Andrew Giles (Scullin, Australian Labor Party, Shadow Minister for Cities and Urban Infrastructure) Share this | Link to this | Hansard source

I rise today to speak on the Electoral Legislation Amendment (Contingency Measures) Bill 2021. The bill which is now before the House is thankfully less controversial than some of the other electoral bills we have been debating this fortnight, although it is very difficult to understand why it was only listed for debate last night given its importance and the bipartisan support for the measures that it contains.

The bill has come about as a result of a recommendation by the Joint Standing Committee on Electoral Matters from its inquiry into the conduct of elections during times of emergency situations. And, as the minister did in respect of the last bill, I want to acknowledge the very important work done by all members of that critical committee, which has a unique role in safeguarding our democratic institutions. I acknowledge in particular my Labor colleagues—Senator Brown, the deputy chair; Senator Smith; and the members for Jagajaga and Oxley—for the work that they do.

The inquiry which led to this was driven in significant part by the pandemic that we are living through right now. The coronavirus pandemic was the obvious catalyst for that inquiry, but we know it isn't the only issue that we need to address in thinking about how elections can be conducted safely in all circumstances. We know that climate change means we'll be increasingly experiencing catastrophic bushfires and floods. We're thinking about that right now. The commission must be able to conduct elections safely in these times of emergency, and the purpose of this bill is to enable them to do just that. The contingency measures bill will give the Electoral Commissioner additional flexibility in the ways in which an election is conducted.

Deputy Speaker, as you would be aware, in August of this year, the parliament legislated to limit the pre-poll period to 12 days prior to polling day. An extended pre-poll period sees the AEC having to staff pre-poll booths for longer, presenting logistical challenges for the Australian Electoral Commission. It also means that people are voting without necessarily having all the information on candidates' or parties' policies. We no longer have one election day but a series of election days, and I think all of us in this place recognise that. We know too that the number of voters who vote during the pre-poll period is increasing at each election. But the figures also show that the majority of people who vote at a pre-poll booth do so in the week before the election.

At the last election, when the prepoll period ran for nearly three weeks, over 50 per cent of voters who voted during that three-week period did so in the last five days before polling day. As such, it was decided by this parliament to limit the period of prepoll to 12 days. However, Labor agreed to this limitation on the condition that these contingency measures be provided for the Electoral Commission to give it maximum flexibility to conduct an election in times of emergency. This bill will allow the commissioner to extend the prepoll period to up to five days after the declaration of nominations. This is in effect the system we've all become used to—the system that was in place prior to the recent amendment limiting prepoll to 12 days. This will, in the circumstances required to be brought into play, reduce the concentration of people voting on a particular day so that any social distancing that may be required can be managed, and more broadly facilitate access to voting where circumstances otherwise put this at issue for some electors.

The bill also allows the Electoral Commissioner to expand the reasons that a person may exercise a prepoll or postal vote. Currently these reasons include if a person is: outside the electorate where they are enrolled to vote; more than eight kilometres from a polling place; travelling; unable to leave their workplace to vote; seriously ill, infirm or due to give birth shortly, or caring for someone who is; a patient in hospital who can't vote at the hospital; a person with religious beliefs that prevent them from attending a polling place; in prison serving a sentence of less than three years; a silent elector; or someone with a reasonable fear for their safety. This bill will allow the Electoral Commissioner to expand those reasons. The commissioner could, for example, allow anyone to vote by prepoll or postal vote during a time of declared emergency—and this could be very important.

The bill also allows the Electoral Commissioner to adjust the number of scrutineers each candidate is entitled to at a Senate scrutiny to ensure that social distancing measures can be maintained there. The number of scrutineers will not, however, be able to be less than one scrutineer per group of candidates per officer engaged in the scrutiny of the count. Additionally, the Electoral Commissioner will be able to allow persons to travel or be present for activities necessary for the election, such as permitting candidates and agents for candidates to be present at the ballot draw or scrutineers to attend scrutiny. The commissioner may also allow a person to travel or to conduct certain activities within 100 metres of a polling booth or prepoll centre. These activities include canvassing for votes, handing out how-to-vote cards and putting up election posters. Providing the Electoral Commissioner with these contingency powers will ensure that, if there is an emergency situation, the core activities required for an election can still be conducted. It will also ensure the safety of voters, candidates and their volunteers, and the 100,000 AEC staff who will be required at the next election.

The commissioner will be able to make a determination only while there is a Commonwealth emergency declaration in place under one of the following acts: the Biosecurity Act 2015; the National Emergency Declaration Act 2020; the National Health Act 1953' the National Health Security Act 2007; and any other Commonwealth law specified by the minister via legislative instrument. I understand that the only current Commonwealth emergency declarations in place are made under the Biosecurity Act, the principle being the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020. This is expressed to expire on 17 December. There are no emergency declarations currently made under the three other acts named in the bill. I think it's pretty clear that events in recent days, upon which the attention of many Australians is focused, with the issue of a new variant, demonstrate the need for powers such as this. Of course, the issue of flooding in parts of Queensland in particular also points to the need for these powers. My thoughts are with those communities that are fighting those disasters right now.

But it should be noted that this bill is only partially implementing a recommendation of the Joint Standing Committee on Electoral Matters. The committee recommended that the commissioner be provided these powers while there is a Commonwealth or state or territory emergency declaration in place. The parliament may consider in the future whether the commissioner's contingency powers should be extended to where there is an emergency declaration in place under a state or a territory law. For example, it is quite possible that a state or a territory could make an emergency declaration in time of bushfire or flood and that there not be an equivalent Commonwealth emergency declaration in place. In that case, the Electoral Commissioner's powers would not be enlivened under this bill.

The commissioner's powers under this bill will be limited to the geographic area covered by the declaration. Before making a determination, the commissioner must notify both the Prime Minister and the Leader of the Opposition. The commissioner must outline the reasons for making his or her determination, and the determination must be published on the AEC's website. This will provide transparency and assurance to candidates, parties and the voting public that the measures in the determination are necessary for the proper conduct of the election.

The legislative instrument issued by the commissioner will cease to have effect when the writs return or when the Commonwealth emergency declaration is revoked.

The bill also provides that only the Electoral Commissioner will have the power to temporarily suspend or adjourn polling in times of floods, fires, storms, riots or health hazards. It's important to note that this is not a new power; the Electoral Act already allows the suspension or adjournment of polling in these circumstances. However, currently the power is conferred on the presiding officer of a particular polling place. Vesting the power solely in the Electoral Commissioner reflects the significance of the decision to suspend or adjourn polling. I should note also that this particular change is not limited to times of declared emergencies. Where polling has been temporarily suspended or adjourned, the bill provides that the scrutiny of the House of Representatives votes will be delayed and the results for the Senate election of that division will be not be able to be disclosed. This is an important safeguard. It will ensure that Australians who are yet to vote will not be influenced by the state of the count. Penalties are to apply for anyone who does divulge the results of the Senate election.

This bill in its current form also changes the cut-off date that voters have to apply for a postal vote. This change is not limited to times of emergency situations. At the moment, postal vote applications must be received by the AEC by 6 pm on the Wednesday before polling day. The bill currently changes this to 6 pm on the Tuesday before polling day. The bill's intent was to give the AEC longer to distribute a postal vote so that it is received by an elector prior to polling day. However, bringing forward the cut-off day for applications may mean that voters who have no other option than to vote by post miss out on voting altogether.

I note that the government has proposed amendments to the bill to restore the application deadline to the current Wednesday deadline. I'm very pleased to let the House know Labor will be supporting these amendments. They are important amendments because postal voting will be exceptionally important at the next poll. The number of people who voted by post at the Eden-Monaro and Groom by-elections were almost double the usual number of postal votes cast in those seats at an election. At Senate estimates the Electoral Commissioner said that up until COVID there had been a trend where in-person prepoll votes were increasing exponentially, whereas postal votes were remaining relatively static. COVID, however, has seen that trend change. The processing of postal votes creates an increased administrative burden on the Electoral Commission, as they are more time-consuming to process. We must ensure that the commission has significant funding to deal with this increase in postal votes and not take away from the resources that are directed at improving the state of the electoral roll.

Increasing enrolment and encouraging turnout are key functions of the AEC, as my friend the member for Lingiari here knows better than anyone else in this place. It is imperative that the commission has all the resources it requires to fulfil them, which we know has not always been the case. There is still much work to be done to increase participation in our democracy, particularly amongst First Nations peoples, young people and people from culturally and linguistically diverse backgrounds. The rates of enrolment of First Nations people in the Northern Territory and Western Australia do not indicate that we have equal participation in our democracy. I have touched on this in greater length in another contribution today, so I won't go on at length, but the tenets of our democracy around compulsory enrolment and compulsory voting to ensure every Australian has their say are, frankly, undermined by the disproportionate current exclusion of First Nations people from the roll.

To that end, and touching also on the other matters I raised in connection to postal votes, I move:

That all words after "That" be omitted with a view to substituting the following words:

"whilst not declining to give the bill a second reading, the House:

(1) notes:

(a) that the bill makes amendments to the Electoral Act in relation to postal votes;

(b) that Australia's electoral system would be strengthened by measures that would increase enrolment and turnout, and encouraging all eligible Australians to vote, whether that be by voting in person or by postal vote; and

(2) calls on the Government to increase funding to the Australian Electoral Commission to ensure that every eligible Australian has the opportunity to vote".

An Albanese Labor government will ensure that the independent Australian Electoral Commission has the funding and resources it needs to continue its efforts in improving the roll and ensuring all Australians, no matter their background, no matter their circumstances, no matter where they live, can fully participate and equally participate in our democracy. More broadly, this is a bill that has an important purpose. I think we all hope its provisions will not be needed, but I think that would be a dangerous assumption. So I'm very pleased to support this bill and the second reading amendment, but also the amendments which have been foreshadowed by the government.

Ross Vasta (Bonner, Liberal Party) Share this | Link to this | Hansard source

Is the amendment seconded?

Warren Snowdon (Lingiari, Australian Labor Party, Shadow Assistant Minister for External Territories) Share this | Link to this | Hansard source

I second the amendment and reserve my right to speak.

James Stevens (Sturt, Liberal Party) Share this | Link to this | Hansard source

I rise to support the second reading of the Electoral Legislation Amendment (Contingency Measures) Bill 2021. We live in very interesting times. I certainly couldn't have envisaged at the 2019 election that, at the subsequent election, clearly to be held next year in 2022, we would have the challenges—a once-in-100-years pandemic—that mean we need to pass legislation like that which is before us. We therefore need to look very clearly at the way in which our democracy operates and understand whether or not there are risks to our democratic processes based on potential health challenges that may still befall us come the next election, due by May next year.

I'm a member of the Joint Standing Committee on Electoral Matters. This legislation has come from our committee, so I am very interested in this topic and very keen to make a contribution on it today. I note and am thankful for the bipartisan support indicated by the previous speaker for this. I don't like the concept of doing anything to the way in which we conduct elections that isn't in a bipartisan way, wherever possible. We've got an excellent system as it is. It returns the correct results. The people who get elected have been validly elected and voted for, and there has never been a question of the strength and robustness of the way in which the AEC operates our elections.

However, it is very important that we provide for what may be changed circumstances that our existing Commonwealth Electoral Act isn't currently perfectly structured for. We need to give the Electoral Commissioner all the powers that he or she needs to take into account different circumstances. Perhaps this should have been considered earlier, but, to be fair, it wasn't until the coronavirus pandemic came along that some of these questions became a lot more acute rather than abstract. So we're dealing with it now, which means, if this legislation passes through this parliament, which I expect it to do, we will have it in place well and truly in time for the next election.

We're looking at a couple of issues here. We're looking at prepoll and postal votes and giving the commissioner some discretion to vary the current rules under which people can access that type of voting. I think we can all be honest in this chamber that, despite the fact that the rules are prescriptive, all of us stand on prepoll booths and all of us get contacted by people and supporters who want assistance with the postal voting process et cetera. Yes, there are rules in place and a declaration that you make.

The previous speaker outlined the circumstances in which you can access a prepoll vote. I note that, in the Parliamentary Library's work on this bill—and I'm sorry I can't quote the source in their document—they indicated there was some kind of survey conducted after the last election that indicated 22 per cent of people who voted at prepoll confessed that, whilst they might have declared they met one of the characteristics necessary, or the prescriptions necessary, to undertake the prepoll, they frankly didn't completely meet that requirement. For some there's a convenience in voting early. Even though they might be able to vote on the day, they just like the idea of just getting it out of the way. Of course, equally, there are other reasons. People might want to avoid the lines on election day or just wonder whether or not something might come up on a Saturday. For many people, Saturdays are cherished above a weekday, when they can drop into the prepoll and quickly get the vote done. So I think we probably already have a large category of people that participate by way of prepoll or apply to undertake a postal ballot and that probably don't strictly meet the requirements. Not that I would ever encourage anyone to break the law, but it is a matter that we probably just turn a blind eye to because, at the end of the day, it's still people validly, legally participating in the electoral system. If that's the way they are intent on casting their ballot then, frankly, why stand in the way of that?

I support giving the commissioner these powers to expand the criteria.

Perhaps I'm indicating from my contribution that I wonder whether at some point in the future—I accept it's not going to happen now—we will consider removing these prescriptions around prepoll and postal voting and, basically, allow anyone who wants to to do it. I don't know why we have to have that added complexity in place. We did look at this at JSCEM, but we're not recommending that through this legislation. I don't see that it necessarily benefits any particular cause in politics to put that in place. As I said, anecdotally people are already doing it if they want to anyway, even if they don't reach those requirements. There are certainly people who would not be comfortable with doing the wrong thing—good on them; I commend those people—and, through this amendment, they should be given comfort that, through the declaration of the commissioner, other criteria can be added to being able to validly cast a postal or prepoll vote if necessary. It's important that we're enabling that rather than having a system that is structured on giving people a bit of a wink and turning a blind eye.

These powers are very important because there's a much higher likelihood during the 2022 election—I hope this won't be the case, but we have to accept there is a risk—that certain restrictions around the normal course of voting could be required if there are coronavirus related restrictions in place. The previous speaker also obviously mentioned that other natural disasters beyond the health pandemic could be at play. We want to make sure that we've got robustness but also nimbleness in our Electoral Act and that the commissioner can prescribe certain changes to the existing rules around early voting to facilitate the fact that some kind of natural disaster, health challenge et cetera will mean we have to do all we can to enable broader access to voting. Clearly, we all want to make it as easy as possible for people to vote. We don't want to engage in voter suppression or make it difficult for people. That's why we have the alternatives to voting on polling day as it is. If the circumstances meet the tests that are required through this change for the commissioner to so decide that he or she wishes to give broader access to prepoll and postal voting, then I think that's an eminently sensible thing for us to support.

The other major matter addressed in this is ensuring that the proper conduct of the election cannot be interfered with by virtue of certain directives that might be in place that prevent someone from accessing their right to cast a vote on election day. It's important that we at the Commonwealth level maintain our supremacy and our rights over the conduct of our elections, and that there's no ambiguity or ability for any state authority or state legislative directive to restrict or apply itself to the way in which we elect people to this place and to the Senate. Nothing is more important than us being in control of the electoral process for this House and the Senate.

I'm not making any allegation here. I'm not suggesting in any way that we can directly foresee any undue obstruction to future Commonwealth elections. But the reality is and the lessons we've learnt in the last 20-odd months under this coronavirus pandemic are that there could be ways in which certain directives could impinge on the ability to conduct an election. Putting politics to one side—it doesn't matter whether you're the government, the opposition or the crossbench—we as a Commonwealth parliament can't allow anyone to overtly or inadvertently interfere in the way in which we conduct our elections, and potentially influence or interfere with the people who are sent to sit in this chamber and the Senate chamber and represent their electorate or state in the Commonwealth parliament.

So what these changes do is to ensure that we have Commonwealth legislation—which therefore would have constitutional supremacy over any state instruments that might be in force around restricting people's rights to move around the community, congregate together physically et cetera—and that the Electoral Commissioner is given the powers to make sure that he or she can continue to conduct an election on election day, with whatever mechanisms and restrictions the commissioner may feel are important to put in place. So we're not suggesting that, if there is a risk situation, we would go ahead and encourage putting people at risk and demand that the commissioner undertake an election as if nothing were happening. That's not what would happen here at all. What we would be doing is ensuring that the commissioner has the powers that he or she needs to decide how to continue to conduct a Commonwealth election in the safest way possible but not in a way that would disenfranchise people or reduce their ability to participate.

Hence there are the polling day measures, ensuring that people can't obstruct our ability to campaign and to hand out our how-to-vote cards and put up our posters and our messages talking about how great we are. None of us in this chamber want to miss out on that opportunity, and, of course, it's vitally important for the robustness of our democracy that we have the right to do that—to communicate and campaign to our voters. On election day, that is a very important part of that process. We all know that. No-one would sit in this chamber if they didn't have exceptional experience of the way in which we conduct elections and what happens on polling day. It's up to us, as a Commonwealth parliament, to make our decisions about how we conduct those elections and not have them potentially restricted by decisions of another government.

This creates a new principle, the 100-metre rule. At the moment, to my understanding and from my reflection on the Electoral Act, the only rule we have for polling day at the moment is the six-metre rule, which effectively says nothing can happen within six metres. I think this is an excellent outcome for ensuring that we manage the next Commonwealth election in a safe way but also maintain our sovereignty over the way in which we elect people to this House. I commend the bill to the House.

Llew O'Brien (Wide Bay, National Party) Share this | Link to this | Hansard source

It being 1.30, the debate is interrupted in accordance with standing order 43. The debate may be resumed at a later hour, and the member will have leave to continue speaking when the debate resumes.