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Joint Standing Committee on Electoral Matters - 16/07/2012

BEVAN, Ms Ngila, Advocacy Projects Manager, People With Disability Australia

COSTAR, Professor Brian, Coordinator, Democratic Audit of Australia

KILLESTEYN, Mr Ed, Electoral Commissioner, Australian Electoral Commission

NEILSON, Ms Marie, Assistant Commissioner, Elections Branch, Australian Electoral Commission

PIRANI, Mr Paul, Chief Legal Officer, Australian Electoral Commission

ROGERS, Mr Tom, Deputy Commissioner, Australian Electoral Commission

Evidence from Ms Bevan and Professor Costar was taken via teleconference—

Committee met at 10:11.

CHAIR ( Mr Melham ): I declare open this public hearing of the Joint Standing Committee on Electoral Matters inquiry into the Electoral and Referendum Amendment (Improving Electoral Procedure) Bill 2012. The explanatory memorandum indicates that the bill implements recommendations 12, 31 and 32 of the committee's report on the conduct of the 2010 federal election. This involves automating the issuing of postal voting packages and increasing the nomination deposits for candidates for the Senate and House of Reps. The bill also includes other amendments to the Commonwealth Electoral Act and Referendum (Machinery Provisions) Act which are aimed at improving the interactions that Australians have with elections and referendums.

The evidence given today will be recorded by Hansard and be covered by parliamentary privilege. I welcome to today's roundtable the representatives from the Australian Electoral Commission, who are appearing in person, and representatives from the Democratic Audit of Australia and People With Disability Australia, who are appearing by teleconference. As you all know, these are legal proceedings of the parliament. Just bear that in mind. I thank you for appearing today. Firstly, I will ask the commission: do you have any opening remarks?

Mr Killesteyn : No, we do not.

CHAIR: Professor Costar, is there anything that you wish to add in relation to your submission? In particular, I was interested in the definitional matter that you raised.

Prof. Costar : No, I do not have anything to raise at this stage. I am sure they will come up in our discussion. I just wanted to confirm that we are operating under roundtable provisions. Is that right?

CHAIR: We are. In other words, everyone is at the table and you are most welcome to ask any questions of the commission and vice versa to test their opinions or flesh things out. We thought this was a better way of dealing with this bill. Ms Bevan, is there anything that you want to say to add to your submission?

Ms Bevan : No. I realise that what I have put in the submission may be outside of and a lot wider than what you are discussing today. I wanted to put it on the record.

CHAIR: There is nothing wrong with having it on the record. At the end of the day, we will only report in terms of the bill and not the wider implications. Is there anything else that you want to flesh out or point out to us?

Ms Bevan : No.

Senator RHIANNON: I would like to start off with the AEC and the issue of postal votes. Do you hold the view that some voters mistakenly believe that the material they receive from parties or candidates about postal vote applications is official AEC material? Do you find that confusion at any stage in this process?

Mr Killesteyn : There are two broad areas of complaint that we receive through our call centre about postal vote applications. The majority of the complaints are generally about delays in getting the postal vote certificates. Often that is because of a misunderstanding about the ability of the AEC to issue the postal vote certificates prior to nominations closing and the candidates being confirmed. Often people apply for postal vote certificates almost on the day that the election is announced and we cannot send out the postal vote certificates prior to nominations closing.

The other issue of complaint is that postal vote applications are sent back through political parties rather than directly to the AEC. This is not so much confusion, I would suspect; this is people concerned about the process and about the fact that their ballot is potentially being sent back through the political parties.

Senator RHIANNON: Do you mean that they are concerned about the integrity of the process?

Mr Killesteyn : We have not done any official research into it. As I said, this is primarily based on complaints that come to our call centre. They are concerned firstly that it goes back through political parties and that some political advertising is contained within the postal vote application.

Senator RHIANNON: I have some more questions for the AEC, but I notice that the Democratic Audit of Australia pointed this out, so I would be interested in any comments from them.

CHAIR: I want to clarify that the contents of this bill do not go as far as recommendations by the Joint Standing Committee on Electoral Matters. I do not want people to be under a misapprehension.

Mr Killesteyn : To clarity, that is a matter that is still with government. The government has not signalled its intentions. This is primarily an amendment that is designed to reflect the fact that the application for postal vote information system is now highly centralised while the act reflects a postal vote processing system which was designed 100 years ago. All we are trying to do here is get an act that reflects the practice.

Senator RHIANNON: Going back to the comment about recommendations 13 and 14, they are not being covered in the bill yet.

Mr Killesteyn : That is correct.

Senator RHIANNON: We have this opportunity to talk about postal votes, so I would like to hear what the Democratic Audit of Australia says about that at this stage.

Prof. Costar : You will notice that our submission has gone further than what the bill contains as well. We support the proposition that postal vote applications should be returned to the AEC and not routed through political parties by using phrases like 'electoral officer' or 'returning officer' with a PO box on it that is a PO box controlled by a political party. We go further and say that the political parties should play no role in the harvesting of postal vote applications at all. But that is for another day.

CHAIR: It is for another day.

Prof. Costar : I have noticed from reading various reviews of elections, particularly by JSCEM but also by the electoral matters committee in New South Wales and Victoria, that they are also getting on their complaints lines comments from electors who feel as though they have somehow been duped and into thinking that all this material is official AEC material when in fact is not. The report of the Victorian Electoral Commission to parliament on the 2006 election says that similar complaints were made.

CHAIR: I will just slow you there, Professor Costar. I hear what you are saying. Mrs Bishop raises an objection that I tend to agree with. These are issues that we canvassed. I want to be consistent, because I am doing this in another inquiry as well. We need to stick to the terms of reference. Here we need to stick to the bill. What I am interested in is fleshing out the confusion as to what the bill achieves. Mrs Bishop's objection is that those other matters are not before us in this bill. They are recommendations that have not yet been picked up by the committee. She is objecting to evidence being given along those extra lines. I think that that is reasonable, but for one thing: I want to make sure that what she says is a confusion in the bill is clarified. Is that in or out? What does the bill achieve? We need to restrict ourselves to that. That is the objection that Mrs Bishop has raised.

Prof. Costar : That is fine by me.

Mrs BRONWYN BISHOP: To add to that, the specific reference from the selection committee was that the bill and the explanatory memorandum are particularly ambiguous when it comes to what specific changes are being made to the process of postal vote applications. The reference said, 'It is necessary for the committee to investigate the full impact that these changes will have on current practices.' That is precisely what we are to include.

CHAIR: We might be having an argument or disagreement this afternoon, but I want to be consistent here. I want us to reflect on that. I am interested in that evidence if it confirms that that change is not in the bill.

Mr Killesteyn : I can say that this bill will not have any impact on the way in which political parties currently issue postal vote applications.

Mrs BRONWYN BISHOP: That is yet to be determined.

CHAIR: If there is an issue there, I would not mind clarifying that now, as that is what I want to flesh out.

Mrs BRONWYN BISHOP: This bill, despite its ambiguity and particularly despite the ambiguity of its explanatory memorandum, gives primary responsibility for postal votes to the Australian Electoral Commission. What does primary responsibility mean? Where is it in the bill and who interprets that?

Mr Killesteyn : The Australian Electoral Commission has always had primary responsibility for issuing the postal vote certificates. The applications are made to the Australian Electoral Commission

Mrs BRONWYN BISHOP: It is the applications that I am talking about.

Mr Killesteyn : The applications are made initially, under the current provisions, the divisional returning officer. This bill simply substitutes the Australian Electoral Commissioner for the divisional returning officer. The Electoral Commissioner then delegates that power to a range of officers to allow the postal vote applications to be processed and the postal vote certificates to be issued. It does not contemplate and nor does it seek to change the way in which political parties send out postal vote applications to whoever they see fit, along with whatever political advertising they wish. There is no attempt in this bill to change that at all.

Mrs BRONWYN BISHOP: With respect, Mr Electoral Commissioner, I do not believe that to be the case. The bill gives you a discretion as to how postal vote applications are sent out. That is the ambiguity about this bill. If it is to be certain—

CHAIR: Do you have the particular section where that is? I am interested in that.

Mrs BRONWYN BISHOP: It gives the primary responsibility to the Electoral Commission.

CHAIR: How does that differ from the current wording in the act? Mr Pirani, can you help us there? This is worth exploring, as I do not want there to be confusion.

Mr Pirani : Under the legislation as it stands at the moment, the primary responsibility for dealing with postal vote applications is with divisional returning officers. All the amendments that are included in schedule 1 of the bill replace the DRO with the Electoral Commissioner and a delegate of the Electoral Commissioner.

CHAIR: So the Electoral Commissioner can then delegate back to the DRO, but the central conduct is with the Electoral Commissioner.

Mr Pirani : That is correct. There is really no change to the process involving the parties in relation to their ability to use postal vote applications and being able to print postal vote applications. There has been no change to section 184AA in relation to copyright, so the political parties will still be able to print the approved form, to add the material that they send out to electors, to send it out to the electors and to receive hard copy.

CHAIR: Can you explain to the committee in plain English why events have taken over the current legislation in terms of the divisional returning officer being designated rather than the Electoral Commissioner.

Mr Killesteyn : When the act was first designed, we were talking about a process from some 100 years ago where the whole process for managing the election, including the postal vote application process, was with DROs. We have now reached a position, as we indicated in our submission, that we have close to a million postal vote applications every election. That number is likely to grow every election. It is a consistent trend that the number is growing. So the notion that this work can be done within a divisional office has now essentially been lost because of the volumes.

CHAIR: Are you saying that what this allows you as Electoral Commissioner to do in terms of the processing or pursuing of postal vote applications is to pull stuff out of particular divisions or whatever, and do stuff on a global basis more efficiently than the way it is currently designated on a divisional returning officer basis? Is that what a lot of this is about?

Mr Killesteyn : That is correct. In fact, for more than a decade, the process has been increasingly centralised through the APVIS. The APVI System essentially takes the details of postal vote applications, the data from which has been entered by divisional office staff—and usually these are people who have been employed during the election period—and makes a determination as to how the postal vote certificate is going to be issued to the particular elector. It is either done centrally—in fact, most of the applications are done centrally and issued from a central point—or, depending upon the address of the elector, if it is a more remote elector, the printing of the postal vote certificate could be done in a divisional office.

CHAIR: So this will give you more flexibility along those lines?

Mr Killesteyn : It gives us more flexibility but also reflects the system of centralised processing of large volumes of work which has increasingly been put in place for the last decade. We have close to a million postal vote applications.

CHAIR: Is there anything else that you want to tell us about the act in its current form—any complexities it is creating for you in relation to this provision?

Mr Killesteyn : Not really. What we are trying to do is, in a sense, clean up the act to reflect current practice, because the act is still based on an old concept—

Mrs BRONWYN BISHOP: No, it's not.

Mr Killesteyn : The act is still based on an old concept of processing postal vote applications through divisional offices. That has been centralised over the last decade under the APVI System, which has been looked at on a number of occasions, through the joint standing committee, and has essentially been endorsed as the way to deal with these large volumes of postal vote applications. I say again, categorically, that the option for political parties to continue to send out postal vote application material will not change under the provisions of this bill.

CHAIR: But, if it changed, it would require other legislative change to preclude political parties from doing what they are currently doing; is that correct?

Mr Killesteyn : There would be other legislation required to prevent or stop political parties from sending that material out.

CHAIR: So, if this provision is enacted, would it enable you to stop political parties from doing what they currently—

Mrs BRONWYN BISHOP: No, but what it does—

CHAIR: I am asking questions.

Mrs BRONWYN BISHOP: But what it does, am I not correct—

Mr Killesteyn : The answer to your question, Chair, is no.

Mrs BRONWYN BISHOP: But what it does change is that the applications will no longer come back to the political parties themselves—

Mr Killesteyn : No, it does not.

Mrs BRONWYN BISHOP: who will then take them back to you.

Mr Killesteyn : I am sorry, Mrs Bishop; it does not.

Mrs BRONWYN BISHOP: You have the power under the act to say they will come back to you. That is the ambiguity in the memorandum and in the legislation—

CHAIR: Can we have an answer to the earlier question.

Mr Killesteyn : I am sorry. That is not the intention. Mrs Bishop, if you wish for that clarity to be included then that is fine as far as the AEC is concerned.

Mrs BRONWYN BISHOP: I want that clarity in there.

Mr Killesteyn : It is certainly not intended—

Prof. Costar : For what it is worth, it is not fine by me.

CHAIR: I know. It is a philosophical debate. The position is that what we are seeking is: what is the intent in this bill? I understand that people want to go further, and I respect that. We actually made those recommendations, but it has not been picked up. But what I want to avoid and what should be avoided—I do not think there is dispute on this—is it happening by stealth. I think that is where Mrs Bishop is coming from. We might have a different view.

Prof. Costar : I do not want it happening by stealth, but I also do not want us taking actions through commentary and narrative about this bill which may preclude action on other bills in future.

CHAIR: I am not against other action. That is a separate issue.

Senator RYAN: Mr Killesteyn, I appreciate what you just said: that you do not believe that that is possible under this bill. Mr Pirani, I am a bush lawyer at best. Is it a possible interpretation of this bill that such a decision or determination could be made by a future commissioner?

Mr Pirani : The answer to that is no.

CHAIR: Can you take us to the provision?

Mr Pirani : In 2010 we did have an amendment that would have had that effect. That was in the Electoral and Referendum Amendment (Modernisation and Other Measures) Bill 2010. It was in schedule 6, and it was item 2 of that schedule. Item 2 inserted the word 'directly' in section 184(2) and 184(3). That is what it would have done, which would have meant that with the PVC resultant from the PVA, when a person filled out the certificate and the envelope and sent it back to us, it had to come to the AEC directly. That amendment was withdrawn by the government in the Senate prior to that legislation going through. So as the act currently stands, with the amendments that are proposed here, it is not possible for the Electoral Commissioner to prevent the political parties sending out the PVAs, receiving them back and then forwarding them on to the AEC. There is no change.

Mr GRIFFIN: I do not have any questions. I think Mr Pirani made that point very clear then, and I think that is a key part of what we need to do, which is basically not to do what Mrs Bishop is talking about.

CHAIR: So there is no need, in effect. What you are saying, Mr Pirani, is that there is no need for further clarification. It is pretty clear.

Mr Pirani : As far as I can see, as a matter of law it is absolutely clear, particularly—

Mr GRIFFIN: What you are saying is that it is not only clear but legally clear.

Mr Pirani : It is legally clear, particularly given the legislative history of these provisions and what occurred in 2010.

Mr GRIFFIN: So no commissioner in future, if there is no further change other than what is outlined in this bill, is going to be moving down any track along the lines of what has been suggested, because they cannot legally.

Mr Pirani : Without an amendment to the act.

Mr GRIFFIN: Correct.

Mrs BRONWYN BISHOP: And there will be no attempt to do it.

Mr Pirani : Without an amendment to the act.

Mr GRIFFIN: There will be no legal power to take any such action.

CHAIR: Let us just get it from Mr Killesteyn, who is the relevant officer. Might I say that it is relevant if he gives evidence on oath before a committee as to what his interpretation is if he subsequently does something different.

Mr Killesteyn : You can see from attachment 3 to our submission, which details the postal vote application process that will be in place for the next election and certainly was in place for the elections prior to that, that there is no intention—

Mrs BRONWYN BISHOP: I do not want an intention. You will not do it?

Mr GRIFFIN: No, there is no legal capacity, is there? That is the point.

CHAIR: Is it your view that there is no legal capacity at the moment?

Mr Killesteyn : That is my view, but nor is there an intention. This is not an attempt to deal with this particular issue. This is simply an attempt to clarify the existing legislation to reflect current practice.

Mrs BRONWYN BISHOP: So there would be no attempt to find anything under this current bill, and you would in no way attempt to prevent political parties having the postal vote applications come back to them and then go in to be processed by you.

Mr Killesteyn : There will be no attempt to do that—absolutely.

Mrs BRONWYN BISHOP: The next thing is that you are changing the definition of who is entitled to apply for a postal vote application. You are changing it from 'an elector' to 'a person'. The reason you appear to be doing that is to make less work for you.

At the moment, if it is 'elector' and someone who is not on the roll applies, you have an obligation to see whether or not they are entitled to be on the roll. When you change it to 'person', all you have to do is match up the application and, if they are not on the roll, then it will not be dealt with and they have no way of casting the equivalent of a postal provisional vote.

CHAIR: I do not think that is the basis of why it has been—

Mrs BRONWYN BISHOP: It does not matter if it is why, but it seems to me that is the impact of the legislation.

CHAIR: Can we clarify that please?

Mr Killesteyn : The first reason: we are not doing it to make it easier for the AEC—

Mrs BRONWYN BISHOP: That is my judgment.

Mr Killesteyn : You have made that comment and let me respond to it. We are doing it to give maximum opportunity for a person who is applying for a postal vote to get the postal vote certificate material as quickly as we possibly can. That is the first reason. It is an elector-centric—

Mrs BRONWYN BISHOP: Explain to me why that is the case. You no longer have to check whether the person is entitled to vote. Is that correct?

Mr Killesteyn : We are talking about—

Mrs BRONWYN BISHOP: Just answer me that—

Mr Killesteyn : Mrs Bishop, if you allow me to explain I will.

Mrs BRONWYN BISHOP: I did say: when you change from 'elector' to 'person', you no longer have to check whether the person is entitled to vote. Is that correct?

CHAIR: Which quickens the process—

Mr Killesteyn : Which quickens the process—

Mrs BRONWYN BISHOP: But that is correct, is it?

Mr Killesteyn : Let me also explain—

Mrs BRONWYN BISHOP: Is it correct?

Mr Killesteyn : Yes, but—

Mrs BRONWYN BISHOP: Thank you.

Mr Killesteyn : we do also check the enrolment status of the person—

Mrs BRONWYN BISHOP: I know you do.

Mr Killesteyn : Every single applicant for a postal vote is checked against the electoral roll. The resultant process is that some are already matched against the electoral roll, some we would regard as unmatched because we cannot find them on the electoral roll at the time—

Mrs BRONWYN BISHOP: Correct. That is the present position.

Mr Killesteyn : However, when the postal vote certificate comes back with the ballot, before the ballot is entered into the count, a further check is done of those which are not matched—which is only a relatively small percentage—before the ballot is admitted to the count.

CHAIR: It seems to me, Mr Killesteyn, that this assists the franchise; in effect, the current way of doing it compared with the recommended way that you are now saying we should do it, will result in more people being knocked back, so to speak—

Mrs BRONWYN BISHOP: That's right.

CHAIR: in other words, delaying the process. So if they are not enrolled that creates a problem in sending out a postal—

Mr Killesteyn : The fact that they may—

CHAIR: So the key process is the second part, not the application in terms of the enrolee. I am just saying that it seems to me that you are enfranchising, not disenfranchising, with this amendment.

Mr Killesteyn : Indeed, this is very similar to the process that is applied for all other declaration votes. If a person goes to a polling place and cannot be found on the electoral roll, then they are given an opportunity to put in a provisional vote. Subsequent checking as to whether they are on the roll occurs at scrutiny stage. It is exactly the same for absent votes. So there is nothing particularly unique or novel about this issue that we are talking about. It is exactly the same as would apply to any other declaration vote. The checking of the enrolment status is done as part of APVIS, up-front. For those that cannot be matched, we do not remove the opportunity for them to cast a ballot—in the same way that a person casting a provisional vote at a polling place is given an opportunity to cast a ballot. When the postal vote certificate comes back we then seek further information to determine whether the person is validly on the roll. If they are—for some reason they were not on the certified list—then the vote will be admitted. If they are not, then the vote is not counted.

CHAIR: Professor Costar, have you got a view on this?

Prof. Costar : I support that amendment. I do not see there is any problem with it, because you need to make a distinction, as the commissioner is doing, by the person who is filling out the PVA and the person who eventually votes. The person who eventually votes has got to be on the roll, and that will be checked.

Mrs BRONWYN BISHOP: How many postal vote applications are currently denied because they are not on the roll?

Mr Killesteyn : I would have to take that on notice, Mrs. Bishop. I do not know the answer to the question. We match, at the time that the applications come in to the electoral roll, about 96 per cent of the postal vote applications to the electoral roll. So four per cent are unmatched. That four per cent still get a postal vote certificate.

When the postal vote certificate comes back, we then check their enrolment status. Of that four per cent, I will get the number for you.

CHAIR: If you have those figures, you can get those back to us.

Mrs BRONWYN BISHOP: Under your proposed changes, how many people do you expect will be added to the number of valid postal votes or will it perhaps be the reverse, fewer?

Mr Killesteyn : Again, I do not think this will change the numbers that are going through at the moment. These are amendments which are reflecting current practice. So it is not likely to change any numbers coming through. I re-emphasise that this is not about changing fundamentally any of the current processes for dealing with postal vote applications; this is about trying to modernise the law to reflect current practice against the background of large volumes of postal vote applications which require a much more centralised way of managing them.

CHAIR: Would it be fair to say you are trying to cut some red tape?

Mr Killesteyn : I am trying to make it as efficient as possible, to get the postal vote certificates out as quickly as possible. I will give you an example of the sorts of issues that we are confronting here. In the seat of McEwen there were 9,000 postal vote applications and in the seat of Lingiari in the Northern Territory there were 1,000 applications. In that sort of stark difference in workload, you need to find ways to spread that work and the way that the Electoral Commission has done it over the last decade is to centralise that work through the APVIS. The amendments seek to recognise the greater level of technology that is being applied now to the whole process of postal vote applications.

Mrs BRONWYN BISHOP: We will come to technology in a moment. The way the current system works is that those PVAs come back to political parties who then take them down to the DRO. I know historically there has been an attempt by the Electoral Commission to reduce the number of DROs. For instance, in my own electorate we had to fight very hard to keep our DRO because there was a move to try to amalgamate it in with another DRO, which was a long way away. We won that fight. Under this it seems to me that DROs are under attack. You have said that under this new legislation you will have the power to delegate whomever you like. The DROs' authority is removed and yours is put in its place and you in turn have the power to delegate your powers to anyone you like. There is nothing in this legislation that says you must delegate to DROs.

Mr Killesteyn : No, but there must be a divisional returning officer established for every electorate. The law requires that.

Mrs BRONWYN BISHOP: Yes, but your power is not delegated. The power is taken away from DROs in this legislation and given to you but there is no obligation in the legislation for you to delegate to the existing DROs.

Mr Killesteyn : That is true, but we have a centralised process—

Mrs BRONWYN BISHOP: No. We take our applications to the DRO who then deals with them.

Mr Killesteyn : And you can still do that.

Mrs BRONWYN BISHOP: There is no absolute guarantee in any of this is that there is.

Mr Killesteyn : The DRO is simply arranging for the data entry of all of the postal vote applications—

Mrs BRONWYN BISHOP: That may well be the case but there is no guarantee in here that that happens because their power is taken away.

Mr Killesteyn : No.

Mrs BRONWYN BISHOP: DROs at the moment have the power to make decisions.

Mr Killesteyn : The process that you are describing is one where or the postal vote application coming from a political party needs to be entered into the system so that we can issue the postal vote certificate. Political parties will be able to take those postal vote applications to the divisional office and it has already been arranged that the divisional office—in fact it happens every election and we are already planning for it to happen at the next election—will data enter all of those postal vote application details, both those that are submitted directly by the public to the divisional office and those by political parties.

Mrs BRONWYN BISHOP: So you are giving me an undertaking today that you will in fact delegate to DROs?

Mr Killesteyn : Indeed.

Mrs BRONWYN BISHOP: Good. So there will be no attempt to not delegate to them? I accept your word that you will delegate to DROs.

Mr Killesteyn : The process that you see as a member of parliament or, rather, will see as a candidate, where you would take your postal vote applications to your local office, will still be there.

Mrs BRONWYN BISHOP: Good. As the chair has pointed out, this is evidence under oath, so I accept that that will continue to occur.

Then I come to the question of technology. I am hoping that for this coming election we will have the rolls electronically linked so that, when John Smith comes in to vote at a polling place and his name is ruled off, it will be ruled off every other roll in that electorate and the absentee rolls. Are we going to be doing that?

Mr Killesteyn : The legislation to provide for electronic certified lists was passed, I think, in June 2010. For the next election, assuming it is an election in the latter part of 2013, we will have electronic certified lists, but, Mrs Bishop, they will not be extensively deployed across the whole of the Australian electorate. That is for a couple of reasons: (1) this is the first time that the AEC will have done electronic certified lists and there is a process of learning that we need to go through; and (2) we are talking about a resources issue. We have 7½ thousand polling places with on average six or seven, I think, issuing points; that would require close to 45,000 devices of some kind. So there are cost, resources and deployment issues. Then there are issues around the ability of the networked systems to automatically replicate the electoral rolls, as they are marked off, to a central point. You cannot guarantee that the technology and the networks are available to do that across the board. For 2013, we will be deploying a modest number to trial a range of design issues for electronic certified lists.

Mrs BRONWYN BISHOP: Could you explain to me how Victoria is managing the question of electronic certified lists?

Mr Killesteyn : Victoria does not issue them across the whole of the Victorian electorate, nor does any other state with the exception of Tasmania, and Tasmania does not have centralised marking-off.

Mrs BRONWYN BISHOP: So explain to me precisely what Victoria are doing.

Mr Killesteyn : In the same way that the AEC is contemplating, they have a small deployment of electronic certified lists. And each state, each electoral commission, is currently trialling the way in which to deal with electronic certified lists, including the option that you are suggesting of centralised marking-off.

CHAIR: Are you able to particularise those certified lists? Are they for absentee voters? How is it done?

Mr Killesteyn : We are testing a range of electronic certified list deployments, including pre-polls and mobiles as well as static polling stations.

CHAIR: Right.

Mrs BRONWYN BISHOP: Commissioner, I think at one stage you and I had a discussion about how this could be done, and I pointed out that it could be done using netbooks—cheap, easy—or tablets, whatever you like. Technology has moved very quickly, much more quickly than the AEC, I suspect. Can we have an undertaking at least that it will be done in all marginal seats?

CHAIR: How can you do that?

Mr Killesteyn : We are still looking at the deployment strategy, Mrs Bishop. We have not come to a view about or finalised particular seats. But, even for marginal seats, which marginal seats are we talking about?

Mrs BRONWYN BISHOP: All—anything under 10 per cent.

CHAIR: What do you define as a marginal seat these days?

Mrs BRONWYN BISHOP: Anything under 10 per cent would do, for starters.

Mr Killesteyn : As I say, we are still looking at the question of how they should be deployed. The system is currently being designed and built. I do not expect that the system will be ready until early 2013, and until—

Mrs BRONWYN BISHOP: So, if we had an election in 2012, what would happen?

Mr Killesteyn : Nothing, because the system will not have been built and tested to sufficient—

Mrs BRONWYN BISHOP: So we can expect another 20,000 multiple voters.

CHAIR: I want to use this opportunity to put my view on the record. I am a dinosaur. I reckon when this is implemented, if it is implemented, it will blow up in the face of the election in which it is conducted. I just put that on the record.

Mrs BRONWYN BISHOP: Only if it is inefficiently done.

CHAIR: Dazza told you!

Mr Killesteyn : Chair, that is one of the reasons that we are looking at doing this very carefully.

CHAIR: Exactly. You have to crawl before you can walk. We have one of the best electoral systems in the world when it comes to close results that have been accepted. To move from it to a new system which is fraught with computer danger is unbelievable. But that is for another day.

Senator RYAN: I think that is word for word my speech against automatic enrolment.

CHAIR: That is for another day. Ms Bevan, we are going to come to your area in a minute, but is there anything on this that you want to add?

Ms Bevan : No, thank you.

CHAIR: Professor Costar?

Prof. Costar : I think you will rule me out of order, but I am puzzled that we are still debating the structure of the AEC and DROs when the first report on this was years and years ago. All I would ask is: do people still try to pay their electricity bills at DROs? If we are talking about technology, I think it is time we took a serious look at this antiquated system of DROs. I can see no purpose that they serve, other than being security blankets for local MPs­—

Mrs BRONWYN BISHOP: You are quite right: you are out of order.

Prof. Costar : and they are very thin security blankets at that. But that is probably out of order.

CHAIR: We will not open this up. The last thing I need at this stage of my career is the DROs coming after me. We can do that another day.

Senator RYAN: How many general postal voters are there? These are the ones who get mailed ballots automatically.

Mr Killesteyn : If you look at our submission, you will see the graph on page 7.

Senator RYAN: Yes, sorry. There are just over 200,000.

Mrs BRONWYN BISHOP: There are 209,000.

Mr Killesteyn : Yes. That is for the last general election. You can see the numbers increasing.

Senator RYAN: With the updates to all the paperwork, I am missing something.

Mr Killesteyn : To put it on the record, there were 132,929 in 2004, there were 171,275 in 2007 and there were 209,426 in 2010.

Senator RYAN: Is that how many ballot papers are mailed out? I am wondering how many are returned. Do you have data on the return rate?

Ms Neilson :    Not in that detail. We can get the detail of how many came back.

Senator RYAN: I know it has gone through pretty extraordinary growth, as postal votes generally have.

Mrs BRONWYN BISHOP: So has the population.

Senator RYAN: I was just wondering: do you look at whether or not to return rate of these ballots is declining and whether or not people are mistakenly turning up to a polling booth? You cannot tell how they voted, but you can tell that a postal vote was mailed out and whether or not they turned up at a polling place because they had forgotten they were a general postal voter or they cast an absentee vote or something. Do you keep that sort of data?

Mr Killesteyn : Can I take that on notice?

Senator RYAN: Sure.

Mr Killesteyn : If we have it, I will certainly provide it to you.

Senator RYAN: I am interested in the return rate.

Ms Neilson : We do know that the return rate for postal votes has been pretty static over the years. Of the ones we send out, a certain percentage come back, and that is fairly static, as is the number that get counted.

Senator RYAN: I was going to move to that. Do you also keep data on postal votes for which there is an application? Do you keep data with respect to the number that are returned and the number of people who are mailed them who similarly vote absentee or turn up at a polling place? Is that data normally collected?

Ms Neilson : No.

Mr Killesteyn : We look at general return rates, both for GPVs and for other—

Senator RYAN: I am just thinking of integrity measures, because we are getting to the point where there are a lot more postal votes. I think you yourself, Commissioner, have described it as a polling period rather than a polling day, as it was previously. Is it something that you think the AEC should look at more often? Basically, if we have a million ballot papers out there, what measures are in place to make sure that while secrecy is maintained those ballot papers cannot be misused?

Mr Killesteyn : The APVIS itself, which is the centralised system that we have been building, contains integrity measures, including that when the ballot papers are issued they have an authentication, if you like, which is a machine mark on the ballot paper, in the same way that a ballot paper issued at a static polling place includes the initials of the issuing officer.

Senator RYAN: So they are distinguished from a ballot paper issued at a polling place.

Mr Killesteyn : Yes, they are.

Senator RYAN: This may be a simple question. It is not possible for someone who is in receipt of a postal ballot to take that ballot paper along and put it in a ballot box and for it not to be detected on the night?

Ms Neilson : It would be detected, because postal votes have a different form of words on the bottom.

Senator RYAN: Sure.

Senator RHIANNON: Maybe this is a question to take on notice. I am interested in whether the AEC is tracking the trend of online methods of postal vote applications. How is that impacting? I was particularly interested in whether there is a shift in where those postal vote applications are being sent by voters, as to whether it is direct to the AEC or at the same rate to parties and candidates.

CHAIR: I know that there was a table in each of the last two elections that I was able to look at on a continuing basis. The commission had on their website a breakdown of postal votes. Maybe that is what you are talking about, Senator.

Mr Killesteyn : In terms of the online postal vote application system, bear in mind that it has not yet applied. It will be applied at the next election. It has not applied at any other election.

CHAIR: No, but I recall seeing a table that told me how many postal votes in my area had been processed by the Labor Party, by my opponents or in general that went into the commission.

Mr Killesteyn : Yes, we can get that. If that is the question that Senator Rhiannon is asking, then we can get that for you.

Senator RHIANNON: That would be useful, but I was also interested in—obviously this is a few years down the track—whether you will be looking at those trends when we have the online method of postal voting.

Mr Killesteyn : Yes, we will be able to track whether a postal vote application comes in on paper or whether it is made online. Certainly in the AEC's next report to the joint standing committee after the next election we will include statistics on the source, if you like, whether it was a paper or an online application.

Senator RHIANNON: That would be good. That would be very useful.

Senator RYAN: With the checking of postal votes for which that application has been made, you will continue to check signatures on the envelope that is returned as opposed to the application? That will still be undertaken?

Ms Neilson : There will not be a signature on the application anymore, because that was taken out of legislation in 2010. The certificate itself will have to be signed and witnessed by a witness. So that part of the envelope has not changed.

Senator RYAN: If we put automatic enrolment to one side, your commission's view is that you are more confident that the address list or the certified list will be more accurate due to that over the longer term. I do not want to go there. We disagree. How do you make the commission confident that the person who filled out that ballot paper and signed that certificate is the person for whom you have a name and address?

Ms Neilson : We have added to the postal vote application—because we no longer have that signature to check, which is what the old process was—what we are calling a security question and answer, which is a series of five different questions that the elector can choose. They will then provide the answer to it, and that will go into the system. The elector will then be asked that same question on the postal vote certificate itself, and we will compare those two as a measure of authenticity.

Senator RYAN: So you could take three to five questions. I am guessing that they are like a web password. It will be mother's maiden name, name of first pet—that sort of thing.

Ms Neilson : They are, 'In what town or city were you born?', 'What company did you first work for?', 'What was the last school you attended?', 'What was the make or model of your first car?' and 'What is the middle name of your oldest child?' We were conscious that the postal vote certificate comes through the postal system with those details on the front.

CHAIR: Are they the standard questions for every postal vote?

Ms Neilson : Yes.

Senator RYAN: And the elector gets to choose one on the application?

Ms Neilson : They choose which one they are going to answer.

Senator RYAN: And the certificate then comes to them with that question which they have to answer.

Ms Neilson : Yes.

Senator RYAN: What do you do if the answer is different, or if there is, say, a crossover? Let us say they were born in Brisbane and they come back saying they were born in Queensland.

Ms Neilson : It is only one of the measures that we are using to test the authenticity of the postal vote certificate. If it does not match, it is not a reason to throw the certificate out or not allow the vote. It is just one other measure of determining the authenticity, so that the person who applied for that postal vote on that postal vote application is the same person that actually filled out the postal vote certificate.

Senator RYAN: I will continue on this but I want to go back a step in a second. Let us go through this then. What does it take? So I have failed to answer a question. 'In what city were you born?' I have said 'Queensland', rather than 'Brisbane'. What has to be incorrect before you discard the vote? One of the things I am keen to know here is this. I appreciate you have probably got a risk management sort of tool but, in terms of integrity, one of the reasons I like pencil and paper and not electronic voting is it gives transparency by virtue of its simplicity. I would be worried if we were getting into a more complex definition of how we determine the integrity of a postal ballot. So where do we go then if the answer is wrong?

Ms Neilson : As I said, it is only one of the tests for authenticity. First of all, the certificate itself has to be properly filled out, so it has to be properly signed and properly witnessed, and there has to be evidence that the voter has actually voted before the close of polling.

Senator RYAN: Let us just go to the point. I am worried about the person here not being the person who filled out the application. Let us assume all of those other issues. I am worried about the person.

CHAIR: I am loath to interrupt but Mrs Bishop took issue early on about how we are dealing with a particular bill. We need to relate this to an aspect of the bill.

Senator RYAN: The reason I am going to this, Chair, is that I then want to turn to this. Because the parliament has just passed automatic enrolment provisions I want to ask how these particular provisions then interact with those.

CHAIR: That is okay. I was just raising it with you. I was defending Mrs Bishop here.

Mrs BRONWYN BISHOP: I don't need—

Mr Killesteyn : Ultimately it is for the DRO to be satisfied as to the identity of the individual. That is what the act says. The security question is one element of whether the DRO can be satisfied about the identity. If the question is answered incorrectly, for instance, from what we have got recorded, then that would initiate a process by the DRO to satisfy himself or herself about the identity of the person. That may require further inquiries from the individual. The contrast that you are making is a valid one in relation to: is this better or worse than a comparison of signatures?

Senator RYAN: That is only one part of where I was going.

Mr Killesteyn : Yes, that is one part, so let me deal with that. We have just as many problems with comparisons of signatures primarily because signatures change. In fact, one—

Senator RYAN: We have had this discussion before, and I agree. But the point I make, and this is the reason I am steering away from that, is I know that Mr Pirani and you have said previously in this room, I think, that signatures might change between enrolment and postal votes. But in this case the reason I confined it purely to the application and vote is signatures do not change over six weeks. That is why I excluded that earlier issue which we have had that discussion on, on automatic enrolment. I know my signature changed from the moment I enrolled to vote, when I was 18, as opposed to now, being 39. But it will not change much between applying for a postal vote at the start of a campaign and the signature on the certificate at the end of the campaign.

Mr Killesteyn : We still find that there are cases—in fact, I was in one of my divisional offices last week and discussed this very issue—where signatures compared between the application and the postal vote certificate are different and they are rejected.

Mrs BRONWYN BISHOP: Good.

Senator RYAN: That is the way it is meant to work.

Mrs BRONWYN BISHOP: That is what is meant to happen.

Mr Killesteyn : But invariably that leads to a complaint. It is primarily through people that are aged where signatures can change.

Senator RYAN: I appreciate that, Mr Killesteyn. With all due respect, we are going back. You might say that is a problem. I personally am not as concerned about that as I am about the risk to the roll. That is all of a different world view on the role of the AEC to maximise enrolment. It is a different view. The reason I wanted to go to this is this bill does make some subtle changes around the power of a commissioner. Does this bill in any way empower you or the commissioner to set more national strict standards? I ask because at the moment, given the way that you explained it, I understand there is some discretion with the DRO. Do you have any written advice for how to handle conflicts between application and certificate? Do you intend to roll those out?

Ms Neilson : DROs are instructed that if there is no signature record available, so there is no comparison with an enrolment, a DRO can admit the vote if there is no reason to suspect the elector's signature. Ultimately, as the commissioner said, if there is doubt as to the authenticity the vote will not be admitted.

Senator RYAN: Sorry, so you said if there is no signature the vote can be admitted?

Ms Neilson : If there is no signature comparison. So it is if there is no enrolment form.

Senator RYAN: But there has to be a signature on the application and on the certificate?

Ms Neilson : The certificate cannot be admitted unless it is signed.

Senator RYAN: And until recently there had to be a signature on the application. But there is no signature on the application going forward, because of the legislation you mentioned—which has slipped my mind. Is there a sort of decision tree for DROs around: 'if this question is not answered, do this'—a strict set of rules, because, I will be honest, you do not want a situation like McEwen happening too often, whereby courts are reviewing individual decisions, if there is not some standard about those decisions. Otherwise you get into Gore v Bush territory in the year 2000, with different standards being applied, causing some questions.

Mr Killesteyn : I am just going through the postal vote certificate myself, and on the actual postal vote certificate there is a range of check-boxes, if you like, which are required to be ticked yes or no. It goes through a series—perhaps like a decision tree: received on time, yes/no; elector's signature, yes/no; witness's signature, yes/no; voted on time, yes/no. Then there is the check with our roll management system, RMANS, which we have spoken about before: matched, yes/no; address register—that checks the veracity of the address; electoral history, so that we can check whether the person has voted in the past, so there is some pattern; and then there is: enrolled at roll close, formal enrolment, the date, state, territory, subdivision code and so forth; word okay—that is the security question; sign okay. Often, while it may appear somewhat surprising, we do get postal vote certificates that are signed in a different name from what the certificate has been addressed to; those are obviously rejected. There are basic checks like that. Then there is the determination: full admit or partial admit, depending upon whether it is admitted for both the House of Representatives and the Senate or just the Senate, which may be affected by the address, for instance.

Mr Rogers : Senator, it is open to the DRO to contact the elector if they have still got concerns about that elector.

CHAIR: You also have a situation where there are scrutineers who, if they are scrutinising a process, can object to the admission—

Mrs Bronwyn Bishop interjecting

CHAIR: Yes, I know, but I am just saying: there are scrutineers there who can kick in—

Mr Killesteyn : The only other thing I would add is that this process of using security questions is one that is used in other states—New South Wales in particular—and certainly I have not heard of any reports out of the last New South Wales election of concerns about the security question or indeed that it did not provide sufficient integrity of the process.

Senator RYAN: I appreciate that, Mr Killesteyn, but again, to put on record my concerns that, just because the states do it does not mean we should do it, and around a number of these issues it is almost impossible to prove there is an issue, because we do not have the data collection to establish whether there is a problem at all. I just wanted to restate that.

Mr Killesteyn : I share your concerns, and that is one of the reasons that, in the face of an amendment to allow online postal vote applications, the AEC took the decision to impose the security question to assist in the integrity of the process. In the absence of the security question, I think the sorts of concerns that you are raising would be at a much more elevated level.

Senator RYAN: Sure. Thank you.

CHAIR: Mrs Bishop.

Mrs BRONWYN BISHOP: I want to start by asking, Ms Neilson, if you would answer Senator Ryan's question. If the answer should be 'Brisbane' and the answer comes back 'Queensland', do you rule that vote in or out?

Ms Neilson : We do not rule it out, but it does prompt us to do some further integrity checks such as comparison of the signature to—

Mrs BRONWYN BISHOP: There is no signature; this person has been automatically enrolled. What happens?

CHAIR: But there is a signature on the envelope returning the ballot paper and there may be a signature—

Mrs BRONWYN BISHOP: No, this is before that.

CHAIR: No, I thought we were talking about the end of the process.

Mr Killesteyn : There may be a signature on file.

Mrs BRONWYN BISHOP: What if there is none?

Mr Killesteyn : Then that would lead to further inquiries, as Mr Rogers has indicated, where you might contact the elector and ask for some other form of identity. The act is silent in relation to the form of identity that can be required. Ultimately, the decision is one for the DRO to make about whether the vote should be admitted. It is the DRO, according to the act, who has to be satisfied as to the identity of the individual.

Mrs BRONWYN BISHOP: Okay. I want to go back to the minister's second reading speech, where he says:

The current act provides that applications are made to a divisional returning officer who processes the applications and dispatches the postal vote packages. The postal votes are then returned to a divisional returning officer, processed again and counted.

This amendment will mean that in the future all those applications will go through to some central point—is that the case?

Mr Killesteyn : No. The APVIS is a centralised processing of—

Mrs BRONWYN BISHOP: What does that mean?

Mr Killesteyn : All of the data is entered in our distributed divisional office network. So the application comes in in as a paper form. It has all of the details of the person applying. That paper form, if it comes in on paper form, will go to our divisional office network.

Mrs BRONWYN BISHOP: It goes to the divisional office now. What happens under this proposal?

Mr Killesteyn : Exactly the same; it will not change. It is just that the current act contemplates that the divisional returning officer does all of this work—enters the application, sights it, initials it and dispatches it. Over the last decade, the system has been that the data is entered through data processing operators right across Australia in every divisional office and indeed some of our state offices because of the large volumes. That data is then transmitted to a central system, APVIS, and the APVIS collects all of that data and makes decisions about whether the postal vote certificate will be sent to a central printer for printing and dispatch or whether it will be sent back to a divisional returning officer to dispatch the postal vote certificate. That happens in a small number of cases where we know, for instance, that there is not a regular mail run or indeed where the addresses are to remote communities.

CHAIR: Let me clarify that for the seat of Banks, for instance, if we are talking about these particular votes. The votes would come in to the actual divisional returning office in Banks and to other divisional offices around Australia—say, something that got processed and sent to Queensland could be processed in a Queensland divisional returning office centrally. Is what you are saying?

Mr Killesteyn : Are we talking votes or applications?

CHAIR: Applications. We are talking about this particular process. It would not have to come back to the electorate of Banks.

Mr Killesteyn : No, in many cases they do not. They could be sent to—

CHAIR: That is what you are formalising?

Mr Killesteyn : Yes, they could be dropped—

CHAIR: It is not the divisional returning officer for Banks doing it; it could be a number of other divisional officers doing the Banks stuff. That is what this allows.

Mr Killesteyn : That allows for that, but it is primarily a centralised process where the data is collected from all of our data entry points across Australia. The data is then centralised into our APVIS and the APVIS processes the data and makes the decision about how the postal vote certificate should be issued, whether it is issued by a major despatching house or whether it is issued by our divisional returning officers.

Mrs BRONWYN BISHOP: Before I return to the second reading speech of the minister, which is now in some danger of being incorrect, is that process you have just described happening now?

Mr Killesteyn : Yes.

Mrs BRONWYN BISHOP: Right. So you did not need any change to the legislation for that to occur?

Mr Killesteyn : We had some advice back in 1999 that the centralised processing was acceptable under the act.

It is our view that the process is increasingly getting less and less acceptable under the act. This is an opportunity to modernise the act to reflect the way in which centralised processing needs to be put in place, because of the volumes that we are having to manage.

Mrs BRONWYN BISHOP: Just on this volume question, it seems to me by a quick look—and I have not done a graph—that the number of postal votes is probably in step with the increase of the population.

Mr Killesteyn : That may be the case.

Mrs BRONWYN BISHOP: As we grow as a nation you have to deal with more votes, so stop whingeing about it.

Mr Killesteyn : I am not whingeing, but we have a fixed period of time for the election—

Mrs BRONWYN BISHOP: Yes, and we have been making your job easier in that respect.

Mr Killesteyn : and within that fixed period of time the work load is growing.

Mrs BRONWYN BISHOP: So what you are telling me is that this act will in fact make no difference at all to your current practice.

Mr Killesteyn : Yes, this act is designed to reflect the current practice.

Mrs BRONWYN BISHOP: Except as the minister says in his speech:

Schedule 1 to the bill will simplify the postal vote arrangements by directing all applications to either the electoral commissioner or an assistant returning officer.

Now you already said that the system will not change at all. The minister has gone on record saying further:

Upon receiving an application, the electoral commissioner or an assistant returning officer will then send, or arrange for the sending, of postal vote packages to the applicant officer.

And you are telling me that is what happens now.

Mr Killesteyn : That is right. And using the word 'direct', it could be better described—with all due respect—that the applications are made to the electoral commissioner.

Mrs BRONWYN BISHOP: So it is another error in the second reading speech?

Mr Killesteyn : That is a matter for you to take up with the minister, Mrs Bishop, but I would simply describe it as the act saying that the applications are made to the electoral commissioner rather than to the divisional returning officer as is currently the case.

Mrs BRONWYN BISHOP: With respect, Mr Commissioner, when a new bill comes into the parliament and the minister is making a second reading speech—which, as you know, forms part of the official record for a court to pay attention to in the case of a court case—the accuracy of that second reading speech is so important that it is normally prepared by the department responsible for the oversight of this—in this case, yours. Now I would like to see where the drafting notes that came from you in the preparation of this legislation were and why there is a difference between what the minister says and what you say.

Mr Killesteyn : I do not think there is a difference. If you look at the amendment itself to section 184(2), which is essentially about the drafting, you will see that all that is happening is that the application is made now to the divisional returning officer and when the amendment goes through, if it goes through, then it will be made to the electoral commissioner. That is the amendment.

Mrs BRONWYN BISHOP: Are you going to have to employ one more person to do any of this?

Mr Killesteyn : No, Mrs Bishop.

Mrs BRONWYN BISHOP: Not one?

Mr Killesteyn : Because the practice that we currently have—

Mrs BRONWYN BISHOP: is already established. So this is a complete and utter waste of everybody's time?

Mr Killesteyn : I do not agree.

Mrs BRONWYN BISHOP: Let me read on, from the minister:

Directing the majority of postal vote applications to the electoral commissioner

t hat ' s you

will enable the centralised processing by computers and the centralised dispatch of postal vote packages.

That is already happening—you have just told me so.

Mr Killesteyn : And it has been happening since 1999—

Mrs BRONWYN BISHOP: 1999, when you got legal advice that said 'under the current act that is an acceptable practice'. So what the hell are we doing this for?

Mr Pirani : Mrs Bishop, there were two issues. Firstly, the 2010 amendments with the online PVAs resulted in the PVAs no longer going directly to the DRO for the relevant divisions. So we had to review the legislation in relation to those amendments. Secondly, after the 2010 election we had four legal challenges in the Court of Disputed Returns which looked at and raised various issues about PVAs, and we had a look at the process in the legislation and determined that it needed change. It is one of the reasons why recommendation 12 of the JSCEM report was based on a submission from the AEC that the legislation needed to be updated to remove any doubt about our ability to engage in these processes. That is what the provisions of the bill were designed to achieve.

Mrs BRONWYN BISHOP: None of that is in the second reading speech—none of it—and you are the agency that is charged with the responsibility of properly briefing the minister and preparing that second reading speech. In other words, once again you have not done it.

CHAIR: Well, I think that is unfair.

Mrs BRONWYN BISHOP: No, it is not unfair. Having been a minister I can tell you that is exactly how it is done.

CHAIR: I am sure, Mrs Bishop, when you were a minister the buck stopped with you, not your department in terms of what you said in parliament.

Mrs BRONWYN BISHOP: Absolutely! That is how it is done because of the importance—

CHAIR: I am sure you did not mouth every single word you were advised to mouth; you changed your speeches. I want to change the subject.

Mrs BRONWYN BISHOP: Well, I do not.

CHAIR: We will come back to you.

Mrs BRONWYN BISHOP: The fact of the matter is that the second reading speech was the only speech I, as a minister, ever read, because it is part of the record.

CHAIR: I accept that, but I do not accept that the commission is responsible for what was uttered in the parliament.

Mrs BRONWYN BISHOP: It is. It has to brief the minister on it, and none of it was in that speech.

CHAIR: You do not have the evidence. Let us not—

Mrs BRONWYN BISHOP: And none of it is in the explanatory memorandum either.

Mr Killesteyn : It is important to refer to the actual amendments.

Mrs BRONWYN BISHOP: And the explanatory memorandum. Where is it in the explanatory memorandum?

Mr Killesteyn : If you refer to the amendments, you will see that it is a relatively simple change, substituting 'Electoral Commissioner' for 'Divisional Returning Officer'—

Mrs BRONWYN BISHOP: That is exactly why I referred to the bill: because I do not think it is simple.

Mr Killesteyn : to whom the application is made.

CHAIR: I want to move on to another subject while we still have some time. I want to bring in Ms Bevan and also Professor Costar on this, because they have made some submissions. On the 'unsound mind' provisions, Ms Bevan, you just want them taken out altogether, don't you?

Ms Bevan : Yes, we do.

CHAIR: You do not want them replaced with anything else?

Ms Bevan : Actually, I do go through this in my submission.

CHAIR: Which paragraph? Can you just refer me.

Ms Bevan : The difficulty in writing the submission is that, although we agree with the change of wording in one respect, it is very difficult for us to comment on a paragraph in its entirety that we do not agree with.

CHAIR: The fresh wording, yes.

Ms Bevan : Could I just make a few points which I did include in my submission. Obviously we want the paragraph taken out, but if we look at what the amendment is, with the term 'qualified person', I am wondering what the assessment tool would be for that qualified person to make the decision that the person was incapable or did not have the capability to understand the nature and significance of enrolment and voting, because that is not addressed in the—

CHAIR: Yes, that is one of the things I wanted to explore with the commission and with you and Professor Costar. Professor Costar, you asked: must the opinion be in writing? Medical practitioners write medical certificates, but psychologists and social workers cannot. Are you still there?

Prof. Costar : Yes, I did. Yes, I am still here. You just broke up a little bit there.

CHAIR: There are few people that would like to break me up too!

Prof. Costar : We are in general sympathy with the removal of the phrase 'unsound mind', for the reasons that we point out here, and we refer to other authorities much more knowledgeable in this area than we are. The phrase is archaic. But I must say that I was pulled up, if you like, by reading the Electoral Matters Committee of Victoria's inquiry, where they were similarly inclined to remove 'unsound mind' and replace it with different wording. That is not what the current bill before you is doing, but it is addressing the issue. They received legal advice from the Victorian Government Solicitor that that would move to dangerous areas, and they retained the phrase 'unsound mind', even though I think you can see from the report that they are unhappy about it for the reasons that a lot of people are. With this question about how the qualified person is to provide the evidence, I would assume it is in writing. But, as we point out in our submission, medical practitioners—be they psychiatrists, general practitioners or whatever—are entitled and empowered to write medical certificates which have a certain authority. As far as I understand it, social workers in particular have no power to write the equivalent of medical certificates.

That is also coupled with the point that we make in our submission, at 4.9(d). It came up yesterday. I was listening to the Prime Minister talking about salary increases for people working in various areas of the community sector.

She illustrated her remarks by referring to a mythical person whom she called Michelle. She said that Michelle had a law degree and she also had a qualification in youth work and worked in a particular area. As we say in 4.9(d), you see this term 'social worker' being bandied around in the press and elsewhere, but that does not necessarily mean those people are qualified to be members of the AASW. I have no objection to psychologists and social workers being included in the category, but it seems to me that there needs to be some careful definition about it.

Also, we have another concern that by taking out the prefix phrase 'unsound mind' you might make the possible exclusionary nature of understanding the nature of voting far too broad. We are not being cute in saying: what if someone cannot explain what STV-PR is? You would disenfranchise 95 per cent of the population if you took a strict view of that. One assumes that is not going to happen. We note in our conclusion that this is a benign regime and we assume it would stay a benign regime, but it seems to me that there are some questions here that could well do with a bit more clarification.

CHAIR: My understanding is that the amendment adopts the definition of 'qualified person' from the Freedom of Information Act 1982, which includes medical practitioners—

Mrs BRONWYN BISHOP: What relevance is that?

CHAIR: I am just trying to identify where it comes from. I am not supporting it, but people want to know where it comes from so we can have this discussion. It includes medical practitioners, psychiatrists, psychologists and social workers. The current section says: 'by reason of being of unsound mind, is incapable of understanding the nature and significance of enrolment and voting'. So it would then become: 'is incapable of understanding the nature and significance of enrolment and voting'. What I am worried about is whether we are pushing this too far, with respect.

My other concern—I am just putting this on the record because I want this discussion—is that I do not want a situation where people in nursing homes are routinely going to be subjected to removal because a social worker comes in. Up until now, I think this has been a restrictive provision and people have accepted medical certificates from doctors. I raise the concern, frankly, about psychologists, social workers and even psychiatrists. I am not saying they do not provide reports to courts or whatever, but I do not want to push too far in this unless someone can tell me how big a problem this is and why you are doing it, other than just to have uniformity with a definition that is in the Freedom of Information Act. I am just putting that on the record.

Mrs BRONWYN BISHOP: I think we have a unity ticket here: Daryl, me, Professor Costar, Senator Ryan.

CHAIR: It has taken 22 years!

Mrs BRONWYN BISHOP: We all agree. This is a worry.

CHAIR: I know what you are trying to do, but I am just wondering whether we can flesh out a bit more how big the problem is.

Senator RYAN: There is a benefit to anachronistic terms, which is that their meaning is usually quite certain. I note that in Professor Costar's submission he talks about language like this still being in certain American electoral acts. That is partly because of there being a degree of certainty around it. I am less concerned by the need to update the language, but I take the chair's point about how big this problem is. What is the problem we are trying to address, given that there is a risk, even if it is inadvertent, of somewhat expanding this exclusion?

CHAIR: As I said, the nub of the problem is I can see this having some applicability in nursing homes and a lot of people getting wiped out. Ms Bevan, I know I am probably not in sync with you in terms of the language, but my concern is more with people's entitlement to vote.

Ms Bevan : If I can make another couple of points, I agree with quite a lot of what Professor Costar was saying and also about the issues that you have raised, which would be very significant for us. There are another couple of points related to that. If you have different professions who are going to be able to give these opinions, how is there going to be any standardisation in how those professionals come to their conclusions?

Do any kind of guidelines need to be written to advise these different types of professionals how to come to these opinions, and who is going to do that?

Secondly, how long will these opinions or medical certificates last? Will they just be relevant for one particular election or will they go on until they are appealed or revoked at some point? Will they be time bound at all? Also, how would the application of this whole process of somebody coming to an opinion on somebody's capability to vote be standardised across jurisdictions? It seems to me that there is a huge potential for this provision to become way too broad, which I think is what you are referring to.

CHAIR: That is what I am saying.

Ms Bevan : I think the reason that has occurred is that the intention behind changing these words is to ameliorate a section of the community which wants a change of the words and, in changing the words, you have to start looking at the whole provision. I do not think the intention is there to look at the whole provision, which is why it becomes difficult.

Mrs BRONWYN BISHOP: Thank you very much.

CHAIR: Mr Killesteyn?

Mr Killesteyn : The sorts of issues that have been raised about consistency and standards are the sorts of issues we are currently dealing with. People, and particularly doctors, are making assessments in relation to 'unsound mind', and there is no standardisation that we currently offer in that regard either. This is an attempt to deal with one of those small—and I cannot give you the number, Senator Ryan, of cases, but it is a regular—

Mrs BRONWYN BISHOP: Could you take it on notice and come back to us?

Mr Killesteyn : We will try, Mrs Bishop. It is a regular source of complaint from people, particularly parents, who see the term 'unsound mind' as particularly insensitive.

Senator RYAN: To be fair, is the concern one of sensitivity to language—is that what we are talking about?

Mr Killesteyn : I think so, and generally you will see that the legislation is being modernised in many respects to take away these sorts of terms and to rely on a third party such as a medical practitioner to make the judgment. These people are selected based on the Freedom of Information Act but, as I understand the genesis of that, it is about nominating a group of individuals who have a particular relationship with the individual and can make that sort of judgment. But I accept the sorts of issues that you have raised.

Mrs BRONWYN BISHOP: In what context does the Freedom of Information Act 1982 use 'qualified person'?

Mr Pirani : It is used when you have personal information about an individual, they have put in an FOI request to get access to that information, and you propose to release it because it is personal information about that person but you have a concern that releasing it to them on their own may cause them further harm or damage. I used to work in the Commonwealth department of health, and often the issue was releasing psychiatric reports that were done by the Commonwealth medical officers. The process in the FOI Act was that an individual could nominate a treating practitioner. 'Practitioner' in the FOI Act was a wide term, and that is the way it is being used here. You would release it to the person nominated by the individual, who had a relationship with the individual and would be there to treat them et cetera. If there was any potential harm in releasing the document, that nominated person would be right on the spot to deal with it and to minimise any harm.

CHAIR: But there is no evidence to suggest that, if we, for instance, reduced the class of persons and just made it a medical practitioner, that would not be sufficient for your purposes. Why do we need to change it to a social worker or a psychiatrist?

Mr Pirani : The reason we were looking at other health professionals was that we did not want to put an impost on individuals or their families by requiring them to go to a medical practitioner, particularly if they had already a relationship with a psychologist, a psychiatrist or a social worker. We are talking about cognitive capacity, not necessarily diagnosis. So we are talking about something that can change over time—the issue that was raised by Ms Bevan.

We recognise that a person's cognitive capacity can change over time and therefore we wanted a process that was going to be relatively inexpensive, that was still going to have some security about it and in which the opinion was still going to be given by either a health professional or a paraprofessional who the person had a relationship with.

CHAIR: I am interested in the numbers.

Mr Rogers : Just on a point of accuracy, Ms Bevan is a member of the Disability Advisory Committee for the AEC, which I chair. I want to pick up on the issue of language just for the sake of the recording. That Disability Advisory Committee meeting, which we had relatively recently, had a very strong feeling about the use of the term. It was more about the term than about other issues, but it created a huge issue. It is quite a broad group of disability committees and there is a very strong feeling about that within that community.

CHAIR: My suggestion is that you take the term out but you still restrict it to 'medical practitioner' and not the other classes of persons. Would that address the concern? I am interested in that as an option. So the term could come out, but it still remains, notwithstanding the cost, with a medical practitioner. I am sorry; I am just not comfortable with a wide range of services. I put this on the record: I have a legal background from before I came into parliament, so I know each of these categories quite intimately and I understand their strengths.

Prof. Costar : I will first declare an interest: my wife is a social worker. I want to come back to the phrase 'unsound mind'. I know that it is offensive. This has been reported not just to your committee but to many state committees. I think the commissioner mentioned that the parents of children are particularly offended by it. I accept all of that. I am worried, though, as to why the Electoral Matters Committee in Victoria acted on that legal advice. We are in a bit of an uncertain area. I refer to our footnote 16: it appears that there is going to be a legal case mounted in Victoria by a person who was an involuntary patient in a psychiatric institution who claims he was wrongly denied a vote at the last state election in Victoria. That may be interesting.

At the risk of breaking up this wonderful unity ticket, Senator Ryan said he was attracted to the phrase 'unsound mind' because it is specific. I am not attracted to it; I am repelled by it, for the reasons that I mentioned. But in terms of a legal situation I think it is to be preferred on the grounds that no-one knows what it means, which then, given that we are acting in what is a benign regime, means that when you put that together it probably achieves the purpose that is needed. We say in 4.10 that there probably does need to be some exclusionary clause in the act to comply with sections 7 and 24 of the Constitution—that is, the capacity of a person to choose. We are arguing—and I think it is an important argument—about having a regime that deals with the actual problems but does not transgress the rights of people with various disabilities—and, of course, that includes transgressing their sensitivities and the sensitivities of their carers. I think it is not an easy problem to solve.

Senator RYAN: I want to correct the record. I think I said, Professor Costar, not that I was attracted to it, but that the phrase had some benefits, although I am happy to be corrected on that.

Prof. Costar : I am sorry.

Senator RYAN: Just looking at the amendment now, it strikes me that the phrase that 'by reason of being unsound mind', as opposed to 'in the opinion of a qualified person' or 'in the opinion of a medical practitioner', means that a person who objected to being classified in such a way that would deny them their vote can challenge this because there is a legal meaning to the term 'unsound mind'. There is a history to it. With that term the substance of this issue can be tested in a court more easily, as opposed to the substance of whether or not there was a certification by a medical practitioner that they were incapable of doing it. Given that we do not have a problem with people who might be classified as such, no matter how they are described, it strikes me that if we are moving from a phrase that can be tested legally by someone—as you pointed out might be happening in Victoria, Professor Costar—to a statement of fact that in the opinion of a qualified person another person is incapable of voting then we might be inadvertently broadening it.

Mrs BRONWYN BISHOP: I would add a point there on the question of sensibility. It is very difficult for me to think that getting an actual formal statement that someone is incapable of voting and having it in absolute black and white is less offensive than having a provision of 'unsound mind' which, as Senator Ryan has said, has a legal meaning. The difficulty we are looking at is this. We are making a discrimination against people who we hold are not capable of making that decision. What the act has to do is find a form of words to do that. Is it more or less offensive to require that of somebody—and with no disrespect to your wife—someone like a social worker, who simply writes out, 'This person is incapable of voting' or 'incapable of being enrolled'? As a parent I think I would find that perhaps more offensive.

CHAIR: I think it is a very live issue, as you can see, for the committee and we will try and work it through with the assistance of some discussion and some further submissions from you as to the extent of the problem, so what we are actually dealing with, and whether we are using a sledgehammer to crack a walnut here.

Mrs BRONWYN BISHOP: Let us go back to the wording of the minister's speech. It says:

The amendments in this bill replace the outdated reference to 'unsound mind'—

well, it is not outdated; it is really about sensitivities, isn't it?—

with a non-judgemental requirement—

Well, I do not think you can say it is 'non-judgemental', because someone has to make a judgment and give evidence of that in writing that this person is incapable of voting.

CHAIR: I want to go to Senator Rhiannon. She wanted to ask about an enrolment matter. Then I will come back to you, Mrs Bishop, to continue.

Senator RHIANNON: This is to the AEC and probably Professor Costar too. I would be interested in any comments. There are two big changes with regard to the amount of money that needs to be paid and also the number of electors that will need to be found by unendorsed candidates. I would be interested in to what degree you think this will impact on the number of candidates who will nominate. It is considerable, particularly for a group of six, that they would need to find 600 unique electors. I guess if we had a double D that could well be 1,200. So it is a considerable shift from the current 50 electors. Do you think that while we have this mechanical and technical issue, as I suppose you could say it is, in terms of the ballot paper—and there is also the issue of the right of people to run—we are getting the right balance here?

Prof. Costar : I would agree, Senator, that it is a question of balance. I have a natural inclination to use less of the monetary barrier and more of the nomination barrier. I think people who are going to run for parliament—whether it is the Senate or the House of Representatives or state parliament or whatever—should be able to show—and this is pretty commonplace around the world—that they have a degree of nominated support. Now we could argue backwards and forwards about what the number is. For example, in our submission we suggest that we double the proposed number of nominators for the Senate on the grounds that the Senate electorate is obviously much bigger than a House division. I think you are right about balancing rights. We have to balance rights against having people run for parliament. We also have to use the research knowledge we have got to protect the franchise of those who seek then to vote. I use the example in our report of the upcoming by-election in the Victorian seat of Melbourne. I am using it simply because it is contemporary. There are 16 candidates. Only two of those candidates have a reasonable chance of victory. One of the people describes himself as a serial candidate. He has run 20 times since 1996 and has lost his deposit every time. What will be the effect of these 16 candidates? You do not have to have a crystal ball to be able to predict where the highest informal vote in Melbourne is going to be. It is going to be in the western end of the electorate, around Kensington and Moonee Ponds. Why? Because there is a higher proportion of people whose first language is not English. We know that when you combine that with multiple names on the ballot paper you will get people voting informally accidentally. So it is a balance. We have got to remember what effect these multiple names on the ballot paper actually have.

Senator RHIANNON: Thanks. We will go to the AEC and then I would like to go on to the money issue.

CHAIR: Senator Ryan has a question before I come back to you.

Senator RYAN: Professor Costar, while it has some immediate short-term attractions, if we had taken a view 20 years ago that people who had run and only got one or two per cent of the vote lost their deposit by being below that, we might not have some of the minor parties we have today. While I am generally in favour of the measures as proposed, and I particularly appreciate the problem of the New South Wales Senate ballot paper, don't you think that a problem with your proposal might be that—and I think I know the serial candidate you are referring to—we do not know what the electoral situation is going to be in 10 or 15 years?

Prof. Costar : Again, you are quite right: it is a question of balance. You do not want to stifle genuine representativeness. But remember, as to that person, it is not comparable to the minor parties that you might be thinking about. It is not that he has run once and then won; he has run 20 times and has lost his deposit, as I understand it, 20 times.

Senator RHIANNON: That does happen rarely. It is like we changed the legislation after the Bradfield election when I think 20 or 20-plus candidates ran. For these individual cases, which are fairly exceptional, should we be changing legislation to such a degree, considering the future of the democratic process does need to be protected? Do we run a risk of putting in limits that will have unintended consequences?

Prof. Costar : I agree with you. We have to be careful. The problem really, consistently, is in the Senate. Remember that what we were facing here was a by-election. We know why that has happened. But I can give evidence from personal example. I almost cast an invalid vote in the Senate in 2007. I pre-poll voted, because I was working on the election day on a survey, and I had to fold the Senate ballot paper—and this is in Victoria, not New South Wales—in order to fill it out. Fortunately, I double-checked and I had missed an entire column in the middle of the ballot paper, because I always vote below the line. So, really, we do have some problems here with the Senate ballot paper.

Senator RYAN: It would not have mattered in Victoria because, if I recall correctly, one column would still have kept you at over 90 per cent. My question, though, is: if you are concerned about informal voting—and you have expressed that on a number of occasions before this committee—and without getting into a long discussion of it, do you support or oppose optional preferential voting, which would probably be—

CHAIR: Hang on; that has got nothing to do with—

Senator RYAN: It is a question about informal voting and it is a yes or no answer; I am not going to go any further. Do you support optional preferential voting? Is that regarded as possibly the easiest and quickest way to cut down on the number of informal votes?

Prof. Costar : I co-authored a book in 2006 on electoral methods and said that I supported optional preferential voting.

Senator RYAN: Thanks.

Senator RHIANNON: Chair, could we just move on to the issue about the money? Maybe we could start off with the AEC. Has there been any consideration given to the issue that the increase in nomination fees to $2,000 and $1,000 in the House of Representatives would make it harder for many people on lower incomes to participate in elections?

Mr Killesteyn : The only comment I would make is perhaps by contrasting the original nomination fee when the act was first created in 1905. We have set that out in our submission. The nomination fee at the time was £25. I have just done some quick research this morning. The average weekly wage in 1905 was the equivalent of $4.35, or around $220 in today's terms. So I think what I am suggesting is that, at the time, when the act was first created, there was a fairly significant amount of money, and the amount of money that now is the nomination fee is not keeping up. If, as to the act then, in 1905, parliament in its wisdom said, 'It is a serious commitment that you are making, and you have got to show that serious commitment by the amount of money,' then maybe that same philosophy applies today.

Senator RHIANNON: But also, that was 1905. Your figures are certainly very interesting in terms of equating the sum of $25 to about $3,000 today, but we have made progress in 100 years. Aboriginal people can vote and we have addressed many aspects of this law to expand and enrich our democracy in many ways. I would hope that many of us would agree that dropping the barriers—one of them being monetary—to allow more people to participate is important. I suppose it concerns me a little bit to use those figures. Has any consideration been given to the fact that this increase, a doubling, will discriminate against those on lower income?

Mrs BRONWYN BISHOP: I am more sympathetic to the increase in the nomination fee if it is related to helping to pay for the electoral system. I am less sympathetic if it is trying to discourage people from nominating. Personally, I have no problem with the man who nominated 25 times. It is his right and it is a free country to do so. If it is to try to dissuade people from nominating, I am less sympathetic than if it is an amount of money that is considered reasonable to participate and pay for the electoral process.

Mr Killesteyn : This is where the issue of balance comes in. We have already discussed it, but we are reaching a point where, if the candidates increase in New South Wales with the restrictions that we have on the size of the ballot paper, the type size will become so small that it will cause considerable difficulty. You can already see, as we have shown—I think it was in our submission—the balance between people voting below the line and those voting above the line is quite different in the larger states and the smaller states. I think part of that is because of the complexity. You also see—

Senator RHIANNON: Those figures, which I think are on page 17, are again useful. With Tasmania and the ACT, don't we largely attribute that to the fact to that those people understand proportional representation and therefore find it more understandable to vote below the line?

Mr Killesteyn : In the ACT, I think in 2010, there were nine candidates for the Senate. In New South Wales there were 84.

Senator RYAN: What font size is the current New South Wales Senate ballot paper?

Ms Neilson : Eight point five.

Senator RYAN: Eight point five font—which is smaller than tabloid newspaper print?

Mr Killesteyn : Yes, it is. And it is also causing us to do some interesting things with respect to the way in which names are presented. Sometimes you have to wrap around the names, and that is offensive to some candidates in the way in which the name can be presented.

Mrs BRONWYN BISHOP: But an interesting phenomenon has developed in minority party and minority individual voting, and that is that, once upon a time, minority parties would maybe swap preferences with one another and then they would preference a large party. They do not do that anymore; they are smarter. They now preference each other to the extent that you can get somebody elected with a primary vote of one point six. In considering the number of people who nominate, I think you have to consider that the way in which the current system works is being utilised by people who understand it better now.

Mr Killesteyn : I accept your point, Mrs Bishop, but that is not what these changes are about. This is primarily increasing the fee. Yes, it would obviously have an impact, potentially, on the number of people who nominate for candidacy. If it does not, then we have another problem with the size of the Senate ballot paper—

Mrs BRONWYN BISHOP: Maybe it has to be two pages.

Mr Killesteyn : and that is the balance issue about what are the results in relation to formality—

Mrs BRONWYN BISHOP: It adds to the cost, which is why I say I am more sympathetic to—

Mr Killesteyn : The cost of an election is $110 million. I do not think we are going to recoup that from the candidates.

CHAIR: What is the cost of House of Representatives by-elections? They are over $200,000 these days for the commission, let alone for the political party, so what we are dealing with here is a cost, in my opinion, in terms of a deposit for someone who is running for high office, that I think is reasonable. I have said this before: in my first campaign in 1990 my campaign costs were $20,000. The last couple have been over $200,000.

The other point—and I just want to put this on the record—is that there have been a number of studies that have shown, where there has been ballot stacking in the House of Representatives and in the Senate, that it has affected the formality of the vote and informality has increased. The classic was the Werriwa by-election. The Bradfield by-election had the same political party repeating the nomination of a number of its candidates, which is why we changed the rules. So let us not be naïve here. I am just putting this out there; people can disagree with me if they wish, but I do not think this is over the top.

Senator RHIANNON: It is not over the top but there is a real challenge for us in the balance.

CHAIR: Sure.

Senator RHIANNON: For newly emerging parties, micro parties and some of the minor parties, we could be looking at, say, 12 Senate candidates in a double dissolution, which is 24,000. Obviously it is 12,000 in the elections that we have most of the time. Okay, you do not have to run all those candidates, but many of the smaller parties realise that if they have all those candidates they look more substantial on the ballot paper. So for those newly emerging parties, these measures are making it harder and harder for that diversity to still be a part—

Mr GRIFFIN: Or harder and harder for them to look substantial—because they are not.

Senator RHIANNON: Well, yes, I know, but everybody starts from somewhere, Alan. That is where I think this is a real challenge for us. For the bigger parties, that is how it is and you can just keep going. But if we do have that commitment that the democratic process should be open to people to have a go, this is a hard one. At the same time, I understand what Daryl just said. I am in New South Wales; I know what happens.

CHAIR: I will just finish my anecdote. My first election was the 1974 election, where over 70 people were put on the Senate ballot paper and where two Independent aldermen from Bankstown engineered 20 nominations for the Senate to undermine the ballot that took place in the Senate, with substantial consequences. So we need to look at it from both angles. I respect totally where you are coming from, Senator Rhiannon.

Senator RHIANNON: Yes. So you do not misunderstand me, my first election was in 1999, which is known as the tablecloth ballot paper in New South Wales, where there were more than 80 parties standing, largely engineered by a couple of people to do what was called a round robin for the micro parties. So I am well aware of how serious this is but, at the same time, in dealing with it I think we have really just got to keep reminding ourselves not to swing too far the other way.

CHAIR: Yes, I hear that. I will get you to finish yours so I can go to Mrs Bishop.

Senator RHIANNON: I am finished now. Thanks very much, Chair.

Mrs BRONWYN BISHOP: I want to go back to the processing of PVAs. What is the average turnaround time presently with the current system of receiving the application and getting it back to the voter?

Ms Neilson : It depends. We have a service level standard with our contractor of about two days between us giving them the data from APVIS and having the postal vote certificates lodged with Australia Post.

Mrs BRONWYN BISHOP: This change to the provision of a person rather than an elector is—in the words of the minister:

The first policy change is that a 'person' rather than an 'elector' may make an application for a postal vote. This means that the electoral commissioner can issue the postal vote package in a timely way without assessing—

without assessing, I stress—

the applicant's entitlement to vote at the issuing stage.

How much time is that going to save?

Ms Neilson : Not doing the preliminary scrutiny at the issuing stage is at the moment what we do; this is just regularising current practice.

Mrs BRONWYN BISHOP: How much time is it going to save? Do you mean you are already doing that?

Ms Neilson : We are already issuing unmatched postal vote certificates to a small proportion of electors, yes.

Mrs BRONWYN BISHOP: So there will be no time saving at all.

Ms Neilson : No.

Mrs BRONWYN BISHOP: Because you are already doing it under the existing legislation.

Mr Killesteyn : I think one needs to reflect on the fact that we estimate that the number of postal votes will increase again in the next election, and unless we continue with these more efficient processes then we will reach a point where there will be delays in issuing the postal vote certificates. We are on a natural inexorable growth of postal vote applications and we cannot deliver the services to the electors unless this process is in place.

Mrs BRONWYN BISHOP: But it is already in place?

Mr Killesteyn : And it has been for a long time. You can see the growth—

Mrs BRONWYN BISHOP: In 1999 this was accepted under the act.

Mr Killesteyn : Yes, it was.

Mrs BRONWYN BISHOP: The minister goes on to say:

This change does not necessarily mean that the person's vote will be counted. Once the completed postal vote certificate is returned to the electoral commissioner the person's eligibility to vote will be ascertained before including the ballot papers in the count in the weeks following polling day.

So that is already the practice.

Ms Neilson : Yes, that is right.

Mr Killesteyn : That is correct.

Mrs BRONWYN BISHOP: And the 1999 advice said that is acceptable under the current legislation.

Mr Killesteyn : Yes—subject, of course, to the concerns that have been raised in some of the more recent cases that we have had to deal with, particularly at the last election, about the postal vote system. So, while that was the 1999 advice, more recent cases are suggesting that this is an area that needs to be cleaned up.

Mrs BRONWYN BISHOP: Let's go to the McEwen case.

Mr Killesteyn : Is this at the 2007 election?

Mrs BRONWYN BISHOP: Indeed. Could you quickly outline for me the criticisms made by the High Court of the current system?

CHAIR: It was not the High Court; it was—

Mrs BRONWYN BISHOP: The Court of Disputed Returns.

Mr Killesteyn : That was in relation to the admittance of votes, not the postal vote application system, as I recall.

Mrs BRONWYN BISHOP: Were any of those votes postal votes?

Mr Killesteyn : I do not know.

Mr Pirani : We would be unable to tell, Mrs Bishop, because under the scrutiny process, after they have opened the envelope that has the ballot papers in it, the officer is required to remove them from the envelopes and put them in a ballot box, so when you are counting the ballot papers at the end there is no distinction between what was a postal vote and what was a normal vote. There were 643—or it might have been 641—ballot papers reviewed in the Court of Disputed Returns decision in Mitchell and Bailey, and I do not think we are able to say how many of those were postal votes.

Mrs BRONWYN BISHOP: So we can soundly say that the Commonwealth and Bailey case did not in any way prompt this legislation.

Mr Pirani : No, it did not.

Mrs BRONWYN BISHOP: Did somebody say there is a current case?

Mr Pirani : No. We said there were four cases involving the Fred Nile Christian Democratic Party after the 2010 election that raised issues about the postal voting process—

CHAIR: I should declare that I was one of the recipients, but they folded on me first.

Mr Pirani : There was also an issue about the postal votes in Rowe and the Commonwealth as well about the process of sending out postal vote certificates after receiving postal vote applications.

Mrs BRONWYN BISHOP: Yes. Going to the Fred Nile case, I do not think it had any legs at all, ever, and I do not think we need to consider that either. I do not think that prompted any of this legislation.

Mr Pirani : It raised the issue of the risks relating to the postal voting process that we had a look at—in particular those relating to sending out a postal vote certificate to a person who is not on the roll. That is one of the changes that is here. The argument is that, because at the moment you can only send a certificate to an elector, if we send one out to a person who we have not confirmed is on the roll that is a breach of section—

CHAIR: But the main basis of their case was that the political parties had processed these applications. That was rejected, and that is not in front of us today.

Mr Pirani : Again, that was in the people's case. In the Rowe case there was an issue about the process under which we were sending out postal vote certificates. It was one of the issues that we had to put in an affidavit to the court on, and it was one of the processes that were being looked at. We had legal advice during the court proceedings in relation to that process.

Mrs BRONWYN BISHOP: Did you give evidence at that time that you were checking to see that someone to whom you sent one was entitled to be enrolled, and that was the interpretation? Is that what you said?

Mr Pirani : I would have to recall what was in the affidavit. I would have to take that on notice.

Mrs BRONWYN BISHOP: You might come back to us.

Mr Pirani : But it did highlight the issue that, at the moment, with the use of the word 'elector'—which is defined in section 4 as being a person who is on the roll—if we are not checking whether they are on the roll at the time we are sending out the PVC there is an argument that we are not complying with the act.

Mrs BRONWYN BISHOP: Okay. So we could argue that all we really needed was an amending act that changed 'elector' to 'person', and that would have cleared up any of the things that any courts had raised as being difficulties.

Mr Pirani : Certainly that would clear up one aspect of it, but the other aspect was, again, in our submission to JSCEM and was included in your 2010 report.

Mrs BRONWYN BISHOP: Not mine. You mean the Labor Party and the Greens.

Mr Pirani : The committee's report.

Mrs BRONWYN BISHOP: The Labor Party and Green majority.

Mr Pirani : We wanted to make sure all the processes were being correctly reflected in the act so that we had no issue with our administrative practices being at all argued to be different to what was in the act.

Mrs BRONWYN BISHOP: With respect, that is what I call 'woolly words'. The bottom line is that the evidence you have given us today is that you are doing exactly what is contemplated under this new act and nothing will change except that you will remove any doubt about being able to send out the PVAs or the postal vote certificates to any person. That will overcome any difficulty there. As for the rest of it, it will change nothing, and under your 1999 advice that was just fine.

Mr Pirani : Again, it does change the process in relation to the involvement of DROs being the primary people responsible for dealing with this, so now it can be broadened to any other delegate of the Electoral Commission.

Mrs BRONWYN BISHOP: How many more delegates are you going to make?

Mr Pirani : I am not aware of the actual planning of that.

Mrs BRONWYN BISHOP: The commissioner will be.

Mr Pirani : I notice that when we did do it for enrolment functions in 2010 we had the majority of officers in the AEC. Of course, when you do delegations now, you do not necessarily identify the position; you identify the level of the officer who would do it. I would imagine we would be doing it to a similarly broad class.

Mrs BRONWYN BISHOP: So how many more delegations?

Mr Killesteyn : The delegations will go to each DRO, because the whole system still contemplates that postal vote certificates will be issued manually—

Mrs BRONWYN BISHOP: By the DRO.

Mr Killesteyn : by DROs. So I have to give that delegation to all of the current DROs, notwithstanding the fact that the majority of postal vote applications are dealt with centrally.

Mrs BRONWYN BISHOP: So nothing is going to change.

Mr Killesteyn : We have made the point that this legislation—this amendment—is to reflect current practice, and we think it is important—

Mrs BRONWYN BISHOP: But you had advice that it was not necessary.

Mr Killesteyn : Thirteen years ago. We think it is important that the act reflect what is a necessary practice in relation to the centralisation of postal vote application processing systems. In the absence of the change, arguably we would have to not do the sort of centralised processing that we have.

Mrs BRONWYN BISHOP: I will just ask you one last question, and that is in relation to the question of 'unsound mind' again. The minister says:

The inclusion of the words 'unsound mind' in the Commonwealth Electoral Act generates considerable concern in the community. General practitioners advise that they are not qualified to say whether somebody is or is not of 'unsound mind'. Such inappropriate language is both unhelpful and misleading.

Could you give me details of evidence that there is 'considerable concern in the community', and could you also give me numbers of general practitioners who have said that they are not qualified.

Mr Killesteyn : I will take that on notice.

Mrs BRONWYN BISHOP: I have one last question: can you give me an undertaking that nothing in this legislation will lead to an increase in the cost of administering the election?

Mr Killesteyn : Nothing in this legislation will lead to an increase in cost in administering this election.

Mrs BRONWYN BISHOP: Thank you very much.

CHAIR: Before I close this public hearing, Ms Bevan, do you have anything else you want to add?

Ms Bevan : No, I do not think so. Thank you.

CHAIR: Professor Costar?

Prof. Costar : I am sure that your staff have already thought of this, but it might be useful on the 'unsound mind' to ask the Victorian Electoral Matters Committee if they would provide you with the legal advice that they received, which is referred to on page 82 of the short appendix that we put in our submission.

CHAIR: Thank you for that. We are looking forward to some further contributions on that. I think it is no secret that it is a live issue, as far as the committee is concerned, to get the right balance.

Mrs BRONWYN BISHOP: Also, I have one last question. I wonder if we could have a copy of the drafting instructions of this legislation.

CHAIR: I do not know whether we are entitled to them or whether they fall—

Mrs BRONWYN BISHOP: I am asking.

CHAIR: I know you are asking.

Mr Pirani : My understanding is that the normal process is that drafting instructions are normally categorised as cabinet in confidence.

CHAIR: Yes.

Mr Pirani : I would need to take that on notice and seek instructions from the minister.

CHAIR: Take it on notice, but that is my understanding. I thank everyone for their attendance today. As I said, if you have additional material, it would be appreciated if you could give it to the secretariat as soon as possible.

Resolved (on motion by Senator Ryan):

That this committee authorises publication, including publication on the parliamentary database, of the transcript of the evidence given before it at public hearing this day.

Committee adjourned at 12:10