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House of Assembly - Fifty-First Parliament, Third Session (51-3)
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ELECTORAL (MISCELLANEOUS) AMENDMENT BILL

Committee Stage

(Continued from 12 May 2009. Page 2670.)

Clause 14.

The CHAIR: When the committee last sat, the member for Heysen moved a handwritten amendment; we now have a published amendment. We agreed to that amendment. The member for Heysen indicated that she had another question on this clause.

Mrs REDMOND: I do have one more question on clause 14. You will be pleased to know that after that question I do not have any more matters until clause 19, to which I think an amendment has been filed by the member for Mitchell, so we may make some further progress.

My question relates to subsection (2) of new section 46B. Subsection (2) states that subsection (1), which is the information about the people who comprise the group who have become the registered members, if you will, of a registered political party, is to be confidential. Subsection (2) provides:

Subsection (1) does not prevent the Electoral Commissioner providing information to a prescribed person or body, or a person or body of a prescribed class...

I want to make sure that there is no possibility—without having seen any regulations—of the information falling into the wrong hands, as it were. I cannot rock up to the Electoral Commissioner and get the details of who are Labor Party registered members and the minister cannot rock up to the Electoral Commissioner and get the details of who are Democrats, for instance. I want to clarify just what is intended to be prescribed. I think we did get part way through that answer yesterday.

The Hon. M.J. ATKINSON: My recollection was the political party of whose members they were, if the party lost the records, the Government Investigations Unit and the Crown Solicitor's Office, in case of impropriety, but as far as is humanly possible we do not want any unauthorised access to the names and addresses of the people who are the 200, or 150, whichever number parliament eventually settles on, members whose subscription to the party founds its registration.

The Hon. I.F. EVANS: Attorney, is there any way that the minister of the day responsible for the act can have access to those records?

The Hon. M.J. ATKINSON: No, not unless we prescribed the minister; if we did so, I think the opposition and the minor parties would notice. Frankly, if a person wants to find out who is a member of political parties, the best thing to do is join, run for office and get the membership list under the rules.

Clause as amended passed.

Clauses 15 to 18 passed.

Clause 19.

Mr HANNA: Amendments Nos 5, 6, 7, 8, 12 and 13 are consequential, so I will no longer move them.

Clause passed.

Clause 20.

Mrs REDMOND: This clause inserts a new subsection into section 63 and provides that, if there has been a notice of intention to lodge a voting ticket for a Legislative Council election, and if the ticket is not lodged (the earlier part of the section requires that you give notice and then lodge it), the Electoral Commissioner must take reasonable steps to inform the candidate or candidates to whom the voting ticket was to relate of the failure to lodge the voting ticket. It also provides that the Electoral Commissioner need not take any other action in relation to the matter.

If that circumstance occurs—that is, they have lodged an intention to lodge a voting ticket, but they have failed to do so—and it occurs because of an oversight (for example, someone read the date wrongly), this clause is triggered and the Electoral Commissioner notifies the candidate or to whomever it related of that failure.

The new subsection does not seem to spell out that the Electoral Commissioner could, for instance, accept a late lodgment; it provides only that the Electoral Commissioner need not take any further action. I want to clarify whether, having notified, it is possible then to correct if it is an oversight.

The Hon. M.J. ATKINSON: So that every member of the committee can understand what the member for Heysen and I are talking about, I will give some explanation. There are two ways you can vote for the upper house, you can vote above the line, and put the number 1 in the box of the group above the line for which you want to vote, or you can fill in all the boxes next to every—

Mrs Redmond interjecting:

The Hon. M.J. ATKINSON: As the member for Heysen always does so do I, starting with the one I like least. Isn't it frightening that the member for Heysen and I find another thing in common? Or you can vote below the line, placing consecutive numbers against the names of every candidate for the upper house—one or the other.

We know that something like 95 per cent of people—I think it is about 95 per cent—vote above the line. They just place '1' above the line in a box next to the group they prefer. To make sense of that vote above the line, given that there will be 25, 30, 40 candidates and 11 vacancies, that above-the-line vote has to be translated into an effective vote with consecutive numbers for every candidate below the line.

The way that is done is for the group, the party, to lodge in time a voting ticket which allocates preferences for the vote above the line. Every vote above the line is deemed to follow the preferences for each candidate below the line as nominated to the Electoral Commissioner by the group. If a party or a group gets a berth above the line and says, 'We want our name above the line and a box next to it,' and then fails to lodge a voting ticket, the consequence is that all those above-the-line votes are informal, because—

Mrs Redmond: They haven't got a ticket.

The Hon. M.J. ATKINSON: They haven't got a ticket, as the member for Heysen interjects, and she is right. This provision is designed to say that, should that catastrophe happen to a party or a group, it is not the Electoral Commissioner's fault. Sure, the Electoral Commissioner might like to give them a phone call and say, 'Well, there's only a couple of hours to go until the time for lodging your voting ticket is up. Would you like to lodge a voting ticket?' But if the Electoral Commissioner fails to raise them and they do not lodge a ticket, all the above-the-line votes are informal. That is a catastrophic consequence for that party. Could you imagine if the Australian Labor Party failed to lodge a voting ticket, or the Liberal Party failed to lodge a voting ticket?

Mr Goldsworthy: These are nightmares.

The Hon. M.J. ATKINSON: These are nightmares.

The Hon. P.L. White: Or candidates forgot to nominate.

The Hon. M.J. ATKINSON: Or candidates forgot to nominate, the member for Taylor adds, and, of course, that has happened. Quiz question: what is the seat—

Members interjecting:

The Hon. M.J. ATKINSON: The health minister, wasn't it, who failed to nominate for his North Shore seat—the DLP elected as a consequence.

The Hon. G.M. Gunn: The DLP won the seat.

The Hon. M.J. ATKINSON: The DLP won the seat. Mr Harrold, I think, rings a bell as the name of the member. An Australian situation comedy was based on it called House Rules starring Jackie Weaver, I think. Anyway, be that as it may, my view is: shoot one, educate a thousand. If a party registered officer forgets to lodge a voting ticket and all the party's upper house above-the-line votes are lost, bet you no-one ever does it again, that is, fails to lodge a ticket. All this is doing is protecting the Electoral Commissioner and saying, 'Well, the Electoral Commissioner may contact the registered officer and remind them of their obligations, but, having done that, there is no further liability.' One saving provision here is that, if a voter votes above the line, the vote can be saved by the voter also voting below the line formally.

Mrs REDMOND: I thank the Attorney for his explanation. My difficulty is that the clause provides: (a) a notice of intention to lodge a voting ticket has been given; but (b) a voting ticket is not then lodged in accordance with the requirements of subsection (2)(b). It seems to me that what we are talking about here is that what follows must of itself occur after there has already been the failure; the time limit has already expired.

Whilst I appreciate that our Electoral Commissioner is very likely to do the right thing and let people know that they only have a couple of hours to do this, if one reads the section that it refers to—and that is notice of intention is given and a voting ticket is not then lodged in accordance with (2)(b)—one will see that it is only triggered at the point where there has been the failure to lodge. My question is: why at that point, after the failure has already occurred—which, according to the Attorney's explanation, cannot then be corrected—would the Electoral Commissioner then notify people?

The Hon. M.J. ATKINSON: In the situation that the member for Heysen canvasses, the Electoral Commissioner would ring the registered officer of the party and inform them of the catastrophe. However, our intention is that the Electoral Commissioner might do that as the deadline approaches and no voting ticket is there, just to be generous.

Mrs REDMOND: Again, I thank the Attorney, and I understand the good intentions of the Electoral Commissioner in doing that. However, the section seems to only be triggered once the failure has occurred to lodge by the time. Therefore, what is the point of the section? I do not understand why we have a section that says, 'You have given notice that you intend to lodge a voting ticket and you failed to lodge the voting ticket within the time required under the act,' and the Electoral Commissioner can then notify the candidate of that failure. I do not understand why that provision is there, because it does not seem to have any purpose.

The Hon. M.J. ATKINSON: The intention of the provision is courtesy and for the Electoral Commissioner to tell them the bad news. It would be a pity if they continued on with a general election campaign with the false hope that a vote above the line for their ticket was going to be counted, because it is not.

Clause passed.

Clause 21.

Mrs REDMOND: The current section provides that a polling booth is to be properly established and that each polling booth must have certain things. Subsection (2) provides that no premises licensed for the sale of liquor may be used as a polling booth. What this section does is add, 'except if the pubs close down', or whatever provision it is. I take it therefore that there must be towns in the state where the only appropriate place to conduct a polling booth consists of the local licensed premises.

The Hon. M.J. ATKINSON: Yes, that is correct.

Clause passed.

Clause 22.

Mr HANNA: I move:

Page 15, line 3 [clause 22, inserted section 66(5)]—After 'in a prominent position' insert:

in each compartment in which a person may vote

I feel strongly about this. This clause in the bill deals with electoral material that is prepared for use in polling booths on polling day. I do not have any problem with the requirements for the actual material. It is what one would expect—a list of candidates and so on—but I particularly noticed the new proposed clause 66(5), which says that the presiding officer at each polling booth must cause the displays, etc., to be placed in a prominent position in the polling booth.

The problem I have with that is that I think it is essential that the material is placed in each compartment. Some voters who go in will have grabbed a handful of how-to-vote cards, some would not have, but they go into the booth and have their name marked off. Most then go straight into a compartment and, as quickly as possible, do their duty. It seems to me that a lot of people expect—and they should be entitled to expect—that the electoral material that they need will be up on the wall of the compartment in which they actually cast their vote.

I do not think it is good enough for it to be up on the wall somewhere else or up on a set of boxes or on some sort of display in the middle of the polling booth area. I think it should be within each compartment, so that people who have not clearly thought through what they are going to do should at least have the list of candidates for the upper house and for the lower house and the other material that is specified in the section.

The Hon. M.J. ATKINSON: The member for Mitchell makes the mistake of thinking that the public of South Australia is as interested in politics as he is and we are. They are not. I think many South Australians going into voting compartments during our state general election are somewhat surprised by the number of upper house preference distributions that leap out at them from every voting compartment.

The sheet containing this information is so large that it goes around the three sides of the voting compartment. In fact, there are so many candidates and so many tickets that it has to be an enormous document that no well-adjusted person would read from start to finish. No, not even the member for Heysen and I are so interested that we tarry in the voting compartment to read the lot. It is specialist knowledge, and only a small proportion of the number of people who come to vote are interested in it.

Nevertheless, it is important that that information is available to them. It does not need to go in every voting compartment, but it needs to be available in a prominent place in the booth, so that those people like the member for Mitchell, who want to see where the 35th preference of the Save Babe group goes, can consult a booklet hanging up in a prominent location in the booth. To plaster it across the three sides of every voting compartment is overkill.

Mrs REDMOND: I actually think that there is some merit in the position being put by the member for Mitchell because, in spite of the Attorney-General's protestations about the amount of material, it has been obvious to me at any number of elections that it would have been simpler for everyone and would have saved on an enormous amount of printing if, rather than handing out how-to-vote cards, each of three or four people could have had their how-to-vote card inside each compartment. That would have saved the chopping down of forests in terms of the number of how-to-vote cards handed out outside. There is an enormous variety, I accept.

I remember seeing a cartoon about a federal election, where the number of Senate candidates was so long that it was basically a roll of toilet paper rolling out beyond the premises altogether. It was the sort of election where it was going to take the Attorney and I a long time to complete our vote, given, first of all, that we had to locate the person we hate the most, and count backwards and then check that we filled in all the numbers. For most elections, in most communities, most people would prefer to have just the various options up in front of them and be able to follow them; so, I think there is considerable merit in the position put by the member for Mitchell.

The Hon. M.J. ATKINSON: My understanding of this is that it is not a question, as the member for Heysen thinks, of copying down the numbers on the sheet displayed in each voting compartment. On the contrary, the sheet is up there to tell people what is the consequence of putting the number 1 in the box next to the group. In fact, the whole idea is to save them filling out the whole ballot paper.

What the sheet is there for is to tell them where their preferences will go below the line should they subcontract their vote to the group by putting the number 1 above the line in the group's box. It is not as the member for Heysen thinks.

The second thing to say is that the idea that handing out how-to-vote cards at polling booths leads to a gross waste of paper and to the cutting down of forests is not true. If one collects all the literature one receives in the course of a federal or state general election campaign and puts it in a cardboard box and then weighs it against one day's junk mail from commercial sources, one will find that one day's commercial junk mail outweighs everything sent in the campaign period. We are not demolishers of forests, as politicians. A great deal of pulp and paper is not wasted at polling booths.

I was doorknocking before I came to the house yesterday. I was doorknocking in the morning; in fact, I got caught in the rain. However, I was doorknocking several people who had a very limited command of English, and yet, with just a few words, I managed to make it plain why I was there, and they managed, I think, to understand. 'No speak English', 'Srpski', 'αριθ' and 'да' (da), and, so, we found our way there.

Clearly, those people—and I know this to be so—whether they are Vietnamese, Cambodian, Chinese, Greek or Srpski, will feel a lot more secure in casting their vote if there is a volunteer from their preferred political party at the booth together with a how-to-vote card for that party, which the voter can take with himself or herself into the booth. Putting up the party how-to-vote cards in the compartment is no substitute for personal service, especially if that personal service includes a how-to-vote card in the language of the voter. I think the member for Heysen brings Hills Anglophile assumptions to this debate which are not shared by multicultural inner suburban electorates.

Mr HANNA: The first point I want to make is about the Attorney's suggestion that I somehow think the electorate is as interested as I am or as other political practitioners are at election time. We all know that that is not the case, but it is precisely because a lot of people do not think much about politics and do not want to think much about elections that it is essential to have the how-to-vote tickets in the voting compartment. A lot of people refuse the how-to-vote tickets offered to them outside. I think some refuse them because they do not want to be seen to be partisan, even though they might not know anybody in the immediate vicinity. They do not want to be seen to show preference because it is, after all, a secret ballot. That is why we see some people take all of the how-to-vote tickets, and others take none.

At any rate, the current practice is that people expect to find those how-to-vote tickets in the compartment. I remind members that the current law is that each polling booth must have a poster representing the House of Assembly and the Legislative Council voting tickets. At least in relation to the how-to-vote cards submitted by the candidates in the election, they must be displayed in each voting compartment. That is the current law. Really, what I am doing is amending the government's amendment to try to keep the current position.

The Attorney-General deals with the easy argument here, but not the hard argument. The easy argument is in relation to the Legislative Council ticket. I appreciate that there is a practical difficulty in having something that is as big as a tablecloth nailed onto the inside of a voting compartment; however, in relation to the House of Assembly voting ticket, I think it is essential for the reasons that I have suggested. A lot of people expect it there and they rely on it. After all, whatever the parties have handed them—which may or may not be entirely accurate or easy to understand—at least in the voting compartment they have something official to go by. So, it is essential that that aid to accurate voting remains.

The Hon. M.J. ATKINSON: It is important that I correct myself here. The voting ticket for the upper house is not currently in every compartment. The member for Mitchell is right and I am wrong—it is outside the compartment. So, that is not the issue. I was wrong to say that that was the issue: it is not the issue. What is the issue is the how-to-vote cards for the House of Assembly being in every voting compartment. So, I apologise to the member for Mitchell. I think most people are sufficiently interested in politics that they would be willing to look at the how-to-vote card for the assembly district in which they live in the voting compartment.

I am advised by the Electoral Commissioner that, given the number of candidates in some House of Assembly seats, the poster becomes unwieldy and the print has to be shrunk to fit them all in to the voting compartment. Therefore, the best thing is to have them outside in a prominent place. I am willing to consider the member for Mitchell's amendment between the houses and to give some consideration to it, because I have heard some support from my valued colleague the member for Torrens, who is in favour of retaining the how-to-vote cards for the assembly in the compartment. We will argue this out between the houses. That is the best concession I can make for the member for Mitchell. I apologise for getting off on the wrong foot in that debate. The upper house voting ticket sheets, which are much bigger, will remain outside the voting compartment.

Mr HANNA: The Attorney-General has brought into the debate the view of the Electoral Commissioner. Of course, I respect the Electoral Commissioner and whatever point of view she might have. But I want to make the distinction between an opinion about the practicalities of putting in a certain sized sheet into the compartment and the policy issue of whether it is important for the voters to have that degree of information because of their level of interest, their level of knowledge and their level of capacity.

I think we make that decision as parliamentarians and, if we say that voters should have access to that information as they go into the compartment to vote, then I suppose it is simply for the Electoral Commissioner to somehow make it work. While we take the views about practicalities into account, that is a really important policy decision based on our knowledge of our electorates. I just want to make that point because I do not want to diminish the point of view put by the Electoral Commissioner. I seek to put that into perspective against the fundamental democratic question that is involved.

I thank the Attorney for the concession that he has made. I am also willing to make the concession that the way my amendment is drafted, even though it is mine and I take responsibility for it, it could also be better expressed perhaps to make it clear that I am not so concerned about the Legislative Council ticket but I am very concerned about the House of Assembly ticket being displayed in the actual compartment.

The Hon. M.J. ATKINSON: Since the debate on this bill is a saga, I think there will be an opportunity to set up a cardboard voting compartment and have a look at some of the bigger how-to-vote card sheets from the last general election and each member can make a judgment about whether or not the sheet is helpful or unwieldy.

Amendment negatived.

Mrs REDMOND: I have a question on clause 22 before we put it to the vote. It relates to the very beginning of the clause, which deals with section 66 on the preparation of electoral material. I ask the question purely on the matter of the semantics. Subsection (1) provides:

The Electoral Commissioner must have the following electoral material prepared for use in polling booths on polling day:

When I read that I thought: why is the Electoral Commissioner having to prepare this material? I want to confirm that, in fact, the sense in which the word 'prepared' is being used there is that the Electoral Commissioner's obligation is to have that material 'available'.

The Hon. M.J. ATKINSON: The publication is the Electoral Commissioner's; the component material is supplied by the parties and the candidates; but it is put together in its final form by the Electoral Commissioner, so it may truly be said that she prepares it.

Clause passed.

Clauses 23 and 24 passed.

Clause 25.

Mr HANNA: I think this is the right place to ask the question. It relates to postal votes. The Attorney-General would no doubt have noticed that there are an increasing number of electors choosing to vote before the general polling date.

The Hon. M.J. Atkinson: Pre-polling.

Mr HANNA: Pre-polling. It seems to me that there are an increasing number of people who are doing so simply as a matter of slight convenience rather than having a profound reason, such as a disability or some employment which lasts through the entire period of voting on the actual day of the general election. Has any thought been given to tightening the requirements so that we actually have the original intent of the pre-poll provisions being carried out?

The Hon. M.J. ATKINSON: I think the government and the commissioner are happy to have the maximum number of people turn out, and if pre-polling means that they fulfil their obligation and do not forget it on the day then that is a good thing. I suppose those who vote pre-poll miss all the excitement of the dying days of the campaign, because there is no longer any opportunity to convert or sway them.

Mrs Redmond interjecting:

The Hon. M.J. ATKINSON: As the member for Heysen says, we do not think that they will be distressed by that. For myself, I love polling day. I think it is a marvellous festival of democracy that people come out on one day, go to a public institution and cast, with a blunt pencil, their vote. Many churches and voluntary organisations use the opportunity to have a sausage sizzle or a jumble sale.

Mrs Redmond: Prospect Hill is the place to go.

The Hon. M.J. ATKINSON: Prospect Hill is the place to go. Where is that?

Mrs Redmond: Well beyond Meadows.

The Hon. M.J. ATKINSON: Beyond Meadows.

Mr Hanna: Settled by my ancestors, the Harveys.

The Hon. M.J. ATKINSON: Prospect Hill was settled by the Harveys, I am told. It is a chance to meet one's neighbours, and to have a slanging match with them, if you are working for different candidates on a polling booth.

Mrs Redmond interjecting:

The Hon. M.J. ATKINSON: Well, we also provide sustenance to stray Liberals who find their way into the Croydon electorate to hand out how-to-vote cards. I know that the President of the upper house used to travel from Naracoorte to Bool Lagoon booth to cast his vote, because he knew that it would be one of a few, if the only, Labor vote cast in that booth, and the hamlet of Bool Lagoon would spend the next year conducting a search to find out who it was who had voted for the Australian Labor Party.

The member for Mitchell is right that voting pre-poll does somewhat detract from the festival of democracy on the Saturday, but I am not prepared to take legislative measures to arrest the development.

Clause passed.

New clause 25A.

Mr HANNA: I move:

Page 16, after line 14—After clause 25 insert:

25A—Amendment of section 76—Method of voting at elections

Section 76(1)(a)—Delete 'all candidates' and substitute: not less than 11 candidates.

The proposal I bring is to allow a kind of optional preferential voting for the upper house. The Attorney-General, in the course of debate today, has already talked about the black and white option between numbering every box below the line in the Legislative Council ballot, or numbering one box above the line. As the Attorney-General said, the numbering of one box above the line subcontracts the power to give preferences to the party concerned.

There is something terribly undemocratic about that. Of course, it is people's choice to give up their power, but I do not think that it is something to be encouraged anywhere near as much as it is currently practised. It seems to me that the power can be diverted away from the political parties, which love to wheel and deal the upper house preferences, back to the voters in a way that makes it easy and convenient for them to express their preferences.

So, what I am suggesting is that where there are 11 candidates to be elected in the upper house, as is our current system, the voter in my proposal would have to number 11 boxes above the line, and those votes would run down the list for the various groups that had been marked, and votes would be exhausted after that if people did not continue to vote after those 11 numbers.

However, it would make very clear that somebody could vote Greens first, One Nation second, Family First third, Liberal fourth, Independent fifth, Labor sixth or in any kind of unlikely combination if they chose to, rather than the current options, which are either to vote laboriously below the line, with all the likelihood of mistakes that goes with that, or above the line and allow the party to determine that person's preferences.

The Hon. M.J. ATKINSON: It is the maths, dear boy, the maths. I gave this amendment a great deal of thought, and so did my advisers. Amendments Nos 10 and 11 introduce a form of partial optional preferential voting in upper house elections, and I suggest that amendment No. 10 be treated as the test amendment.

The government opposes these amendments. Amendment No. 10 amends section 76(1), which sets out how a voter must mark a Legislative Council ballot paper. This amendment will mean that an elector voting non-ticket need number only the boxes 1 to 11 on the ballot paper, the number of vacancies at each election, but will not have to number all the boxes as now.

The Electoral Commissioner advises that the member for Mitchell's amendment will cause this difficulty, and I am sure that he is not in the least concerned by this difficulty, but I will outline why we see it as a difficulty. Where ballot papers are not fully preferential in an election under proportional representation, those ballot papers that have no next preference on them, when allocated after a candidate is elected or excluded, will not be available for distribution to any other candidate. This is known as exhausting: the preferences have exhausted.

Under the system proposed by the member for Mitchell, some of the candidates elected late in the count will almost certainly be below the quota that was required for those elected early in the count. For example, an elector votes 1 to 11 for the least popular candidates or groups. As each candidate is excluded from the count, the ballot paper is then distributed to the next preference. This continues as each of the candidates is excluded and, when it gets to the number 12, where the numbers will not continue, it exhausts, goes to nobody and is no longer in the count.

The commissioner believes that this could happen with a significant number of ballot papers because, while although only 5 per cent vote below the line now, this number may increase if electors need number only the first 11 boxes. I am sure that is the member for Mitchell's intention, and he would regard it as a virtue.

If this were to occur, there would not be 900,000 ballot papers remaining in the count (as occurs now) to elect candidates filling the last two or three vacancies; rather, these would be elected with substantially fewer ballot papers. An example is the Barossa Council election in 2006. This method, under the Local Government Elections Act, saw the 13 elected candidates failing to reach the designated quota but elected on the basis that they had the higher number of votes of the remaining candidates.

Similarly, Victor Harbor council had four of 10 elected without receiving the required quota. The others elected up to that point did. We think that it introduces inequality between the elected candidates. We think that it may be used as a misguided argument to de-legitimise the election and those elected late in the count; and, given that effect on the quota system, the government opposes the amendment.

Mr HANNA: I appreciate that thoughtful and considered response. It seems to me that nonetheless there is a democratic answer to those ballot papers which are exhausted. I admit, it is a problem that there could be a person who votes for the 11 most unpopular candidates and ends up with their ballot paper counting for nothing, effectively. However, there is a democratic answer to that, because that person has chosen to vote for people whom no-one else wants. I am paraphrasing, but if that is the case, there is no great injury to democracy if none of that person's candidates get elected.

It does make it more difficult for the surprise Independent or minor party candidate to be elected on less than 3 per cent of the vote, I suppose, because it might be harder for preferences at the end of the spectrum, away from major parties, to follow through to what I call the surprise candidate—someone who, in the whole scheme of things, would have expected to get only 2 or 3 per cent of the vote. Nonetheless, I think that the virtue in encouraging people to vote below the line and allocate their own preferences is the principle here which I am pushing. I think that the value gained, in democratic terms in people being able to allocate their own preferences, is greater than the shortcoming to which the Attorney-General has referred.

The Hon. M.J. ATKINSON: Notwithstanding the member for Mitchell's arguments—and I do not think his proposal is a great injury to democracy, but we disagree on this. My recollection is that candidates have been elected under proportional representation to the upper house who have simultaneously lost their deposit and been elected because their primary vote was so low that they got their quota on preferences. Just for myself, I would not want to see the vote exhaust of those people who vote for savebabe.com, Ralph Clarke Buy Back ETSA and Mick Samco (Independent). That is where I differ from the member for Mitchell. However, he says that if they want their vote to exhaust, vote for the 11 least popular candidates.

New clause negatived.

Clauses 26 to 28 passed.

Clause 29.

Mrs REDMOND: This is a relatively straightforward question. This provision deals with compulsory voting. The amendment itself seems to be just a technical amendment, if you will, changing the current wording from 'at the foot of the notice' to 'in the indicated place' in the notice, that is, where you give your response as to why you did not vote. Have there ever been any prosecutions in this state pursuant to this section for failure to vote?

The Hon. M.J. ATKINSON: I am told that about 8,000 infringement notices go out and that some people who do not pay end up having a prohibition order put on them for dealing with motor registration and suffer the consequences of that until such time as they pay through the nose (as a former attorney-general once advertised), and that some of those elect to be prosecuted. But I must say I cannot remember reports in The Advertiser of celebrated cases of people going to the Magistrates Court and saying that they are willing to go to gaol for the right not to vote. There used to be those kinds of stories in The 'Tiser in the 1970s; I just cannot recall any lately.

Clause passed.


[Sitting extended beyond 17:00 on motion of Hon. M.J. Atkinson]


Clauses 30 to 32 passed.

Clause 33.

Mrs REDMOND: I have a question, which I suppose is consequential to the matters I was asking about earlier. The main provision of clause 33(1) appears in an earlier clause: to extend the definition of 'ballot box' to include another secured facility that can be used as a ballot box. However, new subsection (4a) inserts a provision that states that if there has been a notice of intention to lodge a ticket for the Legislative Council but there has not been a ticket so lodged, and then a ballot paper for the election contains a voting square on the basis that there was going to be one lodged and someone votes using that, the ballot paper is informal unless subsection (4) of section 92 applies. Subsection (4) of section 92—

The Hon. M.J. Atkinson: You've voted below the line.

Mrs REDMOND: —basically—or subsection (6) of this section applies. It sounds as though it is actually allowing the validity of such a vote. Earlier, we seem to have said, 'Well, it's tough,' but now we are saying, 'But, nevertheless, if it's gone out as printed and you've got the box up there and you put your vote into the square, then you can have your vote after all.'

The Hon. M.J. ATKINSON: Excellent question, and my curiosity was shared.

Mrs Redmond: Piqued.

The Hon. M.J. ATKINSON: My curiosity was piqued, and now it has been sated. The answer is that the first way to overcome the lack of a voting ticket is to vote formally below the line. The second way to get around it is that the intention is clear, but we do not know of a situation where that has arisen yet, and we are not sure how you would do that other than voting formally below the line.

So, it may be that the second branch does not have any work to do unless the member for Heysen and I and the committee can think of some way, without there being a voting ticket, that a voter placing '1' in the box above the line can somehow remedy the defect by making his or her intention clear. I do not know.

Clause passed.

Clause 34 passed.

Clause 35.

Mrs REDMOND: My question really relates just to the heading because it always worries me when I see things about computer programs and elections. As primitive as our system might be—as the Attorney-General says a blunt pencil, although I find them usually quite sharp—with our little cardboard boxes, our bits of paper and our pencils, it seems to be a very good way of running an election. Mind you, in India, where the election has to run for weeks because of the number of people who are voting, I am not sure that it would necessarily be the way to go.

However, I am just worried about the idea that we would be using computer programs in any way in relation to the casting of ballots (à la hanging chads, as the member for Newland just remarked as he went by.) Two things concern me about computer programs: one is the possibility of using them for actually voting and the other is the possibility of using them for counting votes. I seek some assurance that we are not headed down that fateful path.

The Hon. M.J. ATKINSON: I share the worry of the member for Heysen, and I am assured that we are not going down that path. While I am Attorney-General, we will not go down that path.

Mrs Redmond: And nor when I am attorney-general.

Mr Hanna: You two have so much in common!

The CHAIR: Nor when I am attorney-general. We are all assured that we will not have hanging chads.

Clause passed.

Clause 36 passed.

Clause 37.

Mrs REDMOND: Clause 37 amends section 107 of the existing legislation, and I will just turn to that. In essence, section 107 provides:

A court is empowered to make an order that a person found by a court not to have been duly elected is to cease to be a member of either house; or a person found by the court to have been duly elected but not returned as elected—

and so on. It goes on with a number of things. This clause adds two new subsections to that provision about the powers of the court. The two provisions are: that an election may be declared void on the ground of misleading advertising, but only if the court of disputed returns is satisfied on the balance of probabilities that the result of the election was affected by that advertising. My first question relates to that provision. What I seek to understand is how a court can be satisfied, on the balance of probabilities, about what may or may not have eventuated, depending on advertising.

The Hon. M.J. ATKINSON: It is a matter of evidence. We trust our courts to make these calculations.

Mrs REDMOND: My other concern about it is that, although 'advertising' is a relatively all-encompassing term, I wonder whether there is the potential for an election going off the rails because of, for instance, biased reporting, or some other such thing. So, if there was to be a media campaign, for instance—which is not strictly advertising but which could heavily affect the outcome—can that come within the concept of what we are aiming to deal with under this clause?

The Hon. M.J. ATKINSON: That is a very good question. Let us say for argument's sake that Today Tonight decided to launch a jihad against a particular candidate in the election. Let's say it was the member for Heysen, because of her failure to promise to release Henry Keogh from gaol upon her becoming attorney-general.

Mrs REDMOND: I have made no such promise.

The Hon. M.J. ATKINSON: I know that you have not made such a promise, and it is very much to your credit.

Mrs Redmond interjecting:

The Hon. M.J. ATKINSON: The member for Heysen says that she would like to introduce a second truck to go alongside the 'free Henry Keogh truck' saying, 'Why release him? He did it.' In which case, she differs very strongly from her predecessor as shadow attorney-general, who I think more or less has made such a promise; but he will never be attorney-general again, so that will not happen. Let us say that Graham Archer of Today Tonight launched a jihad against the member for Heysen on the grounds—

Mr Hanna interjecting:

The Hon. M.J. ATKINSON: I am sorry. I used 'jihad' figuratively. Let's say a campaign.

The Hon. G.M. Gunn: He's a nasty piece of work.

The Hon. M.J. ATKINSON: The member for Stuart interjects that Mr Archer is a nasty piece of work. Well, I will just leave it at that. Let's say Mr Archer of Today Tonight launches a campaign against a sitting member. Let's say it is the member for Heysen. He runs a series of programs denouncing the member for Heysen for her failure to comply with his menacing demands about Henry Keogh. She resists on principle and sticks to her principles.

Mrs Redmond: As I would do.

The Hon. M.J. ATKINSON: As she would, she interjects. She loses her seat as a result. After the general election, it is established that the items on Today Tonight are entirely false.

Mrs Redmond: Unfairly prejudicial.

The Hon. M.J. ATKINSON: Unfairly prejudicial. Can the defeated member for Heysen go to the Court of Disputed Returns and have the election result set aside on the grounds that she was defamed and that Mr Archer's contribution was advertising? My advice is that is a possibility, and it is especially a possibility with what is essentially an advertising supplementary program. But I think it is possible that a court would regard such a campaign, while masquerading as editorial, as advertising, and that could be used—

Mrs Redmond: You could get advertising masked as editorial.

The Hon. M.J. ATKINSON: I am sorry. Did I say—

Mrs Redmond interjecting:

The Hon. M.J. ATKINSON: Yes.

Mrs Redmond: It's just that it's the reverse of the usual.

The Hon. M.J. ATKINSON: No, it is not the reverse of the usual. It is editorial content which is, in fact, advertising and designed to put the member for Heysen out of her seat because she would not comply. I think that is a possibility; I hope it is a possibility, but it would be for the courts to interpret.

Mrs REDMOND: I have another question on clause 37; in fact, it might be a couple of questions. I thank the Attorney for his answer and I trust that, when he says he hopes it is a possibility, he is talking about the possibility of the editorial being found to be advertising, not the possibility of my being thrown out of my seat.

The Hon. M.J. ATKINSON: I assure the member for Heysen that I would accompany her to court and offer my services to try to have her restored to her office.

Mrs REDMOND: I just want to get some clarity about subsection (6) in section 107 which provides that an election may be declared void on the ground of a breach of sections 109, 110 or 111. Section 109 deals with bribery; section 110 deals with undue influence and section 111 deals with interference with political liberty. On those grounds, elections can be declared void. The provision is as follows:

An election may be declared void on the ground of a breach of section 109, 110 or 111 in accordance with the following provisions:

There are two separate circumstances. The first is as follows:

if the Court of Disputed Returns finds, either on the basis of a conviction or on the balance of probabilities, that the successful candidate, or a person acting on behalf of the successful candidate with the successful candidate's knowledge, has committed such a breach, then the Court may declare the election to be void whether or not it is satisfied that the result of the election was affected by the breach;

Even if there is no conviction of the candidate for breaching the provisions of sections 109, 110 or 111, if the court decides on the balance of probabilities that the candidate either did it or the candidate knew it and endorsed it happening, then regardless of whether they think it affected anything, they can declare the election invalid. I want to clarify that that is correct.

The Hon. M.J. ATKINSON: The answer is yes, and the public policy behind this is that such conduct is so reprehensible that it should lead to the setting aside of the election, even if the conduct by itself did not affect the result. I think this is a customary distinction made in electoral law even before the current version of the Electoral Act.

Mrs REDMOND: Last, I want to confirm that the section goes on to say that even where a breach of those sections—the bribery, the undue influence and the interference with political liberty—was committed by someone else without the candidate's knowledge, the court can still decide that the election is void, but in that case they have to first decide that the result of the election was affected by the breach.

The Hon. M.J. ATKINSON: The member for Heysen is correct in her interpretation. Was there a question in there somewhere?

Mrs REDMOND: The questions that flows from that is, is it not then possible that a Machiavellian person could act in a way which might lead people to think that they are associated with a candidate when the candidate is completely innocent of anything? The candidate knows nothing, but some person actually sabotages that candidate's election by doing these things, without the candidate's knowledge, and provided that they have done enough mischief then the court can declare the election void.

The Hon. M.J. ATKINSON: Yes, that is a possibility but, of course, it would be perverting the course of justice.

Clause passed.

Clause 38.

Mrs REDMOND: I have one question, and it relates more to my lack of knowledge of computers than anything else. Clause 38 is dealing with publication of electoral material, electoral advertisements, and it provides for adding after 'in printed form' the words 'or through electronic publication on the internet.' I wonder to what extent any of this can be controlled, in reality, given that my limited understanding of the internet means that things can be sent via overseas back through various states and so on. To what extent is the publication of anything on the internet able to be controlled under this provision?

The Hon. M.J. ATKINSON: We are trying to legislate to the limit of our capacity, but if the person is beyond our jurisdiction and not amenable to the authorities of South Australia then there is not much that we can do about that.

Clause passed.

Clause 39.

Mr HANNA: I am particularly interested in the provisions which the Attorney-General wants to bring in which place limits on electoral ads and how-to-vote cards. I refer to the limits in the proposed new section 112B. This is in the context of where we already have a section 112 of the Electoral Act, which severely proscribes certain types of advertising.

The proposal by the government particularly bans reference to the name of the political party of different candidates in other people's how-to-vote tickets. I wonder why that would be. On the face of it, I cannot see a problem if I want to put out a how-to-vote ticket that says, 'Vote Hanna, Independent; Smith for Labor; Jones for Liberal; and someone for someone else,' and specifies the party. I cannot see any wrong in that, so I wonder why it would be banned, if I am reading the proposal correctly.

The Hon. M.J. ATKINSON: That is certainly not the intention. The intention of this clause is to stop political passing off.

Mr HANNA: I support that, as it is a dreadful thing, and I am sure that we are all agreed about that. If I put out something that looks very much like a Labor how-to-vote ticket and it actually switches the vote from someone else to Hanna the Independent, that is outrageous, it is wrong and it is a kind of electoral fraud. So, I completely agree that should be done.

However, I ask the Attorney-General to reconsider the way this clause is worded because I do not see any problem with what I suggested before, yet the way it is worded currently—that is, a person must not publish or distribute a how-to-vote card 'by reference to the registered name of a registered political party'—means that I cannot say, 'Put my name ahead of Bill Smith for Labor.' I think that is outrageously heavy-handed.

There is another problem, based on a real life example. My voting ticket at the last election had at the top of it, 'If you want to vote Hanna then Labor, vote this way; if you want to vote Hanna then Liberal, vote this way.' In a sense, I split the ticket but, of course, left it entirely for the voter to make up their own mind. That would be banned under this proposal, and I think that is utterly wrong. You have to be able to refer to political parties if you are to have a split ticket like that.

The Hon. M.J. ATKINSON: That is not the aim, and we will look at it between the houses to see whether the effect for which the member for Mitchell argues is really the effect. It is not a mischief so far as I am concerned. It is not a problem. Of course, you should be able to do what the member for Mitchell says his how-to-vote card did at the last general election, and there is no way I am going to punish or prevent it.

New section 112B states 'unless the candidate is endorsed by the relevant parliamentary party or registered political party (as the case may be)'. At the last election, in the member for Mitchell's state district, Rosemary Clancy was in fact the endorsed Labor candidate, and I think Jack Gaffey was indeed the endorsed Liberal candidate. So, the member for Mitchell putting out how-to-vote cards that said, 'If you want to give preference to Labor, follow this panel; if you want to give your preference to Liberal, follow this panel,' would be entirely in order under new section 112B as it is currently drafted. I do not see the problem.

Mr HANNA: I take the Attorney's point, but it seems to me that, if the mischief you are after is 'passing off', as he describes it, an element of dishonesty should be built into the section, rather than simply having a reference to the name of the party. New section 112B provides that a person must not publish or distribute a how-to-vote card, etc., that identifies a candidate by reference to political party unless the candidate is endorsed. That is fine. I just want to confirm then that there is nothing to stop me or any other party having a split ticket, which says 'If you want to vote Hanna then Labor, do this', or 'If you want to vote Hanna then Liberal, do that'.

The Hon. M.J. ATKINSON: This amendment and the Electoral Act generally are not preventing the member for Mitchell putting out a how-to-vote card, such as the one he put out at the last general election.

Mrs REDMOND: Madam Chair, I am a little lost. I know that we are on clause 39, but I am not sure whether the member for Mitchell's amendments to clause 39—

The CHAIR: The member for Mitchell indicated that he was not proceeding with his amendments Nos 12 and 13.

Mrs REDMOND: Thank you. I have a couple of questions in relation to clause 39. The first relates to the new section 112A, which provides that a person must not distribute a how-to-vote card unless it has the authorisation on it. There is a maximum penalty of $5,000. Assuming there is a how-to-vote card that some mischievous person wants to publish, it seems to me there are two thing they could do: either they could engage Salmat or Australia Post to have it distributed in an area; or the other thing is that they could have the army of volunteers that the member for Croydon has simply to letterbox the area. How does the Electoral Commissioner find out who published it? If someone just prints something and it does not say on it who printed it and it does not say who authorised it—

The Hon. M.J. Atkinson: It is unlawful.

Mrs REDMOND: I appreciate that it is unlawful. What I want to know is: how is its unlawfulness enforced?

The Hon. M.J. ATKINSON: In the same way as in the federal division of Lindsay where the local Liberal Party conspirators connected to the former member Jackie Kelly were busted distributing an entirely fraudulent how-to-vote card saying that Islamic extremists wanted the people of Lindsay to vote for the Australian Labor Party because the Australian Labor Party was better for Islamic extremism.

Mrs Redmond: It was a brochure rather than a how-to-vote card.

The Hon. M.J. ATKINSON: It was a brochure rather than a how-to-vote card. I can see the defence lawyer coming out in the member for Heysen. What happened was that their factional enemies in the Liberal Party were out at night videotaping them doing it. So, bully for their factional enemies. Yes, lots of people get away with putting out what I am afraid to say in the Labor Party we call 'cheat sheets'—unauthorised material—and sometimes people get away with it, other times they get caught.

The Hon. G.M. Gunn: You wouldn't get away with it in Stuart with my team.

The Hon. M.J. ATKINSON: The member for Stuart interjects that his comprehensive network of spies and informers in Stuart would not allow such a thing to happen, and maybe that is so. That is why it is regarded as unlawful to put out electoral material that is not attributed to a real person at a real address. I may as well foreshadow a change I have made in this bill, or I certainly intend to make, to stop one of the greatest abuses—

The Hon. I.F. Evans interjecting:

The Hon. M.J. ATKINSON: You do not know what I am going to say, member for Davenport.

The Hon. I.F. Evans interjecting:

The Hon. M.J. ATKINSON: No. The member for Davenport puts himself in the dock, and I was not even thinking of that particular abuse. I had not even got that close to that. I was thinking of the more modern abuse, and that is the kind of cyber rage that goes on in the blogs on the web—the kind of cyber rage that goes on, for instance, in the commentary that one is allowed to post online on the Adelaidenow site for Advertiser stories. It is a sewer—a cesspit—of criminal defamation and fraud. For instance, there is a person who purports to put their name on a commentary on our declaration of the Finks Motorcycle Club today on the Adelaidenow website. They put a name and say 'of Croydon'. A quick reference to the electoral roll revealed that there was no such person.

The Hon. I.F. Evans: He may not be an Australian citizen.

The Hon. M.J. ATKINSON: He has quite an Anglo name, I am afraid.

An honourable member: He might be English.

The Hon. M.J. ATKINSON: Yes—good tries, all of you, but I am afraid I have made up my mind on that one. What I am saying is—

Mr Hanna: Paranoia doesn't mean that you're wrong.

The Hon. M.J. ATKINSON: Exactly. What I am saying is that a greater abuse than creeping around in the dark putting unauthorised bogus material in letterboxes is what goes on on the Adelaidenow website every day, and that is people putting false and defamatory material on the blog site using pseudonyms or names that appear to be legitimate names from legitimate places but are not. I advise members to go and have a look at that website and see the kind of material that goes on it. Can you imagine what will occur when we have this Adelaidenow blog site in the course of a general election campaign?

Mrs Redmond: Plus Twitter—

The Hon. M.J. ATKINSON: Yes; plus Twitter and other blogs. That is to say, the most unlawful, fraudulent material will go on the web via these methods.

Mrs Redmond: And we'll still be back here talking about this paper—

The Hon. M.J. ATKINSON: As the member for Heysen said, we will be sitting here talking about tightening up the law for the distribution of bits of paper. When I was much younger, during an election campaign it would be required of every letter writer to the editor to put their name and address on the letter to the editor. And that was a good thing, to make sure that, if people were going to enter the debate about the general election, they were identified.

The Hon. I.F. Evans: Or at least on the roll—

The Hon. M.J. ATKINSON: No, they do not have to be on the roll, member for Davenport; that is just—

The Hon. I.F. Evans: How would the editor know?

The Hon. M.J. ATKINSON: I am sure that the letters editor runs checks. For instance, I can recall that, when I wrote my first ever letter to the editor, The Advertiser rang up and ensured that it was me. I think The Advertiser did a similar thing with my mother when she wrote, I think, a letter to the editor for the 1966—

The Hon. I.F. Evans interjecting:

The Hon. M.J. ATKINSON: —snap—general election. My view is that we have made a mistake by changing the law and allowing letters to the editor to be published that may be fraudulent, defamatory and bogus.

The Hon. I.F. Evans: Change the law.

The Hon. M.J. ATKINSON: I am. Then you have a little section in the paper, so small and obscure that no-one sees it, that says, 'Melvin Mansell of 121 King William Street takes responsibility.' Well, he does not really. My view is that that blog site, during a general election campaign, if the matter pertains to the general election, should contain the real name and the real street address of everyone who contributes to it. I know that that will probably be controversial and that The Advertiser and the media will scream blue murder and say that we are not keeping up with technology. Yes, we are, and we are making the law what we think it should be so general elections are not perverted.

The Hon. I.F. EVANS: I just want to check that my understanding is right. You are still able to put out how-to-vote cards on behalf of a candidate for a party that advocates a first preference vote for a different candidate other than the party which the candidate represents and seek a second or third preference for your party as long as the leaflet is accurate.

The Hon. M.J. ATKINSON: You have to put yourself first.

The Hon. I.F. EVANS: I want to ask the question again then. In previous elections, how-to-vote cards have been put out that said 'If you are thinking of voting Greens but want to give Iain Evans your second preference, put Greens 1, Evans 2, Labor 3, someone else 4' and it has been properly authorised. That is an accurate piece of material, so why we are banning that, if we are banning that?

What is wrong with a candidate being honest enough to say that they are voting Democrats (and they were always going to vote Democrats) but if you want to give Evans your second or third preference above Labor then this is how you do it, and as long as it is accurate and endorsed what is wrong with that?

Mr Hanna: As long as you're not pretending to be them.

The Hon. I.F. EVANS: No; that's right.

The Hon. M.J. ATKINSON: My understanding is that what I am trying to do is say that is not legitimate any more, that if you want to put out a how-to-vote card which is for another candidate, say, 'Vote 1 Hanna, but don't follow Hanna's how-to-vote card, follow this how-to-vote card', you cannot do it except with Hanna's consent.

I stand by that because I have seen so many examples of that kind of ticket being passed off as the official ticket. We saw Labor do it, I think, some years ago in the Nunawading by-election and we saw the Liberals do it at the last general election to Family First, so that people were misled at the polling booth into believing they were receiving the Family First voting ticket when in fact they were receiving a Liberal alteration of the Family First how-to-vote ticket.

My view is that I do not think it is really possible to hand out such a how-to-vote ticket and to make it clear to the voter that this is not the ticket of the candidate, and, rather, it is someone substituting their order of preferences for that nominated by the candidate. I will give you an example so that it is plain. Let us take Davenport, which is the last speaker's electorate. He puts out a how-to-vote card saying 'Vote Iain Evans Liberal 1', and then he gives his preferences through to the last candidate consecutive numbers.

Is it okay for another person or another candidate to say, 'Yes, vote Iain Evans 1', but put the preferences in a completely different order so that if Iain Evans is eliminated in the count and his preferences distributed, that vote will have a completely different effect from the effect that Iain Evans, the candidate, wants. It is simply no good dressing it up as how to vote for Iain Evans but really vote for Labor.

The Hon. I.F. EVANS: I have to say to the Attorney that I appreciate getting on the record his endorsement for voting Iain Evans but I refer him to the Commissioner versus King which is in relation to the Court of Disputed Returns of my electorate. The Liberal Party state director ran an advert which I opposed but he ran it anyway and it ended up in the Court of Disputed Returns. In that matter, there were how-to-vote cards raised in the court that essentially said this: if you want to vote for a candidate with your first preference but want to give Evans your second preference, this is how you do it. The judge considered those, and in every case found them to be legitimate, because they were accurate in that they did not mislead the voter, and they were authorised by a real person at an address. The judge considered that, and decided that it was accurate. I say to the Attorney that I do not see what the problem is.

I am with the member for Mitchell on this particular issue. It should not be the content that is the problem, but whether it is misleading. I think it is a freedom of speech issue. I think you should have the right to say that you may want to vote 1 for Iain Evans, but you might want to give your second preference to others. As long as that is accurate in what you put out, as long as you do not say that it is the official Liberal Party ticket, it is not misleading. If you say it is the official Liberal Party ticket, it is misleading and already dealt with under the legislation, because misleading information cannot be distributed.

I am with the member for Mitchell. I do not see the issue. I will tell you why candidates like me have done it. The reality is that I have had a 10 to 15 per cent Greens or Democrats vote, and, so, for those people who are never going to change their mind, I try to attract their second preferences. In the lower house, the Greens and Democrats are going to drop out early, and I am inviting them to vote for me above Labor with their second or third preference. Surely, that is a legitimate request as long as my how-to-vote card is accurate and authorised.

The Hon. M.J. ATKINSON: I am not sure that this will mollify the member for Davenport, but this is a straight lift from section 351 of the Commonwealth Electoral Act; so, they have had this debate at commonwealth level. The effect of it is that you cannot claim on behalf of an association, league, organisation or other body, but that presumably allows you to do it as an individual, which is what the member for Davenport wants. I am advised, as I understand it, that an individual could do this, and that addresses the freedom of speech issue, but, it could not be purported to be done on behalf of an organisation or party.

The Hon. I.F. EVANS: Do you mean a political party?

The Hon. M.J. ATKINSON: Yes.

The Hon. I.F. EVANS: So a business association could do it, or a union, but not a political party.

The Hon. M.J. ATKINSON: You cannot purport to do it on behalf of an association, league, organisation or other body. For example, a trade union could not put out a ticket saying, 'Vote Greens but give your preferences to Labor' instead of the way the Greens ticket gives them. So, you could not have a body, association, or party doing it, but an individual could do so.

Mr WILLIAMS: I have been listening with interest to the minister's explanations. I am most interested in the minister's comment that this has been lifted straight out of the federal act. The minister might correct me if I a wrong, but I do not think that the federal act has a provision for lists to be handed to the Electoral Commissioner, whereby a party will give the list and then a vote will be formal if—

The Hon. M.J. Atkinson: No, that is right.

Mr WILLIAMS: Right. You may be able to overcome your dilemma, Attorney, whereby you would allow a party to advertise that, to vote for that party and follow its how-to-vote card, you merely put the number 1 next to its candidate. Then, the votes will follow their list, and there will be no fear that someone could misrepresent—

The Hon. I.F. Evans interjecting:

Mr WILLIAMS: No, that is what I am saying. There is no fear that someone could misrepresent themselves as being that party.

The Hon. M.J. ATKINSON: Well, there is that provision in South Australian law, and I think other jurisdictions are considering adopting it, whereby a mark in the square of one lower house candidate can be validated by a process after the initial count by reference to the registered voting ticket. But, as I was reminded firmly by a previous electoral commissioner, Steve Tully, it would be unlawful to advocate in South Australia that people vote that way. So, one could not advocate to vote in that way.

Mr WILLIAMS: What I am suggesting is that maybe you should change that part of the act so that that becomes lawful. A party could then advocate and advertise that, if a voter wanted to be absolutely sure that somebody was not misrepresenting the intentions of that party with how they might apply their marks to the paper, that they just vote 1 for that party. Their vote is then guaranteed to follow the official list of that party. It may be a third way, minister.

Mr HANNA: I now turn to proposed section 112C. As we go through this, the more I think that the best way of proceeding with this sort of reform is actually to get all the parties and the Independent members around the table and work through the issues, rather than debate it in the formality of the chamber.

The Hon. M.J. Atkinson: That is what we are doing. We are in a committee, the most effective committee of all—the committee of the whole house.

Mr HANNA: Yes, it might be quite a good select committee when it gets to the upper house. The problem that I have with proposed section 112C is that it is framed very broadly in terms of forbidding a claimed association with an organisation. So, I publish a newsletter which has a photo of me standing in front of a goalpost with a soccer ball at the Sturt Marion Football Club. It says something like, 'I've just presented this club with a $2,000 cheque. They are a great club, and I totally support them.'

There is a suggestion there that a candidate is associated with, or supports the policy or activities of, an association, league, organisation or body. Unless I get consent for that in writing, it is an offence. I think that is overkill by a long shot. I can understand the mischief that is behind this, that is, the mischief that the Attorney-General seeks to address. I should not be able to falsely say that the Islamic jihad organisation supports my opponent in Mitchell. I also agree that I should not be able to say that the RSL thinks that I am the best candidate in Mitchell when, in fact, they do not—in this hypothetical example.

So, I can understand that one should not be able to make false claims about such things, but it is drawn so very broadly that, if I have a newsletter where I am associating with people from particular associations (such as my local sports clubs, a Rotary club or anything), there will be a suggestion—and that is all it has to be—that there is an association with that club; and if I do not get written consent, it is committing a criminal offence. I think that is overkill.

The Hon. M.J. ATKINSON: If the member for Mitchell looks at new section 112C(2), he will see that it does not apply if the person proves that he or she is authorised by the candidate to announce or publish the thing claimed. So, if the candidate is publishing an election propaganda which says he supports the Sturt soccer club and has always supported them, and goes to the matches and is photographed presenting a cheque and so forth, then clearly the candidate consents to being associated with the Sturt soccer club because he himself associated himself with the Sturt soccer club.

Mr HANNA: You can say whatever you like about yourself, even if it is not true. Presumably, as long as it is not too misleading, you can imply that you are best friends with the local soccer club, even if you have only been to one game in the last five years.

The Hon. M.J. ATKINSON: Yes. Let us say someone is running against the member for Mitchell in the next general election and he publishes a flyer saying, 'Islamic jihad supports Kris Hanna and his policies', a picture of a turbaned imam endorsing Kris Hanna to continue as the member for Mitchell. That is the mischief that is aimed at.

Mr Hanna: Isn't it misleading, anyway?

The Hon. M.J. ATKINSON: It is probably misleading, anyway, but there could be an argument that it appears, on its surface, to be helpful. For instance, when I was reading this section, I thought of an incident at the last general election where the Right to Life Australia (based in Victoria) put out the usual Right to Life material in Hartley endorsing the sitting member, Joe Scalzi. I do not know whether or not Joe Scalzi wanted Right to Life Australia to do that, but it went into each letterbox. It was not targeted to pro life voters, it was sent to everyone, including pro abortion or pro choice voters, and I imagine that the net effect was pretty ambiguous, and the then member for Hartley would have been entitled to say, 'Well, don't do me any favours like that again,' and to object under a provision like this, in that he did not ask to be associated with Right to Life Australia.

As politics gets cleverer and more cunning, then these kind of things will happen. You might ask yourself: what was the intention of Right to Life Australia in letterboxing the Hartley electorate supporting Joe Scalzi? Were they trying to help him or were they trying to harm him? Well, the intention was they were probably trying to help him, but they were not doing him a great favour. It does not take much cunning to work out that you can do a lot of damage to a candidate while purporting to help them without their consent, and this is what we are trying to aim at with these provisions.

Mrs REDMOND: Like the member for Mitchell and the Attorney-General, I understand the mischief that is sought to be addressed with the clause. However, it reads to me as though the local church, for instance, could put out a newsletter endorsing, in its own newsletter, a particular person who is a candidate and a member of its congregation but, unless it has gone to the bother of getting the written consent of the person, then it would stand liable to a $5,000 penalty.

So, like the member for Mitchell, it seems to me that, perhaps, we are using a sledgehammer to crack a walnut here. There certainly is a mischief to be addressed, but I am just not convinced that the wording of this section is necessarily the appropriate response. It seems to be so broad in its statement that it comprehends any matter announced or published by a person on behalf of any association, legal organisation or other body, if it claims some connection with the candidate or, expressly or impliedly, suggests that the candidate is the candidate for whom the first preference vote should be given.

Personally, I am very much in favour of the separation of church and state, but I have been aware from time to time, over the years, of churches which have specifically said, 'We think you should vote for X.' That seems to me to be caught by this, and I do not think that that is the mischief that is intended to be addressed.

The Hon. M.J. ATKINSON: That is a fair point by the member for Heysen. It gets back to some remarks that I made very early on in this debate—and it seems like a long time ago—that if all the law were enforced to the nth degree we would be living in a totalitarian society.

Mrs Redmond interjecting:

The Hon. M.J. ATKINSON: That is right; there has to be a complaint to kick this off. There has to be a complaint. It is only going to be a problem, it is only going to be enforced, where someone thinks they have been damaged by what has been done. What is more, it has to be a situation where a prosecution would be in order, there has been damage done and there is a wrong that needs to be righted. So, I do think this law will not have the effect that members argue for. Having said that, I can see that the member for Davenport wishes to return to the fray—once more into the breach, dear friends—and so I will move that progress be reported.

Progress reported; committee to sit again.

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