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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
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ELECTORAL (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading (resumed on motion).

Mr PENGILLY (Finniss) (15:40): I will not take up too much of the house's time. I also note in this bill the issue of postal vote applications. One of the wiser moves made by former treasurer Kevin Foley during his time was to enable members to distribute postal vote applications through the global allowance.

On that basis, on the assumption that all members actually sent them out (which I do not know), around half a million dollars of taxpayers' money went out on that exercise. I think, from memory, it cost me around $11,000, but I have not checked that. That was money that we could have spent on other matters, but it was—

The Hon. J.R. Rau: Exactly.

Mr PENGILLY: Yes. But, I do think that, if the procedure for the distribution of postal vote applications is changed, they should adopt what is recommended. That may be useful. I notice also that Jenni Newton-Farrelly, who is an absolute expert on most of these things—she is a terrific operator and a great help to all members of parliament—has suggested that the bill's drafting is somewhat inconsistent, and that we need to revisit that.

As I said, it does not much matter what we may put up by way of amendments; they probably will not get up. But, I am sure that when it gets to the upper house it will get the substantial doing over which it probably needs, and will be debated long and hard. But, all in all, as I and other members have said, the Liberal Party does support the bill. Democracy is an extremely expensive exercise; however, at the risk of repeating what someone else has said in the past, it is the best system.

We have the best system around, in my view; some others are far from democratic. At any given opportunity, whether it be at a federal, state or local government level across this nation, people can throw elected members out at their whim. I daresay there will be a few getting thrown out at the next state election, and probably a lot more getting thrown out at the next federal election, but that is another story.

I think we have to revisit the way we go about our democratic business, and have bills such as this come into the house. There are a number of other matters in the bill which the deputy leader, as the lead speaker for the opposition, has put to the house but, in closing, I just reiterate: although it is expensive, we cannot afford to have the skulduggery that took place in the seat of Mawson and other seats happen again. I think it is disgraceful, and it is a slur on everybody. With those few words, I resume my seat.

Ms SANDERSON (Adelaide) (15:44): I just have a few things that I would like to discuss. I have only been involved in two elections: my own in 2010, and then the federal election not long after. Certainly, there were a few things which greatly disappointed me and, as a new person to the political process, I found it quite shocking that some of these things were allowed to occur.

In direct reference to the legislation that we are looking at at the moment, I am glad that we are actually addressing these issues and looking at electoral reform. I welcome that, and I also welcome the opportunity for the opposition to have some input to make it even better and even more broad-ranging. In terms of the Deputy Electoral Commissioner, there is a discussion about putting in a term period rather than having it as it is at the moment, which is by appointment, and that expires at the age of 65.

I would like to note that in every other jurisdiction in Australia the Electoral Commissioner is also subject to a time period, which can certainly be extended up to twice on many occasions. Victoria, I think, has a 20-year time period, so it is not as if it is a short-term appointment and would not have any job security. That is not what I am suggesting; however, I do think that there should be a consideration of time periods for both the commissioner and the deputy commissioner.

I am also philosophically opposed to setting a time limit on somebody's skill at the age of 65. There are many people, particularly in my electorate, who are well over the age of 65 who have a lot to contribute to their community, and I just do not think there should be an arbitrary number placed on that. That is my personal philosophical view; however, it is not necessarily the view of the whole Liberal Party, but it is something to consider.

Another thing bothered me, particularly at the federal election when I was working on a booth and handing out how-to-vote cards. The Liberal Party, as we know, has always been associated with the colour blue, the Labor Party with the colour red, and the Greens with colour green. I remember approaching a couple of my constituents at a booth with a blue how-to-vote card, and a couple of them told me they already had one. I looked at and it was actually a Labor how-to-vote card printed very similarly with the same colour blue as that of the Liberal Party.

I found that to be quite false and misleading and quite disturbing that it would be done on purpose, so I welcome that how-to-vote cards will have to be registered. I just hope that we do not have Labor registering the colour blue on their how-to-vote cards immediately because that would certainly be, I believe, in contravention of the intention of this, which is to allow a fair playing field and to be open and transparent about who is to benefit from that vote.

I note that in my own election the Labor candidate sent out a how-to-vote Greens recommendation, and apparently that will still be valid. I believe that is fine if it is noted on it that it is from a Labor member; I do not have a problem with that. I did find it a little bit misleading, and perhaps not as clear and transparent as I think it should be, that in terms of the many corflutes that were up during the election I was running in 2010 the Labor candidate had no reference to the Labor Party anywhere on their poster. I think that if you are a member of a party it should be stated clearly.

I believe in this actual legislation it is clearly the intent that the person to benefit is identified. So, if the Labor Party is to benefit from voting for the person on the corflute or the election poster, I think it should be stated on it. If you are not proud enough to be in the party, well, maybe get out of the party, but I think that a lot of people would like to know who it is they are voting for. The intent is obviously to be fair and to give no advantage.

Again, going back to the election campaign I was involved in, there is a clause that provides that you cannot use materials of a certain size (I think it is greater than a square metre, or two square metres; there is some exact measurement). I went to all my booths (I think there were 13), and they had life-size cut-outs of the Labor candidate, the current member, and they were huge. She is definitely taller than one metre, I can tell you that.

However, because it had been cut out with holes between the arms, legs, and so on, apparently it was about two millimetres off the exact measurement. At first, we were told they had to be removed because it was against the clear intention, which is not to give unfair advantage. Then I had many abusive phone calls throughout the rest of the day from the campaign manager stating that I had to replace them all.

I am very pleased that we are now addressing some of these issues. I think that perhaps this legislation could go further. The intent to create a fair, open playing field, where it is obvious who it is you voting for and where no-one has any unfair advantage, I think is very worthwhile, and I am glad that we are addressing it, but there are other things that could be perhaps included. I think it is also unfair to be wearing a T-shirt that says 'put your family first' if you are not with the Family First Party. I think that is quite misleading and I do not think that should be allowed either.

I have had lots of disturbing calls and appointments with people who have been involved in the electoral process, whether they have been marking off names or whether they have been in the office. Again, as a candidate, because we were allowed to send out the postal votes prior, it meant that I had actually sent out to my whole electorate.

I alerted the Electoral Commission to all of the return to sender envelopes I received that had been sent to deceased people and were flooding back to me and I was informed that, because I was not the sitting member, I was invalid and they do not take any notice. So, people who had some involvement in the commission—I could not say what and I would not if I knew—alleged that those deceased people are kept on the electoral roll for the benefit of the sitting member because they are the only ones who can take them off. I do not know whether that is true, however that is what was alleged.

I think that the electoral roll needs to be updated, as it is in my office. We check the obituaries every single day to make sure that we do not send out letters to people who are deceased and upset their family. It was very disappointing to know that there were several hundred letters returned to me before the last election. Remember that this was only weeks before the election because, once the declaration is made, you cannot send out your how-to-vote cards within 30 days of the election, so it was very close but they were still on the electoral roll. There are lots of issues and it is great to see that we are starting to address some of those. That is all I would like to say on this.

Mr PEGLER (Mount Gambier) (15:52): I rise to indicate my support for the Electoral (Miscellaneous) Amendment Bill. This bill amends the Electoral Act and I think that anything that gives the electors more confidence and certainty in our electoral system is a good thing. I am sure that, if these changes can be made, there will be much greater participation in the elections, so I certainly support that.

Getting the integrity of the electoral roll correct is extremely important. There are some differences between the federal and state rolls. I think we should have those rolls as accurate as we can. I would also like to congratulate and thank the Select Committee on Matters Related to the General Election of 20 March 2010 on the great work they have done and the recommendations they have made to this parliament.

On the issue of certain how-to-vote cards, I think what was done was quite underhanded. Hopefully, with this bill, those sorts of things can be alleviated in future and people will have confidence that the how-to-vote card that they are handed is the one that they actually wanted, not one that has been basically dressed up to look like somebody else's. I felt that was quite underhanded and hopefully we can get that right.

The specific design of the how-to-vote cards, once they have been registered, will not be able to be changed. There will be able to be changes to the preferences if somebody dies or whatever, but the intent of the bill, as far as I see, is to make sure that people know who that how-to-vote card represents.

The other matter that I found quite appalling in the last election was the way that some of the political parties distributed postal vote application forms to the electors. I had many people come to me, wanting to know what the hell was going on because they had received these postal vote applications from various political parties without realising that they were actually coming from a political party and going back to a political party. They assumed it was coming from the Electoral Commission. This bill, if it goes through, I am sure will alleviate that problem, and people will have much more confidence that when they are sent something it has actually come from the Electoral Commission.

Of course, the candidates will still have the opportunity to provide campaign material to those electors, but they will not be able to surreptitiously make it out as if it is coming from the Electoral Commission. I certainly support those changes to the bill and hopefully, come the next election, there will be much more surety by the people who are doing the actual voting on what the material is that they have been handed and a lot of this underhanded stuff will cease to happen. So, I support the bill.

The Hon. R.B. SUCH (Fisher) (15:55): I will make a brief comment or two. I will not repeat what my colleague has just said, but I essentially agree with him in the sense that this contains some very useful and basic reforms. I guess we could always argue that electoral reform could go wider and deeper, but I think there are some very good initiatives here arising out of the select committee, which was focused on the 2010 election.

The reforms in relation to how-to-vote cards I think are good. I think the linkage with the commonwealth electoral roll is an improvement in the way that is done, and the applications for postal votes are long overdue. I think that activity has caused some confusion in the community, and this bill addresses that issue of postal ballots appropriately.

In respect of the age of the commissioner and deputy, I think it is appropriate that over time all of those age limits be removed. Some people might say I have a vested interest, and actually in relation to judges I have discussed this matter with the former chief justice, the Hon. John Doyle. I think we should move to a situation across the board where we do not have a prescriptive age for retirement for any officeholder.

I think it is clearly a form of discrimination. In some countries, you would not even get on the politburo until you were in your mid-80s, but here, when you are only an apprentice at age 65, you are on your bike. Overall, I regard this as a very welcome package and I trust it will get speedy passage.

The DEPUTY SPEAKER: If the minister speaks, he closes the debate.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (15:58): Thank you, Mr Deputy Speaker, and can I first of all thank all contributors, although perhaps some of them made contributions more worthy than others.

Ms Chapman: Especially the member for Unley.

The Hon. J.R. RAU: Unfortunately, I did not have a direct observation of the member for Unley's contribution, but by all accounts, it was memorable. I have examined it in the Hansard and it appears to be peppered with a lot of interjections, which is always a reliable sign of controversy.

Anyway, this particular piece of legislation has had a pretty lengthy gestation. In fact, it was the first piece of legislation that I brought to the parliament as Attorney in May 2010. At that stage, it went off to the other place where it then found its way into a select committee.

The Hon. P. Caica: It's a bit strange about that.

The Hon. J.R. RAU: Yes, funny, isn't it? Anyway, it found its way off into a select committee. I must say, the select committee did some useful work in relation to this matter, and the bill has now returned with the specific undertakings that were given by both the opposition and the government around the time of the 2010 election about bloggers and so-called 'dodgy' how-to-vote cards as part of this package.

In addition to that, there are some other matters. I did not hear it, but I understand that the deputy leader expressed some reservations about the postal vote reform. I actually regard that as an extremely important reform, and I have been very heartened to hear the comments from the member for Mount Gambier and the member for Fisher and also, I think, the member for Finniss, who made a similar remark.

If we are trying to have as clean a system as we can possible have—and I am talking about the electoral system, the democratic system—it is very nice and proper that we should be trying to eliminate, as much as one conceivably can by legislation, deceptive and tricky electoral practices. I guess the mood of the parliament has been to say that the so-called dodgy how-to-vote cards fit into that category, and this legislation does deal with that.

However, I very much adopt the remarks made by the member for Fisher and the member for Mount Gambier, in that if you continue to allow political parties to, in effect, insert themselves into the process of having a vote, as opposed to making a representation to you or making some sort of pitch to you about ‘please vote for me’, that is entirely fair; I do not have a problem with that. I do not think anyone here has a problem with that.

However, inserting a political party into the process of that person even getting a vote is what is going on with postal vote applications. The postal vote application, let's be clear on this, is the way that that citizen is going to be able to exercise their democratic right; whether it is said in so many words or not, the current practice means that they are involved with a political party that has a very clear agenda—namely, to get their vote for them—in the whole process of even being given the opportunity to vote, and I think that is a very unhealthy combination.

The system that is being proposed here is that the Electoral Commissioner, who has no view as to how any of us should vote, should manage the process of an individual applying for a postal vote receiving that opportunity. I think that is the most clean, transparent and totally incapable of any sort of abuse system that we could possibly have for postal voting.

The Hon. R.B. Such interjecting:

The Hon. J.R. RAU: Indeed, as the member for Fisher quietly remarks, the political parties are involved in this because at some point in time one or other or both of them formed the view that there was some political advantage in being involved in a postal vote campaign. What this bill seeks to do, what I am asking the chamber to do, is to take that political advantage away by giving it to the neutral player, who is the Electoral Commissioner.

If the political parties, or indeed an Independent like the member for Mount Gambier, want to be made aware of who are the people who are obtaining postal votes so that they might send a letter to that person saying, ‘Dear Mr Bloggs, would you consider voting for me?’ that is fine because their contacting that voter with electoral material is not connected completely with the obtaining of the voting right; it is separate.

The amendment we have put up facilitates the possibility, if any candidate—not just political party candidates but individuals like the member for Mount Gambier—will have the opportunity of canvassing those people, but it will not be necessary, as might be the case now, where the Labor Party knows who these people are, or who some of them are, the Liberal Party knows who these people are, but the member for Mount Gambier does not know who any of them are. Why is that fair? The member for Fisher does not know who any of them are and the member for Frome does not know who any of them are. How is that fair?

My strong request of the opposition is to give very sympathetic consideration to these matters. It is about cleaning up the system, and it is about not only doing the right thing but the right thing being seen to be done. Can I also say that in light of the Premier's announcement yesterday, we hope this will be the first in a two-step process of reforming the electoral system to make it a cleaner, more transparent system in which members of the public can have greater confidence.

I would say to the opposition—and, as I understand it, the member for Bragg did not say the opposition would be opposing this measure so I am not going to over-egg the pudding—but if they are turning their minds to doing that, please reflect again because you will be swimming against the current tide, you will be going in the direction of secrecy, and political parties having access to things that independent candidates cannot have access to etc., all of which I do not think adds any lustre to us as politicians or to politics generally.

In fact, it is part and parcel of the reason why, when you read the surveys about where people sit in the esteem of the public, I cannot remember whether we are below real estate agents or used car salesmen, but we are in that esteemed company, and speaking, as the deputy would know, as both of us are lawyers, we were already a fair way down the list, weren't we?

Ms Chapman: That's why I came into politics—to move up the list.

The Hon. J.R. RAU: Both the deputy leader and I, I suspect, entered this place in the lofty expectation that by doing this we would be risen in the public esteem because we were, after all, the subject of those terrible jokes about sharks and so on, which both of us had to suffer for years.

Ms Chapman: Bottom of the harbour.

The Hon. J.R. RAU: Bottom of the harbour, yes, all of that stuff. We actually thought we were going to make people think more of us. As it turned out, that is not the case. All of us as members of parliament should be trying to lift the public appreciation of this institution which, for all its faults—and I think the member for Finniss, in his own fashion, was quoting Winston Churchill when he said that democracy is the worst system in the world except for every other system. We can make it better, and we should be trying to make it better.

These proposals, including, significantly, getting the role aligned with the commonwealth role, which will mean we have a contemporary role and an identical role—very important; and, secondly, the idea of having postal voting taken out of the hands of the political parties and put into the neutral, safe hands of the Electoral Commissioner, are two very important changes.

I would implore the deputy leader, please, when you go back to your party room, and when this matter comes into the other place, please support these measures, and be aware that these measures are entirely consistent with everything else that the Premier has been on about and that I have been on about for some time, which is that we want the public to have greater confidence in the electoral system.

We want the public to have greater confidence in the system of government, and the other measures that the Premier announced yesterday are directed towards exactly the same objective, which is to say to the public, 'Some of the concerns which you have—', which we, generally, I think, would agree are more a matter of perception than a matter of bad behaviour but, nonetheless, it does not matter, perception is important. So, I would really urge the opposition to think favourably about this matter when it goes to the other place.

One last matter. Remarks have been made here about the excellent work of Jenni Newton-Farrelly and some of her comments in relation to this matter. She is an extraordinary person and, as a member of this place for a long time, I have been privileged enough to receive endless amounts of excellent research material from her which she willingly distributes to all of us. She has been a help to all of us at some time or another, and I really congratulate her for that.

The Hon. R.B. Such: She just got her PhD today.

The Hon. J.R. RAU: The member for Fisher says that she got her PhD today. Well, congratulations to Dr Newton-Farrelly. The remarks she makes are ones which we will look at and we will consider with parliamentary counsel, and I would be happy to talk to the deputy leader about those things between the house.

My preliminary advice is that some of the things that she has identified conceptually as being problems are much easier in the identification in a conceptual way than they are in the translation into words by parliamentary counsel. That may or may not prove to be an impediment to us, at this point in time anyway, dealing with her points. Out of great respect for her, obviously we would seriously look at anything she proposes but, if it proves to be a draftsman's nightmare, then I think that is something we would need to not allow this bill to be held up on account of. With those words, I hope the bill receives a speedy passage through both this and the other place.

Bill read a second time.

Committee Stage

Clauses 1 to 7 passed.

Clause 8.

Ms CHAPMAN: I have a question which I did not canvass during the course of the debate. It has not been the subject of any proposed change. Under the provisions of section 29, which set out the persons who are entitled to be enrolled—over 18, an Australian citizen, etc.— subparagraph (1)(a)(iv) is the continuation of the provision, 'is not of unsound mind'. I will not necessarily comment on the grammar, although I am not a great fan of double negatives. In any event, I just ask the question because I did check this during the course of looking at this bill. There is no provision for the definition of 'unsound mind' either in this act or in this section.

Historically we have obviously used that phrase for a long time in a lot of other legislation, including the Mental Health Act. We upgraded or contemporised a lot of our language. I note that that has not been done here. There may be a good reason for it, including the complications that might go with that. This language is a bit old, and we would look to the government to identify, at least in the meantime, what the current arrangements are for determining whether someone qualifies under this section and whether there are any changes to what I would say is the usual provision, that is, some certification by a qualified medical practitioner as to mental incapacity. Does it go so far as to enable a director of a nursing home, for example, to certify in respect of those who might be, through frailty of age, deteriorating in intellect?

The Hon. J.R. RAU: I thank the honourable member for her question. This is one which I must say we have not really turned our minds, sound or unsound, towards. I think it is there because it is the historically consistent formulation. I am happy to look into it, but can I say to the honourable member that any change to those words necessarily will mean that, if those words are to have any meaning—that is, the new words—a different group of people will be captured or not captured. So my instinct would be to leave well enough alone.

Ms Chapman interjecting:

The Hon. J.R. RAU: It is trying to find who is currently captured. I believe that it does not—if I can use the Latin term, which the former Premier was keen on doing—ipso facto include members of parliament.

Ms CHAPMAN: Just to clarify, then, does it include someone who has been certified for the purposes under the aged care provisions as a director of nursing homes?

The Hon. J.R. RAU: I will find out.

Clause passed.

Clauses 9 to 12 passed.

Clause 13.

The Hon. J.R. RAU: I move:

Page 6, line 26 [clause 13, inserted section 32B(4)(b)]—After 'subdivision' insert:

, unless the electoral registrar is satisfied that the person's particulars on the roll for the subdivision are more up-to-date than his or her particulars on the Commonwealth roll

Amendment carried; clause as amended passed.

Clauses 14 and 15 passed.

Clause 16.

The Hon. J.R. RAU: I move:

Page 7, after line 32 [clause 16(2)]—After inserted subsection (6a) insert:

(6b) If a copy of information contained in the register is provided to a person under subsection (6a), a person who uses that copy, or information contained in that copy, for a purpose other than the distribution of matter calculated to affect the result of a State election or purposes related to the holding of such election is guilty of an offence.

Maximum penalty: $10,000.

Amendment carried.

Ms CHAPMAN: I just had a question on the second clause 16 amendment. Do I take it that this is being added because there was no provision for a penalty at all and that had been just overlooked? This relates to anyone who uses information from the register. It just inserts an offence; it may be because there was no provision in the act already. It does not seem to be disposing of anything else in the bill or the act. Was it just a mistake, that you forgot to put the offence in at all?

The Hon. J.R. RAU: I thank the honourable member for her question. I am advised that clause 16 will dovetail with clause 17, which we have not yet gone to, and the offence is provided in there.

Clause as amended passed.

Clauses 17 to 20 passed.

Clause 21.

Ms CHAPMAN: This is the provision, Attorney, for the publication of electoral advertisements and notices to have disclosure of the party's name with the person authorising them. Usually these are advertisements, of course, and campaign material. It cannot just be 'Jay Weatherill, printed by' etc.; it has to be 'Jay Weatherill, ALP' or whatever political party he might be with at the time.

In the contribution I made, the opposition had raised concern about other parties: that is, third-party endorsement. The sort of examples that we were looking at, of course, are where a person represents a certain organisation. It might be the Conservation Council; it might be the Civil Contractors Federation; it might be associations or organisations that represent specific interests of parties. It may well be the Hotels Association, if we were to pick out one that is current to legislation we are dealing with.

These people are signing as the authorised person, but there is no identification to the viewer of that material as to whom they might represent so, whilst this amendment places an obligation on a political party, it would not apply, I would not have thought, unless they were registered—a group such as GetUp! or some other organisation or a union. It might be any number of people who have actually had this advertisement prepared and paid for by a quite legitimate group, but it has not been disclosed. Has that been under consideration by the government in the preparation of this new obligation? If it has not, would it consider it between the houses?

The Hon. J.R. RAU: I thank the honourable member for her question. We did actually turn our minds, in general terms, to the question of third-party behaviour in the context of election campaigns. As the honourable member would be aware, there are constitutional issues about people's democratic right to participate in the election process which need to be at least borne in mind when one approaches things.

I guess there are a couple of different levels that we could approach the point the honourable member is making. If the deputy is saying that if the Conservation Council, for example, were to campaign about a particular issue in the context of an election would the government be prepared to consider between the houses some provision which would require the Conservation Council to disclose that they are in fact the author and/or funder of that thing, I think that is something we could look at.

However, it depends how many layers of the onion we want to take off. If we then say, 'Beyond knowing that it's the Conservation Council, we want to somehow peer deep into their psyche and determine whether they are supporters of the Labor Party, the Liberal Party, the Greens or whatever they might be,' I do not see how we can take it to that step.

If the honourable member is asking me whether, if the Conservation Council is actually campaigning in an election, they should, as a group that is campaigning, have somewhere written on their thing, 'This campaign is being conducted by the Conservation Council'—if that is the question that is being asked—I do not see anything problematic about that in general terms, although we will have to seek some advice. It might get more complicated in respect of individuals. I do point out, lest anybody think that achieves as much as one at first thought might think it achieves, that does not stop the interposition of a third party.

I will give another example: the Conservation Council wants a particular development to go ahead or not go ahead as the case might be. They campaign in an election, and they are for something or against something. In that context, it would be relatively easy, I think, from a drafting point of view to prepare a piece of legislation that states, 'And if a third party campaigns in the election they should actually say who they are and their registered address,' or whatever.

However, bear in mind—and I am not suggesting the Conservation Council would do this, but we are just using them as our hypothetical—that the Conservation Council could decide that they are going to use the Clerk or the Deputy Clerk as their front person, and they then fund the Clerk or the Deputy Clerk, who then goes off and procures the advertisement. If you then start looking at that anti-avoidance type of stuff, the question is: how far down the rabbit hole do you want to go? What if the thing behind it is a company? Who are the directors of the company and who are the shareholders? Do you see what I mean? It could go a very long way.

I am not opposing what you are raising at all, but it does bring me to the point that if somebody was a decent sort of corporate citizen one would expect that they would not be trying to hide things, they would just put it out there. If they are really dodgy and shaky and supplied with money from Pyongyang or somewhere, they will go to the nth degree to conceal that, and they are the people that any legislative scheme will find it almost impossible to root out.

I do not have any in-principle disagreement with what the honourable member is saying, and we will certainly look at it between the houses. Off the top of my head, I think that all we will do, realistically, is be able to draft something which captures the pretty well straightforward people who are probably going to do that anyway. If the real mischief we are looking at is dodgy people not actually owning up to who they are, unless you have elaborate anti-avoidance provisions cemented into the legislation, you might find they can still do that anyway.

This is an issue that we will all come to in due course, if we get to the business about electoral funding in the not too distant future and ask ourselves the question about third-party campaigns and funding of those campaigns, and what sort of provisions are necessary to be able to provide transparency in respect of those third-party campaigns, which for constitutional reasons we could not eliminate, nor would we really want to. However, it does throw up some conundrums. It may be that to make it actually effective, as opposed to just a bit of well-meaning legislation, you would have to have pretty elaborate anti-avoidance provision.

Just on that point, can I commend to the honourable member the New South Wales electoral act, because there are provisions in the New South Wales electoral act which are designed to sort of attack this problem in the context of political donations, rather than in the context of the actual advertisement.

I think the honourable member will find that those provisions are extensive, complex and, I suspect, quite a headache for whoever has to implement them. It might ultimately be that the question that has been raised by the deputy is actually best dealt with in the context of the other conversation that we are now about to have.

Ms CHAPMAN: I thank the Attorney. I will just raise another aspect of that. My understanding is that Jenni Newton-Farrelly's report brought this matter to the attention of the opposition, and doubtlessly to that of the Attorney. I am sure you have read it thoroughly, Attorney, and that you have complimented her on her contribution to the parliament. This was a matter that she brought to our attention, as members of parliament, to at least place under consideration. Obviously, she is not presenting an argument either way; she just points that out.

We will probably not be able to avoid this, but as near as possible, if we are trying to look at transparency, whether it is in a donation or an in-kind contribution by a third party, or allowing someone's name to be used for the purposes of some other mischief—there are probably many to think of. One I can recall was the attempt by supporters of the gun lobby to infiltrate the Liberal Party of Australia by attempting to sign up multiple members in the state seat of Mitcham, as I think it was called (now Waite), when the Hon. Stephen Baker was both police minister and local member.

One of the applicants who was seeking admission and membership was named—I will obviously not disclose that, but refer to her as 'Ms X'—and when the application for membership was rejected, an application went to the Supreme Court in an attempt to claim that this was a breach of justice, in that she was being denied the opportunity to join a political organisation. The application to the Supreme Court failed, and there was not even an opportunity for costs to be recovered, because the applicant was what we might describe as a 'person of straw'.

I summarised that position, but people will use names of people in certain circumstances. There is no question that there are penalties which apply to misleading advertising, for example, in campaigns. But, we all know, as a number of members have said today, that having penalties for mischief is sometimes minuscule compared to the financial value in being able to achieve the election of a government or an individual member of parliament.

As best we can, we are looking for transparency, but I think it is fair to say, whether it is a local residents' association, a politically active group such as GetUp!, an industry stakeholder or an advocate representative group—I accept that the definition of these is obviously something that would be important in any consideration, but we will be looking to the government to at least give us an answer, or something to consider when we get to the Legislative Council on Ms Newton-Farrelly's matter.

The Hon. J.R. RAU: If I could make a response to that, I was not aware of the tale of Stephen Baker and his seat, but I hazard a guess that the woman concerned did not genuinely expect to have a lengthy career—

Ms Chapman interjecting:

The Hon. J.R. RAU: No, indeed; but I assume she was not generally expecting a very profitable career in the Liberal Party by taking it to court. Can I say that I am happy to look at this between the houses. I think unincorporated associations, which are another matter that I guess has been raised by the deputy's remarks, are also another case in point. I am happy to think about this more and I am happy to talk to the deputy about this more between the houses, but my suspicion is that we should park this issue into the conversation that I hope to be having with your party and others about other reform in the electoral system.

The one thing we should not be doing is constructing one elaborate scheme in respect of advertising and then constructing another completely different elaborate scheme in respect of donations, because that would create such an absurd situation, and the cost and inconvenience to everybody would be massive. I am not running away from the point; I think it is a good point and I think it is one that we cannot avoid when we start talking about public funding and donation reform. I think we cannot avoid that point, but maybe we should park this into that conversation rather than having it here, which is not to say that it is not a good point.

The Hon. R.B. SUCH: These are more observations rather than questions. I know that the former attorney and now Speaker tried to address the issue of anonymous internet interactions, and this bill does not seek to deal with it either. It is a very complex and difficult matter. I think down the track the nation as a whole needs to address this issue of fake anonymity via the internet where people can slag off and do all sorts of things and hide from real scrutiny.

The other thing that concerns me is letter writers who are actually front operators, foot soldiers, for organisations. In Melbourne The Age in election time certainly requires letter writers to identify themselves if they belong to a group, certainly if they hold office in it. I do not believe The Advertiser has ever taken that position; I think they should.

I believe that in a democracy people should be open and upfront, and if they are writing a letter and they are the president, secretary, or whatever, speaking on behalf a group and making a political point, that group should be associated with the name of the letter writer rather than trying to create the impression that this is some innocent babe from Kingswood or wherever who was just making a point as an innocent citizen rather than the front for an organisation.

They are observations and concerns, and this bill is not going to address them. I just make those observations because I think they do tend to undermine our democratic process because they allow people to mislead or to hide from scrutiny, and I do not think in a democracy that is a good thing.

Clause passed.

Clause 22.

Ms CHAPMAN: There was concern from the opposition's point of view about the new rules on the how-to-vote cards, and it basically introduces an offence for someone, other than the Electoral Commissioner, who attempts to distribute a how-to-vote card. This sets out the new regime. The definition, Attorney, is:

how-to-vote card includes any material that has the appearance of a how-to-vote card (whether published, on its own, or as part of any other material).

I think we all understand in major political parties what we see as a how-to-vote card; that is, published DL, or whatever, on election day which is handed to somebody and which has the candidates named on it and numbers attached as to the preference of voting which you are inviting the viewer to adopt. But how-to-vote cards may come in some other form, and the rule here basically says you can still send one out but you have to give us advance notice and register it and it has to comply with certain other requisites in size, shape, font, colour and so on—all of that new regime that is going to be implemented.

One of the provisions in the form is 'any other matter prescribed by the regulations for the purposes of this subsection'. We have lots of discussions about what is in regulations and what is not. It just seems that that is a bit of a catchall. Again, it is a question of alerting those who might publish a how-to-vote card.

It might be by an individual, for example, who thought, 'I have the read the act. I have got my thing, I have registered it and it is in a few days before. I am individual X.' It might be the member for Fisher, who is putting out his own how-to-vote card and has the right colour and form and the whole gear ready to inspire people to vote for him, but there is some other regulation that comes into play.

How is it envisaged that the Electoral Commissioner will have any provision for publication? Is there going to be any more detail published at the time of registering to nominate as a candidate? What is the deal going to be there?

The Hon. J.R. RAU: I thank the honourable member for her question. To the extent that I believe I can answer it, the first bit of it was: what is a how-to-vote card or material containing a how-to-vote card? I can certainly tell you what the intention is. The intention is that, if what you, deputy leader, and I would understand to be a how-to-vote card is distributed, that is clearly a how-to-vote card—that is easy.

If we distributed a letter which had on the front of it a how-to-vote card but on the back had a bit of bumf about something else, that would be captured or, if we had some other form of election puffery that goes around the place and clutters the letterbox and somewhere on it there is something that looks like a how-to-vote card, that is captured. But what it would not capture is, 'Please vote for me No. 1,' or something like that, which is clearly in a letter saying, 'Why don't you vote No. 1 for me? I am a good person.' That is not a how-to-vote card: that is election campaigning material.

Bear in mind that the mischief that we were directing our attention to when drafting this was the episode that occurred at the 2010 election. So, there is something of a focus on, literally, the how-to-vote card. That was the intended scope of it; that is what it is intended to capture.

As for the business about any other requirements prescribed by regulation, I guess that was intended so that, in the event of us becoming aware of some other clever idea which we have not yet thought of being used to bamboozle people, the Electoral Commissioner should have the capacity to put before the parliament a regulation to capture that other behaviour—that is the essence of it.

Ms CHAPMAN: I just want to perhaps put these two examples to you. Is an email distributed to people in a workplace saying, 'This is how I want you to vote on election day: Smith 1, Chapman 2, Rau 3,' is that a how-to-vote card? Would a handwritten card of instruction from dad to six children on six different copies and to mum and dad and the neighbours as to how they might all vote for John Rau or Vickie Chapman on the day be a how-to-vote card? There are a myriad of examples. I just mentioned those two, which I am sure the Attorney would appreciate. There would be plenty of others that would exist, so, as I say, we are familiar with a printed how-to-vote card that major parties issue, but we are under no illusion—neither of us were born yesterday—about the extent of that. The definition does not really help us. I appreciate the ill of evil that is the origin of this response, but the definition does not really help us in that regard.

The Hon. J.R. RAU: I understand the point that the deputy is making, but can I say this: we all know what we are attempting to capture here. Ultimately, the Electoral Commissioner will be the person who is, on a practical basis, the one required to make common-sense decisions about this. In respect of each one of the examples that the deputy gave, if push really came to shove, we would wind up, as the Crown, asking probably somebody like the Solicitor-General, looking at the particular thing, in your opinion, given this particular thing, does it fit or does it not?

It is deliberately not too specific, because we are inviting a common-sense interpretation of it. But by the same token, bear in mind these are anti-avoidance provisions. These are provisions which are there to try and stop smarty-pants going around the new rules which were not then in place. What we are trying to do is capture all of those very clever people and put them on their guard not to try and be tricky.

The other point that just occurred to me, too, is that there is going to be a federal election, so I hear, before we have ours. Let's say, in the course of the federal election, some new ingenious method is devised by somebody and rolled out somewhere in the commonwealth.

Ms Chapman: Craig Thomson.

The Hon. J.R. RAU: Who knows? Who knows where; who knows who? But let's say that happened and the Electoral Commissioner decided, 'I think this is tricky; I do not want this to happen here in South Australia in 2014.' The regulation making power would mean there would be some opportunity for the commissioner to say to the parliament, by way of a regulation, 'I want to fix this up before it creates a problem.' That is the context of it. Even then, as you know, we can disallow those regulations if we do not agree with them, or the other place can.

Ms CHAPMAN: The only other aspect of that is we are only confining it to what the government are proposing and what we expect on election day to be thrown out there. I suppose the question is raised as to whether we should also be looking at other election material.

The Hon. J.R. RAU: Well, that is what that enables us to do.

Ms CHAPMAN: On the day, used in other elections.

The Hon. J.R. RAU: I am not sure I understand.

Ms CHAPMAN: At this stage, we are talking about how-to-vote cards and then having to be basically registered and approved before you can distribute them, but that does not mean that you would not be using other posters or other material. We have always got the misleading provisions, of course, but at this stage we are confining it just to the recommendation or instruction as to how you might cast a certain vote and that that might be presented as deceptive if it is not clearly identified as to who it has come from and so on.

That does not mean—as you say, during the next election we might find another method or material which is outside of the how-to-vote cards. In the definition under this one, it has got to have the appearance of a how-to-vote card. You see, it is just the instruction as to that rather than negative comment. Do you see what I mean? Should we essentially be applying the same regulation and regime to other letters or material of instruction?

The Hon. J.R. RAU: What we have attempted to do is to be as broad as we can in terms of what anyone would understand as a how-to-vote card. I think the member for Adelaide quite rightly made the point that, in the public mind anyway, there is a certain expectation that cards that have a particular colour and format belong to the Liberal Party, cards that have another format and colour are Labor Party, and if you start mucking around with that, one might say, in a deliberate attempt to confuse the voter, you may indeed confuse the voter and thereby, in effect, by stealth secure a vote that you were not intending to receive.

So, that is clearly the mischief we are going at here. If what the honourable member is saying is if some other form of bad behaviour starts creeping into the system, between the houses I would be open to putting in a regulation making power here for the commissioner by regulation to prescribe other behaviour, but I know that is not something that usually sits comfortably with the opposition, particularly your colleagues in the other place.

Mr PISONI: Thank you minister. I want to ask some questions about the maximum penalty of $5,000 for breaching section 22 or 12A, the special provisions of relaying the how-to-vote cards. How was that $5,000 arrived at, on what basis? We are looking at a situation where there are big stakes in any election. For starters, a backbencher’s salary is $150,000 a year, and $5,000 is a very small amount; and is every person handing out that how to vote card eligible for that penalty? Are the producers of the card eligible for that penalty? Just how many times can that penalty be exercised for a single offence if there were multiple participants in that act?

The Hon. J.R. RAU: I thank the honourable member for that question. It is a very good question actually. As I understand it there are two bits to it. The first bit is, ‘Why $5,000?’ and the second bit is, ‘What about the chain of people involved in the thing?’, the accessories.

In terms of the $5,000, every piece of legislation that we have has some sort of internal relativity in terms of penalties, and there was no magic to the pick of $5,000 other than it was perceived by those who drafted it, the parliamentary draftspeople, that, given the other penalties in the act, the proportionate penalty that should be attached to this offence was $5,000.

Now, if the point that the honourable member is making is that there are some who wish to make a more emphatic statement about this particular behaviour by increasing that penalty, then I guess that is a matter of opinion. I do not particularly have a strong opinion about that one way or the other, other than to say that if you ramp that up, it may be that you then have an absurdity in respect of other offences which you say, 'Well, if that is worth $50,000, how come it is only $2,000 if you do this?'

So, I am happy to have a conversation with anybody about whether those numbers are appropriate, but just bear in mind, if you fiddle with those numbers, there are relativities contained within the legislation which would also be disturbed and you may not just be talking about this. In order to make the rest of the act then sensible, you may have to start adjusting numbers for other bits. That is the only point I make. But I am happy to have a chat with the honourable member about that. However, I suspect that to fiddle with that, and only that, the Electoral Commissioner and the parliamentary draftspeople would say that it creates an anomaly in that then it is out of step with everything else in it and you would need to look at everything else, that is all.

Now, as to the chain of command business, as I read it, the person who distributes the how-to-vote card in contravention is guilty of an offence. Now, I would read the word distribute as literally distribute, in the sense of being the ‘handing out person’ or in the case of a person mailing something, the person who mails it. It would not be the postman. Again, I am happy to have a conversation about that, but I think we would need to be careful, again, in that area. For example (and you would not do this), let's say I decided I was going to try to breach this, so I go off somewhere, I have made up my artwork, and I am pretending to be you.

Mr Pisoni: You might need to put a bit of weight on.

The Hon. J.R. RAU: I know. If I am the person who is winding you up to do this or I am in cahoots with you doing this, arguably 112A(1) picks that up because it states that during the course of an election campaign 'a person must not distribute or cause or permit to be distributed', so I think that that will capture those people who are a part of a conspiracy, if you like, to do it, and then there is a penalty of $5,000 for that, as you would see.

We would not want to get the poor old fellow at the printing shop who is, as far as he is concerned, getting a job, and I walk in with this piece of artwork and say, 'Can you print this up for me?' and he says, 'Yeah, okay, no worries,' and he prints it up. They are not involved in the election, they are not on your side, they are not on my side, they are not on anyone's side, they are just running a business, and I do not think we would be wanting to capture them.

I think the answer is that 112A(1) probably picks up all the other people in the smoke-filled room who came up with the plan and probably picks up the people who have been delivering these things to the polling booths, and the people who have been handing them out I guess are captured by subsection (4).

Mr PISONI: Does it pick up the candidates as well?

The Hon. J.R. RAU: I guess it would pick them up if they were captured by the words 'cause or permit to be distributed'. If the candidate was in cahoots, and that is the way that I understand it, they would be in the crosshairs, but if the candidate genuinely did not have anything to do with it, and it was some other bunch of people doing it, which one would think was unlikely but possible, then the candidate would not be in the loop.

Mr PISONI: I am particularly interested, minister, in what the expectation is on the day when this is reported to the Electoral Commissioner. We know that elections start at 8am, when the booths open, and they close at 6pm—that is 10 hours. We all know that every hour is important, and we also know that a great majority of votes happen within the first couple of hours. What is the expectation of the government, first of all, on what process is in place for the Electoral Commissioner to be advised? How long is it reasonable for the commissioner to take action to, first of all, stop the process, and what powers does the Electoral Commissioner have to stop this?

I am just imagining some burly supporters, perhaps union members, who are not interested in directions from the Electoral Commissioner to cease what they are doing immediately. What if they keep going and keep handing them out? What powers does the commissioner have access to in order to stop the behaviour immediately? What does the government think is a reasonable time frame to shut down an illegal operation like this on election day?

The Hon. J.R. RAU: I thank the honourable member for his question. First of all, the actual initiation of the process would be the same as now: it is a complaint driven process. We do not expect the commissioner to be all-seeing, everywhere, whatever. A polling official, for example, might become aware of it by reason of walking around a polling place and, presumably, they would get on the phone to the commissioner, or one of your supporters or one of my supporters might become aware of it and they would get on the phone to the commission.

So, there would be a complaint from somebody, whether it is an employee of the commission or an interested party. That is the beginning of it, that is how it starts. The commissioner would then obviously have to consider the matter. The commissioner would probably seek legal advice in relation to the matter quickly. As to what the commissioner can do, there are provisions in section 113 in relation to misleading advertising. If the advertising is misleading, section 113 of the act provides a series of things, including offences as well, by the way. It states that the commissioner may request the advertiser to do one of the following: withdraw the advertisement, or whatever, or publish a retraction. They can also take the matter to the Supreme Court.

I take the honourable member's point that it is unlikely that we are going to stop the election as it rolls on through the day. However, it is certainly my understanding—and I invite somebody to correct me if I am wrong about this—that this behaviour, if it occurs, by reason of being illegal behaviour under the act, would constitute, I would expect, grounds for a Court of Disputed Returns.

Mr PISONI: I do not want to harp on this but, from what I have heard so far, this could go on for 10 hours. This could start at 8 o'clock and for the whole day there could be illegal how-to-vote cards being handed out. The answer to your question does not assure me that that will stop, even once the Electoral Commissioner is aware of it. Does the Electoral Commissioner have the ability to call the police and have people arrested for handing out these how-to-vote cards?

The Hon. J.R. RAU: I am advised not. I think the best answer to the question is that the Electoral Commissioner can find out. The Electoral Commissioner can ask these people to stop. These people, once identified, will be prosecuted for doing this, particularly if they refuse to stop. So, there is the prosecution that is coming.

Secondly, if there is any suggestion that there has been sufficient confusion generated by this to in any way affect the outcome of the election, then presumably the unsuccessful candidate would be lodging an application before the Court of Disputed Returns. I agree that in the perfect world you would probably want these people bundled off, but we are not in a position to direct SAPOL, and it is not normal for police to arrest somebody for what amounts to an expiable offence or a summary offence.

If the honourable member can suggest some practical, realistic solution to this, I am happy to listen to him, but I presently do not think there is much more that, in the real world, can be done. There are a lot of things which we do not like happening, where the only sanction is a penalty which only actually gets imposed eventually in a court and the person cannot be stopped in their immediate behaviour but ultimately pays a penalty for persisting with it.

Mr PISONI: Will any additional resources be allocated to the Electoral Commissioner so that the Electoral Commissioner is able to use all the powers within the law on election day to insist that the behaviour stop? In other words, will somebody need to leave a polling booth and leave that job unattended to deal with this matter? Will there be a flying squad that the Electoral Commissioner has access to in order to deal with this matter?

I understand your reference to the Court of Disputed Returns, minister, but we all know that that is a very expensive and drawn-out process, in which case a government could have been formed based on the election of the 24th member of that party to the House of Assembly. I can bet my bottom dollar that the hat will go around in both political parties to make sure that the best possible case is fought for on either side. I believe that the fact that the Electoral Commissioner does not have the power to shut this down immediately is a major fault in this part of the act, and I wonder whether the minister could consider how that can be dealt with between the houses.

The Hon. J.R. RAU: I hear what the honourable member is saying. It is obvious that the honourable member finds this behaviour offensive and that is entirely reasonable. I personally think, having regard to the way we enforce everything else around the place, this is not an unreasonable formulation, but I am happy to give some consideration to it, although my preliminary view is that what you are talking it is actually using a sledgehammer to crack a walnut. We would have to talk to the Electoral Commissioner as well because the Electoral Commissioner may have some very firm views about the extent to which the Electoral Commissioner wants to be spending election day potentially policing one of these issues as opposed to dealing with everything else.

However, I will undertake this: I will make sure that a copy of this Hansard is obtained and sent to the Electoral Commissioner under a covering note from me asking her whether she would be prepared to give me her comments on the matter. In the meantime, if the member for Unley has any particular suggestion as to how this might be done without overly burdening the Electoral Commissioner with some cumbersome procedure or expensive process, then I am happy to have the conversation.

Mr PISONI: Finally, before bringing this to the parliament, did you look for other examples around the world in similar democracies where situations like this may have been dealt with?

The Hon. J.R. RAU: No, I did not, but if the member for Unley would like to accompany me to 50 or 60 countries during the winter break, we can interrogate them about it. On a serious note, no, I have not, but both the government and the select committee were directing their minds at particular problems that we have encountered in our own state. I believe we have dealt with those here and I believe we have dealt with them satisfactorily but, obviously, I do not say to the member for Unley or anyone else that there is not some evil genius out there who will not come up with some particular scheme that we have not yet thought of and that might be something all of us wish we had thought of and had regulated. I guess if that ever does happen, we will be back here.

Mr Pisoni: If you find him, John, hire him!

The Hon. J.R. RAU: I can say to the member for Unley that I am hopeful that in 2014 I will not need any assistance of that type.

Clause passed.

Remaining clauses (23 and 24) and title passed.

Bill reported with amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (17:03): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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