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A Solution
July 12, 2000
Fair voting
HE
Australian Electoral Commission has made a public
declaration that it has never contemplated
publishing personal elector information on the
Internet. This clarification is welcome. As the
AEC points out, if it published details regarding
personal information it would be violating
provisions in the Electoral Act or the Privacy Act.
The AEC confirms, however, that it has recommended
to the bipartisan parliamentary Joint Standing
Committee on Electoral Matters that elector name and
address information be published on the Internet in
a secure form that is not downloadable. The
standing committee should accept this proposal. It
doe not require the publication of information that
is at present secure within the AEC.
The
AEC argues that since 1984 when the AEC was set up,
the standing committee has investigated all
allegations of electoral fraud and has not found
evidence of it being widespread and organised. The
AEC does, however, concede that at each election
“there are instances of multiple voting”. It claims
that these are “easily detected, and prosecuted as
necessary”. But this explanation glosses over the
difficulties of exposing frauds when they are
suspected. Individuals who uncover fraudulent names
on the roll, for instance, have to pay the AEC $2 to
examine each name. This is costly if hundred of
names are involved.
Dr
Amy McGrath, the president of H.S. Chapman Society,
in a paper called “The Case for at Ombudsman for
Parliamentary Elections”, claims that the AEC “has
no policy for the investigation of manipulation and
fraud”. She says that the Electoral Act does not
require the AEC to investigate irregularities: “AEC
policy is that it will pursue nothing but ‘hard
evidence’ of fraud or multiple voting through
optical scanning of the rolls”. She then makes the
point that the very secrecy of the secret ballot
makes it “almost impossible” for hard evidence to be
collected.
Dr
McGrath’s conclusion is that the AEC has created a
circular defence that may not reflect the reality of
electoral honesty or dishonesty. The AEC says that
the fraud it detects has not changed election
results, that there is no widespread electoral fraud
and these outcomes justify its low-key approach to
the matter. According to Dr McGrath, however, “the
only two tests run in recent times …seriously
contradict this view”. The case presented by the
H.S. Chapman Society is persuasive. The political
parties should set up an office of Electoral
Ombudsman to ensure accountability in the electoral
process.
The Case
for an Electoral Ombudsman
(In Commonwealth Ombudsman’s Office with special powers)
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 that official 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 2˝ 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, and 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
President, H.S. Chapman Society
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"That the electoral system is open to
manipulation is beyond question
... Fraudulent enrolment is almost impossible to prevent."
(NSW Electoral Commissioners, Messrs R.
Cundy and Ian Dickson, NSW Government
Inquiry 1989) |
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