Wednesday, 2 March 2011
Electoral and Referendum Amendment (Enrolment and Prisoner Voting) Bill 2010
Debate resumed from 24 November 2010, on motion by Mr Gray:
That this bill be now read a second time.
The Electoral and Referendum Amendment (Enrolment and Prisoner Voting) Bill 2010 makes a number of undesirable changes to the electoral laws following the High Court judgments in relation to the timing of the closing of rolls and prisoner voting.
There are two minor non-controversial amendments which deal, firstly, with a prisoner being able to remain on the electoral roll, even if they are prevented from voting and, secondly, there is merely an insertion in the interpretive provision to ensure that references in the Electoral Act to an election for a division or similar expressions can operate in the event of a half-Senate election held independently from an election for the House of Representatives. The opposition has no problem with those two non-controversial amendments, but it certainly does have concerns with the two issues dealing with prisoner voting and with the closure of the rolls.
I will begin by talking about the closure of the rolls and how the assertions that are being made—that somehow people were excluded from voting to a worse extent than under the previous legislation—is simply not true. In 2006 the then government enacted legislation saying that the rolls would close for new enrolments at 8 pm on the day that the writs were issued, and, for changes in existing enrolments, three days after the issue of the writs. It did so because, notwithstanding the concerns regarding potential disenfranchisement with an early close of rolls, the government was concerned about the potential for electoral fraud associated with high levels of enrolment activity during the existing seven-day period.
The facts were these: in 2004 the number of transactions that the AEC had to deal with concerning enrolment and changing of addresses was 520,000. In 2007, after the change to close the electoral roll earlier, that number dropped to 263,000. This enabled the AEC to deal with those in a more efficient and accurate fashion. But it is important to note that together with the change in the legislation the government made money available so that the AEC could conduct a much more aggressive campaign to get people to enrol early and in a timely way. It is well to remember that under the existing legislation it is the obligation of an individual to enrol once they attain the age of 18 or become a citizen. That is an imperative, and it is thought of sufficiently seriously that it is a criminal offence not to do so.
So it is most important when we are talking about this issue to realise that it is not about the rush to try to get people on the roll at the last moment—where you can have integrity issues and you can have stacking out in marginal seats with people putting themselves onto the roll at the last minute—but about the fact that you have a prolonged campaign to see that people enrol in a proper time. When the number of transactions dropped to 263,000 that was the result of a 12-month campaign conducted by the Australian Electoral Office.
Even more important is this: in 2004, when there were an extra seven days for enrolling as a new enrollee, and an additional three days to get your address transferred, 168,394 people missed the deadline with that longer period. But with the shorter deadline—that is, when the writs are issued you have got to be on by eight o’clock that day if you are a new enrollee or you have got three days to change your address—we only had 100,370 people who missed the deadline. Not only did we see fewer transactions we actually saw a drop in the number of people who tried to enrol and were unsuccessful because they had missed the deadline. This is clearly because there was a strong campaign to get people back on the roll, and to get them enrolled in a timely fashion. In 2010—
The easiest one to cite is when Neville Wran changed to optional preferential voting in New South Wales because he saw that by conducting three-cornered contests with compulsory preferences the Liberal and National parties were able to defeat Labor candidates. So Labor introduced optional preferential voting to prevent those three-cornered contests and, indeed, they were very successful—so much so that Queensland followed that model, and it worked for them. But now that the coalition in Queensland has become a single entity, Ms Bligh, who finds that the Green preferences are now working against her, is looking to change the legislation to go back to compulsory preferential because it will assist her politically. So when Mr Danby likes to interject and write his articles—
The member for Melbourne Ports is in fact espousing a very political agenda, one that is well known. He is quite a good numbers man at that too. But if I go back to the point, the changes that were made in fact gave the roll more integrity. It enabled the AEC to deal more effectively with a reduced number of last-minute changes and therefore they were able to scrutinise them more thoroughly. And of course the number of people who were cut off was fewer than when there was a longer period. It is a bit like the deadline theory. When people are writing articles, as perhaps the member for Melbourne Ports and others do, if they have got a decent deadline they usually meet it but, if it is prolonged, they put it off and put it off. So the message that we sent out was one that was acceptable.
When we look at the High Court decisions that related to the question of the difference in the time made available and at the case of Rowe and the Commonwealth, we see that there were some strong decisions given by the dissenting judges. In the Rowe case, it was interesting that although there were seven judges sitting, there were only six judgments written. Three judgments were written that supported the plaintiff and the 2006 provisions were struck down, and there were three separate judgments written saying that they were valid enactments and should stand. Interestingly, the two prevailing judgments that were very strong dissenting judgments in the Roach case were also very strong judgments in the Rowe case as well. The judges were Justice Hayne and Justice Heydon.
The arguments put forth as to why the time available was no longer satisfactory, in the case of the four judges who decided that way, were effectively answered by the dissenting judges. I might say that very often we do see, particularly in the High Court where the court is not bound by previous decisions, that the dissenting point of view can ultimately become the prevailing point of view. So I think that in the question of arguing the legal case, it has got some way to go.
I turn now to the question of prisoners and the situation where prisoners have been excluded from the vote both at the state level and at the Commonwealth level. If you look at the state situation, each state is different. In New South Wales, if you have a custodial sentence of one year or more, you are excluded. In Victoria, it is five years or more. In Queensland, any prison sentence will exclude you. In Western Australia, it is one year or more. South Australia has no restriction and, indeed, your address for voting can be the prison itself, and in Tasmania it is three years or more.
In the Commonwealth, it began as one year or more. It then rose to five years when the Labor Party changed it in 1983—presumably, they thought more prisoners would vote for them. In 1995 the language was changed slightly but it was still five years, and then in 2004 we went back to three years. In 2006, we said that anyone with a custodial sentence—and that does not mean anyone who has got a suspended sentence—should be excluded from the roll.
If you then look at the logic of the government wanting to return to the three-year period, it really does not have any strong constitutional connection to do so. I will certainly argue, and the opposition would certainly argue, that if you look at section 44 of the Constitution, which states that if one of us were to be convicted of a crime which had a one-year imprisonment attached to it, we would be out. It would seem to me that we should be making a connection and should be following that one-year period and, accordingly, when we get to the question of consideration in detail I will be moving some amendments to that effect.
I would like to return again to the question for a moment of the change in the closing of the rolls and what our attitude to it will be on this bill. We are not moving an amendment to this part of the bill but are reserving the right to look at it again when in government. In support of that, I would like to quote Justice Heydon’s judgment. I said that very often a dissenting judgment can become the prevailing point of view because judgments in the High Court are not binding. In answer to the question of an unconvincing distinction between the allegedly invalid and admittedly valid sections—that is: why is the 2004 provision for a number of days you have to enrol valid and the 2006 amendment not valid?—Justice Heydon said:
The first plaintiff’s argument was that the provisions in force before the 2006 Act that gave her five more working days to enrol than the impugned provisions introduced in 2006 were constitutionally valid … the second plaintiff’s argument was that the provisions in force before the 2006 Act giving him two more working days to transfer his enrolment than the impugned provisions … were constitutionally valid—
but argued that the 2006 ones were not. Heydon said:
It is not possible to infer from the requirement in ss 7 and 24 of the Constitution that the Houses of Parliament be “chosen by the people” that these temporal differences are of such crucial decisiveness as to mark the difference between validity and invalidity. Differences of this type are in a sense arbitrary, but they are characteristic of the choices which legislators make, and have to make. It is unlikely that the fundamental norms underlying the Constitution and reflected in its language would require the conclusion that one regime was constitutionally valid while the other was invalid.
He went on to say that the plaintiffs’ arguments do not remedy the problems that they said that the 2006 provisions caused. He said:
… they did not demonstrate that the difficulties of all or any of these classes would be overcome to any significant degree by extending for five working days the period of enrolment and for two working days the period for transferring enrolment.
That indeed is borne out by those figures I gave earlier that showed that fewer people were in fact denied enrolment under the 2006 provisions than under the 2004 provisions. Heydon said:
The plaintiffs say that the impugned provisions are void because they fix periods which cause a “substantial” number of persons to be disenfranchised.
Again, I would quote those figures: 186,000 in 2004 and only 100,000 in 2007. Heydon went on to say:
On the plaintiffs’ arguments, the disenfranchised only arises because a “substantial” number of people choose to disobey laws compelling them to claim or transfer enrolment, laws which the plaintiffs concede are valid.
The plaintiffs’ arguments could not work if it were only they who had disobeyed the laws, because two is not a sufficiently substantial number. The laws alleged to be invalid and the laws conceded to be valid are, however, part of a single integrated scheme. The constitutional validity of some laws in that scheme cannot turn on the number of people who choose to disobey other concededly valid laws enacted as part of that scheme. The validity of the impugned provisions cannot wane or wax as the number of persons who fail to comply with their statutory duties rises or falls. Substantial disobedience to laws validly enacted under a power to do so in the Constitution (in this instance s 51(xxxvi)) cannot render invalid other laws enacted under that power. So to hold would subvert not only the validly enacted laws, but also the Constitution under which they were validly enacted.
It is a pretty solid and persuasive judgment that Heydon has given. As I said, although the decision was seven judges and a 4-3 split, there were in fact only three judgments written in favour and three judgments written as dissenting judgments.
When we come to consideration in detail, I will be looking at the number of prisoners who were serving a sentence in June 2006 and at the question of just the sort of persons who would be entitled to vote under the changes that will be made by this legislation. I can say, to foreshadow the sorts of arguments I will be putting to support my amendments, that in 2006 there were 20,209 prisoners in Australian prisons who were serving a sentence and that 35 per cent of prisoners were serving a sentence of two years or less.
The sorts of people the government wants to vote include one person who has a two-year jail sentence for aggravated burglary, false imprisonment, armed robbery and theft. The victim of the attack was tied to a chair with an electrical cord, doused with kerosene, forced to eat dog food and hit over the head with a broom handle. The attacker stole a number of items from the man and forced him to disclose his ATM PIN before robbing his bank account of $300. Under the provisions introduced by the government in 2006 that man would be denied a vote. Under the amendments by the Labor Party that this bill brings in, that person is entitled to vote. Equally, a person who has a two-year sentence for possessing, accessing and transmitting child pornography will be entitled to vote. This particular person was among 19 men arrested in Australia by the Australian Federal Police as part of a 12-month global child abuse investigation. The charges related to more than 10,000 images and 250 videos. Another is a man who was given a 2½-year sentence for indecent dealings with children under 14 years of age, a teacher who sexually abused three young boys at school on camping trips in Western Australia. A child was lured into an office block where they were physically and very badly abused. Another boy was assaulted in a tent on a camping trip during which the offender was the only adult. This is the sort of person who will be allowed to vote under the government’s legislation but would be deprived of a vote under the legislation that was passed in 2006.
It is important to note, I think, that when we go back to the High Court judgments, and we look at the sorts of arguments in both the majority judgments and the dissenting judgments, again and again the question comes up of whether or not there is an ability to make the case that a person who is entitled to be part of the community has committed an offence which marks them out as being, rightly, deprived of part of that community involvement—that is, having the right to vote. It was clearly marked out that taking away the right to vote was not an additional punishment imposed by federal law on top of the breach of a state law but rather a question of whether or not the offence that was committed was sufficient to justify a person losing that community involvement, being the right to vote.
In this entire question of changing the laws—and I note that there is a new bill being introduced this morning that will again change the rules with regard to provisional votes—one cannot help but see that at every move there is a political motive behind it rather than one which is concerned with the integrity of the roll. There are other questions that are coming up that are being discussed, with the New South Wales and Victorian governments moving to the position of having automatic enrolment. That will come from sources such as the RTA and other bodies of data which are held but not gathered together for the purpose of enrolment. The practice in New South Wales will be that the person or people will be automatically added to the roll and then they will be sent a letter. It will be the case not that if they respond, they will remain on the roll but that if they fail to respond, they will remain on the roll opening up, again, the question of the integrity of the roll and its abuse to a great extent.
I must say that this very morning we were having a hearing relating to these points and there was no satisfactory answer given as to why data collected for one purpose—and full of errors, which can be easily demonstrated—should be transferred and used to add people to the roll without them ever having to apply. Surely the right to vote is sufficiently important and sufficiently sacrosanct in the sense that it cannot be treated as a commodity; it must be treated as an individual applying to vote and complying with the laws as they are set out. So, as we move on this path, as I said, I will be moving amendments in the consideration in detail stage to the question of the term of imprisonment that should apply to mean that a prisoner is not able to vote. But we agree that the prisoner should remain on the roll.
With regard to the question of the earlier closure of the rolls, which was brought in in the 2006 legislation, I would simply say that the strong arguments put forward by Justices Hayne and Heydon in particular, which very distinctively counter the judgment that is put forward in the majority judgment of the court on the issue of Rowe, will make us able to consider our position in government about that question.
I will conclude on the point regarding the one-year period. Even the majority judgment contained a statement on that. I go to the judgment of Gummow, Kirby and Crennan, dealing with section 44. They say:
The Commonwealth submits that whatever implication or principle may be evident in the grounds in s 44(ii) for disqualification of senators and members, and of candidates for election, s 44(ii) is disconnected from consideration of the validity of the denial by s 93(8AA) of the exercise of the franchise.
They then say:
That submission should be rejected as being too wide.Not only must the Constitution be read as a whole, but an understanding of its text and structure may be assisted by reference to the systems of representative government with which the framers were most familiar as colonial politicians. These do not necessarily limit or control the evolution of the constitutional requirements to which reference has been made.
In other words, that says that we should be looking at constitutional issues as a whole. Therefore, it is perfectly reasonable for the opposition to say, as it does, that exclusion from the right to vote does have a connection to the exclusion of a candidate from being able to be elected or, once elected, sit. The provision of one year would be consistent and, in the eye of a reasonable man, would be an amendment that I would hope the government would look at in a favourable light because it does bring about a more holistic approach to when someone can or cannot be a member of this House, when someone can be elected to this House and when someone is entitled to vote for a member to come to this House—and the Senate.
I wish the member for Mackellar’s arguments were as elegant as the way she is normally dressed when she comes into this House. They are not. What she describes as political, in my view, is clearly ethical. We have a compulsory voting system in Australia. The problem facing the Australian Electoral Commission and any democrat in Australia is the fact that 2.5 million Australians did not participate in the electoral system by not voting at the last election. That is an absolute scandal as far as democracy is concerned in this country, particularly given the fact that we have a compulsory voting system. Fewer and fewer Australians are participating in our democracy because of all of the kinds of traps that we have set deliberately and inadvertently for them which sees that they are excluded.
The integrity of the roll cited by the member for Mackellar is a code word for the determination of the opposition—the Liberal Party—to see that a non-evidence based proscription of people from voting excludes various categories of people. No evidence was adduced during the entire period from 1998 to 2006, when I was on the Joint Select Committee on Electoral Matters, that there was any substantial democratic violation of the integrity of the roll. The member for Mackellar referred to people enrolling in marginal seats. This is absolute piffle. Between 1990 and 2001, for instance, there were six electoral events—one of them a referendum and five elections. At those six events there was a total of 72 million votes recorded. The Australian Electoral Commission found that there were 72 proven cases of electoral fraud in that entire period of time—one per million. This is not the evidence on which to exclude large swathes of Australian people who are meant to be involved in a compulsory and democratic voting system—or attendance system it would be better referred to because you do not have to vote; you have to attend the elections and have your name crossed off.
The main purpose of this Electoral and Referendum Amendment (Enrolment and Prisoner Voting) Bill 2010 is to amend the Commonwealth Electoral Act 1918 and the Referendum (Machinery Provisions) Act 1984 as to fix the seventh day after the issuing of the writs as the date of the close of the roll, to reinstate the constitutionally mandated right for prisoners serving less than a three-year term of imprisonment while excluding those whose term of imprisonment is three years or longer and to provide that all prisoners otherwise eligible can remain on or join the electoral roll.
The basis of the government’s policy commitment stems in part from the recommendation on prisoner voting made by the Joint Select Committee on Electoral Matters in its June 2009 inquiry into the conduct of the 2007 election. The proposed changes in this bill regarding prisoner voting amends section 98AA of the Commonwealth Electoral Act 1918 so that it stipulates that prisoners serving a term of imprisonment for three years or more cannot vote in the House of Representatives and Senate elections. This provision would replace the current unconstitutional provision in which the legislation seeks to prevent anyone serving any term of imprisonment from voting.
Turning to the early closure of the roll, the member for Mackellar made a great deal of the fact that there were only 100,000 people at the 2007 election who missed out on getting their vote. The first principle is that we have a compulsory voting system. The fact that they missed out is the disgrace, not that there were only 100,000 of them. The reason for the drop was, of course, people had a much shorter time to apply; therefore, fewer of them did it. The advertising and the desire of the Australian Electoral Commission to efficiently enrol people has taken place at every election, including all of the elections between 1996 and 2007, at which the present opposition lost government. Worse, these categories of people that it sought to exclude in 2006 quite legitimately elected it previously.
The member for Mackellar is right: those of us who have a democratic ethos of including every possible Australian are going to be looking at issues of provisional voting and trying to include all of the people that were so unfairly excluded, including people whose names were on the electoral roll. That’s right! Thousands of people whose names were on the electoral roll were excluded from voting at the last elections by the malevolent legislation introduced by the Liberal Party in 2006 for the 2007 election.
This bill seeks to overturn the unconstitutional legislation invalidated by the High Court and introduced by the coalition in 2006. It proposes to change the date for the close of the rolls from the third working day after the writs are issued to the seventh day after the writs are issued. The government remains committed to reversing the Howard government’s unfair changes to the Electoral Act, which close the rolls immediately after the issuing of the writs, which I have repeatedly pointed out particularly affects younger people—deliberately so in my view. Their legislation requires photo ID for people wishing to enrol, to change their details or to pass a provisional vote.
The thing that I find the most outrageous and egregious about these previous changes is that the previous government was elected at all of the elections between 1996 and 2004 on the previous system. With all of these votes they did not claim after any of those elections that this was undemocratic and that it should have not been elected because of these outrageous people who were enrolled under the very sensible provisions that we then had in the Electoral Act. The coalition was quite properly elected—although, as the member for Mackellar pointed out, if the provisional voting changes that they made in 2006 had not been in effect Labor probably would have won four more seats at the 2007 election. This obviously would not have affected the overall result, as we won anyhow, but it just shows that changes to provisional voting can actually affect results in seats. I would argue that it was done deliberately so, perhaps not by the member for Mackellar, who was not behind all of this or aware of all of the nuances, but the categories of people that were excluded are identified by all of the psephologists as people who would vote either Labor or Green at a margin of 60 to 65 per cent. So you can understand that, if there was a political intent in these changes, it was designed deliberately to exclude categories of voters who might disproportionately vote for forces that were not part of the now opposition.
As a member of the Joint Committee on Electoral Matters from 1998 until 2010, I was astounded when, during an inquiry into the 2004 election, coalition members claimed that these changes were necessary to prevent false enrolments. This was despite the fact that the Australian Electoral Commission had testified that there was no problem with false enrolments in Australia. The measures introduced by the previous government to prevent and suppress voters, especially young voters, were undertaken on the basis of no evidence. It is outrageous to think that those on the other side of the aisle do not support legislation that seeks to amend the disenfranchisement of Australian citizens. It is shocking that for so long the coalition has been able to get away with denying Australian citizens the right to vote. The coalition’s atrocious legislation of 2006 has prevented young people in Australia and many others from having their say in who represents them in this chamber.
If we look at what occurred at the last election, in 2010, we will see that, as a result of this suppression of Australian citizens’ right to vote, there exists a democratic deficit in our electoral system. Looking at the statistics of those who did not cast a valid vote at the last election, 2.5 million Australians were affected. Even if the member for Mackellar were theoretically concerned about false enrolments—for which she cited no evidence, of which the Electoral Commission said there was no evidence and evidence of which she and her associates have not been able to produce in this House—she would at least, if she wanted to be taken seriously, have to balance it against the fact that 2½ million Australians did not participate in the last election. Surely that is the act of a responsible person in this parliament.
Of the 2.5 million Australians, 1.4 million were not enrolled, 729,000 were enrolled but did not show up, 400,000 cast informal ballots and 166,000 provisionals thought they had cast a valid vote but were excluded. Out of 15 million people of voting age, one in six Australians had no say at the last election. That is a disgrace. This legislation is the beginning of an attempt by this government to see that the majority of Australians are enfranchised. I am very pleased to see that the democratic ethos that informs our views on this has begun with these moves by the Special Minister of State. I strongly support them, I am sure the Australian people will support them and I know this House will support them.
I thank the shadow special minister of state and member for Mackellar for her contribution to this debate at the outset. I note, as the member for Melbourne Ports leaves the chamber, that she is always elegant in her word, in her deed and, as I am sure all members agree, in her dress. A classier member of this parliament I think there is not.
Citizenship carries with it responsibilities. Those responsibilities, I think, are celebrated when we hold citizenship ceremonies—and we all in this place attend many of those ceremonies. Some time ago I made some remarks highlighting the need for us to continue to embrace this idea of affirmation ceremonies, where those of us who have become Australian by birth rather than by oath or affirmation have the opportunity to reassert our commitment to our responsibilities of citizenship with those who are taking it for the first time. I think there is an extraordinary commonality in that gesture which I would like to see us all celebrate more and more.
We do have responsibilities. We talk a lot about our rights as citizens, but we also have to talk about our responsibilities. Our citizenship ceremonies are a great opportunity to do that. These rights include, probably above all things, the franchise—the ability to cast our vote. As a country that some 100 years ago was in the minority of world experience in being a parliamentary democracy, we are increasing our numbers these days. As we look at events around the world we are hopeful that more countries will join that list of democracies where people have their say. This opportunity—this right; indeed, this obligation—to exercise that franchise is undoubtedly the thing which people prize most, and should prize most, as Australian citizens. We have many other great rights and responsibilities, from freedom of religion to all other things, and we celebrate those through our citizenship.
The Electoral and Referendum Amendment (Enrolment and Prisoner Voting) Bill 2010 contains some changes to how these rights and responsibilities will operate when it comes to the franchise. I want to refer to some remarks I made in August 2009, when I was a member of the Joint Committee on Electoral Matters, around my analysis of the numbers of the previous election in terms of just how seriously many in this country are taking their right to vote. I said at that time:
… there was one central fact before the committee that we wrestled with, and that was the issue of those who do not vote because they did not enrol to vote, who did not show up to vote or who did not fulfil their responsibilities to vote properly on the day.
When you add up the people who fell into that category in that election in 2007, based on the information provided by the AEC, there were 2.4 million Australians—that is, 2.4 million Australians who would have otherwise been eligible to vote either did not enrol, did not show up or did not vote in accordance with our laws. My speech continued:
There were around 1.138 million who did not enrol to vote, 715,000 who did not show up although they were on the roll, and 510,000 who failed to complete their ballot properly. This is actually an improvement on the situation in 2004, but the fact that one in seven voters—
at the 2007 election—
in a system of compulsory voting in this country do not exercise their franchise because they have not chosen to, they did not get it right or they could not be bothered is, I think, a genuine issue of concern.
It is an issue of serious concern in a parliamentary democracy such as ours.
I support compulsory voting. I think compulsory voting has been good for this country. The polity of the voting systems that we see in other jurisdictions has a different character to it. I welcome the character of the polity of our system of compulsory voting. But compulsory voting should not be a licence for passive democracy. It should not be the opportunity for a lazy franchise. If anything, it should be a reassertion by citizens of their need to engage with their responsibility to vote. We have to be very careful in this place to not do things that say, ‘If you cannot be bothered, if you do not make the effort, if you do not come along on the day, if you do not follow the rules of how to vote, you will be able to just somehow be let through the door anyway.’
We have rules around how democracy works, and rules around elections are incredibly important. People in this place have gone all over the world in times past and continue to do so today to observe the conduct of elections elsewhere. It is something we feel strongly about. It is something we commit our people to overseas to ensure that other countries can enjoy the same freedoms that we have in this country.
So why would we be contemplating lowering the bar on the obligations of our citizens who might otherwise seek a free pass when they will not take the steps that our laws require them to? This is what I think we risk here with the provision relating to the change to the close of rolls. The government has made this argument time and again—as have others outside this place, including various advocacy groups—and it was raised in the 2007 review of the election, and the numbers just do not support the argument. As the shadow minister said, in 2004, the AEC’s own submission to the Joint Standing Committee on Electoral Matters said that 168,394 people missed out on voting. In 2007, that number was 100,370. Australia’s democracy requires people to register to vote, as they should, by the time they turn 18 and to maintain their enrolment properly, as our law requires. If what was changed under the Howard government was such an assault on that right, then I would have expected to see those numbers showing the opposite, but they did not.
It did not. It did not say that. What it said was that more people enrolled, particularly through the campaign run by the AEC in that year—and it was an outstanding campaign; it said to prize your vote, enrol to vote. And that would be my message to every Australian: enrol to vote. Do not enrol to vote just because you think an election might be coming up next week, next month or next year. You are a citizen of this country: enrol to vote. I am sure that in our electorate offices we all have enrolment forms available to people. We all talk about it when we go into our schools, and we should. But what we should not be saying is: even if you cannot be bothered, if you cannot go, if you are not interested, if it is something you do not really want to think about, we can somehow change the rules for you. I think we have to draw a line under these sorts of things.
There are clear laws and rules as to how our democracy operates. It is not an unreasonable requirement to ask any citizen of this country to take a form, fill it out properly and send it to the Australian Electoral Commission. I do not think this is an onerous requirement. I do not think it is burdensome. The fact that fewer people missed out on voting in 2007 than in 2004 demonstrates that the measures that were introduced by the Howard government in no way impeded that task. There was evidence given by the Australian Electoral Commission that the 2007 election gave them more administrative opportunities to focus on the integrity of the roll—which is a very important responsibility that they have in administering our electoral system. I think that having to deal with a rush of enrolments on the eve of an election because people, frankly, could not be bothered to do it earlier puts the AEC under unreasonable strain at a time when they are preparing to oversee and conduct the most important democratic event that takes place in this country on a regular basis.
That is why the coalition continue to keep faith with the provisions that we put forward previously—that is, to ensure that people take the opportunity to enrol to vote in the ordinary course of the year. When we were in government, we ensured that the AEC had funds available to them to be able to promote enrolment. I think that is appropriate because, if you are a citizen, that is your duty; it is your responsibility.
I note that, in one of the dissenting judgments of the High Court, the observation was made—in terms of whether this was a discriminatory matter—that the burden that would fall on a person under the previous provisions was no greater or less. So there was no issue about discrimination. There was no issue about deliberate disenfranchisement. It was simply saying, ‘Get your enrolment in by a particular time and you’ll be on the roll.’ Everyone can take that opportunity on any day of the week, and I strongly suggest they do so, because I do not think we can continue to celebrate the richness of our democracy when one in seven people are basically not fulfilling their obligations under the Electoral Act.
That is not a situation I would like to see continue, and I would hope all members of the House would agree with me on that. I think the way to improve those numbers is not by taking the low road of lowering standards, which is what we are seeing here with this bill, but by taking the high road of saying: ‘You’re a citizen; take up that responsibility, take up the pledge you’ve made, take up the birthright that you’ve inherited and enrol to vote. Do it properly and show up.’ That is the best way to celebrate democracy in this country.
The other section of the bill relates to voting by prisoners. I thought the shadow minister, the member for Mackellar, made her points very clearly in this area—very clearly indeed. Under the previous government, we took the view that a person who was serving a custodial sentence should be denied that franchise. Why? Because they had volunteered up that right through the actions that resulted in their custodial sentence and got them in there in the first place.
When you transgress against a society in this way, when you violate the rights of others in a country like this, you give up certain rights that you have. That is the consequence of your actions. The previous government had a strong view that the franchise should not be extended to people who violate the rights of our community and of our country. The High Court had some things to say about this matter. What they disputed was not the ability to limit the franchise but whether it could be done universally. The coalition has flagged that the limitation of the franchise for people with a custodial sentence should apply to those who have a sentence of one year or more, not three years as this bill suggests.
The member for Mackellar made some very good observations about the types of people who would be given the franchise under the Labor Party’s proposal—those who have violated the rights of the community in heinous ways. I am not going to get into a discussion of the sentencing practices of courts, because I think there is a widespread community view on most matters. But what is relevant here is: where are we going to set the bar for citizens, or others who are living in this country under a visa, to be given the right to vote?
Citizens of this country who have transgressed in such a heinous way are denied the vote—and the member for Mackellar mentioned everything from assault, to sexual assault and a range of other offences which all of us in this place would decry. This government is saying that those offences, those actions against your fellow citizens, should not deny you the vote. Well, we disagree. If the government wants to argue that those who have done those things and have been sentenced for these things and sit in prisons today because of their own actions should still have the right to line up to vote—like every other citizen in this country who has not done these things or who has made amends for these things and is living freely in the community and doing their best to uphold the responsibilities of citizenship—then let the government make that case. Let the government put those who have done these things on an equal footing with other Australian citizens.
But the coalition will not do it. The coalition feels very strongly that this bill has some serious flaws. We will be addressing those flaws. We will be saying that Australians should uphold the responsibilities of citizenship by enrolling to vote. We should not have a lazy franchise in this country. We should not have a passive democracy. We should celebrate our democracy by upholding the standards and principles of our democratic system and expecting all citizens to celebrate them by living up to them.
I rise to speak in support of the Electoral and Referendum Amendment (Enrolment and Prisoner Voting) Bill 2010. The purpose of this bill is to amend the Commonwealth Electoral Act 1918 and the Referendum (Machinery Provisions) Act 1984 to implement two recent decisions of the High Court of Australia. The first of those High Court decisions is Rowe v Electoral Commissioner, as decided on 6 August 2010. This case relates to the period of time voters are allowed before the electoral roll closes to either ensure that they are on the electoral roll or update their details following the formal issue of a writ for an election. This case was a constitutional challenge to the validity of changes made to the Electoral Act by the Howard government. These amendments resulted in the electoral roll being closed to new or re-enrolling voters on the day on which the electoral writ is issued and three days after the writ is issued for voters updating their enrolment details. Previously, the electoral roll remained open for a period of seven days after the issue of the writ.
According to the AEC, the calling of an election will result in a significant number of persons enrolling or changing enrolment during the seven-day period, particularly young Australians—people who may not have been on the roll before. The seven-day period had enabled the AEC to advertise and promote enrolment and target particular groups with information campaigns, including Indigenous Australians and people experiencing homelessness.
As has been mentioned in this debate, at the 2004 federal election approximately 423,000 people enrolled, re-enrolled or updated their enrolment during the seven-day period. During the 2007 election 279,469 people enrolled or changed their enrolment in time for the election before the rolls closed. At least 144,000 fewer people were able to add themselves to the electoral roll in 2007 due to these changes. These changes have been proven in many studies to have taken away people’s ability to exercise their democratic right to vote. The proof of this is in the substantial number who did not get the opportunity to add themselves to the roll in 2007. Potentially hundreds of thousands of eligible voters missed out on being on the electoral roll due to this change by the previous, Liberal government.
On 6 August last year the High Court ruled that these Howard-era laws that closed the electoral rolls on the day the writs for an election are issued were invalid. That decision was probably overdue, but I am glad it happened at the time. The decision by the High Court, made in the early stages of last year’s election campaign, secured the ability of nearly 100,000 Australians to vote. Figures from the Australian Electoral Commission reveal that 57,732 voters enrolled and a further 40,408 voters updated their enrolment details after the High Court’s decision. The AEC ensured that those who submitted their changes within the seven-day time frame were now included on the electoral roll and thus given the right to vote.
As mentioned by the member for Melbourne Ports, there are currently 1.4 million Australians, or six per cent of the population, who are not enrolled to vote. But I prefer to put that figure in a form that relates directly to our electorates. All of our electorates are, on average, missing 9,000 voters. It is an indictment of our democratic process that there are people out there who should have a vote but, for whatever reason, do not. I do not think it should be a function of government to make it harder to vote. It should really be up to everyone in this House and in the Senate to encourage as many people as are eligible to vote to do so.
It is estimated that 70 per cent of these unenrolled voters are aged between 18 and 39, and one-third are in the 18- to 25-year-old cohort. We all live very busy lives and people do not always keep their details up to date on the electoral roll. It is usually not at the front of most people’s minds—although for people that live politics or work in this place, it may well be. It should not be expected that the AEC act in a draconian way to stop people updating their details or enrolling when they have fallen off the roll. We have to remember that many people are taken off the roll and do not know about it. They may move address and when checked by the AEC there is no response and they are removed from the roll. Usually the time they find that out is somewhere close to an election, when they are suddenly reminded: ‘I might have moved recently, but I have changed a lot of things—I’ve changed my utility providers’ addresses so my power and water bills come to me; I’ve contacted the bank and I’ve done all the other bits and pieces.’ But when events only come up every few years, sometimes that is not at the forefront of people’s minds. By keeping the rolls open for seven days people who are entitled to be on the roll have a reasonable amount of time to make the changes and enact their right to choose what will be, in effect, their own government, because if they miss out they of course do not have that right.
It would seem to me that any sensible person would say that amendments such as this, that make it easier for people to exercise a genuine vote, are sensible, needed and long overdue. I believe democracy should be inclusive, not exclusive. Everyone in this House would agree with a sentiment such as that.
Last year the government presented the Electoral and Referendum Amendment (Close of Rolls and Other Measures) Bill 2010, but of course that bill lapsed at the conclusion of the last parliament. It went through the House but not the Senate. That would have restored the rights of voters to update their details or re-enrol up to seven days after the close of rolls. It has been a genuine issue that has been on the go for the time that I have been in parliament. There are people out there who deserve to have the right to vote and should not be impeded by the actions of government.
I spoke in favour of the previous bill last time it was in the House in February 2010. Of course it was opposed by the Liberals and Nationals at the time. As we know, some of the changes that were put in in 2006 have now been ruled invalid by the High Court. The High Court ruling really highlighted the unfairness of those changes. The 2006 changes disenfranchised nearly 100,000 voters in 2010. In 2007, 100,370 people missed the close of rolls deadline for enrolling or changing their enrolment details by providing an enrolment form between close of rolls and polling day—too late to be eligible for the election.
The Joint Standing Committee on Electoral Matters inquiry into the 2007 election noted that of particular concern to the committee was that 31 17-year-olds who would have turned 18 on or before polling day and 4,068 18-year-olds who would have exercised their franchise for the first time at the 2007 election were also denied the opportunity to do so because of the changed close of rolls arrangements. This bill is about fixing this problem and correcting what I can only call an injustice to those Australians who wanted to exercise their right to vote but were not enrolled for any number of reasons.
When we look at some of the historical reasons behind this, seven days may seem like a long time for many things that are done now—many application forms are done same day and you can do many things online. That is another argument to have in this area. But it is also part of a public education campaign. This one is a bit different and I think maybe as a parliament we need to remind people that it is a continuous requirement to keep up to date on the rolls, and maybe the AEC needs to do more outside of election campaign times.
Schedule 2 of the bill addresses the second High Court decision, Roach v Electoral Commissioner, which relates to the franchise for people who may be serving a sentence of imprisonment. The amendments would ensure that while prisoners serving a sentence of imprisonment of three years or longer will be disqualified from voting, they may during this period of disqualification remain on, or be added to, the electoral roll. Remaining on the electoral roll will ensure that a prisoner who has served their sentence does not have to enrol for a second time, and would make that step back into society, I would hope, just that little bit easier.
It is appropriate for the parliament to respond to these two decisions of the High Court of Australia to ensure that the Electoral Act reflects the current state of the law. Not only that, but this bill amends the situation imposed by the last Liberal government that disenfranchised people who wanted to vote—people who visited their local AEC office and were told that they were too late and could not vote in the election. This bill will amend the Electoral Act to restore the close of rolls period to seven days after the date of the writ for a federal election and will reinstate the previous disqualification for prisoners serving a sentence of three years or longer from voting at a federal election. I commend this bill to the House.
I also rise to speak to the Electoral and Referendum Amendment (Enrolment and Prisoner Voting) Bill 2010. This bill is part of the government’s broader electoral reform agenda aimed at relaxing the electoral process. Lax enrolment procedures and processes may also lead to ambiguous voting activities and irregularities. This bill comes after a much-publicised campaign by the activist group Get Up! Claire Bongiorno of the Sydney Morning Herald on smh.com.au reported that:
The win by two young members of activist organisation Get Up! that overturned the Howard government’s amendments to the electoral enrolment laws is a great victory for democracy.
That was on 16 August 2010. But this is where I beg to differ. Democracy is about transparency. We talk about transparency in this House, across departments, and across the parliamentary process day in and day out, and that is where GetUp! promotes itself as being independent and non-partisan. But let me outline some of the facts. Our colleague in the other chamber Senator Abetz has been contacted by various members of the GetUp! organisation concerned about their activities. It was revealed on the morning of the poll that six progressive unions had poured more than a million dollars into GetUp!’s coffers in the previous three weeks. GetUp! outlined in the last federal election campaign that their strategy was to expose Tony Abbott as a radical conservative. Lachlan Harris is a founder and former member of GetUp! who then went on to become press secretary to Kevin Rudd. He once said:
… if you are a supporter of, like, conservative governments, GetUp.org.au is not for you.
They never once criticised Greens leader Senator Brown. Also, the ALP leader in waiting, Mr Bill Shorten, is a past board member.
Having a strong and transparent electoral system is designed to eliminate such ambiguous and misleading activity around election times, and this is paramount when we are ensuring that those voting are legitimate voters, that everything about voting has its legitimacy and that they are not engaged in dubious voting activities. Integrity is a key principle of our Australian electoral system. It is designed to preclude anyone from voting more than once and to preclude voting by persons not qualified to do so.
The ALP have resisted any changes to close loopholes in the act, and I feel that these loopholes can lead to and encourage electoral fraud. Allowing seven days after the issue of the writs for people to enrol seems to me like a great opportunity for potential fraud and threatens the integrity of our roll. The ability to adequately check information—and we know as members of parliament that the Australian Electoral Commission regularly checks enrolments—is, I think, compromised by having that short period for new enrolments during the election period. The AEC is unable to check that. Under the old scheme, to which Labor proposes to return, there were some 520,000 changes to enrolments or new enrolments submitted to the AEC. A return to the old scheme would make it relatively easy for those intent on any fraudulent voting activities to flourish. It just does not give the AEC enough time to check particular enrolments. The voting process is too important to allow loopholes for potential dodgy voting practices to occur.
Enrolment and voting in federal elections was voluntary from 1901, and permanent electoral rolls were established in 1908. Enrolment became compulsory in 1911. My home state of Queensland was the first state to introduce compulsory voting, in 1915. Compulsory voting for federal elections was introduced in 1924 and first used in the 1925 elections, where 91 per cent of the electorate cast a vote. Since this time, we have had improved or increased scrutiny of the electoral roll to ensure that there is absolute integrity of the electoral roll.
It is our view also that, if you are serving a sentence of three years or longer, you are not entitled to enrol or vote. Once released from prison, you are entitled to enrol and vote, and of course we would support this part of the bill, but part of the punishment for a criminal sentenced to prison is to lose their right to vote.
Being able to vote is not only something that a law-abiding citizen is entitled to; it is also a civic duty. I attend so many citizenship ceremonies, as do many of us who are members of parliament, and people who are becoming Australian citizens cannot wait to vote. Yet we have our own citizens that have a responsibility to vote. The member for Deakin said that young people are a bit lax and do not vote because they have other things and they have busy lives. But young people do register for things like youth allowance and Medicare. Why is the basic principle of enrolling to vote any less important than those things? It is much more important, and people have a civic duty.
Elections will produce good governments only if voters act out of the public or greater good and not merely in the hope of gaining an advantage at general expense. It is up to criminals to change their behaviour, not up to us to change our behaviour to modify their behaviour. I think the member for Cook also spoke about that. So it is not up to us to be responsive to their needs, and that is what this bill does. We are becoming responsive to their needs. They have a civic duty and a responsibility to behave in an appropriate manner that would give them a well-deserved vote. So we need to have no regret for that. We need to have no reform in any part of this bill that will give them that right. If that right were important to them, they would not have engaged in the activities that they have done. I think that they really have a civic duty, as all of us have in all areas. When they have repaid their debt to society by serving their particular time, I think they should be given a second chance, and they would be welcomed back and given that second chance. Those who have been detained on remand at home or in periodic detention should still be eligible to be enrolled to vote.
This bill is about the government attempting to relax the electoral process. It also opens it up to potential irregularities. The electoral process should be held in the highest regard by all citizens. For citizens to maintain this esteem, the process needs to maintain its integrity and it needs to maintain its transparency. Behaviours like those that I spoke about by the union-backed GetUp! during the last election do nothing to enhance the integrity or transparency of the electoral process. This bill also concentrates on being able to vote as something that a law-abiding citizen is entitled to do but also a civic duty. Voters should undertake their duty with their best interests and the wellbeing of the nation at heart. That we can vote gives us a right to choose a representative in this parliament and to influence how our country is governed. In return for these rights, all of us have an overriding duty to Australia. We should accept the principles and the civic values of our community.
As we have seen recently in the Middle East and North Africa, the desire for democracy is a universal and fundamental value that people are willing to fight and die for. So it is important that we protect the basic democratic rights of all Australians. The most important of these is the right to vote. It gives me great pleasure to speak in favour of the Electoral and Referendum Amendment (Enrolment and Prisoner Voting) Bill 2010, which re-enfranchises the tens of thousands of Australians who were affected by the actions of the Howard coalition government.
We should not be having this debate, of course. The primary reason we are doing so is the lengths to which the Howard government went to massage the criteria for enrolment in such a way as to meet its own political ends. It comes as no surprise, then, that again today we have had the coalition approaching this bill with some rather spurious arguments. We should not be surprised that we are seeing on display the coalition’s dumping of its small ‘l’ liberal values in its argument against the restoration of democratic rights that it wrested from tens of thousands of mostly young Australians in the first place.
We have heard a lot recently about the morphing of the coalition into the dangerous doppelganger of the ultraconservative Tea Party movement in the United States and how racism is eating away the coalition’s small ‘l’ liberal values. It is a reflection of how far the coalition has lurched to the right that the High Court, not itself a radical institution, has had to act to overturn these undemocratic laws.
Methinks a certain member doth protest too much. Those High Court decisions reversed the amendments the coalition government made to the Electoral Act in 2006, in effect restoring the previous arrangements. The current government should be commended for moving to have Commonwealth law reflect those important decisions—and not, I add, a minute too soon.
I revisit for a moment the rationale used to justify the amendments made to the act in 2006 and focus on the decision to close rolls on the day of the writs being issued for new voters and three days after the writs were issued for voters updating their existing enrolment details. The then coalition government’s argument to close rolls early was threefold: apparently parliament needed to remove untenable administrative burdens on the AEC, needed to minimise the opportunity for electoral fraud and needed to close the rolls as early as possible to discourage voters from changing their details with the AEC at the last minute. All of these arguments amounted to political excuses that were and still are completely unsubstantiated. We all know the true rationale for the 2006 amendments to the Electoral Act; you do not have to be a psephologist to understand the effect on the two-party preferred vote created by disenfranchising tens of thousands of young voters.
At the 2004 election, 77,231 new electors, predominately young first-time voters, got on the electoral roll in the seven-day window after the election was called. At the 2010 election, 62,583 people joined the electoral roll during the same seven-day window. That amounts to 16 per cent of the total number of new enrolments since the last election. If it had not been for the GetUp initiated High Court action and the court’s last-minute decision, those 62,583 eligible voters would not have been able to vote on election day. It is no exaggeration to say that this decision could have had an important impact on the outcome of the election.
The truth about Australian federal elections is that they are never held on fixed dates and can be called unexpectedly. The Greens, of course, have said for some time that we would like to see that changed. But, until it is changed, early closure of the rolls impacts disproportionately on young people because first-time voters have the hurdle of enrolling themselves—which existing voters do not—and often have to predict that action with very little warning. Another reason early closure of the rolls impacts disproportionately on young people is that the living arrangements of younger Australians are more likely than those of other Australians to change from one election to the next. There is no clearer example of that than my electorate of Melbourne, which has a highly mobile population and the highest proportion of young people of any electorate in the country.
If other, similar democracies can cope with the administrative requirements of keeping rolls open after the election is called, then we should be able to manage it too. The United Kingdom keeps its rolls open until 11 days before polling day. New Zealand keeps its rolls open until the day before polling day. Canada keeps its rolls open until polling day itself. Yet somehow Australia apparently could not cope with the administrative burden on its national electoral commission and needed to close its rolls as soon as the election was announced.
I suggest that, if anything, Australia could be looking at going further than the provisions in this bill and investigating measures by which maximum enfranchisement, including of first-time voters, could be achieved by closing rolls much closer to polling day itself. In my view, it is also time that the Australian Electoral Commission considered whether there is a secure way of facilitating on-line enrolments which, if we could ensure the integrity of the roll, would help maximise enrolment, especially amongst young people.
In my own electorate of Melbourne in 2010, 1,616 voters that enrolled after the election was called were initially told that they could not vote. The vast majority of those 1,616 were young, first-time voters, many of them students. That is about 1½ per cent of the electoral roll in my seat. They were completely disenfranchised through the actions of the former coalition government, and I have never heard a defensible reason as to why those 1,616 young people ought not to have been on the roll. I certainly have not heard any today.
I thank the government for the introduction of this bill, and I thank GetUp and other individual campaigners for agitating on this issue. This bill will have the full support of the Greens at its second reading.
I rise to speak on the Electoral and Referendum Amendment (Enrolment and Prisoner Voting) Bill 2010. I support the comments of the members for Mackellar and Brisbane and those of my very good friend and neighbour, the member for Cook. This bill proposes to make a number of very undesirable changes to our electoral laws. All Australians have rights and freedoms, which they can rightfully expect to have unhindered access to. These include freedom of speech, freedom of religion and freedom of movement along with the right to shelter, to food, to health care and, of course, the democratic right to vote for their representatives. These rights must be steadfastly defended at all times. They must be defended by laws, and sometimes they must even be defended at the point of a gun.
But for every right that we have in our society there is an equal and corresponding obligation. However, firstly, there are circumstances when this right to vote is forfeited, particularly in cases where one has broken the standards that a democratic society has agreed to live by. Secondly, we must balance the right to vote by ensuring the integrity of our electoral system and protecting it from the risk of fraud, as the integrity of the electoral system protects our democracy. Those who offend against the common good and those who have been sentenced to prison for one year or more have shown that they have no respect for the community and, therefore, they have forfeited their right to contribute to the governance of our society. The temporary suspension of the voting rights of criminals symbolises the community’s disgust for their acts. The temporary suspension sends a strong signal of the community’s revulsion at those who commit such crimes.
However, it is hardly surprising that, with Labor’s voter base in freefall, in a desperate attempt to enlist a few more voters, this government seeks to amend our electoral laws through this bill to give armed robbers, child pornographers, paedophiles and a variety of villains and common criminals the right to vote. This is at a time when the public is concerned about the decline of community standards, our ineffective laws and the need for harsher sentences. The coalition amendment seeks to enshrine in our law that, when someone is found guilty of committing a serious crime against an individual or our community and they are sentenced to imprisonment for one year or more, further freedoms should be temporarily restricted—namely, the right to vote.
To protect the integrity of our electoral system we must have an orderly, transparent process under which citizens enrol to vote. Back in 2004, a report by the Joint Standing Committee on Electoral Matters noted:
… the current close of roll arrangements—
which at the time was seven days after the issue of the writs—
present an opportunity for those who seek to manipulate the roll to do so at a time where little opportunity exists for the AEC to undertake the thorough checking required ensuring roll integrity.
To the argument that there was no proof of electoral fraud sufficiently widespread to warrant any action, the joint standing committee said it ‘missed the point’ and that it was important that steps should be taken to prevent the opportunity for fraud. Therefore, following the recommendations of the joint standing committee and after a further recommendation of the Senate Finance and Public Administration Committee, amendments were effected to the Electoral Act that provide that a claim for enrolment made after 8 pm on the date of the writ for an election would not be considered until after the close of polling at the election. There are no legitimate reasons to change these provisions. The member for Melbourne referred to the High Court decision on this issue, but what he did not mention is that when this question came before the High Court it was deeply divided with a four-three split decision. The current provisions get the balance right between the right to vote and the protection of the integrity of our electoral system, and therefore they also protect our democracy.
The Electoral Act provides both a right and an obligation to all citizens. As with every right we have in our society, there is also a corresponding obligation. Section 101 of the Electoral Act provides an obligation on all citizens who are entitled to have his or her name placed on the roll to do so within 21 days. This bill seeks to give special allowance to those who have failed to comply with their obligations with regard to enrolment under the Electoral Act and it does so at the risk of undermining the integrity of our electoral system. Therefore, I cannot support this.
To ensure fair and free elections, we must have the integrity of our electoral roll and our electoral system. The intent behind the coalition amendments is to strengthen our democracy and our electoral process and to safeguard against electoral fraud. Our democracy is something we must never, ever take for granted. It is something that we must be ever vigilant to protect. Fair and competitive elections are the bedrock of democratic government. Fair and competitive elections are the essential mechanisms for providing public accountability, transparency and representation. Fair and competitive elections give ordinary citizens the opportunity to choose those who govern and to express their views on critical issues facing their community or nation. However, one of the greatest threats to democracy and fair and competitive elections is electoral fraud—conduct outside the spirit of electoral laws or in violation of the principles of democracy.
Acts of electoral fraud include the destruction or invalidation of ballots, vote buying, gerrymandering, ballot rigging, misrecording of votes, the dissemination of false or misleading information designed to alter votes, illegal voter registration, voter intimidation and tampering with ballots. But all election fraud has one thing in common: it is designed to affect the outcome of an election by dishonesty. We must take all types of electoral fraud seriously as electoral fraud reduces voters’ confidence in our democracy. Even the perception of electoral fraud can be damaging as it makes people less inclined to accept election results and creates a distrust of politicians and the political process, and that undermines our democracy. That is why the coalition seeks to amend this bill.
In recent years we have seen examples of electoral fraud around the world, including in countries such as Nigeria, Iraq and Zimbabwe, where those in government use dishonest means to cling to power. However, I am very sad to say that the Australian nation now joins the sorry list of countries that have been victims of electoral fraud. On the eve of the last election, we had both the Prime Minister and the Treasurer disseminating false and misleading information on the carbon tax in order to affect the outcome of the election. Those 11 now infamous words uttered by the Prime Minister on the eve of the election, ‘There will be no carbon tax under the government I lead,’ will go down in history.
This bill addresses the issue of electoral fraud—how else could one describe the dissemination of such false and misleading information? The dissemination of false or misleading information designed to alter votes is no different from other acts of fraud, such as tampering with ballots or illegal voter registration, which coalition amendments to this bill seek to guard against. Put simply, the Prime Minister shamelessly lied to the Australian people just to win an election. All Australians should feel aggrieved by this act of gross betrayal. For the Australian electorate this is not only an unprecedented breach of faith; the dissemination of such blatantly false and misleading information is an act of electoral fraud.
If the Prime Minister wishes to punish working families with a carbon tax, if she wishes to punish them for driving a car, if she wishes to punish them for turning on the heater in winter or the air conditioning in summer, she owes it to our democracy and to those who have fought to protect it to call an election and seek a mandate from the people. If this Prime Minister seeks to punish small business with this carbon tax, if she seeks to push up people’s electricity bills and freight costs, she owes it to our democracy and those who have fought to protect it to call another election and seek a mandate from the people.
Order! Member for Hughes, I really am tolerant of a fairly wide range of things and I have given you an opportunity. I would remind you, and all members of the House, of the legislation before us, and I would ask you to be as relevant as possible, please.
Bills such as the Electoral and Referendum Amendment (Enrolment and Prisoner Voting) Bill 2010 and the amendments proposed by the coalition are all but meaningless while we have a Prime Minister who is prepared to commit election fraud to retain power.
Mr Deputy Speaker, you have drawn the attention of the member to the need to achieve some level of relevance to the bill that is before the House. This bill clearly deals with two procedural amendments—
Thank you. I would remind the member for Hughes, before I call him to continue his contribution, that I have asked people to be moderately relevant to what is in this bill in order to enlighten those who might be listening to or reading this debate. I have asked you if you would return to being a little bit more specific about the legislation before us. I will apply that on both sides. I do ask you again to take that into account.
I am very pleased to speak to the Electoral and Referendum Amendment (Enrolment and Prisoner Voting) Bill 2010, because the way we conduct our elections says a lot about how we are inclusive or seek to exclude people from participation in our nation. Australian political parties have for the most part through our history sensibly taken a bipartisan and inclusive approach to electoral matters. This bipartisan approach has given us a practical electoral system that has spared us the tyranny of hanging chads, recall elections and other electoral disasters. In fact, our compulsory voting system, which has been in place federally since 1924, has probably compelled us to value the franchise even more than those who live in other democracies around the world. I suspect that compulsory voting—which is as Australian to me as Anzac biscuits and billy tea—has led us to embrace innovations like absentee voting much earlier than many other democracies.
However, having done a few pub crawls in my area, I have to let you know that many of the young people I have met out there whom I have been trying to encourage to enrol to vote perhaps do not quite yet understand the great gift they have in their capacity to participate in our healthy democracy.
There is a lot that both sides of politics can be very proud of in this bipartisan tradition, and I am very happy to speak to these matters. The bill we addressing today has two aims. The first is to fix the seventh day after the issue of federal election writs as the date for the close of rolls. The second is to reinstate the constitutionally mandated right to vote for prisoners serving less than a three-year term of imprisonment. I know I started my contribution to this debate by praising the overall bipartisan and cooperative nature of our approach to electoral matters in our parliament, but I have to add a disclaimer. While our shared history has given us a robust democracy, our recent history has not been as happy. That is because, since 2007, we have seen the coalition turn its back on bipartisanship when it comes to electoral matters and deliberately diminish the basic right of all Australians to exercise their franchise. How did this happen?
As many here would remember, in 2006 the then Special Minister of State, Senator Eric Abetz, took advantage of the coalition’s control of the Senate to bring forward the date for the close of rolls. For those updating their details, for those turning 18 years of age between the issue of the writs and the polling day, and for those gaining citizenship between the issue of the writs and polling day, the coalition government changed the date for the closure of rolls from the seventh day after the issue of the federal election writs to the third working day after the issue of the writs. That was quite a disgraceful act, in my view as a citizen of this fine country.
For new enrolments and re-enrolments the date for the close of rolls also changed. It changed from the seventh day after the issue of the writs to the actual day of the issue of the writs. As the Joint Committee on Electoral Matters has recorded, the result of these changes by the coalition saw more than 100,000 people miss out on the close of rolls deadline for the 2007 election. They missed out because they either failed to enrol or to change their enrolment details correctly.
The Joint Committee on Electoral Matters has reported extensively on this disenfranchisement in its inquiry into the 2007 election. The inquiry found that a total of half a million voters were unable to exercise their franchise in 2007. This was because they were either not on the roll in the first place or because they were on the roll with an incomplete or incorrect detail. Unforgivably, in my opinion, those who missed out in 2007 included more than 4,000 18-year-olds, who would have been voting for the first time, their first opportunity to exercise their franchise.
That statistic in history is one of which the opposition should be deeply ashamed. At the time of the 2006 changes, the opposition mounted a spurious argument that the integrity of the roll had to be protected from so-called voter fraud. Today they still hide behind the same spurious arguments. As the member for Melbourne Ports has pointed out in this House before, there have only been 71 proven cases of fraud in the period of an entire decade, which amounts to one in a million votes.
Disenfranchising half a million voters to catch 71 fraudulent voters in 10 years makes absolutely no sense. It lacks any sense of proportionality and reveals the incredible fraud that was perpetrated on the Australian people by those changes brought by those opposite. Then there is the alleged issue of multiple voting. I do not know that there would be many people in my electorate who would be chasing an opportunity to vote three or four times in a day.
The coalition like to speak of multiple voting as some kind of important issue, but the joint committee’s report on the conduct of the 2007 federal election and matters related thereto describes the phenomenon very aptly as ‘the multiple voting myth’. I am sure it applies even more in my region if the surf is up on that day. The report notes, that of those electors who admitted to multiple voting in 2007, 82 per cent cited confusion, poor comprehension or were aged; and, of those in the aged category, 98 per cent were aged 70 or over. Of the 10 cases of apparent multiple voting that were eventually referred to the Australian Federal Police, no further action was taken. The committee concluded:
… it needs to be more widely recognised that fears about the effects of multiple voting are, and have been, overstated and should not be used to deny eligible electors the opportunity to meaningfully participate in the democratic process
Here we have the words attached to those on the opposite side of this parliament at this time: the rising of fear, a litany of fear, teaching people to be frightened of a reality that does not exist and, through that, attempting to disenfranchise those who have at the very heart of this democracy every right to have a say about the way in which our democracy should move forward.
For the record, Labor has tried several times since winning office in 2007 to right the wrongs of the former coalition government. The measures in the current bill relating to the close of rolls are in fact the third set of proposed changes in this area of electoral law to be introduced by the federal Labor government. Unfortunately, Labor’s previous attempts to legislate to return the close of rolls to seven days, as it was before, lapsed with the conclusion of the last parliament. Despite the overwhelming evidence members on this side of the House have cited about the mass disenfranchisement of voters in 2007, the coalition has resisted our attempts to reinstate the seven-day close-off every step of the way.
Today we try again in a legislative sense. But since last year there have been some welcome and significant developments towards restoring the franchise to the Australian voter. Regrettably, these developments have not been in the parliament where the government continues to face all manner of opposition obstruction. The developments in the positive frame of which I speak were in the High Court, which on 6 August 2010 recognised the fundamental injustice of the Howard government laws in its historic decision Rowe v Electoral Commissioner. The decision handed down by Chief Justice French and Justices Gummow, Bell and Crennan held that the provisions of that legislation contravened the requirement in sections 7 and 24 of the Constitution that members of both houses of the Commonwealth parliament be ‘directly chosen by the people’. The upshot is that today’s legislation will simply allow our legislation to catch up with that fair and valid decision of the High Court.
The second set of changes this bill aims to bring in also flows from a High Court decision to overturn a 2006 Howard government amendment to the Electoral Act. In this case the High Court decision was Roach v the Electoral Commissioner and it related to the franchise of a person serving a sentence of imprisonment. In 2006, the Howard government removed voting rights from prisoners serving any term of imprisonment. When that was tested in Roach v the Electoral Commissioner, the High Court found the change to be constitutionally invalid.
As a consequence of the decision, voting eligibility reverted to the pre-existing requirement where prisoners serving a sentence of imprisonment of three years or longer are disqualified from voting and cannot be retained on or added to the electoral roll. It is not lost on me that Vickie Roach of Roach v the Electoral Commissioner is an Aboriginal woman. Sadly, despite her contribution to the field of voters’ rights, Ms Roach was unable to convince the court to let her vote.
I am deeply worried about the kind of negative messages that were unspoken yet implicit in the coalition’s 2006 changes. Young people need a positive environment in which to grow. This is even more the case for our vulnerable, disenfranchised young people. I fear negative messages are often self-fulfilling. For example, the seat of Robertson is home to the Frank Baxter Juvenile Justice Centre. It is the largest juvenile justice centre in the state of New South Wales with a capacity for 120 young people. We also have the Mount Penang maximum security section adjacent to Frank Baxter. According to the details that I have at hand, the juvenile justice centre accommodates males aged 16 to 21 years, mostly on control orders.
I mention the centre because at last year’s federal election the declared institution results from the centre were very striking. They were striking in that there was a complete lack of result. No votes at all were recorded. Not a single vote was cast there, despite the age range of the inmates, who should have been participating. There may be some other explanation that I do not know about—and I hope we find that to be the case as we dig deeper and find out—but the bottom line is that not a single vote was cast at the state’s largest juvenile justice centre in the country’s most populous state.
I have spent a lot of my time promoting the concept of active citizenry. School classrooms and university classrooms, in which I have spent most of my time, are the places in which we practise the discourse of our democracy, where we model and we enable young people to find ways to get on in a community where they are connected with one another and where each day they learn ways of being better citizens. We practise and learn how to be citizens in that construct. In terms of active citizenry, turning 18 is a critical moment. It is the moment when you move in a very powerful symbolic way to participation by your eligibility for a vote in the Australian nation.
The current situation, as was put in place by the Howard government in 2006, is simply untenable. I would like to conclude by saying that we simply cannot continue to make it difficult for young Australians to access their basic democratic rights. All young people deserve a right to vote. I definitely welcome the changes incorporated in the bill that is before us today and I commend it to the House.
While this Labor government is busy wanting to help convicted criminals and the generally apathetic retain their right to vote, people in my electorate are feeling a very deep sense of disenfranchisement from the electoral process. I rise to speak against the Electoral and Referendum Amendment (Enrolment and Prisoner Voting) Bill 2010. In looking at this bill, I have to say that it does appear that the government is more interested in the enfranchisement of criminals and the generally apathetic than looking after the enfranchisement of law-abiding citizens, particularly those in my electorate of Dawson. That is a bizarre set of priorities from the government.
People in Dawson are feeling very disenfranchised because of the way that the boundaries of the electorate are drawn. We have people in the southern areas of Townsville who have been lumped in with the people of Mackay and people in Mackay who are living in the same electorate as the people of Rockhampton. I speak to people who are in Mackay who have been lumped into the seat of Capricornia. They tell me that they do not get the representation that they deserve and they never see their federal representative. I visit my constituents in Townsville regularly and they tell me that they want to belong to the federal seat of Herbert so that their community is in the one community of interest, and that is Townsville. I can very much understand that but it seems that the Gillard Labor government do not understand it. Instead, they are more interested in the enfranchisement of prisoners and the apathetic, and that is why this legislation is before this parliament—to ensure that those people get the right to vote. So I am confused about the priorities of the government in relation to electoral reform.
There are some severe problems with this bill. I have a strong view that the High Court actually got it wrong. The Constitution is quite clear in section 44(ii), where it talks about members and senators in this place and the requirements they have to meet in terms of imprisonment and convictions. The disqualification criteria for those people really should align with what is required of voters. It is my firm belief that, if you cannot sit in this place because you have been sentenced for more than a year, you should not be able to vote. If you cannot stand for an election, why should you be able to have a voice, a say, in that election? Section 44(ii) of the Constitution states:
Any person who –
… … …
(ii.) … has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer …
… … …
shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
With respect to the second part of the bill that the government is putting forward, we on this side have a strong concern with the capacity for electoral fraud. That is something that goes on. It has been documented to have gone on. It is certainly associated with high levels of enrolment activity that occur in the time immediately after an election is called. Looking at our own situation in Dawson, there were literally hundreds of people whose addresses did not match their enrolled address in the electoral in Dawson. That is a concern—and that would be replicated around the nation. It had been a favourite Labor pastime, particularly in North Queensland, to enrol dead people in vacant blocks. This was proved by the Shepherdson inquiry and by investigative journalists such as Bob Bottom. This is something that does go on. To open up a new set of rules that allows that sort of electoral fraud to continue is certainly of concern to me and it would be of concern to many people in this nation.
For all of the talk of disenfranchisement of young people—and I am one of the youngest people in this parliament, along with the member for Longman, on this side—the AEC figures show that under the rules of the Howard government there was a 40 per cent reduction from 2004 to 2007 in the number of people who missed the deadline to enrol. That shows quite clearly that the Howard government legislation was not disenfranchising anyone; in fact, it was helping the situation.
Labor were unable to get that legislative change that they wanted prior to the 2010 federal election in this regard. However, immediately prior to the election, GetUp!—that Labor front masquerading as a political activist group—confected a series of deliberate late enrolments and then appealed to the High Court to have those laws ruled unconstitutional. It must be of major embarrassment for the Labor Party to be connected to this group GetUp!—they are very well financed, this grubby little left-wing group, and they have tentacles that stretch right into the heart of caucus. They should be morally and ethically bound to show where their finances come from, because they get involved in the electoral process. They were handing out GetUp! how-to-vote cards in my electorate, basically advocating that voters vote for Labor or the Greens. And they try to claim that they are completely impartial! Then they have the hide to run campaigns such as the one they are running in Brisbane at the moment where they put up a big billboard and claimed that women are being jailed because of abortion laws in Queensland. No woman has ever been jailed because of abortion laws in Queensland. So these are the kinds of people who are linked to the ALP and who basically pushed it on them to put this legislation up before the House. So that is GetUp! and that is their problem, I suppose.
But I really do want to speak on the real disenfranchisement on which the government should be legislating and which it should be addressing, to do with the community of interest issue that I talked about earlier. The situation in my electorate is akin to someone living in Werribee in the Prime Minister’s electorate of Lalor having their federal member living in Albury, New South Wales, 400 kilometres away. Electoral divisions in the north of Queensland are really that bizarre. How would the Prime Minister’s constituents feel if they were lumped together with the community of Albury in New South Wales? Maybe then we would be here debating a bill that gave greater access to representatives rather than a bill that makes sure prisoners retain their right to vote.
The people living in the southern suburbs of Mackay and Townsville feel as though their new federal electorate boundaries have disenfranchised them—none more so than the former federal member for Herbert, Peter Lindsay, now my valued constituent in the electorate of Dawson, who said in this House in August 2009:
I happen to live in Annandale … Where I live, in the new seat of Dawson, is two kilometres from my electorate office.
That is, the Herbert electorate office.
In fact, it is two minutes and 45 seconds away by car. How bizarre is that!
It certainly is bizarre, because Mr Lindsay lives 400 kilometres away from Mackay and would need to take an 800-kilometre round trip to visit the Dawson electorate office. In fact, there are people living 10 minutes from where I live in the centre of Mackay whose federal representative is a 3½ hour drive—a seven-hour round trip—from where they live. Yet, 4½ hours north, I still have residents in the seat of Dawson.
In his speech back then, Mr Lindsay pointed out that the creation of the federal seat of Flynn in 2007 had caused the seats of Capricornia, Dawson and Herbert to move north, Capricornia being pushed into the southern areas of Mackay in the seat of Dawson. Sarina and Mirani, whose community of interest is with Mackay—and, I would say, the Pioneer Valley as well—are now in the seat of Capricornia and are not being represented effectively. And that is a complaint that I get time and time again from those residents.
The seat of Dawson was pushed right into the southern suburbs of Townsville, where the community of interest is with Townsville, obviously, and not with Mackay. But the AEC, in their infinite wisdom, basically said they were not concerned with that. What they were concerned with was the inclusion of Lavarack Barracks in the Townsville seat of Herbert. They did that because they said there was an affinity and community of interest between these soldiers and those in the garrison city of Townsville. They must have Mr Squiggle employed there because—to cut that out, when suburbs right around it are in Dawson, and to cut the barracks out and put that in with Townsville—that is an interesting boundary! Mr Lindsay did point out that there are many soldiers—probably more soldiers—living in Annandale, which is in the seat of Dawson, than there are living at Lavarack Barracks. So the argument that the AEC put forward there defeats their argument in terms of the boundary alignments.
The situation is the same as in Mackay. I have seen those issues as a local government councillor in a previous life, prior to coming here. As I said, you have got areas of the Mackay region—Sarina, the Pioneer Valley, Walkerston, Plainland—which are just completely disempowered and disenfranchised. They are not represented adequately. They complain about it vigorously. And yet the government does nothing to strengthen the community of interest provisions in the Electoral Act. Instead, we are here talking about enfranchising and empowering criminals. We are talking about helping those who could not be bothered to enrol by giving them extra time to enrol, and allowing a whole heap of problems to happen in terms of electoral fraud. So I would call on the government to immediately legislate to make community of interest the guiding principle in all redistributions that happen from now on, and in fact to look at existing electoral boundaries and question whether they do fit with community of interest.
Labor should be legislating to improve the electoral laws, not trying to empower criminals beyond what is constitutionally required. What about law-abiding electors and their sense of disenfranchisement with the electoral process? How come Labor is not legislating for these people? Community of interest provisions in the Electoral Act should be strengthened. And that should be the priority over and above any others right now.
I speak in support of this bill, the Electoral and Referendum Amendment (Enrolment and Prisoner Voting) Bill 2010, and I do so for two reasons. One is the general reason that anything that this parliament can do to enfranchise voters is something that we have to take seriously, to consider seriously and to do. It is not our role when we come into the parliament to disenfranchise voters. The right to vote is one of the rights that are in our Constitution, and it is something that we have to be very mindful of and give expression to. That is the general approach that we should adopt in how we do things, whether we are in government or whether we are in opposition. So it is very clear, I am talking about the parliament and our role as law makers and members of parliament.
When I went to the election in 2007, what disturbed me was that there had been provisions introduced to the act which had disenfranchised voters, particularly young people and others who were enrolling for the first time. We should be encouraging young people—we should be encouraging everybody—to exercise their democratic right to vote. There was that period where they had to get on the rolls and they had to register almost immediately, and by the time they realised that it had to be done it was over; they could not do it. That is going from the general to the particular.
The primary purpose of this amendment is to amend the Commonwealth Electoral Act 1918 and the Referendum (Machinery Provisions) Act 1984 to give effect to two decisions of the High Court of Australia. It pleases me to be able to talk to an amending bill that is giving effect to those two decisions. The previous speaker said a number of things, but he said that we should not be doing beyond what we are constitutionally bound to do. That is precisely what we are doing; the High Court made two decisions, and we are giving effect to those two decisions.
The first decision is Rowe v Electoral Commissioner, and it was decided on 6 August 2010. It concerned the process following the calling of an election through the formal issue of a writ and the period of time allowed for relevant voters to either ensure they are on the electoral roll or update their details. I can remember people coming to my office, trying to get forms faxed through to the Australian Electoral Commission. My staff stayed at work until eight o’clock that night trying to get them through, because the fax clogged up and nobody could get anything through. We were on deck to make sure that people were able to do that.
As to how they would vote, I did not have a clue, but they were my constituents and that was what they wanted to do. Some missed out because they went to the post office and the post office was closed. The post office actually could not get the forms through to the AEC. The AEC were sending them to my office; some got there. There was a whole range of things that were going on at that time. Even though that was all rather messy, what was pleasing was that there were people who really wanted to get on the roll and exercise their right to vote, so it is really important that we make these changes to the act.
The second decision was Roach v Electoral Commissioner, which was decided in August 2007. That concerned the franchise for relevant people who may be serving a sentence of imprisonment. I heard some contributions recently from someone in the coalition—I cannot remember who it was—talking about the issue about prisoners, saying that we should not be giving them the right to vote. It is a longstanding philosophical view, but we should be giving the right to vote to people wherever they are without fear or favour. There are some constraints on it, but we should not just keep making it harder and harder for anybody to exercise that right to vote. In keeping with rule of law principles, the punishment is actually the sentence and the detention, so we do not have to further sentence through legislative sentences here. That is exactly what was being suggested by the other side. Legislative sentencing is a dangerous area to stray into.
If the bill is enacted, it will do a number of things. It will update the text of the Electoral Act to reflect the current legal position as declared by the High Court to restore the close of rolls period to seven days after the date of the writ for a federal election and reinstate the previous disqualification of prisoners serving a sentence of imprisonment of three years or longer from voting at a federal election. Consequential amendments to the referendum act would have to be made to ensure consistency between the two acts. The explanatory memorandum also deals with two other related matters that are also addressed by the bill.
In June 2009 the Joint Standing Committee on Electoral Matters delivered a report entitled, Report on the conduct of the 2007 federal election and matters related thereto. I will just stop and make a comment about the Joint Standing Committee on Electoral Matters. I have read a lot of its reports, and it has done some really fine work over the years. It behoves us to read those reports and use them as a guiding principle—not every report, but in general the committee has done some fine work, particularly over the last few years. The bill would implement the government’s response of 18 March 2010 to recommendation 47 of that report, and the amendments would ensure that, while prisoners serving a sentence of imprisonment of three years or longer will be disqualified from voting, they may remain on or be added to the electoral roll. The other related matter that would be addressed by the bill is an interpretive provision to ensure that certain references in the Electoral Act to an election for a division or similar expressions can operate in the event of a half-Senate election held independently from an election of the House of Representatives.
In closing, it pleases me to be able to talk on this bill. It pleases me that we are able to further franchise voters, voters who were disenfranchised by the previous government, the Howard coalition government, who one after another will be here today, seeking to continue that disenfranchisement. I commend the bill to the House.
The bill before the house today, the Electoral and Referendum Amendment (Enrolment and Prisoner Voting) Bill 2010, has four provisions. The first deals with the status of a person serving a prison term of three years or longer. The second deals with the close of rolls period and the third and fourth deal with two minor consequential amendments. The issue I wish to focus on today is the provision to change the deadline for enrolment when a federal election has been called. I want to argue that the case which has been made in favour of changing the deadline is an unpersuasive case. I want to further argue that this is a bill which would increase the risk of electoral fraud. And the third argument I wish to make is that, sadly, the Labor Party has form in putting forward reforms to our electoral system on purportedly high-minded grounds but which are in fact for partisan political advantage.
The argument that has been put in favour of changing the deadline for enrolment once an election has been called, the argument that has been put in favour of extending that deadline, is an unpersuasive one. The position under the 2006 legislation, passed under the Howard government, was that on the day that writs were issued for an election, the deadline for enrolment was 8 pm that night. Further, the legislation meant that the rolls closed three days later and that 8 pm on that day was the deadline for changing an existing enrolment. What is now put is that the rolls should be closed seven days after the writs are issued. The argument in favour of that is that somehow the position in the 2006 legislation disenfranchised voters.
As is well known, this was the basis of proceedings brought before the High Court by the activist organisation GetUp!. The claims that were made, that the 2006 changes disenfranchised voters, are not persuasive. In his judgment, Mr Justice Heydon noted that no evidence had been put before the High Court in relation to the claim that many young electors rely on the existence of the seven-day period as a way to update their enrolment. A further point is that, quite frankly, you would have had to have had your head under a rock—if I can paraphrase the more measured judicial language of Mr Justice Heydon—not to know that there was a very high prospect of an election coming as at July 2010. A further point is that all of us, all citizens, are under an obligation to be on the electoral roll. That is one of the incidents of our responsibility as citizens.
Yet another point, which again highlights the logical inconsistencies that are contained in the argument in favour of the changes, is that if you accept the argument at its face value, then frankly you ought to take the argument to its logical conclusion—that is, the rolls ought be open until 6 pm on polling day because people might be disenfranchised because they have not had the opportunity to get on the roll at any time prior to 6 pm on polling day. The substantive point here is that a balance needs to be struck between, on the one hand, the importance of maximising enfranchisement—getting as many people as possible on the rolls able to exercise their right to vote—and, on the other hand, considerations of administrative efficiency and, very importantly, protection against the risk of electoral fraud. The arguments that are put in favour of changing from the position which applied under the 2006 bill are unpersuasive. They would not of themselves convince an objective observer that there is any need to change from the position as it stood under the law following the 2006 legislation.
But the second point we make on this side of the House about our position on this bill is that it is not simply a question of whether provisions maximise the capacity of people to get onto the roll; there is another important consideration which the parliament ought to have regard to as it assesses the merits of this proposed change—that is, the extent to which there is capacity for fraud on the electoral system, fraud on the Australian people, to be perpetrated. Is there a risk, if the Electoral Commission is required to process very large numbers of enrolments at a date very shortly before the polling day itself, that you expose the system to a greater risk of fraud? We say on this side of the House that there is a significant risk. That is not a risk to be taken lightly, that is not a risk to be dismissed, and that is a substantive reason why we are not attracted to the provision of this bill in relation to the deadline for enrolment.
The third point I wish to make is that the party bringing forward this change is, regrettably, a party which has form in bringing forward changes which are supposedly motivated by a high-minded concern for the public interest, but which are substantively due to a desire to achieve partisan political advantage. I am sorry to say we have seen that kind of thing time after time, both at a federal and at a state level, in relation to reforms proposed by the Labor Party. For example, in New South Wales we have seen the Labor government change the rules in relation to political donations by banning the receipt of donations from certain categories of donors, including tobacco, alcohol and gaming after many years—almost 15 years—of enthusiastically hoovering up donations from those very sources. The hypocrisy is rank indeed.
We also saw, in the case of the Shepherdson royal commission in Queensland some years ago, the unedifying spectacle of a former State Secretary of the Australian Labor Party appearing before the royal commission to be asked about the address at which he was enrolled on the roll some years before when he was starting out in the pursuit of his political ambitions. He was reluctantly forced to concede in cross-examination that in fact he had never lived at that address. Apparently, it was an unfortunate administrative error. It was such an unfortunate administrative error that the consequence was, after taking a recess to consider his position, he abruptly resigned as a member of the Queensland parliament. That was a state secretary of the Labor Party in Queensland. This is the party which is putting forward this piece of legislation today. It causes me no pleasure to say it, but this is the party, regrettably, which has form in seeking to amend the electoral legislation for partisan political advantage.
We do not support this provision of the bill which is before this House today. We do not accept the arguments that people are in some way disenfranchised because they are unable to get on the roll throughout the period which is available to them to do so. We make the point that the risk of electoral fraud is a serious one and not to be dismissed lightly. With regret, we ask questions about the good faith of those who are putting forward this legislation. We do that, sadly, based upon an objective consideration of the track record of the party which is putting forward these provisions.
I rise to support the Electoral and Referendum Amendment (Enrolment and Prisoner Voting) Bill 2010. The bill will update the text of the Commonwealth Electoral Act 1918 to reflect the current constitutional position as declared by the High Court to (1) reinstate the previous disqualification for prisoners serving a sentence of imprisonment of three years or longer from voting in a federal election and (2) restore the close of rolls period to seven days after the date of the writ for a federal election.
The previous speaker, the member for Bradfield, talked about good faith. What more good faith can there be than to bring forward legislation that reflects a High Court decision—a majority decision—in two cases that is about enfranchising electors? In all my time here, the Labor Party, this side of the parliament, has been about enfranchising people. In all my 21 years here and in my involvement in the parliamentary Joint Committee on Electoral Matters it is the other side of parliament that is about disenfranchising. That is what this debate is about.
I will quote from the High Court decision of Roach. It was a 4-2 majority with Chief Justice Gleeson in the majority. Justices Gummow, Kirby and Crennan gave a joint judgment with Justices Hayne and Heydon in the minority. It is worth reflecting what they say on the matter. Chief Justice Gleeson said, at paragraph 10:
What is the rationale for the exclusion of prisoners? Two possibilities may be dismissed. First, the mere fact of imprisonment is not of itself the basis of exclusion.
At paragraph 11, he said:
The rationale for the exclusion from the franchise of some prisoners, that is, those who have been convicted and are serving sentences, either of a certain duration or of no particular minimum duration, must lie in the significance of the combined facts of offending and imprisonment, as related to the right to participate in political membership of the community.
In effect, he finished his judgment by saying, at paragraph 24:
The step that was taken by Parliament in 2006 of abandoning any attempt to identify prisoners who have committed serious crimes by reference to either the term of imprisonment imposed or the maximum penalty for the offence broke the rational connection necessary to reconcile the disenfranchisement with the constitutional imperative of choice by the people.
Justices Gummow, Kirby and Crennan had this to say in their judgment, at paragraph 85:
Is the disqualification for a ‘substantial’ reason? A reason will answer that description if it be reasonably appropriate and adapted to serve an end which is consistent or compatible with the maintenance of the constitutionally prescribed system of representative government.
When used here, the phrase ‘reasonably appropriate and adapted’ does not mean essential or unavoidable. Further on it says:
… in this context there is little difference between what is conveyed by that phrase and the notion of “proportionality”. What upon close scrutiny is disproportionate or arbitrary may not answer to the description reasonably appropriate and adapted for an end consistent or compatible with observance of the relevant constitutional restraint upon legislative power.
And then this is what they say at paragraph 95:
The legislative pursuit of an end which stigmatises offenders by imposing a civil disability during any term of imprisonment takes s 93(8AA) beyond what is reasonably appropriate and adapted (or “proportionate”) to the maintenance of representative government. The net of disqualification is cast too wide by s 93(8AA) ….
The result is that sections 93(8AA) and 208(2C) are invalid and question 1 in the amended special case should be answered accordingly.
That is why we are here today debating this piece of legislation. The High Court basically said that the former government went too far. They did the same thing when they cut back seven days as being the day when you can get on the roll from the time at which an election is called. The High Court in that case, which is known as Rowe’s case, had Chief Justice French in the majority, with Justices Gummow and Bell doing a joint judgment, and Justice Crennan, and in the minority Justices Hayne, Heydon and Kiefel. Again, it is about enfranchising. At paragraph 166:
In particular, the requirement in Roach of any disqualification be for a substantial reason cannot be answered simply by what may appear to have been legislative purpose. A legislative purpose of preventing such fraud before it is able to occur, where there has not been previous systemic fraud associated with the operation of the seven-day period before the changes are made by the 2006 act, does not supply a substantial reason for the practical operation of the 2006 act in disqualifying large numbers of electors. That practical operation goes beyond any advantage of preserving the integrity of the electoral process from a hazard which so far has not materialised to any significant degree.