3.1
The elections held successfully in Australia throughout 2020 have provided valuable experience for election management bodies. Because of the different legislative settings for local, state, territory and federal elections, key lessons have been learned about improvements that can be made to the Commonwealth Electoral Act 1918 (Electoral Act) to provide greater certainty to electors that future elections will be held safely and securely, including during emergency situations.
3.2
Submitters to this inquiry canvased a number of issues and identified a number of possible challenges to running elections during times of emergency situations, including the use of different voting methods such as pre-poll, postal and telephone voting; accessibility, election communication and potential impacts on the perceived integrity of the electoral process.
Voting methods
3.3
Many submissions noted that in the event of an emergency it is essential to be flexible in terms of voting methods to encourage voter participation and encourage continued trust in the electoral process, and to provide safety to voters, electoral staff and candidates.
3.4
International Institute for Democracy and Electoral Assistance (International IDEA) noted that the increased use in alternative methods of voting internationally over the past 12 months is driven by the desire for countries to ensure the continued participation of voters in the electoral process noting – ‘participation has, of course, been the driving force for the introduction for these measures.’
3.5
Local Government NSW (LGNSW) advocated for consistency to how votes are cast, traditionally or otherwise, across jurisdictions and recommended that governments should ensure that electors retain choice in their method of voting and avoid measures that will have an adverse impact on voter participation rates, adding that where possible, local, state and federal elections in the same location should be conducted in a manner as similar as possible to encourage voter participation and reduce the risk of voter confusion.
3.6
The issue of alternative voting methods permitted under legislation for those that may be unwell on an actual election day was highlighted by the Department of Health (DoH) as part of a review of the Eden-Monaro by-election. During the pandemic those that were unwell were generally encouraged to stay away from polling stations, however legislation in its current form does not allow for alternative methods of voting on the day for that group of voters.
Postal and in person pre-poll voting
3.7
For federal elections the Electoral Act sets out the following conditions for entitlement for postal and in person pre-poll voting:
are outside the electorate where you are enrolled to vote;
are more than 8km from a polling place;
are unable to leave your workplace to vote;
are seriously ill, infirm or due to give birth shortly (or caring for someone who is);
are a patient in hospital and can’t vote at the hospital;
have religious beliefs that prevent you from attending a polling place;
are in prison serving a sentence of less than three years or otherwise detained;
have a reasonable fear for your safety.
3.8
Many submitters supported the extended use of pre-poll voting as a key way to ease the social distancing challenges of having one main polling day during a pandemic. In particular LGNSW noted that postal voting would reduce the pressure on attendance at polling places ‘ensuring that elections can be conducted in a COVID-safe way if necessary.’
3.9
Others identified possible consequences such as:
the increased resourcing costs associated with longer staffing times, venue hire and protective equipment;
remote voters having unequal access to early voting centres and delayed postal services;
postal votes are less robust then in person voting as the secrecy of the ballot cannot be assured;
the challenge for campaigners in covering longer election campaigning periods; and
the possible effect of a polling period rather than a polling day diminishing the deliberative character of the electoral process and affecting voter engagement.
3.10
For in person pre-poll voting at an early voting centre, the Seniors United Party of Australia and People With Disabilities (WA) proposed that allocating dedicated days within the pre-poll period for seniors and disabled individuals and/or pre-booking voting times would distribute crowds more evenly and support social distancing measures.
3.11
The Seniors United Party also noted that nursing homes were particularly impacted by lockdown measures which may prevent residents from applying for postal votes or attending an in person pre-poll voting centre.
3.12
The Australian Electoral Commission (AEC) noted that it has the capacity to conduct an election by postal vote and that Australia Post has worked constructively with the AEC in the past to ensure the timely and secure delivery and return of postal ballots.
3.13
However, there is currently no power within the Electoral Act to provide for universal pre-poll, either in person or postal voting, for electorates impacted by emergency situations. The AEC stated that this would be a ‘very critical element of agility that would be required in emergency situations’.
3.14
The AEC and the ECG noted measures to support transparent postal voting during emergency times, including:
working closely with political parties in swift return rates of political materials from the parties;
working with Australia Post to ensure service and delivery;
streamlining online postal voting; and
communicating the benefits of online applications for postal voting as opposed to paper applications.
Committee comment
3.15
The Committee acknowledges the proposals to allocate voting times for vulnerable communities, however, it is concerned that this would undermine universal access to the vote. Even in emergency situations, the integrity of the electoral system must be paramount. The Committee can foresee situations where electors being turned away from voting centres reserved for special category electors would seriously undermine the integrity of the electoral process.
3.16
As it has consistently noted in previous inquiries, the Committee remains concerned about the extended pre-poll period becoming the norm for federal elections due to the impact it can have on the deliberative character of elections.
3.17
However, the Committee does acknowledge the benefit of in person and postal pre-poll voting can confer during emergency situations. This is discussed further below. The Committee notes that universal eligibility for postal votes provided significant benefits to Queensland electors in local government elections in early 2020 when the COVID-19 situation was largely unknown and rapidly evolving.
Telephone voting
3.18
Telephone voting in federal elections is available to electors who are blind or have low vision, and electors working in Antarctica.
3.19
It was submitted that expending telephone voting eligibility would benefit elderly Australians and those living with a disability who are vulnerable in a pandemic and those directed to quarantine ort self-isolate.
3.20
Telephone voting was expanded in Queensland for the March 2020 local government elections and the October 2020 general election to include electors who had been directed to isolate or quarantine during the election period and the volume of votes cast through this system rose by 390 per cent.
On the day voting
3.21
Attending a polling place on election day is still the primary way most electors vote in federal elections.
3.22
The Committee heard from a range of submitters, many supporting the continued use of polling centres even in a pandemic. However, many identified areas of concern and issues to be addressed in order to ensure that elections can be held in a safe and secure way to protect the community.
3.23
In a pandemic environment, electoral management bodies need to consider a number of challenges such as:
physical distancing requirements;
hygiene and the additional cleaning requirements;
crowd management and safety measures impact on queues and voter satisfaction;
the impact on campaigners and political parties;
additional resourcing requirements; and the
risk to vulnerable people not eligible for other means of voting.
3.24
As outlined in Chapter 2, the AEC was able to trial its response to these challenges during the Eden-Monaro by-election, which has led to recommended legislative changes, discussed below.
Mobile polling stations
3.25
Mobile polling is an important feature of the electoral system to reach isolated members of the community, such as the elderly, sick and those in remote communities. However, in a pandemic environment, external mobile polling teams entering vulnerable communities can potentially bring disease into those communities and during the various 2020 electoral events some mobile polling was suspended due to this risk. The ability of every Australian to easily access their right to vote and cast a ballot must be maintained as a priority. More work is required engaging with isolated populations, in particular remote communities, to find solutions that enable them to participate in elections in a pandemic environment.
Online voting
3.26
There has been a call of online voting over a number of years to provide a more convenient voting option for electors, provide a secret ballot for blind and low vision electors, for easier delivery of remote voting services and for faster provision of election results. A number of submitters again raised online voting as a possible solution to voting during emergency situations.
3.27
Dr Narelle Miragliotta, private capacity, suggested that internet (online) voting ‘eliminates the need for the voter to leave their home to cast their vote if it is unsafe for them to venture outdoors’. Mr Ian Brightwell suggested that the community sentiment surrounding internet or online voting was ‘positive or at least without ‘major calamity’, and advocated for the establishment of a national body to ‘both research and where appropriate provide systems and support online voting for all Australian jurisdictions.’ Western Australia Centres peak body Linkwest suggested that its communities may feel safer using online voting.
3.28
Technology provider Scytl provided evidence of where electronic voting had already been used within Australia (in NSW in 2015 and 2019; Western Australia in 2017; and Victoria in 2006 and 2010), and made the recommendation:
That legislation be put in place to provide an online voting platform to facilitate the collection of votes from visually impaired voters and potentially other cohorts such as those overseas, as this provides a base which scales to collect ballots in the event of an emergency situation.
3.29
The AEC noted that if requested to implement such a system, there would need to be significant lead time in order to work through the many issues associated with online voting and would involve significant costs.
3.30
This Committee has previously rejected the development of a universal online voting portal stating that the proposal raised:
… significant questions over the capacity of an electronic voting solution to be both cost-effective and protect the security and sanctity of the ballot in the Australian context [and concluded that] there can be no widespread introduction of electronic voting in the near term without massive costs and unacceptable security risks.
3.31
These concerns do not appear to have resolved in the intervening years since that report was released. Cybersecurity expert Associate Professor Vanessa Teague submitted that recent work on current electronic voting systems ‘showed than even sophisticated cryptographic proofs of election integrity could be easily faked’.
Candidates, campaigning and scrutineering
3.32
Emergency situations also impact the ability for candidates to campaign in person or by representation at polling stations and party scrutineers to observe proceedings during the vote count.
3.33
Mr Benjamin Cronshaw, candidate in the 2020 Victoria local council elections submitted:
There were restrictions on candidates in being to door knock or promote themselves publicly in the community under the general COVID-19 rules. This did hamper the exercise of democracy, particularly for new and emerging candidates.
3.34
This is an issue that is outside the remit of Electoral Management Bodies (EMBs) to manage, however, the AEC noted that during the Eden-Monaro by-election it encouraged those campaigning to be aware of health directions and laws in place regarding social distancing. The AEC also provided opportunities for parties and candidates to have their official campaign website address available to voters on the AEC website.
3.35
The Tasmanian Government and the Western Australian Government had provided candidates with alternative ways to reach voters, such as including political material with postal vote applications and how to vote information and dedicated areas at polling stations in which to campaign from each early voting centre.
3.36
Scrutineering is also impacted by physical distancing, with the role of scrutineers being to stand close to those counting the votes. Health officials working with the AEC during the Eden-Monaro by election said:
The scrutiny process requires scrutineers to be very close to the people counting the votes, and an array of things were considered as controls, such as video television, to have a look at the votes. That was found to be impractical, given the number of locations and the logistics in getting that organised. So they used an array of controls using distancing. They used barriers, such as perspex barriers. They also used PPE, where physical distancing and other barriers couldn't be used, and, obviously, respiratory hygiene and other hand hygiene behaviours.
3.37
Scrutineers were not permitted to observe the polling day counts in Queensland (March 2020) and the Northern Territory (August 2020) due to physical distancing requirements. Scrutineers were however permitted to observe the official counts which start on the Monday after polling day.
Proposed legislative amendments
3.38
The Electoral Act is deliberately prescriptive and offers little flexibility for how an election can be conducted, and limited powers to extend flexible polling options (telephone or postal voting) to all electors. Existing provisions of the Electoral Act providing some flexibility are at the following sections:
Temporary suspension of polling (s240A)
3.39
Section 240A gives presiding officers the power to temporarily suspend polling at their polling place for physical or voter safety reasons. The section provides riots, storms, fires, and health hazards as specific examples.
3.40
This power only allows suspension of polling that has already commenced, and only allows for suspensions until later the same day.
3.41
At the 2019 federal election, polling at the Sydney Central pre-poll voting centre (PPVC) at Central Railway Station, Haymarket, was temporarily suspended after a bag was left unattended in the vicinity of the premises. Police attended promptly and polling resumed approximately fifteen minutes later.
Adjournment of polling (s241)
3.42
Section 241 gives presiding officers the power to adjourn polling at their polling place for physical or voter safety reasons. Like section 240A, section 241 provides riots, storms, fires, and health hazards as specific examples.
3.43
This power only allows for adjournment of polling from one day to the next. For an adjournment to continue indefinitely, the presiding officer would need to repeatedly adjourn polling each day.
3.44
At the 2019 federal election polling at the Crows Nest PPVC (NSW) a person died outside the PPVC shortly after voting. Polling was adjourned to the following day.
Adjournment of polling in other cases (s242)
3.45
Section 242 gives presiding officers the general power to adjourn polling if, for any cause, a polling booth at a polling place is not opened on polling day.
3.46
This power only allows for adjournment for up to 21 days.
Extension of time for holding an election (s286)
3.47
Section 286 gives ‘the person causing the writ to be issued’ (that is, depending on the electoral event involved, either the Governor-General, a state Governor, or the Speaker of the House of Representatives) the broad power to extend the time for holding an election in order for ‘meeting any difficulty which might otherwise interfere’ with the election.
3.48
This power has rarely been used and, whilst broad, is not held by any AEC officer. For these reasons the AEC advises it is unlikely that this power could be utilisied at short notice.
3.49
As evidenced by the electoral events held through 2020, these measures are not adequate. To provide greater flexibility the AEC proposed that, in the event of an emergency situation the following be provided for:
extend the reasons electors can postal or pre-poll vote;
conduct an election solely by postal vote;
streamline application and/or declaration requirements for postal voting and pre-poll voting;
expand categories of electors who may utilise the electronic (telephone) voting method; and
operate scrutiny more safely.
3.50
Electoral experts also support the AEC being given flexibility to act in emergency situations.
3.51
However, Professor Anne Twomey raised concerns about the Electoral Commissioner being able to act without the appropriate accountability to the Parliament. She stated:
There should be provision in the legislation to be able to deal with emergencies, including ones that come up very quickly. Again, my personal view is that it's not appropriate for the Electoral Commissioner to make that call. A decision to actually stop voting or to not proceed to voting on polling day is such a significant decision that it should be a decision for which there is political accountability. It should be a decision, in my view, that is formally given assent by the Governor-General and has ministerial responsibilities attached. It could be the Prime Minister or you could have someone else nominated, who is another minister, to be able to do that.
Now, I appreciate the fact that this would be done during the caretaker period. One consequence of that is that, because the government is no longer responsible to parliament because parliament has ceased to exist, there is a factor there where the Governor-General is not formally obliged to act on the advice of a minister who's no longer responsible. In nearly all circumstances, of course, the Governor-General does continue to act on the advice of ministers during the caretaker period, and appropriately so. But there could be a possibility that a prime minister could, for example, advise the Governor-General, under a provision in the act, to prevent voting in an election for purely political reasons that were not related to an emergency. The Governor-General, in a caretaker period, could say: 'No, in those circumstances it's not appropriate. I will not act upon your advice.' Now that's getting into extremes of unlikelihood, but, nonetheless, by having the Governor-General in that role, you have a further level of protection to prevent the politicisation of the action. There have been examples where Governors-General have refused to act on advice during the caretaker period if the action by the government was considered to be inappropriate or to breach caretaker conventions. So it wouldn't be completely unprecedented, and it's a good layer of extra protection to have.
In my view, yes, there should be an ability to call off an election on the day and suspend voting for a future day, because that may be necessary, but it shouldn't be a call of the Electoral Commissioner, who is not a politically accountable officer. It should be the call of the Prime Minister in the circumstances to advise the Governor-General, while also conscious of the fact that the Prime Minister, during a caretaker period, is no longer responsible and that the Governor-General would have the capacity to refuse to accept the advice if it was inappropriate in the circumstances.
Committee comment
3.52
The Committee is of the view that the Electoral Commissioner needs to be granted greater authority to act in the interests of the conduct of a safe, transparent and timely election in the event of an emergency situation. The Committee therefore considers that the Electoral Act should be modified to provide the following authority within the below conditions.
3.53
In emergency situations, the Electoral Commissioner should be granted the authority to modify the conduct of an electoral event to:
extend the reasons electors can vote by post or pre-poll;
streamline application and/or declaration requirements for postal and pre-poll voting;
extend operating or polling hours (pre-poll only)
3.54
The Electoral Commissioner should have the flexibility to determine which of the above modifications are appropriate in the given emergency environment.
3.55
The Electoral Commissioner should only be granted these authorities where an emergency has been declared under Commonwealth, state or territory law. Further the authority must:
be limited to circumstances in which all alternative avenues to conduct an electoral event without exercising emergency provisions have been deliberated and exhausted;
be limited to the extent necessary to conduct an electoral event;
be limited to the geographical area in which the emergency situation has been declared, noting that this may only be part of an electorate;
be exercised by the Electoral Commissioner and cannot be delegated;
be time limited only to the time necessary to respond to the emergency situation and conduct the electoral event.
3.56
To maintain transparency and accountability, on the exercise of any emergency declarations, the Electoral Commissioner must as soon as practicable:
publish the decision to modify the electoral event and the modifications to be made;
inform the Joint Standing Committee on Electoral Matters actions taken.
3.57
Although the Committee is not fully constituted once the House of Representatives has been dissolved for a general election, it is the primary Parliamentary oversight mechanism for the AEC and as such must be able to review any emergency declarations made by the Electoral Commissioner immediately on resumption of its duties.
3.58
The Committee recommends that the Commonwealth Electoral Act 1918 be amended to grant the authority to the Electoral Commissioner, in the event of an emergency being declared by Commonwealth, state or territory law, and to facilitate the safe conduct of an electoral event, to:
extend the reasons electors can vote by post or pre-poll;
streamline application and/or declaration requirements for postal and pre-poll voting;
extend operating or polling hours (pre-poll only);
3.59
This authority must:
be limited to circumstances in which all alternative avenues to conduct an electoral event without exercising emergency provisions have been deliberated and exhausted;
be limited to the extent necessary to conduct an electoral event;
be limited to the geographical area in which the emergency situation has been declared, noting that this may only be part of an electorate;
be exercised by the Electoral Commissioner and cannot be delegated;
be time limited only to the time necessary to respond to the emergency situation and conduct the electoral event.
3.60
To maintain transparency the Electoral Commissioner must, as soon as practicable:
publish the decision to modify the electoral event and the modifications to be made; and
inform the Joint Standing Committee on Electoral Matters of actions taken.
3.61
Given that the definition of ‘nationally significant harm’ is now set out in the National Emergency Declaration Act 2020, the Committee does not consider it necessary to further state these conditions in the Electoral Act as this could prove unnecessarily proscriptive and undermine the flexibility needed to respond to emergency situations.
3.62
There are currently no provisions in the Electoral Act to move a date for polling, however this is an obvious omission in the Electoral Act which should be addressed in circumstances where voting cannot occur on the date fixed for polling.
3.63
The appropriate authority to change the date fixed for polling would be the issuer of the writs being:
the Governor-General; and/or
the Speaker of the House of Representatives;
as the case requires.
3.64
The issuer should act on the advice of the Prime Minister, in line with the conditions set out in the National Emergency Declaration Act 2020. When the House of Representatives has been dissolved for a general election, the Prime Minister should also consult with the Leader of the Opposition and the leaders of any other parliamentary parties prior to providing advice to the Governor-General.
3.65
The Committee recommends that the Commonwealth Electoral Act 1918 be amended to provide conditions to change the date of polling where an emergency situation prevents voting occurring on the date fixed for polling.
3.66
In addition, exiting provisions under sections 240A to 243 of the Electoral Act should be reviewed to ensure that decisions made under these sections are in line with the proposals in this report.
3.67
The Committee recommends that sections 240A to 243 of the Commonwealth Electoral Act 1918 be reviewed to ensure that they are in line with the recommendations set out in this report.
Senator the Hon James McGrath
Chair