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Chapter 2 Issues in the Bill
Overview
2.1
The Electoral and Referendum Amendment (Improving Electoral
Administration) Bill 2012 (the Bill) introduces a suite of measures in response
to seven recommendations of the committee’s report The 2010 Federal
Election: Report on the conduct of the election and related matters.[1]
2.2
In brief, the measures introduced by the Bill will:
- set out the
procedures to be followed when a ballot-box is opened prematurely (Recommendation
9);
- remove the
requirement for an applicant for a pre-poll ordinary vote to complete and sign
a certificate (Recommendation 10);
- provide that pre-poll
voting cannot commence earlier than 4 days after the date fixed for declaration
of nominations (Recommendation 11);
- bring forward the
deadline for applications for postal votes by one day (Recommendation 15);
- provide for further
fixed periods of time to complete inquiries into objections against a proposed
redistribution of electoral boundaries (Recommendations 29 and 30);
- allow the
Commissioner of Taxation and other taxation officers to provide some forms of
taxpayer information to the Australian Electoral Commission with a view to
maintaining the veracity of the roll of electors (Recommendation 3); and
- make a number of
related minor and technical amendments.
2.3
During the inquiry into the Bill, issues arose regarding the exclusion
of ballots from the poll if a ballot box is opened prematurely, the new
pre-poll voting arrangements, and the use of taxpayer information by the AEC to
update the roll. These issues are discussed in this chapter.
Premature opening of a ballot box
Background
2.4
The bill sets out new procedures to be followed if ballot boxes are
opened before the close of the poll, other than in accordance with the Commonwealth
Electoral Act 1918 (the Electoral Act). In such a circumstance, the ballots
in these boxes will be sealed in a parcel to be given to the Divisional
Returning Officer (DRO) and not scrutinised. The bill makes equivalent
amendments to the Referendum (Machinery Provisions) Act 1984 (the
Referendum Act) and these new procedures will also apply to polls taken in
Antarctica.
2.5
The AEC states in its submission to this inquiry that ‘under the
Electoral Act, it is lawful to open a ballot box containing declaration votes
before the close of polling in certain circumstances.’[2]
The AEC stated:
…subsection 266(1) of the Electoral Act currently allows a
Divisional Returning Officer (DRO) to conduct a preliminary scrutiny of
declaration votes in envelopes from the last Monday before the close of poll.
It follows that, in order for a DRO to conduct a preliminary scrutiny, the ballot
box must be opened.[3]
2.6
The AEC further notes in this regard however that ‘because pre-poll
ordinary votes do not need to go through preliminary scrutiny processes, there
is no requirement for these ballot boxes to be opened until after the close of
polling, when the counting (further scrutiny) can commence’.[4]
2.7
At the 2010 federal election, ballot boxes containing pre-poll ordinary
votes were opened prematurely at pre-poll voting centres (PPVCs) at Oaklands
Park in the division of Boothby (SA) and at Blackwater and Emerald in the
division of Flynn (Qld).[5]
2.8
The AEC notes that the term ‘premature’in this case means:
- for ballot boxes
containing any ordinary votes – opened before 6 pm on polling day; and
- for ballot boxes
containing only declaration votes – opened other than in accordance with the
DRO’s direction in relation to scrutiny under subsection 266(2) of the
Electoral Act, before the Monday prior to polling day.[6]
2.9
As specified in part XVA of the Electoral Act, ballot boxes at PPVCs must
be sealed at the close of voting each day. AEC handling procedures stipulate
that the security seal number must be entered on the ‘record of seals’ page,
signed, and countersigned by a witness. If the ballot box is to be used on
subsequent days, it must be reactivated using the following steps:
- show the sealed box
to all people present;
- check all seal
numbers to see that they match the record of seals page;
- sign the entry on the
record of seals page certifying the number of the seals on the ballot box;
- ask a person to check
the seals and sign as witness;
- cut and remove the
plastic seal from the hinged flap to uncover the slot in the lid; and
- retain the broken
seal to return to the DRO.[7]
2.10
The AEC also stipulates in its procedures handbook for the
Officer-In-Charge (OIC) that ‘a ballot box is not a secure container; it should
not be left unattended in public view at any time, even when sealed.’[8]
These procedures further stipulate that:
If ballot boxes containing votes need to be kept overnight and
there are inadequate secure storage facilities on-site, you may be able to
obtain permission to use security facilities in establishments such as a bank,
post office or police station.[9]
2.11
The AEC procedures further stipulate that the OIC of a voting centre
that is also conducting the scrutiny after close of polling on election day, ie
conducting the scrutiny of pre-poll ordinary votes, must:
- ensure that there are
no voters in the polling centre when the ballot box is opened;
- before opening the
ballot box must check the seals in the presence of polling officials and
scrutineers;
- the OIC and a witness
must sign the ‘record of ballot boxes’ and ‘security seals’ in the pre-poll
voting return; and
- note any
discrepancies in the ‘report on miscellaneous matters’ in the pre-poll voting
return.[10]
2.12
The AEC engaged a former Electoral Commissioner, Mr Bill Gray AM, to
undertake an urgent examination of the facts surrounding the incidents in
Boothby and Flynn and to report his findings and recommendations. The full text
of this report is at Appendix C. The AEC advises that ‘Mr Gray provided three
recommendations, all of which have been implemented’.[11]
The AEC stated:
Key elements of the AEC's actions to implement the
recommendations are as follows:
- Training materials
have been released for all AEC staff that explain the circumstances that led to
the votes being excluded, and which detail the correct procedures to be
followed when ballot boxes are used at polling.
- Training materials
for pre-poll voting staff highlight the importance of ballot boxes remaining
sealed until they are legally authorised to be open. To supplement this
training, more robust ballot box seals have been bought and labels have been
produced to go on pre-poll ballot boxes, to alert staff that the boxes cannot
be opened early. Officer-In-Charge Returns have been modified to allow the
Divisional Returning Officer (DRO) to more actively monitor how ballot box
seals.[12]
2.13
The AEC further notes in relation to the incidents at Boothby and Flynn that
‘following receipt of legal advice from the Australian Government Solicitor
[included at Appendix D], the ballot papers contained in those ballot boxes
were excluded from the count’.[13] The AEC stated:
In its subsequent consideration of the matter the three
person Electoral Commission noted that whilst the AEC had external legal advice
supporting the exclusion of the ballot papers, following the outcome of a
report into the incidents by former Electoral Commissioner, Mr Bill Gray AM,
the legal basis for the exclusion was in need of further clarity.[14]
2.14
The AEC submitted previously to the 2010 federal election inquiry that
the Electoral Act should be amended to provide that ballot boxes not be opened
other than in accordance with the Act. The AEC asserted however that a savings
provision should be included if ballot boxes were opened prematurely as a
result of an official error, stating that:
…the Commonwealth Electoral Act and the Referendum
(Machinery Provisions) Act 1984 should be amended to specifically provide
that a ballot box may not be opened before the close of polling other than in
accordance with the provisions of the Commonwealth Electoral Act, and that a
savings provision in the event of an official error be included.[15]
2.15
The committee recommended in its 2010 federal election report that the
Electoral Act be amended, wherever appropriate, to provide that a ballot box
may not be opened before the close of polling other than in accordance with the
relevant provisions of the Act (Recommendation 9). The committee did not accept
in its 2010 report however that a savings provision is necessary stating that
‘…the AEC must ensure that circumstances such as those that occurred in Boothby
and Flynn do not reoccur.’[16] There is no savings
provision in the Bill.
Analysis
2.16
The AEC submits that the Bill ‘clarifies the legislative ambiguity
identified in 2010 [relating to the Boothby and Flynn incidents] to ensure that
there is certainty and consistency in the manner in which all votes are
handled.’[17] The AEC commented that
‘the proposed amendment also reinforces the existing principle that there is a
general need to ensure that ballot boxes remain unopened until they are to be
opened for a lawful purpose’.[18]
2.17
The Electoral Commissioner advised the committee that the external legal
advice received in relation to the incidents at Boothby and Flynn was that ‘…
it would be prudent—and that was the phrase that was used—to exclude the
ballots’.[19] The Commissioner went on
to state however that:
…it was not necessarily clear that that was the appropriate
action…The commission thought it was important for the law to be clarified
rather than simply relying on prudence. In this case the suggestion was that
the discretion as to whether the ballots should be included or not should be
taken away from the Electoral Commission and made clear in the Act.[20]
2.18
The Commissioner commented further on the issue of the unlawful opening
of ballot boxes stating that the Bill ‘makes it clear in the Act that the
ballot[s] should be excluded’.[21]
2.19
Electoral Reform Australia expressed concerns about the exclusion of
ballots under this provision of the Bill asserting that ‘the first response to
any inappropriate action during the conduct of any election should be to
maintain, as far as possible, the fundamental right of the voter to have their
vote counted’.[22] Electoral Reform
Australia stated:
…a better response to this issue – and one that will have an
outcome more consistent with the policy of electoral inclusion – is to grant a
discretion to polling officials to accept or exclude ballots from incorrectly
opened ballot-boxes.[23]
2.20
Electoral Reform Australia submitted in relation to handling prematurely
opened ballot boxes:
The prematurely opened ballot box should be resealed, kept
separate and not counted. A report outlining the details of the event should be
submitted by the Booth Returning Officer to the District Returning Officer for
his or her consideration. Party scrutineers should be asked if they wish to
submit supplementary reports and if they do these should also be included with
the report to the District Returning Officer. Having assessed the incident, the
Returning Officer should make a decision but should start with the presumption
that ballot papers should be included rather than excluded.[24]
2.21
During the hearing, Electoral Reform Australia reiterated this view, commenting
that ‘we believe that it is a fundamental right of citizens to have their vote
counted and we think that the measures proposed are excessive and heavy-handed’.[25]
Electoral Reform Australia stated:
We would prefer to see discretion given to the district
returning officers to assess the problem and to address it in a manner that
enables as many votes as possible to be included in the ballot paper. We think
that you should start with the provision that votes should remain included
before you start excluding them.[26]
2.22
FamilyVoice Australia also expressed concerns that the automatic
exclusion of ballots ‘provides an opportunity for some miscreant to exploit
that situation and deliberately tamper with a box of votes that the person
considers might favour their objective’.[27] FamilyVoice Australia stated:
…certainty is bad because certainty opens an opportunity for
fraud. If someone with malicious intent knows that the votes from a particular booth
are likely to favour a candidate that they do not want, they can tamper with
the box and have the votes in it excluded…If you leave it to the judgment of
either the DRO or the Court of Disputed Returns then that does not open a
sure-fire method of fraud.[28]
2.23
There was further discussion of this issue at the public hearing in support
of this position:
Mrs BRONWYN BISHOP:…if you have someone who is
unscrupulous and has access to boxes of votes, and they know where a box of
votes is coming from and they know that a particular polling place could be
advantageous to a particular candidate—and we are in a marginal seat—by opening
that box they could knock out all of those votes and totally change the outcome
of that particular seat and perhaps the entire election.
That actually encourages someone, if they wish to act in a
dishonest way, to tamper with the box and have those votes not counted, which
can change the outcome of that seat and of an election. We are not clarifying
the law; we are not making it better; we are making it worse.[29]
2.24
The AEC submitted in relation to affected ballot papers under this
provision however that it may ’examine the ballot papers to determine whether
to refer the matter to the Court of Disputed Returns if the affected votes
could have changed the outcome of an election in any House of Representatives
seat or a Senate result’.[30]
2.25
The Electoral Commissioner also informed the committee that ‘even under
this provision—if it went through—the votes might be excluded but that would
not necessarily exclude further action in the Court of Disputed Returns’. [31]
2.26
The AEC notes that ‘any savings provision will of necessity have the
potential to delay the declaration of the poll in any Division and the
associated State/Territory Senate election. The AEC stated:
As the current practice is that all the State issued Senate
writs must be returned prior to the writs to the Governor-General… such action
will also delay the return of the writs for both the House of Representatives
and the Senate.[32]
2.27
The AEC further stated:
While noting the above potential delays, the AEC notes that
the existing processes that are in place for dealing with reserved ballot
papers after a recount (see sections 279B and 281 of the Electoral Act) may
provide a useful precedent that could be adapted to provide for a savings
clause. The reserved ballot papers process includes that decisions made about
the formality of ballot papers are made by the relevant Australian Electoral
Officer (AEO).[33]
2.28
The AEC further commented on processes for a possible savings provision,
stating that:
A possible vote savings measure could include the following
elements:
- the polling official
is to quarantine any prematurely opened ballot box and secure its contents;
- the polling official
is to provide a report to the DRO about what occurred including the details of
any witnesses and any other relevant information;
- the polling official
is to provide the report and the prematurely opened ballot box including its
contents to the DRO;
- the DRO will examine
the ballot box and remove the contents which are to be placed in a parcel which
is to be clearly marked so as to be quarantined from other ballot papers;
- the DRO will forward
the ballot box and contents to the AEO together with the polling officials
report and any other relevant information;
- the AEO will consider
the material forwarded by the DRO and make a decision as to whether the ballot
papers (or envelopes containing declaration votes as the case may be) can be
included in the scrutiny;
- the AEO must include
the ballot papers or envelopes containing declaration votes in further scrutiny
unless there are facts that indicate that the ballot papers contained in the
prematurely opened ballot box have been fraudulently altered or otherwise
interfered with so as not to reflect the voters' intentions;
- the AEO will advise
all relevant candidates of the outcome of the AEO's consideration of the
material forwarded by the DRO prior to the expiration of the time period for
the lodging of a petition of the Court of Disputed Returns; and
- the advice of the AEO
will include a separate count of the ballot papers contained in the prematurely
opened ballot box and the ballot papers will be parcelled and clearly marked to
be separate from the other ballot papers that have been included in scrutiny
and the count.[34]
2.29
The AEC noted in relation to the last of these measures mentioned above
that it may be ‘further refined to consist of a process for votes that the AEO
determines are to be included in the scrutiny, and one for those votes that are
determined to be excluded from the scrutiny’. The AEC also commented that ‘a
vote savings provision would have to account for the possibility that ballot
boxes, in certain circumstances (for example, mobile polling), may contain
votes from more than one division’.[35]
2.30
The AEC concluded that:
The above possible savings measure provides a framework which
recognises the seriousness of what has taken place by assigning to the relevant
AEO the assessment and decision of whether ballots should be included in the
count based on a report from the DRO, and the importance of preserving the
ballot papers in a manner that is transparent and which can be used by any
affected person to lodge a potential petition with the Court of Disputed
Returns.[36]
2.31
The penalties for ballot tampering were discussed at the public hearing.
The AEC informed the committee regarding the penalties in the Electoral Act for
deliberate ballot box tampering that ‘if it is an AEC officer, it would be a
$1,000 fine’.[37] The AEC further noted
that ‘the normal offences for AEC officers are in section 324. There are ones
for tampering with votes, that is a separate penalty.’[38]
2.32
The AEC advised the committee that for a citizen tampering with a ballot
box:
That is imprisonment for six months. That is section 339. It
says:
A person shall not:
(d) fraudulently put any ballot paper or other paper in
the ballot-box; or
(e) fraudulently take any ballot paper out of any polling
booth or counting centre; or
(g) supply ballot papers without authority; or
(h) do an act that results in the unlawful destruction of,
taking of, opening of, or interference with, ballot-boxes or ballot papers.
Penalty: Imprisonment for 6 months.[39]
2.33
The issue of whether the penalties for ballot box tampering by an AEC
official differ from the penalties that a person outside of the AEC would face
for this offence was also discussed:
ACTING CHAIR: The point I was trying to make was: is
it a bigger offence for somebody outside of the commission to tamper with a
ballot box compared with if it is by someone in the commission? What would you
say—is it more serious?
Mr Pirani: That is a question of judgement that I will
leave.
ACTING CHAIR: Do you have further questions on that,
Mrs Bishop?
Mrs BRONWYN BISHOP: I do not know—I was just wondering
whether you could read section 324:
A person who, being an officer,
contravenes:
(a) a provision of this
Act for which no other penalties is provided …
Well, there is another penalty provided: it is six months in
jail.
Mr Pirani: That is an argument, Mrs Bishop. I
certainly would not rule that out. If I was doing this referral to the AFP or
to the DPP I would be pleading both. You are right.
Mrs BRONWYN BISHOP: So maybe it would be a good idea
to amend the act to make it quite clear, wouldn't it?
Mr Pirani: To make them both the same?
Mrs BRONWYN BISHOP: Yes.
Mr Pirani: I will take that on board.[40]
Conclusion
2.34
The Bill will remove discretion from the AEC in relation to the
exclusion of ballots from scrutiny if ballot boxes are prematurely opened.
2.35
The committee asserted in its 2010 federal election report that there should
be no savings provision if ballot boxes are opened unlawfully, whilst recognizing
the seriousness of the consequences for voters who would otherwise have had
their votes counted. It was the committee’s opinion at that time that the focus
in future elections must be to prevent such breaches from reoccurring.
2.36
Having carefully considered the evidence in this inquiry, the committee is
now of the view that the Bill should incorporate a vote savings provision if a ballot
box is opened prematurely by an official or otherwise handled unlawfully and
there is no evidence of tampering with ballot papers.
2.37
The AEC recommended to the 2010 federal election inquiry in relation to
prematurely opened ballot boxes that there be a savings provision in the event
of an official error.[41] However, this may not prevent
tampering with a ballot box in an attempt to exclude votes that may favour a
particular candidate.
2.38
The vote savings provision in the Bill should therefore apply to the
unlawful handling of a ballot box by any person. Votes should only be excluded
from scrutiny if there is evidence of tampering such as the altering or removal
of genuine ballots, or the addition of fraudulent ballots to a ballot box. The
AEC must however reinstate ballots to the count if there is no indication that
the ballot papers have been tampered with in any way.
2.39
The committee agrees with Electoral Reform Australia that decisions
regarding a prematurely opened ballot box should start with the presumption
that ballot papers be included rather than excluded. Electoral Reform Australia
also state that a prematurely opened ballot box should be resealed, kept
separate and not counted. However, the committee prefers the possible vote
savings measure submitted to this inquiry by the AEC (paragraph 2.28) which
provides that the votes will be counted in a separate process by the AEO. This
measure will also apply to the unlawful handling of a ballot box by any person
and not just an election official.
2.40
The elements of the possible vote savings measure proposed by the AEC
should be incorporated in the Bill. This will provide an appropriate balance
between the need to protect both the enfranchisement of voters and the
integrity of the electoral process. The advice of the AEO that forms part of
this possible vote savings measure should be provided in a timely manner.
2.41
The Electoral Act lacks clarity on whether the penalties faced by an electoral
official who deliberately and unlawfully interferes with a ballot box or ballot
papers are the same as the penalties that would be imposed on a member of the
public for this offence. The Electoral Act should be amended to explicitly
state that an electoral official is subject to the same penalty as any member
of the public who is found guilty of tampering with a ballot box or ballot
papers.
Recommendation 1 |
2.42 |
That the House of Representatives
and the Senate pass the Electoral and Referendum Amendment (Improving
Electoral Administration) Bill 2012 after introducing:
- a
vote savings measure to the procedures to be followed if ballot boxes are
opened prematurely. This vote savings measure should incorporate the elements
proposed by the AEC to this inquiry and provide that ballot papers that have
not been tampered with in any way must be reinstated to the count but
otherwise excluded. This savings measure should apply at any stage of the
scrutiny to a ballot box that has been unlawfully handled by any person; and
- an
amendment to the Commonwealth Electoral Act 1918 explicitly stipulating
that any electoral official who deliberately and unlawfully interferes with a
ballot box or ballot papers be subject to the same penalty as any other
person who commits this offence.
|
Pre-poll voting arrangements
Background
2.43
The bill provides that applicants for a pre-poll ordinary vote will no
longer need to complete and sign a certificate. The bill also provides that
pre-poll voting cannot commence earlier than four days after the declaration of
nominations for an election or by-election.[42] This will prevent any
pre-poll voting from taking place before the Monday, 19 days before polling
day.
2.44
These provisions implement Recommendations 10 and 11, respectively, of
the committee’s report on the 2010 federal election.[43]
2.45
The AEC submitted to the 2010 federal election inquiry that the practice
of requiring electors to complete and sign a declaration when casting ordinary
votes was an unnecessary step. The AEC suggested that removing this requirement
could potentially speed up the issuing process, noting that written
declarations are no longer required in a number of state and territory
jurisdictions, with no issues of integrity having been reported.[44]
2.46
The AEC also recommended changing the timetable for the commencement of
pre-poll voting in its submission to the 2010 federal election inquiry, citing
logistical difficulties in distributing more than
43 million ballot papers along with Senate group voting ticket booklets under
current arrangements.[45]
Analysis
2.47
The 2010 federal election was the first to have pre-poll ordinary
voting. The committee notes in its report on the 2010 election that despite the
mishandling of pre-poll votes in Boothby and Flynn, pre-poll ordinary voting
proceeded without incident in all other locations.[46]
2.48
The AEC continues to support the removal of the requirement for a
pre-poll ordinary voter to complete and sign a certificate noting that:
… [this] will speed up the vote issuing process and provide
efficiencies in polling place management. The AEC is of the view that electoral
integrity is not impacted by removing the requirement to sign a pre-poll
certificate.[47]
2.49
The AEC further states that ‘this proposed amendment would align the
Commonwealth with a number of state and territory jurisdictions which require
only a verbal declaration of entitlement rather than a signed certificate.’[48]
2.50
FamilyVoice Australia expresses concerns with the provision to remove
pre-poll certificates asserting that ‘pre-poll ordinary voting has so far only
been used at one federal election so it is premature to vary the procedures
without good reason.’[49] FamilyVoice Australia
stated:
The Australian Electoral Commission’s view that requiring a
voter to sign a declaration that they are entitled to a pre-poll vote is
“unnecessary” is not persuasive. Dispensing with the requirement for pre-poll
voters to sign a certificate confirming their entitlement to a pre-poll vote,
could encourage other voters to misuse this option for trivial reasons, such as
avoiding queues on polling day.[50]
2.51
On the provision of the Bill that moves the commencement date for
pre-poll voting back by one day, the AEC comments that this ‘provides an
appropriate balance between ensuring reasonable timeframes for the logistics of
ballot paper production, and providing timely and convenient early voting
facilities for qualified electors’.[51] The AEC stated:
…these amendments provide for processes that are both
administratively sound and elector-centric in nature, and appropriately
accommodate the potential for increasing elector reliance on pre-polling
arrangements.[52]
2.52
The Electoral Commissioner informed the committee in relation to this
amendment that:
This is simply adding a day before the commencement of the
polling period to reflect the fact that we are now in a position where, from
the close of nominations on Thursday through to the first opening of polling,
we have to print millions of ballot papers and get them distributed to pre-poll
centres. This is simply about giving us that extra day. The number of ballot
papers being printed is increasing every election.[53]
2.53
FamilyVoice Australia argues however that ‘this timetable is impractical
as it does not allow sufficient time for the printing of ballot papers’.[54]
FamilyVoice Australia asserts that:
Election timetables can vary such that the period between the
declaration of nominations and polling day can be as short as 22 days or as
long as 30 days.[55]
The Opposition recommendation that applications for a
pre-poll vote open no sooner than 12 days prior to polling day is appropriate.[56]
Conclusion
2.54
The removal of the requirement for a pre-poll ordinary voter to complete
and sign a certificate was recommended by the committee in its 2010 federal
election report and continues to be supported by the committee. The committee
agrees with the AEC that this amendment will improve efficiencies in polling
place management and not impact on electoral integrity.
2.55
The requirement in the Bill that the earliest time at which pre-poll
voting can commence be the Monday, 19 days before polling day, is also an
appropriate provision that the AEC supports and was recommended by the
committee in its 2010 federal election report.
Use of taxpayer information
Background
2.56
The Bill amends the Taxation Administration Act to allow the
Commissioner of Taxation and other taxation officers to provide some forms of
taxpayer information to the Australian Electoral Commission for the purposes of
administering the Electoral Act and Referendum Act.
2.57
Subject to a range of specific exceptions to facilitate efficient and effective
government administration and law enforcement, it is an offence for taxation
officers to record or disclose protected information.
2.58
Item 53 of the Bill introduces an exception that will allow the ATO to
provide otherwise protected information (such as the names and addresses of
taxpayers) to the AEC to maintain the veracity of the electoral roll. However,
this exception will not apply to information collected by the ATO before this
provision comes into effect.
2.59
The EM states that:
Item 53 gives effect to recent amendments to the Electoral
Act that enable the Electoral Commissioner to directly update or transfer a
person’s enrolment without claim or notice from the person and to enrol an
unenrolled person without claim or notice from the person (sections 103A and
103B).[57]
2.60
The committee states in its 2010 federal election report that ‘if the
ATO were permitted to share enrolment relevant data with the AEC it would
provide a genuine and lasting improvement to roll maintenance processes and
roll integrity.’[58]
Analysis
2.61
The AEC reiterated in its submission to this inquiry that ‘some 1.5
million, or nine per cent, of eligible electors are not enrolled to vote. Approximately
one-third of these missing electors are 18 to 25 years of age.’[59]
The AEC states that:
…the administrative practices used to maintain the roll have
evolved over time, as permitted by technology and legislative change.[60]
The proposed changes to the Taxation Administration Act
identified in this Bill at item 53 will simply add the Electoral Commissioner
to the list of Commonwealth and State agency heads who are able to receive what
would otherwise be protected information, such as the names and addresses of
taxpayers, for the purpose of administering the Electoral Act and Referendum
Act.[61]
2.62
The Electoral Commissioner commented to the committee that the ‘AEC is
very sensitive to the fact that the tax information and the secrecy provisions
have been in place for a significant amount of time, but when you look at the
history of the secrecy provisions, you see that over time a number of other
agencies have been provided with access to that data.’[62]
2.63
The Commissioner further noted that this measure ‘…is not a novel
proposition’[63], commenting that:
… the privacy statement on the tax file number application already
lists Centrelink, the Australian Federal Police, the Child Support Agency, the
Department of Veterans' Affairs, the Department of Immigration and Citizenship,
the Department of Families, Housing, Community Services and Indigenous Affairs
and the Department of Education, Employment and Workplace Relations as agencies
that are already in receipt of information from the Australian Taxation Office.[64]
2.64
The Electoral Commissioner further commented that the taxpayer
information that will be utilised by the AEC under this arrangement ‘would be
limited to information dealing with the identity of the individual, their
citizenship, their age and their residential address for the purposes of
enrolment’.[65]
2.65
The AEC also states in relation to this provision that ‘the form of the
amendment was discussed in detail and agreed with the ATO and the Treasury’.[66]
The AEC asserts that it:
…will continue to work with the ATO with a view to being
ready to implement the measures proposed in the Bill, and develop further
agreements covering the proposed arrangements for agency-specific issues
including the collection, use, transfer and storage of personal information.[67]
2.66
The Electoral Commissioner noted that ‘the arrangements that we are
currently discussing with the Tax Office are about…merging the process for tax
file applications with the process for applying for enrolment’.[68]
The Commissioner stated:
This seems to us to make incredible sense in that you bring
together two government processes into a single process and thereby minimise
the inconvenience for citizens in the way in which they transact business with
government.[69]
2.67
The AEC further submits that:
…using information collected by the ATO for the purposes of
maintaining the roll will improve two key integrity elements of the electoral
roll, accuracy and completeness, by:
- assisting eligible
electors to be on the roll;
- assisting electors to
maintain enrolment at a correct address;
- updating enrolment
details in a more timely manner; and
- reducing objection action
to remove electors from the roll when a new address is known for them.[70]
2.68
FamilyVoice Australia opposes the use of taxpayer information by the AEC
stating:
Opposition members in their dissenting report on the 2010
federal election raised several valid concerns about automatic enrolment using
data collected by other government agencies for unrelated purposes, including:
- The findings of a
1999 report by the House of Representatives Standing Committee on Economics,
Finance and Public Administration: Numbers on the Run – Review of the ANAO
Report No.37 1998-99 on the Management of Tax File Numbers, that there were 3.2
million more Tax File Numbers than people in Australia at the last census;
there were 185,000 potential duplicate tax records for individuals; and 62 per
cent of deceased clients were not recorded as deceased in a sample match.
- The current ‘paper
trail’ that sees electors initiate enrolment with a signed form provides a
unique security feature to address any questions regarding roll integrity. The
placement of people on the roll automatically will undermine this important
element of roll integrity.
- Given the relatively
light identification requirements present in the Australian electoral system,
removing this security feature only weakens one of the few critical protections
for the integrity of the roll and its policing.[71]
2.69
Concerns with this provision were also expressed at the public hearing:
Mrs BRONWYN BISHOP:…we in the opposition made clear
all the way through that we are absolutely opposed to [access to Australian Tax
Office information] which the government has always favoured along with
automatic enrolment… we know how wrong the data from the Tax Office can be.
The fact of the matter is that tax records are not accurate,
and you are proposing to use material that will come to you to put people onto
the roll. I simply reiterate the argument we have used all along: that you are
in fact putting the integrity of the roll at risk. If you can't trust the roll,
you can't have a properly acting democracy.[72]
2.70
The Electoral Commissioner expressed confidence in the integrity of the
taxpayer information that would be used for the purposes of enrolment asserting
that:
If you look at the tax file number application, and I will
quote here, you need 'three documents, one of which must be a primary document'
and then the description of 'primary documents' says that this includes an
Australian full birth certificate—a birth certificate extract is not
acceptable—or an Australian passport, or an Australian citizenship certificate
or extract from the register of citizen by descent—and they are original
documents. So the level of identity proof that is being used to establish the
identity is higher, as I said, than what we use. It is on that basis that all
of the boxes are ticked in terms of a person's entitlement to enrolment.[73]
2.71
The AEC further advised the committee that any direct enrolment involves
a ‘matching and integrity checking’ process:
Data from other government sources with strict evidence of
identity requirements [are] matched against the electoral roll to identify
potential electors who are not on the roll or whose enrolled address is not
accurate. Matching is done using a specialist information technology system, in
the main, and in cases where a precise match cannot be made there is
intervention by a trained AEC staff member. Under direct enrolment and update,
all of the standard matching and integrity business rules as used in the AEC's
CRU mail review program are applied.[74]
2.72
In addition, the AEC advises in relation to direct enrolment:
In deciding whether an individual should be enrolled there
are three overriding principles:
- certainty about the
identity of the individual - ensuring that information supplied can be
associated with a unique individual;
- determination that an
individual is an Australian citizen - and therefore eligible to be enrolled;
and
- certainty about the
address - enrolment and voting are address-based, therefore it is important to
establish the appropriate address at which an elector should be enrolled.
- The checks undertaken at this stage are numerous, and include
but are not limited to:
- ensuring that the
address provided is one contained on the AEC's Address Register, or can be
verified and therefore added to the Address Register;
- ensuring that the
address for mailing has reliable mail delivery; and
- removing individuals
who have features which are incompatible with direct enrolment and address
update.[75]
Conclusion
2.73
The committee maintains the view it expressed in its 2010 federal
election report that the ATO should be permitted to provide relevant data to
the AEC for the purposes of facilitating enrolment. This is a logical extension
of existing continuous roll update processes and direct enrolment using third
party information which the committee has supported in previous bill inquiries.
In addition, these proposed amendments have been discussed and agreed with the
ATO and the Treasury.
2.74
The Electoral Commissioner outlined to the committee that a number of government
agencies have access to data from the ATO and provided examples. The list of government
entities that can receive protected information from taxation officers for specific
purposes (defined in Section 355 of the Taxation Administration Act) includes,
but is not limited to:
- the Health Secretary
- the Education
Secretary
- the Repatriation
Commission
- the Child Support
Registrar
- the Superannuation
Complaints Tribunal
- the Australian
Prudential Regulation Authority
- the Australian
Securities and Investments Commission
- the Secretary of the
Department of the Treasury
- a State taxation
officer, or a Territory taxation officer
- the Development
Allowance Authority
- the Defence Secretary
- an authority of a
State or Territory that administers a workers’ compensation law
- the Environment
Secretary
- the Clean Energy
Regulator
- the Australian
Statistician
- the Chief Executive
Officer of Customs
- the Immigration
Secretary
- the Fair Work
Ombudsman
- the Attorney-General
of a State or Territory.[76]
2.75
The addition of the AEC to this list for the specific purpose of
maintaining the veracity of the electoral roll is appropriate and will not
undermine roll integrity.
Daryl Melham MP
Chair
26 February 2013
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