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2021 State Election and 2021 Legislative Council Election Inquiry

Cassy O'Connor MP  -  Wednesday, 27 October 2021

Tags: Parliament, Transparency

Ms O'CONNOR (Clark - Leader of the Greens) - Mr Deputy Speaker, I very much welcome the opportunity to speak on order of the day 12, brought forward by the Independent member for Clark, Ms Johnston. I have an amendment to move to the motion that will enable the House of Assembly to participate fully in this select inquiry, as it is a joint select committee.

It is hard to escape the conclusion that the decision to have the state election on Saturday 1 May, and elections for the Legislative Council seats of Windermere and Derwent was a deliberate one. Of course, that question cannot be resolved unless you have parliament examine the decision and the potential consequences for voters and for democracy. As we heard from Ms Johnston, it is possible that somewhere in the order of 4000 Tasmanians were disenfranchised because there were two elections on the same day.

There was no rationale put forward for it at the time by the Premier. As we know, the date of the Legislative Council elections was known reasonably well in advance. They had been delayed as a result of the pandemic. There was no sound argument for having the state election on the same day as the Legislative Council elections, just as there was no sound argument for taking us to an election a year early. The only rationale for that at the time was in the hope of doing away with a troublesome Speaker, the former member for Clark and now alderman of Glenorchy City Council, Sue Hickey. That turned out to be successful.

We are back in here now with a government with a one seat majority that basically came down to a few hundred votes in Clark, which makes all the crowing about a strong, stable, majority Liberal government a little hard to stomach, because you would not exactly call it a massive ringing endorsement for the Liberal Government.

Mr Ellis - You have two seats.

Ms O'CONNOR - Right, thank you for that interjection, Mr Ellis, who is only in here because Mr Brooks had to withdraw; he did not actually win in his own right. We are the only party that contested this election that had a positive swing towards us. We absolutely romped in, in Clark and Franklin. There are tens of thousands of Tasmanians across this island, including in Mr Ellis's electorate of Braddon, who voted Greens. Both the major parties went backwards at the state election and the Greens did not. That is just a fact.

Mr Ellis was not elected at the last state election. The Greens in here were elected in our own right. Mr Ellis is here because Mr Brooks is not. So, if you want to keep interjecting Mr Ellis, I welcome the opportunity to take you on from the floor, because I think you are a fraud and a lightweight.

I want to go to the proposed amendment. I move that -

After paragraph (2), in the motion, insert:

(3) That the numbers of Members to serve on the said Committee on the part of the House of Assembly, be four; being one member of the Government, one member of the Opposition and one Green and one Independent.

The Government is resisting a joint select committee and will resist the amendment that I have put forward because the Government will not have control of that joint select committee. We have seen this pattern over the past eight years. If the Government does not think it has the numbers, or control of a situation it will resist it, at all costs. That, to me, is a mark of a government that is insecure at some level about the decisions that it makes. If you were completely comfortable that what you were doing as a government was the right thing and the decisions that you made were in the public interest, you would not worry about whether or not you had the numbers on a parliamentary select committee.

Given the topic that this select committee would be examining, it is right that it be non partisan and that no party has the numbers on this select committee. We need to have a balanced and objective look at what happened.

What seems to have happened is that thousands of Tasmanian voters were disenfranchised. The votes, particularly in the Legislative Council elections, do not necessarily reflect the will of all the eligible voters in those Legislative Council divisions, given the number who may not have voted on that day because either they did not know they had to vote on that day or they were unable to vote on that day because of the logistical constraints that inevitably happen when the Tasmanian Electoral Commission is trying to run a statewide election campaign and two Legislative Council campaigns.

I take this opportunity to genuinely and warmly thank the Tasmanian Electoral Commission and Commissioner Andrew Hawkey for the outstanding work that they do. There is a huge amount of public trust in the Tasmanian Electoral Commission and rightly so. It has been earned.

We should not put the TEC in this position where they are having to basically run three elections on one Saturday in May. It was entirely within the Premier's capacity to either call the election a week earlier or a week after 1 May, which had been locked in as the Legislative Council election dates. But he made a wilful choice to have the state election on the same day as the Legislative Council elections.

I will talk a little about the report of Paper 1 of Tasmania's Electoral Act Offences and Campaign Conduct. For context, this is the paper that is the result of the aborted Operation Hyperion. The Integrity Commission was asked to examine some matters surrounding the 2018 election campaign. Over the course of two years, it ended up pulling the pin on the Operation Hyperion campaign. In this story by investigative reporter Emily Baker, which details the Integrity Commission's decision, she said:

A two-year probe into funding promised during the 2018 Tasmanian election was dropped by the state's integrity watchdog in April after a legal argument with the Liberal Party over the inquiry's direction.

She writes:

The 2018 campaign was defined by claims of undue influence from the powerful gaming lobby, hidden political donations and questions over a huge increase in the Liberals' smaller-scale promises to regional community groups, such as halls, churches and sporting clubs.

The ABC can reveal the Integrity Commission launched an investigation after a Tasmania Police inquiry into allegations of possibly bribery or treating by an unknown candidate.

While police found the Electoral Act had not been breached, the Integrity Commission initiated its own inquiry into the election in early 2019 after meeting with police, the Tasmanian Electoral Commission (TEC) and the Director of Public Prosecutions (DPP).

Part of a draft report from Operation Hyperion - obtained by the ABC - shows that the Integrity Commission investigated possible misconduct in the awarding of funding to community groups and the TEC's policies and processes in dealing with alleged corruption.

The investigation found no evidence of misconduct before it was canned.

Integrity Commission chief commissioner Greg Melick said 'relevant parties' were given excerpts of the draft report for comment in July last year.

The board obtained independent legal advice on particular points of law and the extent of the investigation in relation to its terms of reference and concluded that the investigation could not be finalised under the existing terms of reference.

That to me, first of all, says that potentially some pressure was put on the Integrity Commission not to finalise that investigation. Whether that pressure was overt or covert, we will probably never know. It also says something to me about the Integrity Commission's willingness to take on some of the big fights sometimes. If it cannot be there to investigate conduct during election campaigns then why is there? This is one of the most critical components of a healthy democracy, how elections are run and won, and they need to be clean.

There is plenty of evidence to suggest - and this goes back many years because both the major parties here are culpable - plenty of evidence to suggest Tasmanian state elections are not always clean.

There is the influence of corporate donations and other dark money but there is also what the Integrity Commission describes as indirect electoral bribery where you see, particularly the Liberals have made an art form of it but I know Labor did it too. You see ministers and elected MPs of government going around to all sorts of community organisations, sporting groups that are strapped for cash and need money, and promising them cash in the leadup to a campaign in the hope of securing their votes.

We have seen the consequence of that where a number of organisations that have received money have advocated for the election of a Liberal government, for example. We all remember the 280 community groups that received about $10 million in funding from the state's coffers in the 2017 18 financial year with the Liberals' commitments ranging from $2000 to $900 000 of public money.

One of the other things that Mr Melick said to the ABC is that the Integrity Commissioner had considered changing Operation Hyperion's terms of reference so the inquiry could continue but decided against doing so. I quote directly from his statement to the ABC:

Ultimately, the board decided that it would not be in the public interest to commit further resources to reinvestigate the matter, noting that to that stage no misconduct had been identified.

I take issue, with respect, to that statement. It is always in the public interest to investigate the conduct of elections in a democracy, always. We have never really got to the bottom of this situation. The consequence of it has been that the Integrity Commission has now issued a paper about ethical conduct and potential misconduct risks in Tasmanian parliamentary elections and it is part of a research series and I am very glad to see that.

In its conclusion, the commission which examines questions of where is the line drawn between outright electoral bribery and corruption, indirect electoral bribery, campaigning, and legitimate policy promises or pledges? It is a really interesting question that we should turn our minds to - where is that line drawn? The Integrity Commission in its conclusion - and I will wind up with this - it says (TBC):

It is not currently possible for the Tasmanian Electoral Commission to adequately investigate or enforce compliance with the corrupt practices provisions in the Tasmanian Electoral Act. Furthermore, the division in that act between illegal practices and corrupt practices is illogical and confusing. The Tasmanian Electoral Act contains systemic requirements to ensure free and fair elections in Tasmania. Its importance cannot and should not be denied.

Under its legislation the TEC theoretically has the power to investigate corrupt practices. However, in practice the TEC has been hamstrung by a lack of specific powers and resources. This may now have been remedied with the drafting of the Electoral Matters (Miscellaneous Amendments) Bill 2021. Indirect electoral bribery, like traditional electoral bribery, is a serious issue that may threaten our democratic system but it is not currently regulated and it is rarely illegal. Whether and how this kind of conduct should be regulated or even made contrary to law is for the Tasmanian people and Parliament to decide.

Regrettably, given that it has been a longstanding practice of both parties to run around the electorate and promise cash prizes, large and small, to various interest groups, I cannot see that parliament will take this on. So here is our amendment. I did not have the time to write up copies of it but the House should take an interest in this.

We do not want it to happen again, that the people of Tasmania are disenfranchised at an election. It is not healthy for democracy; it is not fair because every voter has the right to cast their vote and be a participant in democracy. The House should support this motion which has come down from the Legislative Council and brought forward for debate by Ms Johnston. That would be the right thing for us to do, to have a look at this and make sure that never again are we potentially disenfranchising thousands of Tasmanian voters.