Dissenting report – The Hon Bronwyn Bishop MP,
The Hon Alex Somlyay MP,
Senator Scott Ryan and Senator Simon Birmingham
Joint Standing Committee on Electoral Matters
Dissenting Report –Advisory Report on
the Electoral and Referendum Amendment (Improving Electoral Administration)
Bill 2012
Introduction
The
Electoral and Referendum Amendment (Improving Electoral Administration) Bill
2012 was introduced by the Government to implement recommendations 3, 9, 10 11,
15, 29 and 30 of the The Federal Election 2010: Report on the conduct of the
election and other related matters.
Recommendations
9, 15, 29 and 30 were supported unanimously by both Government and the
Opposition members.
Recommendations
3, 10 and 11 were opposed by the Opposition members.
The
Selection Committee referred this Bill to the Joint Standing Committee on
Electoral Matters (JSCEM)for further scrutiny, following its introduction into
the House of Representatives on the 29th of November 2012 by the
Selection Committee.
This Bill
moves to implement recommendations 3, 10 and 11. The Opposition remains opposed
to these measures, as set out below:
Schedule 1, Part 1, Taxation Administration Act 1953
This measure
is in response to recommendation 3 of the Government Members majority report of
the Federal Election 2010: Report on the conduct on the conduct of the
election and other related matters. It will enact legislative changes to
the Taxation Administration Act, which governs the protection of personal data
collected by the Australian Taxation Office (ATO). This change will allow the
ATO to provide personal information and data to the Australian Electoral
Commission (AEC) for the purposes of automatic enrolment.
The
Opposition remains strongly opposed and previously voted against automatic
enrolment by the AEC and have also raised objections in previous JSCEM inquiries.
Furthermore we are opposed to the ATO being able to disclose tax-payers
currently protected personal data.
This is
consistent with our position in The Federal Election 2010: Report on the
conduct of the election and other related matters – Dissenting Report.
The
Coalition is concerned that this bill will allow the Commissioner of Taxation
to provide personal information on individual tax-payers which will allow
voters to be added to the electoral roll, with-out any due process.
The ATO have
always claimed that it maintains the highest level of confidentiality when it
comes to tax-payers personal information. This Bill intends to amend the Tax
Act to allow personal data to be given to the AEC for the purposes of automatic
enrolment and Coalition believes that this would constitute a breach of faith
with the Australian people.
The Coalition
has previously stated that Automatic Enrolment Legislation will severely damage
and question the integrity of the Electoral Roll. It has always been an
elector’s individual responsibility to enrol to vote, notify the AEC of any
change to address and then to vote at elections These are not onerous
responsibilities and the Opposition believes it should remain with the
individual elector, not the Australian Electoral Commission. Coalition Members
and Senators have consistently made this point since the JSCEM 2007 Federal
Election Inquiry and highlighted this point more recently in the JSCEM inquiry
into the Electoral Amendment (Protecting Elector Participation) Bill 2012.
The
reliance on external data sources that have been collated and that are utilised
for other purposes does not make them fit for use in forming the electoral
roll.
As
outlined in the previous report into these proposals, 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, found that:
- There
were 3.2 million more Tax File Numbers than people in Australia at the relevant
census;
- There
were 185,000 potential duplicate tax records for individuals; 62 per cent of
deceased clients were not recorded as deceased in a sample match.
Similarly,
an ANAO Audit Report (No.24 2004–05 Integrity of Medicare Enrolment Data)
stated that ‘ANAO found that up to half a million active Medicare enrolment
records were probably for people who are deceased’.[1]
In
simple terms, where there are such examples of inconsistency in Commonwealth
data, there cannot be sufficient faith in this data being used to automatically
add people to the electoral roll.
The
potential for error is even greater when using data from state or territory
governments, as the Commonwealth cannot determine its accuracy and the relevant
agencies are outside the scope of oversight by Commonwealth Parliament or
Auditor-General.
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 that there is neither consent nor a signature
required for automatic enrolment, it is doubtful that someone could be pursued
for false enrolment or other aspects of electoral fraud.
Furthermore, 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.
Given that it is not uncommon for individual electorate
results to be determined by less than 1000 votes, even a 1 per cent error in
the information sourced from the various agencies could have significant
ramifications for the outcome of a seat, or even an election.
This is not to suggest that current processes cannot be
refined and updated, but a move away from an individual enrolling on his or her
own initiative in compliance with electoral legislation to a situation where
the state can enrol a person of its own accord represents a drastic and
dramatic change in our enrolment processes.
The AEC has previously submitted that the declining
enrolment rate is partly due to the out-dated and overly prescriptive enrolment
procedures and requirements. If this concern is to be taken at face value, then
this is a reason to reconsider some of these practices – it does not justify a
movement away from individual registration to automatic enrolment.
Despite the fact that the government majority report
recommends that the power to declare data sources as ‘trusted’ be given to the
AEC, Opposition Members and Senators do not believe this addresses this problem
in its entirety. >
We are concerned that the power to deem data sources
‘trusted’ in determining the use of such data in compiling the roll is a risk
to the roll.
The inclusion of such data, if erroneous, would be
extremely damaging to public faith in our electoral process. Furthermore, the
inclusion of such data may well be controversial due to lack of faith in its
inclusion or utilisation.
Placing
the Electoral Commissioner at the heart of such a potentially politically
charged dispute can only damage the standing of the office and the AEC.
The
Opposition remains opposed to automatic enrolment and the provision within this
Bill which provides for the Australian Taxation Office to release tax-payers
personal data for the purpose of automatic enrolment.
Schedule 1, Part 1, Amendments – Negate requirement to have a
signed certificate for a pre-poll ordinary vote
This measure
aims to implement recommendation 10 of the JSCEM Report into the 2010 election
and will remove the requirement under the Electoral Act and Referendum Act for
an applicant for a pre-poll ordinary vote to complete and sign a certificate.
The
Opposition recommends that electors continue to be required to sign a
declaration when casting a pre poll vote. Previously the opposition has
highlighted concerns about fraudulent and multiple voting in elections and
strongly believes that that it is not an onerous task to provide a signature
for a declaration pre-poll vote.
The Coalition
strongly believes that there is one election day, that being polling day and
that pre-poll only exists to assist those who are unable to vote on polling day
dues to work or travel commitments or health concerns. It is for that reason
pre-poll votes should still require a signed certificate as is presently
provided for.
Schedule 1, Part 1, Amendments – Opening of pre-polling
before election day
The
provision in this Bill will move to adopt recommendation 11 of the government
majority JSCEM Report into the 2010 election, which provides that pre-poll
voting cannot commence earlier than 4 days after the date fixed for declaration
of nominations for any type of election or by-election.
The Opposition
recommends that pre-poll voting be open 12 days before the election.
Opposition members believe that pre-poll voting should not
open until the Monday 12 days before polling day, as opposed to the Monday 19
days before polling day as recommended by the Government members on the
Committee in the Report on The 2010 Federal Election: Report on the conduct
of the election and related matter. This would ensure that electors are
still given ample time to cast a pre-poll vote prior to election day should
they need to.
The Opposition members are concerned that allowing pre-poll
voting for 19 days prior to Election Day takes the focus of polling day itself,
which is where the overwhelming majority of votes should be cast. By having
pre-poll 12 days before polling day this will also ensure that the AEC has
sufficient time to accept nominations and check all details before printing
ballot papers.
Opposition
Committee members therefore oppose this measure.
Schedule 1, Part 1, Amendments - excluding of votes contained
within a prematurely opened ballot box.
The Bill
requires that when ballot boxes are opened prematurely that the box is removed
from scrutiny. The Opposition is opposed to this measure as it currently stands.
The Coalition does not believe that because a ballot box has been opened it
should be automatically assumed that the ballots have been tampered with and
therefore excluded from the scrutiny as this provision enacts.
Rather the Opposition
recommends the proposal of the Electoral Reform Australia, The New South
Wales Branch of the Proportional Representation
Society
of Australia, who
provided a written submission for and participated in the public hearing round
table of February 4th 2013. Their submission states that instead of
removing the votes from scrutiny that there should be a discretion given in the
following terms
“To grant
discretion to polling officials to accept or exclude ballots from incorrectly
opened ballot-boxes.
…and
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.”[2]
During the
JSCEM inquiry the Shadow Special Minister of State did enquire as to whether or
not the correct training process had taken place in ensuring that all Returning
Officers had received appropriate training, the Electoral Commissioner did not
have the information readily available and requested to take this question on
notice and report back to the Committee.[3]
The Commissioner went on to further explain that the recommendations of the
Gray Report on the opening of the ballot boxes had been implemented.
It is for
that reason the Opposition questions the need for the provision in the Bill to
automatically exclude any ballots particularly as the status of pre poll votes
had changed in the lead up to the 2010 election, and given that the booth
Returning Officers who had mistakenly opened the ballot boxes were experienced
but not adequately advised by the AEC as to the change in status of pre poll
votes from Declaration votes to Ordinary votes with the consequence that the
ballot boxes cannot be opened until after the close of polling.
The Bill
also neglects to deal with an instance where ballot boxes are deliberately
tampered with, by way of deliberate sabotage, in order to have those votes
within those ballot boxes excluded from scrutiny. In some instances this may
alter the outcome of the electorate result and therefore could affect the
outcome of the election.
We note that
Government members have recommended that there be a savings provision for
ballots contained in a box which is prematurely opened but does not provide adequately
for the counting of those ballots.
We believe all
ballots must be counted at the preliminary scrutiny in the polling place, even
if subsequently excluded from the scrutiny, so as to enable a proper judgement
to be made as to whether an appeal to the Court of Disputed Returns is to be
properly considered.
It will also
allow a correct tally to be made on the night of ballot papers issued and
ballot papers cast.
It would
also enshrine the principle that citizens have the right to have their vote
counted where the error is not theirs.
The AEC in
the 2010 Election sought advice from the Australian Government Solicitor as to
whether ballots contained in a box of pre poll votes which were opened
prematurely should be excluded from the scrutiny. The AGS in its summary of
advice stated:
“In the present circumstances, we consider that the better
course of action is not to include the ballot papers in the count and to
quarantine those papers (although for the reasons we discuss below, it is
possible that a court might take a different view).”
The advice
further stated that in the case of Mitchell v Bailey (No2) (2008)
169 FCR 529 the court had held “a ballot paper must be included in the count if
it is a formal vote. For example, Tracey J said (at 537)
If a ballot paper is not informal the office conducting the
scrutiny will have no legal basis for rejecting it. An implied obligation to
admit such a ballot-paper to the count thereby arises. Once admitted it is to
be counted”
They further
said
“The validity of the ballot papers can be considered by the
Court of Disputed Returns and Part XXII specially envisages that the Court of
Disputed Returns will consider errors made by electoral officials in this
process (s 365)”
It is to be
noted that in the case of Boothby and indeed the seat of Flynn, where a similar
incident occurred, that it was known that excluding these ballots would make no
difference to the outcome the declaration of the poll.
The
Coalition is pleased that agreement was reached with Government Members to express
the need to insert into the Electoral Act savings provisions for ballot papers
contained in a prematurely opened box. However disagreement remains as to when
and how the ballot papers should be counted.
For the
reasons set out above, the Coalition believes for the purposes of clarity,
amendments should be moved to the Bill in the following terms:
Schedule 1, item 24, page 6 (lines 15 to
27), omit subsections 238B(2) to (4), substitute:
(2) The most senior officer at the
polling place must:
(a) separate the ballot-box, and
keep it separate, from other ballot‑boxes at the place; and
(b) as soon as practicable after
the closing of the poll, cause a scrutiny of the ballot-papers contained in the
ballot-box to be conducted in accordance with subsection (3); and
(c) as soon as practicable after
that scrutiny:
(i) prepare
a report setting out the circumstances of the premature opening of the ballot‑box
and any other matters the officer considers relevant; and
(ii) invite
any scrutineers undertaking duties at the place to prepare reports about the
circumstances of the premature opening and any other matters the scrutineer
considers relevant; and
(d) as soon as practicable after
the reports are prepared, forward the parcels made up in accordance with
subsection (3), together with the officer’s report and any scrutineers’
reports, to the Divisional Returning Officer for the Division.
(3) The scrutiny referred to in paragraph
(2)(b) is to be conducted in accordance with subsection 273(2), 273A(2) or
274(2) (whichever applies), with the following modifications:
(a) the parcels of ballot-papers
are to be labelled in way that clearly shows that this section applies to the
ballot-papers in the parcel; and
(b) the parcels are to be kept
separate from all other parcels at the polling place; and
(c) the parcels are to be
transmitted to the Divisional Returning Officer only in accordance with
subsection (2) of this section.
(4) The Divisional Returning Officer must
consider the reports and decide whether the ballot papers contained in the box
are to be excluded from scrutiny under Part XVIII.
(5) The Divisional Returning Officer is
to decide that the ballot papers are not to be excluded unless there are strong
reasons to decide otherwise.
Similar
provisions should be inserted to amend the Referendum (Machinery Provisions)
Act 1984.
The
Hon. Alex Somlyay MP The Hon. Bronwyn
Bishop MP
Deputy
Chair
Senator Scott Ryan Senator
Simon Birmingham