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Tuesday, 20 March 2012
Page: 3540


Mrs BRONWYN BISHOP (Mackellar) (17:31): The Electoral and Referendum Amendment (Maintaining Address) Bill 2011 and cognate bill both have misleading titles. The main bill, the maintaining address bill, should in fact be called the 'changing address bill'. The Minister for the Public Service and Integrity, in introducing that bill, said in his second reading speech that it would not cause automatic enrolment, and discussion at that stage was, 'We are only going to change addresses; we are not going to go to automatic enrolment.' However, shortly thereafter, we received the second bill, the Electoral and Referendum Amendment (Protecting Elector Participation) Bill, which in fact should read 'electoral amendment (automatic enrolment) bill', because that is precisely what it does. It takes people off lists which are compiled for another purpose and data matches and decides that, if someone who has a particular address is not on the roll, they will automatically be placed on the roll. This follows in the footsteps of the dying days of the New South Wales parliament and the Victorian parliament, when both thought they would get an electoral advantage from doing this, and the Commonwealth is following for the same reasons.

This is one of a series of bills that have been designed to give Labor and the Greens an electoral advantage. When we were in office we had removed prisoners from eligibility to vote, but the Labor Party changed it so that, unless prisoners had a sentence of more than two years, they would be allowed to vote. This of course disclosed that there are really bad criminals serving two years who are allowed to vote, and perhaps the Labor Party rightly made the conclusion that those sorts of people would vote Labor rather than Liberal and it would give them an electoral advantage.

In all the inquiries of the Joint Standing Committee on Electoral Matters, when we have asked questions and tried to find any evidence that this would be really beneficial, all we have found is that this has been a proposal of the Labor Party and the Greens, who have been in lock-step. Unfortunately, the AEC has been in lock-step in suggesting it would be an advantage as well.

I think it is important that we look at other people's writings on the nature of electoral law in this country to find a way in which we should progress these matters. Professor Orr in his excellent book The Law of Politics writes: 'The roll is essential to the franchise. Without it the franchise as a mass electorate would be very hard to police. It also serves in practice to limit the franchise.' As Acting Chief Justice Brennan put in Muldowney and the Australian Electoral Commission, the electoral roll is pivotal to the electoral system. He held that the qualifications to vote include enrolment, noting that the term 'elector' is defined to mean someone on the roll and that mandating an administrative hurdle like enrolment created no undue hardship.

The Electoral Act does put an onus and a responsibility onto the individual. Once they become a citizen and are 18 years of age they must enrol. It is compulsory. In fact, last night the Electoral Commission held a function to celebrate 100 years of compulsory enrolment. It also was celebrating 50 years of Indigenous Australians being included on the roll. That indeed is a celebration. I pointed out in my speech last night that I was very proud to be a member of the Liberal Party, the party of which the first Aboriginal Senator, Senator Neville Bonner, was a member, and the party of which the first person of Aboriginal heritage in this House, Mr Ken Wyatt, is also a member. I could point out that the government could have had the opportunity of having a senator of Aboriginal descent, Mr Mundine, who would have been a grace to the Senate, but of course he was overlooked in favour of Mr Carr, the failed former Premier of New South Wales.

In looking at that celebration last night, it was interesting that all the material that was an display was about encouraging people to meet with their obligations to enrol and to change their address when they move, because that is the law. Currently, until this bill is passed, the law is that the responsibility is the obligation of the person who has attained the age of 18 and is a citizen of this country. As Acting Chief Justice Brennan pointed out in his decision, it is not an onerous one. But there are provisions in the act which say that, if you do not enrol or notify the AEC of your changed address, there is a fine, which is applicable; it is strict liability. There are no fines paid because the AEC does not enforce the law in this regard. In fact, when you look at the letters that the AEC write to people whom they believe through their data-checking may not be at that address, the AEC simply say: 'Remember you are eligible. It is the legal requirement to enrol and failure to do so may result in a fine.' Of course, it never does. Under the law it should say, 'You will be subject to being fined' and those fines should be collected—but no. This legislation removes that obligation from the Electoral Commission. Under this legislation, the commissioner is no longer required to fine people once they have been automatically enrolled or had their address changed by the AEC.

If you go to the second reading speech of the Special Minister of State, it is full of statements which are simply not borne out by the facts. He says in his second reading speech:

… there are one and a half million Australian citizens who cannot choose their representatives in parliament.

Well, yes they can. All they have to do is comply with the law and enrol or notify the AEC of any change of address. Their ability to vote is entirely within their hands. They have the interim period between the last election and the one that follows—that entire period. Indeed, under legislation brought in by this government, this includes the period of time from when the writs are issued; it has been lengthened. So people can enrol almost up to the last minute.

The minister says in his speech:

This bill will protect the participation of eligible Australian citizens in the electoral process by establishing a safety net for enrolment and voting.

No, it will not. It will automatically add names to the roll without people's authority or consent. The minister goes on to say:

This amendment will not affect the integrity of the electoral roll …

No, it will not. It will in fact reduce the integrity of the roll. This is where a philosophical divide exists between the coalition, and the Labor Party and the Greens. We say that the first and foremost obligation of the Electoral Commissioner is to uphold the integrity of the roll—that is, to make it as free from error and fraud as can possibly be done. The system that is being introduced will simply add names to the roll, without adequate checking and without the consent of the individual elector. It is the obligation of the elector to do it. The proposed system opens up the roll to fraud and to error. We were very obliged to Dr Clarke from the Privacy Foundation, who came before our committee, for giving us very useful evidence about the way in which data processing is utilised, how it is subject to false positives and false negatives and how it is not to be relied upon as being safe to use at all.

But to go back to the speech of the Special Minister of State, he said:

The bill will ensure the accuracy and completeness of the roll …

No, it will not. It will leave it open to more errors and to the possibility of fraud. During evidence given by Mr Killesteyn, I asked him whether, if a particular set of circumstances were a reality, someone could be struck from the roll improperly. I asked him this question: 'Supposing we had Mrs Bloggs, who in fact had not moved from her address. She is one of those people who have a second house. Her principal place of residence is X but on the list that you have obtained'—that is, Mr Killesteyn—'her address is shown as Y and she is not going to get your letter.' Mr Killesteyn gave evidence that he only writes to the new address and not to the old. 'She is not going to reply to you in 28 days and you are going to change her address. She is going to rock up on election day and be told she is not on the roll because her other address is in a different electorate. She has no right to be on the roll in the different electorate but someone who perhaps knew that it had been changed could rock up in her name and it could be a marginal seat and someone could vote in her name. She would be denied her vote and a fraudulent vote would be counted in a marginal electorate. How are you going to overcome that difficulty?'

Mr Killesteyn replied:

Going back to the original proposition, everything you said about the address change is true. But one would wonder why that individual would have changed the address either with Centrelink, Australia Post or the Roads and Traffic Authority—

The fact of the matter is that, under this legislation, the Electoral Commission is given the absolute right to choose any list they like to data-match, to change addresses and to enrol people who are not presently enrolled. Mr Killesteyn said that he currently uses only the RTA or the equivalent thereof from various states, Australia Post and Centrelink. Centrelink, I think it is sensible to realise, is the collection database of 100 agencies. So there are an enormous number of scrubbed databases already fed into the one that the Electoral Commissioner uses. The question as to why anyone would do that really does not answer the question. Mr Killesteyn said that everything I said was correct, and it can and no doubt will be done at some stage.

But now we go to the evidence about what transpired in New South Wales and Victoria. It is important here to again go to the second reading speech of the minister. It says:

This notice will advise the recipient that they have 28 days to inform the Electoral Commissioner that they do not live at that address or are not entitled to enrolment.

Of course, we have established that the Electoral Commissioner only writes to the new address. That is the one he has gained from the databases. He does not, as he has specifically told us, write to the old address. Very simply, we will have people who can be wrongly enrolled. Further in his speech the minister says:

This is similar to the successful processes currently used in New South Wales and Victoria.

Let us look at the success rate. In New South Wales around 92 per cent of people are on the good old-fashioned roll, the one that is properly compiled by people who actually sign an enrolment form and lodge it with the Electoral Commission. All of that will be going, as a necessity. People can still do it, but it will not be essential to get on the roll. Of the people who were automatically enrolled, only 64 per cent of them voted. Of those on the properly established roll, 92 per cent voted. Of the 64 per cent who voted on the new automatic enrolment, the commissioner now writes to them and says that he has been advised that they have been placed on the roll in either New South Wales or Victoria but that that does not put them on the roll for federal elections and would they please fill out the relevant forms and send them back, or if it is to be an online change of address do it there. Their success rate from that letter is 20 per cent. That is an 80 per cent failure rate. In the minister's words, 'This is similar to the successful processes currently used in New South Wales and Victoria.' If that is a success rate, then we can do without it federally, thank you very much.

We go on to the question of reliable sources. The minister says:

Information from reliable sources is already used by the Australian Electoral Commission to monitor the accuracy of the roll and to remove a person from the roll through objection action.

Under this legislation the objection process goes. So there will be no cleansing of the roll for people who are wrongly placed in that address. There will merely be the affirmative action process of people being put on the roll because of another collection of data on another list not compiled for this purpose and their address changed similarly. The minister says that this is not an automatic process. Yet, when the Electoral Commissioner writes to these people he says that they have been automatically enrolled by, what he calls, successful New South Wales and Victorian processes. Clearly, it is an automatic process.

The minister in charge of the bill further states in his speech:

The existing law provides that where electors have been removed from the electoral roll due to an administrative error or a mistake of fact, their votes can be admitted to further scrutiny after the Electoral Commission has verified the elector's enrolment and voting entitlement.

However, being removed from the roll through objection action does not currently constitute an administrative error or mistake of fact.

Therefore, there is provision for checking and provision for declaratory votes.

The very useful book, which I quoted from before, TheLaw of Politics by Professor Graeme Orr, draws our attention to the important fact that the roll is the final determinant of who is entitled to vote. He says: 'Like other official public registers, such as land registers, a chief feature of electoral rolls is their finality. The purpose of a roll is to be a definitive statement of the entitlement to vote'—leaving aside the potential for provisional declaration votes by those erroneously omitted from the roll—'Thus there is a rule that the roll is conclusive evidence of the entitlement to vote. Reinforcing this is the secondary rule in almost all jurisdictions that a court of disputed returns is not to inquire into the correctness of the roll.'

Again, I come back to this philosophical divide that on this side of the House we say that the integrity of the roll is the first responsibility to be pursued at all costs by the Electoral Commission whereas, on the other side of the House, the government says, 'No, just adding numbers is far more important.' That is a very important philosophical divide. But our contention is backed up by judicial findings. In the case of Perkins and Cusack, the federal Court of Disputed Returns faced a petition claiming that many people were on the roll for the seat of the Eden-Monaro, whose real place of living was outside the electorate. Imagine that! Even though it was alleged that some enrolled electors lived at addresses that lay outside the divisional boundaries, Mr Justice Starke refused to allow any evidence to be tendered that might contradict the face of the roll.

In the case of Re Berrill's Petition in 1975, a three-judge bench of the High Court sitting as the Court of Disputed Returns rejected the claim on jurisdictional grounds where Mrs Berrill had complained about the state of the electoral roll. The court rejected that claim on jurisdictional grounds, citing the prohibition of going behind the roll. Importantly, Mr Justice Stephen noted that this did not mean that errors in the roll were completely unreviewable. This is a very important finding. Rather, he noted that the prohibition assumes that errors on the roll ought to be put in order before an election rather than risking dislocation of the democratic process through illegal challenges to the roll during the campaign or after it. That is why we say the integrity of the roll has to be foremost and why we reject the proposition that the government puts forward that merely adding names to the list at any cost is the correct way to proceed. This is certainly backed up by that ruling by Mr Justice Stephen, because it is implicit in automatic enrolment and automatic changing of addresses that there will be errors brought into the roll that otherwise would not be there.

I go back to the points that were made by the minister in charge of the bill, the Special Minister of State. He said:

With the trend in declining enrolment participation, it is no longer possible to keep doing the same things in the same way, particularly as superior processes have been successfully implemented in New South Wales and Victoria.

The desperate measures put in place by the New South Wales Labor government and the Victorian Labor government did not save them from being defeated. The fact of the matter is that they introduced into their rolls errors which are the result of the process that this bill will bring in. There are two things to say about some of the technicalities associated with data-matching and the use of rolls created for another purpose. Firstly, on the government's own privacy website, at Privacy.gov.au/law/other/datamatch, it states:

Data-matching involves bringing together data from different sources and comparing it. Much of the data-matching done by agencies subject to the Privacy Act aims to identify people for further action or investigation. … Data-matching poses a particular threat to personal privacy because it involves analysing information about large numbers of people without prior cause for suspicion.

That is very important in the privacy aspects of the roll. There is provision in the current act for people to be exempted from being placed on the roll because they may be fearful of domestic violence or for a number of other reasons. There is provision for that and many people are indeed exempted. But, under this system, as the government itself warns, wearing another hat, there is the problem that people who would rightly be entitled to be not on the roll would be put automatically on the roll. That does not necessarily mean people who have already applied and are off the roll; it also means people who are yet to apply to not be on the roll, who would simply be automatically put on. That would apply particularly to young people, because they have not had the opportunity, prior to their turning 18, to be concerned about this issue.

So, on the one hand, the government warns, through its privacy website, that there are a great deal of problems in using data-matching because, in its words, 'it involves analysing information about large numbers of people without prior cause for suspicion,' and yet, on the other hand, the government brings in a bill which is going to overlook all of that because it thinks that there is a political advantage for it.

We are very obliged to Dr Roger Clarke, from the Privacy Foundation. I am very proud to say that I have worked with that foundation before, when I worked with many others to fight off the Labor Party's Australia Card, which was to be a national identity card and which we were successful in defeating.

Mr Garrett: We were indeed.

Mrs BRONWYN BISHOP: We were on the same side on that one. It was quite remarkable. That was before you got seduced, dare I say.

Dr Clarke said, in his evidence to us:

The point about data matching is that it is extraordinarily error-prone. It is based on, firstly, name; secondly, usually, elements of address and, thirdly, date of birth. Date of birth is commonly unreliable. People fib about their ages. Many people are not very pleased about having to disclose their ages, and that includes males as well as females. Address in this context cannot be used because the whole purpose of the study is to come up with different addresses and therefore you cannot match on it. So you have you got to reduce quality of data matching in this data-matching program compared to all the other data-matching programs that go on in government.

Name is enormously variable in its recording and is routinely 'scrubbed'—that is the term used—in order to try to muck around with the data, modify the data, in order to make it seem right. It is differently scrubbed by every different agency, so we have differential collection for different purposes in different ways with different data-quality measures with different data-scrubbing measures, and then we bundle all this together and match it. The false positives that arise from this are enormous, as indeed are the false negatives, because there are enormous numbers of occasions where matches could in principle be discovered which in fact are not discovered by the algorithms that are used. It is extraordinarily error prone. In circumstances like these you would think enormous care would be taken, enormous justification would have to be provided, proportionality would be taken account of and it would only be done when there are very serious benefits to be gained. Unfortunately that is far from the case.

In other words, Dr Clarke, who is skilled in the e-business industry, has pointed out to us the use of scrubbing, the way in which data is collected and modified to suit the purposes for which it is collected, and such data is now going to be bundled together and used by the Electoral Commissioner to change the electoral roll, the integrity of which is fundamental to running a proper democratic system.

I think we have to conclude, unfortunately, that the government and the Greens, who have been pushing this agenda for a considerable period of time because they feel it gives them an electoral advantage, are going to be able to force this legislation through the parliament. However, it will certainly be looked at should we be successful in being elected to government at the next election. At the last gasp, the failed Victorian and New South Wales governments tried this ploy to enhance their chances of re-election. I suspect the same outcome as befell them will befall the Gillard government and its aspirations to try and gain an electoral advantage from this. I would like to conclude by saying that I suspect the next piece of legislation in this train of manipulation of the electoral process will be to try to introduce the South Australian voting system whereby, if you do not complete your ballot paper, a bureaucrat will take it over for you if there has been a registered ticket. Watch this space. I fear that the evils that can be done to the electoral system are not yet finished.