Gary Gray (Brand, Australian Labor Party, Minister for the Public Service and Integrity) Share this | Link to this | Hansard source

I present a supplementary explanatory memorandum to the bill and seek leave of the House to move government amendments (1) to (14), as circulated, together.

Leave granted.

I move government amendments (1) to (14):

(1) Clause 2, page 2 (table item 2), omit "25", substitute "24".

(2) Clause 2, page 2 (table item 5), omit "items 49 and 50", substitute "item 50".

(3) Schedule 1, item 24, page 6 (line 15), after "officer", insert "(the reporting officer)".

(4) Schedule 1, item 24, page 6 (lines 23 to 27), omit subsections 238B(3) and (4), substitute:

Report

(3) The reporting officer must prepare a report about the circumstances in which the ballot-box was opened before the close of the poll other than in accordance with this Act (including details of any witnesses).

Material to be given to DRO

(4) The reporting officer must give the report, parcel, ballot-box and any other thing the reporting officer considers appropriate to the DRO for the Division as soon as practicable.

Role of DRO

(5) The DRO for the Division must examine the report, parcel, ballot-box and any other thing given to the DRO under subsection (4) and then give them to the Australian Electoral Officer (the AEO) for the State or Territory concerned.

Role of AEO

(6) The AEO must:

  (a) open the parcel and examine the ballot papers not enclosed in envelopes, the envelopes, the report, the ballot-box and any other thing given to the AEO under subsection (5); and

  (b) for each ballot paper not enclosed in an envelope—decide whether the ballot paper is to be included in the scrutiny under Part XVIII (see subsections (7) and (8)); and

(c) for each envelope—decide whether the envelope is to be included in the preliminary scrutiny conducted in accordance with Schedule 3 (see subsections (9) and (10)).

(7) The AEO must decide that a ballot paper is to be included in the scrutiny under Part XVIII unless the AEO is satisfied that the ballot paper has been fraudulently altered or otherwise interfered with so as not to reflect the voter's intention.

(8) If the AEO decides that a ballot paper is not to be included in the scrutiny under Part XVIII, the ballot paper is to be excluded from that scrutiny.

(9) The AEO must decide that an envelope is to be included in the preliminary scrutiny conducted in accordance with Schedule 3 unless the AEO is satisfied that the envelope has been fraudulently altered.

(10) If the AEO decides that an envelope is not to be included in the preliminary scrutiny conducted in accordance with Schedule 3, the envelope is to be excluded from that scrutiny.

(11) The AEO must, after examining all the ballot papers and envelopes:

  (a) place in a parcel the ballot papers that are to be included in the scrutiny under Part XVIII; and

  (b) place in another parcel the ballot papers that are to be excluded from the scrutiny under Part XVIII; and

(c) place in another parcel the envelopes that are to be included in the preliminary scrutiny conducted in accordance with Schedule 3; and

  (d) place in another parcel the envelopes that are to be excluded from the preliminary scrutiny conducted in accordance with Schedule 3; and

(e) seal each parcel; and

  (f) write on each parcel an indication of the type of ballot papers or envelopes enclosed and that the ballot-box has been prematurely opened; and

(g) sign each parcel.

(12) The AEO must give the parcels referred to in paragraphs (11)(a) and (c) to the DRO for the Division, and the ballot papers or envelopes in the parcels are to be included in the scrutiny under Part XVIII or in the preliminary scrutiny conducted in accordance with Schedule 3, as the case requires.

(13) Before the declaration of the poll in the election, the AEO must advise the Electoral Commissioner and the candidates concerned of the following:

  (a) a ballot-box was opened before the close of the poll other than in accordance with this Act;

  (b) the number of ballot papers the AEO examined;

(c) the number of ballot papers that were excluded from the scrutiny under Part XVIII because the AEO was satisfied that they had been fraudulently altered or otherwise interfered with so as not to reflect the voter's intention;

  (d) the number of envelopes the AEO examined;

(e) the number of envelopes that were excluded from the preliminary scrutiny conducted in accordance with Schedule 3 because the AEO was satisfied that they had been fraudulently altered.

Preservation of material

(14) The AEO is responsible for the safe custody, in accordance with the directions of the Electoral Commissioner, of the parcels referred to in paragraphs (11)(b) and (d), the ballot-box and the report and any other thing given to the AEO under subsection (5) until they are destroyed.

(15) Subject to Part XXII, the Electoral Commissioner may direct that the things referred to in subsection (14) be destroyed if:

  (a) not less than 6 months have elapsed since the declaration of the poll in the election in which the things were used; and

  (b) the things are no longer required by the Electoral Commission for the performance of its functions.

(5) Schedule 1, item 25, page 6 (lines 28 and 29), omit the item.

(6) Schedule 1, item 26, page 6 (line 30) to page 7 (line 5), omit the item, substitute:

26 At the end of subsection 248(2)

  Add:

  ; and (c) for section 238A—a reference in paragraph 238A(3)(b) to the Divisional Returning Officer for the Division is taken to be a reference to the Electoral Commission.

(7) Schedule 1, page 7 (after line 7), after item 27, insert:

27A Subsections 328B(2) and (3)

  Repeal the subsections.

(8) Schedule 1, page 7, after proposed item 27A, insert:

27B Paragraph 328B(4)(d)

  Omit "subsections (1) and (2)", substitute "subsection (1)".

(9) Schedule 1, page 7, after proposed item 27B, insert:

27C After section 339

  Insert:

339A Officers not to interfere with etc. ballot -boxes or ballot papers

     An officer commits an offence if:

  (a) the officer does an act; and

  (b) the act results in the unlawful destruction of, taking of, opening of, or interference with, a ballot-box or a ballot paper.

Penalty:   Imprisonment for 6 months.

(10) Schedule 1, item 32, page 7 (line 26), after "officer", insert "(the reporting officer)".

(11) Schedule 1, item 32, page 8 (lines 5 to 8), omit subsections 41AB(3) and (4), substitute:

Report

(3) The reporting officer must prepare a report about the circumstances in which the ballot-box was opened before the close of voting other than as mentioned in subsection 29(2) (including details of any witnesses).

Material to be given to DRO

(4) The reporting officer must give the report, parcel, ballot-box and any other thing the reporting officer considers appropriate to the DRO for the Division as soon as practicable.

Role of DRO

(5) The DRO for the Division must examine the report, parcel, ballot-box and any other thing given to the DRO under subsection (4) and then give them to the Australian Electoral Officer (the AEO) for the State or Territory concerned.

Role of AEO

(6) The AEO must:

  (a) open the parcel and examine the ballot-papers not enclosed in envelopes, the envelopes, the report, the ballot-box and any other thing given to the AEO under subsection (5); and

  (b) for each ballot-paper not enclosed in an envelope—decide whether the ballot-paper is to be included in the scrutiny under Part VI (see subsections (7) and (8)); and

(c) for each envelope—decide whether the envelope is to be included in the preliminary scrutiny conducted in accordance with Schedule 4 (see subsections (9) and (10)).

(7) The AEO must decide that a ballot-paper is to be included in the scrutiny under Part VI unless the AEO is satisfied that the ballot-paper has been fraudulently altered or otherwise interfered with so as not to reflect the voter's intention.

(8) If the AEO decides that a ballot-paper is not to be included in the scrutiny under Part VI, the ballot-paper is to be excluded from that scrutiny.

(9) The AEO must decide that an envelope is to be included in the preliminary scrutiny conducted in accordance with Schedule 4 unless the AEO is satisfied that the envelope has been fraudulently altered.

(10) If the AEO decides that an envelope is not to be included in the preliminary scrutiny conducted in accordance with Schedule 4, the envelope is to be excluded from that scrutiny.

(11) The AEO must, after examining all the ballot-papers and envelopes:

  (a) place in a parcel the ballot-papers that are to be included in the scrutiny under Part VI; and

  (b) place in another parcel the ballot-papers that are to be excluded from the scrutiny under Part VI; and

(c) place in another parcel the envelopes that are to be included in the preliminary scrutiny conducted in accordance with Schedule 4; and

  (d) place in another parcel the envelopes that are to be excluded from the preliminary scrutiny conducted in accordance with Schedule 4; and

(e) seal each parcel; and

  (f) write on each parcel an indication of the type of ballot-papers or envelopes enclosed and that the ballot-box has been prematurely opened; and

(g) sign each parcel.

(12) The AEO must give the parcels referred to in paragraphs (11)(a) and (c) to the DRO for the Division, and the ballot-papers or envelopes in the parcels are to be included in the scrutiny under Part VI or in the preliminary scrutiny conducted in accordance with Schedule 4, as the case requires.

(13) Before publication in the Gazette of the statement by the Electoral Commissioner showing the result of the referendum, the AEO must advise the Electoral Commissioner of the following:

  (a) a ballot-box was opened before the close of voting other than as mentioned in subsection 29(2);

  (b) the number of ballot-papers the AEO examined;

(c) the number of ballot-papers that were excluded from the scrutiny under Part VI because the AEO was satisfied that they had been fraudulently altered or otherwise interfered with so as not to reflect the voter's intention;

  (d) the number of envelopes the AEO examined;

(e) the number of envelopes that were excluded from the preliminary scrutiny conducted in accordance with Schedule 4 because the AEO was satisfied that they had been fraudulently altered.

Preservation of material

(14) The AEO is responsible for the safe custody, in accordance with the directions of the Electoral Commissioner, of the parcels referred to in paragraphs (11)(b) and (d), the ballot-box and the report and any other thing given to the AEO under subsection (5) until they are destroyed.

(15) Subject to Part VIII, the Electoral Commissioner may direct that the things referred to in subsection (14) be destroyed if:

  (a) not less than 6 months have elapsed since the publication in the Gazette of the statement by the Electoral Commissioner showing the result of the referendum in which the things were used; and

  (b) the things are no longer required by the Electoral Commission for the performance of its functions.

(12) Schedule 1, item 49, page 9 (lines 15 and 16), omit the item.

(13) Schedule 1, item 50, page 9 (lines 17 to 22), omit the item, substitute:

50 At the end of subsection 75(2)

  Add:

  ; and (c) for section 41AA—a reference in paragraph 41AA(3)(b) to the DRO for the Division is taken to be a reference to the Electoral Commission.

(14) Schedule 1, page 9 (after line 24), after item 51, insert:

51A After section 130

  Insert:

130A Officers not to interfere with etc. ballot -boxes or ballot -papers

     An officer commits an offence if:

  (a) the officer does an act; and

  (b) the act results in the unlawful destruction of, taking of, opening of, or interference with, a ballot-box or a ballot-paper.

Penalty:   Imprisonment for 6 months.

The Electoral and Referendum Amendment (Improving Electoral Administration) Bill 2012 implements recommendations 3, 9, 10, 11, 15, 23, 29 and 30 made by the Joint Standing Committee on Electoral Matters in its report on the 2010 federal election. One of the proposed amendments sought to change the law in situations where ballot boxes were opened other than in accordance with electoral legislation. Following the introduction of the bill on 29 November 2012 it was referred to the Joint Standing Committee on Electoral Matters. The joint standing committee considered the bill and reported on 27 February 2013.

The committee recommended an amendment to the proposed provisions that will deal with the situation where ballot boxes are opened other than in accordance with the legislation. The recommendation covers two points. In some instances ballots that are held in a box which is opened not in accordance with the legislation should be saved, and there should be a specific offence written to apply to officers who interfere with ballot boxes or ballot papers. In reviewing this matter I am persuaded by the reasoning contained in the Joint Standing Committee on Electoral Matters report that this measure should be amended. I thank the Joint Standing Committee on Electoral Matters for its work in improving this measure and I also acknowledge in particular the contributions of the chair of the joint standing committee, the member for Banks, and the shadow minister of state, the member for Mackellar.

The government has also taken this opportunity to make a small technical amendment to the rules relating to how-to-vote cards, which are set out at section 328B of the Commonwealth Electoral Act 1918. The government considers that it is unnecessary to specify the font size to be used for authorisation details, and these amendments will omit these provisions. I am moving government amendments to accept the recommendations of the Joint Standing Committee on Electoral Matters and to amend proposed section 238B to introduce a procedure for dealing with ballots contained in an unlawfully opened ballot box. This procedure may result in some ballots being included in the count. The Australian electoral officer for each state or territory will examine the ballots and ballot boxes and determine which ballots should be saved and advise the Electoral Commissioner and candidates in the election of the details relating to the ballots. A new offence is also established at section 339A, dealing with officers not interfering with ballot boxes or ballot papers.

Finally, I am moving government amendments to omit subsections 328B(2) and 328B(3) of the Commonwealth Electoral Act, which deal with how-to-vote cards.

Mrs Bronwyn Bishop (Mackellar, Liberal Party, Shadow Minister for Seniors) Share this | Link to this | Hansard source

In the course of the Joint Standing Committee on Electoral Matters discussions on the Electoral and Referendum Amendment (Improving Electoral Administration) Bill it seemed to me that the proposal by the Electoral Commission to eliminate from scrutiny all ballot papers contained in a ballot box which has been opened prematurely—that is, before 6 pm on election day—was an invitation to unscrupulous behaviour, to allowing someone to tamper with a box in order to get rid of those ballot papers if they knew the sort of polling place they had come from. It also meant that an elector would be denied their validly cast vote through no fault of their own. I argued that way fairly vociferously, and I am delighted to say that the chairman and other members of the committee, together with some witnesses who appeared before us, agreed with that point of view and the result is this amendment as outlined by the Special Minister of State.

I do have some problems with the way this amendment has been drafted. I think it would be preferable if there were a count on the night of the ballot papers, which would allow us to know whether or not it was likely to result in an appeal to the Court of Disputed Returns and would allow the ballot papers to be properly tallied against those that had been issued. I did have drafted certain amendments, which are set out in the report of the committee, and the committee took the approach of doing the count on the night. The way in which the government has drafted the amendments means that the votes are parcelled up and sent to the DRO, the DRO sends them to the Australian electoral officer, who then looks at the ballot papers and makes a decision as to whether any of them have been fraudulently or otherwise tampered with so as to misdirect the intention of the voter. It is an unusually difficult thing for an electoral officer to determine what is a fraudulently tampered with vote and, because it is outside scrutiny, scrutineers will not be allowed at the process. I think that is a serious problem. However, the opposition will allow these amendments to pass, and should we be successful in being elected at the next election we will take action to clean up what we think are deficiencies in the draft as it is being presented.

We agree with the amendment that changes the penalty for electoral officers to make it the same as it is for an ordinary civilian. In the way the Electoral Act is currently presented, if you are an electoral official you get a lesser penalty than if you are an ordinary punter. We did not think that was right, and we are pleased to see that change. We think also that the provisions dealing with font are equally sensible amendments and will be agreeing with those.

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

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

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

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

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

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

Mrs Bronwyn Bishop (Mackellar, Liberal Party, Shadow Minister for Seniors) Share this | Link to this | Hansard source

I have a couple of points. Firstly, the member for Banks said he was dealing with the question of envelopes. Because of the way the ballots can become mixed, in that box will be ballot papers as well as envelopes, so you are dealing with both. The other point is about scrutineers. The act says:

A candidate may appoint scrutineers to represent the candidate at the scrutiny.

The way the amendment is written, I think it is open to interpretation that the Australian electoral official who is in fact opening the box, once it has been sent to him from the DRO together with the reports, examines the envelopes and the ballots and makes the decision about which ones are to be admitted to the scrutiny, and that is all of those ballots and envelopes unless he determines that they have been fraudulently or otherwise dealt with. Having made that decision, all other ballots will be put into the scrutiny. So what he is doing is not part of the scrutiny as set out in the act, and therefore there will not be scrutineers. It is certainly open to that interpretation, and I think we should be alert to that.

The other thing is that the ballots and envelopes that are admitted to the scrutiny or placed in the scrutiny by the AEO will in fact no longer be identified. So, although the balance of envelopes which the AEO determines should not be admitted to the scrutiny will remain identified, the ballot papers which he has determined are to be validly put into the scrutiny will no longer be identified, and therefore a Court of Disputed Returns would be unable to make a determination as to whether the AEO has made the right decision about those ballot papers.

They are the concerns I have. But the opposition are agreeing to allow the amendments to save the votes to go forward; that is the most important thing. And I do think it is less likely to occur in this coming election, unlike the last election. At the last election, the Australian Electoral Commission had not given adequate advice to all its electoral officers as to the change in the law that turned declaration votes, which were pre-poll votes, into ordinary votes, and the ramification of that was that as a declaration vote it could be opened before 6 pm on election day but as an ordinary vote it could not. That was the origin of the difficulty. Hopefully, this time the Electoral Commission will give correct information to all of its officers and that will not happen.

However, we have not touched on one question which remains for another day: once those ballot papers have been counted on the night, they are parcelled up into plastic bags now, I understand; but, if those plastic bags are tampered with, there is no provision in the act for what happens to those.

So we still have an area which we may have to deal with subsequently but, for the purposes of dealing specifically with the recommendations that came out of what happened in the seats of Boothby and Flynn, I think it is important at this stage that we are agreeing to let those amendments go through. And then, as I said, should we be successful in being elected, we will address those other issues in government.

Gary Gray (Brand, Australian Labor Party, Minister for the Public Service and Integrity) Share this | Link to this | Hansard source

I thank the shadow minister for her contribution. I also thank the member for Banks, the chairman of the Joint Standing Committee on Electoral Matters, and of course the shadow minister, the deputy chair. What we have just witnessed demonstrates the real value to our parliament and to our process of discussing, debating and resolving changes to the Electoral Act, which is unique. It allows a properly constructed committee of the parliament after each election to contemplate elections, to contemplate fixing problems that arise and making improvements to the act. I thank both of them for their contributions.

Steve Georganas (Hindmarsh, Australian Labor Party) Share this | Link to this | Hansard source

The question is that the amendments be agreed to.

Question agreed to.

Mrs Bronwyn Bishop (Mackellar, Liberal Party, Shadow Minister for Seniors) Share this | Link to this | Hansard source

by leave—I move amendments (1) to (14) as circulated in my name together:

(1) Clause 2, page 2 (table item 2), omit "25", substitute "24".

(2) Clause 2, page 2 (table item 5), omit "items 49 and 50", substitute "item 50".

(3) Schedule 1, item 24, page 6 (line 15), after "officer", insert "(the reporting officer)".

(4) Schedule 1, item 24, page 6 (lines 23 to 27), omit subsections 238B(3) and (4), substitute:

Report

(3) The reporting officer must prepare a report about the circumstances in which the ballot-box was opened before the close of the poll other than in accordance with this Act (including details of any witnesses).

Material to be given to DRO

(4) The reporting officer must give the report, parcel, ballot-box and any other thing the reporting officer considers appropriate to the DRO for the Division as soon as practicable.

Role of DRO

(5) The DRO for the Division must examine the report, parcel, ballot-box and any other thing given to the DRO under subsection (4) and then give them to the Australian Electoral Officer (the AEO) for the State or Territory concerned.

Role of AEO

(6) The AEO must:

  (a) open the parcel and examine the ballot papers not enclosed in envelopes, the envelopes, the report, the ballot-box and any other thing given to the AEO under subsection (5); and

  (b) for each ballot paper not enclosed in an envelope—decide whether the ballot paper is to be included in the scrutiny under Part XVIII (see subsections (7) and (8)); and

(c) for each envelope—decide whether the envelope is to be included in the preliminary scrutiny conducted in accordance with Schedule 3 (see subsections (9) and (10)).

(7) The AEO must decide that a ballot paper is to be included in the scrutiny under Part XVIII unless the AEO is satisfied that the ballot paper has been fraudulently altered or otherwise interfered with so as not to reflect the voter's intention.

(8) If the AEO decides that a ballot paper is not to be included in the scrutiny under Part XVIII, the ballot paper is to be excluded from that scrutiny.

(9) The AEO must decide that an envelope is to be included in the preliminary scrutiny conducted in accordance with Schedule 3 unless the AEO is satisfied that the envelope has been fraudulently altered.

(10) If the AEO decides that an envelope is not to be included in the preliminary scrutiny conducted in accordance with Schedule 3, the envelope is to be excluded from that scrutiny.

(11) The AEO must, after examining all the ballot papers and envelopes:

  (a) place in a parcel the ballot papers that are to be included in the scrutiny under Part XVIII; and

  (b) place in another parcel the ballot papers that are to be excluded from the scrutiny under Part XVIII; and

(c) place in another parcel the envelopes that are to be included in the preliminary scrutiny conducted in accordance with Schedule 3; and

  (d) place in another parcel the envelopes that are to be excluded from the preliminary scrutiny conducted in accordance with Schedule 3; and

(e) seal each parcel; and

  (f) write on each parcel an indication of the type of ballot papers or envelopes enclosed and that the ballot-box has been prematurely opened; and

(g) sign each parcel.

(12) The AEO must give the parcels referred to in paragraphs (11)(a) and (c) to the DRO for the Division, and the ballot papers or envelopes in the parcels are to be included in the scrutiny under Part XVIII or in the preliminary scrutiny conducted in accordance with Schedule 3, as the case requires.

(13) Before the declaration of the poll in the election, the AEO must advise the Electoral Commissioner and the candidates concerned of the following:

  (a) a ballot-box was opened before the close of the poll other than in accordance with this Act;

  (b) the number of ballot papers the AEO examined;

(c) the number of ballot papers that were excluded from the scrutiny under Part XVIII because the AEO was satisfied that they had been fraudulently altered or otherwise interfered with so as not to reflect the voter's intention;

  (d) the number of envelopes the AEO examined;

(e) the number of envelopes that were excluded from the preliminary scrutiny conducted in accordance with Schedule 3 because the AEO was satisfied that they had been fraudulently altered.

Preservation of material

(14) The AEO is responsible for the safe custody, in accordance with the directions of the Electoral Commissioner, of the parcels referred to in paragraphs (11)(b) and (d), the ballot-box and the report and any other thing given to the AEO under subsection (5) until they are destroyed.

(15) Subject to Part XXII, the Electoral Commissioner may direct that the things referred to in subsection (14) be destroyed if:

  (a) not less than 6 months have elapsed since the declaration of the poll in the election in which the things were used; and

  (b) the things are no longer required by the Electoral Commission for the performance of its functions.

(5) Schedule 1, item 25, page 6 (lines 28 and 29), omit the item.

(6) Schedule 1, item 26, page 6 (line 30) to page 7 (line 5), omit the item, substitute:

26 At the end of subsection 248(2)

  Add:

  ; and (c) for section 238A—a reference in paragraph 238A(3)(b) to the Divisional Returning Officer for the Division is taken to be a reference to the Electoral Commission.

(7) Schedule 1, page 7 (after line 7), after item 27, insert:

27A Subsections 328B(2) and (3)

  Repeal the subsections.

(8) Schedule 1, page 7, after proposed item 27A, insert:

27B Paragraph 328B(4)(d)

  Omit "subsections (1) and (2)", substitute "subsection (1)".

(9) Schedule 1, page 7, after proposed item 27B, insert:

27C After section 339

  Insert:

339A Officers not to interfere with etc. ballot -boxes or ballot papers

     An officer commits an offence if:

  (a) the officer does an act; and

  (b) the act results in the unlawful destruction of, taking of, opening of, or interference with, a ballot-box or a ballot paper.

Penalty:   Imprisonment for 6 months.

(10) Schedule 1, item 32, page 7 (line 26), after "officer", insert "(the reporting officer)".

(11) Schedule 1, item 32, page 8 (lines 5 to 8), omit subsections 41AB(3) and (4), substitute:

Report

(3) The reporting officer must prepare a report about the circumstances in which the ballot-box was opened before the close of voting other than as mentioned in subsection 29(2) (including details of any witnesses).

Material to be given to DRO

(4) The reporting officer must give the report, parcel, ballot-box and any other thing the reporting officer considers appropriate to the DRO for the Division as soon as practicable.

Role of DRO

(5) The DRO for the Division must examine the report, parcel, ballot-box and any other thing given to the DRO under subsection (4) and then give them to the Australian Electoral Officer (the AEO) for the State or Territory concerned.

Role of AEO

(6) The AEO must:

  (a) open the parcel and examine the ballot-papers not enclosed in envelopes, the envelopes, the report, the ballot-box and any other thing given to the AEO under subsection (5); and

  (b) for each ballot-paper not enclosed in an envelope—decide whether the ballot-paper is to be included in the scrutiny under Part VI (see subsections (7) and (8)); and

(c) for each envelope—decide whether the envelope is to be included in the preliminary scrutiny conducted in accordance with Schedule 4 (see subsections (9) and (10)).

(7) The AEO must decide that a ballot-paper is to be included in the scrutiny under Part VI unless the AEO is satisfied that the ballot-paper has been fraudulently altered or otherwise interfered with so as not to reflect the voter's intention.

(8) If the AEO decides that a ballot-paper is not to be included in the scrutiny under Part VI, the ballot-paper is to be excluded from that scrutiny.

(9) The AEO must decide that an envelope is to be included in the preliminary scrutiny conducted in accordance with Schedule 4 unless the AEO is satisfied that the envelope has been fraudulently altered.

(10) If the AEO decides that an envelope is not to be included in the preliminary scrutiny conducted in accordance with Schedule 4, the envelope is to be excluded from that scrutiny.

(11) The AEO must, after examining all the ballot-papers and envelopes:

  (a) place in a parcel the ballot-papers that are to be included in the scrutiny under Part VI; and

  (b) place in another parcel the ballot-papers that are to be excluded from the scrutiny under Part VI; and

(c) place in another parcel the envelopes that are to be included in the preliminary scrutiny conducted in accordance with Schedule 4; and

  (d) place in another parcel the envelopes that are to be excluded from the preliminary scrutiny conducted in accordance with Schedule 4; and

(e) seal each parcel; and

  (f) write on each parcel an indication of the type of ballot-papers or envelopes enclosed and that the ballot-box has been prematurely opened; and

(g) sign each parcel.

(12) The AEO must give the parcels referred to in paragraphs (11)(a) and (c) to the DRO for the Division, and the ballot-papers or envelopes in the parcels are to be included in the scrutiny under Part VI or in the preliminary scrutiny conducted in accordance with Schedule 4, as the case requires.

(13) Before publication in the Gazette of the statement by the Electoral Commissioner showing the result of the referendum, the AEO must advise the Electoral Commissioner of the following:

  (a) a ballot-box was opened before the close of voting other than as mentioned in subsection 29(2);

  (b) the number of ballot-papers the AEO examined;

(c) the number of ballot-papers that were excluded from the scrutiny under Part VI because the AEO was satisfied that they had been fraudulently altered or otherwise interfered with so as not to reflect the voter's intention;

  (d) the number of envelopes the AEO examined;

(e) the number of envelopes that were excluded from the preliminary scrutiny conducted in accordance with Schedule 4 because the AEO was satisfied that they had been fraudulently altered.

Preservation of material

(14) The AEO is responsible for the safe custody, in accordance with the directions of the Electoral Commissioner, of the parcels referred to in paragraphs (11)(b) and (d), the ballot-box and the report and any other thing given to the AEO under subsection (5) until they are destroyed.

(15) Subject to Part VIII, the Electoral Commissioner may direct that the things referred to in subsection (14) be destroyed if:

  (a) not less than 6 months have elapsed since the publication in the Gazette of the statement by the Electoral Commissioner showing the result of the referendum in which the things were used; and

  (b) the things are no longer required by the Electoral Commission for the performance of its functions.

(12) Schedule 1, item 49, page 9 (lines 15 and 16), omit the item.

(13) Schedule 1, item 50, page 9 (lines 17 to 22), omit the item, substitute:

50 At the end of subsection 75(2)

  Add:

  ; and (c) for section 41AA—a reference in paragraph 41AA(3)(b) to the DRO for the Division is taken to be a reference to the Electoral Commission.

(14) Schedule 1, page 9 (after line 24), after item 51, insert:

51A After section 130

  Insert:

130A Officers not to interfere with etc. ballot -boxes or ballot -papers

     An officer commits an offence if:

  (a) the officer does an act; and

  (b) the act results in the unlawful destruction of, taking of, opening of, or interference with, a ballot-box or a ballot-paper.

Penalty:   Imprisonment for 6 months.

These amendments relate to different parts of the bill and are ones on which we, in the opposition, have been very consistent. They relate to the question of automatic enrolment. What this bill does is amend the Taxation Administration Act so as to allow the Australian Taxation Office or its officers to give to the Australian Electoral Commission lists of taxpayers and their details for the purposes of automatic enrolment. We find that absolutely unacceptable on two counts. Firstly, we are totally and utterly philosophically opposed to the concept of automatic enrolment.

We say, and the Commonwealth Electoral Act says, that the prime duty of the Australian Electoral Commission is to uphold the integrity of the roll. This means that people have to have confidence that the roll as it is comprised is accurate. Court decisions since the 1930s have said that they will not permit courts to look behind the roll—that is, to take evidence as to whether people should be on it or not—because the roll itself has to be treated as accurate and has to be final. Professor Graeme Orr writes:

Like other official public registers, such as land registers, a chief feature of electoral rolls is their finality. The purpose of a roll is to be a definitive statement of the entitlement to vote. Thus there is a rule that the roll is conclusive evidence of the entitlement to vote. Reinforcing this is the secondary rule in almost all jurisdictions that a court of disputed returns is not to inquire into the correctness of the roll.”

Therefore, preserving its integrity is fundamental to having confidence in our system.

What happens now that we have automatic enrolment and automatic upgrading of addresses is that the Electoral Commissioner is entitled to take any roll he chooses. One that he has used to date is from Centrelink, which in fact is not a single piece of data; it is anything up to 100 pieces or lists which are compiled into one. Another is the motor traffic register. And now the commission wants to add the tax office list of taxpayers. The error in these lists will be just astronomical. In 1999 a committee of this House found that there were 3.2 million more tax file numbers than there were people in the country. They found that 62 per cent of their deceased clients were not recorded as deceased. Another inquiry found that up to half a million active Medicare enrolment records were probably for people who were deceased. The inaccuracies in records or rolls that are kept for another purpose can be useful for that purpose with their inaccuracies but should not be allowed to corrupt the integrity of the electoral roll, because it is necessary for us to have absolute confidence in it. The opposition feels very strongly on that and would be looking to repeal automatic enrolment. Certainly it will be vociferously rejecting the proposal to allow the tax office to provide information to the Electoral Commissioner. In fact, it is an offence currently under the law for that to occur.

What this legislation will do is remove that offence if it is for the purposes of the Electoral Commissioner. If it goes to somebody else, it will still be an offence. There is the inaccuracy of the material and the fact that the electoral office is really not capable of determining its accuracy or otherwise. It writes a letter to the person at the address that is on that roll, and the person could quite easily be at another address. When the electoral office does not get back a letter saying, 'That's not me because I'm not here'—which is a stupidity to think that someone who is not there could write back and say 'I'm not here'—it means that the information is automatically wrong.

Steve Georganas (Hindmarsh, Australian Labor Party) Share this | Link to this | Hansard source

Order! The member's time has expired. I call the Special Minister of State.

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

Let her speak again.

Gary Gray (Brand, Australian Labor Party, Minister for the Public Service and Integrity) Share this | Link to this | Hansard source

She can continue speaking.

Steve Georganas (Hindmarsh, Australian Labor Party) Share this | Link to this | Hansard source

The debate is continuing. You can speak, Member for Mackellar.

Mrs Bronwyn Bishop (Mackellar, Liberal Party, Shadow Minister for Seniors) Share this | Link to this | Hansard source

The second part of the bill that we are opposing specifically is removing the necessity for someone who is seeking a prepoll vote to sign a certificate as to the reason they are in fact entitled to seek a prepoll vote. We believe the legislation has turned a prepoll vote from being a declaration vote into an ordinary vote, and the real purpose of that was to allow those votes to be counted on the night so that we get a more accurate call on the night of who is likely to win the election instead of having to wait for a period of days or sometimes weeks for those declaration votes to be dealt with. So we do believe that it is sensible that the certificate that is presently required to be signed should continue to be signed. The reason is that we are philosophically opposed to the concept that the Australian Electoral Commissioner, together with the government, seems to be fostering: that you do not talk about 'polling day'; you talk about a 'polling period'.

We do not believe that that is the right course of action to follow. The practice has developed in recent times that political parties release their manifestoes, for want of a better term, later and later in the election period itself, which means that many people can vote prior to even hearing the outline of the policies that the leaders are giving in order to make a judgement. There is a lot of material that is available in the last few days leading up to the election day, and it does mean that the people who are voting earlier and earlier are not having the benefit of seeing that material.

For a similar reason, we are moving an amendment to change a provision in the bill which requires that you cannot make an application for a prepoll vote earlier than the fourth day after the close of nominations to the 11th day, which means, in effect, under the government's proposals, it would be 19 days of prepolling and, under our proposal, it would be 12 days of prepolling. We think that 12 days is quite adequate, together with the requirement still to state why it is that you cannot turn up on polling day. Also, as I did point out, as the Prime Minister has chosen on this occasion to announce that election day will be on 14 September 2013 and that happens to be, for the Jewish community, Yom Kippur, which is a very sacred day for them, obviously they will be unable to vote on that day. That is a very legitimate reason for using a prepoll vote.

So there is a need for the provision for prepoll, just as there is a need for postal votes. But with postal votes we have remained, again, very strong on the fact that there is a need for political material to be included with the ballot paper—that the person to whom the AEC is going to send the ballot paper should be entitled to receive political material, just as anyone who turns up on polling day will receive political material.

So we are moving amendments to the Commonwealth Electoral Act, to the Referendum (Machinery Provisions) Act, and to the Taxation Administration Act 1953. We believe that should those amendments be made then the bill would be in a much better form and the interests of electors would be served.

Gary Gray (Brand, Australian Labor Party, Minister for the Public Service and Integrity) Share this | Link to this | Hansard source

I thank the shadow minister for her contribution. I would just make some observations about the opposition's amendments. Firstly, what we are dealing with here is direct updates and direct enrolments. We are not dealing with automatic enrolments. We are dealing with measures that are designed to address the nearly 1.5 million eligible Australians who are not currently on the electoral roll. And we are dealing with trusted sources of information, and only trusted sources of information.

The changes that were made to the act in 2012 were changes which improved the integrity of the electoral roll—they did not diminish it—and these measures further enhance the integrity of the electoral roll. Further, the shadow minister points to the removal of the requirement for a declaration to be made in application for an early vote. This really brings the Electoral Act into line with current custom and voting practice. Increasingly people are seeking to vote early, so increasingly we need to have an Electoral Act and a process which accommodate that need in our community. While the shadow minister and I would agree on a voter listening to all of the arguments and concluding appropriately, on the eve of the election and consistent with media blackouts 48 hours before elections—the idea of the one-day national decision—our country and its 14 million voters think differently, and people do wish to vote early.

In my own electorate there are a very large number of mine workers, and it is often the case that those mine workers are away during election week and, even under the existing provisions, have difficulty casting their votes. These measures will make it easier and also facilitate the voting process by giving greater certainty as to when earlier voting will take place. The measures respond to recommendations of the Australian Electoral Commission and are supported by the majority view of the Joint Standing Committee on Electoral Matters.

The opposition's amendments also make the period for early voting shorter than it currently is. In 2007, my first election, I had the great pleasure of being invited down to Stirling Navy base for the departure of an Australian vessel heading off to the Gulf. The then defence minister Brendan Nelson spoke eloquently as the ship left, and every one of those crewmembers who were domiciled in Rockingham in my electorate were able to vote, and vote they did.

I have mentioned the importance of fly-in fly-out workers, and through Northern Queensland drive-in drive-out workers are important. The nature of our economy is changing. The nature of the way in which our communities interact with voting and the electoral process is changing. These changes simply keep our electoral process abreast of where our community is at, and therefore I oppose the amendments being offered by the opposition.

Mrs Bronwyn Bishop (Mackellar, Liberal Party, Shadow Minister for Seniors) Share this | Link to this | Hansard source

I would like to make just a couple of points on those comments. First of all, I think I outlined quite clearly earlier why the information that is provided from a list which is compiled for another purpose and then used either to alter the address of an enrolled voter or to add people to the roll cannot be trusted. It is quite possible that people who are not eligible to be on the roll will be placed on the roll.

Under the act as it was prior to introducing automatic enrolment and updating, it was the obligation of someone once they turned 18 or became a citizen to enrol themselves to vote. That is the compulsory part. You must compulsorily go and enrol yourself to vote. If you do not, you are subject to a penalty. What the automatic provisions have done is to say that, if the government automatically enrols you and you have not bothered to go down and enrol yourself, you are relieved of the obligation of the penalty. That penalty is removed, which really encourages people not to comply with the law and with their obligation to enrol. I and the opposition view the right to vote as a very precious right. When you do these sorts of things, you are lessening its importance because the obligation of the person to enrol is being removed.

With regard to the comment that more and more people are voting earlier, I agree with that, but they are doing it simply because they can. It is simply convenient. I may as well go down to Aldi, and I will go and have a vote at the same time. That is not the purpose that prepoll voting was introduced for. It was introduced for people who legitimately cannot turn up on election day. We believe that that shortened period is enough to satisfy that intention. Underlying this is the important principle that the coalition believes solidly in election day voting, not—as the Electoral Commission seems to be wishing it to be viewed—in an election period. Equally, the change in terminology in the Electoral Act itself from talking about 'electors' to talking about 'persons' I think is also a retrograde step.

But I think it is important that people realise that the information that is being transferred from the tax office in particular—we have always been very particular about information that leaves the tax office, and I do not believe that this is a legitimate purpose—equally is subject to putting errors into the electoral roll.

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

I acknowledge that the views of the member for Mackellar have been consistent, and she has aired those views in the substantive debate on this bill and in the hearings that we have had of the Joint Standing Committee on Electoral Matters, but I just have a fundamental disagreement with where she is coming from. Firstly, the Electoral Commission draws its information from a number of agencies. We are just adding the Australian Taxation Office. They have agreed—there have been discussions with the Australian tax office and Treasury—to participate if the legislation is amended and the tax office is added. The tax office, as I said in my speech on the second reading, has provided information to a number of other organisations, so the Electoral Commission is nothing different in relation to that. We have had that discussion. We just agree to disagree. I understand that the views of the member for Mackellar are genuinely held, but my view is that it is pretty hard to argue that the tax office is less reliable than other organisations from which the Electoral Commission draws its information. I know that the member for Mackellar has had a longstanding interaction as a member of parliament and as a senator with the tax office, but we have had that debate. I just disagree, and I think the government disagrees.

The one that puzzles me is the amendment that basically says, 'Let's contract the time for a prepoll vote from 19 days to 12 days'—in other words, one week less. I know that the member for Mackellar is being nostalgic here in terms of 'election day is election day', but that is not our modern society. The parliament and the Joint Standing Committee on Electoral Matters over a number of years—when either side has been in government, when there has been an opposition chair, or whatever—have relaxed the provisions and made it easier to have postal votes and pre-poll votes. Indeed, one of the recommendations raised for the last election was that you could have a pre-poll vote if you were outside your electorate. We just took the view that we were not going to force people in that instance to lie and maintain that they are not within eight kilometres, they are interstate, or whatever. The figures are such that pre-poll voting is for a lot of people the preferred method of voting, as against filling out the forms for a postal vote application and then having your vote excluded because there is a challenge to a signature or something else like that.

What will result here, if the opposition gets their way with this amendment, is different systems for postal vote applications and for pre-poll applications. We have already contracted by one day the ability to have a pre-poll vote so that we can make sure there is uniformity with printed ballot papers for both the Senate and the House of Representatives. So it is now the Tuesday, four days after nominations close. In that week that the opposition would take away, people going overseas would not be able to have their postal votes processed. The postal vote would be the only form of voting left for them, as against rocking down to the electoral office and doing a pre-poll vote before they go overseas. As I understand it, a lot of votes—100,000 votes—were made in that one-week period about which the opposition are now saying, 'We do not want you to have the opportunity to vote.' That is how many people voted in terms of pre-poll. As long as they are legitimate votes, as long as you are dealing with people who are entitled to vote then the method of voting—pre-poll, postal or voting on the day—should be irrelevant. We just want people to vote. We want them to participate in the system. People now have different work patterns to what they used to have. In the old days, the weekends were more like a holiday.

What I am worried about is that the opposition seem to be following the Republican approach, which featured at the last presidential election in America, and which is about restricting the availability of early voting. When you scrutinise this recommendation, it falls short of the common sense argument and the existing argument. It is actually a safe way to vote for people who cannot vote on the day—better than mucking around with applications for postal vote applications.

People are voting with their feet because they have shown more and more since 1993 that this is a preferred way and we should not cut this option out for them. I am not doubting the motives of the member for Mackellar. I think that the way we have behaved in relation to scrutinising this bill is the way we ought to behave. People have argued the philosophies and the principles. It is just that I think it is like trying to unscramble a scrambled egg. Postal votes and pre-poll votes form between them, I think, 25 per cent of the vote. I am nostalgic like the member for Mackellar, but I also say this—and I say this from a political point of view—if you did a study, you would see that it suits the Labor Party to restrict the access of pre-poll voting and postal voting in a lot of instances, based on the way those votes fall on election day. I do share the concerns of the member for Mackellar that a lot of people will vote before the launch of a party's manifestos or whatever. But what is the greater good? The greater good is more opportunity for people to actually register a vote, especially in a society that more and more is becoming mobile. I support the current situation that the government is putting forward and oppose the amendments put forward by the member for Mackellar.

Mrs Bronwyn Bishop (Mackellar, Liberal Party, Shadow Minister for Seniors) Share this | Link to this | Hansard source

I want to make it quite clear that the reasons that we are wishing to see 12 days, not 19 days, for pre-poll has got absolutely nothing to do with nostalgia. It has everything to do with a strong and logical vote, which I put, which is that I want the voters to be well informed when they are casting their ballots. That means having the ability to hear and judge the manifestos given by the political parties as they launch their campaigns later and later in the cycle. It also means that any issues that blow up in that period are taken into account when they are casting their ballot. That is a strong, logical, deeply held argument. It has nothing to do with nostalgia.

With regard to the question of the concept of making a comparison with the voting system of the United States, nothing could be further from an irrelevancy. Our voting systems are entirely and utterly distinct, separate and different, let alone the question of the compulsory nature and preferential nature of our elections. So I do not think that what occurred in the United States elections has any bearing on the debates we are having here.

By maintaining the importance of keeping that certificate with regard to pre-poll votes we are simply reinforcing that the purpose of a pre-poll vote is not that 'I think I will go and vote today because it is easier for me to do so,' but it is because you are complying with the reasons set out in the legislation, and that you are committing yourself to saying in a public way that that is what you are doing. I think those things are important to maintain in the legislation.

So, I would simply say of the amendments we are moving, particularly that very strong argument about the Australian Taxation Office, that I think people are appalled that tax office information is being extended to the Electoral Commission. There may be other legitimate purposes for which information can be shared. I do not believe this is one of them.

To the coalition the whole concept of automatic enrolment, which corrupts the integrity of the roll, is something we will stand firmly against. With those words I am strongly and firmly moving our amendments.

Ms Anna Burke (Speaker) Share this | Link to this | Hansard source

The question is that the amendments be agreed to.

The question now is that this bill, as amended, be agreed to.

Question agreed to.

Bill, as amended, agreed to.