Tuesday, 12 February 2019
Electoral Legislation Amendment (Modernisation and Other Measures) Bill 2018; Second Reading
Thanks for the opportunity to speak on the Electoral Legislation Amendment (Modernisation and Other Measures) Bill 2018 on behalf of my colleague in the other place who's done much of the work on shepherding this legislation through in the last few months.
This legislation, which seeks to amend both the Commonwealth Electoral Act and the Referendum (Machinery Provisions) Act, does contain some primary reform. The function of the bill is contained in the first schedule. This schedule outlines a nomination checklist, similar to those used at the most recent by-elections, where a federal candidate can provide information related to their eligibility under section 44 of our Constitution. As members here would be very well aware, the issue of section 44 eligibility has plagued this parliament. In May last year, the Joint Standing Committee on Electoral Matters, JSCEM, issued its report on these eligibility issues. The committee recommended the Australian government investigate measures and strategies to mitigate the impact of section 44 on this parliament, particularly when such confusion and chaos was taking hold. Importantly, the committee noted that the power of the parliament and the High Court in these matters should be respected.
As members would recall, a checklist used to be voluntary, allowing candidates to provide information where they believed it was appropriate. Schedule 1 of this bill seeks to enforce that checklist as a compulsory requirement for every person nominating as a federal candidate. This compulsory requirement is not just important for administrative purposes but also ensures that the Australian public can have faith that, regardless of their choice of candidate, these issues have been squared away in some capacity by the time people get to the polls. Where answers are not provided to the required questions, the nomination would be invalid. Similarly, where more than one answer is provided to a required question, that nomination would also be invalid.
The Australian Electoral Commission has been given the power, by schedule 1, to ensure that such deliberate contraventions of this process can result in that rejection of a nomination. Outside of this ability to reject a nomination, JSCEM, importantly, also noted that the Australian Electoral Commissioner should not be placed in the position of having final discretion on matters related to section 44. This is to ensure that no claims of bias can be levelled at a position that is deliberately and fervently independent.
The most important feature of this checklist is to ensure that those who are deliberately seeking election with prior knowledge of ineligibility cannot avoid scrutiny. Completing this checklist does not automatically guarantee a candidate is eligible for federal office. The parliament and the judiciary rightly remain paramount in these cases for important constitutional reasons. But what this compulsory checklist does ensure is that all candidates for federal office consider their circumstances carefully and provide evidence wherever ambiguity exists. Providing deliberately false or misleading information will rightly attract a penalty under the Criminal Code, where either a maximum penalty of imprisonment for 12 months or a fine of $12,600, or both simultaneously, can apply.
The Australian public are seeking certainty—certainty that the next parliament is not plagued with the same eligibility issues as the current one. When an Australian voter casts a ballot this year, they should feel certain that their elected representative is an eligible representative under our Constitution. Obviously it would be better if this bill was not necessary, but the parliament must act before the next federal election to ensure public faith in this institution is restored.
The Joint Standing Committee on Electoral Matters is a bipartisan committee that we trust to investigate these sorts of matters, and it has recommended this action. I want to thank and acknowledge all of the members of the committee—on our side, the members for Scullin and Oxley and Senator Ketter and Senator Brown—for the work that they've put into reaching this agreement on this part of the legislation. The opposition will be supporting this important first schedule in the bill we are debating here today.
Schedules 2 and 3 of this bill are less significant. They deal with administrative changes to the AEC and alterations to the voting and scrutiny process. Although these schedules do have merit, we on this side, the Labor side, do not believe that the parliament should rush changes to our elections and electoral system without just cause. It's vital that when this parliament considers electoral law we do so with bipartisanship, consultation and consideration. It's imperative we do this not because the proposed law is overly complex or without merit but because it is a law that governs ourselves. We owe every member of this parliament the chance to scrutinise such rules and interrogate their practical application. For that reason, and thanks to bipartisan negotiation between the government and Senator Farrell, this bill will be amended in the Senate to reflect the extra work that has to go into the other schedules.
The amendments foreshadowed in the other place will reduce this legislation to only those sections necessary to the operation of the next federal election. This bill will be reduced to the compulsory checklist for all candidates and the administrative changes to ensure the efficiency of the ballot count later this year. The sections that will remain in this bill include extending the six-metre exclusion zone to pre-poll stations, consistent with normal polling booths. This is a simple but commonsense change. Administrative changes that the opposition have deemed necessary to remain in this bill also include amendments to the forwarding and processing of declaration votes, the removal of the requirement to conduct the divisional returning officer Senate count, and streamlining the process for counting and packaging House of Representatives ballot papers. These measures will improve the efficiency of the Australian Electoral Commission and assist them with the process of counting the vote.
Finally, Labor believes the sections allowing for the earlier commencement of preliminary scrutiny of declaration votes—removing the requirement to reduce postal vote applications for preliminary scrutiny and allowing for the earlier recheck of rejected declaration votes—should all remain, further assisting the commission without jeopardising the integrity of the count. Labor believes the remaining sections should be removed until such time as they can be considered and discussed properly. Labor will work with the Australian Electoral Commission to ensure that any constructive changes that are not achieved in this term of government are realised as soon as practicable in the next.
It's vital that this parliament act on the recommendations of the Joint Standing Committee on Electoral Matters and provide the certainty demanded by the Australian public. Our democracy relies on public faith, and this is one step in restoring it. Can I say again, with the arrival of the member for Scullin, how much we appreciate the work done by all members of the JSCEM on both sides of parliament to reach this conclusion and this agreement on schedule 1 and other associated matters after the good work of Senator Farrell and other colleagues in both houses and on both sides.
It's always a pleasure to follow my friend the member for Rankin, particularly when it's on legislation such as this bill, the Electoral Legislation Amendment (Modernisation and Other Measures) Bill 2018, which goes beyond the individual issues that we debate in this place to the wider questions of how we safeguard the operation of and confidence in our democracy. The bill which is before us now, as the previous speaker, the shadow minister, made clear in his remarks, responds to the work of the Joint Standing Committee on Electoral Matters, of which I've been the deputy chair for the life of this parliament. The provisions contained in the legislation before us go to two reports of that committee.
Before turning to the terms of the legislation we are debating, I should acknowledge the work of all my colleagues on that committee and in particular both chairs—Senator Reynolds, who has moved on to another role within the government, and Senator McGrath; my Labor colleagues Senators Ketter and Brown and the member for Oxley, who brings great insight to his contributions to this committee as well as all of his other roles in this place, of course; and Senator Rhiannon—the former Senator Rhiannon, I should say—who made a tremendous contribution to the work of this committee and to it functioning, as it has to do, as a genuinely multipartisan safeguard of our shared interest in the functioning of Australia's representative democracy.
I think this point is worth emphasising here, because when we deal with electoral legislation we are not dealing with the sorts of arguments that generally characterise our engagement in this place, where we bring to the parliament—to this chamber and to the other place—our concerns based on our values, our ideological viewpoints, as we test propositions that shape the lives of Australians. There must be, or there should be, real contest over those propositions if we are all to do our job. But we need to have a framework that is agreed through which we can play out these arguments. How we have regard to the most fundamental framework—other than the Constitution—of the operation of our representative democracy is a matter that requires particular care and attention on the part of all members and senators. These are, of course, critical foundations of Australia's democracy.
It is disappointing in that regard that, as we debate this significant piece of legislation, the speakers list indicates that no government members will be making contributions to this debate. This is disappointing because this is an important government bill, and I'm somewhat at a loss as to why, other than the Special Minister of State, there has been no interest among government members in contributing to this debate, although that appears to be a factor that sadly—as you'd be well aware, Deputy Speaker—is not unique to this bill. It seems to be reflective of a broader pattern.
Again I reiterate that these provisions are of critical importance to how our democracy operates and how Australians can have regard to that. The bill before us deals with three substantive matters. There is, most obviously, part of a response to the issues that relate to the disqualification of a significant number of members and senators by reason of the operation of section 44 of the Australian Constitution. Schedule 1 is the relevant component of the act that deals with this aspect.
This was a matter that the Joint Standing Committee on Electoral Matters spent quite some time considering, in particular through an extensive report released last year entitled Excluded. I was pleased that this report ultimately demonstrated the very large measure of consensus across the parties represented on the joint standing committee and that it took a broad view of the impact of section 44 in terms of not just the narrow issue of the qualification or otherwise of individual members but also the implications of this provision, as interpreted by the court, on the wider functioning of and confidence in Australian democracy.
These are matters that go beyond the scope of the provision we are debating now, but they need to be considered. While we support, as the member for Rankin made clear, the changes contained in schedule 1—which set out a checklist for candidates to complete in order to assess and make transparent their compliance or otherwise with the requirements of section 4 of the Constitution—this does not resolve all the issues. But we do support this checklist. This mirrors the checklist currently being used, which was used at the most recent series of by-elections that were conducted in the course of this parliament. In the course of those elections the non-compulsory nature of the checklist added to confusion, with some candidates choosing not to complete the checklist and—again, in my view—undermining confidence in elections where the issue of conformity with the Constitution, in terms of eligibility for office, was absolutely central. This would make this checklist, which I believe has been appropriately formed, compulsory for all candidates.
This was a matter that the Joint Standing Committee on Electoral Matters considered carefully. This step is in line with the recommendations of the committee, and I'm very pleased to see this come before the party. As I said earlier, in its report the committee urged the parliament to consider wider strategies for responding to the impact of section 44 on the parliament. I think any of us who sits in this place and any Australian who cares about representative democracy and about our multicultural society is reflecting seriously on how we can maintain the capacity of all Australians to appropriately participate in seeking office in this, Australia's parliament, as well as the concern in the wider community that goes to a lack of trust formed from the sense of uncertainty and, indeed, chaos generated by a series of by-elections and changes in Senate representation.
I am hopeful that this step—making this checklist compulsory—will attend to some of those issues and that it will enable prospective candidates to themselves think clearly, well in advance of actually nominating, about the issues they may face in seeking election to this place. I am also hopeful that it will show to the community, as clearly as we can—and there are obviously some limits to this—that candidates nominating are in all likelihood eligible to hold their office and to complete their term in office. I think that's an assurance we are all obliged to give to the wider Australian community and give now. I urge every candidate—because we are heading to an election in the near future—to consider their compliance and perhaps start considering it now, particularly those who are not seeking election through the parties presently represented in this place. Obviously for all of us here it is a key tool to consider, if we have not already done so—that our own eligibility issues are watertight and can be shown to the community to be so. We are supporting this legislation and this aspect of the legislation and call for further work to be done on the wider issues of ensuring trust and confidence.
But this legislation does go beyond that. These are changes, I think we all agree, that are necessary for the conduct of and confidence in the upcoming federal election. With that in mind, I note that it is understood that there may well be the need for some discussions—in fact, the need has been recognised in the Senate—to ensure that the provisions necessary for the operation and conduct of an election on a multipartisan, transparent and fair basis will go ahead. And so, a series of matters which we believe go beyond those terms necessary will not be proceeded with.
The shadow minister, the member for Rankin, went through those changes, and I won't reiterate them, but I want to reiterate a couple of points here. The purpose of this bill, and the purpose of these amendments, is clearly to restore trust and confidence in the operation of our democracy. The most fundamental expression of that is an election. As we move towards an election, we should, on a multipartisan basis, do those things that are necessary to make certain those ground rules are proceeded with in the terms that have been recommended by the Joint Standing Committee on Electoral Matters which have been worked through with the Australian Electoral Commission. But those other matters which have been rushed, in our view, and deserve proper consideration should not be proceeded with.
It's very clear that, should we have the opportunity to form government, we will continue with that work in consultation with the Australian Electoral Commission, the opposition and other parties to ensure that further changes are considered appropriately and debated robustly in this place, as should be the case. I know that the shadow special minister of state is appreciative of the opportunity he has had to work towards this bipartisan agreement on these important matters. So, in closing, I am looking forward to the amendment of the bill in the Senate, and its enactment as another small but significant step in restoring trust and confidence in our democracy.
The members for Scullin and Rankin have very ably explained why section 44(i) of the Constitution needed to be considered very carefully in this Electoral Legislation Amendment (Modernisation and Other Measures) Bill 2018—so that it restores the trust of the Australian people in candidates for parliament. They've also explained, as I'm sure the shadow minister for electoral matters has very capably dealt with in the Senate, the areas of the bill that we are going to agree on with the government. They include applying six-metre exclusion zones, forwarding and processing of declaration votes, removal of the requirement to conduct divisional returning officer Senate counts, allowing earlier commencement of preliminary scrutiny of declaration votes, removing the requirement to produce postal vote applications for preliminary scrutiny, allowing the early recheck of declaration votes and streamlining the process for counting and packaging House of Representatives ballot papers.
These are all parts of the micromanagement of our electoral system that are very important. One of the reasons we do this is that constant revision of the electoral system for the maximum participation by Australian citizens in our compulsory attendance system is vital for ongoing democracy. We don't want to see in Australia, as we've seen in the United States, elections decided by hanging chads—that is, different electoral systems in different states. We don't want boundaries decided by state legislatures on the basis of political preferences or how it suits certain candidates from different political parties. We don't want to exclude people because of language or residential criteria, as happens in our great sister democracy, the United States. Our aim with all electoral legislation, including these micromanagement aims, is to include as many people as possible.
I think one of the things that the opposition is most pleased about is the fundamental change that has taken place over the last few years, which is the increasing numbers of Australians who participate in a great electoral and democratic event like we're going to have in May. And that is because our Electoral Commission has abandoned the use of just snail mail to revise people's addresses. That process, where only 20 per cent of people were responding to snail mail change of addresses, was leading to a great drop-off in the number of people, particularly young people and people at rental addresses. A million people dropped off the electoral roll in the period from 2007 to 2013, and that was not in our democratic interest. I think we got down to 90 per cent of people being enrolled in the electoral process. Now, thanks to these changes by the Electoral Commission, supported by the opposition and the government, particularly pushed by us in the last period of the Rudd-Gillard government, there are now two million more people on the electoral roll. I believe that's democracy.
If we have a compulsory attendance system, it's our responsibility to ensure that the rules are fair and, as the member for Scullin and the member for Rankin have pointed out, that candidates have a checklist that is acknowledged and fair so that the Australian people have confidence in who our candidates are. It's very, very important that we have the maximum number of people who are entitled to vote actually participating. Thanks to these fundamental changes that have taken place over the last few years in the way the Electoral Commission manages people's changes of addresses, I believe in the last few years two million more people are back on the electoral roll. That is a great democratic victory for the Australian people, and I think it will have some effect on the result that takes place in this forthcoming election. I commend the changes that the opposition have agree to with the government, and I look forward to the further changes that will be made in the Senate.
Well done! I wish I could orchestrate things more often! I thank the member for Melbourne Ports. I will make some comments about his contribution in a moment. The member for Rankin and the member for Scullin, this is very important legislation, and I want to pick up on some elements of it, but, most particularly, on the comments made by the member for Melbourne Ports when he referred to the changes that have been made to ensure people don't drop off enrolments and their enrolments are kept up.
I have a particular concern about enrolment. Whilst this part of the bill doesn't directly address what I'm on about, it needs to be understood that, if we accept the propositions that, as a result of our Constitution and the acts that have been passed by this parliament, we have a participatory democracy and that we have compulsory voting, and therefore every Australian who is eligible to be on the roll should be on the roll and every Australian who is eligible to be on the roll and is on the roll should be entitled to have a vote and cast that vote without interference, then it makes it very difficult if you're not on the roll. Whilst voting is compulsory, if you're not on the roll, through no fault of your own, then you could hardly be seen as a participator participating in the democracy which was founded within the text of our Constitution or as a result of the parliament passing legislation since Federation. Yet we live in a set of circumstances where, as a direct result of funding cuts by this government and management decisions taken by the Australian Electoral Commission, there are literally tens of thousands of Australians in remote and regional Australia who are not on the roll. I've complained about this before. It's a fundamental abrogation of the responsibilities of government not to ensure that every Australian has the opportunity to be on the electoral roll and the opportunity to vote without interference.
Sadly, this isn't the case for many in my own electorate of Lingiari, and I'll give you some of the details. I've previously expressed, in this place and elsewhere, concern that the Australian Electoral Commission's staffing of its Darwin office to administer the Northern Territory dropped from 16 to three under a restructure in 2017. That effectively means there are no teams going around the bush, visiting Aboriginal communities in my electorate, educating them about the enrolment and voting process and their obligations as citizens, and enrolling them to vote. It's as if by some magic osmosis from somewhere—I don't know what—young Aboriginal people in particular are expected to know how to be enrolled. They don't have access to a post office, even if there were one. They may or may not have access to the internet—on the proviso, of course, that they are literate. So there are many thousands who are simply not on the electoral roll. The federal government cuts to the AEC included $1.5 million in 2017-18 and $8.4 million over the forward estimates. The staff that were cut included five in the enrolment branch of the AEC in the Northern Territory and four in the Indigenous participation and voter education branch. They no longer exist. The Northern Territory Electoral Commission, because we have a dual role, effectively rents the use of the AEC voter list from the AEC, as required by the law on Northern Territory self-government. The Northern Territory doesn't have, as states do, an option of compiling its own list. So it too is victimised by the failure of the government to ensure that every person who should be on the roll and has the capacity to be on the roll is on the roll.
It's clear that, by cutting and underfunding the AEC, the government is depriving large numbers of people of the vote. As of 30 September 2018, there were 69,825 persons enrolled to vote in Lingiari and 139,000 persons in both electorates in the Northern Territory. This means that last year, as the AEC pointed out, there were over 26,377 who were not on the roll. Eighty-four per cent of Territorians are enrolled to vote and 16 per cent are not. In other parts of Australia, the average is over 96 per cent. So, because they live where they do, because of the failure of this government to ensure that the Australian Electoral Commission has had sufficient funding and because of the Australian Electoral Commission's own stupid management decisions, these people are not on the roll. I'm entitled to get pretty bloody cranky about that, and I am. Yet there is not a whimper from the CLP in the Northern Territory or Senator Scullion in the other place, a cabinet member, the Minister for Indigenous Affairs. You'd think he'd be an advocate and that this matter would have been rectified, yet it has not been. We've got an election coming within months—within weeks. It should be called today, but in any event it will be within weeks.
Within weeks. I didn't say how many weeks. It could be months. But, in any event, we know there's a challenge here. I've been calling on the government since late last year to address it. They've done absolutely nothing. I'm aware, Mr Deputy Speaker, that you want me to sit down and shut up very shortly, but I know that I'll have an opportunity to continue my remarks at some later point. Is now an appropriate time to stop?