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The
Case for an Electoral Ombudsman by Dr Amy McGrath OAM
The Australian Electoral Commission is unaccountable An independent ombudsman for parliamentary elections in Australia is an urgent necessity. Why? Because the Australian Electoral Commission (AEC) is not accountable to anyone but the Governor-General once he issues the writ which authorises it to hold an election or referendum. At other times its very independence, as an ‘independent’ statutory authority from 1984, means electoral management has become effectively unaccountable either to the Commonwealth Parliament or the responsible minister. It could be accountable in two ways. First if it policed itself which it rarely, if ever, does, second if others did by legal challenge which seldom happens because the law is heavily weighted against success. Difficulty of challenge in a court of disputed returns 1. Liability for costs Anyone rash enough to mount a challenge against an election result in a particular electorate in a court of disputed returns, not only faces a likely flagfall of $100,000 but also the liability for all the costs of the challenge if it fails, even the costs of the AEC itself. 2. Adversarial stance of AEC The risk of failure is enhanced by the fact that the AEC, which should remain neutral as amicus curiae (friend of the court), adopts a defensive role; as Alisdair Webster found when he disputed his defeat in the 1993 federal election for his seat of Macquarie in the High Court after an incumbency of 11 years. The AEC’s Assistant Commissioner Paul Dacey recently declared that there has been no case challenging a result since 1920 (in federal elections). To suggest this means, there is no "fraud", is nonsense given that the Commonwealth Electoral Act imposes such absurdly harsh conditions as to deter any challenge. 3. 40 day time limit for gathering evidence It allows just 40 days for a defeated candidate to accumulate the necessary evidence to dispute an election before a court of disputed returns. Marshall Cooke QC, as one who has analysed seven union elections in a 2½ year inquiry (1990-1992) for the Queensland Government, points out: "This does not allow sufficient time to investigate the facts, or analyse the voting statistics, to identify possible fraud. As a result only blatant irregularities, usually of a technical sort, will be detected in time (Address H.S.Chapman Society 13 Aug.1999)." 4. Difficulty of checking the roll Anyone attempting to investigate an election would need to check the electoral roll of voters, for any election is only as honest as the honesty of that roll. In a federal election, that means checking a roll of some 80,000 names, knowing that some 10,000 or more names of new enrolments, or re-enrolments, have been flooded on in the last week before it is closed. Why 10,000? Because some 500,000 new names have been added in that last week since the 1987 election when 750,000 were added. Given 149 electorates, an average would be some 10,000, but are they averaged? The rise in extra enrolments could be greater in marginal electorates, and may shift back to other electorates after an election. Has any study of this been done? One thing is certain that any check after an election is an impossible ‘ask’ of any supporters for a defeated candidate. Who wants to go doorknocking to see if people are living where they say they live right after an election? It has only been seriously done recently by a team, professionally organised by the Citizens Electoral Council, after the 1993 Dickson by-election. They found 4,000 dubious names on the roll for golf courses, vacant lots in caravan parks, people no longer living at addresses, multiple voters in small houses etc, more than four times as many as the number by which the disputed election of Michael Lavarch was won. 5. Time delay in emergence of evidence Problems after an election must be specified in 40 days to mount a challenge to a disputed election. But, as Marshall Cooke QC says, this is too restrictive. "In most cases, it is only some time after the election that discrepancies in the roll are detected. It is too late then to do anything about the election result. Complaints to the AEC fall on deaf ears. The whole thing is shrugged off as insignificant." (ibid) 6. Shortcomings in AEC roll-check before elections Sometimes dubious names on the roll are discovered before an election, as in the electorate of Gosford, where the local member found 4,000 names on the roll that should not have been there, and had to persist before a sceptical AEC agreed to check only to find him right. If they had remained, he may have lost the election. 7. Prohibition against checking the roll in a court of disputed returns. Sadly any enquiry, such as those cited, is futile as the accuracy of the electoral roll cannot be challenged in any court of disputed returns. This is ridiculous, given a level of inaccuracy as high as that exposed in the Dickson electorate. Given that roll-padding, or roll-stuffing as some call it, is notoriously one of the chief ploys by those bent on corrupting an election, it is outrageous that the law specifically prohibits calling any evidence that it occurs, and that no one has sought to have it changed. Role of the Australian Electoral Commission (AEC) in policing its system 1. It can question its own roll at any time except during an election You and I may not be able to question the electoral roll but the Australian Electoral Commission can, and its Divisional Returning Officers (DROs) do so as an ongoing process until an election looms. They constantly remove names by objection until an election looms, when they become too busy hiring and training people to run the numerous polling booths in their electorate to continue. The roll is closed, nothing is checked, and even if a candidate found dozens of shonky enrolments in the days that followed he or she cannot object and have them removed. What a marvellous gateway this is to anyone, minded to enrol phantom names for real or false addresses, so long as there is no identification on enrolment. 2. It has all the resources to investigate election results after elections There are no restrictions on the AEC investigating the actual validity of the voter or the process conducted by the DROs. If it wished to do so, it has all the necessary resources. It holds all the ballot papers in store for six months (it used to be longer), all the marked up rolls, all the statistics. But it never does. Why not? Because it persistently claims fraud is so slight as to be of no account. But the only tests ever run in recent times, neither on its own initiative, seriously contradict this view. 3. A 1988 audit of six electorates proved the need for policing results In one instance, two experienced DROs were assigned to make a detailed examination in 1988 of six non-marginal electorates when it could not supply Senator Short with statistics on the 1987 election. They found irregularities sufficient to have changed the result in all of them. Surely one would suppose this finding would lead the AEC to run checks regularly. No way. 4. The AEC is only obliged to investigate irregularities under the Commonwealth Industrial Act The Commonwealth Electoral Act does not require the AEC to investigate irregularities in parliamentary elections. But as there is a specific requirement in the Industrial Act, it occasionally does in union elections. One outstanding instance was in the case of the 1985 election in the Queensland branch of the Liquor and Hospitality Trades Union which one of the AEC’s own returning officers for industrial elections in Queensland, John Curtis, halted after he found ballot papers being collected from hotels and bars, and filled in en masse by sitting union officials for their own benefit. John Curtis’s team questioned 90% of the individual voters to establish whether the signatures on the votes were theirs, which in many cases they were not. One would suppose John Curtis would receive strong support and acclaim from his superiors. Quite the reverse. They did their best to frustrate his efforts. 5. Limitations of AEC investigation of irregularities Unfortunately the Electoral Act does not require the AEC to investigate irregularities in parliamentary elections. AEC policy is that it will pursue nothing but ‘hard evidence’ of fraud and multiple voting (through optical scanning of the rolls). "Hard evidence?" Ask any lawyer what that means. Catching the criminal red-handed in the act. But the very secrecy of the secret ballot makes this almost impossible. Multiple voting? The AEC can only identify multiple voting in the same name, not different or phantom names. 6. Limitations of audit of the AEC The AEC may claim it is audited by the National Audit Office. But it is not audited on whether recent initiatives in key procedures in management and running elections are breaching, or diverging from, key principles of the Commonwealth Electoral and Referendum Acts, built on the need for transparency, simplicity and security. Many of these initiatives are made without reference to Parliament. Over time they may add up to a major change of principle. Let me exemplify. Section 90 of the Electoral Act reads ‘all proceedings shall be open to scrutineers’. In theory this could mean all proceedings from printing of the ballot papers to the final storage of the counted votes. In fact only proceedings in the polling booths and counting centres are open to scrutineers. But not even pre-polling booths at least in my region are, or DRO’s offices on polling night when they enter vote tallies from polling booths for the national tally room. Let alone, the printing, holding or transit of ballot papers, or electronic operations either of outsourced unknown companies or the AEC itself. 7. The AEC has no policy for investigating manipulation of, and fraud in, elections The truth is that the AEC has no policy for investigation of manipulation and fraud. It has no manual to tell its own DRO’s officers how to investigate fraud although it has manuals on virtually everything else. Moreover, if I asked DRO’s, prepared to give an honest answer, if they knew if fraud existed, they would probably admit they didn’t know and would be highly unlikely to be able to identify it if people were intent on committing it. Indeed the AEC itself admitted this in a report to the Joint Standing Committee on Electoral Matters after the 1993 election in that it knew of ten ways of committing fraud, but could identify only one. 8. The AEC alone holds all evidence necessary for investigations Some people believe the AEC does hold evidence of fraud in every election but the manner in which the evidence is interpreted and presented is part of the problem. For example in the case of multiple voting, the question to be asked is how many electors are recorded on Line C6 (d) for the whole of Australia. The figures might be rather different from those routinely published. The AEC accepts a multiple voter’s answer (in the same name) on face value if that voter says he or she did not vote twice. As to any prosecution, the Federal Police give it a low priority. 9. The negative role of the AEC in policing elections The AEC does not police its own elections. Rather, it seeks to persuade the Commonwealth Parliament no policing is needed on the grounds that "there is no fraud", "little fraud", "no significant fraud" or "no fraud that will overturn an election." This view, that honesty prevails in elections, makes it harder to achieve safeguards in the Commonwealth Parliament, and thereby easier to be dishonest. Necessity for an electoral ombudsman 1. Role of an electoral ombudsman Clearly if the AEC will not police itself on its own conduct of elections, an independent ‘policeman’ is necessary. This should be an electoral ombudsman to do so on behalf of the voters, party workers and officials, or candidates who have nowhere to go with their many ‘grassroots’ complaints during elections. In my experience, these, if aggregated, amount to a very disturbing level of concern about the integrity of the process in certain electorates or in toto. Such an ombudsman would lift the responsibility from those citizens who detect serious deficiencies in the AEC’s administration but are reluctant to go public with their concerns to the Parliament or the AEC itself knowing, if they do so, they will face a hostile reception and inadequate replies from the AEC and possible threats character assassination and intimidation from elsewhere. 2. Evidence of corrupt voting culture in report on Richmond Council election 1982 To those many doubting Thomases who accept the assurances the AEC that ‘all is best in the best of possible worlds’ of democracy, I refer the article of Dr Grabowsky, research director of the Australian Institute of Criminology, ‘Machine politics, corruption and the Richmond City Council (Wayward Governance 1989) with a scathing exposure of its corrupt voting culture, exhibiting a blatant array of ballot-rigging tricks exposed in the 1982 inquiry into the Richmond Council in Melbourne. I ask them can they really believe this culture is really limited to Richmond Council. 3. Evidence of contentious management changes in November 6, 1999 referendum To those doubting Thomases I also say "take a hard look" at the AEC’s conduct of the November 6, 1999 referendum.’ The AEC allowed postal and pre-poll votes 10 days before the issue of the writs by the Governor-General, and three weeks before the close of the roll. It allowed voting results to be posted on the Internet before voting closed in two eastern states. It published approval of 15 alternative ways of admitting formal votes, other than the mandatory Yes/No prescribed in the Referendum Act in the Scrutineers Handbook published on the Internet four weeks before the referendum including ticks and crosses, and No votes by either method crossed out with Yes and a tick substituted - the basis being an Attorney-General’s advice of 1961 on the separate Electoral Act as to the discretion of the returning officer on the then handful of votes. It centralised the issue of postal ballot papers by computer with an outsourced Queensland firm without authorisation by DRO’s for use of this "other means" or of a facsimile of their initials to be inscribed thereon. 4. Failings of present mechanisms of complaint Where does John Doe go to complain about such matters at present? To the Joint Standing Committee on Electoral Matters or the responsible minister. But what does he find when he appears before them? No continuity whatsoever. Members of the Committee constantly changing, most not attending every meeting. Ministers and their staffers also constantly changing. What John Doe needs is continuity in the person of an Ombudsman to represent the public vs the AEC and to remind the Australian Electoral Commissioner, with his dictatorial powers by virtue of Section 32, that he is the servant of democracy and not its master. As a servant, he is obliged to ensure honest, security and transparency as his guiding principles to guarantee us that our voting processes are not distorted. (Dr) Amy McGrath OAM
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