Electoral Legislation Amendment 12/2/19

12 February 2019

DR CHALMERS (Rankin) (12:56): Thanks for the opportunity to speak on the Electoral Legislation Amendment (Modernisation and Other Measures) Bill 2018 on behalf of my colleague in the other place who's done much of the work on shepherding this legislation through in the last few months.

This legislation, which seeks to amend both the Commonwealth Electoral Act and the Referendum (Machinery Provisions) Act, does contain some primary reform. The function of the bill is contained in the first schedule. This schedule outlines a nomination checklist, similar to those used at the most recent by-elections, where a federal candidate can provide information related to their eligibility under section 44 of our Constitution. As members here would be very well aware, the issue of section 44 eligibility has plagued this parliament. In May last year, the Joint Standing Committee on Electoral Matters, JSCEM, issued its report on these eligibility issues. The committee recommended the Australian government investigate measures and strategies to mitigate the impact of section 44 on this parliament, particularly when such confusion and chaos was taking hold. Importantly, the committee noted that the power of the parliament and the High Court in these matters should be respected.

As members would recall, a checklist used to be voluntary, allowing candidates to provide information where they believed it was appropriate. Schedule 1 of this bill seeks to enforce that checklist as a compulsory requirement for every person nominating as a federal candidate. This compulsory requirement is not just important for administrative purposes but also ensures that the Australian public can have faith that, regardless of their choice of candidate, these issues have been squared away in some capacity by the time people get to the polls. Where answers are not provided to the required questions, the nomination would be invalid. Similarly, where more than one answer is provided to a required question, that nomination would also be invalid.

The Australian Electoral Commission has been given the power, by schedule 1, to ensure that such deliberate contraventions of this process can result in that rejection of a nomination. Outside of this ability to reject a nomination, JSCEM, importantly, also noted that the Australian Electoral Commissioner should not be placed in the position of having final discretion on matters related to section 44. This is to ensure that no claims of bias can be levelled at a position that is deliberately and fervently independent.

The most important feature of this checklist is to ensure that those who are deliberately seeking election with prior knowledge of ineligibility cannot avoid scrutiny. Completing this checklist does not automatically guarantee a candidate is eligible for federal office. The parliament and the judiciary rightly remain paramount in these cases for important constitutional reasons. But what this compulsory checklist does ensure is that all candidates for federal office consider their circumstances carefully and provide evidence wherever ambiguity exists. Providing deliberately false or misleading information will rightly attract a penalty under the Criminal Code, where either a maximum penalty of imprisonment for 12 months or a fine of $12,600, or both simultaneously, can apply.

The Australian public are seeking certainty—certainty that the next parliament is not plagued with the same eligibility issues as the current one. When an Australian voter casts a ballot this year, they should feel certain that their elected representative is an eligible representative under our Constitution. Obviously it would be better if this bill was not necessary, but the parliament must act before the next federal election to ensure public faith in this institution is restored.

The Joint Standing Committee on Electoral Matters is a bipartisan committee that we trust to investigate these sorts of matters, and it has recommended this action. I want to thank and acknowledge all of the members of the committee—on our side, the members for Scullin and Oxley and Senator Ketter and Senator Brown—for the work that they've put into reaching this agreement on this part of the legislation. The opposition will be supporting this important first schedule in the bill we are debating here today.

Schedules 2 and 3 of this bill are less significant. They deal with administrative changes to the AEC and alterations to the voting and scrutiny process. Although these schedules do have merit, we on this side, the Labor side, do not believe that the parliament should rush changes to our elections and electoral system without just cause. It's vital that when this parliament considers electoral law we do so with bipartisanship, consultation and consideration. It's imperative we do this not because the proposed law is overly complex or without merit but because it is a law that governs ourselves. We owe every member of this parliament the chance to scrutinise such rules and interrogate their practical application. For that reason, and thanks to bipartisan negotiation between the government and Senator Farrell, this bill will be amended in the Senate to reflect the extra work that has to go into the other schedules.

The amendments foreshadowed in the other place will reduce this legislation to only those sections necessary to the operation of the next federal election. This bill will be reduced to the compulsory checklist for all candidates and the administrative changes to ensure the efficiency of the ballot count later this year. The sections that will remain in this bill include extending the six-metre exclusion zone to pre-poll stations, consistent with normal polling booths. This is a simple but commonsense change. Administrative changes that the opposition have deemed necessary to remain in this bill also include amendments to the forwarding and processing of declaration votes, the removal of the requirement to conduct the divisional returning officer Senate count, and streamlining the process for counting and packaging House of Representatives ballot papers. These measures will improve the efficiency of the Australian Electoral Commission and assist them with the process of counting the vote.

Finally, Labor believes the sections allowing for the earlier commencement of preliminary scrutiny of declaration votes—removing the requirement to reduce postal vote applications for preliminary scrutiny and allowing for the earlier recheck of rejected declaration votes—should all remain, further assisting the commission without jeopardising the integrity of the count. Labor believes the remaining sections should be removed until such time as they can be considered and discussed properly. Labor will work with the Australian Electoral Commission to ensure that any constructive changes that are not achieved in this term of government are realised as soon as practicable in the next.

It's vital that this parliament act on the recommendations of the Joint Standing Committee on Electoral Matters and provide the certainty demanded by the Australian public. Our democracy relies on public faith, and this is one step in restoring it. Can I say again, with the arrival of the member for Scullin, how much we appreciate the work done by all members of the JSCEM on both sides of parliament to reach this conclusion and this agreement on schedule 1 and other associated matters after the good work of Senator Farrell and other colleagues in both houses and on both sides.