Chapter 2 Analysis of the Bill
Overview
2.1
The Australian Electoral Commission (AEC) estimates that at the end of
2011, the federal enrolment participation rate was 90.2 per cent. This means
that around 1.5 million people who are eligible to vote are not enrolled and
consequently cannot vote. The AEC predicts that this will worsen if the pattern
of the last decade is allowed to continue. The growth in enrolment
participation has not matched the growth in eligible persons.
2.2
The AEC uses a number of strategies to encourage and facilitate
enrolment to help ensure a current and accurate federal electoral roll. Since
its introduction in 1999, the Continuous Roll Update (CRU) program has become
central to the AEC’s maintenance of the electoral roll.
2.3
In relation to changes of address, under the CRU process the AEC will
receive data from other agencies that indicate that an enrolled elector has
changed their address and so is no longer entitled to be enrolled at the
previous address. The AEC communicates with an elector to advise them to update
their enrolment details. However, the AEC cannot update an elector’s address
details without instruction from an elector. Instead, because of the objection
process, the AEC is required to remove the elector from the roll.
2.4
A number of eligible electors fail to enrol. However, many others may
have neglected to update their address details with the AEC and are
consequently removed from the roll. The AEC estimated that of those 1.5 million
missing from the federal electoral roll, 600 000 people have previously been on
the roll and could have voted.
2.5
The Electoral and Referendum Amendment (Maintaining Address) Bill 2011
(the Bill) will enable the Electoral Commissioner to update an elector’s
address details rather than removing them under the objection process.
2.6
The Joint Standing Committee on Electoral Matters (the committee) focused
its discussion on the requirements to enrol and update details, the sources of
data to be used by the AEC to update address details, and privacy concerns. Other
issues were also raised but were not of direct relevance to the Bill.
Requirement to enrol and update details
Background
2.7
For the purposes of federal elections in Australia, an eligible elector
is a person who is:
n 18 years of age or
over;
n an Australian citizen,
or was a British subject on a Commonwealth electoral roll as at 25 January 1984;
and
n has lived at their
current address for at least one month.
2.8
The Commonwealth Electoral Act 1918 (Electoral Act) requires
eligible persons to enrol and to update their enrolment details when they change
address. Section 101 provides that an eligible elector who does not fulfil
these obligations is guilty of an offence and is punishable by a fine of one
penalty point, which is currently $110.
2.9
However, the AEC estimates that 1.5 million eligible electors are not on
the federal electoral roll.[1]
2.10
When questioned by the committee, the AEC advised that no prosecutions
for non-enrolment (not enrolling or not updating address details) had been
pursued in recent years.[2] Instead, the emphasis is
on encouraging enrolment rather than punishing those who have not enrolled or
failed to update their details. This is reflected in subsection 101(7) of the
Electoral Act which provides that once a person has enrolled or updated their
details, proceedings cannot be brought against them for prior failures to do
so.
Analysis
2.11
The AEC advised the committee that:
The evidence suggests that as each year passes by the number
of unenrolled citizens will continue to increase. Significantly, many of these
are people who were enrolled in the past; indeed, the AEC estimates that over
600,000 of the 1.5 million unenrolled have been enrolled before and could have
voted.
In part, this reflects the imbalance of the existing
provisions which allow the AEC to commence action to remove a person from the
roll on the basis of reliable third-party data, which indicates they no longer
reside at their enrolled address but does not allow the AEC to update the same
person's details to an address for which we have information that they do
reside at. [3]
2.12
The Democratic Audit of Australia observed that:
While it is true that enrolling to vote may not appear an
onerous requirement, the sheer numbers of unenrolled Australians make it
evident that the current system is evidently not working.[4]
2.13
This Bill still places the onus on eligible electors to meet their
enrolment obligation, but the AEC would be able to update their address details
rather than relying on a response from the elector to the CRU letter or
removing them from the roll under the objection process.
2.14
The AEC commented that:
...direct update of elector addresses using reliable
third-party information is not only a next logical step in the evolution of
electoral roll administrative practices but also consistent with growing
expectations of many in the community for seamless use of data across government
agencies.[5]
2.15
The Australia Privacy Foundation (APF) opposed the passage of the Bill.
However the APF conceded that ‘the community does indeed expect that government
agencies will move with the times and take advantage of and make available
improved electronic mechanisms’.[6] As an alternative, the
APF argued for a consent-based cross-notification arrangement, in which
individuals could request that their information be passed on to the AEC for
the purposes of updating the roll.[7]
2.16
The APF argued that removing the onus from the elector could compromise
the accuracy of the roll. The APF submitted that:
...there is a risk that allowing enrolment changes from
secondary sources without positive confirmation from the electors concerned
will in many cases lead to a reduction in quality, with electors incorrectly
enrolled, or erroneously removed from the database. By definition, use of
incorrect information will mean that the notices supposedly offered as a
safeguard will not reach the elector who will therefore have no way of
objecting. It seems inevitable that in some cases electors who want to vote
will be disenfranchised – surely a worse outcome than rolls missing a few
electors who have failed to positively confirm change of address?[8]
2.17
The Electoral Commissioner outlined the process to the committee,
indicating that:
...the activity for direct
address update is very similar indeed to the current activity that we have been
undertaking for the last decade on the Continuous Roll Update program. The
processes are much the same. We take data from third-party agencies. We take
that data and match it against our existing electoral roll using computer
systems. We make a determination based on that third-party data in comparison
with the electoral roll as to whether a person is at their latest known
address. We then take action; we test it. In this case or in the current CRU
activity, the letter goes out to the individual. In a direct address update, we
would still send a letter to the person but, where there is no response, we
would take action to update the address. [9]
Conclusion
2.18
All Australians should take responsibility to meet their enrolment
obligations in order to ensure they can participate in selecting their
representatives. The processes to enrol and update enrolment details are not onerous,
with the latter made easier with the means to update online.
2.19
However, it is also reasonable that electors expect some degree of data
sharing between government agencies. It is appropriate for the Electoral
Commissioner to be provided with the flexibility to further simplify the
process for eligible electors, help combat the decline in the enrolment rate,
and improve the currency and accuracy of the roll.
2.20
The emphasis that the AEC places on encouraging and facilitating
enrolment of eligible electors rather than pursuing punishment for
non-enrolment is appropriate.
2.21
Enabling the AEC to update address details will make inroads into saving
the franchise of some of the 600 000 eligible electors who the AEC
estimates have previously been enrolled but are no longer on the roll. This is
particularly important for those who still believe themselves to be on the
electoral roll—as they expected that an update of address details to another
government agency or at the state electoral roll level would translate to the
federal roll—and in cases where they were unaware of their removal under the
objection process.
Data from other agencies
Background
2.22
The AEC outlined the current CRU data matching process, stating that:
Over the last decade the AEC’s CRU program has come to rely
on large and regular volumes of change of address information obtained from
data provided by Centrelink, state and territory motor registry (more recently
via the National Exchange of Vehicle and Driver Information System), and
Australia Post. The process of CRU data matching operates as follows:
n data is matched
against AEC enrolment records to establish whether or not a person is enrolled;
Þ data
relating to specific categories of electors is excluded, e.g. silent electors,
Members of Parliament, eligible overseas electors (and their kin), Antarctic
electors, itinerant electors, and prisoners;
n date of enrolment is
compared against the currency of the data record supplied by the third party to
determine further action;
n address data is
matched against the AEC address register to establish whether or not an address
is valid for enrolment purposes; and
Þ addresses
with no mail service are excluded where no postal address is provided.[10]
2.23
The Electoral Commissioner will be responsible for the selection of
organisations from which the data will be obtained. Mr Killesteyn advised that
the agencies to be used for the update of address details will be Centrelink,
Australia Post and the data from roads and traffic authorities, which is
collected into a single database nationally, NEVDIS.[11]
These are the sources currently used by the AEC.
Analysis
2.24
The APF expressed concern about what it described as the AEC’s practice
of ‘re-purposing’ information from other government agencies to use it for
electoral administration purposes.[12]
2.25
Concerns were also raised about who should be responsible for
determining which organisations are appropriate sources of information.
2.26
In previous parliaments, the committee has expressed similar
reservations. In the context of recommending the AEC have the powers to update
electors’ details, the committee in its report into the 2007 federal election, concluded
that source agencies should require Ministerial approval.[13]
In its report on the 2010 federal election, in the context of adding
electors to the federal roll, the committee recommended that the ‘approval of
such agencies by the AEC should be made by disallowable instrument’.[14]
2.27
The APF argued that data contained in other agency systems may be
unsuitable for AEC purposes and commented that:
The way in which systems are designed, the way in which data
definitions are made of data items like address, like spouse, like child, in
each government agency for each program reflect the needs of that agency and
that program, and they are different in every circumstance.[15]
2.28
In particular, the APF questioned the quality of the sources used by the
AEC, stating that:
Centrelink is merely a funnel for the 100 welfare programs
that are run in Australia, which are formally administered by in the order of
twenty different agencies. So, when we say that there is one Commonwealth
agency involved, there are twenty, and there are 100 programs that are being
sucked in through those Centrelink accesses. The second set is state and
territory government agencies. The mechanics are that the data is acquired from
NEVDIS but that data is sourced and is acquired in the first instance from citizens
by motor registries. The third is a completely different category again, which
is a government business enterprise. We have crossed out to the grey zone of
government in the form of Australia Post.[16]
2.29
The APF also expressed concern about the type of sources that the
Electoral Commissioner may seek to use in the future. The APF commented that:
...at this stage private sector sources are not used but
there is absolutely nothing stopping the Electoral Commissioner from deciding
that he will become a subscriber to Veda Advantage, the credit bureau, and that
he will become a subscriber to AXIOM, the consumer profile aggregator in
Australia and elsewhere, and absorb that data into the electoral roll as well.[17]
2.30
The AEC advised the committee that:
I think the point that underlines the CRU activity and that
will also underline the proposed activity under a direct address update model
is that the third-party data is not accepted at face value. We take the
information, we confirm firstly that the identity of the elector is the same.
We examine the address against our address register, to ensure that it is a
properly enrollable address. Only when we are satisfied as to the veracity of
the information do we then, according to the model in the proposed legislation,
issue a letter to the elector advising of the intention to update the address.
The third-party data—I am happy to indicate to you now—is data we get from
Centrelink, from Australia Post or roads and transport authorities, will be
subjected to veracity checks prior to the AEC taking any further action.[18]
2.31
While the Electoral Commissioner acknowledged that the legislation does
not prescribe the sources to be used, he indicated that:
...at this point it would be our intention, given the
experience and the knowledge that we have with those databases as well as the
comprehensiveness of those databases, to continue to use those that are
available to us.[19]
Conclusion
2.32
A healthy democracy must aim for an electoral roll that is accurate and
maximises the potential for all eligible electors to vote. This Bill provides
the AEC with another mechanism, which will operate alongside its other
activities, to monitor the accuracy of the federal electoral roll.
2.33
The sources proposed to be used as the basis for updating elector’s
address details are already being used by the AEC, and have been tried and
tested in the CRU and objection processes.
2.34
The committee is confident that the Electoral Commissioner will exercise
appropriate discretion in the selection of sources and in setting in place
suitable checks to verify the accuracy of the data received.
Privacy concerns
Background
2.35
In the Government response to the recommendation that this Bill is
implementing, the Australian Government made specific reference to certain
privacy considerations:
Noting that the Commonwealth Electoral Act 1918 requires
all Australian citizens to be enrolled, the Government will ensure that
appropriate privacy protections, including provisions for opt-out where
appropriate, are incorporated into the arrangements to be developed. The AEC
will consult with the Office of the Privacy Commissioner and conduct detailed
Privacy Impact Assessments in the course of developing agreements with trusted
agencies.[20]
Analysis
2.36
While other submitters were supportive of the Bill, the APF opposed the
Bill and raised certain privacy concerns. The APF supported the current requirement
for elector initiated changes and argued that:
...the basis of a positive action by an eligible voter,
should not be abandoned lightly. It is consistent with fundamental privacy
principles, which favour use of personal information only for the purpose for
which it is collected, with exceptions being strictly limited, and a preference
for consent for any secondary use.[21]
2.37
The APF also expressed concern that special categories of people, such
as silent electors, need to be protected, highlighting:
...silent electors or, perhaps more broadly, the needs of
many people to suppress data. I think it is clear from the discussions
previously in the last hearing that the committee is well aware that lots of
people in society have something to hide. In general, everybody has at least
something to hide—some people more than others. For some people it is for
nefarious reasons; for many people it is for reasons not of their own fault and
reasons which the public respects. [22]
2.38
The Electoral Commissioner confirmed that consultation had been
undertaken with the Australian Privacy Commissioner:
We have been in consultation
with the Privacy Commissioner over this particular bill. The Privacy
Commissioner has examined all of the processes that we are currently proposing
to use for the direct address update. The Privacy Commissioner has not raised
any particular issues that should be of concern, primarily because processes
that we are suggesting be adopted for direct address update are exactly the
same as those processes that we currently use for the continuous roll update
program.[23]
2.39
The AEC advised that data relating to specific categories of electors,
such as silent electors, Members of Parliament, eligible overseas electors,
Antarctic electors, itinerant electors, and prisoners, would be excluded from
the address update process.[24]
2.40
The AEC also responded to privacy concerns raised, noting that
Information Privacy Principles 8 and 9 criteria include that the information to
be used is ‘accurate, up to date and complete’ and that information can only be
used where it is ‘relevant’.[25]
2.41
In a supplementary submission, the AEC noted that:
...legislation dealing with the update of enrolment details
from third party sources are already in place in both NSW and Victoria. Both of
these jurisdictions also have privacy regimes. Given the similarity of the
measure contained in this Bill with that which already exists in NSW and
Victoria, the privacy concerns set out in [the APF’s] submission appear to be
overstated. [26]
Conclusion
2.42
Protecting an individual’s privacy is an important consideration when
accessing information from one agency and seeking to use it for another agency’s
purposes.
2.43
The Australian Privacy Commissioner has already examined the methods
that the AEC proposes to use for the direct address update, which are in keeping
with existing AEC roll management processes. The committee also notes the AEC’s
advice that privacy concerns have to some degree already been tested in the
Victorian and New South Wales contexts.
2.44
The state of the roll necessitates the address update measure as a
matter of urgency. It will provide the AEC with greater flexibility to help
abate declining enrolment.
Overall conclusion
2.45
The current state of the federal electoral roll is cause for concern.
One and a half million eligible Australians are missing from the roll,
including 600 000 who had previously been on the roll. Many of these
electors are unaware they are no longer on the roll. This was evident at the
2010 federal election when more than 280 000 people attended polling places and
cast pre-poll, absent and provisional votes which were subsequently rejected
because they were either incorrectly enrolled or not enrolled. This means
hundreds of thousands of wasted votes.
2.46
In Australia’s system of compulsory voting, eligible Australians have an
obligation to enrol and update their address details. Some absences from the
roll are deliberate, for a variety of reasons. Others will be inadvertent; due
to lack of understanding about current arrangements, the expectation that
information will be shared between government agencies or a lack of motivation
to update details when there is no imminent election event.
2.47
Eligible electors must take some responsibility to perform the small
tasks of enrolment and update to help ensure they are able to participate in selecting
their federal representatives. It is also logical and appropriate for the
Australian Government to provide the AEC with the flexibility and legislative
framework to achieve a complete and accurate electoral roll.
2.48
Allowing the AEC to update the address details of already enrolled
electors extends the CRU process by removing the limitation of requiring an
elector to submit the change of address form. It also provides the AEC with
increased flexibility in the objection process, allowing address updates rather
than removing electors from the roll.
2.49
If the AEC had been able to update the address details of enrolled
electors prior to the 2010 federal election, this could have saved many of the
280 000 votes rejected at that election.
2.50
Enabling address updates provides a valuable service to eligible
electors in assisting them to maintain their voting franchise. The AEC will
communicate with the elector to notify them of both the proposed update and its
outcome. These electors will be able to contact the AEC and advise if the
change is incorrect. In most cases, electors can be confident that when
advising Centrelink, road and traffic authorities and Australia Post that their
new address will be available to the AEC and the appropriate changes will be made
to the roll.
2.51
The AEC is already using data from these agencies to encourage new enrolments
and update of enrolment details, and to remove electors from the roll. The
provisions in the Bill provide the AEC with the legislative basis to act to
maintain the accuracy of the roll and preserve an elector’s voting franchise.
Recommendation 1 |
| 2.52 |
That the House of Representatives pass the Electoral and
Referendum Amendment (Maintaining Address) Bill 2011 as proposed. |
Daryl Melham MP
Chair
29 February 2012