ELECTORAL BILL 2017

2nd Reading Speech

22 November 2017


The Hon. ADAM SEARLE ( 12:08 ): I lead for the Opposition on the Electoral Bill 2017 and note that the Opposition does not oppose the bill. The NSW Labor Party made submissions on the draft bill, and a number of submissions have been incorporated in the version of the bill we have before us. We commend the Government for its positive response; the electoral laws of this State should not be a political football. The object of the bill is to make provisions for the conduct of State parliamentary elections. The bill repeals and replaces the Parliamentary Electorates and Elections Act 1912. It is based upon a number of reports from the Joint Standing Committee on Electoral Matters, on which the Hon. Peter Primrose and the Hon. Courtney Houssos have served, and I note the shadow Attorney in the other place also served on that committee from 2012 to 2015. The bill is also based on suggestions from the NSW Electoral Commission and more widely.

Self-evidently, the legislation that this bill repeals is more than a century old, and it looks it. A series of amendments and changes over time have not made it clearer or better designed and has necessitated an overhaul. The joint committee’s intention and the Government’s stated aim in introducing a modernised version of the legislation is a good objective. The Government presents the bill as a modernised version of the existing law, largely based on the current position with a number of useful, if not life-changing or earth-shattering improvements. We agree with those objectives. The committee chair’s foreword at page viii of the report stated that “whilst the essential principles of our representative democracy remain valid, the legislative framework through which they are given effect, requires modernisation”. We agree with the substance of that comment.

While the Government places great emphasis upon its reliance on the joint committee’s reports to develop the provisions of the bill, it is certainly not the case that all the committee recommendations in their entirety have been adopted. Given the high number of recommendations and the complexity and importance of the subject matter it would be nothing short of extraordinary if all of them were adopted completely. For example, recommendation 19 of the committee’s report on the administration of the 2015 New South Wales election and related matters recommended that the Government increase the number of required nominators for independent Legislative Council candidates from 15 to 100.

Clause 83 of the bill does something else and says there are 50 rather than 100 nominators. I notice that has also been the subject of change, so we think the Government rather than the committee has the balance right on these changes. Recommendation 6 of the committee’s 2015 election report made some commentary about iVote. Again, we do not disagree with those provisions. However, the most significant discrepancy between the committee’s recommendations and the provisions of the bill that deserve some comment relates to recommendation 1 of the 2013 report, which states:

That the NSW Government introduce legislation for a new electoral act for NSW which provides for both the conduct of State elections and the regulation of campaign finance and expenditure.

This bill does half of that by repealing and replacing the Parliamentary Electorates and Elections Act but leaves untouched the Election Funding, Expenditure and Disclosures Act, which of course would have been a much more challenging task to undertake, particularly in the time frame. I ask the Parliamentary Secretary in reply to indicate whether or when the Government intends to bring forward an overhaul of the Election Funding, Expenditure and Disclosures Act. In accordance with modern practice, the bill adopts an objects clause. Its definition provisions clarify and aim to simplify the terms used in the legislation in a range of ways that I will not go into now. The bill continues the provisions for the registration of political parties with what looks to be an enhanced capacity to obtain information from parties.

In relation to the conduct of parliamentary elections, the Electoral Commission is provided to be the returning officer with the appointment of officials to assist. The issue of writs for the normal four yearly election is set for the Monday following the expiry of the Legislative Assembly. That is sensible. This allows more time to publicise the date for the close of authorised rolls. The opening of nominations is allowed before the issue of writs for general elections. This can allow a longer period between the close of nominations, the subsequent ballot draw and the opening of the pre-poll period.

There are changes concerning child-related conduct to which we do not object. The Electoral Commission will have powers, with the approval of the Secretary of the Department of Premier and Cabinet, to requisition halls and rooms as voting centres because of the features of the facilities; for example, wheelchair accessibility or if other premises in the district have become unavailable due to fire, flood or other emergency and no alternative is reasonably available. A voting centre cannot be a room or hall used exclusively for religious or residential purposes. No cost is payable, except reasonable costs for lighting, heating, air conditioning or cleaning, or the costs of repairs. Disputes about the amount payable are to be resolved in the Local Court.

The bill re-makes the provisions for the Court of Disputed Returns. There are new provisions about prosecuting parties that are unincorporated associations. Part 10 of the bill has various miscellaneous machinery provisions that include a regulation-making power. I note that penalties for electoral offences have been maintained. The draft bill did seem to reduce a number of existing penalties, for example, in clauses 183, 186, 187 and 195 of the draft bill but, as I will briefly touch on, the Government has abandoned those changes and we welcome that.

The Australian Labor Party NSW Branch made a submission and it is worth touching on some of the points made. For example, new section 66 required that the registered officer of a political party must make an application to amend its particulars on the register of parties within 10 days of an amendment. The Labor Party considered that 10 days was an unreasonably short period within which to finalise amended rules for lodgement with the Electoral Commission. For example, such a short time frame would not allow an appropriate time for internal checking. The Government has extended that time to 21 days rather than the two months we had suggested. The fact the Government positively engaged was worthwhile.

We had concerns also about whether it should be a notification or a proper application. The Government has indicated that there would be no change to that because the Electoral Commission would be likely to refuse an application to change the name of a party to the name of an existing party if it was an application made during a freeze period or it was not merely a notification; it was simply the capacity to make substantive changes. Therefore, we note the Government’s reasoning and will not agitate the issue further at this point. We also had concerns about the new provision in new section 180H of the bill, which provides that non-complying electoral material would include material that “contains a statement intended or likely to mislead an elector that the material is an official communication from the Electoral Commissioner or the Electoral Commission”.

The Labor Party provided a response to the inquiry into the 2015 State election by the Joint Standing Committee on Electoral Matters that outlined concerns in relation to other parties’ conduct. We welcome stronger provisions to prosecute such behaviour. We were concerned that the framing of the provision might overreach. For example, we are mindful that it is a key function of registered parties to inform voters about elections and what they should do. The Labor Party requested that the proposed provision be amended so that where the material has been clearly authorised by a political party and the material did not breach section 180H, it ought to be amended in a way that only included false statements. The Government has not taken up our suggestions on the basis that material clearly authorised by a registered party would be unlikely to be found to fall foul of the provision. The Government’s view was that the proposal about limiting it to only false material would be a weakening of the provision. I am sure this is an issue that will get exercised in the practice of elections; time will tell.

We also have concerns about the way in which new section 210, which replaces section 151 of the Parliamentary Electorates and Elections Act and specifically section 210 (1), seeks to provide “the free exercise or performance by any other person of any political right or duty that is relevant to an election under the Act”. The Labor Party supports that objective but considered that the drafting was ambiguous. It is unclear whether the provision would be limited to activities in direct connection with an election or whether it could have application, for example, to the internal processes of registered parties such as preselections. The issue was raised at budget estimates with the Premier and the Electoral Commissioner but was not resolved there. The Labor Party made suggestions that section 210 (1) be amended and the Government has in part taken that Labor Party’s proposal on board.

In relation to the diminution of the maximum penalty, the Government has, on second thoughts, decided to retain the existing penalty and we certainly welcome that. There was a range of proposed reductions in the maximum imprisonment penalties across a range of provisions in the bill that the Labor Party did not support. At present, anyone who prints, publishes or hands out unauthorised election material of the type witnessed in Federal and State election campaigns, for example, in Lindsay and East Hills respectively, faces significant fines and a sentence of up to six months imprisonment. That penalty was removed from the draft legislation. Additionally, under the proposed amendments the maximum sentence for the offence of electoral bribery was reduced from three years to two years.

The proposed decreases in maximum penalties of imprisonment came at a time when the Electoral Commission had confirmed that in recent local council elections in Sydney it was investigating highly inflammatory, homophobic and unauthorised election material aimed at Labor candidates in Chinese-speaking communities. We considered that was a weakening of important integrity measures and was of great concern. Of equal concern was that neither the Electoral Commissioner, the Premier nor her departmental secretary—who were at budget estimates—was able to explain how or why those changes came about. I recognise that the Government has responded constructively and taken those suggestions on board.

As with the reduction in the maximum jail penalty proposed in the original clause 210 of the bill, the Labor Party considers that any perceived weakening of the consequences of undermining the integrity of our democratic processes must be avoided. The bill is an opportunity to improve public confidence in the electoral system by strengthening both the processes and the penalties for breaching laws. In its original form the bill appeared to do the opposite in many clauses and sent a green light to those who would corrupt or undermine the integrity of the electoral system. That should not be permitted and we welcome the Government’s positive response to that.

The Opposition was concerned that the ability to issue penalty notices provided by clause 263 of the bill was cast too widely. The power to issue penalty notices will now be restricted to authorised officers being inspectors within the meaning of section 110 of the Electoral Funding, Expenditure and Disclosures Act 1981. That is a suitable response to the concerns that we raised. The Opposition raised other matters in its submission, but those were the key concerns. We are content that the Government has engaged constructively with us and has taken our key concerns on board. The Opposition does not oppose the legislation.