Daryl Melham (Banks, Australian Labor Party) Share this | Hansard source

I rise to support the bill before the House. It is a bill which arose out of the Joint Standing Committee on Electoral Matters inquiry into the 2010 federal election. A number of recommendations were made. In particular, this bill implements the government's response to recommendations three, nine, 10, 11, 15, 29 and 30 of the report. I note that recommendations 15 and 29 were unanimous recommendations of the committee. I did table earlier today a copy of the advisory report on this bill to the House. I think it is important to acknowledge—as I did in tabling that report—the role played by the member for Mackellar in the public hearings, because she quite actively pursued a particular angle which changed the views of the committee. I think the views of the committee swung around unanimously to those of the member for Mackellar.

Indeed, the committee's report has made two recommendations to the government to make changes to the bill. I will read them: On page 30, it says:

…a vote savings measure to the procedures to be followed if ballot boxes are opened prematurely. This vote savings measure should incorporate the elements proposed by the AEC to this inquiry and provide that ballot papers that have not been tampered with in any way must be reinstated to the count but otherwise excluded. This savings measure should apply at any stage of the scrutiny to a ballot box that has been unlawfully handled by any person…

Also, as the member for Mackellar pointed out, we recommended an amendment:

…explicitly stipulating that any electoral official who deliberately and unlawfully interferes with a ballot box or ballot papers be subject to the same penalty as any other person who commits this offence.

The current bill contains the earlier recommendations of the committee, which were based on submissions. But I understand that there will be some government amendments, which have been given to me as chair of the committee and, as I understand it, have been given to the shadow minister—the member for Mackellar. They will pick up the committee's unanimous recommendations in the advisory report. The important thing is that, until the member for Mackellar pursued it, the votes would have been not included in the count. I have great confidence in the Electoral Commission—I always have had. That is not to say I have a blind confidence in them. I think the robust interaction over the years between members of the committee and the commissioner has proved very worthwhile.

One of the things that the member for Mackellar pointed out in her second reading speech was that I supported her, and the committee supported her, on tabling the government's legal advice in relation to this area of votes that were excluded as a result of possible tampering or whatever. The Electoral Commission did produce the advice. That is appendix D of the report that we tabled. It is important to read parts of that advice and to see that what the Electoral Commission did was faithfully follow the legal advice that it was provided. Of that, there can be no doubt. This was advice to them of 30 August 2010. This was advice from Bridget Gilmour-Walsh, senior general counsel. But at paragraph 15, it also says:

Mr Peter Lahy, Deputy General Counsel, has read and agrees with this advice.

The summary of the advice is also worth quoting, which is on page 70 of our report:

In the present circumstances, we consider that the better course of action is not to include the ballot papers in the count and to quarantine those papers (although for the reasons we discuss below, it is possible that a court might take a different view)…

…If the discarded votes could affect the outcome of the election, we think it would be appropriate for the Australian Electoral Commission (AEC) to file a petition disputing the election in the court of disputed returns as permitted by s 357. We cannot see any other way of correcting the errors and consider that there is real doubt as to whether s 285 is available in the present circumstances.

All counsel from the Australian Government Solicitor and the commission can consider is the act as it currently stands. The report says later on—and this is independent of the Electoral Commission and it actually verifies this independently to us as members of parliament—that the commission was faithfully following the legal advice that is was given. And they do seek to distinguish the matter of Mitchell v Bailey, which was in relation to formal ballot papers and challenges to the formality of ballot papers.

What happened at the last election, in two divisions, was the premature opening of postal votes. The committee is at one with the member for Mackellar that, unless tampering can be shown, those votes should go in. There is a slight difference between the member for Mackellar, me and others in relation to whether these votes should actually be counted. The only votes that we say should be counted are those that are included in the count. The others should be parcelled up, separate and identified, but they should not be included in the count unless the Court of Disputed Returns or the Australian Electoral Office rules otherwise. And, even if the Australian Electoral Office rules they are inadmissible, those votes are protected and the secrecy of those votes is paramount. The argument, and general electoral practice, is that, if you are not disputing the informality but you have got ballot papers inside postal vote applications and things like that, their secrecy is preserved unless they are ordered in.

I think it is worth putting into the debate that the proposed section that will deal with this is that the AEO must decide that a ballot paper is to be included in the scrutiny under part 18 unless the AEO is satisfied that the ballot paper has been fraudulently altered or otherwise interfered with so as not to reflect the voter's intention. I think that adequately picks up the concern of the member for Mackellar and the concerns of the whole of the committee. What it would mean is that, if there is inadvertent error, the votes go in unless you can show that they have been tampered with or altered. I think that is a vast improvement. What it shows is that, despite the fact that we do not agree on other aspects, when it comes to enfranchisement and a whole range of other things, the committee have managed to reach agreement on other aspects of this legislation and in our report and in previous reports.

Some of the differences we have are philosophical differences. For the life of me, I was gobsmacked when the member for Mackellar said we should have prepoll polling for only 12 days, not 19 days. Prepoll voting is overtaking postal voting as a preferred method of voting for those people who are not around on election day. It is like expanding the vote of the day to a longer period to allow more people to utilise it. Seven fewer days could result in a lot fewer people having the vote. As I said, it is like an election day exercise except that it is not on election day. I cannot understand this obsession of the member for Mackellar and some others with having that much less prepoll voting.

The recommendations that we made and that the government has endorsed off the back of some submissions from the commission to do with not having prepoll voting before four days and one less day on postal voting are to allow a better process for the election situation. In other words, instead of having handwritten ballot papers because someone rolls up a day or two after nominations close, the Electoral Office will be able to circulate the ballot papers for all of the electorates, for all the subdivisions and particular places, over the weekend, amongst other things. There will not be an argument towards the end of the situation—and I can tell you that a lot of postal vote applications come in after the event and they are lost in the process. By tightening those timetables a better processing situation occurs and there is more urgency from the political parties, the Electoral Office and a whole range of other things.

The other thing I really want to counter—and again I am really gobsmacked—is the obsession with not allowing information to be passed from the tax office to the Australian Electoral Office. I refer members to page 38 of the report, which details in its conclusions what this is all about. It is about maintaining the integrity of rolls—checking information and comparing information. When you listen to the member for Mackellar and those opposite who rail against this position, you would think that the ATO does not share any of its information with anyone, that it is sacrosanct and 'don't go there'. Let me read from the report:

2.73 The committee maintains the view it expressed in its 2010 federal election report that the ATO should be permitted to provide relevant data to the AEC for the purposes of facilitating enrolment. This is a logical extension of existing continuous roll update processes and direct enrolment using third party information which the committee has supported in previous bill inquiries. In addition, these proposed amendments have been discussed and agreed with the ATO and the Treasury.

2.74 The Electoral Commissioner outlined to the committee that a number of government agencies have access to data from the ATO and provided examples. The list of government entities that can receive protected information from taxation officers for specific purposes (defined in Section 355 of the Taxation Administration Act) includes, but is not limited to:

2.75 The addition of the AEC to this list for the specific purpose of maintaining the veracity of the electoral roll is appropriate and will not undermine roll integrity.

That is something I assert very, very strongly: we want integrity in the electoral roll and we have integrity in the electoral roll. And when you turn around and talk about multiple votes, I would say that I have been on this parliamentary committee on and off for the 23 years I have been in the parliament, so I have heard a lot of allegations. I have heard about multiple votes. Each time we looked at multiple votes—indeed, the last two times—we heard that about 80 per cent of them were elderly people, a lot of them in nursing homes, who had voted when the mobile polling booth had come. Their children and other relatives had gotten them postal vote applications, thinking that they had not voted. That is going to continue under whatever system you have while you have mobile polling voting occurring in aged-care institutions, and postal voting situations. So it is not directly related to the concerns that the member for Mackellar has. There have been people in the past who have been prosecuted, and they should be prosecuted if there is an attempt to manipulate. It has been a long time since—

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