Introduction
I thank the Committee for their work and thank the people who have taken the time to make a submission.
I note that the Australian Electoral Commission (AEC) did not make a submission. This has not been a topic they wish to speak about. The Australian public does.
In reading all of the submissions it is clear that the Australian National Audit Office believes that the audit provisions of the Commonwealth Electoral Amendment (Integrity of Elections) Bill 2021 go too far and Australian academics believe it does not go far enough.
The Committee has decided that a bill which implements recommendation 21 of the Joint Standing Committee on Electoral Matters (JSCEM) report into the 2019 federal election, using the same wording as the recommendation, should not be implemented.
This tells me that my bill is not being considered as a bill about election integrity, in which case it is well weighted, but rather a bill about political ideology.
Electoral integrity is the foundation upon which support for our government is based.
Questions as to the validity of the election outcome must necessarily then go to questions as to the validity of the Government.
Doubt about an election outcome destroys trust in government. These are matters of national significance and must be decided without resorting to political and bureaucratic tribalism.
It is my duty to the people of Queensland and Australia to ensure honest governance, and that includes honest elections.
After 9 months of questions to the Australian Electoral Commission and to the Minister representing the Minister Assisting the Prime Minster, it became obvious that simple questions I had regarding the routine auditing and integrity of federal elections were not going to be answered.
My bill sought to place the issue of election integrity to the forefront in this upcoming election cycle.
I requested this inquiry into the Commonwealth Electoral Amendment (Integrity of Elections) Bill 2021 to create a dialogue around issues of auditing and voter integrity.
I welcome the submissions that were made and note there were several suggestions to improve the drafting of the Commonwealth Electoral Amendment (Integrity of Elections) Bill 2021.
Submissions
Professor Graeme Orr
Professor Graeme Orr disagreed with the Voter ID provisions but did make the following suggestions:
To require the AEC to advise all electors who vote by provisional or declaration ballot, whether their ballot was admitted to the count. Presently, this is not a routine requirement. Without it, electors who are unable to place their ballot into a ballot box – because they cannot not vote in person, or because of an issue necessitating a ‘provisional’ ballot – are left in a ‘black box’ state. This is undesirable in a modern electoral system; especially given contemporary technologies (email or SMS).
To make clear that polling officials must offer a provisional ballot to all voters who cannot meet the ID requirements.
These are both valid improvements to my bill and will be added.
Dr Vanessa Teague
Dr Teague is one of Australia’s leading cryptologists and has been involved directly with auditing of elections at a federal and NSW state level. My office sought out Dr Teague in January for her input to this bill and contact has been maintained through the year.
Dr Teague opened with the following observation:
… (this bill) aims to improve the integrity of Australian elections in two ways:
(1)
securing voter eligibility, and
(2)
securing the electronic processing of votes.
While I support both aims, I do not believe the Bill meets its goals.
The first part of the bill concerns the auditing of electronic electoral processes. This is well-intentioned, but needs to be substantially amended to provide scrutineers with evidence of the accuracy of the election outcome. The clauses on voter identification may do considerable harm by wrongly excluding eligible voters.
Let me address specific concerns raised by Dr Teague:
The Bill currently has important drafting problems … The Bill is ambiguous about whether it requires only a system audit, or a post-election audit of the paper ballots. Only the latter gives genuine evidence of an accurate election result.
The Commonwealth Electoral Amendment (Integrity of Elections) Bill 2021 sets the test of election integrity as follows:
… that the use of authorised technology produces the same result as would be obtained without the use of authorised technology.
It would be impossible to resolve that test without checking the electronic record of the vote back to the printed record, and vice versa. To suggest this and many other provisions are specifically required in this bill is an unwarranted interference in the activities of the Auditor General.
It allows the ANAO audit report to be delivered privately to the Electoral Commissioner but not published—this does nothing for public trust.
It would be entirely appropriate to allow the AEC access to the report and an opportunity for comment prior to public release. Inclusion of a provision to ensure the report is made public should have been included in the bill and will be included in an amendment.
It allows the audit, and the corresponding report, to be delayed until 60 days after the return of the writs. This means that serious errors might be identified only after it is too late to petition to correct them.
The Commonwealth Electoral Amendment (Integrity of Elections) Bill 2021 includes a pre-audit of the election to ensure ‘serious errors’ are prevented from occurring in the first place. The post-audit starts on the first day of pre-polling and extends throughout the election and counting period, which currently takes 30 days. Then the Auditor-General will have 30 days to finalise the report. If any ‘serious errors’ occurred they would be revealed in real time and corrected as the count progressed.
Having mind to the proximity of the next election, the Commonwealth Electoral Amendment (Integrity of Elections) Bill 2021 was drafted as a simple fix to direct the Auditor General to audit the next election, and to allow the Auditor General to exercise their own judgement as to the most effective way to achieve that.
Likewise, the section on Voter ID allows the AEC to make rules to govern the operation of Voter ID, as is the normal practice, and I would expect those would reflect Dr Teague’s concerns. Note that those regulations would be a disallowable instrument.
Recommendation 5 of the JSCEM Report into the 2019 election called for a rewrite of the Commonwealth Electoral Act 1918 to ‘make it fit for purpose’.
Dr Teague’s opus novum is best directed to that reform process when it starts, and I welcome Dr Teague to be actively consulted in the review process.
Dr Bruce Baer Arnold
Dr Arnold made this statement:
There is however no hard evidence regarding large-scale multiple voting (as distinct from very small-scale errors in mark-offs by officials). There is no hard evidence of systemic impersonation.
The Australian Electoral Commission employs exception auditing. Put simply if nothing stands out as abnormal then nothing is found to be abnormal. To then use the absence of the detection of abnormal behaviour by the AEC as proof that the Commonwealth Electoral Amendment (Integrity of Elections) Bill 2021 is not needed is a very poor argument.
I would inform Dr Bruce Baer Arnold of the standard procedure for regulations to be issued by the AEC to cover the operation of these new provisions. Those regulations are where matters that may change from election to election are contained, not in legislation.
Document forgery is of course an issue, but not one which should preclude us from trying to ensure every vote counted was legally cast.
Australian Human Rights Commission
The Australian Human Rights Commission makes the same logical fallacy regarding the absence of proof of voter fraud as other submissions. The use of exception auditing by the AEC means any voter fraud that can be done expertly will not be detected. Ergo the absence of proof of voter fraud does not prove fraud did not occur, it only proves fraud was not detected. Hence the need for an independent, external audit.
Australian National Audit Office (ANAO)
In its submission, the Australian National Audit Office (ANAO) made this admission:
In accordance with the Auditor-General’s mandate under the Auditor-General Act 1997, the Auditor-General is empowered to conduct a review or examination of a particular aspect of the operations of the AEC at any time.
My next comment references this ANAO report: Third Follow-up Audit into the Australian Electoral Commission’s Preparation for and Conduct of Federal Elections. ANAO audited the AEC and released their findings in 2015. That report found:
The actions taken by the AEC prior to the 2013 election in response to previously agreed ANAO recommendations have not adequately and effectively addressed the matters that led to recommendations being made.
ANAO conducted the last known audit of the AEC in 2015, or at least the last known audit for which any public proof exists.
They concluded that their previous recommendations to ensure voting integrity had not been adequately implemented. ANAO have had the power to go back and look at any time in the last 6 years to ensure that those recommendations were subsequently implemented and they have not done so.
No other audit or outside scrutiny has occurred that go to software and internal processes (as opposed to the Australian Signals Directorate uplift program on network and device security).
The Australian people still do not know if the AEC has fixed the problems ANAO found in 2015 and that is just not good enough. It is not good enough that ANAO have not gone back to find out themselves.
Recommendations
Recommendation
The Commonwealth Electoral Amendment (Integrity of Elections) Bill 2021 be passed with amendments.
Recommendation
The Prime Minister consider an instruction to the Auditor General to initiate a follow-up audit to the three audits conducted by the Australian National Audit Office to determine if Australian Electoral Commission processes are now fit for purpose. This report should be concluded by February 28th 2022.
Senator Malcolm Roberts
PHON Senator for Queensland