Bills Digest No.
34, 2021–22
PDF version [676KB]
Dr Damon Muller
Politics and Public Administration Section
23
November 2021
Contents
The Bills Digest at a glance
Purpose of
the Bills
Structure of
the Bills
Background
Committee
consideration
Policy
position of non-government parties/independents
Position of
major interest groups
Financial
implications
Statement of
Compatibility with Human Rights
Key issues
and provisions
Other
provisions
Concluding
comments
Date introduced: 28
October 2021
House: House of
Representatives
Portfolio: Special
Minister of State
Commencement: Schedule
1 of the Electoral Legislation Amendment (Assurance of Senate Counting) Bill
2021, and all provisions of the Electoral Legislation Amendment (Contingency Measures)
Bill 2021, commence the day after Royal Assent. Schedule 2 of the Electoral
Legislation Amendment (Assurance of Senate Counting) Bill 2021 commences on 1
January 2023. The Electoral Legislation Amendment (Voter Integrity) Bill 2021 commences
on the later of the day after Royal Assent and 1 January 2022
Links: The links to the Bills,
Explanatory Memoranda and second reading speeches can be found on the home pages
for the Electoral
Legislation Amendment (Voter Integrity) Bill 2021, the Electoral
Legislation Amendment (Contingency Measures) Bill 2021, and the Electoral
Legislation Amendment (Assurance of Senate Counting) Bill 2021, or through the
Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the Federal
Register of Legislation website.
All hyperlinks in this Bills Digest are correct as at
November 2021.
The Bills Digest at a glance
The Bills Digest examines the issues
and provisions in three Bills that propose to amend the Commonwealth
Electoral Act 1918 (and the Referendum (Machinery Provisions) Act 1984).
The key features that are discussed in this Bills Digest in each of the Bills
are discussed below.
Electoral
Legislation Amendment (Voter Integrity) Bill 2021 (Voter Integrity Bill):
- creates a list of allowable forms of voter identification
-
imposes a requirement for election day and pre-poll voters to
establish their identity before casting a vote with either one of the
aforementioned allowable forms of identification, or by having another voter
(with more limited required forms of identification) attest to the identity of
the voter and
- provides that voters who are not able to establish their identity
be able to cast a provisional vote.
Electoral
Legislation Amendment (Contingency Measures) Bill 2021 (Contingency Measures
Bill):
- in the event of an emergency allows the Electoral Commissioner to
expand the time for, and allowable reasons for, early voting
- empowers the Electoral Commissioner to allow campaigning and
soliciting of votes to continue during an emergency and
- implements some minor changes to the requirements for the format
of postal votes.
Electoral
Legislation Amendment (Assurance of Senate Counting) Bill 2021 (Assurance of
Senate Counting Bill):
- would require a security assessment of the Australian Electoral
Commission’s Senate counting system to be undertaken and, following the next
election, an assurance process for its software system to ensure that it is
undertaking the count accurately
- provides a requirement to undertake a check of a statistically
significant sample of the Senate ballot papers to ensure the accuracy of a
count during an election and
- provides for some minor changes to the process of counting the
Senate vote in the event of a tied result at certain points in the count.
Purpose of
the Bills
The purpose of the Bills is to amend the Commonwealth
Electoral Act 1918 (the Act) to implement select recommendations of the
Joint Standing Committee on Electoral Matters (JSCEM) from its inquiry into the
2019 federal election and from its inquiry into elections during emergencies.[1]
These changes are, in essence, to require voters to present identification when
voting in person on election day and at pre-poll voting (and also amend the Referendum
(Machinery Provisions) Act 1984 with similar changes), and to
allow the Electoral Commission to issue a legislative instrument to amend the
operation of the Act in certain ways to facilitate polling under emergency
conditions. In addition, the Bills would require a system of security and
counting accuracy assurance in relation to the Australian Electoral
Commission’s (AEC) Senate vote counting system. The Bills also contain a range
of other minor provisions and consequential amendments.
Structure of
the Bills
The Voter Integrity Bill has one Schedule, roughly half of
which is to amend the Act and the other half which has essentially identical
amendments to the equivalent polling provisions of the Referendum (Machinery
Provisions) Act 1984. All provisions of the Bill would come into effect the
later of the day after Royal Assent and 1 January 2022, meaning that if passed
during the current sitting of Parliament it would come into effect before the
next federal election.
The Contingency Measures Bill has one schedule and four
parts. The first two parts relate to providing increased flexibility around elections
during a time of an emergency. The third part makes some minor changes to how
postal voting operates, and the fourth part notes that the provisions of the
Bill will apply if the writs for an election are issued after the commencement
of the Bill. All provisions of the Bill would commence the day after Royal
Assent.
The Assurance of Senate Counting Bill has two schedules.
The provisions of Schedule 1 relate to assurance of security of the Senate
counting system and implement a number of minor changes to the Senate counting
process. These provisions would commence the day after Royal Assent. The
provisions of Schedule 2 relate to assurance of the accuracy of the Senate
counting system and would commence on 1 January 2023.
At the time of publication the requirements of the Act in
relation to election timing dictate that a half-Senate election is required
before the end of May 2022, and therefore it is likely that a general election
will also happen between the start of 2022 and the end of May 2022.[2]
As such, if the Bills as presented pass before the next election is called, all
of the measures of the Voter Integrity Bill and the Contingency Measures Bill
will be in effect before the next federal election, and the security provisions
and changes to the counting process for the Senate voting system will be in
effect for that election, but the Schedule 2 provisions, relating to counting
accuracy, of the Assurance of Senate Counting Bill will not yet have commenced.
Background
The three Bills cover a range of issues, including the
integrity of the AEC’s computer systems for counting votes, the operation of
elections during emergencies such as a pandemic or bushfire, and voter
identification requirements. These issues are addressed in turn below.
Integrity of the AEC’s systems
On 1 September 2021, One Nation Senator Malcolm Roberts
introduced a private senator’s Bill, the Commonwealth
Electoral Amendment (Integrity of Elections) Bill 2021.[3]
The Bill would have implemented a system of auditing the AEC’s computer
systems, both for accuracy and for unauthorised access, and implemented a
requirement to show identification to vote at Australian federal elections.
The concept of ‘integrity’ in relation to elections is
complex and multi-faceted. It ranges from ensuring that a person is entitled to
be enrolled and that they are enrolled at their correct address, that only
entitled voters cast a vote and none of those electors vote more than once,
that the votes are counted accurately and that the results that are declared
are a true representation of the votes. Errors or inaccuracies that affect
integrity may occur deliberately or accidently and elections have multiple
systems and process to mitigate against these affecting the result. Senator
Roberts’s Bill aimed to introduce measures to mitigate against perceived
integrity issues such as multiple voting and voter impersonation, and vote
counting accuracy due to errors or cyber intrusions.
In the second reading debate for Senator Roberts’s Bill,
Senator James McGrath, chair of the JSCEM, expressed his support for the voter
identification provisions in the Bill. Senator McGrath stated:
Senator Roberts, I strongly agree with you, in particular, in
relation to the requirement for voter ID, a recommendation that the JSCEM made
after the 2013, 2016 and 2019 elections. Indeed, as chair of the committee
after the 2016 and 2019 elections, I personally made sure that that
recommendation was there. We do need voter ID in Australia. Most Australians
find it slightly bizarre that to get into a surf club or bowls club they are
required to show ID but in order to exercise that most important civic duty of
voting no ID is required.[4]
Senator Roberts’s Bill was referred by the Senate to the
Senate Finance and Public Administration Legislation Committee for inquiry and
report by 14 October 2021.[5]
Senator Roberts’s Bill covers much of the same ground as the Assurance of
Senate Counting Bill, and the inquiry and various events which led up to the
inquiry provide useful background information for the provisions of this Bill.
In its report on the Bill, the Committee noted that
submissions to the inquiry were generally not supportive of the two aims of the
Bill: auditing and voter identification. The Committee recommended against the
passage of the Bill, noting:
The principle and stated aims of this Bill are to provide
additional integrity and transparency for Australian electoral events through
both the adoption of both voter identification, and additional assurance
processes for Senate elections conducted utilising a computerised count. The
committee notes that this reflects the general principles of the
recommendations of JSCEM in their reports into the 2016 and 2019 elections.
JSCEM, as the key parliamentary committee with oversight of electoral laws, has
previously considered these issues in detail and recommended the adoption of such
measures in‑principle. However, the committee has concerns regarding this
bill with respect to the implementation of these aims.[6]
In additional comments to the Committee’s report, the
Labor and Greens members provided further opposition to the voter identification
provisions of the Bill, noting that there was no evidence of significant voter
fraud in Australia that would justify such laws and that voter identification
laws risked disenfranchising vulnerable electors. In his comments in the report
Senator Roberts noted that the AEC had not made a submission to the inquiry.[7]
Voter identification will be discussed in more detail
below; however, it is worth noting here Schedule 1 of Senator Roberts’s Bill,
which required the Auditor-General to conduct audits of technology used by the
AEC. Specifically, proposed subsection 286AB(3) provided:
Without limiting the content of the audits, the
Auditor-General must determine whether the use of authorised technology:
(a) produces the same result as would be obtained
without the use of authorised technology; or
(b) if it is used to store information—replicates the
information that would be stored without the use of authorised technology.
As stated in the Explanatory Memorandum to Senator
Roberts’s Bill:
The audit provided for in this bill is restricted to
electronic measures, and tests whether the use of authorised technology
produces the same result as would be obtained without the use of authorised
technology.
Put simply this is asking the Auditor-General to ensure that
the use of computerised voter rolls, tallying and preference allocations
produced a result that accurately reflects the will of the people expressed in
that election.[8]
As the only ‘technology’ that is used for ‘tallying and
preference allocations’ is the system for scanning and counting Senate ballot
papers, the Bill would essentially require that the AEC’s Senate ballot
scanning system was audited to ensure it was producing an accurate result.
In a submission to the inquiry into Senator Roberts’s Bill,
cybersecurity expert Associate Professor Vanessa Teague, although not
supporting the specific wording of Senator Roberts’s Bill, agreed that some
form of additional validation of Senate results was necessary. Professor Teague
argued that while it is possible to check the calculation of the election
result using the ballot paper preferences published by the AEC, it was not
possible to check that the published preferences were an accurate record of all
ballot papers. Teague noted that a post-election audit, in the presence of
scrutineers, would be able to verify the results and assess the error rate of
the scanning. Teague also noted that while the ‘AEC engages trusted third
parties to examine and test the system’, it was ‘exceedingly difficult to
elicit meaningful information about any of these audits’.[9]
In its submission to the inquiry into Senator Roberts’s
Bill the Australian National Audit Office (ANAO) noted that it is already
empowered to undertake reviews of the operation of the AEC. However, it further
stated that ‘the ANAO foresees challenges in testing whether the use of
authorised technology produces the same result as would be obtained without the
use of authorised technology, in the absence of a manual process to test
against or a framework of procedures set down to undertake the testing.’[10]
The ANAO had previously had occasion to comment on the
Senate ballot paper scanning system. In an audit report that examined various
aspects of the Senate counting process published in January 2018 the ANAO
recommended:
When the Australian Electoral Commission uses computer
assisted scrutiny in future federal electoral events, the integrity of the data
is verified and the findings of the verification activities are reported.[11]
The AEC gave qualified agreement to the recommendation and
stated:
The AEC remains confident that the range of measures put in
place for the 2016 federal election ensured the integrity of the Senate count.
For future events, the AEC will continue to evaluate and if appropriate,
implement additional verification mechanisms to maintain the integrity of the
count. The results of verification activities undertaken at future electoral
events may be reported in support of the scrutineering process.[12]
In its report the ANAO described the Senate scanning
system as it operated for the 2016 federal election (the first election at
which the AEC had used the system):
The Senate scanning system was delivered as per the
contractual requirements. Senate scanning centres were established in each
State/Territory for the arrival of the first ballot papers on
4 July 2016. The eight centres operated up to 24 hours per day for up
to seven days per week. They included more than 61 scanners with custom
manufactured trays to accommodate metre-long ballot papers, 540 data entry
stations and around 1800 temporary employees. All 14.4 million Senate
ballot papers were processed and 101.5 million preferences were verified
by 3 August 2016, which was in time for the Return of the Writ on
8 August 2016.[13]
The ANAO in its report raised questions about the
determination of formality for some ballot papers from the system.[14]
It also noted that the new system was less accessible to scrutineers and that
scrutineers had very little time to evaluate any ballot paper. However, the
ANAO did not generally dispute that the Senate scanning system produced an
accurate and valid election outcome.[15]
In relation to the integrity of the Senate scanning data,
in response to questions in Senate Estimates in May 2021 from Senator Roberts,
the Electoral Commission stated:
We use a piece of software that's been tested and assured on
multiple occasions. At the same time, all of the data that this software
produces is then publicly published on our virtual tally room on our website,
which, on election day, is one of the most used pages in Australia. That data
is then used by a variety of psephologists and political science experts to
replicate those results. It's intensely public. If you're trying to indicate
there's some sort of issue, I don't understand why you would do that when
there's been no evidence of that at all.[16]
Additionally, the AEC in one of its submissions to the
JSCEM inquiry into the 2019 federal election stated that the estimated error
rate for the Senate scanning process was 0.65 per cent, which compared to the
typical hand count error rate of 2 per cent.[17]
As noted above the AEC did not provide a submission to the inquiry into Senator
Roberts’s Bill.
Elections during a pandemic or
other emergency
On 22 September 2020 the Minister for Finance asked the
JSCEM to inquire into ‘the future conduct of elections operating during times
of emergency situations’.[18]
While this was obviously in the context of the COVID-19 pandemic, it also
followed other natural disasters such as the widespread bushfires that occurred
at the beginning of 2020. In its report, the Committee made three
recommendations:
Recommendation 1
The Committee recommends that the Commonwealth Electoral Act
1918 be amended to grant the authority to the Electoral Commissioner, in the
event of an emergency being declared by Commonwealth, state or territory law,
and to facilitate the safe conduct of an electoral event, to:
• extend the reasons electors can vote by post or pre-poll;
• streamline application and/or declaration requirements for
postal and pre-poll voting;
• extend operating or polling hours (pre-poll only);
• conduct scrutiny safely.
This authority must:
• be limited to circumstances in which all alternative
avenues to conduct an electoral event without exercising emergency provisions
have been deliberated and exhausted;
• be limited to the extent necessary to conduct an electoral
event;
• be limited to the geographical area in which the emergency
situation has been declared, noting that this may only be part of an
electorate;
• be exercised by the Electoral Commissioner and cannot be
delegated;
• be time limited only to the time necessary to respond to
the emergency situation and conduct the electoral event.
To maintain transparency the Electoral Commissioner must, as
soon as practicable:
• publish the decision to modify the electoral event and the
modifications to be made; and
• inform the Joint Standing Committee on Electoral Matters of
actions taken.
Recommendation 2
The Committee recommends that the Commonwealth Electoral Act
1918 be amended to provide conditions to change the date of polling where an
emergency situation prevents voting occurring on the date fixed for polling.
Recommendation 3
The Committee recommends that sections 240A to 243 of the
Commonwealth Electoral Act 1918 be reviewed to ensure that they are in line
with the recommendations set out in this report.[19]
The Committee noted that there had been a number of
successful electoral events undertaken in Australia since the COVID-19 pandemic
commenced. It noted that each of the events were responded to as dictated by
the specific circumstances in which they were held, but that they had common features
such as training staff in COVID-safe approaches, using additional personal
protective equipment (PPE), social distancing, use of hand sanitiser and
observing venue capacity limits. It also noted that these electoral events
tended to include additional pre-poll centres and expanded pre-poll voting
hours to help with physical distancing and tended to feature increases in
pre-poll and postal voting.
The AEC provided a detailed submission to the inquiry,
including its own recommendations. In its submission the AEC drew on its
experience of having run the Eden-Monaro by-election during the COVID-19
pandemic. It estimated that the additional measures approximately doubled the
cost of the by-election, from around $2 million to almost $4 million. It noted that
the rate of postal voting was almost double what the electorate had seen in the
most recent federal election, but that there had only been a moderate increase
in pre-poll votes. The AEC also noted that the process of issuing and counting
votes took longer at the by-election. Building models for queue times on those
observed increases, the AEC estimated that a federal election under similar
conditions would require around 30 per cent more staff to keep queue times
reasonable, which would constitute an additional $13 million cost for the
election.[20]
The AEC recommended that the Parliament consider granting
it greater flexibility during emergency situations. It suggested that the
Committee consider changes in relation to the reasons electors can pre-poll and
postal vote, to conduct an election solely by postal vote, expand the
categories of electors that can use telephone voting (currently restricted to
electors who are blind or have low vision and electors in Antarctica),
extending polling hours, and allowing the AEC to conduct the scrutiny (count)
more safely.[21]
The Committee generally agreed with the AEC, and added the condition that the
AEC inform the Committee of the actions taken, as reflected in Recommendation
1.[22]
Voter identification
The Foreword to the JSCEM report into the 2019 federal
election noted that it was time for the electoral system to be ‘fine-tuned’. To
that effect, the Foreword argued that, among other measures, Australia should
switch to optional preferential voting, should adopt Robson Rotation for House
of Representatives ballot papers, and all voters should be required to show
identification to vote.[23]
Recommendation 21 of the report states:
The Committee recommends that, as per its recommendation in
the 2016 report, the Commonwealth Electoral Act 1918 and the Referendum
(Machinery Provisions) Act 1984 be amended to require that:
• voters must present a form of acceptable identification to
be issued with an ordinary pre-poll or election day vote. Authorised
identification must be suitably broad so as to not actively prevent electors
from casting an ordinary ballot. Examples of acceptable identification would
include:
− photographic ID such as a drivers licence,
passport, or proof of age card;
− government-issued identification card, such
as a Medicare card, senior’s card of concession card;
− proof of address, such as an account from a
utilities provider, taxation notice of assessment or Australian Electoral
Commission issued voter registration letter; or − where voters cannot
provide acceptable identification they must be issued with a declaration vote.
− with exceptions included for itinerant,
remote Indigenous voters, and other disadvantaged persons, for instance
enabling a local Health or Welfare service to vouch for the identity of a
person.[24]
The committee devoted seven paragraphs of the 164-page
report to the topic of voter identification and multiple voting, however it
noted:
Voter identification requirements have been proposed as a solution
to electors voting multiple times. The AEC gave evidence to the committee that
the level of apparent multiple voting for the House of Representatives was just
0.03%, reflecting that multiple voting is:
… by and large a very small
problem … where there are individuals with multiple, multiple marks—more than
one—quite often there are other factors at play, including mental health
issues, that make it very difficult to move forward with a prosecution in any
case.[25]
The Committee noted that it had previously explored the
topic of voter identification in its report into the 2016 federal election. It
had done so in its 2016 report as Recommendation 12:
The Committee recommends that the Commonwealth Electoral
Act 1918 and the Referendum (Machinery Provisions) Act 1984 be
amended to require that:
• voters must present a form of acceptable identification to
be issued with an ordinary pre-poll or election day vote. Authorised
identification must be suitably broad so as to not actively prevent electors
from casting an ordinary ballot. Examples of acceptable identification would
include:
− photographic ID such as a
drivers licence, passport, or proof of age card;
− government-issued
identification card, such as a Medicare card, senior’s card of concession card;
− proof of address, such as
an account from a utilities provider, taxation notice of assessment or
Australian Electoral Commission issued voter registration letter; or
− alternatively, a ‘voter
ID’ card be introduced and issued to all voters.
• where voters cannot provide acceptable identification they
must be issued with a declaration vote. [26]
In the 2016 election report the Committee spent 10
paragraphs discussing voter identification requirements, discussing at length
the report of the JSCEM inquiry into the 2013 federal election and noting that
‘it remains convinced by the arguments put forward by its predecessor of the
need to introduce voter identification’.[27]
The Committee noted in the 2016 election report that the expanded use of
Electronic Certified Lists (ECLs; discussed in more detail below)
was important to realising voter identification.
Recommendation 17 of the report of the JSCEM’s inquiry
into the 2013 federal election was:
The Committee recommends that the Commonwealth Electoral
Act 1918 and the Referendum (Machinery Provisions) Act 1984 be
amended to introduce the requirement that:
• voters must present a form of acceptable identification to
be issued with an ordinary pre-poll or election day vote. Acceptable identification
should be defined as those acceptable at the 2015 Queensland state election (or
the closest federal equivalent);
• where voters cannot provide acceptable identification they
must be issued with a declaration vote; and
• these declaration votes will be checked at preliminary
scrutiny to ensure that the claimed enrolled address matches the electoral
roll. If not, then the vote should be rejected.
The Committee also recommends that the Australian Electoral
Commission be appropriately resourced to enable this change to be made prior to
the next federal election and for a suitable education campaign to be
undertaken to inform voters of the new requirements.[28]
The 2013 JSCEM report did provide a relatively detailed
discussion of the topic of voter identification and multiple voting. The report
was delivered less than 12 months after Queensland’s (what turned out to be a
single-election) experience of voter identification requirements, and the
Committee was clearly using the Queensland legislation as a model upon which
its recommendation was based. The Committee noted:
The Electoral Commission Queensland reported that a total of
16 189 uncertain identity votes were issued at the election, comprising 15 759
formal and 430 informal votes. This totalled 0.60 per cent of the 2 679 874
total votes.
This very small proportion of votes cast as uncertain
identity declaration votes indicates that the system introduced impacted on a
very small number of voters. Indeed, the Electoral Commissioner commented at
Senate Estimates in February 2015 that observations made by AEC staff suggested
‘the process ran very smoothly’. These observations have been subsequently
confirmed by the Queensland Electoral Commissioner in feedback provided to the
AEC.[29]
The Committee noted that requiring voter identification at
the federal level would add to the workload of the AEC and that the election
would require additional resources if this were legislated. The Committee
assumed that voter identification requirements would run in conjunction with a
full rollout of ECLs, where networking would allow mark-off data to be
synchronised between polling stations in real time:
ECLs allow for real-time look-up of a person’s enrolment on
an electronic database and electronic mark-off of their name, with the mark-off
being synced to all other networked ECLs when connected by mobile internet.
Most importantly, if a person tries to vote multiple times in
the one name with identification, or multiple times without identification,
then the use of an ECL or the identification requirements, will ensure they are
required to make a declaration vote, with the result that their ballot papers
do not automatically enter the count without verification or investigation.[30]
The Committee presented various arguments for and against
voter identification requirements, but ultimately concluded that the arguments
against were adequately countered:
The three main arguments traditionally prosecuted against the
use of voter identification are:
• voter turnout will be affected;
• voters will be disenfranchised; and
• increased administrative burden.
In the Australian context, these arguments are easily
refuted:
• compulsory voting ensures a high voter turnout;
• declaration votes are provided for voters who fail to
present identification; and
• administrative burden will potentially be lessened by
reduced issuing officer error and fewer occasions of multiple vote checks to be
actioned. [31]
The extent of the multiple voting
problem
University of Sydney political scientist Professor Rodney
Smith produced a report in 2014 for the New South Wales Electoral Commission
about multiple voting and voter identification, and it remains the most
comprehensive treatment of the topic in Australia. Examining the evidence of
multiple voting in Australia, Smith concludes that most apparent multiple
voting is simply errors in electoral roll mark-off data. Apparently genuine
multiple votes are rare, too small in number to determine the winner in any
seat, and are not strategic in that they are not targeted at marginal
electorates (the ones in which they are most likely to affect the results).[32]
Despite the lack of any real evidence of issues with the
integrity of Australian elections, it is true that many Australian voters have
concerns about fraud in Australian elections. At the time of the 2016 federal
election the AEC commissioned the Electoral Integrity Project to conduct a
survey of Australian voters.
Following the election, survey participants were asked how
frequently electoral fraud occurred in Australia. In relation to fraud, 46 per
cent of participants said that it occurred occasionally, 15 per cent
that electoral fraud occurred usually, and 13 per cent that it always occurred.
Participants were also asked how frequently electoral fraud affected electoral
outcomes. Around 40 per cent said electoral fraud was somewhat likely or
extremely likely to affect electoral outcomes. Women, older voters, and voters
with lower levels of education are more likely to believe Australian elections
are affected by fraud.
The authors stated:
Electoral fraud can take many forms, from ballot box stuffing
to vote buying, intimidations, misinformation, and the misrecording or
misreporting of votes. The data do not differentiate between different types of
electoral fraud, so it is not possible to determine what form of fraud people
are most likely to have in mind. Nevertheless, all types of electoral fraud
relate to (voluntary) efforts to manipulate or rig the electoral process. The
fact that one respondent out of four believes that these malpractices are very
common during Australian elections should be a cause for concern.[33]
The JSCEM report into the 2013 federal election the
Committee, in the context of voter identification, also examined the challenges
of prosecuting multiple voting offences.
However, the main challenge related to apparent multiple
voting is the ability of the AEC to gather relevant evidence related to such
activity, as well as the Australian Federal Police (AFP) and Commonwealth
Director of Public Prosecution’s (CDPP) ability to prosecute any referred
instances.
The AEC provided the Committee with a detailed submission in
February 2015 related to the finalised investigations into apparent multiple
voting at the 2013 election.
In summary, this submission stated that:
• there are currently two levels of offence under the
Electoral Act:
⇒
the lesser offence of voting more than once (punishable by a fine); and
⇒
the more serious offence of intentionally voting more than once (punishable by
a higher fine, imprisonment, or both).
• the current interplay between the Electoral Act, the Criminal
Code Act 1995 (Criminal Code), and the Crimes Act 1914 (Crimes Act)
does not provide for adequate time to prosecute the majority of offences of
multiple voting;
• regardless of whether multiple voting influences election
outcomes, any incidence of multiple voting can undermine confidence in the
electoral system;
• the standard of proof to achieve a successful prosecution
is not supported by the evidence created under the current electoral
legislation, identification requirements or polling place surveillance; and
• generally the current system requires referral of
inadequate evidence from the AEC to the AFP and CDPP who cannot prove guilt or
culpability in a court of criminal jurisdiction.53
The ultimate result of investigations by the AEC resulted in
7 743 cases of alleged multiple voting being referred to the AFP—of which 65
were investigated directly, with none being referred to the CDPP for potential
prosecution, due to the reasons stated above.[34]
In its submission to the JSCEM inquiry into the 2019
federal election the AEC noted in relation to multiple votes (emphasis in
original):
The AEC has sent enquiry letters to 2,102 electors who had
multiple marks recorded beside their names at the 2019 election. These are
marks only and may not be the result of multiple voting. Multiple marks
can, in some instances, be the result of administrative error. Replies to the letters
are currently being processed. The AEC will provide further information to
JSCEM as the process continues.
There were no prosecutions for multiple voting following the
2016 federal election. The AEC and AFP provided a joint submission to JSCEM, in
February 2017, in which the difficulties of successfully prosecuting cases of
apparent multiple voting under current legislation were outlined.[35]
Electronic Certified Lists (ECLs)
Electronic Certified Lists (ECLs) are essentially
computers that contain a copy of the electoral roll, which enable voters to be
looked up and marked off in a polling place more quickly and easily than is
possible using traditional paper certified lists.[36]
In relation to ECLs the AEC reported in October 2021 to a Senate Estimates
hearing:
For this federal election we will deploy over 5,000
electronic certified lists. That is an increase on the 2019 election. We will
have some enhanced functionality as part of the certified lists. That has been
driven by internal improvements. As I mentioned, we'll further enhance the
solution as part of the MYEFO funding for the 2024-25 event and increase the
deployment to 10,000 devices.[37]
At the same hearing the AEC noted that if it was to have
ELCs at every vote issuing point it would require around 40,000 devices. The
AEC did, however, note that in the Griffith by-election where only ECLs were
used, ‘it had a big impact on the level of alleged multiple voting’.[38]
It was clarified at the Estimates hearing that ELC voter
mark-off is not necessarily instantaneous, and the devices are subject to a
nightly reconciliation.[39]
However, the AEC noted in its report to the JSCEM inquiry into the 2019 federal
election:
ECLs enabled elector identification and mark-off, and
real-time update of a central copy of the certified list, where network
connectivity was present. This reduced the risk of official error and multiple
voting, and enabled more efficient searching of electors, including by
location.[40]
This suggests that ECLs are capable of networked central
mark-off, however the facility is not always available.
Types of identification held by
Australians
There appears to be no one central source documenting the
types of identification documents held by Australians, or which Australians
have less access to identification that others. Particularly when considering
the breadth of identity documents covered by the Bill, it is difficult to say with
any certainty which Australians might be excluded.
Generally, there is a recognition that not all Australians
are equally likely to have access to common forms of identification. For
example, AUSTRAC
provides the following advice in relation to obtaining identification for
the purpose of enforcing money laundering and fraud prevention measures
(emphasis added):
Some of your customers may not be able to provide the
identity documents you would usually rely on for applicable customer
identification procedures. Without conventional forms of identification it may
be hard for people to access financial services.
For example, they may not have a driver’s licence or a birth
certificate, the information in their identification documents could be out of
date, or there could be conflicting information in different documents. This
might be the case for Aboriginal and Torres Strait Islander customers,
customers who are affected by a natural disaster such as bushfires, transgender
customers, people with limited access to identity documents (such as those who
are experiencing or have experienced family and domestic violence,
people experiencing homelessness or with an address inconsistent with
their identity documents), or customers who have come to Australia as refugees
or other social or cultural circumstances that make it more difficult
for a person to identify themselves or to access conventional identity
documents.
AUSTRAC recommends a flexible approach to identifying and
verifying customers who don’t have conventional ID, while taking into account
your own money laundering/terrorism financing risk profile. For example, you
might use several types of secondary documents to establish a customer’s
identity instead of a primary identification document.[41]
The Australian Government has issued the National
Identity Proofing Guidelines, which are designed to be used by
Commonwealth and state and territory government agencies to manage
identity-related risks associated with identifying a person. The Guidelines
also note certain people who may be unable to meet identity requirements, which
are similar to those noted by AUSTRAC, and that organisations may develop
alternative identity proofing processes for these exceptional cases.[42]
In terms of general trends around identity documents,
reports have suggested that in at least NSW and Victoria, the number of younger
people who apply for driver’s licences is decreasing over time, and the number
of older people with driver’s licences appears to be increasing. In 2016 over a
third of Victorians aged 18 to 24 did not have a driver’s licence, for example,
and in NSW in 2008–09 only around half of those aged 20 to 24 had a driver’s
licence.[43]
A 2017 report into unauthorised access to Medicare numbers
provides some useful information about Medicare cards, another commonly used
form of identification:
At 30 June 2017, 24.9 million individuals were eligible for
Medicare, and there were 14.1 million active Medicare cards. The number of
Medicare cards is lower than the number of eligible persons because Medicare
cards are issued to families, so not every individual has their own Medicare
card. 1.4 million individuals were on two Medicare cards. Situations in which
an individual may be on two cards include:
• Individuals aged 15
years or older who have their own Medicare card but still remain on their
family’s card
• Individuals who
have their own Medicare card but also appear on their spouse or partner’s card
• Children who appear
on the Medicare cards of both parents, if the parents have separate Medicare
cards.
…
Individuals who are not eligible for Medicare include:
• Australian citizens
who have been living overseas for more than five years and cannot provide proof
that they have returned to Australia to live.[44]
The report noted that for some Australians the Medicare
card might be the only form of identity they have available:
For many Australians, the Medicare card plays an essential
role in helping to establish their identity, be it with government or the
private sector. Submissions to the Review noted that, in some cases, the
Medicare card may be the only form of official identification available:
Many of our Aboriginal patients
use their Medicare card as their only form of identification – many do not have
a Drivers’ Licence or a Proof of Identity card. If this was no longer available
for use as a form of identification, this would make access to essential
welfare services extremely difficult for our patients. – National Aboriginal
Community Controlled Health Organisation[45]
Voter disenfranchisement
One of the arguments levelled against requirements for
voter identification is the possibility that it might disenfranchise some
voters, particularly voters who are otherwise marginalised for some reason.
This is a position that is inherently difficult to prove one way or another.
The arguments around voter disenfranchisement have both a
political and a practical angle. For example, United States-based Australian
journalist Jason Wilson wrote in The Guardian that in the United States
(US) voter identification laws intentionally target left-leaning voters for
partisan electoral advantage, rather than any evidence of actual fraud:
The constituencies who vote for Democrats in the greatest
numbers – young people, people of colour, and other groups – are less likely to
have the forms of identification that voter ID laws would require.
Also, ID checks slow the whole process of voting down.
Working people, who already make great efforts to vote on a weekday, are less
likely to be able to afford the additional time away from work. [46]
In Australia, Labor and the Greens have directly related
the proposed laws to those in the US, although the Government has rejected
those comparisons as a scare campaign:[47]
Opposition Leader Anthony Albanese told Parliament the
government was trying to minimise the number of Indigenous voters.
Labor believes the Coalition wants to slow down voting and
dissuade voters from casting ballots, including in seats with high Aboriginal
and Torres Strait Islander populations such as Lingiari in the Northern
Territory and Leichhardt in Queensland.[48]
The evidence of the electoral effects of any differential
disenfranchisement due to voter identification laws is not particularly strong.
Voter identification laws have been the subject of considerable study in the
US, including in terms of its effect on voter turnout which does not apply
directly in the Australian context of compulsory voting.
A meta-analysis (a study that combines multiple studies to
increase the statistical power of the research) published in 2017 found that
there were few high-quality studies of the effects of voter identification laws
in the US. The author, political scientist Benjamin Highton, noted the partisan
framing of voter identification laws in the US:
Despite the rhetoric invoking concerns about fraud and
accessibility, strategic calculations about party advantage appear to underlie
the arguments: As Erikson & Minnite (2009, p. 86) note, “Politicians
clearly see this issue through the lens of party politics and electoral
advantage.” For a variety of reasons (discussed below) voter identification
laws are often considered to lower turnout, and lower turnout is generally
thought to advantage Republicans. More important, the negative turnout effects
are usually believed to be more substantial for members of demographic groups
that are more likely to vote Democratic. As a result, partisan debates about
voter identification laws reflect party competition over election outcomes. [49]
Highton notes that one of the complications with
undertaking this sort of research is that US states that introduced strict
photo identification requirements to vote tended to have lower turnout even
before introducing those laws. He also notes that strict photo identification
laws are relatively new in the US, the first being introduced in Indiana in
2006, and that only four states had them before the 2014 election and ten for
the 2016 elections, and thus the laws have been in place for few elections. He concludes
that the current data suggests that voter identification laws have a negligible
effect on turnout, but that these results may be premature to declare as
definitive.
Despite the differences among these four studies, none
reports an overall turnout effect that exceeds four percentage points, and
therefore the claim that voter identification laws depress turnout to a
substantial degree is difficult to sustain based on existing evidence. There
are at least three plausible explanations for the minimal effects reported in
these studies. First, the true effect may be modest in magnitude. Second, the
modest apparent effects may be short-term effects that will become larger over
time as the mobilizing effect of the anger induced by the media frames wears off
(Valentino & Neuner 2016). However, Dropp (2013) finds that the
demobilizing effects of voter identification laws are generally larger among
registered Democrats than Republicans, which is not consistent with this
explanation. A third possible explanation is that the voter identification law
with the most substantial effects—a strict photo ID requirement—has been in
place in a relatively small number of states for a relatively small number of
elections (Figure 1). There may not yet be enough data from states with this
form of voter identification law to accurately estimate its effects.[50]
Another large study, which was not included in Highton’s
analysis, was published by the US National Bureau of Economic Research in
February 2019. The authors, Cantoni and Pons, used a panel that covered ‘the vast majority of the U.S. voting-eligible population in the 2008, 2010,
2012, 2014, and 2016 general
elections, resulting in a total of about 1.3 billion observations’. Similarly to
Highton, the study found no real effects of the voter identification laws,
either in terms of reducing turnout or preventing actual or perceived fraud:
First, the fears that strict ID requirements would
disenfranchise disadvantaged populations have not materialized. Second,
contrary to the argument used by the Supreme Court in the 2008 case Crawford v. Marion County to
uphold the constitutionality of one of the early strict ID laws, we find no
significant impact on fraud or public confidence in election integrity. This
result weakens the case for adopting such laws in the first place.[51]
The authors note that the results should be interpreted
with caution due to the newness of voter identification laws, and that while
they found that voter identification laws did not decrease participation in the
first or second elections since they were introduced, that did not mean that in
later elections, or with increased enforcement of the laws, participation would
necessarily remain high.
A 2019 media article commenting on the Cantoni and Pons
study noted:
Some caution is still warranted with these research reviews:
Even if these laws have very modest effects — a decrease of 1 to 3 percentage
points in voter turnout — that could still affect close elections. These kinds
of elections are rare, but they can happen, and they can be important. For
example, Democrat Heidi Heitkamp beat her Republican opponent, Rick Berg, by
fewer than 3,000 votes, out of nearly 320,000, in 2012 to become a US senator
for North Dakota.
And every study and review on this topic expresses a need for
more research, indicating that this issue is far from settled.
Still, the overall research so far suggests that voter ID
laws don’t have much, if any, effect on turnout. If true, these laws are not
swinging the great majority of elections.[52]
The overall conclusion of the body of research in this
area is that if strict voter identification laws do affect turnout in US
elections, it has not yet been able to be detected in turnout data.
In Smith’s 2014 report for the NSW Electoral Commission,
he noted that voter identification laws in Australia were particularly likely
to affect certain voters, such as Indigenous voters and homeless voters. He
notes:
Research conducted for this report suggests that members of
some socio--‐‑economic
groups are particularly at risk of exclusion from the ballot if the voter
identification laws were tightened. These groups are similar to those
identified as at risk in other jurisdictions.
Indigenous citizens are one group with an elevated risk of
insufficient identification due to their patterns of literacy, debt, housing
and mobility (Biddle and Prout 2009; Biddle and Yap 2010: Chapter 7; Skinner
and Rumble 2012; Aubrey‑Poiner
and Davis interview). About 44 percent of Aboriginal adults living in urban
areas of New South Wales have never held a driver’s licence, for example, and
only 38 percent are current licence holders (Skinner and Rumble 2012: 3).
Homeless people, including an estimated 2,000 to 3,000 rough
sleepers and an ‘unknown number’ escaping domestic violence (Hughes interview),
could also be at particular risk of exclusion from the ballot, depending on the
details of any new identification processes. According to advocacy groups,
identification measures would also present barriers to people with disabilities
(Regan interview) and members of non‑English
speaking groups.
It is possible that older citizens would also be less likely
than younger citizens to possess relevant forms of identification, either
because they have never acquired them or have given them up (when, for example,
they stop driving). It is impossible to quantify precisely the number of
individuals who would be adversely affected by the introduction of voter
identification laws in New South Wales, partly because the exact impact would
depend on the detail of any new identification regime. Given that the best
evidence is that a few thousand multiple votes are cast in New South Wales, the
potential that identification measures will disenfranchise the same or larger
numbers of New South Wales citizens needs serious consideration before they are
introduced. [53]
Queensland academics Graeme Orr and Tracey Arklay examined
the 2015 Queensland state election where voter identification laws were used
and noted that the record-keeping by the Electoral Commission of Queensland
made it difficult to determine whether any particular groups were more likely
to be required to cast declaration votes due to lack of identification. Noting
the limitations of their data, the authors state:
The results demonstrate a significant relationship between
ID-less voters and Indigenous population (r = .650, p < .001), such that
the percentage of uncertain ID voters increases with an increase in a seat's
Indigenous population. The relationship between population density and
uncertain ID voters was also significant (r = -.353, p =
.001), with fewer ID-less voters in regions with higher population density.
Relationships with income or median age were non-significant. This may not
disprove a relationship between age, but merely be an artefact of the tendency
for seats, as opposed to sub-districts, to not vary significantly by average
age.
In relation to non-English
speakers, especially newer immigrants who might otherwise be assumed to have
greater problems with either producing ID or knowing of its requirement, any
such effect may have been outweighed by their relative urbanity. The values (p = .07 and .09) are close to significant, indicating some
relationship between NESB status and ID problems, but only a more fine grained
analysis within electoral
sub-districts could clarify that. [54]
That is, they found that as an electoral district had a
greater proportion of Indigenous voters, it tended to have a higher level of
voters required to cast declaration votes due to lack of identification. The
same was true for more sparsely populated areas (regional and rural areas), and
areas with higher proportions of non-English speakers (although this last was
not to a statistically significant extent). They note that the top ten seats in
terms of voters without acceptable identification were ‘larger, more remote and
more Indigenous electorates’.[55]
Compulsory voting and other
international comparisons
Voter identification laws are the norm internationally.
Australia and New Zealand do not require identification to vote, nor did most
of the United Kingdom (UK), although that is changing, however most other
countries do.[56]
In his 2014 report, Professor Rodney Smith looked at 127
countries and identified eight that did not require voter identification (with
some countries requiring it for some but not for every voter), and a clear trend
towards voter identification requirements. He notes that many of the countries
that require identification to vote issue all citizens a national
identification card, which is then required to vote.[57]
A more recent paper looked at requirements for
government-issued photo identification to vote in European and Organisation for
Economic Co-operation and Development (OECD) countries specifically. The paper
reports that 46 of the 47 countries in Europe (with the exception being the UK,
except in Northern Ireland) require government-issued photo identification to
vote, and 89 per cent of the 37-member OECD require government-issued photo
identification to vote.[58]
There are many unusual features about Australia’s federal
electoral system, including compulsory voting, but while Australia is unusual
in that it has compulsory voting, it is not unique. Of the small number of
countries that have (and enforce) compulsory voting, most also require voter
identification (see Table 1).
Table 1: Voter identification
requirements in countries that have compulsory voting
| Country |
Enforced Compulsory
voting |
Voter ID Required
(Source) |
| Argentina |
Yes |
Yes (Smith 2014) |
| Australia |
Yes |
No |
| Belgium |
Yes |
Yes (Lott 2021) |
| Bolivia |
Yes |
Yes (Smith 2014) |
| Brazil |
Yes |
Yes (Lott 2021) |
| Ecuador |
Yes |
Yes (Smith 2014) |
| Liechtenstein |
Yes |
Yes (Smith 2014) |
| Luxembourg |
Yes |
Yes (Lott 2021) |
| Nauru |
Yes |
Yes (Nauru Electoral Commission) |
| Peru |
Yes |
Yes (Smith 2014) |
| Samoa |
Yes |
No (Smith 2014) |
| Singapore |
Yes |
Yes (Smith 2014) |
| Turkey |
Yes |
Yes (Lott 2021) |
| Uruguay |
Yes |
Yes (Smith 2014) |
Note: Information on compulsory voting has been taken from the
International Institute for Democracy and Electoral Assistance (International IDEA)
and only includes those countries that have laws for compulsory voting for all
or most adults, and enforce those laws—that is, countries that are roughly
comparable to Australia. The table also lists the source of the information
that the country has voter ID.
It is fair to conclude then, in terms of developed
countries, all countries, or only countries with compulsory voting, Australia
is an outlier in not requiring voter identification, even in terms of
English-speaking Westminster countries, with voter identification requirements
existing in Canada and being introduced in the UK.[59]
Committee
consideration
At the time of publication the Bills had not been referred
to any committee, although the Voter Integrity Bill had been examined by the
Parliamentary Joint Committee on Human Rights, and that Committee’s comments
are discussed in a later section, below.
Provisions of some of the Bills are responses to
recommendations from various past committees or have been discussed in
Committee inquiries into similar bills. These specific examples of past
committee discussions are detailed in the Background section of this Bills
Digest.
Senate Standing Committee for the
Scrutiny of Bills
At the time of publication the Bills had not been
considered by the Senate Standing Committee for the Scrutiny of Bills.
Policy
position of non-government parties/independents
Labor has in public statements opposed the voter
identification provisions of the Voter Integrity Bill. Labor Indigenous Affairs
spokeswoman Linda Burney (Barton, NSW) stated:
I think it does have racial overtones to it, but it’s going
to disadvantage everybody. Lines around voting booths are going to be slower
and longer because everyone has to produce ID. It is just not necessary. In
Australia there is not a problem.[60]
Labor Senator Pat Dodson (WA), stated in a tweet:
Morrison's Voter ID bill is a cynical and racist attack on
Australia's democracy. It will make it harder for all Australians to vote and
it will further disenfranchise First Nations voters, who are already enrolled
at far lower numbers. Just how low can this Government stoop?[61]
Labor’s responsible shadow, Shadow Special Minister of
State Senator Don Farrell (SA), has opposed the voter identification provisions
in numerous public forums. For example, in a press release, he stated:
Scott Morrison’s planned voter suppression laws are the
latest move in his concerning trend of mimicking the worst parts of American
politics.
…
Now, Scott Morrison is trying to introduce US-style voter
suppression laws to Australia. Australia doesn’t need these anti-democratic,
Trumpian laws, which would deliberately cause queues around the block, and long
wait times on election day.
These laws, requiring every Australian to prove their
identity despite already being enrolled to vote, are completely unnecessary
with absolutely no evidence of voter fraud in Australia.[62]
Senator Farrell has additionally highlighted the
inappropriateness of introducing laws that would create further delays and
queuing in an election where social distancing and QR codes are likely to be
required due to the COVID-19 pandemic, and the problem of training polling
staff in the short time before the election:
There'll be, already, long queues. There's about 100,000
people that have to be trained up between now and the next federal election,
which is months, perhaps only weeks away. There's no way that the Australian
Electoral Commission is going to be able to get those people trained up in time
to work out what to do with all these various forms of identity.[63]
Cross-bench Senator Rex Patrick (Independent, SA) has,
according to media reports, called on fellow cross-bench senators Jacqui Lambie
(Jacqui Lambie Network, Tas.) and Stirling Griff (Centre Alliance, SA) to
oppose the Voter Integrity Bill. According to the same report Senator Lambie
had questioned the urgency of the voter identification provisions in the
context of the Government’s progress on a federal anti-corruption commission.[64]
Other reports suggest Centre Alliance members Rebecca Sharkie (Mayo) and
Senator Stirling Griff (SA) do not yet have a final position on the Bill.[65]
Media reports indicate that One Nation Senator Pauline
Hanson (Qld) supports the voter identification requirements,[66]
however more recent reports indicate that One Nation will vote against the
Voter Integrity Bill in the Senate unless the Government takes action to oppose
COVID‑19 vaccination mandates.[67]
Senator Hanson has been reported in the media as having claimed credit for the
Government introducing the Bill, ‘saying she made voter identification a
condition for her support on another [unspecified] electoral bill’.[68]
Several media reports have indicated that the Greens
‘hate’ the voter identification provisions, however they do not appear to have
issued a media release or made a statement in the Parliament to that effect at
the time of publication.[69]
Katter's Australian Party member Bob Katter (Kennedy, Qld)
has spoken against the voter identification provisions on the grounds of the
laws disenfranchising Indigenous voters, stating that it is 'blatantly racist
and will prevent [First] Australians living in the community areas from
voting'.[70]
The provisions of the other two Bills have not attracted
any public comments.
Position of
major interest groups
Outside the Government, the voter identification
provisions have found little support from academics and commentators. Legal
academic Dr Dani Larkin, in relation to Indigenous voters, notes the low
enrolment rate among Indigenous Australians and states that voter
identification laws would create an additional barrier to Indigenous people
exercising their franchise.[71]
Queensland academic and electoral law expert Professor
Graeme Orr notes that voter identification laws will increase the time and cost
of elections and notes the discrepancy between the laws for in-person votes and
postal voters (the latter do not require identification). While he believes the
law is ‘a bad idea’, he does not believe that it would likely be found to be
unconstitutional.[72]
Various Indigenous organisations have also spoken out
against the voter identification provisions:
Indigenous justice campaign Change the Record said Aboriginal
and Torres Strait Islanders would be disproportionately hurt by the change.
Change the Record co-chair Cheryl Axleby said no one should
be prevented from exercising their democratic right to vote in Australia
because they do not have ID.
‘‘We know Aboriginal and Torres Strait Islander peoples,
particularly those in remote and regional areas, are already disenfranchised at
the ballot box,’’ she said.
‘‘Governments already exercise disproportionate and
discriminatory control over our lives, so having our say at the ballot box
could not be more important.’’
National Aboriginal and Torres Strait Islander Legal Services
head Priscilla Atkins wants the plan ditched.
‘‘These punitive laws are a direct threat to democracy, and
are particularly concerning as they will disenfranchise many of our mob in
remote communities, given the challenges around ID and already low rates of
voter registration and participation,’’ she said.[73]
ABC election analyst Antony Green cautions that one of the
lessons learned from Queensland’s experience of voter identification laws was
to introduce the new laws early, well before an election, and hopefully have an
opportunity to test them at a smaller event such as a by-election. Green is not
inherently opposed to the idea of voter identification, but notes that this
appears to be a rushed implementation and leaves important questions
unanswered:
The voter ID law being proposed by the government is very
weak by international comparison. For most voters it requires only a small
change that should not inconvenience them. But a small number could be
inconvenienced by being forced to cast a declaration vote.
It is not US style voter suppression, though some will argue
it is the thin end of the edge with more to come.
For all the arguments for or against voter ID, there are very
good reasons to ask why it is suddenly so important in the final weeks of the
government’s third term in office.
Can it be implemented by the AEC in time without the problems
that occurred in Queensland? How will declaration votes be dealt with? How do
you stop mistakes being made where voters are denied the vote, or be misled
into thinking they can’t vote without ID?
Are particular groups of voters going to be disproportionally
disadvantaged by these laws? Particular mention has been made of remote
indigenous voters, a group who are already underrepresented on the electoral
roll, and who already face difficulties casting and having their vote count as
a result of where they live.[74]
Left-wing think tank The Australia Institute stated in a
media release that there was no evidence that voter fraud was a threat to
election integrity in Australia but that the proposed laws risked
disenfranchising vulnerable people.[75]
The provisions of the Contingency Measures Bill and the
Assurance of Senate Counting Bill seem to have been largely overshadowed by the
Voter Integrity Bill have and have received little public commentary.
Financial
implications
According to the Explanatory Memorandum for the Bill, the
Voter Integrity Bill will require funding of $5.6 million in 2021–22 to
implement the provisions of the Bill, with funding in future years to be
included in future election budgets.[76]
The Explanatory Memorandum to the Assurance of Senate
Counting Bill states that implementation costs are estimated to be $1.5 million
in 2021–22, with unspecified future costs to be included as part of future
election budgets.[77]
The measures of the Contingency Measures Bill are expected
to be cost neutral.[78]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bills are compatible.[79]
Parliamentary Joint Committee on
Human Rights
The Voter Integrity Bill was considered by the
Parliamentary Joint Committee on Human Rights and discussed in a report published
10 November 2021. While the Committee stated that it had not yet formed a
concluded view on the Bill, it did express some reservations:
The committee notes that as a matter of law, no voter will be
denied a vote for not having an appropriate form of identification or
attestation, as they would be able to cast a declaration vote. However, these
additional requirements imposed before a voter can cast their vote engages and
may limit the right to take part in public affairs and the right to equality and
non-discrimination. These rights may be subject to permissible limitations if
they are shown to be reasonable, necessary and proportionate.
The committee notes that while this measure seeks to protect
against voter fraud, reduce inadvertent mistakes and ensure public confidence
in the federal electoral system, it is unclear whether the measure addresses a
pressing and substantial concern such as to amount to a legitimate objective
for the purposes of international human rights law. Questions also remain as to
whether the measure will effectively achieve its objectives; whether the
measure will disproportionately impact particular groups; and whether
alternative, less rights restrictive approaches have been considered.[80]
Generally, the Committee noted that the Bill aims to
protect against voter fraud, but that multiple voting in Australia is rare and
the instances that do happen tend to be mistakes rather than fraud. The
Committee stated that the Government has not made a compelling case that the
provisions of the Bill would prevent voter fraud, and that it might reduce
confidence in the electoral system. The Committee further noted that ‘requiring
proof of identity may have a disproportionate impact on particular groups who
may face issues accessing identification documentation or having such
documentation on them when voting’, and that it is not clear whether the
objectives of the Bill might not better be met with less restrictive measures.[81]
At the time of publication, the Special Minister of State
had not yet replied to the committee (a response is due by 24 November 2021).
Key issues
and provisions
The key issues and provisions of the three Bills are
presented below grouped by theme, and generally by the amount of attention they
have received or the complexity of the issues raised by the provisions of the
Bills.
Voter identification
Items 1 to 20 of Schedule 1 of the Voter Integrity
Bill propose to amend the Act to require voters to prove their identity before
casting a vote. Items 21 to 40 contain essentially identical amendments
to the equivalent provisions of the Referendum (Machinery Provisions) Act
1984. The implications of the first 20 items and the second 20 items are
essentially identical, but for different electoral events (elections and
referendums, respectively) and so only items 1 through 20 will be considered
here in detail.
The specific provisions of the Bill are discussed here. A
broader analysis of the voter integrity issue in Australia federal elections is
in the Background section of this Bills Digest.
The voter identity provisions generally seek to amend the
Act by inserting a section that lists proof of identity documents at the
beginning of the Act along with existing matters of definition and
interpretation, and inserting requirements to establish a voter’s identity in
Part XVA (which deals with pre-poll voting) and Part XVI (which deals with
election day voting). The Bill specifically prohibits requiring voter
identification for electronically assisted voting (for Antarctic electors and
blind and low vision electors) in items 9 and 10. The Bill would not
impose any additional requirements on postal voters.
Forms of identity
Item 2 would insert proposed section 4AB,
which provides for a definition of ‘proof of identity document’, which is
subsequently to be relied upon by voters to establish their identity. Proof of
identity documents include a driver’s licence, passport, proof of age card, a
credit card, a bill from a local government, utility or carriage service (that
is, phone or internet) provider, a credit card, certain documents issued by an
Aboriginal or Torres Strait Islander land council, or a notice of enrolment
issued by the AEC.
The types of identity document specified are quite broad
and have little in common besides naming an individual. Not all include a
photo, date of birth or address, for example (a Medicare card or a credit card
will have none of these). The provision specifies that electronic copies of
such documents are also valid as proof of identity, which presumably means that
an electronic copy of a utility bill displayed on the voter’s smart phone will
have the same authority as a physical copy of a driver’s licence.
While the types of identification allowed are reasonably
broad, they are not exhaustive. A student card issued by a university, for
example, or a library card, would not be acceptable. A rates notice to a body
corporate, while not specifically excluded by proposed section 4AB,
would not prove the identity of an individual, as required by later proposed
sections.
The Bill does not provide for any discretion by the vote
issuing officer as to whether any other form of identification would be
acceptable, nor does it empower the Electoral Commissioner to issue any form of
instrument to expand (or reduce) the allowable identify documents.
The Bill specifically prohibits (except in relation to an
attester, discussed below) a polling official making any sort of record of the
sort of identification used (item 14, proposed subsection 229(4C)).
That is, after the election the AEC will have no way of knowing or reporting
what sorts of documents voters used and will therefore be in no position to
advise the Parliament whether the specified list of identification documents
was overly limited or permissive.
Attesting to another voter’s
identity
If a voter does not have the required identification,
another person who is enrolled to vote may attest to their identity (item 14,
proposed paragraph 229(4A)(b)). The attester must complete and sign in
the presence of a polling official an approved form which includes the
attester’s full name, enrolled address, the name of the voter, and the proof of
identity produced by the attestor.[82]
Unlike the identity requirements for a voter, an attester
must have an identification document issued by either the Commonwealth or a
state or territory government (or an authority of same) with the attester’s
name and address (item 14, proposed subsection 229(4B)). Neither
the Bill nor the Explanatory Memorandum specify that the attester’s address on
their identification must match their address on the electoral roll. Nor is it
required that the attester live in the same division as the person whose
identity they are attesting to.
The inconsistency between the forms of identification
required by a voter and by a person attesting for a voter is not addressed by
the Explanatory Memorandum.
The Bill does not provide for any further action in
relation to the attester’s form. Once the attester has completed the required
form, the voter for whom they are attesting has completed the identification
requirements and will be allowed to cast their vote. The Bill does not require
that the attester’s form be retained by the polling official, how long it must
be kept for, or as a document with personally identifying information, how and
when it should be disposed of. The Second Reading Speech for the Bill notes
that ‘the form is to be retained as evidence by the
AEC, in case of any suspected instance of multiple voting,’ however in the case
of multiple voting it would not allow the votes to be removed from the count.[83]
Verifying the identity of the voter
Items 3 to 8 relate to the requirement to verify
the identity of the voter for the purpose of pre-poll voting. These provisions
are substantially the same as those for election day voting so will not be
discussed here in detail.
Item 11 adds compliance with the new voter
identification provisions for election day and pre-poll voting as a requirement
for entitlement to vote at an election.
Section 229 deals with the questions to be put to the
voter before they are issued a ballot paper. The Bill repeals and replaces
essentially all the subsections of this section. Items 14 through 16
effect these changes.
Proposed subsection 229(1) would require a polling
official to ask each person who is attending to vote to produce proof of
identity and to ascertain whether that person has already voted in the
election. The polling official may ask questions to determine the person’s name
and address, and the division in which the person is voting. With the exception
of the identity requirements these provisions are generally similar to the
existing provisions in the section.
Proposed subsection 229(4A) specifies that the
identification requirements of proposed paragraph 229(1)(a) are
satisfied if the voter produces the specified identification or another person
attests to the voter’s identity (as discussed in the previous section).
Proposed paragraphs 229(5)(a) and 229(5)(b)
require that the person must not allowed to cast their vote as an ordinary vote
if the voter fails to produce the identity document (or have someone attest to
their identity) or the voting official is ‘not reasonably satisfied about of
the identity of the person’. That is, a person might have a specified form of
identification but for some reason that is not sufficient to satisfy the
official of their identity. The Explanatory Memorandum for the Bill notes that
having a different address on the identity documents from the voter’s enrolled
address on the certified list should potentially be able to be resolved (this
appears to be via proposed subsection 229(4) which permits one or more
questions to be asked of the person, although that is not clear).[84]
Proposed subsection 229(6) requires that if a
voter’s application to vote is rejected under the above provisions, the voter
must be informed that they may cast a provisional vote (unless they were
attempting to cast an absent vote, which is another form of declaration vote
and thus functionally the same as a provisional vote).
Provisional votes
Provisional votes are provided for under section 235 of
the Act and currently apply for voters who do not appear on the certified list
or who have already been marked off the certified list as having voted. That
is, they are for electors who intend to cast a normal vote but where there is
some reason that they are not allowed to cast a normal vote. Provisional votes
are a form of declaration vote, which means that the vote is placed in an
envelope and the voter signs a declaration to the effect that they are entitled
to cast a vote. The envelope is then subject to the declaration scrutiny
process (Schedule 3 of the Act) to determine whether the ballot can be counted
in the election.
The Bill would substitute proposed paragraph 235(1)(c)
noting that a condition under which a voter can make a provisional vote is
where they have failed to meet the identification requirements of proposed
paragraphs 229(5)(a) or (b). With the exception of that one substitution,
the Bill does not change the way provisional votes are processed.
Provisional votes, as declaration votes, are processed
according to Schedule 3 of the Act to determine whether they can be admitted
into the count, which will be referred to here as the declaration scrutiny. The
declaration scrutiny is a complicated part of the election and is generally not
something most voters have any reason to know about. As such, this Bills Digest
will provide some additional information on the declaration scrutiny process
due to the impact that it will have on voters who do not have identification
under the provisions of the Bill.
The approved form for a provisional vote is available on
the AEC
website.[85]
The current form requires certain details, such as name, date of birth,
enrolled address, citizenship and either details of a driver’s licence or
passport number, or another enrolled person who can confirm a person’s identity.
Not all this information needs to be verified for the vote to be admitted—the
declaration vote form is also an approved form for making claims of enrolment,
so if the individual is not enrolled it can be used to enter them on the roll
so they can vote at the next election. The required information on the form is
therefore more due to its function as an enrolment form than due to the
requirements of the declaration scrutiny process.
The form notes:
Your details will be checked against records held in the
divisional office before the Divisional Returning Officer decides, on the basis
of those records, if your vote can be counted. During this process you may be
asked to provide evidence of your identity.
If a decision is made not to count your vote, the Divisional
Returning Officer will advise you in writing.[86]
The AEC provides an abbreviated version of the declaration
scrutiny process in its Scrutineers Handbook. It states:
A declaration vote will be accepted for further scrutiny if
the DRO is satisfied:
•
that the elector is enrolled for the division
• that the certificate or declaration has been properly signed and witnessed.
Votes will not be admitted where:
• the elector was provisionally enrolled at 17 years of age but had not
turned 18 on or before election day
• the elector’s claim to be enrolled was received by the AEC after the close of
rolls for the election.
A vote will generally be admitted if clerical, computer error
or omission was responsible for the elector’s name or address being excluded
from the electoral roll.[87]
During the declaration scrutiny for provisional votes the
AEC’s Divisional Returning Officer (DRO) for the division must determine
whether the signature on the declaration envelope is the signature of the
voter. If the DRO has any reason to doubt that the signature is that of the
voter, they must check against the most recent record of the voter’s signature
they have available (Schedule 3, paragraph 3A).
As a large number of electors are now enrolled using the
AEC’s federal direct enrolment and update (FDEU) system, which allows the AEC
to enrol the electors without the intervention of the elector, the AEC will not
have signatures available for some unknown (though likely substantial)
proportion of electors.[88]
If the DRO remains unconvinced about the veracity of the signature, the DRO
‘must make all reasonable attempts to contact the elector within 3 days after
the election, to require the elector to provide evidence of his or her identity
by the first Friday following the polling day for that election’ (Schedule 3,
paragraph 3A).
If there is more than one provisional vote that purports
to be from the same elector, the AEC must exclude all but one of the ballot
papers, and keep only the ballot paper that was received first (to the extent
possible; paragraph 6A). If the declaration vote is deemed to have a valid
signature, and the elector is correctly enrolled in the electorate, and is the
only ballot paper from the elector, the ballot paper will be removed from the
envelope and placed in a ballot box to be counted.[89] If the ballot paper cannot be
included in the scrutiny because it fails one of the steps of Schedule 3 the
AEC must write to the voter to inform them of the reason for the rejection
(paragraph 21).
Each provisional ballot therefore involves a significant amount
of work for the AEC, potentially including multiple communications with the
elector and a subjective judgement as to the validity of a signature. The votes
must be transported from the polling place where they are cast to a central
counting point for each division, which in some of the larger divisions might
involve them travelling hundreds of kilometres. As the declaration scrutiny
does not commence until after polling day, counting of declaration votes is
slower and could potentially delay determining the outcome of a close election.
In its report to the JSCEM inquiry into the 2019 federal
election the AEC reported that only 64 per cent of the provisional
votes that were issued at that election were counted, with more than 56,000
provisional votes not being counted.[90]
It further noted that in July 2019 it sent out 225,171 voter advice letters to
voters advising that their declaration vote (which includes absent and postal
votes) was rejected or partially admitted.[91]
In relation to counting declaration votes, the AEC noted:
The complexity is significant. The AEC moves all declaration
votes to the ‘home’ division at a cost of several million dollars. The
management of this task is one of the largest in the election, taking effort
away from important post-polling day counts and other activities. Schedule 3 of
the Electoral Act, regarding the preliminary scrutiny of declaration votes, is
highly prescriptive and complex.[92]
The reason that so few provisional votes are included in
the count is not clear. Some proportion will be electors who are not enrolled
and therefore cannot cast a vote. Some provisional votes will be informal, and
AEC analysis indicates that provisional votes are roughly 50 per cent more
likely to be informal than votes cast through other means. [93] For current purposes, the
main question is how many provisional votes were rejected because the AEC was
unable to verify the signature of the voter, and this information does not seem
to be readily available.
In short, it seems likely that, due to the increased complexity
of declaration votes, both for the voter and the AEC, the chances of a given
declaration vote from an eligible voter not being admitted into the count is
greater than zero. Quantifying this risk would allow a better assessment of the
risk of the provisions of the Bill potentially disenfranchising an eligible
voter.
Assurance of the Senate counting
system
Item 1 of Part 1 of Schedule 1 of the Assurance of
Senate Counting Bill proposes to insert two new sections into the Act, proposed
section 273AA and proposed section 273AC.
Proposed section 273AA would require the AEC to,
between the day after Royal Assent for the Bill and the next Senate election
(which will most likely be at the next federal election), arrange for an
independent person or body, accredited by the Australian Signals Directorate,
to conduct a security risk assessment of the Senate ballot paper scanning
system (the system is described in the Background section of this Bills
Digest). The report from the assessment must be provided to the AEC and the AEC
must publish a statement to the effect that the assessment has been completed.
While the report may include recommendations to the AEC to reduce or eliminate
risks, the AEC is not required by this provision to act on those recommendations,
or to publish the actual report.
Proposed section 273AC would require the AEC to
conduct what is essentially a statistical audit of the accuracy of the Senate
ballot paper scanning process whenever the process is used (proposed
subsection 273AC(1)). The proposed section states that the ‘sampling
assurance’ is not part of the count (the scrutiny), but the outcomes must be
published by the AEC within 14 days of the return of the writ, which means that
it will be well within the 40-day timeframe for petitioning the Court of
Disputed Returns on the outcome of the election (paragraph 355(e)).
The proposed section would require at least 5,000 ballot
papers to be checked across the country for a general election and at least
1,000 for stand-alone Senate election. A statistically significant sample, or
no less than that size, must be checked to ensure that the scanned data of the
ballot papers matches the actual preferences on the ballot papers. While the
exact process that must be undertaken is not specified, the proposed section
requires that the AEC publish the methodology to be used before polling day,
and that the process may be inspected by scrutineers.
Neither the Bill nor the Explanatory Memorandum specify
precisely what is meant by ‘statistically significant’.[94] It is also not clear what the
criteria for accuracy for the resulting assessment should be. If the scanner
makes a mistake with a preference that is far down the voter’s preference
ordering, but that preference on that ballot paper is never actually counted
(because the vote has already counted against a candidate with a higher
preference) there is no indication as to whether that should or should not
constitute an error, for example
The items in Part 3 of Schedule 1 also aim to
increase the transparency of the Senate counting process by making ballot
papers more accessible to scrutineers. As noted in the Background section of
this Bills Digest, scrutineers had noted the difficulty of properly
scrutinising Senate ballot papers due to the speed of the data entry process. Item
14 would allow scrutineers to request access to an original ballot paper to
assist the scrutineer in determining its formality or its preferences, and the
request must be granted unless doing so would unreasonably delay the scrutiny
or put at risk the timely return of the writ. The item would also add a note
that ‘multiple unreasonable, frivolous or vexatious requests’ may be a reason
for refusing a request on the grounds of unreasonable delay. Items 12 and 13
of this Part are consequential to item 14.
Item 15 would create a requirement for the AEC to
publish information about each formal ballot paper, including the full set of
preferences and the distribution of preferences. The AEC has routinely
published this information on its website after each Senate election. The
Explanatory Memorandum for the Bill notes that this legislates the AEC’s
existing process ‘to support
transparency and public confidence in electoral outcomes’.[95]
Item 1 of Schedule 2 of the Assurance of Senate
Counting Bill would come into effect from 1 January 2023 (that is,
most likely after the next election but before the one that follows) and would
insert proposed section 273AB to require that the AEC conduct a similar
process of software quality assurance, but specifically for the software which
undertakes the distribution of preferences for the Senate count (the software
that is used for the count is currently EasyCount – Senate (ECS), according to
the AEC
website).[96]
The provision would require the AEC to make public statements to the effect
that the software had been assessed and assured around the time of the
election.
On its website the AEC
states:
After each electoral event the AEC completes an assessment of
the event, including identifying areas for improvement. From this the systems
used are upgraded and fully tested prior to the next election.
EasyCount – Senate (ECS), the Ballot Paper Reconciliation
System (BPRS) and the Senate Scanning Solution (SSS) (currently supplied by
Fujifilm) all go through testing. This includes unit testing (completed by the
developers), function testing (to ensure all components of the system work) and
User Acceptance Testing (UAT) to ensure the systems meets the defined
requirements. Other, non-functional, testing includes capacity and penetration
testing.
Once all systems are built and tested individually, they are
tested simultaneously to show they integrate correctly.
Once all systems are shown to accurately work together, the
AEC performs further testing of the Senate Scanning Solution in each state and
validates the data and flows. After this process is completed, all states
process at the same time to ensure the eight (one for each state and territory)
production environments operate effectively at the same time.
After the close of nominations, and before polling day,
Production Verification Testing ensures the scanners and templates for each
ballot paper are correctly set up. Sample ballot papers are used with the
resulting data sent from Fujifilm to the AEC, to again test the entire
production environment before scanning of senate ballot papers commences, in
the days following polling day.[97]
It seems reasonable to suggest that the proposed provision
would not require a significant change of process for the AEC, but rather
codifies and makes somewhat more transparent a process that the AEC already
undertakes.
The Explanatory Memorandum for the Bill states that the
provisions of Schedule 1, Part 1 and Schedule 2 respond to
recommendation 3 of the JSCEM report into the 2016 federal election. The
specific recommendation was:
The Committee recommends that a non-partisan independent
expert scrutineer be appointed to each Central Senate Scrutiny Centre in each
state and territory and be responsible for:
• auditing the computer systems and processes used to capture
and count votes;
• undertaking randomised checks between captured data and
physical ballot papers throughout the count at a level that provides surety as
to the accuracy of the system; and
• providing reports to candidate scrutineers about their
findings on a regular basis during the count.[98]
The provisions of the Bill generally seem like a reasonable
compromise between increasing the accessibility and accountability of the
Senate counting system in the spirit of the recommendation, but not unduly
increasing the time required to count the ballot papers following an election.
However, the provisions seem more literally similar to the provisions in
Senator Roberts’s Bill than to the 2016 election report recommendations. The
provisions in proposed section 237AC, for sampling of Senate ballot
papers, have a less clear origin, and this sort of direct and specific testing
of scanning accuracy is something the AEC does not appear to ever have
advocated in favour of.
As noted above, the AEC asserts that it verifies the
accuracy of its processes, but does not publish any statistical break-downs of
its results and as Associate Professor Teague noted in her evidence to the
inquiry into Senator Roberts’s Bill, specific information about those assurance
processes is generally not available.[99]
The AEC’s views on the utility and risks of the specific audit model proposed
in the section would likely be informative.[100]
Contingency measures in the case of
an emergency
The Contingency Measures Bill would introduce proposed
section 396 to the end of the Act (Item 1). The provisions
would come into effect in the event an emergency is declared under a
Commonwealth emergency law and the Electoral Commissioner is satisfied on
reasonable grounds that the emergency would interfere with the due conduct of
an election.
Two proposed subsections would empower the Electoral Commissioner
to issue legislative instruments which have various functions. While the
wording of the provisions state that they would ‘modify the operation of this
Act’, only proposed subsection 396(2) lists specific provisions
of the Act that a legislative instrument would modify the operation of, whereas
an instrument issued under proposed subsection 396(3) would be able to
have force despite prescribed Commonwealth, state or territory legislation.
Generally, there are three functions that the legislative
instruments issued under this proposed section have:
- expanding
access to voting options for voters
- ensuring
that the AEC can still run an election in an area experiencing an emergency and
- ensuring
that emergency measures do not prevent parties and candidates from campaigning
in an area affected by an emergency.
For expanding access to polling, under proposed
subsection 396(2), the Electoral Commissioner can issue a legislative
instrument to:
- expand
the grounds on which an elector can apply for a postal or pre-poll vote and
- expand
the pre-poll period in the emergency area.
Proposed paragraph 396(2)(a) would authorize an
instrument to expand the grounds on which a person in the emergency area may
apply for a postal or pre-poll vote. The specified criteria for applying for a
pre-poll or postal vote are in Schedule 2 of the Act. Neither the Bill nor the
Explanatory Memorandum for the Bill suggest what additional grounds might be
added, but presumably it would add something along the lines of travelling or
displacement due to an emergency. Reasons such as reducing election day
crowding, which has been used as a reason for expanding access to pre-poll and
postal voting in recent state and territory elections during the COVID-19
pandemic, would presumably not apply, as the proposed paragraph relates to
grounds on which a person may apply for a postal or pre-poll vote, not to an
election as a whole.
It is worth noting that while Schedule 2 nominates allowed
reasons for early voting, there is reason to question the extent to which this
is enforced for postal and pre-poll voting. For example, in 2019, according to
the AEC’s voter survey, 22 per cent of survey respondents said that they voted
early because it was ‘more convenient’ and an additional 9 per cent said that it
was to avoid crowds or queues, neither of which is an allowed reason under
Schedule 2.[101]
If roughly a third of voters are early voting for reasons other than allowed
reasons, it does raise a question as to how many more voters will feel
empowered to vote early on the basis of a change due to a legislative
instrument issued under this provision.
Proposed paragraph 396(2)(b) would allow for an
instrument to extend the time permitted for early voting, however it specifies
that early voting may commence no earlier than five days after the close of
nominations. Prior to the commencement of the Electoral Legislation
Amendment (Counting, Scrutiny and Operational Efficiencies) Act 2021 in
August 2021, early voting was permitted from five days after the close of nominations.[102] That Act
changed the timing of early voting so that it could commence no more than 12
days before polling day (section 200BA(1AA)). As such this provision would
return the early voting period, during an emergency, to no more than the time
it has been for recent elections.
Proposed paragraphs 396(2)(c) and 396(3)(a) appear
to generally relate to the ability of the AEC to undertake polling safely under
the conditions of an emergency. The former allows the proposed subsection
396(2) legislative instrument to restrict the number of scrutineers that
are able to be present at a counting centre, but not such that a candidate may
have no scrutineers. Under subsection 264(2), a candidate may have as many
scrutineers as there are AEC officials counting votes at a counting centre.
This provision would allow the AEC to continue to observe social distancing
requirements, for example, while still ensuring the scrutineers are present to
observe the count.
Although the Explanatory Memorandum of the Bill does not
elaborate specifically, it appears that the legislative instruments that the
Electoral Commissioner may issue under proposed subsection 396(3) have
two separate functions: one relating to AEC operation of polling places, and
the other relating to campaigning at polling places. The proposed section notes
the instrument may do either or both of these functions.
Under proposed paragraph 396(3)(a) the Electoral
Commissioner may issue a legislative instrument that would permit persons to
travel to or be present in the emergency area for ‘action… that is necessary or
conductive for the due conduct of an election’, despite a Commonwealth, state
or territory law to the contrary. Although the note to the proposed paragraph
and the Explanatory Memorandum mention candidates and scrutineers, and not
polling officials, the paragraph itself appears to authorize an instrument to
enable AEC staff to set up and operate a polling place in an emergency area.
Proposed paragraph 396(3)(b) and proposed
subsection 396(4) do specifically state that the legislative instrument may
also allow campaigning for an election, despite a Commonwealth, state or
territory law to the contrary, within 100 metres of a polling place. It is of
note that no other provision of the Act regulates polling activity so far from
a polling place. Section 340 is the only part of the Act that specifically
regulates behaviour around a polling place, and there only within six metres of
the entrance to the polling place.
Proposed subsection 396(3) also specifies that a
person may travel to undertake the activities that the legislative instrument
permits. This suggests, for example, that if, as has happened recently, a state
border is closed for biosecurity reasons under state legislation, if a
legislative instrument is issued which includes activities under proposed
paragraph 396(3)(b), a person would be permitted to cross those state
borders to carry out the specified activities at a polling place in that state
in the event of a federal election.
The Electoral Commissioner must publish any legislative
instrument made under proposed subsection 396(2) or proposed
subsection 396(3) on the AEC’s website, and also before making the
instrument must notify the Prime Minister and Leader of the Opposition.[103] The
Electoral Commissioner is not required to notify or consult with any other
parties or candidates in relation to making the instrument. This is in contrast
to the JSCEM’s recommendation, which stated:
To maintain transparency and accountability, on the exercise
of any emergency declarations, the Electoral Commissioner must as soon as
practicable:
• publish the decision to modify the electoral event and the
modifications to be made;
• inform the Joint Standing Committee on Electoral Matters
actions taken.
Although the Committee is not fully constituted once the
House of Representatives has been dissolved for a general election, it is the
primary Parliamentary oversight mechanism for the AEC and as such must be able
to review any emergency declarations made by the Electoral Commissioner
immediately on resumption of its duties.[104]
As a practical matter, there would be no opportunity for disallowance
of an Electoral Commissioner’s legislative instrument made under these proposed
subsections, the instrument would only be issued once Parliament has been
dissolved for an election.
The remaining provisions of item 1 provide a list
of Commonwealth emergency laws for the purposes of proposed section 396, allow
the Minister to make a legislative instrument to add to that list of laws, and
specify that a legislative instrument made under proposed subsections 396(2) or
(3) ceases when the emergency declaration is revoked or ends, or when the
writs for the election are returned (that is, when the election is completed).
This means that the legislative instrument could be in effect for not just the
polling, but also the counting of votes.
A number of state and territory elections have been
conducted during the COVID-19 pandemic and each has taken a slightly different
approach to how best to accommodate the unprecedented circumstances and carry
out the election safely. Compared, for example, to the ACT territory election,
where the Electoral Act 1992 (ACT) was amended to remove any eligibility
requirements to cast an early vote and Elections ACT actively encouraged people
to vote early,[105]
it is probably reasonable to state that this Bill takes a much more minimal
approach.
The provisions in Part 2 of the Bill are generally
to improve consistency with the provisions in Part 1. Items 2
and 3 provide that adjournment of polling is a power of the Electoral
Commissioner, rather than the presiding officers of the polling centre. Items
4 through 6 clarify that the scrutiny (counting) for House of
Representatives elections cannot commence at a polling place where voting has
been adjourned until after the close of polls. Item 7 proposes to create
an offence for divulging Senate results before the close of polls where polling
has been adjourned.
Other provisions
The Senate counting process
Section 273 of the Act specifies the complex process of
counting Senate ballot papers according to the Senate’s specific variant of the
single transferable vote counting system. Specifically, it takes a relatively
complex algorithm and converts it into legislation, with the additional
constraint that when it was drafted it was describing a manual counting process
(a separate section, 273A, provides for the computerisation of the process, however
if there were a potential failure of the computerised counting process a manual
count would still be required under the legislation).
The provisions of Schedule 1, Part 2 of the
Assurance of Senate Counting Bill propose a number of relatively minor changes
to the counting system. Items 2, 3 and 4 would amend section 273 to
specify that at certain points in the count if two candidates have equal number
of votes (that is, are tied), the successful candidate would be chosen by lot.
There are a number of other uses of the term ‘by lot’ in the Act (in the
provisions for the scrutiny in the House of Representatives and in the section
76 mini-redistribution provisions), and while not defined in the Act the Macquarie
Dictionary provides a definition as ‘to decide a question or choice by
chance’.[106]
The proposed provisions would remove a more active role of the Australian
Electoral Officer for the state in such ties, however the author is not aware
of any examples where the existing provisions have been required.
Items 5 through 9 are slightly more complex
variants along the same theme. In essence, they define conditions in which tied
candidates can be distinguished (because one had more votes than the other at a
previous point in the count) and where they cannot (because it is the start of
the count or there was otherwise never a point at which one had more votes than
the other). Where there is not a way to distinguish the order of the
candidates, and there is a need to do so, it must be done by lot. Where there
are three candidates tied, solutions are provided for untying them.
Items 10 and 11 amend section 273A to remove the
requirement to conduct a bulk exclusion of candidates as part of a computerised
count of the Senate ballot papers. A bulk exclusion is a convenient process for
a manual count which is not required for a computer count. It is not clear why
the provisions were included, and not elaborated upon by the Explanatory
Memorandum, as the inclusion or removal of these provisions does not actually affect
the outcome of the count. The removal of the bulk exclusion provisions will
likely require the AEC to change its vote counting software, presumably
requiring it to be re-certified before the election.
Postal voting changes
The provisions of Part 3 of the Contingency
Measures Bill relate to postal voting and are generally not otherwise related
to the other measures in the Bill (which are about voting during an emergency).
Items 10 through 12 propose to change the deadline
for receipt of a postal vote application. The Act allows postal vote
applications to be received up to three days before polling day, whereas these
items propose to change the deadline to four days before polling day (or the
Tuesday before polling day). According to the Explanatory Memorandum:
This amendment provides additional time for postal vote
materials to be delivered to electors. Although this is a marginal change to
the cut-off point for applying for a postal vote, it reduces the risk that
people will receive forms too late to return them in time to be counted. This
therefore mitigates against accidental disenfranchisement, by ensuring that
those persons who seek to vote late in the final week of an election choose a
viable method of having their ballot admitted into the count.[107]
To clarify how postal voting works: for postal voters who
are not registered as ‘general postal voters’ (under section 184A), a postal
voter must make an application for a postal vote to the AEC (and must have a
valid reason for doing so as per Schedule 2 of the Act). The AEC receives that
application and if the person is entitled to vote (that is, they are correctly
enrolled for the election) they will be sent a ‘postal vote certificate’. The
postal vote certificate and ballot paper are then returned to the AEC and if
the vote passes the declaration scrutiny (a variant of the Schedule 3 process
described above for provisional votes), the ballot is admitted into the count
for the electorate in which the voter is enrolled.
As such there are two deadlines for postal voting: the
deadline for an application, and the deadline for the receipt by the AEC of the
postal vote certificate. The latter is 13 days after the close of the poll,
according to subsection 228(5A).
In its submission to the JSCEM inquiry into the 2019
federal election, the AEC reported that some unspecified number of postal vote
certificates were received after the 13 day deadline and could not be admitted
to the count.[108]
It noted that about half of these were received from overseas. These provisions
would not affect the timely return of postal vote certificates to the AEC.[109]
The AEC further noted in its submission that the main
issue with timely receipt of postal vote applications relates to applications
that are distributed to voters by political parties. The AEC advises that one
approach could be for political parties to direct voters to the AEC’s online
postal vote application system, noting that the ‘link could be included in
their mailed campaign letters and might assist in reducing any risk of
disenfranchisement’.[110]
As the AEC noted in its submission, an increasing number
of postal voters are choosing to apply for their postal votes online, which
substantially expedites the process of dispatching their postal vote
certificates. The proportion of postal vote applications that come via
political parties is shrinking over time (see Figure 1), suggesting that the
proportion of postal votes for which this provision is necessary is small and
shrinking.[111]
The remaining provisions of Part 3 make some
changes to the allowable forms that a postal vote must take to still be allowed
into the count. Specifically, proposed subsection 194(1B) allows the
postal vote certificate to be inside the envelope. Generally, a postal vote
ballot will be received inside an envelope, and the envelope will constitute
the postal vote certificate and be signed by the voter and witness. This is so
that the details of the voter can be confirmed without knowing how the voter
marked their ballot paper. However, the provision would allow the certificate
and envelope to be separate.
It is not entirely clear how the Act as amended would deal
with a postal vote where the certificate and the ballot were both within the
one envelope and the certificate could not be verified without also seeing how
the elector marked the ballot. This would violate the principle of the secret
ballot. The specific rules for the declaration vote scrutiny are at Schedule 3
of the Act, which the AEC notes in its submission to the JSCEM’s 2019 federal
election inquiry, ‘is highly prescriptive and complex’.[112] While the Explanatory
Memorandum notes that integrity in postal voting will be retained because the
same information will need to be checked as for a traditional postal vote
certificate, it does not discuss the possibility of the secrecy of the ballot
being violated.[113]
Figure 1: Source of postal vote applications, federal elections 2010 onwards
Source: Muller
2020, 40.
Concluding comments
The voter identification provisions of the three Bills
covered by this Bills Digest have been the subject of essentially all the
commentary on the Bills. However, there are a number of provisions in the
remaining two Bills which are unusual enough that they may benefit from further
scrutiny. In particular, the requirements around verifying the accuracy of the
AEC’s Senate voting software from the Assurance of Senate Counting Bill and the
provisions in the Contingency Measures Bill that expand the AEC’s sphere of
influence around a polling place from six metres to 100 metres and allow
political campaigning that could potentially conflict with prevailing public
safety requirements (should an Electoral Commissioner deem that warranted) constitute
substantial changes. While some of these ideas have been discussed in various
parliamentary committees, the detailed provisions have not, and it the
Parliament may wish to seek further evidence from the AEC on the practical
application of the measures.
Voter identification provisions will likely always be a
controversial topic in Australia. While Australia is something of an
international outlier in not requiring voters to identify themselves to vote,
many aspects of Australia’s electoral system are also highly unusual from an
international perspective (compulsory enrolment without a civic register and
preferential voting are examples), and that unusualness is not in itself an
argument for change.
While it is true that the identification requirements
proposed in the Voter Integrity Bill are broad and should for most voters be
easily met, evidence from the one Australian experiment with voter
identification—the 2015 Queensland state election—suggests that Indigenous
voters and remote and rural voters are more likely to not have the correct
documentation. These voters will then have their votes subject to the complex
and not well understood provisional vote requirements, which may increase the
chances of their vote not being counted.
[1]. Joint
Standing Committee on Electoral Matters (JSCEM), Report
on the Conduct of the 2019 Federal Election and Matters Related Thereto,
(Canberra: JSCEM, December 2020); JSCEM, Report
of the Inquiry on the Future Conduct of Elections Operating During Times of Emergency
Situations, (Canberra: JSCEM, June 2021).
[2]. See
Rob Lundie, Laura Schatz and Damon Muller, 'So
When is the Next Election?': Australian Elections Timetable as at January 2020,
Research paper, 2019–20, (Canberra: Parliamentary Library, 13 January 2020).
[3]. Australian
Parliament, Commonwealth
Electoral Amendment (Integrity of Elections) Bill 2021 homepage.
[4]. James
McGrath, Second
Reading Speech: Commonwealth Electoral Amendment (Integrity of Elections) Bill
2021, Senate, Debates, (proof), 18 October 2021, 14.
[5]. Australia,
Senate, Selection
of Bills—Standing Committee—Report no. 11 of 2021, Journals, 121, 2
September 2021, 4086; in his comments in the resulting
Committee report Senator Roberts stated that he requested that the Bill be
referred for an inquiry ‘to create a dialogue around issues of auditing and
voter integrity’ (p. 25).
[6]. Senate
Finance and Public Administration Legislation Committee, Commonwealth
Electoral Amendment (Integrity of Elections) Bill 2021, (Canberra: The
Senate, 2021), 14.
[7]. Finance
and Public Administration Legislation Committee, 19-25.
[8]. Explanatory
Memorandum, Commonwealth Electoral Amendment (Integrity of Elections) Bill
2021, 2.
[9]. Vanessa
Teague, Submission
to Senate Finance and Public Administration Legislation Committee, Inquiry
into the Commonwealth Electoral Amendment (Integrity of Elections) Bill 2021, [Submission
no. 2], 23 September 2021, 1.
[10]. Auditor-General
of Australia, Submission
to Senate Finance and Public Administration Legislation Committee, Inquiry
into the Commonwealth Electoral Amendment (Integrity of Elections) Bill
2021, [Submission no. 10], 23 September 2021.
[11]. Australian
National Audit Office (ANAO), Australian
Electoral Commission’s Procurement of Services for the Conduct of the 2016
Federal Election, ANAO report, 25, 2017–18, (Canberra: ANAO, 2018), 60.
[12]. ANAO,
60.
[13]. ANAO,
56–57.
[14]. ‘Formality’
in this context refers to whether the ballot paper has been completed correctly
(that it has at least the required number of preferences expressed, for
example) and can be entered into the count.
[15]. ANAO.
[16]. Tom
Rogers (Electoral Commissioner), Evidence
to Senate Finance and Public Administration Estimates Committee, 27 May 2021,
129.
[17]. AEC,
Submission
to the Joint Standing Committee on Electoral Matters, Inquiry into and Report
on all Aspects of the Conduct of the 2019 Federal Election and Matters Related Thereto,
[Submission no. 120.1], 27.
[18]. ‘Terms
of References’, JSCEM website; JSCEM, Report
of the Inquiry on the Future Conduct of Elections Operating During Times of Emergency
Situations.
[19]. JSCEM,
Report
of the Inquiry on the Future Conduct of Elections Operating During Times of Emergency
Situations, ix–x.
[20]. AEC,
Submission
to JCEM Inquiry on the Future Conduct of Elections Operating During Times of
Emergency Situations, [Submission no. 17], November 2020.
[21]. AEC,
Submission no. 17.
[22]. JSCEM,
Inquiry
on the Future Conduct of Elections Operating During Times of Emergency
Situations.
[23]. Robson
Rotation involves changing the order of candidate names on ballot papers so
that each candidate is equally likely to be in the top position on the ballot
paper, to reduce the effect of ‘donkey voting’ where voters vote straight down
the ballot paper; JSCEM, Report
on the Conduct of the 2019 Federal Election, xi.
[24]. JSCEM,
Report
on the Conduct of the 2019 Federal Election, xix–xx.
[25]. JSCEM,
Report
on the Conduct of the 2019 Federal Election, 142.
[26]. JSCEM,
Report
on the Conduct of the 2016 Federal Election and Matters Related Thereto,
(Canberra: JSCEM, November 2018), xxv.
[27]. JSCEM,
Report
on the Conduct of the 2016 Federal Election, 63.
[28]. JSCEM,
Report on
the Conduct of the 2013 Federal Election and Matters Related Thereto,
(Canberra: JSCEM, April 2015), xii.
[29]. JSCEM,
Report on
the Conduct of the 2013 Federal Election, 114.
[30]. JSCEM,
Report on
the Conduct of the 2013 Federal Election, 119.
[31]. JSCEM,
Report on
the Conduct of the 2013 Federal Election, 118–119.
[32]. Rodney
Smith (Department of Government and International Relations) Multiple
Voting and Voter Identification: A Research Report Prepared for the New South
Wales Electoral Commission, (Sydney: University of Sydney, February
2014).
[33]. Jeffrey
Karp, Alessandro Nai, Ferran Martínez i Coma, Max Grömping, and Pippa Norris, The
Australian Voter Experience: Trust and Confidence in the 2016 Federal Election,
the Electoral Integrity Project, (Sydney: University of Sydney, 2017), 23.
[34]. JSCEM,
Report on
the Conduct of the 2013 Federal Election, 121–122.
[35]. AEC,
Submission no. 120, 28.
[36]. A
certified list is a list of voters who are entitled to vote for each division
at an election, prepared under section 208 of the Act. In practice, this is the
list that voters are marked off when they attend a polling place to vote.
[37]. Senate
Finance and Public Administration Legislation Committee, Estimates, Official
Committee Hansard, 26 October 2021.
[38]. Senate
Finance and Public Administration Legislation Committee, Estimates.
[39]. Senate
Finance and Public Administration Legislation Committee, Estimates.
[40]. AEC,
Submission no. 120, 22.
[41]. ‘Identifying
customers who don’t have conventional forms of ID’, AUSTRAC website, 27
August 2021.
[42]. National
Identity Proofing Guidelines, (Canberra: Attorney-General’s Department,
2016).
[43]. Royal
Automobile Club of Victoria (RACV), Young
Adult Licencing Trends – 2017 Update, RACV Research Report, 17/02, (Vic:
RACV, 2017); Tim Raimond and Frank Milthorpe, ‘Why
Are Young People Driving Less? Trends in Licence-holding and Travel Behaviour’
(Australasian Transport Research Forum 2010 Proceedings, Canberra, 29 September–1
October 2010).
[44]. Peter
Shergold, et al, Independent
Review of Health Providers’ Access to Medicare Card Numbers: Final Report,
(Canberra: Department of Human Services, 2017), 7–8.
[45]. Shergold,
Independent Review,
10.
[46]. Jason
Wilson, ‘The
Plan to Tighten Australia's Voter ID Laws is Just a Clumsy Uptake of US Culture
Wars’, Guardian Australia, 6 November 2021.
[47]. Karen
Barlow, ‘Labor
Created Voter ID “Scare Campaign”’, Canberra Times, 9 November 2021,
2.
[48]. Tom
McIlroy, ‘ALP
Attacks “Racist” Voter ID Plan’, Australian Financial Review, 29
October 2021, 12.
[49]. Benjamin
Highton, ‘Voter
Identification Laws and Turnout in the United States’, Annual Review of
Political Science 20, no. 1 (2017): 154.
[50]. Highton,
163.
[51]. Enrico
Cantoni and Vincent Pons, ‘Strict ID Laws Don’t Stop Voters: Evidence from a
U.S. Nationwide Panel, 2008–2018’, Quarterly Journal of Economics 136,
no. 4 (November 2021): 2615–2660 (the unpublished article is available from SSRN).
[52]. German
Lopez, ‘A
New Study Finds Voter ID Laws Don’t Reduce Voter Fraud — Or Voter Turnout’,
Vox (blog), 21 February 2019.
[53]. Smith,
72–73.
[54]. Graeme
Orr, and Tracey Arklay, ‘Rethinking
Voter Identification: Its Rationale and Impact’, Australian Journal of
Political Science 51, no. 3 (2 July 2016): 386–99, 392.
[55]. Orr
and Arklay, ‘Rethinking Voter Identification’, 393.
[56]. Graeme
Orr, ‘Voter
ID is a Bad Idea. Here’s Why’, The Conversation, 4 November 2021.
[57]. Smith.
[58]. John
R Lott, ‘Why
Do Most Countries Require Photo Voter IDs?: They Have Seen Massive Vote Fraud
Problems’, (Montana: Crime Prevention Research Center, 19 May 2021).
[59]. Neil
Johnston and Elise Uberoi, Voter
ID, (Research briefing), (London: House of Commons Library, 3 September
2021).
[60]. Tom
McIlroy, ‘Indigenous
“Say” Would be Hit by Voter ID Change’, Australian Financial Review,
12 November 2021, 14.
[61]. Patrick Dodson (@SenatorDodson), Twitter, 2 November 2021
[62]. Don
Farrell (Shadow Special Minister of State), ‘Labor
Will Fight Morrison’s Moves to “Trump-ify” Australia’s Democracy’, media
release, 5 November 2021.
[63]. Don
Farrell (Shadow Special Minister of State), ‘Voter
ID Laws Proposed by Morrison-Joyce Government’, interview with Leon Byner’,
FiveAA, 8 November 2021.
[64]. McIlroy,
‘Indigenous
“say” Would Be Hit by Voter ID Change’, 14.
[65]. Tom
McIlroy, ‘Key
MPs Query Rush for Voter IDs Amid Crawl on Federal ICAC’, Australian
Financial Review, 5 November 2021, 12.
[66]. Tom
McIlroy, ‘Voter
ID Plan Likened to Checking in with QR Code’, AFR Weekend, 30
October 2021, 15.
[67]. Matthew
Killoran, ‘Pauline
Hanson “Mayhem” for Morrison Over Vaccine Mandates’, Courier Mail,
12 November 2021.
[68]. P
Karp, ‘Pauline
Hanson Claims Credit for Coalition’s Controversial Voter ID Laws’, Guardian
Australia, 28 October 2021.
[69]. See,
for example, McIlroy, ‘Indigenous
“Say”’ and ‘Voter
ID Plan’.
[70]. Bob
Katter, ‘Katter
Says Proposed Voter ID Law is Blatantly Racist', media release, 11 November
2021.
[71]. Dani
Larkin, ‘Why
Voter ID Requirements Could Exclude the Most Vulnerable Citizens, Especially
First Nations People’, The Conversation, 8 November 2021.
[72]. Graeme
Orr, ‘Voter
ID is a Bad Idea.
[73]. McIlroy,
‘Indigenous
“Say”’.
[74]. Antony
Green, ‘Government
Introduces Bill Requiring Voters to Show ID to Vote’, Antony Green’s
Election Blog, 28 October 2021.
[75]. The
Australia Institute, ‘On
Eve of Federal Election, Government Looks to Disenfranchise Voters While
Ignoring Long-Overdue Democracy Reforms’, media release, 28 October 2021.
[76]. Explanatory
Memorandum, Electoral Legislation Amendment (Voter Integrity) Bill 2021, 2.
[77]. Explanatory
Memorandum, Electoral Legislation Amendment (Assurance of Senate Counting)
Bill 2021, 4.
[78]. Explanatory
Memorandum, Electoral Legislation Amendment (Contingency Measures) Bill
2021, 3.
[79]. The
Statement of Compatibility with Human Rights can be found at pages 4–6 of the Explanatory
Memorandum to the Electoral Legislation Amendment (Voter Integrity) Bill
2021; pages 4–6 of the Explanatory
Memorandum to the Electoral Legislation Amendment (Contingency Measures)
Bill 2021; and page5 of the Explanatory
Memorandum to the Electoral Legislation Amendment (Assurance of Senate
Counting) Bill 2021.
[80]. Parliamentary
Joint Committee on Human Rights, Human
Rights Scrutiny Report, 13, 2021, 10 November 2021: 8–9.
[81]. Parliamentary
Joint Committee on Human Rights, 7.
[82]. A
postal vote certificate, by comparison, must also be signed by an authorised
witness, however the witness only needs to include their signature, a date and
the category of witness. The AEC’s postal vote certificate form is available on
its
website.
[83]. Angus
Taylor, Second
Reading Speech: Electoral Legislation Amendment (Voter Integrity) Bill 2021,
House of Representatives, Debates, (proof), 28 October 2021, 11.
[84]. Explanatory
Memorandum, Electoral Legislation Amendment (Voter Integrity) Bill 2021,
paragraph 8.
[85]. AEC,
‘Commonwealth
Electoral Act 1918 (CEA) notices of approved forms – Approved Forms’, AEC
website, 29 September 2021.
[86]. AEC,
‘Approved
Form for the Purpose of Declaration Voting’, 2 February 2018.
[87]. AEC,
Scrutineers
Handbook: Federal Elections, By-elections, Referendums, Version 10, 2
October 2020.
[88]. AEC,
‘Direct
enrolment and update’, AEC website, 13 November 2020.
[89]. There
does not appear to be a requirement under Schedule 3 to verify whether the
voter had already been marked off the certified list, however the AEC notes in
its submission
to the JSCEM inquiry into the 2019 federal election that voters are marked off
the roll during the preliminary scrutiny (p. 27).
[90]. AEC,
Submission 120, 27.
[91]. AEC,
Submission 120, 28; A declaration vote may be ‘partially admitted’ when the
voter completes a House of Representatives ballot paper for the wrong division
(potentially because they have not updated their address on the roll since they
have moved, for example) but the correct Senate ballot paper for the state in
which they are enrolled. The Senate ballot paper is admitted to the count and
the House of Representatives ballot paper is not.
[92]. AEC,
Submission 120, 27.
[93]. AEC,
Analysis
of Informal Voting: 2016 House of Representatives Elections, (Canberra:
AEC, 12 December 2018).
[94]. Without
delving too deeply into statistics, this appears to implicitly suggest a
frequentist (as opposed, for example, to a Bayesian) approach to testing, but
leaves open the threshold of statistical significance, which is often, but not
always, set as being a five per cent chance of making a type I error (that is,
by chance, five times out of 100 you will incorrectly conclude that there is an
effect where there is no effect).
[95]. Explanatory
Memorandum, Electoral Legislation Amendment (Assurance of Senate Counting)
Bill 2021, 14.
[96]. ‘The
Senate Counting Process’, AEC website, 16 July 2021.
[97]. ‘The
Senate Counting Process’, AEC.
[98]. JSCEM,
Report
on the Conduct of the 2016 Federal Election, 23–24.
[99]. Vanessa
Teague, Submission
to Senate Finance and Public Administration Legislation Committee, Inquiry
into the Commonwealth Electoral Amendment (Integrity of Elections) Bill 2021, [Submission
no. 2], 23 September 2012.
[100]. The
AEC has a legislative mandate under paragraph 7(1)(d) of the Act to ‘provide
information and advice on election and ballot matters to the Parliament, the
Government, Departments and authorities of the Commonwealth’.
[101]. AEC,
Voter
Survey: Report, survey conducted for the AEC by Wallace Social and
Market Research, August 2019.
[102]. Electoral
Legislation Amendment (Counting, Scrutiny and Operational Efficiencies) Act
2021.
[103]. Proposed
subsections 396(6) and (7).
[104]. JSCEM,
Report
of the Inquiry on the Future Conduct of Elections Operating During Times of
Emergency Situations, 35.
[105]. ‘COVID-19
and the 2020 ACT Election’, Elections ACT website, 27 August 2020.
[106]. Macquarie
Dictionary Online, ‘Lot’,
accessed 22 November 2021.
[107]. Explanatory
Memorandum, Electoral Legislation Amendment (Contingency Measures) Bill
2021, 12.
[108]. The
AEC notes elsewhere in the submission
(p. 27) that 81 per cent of postal votes issued in the 2019 federal
election were counted, and that 95 per cent of the postal votes that were returned
were counted.
[109]. AEC,
Submission no. 120, 17.
[110]. AEC,
Submission no. 120, 18.
[111]. Damon
Muller, The
2019 Federal Election, Research paper series, 2019–20, (Canberra:
Parliamentary Library, 29 June 2020).
[112]. AEC,
Submission no. 120, 27.
[113]. Explanatory
Memorandum, Electoral Legislation Amendment (Contingency Measures) Bill
2021.
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