Peta Murphy (Dunkley, Australian Labor Party) Share this | Hansard source

Member for Mackellar, that was two minutes over the promised time and five minutes too long. On the government benches are members of the Parliamentary Joint Committee on Human Rights: the member for Mallee, the member for Moore and the member for Curtin. And of course there are members of the government in the Senate, Senator Small and Senator McLachlan, who are also on the committee. And we have sitting at the table an assistant minister who used to be a human rights commissioner and a freedoms commissioner—a freedoms commissioner, no less. Report 14 of 2021 from this parliament's human rights scrutiny committee brought to the attention of the minister and the parliament that this legislation engages with and has the risk of impermissibly limiting the right to participate in public affairs and the right to equality and nondiscrimination.

There's been a lot of yelling in this chamber and a lot of huffing and puffing about the need for this legislation. I haven't heard a government member refer to this report, which government members signed up to, which demolishes the response of the minister to their initial assessment that the bill engages the right to take part in public affairs and the right to equality and nondiscrimination and that it is unclear whether the measure addresses a pressing and substantial concern, will effectively achieve its objectives or will disproportionately impact particular groups, and whether alternative, less rights-restrictive approaches have been considered, which are the only justifications under international human rights law—under covenants that this parliament and this country have signed up to—for limiting those rights.

The committee gave the minister the opportunity to address those concerns, and the minister did in fact respond. But here are the committee's concluding comments: you could limit the right to take part in public affairs and equality and nondiscrimination with the justification of a legitimate objective. I quote from paragraph 2.15 of report 14 of 2021:

… the minister advised that the bill aims to reduce the potential for voter fraud and impersonation, and safeguard public confidence in the electoral process. The minister's advice notes that there is public concern relating to the importance of safeguarding public confidence in the Australian electoral process. To support this the minister states that the Joint Standing Committee on Electoral Matters (JSCEM) stated in its report into the 2019 election that 'multiple voting is frequently the subject of media commentary and social media speculation'. However—

the committee goes on to say—

it is noted that this quote from the JSCEM's report was from the Australian Electoral Commission's submission to that inquiry. In this submission the AEC also stated that 'multiple voting is a very small issue in the context of the actual number of multiple votes', but that 'the perception of multiple voting is an important issue with respect to the integrity of election results'.

And, importantly, the committee noted:

No further information was provided by the minister, such as survey data, to demonstrate that there is currently a lack of public confidence in Australian electoral processes.

So that's argument No. 1 from the government demolished by members of this parliament, including members of the government. The minister also said that the measures were:

… designed to deter voters from intentionally voting more than once. However, the Australian Electoral Commission has noted that the majority of instances of multiple voting are unintentional. The Australian Electoral Commissioner has stated in relation to multiple votes, that the vast majority are cast by 'people over the age of 80 or people who have English as a second language issues or who are confused about the act of voting'.

What was the committee's response?

As such, it is not clear that the measures would deter most instances of multiple voting.

That's another argument from the government demolished by people who are members of this parliament, including the member for Mallee, the member for Moore and the member for Curtin. The report says in paragraph 2.17:

The minister also advised that the bill would help to avoid errors relating to accidental mark-offs against the wrong person by using identity documents to find the person's name and residence.

That's because, according to the minister, in the 2013 election, 'over 18,000 multiple mark-offs' were recorded. The human rights committee of this parliament says:

It is noted that the JSCEM's report stated that 'a significant number of apparent roll mark-offs that would seem to indicate multiple voting incidents is attributable to official error (an issuing officer marking a certified list incorrectly)'. The JSCEM noted that the use of electronic certified lists 'would offer a significant reduction in the official error rate'.

Paragraph 2.18 states:

The minister also advised that, critically, the bill would reduce the risk of electoral fraud in the form of voter impersonation, as requiring voter identification will mean that for those without identification, who must vote via the declaration process, only the first vote cast will be admitted to the scrutiny process.

What does the committee say in response to that?

However, no evidence has been provided as to whether there have been cases of voter impersonation in previous elections. As such, it is not possible to conclude that this issue addresses a pressing or substantial public or social concern.

That's another argument put up by this government demolished. Is there a rational connection to issues? Paragraph 2.2 states:

The minister's response did not address the question as to how voter identification requirements would be effective to prevent people from voting multiple times at different locations. The minister stated that the measures in the bill are designed to deter voters from intentionally voting more than once. Yet, as the Australian Electoral Commissioner has said, the vast majority of multiple votes are cast by the elderly, those with English as a second language or who are confused about the act of voting.

What does the committee say?

As such, it remains unclear how requiring such voters to show identification would prevent them from continuing to cast their vote multiple times (and showing their identification each time they do so). In relation to clerical error, it has also not been established how electoral officials would be less likely to make mistakes in marking voters off the roll if they see an identity document rather than by asking for the name of the elector.

Proportionality? No. The human rights committee demolishes the government's arguments on that as well. Paragraph 2.22 states:

… there is concern about how the measure will operate in practice in relation to certain vulnerable groups. As stated in the initial analysis, requiring proof of identity may have a disproportionate impact on particular groups who may face issues accessing identification documentation or having such documentation on them when voting.

And who are those people? People with no fixed address, people with disability, people of low socio-economic status, people from non-English speaking backgrounds, Aboriginal and Torres Strait Islander peoples and women escaping domestic violence. So when members of the government yell and scream and say Labor is making up all these arguments, that list, endorsed by the human rights committee, with members of this government on it, comes from a 2014 research report on multiple voting and voter identification prepared for the New South Wales Electoral Commission.

The committee also said: 'It's noted that the current declaration form provided by the minister for this legislation doesn't indicate that the provision of such information is optional, and, as such, it is not clear if electors would always understand the optional nature of the provision of some of the information.'

Paragraph 2.24 states:

The minister's response also did not address the questions as to whether consideration has been given to alternative, less rights restrictive, ways of achieving the stated objectives.

That is something I would have thought the former freedoms commissioner would be very interested in. One would think that the Electoral Legislation Amendment (Electoral Offences and Preventing Multiple Voting) Act 2021, commencing on 3 September 2021, was intended to address that issue. So what do we need this bill for? Not for that issue. Paragraph 2.25 addresses this:

Noting the intention of this legislation, which commenced operation less than two months before the current bill was introduced, it is not clear why any concerns regarding multiple voting are not able to be addressed by this new legislation (noting there has been no election since that legislation commenced, and so therefore no opportunity to determine its effectiveness).

Anyway, many instances of markings of multiple voting are as a result of clerical error.

The conclusion of the human rights scrutiny committee of this parliament at paragraph 2.27 is:

… it does not appear to have been demonstrated that seeking to address concerns regarding multiple voting addresses an issue that is pressing and substantial enough to warrant limiting human rights. In relation to the desire to reduce clerical errors, it is not sufficient that a measure simply seeks an outcome regarded as desirable or convenient. Administrative convenience, in and of itself, is unlikely to be sufficient to constitute a legitimate objective for the purposes of international human rights law. Finally, while public confidence in the electoral system is an important objective in a democracy, the minister has not provided any evidence that demonstrates a lack of public confidence, other than referring to 'media commentary and social media speculation' regarding multiple voting.

And I break in to add this thought, which is not in the report: if we were to legislate in response to media commentary and social media speculation, perhaps this Morrison government would have an actual legislative agenda.

Paragraph 2.30 states:

… the minister's response has not established: that the measure seeks to achieve an objective that addresses an issue of public or social concern that is pressing and substantial enough to warrant limiting these rights; that the measure is rationally connected to those objectives; or that it is proportionate. As such, there is a risk that this measure would impermissibly limit the right to participate in public affairs and the right to equality and non-discrimination.

Paragraph 2.33 notes:

… the potential for the bill to disproportionately impact on certain groups (such as Indigenous persons in remote communities, people experiencing homelessness and those fleeing domestic violence), and that it has not been established that there are no less rights restrictive ways to achieve the stated objectives, the committee considers the measure has not been demonstrated to be proportionate to the stated objectives. As such, there is a risk that this measure would impermissibly limit the right to participate in public affairs and the right to equality and non-discrimination.

It's really, really important that those conclusions of this committee of the parliament, made up of Labor, National Party, Liberal Party and Greens members of the parliament in the upper and lower houses, is taken into consideration, particularly because the minister provided to that committee all of the arguments that all of the Liberal and National Party members on that side of the chamber have been putting in defence of this legislation and it demolished all of them. So, when people like the member for Mackellar, the member for Barker and others come into this chamber and rant and rave and accuse Labor of making up arguments for why this bill is unacceptable, undermines democracy, doesn't protect it and doesn't lead to further integrity, remember this report of a very important committee of this parliament.

I expect the member for Mallee, the member for Moore and the member for Curtin to come into this chamber and oppose this legislation on the basis that it impermissibly breaches human rights and undermines democracy in the way the human rights committee has set out. We don't have a national charter of human rights in this country, so we have to rely on engagement with these international covenants that we have signed up to. It is one of the reasons we need a bill of rights in this country—so that legislation like this can be assessed in a coherent rights framework and be identified for what it is and what it does. If nothing else, I urge members of the government to read the report in full and to search their consciences and ideological beliefs and ask themselves, 'Can I really vote for this legislation which undermines democracy and human rights and what Liberals are supposed to believe in, which is not breaching people's ability to—

See this speech in context