every polling booth in the state on the day and the pre-election polling booths as well. There will be a management of outside polling booths in terms of social distancing, and the like.

Any of us, and I suspect it is probably all of us, at some stage or another in our political careers—well, clearly we have all voted—have also probably been on polling booths for our particular political parties or organisations we might have been supportive of. We are all aware that there can be very extensive queues at particular periods of the day within our polling booths. Some polling booths are more suited to that than others. It also depends on the weather conditions in relation to whether or not people are happy to queue in a long line without any shade, whether it is raining or whether it is hot, or whatever it might happen to be. We are all aware of the examples of large numbers of people in a small space queueing to vote in polling booths on election day or even at pre-election polling booths.

The government is mindful of the advice we have received from the Electoral Commission. As I said, my view is that if a range of these amendments from the Leader of the Opposition are passed into law, then we potentially might see a significant reduction in the number of people who do actually participate in voting on election day. I think that is a tragedy. All of us will look at these particular provisions. If you are there representing your particular political party or interest, that may or may not influence your views to some degree. Ultimately, the Electoral Commission is there to try to maximise the participation of as many people as possible in the safest possible environment on election day or in the period leading up to election day.

As I said, the government is strongly opposing the package of amendments that will address the more substantive ones later on. This is one part of that overall package, and we are opposing this as well.

The Hon. C. BONAROS: I rise to indicate for the record that SA-Best does support voting on polling day. That is our position. I think we should be doing absolutely everything we can to encourage that. We acknowledge the need for voting outside polling day, but this particular amendment is a permanent change. It is not a COVID change; it is a permanent change. Outside a COVID environment, we are suggesting that there should be a move towards permanently removing the requirement for the EC to permanently encourage voting on polling day, and that is simply something we do not support.

I have spoken in this place before about the importance to us of the news cycle of the weeks or the days leading up to an election and the impact that can have on political parties. That is a very real and significant issue for political parties that they have to grapple with. I note the Hon. Kyam Maher has amendments that address that issue as well, but as a general principle I am not willing to support a permanent measure that goes well beyond the scope of any concerns around COVID and removes the requirement for ECSA to encourage voting on polling day.

The Hon. J.A. DARLEY: For the record, I will be supporting the opposition amendment.

The Hon. R.A. SIMMS: The Greens will not be supporting the opposition's amendment. I understand where the honourable leader is coming from in terms of his concerns. However, we do consider that the views that the government has put, and indeed those of the Electoral Commissioner, are compelling in this instance. We are in the middle of a once-in-a-generation pandemic. There will be people who are hesitant about turning up at polling booths on the set election day, and so from our perspective it makes sense to make things a little bit easier to stagger the process. To the Hon. Cory Bonaros's point about the—

An honourable member: Connie.

The Hon. R.A. SIMMS: Sorry, Connie Bonaros; apologies. I went back into my old Senate days there. I am used to facing off against Cory.

Members interjecting:

The Hon. R.A. SIMMS: I do apologise. To go to the point the Hon. Connie Bonaros made, this idea that the outcome on the election day is the best outcome, I would remind members of the terrible fiasco that unfolded in the United States in 2016 when Hillary Clinton was on the cusp of victory and then there was a cuckoo thrown in the nest by the FBI a few days prior to the election which changed the outcome quite dramatically. The idea that taking the pulse of a state or nation on one particular day always produces the best outcomes is maybe one that should be considered.

The committee divided on the clause:

Ayes 9

Noes 10

Majority 1

Clause thus negatived.

Clause 6 passed.

Clause 7.

The Hon. K.J. MAHER: I move:

Amendment No 2 [Maher–1]—

Page 3, line 23—Delete ‘prescribed by the regulations’ and substitute:

considered appropriate by the Electoral Commissioner

I indicate that this will be a test amendment for not just [Maher-1] No. 2, but [Maher-1] Nos 5, 8 and 9. Essentially, what this does is it deletes a new clause in this bill that relates to how to determine to advertise elections and their various components. What the government's bill seeks to do is allow the advertising about elections and various components to be done by regulation. What our amendment No. 2 and amendments Nos 5, 8 and 9 seek to do is allow that to be determined by the Electoral Commissioner rather than by the government of the day by regulation.

There is a possibility—and there is another amendment that is much later on, I think the very last one, that goes to this point—that once parliament rises, whenever that may be in this parliament, the government of the day could then promulgate regulations in terms of how the election is run, particularly how the election is advertised, and parliament would have no ability to influence that because parliament would not be sitting and it could not be disallowed.

We on this side place faith in the Electoral Commissioner that the Electoral Commissioner is capable of how to determine to advertise elections and their various components, and think it is better done by an independent Electoral Commissioner than the government of the day doing it by regulation that the parliament may have no chance of influencing once it rises.

The Hon. R.I. LUCAS: The government is opposing the amendment. The government's view is it is appropriate to set out the requirements for giving notice in regulations. The government would obviously consult with the Electoral Commissioner in the preparation of any regulation made under this section.

The Electoral Commissioner has a broad responsibility, set out in section 8 of the Electoral Act, to carry out appropriate programs of publicity and public education in order to ensure that the public is adequately informed of their democratic rights and obligations under the act. The legislation only sets out the minimum requirements. The Electoral Commissioner already has discretion about advertising options.

The Hon. R.A. SIMMS: I indicate that we will be supporting the Labor amendment.

The Hon. C. BONAROS: For the reasons outlined by the mover, I indicate we will be supporting the amendment.

The Hon. J.A. DARLEY: I will be supporting the amendment.

Amendment carried; clause as amended passed.

Clauses 8 and 9 passed.

New clause 9A.

The Hon. R.A. SIMMS: I indicate that I will not be proceeding with my amendment.

The Hon. K.J. MAHER: I move:

Amendment No 3 [Maher–1]—

Page 3, after line 27—Insert:

9A—Amendment of section 29—Entitlement to enrolment

Section 29(1)(a)(iii)—delete subparagraph (iii) and substitute:

(iii) has their principal place of residence in the subdivision and—

(A) has lived at that place of residence for a continuous period of at least 1 month immediately preceding the date of the claim for enrolment; or

(B) lives at that place of residence and satisfies the Electoral Commissioner with evidence that complies with any requirements of the Electoral Commissioner that they will live there for more than 1 month from the date of the claim for enrolment; and

This new clause is in relation to a principal place of residence, to change enrolments for an election. This new clause would allow someone who has changed their principal place of residence to change their enrolment prior to completing one month of residency, if they can satisfy the Electoral Commissioner that they will live there for more than one month from the claim of enrolment. This could be in the form of a lease, for example, a tenancy agreement, a statutory declaration or any other form of evidence approved and accepted by the Electoral Commissioner.

This provision seeks to ensure that we increase the franchise as much as possible to ensure that as many people as possible can exercise their right to vote. For the reasons I have outlined in terms of other areas where votes might be supressed, we think this amendment is reasonable. If you can demonstrate that you will live at the claimed enrolment address for more than one month from the time you claim that enrolment, and there is that evidence, you should be entitled to have that address and vote at the address you have claimed.

The Hon. R.I. LUCAS: The government opposes this new clause. This is an alteration to the present enrolment arrangements which would require the Australian Electoral Commission to make significant alterations to websites, forms and any other enrolment materials specifically for South Australia. Consultation would need to occur with the Australian Electoral Commission as a national enrolling body. It is likely they would have difficulties, given their present election window. The AEC has already advised that it is not possible to introduce enrolment up to and on the day before the next South Australian election, which we will address later in the committee stage.

I would add my concerns about the potential for election fraud, that is, that the proposal from the Leader of the Opposition, as I understand it, is that I can merely take out a one-month lease in a marginal seat and indicate that I will call that my principal place of residence and I am therefore entitled to switch my enrolment into that marginal seat. That would seem to be the natural corollary of what the Leader of the Opposition has just said, that is, that proof of this would be a lease arrangement, agreement, or something along those lines.

If I can go along and say that I have a one-month lease, that I am moving out of my existing accommodation—I happen to live with my parents or three of my flatmates and I take out a one-month lease in the marginal seat of Badcoe, Adelaide, or whatever it might happen to be—that I am automatically entitled to be enrolled there, even though I have not demonstrated that I have actually lived there for one month.

I can understand how the Labor mind works, having observed from the other side of the political fence the Labor machinery in operation, but for the reasons I have outlined on behalf of the government and also my own experience of Labor operatives, I am very concerned at this particular proposed amendment.

The Hon. K.J. MAHER: I might just ask the Treasurer to maybe make a comment if he feels capable of doing so. If the Treasurer says, under the Labor amendments, you can take out a one-month lease—

An honourable member: No, you said that.

The Hon. K.J. MAHER: —no, this is what the Treasurer said—and then be entitled to vote in a marginal seat, say Badcoe or Adelaide, my question to the Treasurer is: if you took out a one-month lease prior to enrolments closing, could you then, with that one-month lease, under current law, seek an entitlement to enrol in Badcoe or Adelaide?

The Hon. R.I. LUCAS: The whole idea of a lease was raised by the Leader of the Opposition. I was unaware of his thinking behind this particular amendment. My understanding of the current enrolments is you have to demonstrate that you meet the enrolment requirements that you have live there for a period of time, whatever the period is. It is a month, I suppose.

The ACTING CHAIR (Hon. I.K. Hunter): Three months.

The Hon. R.I. LUCAS: I am advised by the Acting Chair it is three months. But there is a period of time in the legislation that requires you to be able to demonstrate to the Electoral Commission that you are entitled to vote in a particular electorate, whatever that particular entitlement is.

The government's position is to oppose this particular amendment, but I am concerned at the potential, as the Leader of the Opposition has outlined, for proof of an intention to be that you be able to demonstrate that you have a lease agreement for whatever the required period of time might happen to be and you do not have to demonstrate that you actually live in that electorate. You just say, 'I have a lease agreement. I am intending to live in this particular electorate for this particular period.'

The Hon. C. BONAROS: For the record, we do not have a necessarily fixed position on this particular amendment other than to say that in principle we do support what the Hon. Kyam Maher is expressing. I had not thought that people could be as devious as the Treasurer has outlined today.

The Hon. R.I. Lucas interjecting:

The Hon. C. BONAROS: It had never crossed my mind that people would go to such lengths to ensure that they sink the election of a candidate by going to the effort of moving their place of residence just because they care so deeply about not voting, or voting, for a particular candidate. Perhaps it is a relative, and that is why they want to move and make sure they can live in the correct postcode. With all due respect to the Treasurer, I do not buy that argument, but I would like him to just outline a little bit further the AEC implications, which concern me much more than the potential for voter fraud.

The Hon. R.I. LUCAS: As I interjected—and I should not have—we have seen dead people vote in state elections. Let me assure you, if you have been around watching election behaviour, I think there were a number of examples in the AWU elections going back into the 1980s which were well documented where many people, dead and buried for many long periods of time, voted often and regularly in AWU elections.

The advice we have been given—and I think this has been debated in other clauses as well—is we have a common electoral roll with the Australian Electoral Commission. The Australian Electoral Commission is the national organiser of joint electoral roll arrangements, which we share with them. When we come to a later provision, which is the one which is about enrolments up to and on the day before the next state election, we have been advised already, so I am told, by the Australian Electoral Commission that it will not be possible to make those sorts of changes to the common electoral roll for that to actually occur, given we are this late into the countdown to an election.

Obviously they have a federal election in and around the same time as we are going to have a state election, so the advice that I have been given from the Attorney-General's officers is that this would require the AEC to make significant alterations to websites, forms and any other enrolment materials specifically for South Australia. Before this would actually be able to operate, there would need to be consultation with the AEC as the national enrolling body. If the AEC are saying at this particular stage they do not have the time to do—

The Hon. K.J. Maher: So you want to be rewarded for doing it so late?

The Hon. R.I. LUCAS: It is not a question of reward. If the AEC says they cannot do something, there is not much use us passing a law which says they should do it. We do not actually control the AEC. I am not sure in what universe the Leader of the Opposition is living, but we do not actually control the Australian Electoral Commission. If we say, 'The AEC shall do this,' and the AEC says, 'You don't control us, and we can't do that,' then we are going to have to be mindful that we will have that particular difficulty if our state electoral law is saying that they have to do it.

They are issues that it is competent for this house to address during this committee stage. If people are minded to support the Leader of the Opposition's position, they will need to be mindful of the fact that, certainly in relation to the other amendments that we are going to address in a while, they have given us clear advice that they are just not going to be able to do it within the time frame that we are talking about.

If the Leader of the Opposition says it occurs in other states, it may well have occurred a year or so prior to an election, and they had the time to do whatever it is that was required to be done in those particular jurisdictions, but we are now well into November, and we have a state election in March and a federal election anytime in and around that particular period.

The Hon. R.A. SIMMS: I am quite concerned that the honourable Treasurer has introduced this kind of Trumpian rhetoric into this debate. I do hope that, if the Liberal Party lose the next election, we will not be hearing bleating about stolen elections and dead people voting and so on, because it is concerning to hear the honourable Treasurer taking us down that path.

We are supportive of the amendment being advanced by the Labor Party. I do understand the concerns that the Treasurer has raised in terms of time frames, but, to be frank, the fault for that lies with the government, because they have put this bill forward at a minute to midnight. If there were issues around resources and so on, they could have been dealt with had they brought this bill to the parliament earlier in the piece rather than in the last quarter of a parliamentary sitting year on the eve of an election. The Greens are supportive of this change, but we would urge the government, if the change is legislated for, to ensure the commission has the resources it needs to be able to make the changes required.

The Hon. C. BONAROS: Can I just indicate for the record that I am happy to test the argument that has been put between the houses, because what we do know for sure when it comes to elections is that the Australian Electoral Commission always seems to come through with the goods before election day. We introduced optional preferential voting for this chamber, I think it was, in December of the year prior to an election, and we were being told that that was going to wreak havoc on election day, and it went quite smoothly. In fact, we would say it went quite well.

So I am not convinced that it is going to have those sorts of outcomes, and I do agree with comments and the sentiments of the Hon. Rob Simms. For those reasons, I would like to test the argument that has been put between the houses and have some further advice about whether or not this would cause the issues that we are being told it will cause.

The Hon. R.I. LUCAS: I will just respond briefly. The Hon. Mr Simms says we should just provide the additional resources, but the issue is we do not fund or resource the Australian Electoral Commission. That is the commonwealth. He might be thinking of his days in the Senate, when he was talking to Senator Cory Bernardi. We are in the Legislative Council and we do not control the Australian Electoral Commission. We have the Hon. Connie Bonaros here, not the Senator Cory Bernardi. We cannot make a decision to either direct the Australian Electoral Commission or indeed provide additional resources or not to the Australian Electoral Commission. That is a commonwealth jurisdiction.

The other issue I would raise is the issue that the Hon. Mr Simms and the Hon. Mr Maher have raised and that is, we have created this problem because we introduced the bill so late. Well, this was not actually in our bill. We were not proposing this so we did not have this problem. It is a bit disingenuous for both members to say, 'Well, you should have introduced this. You should have read our minds that we were going to introduce these changes, and it would require this particular arrangement with the Australian Electoral Commission.' It was not actually in our bill.

Members interjecting:

The ACTING CHAIR (Hon. I.K. Hunter): Order! We have a process. The honourable Treasurer is on his feet.

The Hon. R.I. LUCAS: We had no idea that these amendments were going to be moved and therefore there was no prospect of us being able to envisage that we would have this particular dilemma with the Australian Electoral Commission.

Members interjecting:

The ACTING CHAIR (Hon. I.K. Hunter): Order! Are there any honourable members who have not taken part in the debate wishing to make a contribution?

The Hon. J.A. DARLEY: For the record, I will not be supporting the opposition amendment.

Ayes 11

Noes 8

Majority 3

Clause 10 passed.

New clause 10A.

The Hon. K.J. MAHER: I move:

Amendment No 4 [Maher–1]—

Page 3, after line 31—Insert:

10A—Amendment of section 32—Making of claim for enrolment or transfer of enrolment

Section 32—after subsection (1a) insert:

(1b) If a person makes a claim for enrolment or transfer of enrolment pursuant to section 69(1a), the person will be taken to have made a claim for enrolment or transfer of enrolment in accordance with this Act (even if the claim does not comply with the requirements to be in the manner and form approved by the Electoral Commissioner and given to an electoral registrar).

This forms part of a suite of amendments that, in effect, allow enrolments or transfers of enrolments up to the close of polls on election day. As I said at the outset, this is one we believe is quite fundamental and believe so probably most strongly of any of the things we are putting forward on this bill. This was the first, the number one, recommendation of the Electoral Commissioner in their report on the 2018 election. There were 16 or 19 recommendations; this was the very first one.

The government has had years to act on the recommendations. The government has chosen—it is all within the government's control—that the bill be debated at this time, at the end of November. That is the government's choice. It is very cute for the Treasurer to say, 'Well, we couldn't have known that these amendments were going to be put up.' If the government had put this bill up in a timely manner, it would have known about these amendments in a timely manner.

The government is seeking to use their tardiness, their sloppiness, as a weapon against these amendments, and I am just not going to accept that. It is squarely on the government that it is being debated at this time. It is on the Attorney-General and it is on the Treasurer that we are debating it at this time.

Other jurisdictions (from memory, the Northern Territory and Queensland) allow very similar provisions: enrolments up to and on election day, and that works. If this was something we were trying for the first time in any jurisdiction around Australia there might be—I would not accept it, but there might be—an argument from the Treasurer that this was difficult to implement close to an election. Well, it works in other jurisdictions. We do not accept that you cannot make things work, and it is essentially rewarding the government for their own tardiness if you accept the argument that we are doing this close to an election.

As the Hon. Connie Bonaros correctly pointed out, I think it was in the lead-up to the 2014 election where the procedures for not just counting votes but how votes were cast in an election were changed in the December before the election. That was despite the advice that this could not be done; it was going to be too difficult. Guess what? It was done.

I have every confidence that a change that brings enrolments into line with how other jurisdictions do it can be done before the election, as it has in the past, even when it was said it was going to be difficult to do so. I am absolutely convinced there can be processes that can be worked out between the state and the commonwealth electoral commissions in terms of whether votes could be cast as declaration votes to make sure they are preserved to give effect to enrolments up to election day.

As I said, it was the number one recommendation of the Electoral Commission. This is something that I would have preferred happened a year or two years ago in enacting the number one recommendation of the Electoral Commission. If the Treasurer's argument that it is getting too close to an election or, 'We have only just known about this late in the piece,' is accepted, then it is rewarding the government for their own tardiness and it creates an incentive to do things like this at the last minute so you do not have to accept amendments.

This one, as I have said, we think is fundamental. The government's proposal makes it harder to get on the electoral roll. It closes the time that you have to get on the electoral roll. That is the opposite of what the Electoral Commissioner has suggested. That would make voting more difficult. That would disenfranchise more people.

What we are seeking to do, as I said, is what is done already in other jurisdictions. Quite frankly, I have every confidence that this can be made to work.

The Hon. R.I. LUCAS: The government is opposing this particular amendment. I am advised that this amendment goes further than the Electoral Commission recommendation and actually includes transfers of enrolment as well as late enrolment for new electors. The government is opposing both, allowing for both late enrolment and late transfer of enrolment at the present time.

The state Electoral Commissioner sought advice from the federal Electoral Commissioner regarding this particular issue. By letter dated 7 September, the Electoral Commissioner, Tom Rogers, wrote a letter to Mick Sherry, the state Electoral Commissioner, as follows:

Dear Mr Sherry,

Implications for potential enrolment on the day.

As discussed in our phone calls late last week, I am aware that the South Australian government is considering potential amendments to South Australian electoral legislation with the intent of enabling citizens to enrol on the day of the state elections. As you and I both discussed, similar provisions apply to some but not all other Australian state jurisdictions, nor is this facility available for federal elections.

The levels of cooperation between our two agencies is excellent so it pains me to inform you I have grave doubts about our ability to support the implementation of this measure in time for your next state election in March 2022.

The AEC is already fully committed to the planning and conduct of the next federal election which can be called any time between now and late May 2022. The substantial complexity of preparing a federal election with a COVID overlay, recent significant legislative change and implementation of free distributions in two states have created the conditions for the most complex election in our history.

Adding additional complexity without sufficient time for adequate planning and resourcing introduces a serious risk of electoral failure. Such provisions are technically possible and when implemented with adequate planning can further extend the franchise. However, given how deep we mutually are in the South Australian federal electoral cycles, I am unable to guarantee sufficient support in the days following your election to guarantee all on-the-day enrolment would be finalised in time for those votes to be included in your count.

This is particularly the case given the state and federal events may be temporally close. Of course, were this measure to be implemented for future elections, we would be happy to work with you on implementation costs and risk mitigation. I am happy to discuss this matter with you further,

Yours sincerely,

Tom Rogers.

That letter was written on 7 September. That is actually two months ago, when he was indicating that they did not have enough time, and here we are two months later in November. So if there was not enough time in September, one can imagine there is certainly not going to be enough time, given that this bill, if it passes, may well pass in November or, if the Speaker of the House of Assembly has his way and we are reconvening in December, it may well not pass until December.

Given the bill is being amended here, it will have to go back to the House of Assembly for further consideration. The Hon. Ms Bonaros has indicated her willingness to work between the houses, potentially on at least one amendment or one set of amendments, so this bill might not pass the state parliament until December. If there was a problem meeting a deadline in September, one can just write your own explanation if it does not pass until December.

I have read the letter in its entirety and the two phrases which concern me, I guess, and I would hope might concern honourable members in this chamber, is where the Electoral Commissioner says 'serious risk of electoral failure'. If that is not a clear warning sign, let's make it quite clear that the federal Electoral Commissioner has used that phrase 'a serious risk of electoral failure'. He also goes on to say:

…I am unable to guarantee sufficient support in the days following your election to guarantee all on-the-day enrolment would be finalised in time for those votes to be included in your count.

So he is actually saying that he cannot guarantee, if we go ahead with this—and that was in September and we are now looking at going ahead with it in November or December—he is saying, 'I can't guarantee that all of your on-the-day electoral enrolments will be finalised in time for those votes to be included in your count.'

If that is the case, and I am only reading the words of the Australian Electoral Commissioner, people who believe that they have voted and that their vote is going to count may well find, if the Australian Electoral Commissioner's view of the world is accurate—and I have no reason to doubt it; it is not a partisan person or position—that some of them have been misled into believing that they can enrol right up until election day and that their vote will count. The Australian Electoral Commissioner is saying, 'Well, I can't guarantee.'

I can only repeat to the Hon. Mr Simms that it is not an issue I control with the Australian Electoral Commissioner. We cannot direct him, and we certainly cannot provide additional resources as a state government to fund the Australian Electoral Commission. He is saying we have all these other things going on at the moment, and he does not say it is highly likely but there is clearly a reasonably strong prospect that the federal election is going to be in and around our state election timetable and he is just not in a position to do it. He says if you want to do it for future elections, then there is plenty of time to work together to do it.

The reason I have read explicitly word for word the Australian Electoral Commissioner's words is, if this was to pass and if this is what the state electoral law is going to look like then no-one is going to be able to say that they were not warned by an independent Australian Electoral Commissioner of the potential consequences (1) of electoral failure, and (2) that he cannot guarantee that certain people who think they have voted lawfully will actually have their votes counted in the state election. I think that would be a travesty, and it is for those reasons the government maintains the position that we have adopted that this particular amendment and series of amendments should not be supported.

The committee divided on the new clause:

Ayes 11

Noes 8

Majority 3

New clause thus inserted.

Clause 11.

The Hon. K.J. MAHER: I move:

Amendment No 5 [Maher–1]—

Page 4, line 7—Delete ‘prescribed by the regulations’ and substitute:

considered appropriate by the Electoral Commissioner

This is, as I outlined at amendment No. 2 [Maher-1], a series of amendments that are to the same topic, that is, allowing the Electoral Commissioner to determine how to advertise, rather than it being done by regulation. I indicated that amendment No. 2 would be the test clause. So much has gone on I am having trouble remembering, but that was successful, I think.

The Hon. R.I. Lucas: No, you lost.

The Hon. K.J. MAHER: We lost the amendment?

The Hon. R.I. Lucas: No, you won.

The Hon. K.J. MAHER: The sneaky and tricky and devious and misrepresenting Treasurer—

The Hon. R.I. Lucas: Nevertheless, he knows which ones he won and lost.

The Hon. K.J. MAHER: The Treasurer has indicated to me that I won that amendment, and I ought to press on with rest of them, and I thank him for his advice. As I said, it is the second in the series that also then will include Nos 8 and 9 that go to allowing the Electoral Commissioner to determine how to advertise elections and their components rather than by regulation.

The Hon. R.I. LUCAS: One word of advice to the honourable Leader of the Opposition, because he will be here after the election and I will not be: it is always useful to remember which votes you have won and which ones you have lost. It is a very useful skill to develop in committee stages. This amendment and a couple of others we accept are consequential. We oppose it, but we are not going to speak to it.

Amendment carried; clause as amended passed.

Clause 12.

The Hon. K.J. MAHER: I move:

Amendment No 6 [Maher–1]—

Page 4, line 10—Delete ‘2’ and substitute ‘14’

This goes to the same issue as amendment No. 4, which I distinctly remember this chamber decided to support, and that is enrolments up to and including election day. This amendment allows the rolls to be open for 14 days after the issuing of the writs to give effect to what the chamber viewed to pass in amendment No. 4.

The CHAIR: The Hon. Mr Simms, do you want to indicate your intentions?

The Hon. R.A. SIMMS: The Greens will be supporting this amendment.

The Hon. R.I. LUCAS: Very clever trick, but it is the government's view that this is not consequential on—

The Hon. K.J. Maher interjecting:

The Hon. R.I. LUCAS: I just say it is the government's view that this particular amendment is a separate issue and has not been determined yet by the committee. The end result might be the same, but it is certainly a different issue. The bill changes the date of close of rolls from six days after the issue of the writ to two days after the issue of the writ. These changes were made on the recommendation of the Electoral Commission and were consequential on changes made to postal voting timelines.

This opposition amendment significantly extends the date for the close of rolls from the current six days after the issue of the writ to 14 days. This amendment would create major delays in processing postal votes. The opposition amendment goes against the Electoral Commission of South Australia recommendation, which is intended to enfranchise postal voters. The South Australian Electoral Commissioner, Mr Mick Sherry, wrote an open letter to—

The Hon. R.P. Wortley interjecting:

The CHAIR: The Hon. Mr Wortley!

The Hon. R.I. LUCAS: The South Australian Electoral Commissioner, Mr Mick Sherry, wrote an open letter to members of the South Australian parliament on 25 October of this year, explaining the Electoral Commission's proposal to change the date for the close of rolls, and I quote:

The basis of the Electoral Commission's proposal was to provide for an almost equivalent period during which postal votes could be issued with the best chance for them to be received and returned to be included in the count. Without this equivalent period, a significant number of postal voters would be inadvertently disenfranchised. While I understand there has been considerable debate regarding the bringing forward of the date for the close of the roll it is not to disenfranchise young people, or others who have not enrolled prior to that date, as they are required to do by law when they become entitled.

The close of the rolls is the major focus of our earliest component of the election advertising campaign and it commences around four to six weeks prior to the issue of the writs. Since the introduction of fixed-date elections, at the 2006 state election, those barriers resulting from the calling of an election without notice prior to the issue of the writs have been removed. The election advertising campaign will commence during January 2022 and avail every South Australian the opportunity to ensure their enrolment is brought up to date by the date set for the close of the rolls.

I think it is comforting for South Australians to know, and members in this chamber to know, that the Electoral Commission—independently—is going to commence their advertising campaign in January. Clearly our election is currently scheduled to be 19 March. It can be delayed by up to three weeks depending on the timing of the federal election, so the state election could be anywhere between 19 March, as currently scheduled, or through to early April under provisions of the Constitution Act, or the Electoral Act, or both.

An advertising campaign in January by the independent Electoral Commission will be urging all people who are entitled to vote and who have not enrolled, for whatever reason, to do so and there will be an extended period, I would imagine. I presume the Australian Electoral Commission may or may not be doing similar things although they do not have the advantage of a fixed electoral date. They have an end-by date, as I understand it, which is May of next year, but anyway, that is their issue, not ours. The government sees this as a significant, different issue, which is still to be determined by a vote of this committee.

The Hon. K.J. MAHER: I thank the Treasurer for his comments and I can say, from my recollection—I am pretty sure it is correct—that this was a suggestion, when we were drafting it with parliamentary counsel, to make it easier to give effect to the enrolment closing up until election day. From my memory it was so there would be less votes counted as declaration votes because the rolls would not have closed. It would make it easier administratively in giving effect to enrolments up to and on election day. But if there are reasons, I am happy between the houses to work with the government.

If the desire of this council for enrolment up and to election day can be given effect—and there are reasons why this should be shortened—we will work with the government, but certainly this was done sitting down with parliamentary counsel and drafting to give better administrative effect to the enrolment up to and including election day. If there are genuine reasons that do not detract from what the council has passed in enrolment until election day we are happy to work between the houses on it.

The Hon. R.I. LUCAS: The Leader of the Opposition is indicating issues that might relate to the amendment that has just passed, which the government was opposing. What we are saying here is that this is an important separate issue which is this issue of allowing people to vote in that period leading up to election day, and that is a significant issue in a range of other amendments that are obviously going to be canvassed during the committee stage of the debate.

I think it is important not to look at this particular amendment as to what its implications might be in relation to the amendment which has just gone past. It is actually to consider this significant substantive issue in and of itself and that is this general principle, on which some members of this committee stage have already expressed a view as to whether they actually support a period of time prior to the election where people are encouraged to vote during that period of time and not just on the election day. For this particular reason we are opposing this amendment. There are others, of course, that will come later in the committee stage.

Ayes 11

Noes 8

Majority 3

The Hon. K.J. MAHER: I move:

Amendment No 7 [Maher–1]—

Page 4, after line 10 [clause 12, after subclause (1)]—Insert:

(1a) Section 48(4)(a)—delete ‘3 days after the date fixed for the close of the rolls’ and substitute:

9 days after the date of the issue of the writ

This amendment follows on from the last amendment. What this amendment does is allow the rolls to stay open without impacting on the close of nominations. Specifically, what this amendment does is decouple the close of nominations from the closing of the roll. This amendment retains assigned time from the close of nominations but simply measures it from the issuing of the writs.

The Hon. R.I. LUCAS: My advice is the government is opposing this amendment, but we lost the earlier vote and this is consistent with the Leader of the Opposition's earlier vote so the government's position is to oppose the scheme of arrangement which is being voted on. We see this as part of that package so we oppose it but we will not be dividing.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 8 [Maher–1]—

Page 4, line 14—Delete ‘prescribed by the regulations’ and substitute:

considered appropriate by the Electoral Commissioner

This is the third in the series of amendments that allow the Electoral Commissioner to determine how to advertise elections in the various components rather than by regulation, the first one being at amendment No. 2 [Maher-1], which was definitely won in this chamber, definitely voted for, I distinctly remember. So I move the third out of four of the amendments to this area.

Amendment carried; clause as amended passed.

Clause 13.

The Hon. K.J. MAHER: I move:

Amendment No 9 [Maher–1]—

Page 4, line 19—Delete ‘prescribed by the regulations’ and substitute:

considered appropriate by the Electoral Commissioner

This is the final amendment in relation to the Electoral Commissioner determining how to advertise elections in the various components rather than by regulation.

Amendment carried; clause as amended passed.

Clauses 14 to 21 passed.

New clause 21A.

The Hon. K.J. MAHER: I move:

Amendment No 10 [Maher–1]—

Page 7, after line 20—Insert:

21A—Amendment of section 69—Entitlement to vote

Section 69—after subsection (1) insert:

(1a) A person is entitled to vote in an election for a district if the person—

(a) is entitled to be enrolled on the electoral roll for the district (whether by way of enrolment or transfer of enrolment); and

(b) after the close of rolls for the election and no later than 6 pm on polling day, makes a claim for enrolment or transfer of enrolment (as the case requires) under section 32 to the Electoral Commissioner or an officer.

(1b) If, in relation to a person claiming an entitlement to vote under subsection (1a), the district for which the person is entitled to be enrolled as an elector for the purposes of this Act is not able to be determined at the time of the making of the claim, the person is entitled to make a declaration vote for each district for which the person might be entitled to be enrolled, provided that—

(a) the Electoral Commissioner must, as soon as reasonably practicable after the making of the claim, determine the district for which the person is entitled to be enrolled as an elector; and

(b) the Electoral Commissioner must ensure that only the declaration vote in respect of that district is accepted in the counting of votes for the purposes of the election.

This relates to amendment No. 4, that is enrolments up to and including election day. This simply allows enrolment on that day by applying it as a declaration vote. That was a suggestion to give effect to the package that allows for that. I commend the amendment.

The Hon. R.I. LUCAS: The government is opposing this particular amendment. We concede it is part of an earlier package, but I place on the record the advice I have received that it does create an additional problem as part of that package, which I have not addressed before. The government is opposing this amendment to late enrolments for the reasons I have already placed on the record, but the further reason why this package of amendments creates a problem is as follows.

Enabling one elector to make multiple declaration votes creates a large administrative burden for the Electoral Commission and increases the risk of errors being made in processing these declaration votes. It would also create the need for a single elector to complete multiple Legislative Council ballot papers.

That is not an issue that I have raised before. Those who are supporting this package of amendments might need to address what the department is identifying as a potential consequence of this package of amendments. I would hope no-one is intending a single elector to have to complete multiple Legislative Council ballot papers. It is a foreboding enough task for those of us who want to vote below the line to fill out one Legislative Council ballot paper, let alone multiple Legislative Council ballot papers.

For those who are supporting this particular amendment, and for those of us obviously vested in the interest and the convenience of Legislative Council voting, you might need to apply yourselves to whether or not you agree with this advice that I have received. I am assuming it is not an intended consequence. If it is an unintended consequence, you might consider what you might like to do to repair the problem, if you agree with the advice that I have been given that there is a problem.

The Hon. R.A. SIMMS: Can I ask a question of the mover of the amendment about that and whether they have a response to that advice or issue? That is not something that I had anticipated as a consequence of the amendment. I am sure it is not the intention of the mover.

The Hon. K.J. MAHER: That is certainly not the intention of what is being moved. From memory, in discussing this it was specifically to apply to House of Assembly ballot papers. I am not sure how a declaration vote necessarily gives rise to multiple Legislative Council ballot papers, but I am surprised that it is being raised here as the amendment is being moved, and this is the first time it is being raised. Again, I only have my print-out copy rather than the filed copy date, but it is weeks, if not some months, ago that these amendments have been moved. I am surprised, if there is such a live issue, that it has not been canvassed before, as it could have been sought to be looked at.

This is something that would be surprising, given my recollection of sitting down and drafting these with parliamentary counsel. If there is a genuine live issue and one that the government has known about for some time, I can undertake to the council that we as an opposition will be very keen for the government to put submissions forward to us in between the houses and, if there is indeed an issue, sort it out.

The Hon. R.I. LUCAS: We think the way to sort it out is not to proceed with the package of amendments. It is not for us to assist the Leader of the Opposition in terms of getting his amendments right. The consequences of his amendments are his responsibility and his responsibility alone in terms of the amendments that he brings to the table. Mr Chairman, as you said, if in a majority this chamber supports them—I am not sure whether there is a solution; there may well be one—the honourable member will need to take further advice to see whether or not there is a solution to the issue that has now been identified.

New clause inserted.

Clause 22.

The Hon. K.J. MAHER: I move:

Amendment No 11 [Maher–1]—

Page 7, after line 24 [clause 22, after subclause (1)]—Insert:

(1a) Section 71—after subsection (1) insert:

(1a) However, an elector to whom section 69(1a) applies may only exercise their vote by making a declaration vote.

The amendment again relates to the making of a declaration vote, and it forms part of the package to allow enrolment up to and including the day.

The Hon. R.I. LUCAS: I indicate that the government opposes this, but we accept this is part of a lost earlier vote.

Amendment carried; clause as amended passed.

Clauses 23 to 25 passed.

Progress reported; committee to sit again.

Sitting suspended from 12:56 to 14:15.