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

The amendments the House is discussing arise out of the report by the Joint Standing Committee on Electoral Matters following its examination of the Electoral and Referendum Amendment (Improving Electoral Administration) Bill. I acknowledge that the member for Mackellar was largely successful in moving other members of the committee to her views, save for one area, which she mentioned in her speech. We just agree to disagree on that. The amendments before the House certainly come down in favour of enfranchisement as against disenfranchisement, which would not have been the case had the bill stood in its original form. This is an example of our having constructive discussion, and I pay tribute to the member for Mackellar in that regard.

The relevant description is at point 9, which says that the AEO must decide that an envelope is to be included in the preliminary scrutiny conducted in accordance with schedule 3, unless the AEO is satisfied that the envelope has been fraudulently altered. So, indeed, it has reversed the onus of proof. The AEO has to be satisfied that it was fraudulently altered. If in doubt, the votes are included, and I think that is how it should be. Now, they are parcelled up if there is a suspicion of fraud—they are put to one side. On the issue of whether they should be counted, I am strongly in the camp that says those particular votes should not be counted, because that has been the convention and the way it has been done in electoral practice and, if you count them, you can actually influence decision makers. It has always been the global votes. If you can establish that there are 10 fraudulent votes and the margin is, say, three, that will give you the ability to appeal to a Court of Disputed Returns or whatever. It is actually easier to not count the votes.

But the point of counting the votes is that the only time votes are counted or looked at is when there is a scrutiny and a debate about an informal vote. In the McEwen case, the then returning officer had taken a hard line in relation to formality, but some 400 votes were subsequently included in the count by the court at a later date. So here, as long as the votes are preserved, as long as they can be included in a subsequent count or audit by the Court of Disputed Returns—and there can be no dispute that that is what is done; they are wrapped up, they are parcelled, the instructions are all there for the returning officer and the Australian electoral officer—then those votes are there in the event of a later challenge. As I said, historically, if you have a postal vote or votes in envelopes, and signatures are challenged or other things mean those votes are put to one side, those votes are never opened up. There is never an indicative count of those particular votes because they are excluded from the count. So, when it comes to a declaration vote, if there is a question mark over a signature because of a postal vote application, or the signature of a witness, none of those votes are opened up and exposed to scrutineers.

There is another point on which I disagree with the member for Mackellar. My understanding is that scrutineers are available, at any stage of the process, for the candidates. You just need to go along to the particular counting area. Now, if I am wrong about that, I will admit it, but my understanding is that the divisional returning officer and candidates are notified of all stages of the process and they are able to provide scrutineers. Normally, what happens is people do not provide scrutineers. I know in many instances I have trusted my returning officers because I have great faith in them and I have not sent scrutineers along. But I do not know of any process where scrutineers are excluded if a count is taking place or if there is a check of votes. We can probably get this clarified in further discussion and debate.

In relation to the penalties, I agree, and we made the recommendation, that the penalty that applies to officers should be the same as that which applies to other people. We are in agreement on that. I think the one area we still disagree on in principle—but I respect that the opposition are supporting the amendments in any event—is whether the votes are counted at an early stage of the process or left till later, in the event that a determination is made. (Time expired)

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