Dissenting report - Labor members

Optional Preferential Voting & Robson Rotation Method

Labor is a strong defender of Australia’s compulsory voting system and we oppose the removal of compulsory preferential voting. Compulsory voting is the cornerstone of Australian democracy and is known to improve satisfaction with democracy. The Chair’s recommendation for optional preferential voting is a clear attack on compulsory voting at a time when we need it the most.
Optional preferential voting, where only one box on a ballot paper needs to be numbered, results in a significant number of votes being wasted if a voter’s single preference isn’t elected. Instead of the full preferential voting system where the voter’s second and subsequent preferences are allocated, their vote is simply discarded after their first preference is exhausted. It has been shown that, where given the option, only the most engaged voters distribute all their preferences which results in the disenfranchisement of a significant number of voters and undermines our compulsory system of voting. In his foreword, the Chair states that this will maximise voter choice — in actual fact it does the opposite.
Labor members of the Committee note that the close proximity of the New South Wales state election (which allowed optional preferential voting) to the federal election may have resulted in some confusion amongst voters. However, New South Wales is one of only two Australian jurisdictions which does not have full preferential voting. If there was confusion, it is New South Wales which should be changing its system of voting to bring it into line with the rest of the country.
Labor members of the Committee oppose the introduction of the Robson Rotation method of ordering candidates on ballot papers. This will only cause further misunderstanding amongst voters and is a further attack on what is an established, easy to understand system where voters can follow How to Vote cards. Many voters rely on and seek out parties’ How to Vote cards and having this feature removed may mean that a voter does not vote as they intended. Labor believes that the current system of a draw to determine the order of names on a ballot paper is the fairest method of allocating the order of candidates.

Sorting and counting of pre-poll votes

Labor members of the Committee recognise that a result as early as possible after the close of polls enhances the confidence that citizens have in our electoral system. With the increase in early voting, Labor notes the corresponding increase in workload for officers of the AEC and the increased potential for a delayed result. Labor members therefore agree with the Committee’s recommendation that the unfolding and sorting of pre-poll ordinary votes be permitted from 4pm, with the count to commence from 6pm. Labor members also agree that postal votes and other declaration votes may be opened and sorted, but that no vote should be viewed prior to counting commencing at 6pm on election day.
Labor members do not agree with the recommendation that counting of pre-poll ordinary votes commence from 4pm on election day. Effective scrutiny of vote counting cannot be undertaken if scrutineers are not permitted to communicate with candidates or parties. In addition, even with a prohibition on communication, any early vote counting leaves open the risk that results will be disclosed which could affect the outcome of the election.

Regulation of Associated Entities, Third Parties and Political Campaigners

It is unclear what the Chair is recommending regarding affiliated organisations and Labor members of the Committee believe that the status quo should be maintained.
There is a clear definition of ‘associated entity’ contained in the Commonwealth Electoral Act and the AEC has been clear in its interpretation of that definition. Broadening this definition further would amount to an attack on working peoples’ rights to join unions and campaign on issues that are important to them. It would be an attempt at silencing the Government’s critics and suppressing political communication.
Lowering the threshold for political campaigners would unduly increase the administrative burden on grassroots campaigners and preventing union members or volunteers for specific causes engaging with voters at polling places is an undermining of our democracy.
Suppressing legitimate third party campaigners is a clear attack on democracy and should sound alarm bells for anyone who believes that every citizen should have the right to be involved in our political processes.

Voter ID Laws

The Liberal members of the JSCEM have recommended Voter ID laws in the 2013, 2016 and now the 2019 federal election inquiry report. These recommendations have consistently been rejected by Labor.
There is no justification in the Australian context to require voters to present identification. The Electoral Commissioner gave evidence to the Inquiry that multiple votes represented just 0.03% of total votes in the House of Representatives and the majority of those were by people experiencing mental health issues. Requiring people to provide identification may have the effect of discouraging some people from voting, and in turn, undermining our system of compulsory voting. This is particularly the case for people experiencing homelessness and domestic violence, and Indigenous voters. While the recommendation includes an allowance for people without access to identification to vote if a health or welfare officer vouches for them, this still provides an additional barrier to voting.
Much effort has been made in recent years to increase voter participation among these groups and requiring people to provide identification may erode the gains that have been made.
In addition, a Voter ID system risks increasing the administrative burden on the Australian Electoral Commission when its resources are already stretched.
Requiring identification merely complicates the voting process and is a clear attempt by the Liberals at suppressing the vote.


In the Chair’s foreword he suggests that by-elections be abolished and that the party of the departing member choose the replacement.
Labor does not support a reduction in the democratic rights of Australians to choose their lower house representatives.

Additional Comments

Candidate Qualification Checklist

Labor is and has been supportive of the candidate qualification checklist since the issues arose with candidates’ eligibility under section 44 of the Constitution. Labor supports further reform to ensure that members of parliament are not in breach of the Constitution.

Political Donations

The Committee heard from a large number of submitters who believe that the electoral funding and disclosure system requires reform to improve transparency of political donations and guard against undue influence of our elections. Labor members of the Committee agree with this proposition.
It is disappointing, but not surprising, that Government members have not taken the opportunity to recommend large-scale reform.
Labor is proud to have continuously fought for greater transparency of political donations. It was Labor, under Bob Hawke, that was first to introduce a donations disclosure regime back in 1983. The disclosure threshold was set at a fixed $1,000 but in 2006 the Liberal Government, under John Howard, increased the threshold to $10,000 and linked it to CPI — because it wanted to hide the donations it was receiving. Indexation has caused the threshold to blowout to a staggering $14,300. Any donations received below that amount do not have to be disclosed. This is unacceptable in the modern era and something that Labor is committed to changing.
Labor has two private senator’s bills before the parliament – one to lower the disclosure threshold to a fixed $1,000 and the other to introduce a real time disclosure system. At present, it can be up to 19 months before electors find out who has made a political donation — and who might be seeking to influence a political campaign. Technological advances mean that we now have the ability to report in real time. It is something that can and should be done to give voters as much information as possible prior to an election. To that end, the Australian Electoral Commission needs to be appropriately funded so that it can implement a fit for purpose, user-friendly funding and disclosure portal to increase the transparency of political donations.
The above reforms will build on those Labor has already achieved including:
banning foreign donations and protecting our political system from foreign interference;
linking public funding to campaign expenditure, preventing parties from profiting from the electoral system;
increasing funding for political parties to improve cyber-security; and
establishing new offences and increased penalties for abuses of the political donation disclosure regime.
In addition, Labor believes that donations and expenditure caps are necessary to increase transparency, level the playing field, and reduce parties’ reliance on political fundraising—and the risk of corruption. Many states and territories have already implemented donations and expenditure caps.
Currently there is no limit to how much a person or entity can donate to a political party or candidate. In 2016/17 Malcolm Turnbull donated $1.75 million to the Liberal Party — the largest political donation that year. But this was eclipsed by Clive Palmer’s record-breaking donation to the United Australia Party leading up to the 2019 election—an eye-watering $83 million. New South Wales, Victoria and Queensland all have caps on political donations and the Commonwealth is lagging behind.
Donations caps should work hand in hand with expenditure caps. Expenditure caps would level the playing field for candidates and parties and ensure that election debate is not dominated by the party with the biggest bank balance.
To support these measures, and to reduce parties’ reliance on fundraising, the rate of public election funding should be increased, and parties and elected independents should be provided with administrative funding to help cover the increased cost of compliance.

Reform of the Commonwealth Electoral Act

The Commonwealth Electoral Act 1918 is one of Australia’s oldest pieces of legislation. It is long, confusing and highly prescriptive and has been amended over the years in a piecemeal fashion.
There is clearly room for simplification and reform yet this must be done in a bipartisan manner and with appropriate consultation.

Management of the Electoral Roll

Labor supports initiatives to aid in the technological advancement of the Australian Electoral Commission’s systems. However, this requires not only sufficient resourcing of the AEC to maintain its rigour and independence but also, in the event of a single electronic certified role, appropriate cyber security protections.

Pre-poll Voting Period

Labor members of the Committee are generally supportive of the idea of statutorily limiting the pre-poll period. However, the current pandemic environment needs to be taken into account as the AEC may need the ability to extend the period of pre-polling in the interests of public health. This flexibility may also be required in other times of emergency. The JSCEM is currently inquiring into this issue in its separate inquiry on conducting elections during emergencies and it may be more appropriate to wait for the outcome of that inquiry before legislative change is made.

Election Blackout Period

With the increase in and advancement of technology there is a clear need for reform of our political blackout laws. The blackout period which applies to TV and radio advertising is ineffectual if it doesn’t also apply to newspaper advertising and online platforms. Labor members of the Committee believe that more consideration needs to be given to whether the restrictions on radio and television broadcasts be removed, or whether other forms of advertising and broadcasting also be subjected to the blackout period. Extending the blackout to social media platforms could reduce the risk of misinformation or disinformation being disseminated in the last few days of a campaign. Whatever the outcome, there must be consistency in treatment of the various platforms and media outlets.

Truth in Political Advertising

The Chair’s approach to this issue is a start, but it is disappointing that the sole recommendation dealing with misleading political advertising is so limited. A large number of submissions received by the Committee focused on the need for truth in political advertising laws and research by the Australia Institute shows that 84% of Australians support such laws.
Labor believes that to protect our electoral system and democratic institutions, there needs to be legislation for truth in political advertising, not simply the adaptation of existing regulation or voluntary codes of conduct. Such laws have existed successfully in South Australia for several years and the ACT has just introduced its own truth in political advertising laws.
In his evidence to the Committee, ACCC Chair Rod Sims clearly stated it should not be that agency’s role, which is specifically focused on trade and commerce, to regulate political advertising. Labor members of the Committee also note the AEC’s concerns regarding a potential erosion of its independence if it were to be the regulator. More consideration needs to be given as to which body should be tasked with regulating truth in political advertising and whether a new, independent, election-focused body should be established.

Electoral Integrity Assurance Taskforce

Labor believes that the Electoral Integrity Assurance Taskforce is an important initiative which is vital as we face increased threats of interference from both domestic and foreign sources. The Taskforce must be appropriately funded so it can meet these threats.

Conduct at elections

Labor deplores and condemns any act of violence, abuse or intimidation whose purpose is to influence or disrupt those exercising their democratic freedoms. However, the offences listed in the recommendation are already captured by both state and federal criminal codes and it is questionable as to whether the Commonwealth Electoral Act is the most appropriate legislation to deal with this issue. The creation of a new, separate offence also risks having a chilling effect on legitimate political communication.

Size of the Parliament and Length of Parliamentary Terms

Labor believes that significant democratic reform is required, including four year fixed terms for the House of Representatives. This, and the issues of increasing the size of the Parliament and the nexus between the two houses should be canvassed in a separate, dedicated inquiry prior to being put to the Australian people.

Unsound mind provisions

Section 93(8)(a) of the Commonwealth Electoral Act states that:
A person who:
(a)by reason of being of unsound mind, is incapable of understanding the nature and significance of enrolment and voting;
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.
It is considered that the phrase ‘unsound mind’ is outdated and offensive, and that people with disabilities should be provided with the necessary supports to vote rather than not encouraged to enrol in the first place, or removed from the roll.
In 2012 JSCEM considered whether the provision should be removed in its entirety. JSCEM, however, decided not to make that recommendation, concluding that given Australia’s system of compulsory enrolment and voting, it provides a useful mechanism ‘to protect the integrity of elections and assist those who might otherwise have to deal repeatedly with the AEC as to why they are not complying with their enrolment and voting obligations’.[1]
In 2014 the Australian Law Reform Commission recommended that the provision be repealed in its entirety.
In 2017 New South Wales repealed the unsound mind provisions from its Electoral Act.
Labor members of the Committee note the AEC’s comments in a supplementary submission to this inquiry and its preference, based on consultation, that the provision remain but that the phrase ‘unsound mind’ be substituted with ‘lacking the cognitive ability’. Labor supports a solution which would address the concerns of people living with disabilities and their advocates and recommends that the AEC consult with the NSW Electoral Commission regarding its methods for dealing with voters lacking the cognitive ability to vote.

Improving access to voting and enrolment for Indigenous Australians

As at 30 June 2020 only 78% of First Nations Australians were enrolled to vote compared to 96.6% of the broader population. The statistics are worse in states and territories with large numbers of remote communities such as the Northern Territory and Western Australia. While Labor recognises the gains that have been made by the AEC in improving Indigenous enrolment, there is more that can be done.
To ensure that everyone has the maximum opportunity to participate in our democracy, we must facilitate easy access to enrolment. Strengthening automatic enrolment provisions contained in the Commonwealth Electoral Act would allow the same processes used for updating the roll for people living in metropolitan areas to be used for people living in remote communities.
In addition, the Committee heard from several witnesses that enrolment and turnout in remote communities could be improved by having more First Nations people employed by the AEC in these areas. This is an important initiative and Labor members of the Committee call on the AEC to listen to the feedback of stakeholders. The AEC also needs to be adequately funded to address the challenges of enrolment in remote communities. 

Registration of Political Parties

Under the Commonwealth Electoral Act a political party is required to show it has 500 members before it may be registered. There is an exemption in the Act which allows sitting members of the Federal Parliament to establish a party without having the minimum number of members. This loophole allows minor parties with little community support to undermine the integrity of our democracy and create instability. It is how Clive Palmer and Brian Burston were able to form the United Australia Party. No state except South Australia has this exemption.
The minimum requirement of 500 members for parties to be registered in other circumstances is a relatively low number in comparison to the various states taking into account their populations. New South Wales requires 750 members, Victoria, Queensland and Western Australia all require 500 members, South Australia requires 350 members and 100 members are required in Tasmania.
Increasing the minimum number of members required to 1000 and removing the loophole for sitting parliamentarians would ensure that a political party has an appropriate level of community support and prevent existing members from leaving one party and starting their own, and increasing instability in the Parliament.
Senator Carol BrownSenator Anthony Chisholm
Deputy ChairMember
Mr Milton Dick MPMs Kate Thwaites MP

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