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House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
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Bills

Electoral (Electronic Documents and Other Matters) Amendment Bill

Committee Stage

In committee.

(Continued from 9 September 2021.)

New clause 36A.

The CHAIR: Member for Kaurna, so we are clear, we are on amendment No. 1, schedule (4), standing in your name. We have the insertion of new clauses 36A and 36B. We have had a brief discussion before going into committee and certainly the suggestion from the Clerk is that we break this up a bit, so I am of the understanding that you will now move new clause 36A as part of amendment No. 1 on schedule (4).

Mr PICTON: My understanding from discussion with the table is that the desire is to separate my amendments set No. 4, amendment No. 1 into 36A and the 36B as separate amendments, as that would ease the progress of this through the parliamentary process. We will come back to 36B later. I move:

Amendment No 1 [Picton–4]—

Page 12, after line 9—Insert:

36A—Amendment of section 115—Limitations on display of electoral advertisements

Section 115(1)—delete '1 square metre' and substitute '2 square metres'

Essentially, we have had a discussion in this chamber already in relation to the size of electoral advertisements, and in particular the one square metre rule, which is a prohibition that nobody seems to understand why there is such a prohibition in place in South Australia. The best we can determine, and the Attorney has used her department's know-how to scour Hansard, is that it is linked with the fact that we have had corflutes, is my best reading of the situation.

There is another bill that we will not talk about that we have recently considered in relation to that matter. Clearly, it is the government's desire that that no longer be the case, which then leaves the question of, if that is going to happen—and we will see what happens in the other place—what should happen in relation to other sized posters. The question is: should there be a restriction in terms of one square metre for posters that could be displayed at your home, on a private residence or on polling booths in such requirements as may well be allowed in other acts to be considered?

I do not think there has been any justification at all that one square metre should be sufficient. I think clearly it has been noted by the Electoral Commissioner previously that this is difficult to enforce, hence now recommending a change to go from one square metre to two square metres, which I do not think could be suggested would blight the landscape.

It would allow additional flexibility for candidates to be able to put their message forth in terms of whatever their political messaging may be, to have that freedom of expression and, particularly in the context of what has been proposed elsewhere by the Attorney-General, I think it does allow a greater benefit in terms of people's expression of their political beliefs, whether as a candidate or as a third-party participant in the electoral process, hence recommending that we move to two square metres from one square metre.

The Hon. V.A. CHAPMAN: I will address my remarks to amendment No. 1, part A, which is for the introduction of a 36A to increase the one square metre rule to two square metres. I indicate the government opposes any increase to the current one square metre rule for electoral advertisements as set out in section 115 of the Electoral Act.

Of course, we canvassed this considerably in our previous debate, when the mover of this amendment sought to abolish size restrictions altogether and set out, over I think about 16 hours of debate, all the people who had long names and could not fit them on a one metre square. I am not sure that poor old member for Stuart would be able to fit his name onto a two metre square, but anyway, that was his argument at that stage. The government opposes this amendment.

Mr PICTON: It is disappointing that this is not going to get support from the government. While there has been a good amount of discussion, I think we could discuss it some more, but I will leave it at the discussion that we have already had, except to say that when you have the Attorney moving other regulations or legislation to try to limit people displaying advertising and the ability that they would have, then surely we should be able to make sure that that could be a size of which could actually be noticed. There is still no reason that has been put forward as to why that should not be the case for why these restrictions should be there. It is a pretty bad state when we have parliament having laws that have very little rationale behind them, so I hope the parliament will support this amendment.

New clause negatived.

Mr PICTON: I move:

Amendment No 1 [Picton–4]—

Page 12, after line 9—Insert:

36A—Amendment of section 115—Limitations on display of electoral advertisements

(1) Section 115(2)(b)—delete '1 metre' and substitute '0.5 metres'

(2) Section 115(3)—after paragraph (b) insert:

(ba) without limiting paragraph (b), the exhibition of an advertisement on a vehicle used for the purposes of a mobile office of a candidate; or

(bb) the exhibition of an advertisement on polling day within 50 metres of a polling booth open for polling (but nothing in this paragraph limits the operation of section 125); or

The amendment in relation to schedule (5), in a similar vein to the previous amendments, would be to relax restrictions on electoral advertisements. We have a restriction in place for another unknown reason; that is, if you do have posters they have to be one metre apart.

If the government is not going to support having an expansion of the size of posters that should be allowed, or advertisements of any kind, then we are at least asking for consideration that we should reduce the distance they have to be apart from one metre to half a metre. Especially if the other bill that the parliament is considering in relation to corflutes progressed, and that is banning from public roads, then the need for the one metre separation rule is drastically reduced. So there will not be a situation where volunteers try to monopolise Stobie poles or the like, or take up an entire polling booth.

It really questions why that one metre restriction needs to be in place in the future. It also means that in the large part, electoral advertisements would be occurring on private property, and it is unlikely that materials would be competing for positions on private properties. Certainly, if it were my house, I would not be having multiple sets of parties being able to advertise. There would be no issue in terms of allowing my Liberal opponent to have a poster out the front of my house because I would not allow them to do that. So there is the question of why there is such a restriction in place in regard to that.

The second part of it is in relation to people being able to use a campaign vehicle. This has been raised a number of times. I believe the member for Florey has had issues with this in relation to the Florey mobile campaign office that she operates. Other candidates from time to time have had issues raised in terms of whether having a vehicle that you use as your office is falling foul of section 115 of the act. I do not see there is any reason why we should not allow candidates to display their name prominently, etc., on their campaign vehicle. You probably would not want a fleet of them, but certainly allowing a vehicle to be used for the purpose of a mobile office of a candidate seems appropriate.

The last section would be to allow the exhibition of an advertisement on polling day within 50 metres of a polling booth, but nothing in this paragraph limits the operation of section 125. So, likewise, I think that these are sensible amendments that allow further expression of free speech and further ability for candidates, particularly those who do not have significant funds to invest in very expensive television or other electronic advertising to be able to partake in the political process, and I ask the house to endorse it.

The Hon. V.A. CHAPMAN: I refer to amendment No. 1 on schedule (5), and indicate that it is hardly surprising that we would see this amendment as late as it might be produced, given the embarrassing situation that the Australian Labor Party had for the Jay bus, which did offend this rule. There was to be a hugely painted bus with all the promotional material about why they would support Mr Weatherill in his attempt to seek re-election. It was a rather embarrassing situation where that piece of advertising had to be withdrawn.

It is clearly there to ensure that the limitation as to the size of advertisements, which is the one metre rule, is not offended, therefore the obligation has always been that each display be a metre apart. The effect of this amendment is to reduce it and obviously create more of a billboard effect which completely attempts to undermine the requirement of having the restriction. The parliament has endorsed that we have the restriction and that we maintain that, therefore this would offend that, and it would allow for cars and buses to be completely covered in advertising.

Whilst I note that the member for Kaurna seems to be sympathetic to the plight of the member for Florey, I would remind him that it is his party that actually caused one of their endorsed Labor members, the Hon. Jack Snelling, to stand against her for pre-selection. They did not seem to show much sympathy to her at that stage. It is opposed.

The CHAIR: Do you wish to make any closing remarks?

The Hon. V.A. CHAPMAN: Sorry, I should indicate that in relation to paragraph (bb), which is the removal of the restriction of the size of posters within 50 metres of a polling booth on polling day, I am advised that this would cause very considerable congestion for electors trying to cast a vote. It is not something that I have approached the Electoral Commissioner about, and I certainly want to inquire whether the mover of the motion has sought the advice of the Electoral Commissioner and, if so, what his response was.

Mr PICTON: Yet again, we have from the government a rejection of positive suggestions to try to increase the ability for people to display their democratic rights in relation to an election without really any reasoning why that should be the case. Why should the member for Florey not be able to have a campaign car that is a campaign office with advertising on that vehicle saying that she is Frances Bedford, 'Contact me for your concerns' and whatever particular issues she may well be campaigning on?

There does not seem to be any reason why that should not be the case, and basically whatever particular views the Attorney had about the Jay bus, my recollection is that it did comply with this restriction in that there was a panel on health, there was a panel on climate change, there was a panel on infrastructure, and they were all a metre apart. So it did comply, but the question is: what is the moral value that we are trying to seek by saying that if you have a bus you have to have a metre here, then a metre there and then a metre there?

It does not seem to be for any particular public policy reason why that restriction should be in place whatsoever. There is no benefit that the community would have by having that restriction in place, and there is really no argument that has been put up whatsoever against that. I hope that the house will see the importance of making sure that candidates should be able to communicate with their electorates. Again, I note this is another way in which candidates who are not well funded would be able to participate in the electoral process to the best of their ability, and I ask the endorsement of the house.

The Hon. V.A. CHAPMAN: A further question, then: has the mover of the amendment at any time sought the advice of the Electoral Commissioner on this matter and, if so, what was the response?

Mr PICTON: I again refer to the 2014 report, and that is what we have relied upon in drafting this. The 2014 report talked about removing these restrictions entirely in relation to advertising that would be in place. We have the Attorney picking and choosing the bits of reports that she likes to implement and the ones that she does not like to implement. But very clearly we were told by the Electoral Commissioner in 2014 that if you have these restrictions in place on size, on distance—all of these sorts of things about posters—then it creates this huge headache for the Electoral Commissioner in going about his job in terms of implementing that, and it was her on that occasion, in terms of working out: have people breached these laws?

The Attorney has already said that she is a regular complainant (I hope not a vexatious complainant) under the electoral laws in terms of submitting batches of complaints against her political opponents and that is why the Electoral Commissioner raised those concerns in 2014. We have read them, we have understood them and that is why we are trying to seek various different ways to address those concerns that were raised in 2014.

New clause negatived.

New clause 36B.

Mr PICTON: I move:

Amendment No 1 [Picton–3]—

Page 12, after line 9—Insert:

36B—Amendment of section 115A—Automated political calls

Section 115A(1) and (2)—delete subsections (1) and (2) and substitute:

A person must not make, or cause or permit the making of, a telephone call consisting of a pre-recorded electoral advertisement.

Maximum penalty:

(a) if the offender is a natural person—$5,000;

(b) if the offender is a body corporate—$10,000.

Essentially, this is about robocalls. South Australians have become sick and tired of political robocalls. This was shown in huge displays of anger from the public when a couple of years ago the Liberal Party and their current leadership decided to bombard South Australians with robocalls at all hours of the day, waking up people—waking up shiftworkers who might have just finished their shift at a hospital, waking up people and their kids who needed to have a good sleep—early in the morning with robo messages from the Liberal Party.

We saw a huge outpouring of anger in the community about this. We saw talkback radio light up with concerns about these robocalls, with a huge call from people saying, 'When will this stop? When will we no longer be subject to these robocall messages?' That is why we, on this side, have adopted a policy that we are taking to the election to say that, if we are elected, we will ban these robocalls from happening. But it is up to the government. We have the opportunity right now to put that change into place before the next election, to make sure there is an even playing field. Everybody will have the same rules and we can stop those robocalls being operated for political purposes which, no doubt, annoy and harass South Australians.

This section would delete the current section which allows these calls to take place and would ban somebody from being able to permit a telephone call consisting of a prerecorded electoral advertisement. If the person was a natural person, there would be a fine of $5,000. If the person was a body corporate, there would be a fine of $10,000.

South Australians would no longer be burdened with what they saw a couple of years ago when the Liberal Party authorised messages and was bombarding South Australians. If my recollection serves me correctly, we had the absolutely ridiculous situation where on one day South Australians were being bombarded with phone calls from these robocall message banks and then the next day exactly the same thing happened again. There were all sorts of apologies flying: 'Oh, the system didn't work properly,' etc.

Clearly, the Liberal Party wanted to send these messages out. They did not have volunteers making the calls, engaging with people, asking them their views. You would just pick up the phone and hear this ridiculous message from the Liberal Party. South Australians have had enough. They do not want to see this happening again. That is why we are bringing this amendment and that is why we have a policy to end this and make sure that this becomes a banned piece of conduct within our Electoral Act.

The Hon. V.A. CHAPMAN: The opposition's position on this—which is not to completely discount whether there may be some merit in this approach—is that it is in fact the Do Not Call Register Act 2006, which is an act of the commonwealth parliament, which explicitly permits robocalls relating to an election. The Australian Communications and Media Authority explains on its website:

As part of a healthy democracy, political parties, independent members of parliament, candidates for election, or interest groups (including trade unions) will use a variety of ways to communicate with you. During an election or other period, even if your phone number is on the Do Not Call Register, you may receive calls relating to the election, including calls providing information, polling calls, research calls and calls from parties seeking campaign donations.

I am advised that federal MP Rebekha Sharkie has said that she will introduce a bill to allow recipients to unsubscribe from political texts. I suggest, therefore, it is appropriate for any amendments to limit automatic texts or phone calls to be progressed in the commonwealth legislation.

If any change is to be made to the laws about these robocalls, changes should be made at the commonwealth level in order to avoid any argument of potential inconsistency between state and commonwealth legislation. Whilst it is a new and novel approach proposed by the mover, it is a matter we will have a look at, but we are in the wrong forum, I suggest, for it to be dealt with, and therefore I indicate we will be opposing this amendment.

Mr MALINAUSKAS: I rise to make it perfectly clear that the South Australian parliamentary Labor Party is committed to banning robocalls from political parties—full stop. We announced our policy some time ago that we will seek to ban robocalls, given the opportunity to do so. Everybody understands that the electoral law that we are discussing today governs the rules that political parties have to abide by. It is entirely within the purview of the state parliament to determine that robocalls from political parties cannot and should not happen, and that is what I and my party are advocating for today.

As I said, we announced our policy some months ago. If this law is not changed now, then it is Labor's intention in government, if we are successful at the next election, to ban robocalls for evermore. But, here, we have an opportunity right now. The government has decided to move a whole bunch of electoral changes in recent times, and that gives us the opportunity to ban robocalls in the lead-up to the next state election due in March next year. In the lead-up to March next year, we are going to have a state election.

As in any healthy democracy, both major political parties—indeed, minor parties and Independents—will be advocating their cause and using any forms of communication available to them to promote their policies and their ideas and their vision for the future of this state. That is healthy. But doing it through the imposition of unsolicited robocalls into people's private homes or, indeed, potentially on their mobile phones, is something that does not accord with the interests of the South Australian people. They are sick of it.

As any family would know, particularly if you have young kids and it is dinnertime, the last thing you want to do is pick up the phone and receive a call from a political party pushing down the phone a message that is unsolicited and certainly not desirable. This is an unnecessary intervention into people's homes and their mobile phones from political parties that should not happen. That is why we should pass this law today that bans robocalls being used by political parties.

I must say that I am incredibly disappointed that the Liberal Party has just formally advised the people of South Australia that it believes that robocalls should continue, including at the next state election. We could change the rules for everybody now and they are saying that is not going to happen. That is incredibly disappointing.

We will be making it clear to all South Australians in the lead-up to the election that the Labor Party's policy is to ban robocalls, and we will do so if we win the election. We will also be making it clear that any Liberal Party member of this parliament who votes against this amendment today believes in robocalls. Whether that be the member for Bragg or the member for King, we will be out there on the door, saying, 'Did you get a robocall?' and we will say, 'The member for King wanted that to happen. They didn't take the opportunity to ban those robocalls.'

We will be assertively making that point clear to every South Australian, because I think they would be alarmed to know that the Liberal Party is determined to continue to impose themselves on people's lives and send them a robocall message at a time that is least convenient to them. I would implore those opposite to change their position on this.

Let's ban robocalls. It will be a law that applies to everybody. It will apply to Labor, it will apply to the Liberal Party, it will apply to the Greens, the Independents and everybody. We can take the moment now and save South Australians that inconvenience, that intervention and that imposition on their everyday lives. There are more than enough ways to communicate political messages outside of robocalls, so let's ban the practice and let's do it today.

The final point I make is that the hypocrisy and inconsistency from those opposite are nothing short of mind-blowing. The government as recently as yesterday used its majority—the tyranny of the majority—to pass a bill banning corflutes.

The Hon. V.A. CHAPMAN: Point of order, Mr Chairman. Not only is the leader reflecting on a vote of the house but it is irrelevant.

The CHAIR: Yes, I uphold that point of order. It was just yesterday, leader.

Mr MALINAUSKAS: The government has a policy of banning corflutes. I would submit that to most South Australians a corflute they drive past on a Stobie pole is far less offensive than a robocall received on a private landline or private mobile in the middle of the night. I would have thought that was a pretty elementary proposition. We have those opposite saying, 'We're going to ban posters, but robocalls, away we go.'

The Hon. V.A. CHAPMAN: Point of order: I think to have a compare and contrast is one thing, but to now go again into making assertions in relation to how members voted in relation to this matter is a reflection on the vote, and it is a matter still before the other house.

The CHAIR: I upheld your earlier point of order, Attorney. I do not believe that the leader has a case to answer this time. I do not believe that he has reflected on the vote as he did in the first instance. Leader.

Mr MALINAUSKAS: Let me be clear, the Liberal Party's policy on electoral communication is as follows: posters? Cannot have posters. Robocalls in the middle of the night? That is perfectly legitimate. The members for Hammond, Morphett, Chaffey, King, Newland and Adelaide think that the Liberal Party should be able to call people at 3 o'clock in the morning unsolicited, but you cannot have an election poster up on a Stobie pole. That is the Liberal Party's position. How patently absurd.

No-one can logically arrive at the view that that is somehow a consistent position to have. It is absurd. We will continue to rail against these changes. We know the Liberal Party's track record on robocalls. The member for Kaurna went through that in a bit of detail, and I think it is worthy of people's contemplation.

However, let me be clear: right now in this house we have the opportunity to ban robocalls. I want to do it, the Labor Party wants to do it and the Liberal Party is stopping that ban because it is going to continue robocalls into the homes of South Australian people unsolicited, unwarranted and extraordinarily inconvenient. We think that is wrong, and we are going to continue to fight against.

The Hon. V.A. CHAPMAN: I have a question to the mover of the motion, and that is whether any request has been presented to the leadership of the Australian Labor Party nationally to amend the commonwealth legislation, which currently permits robocalls and, if so, what was the answer?

Mr PICTON: Can I welcome the opportunity to rebut the ridiculous notion that was put forward by the Attorney-General that somehow we cannot alter the law in relation to robocalls here in this state. Firstly, let's look at the act as it is, because we already have legislation in South Australia that regulates robocalls. This is amending a section of the act that already regulates what robocalls can be used in South Australia.

Mr Malinauskas: Now I know what Dan Cregan was talking about.

Mr PICTON: That's right. Section 115A—Automated phone calls:

(1) A person must not make, or cause or permit the making of, a telephone call consisting of a pre-recorded electoral advertisement unless, immediately after the part of the call consisting of the advertisement, the following statements are made…

So we already have a law in this state that says that you cannot make this phone call unless you meet the requirements that we in this parliament have set. You now come to this parliament and say, 'Oh, you can't move this because, poor little South Australia, we don't have the power to implement laws here; it all has to be the commonwealth. You should ring Anthony Albanese and ask him to put something in place in Canberra because we can't do this here.' We can do this here because we already have a law that covers this field; we already have a law that prohibits robocalls unless particular requirements are met.

What we are proposing is to remove those requirements and say that nobody can make a robocall and not say, 'Here are the hoops you can jump through and do it,' but to remove those hoops and make a clear declaration that those robocalls cannot happen in South Australia. The other galling thing about what the Attorney is putting forward is that she is saying that here is this type of political activity that the parliament may well want to restrict, but that we cannot do this because of potential laws that may conflict with the commonwealth.

It is the exact opposite argument she had in relation to corflutes. Her policy in relation to corflutes is that in South Australia we can do what we like; they are our elections, we can restrict them in any way we want and the commonwealth can look after itself. When it comes to robocalls, which she wants to keep, she is saying that we cannot regulate this area of our election debate here in South Australia because you have to ring Anthony Albanese and have a chat to him, Rebekha Sharkie or Scott Morrison, that we can no longer regulate this.

It is a ridiculous argument, an argument that has been concocted to hide the fact that they want to continue to have this activity allowed in our South Australian elections. It is regulated already in this state. We want to make sure it is outlawed in relation to our political campaigns in this state, and I think that if the Attorney wants to oppose this she should articulate the policy reasons why robocalls should be allowed, what are the actual reasons that this is a good thing for South Australians and should be allowed in our elections, because no such argument has been put forward so far.

Ms LUETHEN: I have a question for the mover of the amendment, seeking clarification on whether the amendment will also lend itself to stopping the text surveys that the Labor Party put in to constituents in my electorate. I received several complaints from people receiving texts from the Labor Party, where they are forced to fill out a survey. They are not able to unsubscribe and have to go through the entire survey to be able to unsubscribe. Will your amendment relate to this sort of campaign activity?

Mr PICTON: It would be exactly the same for the texts the Liberal Party sends out to people. If the member for King wants to put forward an amendment that expands this in relation to texts, certainly we would be willing to consider it. At the moment we have a section 115A, which covers phone calls and robocalls, and I am seeking to amend that to make sure they are banned. If she is putting forward a proposal to expand that to cover other forms, I would be happy to look at that.

The Hon. V.A. CHAPMAN: I will take it as a no, that no request has been made to the federal leadership of the Australian Labor Party. Let's be absolutely clear, at no time have I asserted that this is not a sovereign parliament able to make determinations on this matter.

Secondly, although it might have been inconvenient for the Leader of the Opposition to mention this, if he had been listening he would have heard me say it may well be that this is a proposal that has merit and that we will have a look at it. But in the meantime we have identified where it probably should be dealt with and to deal with such issues as the member for King has raised as to how comprehensive this should be. To simply throw something in at the dying paragraphs of the clauses of a bill—

Mr PICTON: We have had this policy for two years.

The Hon. V.A. CHAPMAN: He has had this policy for two years. In 16 years of government did we see a little twinkle of that? No, of course not. But, nevertheless, they may have merit and I repeat that. I know it is inconvenient to the Leader of the Opposition's speech, because he wants to come in and say, 'This is Labor policy. We are going to take this to the next election.' So be it, but do not misrepresent the position of what our position is, and that is that we will obviously consider these matters, but at this point we have not done that and we, therefore, will not be supporting the motion to amend at this point.

Ms COOK: I rise to support the member for Kaurna's amendment that would stop now the rubbish that my constituents experienced when the Liberal Party sent out random robocalls at a time when they were trying to sleep. Basically, in the middle of their sleep they were receiving phone calls, asking them their opinions, leading them to vote Liberal and doing all the political rubbish that they get on the phone that means nothing to them.

I doorknock thousands of people per year in my electorate and I can tell you there are a lot of them who say, 'If you send those rubbish phone calls out before an election telling me who to vote for, I won't be voting for you. I am sick of them. I can't stand them.' People want to be spoken to one on one and reached out to. I do my best to do that in my electorate. Having sat in a marginal seat that was on nine votes for so long, I put out a word of warning to those people in marginal seats where a handful of votes can make the difference.

I urge people like the member for King, the member for Adelaide, the member for Elder and the member for Newland, who are all in seats where a handful of votes could mean their political future, if you are going to allow your party to go into an election still having robocalls as part of their platform and not vote for this change right now that knocks those robocalls out, I say do it with some degree of fear that you might have a handful of people turn around and say to you, 'You could have got rid of these calls that wake me up from my sleep and annoy the heck out of me and you didn't, so I won't vote for you.'

I support this amendment not just because of that but because really people are sick of robocalls. They mean nothing and they do nothing but annoy people.

Ms LUETHEN: I am clarifying that I will not be supporting the amendment because I take it from the member for Kaurna's answer that the amendment does not stop unsolicited texts from the Labor Party to constituents that force them into a survey with no ability to unsubscribe.

Mr PICTON: Thank you to the member for King. This amendment bans robocalls. If you want to ban robocalls, then people can support this amendment. If you do not want to ban robocalls, then vote against this amendment. The member for King is talking about text messages. Let's be very clear, the Liberal Party uses text messages as well. I think the member for King should be very careful to check if her party, in fact maybe even campaigners in her own area, has used text messages before. I ask her to check that with her local people.

This is not what this amendment is about. As I said, that is an issue that I am happy to consider, but this is about section 115A of the act that covers automated phone calls. This section already covers automated phone calls and already sets a regulation and regulatory scheme around how those automated phone calls should happen. Rather than having hoops that people should jump through to be able to do those automated phone calls, this amendment proposes to flatly say they are banned. The member for King and all members in this house will have a choice when we vote on this amendment. Do you support banning robocalls? If yes, then you can support this amendment. If you do not, then you can oppose this amendment, and they will continue into the next election.

Ayes 23

Noes 23

Majority 0

AYES
Bedford, F.E. Bell, T.S. Bettison, Z.L.
Bignell, L.W.K. Boyer, B.I. Brock, G.G.
Brown, M.E. Close, S.E. Cook, N.F.
Duluk, S. 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.
NOES
Basham, D.K.B. Chapman, V.A. Cowdrey, M.J.
Cregan, D. 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. Teague, J.B. van Holst Pellekaan, D.C.
Whetstone, T.J. Wingard, C.L.

The CHAIR: The result of the division is that there are 23 ayes and 23 noes.

Members interjecting:

The CHAIR: Order! Given that the vote is tied, as Chair I have the casting vote, and I give that vote with the noes.

Clause 37.

Mr PICTON: A question to the Attorney: why is an apparently genuine certificate of the Electoral Commissioner's withdrawal request no longer proof of evidence for an offence?

The Hon. V.A. CHAPMAN: I am referring to section 116A, which relates to evidence under the Electoral Act 1985. Clause 37 purports to delete paragraph (d). It is an evidentiary provision. It is consequential upon the amendment following section 113, which is a misleading advertising amendment, which has already been passed.

Clause passed.

New clause 37A.

Mr PICTON: I move:

Amendment No 2 [Picton–4]—

Page 12, after line 11—Insert:

37A—Amendment of section 121—Conduct of officers, scrutineers etc

(1) Section 121(3)—after 'booth' insert 'that is open for polling'

(2) Section 121—after subsection (4) insert:

(4a) A person who is or has been in a restricted area in relation to the scrutiny of votes under section 89(4) must not, before the close of poll, disclose to any person outside the restricted area any information about the results of a count of votes undertaken before the close of poll.

Maximum penalty: $5,000.

(3) Section 121—after subsection (6) insert:

(7) The Electoral Commissioner may declare an area to be a restricted area for the purposes of the scrutiny of votes under section 89(4).

(8) The Electoral Commissioner may vary or revoke a declaration under subsection (7).

(9) In this section—

restricted area means an area declared to be a restricted area under subsection (7).

This is in relation to the amendment of section 121 in relation to the conduct of officers, scrutineers, etc. This amendment seeks to do two things. The first is fairly simple and the second is a little bit more complex. The first amendment simply allows scrutineers to wear party branding in a polling booth once the booth is closed.

I am sure we all have stories of volunteers who are scrutineering and have left at 5.55pm, looking around for a jumper or a jacket or anything they can use to cover up their campaign shirt, their 'Vickie Chapman for Bragg' shirt or the like, so that they are not falling foul of section 121 of the act. Of course, it is very important that any kind of branding that encourages anyone to vote for a particular candidate or party should not be displayed in a polling booth while voting is happening. There is certainly no disagreement there.

However, this change would only make it an offence to display the branding while the booth is open. While name badges are usually used, it may in fact be beneficial for polling officials to be able to easily identify which party or candidate a particular scrutineer is representing. I do not wish to bring the actions of any electoral officials into disrepute; however, I would suggest that in many cases this is how this offence tends to work in practice anyway, and believe this is common sense.

Very clearly, no-one is allowed to take branding in when you are voting, but when the voting is over there is no-one left to convince and so probably, in any sense, it helps people to understand who the relevant party people are if you can see the particular merchandise they are wearing.

The second part of this amendment seeks to address some concerns members of this place raised earlier in the debate in relation to the secrecy of early counting of pre-poll votes. I note that on 20 December the Attorney's office provided draft regulations to the opposition to outline the approach the Attorney wishes to take on this issue.

The Attorney previously said that these regulations would likely be based on the New Zealand scheme. The problem is that the New Zealand scheme outlined penalties for breaching the secrecy of the early vote counting in its legislation. The government bill did not provide this safeguard. This amendment is seeking to at least partially fix that. What this amendment does is insert an equivalent section to 174G(2) of the New Zealand Electoral Act 1993, which has existed in its current form since 2002.

So when it came to this issue in terms of the way the scrutiny process is going to work, where votes are going to be counted now before polling has finished, we are being told, 'Let's just wait for the regulations. The regulations will have it all there. By the way, we are seeking to replicate what New Zealand has in its electoral processes to make sure they are consistent in the way that operates.' The big difference is that New Zealand has it all in the statute. Its parliament has legislated all these things. They are protected as part of the New Zealand electoral law. They are not part of the regulations in New Zealand.

What we believe should be the case is that we should, as much as possible, be putting those prohibitions, restrictions, protections, in place in the Electoral Act so that they cannot be changed at the last minute by a government in regulation and that everyone would have certainty about what those provisions should be. I absolutely agree, in terms of the New Zealand model, and the New Zealand model does have penalties in place for people who would breach the secrecy of the early voting counting in its legislation.

That is important to note because that could potentially have an impact on the results of an election. We are in a very rapidly evolving news environment, and if we have leaks coming out of the counts of early votes that may well have an impact upon people who have not yet voted, who would still be to vote. None of us wants to see that, so let's make sure we are using those same provisions that New Zealand has in place to protect the scrutiny of that count, to make sure it is an offence for somebody to go out and give the public information in regard to the scrutiny that had happened before the end of the polling booth being open.

Progress reported; committee to sit again.

Sitting suspended from 12:59 to 14:00.

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