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House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
2021-09-23 Daily Xml
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Electoral (Electronic Documents and Other Matters) Amendment Bill

Committee Stage

In committee (resumed on motion).

New clause 37A.

The CHAIR: My understanding is that new clause 37A has been moved, as amendment No.  2 on schedule (5).

The Hon. V.A. CHAPMAN: Yes, the member for Kaurna has moved amendment No. 2 on schedule 137(5), which sets out the provision for the creation of an offence, essentially, for a $5,000 fine in the event that there is a disclosure to any person during the period under question. This is to provide some integrity and robustness around the integrity of allowing for the counting of votes to be undertaken before the close of poll.

I make no criticism of the need to do this. It had been proposed by the government that we follow the terms and conditions around this in the regulations, and reference had been made during our contribution, and I think referred to by the opposition, to the New Zealand electoral act, which has been facilitating this opportunity and done just that. They have, however, as was pointed out by the member for Kaurna, incorporated that in their act. It has a $2,000 fine if there is a breach. I am not quite sure what the dollar value of the New Zealand dollar is at the moment relative to ours, but it is usually fairly comparable.

I do not take issue with the fact that we need to have some rigour around a process. Whether it is in the act or in the regulations or what the penalty should be of any breach is still a matter to be considered. I would need to confer with the Electoral Commissioner as to both the adequacy of something that is being proposed here and/or the level of fine.

There is also provision further in foreshadowed amendments relating to the regulation powers. I indicate at this point that I am not in a position to indicate the government's acceptance of this amendment, but we will work on it between the houses and work out whether that needs to go in the act and, if so, what the relevant penalty should be. I am happy to work with the member for Kaurna on that exercise.

Mr PICTON: I welcome that the Attorney is willing to look at it. I express my disappointment that we cannot support it in this house, given that what the Attorney had previously told the house was that we were basing this on the New Zealand model. This is the New Zealand section replicated. As she has noted, it is a slightly increased penalty, but it is a penalty in keeping with all the other penalties of a similar nature, as I understand it, throughout the act.

As I remember from yesterday, when we were looking at the corflute legislation, the same penalty provision would be in place for putting up a poster under the bill the Attorney is looking at there. I do not see that there is any particular issue with the penalty, but then again she is not proposing that it should be smaller or any other amount. I welcome that at least she is willing to look at it between the houses, but I do not see any reason why it could not be supported and incorporated now.

New clause negatived.

Clause 38.

Mr PICTON: I move:

Amendment No 3 [Picton–4]—

Page 12, after line 12—Insert:

(1) Section 125(1)—delete '6 metres' and substitute '8 metres'

This amendment seeks to extend the exclusion zone for campaigning outside of polling booths from six metres to eight metres from the door, especially as we will be trying to run a COVID-safe election in 2022. As we have discussed in this house a number of times during this debate, it is reasonable to extend the campaign exclusion zone. As it stands, we often have queues that extend beyond the six-metre zone that currently exists within the act, and that was before the need for social distancing.

While many voters relish the opportunity to take a how-to-vote card from every single party, candidate or interest group, there are others who know how they will vote and do not wish to be approached while in the line. This change will give an additional limit to aid people in achieving that goal. The presiding officer will retain the ability to designate a lesser distance as they see fit. This can be required for a range of reasons, including looking after the health and safety of volunteers by allowing them to stand under a shelter during rain or extreme heat if less than six metres or, if this amendment passes, less than eight metres from the entrance to the polling booth.

It might be impractical at a polling booth to have an eight-metre campaign zone at the entrance, therefore the need for that flexibility. Therefore, the need for this amendment is the practical effect that it will be a maximum distance that can be applied at eight metres, particularly reflecting the additional needs for social distancing that will be in place for this election.

The Hon. V.A. CHAPMAN: On this matter, I am advised by the Electoral Commission that they do not have any position on this. Again, we will have a look at it. I think there is clearly a six-metre rule; everyone is used to that. I have not heard any persuasive argument by the member for Kaurna as to whether that be eight metres, to be frank, but he might come up with something else that is a bit more persuasive.

This has never been asked for by the Electoral Commission, to say we need to have a greater space for people to be cushioned from any kind of—I think you described it as more unpleasant. I am not quite sure what your word was, but it was certainly not something that everyone enjoys, having to run through the gauntlet of people who want to promote certain candidates or policies. I have not had any group come to me to say that this would be necessary.

It would simply introduce something without really any other justification. We are clearly going to have people at pre-polls and on polling day having access to information and those who wish to promote their particular candidate with how-to-vote cards, and this is part of the democratic process. Again, I am happy to have a look at that between the houses.

Amendment negatived; clause passed.

Clause 39.

Mr PICTON: In relation to clause 39, can the Attorney point to any instances where concerns about false or misleading information being provided under the act have been raised?

The Hon. V.A. CHAPMAN: To whom or—

Mr PICTON: Publicly or to the Electoral Commissioner or to the department.

The Hon. V.A. CHAPMAN: I will take that on notice, and if there is something that I can assist the house with between the houses I will provide that information.

Mr PICTON: Have any issues been raised about candidates' residential addresses on nomination forms, as to whether they might fall under an offence currently or under this bill?

The Hon. V.A. CHAPMAN: Not that I am aware of, but again I will make that inquiry.

Mr PICTON: Can the Attorney advise what the Electoral Commission does to verify the information provided to them under the act as to whether it is false or misleading and whether there is likely to be any change under this clause?

The Hon. V.A. CHAPMAN: As to what is false or misleading? As to what is—to be false or misleading or which is to be reported on?

The CHAIR: The information provided.

Mr PICTON: What work is done by the Electoral Commission to verify the information that is provided by candidates, for instance, in the nominations?

The Hon. V.A. CHAPMAN: Is that in relation to addresses or generally?

Mr Picton: Addresses.

The Hon. V.A. CHAPMAN: Again, I will make that inquiry and provide that information.

Clause passed.

New clause 39A.

Mr PICTON: I move:

Amendment No 4 [Picton–4]—

Page 12, after line 21—Insert:

39A—Amendment of section 130—Employers to allow employees leave of absence to vote

Section 130(1)—delete '2 hours' and substitute '3 hours'

Obviously, we know that the right to vote is a cornerstone of our democracy, and it is very important that South Australians have the ability to get to the polling booth, particularly on election day when they need to vote.

Section 130 of the Electoral Act makes it an offence for an employer to prevent a worker from leaving work, or levy a disproportionate deduction of pay or penalty in order to have an appropriate amount of time to be able to vote in an election. The current act has a maximum limit of two hours, but this amendment seeks to make it three hours. This, of course, does not mean that anyone can just get out of work for an extra hour on election day. I note that it is also an offence for a worker to take this leave of absence under the pretence that they will be going to vote without any genuine intention of doing so.

What this means is that if this is needed because lines or queues are extra long, then the maximum time someone has to vote would be three hours without suffering a penalty rather than two hours. It has already been acknowledged that there are a range of different processes that the Electoral Commission need to go through to run a COVID-safe election, and there are polling booths that do have significant queues. This would be an additional safety measure to ensure that if there were long queues on election day, people would not suffer a significant penalty to vote.

This section does not apply to an elector whose absence may cause danger or substantial loss in respect of the employment in which the employee is engaged. I suspect that if an employee were to use this provision, most reasonable employers would not impose a penalty if the employee were gone for 2½ hours to vote; unfortunately, as many of us on this side of the house can attest from our work with working people, unreasonable employers do exist, and this change is designed to protect the worker in such an instance.

It is a commonsense change that is designed to allow workers to deal with what may be the reality of the longer time it will take to vote at the next election and possibly other elections in the future.

The Hon. V.A. CHAPMAN: Can I just say that the Electoral Commissioner has not raised this, the unions have not raised it, Business SA has not raised it. Obviously we would like to consult with employers and employees about this extra time that might be required, but I just remind the member that under the bill before us we are already promoting and have passed an extra pre-poll allowance for 12 days to deal with the fact that we have a big rush on election day and we need to be able to expand that. So we are expecting that there will be a reduction in the lines.

We have also had a commitment from the Electoral Commissioner during estimates that it is not his intention at all to close any polling booths; there is no rationalisation happening here. Obviously we are also providing telephone-assisted voting in certain circumstances. We would certainly be hoping there would be a reduction in the line-up, for people to be able to have work off.

Again, I am happy to look at this between the houses, and I am happy to speak with Business SA. Employers might be more accommodating for someone who is in a COVID situation who might need extra time—they might have to catch three buses to get to the polling booth or whatever—but at this stage it has not been raised by anybody. However, I am happy to look at it between the houses.

New clause negatived.

Clause 40 passed.

New clauses 41 and 42.

Mr PICTON: I move:

Amendment No 5 [Picton–4]—

Page 12, after line 23—Insert:

41—Amendment of section 133—Disqualification for bribery and undue influence

Section 133—delete '2 years' and substitute '4 years'

42—Amendment of section 139—Regulations

Section 139—after subsection (2) insert:

(3) Subject to subsections (4) and (5), a regulation made for the purposes of this Act cannot come into operation during a prescribed period.

(4) A regulation made for the purposes of this Act may come into operation during a prescribed period if the Minister certifies that the registered officer of the major party that is not in government on the date falling 14 days before the making of the regulation has agreed in writing to the regulation coming into operation during the prescribed period.

(5) Subsections (3) and (4) do not apply to the substitution of a regulation by another regulation made for the purposes of Part 3A of the Subordinate Legislation Act 1978 that is substantially the same as the regulation being substituted.

(6) A reference in this section to the major party that is not in government is a reference to the registered political party with the greatest number of members of Parliament, not including—

(a) the registered political party whose members of Parliament form government; or

(b) if the government is formed by the members of more than 1 party, or 1 or more parties and other members of Parliament, whether acting in coalition or otherwise—any registered political party or parties so forming government.

(7) In this section—

prescribed period—each of the following is a prescribed period:

(a) the period of 6 months immediately preceding the day after the day on which a general election must be held under section 28(1) of the Constitution Act 1934;

(b) the period from the issue of a writ for a by-election for a House of Assembly electoral district until the return of the writ.

The current Electoral Act disqualifies anyone who is convicted of bribery or undue influence, or an attempt to commit bribery or undue influence, for a period of two years from the date of conviction from sitting or being elected. It makes sense that a person engaged in bribery or undue influence will not be allowed to be elected to parliament or sit in parliament; however, the time limit of two years does not appear to make any particular sense.

A person who is convicted of one of these offences may not be prevented from running at the subsequent election. We have four-year electoral cycles, not two-year electoral cycles, and so there does not seem to be a particular limit that would be in place for somebody who committed that offence at the previous election. Especially if this offence relates to an election, it seems extraordinary that a person would not be necessarily prevented from running four years later. This amendment enforces a full term of parliament before the person convicted of bribery or undue influence can run for election or hold a seat in parliament again. That is the first part of amendment No. 5.

The second part of amendment No. 5 is in relation regulations. Many of us who have spoken in this house, in this rather short debate that we have had on this bill so far, have raised concerns about the sheer number of decisions that have been left to regulation in this bill. In South Australia, our elections are not run by the party of government; they are run on rules that are agreed to by the parliament and arbitrated by the independent Electoral Commission.

It is an important part of our democracy that the rules are well known and agreed to in advance of the election. Because of the timing of our parliamentary sittings and the fixed election cycle, there is the risk that the government can make regulations that impact the running of an upcoming election after parliament has risen but before the issuing of writs and caretaker provisions begin. It is important for the government of the day to be able to make changes on the run to deal with new circumstances that arise and there will not always be time for legislation to make it through the parliament.

This amendment seeks to provide a bipartisan approach to electoral regulations within the last six months before an election. This essentially mirrors caretaker provisions that occur after the issuing of writs before an election. The registered officer of the party that held the most seats in parliament—that is, does not form government—would have to provide written agreement to the regulations. Parliamentary counsel advises that this would happen 14 days before the making of the regulation to allow various cabinet processes to occur prior to regulations being made by the Governor.

In considering this amendment, the opposition contemplated a number of options to make sure that every candidate knew the rules they would be abiding by in the lead-up to the election. Ultimately, we reach this compromise position where, if the government did find it important enough to enact regulations within the last six months before an election, they could do so, but it would have to make the case to the opposition of the day and ensure that the rules are not being changed in such a way that would disproportionately benefit the government of the day.

The opposition feels, that because there is so much reliance on regulations for the operation of this bill, it is the right time to put forward such a change to the act to ensure the integrity of our electoral system, to make sure that the government of the day could not erode democratic rights. If the government is serious about maintaining electoral process independently then they would have no issue in supporting this amendment.

The Hon. V.A. CHAPMAN: On the first matter of amendment No. 5 on schedule 137(5), I think it is, of the member for Kaurna, it relates to the disqualification of a candidate for bribery or undue influence and a proposal to delete two years and substitute four years. This is the disqualification period for which the party could not be a candidate if they were convicted of these offences.

Can I just say that there is already provision in our constitution which provides for a member's seat becoming vacant if the member fails to turn up to parliament for 12 consecutive days; is not or ceases to be an Australian citizen; takes an oath or makes any declaration or acknowledgement of allegiance, obedience, adherence to any foreign prince or power; does, concurs in, or adopts any act whereby the member may become a subject or citizen of any foreign state or power; becomes bankrupt or an insolvent debtor within the laws; becomes a public defaulter; is attainted of treason; is convicted of an indictable offence; or becomes of unsound mind. It would be hard to prove the latter in lots of cases. But in any event, we have a fairly comprehensive list of when you can no longer be a candidate.

I do not know what the origin is of the bribery and undue influence provision in the act or as to what the reason is for the two years. Again, I am happy to have a look at that but it just seems to me at this point that there has been no disclosure as to why that should change. It may relate to cycles. I do not know. I have not seen any of the debate or any argument put on that.

In relation to the second aspect, which is the incorporation of regulations, I do not think in the entire time I have been here that we have seen anything quite like this. It sets out a fairly unusual process to provide the opposition with the power to delay the commencement of regulations in the six months leading up to an election when this period has already commenced.

So there are the caretaker conventions—we understand that; they are well established. The proposed amendment unnecessarily complicates both these established processes. There is also the Subordinate Legislation Act which sets out the ordinary process for making regulations and generally that regulations come into force four months after the day on which they are made or at such later date as is specified in the regulation.

I will not go through all of that, but I am advised that, although the member seems to be foreshadowing some kind of abuse of process here, there are two things I will bring to the attention of the house. One is that we have drafted some regulations. We have provided a copy of that—I think it has gone to the Hon. Kyam Maher. We are happy to still keep talking about those in anticipation that there will be some reforms if this legislation passes the parliament. Even that is a bit back to front. We understand the reasons why that is, and we would hope that there are some bona fides accepted in relation to that.

But even if the opposition takes the view that this is some devious plot by the government to have some abuse of the process and therefore to exploit the circumstance that there may not be any parliament sitting after December this year, I hear that. Can I just say that I want to reassure the parliament that at any time a party can make an application for a judicial review of a matter and that is a position that is available to them if they are unhappy with a decision that is made in relation to this.

So there are remedies here in relation to how this is dealt with if there is some suggestion of some sinister intent or plot on behalf of the government to deal with this. We have provided draft regulations, we have invited the conversation about any amendments that are sought in that regard and we are happy to continue to do that during the course of the passage of this bill. If it is to pass this house, then it would be between the houses that we would be happy to continue to confer.

I have not had any requests from the Hon. Kyam Maher, who has the general management of this on behalf of the opposition, but again he is aware that we are happy to meet with him and provide any other information and/or listen to his proposals in relation to the development of the regulations.

Mr PICTON: I think the Attorney hit the nail on the head in terms of our concerns in terms of what the government's motives might be in relation to the various things that, throughout the course of this short debate, we have had on this bill. They have said that they are going to leave it up to regulation, and that is why this amendment is seen to be introduced. While you can circulate all the drafts of regulations you like, the government can change its mind and the government could introduce new regulations right up until caretaker period with no ability for the parliament to have oversight of that. That is what this amendment seeks to fix, which of course would apply to future governments as well and to future times when the parties might be in different positions as well.

I think in the lead-up to the election there should be certainties as to the rules, which is one of the reasons why we have raised concerns in relation to the entirety of this legislation. This is being brought to the parliament at one minute to midnight before we have the election campaign and these sorts of rules should have been established long ago if the government was so serious to do so.

The Attorney said, 'You can apply for a judicial review.' Sure, but that has a very limited scope in what the judiciary would seek to throw out the regulation issued by the Governor. They are not going to do it because of the merits of the case. They are not going to throw it out because it is unfair, only if it had somehow fallen foul from an administrative law perspective in terms of the regulations and the scope of them that are being introduced.

There may be a whole range of things that would be totally okay from an administrative law perspective but very unfair in terms of favouring the government's chances at the next election, so that is not really a remedy in terms of addressing the concerns that we have. That would be very limited in scope and not address the fact that the government could issue things that could ultimately benefit their own electoral chances. We remain completely unconvinced that leaving so much of this to chance in the regulations is the way to go.

New clauses negatived.

Title passed.

Bill reported without amendment.

Third Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (16:31): I move:

That this bill be now read a third time.

I appreciate the indication of support for those aspects the opposition were prepared to accede to and I would hope that we can have some fruitful negotiations in relation to some of the proposals that have been presented for further consideration between the houses.

I especially wish to thank the Electoral Commissioner, Mr Mick Sherry, and Mr David Gully—I am sure there are many other officers who provided support and information for the development of the bill—for the work they do for the purpose of elections and democracy generally in our state.

I understand that it is Mr Gully's last state election coming up. He has provided a powerful level of service in this area to this state, and I will doubtless have more to say about him down the track. I make the point that they have a pretty significant year coming: they will have to deal with federal election issues for the Australian Electoral Commission, we have a state election coming up and we have local government elections in the latter part of next year. There is a lot of work that is described in his annual report and referred to in estimates that he and his office have to do, so I thank them for that.

I also wish to acknowledge Michelle Coram, from Legislative Services in our Attorney-General's Department, who has been the adviser to me. She has done a stellar job; she always does. She has had to sit and listen to the informative contributions of many of the members of the parliament over 19½ hours of deliberations on this bill, never with any complaint. She sat here and listened, interested in all those who made a contribution. I was tempted to go to sleep from time to time. Nevertheless, she has been absolutely incredible, so I do thank her especially for the work she has done in relation to this.

I also wish to acknowledge Antony Green. I read somewhere that he is proposing to retire soon from his world of commentary. I want to especially thank him. He came to South Australia and acknowledged and publicly supported the idea that we pick up the opportunity for the counting of voting and have a process where we are able to reduce the declaration of votes and be able to start counting and put them in the piles, so to speak, so that we can know shortly after election day who is going to form government and who is not.

The idea these days of having to wait weeks for a determination about who has won their seat, who is going to be forming government, has really been difficult. I recall an occasion when I left the state immediately after a federal election. It was expected that Ms Gillard was going to become the Prime Minister. I came back within two weeks, and I asked the person at the entry of Sydney Airport whether we had a Prime Minister yet and he said, 'No, still nobody in charge'. I felt at the time that that was just really unsatisfactory, and so I think it is important.

We have the technology to do it. We have the security arrangements to provide it. I thank Mr Green for supporting our initiative in this regard for Australia so that we can make this an improved position for the next election. With those few words, I commend the bill to the house.

The DEPUTY SPEAKER: Before I call the member for Kaurna, Attorney, how long did you say the debate lasted?

The Hon. V.A. CHAPMAN: It was 19½ hours. It started about 10 o'clock on the Tuesday through to midnight on the Tuesday night. We spent all the Wednesday on it and then to 10 o'clock on the Thursday. I think that my office counted up that it was about 19½ hours—so we have comprehensively considered this bill.

The DEPUTY SPEAKER: I can honestly say, Attorney, that as Chair of Committees it did not seem that long.

The Hon. V.A. CHAPMAN: Didn't it?

The DEPUTY SPEAKER: No.

The Hon. V.A. CHAPMAN: That is gracious. Thank you, sir.

Mr PICTON (Kaurna) (16:36): I think that on behalf of everybody on this side of the house we would all say that the debate flew by. I thank everybody for their contributions. I think that the concerns that have been raised consistently on this side of the house still remain. We are concerned about people's ability to exercise their democratic right to vote.

The Attorney was faced with two options. The Electoral Commissioner gave her a recommendation to allow enrolment right up until election day. That would have expanded the number of people who would have had their say and voted in our state election. That was choice 1. She has opted to go for choice 2, which is not to do that but to limit the amount of time that people have to enrol before the election.

We are disfranchising people from being able to have their say at the election. There has been no clearly articulated reason why that should be the case. Ultimately, that will mean that there are many thousands, if not tens of thousands, of South Australians who under option (a) would have been able to have their say in the state election compared with option (b) who would not be able to have their say.

That is the central reason why we are opposed to this legislation. The second reason is that this has been brought to the parliament at one minute to midnight before the state election. We are right in the last six months now before election day, and the Attorney has on multiple fronts tried to change the rules right at the last minute.

We had various other pieces of legislation that were the top priorities. We talked about bringing back the QC title. That was a top priority compared to this legislation, which has been left to the last minute. Changing the rules this late in the game we do not believe is the right approach that should be taken by this parliament, and we will be raising that consistently if we are not successful in stopping this now in the other place.

We believe that every South Australian should have the right to vote and to enrol up until election day. We believe that the government of the day should not be changing the rules for the forthcoming election with such little time to go until that election. We will continue to raise concerns about this bill and to raise concerns about what will be limiting the chance of South Australians to have their say on what will be a very important election for South Australians.

Do you want to continue with a government which is cutting the health system, privatising essential services and which is mired in corruption and scandal, or do you want to adopt a new vision for this state? We believe that South Australians will opt for the latter, but clearly the government believe that trying to stop people—particularly young people—from enrolling to vote is their best way of staying in government.

The facts are very clear that the vast majority of people who are enrolling late are younger people, and clearly the government is afraid of those younger people expressing their views. We have heard as much from the commissioner herself. She has written to all members of parliament expressing her concerns with this legislation, that it would deprive young people from having a say. Let's not let the Attorney-General's agenda of stopping young people from having a say proceed, and let's make sure that as many young people as possible have the chance to have their say in the next election.

The house divided on the third reading:

Ayes 25

Noes 21

Majority 4

AYES
Basham, D.K.B. Bell, T.S. Chapman, V.A.
Cowdrey, M.J. Cregan, D. Duluk, S.
Ellis, F.J. Gardner, J.A.W. Harvey, R.M. (teller)
Knoll, S.K. Luethen, P. Marshall, S.S.
McBride, N. Murray, S. Patterson, S.J.R.
Pederick, A.S. Pisoni, D.G. Power, C.
Sanderson, R. Speirs, D.J. Tarzia, V.A.
Treloar, P.A. van Holst Pellekaan, D.C. Whetstone, T.J.
Wingard, C.L.
NOES
Bedford, F.E. Bettison, Z.L. Bignell, L.W.K.
Boyer, B.I. Brock, G.G. Brown, M.E.
Close, S.E. Cook, N.F. Gee, J.P.
Hildyard, K.A. Hughes, E.J. Koutsantonis, A.
Malinauskas, P. Michaels, A. Mullighan, S.C.
Odenwalder, L.K. Piccolo, A. Picton, C.J. (teller)
Stinson, J.M. Szakacs, J.K. Wortley, D.

Third reading thus carried; bill passed.

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