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

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:

1.2

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

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).

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:

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:

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 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:

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:

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:

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:

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 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:

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:

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:

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:

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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