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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-11-28 Daily Xml
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ELECTORAL (PREFERENTIAL VOTING REFORM) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 13 November 2013.)

The Hon. J.A. DARLEY (10:36): I rise very briefly to make a few comments on the issue of electoral reform. There is no question that even at this late hour on the last sitting day of the year, discussions are still taking place about how best to deal with electoral reforms. My position is this: I support optional preferential voting. It represents the fairest and most democratic system of voting. It will eliminate the dodgy backdoor—

The PRESIDENT: Order, the Hon. Mr Darley! My advice is that you have already spoken on this one and you did not seek leave to conclude. Are there any further speakers?

The Hon. M. PARNELL (10:37): It was a late night and people are perhaps a bit confused about where we are. We are on the Hon. John Darley's bill which, as I have alluded to in previous debates on this general topic of electoral reform, is very similar to the bill that I also have on the notice paper. The only difference between the Darley optional preferential voting bill and the Greens' bill is that, as well as having the option to vote for as many or as few candidates above the line (that is common to both the bills), the Darley bill has the additional ability for people to allocate preferences optionally below the line. In other words, rather than have to fill out all of the 50, 60 or 70 squares below the line, under the Darley bill you will be able to number as many or as few squares as you want.

Because the bill is very similar to the Greens' bill, the Greens will be supporting the Darley bill, but I just want to put a couple of observations on the record in relation to how this debate has progressed and the various negotiations that have been happening behind the scenes. The first thing to note is that, at a meeting yesterday, which was attended by representatives of pretty much all parties, the Electoral Commissioner was able to expand a little bit on concerns that she had expressed in writing about some of the potential difficulties of introducing optional preferential voting so close to the state election.

I think it is fair to say that the commissioner reiterated concerns she had previously had in relation to, firstly, accessing a relevant computer program, and, secondly, having that program audited so as to be able to legally rely on it for the count on the legislative assembly ballot. What also became clear through this briefing yesterday was that up until 1993 all ballots in South Australia for the Legislative Council were counted manually. In fact, for the 100 and whatever years previously, every election had been counted manually.

I am not advocating that the Greens' preference is to automatically revert to a manual count, but we need to get in perspective the issues raised by the Electoral Commissioner so that we have an understanding of how significant are these potential barriers and whether they can be overcome. The first thing, I think, for people to realise is that whether it is the Darley OPV bill or whether it is the Greens' OPV bill, we know from experience interstate with other electoral systems that the vast majority of people will continue to do what they have always done; that is, they will vote above the line rather than below the line. At present, it is something like 97 per cent of voters vote above the line.

When you bring in optional preferential voting, there is no evidence that the proportion of people will change, but let's assume that it does change—let's say that there is an extra handful of people who decide, under the Darley bill, that they now have the ability to vote below the line but without numbering every square. Maybe some more people will do that; maybe it might go to 95 per cent vote above the line and 5 per cent vote below the line. The importance of that figure is that, even for people who do vote above the line, it is clear from interstate experience, such as in New South Wales, that the majority of them will still just put '1'. Generally, the how-to-vote cards of candidates in relation to upper house voting will say, 'Just vote 1.'

So, the vast bulk of the task of counting votes in the Legislative Council will be putting them in piles, having a look at where the No. 1 square is above the line and putting it into a pile. You then count the number of ballot papers in that pile. That is the vast bulk of the task. On that basis, there will be a very clear idea on the night of the election who are the successful candidates.

But that is not the whole of the task, as we know; there will be the need to count people who vote more than one square above the line and, under the Darley model, people who vote fewer than the full number of squares below the line; they will still need to be manually counted. But if we do, in round figures, assume that it is only 5 per cent of the population for whom that applies, on the basis of South Australia having 1.1 million voters, we are talking at around 50,000 people whose ballot paper will need to be manually counted or put into a computer program, a relatively small number. From my perspective, if resources are allocated to the task of counting those 50,000 votes, it will be possible for us to have the result of the Legislative Council election in a timely manner. I do not accept the idea that it is too hard.

The Greens will be supporting this bill. Members who are concerned about the things the Electoral Commissioner might have said, and think that perhaps it is irresponsible to be proceeding with this when the Electoral Commissioner has expressed some concerns, I think the approach would be to look at it this way: within government, there are the resources of the various departments, such as the Attorney-General's Department; at officer level, those people can engage with officers of the South Australian Electoral Commissioner and they can sort out these problems.

If for whatever reason they find they are unable to sort out these problems, with this being the last scheduled day of sitting, the government will be able to make a call whether the legislation should be proclaimed to come into operation for this next election or whether it should be deferred to later. If we do not pass these bills now, the option is off the table: optional preferential voting is off the table if we do not pass it through the Legislative Council today. So, if people are serious about getting the best possible voting system—the one that just about everyone agrees is the most democratic, one that we know is used elsewhere and one that we know is capable of delivering an election outcome that is fairer than the status quo—we need to pass this bill now.

I will be voting for the Darley bill, and I hope that, when my bill comes up, people vote for that as well. I am happy to leave it to the executive to work out whether the difficulties that have been expressed are insurmountable. I do not believe they are, but I think that it would be irresponsible for us not to at least to have this option on the table, so that is why the Greens will be supporting the Hon. John Darley's bill.

The Hon. S.G. WADE (10:44): I thought it might be helpful if I were to put on the record some of the factors that have weighed on the mind of members of the Liberal opposition. The Hon Mark Parnell made two points which, if you like, might provide a framework for my comments. The first comment—and I ask the honourable member to forgive me if I misquote him—

The Hon. M. Parnell: I will pick you up if you do.

The Hon. S.G. WADE: Feel free to edit as we go. My understanding is that the Hon. Mark Parnell suggested that just about everyone considers optional preferential as the most democratic counting system for the Legislative Council. On behalf of the Liberal opposition, I would say that we are still agnostic. We have given a public commitment, at a CEDA forum in October and at a number of forums since, that we are keen to actively engage a review of electoral systems that could be used by this place; in relation to that, OPV is one of them.

I think it would be fair to say that the Attorney-General is perhaps more interested in the Saint-Laguë method rather than OPV. For my party, we will excuse ourselves from just about everyone because we actually believe that we should do due diligence, and properly consider all the options that this parliament could consider for the electoral system of this place. We do not believe that we can do that job properly in the very short period between the federal election in early September and the election in March next year.

The other impression I got from the Hon. Mark Parnell's contribution was that the Electoral Commissioner was concerned about reform at this stage. I have had a letter, a personal briefing from the commissioner, and the benefit of another briefing (thanks to the good offices of the Attorney-General) from the commissioner yesterday, and I think it would be fair to say that the Hon. Mark Parnell's comments are, in my view, a significant understatement.

In that context, I would like to quote from the letter I referred to. The letter the Electoral Commissioner sent me was dated 5 November. It was actually about the Parnell bill, but the comments still apply to OPV; in fact, I think it would be fair to say that the Electoral Commissioner thought that the challenges she is facing in relation to OPV are probably stronger in relation to the Darley bill than to the Parnell bill.

Be that as it may, these were comments about optional preferential voting, and they were made as recently as 5 November. The commissioner wrote to me on 5 November in response to my correspondence of late October seeking her views on the Electoral (Optional Preferential Voting) Amendment Bill 2013, introduced by the Hon. Mark Parnell, and I seek the indulgence of the council to quote three or four paragraphs from her letter. She raises three main areas of concern: one is in relation to formality, another is in relation to computer counting, and another is in relation to computer awareness and education.

However, one which I think indicates that this is more than just an issue of concern for the Electoral Commissioner, and is a fundamental issue for her in terms of the integrity of the electoral system, is reflected in the section where she talks about computer counting. I quote:

The count software we use for counting the Legislative Council ballot papers is owned by the Australian Electoral Commission (AEC). ECSA has a license agreement to use the software but changes would need to be effected by the AEC as they own the intellectual property.

The current version of the count software has been accredited by the Australian National Audit Office (ANAO). This satisfies the requirement of section 96B(3) of the Act and I have therefore approved the use of the software in previous elections.

A key element of electoral administration is that any computer programs used are fully audited and tested to ensure that it would produce the same results as it would if the count was conducted manually.

The timing of this legislative change (November 2013) would not allow a proper audit of any changes to the count software to happen prior to the State Election in March 2014. The AEC have confirmed that there would be considerable changes to coding required and it would take some months for the ANAO to certify the system.

As Electoral Commissioner, I would not be comfortable using a system that did not comply with best practice. If a full audit and testing regime is not conducted on any count software, I would not approve it for use.

Fortunately, that letter arrived before I had the personal briefing with the commissioner, so I took the opportunity to clarify what she meant. She mentioned in paragraph 2 that under 96B(3) of the act she is required to approve a computer program. In paragraph 5 she said, 'I would not approve it for use.' I was clarifying that if we were to pass a bill like the Parnell bill (similar issues if not worse arise in relation to the Darley bill), would she approve the use of the program? Of course, it draws our attention to the act itself. In 96B(1) it states:

The Electoral Commissioner may approve a computer program to carry out steps involved in the scrutiny of votes in an election.

She is not compelled but she 'may'. In 96D(1) it states:

An approved computer program may, if the Electoral Commissioner so determines, be used in the scrutiny of votes in an election.

Putting those two together, my understanding was that there are two approvals that the commissioner would be required to give. The advice I was given by the commissioner is that she would not give approval under the act. What she did make clear in both this letter and in my briefing was that she would undertake a manual count if this legislation was passed.

My understanding from the personal briefing in early November was that the commissioner's advice was that a manual count might take four weeks and, if there was a need for a recount, it would take another four weeks. In the briefing with a range of Legislative Council members yesterday, I think the commissioner advised that it would be difficult at this stage to determine how long each of those steps would take; it would depend on how many candidates and how many groups were in the field.

However, be that as it may, we are talking about weeks and months of potential delay if we were to pass either of these bills, and that would result, in my view, in the totally unacceptable situation of the South Australian community being forced to wait for a manual count process. I can assure you that businesses in South Australia hate uncertainty and if we have an incoming government being delayed because this council decided to—

The Hon. R.P. Wortley interjecting:

The Hon. S.G. WADE: Excuse me, I think I have the call.

The Hon. R.P. Wortley interjecting:

The PRESIDENT: I know you do have the call. The Hon. Mr Wade.

The Hon. S.G. WADE: If I could just reiterate that point, because the Hon. Russell Wortley seems to be failing to understand this. The electoral system produces whatever members the people of South Australia vote for. It is the members of the other place, not this place, who will determine the government. The government in that place actually needs this council to meet to pass legislation.

I can assure you that if we are entrusted with the confidence of the people at the next election, we will not tolerate a two-month delay because this council decided it would ignore the advice of the Electoral Commissioner—not simply concerns—she is saying she would not approve a computer program that would be needed to do a computer count, a timely count for this council. That would raise a number of significant concerns for the formation of the next parliament.

The only positive benefit I can see is that we might have the Hon. John Gazzola in the chair as President for longer. Be that as it may, this opposition will not be supporting either of the OPV bills, not because we oppose the idea—we may yet join the team of just about everyone who loves the OPV—but at this stage we are agnostic. We will not be supporting this legislation because we believe neither this bill nor the other bill that is on the Notice Paper have been given due consideration.

Debate adjourned on motion of Hon. G.A. Kandelaars.

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