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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