Mitch Fifield (Victoria, Liberal Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

I rise to speak on the Electoral and Referendum Amendment (Enrolment and Prisoner Voting) Bill 2010. This bill seeks to make two changes to electoral law that the coalition finds objectionable. The bill also makes two uncontroversial amendments to which the coalition is not opposed. The opposition sees no problem with allowing prisoners to remain enrolled on the electoral roll even if they are not permitted to vote—which is the substance of the first non-controversial amendment. The coalition also has no objections to the second non-controversial amendment, which fixes an anomaly in the Electoral Act to ensure that all provisions of the act apply in the event of a half-Senate election. These two amend­ments are common-sense changes and the coalition does not seek to oppose them. However, the other two changes proposed in this bill are neither sensible nor common sense and the opposition cannot support their passage through this chamber.

The first undesirable change proposed in this bill relates to enrolment and the date of the closure of the electoral rolls before an election. The government alleges that this change is designed to make sure that people are not excluded from voting. The government claims that previous amend­ments to the Electoral Act made in 2006—which changed the time of the closure of the electoral law from seven days after the issue of the writs to 8 pm on the day the writs are issued—prevented many people from voting. This claim is pretty simplistic, to say the least. Certainly, the number of new enrolment or changes of address that the AEC dealt with dropped from 520,000 in 2004 to 263,000 in 2007 after the amendments to the Electoral Act were made in 2006.

However, the amendments were accom­panied by a strong advertising campaign funded by the then government to encourage people to enrol earlier. This is reflected in the fact that fewer people missed the enrolment deadline in 2007 than in 2004. In 2004 168,394 people missed the deadline of seven days after the writs were issued. Yet in 2007, when the deadline fell at 8 pm on the day the writs were issued, only 100,370 people missed the deadline. So we actually saw a drop in the number of people who were unsuccessful in their enrolment because of the deadline when it was moved forward under the 2006 laws.

Let us not forget, that it is indeed a criminal offence in this country to not be enrolled to vote once you are over the age of 18 years. What other laws are there that, when we break them, lobby groups like GetUp claim we are victims of some right-wing conspiracy of the Howard government? If we do not pay our taxes, no-one goes out on a limb to defend our rights to belatedly get the money to the tax office. If we forget to put on a seatbelt, no-one argues that they were not given enough time to do it up before driving off. In this country we are all bound by legal imperatives. Yet the legal imperative to be enrolled to vote and to have your enrolment record up to date is not sufficient for groups like GetUp. They feel that they need to sort of ride in on a white horse in case anyone has forgotten—

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | Link to this | Hansard source

They did win the case.

Mitch Fifield (Victoria, Liberal Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

As I was saying, GetUp have this irresistible urge to ride in like a knight on a white horse ready to right a great wrong. In this case, GetUp sought to do that just in case anyone had forgotten not to break the electoral laws of the land.

Moreover, part of the reason the previous government felt the 2006 amendments to the Electoral Act were necessary was the legitimate concern about the possibility for electoral fraud from high levels of new enrolments after an election has been called. The integrity of the roll can be easily compromised when you have large numbers of people enrolling themselves at the very last minute, after an election has been called, particularly in a marginal seat. That does open the prospect of a compromise of our electoral system.

The decision of the High Court in the case of Rowe v The Electoral Commissioner, which relates to the time of the closure of the electoral rolls, was interesting because the dissenting judges were very strident in their opposition to the decision which declared the 2006 amendments unconstitutional. In particular, Justice Heydon was strongly opposed to the decision. He said of GetUp's actions, in which they deliberately confected late enrolments in order to appeal to the High Court when their enrolments were rejected, and I quote:

The plaintiffs were prevented from exercising their entitlement because they failed to comply with simple obligations and procedures.

He also said:

All other voters outside the three exceptional classes who fail to enrol or transfer enrolment are the authors of their own misfortune.

Let me repeat that. Justice Heydon said that they are 'the authors of their own misfortune'. He continued:

They have not taken the steps to enable them to vote which were not only available to them, but required of them by s.101. They are simple steps. It would have been very easy to take them. There was ample time to take them... It is they who disqualify, disenfranchise, exclude or disentitle themselves, not the legislature.

I want to reemphasise what Justice Heydon said there. He said:

It is they who disqualify, disenfranchise, exclude or disentitle themselves, not the legislature.

Spot on! They are very strong words and, in my view, they are entirely accurate. It is not the Electoral Act that disenfranchises a person, but rather a person's unwillingness to take the simple steps required of them by law to maintain an accurate enrolment. It is not the job of the state to be lenient on people who fail to do what is required of them by law and who lose out as a result of their own actions.

The second objectionable change proposed in this bill relates to the eligibility of some prisoners to vote. Prior to 2006, any prisoner serving a custodial sentence of three years or more was prohibited from voting in federal elections. In 2006, the Electoral Act was amended so as to prevent any prisoner serving a custodial sentence of any length of time from voting. he bill before us today reverts the law on prisoner voting back to the legislation that existed prior to the 2006 amendment, in line with the High Court decision in Roach v the Electoral Commission. The coalition introduced that amendment in 2006 because we believe that people who commit crimes sufficient enough to warrant a prison term should not, while serving that prison term, be entitled to vote and thereby exercise influence on the society whose laws and rules they have disregarded. We believed that in 2006 and we believe that now. People serving prison sentences have committed significant crimes and have proved themselves unwilling to accept the laws that govern this country. As a result, they have forfeited their right to have a say on the governing of this country for the period of their prison sentence.

I trust that I do not need to go through an extensive list of the crimes committed by people currently incarcerated in prisons across the nation. These people have broken laws and many have committed truly heinous crimes. Why on earth should our worst criminals be afforded the same voting rights as Australians who live their lives within the bounds of the law?

This bill is contrary to the principles that form one of the foundation stones of the justice system in Australia. We believe that if you refuse to live by the laws of our community, then you lose your right to participate in our community. That is after all why we send criminals to prison. But a prisoner voting in an election necessarily constitutes participation in the community in which they have forfeited their right to participate by committing a crime. The Labor Party is therefore undermining on a fundamental level one of the principles from which we derive our sense of justice in this country.

There is no compelling reason why this bill should go back to the three-year custodial sentence period as the cut-off point for prisoner voting. It would make much more sense for the cut-off point to be at the one-year mark. Section 44 (ii) of the Constitution states that any person who:

… has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer …

… shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

So you cannot run for office if you are serving or are going to serve a prison sentence of one year or more. Should this rule not apply to voting eligibility as well? We think it should. The coalition believes there is a compelling case to connect this legislation with this section of the Constitution, and I will be moving amend­ments—which have already been circulated in the chamber—to this bill to that effect.

These amendments have two key justifications. Firstly, the amendments lower the maximum sentence served for which prisoners may still vote from three years to one year. This would bring the electoral law in to line with Section 44 (ii) of the Constitution, as I outlined before.

The coalition believes that connecting this section of the Constitution with the Electoral Act is common sense, as the right to vote is very much linked with the right to run for office and serve as a member of parliament. Indeed, the High Court of Australia, in its majority judgment on the case Roach v Electoral Commissioner, rejected the idea that the right to vote and the right to be elected and serve in parliament are not connected. Secondly, these amendments recognise that many prisoners serving sentences of two or three years have committed significant, often abhorrent crimes.

Certainly, removing someone's ability to vote is significant and should not be done lightly. But some of the crimes committed by people who will serve prison sentences of between one and three years are particularly offensive. Some child sex offenders are sentenced to less than three years in prison. Some perpetrators of extreme physical abuse involving the use of weapons are sentenced to less than three years in prison. Some people who perpetrate horrific violence on other members of our community are sentenced to less than three years in prison. Some people who are convicted of owning and disseminating child pornography are sentenced to less than three years in prison. If this bill goes unamended by the coalition, many of these criminals will be granted the right to vote. I think this is a serious affront to the community's sense of justice.

People serving prison sentences are doing so because they were unwilling to accept the laws that govern this country. The coalition believes that, as a result of their unwilling­ness, they forfeit their right to have a say on the governing of this country for the period of their prison sentence.

I asked this question previously and I will ask it again: why should some of the worst criminals be afforded the same voting rights as Australians who live their lives within the bounds of the law? This bill is an insult to some of the principles of justice in our community. The reason we build prisons and lock people up in them is because we believe that if you refuse to live by the laws of our community then you lose your right to participate in our community, and voting for your choice of government is certainly part of participating in your community.

The amendments that the opposition will propose will bring the electoral laws into line with the Constitution in a sensible way. I am sure that most Australians would agree that there are criminals out there whose crimes are so serious that they do not deserve to vote. They do not deserve access to the rights and privileges of Australians who choose to live their lives within the bounds of the laws that govern our society.

I will move these amendments in the committee stage. I put these amendments to the Senate and strongly recommend that they be passed.

The Labor Party has an appalling track record when it comes to trying to tweak electoral laws in their favour. That is why we must always be wary of the motives in legislation. It was not that long ago that there was still a state Labor government in New South Wales where we saw the efforts of the Labor Party there, with the support of the Greens, change the electoral laws in that state to the benefit of those two parties. Indeed, the Labor Party has twice now attempted to change the federal electoral laws in their favour. I refer, of course, to the Commonwealth Electoral Amendment (Political Donations and Other Measures) Bill 2010. Despite those opposite constantly complaining about the undue influence of big donations, that bill makes no attempt to regulate the biggest donors in Australian politics—the trade union movement. Why? Because we know where they get their money from.

But back to this bill, the bill in question: this bill makes two entirely unacceptable changes to the electoral laws of this country, and the coalition cannot and will not support either of them. We reject measures that will compromise the integrity of the electoral roll and we reject measures that give criminals the same voting rights as law-abiding Australians. owever, I do encourage senators to consider the amendments that the coalition will put forward in the committee stage as a commonsense way to bring electoral laws into line with the Constitution without rubbishing the principles of justice that we hold dear.

Carol Brown (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

I rise today to also make a contribution to the Electoral and Referendum Amendment (Enrolment and Prisoner Voting) Bill 2010. The bill we are debating today makes amendments to the Commonwealth Electoral Act 1918 and the Referendum (Machinery Provisions) Act 1984 to give effect to two decisions of the High Court of Australia.

The first decision by the High Court, as part of the Rowe v Electoral Commissioner case, relates to the close of rolls period decided on 6 August 2010. The second decision by the High Court was from the Roach v Electoral Commissioner case and relates to prisoner voting, which was decided on 30 August 2007. The High Court determined in both the Rowe and Roach cases that certain amendments made to the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 were invalid.

The decision made by the High Court on the Rowe case relates to a purported attempt to decrease the close of rolls period; that is, the cut-off deadline for enrolment after the issue of a writ for an election. The Roach decision by the High Court concerned a purported disqualification of all persons serving a sentence of imprisonment from voting.

The bill we are debating today will help restore integrity to the roll by updating the Commonwealth Electoral Act 1918 to reflect the current constitutional position declared by the High Court. The High Court decision means that the Electoral Act 1918 will be amended to restore the close of rolls period to seven days after the date of the writ for a federal election. It will also reinstate the previous disqualification for prisoners serving a sentence of imprisonment of three years or longer from voting at a federal election.

The bill will also address two matters which were raised as part of an inquiry by the Joint Standing Committee on Electoral Matters into the 2007 federal election and matters related thereto. As a member of JSCEM, I am pleased to see that through this piece of legislation and others the govern­ment is implementing a number of the recommendations identified as part of our inquiry into the 2007 federal election.

As part of the legislation we are debating today, we find that recommendation 47 of the JSCEM report is being implemented. Amendments ensure that while prisoners serving a sentence of imprisonment of three years or longer will be disqualified from voting they may remain on or be added to the electoral roll, which I believe Senator Fifield has indicated the opposition will be supporting.

The amendments relating to the close of rolls give effect to recommendation 1 of the JSCEM report, which led to the seven-day rule. The JSCEM report said in recom­mendation 1:

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. Those opposite will cry foul over the possibility of potential fraud in the electoral system as part of this change to the Electoral Act, but the JSCEM report rebuffs this suggestion.

The Special Minister for State, the Hon. Gary Gray MP, highlights that a significant number of people were added to the roll before the last election, after the decision by the High Court. He states:

The provision seeks to give effect to the second High Court decision, that of Rowe v Electoral Commissioner, a decision which resulted in 57,732 additional Australians being added to the electoral roll. The bill would update the Electoral Act to reflect the current constitutional position as declared by the High Court in the Rowe decision to restore the close of rolls period to seven days after the date of the writ for a federal election or a referendum.

I think it is worth putting on the record in this chamber today that the joint judgment of Justice Gummow and Justice Bell, in part, said:

... A legislative purpose of preventing ... 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 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.

This means you cannot merely assert fraud but have to show that substantial fraud is occurring before you go down the path of disenfranchising large numbers of electors. The opposition, for many years, has asserted that fraud is happening and they think that somehow the electorate will believe them.

The bill also includes an interpretative provision to ensure that certain references in the Commonwealth Electoral Act 1918 to 'an election for a division' or similar expressions can operate in the event of a half-Senate election held independently from an election of the House of Representatives. This addresses an anomaly in the Commonwealth Electoral Act 1918.

This bill builds upon the Labor government's commitment to bring about electoral reform and create a more transparent and robust electoral system. We have a number of pieces of legislation currently before the parliament which those opposite continue to oppose. Those opposite are not really interested in genuine electoral reform; otherwise, they would have already offered bipartisan support for a number of crucial electoral reform bills.

The Labor government is committed to the passage of legislation which brings transparency and accountability back to the electoral system. Under the watch of those opposite, transparency was thrown out of the window and loopholes were exploited. We have moved to tidy up the funding and disclosure system through the political donations and other measures bill, which introduces six measures across three key areas and will increase the transparency of political donations and disclosure, ensure that there is more frequent and timely reporting of political donations and expen­diture and reform the public funding of elections. Overall, this will deliver a more transparent and accountable electoral system, along with the bill we are debating today, which will change the date for the close of rolls to seven days after the issue of the writ and will rectify the previous disqualification of prisoners serving a sentence of imprison­ment of three years or longer from voting at a federal election.

In conclusion, this is an important bill that is necessary to ensure that the Com­monwealth Electoral Act is reflective of the decisions made by the High Court of Australia. It is also important as it returns the seven-day period of the close of rolls after the issuing of the writs. This is funda­mentally important to the government as it is an essential amendment to ensure that the maximum number of Australians are able to have their say in the democratic process and vote in elections. This includes rectifying the previous disqualification of prisoners serving a sentence of imprisonment of three years or longer from voting at a federal election. I commend the bill to the Senate.

Scott Ryan (Victoria, Liberal Party, Shadow Parliamentary Secretary for Small Business and Fair Competition) Share this | Link to this | Hansard source

I will not recap the contribution of Senator Fifield on the Electoral and Referendum Amendment (Enrolment and Prisoner Voting) Bill 2011 other than to say I am in support of it, particularly his critique of how we got to this point through the decisions of the High Court and the history of electoral reform in this area. I will not in detail debate the contribution of my predecessor; the issue has been debated many times in this place. But as long as the government refuses to address the single biggest donors to political parties in this country—the very groups that actually control the party that makes up the government—then, quite frankly, its bleating about transparency will never be taken seriously. And it is nothing more than that—contrived bleating.

To suggest or imply that there are people on this side of the House that do not want every Australian who has the right to exercise their vote to do so is to mislead this debate. At the same time, to say that it is somehow a burden to have to fill out a simple, DL sized, envelope sized, form to enrol to vote—that it is somehow hard to expect people to comply with that law to exercise their right to vote at polling places open all around the country, through prepoll voting, which is getting more and more common, or through postal voting, which is as easy to access here as anywhere in the world—is to lower the bar for voting so much that it becomes worthless.

The opposition opposes the bill. To add to the contribution of Senator Fifield, I would like to discuss how we got here, because I think this is very important. This legislation poses a challenge for this parliament because it is partly—the government probably has a different view, but at least on our side we accept this—the result of High Court decisions in Rowe and Roach. They pose a challenge for this parliament, and I will go into that, but at the outset I will say that I am a strong supporter of judicial review; I always have been. A written constitution requires an authority to expound and enforce it and, in the words of Justice John Marshall, 'we must never forget that it is a constitution we are expounding', it is not merely a normal statute. In that great case of Marbury v Madison, which established this point, he said:

If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.

That may seem a little complex, but it is essentially the clause that established the concept of judicial review as we know it, and it is an important part of our Constitution.

But it also poses a challenge. The High Court rightly draws limits around the powers of this place. We have in our Constitution a Commonwealth of limited powers. For a decade it was debated and deliberated upon in great detail by the founding fathers and drafters, who were elected by the people after 1897. These drafters were, I should restate, elected by the people, and the Constitution was in a meaningful sense adopted by the people of Australia at the time voting in referendum—in some cases, on multiple occasions. For those who would put the view that it is merely an act of the Westminster parliament, I point them to the opening clauses of the Constitution, which qualify the position of Western Australia pending the result of a referendum being held in that state. In every meaningful sense, our Constitution was adopted by the people of Australia just over a century ago.

Despite the constant invitations by those opposite to change the original text, it has remained unchanged. I actually view the failure of referenda proposals put up by this place as a success of democracy rather that something that needs to be addressed. One of its great elements is that our Constitution was made the property of the people by section 128 and it is outside the power of this place to change that—it requires a vote of the people to do so. This legislation directly impacts on that, but it also is a result of the Constitution remaining outside the ambit of this place.

At referendum after referendum, the people of Australia have voted against constitutional change that centres more power in this place. They have also voted against change that allegedly creates or enshrines certain rights, and they have done so on multiple occasions. Yet, over decades, this parliament has attempted to circumvent those with elaborate constitutional schemes to avoid the protections granted to the people assembled in state parliaments.

It was the High Court, the so-called 'keystone of the federal arch', that was supposed to prevent this, and I do not think anyone would argue seriously that it has failed. In the particular case that I am getting to, we do have the High Court discovering certain 'implied rights', or however they may be described. It has failed to protect the constitutional structure from actions of the Commonwealth parliament and it has failed to protect it from temporary political passions, with notable exceptions—and this is the quandary we now find ourselves in. While the High Court has allowed the contrived constitutional constructs of the uniform tax cases and has seen fit to draw no boundaries around the two words 'external affairs' in section 51 of the Constitution—or, indeed, trading and financial corporations—the High Court has done so on this occasion. It has also, rightly, protected the judicial power from encroachment by the legislative powers. But it has seen fit to intervene in electoral administration. This is not a voting rights case; this is an administrative one. If I turn to the Constitution and the clauses upon which this hangs, section 7 and section 24, we find the important words 'directly chosen by the people'. These are the words that the High Court has used to infer a limit on the Commonwealth power in this place to administer the electoral processes, despite the fact that section 30 outlines that the qualifications of electors stand as they are until the parliament otherwise provides. The Constitution grants these powers to the parliament and we find ourselves in a situation now where the High Court, despite not actually finding any implicit real restrictions on Commonwealth power with respect to its legislative power vis-a-vis the states, has done so on, of all things, whether or not the electoral rolls close and when they do so. In this particular case the High Court's decision, the dissent that was outlined by Senator Fifield and the words of Justice Heydon, where he referred to people being the authors of their own misfortune, may in fact come back to haunt this place, because decisions have actually been known in this place to be changed. That is the basis of the judicial power.

I put to you, Acting Deputy President Trood, and to the parliament that the High Court has seen fit to constitutionally intervene in an electoral matter that did no more than exercise the power to administer elections that is implicit in this place and that in fact the words 'directly chosen by the people' do not necessarily constitute a reasonable interpretation of the timing of electoral rolls closure.

The founders consciously chose to avoid the inclusion of a bill of rights in our Constitution. There are various guarantees scattered that generally limit the power of the Commonwealth throughout it, but it was a conscious decision to not have a section that guaranteed due process or a section that guaranteed voting rights. In fact, one of the founding fathers, Andrew Inglis Clark, promoted this very point and a due process amendment similar to the US 14th amendment, but he did not succeed. Yet our High Court has determined that this one limitation upon Commonwealth power should be discovered; that this one implication, this one implied right, should be discovered about something about the timing of rolls closure—not to do with who is eligible to be on the roll, at least in the Rowe case, but purely about the timing of the closure of rolls.

That is fine, but we should actually look at the High Court over its century—or 90 years since the Engineers case—and whether it is actually applied the same standard of discovering limitations on Commonwealth power in fulfilling its prime constitutional role, and that is to limit the powers of this place vis-a-vis the states. In this case I will actually quote the words of then Professor Greg Craven, who outlined in his Deakin Lecture in 1997:

The positive, and fundamental role of the High Court was to protect federalism. In this connection, it goes without saying that the Constitution itself breathes federalism, not merely implicitly, but expressly in its very terms.

In reference to decisions that were discovering rights that were literally not written into the Constitution—not all of whose cases I actually oppose—he also said:

Fundamentally, there were two things that the Court was not intended to do. Generically, it was not to be the role of the Court [to] "up-date" the Constitution in light of the passage of time. Secondly, and more specifically, the Court was not intended to operate as a court of human rights, enforcing abstract constitutional guarantees of civic liberties.

Those two facts are incontrovertible when one looks at the Hansard of our convention debates. We do not rely on the notes of people that were there; we actually have a full record of the committees and of the conventions themselves. I put to you, Acting Deputy President, and to the parliament, that in considering this legislation and how we got here, while we duly respect the decision of the High Court—it has that role in our Constitution—we should also consider whether or not, while it finds implicit limits upon Commonwealth powers in words that do not exist in the Constitution, while it finds implied rights that specifically were not placed in the Constitution by the people who drafted it and then put it to the Australian people for a vote, the High Court, discov­ering these, is failing in its most important duty, the role for which it was created, which was to actually limit the activities of the Commonwealth parliament in those areas with which it was specifically prescribed.

The opposition will be moving amend­ments to this legislation to maintain some degree of integrity in our voting system and some degree of fairness in our justice system to ensure that not all those prisoners who necessarily under the Labor Party's model would get to vote will get to vote. They are fair and reasonable amendments.

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

I will just rise to add some brief remarks on behalf of the Australian Greens on this bill on a day when we have spent quite a bit of time discussing electoral reform. I indicate at the outset that the Australian Greens will be supporting the bill.

The two key issues, obviously, which have been fairly well canvassed in the debate thus far are those around the closing of the rolls. Schedule 1 to the bill addresses the Rowe decision and contains amendments relating to the close of the rolls. This is something on which we have been very strongly on the record since the decision was made by the Howard government.

The first of the High Court decisions that I will address, as other senators have, is Rowe v Electoral Commissioner as decided on 6 August 2010. That case related to the period of time before the close of rolls allowed for voters to either ensure that they were on the electoral roll or to update their details following the formal issue of a writ for an election. While the High Court has not yet handed down the reasons for its decision, there is sufficient information to amend the legislation to reflect the decision that has been made. This obviously will unto the changes that the Howard government made to the law which resulted in two important deadlines for the close of the rolls: at 8 pm on the day that the writ is issued for people enrolling for the first time or re-enrolling after having been removed from the roll, and at 8 pm on the third working day after the writ was issued for those who are (1) eligible who are currently enrolled but needing to update the details, (2) not enrolled but who will turn 18 between the issue of the writ and polling day and (3) eligible who are not enrolled who are to receive Australian citizenship between the issue of the writ and polling day. These changes were deemed necessary by completely unsubstantiated claims by the coalition government of the day of an untenable administrative burden on the AEC or electoral fraud damaging the integrity of the roll and encouraging voters to leave updating the details with the AEC until the very last minute.

I can remember the conduct of that debate quite vividly. It is worth noting that following the 2001 election the AEC conducted an audit in South Australia of address changes in the week from the issuing of the writs to the close of the rolls, and in a roll of one million people no evidence of electoral fraud was uncovered. Elections are not held on fixed dates and they can be called unexpectedly. The Australian Greens would perhaps take a different position on this if you could see a federal election coming three or four years in advance. Then I think perhaps the coalition would have a leg to stand on in this debate. But of course we have not solved that particular issue federally. My colleagues in state parliament in the upper house in WA are looking forward to debating to provide for fixed four-year terms in the Western Australian parliament. At that point you could have a sensible debate about when the rolls should close, either if you were a new voter or if any of the other conditions apply that we are seeking to amend here. ut at the moment in federal politics elections are still called by the Prime Minister of the day for essentially tactical reasons, and it is all about political advantage for the party that has the hand on that particular lever of the issuing of the writs. I think most MPs privately will admit that that is an untenable situation, and that is something I will address in later remarks.

Closing the rolls early effectively disenfranchises voters—and let us be serious, that was the intention of the amendments in the first place—about 80,000 new voters; and particularly it disenfran­chises young people. Senator Fifield's comments very early in the second reading debate—that is, that parliament did not disenfranchise people, people did because they did not respect the law and they did not bother to turn up on time—is extraordinarily disingenuous because this parliament sets the laws and the rules of conduct by which elections are conducted, and then it is up to people to keep track. We may live and breathe politics in this building and the various constituencies that we deal with, but for many other people politics is distant to the point of irrelevance. I think it is partly because of the conduct that is frequently displayed, for example, at question time, where we make a collective mockery of ourselves. The media obviously plays its part as well in the trivialising and politicising of policy debates. That aside, this is one of the reasons why people, particularly first-time voters, might not be sensitively attuned to the way that electoral law changes and the calling of the election is the wake-up call for many, many people, particularly young people—'All right, I'm interested in this debate. This is something I want to participate in. I am entitled to participate and so I'm going to get myself on the electoral roll or make sure that my details are accurate'—at which point they discover that former Prime Minister John Howard has made that impossible on their behalf. Some of the comments that we heard from coalition speakers revealed the gigantic disconnect between the theory and the practice.

The reduction in time for voters on the roll to change their address details created difficulties for about 200,000 people in the instance that I was addressing before. At the last election 62,583 people joined the electoral roll during the seven-day grace period. That was made up of about 16 per cent of the total growth of enrolments since the previous election, and that was partly at the will of the Prime Minister of the day. At the 2004 election 77,231 new electors, many of them young, first-time voters, got on the electoral roll during that seven-day window. Early closure of the rolls impacts disproportionately on younger voters in terms of adequate provision for first-time enrollers and due to the fact that the living arrangements of younger Australians are more likely to change from one election to the next; it is a more mobile population.

Young people are identified as a priority cohort for achieving the AEC target participation rate of 90 per cent of eligible electors being enrolled to vote. That is a good target, it is a healthy target, it is much higher obviously than in jurisdictions where enrolment is not compulsory and it is something that we can be justifiably proud of. It is encouraging participation in the democratic process. I do not believe—Senator Fifield can call me out on this if I am wrong—that any coalition speakers addressed the demographic imbalance of the people who were effectively disenfranchised by the changes that were made by former Prime Minister John Howard, and the fact that young people found themselves disproportionately impacted.

This bill brings Australia back into line with international standards: Australia, 8 pm on the day that the writs are issued, a minimum of 33 days before polling day; Canada, it is polling day; New Zealand, it is the day before polling day; the UK, 11 days before polling day. This bill does promote a valuable amendment to the way that elections are run and the way that people can find themselves able to participate or not when the polling day finally comes around. It was a recommendation of the Joint Standing Committee on Electoral Matters in the Report on the conduct of the 2007 federal election and matters related thereto. The Australian Greens had planned to move amendments to the Commonwealth Electoral Amendment (Political Donations and Other Measures) Bill 2009 in the Senate to repeal the 2006 amendments, and we are therefore happy to support the government in finally taking action on this issue.

On the issue of prisoner voting, which I will address briefly, schedule 2 to the bill addresses the Roach decision and contains amendments relating to prisoner voting. The second High Court decision that this bill touches on is Roach v Electoral Commissioner, as decided on 30 August 2007, with reasons published on 26 September 2007. This decision relates to the franchise for people who may be serving a sentence of imprisonment. The amendments would ensure that while prisoners who are serving a sentence of imprisonment of three years or longer will be disqualified from voting, they may during this period of disqualification remain on or be added to the electoral roll. Remaining on the roll will ensure that a prisoner who has served his or her sentence does not have to enrol for a second time and will in part assist the prisoner's transition back into Australian society. I understand there are opposition amendments foreshadowed by Senator Fifield to change the three-year term to one year, which the Australian Greens do not support.

I will turn to other reforms that are not included in this bill, which we can perhaps address during the committee stage, which the Greens also support. Again, as I did during the debate on the earlier electoral reform bill, I would like to provide some context for why the Australian Greens are voting the way that we are on this particular package of legislation and to foreshadow some of the things that we believe still need to change. For example, lowering the voting age to 16 years and making that optional for younger people to be able to vote. You will notice a certain pattern here: that all of the proposals that we put on the table, and these are things that Senator Bob Brown has been championing for many years, encourage democratic participation, encourage political debate by the widest possible diversity of views.

Restricting the use of postal voting applications for party political purposes. We have probably all seen examples of this, where the boundary is completely blurred between the kind of independent material that you expect to get from the Electoral Commission and party political material which provides you with the ballot at the same time as telling you how to vote. That would be an extremely valuable reform which is not often spoken of.

Allowing public citizens and dual citizens to stand as candidates in federal elections. Again, widen the franchise for candidates and for voters and broaden participation in our democratic process as much as possible. Adopting fixed terms for federal parliament. It is a long time since this has been seriously looked at. There are vague whiffs of this one that float in and out of the public debate, but it has never been seriously taken on. If any senator in this place would like to provide a rational justification for why the Prime Minister of the day gets to call an election I would be delighted to hear it, because I have not heard a convincing case made for that in the past. ublic funding for elections is an issue that Senator Brown has been championing for many years, as many of us have, as a way of pulling the corrosive influence of corporate funding out of our election process. Public funding for elections provides a platform for the entire diversity and the whole spectrum of political opinion in Australia to take its place at the table and potentially in these debating chambers here in Canberra.

As senators will obviously be aware, the proportion of the vote in the Australian public is not at all reflected by the proportion of representation in the House. That is one example where the Senate at least shows the way. The proportion of the vote—and I am not saying this because I am on the crossbenches; I think this is something that would be of interest to us all—should as accurately as possible reflect the balance of voting intentions and reflect the will of the popular view. Despite the malapportionment between the states and territories, the Senate still manages to reflect the popular view far more accurately than does the House of Representatives. Proportional representation in the House of Reps is, I think, a serious piece of unfinished business that needs to be addressed.

Another issue that Senator Brown has spent many years campaigning on is optional preferential above the line voting in the Senate to do away once and for all with the backroom preference negotiations and deals that are done by all parties and anybody contesting a political contest in Australia. The kinks and the quirks in the system on many occasions go some way away from reflecting the balance of popular opinion and the balance of political views in the community when preferences are channelled in various directions which people who vote '1' on the ballot paper may not necessarily be aware of unless they are paying very close attention to the Senate ticket. Optional preferential above the line voting in the Senate would go some way towards addressing some of those issues which I think are quite poorly understood in the community and tend to distort the political debate and the tone of debate during election campaigns and become the focus of excessive coverage by media organisations. I am not sure whether that is justified or not, but the fact is that we should take a serious look at anything that distorts the popular will and the will of the voter.

I will not dwell on truth in political advertising because we did canvass that in the early debate. And why not ban how-to-vote cards while we are at it? I have participated on polling day in election after election, and people are simply fatigued by the kind of behaviour that they are subjected to on polling day. Why not take a look at some examples from around the Australian states and, indeed, international experience where everybody is given access to voting material and advice on how to vote but we are not simply dumping thousands of tonnes of paper on people to be used so ephemerally and then discarded. And potentially there is the introduction of electronic voting as well. What can we do to bring our electoral system into the 21st century as a way of broadening the franchise and enabling participation as broadly as possible?

These are things which this bill does not touch, but I do not intend to detract from the fact that this is an important reform. It is a reform that is contested by the coalition, which put these distortions into the system in the first place. The government should be congratulated for bringing these measures forward.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I rise to wind up the debate on the Electoral and Referendum Amendment (Provisional Voting) Bill 2011 and I would like to thank all senators who have contri­buted to this debate. This bill does two things. First, it repeals the amendment made to the Electoral Act by the Howard gov­ernment in 2006 which stipulated that the electoral roll must close at 8 pm on the day on which the writs for a federal election are issued. That amendment abolished the traditional seven-day period of grace in which voters could enrol to vote or change their enrolment details after an election was announced. Second, it repeals the Howard government's 2006 amendment which deprived all prisoners serving sentences of full-time imprisonment of the right to vote and returns the law to where it was before 2006, restricting the deprivation of the franchise to prisoners serving a sentence of longer than three years.

As Minister Gray, the Special Minister of State, noted in his second reading speech, in both cases the provisions of this bill have been prompted by recent decisions of the High Court of Australia. In 2010 the High Court found in Rowe v Electoral Commissioner that the 2006 amendment abolishing the period of grace for enrolment was invalid. The court's reasoning was that such a restriction on the right to vote contradicted sections 7 and 24 of the Constitution, which provide that the Senate and the House of Representatives shall be directly chosen by the people. The court found that the Howard government's amendments operated as a disqualification of citizens from their constitutional entitlement to vote, without sufficient substantive reason. This decision was in part based on a 2007 case—Roach v Electoral Commissioner—in which the court made a similar finding in relation to the 2006 amendment which excluded prisoners from voting. In that case the court found that, although it was legitimate to deprive prisoners serving long sentences of the franchise, it was an unwarranted restriction of the constitutionally guaranteed right to vote to exclude all prisoners serving custodial sentences from the franchise, since this was applying an arbitrary exclusion not based on any consideration of the severity of the offence.

These two High Court judgments require the parliament to amend the Electoral Act to bring it into conformity with the Con­stitution. But I want to make it clear that the first part of the bill, the part relating to the closing of the rolls on the day the writs are issued, is being brought forward not simply because the High Court decision requires it but because it fulfils a commitment which Labor has taken to the last two federal elections to reverse the regressive changes made to the Electoral Act 2006 by the Howard government and thereby restore fairness to our electoral system. The effect of those changes in 2006 was to make it harder for Australians to vote and harder to cast their votes. The changes were based on the calculation that the majority of people who would lose their vote would come from social groups more likely to vote Labor. Professor Brian Costa, of Swinburne University in Melbourne, one of Australia's most respected political scientists, told the Joint Standing Committee on Electoral Matters:

We know that provisional voters are not a mirror image of the electorate as a whole. They tend to be more Labor and Green than they are Liberal, National or anything else.

The coalition claimed that these amendments were necessary to maintain the integrity of the electoral roll. They still maintain this claim today despite the fact that there is no evidence to support the assertion that any such threat exists. The Senate does not have to take my word for it on this point. Let me quote Emeritus Professor Colin Hughes, a former Australian Electoral Commissioner. At the time Senator Abetz introduced his amendments in 2005 Professor Hughes wrote:

The thorough review of the electoral roll conducted in 2002 by the Australian National Audit Office concluded that, overall, the Australian electoral roll is one of high integrity and can be relied upon for electoral purposes. There are adequate safeguards in the current electoral laws and procedures to deal with any future attempts at fraud without stripping the vote from hundreds of thousands of citizens.

This bill reverses the unjustified and undemocratic amendments made by the Howard government to the Electoral Act in 2006. In doing so, the bill restores fairness and equality of treatment for all voters in our federal elections and referendums. I commend the bill to the Senate.

Question agreed to.

Bill read a second time.