Chapter 2

Key issues and committee views

This chapter details the key views and issues raised by stakeholders who submitted to the inquiry. In particular, this chapter considers:
whether it has been established that the introduction of voter identification is warranted;
implementation issues with certain aspects of the bill, including the auditing process and verification of identity; and
concerns about the disenfranchisement of voters by requiring identification.
The chapter concludes with the committee's views and recommendation.

Views on the bill

There was limited support for the bill’s two main aims of auditing and requiring voter identification.1 For example, Mr Wayne Reilly suggested that the bill was important in light of recent events in the US, where ‘better scrutiny and auditing’ by that country’s electoral commission could have counteracted lengthy and costly court proceedings challenging the results.2
However, the majority of submitters to the inquiry voiced concerns with a number of elements of the bill, and questioned whether there was an evidentiary basis to the issues the bill is seeking to address.
In addition, several submitters put forward proposals to amend the bill, noting that the bill’s provisions would not achieve its aims as currently drafted. For example, while supportive of the aims of the bill, Associate Professor Vanessa Teague was of the view that the bill does not meet its goals, and put forward a number of recommendations for amendment, if the bill were to proceed.

Lack of evidentiary support

In its submission to the inquiry, the Australian National Audit Office (ANAO) noted that there was a ‘well-established framework for scrutiny and review’ of elections. This included:
the maintenance of an impartial and independent electoral system by the AEC, which includes ‘conducting electoral events, including federal elections, and ensuring confidence in the electoral roll’;
parliamentary oversight via the Parliamentary Joint Standing Committee on Electoral Matters (JSCEM), which can inquire into the electoral process and the conduct of federal electoral events; and
the reporting of the ANAO to the Parliament on the operations of the executive arm of government, and ‘review or examination of a particular aspect of the operations of the AEC at any time’.3
The Australian Human Rights Commission (AHRC) observed that while the EM to the bill argues that voter identification is needed because of ‘theory and the empirical evidence’, it does not provide ‘any information on the prevalence of voter fraud or how voter identification will address voter fraud’. The AHRC voiced concerns about the bill’s human rights impact and drew on the findings of the AEC which found that:
… not only is the incidence of multiple voting very small, it has also never been larger than the margin in any seat for a federal election. That is, it has never affected the outcome of an election.
Without further information on the prevalence of voter fraud, and noting the detailed evidence provided by the AEC to the JSCEM, the Commission considers the proposed requirement of voter identification is an unwarranted limitation to the exercise of the right to vote. Further, there are a number of effective safeguards already in place to ensure free and fair elections.4
Likewise, Professor Graeme Orr observed that ‘Australian elections have a high level of integrity’, and that there is ‘no culture of trying to steal parliamentary elections in modern Australia’.5
Professor Orr continued that:
The broad ‘integrity’ claim for this Bill is not substantiated. The Explanatory Memorandum does not even try to argue there is an actual integrity deficit. Instead it claims it addresses some vague perceived integrity or trust problem. A need for trust in electoral processes is not unimportant. But where is evidence of a significant lack of trust, linked to the long-standing absence of a voter ID requirement in Australia? Even if there were empirical evidence that a significant subset of electors believe voter ID makes elections more secure, this invokes a somewhat circular claim: the clamour for voter ID by its proponents would be self-fulfilling.6
Professor Anne Twomey also voiced concern that there was ‘no significant of problem of voting fraud in Australia’. Professor Twomey said that Australia was:
… different from most other countries, as it has a system of compulsory enrolment and compulsory voting. This means that any cases of multiple voting or impersonation of other voters are easily detectable and relatively rare. It is my understanding that nearly all cases of apparent multiple voting are resolved as errors in marking off the electoral roll7
Because of this, Professor Twomey questioned whether there was any current need for the bill, and that requiring identification would ‘necessarily result in some people not exercising their right to vote at elections’. She continued that the bill’s measures ‘are unlikely to achieve anything of positive value but may well prevent people from legitimately exercising their right to vote’.8
Similar views were put forward by Dr Bruce Baer Arnold, who suggested that the bill ‘offers an ineffective response to an overstated problem’ of voter fraud. Dr Baer Arnold observed that ‘[h]ighly politicised claims of systemic fraud through impersonation, multiple voting, ballot box tampering have received widespread publicity in the United States despite evidence and have been echoed in Australia’. However, Dr Baer noted:
There is however no hard evidence regarding large-scale multiple voting (as distinct from very small-scale errors in mark-offs by officials).
There is no hard evidence of systemic impersonation.
The expression of misplaced anxieties in ‘the main stream media’ or voicing of conspiracy theories among the echo chamber that is social media are not the basis for law reform. Claims regarding a supposed lack of integrity in voting and proposals for mechanisms to solve the problems should be considered by the Committee on the basis of fact rather than assertion.9 [emphasis in original]
Dr Baer Arnold called for the bill to be rejected, on the basis that there was no ‘authoritative evidence regarding the pervasiveness and severity of supposed impersonation in voting’, and therefore there was ‘no compelling reason to introduce a flawed new identity requirement’.10
Dr Kevin Bonham offered his support for these views and suggested that the bill had a ‘potential for a politically skewed impact on turnout and … it will not be effective against a voter who is determined to cast multiple votes’. Dr Bonham also suggested that the AEC has a ‘stated position of intent against seat outcomes if it is shown that multiple voting could have resulted in an incorrect winner’.11


A number of views were put forward regarding the form and efficacy of potential auditing of election ballots.
The ANAO, which under the bill would have expanded responsibilities in auditing election outcomes, raised a number of concerns about how the provisions of the bill would work in practice. The ANAO made the following points:
the ANAO is mandated to report to the Parliament; it would therefore be ‘unusual and out of step’ for the Auditor-General to report its findings about authorised technology at federal elections directly to the Electoral Commissioner and not the Parliament;
it foresees challenges in testing whether the use of authorised technology produces the same result as would be obtained without the use of the authorised technology;
both the timing and specificity of the audits provided for by the bill would require a significant amount of ANAO resources and would therefore impact on its audit program; and
the proposed audit function would more appropriately be performed as an internal audit by the AEC, ‘in support of the AEC’s mandate’.12
Further, the AHRC noted that it was criminal offence to vote more than once in the same election and argued that this provides a ‘strong, and effective, disincentive against multiple voting’. The AHRC also noted that the AEC already has measures in place to ‘prevent and detect multiple voting’, including the use of electronic certified lists during elections.13
Associate Professor Teague called for a redesign of the Australian Senate process for scanning and counting ballots, to allow for meaningful election scrutiny from candidate-appointed scrutineers—particularly in relation to the transformation of paper ballots into digitised preferences which ‘cannot be checked without access to the ballot papers themselves’. Associate Professor Teague suggested that this was ‘why a post-election audit of randomly selected paper ballots, in the presence of scrutineers, is necessary’.14
Associate Professor Teague noted that the AEC already ‘engaged trusted third parties to examine and test the system’, and that while this had benefits it should not be a substitute for:
… candidate-appointed scrutineering. It is exceedingly difficult to elicit meaningful information about any of these audits…. While it may help to detect and correct some errors and vulnerabilities, no software audit guarantees that the software is perfect, nor that a malicious party has not modified it between the audit and the election.
Associate Professor Teague called for independent observers to ‘double check the count’. The aim of this post-election audit would be to perform this double-checking in the presence of scrutineers, who can ‘verify the results and assess the rate of error’.
Associate Professor Teague called for the bill to be amended to clarify this process and noted that the bill is ambiguous as to whether it requires an audit of the system, or a post-election audit of paper ballots—an important distinction as ‘only the latter gives genuine evidence of an accurate election result’.15
Associate Professor Teague made the following recommendation regarding the bill:
For post-election audits of the paper Senate ballots, adopt wording … explicitly specifying that the AEC must publish the digitized preferences in advance, that a random selection of paper ballots must be chosen, that scrutineers must be allowed to observe their comparison with the digitized preferences, and that this must occur before the expiry of the deadline for petitioning to correct problems.16
Dr Bonham offered his support for the views of Associate Professor Teague, and was in favour of auditing to ‘verify what the actual error rate in the Senate counting process is’. Dr Bonham suggested that:
In addition to general random sampling of ballot papers to check for errors, I suggest that there be an audit of error rates in specific types of ballot papers that are more susceptible to data entry errors.17

Voter identification

Submitters who provided comments on the voter identification provisions of the bill voiced concerns with both the reasoning behind the provisions, and the potential impact voter identification could have on electors seeking to cast their vote.
The AHRC raised concerns with the bill’s proposal to address ‘illegal or multiple voting’, and recommended that Schedule 2 of the bill not be passed. The AHRC said that it was concerned that the bill:
… has been introduced without proper regard to the existing safeguards against multiple voting and their effectiveness, and without proper consideration of the adverse impacts that the Bill is likely to have on participation in elections. In the absence of this kind of analysis, the Bill risks disenfranchising a range of groups of people who may have difficulty in complying with its requirements. As a result, the measures proposed in Schedule 2 of this Bill do not appear to be necessary and proportionate to achieve the aim being sought and could unreasonably limit, and unduly impinge on, a person’s right to vote.18
The AHRC expressed its concern that the bill does not consider other ‘less restrictive alternatives which could be considered to address the relatively small issue of multiple voting’, without requiring mandatory voter identification for all electors.19
Professor Orr was of the view that voter identification in Australia was ‘a solution in search of a problem’, and that requiring voting identification ‘cannot sensibly address any issues we have with sporadic instances of multiple voting’. Further, he contended that ‘increasing hurdles to voting is an odd thing to do in a compulsory voting system’.20
Associate Professor Teague expressed concern that the clauses of the bill relating to voter identification could ‘actually make elections less secure, by raising the risk that eligible people are wrongly turned away’. She continued that:
Excluding eligible voters is as much of a security failure as including ineligible ones, with profound implications for the foundation of our democracy.21
Similarly, Dr Baer Arnold observed that the bill does not address ‘legitimate concerns expressed over the past two decades regarding exclusion [from the voting process] of people escaping domestic violence, wary about stalking, with disabilities, or otherwise marginalised’.22
Professor Anne Twomey pointed to the historical use of voter identification in other countries to ‘prevent or deter certain groups in society from voting, with the consequential effect that legislative bodies are elected by a less representative sector of the people’. Even with provisions to better support disadvantaged and remote Indigenous electors in providing proof of identification, Professor Twomey noted that:
… the additional procedural burden, the effort required, the confusion that it can create and the message that it sends of being ‘suspect’ or unwanted, may be enough to suppress the vote.23

Integrity of documents

In considering the documents which the bill proposes as confirming proof of identity, Associate Professor Teague observed that some of the included documents could be easily falsified, and therefore the bill did not strike ‘the right balance between fraud prevention and accidental exclusion’. Associate Professor Teague also made the important point that:
… for those with limited technical skills, reduced access to technology, or insecure housing, there might be no easy way to acquire any of the accepted documents, even when the person is an eligible voter.24
Similarly, Dr Baer Arnold observed that legislation currently does not require AEC officials to have expertise in ‘document forensics’, and that was ‘salient for the bill’s identity document requirements given that forgery of several of the identity documents is trivial’. Further, Dr Baer Arnold made the point that the bill and its explanatory material was:
… silent as to whether the identity documents must be in hardcopy or digital formats. That is salient given that many people have chosen to rely on digital rather than postal communication, accordingly receiving rates, utility, phone, bank and other accounts by email or the web through mobile phones and other digital devices. Their proof of identity under the Bill will be on their phone, in itself a readily subverted proof.25
The AHRC echoed these views, questioning the lack of clarity in the bill about whether electronic documents would be accepted, and whether voting officers would need to determine if a document was genuine.26
Issues with the form of the proof of identity as listed in the bill were also raised by Professor Twomey, who noted that the definition of ‘proof of identity’ was ‘peculiar’, because:
… some of the forms of identity are directed at a person’s address (eg utility bills) whereas others are addressed at a person’s visual appearance (eg photo ID cards, licences, passports). This raises the question of whether these measures are directed only at determining if a person is not who they claim to be (in which case a photo ID is relevant) or are directed at electoral fraud involving people claiming to vote in an electorate where they do not live (in which case ID involving an address is relevant).27
Professor Twomey also drew attention to the fact the bill’s identification requirements do not extend to postal voting, ‘leaving this potential fraud pathway unaffected’.28

Administrative issues

Professor Orr noted a number of administrative issues in implementing the bill if it was enacted, including:
a resourcing burden on the AEC, including an unknown financial cost;
a slowing down of in-person polling (which would be particularly unwanted in the current circumstances with COVID-19);
inconsistency in the application and administration of accepting proof of identity documents; and
the discouragement of people from voting who may think they do not have appropriate identification documents.29
Professor Twomey made similar points in suggesting that a practical effect of the bill would be significant delays at polling places and potentially increased election costs, ‘as each person produces identification and it is assessed by the voting officer’. Professor Twomey suggested that the identification provision could impose:
… increased and unnecessary pressure on poll clerks to make significant judgement calls about whether a person can make an ordinary vote. It is not hard to imagine that in some cases persons who are rejected for failing to produce ID might become angry or even violent. 30
Anomalies and inconsistencies relating to proof of identity requirements in the bill were also raised by Professor Twomey, who provided several examples of when providing proof of identity would be problematic:
They include the person who loses their wallet on, or shortly before, polling day, the person who has had their ID papers destroyed in a bushfire or flood, the person who is travelling and does not have the requisite documents, the student living at home who does not pay utility bills or have a driver’s licence, the people who simply forget to bring ID with them to the polling booth and are turned away, as well as homeless people who do not have, or cannot keep with them, relevant documentation and do not have the connections or initiative to obtain a community identification document.31

Committee views

The committee believes the transparency and integrity of the Australian electoral system is of vital importance, and acknowledges the existing administrative, auditing and compliance frameworks available to the AEC from the ANAO and JSCEM.
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.
While the committee acknowledges that appropriate auditing processes could provide additional assurances to Australians regarding the transparency and integrity of electoral events, it is not clear that the mechanisms proposed in this bill are the most appropriate way to achieve that aim. This conclusion is informed by submissions from the ANAO and other submitters.
As noted in their submission, the ANAO has a responsibility to report its findings directly to the Parliament. A provision which would require the ANAO to report directly to the AEC in relation to audits of ‘authorised technology’ would be an unusual step for the organisation to undertake.
As mentioned by the AHRC, there are existing scrutiny measures in place which ensure the integrity of federal elections, including the detection by the AEC of the rare occurrence of multiple voting, such as Electronic Certified Lists (ECLs) and the recently passed provisions relating to ‘designated electors’. These existing measures already act to complement the stated aims of this bill’s proposed voter identification measures.
While the committee acknowledges that the bill is seeking to strengthen the integrity of elections, and notes the JCSEM’s support for voter identification laws in principle, there remain a number of administrative issues which are raised by the bill but not properly addressed by its provisions or explanatory material.
As noted in submissions to the committee, it would appear that the requirement to produce identification at voting places does not clearly establish whether digital forms of identification, such as the ‘New South Wales Digital Driver’s Licence’ would be supported under the proposed model.
Likewise, the bill is unclear as to how ‘community health and welfare workers’ are to be identified, and how such issuers are to discern whether individuals meet the criteria to be issued a ‘community identity document’ for the purposes of voting.
In light of these concerns raised about the bill, the committee recommends that the bill is not passed.

Recommendation 1

The committee recommends that the Commonwealth Electoral Amendment (Integrity of Elections) Bill 2021 not be passed.
Senator Claire Chandler

  • 1
    See, for example, Mr Axel Brendel, Submission 3; Mr Peter Kirby, Submission 4; Mr Wayne Reilly, Submission 7.
  • 2
    Mr Wayne Reilly, Submission 7, p. 1.
  • 3
    Australian National Audit Office, Submission 10, pp. 1-2.
  • 4
    Australian Human Rights Commission, Submission 8, p. 3.
  • 5
    Professor Graeme Orr, Submission 1, p. 1.
  • 6
    Professor Graeme Orr, Submission 1, p. 2.
  • 7
    Professor Anne Twomey, Submission 6, p. 2.
  • 8
    Professor Anne Twomey, Submission 6, pp. 2, 5.
  • 9
    Dr Bruce Baer Arnold, Submission 5, p. 1.
  • 10
    Dr Bruce Baer Arnold, Submission 5, p. 3.
  • 11
    Dr Kevin Bonham, Submission 9, p. 1.
  • 12
    Australian National Audit Office, Submission 10, p. 2.
  • 13
    Australian Human Rights Commission, Submission 8, pp. 2-3.
  • 14
    Associate Professor Vanessa Teague, Submission 2, p. 2.
  • 15
    Associate Professor Vanessa Teague, Submission 2, p. 3.
  • 16
    Associate Professor Vanessa Teague, Submission 2, p. 4.
  • 17
    Dr Kevin Bonham, Submission 9, p. 2.
  • 18
    Australian Human Rights Commission, Submission 8, p. 1.
  • 19
    Australian Human Rights Commission, Submission 8, p. 3.
  • 20
    Professor Graeme Orr, Submission 1, p. 1.
  • 21
    Associate Professor Vanessa Teague, Submission 2, p. 5.
  • 22
    Dr Bruce Baer Arnold, Submission 5, p. 3.
  • 23
    Professor Anne Twomey, Submission 6, pp. 1-2.
  • 24
    Associate Professor Vanessa Teague, Submission 2, p. 5.
  • 25
    Dr Bruce Baer Arnold, Submission 5, p. 2.
  • 26
    Australian Human Rights Commission, Submission 8, p. 5.
  • 27
    Professor Anne Twomey, Submission 6, pp. 2-3.
  • 28
    Professor Anne Twomey, Submission 6, p. 3.
  • 29
    Professor Graeme Orr, Submission 1, p. 3.
  • 30
    Professor Anne Twomey, Submission 6, p. 4.
  • 31
    Professor Anne Twomey, Submission 6, p. 3.

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