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

The Electoral and Referendum Amendment (Improving Electoral Procedure) Bill was introduced to the House on 27 June and was referred to the Joint Standing Committee on Electoral Matters. I tabled an advisory report in the House on 16 August 2012. That was a unanimous report and basically recommended the passing of this legislation after deleting the changes proposed in schedule 3 in relation to the unsound mind provisions and consequential amendments. The term 'unsound mind' and the current requirement for a certificate from a medical practitioner should be retained.

The bill resulted from a government response to the joint standing committee's report into the 2010 federal election, specifically recommendations 12, 31 and 32. I want to have it noted that the committee at no stage recommended the removal of the unsound mind provisions which were first presented in the bill.

They were regarded as minor technical amendments and were included in this bill. Subsection 93(8) of the Electoral Act provides:

… A person who:

(a) by reason of being of unsound mind, is incapable of understanding the nature and significance of enrolment and voting; or

(b) has been convicted of treason or treachery and has not been pardoned;

is not entitled to have his or her name placed or retained on any Roll or to vote at any Senate election or House of Representatives election.

That provision has been in the Electoral Act since, I think, 1902. Under this provision, in 2008-09, 5,735 electors were removed; in 2009-10 4,341 electors were removed; in 2010-11, 13,082 electors were removed; and in 2011-12, 5,445 electors were removed. So the provision is being used. The proposed amendments to the Electoral Act recommend omitting 'by reason of being of unsound mind' and substituting 'in the opinion of a qualified person'. Also, in the proposed amendments, the definition of 'qualified person' is expanded to include not just medical practitioners but also psychiatrists, psychologists and social workers.

When the committee examined the existing definitions and asked the Electoral Commission to come back with how many concerns there were with them, no statistics of substance were provided. However, the supplementary submission of the AEC, submission 2.1, said:

The AEC is aware of at least two recent complaints where family members have experienced difficulties in obtaining a medical certificate completed by a Medical Practitioner. One of the complainants also objected to the use of the phrase "unsound mind" in describing their loved-one.

The committee was unanimous in the view that these objections were not sufficient as a basis for changing the existing provision in the Electoral Act and that the provision has been referred to in legislation and is well known.

The other matter that concerned the committee was the expansion of the definition of 'qualified person' from medical practitioners to psychiatrists, psychologists and social workers. We felt that there was an acceptance and respect for certificates issued by medical practitioners. The other thing that concerned me and the committee was that if the new definition were to be adopted, because the definition would be broader it would lead to a greater number of exclusions from the electoral roll. The committee was of the view that the franchise is too important to allow this extension of definition. There has not been a flood of complaints about the existing definition, the provision is being used and the odd inability of a person to get a medical practitioner to conveniently provide a certificate is not, we believe, a sufficient basis for changing the definition.

It is rare, as the member for Mackellar has said, that the committee is unanimous. I believe that the groups which made submissions—the Electoral Commission and so on—were genuine in doing so. I also believe that in this instance we should be more conservative. I do not believe that the case has been made for a change in the provision, and I commend the government on accepting the joint standing committee's advisory report and believe that an appropriate amendment will come forward. So the redefinitions will be removed from the bill, and there will be a provision inserted on postal votes, on deposits, on the number of people nominating and on other matters. Hopefully, these will be passed unanimously.

I am not being critical of the Electoral Commission or anyone else; it is just that occasionally it is important to take a conservative approach. I understand that the evidence that came before the committee was submitted in good faith; indeed, the disability groups made submissions and supplementary submissions maintaining their objection to the use of the phrase 'of unsound mind'. But the committee has unanimously taken the view that the redefinitions should be removed from the amendments proposed in the new bill.

The member for Mackellar wants to talk about differences on the committee and so on, but I have been on the committee on and off for 22 years, and, whilst we have a bit of a crack at one another within acceptable bounds, I think that the committee is working quite well in shining a spotlight on the Electoral Act and on the Electoral Commission. That is our role. Quite frankly, I think that a lot of what the member for Mackellar says is without substance, and I am sure that she thinks the same about what I say; but we are both members of a transparent committee which works well. There was no caucusing on the question of the redefinitions; as the evidence flowed in front of the committee during the hearings, we all came to the same conclusion pretty quickly. That is evidence of good faith. I as both a member of the government and the chair of a committee never believed that I needed to defend the government at all costs; I thought that there was merit in sticking with the existing provision.

It is unusual for this committee to produce unanimous reports—and so be it. The merits of the competing cases are out there for people to see, and people can take whatever side they want to take. I happen to think that we have one of the best electoral commissions in the world. It contributes to assisting democracy around the world. The officers of the electoral commission, particularly the divisional returning officers, are second to none. They are committed to the electoral system. If there is a problem, it arises as a result of politicians being a bit intransigent and not facilitating recommended changes in legislation. At the end of the day, the commission can only operate off the back of the legislation which passes through this House.

On the provisions in subsection 93(8) of the Electoral Act, the committee has taken a cautious approach and said, 'Let's stick with the existing terminology even though some people might not like it, because fewer people will be disenfranchised and doing so will mean a retention of certainty in the interpretation of the provision.' I am really pleased to see that our unanimous report has been picked up by the government. This fact will, hopefully, mean that the legislation goes through both houses in an amended form and with the full support of both houses instead of the paranoia which sometimes accompanies the bringing forward of legislation.

Debate interrupted.

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