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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-09-22 Daily Xml
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ELECTORAL (MISCELLANEOUS) AMENDMENT BILL

Committee Stage

In committee.

(Continued from 10 September 2009. Page 3184.)

Clause 8.

The Hon. P. HOLLOWAY: Amendment No. 3 is to the itinerant elector's provisions. It imposes another requirement on a person seeking to enrol under the itinerant elector provisions. The person seeking enrolment must live in South Australia and have lived here for a continuous period of one month prior to the application for enrolment. This is aimed at addressing concerns that the itinerant enrolment provisions are open to abuse by people coming into South Australia and enrolling to vote just before an election. It is also consistent with the requirements that must be satisfied under section 29 by other electors who have to reside at their principal place of residence for a continuous period of one month prior to enrolling under section 29(1)(c).

The Hon. R.D. LAWSON: I indicate that the opposition will support the amendment as an improvement on the government's original proposal.

Amendment carried.

The Hon. R.D. LAWSON: I move:

Page 6—

Lines 17 to 19 [clause 8(3)]—Delete subclause (3)

Lines 26 to 33 [clause 8, inserted section 31A(4)(c)]—Delete paragraph (c) and substitute:

(c) the Electoral Commissioner will cause the name of the person to be entered on the roll—

(i) for the subdivision for which the person last had an entitlement to be enrolled;

or

(ii) if the person has never had such an entitlement, for a subdivision for which any of the person's next of kin is enrolled; or

(iii) if neither subparagraph (i) nor subparagraph (ii) applies, for the subdivision in which the person was born; or

(iv) if none of subparagraphs (i), (ii) and (iii) applies, the subdivision with which the person has the closest connection.

Lines 35 and 36 [clause 8, inserted section 31A(5)]—Delete 'and after taking into account any address specified under subsection (3)'

As indicated earlier, the bill (as introduced) gave the Electoral Commissioner a discretion in relation to the particular subdivision in which the itinerant person was to be enrolled, and that included such matters as any other relevant factor. However, the Commonwealth Electoral Act has a hierarchy by which the commissioner determines when a person goes on to the roll, and that hierarchy is more objective and less subjective.

During the course of a briefing on this bill, the South Australian Electoral Commissioner said that she would propose to apply the commonwealth hierarchy even though it is not specifically stipulated. Given that fact, namely that the commissioner would apply the commonwealth hierarchy, and given also the fact that this is a common electoral roll between commonwealth and state electors, we believe it is appropriate to have a uniform provision with the commonwealth and one which is not subject to the individual whim of electoral commissioners. Whilst I do not imagine that would give rise to any particular problem, it is best in matters like this—which talk about legal entitlement to be enrolled—that the provisions be in legislation. So, I seek members' support for this amendment, which we believe is a considerable improvement.

The Hon. P. HOLLOWAY: The Hon. Robert Lawson has placed three amendments on file and, if I understand the amendments correctly, they all relate to the same subject matter and, as such, this amendment should be treated as a test for the series. Clause 8 of the bill inserts new section 31A into the act. This provision is intended to enable a person who does not have a principal place of residence to enrol to vote in state elections. Currently, they cannot.

New section 31A is modelled on the equivalent commonwealth provision although, as the Hon. Mr Lawson's amendments disclosed, they differ in one important way. Proposed subsection (3) of section 31A, the South Australian provision, provides:

The form approved by the Electoral Commissioner may require the applicant to specify an address that may be taken to be the person's principal place of residence for the purposes of this Act.

Subsection (4) provides that, if all other requirements are met, the commissioner will enter the person's name on the roll for the subdivision which is, according to the determination of the commissioner, the most appropriate subdivision, having regard to any address specified by the application and any other relevant factor; that is, the decision as to the subdivision is up to the commissioner.

By contrast, section 96 of the Commonwealth Electoral Act provides that the commissioner must enter an itinerant elector on the roll for the subdivision for which he last had an entitlement to be enrolled; or, if he has never had an entitlement for the subdivision for which any of his next of kin are enrolled; or, if neither of the above apply, for the subdivision in which the person was born; or, if none of the above, for the subdivision with which the person has the closest connection.

The Hon. Mr Lawson's amendments will insert equivalent subsections into section 31A. The government's view is that this will introduce a degree of inflexibility into the itinerant voter provisions that may lead to inappropriate results in some cases; however, the government is prepared to support the Hon. Mr Lawson's amendments.

Amendments carried.

The Hon. R.D. LAWSON: Before we leave that clause, I ask the minister to indicate why we have continued to use the expression 'subdivision' in our legislation. I note that the roll was at one stage divided into subdivisions, and our existing act contains a definition of 'subdivision'. In this amendment, we once again refer to subdivisions, whereas, as I understand it, subdivisions which were a peculiarity of the commonwealth roll are no longer used. I just wonder why we do not use this particular occasion to remove that reference, which appears to be unnecessary. I should say in this connection that, in South Australia, we refer to districts not only in the Electoral Act but also in the Constitution. Electorates are referred to as districts, not subdivisions. Elsewhere in the Electoral Act we use the expression 'district', but in this particular provision we refer to 'subdivision'. I wonder whether the minister can provide an explanation for the committee.

The Hon. P. HOLLOWAY: As best we can measure, it is purely for historical reasons. The honourable member is correct: they were called divisions under the federal legislation and, therefore, that terminology, if you like, was adopted here and has just remained. It has been carried over, so it is purely for historical reasons. I think it would be something worth raising with the Electoral Commissioner. If she thinks it sensible to change the name at some stage in the future, that is perhaps something we can take up with her.

Clause as amended passed.

Clause 9.

The Hon. DAVID WINDERLICH: I move:

Page 8, lines 37 to 49, and page 9, lines 1 to 8 [clause 9(1) and (2)]—Delete subclauses (1) and (2) and substitute:

(1) Section 36(1), definition of eligible political party—delete the definition and substitute:

Eligible political party means a political party whose membership includes at least 200 electors;

(2) Section 36(1), definition of parliamentary party—delete the definition

This amendment would have the effect of restricting the definition of 'eligible political party' to a political party based on a party having the required membership of 200, or whatever the final membership agreed in this bill. It would remove the notion of a political party based simply on the fact that there is a member of a party in parliament where that party does not reach the required number of members.

I think the rationale for this is that an MP having a political party without any reference to membership is perhaps just the latest and strangest of perks available to members of parliament. We hear concerns about cars, phones and travel allowances, but there is this particular perk—not that anyone is particularly upset about it—which is, if you are a member of parliament, you can have a party, even if you have only one member.

I think the logic of a party, in a way, was expressed elsewhere by the Hon. Michael Atkinson, and he implicitly said that a party must have a reasonable participation from members of the community, and I think that is essential if parties are to be vital and vibrant. They need a reasonable level of membership, and I think a party should have an identity separate from that of a member of parliament or there is no point to them.

This is really a test amendment because there are a number of other amendments related to the same concept of removing the notion of a political party just because there is a member of parliament. It restricts the eligibility of a political party to its membership, and I think that puts it back where it belongs—that is, a party being in some way representative of the community and in some way separate from the member of parliament.

I see absolutely no argument for a member having a political party with one member in it. I can see no argument in terms of public interest, democracy or participation in elections. It just seems to me to be a fairly redundant perk, and this is one of a number of amendments that would remove that perk.

The other amendments of mine that relate to parliamentary provisions are 4, 6, 9, 10, 14, 19, 24, 25 and 29. If the committee votes against this amendment at this stage, it will make it unnecessary for me to move the other amendments.

The Hon. P. HOLLOWAY: The last point makes it even more tempting to defeat it. As the honourable member says, this is the first of a series of amendments that will limit the criteria for registration as a political party under part 6 of the act to a party that has a minimum of 200 members. A party will no longer be eligible for registration on the strength of its representation in parliament. The government believes this amendment should be treated as a test for this series.

The government opposes this amendment. The fact that a political party has an elected member of parliament, in the state parliament or as a South Australian member of the House of Representatives or the Senate, is, in the government's opinion, sufficient to warrant its registration. That is why we oppose the amendment. To describe it as a 'perk' is somewhat curious, I would have thought.

The Hon. R.L. BROKENSHIRE: My question to the minister is one that I will ask again during debate on clause 10 and possibly clause 11. I want a categorical assurance from the minister that this clause will not come into effect until after the 2010 election. We would like an absolute assurance of that.

The Hon. P. HOLLOWAY: Yes; the government will not commence these sections until after the 2010 election, and that means all of those related to the registration of parties.

The Hon. R.D. LAWSON: I indicate that Liberal Party members do not support the amendment proposed by the Hon. David Winderlich. We believe that the current definition of 'parliamentary party' is an appropriate definition, save only with the exception that a party that has a member of another state parliament but not a federal South Australian member or a state South Australian member should not be classified as a party for the purposes of registration in South Australia.

We agree to the government's amendment to remove from the definition of 'parliamentary party' those parties that do not have South Australian members, but to go further and eliminate entirely the notion of a party based upon a single member would be a step too far.

We believe there are problems with the notion of registration of a political party and the definition of eligible political parties, and I will be exploring that a little later. For example, we believe that notions such as a party called Country Labor, which is really not a party at all but simply a slogan which is being registered not because there is some genuine party or party organisation behind it, have highlighted the weakness of these provisions.

We have a so-called party being registered now as Royalties For Regions, which is a slogan registered under the guise of a political party when it is not a political party: it is merely a slogan. However, these are wider issues and not specifically affected by Mr Winderlich's measure, which we do not support.

Amendment negatived.

The Hon. P. HOLLOWAY: I move:

Page 9—

Line 11 [clause 9(3), inserted subsection (3)]—Delete 'member' and substitute:

person

Line 15 [clause 9(3), inserted subsection (4)(a)]—Delete paragraph (a) and substitute:

(a) a person who is relied on by two or more political parties may nominate the party entitled to rely on the person, but if a party is not nominated after the Electoral Commissioner has, in accordance with the regulations, given the person an opportunity to do so, the person is not entitled to be relied on by any of those parties;

Line 24 [clause 9(3), inserted subsection (4)(b)]—Delete 'member or members' and substitute:

person or persons

I will speak to the first amendment because, obviously, the other amendments are consequential. New section 36(3) of the bill inserted by clause 9 provides that, for the purpose of the registration requirements, the minimum number of members—a sitting member of the South Australian parliament or a South Australian member or senator of the commonwealth parliament—'two or more political parties cannot rely on the same member for the purpose of qualifying or continuing to qualify as an eligible political party'.

Questions were asked in another place as to whether this provision means that a sitting member of parliament cannot be used by two or more parties to qualify or maintain qualification. The better interpretation is that it can, although we admit it is ambiguous. The term 'member' is used in the context of a parliamentary party and the term 'membership' is used in relation to a non-parliamentary political party.

Amendments Nos 4, 5 and 6 make it clear that subsection (3) applies to both; that is, an elector cannot be counted towards the minimum number of members—that is, the 200—of more than one party, and an MP cannot be used by more than one party to qualify as a parliamentary party.

The Hon. R.D. LAWSON: I indicate support for this amendment. One of the difficulties under the current regime is that there have been a number of what are termed political parties, registered political parties, which are not parties at all, but are simply slogans by which persons seeking to have their name on the ballot paper—names such as the Smokers and Drinkers Party and other names which have been registered—can use exactly the same membership. There are a number of them which would be well known to most members. For example, we have the Over-Taxed Motorists, Drinkers and Smokers Association, which has registered names such as the Smokers Rights Association, the Over-Taxed Smokers Association, the Over-Taxed Drinkers Association, the Over-Taxed Motorists Association and Over-Taxed Pokies, etc.

We have other parties that are registered in the same name. For example, Mr Leonard Andrew Spencer, well known to people in the South Australian political scene, registered in 2000 the No Emergency Services Levy Party and the No Nuclear Dump SA Party; they were both registered by the same person.

The Hon. R.L. Brokenshire: Was he a member of any political party?

The Hon. R.D. LAWSON: The honourable member poses the question whether he is a member of any political party. Frankly, I am not aware of that. Is it envisaged that, under this amendment, what is termed a 'subsidiary party', such as the New Labor Party or the Country Labor Party, can rely upon the same members as the registered party called the Australian Labor Party South Australian Branch?

The Hon. P. HOLLOWAY: My advice is that two parties, related or not related, cannot rely on the same member to make up the 200.

The Hon. R.D. LAWSON: I suppose that, in relation to the Australian Labor Party, that is a party which is registrable by virtue of the fact that it has members of the state and federal parliaments and does not have to rely upon the minimum number of members, but do the other entities have to rely upon a particular membership and, if so, let us say within the Australian Labor Party's registered group, New Labor can rely upon the same members as Country Labor?

The Hon. P. HOLLOWAY: My advice is that this section is only about registration. It is only about registration of parties. Obviously someone can be a member of more than one party. I guess that is up to the party concerned whether they allow that. For the purposes of registration, they can only be a member of one to be counted towards it. In relation to Country Labor, I am sure that we have many more than 200 members.

The Hon. R.D. LAWSON: In relation to the amendments to this particular clause, the committee should be aware that the government originally proposed that the number of electors necessary be 500. Currently, the requirement is 150 electors. The bill was introduced with great fanfare by the government. The Attorney-General justified 500 members but then, obviously as a result of pressure from—

The Hon. David Winderlich: The Democrats.

The Hon. R.D. LAWSON: No, I do not believe that the government would ever respond to any pressure at all from the Australian Democrats. However, the National Party in South Australia might have a little more pull with the government and, accordingly, the new number is 200.

The truly extraordinary thing is that the current number is 150, and here we are increasing the number by 50. For what purpose? It is really for no purpose at all. Originally, no doubt, the Attorney-General was anxious to cause embarrassment to the Australian Democrats, consistent with an attitude that he expressed at the time of the retirement of the Hon. Sandra Kanck from this place and in his continuing attacks upon that particular party. One of the reasons we on this side are opposed to this entire measure is that it is full political opportunism by the government, as well as political point scoring by the government.

The Hon. P. HOLLOWAY: I reject that argument. Clearly, there must be some threshold. Everyone can have a view as to what it is. After discussion, the government is putting forward the 200 number and it is ultimately up to parliament to decide. I hope we all would agree that there should be some threshold. Clearly, it must be a number large enough to sort out genuine political parties, if you like, if you can call them that. It is the government's view that the figure of 200 will do that.

Amendments carried; clause as amended passed.

Clause 10.

The Hon. R.L. BROKENSHIRE: I would like confirmation from the minister that this comes into effect after the 2010 election.

The Hon. P. HOLLOWAY: The honourable member will note that an amendment has been circulated in relation to schedule 1 of the bill to insert 2011 into that date in order to ensure that the transitional arrangements are in place following the next election and that the registration requirements, if this bill becomes an act, will not apply until after 2011. We have circulated that amendment which we will deal with in schedule 1.

Clause passed.

Clause 11.

The Hon. M. PARNELL: I move:

Page 10, line 10 [clause 11, inserted subsection (3)]—Delete '6 months' and substitute: 3 months

This amendment goes to section 40 of the act, which is the order in which applications for registration as a political party are to be determined. The government's amendment, as I understand it, proposes to add an additional restriction. The restriction currently in the act is that the applications must be determined in the order in which they are received, and that makes sense.

The government's amendment proposes that, if any applications are received more than six months out from an election, they must not be determined until after the election. Effectively, my understanding of the government's amendment—and the minister can correct me if I am wrong—is that if we take, for example, the next election coming up, applications received after this weekend just gone would not be determined until after that election. In other words, the cut-off date would be Sunday 20 September 2009 for the 20 March 2010 state election.

The effect of my amendment is to reduce that period from six months to three months. In other words, it leaves the door open a little bit longer for political parties to register. The reason for me proposing that is that there are, in many elections, a number of issues which do not arise until quite late in the piece.

I think it is unfair to restrict the formation of political parties too far out from an election. I understand that in the other place the member for Mitchell moved for a two month period, so, in other words, no new political parties could be registered two months before the election. I understand that the Hon. Rob Brokenshire has that amendment as well, and, as I understand it, the Hon. David Winderlich's amendment basically leaves the door open right up until the last moment, so, effectively, no period of restriction.

The purpose of my amendment is to keep the democratic process open a little bit longer, to give people in the community that little bit longer to get themselves organised into a political party. I believe that it strikes a balance with the needs of the Electoral Commissioner to be able to draw a line under the list of parties and say, 'Well, it's getting too late; no more parties after this date.' I think three months out from an election is a reasonable time for that to occur.

The Hon. P. HOLLOWAY: I understand that there are some like amendments with various permutations of this. The bill inserts a new provision that requires application for registration as a party to be lodged six months before polling day. The six month cut-off is intended to protect the Electoral Commissioner from having to deal with applications for registration lodged so close to polling day that her office has insufficient time to process the applications before an election period commences. That is particularly the case given the new requirement to vet members and the notice, objection and appeal processes, and how far out from polling day the writs may be issued. In addition, her office is forced to process applications when it should be preparing for the election.

The new six month cut-off also sends a clear message to parties as to when they need to lodge applications by. The Hon. Mr Parnell's amendment halves that period. The six month cut-off period was chosen after consultation with the commissioner. It is the minimum amount of time the commissioner thinks is necessary to allow for an application to be processed, including the public advertising and objection procedures, before the writs are issued, given that the earliest the writs can be issued is 55 days out from polling day. Section 42(4) of the act provides:

Where a writ for an election has been issued, a political party must not be registered during the election period.

It is also relevant to note that this is simply about registration—just registration. There are some advantages to registration: the nomination process is easier because all candidates can be nominated on one form, and a registered party has a form of copyright, for want of a better term, over its name. However, failure to obtain registered party status does not prevent a party from contesting an election. It does not prevent a party from running candidates at an election, and it does not prevent the grouping of the party's candidates on the Legislative Council ballot paper.

The amendment would place unreasonable demands on the resources of the Electoral Commissioner's office and therefore it is opposed. I suggest it would be very unwise indeed for any parliament not to take the advice of the Electoral Commissioner in relation to how long a particular section of the bill might take to be implemented; given the advice of the Electoral Commissioner, it would be unwise indeed to mess around with this period of time. I also indicate that this would apply—as we have already indicated to the Hon. Mr Brokenshire—only after the next election.

The Hon. R.L. BROKENSHIRE: I would like to put on the public record that Family First had similar thoughts on this matter when it initially looked at this with our colleague the Hon. Mr Parnell and his party. When we looked at the democratic aspects of this, we were concerned about the incredibly short notice and the fact that it would be impossible for any party to register now for the next election.

We made more inquiries, checking what the minister has just said, and it is a strong recommendation from the Electoral Commissioner. The Electoral Commissioner has said that the writs could be issued well out of the election. In my experience, and from memory, they are generally issued 28 to 32 days or perhaps five weeks out but, strictly speaking, the writ can be issued a lot earlier.

So, after looking at it all, and after realising that it does not come into effect until the election after this coming one—that is, the election of 2014—Family First felt that, democratically, there was enough time for parties to be forewarned, as it is four years from now. Given that the minister has confirmed in the chamber that it does not take effect until 2014, I will not push my amendment.

The Hon. R.D. LAWSON: Whilst the Liberal Party has every respect for the convenience of the Electoral Commissioner, frankly it is not convinced that six months is an appropriate time. It is unduly restrictive in enabling people to register a new political party. We would have been prepared to support the amendment foreshadowed by the Hon. Robert Brokenshire making the period two months; however, I gather from the information that he has just given that he does not propose to move that. In those circumstances—that is not being moved, and I do not propose to move it—we would be prepared to support the three months proposed by the Hon. Mr Parnell.

We have seen, for example, in recent weeks an application for the registration of a new political party, the Save the RAH Party, with Dr James Katsaros as the applicant named in the notice appearing in the Government Gazette. In my earlier remarks today, I have been rather critical of this process of registering what are in effect slogans rather than political parties, as one would ordinarily define a political organisation. However, the Save the RAH Party, I think, is a good example of a community group that is emerging, and it is quite possible to imagine political groups emerging in the last six months before an election. We ought err in the Electoral Act in favour of political expression and would-be political participants generally. Therefore, we will be supporting the proposed three months in the amendment moved by the Hon. Mr Parnell.

The Hon. P. HOLLOWAY: I will just make some comments about the lack of wisdom in supporting that. Once the act has a clause in it which clearly sets out a time under which registration will be lodged, there will be an expectation that the party lodging it will ultimately be successful at the end of the period in getting that registration.

Clause 41 contains all the statutory provisions that have to be undertaken by the Electoral Commissioner in the advertising or gazetting, and so on, of the name and all the processing that has to be done. If it turns out that we accept a shorter period, and a party that lodges it within that time ultimately does not get registered because it simply cannot be done, then there will be a lot of disappointment. Surely it makes more sense to get a period beyond which everybody knows that they must have their application lodged, and there is every expectation that that process will then be fulfilled and that they will be registered as a political party.

I would have thought that it is most unwise to have a period of time in which there will be an expectation that if they conform within that time they will be registered; but the point we are making is that that may not happen. If the process is part way through and the writs are issued, that is the end of it; they will not be registered, they cannot be registered, and that is what I think is the dangerous thing.

At least if the period is set at six months—and it will not apply now; in fact, I think we are already within six months of the next election—that gives plenty of time, as the Hon. Mr Brokenshire said, for parties to get their house in order. However, I believe it would be most dangerous to set a period of time in which we may not be able to deliver the promise. That is where I think we would be most unwise not to take the advice of the Electoral Commissioner: it would just put her, I believe, in a very difficult position—a position in which we should not put someone like the Electoral Commissioner, where the expectation is that if you lodge it in time it will be delivered; it just may not be possible to do that in certain circumstances.

The Hon. M. PARNELL: The minister has referred to the expectation that applicants for registration might feel. As I understand the government's amendment—and it would translate through to my amendment—it provides that, if during the period of six months before election day an application is lodged, 'that application must not be determined until after the general election'. Is the corollary, or the flipside, of that true; in other words, if an application is lodged within six months, must it be determined? In other words, if all steps are not able, for whatever reason, to be followed within that period, is there a reverse obligation to the one provided for in the minister's amendment that provides that it must be resolved within six months?

The Hon. P. HOLLOWAY: No there is not, because there could be an appeal, or some other event may take place, which was obviously not expected or foreseeable. However, there could be some event which would mean that it could not be delivered. I suppose it is even possible, under the Electoral Act, that there could be an early election, under certain circumstances. We have fixed elections in this state, so we know the date on which they will be held. However, there can be certain circumstances, such as bills of special importance or something. I do not know. We would have to get advice on that. I guess you could never be totally certain with that circumstance.

Clearly, with a fixed election, if it is lodged six months before the expected date, one could reasonably expect that the application would be properly processed. There is certainly time for the Electoral Commissioner to do it, and I am sure the Electoral Commissioner would do everything possible to do that. Of course, if there are factors outside of her control, such as appeals and other things, she may not be able to deliver. The point I was making earlier is that at least within six months the Electoral Commissioner believes there is every prospect that, apart from those sorts of events beyond her control, she could process an application. However, if it was two or three months, that may not be the case.

The Hon. M. PARNELL: I want to further explore this issue. I understand what the minister is saying, and that is that at present there is no time limit. The commissioner just starts processing them in the order in which they are received and, if they are resolved before the writs are issued, they are registered. However, if, for whatever reason, they are not resolved, they are not registered.

What I am interested in hearing from the minister is whether there are particular examples where the Electoral Commissioner has identified there have been difficulties when a party has lodged their application three, four or five months out from an election. If there are no examples of applications lodged in that period that have caused real difficulties, I wonder why the need for such a long time period. It is one thing for the commissioner to say that six months sounds like a good time period, but are there cases to which the minister can refer where three, four and five month out applications have been problematic?

The Hon. P. HOLLOWAY: It is more what will happen in the future when these new provisions come into force—and we are talking about prior to the 2014 election—and I am referring particularly to the vetting of the 200 members. That is what will cause the significant workload to the commissioner. It is that part of it which will come in which will make this more difficult than what has happened in the past. I do not believe that has been the case under the current act.

The Hon. R.D. LAWSON: I remain of the position that I outlined earlier, especially in light of the fact that the minister is unable to identify particular problems. Obviously, anyone seeking to register a political party close to an election will, if the application is made three months before the election, run the risk that it might not be completed by the time of the election. However, that risk is run by the person seeking registration. If the Electoral Commissioner cannot fulfil the requirements in that time, the party simply will not be registered and they will not have the opportunity to have their name printed on the ballot paper. However, as the minister has said, they will be able to contest the election.

There is no specific timetable laid down in the existing legislation of which I am aware, other than the fact that the commissioner must give the public one month in which to lodge an objection. I cannot believe it would take a great deal of the commissioner's time to check the name and address of 200 persons. I do not for a moment believe that the commissioner will be sending private investigators out to identify that these are, in fact, legitimate applications and that they have been duly signed, etc. I think the risk is all run by the applicant for the party and, if they do not apply early, they run the risk of not being registered, but why impose what seems to be an unnecessarily long period for the processing?

We are not convinced that three months is not appropriate in these circumstances, because the sanction will not be against the Electoral Commissioner: it will be against the person who is making the application. If they put in an application in which there are insufficient details—for example, that is not correctly signed, without addresses, etc.—then they run the risk of not having their name registered, but the risk is with them.

The Hon. P. HOLLOWAY: While I accept that the risk may be with them, I think that in any electoral system in a democracy it is imperative that you have the utmost confidence in the electoral system itself and the fairness of the system. I think it is unwise to have any provision which will raise expectations. The other point is that, if we have a two month or a three month period and somebody comes in just before, firstly, there is the issue of the writs. We are talking about six months before the election, but the writs could be issued anything up to 55 days out, so that needs to be taken into account for a start, because that is the operative date at which no processing can take place.

To me, if the act spells out that they can lodge at two months and you have somebody lodging and ringing up every day asking what has happened, it puts the Electoral Commissioner in a position which you are best not to impose on an electoral commissioner. The confidence in the system is important, and I would have thought that any electoral act should not even by implication raise expectations. It might be true that the risk is with the person, but somebody forming a new party may well be unaware of that risk. We, as the practitioners and those who have introduced the bill, are well aware of the risks, but for a new practitioner or a new party that wants to establish itself that may not be the case.

At least if there is a six month rule and everybody knows it—it is there in the act—the Electoral Commissioner cannot be accused of unduly delaying an application or something like that. If it happens to be lodged just two months before the writs are issued quicker than expected and somebody misses out, I just do not think it is wise to put the Electoral Commissioner in that position, even though we all know here that the risk is upon somebody or some new party applying.

The Hon. M. PARNELL: I want to ask the minister about the job the Electoral Commissioner has to do in relation to the verification of party membership. I know we have dealt with that clause, but part of the minister's argument as to why the long six month period is needed is that the commissioner has this new job. Unless I have misunderstood it, when a group of people form a party and they want to apply for registration, they provide 200 people they want to rely on and, from what the minister is saying, I get the feeling that his expectation is that the Electoral Commissioner will contact every one of those 200 people.

I would have thought that a party, on the safe side, would probably lodge 300 or 400 people, knowing that there might be some mistakes and, if I were the Electoral Commissioner, I reckon I would probably randomly pick out 20 and, if all 20 had no errors in them, I would probably work on the assumption that those declarations received were sufficient. Unless I have misunderstood something, is the Electoral Commissioner obliged to verify personally the declarations made by at least 200 people who have applied or who have said they are happy to be relied on as a member of that party that has applied for registration?

The Hon. P. HOLLOWAY: I take the point the honourable member is making in relation to extra members, and I am sure that most parties would seek to do that. The commissioner needs to be satisfied is the requirement now. The commissioner may not necessarily check every number. What I assume she would do—and what I would do if I were the Electoral Commissioner—is first of all check that everyone is at least on the roll. That is an obvious check (because there could be made-up names and so on) and, if there are a lot of people in that category, the commissioner may wish to go further.

Obviously, that would be a matter of judgment for the commissioner. If she had any reason to doubt the authenticity, presumably she would undertake more action than if it were a well-known and credible party that had a large number of members; in other words, one would expect her to use common sense.

The point is that, if a number of parties lodged at the last minute, and you had just a two or three month time frame, again I make the point that, if the writs are issued 55 days out, there would be virtually no time to do any checking or even go through the statutory requirements in section 39 of the act. It is not only the checking but also section 41 of the act, which provides:

Where an application for registration is lodged with the Electoral Commissioner, the Electoral Commissioner must publish notice of the application in the Gazette and in a newspaper circulating generally in the State.

That is all going to add a few days, a week or perhaps two weeks on top of that, depending on when the Gazette comes out. The notice has to invite any elector who desires to object to the application to submit a written objection containing particulars on the ground of the objection to the Electoral Commissioner within one month of the date of the publication of the notice in the Gazette, so you have already added a month on to that process.

If you have 55 days in which time the writs could be issued, and then you have a one month statutory period plus a week or two on top of that to get the notice in the Gazette—and that is even before some preliminary checking has been done—the time is starting to get on.

I am sure that the Electoral Commissioner will do her best for any new party that advertises but, again, it comes back to the point I was making about expectation. Her advice is that six months out from the election should be adequate to deal with that and meet reasonable expectations; less than that and there is a risk that some party bringing in its documentation after that time may not make the cut-off if the writs are issued in that 55 day period.

The ACTING CHAIRMAN (Hon. J.S.L. Dawkins): I think it is time that we asked the Hon. Mr Winderlich and the Hon. Mr Brokenshire to move their amendments.

The Hon. DAVID WINDERLICH: I move:

Page 10, lines 7 to 14—Delete clause 11 and substitute:

11—Substitution of section 40

Section 40—delete the section and substitute:

40—Order in which applications are to be determined:

Applications for registration of political parties must be determined in the order in which they are received by the Electoral Commissioner.

In effect, this reverts to the status quo by deleting the period of six months. As pointed out by the Hon. Robert Lawson, that would essentially leave one month to lodge an objection as the effective deadline for the registration of a political party.

The Hon. P. Holloway: Plus the 55 days.

The Hon. DAVID WINDERLICH: Plus the 55 days, which makes it surprisingly close to three months. When we look through the argument for the government's amendment, which is to have a period of six months by which a registration for a political party must be lodged, it is hard to see what the argument actually is.

There has been no evidence presented of actual problems. We have heard that there are theoretical problems. I can see that the argument is administratively easier, and it appears from the minister's answers that, in fact, the government is not even particularly clear on what is driving the six month extension; it just seems to be a general feeling.

The Hon. P. Holloway interjecting:

The Hon. DAVID WINDERLICH: It seems that the advice of the commissioner does not include—or perhaps the minister has not been made aware of it—the detailed reasoning behind that advice other than that would generally be a convenient time. As I said, we have no evidence to date that there have been significant problems here. There is certainly an argument of administrative convenience. Also, with respect to the new provisions that relate to numbers, to date at least we do not appear to have seen reasons as to why that imposes a significant additional new burden.

I do not see a compelling argument other than administrative convenience for having a waiting period of six months. The effect of having this period of registration—'must be received six months preceding the day of a general election'—would be to entrench the incumbents; it would be to stop new parties from forming and, in effect, it would be to stifle political expression. Generally, when new parties form—or very often when they are formed—they are a grassroots expression of a feeling in the community, or a grassroots expression of the degree of frustration or anger. As a general principle I think we would accept that we would want to allow the maximum opportunity for that kind of development of political opinion to take place. We would want to allow the maximum opportunity for political expression in that way.

I guess the other fundamental fact is that people focus more on politics and they focus more on elections as those elections come closer. To require parties to register six months before an election works directly counter to the very dynamic of political expression in the lead-up to elections. I think that is undesirable and restricting participation in the democratic process. In terms of the actual time line, what is theoretically possible or sensible, as the Hon. Robert Lawson pointed out very clearly, is that the risk is with the applicant. If the applicant leaves it too late and the Electoral Commissioner is not able to make the necessary checks, the party may not complete the registration process in time for the election. In fact, that risk already exists. If the would-be party does not get its act together it will be not be registered.

In effect, nothing changes: the risk is still with that party as it currently is under the act. In order to allow the maximum opportunity for new political groups to form and for political sentiment to be expressed in the form of political parties, I think we should keep to the status quo, which essentially allows for applications for the registration of political parties to be determined in the order in which they are received by the Electoral Commissioner; and, of course, that is subject to the issuing of the writs and the one month period of time for the lodging of objections to the registration of a political party.

If the writs are lodged 55 days out, that is getting close to the three months proposed by the Hon. Mark Parnell. On the other hand, if the writs are lodged closer to the actual election date, that provides more opportunity. I think that we should maximise the opportunity for political participation and expression by sticking to the status quo. I do not think that any compelling reasons have been given why that is not possible.

The Hon. P. HOLLOWAY: It is nonsense to suggest that this has anything to do with freedom of expression: it is simply about registering political parties. There is nothing to stop any political party from forming or running candidates in an election. We are simply here talking about the provision of registration which, as I said, does have certain benefits under the act. There is nothing to stop groups forming. We are simply talking about registration; and, on the advice of the Electoral Commissioner, six months is a period which would be necessary to ensure that any application could be reasonably processed.

Yes, there is a risk that even then it may not be done but, again, I just do not believe that it is good practice to put expectations on the Electoral Commissioner by putting words in the act that say that within two months you can nominate to become a party. I think that any new party that is forming would have the expectation: they have complied with the act and they should therefore be registered. However, on the advice of the Electoral Commissioner that may not be delivered, and I do not think that is good practice.

The Hon. R.D. LAWSON: I think the minister's response—that there is nothing to stop groups forming—is somewhat disingenuous. The question here is not whether we can stop groups forming; the question is whether a group can form and have its name printed on a ballot paper as the banner under which it is standing in an election. This six month rule will impose a barrier that does not presently exist.

I point out that many of the amendments being made—especially the technical ones—arise out of recommendations made by the Electoral Commissioner over the years. I think there were some 23 contained in the Electoral Commissioner's recommendations, and not one of them was the imposition of a six month period, or any other particular period, within which one would have to make an application to register a political party. This is a political issue. This is designed by the government to enhance the prospect of an incumbent government and to reduce the capacity of those who want to register names. This is an age-old tactic. In the old days, they used to prevent people from getting on the roll within a close period to an election, all on the basis that it would be administratively inconvenient to have people making an application at the last minute—and they would all do it at the last minute, etc.

We now accept that people should be able to get on to the roll up to the very last minute before an election, but here we are imposing this artificial and artificially long period of six months to register a political party. It is all about restricting participation and it should not be supported.

The Hon. P. HOLLOWAY: Talk about disingenuous! The honourable member accuses me of being disingenuous—his comment is disingenuous. The only reason the government is putting up this amendment is that the Electoral Commissioner has suggested it. Whether or not this is carried, I do not think it will really make a lot of difference to the government, as such. However, I again make the point that to put expectations on the Electoral Commissioner that she tell us that she may not be able to deliver is not good practice. That is the reason we have put this up, because, as a responsible government, we act on the advice of the commissioner. It was her suggestion that we have this six-month period. Given the time for closing the rolls, this is what she believes—and I made this point earlier in the debate—is a reasonable period, and that is the reason we are choosing it, and for no reason other than that.

If the committee thinks it knows better than the Electoral Commissioner, so be it, but all we can do is put up reasonable amendments based on the best advice available by the person who has to implement this act.

The Hon. A. BRESSINGTON: I rise to indicate that I will be supporting the government on this. The Electoral Commissioner was present at the briefing that I received, and she actually indicated that she requested this particular provision be put in the bill. We have had these debates in this place before, about the Commissioner for Human Rights, the Commissioner for Victims of Crime and the commissioner for this and that. They are put in those positions to be independent and to advise the government, and us, on how the system would work best.

I think that, if we pay people to do these jobs and we require them to advise us of the best way and the best systems that are in place to be able to do that, we should take heed. I do not believe that any of us here—and I could be wrong—actually know exactly what workload or requirements are placed on the Electoral Commissioner and her office to get parties registered and make the election happen and roll out as smoothly as it can. I think it is a little presumptuous of us in here to think we actually know better than the commissioner in that particular area.

The Hon. J.A. DARLEY: I indicate my support for the government on this issue.

The Hon. M. PARNELL: I am glad that fellow crossbenchers have spoken. I will not be supporting the Hon. David Winderlich's position, because I am prepared to accept a brief period, and that is the three month period. However, having heard the crossbench members speak, I will not be dividing on my three month amendment.

The Hon. Mr Winderlich's amendment negatived; the Hon. Mr Parnell's amendment negatived; clause passed.

Clause 12.

The Hon. R.D. LAWSON: This will insert into the provisions relating to registration—and, in particular, section 42—a provision that prohibits the registration of a party which has a name or abbreviation or acronym of the name of a prominent public body or so nearly resembles the name or abbreviation or acronym of the name of a prominent public body that it is likely to be confused with that name.

I have already pointed out to the committee that there is presently before the Electoral Commissioner an application to register the name Save the RAH Party, which I think members of the community would accept refers to the Royal Adelaide Hospital. So, here is a body that is seeking presently to be established.

The purpose of this amendment of the government is to prevent political parties using names of that kind. We believe in maximum political participation and maximum freedom of political expression. We do not believe in closing down opportunities for groups such as the Save the RAH Party from participating in the political process. Therefore, we do not accept that it is appropriate to impose these restrictions that are now being imposed in this clause 12. It is for that reason that we will not be supporting this amendment. We do not believe there is a sufficient need to do so.

The Hon. P. HOLLOWAY: For a start, we have indicated that this amendment would not come into effect until after the election, anyway. So, in relation to any group such as Save the RAH Party, the current provisions of the act would apply, which are exactly the same. The current provisions of the act already say:

(3) An application for the registration of a political party may be refused if, in the opinion of the Electoral Commissioner the name of the party, or the abbreviation (if any) of the name, that it wishes to be registered—

(a) is the name, or an abbreviation or acronym of the name, of a prominent public body, or so nearly resembles the name, or an abbreviation or acronym of the name, of a prominent public body that it is likely to be confused with that name, abbreviation or acronym;

That particular part is not being changed, so rejecting this clause will not change anything. In any case, it is not the government's intention to bring this into effect in any way before the next election, so it would have absolutely no impact whatsoever given the current provision because it does not really change the wording at all.

The only thing that will change in the future following the next election is subsection (3)(b), and probably the new subsection (3)(a). So I think the example the Hon. Robert Lawson gives is not affected in any way by this amendment.

The Hon. R.D. LAWSON: The point is: why should it be permissible for them to stand in 2010 but not in 2014 under the same name?

The Hon. P. HOLLOWAY: But, if the law says they cannot stand in 2014, they cannot stand now, because the law is the same. That part is the same. It is not changed.

The Hon. R.D. LAWSON: I wonder whether the minister could indicate exactly what change is wrought by clause 12.

The Hon. P. HOLLOWAY: I think I have just indicated that. It is really subsection (b). Section 42(3) is effectively section 42(3)(a). What is different about the clause is that we are bringing in new paragraph (b) which stops the use of the word that takes the name of another political party, so it would affect things such as Liberal For Forests or those sorts of—

The Hon. C.V. Schaefer: Country Labor.

The Hon. P. HOLLOWAY: No, it does not do that, because that is the Labor Party. It totally misses the point.

An honourable member interjecting:

The Hon. P. HOLLOWAY: No, it has not let the cat out of the bag. For example, in relation to Liberals For Forests, I would have thought the Liberal Party would not want people feeding off the name Liberal to try to get votes, and I do not think any political party would necessarily like its name used in vain. It is simply to prevent that. That is what is new about this. In relation to the other bodies such as the RAH, as I said, section 42(3)(a) in the current act applies. The wording has not been changed so, if it is not able to stand now under the current act, nothing will change in the future, and vice versa. It is really only paragraph (b) and the new subsection (3)(a) that are changed.

The Hon. M. PARNELL: I want to ask the minister about new paragraph (b). This is the provision that prevents others using the distinctive aspect or part of the name of another political party. The drafting of this provision provides for a note, and the note lists five parties with the word that is regarded as the distinctive word being underlined. My question of the minister is: in relation to my party, would the word 'greens', plural, or 'green', singular, be included as a distinctive element that other parties could not use?

The Hon. P. HOLLOWAY: We are assuming it is not a related political party and we are assuming that the Greens are registered, which they would be. We believe that it would do. We believe that would be in it, so it is then really up to the commissioner, who may refuse. It says:

An application for the registration of a political party may be refused if, in the opinion of the Electoral Commissioner the name of the party, or the abbreviation...of the name, that it wishes to be registered...so nearly resemble a distinctive aspect or part of the name of another political party (not being a related political party).

So, I think that it would apply.

The Hon. M. PARNELL: I thank the minister for his answer. I notice one of the examples that is given in the drafting note is the National Party of Australia SA Inc. Could the minister clarify whether the intention of this section is that any party that had the word 'national' in it, because that is the word that is underlined, would be prohibited from registering with that name, including National Unity, National Socialists—anything in fact with the word 'national' in it?

The Hon. J.S.L. Dawkins: Nationals.

The Hon. M. PARNELL: Nationals (plural).

The Hon. P. HOLLOWAY: That is right, and because they do call themselves the 'Nationals' that is exactly why. Just like the Labor Party is Labor and the Liberal Party is Liberal, they are the proprietary words, if you like. That is the property that we believe ought to be protected, because obviously people using those words who are not genuinely members of those parties are trying to take some advantage, if you like, of the goodwill of the other party. That is why this is proposed.

In relation to the Nationals, again I think that is the brand name. As the Hon. John Dawkins said: the Nationals are the Nationals. We all know who they are and, if someone else is trying to use that name in a way that, in the opinion of the commissioner, so nearly resembles it that it could be misleading, if you like, then she has the right to refuse it, but it is at her discretion. Obviously the word 'national' has more general usage, if you like, than the words 'liberal' or 'labour' and, ultimately, that is why there has to be a discretion.

The Hon. R.D. LAWSON: That is why we are concerned. The Labor Party is the only party which presently has the name 'country' on it. They want to put a mortgage on the word 'country'. They want to use it in relation to Labor. They put a mortgage on the word 'new'. They have registered 'New Labor' and they will object to the New Greens, the Country Greens or the New Australian Democrats. They will be complaining that you have chosen something out of a name which they, as it were, have put a mortgage on.

Our objection to this clause is that this is all about closing down the political process by entrenching existing players, and it might be because we are existing players. No doubt it advantages us but, in principle, we are against closing the field to others by having names registered, mortgaged and made the property of a particular political party, and that is why we will not be supporting this clause.

The Hon. P. HOLLOWAY: It is really nonsense to suggest that the people of this country and this state do not understand. They understand who the Greens, the Labor Party, the Democrats and the Liberal Party are. Anyone else who tries to use a name which is so close to the name of another political party will not be doing so for any purpose other than to try to cash in on that or, of course, it could be done for some sort of subterfuge to try to direct preferences away and, if that is the case, that is going against democratic principles. When voters see the name of the party they wish to vote for, they should be able to vote for that party and not be misled by other parties using a similar name in an attempt to try to cash in on the goodwill, if you like, of an established name.

To suggest that, in some way, this provision would restrict democracy or restrict new parties is nonsense. In the past 20 or 30 years, plenty of new parties have arisen. We have Family First and others. They have established their own brand name. They have been successful on that account. Why should they not be able to have the benefit of that? Why should they, the Greens or any of the major political parties have someone try to cash in on their name which is established and registered?

Surely political parties should have some proprietary rights over their name and its property; to do otherwise can only confuse the electorate. It cannot enhance the democratic process in any way that I can see.

The Hon. DAVID WINDERLICH: I indicate that I will be opposing this clause. I think this is the McDonaldisation of politics. I do not think that these sorts of words, like Democrat, Green, Labor or Liberal, should be owned and should be restricted from use by others. The most common way in which candidates use words like Independent Labor or Real Labor is to make a point, and it is generally people with a Labor background or a Liberal background, whichever government or party they are making a point against.

It is generally people who are disillusioned, arguing that the party whose name they are partly using has strayed from its core beliefs, and they are making a political point and expressing themselves politically. I think there is scope within the act already for the Electoral Commissioner to prevent confusion so that, if somebody wanted to call themselves the Adelaide Labor Party and have 'ALP' appear, it seems to me that there would be plenty of scope for the Electoral Commissioner to refuse that sort of configuration, but for someone to seek to make a political point by using—

The Hon. P. Holloway interjecting:

The Hon. DAVID WINDERLICH: Well, I think the word 'independent' sends a pretty strong signal these days. I believe that we should allow people the freedom to express their arguments and to express their disillusionment with major parties and, in fact, that is probably what this bill is designed to prevent—that freedom of expression, that ability to make a point particularly against an incumbent government of the day.

If it is misleading, the Electoral Commissioner has the ability to deal with things that are misleading or genuinely confusing. I think that parties should have to fight in the political arena for the legitimacy of their name. They should not use legal processes to behave like McDonald's and take ownership of particular concepts that are implied in their name. I think that that is the McDonaldisation of politics, and I oppose it.

The Hon. R.D. LAWSON: The note to this particular clause refers to the Australian Labor Party, and the word 'Labor' is the distinctive aspect of the name of this political party. The minister says 'over the last 30 years'. Well, think of the Democratic Labor Party. There was a party that was valid, strong, vibrant. In fact, I think it may even have had somebody standing in the last Victorian election—

The Hon. David Winderlich interjecting:

The Hon. R.D. LAWSON: And he got elected. You are introducing something here the purpose of which is to stop somebody registering a party like the Democratic Labor Party and coming along and saying, 'We're trying to save you, the Liberals, from Liberals for Forests.' This is all about stopping splinter groups from Labor registering names, and they ought to be able to. They have in the past, and this is about closing down opportunities of that kind.

The Hon. P. HOLLOWAY: The challenge for Mr Lawson is to explain why, back in 2001, he voted for this. When the Hon. Trevor Griffin introduced this bill in 2001, it was supported by the then government and the opposition. I see here that, when the vote was taken, the Hon. Mr Lawson voted for it and the Hon. Mr Lucas, the Hon. Mr Dawkins and so on all voted for it. As it happened, the bill began here and did not get through the lower house.

Members interjecting:

The Hon. P. HOLLOWAY: No; we did not vote against it; in fact, my name is there—I voted for it. There were 16 for and five against, and it went through the upper house. Trevor Griffin introduced it, and it did not have time to get through the lower house, presumably, but it was voted for. It was a government bill that Trevor Griffin introduced, and honourable members voted for it. I think for the record that all the comments the Hon. Mr Lawson has made need to be heavily discounted from the fact that he actually supported this very clause, and the wording is absolutely identical, the same as that back in 2001. Really, who is playing politics here?

The committee divided on the clause:

AYES (12)
Bressington, A. Brokenshire, R.L. Darley, J.A.
Finnigan, B.V. Gago, G.E. Gazzola, J.M.
Holloway, P. (teller) Hood, D.G.E. Hunter, I.K.
Parnell, M. Wortley, R.P. Zollo, C.
NOES (9)
Dawkins, J.S.L. Lawson, R.D. (teller) Lensink, J.M.A.
Lucas, R.I. Ridgway, D.W. Schaefer, C.V.
Stephens, T.J. Wade, S.G. Winderlich, D.N.


Majority of 3 for the ayes.

Clause thus passed.

Progress reported; committee to sit again.

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