Referral
1.1
On 1 September 2021, the Commonwealth Electoral Amendment (Integrity of Elections) Bill 2021 (the bill) was introduced to the Senate on behalf of Senator Malcolm Roberts, as a private senator’s bill.
1.2
On the same day, pursuant to the 11th report of 2021 of the Senate Standing Committee for the Selection of Bills, the bill was referred to the Senate Finance and Public Administration Legislation Committee (committee) for inquiry and report by 14 October 2021.
Conduct of the inquiry
1.3
Details of the inquiry and the bill were made available on the committee's website. The committee also contacted a number of government departments, electoral commissions, organisations and individuals inviting submissions to the inquiry, by 20 September 2021.
1.4
The committee received 12 public submissions, which are available on the committee’s webpage and detailed at Appendix 1. The committee completed its inquiry on the basis of these submissions and on other publically available information on the bill.
Acknowledgement
1.5
The committee thanks those organisations and individuals who provided written submissions to the inquiry.
Report structure
1.6
The report consists of two chapters. This chapter provides a background to the legislation and summarises the provisions of the bill and its two Schedules.
1.7
Chapter 2 presents the key issues raised in evidence about the bill and details the committee’s views and recommendation.
Background
1.8
The bill seeks to amend the Commonwealth Electoral Act 1918 (Electoral Act), to provide for the routine auditing of the electronic component of future Australian federal elections, and for the provision of voter identification at federal elections. The Explanatory Memorandum (EM) clarifies that the bill does not cover referendums.
Auditing
1.9
Noting that the Electoral Act does not currently include provisions for the auditing of technology in an election, the EM suggests that an ‘independent audit of the use of electronic measures in each Federal election will ensure improved confidence’ in the election results. It is argued that this is especially important for the upcoming federal election:
... given the heightened emotions surrounding COVID measures. Unexpected outcomes could be exploited for the benefit of those with a malicious agenda which may lead to violence.
It is essential that the level of trust in the result is commensurate with the current heightened level of risk.
1.10
The EM observes that while the Auditor-General undertook an audit of the 2016 Federal Election, this is ‘the last known election audit for which details have been published’. The bill therefore seeks to create a function for the Auditor-General to in future audit the operation of the Australian Electoral Commission (AEC) twice in each election cycle at the following times:
in the lead-up to an election; and
from when polling opens to the declaration of the poll.
1.11
Focusing only on electronic measures, the intent of such audits would be to determine whether the use of authorised technology ‘produces the same result as would be obtained without the use of authorised technology’.
1.12
One of the main intents of Schedule 1 is summarised in the EM as:
… asking the Auditor-General to ensure that the use of computerised voter rolls, tallying and preference allocations produced a result that accurately reflects the will of the people expressed in that election.
1.13
The EM goes on to note that the Australian Signals Directorate (ASD) is currently conducting a cyber ‘uplift program’ at the Australian Electoral Commission (AEC). However, the EM suggests that, while the program is ‘most welcome’, the Electoral Act contains no provisions to support the program. The bill therefore seeks to bring ‘legislation into line with current practice’.
1.14
The bill would authorise the ASD to ‘audit and monitor computer systems for unauthorised access internally and externally’, targeting both ‘unauthorised access from within the system and unauthorised external access by hackers or malicious entities’.
Voter identification
1.15
In December 2020, the Joint Standing Committee on Electoral Matters (JSCEM) presented its report into the conduct of the 2019 federal election, and related matters. The JSCEM echoed its recommendation of 2016 that legislative amendments be made requiring voters to present a form of acceptable identification to cast a pre-poll or election day vote.
1.16
The bill, at Schedule 2, aims to give effect to JSCEM Recommendation 21 (excluding referendums) which states, in part, that:
voters must present a form of acceptable identification to be issued with an ordinary pre-poll or election day vote. Authorised identification must be suitably broad so as to not actively prevent electors from casting an ordinary ballot.
1.17
The bill would allow a wide range of acceptable voter identification to be provided, with the EM explaining that the bill is drafted to:
… add voter identification to the existing exchange that occurs with the voting officer at the time of voting, which asks if the person has voted already and so on.
The Commonwealth Electoral Act (Integrity of Elections Bill) 2021 is about protecting confidence in our elections. The use of voter identification is integral to that confidence.
Key provisions of the bill
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The bill contains two schedules, detailed below.
Schedule 1 – Auditing
1.19
Schedule 1 would amend Part XIXA of the Electoral Act to allow the Auditor-General to conduct audits of the use of authorised technology at federal elections.
1.20
New section 286AA at Item 1 of the bill would define ‘authorised technology’ as any technology authorised or required by the Electoral Act to be used, for example that used in an election. This would include computer hardware and software and communication equipment. A definition of ‘cyber security of a federal election’ means:
… that the authorised technology used during the election is protected from access, interference and impairment by unauthorised parties; and only accessible by authorised parties.
1.21
Proposed section 286AB provides for the Auditor-General to conduct audits of the use of authorised technology at federal elections, and to provide the results of the audit to the Electoral Commissioner:
at least seven days before voting commences in each federal election; and
within 60 days after the return of the writs for each federal election.
1.22
The proposed section specifies that the Auditor-General must conduct its audit and provide recommendations to the Electoral Commissioner with regard to ‘reducing or eliminating any risks to authorised technology that could affect the security, accuracy or integrity of voting’. In forming these recommendations, the amendments state that the audit must determine whether the use of authorised technology:
produces the same result as would be obtained without the use of authorised technology; or
if it is used to store information—replicates the information that would be stored without the use of authorised technology.
1.23
New section 286AC of the Electoral Act would clarify that the bill relates to all future elections. Noting that the next federal election must be held by May 2022, the EM explains that:
… if the next election is called within 6 weeks of this Bill commencing, then an advance audit will not be conducted owing to time constraints. The post-election audit will still occur and be provided to the AEC within 60 days of the return of writs. Nothing in this section limits the Auditor-General from exercising their powers under this bill.
1.24
Proposed section 286AD relates to the ASD and would provide the ASD with authority to ‘prevent and disrupt any interference with the cyber integrity of federal elections’, during the following periods:
starting at the issue of writs for a federal elections; and
ending at the return of writs for that federal election.
1.25
The Director-General of the ASD must then advise the Electoral Commissioner on the cyber integrity of each federal election.
Schedule 2 – Voter identification
1.26
Item 1 of Schedule 2 would insert new subsection 4(1) into the Electoral Act, to insert definitions for a ‘community identity document’, ‘Indigenous person’ and ‘proof of identity document’. Under the bill proof of identity documents include the following:
… current driver’s license, Australia[n] passport, proof of age card, enrolment to vote acknowledgement letter, local government or utility account, phone bill, income tax assessment notice and community identity document.
1.27
Acceptable ‘community identity documents’ would be defined by rules under new section 394A of the Electoral Act, inserted by Item 12 of the bill. The bill would require the rules to be a legislative instrument which would prescribe:
the circumstances in which a document is a community identity document;
the form of a community identity document; and
matters ‘necessary or convenient to be prescribed in relation to the use of a community identity document as a proof of identity document’.
1.28
Proposed subsections 394A(2) and (3) enables the rules to provide for the meaning of terms including ‘disadvantaged’, ‘remote area’ and ‘employee of a local health or welfare service’. The EM explains the intent of this provision:
The purpose is to enable the implementation of the part of recommendation 21 [of the JSCEM report] that referred to enabling a local health or welfare service to vouch for the identity of itinerant voters, remote Indigenous voters, and disadvantaged persons. The rules must provide for an employee of a local health or welfare service to give a community identity document in relation to such a person if satisfied of their identity.
1.29
The bill would make the necessary amendments to the Electoral Act to provide that approved identification documents are provided prior to voting. For example, Items 2 to 4 of the bill would amend subsections 200DG(1) and (2) to make a person’s entitlement to vote by pre-poll ordinary vote ‘contingent on the person showing their proof of identity document to a voting officer and the voting officer being reasonably satisfied of the person’s identity’.
1.30
Items 5 and 6 of the bill would repeal and insert new sections into the Electoral Act (sections 200DI and 229), providing the requirements for voting officers, presiding officers or polling officials when deciding whether a person is eligible to vote by pre-poll ordinary vote, or in an election. Proposed subsection 229(3) also puts forward circumstances when persons claim to vote must be rejected.
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In the event that a person’s identity is not rejected for failure to provide proof of identity, Item 7 would clarify that the person is entitled to receive a ballot paper.
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Items 8 to 11 would make provisions in relation to provisional votes. The EM explains that these items would amend section 235 of the Electoral Act to:
… provide that a person may be entitled to cast a provisional vote if they fail to show their proof of identity document to a voting officer or fail to answer a question put to the voter under paragraph 229(1)(b), or the voting officer is not reasonably satisfied of the person’s identity.
Human rights compatibility statement
1.33
The EM is accompanied by a Statement of Compatibility of Human Rights, which notes that the bill ‘engages the right to vote and to be elected at genuine periodic elections’. The Statement argues that the bill promotes this right, as:
The only way to know if a federal election is genuine and effective and expresses the will of the electors is to conduct an independent audit, and to make those results known.
1.34
With regard to voter identification, the Statement suggests that such a process:
… ensures that all those who did vote legally are not denied the equal weight of their vote by those who voted illegally or multiple times. This is both the theory and the empirical evidence from voter identification laws.