26 August 2021: Electorate Legislation Amendment

26 August 2021

Electoral Legislation Amendment (Counting, Scrutiny and Operational Efficiencies) Bill 2021, Electoral Legislation Amendment (Party Registration Integrity) Bill 2021, Electoral Legislation Amendment (Electoral Offences and Preventing Multiple Voting) Bill 2021

Second Reading

Senator McCARTHY (Northern Territory—Deputy Opposition Whip in the Senate) (10:45): [by video link]

The Electoral Legislation Amendment (Counting, Scrutiny and Operational Efficiencies) Bill 2021 introduces a range of measures designed to increase the efficiency of voting and counting. It supports the enormous work of the Australian Electoral Commission in planning and conducting federal elections.

In 2019 the AEC employed a temporary workforce of 90,000 people and provided over 500 prepoll or early voting locations right across Australia. It issued more than 1.5 million postal vote packages, had more than 550 mobile polling teams—visiting over 3,000 locations—and provided 6,571 polling places on election day. On top of that, the AEC deals with nominations and candidate eligibility, and complaints about electoral authorisations and election advertising. It maintains an accurate and secure electoral roll and regulates electoral expenditure and election-funding claims from candidates and political parties.

This bill contains welcome measures to streamline the AEC's processes so that we can have a smooth-running election and get a result as early as possible. While an efficient election is a good election, we must ensure that the process of enrolling and voting enfranchises all voters, no matter how remote. The Northern Territory has the lowest rate of voter enrolment in Australia, with estimates of more than 26,000 people from rural and remote areas not being enrolled to vote. It's no accident that, along with the low numbers of rural and remote enrolment in the Territory, the AEC is woefully understaffed, and that's thanks to cuts from the Morrison government. Under a federal government restructure in 2017, the Australian Electoral Commission office in Darwin was reduced from 16 staff to three, with five jobs axed in enrolment and four in Indigenous participation and voter education. It was an underhanded and effective way of reducing the democratic rights of people who are already some of the most disenfranchised in the country.

Before the cuts, the AEC had managed to increase the NT enrolment rate, over the two years to 2018, from 79.4 per cent to 84.1 per cent. However, this rate was still significantly lower than in other states and territories, where 96 per cent of people are on the roll. It's been estimated that up to 40 per cent of First Nations people in the Northern Territory may not be enrolled to vote. The underfunding of the AEC and the resulting denial of voting rights is an absolute scandal—it really is. In 1996, when the Howard government were elected, one of the first things they did was to get rid of the Aboriginal voter education and enrolment service in the Electoral Commission, limiting the capacity of the commission to go and enrol people and to educate them about their obligations and rights as citizens to exercise a vote.

I've spoken on numerous occasions in the Senate about the importance of language and of translation into First Nations languages. Here in the Northern Territory, we have around a hundred First Nations languages, so that kind of education was critical. The evidence shows that conservative governments have continued to passively—and actively—prevent the enrolment of First Nations people by continuing to cut funding to the AEC, restricting its ability to engage, educate and enrol remote voters. This is why Labor has introduced an amendment to the bill that calls on the Morrison-Joyce government to close the gap by providing more resources to the Australian Electoral Commission so that people living in disadvantaged, remote and regional communities can exercise their democratic right to vote.

The concern about the effective disenfranchising of thousands of remote and mainly First Nations voters has led to Territorians exploring legal channels to end what they see as discrimination in voting. On 15 June 2021 a complaint was made to the Australian Human Rights Commission about the maintenance of the electoral roll and the conduct of the Australian Electoral Commission in the 2019 federal election in respect of remote Aboriginal communities. The complaint was made by Matthew Ryan from Maningrida and Ross Mandi of Galiwinku. These Aboriginal communities in Arnhem Land are the sixth- and eighth-largest towns in the Northern Territory, with populations of 2,308 and 2,088 recorded in the 2016 census—an increase of over 40 per cent since 2001. Maningrida and Galiwinku are part of the federal electorate of Lingiari, which has an Indigenous population of 41.7 per cent—the highest in the nation, followed by Durack in Western Australia at 16.7 per cent.

As is common in remote Aboriginal communities, there are no enumerated street addresses or letterboxes and no Australia Post mail service directly to a residence. Instead, residents collect mail from the community post office or may use a private postbox. In 2012 the Commonwealth Electoral Act 1918 was amended to provide for Federal Direct Enrolment and Update to address an alarming drop in the number of eligible persons on the electoral roll—in 2009 enrolment was at 91.63 per cent and trending downwards. The amendments empower the AEC to directly enrol eligible persons who are not on the electoral roll or to update the contact details of persons on the roll, such as change of address, using electronic data from trusted agencies. These trusted agencies at present include Centrelink, vehicle registration and drivers licence agencies, and the Australian Taxation Office. The AEC simply gives written notice to the person that enrolment or an update of an existing enrolment is proposed. After 28 days, if there is no response, the AEC actions the enrolment or update.

Importantly, the amendments explicitly empower the AEC to give written notice to electors by electronic means—particularly email, SMS text messages and social media—as well as by ordinary mail and registered mail. Electronic notification is key to the success of the amendments. It resulted in a staggering 97 per cent enrolment for the 2019 federal election, which the Australian Electoral Commissioner Tom Rogers described as 'the best roll since Federation', a genuine piece of unalloyed good news and a stellar result, and a 'modern miracle' of which he was very proud. However, the good news does not extend to the electorates of Lingiari in the Northern Territory and Durack in Western Australia, which sit in the lowest enrolment rate band of 75 per cent to 80 per cent—substantially lower than 97 per cent. Nor does the achievement extend to remote Aboriginal communities in other federal electorates, or in electorates for the Northern Territory elections.

The primary reason the enrolment rate languishes in remote Aboriginal communities is that as a matter of policy the AEC does not apply the most effective tool at its disposal to address that deficiency—namely, direct enrolment and update. The AEC claims that direct enrolment and update cannot be used because there is no direct post to residences in Aboriginal communities. So there we have it. The AEC has explicit power to give notice solely by electronic means and regularly does so for other Australians and other Territorians. Exercise of that power is not reliant on the existence of a direct mail service.

On 4 June 2021 the NT Electoral Commission reported that the AEC's policy disadvantages Aboriginal electors in the Northern Territory and should be reviewed. As at 30 June 2020 it was estimated there were 52,847 voting age Aboriginal electors in the Northern Territory—16,527 of which were not enrolled to vote. The Northern Territory Electoral Commission said that the majority of Aboriginal Territorians live in regional and remote areas not covered by the Federal Direct Enrolment and Update program. So the AEC's policy here predominantly affects Aboriginal residents of remote communities and is discriminatory. The policy operates in practice as a form of voter suppression or gerrymander whereby the franchise for Aboriginal residents of remote communities is suppressed or inhibited in federal and NT elections compared to non-Aboriginal Australians and non-Aboriginal Territorians.

Mr Ryan and Mr Mandi also complained that the AEC does not accurately report electors' addresses in Aboriginal communities, which inhibits participation in the electoral process, and that in the 2019 federal election the AEC did not ensure equal provision of polling booths in Maningrida, Galiwinku and other sizeable Aboriginal communities compared to other towns in the Northern Territory. They argued that these instances of indirect discrimination also breach sections 9(1) and (1A) of the Racial Discrimination Act 1975. The Australian Human Rights Commission has been asked to conciliate the complaint and, if conciliation is unsuccessful, the argument will go to the Federal Court for decision.

It's not good enough that thousands of Territorians do not get to exercise their basic democratic right. It is a situation that this government could have alleviated with the stroke of a pen, but there is no political will. In fact, there often seems to be an active campaign from the conservatives to restrict and block First Nations Territorians from voting.

We've already successfully fought for the Northern Territory to keep its level of representation in the federal parliament. In July 2020 the AEC determined that the Northern Territory was entitled to only one seat in the House of Representatives. Dozens of groups across the Northern Territory—from the Central Land Council, the Northern Land Council and the remote children's parents association to the Chinese Literary Association on Christmas Island—supported my call for the Territory to retain two seats: Lingiari and Solomon. We passed legislation that was hailed across all sides of politics that ensured Territorians would be rightly and properly represented here in the national parliament. Now we need to ensure that all Territorians, no matter where they live—no matter how remote—get to be enrolled and get to have a vote.

It is going to be difficult in the upcoming election to ensure remote voters are enrolled and able to cast their votes. Trying to plan for an election during a pandemic is difficult enough, but the Morrison-Joyce government's failure to do its two jobs during this pandemic makes the AEC's job so much more difficult. The government should be doing so much more too. At least this legislation will make things, hopefully, a little easier for the AEC.