Chapter 2 2010 election overview and key issues

Background including significant events

2.1                   The 2010 federal election was announced by the Prime Minister, the Hon Julia Gillard MP, on Saturday 17 July 2010. Writs for the election were issued on Monday 19 July for the House of Representatives election and a half Senate election.

2.2                   Issue of the writs triggers a timetable which is specified in the Commonwealth Electoral Act 1918 for a range of tasks and key events including the close of the electoral rolls, the nomination of candidates, the declaration of nominations, and polling day.  The dates for other activities, including the commencement of pre-poll voting and the return of the writs, flow on from these events (Table 2.1). A number of legislative changes arising out of the majority report recommendations made by the Committee in its Report on the conduct of the 2007 federal election and matters related thereto have been implemented, but some were not in force at the 2010 election. Details of those changes, along with others still to be implemented are contained in Appendix D to this report.

2.3                   Issue of the writs also saw the commencement of a number of legislative changes contained in the Electoral and Referendum Amendment (Modernisation and Other Measures) Act 2010 (Modernisation Act) and in the Electoral and Referendum Amendment (Pre-poll Voting and Other Measures) Act 2010 (Pre-poll Act).

2.4                   These changes as well as other matters discussed below impacted on both the election timetable and a multitude of tasks required to be undertaken by the Australian Electoral Commission (AEC), to bring about the successful conduct of the 2010 federal election.[1]

2.5                   As a result of amendments to the Commonwealth Electoral Act made by the then Government in 2006, the close of rolls period for federal elections changed from seven days after the issue of the writ to 8 pm on the day that the writs for an election were issued for a person enrolling for the first time or re-enrolling after being removed from the roll.[2]

2.6                   Those amendments also provided for a period of three working days after the writs for people to complete and submit an enrolment form in limited circumstances:

• if a person is 17 years of age, but will turn 18 between the day after the issue of the writs and election day (inclusive);
  
  
• if a person will become an Australian citizen between the day after the issue of the writs and the day before election day (inclusive); or
  
  
• if a person is on the electoral roll, but with an out of date address or name details.

2.7                   The cut-off date for new enrolments for the 2010 federal election was 8 pm on Monday 19 July 2010, with the cut-off for other changes being 8 pm on Thursday 22 July 2010. These are referred to as the original close of rolls dates.

2.8                   Following the original close of rolls dates, and subsequent to all original enrolment processing being completed by the AEC, certified lists of electors for all 150 electoral divisions were finalised, printed and distributed, with many being utilised for the issue of pre-poll ordinary votes from Monday 2 August 2010 when pre-poll voting commenced.

2.9                   However, on 6 August 2010, some two weeks after the original close of rolls deadline of 22 July 2010, and just 15 days before polling day, the High Court of Australia ruled in the case of Rowe v Electoral Commissioner [2010] HCA 46 (Rowe) that certain amendments made to the Commonwealth Electoral Act to shorten the close of rolls by the then Government were constitutionally invalid.[3] In effect, the seven day close of rolls had been reinstated.

2.10               As a result of the High Court decision in Rowe, the AEC was required to process those enrolment applications received after the two original enrolment cut-off dates, but which were received on or before 8 pm on Monday 26 July 2010.

2.11               Processing of those affected enrolment applications was completed on Friday 13 August 2010, resulting in 57 732[4] new electors added to the electoral roll, and some 40 408[5] changes to enrolment details being made.

2.12               The AEC decided that the most appropriate way to deal with the additions and changes to the certified lists that became necessary as a result of the High Court’s decision in Rowe, was to print and distribute supplementary certified lists containing the names of electors added to the roll and those whose enrolment details had been changed during the extended close of rolls.

2.13               The AEC took the view that the availability of supplementary certified lists would enable affected electors to have their names marked off on the certified list and have an ordinary vote, as distinct from a provisional vote. Casting an ordinary vote is the simplest way to vote and is the method used by the majority of voters.[6]

2.14               The Governor-General’s agreement was therefore sought to issue supplementary certified lists. This was done by Proclamation under section 285 of the Commonwealth Electoral Act on Friday 13 August 2010.

2.15               The AEC then produced the supplementary certified lists, with a single supplementary certified list being printed and distributed to each of the polling places used on polling day.

2.16               In addition, and also on Friday 13 August 2010, the Federal Court of Australia upheld the use of a digital signature in completing a claim for enrolment. In Getup Ltd v Electoral Commissioner [2010] FCA 869 (the Getup case) the Federal Court held that a claim for enrolment completed on Getup’s ‘ozenrol’ website and signed digitally by Ms Sophie Trevitt, using a digital pen on a trackpad and witnessed using the same technology, met the requirements of the Commonwealth Electoral Act. Ms Trevitt was subsequently added to the electoral roll and was able to vote on 21 August.[7]

2.17               At the close of nominations on Thursday 29 July 2010, 849 candidates were nominated to contest the 150 House of Representatives seats, and 349 candidates had nominated for the 40 vacant Senate seats in the half Senate election.[8]

2.18               Polling day, which is required to be held on a Saturday and at least 33 days after the issue of the writs, was held on Saturday 21 August 2010.[9] The time between the announcement of the election and polling day was 35 days in contrast to the 41 days in 2004 and 2007. The time between the issue of the writs and polling day was the minimum allowable under the Commonwealth Electoral Act, 33 days.

Table 2.1 2010 federal election timetable

Event	Date
Election announced	Saturday 17 July 2010
Issue of writs	6 pm Monday 19 July 2010
Close of rolls – cut off for new enrolments	8 pm Monday 19 July 2010
Close of rolls – cut off for changes	8 pm Monday 22 July 2010
Close of rolls as determined by the High Court decision	8 pm Monday 26 July 2010
Cut off time for inclusion in supplementary certified lists	8 pm Monday 26 July 2010
Close of nominations	12 pm Thursday 29 July 2010
Declaration of nominations	12 pm Friday 30 July 2010
Commencement of pre-poll voting	Monday 2 August 2010
High Court decision in Rowe	Friday 6 August 2010
Federal Court decision in Getup Ltd v Electoral Commissioner [2010] FCA 869	Friday 13 August 2010
Governor-General makes Proclamation under s285 of the Commonwealth Electoral Act 1918	Friday 13 August 2010
Polling Day	Saturday 21 August 2010
Return of writs
Senate writ for Tasmania	Friday 10 September 2010
Senate writ for Queensland	Wednesday 15 September 2010
Senate writ for Western Australia	Thursday 16 September 2010
Senate writ for New South Wales	Thursday 16 September 2010
Senate writ for South Australia	Friday 17 September 2010
Senate writ for Victoria	Friday 17 September 2010
Senate writs for the ACT and NT	Friday 17 September 2010
House of Representatives writs for all states   and territories	Friday 17 September 2010

Source Australian Electoral Commission, Submission 87, pp. 16 and 33-34.

Table 2.2 Time between the issue of the writs and polling day, 1993 to 2010 elections   

	1993	1996	1998	2001	2004	2007	2010
Issue of writs	8 Feb	29 Jan	31 Aug	8 Oct	31 Aug	17 Oct	19 Jul
Polling day	13 Mar	2 Mar	3 Oct	10 Nov	9 Oct	24 Nov	21 Aug
Total Days	34 days	34 days	34 days	33 days	40 days	39 days	33 days

Source Australian Electoral Commission, Submission 87, p. 6; Joint Standing Committee on Electoral Matters, Report on the conduct of the 2007 federal election and matters related thereto, Commonwealth of Australia, June 2009, p. 7.

Administration of the 2010 federal election

2.19               As noted earlier, a number of legislative changes flowing from recommendations contained in the Joint Standing Committee on Electoral Matters’ Report on the conduct of the 2007 federal election and matters related thereto were implemented and took effect at the 2010 federal election. These changes included provisions for:

• home division pre-poll votes to be cast and counted as ordinary votes;
  
• online and written advice of enrolment changes; and
  
• provisional enrolment of 16 year olds.[10]

2.20               The AEC also made a number of changes to update or introduce new election systems. These included the introduction of a new enrolment system (GENESIS), a new online recruitment system for polling officials (ORS), and a new internet based training system for polling officials (Checkpoint). Opposition members particularly note the Community and Public Sector Union’s (CPSU) evidence which said there were enormous concerns with the system, which meant that fewer people were added to the roll in 2007 than in 1990:

We understand from the user tester groups that things are improving, but we are not in a position to say that the throughput of GENESIS is comparable to that which was achieved through RMANS in years gone by. And you do note earlier that there were previous elections with a greater number of enrolment transactions occurring. In 1990, when RMANS was introduced, they put through 594,612 at that time, and it is curious that 20 years later a new system is slower.[11]

2.21               The CPSU was critical of the AEC’s decisions to implement election systems that were either not fully tested or did not perform to the required standards, noting that they had an adverse effect on staff:

Consultation with CPSU members, and staff more broadly in the AEC, has identified that the 2010 Federal Election presented significant difficulties for AEC staff. Anecdotal commentary and specific surveying shows that AEC employees found this election to be the most problematic and stressful in recent memory...

CPSU members in the AEC express disappointment at the timing of the implementation of the ORS and Checkpoint systems. There is further discontent that failings of the GENESIS system that were identified were unheeded by AEC senior management. It is argued that these newly introduced systems created significant negative effects during the 2010 election period.[12]

2.22               The volume of enrolment transactions experienced at the 2010 election was significantly higher than experienced in recent elections. 

2.23               The CPSU indicated that under the RMANS standard data entry rates for new enrolments were about 30 to 40 per hour, but that under the new system, GENESIS, this dropped to 16 to 18 per hour.[13]

2.24               The 2010 federal election was the first winter election held since 1987, with the AEC noting that the timing of the election affected, among other things, the availability of polling officials, some polling places and voting patterns across the country.[14]

2.25               The AEC submitted that the 2010 federal election proved to be a difficult election to conduct, citing such matters as the short election period, the timing of the election, the various roll closes and the increased workloads associated with enrolment and public enquiries, which significantly exceeded the AEC’s predictions.[15]

2.26               The AEC noted, both in its submissions and in evidence to the Committee that conducting the 2010 federal election presented it with a number of challenges. Some, like the challenges presented by the necessity to prepare supplementary certified lists, saw the AEC perform at the high level of professionalism expected by stakeholders.

2.27               Others, like the challenges presented by the timing of the election, the implementation of new election systems, the difficulties in managing the enrolment workload and the mishandling of pre-poll votes in the divisions of Boothby in South Australia and Flynn in Queensland, saw the AEC perform below some stakeholder expectations.

Comments on the conduct of the 2010 federal election

2.28               Inquiry participants were critical of the AEC for the mishandling of pre-poll votes in the divisions of Boothby and Flynn, which resulted in some 4 300 votes being excluded from the count.

2.29               The Australian Labor Party (ALP) noted the events, submitting that they were caused by AEC officials not following proper procedure:

The ALP notes that during the 2010 Federal Election around 4,300 enrolled voters were disenfranchised in the electoral divisions of Boothby (SA) and Flynn (QLD) by having their votes excluded from the count.

This disenfranchisement occurred as a result of irregularities in the opening of ballot boxes at pre-poll voting centres in both of these divisions. These irregularities were caused by AEC officials not following proper procedure.[16]

2.30               Similarly, The Nationals expressed their concerns, noting that:

During the 2010 election some 1,300 voters in the Flynn electorate and 2,980 voters in Boothby had their votes excluded from the count as a result of polling official error. The Nationals acknowledge that the AEC took prompt action and is moving to implement improvements to prevent a repeat of this occurring.  Nevertheless, some 4,300 voters were disenfranchised from the 2010 election.  On this occasion it did not affect the result in those seats.  However, the breakdown in the integrity of the electoral system did cost those people their right to have their vote counted.[17]

2.31               The Liberal Party of Australia also voiced serious concerns about the incidents in Boothby and Flynn, which led to the exclusion of votes and disenfranchisement of voters.[18]

2.32               While submitters were troubled that the incidents had occurred, most were of the view that the AEC took appropriate steps to ensure that the events were reported in a transparent manner and that prompt action was taken to investigate and address the causes. Opposition members of the Committee note that this incident has showed that there is a real risk to the integrity of the electoral process and it is thus very important to ensure that the AEC is given greater powers to investigate electoral fraud and prepare briefs for criminal prosecution, where appropriate.

2.33               An independent review was conducted by former Electoral Commissioner, Mr Wilfred (Bill) Gray AM. He found that the premature opening of the ballot boxes was polling official error and not tampering, and made a number of recommendations to help to minimise the potential for a repeat of these incidents.[19]

2.34               The Liberal Party of Australia commented on the subsequent action taken, stating:

We strongly support the recommendations of the inquiry conducted by Mr W Gray into this matter and emphasise the importance of thorough training for officials placed in charge of polling centres.[20]

2.35               The Australian Labor Party similarly acknowledged:

...the prompt investigation undertaken by the AEC and supports the subsequent recommendations made by the AEC, including that training and manuals for AEC staff be reviewed following this incident.[21]

2.36               Mobile polling was also subject to some criticisms, particularly in the seats of Grey and Lingiari, with the Member for Grey, Mr Rowan Ramsey MP noting in his submission:

Davenport mobile booth is also a considerable waste of taxpayer’s money when most of the people using it are driving out from Pt Augusta and those few living there go into town for everything else, bread and milk etc.[22]

2.37               The Hon Warren Snowdon MP, Member for Lingiari, submitted that whilst the staff of the AEC were proactive in discussing planned mobile polling arrangements with political parties, the mobile polling schedule needed serious review:

The remote polling booth schedule needs a serious review. The schedule of communities that receive a mobile polling booth appears to be largely based on historical information and in some cases no longer adequately represents where electors reside. For example there are a number of homelands across Arnhem Land that historically have never been offered a mobile polling booth, certainly in recent times. With the growth of population in many of these smaller homeland communities it is apparent that a schedule drafted many years ago may be ‘out of date’ as far as where electors reside now. Homeland Resource Centres like Laynhapuy in North-east ArnhemLand, Marthakal on Elcho Island, Bawinanga at Maningrida, Julalikari at Tennant Creek and Demed at Gunbalanya could provide more ‘up to date’ information on where electors actually live.[23]

2.38               Another issue of concern during the 2010 federal election was the timing of the 2010 Redistribution of Victoria. The Liberal Party of Australia and The Nationals observed that it caused confusion and added complexity to the conduct of the election in that state.[24]

2.39               While a number of inquiry participants brought other administrative matters to the attention of the Committee, the Committee is not in a position to rigorously examine each individual complaint or concern. Rather, the Committee has sought to tackle issues that are indicative of systematic problems and, where appropriate, to make recommendations designed to improve the electoral system and its administration by the AEC.

2.40               With the exception of the matters outlined above, overall, inquiry participants told the Committee that the AEC had done a good job in conducting the 2010 federal election.

2.41               With some 563 638 enrolment transactions processed during the close of rolls,[25] over 14 million electors on the electoral roll,[26] 1 198 candidates contesting 190 vacancies,[27] 43 million ballot papers produced,[28] 13 619 586 Senate votes issued,[29] 8 803 separate polling venues and teams in Australia and 103 overseas,[30] the logistical challenges the AEC faces in conducting a federal election are significant.

2.42               Mr Brad Henderson, appearing on behalf of The Nationals, told the Committee:

I would also like to place on record our party’s thanks to the AEC and the people of the AEC for all their efforts in running what was overall a smooth and successful electoral process in 2010.[31]

2.43               Mr Brian Loughnane, appearing on behalf of the Liberal Party of Australia, told the Committee:

The Liberal Party believes the election was well administered by the Australian Electoral Commission and I would like to publicly thank the commission for its consultation and cooperation with the parties in the lead-up to and during the campaign. While there are areas we believe can be improved upon and which we comment on in our submission, we do wish to record our appreciation of the AEC’s conduct of the election.[32]

2.44               The AEC, whilst noting its own failings, submitted that:

The 2010 federal election in virtually all respects met the community’s expectations. Polling proceeded as scheduled. Against the background of the closest federal election since 1940, results were delivered credibly and expeditiously, and none of the parties represented in the Parliament petitioned the Court of Disputed Returns.[33]

2.45               Opposition members believe that the problems experienced at the 2010 federal election show there is a definite need to establish a fraud squad as part of the AEC, which would have the power to investigate and prepare briefs for the Commonwealth Director of Public Prosecutions (DPP) to prosecute cases of fraudulent voting. Opposition members note that the AEC provided figures which outlined there were 20,633 cases of multiple voting in 2007, 14,402 cases in 2004 and 16,949 cases in 2001. Whilst most of these cases would have been genuine mistakes, Opposition members believe that it does show that multiple voting is a serious problem that has not been sufficiently reviewed by the Committee. These members contend that the AEC claims that these cases resulted in no prosecutions, although further advice from the Parliamentary Library confirms that there were in fact three prosecutions. The Parliamentary Library also notes that the Australian Federal Police cited a lack of resources for its inability to make successful prosecutions.

2.46               Opposition members noted Parliamentary Library advice to them that of the 31 incidents of possible fraud recorded by the AEC during the 39^th Parliament, 25 were referred to the AFP for investigation. The AFP declined to investigate six of the matters referred to it. In all but one of these cases, the AFP indicated a lack of resources prevented it from investigating. Six incidents remain under investigation by the AFP, and six incidents were accepted by the AFP but did not proceed any further due to lack of evidence. Of the remaining seven cases, two remain under consideration by the DPP, two were rejected by the DPP due to lack of evidence, and three resulted in prosecutions.

2.47               Further, Opposition members noted the AEC’s advice that it can only prepare briefs on suspected incidents on fraudulent voting and pass them on to the AFP for investigation and possible prosecution.

2.48               Opposition members feel there is a strong need to combat fraudulent voting, which has not been seriously investigated by successive governments in recent years. These members feel that a dedicated fraud squad within the AEC with the power to investigate and refer matters to the Commonwealth DPP is vital to reduce the impact of voter fraud, serve as a deterrent to potentially fraudulent voters and to help maintain the integrity of the Electoral Roll.

Legislative changes in force at the 2010 federal election

2.49               The major change to election processes resulting from legislative amendments made by the Government following the 2007 federal election related to the issue of home division pre-poll votes.

2.50               At the 2010 federal election, electors who met the criteria for casting a pre-poll vote, and who attended at a pre-poll voting centre operating for their enrolled division, were able to cast a pre-poll ordinary vote.

2.51               The AEC reports that some 996 875 home division pre-poll votes were cast as ordinary votes at the election,[34] enabling those votes to be counted on election night rather than the following day.

2.52               With the exception of the events in the divisions of Boothby and Flynn, where ballot boxes containing ordinary ballot papers were opened prior to the close of poll, resulting in those ballot papers being removed from the count, there appear to have been no significant problems with managing the legislative change.

2.53               As noted earlier, electors were able to notify changes of address to the AEC either online or in writing. The AEC reported that some 21 000 already enrolled electors utilised the AEC’s SmartForm system during the close of rolls, which allowed the elector information to be forwarded to the AEC electronically, without requiring a signature.[35]

2.54               The SmartForm system utilises the whole of Government smart forms service which is operated by the Department of Innovation, Industry, Science and Research, managed by the Australian Government Information Management Office and is hosted on the www.australia.gov.au website.[36]

2.55               Electors enrolling for the first time, or re-enrolling after having been removed from the roll, also utilised the SmartForm system. In such cases, electors were required to print a completed SmartForm and send it by mail or by facsimile to the AEC.

2.56               The AEC reports that SmartForm was not without its problems, noting that due to high demand on 19 July 2010, the initial close of rolls for new enrolments, a number of SmartForm service outages occurred.

2.57               During the outages, messages on the site redirected users to an alternative electronic version (PDF) of the standard paper enrolment form, which could be printed, then faxed; or scanned, then emailed to the AEC.

Committee conclusion

2.58               The Committee notes that overall, the AEC administered most aspects of the 2010 federal election with a high level of professionalism, diligence and expertise.

2.59               The Committee notes with a high degree of concern that a significant number of pre-poll votes were disqualified from the count due to errors made by pre-poll voting officials in the divisions of Boothby (SA) and Flynn (Qld). However, the Committee is satisfied that the AEC has taken responsibility for the errors, understands the gravity of the matter and will act to prevent any such further occurrence.

2.60               The Committee also remains concerned about the state of the electoral roll for the election, especially the high number of missing electors and the limitations imposed by outdated electoral legislation, which serves to prevent the AEC from taking reasonable and effective steps to arrest the decline in participation. Opposition members of the Committee are also concerned about the state of the electoral roll and believe that any move which increases the integrity and reliability of the roll should be investigated. Opposition members oppose any move which seeks to reduce the reliability of the roll through the introduction of automatic enrolment, relying on a Government agency or any other party other than the individual elector, to update an elector’s details.

2.61               Whilst the Committee appreciates that an election brings about significant and increased workloads for the AEC, it has formed the view that in a number of aspects, the AEC made the task of conducting the election more difficult than it should have been.

2.62               Such was the case with the decision to implement new systems for election processing, including the online recruitment system and the Checkpoint training system for the training of polling officials.

2.63               The Committee is concerned that AEC management failed to heed the warnings from experienced AEC staff about the failings of the enrolment system GENESIS, and notes that it was the CPSU, not the AEC, that brought specific concerns about these issues to the notice of the Committee.

2.64               The Committee notes with concern the difficulties experienced by electors, and the adverse consequences for staff and polling officials employed by the AEC, because of the use of systems which did not live up to expectations.

2.65               Proper, adequate and timely user testing of in-house AEC systems and the SmartForm system should have been undertaken in order to identify the issues subsequently experienced and mitigate them, prior to their use at an election.

2.66               Whilst the workload challenges identified by the AEC were somewhat exacerbated by a sequence of events following the High Court’s ruling in Rowe, the AEC should have expected that an increasing number of interactions initiated by electors would occur electronically, and that it would experience significant and increased workloads on or subsequent to an election announcement.

2.67               Indeed, the AEC knew the poor state of the electoral roll for over two years in the lead up to the election, and has long held the view that ‘[e]lections at state, territory or federal level act as catalysts for electors to update details or enrol’.[37] Opposition members believe that the AEC should do more to ensure that the electoral roll is kept up-to-date and that integrity is maintained.

2.68               In the opinion of the Committee, the poor state of the roll made it inevitable that an election announcement would galvanise significant numbers of Australians to update their enrolment details, or to enrol as a matter of priority.

2.69               The Committee notes that electors interact with the AEC with a renewed sense of urgency once an election has been announced, and understands that electronic interactions occur with a degree of immediacy not previously experienced when paper based enrolment forms sent through the postal system were the norm.

2.70               The Committee believes that the AEC can expect increasing workloads and must work to better position itself to ensure that all interactions with electors and potential electors, whether written or electronic, are processed to completion in the timeframes required by an unexpected election announcement, without compromising electoral integrity.

2.71               The Committee fails to understand how the AEC did not anticipate the immediate and significant workloads it experienced following the election announcement. Given the factors outlined above, along with the AEC’s stated desire to move toward greater levels of electronic interaction, the Committee is of the view that the AEC should have been better prepared to deal with the workloads experienced in 2010.

2.72               Further, the Committee is of the opinion that the new GENESIS enrolment processing system should have been capable of quickly processing significantly more transactions than its predecessor RMANS.

2.73               In terms of other significant matters, the Committee notes and supports the decisions made by the High Court of Australia in Rowe, which led to the reinstatement of the seven day close of rolls for elections, and the Federal Court’s decision in the Getup case, which permitted the use of an electronic or digital signature for enrolment.

2.74               Further discussion of these and related matters is to be found later in this report.