Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

I table a supplementary explanatory memorandum relating to the government amendments to be moved to this bill. The memorandum was circulated in the chamber on 23 June 2010. I move government amendment (1) on sheet CA250:

(1)    Schedule 1, item 1, page 3 (lines 15 to 21), omit paragraphs (b) and (c) of the definition of how-to-vote card, substitute:

             (b)    that lists the names of 2 or more of the candidates or registered political parties in an election, with a number indicating the order of voting preference in conjunction with the names of 2 or more of the candidates or parties; or

             (c)    that otherwise directs or encourages the casting of votes in an election in a particular way, other than a card, handbill or pamphlet:

                   (i)    that only relates to first preference votes; or

                  (ii)    that only relates to last preference votes.

Question agreed to.

Michael Ronaldson (Victoria, Liberal Party, Shadow Special Minister of State and Scrutiny of Government Waste) Share this | Link to this | Hansard source

by leave—I move opposition amendments (1) to (4) on sheet 6140 together:

(1)    Schedule 1, item 6, page 4 (line 6), after “top”, insert “or bottom”.

(2)    Schedule 1, item 6, page 5 (line 13), omit “10 penalty units”, substitute “50 penalty units”.

(3)    Schedule 1, item 6, page 5 (line 30), omit “10 penalty units”, substitute “50 penalty units”.

(4)    Schedule 1, item 7, page 6 (line 2), after “top”, insert “, bottom”.

I will just speak very briefly in relation to these matters. Amendment (1) to schedule 1 of the bill enables the new authorisation details on how-to-vote cards, which I will not go into in great depth, to be put either at the top or the bottom of the how-vote-card. This is a minor amendment. The other part of the schedule, relating to penalty units, is far more significant and I will speak briefly to that.

I am sure honourable senators are aware of the events that surrounded the South Australian state election where members of the Australian Labor Party were effectively masquerading as Family First booth workers. The government, to its credit I suppose, though it should never have got to this position, have moved to address that with amendments to the how-to-vote card, which we obviously support. The coalition’s view from day one in relation to this was that indeed 10 penalty units did not fit the crime, and our very strong view was that a minimum of 50 penalty units, $5½ thousand, was far more fitting to redress what occurred on that day in South Australia and hopefully to deter forever people who would seek to behave in this manner. Given the significant legislative program we have, I do not seek to make any further comments.

Question agreed to.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

There has been a slight scheduling problem—it has been a pretty extraordinary day. I have amendments that I wish to move to this bill. These will be circulated in the chamber at any moment. I do not want to delay the committee stage of this bill, but I do want to put on the record my concerns and to move these amendments. I thought that this was going to be dealt with a little later on, but it has been a moveable feast this morning. To save time, I will speak to the intent of my proposed amendments.

Very shortly I will be moving amendments relating to misleading or deceptive conduct. These amendments relate to what occurred in the South Australian state election just three months ago—as Senator Ronaldson made reference to—and the abuse of how-to-vote cards. Labor Party operatives—to put it objectively—were masquerading as Family First, or handing out how-to-vote cards and wearing t-shirts and conducting themselves as though they had a link to Family First. It has been something that I think this government has disassociated itself from, and it needs to be sorted out.

My concern is that, in order to close this loophole, there needs to be an amendment relating to misleading or deceptive conduct, so that a person would commit an offence if the person engages in conduct or authorises another person to engage in conduct during an election and that conduct is likely to mislead or deceive an elector in relation to the casting of a vote. These amendments provide a defence if the person proves that he or she did not know or could not reasonably be expected to have known that the conduct was likely to mislead or deceive an elector in relation to the casting of a vote. Also under these amendments, the Australian Electoral Commissioner would have the power, if they are aware of this—and particularly on election day, when the polling is taking place—to request that the person desist from that conduct. In addition, if the court is satisfied, in proceedings for an offence under this section, that a person has engaged in conduct that is likely to mislead or deceive an elector in relation to the casting of a vote, the court may order that person to desist from that conduct.

These amendments broaden the circumstances to deal with the issues that arose out of the South Australian election. I know Senator Fielding and others have been very concerned about this. This is a situation where conduct is caught within these proposed amendments. The current laws do not address this sort of conduct, and my concern is that, even as amended, the current laws do not address the issue of conduct. The issue of printed material is dealt with but, for instance, the issue of t-shirts, which are not incorporated as printed material for the definitional purposes of our electoral laws, and the baseball caps and other material not covered under the requirement for a how-to-vote card authorisation are not covered.

So, with respect to the government, I think that the government’s amendment is a half-hearted amendment. It is of course welcomed but it does not deal with the mischief that took place on election day in South Australia just three months ago. My concern is that, unless and until we deal with the issues of conduct, there will not be a remedy to this sort of behaviour and this behaviour can continue unabated. That is my concern.

I would be grateful if the various parties could indicate their position in relation to my proposed amendments. I will not seek to divide with respect to the amendments, pursuant to a previous agreement, but I would like to know what the position is of the parties in relation to these amendments. I seek leave to move amendments (1) and (2) together.

Leave granted.

by leave—I move amendments (1) and (2) on sheet 6152:

(1)    Page 9 (after line 5), at the end of the bill, add:

Commonwealth Electoral Act 1918

1  After section 329

Insert:

        (1)    A person commits an offence if:

             (a)    the person either:

                   (i)    engages in conduct; or

                  (ii)    authorises another person to engage in conduct; and

             (b)    that conduct occurs during the relevant period in relation to an election under this Act; and

             (c)    that conduct is likely to mislead or deceive an elector in relation to the casting of a vote.

Penalty: 

             (a)    if the offender is a natural person—$1,000 or 6 months’ imprisonment; or

             (b)    if the offender is a body corporate—$5,000.

        (2)    In a prosecution of a person under subsection (1), it is a defence if the person proves that he or she did not know, and could not reasonably be expected to have known, that the conduct was likely to mislead or deceive an elector in relation to the casting of a vote.

Note:   A defendant bears a legal burden in relation to the defence in subsection (2) (see section 13.4 of the Criminal Code).

        (3)    If the Electoral Commissioner is satisfied that, during the relevant period in relation to an election under this Act, a person is engaging in, or has engaged in, conduct that is likely to mislead or deceive an elector in relation to the casting of a vote, the Electoral Commissioner may request the person to desist from that conduct.

        (4)    In proceedings for an offence under this section, the court may take into account a person’s response to a request under subsection (3) in assessing any penalty to which the person may be liable.

        (5)    If the court is satisfied, in proceedings for an offence under this section, that a person has engaged in conduct that is likely to mislead or deceive an elector in relation to the casting of a vote, the court may order the person to desist from that conduct.

2  Application of amendment

        The amendment made by this Schedule applies in relation to elections the writs for which are issued on or after the commencement of the amendment.

(2)    Clause 2, page 2 (before line 1), at the end of the table, add:

Mark Arbib (NSW, Australian Labor Party, Minister Assisting the Prime Minister for Government Service Delivery) Share this | Link to this | Hansard source

I have only just entered the chamber, but my advice from the Australian Electoral Commission is that such amendments would be too difficult to implement and administer.

Michael Ronaldson (Victoria, Liberal Party, Shadow Special Minister of State and Scrutiny of Government Waste) Share this | Link to this | Hansard source

Having been advised of that by the government, I do not think in all conscience that the opposition can support these amendments if the Australian Electoral Commission has expressed concerns about the matter. I acknowledge Senator Xenophon’s active involvement in events that occurred post the South Australian state election, but if that indeed is the advice of the Australian Electoral Commission, I am not entirely sure how these amendments can be supported, I have to say, and we will not be doing so.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I indicate that, for the reasons Senator Xenophon has expressed and reasons that Senator Bob Brown has put on the record on numerous occasions, the Australian Greens will be supporting these amendments.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

We have got to remember where the bill got some of its genesis—that is, some outrageous behaviour by the Labor Party in South Australia. It seems odd that the Labor Party would allow—I would even suggest endorse—Labor Party workers to dress up and deceive people and make themselves look like Family First workers, handing out material, clearly being misleading, clearly being deceptive, and to get away with it. But not only that: quite clearly, from the media reports, there were people who knew about this. But at least some candidates had the decency to say, ‘No; I won’t go to such dirty politics. I won’t stoop that low and try to deceive electors.’

It is very important that in Australia we have trust in our electoral system. When you think about it, to make someone look like someone else and deceive them, and hand out material making it look like it was from some other party, is just totally wrong. It could have happened to any of us. It happened to Family First. The Labor Party was dressing up as Family First workers and handing out material making it look like it was Family First material.

I understand that this bill does make some attempt to address the issue but it does not stop the issue. In the commercial world if you were someone from Pepsi and you dressed up as someone from Coke and tried to deceive people, you would be sued. It is outrageous to think that this could happen. What is even more outrageous is that Kevin Rudd would not come out publicly and rule it out at this election. I am wondering whether the new Prime Minister will come out today and rule out not using such dirty tactics at the next federal election. This is very important.

What is being put forward by Senator Xenophon does attempt to address that issue in his home state. We are worried that, in desperation, this will occur again. I think the new Prime Minister should come out and say that she will ensure her party will not stoop so low as to use these dirty tricks during an election campaign. I will be supporting these amendments.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I thank the Australian Greens and Family First for their support in relation to these amendments. I note the minister indicates that the Australian Electoral Commission says that these are not practical reforms. I indicate to the minister that I will seek a further briefing and an explanation from the commission in relation to this. Clearly, something more has to be done than has been done with this piece of legislation and I hope we will have an opportunity to deal with this before the next election, assuming we have got more sitting weeks before the next election—whenever that will be. It is also disappointing that the coalition, who expressed their genuine concerns about what occurred, have not seen fit to support reforms that would have gone some considerable way to deal with the sort of the behaviour that occurred—

Michael Ronaldson (Victoria, Liberal Party, Shadow Special Minister of State and Scrutiny of Government Waste) Share this | Link to this | Hansard source

The AEC said they could not do it.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I take Senator Ronaldson’s interjection that the AEC said they could not do it. The question is though: what amendment does the AEC say would work to deal with the issue of behaviour and to deal with the issue of people masquerading as another political party in the context of how-to-vote cards. It is not a criticism of Senator Ronaldson; I want to make that clear. It is a concern that we may not be able to fix this problem before the next election given where we are in the electoral cycle.

Question negatived.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.

Question agreed to.

Bill read a second time.