Senate Elections Bill withdrawal risks disputed elections

Hansard: 12 March 2008 ASSEMBLY

Mr CLARK (Box Hill) — The motion before the house raises three issues — first of all, the merits of the commonwealth legislation which the bill being withdrawn was intended to assist in giving effect to; secondly, why the Labor government in Victoria failed to pass prior to the last election legislation which the government itself introduced into this house; and thirdly, what the appropriate course of action should be in relation to this bill.

In relation to the first of these matters, the Attorney-General is following the old Leninist principle that if you assert a proposition loud enough and long enough people can be browbeaten into believing it. We have had the Attorney-General banging on and on and on with this claim, which he put in a dozen different ways, alleging disenfranchisement of young people by the Howard government. The fact is that that is a complete nonsense. The reason for the legislation that was passed under the previous federal government in this aspect was to help overcome a chronic problem being faced by the Australian Electoral Commission — namely, being swamped with large numbers of last-minute enrolments which cause it considerable difficulties in processing. If you read the reports of the various commonwealth parliamentary committees it becomes pretty clear that the Australian Electoral Commission was looking for ways to help overcome this difficulty.

One of the adverse consequences of the Australian Electoral Commission being swamped by last-minute lodgements of paperwork is the potential for electoral fraud. Those opposite have great experience with that. It is a disgrace that both federally and at a state level the Labor side of politics has been resisting measures to ensure greater integrity of our electoral process.

What needs to be made absolutely clear is that the measures that were being undertaken by the commonwealth government were accompanied by a vigorous and extensive advertising program by the Australian Electoral Commission designed to achieve exactly the objective that I have referred to — namely, to encourage people to lodge their initial enrolments or change of enrolment details in a timely manner. The point needs to be made clear that the matters concerned relate to people enrolling to vote for the first time, and you are entitled and expected to enrol to vote for the first time when you first become qualified to enrol to vote — for example, when you turn 18 years of age or when you take on Australian citizenship.
Mr Stensholt — No, 17.

Mr CLARK — I thank the member for Burwood, who makes the further point that you can provisionally enrol when you turn 17.

Honourable members interjecting.

Mr CLARK — The Australian Electoral Commission has again put considerable effort into drawing that to the attention of young people. The member for Burwood indicates that his daughter did so; my own daughter did so. It can and should be a matter of course that young people provisionally enrol upon turning 17 years of age.

If you believe the fanciful notions of the Attorney-General and others on that side of the house, then the wicked Howard government would have been repealing rather than supporting provisional enrolments and working with the Australian Electoral Commission to encourage people to go out and provisionally enrol when they turned 17. Similarly the Howard government was in fact facilitating people being able to vote in circumstances where they became Australian citizens between the day after the issue of the writs and the election day.

Sitting suspended 1.00 p.m. until 2.03 p.m.

Debate interrupted pursuant to standing orders.

Mr CLARK (Box Hill) — As I was saying before the suspension of the sitting, changes to the commonwealth electoral law made under the Howard government included provisions so that persons who became Australian citizens between the day after the issue of the writs and election day were able to enrol and therefore able to exercise their democratic right to vote in the forthcoming election.

The overall election scheme that was put in place by the amendments also meant that those persons and persons who were 17 years of age but who would turn 18 between the day after the issuing of the writs and election day could enrol; and they, together with impending citizens, could enrol for up to three working days after the writs were issued, as could people who were already on the rolls but who had outdated addresses or name details. Other persons enrolling for the first time or those persons who were off the rolls and are re-enrolling are required to enrol by 8.00 p.m. on the day the writs for the election are issued, which of course in common parlance is the day on which the election is called.
As I alluded to before the suspension of the sitting, one of the key reasons giving rise to these amendments was concern on the part of the electoral matters committee of the federal Parliament that the flood of last-minute enrolments that took place under the previous measures would present an opportunity for those who were seeking to manipulate the rolls to do so at a time when little opportunity existed for the Australian Electoral Commission to undertake the thorough checking required to ensure roll integrity.

The committee also expressed the view that in the case of those turning 18 years the act of enrolling should be considered as much a symbol of transition to adulthood as applying for a proof-of-age card for entry to licensed premises or a drivers licence. In other words, people should be encouraged to update or maintain their enrolments or to undertake their initial enrolments in a timely manner in accordance with their responsibilities as citizens rather than leaving them to the last minute. The various arguments are set out at pages 34 to 36 of the report of the electoral matters committee following the 2004 federal election.

That of course was a contested issue as to the merits of that matter, but the point that needs to be made absolutely clearly is that there is no foundation whatsoever in the argument the Attorney-General was presenting prior to the suspension of the sitting about the disenfranchisement of young voters or of other voters.

I went through the fact earlier that the Australian Electoral Commission was undertaking an extensive advertising campaign to promote early enrolments, and that there are provisions for provisional enrolments. As well as that, one can cite the evidence given by the commonwealth electoral commissioner, Mr Ian Campbell, to the federal electoral matters committee, which is at 2.111 of the report. He said:

Even with the 7-day close of rolls, I have no doubt that we now have people who try to enrol on days 8, 9 and 10. In that sense, wherever you draw a cut-off point, you will have people who, for whatever reason, did not get to enrol before the rolls closed — there is under current arrangements and there would be in any changed arrangements …

My point is that I could not draw any conclusion that a change in the closure date of the rolls would automatically lead to a particular number of electors who want to vote not being able to vote.
That was the evidence coming from the electoral commissioner himself. The arguments being put by the Attorney-General are completely fanciful. It is not ultimately a matter for the house to judge the merits of any particular electoral reforms being undertaken by the commonwealth. Our primary duty is to ensure that the electoral system that is implemented in Victoria for federal elections is sound, is clear of ambiguity and doubt, and will operate without potential for disruption.

That brings me to the second aspect that I raise on this motion now before the house: why it is that the state government, having introduced the legislation, then failed to proceed with it?

I cite no lesser authority than the Attorney-General himself as to the reasons why it was important that this legislation should have been passed prior to the last federal election. He said in his second-reading speech way back in 2006:

Failure to amend section 4 of the Senate Elections Act 1958 will mean that the section is invalid. Even if the federal government did not challenge section 4 uncertainty and inconsistency would prevail with the possibility that some electors would be ineligible to vote for the Senate but not for the House of Representatives.
The minister’s own words were that this legislation was necessary so that uncertainty and inconsistency did not prevail. Yet in the end the government failed to bring this legislation on for debate in the Parliament prior to the federal election despite repeated urgings from this side of the house.

The only explanation we got from the government prior to the election was the following weasel words, which the Attorney-General delivered to the house on 9 October 2007 in the debate on the business of the house. He said:

The Premier will be advising the Governor, when the writs are issued, in relation to the federal government’s laws, and they will be adhered to. But we do not believe it is appropriate, particularly in light of the comments made by the federal opposition that it will repeal such legislation, that we should be acquiescing in the disenfranchisement of 80 000 voters in this state.
What he was saying was: while the government does not like the legislation it is still going to comply with it, but it is not going to pass the legislation to actually give effect to what it is going to comply with. What sort of a position is that in terms of the certainty and clarity given to the electoral rules that prevailed in Victoria during the last federal election?

I have previously referred the house to the chaos that was created in the United States of America, with the oddball series of constitutional challenges to the validity of various polling results there. The last thing we would want in Australia is to have a constitutional challenge or a Court of Disputed Returns challenge to the outcome of a Senate election in Victoria based on the fact that the Labor government said it would comply with the federal law but failed to enact state laws to ensure that was what the law of Victoria required. Indeed you have to speculate whether the government wanted to reserve to itself or to the Labor Party some sort of option so that if last year the outcome at the polls in Victoria for the Senate had gone a certain way, it would have been able to pull out an issue like this, like a rabbit out of a hat, and give itself the grounds to head off to the Court of Disputed Returns. Whatever its reason, it has certainly not given an adequate explanation to this Parliament.

The propositions I am putting to the house are strongly supported by the government’s fellow Labor government in South Australia, which in September last year moved to amend its legislation in a similar way to that contained in the bill currently before the Parliament. In his second-reading speech, after having expressed his government’s disagreement with the commonwealth, the South Australian Attorney-General, Mr Atkinson, said:

Nevertheless, the government considers itself, by dint of the commonwealth amendments, forced to amend South Australian legislation to remove the inconsistency.
Later on he said:

I have obtained advice from the Crown Solicitor on whether section 109 applies to invalidate section 2(1c) of the act.

The Crown Solicitor advises that the position is not clear. There are two lines of authority. One is that section 9 of the Constitution of the Commonwealth of Australia confers authority on the state parliaments to determine the date of polling day and the location of the polling booths only. The second is that section 9 goes further and authorises the state parliaments to legislate about the entire electoral process, including the date for the close of the roll.
Then he put it very succinctly:

As the next federal election can be called at any time, I put the bill to members. If the house is unwilling or unable to pass the bill, the matter will inevitably end up before the High Court, where it is possible that the South Australian act may prevail.

So the South Australian government had legal advice from the Crown Solicitor that failure to act would create ambiguity. Presumably if the Attorney-General were doing his job properly he would have sought similar advice about the consequences of his action here and also would have got similar advice about the potential ambiguities and uncertainties that would be created by not proceeding with the legislation. Yet because of base political motives he deliberately did not to do so, and the potential for electoral turmoil to result in Victoria arose as a consequence of his actions.

I turn to the third issue that we need to address in considering this motion — that is, the course the house should now follow. I certainly do not intend to anticipate what the commonwealth Parliament may or may not decide about its electoral laws in future. That is a matter for the commonwealth to decide. The question is what this house should do given the current state of commonwealth law.

The conclusion should be that we proceed to pass this legislation so that it is on the books and so Victorian electoral law in relation to Senate elections conforms with commonwealth law. If the commonwealth law changes in the future, then legislation can be brought to this Parliament to again reflect that new commonwealth law. And no doubt if it comes to this place, we will be able to express our own views on the merits or otherwise of what the commonwealth Parliament has enacted. However, save for absolutely extraordinary circumstances, this Parliament should bring its laws into conformity with commonwealth laws so that the electoral law governing Senate elections is clear.

Members may say that there is no prospect of a Senate election for some time and therefore it does not matter much, but we have already heard the Prime Minister talking about the potential for double dissolutions. We all know the saying that a week is a long time in politics, and who knows what may unfold over coming months.

I suggest that it would seem to be a fairly remote possibility, but we should ensure that if a Senate election were held our laws would be in the appropriate format.

The view of the opposition is that we should not remove the item from the notice paper; instead we should proceed to enact it. We should proceed to debate and then pass the relevant legislation so that Victoria’s law is clear and we lessen the legal risks which were highlighted, firstly, by the Attorney-General himself, and which were then reinforced very explicitly and forcefully by the South Australian Attorney-General and in the legal advice from the South Australian Crown Solicitor, to which the South Australian Attorney-General referred. The last thing we want in this state is a repeat of the Al Gore-style constitutional turmoil that the United States suffered some years ago.

As the South Australian Attorney-General said, and as the Victorian Attorney-General started off saying, the views of this house on the merits of the legislation are essentially irrelevant. The government has its views about it, but nonetheless the primary duty of this house is to have its legislation in conformity with commonwealth legislation, as is shown by the fact that even the Attorney-General said that in practice there was administrative advice that commonwealth legal requirements were complied with. The law should reflect that position. Accordingly this item should not be removed from the notice paper; instead it should be proceeded with and enacted.