Dissenting report – The Hon Bronwyn Bishop MP,
The Hon Alex Somlyay MP, Senator Scott Ryan and Senator Simon Birmingham
Introduction
Coalition Members and
Senators strongly disagree with the Labor and Green members of the Joint
Standing Committee on Electoral Matters that the Electoral and Referendum
Amendment (Protecting Elector Participation) Bill 2012 (i.e. automatic
enrolment) be passed by the Parliament. The Coalition has long opposed moves
by the Labor Party and the Greens to introduce automatic enrolment and notes
that this Bill is being introduced solely to improve the electoral prospects of
both Labor and the Greens. This follows similar moves by the former Labor
Governments in NSW and Victoria prior to their last state elections.
This legislation will
severely damage the integrity of the Electoral Roll by adding new electors who
may not be entitled to vote without their knowledge and potentially without
their consent, should the elector not receive the Australian Electoral
Commission’s notice of enrolment. The
Coalition believes it is an elector’s individual responsibility to enrol to vote,
notify the AEC if they change address and then to vote at elections. These
are not onerous responsibilities and 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.
The Coalition also notes
the extensive privacy implications that this legislation raises and has been
virtually ignored by the Labor Party and Greens. As with the Electoral and
Referendum Amendment (Maintaining Address) Bill 2011, Dr Roger Clarke of
the Australian Privacy Foundation provided the Committee with valuable
information about the individual privacy concerns that this Bill raises. The
Coalition has very real concerns about electors having their details published
on the Electoral Roll without their knowledge and without the opportunity to
apply for silent elector status.
Integrity of the Electoral Roll
It is imperative that the
Roll which is used to elect our Parliamentarians is accurate and reliable,
particularly in the wake of the 2010 Federal Election where no political party
won a majority of seats in the House of Representatives and results in a number
of individual electorates came down to only a few hundred votes. Where the responsibility
for enrolling and updating individual elector details is taken from the
individual and given to the AEC, as this Bill will do, the potential for errors
to occur is significant. It also opens up the Roll to fraud.
Labor and Green Members of
JSCEM as well as the Australian Electoral Commission seem to consistently
downplay the issue of the integrity of the Electoral Roll. The Hon. Bronwyn
Bishop MP, Shadow Special Minister of State, noted during the JSCEM roundtable
hearing on 29 February 2012 that it was of critical importance from a legal
point of view that the Electoral Roll be reliable and accurate, and drew
attention to Professor Graeme Orr’s book The Law of Politics and quoted
from page 71:
“Like other official
public registers, such as land registers, a chief feature of electoral rolls is
their finality. The purpose of a roll is to be a definitive statement of the
entitlement to vote'—leaving aside the provisional provisions—'Thus there is a
rule that the roll is conclusive evidence of the entitlement to vote.
Reinforcing this is the secondary rule in almost all jurisdictions that a court
of disputed returns is not to inquire into the correctness of the roll.”[1]
Again Professor Orr in his
chapter on “Enrolment and the Roll” cites Perkins vs Cusack (1930):
“The Federal Court of
Disputed Returns faced a petition claiming that many people on the roll for the
seat of Eden-Monaro whose real place of living was outside of that electorate.
Even though it was alleged that some enrolled electors lived at addresses that
lay outside the divisional boundaries, Starke J refused to allow any evidence
to be tendered that might contradict the face of the roll.”[2]
The Coalition notes that
this Bill goes further than the Labor and Greens recommendation in the JSCEM
report on the inquiry into the 2010 Federal Election. In this inquiry Labor
and Greens members recommended that data sources used by the AEC to
automatically enrol electors should be subject to disallowance by Parliament.
This Bill and the Electoral and Referendum Amendment (Maintaining Address)
Bill 2011 gives sole discretion to the AEC:
“The Committee
recommends that, wherever appropriate, the Commonwealth Electoral Act 1918 should
be amended to allow the Australian Electoral Commission (AEC) to directly enrol
eligible electors on the basis of data or information provided by an elector or
electors to an agency approved by the AEC, as an agency which performs adequate
proof of identity checks, where that information is subsequently provided by
that agency to the AEC for the purposes of updating the electoral roll.
Approval of such agencies by the AEC should be made by disallowable instrument.”[3]
The Australian Electoral
Commission has outlined their process to automatically enrol new electors,
which clearly shows that if an individual they believe to be eligible does not
respond to their contact, they will be put on the Electoral Roll automatically:
“the AEC would receive
data from a third party data source, conduct a data matching process including
a check of the eligibility of individuals to enrol, notify eligible individuals
and, after a period of 28 days, make additions to the electoral roll and inform
electors of the AEC’s action.”[4]
Essentially, individuals
are put on the Roll if the AEC believes they are eligible after consulting
various “data sources”. Neither this Bill nor the Electoral and Referendum
Amendment (Maintaining Address) Bill 2011 specifies what data sources is
required for the AEC to consider what constitutes reliable nor are there any
restrictions on which data sources the AEC can use to enrol an elector. There
is no provision specifying the standard of proof that the AEC needs to be able
to enrol an elector. This Bill leaves all these decisions to the AEC, which
Coalition Members and Senators believe is far beyond their jurisdiction.
The AEC states in its
submission that it would use Centrelink and state government Roads and Traffic
Authority information[5]and has previously stated that information from
Australia Post would also be used. The use of these agencies is not
legislated, but are merely stated as the source the AEC considers reliable
without providing any evidence to establish the reliability of this
information. In reality, the AEC could use any data source it sees fit,
including records from the Tax Office or Medicare. The Coalition has
previously highlighted in its dissenting reports to the JSCEM inquiries into
the 2010 Federal Election and the Electoral and Referendum Amendment
(Maintaining Address) Bill 2011 about the extraordinary risk using these
agencies given the high number of duplicate records:
“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 last 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’”[6]
The Coalition has great
concern that individuals not entitled to vote may be added to the Roll because
of this Bill. It is clear that members of the community who are not Australian
citizens or are under 18 or are not living at the address the AEC believes or
are otherwise ineligible to vote may be incorrectly added to the Electoral Roll
under this Bill. The AEC has stated they will use birth certificate and
passport information to further ascertain a person’s eligibility to be on the
Roll, however, this runs into difficulties if a person uses different spelling
for their name, has changed their name or if there are other inconsistencies
between their address details and other eligibility information. Coalition
Members and Senators note that under this Bill, there is actually no
legislative requirement for the AEC to check whether a person is over 18 or an
Australian citizen before they are added to the Roll, meaning any process used
to ascertain an individual’s eligibility could be changed without notice.
The first obligation of
the AEC is to uphold the integrity of the Roll. The AEC has instead focused on
maximising the number of people on the Electoral Roll at the expense of that
obligation. Dr Roger Clarke of the Australian Privacy Foundation told JSCEM on
29 February 2012 that the intention of the AEC should be to maximise the
opportunity for people to enrol, not to do it on their behalf:
“I believe part of the
problem is that the presumption is that there is a desire to maximise the number
of people on the rolls. I do not believe that is an appropriate objective. The
notion of the vote is a right—it is an entitlement—and turning it into an
obligation, which is what that entails, I just do not believe is appropriate in
a democratic process. The intention should be to maximise people's opportunity
to enrol and to vote, and this goes well beyond that.”[7]
The AEC has not advised
how many errors they expect to occur as a result of automatic enrolment but
have simply played down the prospect of errors occurring. Coalition Members
and Senators are very concerned with this lax attitude to the integrity of the
Electoral Roll and believes the AEC should focus on encouraging individual
electors to be responsible for their own enrolment, rather than doing it for
them.
Privacy Concerns
Coalition Members and
Senators also note the risks relating to the privacy of individual electors
raised during this inquiry and the previous inquiry into the Electoral and
Referendum Amendment (Maintaining Address) Bill 2011. Dr Roger Clarke from
the Australian Privacy Foundation told the JSCEM Roundtable hearing on 29
February 2012 that he was particularly concerned about the lack of consultation
about the Bill, was not aware of any privacy assessments taking place and
believed that the outcome of the inquiry appeared to be predetermined:
“We are not aware of
any risk assessment having been performed. We were not aware of any privacy
impact assessment having been performed. We were not aware of consultation
processed which the Electoral Commissioner has just referred to. We are not
aware of the APF or any of the civil liberties organisations being involved in
any of those. We have checked back through our records and confined our
evidence of that in our own records….. ….Finally, the outcome of the inquiry
does appear to be predetermined. The inquiries being held by the same committee
came forward with a related proposal, and when we sought further time to
address this matter we were told that, 'The committee was merely focusing on
the adequacy of the bill in achieving its policy objectives.' This sounds
rather less than substantive consideration of the matter.” [8]
On top of the AEC not
performing an adequate risk assessment relating to individual privacy, Dr
Clarke expressed his concern about a number of aspects of the Bill. In
particular, this Bill and the Electoral and Referendum Amendment
(Maintaining Address) Bill 2011 enables electors to be placed on the
Electoral Roll without their knowledge and for their address details to then be
made available to members of the public who can view the Roll. This is of
particular concern to those who are victims of domestic violence, those
involved in custody disputes or for other reasons want their address suppressed
because of safety fears. Coalition Members and Senators note when electors are
added to the Roll without their knowledge or consent they are unable to apply
for their address details to be suppressed. Dr Clarke spoke about this matter
during the Roundtable hearing on 29 February 2012:
“But there are a lot of
other frustrations and fears amongst electors who are unable to suppress
information which is sensitive, particularly their address. Those are
additional concerns. There are people who are going to be moving address, who
are going to be seeking to not have that address publicised, and it is going to
turn up on the electoral roll against their wishes and, in some cases, against
their knowledge. Those are things that have to be balanced against the
preference of some people to impose a responsibility to vote and a
responsibility to enrol. I believe there is a lot of balancing that needs to be
done, and we do not believe that this is anything like the balanced approach.”[9]
As such, the Coalition
believes that electors should have the opportunity to apply for silent elector
status before being added to the Electoral Roll. Coalition Members and
Senators note that this arrangement is currently in place where electors have
responsibility for their own enrolment and for updating their details.
Fraudulent Voting
Coalition Members and
Senators are disappointed with the Australian Electoral Commission’s attitude
to fraudulent voting and have consistently noted the AEC’s failure to prosecute
any cases of fraudulent voting, despite their being over 20,633 multiple votes
at the 2007 Election. At present an elector must fill out an enrolment form to
be added to the Electoral Roll, however, if they are automatically enrolled
there is no specific record to refer to of why they were enrolled in the first
place.
On 29 February 2012,
Senator Scott Ryan raised a valid point about how this legislation will make it
harder for the Director of Public Prosecutions to prosecute cases of fraudulent
voting. When electors are put on the roll automatically, potentially without
their knowledge or consent, there will no longer be a signature available for
the returning officer to compare if an elector is making a declaration vote.
Senator Ryan noted that this will be one less piece of evidence that the DPP
will have available if they were attempting to prosecute a case of fraudulent
voting:
“We currently have a
signature on a form with an enrolment. We have had a number of discussions in
this committee and the Senate committee the AEC comes before in estimates about
the difficulty proving certain electoral offences and the burden of evidence
required for the DPP to take action. I am concerned that, if we move to what I
am going to continue to call automatic enrolment—simply because I think it is
automatic in the sense that it does not require action from an elector—we are
going to lack that signature from a voter. That worried me. If there are cases
of potential electoral fraud, that is one less piece of evidence the commission
will have in its armoury. You currently have a form that you can compare
signatures to if, for example, people are using declaration votes and have to
sign the envelope. That will not be available under these provisions.”[10]
Problems in NSW
The previous NSW Labor Government
introduced automatic enrolment prior to the 2011 State Election and the result
has been that a large number of electors automatically added to the state’s
Electoral Roll failed to turn up to vote at the 2011 Election. Mr Antony
Green, who has previously appeared before JSCEM in a private capacity, noted
that the turnout for first time new enrolments in NSW was only 64.3% out of a
total of 18,996.[11] Mr Green noted in this article that “Turnout is
normally lower amongst 18 and 19 year olds than the rest of the electorate, but
not as low as 64.3%”. This suggests that a large number of automatic
enrolments weren’t properly notified about their enrolment or potentially never
received any correspondence from the NSW Electoral Commissioner. That is a
large number of errors occurred thereby diminishing the integrity of the Roll.
Coalition Members and
Senators note that this would also do significant damage at a Federal level,
where the response rate to correspondence from the AEC is abysmally low. Mr Ed
Killesteyn, Chief Electoral Commissioner, noted on 8 February 2012 that there
is a response rate of only 20 per cent for letters sent out by the AEC:
“The evidence is
already there in terms of the research that we have done, Senator, that people
generally do not respond to the CRU letters. Our response rate at the moment is
about 20 per cent.”[12]
This means there is an 80
per cent failure rate for state enrolees to comply with Federal law. This is a
serious deterioration of the integrity of the Roll. Coalition Members and
Senators are concerned that a number of electors who are added to the Electoral
Roll without their knowledge would potentially receive a fine for not voting,
which is particularly concerning because a number of electors enrolled
automatically may not even be entitled to be on the Roll in the first place.
As noted by the Hon. Bronwyn
Bishop MP, a court “is not to inquire into the correctness of the roll”, meaning
those who have been enrolled automatically may have difficulty removing
themselves from the Roll even if they do not have the right to vote. In Re
Berrill’s Petition in 1975 Mrs Berrill complained that there had been the
wrongful removal or absence of many electors from their sub-divisional roll:
“A three-judge bench of
the High Court sitting as the Court of Disputed Returns rejected the claim on
jurisdictional grounds, citing the prohibition on going behind the roll.
Stephen J noted that this did not mean errors in the roll were completely
unreviewable. Rather, the prohibition assumes errors on the roll ought be put
in order before an election rather than risking ‘dislocation of the democratic
process’ through legal challenges to the roll during the campaign or after the
election.”[13]
The AEC has admitted that
it does not prosecute cases of people who have failed to put themselves on the
Electoral Roll, as is the individual’s legal obligation, whilst under this
legislation those not entitled to be on the Electoral Roll could potentially be
fined for failing to vote. It must also be noted that the failure to comply
with the Electoral Act and notify the AEC of a change in address is a strict
liability offence and yet once again the AEC fails in its obligation to act to
enforce the law. Instead it sees this legislation as relieving it of its
obligations.
Conclusion
Coalition Members and
Senators realise that this Bill is being introduced by Labor and the Greens
solely to increase their electoral advantage, despite the severe risk it
contains to the integrity of the Electoral Roll and significant concerns about
individual privacy. The Coalition notes the complete disregard displayed by
Labor, the Greens and the AEC to maintaining the integrity of the Electoral
Roll and notes that the reliability of the Roll is paramount not only to
ensuring valid elections take place but also in a legal capacity.
The Coalition disagrees with
the blank cheque this legislation gives the Australian Electoral Commission to
decide what information sources it uses to add people to the Electoral Roll.
This legislation does not require the AEC to justify the use of a particular
data source or the potential for Parliament to disallow the use of particular
data sources. This is in contravention to the Labor and the Greens
recommendations to the inquiry into the 2010 Federal Election. Furthermore,
this legislation does not state the level of proof required for the AEC to add
a person on the Electoral Roll, merely that the AEC write to the elector asking
if they have an objection and then notifying them of their enrolment, a process
which in NSW led to only 64.3% of those automatically enrolled showing up to
vote, compared to an overall turnout of 92.3% for the 2011 NSW State Election[14]
The Coalition notes that
this legislation will make it even more difficult for the DPP to prosecute
cases of electoral fraud, with there no longer being a requirement for an
individual elector to provide a signature when enrolling. This poses a further
risk to the integrity of the Electoral Roll and the potential for an increase
in fraudulent voting.
As such, Coalition Members
and Senators believe that this legislation should be rejected by the Parliament
and for the responsibility of enrolling to remain with individual Australian
citizens and not be given to the bureaucracy.
The Hon Bronwyn Bishop
MP
Shadow Special Minister
of State
The Hon Alex Somlyay MP
Deputy Chair – JSCEM
Senator Scott Ryan
Senator
Simon Birmingham