Federal Register of Legislation - Australian Government

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A Bill for an Act to amend the Commonwealth Electoral Act 1918, and for related purposes
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 02 Sep 2021
Introduced Senate 01 Sep 2021

 

 

 

 

2019-2021

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

COMMONWEALTH ELECTORAL AMENDMENT (INTEGRITY OF ELECTIONS) BILL 2021

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by authority of Senator Roberts)

 


COMMONWEALTH ELECTORAL AMENDMENT (INTEGRITY OF ELECTIONS) BILL 2021

 

OUTLINE

 

A bill to amend the Commonwealth Electoral Act 1918 to provide for the routine auditing of the electronic component of Australian federal elections and the provision of voter identification. This bill does not cover referendums.

 

Schedule 1 - Auditing

 

An independent audit of the use of electronic measures in each Federal election will ensure improved confidence in the result. This is especially important in this next 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.

 

There is no audit function currently specified in the Commonwealth Electoral Act 1918. This bill creates a function for the Auditor-General to audit the operation of the Australian Electoral Commission (AEC) twice in each election cycle:

a)      in the lead up to the election; and

b)      from when polling opens to the declaration of the poll.

 

The audit provided for in this bill is restricted to electronic measures, and tests whether the use of authorised technology 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 and preference allocations produced a result that accurately reflects the will of the people expressed in that election.

 

Secondly, this bill authorises the Australian Signals Directorate to audit and monitor computer systems for unauthorised access internally and externally. This is targeting both unauthorised access from within the system and unauthorised external access by hackers or malicious entities.

 

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.

 

It should also be noted that this bill does not look backward to previous elections, but rather forward to ensure confidence in the next and subsequent elections.

 

Background

 

The Auditor-General, through the Australian National Audit Office, has conducted an audit of the 2016 Federal Election, which is the last known election audit for which details have been published. A copy of that audit is available online.

 

From ANAO’s website:

“ANAO’s purpose is to support accountability and transparency in the Australian Government sector through independent reporting to the Parliament, and thereby contribute to improved public sector performance.”

 

“Through the audit and related services provided to the Parliament by the Auditor-General and ANAO, the Australian public can have confidence that the Auditor-General is examining and reporting on the actions of Commonwealth entities and whether public resources are being used economically, efficiently, effectively and ethically.”

 

The Australian Signals Directorate is the Australian government agency responsible for foreign signals intelligence, support to military operations, cyber warfare, and information security.

 

The Australian Signals Directorate is currently conducting a cyber “uplift program” at the AEC. While the program is most welcome, there is no basis in the Commonwealth Electoral Act 1918 for that program. This bill brings legislation into line with current practice.

 

New South Wales conducts an audit prior to and following each State election. Western Australia conducts an audit following each State election. The Australian Capital Territory report into the 2020 territory election recommended an audit occur on each election as a matter of routine.

 

Schedule 2 – Voter Identification

 

Recommendation 21 of the Joint Standing Committee on Electoral Matters (JSCEM) called for voter identification to be introduced. This schedule is drafted so as to give effect to the committee recommendation as it relates to elections, but not referendums.

 

Recommendation 21 in part: “The Committee recommends that, as per its recommendation in the 2016 report, the Commonwealth Electoral Act 1918 and the Referendum (Machinery Provisions) Act 1984 be amended to require 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. […]”

 

This bill allows a wide range of acceptable voter ID.

 

The AEC noted in their submission to the JSCEM inquiry that: “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].”

 

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.


 

NOTES ON CLAUSES

Clause 1: Short Title

1.         Clause 1 is a formal provision specifying the short title of the Bill.

Clause 2: Commencement

2.           The whole of this Act will commence the day after the Act receives the Royal Assent.

Clause 3 – Schedules

3.         Each Act specified in a Schedule to this Act is amended or repealed as is set out in the applicable items in the Schedule. Any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Integrity of Federal Elections

Part 1 - Main amendments

Commonwealth Electoral Act 1918

Item 1 – After Part XIX

4.         This item inserts new Part XIXA—Use of technology.

286AA  Interpretation

5.         Inserts definitions not currently in the Act that are relied upon elsewhere in the bill.

·        authorised technology means any technology authorised or required by the Act to be used, such as those used in an election. This includes computer hardware and software and communication equipment.

·        cyber integrity 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.

286AB  Auditing of authorised technology at federal elections

6.         This section introduces a function for the Auditor-General to conduct audits of the use of authorised technology at federal elections and provide the results to the Electoral Commissioner:

·         at least 7 days before voting commences in each federal election; and

·         within 60 days after the return of the writs for each federal election.

7.         This section sets the guiding principle to be followed - the Auditor-General 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—whether it replicates the information that would be stored without the use of authorised technology.

8.         This section also allows the Auditor-General to make recommendations to the Electoral Commissioner in relation to reducing or eliminating any risks to authorised technology that could affect the security, accuracy or integrity of voting.

286AC – Auditing of authorised technology at commencement of this Bill

9.         The bill will relate to all future elections including the next election. However, 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.

 

286AD  Ensuring cyber integrity of federal elections

10.       This section provides authority for the Australian Signals Directorate to prevent and disrupt any interference with the cyber integrity of federal elections:

·         starting at the issue of writs for a federal election; and

·         ending at the return of writs for that federal election.

11.       The Australian Signals Directorate is already exercising functions in this area, and this provision makes it clear that those functions include ensuring the cyber integrity of federal elections.

Part 2 - Consequential amendments

Intelligence Services Act 2001

12.       For completeness, this section has been included to amend the Intelligence Services Act 2001 to confirm that the Australian Signals Directorate has functions under the Commonwealth Electoral Act 1918.


 

Schedule 2—Voter identification

Commonwealth Electoral Act 1918

Item 1 - Subsection 4(1)

13.       This item inserts definitions in the Act relied upon elsewhere in this bill:

·         community identity document means an identification document as specified in the new section 394A;

·         Indigenous person is defined in a way that is commensurate with definitions of this term in other legislation;

·         proof of identity document: lists the documents that can be used for identification. These are current driver’s license, Australia 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.

Items 2 to 4

14.       These items amend section 200DG 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.

Item 5 – Section 200DI

15.       This item repeals and replaces section 200DI. The new section 200DI provides the requirements for voting officers when deciding whether a person is eligible to vote by pre-poll ordinary vote.

Item 6 – Section 229

This item repeals and replaces section 229. The new section 229 provides the requirements for voting officers when deciding whether a person claiming to vote in an election is eligible to vote.

Item 7 – Paragraph 231(1)(a)

17.       This item repeals and substitutes paragraph 231(1)(a) to provide that a person is entitled to receive a ballot paper if the person’s claim to vote is not rejected under subsection 229(3) (as inserted by item 6).

Items 8 to 11

18.       These items amend section 235 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.

Item 12 – After section 394

Item 12 inserts a new section 394A, which provides that the Electoral Commissioner can make rules by legislative instrument regarding what documents are community identity documents.

The purpose is to enable the implementation of the part of recommendation 21 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.

The section enables the rules to provide for the meaning of terms including the key concepts of ‘disadvantaged’, ‘remote area’ and ‘employee of a local health or welfare service’.


 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Commonwealth Electoral Act (Integrity of Elections) Bill 2021

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

The Commonwealth Electoral Act (Integrity of Elections) Bill 2021 (the Bill) will amend the Commonwealth Electoral Act 1918 to ensure that general elections and elections for the House of Representatives and the Senate are subject to an independent audit, and to introduce voter identification requirements.

Human rights implications

This Bill engages the right to vote and to be elected at genuine periodic elections.

The International Covenant on Civil and Political Rights (ICCPR) was adopted and opened for signature, ratification and accession by General Assembly of the United Nations resolution 2200A (XXI) of 16 December 1966 and entered into force 23 March 1976.

Article 25 states, in part, every citizen has the right: “To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.”

By signing the Covenant ICCPR Australia is bound in these terms: “the Covenant requires Australia to adopt such legislative and other measures as may be necessary to ensure that citizens have an effective opportunity to enjoy the rights it protects.”

Schedule 1—Integrity of Federal Elections

Schedule 1 of the bill promotes this right. 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.

Schedule 2—Voter Identification

When voter identification rules were introduced for the 2015 Queensland state election, turnout was slightly higher than it had been in the previous election, and less than one percent of voters cast declaration votes for uncertain identity.

Voter identification 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.

Conclusion

This Bill is compatible with human rights because it does not limit, but rather improves the right to free and fair elections.

Senator Malcolm Roberts