Mike Elliott: Electoral (Miscellaneous) Bill

Extract from Hansard

Legislative Council
5 July 2001

Mike Elliott
Leader Australian Democrats
Member of the Legislative Council

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The Hon. M.J. ELLIOTT: The issue of voting age is something that has been under active consideration in our party for some time. In fact, the party's youth wing has been advocating a voting age of 16 for, probably, about five or six years. It is a matter that the party has not formed a firm policy on at this stage, but I am prepared to support the amendment, noting that enrolment is, in fact, optional for 17-year-olds.

While we can argue about 18 being the standard, I point out that it was not that long ago that 21 was the standard for many things. Sixteen-year-olds are in a position to make quite important decisions about such things as health treatment so, if we are empowering young people to, in confidence, make very significant decisions such as that, it does not seem to be asking a great deal of them to address the political system. As I follow the conversations that run around the dinner table at the Elliott household, I notice that 17-year- olds are alert to what is going on around the place and are quite capable of making sensible decisions. As I said, in the absence of party policy in this area I am prepared to support the amendment at this stage.

The Hon. M.J. ELLIOTT: I wish to explore section 27A, the principal provision of the act, and then look at the amendment. There is no doubt in my mind that section 27A exists for the sole convenience of members of parliament and not in any way for the benefit of the electors themselves. Section 27A(3) provides that information is not to be disclosed to a person of a prescribed class if the elector has requested in writing that the Electoral Commissioner does not do so. Will the Attorney-General explain how a person is aware that they have that right? How does the mechanism work, and how clearly is it displayed on the forms given to electors?

The Hon. K.T. GRIFFIN: It is currently on the enrolment form. There is a box which states, `Do you not wish to have this information passed on to members of parliament?' If you tick the box it will not be handed on. It would be excluded from the roll.

The Hon. K.T. GRIFFIN: I am informed by the Electoral Commissioner that not everybody has to fill out an enrolment form, even when they shift from location to location, but every time the details change an enrolment form is completed. I am told by the Electoral Commissioner that most people tick the box to opt out.

The Hon. M.J. ELLIOTT: It has to be noted that there are matters of significance in relation to privacy involved in this. It is not just a matter of knowing what elector lives in a place, but you are supplying gender, potentially place of birth and now precise age. That is wonderful for those MPs who like setting up databases so that they can track every person in the electorate and do their little targeted mailings, which often say the exact opposite to different people depending on what age, gender and so on they are. It is not to the benefit of the voter and does not relate to the purpose for which information is supplied. The amendment now before us seeks to broaden this so it is supplied not only to members of parliament but potentially to any candidate. The Attorney-General has already made the point that potentially a candidate could be an extremist group. If you were a private detective you could set yourself up as a candidate and get access to the electoral roll-that would not be too bad. You would then have everyone's age, date of birth-

The Hon. M.J. ELLIOTT: Absolutely; you get your CD burner to work and you have yourself a copy and Bob's your uncle. I suspect that the overwhelming majority of voters have absolutely no idea that the information is there. Certainly, we know that some people, because they are fearful of recriminations from former partners or whatever, do not appear on the electoral roll in the form in which it is distributed, but many other people might be at greater or lesser risk from simply having their names and other information distributed without their knowledge or consent. I am concerned that that is already happening and the opposition amendment seeks to broaden that further and provide even more precise detail about age and so on. The amendments take the current situation, which is unacceptable given the way people think about privacy these days, and make it worse.

The Hon. M.J. ELLIOTT: What information is supplied to sitting members in relation to new electors who come onto the roll? Are they told that this is a newly enrolled voter or that the person has transferred from another electorate, because that would tend to give the age information in any case?

The Hon. K.T. GRIFFIN: If an honourable member wishes to have information as to whether or not an enrolee is a new enrolee by virtue of age, or has moved from interstate or overseas and become a citizen, or is a citizen returning to South Australia, that information is available if the honourable member wishes it.

The Hon. M.J. ELLIOTT: I point out that under section 27A(3) of the principal act a person may have said that they do not want information disclosed but, effectively, if they are a new enrolee who has not transferred from one electoral division to another and has not, I suppose, become an Australian citizen, the age has just been supplied in any case and the gender is not that hard to work out. It is interesting that a person can tick a box saying, `I do not want that information supplied' but, effectively, it is being supplied by the back door.

The Hon. K.T. GRIFFIN: No, that is not the case. If one looks at section 27A one can see that it deals with the disclosure of the elector's sex, the elector's place of birth, and the age band within which the elector's age falls. Subsection (3) relates to that information.

The Hon. K.T. GRIFFIN: It does not relate to the information that the honourable member has just requested.

The Hon. M.J. ELLIOTT: Paragraph (c) of the Hon. Carolyn Pickles' amendment seeks to strike out subsection (3), which allows people to say that they do not want information to be disclosed. We have just been informed that the overwhelming majority of people are saying that they do not want information disclosed, but what is the reaction of the Liberal and Labor Parties to this?

The Hon. M.J. ELLIOTT: Well, they don't want this disclosed, but we are going to make them disclose it. So, all those privacy principles that they sought to bring in a couple of years ago have shifted the other way. They have suddenly realised that people did not want them to have this information, which was vital for their use and their use alone. This is an outrage. I do not think that the public is aware of just how far this is intended to go.

The Hon. M.J. ELLIOTT: The point is that four years ago we moved in the other direction. At that time, we realised that, if people wanted privacy, they had a right to it. Four years ago, this parliament voted for privacy. What you are doing today is saying, `Heck, they're exercising this right; that's a bad thing, so we're going to take it away.' That is what you are doing, and you have not justified it. I challenge the Leader of the Opposition and the government to say why the people should now be told, `Despite the fact that you don't want this information supplied, we're going to make you supply it.'

The Hon. M.J. ELLIOTT: South Australia has made a small amount of progress in the last decade on issues of privacy. I remember information privacy guidelines being issued in the parliament and an absolute refusal to legislate in the area. That happened under Sumner and was supported by the Liberal Party. To this day we have not seen legislation in the area of privacy, but at least the guidelines were there. Four years ago some progress was made in the Electoral Act in terms of giving people the right to choose not to have information supplied to people they did not want it supplied to. So, some progress has been made.

What is happening overseas- particularly in the European Union where legislation is very strong not just in relation to electoral legislation but in terms of anybody who supplies information to anybody, and the purpose to which it is then applied-is that the international trend is quite clear in terms of data privacy and is going in the exact opposite direction to where we are going right now. The reason we are going in this direction right now-and make no mistake about it-is to do with the political expedience of the Liberal and Labor parties. That is the reason they are doing it. The Hon. Terry Cameron talked about the fact that the upper house members did not have access to certain information. But look at the amendment. The National Party has a member in the lower house in the seat of Chaffey who will be entitled to receive certain information. If the National Party is contesting against the Liberal Party in another seat, will it have access to the information? No, it will not because the amendment that is being moved by the opposition talks about registered parties getting information as long as they have members with more than a thousand electors.

So it is conspiring to ensure that the National Party, which will be competing with the Liberals in a number of seats, will not have the same access. Nor, I suppose, does it want any independent Labor (or whatever term eventually emerges) running against it. We know that Mr Atkinson in the another house uses computer databases, and I can see his fingerprints all over these amendments. We know the way he operates and, quite clearly, being denied access to information for the last four years for new voters has been something that is not convenient to the operation of their electorate databases.

That is why it is here: it is Labor Party campaign convenience. Clearly the Liberal Party has done a somersault because it found that it is inconvenient because obviously it has its computer databases working a little bit better as well. This argument about the inconsistency between state and federal does not hold water because the inconsistency was created four years ago. We were trending in the right direction. What we hoped would happen is that eventually the federal parliament would follow us.

The Hon. M.J. ELLIOTT: I am sorry, I think it will happen. What I am saying is that the very clear international trend, at least in advanced countries-and we seem to be heading the other way at this stage-in all the first world countries, is that data privacy is a major issue and that legislation is being passed. I think it has been passed in all the countries comprising the European Union. South Australia, beyond the Electoral Act, is at serious threat of losing some trade opportunities because the European Union will start black-banning us in relation to trade and information because we do not have proper privacy laws. That threat is already there. If members of parliament are not prepared to set the pattern in what they are doing and are going in the opposite direction how can we expect change to happen in the private sector where it is also urgently needed?

The Hon. M.J. ELLIOTT: I had a close look at what happened in this parliament when the Electoral Act was being considered back in 1997. In fact, the Attorney-General introduced a bill to amend the Electoral Act in a number of ways, but it did not address this issue at all, and in fact this issue was not raised at all during debate in the Legislative Council.

The Hon. M.J. ELLIOTT: The information used to be supplied, and it was during the Labor years that information privacy principle guidelines were issued to all members of the public sector. Members might recall that in fact I tried to get a privacy act in place in South Australia. But eventually privacy principles were promulgated.

At some point subsequent to that-it might have actually been after the Liberals had come into government- public servants were looking at what the requirements were under those information privacy principles, and it was quite plain that the provision of this information breached the principles, the guidelines that had been issued to all public servants. So, quite rightly, quite properly, from that point the Electoral Commissioner withheld that information.

If one looks at privacy principles which have been promulgated worldwide, one of the most basic ones is that information which is collected from a person is used only for the purpose for which is was collected, unless consent has been granted for other purposes. What happened at that point is a member moved an amendment in the lower house which then said that members of parliament would have access to all this other information. A schedule of amendments came back to this place from the House of Assembly, and the Hon. Trevor Griffin moved that the Legislative Council disagree with that amendment, and then put forward his own amendment, which in fact is section 27A is it now stands, which says that members of parliament do have access to the data. However, and importantly, he did put in subsection (3) which provides:

. . . information is not to be disclosed to a person of a prescribed class if the elector has requested the Electoral Commissioner in writing not to do so.

The Hon. M.J. ELLIOTT: Wait a second-I am not finished yet. The Hon. Trevor Griffin at that stage had made sure that, indeed, privacy principles were being obeyed. The Hon. Paul Holloway got up to speak next, and he said:

The opposition agrees with amendment No. 1. I compliment the Attorney on the job that he has done in trying to clarify the amendment as it came from the other place, and I think that he has done a very good job in balancing the various needs. When dealing with information that is provided on an electoral role, given that we have compulsory voting throughout the country. . .

He went on, but I think the important thing is that the opposition at that point complimented the Hon. Trevor Griffin for that amendment, which gave members access to all that information, but also gave the right of privacy to electors so they could decide whether indeed they wanted that information to be divulged or not. I got up and spoke at that stage and said that I was concerned about the amendment that came in, that what the Hon. Trevor Griffin had done had certainly improved it but that I still had concerns. That remains my position, only now we have a severe deterioration. It appears now that both the government and the opposition are now recanting on something which they did only four years ago.. I am sure there are sensible people, on both sides, some honest people who really are feeling quite ashamed and concerned about what has happened here. If you go back and read the lower house debate you will find who a few of the key players were. It is not too hard to find out who the movers and shakers in the party were who really wanted this change that we are now seeing coming about.

So I thought it was important that the history of this be considered so that these amendments can be viewed in a very clear context. I do ask the Hon. Paul Holloway what he thinks has gone `seriously wrong' since he congratulated the Attorney-General on what he did back then. I would invite him to do that. Since he is going to vote on this clause, I think it would be only reasonable that he explain it to this place so the public of South Australia can understand why he has changed his mind, and I would hope that he could allay fears that it has nothing to do with the fact that virtually every South Australian, when given the opportunity not to have the information given to members of parliament, said, `I don't want it to be given to members of parliament.' So I think he should explain why he has made his turnabout and why the wishes of people should not be respected, and why the most basic of all privacy principles should also not be respected. I have not heard a member of the government or the opposition answer those basic questions; they have gone off on tangents and have done everything they can to avoid the core issue.

The Hon. M.J. ELLIOTT: The previous speaker has missed an essential point. It is simply a question of: for what reason is data collected and for what purpose is it used? The only reason the Electoral Commission needs the date of birth is to establish whether or not the person is old enough to qualify to vote. Under privacy principles the basic statement says that that information is used for the purpose for which it is collected, and the purpose for which it is collected is to establish that a person has a right to vote. That is what it is about. In terms of information about place of birth and things such as that, that also aids them in ascertaining whether or not they are who they claim to be and so on. All that information is about establishing whether or not the person has a right to be on the roll.

What had happened for a number of years is that, despite the fact that that is the purpose for which the information was being collected, a pattern had evolved where the information was being supplied for other purposes. What happened some four or five years ago was that, when the privacy principles were being enforced in the public sector, they said, `You should only use information for the purpose for which it is collected.' Quite rightly, the Electoral Commission said, `It is collected because we need to ascertain the person's identity to ascertain whether or not they are eligible to vote. It cannot be supplied for other purposes.' The Electoral Commissioner did what is required under the privacy principles, which were issued under the honourable Chris Sumner, as I recall, but I think that the then Liberal opposition was supportive of those principles.

What we are now doing is passing amendments which say, `There is another purpose,' and this other purpose is that members of parliament want it. Previously members of parliament could have got it. However, a person still had a right to say, at the end of the day, `I do not want it to be used for other purposes.' We are now told that 13 per cent of South Australians have said, `We do not want it being used for another purpose.' So far at least half of the people who have been asked that question have said, `We do not want it used for another purpose.'

The ACTING CHAIRMAN: Order! The Hon. Michael Elliott should ignore the interjections.

The Hon. M.J. ELLIOTT: I am not sure whether your mother ever said to you when you were young, `Two wrongs do not make a right,' but it is an absolute truism that, when someone else is doing something which is not right, it does not justify your doing it as well.

The Hon. M.J. ELLIOTT: I do not think I have commented on the question of size of membership for which a party should be eligible, and it is something that I have given some consideration to. I do not believe that the number of 300 is particularly onerous. It is a number that our party, really from day one, has never struggled to meet, and I think it would probably be true of many parties when they start. I suspect that when One Nation started in South Australia it had quite a dramatic influx of members; and, frankly, if a new party does not get to 300 members quickly, then it really has no future in any realistic political sense. So, I am wary of an increase in numbers because you can get to a point where it becomes anti-democratic and you are juggling a couple of competing concerns. The concerns raised by the government are legitimate, but there is a concern that the size could become so great that it becomes difficult-particularly if a party ended up not being a state-based party but perhaps had more regional affiliations.

It is quite possible that one would have to be careful about what the triggering number should be. But a membership of 300, really, at the end of the day, is not onerous. Parties often restrict the size of their membership by how much they decide to charge in membership fees. If people are really committed to what they believe in, they will still sign on the dotted line.

It is a little like when a person wants to nominate for a seat: they have to collect a certain number of signatures. Not everyone who signs up is absolutely committed to your candidacy necessarily, but they would support your right to contest a seat. I suspect that some people would have an attitude such as that with memberships, as long as one did not make the membership fees too onerous. I do not think a membership number of 300 is too onerous, but I would be cautious going much beyond that while the state's population is its current size. While the comment was made that interstate they have larger membership requirements, it should be noted that those states with larger membership requirements have larger populations as well. In per capita terms, the 300 figure is probably reasonably comparable with what is happening in other states. I indicate preparedness to support the figure of 300, but I would be concerned if there was a push to make it much higher without a significant rise in the population of the state.

The Hon. M.J. ELLIOTT: Frankly, I do not think any of the amendments currently before us will stop a lot of contrivances that people say they are seeking to prevent. For example, if there is a party with a membership of 500, it has 250 members to spare. It can go off and start another party and some people will hold dual membership. This other party can run under a separate name.

The Hon. M.J. ELLIOTT: I am telling you that people expressed concern about the problem. I am saying that, in relation to all the talk about related parties, at the end of the day that contrivance is still available. Before I offer a solution I am saying that it seems to me that many of the solutions hanging around here are not stopping that contrivance at all, so that is still possible. We know that the major parties have run bogus other parties and other candidates for a long time.

The Hon. M.J. ELLIOTT: I take it that the Hon. Terry Cameron is attempting to address, in particular, the question of the cost of a by-election, and I can understand that. The Democrats would have a preference that, indeed, we had a system such as the Tasmanian system, with its multi member structure. If a member resigns, there is a recount of all the ballot papers and, as a consequence of that, another person is elected. Usually, that would be a member of the same party. They do not have tickets, as such, because they have a Robson rotation which jumbles it up, and then the electors have chosen, effectively, the next person at the time of the election. It is one of a number of advantages that you can get out of a multi member system that you simply cannot get with single member electorates. There is unquestionably a problem there. It is a matter of how best to address it. I am not convinced that the methodology being offered by the Hon. Terry Cameron is the way to go, but there is no question that the issue that he is seeking to address is an important one.

The Hon. M.J. ELLIOTT: I want to explore the ramifications of that. How-to-vote material could potentially misrepresent a party in some way and use its name, but sometimes when you produce a how-to-vote card you list the names of the parties replicating the structure of the ballot paper so that people can compare it to what is on the ballot paper, and, as such, you would use the name. I have not had a chance to look at this as closely as I might, but I wonder whether, without intent, we are picking up the use of the name in that regard.

The Hon. M.J. ELLIOTT: I am saying that it is not unusual with a how-to-vote card for the names of the parties on it to appear in the same way as they appear on the ballot paper. Therefore, are you not effectively using a party name, and do you need consent to do so, although I do not believe that is the intent?

The Hon. M.J. ELLIOTT: I indicate that there are aspects of both amendments with which I have some difficulty at this stage. As we will revisit some parts of this bill, I ask that a few things might be considered. The concern I have with the government amendment is that it is not limited simply to the campaign period. I do think that it is legitimate that local government be in a position to restrict signage outside that election period. There seems to be quite a few private companies that are starting to use power poles in a similar way to the way in which political parties do; the more common ones are, `Work, ring this number', and `Lose weight, ring this number', but all sorts of other things are being put on the poles as well.

This parliament is already giving political parties a special exemption, if you like, from rules that generally cover advertising. I do not think the exemption should go outside the election period which, as I read the government amendment as it currently stands, it does. I do not think there is justification for advertising a free go until the writs are issued.

Having commented on that concern about the government's amendment, I was initially attracted to that of the Hon. Nick Xenophon. The seven days does not worry me. The fact is that any candidate worth their salt gets their posters up within 24 hours; in fact, some try to get them up within the first hour of the election's being announced. If they can get them up in an hour or two, seven days does not seem to be an unreasonable requirement. So, seven days does not worry me, and in the first instance I was attracted to recovering costs. But then I thought, `What a wonderful bit of vandalism.' We already know that many people lose their posters. All you do is wait until the eight days are up, then put them back up on the Stobie pole, and for every one that gets taken down by council it costs the other party $20. It is an effective form of vandalism: steal their posters during the campaign and put them back after eight days and get them to pay the bill. That is effectively what the amendment would allow. I know you do not intend that to happen.

The Hon. M.J. ELLIOTT: What I have practised over the years is to think in the ways in which you do to try to anticipate. For that reason, realising that that potential rort is there, I cannot support the Hon. Nick Xenophon's amendment because he has opened up a wonderful opportunity for some expensive political games. In my view, both amendments are flawed at this stage. I do not think there is disagreement on the overall thrust of either of them. I would hope that there might be an opportunity to revisit this, perhaps with an amendment that addresses those two issues.