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Joint Standing Committee on Electoral Matters: Senate Voting Reform

Estimates & Committees
Lee Rhiannon 1 Mar 2016

Lee asks of Commissioner of the Australian Electoral Commision, Tom Rogers, how voting reform would be implemented, and what efforts will be taken to educate voters on the changes.


Senator RHIANNON: Thank you, Commissioner. When can you start working on the actual implementation of the bill? Is it when the legislation is passed, on assent or the day of commencement? Could you explain that please.

Mr Rogers: Certainly, Senator, you will not be surprised to know that we are doing risk and contingency planning right now-I would be abrogating my responsibility as the commissioner, if we were not doing some sort of risk and contingency planning now. However, we cannot start implementing until the bill becomes legislation. So we are doing as much risk and contingency planning as we can right now but, clearly, I cannot predict what parliament may or may not do, so it would be impossible for me to start implementing fully that process right now.

Senator RHIANNON: With regard to the three months, could you expand on that, because you have explained that you are already doing some work-I think that you link the time frame to resources available. Does that mean that, if there were more resources, you could get it done more quickly?

Mr Rogers: It is also a slightly vexed question, but there are some components where it is easier for us to truncate the time through the application of additional resources. There are many components that go to make up the estimate of the three months. Some of those things, yes, if we get more resources, they can be done more quickly. There are some elements that just take time, because there is a quality process involved-we have to make sure it is entirely accurate. Some of the work on recoding some of our systems just takes a period of time, and there is a point at which even more resources will not assist in shortening that time frame.

Senator RHIANNON: Could you outline-

Mr Rogers: Sorry, could I also be on record as saying that the three-month period is already a streamlined three-month period in any case.

Senator RHIANNON: So you are saying that it is already tight?

Mr Rogers: Yes.

Senator RHIANNON: I want to move onto education: I am aware that with each election you do considerable education of the electorate. Is this something you are already working on; and can you outline what your plans are for how you would take that forward?

Mr Rogers: It is difficult to outline exactly what our plans are until I see the final shape of the legislation that comes out of the process. As you have indicated, we are experienced in running national campaigns around electoral issues. We do that at every election in any case. We talk about formality and other information to provide electors with the information that they need to cast a formal vote. So I would suspect that any education that we will be running at this election, should this bill become legislation, will be along the lines that we have done previously. If I reflect back to the last major campaign we ran, it was probably the 2007 campaign-I think the rules had changed. I am not saying that it will mirror that campaign, but that is probably the last time we did a national campaign of that order. But, as you have pointed out, at every election, we reach out to electors in any case.

Senator RHIANNON: So would there be a requirement, considering the change that is involved-it is not just educating people to get them to vote; it is now educating them that there is a change-

Mr Rogers: About the change; absolutely.

Senator RHIANNON: Does that mean that additional resources are needed, it would need to be more extensive, using more platforms-is that where you are going?

Mr Rogers: Quite possibly, and we do not just do that ourselves by the way; we work with a number of commercial providers and experts in that field to determine what is the best way to have an impact at that point in time. We use multiple platforms, as you have pointed out, particularly with an education campaign.

Senator RHIANNON: Thank you.


Later on

Senator RHIANNON: Thank you, Chair. As you know, there is a requirement in the bill that people should number a minimum of one to six boxes. Should there be a penalty for anyone advocating to just vote 1 above the line?

Mr Rogers: That is absolutely not a matter for me, Senator. That is a matter for government.

Senator JACINTA COLLINS: We need the department.

Senator CONROY: We would need the department to help you there, Senator Rhiannon, but you voted not to have them.

Senator RHIANNON: Just in terms of understanding how that would work when people go to vote, that is not something you would give advice on?

Mr Rogers: On the ballot paper, under the proposed changes, there will be an instruction for people to complete six boxes above the line, and that will be very clear on the ballot paper. That will be advice that we are providing people through our education campaign-that they should number six boxes above the line to cast a formal vote. As you are aware from the legislation, if people do not do that there will be a savings provision that still renders a vote of No. 1 above the line formal.

Senator RHIANNON: When there was the Albert Langer case back in the 1990s, was advice given at that time? I understand the law was changed with regard to the instructions.

Mr Rogers: The Langer case is different from the current proposal. I might ask my chief legal officer to talk about that.

Mr Pirani: The Langer case principally dealt with the issue about whether there needs to be a consecutive sequence of numbers on a House of Representatives ballot paper. Since that time the act was amended to make it clear that it is a consecutive sequence of numbers that is required for a formal vote. There was at that time also section 329A which had a criminal offence. The JSCEM at that time recommended, on the AEC's advice, that that provision should be repealed because it was too difficult to administer.

Senator RHIANNON: So the AEC gave that advice at that time

Mr Pirani: And the JSCEM also included it in its report, which led to the amendments which changed the legislation for voting in the House of Representatives.

Senator RHIANNON: The advice that the AEC gave to JSCEM that JSCEM adopted at that time-should we be mindful of that advice with regard to the instructions and also enforcing any rules with regard to the required numbers above the line?

Mr Pirani: I think we are talking about two different issues here.

Senator RHIANNON: I totally appreciate they are two different issues.

Mr Pirani: The issue at the moment is whether, if a person were to say, 'Vote 1 for a Senate candidate,' that would be misleading an elector as to how they would be marking their ballot paper so as to lead to an informal vote being cast. The High Court has dealt with those sorts of comments in Evans v Crichton-Browne. The Federal Court more recently dealt with it in the case of Peebles v Honourable Tony Burke about the scope of section 329 of the Electoral Act, which is the relevant provision that applies where there is misleading and deceptive advertising about how an elector should mark their ballot paper. Again, I stress that the current bill says that the electors should be marking at least six squares above the line.

Senator RHIANNON: It is precisely on that point, and I appreciate that the two issues appear very different. However, there is a similarity, surely, in terms of misleading how one marks up the ballot paper. Was that not the case with Mr Langer? I think he spent 10 days in jail. I understand that was one of the reasons, or maybe the key reason, the advice was given that the law was not working in that form. My question is simply: isn't this something we need to be mindful of in deciding on these details?

Mr Rogers: Mr Pirani can correct me if I am legally incorrect here, but the Langer case is different from what has proposed, and I know that you have acknowledged that. The ballot paper will contain very clear instructions to voters to vote for six above the line to enable them to cast a valid vote. What we cannot do is mandate what all the parties may or may not say, but our advice and education campaign to voters would be to complete six boxes above the line. There will be notification in the polling place along those lines as well. However, if hypothetically someone did advise voters to vote 1 above the line, they would still be advising voters to vote formally.

CHAIR: Can I just make a point of clarification? I think that, during that exchange, a couple of times it was mentioned that the ballot papers will say to mark six above the line whereas the legislation provides for 'at least six'.

Mr Rogers: At least six, that is correct.

CHAIR: I think Mr Pirani did make that clear, but I just wanted to clarify that point.



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