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Conduct of the 2010 federal election and matters related thereto

CHAIR —Welcome. Mr Tully, before I invite you to make an opening statement, can I ask you, for the record, to give your history in terms of electoral involvement—the previous positions that you have held—so that the expertise that you have can be fully appreciated in terms of the evidence that you give.

Mr Tully —My experience in electoral administration goes back to when I turned 18—it is a long time ago; I cannot even do the math—when I undertook various roles on a casual basis including, in the latter part of that time, as a district returning officer in South Australia. I had a career in the South Australian Public Service, which covered areas such as the Public Service Board and its various subsequent names; the Department for the Arts and Cultural Heritage and the South Australian mental health services. Following an assignment with the mental health services I was appointed Deputy Electoral Commissioner in 1995. I was appointed South Australian Electoral Commissioner in 1996, and in 2005 I was appointed as Victorian Electoral Commissioner.

CHAIR —Ms Williams, do you want to give your background in terms of electoral involvement?

Ms Williams —Just briefly. My electoral background goes back to 1992, when I joined the Victorian Electoral Commission as a returning officer, and in various roles at the Victorian Electoral Commission. In 2005 I was appointed Deputy Electoral Commissioner and have held that role since then.

CHAIR —Did you wish to make an opening statement?

Mr Tully —Chair and committee members, good morning. I have already introduced the Deputy Electoral Commissioner who will assist the inquiry today and we hope that we are able to assist you.

On 3 August 2010 the Victorian parliament passed legislation on a number of things, including the abolition of the three-month rule, provision for automatic enrolment of people on the Victorian Electoral Commission’s initiative, provision for the enrolment and voting on election day and at pre-poll centres, and provision for electronically assisted voting in certain voting centres for an expanded franchise. This resulted primarily from the Victorian government parliamentary committee on electoral matters majority reports. That committee investigated concerns about falling participation rates. The package of reforms is integrally and intrinsically connected and, in short, means that every citizen over the age of 18 in Victoria who attends a voting centre in Victoria has the ability to vote.

If a person were on the roll for a particular address, they were given the vote for the corresponding electorate and if they were not on the roll at all, but claimed to be eligible, they signed a declaration envelope and either produced prescribed proof of their identity or expressly gave permission to have their identity checked with the prescribed authority.

I need to emphasise, at an early stage, that electoral authorities are cautious and careful organisations that are naturally averse to risk and error and only people who satisfy strict business rules will be automatically enrolled or have their enrolment changed. A high quality electoral roll is essential for redistributions, be that at local, state or federal level. It provides a level of protection against fraud and provides for legitimacy—real and perceived—in electoral outcomes. Despite considerable efforts by administrators, the evidence of a decline in the quality of the electoral roll over the last 10 is self-evident, and that can be seen as a real risk to the perceived legitimacy of electoral outcomes. The Victorian parliament recognises those risks and put strategies in place to address them.

The Victorian Electoral Matters committee has commenced its inquiry into the 2010 state election and I have met with them at a preliminary hearing. I perceive that the committee will take a close interest in a number of matters, but particularly I sense their interest is in the significant increase in pre-poll voting—particularly pre-poll voting in person—informality rates, electronic voting, and access to voting centres by people suffering physical disability and those who are experiencing life in a wheelchair. They had a particular interest in the VEC’s programs for those groups who are clearly underrepresented in the electoral process and also in the VEC’s reconciliation processes, which were comprehensive and posted on the VEC’s website at the conclusion of the count processes.

I would be pleased—and I am sure my deputy, Liz Williams, will be pleased—to respond to any questions that the committee may have and we will be delighted if we are able to assist your inquiry.

CHAIR —I will ask a few questions then hand over to my colleagues. I am interested in your automatic enrolment, or election-day enrolment. How does that compare with New South Wales? Are there any differences in terms of the way Victoria does it as against New South Wales? What are the pros and cons of those differences?

Mr Tully —Basically, the intention is the same. We will be looking to work with the Australian Electoral Commission on getting our state-only electors on the national roll and we will be working on processes that are as simple as possible to comply with, whereas I believe that the data mining and the data interrogation that New South Wales are undertaking is probably has a greater penetration than ours will have.

The basic fundamentals are the same. Like the Australian Electoral Commission, we know, from other data sources, where most people on the move are but we are all suffering from the syndrome of non-compliance to various letters by people who are on the move. Such people used to respond at rates of around 30 per cent but now respond at much lower rates—and the trend is continuing. For school leavers, for example—taking the cautious approach that I spoke of—we received data from our secondary schools assessment authority, which had recency because that was where the results and other information and correspondence was going to go. We checked that data against the Victorian Registry of Births, Deaths and Marriages to ensure that they were born in Victoria, and therefore we knew they were real people. They were attending a school and they were born in Victoria so we knew they were Australian citizens. We wrote to them telling them that they were on the roll and they had 14 days to let us know if we had got it wrong. We received no correspondence that I can recall from anyone saying that we got it wrong, due to the safeguards that we had in the process.

I might also add that we did not enrol people who had parents or other people living at an address with a silent elector status. We did not enrol anyone who used the school as their correspondence base, because of real concerns about violence in the community and protecting students and their parents from a privacy invasion. That proved a successful way of getting a couple of thousand young people on the roll. My understanding is that we are monitoring how many of those are coming onto the federal roll. So far the percentage is about 20 per cent, which is what you would expect if you leave everything unregulated.

CHAIR —How prolific was election-day enrolment at the last election?

Mr Tully —Election-day enrolment was in line with our expectations and we were staffed to do that. In 2006 we took around—I will use round figures—40,000 unenrolled provisional votes, and a very small percentage of those counted. There were 2,617 counted. In 2010 the election followed the federal election so it was not surprising that the numbers were slightly down. We took 34,500 provisional unenrolled votes and, of those, 29,272 counted. My understanding is that all of those enrolments, which could have been lost to the system if they had been simply turned away and told they were not on the roll, were passed onto the AEC, who have placed them on the federal roll.

CHAIR —Can I just go to those particular figures. Are you able to say how many of those people were people who had been taken off the rolls—in terms of the old reinstatement provision—as against fresh enrolments of people who had not previously been on the roll?

Mr Tully —No, we have not done that level of research yet. We will, but I know anecdotally that there were a number of people who had not been on the roll for 15 years or so that we picked up through this process. They had just kept bouncing along having a provisional vote at federal and state elections, and nothing happened; their vote just did not count.

CHAIR —The ones I am actually interested in are those that our committee looked at in the last parliament when they looked to reinstate earlier provisions that had been removed, where if people had been on the roll within a particular period of time and had been taken off because they had not responded, they could be reinstated.

Mr Tully —We are doing that sort of work for our own committee and I will make sure that that information is passed on to you as soon as we have passed it on to our own committee.

CHAIR —What I would suggest is that they fit into a different category than people coming along and enrolling for the first time—people who have turned 18 or moved into the area afresh.

Mr Tully —Yes, and you indeed might be quite correct. The only point I can make is that there were nearly 35,000 enrolment forms received and processed because the application doubled as an enrolment form, and most of them counted.

CHAIR —All I am saying is that, just off the top of my head, given—

Mr Tully —You are asking: is there another way to skin the cat? I understand what you are asking.

CHAIR —Is there another way to skin it? I just need the figures for the committee so we can have evidence. Are you looking at, in effect, the potential divergence from the Commonwealth roll and the Victorian state roll as a priority to try to make sure that that divergence is as little as possible?

Mr Tully —There is no stronger supporter of the electors than me and I do not want to be putting the electors to an inconvenience through filling in two forms or getting confused by processes. That is why we went to some effort to ensure that the form we designed for provisional voters in fact met the AEC requirements most of the time—we had a drivers licence and a photo—so that clearly reduced the divergence. There could have been a large divergence there.

School leavers worry me. I think they will continue not to fill in forms and enrol with their feet, so to speak, by not filling in the form. I expect that there will be divergence at that level. It is a sad case that we send out enrolment forms saying, ‘Well, you are enrolled for state purposes but you need to fill in a form for Commonwealth purposes.’ I do not believe it reflects well on the electoral industry.

CHAIR —Is it possible to have a line or a box that they can tick so that in effect their consent is being obtained to get them on the electoral roll? It seems to me that if they are enrolling at a state level there could be an extra line that goes the extra yards.

Mr Tully —Absolutely. We will work as hard as we can with the Australian Electoral Commission to ensure that the divergence is at a minimum, but I think you can see that with response rates as they are it is almost inevitable that it is going to occur. I believe in New South Wales it is a slightly different model but with same intent, and the divergence will be much greater in New South Wales.

CHAIR —We are hoping to get figures from them in light of the recent election as well. Without going into other areas, I will turn now to Senator Ryan to ask some questions on this.

Senator RYAN —Mr Tully, I just want to challenge some of the language you are using. You are talking about this using terms like ‘an unregulated environment’, which is where we are at the federal level at the moment. You have said that there is no stronger supporter of the elector than yourself and you have said, for example, that the difference between Commonwealth and state does not reflect well on the electoral industry. I would challenge that because, with all due respect, I am getting very tired of this language that we have to make it almost impossible to not enrol to vote or that we have to somehow measure our success by how many people we conscript onto the electoral roll through the use of technology. It is not that hard to enrol to vote in Australia, is it? Filling out a form is not that difficult.

Mr Tully —I am sorry, Chair, if I have offended your committee. That is the last thing I would want to do.

Senator RYAN —I am not saying I have been offended.

Mr Tully —My language then has offended the committee. My role is to implement the laws of the parliament. The parliament has done that on advice on the trends. I take your point. I also take the point of an article that appeared in the Herald Sun on Monday, 7 March. I assume that it has some degree of accuracy. It talks about a taxing time for battlers and it says:

The complexity of Australia’s self-assessment tax system is also baffling. Many taxpayers are simply not lodging tax returns …

It goes on to say, 4.3 million individual taxpayers have not yet lodged a tax return for 2008-09 and the tax office snapshot was taken in October 2010. That I think is reflective of the general attitude that people have to filling in forms. You may choose to take offence at the issue being pointed out—

Senator RYAN —I did not say I took offence. What I am challenging is this idea that we measure the success of an electoral system by virtue of grabbing people who refuse to or are otherwise unable to, but generally refuse to, answer letters and fill out a form. That is not the only metric by which we can measure the success of an electoral system. I read in the paper this morning that Australia has been rated highly because it is one of the few countries in the world that has had an increase in turnout in the last 30 years. You have other means at your disposal. For example, before this bill was passed, did the VEC at any point decide to use this data to go and actually pursue those in breach of the law by refusing to enrol to vote?

Mr Tully —Yes, we did.

Senator RYAN —How many prosecutions or notes or fines did you send out to people for refusing to enrol?

Mr Tully —I have not got the detail here but it is on our internet site. We decided that we would take a group from the motor registry data right down to the wire on prosecution. We ended up successfully prosecuting six or seven people, who incidentally, to give weight to some of the things you are saying, never enrolled anyway. They paid the fine and said they would do it again.

Senator RYAN —Which they are allowed to do. They will get in trouble if you keep prosecuting them.

Mr Tully —They are. Where we fundamentally come from a different perspective is that I am an administrator of a compulsory enrolment and compulsory voting system. That puts significant onus on me and electoral authorities in providing facilities, means and motivation for that to happen. I take your point, and it is clearly a view that is reflected quite widely, but the fact is that the number of people who are eligible to vote in Australian elections and who vote formally is getting under 80 per cent.

Senator RYAN —That is more a reflection on the people on this side of the table than yours I would suggest.

Mr Tully —It may well be, but it is a statistic that I think I have a responsibility to put before those who make the laws. It might be like the tax office. How many billions of dollars are they willing to forgo in non-compliance before they—

Senator RYAN —You are not comparing filling out enrolment form to a tax return, are you?

Mr Tully —Some people would. Some people would say that form is impossible. I think the evidence is overwhelming. We send letters as well to people who are apparently changing their enrolment. The response rates are less than 20 per cent. The Western Australia Electoral Commission ran a program to people saying: ‘Get on the roll. It is an amnesty. No fines. We will send out the forms.’ They got less than 30 per cent.

Senator RYAN —With all due respect—

Mr Tully —You are asking me and I am telling you anecdotally because we are getting to the community—

Senator RYAN —I put it to you Mr Tully that it is patently ridiculous to compare filling out an electoral enrolment form, which is a DL sized form, to filling out a tax return, which I have trouble with.

Mr Tully —There you go. I do not know what we are arguing about. My people are in the community all the time. They are working with the disabled. They are working with Indigenous communities. They are working with the homeless.

Senator RYAN —I do not think we are talking about those people. To be fair, the automatic enrolment debate is not about those who have serious challenges with filling out the form through a physical or intellectual disability. It is not talking about Indigenous people. We are talking about school leavers and the people you say do not respond to letters. Let us not use a false argument in support of what is about getting fully capable people to fill out a form.

Mr Tully —But, Chair, these are decisions for you, not for me. I am implementing the law as it applies in Victoria.

CHAIR —I suppose the argument is whether we have laws that make it easier to enrol—

Mr Tully —Absolutely.

CHAIR —while retaining the integrity of the electoral roll so that the—

Senator RYAN —The argument here, Chair, is whether we have laws that do not give you a choice as to whether you enrol, and then we enforce that through the use of technology. There is a very big difference between—

CHAIR —Irrespective of that, I suppose your aim, as someone who administers, is to have an accurate roll and a roll that has as many people on it as possible who are eligible to either lodge a vote or lodge an informal vote.

Mr Tully —I think there are some integrity issues there as well. The VEC has quite sophisticated mapping technologies. When you have an accurate roll, you have a good address register. There are two parts to a roll: there is the address register and there is the list of electors. One of the key preventions for fraud is making sure that people are not enrolled in petrol stations, tennis courts, ovals and whatever. With Google maps and other mapping technology, we can check that that address register is correct. That is a good safeguard to people enrolling at false addresses. The other thing is—

CHAIR —So you are using the technology now, which is something that you did not use at the beginning of your career.

Mr Tully —That is right, and in Victoria we are committed to geocoding every enrollable address.

CHAIR —Can you talk about geocoding, for the committee’s benefit?

Mr Tully —There are issues of a continuing nature about how addresses are recorded on any sort of roll or register. Some people who live on a corner have the opportunity of using either street name for that corner. So is it a new address when they just change the street frontage? There is all sorts of vanity addressing that comes into it. What geocoding does is make it unequivocal as a spot on the earth as to what a particular address is. It does not matter how often the names change, rural road numbering changes or whatever; we have the identifiers which are not going to change in a geocode.

CHAIR —Victoria does that now?

Mr Tully —We are working towards it, and by the end of this year we should have every enrollable address in Victoria geocoded. I think we are up to about 95 per cent.

CHAIR —What about the other jurisdictions?

Mr Tully —South Australia is well advanced. Some of them are not so well advanced.

CHAIR —Is that something that you could share with the Australian Electoral Commission?

Mr Tully —Sure, and we have made offers to do that. I think for the first time the Australian Electoral Commission is showing real interest in geocoding.

Senator RYAN —The point I was trying to make earlier, Mr Tully, it is quite frank. In your earlier presentation I detected a crossover from an analysis of what the law was in Victoria to an advocacy of it being adopted at the federal level, which is why I pushed back on some of that language. On this point, I respect that people are not here in your capacity to express an opinion, but there is value laden terminology being expressed about this particular issue as if it is somehow morally right. What I would put to you is that, first of all, difference between Commonwealth and state is not a bad thing. Secondly, there is a reason a number of us pushed back on this. It is a philosophical issue. I do not believe there should be a speed camera on every street corner to stop anyone doing 61 kilometres an hour. There is a legitimate expectation that authorities of the state that want to enforce laws cannot use every piece of technology at their behest, such as to effectively conscript people onto an electoral roll. I got the impression that you were crossing into advocacy of this at the federal level.

Mr Tully —No, that is not my intent. My intent is to clearly and as well as possible point out to the decision makers and the legislators what the trends are and what is happening in Victoria. I am unashamed about this: in any election that I run I want the highest participation rate we can get, whether that be a voluntary election or whatever, because getting more people engaged in the process, I believe, is part of the fundamental nature of our democracy. It requires—

Senator RYAN —Let’s be fair. The point I am making is that that is not an assumption I think you can make about everyone involved in the political process, because it is not an assumption which is universally agreed upon. I do not consider the participation rate or the level of formal voting to be the best measure of an election. In terms of what is happening in Victoria—and if you have to wait for this until you prepare a submission for the Victorian committee, I understand—among those who were automatically placed on the roll, was there a higher level of non-attendance on polling day?

Mr Tully —Yes, there was.

Senator RYAN —How much higher?

Mr Tully —Significantly higher. Out of the sample that we took for the state election, 999 voted and 798 did not.

Senator RYAN —So about 40 per cent, give or take, non-attendance.

Mr Tully —Yes.

Senator RYAN —Have you sent out notices for explanation, and has that ticked over into a fine period yet?

Mr Tully —Yes it has, we have sent out the first notice asking them why they did not vote.

Senator RYAN —When is that due back, before you take the next step?

Mr Tully —The fine notices have just gone out.

Senator RYAN —What number, of that 798, are getting fined?

Mr Tully —Well, I do not know yet because we have not received their responses.

Senator RYAN —I am sorry; I thought you meant that you had received them.

—We have sent out the first notice saying, ‘It appears that you have failed to vote. Have you got a—

Senator RYAN —When you get that data—the number that have come back with an accepted answer versus those that were fined—I would appreciate if you could provide it to the committee.

Mr Tully —Yes, we will make that available on our website.

Senator RYAN —When you automatically enrolled these people you said that you had not had a single letter back from someone saying that you had got it wrong?

Mr Tully —Yes.

Senator RYAN —I suppose that it is hard for someone to say you have got it wrong if that person was not at the address where the letter was received.

Mr Tully —That is true, but we did not get any ‘return to sender’ mail either.

Senator RYAN —I do not know how much junk mail you get in your letter box, Mr Tully, but I have been at my current address for nearly three years, and I have given up marking ‘return to sender’ on the mail for one person—I will not mention the name. It is a fundamental flaw; you cannot say you that have not got it wrong if you only send a letter to the address that you have, and that is not where the person is. You are then relying on a ‘return to sender’ approach from the resident of that address are you not?

Mr Tully —I may not have made it clear; the data that we used was very fresh data. It was data that the students had supplied, within a matter of weeks, for the communication of their results. I would have thought the data quality was pretty good, given the period of recency.

Senator RYAN —I know, but this is the point that people like me make. We have two million more Medicare accounts than we have people. We have a couple of million more tax file numbers than we have people. Governments usually get the money bit right. It can be fresh data, it can be as rigorously sampled as you want, but you cannot say that those who were incorrectly enrolled would have let you know, because they would never have received the letter.

CHAIR —But isn’t that why you have, as you used to have in the old days, a safety provision—a reinstatement provision—because the way the Commonwealth Electoral Act is at the moment if they do not respond they get removed from the roll?

Senator RYAN —Yes, but the problem at the moment, with your reinstatement provision, is that you are assuming that people who you cannot prove exist, by virtue of their lack of activity, are real people at that address in this electorate and can vote. Are you going to compare the data of the people who you automatically enrolled, to those who refused to say why they did not attend—because you have a 40 per cent non-attendance rate—and the number of those people who were fined? Presumably, if you get a letter saying, ‘You have got a fine,’ that might be something you are more willing to open, or it might be something someone thinks is more important to return to sender. Are you going to do a comparison of that data?

Mr Tully —Yes, sure.

Senator RYAN —So, if you get more ‘return to sender’ data—let’s say some people go, ‘Oops, I didn’t do the other one, but I’ll do this one,’ and they return it to the sender—what is your reaction going to be if, for example, 20 per cent of this group of people, you suddenly realise, were not at that address on polling day?

Mr Tully —I will have to wait to get to that point.

Senator RYAN —Would you consider that to be a significant integrity issue? If a few hundred people were incorrectly automatically enrolled, would you consider that to be a significant integrity issue?

Mr Tully —If that were the case, yes, but there is no evidence to suggest that that will be the case.

Senator RYAN —No, of course. I would consider a couple of hundred people incorrectly enrolled by virtue of a lack of action on their part to be a significant integrity issue that could bring public doubt to the integrity of our elections.

Mr Tully —It could be.

Senator RYAN —And that would be much more significant, by the way, then 200 people not enrolled. There is a moral equivalence that has been created between people who refuse to enrol and people who are incorrectly enrolled by state action but I do not consider them to be equal. I would be interested in your thoughts if you did.

CHAIR —Have you read the Australian Electoral Commission’s submission to this committee?

Mr Tully —No, I have not read it in full. I have glanced at it.

CHAIR —Let me say to you that there are 12,000 people whose votes were not counted through error. They had to fill out proof of identity on the day. Because they did not bring their proof of identity back within five days or whatever to the Electoral Commission—these people were actually on the roll, not picked up on the roll on the day—their votes did not count. In terms of the overall system, the reason for that, of course, is that in the old reinstatement provisions they would have got a vote. But these are not phantoms; these are legitimate people who have come along to vote.

Mr Tully —That is right. They have made an attempt to vote, and it is the rules that knocked them out, not their motivation—although it is their motivation to some extent.

CHAIR —My concern is this. The rules are new rules. But the rules have not been consistent over 20 or 25 years. They have been changed. My suggestion is that it is incumbent on us as a committee to have a look at the impact of these rules, just as there is a moral imperative in terms of whether people have the correct address or not. I would have thought that there is a moral imperative on the pollies to create a system that does not knock out legitimate people.

Senator RYAN —I do not disagree on that. I think I said so on that.

CHAIR —Yes, I know. I think they have stacked so it is just one way; that is all.

Mr Tully —Can I just respond to my South Australian experience, to reinstatement, because that in fact did create roll divergence because they were reinstated as Commonwealth-only electors. As the state commissioner, I wrote to all of those people saying: ‘You’re a Commonwealth-only elector. We’re asking you to fulfil your obligations to become a state elector also.’ Talk about return-to-sender mail: 95 per cent of them came back ‘return to sender’. In my view, those people were not always telling the truth.

CHAIR —I will come back to this. Mr Somlyay has some questions.

Mr SOMLYAY —Very briefly: in your opening remarks you referred to the three-month rule. What is the three-month rule?

Mr Tully —The three-month rule was a rule that existed in both New South Wales and Victoria. In Victoria, it was probably administered more aggressively. What it did was that, if a person claimed a vote for an address for which they were not enrolled, that would stimulate a question as to, ‘You’re not enrolled at that address; when is the last time you lived at that address?’ If they had not lived at the address that they were on the roll for for three months, they were denied a vote.

Mr SOMLYAY —Even if their new address was in the same electorate?

Mr Tully —It did not matter. Victoria ran an address based system, so, even if you moved next door, you were not enrolled for that address so your vote was out. That was the three-month rule.

CHAIR —That was, but it was removed, wasn’t it?

Mr Tully —It was removed on the basis that, in the suite of reforms that the parliament passed, there needed to be attention given to that particular matter; automatic enrolment and more aggressive follow-up of electors on the move would result in fewer people being disenfranchised through that; and it did not sit comfortably with that suite of reforms.

CHAIR —You were around in the days when there were subdivisions within divisions and, indeed, if you moved outside your subdivision, even within the division, your vote was lost.

Mr Tully —That is right.

CHAIR —There were then provisions put in to reinstate people’s voting rights—

Mr Tully —Yes.

CHAIR —because it really is about enfranchisement.

Mr Tully —Yes, it is.

CHAIR —That has subsequently been changed.

Mr Tully —Yes, but in Victoria, Chair, there was no partial scrutiny either. Once an envelope was rejected, or a vote was rejected, neither vote counted, even if they were correctly enrolled for the region for the upper house. None counted. Whereas, in other jurisdictions—in South Australia—you can have partial admittance of the upper house paper if they are on the roll somewhere in the state, because the upper house is the whole state.

CHAIR —Is it your experience, Mr Tully, that there is a lot more movement these days than there used to be? Or is it as a result of the change in building codes, where you are knocking down a house on a quarter-acre block and building duplexes on it?

Mr Tully —I think the census will give us more information on that, but we have always estimated that 15 to 20 per cent of the population move every year. I suspect people are a lot more mobile, and young people are a lot more mobile, not only within Australia but overseas, and I will be looking forward very much to some comparison of enrolment rates against the new census data, which has to take into account some new assumptions about the number of Australians who are living overseas.

CHAIR —I know that my electorate of Banks, in 1986, was the most stable in the Commonwealth, but in the last census it was between five and eight; whereas, in the federal electorate of North Sydney, the turnover is about 50 per cent every couple of years because of the nature of it.

Senator RYAN —With election day enrolment in Victoria—I am just looking at section 108, I think it is—you need to provide a prescribed form of identification or ‘the name of a service provider from the list of service providers prescribed for the purposes of this section to enable identification of the person’. I am reading the right bit?

Mr Tully —Yes.

Senator RYAN —That is, presumably I can produce a drivers licence or, absent of having identification, I can name an organisation, or pick it from a list, who have my identity.

Mr Tully —It is a small list.

Senator RYAN —Could you provide on notice what that list is? Is it the same as the list you use for automatic enrolment?

Mr Tully —No, I can do it now. It is a very small list to start with. The motor registry: most Victorians have a motor licence or have some interaction with the motor registry. Another form of acceptable identity was a council rates notice. Another form was an energy bill. But the most—

Senator RYAN —I could have multiple council rates notices or multiple energy bills, couldn’t I, if I owned more than one property?

Mr Tully —But we would check with the council about what the nature of that was.

Senator RYAN —It might be a holiday house.

Mr Tully —Let me say that the number of people using council and energy sources as the source of identity was very, very few.

Senator RYAN —What were they using?

Mr Tully —Motor drivers licences.

Senator RYAN —Presentation or—

Mr Tully —Most of them did. Most of them had it with them, and, if they did not, they nominated the motor registry as a source that we could check with.

Senator RYAN —I look at my drivers licence from 10 years ago, and people question it as it is!

CHAIR —What, that you’re underage?

Senator RYAN —My concern again here, though, is that there is no way for you to tell from a council rates notice or from a council whether or not, to use a Victorian example, I might have a home in Armadale and a holiday house down at Barwon Heads. For tax reasons, people may inevitably try and say that the more valuable one is—so that they do not pay land tax on it. If it is down the coast, down south Barwon way, it is much more likely to be in a marginal seat. There may not be any intention there, but it is very hard for you to determine other than through the council—where people might have incentives to answer questions for other reasons, such as financial—whether or not that is actually their primary place of residence, isn’t it?

Mr Tully —Chair and members, clearly our electoral system is based on a lot of goodwill. It is also very hard, if not impossible, for me to confirm that everybody who presents at a voting centre is who they say they are—

Senator RYAN —Another question, but that is not within the ambit of this inquiry.

Mr Tully —and that the level—

Senator RYAN —But you do not have a form with a signature from them saying, ‘I live at this address,’ do you?

Mr Tully —Yes, we do. We have—

Senator RYAN —Do you have automatic enrolment?

Mr Tully —On-the-day enrolment?

Senator RYAN —On-the-day enrolment.

Mr Tully —On-the-day enrolment: we have a form that doubles as an enrolment form. And the AEC would be doing all of their background checks with all of their sophisticated techniques and have enrolled those people. I have not heard whether they have found any—and I am sure I would have if they had found a cluster of—fraudulent enrolments or ones that they were concerned about.

CHAIR —Can I just clarify this. On your other forms, though, is there a requirement for a declaration that these people live at a particular address?

Mr Tully —No. We are taking the data off the secondary schools assessment board. When we move into motor registry data, we will be looking at some of the mechanisms that you have spoken about, about informed consent, to say—

CHAIR —Change the forms.

Mr Tully —that they live there and simplifying the process. But no.

Mr SOMLYAY —What evidence have you got that these people are Australian citizens?

Mr Tully —Which ones are they, sorry?

Mr SOMLYAY —Those from motor registrations—how can you be sure that they are Australian citizens?

Mr Tully —Well they would have to declare that and there would be a checking process again so that the AEC would know, if they had been on the roll before, that they are Australian citizens. But we will be developing those business rules as we go. The parliament gave broader powers than I expected. The one that I thought they were going to hone in on was the school leavers only but they gave much broader powers so I have got to carefully implement those so that all of those questions and all of those concerns that you and your committee have can be addressed. I have not automatically enrolled anyone from a motor licence this year; I have only done school leavers.

CHAIR —But the ones you did on the day, declared that they were at that particular address on the day?

Mr Tully —They did. And they presented; they were real people. Can I just respond in terms of a quality electoral roll. One concern that I will raise with you is that when there are large numbers of people not on the roll you get interest groups, whether they be political parties or not—could be GetUp! or the right to life movement—who go out and do their own enrolment campaigns. I am not suggesting any of those groups would do anything improper, but if you are going to leave big holes or accept that there are big holes in the address register or in the list, and that people are out there collecting enrolment forms—and I understand that is happening in one state or territory as we speak—that is something that I think you need to consider in terms of your overall approach.

Senator RYAN —What do you mean by ‘consider’? In what context?

Mr Tully —That it is opening it up for groups to mobilise large workforces to go and conduct their own enrolment campaigns.

Senator RYAN —I suppose I am asking why that should concern us?

Mr Tully —Because it could be opening the capacity for fraudulent enrolment.

Senator RYAN —So it is an integrity issue?

Mr Tully —It is very much an integrity issue.

Senator RYAN —Sorry, I was not sure.

Mr Tully —I apologise again if I was not clear. In all the places where there has been major electoral fraud—the factories in Birmingham in England are always trotted out—that was because their rolls were so poor and the people on that roll were not real people. That has never been an issue in Australia.

Senator RYAN —We had, as an example, a couple of dozen people at some addresses in Brisbane, and that is a legitimate issue. That was not picked up at a federal or a state election.

CHAIR —I think the purpose of that was internal politics rather than actual—

Senator RYAN —It may well be, but that was not picked up by state or Commonwealth electoral commissions.

CHAIR —I think what Mr Tully is saying—and this is how I see it—is that this is a role that the electoral commission should be pursuing in terms of getting people on the roll. We make the laws. We say that when you turn 18 you are required to get on the roll and we should be attempting to facilitate that rather than have a third party do it. I think that is it in a nutshell.

Senator RYAN —I take your point but I suppose when organisations come before a committee or me saying ‘We think we should do it, not someone else’, I always—

CHAIR —The difference is that the Australian Electoral Commission and the Victorian Electoral Commission have been charged by the parliament to do it; they have been empowered to do it. That is the difference. We are the ones who have asked them to do it.

Senator RYAN —But not to the exclusion of others.

CHAIR —Anyone can get them on the rolls, but that is another matter. Can I then move to another point, a separate point, because I think this has been exhausted. I am interested, Mr Tully, as to how the VEC works to minimise the incidence of unintentional informality, with a view to reducing it. Is there a strategy that the VEC has in that regard?

Mr Tully —Yes, there is. This is another issue that, naturally, I evaluate the electoral program success on. In terms of informality it went down for the upper house but up for the lower house. There is a clear correlation—there is research on this that I am sure you have seen—that the more candidates that you have on the ballot paper in a fully preferential system, the more likely you are to have duplication or errors and informality. For local government elections in Victoria, in areas like Brimbank, where they can have as many as 30 or 40 candidates, the informality rate can be as high as 25 per cent for some wards.

The data is also there to support the view that informality is directly related to the electorate in which people live. In the eastern suburbs of Melbourne, informality is a lot lower than it is in the western suburbs. The population make-up is also different, and I do not think it is drawing too long a bow to say that there are socioeconomic and other factors involved in informality—and literacy, I suspect, is also a big issue in informality, particularly with blank ballot papers.

We try hard with our outreach groups. We have partnerships with AIMS and other groups in the community where we run sessions on how to vote. It is a truth that a lot the feedback we get from those sessions is: ‘We don’t know how to vote. We don’t know what it means.’ We have hard evidence in research that the Chinese and Vietnamese communities use ticks and crosses. We are doing some analysis of informality. It will be interesting to see whether we have been able to reduce the incidence of ticks and crosses in the Chinese and Vietnamese communities. We have offered options for the parliament to consider on either savings provisions or optional preferential voting because about half of those who vote informal make an attempt but fail. They either vote just ‘1’ or they get the message mixed up with the upper house and the lower house or they become confused or whatever.

CHAIR —For the record, can you explain the voting systems for the lower house and the upper house in Victoria?

Mr Tully —They are exactly the same as apply for federal elections; they are full preferential. For the lower house you have to fill in every square but the last one. For the upper house it is either ‘1’ above the line or at least five below the line. That is a little different from the Commonwealth, where it is full preferential below-the-line.

CHAIR —Has that always been the case for the upper house, or has it changed in recent years?

Mr Tully —No. There are eight regions in Victoria. There used to be provinces, which consisted of a cluster of districts, but in 2006 Victoria moved to regions and decided that you only need to vote up to five if you vote below the line.

CHAIR —So, before that, you had to number every square in the upper house?

Senator RYAN —We only have single-member electorates. It is the same as the lower house

CHAIR —The committee is interested in the increase in informality that occurred at the last election. In research paper No. 12 of 29 March the AEC has done an analysis of informal voting. I do not know whether you are aware of that.

Mr Tully —Yes, and we are doing one as well.

CHAIR —I would not mind if the committee were given a copy of that.

Mr Tully —Yes, we will share it.

CHAIR —What I am interested in—and there is not unanimity on the committee in relation to this—is whether we should look at the South Australian system and make recommendations in relation to the federal system. You spent a number of years in South Australia. Are you able to give your opinion—not necessarily in terms of the philosophy of it; that is not your area—on whether that system is working in an appropriate manner as it was initially designed to. As I understand it, informal votes still occur but they are not read as ticket votes. I am interested as to whether that should remain the case. If you move to a broader way of capturing those extra informal votes you might open it up to advertising that could undermine what you are seeking to achieve. Can you tell the committee your views as to what works and what does not work?

Mr Tully —I am naturally somewhat reluctant to talk about other jurisdictions that I have no responsibility for, but clearly I do have a recollection of my experience with the savings provisions in South Australia for the lower house. Those provisions were that any candidate could lodge up to two voting tickets, which would render an otherwise informal vote formal.

So if an elector marks a ballot paper with just the number ‘1’, and no other squares are filled in, that vote could be rendered formal if the ticket is registered with the electoral commission and that ticket gives the electoral commission the authority to translate that number 1 into a full preferential vote. Similarly, a second ticket might allow them to lodge a ticket for a partially completed ballot paper. So, as long as the elector completing that ballot paper complied with the ticket that vote would also be translated into a fully preferential vote. What I mean is, if there was a ‘1’ and a ‘2’ and it followed a ‘1’ and a ‘2’ ticket then that could also be registered and interpreted as a formal vote. South Australia have dealt with that rather tricky issue—and I remember dancing lots of times when questioned on it—by saying that the scrutiny provisions brought in the ability to count the ticket vote as a formal vote but there were general provisions that made it an offence for anyone to advocate voting other than in a fully preferential manner. I would always get asked about what happens and why it was not advocated.

The complexity of having what some people regarded as a secret provision was often a bit challenging to explain but, nonetheless, its impact was significant. My recollection in two elections that I conducted in South Australia—both were extraordinarily close—was that ticket votes accounted across the state for about four per cent. In other words, if there were not ticket votes informality would have increased by a further four per cent. So, there was a question as to whether these provisions were getting more widely known and whether they were being inflated in their number. The issue often came with scrutineers because the instructions on how ticket votes were going to be considered on the night and reported through to the tally room changed from election to election. The first time they were done in South Australia they were excluded: all ticket votes were just counted as informal. Given the volume, it was decided to move them and to count any with a ‘1’ as a formal. Scrutineers would report back in a frantic manner to their party headquarters that the electoral authorities were counting informal votes. That became an issue on the night as parties’ scrutineers were saying, ‘I don’t know what’s going on here; they’re counting informal votes.’ So that required some training and some correspondence but we overcame that in the end.

CHAIR —There was some inaccurate reporting after our South Australian hearing, where one of the national newspapers indicated that the electoral officials were actually filling in these ballot papers. That is not the way it operates in South Australia, is it?

Mr Tully —No.

CHAIR —Ballot papers are not touched by electoral officials?

Mr Tully —They are worked out in a manual count system that those ballot papers that comply with this ticket travel as a batch with all other votes, as a fully preferential vote. So, no, there is no marking of ballot papers.

CHAIR —My last observation to you is that my assessment is that the way that South Australia is structured is that whilst there is a prohibition on advertising there is no advantage for anyone to try and advertise because it is deemed a full preferential vote anyway and it can only follow a ticket vote. That is what I was trying to intimate earlier. You might get people doing a ‘1, 2, 2, 2’ if you allowed partial admission up to the ‘1’ or, if you were off a ticket vote, for them to do something else. Have you got any knowledge—if you have not then you have not—of any advertising that has been done in the 20-odd years that system has been in operation?

Mr Tully —No, there has been none. There was always a clamp down on it. As I said, I needed my best communication skills when asked by radio people and commentators in the media about that particular issue.

CHAIR —I suppose my point is that it is not just a clamp down that is the disincentive; it is that there is no point in advertising because—

Mr Tully —No, there is no advantage. It is not like you are stopping preferences flowing.

Senator RYAN —Exactly.

Mr Tully —You are rendering more votes formal.

Senator RYAN —I understand a statement of fact but the conclusion you have made, that there is no advantage in doing so, I would challenge along the following lines. You may have a party that wishes to preference another party, but would prefer for the voters to not know that. They are not going to hand out how to vote cards. This happens at local government elections occasionally, where there is, it is fair to say, a great deal of activity with people swapping preferences. You would be very familiar with that in Victoria. My point is that your conclusion, and the conclusion of the chair, is that there are no advantages in this, but I do not think the evidence leads to that. I could put to you an example where a minor party might say: ‘We’re going to run. We’re only going to get seven or eight per cent of the vote. We really hate one side, we will live with the other side, but we do not want our voters to know that we are going to preference an unpopular incumbent government or opposition so we’re going to tell our people from outside the jurisdiction of South Australia, or whichever jurisdiction such a law applies in, that you do not have to number every box.’ Is there a provision in Victorian law at the moment, Mr Tully, that prohibits people advocating a Langer vote at a state election?

Mr Tully —That is a very good question. I sense that if we took it to a court, we would find that there is not, and we will try and fix that. I do not think it is specific enough, unlike in South Australia, where it is a clear offence. Absolutely, clear. I do not think Victoria is anywhere near as clear.

Senator RYAN —The point I am making is that if someone on Twitter, or anywhere in a jurisdiction outside the state of Victoria, was undertaking activity that was deemed illegal by the Victorian Electoral Act last November, your capacity to stop them, and stop them quickly, is extremely limited in the world of current technology, isn’t it?

Mr Tully —That is true.

Senator RYAN —If this committee was meeting in South Australia during a state campaign, and if I was asked about the South Australian act and I provided a factual answer, the way you have just described the system—

Mr Tully —That is how I do describe it, yes.

Senator RYAN —would I be in breach of the law?

Mr Tully —No. You would be in breach of the law if you advocated that they vote anything other than full preferences.

Senator RYAN —It is advocating voting differently.

Mr Tully —Yes.

Senator RYAN —Explanation of the fact that if you only vote ‘1’ your vote would be counted because of the savings provision of the act, is not an offence.

Mr Tully —I think it is against the intent of the spirit. I would need to get some legal advice on that.

Senator RYAN —True, but I suppose the truth is that people who are good with words can always find a way to outline a statement of fact, and it is hard for the court to uphold the law that prevents the explanation of that law.

Mr Tully —If it is a state of mind issue, yes

Senator RYAN —When we combine that with the inability of a jurisdiction to act on bodies, organisations or people outside of that jurisdiction in an era where communication is effectively free via electronic means, it is not possible to police that particular provision that prohibits people advocating it, is it?

Mr Tully —It is complex.

Senator RYAN —It is fair to say it is getting harder?

Mr Tully —It is absolutely getting harder. Anything on Google has got American involvement now, and Americans say, ‘Take us to court.’

CHAIR —How many people voted outside of Victoria in the Victorian elections? Are you able to ascertain that?

Mr Tully —I have not got that with me.

Senator RYAN —I am more worried about someone outside of Victoria, through a national or international media outlet. It is not going to be through a paper being sold at the corner of Bourke Street, but it may well be something that comes into their inbox.

Mr Tully —You could do it anonymously, which is there already.

CHAIR —You were asked about a Langer vote in Victoria. A Langer vote is informal in Victoria.

Mr Tully —Absolutely.

CHAIR —A Langer vote is informal in South Australia. A Langer vote is informal at a national level.

Senator RYAN —The point I am making is about an interest in a minor party. I will use an example that is plausible. In New South Wales, the Greens preference Labor more often than not—I am not saying this happened; this is purely hypothetical. If the Greens wanted to preference Labor but did not want their voters knowing—it is fair to say that in the last few weeks the New South Wales Labor government was not at its most popular—it could have had people outside the jurisdiction of New South Wales advocating that you only have to vote ‘1’ if it was fully preferential like South Australia. If they said that you only have to vote ‘1’ and your vote would still be counted, they would know full well that that preference would end up with the Labor Party. And that could have been done in exchange for preferences in the upper house. Again, I clarify: I am not saying that this happened, but there are scenarios where there are advantages in the South Australian situation for political parties. We cannot say there can never be an advantage can we?

Mr Tully —I am sure you will think of a hypothetical example yet!

CHAIR —I suppose, Mr Tully, the advantage to 350,000 people at the last federal election is that their vote would have been counted.

Senator RYAN —This is again, Mr Tully, where I have a concern about language. Where some people call it ‘unintentional informality’, which is a value judgment supported sometimes by evidence, it is fair to say that in a technical sense it is noncompliance with the requirements of the Electoral Act. In the purest sense of the term, people using a tick or a cross or not numbering all but one box are simply not complying with the requirements of the act to cast a valid vote.

Mr Tully —That is a valid point to have. What I put to all committees is: I do not make these rules. I administer them but I have a responsibility to put forward to you some options and information that make you aware of the situation so that you can make whatever rules you think best fit. I am not taking any issue with what you are saying.

Senator RYAN —No, I am taking issue with the chair’s language here. ‘Unintentional informality’ is noncompliance, and we can always take a step back from value-laden terms. It is also fair to say that we have no evidence to suggest that an increase in blank ballot papers is unintentional, do we?

Mr Tully —No. I suspect there is, and I do not know if our research is detailed enough to pick it up, but messages on ballot papers are more prevalent.

CHAIR —There was an increase in blank ballot papers at the last election, according to the commissioners.

Senator RYAN —Messages not often complimentary to people on this side of the table.

Mr Tully —No, and some very unflattering diagrams as well.

Senator RYAN —I am in the Senate, so they have a bigger ballot paper to draw on then. The concern I have is that again there is no evidence that that is unintentional. The messages that I have seen on ballot papers at the state and federal poll last year, Mr Tully, I can only conclude were very intentional messages, and, by the tone of them, the ballot paper was left blank intentionally. So we do not have evidence, again, to say that blank ballot papers are unintentionally left blank as opposed to intentionally left blank.

Mr Tully —No, that is true. Through you, Chair: we try and do some evaluation of people who vote informal, but not one person that I have ever contacted or has been contacted by our office has volunteered that they vote informal.

CHAIR —Let me put this fact on the record.

Senator RYAN —But we know that public polling—I remember 1997 in Queensland. Fewer people said they were going to vote for Pauline Hanson than did when they got to the secrecy of the ballot box.

CHAIR —I just want to put a number of propositions, Mr Tully. Firstly, I do not know of anyone who is arguing to count blank ballot papers in any parliament in Australia, so they remain informal under the current system or the proposed system.

Mr Tully —It is about half, Chair.

CHAIR —But the proposition that someone can do a tick, a cross and a 1 for the senate and have their vote count yet at the same election do the same thing and have their vote not count is something that is worth consideration, as to whether the people are intending a formal vote or not, because, if the mark that you make is exactly the same for the Senate it counts, but it does not count for the House of Representatives.

Senator RYAN —But it is also fair to say that you could not get the ballot papers mixed up either.

CHAIR —The question is the mark. I think the other point is that you talked about different areas in Melbourne. Twenty-three out of 30 of the top informal federal divisions come out of New South Wales—

Mr Tully —Yes, Western Sydney.

CHAIR —13 out of 14 from Western Sydney, the 14th being Kingsford-Smith, so a composition of non-English speaking background. The informal vote in the House of Representatives tripled from 1983, from 2.1, to 6.3 per cent in 1984 when the Senate vote was simplified. These are all matters of fact that I think the committee is entitled to look at as to whether we maintain the status quo or look to change it.

We thank you for your attendance. I want to thank you both. Ms Williams, I think we let you off the hook, but I appreciate the attendance of both of you because you do not come under our jurisdiction; you were asked whether you would come along. To come along voluntarily and give evidence that can assist us in our deliberations is something we very much appreciate. We will provide you with a transcript in due course. If you need to make corrections feel free to do so. Thank you very much again and all the best.

Mr Tully —Thank you, Chair, and good luck with your deliberations.

CHAIR —It is fine. We appreciate the way in which you have given evidence and look forward to that extra material that you might be able to send us.

 [10.36 am]