BILLS DIGEST NO. 34, 2021–22    23 November 2021

Electoral Legislation Amendment (Assurance of Senate Counting) Bill 2021 and associated Bills

Dr Damon Muller
Politics and Public Administration Section

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.

1 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.

2 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.

3 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.

4 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 Organisation⁴⁵

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

5 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.

6 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.

7 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.

8 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

9 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).

10 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.

11 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

Chart, bar chart Description automatically generatedFigure 1: Source of postal vote applications, federal elections 2010 onwards

Source: Muller 2020, 40.

12 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.

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Notes

[←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.