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

I made some remarks yesterday in speaking in support of the Electoral and Referendum Amendment (Enrolment and Prisoner Voting) Bill 2010 where I quoted extensively from sections of High Court judgments delivered in this area that we rely on. They are from the Roach case and also the case of Rowe. The thrust behind the majority judgments was about enfranchising voters, not disenfranchising voters, which is what we now seek to put into place.

The interesting thing is that it was the former government that legislated to put us in the position that the High Court found was not warranted in both the Roach and Rowe cases. We would not have had to do this if it were not for the paranoia of some on the other side about supposed fraud in the electoral system, or potential fraud.

The Joint Standing Committee on Electoral Matters, which I chair, and chaired in the last parliament, made recommendations along the lines of what we propose in the legislation today. They were majority recommendations, and it is prescient to quote the summary and the preamble to recommendation 1, which led to the seven-day rule. The report said:

The committee can see no valid reason why it should be necessary to continue with close of rolls arrangements that serve to disenfranchise electors and that require unsustainable levels of funding to be expended in order to partly mitigate their effect.

There is no evidence that fraudulent activity was reduced as a result of the amendments to the close of rolls. On the contrary, there is no evidence available that indicates systemic fraudulent activity exists.

I think it is worth requoting the joint judgment that I quoted yesterday. It is a judgment relating to Justice Gummow, together with Justice Bell:

A legislative purpose of preventing such fraud before it is able to occur, where there has not been previous systemic fraud associated with the operation of the seven-day period before the changes are made by the 2006 act, does not supply a substantial reason for the practical operation of the 2006 act in disqualifying large numbers of electors.

That is in paragraphs 166 and 167 of the judgment. What the judges are saying there is that you cannot merely assert fraud; you have got to show substantial fraud is occurring before you go down this path of disenfranchising a large number of electors.

In relation to prisoners, the same proportionate approach has applied when they reinstated the eligibility to vote for those who were sentenced to a period of three years imprisonment or less. Indeed, the majority in that case of Roach contained the then Chief Justice Gleeson, someone who is fairly conservative when he comes to judgments. There is no doubt that of those of us who have followed electoral reform over the years—and I have in my 21 years of being in this place—I have to admit that I was very surprised at the pronouncements of the High Court in each of these cases. I was fairly pessimistic as to the success of those cases. I was very surprised, but elated, at the principle on which the High Court has basically enunciated in these cases; it is about enfranchisement. They are setting limits on the ability of this parliament to disenfranchise electors, and I think that is a good thing.

I have a great regard for the High Court. I think we have probably one of the better High Courts in the world in relation to their independence and the quality of their judgments. This is not a radical court; this is a conservative court, if you look at the appointments. There are a number of appointments on the bench that were by the former government. Indeed, when you actually look at the Roach case, the former Chief Justice Gleeson and Justice Crennan, who were in the majority, were appointed by the former government. And in relation to the case of Rowe, Justice Crennan was in the majority—which was a 4-3 judgment—and was appointed by the former government.

I think that is a good thing because it is also a demonstration that it is unlike other places around the world where appointments made tend to be of a more political nature and where there is demonstrated evidence that particular courts may well be following a political objective. That is why in the United States there is such a scrutiny of appointments to the Supreme Court. I think that in Australia we can be very confident of the independence and the separation of powers that exist in this country, and the quality of the people that we place on the bench.

I do not always necessarily agree with some of those judgments; I have different views. And they are not always unanimous judgments—indeed, in the case of Rowe it was a 4-3 judgment—but we accept that. The case of Wik was a 4-3 judgment in a particular way. It created a furore in the broader community, but the truth of the matter is that we do not follow the system whereby you have unanimous judgments—so you are able to test the reasoning. But the reasoning of the majority in both these cases is a reasoning that this parliament should embrace. It should be about enfranchisement and not about disenfranchisement. The tragedy is that for the 11½ years of the former government all we saw was legislative action to disenfranchise, based on paranoia, fear and, I believe in some cases, on a view that a particular group of people did not necessarily vote a particular way—or that they did vote a particular way.

We will see legislation introduced to reinstate provisional voters who, prior to amendments by the former government, were scrutinised and who had signed declaration forms on the day of voting which, when compared with the signatures that the Electoral Commission had, meant those people were reinstated to the count. Changes to the law meant that, unless they produced a proof of identity, those people did not have their vote admitted to the count and they had to come back within a certain period of time. What we now know is that 12,000 people during the 2010 election, who were given provisional votes because their names could not be found on the roll, were subsequently found to be on the roll but were still excluded because they were given provisional votes and the provisions of the act were such that if they did not bring along a proof of identity within the required time then their vote could not be reinstated. That was 12,000 people who were legitimately on the roll. In that instance, I would argue a signature is a good enough proof of identity. And as one who has scrutineered over many elections and by-elections, if there is doubt as to a signature you can compare it with the signature held by the commission. If there is doubt, it gets knocked out. That principle is consistent with these principles that are before us today in relation to prisoners—that is, imprisonment of itself should not be a disqualification from the vote. That is what former Chief Justice Gleeson says in his judgement in the majority in that case, and I commend to the House his judgement. It is worth reading; it is an excellent judgement in that regard.

In relation to the challenge by GetUp!, it was believed that there were about 100,000 people who fell into this category. We are not talking about one or two votes here. The allegation of systemic fraud has been made at every electoral committee hearing I have been involved in subsequent to every election that has been held—this is the eighth I have been involved in personally as a candidate—and I am still waiting for the evidence of systemic fraud. That is what Justices Gummow and Bell were in effect saying in their judgement in that particular case. If you want to assert these things, and the consequences are you are going to disqualify people from their right to participate in choosing a government, then you must put up, you must show the systemic fraud. Not occasional fraud. There is occasional fraud, there is the odd person who multiple-votes. What we also found in relation to that multiple voting is that 80 per cent or more of it related to elderly people who were in nursing homes where confusion reigned, dementia reigned, and people were double-voting. That was the evidence before the committee last time in relation to those particular elements of multiple voting. It was not fraud, it was confusion. I hope to have the analysis of the Electoral Commission in relation to those matters. And in relation to the seven-day rule, let us be clear: we are talking about a situation where there could be 50,000 to 100,000 extra voters on the roll.

It has been a situation where this has been progressively looked at because automatic enrolment now takes place in New South Wales and Victoria, and that is something we will look at as a Joint Standing Committee on Electoral Matters. It is not about favouring the government or the opposition; it is about recognising that as a society there are some changes in our society, but the right to vote is one of the most important rights that can be exercised. It is true equality because an 18-year-old voter is just the same as a voter who has been voting for 40 or 50 years—their vote counts. But there is a lot more movement in the electorate. We have a situation where there are provisions in the Electoral Act that if I moved next door and did not fill out the proper form, even though I am within the same electorate, my vote does not count. It is madness!

The nature of our society requires us to have safeguards, to have checks. That is what this legislation before the House is now about. The government is backed up by High Court decisions. I accept that in some instances you do not necessarily have to follow the High Court; just because the High Court says it, does not mean that you do it. But if we do nothing then the principles in the legislation are what underpin elections on election day. What we are doing is legislating what the High Court has said is the law. Because all of those people who took advantage of the High Court case in terms of Roach all got a vote. The Electoral Commission devoted extra resources to processing those applications.

If the opposition opposes this legislation and this legislation is defeated then the principles underpinning this legislation still apply. Let us have that on the record. It is not a situation where your opposition is going to achieve a close of rolls on the same day that an election is called; the High Court has declared that what the former government did was not in accordance with the Constitution. Those provisions of the act have been struck down. I commend the legislation to the House. I believe it is worthy of support. It reinstates provisions that operated for a very long time—they are not new, they were taken away. (Time expired)

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