Monday, 18 October 2021
Commonwealth Electoral Amendment (Integrity of Elections) Bill 2021; Second Reading
As a servant to the people of Queensland and Australia I present the Commonwealth Electoral Amendment (Integrity of Elections) Bill 2021, which amends the Commonwealth Electoral Act 1918. This bill provides for the routine auditing of the electronic component of Australian federal elections and for the provision of voter identification. It should be noted that this bill does not look backward to previous elections but, rather, forward to ensure confidence in the next election and future elections thereafter.
During COVID the actions of unelected bureaucrats and incompetent politicians have wiped out small businesses and jobs, disrupted lives and reduced many people to desperation. The next election will be a powder keg. It's essential, for that reason, to ensure that Australians can accept the result and move on. Suspicion of the outcome can be easily fuelled, especially on social media, and turned into violence by those who seek to manipulate the result for their own ends. The level of the trust in the result must be commensurate with the current heightened level of risk.
When I started researching election integrity, it was to show our elections are secure. That's not what I found. The Australian National Audit Office, the ANAO, conducted three audits of the 2013 federal election. Their report came out in 2016. This is what ANAO said about the Australian Electoral Commission, the AEC:
… the Joint Standing Committee on Electoral Matters (the Committee) wrote to the Auditor-General in February 2014 seeking a performance audit focusing on the adequacy of the Australian Electoral Commission's (AEC) implementation of recommendations arising from earlier Australian National Audit Office (ANAO) audit reports.
The Auditor-General decided to conduct three related performance audits. All three reports found that the Australian Electoral Commission had not adequately and effectively implemented the earlier Australian National Audit Office recommendations. The reports concluded that, in order to protect the integrity of Australia's electoral system and rebuild confidence in the Australian Electoral Commission, these recommendations should be implemented.
The report went on to say:
The ANAO plans to undertake a follow-up audit following the next federal election—
to examine the adequacy and effectiveness of the AEC's implementation of the ten recommendations made across the three ANAO follow-up audit reports.
Those recommendations included that the Australian Electoral Commission must:
Let me say that again: 'a fundamental overhaul' to ensure election integrity.
The follow-up audit to test how well the Australian Electoral Commission implemented this fundamental review into election integrity never occurred. Perhaps someone should do a bill to bring on that audit. Hang on, I did! Were the Australian National Audit Office happy about this direction? Apparently they were not. In their submission to this bill, the Australian National Audit Office said my bill was not necessary, as they had the power to audit the Australian Electoral Commission at any time. If that's the case, then they should just get on with it.
New South Wales and Western Australia have provisions in their electoral acts to audit state elections. New South Wales conducts an audit before its election to ensure systems are fit for purpose and then audits again after each election to ensure integrity and to see what can be improved for the next time. Western Australia audits after every election. There is no audit function currently specified in the Commonwealth Electoral Act 1918—none.
My bill creates a function for the Auditor-General to audit the operation of the Australian Electoral Commission twice in each election cycle—first, in the lead-up to the election, and then, immediately after the election, from polling day to the declaration of the poll.
The audit provided for in this bill covers electronic measures and tests the following:
… whether the use of authorised technology
(a) produces the same result as would be obtained without the use of authorised technology.
Put simply, this is asking the Auditor-General to ensure that the use of computerised voter rolls, tallying, preference allocations and related matters produces a result that accurately reflects the will of the people, including the tallying of preferences electronically. The Australian National Audit Office felt that that was too high a bar to meet. Can you believe that? I consider ensuring that the will of the people is accurately reflected in the result is a bare minimum for any election audit. This bill does not specify what will be audited. The decision regarding the operation of the audit is best left to the agencies conducting the audit.
Secondly, this bill authorises the Australian Signals Directorate to audit and monitor computer systems for unauthorised access internally and externally. This would target both unauthorised access from within the system and unauthorised external access by malicious entities. The Australian Signals Directorate is currently conducting a cyber-uplift program at the Australian Electoral Commission. While the program is most welcome, there is no basis in the Commonwealth Electoral Act 1918 or the Intelligence Services Act 2001 for that program.
My bill brings legislation into line with current practice. In May Senate estimates I asked the Australian Electoral Commission simple questions regarding their auditing. I was assured that audits are occurring. On no occasion then or since have the following fundamental questions been answered: Who conducted the audit? When was the audit conducted? What was audited? What was the result? Have any changes been made as a result of the audit?
It's disturbing that such an audit could happen behind closed doors, without direction or structure. It's more disturbing that this program has no legal basis in the Commonwealth Electoral Act. We should not have to rely on the admirable conscientiousness of the Australian Signals Directorate, who I applaud. We should be able to rely on the completeness of our legislation.
I looked at other issues around election integrity. First up was a simple question: at the Senate scanning centre, is the electronic data file containing each vote ever compared back to the paper ballot after the vote has been adjudicated? It was a simple question. The answer was 'no, never'. At no time is the electronic record of a vote checked back against the paper ballot once the ballot is electronically adjudicated. Some disputed votes are held back and adjudicated later in the accounting process, then filed away. There's no routine sampling beyond that point. That's not acceptable.
The third part of my bill relates to voter ID. Most of the recommendations in the Australian National Audit Office report that were never followed up went to failures in the integrity of voter rolls. It's too late to go back now and audit those rolls before the next election by way of recommencing residency checks, as the Australian National Audit Office recommended. It's not too late for a quick fix, which is voter ID. Asking for simple identification will act as an audit on the rolls in real time and ensure that every vote cast is legitimate. This is not my idea. Recommendation 21 of the Joint Standing Committee on Electoral Matters inquiry into the 2019 federal election called for voter identification to be introduced. The House of Representatives and the Senate called for the identification to be introduced. This same finding was made in 2016 and 2013—three times. Schedule 2 of my bill is drafted to give effect to the committee recommendations as literally as possible. Voters must present a form of acceptable identification to be issued with an ordinary prepoll or election day vote. Authorised identification must be suitably broad so as to not actively prevent electors from casting an ordinary ballot.
This bill allows a wide range of acceptable voter ID. The Australian Electoral Commission is empowered in this bill to make further regulations to ensure voters are not disenfranchised. We want fair elections. The Australian Electoral Commission noted in their submission to the Joint Standing Committee on Electoral Matters inquiry:
… multiple voting is frequently the subject of media commentary and social media speculation. Such a degree of focus is entirely understandable: there can hardly be a more emblematic component of trust in electoral results than ensuring eligible voters only exercise the franchise [appropriately].
Multiple voting is a red herring in this debate. My bill is not concerned with multiple voting; it is concerned with ensuring every vote cast was made according to the law. The Commonwealth Electoral Amendment (Integrity of Elections) Bill 2021 is about protecting confidence in our elections. The cyberintegrity of our election and the use of voter identification is essential to that confidence. I want to thank the finance and public administration committee for their inquiry and the secretariat for its work in compiling the submissions. We have learnt quite a few good points from that and we'll be amending this legislation.
I rise to speak on the Commonwealth Electoral Amendment (Integrity of Elections) Bill 2021. I indicate at the outset that Labor will not be supporting this bill. The bill seeks to do two things: it introduces a system of routine auditing of software used by the Australian Electoral Commission and it requires voters to present identification when they go to vote. I'll address the auditing provisions first. The bill requires the Auditor-General to conduct an audit of technology twice during an electoral cycle—at least seven days before the voting commences in a federal election and within 60 days after the return of the writs for a federal election. The bill also requires the Australian Signals Directorate to prevent and disrupt any interference with the cyberintegrity of federal elections.
This bill leaves one with the impression that our electoral system is dangerously exposed. But nothing could be further from the truth. The parliament should not give credence to baseless fears. For this parliament to do so would create a false impression that there is a problem, when there simply isn't. Irresponsible politicians in the United States have undermined their own institutions by promoting bizarre conspiracy theories about the conduct of elections. Australia's independent electoral system is the envy of Western democracies around the world. It will surprise no-one in this place to know that it was a Labor government, led by Prime Minister Bob Hawke, that established the independent Australian Electoral Commission. The Labor government did this in 1984, at the same time as it introduced transparent political donation systems requiring that political donations above the figure of $1,000 be disclosed. Madam Deputy President, as you would know, that's blown out to $14,500 under successive Liberal governments, and it's Labor policy to bring the threshold back to that $1,000, because we are the party of transparency. Labor will never allow the weakening of the AEC or the undermining of this process.
Ensuring the integrity of elections is at the AEC's core. That is why the commission already has robust systems in place. The bill requires involvement of the Australian Signals Directorate, but the AEC already works with the ASD and other cybersecurity agencies to ensure the integrity of our systems and its compliance with the Commonwealth cybersecurity guidelines. The Electoral Integrity Assurance Taskforce has also been established to protect our democracy from foreign interference, disinformation and electoral fraud. There have been multiple independent audits and tests of the AEC's counting and its distribution-of-preference software. These have found no issues with the integrity of the vote count. We also shouldn't forget the important safeguards to the system that ordinary scrutineers provide. Scrutineers can view and challenge the count—and, indeed, very frequently do—including the scanning of ballot papers and the processing of all digital ballot paper images. In a further effort for transparency, the seat-by-seat results of our elections are published on the AEC's virtual tally room. This allows anyone to view the results in every seat and verify those results.
This bill was referred to the Senate Finance and Public Administration Legislation Committee for inquiry and report. The bipartisan recommendation of that committee was that the bill not be passed. This was based on submissions received by the committee which identified several issues with the bill. The Australian National Audit Office, which had been tasked with conducting audits required by this bill, argued that the auditing function is best left to the AEC in support of its mandate. The ANAO submission noted that the ANAO already has the powers to audit the AEC's systems and processes. The ANAO also noted that, as an independent statutory authority, the AEC is oversighted by the parliament's Joint Standing Committee on Electoral Matters. The JSCEM has the power to inquire into all aspects of the AEC's operations and conduct of electoral events. Lastly, the High Court sitting as the Court of Disputed Returns can hear petitions disputing the validity of election results.
We deliberately have an independent and robust electoral system in Australia. We should pass legislation not based on unsubstantiated fear but, rather, based on fact. Senator Roberts is always talking about the facts, as I recall, so let's base our judgements here not on unsubstantiated fear but on the facts. Let's go through the facts. There's no issue with the integrity of the AEC, and we should support it to do its important job rather than seek to publicly undermine it.
The second major amendment the bill seeks to make is to introduce voter ID laws. Voter ID laws have been consistently opposed by the Australian Labor Party. We will never support them, for the simple reason that they undermine our compulsory voting system and discourage some people from exercising their democratic rights. It's a simple thing for us here to produce identification. We have it readily available. That's not the case for some more vulnerable members of our community. People living in remote Indigenous communities do not always have identification, and it's always problematic for homeless people and those escaping domestic violence. Voting is a fundamental right that comes with Australian citizenship. We cannot allow the erosion of that right by allowing people to be turned away from the polling places because they can't produce ID on that day. Wouldn't you agree, Senator McGrath?
Oh, okay. Why am I surprised!
In an attempt to address the situation in which people don't have ordinary forms of ID, the bill allows a voter to produce a community identity document. The bill empowers the Australian Electoral Commission to prescribe the form of such a document In her submission to the committee's inquiry, constitutional law expert Professor Anne Twomey, a very good professor, said that, even with this allowance, 'the additional procedural burden, the effort required, the confusion that it can create and the message that it sends of being "suspect" or unwanted may be enough to suppress the vote'. Professor Twomey points to the evidence in the United States, which shows that voter ID laws suppress the vote among ethnic minorities, producing a clear partisan distortion favouring conservative candidates. We don't want that in Australia. The Australian Human Rights Commission noted the low Indigenous enrolment rate of approximately 78 per cent. The AHRC said, 'It is vital to avoid steps that would impede the progress made to increase rates of Indigenous participation in our elections.'
Voter ID laws would place an unreasonable burden on the AEC. They would require more staff at polling booths and place them in the invidious position of policing ID and assessing its authenticity. This would significantly slow down in-person voting, which could also have the impact of disenfranchising voters.
All of that aside, multiple voting in Australia is simply not an issue. It barely happens, and certainly not in an organised, deliberate way. Most instances of multiple voting are of older or infirm people who have simply forgotten that they've already voted. In his submission to the committee's inquiry, Professor Graeme Orr said, 'Voter ID in Australia is a solution in search of a problem.' The Electoral Commission has described the number of multiple voters as 'vanishingly small'. The few instances of multiple voting that we have had never affected the outcome of an election. Given this, it is simply not worth the risk of disenfranchising thousands and thousands of Australians.
The bill's explanatory memorandum claims it is acting on a recommendation of the Joint Standing Committee on Electoral Matters following its inquiry into the 2019 federal election. Coalition members of JSCEM have consistently recommended voter ID laws, which Labor members have consistently opposed. Labor members of JSCEM wrote dissenting reports for the inquiries into the 2013, 2016 and 2019 elections, voicing their opposition to voter ID laws. So, while it is a recommendation of JSCEM, it's important to note that it was not a bipartisan recommendation—which, generally speaking, is the way in which that particular committee works, and for good reason.
The government recently had the opportunity to legislate to implement voter ID laws, but, knowing that those laws would never have the support of Labor, instead chose to create a designated elector register. Voters against whom the Electoral Commission has a reasonable suspicion of voting more than once in an election will be placed on the designated elector register. Designated electors are only able to vote by declaration vote, ensuring that only one vote is counted. This will address any instances of multiple voting, and, as such, the introduction of a voter ID law is entirely unnecessary. In addition, the AEC is rolling out more and more electronic certified lists, against which voters' names are marked when they attend the polling place. At Senate estimates in March this year, the Electoral Commissioner talked about the impact that electronic certified lists are having on the very few instances of multiple voting:
The use of electronic certified lists will certainly aid in eliminating the incidents of multiple marks and mistakes at the point of voting. That is certainly the case as we deploy more and more ECLs, as we call them. That will have a significant impact on that issue.
So Labor will not be supporting this bill. In closing, I'd like to thank the Finance and Public Administration Legislation Committee for their work on the inquiry into this bill, especially Senators Kitching and Watt and, in particular, the deputy chair, Senator Tim Ayres. Your thoughtful consideration of these issues is appreciated.
Senator Roberts, I strongly agree with you, in particular, in relation to the requirement for voter ID, a recommendation that the JSCEM made after the 2013, 2016 and 2019 elections. Indeed, as chair of the committee after the 2016 and 2019 elections, I personally made sure that that recommendation was there. We do need voter ID in Australia. Most Australians find it slightly bizarre that to get into a surf club or bowls club they are required to show ID but in order to exercise that most important civic duty of voting no ID is required. I, like many people in this chamber, spend a lot of time at polling booths. A number of people come to them and say: 'I don't have my ID on me. I will go back home and get it.' When you tell them they don't need ID, they're surprised and shocked that they don't need ID to vote.
We do need to make sure that our voting system and our democracy is not only transparent but seen to be transparent. That is the importance of voter ID. Voter ID allows all participants, all voters, all those who are members of political parties, to know that each vote that is exercised is treated exactly the same as every other vote that is exercised and that we do not see situations similar to what happened in the federal seat of Herbert in the 2016 election where there were over 200 cases of multiple voting and yet the seat was decided by fewer than 40 votes. So Senator Farrell is incorrect in that regard.
The question that must always be put to those in this chamber is: why are you so concerned about extra transparency for our electoral system? What are you trying to hide? Surely there is no issue with people having ID? The committee has been almost lenient in terms of the ID that would be required. We're not necessarily talking about photo ID. We've gone as far as saying a Medicare card would be sufficient. But also, if you don't have ID on you because you're homeless or because of some other situation, you could be issued with a declaration vote. So no-one would actually ever be stopped from voting because of the requirement of voter ID. Indeed, we do need to make sure that all those who are eligible to vote in Australia do show ID, but, if they don't have it on them, we're not going to stop people from voting. They will be issued with a declaration vote. That's a vote that will ensure that their say in the future of Australia is ensured. That is so important.
So, Senator Roberts, I commend you for bringing forward this bill. I commend you, in particular, for the provisions of voter ID. I also believe that the JSCEM report that came down some months ago had many provisions in it in relation to ensuring the protection of Australia's democracy. That is something we need to ensure happens after every election.
I also personally would like to see the introduction of optional preferential voting in Australia to make sure that voters have the ultimate power to decide where their votes go and, if they wish to just vote 1 for the Liberal-National Party in Queensland, the Greens or One Nation, they can. It gives choice and power to the voter. It does not compel the voter to vote for parties that they do not wish to support. So I hope that we do see optional preferential voting come into Australia. Senator Waters, I will give way to you in the few moments we have left. Senator Roberts, I commend you. Well done.
I rise to speak ever so briefly on the Commonwealth Electoral Amendment (Integrity of Elections) Bill. The Greens won't be supporting this bill. In the 20 seconds that I have available—thank you to the other senators for allowing me that!—I want to note some things that really do need attention if we are to achieve improvement in the integrity of election campaigns: banning political donations from dirty industries seeking influence, and capping all other donations to $1,000; capping election spending to avoid elections being won by the parties with the deepest pockets; strengthening the rules about government advertising so the government can't use public funds in the lead—