Appendix D – Summary of the Minter Ellison inquiry and the AEC’s response

1.1

On 29 October 2004, the AEC contracted Minter Ellison to conduct an inquiry into postal voting at the 2004 Federal Election. The terms of reference were as follows:

To investigate the problems encountered in certain aspects of postal voting at the 2004 Federal Elections and to provide a report on the following key matters:

what went wrong with postal voting processing;
how the AEC dealt with issues as they arose;
an examination of the context and process failures and successes; and
recommendations for any changes that should be made for the future.

Specifically, the inquiry was to address the following non-inclusive list of issues:

the initial deluge of postal vote applications;
delays in delivery;
the 568 postal vote certificates sent to incorrect addresses;
the delayed regeneration of 68 ACT and 2,043 Queensland spoilt postal vote certificate envelopes;
The 1,832 spoilt postal vote certificates envelopes from a central print batch lodged on 20 September 2004 that were not regenerated; and
The inclusion of New South Wales Senate ballot papers in some mailouts of postal voting material for Queensland.

The inquiry was also asked to consider:

Whether APVIS is the optimum method of preparing and distributing postal voting materials; and
Whether risks to servicing voters in country and remote parts of Australia might be reduced by alternative methods.

1.2

Minter Ellison delivered its report on 20 December 2004, and it contained 27 recommendations in three broad areas:

providing greater certainty and effectiveness in the process by which postal votes are processed through to the preliminary scrutiny;
ensuring that the process under which postal voting material is produced and distributed to electors operates in a timely and efficient way; and
ensuring that the AEC is in a position to keep stakeholders informed on postal voting matters.

1.3

Generally, the AEC supports 23 of the Minter Ellison recommendations, notes two of the recommendations and does not support two of the recommendations. It noted that a number of the Minter Ellison recommendations require legislative change.

Minter Ellison recommendation 1

The exemption for PVAs from s.9 of the Electronic Transactions Act 1999 be removed so as to allow applicants for a postal vote to lodge the completed PVA electronically.

The AEC’s response

1.4

Supported – seeking amendment to exemption from ETA (define acceptable electronic transactions as those that transmitted a reproduction of an original PVA that had been signed by the elector) to allow voters to scan a completed PVA and email it to the AEC.

The AEC’s recommendation

1.5

That the JSCEM recommend that the Electronic Transaction Regulations 2000 be amended to permit electors to submit an application for a postal vote or an application to become a general postal vote by scanning and emailing the appropriate form.

Minter Ellison recommendation 2

Australian electors overseas have the same opportunity to register as GPVs as those in Australia.

The AEC’s response

1.6

Supported – remove ambiguity to clarify that GPV provisions apply to electors overseas; amend CEA to provide that being a member of the defence forces serving overseas is grounds for registering as a GPV.

The AEC’s recommendation

1.7

That the JSCEM recommend that the Commonwealth Electoral Act 1918 be amended to specifically permit eligible overseas electors and Australian defence force personnel serving overseas to become general postal voters.

Minter Ellison recommendation 3

The rules about GPVs be clarified – an elector enrolled in a Division should not be able to apply to be registered as a GPV once an election is called (though any application made before then should continue to be processed by the AEC).

This would clarify which rules apply during the election period.

As the grounds are almost identical, it would still be open to the elector to apply for a postal vote in that election.

The AEC’s response

1.8

Not supported – no advantage to electors because GPVs effectively become PVAs after the close of rolls; if it were implemented, the cut-off point should be the close of rolls, not the issue of writs, to avoid confusion when an enrolment is accompanied by a GPV.

Minter Ellison recommendation 4

A reference be included in the GPV application form to the fact that the completed form can be returned to the AEC by fax.

The AEC’s response

1.9

Supported – extend same provisions for lodging PVAs to GPVs.

Minter Ellison recommendation 5

The AEC explore options for having other Commonwealth agencies that are located in rural areas (such as Centrelink) to accept completed PVAs on behalf of the AEC.

The AEC’s response

1.10

Not supported – no advantage to electors, as even if other agencies collected completed PVAs, they would still have to be sent onto the AEC; greater chance for delays as would have to rely on the agency staff giving this highest priority.

Minter Ellison recommendation 6

The AEC modify its PVA to:

either require the elector to indicate, or to give the elector the option of indicating, why they require a postal vote; and

if they choose to do so, to nominate a date by which the postal voting material would need, for that reason, to be received at the postal address nominated.

The AEC’s response

1.11

Point 1: noted – previous discussed by JSCEM, but the Government did not support amendment; difficult to see whether will apply further rigour to the application process.

1.12

Point 2: supported – must manage voter expectations in the information on the PVA; take account of issues in postal delivery and variables in the production of PVPs.

Minter Ellison recommendation 7

The AEC take up the suggestion discussed with Australia Post that a process be developed on RMANS for ensuring that matters relevant to the postal delivery schedules applicable to the delivery points at the postal address, or in the postcode area, of the applicant are available to the DRO at the time the decision is made whether an application should go to Central or Local print - this would allow the delivery points that receive only 1 or 2 deliveries a week to be flagged.

The AEC’s response

1.13

Supported – dependent on Australia Post’s ability to supply mail delivery information compatible with the RMANS address register; would allow the call centre operation to decide whether local print or central print will be the best option for timely receipt of the PVP.

Minter Ellison recommendation 8

The rules about the receipt of PVAs from electors be changed so that a postal vote should be regarded as not having been made if it reaches the DRO after 6pm on the Thursday before polling day but the DRO should be required, if it is received after 6pm on the Thursday, but before 6pm on the Friday, to take reasonable steps to inform the applicant that the PVA has not been accepted.

The AEC’s response

1.14

Supported in principle – amend CEA to provide a PVA should be regarded as not having been made if reaches DRO etc after 6pm on the Wednesday before polling day (Thursday is too late); would require the DRO etc to take reasonable steps to inform the applicant the PVA has not been accepted; DRO etc that receives a PVA between the last mail clearance on the Friday week before polling day and 6pm on the next Wednesday must attempt delivery of PVP by most practicable means.

The AEC’s recommendation

1.15

That the JSCEM recommend that the Commonwealth Electoral Act 1918 and the Referendum (Machinery Provisions) Act 1984 be amended to require that:

for postal vote applications received up to and including the last mail on the Friday eight days before polling day, the AEC be required to deliver the postal voting material to the applicant by post unless otherwise specified by the applicant;
for postal vote applications received after the last mail on the Friday eight days before polling day and up to and including the last mail on the Wednesday before polling day, the AEC be required to post or otherwise deliver the postal voting material by the best means possible; and
for postal vote applications received after the last mail on the Wednesday before polling day, the applications be rejected on the grounds that delivery of postal voting material cannot be guaranteed, and that reasonable efforts be made to contact the applicants to advise them of the need to vote by other means.

Minter Ellison recommendation 9

It should be made clear that the DRO's obligation is to arrange for the delivery of the postal ballot papers to the GPV or applicant, and that it is at the DRO's discretion whether it is posted or other arrangements for its delivery are made:

the DRO’s decision should be determined by what method is most likely to ensure that the voting material is received in time for the GPV or applicant to record their vote before the close of the poll; and

this will allow the DRO to take into account the location of the voter, Australia Post delivery times for ordinary post for that location, whether the elector has indicated that they will be away from their postal address after a certain day, how close polling day is etc.

The AEC’s response

1.16

Noted – seek legal advice to clarify these issues and maybe propose amendments once advice received.

Minter Ellison recommendation 10

The AEC consider making a special point in the public education campaign associated with the next election of highlighting the difficulties associated with electors leaving it to the last week in the election period to lodge a PVA.

The AEC’s response

1.17

Supported – will consider this when reviewing the voter services phase of the campaign in 2005.

Minter Ellison recommendation 11

The rules are changed so that:

electors can, prior to the close of the polls, return their completed PVCs, envelope and ballot papers into the possession of the AEC by any convenient means, or post the material (provided that if posted, it is received within 13 days of polling day); and

the AEC is then responsible for ensuring it is delivered to the appropriate DRO in time for it to be included in the preliminary scrutiny.

The AEC’s response

1.18

Supported – amend postal voting provisions of CEA to allow return of completed PVC by any convenient means other than post to a range of AEC officers as current arrangements could be seen as being restrictive; still within 13 days of polling day.

The AEC’s recommendation

1.19

That the JSCEM recommend that the Commonwealth Electoral Act 1918 and the Referendum (Machinery Provisions) Act 1984 be amended to allow electors to return their postal votes to any employee of the AEC by any convenient means and the AEC then deliver the postal vote to the appropriate Divisional Returning Officer within 13 days after polling day.

Minter Ellison recommendation 12

The rules for admitting PVC envelopes into the preliminary scrutiny are changed to say that, where the PVC envelope is not in the possession of the AEC before the close of the poll:

it should only be accepted into the preliminary scrutiny where it is received through the post within 13 days after the close of the poll and the witness signature is dated with a day or date on or before polling day; and

if there is no signature date, then irrespective of whether or not there is a legible postmark, the envelope should be rejected.

The AEC’s response

1.20

Supported in principle – amend CEA to allow the date of the witness’s signature, not the postmark (no definition of postmark and are technical difficulties associated with mail deliveries and pick ups), to be used to determine whether a postal vote was cast prior to close of polling; previously rejected by JSCEM; require voter to confirm that they voted before 6pm on polling day through declaration block.

The AEC’s recommendation

1.21

That the JSCEM recommend that the Commonwealth Electoral Act 1918 and the Referendum (Machinery Provisions) Act 1984 be amended so that postal voters are required to confirm by signing on the postal vote certificate envelope a statement such as 'I certify that I completed all voting action on the attached ballot paper/s prior to the date/time of closing of the poll in the electoral division for which I am enrolled.'

Minter Ellison recommendation 13

The AEC takes steps through its public education activities to ensure that the public is informed of the importance of a witness date.

The AEC’s response

1.22

Supported – AEC to consider how best to inform electors of witness responsibility during review of public awareness campaign; note that any enlargement of the election advertising campaign would add significant to AEC’s election costs.

Minter Ellison recommendation 14

APVIS, or at any rate a form of centralised, computer-based printing and production system to support the distribution by the AEC of postal voting material, be retained.

The AEC’s response

1.23

Supported – can’t process current/expected volume of PVAs without support of centralised, computer-based printing and production system.

Minter Ellison recommendation 15

The flexibility to determine whether postal voting material should be produced centrally or through a local computer-based system in the office of DRO’s be retained.

The AEC’s response

1.24

Supported – local print is essential for when voting material is required immediately.

Minter Ellison recommendation 16

The AEC establish a planning team as soon as possible consisting of representatives of relevant areas in the AEC (ie the ESP Section, State and Territory Head Offices, DROs, the Public Awareness Media and Research Branch and Parliamentary and Ministerial Section) with the task, taking account of experience in the 2004 election, of:

mapping each stage in the postal voting process

identifying what needs to be done, by whom and in what timeframe, to ensure that each stage in the process is achieved effectively and efficiently

undertaking a comprehensive risk assessment of each part (ie identification of risks, their removal or minimisation)

formulating risk recovery procedures for each part of the process (identification of what would have to be done, who would do it, what resources would need to be available etc)

undertaking an assessment of resources needed to achieve the outcomes, where additional resources may be required and a process for securing those additional resources

identifying where contractors, service providers or stakeholders are involved or potentially affected, and what their roles and responsibilities would be

preparing a report for the AEC Executive on planning for, and the development and implementation, of

the RFT process for the provision of postal voting material for the next election, or

if the AEC proposes to renew its contract with QM Technologies without a new RFT process, the negotiation of a new contract for those services

ensuring that, drawing on the outcome of the work outlined above, the report to the Executive deals comprehensively with all the requirements recommended for inclusion in the RFT and/or contract negotiations (see recommendation 19 below)

for the purpose of preparing the report, consulting with other Commonwealth agencies with similar mail processing service requirements and with expertise and experience in dealing with mail houses and involved in the provision of bulk personalised printing services (such as the Australian Taxation Office, Centrelink and possibly the Australian Bureau of Statistics).

The AEC’s response

1.25

Supported – established diverse and representative postal voting working party in April 2005 to consider these matters and to thoroughly map each stage of the postal voting process.

Minter Ellison recommendation 17

The AEC contract the services of a person with expertise and experience in the mail house industry and in contract management, under the direction of relevant AEC officers, to:

take responsibility for the development of relevant documentation to support

the RFT process for the APVIS contract

the tendering and contract negotiation

develop the QA and FRS documentation for the next election

manage the RFT preparation, tender evaluation, contract negotiation and implementation

provide training to AEC QA staff in the lead up to the election (and share supervisory responsibilities for them during the contract)

advise the AEC on relevant developments in new technology.

The AEC’s response

1.26

Supported in principle – will consider most appropriate way to ensure that relevant skills and expertise are available during tendering, evaluation and contract implementation; recognise cost implications.

Minter Ellison recommendation 18

The AEC consider ways in which the resources available to the ESP Section can be supplemented, both during the period immediately prior to, and in the election period.

The AEC’s response

Supported – will explore addition of short-term resources to ESP section prior to and during election to undertake specific tasks, eg quality assurance, user support and contract fulfilment.

Minter Ellison recommendation 19

The RFT (if this process is relevant), and the contract for the production of postal voting material for the next election, fully set out the AEC’s requirements, namely:

the scope of the services to be provided including, at a minimum, the receipt, storage, processing and secure disposal of data, programming and development services, personalised printing, compilation of PVPs containing personalised and other material, lodgement of PVPs with Australia Post or other carriers as specified from time to time, provision and management of base stock etc

how those services are to be delivered, in particular, that there is sufficient printing and mail processing capacity to manage both the production of PVPs and regenerated spoils in a timely way, including if necessary a ‘Local Print’ option

management matters including, at a minimum, security of personal information, quality management systems, disaster recovery and business continuity, reconciliation and job tracking (including management and regeneration of spoils and their tracking), maintenance of job documentation, staff management

account management matters including, at a minimum, staff of management team – responsibilities and reporting, financial management, reporting, performance management, corporate management, identification of staff who will have managerial responsibility and the staff with ‘on-the-ground’ responsibility for performance under the contract

transition issues ie how a new contractor (or a new site of an existing contractor) will put in place processes and procedures necessary to support the performance of the contract, and post contract

reports that the AEC would require including, at a minimum, transfer report – daily confirming receipt of all data, detailed daily progress report on PVC and PVP production and lodgement, incident reports (within a nominated time), stock report on production, use and levels of base stock, system development report, management report, assurance certificates about compliance with all the requirements of contract, certificate of destruction of data/spoils etc

service levels that focus on each element of the production process that is vital to the performance required by the AEC, measure the contractor’s performance on that element and provides an incentive to the contractor to ‘get it right’ – these service levels would therefore:

include ‘service debits' that will apply to each service level breach ie specific financial penalty for each breach of each kind of service level

set out the method by which the service level is to be checked eg contractor to inform AEC, AEC audit or review, problems reported by recipients or Australia Post, failure to provide reports of required content or at required time

include the full range of matters, strict compliance with which is an AEC requirement

where it is proposed that more than one production site be used, that there are arrangements in place that will assure the same level of quality and performance at each site, and that each site will be applying the same (agreed) processes and procedures

what arrangements are to be made with Australia Post for discounts under the Process Improvement Program, the implications for the way production is managed between sites and within a site, and the rules to apply in relation to ‘virtual’ lodgements

what Quality Assurance arrangements the AEC will want for observing the compliance by the contractor with its Quality Assurance obligations.

The AEC’s response

1.28

Supported – will develop an RFT taking account of requirements above.

Minter Ellison recommendation 20

Any contract negotiated for the provision of postal voting material for the next election specifically cover the matters listed above.

The AEC’s response

1.29

Supported – will prepare a contract taking account of requirements in Recommendation 19; will seek specialist legal advice from appropriately skilled and experienced legal firm during contract negotiation.

Minter Ellison recommendation 21

Such a contract include a requirement that:

each party keep the other fully informed about any material changes in circumstance between the finalisation of the contract and the time at which the contract services are to be provided; and

the implications of any decisions that may impact on either party’s roles and responsibilities under the contract are fully discussed.

The AEC’s response

1.30

Supported – will prepare a contract taking account of requirements above.

Minter Ellison recommendation 22

The issue of whether Central Print should be more or less ‘de-centralised’ (ie the number of sites to be used) should be considered in light of the circumstances that prevail at the time of the tendering process and during contract negotiation, and again before the election period if the circumstances require it.

The AEC’s response

1.31

Supported – will determine appropriateness of multiple processing sites for central print during evaluation of tenders or development of new contract with QM Technologies.

Minter Ellison recommendation 23

The rules for determining whether postal voting material is produced by Central Print or Local Print at any particular election or at any particular time in an election period should be determined as part of the preparation for a particular election in light of the circumstances then prevailing, but the following may provide some guidance:

where files are small and require special treatment and may result in substantial downtime in order to process (eg may require a change of material to be inserted in mail processing), they should not be sent to Central Print at least in the first week (if at all) if they can be effectively and efficiently handled through Local Print

where more than one site is to be used and the work is divided between them by reference to the State or Territory in which the recipient of the PVP is enrolled (thus only requiring the insertion of certain kinds of Senate ballot papers), serious consideration needs to be given to the risks of compromising that division in order to get postal advantages

every effort should be made to minimise the number of small files to be processed, particularly in the first week of production.

The AEC’s response

1.32

Supported – AEC and contractor to jointly develop and document the process design.

Minter Ellison recommendation 24

The AEC, with a view to increasing its availability, undertake a comprehensive review of pre-polling which would consider the following matters:

its advantages over postal voting (eg security, immediate inclusion of the vote in scrutiny etc)

whether it provides a genuine alternative to postal voting

its capacity to respond as demand requires

whether it is resourced appropriately

whether it is advertised appropriately

whether the CEA should be amended to remove the necessity for gazettal of the opening hours (and possibly of the place proposed to be used as a pre-poll place), provided the AEC takes appropriate steps to ensure they are appropriately advertised (including on web site etc).

The AEC’s response

1.33

Supported – will conduct thorough review of current pre-poll voting arrangements by November 2005 to determine most appropriate locations and days and times of operation for pre-poll voting centres for the next election, and the most appropriate content and media for advertising.

1.34

Need to consider both postal voting and pre-poll voting in terms of service to the elector and admin of the service; postal voting has many advantages to the elector, but pre-poll has some advantages for admin; PVAs now more easily accessible, so postal voting more prevalent than pre-poll voting in 2004 for the first time; recognise cost implications of increasing the numbers of pre-poll voting centres.

1.35

Gazettal of times of operation of pre-poll voting centre makes it difficult for the AEC to extend the period of operation to meet unexpected demand.

The AEC’s recommendation

1.36

That the JSCEM recommend that the Commonwealth Electoral Act 1918 and the Referendum (Machinery Provisions) Act 1984 be amended to replace the requirement to gazette the location and time of operation of pre-poll voting offices with a requirement to publicise the location and time of operation of pre-poll voting offices.

Minter Ellison recommendation 25

The AEC computer and data recording and retrieval systems be upgraded to allow real-time information to be extracted by DROs on the progress of the production of PVPs for individual postal voters.

The AEC’s response

1.37

Supported – will enhance data in RMANS about PVA to include date the PVP was lodged with Australia Post, to increase the amount of information that can be supplied to individual electors about the progress of their vote.

Minter Ellison recommendation 26

In the lead up to the next election, the AEC:

discuss with the Minister’s office options for a [sic] establishing a process for the provision of information about emerging issues during the election period, identifying which staff are to be involved, how and to whom requests for urgent briefing are to be handled, and how issues are to be followed up, and reported on, by the AEC (this would provide an opportunity for a discussion about the kind of information that the AEC feels able to provide during an election period, and in what form, and any perceived sensitivities)

formulate guidelines reflecting the outcome of those discussions that would be available to all relevant staff prior to the election.

The AEC’s response

1.38

Supported – will make arrangements to meet with the Minister’s office to advice above; include caretaker conventions to apply once an election is announced.

Minter Ellison recommendation 27

The AEC continue with its recent initiative of providing regular briefings to political parties and use that opportunity to explore options for protocols about the provisions of information in the period leading up to, and during, the next election period.

The AEC’s response

1.39 Supported – will determine most effective and least time consuming manner of providing briefings to all political parties and candidate

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