Updated 21 February 2023
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Dr Damon
Muller
Politics and Public Administration
As part of its consideration of the
Government’s Referendum
(Machinery Provisions) Amendment Bill 2022, the Joint
Standing Committee on Electoral Matters (JSCEM) report stated that the
Government ‘should give serious consideration’ to, among other things:
providing for secure ‘on the day’ enrolment, enabling a
potential new voter to cast a declaration vote that is admitted to the count
once their enrolment is approved and processed. (p. 22)
In its
submission to the JSCEM inquiry, the Australian Electoral Commission (AEC)
stated:
Some state and territory jurisdictions have electoral
legislation that permits voter enrolment ‘on the day’ of voting rather than
entitlement to vote being dependent on enrolment prior to the close of rolls
date. In practice this means that a voter, who cannot be found on the electoral
roll at the point of voting, casts a declaration vote. The vote is then
processed along with their enrolment. Provided they meet all the legislative
requirements to be enrolled, their vote is admitted to the count.
Despite a high rate of enrolment nationally, some cohorts of
electors have lower rates of enrolment. The AEC is working hard to rectify this
and has made great strides in recent years to improve, for instance, the
estimated rate of Indigenous enrolment. However, the Committee may wish to
consider legislation to permit enrolment on the day to maximise enfranchisement
for Australians attempting to cast a vote. (p 4–5)
The AEC noted that this would require legislative change.
Current federal enrolment processes
Electoral enrolment confers entitlement to vote, and the
enrolment processes for federal referendums and federal elections are essentially
the same. Section 4 of the Referendum
(Machinery Provisions) Act 1984 (the Referendum Act) provides
for the entitlement to vote at a referendum. Accordingly, an elector who is
enrolled for (federal) elections is entitled to vote at a referendum. Like an
election there is a ‘close of rolls’ for a referendum, which commences seven
days after the issue of the writ for the referendum (section 9). Anyone who
submits an enrolment form after the close of rolls will not be entitled to vote
in the referendum.
Section 155 of the Commonwealth
Electoral Act 1918 (the Electoral Act) similarly provides for
the close of rolls for a federal election seven days after the issue of the
writ. The close of rolls period has traditionally allowed the AEC to complete
last-minute enrolment processing and the printing of the certified list of
electors.
The requirement for a close of rolls period largely comes
from a time when most enrolment processing was paper-based. The AEC regularly
faced a pre-election torrent of enrolment forms being submitted by people who
had turned 18 or moved and had neglected to update their enrolment until an
election was announced. However this is much less an issue under the
contemporary enrolment processes using online enrolment and Federal
Direct Enrolment and Update (FDEU).
The FDEU program continually and proactively updates electors’
details with an existing enrolment and enrols new electors using trusted data
from other government agencies, such as drivers licence data and Centrelink
data. Electors are notified of the action and only need to respond if something
is wrong. As a result, the electoral roll is continuously updated, reducing the
need for large-scale last-minute changes.
How would election day enrolment
work
Both the Electoral Act (section 235) and the Referendum
Act (section 37) provide for provisional votes. If a voter attends a
polling place and their name is not on the certified list of electors, the
voter may cast a provisional vote. The elector’s ballot is placed in an
envelope with a signed declaration of eligibility, and certain other details
used to establish the elector’s identity.
After the polling, the details on the envelope are checked
against the roll and if the elector is identified, the ballot paper is admitted
to the count. If the elector is not found to be correctly enrolled their vote
cannot be counted. However, the Electoral Act allows for the provisional
vote envelope to be used as a claim for enrolment (essentially, the Electoral
Commissioner declares the provisional vote envelope as an approved
form for a claim for enrolment). While the elector would not be able to
have their vote counted at that election, their provisional vote envelope will
allow the AEC to enrol them for the next election.
Election day enrolment would essentially speed this process
up. The provisional vote envelope would still be used as a claim for enrolment.
The AEC could then undertake the usual enrolment checks and if the voter is
entitled to be enrolled, they will then be added to the roll and their vote
included in the count for that election.
The main complication is that the elector must be able to
provide sufficient details to process a claim for enrolment on their
provisional vote envelope. In general, this means that the elector would be
required to provide a driver’s license, passport number, Medicare number or
citizenship certificate number, or have a person who is already on the roll
confirm the elector’s identity.[1]
Conceivably, some proportion of electors whose vote would be otherwise allowed under
this system would not be able to fulfil these criteria, including those who are
already underrepresented on the roll (such as remote and Indigenous voters).
In evidence
to the JSCEM the Electoral Commissioner noted that election day enrolment
should only be a ‘failsafe’ for those who would otherwise be unable to vote, in
order to prevent a large increase in election day workloads. However, it is
notable that the AEC is publicly discussing this as a policy option.
As noted above, entitlement to vote in federal referendums
is based on federal electoral enrolment. While enacting election day enrolment
by amending the provisional voting provisions of the Referendum Act is
possible, there appears to be no good reason not to do similar for federal
elections as well. However, in recent
evidence to Senate Estimates the Electoral Commissioner said he would like
to see how it went with the referendum first.
Election day enrolment in other
Australian jurisdictions
The FDEU was adopted following the experience of pre-established
systems in NSW and Victoria. Election day enrolment in those states was introduced
as an important savings provision for electors who might have been incorrectly
enrolled using data-matching processes and otherwise lost their vote as a
result.
An AEC report
published in 2013 discusses this:
In Victoria and NSW, election day enrolment (EDE) is seen as
an essential part of the direct enrolment and update strategy. Election day
enrolment provides an opportunity for individuals who have been directly
enrolled or updated to update incorrect details. It also enables individuals
who are not affected by direct enrolment and update who attend at a voting
centre on election day to enrol and vote. This affects the concept of a ‘close
of rolls’ date. The close of rolls is still an essential part of Victorian
electoral administration and communications. The VEC emphasizes the need to
enrol or update enrolment by the close of rolls, and regards election day enrolment
as a savings provision to cater for people who for whatever reason have failed
to either enrol or update their enrolment details in time.
The NSW Electoral Commission has information
about election day enrolment on its website, and notes that to enrol on
election day voters will need to bring a drivers license and in some cases a
passport. The Victorian Electoral Commission, in contrast, does not advertise
election day enrolment on its website. However, section 108 of the Electoral
Act 2002 (Vic.), established election day enrolment as part of the
provisional voting requirements. The Northern Territory also allows election
day enrolment under section 105 of the Electoral
Act 2004 (NT), following amendments
in 2019.
Conclusion
Election day enrolment is not a panacea to the problem of
non-enrolment, but it is a well-tested policy operating in numerous Australian jurisdictions
for over a decade (the NSW version of FDEU commenced in 2009). Within the
current enrolment identity requirements, not everyone attending a polling place
will be able to be enrolled under election day enrolment. However, a legislated
election day enrolment scheme would go some way to further increase voter
enfranchisement.
The AEC’s concerns of additional election day workload is certainly
worth attending to. Accordingly, as implemented in some states, election day
enrolment should not be promoted as an enrolment avenue, but rather kept as a
way of saving potentially uncountable votes.
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